Case 8:12-cv-01137-CBM-AJW Document 85

Filed 11/06/12 Page 1 of 14 Page ID #:1917

1 Paul D. Clement (DC Bar 433215) [email protected] 2 H. Christopher Bartolomucci (DC Bar 453423) 3 [email protected] Nicholas J. Nelson (DC Bar 1001696) 4 [email protected] 5 Michael H. McGinley (DC Bar 1006943) [email protected] 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 [email protected] William Pittard, Deputy General Counsel (DC Bar 482949) 14 [email protected] 15 Christine Davenport, Senior Assistant Counsel (NJ Bar 043682000) [email protected] 16 Todd B. Tatelman, Assistant Counsel (VA Bar 66008) 17 [email protected] Mary Beth Walker, Assistant Counsel (DC Bar 501033) 18 [email protected] 19 Eleni M. Roumel, Assistant Counsel (SC Bar 75763) [email protected] 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

Case 8:12-cv-01137-CBM-AJW Document 85

Filed 11/06/12 Page 2 of 14 Page ID #:1918

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, ) ) REPLY TO PLAINTIFFS Plaintiffs, ) OPPOSITION AND IN ) SUPPORT OF INTERVENORv. ) DEFENDANT THE ) BIPARTISAN LEGAL JANET NAPOLITANO, et al., ) ADVISORY GROUP OF THE ) UNITED STATES HOUSE OF Defendants, ) REPRESENTATIVES ) MOTION TO DISMISS THE BIPARTISAN LEGAL ADVISORY ) GROUP OF THE U.S. HOUSE OF ) Hearing: Nov. 20, 2012 REPRESENTATIVES, ) Time: 10:00 a.m. ) Hon. Consuelo B. Marshall Intervenor-Defendant. ) ___________________________________ ) INTRODUCTION Intervenor-Defendant the Bipartisan Legal Advisory Group of the U.S. House of Representatives (House) has moved to dismiss Plaintiffs claims for (1) lack of standing; (2) failure to state an equal protection claim; and (3) failure to state a substantive due process claim. See Mem. of [House] in Supp. of Mot. to Dismiss (Oct. 22, 2012) (ECF No. 62) (House Mem.). Neither Plaintiffs nor the Executive Branch defendants offer any persuasive reasons why the Houses Motion to Dismiss should be denied. See Pls. Oppn to [House]s Mot. to Dismiss (Oct. 30, 2012) (ECF No. 71) (Pls. Oppn); [Exec. Br.] Defs. Oppn to the [House]s Mot. to Dismiss (Nov. 1, 2012) (ECF No. 75) (Exec. Br. Defs. Oppn).

Case 8:12-cv-01137-CBM-AJW Document 85

Filed 11/06/12 Page 3 of 14 Page ID #:1919

1 2 I. 3 Plaintiffs Lack Standing.

ARGUMENT

The Plaintiffs and Executive Branch defendants have no persuasive response

4 to the Houses arguments regarding Plaintiffs lack of standing, as explained in the 5 Houses separate reply to the Executive Branch defendants opposition. See Reply 6 to Exec. Br. Defs. Oppn and in Supp. of [Houses] Mot. to Dismiss at 2-4 (Nov. 7 6, 2012) (Reply to Exec. Br. Defs.). 8 II. 9 10 Plaintiffs Equal Protection Claim Fails. A. Baker and Adams Control Here. 1. Baker. Baker v. Nelson, 409 U.S. 810 (1972), is binding

11 precedent for the proposition that a State does not violate the Equal Protection 12 Clause of the Fourteenth Amendment by defining marriage as between one man 13 and one woman. See House Mem. at 8-11. 14 Plaintiffs baldly assert that Baker is not controlling because Baker involved a 15 state and not a federal law. See Pls. Oppn at 2-4. Such a distinction is irrelevant, 16 however, given that the Supreme Court has made perfectly clear that equal 17 protection applies to the State and federal governments in exactly the same way. See 18 Adarand Constructors, Inc. v. Pea, 515 U.S. 200, 217, 115 S. Ct. 2097, 132 L. Ed. 19 2d 158 (1995) ([T]he [Supreme] Court stated explicitly that [t]his Courts 20 approach to Fifth Amendment equal protection claims [i.e., claims implicating 21 federal laws] has always been precisely the same as to equal protection claims 22 under the Fourteenth Amendment [i.e., claims implicating state laws]. (quoting 23 Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n.2, 95 S. Ct. 1225, 43 L. Ed. 2d 514 24 (1975))). Because the statute in Baker involved a complete denial of marital status 25 well beyond what DOMA does Baker applies a fortiori here. 26 In trying to distinguish Baker from the instant case, Plaintiffs also argue that 27 once any state grants a same-sex couple a marriage certificate, that grant creates an 28 2

Case 8:12-cv-01137-CBM-AJW Document 85

Filed 11/06/12 Page 4 of 14 Page ID #:1920

1 equal protection obligation for the federal government to recognize the relation as a 2 marriage for federal law purposes. Pls. Oppn at 2. In other words, in Plaintiffs 3 view, the Constitution gives the States the power to define the concept of 4 marriage, not only for purposes of their own law, but for purposes of federal law 5 as well. This turns our federal system upside down and is wholly untenable. See 6 U.S. Const. art. VI, cl. 2 (This Constitution, and the Laws of the United States . . . 7 shall be the supreme Law of the Land . . . .). 8 Plaintiffs final suggestion that Baker may have been deprived of its binding 9 force by subsequent legal developments, see Pls. Oppn at 4-5 & nn.4-5, is 10 similarly incorrect. The House is aware of no instance in which the Supreme Court 11 has approved a lower court sidestepping one of the Supreme Courts precedents 12 whether a summary disposition or otherwise on this basis. Cf. Rodriguez de 13 Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484, 109 S. Ct. 1917, 104 L. 14 Ed. 2d 526 (1989). Indeed, in Lawrence v. Texas, 539 U.S. 558, 578, 123 S. Ct. 15 2472, 156 L. Ed. 2d 508 (2003) the last of the supposed developments cited by 16 Plaintiffs on this point the Supreme Court expressly disclaimed any ruling on 17 whether the government must give formal recognition to any relationship that 18 homosexual persons seek to enter. Id.; cf. id. at 585 (OConnor, J., concurring) 19 (preserving the traditional institution of marriage is a legitimate state interest). 20 Clearly, therefore, the Supreme Court itself does not regard the unconstitutionality 21 of traditional-marriage statutes to have been superseded by intervening doctrinal 22 developments since Baker. In short, the lower courts are bound by summary 23 decisions by [the Supreme] Court until such time as the Court informs them that 24 they are not, Hicks v. Miranda, 422 U.S. 332, 344-45, 95 S. Ct. 2281, 45 L. Ed. 25 2d 223 (1975) (internal quotation marks and parentheses omitted), and the 26 Supreme Court pointedly has refrained from contradicting the decision in Baker. 27 Accordingly, Baker is controlling here. 28 3

Case 8:12-cv-01137-CBM-AJW Document 85

Filed 11/06/12 Page 5 of 14 Page ID #:1921

The Executive Branch defendants suggestion that Baker is not binding on

2 this Court is wrong for all of the reasons that Plaintiffs disregard is wrong. See 3 Exec. Br. Defs. Oppn at 7 n.4. The Executive Branch defendants disregard is 4 particularly surprising in light of, and is belied by, their recent acknowledgments, in 5 the context of equal protection challenges to DOMA Section 3 and similar claims, 6 that, in fact, Baker is binding and definitively establishes that the federal 7 government may incorporate the traditional opposite-sex definition of marriage for 8 purposes of federal statutes. Def. [U.S.A.]s Notice of Mot. & Mot. to Dismiss; 9 Mem. of P. & A. in Supp. Thereof at 28, 29 n.10, Smelt v. United States, No. 8:0910 cv-00286 (C.D. Cal. June 11, 2009) (ECF No. 25); Mem. in Supp. of Fed. Defs. 11 Mot. to Dismiss at 6, Wilson v. Ake, No. 8:04-cv-01680 (M.D. Fla. Sept. 30, 2004) 12 (ECF No. 39); see also Def.-Intervenor [U.S.A.]s Notice of Mot. & Mot. for Summ. 13 J.; Mem. of P. & A. in Supp. Thereof at 10, Smelt v. Cnty. of Orange, No. 8:04-cv14 01042 (C.D. Cal. Dec. 6, 2004) (ECF No. 91), attached hereto as Exhibits A, B, & 15 C, respectively. 16 2. Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982). Adams 17 also establishes definitively that DOMA Section 3 does not violate equal 18 protection. See House Mem. at 11-12. Plaintiffs do not appear to contest seriously 19 this point, instead mostly limiting their discussion of Adams to the continuing 20 vitality of the Ninth Circuits interpretation of the INA (not to recognize same-sex 21 marriages) as opposed to the courts constitutional holding that this interpretation 22 comports with equal protection. But to the extent that Plaintiffs argue that DOMA 23 is unconstitutional because Attorney General Holder and todays USCIS no 24 longer hold the view relied upon by the Adams court, Pls. Oppn at 6, they are 25 plainly wrong. In our system of government, the Attorney General does not have 26 the authority to overturn a decision of the Ninth Circuit that power is reserved to 27 the Ninth Circuit en banc and the Supreme Court. Plaintiffs have challenged 28 4

Case 8:12-cv-01137-CBM-AJW Document 85

Filed 11/06/12 Page 6 of 14 Page ID #:1922

1 DOMAs constitutionality, and the issue for this Court is whether Adams is binding 2 precedent on that constitutional question. It is.1 See also United States v. Doe, 324 3 F.3d 1057, 1061 (9th Cir. 2003) (citing Murray v. Cable Natl Broad. Co., 86 F.3d 4 858, 860 (9th Cir. 1996) (holding only panel sitting en banc may overturn existing 5 Ninth Circuit precedent)); Twentieth Century Fox Film Corp. v. Entmt Distrib., 6 429 F.3d 869, 877 (9th Cir. 2005) (quoting Palmer v. Sanderson, 9 F.3d 1433, 7 1437 n.5 (9th Cir. 1993) (As a general rule, a panel not sitting en banc may not 8 overturn circuit precedent.)). 9 The Executive Branch defendants argument that Adams relied heavily on 8 10 U.S.C. 118[2](a)(4) . . . [which] was repealed in 1990 fares no better. Exec. Br. 11 Defs. Oppn at 6.2 Although Adams mentioned 1182(a)(4) in passing, it 12 certainly did not rely heavily on that provision in reaching its constitutional 13 conclusion, and the repeal of that provision does not undercut Adamss holding 14 the Executive Branch defendants do not even begin to explain why, if the spousal 15 definition in the INA was constitutional before the repeal of an entirely different 16 immigration provision, its constitutionality would suddenly become an open 17 question again after that repeal. And the Executive Branch defendants opinion 18 that the rationales underlying the Adams Courts actual constitutional holding are 19 antiquated, id., does not change the binding nature of Adams only the adoption 20 of that view by the en banc Ninth Circuit or the Supreme Court could accomplish 21 22 23 24 25 26 27 28 5
In a recent Central District of California case, Lui v. Holder, No. 2:11-cv-01267 (C.D. Cal.), the court considered a DOMA Section 3 equal protection challenge in the immigration context. The court there relied on Adams to dismiss the DOMA Section 3 challenge thereby directly rejecting Plaintiffs claims that Adams may be ignored. See In Chambers Order at 4, Lui v. Holder, No. 2:11-cv-01267 (C.D. Cal. Sept. 28, 2011) (ECF No. 38) (Lui Order) (To the extent that Plaintiffs challenge Section 3 of DOMA on equal protection grounds, that issue has been decided by Adams.). Plaintiffs view as to what the law should be (as opposed to what the law actually is) does not make Adams any less binding in the Ninth Circuit. 2 Section 1184(a)(4) is nowhere mentioned in Adams, so we presume the Executive Branch defendants intended to refer to 1182(a)(4).
1

Case 8:12-cv-01137-CBM-AJW Document 85

Filed 11/06/12 Page 7 of 14 Page ID #:1923

1 that. While the Executive Branch defendants (like Plaintiffs) plainly disagree with 2 the holding in Adams, id., such disagreements do not make Adams any less binding 3 here. 4 5 6 7 8

B.

Rational Basis Review Governs, and DOMA Section 3 Satisfies That Standard. 1. Ninth Circuit Caselaw Forecloses Any Application of Heightened Scrutiny.

Plaintiffs argue that heightened scrutiny should apply despite controlling

9 Ninth Circuit authority applying rational basis review to sexual-orientation 10 classifications. See Witt v. Dept of Air Force, 527 F.3d 806 (9th Cir. 2008) 11 (reaffirming that rational basis review applies to sexual-orientation classifications 12 post-Lawrence); High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 13 563, 571 (1990) ([T]he district court erred in applying heightened scrutiny to the 14 regulations at issue and that the proper standard is rational basis review.). 15 Nevertheless, Plaintiffs assert that this Court should ignore that authority. But 16 Plaintiffs do not have the power to grant dispensations to this Courts obligation to 17 follow circuit precedent, and their invitation that this Court do so is an invitation to
3 18 error. Even the Executive Branch defendants now effectively acting as amicus 19 curiae with respect to Plaintiffs equal protection claims acknowledge that

20 existing circuit court authority requires rational basis review. Dept Oppn at 10 4 21 n.7. 22 23 24 25 26 27 28 6
3

See, e.g., Lui Order at 5 ([T]he prerogative to overturn Ninth Circuit precedent rests not with this District Court, but with the en banc Ninth Circuit and the Supreme Court. The Court feels bound by Ninth Circuit precedent, and believes that those precedents are sufficiently clear. (citations omitted)). 4 Because rational basis review clearly applies here, this Court has no obligation to consider the Executive Branch defendants (and the Plaintiffs) arguments that a heightened standard of scrutiny should apply. But even if this Court were free to consider those arguments (as it is not), it is clear that classifications based on sexual orientation do not satisfy the Supreme Courts test for heightened review. See [House]s Consolidated Reply to Pls. & the Exec. Br. Defs. Oppn to [House]s Mot. to Dismiss at 12-17, Lui v. Holder, No. 2:11-cv-01267 (C.D. Cal. Sept. 12,

Case 8:12-cv-01137-CBM-AJW Document 85

Filed 11/06/12 Page 8 of 14 Page ID #:1924

1 2

2.

DOMA Easily Satisfies Rational Basis.

The House previously has provided six rational bases for DOMA Section 3:

3 three uniquely federal bases and three that are justified by the same bases supporting 4 state traditional marriage statutes. See House Mem at 17-29.5 Nevertheless, 5 Plaintiffs contend that DOMA fails rational basis review (in addition to heightened 6 scrutiny). Pls. Oppn at 17-24. The proper question here is whether Congress had 7 non-arbitrary reasons to preserve the traditional definition of marriage for purposes 8 of allocating federal burdens and benefits.6 It did, and those reasons remain 9 rational today.7 10 11 12 13 a. Congress Was Justified in Acting with Caution When Faced with the Unknown Consequences of a Proposed Novel Redefinition of the Foundational Social Institution of Marriage.

Plaintiffs largely ignore the Houses argument that Congress was rational in

14 acting with caution when faced with a new and largely untested definition of 15 marriage. After all, when DOMA was enacted, no state permitted same-sex 16 marriage. The prior Congresses that enacted each and every one of the hundreds of 17 federal statutes using the words marriage and spouse did so on the 18 understanding that those words designated the historical definition of marriage. 19 2011) (ECF No. 35) (establishing why homosexuality has none of the characteristics of a suspect 20 or quasi-suspect class). 5 21 22 23 24 25 26 27 28 7
The Executive Branch, for its part, previously has conceded that such bases exist. See Letter from Eric H. Holder, Jr., Atty Gen., to John A. Boehner, Speaker, U.S. House of Representatives, at 6 (Feb. 23, 2011), attached to Notice to the Ct. (July 25, 2012) (ECF No. 5-2) (conceding that reasonable argument[s] for Section 3s constitutionality may be proffered under th[e] [rational basis] standard). 6 The majority panel in Windsor v. United States, Nos. 12-2335 & 12-2435, -- F.3d -- , 2012 WL 4937310 (2d Cir. Oct. 18, 2012) (cited by both Executive Branch defendants and Plaintiffs), was not constrained by existing circuit authority (like the Court is here) to find that rational basis review applies. Nevertheless, it did not dispute the position of Judge Straub, the dissenting judge on the panel, in finding that DOMA is rational. See id. at *6 (We therefore decline to join issue with the dissent, which explains why Section 3 of DOMA may withstand rational basis review.). 7 DOMA also would survive heightened scrutiny.

Case 8:12-cv-01137-CBM-AJW Document 85

Filed 11/06/12 Page 9 of 14 Page ID #:1925

1 DOMA codifies the definition of marriage universally accepted in American law 2 until just a few years ago. Undeniably, Congress very reasonably could find that 3 the institution is of central importance to civilized society. See, e.g., 150 Cong. 4 Rec. S7879 (daily ed. July 9, 2004) (Sen. Hatch) (traditional marriage has been a 5 civilizational anchor for thousands of years). Viewed in this light, Congress had a 6 supremely rational basis to proceed with caution in considering whether to drop a 7 criterion opposite-sex spouses that was the assumed baseline for hundreds of 8 federal statutes enacted by previous Congresses, and that historically has been an 9 essential element of such an enormously important social concept as marriage. 10 House Mem. at 19-21. Plaintiffs do not, because they cannot, dispute this. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 b. Congress Rationally Acted to Protect the Public Fisc and Preserve the Balance Struck by Earlier Congresses in Allocating Federal Burdens and Benefits.

Wholly apart from the broader debate about the definition of marriage, Congress had ample rational bases for preserving the traditional definition of marriage for the specific purpose of allocating federal burdens and benefits, which is all that Section 3 of DOMA addresses. In particular, by maintaining the traditional definition of marriage, Congress preserved both the public fisc and the legislative judgments of countless earlier Congresses that used terms like marriage and spouse with reference to traditional marriages and traditional marriages alone. Congress reasonably could have concluded that the corpus of existing federal statutes provides net benefits to married couples and so a more restricted definition of marriage would save money and preserve the federal fisc. Plaintiffs question whether DOMA really conserves the public fisc. But Congress was not required to show with specific evidence that DOMA definitely preserved the public fisc; it is enough that Congress could have believed this to be so. See, e.g., Heller v. Doe, 509 U.S. 312, 320, 113 S. Ct. 2637, 125 L. Ed. 2d 257

Case 8:12-cv-01137-CBM-AJW Document 85 Filed 11/06/12 Page 10 of 14 Page ID #:1926

1 (1993) (government has no obligation to produce evidence to sustain the 2 rationality of a statutory classification); FCC v. Beach Commcns, 508 U.S. 307, 3 315, 113 S. Ct. 2096, 124 L. Ed. 2d 211 ([A] legislative choice is not subject to 4 courtroom fact-finding and may be based on rational speculation unsupported by 5 evidence or empirical data.). Plaintiffs also suggest that granting the specific 6 relief they seek would not cost the government any money; but this also misses the 7 mark since certainly Ms. DeLeons adjustment of alien status would entitle her to 8 certain benefits from the public fisc. 9 Plaintiffs final argument that DOMA is . . . a benefit withdrawal in the 10 sense that it eliminated longstanding federal recognition of all marriages lawful 11 under state law (emphasis in original) is plainly wrong. See Pls. Oppn at 20; see 12 also House Mem at 2 n.2 (discussing Congresss history of limiting marriage for 13 purposes of federal law); id. at 5 n.5. 8 14 15 16 c. Congress Desired to Preserve Nationwide Uniformity in the Allocation of Federal Marital Benefits and Duties.

Plaintiffs offer no persuasive response to the Houses observation that

17 DOMA is supported by a desire to maintain a uniform federal definition of 18 marriage in light of the variations in state definitions that appeared likely to emerge 19 at the time of DOMAs passage and that subsequently have emerged. See House 20 Mem. at 17-19. Plaintiffs claim that DOMA is irrational because it focused only 21 on what has become the most substantial disuniformity among states in the 22 definition of marriage, rather than also addressing every other possible 23 disuniformity, no matter how trivial. Pls. Oppn at 18-19. But that is not the test: 24 The government is free to address one policy issue without simultaneously 25 addressing all other relevant issues. 26
8

27 Plaintiffs utterly fail to analyze why they believe DOMA qualifies (which it does not). 28 9

Plaintiffs try to claim that DOMA involves an invidious classification. Pls. Oppn at 20.

Case 8:12-cv-01137-CBM-AJW Document 85 Filed 11/06/12 Page 11 of 14 Page ID #:1927

1 2

d.

Common Federal-State Interests.

Plaintiffs take issue with the Houses contention that the traditional

3 definition of marriage which incentivizes opposite-sex couples who may have 4 children unintentionally to raise those children in a stable married relationship 5 draws a non-arbitrary line. Pls. Oppn at 21-22. But Plaintiffs merely argue the 6 non sequitar that having children is not a precondition of marriage, id. at 23, and 7 that DOMA is [not] rationally or substantially related to accomplishing this 8 objective, id. However, as a doctrinal matter, the only requirement under rational 9 basis review is that the line drawn by DOMA be non-arbitrary: Even if the 10 classification . . . is to some extent both underinclusive and overinclusive, and 11 hence the line drawn by Congress imperfect, it is nevertheless the rule that in a 12 case like this perfection is by no means required. Vance v. Bradley, 440 U.S. 93, 13 10899 S. Ct. 939, 59 L. Ed. 2d 171 (1979) (internal quotation marks omitted). And 14 if, as Plaintiffs concede, recognizing and regulating same-sex relationships as 15 marriages has nothing to do with Congresss goal of ensuring that the only kind of 16 potentially procreative sexual activity is directed into stable long-term 17 relationships, then it manifestly is rational for Congress to decide not to extend 18 regulation to them. 19 III. Plaintiffs Substantive Due Process Claim Fails. 20 The Plaintiffs have no persuasive response to the Houses arguments 21 regarding Plaintiffs failure to state a substantive due process claim, as explained in 22 the Houses separate reply to the Executive Branch defendants opposition. See 23 Reply to Exec. Br. Defs. at 4-6. 24 25 26 27 28 10 CONCLUSION This Court should grant the Houses motion to dismiss.

Case 8:12-cv-01137-CBM-AJW Document 85 Filed 11/06/12 Page 12 of 14 Page ID #:1928

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 November 6, 2012

Respectfully submitted, By: /s/ Paul D. Clement Paul D. Clement BANCROFT PLLC9 Counsel for Intervenor-Defendant10

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. 10 The Bipartisan Legal Advisory Group, which speaks for the House in litigation matters, 25 currently is comprised of the Honorable John A. Boehner, Speaker of the House, the Honorable 26 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 27 Democratic Leader and Democratic Whip decline to support the filing of this reply.

24

28

Case 8:12-cv-01137-CBM-AJW Document 85 Filed 11/06/12 Page 13 of 14 Page ID #:1929

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

CERTIFICATE OF SERVICE I hereby certify that on November 6, 2012, I electronically filed the foregoing Reply to Plaintiffs Opposition and in Support of Intervenor-Defendant the Bipartisan Legal Advisory Group of the United States House of Representatives Motion to Dismiss with the Clerk of Court by using the CM/ECF system, which provided an electronic notice and electronic link of the same to the following attorneys of record through the Courts CM/ECF system: Peter A. Schey, Esq. Carlos Holguin, 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

Case 8:12-cv-01137-CBM-AJW Document 85 Filed 11/06/12 Page 14 of 14 Page ID #:1930

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

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

Case 8:12-cv-01137-CBM-AJW Document 85-1 #:1931

Filed 11/06/12 Page 1 of 55 Page ID

Exhibit A

Case 8:09-cv-00286-DOC-MLG Document 2585-1 Filed 11/06/12 Page 2 of 55 Page ID Case 8:12-cv-01137-CBM-AJW Document Filed 06/11/09 Page 1 of 54 Page ID #:100 #:1932

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

TONY WEST Assistant Attorney General JAMES J. GILLIGAN Assistant Director W. SCOTT SIMPSON Senior Trial Counsel Department of Justice Civil Division, Room 7210 Federal Programs Branch Post Office Box 883 Washington, D.C. 20044 Telephone: (202) 514-3495 Fax: (202) 616-8470 E-mail: [email protected] ATTORNEYS FOR DEFENDANT UNITED STATES OF AMERICA

IN THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA SOUTHERN DIVISION ARTHUR SMELT and CHRISTOPHER HAMMER, Plaintiffs, v. UNITED STATES OF AMERICA, STATE OF CALIFORNIA, and DOES 1 through 1,000, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) )

CASE NO. SACV09-00286 DOC (MLGx) DEFENDANT UNITED STATES OF AMERICA'S NOTICE OF MOTION AND MOTION TO DISMISS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Date: August 3, 2009 Time: 8:30 a.m.

PLEASE TAKE NOTICE that on Monday, August 3, 2009, at 8:30 a.m., or as soon 22 thereafter as counsel may be heard, the defendant United States of America, by its undersigned 23 counsel, will move for dismissal of this action. The hearing will take place before United States 24 District Judge David O. Carter, in Courtroom 9D of the Ronald Reagan Federal Building and U.S. 25 Courthouse, 411 West Fourth Street, Santa Ana, California. 26 The defendant United States of America will move to dismiss all of plaintiffs' claims against 27 the federal Defense of Marriage Act, under Rule 12 of the Federal Rules of Civil Procedure, on the 28

Case 8:09-cv-00286-DOC-MLG Document 2585-1 Filed 11/06/12 Page 3 of 55 Page ID Case 8:12-cv-01137-CBM-AJW Document Filed 06/11/09 Page 2 of 54 Page ID #:101 #:1933

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

grounds that this Court lacks jurisdiction over plaintiffs' claims against the United States, given that the State court from which this action was removed lacked such jurisdiction; that plaintiffs lack standing to assert their claims against the United States; and that plaintiffs have failed to state a claim on which relief can be granted. The motion of the United States will be based on this Notice, the following Memorandum of Points and Authorities, the pleadings and files in this action, such matters of which the Court may take judicial notice, and such oral argument as may take place at the time of the hearing. This motion is made following the conference of counsel pursuant to L.R. 7-3 which took place on June 4, 2009. Dated: June 11, 2009 Respectfully submitted, TONY WEST Assistant Attorney General JAMES J. GILLIGAN Assistant Director /s/ W. Scott Simpson ____________________________ W. SCOTT SIMPSON Senior Trial Counsel Attorneys, Department of Justice Federal Programs Branch Civil Division, Room 7210 Post Office Box 883 Washington, D.C. 20044 Telephone: (202) 514-3495 Fax: (202) 616-8470 E-mail: [email protected] COUNSEL FOR DEFENDANT UNITED STATES OF AMERICA

Case 8:09-cv-00286-DOC-MLG Document 2585-1 Filed 11/06/12 Page 4 of 55 Page ID Case 8:12-cv-01137-CBM-AJW Document Filed 06/11/09 Page 3 of 54 Page ID #:102 #:1934

1 2 3 4 5 6 7

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT UNITED STATES OF AMERICA'S MOTION TO DISMISS

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATUTORY BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

8 9 10 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 11 12 13 II. 14 15 16 17 18 19 D. 20 21 22 A. 23 B. 24 25 26 27 28 i IV. V. Section 2 Was Enacted Under Congress's Authority to Prescribe the "Effect" of One State's Acts in Other States . . . . . . . . . . . . . . . . . . . . . . 19 Section 2 is Consistent With Common Law Conflicts Principles . . . . . . . . . 16 III. Plaintiffs Cannot Establish Standing to Seek Certain Sweeping Relief Requested in Their Complaint . . . . . . . . . . . . . . . . . . . . . . 14 C. Plaintiffs' Claims and Allegations Against the United States Must Be Dismissed for Lack of Standing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 A. B. The Case or Controversy Requirement of Article III . . . . . . . . . . . . . . . . . . 11 Plaintiffs Lack Standing to Challenge DOMA's Reservation of the States' Authority Regarding Recognition of Same-Sex Marriages Performed in Other States . . . . . . . . . . . . . . . . . . . . . . 12 Plaintiffs Lack Standing to Challenge the Definitions of "Marriage" and "Spouse" Under Federal Law . . . . . . . . . . . . . . . . . . . . . 13 I. This Court Lacks Jurisdiction Over Plaintiffs' Claims Against the United States Because the State Court Lacked Jurisdiction . . . . . . . . . . . . . . . . . 9 PROCEDURAL HISTORY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

DOMA Is a Valid Exercise of Congress's Power under the Full Faith and Credit Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

DOMA Cannot Be Said to Violate an Asserted "Right to Travel" . . . . . . . . . . . . . . 21 DOMA Is Consistent with Equal Protection and Due Process Principles . . . . . . . . . 22 A. Federal Courts Have Unanimously Upheld the Constitutionality of DOMA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Case 8:09-cv-00286-DOC-MLG Document 2585-1 Filed 11/06/12 Page 5 of 55 Page ID Case 8:12-cv-01137-CBM-AJW Document Filed 06/11/09 Page 4 of 54 Page ID #:103 #:1935

1 2

B. C.

DOMA Does Not Impinge Upon Rights That Have Been Recognized as Fundamental . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 DOMA Does Not Rest on a Suspect Classification . . . . . . . . . . . . . . . . . . . . 30 DOMA Satisfies Rational-Basis Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

3 D. 4 VI. 5 VII. 6 VIII. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ii CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 DOMA Cannot Be Said to Infringe Upon any "Right" under the Ninth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 DOMA Cannot Be Said to Infringe Upon any Rights of Speech . . . . . . . . . . . . . . . 39 DOMA Does Not Violate the Right to Privacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Case 8:09-cv-00286-DOC-MLG Document 2585-1 Filed 11/06/12 Page 6 of 55 Page ID Case 8:12-cv-01137-CBM-AJW Document Filed 06/11/09 Page 5 of 54 Page ID #:104 #:1936

1 2 3 4 5 6 CASES 7 CONSTITUTION

TABLE OF AUTHORITIES

page(s)

U.S. Const. art. III, 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 U.S. Const. art. IV, 1, cl. 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24,30 8 Agostini v. Felton, 521 U.S. 203, 117 S. Ct. 1997, 138 L.Ed.2d 391 (1997) . . . . . . . . . . . . . . . . . . 30 9 10 11 12 13 14 15 16 17 Baker v. Nelson, 409 U.S. 810, 93 S. Ct. 37, 34 L.Ed.2d 65 (1972) (mem) . . . . . . . . . . . . . . 28,29,38 18 Baker v. Vermont, 744 A.2d 864 (Vt. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 19 Bank of Augusta v. Earle, 38 U.S. (13 Pet.) 519, 10 L. Ed. 274 (1839) . . . . . . . . . . . . . . . . . . . . . . 17 20 Barefoot v. City of Wilmington, 306 F.3d 113, 123 (4th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . 35 21 Bigelow v. Virginia, 421 U.S. 809, 95 S. Ct. 2222, 44 L.Ed.2d 600 (1975) . . . . . . . . . . . . . . . . . . . 11 22 Bishop v. Oklahoma, 447 F. Supp. 2d 1239 (N.D. Okla. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 23 Brown v. Hot, Sexy and Safer Productions, Inc., 68 F.3d 525 (1st Cir. 1995) . . . . . . . . . . . . . . . . . 38 24 Butler v. Apfel, 144 F.3d 622 (9th Cir.1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34,36 25 Califano v. Gautier Torres, 435 U.S. 1, 98 S. Ct. 906, 55 L.Ed.2d 65 (1978) . . . . . . . . . . . . . . . . . . 23 26 Catalano v. Catalano, 170 A.2d 726 (Conn. 1961) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 27 Church of Amer. Knights of the Ku Klux Klan v. Kerik, 356 F.3d 197 (2d Cir. 2004) . . . . . . . . . . 40 28 iii Alaska Packers Ass'n v. Industrial Accident Comm'n, 294 U.S. 532, 55 S. Ct. 518, 79 L. Ed. 1044 (1935) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17,22 Aleman v. Glickman, 217 F.3d 1191 (9th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 Allen v. Wright, 468 U.S. 737, 104 S. Ct. 3315, 82 L.Ed.2d 556 (1984) . . . . . . . . . . . . . . . . . . . . . 12 Arcara v. Cloud Books, Inc., 478 U.S. 697, 106 S. Ct. 3172, 92 L.Ed.2d 568 (1986) . . . . . . . . . . . 40 Artichoke Joe's Cal. Grand Casino v. Norton, 353 F.3d 712 (9th Cir. 2003) . . . . . . . . . . . . . . . . . . 35 Baehr v. Lewin, 852 P.2d 44 (Haw. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,24 Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971), appeal dismissed, 409 U.S. 810, 93 S. Ct. 37, 34 L.Ed.2d 65 (1972) (mem) . . . . . . . . . . . . . . . . . . . 24,29,32,37

Case 8:09-cv-00286-DOC-MLG Document 2585-1 Filed 11/06/12 Page 7 of 55 Page ID Case 8:12-cv-01137-CBM-AJW Document Filed 06/11/09 Page 6 of 54 Page ID #:105 #:1937

1 2 3 4

Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . 23 Dean v. District of Columbia, 653 A.2d 307, 331-33, 362-64 (D.C. 1995) . . . . . . . . . . . . . . . . 24,32 DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 109 S. Ct. 998, 103 L.Ed.2d 249 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Dittman v. California, 191 F.3d 1020 (9th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

5 6 7 8 In re Elko County Grand Jury, 109 F.3d 554 (9th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 9 Ellis v. Anderson, 901 S.W. 2d 46, 47-48 (Ky. Ct. App. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 10 FBI v. Superior Court of Cal., 507 F. Supp. 2d 1082 (N.D. Cal. 2007) . . . . . . . . . . . . . . . . . . . . . . . 9 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FCC v. Beach Communications, Inc., 508 U.S. 307, 113 S. Ct. 2096, 124 L. Ed. 2d 211 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Froehlich v. Wisconsin Dep't of Corrections, 196 F.3d 800 (7th Cir. 1999) . . . . . . . . . . . . . . . . . . . 42 FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 110 S. Ct. 596, 107 L.Ed.2d 603 (1990) . . . . . . . . 12 Glass v. National R.R. Passenger Corp., 570 F. Supp. 2d 1180 (C.D. Cal. 2008) . . . . . . . . . . . . 9,10 Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941 (Mass. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L.Ed.2d 510 (1965) . . . . . . . . . . . . . . . 37 Grummett v. Rushen, 779 F.2d 491 (9th Cir. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Harris v. McRae, 448 U.S. 297, 100 S. Ct. 2671, 65 L.Ed.2d 784 (1980) . . . . . . . . . . . . . . . . . . . . 28 Hassan v. Wright, 45 F.3d 1063 (7th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 Heller v. Doe, 509 U.S. 312, 113 S. Ct. 2637, 125 L.Ed.2d 257 (1993) . . . . . . . . . . . . . . . . . . . 32,33 Hicks v. Miranda, 422 U.S. 332, 343-44, 95 S. Ct. 2281, 45 L.Ed.2d 223 (1975) . . . . . . . . . . . 29,38 High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563 (9th Cir. 1990) . . . . . . . . 31 Hilton v. Guyot, 159 U.S. 113, 16 S. Ct. 139, 40 L. Ed. 95 (1895) . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Hong Kong Supermarket v. Kizer, 830 F.2d 1078 (9th Cir. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . 15 James v. City of Long Beach, 18 F. Supp. 2d 1078 (C.D. Cal. 1998) . . . . . . . . . . . . . . . . . . . . . 39,40 Jenkins v. Commissioner, 483 F.3d 90 (2d Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Kahawaiolaa v. Norton, 386 F.3d 1271 (9th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 iv Duke Power Co. v. Carolina Envt'l Study Group, Inc., 438 U.S. 59, 98 S. Ct. 2620, 57 L.Ed.2d 595 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 124 S. Ct. 2301, 2309, 159 L.Ed.2d 98 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11,15

Case 8:09-cv-00286-DOC-MLG Document 2585-1 Filed 11/06/12 Page 8 of 55 Page ID Case 8:12-cv-01137-CBM-AJW Document Filed 06/11/09 Page 7 of 54 Page ID #:106 #:1938

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

In re Kandu, 315 B.R. 123 (Bankr. W. D. Wash. 2004), appeal dismissed Kandu v. United States Trustee, Case No. 3:04-cv-05544-FDB (W.D. Wash.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24,31,32,36,38 Kerrigan v. Comm'r of Pub. Health, 957 A.2d 407 (Conn. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Lavine v. Milne, 424 U.S. 577, 96 S. Ct. 1010, 47 L.Ed.2d 249 (1976) . . . . . . . . . . . . . . . . . . . . . . 27 Lawrence v. Texas, 539 U.S. 558, 123 S. Ct. 2472, 156 L.Ed.2d 508 (2003) . . . . . . . . . . . . . 25,38,39 Lofton v. Secretary of Dep't of Children & Family Servs., 358 F.3d 804 (11th Cir. 2004) . . . . . . . 23 Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) . . . . . . . . . . . . . . . . . . . . . 32 Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S. Ct. 2130, 119 L.Ed.2d 351 (1992) . . . . . . . . 11 Lyng v. Automobile Workers, 485 U.S. 360, 108 S. Ct. 1184, 99 L.Ed.2d 380 (1987) . . . . . . . . . . 28 Medeiros v. Vincent, 431 F.3d 25 (1st Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Mandel v. Bradley, 432 U.S. 173, 97 S. Ct. 2238, 53 L.Ed.2d 199 (1977) . . . . . . . . . . . . . . . . . . . . 30 Massachusetts v. EPA, 549 U.S. 497, 127 S. Ct. 1438, 167 L.Ed.2d 248 (2007) . . . . . . . . . . . . . . . 34 McConnell v. Nooner, 547 F.2d 54, 56 (8th Cir. 1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 McElmoyle ex rel. Bailey v. Cohen, 38 U.S. (13 Pet.) 312, 10 L. Ed. 177 (1839) . . . . . . . . . . . 19,20 Miller v. Stauffer Chem. Co., 581 P.2d 345 (Idaho 1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Mills v. Duryee, 11 U.S. (7 Cranch) 481, 3 L. Ed. 411 (1813) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Mixon v. Ohio, 193 F.3d 389 (6th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Moore v. Detroit School Reform Bd., 293 F.3d 352 (6th Cir 2002) . . . . . . . . . . . . . . . . . . . . . . . . . 35 In re Mortenson's Estate, 316 P.2d 1106 (Ariz. 1957) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Morton v. Mancari, 417 U.S. 535, 94 S. Ct. 2474, 41 L.Ed.2d 290 (1974) . . . . . . . . . . . . . . . . . . . 35 National Ass'n for Advancement of Psychoanalysis v. California Bd. of Psychology, 228 F.3d 1043 (9th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22,26 Nebraska v. Bentson, 146 F.3d 676 (9th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

23 Nevada v. Hall, 440 U.S. 410, 99 S. Ct. 1182, 59 L.Ed.2d 416 (1979) . . . . . . . . . . . . . . . . . . . . 17,22 24 Newbury v. Prisoner Review Bd., 791 F.2d 81 (7th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 25 New State Ice Co. v. Liebmann, 285 U.S. 262, 52 S. Ct. 371, 76 L.Ed. 747 (1932) . . . . . . . . . . . . . 1 26 Nordyke v. King, 319 F.3d 1185 (9th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 27 28 Pacific Employers Ins. Co. v. Industrial Accident Comm'n, 306 U.S. 493, 59 S. Ct. 629, 83 L. Ed. 940 (1939) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 v

Case 8:09-cv-00286-DOC-MLG Document 2585-1 Filed 11/06/12 Page 9 of 55 Page ID Case 8:12-cv-01137-CBM-AJW Document Filed 06/11/09 Page 8 of 54 Page ID #:107 #:1939

1 2 3 4 5 6 7 8 9

Palmer v. City Nat'l Bank, 498 F.3d 236 (4th Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Paul v. Davis, 424 U.S. 693, 96 S. Ct. 1155, 47 L.Ed.2d 405 (1976) . . . . . . . . . . . . . . . . . . . . . . . . 38 Personnel Adm'r v. Feeney, 442 U.S. 256, 99 S. Ct. 2282, 60 L.Ed.2d 870 (1979) . . . . . . . . . . . . . 32 Powelson v. United States, 150 F.3d 1103 (9th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Raines v. Byrd, 521 U.S. 811, 117 S. Ct. 2312, 138 L.Ed.2d 849 (1997) . . . . . . . . . . . . . . . . . . . . . 11 Reno v. Flores, 507 U.S. 292, 113 S. Ct. 1439, 123 L.Ed.2d 1 (1993). . . . . . . . . . . . . . . . . . . . . . . 26 Richardson v. City & County of Honolulu, 124 F.3d 1150 (9th Cir. 1997) . . . . . . . . . . . . . . . . . . . 25 Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 109 S. Ct. 1917, 104 L.Ed.2d 526 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L.Ed.2d 147 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . 38

10 Romer v. Evans, 517 U.S. 620, 116 S. Ct. 1620, 134 L.Ed.2d 855 (1996) . . . . . . . . . . . . . . . . . 24,25 11 Roulette v. City of Seattle, 97 F.3d 300 (9th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40,41 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Rumsfeld v. Forum for Academic & Inst'l Rights, 547 U.S. 47, 126 S. Ct. 1297, 164 L.Ed.2d 156 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39,40 Rust v. Sullivan, 500 U.S. 173, 111 S. Ct. 1759, 114 L.Ed.2d 233 (1991) . . . . . . . . . . . . . . . . . . . . 28 Saenz v. Roe, 526 U.S. 489, 119 S. Ct. 1518, 143 L.Ed.2d 689 (1999) . . . . . . . . . . . . . . . . . . . . . . 21 Salveson v. Western States Bankcard Ass'n, 731 F.2d 1423 (9th Cir. 1984) . . . . . . . . . . . . . . . . . . . 9 Samuels v. New York State Dep't of Health, 811 N.Y.S.2d 136, 146-47 (N.Y. App. Div. 2006) San Diego County Gun Rights Comm. v. Reno, 98 F.3d 1121 (9th Cir. 1996) . . . . . . . . . . . . . . . . 41 Schowengerdt v. United States, 944 F.2d 483 (9th Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 SEC v. Chenery Corp., 332 U.S. 194, 67 S. Ct. 1575, 91 L.Ed. 1995 (1947) . . . . . . . . . . . . . . . . . . 34 Shapiro v. Thompson, 394 U.S. 618, 89 S. Ct. 1322, 22 L.Ed.2d 600 (1969) . . . . . . . . . . . . . . . . . 21 Shaw v. Oregon Public Employees' Retirement Bd., 887 F.2d 947 (9th Cir. 1989) . . . . . . . . . . . . . 33 Shields v. Burge, 874 F.2d 1201 (7th Cir. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Singer v. Hara, 522 P.2d 1187 (Wash. Ct. App. 1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Smelt v. County of Orange, 374 F. Supp. 2d 861 (C.D. Cal. 2005) . . . . . . . . . . . . . . . . 7,11,13,24,41 Smelt v. County of Orange, 447 F.3d 673 (9th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . 7,8,11,14,41 Squaw Valley Dev. Co. v. Goldberg, 375 F.3d 936 (9th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . 25 Standhardt v. Superior Court, 77 P.3d 451 (Ariz. Ct. App. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 vi

Case 8:09-cv-00286-DOC-MLG Document 25 Filed 06/11/09 Page 9 of10 of Page ID #:108 Case 8:12-cv-01137-CBM-AJW Document 85-1 Filed 11/06/12 Page 54 55 Page ID #:1940

1 2

Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 118 S. Ct. 1003, 140 L.Ed.2d 210 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11,14 Strandberg v. City of Helena, 791 F.2d 744 (9th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

3 Strauss v. Horton, 207 P.3d 48 (Cal. May 26, 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 4 Sun Oil Co. v. Wortman, 486 U.S. 717, 108 S. Ct. 2117, 100 L.Ed.2d 743 (1988) . . . . . . . . 17,18,20 5 Texas v. Johnson, 491 U.S. 397, 109 S. Ct. 2533, 105 L.Ed.2d 342 (1989) . . . . . . . . . . . . . . . . . . . 40 6 United States v. Choate, 576 F.2d 165 (9th Cir. 1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 7 United States v. Deters, 143 F.3d 577 (10th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 8 United States v. Hays, 515 U.S. 737, 115 S. Ct. 2431, 132 L.Ed.2d 635 (1995) . . . . . . . . . . . . . . . 15 9 10 11 12 13 14 15 16 Whitmore v. Arkansas, 495 U.S. 149, 110 S. Ct. 1717, 109 L.Ed.2d 135 (1990) . . . . . . . . . . . . 11,21 17 Wilkins v. Zelichowski, 140 A.2d 65 (N.J. 1958) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 18 Williams v. Attorney Gen. of Ala., 378 F.3d 1232 (11th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . 26 19 Williams v. North Carolina, 317 U.S. 287, 63 S. Ct. 207, 87 L. Ed. 279 (1942) . . . . . . . . . . . . . . . 17 20 Willis v. Town of Marshall, N.C., 426 F.3d 251 (4th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 21 Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . 24,30,31,38 22 Yorkshire v. IRS, 829 F. Supp. 1198 (C.D. Cal. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 23 Zablocki v. Redhail, 434 U.S. 374, 98 S. Ct. 673, 54 L.Ed.2d 618 (1978) . . . . . . . . . . . . . . . . . . . . 28 24 25 26 27 28 STATUTES AND LEGISLATIVE HISTORY 1 U.S.C. 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,23 28 U.S.C. 1257(2) (repealed 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 28 U.S.C. 1441 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 vii United States R.R. Retirement Bd. v. Fritz, 449 U.S. 166, 101 S. Ct. 453, 66 L.Ed.2d 368 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Villegas v. City of Gilroy, 363 F. Supp. 2d 1207 (N.D. Cal. 2005) . . . . . . . . . . . . . . . . . . . . . . 40,41 Warth v. Seldin, 422 U.S. 490, 95 S. Ct. 2197, 45 L.Ed.2d 343 (1975) . . . . . . . . . . . . . . . . . . . . . . 12 Washington v. Glucksberg, 521 U.S. 702, 117 S. Ct. 2258, 138 L.Ed.2d 772 (1997) . . . . . . 26,32,36 Webster v. Reproductive Health Servs., 492 U.S. 490, 109 S. Ct. 3040, 106 L.Ed.2d 410 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Case 8:09-cv-00286-DOC-MLG Document 2585-1 Filed 11/06/12 Pageof 54 55 Page ID Case 8:12-cv-01137-CBM-AJW Document Filed 06/11/09 Page 10 11 of Page ID #:109 #:1941

1 2 3 4 5 6

28 U.S.C. 1442 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 28 U.S.C. 1442(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 28 U.S.C. 1738C . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,7,13,23 Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419 (1996) . . . . . . . . . . . . . . . . . . . . . . . 5 LD 1020, An Act To End Discrimination in Civil Marriage & Affirm Religious Freedom, 2009 Me. Legis. Serv. ch. 82 (West) . . . . . . . . . . . . . . . . . . . . . . 1 HB 436, An Act Relative to Civil Marriage & Civil Unions, 2009 N.H. Laws ch. 59 . . . . . . . . . . . . 1

7 8 9 10 REGULATIONS AND OTHER ADMINISTRATIVE MATERIALS 11 13 C.F.R. 127.303(b)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 12 31 C.F.R. 0.214(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 13 14 15 16 17 18 OTHER AUTHORITIES 19 The Federalist No. 42 (James Madison) (Clinton Rossiter ed., 1961) . . . . . . . . . . . . . . . . . . . . . . . . 19 20 Restatement (First) of Conflict of Laws 134 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 21 Restatement (Second) of Conflict of Laws 284 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 22 23 24 25 26 27 28 viii The White House, Office of Communications, President on Signing Same Gender Marriage Ban, 1996 WL 533626 (Sept. 22, 1996) . . . . . . . . . . . . . . . . . . . . . 35 Exec. Order No. 11,478, 34 Fed. Reg. 12,985 (Aug. 8, 1969), reprinted as amended in 42 U.S.C.A. 2000e note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Exec. Order No. 13,160, 65 Fed. Reg. 39,773 (June 23, 2000), reprinted in 42 U.S.C. 2000d note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 S. 115, An Act to Protect Religious Freedom & Recognize Equality in Civil Marriage, 2009 Vt. Acts & Resolves no. 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 H.R. Rep. No. 104-664, reprinted in 1996 U.S.C.C.A.N. 2905 . . . . . . . . . . . . . . . . . . 5-7,25,34,35,37

Case 8:09-cv-00286-DOC-MLG Document 2585-1 Filed 11/06/12 Pageof 54 55 Page ID Case 8:12-cv-01137-CBM-AJW Document Filed 06/11/09 Page 11 12 of Page ID #:110 #:1942

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

INTRODUCTION In recent years, several States have guaranteed gay and lesbian couples the freedom to marry as a basic civil right. See HB 436, An Act Relative to Civil Marriage & Civil Unions, 2009 N.H. Laws ch. 59; LD 1020, An Act To End Discrimination in Civil Marriage & Affirm Religious Freedom, 2009 Me. Legis. Serv. ch. 82 (West); S. 115, An Act to Protect Religious Freedom & Recognize Equality in Civil Marriage, 2009 Vt. Acts & Resolves no. 3; Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009); Kerrigan v. Comm'r of Pub. Health, 957 A.2d 407 (Conn. 2008); Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941 (Mass. 2003). Yet, as same-sex couples in these States have won what they understandably view as a vital personal right of surpassing importance to their happiness and well-being, other States have reaffirmed the traditional understanding of marriage as the union of a man and a woman as husband and wife, see Varnum, 763 N.W.2d at 878 n.5 an understanding held as a matter of profound moral and religious conviction by many of their citizens. This case does not call upon the Court to pass judgment, however, on the legal or moral right of same-sex couples, such as plaintiffs here, to be married. Plaintiffs are married, and their challenge to the federal Defense of Marriage Act ("DOMA") poses a different set of questions: whether by virtue of their marital status they are constitutionally entitled to acknowledgment of their union by States that do not recognize same-sex marriage, and whether they are similarly entitled to certain federal benefits. Under the law binding on this Court, the answer to these questions must be no. DOMA reflects a cautiously limited response to society's still-evolving understanding of the institution of marriage. Congress passed DOMA in 1996, at a time when States and their citizens were just beginning to address the legal status of same-sex marriage. Consistent with our federalist system, which allows each State to "serve as a laboratory[,] and try novel social and economic experiments without risk to the rest of the country," New State Ice Co. v. Liebmann, 285 U.S. 262, 311, 52 S. Ct. 371, 76 L.Ed. 747 (1932) (Brandeis, J., dissenting), DOMA does not address whether a same-sex couple may marry within the United States. Instead, it permits the citizens of each State to decide that question for themselves. To preserve the autonomy of the States in this area,

Case 8:09-cv-00286-DOC-MLG Document 2585-1 Filed 11/06/12 Pageof 54 55 Page ID Case 8:12-cv-01137-CBM-AJW Document Filed 06/11/09 Page 12 13 of Page ID #:111 #:1943

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

therefore, Section 2 of DOMA provides that each State may decide whether to recognize a same-sex marriage performed under the law of another State. Section 3, in turn, addresses the effects of new State definitions of marriage on federal programs that tie entitlement to certain benefits to married status. Congress had long conferred various financial and other benefits on the basis of marriage in light of the central role the institution has played in advancing a variety of societal interests. When States began to consider adopting historically novel forms of marriage, Congress took a wait-and-see approach. It codified, for purposes of federal benefits, a definition of marriage that all fifty states had adopted (i.e., that between a man and a woman) and continued to accord financial and other benefits on the basis of that historical definition. At the same time, it cautiously declined to extend federal benefits on the basis of a newer definition of marriage that no States had adopted at the time of DOMA's passage (and only a very small minority of States have since). Thus, by defining "marriage" and "spouse" as the legal union of a man and a woman and affording federal benefits on that basis, Section 3 of DOMA simply maintained the status quo: it continues the longstanding federal policy of affording federal benefits and privileges on the basis of a centuries-old form of marriage, without committing the federal government to devote scarce resources to newer versions of the institution that any State may choose to recognize. The plaintiffs in this case, a same-sex couple married under the laws of California, make a number of claims against DOMA. Specifically, they allege that Section 2 violates the Full Faith and Credit Clause and their "right to travel," that both sections of DOMA violate the Due Process Clause of the Fifth Amendment (including its equal protection component) and their "right to privacy," and that Section 3 violates their "right of free speech" and their "rights" under the Ninth Amendment. Plaintiffs initially filed this action in State court, and the defendant United States removed it to this Court. Rather than reaching the merits of these claims, the Court should dismiss this action for lack of subject matter jurisdiction, for two reasons. First, a federal court has no more jurisdiction in a removed case than did the State court before removal, and the United States was immune from suit

Case 8:09-cv-00286-DOC-MLG Document 2585-1 Filed 11/06/12 Pageof 54 55 Page ID Case 8:12-cv-01137-CBM-AJW Document Filed 06/11/09 Page 13 14 of Page ID #:112 #:1944

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

on plaintiffs' claims in State court. All claims against the United States should be dismissed on that basis alone. Second, even in absence of that principle, plaintiffs lack standing to challenge either Section 2 or Section 3 of DOMA. Plaintiffs lack standing to challenge Section 2, because they nowhere allege that they have actually been denied any rights or benefits under the laws of another State resulting from the refusal of that State to acknowledge their marital status. They lack standing as well to challenge Section 3 of DOMA, because they do not allege that the federal definitions of "marriage" and "spouse" in Section 3 have ever been applied to them for purposes of any federal law. Plaintiffs fail to allege that they have ever applied for any federal benefits that are available on the basis of married status let alone that they have been denied any as a result of DOMA. Because they have not been injured by Section 3's definitions, their challenge to this provision must be dismissed for lack of standing. On the merits, plaintiffs' claims that DOMA violates the Full Faith and Credit Clause and their "right to travel" both fail as a matter of law. In allowing each State to withhold its recognition of same-sex marriages performed in other jurisdictions, Congress was merely confirming longstanding conflict-of-laws principles in a valid exercise of its express power to settle such questions under the Full Faith and Credit Clause. That Clause ensures that each State retains the authority to decline to apply another State's law when it conflicts with its own public policies. DOMA is fully consistent with that constitutional principle, as it permits States to experiment with and maintain the exclusivity of their own legitimate public policies such as whether that State chooses to recognize or reject same-sex marriages. Similarly, in relation to plaintiffs' purported "right to travel" claim, DOMA simply does not impinge upon anyone's ability to travel among the States. Again, it merely permits each State to follow its own policy with respect to marriage. Plaintiffs' due process and equal protection claims also must be dismissed. Like all federal statutes, DOMA is entitled to a presumption of constitutionality. Because DOMA does not restrict any rights that have been recognized as fundamental or rely on any suspect classifications, it need not be reviewed with heightened scrutiny. Properly understood, the right at issue in this case is not a right to marry. After all, the federal government does not, either through DOMA or any other

Case 8:09-cv-00286-DOC-MLG Document 2585-1 Filed 11/06/12 Pageof 54 55 Page ID Case 8:12-cv-01137-CBM-AJW Document Filed 06/11/09 Page 14 15 of Page ID #:113 #:1945

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

federal statute, issue marriage licenses or determine the standards for who may or may not get married. Indeed, as noted above and as evidenced by the fact that plaintiffs have married in California DOMA in no way prohibits same-sex couples from marrying. Instead, the only right at issue in this case is a right to receive certain benefits on the basis of a same-sex marriage. No court has ever found such a right to federal benefits on that basis to be fundamental in fact, all of the courts that have considered the question have rejected such a claim. (And even if the right at issue in this case were the right to same-sex marriage, current Supreme Court precedent that binds this Court does not recognize such a right under the Constitution.) Likewise, DOMA does not discriminate, or permit the States to discriminate, on the basis of a suspect classification; indeed, the Ninth Circuit has held that sexual orientation is not a suspect classification. DOMA therefore must be analyzed under rational-basis review. Under the highly deferential rational basis standard, moreover, a court may not act as superlegislature, sitting in judgment on the wisdom or morality of a legislative policy. Instead, a legislative policy must be upheld so long as there is any reasonably conceivable set of facts that could provide a rational basis for it, including ones that the Congress itself did not advance or consider. DOMA satisfies this standard. Individuals are born into, or form, a broad spectrum of human relationships, founded in kinship or affection, whether of spouses, siblings, parent and child, cousins, companions, partners, or otherwise. Yet of all these relationships, Congress has long extended certain federal benefits and protections on the basis of just one that between a husband and wife (and their minor children). Congress is entitled under the Constitution to address issues of social reform on a piecemeal, or incremental, basis. It was therefore permitted to maintain the unique privileges it has afforded to this one relationship without immediately extending the same privileges, and scarce government resources, to new forms of marriage that States have only recently begun to recognize. Its cautious decision simply to maintain the federal status quo while preserving the ability of States to experiment with new definitions of marriage is entirely rational. Congress may subsequently decide to extend federal benefits to same-sex marriages, but its decision to reserve judgment on the question does not render any differences in the availability of federal benefits irrational or unconstitutional.

Case 8:09-cv-00286-DOC-MLG Document 2585-1 Filed 11/06/12 Pageof 54 55 Page ID Case 8:12-cv-01137-CBM-AJW Document Filed 06/11/09 Page 15 16 of Page ID #:114 #:1946

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

Finally, plaintiffs' other claims must be dismissed as well. First, DOMA does not impinge on plaintiffs' ability to express their views and therefore does not violate their First Amendment rights. In any event, marriage (whether same-sex or heterosexual) does not constitute expressive conduct under the First Amendment. Second, the right to privacy encompasses only rights that are constitutionally fundamental, and, as noted earlier, the right to receive benefits on the basis of same-sex marriage (as well as same-sex marriage itself) has not been recognized by the courts as a fundamental right. Third, plaintiffs cannot plead a claim under the Ninth Amendment because that provision is not an independent source of rights. Accordingly, all of plaintiffs' claims against the United States in this action should be dismissed. STATUTORY BACKGROUND In 1996, Congress enacted, and President Clinton signed into law, the Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419 (1996). Section 2 of DOMA provides that "[n]o State . . . shall be required to give effect to any public act, record, or judicial proceeding of any other State . . . respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State." 28 U.S.C. 1738C. Section 3 of DOMA defines the terms "marriage" and "spouse," for purposes of federal law, to include only the union of one man and one woman. Specifically, it 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 wife. 1 U.S.C. 7. The House Judiciary Committee issued a report describing the background and purposes of DOMA. As the Committee explained, DOMA was enacted following the decision in Baehr v. Lewin, 852 P.2d 44 (Haw. 1993), in which a plurality of the Hawaii Supreme Court concluded that the definition of marriage under Hawaii law (as the union of one man and one woman) might warrant heightened scrutiny under the State constitution. See H.R. Rep. No. 104-664, at 2, reprinted

Case 8:09-cv-00286-DOC-MLG Document 2585-1 Filed 11/06/12 Pageof 54 55 Page ID Case 8:12-cv-01137-CBM-AJW Document Filed 06/11/09 Page 16 17 of Page ID #:115 #:1947

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

in 1996 U.S.C.C.A.N. 2905, 2906. In response, Congress sought both to "preserve[ ] each State's ability to decide" what should constitute a marriage under its own laws and to "lay[ ] down clear rules" regarding what constitutes a marriage for purposes of federal law. Id. In enacting Section 2 of DOMA, Congress relied on its "express grant of authority," under the second sentence of the Constitution's Full Faith and Credit Clause, "to prescribe the effect that public acts, records, and proceedings from one State shall have in sister States." Id. at 25, reprinted in 1996 U.S.C.C.A.N. at 2930. That provision, said the Committee, empowers Congress to "resolv[e] conflicts" between the enactments of the different States, id., and Section 2 of DOMA does so by preserving the power of the States to decline to give effect to the laws of other States respecting same-sex marriage. The House Judiciary Committee went on to state that Section 3 of DOMA merely codifies, for purposes of federal law, the definition of marriage set forth in "the standard law dictionary." Id. at 29, reprinted in 1996 U.S.C.C.A.N. at 2935 (citing Black's Law Dictionary 972 (6th ed. 1990)). In explaining why Congress chose to limit federal marital benefits to opposite-sex couples, the Committee acknowledged that "[t]here are relations of deep, abiding love" between persons of all kinds, "brothers and sisters, parents and children, grandparents and grandchildren," that "cannot be diminished as loves [just] because they are not . . . expressed in marriage." Id. at 13, reprinted in 1996 U.S.C.C.A.N. at 2917 (internal quotation marks omitted). Nevertheless, the Committee stressed, DOMA grants "preferred legal status" to a particular kind of loving relationship heterosexual marriage based on four asserted government interests. Id. at 12, reprinted in 1996 U.S.C.C.A.N. at 2916. First, the Committee advanced an interest in "defending and nurturing the institution of traditional, heterosexual marriage" because of the role it plays in "procreation and child-rearing." Id. at 12, 15, reprinted in 1996 U.S.C.C.A.N. at 2916, 2919. Second, the Committee believed that DOMA furthered Congress's asserted interest in "traditional notions of morality." Id. at 15, reprinted in 1996 U.S.C.C.A.N. at 2919. Third, the Committee maintained that DOMA advances the government's interest in "protecting state sovereignty and democratic self-governance." Id. at 16, reprinted in 1996 U.S.C.C.A.N. at 2920. Fourth, the Committee explained that DOMA

Case 8:09-cv-00286-DOC-MLG Document 2585-1 Filed 11/06/12 Pageof 54 55 Page ID Case 8:12-cv-01137-CBM-AJW Document Filed 06/11/09 Page 17 18 of Page ID #:116 #:1948

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

advances the government's interest in "preserving scarce government resources." Id. at 18, reprinted in 1996 U.S.C.C.A.N. at 2922. PROCEDURAL HISTORY Plaintiffs first challenged DOMA in an action filed in this Court on September 1, 2004, Arthur Bruno Smelt, et al. v. County of Orange, California, et al., Case No. SACV04-1042 GLT (MLGx). In that action, they alleged that DOMA violated the Due Process Clause, principles of Equal Protection, and the Full Faith and Credit Clause. Ruling on cross-motions for summary judgment, this Court held that plaintiffs lacked standing to challenge Section 2 of DOMA. The Court's reasoning was two-fold: First, because plaintiffs were not married at the time under the law of any State, there was no "public act . . . respecting a relationship between persons of the same sex" to which the statute could apply. Smelt v. County of Orange, 374 F. Supp. 2d 861, 870-71 (C.D. Cal. 2005) [hereinafter Smelt I]; see 28 U.S.C. 1738C. And second, since plaintiffs did not "claim to have plans to seek recognition of their eventual California marriage in another state," they had not established an "imminent injury" due to Section 2. 374 F. Supp. at 871. The Court then addressed the merits of Section 3 (the definitional section) and rejected all of plaintiffs' challenges, holding that Section 3 does not discriminate on the basis of a suspect classification, that it does not impinge upon a right held by the courts as fundamental, and that it is "rationally related to the legitimate government interest[s]" that Congress identified in enacting DOMA. 374 F. Supp. 2d at 880. Plaintiffs appealed, and the Ninth Circuit held that they lacked standing to challenge either section of DOMA. Smelt v. County of Orange, 447 F.3d 673 (9th Cir. 2006) [hereinafter Smelt II]. As to Section 2, the court essentially agreed with this Court's rationale. See id. at 683. In relation to Section 3, the appellate court reasoned: DOMA itself simply does not injure [the plaintiffs] or exclude them from some undefined benefit to which they might have been or might someday be entitled. In fact, they do not suggest that they have applied for any federal benefits, much less been denied any at this point. That they might someday be married under the law of some state or ask for some federal benefit which they are denied is not enough. In short, they have not spelled out a legally protected interest, much less one that was injured in a concrete and particularized way.

Case 8:09-cv-00286-DOC-MLG Document 2585-1 Filed 11/06/12 Pageof 54 55 Page ID Case 8:12-cv-01137-CBM-AJW Document Filed 06/11/09 Page 18 19 of Page ID #:117 #:1949

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

Id. at 684 (citations omitted). The court also noted, in addition to this holding regarding constitutional standing, that plaintiffs lacked prudential standing because their challenge constituted a "generalized grievance[ ] pervasively shared," such that "[a]ny citizen or taxpayer could as easily claim that some application or other of the DOMA definition to some as yet undesignated statute, which confers some public benefit or right, might exclude that person because DOMA requires a legal union, a man, and a woman." Id. at 684, 685. On remand, this Court dismissed the case on August 29, 2008, as directed by the Court of Appeals. The plaintiffs then filed a new Complaint challenging DOMA on November 3, 2008, this time including an allegation that they had married under California law. The proposed Complaint in that matter, docketed as Case No. SACV08-01244 UA, contained the same claims against DOMA as the Complaint herein, and named as defendants the United States of America and "Does 1 through 1,000." That Complaint was submitted with plaintiffs' Requests to Proceed in Forma Pauperis, which The Honorable Alicemarie H. Stotler denied on November 26, 2008. That matter (Case No. SACV08-01244 UA) has now been closed. Plaintiffs filed the present Complaint in the Superior Court of California for the County of Orange on December 29, 2008, naming as defendants the United States, the State of California, and "Does 1 through 1,000." The Complaint filed in State court is identical to the Complaint submitted earlier in this Court,1 except for the addition of the State of California as a defendant and several sentences related to the new defendant. Plaintiffs filed applications for waivers of fees and costs in State court, and those applications were granted. See Attachment 1 hereto.2

Plaintiffs allege that they were married in California on July 10, 2008, see Complaint 10 that is, approximately four months before the addition of Article 1, Section 7.5, to the State constitution, which declares that "[o]nly marriage between a man and a woman is valid or recognized in California." The California Supreme Court has rejected challenges to this new constitutional provision, but has declared that same-sex marriages contracted before its enactment remain valid. See Strauss v. Horton, 207 P.3d 48 (Cal. May 26, 2009). The State court entered form orders on both applications (Attachment 1 hereto). On both orders, the court checked the box indicating "It is ordered that the application is granted in whole." On the order regarding plaintiff Hammer's request, another box was also checked contradictorily (continued...) 8
2

Case 8:09-cv-00286-DOC-MLG Document 2585-1 Filed 11/06/12 Pageof 54 55 Page ID Case 8:12-cv-01137-CBM-AJW Document Filed 06/11/09 Page 19 20 of Page ID #:118 #:1950

1 2 3 4 5 6 7 I.

The United States, upon learning of the action in State court, filed a Notice of Removal in this Court under 28 U.S.C. 1442(a)(1) (Doc. #1). The parties thereafter stipulated that defendants' responses to the Complaint would be due on June 11, 2009 (Doc. #14), and the Court entered an Order pursuant to such stipulation on May 21, 2009 (Doc. # 20). ARGUMENT This Court Lacks Jurisdiction Over Plaintiffs' Claims Against the United States Because the State Court Lacked Jurisdiction After removal of a case from State court, the district court must determine the scope of its

8 jurisdiction. See FBI v. Superior Court of Cal., 507 F. Supp. 2d 1082, 1090 (N.D. Cal. 2007). 9 When a case is "removed from state court pursuant to [28 U.S.C.] 1442, [the federal court's] 10 jurisdiction is derivative of the state court's jurisdiction." See In re Elko County Grand Jury, 109 11 F.3d 554, 555 (9th Cir. 1997). In other words, a federal court, after removal, "has no more 12 jurisdiction than the state court" did before removal. See Salveson v. Western States Bankcard 13 Ass'n, 731 F.2d 1423, 1431 (9th Cir. 1984). Thus, "if the state court from which [a case] was 14 removed lacked subject matter jurisdiction," then the federal court will also lack jurisdiction, "even 15 though the federal court would have had jurisdiction had the suit been brought there originally." See 16 FBI v. Superior Court of Cal., 507 F. Supp. 2d at 1090 (quoting Beeman v. Olson, 828 F.2d 620, 621 17 (9th Cir.1987)); see also Glass v. National R.R. Passenger Corp., 570 F. Supp. 2d 1180, 1183 (C.D. 18 Cal. 2008) ("This Court agrees with the discussion and holding in FBI, 507 F. Supp. 2d at 1090-92, 19 that the derivative jurisdiction doctrine is alive and well and applies to 28 U.S.C. 1442 20 21 22 23 24 25 26 27 28 (...continued) and apparently in error indicating that he would be required to pay certain fees. Although certain amendments to 28 U.S.C. 1441 have eliminated the derivative jurisdiction doctrine in cases removed under that section, the doctrine continues to operate in cases removed under 28 U.S.C. 1442. See FBI v. Superior Court of Cal., 507 F. Supp. 2d at 1091-92; see also Palmer v. City Nat'l Bank, 498 F.3d 236, 247-48 (4th Cir. 2007) (discussing reasons why "Congress decided to retain the traditional rule that removal jurisdiction is derivative of state court jurisdiction prior to removal [under 1442]"). 9
3 2

removals.").3

Case 8:09-cv-00286-DOC-MLG Document 2585-1 Filed 11/06/12 Pageof 54 55 Page ID Case 8:12-cv-01137-CBM-AJW Document Filed 06/11/09 Page 20 21 of Page ID #:119 #:1951

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

In this case, the Superior Court of California for the County of Orange lacked jurisdiction over plaintiffs' claims against the United States before removal. "[T]he United States has sovereign immunity and may only be sued where it has waived that immunity, subject to conditions on such waiver." Glass, id. at 1183. Absent a waiver of immunity, the United States is immune from suit in State courts. See Powelson v. United States, 150 F.3d 1103, 1105 (9th Cir. 1998) (dismissing removed matter where "[t]he government [had] not waived its immunity from suit in state courts"); Nebraska v. Bentson, 146 F.3d 676, 679 (9th Cir. 1998) ("Without an express waiver of the IRS's sovereign immunity as an agency of the United States, the state court lacked jurisdiction."). Counsel for the United States is aware of no waiver of sovereign immunity that would have applied to plaintiffs' claims against the United States in the Superior Court of California, and the Complaint in this action suggests no such waiver. Accordingly, the State court lacked jurisdiction over those claims, and this Court necessarily also lacks jurisdiction. Furthermore, the procedural history of this case illustrates one salutary effect of the derivative jurisdiction doctrine. Plaintiffs initially filed their challenge against DOMA in this Court with a request to proceed in forma pauperis. When that request was denied, they added the State of California as a defendant and filed essentially the same action in State court approximately one month later, again with a request for waiver of fees and costs. The State court, unlike this Court, granted the request to file without payment of fees and costs. Plaintiffs have, therefore, engaged in a sort of "forum shopping" in an effort to avoid paying fees and costs. Moreover, plaintiffs' conduct, if permitted, would essentially transfer certain of their expenses to the United States, which has borne the cost of filing a notice of removal in this Court and a notification of removal in State court. Failing to dismiss an action based on the derivative jurisdiction doctrine under these circumstances would encourage this kind of conduct. II. Plaintiffs' Claims and Allegations Against the United States Must Be Dismissed for Lack of Standing For several reasons including some of the same reasons relied on by this Court, and the

26 Ninth Circuit, in holding that plaintiffs lacked standing in their first action the plaintiffs are still 27 without standing to bring their present claims against the United States. Specifically, because 28 10

Case 8:09-cv-00286-DOC-MLG Document 2585-1 Filed 11/06/12 Pageof 54 55 Page ID Case 8:12-cv-01137-CBM-AJW Document Filed 06/11/09 Page 21 22 of Page ID #:120 #:1952

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

plaintiffs still do not "claim to have plans to seek recognition of their . . . California marriage in another state," they have not established an "imminent injury" due to Section 2. See Smelt I, 374 F. Supp. at 871. And because they still "do not suggest that they have applied for any federal benefits, much less been denied any at this point," plaintiffs still lack standing to bring any claim against Section 3 of DOMA, the definitional provision. See Smelt II, 447 F.3d at 684. Further, even if plaintiffs otherwise had standing to challenge DOMA, they would lack standing to pursue certain aspects of the sweeping nationwide relief they seek against the United States, such as their request for "a permanent injunction compelling the Defendants to take all necessary acts to require the entire nation of the United States of America, [and] all of its territories and jurisdictions, to eliminate any distinction in the law that prejudices the rights of Plaintiffs." See Complaint 8. A. The Case or Controversy Requirement of Article III

The power of federal courts extends only to "Cases" and "Controversies," see U.S. Const. art. III, 2, and a litigant's standing to sue is "an essential and unchanging part of the case-orcontroversy requirement." See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 119 L.Ed.2d 351 (1992). To satisfy this requirement, a plaintiff must demonstrate, as the "irreducible constitutional minimum" of standing to sue, an "injury in fact", a "fairly traceable" causal connection between the injury and defendant's conduct, and redressability. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 102-03, 118 S. Ct. 1003, 140 L.Ed.2d 210 (1998); see also Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 12, 124 S. Ct. 2301, 2309, 159 L.Ed.2d 98 (2004) ("The plaintiff must show that the conduct of which he complains has caused him to suffer an 'injury in fact' that a favorable judgment will redress."). The injury needed for constitutional standing must, in addition, be "concrete," "objective," and "palpable," not merely "abstract" or "conjectural" See Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S. Ct. 1717, 109 L.Ed.2d 135 (1990); Bigelow v. Virginia, 421 U.S. 809, 816-17, 95 S. Ct. 2222, 44 L.Ed.2d 600 (1975). The standing inquiry, moreover, must be "especially rigorous when," as here, "reaching the merits of the dispute would force [a court] to decide whether an action taken by [another] branch[ ] of the Federal Government was unconstitutional." Raines v. Byrd, 521 U.S.

11

Case 8:09-cv-00286-DOC-MLG Document 2585-1 Filed 11/06/12 Pageof 54 55 Page ID Case 8:12-cv-01137-CBM-AJW Document Filed 06/11/09 Page 22 23 of Page ID #:121 #:1953

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

811, 819-20, 117 S. Ct. 2312, 138 L.Ed.2d 849 (1997). And if the plaintiff lacks standing, the Court lacks subject matter jurisdiction. See FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231, 110 S. Ct. 596, 107 L.Ed.2d 603 (1990) ("standing 'is perhaps the most important of [the jurisdictional] doctrines'") (quoting Allen v. Wright, 468 U.S. 737, 750, 104 S. Ct. 3315, 82 L.Ed.2d 556 (1984)). In addition to these constitutional mandates, the Courts adhere to certain "prudential" requirements of standing. These include, most notably for this case, "the general prohibition on a litigant's raising another person's legal rights [and] the rule barring adjudication of generalized grievances more appropriately addressed in the representative branches." Allen v. Wright, 468 U.S. 737, 751, 104 S. Ct. 3315, 82 L.Ed.2d 556 (1984). "There are good and sufficient reasons for th[e] prudential limitation on standing when rights of third parties are implicated the avoidance of the adjudication of rights which those not before the Court may not wish to assert, and the assurance that the most effective advocate of the rights at issue is present to champion them." Duke Power Co. v. Carolina Envt'l Study Group, Inc., 438 U.S. 59, 80, 98 S. Ct. 2620, 57 L.Ed.2d 595 (1978). Additionally, this limitation ensures that a court does not "decide abstract questions of wide public significance even though other governmental institutions [including other courts] may be more competent to address the questions and even though judicial intervention may be unnecessary to protect individual rights." Warth v. Seldin, 422 U.S. 490, 500, 95 S. Ct. 2197, 45 L.Ed.2d 343 (1975). Under these principles, the plaintiffs in this action lack standing to challenge either section of DOMA under any theory, and to pursue relief of such breathtaking scope as they purport to seek in their Complaint. B. Plaintiffs Lack Standing to Challenge DOMA's Reservation of the States' Authority Regarding Recognition of Same-Sex Marriages Performed in Other States

Section 2 of DOMA provides that one State need not recognize a same-sex marriage performed under the laws of another State; specifically, it states that "[n]o State . . . shall be required to give effect to any public act, record, or judicial proceeding of any other State . . . respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such

12

Case 8:09-cv-00286-DOC-MLG Document 2585-1 Filed 11/06/12 Pageof 54 55 Page ID Case 8:12-cv-01137-CBM-AJW Document Filed 06/11/09 Page 23 24 of Page ID #:122 #:1954

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

other State." 28 U.S.C. 1738C. Thus, for example, if a same-sex couple were married under the laws of California and later moved to another State that does not allow or recognize same-sex marriages, DOMA would make clear that the second State would not be required, under federal constitutional or statutory law, to recognize their California marriage. Obviously, as plaintiffs' circumstances now stand, they cannot show that this provision of DOMA has any effect upon them. They complain that States other than California, exercising the choice preserved to them by Section 2 to withhold recognition of plaintiffs' marriage, can thus deny them rights and benefits "automatically bestowed upon opposite-gender couples," such as "decisionmaking authority for funeral arrangements" and "the right to bereavement leave in the event of a partner's death; the presumption that both spouses are the legal parents of a child born during marriage; and, the right to community property," among others. See Complaint 3, 4. These, of course, are rights and benefits that another State could deny to plaintiffs only if they were visitors, residents, and/or citizens within that State at an unknown time in the future when an occasion to assert such rights might arise. Plaintiffs allege, however, that they "reside in Orange County, California." See id. 9. They allege no plans to move to another State, and, as in their first action challenging DOMA in this Court, they do not otherwise "claim to have plans to seek recognition of their . . . California marriage in another state." Smelt I, 374 F. Supp. at 871. Accordingly, as this Court held in the prior action, "[p]laintiffs have not established an imminent injury sufficient to confer standing to challenge section 2." Id. C. Plaintiffs Lack Standing to Challenge the Definitions of "Marriage" and "Spouse" Under Federal Law

In challenging Section 3 of DOMA, which defines the words "marriage" and "spouse" for 22 purposes of federal law, plaintiffs allege that the refusal to recognize their marriage "results in a 23 denial of . . . more than a thousand federal rights, benefits, and responsibilities," such as "[t]he right 24 to social security survivor benefits" and "the right to bereavement leave in the event of a partner's 25 26 27 28 13

Case 8:09-cv-00286-DOC-MLG Document 2585-1 Filed 11/06/12 Pageof 54 55 Page ID Case 8:12-cv-01137-CBM-AJW Document Filed 06/11/09 Page 24 25 of Page ID #:123 #:1955

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

death." See Complaint 3-4.4 Plaintiffs do not allege, however, that they have actually been denied any federal marital benefits because of DOMA, or even that they have applied for benefits under any program to which this statute might apply. Thus, plaintiffs have not shown that they have suffered any concrete "injury in fact" due to the definitional provision of DOMA. See Steel Co., 523 U.S. at 102-03. In fact, by failing to allege the denial of any federal benefits because of DOMA, plaintiffs have failed to correct one of the very defects that caused the Ninth Circuit to hold that they lacked standing in their first challenge to DOMA. In finding that plaintiffs lacked standing to challenge Section 3 of DOMA, the Court of Appeals relied on the fact that the definitional provision had never been applied to them under any federal statute: DOMA itself simply does not injure [the plaintiffs] or exclude them from some undefined benefit to which they might have been or might someday be entitled. In fact, they do not suggest that they have applied for any federal benefits, much less been denied any at this point. That they might someday be married under the law of some state or ask for some federal benefit which they are denied is not enough. In short, they have not spelled out a legally protected interest, much less one that was injured in a concrete and particularized way. 447 F.3d at 684 (emphasis added) (citations omitted). Except for the reference to being "married under the law of some state," all of these statements remain true. Plaintiffs have still "not suggest[ed] that they have applied for any federal benefits, much less been denied any at this point." Hence, having suffered no concrete injury attributable to Section 3, either, plaintiffs are without standing to challenge its constitutionality. D. Plaintiffs Cannot Establish Standing to Seek Certain Sweeping Relief Requested in Their Complaint

Even if plaintiffs otherwise had standing to challenge either Section 2 or Section 3 of 22 DOMA, plaintiffs would lack standing to pursue the expansive relief alluded to in their Complaint. 23 Specifically: 24 25 26 27 28 All of the other examples given in the Complaint are products of State law, to the extent they are supported by law at all: "decision-making authority for funeral arrangements and disposition of the body . . . the presumption that both spouses are the legal parents of a child born during marriage; and, the right to community property, and a share of separate property, upon the death of a partner who dies intestate." See Complaint 4. 14
4

Case 8:09-cv-00286-DOC-MLG Document 2585-1 Filed 11/06/12 Pageof 54 55 Page ID Case 8:12-cv-01137-CBM-AJW Document Filed 06/11/09 Page 25 26 of Page ID #:124 #:1956

1 2 3

Plaintiffs purport to seek "a permanent injunction compelling the Defendants to take all necessary acts to require the entire nation of the United States of America, [and] all of its territories and jurisdictions, to eliminate any distinction in the law that prejudices the rights of Plaintiffs." See Complaint 8 (emphasis added). And plaintiffs request "declaratory judgment establishing any law that restricts Plaintiffs' rights or distinguishes Plaintiffs' rights in any way from any opposite gender married couple to be unconstitutional, under the United States Constitution." Id. (emphasis added).

4 5

Although plaintiffs do not include requests of this nature among their prayers for relief, the above6 quoted paragraph in the Complaint explicitly "ask[s] for" and "seek[s]" this relief. Id. 7 Plaintiffs lack standing to pursue these requests, under both constitutional and prudential 8 requirements of standing. From a constitutional standpoint, plaintiffs have not attempted to allege 9 an "injury in fact" or any specific effect at all upon them due to "any" law other than DOMA. 10 And since they have not even identified any particular "conduct of which [they] complain[ ]," other 11 than DOMA, plaintiffs would necessarily be unable to show how any such laws have "caused [them] 12 to suffer an 'injury in fact' that a favorable judgment will redress." See Elk Grove Unified School 13 Dist., 542 U.S. at 12. Further, judgment against the present defendants the United States 14 government and one State could not possibly redress every alleged injury to the plaintiffs from 15 "any distinction in the law" throughout "the entire nation of the United States of America, all of its 16 territories and jurisdictions." See Complaint 8. 17 These aspects of the Complaint also seek to "rely on the rights or interests of third parties," in 18 violation of the prudential requirements of standing. See Hong Kong Supermarket v. Kizer, 830 19 F.2d 1078, 1081 (9th Cir. 1987). Only those who suffer cognizable injury due to laws in other 20 "territories and jurisdictions" have standing to challenge those laws. See Complaint 8. As the 21 Supreme Court has held, "even if a governmental actor is discriminating on the basis of [a suspect 22 classification], the resulting injury 'accords a basis for standing only to those persons who are 23 personally denied equal treatment by the challenged discriminatory conduct.'" United States v. 24 Hays, 515 U.S. 737, 743-44, 115 S. Ct. 2431, 132 L.Ed.2d 635 (1995) (quoting Allen, 468 U.S. at 25 755). This rule "applies with as much force in the equal protection context as in any other." Hays, 26 id. at 743. 27 28 15

Case 8:09-cv-00286-DOC-MLG Document 2585-1 Filed 11/06/12 Pageof 54 55 Page ID Case 8:12-cv-01137-CBM-AJW Document Filed 06/11/09 Page 26 27 of Page ID #:125 #:1957

1 2

III.

DOMA Is a Valid Exercise of Congress's Power under the Full Faith and Credit Clause Even if the Court had subject matter jurisdiction to hear plaintiffs' claims, it would

3 nevertheless have to dismiss them on the merits. Plaintiffs assert that Section 2 of DOMA which 4 preserves a State's prerogative to decline to give "effect" to another State's laws respecting same-sex 5 marriage violates the Full Faith and Credit Clause of the Constitution. See Complaint 28. This 6 challenge fails as a matter of law. 7 Section 2 is fully consistent with the Full Faith and Credit Clause, for two important reasons. 8 First, the principle of according "Full Faith and Credit" has never been construed to require one 9 State to give absolute deference to another State's laws in all circumstances. Rather, this provision 10 has long been understood to leave room for the application of traditional principles of conflict of 11 laws, including the concept that each State retains the authority to decline to apply another State's 12 law when it conflicts with its own legitimate public policies. Section 2 of DOMA easily fits within 13 this principle, which has long been applied to recognize the power of each State to apply its own 14 licensing standards including, specifically, for marriage licenses when they conflict with those 15 of another State. Second, in any event, plaintiffs completely ignore the second sentence of the Full 16 Faith and Clause, which expressly empowers Congress to prescribe "the Effect" of one State's laws 17 in another State, and clearly condones the exercise of that power in DOMA. Under any conceivable 18 construction of this "effects" provision, Congress clearly has the power to recognize the authority of 19 each State to give primacy to its own standards for marriage licensing and to decline to give effect to 20 the conflicting standards of another. 21 A. 22 23 24 25 26 27 28 16 Section 2 is Consistent With Common Law Conflicts Principles

The principle of "Full Faith and Credit" has never been construed to require the States literally to give effect, in all circumstances, to the statutes or judgments of other States. Indeed, "[a] rigid and literal enforcement of the full faith and credit clause, without regard to the statute of the forum, would lead to the absurd result that, wherever the conflict arises, the statute of each state

Case 8:09-cv-00286-DOC-MLG Document 2585-1 Filed 11/06/12 Pageof 54 55 Page ID Case 8:12-cv-01137-CBM-AJW Document Filed 06/11/09 Page 27 28 of Page ID #:126 #:1958

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

must be enforced in the courts of the other, but cannot be in its own." Alaska Packers Ass'n v. Industrial Accident Comm'n, 294 U.S. 532, 547, 55 S. Ct. 518, 79 L. Ed. 1044 (1935). Consistent with this principle, the Supreme Court has indicated that the Framers of the Constitution had an "expectation" that the Full Faith and Credit Clause "would be interpreted against the background of principles developed in international conflicts law." Sun Oil Co. v. Wortman, 486 U.S. 717, 723 & n.1, 108 S. Ct. 2117, 100 L.Ed.2d 743 (1988). And, as the Court has repeatedly acknowledged, longstanding principles of conflicts of law do "not require a State to apply another State's law in violation of its own legitimate public policy." See, e.g., Nevada v. Hall, 440 U.S. 410, 422, 99 S. Ct. 1182, 59 L.Ed.2d 416 (1979); see also Williams v. North Carolina, 317 U.S. 287, 296, 63 S. Ct. 207, 87 L. Ed. 279 (1942) ("Nor is there any authority which lends support to the view that the full faith and credit clause compels the courts of one state to subordinate the local policy of that state, as respects its domiciliaries, to the statutes of any other state."). Under this longstanding public policy doctrine, out-of-state statutes or acts that are contrary to the forum State's policy need not be followed under the Full Faith and Credit Clause. See, e.g., Pacific Employers Ins. Co. v. Industrial Accident Comm'n, 306 U.S. 493, 501, 59 S. Ct. 629, 83 L. Ed. 940 (1939) (holding that California courts need not apply Massachusetts law of workers compensation to Massachusetts employee of Massachusetts employer, where that law was contrary to California's "policy to provide compensation for employees injured in their employment within the state"); see also Hilton v. Guyot, 159 U.S. 113, 167, 16 S. Ct. 139, 40 L. Ed. 95 (1895) ("A judgment affecting the status of persons, such as a decree confirming or dissolving a marriage, is recognized as valid in every country, unless contrary to the policy of its own law."); Bank of Augusta v. Earle, 38 U.S. (13 Pet.) 519, 589, 10 L. Ed. 274 (1839) (noting the longstanding principle of conflicts that the laws of one country "will, by the comity of nations, be recognised and executed in another . . . provided that law was not repugnant to the laws or policy of their own country") (emphasis added). The courts have followed this principle, moreover, in relation to the validity of marriages performed in other States. Both the First and Second Restatements of Conflict of Laws recognize that State courts may refuse to give effect to a marriage, or to certain incidents of a marriage, that

17

Case 8:09-cv-00286-DOC-MLG Document 2585-1 Filed 11/06/12 Pageof 54 55 Page ID Case 8:12-cv-01137-CBM-AJW Document Filed 06/11/09 Page 28 29 of Page ID #:127 #:1959

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

contravene the forum State's policy. See Restatement (First) of Conflict of Laws 134; Restatement (Second) of Conflict of Laws 284.5 And the courts have widely held that certain marriages performed elsewhere need not be given effect, because they conflicted with the public policy of the forum. See, e.g., Catalano v. Catalano, 170 A.2d 726, 728-29 (Conn. 1961) (marriage of uncle to niece, "though valid in Italy under its laws, was not valid in Connecticut because it contravened the public policy of th[at] state"); Wilkins v. Zelichowski, 140 A.2d 65, 67-68 (N.J. 1958) (marriage of 16-year-old female held invalid in New Jersey, regardless of validity in Indiana where performed, in light of N.J. policy reflected in statute permitting adult female to secure annulment of her underage marriage); In re Mortenson's Estate, 316 P.2d 1106 (Ariz. 1957) (marriage of first cousins held invalid in Arizona, though lawfully performed in New Mexico, given Arizona policy reflected in statute declaring such marriages "prohibited and void"). Accordingly, Section 2 of DOMA hews to long-established principles in relation to the recognition of marriages performed in other States, and ensures that States may continue to rely on their own public policies to reject (or accept) requests to recognize same-sex marriages. The fact that States have long had the authority to decline to give effect to marriages performed in other States based on the forum State's public policy strongly supports the constitutionality of Congress's exercise of its authority in DOMA. Surely the Full Faith and Credit Clause cannot be read, in light of these established principles, to preclude a State from applying its own definition of marriage in situations involving same-sex couples, married elsewhere, who are domiciled within its own borders. That Clause clearly does not mandate such interference with "long established and still subsisting choice-of-law practices." Sun Oil Co., 486 U.S. at 728-29.

Among the "incidents" of marriage mentioned in the Restatement (Second) of Conflict of Laws are "that the spouses may lawfully cohabit as man and wife . . . the marital property interests which each spouse may have in the other's assets . . . the forced share or intestate share which the surviving spouse has in the estate of the deceased spouse [and] that a party to the marriage is the 'spouse' of the other . . . within the meaning of these terms when used in a will, trust or other instrument." See Restatement (Second) of Conflict of Laws 284 cmt. a. 18

Case 8:09-cv-00286-DOC-MLG Document 2585-1 Filed 11/06/12 Pageof 54 55 Page ID Case 8:12-cv-01137-CBM-AJW Document Filed 06/11/09 Page 29 30 of Page ID #:128 #:1960

1 2

B.

Section 2 Was Enacted Under Congress's Authority to Prescribe to Prescribe the "Effect" of One State's Acts in Other States

The constitutionality of Section 2 of DOMA is further confirmed by the second sentence of 3 the Full Faith and Credit Clause, which expressly empowers Congress to prescribe "the Effect" to be 4 accorded to the laws of a sister State. See U.S. Const. art. IV, 1, cl. 2. Although the broad 5 contours of this provision have not been conclusively established, the power exercised by Congress 6 in enacting DOMA clearly conforms to any conceivable construction of the effects provision. 7 First, there is ample support in both history and case law for according plenary power to 8 Congress under the effects provision. When the Framers considered the Full Faith and Credit 9 Clause, they explained that it was designed to make up for the inadequacies of a predecessor 10 provision in the Articles of Confederation a provision that called for according full faith and 11 credit to a sister State's laws, but that recognized no legislative power to prescribe the "effect" of 12 such laws. In the Framers' view, the provision in the Articles of Confederation was "deficien[t]," 13 because it did not "declare what was to be the effect of a judgment obtained in one state in another 14 state." McElmoyle ex rel. Bailey v. Cohen, 38 U.S. (13 Pet.) 312, 325-26, 10 L. Ed. 177 (1839) 15 (Mem) (emphasis added). In the absence of any provision as to such "effect," the Framers viewed 16 17 As the Supreme Court explained in McElmoyle, this historical record accords limited 18 significance to the first sentence of the Full Faith and Credit Clause, and plenary power to Congress 19 to prescribe the substantive effects of a sister State's laws. Specifically, the first sentence merely 20 provides that the judgments of one State "are only evidence in a sister state that the subject matter of 21 the suit has become a debt of record." McElmoyle, id. at 325 (emphasis added). It "does not declare 22 what was to be the effect of a judgment obtained in one state in another state," id. (emphasis added); 23 the prescription of any substantive effect of a sister State's laws is left to Congress under the second 24 sentence the effects provision. 25 26 27 28 See The Federalist No. 42, at 271 (James Madison) (Clinton Rossiter ed., 1961) ("The meaning of the [the full faith and credit clause in the Articles] is extremely indeterminate, and can be of little importance under any interpretation which it will bear."). 19
6

the meaning of "full faith and credit" as "extremely indeterminate," and "of little importance."6

Case 8:09-cv-00286-DOC-MLG Document 2585-1 Filed 11/06/12 Pageof 54 55 Page ID Case 8:12-cv-01137-CBM-AJW Document Filed 06/11/09 Page 30 31 of Page ID #:129 #:1961

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

This same construction was embraced by the Court in Mills v. Duryee, 11 U.S. (7 Cranch) 481, 3 L. Ed. 411 (1813). At issue in Mills was the Full Faith and Credit statute of 1790, now codified in substantially similar terms at 28 U.S.C. 1738, which provided that one State's judgment would have the same effect in other States as it would have in the rendering State. In rejecting a reading of the statute that would treat "judgments of the state Courts . . . as prima facie evidence only," the Court noted that "the constitution contemplated a power in congress to give a conclusive effect to such judgments." Id. at 485 (emphasis added). As in McElmoyle, then, the Mills decision reads the effects provision not the first sentence of the Full Faith and Credit Clause as conferring on Congress the broad power "to give a conclusive effect" to the laws of another State. Under this view, Congress obviously acted within its plenary effects power in enacting Section 2 of DOMA. If the Constitution itself does not declare "the effect" of the law of "one state in another state," McElmoyle, 38 U.S. (13 Pet.) at 325, but instead leaves that "power in congress," Mills, 11 U.S. (7 Cranch) at 485, then Congress clearly had the authority in DOMA to declare that no State is "required to give effect" to the same-sex marriage laws of other States. 28 U.S.C. 1738C. Moreover, the Court need not embrace this plenary reading of Congress's effects power in order to sustain Section 2 of DOMA. Whatever the breadth of Congress's power under the Full Faith and Credit Clause, it clearly encompasses the authority to confirm the applicability of one of the longstanding, generally applicable principles of conflicts law that formed the background to the Clause. See Sun Oil Co., 486 U.S. at 723 & n.1. As explained in detail above, one such principle was the public policy doctrine, which has long recognized the sovereign authority of the States to decline to give effect to the laws of a sister State at variance with their own legitimate public policy. Section 2 of DOMA merely confirms the specific applicability of that longstanding principle in the context of laws regarding same-sex marriage. This exercise of Congress's effects power easily fits within any conceivable construction of this provision. As the Supreme Court recognized in Sun Oil Co., the conflicts law that formed the "background" of the Full Faith and Credit Clause was common law, subject to further

20

Case 8:09-cv-00286-DOC-MLG Document 2585-1 Filed 11/06/12 Pageof 54 55 Page ID Case 8:12-cv-01137-CBM-AJW Document Filed 06/11/09 Page 31 32 of Page ID #:130 #:1962

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

"development." Id. In authorizing Congress to declare the "effect" of one State's laws in another State, the Constitution empowers Congress, at the very least, to codify the applicability of a longstanding common law principle in a context where State public policies are poised to clash. That is all that Congress has done in enacting Section 2 of DOMA, and its exercise of that authority must be upheld under any reasonable interpretation of its power. IV. DOMA Cannot Be Said to Violate an Asserted "Right to Travel" In addition to their Full Faith and Credit Clause claim, plaintiffs contend that DOMA violates an asserted "right to travel." See Complaint 17. Although the complaint does not specify, presumably plaintiffs are referring to the freedom to travel from one State to another, long protected by the Constitution as a basic right. See Shapiro v. Thompson, 394 U.S. 618, 629-31, 89 S. Ct. 1322, 22 L.Ed.2d 600 (1969). This claim also fails. To begin with, plaintiffs lack standing to raise this claim. They have failed to allege any plans to travel to, reside in, or become citizens of any State other than California. They thus do not and cannot allege that DOMA has actually interfered with such travel. See Whitmore, 495 U.S. at 155, 157, 158 (injury alleged cannot be "conjectural or hypothetical," "speculative," or "abstract," but must be "certainly impending"). In all events, DOMA simply does not curtail anyone's right to travel. It merely permits each State to follow its own policy with respect to marriage, and defines that term for purposes of federal statutes. Thus, DOMA does not affect "the right of a citizen of one State to enter and to leave another State, the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State, [or], for those travelers who elect to become permanent residents, the right to be treated like other citizens of that State." Saenz v. Roe, 526 U.S. 489, 500, 119 S. Ct. 1518, 143 L.Ed.2d 689 (1999) (noting that "right to travel" cases embrace these three components). Furthermore, given that DOMA merely codifies long-standing principles of conflict of laws under Congress's express authority to prescribe the effect of one State's acts in the other States, it cannot violate any implied constitutional "right to travel." Requiring adherence to one State's 21

Case 8:09-cv-00286-DOC-MLG Document 2585-1 Filed 11/06/12 Pageof 54 55 Page ID Case 8:12-cv-01137-CBM-AJW Document Filed 06/11/09 Page 32 33 of Page ID #:131 #:1963

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

codified social policies by every other State, in the name of a right to travel, would eliminate conflict-of-laws principles in this context and "would lead to the absurd result that, wherever [a] conflict arises, the statute of each state must be enforced in the courts of the other, but cannot be in its own." Alaska Packers Ass'n, 294 U.S. at 547; see Ellis v. Anderson, 901 S.W. 2d 46, 47-48 (Ky. Ct. App. 1995) (notwithstanding right to travel, "states have considerable power to adopt an appropriate conflict of laws doctrine in a situation touching more than one state"); Miller v. Stauffer Chem. Co., 581 P.2d 345, 348-49 (Idaho 1978) (same). Put differently, the plaintiffs' theory of the to travel would invalidate the Constitution's express grant of authority to Congress to prescribe "the Effect" to be accorded to the laws of another State. As the Supreme Court has held, "Full Faith and Credit does not . . . enable one state to legislate for the other or to project its laws across state lines . . . ." Nevada v. Hall, 440 U.S. at 423-24. The Full Faith and Credit Clause expressly preserves this State sovereign prerogative, and surely no implicit "right to travel" can be read to take it away. V. DOMA Is Consistent with Equal Protection and Due Process Principles Plaintiffs further allege that DOMA violates their rights under the Due Process Clause of the Fifth Amendment, including its equal protection component. DOMA, however, merely preserves for each State the authority to follow its own law and policy with respect to same-sex marriage for purposes of State law. And it maintains the status quo of federal policy, preserving a longstanding federal policy of promoting traditional marriages, by clarifying that the terms "marriage" and "spouse," for purposes of federal law, refer to marriage between a man and a woman, and do not encompass relationships of any other kind within their ambit. Thus, because DOMA does not make a suspect classification or implicate a right that has been recognized as fundamental, it is necessarily subject to rational-basis scrutiny, see National Ass'n for Advancement of Psychoanalysis v. California Bd. of Psychology, 228 F.3d 1043, 1049 (9th Cir. 2000), which it satisfies. Congress makes a wide array of federal financial and other benefits available to men and women united in marriage to the exclusion of all other human relationships (save for that of parent and minor child), not just same-sex marriage. In enacting DOMA, Congress (1) recognized 22

Case 8:09-cv-00286-DOC-MLG Document 2585-1 Filed 11/06/12 Pageof 54 55 Page ID Case 8:12-cv-01137-CBM-AJW Document Filed 06/11/09 Page 33 34 of Page ID #:132 #:1964

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16

the right of some States to expand the traditional understanding of marriage while, at the same time, it (2) protected the rights of other States to adhere to their traditional understandings of the institution, and (3) maintained the longstanding federal policy of affording benefits to the traditional, and universally recognized, version of marriage. This measured response to society's evolving understandings of marriage is entirely rational. Indeed, under rational basis scrutiny, Congress is entitled to respond to new social phenomena one step at a time, and to adjust national policy incrementally. DOMA reflects just such a response. It adopts on the national level, and permits on the state level, a wait-and-see approach to new forms of marriage. DOMA thus maximizes democratic flexibility under our federalist scheme, by simply preventing some States from requiring other States and the federal government to grant benefits to forms of marriages that, under their own constitutions, state or federal governments are not obligated to recognize. Because it is rationally related to legitimate governmental interests, plaintiffs cannot overcome the "presumption of constitutionality" that DOMA, like all federal statutes, enjoys. See, e.g., Califano v. Gautier Torres, 435 U.S. 1, 5, 98 S. Ct. 906, 55 L.Ed.2d 65 (1978). A. Federal Courts Have Unanimously Upheld the Constitutionality of DOMA

DOMA codifies, for purposes of federal statutes, regulations, and rulings, the longstanding, 17 traditional definition of marriage as "a legal union between one man and one woman as husband and 18 wife," see 1 U.S.C. 7, and preserves to each State the ability to retain that definition as its policy if 19 20 defendants are aware, every court to address a federal constitutional challenge to this definition of 21 marriage has rejected the challenge. See, e.g., Citizens for Equal Protection v. Bruning, 455 F.3d 22 23 24 25 26 27 28 23 Portions of plaintiffs' Complaint confuse the United States Code citations for the two substantive sections of DOMA. As stated correctly in paragraphs 15 and 16 of the Complaint, Section 2 of DOMA, which provides that a State is not required to give effect to a same-sex marriage from another State, is codified at 28 U.S.C. 1738C, and Section 3, which defines "marriage" and "spouse" for purposes of federal law (erroneously called the "Federal Definition of Marriage Act" in paragraph 15), is codified at 1 U.S.C. 7. Most of the remainder of the Complaint, however, reverses those citations, referring to 28 U.S.C. 1738C as the "Federal Definition of Marriage Act" and to 1 U.S.C. 7 as the "Federal Defense of Marriage Act."
7

the State so chooses, or to alter it, as it sees fit. See 28 U.S.C. 1738C.7 As far as counsel for the

Case 8:09-cv-00286-DOC-MLG Document 2585-1 Filed 11/06/12 Pageof 54 55 Page ID Case 8:12-cv-01137-CBM-AJW Document Filed 06/11/09 Page 34 35 of Page ID #:133 #:1965

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

859, 864-69 (8th Cir. 2006); Lofton v. Secretary of Dep't of Children & Family Servs., 358 F.3d 804, 811-27 (11th Cir. 2004); Adams v. Howerton, 673 F.2d 1036, 1041-43 (9th Cir. 1982); Dean v. District of Columbia, 653 A.2d 307, 331-33, 362-64 (D.C. 1995); Baehr v. Lewin, 852 P.2d 44, 55-57 (Haw. 1993); Baker v. Nelson, 191 N.W.2d 185, 186-87 (Minn. 1971), appeal dismissed, 409 U.S. 810, 93 S. Ct. 37, 34 L.Ed.2d 65 (1972) (mem). Indeed, a number of federal courts have specifically addressed the constitutionality of one or both sections of DOMA, and have expressly upheld them against all constitutional challenges. See Smelt v. County of Orange, 374 F. Supp. 2d 861 (C.D. Cal. 2005) (Section 3), vacated on other grounds, 447 F.3d 673 (9th Cir. 2006); Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005) (Section 2 and Section 3); In re Kandu, 315 B.R. 123 (Bankr. W. D. Wash. 2004) (Section 3), appeal dismissed Kandu v. United States Trustee, Case No. 3:04-cv-05544-FDB (W.D. Wash.) [hereinafter Kandu]; see also Bishop v. Oklahoma, 447 F. Supp. 2d 1239 (N.D. Okla. 2006) (rejecting certain constitutional challenges but deferring others pending further development). This Court should do likewise here. Romer v. Evans, which was decided before all of these cases, does not compel a different conclusion. 517 U.S. 620, 116 S. Ct. 1620, 134 L.Ed.2d 855 (1996). In Romer, the Supreme Court applied rational-basis review to invalidate a State constitutional amendment of "unprecedented" breadth that barred homosexuals from securing any protection under State or local antidiscrimination statutes or ordinances. Id. at 633. The amendment bore no rational relationship to any legitimate government interest, raising an "inevitable inference" that it was born solely "of animosity toward [homosexuals]." Id. at 634-35. For purposes of Fifth Amendment analysis, DOMA cannot be equated with the Colorado amendment struck down in Romer. "DOMA is not . . . exceptional and unduly broad." Kandu, 315 B.R. at 147-48 (distinguishing DOMA and the amendment in Romer on that basis); cf. Standhardt v. Superior Court, 77 P.3d 451, 464-65 (Ariz. Ct. App. 2003) (rejecting challenge to State definition of marriage). Codifying the traditional definition of marriage, moreover, is by no means "unprecedented." See Kandu, 315 B.R. at 148 ("DOMA simply codified that definition of marriage 24

Case 8:09-cv-00286-DOC-MLG Document 2585-1 Filed 11/06/12 Pageof 54 55 Page ID Case 8:12-cv-01137-CBM-AJW Document Filed 06/11/09 Page 35 36 of Page ID #:134 #:1966

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

historically understood by society"). And, unlike the Colorado amendment struck down in Romer, DOMA is rationally related to legitimate government interests and cannot fairly be described as "born of animosity toward the class of persons affected." Romer, 517 U.S. at 634. DOMA simply preserves longstanding federal and state policies that have afforded protections and privileges to a traditional form of marriage, while simultaneously recognizing the right of States to extend such protections and privileges to same-sex marriage. Under our federalist system, preserving the autonomy of state and federal governments to address evolving definitions of an age-old societal institution is itself a legitimate governmental interest. Moreover, because DOMA protected "the ability of elected officials to decide matters related to homosexuality," including their right to recognize same-sex marriage, it plainly was not born solely as a result of animosity towards homosexuals. See H.R. Rep. No. 104-664, at 17, reprinted in 1996 U.S.C.C.A.N. at 2921. Nor does the Supreme Court's decision in Lawrence v. Texas overrule or otherwise undermine the precedents, cited above, that uphold DOMA. In Lawrence, the Supreme Court held that the government cannot criminalize private, consensual, adult sodomy. At the same time, the Court unequivocally noted that the case before it did "not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter." 539 U.S. 558, 578, 123 S. Ct. 2472, 156 L.Ed.2d 508 (2003) (emphasis added). Thus, in light of this limiting language, Lawrence simply does not address the affirmative right to receive official and public recognition of a same-sex relationship. Because Lawrence declined to address any question regarding marriage, it does not disturb prior precedents in which the courts have declined to recognize a federal constitutional right to same-sex marriage. B. DOMA Does Not Impinge Upon Rights That Have Been Recognized as Fundamental

Even in the absence of the foregoing precedents, plaintiffs' equal protection and substantive 24 due process claims still would fail as a matter of law. Most such claims are subject to "rational 25 basis" review, under which the challenged statute will be upheld "as long as it bears a rational 26 relation to a legitimate state interest." See Squaw Valley Dev. Co. v. Goldberg, 375 F.3d 936, 944 27 28 25

Case 8:09-cv-00286-DOC-MLG Document 2585-1 Filed 11/06/12 Pageof 54 55 Page ID Case 8:12-cv-01137-CBM-AJW Document Filed 06/11/09 Page 36 37 of Page ID #:135 #:1967

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

(9th Cir. 2004) (equal protection); accord Richardson v. City & County of Honolulu, 124 F.3d 1150, 1162 (9th Cir. 1997) (due process). Only if the statute "makes a suspect classification or implicates a fundamental right" will it be subjected to a higher standard of review. National Ass'n for Advancement of Psychoanalysis, 228 F.3d at 1049. In this case, because DOMA does not impinge upon any fundamental right, it is not entitled to heightened scrutiny. A fundamental constitutional right protected by the Due Process Clause is one that is "objectively, deeply rooted in this Nation's history and tradition" and "implicit in the concept of ordered liberty." Washington v. Glucksberg, 521 U.S. 702, 720-21, 117 S. Ct. 2258, 138 L.Ed.2d 772 (1997). The Supreme Court has mandated extreme caution in elevating individual liberty interests, no matter how genuinely and profoundly important they may be to the parties asserting them, to the status of fundamental constitutional rights. As the Court has explained: 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. Glucksberg, id. at 720 (citations and internal quotation marks omitted); see Williams v. Attorney Gen. of Ala., 378 F.3d 1232, 1250 (11th Cir. 2004) (observing that conferring constitutional status on an asserted right prevents future revision through democratic process). Accordingly, only a "small number" of substantive rights qualify under the Fifth Amendment as "fundamental." United States v. Deters, 143 F.3d 577, 582 (10th Cir. 1998). A court must reach a "careful description" of the alleged right before determining whether it is fundamental. Glucksberg, 521 U.S. at 721. Most importantly, the asserted right must be defined with specificity, rather than in general terms. Only when this specific, "careful description" is reached can a court proceed to determine whether the asserted right is fundamental.8

For example, in Washington v. Glucksberg, the right was not properly characterized a "right to die," but rather a "right to commit suicide." 521 U.S. at 722-23. Similarly, in Reno v. Flores, in which juvenile aliens challenged their detention by the government, the Supreme Court rejected an invitation to characterize the asserted right as "freedom from physical restraint," and (continued...) 26

Case 8:09-cv-00286-DOC-MLG Document 2585-1 Filed 11/06/12 Pageof 54 55 Page ID Case 8:12-cv-01137-CBM-AJW Document Filed 06/11/09 Page 37 38 of Page ID #:136 #:1968

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

Here, the asserted right on which plaintiffs' claims rest in this case is not a right to marry. DOMA does not prohibit gay and lesbian couples from marrying. It does not prohibit the States from acknowledging gay marriages. And it does not in any way penalize those couples, or States, that do so. Instead, plaintiffs' claims rest on an asserted right to receive federal benefits on the basis of a relationship other than the sole relationship on which Congress (and many States) have decided to base eligibility for such benefits. Thus, properly characterized, the right asserted here is far from fundamental, as there is no constitutional right to State or federal financial benefits. See, e.g., Lavine v. Milne, 424 U.S. 577, 584 n.9, 96 S. Ct. 1010, 47 L.Ed.2d 249 (1976) ("Welfare benefits are not a fundamental right, and neither the State nor Federal Government is under any sort of constitutional obligation to guarantee minimum levels of support.") (citing Dandridge v. Williams, 397 U.S. 471, 90 S. Ct. 1153, 25 L.Ed.2d 491 (1970)). Even viewing the right asserted here as the right of gay and lesbian couples to marry, DOMA does not directly or substantially interfere with the ability of anyone, including homosexuals, to marry the individual of his or her choice. Instead, Section 2 of DOMA simply underscores that, notwithstanding the evolution in some States' legal understanding of marriage, the remaining States may continue to follow their own policy so far as recognition of same-sex marriage is concerned, a prerogative they already retained, as discussed above, under the conflict-of-laws principles that underlie the Full Faith and Credit Clause. Hence, under DOMA, gay and lesbian couples suffer no greater interference with their ability to obtain recognition of their marriages, either in the States where they were wed, or elsewhere. Likewise, Section 3 of DOMA merely clarifies that federal policy is to make certain benefits available only to those persons united in heterosexual marriage, as opposed to any other possible relationship defined by law, family, or affection. As a result, gay and lesbian individuals who unite

(...continued) instead characterized it as "the 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 willingand-able private custodian rather than of a government-operated or government-selected child-care institution." 507 U.S. 292, 302, 113 S. Ct. 1439, 123 L.Ed.2d 1 (1993). 27

Case 8:09-cv-00286-DOC-MLG Document 2585-1 Filed 11/06/12 Pageof 54 55 Page ID Case 8:12-cv-01137-CBM-AJW Document Filed 06/11/09 Page 38 39 of Page ID #:137 #:1969

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

in matrimony are denied no federal benefits to which they were entitled prior to their marriage; they remain eligible for every benefit they enjoyed beforehand. DOMA simply provides, in effect, that as a result of their same-sex marriage they will not become eligible for the set of benefits that Congress has reserved exclusively to those who are related by the bonds of heterosexual marriage. In short, then, the failure in this manner to recognize a certain subset of marriages that are recognized by a certain subset of States cannot be taken as an infringement on plaintiffs' rights, even if same-sex marriage were accepted as a fundamental right under the Constitution. See DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 196, 109 S. Ct. 998, 103 L.Ed.2d 249 (1989) (Due Process Clause "generally confer[s] 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"); Lyng v. Automobile Workers, 485 U.S. 360, 368, 108 S. Ct. 1184, 99 L.Ed.2d 380 (1987) (holding that a decision "not to subsidize the exercise of a fundamental right does not infringe the right."); Harris v. McRae, 448 U.S. 297, 317-18, 100 S. Ct. 2671, 65 L.Ed.2d 784 (1980) ("Although the liberty protected by the Due Process Clause affords protection against unwarranted government interference with freedom of choice in the context of certain personal decisions, it does not confer an entitlement to such [government assistance] as may be necessary to realize all the advantages of that freedom."); see also Rust v. Sullivan, 500 U.S. 173, 201, 111 S. Ct. 1759, 114 L.Ed.2d 233 (1991); Webster v. Reproductive Health Servs., 492 U.S. 490, 507, 109 S. Ct. 3040, 106 L.Ed.2d 410 (1989). Finally, regardless of whether same-sex marriage is appropriate policy, under current legal precedent there is no constitutional right to it, and that precedent is binding on these parties and this Court. While the Supreme Court has held that the right to marry is "fundamental," Zablocki v. Redhail, 434 U.S. 374, 383-87, 98 S. Ct. 673, 54 L.Ed.2d 618 (1978), that right has not been held to encompass the right to marry someone of the same sex. To the contrary, in Baker v. Nelson, the Supreme Court dismissed a claim that the Constitution provides a right to same-sex marriage for lack of a "substantial federal question." 409 U.S. 810, 93 S. Ct. 37, 34 L.Ed.2d 65 (1972) (Mem). In Baker, the Minnesota Supreme Court had rejected the contention that a State statute limiting 28

Case 8:09-cv-00286-DOC-MLG Document 2585-1 Filed 11/06/12 Pageof 54 55 Page ID Case 8:12-cv-01137-CBM-AJW Document Filed 06/11/09 Page 39 40 of Page ID #:138 #:1970

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

marriage to one man and one woman violated federal due process and equal protection principles. The court found no "fundamental right" to same-sex marriage, 191 N.W.2d at 186-87, and concluded that the traditional definition of marriage effects no "invidious discrimination," and that the definition easily withstood rational-basis review. Id. at 187. Invoking the Supreme Court's then-mandatory appellate jurisdiction, see 28 U.S.C. 1257(2) (repealed 1988), a same-sex couple sought review of those rulings. See Jurisdictional Statement, Baker v. Nelson, No. 71-1027, at 3 (Attachment 2 hereto)9 (questions presented include whether denial of same-sex marriage "deprives appellants of their liberty to marry . . . without due process of law under the Fourteenth Amendment" and "violates their rights under the equal protection clause . . .").10 Upon review, the Supreme Court dismissed the appeal "for want of a substantial federal question." 409 U.S. at 810. The decision in Baker has precedential effect and is binding here. As the Supreme Court has explained, a dismissal for lack of a substantial federal question is a decision on the merits. See Hicks v. Miranda, 422 U.S. 332, 343-44, 95 S. Ct. 2281, 45 L.Ed.2d 223 (1975). Referring to an earlier appeal that had been dismissed for lack of a substantial federal question, the Court said in Hicks: That case was an appeal from a decision by a state court upholding a state statute against federal constitutional attack. A federal constitutional issue was properly presented, it was within our [mandatory] appellate jurisdiction . . . and we had no discretion to refuse adjudication of the case on its merits . . . . We are not obligated to grant the case plenary consideration, and we did not; but we were required to deal with its merits. We did so by concluding that the appeal should be dismissed because the constitutional challenge to the California statute was not a substantial one.

Submission of the two attachments to this memorandum does not convert the United States' motion to dismiss into a motion for summary judgment. See, e.g., Papasan v. Allain, 478 U.S. 265, 268 n.1, 106 S. Ct. 2932, 92 L.Ed.2d 209 (1986) (court may consider matters of public record in adjudicating motion to dismiss); Shaw v. Hahn, 56 F.3d 1128, 1129 n.1 (9th Cir. 1995) ("In deciding whether to dismiss a claim under [Rule] 12(b)(6), a court may look beyond the plaintiff's complaint to matters of public record."). Because Baker held that the denial of same-sex marriage did not violate the equal protection clause, it also relevant to our argument that DOMA does not make distinctions based on any suspect classifications. See infra at Part V.C. 29
10

Case 8:09-cv-00286-DOC-MLG Document 2585-1 Filed 11/06/12 Pageof 54 55 Page ID Case 8:12-cv-01137-CBM-AJW Document Filed 06/11/09 Page 40 41 of Page ID #:139 #:1971

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

Id. (emphasis added). As the Eighth Circuit has observed, therefore, the Supreme Court's dismissal in Baker is "binding on the lower federal courts." McConnell v. Nooner, 547 F.2d 54, 56 (8th Cir. 1976) (per curiam); accord Adams, 673 F.2d at 1039 n.2 (acknowledging that Supreme Court's dismissal in Baker "operate[d] as a decision on the merits"). Moreover, "dismissals for want of a substantial federal question without doubt reject the specific challenges presented in the statement of jurisdiction." Mandel v. Bradley, 432 U.S. 173, 176, 97 S. Ct. 2238, 53 L.Ed.2d 199 (1977). Accordingly, Baker stands for the proposition that equal protection principles do not bar the States from limiting marriage to one man and one woman. This precedent is binding on the federal courts. See Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484, 109 S. Ct. 1917, 104 L.Ed.2d 526 (1989) ("If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, [a lower court] should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions."); see also Agostini v. Felton, 521 U.S. 203, 237-38, 117 S. Ct. 1997, 138 L.Ed.2d 391 (1997) ("The Court neither acknowledges nor holds that other courts should ever conclude that its more recent cases have, by implication, overruled an earlier precedent."); Wilson, 354 F. Supp. 2d at 1305 ("The Supreme Court has not explicitly or implicitly overturned its holding in Baker or provided the lower courts, including this Court, with any reason to believe that the holding is invalid today."). It follows, therefore, that the federal government may incorporate the traditional opposite-sex definition of marriage for purposes of federal statutes, and (in exercise of its express authority under the Full Faith and Credit Clause) may permit the States to retain this definition as well. In short, therefore, DOMA, understood for what it actually does, infringes on no one's rights, and in all events it infringes on no right that has been constitutionally protected as fundamental, so as to invite heightened scrutiny. C. DOMA Does Not Rest on Any Suspect Classification

Plaintiffs also maintain that DOMA discriminates on the basis of sexual orientation, in violation of their right to the equal protection of the law, see Complaint, 20, but DOMA is not subject to heightened scrutiny on that basis. As an initial matter, plaintiffs misperceive the nature of 30

Case 8:09-cv-00286-DOC-MLG Document 2585-1 Filed 11/06/12 Pageof 54 55 Page ID Case 8:12-cv-01137-CBM-AJW Document Filed 06/11/09 Page 41 42 of Page ID #:140 #:1972

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

the line that Congress has drawn. DOMA does not discriminate against homosexuals in the provision of federal benefits. To the contrary, discrimination on the basis of sexual orientation is prohibited in federal employment and in a wide array of federal benefits programs by law, regulation, and Executive order. See, e.g., 13 C.F.R. 127.303(b)(3) (small business assistance); 31 C.F.R. 0.214(a) (prohibiting discrimination by Department of the Treasury employees against other employees, applicants for employment, or "person[s] dealing with the Department on official business"); Exec. Order No. 13,160, 1-102, 65 Fed. Reg. 39,773 (June 23, 2000), reprinted in 42 U.S.C. 2000d note (nondiscrimination in federally conducted education and training programs); Exec. Order No. 11,478, 1, 34 Fed. Reg. 12,985 (Aug. 8, 1969), reprinted as amended in 42 U.S.C.A. 2000e note (equal employment opportunity in federal government). Within the context of such programs, Section 3 of DOMA does not distinguish among persons of different sexual orientations, but rather it limits federal benefits to those who have entered into the traditional form of marriage. See infra at 33-36. Section 2 merely reserves to the States the prerogative to make the same choice. Even if viewed as establishing a classification on the basis of sexual orientation, DOMA still could not be subjected to heightened scrutiny on the theory that it draws any suspect classification; the Ninth Circuit has concluded that sexual orientation does not constitute a suspect classification. See High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563, 571 (9th Cir. 1990) (rejecting challenge to policy of conducting expanded investigations of homosexual applicants for security clearances). That holding is of course binding here. DOMA also does not discriminate on the basis of sex. See Complaint 19. To begin with, the effect of DOMA to the extent the statute has any direct effect on a person is the same on men and women. See Wilson, 354 F. Supp. 2d at 1307-08 ("DOMA does not discriminate on the basis of sex because it treats women and men equally."). Thus, as the court noted in Kandu, in holding that DOMA does not discriminate on the basis of sex, "Women, as members of one class, are not being treated differently from men, as members of a different class." Kandu, 315 B.R. at 143.

31

Case 8:09-cv-00286-DOC-MLG Document 2585-1 Filed 11/06/12 Pageof 54 55 Page ID Case 8:12-cv-01137-CBM-AJW Document Filed 06/11/09 Page 42 43 of Page ID #:141 #:1973

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

Loving v. Virginia is not to the contrary. There the Supreme Court rejected a contention that the assertedly "equal application" of a statute prohibiting interracial marriage immunized the statute from strict scrutiny. 388 U.S. 1, 8, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967). The Court had little difficulty concluding that the statute, which applied only to "interracial marriages involving white persons," was "designed to maintain White Supremacy" and therefore unconstitutional. Id. at 11. No comparable purpose is present here, however, for DOMA does not seek in any way to advance the "supremacy" of men over women, or of women over men. Thus DOMA cannot be "traced to a . . . purpose" to discriminate against either men or women. Personnel Adm'r v. Feeney, 442 U.S. 256, 272, 99 S. Ct. 2282, 60 L.Ed.2d 870 (1979). In upholding the traditional definition of marriage, numerous courts have expressly rejected an alleged analogy to Loving. See, e.g., Kandu, 315 B.R. at 144 ("[T]he Supreme Court did not hold [in Lawrence] that same-sex couples constitute a suspect or semi-suspect class under an equal protection analysis."); Baker v. Vermont, 744 A.2d 864, 880 n.13 (Vt. 1999) (rejecting claim that "defining marriage as the union of one man and one woman discriminates on the basis of sex"); Singer v. Hara, 522 P.2d 1187, 1191-92 (Wash. Ct. App. 1974); Baker v. Nelson, 191 N.W.2d at 187; see also Dean, 653 A.2d at 362-63 & n.2 (Steadman, A.J., concurring) ("It seems to me to stretch the concept of gender discrimination to assert that it applies to treatment of same-sex couples differently from opposite-sex couples."). D. DOMA Satisfies Rational-Basis Review

Because DOMA neither burdens fundamental rights nor allocates federal benefits on the basis of a suspect classification, it is necessarily subject only to rational-basis review. See, e.g., Glucksberg, 521 U.S. at 728. The Supreme Court has described the elements of rational-basis review in Heller v. Doe: [R]ational-basis review . . . is not a license for courts to judge the wisdom, fairness, or logic of legislative choices. [A] classification neither involving fundamental rights nor proceeding along suspect lines is accorded a strong presumption of validity. Such a classification cannot [be found unconstitutional] if there is a rational relationship between the [challenged government action] and some legitimate governmental purpose. . . . [A] classification must be upheld . . . if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.

32

Case 8:09-cv-00286-DOC-MLG Document 2585-1 Filed 11/06/12 Pageof 54 55 Page ID Case 8:12-cv-01137-CBM-AJW Document Filed 06/11/09 Page 43 44 of Page ID #:142 #:1974

1 2 3 4 5 6

[The government], moreover, has no obligation to produce evidence to sustain the rationality of a statutory classification. A legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data. [T]he burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it, whether or not the basis has a foundation in the record. Finally, courts are compelled under rational-basis review to accept a legislature's generalizations even when there is an imperfect fit between means and ends. A classification does not fail rational-basis review because it is not made with mathematical nicety or because in practice it results in some inequality. 509 U.S. 312, 319-20, 113 S. Ct. 2637, 125 L.Ed.2d 257 (1993) (emphasis added) (citations and

7 internal quotation marks omitted); see Dittman v. California, 191 F.3d 1020, 1031 (9th Cir. 1999) 8 ("It is . . . irrelevant for constitutional purposes whether, at the time the legislature acted, it 9 articulated the 'conceivable basis' for the legislation.") (emphasis added). As the Ninth Circuit has 10 held, a court applying rational-basis review "may even hypothesize the motivations of the state 11 legislature to find a legitimate objective promoted by the provision under attack." Shaw v. Oregon 12 Public Employees' Retirement Bd., 887 F.2d 947, 948-49 (9th Cir. 1989) (internal quotation marks 13 omitted). Obviously, this imposes a "heavy burden" on the plaintiffs, Dittman, 191 F.3d at 1031; 14 rational-basis analysis is, in short, "a paradigm of judicial restraint." FCC v. Beach 15 Communications, Inc., 508 U.S. 307, 314, 113 S. Ct. 2096, 124 L. Ed. 2d 211 (1993); see 16 Kahawaiolaa v. Norton, 386 F.3d 1271, 1279 (9th Cir. 2004) (rational-basis standard is "highly 17 deferential"). 18 DOMA withstands review under this highly deferential standard. In light of society's still19 evolving understanding of marriage, the statute adopted what amounted to a cautious policy of 20 federal neutrality towards a new form of marriage. DOMA maintains federal policies that have long 21 sought to promote the traditional and uniformly-recognized form of marriage, recognizes the right of 22 each State to expand the traditional definition if it so chooses, but declines to obligate federal tax23 payers in other States to subsidize a form of marriage their own States do not recognize. This policy 24 of neutrality maximizes state autonomy and democratic self-governance in an area of traditional 25 state concern, and preserves scarce government resources. It is thus entirely rational. Plaintiffs' 26 contrary claim rests, at bottom, on an improper effort at constitutional bootstrapping: the fact that 27 28 33

Case 8:09-cv-00286-DOC-MLG Document 2585-1 Filed 11/06/12 Pageof 54 55 Page ID Case 8:12-cv-01137-CBM-AJW Document Filed 06/11/09 Page 44 45 of Page ID #:143 #:1975

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

some States have decided to expand the definition of marriage cannot create an equal protectionbased duty in other States, or the federal government, to grant such recognition. As Congress explained when enacting DOMA,"[t]here are relations of deep, abiding love" between persons of all kinds, "brothers and sisters, parents and children, grandparents and grandchildren," that "cannot be diminished as loves [just] because they are not . . . expressed in marriage." H.R. Rep. No. 104-664, at 13, reprinted in 1996 U.S.C.C.A.N. at 2917 (internal quotation marks omitted). But the sole relationship on the basis of which Congress and many States have long made certain benefits available is the legally recognized union of marriage between a man and a woman. In recent years, of course, some States have extended the same legal recognition, protections and benefits to same-sex marriages. Such recognitions, however, do not compel Congress to extend to this newly recognized form of marriage the same federal benefits it chose to afford to the centuries-old institution of heterosexual marriage. Instead, under rational basis scrutiny, Congress is entitled to adopt a cautious, wait-and-see approach to newer types of marriage and to society's stillevolving understandings of the institution. Legislatures may "refin[e] their preferred approach as circumstances change and as they develop a more-nuanced understanding of how best to proceed." Massachusetts v. EPA, 549 U.S. 497, 524, 127 S. Ct. 1438, 167 L.Ed.2d 248 (2007); see SEC v. Chenery Corp., 332 U.S. 194, 202, 67 S. Ct. 1575, 91 L.Ed. 1995 (1947) ("Some principles must await their own development, while others must be adjusted to meet particular, unforeseeable situations."); Butler v. Apfel, 144 F.3d 622, 625 (9th Cir.1998) ("[R]eform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind."); Medeiros v. Vincent, 431 F.3d 25, 31-32 (1st Cir. 2005) ("[A] statute or regulation is not lacking in a rational basis simply because it addresses a broader problem in small or incremental stages. It is only necessary that there be some rational relation between the method chosen and the intended result.") (citation omitted). Section 3 of DOMA reflects just such an approach: it maximizes democratic flexibility and self-governance under our federalist system, by adopting a policy of federal neutrality with respect to a matter that is primarily the concern of state government. Because all 50 States recognize hetero34

Case 8:09-cv-00286-DOC-MLG Document 2585-1 Filed 11/06/12 Pageof 54 55 Page ID Case 8:12-cv-01137-CBM-AJW Document Filed 06/11/09 Page 45 46 of Page ID #:144 #:1976

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

sexual marriage, it was reasonable and rational for Congress to maintain its longstanding policy of fostering this traditional and universally-recognized form of marriage. At the same time, because Congress recognized both the freedom of States to expand the traditional definition, and the freedom of other States to decline to recognize this newer form of marriage, a policy of neutrality dictated that Congress not extend federal benefits to new forms of marriage recognized by some States. Given the strength of competing convictions on this still-evolving issue, Congress could reasonably decide that federal benefits funded by taxpayers throughout the nation should not be used to foster a form of marriage that only some States recognize, and that other States do not. See H.R. Rep. No. 104-664, at 16, reprinted in 1996 U.S.C.C.A.N. at 2920 (DOMA advances government's interest in "protecting state sovereignty and democratic self-governance."); The White House, Office of Communications, President on Signing Same Gender Marriage Ban, 1996 WL 533626 (Sept. 22, 1996) ("The Act confirms the right of each state to determine its own policy with respect to same gender marriage . . . ."). Although the Constitution does not require Congress to be so solicitous of divergent state policies and prerogatives, equal protection principles do not forbid such solicitude as irrational, particularly on matters of evolving and contentious social policy. See Mixon v. Ohio, 193 F.3d 389, 403 (6th Cir. 1999) ("State legislatures need the freedom to experiment with different techniques to advance public education and this need to experiment alone satisfies the rational basis test."); see also Barefoot v. City of Wilmington, 306 F.3d 113, 123 (4th Cir. 2002) ("[S]tates frequently have a variety of annexation procedures; the need to experiment to find the best procedure is itself a rational basis for the North Carolina law."); Moore v. Detroit School Reform Bd., 293 F.3d 352, 372 (6th Cir 2002) (holding that the Equal Protection Clause does not prohibit State and local "experimentation where no suspect classification or fundamental right is involved"); cf. Morton v. Mancari, 417 U.S. 535, 555, 94 S. Ct. 2474, 41 L.Ed.2d 290 (1974) (refusing to disturb, on equal protection grounds, a congressional judgment "rationally designed to further Indian self-government"); Artichoke Joe's Cal. Grand Casino v. Norton, 353 F.3d 712, 732-35 (9th Cir. 2003) (rejecting equal protection challenge to Tribal-State compacts that Congress adopted "to resolve the conflicting interests of the 35

Case 8:09-cv-00286-DOC-MLG Document 2585-1 Filed 11/06/12 Pageof 54 55 Page ID Case 8:12-cv-01137-CBM-AJW Document Filed 06/11/09 Page 46 47 of Page ID #:145 #:1977

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

tribes and the states, which it acknowledged as two equal sovereigns") (citation and internal quotation marks omitted); Newbury v. Prisoner Review Bd., 791 F.2d 81, 87 (7th Cir. 1986) (rejecting due process challenge to parole procedures, partly based on "the public interest in encouraging state experimentation in proper parole release procedures"). Indeed, when "[t]hroughout the Nation, Americans are engaged in an earnest and profound debate about the morality, legality, and practicality" of a particular social policy, it is entirely rational for Congress (and the courts) to "permit[ ] this debate to continue, as it should in a democratic society." Glucksberg, 521 U.S. at 751. Thus, in order to adopt a measured response of federal neutrality, Congress had to draw lines and distinctions between different types of State-recognized marriage. The very process of linedrawing "inevitably requires that some persons who have an almost equally strong claim to favored treatment be placed on different sides of the line, and the fact [that] the line might have been drawn differently at some points is a matter for legislative, rather than judicial, consideration." United States R.R. Retirement Bd. v. Fritz, 449 U.S. 166, 179, 101 S. Ct. 453, 66 L.Ed.2d 368 (1980) (citation and internal quotation marks omitted). As the Ninth Circuit has observed, "[a] classification does not fail rational-basis review because it 'is not made with mathematical nicety or because in practice it results in some inequality.'" Aleman v. Glickman, 217 F.3d 1191, 1201 (9th Cir. 2000) (quoting Dandridge, 397 U.S. at 485). Thus, "it is within the province of Congress, not the courts, to weigh the evidence and legislate on such issues, unless it can be established that the legislation is not rationally related to a legitimate governmental end." Kandu, 315 B.R. at 146 (emphasis added). The constitutional propriety of Congress's decision to decline to extend federal benefits immediately to newly recognized types of marriages is bolstered by Congress's articulated interest in preserving the scarce resources of both the federal and State governments. DOMA ensures that evolving understandings of the institution of marriage at the State level do not place greater financial and administrative obligations on federal and state benefits programs. Preserving scarce government resources and deciding to extend benefits incrementally are well-recognized legitimate interests under rational-basis review. See Butler, 144 F.3d at 625 ("There is nothing irrational about Congress's stated goal of conserving social security resources, and Congress can incrementally 36

Case 8:09-cv-00286-DOC-MLG Document 2585-1 Filed 11/06/12 Pageof 54 55 Page ID Case 8:12-cv-01137-CBM-AJW Document Filed 06/11/09 Page 47 48 of Page ID #:146 #:1978

1 2 3 4 5 6 7 8

pursue that goal."); Hassan v. Wright, 45 F.3d 1063, 1069 (7th Cir. 1995) ("[P]rotecting the fisc provides a rational basis for Congress' line drawing in this instance."). Congress expressly relied on these interests in enacting DOMA: Government currently provides an array of material and other benefits to married couples in an effort to promote, protect, and prefer the institution of marriage. . . . If [a State] were to permit homosexuals to marry, these marital benefits would, absent some legislative response, presumably have to be made available to homosexual couples and surviving spouses of homosexual marriages on the same terms as they are now available to opposite-sex married couples and spouses. To deny federal recognition to same-sex marriages will thus preserve scarce government resources, surely a legitimate government purpose. H.R. Rep. No. 104-664, at 18, reprinted in 1996 U.S.C.C.A.N. at 2922.

9 In the final analysis, plaintiffs contend that equal protection principles effectively precluded 10 Congress from adopting a federal policy of neutrality in the face of evolving state understandings of 11 marriage. On plaintiffs' view, even though Congress was under no independent constitutional 12 obligation to recognize same-sex marriage before any State did so, once a single State legalized 13 same-sex marriage, equal protection principles mandated that Congress extend federal benefits to 14 such marriages, or withdraw them from all marriages. No constitutional principle, however, 15 mandates such a result, which is fundamentally at odds with our federalist scheme of divided 16 sovereignty, and which could be a substantial disincentive for States to recognize new rights and 17 privileges as circumstances evolve. 18 VI. 19 Plaintiffs also assert that DOMA constitutes "an undue invasion of the Right of Privacy," 20 citing Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L.Ed.2d 510 (1965). See 21 Complaint 17, 27, 28. This claim must fail, first, because the Supreme Court has rejected a "right 22 to privacy" claim in relation to same-sex marriage. One of the arguments made in Baker v. Nelson, 23 referred to above, was that Minnesota's refusal to permit same-sex marriage constituted "an unwar24 ranted invasion of . . . privacy" in violation of the Constitution. See Jurisdictional Statement, Baker 25 v. Nelson, No. 71-1027, at 18 (Attachment 2 hereto). In dismissing the appeal in Baker "for want of 26 27 28 37 DOMA Does Not Violate the Right to Privacy

Case 8:09-cv-00286-DOC-MLG Document 2585-1 Filed 11/06/12 Pageof 54 55 Page ID Case 8:12-cv-01137-CBM-AJW Document Filed 06/11/09 Page 48 49 of Page ID #:147 #:1979

1 2 3 4 5 6 7 8

a substantial federal question," the Supreme Court necessarily addressed the merits of that claim, and rejected it. 409 U.S. 810 (1972) (Mem); see Hicks v. Miranda, 422 U.S. at 343-44. Even if Baker were not dispositive in this regard, this Court should reject plaintiffs' right-toprivacy claim. The Supreme Court has described the contours of this right as follows: The Constitution does not explicitly mention any right of privacy. In a line of decisions, however . . . the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. . . . These decisions make it clear that only personal rights that can be deemed "fundamental" or "implicit in the concept of ordered liberty," are included in this guarantee of personal privacy. Roe v. Wade, 410 U.S. 113, 152, 93 S. Ct. 705, 35 L.Ed.2d 147 (1973) (citations omitted) (emphasis

9 added); see Paul v. Davis, 424 U.S. 693, 712-13, 96 S. Ct. 1155, 47 L.Ed.2d 405 (1976). The Ninth 10 Circuit has reiterated the underlined language. See Grummett v. Rushen, 779 F.2d 491, 493-94 (9th 11 Cir. 1985). And this Court has observed more recently: "The federal constitutional right of privacy 12 is extremely narrow. The right is limited to those personal rights which are 'fundamental' or 'implicit 13 in the concept of ordered liberty.'" Yorkshire v. IRS, 829 F. Supp. 1198, 1202 (C.D. Cal. 1993) 14 (emphasis added); accord Brown v. Hot, Sexy and Safer Productions, Inc., 68 F.3d 525, 532 (1st Cir. 15 1995); Shields v. Burge, 874 F.2d 1201, 1210 (7th Cir. 1989). 16 Under this precedent, plaintiffs cannot rely on a "right to privacy" to supersede DOMA, for 17 as explained above, a "fundamental" right to same-sex marriage has not been recognized as such by 18 the courts. See supra at 25-30; see also Smelt I, 374 F. Supp. 2d at 877-79; Wilson v. Ake, 354 19 F. Supp. 2d at 1306-07; Kandu, 315 B.R. at 140. Further, as also explained above, even if same-sex 20 marriage had been acknowledged as a fundamental right, there would still be no "fundamental" right 21 to receive federal benefits based on a gay or lesbian marriage, or to require other States to recognize 22 such a marriage. 23 The Supreme Court's decision in Lawrence v. Texas does not support plaintiffs' right-to24 privacy claim. Although the Court there relied in part on the right to privacy, the decision dealt with 25 "private" conduct an adjective that appears twenty-four times in the majority decision. 539 U.S. 26 558, 564-65 (2003). The Court struck down the subject statute because it "touch[ed] upon the most 27 28 38

Case 8:09-cv-00286-DOC-MLG Document 2585-1 Filed 11/06/12 Pageof 54 55 Page ID Case 8:12-cv-01137-CBM-AJW Document Filed 06/11/09 Page 49 50 of Page ID #:148 #:1980

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

private human conduct, sexual behavior, and in the most private of places, the home." That statute, the Court continued, sought "to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals. . . . [A]dults may choose to enter upon this relationship in the confines of their homes and their own private lives . . . ." Id. at 567 (emphasis added). Thus, the Court emphasized that the case before it did "not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter." Id. at 578. Lawrence thus offers no support for the proposition that DOMA violates plaintiffs' right to privacy. VII. DOMA Cannot Be Said to Infringe Upon any Rights of Speech Plaintiffs next assert, without elaboration or any specific factual allegations, that DOMA violates their "Right of Free Speech." See Complaint 17. Apparently plaintiffs' theory is that their marriage constitutes "speech" under the First Amendment. This claim is groundless because, first, DOMA does not curtail anyone's right to marry the person of his or her choice, just as it does not affect an individual's right to travel or right to privacy. DOMA merely permits each State to follow its own policy with regard to same-sex marriage, and defines "marriage" and "spouse" for purposes of federal statutes. It does not affect the ability of any person to contract any marriage permitted by State law, and it cannot, for this reason alone, be said to infringe upon any speech rights related to same-sex marriage. Even if DOMA could be seen as limiting one's ability to enter into a same-sex marriage, plaintiffs' "free speech" claim would fail because marriage, whether same-sex, or heterosexual, is not "expressive conduct" under the First Amendment. The Supreme Court has "rejected the view that conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea." See Rumsfeld v. Forum for Academic & Inst'l Rights, 547 U.S. 47, 65-66, 126 S. Ct. 1297, 164 L.Ed.2d 156 (2006) (internal quotation marks omitted). Rather, conduct may be considered speech under the First Amendment only if it is "inherently expressive" that is, when it is "the equivalent of speech." See id. at 66; James v. City of Long Beach, 18 F. Supp. 2d 1078, 1082 (C.D. Cal. 1998). 39

Case 8:09-cv-00286-DOC-MLG Document 2585-1 Filed 11/06/12 Pageof 54 55 Page ID Case 8:12-cv-01137-CBM-AJW Document Filed 06/11/09 Page 50 51 of Page ID #:149 #:1981

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

In determining whether conduct falls within the First Amendment, the courts consider "whether an intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it." See Texas v. Johnson, 491 U.S. 397, 404, 109 S. Ct. 2533, 105 L.Ed.2d 342 (1989) (internal quotation marks omitted)). The courts also examine whether the conduct in question is "integral to, or commonly associated with, expression," and whether "the challenged statute is directed narrowly and specifically at expression or conduct commonly associated with expression." See Roulette v. City of Seattle, 97 F.3d 300, 304, 305 (9th Cir. 1996) (internal quotation marks omitted).11 Whether conduct is expressive must be judged based on the conduct alone, not in light of whatever speech may accompany it. See Forum for Academic & Inst'l Rights, 547 U.S. at 66. If it is "unclear" what message the actor intends to convey, it will not constitute expressive conduct. See Villegas v. City of Gilroy, 363 F. Supp. 2d 1207, 1217-18 (N.D. Cal. 2005). "The party asserting that [his] conduct is expressive bears the burden of demonstrating that the First Amendment applies, and that party must advance more than a mere 'plausible contention' that its conduct is expressive." Church of Amer. Knights of the Ku Klux Klan v. Kerik, 356 F.3d 197, 205 (2d Cir. 2004) (quoting Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 n.5, 104 S. Ct. 3065, 82 L.Ed.2d 221 (1984)). Getting married or being married does not, under the circumstances presented here, constitute "expressive conduct" pursuant to these principles. Marrying is not "inherently expressive" or "commonly associated" with expression, and no "particularized message" is likely to be "understood" from the plaintiffs' being married.12 See Forum for Academic & Inst'l Rights, 547 U.S.
11

Thus, for example, picketing, burning a flag, wearing a black armband, or dancing for an audience may constitute "speech," see Texas v. Johnson, 491 U.S. at 404-06; Willis v. Town of Marshall, N.C., 426 F.3d 251, 257-61 (4th Cir. 2005), whereas attending a sports event, possessing a firearm, engaging in sexual activity in a commercial establishment, or dancing for one's own enjoyment (even in a public place) does not. See James v. City of Long Beach, 18 F. Supp. 2d at 1082-83; Nordyke v. King, 319 F.3d 1185, 1189-90 (9th Cir. 2003); Arcara v. Cloud Books, Inc., 478 U.S. 697, 705, 106 S. Ct. 3172, 92 L.Ed.2d 568 (1986); Willis, 426 F.3d at 257-61. Without any accompanying speech, an observer would not even know, for example, whether plaintiffs were expressing their feelings for each other, their views about same-sex marriage (continued...) 40
12

Case 8:09-cv-00286-DOC-MLG Document 2585-1 Filed 11/06/12 Pageof 54 55 Page ID Case 8:12-cv-01137-CBM-AJW Document Filed 06/11/09 Page 51 52 of Page ID #:150 #:1982

1 2 3 4 5 6 7 8

at 66; Texas v. Johnson, 491 U.S. at 404; Roulette, 97 F.3d at 304. As this Court observed in relation to plaintiffs' First Amendment claim against the State statute in their earlier action, "[i]t is not readily apparent [that] obtaining a marriage license is protected First Amendment activity." Smelt I, 374 F. Supp. 2d at 867. Similarly, the Ninth Circuit noted, in affirming this Court's decision to abstain from deciding plaintiffs' State-law claim: We do not overlook Smelt and Hammer's claim that this case touches on First Amendment issues, which should dissuade us from abstention. . . . But it is difficult, or impossible, to see a true speech problem here . . . . All that is involved here is the failure to issue a marriage license. Smelt II, 447 F.3d at 681 n.22; see Samuels v. New York State Dep't of Health, 811 N.Y.S.2d 136,

9 146-47 (N.Y. App. Div. 2006) (holding that State's prohibition of same-sex marriage did not violate 10 constitutional free speech rights). 11 Therefore, DOMA does not violate any speech rights under the First Amendment. 12 VIII. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 41 (...continued) as a social matter, their views about the constitutionality of not permitting same-sex marriage, or their views on some other subject. See Villegas, 363 F. Supp. 2d at 1217-18 (rejecting "expressive conduct" claim where plaintiff's message was "unclear").
12

DOMA Cannot Be Said to Infringe Upon any "Right" under the Ninth Amendment Finally, plaintiffs contend that DOMA violates what they call "the Ninth Amendment Right

of Reservation of all Rights not Enumerated to the People." See Complaint 17. The Court of Appeals has repeatedly held, however, that the Ninth Amendment is not an independent source of rights; this provision of the Constitution "has not been interpreted as independently securing any constitutional rights for purposes of making out a constitutional violation." Schowengerdt v. United States, 944 F.2d 483, 490 (9th Cir. 1991). "It is a common error, but an error nonetheless, to talk of 'ninth amendment rights.' The ninth amendment is not a source of rights as such; it is simply a rule about how to read the Constitution." San Diego County Gun Rights Comm. v. Reno, 98 F.3d 1121, 1125 (9th Cir. 1996) (quoting Laurence H. Tribe, American Constitutional Law 776 n.14 (2d ed. 1988)) (emphasis in original); accord Jenkins v. Commissioner, 483 F.3d 90, 92 (2d Cir. 2007) ("The Ninth Amendment

Case 8:09-cv-00286-DOC-MLG Document 2585-1 Filed 11/06/12 Pageof 54 55 Page ID Case 8:12-cv-01137-CBM-AJW Document Filed 06/11/09 Page 52 53 of Page ID #:151 #:1983

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

is not an independent source of individual rights; rather, it provides a 'rule of construction' . . . ."); Froehlich v. Wisconsin Dep't of Corrections, 196 F.3d 800, 801 (7th Cir. 1999) ("The Ninth Amendment is a rule of interpretation rather than a source of rights. Its purpose is to make clear that the enumeration of specific rights in the Bill of Rights is not intended . . . to deny the existence of unenumerated rights.") (citations omitted).13 Thus, even more to the point in relation to this case, the Court of Appeals has specifically held that "the ninth amendment has never been recognized as independently securing any constitutional right, for purposes of pursuing a civil rights claim." Strandberg v. City of Helena, 791 F.2d 744, 748 (9th Cir. 1986). Accordingly, plaintiffs cannot assert a personal "right" under the Ninth Amendment. CONCLUSION For the foregoing reasons, the United States' motion to dismiss should be granted, and all of plaintiffs' claims against the United States should be dismissed with prejudice. Dated: June 11, 2009 Respectfully submitted, TONY WEST Assistant Attorney General JAMES J. GILLIGAN Assistant Director /s/ W. Scott Simpson ____________________________ W. SCOTT SIMPSON Senior Trial Counsel

Attorneys, Department of Justice Federal Programs Branch

But cf. United States v. Choate, 576 F.2d 165, 181 (9th Cir. 1978) ("Rights under the Ninth Amendment are only those 'so basic and fundamental and so deep-rooted in our society' to be truly 'essential rights,' and which nevertheless, cannot find direct support elsewhere in the Constitution.") (quoting Griswold v. Connecticut, 381 U.S. 479, 488-489 (Goldberg, J., concurring)). Even if this statement in Choate were the law, it would not help the plaintiffs here, given that, as shown above, same-sex marriage has not been recognized as a "fundamental" right. 42

13

Case 8:09-cv-00286-DOC-MLG Document 2585-1 Filed 11/06/12 Pageof 54 55 Page ID Case 8:12-cv-01137-CBM-AJW Document Filed 06/11/09 Page 53 54 of Page ID #:152 #:1984

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

Civil Division, Room 7210 Post Office Box 883 Washington, D.C. 20044 Telephone: (202) 514-3495 Fax: (202) 616-8470 E-mail: [email protected] COUNSEL FOR DEFENDANT UNITED STATES OF AMERICA

43

Case 8:09-cv-00286-DOC-MLG Document 2585-1 Filed 11/06/12 Pageof 54 55 Page ID Case 8:12-cv-01137-CBM-AJW Document Filed 06/11/09 Page 54 55 of Page ID #:153 #:1985

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 Sam Kim Sam Kim and Associates PC 5661 Beach Blvd Buena Park, CA 90621 Michael L Parker [email protected] [email protected]

CERTIFICATE OF SERVICE I hereby certify that on June 11, 2009, I electronically filed the foregoing document with the Clerk of the Court using the CM/ECF system, which will send a Notice of Electronic Filing to each of the following: James A Campbell [email protected] Andrew P Pugno [email protected] Brian W Raum [email protected] [email protected] [email protected]

I also certify that I have mailed the foregoing document to the following non-CM/ECF participant(s), on the date specified above: Richard C Gilbert Gilbert & Marlowe 950 West 17th Street Suite D & E Santa Ana, CA 92706-3573 Mark R Beckington CAAG - Office of the Attorney General 300 South Spring Street, Suite 1702 Los Angeles, CA 90013

/s/ W. Scott Simpson _______________________________ W. SCOTT SIMPSON

44

Case 8:12-cv-01137-CBM-AJW Document 85-2 #:1986

Filed 11/06/12 Page 1 of 50 Page ID

Exhibit B

Case 8:04-cv-01680-JSM-TBM Document 39 Filed 09/30/04 Page 1 of of 50 Page ID 8:12-cv-01137-CBM-AJW Document 85-2 Filed 11/06/12 Page 2 49 PageID 248 #:1987 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION REV. NANCY WILSON and DR. PAULA SCHOENWETHER, Plaintiffs, v. RICHARD L. AKE, in his official capacity as Clerk of the Circuit and County Courts, Hillsborough County, Florida, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) )

Case No. 8:04-cv-1680-T-30TBM

MEMORANDUM IN SUPPORT OF FEDERAL DEFENDANT'S MOTION TO DISMISS PETER D. KEISLER Assistant Attorney General PAUL IGNATIUS PEREZ United States Attorney THOMAS R. LEE Deputy Assistant Attorney General THEODORE C. HIRT Assistant Director W. SCOTT SIMPSON Senior Trial Counsel Attorneys, Department of Justice Civil Division, Room 7210 Post Office Box 883 Washington, D.C. 20044 Telephone: (202) 514-3495 Facsimile: (202) 616-8470 E-mail: [email protected] COUNSEL FOR FEDERAL DEFENDANT

Case 8:04-cv-01680-JSM-TBM Document 39 Filed 09/30/04 Page 2 of of 50 Page ID 8:12-cv-01137-CBM-AJW Document 85-2 Filed 11/06/12 Page 3 49 PageID 249 #:1988

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

I.

The Federal Defense of Marriage Act Is Consistent with the Due Process Clause and Equal Protection Clause . . . . . . . . . . . . . . . . . . . . . . . . . 4 A. B. C. DOMA Does Not Impinge Upon Any Fundamental Right . . . . . . . . . . . . 8 DOMA Does Not Make Any Suspect Classification . . . . . . . . . . . . . . . . 13 DOMA Easily Satisfies Rational Basis Review . . . . . . . . . . . . . . . . . . . 14

II.

The Federal Defense of Marriage Act Is a Valid Exercise of Congress's Power under the Full Faith and Credit Clause . . . . . . . . . . . . . . . . . . 18 A. Section 2 is Consistent With Common Law Conflicts Principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 DOMA Was Enacted Under Congress's Authority to Prescribe the "Effect" of One State's Acts in the Other States . . . . . . . . . . . . . . . . . 21

B.

III.

The Federal Defense of Marriage Act Cannot Be Said to Violate the Asserted Constitutional "Right to Travel" . . . . . . . . . . . . . . . . . . 24

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Case 8:04-cv-01680-JSM-TBM Document 39 Filed 09/30/04 Page 3 of of 50 Page ID 8:12-cv-01137-CBM-AJW Document 85-2 Filed 11/06/12 Page 4 49 PageID 250 #:1989

INTRODUCTION In 1996, Congress enacted the Defense of Marriage Act ("DOMA") by an overwhelming margin, and President Clinton signed it into law. Section 2 of DOMA provides that no State shall be required to give effect to any marriage between persons of the same sex performed under the laws of another State. Section 3 states that the terms "marriage" and "spouse," for purposes of federal statutes and regulations, refer to the legal union of a man and a woman. The plaintiffs in this action, a same-sex couple, allege that DOMA violates the Due Process Clause, the Equal Protection Clause, the Full Faith and Credit Clause, and the Privileges and Immunities Clause of the Constitution. Plaintiffs' claims fail pursuant to clear and wellestablished precedent. Under binding Supreme Court and Eleventh Circuit precedent, State laws limiting marriage to a man and a woman comport with both the Due Process Clause and the Equal Protection Clause. Thus, Congress surely can incorporate that definition into federal statutes, and can protect the ability of the States to use that definition notwithstanding any contrary standards adopted in other States. Moreover, plaintiffs' claims would fail even in the absence of binding precedent, in that DOMA does not impinge on any fundamental right, does not make any suspect classification, and is rationally related to several legitimate governmental interests. DOMA is likewise a valid exercise of Congress's power, under the Full Faith and Credit Clause, to prescribe the effect of one State's acts in the other States. Indeed, in recognizing the power of the States to preserve their own conception of a valid marriage relationship in the face of another State's opposing position, Congress was merely confirming longstanding conflict of laws principles in the valid exercise of its express power to prescribe "the Effect" of a sister

Case 8:04-cv-01680-JSM-TBM Document 39 Filed 09/30/04 Page 4 of of 50 Page ID 8:12-cv-01137-CBM-AJW Document 85-2 Filed 11/06/12 Page 5 49 PageID 251 #:1990

State's laws. See U.S. Const. art. IV, 1, cl. 2. Finally, the Privileges and Immunities Clause cannot apply to DOMA, in that this Clause does not affect the powers of the federal government. Dismissal of plaintiffs' case will properly continue an unbroken line of judicial authority. The courts have spoken with a single, authoritative voice in every case in which they have considered challenges to the traditional definition of marriage under the United States Constitution; in every case to address that question in the wake of the Supreme Court's decision in Lawrence v. Texas, 123 S. Ct. 2472 (2003); in a recent Eleventh Circuit decision addressing the impact of Lawrence, see Lofton v. Secretary of Dep't of Children & Family Servs., 358 F.3d 804 (11th Cir. 2004); and in the one decision that has directly addressed the constitutionality of DOMA. In re Kandu, 2004 WL 1854112 (Bankr. W. D. Wash. Aug. 17, 2004). In each of these cases, the courts have uniformly rejected claims like those asserted in this case, and the result here should be the same. Congress plainly acted within its authority in codifying the traditional, longstanding definition of marriage and in recognizing the States' unquestioned authority to adhere to their own standards for the licensing of the marriage relationship. BACKGROUND In 1996, Congress overwhelmingly enacted, and President Clinton signed into law, the Defense of Marriage Act ("DOMA"), Pub. L. No. 104-199, 110 Stat. 2419 (1996). Section 2 of DOMA provides that no State "shall be required to give effect to any public act, record, or judicial proceeding of any other State . . . respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State." 28 U.S.C. 1738C. Section 3 of DOMA defines the terms "marriage" and "spouse," for purposes of federal law, to include only the union of one man and one woman. Specifically, it provides that:

Case 8:04-cv-01680-JSM-TBM Document 39 Filed 09/30/04 Page 5 of of 50 Page ID 8:12-cv-01137-CBM-AJW Document 85-2 Filed 11/06/12 Page 6 49 PageID 252 #:1991

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 wife. 1 U.S.C. 7. The House Judiciary Committee issued a report explaining the background and purposes of DOMA. As the Committee explained, DOMA was a direct response to Baehr v. Lewin, 852 P.2d 44 (Haw. 1993), in which a plurality of the Hawaii Supreme Court concluded that the definition of marriage under Hawaii law (as the union of one man and one woman) might warrant heightened scrutiny under the State constitution. H.R. Rep. No. 104-664, at 2, reprinted in 1996 U.S.C.C.A.N. 2905, 2906. In response, Congress sought both to "preserve[] each State's ability to decide" what should constitute a marriage under its own laws and to "lay[] down clear rules" regarding what constitutes a marriage for purposes of federal law. Id. In enacting section 2 of DOMA, Congress relied on its "express grant of authority," under the second sentence of the Constitution's Full Faith and Credit Clause, "to prescribe the effect that public acts, records, and proceedings from one State shall have in sister States." Id. at 25, reprinted in 1996 U.S.C.C.A.N. at 2930. That sentence, said the Committee, empowers Congress to "resolv[e] conflicts" between the enactments of the different States, id., and section 2 of DOMA does so by preserving the power of the States to decline to give effect to the laws of other States respecting same-sex marriage.1

Thus, DOMA does not, as plaintiffs allege, "require[e] any State not to give effect" to another State's same-sex marriage. See Complaint 15 (emphasis in original). DOMA is not a "marriage ban." Contra id. 19. 3

Case 8:04-cv-01680-JSM-TBM Document 39 Filed 09/30/04 Page 6 of of 50 Page ID 8:12-cv-01137-CBM-AJW Document 85-2 Filed 11/06/12 Page 7 49 PageID 253 #:1992

Section 3 of DOMA merely codifies, for purposes of federal law, the definition of marriage set forth in "the standard law dictionary." Id. at 29, reprinted in 1996 U.S.C.C.A.N. at 2935 (citing Black's Law Dictionary 972 (6th ed. 1990)). In explaining why Congress chose to limit federal marital benefits to opposite-sex couples, the House Judiciary Committee stressed the link between traditional opposite-sex marriage and procreation. According to the Committee, society "recognizes the institution of marriage" in order to encourage "responsible procreation and child-rearing." Id. at 12-13, reprinted in 1996 U.S.C.C.A.N. at 2916-17. Congress thus agreed with the Supreme Court that "'no legislation can be supposed more wholesome and necessary . . . than that which seeks to establish [government] on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman.'" Id. at 12, reprinted in 1996 U.S.C.C.A.N. at 2916 (quoting Murphy v. Ramsey, 114 U.S. 15, 45 (1885)). The Committee elaborated: "Why is marriage our most universal social institution, found prominently in virtually every known society? Much of the answer lies in the irreplaceable role that marriage plays in childrearing and in generational continuity." Id. at 13-14, reprinted in 1996 U.S.C.C.A.N. at 2917-18. ARGUMENT I. The Federal Defense of Marriage Act Is Consistent with the Due Process Clause and Equal Protection Clause The federal Defense of Marriage Act merely codifies, for purposes of federal legislation, the longstanding, traditional, and nearly-universal definition of marriage as the union of a man and a woman, and protects each State's ability to retain that definition as its policy if the State so chooses. As far as the federal defendant is aware, every court to address the question including the Supreme Court and the Eleventh Circuit has rejected federal constitutional

Case 8:04-cv-01680-JSM-TBM Document 39 Filed 09/30/04 Page 7 of of 50 Page ID 8:12-cv-01137-CBM-AJW Document 85-2 Filed 11/06/12 Page 8 49 PageID 254 #:1993

challenges to that definition of marriage. See, e.g., Lofton v. Secretary of Dep't of Children & Family Servs., 358 F.3d 804, 811-27 (11th Cir. 2004); Adams v. Howerton, 673 F.2d 1036, 1041-43 (9th Cir. 1982); McConnell v. Nooner, 547 F.2d 54, 55-56 (8th Cir. 1976) (per curiam); Dean v. District of Columbia, 653 A.2d 307, 331-33, 362-64 (D.C. 1995); Baehr v. Lewin, 852 P.2d 44, 55-57 (Haw. 1993); Singer v. Hara, 522 P.2d 1187, 1195-97 (Wash. Ct. App. 1974); Jones v. Hallahan, 501 S.W.2d 588, 589-90 (Ky. 1973); Baker v. Nelson, 191 N.W.2d 185, 18687 (Minn. 1971), appeal dismissed, 409 U.S. 810 (1972). Indeed, the only court that has specifically addressed the constitutionality of DOMA expressly upheld it against all constitutional challenges. In re Kandu, 2004 WL 1854112 (Bankr. W. D.Wash. Aug. 17, 2004). This Court should do likewise. Plaintiffs' due process and equal protection claims are controlled by Baker v. Nelson, a decision of controlling precedential effect by virtue of the Supreme Court's dismissal of an appeal in the case. In Baker, the Minnesota Supreme Court rejected the contention that a State statute limiting marriage to one man and one woman violated federal due process or equal protection principles. The court specifically held that there is no "fundamental right" to same-sex marriage, 191 N.W.2d at 186-87, that the traditional definition of marriage effects no "invidious discrimination," and that the definition easily survives rational basis review. Id. at 187. Invoking the United States Supreme Court's then-mandatory appellate jurisdiction, see 28 U.S.C. 1257(2) (repealed 1988), a same-sex couple sought review of those rulings. See Jurisdictional Statement, Baker v. Nelson, No. 71-1027, at 3 (Exhibit A hereto) (questions presented are whether denial of same-sex marriage "deprives appellants of their liberty to marry . . . without due process of law under the Fourteenth Amendment" and "violates their rights under the equal

Case 8:04-cv-01680-JSM-TBM Document 39 Filed 09/30/04 Page 8 of of 50 Page ID 8:12-cv-01137-CBM-AJW Document 85-2 Filed 11/06/12 Page 9 49 PageID 255 #:1994

protection clause of the Fourteenth Amendment"). Upon review, the Supreme Court dismissed the appeal "for want of a substantial federal question." 409 U.S. 810 (1972). Baker is binding and dispositive here. As the Supreme Court has explained, a dismissal for want of a substantial federal question is a decision on the merits. Hicks v. Miranda, 422 U.S. 332, 343-44 (1975). Referring to an earlier appeal that had been dismissed for lack of a substantial federal question, the Court said in Hicks: That case was an appeal from a decision by a state court upholding a state statute against federal constitutional attack. A federal constitutional issue was properly presented, it was within our [mandatory] appellate jurisdiction . . . and we had no discretion to refuse adjudication of the case on its merits . . . . We are not obligated to grant the case plenary consideration, and we did not; but we were required to deal with its merits. We did so by concluding that the appeal should be dismissed because the constitutional challenge to the California statute was not a substantial one. Id. (emphasis added). As the Eighth Circuit has observed, therefore, the Supreme Court's dismissal in Baker is "binding on the lower federal courts." McConnell, 547 F.2d at 56; accord Adams, 673 F.2d at 1039 n.2 (acknowledging that Supreme Court's dismissal in Baker "operate[d] as a decision on the merits"). Moreover, "dismissals for want of a substantial federal question without doubt reject the specific challenges presented in the statement of jurisdiction." Mandel v. Bradley, 432 U.S. 173, 176 (1977). Accordingly, Baker definitively establishes that neither the Due Process Clause nor the Equal Protection Clause bars the States from limiting marriage to one man and one woman. Necessarily, therefore, Baker also definitively establishes that the federal government may incorporate the traditional opposite-sex definition of marriage for purposes of federal statutes, and may protect the States' ability to continue using that definition. This precedent is binding on the federal courts. See Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989) ("If a precedent of this Court has

Case 8:12-cv-01137-CBM-AJW Document 85-2 Filed 09/30/04 Page 9 1049 50 Page ID Case 8:04-cv-01680-JSM-TBM 39 Filed 11/06/12 Page of of PageID 256 #:1995

direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions."); see also Agostini v. Felton, 521 U.S. 203, 207 (1997) ("The Court neither acknowledges nor holds that other courts should ever conclude that its more recent cases have, by implication, overruled an earlier precedent."). Nothing in Romer v. Evans, 517 U.S. 620 (1996), overrules or otherwise undermines Baker either explicitly or by implication. In Romer, the Supreme Court applied rational basis review to invalidate an "unprecedented" State constitutional amendment that barred homosexuals from seeking any protection under State or local anti-discrimination statutes or ordinances. Id. at 633; see In re Kandu, 2004 WL 1854112, at *17 (Bankr. W. D.Wash. Aug. 17, 2004) (distinguishing DOMA and the amendment in Romer on the basis that "DOMA is not . . . exceptional and unduly broad"); accord Standhardt v. Superior Court, 77 P.3d 451, 464-65 (Ariz. Ct. App. 2003). Romer is plainly inapposite here: codifying the traditional definition of marriage is by no means "unprecedented," see In re Kandu, 2004 WL 1854112, at *17 ("DOMA simply codified that definition of marriage historically understood by society"); Romer's rational basis holding provides no support for application of heightened scrutiny here or elsewhere; and because DOMA, like the Minnesota statute upheld in Baker and unlike the Colorado amendment struck down in Romer, is rationally related to the legitimate government interest in "procreation and [the] rearing of children," Baker, 191 N.W.2d at 186, it cannot fairly be described as "born of animosity toward the class of persons affected." Romer, 517 U.S. at 634. Nor does Lawrence v. Texas, 123 S. Ct. 2472 (2003), overrule or otherwise undermine Baker. In Lawrence, the Supreme Court held that the government cannot criminalize private, consensual, adult homosexual sodomy. At the same time, however, the Court unequivocally 7

Case 8:04-cv-01680-JSM-TBM Document 39 Filed 09/30/04 Page 1011 of 50 Page ID 8:12-cv-01137-CBM-AJW Document 85-2 Filed 11/06/12 Page of 49 PageID 257 #:1996

noted that the case before it did "not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter." Id. at 2484. The Eleventh Circuit has concurred in this view of Lawrence in Lofton v. Secretary of Department of Children & Family Services, 358 F.3d 804, 818 (11th Cir. 2004). In holding that a State may constitutionally prohibit practicing homosexuals from adopting children, the court observed that Lawrence simply does not address "the affirmative right to receive official and public recognition" for a relationship. Id. at 817. Because Lawrence declined to address any question regarding marriage, Baker remains binding and dispositive precedent. Even without the binding precedent of Baker, plaintiffs' due process and equal protection claims still would fail as a matter of law. Most such claims are subject to "rational basis" review, under which the challenged statute will be upheld if it is "rationally related to furthering a legitimate governmental interest." Henderson v. Scientific-Atlanta, Inc., 971 F.2d 1567, 1574 (11th Cir. 1992) (equal protection); accord Eady v. Siegelman, 239 F.3d 1222, 1223-24 (11th Cir. 2001) (per curiam) (due process). Only if the statute is found to "burden[] a fundamental right or target[] a suspect class" will it be subjected to a higher standard of review. Lofton, 358 F.3d at 818; see Schwarz v. Kogan, 132 F.3d 1387, 1390 (11th Cir. 1998) ("Substantive due process challenges that do not implicate fundamental rights are reviewed under the highly deferential 'rational basis' standard."). Neither section 2 nor section 3 of the Defense of Marriage Act impinges upon any fundamental right or "targets a suspect class," and the Act easily satisfies the rational basis test. A. DOMA Does Not Impinge Upon Any Fundamental Right

A fundamental right is one that is "deeply rooted in this Nation's history and tradition" and "implicit in the concept of ordered liberty." Washington v. Glucksberg, 521 U.S. 702, 7208

Case 8:04-cv-01680-JSM-TBM Document 39 Filed 09/30/04 Page 1112 of 50 Page ID 8:12-cv-01137-CBM-AJW Document 85-2 Filed 11/06/12 Page of 49 PageID 258 #:1997

21 (1997) (quoting Moore v. City of East Cleveland, 431 U.S. 494, 503 (1977) (plurality), and Palko v. Connecticut, 302 U.S. 319, 325 (1937)); see Lofton, 358 F.3d at 816-17. The right to marry qualifies as "fundamental" under these standards. Zablocki v. Redhail, 434 U.S. 374, 38387 (1978). That right does not, however, encompass the right to marry someone of the same sex. The Supreme Court has advocated extreme caution in elevating purported liberty interests to the status of fundamental constitutional rights. As the Court explained in a case involving one State's ban on assisted suicide: 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. Glucksberg, 521 U.S. at 720 (citations omitted); see Williams v. Attorney Gen. of Ala., 378 F.3d 1232, 1250 (11th Cir. 2004) (observing that conferring constitutional status on an asserted right prevents future revision through democratic process). There is no history or tradition of same-sex marriage in this country or elsewhere. See In re Kandu, 2004 WL 1854112, at *10 ("there is no basis for this Court to unilaterally determine at this time that there is a fundamental right to marry someone of the same sex"); Standhardt, 77 P.3d at 455-60 (no fundamental right to same-sex marriage under Arizona or U.S. constitutions). The traditional understanding of marriage as the union of one man and one woman is deeply rooted in Western history. See Baker, 191 N.W.2d at 185-86; Black's Law Dictionary 762 (2d ed. 1910) (defining marriage as "the civil status of one man and one woman united in law for life"). Until recently, moreover, no State or foreign country had ever permitted same-sex marriages. See H.R. Rep. No. 104-664, at 3, reprinted in 1996 U.S.C.C.A.N. at 2907. To the

Case 8:04-cv-01680-JSM-TBM Document 39 Filed 09/30/04 Page 1213 of 50 Page ID 8:12-cv-01137-CBM-AJW Document 85-2 Filed 11/06/12 Page of 49 PageID 259 #:1998

contrary, virtually every State understands "marriage" in accordance with the historical practice, and courts repeatedly have upheld prohibitions against same-sex marriage despite due process attacks. See, e.g., Dean, 653 A.2d at 331-33; Baker, 191 N.W.2d at 186-87. Occasional contrary decisions, resting exclusively on State constitutional law, have been promptly overruled by constitutional amendment. See Haw. Const. art. 1, 23 (ratified Nov. 3, 1998) ("The legislature shall have the power to reserve marriage to opposite-sex couples."); Alaska Const. art. 1, 25 (effective Jan. 3, 1999) ("To be valid or recognized in this State, a marriage may exist only between one man and one woman."); see also Neb. Const. art. I, 29 (adopted 2000); Nev. Const. art. 1, 21 (ratified 2002); Mo. Const. art. 1, 33 (adopted 2004); La. Const. art. XII, 15 (approved Sept. 18, 2004) (see Exhibits B and C hereto).2 Currently, same-sex marriage is permitted only in Massachusetts, as a result of a judicial decision resting entirely on the State constitution. See Goodridge v. Department of Pub. Health, 798 N.E.2d 941, 948-49 (Mass. 2003) (noting that Massachusetts constitution is "more protective of individual liberty and equality than the Federal Constitution"); see also Andersen v. King County, 2004 WL 1738447 (Wash. Super. Ct. Aug. 4, 2004) (holding that prohibition against same-sex marriage violates Washington constitution, but declining to enter "specific remedy" and staying any remedial order pending appellate review); Castle v. State, 2004 WL 1985215 (Wash. Super. Ct. Sept. 7, 2004) (same holding, but no remedy ordered). Whatever the merit of that decision under State law, it

Inclusion of the exhibits to this memorandum does not convert federal defendant's motion to dismiss into a motion for summary judgment. See, e.g., Papasan v. Allain, 478 U.S. 265 (1986) (court may consider matters of public record in adjudicating motion to dismiss); Trustmark Ins. Co. v. ESLU, Inc., 153 F. Supp. 2d 1322, 1325 n.1 (M.D. Fla. 2001) (same); Harris v. Bush, 106 F. Supp. 2d 1272, 1275 (N.D. Fla. 2000) (same). 10

Case 8:04-cv-01680-JSM-TBM Document 39 Filed 09/30/04 Page 1314 of 50 Page ID 8:12-cv-01137-CBM-AJW Document 85-2 Filed 11/06/12 Page of 49 PageID 260 #:1999

cannot possibly be described as creating or reflecting a tradition "deeply rooted in this Nation's history and tradition." See Glucksberg, 521 U.S. at 721.3 Moreover, the United States Supreme Court has defined the right to marry consistent with traditional understandings. Thus, the Court has repeatedly linked marriage to related rights of procreation, see, e.g., Zablocki, 434 U.S. at 386 (fundamental right to "marry and raise the child in a traditional family setting"); Loving v. Virginia, 388 U.S. 1, 12 (1967) (marriage is "fundamental to our very existence and survival"); Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) ("Marriage and procreation are fundamental to the very existence and survival of the race."), and has repeatedly enforced traditional restrictions on marriage such as age limitations and prohibitions against polygamy. See, e.g., Maynard v. Hill, 125 U.S. 190, 205 (1888); Reynolds v. United States, 98 U.S. 145, 166-67 (1878); Gaines v. Relf, 53 U.S. (12 How.) 472, 504 (1851). As Justice Powell has explained, State regulation has permissibly "included bans on . . . homosexuality, as well as various preconditions to marriage." Zablocki, 434 U.S. at 399 (concurring opinion); see Vaughn v. Lawrenceburg Power Sys., 269 F.3d 703, 711 (6th Cir. 2001) ("marriage as it was recognized by the common law is constitutionally protected, but this protection has not been extended to forms of marriage outside the common-law tradition") (emphasis added). Absent any history or tradition of same-sex marriage, there is no basis for defining that arrangement to be a fundamental constitutional right. As the Supreme Court made clear in Glucksberg, substantive due process does not authorize the courts to "reverse centuries of legal

Similarly, no such longstanding tradition can be inferred from Baker v. State, 744 A.2d 864, 887 (Vt. 1999), which held that the Vermont constitution required the State "to extend to same-sex couples the common benefits and protections that flow from marriage," but not to permit marriage by same-sex couples. 11

Case 8:04-cv-01680-JSM-TBM Document 39 Filed 09/30/04 Page 1415 of 50 Page ID 8:12-cv-01137-CBM-AJW Document 85-2 Filed 11/06/12 Page of 49 PageID 261 #:2000

doctrine and practice, and strike down the considered policy choice of almost every State." 521 U.S. at 723.4 In any event, unlike the State marriage statutes discussed above, DOMA does not directly or substantially interfere with the ability of anyone, including homosexuals, to marry the individual of his or her choice. Instead, it simply preserves each State's ability to determine who may marry, based on its own public policy, and indicates how couples who have already married will be treated under federal statutes. The Supreme Court has made clear that regulations which "do not significantly interfere with decisions to enter into the marital relationship" may be upheld without heightened scrutiny. Zablocki, 434 U.S. at 386. Accordingly, statutes that allocate benefits and burdens based on marital status are routinely subjected only to rational basis review and upheld under that standard. See, e.g., Califano v. Jobst, 434 U.S. 47, 54 (1977) (loss of federal social security benefits upon marriage does not "interfere with the individual's freedom to make a decision as important as marriage"); Parks v. City of Warner Robins, Ga., 43 F.3d 609 (11th Cir. 1995) (city's anti-nepotism policy for supervisory employees does not "create a direct legal obstacle that would prevent absolutely a class of people from marrying," and thus does not "directly and substantially interfere with the right to marry"); P.O.P.S. v. Gardner, 998 F.2d 764,

The Supreme Court's decision in Lawrence is not to the contrary. Regardless of whether that decision is read as establishing a broad "fundamental right [to] sexual privacy," or only as holding that a State may not "impose a criminal prohibition on private consensual homosexual conduct," compare Lofton v. Secretary of Dep't of Children & Family Servs., 377 F.3d 1275, 1282-83 (denying petition for rehearing), with id. at 1305-06 (Barkett, J., dissenting from denial of rehearing), Lawrence undeniably addressed the government's response to certain private sexual conduct, and did not address whether the government must permit two people to marry or must recognize such a marriage. The Lawrence Court itself pointedly emphasized that the case before it did "not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter." 123 S. Ct. at 2484; Standhardt, 77 P.3d at 456-57 (holding that Lawrence does not compel recognition of fundamental right to same-sex marriage). 12

Case 8:04-cv-01680-JSM-TBM Document 39 Filed 09/30/04 Page 1516 of 50 Page ID 8:12-cv-01137-CBM-AJW Document 85-2 Filed 11/06/12 Page of 49 PageID 262 #:2001

768 (9th Cir. 1993) (same for child support obligations that imposed distinct "financial pressures" on married individuals); Druker v. Commissioner, 697 F.2d 46, 50 (2d Cir. 1982) (same for "marriage penalty" in federal tax code). Similarly, DOMA does not address the question whether the plaintiffs in this case may marry under the law of Florida or of any other State. B. DOMA Does Not Make Any Suspect Classification

DOMA cannot be subjected to heightened scrutiny on the theory that it draws any suspect classification. The Eleventh Circuit has squarely held that homosexuality is not a suspect class, observing that all of the other circuits "that have considered the question have declined to treat homosexuals as a suspect class." Lofton, 358 F.3d at 818 (citing cases from the Fourth, Fifth, Sixth, Seventh, Ninth, Tenth, District of Columbia, and Federal Circuits). That holding is binding here. DOMA also does not discriminate on the basis of sex. To begin with, DOMA on its face makes no "detrimental . . . classification[]" that disadvantages either men or women. Michael M. v. Superior Court, 450 U.S. 464, 478 (1981) (plurality). The effect of DOMA to the extent the statute has any direct effect on a person is the same on men and women. Moreover, DOMA cannot be "traced to a . . . purpose" to discriminate against either men or women. Personnel Adm'r v. Feeney, 442 U.S. 256, 272 (1979). Thus, as the Kandu court noted in holding that DOMA does not discriminate on the basis of sex, "Women, as members of one class, are not being treated differently from men, as members of a different class." In re Kandu, 2004 WL 1854112, at *13. Loving v. Virginia is not to the contrary. There the Supreme Court rejected a contention that the assertedly "equal application" of a statute prohibiting interracial marriage immunized the 13

Case 8:04-cv-01680-JSM-TBM Document 39 Filed 09/30/04 Page 1617 of 50 Page ID 8:12-cv-01137-CBM-AJW Document 85-2 Filed 11/06/12 Page of 49 PageID 263 #:2002

statute from strict scrutiny. 388 U.S. at 8. The Court had little difficulty concluding that the statute, which applied only to "interracial marriages involving white persons," was "designed to maintain White Supremacy" and therefore unconstitutional. Id. at 11. No comparable purpose is present here, however, for DOMA does not seek in any way to advance the "supremacy" of men over women, or of women over men. Accordingly, in upholding the traditional definition of marriage, numerous courts have expressly rejected an alleged analogy to Loving. See, e.g., Baker v. State, 744 A.2d at 880 n.13 (rejecting claim that "defining marriage as the union of one man and one woman discriminates on the basis of sex"); Singer, 522 P.2d at 1191-92; Baker v. Nelson, 191 N.W.2d at 187; see also Dean, 653 A.2d at 362-63 & n.2 (Steadman, A.J., concurring) ("It seems to me to stretch the concept of gender discrimination to assert that it applies to treatment of same-sex couples differently from opposite-sex couples."). C. DOMA Easily Satisfies Rational Basis Review

Because DOMA neither burdens fundamental rights nor makes any suspect classification, it is subject only to rational-basis review. See, e.g., Glucksberg, 521 U.S. at 728; Heller v. Doe, 509 U.S. 312, 319 (1993). The Eleventh Circuit has set forth a two-step process for rational basis review: The first step in determining whether legislation survives rational-basis scrutiny is identifying a legitimate government purpose a goal which the enacting government body could have been pursuing. The actual motivations of the enacting governmental body are entirely irrelevant. Moreover, the Equal Protection Clause does not require government decisionmakers to articulate any reason for their actions, nor does it require any record evidence of a legitimate purpose. The second step of rational-basis scrutiny asks whether a rational basis exists for the enacting governmental body to believe that the legislation would further the hypothesized purpose. The proper inquiry is concerned with the existence of a conceivably rational basis, not whether that basis was actually considered by the legislative body. As long as reasons for the legislative classification may have been considered to be true, and the relationship between 14

Case 8:04-cv-01680-JSM-TBM Document 39 Filed 09/30/04 Page 1718 of 50 Page ID 8:12-cv-01137-CBM-AJW Document 85-2 Filed 11/06/12 Page of 49 PageID 264 #:2003

the classification and the goal is not so attenuated as to render the distinction arbitrary or irrational, the legislation survives rational-basis scrutiny. As with the legitimate purpose inquiry, courts are not confined to the record when determining whether a rational basis for the classification exists. In sum, those attacking the rationality of the legislative classification have the burden to negative every conceivable basis which might support it. Haves v. City of Miami, 52 F.3d 918, 921-22 (11th Cir. 1995) (emphasis in original) (citations and internal quotation marks omitted). Under rational basis review, furthermore, a statute "is accorded a strong presumption of validity." Jackson v. State Bd. of Pardons & Paroles, 331 F.3d 790, 797 (11th Cir. 2003). In short, this standard is "a paradigm of judicial restraint." FCC v. Beach Communications, Inc., 508 U.S. 307, 314 (1993); see Gary v. City of Warner Robins, Ga., 311 F.3d 1334, 1339 (11th Cir. 2002) (rational basis standard is "highly deferential"). DOMA is rationally related to at least two legitimate government interests.5 First, both section 2 and section 3 of DOMA are rationally related to the legitimate government interest in encouraging the development of relationships that are optimal for procreation. As the House Judiciary Committee explained, the benefits and obligations of marriage are rooted in "the inescapable fact that only two people, not three, only a man and a woman, can beget a child." H.R. Rep. No. 104-664, at 13, reprinted in 1996 U.S.C.C.A.N. at 2917. Congress could seek to encourage the creation of stable relationships in which people can securely procreate. To this end, marriage historically has provided an important legal and normative link between procreation and family responsibilities. See 1 William Blackstone, Commentaries on the Laws of England 443 (Univ. of Chicago Press 1979) ("The main end and design of marriage [is] to

Section 2 of DOMA also properly and reasonably advances the additional governmental interest of protecting the interests of each State in determining and implementing its own policy on same-sex marriage. For all of the reasons described in section III below, DOMA is a rational, constitutional exercise of Congress's express power under the Full Faith and Credit Clause, and the exercise of that power provides another rational basis for section 2. 15

Case 8:04-cv-01680-JSM-TBM Document 39 Filed 09/30/04 Page 1819 of 50 Page ID 8:12-cv-01137-CBM-AJW Document 85-2 Filed 11/06/12 Page of 49 PageID 265 #:2004

ascertain and fix upon some certain person, to whom the care, the protection, the maintenance, and the education of the children should belong . . . ."). Congress's interest in encouraging responsible procreation is manifestly legitimate. Indeed, the Ninth Circuit, applying rational basis review, has upheld Congress's use of the traditional definition of marriage for purposes of federal immigration statutes. The court reasoned that such a definition was rational "because homosexual marriages never produce offspring, because they are not recognized in most, if in any, of the states, or because they violate traditional and often prevailing societal mores." Adams, 673 F.2d at 1043 (emphasis added). In short, Congress has an interest in promoting heterosexual marriage because it has an interest in the stable generational continuity of the United States. DOMA furthers this interest by permitting the States, notwithstanding the Full Faith and Credit Clause, to deny recognition to same-sex marriages performed elsewhere, and by adopting the traditional definition of marriage for purposes of federal statutes. Second, again in relation to both section 2 and section 3 of DOMA, Congress may permissibly decide to encourage the creation of stable relationships that facilitate the rearing of children by both of their biological parents. The Eleventh Circuit explicitly accepted this rationale in upholding Florida's prohibition against adoption by a practicing homosexual: Florida argues that the statute is rationally related to Florida's interest in furthering the best interests of adopted children by placing them in families with married mothers and fathers. Such homes, Florida asserts, provide the stability that marriage affords and the presence of both male and female authority figures, which it considers critical to optimal childhood development and socialization. . . . Florida clearly has a legitimate interest in encouraging a stable and nurturing environment for the education and socialization of its adopted children. . . . More importantly for present purposes, the state has a legitimate interest in encouraging this optimal family structure by seeking to place adoptive children in homes that have both a mother and father.

16

Case 8:04-cv-01680-JSM-TBM Document 39 Filed 09/30/04 Page 1920 of 50 Page ID 8:12-cv-01137-CBM-AJW Document 85-2 Filed 11/06/12 Page of 49 PageID 266 #:2005

Lofton, 358 F.3d at 818-19. Just as the Florida statute promoted the placement of children in stable families with both a father and a mother, the federal Defense of Marriage Act encourages the creation of stable families in which children can be nurtured by a father and a mother, by ensuring that States can choose whether or not to give effect to same-sex marriages, and by incorporating the traditional definition of marriage into federal statutes. Congress could legitimately seek to strengthen that relationship so as to "unite men and women . . . through the prolonged period of dependency of a human child" and thus facilitate what Congress reasonably understood to be the "most durable and effective means of meeting children's needs over time." See H.R. Rep. No. 104-664, at 14 n.50 (citations omitted), reprinted in 1996 U.S.C.C.A.N. at 2918. Under rational-basis review, it is no valid objection to contend that some opposite-sex couples cannot or choose not to procreate (which makes DOMA arguably overinclusive in its allocation of federal marital benefits), or that many individuals besides biological parents can raise children quite effectively (which makes DOMA arguably underinclusive). See Standhardt, 77 P.3d at 462-63 (rejecting these contentions in upholding State statute limiting marriage to opposite-sex couples). As explained above, rational classifications cannot be struck down merely because they are to some degree over- or under-inclusive. See, e.g., Vance v. Bradley, 440 U.S. 93, 108 (1979); Lofton, 358 F.3d at 822-23. To the contrary, in framing any legislation, Congress "must necessarily engage in a process of line drawing," which "inevitably requires that some persons who have an almost equally strong claim to favored treatment be placed on different sides of the line." United States R.R. Retirement Bd. v. Fritz, 449 U.S. 166, 179 (1980) (citation omitted). In this case, it is beyond dispute that procreation requires one man and one woman; Congress reasonably concluded that children ideally should be raised by their biological 17

Case 8:04-cv-01680-JSM-TBM Document 39 Filed 09/30/04 Page 2021 of 50 Page ID 8:12-cv-01137-CBM-AJW Document 85-2 Filed 11/06/12 Page of 49 PageID 267 #:2006

parents, and DOMA is rationally related to Congress's plainly legitimate interests in encouraging the optimal social arrangements for procreation and childrearing. Under settled principles of rational-basis review, nothing more is required. See, e.g., Heller, 509 U.S. at 319-20; Beach Communications, 508 U.S. at 314-15. II. The Federal Defense of Marriage Act Is a Valid Exercise of Congress's Power under the Full Faith and Credit Clause Plaintiffs' challenge to section 2 of DOMA under the Full Faith and Credit Clause also fails as a matter of law. In plaintiffs' view, Congress's preservation of one State's prerogative to decline to give "effect" to another State's laws respecting same-sex marriage runs afoul of the Full Faith and Credit Clause, which plaintiffs quote for the proposition that "Full Faith and Credit shall be given in each State to the public Acts, Records, and Judicial Proceedings of every other State." See Complaint 23. In fact, however, section 2 of DOMA is fully consistent with the Full Faith and Credit Clause for two important reasons. First, section 2 is entirely consistent with the quoted language in the first sentence of the Full Faith and Credit Clause. The notion of according "Full Faith and Credit" has never been construed to require one State to give absolute deference to another State's laws in all circumstances. Rather, this provision has long been understood to leave room for the application of traditional principles of conflict of laws, including the concept that each State retains the authority to decline to apply another State's law when it conflicts with its own legitimate public policies. Section 2 of DOMA easily fits within this principle, which has long been applied to recognize the power of each State to apply its own licensing standards including specifically for marriage licenses when they conflict with those of another State. Indeed, the unquestioned authority of the States in this area is clearest in a case like this one, where the issue is simply

18

Case 8:04-cv-01680-JSM-TBM Document 39 Filed 09/30/04 Page 2122 of 50 Page ID 8:12-cv-01137-CBM-AJW Document 85-2 Filed 11/06/12 Page of 49 PageID 268 #:2007

whether Florida has the power to apply its own law to its own citizens with respect to matters within its own borders. Second, in any event, plaintiffs completely ignore the second sentence of the Full Faith and Clause, which expressly empowers Congress to prescribe "the Effect" of one State's laws in another State and clearly condones the exercise of that power in DOMA. Under any conceivable construction of this "effects" provision, Congress clearly has the power to recognize the authority of each State to give primacy to its own standards for marriage licensing and to decline to give effect to the conflicting standards of another. A. Section 2 is Consistent With Common Law Conflicts Principles

The principle of "Full Faith and Credit" has never been construed to require the States literally to give effect, in all circumstances, to the statutes or judgments of other States. Indeed, "[a] rigid and literal enforcement of the full faith and credit clause, without regard to the statute of the forum, would lead to the absurd result that, wherever the conflict arises, the statute of each state must be enforced in the courts of the other, but cannot be in its own." Alaska Packers Ass'n v. Industrial Accident Comm'n, 294 U.S. 532, 547 (1935). Consistent with this principle, the Supreme Court has indicated that the Framers of the Constitution had an "expectation" that the Full Faith and Credit Clause "would be interpreted against the background of principles developed in international conflicts law." Sun Oil Co. v. Wortman, 486 U.S. 717, 723 & n.1 (1988). And, as the Court repeatedly has acknowledged, longstanding principles of conflicts of law do "not require a State to apply another State's law in violation of its own legitimate public policy." See, e.g., Nevada v. Hall, 440 U.S. 410, 422 (1979); see also Williams v. North Carolina, 317 U.S. 317 U.S. 287, 296 (1942) ("Nor is there any authority which lends support to the view that the full faith and credit clause compels the courts of one state to subordinate the local policy of that state, as respects its domiciliaries, to the 19

Case 8:04-cv-01680-JSM-TBM Document 39 Filed 09/30/04 Page 2223 of 50 Page ID 8:12-cv-01137-CBM-AJW Document 85-2 Filed 11/06/12 Page of 49 PageID 269 #:2008

statutes of any other state."). Under this longstanding public policy doctrine, out-of-state statutes or acts that are obnoxious to the forum State's policy need not be followed under the Full Faith and Credit Clause. See, e.g., Pacific Employers Ins. Co. v. Industrial Accident Comm'n, 306 U.S. 493, 501 (1939) (holding that California courts need not apply Massachusetts law of workers compensation to Massachusetts employee of Massachusetts employer, where that law was contrary to California's "policy to provide compensation for employees injured in their employment within the state"); see also Hilton v. Guyot, 159 U.S. 113, 167 (1895) ("A judgment affecting the status of persons, such as a decree confirming or dissolving a marriage, is recognized as valid in every country, unless contrary to the policy of its own law."); Bank of Augusta v. Earle, 38 U.S. (13 Pet.) 519, 589 (1839) (noting the longstanding principle of conflicts that the laws of one country "will, by the comity of nations, be recognised and executed in another . . . provided that law was not repugnant to the laws or policy of their own country") (emphasis added). The courts have followed this principle, moreover, in relation to the validity of marriages performed in other States. Both the First and Second Restatements of Conflict of Laws recognize that State courts may refuse to give effect to a marriage, or to certain incidents of a marriage, which is "sufficiently offensive" to the forum State's policy. See Restatement (First) of Conflict of Laws 134; Restatement (Second) of Conflict of Laws 284.6 And the courts have widely held that certain marriages performed elsewhere need not be given effect, because they

Among the "incidents" of marriage mentioned in the Restatement (Second) of Conflict of Laws are "that the spouses may lawfully cohabit as man and wife . . . the marital property interests which each spouse may have in the other's assets . . . the forced share or intestate share which the surviving spouse has in the estate of the deceased spouse [and] that a party to the marriage is the 'spouse' of the other . . . within the meaning of these terms when used in a will, trust or other instrument." See Restatement (Second) of Conflict of Laws 284 cmt. a. 20

Case 8:04-cv-01680-JSM-TBM Document 39 Filed 09/30/04 Page 2324 of 50 Page ID 8:12-cv-01137-CBM-AJW Document 85-2 Filed 11/06/12 Page of 49 PageID 270 #:2009

violated the public policy of the forum. See, e.g., Catalano v. Catalano, 170 A.2d 726, 728-29 (Conn. 1961) (marriage of uncle to niece, "though valid in Italy under its laws, was not valid in Connecticut because it contravened the public policy of th[at] state"); Wilkins v. Zelichowski, 140 A.2d 65, 67-68 (N.J. 1958) (marriage of 16-year-old female held invalid in New Jersey, regardless of validity in Indiana where performed, in light of N.J. policy reflected in statute permitting adult female to secure annulment of her underage marriage); In re Mortenson's Estate, 316 P.2d 1106 (1957) (marriage of first cousins held invalid in Arizona, though lawfully performed in New Mexico, given Arizona policy reflected in statute declaring such marriages "prohibited and void"). Accordingly, section 2 of DOMA follows long-established principles in relation to the recognition of marriages performed in other States, and ensures that States may continue to rely on their own public policies to reject requests to recognize same-sex marriages. The fact that States have long had the authority to decline to give effect to marriages performed in other States based on the forum State's public policy strongly supports the constitutionality of Congress's exercise of its authority in DOMA. Surely the Full Faith and Credit Clause cannot be read to preclude a State from applying these established principles to its own definition of marriage involving its own citizens within its own borders. That Clause clearly does not mandate any interference with "long established and still subsisting choice-of-law practices." Sun Oil Co., 486 U.S. at 728-29. B. DOMA Was Enacted Under Congress's Authority to Prescribe the "Effect" of One State's Acts in the Other States

The constitutionality of section 2 of DOMA is further confirmed by the second sentence of the Full Faith and Credit Clause, which expressly empowers Congress to prescribe "the Effect"

21

Case 8:04-cv-01680-JSM-TBM Document 39 Filed 09/30/04 Page 2425 of 50 Page ID 8:12-cv-01137-CBM-AJW Document 85-2 Filed 11/06/12 Page of 49 PageID 271 #:2010

to be accorded to the laws of a sister State. See U.S. Const. art. IV, 1, cl. 2. Although the broad contours of this provision have not been conclusively established, the power exercised by Congress in enacting DOMA clearly conforms to any conceivable construction of the effects provision. First, there is ample support in both history and case law for according plenary power to Congress under the effects provision. When the Framers considered the Full Faith and Credit Clause, they explained that it was designed to make up for the inadequacies of a predecessor provision in the Articles of Confederation a provision that called for according full faith and credit to a sister State's laws, but that recognized no legislative power to prescribe the "effect" of such laws. In the Framers' view, the provision in the Articles of Confederation was "deficien[t]," because it did not "declare what was to be the effect of a judgment obtained in one state in another state." McElmoyle ex rel. Bailey v. Cohen, 38 U.S. (13 Pet.) 312, 325-26 (1839) (Mem) (emphasis added). In the absence of any provision as to such "effect," the Framers viewed the meaning of "full faith and credit" as "extremely indeterminate," and "of little importance."7 As the Supreme Court explained in McElmoyle, this historical record accords limited significance to the first sentence of the Full Faith and Credit Clause, and plenary power to Congress to prescribe the substantive effects of a sister State's laws. Specifically, the first sentence merely provides that the judgments of one State "are only evidence in a sister state that the subject matter of the suit has become a debt of record." McElmoyle, id. at 325 (emphasis added). It "does not declare what was to be the effect of a judgment obtained in one state in

See The Federalist No. 42, at 271 (James Madison) (Clinton Rossiter ed., 1961) ("The meaning of the [the full faith and credit clause in the Articles] is extremely indeterminate, and can be of little importance under any interpretation which it will bear."). 22

Case 8:04-cv-01680-JSM-TBM Document 39 Filed 09/30/04 Page 2526 of 50 Page ID 8:12-cv-01137-CBM-AJW Document 85-2 Filed 11/06/12 Page of 49 PageID 272 #:2011

another state," id. (emphasis added); the prescription of any substantive effect of a sister State's laws is left to Congress under the second sentence the effects provision. This same construction was embraced by the Court in Mills v. Duryee, 11 U.S. (7 Cranch) 481 (1813). At issue in Mills was the Full Faith and Credit statute of 1790, now codified in substantially similar terms at 28 U.S.C. 1738, which provided that one State's judgment would have the same effect in other States as it would have in the rendering State. In rejecting a reading of the statute that would treat "judgments of the state Courts . . . as prima facie evidence only," the Court noted that "the constitution contemplated a power in congress to give a conclusive effect to such judgments." Id. at 485 (emphasis added). As in McElmoyle, then, the Mills decision reads the effects provision not the first sentence of the Full Faith and Credit Clause as conferring on Congress the broad power "to give a conclusive effect" to the laws of another State. Under this view, Congress obviously acted within its plenary effects power in enacting section 2 of DOMA. If the Constitution itself does not declare "the effect" of the law of "one state in another state," McElmoyle, 38 U.S. (13 Pet.) at 325, but instead leaves that "power in congress," Mills, 11 U.S. (7 Cranch) at 485, then Congress clearly had the authority in DOMA to declare that no State is "required to give effect" to the same-sex marriage laws of other States. 28 U.S.C. 1738C. Moreover, the Court need not embrace this plenary reading of Congress's effects power in order to sustain section 2 of DOMA. Whatever the breadth of Congress's power under the Full Faith and Credit Clause, it clearly encompasses the authority to confirm the applicability of one of the longstanding, generally applicable principles of conflicts law that formed the background of the Clause. See Sun Oil Co., 486 U.S. at 723 & n.1. As explained in detail above, one such 23

Case 8:04-cv-01680-JSM-TBM Document 39 Filed 09/30/04 Page 2627 of 50 Page ID 8:12-cv-01137-CBM-AJW Document 85-2 Filed 11/06/12 Page of 49 PageID 273 #:2012

principle was the public policy doctrine, which has long recognized the sovereign authority of the States to decline to give effect to the laws of a sister State that offend their legitimate public policy. Section 2 of DOMA merely confirms the specific applicability of that longstanding principle in the context of laws regarding same-sex marriage. This exercise of Congress's effects power easily fits within any conceivable construction of this provision. As the Supreme Court recognized in Sun Oil Co., the conflicts law that formed the "background" of the Full Faith and Credit Clause was common law, subject to further "development." Id. In authorizing Congress to declare the "effect" of one State's laws in another State, the Constitution empowers Congress, at the very least, to codify the applicability of a longstanding common law principle in a context where State public policies are poised to clash. That is all that Congress has done in enacting section 2 of DOMA, and its exercise of that authority must be upheld under any reasonable interpretation of its power. III. The Federal Defense of Marriage Act Cannot Be Said to Violate the Asserted Constitutional "Right to Travel" Lastly, plaintiffs contend that DOMA violates an asserted "right to travel" under the Privileges and Immunities Clause or under the "dormant" Commerce Clause. See Complaint 24. Neither of these constitutional provisions is even implicated by DOMA, however. The Privileges and Immunities Clause merely "limits the powers of a state to accord the fundamental rights of a citizen of another state a treatment different than that given its own citizens." Frazier v. Heebe, 788 F.2d 1049, 1052 (5th Cir. 1986), rev'd on other grounds, Frazier v. Heebe, 482 U.S. 641 (1987). Such a limitation clearly is not implicated by a federal recognition of the authority of a state to accord to citizens of another state the same treatment it gives to its own citizens. Indeed, "the Privileges and Immunities Clause protects citizens of one state from abuses

24

Case 8:04-cv-01680-JSM-TBM Document 39 Filed 09/30/04 Page 2728 of 50 Page ID 8:12-cv-01137-CBM-AJW Document 85-2 Filed 11/06/12 Page of 49 PageID 274 #:2013

by other states, and does not address powers . . . of the federal government." Nehme v. I.N.S., 252 F.3d 415, 430 n.18 (5th Cir. 2001); accord Nevada v. Watkins, 914 F.2d 1545, 1555 (9th Cir. 1990); Maynard v. United States Dist. Court, 701 F. Supp. 738, 740 (C.D. Cal. 1988).8 Plaintiffs' reliance on the dormant Commerce Clause fails for the same reason: the negative limitations of that Clause apply only to state enactments. See C & A Carbone, Inc. v. Town of Clarkstown, N.Y., 511 U.S. 383, 402 (1994) ("[T]he dormant Commerce Clause forbids States and their subdivisions to regulate interstate commerce."). Moreover, even if plaintiffs could identify some constitutional "right to travel" implicated here, DOMA would surely survive scrutiny. First, DOMA simply does not curtail anyone's right to travel. It merely permits each State to follow its own policy with respect to marriage, and defines that term for purposes of federal statutes. Thus, DOMA does not affect "the right of a citizen of one State to enter and to leave another State, the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State, [or], for those travelers who elect to become permanent residents, the right to be treated like other citizens of that State." Saenz v. Roe, 526 U.S. 489, 500 (1999) (noting that "right to travel" cases embrace these three components). Significantly, plaintiffs do not and cannot allege that DOMA has actually interfered with their travel, and any speculative suggestion that it may conceivably do so would fall far short of the actual injury necessary to establish their standing to assert such a claim, much less to state a claim for an infringement of any constitutional right. See Whitmore

The same can be said of the "privileges or immunities" language in the Fourteenth Amendment, which provides that "[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." See U.S. Const. amend. XIV, 1; see also United States v. Lebman, 464 F.2d 68, 74 n.13 (5th Cir. 1972) ("The Privileges and Immunities Clause of the Fourteenth Amendment applies, by its terms, to the states, and, as a result, is not relevant here."). 25

Case 8:04-cv-01680-JSM-TBM Document 39 Filed 09/30/04 Page 2829 of 50 Page ID 8:12-cv-01137-CBM-AJW Document 85-2 Filed 11/06/12 Page of 49 PageID 275 #:2014

v. Arkansas, 495 U.S. 149, 155, 157, 158 (1990) (injury alleged cannot be "conjectural or hypothetical," "speculative," or "abstract," but must be "certainly impending"). Furthermore, given that DOMA merely codifies long-standing principles of conflict of laws under Congress's express authority to prescribe the effect of one State's acts in the other States, it cannot violate any implied constitutional "right to travel." Requiring adherence to one State's codified social policies by every other State, in the name of a right to travel, would eliminate conflict of laws principles in this context and "would lead to the absurd result that, wherever [a] conflict arises, the statute of each state must be enforced in the courts of the other, but cannot be in its own." Alaska Packers Ass'n, 294 U.S. at 547; see Ellis v. Anderson, 901 S.W. 2d 46, 47-48 (Ky. Ct. App. 1995) (notwithstanding right to travel, "states have considerable power to adopt an appropriate conflict of laws doctrine in a situation touching more than one state"); Miller v. Stauffer Chem. Co., 581 P.2d 345, 348-49 (Idaho 1978) (same). As the Supreme Court has held, "Full Faith and Credit does not . . . enable one state to legislate for the other or to project its laws across state lines . . . ." Nevada v. Hall, 440 U.S. at 423-24. The Full Faith and Credit Clause expressly preserves this state sovereign prerogative, and surely no implicit "right to travel" can be read to take it away. CONCLUSION For the foregoing reasons, this action should be dismissed with prejudice.

Dated this 27th day of September, 2004. Respectfully submitted, PETER D. KEISLER Assistant Attorney General

26

Case 8:04-cv-01680-JSM-TBM Document 39 Filed 09/30/04 Page 2930 of 50 Page ID 8:12-cv-01137-CBM-AJW Document 85-2 Filed 11/06/12 Page of 49 PageID 276 #:2015

PAUL IGNATIUS PEREZ United States Attorney THOMAS R. LEE Deputy Assistant Attorney General /s/ W. Scott Simpson THEODORE C. HIRT W. SCOTT SIMPSON Attorneys, Department of Justice Civil Division, Room 7210 Post Office Box 883 Washington, D.C. 20044 Telephone: (202) 514-3495 Facsimile: (202) 616-8470 E-mail: [email protected] COUNSEL FOR FEDERAL DEFENDANT

27

Case 8:04-cv-01680-JSM-TBM Document 39 Filed 09/30/04 Page 3031 of 50 Page ID 8:12-cv-01137-CBM-AJW Document 85-2 Filed 11/06/12 Page of 49 PageID 277 #:2016

Exhibits

Exhibit A

Jurisdictional Statement, Baker v. Nelson, No. 71-1027 Text of 2004 Louisiana Ballot Measure No. 1 Louisiana Secretary of State, Unofficial Election Results Inquiry, Results for Election Date: 9/18/04, CA No. 1 (Act of 926-2004), "Marriage in LA - union of 1 man and 1 woman"

Exhibit B

Exhibit C

Case 8:04-cv-01680-JSM-TBM Document 39 Filed 09/30/04 Page 3132 of 50 Page ID 8:12-cv-01137-CBM-AJW Document 85-2 Filed 11/06/12 Page of 49 PageID 278 #:2017

Exhibit A

Case 8:04-cv-01680-JSM-TBM Document 39 Filed 09/30/04 Page 3233 of 50 Page ID 8:12-cv-01137-CBM-AJW Document 85-2 Filed 11/06/12 Page of 49 PageID 279 #:2018

29 of 42

Case 8:04-cv-01680-JSM-TBM Document 39 Filed 09/30/04 Page 3334 of 50 Page ID 8:12-cv-01137-CBM-AJW Document 85-2 Filed 11/06/12 Page of 49 PageID 280 #:2019

30 of 42

Case 8:04-cv-01680-JSM-TBM Document 39 Filed 09/30/04 Page 3435 of 50 Page ID 8:12-cv-01137-CBM-AJW Document 85-2 Filed 11/06/12 Page of 49 PageID 281 #:2020

31 of 42

Case 8:04-cv-01680-JSM-TBM Document 39 Filed 09/30/04 Page 3536 of 50 Page ID 8:12-cv-01137-CBM-AJW Document 85-2 Filed 11/06/12 Page of 49 PageID 282 #:2021

32 of 42

Case 8:04-cv-01680-JSM-TBM Document 39 Filed 09/30/04 Page 3637 of 50 Page ID 8:12-cv-01137-CBM-AJW Document 85-2 Filed 11/06/12 Page of 49 PageID 283 #:2022

33 of 42

Case 8:04-cv-01680-JSM-TBM Document 39 Filed 09/30/04 Page 3738 of 50 Page ID 8:12-cv-01137-CBM-AJW Document 85-2 Filed 11/06/12 Page of 49 PageID 284 #:2023

34 of 42

Case 8:04-cv-01680-JSM-TBM Document 39 Filed 09/30/04 Page 3839 of 50 Page ID 8:12-cv-01137-CBM-AJW Document 85-2 Filed 11/06/12 Page of 49 PageID 285 #:2024

35 of 42

Case 8:04-cv-01680-JSM-TBM Document 39 Filed 09/30/04 Page 3940 of 50 Page ID 8:12-cv-01137-CBM-AJW Document 85-2 Filed 11/06/12 Page of 49 PageID 286 #:2025

36 of 42

Case 8:04-cv-01680-JSM-TBM Document 39 Filed 09/30/04 Page 4041 of 50 Page ID 8:12-cv-01137-CBM-AJW Document 85-2 Filed 11/06/12 Page of 49 PageID 287 #:2026

37 of 42

Case 8:04-cv-01680-JSM-TBM Document 39 Filed 09/30/04 Page 4142 of 50 Page ID 8:12-cv-01137-CBM-AJW Document 85-2 Filed 11/06/12 Page of 49 PageID 288 #:2027

38 of 42

Case 8:04-cv-01680-JSM-TBM Document 39 Filed 09/30/04 Page 4243 of 50 Page ID 8:12-cv-01137-CBM-AJW Document 85-2 Filed 11/06/12 Page of 49 PageID 289 #:2028

39 of 42

Case 8:04-cv-01680-JSM-TBM Document 39 Filed 09/30/04 Page 4344 of 50 Page ID 8:12-cv-01137-CBM-AJW Document 85-2 Filed 11/06/12 Page of 49 PageID 290 #:2029

40 of 42

Case 8:04-cv-01680-JSM-TBM Document 39 Filed 09/30/04 Page 4445 of 50 Page ID 8:12-cv-01137-CBM-AJW Document 85-2 Filed 11/06/12 Page of 49 PageID 291 #:2030

41 of 42

Case 8:04-cv-01680-JSM-TBM Document 39 Filed 09/30/04 Page 4546 of 50 Page ID 8:12-cv-01137-CBM-AJW Document 85-2 Filed 11/06/12 Page of 49 PageID 292 #:2031

Exhibit B

Case 8:04-cv-01680-JSM-TBM Document 39 Filed 09/30/04 Page 4647 of 50 Page ID 8:12-cv-01137-CBM-AJW Document 85-2 Filed 11/06/12 Page of 49 PageID 293 #:2032

Case 8:04-cv-01680-JSM-TBM Document 39 Filed 09/30/04 Page 4748 of 50 Page ID 8:12-cv-01137-CBM-AJW Document 85-2 Filed 11/06/12 Page of 49 PageID 294 #:2033

Case 8:04-cv-01680-JSM-TBM Document 39 Filed 09/30/04 Page 4849 of 50 Page ID 8:12-cv-01137-CBM-AJW Document 85-2 Filed 11/06/12 Page of 49 PageID 295 #:2034

Exhibit C

Case 8:04-cv-01680-JSM-TBM Document 39 Filed 09/30/04 Page 4950 of 50 Page ID 8:12-cv-01137-CBM-AJW Document 85-2 Filed 11/06/12 Page of 49 PageID 296 #:2035

Case 8:12-cv-01137-CBM-AJW Document 85-3 #:2036

Filed 11/06/12 Page 1 of 47 Page ID

Exhibit C

Case 8:12-cv-01137-CBM-AJW Document 85-3 #:2037

Filed 11/06/12 Page 2 of 47 Page ID

Case 8:12-cv-01137-CBM-AJW Document 85-3 #:2038

Filed 11/06/12 Page 3 of 47 Page ID

Case 8:12-cv-01137-CBM-AJW Document 85-3 #:2039

Filed 11/06/12 Page 4 of 47 Page ID

Case 8:12-cv-01137-CBM-AJW Document 85-3 #:2040

Filed 11/06/12 Page 5 of 47 Page ID

Case 8:12-cv-01137-CBM-AJW Document 85-3 #:2041

Filed 11/06/12 Page 6 of 47 Page ID

Case 8:12-cv-01137-CBM-AJW Document 85-3 #:2042

Filed 11/06/12 Page 7 of 47 Page ID

Case 8:12-cv-01137-CBM-AJW Document 85-3 #:2043

Filed 11/06/12 Page 8 of 47 Page ID

Case 8:12-cv-01137-CBM-AJW Document 85-3 #:2044

Filed 11/06/12 Page 9 of 47 Page ID

Case 8:12-cv-01137-CBM-AJW Document 85-3 Filed 11/06/12 Page 10 of 47 Page ID #:2045

Case 8:12-cv-01137-CBM-AJW Document 85-3 Filed 11/06/12 Page 11 of 47 Page ID #:2046

Case 8:12-cv-01137-CBM-AJW Document 85-3 Filed 11/06/12 Page 12 of 47 Page ID #:2047

Case 8:12-cv-01137-CBM-AJW Document 85-3 Filed 11/06/12 Page 13 of 47 Page ID #:2048

Case 8:12-cv-01137-CBM-AJW Document 85-3 Filed 11/06/12 Page 14 of 47 Page ID #:2049

Case 8:12-cv-01137-CBM-AJW Document 85-3 Filed 11/06/12 Page 15 of 47 Page ID #:2050

Case 8:12-cv-01137-CBM-AJW Document 85-3 Filed 11/06/12 Page 16 of 47 Page ID #:2051

Case 8:12-cv-01137-CBM-AJW Document 85-3 Filed 11/06/12 Page 17 of 47 Page ID #:2052

Case 8:12-cv-01137-CBM-AJW Document 85-3 Filed 11/06/12 Page 18 of 47 Page ID #:2053

Case 8:12-cv-01137-CBM-AJW Document 85-3 Filed 11/06/12 Page 19 of 47 Page ID #:2054

Case 8:12-cv-01137-CBM-AJW Document 85-3 Filed 11/06/12 Page 20 of 47 Page ID #:2055

Case 8:12-cv-01137-CBM-AJW Document 85-3 Filed 11/06/12 Page 21 of 47 Page ID #:2056

Case 8:12-cv-01137-CBM-AJW Document 85-3 Filed 11/06/12 Page 22 of 47 Page ID #:2057

Case 8:12-cv-01137-CBM-AJW Document 85-3 Filed 11/06/12 Page 23 of 47 Page ID #:2058

Case 8:12-cv-01137-CBM-AJW Document 85-3 Filed 11/06/12 Page 24 of 47 Page ID #:2059

Case 8:12-cv-01137-CBM-AJW Document 85-3 Filed 11/06/12 Page 25 of 47 Page ID #:2060

Case 8:12-cv-01137-CBM-AJW Document 85-3 Filed 11/06/12 Page 26 of 47 Page ID #:2061

Case 8:12-cv-01137-CBM-AJW Document 85-3 Filed 11/06/12 Page 27 of 47 Page ID #:2062

Case 8:12-cv-01137-CBM-AJW Document 85-3 Filed 11/06/12 Page 28 of 47 Page ID #:2063

Case 8:12-cv-01137-CBM-AJW Document 85-3 Filed 11/06/12 Page 29 of 47 Page ID #:2064

Case 8:12-cv-01137-CBM-AJW Document 85-3 Filed 11/06/12 Page 30 of 47 Page ID #:2065

Case 8:12-cv-01137-CBM-AJW Document 85-3 Filed 11/06/12 Page 31 of 47 Page ID #:2066

Case 8:12-cv-01137-CBM-AJW Document 85-3 Filed 11/06/12 Page 32 of 47 Page ID #:2067

Case 8:12-cv-01137-CBM-AJW Document 85-3 Filed 11/06/12 Page 33 of 47 Page ID #:2068

Case 8:12-cv-01137-CBM-AJW Document 85-3 Filed 11/06/12 Page 34 of 47 Page ID #:2069

Case 8:12-cv-01137-CBM-AJW Document 85-3 Filed 11/06/12 Page 35 of 47 Page ID #:2070

Case 8:12-cv-01137-CBM-AJW Document 85-3 Filed 11/06/12 Page 36 of 47 Page ID #:2071

Case 8:12-cv-01137-CBM-AJW Document 85-3 Filed 11/06/12 Page 37 of 47 Page ID #:2072

Case 8:12-cv-01137-CBM-AJW Document 85-3 Filed 11/06/12 Page 38 of 47 Page ID #:2073

Case 8:12-cv-01137-CBM-AJW Document 85-3 Filed 11/06/12 Page 39 of 47 Page ID #:2074

Case 8:12-cv-01137-CBM-AJW Document 85-3 Filed 11/06/12 Page 40 of 47 Page ID #:2075

Case 8:12-cv-01137-CBM-AJW Document 85-3 Filed 11/06/12 Page 41 of 47 Page ID #:2076

Case 8:12-cv-01137-CBM-AJW Document 85-3 Filed 11/06/12 Page 42 of 47 Page ID #:2077

Case 8:12-cv-01137-CBM-AJW Document 85-3 Filed 11/06/12 Page 43 of 47 Page ID #:2078

Case 8:12-cv-01137-CBM-AJW Document 85-3 Filed 11/06/12 Page 44 of 47 Page ID #:2079

Case 8:12-cv-01137-CBM-AJW Document 85-3 Filed 11/06/12 Page 45 of 47 Page ID #:2080

Case 8:12-cv-01137-CBM-AJW Document 85-3 Filed 11/06/12 Page 46 of 47 Page ID #:2081

Case 8:12-cv-01137-CBM-AJW Document 85-3 Filed 11/06/12 Page 47 of 47 Page ID #:2082