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1 Paul D. Clement (DC Bar 433215) pclement@bancroftpllc.com 2 H. Christopher Bartolomucci (DC Bar 453423) 3 cbartolomucci@bancroftpllc.com Nicholas J. Nelson (DC Bar 1001696) 4 nnelson@bancroftpllc.com 5 Michael H. McGinley (DC Bar 1006943) mmcginley@bancroftpllc.com 6 7 BANCROFT PLLC 1919 M Street, N.W. 8 Suite 470 9 Washington, D.C. 20036 10 202-234-0090 (telephone) 202-234-2806 (facsimile) 11 12 Of Counsel: Kerry W. Kircher, General Counsel (DC Bar 386816) 13 Kerry.Kircher@mail.house.gov 14 William Pittard, Deputy General Counsel (DC Bar 482949) William.Pittard@mail.house.gov 15 Christine Davenport, Senior Assistant Counsel (NJ Bar 043682000) 16 Christine.Davenport@mail.house.gov Todd B. Tatelman, Assistant Counsel (VA Bar 66008) 17 Todd.Tatelman@mail.house.gov 18 Mary Beth Walker, Assistant Counsel (DC Bar 501033) MaryBeth.Walker@mail.house.gov 19 Eleni M. Roumel, Assistant Counsel (SC Bar 75763) 20 Eleni.Roumel@mail.house.gov 21 OFFICE OF GENERAL COUNSEL, 22 U.S. HOUSE OF REPRESENTATIVES 219 Cannon House Office Building 23 Washington, D.C. 20515 24 202-225-9700 (telephone) 202-226-1360 (facsimile) 25 26 Counsel for Intervenor-Defendant the Bipartisan Legal Advisory Group of the U.S. House of Representatives 27 28

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA Southern Division ___________________________________ ) MARTIN R. ARANAS, IRMA ) No. 8:12-cv-01137-CBM (AJWx) RODRIGUEZ, and JANE DeLEON, ) ) EX PARTE APPLICATION Plaintiffs, ) OF INTERVENOR) DEFENDANT FOR LEAVE v. ) TO FILE TWO SEPARATE ) LEGAL MEMORANDA, JANET NAPOLITANO, et al., ) EACH IN EXCESS OF 25 ) PAGES Defendants, ) ) Hon. Consuelo B. Marshall BIPARTISAN LEGAL ADVISORY ) GROUP OF THE U.S. HOUSE OF ) REPRESENTATIVES, ) ) Intervenor-Defendant. ) ___________________________________ ) On October 4, 2012, the Court denied the Ex Parte Application of Intervenor-Defendant for Reconsideration of September 19, 2012 Order or, in the Alternative, for Leave to File Consolidated Memorandum Consistent with Local

20 Rule 11-6 (Oct. 2, 2012) (ECF No. 47). See In Chambers Order (Oct. 4, 2012) (ECF No. 48).1 The Order indicated that “[t]he Court would find it more helpful to have the benefit of briefing on BLAG’s Motion to Dismiss and separate briefing on

24 Plaintiffs’ Motion for Preliminary Injunction.” Id. at 1.

27 until 6:44 p.m. on Friday, October 5, 2012. See ECF Printout, attached at Tab 1. 28 1

1

Although the Order is dated October 4, 2012, we did not receive notice of the Order

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In light of the Court’s direction, and pursuant to Local Rule 7-19,

2 Intervenor-Defendant the Bipartisan Legal Advisory Group of the U.S. House of Representatives (“House”) respectfully requests that the Court accept for filing the

5 following two separate memoranda: ● the House’s Memorandum of Points and Authorities in Support of the House’s Motion to Dismiss (Oct. 9, 2012), attached at Tab 2;2 and ● the House’s Opposition to Plaintiffs’ Motion for Preliminary Injunction (Oct. 9, 2012), attached at Tab 3.3 Each of these two memoranda is more than 25 pages in length. The first is

13 44 pages in length and the second is 49 pages in length. The length of each 14 memoranda is a function of the importance of the constitutional issues at stake in 15 16 this litigation; the complexity of the relevant factual, procedural, and legal

17 background; the intricacies of the relevant immigration laws, regulations, and 18 procedures; and the significant volume of constitutional analysis that is relevant to 19 the issues presented by the House’s Motion to Dismiss and Plaintiffs’ Preliminary 20 21 Injunction Motion. Each is fully self-contained and there is no cross-referencing 22 between the two. 23 24 25
The House filed its motion to dismiss on September 14, 2012. See [House’s] Motion . . . to Dismiss (Sept. 14, 2012) (ECF No. 36) (“House’s Motion to Dismiss”).
3 2

26 Plaintiffs’ Motion for Preliminary Injunction (Aug. 23, 2012) (ECF No. 12) (“Plaintiffs’ 27 Preliminary Injunction Motion”). 28 2

Plaintiffs filed their motion for preliminary injunction on August 23, 2012. See

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1 3 4

We note, however, that there is a very substantial overlap in the arguments

2 and analyses presented in each memoranda such that the total number of pages of analysis and argument, taking into account that overlap, is no more than 50

5 (consistent with Local Rule 11-6). Cf. In Chambers Order (Sept. 19, 2012) (ECF 6 No. 42) (granting motion of Executive Branch defendants to exceed page limits). 7 8 9 10 11 12 We have not added any substantive arguments to the revised memoranda. A proposed Order is submitted herewith and oral argument is not requested. LOCAL RULE 7-19.1 STATEMENT On October 9, 2012, counsel for the House conferred with Jesi J. Carlson,

13 counsel for the Executive Branch Defendants, and with Peter Schey, counsel for 14 Plaintiffs. Ms. Carlson advised that her clients do not oppose this application, and 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 Mr. Schey advised that his clients do not consent to this application. CONCLUSION For all the foregoing reasons, the Court should grant this Ex Parte Application.

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1 2 3 4 5 6 7 8 October 9, 2012 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Respectfully submitted, By: /s/ Paul D. Clement Paul D. Clement BANCROFT PLLC4 Counsel for Intervenor-Defendant the Bipartisan Legal Advisory Group of the U.S. House of Representatives5

Kerry W. Kircher, as ECF filer of this document, attests that concurrence in the filing of the document has been obtained from signatory Paul D. Clement. 5 The Bipartisan Legal Advisory Group, which speaks for the House in litigation matters, currently is comprised of the Honorable John A. Boehner, Speaker of the House, the Honorable Eric Cantor, Majority Leader, the Honorable Kevin McCarthy, Majority Whip, the Honorable Nancy Pelosi, Democratic Leader, and the Honorable Steny H. Hoyer, Democratic Whip. The Democratic Leader and the Democratic Whip have declined to support the position taken by the Group on the merits of DOMA Section 3’s constitutionality in this case.

4

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CERTIFICATE OF SERVICE I certify that on October 9, 2012, I electronically filed the foregoing Ex Parte

3 Application of Intervenor-Defendant for Leave to File Two Separate Legal 4 Memoranda, Each in Excess of 25 Pages with the Clerk of Court by using the 5 CM/ECF system, which provided an electronic notice and electronic link of the 6 same to the following attorneys of record through the Court’s CM/ECF system: 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Peter A. Schey, Esq. Carlos Holguín, Esq. CENTER FOR HUMAN RIGHTS AND CONSTITUTIONAL LAW 256 South Occidental Boulevard Los Angeles, CA 90057 Julie Greenwald Marzouk, Esq. Monica Nikole Ashiku, Esq. PUBLIC LAW CENTER 601 Civic Center Drive West Santa Ana, CA 92701 Beatrice Ann M. Pangilinan, Esq. ASIAN LAW ALLIANCE 184 Jackson Street San Jose, CA 95112 Gary H. Manulkin, Esq. Reyna M. Tanner, Esq. LAW OFFICES OF MANULKIN & BENNETT 10175 Slater Avenue, Suite 111 Fountain Valley, CA 92708

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Jesi J. Carlson, Esq. Timothy Michael Belson, Esq. Lana L. Vahab, Esq. Katherine E.M. Gottel, Esq. UNITED STATES DEPARTMENT OF JUSTICE Office of Immigration Litigation P.O. Box 868, Ben Franklin Station Washington, DC 20044 /s/ Kerry W. Kircher Kerry W. Kircher

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Tab 1

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From: To: Subject: Date:

cacd ecfmail@cacd.uscourts.gov ecfnef@cacd.uscourts.gov Activity in Case 8:12-cv-01137-CBM-AJW Martin R Aranas et al v. Janet Napolitano et al Order on Ex Parte Application for Reconsideration Friday, October 05, 2012 6:45:04 PM

This is an automatic e-mail message generated by the CM/ECF system. Please DO NOT RESPOND to this e-mail because the mail box is unattended. ***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. However, if the referenced document is a transcript, the free copy and 30 page limit do not apply. UNITED STATES DISTRICT COURT for the CENTRAL DISTRICT OF CALIFORNIA Notice of Electronic Filing The following transaction was entered on 10/5/2012 at 3:43 PM PDT and filed on 10/4/2012 Case Name: Martin R Aranas et al v. Janet Napolitano et al Case Number: 8:12-cv-01137-CBM-AJW Filer: Document Number: 48 Docket Text: ORDER by Judge Consuelo B. Marshall: DENYING [47] Unopposed Ex Parte Application of Intervenor-Defendant The Bipartisan Legal Advisory Group of the U.S. House of Representatives ("BLAG") for Reconsideration of this Court's September 19, 2012 Order re: Leave to File a Consolidated Memorandum in Excess of Twenty-Five Pages (the "Application"). The Court would find it more helpful to have the benefit of briefing on BLAG's Motion to Dismiss and separate briefing on Plaintiffs' Motion for Preliminary Injunction. (lom) 8:12-cv-01137-CBM-AJW Notice has been electronically mailed to: Timothy Michael Belsan timothy.m.belsan@usdoj.gov cbartolomucci@bancroftpllc.com

H Christopher Bartolomucci Paul D Clement

pclement@bancroftpllc.com

Christine Davenport william.pittard@mail.house.gov, kerry.kircher@mail.house.gov, christine.davenport@mail.house.gov, marybeth.walker@mail.house.gov, todd.tatelman@mail.house.gov

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Monica Nikole Ashiku Lana L Vahab Todd Tatelman

mashiku@publiclawcenter.org

lana.vahab@usdoj.gov todd.tatelman@mail.house.gov reynatanner@yahoo.com

Reyna Manulkin Tanner Nicholas J Nelson Gary H Manulkin

nnelson@bancroftpllc.com reynatanner@yahoo.com, gmanulkin@mgblaw.com

Carlos Holguin crholguin@centerforhumanrights.org, pschey@centerforhumanrights.org, mbehr@centerforhumanrights.org, kheredia@centerforhumanrights.org Mary Beth Walker marybeth.walker@mail.house.gov jgreenwald@publiclawcenter.org

Julie Greenwald Marzouk

Jesi J Carlson jesi.j.carlson@usdoj.gov, kate.goettel@usdoj.gov, timothy.m.belsan@usdoj.gov William B Pittard william.pittard@mail.house.gov kate.goettel@usdoj.gov

Katherine E Melloy Goettel Peter A Schey

pschey@centerforhumanrights.org, peter@peterschey.com

Kerry W Kircher kerry.kircher@mail.house.gov, jamie.whitelock@mail.house.gov, thomas.sundlof@mail.house.gov, william.pittard@mail.house.gov, christine.davenport@mail.house.gov, marybeth.walker@mail.house.gov, todd.tatelman@mail.house.gov, kristin.roscoe@mail.house.gov 8:12-cv-01137-CBM-AJW Notice has been delivered by First Class U. S. Mail or by other means BY THE FILER to : Beatrice Ann M. Pangilinan Asian Law Alliance 184 Jackson Street San Jose CA 95112

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1 Paul D. Clement (DC Bar 433215) pclement@bancroftpllc.com 2 H. Christopher Bartolomucci (DC Bar 453423) 3 cbartolomucci@bancroftpllc.com Nicholas J. Nelson (DC Bar 1001696) 4 nnelson@bancroftpllc.com 5 Michael H. McGinley (DC Bar 1006943) mmcginley@bancroftpllc.com 6 7 BANCROFT PLLC 1919 M Street, N.W. 8 Suite 470 9 Washington, D.C. 20036 202-234-0090 (telephone) 10 202-234-2806 (facsimile) 11 Of Counsel: 12 Kerry W. Kircher, General Counsel (DC Bar 386816) 13 Kerry.Kircher@mail.house.gov William Pittard, Deputy General Counsel (DC Bar 482949) 14 William.Pittard@mail.house.gov 15 Christine Davenport, Senior Assistant Counsel (NJ Bar 043682000) Christine.Davenport@mail.house.gov 16 Todd B. Tatelman, Assistant Counsel (VA Bar 66008) 17 Todd.Tatelman@mail.house.gov Mary Beth Walker, Assistant Counsel (DC Bar 501033) 18 MaryBeth.Walker@mail.house.gov 19 Eleni M. Roumel, Assistant Counsel (SC Bar 75763) Eleni.Roumel@mail.house.gov 20 21 OFFICE OF GENERAL COUNSEL, U.S. HOUSE OF REPRESENTATIVES 22 219 Cannon House Office Building 23 Washington, D.C. 20515 202-225-9700 (telephone) 24 202-226-1360 (facsimile) 25 Counsel for Intervenor-Defendant the Bipartisan 26 Legal Advisory Group of the U.S. House of Representatives 27 28

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA Southern Division ___________________________________ ) MARTIN R. ARANAS, IRMA ) No. 8:12-cv-01137-CBM (AJWx) RODRIGUEZ, and JANE DeLEON, ) ) MEMORANDUM OF Plaintiffs, ) INTERVENOR-DEFENDANT ) THE BIPARTISAN LEGAL v. ) ADVISORY GROUP OF THE ) UNITED STATES HOUSE OF JANET NAPOLITANO, et al., ) REPRESENTATIVES IN ) SUPPORT OF MOTION TO Defendants, ) DISMISS ) THE BIPARTISAN LEGAL ADVISORY ) Hearing: Nov. 6, 2012 GROUP OF THE U.S. HOUSE OF ) Time: 10:00 a.m. REPRESENTATIVES, ) Hon. Consuelo B. Marshall ) Intervenor-Defendant. ) ___________________________________ )

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TABLE OF CONTENTS

3 TABLE OF AUTHORITIES .................................................................. iii 4 INTRODUCTION .................................................................................. 1 5 BACKGROUND .................................................................................... 1 6 I. Factual Background, as Alleged......................................... 1 7 II. Procedural Background ...................................................... 4 8 A. House’s Motion to Dismiss ........................................... 4 9 B. Plaintiffs’ Motion for Preliminary Injunction ............... 6 10 III. Legal Background .............................................................. 6 11 A. DOMA’s Legislative Branch History ........................... 7 12 13 14 15 16 I. II. Rule 12(b)(1): Subject Matter Jurisdiction ....................... 13 Rule 12(b)(6): Failure to State a Claim ............................. 13 B. DOMA’s Executive Branch History ............................. 11 STANDARD OF REVIEW .................................................................... 13

17 ARGUMENT .......................................................................................... 14 18 19 20 21 22 23 24 25 26 27 28 i III. I. II. Plaintiffs Lack Standing to Challenge DOMA Section 3 .. 14 DOMA Section 3 Must Be Presumed to Be Constitutional ..................................................................... 15 DOMA Section 3 Satisfies Equal Protection Principles .... 16 A. Binding Precedent Foreclose Plaintiffs’ Equal Protection Claim............................................................ 16 1. Binding Supreme Court Authority: Baker v. Nelson ........................................................ 16 2. Binding Ninth Circuit Authority: Adams v. Howerton .................................................. 19 B. Rational Basis Review Applies to DOMA Section 3 ... 19

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 V. IV.

1. DOMA Section 3 Does Not Classify on the Basis of Gender ........................................................ 21 C. DOMA Section 3 Satisfies Rational Basis Review ...... 22 1. Uniquely Federal Interests ....................................... 25 a. Maintaining a Uniform Federal Definition of Marriage .............................................................. 25 b. Preserving the Public Fisc and Previous Legislative Judgments......................................... 27 c. Caution in Facing the Unknown Consequences of a Novel Redefinition of a Foundational Social Institution ................................................. 29 2. Common Federal-State Interests .............................. 31 a. Subsidizing the Begetting and Raising of Children............................................................... 33 b. Encouraging and Subsidizing the Raising of Children by Their Own Biological Mothers and Fathers ................................................................. 35 c. Encouraging Childrearing in a Setting with Both a Mother and a Father ................................ 37 DOMA Section 3 Satisfies Substantive Due Process Principles ............................................................................ 38 A. No Fundamental Liberty Interest Is at Stake ................ 38 B. DOMA Does Not Infringe Plaintiffs’ Purported Liberty Interest .............................................................. 41 Let the Democratic Process Work...................................... 43

21 CONCLUSION ....................................................................................... 44 22 23 24 25 26 27 28 ii

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TABLE OF AUTHORITIES

Constitutional Provisions, Statutes, and 3 Federal Rules of Civil Procedure 4 1 U.S.C. § 7 ............................................................................................. 1 5 6 5 U.S.C. § 8101 ....................................................................................... 7 7 5 U.S.C. § 8341 ....................................................................................... 7 8 8 U.S.C. § 1101 ....................................................................................... 1 9 8 U.S.C. § 1151 ....................................................................................... 2, 14, 19 10 11 8 U.S.C. § 1152 ....................................................................................... 2 12 8 U.S.C. § 1153 ....................................................................................... 2 13 8 U.S.C. § 1182 ....................................................................................... passim 14 8 U.S.C. § 1186a ..................................................................................... 7 15 16 8 U.S.C. § 1255 ....................................................................................... 3 17 26 U.S.C. § 7703 ..................................................................................... 7 18 28 U.S.C. § 1257 ..................................................................................... 16, 17 19 38 U.S.C. § 101 ....................................................................................... 7 20 38 U.S.C. § 103 ....................................................................................... 27 21 22 42 U.S.C. § 416 ....................................................................................... 7 23 Don’t Ask, Don’t Tell Repeal Act of 2010, Pub. L. No. 111-321, 124 Stat. 3515 (2010), 10 U.S.C. §§ 651, 24 654 ................................................................................................ 43 25 26 Homeland Sec. Act of 2002, Pub. L. No. 106-296, 116 Stat. 2135 (2002) ................................ 2 27 28 iii

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1 Morrill Anti-Bigamy Act, ch. 126, § 1, 12 Stat. 501, 501 (1862) .......... 7 2 Revenue Act of 1921, § 223(b)(2), 42 Stat. 227, 250 ............................... 6 3 Fla. Const. art. I, § 27.............................................................................. 26 4 5 6 Legislative Documents 7 142 Cong. Rec. (1996) ............................................................................ passim 8 150 Cong. Rec. (2004) ............................................................................ passim 9 10 152 Cong. Rec. (2006) ............................................................................ 26, 30 11 32 Weekly Comp. Pres. Doc. .................................................................. 7 12 Defense of Marriage Act: Hearing on H.R. 3396 Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 13 104th Cong. 32 (1996) .................................................................. passim 14 15 Defense of Marriage Act: Hearing on S. 1740 Before the S. Comm. on the Judiciary, 104th Cong. (1996) ........................................... 12 16 17 H.R. Rep. No. 104-664 (1996) ................................................................ passim 18 Respect for Marriage Act, H.R. 1116, 112th Cong. (2011).................... 43 19 The Respect for Marriage Act, S. 598, 112th Cong. (2011) ................... 43 20 21 22 Cases 23 Able v. United States, 155 F.3d 628 (2d Cir. 1998) ......................................................... 20 24 25 Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982) ...................................................... passim 26 27 28 iv

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1 Adams v. Howerton, 486 F. Supp. 1119 (C.D. Cal. 1980) ................................................ 6 2 3 Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 115 S. Ct. 2097, 132 L. Ed. 2d 158 (1995) ........... 17 4 5 Andersen v. King Cnty., 138 P.3d 963, 158 Wash. 2d 1 (Wash. 2006) ............................... 18, 22, 32 6 7 Ass’n of Residential Res. in Minn., Inc. v. Gomez, 51 F.3d 137 (8th Cir. 1995) .......................................................... 28 8 Aufort v. Aufort, 9 49 P.2d 620, 9 Cal. App. 2d 310 (Cal. Dist. Ct. App. 1935) ........ 32 10 Baehr v. Lewin, 11 852 P.2d 44, 74 Haw. 530 (Haw. 1993) ....................................... 8 12 Baker v. Nelson, 13 409 U.S. 810, 93 S. Ct. 37, 34 L. Ed. 2d 65 (1972) ..................... 5 14 Baker v. Nelson, 15 191 N.W.2d 185, 291 Minn. 310 (Minn. 1971) ........................... 16 16 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696 (9th Cir. 1988) ........................................................ 13 17 18 Ballard v. United States, 329 U.S. 187, 193, 67 S. Ct. 261, 91 L. Ed. 181 (1946) .............. 37 19 20 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) ........... 14 21 22 Ben-Shalom v. Marsh, 881 F.2d 454 (7th Cir. 1989) ........................................................ 20 23 24 Bishop v. Holder, No. 4:04-cv-00848 (N.D. Okla.)................................................... 13 25 26 Bowen v. Gilliard, 483 U.S. 587, 107 S. Ct. 3008, 97 L. Ed. 2d 485 (1987) ............. 41 27 28 v

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1 Bowen v. Owens, 476 U.S. 340, 106 S. Ct. 1881, 90 L. Ed. 2d 316 (1986) ............. 28 2 3 Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336 (9th Cir. 1996) .......................................................... 14 4 5 Califano v. Jobst, 434 U.S. 47, 98 S. Ct. 95, 54 L. Ed. 2d 228 (1977) ..................... 41 6 7 Catholic Soc. Servs., Inc. v. Reno, 134 F.3d 921 (9th Cir. 1997) ........................................................ 41 8 Citizens for Equal Prot. v. Bruning, 9 455 F.3d 859 (8th Cir. 2006) ........................................................... 20, 21, 32 10 City of Cleburne, Tex. v. Cleburne Living Ctr., 11 473 U.S. 432, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985) ............. 19 12 City of Dallas v. Stanglin, 13 490 U.S. 19, 109 S. Ct. 1591, 104 L. Ed. 2d 18 (1989) .................. 22 14 City of S. Lake Tahoe v. Cal. Tahoe Reg’l Planning Agency, 15 625 F.2d 231 (9th Cir. 1980) ........................................................ 13 16 Collins v. City of Harker Heights, Tex., 503 U.S. 115, 112 S. Ct. 1061, 117 L. Ed. 2d 261 (1992) ........... 38 17 18 Conaway v. Deane, 932 A.2d 571, 401 Md. 219 (Md. 2007) ...................................... 22, 32 19 20 Cook v. Gates, 528 F.3d 42 (1st Cir. 2008)........................................................... 20 21 22 Cozen O’Connor v. Tobits, No. 2:11-cv-00045 (E.D. Pa.) ....................................................... 12 23 24 Dailey v. Veneman, No. 01-3146, 2002 WL 31780191 (6th Cir. Dec. 3, 2002) .......... 27 25 26 Dandridge v. Williams, 397 U.S. 471, 90 S. Ct. 1153, 25 L. Ed. 2d 491 (1970) ............... 28 27 28 vi

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1 Davis v. Prison Health Servs., 679 F.3d 433 (6th Cir. 2012) ....................................................... 20 2 3 Dean v. District of Columbia, 653 A.2d 307, 63 USLW 307 (D.C. 1995) ..................................... 6-7 4 5 DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 109 S. Ct. 998, 103 L. Ed. 2d 249 (1989) ............. 41 6 7 Dragovich v. U.S. Dep’t of Treasury, No. 4:10-cv-01564 (N.D. Cal.) ..................................................... 12, 21 8 Druker v. Comm’r, 9 697 F.2d 46 (2d Cir. 1982) ........................................................... 42 10 FCC v. Beach Commc’ns, Inc., 11 508 U.S. 307, 113 S. Ct. 2096, 124 L. Ed. 2d 211 (1993)............. 22, 23, 24 12 Fiallo v. Bell, 13 430 U.S. 787, 97 S. Ct. 1473, 52 L. Ed. 2d 50 (1977) ................. 40 14 Forrester v. White, 15 484 U.S. 219, 108 S. Ct. 538, 98 L. Ed. 2d 555 (1988) ............... 34 16 Frontiero v. Richardson, 411 U.S. 677, 93 S. Ct. 1764, 36 L. Ed. 2d 583 (1973) ............... 20 17 18 Golinski v. U.S. Office of Pers. Mgmt., 824 F. Supp. 2d 968 (N.D. Cal. 2012) .......................................... 21 19 20 Golinski v. U.S. Office of Pers. Mgmt., No. 3:10-cv-00257 (N.D. Cal.) ..................................................... 12 21 22 Golinski v. Office of Pers. Mgmt., Nos. 12-15388 & 12-15409 (9th Cir.) .......................................... 12 23 24 Hamilton v. City of San Bernardino, 107 F. Supp. 2d 1239 (C.D. Cal. 2000) ........................................ 13 25 26 Harris v. McRae, 448 U.S. 297, 100 S. Ct. 2671, 65 L. Ed. 2d 784 (1980) ............. 42 27 28 vii

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1 Hassan v. Wright, 45 F.3d 1063 (7th Cir. 1995) ........................................................ 28 2 3 Heller v. Doe, 509 U.S. 312, 113 S. Ct. 2637, 125 L. Ed. 2d 257 (1993) ........... 22, 23, m37 4 5 Hernandez v. Robles, 855 N.E.2d 1, 7 N.Y.3d 388, 821 N.Y.S.2d 770 (N.Y. 2006) ..... 32, 36 6 7 Hicks v. Miranda, 422 U.S. 332, 95 S. Ct. 2281, 45 L. Ed. 2d 223 (1975) ............... 17, 18 8 High Tech Gays v. Def. Indus. Sec. Clearance Office, 9 895 F.2d 563 (9th Cir. 1990) ....................................................... 5, 20 10 I.N.S. v. Pangilinan, 11 486 U.S. 875, 108 S. Ct. 2210, 100 L. Ed. 2d 882 (1988) ........... 40 12 In re Balas, 13 449 B.R. 567 (Bankr. C.D. Cal. 2011) ......................................... 35 14 In re Cardelucci, 15 285 F.3d 1231 (9th Cir. 2002) ...................................................... 25 16 In re Cooper, 592 N.Y.S.2d 797, 187 A.D.2d 128 (N.Y. App. Div. 1993) ........ 18 17 18 In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004)..................................... 21, 22 19 20 In re Levenson, 587 F.3d 925 (9th Cir. E.D.R. 2009) ............................................ 34 21 22 In re Levenson, 560 F.3d 1145 (9th Cir. E.D.R. 2009) .......................................... 34 23 24 In re Marriage Cases, 183 P.3d 384, 76 Cal. Rptr. 683 (Cal. 2008) ................................ 22 25 26 Izenberg v. ETS Servs., LLC, 589 F. Supp. 2d 1193 (C.D. Cal. 2008) ....................................... 14 27 28 viii

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1 Jackson v. Abercrombie, No. 11-00734, -- F. Supp. 2d --, 2012 WL 3255201 2 (D. Haw. Aug. 8, 2012) ................................................................ 22, 40 3 Jimenez v. Weinberger, 4 417 U.S. 628, S. Ct. 2496, 41 L. Ed. 2d 363 (1974) .................... 23 5 Johnson v. Johnson, 6 385 F.3d 503 (5th Cir. 2004) ....................................................... 20 7 Johnson v. Robison, 8 415 U.S. 361, 94 S. Ct. 1160, 39 L. Ed. 2d 389 (1974) ............... 24 Lawrence v. Texas, 539 U.S. 558, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003) ........... passim 10 11 Lofton v. Sec’y of Dep’t of Children & Family Servs., 358 F.3d 804 (11th Cir. 2004) ...................................................... 20 12 13 Lui v. Holder, No. 2:11-cv-01267 (C.D. Cal.) ..................................................... passim 14 15 Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992) ........... 13, 15 16 17 Lyng v. Auto. Workers, 485 U.S. 360, 108 S. Ct. 1184, 99 L. Ed. 2d 380 (1988) ............. 41-42 18 19 Mandel v. Bradley, 432 U.S. 173, 97 S. Ct. 2238, 53 L. Ed. 2d 199 (1977) ............... 17 20 21 Marsh v. Chambers, 463 U.S. 783, 103 S. Ct. 3330, 77 L. Ed. 2d 1019 (1983) ........... 31 22 23 Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 96 S. Ct. 2562, 49 L. Ed. 2d 520 (1976) ............... 20 24 Massachusetts v. U.S. Dep’t of HHS, 25 682 F.3d 1 (1st Cir. 2012) ................................................................ 20, 25, 28 26 27 28 ix 9

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1 Massachusetts v. U.S. Dep’t of HHS, Nos. 10-2204, 10-2207, & 10-2214 (1st Cir. Sept. 22, 2011) ...... 12 2 3 Mathews v. Diaz, 426 U.S. 67, 96 S. Ct. 1883, 48 L. Ed. 2d 478 (1976) ................. 23 4 5 McConnell v. FEC, 540 U.S. 93, 124 S. Ct. 619, 157 L. Ed. 2d 491 (2003) ............... 15 6 7 McConnell v. Nooner, 547 F.2d 54 (8th Cir. 1976) .......................................................... 18 8 Mier v. Owens, 9 57 F.3d 747 (9th Cir. 1995) .......................................................... 14 10 Miller v. Albright, 11 523 U.S. 420, 118 S. Ct. 1428, 140 L. Ed. 2d 575 (1998) ........... 40 12 Morrison v. Sadler, 13 821 N.E.2d 15 (Ind. Ct. App. 2005) ............................................. 18 14 Mullins v. Oregon, 15 57 F.3d 789 (9th Cir. 1995) .......................................................... 36, 40 16 Murphy v. Ramsey, 114 U.S. 15, 5 S. Ct. 747, 29 L. Ed. 47 (1885) ............................ 9 17 18 Nat’l Gay Task Force v. Bd. of Educ’n of Okla. City, 729 F.2d 1270 (10th Cir. 1984) ................................................... 20 19 20 New State Ice Co. v. Liebmann, 285 U.S. 262, 52 S. Ct. 371, 76 L. Ed. 747 (1932) ...................... 30 21 22 Nuclear Info. & Res. Serv. v. Nuclear Reg. Comm’n, 457 F.3d 941 (9th Cir. 2006) ........................................................ 15 23 24 Nuñez-Reyes v. Holder, 602 F.3d 1102 (9th Cir. 2010) ...................................................... 27 25 26 Nuñez-Reyes v. Holder, 646 F.3d 684 (9th Cir. 2011) ........................................................ 27 27 28 x

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1 Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 129 S. Ct. 2504, 174 L. Ed. 2d 140 (2009).............. 15 2 3 Orient v. Linus Pauling Inst. of Sci. & Med., 936 F. Supp. 704 (D. Ariz. 1996) ................................................. 13 4 5 Padula v. Webster, 822 F.2d 97 (D.C. Cir. 1987) ........................................................ 20 6 7 Pedersen v. Office of Personnel Mgmt., No. 3:10-cv-1750, -- F. Supp. 2d. --, 2012 WL 3113883 8 (D. Conn. July 31, 2012) .............................................................. 21 Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012) ..................................................... 18, 19, 20 10 11 Phila. Police & Fire Ass’n for Handicapped Children, Inc. v. City of Philadelphia, 874 F.2d 156 (3d Cir. 1989) .................................. 42 12 13 Plyler v. Doe, 457 U.S. 202, 102 S. Ct. 2382, 72 L. Ed. 2d 786 (1982) ............ 28 14 15 Price-Cornelison v. Brooks, 524 F.3d 1103 (10th Cir. 2008) ................................................... 20 16 17 Raich v. Gonzalez, 500 F.3d 850 (9th Cir. 2007) ........................................................ 39 18 19 Regan v. Taxation With Representation of Wash., 461 U.S. 540, 103 S. Ct. 1997, 76 L. Ed. 2d 129 (1983) ............. 25, 42 20 21 Regan v. Time, Inc., 468 U.S. 641, 104 S. Ct. 3262, 82 L. Ed. 2d 487 (1984)................ 15 22 23 Renne v. Geary, 501 U.S. 312, 111 S. Ct. 2331, 115 L. Ed. 2d 288 (1991) .......... 15 24 Reno v. Flores, 25 507 U.S. 292, 113 S. Ct. 1439, 123 L. Ed. 2d 1 (1993) ............... 39 26 27 28 xi 9

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1 Reynolds v. United States, 98 U.S. 145, 25 L. Ed. 244 (1878) ............................................... 7 2 3 Rinaldi v. Yeager, 384 U.S. 305, 86 S. Ct. 1497, 16 L. Ed. 2d 577 (1966) ............... 28 4 5 Rodriquez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 109 S. Ct. 1917, 104 L. Ed. 2d 526 (1989) ........... 18 6 7 Romer v. Evans, 517 U.S. 620, 116 S. Ct. 1620, 134 L. Ed. 2d 855 (1996) ........... 18 8 Rostker v. Goldberg, 9 453 U.S. 57, 101 S. Ct. 2646, 69 L. Ed. 2d 478 (1981) .................. 16 10 Rutman Wine Co. v. E. & J. Gallo Winery, 11 829 F.2d 729 (9th Cir. 1987) ........................................................ 13 12 San Antonio Indep. Sch. Dist. v. Rodriguez, 13 411 U.S. 1, 93 S. Ct. 1278, 36 L. Ed. 2d 16 (1973) ..................... 20 14 Santosky v. Kramer, 15 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982) ............. 35 16 Schweiker v. Wilson, 450 U.S. 221, 101 S. Ct. 1074, 67 L. Ed. 2d 186 (1981) ............. 23 17 18 Shabani v. Classic Design Servs., Inc., 699 F. Supp. 2d 1138 (C.D. Cal. 2010) ....................................... 13 19 20 Smelt v. Cnty. of Orange, 374 F. Supp. 2d 861 (C.D. Cal. 2005) .......................................... 21 21 22 Smelt v. Cnty. of Orange, 447 F.3d 673 (9th Cir. 2006) ........................................................ 43 23 24 Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972) ............... 36 25 26 Tenet v. Doe, 544 U.S. 1, 109 S. Ct. 1917, 104 L. Ed. 2d 526 (2005) ............... 18 27 28 xii

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1 Thomasson v. Perry, 80 F.3d 915 (4th Cir. 1996) .......................................................... 20 2 3 Torres-Barragan v. Holder, No. 2:09-cv-08564 (C.D. Cal.) ..................................................... passim 4 5 Tuan Anh Nguyen v. INS, 533 U.S. 53, 121 S. Ct. 2053, 150 L. Ed. 2d 115 (2001) ............. 35, 37 6 7 U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528, 93 S. Ct. 2821, 37 L. Ed. 2d 782 (1973) ............... 23 8 U.S. R.R. Ret. Bd. v. Fritz, 9 449 U.S. 166, 101 S. Ct. 453, 66 L. Ed. 2d 368 (1980) ............... 42 10 United States v. Five Gambling Devices, 11 346 U.S. 441, 74 S. Ct. 190, 98 L. Ed. 179 (1953) ......................... 16 12 United States v. Virginia, 13 518 U.S. 515, 116 S. Ct. 2264, 135 L. Ed. 2d 735 (1996) .......... 37 14 Vance v. Bradley, 15 440 U.S. 93, 99 S. Ct. 939, 59 L. Ed. 2d 171 (1979) ................... 22, 37 16 Vill. of Belle Terre v. Boraas, 416 U.S. 1, 94 S. Ct. 1536, 39 L. Ed. 797 (1974) ........................ 24 17 18 Walters v. Nat’l Ass’n of Radiation Survivors, 473 U.S. 305, 105 S. Ct. 3180, 87 L. Ed. 2d 220 (1985)................ 16 19 20 Washington v. Glucksberg, 521 U.S. 702, 117 S. Ct. 2258, 138 L. Ed. 2d 772 (1997) ........... passim 21 22 Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005) ....................................... passim 23 24 Witt v. Dep’t of Air Force, 527 F.3d 806 (9th Cir. 2008) ........................................................ 5, 18, 20 25 26 Woodward v. United States, 871 F.2d 1068 (Fed. Cir. 1989) .................................................... 20 27 28 xiii

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1 Regulations 2 8 C.F.R. § 214.2 (1989) .......................................................................... 2 3 The Family and Medical Leave Act, 60 Fed. Reg. 2,180, 2,190-91 4 (1995) ............................................................................................... 6 5 6 7 Other Authorities 8 1 French National Assembly, No. 2832: Report Submitted on Behalf of the Mission of Inquiry on the Family and the Rights 9 of Children (Jan. 25, 2006) ........................................................... 33 10 1 William Blackstone, Commentaries on the Laws of England ............. 32 11 12 Adam P. Romero, et al., Census Snapshot (Dec. 2007) ......................... 33 13 Council on Families in America, Marriage in America: A Report to the Nation (1995) ......................................................................... 9 14 15 Daphne Lofquist, et al., Housholds and Families: 2010, Census Br. C2010BR-14, tbl. 3 (Apr. 2012) ................................................... 34 16 17 Eugene Gressman, et al., Supreme Court Practice 264 (9th ed. 2007) .. 18 Gary J. Gates, Family formation and raising children among same-sex couples, Family Focus on . . . LGBT Families, (Nat’l Council 19 on Fam. Rel.)Winter 2011 ............................................................ 34 20 Gunnar Andersson, et al., The Demographics of Same-Sex Marriages 21 in Norway and Sweden, 43 Demography 79 (2006) .................... 37 22 Institute for American Values, Marriage and the Law: A Statement 23 of Principles (2006) ...................................................................... 32 24 Joslin v. New Zealand, No. 902/1999 H.R. Comm. 2002, in 2 Report 25 of the Human Rights Comm., U.N. Doc. A/57/40 (2002) .......... 33 26 Letter from Andrew Fois, Ass’t Att’y Gen., to Hon. Charles T. 27 Canady (May 29, 1996) ................................................................ 11 28 xiv

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1 Letter from Andrew Fois, Ass’t Att’y Gen., to Hon. Henry J. Hyde (May 14, 1996) ............................................................................. 11 2 3 Letter from Andrew Fois, Ass’t Att’y Gen., to Hon. Orrin G. Hatch (July 9, 1996) ................................................................................ 11-12 4 5 Letter from G.A.O. to Senator Bill Frist 1 (Jan. 23, 2004), GAO-04-353R, Defense of Marriage Act .................................... 7 6 7 Living Arrangements of Children Under 18 Years Old: 1960 to Present, U.S. Census Bureau ........................................................ 33 8 N.M. Att’y Gen. Op. No. 11-01, 2011 WL 111243 (Jan. 4, 2011) ........ 26 9 10 Matthijs Kalmijn, et al., Income Dynamics in Couples and the Dissolution of Marriage and Cohabitation, 44 Demography 11 159 (2007) ..................................................................................... 37 12 Re: Recognition in New Jersey of Same-Sex Marriages, Civil Unions, 13 Domestic Partnerships and Other Government-Sanctioned, Same-Sex Relationships Established Pursuant to the Laws of 14 Other States and Foreign Nations, N.J. Att’y Gen. Op. 15 No. 3-2007, 2007 WL 749807 (Feb. 16, 2007) ........................... 26 16 Schalk & Kopf v. Austria, No. 30141/04 E.U. Ct. H. R. 2010 ............... 33 17 U.S. Dep’t of State, Visa Bulletin for Sept. 2012 ................................... 2 18 19 United Nations Convention on the Rights of the Child, art. 7, 28 I.L.M. 1456 (Nov. 20, 1989) ................................................... 35 20 21 William Meezan & Jonathan Rauch, Gay Marriage, Same-Sex Parenting,& America’s Children, 15 Future of Children 22 (Fall 2005) .................................................................................... 30, 36 23 24 25 26 27 28 xv

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1 2

INTRODUCTION This case concerns the constitutionality of Section 3 of the Defense of

3 Marriage Act (“DOMA”), Pub. L. No. 104-199, 110 Stat. 2419 (1996), 1 U.S.C. § 4 7, in the context of certain benefits provided under the Immigration and Nationality 5 Act (“INA”), 8 U.S.C. §§ 1101, et seq. See Compl. for Declaratory & Injunctive 6 Relief ¶¶ 3, 4 (July 12, 2012) (ECF No. 1) (“Compl.”). It is the third such case to 7 challenge DOMA Section 3 in the immigration context in this district in the past 8 two years. In both earlier cases, the district court dismissed the complaints on their 9 merits. See Order, Lui v. Holder, No. 2:11-cv-01267 (C.D. Cal. Sept. 28, 2011) 10 (ECF No. 38) (“Lui Order”) (dismissing both equal protection and substantive due 11 process claims); Order, Torres-Barragan v. Holder, No. 2:09-cv-08564 (C.D. Cal. 12 Apr. 30, 2010) (ECF No. 24) (“Torres-Barragan Order”) (same). 13 Intervenor-Defendant the Bipartisan Legal Advisory Group of the United 14 States House of Representatives (“House”) submits this memorandum in support 15 of its motion to dismiss Plaintiffs’ two Fifth Amendment claims. See Notice of 16 Mot. & Mot. of Proposed Intervenor-Def. [House] to Dismiss (Sept. 14, 2012). 17 BACKGROUND 18 I. 19 Factual Background, as Alleged. Plaintiff Jane DeLeon is a non-U.S. citizen and non-resident alien. Compl. ¶

20 19. She entered the U.S. in 1989 on a non-immigrant visitor’s visa. Id. ¶ 20. At 21 the time she entered, she represented to federal authorities that she was married to 22 Joseph Aranas, even though that was untrue. Id. ¶ 22; Decision, U.S. Citizenship 23 & Imm. Servs. at 3 (Sept. 1, 2011) (“First USCIS Dec.”) (Ex. 2 to Mot. for PI). 24 When Ms. DeLeon entered from the Philippines “on or about June 19, 25 1989,” she was “authorized to remain in the United States for a temporary period, 26 27 28 1

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1 not to exceed December 18, 1989.” First USCIS Dec. at 3.1 However, when 2 December 18, 1989, arrived, Ms. DeLeon did not depart. Instead, she remained 3 and “has resided here continuously since that time.” Compl. ¶ 20. In other words, 4 Ms. DeLeon illegally overstayed her visitor’s visa for the next nearly 23 years (and 5 counting). Based on the record before this Court, Ms. DeLeon has been an 6 unlawfully present, undocumented alien during that entire period of time. 7 Ms. DeLeon twice has attempted to obtain legal status. First, in March 8 2001, her U.S. citizen father filed – and USCIS approved – a family-based 9 immigrant petition on her behalf. First USCIS Dec. at 3.2 The father filed under 8 10 U.S.C. § 1153(a)(1) which allocates a certain number of visas each year for 11 unmarried sons and daughters of U.S. citizens. However, because the INA also 12 allocates the total number of family-based immigrant visas available each year, 8 13 U.S.C. § 1151(c), on a per country basis, id. § 1152(a)(2) – and because the 14 preference category under which Ms. DeLeon’s father’s petition was approved is 15 heavily oversubscribed for citizens of the Philippines – Ms. DeLeon is not yet 16 eligible to adjust her status to that of a permanent resident because her priority date 17 (March 19, 2001) has not yet become current.3 18 Second, in March 2006, Promax Systems filed an employment-based 19 immigrant visa petition on Ms. DeLeon’s behalf; that petition also was approved. 20 21
At the time, the maximum period of validity for a visitor’s visa was “not more than one 22 year.” 8 C.F.R. § 214.2(b)(1) (1989). 2 At the time, the responsibilities currently assigned to USCIS were carried out by the 23 Immigration and Naturalization Service (“INS”). The INS ceased to exist in 2003, as a result of 24 the enactment of the Homeland Sec. Act of 2002, Pub. L. No. 106-296, 116 Stat. 2135 (2002).
3 1

25 http://www.travel.state.gov/visa/bulletin/bulletin_5759.html (visas currently available for 26 citizens of the Philippines, who are unmarried sons and daughters of U.S. citizens, with priority
dates on or before November 8, 1994). In due course, Ms. DeLeon’s priority date will become 27 current and she will be eligible to apply to adjust her status to that of a permanent resident.

See U.S. Dep’t of State, Visa Bulletin for Sept. 2012, at 2, available at

28 2

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1 Compl. ¶ 26; First USCIS Dec. at 2. However, Ms. DeLeon was statutorily 2 ineligible to adjust her status to that of a lawful permanent resident because she 3 was not then “in a lawful nonimmigrant status,” 8 U.S.C. § 1255(c)(7), and 4 because she had misrepresented a material fact at the time of her initial entry in 5 1989, see id. § 1182(a)(6)(C)(i); Compl. ¶ 27; First USCIS Dec. at 3. 6 Ms. DeLeon nevertheless applied for adjustment of status in 2007. Compl. ¶ 7 26; First USCIS Dec. at 3. USCIS, predictably, advised her that she appeared to be 8 ineligible because she had misrepresented a material fact at the time of her initial 9 entry in 1989. Compl. ¶ 27; First USCIS Dec. at 3. However, USCIS also advised 10 Ms. DeLeon that she might be eligible for a waiver of such inadmissibility if she 11 could establish that denial of her application for adjustment of status would result 12 in extreme hardship to her U.S. citizen father. Compl. ¶ 28; First USCIS Dec. at 3; 13 see also 8 U.S.C. § 1182(i)(1) (providing Attorney General with discretion to 14 waive inadmissibility in certain cases if alien established that “refusal of admission 15 . . . would result in extreme hardship to . . . [a] parent” of the alien). 16 Ms. DeLeon applied for such a waiver in July 2011, see Compl. ¶ 29; First 17 USCIS Dec. at 3, and, in September 2011, USCIS denied that waiver application 18 on the ground that she failed to establish that denial of her application to adjust 19 would cause extreme hardship to her U.S. citizen father (who apparently resided a 20 significant portion of the time in the Philippines). Id.; Compl. ¶ 30; Decision, U.S. 21 Citizenship & Imm. Servs. at 1 (Nov. 9, 2011) (“Second USCIS Dec.”) (Ex. 1 to 22 Mot. for PI). At the same time, USCIS also denied Ms. DeLeon’s application for 23 adjustment of status. Id.; First USCIS Dec. at 3-4. 24 In the meantime, in August 2008, Ms. DeLeon and Plaintiff Irma Rodriguez 25 (a U.S. citizen) obtained a marriage certificate from the State of California. 26 Second USCIS Dec. at 3 (marriage date Aug. 28, 2008); Compl. ¶¶ 2, 8, 9, 25 27 (marriage date Aug. 22, 2008). As a result, Ms. DeLeon moved on September 27, 28 3

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1 2011, for reconsideration of the denial of her waiver application on the ground that 2 denial of her application to adjust would cause extreme hardship to Ms. Rodriguez. 3 Id. ¶ 32. USCIS denied that motion in November 2011 on the basis of DOMA 4 Section 3. Id. ¶ 37; Second USCIS Dec. at 2. USCIS did not reach the question of 5 whether Ms. DeLeon had established extreme hardship to Ms. Rodriguez, even 6 assuming Section 3 did not otherwise bar reconsideration. Id. 7 II. 8 Procedural Background. Eight months later, Ms. DeLeon, Ms. Rodriguez, and Ms. DeLeon’s

9 biological son filed this lawsuit. They allege – for themselves and purportedly on 10 behalf of a class consisting of “[a]ll members of lawful marriages whom the 11 Department of Homeland Security [DHS], pursuant to § 3 of [DOMA], refuses to 12 recognize as spouses for purposes of conferring lawful status and related benefits 13 under the [INA] . . . ,” Compl. ¶ 14 – that DOMA Section 3, as applied to them 14 (and others similarly situated), violates their Fifth Amendment “equal protection” 15 and “substantive due process” rights by “refusing to recognize their lawful 16 marriages for purposes of conferring family-based immigration waivers and 17 benefits.” Id. ¶¶ 3, 4, 69-70 (equal protection), 71-73 (substantive due process). 18 A. House’s Motion to Dismiss. 19 The House now has moved to dismiss Plaintiffs’ claims for lack of subject 20 matter jurisdiction and failure to state a claim. Plaintiffs lack standing to challenge 21 DOMA Section 3 because they have failed also to challenge a statutory provision 22 that independently bars them from obtaining the relief they seek. That provision is 23 8 U.S.C. § 1182(i)(1), under which Ms. DeLeon seeks a waiver of the denial of her 24 application to adjust. See supra pp. 3-4. Section 1182(i)(1) applies, however, only 25 to a “spouse,” and Adams v. Howerton, 673 F.2d 1036, 1039-41 (9th Cir. 1982), 26 concluded, as a matter of statutory construction, that the INA’s use of the term 27 28 4

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1 “spouse” is limited to an opposite sex spouse. Accordingly, Plaintiffs lack 2 standing to challenge DOMA Section 3. Infra pp. 14-15. 3 With respect to Plaintiffs’ equal protection claim, controlling Supreme Court 4 and Ninth Circuit authority foreclose that claim. See Baker v. Nelson, 409 U.S. 5 810, 93 S. Ct. 37, 34 L. Ed. 2d 65 (1972) (summarily rejecting argument that equal 6 protection requires extension of marriage rights to same-sex couples); Adams, 673 7 F.2d at 1039-41 (limiting immigration benefits to opposite-sex spouses does not 8 violate equal protection – even if state regards couple as married). Infra pp. 16-19. 9 Even if this Court could ignore Baker and Adams (which it may not), 10 Plaintiffs’ equal protection claim still would have to be dismissed because sexual 11 orientation classifications, like DOMA Section 3, are subject to rational basis 12 review, see, e.g., High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 13 563, 574 (9th Cir. 1990); Witt v. Dep’t of the Air Force, 527 F.3d 806, 821 (9th 14 Cir. 2008), and numerous rational bases support DOMA Section 3. Infra pp. 2115 37. Even the Justice Department (“DOJ”), which infamously has abandoned its 16 constitutional responsibility to defend Section 3, admits as much. Infra p.12 n.12. 17 Plaintiffs’ substantive due process claim – that DOMA Section 3 “burden[s] 18 the integrity of their lawful marriage and their most intimate family relationships,” 19 Compl. ¶ 72 – fares no better. First, Plaintiffs have described their asserted liberty 20 interest far too broadly. Under controlling case law, the courts must adopt a 21 narrow definition of the interest at stake, and Plaintiffs’ actual interest here – an 22 interest in obtaining the reopening of Ms. DeLeon’s waiver application – is not 23 even remotely a fundamental liberty interest protected by the substantive due 24 process component of the Fifth Amendment. Second, DOMA Section 3 does not 25 infringe “the integrity of their lawful marriage and their most intimate family 26 relationships.” Compl. ¶ 72. Section 3 neither bars anyone from any conduct nor 27 28 5

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1 bars anyone from forming any familial relationship, including marriage. Even 2 DOJ acknowledges as much. Infra pp. 12 n.12. 3 4 B. Plaintiffs’ Motion for Preliminary Injunction.

Plaintiffs, for their part, have moved for an order preliminarily enjoining the

5 Executive Branch defendants from, among other things, (i) removing or detaining 6 Ms. DeLeon and Mr. Aranas; (ii) denying them employment authorization; (iii) 7 deeming them inadmissible; and (iv) exercising their statutory responsibilities, in 8 these regards and others, against unnamed members of the plaintiff class. See 9 [Proposed] Prel. Inj. at 3-4 (Aug. 23, 2012) (ECF No. 12-1). Because the House 10 now has moved to dismiss, the Court need not reach Plaintiffs’ motion. If it does, 11 this Court should deny that motion for the reasons stated in the House’s Opposition 12 to Motion for Preliminary Injunction (Oct. 9, 2012). 13 III. 14 15 16 17 18 19 Legal Background. DOMA Section 3 provides that: In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.

20 Section 3 codifies and confirms what Congress always has meant in using the words 21 “marriage” and “spouse.” Even before DOMA, whenever Congress used terms
4 22 connoting a marital relationship, it meant a traditional male-female couple. Indeed,

23
See, e.g., Revenue Act of 1921, § 223(b)(2), 42 Stat. 227, 250 (permitting “a husband and wife living together” to file a joint tax return); see also The Family and Medical Leave Act, 60 Fed. 25 Reg. 2,180, 2,190-91 (1995) (final rule) (rejecting, as inconsistent with congressional intent, proposed definition of “spouse” that would include “same-sex relationships”); Adams v. Howerton, 26 486 F. Supp. 1119, 1123 (C.D. Cal. 1980) (“Congress, as a matter of federal law, did not intend that a person of one sex could be a ‘spouse’ to a person of the same sex for immigration law 27 purposes . . . .”), aff’d, 673 F.2d 1036 (9th Cir. 1982); Dean v. District of Columbia, 653 A.2d 307,

24

4

28 6

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1 Congress has a long history of defining marital terms for purposes of federal law5 2 and, at various times, has enacted comprehensive regulations of marriage.6 3 Congress designed DOMA to apply comprehensively to all manner of 4 federal programs that confer benefits, and impose burdens, on the basis of marital 5 status. According to the Government Accountability Office (“GAO”), as of 2004, 6 there were 1,138 provisions in the U.S. Code “in which marital status is a factor in 7 determining or receiving benefits, rights, and privileges.” Letter from GAO, to 8 Senator Bill Frist 1 (Jan. 23, 2004), GAO-04-353R, Defense of Marriage Act, 9 http://www.gao.gov/new.items/d04353r.pdf. DOMA reaffirms the definition of 10 marriage already reflected in prior statutes, namely, the traditional definition of 11 marriage as between one man and one woman. 12 13 A. DOMA’s Legislative Branch History.

The 104th Congress enacted DOMA in 1996 with overwhelming, bipartisan

14 support. DOMA passed by a vote of 342-67 in the House and 85-14 in the Senate. 15 142 Cong. Rec. 17093-94 (1996) (House vote); id. at 22467 (Senate vote). 16 President Clinton signed DOMA into law on September 21, 1996. 32 Weekly 17 Comp. Pres. Doc. 1891 (Sept. 30, 1996). 18
314, 63 USLW 307 (D.C. 1995) (Congress, in enacting D.C. marriage statute, intended “that
5

19 ‘marriage’ is limited to opposite-sex couples”).
See, e.g., 38 U.S.C. § 101(31) (for purposes of certain veterans’ benefits, “spouse” means “a person of the opposite sex who is a wife or husband”); 26 U.S.C. § 7703(b) (excluding 21 some couples “living apart” from marriage for tax purposes regardless of state-law status); 42 U.S.C. § 416 (detailed definitions of “spouse,” “wife,” “husband,” “widow,” “widower,” and 22 “divorce” for social-security purposes, inevitably varying from state definitions); 5 U.S.C. §§ 8101(6), (11), 8341(a)(1)(A), (a)(2)(A) (federal employee-benefits statutes); 8 U.S.C. § 23 1186a(b)(1) (anti-fraud criteria in immigration law).

20

24

For instance, Congress banned polygamy in U.S. territories. See Morrill Anti-Bigamy Act, ch. 126, § 1, 12 Stat. 501, 501 (1862) (codified as amended at U.S. Rev. Stat. § 5352) 25 (repealed prior to codification in U.S. Code); 150 Cong. Rec. 15318 (2004) (Sen. Inhofe) 26 (“Congress would not admit Utah into the Union unless it abolished polygamy and committed to the common national definition of marriage as one man and one woman.”); see also Reynolds v. 27 U.S., 98 U.S. 145, 165-67, 25 L. Ed. 244 (1878).

6

28 7

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1

DOMA was enacted in response to the Hawaii Supreme Court’s opinion in

2 Baehr v. Lewin, 852 P.2d 44, 74 Haw. 530 (Haw. 1993), which held that the denial 3 of a marriage license to a same-sex couple was subject to strict scrutiny under the 4 Hawaii Constitution. H.R. Rep. No. 104-664 at 4-5 (1996) (“House Rep.”). The 5 Hawaii courts “appear[ed] to be on the verge of requiring that State to issue 6 marriage licenses to same-sex couples.” Id. at 2. DOMA was enacted to preserve 7 the federal-law status quo in light of Baehr. Section 2 of DOMA addressed a 8 concern about the Hawaii decision being given preclusive effect in other states. 9 With Section 3, Congress ensured that, no matter what any state might do to 10 redefine marriage as a matter of state law, the definition for purposes of federal law 11 would remain, as it always has been, the union of one man and one woman. 12 The legislative history confirms that, even in statutes enacted before DOMA, 13 Congress never intended for the word “marriage” to include same-sex couples. See 14 id. at 10 (“[I]t can be stated with certainty that none of the federal statutes or 15 regulations that use the words ‘marriage’ or ‘spouse’ were thought by even a single 16 Member of Congress to refer to same-sex couples.”); id. at 29 (“Section 3 merely 17 restates the current understanding of what those terms mean for purposes of federal 18 law.”); 142 Cong. Rec. 16969 (1996) (Rep. Canady) (“Section 3 changes nothing; 19 it simply reaffirms existing law.”). In enacting DOMA, Congress was concerned 20 with more than semantics: It intended to ensure that the meaning of existing 21 federal statutes, and the legislative judgments of earlier Congresses, would be 22 respected. See Defense of Marriage Act: Hearing on H.R. 3396 Before the 23 Subcomm. on the Constitution of the H. Comm. on the Judiciary, 104th Cong. 32 24 (1996) (“House Hr’g”) (Rep. Sensenbrenner) (“When all of these benefits were 25 passed by Congress—and some of them decades ago—it was assumed that the 26 benefits would be to the survivors or to the spouses of traditional heterosexual 27 marriages . . . .”). It also intended to protect the ability of each sovereign to define 28 8

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1 terms such as “marriage” and “spouse” for purposes of its own law. To that end, 2 DOMA Section 2 provided that full faith and credit does not require states to 3 recognize foreign same-sex marriages even if Hawaii or some other state chose to 4 do so; and Section 3 reaffirmed the United States’ authority, as a separate 5 sovereign, to define marriage for purposes of federal law, regardless of how states 6 might choose to redefine it under their own laws. 7 During its deliberations on DOMA, Congress emphasized “[t]he enormous 8 importance of marriage for civilized society.” House Rep. at 13 (quoting Council 9 on Families in America, Marriage in America: A Report to the Nation 10 (1995)). 10 The House Report quoted approvingly from Murphy v. Ramsey, 114 U.S. 15, 45, 5 11 S. Ct. 747, 29 L. Ed. 47 (1885), in which the Supreme Court referred to “‘the idea 12 of the family, as consisting in and springing from the union for life of one man and 13 one woman in the holy estate of matrimony; the sure foundation of all that is stable 14 and noble in our civilization.’” Id. at 12.7 15 Congress also recognized that, historically in American law, marriage 16 consisted of the union of one man and one woman.8 This historical definition was 17 by no means a singling out of homosexual relationships. Rather, it identified one 18 type of relationship (traditional marriage) as especially important, and excluded 19 every other kind of relationship from the definition of “marriage.” Congress 20 21
See also 142 Cong. Rec. 16799 (1996) (Rep. Largent); id. at 16970 (Rep. Hutchinson) (marriage “has been the foundation of every human society”); id. at 22442 (Sen. Gramm) 22 (“There is no moment in recorded history when the traditional family was not recognized and sanctioned by a civilized society . . . .”); id. at 22454 (Sen. Burns) (“[M]arriage between one man 23 and one woman is still the single most important social institution.”).
7

24

See House Rep. at 3 (“[T]he uniform and unbroken rule has been that only opposite-sex couples can marry.”); House Hr’g at 1 (statement of Rep. Canady) (“Simply stated, in the history 25 of our country, marriage has never meant anything else.”); 142 Cong. Rec. 16796 (1996) (Rep. 26 McInnis) (“If we look at any definition, whether it is Black’s Law Dictionary, whether it is Webster’s Dictionary, a marriage is defined as [a] union between a man and a woman, and that 27 should be upheld . . . .”).

8

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1 concluded that such an important institution should not be radically redefined at 2 the federal level. Senator Dorgan expressed the views of many Members of 3 Congress when he stated: “For thousands of years, marriage has been an 4 institution that represents a union between a man and a woman, and I do not 5 support changing the definition of marriage or altering its meaning.” 142 Cong. 6 Rec. at 23186; see also id. at 22452 (Sen. Mikulski) (DOMA “is about reaffirming 7 the basic American tenet of marriage”). 8 Congress also expressed concern that expanding marital benefits to same-sex 9 couples would create fiscal uncertainty and strain in a manner not foreseen by the 10 Congresses that originally enacted benefits tied to marriage. See House Rep. at 18 11 (“legislative response” to same-sex marriage necessary to “preserve scarce 12 government resources”). It desired to avoid a “huge expansion” in marital benefits, 13 142 Cong. Rec. 17072 (1996) (Rep. Sensenbrenner), which “ha[d] not been planned 14 or budgeted for under current law,” id. at 22443 (1996) (Sen. Gramm). Congress 15 was concerned that state recognition of same-sex marriages would “create . . . a 16 whole group of new beneficiaries – no one knows what the number would be – . . . 17 who will be beneficiaries of newly created survivor benefits under Social Security, 18 Federal retirement plans, and military retirement plans,” id., and that these additional 19 costs had not even been calculated, let alone weighed, in the earlier legislative 20 debates that preceded the enactment of those programs, see id. at 22448 (Sen. Byrd) 21 (“[T]hink of the potential cost involved . . . .”). 22 In clarifying a single definition of marriage to govern all federal laws, 23 Congress decided that eligibility for federal benefits should not vary 24 geographically depending on how the several states might choose to define 25 marriage. As Senator Ashcroft stated, a federal definition “is very important, 26 because unless we have a Federal definition of what marriage is, a variety of States 27 around the country could define marriage differently . . . , people in different States 28 10

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1 would have different eligibility to receive Federal benefits, which would be 2 inappropriate.” Id. at 22459. 3 Congress also explained that marriage is afforded a special legal status 4 because only a man and a woman can beget a child together, and because historical 5 experience has shown that a family consisting of a married father and mother – 6 particularly the child’s own biological mother and father – is an effective social 7 structure for raising children. For example, the House Report states that the reason 8 “society recognizes the institution of marriage and grants married persons preferred 9 legal status” is that it “has a deep and abiding interest in encouraging responsible 10 procreation and child-rearing.” House Rep. at 12, 13.9 11 B. DOMA’s Executive Branch History. 12 When Congress considered DOMA, it received outside advice that DOMA 13 was constitutional, including thrice from DOJ. DOJ stated, for example, that it 14 “continues to believe that [DOMA] would be sustained as constitutional if 15 challenged in court, and that it does not raise any legal issues that necessitate 16 further comment by the Department. . . . [T]he Supreme Court’s ruling in Romer 17 v. Evans does not affect the Department’s analysis.” Letter from Andrew Fois, 18 Ass’t Att’y Gen., to Hon. Charles T. Canady (May 29, 1996), reprinted in House 19 Rep. at 34; see also Letters from Andrew Fois, Ass’t Att’y Gen., to Hon. Henry J. 20 Hyde (May 14, 1996), reprinted in House Rep. at 33, and to Hon. Orrin G. Hatch 21 22 23 24 25 26 27 28 11
See also 142 Cong. Rec. 22446 (1996) (Sen. Byrd) (“The purpose of this kind of union between human beings of opposite gender is primarily for the establishment of a home atmosphere in which a man and a woman pledge themselves exclusively to one another and who bring into being children for the fulfillment of their love for one another and for the greater good of the human community at large.”); House Hr’g at 1 (Rep. Canady) (“[Marriage] is inherently and necessarily reserved for unions between one man and one woman. This is because our society recognizes that heterosexual marriage provides the ideal structure within which to beget and raise children.”); 142 Cong. Rec. 17081 (1996) (Rep. Weldon) (“[M]arriage of a man and woman is the foundation of the family. The marriage relationship provides children with the best environment in which to grow and learn.”).
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1 (July 9, 1996), reprinted in Defense of Marriage Act: Hearing on S. 1740 Before 2 the S. Comm. on the Judiciary, 104th Cong. 2 (1996) (“Senate Hr’g”).10 3 During the Bush administration, DOJ successfully defended DOMA against 4 several constitutional challenges, prevailing in every case that reached final 5 judgment. See Mem. . . . in Supp. of Mot. of [House] for Leave to Intervene at 3 6 n.1 (Aug. 23, 2012) (ECF No. 19) (identifying cases). And, during the first two 7 years of the Obama administration, DOJ continued to defend DOMA (albeit 8 without defending all of Congress’s stated justifications for the law). Id. at 3 n.2. 9 In February 2011, however, DOJ abruptly reversed course and abandoned 10 the defense of DOMA Section 3, effectively conceding in the process that decision 11 to do so was a sharp departure from past precedent and not predicated primarily on 12 constitutional or other legal considerations. See id. at 3-4. Notwithstanding its 13 abandonment of its constitutional duties, DOJ nonetheless repeatedly has affirmed 14 that there is a rational basis for Section 3,11 and that the statue does not violate the 15 substantive due process component of the Fifth Amendment.12 16
10

See also House Hr’g at 87-117 (testimony of Professor Hadley Arkes); Senate Hr’g at

17 56-59 (letter from Professor Michael W. McConnell) (advising that DOMA is constitutional). 18 19 20 21 22 23 24 25 26 27 28 12
See, e.g., Superseding Br. for the U.S. Dep’t of Health & Human Servs. at 46 n.20, Massachusetts v. U.S. Dep’t of HHS, Nos. 10-2204, 10-2207, & 10-2214 (1st Cir. Sept. 22, 2011) (ECF No. 5582082) (“[I]f this Court holds that rational basis is the appropriate standard, as the government has previously stated, a reasonable argument for the constitutionality of DOMA Section 3 can be made under that permissive standard.”); Fed. Defs.’ Br. In Partial Supp. of Pls.’ Mot. for Summ. J. at 19 n.14, Dragovich v. U.S. Dep’t of the Treasury, No. 4:10-cv01564 (N.D. Cal. Jan. 1, 2012) (ECF No. 108) (same); Defs.’ Br. in Opp’n to Mots. to Dismiss at 18 n.14, Golinski v. U.S. Office of Pers. Mgmt., No. 3:10-cv-00257 (N.D. Cal. July 1, 2011) (ECF No. 145) (same). See Defs.’ Mem. . . . in Supp. of Partial Mot. to Dismiss at 8-9 (Sept. 28, 2012) (ECF No. 46-1) (“DOJ’s Mot.”); see also, e.g., Reply Br. for the Office of Pers. Mgmt. at 17-21, Golinski v. U.S. Office of Pers. Mgmt., Nos. 12-15388 & 12-15409 (9th Cir. July 31, 2012) (ECF No. 149); Fed. Defs.’ Reply in Supp. of Their Cross-Mot. for Summ. J. at 9-11, Dragovich v. U.S. Dep’t of the Treasury, No. 4:10-cv-01564 (N.D. Cal. Apr. 12, 2012) (ECF No. 121); Fed. Defs.’ Opp’n to Pls.’ Mot. for Summ. J. . . . at 9-14, Dragovich (N.D. Cal. Feb. 21, 2012) (ECF No. 114); Br. of the United States Regarding the Constitutionality of Section 3 of DOMA at 5 n.3, Cozen O’Connor v. Tobits, No. 2:11-cv-00045 (E.D. Pa. Dec. 30, 2011) (ECF No. 97);
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1 2 I. 3

STANDARD OF REVIEW Rule 12(b)(1): Subject Matter Jurisdiction. “Standing is an essential element of federal-court subject matter

4 jurisdiction.” Orient v. Linus Pauling Inst. of Sci. & Med., 936 F. Supp. 704, 706 5 (D. Ariz. 1996); see also, e.g., City of S. Lake Tahoe v. Cal. Tahoe Reg’l Planning 6 Agency, 625 F.2d 231, 233 (9th Cir. 1980). A plaintiff lacks standing where her 7 alleged injury could not be redressed by the relief that she seeks. See, e.g. Lujan v. 8 Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130, 119 L. Ed. 2d 351 9 (1992) (“[T]he irreducible constitutional minimum of standing contains three 10 elements. First, the plaintiff must have suffered an injury in fact . . . . Second, 11 there must be a causal connection between the injury and the conduct complained 12 of . . . . Third, it must be likely, as opposed to merely speculative, that the injury 13 will be redressed by a favorable decision. The party invoking federal jurisdiction 14 bears the burden of establishing these elements.” (quotation marks omitted)). 15 II. Rule 12(b)(6): Failure to State a Claim. 16 A 12(b)(6) motion “tests the legal sufficiency of the complaint.” Hamilton 17 v. City of San Bernardino, 107 F. Supp. 2d 1239, 1241 (C.D. Cal. 2000) (citing 18 Rutman Wine Co. v. E. & J. Gallo Winery, 829 F.2d 729, 738 (9th Cir. 1987)). 19 “Claims should be dismissed . . . when there is either a ‘lack of a cognizable legal 20 theory or the absence of sufficient facts alleged under a cognizable legal theory.’” 21 Shabani v. Classic Design Servs., Inc., 699 F. Supp. 2d 1138, 1141 (C.D. Cal. 22 2010) (quoting Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 23 1988)). Thus, the Court properly may grant a Rule 12(b)(6) motion if it is clear 24 from the face of the complaint, judicially-noticed documents, and cognizable non25 adjudicative facts that the plaintiff cannot prevail as a matter of law. 26
Resp. of Defs. United States . . . to [House’s] Cross-Mot. for Summ. J. at 3-4 n.4, Bishop v. 27 Holder, No. 4:04-cv-00848 (N.D. Okla. Nov. 18, 2011) (ECF No. 225).

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1

While “[t]he court must accept all factual allegations pleaded in the

2 complaint as true, . . . [i]t need not . . . accept as true unreasonable inferences or 3 conclusory legal allegations cast in the form of factual allegations.” Izenberg v. 4 ETS Servs., LLC, 589 F. Supp. 2d 1193, 1198 (C.D. Cal. 2008) (citing Bell Atl. 5 Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007); Cahill 6 v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996); Mier v. Owens, 57 7 F.3d 747, 750 (9th Cir. 1995)). 8 9 I. 10 ARGUMENT Plaintiffs Lack Standing to Challenge DOMA Section 3. Plaintiffs lack standing to challenge DOMA Section 3 because Ms. DeLeon

11 is not a “spouse” within the meaning of the statute under which she seeks a waiver 12 of the denial of her application to adjust her status, see supra pp. 3-4, namely: 13 Section 212(i)(1) of the INA, 8 U.S.C. § 1182(i)(1). 14 In Adams, 673 F.2d at 1039-41, the Ninth Circuit considered the meaning of 15 the same term – “spouse” – from the same statute – the INA. The Adams Court 16 considered that term in the context of the INA’s definition of “immediate 17 relatives,” INA § 201(b), 8 U.S.C. § 1151(b), which definition identifies a 18 “spouse” as such an “immediate relative[].” The Adams Court considered the INA 19 as a whole and its legislative history, concluding that “spouse” refers only to 20 opposite-sex spouses. See 673 F.2d at 1039-40 (“It is clear to us that Congress did 21 not intend the mere validity of a marriage under state law to be controlling.”). 22 For the same reasons that INA Section 201(b), 8 U.S.C. § 1151(b), did not 23 refer to same-sex spouses in using the term “spouse,” INA Section 212(i)(1), 8 24 U.S.C. § 1182(i)(1), does not do so. See, e.g., Adams, 673 F.2d at 1040 (“As our 25 duty is to ascertain and apply the intent of Congress, we strive to interpret language 26 in one section of a statute consistently with the language of other sections and with 27 the purposes of the entire statute considered as a whole.”). As noted supra pp. 628 14

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1 11, Congress always has used the term “spouse” to refer only to traditional, 2 opposite-sex spouses, and certainly that was the case at the enactment of INA 3 Section 212(i)(1), 8 U.S.C. § 1182(i)(1) in 1961. 4 Because INA Section 212(i)(1), 8 U.S.C. § 1182(i)(1) – which Plaintiffs 5 have not challenged – independently forecloses their claims for relief, Plaintiffs’ 6 alleged injuries would not be redressed even if they prevailed on their DOMA 7 Section 3 arguments. Accordingly, they lack standing to challenge Section 3.13 8 II. DOMA Section 3 Must Be Presumed to Be Constitutional. 9 Duly enacted federal laws are entitled to a strong presumption of 10 constitutionality. “[J]udging the constitutionality of an Act of Congress is the 11 gravest and most delicate duty that th[e] Court[s] [are] called on to perform.” Nw. 12 Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 204, 129 S. Ct. 2504, 174 13 L. Ed. 2d 140 (2009) (quotation marks omitted). “The Congress is a coequal branch 14 of government whose Members take the same oath we do to uphold the Constitution 15 of the United States.” Id. at 205 (quotation marks omitted). Because “[a] ruling of 16 unconstitutionality frustrates the intent of the elected representatives of the people,” 17 Regan v. Time, Inc., 468 U.S. 641, 652, 104 S. Ct. 3262, 82 L. Ed. 2d 487 (1984), 18 the “Court[s] do[] and should accord a strong presumption of constitutionality to 19 Acts of Congress. This is not a mere polite gesture. It is a deference due to 20 deliberate judgment by constitutional majorities of the two Houses of Congress that 21 22 23 24 25 26 27 28 15
See, e.g., McConnell v. FEC, 540 U.S. 93, 229, 124 S. Ct. 619, 157 L. Ed. 2d 491 (2003) (challenge to constitutionality of particular statutory provision fails where other, unchallenged statutory provisions independently bar plaintiffs from requested relief); Renne v. Geary, 501 U.S. 312, 319, 111 S. Ct. 2331, 115 L. Ed. 2d 288 (1991) (noting, in First Amendment challenge to local government’s removal of party endorsements from materials submitted by political candidates for distribution by county, that there was “reason to doubt . . . that the injury alleged by these voters can be redressed by a declaration of [the ordinance]’s invalidity or an injunction against its enforcement” because a separate and unchallenged state statute likely also required the redaction); Nuclear Info. & Res. Serv. v. Nuclear Reg. Comm’n, 457 F.3d 941, 955 (9th Cir. 2006). See generally Lujan, 504 U.S. at 560-61.
13

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1 an Act is [constitutional].” U.S. v. Five Gambling Devices, 346 U.S. 441, 449, 74 S. 2 Ct. 190, 98 L. Ed. 179 (1953) (plurality). This deference “is certainly appropriate 3 when, as here, Congress specifically considered the question of the Act’s 4 constitutionality,” Rostker v. Goldberg, 453 U.S. 57, 64, 101 S. Ct. 2646, 69 L. Ed. 5 2d 478 (1981); see supra pp. 11-12, and “must be afforded even though the claim is 6 that a statute” violates the Fifth Amendment, Walters v. Nat’l Ass’n of Radiation 7 Survivors, 473 U.S. 305, 319-20, 105 S. Ct. 3180, 87 L. Ed. 2d 220 (1985). 8 III. DOMA Section 3 Satisfies Equal Protection Principles. 9 10 A. Binding Precedent Foreclose Plaintiffs’ Equal Protection Claim.

This Court has no occasion to undertake the “grave and delicate” task of

11 considering the constitutionality of an Act of Congress because binding Supreme 12 Court and Ninth Circuit precedent forecloses an equal protection challenge to 13 DOMA Section 3. No matter how a court might view those provisions as a matter 14 of first impression, the Supreme Court and Ninth Circuit already squarely have 15 held that defining marriage as between one man and one woman comports with 16 equal protection. Only those Courts can reconsider those determinations. 17 18 1. Binding Supreme Court Authority: Baker v. Nelson.

In Baker, two men challenged a state law defining marriage as a “union

19 between persons of the opposite sex,” and the denial of a marriage license “on the 20 sole ground that [they] were of the same sex.” Baker v. Nelson, 191 N.W.2d 185, 21 185-86, 291 Minn. 310 (Minn. 1971). The state Supreme Court rejected their 22 constitutional claims “that the right to marry without regard to the sex of the 23 parties is a fundamental right . . . and that restricting marriage to only couples of 24 the opposite sex is irrational and invidiously discriminatory.” Id. at 186. 25 The two men appealed to the Supreme Court under former 28 U.S.C. § 26 1257(2) (repealed in 1988), the question of “[w]hether appellee’s refusal, pursuant 27 to Minnesota marriage statutes, to sanctify appellants’ marriage because both are 28 16

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1 of the male sex violates their rights under the equal protection clause of the 2 Fourteenth Amendment.” Jurisdictional Statement at 3, Baker v. Nelson, No. 713 1027 (1972) (attached as Ex. A). In addition to arguing that Minnesota had 4 engaged in unconstitutional sex discrimination, id. at 16-17, the men argued that 5 “there is no justification in law for the discrimination against homosexuals,” and 6 that they were “similarly situated” to “childless heterosexual couples” and 7 therefore entitled to the same “benefits awarded by law,” id. at 10. The Court 8 rejected both arguments, and summarily and unanimously dismissed the appeal for 9 want of a substantial federal question. Baker, 409 U.S. at 810. 10 Such a disposition is a decision on the merits. Mandel v. Bradley, 432 U.S. 11 173, 176, 97 S. Ct. 2238, 53 L. Ed. 2d 199 (1977) (“[L]ower courts are bound by 12 summary actions on the merits by this Court.”); Hicks v. Miranda, 422 U.S. 332, 13 344-45, 95 S. Ct. 2281, 45 L. Ed. 2d 223 (1975). While the Court’s certiorari 14 jurisdiction is discretionary, its appellate jurisdiction under § 1257(2) was 15 mandatory. Thus “the Supreme Court had no discretion to refuse to adjudicate 16 [Baker] on its merits,” Wilson v. Ake, 354 F. Supp. 2d 1298, 1304 (M.D. Fla. 17 2005), and its “dismissal[] for want of a substantial federal question without doubt 18 reject[ed] the specific challenges presented in the statement of jurisdiction,” 19 Mandel, 432 U.S. at 176 – i.e., the contention that prohibiting same-sex marriages 20 violates equal protection. 21 Because Baker holds that a state may define marriage as the union of one 22 man and one woman without violating the Fourteenth Amendment’s equal 23 protection clause, and because “[the Supreme] Court’s approach to Fifth 24 Amendment Equal Protection claims has always been precisely the same as to 25 equal protection claims under the Fourteenth Amendment,” Adarand Constructors, 26 Inc. v. Peña, 515 U.S. 200, 217, 115 S. Ct. 2097, 132 L. Ed. 2d 158 (1995) 27 (quotation marks omitted), it necessarily follows that DOMA Section 3 does not 28 17

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1 violate the equal protection component of the Fifth Amendment by defining 2 marriage in the manner that Baker found constitutional.14 3 “[L]ower courts are bound by summary decisions by [the Supreme] Court 4 until such time as the [Supreme] Court informs them they are not,” Hicks, 422 U.S. 5 at 344-45 (quotation marks and parentheses omitted),15 and “[t]he Supreme Court 6 has not explicitly or implicitly overturned its [Baker] holding,” Wilson, 354 F. 7 Supp. 2d at 1305. Accordingly, this Court is obligated to follow Baker and dismiss 8 Plaintiffs’ equal protection challenge to DOMA Section 3.16 9 10 11 12 13 14 15 16 17 18 19 20
See also McConnell v. Nooner, 547 F.2d 54, 56 (8th Cir. 1976) (Baker requires holding of no constitutional violation where federal government denied marital benefits to samesex couple that obtained marriage license; “Supreme Court’s dismissal of the [Baker] appeal for want of a substantial federal question constitutes an adjudication of the merits which is binding on the lower federal courts.”); Adams, 673 F.2d at 1039 n.2 (acknowledging Baker and binding nature of summary dismissal); Wilson, 354 F. Supp. 2d at 1305 (Baker “binding precedent” with “dispositive effect” requiring dismissal of equal protection challenge to DOMA); Adams, 486 F. Supp. at 1124 (Baker requires holding of no equal protection violation where federal government denied benefits to same-sex couple that obtained marriage license); Andersen v. King Cnty., 138 P.3d 963, 999 & n.19, 158 Wash. 2d 1 (Wash. 2006) (Baker binding in challenge to traditional marriage provision); Morrison v. Sadler, 821 N.E.2d 15, 19-20 (Ind. Ct. App. 2005) (same); In re Cooper, 592 N.Y.S.2d 797, 800, 187 A.D.2d 128 (N.Y. App. Div. 1993) (same). Cf. Perry v. Brown, 671 F.3d 1052, 1082. n.14 (9th Cir. 2012) (distinguishing Baker from situation in which “the people of a state . . . by plebiscite strip a group of a right or benefit . . . that they had previously enjoyed on terms of equality with all others in the state.”); id. at 1076, 1082, 1087, 1090, 1096 (limiting Perry to its unique circumstances). The federal government, of course, never has recognized same-sex marriages and, instead, has acted to preserve the status quo.
15 14

See also Tenet v. Doe, 544 U.S. 1, 109 S. Ct. 1917, 104 L. Ed. 2d 526 (2005) (Supreme Court precedent binds lower courts until Court overrules own decision); Rodriquez de 21 Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484, 109 S. Ct. 1917, 104 L. Ed. 2d 526 22 (1989).
16

23 Baker, or whether later cases suggest a different trend in the Court’s jurisprudence – rather they 24 are whether Baker is on point, which it is, and whether it has been overturned by the Court,

The relevant questions are not whether a majority of current Justices would agree with

which it has not. Moreover, neither Romer v. Evans, 517 U.S. 620, 116 S. Ct. 1620, 134 L. Ed. 25 2d 855 (1996), nor Lawrence v. Texas, 539 U.S. 558, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003), has undermined Baker. In Lawrence – decided after Romer – the Supreme Court expressly 26 declined to reach the question “whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” 539 U.S. at 578; see also Witt, 527 F.3d at 27 821 (Lawrence “declined to address equal protection”). Indeed, Justice O’Connor stated that

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1 2

2.

Binding Ninth Circuit Authority: Adams v. Howerton.

Adams held that the word “spouse” in INA Section 201(b), 8 U.S.C. §

3 1151(b), meant a person of the opposite sex, and that the INA’s restriction of that 4 term to opposite-sex spouses does not violate equal protection. 673 F.2d at 1040. 5 “Congress’s decision to confer spouse status under section 201(b) only upon the 6 parties to heterosexual marriages has a rational basis and therefore comports with 7 the due process clause and its equal protection requirements.” Id. at 1042.17 8 DOMA Section 3 is constitutional under Adams because it uses the same 9 definition of spouse and marriage upheld by the Ninth Circuit in that case. Given 10 the squarely controlling nature of Adams – already acknowledged by two courts in 11 this district, see Lui Order at 3-4 & n.5; Torres-Barragan Order at 2 – Plaintiffs’ 12 failure to address Adams – save in a single footnote, see Mot. for PI at 16 n.17, is 13 telling. Plaintiffs’ suggestion that this Court wish away controlling precedent is, at 14 best, an invitation to error. 15 16 B. Rational Basis Review Applies to DOMA Section 3.

Even if Section 3’s constitutionality under equal protection principles was an

17 open question (which it is not), the statute would pass constitutional muster 18 because rational basis review applies and, as explained below, is easily satisfied. 19 The recognized suspect classes are “race, alienage, [and] national origin.” 20 City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 440, 105 S. Ct. 3249, 21 87 L. Ed. 2d 313 (1985). Classifications based on sex or illegitimacy are quasi22 suspect. Id. at 440-41. The Supreme Court has rejected many other proposed 23 suspect and quasi-suspect classes, such as (i) mental retardation, id. at 442-47; 24
statutes “preserving the traditional institution of marriage” remain valid. Lawrence, 539 U.S. at 25 585 (O’Connor, J., concurring). It could not be clearer that Lawrence left Baker unimpaired. Adams is not limited by Perry which, by its own terms dealt only with withdrawals of previously-offered marriage rights. See supra p. 18 n.14. That is not what the statute in Adams did, and it certainly is not what DOMA Section 3 does here. 27

26

17

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1 (ii) age, Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 96 S. Ct. 2562, 49 L. Ed. 2d 2 520 (1976); and (iii) poverty, San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 3 1, 93 S. Ct. 1278, 36 L. Ed. 2d 16 (1973). 4 The Supreme Court has not expanded the list since 1973, see Frontiero v. 5 Richardson, 411 U.S. 677, 93 S. Ct. 1764, 36 L. Ed. 2d 583 (1973) (sex), and, 6 since then, no federal court has added to the list of suspect or quasi-suspect classes 7 without being reversed by a higher court. And “the Supreme Court has never ruled 8 that sexual orientation is a suspect classification for equal protection purposes.” 9 Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 866 (8th Cir. 2006). On the 10 contrary, the Court applied rational basis review to a sexual orientation 11 classification in Romer, 517 U.S. 620. Eleven federal circuits, including the Ninth, 12 have held that homosexuals are not a suspect class.18 13 For this reason, the class of same-sex married couples affected by a 14 governmental definition of marriage as between a man and a woman does not 15 comprise a suspect or quasi-suspect class, as four federal courts already have held. 16
18

17 Lawrence); High Tech Gays, 895 F.2d at 574 (“[H]omosexuals do not constitute a suspect or 18 quasi-suspect class . . . .”); Perry, 671 F.3d at 1082, 1086-90 (applying rational basis review);
see also Massachusetts v. U.S. Dep’t of HHS, 682 F.3d 1, 9 (1st Cir. 2012) (declining to treat

See Witt, 527 F.3d at 821 (reaffirming applicability of rational basis review post-

19 homosexuals as suspect or quasi-suspect class), cert. pets. pending, Nos. 12-13, 12-15, & 12-97; 20 61-62 (1st Cir. 2008), cert. denied sub nom. Pietrangelo v. Gates, 129 S. Ct. 2763, 174 L. Ed. 2d 21 Equal Prot., 455 F.3d at 866 (8th Cir.); Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004); 22 Lofton v. Sec’y of Dep’t of Children & Fam. Servs., 358 F.3d 804, 818 & n.16 (11th Cir. 2004), 23 24 25 26 27 28 20
284 (2009); Price-Cornelison v. Brooks, 524 F.3d 1103, 1113 (10th Cir. 2008); Citizens for Davis v. Prison Health Servs., 679 F.3d 433, 438 (6th Cir. 2012); Cook v. Gates, 528 F.3d 42,

cert. denied, 543 U.S. 1081, 125 S. Ct. 869, 160 L. Ed. 2d 825 (2005); Thomasson v. Perry, 80 F.3d 915, 927-28 (4th Cir. 1996); Ben-Shalom v. Marsh, 881 F.2d 454, 464 (7th Cir. 1989); Woodward v. U.S., 871 F.2d 1068, 1076 (Fed. Cir. 1989); Padula v. Webster, 822 F.2d 97, 10304 (D.C. Cir. 1987); Nat’l Gay Task Force v. Bd. of Educ’n of Okla. City, 729 F.2d 1270, 1273 (10th Cir. 1984), aff’d by an equally divided ct., 470 U.S. 903, 105 S. Ct. 1858, 84 L. Ed. 2d 776 (1985) (per curiam). The only circuit courts that have not specifically addressed this question are the Second and Third, although the Second Circuit applied rational basis review to a sexual orientation classification where the plaintiff did not seek application of heightened scrutiny. See Able v. U.S., 155 F.3d 628, 632 (2d Cir. 1998).

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1 See Citizens for Equal Prot., 455 F.3d at 866-67; Wilson, 354 F. Supp. 2d at 13072 08; Smelt v. Cnty. of Orange, 374 F. Supp. 2d 861, 874-75 (C.D. Cal. 2005); In re 3 Kandu, 315 B.R. 123, 144 (Bankr. W.D. Wash. 2004).19 This unanimous view of 4 the courts of appeals is a thoroughly sound one. Whether or not sexual orientation 5 classifications might someday be recognized as quasi-suspect, they are not today, 6 and cannot be in this Court unless and until the en banc Ninth Circuit or the 7 Supreme Court chooses to revisit the issue.20 Indeed, even DOJ acknowledges that 8 Ninth Circuit precedent requires application of rational basis scrutiny. See, e.g., 9 [DOJ]’s Br. in Partial Supp. of Pls.’ Mot. for Summ. J. at 2, Dragovich v. U.S 10 Dep’t of the Treasury, No. 4:10-cv-01564 (N.D. Cal. Jan. 19, 2012) (ECF No. 108) 11 (High Tech Gays is “binding authority”). 12 1. DOMA Section 3 Does Not Classify on the Basis of Gender. 13 Plaintiffs suggest, in passing, that DOMA Section 3 also discriminates on 14 the basis of gender. Compl. ¶ 54, 70; Mot. for PI at 4, 17. In fact, however, it does 15 not. Each gender – male and female – is treated the same under Section 3. No 16 Article III court has held otherwise, and this Court has squarely rejected the 17 argument. See Lui Order at 3 (“Plaintiffs have failed to assert any facts to suggest 18
19

19 Mgmt., 824 F. Supp. 2d 968 (N.D. Cal. 2012) (although holding that DOMA Section 3 violates 20 equal protection principles based on application of heightened scrutiny, reaching that result only
by setting aside Baker and purporting to overrule Adams), appeals pending, Nos. 12-15388, 12596938; cf. Pedersen v. Office of Personnel Mgmt., No. 3:10-cv-01750, -- F. Supp. 2d. --, 2012

Only one Article III court has held to the contrary: See Golinski v. U.S. Office of Pers.

21 15409 (9th Cir.), pet. for cert. before j. pending, No. 12-16 (S. Ct. July 3, 2012), 2012 WL 22 WL 3113883, at *35 (D. Conn. July 31, 2012) (concluding, in dicta, that heightened scrutiny
would apply), appeals pending, Nos. 12-3273, 12-3872 (2d Cir.), pets. for cert. before j. pending,

23 No. 12-231 (S. Ct. Aug. 22, 2012), 2012 WL 3613467, No. 12-302 (S. Ct. Sept. 11, 2012), 2012 24 WL 3991479.
20

25 because, they say, the law may change. See, e.g., Mot. for PI at 18 n.20 (“Though Judge 26 Canby’s view has yet to attain the status of binding precedent in the Ninth Circuit, . . . it soon
will.”). If ever there was a recipe for fomenting disrespect for the rule of law and those who 27 interpret it, Plaintiffs have provided it.

Plaintiffs argue that this Court should ignore High Tech Gays, as reaffirmed by Witt,

28 21

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1 the Defendants discriminated against them on the basis of their sex, as opposed to 2 their sexual orientation.”); Torres-Barragan Order at 3 (“Defendants denied the I3 130 Petition not for Plaintiffs’ sex, but because of their sexual orientation.”).21 4 Even DOJ agrees. See DOJ Mot. at 10 n.8. 5 6 C. DOMA Section 3 Satisfies Rational Basis Review.

Rational basis review “is the most relaxed and tolerant form of judicial

7 scrutiny under the Equal Protection Clause.” City of Dallas v. Stanglin, 490 U.S. 19, 8 26, 109 S. Ct. 1591, 104 L. Ed. 2d 18 (1989). Under such review, a statute receives 9 “a strong presumption of validity” and must be upheld “if there is any reasonably 10 conceivable state of facts that could provide a rational basis for the classification.” 11 FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313-14, 113 S. Ct. 2096, 124 L. Ed. 12 2d 211 (1993). “[T]hose challenging the legislative judgment must convince the 13 court that the legislative facts on which the classification is apparently based could 14 not reasonably be conceived to be true by the governmental decision maker.” 15 Vance v. Bradley, 440 U.S. 93, 111, 99 S. Ct. 939, 59 L. Ed. 2d 171(1979). The 16 government “has no obligation to produce evidence to sustain the rationality of a 17 statutory classification,” and “courts are compelled under rational-basis review to 18 accept a legislature’s generalizations even when there is an imperfect fit between 19 means and ends.” Heller v. Doe, 509 U.S. 312, 320, 321, 113 S. Ct. 2637, 125 L. 20 Ed. 2d 257 (1993). “[A] legislative choice is not subject to courtroom fact-finding 21 and may be based on rational speculation unsupported by evidence or empirical 22 23 24 25 26 27 28 22
See also Jackson v. Abercrombie, No. 1:11-cv-00734, -- F. Supp. 2d --, 2012 WL 3255201, at *27 (D. Haw. Aug. 8, 2012) (“opposite-sex definition of marriage does not constitute gender discrimination”), appeal docketed, No. 12-16998 (9th Cir. Sept. 10, 2012); In re Kandu, 315 B.R. at 143 (same); In re Marriage Cases, 183 P.3d 384, 401, 76 Cal. Rptr. 3d 683 (Cal. 2008) (“[W]e do not agree with the claim . . . that the applicable statutes properly should be viewed as an instance of discrimination on the basis of the suspect characteristic of sex or gender.”); Conaway v. Deane, 932 A.2d 571, 598, 401 Md. 219 (Md. 2007) (state “marriage statute does not discriminate on the basis of sex”); Andersen, 138 P.3d at 969 (same).
21

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1 data.” Beach Commc’ns, 508 U.S. at 315. Indeed, “it is entirely irrelevant for 2 constitutional purposes whether the conceived reason for the challenged distinction 3 actually motivated the legislature.” Id. “[T]he burden is on the one attacking the 4 legislative arrangement to negative every conceivable basis which might support it, 5 whether or not that basis has a foundation in the record.” Heller, 509 U.S. at 3206 21 (quotation marks, brackets, and citations omitted) (emphasis added). 7 Furthermore, courts may not “substitute [their] personal notions of good public 8 policy for those of Congress.” Schweiker v. Wilson, 450 U.S. 221, 234, 101 S. Ct. 9 1074, 67 L. Ed. 2d 186 (1981). 10 So strong is this presumption of validity that only once (to our knowledge) 11 has the Supreme Court struck down a federal statute an equal protection grounds. 12 See U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528, 93 S. Ct. 2821, 37 L. Ed. 2d 782 13 (1973).22 That striking fact is a direct product of the deferential nature of rational 14 basis review which makes it extraordinarily difficult for a federal court to conclude 15 that a law passed by Congress, and signed by the President, is wholly irrational. 16 This deferential standard is at its zenith when it comes to statutory 17 definitions and other line-drawing exercises (like DOMA Section 3). The Supreme 18 Court has recognized a broad category of matters in which “Congress had to draw 19 the line somewhere,” Beach Commc’ns, 508 U.S. at 316, and which “inevitably 20 require[] that some persons who have an almost equally strong claim to favored 21 treatment be placed on different sides of the line.” Mathews v. Diaz, 426 U.S. 67, 22 83, 96 S. Ct. 1883, 48 L. Ed. 2d 478 (1976); see Schweiker, 450 U.S. at 238 23
22

24 (finding unconstitutional under any standard a classification based on illegitimacy, which the 25 readily distinguishable. The classification there could not further the interests identified by the 26 government because the vast majority of individuals who it excluded could easily rearrange their
affairs to become eligible, while the neediest people would not be able to do so. See Moreno, 27 413 U.S. at 538. There are no analogous difficulties with DOMA Section 3. Court was then in the process of recognizing as quasi-suspect). The lone exception of Moreno is

Cf. Jimenez v. Weinberger, 417 U.S. 628, 94 S. Ct. 2496, 41 L. Ed. 2d 363 (1974)

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1 (prescribing extra deference for statutory distinctions that “inevitably involve[] the 2 kind of line-drawing that will leave some comparably needy person outside the 3 favored circle”) (footnote omitted). In such cases, Congress’s decision where to 4 draw the line is “virtually unreviewable.” Beach Commc’ns, 508 U.S. at 316. 5 Governmental definitions of who or what constitutes a family entail 6 precisely this kind of line-drawing exercise. In Village of Belle Terre v. Boraas, 7 416 U.S. 1, 8, 94 S. Ct. 1536, 39 L. Ed. 797 (1974), for example, the Supreme 8 Court upheld on rational basis review a zoning regulation defining unmarried 9 couples as “families” permitted to live together, but prohibiting cohabitation by 10 larger groups. The Court rejected the argument “that if two unmarried people can 11 constitute a ‘family,’ there is no reason why three or four may not,” noting that 12 “every line drawn by a legislature leaves some out that might well have been 13 included.” Id. In such cases, “the decision of the legislature must be accepted 14 unless we can say that it is very wide of any reasonable mark.” Id. at n.5 15 (quotation omitted). Thus, DOMA Section 3 can be struck down only if the line it 16 draws between a relationship between one man/one woman relationships and all 17 others – a line virtually every society everywhere has drawn for virtually all of 18 recorded history – is “very wide of any reasonable mark.” Id. 19 A classification is rational if “the inclusion of one group promotes a 20 legitimate governmental purpose, and the addition of other groups would not.” 21 Johnson v. Robison, 415 U.S. 361, 383, 94 S. Ct. 1160, 39 L. Ed. 2d 389 (1974). 22 The question, therefore, is not whether the denial of benefits to relationships other 23 than opposite-sex couples serves a government interest when considered in a 24 vacuum (nor, as Plaintiffs seem to assume, whether DOMA Section 3 by itself will 25 encourage opposite-sex couples to marry or have children, Mot. for PI at 10 & 26 n.10). Rather, the issue is whether there is a rational reason for extending benefits 27 to opposite-sex couples that does not apply in the same way, or to the same degree, 28 24

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1 to same-sex couples. If Congress could not offer a benefit to one class, but not to 2 other classes, unless the denial itself conferred some additional benefit on the first 3 class, then a host of government benefits would have to either extended to virtually 4 everyone or eliminated.23 5 6 7 DOMA Section 3 is supported by a host of rational bases, as we now show. 1. Uniquely Federal Interests.

In defining marriage for federal law purposes, Congress was motivated by

8 several interests peculiar to the federal government. See generally Massachusetts, 9 682 F.3d at 12 (“Congress surely has an interest in who counts as married. The 10 statutes and programs that [DOMA] governs are federal regimes . . . .”). 11 a. Maintaining a Uniform Federal Definition of Marriage. Congress has 12 “legitimate interests in efficiency, fairness, predictability, and uniformity” in 13 federal programs, In re Cardelucci, 285 F.3d 1231, 1236 (9th Cir. 2002), and 14 DOMA Section 3 manifestly serves the federal interest in uniform eligibility for 15 federal benefits – that is, in ensuring that similarly-situated couples will be eligible 16 for the same federal marital status regardless of the state in which they live.24 17 The Hawaii Supreme Court’s Baehr decision presented Congress with three 18 choices with respect to the substantive eligibility criteria for federal marital 19 benefits. Congress could have (a) adopted the approach of the majority of the 20
23

For instance, in Regan v. Taxation With Representation of Wash., 461 U.S. 540, 550-

21 51, 103 S. Ct. 1997, 76 L. Ed. 2d 129 (1983), the Supreme Court held that it was “not irrational 22 generally, it will subsidize lobbying by veterans’ organizations,” despite the obvious fact that
for Congress to decide that, even though it will not subsidize substantial lobbying by charities offering a tax benefit to other charities would have little if any effect on the benefit to veterans’

23 groups. The same could be said of most other government benefits. 24 24 See, e.g., 142 Cong. Rec. 10468 (1996) (Sen. Nickles) (DOMA “will eliminate legal 25 important” to prevent “people in different States [from having] different eligibility to receive 26 Federal benefits”); see also 150 Cong. Rec. 15318 (2004) (Sen. Inhofe) (the issue “should be
handled on a Federal level [because] people constantly travel and relocate across State lines 27 throughout the Nation”).

uncertainty concerning Federal benefits”); id. at 22459 (1996) (Sen. Ashcroft) (finding it “very

28 25

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1 states and limited marriage to opposite-sex couples for purposes of federal law; (b) 2 incorporated a patchwork of state rules into federal law, meaning that federal 3 benefits for same-sex couples would depend on the varying laws of the individual 4 states; or (c) recognized same-sex marriage nationwide for federal purposes. Any 5 of these choices would have been rational – including (a), the one Congress chose. 6 Congress rationally could, and did, reject option (c), which would have 7 required Congress to flout the approach of every state in the country at the time 8 DOMA was enacted, and the approach of the vast majority of states today. And 9 plainly, Congress rationally could conclude that a uniform nationwide definition 10 was desirable, and thus reject option (b) (Plaintiffs’ preferred approach). It was 11 more than rational for Congress to avoid treating same-sex couples differently for 12 purposes of federal law on the basis of their states of residence. Moreover, given 13 the varying approaches to same-sex marriage taken by the states, it was rational for 14 Congress to avoid the confusion that would reign when same-sex couples marry in 15 a state or country that permits it, but then reside in a state that does not recognize 16 such marriages.25 The federal government would have been forced either to 17 recognize such marriages (in conflict with the laws of the couple’s state of 18 residence), or disregard a previously federally-recognized marriage if the couple 19 moved from the state where the marriage took place to a non-recognition state. 20 Once it became clear that some states might recognize same-sex marriages, 21 Congress had to choose between uniformity in either (i) the substantive eligibility 22 25 23 24 25 26 27 28 26

See, e.g., 152 Cong. Rec. 10067 (2006) (Sen. Carper) (if a Delaware same-sex couple “go[es] to another country or another place where same-sex marriages are allowed . . . they are not married in my State”). Compare N.M. Att’y Gen. Op. No. 11-01, 2011 WL 111243 (Jan. 4, 2011) (predicting that New Mexico would recognize out-of-state same-sex marriages despite not issuing its own licenses to same-sex couples), with, e.g., Re: Recognition in New Jersey of Same-Sex Marriages, Civil Unions, Domestic Partnerships and Other Government-Sanctioned, Same-Sex Relationships Established Pursuant to the Laws of Other States and Foreign Nations, N.J. Att’y Gen. Op. No. 3-2007, 2007 WL 749807 (Feb. 16, 2007) (foreign same-sex marriages recognized as civil unions), and with, e.g., Fla. Const. art. I, § 27 (declining recognition).

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1 criteria for federal marital benefits, or (ii) the procedural practice of deferring to 2 state-law marital determinations. Congress reasonably chose to adopt the 3 definition of marriage that prevails among the vast majority of the states.26 In the 4 context of nationwide benefits and burdens, it surely is rational to treat two same5 sex couples in different states the same, rather than offering one couple distinct 6 benefits based on differences in state marriage law.27 7 b. Preserving the Public Fisc and Previous Legislative Judgments. By 8 maintaining the traditional definition of marriage in DOMA Section 3, Congress 9 preserved both the public fisc and the legislative judgments of countless earlier 10 Congresses, which used terms like “marriage” and “spouse” on the understanding 11 that the programs they created conferred benefits or imposed duties solely for those 12 in traditional marriages. See House Rep. at 18; supra pp. 8-11. 13
26

14 states confer a certain status and others do not, it is rational for Congress “in the strong interest
of uniformity” not to recognize the state-law status for federal purposes “rather than adopt a

See Nuñez-Reyes v. Holder, 646 F.3d 684, 690 (9th Cir. 2011) (en banc) (where some

15 piecemeal approach” (quoting Nuñez-Reyes v. Holder, 602 F.3d 1102, 1107 (9th Cir. 2010) 16 (Graber, J., concurring))); Dailey v. Veneman, No. 01-3146, 2002 WL 31780191, at *3 (6th Cir. 17 the program at issue that “Congress may have wanted to avoid confusion by establishing a 18
uniform standard”).
27

Dec. 3, 2002) (describing “Congress’s interest in uniformity” as a rational basis and noting as to

Moreover, avoiding difficult choice-of-law questions that could arise if federal

19 benefits turned on state law recognition of out-of-jurisdiction marriages is a sufficient basis alone 20 absence of statutory direction otherwise (e.g., DOMA Section 3), the validity of a marriage is 21 law of the place where the parties resided when the right to benefits accrued.” 38 U.S.C. § 22 103(c). Given that the States currently take widely divergent views on the validity of a same-sex 23 24 25 26 27 28 27
marriage, see, e.g., supra p. 26 n.25, the federal government, in the absence of DOMA Section 3 or an analogous statute, would face a daunting administrative burden in assigning such veterans’ benefits. Furthermore, absent a uniform federal definition of marriage as to same-sex couples, there would be an arbitrary provision of dependent-spouse benefits only to those same-sex couples who happened to reside in a state that recognized same-sex marriage at the time that the couple married and/or when the benefits accrued. This is just one example of why it is certainly rational for the government to prefer a regime that treats same-sex couples uniformly (and one example that exposes Plaintiffs’ error in asserting: “Differing state laws on whether same-sex couples may marry cannot possibly burden the federal government,” Mot. for PI at 21). determined under “the law of the place where the parties resided at the time of marriage, or the to support DOMA Section 3. For example, in the context of veterans’ benefits and in the

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1

Although Section 3 applies to federal marital burdens as well as benefits, on

2 balance, Congress reasonably could have concluded that a more restricted 3 definition of marriage would preserve the federal fisc. See Massachusetts, 682 4 F.3d at 14 (Congress’s decision based on preserving scarce government resources 5 “may well be true, or at least might have been thought true”). In statutes 6 apportioning benefits, saving money by declining to expand pre-existing eligibility 7 requirements or avoiding massive fiscal uncertainty are themselves rational bases.28 8 To be sure, when government withdraws benefits that it previously offered 9 to a class of people, or affirmatively penalizes a class of people or imposes extra 10 financial obligations on them, saving money (or in the latter case, obtaining 11 money) alone may not justify the deprivation.29 But DOMA Section 3 does 12 neither. When Congress declines to extend benefits to those not previously 13 eligible, as here, the Supreme Court has recognized that this is justified by the 14 government interest in proceeding “cautiously” and protecting the fisc. Bowen, 15 476 U.S. at 348 (“A constitutional rule that would invalidate Congress’[s] attempts 16 to proceed cautiously in awarding increased benefits might deter Congress from 17 making any increases at all. The Due Process Clause does not impose any such 18 constitutional straitjacket.” (quotation marks and citation omitted)). 19 Congress expressly relied on this cost-saving rationale in enacting DOMA. 20 House Rep. at 18; see supra pp. 10-11. Indeed, Congress’s realization that 21
28

22 (1986); Dandridge v. Williams, 397 U.S. 471, 487, 90 S. Ct. 1153, 25 L. Ed. 2d 491 (1970)

See, e.g., Bowen v. Owens, 476 U.S. 340, 347-48, 106 S. Ct. 1881, 90 L. Ed. 2d 316

23 difficult responsibility of allocating limited public welfare funds among the myriad of potential 24 recipients.”); Ass’n of Residential Res. in Minn., Inc. v. Gomez, 51 F.3d 137, 141 (8th Cir. 1995)
(“Preserving the fiscal integrity of welfare programs is a legitimate state interest.”); Hassan v. 25 Wright, 45 F.3d 1063, 1069 (7th Cir. 1995) (“[P]rotecting the fisc provides a rational basis for Congress’s line drawing in this instance.”).

(“The Constitution does not empower this Court to second-guess state officials charged with the

26

See Plyler v. Doe, 457 U.S. 202, 205, 227, 102 S. Ct. 2382, 72 L. Ed. 2d 786 (1982); Rinaldi v. Yeager, 384 U.S. 305, 309-10, 86 S. Ct. 1497, 16 L. Ed. 2d 577 (1966). 27

29

28 28

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1 recognizing same-sex marriage for federal purposes would have a large and 2 unpredictable effect on the budgets of various federal agencies – benefitting some 3 agency budgets and substantially burdening others – would be a rational reason to 4 avoid such budgetary turmoil even were there some question whether the overall net 5 effect would be positive or negative. It was perfectly rational for Congress to avoid 6 that uncertainty by maintaining the traditional definition. 7 Additionally, in enacting DOMA, Congress recognized that a host of pre8 existing federal statutes allocated marital burdens and benefits based on the 9 traditional definition of marriage – because there had never been any other 10 definition. The Congresses that enacted these programs therefore reached 11 legislative judgments exclusively with opposite-sex couples in mind. It was 12 reasonable for the Congress that enacted DOMA to preserve those legislative 13 judgments and to allow those programs to operate in the manner initially intended. 14 In the context of federal regulation and spending, that surely is rational. 15 c. Caution in Facing the Unknown Consequences of a Novel Redefinition of 16 a Foundational Social Institution. Marriage is the Nation’s most important social 17 institution and one of the foundations of our society. See 150 Cong. Rec. 15347 18 (2004) (Sen. Clinton) (marriage is “the fundamental bedrock principle that exists 19 between a man and a woman, going back into the mi[]st of history as one of the 20 foundational institutions of history and humanity and civilization”). Accordingly, 21 in enacting DOMA Section 3, Congress had a supremely rational basis to proceed 22 with caution in considering whether to drop a criterion – opposite-sex couples – 23 that until now has been an essential element of such an enormously important 24 social concept. See supra pp. 7-11. 25 No human society has experienced the long- or even medium-term effects of 26 widespread acceptance of same-sex relationships as marriages. There thus is 27 ample room for a wide range of predictions about the likely effect of such 28 29

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1 recognition. As two supporters of same-sex marriage put it, “whether same-sex 2 marriage would prove socially beneficial, socially harmful, or trivial is an 3 empirical question . . . . There are plausible arguments on all sides of the issue, 4 and as yet there is no evidence sufficient to settle them.” William Meezan & 5 Jonathan Rauch, Gay Marriage, Same-Sex Parenting, and America’s Children, 15 6 Future of Children 97, 110 (Fall 2005), 7 http://futureofchildren.org/futureofchildren/publications/docs/15_02_06.pdf 8 (endorsing a “limited, localized experiment” at the state level). 9 In enacting DOMA, Congress reasonably compared the ancient and well10 established benefits of traditional marriage with the near complete lack of 11 information about the consequences of recognizing same-sex marriages and 12 concluded that no basis had been identified to support such a major and 13 unprecedented redefinition of such an important institution.30 Particularly in light 14 of the traditional role of states serving as “laborator[ies] . . . [of] novel social and 15 economic experiments without risk to the rest of the country,” New State Ice Co. v. 16 Liebmann, 285 U.S. 262, 309, 52 S. Ct. 371, 76 L. Ed. 747 (1932) (Brandeis, J., 17 dissenting), Congress rationally decided to let states experiment, while the federal 18 19 20 21 22 23 24 25 26 27 28 30
See, e.g., 150 Cong. Rec. 4684 (2004) (Sen. Cornyn) (“The institution of marriage is just too important to leave to chance. . . . The burden of proof is on those who seek to experiment with traditional marriage, an institution that has sustained society for countless generations.”); id. at 14942 (Sen. Hatch) (“The jury is out on what the effects on children and society will be . . . . [G]iven the uncertainty of a radical change in a fundamental institution like marriage, popular representatives should be given deference on this issue.”); id. at 14949 (Sen. Frist) (calling same-sex marriage “a vast untested social experiment for which children will bear the ultimate consequences”); id. at 14951 (Sen. Sessions) (“I think anybody ought to be reluctant to up and change [the traditional definition of marriage]; to come along and say, well, you know, everybody has been doing this for 2000 years, but we think we ought to try something different.”); id. at 15444 (Sen. Smith) (expressing reluctance to “tinker[] with the foundations of our culture, our civilization, our Nation, and our future”); 152 Cong. Rec. 10058 (2006) (Sen. Talent) (“[T]he evidence is not even close to showing that we can feel comfortable making a fundamental change in how we define marriage so as to include same-sex marriage within the definition.”).
30

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1 government continued to apply the traditional definition for federal law purposes. 2 Congress’s decision to neither attempt to override state law definitions for state 3 purposes nor adopt novel re-definitions for purposes of federal law surely is a 4 rational response to a change in the definition of a foundational social institution.31 5 6 2. Common Federal-State Interests.

In addition to the above-noted uniquely federal rationales, DOMA Section 3

7 also is supported by rationales that justified the states’ adoption of the traditional 8 definition of marriage in the first place. Congress would not have needed to 9 engage in any fact-finding of its own to come to this conclusion: At DOMA 10 Section 3’s enactment, no state recognized same-sex marriage. And even now the 11 great majority of states recognize only opposite-sex relationships as marriages. 12 For that reason alone, it surely is rational for Congress to adopt the states’ 13 judgment as its own in this regard. Nevertheless, this section articulates some of 14 the rationales that reasonably could justify the decisions of both the great majority 15 of states and Congress to recognize only traditional marriages. 16 The traditional definition recognizes the close relationship between 17 opposite-sex marriages and child-rearing. Until recent scientific advances, 18 children could be conceived only though the union of one woman and one man, 19 and this remains the nearly exclusive means by which new lives are brought into 20 21 22 23 24 25 26 27 28 31
To be sure, “[s]tanding alone, historical patterns cannot justify contemporary violations of constitutional guarantees, but there is far more here than simply historical patterns.” Marsh v. Chambers, 463 U.S. 783, 790, 103 S. Ct. 3330, 77 L. Ed. 2d 1019 (1983). In considering DOMA, Congress recognized that marriage between a man and a woman “is deeply embedded in the history and tradition of this country” and “has become part of the fabric of our society” in a way that has produced countless immeasurable benefits. Id. at 786, 792. DOMA thus was born not of a reflexive adherence to tradition but of an appreciation for these vast benefits and a reluctance to change the institution of marriage in a way that could have unpredictable consequences. See Lawrence, 539 U.S. at 585 (O’Connor, J., concurring) (“preserving the traditional institution of marriage” is a rational basis for “laws distinguishing between heterosexuals and homosexuals”).
31

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1 existence. Likewise, “[u]ntil a few decades ago, it was an accepted truth for almost 2 everyone who ever lived, in any society in which marriage existed, that there could 3 be marriages only between participants of different sex.” Hernandez v. Robles, 4 855 N.E.2d 1, 8, 7 N.Y.3d 388, 821 N.Y.S.2d 770 (N.Y. 2006). Although 5 marriage fulfills other functions, its defining purpose is the creation of a social 6 structure to deal with the inherently procreative nature of the male-female 7 relationship – the word “matrimony” itself implicates parenthood. Marriage 8 attempts to promote permanence and stability, which are vitally important to the 9 welfare of the children of marriages. 10 Congress recognized this in enacting DOMA, noting that, “[s]imply put, 11 government has an interest in marriage because it has an interest in children.” 12 House Rep. at 13. This accords with the long tradition of our law.32 Opposite-sex 13 relationships have inherent procreative aspects that can produce unplanned 14 offspring. For this reason, heterosexual relationships implicate the state interest in 15 responsible procreation in a different way, and to a different degree, than do 16 homosexual relationships, and therefore rationally may be treated differently by the 17 government. Numerous courts have upheld states’ traditional marriage laws on 18 this basis.33 Foreign governments have expressed the same view.34 19
32

E.g., 1 William Blackstone, Commentaries on the Laws of England *447 (citing

20 Puffendorf that “[t]he duty of parents to provide for the maintenance of their children[] is a 21 marriage in all civilized states is built on this natural obligation” (emphasis omitted)); id. *455 22 Marriage and the Law: A Statement of Principles 6, 18 (2006) (large group of family and legal 23 scholars who “do not all agree substantively on . . . whether the legal definition of marriage
should be altered to include same-gender couples,” stating that “[m]arriage and family law is 24 fundamentally oriented towards creating and protecting the next generation.”). California law reflects the same principle. Aufort v. Aufort, 49 P.2d 620, 9 Cal. App. 2d 310 (Cal. Dist. Ct. 25 App. 1935) (“[P]rocreation of children is the most important end of matrimony . . . .”). (“the main end of marriage” is “the protection of infants”); Institute for American Values, principle of natural law”; citing Montesqueiu for the proposition “that the establishment of

See Citizens for Equal Prot., 455 F.3d at 867-68 (challenge to Nebraska state constitutional amendment); Conaway, 932 A.2d at 630-31 (challenge to Maryland state statute); 27 Andersen, 138 P.3d at 982-83 (challenge to Washington state statute).

26

33

28 32

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1

a. Subsidizing the Begetting and Raising of Children. Opposite-sex

2 relationships are unique in their inherent biological tendency to beget children: 3 Opposite-sex couples can, and do, conceive children without planning or intending 4 to. And the State has an interest in channeling procreative heterosexual activity 5 into the stable, permanent structure of marriage for the sake of children (especially 6 unplanned children) that may result. Moreover, because heterosexual relationships 7 between unmarried individuals sometimes result in unplanned offspring, the 8 government has an interest in encouraging marriage to provide a stable 9 environment for those children. Same-sex couples do not present this concern. 10 Unsurprisingly, only a tiny fraction of all children are raised in households 11 headed by same-sex couples,35 meaning that the overwhelming majority either are 12 raised by opposite-sex couples or were conceived in an opposite-sex relationship. 13
34

14 Mission of Inquiry on the Family and the Rights of Children 68 (Jan. 25, 2006), English

See 1 French National Assembly, No. 2832: Report Submitted on Behalf of the

15 (“[I]t is not possible to consider marriage and filiation separately, since . . . marriage [is] built 16 around children.”); id. at 77 (“The institution of Republican marriage is inconceivable absent the 17 – the infertility of same-sex couples . . . . Above all else, then, it is the interests of the child that 18 v. Austria ¶¶ 44, 63, No. 30141/04 Eur. Ct. H. R. 2010, available at http://archive.equallead a majority of the Mission to refuse to change the parameters of marriage.”); Schalk & Kopf jus.eu/109/1/Schalk_and_Kopf.pdf (same-sex couple argued that “the procreation and education

translation at http://www.preservemarriage.ca/docs/France_Report_on_the_Family_Edited.pdf

idea of filiation and the sex difference is central to filiation. It corresponds to a biological reality

19 of children was no longer a decisive element” of marriage; Austria and the United Kingdom 20 opposed and the Court found no right to same-sex marriage); Joslin v. New Zealand ¶¶ 3.2, 8.2,
8.3, No. 902/1999 H.R. Comm. 2002, in 2 Report of the Human Rights Comm., U.N. Doc.

21 A/57/40, 214 (2002), available at http://daccess22 argued, inter alia, “that marriage centres on procreation, and homosexuals are incapable of
ods.un.org/access.nsf/Get?Open&DS=A/57/40(VOL.II)(SUPP)%20&Lang=E (New Zealand procreation” and “that marriage is an optimum construct for parenting”; the Committee found no

23 right to same-sex marriage). 35 24 UCLA’s Williams Institute estimates that “[a]s of 2005 . . . 270,313 of the U.S.’s

25 Snapshot 2 (Dec. 2007), http://escholarship.org/uc/item/6nx232r4, or 0.37% of the 73,494,000 26 children in the U.S. that year. See Living Arrangements of Children Under 18 Years Old: 1960
to Present, U.S. Census Bureau, http://www.census.gov/hhes/families/data/children.html 27 (download “Table CH-1”) (number of children).

children are living in households headed by same-sex couples,” Adam P. Romero et al., Census

28 33

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1 Thus, Congress rationally could desire to support children by focusing on opposite2 sex couples. Similarly, opposite-sex couples continue to raise children in 3 significantly greater proportions than same-sex couples.36 And, in all events, 4 same-sex couples do not raise the same issues with unplanned pregnancies. 5 Thus, the government rationally can limit an institution designed to facilitate 6 child-rearing to relationships in which the vast majority of children are raised, which 7 involve child-rearing considerably more often than other relationships, and which 8 implicate unique concerns about unplanned pregnancies. Notably, this 9 governmental interest exists regardless of whether the traditional mother-father 10 childrearing arrangement is in any sense “better” than any other.37 11 12 13 14 15 16 17 18 19
2010 Census data indicate that only one in six same-sex couples are raising children. Daphne Lofquist et al., Households and Families: 2010, Census Br. C2010BR-14, tbl. 3 (Apr. 2012) (examine “Same-sex partner preferred estimates” data), available at http://www.census.gov/prod/cen2010/briefs/c2010br-14.pdf. This compares with the approximately 40% of opposite-sex couples (both married and unmarried) raising children. Id. (“Husband-wife households” and “Opposite-sex partner” data). Another Williams Institute scholar estimates that the proportion of same-sex couples raising children is falling over time, as “[d]eclines in social stigma toward [gay, lesbian and bisexual] people mean that more are coming out earlier in life and are becoming less likely to have children with different-sex partners” before starting a household with a same-sex partner. Gary J. Gates, Family formation and raising children among same-sex couples, Family Focus on . . . LGBT Families (Nat’l Council on Fam. Rel.), Winter 2011, at F2, available at http://williamsinstitute.law.ucla.edu/wpcontent/uploads/Gates-Badgett-NCFR-LGBT-Families-December-2011.pdf.
37 36

20 “has no coherent relationship to promoting heterosexual marriage,” Mot. for PI at 10, citing only 21 to an administrative ruling by a single Judge: In re Levenson, 587 F.3d 925, 932 (9th Cir. E.D.R.
2009). Equating an administrative ruling – which has no precedential value, see Forrester v.

Plaintiffs respond by stating that “this Circuit” has concluded that DOMA Section 3

22 White, 484 U.S. 219, 228, 108 S. Ct. 538, 98 L. Ed. 2d 555 (1988) (judge’s “[a]dministrative 23 24 25 26 27 28 34
decisions, even though they may be essential to the very functioning of the courts, have not similarly been regarded as judicial acts”) – with circuit precedent is a substantial error, and one that Plaintiffs repeat frequently, see, e.g., Mot. for PI at 11 n.11, 12 n.12, 21. This error is particularly inexcusable because the House has called Plaintiffs’ lawyers on it before. Compare [Pls.’] Opp’n to [House]’s Mot. to Dismiss at 11-12, Lui v. Holder, No. 2:11-cv-01267 (C.D. Cal. Sept. 2, 2011) (ECF No. 31) (misciting In re Levenson, 560 F.3d 1145 (9th Cir. E.D.R. 2009), as Ninth Circuit authority), with [House]’s Consolidated Reply to Pls.’ and [DOJ’s] Opp’n to [House]’s Mot. to Dismiss (“House Lui Reply”) at 7-8, Lui v. Holder, No. 2:11-cv01267 (C.D. Cal. Sept. 12, 2011) (ECF No. 35) (noting plaintiffs’ mistake).

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1

Plaintiffs’ observation that married couples are not required to have children,

2 see Mot. for PI at 19-20, does not change any of this. Since only a man and a 3 woman can beget a child together, logically, making those same parties the only 4 ones eligible for marriage is a rational way of linking the two. Cf. Tuan Anh 5 Nguyen v. INS, 533 U.S. 53, 70, 121 S. Ct. 2053, 150 L. Ed. 2d 115 (2001) (even 6 under heightened scrutiny, where a statute classifies based on a genuine biological 7 difference, the courts have not “required that the statute . . . be capable of 8 achieving its ultimate objective in every instance”). This is particularly true where 9 most opposite-sex couples’ ability and willingness to raise children cannot be 10 determined in advance without intolerable and possibly unconstitutional intrusions 11 on their privacy – and even then could not be determined with much reliability in 12 many cases. And surely the government’s acceptance of unmarried parents does 13 not make it irrational for it to encourage parents to marry, and stay married. 14 b. Encouraging and Subsidizing the Raising of Children by Their Own 15 Biological Mothers and Fathers. One of the strongest presumptions known to our 16 culture and law is that a child’s biological mother and father are the child’s natural 17 and most suitable guardians and caregivers, and that this family relationship will 18 not lightly be interfered with. E.g., Santosky v. Kramer, 455 U.S. 745, 760 n.11, 19 766, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982).38 Our tradition offers the same 20 protections for an adoptive parent-child relationship, once it is formed – but the 21 stringent standards imposed for eligibility to adopt, which never would be required 22 as a condition of custody of one’s own biological offspring, demonstrate the 23
Plaintiffs also rely on In re Balas, 449 B.R. 567, 578 (Bankr. C.D. Cal. 2011), see Mot. for PI at 10 n.10, 11 n.11, 12 n.12, a bankruptcy court case in which no party defended DOMA 25 Section 3, as the House previously has noted. See House Lui Reply at 7-8 & n.3.

24

International law recognizes the same principle. See United Nations Convention on the Rights of the Child, art. 7, 28 I.L.M. 1456, 1460 (Nov. 20, 1989) (a child has a right, “as far 27 as possible, . . . to know and be cared for by his or her parents”).

26

38

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1 unique value we place on the biological parent-child relationship. See Mullins v. 2 Oregon, 57 F.3d 789, 794 (9th Cir. 1995) (no fundamental liberty interest in 3 adopting a child); Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 31 L. Ed. 4 2d 551 (1972) (noting protected interest of “a man in the children he has sired and 5 raised”). There is a sound logical basis for this bedrock assumption: biological 6 parents have a genetic stake in the success of their children that no one else does. 7 It is rational for the government to encourage relationships that result in 8 mothers and fathers jointly raising their biological children. By offering benefits to 9 opposite-sex couples in enacting DOMA Section 3, and imposing the marital 10 expectations of fidelity, longevity, and mutual support, that is what Congress did. 11 Because same-sex relationships are incapable of creating families of mother, 12 father, and biological children, the legitimate state interest in promoting a family 13 structure that facilitates the rearing of children by both biological parents is 14 distinctively served by the traditional definition. 15 Plaintiffs claim, in passing, that parenting by same-sex couples is 16 interchangeable with parenting by a child’s biological mother and father. Mot. for 17 PI at 20. But this conclusion is, to say the least, insufficiently well-established, 18 such that Congress’ unwillingness to accept it cannot be said to be irrational. The 19 state of the research in this area was well summarized by two self-described 20 supporters of same-sex marriage in 2005: “[T]hose who say the evidence shows 21 that many same-sex parents do an excellent job of parenting are right. Those who 22 say the evidence falls short of showing that same-sex parenting is equivalent to 23 opposite-sex parenting (or better, or worse) are also right.” Meezan & Rauch, 24 supra p. 31, at 104; see also Hernandez, 855 N.E.2d at 8 (“What [the studies] 25 show, at most, is that rather limited observation has detected no marked 26 differences.”). While many states allow same-sex couples to adopt and raise 27 children, without interference by Congress, Congress still rationally could find 28 36

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1 appropriate a unique degree of federal government encouragement for 2 arrangements where children are raised by the man and woman who begat them.39 3 c. Encouraging Childrearing in a Setting with Both a Mother and a Father. 4 As the Supreme Court has recognized in other contexts: “‘The two sexes are not 5 fungible; a community made up exclusively of one sex is different from a 6 community composed of both.’” U.S. v. Virginia, 518 U.S. 515, 533, 116 S. Ct. 7 2264, 135 L. Ed. 2d 735 (1996) (quoting Ballard v. U.S., 329 U.S. 187, 193, 67 S. 8 Ct. 261, 91 L. Ed. 181 (1946) (brackets omitted)). Thus, even aside from the 9 biological link between parents and children, biological differentiation in the roles 10 of mothers and fathers makes it fully rational to encourage family situations that 11 allow children have one of each. Common sense, and the experience of countless 12 parents, inform us that children relate and react differently to mothers and fathers 13 based on differences between men and women in parenting style, size, and voice 14 tone. Moreover, the different challenges faced by boys and girls as they grow to 15 adulthood make it eminently rational to think that children benefit from being 16 raised by role models of both sexes.40 17 18 19
Plaintiffs also err in suggesting that, if DOMA Section 3 does not advance a particular rational basis in a particular application, that rational basis fails. See Mot. for PI at 20. Just the 21 opposite pertains: Under rational basis review, there need not be any perfect “fit between [the] means and [the] ends,” Heller, 509 U.S. at 320-21; a statute may be both “underinclusive and 22 overinclusive,” Vance, 440 U.S. at 108. Cf. Tuan Anh Nguyen, 533 U.S. at 70 (even when heightened scrutiny applies, courts have not “required that the statute under consideration . . . be 23 capable of achieving its ultimate objective in every instance”).
39

20

24

Congress also rationally could conclude that opposite-sex couples are more likely to remain together in committed relationships than are same-sex couples, as recent empirical 25 evidence tends to suggest. E.g., Matthijs Kalmijn, et al., Income Dynamics in Couples and the 26 Dissolution of Marriage and Cohabitation, 44 Demography 159, 170 (2007); Gunnar Andersson, et al., The Demographics of Same-Sex Marriages in Norway and Sweden, 43 Demography 79, 93 27 (2006).

40

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1 IV. 2

DOMA Section 3 Satisfies Substantive Due Process Principles. Plaintiffs also claim that DOMA Section 3 violates the substantive due

3 process component of the Fifth Amendment, and is subject to a heightened 4 standard of review in this context. Compl. ¶¶ 72, 73; Mot. for PI at 6-14. But 5 heightened substantive due process review applies only where a fundamental 6 liberty interest is both at stake and infringed. Here, neither is the case. 7 8 A. No Fundamental Liberty Interest Is at Stake.

In the substantive due process context, only “those fundamental rights and

9 liberties which are, [i] objectively, deeply rooted in this Nation’s history and 10 tradition, and [ii] implicit in the concept of ordered liberty” should be recognized 11 for heightened scrutiny. Washington v. Glucksberg, 521 U.S. 702, 720-21, 117 S. 12 Ct. 2258, 138 L. Ed. 2d 772 (1997) (quotation marks and citations omitted). In 13 defining the right or interest at issue, the courts may not readily generalize to an 14 abstract description so as to implicate such a right or interest; rather, courts must 15 “careful[ly]” describe the asserted right or interest at issue. Id. at 721 (quotation 16 marks omitted). 17 18 19 20 21 22 23 24 25 26 27 28 38 By extending constitutional protection to an asserted right or liberty interest, we, to a great extent, place the matter outside the arena of public debate and legislative action. We must therefore exercise the utmost care whenever we are asked to break new ground in this field lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the Members of this Court. Id. at 720 (quotation marks and citation omitted); see also Collins v. City of Harker Heights, Tex., 503 U.S. 115, 125, 112 S. Ct. 1061, 117 L. Ed. 2d 261 (1992) (“[T]he Court has always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended.”).

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1

In Glucksberg, for example, the Supreme Court considered a state law

2 barring an individual from assisting another in ending his or her own life. 521 U.S. 3 at 707. The Court did not define the interest at issue in the broad terms suggested 4 by those attacking the statute – e.g., as a right to “determin[e] the time and manner 5 of one’s death,” the “right to die,” a “liberty to choose how to die,” a right to 6 “control of one’s final days,” “the right to choose a humane, dignified death,” or 7 “the liberty to shape death” – but rather as the more narrow “right to assistance in 8 committing suicide.” Id. at 722-23, 726 (quotation marks omitted). As so defined, 9 the Court found no fundamental right or liberty. Id. at 723-28.41 10 The Ninth Circuit likewise has required the courts to adopt “a narrow 11 definition of the interest at stake” in considering an asserted substantive due 12 process fundamental right or liberty interest. Raich v. Gonzalez, 500 F.3d 850, 863 13 (9th Cir. 2007); see also id. at 864 (“[T]he right must be carefully stated and 14 narrowly identified before the ensuing analysis can proceed.”). Raich defined the 15 interest at stake there not as the “right to make life-shaping medical decisions that 16 are necessary to preserve the integrity of her body, avoid intolerable physical pain, 17 and preserve her life,” but rather as the “right to use marijuana to preserve bodily 18 integrity . . .” – an interest that it had little trouble concluding was not entitled to 19 heightened substantive due process protection. Id. at 864-66 (brackets and 20 quotation marks omitted; emphasis in original). 21 22 23 24 25 26 27 28 39
See also Reno v. Flores, 507 U.S. 292, 302-03, 113 S. Ct. 1439, 123 L. Ed. 2d 1 (1993) (narrowly defining right at issue as “alleged right of a child who has no available parent, close relative, or legal guardian, and for whom the government is responsible, to be placed in the custody of a willing-and-able private custodian rather than of a government-operated or government-selected child-care institution” rather than an asserted right to “freedom from physical restraint” or “to be released from all other custody into the custody of its parents, legal guardian, or even close relatives”; also noting: “The mere novelty of . . . a claim is reason enough to doubt that substantive due process sustains it” (quotation marks omitted)).
41

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1

Here, the Complaint as pled indicates that Plaintiffs seek to vindicate an

2 alleged right of Ms. DeLeon to obtain reconsideration, based on her obtaining a 3 state marriage certificate after many years of unlawful presence in this country, of 4 USCIS’s determination that she is not eligible to adjust to lawful permanent 5 resident status (because she misrepresented to the federal government a material 6 fact about herself at the time of her initial entry into this country in 1989). See 7 Compl. ¶ 27; First USCIS Dec. at 3. That is not a fundamental right or liberty 8 interest. Certainly there is no “objective[],” “deeply rooted . . . history and 9 tradition” in this country of allowing such a reopening on that basis (or any other). 10 Glucksberg, 521 U.S. at 720-21; see also, e.g., Mullins, 57 F.3d at 793-95 11 (considering history, traditions, and practices to determine that proposed right not 12 appropriate for substantive due process recognition). Nor is such an opportunity to 13 reopen “implicit in the concept of ordered liberty,” which serves as an independent 14 reason why Plaintiffs’ proposed fundamental right or interest must be rejected. 15 Glucksberg, 521 U.S. at 721 (quotation marks omitted).42 Indeed, Congress at any 16 time could remove any opportunity of a petitioner to seek re-opening of the denial 17 of a waiver of a determination of non-eligibility for adjustment of status.43 18
Even were this Court – contrary to the express direction of the Supreme Court and Ninth Circuit – to define the interest at stake broadly as the denial of any right based on status as 20 a same-sex spouse, there is no long history in the United States of recognition of such a right. In fact, same-sex marriage first was allowed in this country only eight years ago. See Jackson, 21 2012 WL 3255201, at *22 (“In fact, [opposite sex marriage] is the historically and traditionally 22 understood definition; [same-sex marriage] was first allowed by a state in 2004 . . . .”).

19

42

43

23 882 (1988) (Congress has “exclusive constitutional power” over immigration and nationalization 24 matters); Fiallo v. Bell, 430 U.S. 787, 792, 97 S. Ct. 1473, 52 L. Ed. 2d 50 (1977) (“[O]ver no

See, e.g., I.N.S. v. Pangilinan, 486 U.S. 875, 882-83, 108 S. Ct. 2210, 100 L. Ed. 2d

conceivable subject is the legislative power of Congress more complete than it is over the 25 admission of aliens.” (quotation marks omitted)). More than that, Congress at any time could remove any opportunity for a waiver at all, or even flatly preclude any opportunity for an alien to 26 obtain adjustment of status, period. See, e.g., Miller v. Albright, 523 U.S. 420, 456, 118 S. Ct. 1428, 140 L. Ed. 2d 575 (1998) (“Because only Congress has the power to set the requirements 27 for acquisition of citizenship by persons not born within the territory of the United States, federal

28 40

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1 2

B.

DOMA Does Not Infringe Plaintiffs’ Purported Liberty Interest.

Plaintiffs seek to avoid the force of this argument by defining their asserted

3 interest at an extremely high level of generality. In Plaintiffs’ telling, the right at 4 issue is “the integrity of their lawful marriage and their most intimate family 5 relationships.” Compl. ¶ 72. This, of course, is precisely what the Supreme Court 6 and Ninth Circuit have instructed courts not to do. See supra pp. 38-40. However, 7 even if this Court were to accept this articulation of Plaintiffs’ interest, and to deem 8 it fundamental, Plaintiffs’ asserted liberty interest is not infringed by DOMA 9 Section 3 and, accordingly, heightened scrutiny is not triggered. 10 The failure of the government to facilitate the exercise of a fundamental 11 right does not amount to an infringement of that right, as the Supreme Court 12 repeatedly has held.44 Put another way, while substantive due process principles 13 bar the government from directly infringing certain rights, e.g., by criminalizing 14 the exercise of that right, see Lawrence, 539 U.S. 558, the government is not 15 obligated to facilitate the exercise of such rights in its allocation of benefits.45 16
respect to immigration matters is . . . ingrained in our law.”). There simply exists no

courts cannot exercise that power under the guise of their remedial authority.”); Catholic Soc.

17 Servs., Inc. v. Reno, 134 F.3d 921, 926 (9th Cir. 1997) (“[Congress’s] plenary authority with 18 fundamental right of the sort envisioned by Plaintiffs. Plaintiffs’ claim actually sounds in equal 19 context, it may not deny those rights to same-sex spouses while simultaneously granting them to 20 opposite-sex spouses. That claim fails for reasons stated above. See supra pp. 16-37.
44

protection, that is, where Congress provides for certain procedural rights in the immigration

21 S. Ct. 998, 103 L. Ed. 2d 249 (1989) (“[T]he Due Process Clauses generally confer no 22 affirmative right to governmental aid, even where such aid may be necessary to secure life,

See, e.g., DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 196, 109

liberty, or property interests of which the government itself may not deprive the individual.”); 23 Bowen v. Gilliard, 483 U.S. 587, 601-02, 107 S. Ct. 3008, 97 L. Ed. 2d 485 (1987) (“That some families may decide to modify their living arrangements in order to avoid the effect of the 24 amendment, does not transform the amendment into an act whose design and direct effect are to intrude on choices concerning family living arrangements.” (quotation marks omitted)).

25

See also, e.g., Califano v. Jobst, 434 U.S. 47, 54, 98 S. Ct. 95, 54 L. Ed. 2d 228 (1977) 26 (no infringement of substantive due process rights; government withdrawal of certain social security benefits upon marriage does not “interfere with the individuals’ freedom to make a 27 decision as important as marriage”); Lyng v. Auto. Workers, 485 U.S. 360, 368, 108 S. Ct. 1184,

45

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1

Here, DOMA Section 3 does not prohibit Ms. DeLeon and Ms. Rodriguez

2 from marrying, or from forming or maintaining any other family relationship; it 3 merely defines marriage for the purpose of distributing certain federal benefits and 4 burdens. Immigration determinations, of course, will have a practical effect on 5 how a couple is able to conduct their relationship – but so do many other 6 consequences of unlawful conduct imposed by the state, such as incarceration, that 7 never have been thought to interfere with any nebulous right to “integrity” of 8 “family relationships.” Plaintiffs cite no authority for the proposition that states 9 can commandeer federal immigration law simply by issuing marriage licenses to 10 aliens who entered and remained in the country unlawfully. Accordingly, DOMA 11 Section 3 does not infringe substantive due process,46 as even DOJ has recognized. 12 See supra p. 12 n.12.47 13

99 L. Ed. 2d 380 (1988) (denial of food stamps to striking households does not infringe First with Representation, 461 U.S. at 549 (noting that Court has held “in several contexts that a

14 Amendment right of association, even though denial burdens exercise of that right); Taxation 15 legislature’s decision not to subsidize the exercise of a fundamental right does not infringe the “appropriations [at issue] are comparable to 16 right”;matter of grace that Congress can, of course, tax exemptions and deductions, which are also a disallow as it chooses” (quotation marks, 17 brackets, and ellipsis omitted)); Harris v. McRae, 448 U.S. 297, 316-17 & n.19, 100 S. Ct. 2671,
65 L. Ed. 2d 784 (1980) (“A refusal to fund protected activity, without more, cannot be equated
46

18 with the imposition of a ‘penalty’ on that activity”). 19 20 21 22 23
See, e.g., Druker v. Comm’r, 697 F.2d 46, 50 (2d Cir. 1982) (“marriage penalty” in federal tax code does not violate substantive due process principles; “The adverse effect of the ‘marriage penalty,’ . . . like the effect of the termination of social security benefits in Jobst, is merely ‘indirect’”); Phila. Police & Fire Ass’n for Handicapped Children, Inc. v. City of Philadelphia, 874 F.2d 156, 165-66 (3d Cir. 1989) (reduction in services for mentally handicapped persons does not violate substantive due process principles because it “does not in itself require members of the class to leave their family homes or enter institutions . . . although it may make it more likely that they will do so”).
47

24 heightened scrutiny applies. See Mot. for PI at 6-14 (never arguing that DOMA Section 3 25 violates substantive due process principles under rational basis review). Because DOMA

Plaintiffs’ substantive due process claim depends entirely on the contention that

Section 3 satisfies rational basis review, see supra pp. 22-37, it does not violate substantive due process. See, e.g., U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 173 n.8, 101 S. Ct. 453, 66 L. Ed. 26 2d 368 (1980) (“[I]f a federal statute is valid under the equal protection component of the Fifth 27 Amendment, it is perforce valid under the Due Process Clause of that Amendment.”).

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1 V. 2

Let the Democratic Process Work. When it comes to same-sex marriage, “it is difficult to imagine an area more

3 fraught with sensitive social policy considerations in which federal courts should 4 not involve themselves if there is an alternative.” Smelt v. Cnty. of Orange, 447 5 F.3d 673, 681 (9th Cir. 2006). Fortunately, there is an alternative: Same-sex 6 marriage is being actively debated in legislatures, in the press, and at every level of 7 government and society across the country. That is how it should be. These fora 8 require participants on both sides to persuade those who disagree, rather than 9 labeling them irrational or bigoted. Importantly, gay-rights supporters have ample 10 and increasing clout in Congress and the Executive Branch. Congress’s recent 11 repeal of “Don’t Ask, Don’t Tell” is one prominent example. See Don’t Ask, 12 Don’t Tell Repeal Act of 2010, Pub. L. No. 111-321, 124 Stat. 3515 (2010), 10 13 U.S.C. §§ 651, 654. And bills to repeal DOMA are pending in both houses of 14 Congress, and one has passed the Senate Judiciary Committee. See Respect for 15 Marriage Act, H.R. 1116, 112th Cong. (2011); The Respect for Marriage Act of 16 2011, S. 598, 112th Cong. (2011). 17 By contrast, the courts can intervene in the debate only to cut it short, and 18 only by denouncing the positions of the hundreds of Members of Congress who 19 voted for DOMA, of the President who signed it, and of a vast swathe of the 20 American people as not just mistaken or antiquated, but as wholly irrational. That 21 conclusion plainly is unwarranted as a matter of constitutional law; judicially 22 constitutionalizing the issue of same-sex marriage is unwarranted as a matter of 23 sound social and political policy while the American people are so actively 24 engaged in working through this issue for themselves. Instead, this Court should 25 “permit[] this debate to continue, as it should in a democratic society.” 26 Glucksberg, 521 U.S. at 735. 27 28 43

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CONCLUSION For all the foregoing reasons, the Court should grant the House’s motion to

3 dismiss. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 October 9, 2012

Respectfully submitted, By: /s/ Paul D. Clement Paul D. Clement BANCROFT PLLC48 Counsel for Intervenor-Defendant

Kerry W. Kircher, as ECF filer of this document, attests that concurrence in the filing of the document has been obtained from signatory Paul D. Clement. 27

48

28 44

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Exhibit A
(to Memorandum in Support of House Motion to Dismiss)

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1 Paul D. Clement (DC Bar 433215) pclement@bancroftpllc.com 2 H. Christopher Bartolomucci (DC Bar 453423) 3 cbartolomucci@bancroftpllc.com Nicholas J. Nelson (DC Bar 1001696) 4 nnelson@bancroftpllc.com 5 Michael H. McGinley (DC Bar 1006943) mmcginley@bancroftpllc.com 6 7 BANCROFT PLLC 1919 M Street, N.W. 8 Suite 470 9 Washington, D.C. 20036 202-234-0090 (telephone) 10 202-234-2806 (facsimile) 11 Of Counsel: 12 Kerry W. Kircher, General Counsel (DC Bar 386816) 13 Kerry.Kircher@mail.house.gov William Pittard, Deputy General Counsel (DC Bar 482949) 14 William.Pittard@mail.house.gov 15 Christine Davenport, Senior Assistant Counsel (NJ Bar 043682000) Christine.Davenport@mail.house.gov 16 Todd B. Tatelman, Assistant Counsel (VA Bar 66008) 17 Todd.Tatelman@mail.house.gov Mary Beth Walker, Assistant Counsel (DC Bar 501033) 18 MaryBeth.Walker@mail.house.gov 19 Eleni M. Roumel, Assistant Counsel (SC Bar 75763) Eleni.Roumel@mail.house.gov 20 21 OFFICE OF GENERAL COUNSEL, U.S. HOUSE OF REPRESENTATIVES 22 219 Cannon House Office Building 23 Washington, D.C. 20515 202-225-9700 (telephone) 24 202-226-1360 (facsimile) 25 Counsel for Intervenor-Defendant the Bipartisan 26 Legal Advisory Group of the U.S. House of Representatives 27 28

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA Southern Division ___________________________________ ) MARTIN R. ARANAS, IRMA ) No. 8:12-cv-01137-CBM (AJWx) RODRIGUEZ, and JANE DeLEON, ) ) MEMORANDUM OF Plaintiffs, ) INTERVENOR-DEFENDANT ) THE BIPARTISAN LEGAL v. ) ADVISORY GROUP OF THE ) UNITED STATES HOUSE OF JANET NAPOLITANO, et al., ) REPRESENTATIVES IN ) OPPOSITION TO MOTION Defendants, ) FOR PRELIMINARY ) INJUNCTION THE BIPARTISAN LEGAL ADVISORY ) GROUP OF THE U.S. HOUSE OF ) Hearing: Nov. 6, 2012 REPRESENTATIVES, ) Time: 10:00 a.m. ) Hon. Consuelo B. Marshall Intervenor-Defendant. ) ___________________________________ )

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TABLE OF CONTENTS

3 TABLE OF AUTHORITIES .................................................................. iii 4 INTRODUCTION .................................................................................. 1 5 BACKGROUND .................................................................................... 1 6 I. Factual Background, as Alleged......................................... 1 7 II. Procedural Background ...................................................... 4 8 A. House’s Motion to Dismiss ........................................... 4 9 B. Plaintiffs’ Motion for Preliminary Injunction ............... 6 10 III. Legal Background .............................................................. 7 11 A. DOMA’s Legislative Branch History ........................... 8 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 i ARGUMENT .......................................................................................... 14 I. Likelihood of Success on the Merits .................................. 14 A. Plaintiffs Lack Standing to Challenge DOMA Section 3 ........................................................................ 14 B. DOMA Section 3 Must Be Presumed to Be Constitutional ................................................................ 15 C. DOMA Section 3 Satisfies Equal Protection Principles ....................................................................... 16 1. Binding Precedent Foreclose Plaintiffs’ Equal Protection Claim ...................................................... 16 a. Binding Supreme Court Authority: Baker v. Nelson ................................................... 16 b. Binding Ninth Circuit Authority: Adams v. Howerton ............................................. 19 2. Rational Basis Review Applies to DOMA Section 3 ................................................................... 20 B. DOMA’s Executive Branch History ............................. 12 STANDARD OF REVIEW .................................................................... 13

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 II.

a. DOMA Section 3 Does Not Classify on the Basis of Gender ................................................... 22 3. DOMA Section 3 Satisfies Rational Basis Review . 22 a. Uniquely Federal Interests .................................. 25 i. Maintaining a Uniform Federal Definition of Marriage .................................................... 26 ii. Preserving the Public Fisc and Previous Legislative Judgments ................................... 28 iii. Caution in Facing the Unknown Consequences of a Novel Redefinition of a Foundational Social Institution ................... 30 b. Common Federal-State Interests......................... 32 i. Subsidizing the Begetting and Raising of Children ......................................................... 34 ii. Encouraging and Subsidizing the Raising of Children by Their Own Biological Mothers and Fathers ..................................................... 36 iii. Encouraging Childrearing in a Setting with Both a Mother and a Father ........................... 37 D. DOMA Section 3 Satisfies Substantive Due Process Principles ....................................................................... 38 1. No Fundamental Liberty Interest Is at Stake ........... 38 2. DOMA Does Not Infringe Plaintiffs’ Purported Liberty Interest ......................................................... 41 E. Let the Democratic Process Work ................................ 43 Injury .................................................................................. 44

22 CONCLUSION ....................................................................................... 49 23 24 25 26 27 28 ii

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TABLE OF AUTHORITIES

Constitutional Provisions, Statutes, and 3 Federal Rules of Civil Procedure 4 1 U.S.C. § 7 ............................................................................................. 1 5 6 5 U.S.C. § 8101 ....................................................................................... 7 7 5 U.S.C. § 8341 ....................................................................................... 7 8 8 U.S.C. § 1101 ....................................................................................... 1 9 8 U.S.C. § 1151 ....................................................................................... 2, 14, 19 10 11 8 U.S.C. § 1152 ....................................................................................... 2 12 8 U.S.C. § 1153 ....................................................................................... 2 13 8 U.S.C. § 1182 ....................................................................................... passim 14 8 U.S.C. § 1186a ..................................................................................... 7 15 16 8 U.S.C. § 1255 ....................................................................................... 3, 47 17 26 U.S.C. § 7703 ..................................................................................... 7 18 28 U.S.C. § 1257 ..................................................................................... 17 19 38 U.S.C. § 101 ....................................................................................... 7 20 38 U.S.C. § 103 ....................................................................................... 28 21 22 42 U.S.C. § 416 ....................................................................................... 7 23 Don’t Ask, Don’t Tell Repeal Act of 2010, Pub. L. No. 111-321, 124 Stat. 3515 (2010), 10 U.S.C. §§ 651, 24 654 ................................................................................................ 44 25 26 Homeland Sec. Act of 2002, Pub. L. No. 106-296, 116 Stat. 2135 (2002) ................................ 2 27 28 iii

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1 Illegal Immigration Reform and Immigration Responsibility Act of 1996, Pub. L. No. 104-208, Div. C, 110 Stat. 3009-546 (1996) .. 48 2 3 Morrill Anti-Bigamy Act, ch. 126, § 1, 12 Stat. 501, 501 (1862) .......... 7 4 Revenue Act of 1921, § 223(b)(2), 42 Stat. 227, 250 ............................... 7 5 Fed. R. Civ. P. 65 .................................................................................... 44 6 Fla. Const. art. I, § 27.............................................................................. 27 7 8 Cal. Veh. Code § 12801.5 (West 2012) .................................................. 46 9 2011 Cal. AB No. 2189 (Approved Sept. 30, 2012)............................... 46 10 11 12 Legislative Documents 13 142 Cong. Rec. (1996) ............................................................................ passim 14 150 Cong. Rec. (2004) ............................................................................ passim 15 152 Cong. Rec. (2006) ............................................................................ 27, 31 16 32 Weekly Comp. Pres. Doc. .................................................................. 8 17 18 Defense of Marriage Act: Hearing on H.R. 3396 Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 19 104th Cong. 32 (1996) .................................................................. 9, 10, 12 20 Defense of Marriage Act: Hearing on S. 1740 Before the S. Comm. 21 on the Judiciary, 104th Cong. (1996) ........................................... 12 22 23 24 Respect for Marriage Act, H.R. 1116, 112th Cong. (2011).................... 44 25 The Respect for Marriage Act, S. 598, 112th Cong. (2011) ................... 44 26 27 28 iv H.R. Rep. No. 104-664 (1996) ................................................................ passim

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1 Cases 2 Able v. United States, 155 F.3d 628 (2d Cir. 1998) ......................................................... 21 3 4 Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982) ...................................................... passim 5 6 Adams v. Howerton, 486 F. Supp. 1119 (C.D. Cal. 1980) ................................................ 7, 18 7 8 Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 115 S. Ct. 2097, 132 L. Ed. 2d 158 (1995) ........... 18 9 10 Aleknagik Natives, Ltd. v. Andrus, 648 F.2d 496 (9th Cir. 1980) ........................................................ 14 11 12 Andersen v. King Cnty., 138 P.3d 963, 158 Wash. 2d 1 (Wash. 2006) ............................... 18, 22 13 14 Ass’n of Residential Res. in Minn., Inc. v. Gomez, 51 F.3d 137 (8th Cir. 1995) .......................................................... 28 15 Aufort v. Aufort, 16 49 P.2d 620, 9 Cal. App. 2d 310 (Cal. Dist. Ct. App. 1935) ........ 33 17 Baehr v. Lewin, 18 852 P.2d 44, 74 Haw. 530 (Haw. 1993) ....................................... 8 19 Baker v. Nelson, 20 409 U.S. 810, 93 S. Ct. 37, 34 L. Ed. 2d 65 (1972) ..................... 5, 17 21 Baker v. Nelson, 22 191 N.W.2d 185, 291 Minn. 310 (Minn. 1971) ........................... 16, 17 23 Ballard v. United States, 329 U.S. 187, 193, 67 S. Ct. 261, 91 L. Ed. 181 (1946) .............. 38 24 25 Ben-Shalom v. Marsh, 881 F.2d 454 (7th Cir. 1989) ........................................................ 21 26 27 28 v

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1 Bishop v. Holder, No. 4:04-cv-00848 (N.D. Okla.)................................................... 13 2 3 Bowen v. Gilliard, 483 U.S. 587, 107 S. Ct. 3008, 97 L. Ed. 2d 485 (1987) ............. 42 4 5 Bowen v. Owens, 476 U.S. 340, 106 S. Ct. 1881, 90 L. Ed. 2d 316 (1986) ............. 28, 29 6 7 Califano v. Jobst, 434 U.S. 47, 98 S. Ct. 95, 54 L. Ed. 2d 228 (1977) ..................... 42 8 Catholic Soc. Servs., Inc. v. Reno, 9 134 F.3d 921 (9th Cir. 1997) ........................................................ 41 10 Citizens for Equal Prot. v. Bruning, 11 455 F.3d 859 (8th Cir. 2006) ........................................................... 20, 33 12 City of Cleburne, Tex. v. Cleburne Living Ctr., 13 473 U.S. 432, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985) ............. 20 14 City of Dallas v. Stanglin, 15 490 U.S. 19, 109 S. Ct. 1591, 104 L. Ed. 2d 18 (1989) .................. 22 16 Collins v. City of Harker Heights, Tex., 503 U.S. 115, 112 S. Ct. 1061, 117 L. Ed. 2d 261 (1992) ........... 39 17 18 Conaway v. Deane, 932 A.2d 571, 401 Md. 219 (Md. 2007) ...................................... 22, 33 19 20 Cook v. Gates, 528 F.3d 42 (1st Cir. 2008)........................................................... 20 21 22 Cozen O’Connor v. Tobits, No. 2:11-cv-00045 (E.D. Pa.) ....................................................... 13 23 24 Dailey v. Veneman, No. 01-3146, 2002 WL 31780191 (6th Cir. Dec. 3, 2002) .......... 27 25 26 Dandridge v. Williams, 397 U.S. 471, 90 S. Ct. 1153, 25 L. Ed. 2d 491 (1970) ............... 28 27 28 vi

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1 Davis v. Prison Health Servs., 679 F.3d 433 (6th Cir. 2012) ....................................................... 20 2 3 Dean v. District of Columbia, 653 A.2d 307, 63 USLW 307 (D.C. 1995) ..................................... 7 4 5 DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 109 S. Ct. 998, 103 L. Ed. 2d 249 (1989) ............. 42 6 7 Dragovich v. U.S. Dep’t of Treasury, No. 4:10-cv-01564 (N.D. Cal.) ..................................................... 13, 22 8 Druker v. Comm’r, 9 697 F.2d 46 (2d Cir. 1982) ........................................................... 43 10 FCC v. Beach Commc’ns, Inc., 11 508 U.S. 307, 113 S. Ct. 2096, 124 L. Ed. 2d 211 (1993)............. 22, 23, 24 12 Fiallo v. Bell, 13 430 U.S. 787, 97 S. Ct. 1473, 52 L. Ed. 2d 50 (1977) ................. 41 14 Forrester v. White, 15 484 U.S. 219, 108 S. Ct. 538, 98 L. Ed. 2d 555 (1988) ............... 35 16 Frontiero v. Richardson, 411 U.S. 677, 93 S. Ct. 1764, 36 L. Ed. 2d 583 (1973) ............... 20 17 18 Golinski v. U.S. Office of Pers. Mgmt., 824 F. Supp. 2d 968 (N.D. Cal. 2012) .......................................... 21 19 20 Golinski v. U.S. Office of Pers. Mgmt., No. 3:10-cv-00257 (N.D. Cal.) ..................................................... 13 21 22 Golinski v. Office of Pers. Mgmt., Nos. 12-15388 & 12-15409 (9th Cir.) .......................................... 13 23 24 GTE Corp. v. Williams, 731 F.2d 676 (10th Cir. 1984) ...................................................... 49 25 26 Harris v. McRae, 448 U.S. 297, 100 S. Ct. 2671, 65 L. Ed. 2d 784 (1980) ............. 42 27 28 vii

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1 Hassan v. Wright, 45 F.3d 1063 (7th Cir. 1995) ........................................................ 28 2 3 Heller v. Doe, 509 U.S. 312, 113 S. Ct. 2637, 125 L. Ed. 2d 257 (1993) ........... 23, 37 4 5 Hernandez v. Robles, 855 N.E.2d 1, 7 N.Y.3d 388, 821 N.Y.S.2d 770 (N.Y. 2006) ..... 32, 37 6 7 Hicks v. Miranda, 422 U.S. 332, 95 S. Ct. 2281, 45 L. Ed. 2d 223 (1975) ............... 17, 18 8 High Tech Gays v. Def. Indus. Sec. Clearance Office, 9 895 F.2d 563 (9th Cir. 1990) ....................................................... 5, 20 10 I.N.S. v. Pangilinan, 11 486 U.S. 875, 108 S. Ct. 2210, 100 L. Ed. 2d 882 (1988) ........... 41 12 In re Balas, 13 449 B.R. 567 (Bankr. C.D. Cal. 2011) ......................................... 35 14 In re Cardelucci, 15 285 F.3d 1231 (9th Cir. 2002) ...................................................... 26 16 In re Cervantes-Gonzalez, 22 I. & N. Dec. 560 (BIA 1999) ................................................... 49 17 18 In re Cooper, 592 N.Y.S.2d 797, 187 A.D.2d 128 (N.Y. App. Div. 1993) ........ 18 19 20 In re Dorman, 25 I. & N. Dec. 485 (BIA 2011) ................................................... 48 21 22 In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004)..................................... 21, 22 23 24 In re Levenson, 587 F.3d 925 (9th Cir. E.D.R. 2009) ............................................ 35 25 26 In re Levenson, 560 F.3d 1145 (9th Cir. E.D.R. 2009) .......................................... 35 27 28 viii

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1 In re Marriage Cases, 183 P.3d 384, 76 Cal. Rptr. 683 (Cal. 2008) ................................ 22 2 3 Jackson v. Abercrombie, No. 11-00734, -- F. Supp. 2d --, 2012 WL 3255201 4 (D. Haw. Aug. 8, 2012) ................................................................ 22, 41 5 Jimenez v. Weinberger, 6 417 U.S. 628, S. Ct. 2496, 41 L. Ed. 2d 363 (1974) .................... 23 7 Johnson v. Johnson, 8 385 F.3d 503 (5th Cir. 2004) ....................................................... 20 Johnson v. Robison, 415 U.S. 361, 94 S. Ct. 1160, 39 L. Ed. 2d 389 (1974) ............... 25 10 11 L.A. Mem’l Coliseum Comm’n v. Nat’l Football League, 634 F.2d 1197 (9th Cir. 1980) ...................................................... 46 12 13 Lawrence v. Texas, 539 U.S. 558, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003) ........... passim 14 15 Lofton v. Sec’y of Dep’t of Children & Family Servs., 358 F.3d 804 (11th Cir. 2004) ...................................................... 21 16 17 Lui v. Holder, No. 2:11-cv-01267 (C.D. Cal.) ..................................................... passim 18 19 Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992) ........... 15 20 21 Lydo Enters. v. City of Las Vegas, 745 F.2d 1211 (9th Cir. 1984) ...................................................... 49 22 23 Lyng v. Auto. Workers, 485 U.S. 360, 108 S. Ct. 1184, 99 L. Ed. 2d 380 (1988) ............. 42 24 Mandel v. Bradley, 25 432 U.S. 173, 97 S. Ct. 2238, 53 L. Ed. 2d 199 (1977) ............... 17 26 27 28 ix 9

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1 Marsh v. Chambers, 463 U.S. 783, 103 S. Ct. 3330, 77 L. Ed. 2d 1019 (1983) ........... 31 2 3 Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 96 S. Ct. 2562, 49 L. Ed. 2d 520 (1976) ............... 20 4 5 Massachusetts v. U.S. Dep’t of HHS, 682 F.3d 1 (1st Cir. 2012) ................................................................ 20, 25, 28 6 7 Massachusetts v. U.S. Dep’t of HHS, Nos. 10-2204, 10-2207, & 10-2214 (1st Cir. Sept. 22, 2011) ...... 13 8 Mathews v. Diaz, 9 426 U.S. 67, 96 S. Ct. 1883, 48 L. Ed. 2d 478 (1976) ................. 24 10 McConnell v. FEC, 11 540 U.S. 93, 124 S. Ct. 619, 157 L. Ed. 2d 491 (2003) ............... 15 12 McConnell v. Nooner, 13 547 F.2d 54 (8th Cir. 1976) .......................................................... 18 14 Miller v. Albright, 15 523 U.S. 420, 118 S. Ct. 1428, 140 L. Ed. 2d 575 (1998) ........... 41 16 Morrison v. Sadler, 821 N.E.2d 15 (Ind. Ct. App. 2005) ............................................. 18 17 18 Mullins v. Oregon, 57 F.3d 789 (9th Cir. 1995) .......................................................... 36, 40 19 20 Murphy v. Ramsey, 114 U.S. 15, 5 S. Ct. 747, 29 L. Ed. 47 (1885) ............................ 10 21 22 Nat’l Ctr. for Immigrants Rights, Inc. v. I.N.S., 743 F.2d 1365 (9th Cir. 1984) ...................................................... 44 23 24 Nat’l Gay Task Force v. Bd. of Educ’n of Okla. City, 729 F.2d 1270 (10th Cir. 1984) ................................................... 21 25 26 New State Ice Co. v. Liebmann, 285 U.S. 262, 52 S. Ct. 371, 76 L. Ed. 747 (1932) ...................... 31 27 28 x

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1 Nuclear Info. & Res. Serv. v. Nuclear Reg. Comm’n, 457 F.3d 941 (9th Cir. 2006) ........................................................ 15 2 3 Nuñez-Reyes v. Holder, 602 F.3d 1102 (9th Cir. 2010) ...................................................... 27 4 5 Nuñez-Reyes v. Holder, 646 F.3d 684 (9th Cir. 2011) ........................................................ 27 6 7 Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 129 S. Ct. 2504, 174 L. Ed. 2d 140 (2009).............. 15 8 Oakland Trib., Inc. v. Chron. Publ’g Co., 9 762 F.2d 1374 (9th Cir. 1985) ...................................................... 47, 49 10 Padula v. Webster, 11 822 F.2d 97 (D.C. Cir. 1987) ........................................................ 21 12 Pedersen v. Office of Personnel Mgmt., 13 No. 3:10-cv-1750, -- F. Supp. 2d. --, 2012 WL 3113883 (D. Conn. July 31, 2012) .............................................................. 21 14 15 Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012) ..................................................... 18, 19, 20 16 17 Phila. Police & Fire Ass’n for Handicapped Children, Inc. v. City of Philadelphia, 874 F.2d 156 (3d Cir. 1989) .................................. 43 18 19 Plyler v. Doe, 457 U.S. 202, 102 S. Ct. 2382, 72 L. Ed. 2d 786 (1982) ............ 29 20 21 Price-Cornelison v. Brooks, 524 F.3d 1103 (10th Cir. 2008) ................................................... 20 22 23 Raich v. Gonzalez, 500 F.3d 850 (9th Cir. 2007) ........................................................ 40 24 Regan v. Taxation With Representation of Wash., 25 461 U.S. 540, 103 S. Ct. 1997, 76 L. Ed. 2d 129 (1983) ............. 25, 42 26 27 28 xi

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1 Regan v. Time, Inc., 468 U.S. 641, 104 S. Ct. 3262, 82 L. Ed. 2d 487 (1984)................ 16 2 3 Renne v. Geary, 501 U.S. 312, 111 S. Ct. 2331, 115 L. Ed. 2d 288 (1991) .......... 15 4 5 Reno v. Flores, 507 U.S. 292, 113 S. Ct. 1439, 123 L. Ed. 2d 1 (1993) ............... 39 6 7 Reynolds v. United States, 98 U.S. 145, 25 L. Ed. 244 (1878) ............................................... 8 8 Rinaldi v. Yeager, 9 384 U.S. 305, 86 S. Ct. 1497, 16 L. Ed. 2d 577 (1966) ............... 29 10 Rodriquez de Quijas v. Shearson/Am. Express, Inc., 11 490 U.S. 477, 109 S. Ct. 1917, 104 L. Ed. 2d 526 (1989) ........... 18 12 Romer v. Evans, 13 517 U.S. 620, 116 S. Ct. 1620, 134 L. Ed. 2d 855 (1996) ........... 19, 20 14 Rostker v. Goldberg, 15 453 U.S. 57, 101 S. Ct. 2646, 69 L. Ed. 2d 478 (1981) .................. 16 16 San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 93 S. Ct. 1278, 36 L. Ed. 2d 16 (1973) ..................... 20 17 18 Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982) ............. 36 19 20 Schweiker v. Wilson, 450 U.S. 221, 101 S. Ct. 1074, 67 L. Ed. 2d 186 (1981) ............. 23, 24 21 22 Smelt v. Cnty. of Orange, 374 F. Supp. 2d 861 (C.D. Cal. 2005) .......................................... 21 23 24 Smelt v. Cnty. of Orange, 447 F.3d 673 (9th Cir. 2006) ........................................................ 43 25 26 Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972) ............... 36 27 28 xii

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1 Tanner Motor Livery, Ltd. v. Avis, Inc., 316 F.2d 804 (9th Cir. 1963) ........................................................ 46 2 3 Tenet v. Doe, 544 U.S. 1, 109 S. Ct. 1917, 104 L. Ed. 2d 526 (2005) ............... 18 4 5 Thomasson v. Perry, 80 F.3d 915 (4th Cir. 1996) .......................................................... 21 6 7 Torres-Barragan v. Holder, No. 10-55768 (9th Cir. Feb. 23, 2012) ......................................... 48 8 Torres-Barragan v. Holder, 9 No. 2:09-cv-08564 (C.D. Cal.) ..................................................... passim 10 Tuan Anh Nguyen v. INS, 11 533 U.S. 53, 121 S. Ct. 2053, 150 L. Ed. 2d 115 (2001) ............. 35, 37 12 U.S. Dep’t of Agric. v. Moreno, 13 413 U.S. 528, 93 S. Ct. 2821, 37 L. Ed. 2d 782 (1973) ............... 23, 24 14 U.S. R.R. Ret. Bd. v. Fritz, 15 449 U.S. 166, 101 S. Ct. 453, 66 L. Ed. 2d 368 (1980) ............... 43 16 United States v. Five Gambling Devices, 346 U.S. 441, 74 S. Ct. 190, 98 L. Ed. 179 (1953) ......................... 16 17 18 United States v. Morrison, 529 U.S. 598, 120 S. Ct. 1740, 146 L. Ed. 2d 658 (2000) ........... 47 19 20 United States v. Virginia, 518 U.S. 515, 116 S. Ct. 2264, 135 L. Ed. 2d 735 (1996) .......... 38 21 22 Vance v. Bradley, 440 U.S. 93, 99 S. Ct. 939, 59 L. Ed. 2d 171 (1979) ................... 23, 37 23 24 Vill. of Belle Terre v. Boraas, 416 U.S. 1, 94 S. Ct. 1536, 39 L. Ed. 797 (1974) ........................ 24, 25 25 26 Walters v. Nat’l Ass’n of Radiation Survivors, 473 U.S. 305, 105 S. Ct. 3180, 87 L. Ed. 2d 220 (1985)................ 16 27 28 xiii

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1 Washington v. Glucksberg, 521 U.S. 702, 117 S. Ct. 2258, 138 L. Ed. 2d 772 (1997) ........... passim 2 3 Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005) ....................................... passim 4 5 Witt v. Dep’t of Air Force, 527 F.3d 806 (9th Cir. 2008) ........................................................ 5, 20 6 7 Woodward v. United States, 871 F.2d 1068 (Fed. Cir. 1989) .................................................... 21 8 Zepeda v. I.N.S., 9 753 F.2d 719 (9th Cir. 1983) ........................................................ 44 10 11 12 Regulations 13 8 C.F.R. § 214.2 (1989) .......................................................................... 2 14 15 16 17 18 19 Other Authorities 20 1 French National Assembly, No. 2832: Report Submitted on Behalf of the Mission of Inquiry on the Family and the Rights 21 of Children (Jan. 25, 2006) ........................................................... 33 22 1 William Blackstone, Commentaries on the Laws of England ............. 33 23 24 Adam P. Romero, et al., Census Snapshot (Dec. 2007) ......................... 34 25 Consideration of Deferred Action for Childhood Arrivals Process, USCIS (Sept. 14, 2012) ................................................................ 46 26 27 28 xiv The Family and Medical Leave Act, 60 Fed. Reg. 2,180, 2,190-91 (1995) .............................................................................................. 7 8 C.F.R. § 274a.12 .................................................................................. 46

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1 Council on Families in America, Marriage in America: A Report to the Nation (1995) .......................................................................... 9 2 3 Daphne Lofquist, et al., Housholds and Families: 2010, Census Br. C2010BR-14, tbl. 3 (Apr. 2012) ................................................... 34 4 5 Eugene Gressman, et al., Supreme Court Practice 264 (9th ed. 2007) .. 47 6 Gary J. Gates, Family formation and raising children among same-sex couples, Family Focus on . . . LGBT Families, (Nat’l Council 7 on Fam. Rel.)Winter 2011 ............................................................ 34 8 Gunnar Andersson, et al., The Demographics of Same-Sex Marriages 9 in Norway and Sweden, 43 Demography 79 (2006) .................... 38 10 Institute for American Values, Marriage and the Law: A Statement 11 of Principles (2006) ...................................................................... 33 12 Jim Sanders, California law will allow illegal immigrants to get 13 driver's licenses, Sacramento Bee, Oct. 1, 2012 .......................... 46 14 Joslin v. New Zealand, No. 902/1999 H.R. Comm. 2002, in 2 Report 15 of the Human Rights Comm., U.N. Doc. A/57/40 (2002) .......... 33 16 Letter from Andrew Fois, Ass’t Att’y Gen., to Hon. Charles T. Canady (May 29, 1996) ................................................................ 12 17 18 Letter from Andrew Fois, Ass’t Att’y Gen., to Hon. Henry J. Hyde (May 14, 1996) ............................................................................. 12 19 20 Letter from Andrew Fois, Ass’t Att’y Gen., to Hon. Orrin G. Hatch (July 9, 1996) ................................................................................ 12 21 22 Letter from G.A.O, to Senator Bill Frist 1 (Jan. 23, 2004), GAO-04-353R, Defense of Marriage Act .................................... 8 23 24 Living Arrangements of Children Under 18 Years Old: 1960 to Present, U.S. Census Bureau ........................................................ 34 25 26 N.M. Att’y Gen. Op. No. 11-01, 2011 WL 111243 (Jan. 4, 2011) ........ 27 27 28 xv

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1 Matthijs Kalmijn, et al., Income Dynamics in Couples and the Dissolution of Marriage and Cohabitation, 44 Demography 2 159 (2007) ..................................................................................... 38 3 Re: Recognition in New Jersey of Same-Sex Marriages, Civil Unions, 4 Domestic Partnerships and Other Government-Sanctioned, Same-Sex Relationships Established Pursuant to the Laws of 5 Other States and Foreign Nations, N.J. Att’y Gen. Op. 6 No. 3-2007, 2007 WL 749807 (Feb. 16, 2007) ........................... 27 7 Schalk & Kopf v. Austria, No. 30141/04 E.U. Ct. H. R. 2010 ............... 33 8 9 U.S. Dep’t of State, Visa Bulletin for Sept. 2012 ................................... 2 10 United Nations Convention on the Rights of the Child, art. 7, 28 I.L.M. 1456 (Nov. 20, 1989) ................................................... 36 11 12 William Meezan & Jonathan Rauch, Gay Marriage, Same-Sex Parenting,& America’s Children, 15 Future of Children 13 (Fall 2005) .................................................................................... 30, 37 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 xvi

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1 2

INTRODUCTION This case concerns the constitutionality of Section 3 of the Defense of

3 Marriage Act (“DOMA”), Pub. L. No. 104-199, 110 Stat. 2419 (1996), 1 U.S.C. § 4 7, in the context of certain benefits provided under the Immigration and Nationality 5 Act (“INA”), 8 U.S.C. §§ 1101, et seq. See Compl. for Declaratory & Injunctive 6 Relief ¶¶ 3, 4 (July 12, 2012) (ECF No. 1) (“Compl.”). It is the third such case to 7 challenge DOMA Section 3 in the immigration context in this district in the past 8 two years. In both earlier cases, the district court dismissed the complaints on their 9 merits. See Order, Lui v. Holder, No. 2:11-cv-01267 (C.D. Cal. Sept. 28, 2011) 10 (ECF No. 38) (“Lui Order”) (dismissing both equal protection and substantive due 11 process claims); Order, Torres-Barragan v. Holder, No. 2:09-cv-08564 (C.D. Cal. 12 Apr. 30, 2010) (ECF No. 24) (“Torres-Barragan Order”) (same). 13 In this case, Plaintiffs seek a preliminary injunction. See Notice of Mot. & 14 Mot. for Prel. Inj. (Aug. 23, 2012) (ECF No. 12) (“Mot. for PI”). Intervenor15 Defendant the Bipartisan Legal Advisory Group of the United States House of 16 Representatives (“House”) submits this memorandum in opposition to that motion: 17 Not only do Plaintiffs’ claims lack merit, Plaintiffs cannot demonstrate a sufficient 18 likelihood of injury. 19 20 I. 21

BACKGROUND

Factual Background, as Alleged. Plaintiff Jane DeLeon is a non-U.S. citizen and non-resident alien. Compl. ¶

22 19. She entered the U.S. in 1989 on a non-immigrant visitor’s visa. Id. ¶ 20. At 23 the time she entered, she represented to federal authorities that she was married to 24 Joseph Aranas, even though that was untrue. Id. ¶ 22; Decision, U.S. Citizenship 25 & Imm. Servs. at 3 (Sept. 1, 2011) (“First USCIS Dec.”) (Ex. 2 to Mot. for PI). 26 When Ms. DeLeon entered from the Philippines “on or about June 19, 27 1989,” she was “authorized to remain in the United States for a temporary period, 28 1

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1 not to exceed December 18, 1989.” First USCIS Dec. at 3.1 However, when 2 December 18, 1989, arrived, Ms. DeLeon did not depart. Instead, she remained 3 and “has resided here continuously since that time.” Compl. ¶ 20. In other words, 4 Ms. DeLeon illegally overstayed her visitor’s visa for the next nearly 23 years (and 5 counting). Based on the record before this Court, Ms. DeLeon has been an 6 unlawfully present, undocumented alien during that entire period of time. 7 Ms. DeLeon twice has attempted to obtain legal status. First, in March 8 2001, her U.S. citizen father filed – and USCIS approved – a family-based 9 immigrant petition on her behalf. First USCIS Dec. at 3.2 The father filed under 8 10 U.S.C. § 1153(a)(1) which allocates a certain number of visas each year for 11 unmarried sons and daughters of U.S. citizens. However, because the INA also 12 allocates the total number of family-based immigrant visas available each year, 8 13 U.S.C. § 1151(c), on a per country basis, id. § 1152(a)(2) – and because the 14 preference category under which Ms. DeLeon’s father’s petition was approved is 15 heavily oversubscribed for citizens of the Philippines – Ms. DeLeon is not yet 16 eligible to adjust her status to that of a permanent resident because her priority date 17 (March 19, 2001) has not yet become current.3 18 Second, in March 2006, Promax Systems filed an employment-based 19 immigrant visa petition on Ms. DeLeon’s behalf; that petition also was approved. 20 21
At the time, the maximum period of validity for a visitor’s visa was “not more than one 22 year.” 8 C.F.R. § 214.2(b)(1) (1989). 2 At the time, the responsibilities currently assigned to USCIS were carried out by the 23 Immigration and Naturalization Service (“INS”). The INS ceased to exist in 2003, as a result of 24 the enactment of the Homeland Sec. Act of 2002, Pub. L. No. 106-296, 116 Stat. 2135 (2002).
3 1

25 http://www.travel.state.gov/visa/bulletin/bulletin_5759.html (visas currently available for 26 citizens of the Philippines, who are unmarried sons and daughters of U.S. citizens, with priority
dates on or before November 8, 1994). In due course, Ms. DeLeon’s priority date will become 27 current and she will be eligible to apply to adjust her status to that of a permanent resident.

See U.S. Dep’t of State, Visa Bulletin for Sept. 2012, at 2, available at

28 2

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1 Compl. ¶ 26; First USCIS Dec. at 2. However, Ms. DeLeon was statutorily 2 ineligible to adjust her status to that of a lawful permanent resident because she 3 was not then “in a lawful nonimmigrant status,” 8 U.S.C. § 1255(c)(7), and 4 because she had misrepresented a material fact at the time of her initial entry in 5 1989, see id. § 1182(a)(6)(C)(i); Compl. ¶ 27; First USCIS Dec. at 3. 6 Ms. DeLeon nevertheless applied for adjustment of status in 2007. Compl. ¶ 7 26; First USCIS Dec. at 3. USCIS, predictably, advised her that she appeared to be 8 ineligible because she had misrepresented a material fact at the time of her initial 9 entry in 1989. Compl. ¶ 27; First USCIS Dec. at 3. However, USCIS also advised 10 Ms. DeLeon that she might be eligible for a waiver of such inadmissibility if she 11 could establish that denial of her application for adjustment of status would result 12 in extreme hardship to her U.S. citizen father. Compl. ¶ 28; First USCIS Dec. at 3; 13 see also 8 U.S.C. § 1182(i)(1) (providing Attorney General with discretion to 14 waive inadmissibility in certain cases if alien established that “refusal of admission 15 . . . would result in extreme hardship to . . . [a] parent” of the alien). 16 Ms. DeLeon applied for such a waiver in July 2011, see Compl. ¶ 29; First 17 USCIS Dec. at 3, and, in September 2011, USCIS denied that waiver application 18 on the ground that she failed to establish that denial of her application to adjust 19 would cause extreme hardship to her U.S. citizen father (who apparently resided a 20 significant portion of the time in the Philippines). Id.; Compl. ¶ 30; Decision, U.S. 21 Citizenship & Imm. Servs. at 1 (Nov. 9, 2011) (“Second USCIS Dec.”) (Ex. 1 to 22 Mot. for PI). At the same time, USCIS also denied Ms. DeLeon’s application for 23 adjustment of status. Id.; First USCIS Dec. at 3-4. 24 In the meantime, in August 2008, Ms. DeLeon and Plaintiff Irma Rodriguez 25 (a U.S. citizen) obtained a marriage certificate from the State of California. 26 Second USCIS Dec. at 3 (marriage date Aug. 28, 2008); Compl. ¶¶ 2, 8, 9, 25 27 (marriage date Aug. 22, 2008). As a result, Ms. DeLeon moved on September 27, 28 3

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1 2011, for reconsideration of the denial of her waiver application on the ground that 2 denial of her application to adjust would cause extreme hardship to Ms. Rodriguez. 3 Id. ¶ 32. USCIS denied that motion in November 2011 on the basis of DOMA 4 Section 3. Id. ¶ 37; Second USCIS Dec. at 2. USCIS did not reach the question of 5 whether Ms. DeLeon had established extreme hardship to Ms. Rodriguez, even 6 assuming Section 3 did not otherwise bar reconsideration. Id. 7 II. 8 Procedural Background. Eight months later, Ms. DeLeon, Ms. Rodriguez, and Ms. DeLeon’s

9 biological son filed this lawsuit. They allege – for themselves and purportedly on 10 behalf of a class consisting of “[a]ll members of lawful marriages whom the 11 Department of Homeland Security [DHS], pursuant to § 3 of [DOMA], refuses to 12 recognize as spouses for purposes of conferring lawful status and related benefits 13 under the [INA] . . . ,” Compl. ¶ 14 – that DOMA Section 3, as applied to them 14 (and others similarly situated), violates their Fifth Amendment “equal protection” 15 and “substantive due process” rights by “refusing to recognize their lawful 16 marriages for purposes of conferring family-based immigration waivers and 17 benefits.” Id. ¶¶ 3, 4, 69-70 (equal protection), 71-73 (substantive due process). 18 A. House’s Motion to Dismiss. 19 The House now has moved to dismiss Plaintiffs’ claims for lack of subject 20 matter jurisdiction and failure to state a claim. Plaintiffs lack standing to challenge 21 DOMA Section 3 because they have failed also to challenge a statutory provision 22 that independently bars them from obtaining the relief they seek. That provision is 23 8 U.S.C. § 1182(i)(1), under which Ms. DeLeon seeks a waiver of the denial of her 24 application to adjust. See supra pp. 3-4. Section 1182(i)(1) applies, however, only 25 to a “spouse,” and Adams v. Howerton, 673 F.2d 1036, 1039-41 (9th Cir. 1982), 26 concluded, as a matter of statutory construction, that the INA’s use of the term 27 28 4

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1 “spouse” is limited to an opposite sex spouse. Accordingly, Plaintiffs lack 2 standing to challenge DOMA Section 3. Infra pp. 14-15. 3 With respect to Plaintiffs’ equal protection claim, controlling Supreme Court 4 and Ninth Circuit authority foreclose that claim. See Baker v. Nelson, 409 U.S. 5 810, 93 S. Ct. 37, 34 L. Ed. 2d 65 (1972) (summarily rejecting argument that equal 6 protection requires extension of marriage rights to same-sex couples); Adams, 673 7 F.2d at 1039-41 (limiting immigration benefits to opposite-sex spouses does not 8 violate equal protection – even if state regards couple as married). Infra pp. 16-19. 9 Even if this Court could ignore Baker and Adams (which it may not), 10 Plaintiffs’ equal protection claim still would have to be dismissed because sexual 11 orientation classifications, like DOMA Section 3, are subject to rational basis 12 review, see, e.g., High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 13 563, 574 (9th Cir. 1990); Witt v. Dep’t of the Air Force, 527 F.3d 806, 821 (9th 14 Cir. 2008), and numerous rational bases support DOMA Section 3. Infra pp. 2215 38. Even the Justice Department (“DOJ”), which infamously has abandoned its 16 constitutional responsibility to defend Section 3, admits as much. Infra p.13 n.12. 17 Plaintiffs’ substantive due process claim – that DOMA Section 3 “burden[s] 18 the integrity of their lawful marriage and their most intimate family relationships,” 19 Compl. ¶ 72 – fares no better. First, Plaintiffs have described their asserted liberty 20 interest far too broadly. Under controlling case law, the courts must adopt a 21 narrow definition of the interest at stake, and Plaintiffs’ actual interest here – an 22 interest in obtaining the reopening of Ms. DeLeon’s waiver application – is not 23 even remotely a fundamental liberty interest protected by the substantive due 24 process component of the Fifth Amendment. Second, DOMA Section 3 does not 25 infringe “the integrity of their lawful marriage and their most intimate family 26 relationships.” Compl. ¶ 72. Section 3 neither bars anyone from any conduct nor 27 28 5

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1 bars anyone from forming any familial relationship, including marriage. Even 2 DOJ acknowledges as much. Infra pp. 13 n.12. 3 4 B. Plaintiffs’ Motion for Preliminary Injunction.

Plaintiffs, for their part, have moved for an order preliminarily enjoining the

5 Executive Branch defendants from, among other things, (i) removing or detaining 6 Ms. DeLeon and Mr. Aranas; (ii) denying them employment authorization; (iii) 7 deeming them inadmissible; and (iv) exercising their statutory responsibilities, in 8 these regards and others, against unnamed members of the plaintiff class. See 9 [Proposed] Prel. Inj. at 3-4 (Aug. 23, 2012) (ECF No. 12-1). Because the House 10 now has moved to dismiss, the Court need not reach Plaintiffs’ motion. However, 11 if the Court does reach that motion, it should deny it. 12 Plaintiffs ask this Court to enter a preliminary order that would, on a nation13 wide basis, suspend the operation of DOMA Section 3 in the immigration context 14 (as well as the operation of certain immigration laws themselves as construed by 15 Adams), and substantially impair the Executive Branch’s enforcement of the 16 nation’s immigration laws. Plaintiffs seek this astonishingly broad and far17 reaching relief even though (i) they cannot establish, as Ninth Circuit law requires, 18 a likelihood of success on the merits, infra pp. 14-44; (ii) two courts in this district 19 already have rejected, on the merits, claims that are substantively indistinguishable 20 from the claims Plaintiffs assert here, see Lui Order; Torres-Barragan Order; and 21 (iii) Plaintiffs’ irreparable harm argument is wholly unsupported by any affidavits 22 and consists, in its entirety, of the bald assertion that DOMA Section 3 “relegates 23 plaintiffs DeLeon and Aranas to the status of undocumented aliens, with all the 24 disabilities attendant thereto . . . .” Mot. for PI at 22-23. 25 In fact, DOMA Section 3 causes Plaintiffs none of their asserted harms; 26 rather, those asserted harms are a consequence of Ms. DeLeon’s decision in 1989 27 not to depart the U.S. when her visitor’s visa expired. Moreover, Plaintiffs allege 28 6

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1 no facts, and offer no evidence, suggesting that Ms. DeLeon and/or Mr. Aranas are 2 in any imminent danger of any adverse action. Infra pp. 45-49. 3 III. 4 5 6 7 8 9 10 11 12 13 14 15 16 Section 3 codifies and confirms what Congress always has meant in using the words “marriage” and “spouse.” Even before DOMA, whenever Congress used terms connoting a marital relationship, it meant a traditional male-female couple.4 Indeed, Congress has a long history of defining marital terms for purposes of federal law5 and, at various times, has enacted comprehensive regulations of marriage.6
4

Legal Background. DOMA Section 3 provides that: In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.

See, e.g., Revenue Act of 1921, § 223(b)(2), 42 Stat. 227, 250 (permitting “a husband and

17 wife living together” to file a joint tax return); see also The Family and Medical Leave Act, 60 Fed. 18 proposed definition of “spouse” that would include “same-sex relationships”); Adams v. Howerton, 19 that a person of one sex could be a ‘spouse’ to a person of the same sex for immigration law 20 purposes . . . .”), aff’d, 673 F.2d 1036 (9th Cir. 1982); Dean v. District of Columbia, 653 A.2d 307,
314, 63 USLW 307 (D.C. 1995) (Congress, in enacting D.C. marriage statute, intended “that
5

Reg. 2,180, 2,190-91 (1995) (final rule) (rejecting, as inconsistent with congressional intent,

486 F. Supp. 1119, 1123 (C.D. Cal. 1980) (“Congress, as a matter of federal law, did not intend

21 ‘marriage’ is limited to opposite-sex couples”).
See, e.g., 38 U.S.C. § 101(31) (for purposes of certain veterans’ benefits, “spouse” means “a person of the opposite sex who is a wife or husband”); 26 U.S.C. § 7703(b) (excluding 23 some couples “living apart” from marriage for tax purposes regardless of state-law status); 42 U.S.C. § 416 (detailed definitions of “spouse,” “wife,” “husband,” “widow,” “widower,” and 24 “divorce” for social-security purposes, inevitably varying from state definitions); 5 U.S.C. §§ 8101(6), (11), 8341(a)(1)(A), (a)(2)(A) (federal employee-benefits statutes); 8 U.S.C. § 25 1186a(b)(1) (anti-fraud criteria in immigration law).

22

26

For instance, Congress banned polygamy in U.S. territories. See Morrill Anti-Bigamy Act, ch. 126, § 1, 12 Stat. 501, 501 (1862) (codified as amended at U.S. Rev. Stat. § 5352) 27 (repealed prior to codification in U.S. Code); 150 Cong. Rec. 15318 (2004) (Sen. Inhofe)

6

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1

Congress designed DOMA to apply comprehensively to all manner of

2 federal programs that confer benefits, and impose burdens, on the basis of marital 3 status. According to the Government Accountability Office (“GAO”), as of 2004, 4 there were 1,138 provisions in the U.S. Code “in which marital status is a factor in 5 determining or receiving benefits, rights, and privileges.” Letter from GAO, to 6 Senator Bill Frist 1 (Jan. 23, 2004), GAO-04-353R, Defense of Marriage Act, 7 http://www.gao.gov/new.items/d04353r.pdf. DOMA reaffirms the definition of 8 marriage already reflected in prior statutes, namely, the traditional definition of 9 marriage as between one man and one woman. 10 11 A. DOMA’s Legislative Branch History.

The 104th Congress enacted DOMA in 1996 with overwhelming, bipartisan

12 support. DOMA passed by a vote of 342-67 in the House and 85-14 in the Senate. 13 142 Cong. Rec. 17093-94 (1996) (House vote); id. at 22467 (Senate vote). 14 President Clinton signed DOMA into law on September 21, 1996. 32 Weekly 15 Comp. Pres. Doc. 1891 (Sept. 30, 1996). 16 DOMA was enacted in response to the Hawaii Supreme Court’s opinion in 17 Baehr v. Lewin, 852 P.2d 44, 74 Haw. 530 (Haw. 1993), which held that the denial 18 of a marriage license to a same-sex couple was subject to strict scrutiny under the 19 Hawaii Constitution. H.R. Rep. No. 104-664 at 4-5 (1996) (“House Rep.”). The 20 Hawaii courts “appear[ed] to be on the verge of requiring that State to issue 21 marriage licenses to same-sex couples.” Id. at 2. DOMA was enacted to preserve 22 the federal-law status quo in light of Baehr. Section 2 of DOMA addressed a 23 concern about the Hawaii decision being given preclusive effect in other states. 24 With Section 3, Congress ensured that, no matter what any state might do to 25 26 (“Congress would not admit Utah into the Union unless it abolished polygamy and committed to
the common national definition of marriage as one man and one woman.”); see also Reynolds v. 27 U.S., 98 U.S. 145, 165-67, 25 L. Ed. 244 (1878).

28 8

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1 redefine marriage as a matter of state law, the definition for purposes of federal law 2 would remain, as it always has been, the union of one man and one woman. 3 The legislative history confirms that, even in statutes enacted before DOMA, 4 Congress never intended for the word “marriage” to include same-sex couples. See 5 id. at 10 (“[I]t can be stated with certainty that none of the federal statutes or 6 regulations that use the words ‘marriage’ or ‘spouse’ were thought by even a single 7 Member of Congress to refer to same-sex couples.”); id. at 29 (“Section 3 merely 8 restates the current understanding of what those terms mean for purposes of federal 9 law.”); 142 Cong. Rec. 16969 (1996) (Rep. Canady) (“Section 3 changes nothing; 10 it simply reaffirms existing law.”). In enacting DOMA, Congress was concerned 11 with more than semantics: It intended to ensure that the meaning of existing 12 federal statutes, and the legislative judgments of earlier Congresses, would be 13 respected. See Defense of Marriage Act: Hearing on H.R. 3396 Before the 14 Subcomm. on the Constitution of the H. Comm. on the Judiciary, 104th Cong. 32 15 (1996) (“House Hr’g”) (Rep. Sensenbrenner) (“When all of these benefits were 16 passed by Congress—and some of them decades ago—it was assumed that the 17 benefits would be to the survivors or to the spouses of traditional heterosexual 18 marriages . . . .”). It also intended to protect the ability of each sovereign to define 19 terms such as “marriage” and “spouse” for purposes of its own law. To that end, 20 DOMA Section 2 provided that full faith and credit does not require states to 21 recognize foreign same-sex marriages even if Hawaii or some other state chose to 22 do so; and Section 3 reaffirmed the United States’ authority, as a separate 23 sovereign, to define marriage for purposes of federal law, regardless of how states 24 might choose to redefine it under their own laws. 25 During its deliberations on DOMA, Congress emphasized “[t]he enormous 26 importance of marriage for civilized society.” House Rep. at 13 (quoting Council 27 on Families in America, Marriage in America: A Report to the Nation 10 (1995)). 28 9

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1 The House Report quoted approvingly from Murphy v. Ramsey, 114 U.S. 15, 45, 5 2 S. Ct. 747, 29 L. Ed. 47 (1885), in which the Supreme Court referred to “‘the idea 3 of the family, as consisting in and springing from the union for life of one man and 4 one woman in the holy estate of matrimony; the sure foundation of all that is stable 5 and noble in our civilization.’” Id. at 12.7 6 Congress also recognized that, historically in American law, marriage 7 consisted of the union of one man and one woman.8 This historical definition was 8 by no means a singling out of homosexual relationships. Rather, it identified one 9 type of relationship (traditional marriage) as especially important, and excluded 10 every other kind of relationship from the definition of “marriage.” Congress 11 concluded that such an important institution should not be radically redefined at 12 the federal level. Senator Dorgan expressed the views of many Members of 13 Congress when he stated: “For thousands of years, marriage has been an 14 institution that represents a union between a man and a woman, and I do not 15 support changing the definition of marriage or altering its meaning.” 142 Cong. 16 Rec. at 23186; see also id. at 22452 (Sen. Mikulski) (DOMA “is about reaffirming 17 the basic American tenet of marriage”). 18 Congress also expressed concern that expanding marital benefits to same-sex 19 couples would create fiscal uncertainty and strain in a manner not foreseen by the 20 21
See also 142 Cong. Rec. 16799 (1996) (Rep. Largent); id. at 16970 (Rep. Hutchinson) (marriage “has been the foundation of every human society”); id. at 22442 (Sen. Gramm) 22 (“There is no moment in recorded history when the traditional family was not recognized and sanctioned by a civilized society . . . .”); id. at 22454 (Sen. Burns) (“[M]arriage between one man 23 and one woman is still the single most important social institution.”).
7

24

See House Rep. at 3 (“[T]he uniform and unbroken rule has been that only opposite-sex couples can marry.”); House Hr’g at 1 (statement of Rep. Canady) (“Simply stated, in the history 25 of our country, marriage has never meant anything else.”); 142 Cong. Rec. 16796 (1996) (Rep. 26 McInnis) (“If we look at any definition, whether it is Black’s Law Dictionary, whether it is Webster’s Dictionary, a marriage is defined as [a] union between a man and a woman, and that 27 should be upheld . . . .”).

8

28 10

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1 Congresses that originally enacted benefits tied to marriage. See House Rep. at 18 2 (“legislative response” to same-sex marriage necessary to “preserve scarce 3 government resources”). It desired to avoid a “huge expansion” in marital benefits, 4 142 Cong. Rec. 17072 (1996) (Rep. Sensenbrenner), which “ha[d] not been planned 5 or budgeted for under current law,” id. at 22443 (1996) (Sen. Gramm). Congress 6 was concerned that state recognition of same-sex marriages would “create . . . a 7 whole group of new beneficiaries – no one knows what the number would be – . . . 8 who will be beneficiaries of newly created survivor benefits under Social Security, 9 Federal retirement plans, and military retirement plans,” id., and that these additional 10 costs had not even been calculated, let alone weighed, in the earlier legislative 11 debates that preceded the enactment of those programs, see id. at 22448 (Sen. Byrd) 12 (“[T]hink of the potential cost involved . . . .”). 13 In clarifying a single definition of marriage to govern all federal laws, 14 Congress decided that eligibility for federal benefits should not vary 15 geographically depending on how the several states might choose to define 16 marriage. As Senator Ashcroft stated, a federal definition “is very important, 17 because unless we have a Federal definition of what marriage is, a variety of States 18 around the country could define marriage differently . . . , people in different States 19 would have different eligibility to receive Federal benefits, which would be 20 inappropriate.” Id. at 22459. 21 Congress also explained that marriage is afforded a special legal status 22 because only a man and a woman can beget a child together, and because historical 23 experience has shown that a family consisting of a married father and mother – 24 particularly the child’s own biological mother and father – is an effective social 25 structure for raising children. For example, the House Report states that the reason 26 “society recognizes the institution of marriage and grants married persons preferred 27 28 11

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1 legal status” is that it “has a deep and abiding interest in encouraging responsible 2 procreation and child-rearing.” House Rep. at 12, 13.9 3 4 B. DOMA’s Executive Branch History.

When Congress considered DOMA, it received outside advice that DOMA

5 was constitutional, including thrice from DOJ. DOJ stated, for example, that it 6 “continues to believe that [DOMA] would be sustained as constitutional if 7 challenged in court, and that it does not raise any legal issues that necessitate 8 further comment by the Department. . . . [T]he Supreme Court’s ruling in Romer 9 v. Evans does not affect the Department’s analysis.” Letter from Andrew Fois, 10 Ass’t Att’y Gen., to Hon. Charles T. Canady (May 29, 1996), reprinted in House 11 Rep. at 34; see also Letters from Andrew Fois, Ass’t Att’y Gen., to Hon. Henry J. 12 Hyde (May 14, 1996), reprinted in House Rep. at 33, and to Hon. Orrin G. Hatch 13 (July 9, 1996), reprinted in Defense of Marriage Act: Hearing on S. 1740 Before 14 the S. Comm. on the Judiciary, 104th Cong. 2 (1996) (“Senate Hr’g”).10 15 During the Bush administration, DOJ successfully defended DOMA against 16 several constitutional challenges, prevailing in every case that reached final 17 judgment. See Mem. . . . in Supp. of Mot. of [House] for Leave to Intervene at 3 18 n.1 (Aug. 23, 2012) (ECF No. 19) (identifying cases). And, during the first two 19 20
9

See also 142 Cong. Rec. 22446 (1996) (Sen. Byrd) (“The purpose of this kind of union

21 between human beings of opposite gender is primarily for the establishment of a home atmosphere 22 being children for the fulfillment of their love for one another and for the greater good of the
in which a man and a woman pledge themselves exclusively to one another and who bring into human community at large.”); House Hr’g at 1 (Rep. Canady) (“[Marriage] is inherently and

23 necessarily reserved for unions between one man and one woman. This is because our society 24 recognizes that heterosexual marriage provides the ideal structure within which to beget and raise

children.”); 142 Cong. Rec. 17081 (1996) (Rep. Weldon) (“[M]arriage of a man and woman is the 25 foundation of the family. The marriage relationship provides children with the best environment in which to grow and learn.”).

26

See also House Hr’g at 87-117 (testimony of Professor Hadley Arkes); Senate Hr’g at 56-59 (letter from Professor Michael W. McConnell) (advising that DOMA is constitutional). 27

10

28 12

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1 years of the Obama administration, DOJ continued to defend DOMA (albeit 2 without defending all of Congress’s stated justifications for the law). Id. at 3 n.2. 3 In February 2011, however, DOJ abruptly reversed course and abandoned 4 the defense of DOMA Section 3, effectively conceding in the process that decision 5 to do so was a sharp departure from past precedent and not predicated primarily on 6 constitutional or other legal considerations. See id. at 3-4. Notwithstanding its 7 abandonment of its constitutional duties, DOJ nonetheless repeatedly has affirmed 8 that there is a rational basis for Section 3,11 and that the statue does not violate the 9 substantive due process component of the Fifth Amendment.12 10 11 STANDARD OF REVIEW “[T]he issuance of a preliminary injunction [rest] upon a clear showing of

12 either (1) probable success on the merits and possible irreparable injury, or (2) 13 sufficiently serious questions going to the merits to make them a fair ground for 14 litigation and a balance of hardships tipping decidedly toward the party requesting 15 16
11

See, e.g., Superseding Br. for the U.S. Dep’t of Health & Human Servs. at 46 n.20,

17 Massachusetts v. U.S. Dep’t of HHS, Nos. 10-2204, 10-2207, & 10-2214 (1st Cir. Sept. 22, 18 as the government has previously stated, a reasonable argument for the constitutionality of
2011) (ECF No. 5582082) (“[I]f this Court holds that rational basis is the appropriate standard, DOMA Section 3 can be made under that permissive standard.”); Fed. Defs.’ Br. In Partial Supp.

19 of Pls.’ Mot. for Summ. J. at 19 n.14, Dragovich v. U.S. Dep’t of the Treasury, No. 4:10-cv20 01564 (N.D. Cal. Jan. 1, 2012) (ECF No. 108) (same); Defs.’ Br. in Opp’n to Mots. to Dismiss at
18 n.14, Golinski v. U.S. Office of Pers. Mgmt., No. 3:10-cv-00257 (N.D. Cal. July 1, 2011)
12

21 (ECF No. 145) (same). 22 23 24 25 26 27 28 13
See Defs.’ Mem. . . . in Supp. of Partial Mot. to Dismiss at 8-9 (Sept. 28, 2012) (ECF No. 46-1) (“DOJ’s Mot.”); see also, e.g., Reply Br. for the Office of Pers. Mgmt. at 17-21, Golinski v. U.S. Office of Pers. Mgmt., Nos. 12-15388 & 12-15409 (9th Cir. July 31, 2012) (ECF No. 149); Fed. Defs.’ Reply in Supp. of Their Cross-Mot. for Summ. J. at 9-11, Dragovich v. U.S. Dep’t of the Treasury, No. 4:10-cv-01564 (N.D. Cal. Apr. 12, 2012) (ECF No. 121); Fed. Defs.’ Opp’n to Pls.’ Mot. for Summ. J. . . . at 9-14, Dragovich (N.D. Cal. Feb. 21, 2012) (ECF No. 114); Br. of the United States Regarding the Constitutionality of Section 3 of DOMA at 5 n.3, Cozen O’Connor v. Tobits, No. 2:11-cv-00045 (E.D. Pa. Dec. 30, 2011) (ECF No. 97); Resp. of Defs. United States . . . to [House’s] Cross-Mot. for Summ. J. at 3-4 n.4, Bishop v. Holder, No. 4:04-cv-00848 (N.D. Okla. Nov. 18, 2011) (ECF No. 225).

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1 the preliminary relief.” Aleknagik Natives, Ltd. v. Andrus, 648 F.2d 496, 502 (9th 2 Cir. 1980) (emphasis added). 3 4 ARGUMENT As suggested above and as explained below, Plaintiffs cannot make a “clear

5 showing” of either likely success on the merits or a sufficient likelihood of harm. 6 Aleknagik Natives, 648 F.2d at 502. Plaintiffs cannot establish a likelihood of 7 success on the merits because they lack standing to challenge DOMA Section 3 8 and, even if they did not, their claims – both equal protection and substantive due 9 process – lack merit. Plaintiffs cannot make a clear showing of likelihood of harm 10 because they allege no facts, and certainly offer no evidence, suggesting that Ms. 11 DeLeon and/or Mr. Aranas are in any imminent danger of any adverse action. 12 I. Likelihood of Success on the Merits. 13 14 A. Plaintiffs Lack Standing to Challenge DOMA Section 3.

Plaintiffs lack standing to challenge DOMA Section 3 because Ms. DeLeon

15 is not a “spouse” within the meaning of the statute under which she seeks a waiver 16 of the denial of her application to adjust her status, see supra pp. 3-4, namely: 17 Section 212(i)(1) of the INA, 8 U.S.C. § 1182(i)(1). 18 In Adams, 673 F.2d at 1039-41, the Ninth Circuit considered the meaning of 19 the same term – “spouse” – from the same statute – the INA. The Adams Court 20 considered that term in the context of the INA’s definition of “immediate 21 relatives,” INA § 201(b), 8 U.S.C. § 1151(b), which definition identifies a 22 “spouse” as such an “immediate relative[].” The Adams Court considered the INA 23 as a whole and its legislative history, concluding that “spouse” refers only to 24 opposite-sex spouses. See 673 F.2d at 1039-40 (“It is clear to us that Congress did 25 not intend the mere validity of a marriage under state law to be controlling.”). 26 For the same reasons that INA Section 201(b), 8 U.S.C. § 1151(b), did not 27 refer to same-sex spouses in using the term “spouse,” INA Section 212(i)(1), 8 28 14

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1 U.S.C. § 1182(i)(1), does not do so. See, e.g., Adams, 673 F.2d at 1040 (“As our 2 duty is to ascertain and apply the intent of Congress, we strive to interpret language 3 in one section of a statute consistently with the language of other sections and with 4 the purposes of the entire statute considered as a whole.”). As noted supra pp. 75 12, Congress always has used the term “spouse” to refer only to traditional, 6 opposite-sex spouses, and certainly that was the case at the enactment of INA 7 Section 212(i)(1), 8 U.S.C. § 1182(i)(1) in 1961. 8 Because INA Section 212(i)(1), 8 U.S.C. § 1182(i)(1) – which Plaintiffs 9 have not challenged – independently forecloses their claims for relief, Plaintiffs’ 10 alleged injuries would not be redressed even if they prevailed on their DOMA 11 Section 3 arguments. Accordingly, they lack standing to challenge Section 3.13 12 B. DOMA Section 3 Must Be Presumed to Be Constitutional. 13 Duly enacted federal laws are entitled to a strong presumption of 14 constitutionality. “[J]udging the constitutionality of an Act of Congress is the 15 gravest and most delicate duty that th[e] Court[s] [are] called on to perform.” Nw. 16 Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 204, 129 S. Ct. 2504, 174 17 L. Ed. 2d 140 (2009) (quotation marks omitted). “The Congress is a coequal branch 18 of government whose Members take the same oath we do to uphold the Constitution 19 of the United States.” Id. at 205 (quotation marks omitted). Because “[a] ruling of 20 21 22 23 24 25 26 27 28 15
See, e.g., McConnell v. FEC, 540 U.S. 93, 229, 124 S. Ct. 619, 157 L. Ed. 2d 491 (2003) (challenge to constitutionality of particular statutory provision fails where other, unchallenged statutory provisions independently bar plaintiffs from requested relief); Renne v. Geary, 501 U.S. 312, 319, 111 S. Ct. 2331, 115 L. Ed. 2d 288 (1991) (noting, in First Amendment challenge to local government’s removal of party endorsements from materials submitted by political candidates for distribution by county, that there was “reason to doubt . . . that the injury alleged by these voters can be redressed by a declaration of [the ordinance]’s invalidity or an injunction against its enforcement” because a separate and unchallenged state statute likely also required the redaction); Nuclear Info. & Res. Serv. v. Nuclear Reg. Comm’n, 457 F.3d 941, 955 (9th Cir. 2006). See generally Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992).
13

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1 unconstitutionality frustrates the intent of the elected representatives of the people,” 2 Regan v. Time, Inc., 468 U.S. 641, 652, 104 S. Ct. 3262, 82 L. Ed. 2d 487 (1984), 3 the “Court[s] do[] and should accord a strong presumption of constitutionality to 4 Acts of Congress. This is not a mere polite gesture. It is a deference due to 5 deliberate judgment by constitutional majorities of the two Houses of Congress that 6 an Act is [constitutional].” U.S. v. Five Gambling Devices, 346 U.S. 441, 449, 74 S. 7 Ct. 190, 98 L. Ed. 179 (1953) (plurality). This deference “is certainly appropriate 8 when, as here, Congress specifically considered the question of the Act’s 9 constitutionality,” Rostker v. Goldberg, 453 U.S. 57, 64, 101 S. Ct. 2646, 69 L. Ed. 10 2d 478 (1981); see supra p. 12 & n.10, and “must be afforded even though the claim 11 is that a statute” violates the Fifth Amendment, Walters v. Nat’l Ass’n of Radiation 12 Survivors, 473 U.S. 305, 319-20, 105 S. Ct. 3180, 87 L. Ed. 2d 220 (1985). 13 14 15 16 C. DOMA Section 3 Satisfies Equal Protection Principles. 1. Binding Precedent Foreclose Plaintiffs’ Equal Protection Claim.

This Court has no occasion to undertake the “grave and delicate” task of

17 considering the constitutionality of an Act of Congress because binding Supreme 18 Court and Ninth Circuit precedent forecloses an equal protection challenge to 19 DOMA Section 3. No matter how a court might view those provisions as a matter 20 of first impression, the Supreme Court and Ninth Circuit already squarely have 21 held that defining marriage as between one man and one woman comports with 22 equal protection. Only those Courts can reconsider those determinations. 23 24 a. Binding Supreme Court Authority: Baker v. Nelson.

In Baker, two men challenged a state law defining marriage as a “union

25 between persons of the opposite sex,” and the denial of a marriage license “on the 26 sole ground that [they] were of the same sex.” Baker v. Nelson, 191 N.W.2d 185, 27 185-86, 291 Minn. 310 (Minn. 1971). The state Supreme Court rejected their 28 16

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1 constitutional claims “that the right to marry without regard to the sex of the 2 parties is a fundamental right . . . and that restricting marriage to only couples of 3 the opposite sex is irrational and invidiously discriminatory.” Id. at 186. 4 The two men appealed to the Supreme Court under former 28 U.S.C. § 5 1257(2) (repealed in 1988), the question of “[w]hether appellee’s refusal, pursuant 6 to Minnesota marriage statutes, to sanctify appellants’ marriage because both are 7 of the male sex violates their rights under the equal protection clause of the 8 Fourteenth Amendment.” Jurisdictional Statement at 3, Baker v. Nelson, No. 719 1027 (1972) (attached as Ex. A). In addition to arguing that Minnesota had 10 engaged in unconstitutional sex discrimination, id. at 16-17, the men argued that 11 “there is no justification in law for the discrimination against homosexuals,” and 12 that they were “similarly situated” to “childless heterosexual couples” and 13 therefore entitled to the same “benefits awarded by law,” id. at 10. The Court 14 rejected both arguments, and summarily and unanimously dismissed the appeal for 15 want of a substantial federal question. Baker, 409 U.S. at 810. 16 Such a disposition is a decision on the merits. Mandel v. Bradley, 432 U.S. 17 173, 176, 97 S. Ct. 2238, 53 L. Ed. 2d 199 (1977) (“[L]ower courts are bound by 18 summary actions on the merits by this Court.”); Hicks v. Miranda, 422 U.S. 332, 19 344-45, 95 S. Ct. 2281, 45 L. Ed. 2d 223 (1975). While the Court’s certiorari 20 jurisdiction is discretionary, its appellate jurisdiction under § 1257(2) was 21 mandatory. Thus “the Supreme Court had no discretion to refuse to adjudicate 22 [Baker] on its merits,” Wilson v. Ake, 354 F. Supp. 2d 1298, 1304 (M.D. Fla. 23 2005), and its “dismissal[] for want of a substantial federal question without doubt 24 reject[ed] the specific challenges presented in the statement of jurisdiction,” 25 Mandel, 432 U.S. at 176 – i.e., the contention that prohibiting same-sex marriages 26 violates equal protection. 27 28 17

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1

Because Baker holds that a state may define marriage as the union of one

2 man and one woman without violating the Fourteenth Amendment’s equal 3 protection clause, and because “[the Supreme] Court’s approach to Fifth 4 Amendment Equal Protection claims has always been precisely the same as to 5 equal protection claims under the Fourteenth Amendment,” Adarand Constructors, 6 Inc. v. Peña, 515 U.S. 200, 217, 115 S. Ct. 2097, 132 L. Ed. 2d 158 (1995) 7 (quotation marks omitted), it necessarily follows that DOMA Section 3 does not 8 violate the equal protection component of the Fifth Amendment by defining 9 marriage in the manner that Baker found constitutional.14 10 “[L]ower courts are bound by summary decisions by [the Supreme] Court 11 until such time as the [Supreme] Court informs them they are not,” Hicks, 422 U.S. 12 at 344-45 (quotation marks and parentheses omitted),15 and “[t]he Supreme Court 13 has not explicitly or implicitly overturned its [Baker] holding,” Wilson, 354 F. 14 15 16 17 18 19 20 21 22 23 24 25
See also McConnell v. Nooner, 547 F.2d 54, 56 (8th Cir. 1976) (Baker requires holding of no constitutional violation where federal government denied marital benefits to samesex couple that obtained marriage license; “Supreme Court’s dismissal of the [Baker] appeal for want of a substantial federal question constitutes an adjudication of the merits which is binding on the lower federal courts.”); Adams, 673 F.2d at 1039 n.2 (acknowledging Baker and binding nature of summary dismissal); Wilson, 354 F. Supp. 2d at 1305 (Baker “binding precedent” with “dispositive effect” requiring dismissal of equal protection challenge to DOMA); Adams, 486 F. Supp. at 1124 (Baker requires holding of no equal protection violation where federal government denied benefits to same-sex couple that obtained marriage license); Andersen v. King Cnty., 138 P.3d 963, 999 & n.19, 158 Wash. 2d 1 (Wash. 2006) (Baker binding in challenge to traditional marriage provision); Morrison v. Sadler, 821 N.E.2d 15, 19-20 (Ind. Ct. App. 2005) (same); In re Cooper, 592 N.Y.S.2d 797, 800, 187 A.D.2d 128 (N.Y. App. Div. 1993) (same). Cf. Perry v. Brown, 671 F.3d 1052, 1082. n.14 (9th Cir. 2012) (distinguishing Baker from situation in which “the people of a state . . . by plebiscite strip a group of a right or benefit . . . that they had previously enjoyed on terms of equality with all others in the state.”); id. at 1076, 1082, 1087, 1090, 1096 (limiting Perry to its unique circumstances). The federal government, of course, never has recognized same-sex marriages and, instead, has acted to preserve the status quo.
15 14

See also Tenet v. Doe, 544 U.S. 1, 109 S. Ct. 1917, 104 L. Ed. 2d 526 (2005) (Supreme Court precedent binds lower courts until Court overrules own decision); Rodriquez de 26 Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484, 109 S. Ct. 1917, 104 L. Ed. 2d 526 27 (1989).

28 18

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1 Supp. 2d at 1305. Accordingly, this Court is obligated to follow Baker and dismiss 2 Plaintiffs’ equal protection challenge to DOMA Section 3.16 3 4 b. Binding Ninth Circuit Authority: Adams v. Howerton.

Adams held that the word “spouse” in INA Section 201(b), 8 U.S.C. §

5 1151(b), meant a person of the opposite sex, and that the INA’s restriction of that 6 term to opposite-sex spouses does not violate equal protection. 673 F.2d at 1040. 7 “Congress’s decision to confer spouse status under section 201(b) only upon the 8 parties to heterosexual marriages has a rational basis and therefore comports with 9 the due process clause and its equal protection requirements.” Id. at 1042.17 10 DOMA Section 3 is constitutional under Adams because it uses the same 11 definition of spouse and marriage upheld by the Ninth Circuit in that case. Given 12 the squarely controlling nature of Adams – already acknowledged by two courts in 13 this district, see Lui Order at 3-4 & n.5; Torres-Barragan Order at 2 – Plaintiffs’ 14 failure to address Adams – save in a single footnote, see Mot. for PI at 16 n.17, is 15 telling. Plaintiffs’ suggestion that this Court wish away controlling precedent is, at 16 best, an invitation to error. 17 18 19 20 21 22 23 24 25 26
The relevant questions are not whether a majority of current Justices would agree with Baker, or whether later cases suggest a different trend in the Court’s jurisprudence – rather they are whether Baker is on point, which it is, and whether it has been overturned by the Court, which it has not. Moreover, neither Romer v. Evans, 517 U.S. 620, 116 S. Ct. 1620, 134 L. Ed. 2d 855 (1996), nor Lawrence v. Texas, 539 U.S. 558, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003), has undermined Baker. In Lawrence – decided after Romer – the Supreme Court expressly declined to reach the question “whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” 539 U.S. at 578; see also Witt, 527 F.3d at 821 (Lawrence “declined to address equal protection”). Indeed, Justice O’Connor stated that statutes “preserving the traditional institution of marriage” remain valid. Lawrence, 539 U.S. at 585 (O’Connor, J., concurring). It could not be clearer that Lawrence left Baker unimpaired.
17 16

Adams is not limited by Perry which, by its own terms dealt only with withdrawals of previously-offered marriage rights. See supra p. 18 n.14. That is not what the statute in Adams did, and it certainly is not what DOMA Section 3 does here. 27

28 19

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1 2

2.

Rational Basis Review Applies to DOMA Section 3.

Even if Section 3’s constitutionality under equal protection principles was an

3 open question (which it is not), the statute would pass constitutional muster 4 because rational basis review applies and, as explained below, is easily satisfied. 5 The recognized suspect classes are “race, alienage, [and] national origin.” 6 City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 440, 105 S. Ct. 3249, 7 87 L. Ed. 2d 313 (1985). Classifications based on sex or illegitimacy are quasi8 suspect. Id. at 440-41. The Supreme Court has rejected many other proposed 9 suspect and quasi-suspect classes, such as (i) mental retardation, id. at 442-47; 10 (ii) age, Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 96 S. Ct. 2562, 49 L. Ed. 2d 11 520 (1976); and (iii) poverty, San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 12 1, 93 S. Ct. 1278, 36 L. Ed. 2d 16 (1973). 13 The Supreme Court has not expanded the list since 1973, see Frontiero v. 14 Richardson, 411 U.S. 677, 93 S. Ct. 1764, 36 L. Ed. 2d 583 (1973) (sex), and, 15 since then, no federal court has added to the list of suspect or quasi-suspect classes 16 without being reversed by a higher court. And “the Supreme Court has never ruled 17 that sexual orientation is a suspect classification for equal protection purposes.” 18 Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 866 (8th Cir. 2006). On the 19 contrary, the Court applied rational basis review to a sexual orientation 20 classification in Romer, 517 U.S. 620. Eleven federal circuits, including the Ninth, 21 have held that homosexuals are not a suspect class.18 22
18

23 Lawrence); High Tech Gays, 895 F.2d at 574 (“[H]omosexuals do not constitute a suspect or 24 quasi-suspect class . . . .”); Perry, 671 F.3d at 1082, 1086-90 (applying rational basis review);

See Witt, 527 F.3d at 821 (reaffirming applicability of rational basis review post-

see also Massachusetts v. U.S. Dep’t of HHS, 682 F.3d 1, 9 (1st Cir. 2012) (declining to treat 25 homosexuals as suspect or quasi-suspect class), cert. pets. pending, Nos. 12-13, 12-15, & 12-97; Davis v. Prison Health Servs., 679 F.3d 433, 438 (6th Cir. 2012); Cook v. Gates, 528 F.3d 42, 26 61-62 (1st Cir. 2008), cert. denied sub nom. Pietrangelo v. Gates, 129 S. Ct. 2763, 174 L. Ed. 2d 284 (2009); Price-Cornelison v. Brooks, 524 F.3d 1103, 1113 (10th Cir. 2008); Citizens for 27 Equal Prot., 455 F.3d at 866 (8th Cir.); Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004);

28 20

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1

For this reason, the class of same-sex married couples affected by a

2 governmental definition of marriage as between a man and a woman does not 3 comprise a suspect or quasi-suspect class, as four federal courts already have held. 4 See Citizens for Equal Prot., 455 F.3d at 866-67; Wilson, 354 F. Supp. 2d at 13075 08; Smelt v. Cnty. of Orange, 374 F. Supp. 2d 861, 874-75 (C.D. Cal. 2005); In re 6 Kandu, 315 B.R. 123, 144 (Bankr. W.D. Wash. 2004).19 This unanimous view of 7 the courts of appeals is a thoroughly sound one. Whether or not sexual orientation 8 classifications might someday be recognized as quasi-suspect, they are not today, 9 and cannot be in this Court unless and until the en banc Ninth Circuit or the 10 Supreme Court chooses to revisit the issue.20 Indeed, even DOJ acknowledges that 11 Ninth Circuit precedent requires application of rational basis scrutiny. See, e.g., 12 13 Lofton v. Sec’y of Dep’t of Children & Fam. Servs., 358 F.3d 804, 818 & n.16 (11th Cir. 2004), 14 15 16 17 18
cert. denied, 543 U.S. 1081, 125 S. Ct. 869, 160 L. Ed. 2d 825 (2005); Thomasson v. Perry, 80 F.3d 915, 927-28 (4th Cir. 1996); Ben-Shalom v. Marsh, 881 F.2d 454, 464 (7th Cir. 1989); Woodward v. U.S., 871 F.2d 1068, 1076 (Fed. Cir. 1989); Padula v. Webster, 822 F.2d 97, 10304 (D.C. Cir. 1987); Nat’l Gay Task Force v. Bd. of Educ’n of Okla. City, 729 F.2d 1270, 1273 (10th Cir. 1984), aff’d by an equally divided ct., 470 U.S. 903, 105 S. Ct. 1858, 84 L. Ed. 2d 776 (1985) (per curiam). The only circuit courts that have not specifically addressed this question are the Second and Third, although the Second Circuit applied rational basis review to a sexual orientation classification where the plaintiff did not seek application of heightened scrutiny. See Able v. U.S., 155 F.3d 628, 632 (2d Cir. 1998).
19

19 Mgmt., 824 F. Supp. 2d 968 (N.D. Cal. 2012) (although holding that DOMA Section 3 violates 20 equal protection principles based on application of heightened scrutiny, reaching that result only
by setting aside Baker and purporting to overrule Adams), appeals pending, Nos. 12-15388, 12596938; cf. Pedersen v. Office of Personnel Mgmt., No. 3:10-cv-01750, -- F. Supp. 2d. --, 2012

Only one Article III court has held to the contrary: See Golinski v. U.S. Office of Pers.

21 15409 (9th Cir.), pet. for cert. before j. pending, No. 12-16 (S. Ct. July 3, 2012), 2012 WL 22 WL 3113883, at *35 (D. Conn. July 31, 2012) (concluding, in dicta, that heightened scrutiny
would apply), appeals pending, Nos. 12-3273, 12-3872 (2d Cir.), pets. for cert. before j. pending,

23 No. 12-231 (S. Ct. Aug. 22, 2012), 2012 WL 3613467, No. 12-302 (S. Ct. Sept. 11, 2012), 2012 24 WL 3991479.
20

25 because, they say, the law may change. See, e.g., Mot. for PI at 18 n.20 (“Though Judge 26 Canby’s view has yet to attain the status of binding precedent in the Ninth Circuit, . . . it soon
will.”). If ever there was a recipe for fomenting disrespect for the rule of law and those who 27 interpret it, Plaintiffs have provided it.

Plaintiffs argue that this Court should ignore High Tech Gays, as reaffirmed by Witt,

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1 [DOJ]’s Br. in Partial Supp. of Pls.’ Mot. for Summ. J. at 2, Dragovich v. U.S 2 Dep’t of the Treasury, No. 4:10-cv-01564 (N.D. Cal. Jan. 19, 2012) (ECF No. 108) 3 (High Tech Gays is “binding authority”). 4 a. DOMA Section 3 Does Not Classify on the Basis of 5 Gender. 6 Plaintiffs suggest, in passing, that DOMA Section 3 also discriminates on 7 the basis of gender. Compl. ¶ 54, 70; Mot. for PI at 4, 17. In fact, however, it does 8 not. Each gender – male and female – is treated the same under Section 3. No 9 Article III court has held otherwise, and this Court has squarely rejected the 10 argument. See Lui Order at 3 (“Plaintiffs have failed to assert any facts to suggest 11 the Defendants discriminated against them on the basis of their sex, as opposed to 12 their sexual orientation.”); Torres-Barragan Order at 3 (“Defendants denied the I13 130 Petition not for Plaintiffs’ sex, but because of their sexual orientation.”).21 14 Even DOJ agrees. See DOJ Mot. at 10 n.8. 15 16 3. DOMA Section 3 Satisfies Rational Basis Review. Rational basis review “is the most relaxed and tolerant form of judicial

17 scrutiny under the Equal Protection Clause.” City of Dallas v. Stanglin, 490 U.S. 19, 18 26, 109 S. Ct. 1591, 104 L. Ed. 2d 18 (1989). Under such review, a statute receives 19 “a strong presumption of validity” and must be upheld “if there is any reasonably 20 conceivable state of facts that could provide a rational basis for the classification.” 21 FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313-14, 113 S. Ct. 2096, 124 L. Ed. 22 23 24 25 26 27 28 22
See also Jackson v. Abercrombie, No. 1:11-cv-00734, -- F. Supp. 2d --, 2012 WL 3255201, at *27 (D. Haw. Aug. 8, 2012) (“opposite-sex definition of marriage does not constitute gender discrimination”), appeal docketed, No. 12-16998 (9th Cir. Sept. 10, 2012); In re Kandu, 315 B.R. at 143 (same); In re Marriage Cases, 183 P.3d 384, 401, 76 Cal. Rptr. 3d 683 (Cal. 2008) (“[W]e do not agree with the claim . . . that the applicable statutes properly should be viewed as an instance of discrimination on the basis of the suspect characteristic of sex or gender.”); Conaway v. Deane, 932 A.2d 571, 598, 401 Md. 219 (Md. 2007) (state “marriage statute does not discriminate on the basis of sex”); Andersen, 138 P.3d at 969 (same).
21

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1 2d 211 (1993). “[T]hose challenging the legislative judgment must convince the 2 court that the legislative facts on which the classification is apparently based could 3 not reasonably be conceived to be true by the governmental decision maker.” 4 Vance v. Bradley, 440 U.S. 93, 111, 99 S. Ct. 939, 59 L. Ed. 2d 171(1979). The 5 government “has no obligation to produce evidence to sustain the rationality of a 6 statutory classification,” and “courts are compelled under rational-basis review to 7 accept a legislature’s generalizations even when there is an imperfect fit between 8 means and ends.” Heller v. Doe, 509 U.S. 312, 320, 321, 113 S. Ct. 2637, 125 L. 9 Ed. 2d 257 (1993). “[A] legislative choice is not subject to courtroom fact-finding 10 and may be based on rational speculation unsupported by evidence or empirical 11 data.” Beach Commc’ns, 508 U.S. at 315. Indeed, “it is entirely irrelevant for 12 constitutional purposes whether the conceived reason for the challenged distinction 13 actually motivated the legislature.” Id. “[T]he burden is on the one attacking the 14 legislative arrangement to negative every conceivable basis which might support it, 15 whether or not that basis has a foundation in the record.” Heller, 509 U.S. at 32016 21 (quotation marks, brackets, and citations omitted) (emphasis added). 17 Furthermore, courts may not “substitute [their] personal notions of good public 18 policy for those of Congress.” Schweiker v. Wilson, 450 U.S. 221, 234, 101 S. Ct. 19 1074, 67 L. Ed. 2d 186 (1981). 20 So strong is this presumption of validity that only once (to our knowledge) 21 has the Supreme Court struck down a federal statute an equal protection grounds. 22 See U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528, 93 S. Ct. 2821, 37 L. Ed. 2d 782 23 (1973).22 That striking fact is a direct product of the deferential nature of rational 24
Cf. Jimenez v. Weinberger, 417 U.S. 628, 94 S. Ct. 2496, 41 L. Ed. 2d 363 (1974) (finding unconstitutional under any standard a classification based on illegitimacy, which the 26 Court was then in the process of recognizing as quasi-suspect). The lone exception of Moreno is readily distinguishable. The classification there could not further the interests identified by the 27 government because the vast majority of individuals who it excluded could easily rearrange their

25

22

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1 basis review which makes it extraordinarily difficult for a federal court to conclude 2 that a law passed by Congress, and signed by the President, is wholly irrational. 3 This deferential standard is at its zenith when it comes to statutory 4 definitions and other line-drawing exercises (like DOMA Section 3). The Supreme 5 Court has recognized a broad category of matters in which “Congress had to draw 6 the line somewhere,” Beach Commc’ns, 508 U.S. at 316, and which “inevitably 7 require[] that some persons who have an almost equally strong claim to favored 8 treatment be placed on different sides of the line.” Mathews v. Diaz, 426 U.S. 67, 9 83, 96 S. Ct. 1883, 48 L. Ed. 2d 478 (1976); see Schweiker, 450 U.S. at 238 10 (prescribing extra deference for statutory distinctions that “inevitably involve[] the 11 kind of line-drawing that will leave some comparably needy person outside the 12 favored circle”) (footnote omitted). In such cases, Congress’s decision where to 13 draw the line is “virtually unreviewable.” Beach Commc’ns, 508 U.S. at 316. 14 Governmental definitions of who or what constitutes a family entail 15 precisely this kind of line-drawing exercise. In Village of Belle Terre v. Boraas, 16 416 U.S. 1, 8, 94 S. Ct. 1536, 39 L. Ed. 797 (1974), for example, the Supreme 17 Court upheld on rational basis review a zoning regulation defining unmarried 18 couples as “families” permitted to live together, but prohibiting cohabitation by 19 larger groups. The Court rejected the argument “that if two unmarried people can 20 constitute a ‘family,’ there is no reason why three or four may not,” noting that 21 “every line drawn by a legislature leaves some out that might well have been 22 included.” Id. In such cases, “the decision of the legislature must be accepted 23 unless we can say that it is very wide of any reasonable mark.” Id. at n.5 24 (quotation omitted). Thus, DOMA Section 3 can be struck down only if the line it 25 draws between a relationship between one man/one woman relationships and all 26
affairs to become eligible, while the neediest people would not be able to do so. See Moreno, 27 413 U.S. at 538. There are no analogous difficulties with DOMA Section 3.

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1 others – a line virtually every society everywhere has drawn for virtually all of 2 recorded history – is “very wide of any reasonable mark.” Id. 3 A classification is rational if “the inclusion of one group promotes a 4 legitimate governmental purpose, and the addition of other groups would not.” 5 Johnson v. Robison, 415 U.S. 361, 383, 94 S. Ct. 1160, 39 L. Ed. 2d 389 (1974). 6 The question, therefore, is not whether the denial of benefits to relationships other 7 than opposite-sex couples serves a government interest when considered in a 8 vacuum (nor, as Plaintiffs seem to assume, whether DOMA Section 3 by itself will 9 encourage opposite-sex couples to marry or have children, Mot. for PI at 10 & 10 n.10). Rather, the issue is whether there is a rational reason for extending benefits 11 to opposite-sex couples that does not apply in the same way, or to the same degree, 12 to same-sex couples. If Congress could not offer a benefit to one class, but not to 13 other classes, unless the denial itself conferred some additional benefit on the first 14 class, then a host of government benefits would have to either extended to virtually 15 everyone or eliminated.23 16 17 18 DOMA Section 3 is supported by a host of rational bases, as we now show. a. Uniquely Federal Interests.

In defining marriage for federal law purposes, Congress was motivated by

19 several interests peculiar to the federal government. See generally Massachusetts, 20 682 F.3d at 12 (“Congress surely has an interest in who counts as married. The 21 statutes and programs that [DOMA] governs are federal regimes . . . .”). 22 23 24
For instance, in Regan v. Taxation With Representation of Wash., 461 U.S. 540, 55051, 103 S. Ct. 1997, 76 L. Ed. 2d 129 (1983), the Supreme Court held that it was “not irrational 25 for Congress to decide that, even though it will not subsidize substantial lobbying by charities 26 generally, it will subsidize lobbying by veterans’ organizations,” despite the obvious fact that offering a tax benefit to other charities would have little if any effect on the benefit to veterans’ groups. The same could be said of most other government benefits. 27
23

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1

i. Maintaining a Uniform Federal Definition of Marriage. Congress has

2 “legitimate interests in efficiency, fairness, predictability, and uniformity” in 3 federal programs, In re Cardelucci, 285 F.3d 1231, 1236 (9th Cir. 2002), and 4 DOMA Section 3 manifestly serves the federal interest in uniform eligibility for 5 federal benefits – that is, in ensuring that similarly-situated couples will be eligible 6 for the same federal marital status regardless of the state in which they live.24 7 The Hawaii Supreme Court’s Baehr decision presented Congress with three 8 choices with respect to the substantive eligibility criteria for federal marital 9 benefits. Congress could have (a) adopted the approach of the majority of the 10 states and limited marriage to opposite-sex couples for purposes of federal law; (b) 11 incorporated a patchwork of state rules into federal law, meaning that federal 12 benefits for same-sex couples would depend on the varying laws of the individual 13 states; or (c) recognized same-sex marriage nationwide for federal purposes. Any 14 of these choices would have been rational – including (a), the one Congress chose. 15 Congress rationally could, and did, reject option (c), which would have 16 required Congress to flout the approach of every state in the country at the time 17 DOMA was enacted, and the approach of the vast majority of states today. And 18 plainly, Congress rationally could conclude that a uniform nationwide definition 19 was desirable, and thus reject option (b) (Plaintiffs’ preferred approach). It was 20 more than rational for Congress to avoid treating same-sex couples differently for 21 purposes of federal law on the basis of their states of residence. Moreover, given 22 the varying approaches to same-sex marriage taken by the states, it was rational for 23 24
See, e.g., 142 Cong. Rec. 10468 (1996) (Sen. Nickles) (DOMA “will eliminate legal uncertainty concerning Federal benefits”); id. at 22459 (1996) (Sen. Ashcroft) (finding it “very 25 important” to prevent “people in different States [from having] different eligibility to receive 26 Federal benefits”); see also 150 Cong. Rec. 15318 (2004) (Sen. Inhofe) (the issue “should be handled on a Federal level [because] people constantly travel and relocate across State lines 27 throughout the Nation”).
24

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1 Congress to avoid the confusion that would reign when same-sex couples marry in 2 a state or country that permits it, but then reside in a state that does not recognize 3 such marriages.25 The federal government would have been forced either to 4 recognize such marriages (in conflict with the laws of the couple’s state of 5 residence), or disregard a previously federally-recognized marriage if the couple 6 moved from the state where the marriage took place to a non-recognition state. 7 Once it became clear that some states might recognize same-sex marriages, 8 Congress had to choose between uniformity in either (i) the substantive eligibility 9 criteria for federal marital benefits, or (ii) the procedural practice of deferring to 10 state-law marital determinations. Congress reasonably chose to adopt the 11 definition of marriage that prevails among the vast majority of the states.26 In the 12 context of nationwide benefits and burdens, it surely is rational to treat two same13 sex couples in different states the same, rather than offering one couple distinct 14 benefits based on differences in state marriage law.27 15 16 17 18 19 20 21 22 23 24 25 26
See, e.g., 152 Cong. Rec. 10067 (2006) (Sen. Carper) (if a Delaware same-sex couple “go[es] to another country or another place where same-sex marriages are allowed . . . they are not married in my State”). Compare N.M. Att’y Gen. Op. No. 11-01, 2011 WL 111243 (Jan. 4, 2011) (predicting that New Mexico would recognize out-of-state same-sex marriages despite not issuing its own licenses to same-sex couples), with, e.g., Re: Recognition in New Jersey of Same-Sex Marriages, Civil Unions, Domestic Partnerships and Other Government-Sanctioned, Same-Sex Relationships Established Pursuant to the Laws of Other States and Foreign Nations, N.J. Att’y Gen. Op. No. 3-2007, 2007 WL 749807 (Feb. 16, 2007) (foreign same-sex marriages recognized as civil unions), and with, e.g., Fla. Const. art. I, § 27 (declining recognition). See Nuñez-Reyes v. Holder, 646 F.3d 684, 690 (9th Cir. 2011) (en banc) (where some states confer a certain status and others do not, it is rational for Congress “in the strong interest of uniformity” not to recognize the state-law status for federal purposes “rather than adopt a piecemeal approach” (quoting Nuñez-Reyes v. Holder, 602 F.3d 1102, 1107 (9th Cir. 2010) (Graber, J., concurring))); Dailey v. Veneman, No. 01-3146, 2002 WL 31780191, at *3 (6th Cir. Dec. 3, 2002) (describing “Congress’s interest in uniformity” as a rational basis and noting as to the program at issue that “Congress may have wanted to avoid confusion by establishing a uniform standard”).
27

25

26

Moreover, avoiding difficult choice-of-law questions that could arise if federal benefits turned on state law recognition of out-of-jurisdiction marriages is a sufficient basis alone to 27 support DOMA Section 3. For example, in the context of veterans’ benefits and in the absence

28 27

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1

ii. Preserving the Public Fisc and Previous Legislative Judgments. By

2 maintaining the traditional definition of marriage in DOMA Section 3, Congress 3 preserved both the public fisc and the legislative judgments of countless earlier 4 Congresses, which used terms like “marriage” and “spouse” on the understanding 5 that the programs they created conferred benefits or imposed duties solely for those 6 in traditional marriages. See House Rep. at 18; supra pp. 8-11. 7 Although Section 3 applies to federal marital burdens as well as benefits, on 8 balance, Congress reasonably could have concluded that a more restricted 9 definition of marriage would preserve the federal fisc. See Massachusetts, 682 10 F.3d at 14 (Congress’s decision based on preserving scarce government resources 11 “may well be true, or at least might have been thought true”). In statutes 12 apportioning benefits, saving money by declining to expand pre-existing eligibility 13 requirements or avoiding massive fiscal uncertainty are themselves rational bases.28 14 15 of statutory direction otherwise (e.g., DOMA Section 3), the validity of a marriage is determined 16 under “the law of the place where the parties resided at the time of marriage, or the law of the
place where the parties resided when the right to benefits accrued.” 38 U.S.C. § 103(c). Given

17 that the States currently take widely divergent views on the validity of a same-sex marriage, see, 18 analogous statute, would face a daunting administrative burden in assigning such veterans’ 19 there would be an arbitrary provision of dependent-spouse benefits only to those same-sex 20 couples who happened to reside in a state that recognized same-sex marriage at the time that the 21 rational for the government to prefer a regime that treats same-sex couples uniformly (and one 22 couples may marry cannot possibly burden the federal government,” Mot. for PI at 21). 23 24 25 26 27 28 28
28

e.g., supra p. 27 n.25, the federal government, in the absence of DOMA Section 3 or an

benefits. Furthermore, absent a uniform federal definition of marriage as to same-sex couples,

couple married and/or when the benefits accrued. This is just one example of why it is certainly example that exposes Plaintiffs’ error in asserting: “Differing state laws on whether same-sex

See, e.g., Bowen v. Owens, 476 U.S. 340, 347-48, 106 S. Ct. 1881, 90 L. Ed. 2d 316 (1986); Dandridge v. Williams, 397 U.S. 471, 487, 90 S. Ct. 1153, 25 L. Ed. 2d 491 (1970) (“The Constitution does not empower this Court to second-guess state officials charged with the difficult responsibility of allocating limited public welfare funds among the myriad of potential recipients.”); Ass’n of Residential Res. in Minn., Inc. v. Gomez, 51 F.3d 137, 141 (8th Cir. 1995) (“Preserving the fiscal integrity of welfare programs is a legitimate state interest.”); Hassan v. Wright, 45 F.3d 1063, 1069 (7th Cir. 1995) (“[P]rotecting the fisc provides a rational basis for Congress’s line drawing in this instance.”).

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1

To be sure, when government withdraws benefits that it previously offered

2 to a class of people, or affirmatively penalizes a class of people or imposes extra 3 financial obligations on them, saving money (or in the latter case, obtaining 4 money) alone may not justify the deprivation.29 But DOMA Section 3 does 5 neither. When Congress declines to extend benefits to those not previously 6 eligible, as here, the Supreme Court has recognized that this is justified by the 7 government interest in proceeding “cautiously” and protecting the fisc. Bowen, 8 476 U.S. at 348 (“A constitutional rule that would invalidate Congress’[s] attempts 9 to proceed cautiously in awarding increased benefits might deter Congress from 10 making any increases at all. The Due Process Clause does not impose any such 11 constitutional straitjacket.” (quotation marks and citation omitted)). 12 Congress expressly relied on this cost-saving rationale in enacting DOMA. 13 House Rep. at 18; see supra pp. 10-11. Indeed, Congress’s realization that 14 recognizing same-sex marriage for federal purposes would have a large and 15 unpredictable effect on the budgets of various federal agencies – benefitting some 16 agency budgets and substantially burdening others – would be a rational reason to 17 avoid such budgetary turmoil even were there some question whether the overall net 18 effect would be positive or negative. It was perfectly rational for Congress to avoid 19 that uncertainty by maintaining the traditional definition. 20 Additionally, in enacting DOMA, Congress recognized that a host of pre21 existing federal statutes allocated marital burdens and benefits based on the 22 traditional definition of marriage – because there had never been any other 23 definition. The Congresses that enacted these programs therefore reached 24 legislative judgments exclusively with opposite-sex couples in mind. It was 25 reasonable for the Congress that enacted DOMA to preserve those legislative 26
See Plyler v. Doe, 457 U.S. 202, 205, 227, 102 S. Ct. 2382, 72 L. Ed. 2d 786 (1982); Rinaldi v. Yeager, 384 U.S. 305, 309-10, 86 S. Ct. 1497, 16 L. Ed. 2d 577 (1966). 27
29

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1 judgments and to allow those programs to operate in the manner initially intended. 2 In the context of federal regulation and spending, that surely is rational. 3 iii. Caution in Facing the Unknown Consequences of a Novel Redefinition 4 of a Foundational Social Institution. Marriage is the Nation’s most important 5 social institution and one of the foundations of our society. See 150 Cong. Rec. 6 15347 (2004) (Sen. Clinton) (marriage is “the fundamental bedrock principle that 7 exists between a man and a woman, going back into the mi[]st of history as one of 8 the foundational institutions of history and humanity and civilization”). 9 Accordingly, in enacting DOMA Section 3, Congress had a supremely rational 10 basis to proceed with caution in considering whether to drop a criterion – opposite11 sex couples – that until now has been an essential element of such an enormously 12 important social concept. See supra pp. 8-12. 13 No human society has experienced the long- or even medium-term effects of 14 widespread acceptance of same-sex relationships as marriages. There thus is 15 ample room for a wide range of predictions about the likely effect of such 16 recognition. As two supporters of same-sex marriage put it, “whether same-sex 17 marriage would prove socially beneficial, socially harmful, or trivial is an 18 empirical question . . . . There are plausible arguments on all sides of the issue, 19 and as yet there is no evidence sufficient to settle them.” William Meezan & 20 Jonathan Rauch, Gay Marriage, Same-Sex Parenting, and America’s Children, 15 21 Future of Children 97, 110 (Fall 2005), 22 http://futureofchildren.org/futureofchildren/publications/docs/15_02_06.pdf 23 (endorsing a “limited, localized experiment” at the state level). 24 In enacting DOMA, Congress reasonably compared the ancient and well25 established benefits of traditional marriage with the near complete lack of 26 information about the consequences of recognizing same-sex marriages and 27 concluded that no basis had been identified to support such a major and 28 30

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1 unprecedented redefinition of such an important institution.30 Particularly in light 2 of the traditional role of states serving as “laborator[ies] . . . [of] novel social and 3 economic experiments without risk to the rest of the country,” New State Ice Co. v. 4 Liebmann, 285 U.S. 262, 309, 52 S. Ct. 371, 76 L. Ed. 747 (1932) (Brandeis, J., 5 dissenting), Congress rationally decided to let states experiment, while the federal 6 government continued to apply the traditional definition for federal law purposes. 7 Congress’s decision to neither attempt to override state law definitions for state 8 purposes nor adopt novel re-definitions for purposes of federal law surely is a 9 rational response to a change in the definition of a foundational social institution.31 10 11 12
30

See, e.g., 150 Cong. Rec. 4684 (2004) (Sen. Cornyn) (“The institution of marriage is

13 just too important to leave to chance. . . . The burden of proof is on those who seek to 14 generations.”); id. at 14942 (Sen. Hatch) (“The jury is out on what the effects on children and 15 marriage, popular representatives should be given deference on this issue.”); id. at 14949 (Sen. 16 Frist) (calling same-sex marriage “a vast untested social experiment for which children will bear
everybody has been doing this for 2000 years, but we think we ought to try something society will be . . . . [G]iven the uncertainty of a radical change in a fundamental institution like experiment with traditional marriage, an institution that has sustained society for countless

the ultimate consequences”); id. at 14951 (Sen. Sessions) (“I think anybody ought to be reluctant

17 to up and change [the traditional definition of marriage]; to come along and say, well, you know, 18 different.”); id. at 15444 (Sen. Smith) (expressing reluctance to “tinker[] with the foundations of 19 Talent) (“[T]he evidence is not even close to showing that we can feel comfortable making a 20 fundamental change in how we define marriage so as to include same-sex marriage within the
definition.”).
31

our culture, our civilization, our Nation, and our future”); 152 Cong. Rec. 10058 (2006) (Sen.

21 22 23 24 25 26 27 28

To be sure, “[s]tanding alone, historical patterns cannot justify contemporary violations of constitutional guarantees, but there is far more here than simply historical patterns.” Marsh v. Chambers, 463 U.S. 783, 790, 103 S. Ct. 3330, 77 L. Ed. 2d 1019 (1983). In considering DOMA, Congress recognized that marriage between a man and a woman “is deeply embedded in the history and tradition of this country” and “has become part of the fabric of our society” in a way that has produced countless immeasurable benefits. Id. at 786, 792. DOMA thus was born not of a reflexive adherence to tradition but of an appreciation for these vast benefits and a reluctance to change the institution of marriage in a way that could have unpredictable consequences. See Lawrence, 539 U.S. at 585 (O’Connor, J., concurring) (“preserving the traditional institution of marriage” is a rational basis for “laws distinguishing between heterosexuals and homosexuals”).

31

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1 2

b.

Common Federal-State Interests.

In addition to the above-noted uniquely federal rationales, DOMA Section 3

3 also is supported by rationales that justified the states’ adoption of the traditional 4 definition of marriage in the first place. Congress would not have needed to 5 engage in any fact-finding of its own to come to this conclusion: At DOMA 6 Section 3’s enactment, no state recognized same-sex marriage. And even now the 7 great majority of states recognize only opposite-sex relationships as marriages. 8 For that reason alone, it surely is rational for Congress to adopt the states’ 9 judgment as its own in this regard. Nevertheless, this section articulates some of 10 the rationales that reasonably could justify the decisions of both the great majority 11 of states and Congress to recognize only traditional marriages. 12 The traditional definition recognizes the close relationship between 13 opposite-sex marriages and child-rearing. Until recent scientific advances, 14 children could be conceived only though the union of one woman and one man, 15 and this remains the nearly exclusive means by which new lives are brought into 16 existence. Likewise, “[u]ntil a few decades ago, it was an accepted truth for almost 17 everyone who ever lived, in any society in which marriage existed, that there could 18 be marriages only between participants of different sex.” Hernandez v. Robles, 19 855 N.E.2d 1, 8, 7 N.Y.3d 388, 821 N.Y.S.2d 770 (N.Y. 2006). Although 20 marriage fulfills other functions, its defining purpose is the creation of a social 21 structure to deal with the inherently procreative nature of the male-female 22 relationship – the word “matrimony” itself implicates parenthood. Marriage 23 attempts to promote permanence and stability, which are vitally important to the 24 welfare of the children of marriages. 25 Congress recognized this in enacting DOMA, noting that, “[s]imply put, 26 government has an interest in marriage because it has an interest in children.” 27 28 32

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1 House Rep. at 13. This accords with the long tradition of our law.32 Opposite-sex 2 relationships have inherent procreative aspects that can produce unplanned 3 offspring. For this reason, heterosexual relationships implicate the state interest in 4 responsible procreation in a different way, and to a different degree, than do 5 homosexual relationships, and therefore rationally may be treated differently by the 6 government. Numerous courts have upheld states’ traditional marriage laws on 7 this basis.33 Foreign governments have expressed the same view.34 8 9 10 11 12 13 14 15
E.g., 1 William Blackstone, Commentaries on the Laws of England *447 (citing Puffendorf that “[t]he duty of parents to provide for the maintenance of their children[] is a principle of natural law”; citing Montesqueiu for the proposition “that the establishment of marriage in all civilized states is built on this natural obligation” (emphasis omitted)); id. *455 (“the main end of marriage” is “the protection of infants”); Institute for American Values, Marriage and the Law: A Statement of Principles 6, 18 (2006) (large group of family and legal scholars who “do not all agree substantively on . . . whether the legal definition of marriage should be altered to include same-gender couples,” stating that “[m]arriage and family law is fundamentally oriented towards creating and protecting the next generation.”). California law reflects the same principle. Aufort v. Aufort, 49 P.2d 620, 9 Cal. App. 2d 310 (Cal. Dist. Ct. App. 1935) (“[P]rocreation of children is the most important end of matrimony . . . .”).
33 32

See Citizens for Equal Prot., 455 F.3d at 867-68 (challenge to Nebraska state constitutional amendment); Conaway, 932 A.2d at 630-31 (challenge to Maryland state statute); 16 Andersen, 138 P.3d at 982-83 (challenge to Washington state statute).

17 18 19 20 21 22 23 24 25 26 27 28

See 1 French National Assembly, No. 2832: Report Submitted on Behalf of the Mission of Inquiry on the Family and the Rights of Children 68 (Jan. 25, 2006), English translation at http://www.preservemarriage.ca/docs/France_Report_on_the_Family_Edited.pdf (“[I]t is not possible to consider marriage and filiation separately, since . . . marriage [is] built around children.”); id. at 77 (“The institution of Republican marriage is inconceivable absent the idea of filiation and the sex difference is central to filiation. It corresponds to a biological reality – the infertility of same-sex couples . . . . Above all else, then, it is the interests of the child that lead a majority of the Mission to refuse to change the parameters of marriage.”); Schalk & Kopf v. Austria ¶¶ 44, 63, No. 30141/04 Eur. Ct. H. R. 2010, available at http://archive.equaljus.eu/109/1/Schalk_and_Kopf.pdf (same-sex couple argued that “the procreation and education of children was no longer a decisive element” of marriage; Austria and the United Kingdom opposed and the Court found no right to same-sex marriage); Joslin v. New Zealand ¶¶ 3.2, 8.2, 8.3, No. 902/1999 H.R. Comm. 2002, in 2 Report of the Human Rights Comm., U.N. Doc. A/57/40, 214 (2002), available at http://daccessods.un.org/access.nsf/Get?Open&DS=A/57/40(VOL.II)(SUPP)%20&Lang=E (New Zealand argued, inter alia, “that marriage centres on procreation, and homosexuals are incapable of procreation” and “that marriage is an optimum construct for parenting”; the Committee found no right to same-sex marriage).

34

33

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1

i. Subsidizing the Begetting and Raising of Children. Opposite-sex

2 relationships are unique in their inherent biological tendency to beget children: 3 Opposite-sex couples can, and do, conceive children without planning or intending 4 to. And the State has an interest in channeling procreative heterosexual activity 5 into the stable, permanent structure of marriage for the sake of children (especially 6 unplanned children) that may result. Moreover, because heterosexual relationships 7 between unmarried individuals sometimes result in unplanned offspring, the 8 government has an interest in encouraging marriage to provide a stable 9 environment for those children. Same-sex couples do not present this concern. 10 Unsurprisingly, only a tiny fraction of all children are raised in households 11 headed by same-sex couples,35 meaning that the overwhelming majority either are 12 raised by opposite-sex couples or were conceived in an opposite-sex relationship. 13 Thus, Congress rationally could desire to support children by focusing on opposite14 sex couples. Similarly, opposite-sex couples continue to raise children in 15 significantly greater proportions than same-sex couples.36 And, in all events, 16 same-sex couples do not raise the same issues with unplanned pregnancies. 17
UCLA’s Williams Institute estimates that “[a]s of 2005 . . . 270,313 of the U.S.’s children are living in households headed by same-sex couples,” Adam P. Romero et al., Census 19 Snapshot 2 (Dec. 2007), http://escholarship.org/uc/item/6nx232r4, or 0.37% of the 73,494,000 children in the U.S. that year. See Living Arrangements of Children Under 18 Years Old: 1960 20 to Present, U.S. Census Bureau, http://www.census.gov/hhes/families/data/children.html (download “Table CH-1”) (number of children).

18

35

21

36

2010 Census data indicate that only one in six same-sex couples are raising children.

22 Daphne Lofquist et al., Households and Families: 2010, Census Br. C2010BR-14, tbl. 3 (Apr. 23 http://www.census.gov/prod/cen2010/briefs/c2010br-14.pdf. This compares with the 24 approximately 40% of opposite-sex couples (both married and unmarried) raising children. Id.
2012) (examine “Same-sex partner preferred estimates” data), available at

(“Husband-wife households” and “Opposite-sex partner” data). Another Williams Institute 25 scholar estimates that the proportion of same-sex couples raising children is falling over time, as “[d]eclines in social stigma toward [gay, lesbian and bisexual] people mean that more are 26 coming out earlier in life and are becoming less likely to have children with different-sex partners” before starting a household with a same-sex partner. Gary J. Gates, Family formation 27 and raising children among same-sex couples, Family Focus on . . . LGBT Families (Nat’l

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1

Thus, the government rationally can limit an institution designed to facilitate

2 child-rearing to relationships in which the vast majority of children are raised, which 3 involve child-rearing considerably more often than other relationships, and which 4 implicate unique concerns about unplanned pregnancies. Notably, this 5 governmental interest exists regardless of whether the traditional mother-father 6 childrearing arrangement is in any sense “better” than any other.37 7 Plaintiffs’ observation that married couples are not required to have children, 8 see Mot. for PI at 19-20, does not change any of this. Since only a man and a 9 woman can beget a child together, logically, making those same parties the only 10 ones eligible for marriage is a rational way of linking the two. Cf. Tuan Anh 11 Nguyen v. INS, 533 U.S. 53, 70, 121 S. Ct. 2053, 150 L. Ed. 2d 115 (2001) (even 12 under heightened scrutiny, where a statute classifies based on a genuine biological 13 difference, the courts have not “required that the statute . . . be capable of 14 achieving its ultimate objective in every instance”). This is particularly true where 15 16 Council on Fam. Rel.), Winter 2011, at F2, available at http://williamsinstitute.law.ucla.edu/wp17 content/uploads/Gates-Badgett-NCFR-LGBT-Families-December-2011.pdf.
37

18 “has no coherent relationship to promoting heterosexual marriage,” Mot. for PI at 10, citing only 19 to an administrative ruling by a single Judge: In re Levenson, 587 F.3d 925, 932 (9th Cir. E.D.R.
2009). Equating an administrative ruling – which has no precedential value, see Forrester v. decisions, even though they may be essential to the very functioning of the courts, have not that Plaintiffs repeat frequently, see, e.g., Mot. for PI at 11 n.11, 12 n.12, 21. This error is

Plaintiffs respond by stating that “this Circuit” has concluded that DOMA Section 3

20 White, 484 U.S. 219, 228, 108 S. Ct. 538, 98 L. Ed. 2d 555 (1988) (judge’s “[a]dministrative 21 similarly been regarded as judicial acts”) – with circuit precedent is a substantial error, and one 22 particularly inexcusable because the House has called Plaintiffs’ lawyers on it before. Compare 23 [Pls.’] Opp’n to [House]’s Mot. to Dismiss at 11-12, Lui v. Holder, No. 2:11-cv-01267 (C.D. 24 25 26 27 28 35
Cal. Sept. 2, 2011) (ECF No. 31) (misciting In re Levenson, 560 F.3d 1145 (9th Cir. E.D.R. 2009), as Ninth Circuit authority), with [House]’s Consolidated Reply to Pls.’ and [DOJ’s] Opp’n to [House]’s Mot. to Dismiss (“House Lui Reply”) at 7-8, Lui v. Holder, No. 2:11-cv01267 (C.D. Cal. Sept. 12, 2011) (ECF No. 35) (noting plaintiffs’ mistake). Plaintiffs also rely on In re Balas, 449 B.R. 567, 578 (Bankr. C.D. Cal. 2011), see Mot. for PI at 10 n.10, 11 n.11, 12 n.12, a bankruptcy court case in which no party defended DOMA Section 3, as the House previously has noted. See House Lui Reply at 7-8 & n.3.

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1 most opposite-sex couples’ ability and willingness to raise children cannot be 2 determined in advance without intolerable and possibly unconstitutional intrusions 3 on their privacy – and even then could not be determined with much reliability in 4 many cases. And surely the government’s acceptance of unmarried parents does 5 not make it irrational for it to encourage parents to marry, and stay married. 6 ii. Encouraging and Subsidizing the Raising of Children by Their Own 7 Biological Mothers and Fathers. One of the strongest presumptions known to our 8 culture and law is that a child’s biological mother and father are the child’s natural 9 and most suitable guardians and caregivers, and that this family relationship will 10 not lightly be interfered with. E.g., Santosky v. Kramer, 455 U.S. 745, 760 n.11, 11 766, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982).38 Our tradition offers the same 12 protections for an adoptive parent-child relationship, once it is formed – but the 13 stringent standards imposed for eligibility to adopt, which never would be required 14 as a condition of custody of one’s own biological offspring, demonstrate the 15 unique value we place on the biological parent-child relationship. See Mullins v. 16 Oregon, 57 F.3d 789, 794 (9th Cir. 1995) (no fundamental liberty interest in 17 adopting a child); Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 31 L. Ed. 18 2d 551 (1972) (noting protected interest of “a man in the children he has sired and 19 raised”). There is a sound logical basis for this bedrock assumption: biological 20 parents have a genetic stake in the success of their children that no one else does. 21 It is rational for the government to encourage relationships that result in 22 mothers and fathers jointly raising their biological children. By offering benefits to 23 opposite-sex couples in enacting DOMA Section 3, and imposing the marital 24 expectations of fidelity, longevity, and mutual support, that is what Congress did. 25
International law recognizes the same principle. See United Nations Convention on the Rights of the Child, art. 7, 28 I.L.M. 1456, 1460 (Nov. 20, 1989) (a child has a right, “as far 27 as possible, . . . to know and be cared for by his or her parents”).

26

38

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1 Because same-sex relationships are incapable of creating families of mother, 2 father, and biological children, the legitimate state interest in promoting a family 3 structure that facilitates the rearing of children by both biological parents is 4 distinctively served by the traditional definition. 5 Plaintiffs claim, in passing, that parenting by same-sex couples is 6 interchangeable with parenting by a child’s biological mother and father. Mot. for 7 PI at 20. But this conclusion is, to say the least, insufficiently well-established, 8 such that Congress’ unwillingness to accept it cannot be said to be irrational. The 9 state of the research in this area was well summarized by two self-described 10 supporters of same-sex marriage in 2005: “[T]hose who say the evidence shows 11 that many same-sex parents do an excellent job of parenting are right. Those who 12 say the evidence falls short of showing that same-sex parenting is equivalent to 13 opposite-sex parenting (or better, or worse) are also right.” Meezan & Rauch, 14 supra p. 30, at 104; see also Hernandez, 855 N.E.2d at 8 (“What [the studies] 15 show, at most, is that rather limited observation has detected no marked 16 differences.”). While many states allow same-sex couples to adopt and raise 17 children, without interference by Congress, Congress still rationally could find 18 appropriate a unique degree of federal government encouragement for 19 arrangements where children are raised by the man and woman who begat them.39 20 iii. Encouraging Childrearing in a Setting with Both a Mother and a 21 Father. As the Supreme Court has recognized in other contexts: “‘The two sexes 22 are not fungible; a community made up exclusively of one sex is different from a 23
39

24 rational basis in a particular application, that rational basis fails. See Mot. for PI at 20. Just the 25 means and [the] ends,” Heller, 509 U.S. at 320-21; a statute may be both “underinclusive and 26 overinclusive,” Vance, 440 U.S. at 108. Cf. Tuan Anh Nguyen, 533 U.S. at 70 (even when
opposite pertains: Under rational basis review, there need not be any perfect “fit between [the]

Plaintiffs also err in suggesting that, if DOMA Section 3 does not advance a particular

heightened scrutiny applies, courts have not “required that the statute under consideration . . . be 27 capable of achieving its ultimate objective in every instance”).

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1 community composed of both.’” U.S. v. Virginia, 518 U.S. 515, 533, 116 S. Ct. 2 2264, 135 L. Ed. 2d 735 (1996) (quoting Ballard v. U.S., 329 U.S. 187, 193, 67 S. 3 Ct. 261, 91 L. Ed. 181 (1946) (brackets omitted)). Thus, even aside from the 4 biological link between parents and children, biological differentiation in the roles 5 of mothers and fathers makes it fully rational to encourage family situations that 6 allow children have one of each. Common sense, and the experience of countless 7 parents, inform us that children relate and react differently to mothers and fathers 8 based on differences between men and women in parenting style, size, and voice 9 tone. Moreover, the different challenges faced by boys and girls as they grow to 10 adulthood make it eminently rational to think that children benefit from being 11 raised by role models of both sexes.40 12 D. DOMA Section 3 Satisfies Substantive Due Process Principles. 13 Plaintiffs also claim that DOMA Section 3 violates the substantive due 14 process component of the Fifth Amendment, and is subject to a heightened 15 standard of review in this context. Compl. ¶¶ 72, 73; Mot. for PI at 6-14. But 16 heightened substantive due process review applies only where a fundamental 17 liberty interest is both at stake and infringed. Here, neither is the case. 18 19 1. No Fundamental Liberty Interest Is at Stake.

In the substantive due process context, only “those fundamental rights and

20 liberties which are, [i] objectively, deeply rooted in this Nation’s history and 21 tradition, and [ii] implicit in the concept of ordered liberty” should be recognized 22 for heightened scrutiny. Washington v. Glucksberg, 521 U.S. 702, 720-21, 117 S. 23 24
Congress also rationally could conclude that opposite-sex couples are more likely to remain together in committed relationships than are same-sex couples, as recent empirical 25 evidence tends to suggest. E.g., Matthijs Kalmijn, et al., Income Dynamics in Couples and the 26 Dissolution of Marriage and Cohabitation, 44 Demography 159, 170 (2007); Gunnar Andersson, et al., The Demographics of Same-Sex Marriages in Norway and Sweden, 43 Demography 79, 93 27 (2006).
40

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1 Ct. 2258, 138 L. Ed. 2d 772 (1997) (quotation marks and citations omitted). In 2 defining the right or interest at issue, the courts may not readily generalize to an 3 abstract description so as to implicate such a right or interest; rather, courts must 4 “careful[ly]” describe the asserted right or interest at issue. Id. at 721 (quotation 5 marks omitted). 6 By extending constitutional protection to an asserted right or 7 liberty interest, we, to a great extent, place the matter outside the arena of public debate and legislative action. We must therefore 8 exercise the utmost care whenever we are asked to break new 9 ground in this field lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the 10 Members of this Court. 11 Id. at 720 (quotation marks and citation omitted); see also Collins v. City of Harker 12 Heights, Tex., 503 U.S. 115, 125, 112 S. Ct. 1061, 117 L. Ed. 2d 261 (1992) 13 (“[T]he Court has always been reluctant to expand the concept of substantive due 14 process because guideposts for responsible decisionmaking in this unchartered area 15 are scarce and open-ended.”). 16 In Glucksberg, for example, the Supreme Court considered a state law 17 barring an individual from assisting another in ending his or her own life. 521 U.S. 18 at 707. The Court did not define the interest at issue in the broad terms suggested 19 by those attacking the statute – e.g., as a right to “determin[e] the time and manner 20 of one’s death,” the “right to die,” a “liberty to choose how to die,” a right to 21 “control of one’s final days,” “the right to choose a humane, dignified death,” or 22 “the liberty to shape death” – but rather as the more narrow “right to assistance in 23 committing suicide.” Id. at 722-23, 726 (quotation marks omitted). As so defined, 24 the Court found no fundamental right or liberty. Id. at 723-28.41 25 26
See also Reno v. Flores, 507 U.S. 292, 302-03, 113 S. Ct. 1439, 123 L. Ed. 2d 1 (1993) (narrowly defining right at issue as “alleged right of a child who has no available parent, 27 close relative, or legal guardian, and for whom the government is responsible, to be placed in the
41

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1

The Ninth Circuit likewise has required the courts to adopt “a narrow

2 definition of the interest at stake” in considering an asserted substantive due 3 process fundamental right or liberty interest. Raich v. Gonzalez, 500 F.3d 850, 863 4 (9th Cir. 2007); see also id. at 864 (“[T]he right must be carefully stated and 5 narrowly identified before the ensuing analysis can proceed.”). Raich defined the 6 interest at stake there not as the “right to make life-shaping medical decisions that 7 are necessary to preserve the integrity of her body, avoid intolerable physical pain, 8 and preserve her life,” but rather as the “right to use marijuana to preserve bodily 9 integrity . . .” – an interest that it had little trouble concluding was not entitled to 10 heightened substantive due process protection. Id. at 864-66 (brackets and 11 quotation marks omitted; emphasis in original). 12 Here, the Complaint as pled indicates that Plaintiffs seek to vindicate an 13 alleged right of Ms. DeLeon to obtain reconsideration, based on her obtaining a 14 state marriage certificate after many years of unlawful presence in this country, of 15 USCIS’s determination that she is not eligible to adjust to lawful permanent 16 resident status (because she misrepresented to the federal government a material 17 fact about herself at the time of her initial entry into this country in 1989). See 18 Compl. ¶ 27; First USCIS Dec. at 3. That is not a fundamental right or liberty 19 interest. Certainly there is no “objective[],” “deeply rooted . . . history and 20 tradition” in this country of allowing such a reopening on that basis (or any other). 21 Glucksberg, 521 U.S. at 720-21; see also, e.g., Mullins, 57 F.3d at 793-95 22 (considering history, traditions, and practices to determine that proposed right not 23 appropriate for substantive due process recognition). Nor is such an opportunity to 24 25 government-selected child-care institution” rather than an asserted right to “freedom from 26 physical restraint” or “to be released from all other custody into the custody of its parents, legal
guardian, or even close relatives”; also noting: “The mere novelty of . . . a claim is reason 27 enough to doubt that substantive due process sustains it” (quotation marks omitted)). custody of a willing-and-able private custodian rather than of a government-operated or

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1 reopen “implicit in the concept of ordered liberty,” which serves as an independent 2 reason why Plaintiffs’ proposed fundamental right or interest must be rejected. 3 Glucksberg, 521 U.S. at 721 (quotation marks omitted).42 Indeed, Congress at any 4 time could remove any opportunity of a petitioner to seek re-opening of the denial 5 of a waiver of a determination of non-eligibility for adjustment of status.43 6 2. DOMA Does Not Infringe Plaintiffs’ Purported Liberty 7 Interest. 8 Plaintiffs seek to avoid the force of this argument by defining their asserted 9 interest at an extremely high level of generality. In Plaintiffs’ telling, the right at 10 issue is “the integrity of their lawful marriage and their most intimate family 11 relationships.” Compl. ¶ 72. This, of course, is precisely what the Supreme Court 12 and Ninth Circuit have instructed courts not to do. See supra pp. 38-41. However, 13 even if this Court were to accept this articulation of Plaintiffs’ interest, and to deem 14
42

15 Ninth Circuit – to define the interest at stake broadly as the denial of any right based on status as 16 a same-sex spouse, there is no long history in the United States of recognition of such a right. In
fact, same-sex marriage first was allowed in this country only eight years ago. See Jackson, understood definition; [same-sex marriage] was first allowed by a state in 2004 . . . .”).
43

Even were this Court – contrary to the express direction of the Supreme Court and

17 2012 WL 3255201, at *22 (“In fact, [opposite sex marriage] is the historically and traditionally 18
See, e.g., I.N.S. v. Pangilinan, 486 U.S. 875, 882-83, 108 S. Ct. 2210, 100 L. Ed. 2d

19 882 (1988) (Congress has “exclusive constitutional power” over immigration and nationalization 20 conceivable subject is the legislative power of Congress more complete than it is over the
matters); Fiallo v. Bell, 430 U.S. 787, 792, 97 S. Ct. 1473, 52 L. Ed. 2d 50 (1977) (“[O]ver no admission of aliens.” (quotation marks omitted)). More than that, Congress at any time could

21 remove any opportunity for a waiver at all, or even flatly preclude any opportunity for an alien to 22 obtain adjustment of status, period. See, e.g., Miller v. Albright, 523 U.S. 420, 456, 118 S. Ct. 23 24 25 26 27 28 41

1428, 140 L. Ed. 2d 575 (1998) (“Because only Congress has the power to set the requirements for acquisition of citizenship by persons not born within the territory of the United States, federal courts cannot exercise that power under the guise of their remedial authority.”); Catholic Soc. Servs., Inc. v. Reno, 134 F.3d 921, 926 (9th Cir. 1997) (“[Congress’s] plenary authority with respect to immigration matters is . . . ingrained in our law.”). There simply exists no fundamental right of the sort envisioned by Plaintiffs. Plaintiffs’ claim actually sounds in equal protection, that is, where Congress provides for certain procedural rights in the immigration context, it may not deny those rights to same-sex spouses while simultaneously granting them to opposite-sex spouses. That claim fails for reasons stated above. See supra pp. 17-39.

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1 it fundamental, Plaintiffs’ asserted liberty interest is not infringed by DOMA 2 Section 3 and, accordingly, heightened scrutiny is not triggered. 3 The failure of the government to facilitate the exercise of a fundamental 4 right does not amount to an infringement of that right, as the Supreme Court 5 repeatedly has held.44 Put another way, while substantive due process principles 6 bar the government from directly infringing certain rights, e.g., by criminalizing 7 the exercise of that right, see Lawrence, 539 U.S. 558, the government is not 8 obligated to facilitate the exercise of such rights in its allocation of benefits.45 9 Here, DOMA Section 3 does not prohibit Ms. DeLeon and Ms. Rodriguez 10 from marrying, or from forming or maintaining any other family relationship; it 11 merely defines marriage for the purpose of distributing certain federal benefits and 12 burdens. Immigration determinations, of course, will have a practical effect on 13 how a couple is able to conduct their relationship – but so do many other 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 42
See, e.g., DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 196, 109 S. Ct. 998, 103 L. Ed. 2d 249 (1989) (“[T]he Due Process Clauses generally confer no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual.”); Bowen v. Gilliard, 483 U.S. 587, 601-02, 107 S. Ct. 3008, 97 L. Ed. 2d 485 (1987) (“That some families may decide to modify their living arrangements in order to avoid the effect of the amendment, does not transform the amendment into an act whose design and direct effect are to intrude on choices concerning family living arrangements.” (quotation marks omitted)). See also, e.g., Califano v. Jobst, 434 U.S. 47, 54, 98 S. Ct. 95, 54 L. Ed. 2d 228 (1977) (no infringement of substantive due process rights; government withdrawal of certain social security benefits upon marriage does not “interfere with the individuals’ freedom to make a decision as important as marriage”); Lyng v. Auto. Workers, 485 U.S. 360, 368, 108 S. Ct. 1184, 99 L. Ed. 2d 380 (1988) (denial of food stamps to striking households does not infringe First Amendment right of association, even though denial burdens exercise of that right); Taxation with Representation, 461 U.S. at 549 (noting that Court has held “in several contexts that a legislature’s decision not to subsidize the exercise of a fundamental right does not infringe the right”; “appropriations [at issue] are comparable to tax exemptions and deductions, which are also a matter of grace that Congress can, of course, disallow as it chooses” (quotation marks, brackets, and ellipsis omitted)); Harris v. McRae, 448 U.S. 297, 316-17 & n.19, 100 S. Ct. 2671, 65 L. Ed. 2d 784 (1980) (“A refusal to fund protected activity, without more, cannot be equated with the imposition of a ‘penalty’ on that activity”).
45 44

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1 consequences of unlawful conduct imposed by the state, such as incarceration, that 2 never have been thought to interfere with any nebulous right to “integrity” of 3 “family relationships.” Plaintiffs cite no authority for the proposition that states 4 can commandeer federal immigration law simply by issuing marriage licenses to 5 aliens who entered and remained in the country unlawfully. Accordingly, DOMA 6 Section 3 does not infringe substantive due process,46 as even DOJ has recognized. 7 See supra p. 13 n.12.47 8 E. Let the Democratic Process Work. 9 When it comes to same-sex marriage, “it is difficult to imagine an area more 10 fraught with sensitive social policy considerations in which federal courts should 11 not involve themselves if there is an alternative.” Smelt v. Cnty. of Orange, 447 12 F.3d 673, 681 (9th Cir. 2006). Fortunately, there is an alternative: Same-sex 13 marriage is being actively debated in legislatures, in the press, and at every level of 14 government and society across the country. That is how it should be. These fora 15 require participants on both sides to persuade those who disagree, rather than 16 labeling them irrational or bigoted. Importantly, gay-rights supporters have ample 17 and increasing clout in Congress and the Executive Branch. Congress’s recent 18
46

19 federal tax code does not violate substantive due process principles; “The adverse effect of the 20 ‘marriage penalty,’ . . . like the effect of the termination of social security benefits in Jobst, is
merely ‘indirect’”); Phila. Police & Fire Ass’n for Handicapped Children, Inc. v. City of

See, e.g., Druker v. Comm’r, 697 F.2d 46, 50 (2d Cir. 1982) (“marriage penalty” in

21 Philadelphia, 874 F.2d 156, 165-66 (3d Cir. 1989) (reduction in services for mentally 22 itself require members of the class to leave their family homes or enter institutions . . . although 23
it may make it more likely that they will do so”).
47

handicapped persons does not violate substantive due process principles because it “does not in

24 heightened scrutiny applies. See Mot. for PI at 6-14 (never arguing that DOMA Section 3
violates substantive due process principles under rational basis review). Because DOMA

Plaintiffs’ substantive due process claim depends entirely on the contention that

25 Section 3 satisfies rational basis review, see supra pp. 23-39, it does not violate substantive due 26 process. See, e.g., U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 173 n.8, 101 S. Ct. 453, 66 L. Ed.
2d 368 (1980) (“[I]f a federal statute is valid under the equal protection component of the Fifth 27 Amendment, it is perforce valid under the Due Process Clause of that Amendment.”).

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1 repeal of “Don’t Ask, Don’t Tell” is one prominent example. See Don’t Ask, 2 Don’t Tell Repeal Act of 2010, Pub. L. No. 111-321, 124 Stat. 3515 (2010), 10 3 U.S.C. §§ 651, 654. And bills to repeal DOMA are pending in both houses of 4 Congress, and one has passed the Senate Judiciary Committee. See Respect for 5 Marriage Act, H.R. 1116, 112th Cong. (2011); The Respect for Marriage Act of 6 2011, S. 598, 112th Cong. (2011). 7 By contrast, the courts can intervene in the debate only to cut it short, and 8 only by denouncing the positions of the hundreds of Members of Congress who 9 voted for DOMA, of the President who signed it, and of a vast swathe of the 10 American people as not just mistaken or antiquated, but as wholly irrational. That 11 conclusion plainly is unwarranted as a matter of constitutional law; judicially 12 constitutionalizing the issue of same-sex marriage is unwarranted as a matter of 13 sound social and political policy while the American people are so actively 14 engaged in working through this issue for themselves. Instead, this Court should 15 “permit[] this debate to continue, as it should in a democratic society.” 16 Glucksberg, 521 U.S. at 735. 17 II. Injury. 18 Plaintiffs purport to seek a preliminary injunction that applies to themselves, 19 and to “unnamed members of the plaintiff class.” [Proposed] Prel. Inj. at 3-4 (Aug. 20 23, 2012) (ECF No. 12-1). However, no class has been certified and, “in the 21 absence of class certification, [a] preliminary injunction may properly cover only 22 the named plaintiffs.” Nat’l Ctr. for Immigrants Rights, Inc. v. I.N.S., 743 F.2d 23 1365, 1371 (9th Cir. 1984); see also Zepeda v. I.N.S., 753 F.2d 719, 727 (9th Cir. 24 1983) (“A federal court . . . may not attempt to determine the rights of persons not 25 before the court.”); Fed. R. Civ. P. 65(d)(2). 26 In support of their motion, Plaintiffs say they are likely to succeed on the 27 merits, see Mot. for PI at 6-21, and that they “will suffer irreparable injury should a 28 44

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1 preliminary injunction not issue,” id. at 22. Plaintiffs are wrong about the 2 likelihood of success on the merits, as we have demonstrated above. See supra pp. 3 14-44. Their irreparable injury argument also is wrong, as we now show. 4 The injury alleged in the Complaint that purportedly provides Article III 5 standing for Plaintiffs to bring this action is the denial of Ms. DeLeon’s motion for 6 reconsideration on the basis of DOMA Section 3 (and the consequent denial of her 7 waiver application and application for adjustment of status). See Compl. ¶ 37. 8 In seeking preliminary injunctive relief, however, Plaintiffs stray far beyond 9 the alleged injury that actually provides the constitutional basis for their lawsuit, 10 and instead attribute to DOMA Section 3 a host of other ills that they now ask this 11 Court to remedy on a preliminary basis. DOMA Section 3, Plaintiffs say: 12 relegates plaintiffs DeLeon and Aranas to the status of 13 undocumented aliens, with all the disabilities attendant thereto: joblessness or employment without authorization, possible 14 deportation or removal, acquisition of unlawful presence time 15 which bars future admission for ten years, inability to obtain or renew drivers licenses, and the trauma of living under constant 16 threat of arrest and separation from family. 17 Mot. for PI at 22-23. These claims do not withstand even a cursory analysis. 18 First, DOMA Section 3 does not “relegate[] . . . [Ms.] DeLeon and [Mr.] 19 Aranas to the status of undocumented aliens.” Id. at 22. They are undocumented 20 aliens because Ms. DeLeon overstayed her visitor’s visa nearly 23 years ago; they 21 have been undocumented aliens during that entire period. Indeed, DOMA was not 22 even enacted until approximately seven years after their undocumented status 23 began and, therefore, logically cannot be the cause of that asserted “injury.” 24 Rather, Ms. DeLeon’s and Mr. Aranas’s status as undocumented aliens constitutes, 25 and has long constituted, the status quo, which alone renders Plaintiffs’ suggested 26 27 28 45

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1 preliminary injunction (by which Plaintiffs aim to transform that status, with all of 2 its intendant consequences) wholly improper.48 3 Second, DOMA does not cause Ms. DeLeon or Mr. Aranas to be jobless or 4 employed without authorization. Mot. for PI at 22. Ms. DeLeon is not eligible for 5 an employment authorization document because she is not documented, 8 C.F.R. § 6 274a.12, and that is a function of her overstay, not DOMA Section 3. (Mr. Aranas 7 in fact may be eligible for an employment authorization document under guidelines 8 recently promulgated by DHS.49) Moreover, many undocumented aliens work in 9 this country without authorization, and it appears that Ms. DeLeon may be one of 10 those. See Compl. ¶ 35(2) (Ms. DeLeon has “a wide range of ties in the U.S. 11 through [her] gainful employment”). Indeed, the Complaint nowhere asserts 12 affirmatively that Ms. DeLeon and Mr. Aranas actually are unemployed.50 13 14 15
See, e.g., L.A. Mem’l Coliseum Comm’n v. Nat’l Football League, 634 F.2d 1197, 1200 (9th Cir. 1980) (“[T]he basic function of a preliminary injunction is to preserve the status 16 quo ante litem pending a determination of the action on the merits.”); Tanner Motor Livery, Ltd. 17 v. Avis, Inc., 316 F.2d 804, 808 (9th Cir. 1963) (“It is so well settled as not to require citation of authority that the usual function of a preliminary injunction is to preserve the status quo ante 18 litem pending a determination of the action on the merits.”).
49 48

19 14, 2012), available at 20 http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnexto
id=f2ef2f19470f7310VgnVCM100000082ca60aRCRD&vgnextchannel=f2ef2f19470f7310Vgn
50

See Consideration of Deferred Action for Childhood Arrivals Process, USCIS (Sept.

21 VCM100000082ca60aRCRD#guidelines. 22 23 24 25 26 27 28 46
With respect to the generic complaint of “inability to obtain or renew drivers licenses,” Mot. for PI at 22, that also is not a function of DOMA Section 3. Rather, it is a function of legislative choices made by the State of California. See, e.g., Cal. Veh. Code § 12801.5 (West 2012) (proof of authorized presence in United States required to obtain California driver’s license). This is further evidenced by the fact that Governor Brown, on September 30, 2012, signed legislation that may entitle Mr. Aranas to receive a driver’s license, notwithstanding his undocumented status. See 2011 Cal. AB No. 2189 (Approved Sept. 30, 2012); Jim Sanders, California law will allow illegal immigrants to get driver's licenses, Sacramento Bee, Oct. 1, 2012, available at http://www.thestate.com/2012/10/01/2464079/california-law-will-allowillegal.html.

Case 8:12-cv-01137-CBM-AJW Document 50-4 Filed 10/09/12 Page 66 of 69 Page ID #:1001

1

Third, DOMA Section 3 does not cause Ms. DeLeon or Mr. Aranas to face

2 “possible deportation or removal.” Mot. for PI at 22. As an initial matter, there is 3 no indication whatsoever that, notwithstanding their nearly 23 years of 4 unauthorized presence in the United States, Ms. DeLeon and Mr. Aranas face any 5 actual threat of deportation or removal. See Oakland Trib., Inc. v. Chron. Publ’g 6 Co., 762 F.2d 1374, 1377 (9th Cir. 1985) (affirming denial of preliminary 7 injunction where challenged practice had “been in effect for many years,” and 8 “[w]here no new harm was imminent”). Moreover, there are several reasons to 9 expect that Ms. DeLeon and Mr. Aranas do not now, and will not in the immediate 10 future, face any threat of deportation or removal: 11 1. The Executive Branch’s tolerance of their illegal residence in this country 12 for nearly 23 years is unlikely to change now given that (i) the question of DOMA 13 Section 3’s constitutionality is likely to be before the Supreme Court this term;51 14 (ii) if DOMA Section 3 is struck down, Ms. Rodriguez will be able to file a family15 based immigrant petition on behalf of Ms. DeLeon; (iii) if DOMA Section 3 is not 16 struck down, Ms. DeLeon, as a result of 8 U.S.C. § 1255(i), still would appear to 17 be entitled to file an adjustment of status application when her priority date 18 becomes current on the family-based immigrant petition filed by her U.S. citizen 19 father in 2001.52 20
51

Eight petitions for certiorari currently are pending in four different cases in which

21 DOMA Section 3 has been declared unconstitutional. Invalidation of an Act of Congress is a 22 146 L. Ed. 2d 658 (2000) (“Because the Court of Appeals invalidated a federal statute on
reason for granting certiorari. See, e.g., U.S. v. Morrison, 529 U.S. 598, 605, 120 S. Ct. 1740, constitutional grounds, we granted certiorari.”); see also Eugene Gressman, et al., Supreme

23 Court Practice 264 (9th ed. 2007) (“Where the decision below holds a federal statute 24 unconstitutional . . . , certiorari is usually granted because of the obvious importance of the
case.”).

25

Section 1255(i) is a form of “amnesty,” enacted in 2000, that permits certain aliens to adjust to permanent resident status, notwithstanding that they otherwise would be ineligible to 26 adjust because they are not “in a lawful nonimmigrant status.” 8 U.S.C. § 1255(c)(7). It appears 27 from the record before this Court that Ms. DeLeon would be eligible for this “amnesty.”

52

28 47

Case 8:12-cv-01137-CBM-AJW Document 50-4 Filed 10/09/12 Page 67 of 69 Page ID #:1002

1

2. In other immigration cases involving same-sex couples, DHS has

2 refrained from pushing for removal.53 3 3. DHS publicly has indicated that its removal priorities lie elsewhere.54 4 In short, there is no indication that Ms. DeLeon or Mr. Aranas face 5 imminent deportation, and so there is no indication that preliminary injunctive 6 relief is needed to forestall that danger. Finally, and in any event, to the extent Ms. 7 DeLeon and Mr. Aranas really do face any such “possible” injury, Mot. for PI at 8 22 – a dubious proposition, to say the least – that is a function of Ms. DeLeon’s 9 overstay, not DOMA Section 3. 10 Fourth, DOMA Section 3 does not cause Ms. DeLeon and Mr. Aranas to 11 acquire “unlawful presence time which bars future admission for ten years.” Mot. 12 for PI at 22. The law that imposes the ten year bar, which is triggered by unlawful 13 presence in the United States of more than one year, was enacted in 1996 and took 14 effect on April 1, 1997.55 Ms. DeLeon and Mr. Aranas have been unlawfully 15 present in this country since December 1989, which means they long ago accrued 16 the “one year or more” of unlawful presence for purposes of the 10-year bar 17 provision. DOMA Section 3 manifestly is irrelevant in this regard. 18
See, e.g., In re Dorman, 25 I. & N. Dec. 485 (BIA 2011); Status Report . . . at 6, Torres-Barragan v. Holder, No. 10-55768 (9th Cir. Feb. 23, 2012) (ECF No. 49-1) (upon 20 administrative closure of BIA proceedings, plaintiff no longer facing immediate adverse action).

19

53

21

See, e.g., Letter from Janet Napolitano, Secretary, DHS, to Senator Harry Reid at 1 (Aug. 18, 2011) (attached as Ex. B) (“Over the past two years, [DHS] has established clear and 22 well-reasoned priorities that govern how DHS uses its immigration enforcement resources. These priorities focus our resources on enhancing border security and identifying and removing 23 criminal aliens, those who pose a threat to public safety and national security, repeat immigration 24 law violators and other individuals prioritized for removal.”); Letter from Janet Napolitano, Secretary, DHS, to Congressman Jerold Nadler (Sept. 27, 2012) (attached as Ex. C).

54

25

See Illegal Immigration Reform and Immigration Responsibility Act of 1996, Pub. L. No. 104-208, Div. C, § 309(a),110 Stat. 3009-546 (1996); see also 8 U.S.C. § 1182(a)(9)(B) 26 (providing for ten-year bar on readmission of an alien who “has been unlawfully present in the 27 United States for one year or more”).

55

28 48

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1

Finally, Plaintiffs’ PI Motion also should be denied because (i) the eight-

2 month delay between the latest USCIS action in this case (the Second USCIS 3 Decision) and Plaintiffs’ filing of their Complaint, belies any possible claim of any 4 impending or irreparable harm,56 and (ii) Plaintiffs have not, and cannot, establish 5 that, absent DOMA Section 3, Ms. DeLeon would have obtained a waiver of 6 inadmissibility. See 8 U.S.C. § 1182(a)(9)(B)(v); In re Cervantes-Gonzalez, 22 I. 7 & N. Dec. 560, 565-68 (BIA 1999) (en banc) (extreme hardship exception 8 construed “narrowly;” “establishing extreme hardship does not create any 9 entitlement to relief;” “Although extreme hardship is a requirement for section 10 212(i) relief, once established, it is but one favorable discretionary factor to be 11 considered.”). 12 13 CONCLUSION For all the foregoing reasons, the Court should deny Plaintiffs’ motion for a

14 preliminary injunction. 15 16 17 18 19 20 21 22 23 24 25
See Oakland Trib., 762 F.2d at 1377 (“Plaintiff’s long delay before seeking a preliminary injunction implies a lack of urgency and irreparable harm.” (citing Lydo Enters. v. 26 City of Las Vegas, 745 F.2d 1211, 1213-14 (9th Cir. 1984))); GTE Corp. v. Williams, 731 F.2d 27 676, 678-79 (10th Cir. 1984).
56

28 49

Case 8:12-cv-01137-CBM-AJW Document 50-4 Filed 10/09/12 Page 69 of 69 Page ID #:1004

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
57

Respectfully submitted, By: /s/ Paul D. Clement Paul D. Clement BANCROFT PLLC57 Counsel for Intervenor-Defendant58 October 9, 2012

Kerry W. Kircher, as ECF filer of this document, attests that concurrence in the filing of the document has been obtained from signatory Paul D. Clement.
58

The Bipartisan Legal Advisory Group, which speaks for the House in litigation matters, currently is comprised of the Honorable John A. Boehner, Speaker of the House, the 25 Honorable Eric Cantor, Majority Leader, the Honorable Kevin McCarthy, Majority Whip, the 26 Honorable Nancy Pelosi, Democratic Leader, and the Honorable Steny H. Hoyer, Democratic Whip. The Democratic Leader and Democratic Whip decline to support the filing of this 27 opposition.

28

Case 8:12-cv-01137-CBM-AJW Document 50-5 #:1005

Filed 10/09/12 Page 1 of 28 Page ID

Exhibit A
(to Memorandum in Opposition to Motion for Preliminary Injunction)

Case 8:12-cv-01137-CBM-AJW

Case 8:12-cv-01137-CBM-AJW Document 50-5 #:1007

Filed 10/09/12 Page 3 of 28 Page ID

Case 8:12-cv-01137-CBM-AJW Document 50-5 #:1008

Filed 10/09/12 Page 4 of 28 Page ID

Case 8:12-cv-01137-CBM-AJW Document 50-5 #:1009

Filed 10/09/12 Page 5 of 28 Page ID

Case 8:12-cv-01137-CBM-AJW Document 50-5 #:1010

Filed 10/09/12 Page 6 of 28 Page ID

Case 8:12-cv-01137-CBM-AJW Document 50-5 #:1011

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Case 8:12-cv-01137-CBM-AJW Document 50-5 #:1012

Filed 10/09/12 Page 8 of 28 Page ID

Case 8:12-cv-01137-CBM-AJW Document 50-5 #:1013

Filed 10/09/12 Page 9 of 28 Page ID

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Case 8:12-cv-01137-CBM-AJW Document 50-5 Filed 10/09/12 Page 11 of 28 Page ID #:1015

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12 Page 16 of 28 Page ID

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Case 8:12-cv-01137-CBM-AJW Document 50-5 Filed 10/09/12 Page 20 of 28 Page ID #:1024

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Case 8:12-cv-01137-CBM-AJW

Case 8:12-cv-01137-CBM-AJW Document 50-6 #:1033

Filed 10/09/12 Page 1 of 3 Page ID

Exhibit B
(to Memorandum in Opposition to Motion for Preliminary Injunction)

Case 8:12-cv-01137-CBM-AJW Document 50-6 #:1034

Filed 10/09/12Secretary 2 of 3 Page ID Page
U.S. Department of Homeland Security Washington, DC 20528

Homeland Security
August 18,2011

The Honorable Harry Reid Majority Leader United States Senate Washington, DC 20510 Dear Senator Reid: Thank you for your letter to President Obama regarding the Administration's immigration enforcement policies and the Development, Relief, and Education for Alien Minors (DREAM) Act. The President has asked me to respond on his behalf. Over the past two years, the Department of Homeland Security (DHS) has established clear and well-reasoned priorities that govern how DHS uses its immigration enforcement resources. These priorities focus our resources on enhancing border security and identifying and removing criminal aliens, those who pose a threat to public safety and national security, repeat immigration law violators and other individuals prioritized for removal. Initially set forth in a March 2010 memorandum from U.S. Immigration and Customs Enforcement (ICE) Director John Morton, these priorities were recently reiterated and clarified in Director Morton's June 17,2011 memorandum regarding the exercise of prose cut oria I discretion by ICE personnel. While additional work remains, we have made tremendous progress in our effort to focus DHS resources on these enforcement priorities. Our FY 2010 statistics are illustrative. In FY 2010, ICE removed 79,000 more aliens who had been convicted ofa crime than it did in FY 2008. As a result, for the first time ever and due to the expansion of the Secure Communities program, over 50 percent of the aliens removed by ICE in a fiscal year were convicted criminals. Of those removed with no confirmed criminal conviction, more than two-thirds were either apprehended at the border or were repeat violators of our immigration laws. As enforcement directives continue to be implemented, we anticipate that these trends will increase in FY 2011. The President has said on numerous occasions that it makes no sense to expend our enforcement resources on low-priority cases, such as individuals like those you reference in your letter, who were brought to this country as young children and know no other home. From a law enforcement and public safety perspective, DHS enforcement resources must continue to be focused on our highest priorities. Doing otherwise hinders our public safety mission-clogging immigration court dockets and diverting DHS enforcement resources away from individuals who pose a threat to public safety.

www.dhs.gov

The Honorable Harry Reid Page 2

Case 8:12-cv-01137-CBM-AJW Document 50-6 #:1035

Filed 10/09/12 Page 3 of 3 Page ID

Accordingly, the June 17,2011 prosecutorial discretion memorandum is being implemented to ensure that resources are uniformly focused on our highest priorities. Together with the Department of Justice (DOJ), we have initiated an interagency working group to execute a case-by-case review of all individuals currently in removal proceedings to ensure that they constitute our highest priorities. The working group will also initiate a case-by-case review to ensure that new cases placed in removal proceedings similarly meet such priorities. In addition, the working group will issue guidance on how to provide for appropriate discretionary consideration to be given to compelling cases involving a final order of removal. Finally, we will work to ensure that the resources saved as a result of the efficiencies generated through this process are dedicated to further enhancing the identification and removal of aliens who pose a threat to public safety. This case-by-case approach will enhance public safety. Immigration judges will be able to more swiftly adjudicate high priority cases, such as those involving convicted felons. This process will also allow additional federal enforcement resources to be focused on border security and the removal of public safety threats. Although the process for implementing the June 17 memorandum will focus the Administration's immigration enforcement efforts on high priority cases, it will not provide categorical relief for any group. Thus, this process will not alleviate the need for passage of the DREAM Act or for larger reforms to our immigration laws. President Obama has called the DREAM Act the right thing to do for the young people it would affect, and the right thing to do for the country. Last December, I joined the President and several members of his Cabinet in urging the Congress to pass this important legislation. Earlier this year I was fortunate to be able to testify in favor of the Act. I continue to urge the 112th Congress to pass the DREAM Act as well as other necessary immigration reforms. Thank you again for your letter. My office would be pleased to provide you with a briefing to discuss this process in greater detail. Identical responses have been sent to the Senators that co-signed your letter. Should you wish additional assistance, please do not hesitate to contact me at (202) 282-8203. Yours very truly,

Janet Napolitano Enclosure

Case 8:12-cv-01137-CBM-AJW Document 50-7 #:1036

Filed 10/09/12 Page 1 of 2 Page ID

Exhibit C
(to Memorandum in Opposition to Motion for Preliminary Injunction)

Case 8:12-cv-01137-CBM-AJW Document 50-7 #:1037

Filed 10/09/12Secretary 2 of 2 Page ID Page
U.S. Department of Homeland Security Washington, DC 20528

Homeland Security
September 27, 2012

The Honorable Jerrold Nadler U.S. House ofRepresentatives Washington, DC 20515 Dear Representative Nadler: Thank you for your July 31 , 2012 letter regarding the exercise of prosecutorial discretion with respect to lesbian, gay, bisexual, and transgender (LGBT) individuals. As you are aware, U.S. Immigration and Customs Enforcement (ICE) Director John Morton' s June 2011 memorandum, "Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens," requires ICE personnel, when considering whether an exercise of prosecutorial discretion is appropriate, to consider the totality of the circumstances presented in individual cases, including whether an individual has close family ties to the United States, when making enforcement decisions. In an effort to make clear the definition of the phrase "family relationships," I have directed ICE to disseminate written guidance to the field that the interpretation of the phrase "family relationships" includes long-term, same-sex partners. As with every other factor identified in Director Morton' s June 11 memorandum, the applicability of the "family relationships" factor is weighed on an individualized basis in the consideration of whether prosecutorial discretion is appropriate in a given case. Thank you again for your letter. The Members who cosigned your letter will receive separate, identical responses. Should you need additional assistance, please do not hesitate to contact me at (202) 282-8203 . Yours very truly,

JIll~
Janet Napolitano

www.dhs.gov

Case 8:12-cv-01137-CBM-AJW Document 50-8 #:1038

Filed 10/09/12 Page 1 of 2 Page ID

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA Southern Division ___________________________________ ) MARTIN R. ARANAS, IRMA ) No. 8:12-cv-01137-CBM (AJWx) RODRIGUEZ, and JANE DeLEON, ) ) Plaintiffs, ) ) [PROPOSED] ORDER v. ) ) JANET NAPOLITANO, et al., ) ) Defendants, ) ) BIPARTISAN LEGAL ADVISORY ) GROUP OF THE U.S. HOUSE OF ) REPRESENTATIVES, ) ) Intervenor-Defendant. ) ___________________________________ ) [PROPOSED] ORDER UPON CONSIDERATION OF the Ex Parte Application of IntervenorDefendant for Leave to File Two Separate Legal Memoranda, Each in Excess of 25 Pages (“Application”), and the entire record herein, it is by this Court this ____ day of October, 2012, hereby ORDERED That the Application is GRANTED. IT IS FURTHER ORDERED that the Memorandum of IntervenorDefendant Bipartisan Legal Advisory Group of the United States House of Representatives in Support of Motion to Dismiss (Oct. 9, 2012), attached to the Application at Tab 2, shall be docketed.

Case 8:12-cv-01137-CBM-AJW Document 50-8 #:1039

Filed 10/09/12 Page 2 of 2 Page ID

1

IT IS FURTHER ORDERED that the Memorandum of Intervenor-

2 Defendant Bipartisan Legal Advisory Group of the United States House of 3 Representatives in Opposition to Motion for Preliminary Injunction (Oct. 9, 2012), 4 attached to the Application at Tab 3, shall be docketed. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 _______________________________ HON. CONSUELO B. MARSHALL UNITED STATES DISTRICT JUDGE

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