Golinski v. United States Office of Personnel Management

Filing 177

NOTICE OF QUESTIONS FOR HEARING. Signed by Judge Jeffrey S. White on December 14, 2011. (jswlc2, COURT STAFF) (Filed on 12/14/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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KAREN GOLINSKI,
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Plaintiff,
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No. C 10-00257 JSW

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For the Northern District of California

United States District Court

v.
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UNITED STATES OFFICE OF PERSONNEL
MANAGEMENT and JOHN BERRY, Director
of the United States Office of Personnel
Management, in his official capacity,

NOTICE OF QUESTIONS FOR
HEARING

Defendant.
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TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD, PLEASE TAKE

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NOTICE OF THE FOLLOWING QUESTIONS FOR THE HEARING SCHEDULED ON

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DECEMBER 16, 2011 AT 9:00 A.M.:

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The Court has reviewed the parties’ papers and, thus, does not wish to hear the parties

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reargue matters addressed in those pleadings. If the parties intend to rely on authorities not

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cited in their briefs, they are ORDERED to notify the Court and opposing counsel of these

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authorities reasonably in advance of the hearing and to make copies available at the hearing. If

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the parties submit such additional authorities, they are ORDERED to submit the citations to the

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authorities only, with reference to pin cites and without argument or additional briefing. Cf.

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N.D. Civil Local Rule 7-3(d). The parties will be given the opportunity at oral argument to

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explain their reliance on such authority. The Court suggests that associates or of counsel

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attorneys who are working on this case be permitted to address some or all of the Court’s

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questions contained herein.

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The parties shall each have 45 minutes to address the following questions:

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1.

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The passage of Section 3 of the Defense of Marriage Act (“DOMA”) marks a unique
departure from the recognition the federal government historically has afforded to State
marital status determinations. See, e.g., Elk Grove Unified School District v. Newdow,
542 U.S. 1, 12 (2004) (holding that “[t]he whole subject of the domestic relations of
husband and wife, parent and child, belongs to the laws of the States and not to the laws
of the United States.”); see also Boggs v. Boggs, 520 U.S. 833, 848 (1997) (holding that
family law, including “declarations of status, e.g., marriage, annulment, divorce, custody
and paternity,” is the archetypal area of local concern).

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a.

As DOMA represents a stark departure from the federalist tradition and
implicates a core State power to govern domestic relations, is there any
authority for the Court to subject the statute to a more rigorous
constitutional scrutiny?

b.

The few unique examples cited by BLAG when Congress legislated in
the area of domestic relations occurred when Congress was explicitly
acting in the role of state government. Are there any historical examples
in which Congress legislated on behalf of the federal government in the
area of domestic relations?

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United States District Court

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2.

Why should the Court not subject DOMA to heightened scrutiny for impacting
marriage, as a basic fundamental freedom and an exercise of personal decision-making
protected by the right of privacy? See, e.g., Loving v. Commonwealth of Virginia, 388
U.S. 1, 12 (1967); In re Levenson, 587 F.3d 925, 931 n.5 (9th Cir. 2009).

3.

In Lawrence v. Texas, 539 U.S. 558, 567 (2003), the Supreme Court, in overruling
Bowers v. Hardwick, 478 U.S. 186, 190 (1986), noted that the Bowers Court had
“misapprehended the claim of liberty presented to it” and had failed “to appreciate the
extent of the liberty at stake.” Here, BLAG advocates defining the right at issue as the
right to same-sex marriage. Is that too narrowly defining the right at issue? What is the
authority for the position that only the right to opposite-sex marriage is fundamental as
opposed to the right to marriage generally?

4.

Are classifications based on religious affiliation treated as suspect class and subject to
heightened scrutiny under an Equal Protection analysis? How does BLAG distinguish
the line of authority treating classifications based on religious affiliation as a suspect
class from classifications based on sexual orientation?

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What is the statutory authority for and evidence of compliance with the role that the
Bipartisan Legal Advisory Group has assumed in this matter? Is this group actually
bipartisan? Does BLAG have the support – and funding for the increasing cost of
defending DOMA – from a majority of Congress or just from the House of
Representatives? See Immigration and Naturalization Service v. Chadha, 462 U.S. 919,
940 (holding that Congress is the proper party to defend the validity of a statute when an
agency of government charged with enforcing the statute agrees that the statute is
unconstitutional).

6.

How does BLAG distinguish the ruling in Gill v. Office of Personnel Management, 699
F. Supp. 2d 374 (D. Mass. 2010), which found that DOMA does not pass constitutional
muster under even rational basis scrutiny?

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7.

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What are BLAG’s proffered bases for upholding the constitutionality of DOMA?
a.

BLAG argues that DOMA provides consistency in the definition of
marriage. However, traditionally, marriage has been defined by the
states. Under DOMA, for the first time, federal officials are now tasked
with determining the validity of particular marriages that have been
sanctioned under state law. How does treating some state sanctioned
marriages different from others promote consistency or maintain the
status quo?

b.

The fact that marriage traditionally has been defined as between a man
and a woman merely describes what has been. How does codifying this
description constitute a justification, reason, or basis for restricting
marriage? See Heller v. Doe, 509 U.S. 312, 326 (1993) (holding that
“[a]ncient lineage of a legal concept does not give it immunity from
attack for lacking a rational basis”); Lawrence concurrence. Does BLAG
have any authority for the proposition that codification of a long-standing
tradition independently constitutes a rational basis?

c.

In support of miscegenation laws, proponents argued that the longstanding tradition of the separation of the races provided justification for
prohibiting inter-racial marriage. How does BLAG’s argument about the
tradition of heterosexual marriage differ from the miscegenation context?

d.

How does the withholding of federal benefits to children of families with
same-sex parents encourage responsible parenting and child rearing?

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8.

How does the sharing of benefits with another group of lawfully married persons
denigrate the importance of the benefits already conferred upon the original group? In
other words, how are heterosexual lawfully married persons affected by the sharing of
benefits with lawfully married homosexual persons?

9.

To the extent the Court decides the issues presented on the motion for summary
judgment, does BLAG contend the motion to strike evidentiary materials is applicable?

10.

Do the parties have anything further they wish to address?

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IT IS SO ORDERED.
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Dated: December 14, 2011
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JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE

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