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Mass DOMA Cases - Joint Proposal

Mass DOMA Cases - Joint Proposal

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Published by Kathleen Perrin
Joint Proposal Regarding Further Proceedings filed in the Mass DOMA cases on appeal in First Circuit. Filed 3/18/2011 (Gill v. OPM and Mass v. HHS)
Joint Proposal Regarding Further Proceedings filed in the Mass DOMA cases on appeal in First Circuit. Filed 3/18/2011 (Gill v. OPM and Mass v. HHS)

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Published by: Kathleen Perrin on Mar 18, 2011
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03/18/2011

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Case: 10-2204 Document: 00116185214 Page: 1

Date Filed: 03/18/2011

Entry ID: 5534787

IN THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT COMMONWEALTH OF MASSACHUSETTS Plaintiff-Appellee, v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al., Defendants-Appellants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

No. 10-2204

DEAN HARA, Plaintiff-Appellee/Cross-Appellant, NANCY GILL, et al., Plaintiffs-Appellees v. OFFICE OF PERSONNEL MANAGEMENT, et al., Defendants-Appellants/Cross-Appellees.

Nos. 10-2207; 10-2214

JOINT PROPOSAL REGARDING FURTHER PROCEEDINGS These consolidated cases present challenges to the constitutionality of Section 3 of the Defense of Marriage Act (“DOMA”), 1 U.S.C. § 7. On February 23, 2011, the President and the Attorney General of the United States announced their determination that Section 3 of DOMA, as applied to same-sex couples who are legally married under state law, violates the equal protection component of the Fifth Amendment. On February 24, 2011, the federal government parties filed a copy of

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Date Filed: 03/18/2011

Entry ID: 5534787

the Attorney General’s letter to Congress setting forth the reasons for this determination and assuring Congress that the Department of Justice will endeavor to preserve “a full and fair opportunity” for Congress “to participate in the litigation” challenging the constitutionality of Section 3 of DOMA. AG Letter at 6. On February 25, 2011, this Court issued an order directing the parties “to confer and file a joint proposal as to how these cases should proceed in light of the government’s letter of February 24, 2011.” The Court’s order included three questions specifically directed to the federal government and one directed to cross-appellant Dean Hara. The parties’ response to the Court’s order is set out below. 1. Clarification of Federal Government’s Litigation Stance. On February 23, 2011, the Attorney General notified Congress that the President and the Attorney General “have concluded that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Section 3 of DOMA is unconstitutional.” AG Letter at 2. The Attorney General instructed Department attorneys to advise courts of this determination “that a heightened standard should apply, that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3.” AG Letter at 6. The Attorney General’s letter also notes that “where the applicable standard [of review] is rational basis, . . . a reasonable argument for Section 3's constitutionality 2

Case: 10-2204 Document: 00116185214 Page: 3

Date Filed: 03/18/2011

Entry ID: 5534787

may be proffered under that permissive standard.” AG Letter at 6. Accordingly, the Department does not intend to withdraw its opening brief or to file a new, superseding opening brief. Because, as the Attorney General explained, the

government will remain a party to “continue to represent the interests of the United States throughout the litigation,” AG Letter at 6, the government reserves the right to file additional briefs on issues that implicate those interests, within the framework of a revised briefing schedule. 2. Congressional Participation. The Bipartisan Legal Advisory Group of the U.S. House of Representatives, which represents the institutional interests of the House in judicial proceedings, has informed the Executive Branch of its intention to participate in these consolidated cases to defend the constitutionality of the challenged statute. The Executive Branch respectfully requests that these cases be held in abeyance for 45 days, until May 2, 2011, to allow sufficient time for the Bipartisan Legal Advisory Group to determine the nature of its participation, to retain private counsel if it so desires and to make its views known through its own counsel directly to this Court. 3. Status of the Federal Government’s Appeals. The federal government’s current litigation position does not provide a basis for dismissal of its appeals in these consolidated cases. The Attorney General’s letter to Congress stated the Executive 3

Case: 10-2204 Document: 00116185214 Page: 4

Date Filed: 03/18/2011

Entry ID: 5534787

Branch’s intention to “remain as parties” to these cases and to “continue to represent the interests of the United States throughout the litigation.” AG Letter at 6. As further explained in the Attorney General’s letter, the President has determined “that Section 3 will continue to be enforced by the Executive Branch” and “has instructed Executive agencies to continue to comply with Section 3 of DOMA . . . unless and until Congress repeals Section 3 or the [J]udicial [B]ranch renders a definitive verdict against the law’s constitutionality.” AG Letter at 5. Moreover, the continued participation of the federal government parties in these appeals will facilitate “our interest in providing Congress a full and fair opportunity to participate in [this] litigation.” AG Letter at 6. In several other cases in which the Executive Branch has taken the position that an Act of Congress is unconstitutional but announced its intention to enforce or comply with the law pending a final judicial determination of the constitutional issue, the United States or the Executive agency involved has remained a party and the case has proceeded. The Solicitor General has taken appropriate steps in such cases to invoke Supreme Court jurisdiction in order to provide an opportunity for full judicial consideration of the constitutional question. See, e.g., INS v. Chadha, 462 U.S. 919, 930-931 (1983); United States v. Lovett, 328 U.S. 303, 306-307 (1946).

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Case: 10-2204 Document: 00116185214 Page: 5

Date Filed: 03/18/2011

Entry ID: 5534787

4. Dean Hara’s Cross-Appeal. Dean Hara's appeal should proceed and is unaffected by the government's letter of February 24, 2011. 5. Future Proceedings. Until the Bipartisan Legal Advisory Group of the U.S. House of Representatives has completed its plans for participation in these appeals, including possible retention of private counsel, it is not possible for the parties to propose a revised briefing schedule that adequately takes account of the Bipartisan Legal Advisory Group’s interests. The federal government parties in this case have respectfully requested that this Court hold these proceedings in abeyance for 45 days, until May 2, 2011, to afford the Bipartisan Legal Advisory Group an opportunity to take appropriate action so that it may seek to participate in this litigation and speak to the Court through its own counsel. On or before April 22, 2011, the Bipartisan Legal Advisory Group shall file a motion in this Court indicating the manner in which it seeks to participate in this litigation. The appellees and cross-appellant consent to holding these proceedings in abeyance for 45 days but reserve all rights and take no position at this time with respect to the matters set forth in Paragraphs 1-3 above. On or before May 2, 2011, the parties – in consultation with the House Bipartisan Legal Advisory Group – will propose a schedule for further proceedings.

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Case: 10-2204 Document: 00116185214 Page: 6

Date Filed: 03/18/2011

Entry ID: 5534787

CONCLUSION For the foregoing reasons, the parties respectfully request that these proceedings be held in abeyance for 45 days, until May 2, 2011. Respectfully submitted, s/ Maura T. Healey MAURA T. HEALEY JONATHAN B. MILLER Assistant Attorneys General One Ashburton Place Boston, MA 02108 (617) 727-2200 s/ Michael Jay Singer MICHAEL JAY SINGER AUGUST FLENTJE BENJAMIN S. KINGSLEY Attorneys, Appellate Staff Civil Division, Room 7261 U.S. Department of Justice 950 Pennsylvania Ave., N.W. Washington, D.C. 20530-0001 (202) 514-5432

MARTIN KOSKI & JAMES FITZGERALD, DEAN HARA, MARY RITCHIE & KATHLEEN BUSH, MELBA ABREU & BEATRICE HERNANDEZ, MARLIN NABORS & JONATHAN KNIGHT, MARY BOWE-SHULMAN & DORENE BOWE-SHULMAN, JO ANN WHITEHEAD & BETTE JO GREEN, RANDELL LEWIS-KENDELL, AND HERBERT BURTIS By their attorneys (continued on next page),

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Case: 10-2204 Document: 00116185214 Page: 7

Date Filed: 03/18/2011

Entry ID: 5534787

GAY & LESBIAN ADVOCATES & DEFENDERS /s/ Gary D. Buseck Gary D. Buseck, BBO # 067540 Mary L. Bonauto, BBO # 549967 Vickie L. Henry, BBO # 632367 Janson Wu, BBO # 600949 30 Winter Street, Suite 800 Boston, MA 02108 (617) 426-1350

FOLEY HOAG LLP

/s/ Claire Laporte Claire Laporte, BBO # 554979 Aara Gershengorn, BBO # 647305 Matthew Miller, BBO # 655544 Amy Senier, BBO # 672912 Catherine C. Deneke, BBO # 673871 Seaport World Trade Center West 155 Seaport Boulevard Boston, MA 02210-2600 (617) 832-1000

JENNER & BLOCK /s/ Paul M. Smith Paul M. Smith, (pro hac vice) 1099 New York Avenue, NW Suite 900 Washington, DC 20001-4412 (202) 639-6060 AS TO PLAINTIFFS-APPELLEES MARY RITCHIE & KATHLEEN BUSH, MELBA ABREU & BEATRICE HERNANDEZ, MARLIN NABORS & JONATHAN KNIGHT, MARY BOWE-SHULMAN & DORENE BOWE-SHULMAN SULLIVAN & WORCESTER LLP /s/ David J. Nagle David J. Nagle, BBO # 638385 Richard L. Jones, BBO # 631273 One Post Office Square Boston, MA 02109 (617) 338-2800 7

Case: 10-2204 Document: 00116185214 Page: 8

Date Filed: 03/18/2011

Entry ID: 5534787

CERTIFICATE OF SERVICE I hereby certify that on March 18, 2011, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the First Circuit by using the appellate CM/ECF system. I further certify that all participants in the case are registered CM/ECF users and will be served by the appellate CM/ECF system.

s/ Michael Jay Singer MICHAEL JAY SINGER (202) 514-5432 Attorney, Appellate Staff Civil Division U.S. Department of Justice 950 Pennsylvania Ave., N.W., 7266 Washington, D.C. 20530-0001

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