Case: 10-2207 Document: 00116331737 Also filed in 10-2204 and 10-2214

Page: 1

Date Filed: 02/10/2012

Entry ID: 5617633

February 9, 2012 Margaret Carter, Clerk of Court United States Court of Appeals for the First Circuit John Joseph Moakley U.S. Courthouse 1 Courthouse Way, Suite 2500 Boston, MA 02210 Re: Gill, et al. v. Office of Personnel Management, et al. (Nos. 10-2204/10-2207/10-2214) Dear Ms. Carter: Pursuant to FRAP 28(j), Plaintiffs-Appellees and Plaintiff-Appellee/Cross-Appellant in the above-captioned matter write to inform the Court of a recent relevant decision. In Perry v. Brown, No. 10-16696, 2012 U.S. App. Lexis 2328 (9th Cir. Feb. 7, 2012), the Ninth Circuit struck down under the Equal Protection Clause a state constitutional amendment (“Proposition 8”) defining marriage to exclude same sex-couples, applying rational-basis review. Perry provides instructive guidance here for a number of reasons. First, the Ninth Circuit held that Romer v. Evans, 517 U.S. 620 (1996), controlled since Proposition 8 withdrew marriage rights only for gay people. Id. at *66-83. DOMA likewise withdraws the rule of federal marital recognition only for married same-sex couples. The court also rejected many of the same rationales offered to support DOMA here. It found that Proposition 8 did not further an interest in childrearing because excluding same-sex couples from marriage did not affect the right of those couples to have or raise children. Id. at *85-88. It found Proposition 8 likewise did not further an interest in encouraging different-sex couples to engage in responsible procreation because there was no credible reason to think excluding samesex couples from marriage would change the behavior of different-sex couples. Id. at *88-91. The court also rejected “proceeding with caution” as a rationale, both because that was not a conceivable purpose of the law given its operation and legislative history and because Proposition 8 was phrased as a permanent ban, not a measure to allow a period of careful study. Id. at *95-98. The court likewise rejected the argument that protecting the traditional definition of marriage was a cognizable interest. Id. at *100-102. These issues are germane to our argument that DOMA must fail rational-basis review. Appellees Br. at 26-44. The Perry majority and the dissent also rejected the argument that Baker v. Nelson was relevant to the disposition of the case, 2012 U.S. App. Lexis 2328, at *71 n.14; id. at *122-124 (Smith, J., concurring in part and dissenting in part), even though Baker was more similar to Perry than it is to our case. See Appellees’ Br. at 60-64. Sincerely, /s/ Mary L. Bonauto

 

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