Case 2:11-cv-00045-CDJ Document 114 Filed 03/02/12 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA COZEN O’CONNOR, P.C., Plaintiff, v. JENNIFER J. TOBITS, et al. Defendants. : : ORDER Before the Court are: (1) David and Joan Farley’s Motion to Dismiss CrossClaims of Jennifer Tobits (Docket No. 25); Cozen O’Connor, P.C.’s (“Cozen”) Motion for Judgment on the Pleadings (Docket No. 31); Jennifer J. Tobits’s Motion for Judgment on the Pleadings (Docket No. 36); and Responses and Replies to each of these Motions. Ms. Tobits filed a Notice of Federal Constitutional Question (Docket No. 27) and a Notice of State Constitutional Question (Docket No. 28). The Court granted leave to intervene in this matter to: (1) the Bipartisan Legal Advisory Group (“BLAG”) of the U.S. House of Representatives,1 and (2) the United States.2 The Court also granted the motions of multiple parties to appear as : : : : : : CIVIL ACTION NO. 11-0045

BLAG has notified the Court that it “functions on a majoritarian basis, like the institution it represents, when consensus cannot be achieved. [BLAG] is currently 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.” See BLAG Motion to Intervene at 1. BLAG further stated that “[t]he Democratic Leader and the Democratic Whip decline[d] to support [the motion to intervene].” Id. The United States initially declined to intervene based on the conclusion that, “because there is some possibility that this case may be resolved without the Court reaching the issue of the constitutionality of Section 3 of DOMA,” doing so would “be premature.” See U.S. Acknowledgment of Constitutional Challenge at 1. However, after this Court issued its Order Page 1 of 5
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amicus curiae.3 At the request of the Court, the parties filed supplemental briefing on relevant constitutional questions. The parties have also filed multiple Requests for Judicial Notice and Notices of Supplemental Authority. Oral argument on the pending motions in this matter is scheduled for March 12, 2012. * * *

AND NOW, this 1st day of March, 2012, it is hereby ORDERED that: 1. 2. Oral argument on March 12, 2012 shall commence at 1:00 p.m. Argument shall proceed as follows:4 A. Moving Parties 1. 2. 3. Mr. and Mrs. Farley - 45 minutes Ms. Tobits - 45 minutes Cozen O’Connor, P.C. - 45 minutes

- 15 minute break -

seeking supplemental briefing on constitutional questions, the United States timely moved to intervene as of right and subsequently filed appropriate briefing. These parties include: The Human Rights Campaign and Equality Forum (joint brief); Concerned Women for America; the Frederick Douglass Foundation; Parents and Friends of ExGays and Gays; Professor Robert P. George, Sherif Girgis, and Ryan T. Anderson (joint brief); and Gage Raley. Times listed are maximums; parties may take less time if appropriate. Arguments should not be mere recitations of briefs. The parties shall offer presentations that highlight what they deem to be the most compelling arguments. The Court also expects the parties to be prepared to address the major arguments against their own positions. The Court will make inquiries during the presentations as necessary. Page 2 of 5
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B.

Intervenors and Amici5 1. 2. 3. 4. 4. Intervenor U.S. House of Representatives - 30 minutes Intervenor United States - 30 minutes Amici George/Girgis/Anderson - 15 minutes Amicus Frederick Douglass Foundation - 15 minutes Amici Human Rights Campaign/Equality Forum - 30 minutes

3.

The issues to be discussed by the Moving Parties are as follows:6 A. Whether the Cozen Plan’s choice-of-law provision impacts the definition of “spouse,” and, if so, whether Illinois or Pennsylvania law should be utilized in that regard. B. Whether the Cozen Plan’s definition of the word “spouse” is ambiguous. If so, whether the Court should consider extrinsic evidence to resolve the ambiguity (and what evidence should be considered). C. What impact, if any, the decisions of the Illinois courts concerning Ms. Tobits’s status as Ms. Farley’s heir have on determination of the issues before the Court.

The Court has granted leave for a significant number of amici to file briefs in this matter. Those briefs have been well-prepared and are of great assistance to the Court. All amici are free to attend this argument. However, the Court, in its discretion and bearing in mind considerations of judicial economy, is limiting oral presentations to the parties listed above. This should in no way be interpreted as any judgment as to the arguments submitted in writing by other amici. At the conclusion of the schedule set forth above, the Court may, at its discretion, opt to inquire if any additional amici who are present have legal points that are non-cumulative of prior arguments and briefing which they desire to bring to the Court’s attention. Any such opportunity shall, not, however, be interpreted as an invitation to discuss non-legal points or reiterate prior argument.
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Intervenors and amici shall limit their presentations to issues they have briefed. Page 3 of 5

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D.

Whether Plaintiff has standing to assert a breach of fiduciary duty claim against Cozen, and whether, assuming, arguendo, that standing exists, Plaintiff has sufficiently alleged that Cozen breached its fiduciary duty by failing to properly communicate to Ms. Farley that a same-sex spouse may not be considered a “spouse” under the Cozen Plan.

E.

Whether ERISA dictates the definition of the meaning of “spouse” or precludes private employers from covering same-sex spouses under their plans.

F.

Whether the federal Defense of Marriage Act (“DOMA”) controls the terms of private employer benefit plans so as to prevent a private employer from defining the term “spouse” in its ERISA plan to include a same-sex spouse.

G.

Whether DOMA’s plain text, legislative history, and doctrines of constitutional avoidance preclude the Court from reaching the question of whether DOMA violates the U.S. Constitution.

H.

Assuming, arguendo, that DOMA controls here and it is necessary for the Court to reach a constitutional question, whether DOMA violates the Equal Protection Clause of the U.S. Constitution, including: i. ii. The appropriate level of review and reasons for such. Whether and how DOMA survives rational basis review (including discussion of the interests contemplated by Congress when DOMA was adopted). iii. Whether and how DOMA survives heightened scrutiny review (including discussion of the interests contemplated by Congress when DOMA was Page 4 of 5

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adopted). I. Assuming, arguendo, that DOMA controls here and it is necessary for the Court to reach a constitutional question, whether DOMA violates the Due Process Clause of the U.S. Constitution. J. Whether the Commonwealth of Pennsylvania’s Defense of Marriage Act (“PADOMA”) controls Ms. Tobits’s right to a surviving spouse benefit, and, if so, whether PA-DOMA violates (1) federal due process and equal protection rights; (2) Pennsylvania’s Equal Rights Amendment; or (3) any other Pennsylvania constitutional equality guarantee. K. Assuming, arguendo, that DOMA (and, if appropriate, PA-DOMA) is unconstitutional, whether Cozen O’Connor’s actions are redressable at law. L. The impact of any recent judicial decision(s) on evaluation of the questions set forth above, including, but not limited to, Golinski v. U.S. Office of Personnel Management, 2012 WL 569685 (N.D. Cal. Feb. 22, 2012). 4. Parties may contact Chambers on March 9, 2012 to ascertain the assigned courtroom.

BY THE COURT: /s/ C. Darnell Jones, II _________________________________ C. DARNELL JONES, II UNITED STATES DISTRICT JUDGE

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