March 7, 2012
By Electronic Case Filing
The Honorable Margaret Carter, Clerk of CourtUnited States Court of Appeals for the First CircuitJohn Joseph Moakley U.S. Courthouse1 Courthouse Way, Suite 2500Boston, MA 02210
Gill v. Office of Personnel Management
,Nos. 10-2204, 10-2207 & 10-2214
Dear Ms. Carter:Pursuant to Rule 28(j), the Bipartisan Legal Advisory Group of the U.S.House of Representatives submits this letter regarding
Golinski v. U.S. Office of Personnel Management
, 2012 WL 569685 (N.D. Cal. Feb. 22, 2012),
,No. 12-15388 (9th Cir. Feb. 24, 2012).The
decision suffers from significant flaws. First, the court did notseriously engage
Baker v. Nelson
, 409 U.S. 810 (1972).
held that the EqualProtection Clause does not require the States to define marriage to include same-sex relationships. The
’s effect on state marriagelaws.
, at *8 n.5. But it went on to invalidate DOMA withoutexplaining why the result would be different under federal law.
See AdarandConstructors, Inc. v. Pena
, 515 U.S. 200, 217 (1995) (“‘[t]his Court’s approach toFifth Amendment equal protection claims has always been precisely the same as toequal protections claims under the Fourteenth Amendment.’”).Second, the
court failed to follow binding Ninth Circuit precedentholding that classifications based on sexual orientation are analyzed under therational basis test.
High Tech Gays v. Defense Indus. Sec. Clearance Office
, 895F.2d 563 (9th Cir. 1990). Instead, it declared that
is “outdated” and “nolonger binding precedent.”
, at *10. In so doing, the
courtnot only exceeded its authority as a district court, but became the only Article IIIcourt to hold that DOMA is subject to heightened scrutiny.
Lawrence v. Texas
, 539 U.S. 558 (2003), but the Ninth Circuit has held that
, a substantive due process case, did not change the Circuit’s standard of
Case: 10-2207 Document: 00116344212 Page: 1 Date Filed: 03/07/2012 Entry ID: 5624264