Dragovich et al v. United States Department of the Treasury et al

Filing 124

ORDER GRANTING PLAINTIFFS 11 MOTION FOR SUMMARY JUDGMENT AND DENYING THE BLAGS AND FEDERAL DEFENDANTS 116 , 117 CROSS-MOTIONS FOR SUMMARY JUDGMENT.. Signed by Judge Claudia Wilken on 5/24/2012. (ndr, COURT STAFF) (Filed on 5/24/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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MICHAEL DRAGOVICH; MICHAEL
GAITLEY; ELIZABETH LITTERAL;
PATRICIA FITZSIMMONS; CAROLYN
LIGHT; CHERYL LIGHT; DAVID BEERS;
CHARLES COLE; RAFAEL V.
DOMINGUEZ; and JOSE G.
HERMOSILLO, on behalf of
themselves and all others
similarly situated,

9

United States District Court
For the Northern District of California

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Plaintiffs,
v.

No. C 10-01564 CW
ORDER GRANTING
PLAINTIFFS’ MOTION
FOR SUMMARY
JUDGMENT AND
DENYING THE BLAG’S
AND FEDERAL
DEFENDANTS’ CROSSMOTIONS FOR
SUMMARY JUDGMENT
(Docket Nos. 111,
116 and 117)

UNITED STATES DEPARTMENT OF THE
TREASURY; TIMOTHY GEITHNER, in
his official capacity as
Secretary of Treasury, United
States Department of the
Treasury; INTERNAL REVENUE
SERVICE; DOUGLAS SHULMAN, in his
official capacity as Commissioner
of the Internal Revenue Service;
BOARD OF ADMINISTRATION OF
CALIFORNIA PUBLIC EMPLOYEES’
RETIREMENT SYSTEM; and ANNE
STAUSBOLL, in her official
capacity as Chief Executive
Officer, CalPERS,
Defendants.
________________________________/

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Plaintiffs challenge the constitutionality of § 3 of the
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Defense of Marriage Act (DOMA), 1 U.S.C. § 7, and § 7702B(f) of
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the Internal Revenue Code, 26 U.S.C. § 7702B(f), to the extent
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that these statutes limit Plaintiffs’ participation in a long-term
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care insurance program maintained by the California Public
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Employees’ Retirement System (CalPERS).

Plaintiffs contend that

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these federal provisions violate the Constitution’s guarantees of
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equal protection and substantive due process by barring the same-

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sex legal spouses and registered domestic partners of California

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public employees from enrollment in the CalPERS long-term care

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plan, even though opposite-sex legal spouses are permitted to

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enroll.

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Plaintiffs move for summary judgment on their claims against

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all Defendants.

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partially supporting Plaintiffs’ motion for summary judgment.

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Federal Defendants argue that gay men and lesbians should be found

Federal Defendants have submitted a brief

United States District Court
For the Northern District of California

10

to be a suspect class and that § 3 of the DOMA infringes their

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equal protection rights.

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Plaintiffs’ motion and cross-move for summary judgment as to

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Plaintiffs’ equal protection claim challenging § 3 of the DOMA on

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behalf of same-sex couples who are registered domestic partners

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under California law, and as to Plaintiffs’ substantive due

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process challenge to § 3 of the DOMA.

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cross-move for judgment that Title 26 U.S.C. § 7702B(f) is

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constitutionally valid.

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However, Federal Defendants oppose

Federal Defendants also

Because Federal Defendants would not defend the validity of

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§ 3 of the DOMA against the equal protection challenge by same-sex

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spouses, the Court granted the Bipartisan Legal Advisory Group of

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the United States House of Representatives (BLAG) leave to

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intervene to defend the law.

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Plaintiffs’ motion for summary judgment that § 3 of the DOMA is

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unconstitutional as it affects same-sex spouses here, and has

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cross-moved for summary adjudication that the provision is

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constitutional.

Accordingly, the BLAG has opposed

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2

1

State Defendants have filed a response to Plaintiffs’ motion,

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seeking guidance from the Court and a stay of any federal action

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disqualifying the CalPERS program, in the event that the Court

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grants Plaintiffs’ motion for summary judgment.1

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Having considered all of the parties’ submissions and oral

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argument, the Court grants Plaintiffs’ motion for summary judgment

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and denies Federal Defendants’ and the BLAG’s cross-motions.

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BACKGROUND
I.

United States District Court
For the Northern District of California

10

Long-term Care Insurance and the Challenged Provisions
Plaintiffs are California public employees and their same-sex

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spouses and registered domestic partners, who are in long-term

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committed relationships recognized and protected under California

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law.

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provides retirement and health benefits, including long-term care

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insurance, to many of the state’s public employees and retirees

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and their families.

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when a person needs assistance with basic activities of living due

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to injury, old age, or severe impairments related to chronic

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illnesses, such as Alzheimer’s disease.

As explained in this Court’s previous orders, CalPERS

Long-term care insurance provides coverage

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In 1996, Congress passed the DOMA, which, among other things,

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defined the terms “spouse” and “marriage” for federal law purposes

22

in a manner limiting them to heterosexual couples.

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§ 3 of the DOMA, the United States Code provides,

As amended by

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State Defendants assert that Federal Defendants could
eliminate the need for a stay by agreeing that they will not seek
to disqualify the CalPERS long-term care plan, in the event that
the Court’s order were later overturned. However, Federal
Defendants apparently have not agreed.
3

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2
3
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In determining the meaning of any Act of Congress, or
of any ruling, regulation, or interpretation of the
various administrative bureaus and agencies of the
United States, the word “marriage” means only a legal
union between one man and one woman as husband and
wife, and the word “spouse” refers only to a person of
the opposite sex who is a husband or a wife.
1 U.S.C. § 7.
Title 26 U.S.C. § 7702B(f) was also enacted in 1996, as part

7

of the Health Insurance Portability and Accountability Act

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(HIPAA), providing favorable federal tax treatment to participants

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in qualified state-maintained long-term care insurance plans for

United States District Court
For the Northern District of California

10

state employees.

11

long-term care insurance program is a qualified state-maintained

12

plan pursuant to § 7702B(f).

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26 U.S.C. § 7702B(f).

Currently, the CalPERS

Section 7702B(f)(2) disqualifies a state-maintained plan from

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favorable tax treatment if it provides coverage to individuals

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other than those specified under its subparagraph (C).

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of eligible individuals in § 7702B(f)(2)(C) includes state

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employees and former employees, their spouses, and individuals

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bearing a relationship to the employees or spouses which is

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described in subparagraphs (A) through (G) of 26 U.S.C.

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§ 152(d)(2).

21

The list

Id.

Section 152(d)(2), the part of the tax code from which

22

subparagraph (C) draws its list of eligible relatives, defines the

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relatives for whom a taxpayer may claim a dependent exemption.

24

See 26 U.S.C. §§ 151-52.

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through (H), identifies the following individuals as “qualifying

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relatives” for the dependent exemption:

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(A)

Section 152(d)(2), subparagraphs (A)

A child or a descendant of a child.

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4

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(B)

A brother, sister, stepbrother, or stepsister.

2

(C)

The father or mother, or an ancestor of either.

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(D)

A stepfather or stepmother.

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(E)

A son or daughter of a brother or sister of the
taxpayer.

(F)

A brother or sister of the father or mother of
the taxpayer.

(G)

A son-in-law, daughter-in-law, father-in-law,
mother-in-law, brother-in-law, or sister-in-law.

(H)

An individual . . . who, for the taxable year of
the taxpayer, has the same principal place of
abode as the taxpayer and is a member of the
taxpayer’s household.

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United States District Court
For the Northern District of California

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26 U.S.C. § 152(d)(2).
When it chose to incorporate subparagraphs (A) through (G),

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Congress specifically chose not to carry over subparagraph (H) to

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subparagraph (C) of § 7702B(f)(2).

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exclude subparagraph (H) from subparagraph (C) of § 7702B(f)(2),

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registered domestic partners of California public employees would

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have qualified as individuals eligible to enroll in the CalPERS

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long-term care plan.

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Had Congress not chosen to

In addition to providing favorable tax treatment to state-

21

maintained long-term care plans, Congress approved such treatment

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for long-term care coverage purchased through the private market.

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26 U.S.C. § 7702B(a)-(b).

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Congress enacted these provisions because of the critical

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role of long term care insurance in protecting families.

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legislation . . . provides tax deductibility for long term care

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insurance, making it possible for more Americans to avoid

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financial difficulty as the result of chronic illness.”
5

“The

142 Cong.

1

Rec. S3578-01 at *3608 (Statement of Sen. McCain) (Apr. 18, 1996);

2

see also Joint Committee on Taxation, “Description of Federal Tax

3

Rules and Legislative Background Relating to Long-Term Care

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Scheduled for a Public Hearing Before the Senate Committee on

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Finance on March 27, 2001,” at 2001 WL 36044116 (provisions

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granting tax advantages for long-term care plans were adopted “to

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provide an incentive for individuals to take financial

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responsibility for their long-term care needs.”).

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II.

United States District Court
For the Northern District of California

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Congressional Denial of Federal Legal Recognition for SameSex Couples
For more than two decades, jurisdictions other than the

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federal government have extended to same-sex couples legal

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recognition in various forms, such as registered domestic

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partnerships, civil unions, reciprocal beneficiary relationships

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and, more recently, civil marriage.2

Over time, the number of

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2

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As of 1992, registered domestic partnership benefits were
made available in Travis County, Texas; Dane County, Wisconsin;
the California counties of Alameda, San Mateo and Santa Cruz; and
the cities of Berkeley, Los Angeles, Oakland, Santa Cruz, San
Francisco, West Hollywood, New York, Ithaca, Cambridge, West Palm
Beach, Ann Arbor, East Lansing, Madison, Minneapolis, Seattle and
Tahoma Park. 138 Cong. Rec. S10876-01, 1992 WL 180795, at
*S10904. In April 1992, the District of Columbia approved the
Health Care Benefits Expansion Act, D.C. Law 9-114, establishing a
local domestic partnership registry. See also D.C. Code § 36-1401
(legislative history of Law 9-114). As discussed later in this
order, Congress delayed implementation of the registry.
Since 1997, nineteen states have extended legal recognition
to same-sex couples for purposes of state law. M.V. Lee Badgett,
Jody L. Herman, Patterns of Relationship Recognition by Same-Sex
Couples in the United States, the Williams Institute, University
of California, Los Angeles, School of Law, 1, n.1, Appendix 1,
(November 2011) (providing a detailed survey of the various
statuses, their effective dates and relevant statutory citations),
available at
http://williamsinstitute.law.ucla.edu/research/marriage-andcouples-rights/patterns-of-relationship-recognition-by-same-sexcouples-in-the-united-states/.
6

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jurisdictions granting these forms of legal recognition has

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increased.

3

Congress discussed registered domestic partnership laws prior

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to and during 1996, when the statutes challenged here were passed.

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These discussions occurred after the District of Columbia passed,

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in April 1992, the Health Care Benefits Expansion Act, which

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established a domestic partnership registry in that jurisdiction.

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Congress reacted to the new law by barring any local or federal

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funding to implement, enforce or administer the registry.

United States District Court
For the Northern District of California

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District of Columbia Appropriations Act, 1993, Pub. L. No. 102-

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382, 106 Stat. 1422 (1992).

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“If there ever was an attack on the family in this country, it is

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[the District of Columbia’s] Domestic Partnership Act . . . To me,

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this bill totally destroys the families of this country.”

15

Cong. Rec. H2950-04, 1992 WL 96521, at *H2950.

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the appropriations ban before the Senate, Senator Brock Adams

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entered into the Congressional record information detailing

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domestic partnership recognition in numerous jurisdictions, apart

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from the District of Columbia.

20

180795, at *S10904.

21

Representative Clyde Holloway argued,

138

In arguing against

138 Cong. Rec. S10876-01, 1992 WL

In 1993, as part of a successful drive to renew the funding

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ban, Representative Ernst Istook argued, “Now, obviously this was

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passed by the District of Columbia to enable people, more than

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anything else, who are in a homosexual relationship to register an

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Currently, nine states and the District of Columbia offer
registered domestic partnerships or civil unions with legal rights
comparable to marriage, and six states and the District of
Columbia permit same-sex couples to marry. Id. at 3, Table 1.
7

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equivalent of a gay marriage.

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this particular proposal is abhorrent, in my view.”

3

Rec. H4353-01, 1993 WL 236117, at *H4355, *H4358; District of

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Columbia Appropriations Act, 1994, Pub. L. No. 103-127, 107 Stat.

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1336 (1993).

That is one of the reasons that
139 Cong.

Other representatives echoed these arguments in favor of

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renewing the appropriations ban and the ban was renewed every year

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from 1993 through 2001.3

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WL 363727, at *H5601 (Representative Robert Dornan proclaiming,

10
United States District Court
For the Northern District of California

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“From my historical knowledge, this business of domestic partner

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benefits started in Seattle where they were trying to give

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privileged treatment to lesbian and homosexual partners . . . Let

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us get rid of this domestic partnership nonsense.”); 141 Cong.

14

Rec. H11627-02, 1995 WL 639923, at *H11659 (Representative Cliff

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Stearns asserting that domestic partnership registration laws

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“undermine the traditional moral values that are the bedrock of

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this Nation.”).4

See e.g., 140 Cong. Rec. H5589-02, 1994

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27
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3

In 2001, Congress authorized a more limited appropriations
ban, permitting the use of non-federal funds to institute and
administer the District of Columbia domestic partnership registry.
District of Columbia Appropriations Act, 2002, Pub. L. No. 107-96,
115 Stat. 923 (2001). Accordingly, in 2002, the District of
Columbia finally implemented its domestic partnership registry.
See 49 D.C. Reg. 5419 (June 14, 2002).
4

A more detailed explanation of Congress’s actions to block
implementation of the District of Columbia’s domestic partnership
registry is provided in this Court’s January 26, 2012 order
denying Federal Defendants’ motion to dismiss Plaintiffs’
constitutional challenge to § 7702B(f) on behalf of California
registered domestic partners.
8

1

In 1996, as well as renewing the ban on funding for the

2

District of Columbia domestic partnership registry, Congress

3

enacted the DOMA and the HIPAA, containing the provisions

4

challenged here.

5

It is undisputed that one significant consideration in

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enacting § 3 of the DOMA was Congress’s desire to foreclose

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federal recognition of same-sex marriage.

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of becoming the first state in the nation to grant marriage

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licenses to same-sex couples.5

Hawaii was on the verge

The House Report on the pending

United States District Court
For the Northern District of California

10

bill to enact the DOMA stated, “Civil laws that permit only

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heterosexual marriage reflect and honor a collective moral

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judgment about human sexuality.

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disapproval of homosexuality, and a moral conviction that

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heterosexuality better comports with traditional (especially

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Judeo-Christian) morality.”

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report adopted the view that “‘[S]ame-sex marriage, if sanctified

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by the law, if approved by the law, legitimates a public union, a

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legal status that most people . . . feel ought to be

19

illegitimate.’”

20

(quoting Representative Henry Hyde, Chairman of the Judiciary

21

Committee).

This judgment entails both moral

H.R. Rep. 104-664, at 15-16.

The

Id. at 16 (alteration and omission in original)

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Moreover, the limiting definition of marriage proposed in § 3

23

of the DOMA was viewed as necessary to exclude registered domestic

24

partners from federal recognition and benefits.

When Senator Don

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26
5

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The BLAG acknowledges that, when Congress enacted the DOMA,
it recognized that Hawaii was on the verge of legalizing same-sex
marriage. BLAG Cross Mot. Summ. J. 4.
9

1

Nickles introduced the bill that became the DOMA, he explained

2

this, stating,

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4
5
6
7
8
9

United States District Court
For the Northern District of California

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11
12

Another example of why we need a Federal definition of
the terms “marriage” and “spouse” stems from
experience during debate on the Family and Medical
Leave Act of 1993. Shortly before passage of this act,
I attached an amendment that defined “spouse” as “a
husband or wife, as the case may be.” When the
Secretary of Labor published his proposed regulations,
a considerable number of comments were received urging
that the definition of “spouse” be “broadened to
include domestic partners in committed relationships,
including same-sex relationships.” When the Secretary
issued the final rules he stated that the definition
of “spouse” and the legislative history precluded such
a broadening of the definition.
142 Cong. Rec. 4851-02, 1996 WL 233584, at *S4869-70.
A proposed amendment to the Defense of Marriage bill would

13

have required the General Accounting Office to “undertake a study

14

of the differences in the benefits, rights and privileges

15

available to persons in a marriage and the benefits, rights and

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privileges available to persons in a domestic partnership

17

resulting from the non-recognition of domestic partnerships as

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legal unions by State and Federal laws.”

19

1996 WL 392787, at *H7503.

20

Representative Charles Canady stated, “This motion represents a

21

transparent attempt to give some statutory recognition to domestic

22

partnerships.”

23

The amendment was defeated.

24

392787, at *H7505.

25

142 Cong. Rec. 7480-05,

In opposition to the amendment,

142 Cong. Rec. 7480-05, 1996 WL 392787, at *H7504.
142 Cong. Rec. 7480-05, 1996 WL

Thus, legislative history that is relevant to both § 3 of the

26

DOMA and § 7702B(f) of Title 26 contains evidence of moral

27

condemnation and social disapprobation of same-sex couples.

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10

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2

PROCEDURAL BACKGROUND
In their first motion to dismiss, Federal Defendants

3

addressed Plaintiffs’ equal protection and substantive due process

4

challenge to § 3 of the DOMA.

5

finding that, under the rational basis standard of review,

6

Plaintiffs had stated a cognizable constitutional claim.

7

The Court denied the motion,

At the time the Court considered the first motion to dismiss,

8

Plaintiffs were all couples legally married under California law.

9

Subsequently, however, Plaintiffs filed a Second Amended Complaint

United States District Court
For the Northern District of California

10

adding as Plaintiffs Rafael V. Dominguez and Jose G. Hermosillo,

11

who are not legally married, but are registered as domestic

12

partners in California.

13

complaint, arguing that Dominguez and Hermosillo had not alleged a

14

cognizable equal protection or substantive due process claim based

15

on § 7702B(f)’s failure to include registered domestic partners.

16

The Court denied the motion, holding that Ninth Circuit precedent

17

precluded it from applying strict scrutiny, but finding that

18

Plaintiffs had stated a claim that the exclusion violated the

19

rational basis test.

20

Federal Defendants moved to dismiss this

In addition to denying Federal Defendants’ motions to dismiss

21

the Court granted Plaintiffs’ unopposed motion to certify a class

22

pursuant to Federal Rule of Civil Procedure 23(b)(2).

23

certified class was defined as, “Present and future CalPERS

24

members who are in legally recognized same-sex marriages and

25

registered domestic partnerships together with their spouses and

26

partners, who as couples and families are denied access to the

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CalPERS Long-Term Care Program on the same basis as similarly

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11

The

1

situated present and future CalPERS members who are in opposite-

2

sex marriages, and their spouses.”

3
4

Docket No. 92.

The Court now considers the parties’ cross-motions for
summary judgment.

5

LEGAL STANDARD

6

Summary judgment is properly granted when no genuine and

7

disputed issues of material fact remain, and when, viewing the

8

evidence most favorably to the non-moving party, the movant is

9

clearly entitled to prevail as a matter of law.

Fed. R. Civ. P.

United States District Court
For the Northern District of California

10

56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);

11

Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th Cir.

12

1987).

13

The moving party bears the burden of showing that there is no

14

material factual dispute.

15

true the opposing party’s evidence, if supported by affidavits or

16

other evidentiary material.

17

815 F.2d at 1289.

18

in favor of the party against whom summary judgment is sought.

19

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

20

587 (1986); Intel Corp. v. Hartford Accident & Indem. Co., 952

21

F.2d 1551, 1558 (9th Cir. 1991).

22

Therefore, the court must regard as

Celotex, 477 U.S. at 324; Eisenberg,

The court must draw all reasonable inferences

Material facts which would preclude entry of summary judgment

23

are those which, under applicable substantive law, may affect the

24

outcome of the case.

The substantive law will identify which

25

facts are material.

Anderson v. Liberty Lobby, Inc., 477 U.S.

26

242, 248 (1986).

27
28
12

1
2
3

DISCUSSION
I. Equal Protection
Plaintiff same-sex spouses claim that their rights to equal

4

protection are violated by § 3 of the DOMA.

5

Plaintiff registered domestic partners assert that their equal

6

protection rights are infringed by § 3 of the DOMA and § 7702B(f)

7

of Title 26.

8

the Constitution’s promise of equal treatment under the law.

9

Romer v. Evans, 517 U.S. 620, 631 (1996).

In addition,

The doctrine of equal protection exists to ensure

United States District Court
For the Northern District of California

10

The BLAG relies heavily on two cases, Baker v. Nelson, 409

11

U.S. 810 (1972), and Adams v. Howerton, 673 F.2d 1036 (9th Cir.

12

1982), to argue that Plaintiffs’ equal protection challenge to § 3

13

of the DOMA is foreclosed.

14

dismissed an appeal from the Minnesota Supreme Court’s decision to

15

uphold, against a federal equal protection challenge, a state law

16

prohibiting same-sex civil marriage.

17

appeal in a single sentence, stating that it was “dismissed for

18

want of a substantial federal question.”

19

In Baker, the Supreme Court summarily

The Court resolved the

409 U.S. at 810.

Mandel v. Bradley, 432 U.S. 173, 176 (1977), explains the

20

precedential weight of a summary action by the Supreme Court.

21

Mandel involved an independent candidate’s claim that procedures

22

under the Maryland Election Code violated his First and Fourteenth

23

Amendment rights to access to the ballot by imposing an early

24

deadline for filing nominating petitions.

25

Mandel, the Supreme Court had summarily affirmed a lower court’s

26

decision invalidating Pennsylvania’s procedures for independent

27

candidates to access the ballot.

28

the summary affirmance in its prior case did not mandate the

Id. at 174.

Prior to

In Mandel, the Court held that

13

1

result reached by the district court because, unlike the Maryland

2

procedure, the Pennsylvania requirements entailed both an early

3

filing date and a twenty-one day limitation on signature

4

gathering.

5

affirmance is an affirmance of the judgment only.”

6

The Court further explained, “Summary affirmances and dismissals

7

for want of a substantial federal question . . . prevent lower

8

courts from coming to opposite conclusions on the precise issues

9

presented and necessarily decided by those actions.”

Id. at 177.

The Court stated that “a summary
Id. at 176.

Id.; cf.

United States District Court
For the Northern District of California

10

Hicks v. Miranda, 422 U.S. 332, 344-45 (1975) (holding that the

11

Supreme Court’s prior summary affirmance of a California appellate

12

decision upholding the constitutionality of an obscenity statute

13

precluded a three-judge federal court from finding that the same

14

statute was unconstitutional.)

15

The Ninth Circuit recently addressed the precedential value

16

of Baker, in the context of a constitutional challenge to

17

Proposition 8, a ballot measure that eliminated the right to marry

18

for same-sex couples in California.

19

Mandel and Hicks, and determined that Baker was “not pertinent,”

20

because “we do not address the question of the constitutionality

21

of a state’s ban on same-sex marriage.”

22

1052, 1082 n.14 (9th Cir. 2012). The Ninth Circuit reasoned that

23

the case before it presented “a wholly different question: whether

24

the people of a state may by plebiscite strip a group of a right

25

or benefit, constitutional or otherwise, that they had previously

26

enjoyed on terms of equality with all others in the state.”

27

Likewise, this case is distinguishable from Baker.

28

There, the court considered

Perry v. Brown, 671 F.3d

Id.

Whereas

the action in Baker addressed whether Minnesota violated the equal
14

1

protection clause by excluding same-sex couples from civil

2

marriage, the married Plaintiffs here have already gained legal

3

recognition under California law.

4

federal provision, § 3 of the DOMA, infringes Plaintiffs’ rights

5

under equal protection principles by denying them a benefit

6

available to legally married heterosexual couples.

7

in this district has distinguished Baker in the context of an

8

action challenging § 3 of the DOMA.

9

Pers. Mgmt., 2012 WL 569685, *8 n.5 (N.D. Cal.) (granting summary

The issue is instead whether a

United States District Court
For the Northern District of California

10

judgment in favor of plaintiff).

11

Another judge

Golinski v. U.S. Office of

Plaintiffs’ equal protection claim.

12

Baker does not foreclose

In Adams, a United States citizen and an Australian national

13

in a same-sex relationship secured a marriage license from a

14

county clerk in Colorado.

15

and Naturalization Service to permit his spouse to remain in the

16

country as an “immediate relative,” pursuant to § 201(b) of the

17

Immigration and Nationality Act of 1952 (INA), 8 U.S.C. § 1151(b).

18

Following the agency’s denial of his petition and a final

19

administrative decision denying his appeal, the couple filed an

20

action challenging the exclusion on constitutional grounds.

21

Ninth Circuit stated that, even if Colorado recognized the

22

marriage, Congress did not intend to confer spousal status based

23

on same-sex marriages under § 201(b).

24

court arrived at its statutory interpretation based on its view of

25

the ordinary meaning of marriage, and a 1965 amendment to the INA

26

establishing a mandatory exclusion of homosexuals as inadmissible

27

aliens.

28

express[ed] [] intent to exclude homosexuals.”

The citizen petitioned the Immigration

673 F.2d at 1040-41.

The

The

The mandatory exclusion evidenced Congress’s “clearly

15

Id. at 1040.

The

1

court also determined that the legislative exclusion withstood

2

constitutional scrutiny.

3

the denial of legal recognition to same-sex spouses satisfied the

4

rational basis test in that Congress manifested a concern for

5

family integrity in passing laws facilitating the immigration of

6

spouses in valid heterosexual marriages.

7

determined, with little discussion, that Congress could have

8

determined that legal recognition of same-sex marriages was not

9

necessary in that such couples were not recognized in most, if

Id. at 1041-43.

The court found that

The court also

United States District Court
For the Northern District of California

10

any, states because they violate traditional and often prevailing

11

social mores, or because they “never produce offspring.”

12

1042-43.

13

Id. at

Adams does not control this case in light of Supreme Court

14

and Ninth Circuit rulings and legislative developments since the

15

decision.

16

2003) (en banc), the Ninth Circuit explained that a district court

17

or a three-judge panel is free to re-examine the holding of a

18

prior panel when the United States Supreme Court, or a controlling

19

state Supreme Court ruling, has “undercut the theory or reasoning

20

underlying the prior circuit precedent in such a way that the

21

cases are clearly irreconcilable.”

22

decided by the higher court need not be identical in order to be

23

controlling.”

In Miller v. Gammie, 335 F.3d 889, 899-900 (9th Cir.

Id. at 900.

“[T]he issues

Id.

24

Similarly, under Ninth Circuit precedent, a prior

25

determination by the court is not controlling if subsequent

26

legislation has undermined the decision.

27

Carillo v. Ashcroft, 322 F.3d 1166, 1170-72 (9th Cir. 2003), the

28

Ninth Circuit panel found that it was required to revisit an
16

For example, in Zazueta-

1

existing rule “on a clean slate,” because subsequent legislation

2

by Congress changed the landscape of immigration law and

3

alleviated the concerns that motivated the rule established in a

4

prior Ninth Circuit decision.

5

Several developments since Adams demonstrate that the bases
for its reasoning no longer apply, so that the case is not

7

controlling.

8

down laws criminalizing homosexuality, holding that social

9

disapproval of homosexuality on the basis of asserted tradition

10
United States District Court
For the Northern District of California

6

and mores is no longer accepted as sufficient justification for

11

laws burdening gay men and lesbians.

12

(adopting Justice Stevens’ dissenting opinion in Bowers v.

13

Hardwick, 478 U.S. 186, 216 (1986)).

14

held that “tradition alone is not a justification for taking away

15

a right that had already been granted, even though that grant was

16

in derogation of tradition.”

17

First, the Supreme Court in Lawrence v. Texas struck

539 U.S. 558, 577 (2003)

The Ninth Circuit recently

Perry, 671 F.3d at 1092.

Further, in 1990, Congress removed the mandatory provision in

18

the INA, upon which Adams relied, that barred gay and lesbian

19

individuals from receiving visas and gaining admission into the

20

United States.

21

101-649, 104 Stat. 4978 (amending 8 U.S.C. § 1182 to eliminate

Sec. 601, Immigration Act of 1990, Pub. L. No.

22
23
24
25
26
27
28
17

1

subsection (a)(4), which had excluded those “afflicted with a

2

psychopathic personality, sexual deviation, or a mental

3

defect.”).6

4

Moreover, in contrast to the state of the law in 1982, as

5

Adams recited it, now several states, as well as the District of

6

Columbia, offer legal recognition to same-sex couples in the form

7

of registered domestic partnership, civil marriage or a similar

8

designation.

9

Finally, Adams’ rationale that same-sex couples never produce

United States District Court
For the Northern District of California

10

children has been proven false: same-sex couples use various

11

methods to conceive and adopt children.

12

couples to have children is recognized in the Ninth Circuit.

13

Perry, 671 F.3d at 1086-87 (noting a long line of California cases

14

granting parental rights to gay and lesbian parents and that the

15

state’s “current policies and conduct recognize that gay

16

individuals are fully capable of responsibly caring for and

17

raising children.”) (alterations omitted).

18

Plaintiffs’ equal protection claims.

The ability of same-sex
See

Adams is not fatal to

19
20
21
22
23
24
25
26
27
28

6

Section 212(a)(4) of the INA of 1952 had excluded “[a]liens
afflicted with a psychopathic personality, epilepsy, or a mental
defect.” In 1965, Congress eliminated epilepsy and added “sexual
deviation.” Pub. L. No. 414, 66 Stat. 163, 182, amended by Act of
Oct. 3, 1965, Pub. L. No. 89-236, § 15(b), 79 Stat. 911, 919
(codified as amended at 8 U.S.C. § 1182(a)(4) (1988)). The entire
provision was eliminated by the Immigration Act of 1990, Pub. L.
No. 101-649, 104 Stat. 4978 (1990). See Shannon Minter, Sodomy
and Public Morality Offenses Under U.S. Immigration Law:
Penalizing Lesbian and Gay Identity, 26 Cornell Int’l L.J. 771,
775-83 (1993) (explaining the history of statutory provisions
barring gay men and lesbians from immigrating to the United
States).
18

1

Under the doctrine of equal protection, certain

2

classifications by statute or other government activity, such as

3

classifications based on race, have been found to be suspect.

4

Harris v. McRae, 448 U.S. 297, 322 (1980) (noting race as “the

5

principal example” of a “suspect” classification).

6

challenged law burdens a suspect class, courts apply strict

7

scrutiny to determine the constitutional validity of the

8

provision.

9

(1976).

Where a

See Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 312

Such laws are “presumptively invalid and can be upheld

United States District Court
For the Northern District of California

10

only upon an extraordinary justification.”

11

v. Feeney, 442 U.S. 256, 272 (1979).

12

level of scrutiny to certain quasi-suspect classifications, such

13

as those based upon sex, which “have traditionally been the

14

touchstone for pervasive and often subtle discrimination.”

15

273.

16

lower standard of review and need only “bear[] a rational

17

relationship to some legitimate end.”

18

Pers. Adm’r of Mass.

Courts apply an intermediate

Id. at

A law that does not burden a protected class is subject to a

Romer, 517 U.S. at 631.

The Ninth Circuit has held that gay men and lesbians do not

19

constitute a suspect or quasi-suspect class.

20

Def. Indus. Sec. Clearance Office, 895 F.2d 563, 574 (9th Cir.

21

1990).

22

rational basis standard applied in High Tech Gays, even after the

23

Supreme Court’s decisions in Romer, 517 U.S. at 620, and Lawrence,

24

539 U.S. at 577, which invalidated certain legislative enactments

25

burdening gay men and lesbians.

26

F.3d 1420, 1425 (9th Cir. 1997) (holding that High Tech Gays was

27

controlling and rejecting request by amici curiae to apply strict

28

scrutiny); Witt v. Dep’t of Air Force, 527 F.3d 806, 821 (9th Cir.

High Tech Gays v.

Ninth Circuit panels have continued to utilize the

See e.g., Philips v. Perry, 106

19

1

2008) (holding that because Lawrence declined to address equal

2

protection, it did not disturb Philips’ equal protection ruling

3

under the rational basis standard of review).

4

Perry, 671 F.3d at 1080 ns.13, 19, the Ninth Circuit stated that

5

it need not consider whether any form of heightened scrutiny was

6

necessary or appropriate with respect to the plaintiff same-sex

7

couples.

8

noted that High Tech Gays had held that heightened scrutiny did

9

not apply.

More recently, in

Perry applied rational basis review based on Romer and

Although the Ninth Circuit may revisit its ruling that

United States District Court
For the Northern District of California

10

gay men and lesbians do not constitute a suspect or quasi-suspect

11

class, the Court tests the constitutionality of § 3 of the DOMA

12

and § 7702B(f) of Title 26, pursuant to current Ninth Circuit law,

13

by applying rational basis review.

14

Under this standard of review, a law that imposes a

15

classification must be rationally related to the furtherance of a

16

legitimate state interest.

17

of review accords a strong presumption of validity to legislative

18

enactments.

19

entirely irrelevant for constitutional purposes whether the

20

conceived reason for the challenged distinction actually motivated

21

the legislature.”

22

Nevertheless, rational basis review is not “toothless.”

23

v. De Castro, 429 U.S. 181, 185 (1976).

24

equal protection case calling for the most deferential of

25

standards, [courts] insist on knowing the relation between the

26

classification adopted and the object to be attained.”

27

United States Office of Pers. Mgmt., 699 F. Supp. 2d 374, 387 (D.

28

Mass. 2010) (quoting Romer, 517 U.S. at 633).

Romer, 517 U.S. at 631.

This standard

Heller v. Doe, 509 U.S. 312, 319 (1993).

“[I]t is

FCC v. Beach Comm., 508 U.S. 307, 313 (1993).

20

Mathews

“[E]ven in the ordinary

Gill v.

1

In Romer, the Supreme Court held that gay men and lesbians,

2

as a class, are at least protected from burdensome legislation

3

that is the product of sheer anti-gay animus and devoid of any

4

legitimate government purpose.

5

Colorado’s anti-gay ballot measure “fails, indeed defies, even

6

this conventional inquiry” applied under the rational basis test).

7

In Perry, the Ninth Circuit applied Romer and found that

8

Proposition 8 was an enactment devoid of any rational relationship

9

to a legitimate state interest and was unconstitutionally tainted

517 U.S. at 632-35 (holding that

United States District Court
For the Northern District of California

10

by anti-gay animus.

11

applying the rational basis test, this Court considers the

12

evidence of anti-gay animus in the record of Congress’s

13

consideration of § 3 of the DOMA and § 7702B(f) of Title 26, along

14

with possible justifications for the provisions.

671 F.3d at 1086-95.

Accordingly, in

15

A.

Application of Rational Basis Test to Same-Sex Spouses’
Challenge to § 3 of the DOMA

16

Plaintiffs contend that § 3 of the DOMA impermissibly

17

excludes same-sex spouses from the federal definition of marriage

18

based on animus towards gay men and lesbians and their

19

relationships.

20

demonstrates that animus toward, and moral rejection of,

21

homosexuality and same-sex relationships are apparent in the

22

Congressional record.

23

legislative record is free of moral condemnation of gay men and

24

lesbians.

25

of the DOMA.

The legislative history described above

The BLAG does not argue that the

Rather, it asserts several rationales in defense of § 3

26
27
28
21

1
2

1.

An Act of Caution to Preserve the Status Quo

The BLAG asserts that § 3 of the DOMA is a legitimate act of

3

caution to protect the institution of traditional marriage.

4

argument is faulty for two reasons.

5

This

First, the preservation of marriage as an institution that

6

excludes gay men and lesbians for the sake of tradition is not a

7

legitimate governmental interest.

8

Circuit has disapproved “tradition” as a permissible policy goal

9

in eliminating rights previously extended to same-sex couples.

As discussed above, the Ninth

United States District Court
For the Northern District of California

10

Perry, 671 F.3d at 1092-93.

11

numerous established federal rights generally available to married

12

couples by precluding federal recognition of same-sex couples

13

legally married under state law.

14

jurisprudence, tradition is not a legally acceptable reason to

15

prohibit a practice that historically has been the subject of

16

social disapprobation.

17

Section 3 of the DOMA eliminated

Under equal protection

In Palmore v. Sidoti, 466 U.S. 429, 433 (1984), the Supreme

18

Court recognized that, while a child living with a stepparent of a

19

different race may experience “pressures and stresses” that would

20

not be present if the child were living with parents of the same

21

racial origin, under the doctrine of equal protection, “the

22

reality of private biases” is not a permissible consideration for

23

the removal of a child from the custody of his or her natural

24

parent.

25

reach of the law, but the law cannot, directly or indirectly, give

26

them effect.”

27
28

The Court stated, “Private biases may be outside the

Id.

Likewise, in the context of same-sex intimacy and
relationships, the Supreme Court has held that “the fact that the
22

1

governing majority in a State has traditionally viewed a

2

particular practice as immoral is not a sufficient reason for

3

upholding a law prohibiting the practice.”

4

577 (adopting Justice Stevens’ dissent in Bowers, 478 U.S. at

5

216).7

6

could save a law prohibiting miscegenation from constitutional

7

attack.”

8
9

Lawrence, 539 U.S. at

The Court observed that “neither history nor tradition

Id.

Furthermore, there is no principled distinction between antigay animus and a conception of civil marriage as an institution

United States District Court
For the Northern District of California

10

that cannot tolerate equally committed same-sex couples.

11

Perry, the Ninth Circuit rejected the contention that Proposition

12

8, eliminating the designation of civil marriage for same-sex

13

couples, but not the substantive rights associated with marriage,

14

was intended only to disapprove of same-sex marriage.

15

1093.

16

gays and lesbians are of lesser worth as a class--that they enjoy

17

a lesser societal status.”

18

Lawrence discussed the “stigma” generated by laws criminalizing

In

671 F.3d at

Rather, the elimination of the right sent “a message that

Id.

Similarly, the Supreme Court in

19
20
21
22
23
24
25
26
27
28

7

Although the majority in Lawrence invalidated state laws
criminalizing sodomy on substantive due process grounds, and did
not rely on equal protection arguments pertaining to gays and
lesbians as a class, the Ninth Circuit in Perry cited the decision
in its equal protection ruling. 671 F.3d at 1092-93. Perry
reasoned that “laws affecting gays and lesbians’ rights often
regulate individual conduct--what sexual activity people may
undertake in the privacy of their own homes, or who is permitted
to marry whom” and, thus, such laws regulate status as much as
they regulate conduct. Id. at 1093 (citing Christian Legal Soc’y
v. Martinez, ___ U.S. ___, 130 S. Ct. 2971, 2990 (2010) (declining
“to distinguish between status and conduct” in the context of
sexual orientation)). Accordingly, Perry found Lawrence relevant
to its equal protection analysis.
23

homosexual conduct and stated that such laws are “an invitation to

2

subject homosexual persons to discrimination both in the public

3

and in the private spheres.”

4

civil marriage may only sanction a union between a man and a woman

5

posits that there is something inherently objectionable about

6

homosexuality or that same-sex intimate relationships are

7

irreconcilable with the core characteristics of marriage.

8

Singling out same-sex spouses for exclusion from the federal

9

definition of marriage amounts to a bare expression of animus on

10
United States District Court
For the Northern District of California

1

the basis of sexual orientation and, under Romer, this rationale

11

does not satisfy rational basis review.

539 U.S. at 575.

The notion that

12

Nor was § 3 of the DOMA a cautious legislative step.

13

measure established an across-the-board federal definition of

14

marriage limiting it to heterosexual couples, and preempting any

15

opportunity to test the impact of state laws evolving to recognize

16

same-sex marriage.

17

1,138 federal statutory provisions in which marital status is a

18

factor in determining “benefits, rights, and privileges.”

19

Accounting Office, Defense of Marriage Act: Update to Prior

20

Report, GAO-04-353R, at 1 (January 23, 2004),

21

www.gao.gov/new.items/d04353r.pdf.

22

enacted before any state granted marriage licenses to same-sex

23

couples, Congress foreclosed the recognition of same-sex spouses

24

for any purpose under a sweeping range of federal provisions.

25

The

The General Accounting Office has identified

General

Through a single federal law,

In Perry, the Ninth Circuit found that Proposition 8 was not

26

plausibly a measure of caution for it erected a barrier to

27

incremental policy-making and did not include a means of careful

28

consideration, such as a time-specific moratorium on same-sex
24

marriage.

2

to state law in the area of domestic relations, the BLAG’s

3

rationale that the provision was a cautionary measure is not

4

plausible.

5

(“The passage of DOMA marks a stark departure from tradition and a

6

blatant disregard of the well-accepted concept of federalism in

7

the area of domestic relations.”), appeals docketed, Nos. 12-15388

8

and 12-15409 (9th Cir.); Gill, 699 F. Supp. 2d at 392 (finding

9

that DOMA “mark[ed] the first time the federal government has ever

10
United States District Court
For the Northern District of California

1

attempted to legislatively mandate a uniform federal definition of

11

marriage--or any other core concept of domestic relations, for

12

that matter”).

13

from allowing non-traditional, same-sex marriages and, thus, it

14

created a new schism between state and federal domestic relations

15

law.

16

Given the federal government’s long-standing deference

671 F.3d at 1090; see Golinski, 2012 WL 569685 at *24

Section 3 of the DOMA did not prevent the states

In sum, Congress’s hypothesized desire to exercise caution by

17

preserving the traditional definition of marriage is not a

18

legitimate justification; § 3 of the DOMA marked a significant

19

departure from federal deference to the states’ authority in

20

defining marriage.

21
22

2.

Protecting the Public Fisc

The BLAG further argues that § 3 of the DOMA is justified as

23

an enactment designed to conserve scarce government resources.

24

The effectiveness of § 3 of the DOMA as a cost-saving measure is a

25

subject of debate.

26

Congressional Budget Office has opined that federal recognition of

27

same-sex marriage would result in a net benefit to the federal

28

treasury.

For example, as the BLAG has recognized, the

BLAG’s Cross Mot. Summ. J. at 21 n.6 (citing Douglas
25

1

Holtz-Eakin, The Potential Budgetary Impact of Recognizing Same-

2

Sex Marriage, at 1, June 21, 2004).8

3

cost-savings as a conceivable policy goal, groups selected to bear

4

the burden of legislative enactments to save money must be

5

rationally, not arbitrarily, chosen.

6

*22 n.8 (citing Plyler v. Doe, 457 U.S. 202, 227, 229 (1982)).

7

However, even crediting

Golinksi, 2012 WL 569685 at

Diaz v. Brewer, 656 F.3d 1008, 1015 (9th Cir. 2011), reh’g en

8

banc denied, is also instructive.

9

affirmed a district court’s preliminary injunction barring

There, the Ninth Circuit

United States District Court
For the Northern District of California

10

enforcement of a state provision eliminating health insurance

11

benefits for registered domestic partners of Arizona state

12

employees.

13

domestic partners, whether they were same-sex or heterosexual.

14

rejecting the state’s rationales of cost-savings and reducing

15

administrative burdens, the court observed that the savings

16

depended upon a distinction between same-sex and similarly

17

situated heterosexual couples, because the heterosexual couples

18

could preserve their benefits by marrying, whereas same-sex

19

couples were barred from marriage by Arizona constitutional law.

20

Citing Eisenstadt v. Baird, 405 U.S. 438 (1972), the court held

21

that a provision to save funds based on such a distinction could

22

not survive rational basis review because it amounted to the

23

“selective application of legislation to a small group.”

24

1014.

In Arizona, couples were permitted to register as
In

Id. at

25
26
8

27
28

This report is available at
http://www.cbo.gov/sites/default/files/cbofiles/ftpdocs/55xx/doc55
59/06-21-samesexmarriage.pdf.
26

1
2
3
4

The desire to save money is not sufficient to justify § 3 of
the DOMA.
3.

Establishing Uniformity

According to the BLAG, § 3 of the DOMA promotes uniformity in

5

eligibility for federal benefits.

6

has accepted variations and inconsistencies in state marriage laws

7

by recognizing for federal purposes any heterosexual marriage that

8

is valid under state law.

9

v. Comm’r of Internal Revenue, 70 T.C. 361, 366 (1978)

However, the federal government

Gill, 699 F. Supp. at 391 (citing Dunn

United States District Court
For the Northern District of California

10

(“recognizing that whether an individual is ‘married’ is, for

11

purposes of the tax laws, to be determined by the law of the State

12

of the marital domicile”); 5 C.F.R. § 843.102 (defining “spouse”

13

for purposes of federal employee benefits by reference to state

14

law); 42 U.S.C. § 416(h)(1)(A)(i) (defining an “applicant” for

15

purposes of Social Security survivor and death benefits as “the

16

wife, husband, widow or widower” of an insured person “if the

17

courts of the State” of the deceased’s domicile “would find such

18

an applicant and such insured individual were validly married”);

19

20 C.F.R. § 404.345 (“If you and the insured were validly married

20

under State law at the time you apply for . . . [social security]

21

benefits, the relationship requirement will be met.”); 38 U.S.C.

22

§ 103(c) (veterans’ benefits); 20 C.F.R. § 10.415 (workers’

23

compensation); 45 C.F.R. § 237.50(b)(3) (public assistance); 29

24

C.F.R. §§ 825.122 and 825.800 (Family Medical Leave Act); 20

25

C.F.R. §§ 219.30 and 222.11 (benefits under the Railroad

26

Retirement Act)).

27

of certain marriages because they involve same-sex couples cannot

28

be justified as promoting uniformity where federal law otherwise

An enactment that precludes federal recognition

27

1

accepts wide variation in state marriage law.

2

DOMA, Congress acknowledged the long-standing disposition of the

3

federal government to accept state definitions of civil marriage.

4

HR. Rep. 104-664 at 2 (“The determination of who may marry in the

5

United States is uniquely a function of state law.”).

6

§ 3 of the DOMA undermines uniform recognition of marriage, by

7

requiring federal agencies to discern which state law marriages

8

are acceptable for federal recognition and which are not.9
4.

9

United States District Court
For the Northern District of California

10

In considering the

Instead,

Encouraging Responsible Procreation and Preserving
the Social Link Between Marriage and Children

The BLAG asserts that Congress could rationally have enacted

11

§ 3 of the DOMA to encourage marriage for heterosexual couples

12

who, unlike same-sex couples, are generally at risk of

13

accidentally conceiving children outside of marriage.

14

contends that the provision serves to incentivize the creation,

15

stability, and closeness of heterosexual marriage, or the raising

16

of children in that marital context, while declining to extend

17

similar incentives to other relationships.

18

The BLAG

Here, the relationship between § 3 of the DOMA and the policy

19

goal of steering child-bearing into the context of heterosexual

20

marriage is too attenuated to be credited as a plausible rationale

21
22
23
24
25
26
27
28

9

The BLAG argues that Congress has approved numerous
provisions in the areas of taxation, Social Security, immigration
and federal benefits that define marriage for purposes of federal
law. However, these provisions do not purport to establish a
federal definition of marriage, but instead impose additional
requirements to further the legislative goals of the provisions,
while accepting the state definitions of marriage. Golinski, 2012
WL 569685 at *25 n.10 (citing 42 U.S.C. § 416 (requiring marriage
of at least one year to obtain certain Social Security benefits);
8 U.S.C. § 1186a(b)(1) (discrediting sham marriages for purposes
of immigration)).
28

1

for the law.

2

heterosexual couples.

3

long been understood as a relationship between a man and a woman.

4

Section 3 of the DOMA enacted an express exclusion, barring

5

federal recognition of same-sex marriages under state law.

6

is no reasonable basis to believe that heterosexual couples are

7

more inclined to marry and have children or to enter into a

8

marriage after accidentally conceiving a child, due to this

9

limiting federal definition enacted in 1996.10

The law carries no incentivizing effect for
The BLAG acknowledges that marriage has

There

Golinski, 2012 WL

United States District Court
For the Northern District of California

10

569685 *23 (“Denying federal benefits to same-sex married couples

11

has no rational effect on the procreation practices of opposite-

12

sex married (or unmarried) couples.”).

13

U.S. at 605 (Scalia, J., dissenting) (observing, “what

14

justification could there possibly be for denying the benefits of

See also Lawrence, 539

15
10

16
17
18
19
20
21
22
23
24
25
26
27
28

The BLAG’s reliance on Johnson v. Robison, 415 U.S. 361
(1974), is not persuasive. There the Supreme Court upheld,
against an equal protection challenge, a provision that granted
educational benefits to drafted individuals who performed military
service, but withheld such benefits from drafted religious,
conscientious objectors who performed mandatory civilian service
as an alternative to military service. Id. at 382-83. The Court
determined that the educational benefits made military service
more “palatable” and deterred drafted servicemen from skirting
their duties, whereas individuals with deeply held religious
convictions against military service would not be drawn to serve
through the availability of educational benefits. Here, § 3 of
the DOMA impacts an expansive body of laws that touch upon marital
status. These laws concern diverse benefits, privileges,
responsibilities and obligations which, collectively, are not
readily analogous to the simple educational benefit present in
Johnson. Thus, the incentivizing effect in Johnson does not apply
here. Nor are same-sex couples like the conscientious objectors,
because they are seeking to join the institution of marriage or
have their existing marriages or legal relationships recognized by
the federal government and they desire to assume the attending
benefits and responsibilities. Johnson is inapposite.
29

1

marriage to homosexual couples . . . [s]urely not the

2

encouragement of procreation, since the sterile and the elderly

3

are allowed to marry”) and Perry, 671 F.3d at 1088 (“There is no

4

rational reason to think that taking away the designation of

5

‘marriage’ from same-sex couples would advance the goal of

6

encouraging California’s opposite-sex couples to procreate more

7

responsibly.”).

8

The BLAG also argues that § 3 of the DOMA could have been

9

passed to preserve the social link between marriage and child-

United States District Court
For the Northern District of California

10

rearing.

11

concluded that expanding the definition of marriage could weaken

12

society’s view that the central purpose of marriage is to raise

13

children and could contribute to the number of children born

14

outside of marriage.

15

noted earlier, child-rearing is not the core attribute of

16

marriage, and there is no reasonable connection between the

17

exclusion of same-sex spouses from the federal definition of

18

marriage and minimizing the number of children born outside of

19

wedlock.

20

The BLAG contends that Congress could have reasonably

This rationale is not plausible because, as

The provision did not extend new marital rights and

21

privileges to heterosexual couples.

22

application of existing federal rights to married same-sex couples

23

to whom such privileges could have otherwise been accorded.

24

the law did not establish an incentive for heterosexual couples to

25

marry; they were able to do so and enjoy federal recognition,

26

prior to the enactment of the DOMA.

27
28

Rather, it blocked the

Thus,

There is no reasonable relationship between § 3 of the DOMA
and the policy goal of encouraging heterosexual couples to
30

1

procreate while married or enter into marriage if they

2

accidentally conceive a child.

3

relationship to this policy goal, the Court need not resolve

4

whether fostering child-rearing by heterosexual, rather than same-

5

sex couples, serves a legitimate governmental interest.

6
7

Because there is no rational

5. Summary
In sum, the legislative record contains evidence of anti-gay

8

animus and the BLAG has failed to establish that § 3 of the DOMA

9

is rationally related to a legitimate government interest.

United States District Court
For the Northern District of California

10

Accordingly, Plaintiff same-sex spouses are entitled to summary

11

judgment that § 3 of the DOMA is invalid under the Constitution’s

12

equal protection principles to the extent that the law blocks

13

their access to the CalPERS long-term care plan.

14

B.

Registered Domestic Partners’ Challenge to § 3 of the
DOMA

15

Plaintiffs assert that the restrictive definition of “spouse”

16

in § 3 of the DOMA precludes registered domestic partners from

17

enrollment in the CalPERS long-term care plan, contravening their

18

rights to equal protection under federal law and their entitlement

19

to all of the rights, privileges, and obligations of marriage

20

under California law.

21

the DOMA, Plaintiffs Dominguez and Hermosillo, who are registered

22

domestic partners, but not married under California law, would be

23

deemed “spouses” under state law for purposes of Hermosillo’s

24

enrollment in CalPERS’ long-term care program.

25

Plaintiffs contend that, if not for § 3 of

State Defendants do not say that § 3 of the DOMA, in

26

particular, precludes California registered domestic partners from

27

enrolling in the CalPERS long-term care plan.

28
31

Rather, they

1

represent that they would “admit same-sex spouses and domestic

2

partners to [the CalPERS long-term care plan] but for federal

3

law.”

4

domestic partners in the plan would jeopardize the plan’s status

5

as a qualified state long-term care plan under § 7702B(f)(2).

6

State Defendants contend that enrollment of Plaintiff

Federal Defendants dispute Plaintiffs’ contention that, but

7

for § 3 of the DOMA, California registered domestic partners would

8

necessarily be treated as spouses under the federal tax code.

9

Fed. Defs.’ Cross Mot. Summ. J. 2, 20-21 and Reply 1.

The Court

United States District Court
For the Northern District of California

10

notes that § 3 of the DOMA does not expressly address registered

11

domestic partners and it is clear that § 7702B(f) omits domestic

12

partners.

13

Plaintiffs have not demonstrated that § 3 of the DOMA blocks

14

CalPERS from enrolling California domestic partners in its long-

15

term care plan.

16

the DOMA were invalidated, but § 7702B(f) were upheld, California

17

registered domestic partners, who are legally entitled to be

18

treated as spouses under California law, would be permitted to

19

enroll in the CalPERS long-term care plan, without triggering

20

disqualification of the plan for favorable tax treatment under

21

§ 7702B(f).

22

advisory opinion, which would be improper.

23

Healthy Cal. v. F.C.C., 87 F.3d 383, 386 (9th Cir. 1996) (citing

24

Flast v. Cohen, 392 U.S. 83, 96 (1968), for the proposition that

25

federal courts are not authorized to issue advisory opinions).

26

Accordingly, the Court finds moot Plaintiffs’ claim that the equal

27

protection rights of California registered domestic partners have

28

been infringed by § 3 of the DOMA.

Plaintiffs contend hypothetically that if § 3 of

In effect, Plaintiffs ask the Court to issue an

32

See Coal. for a

1

C.

Application of Rational Basis Test to Registered
Domestic Partners’ Challenge to § 7702B(f)

2

In addition to challenging § 3 of the DOMA, Plaintiffs claim

3

that § 7702B(f) infringes the equal protection rights of

4

California same-sex registered domestic partners by excluding them

5

from enrollment in qualified state-maintained long-term care

6

plans.

7

not include registered domestic partners in the list of relatives

8

eligible to enroll in state-maintained long-term care plans.

9

list of eligible participants incorporates all relatives

As explained above, subparagraph (C) of § 7702B(f)(2) does

The

United States District Court
For the Northern District of California

10

qualifying for a dependency exemption under 26 U.S.C. § 152(d)(2)

11

except for those individuals who are eligible because they are

12

members of the same household as the taxpayer.

13

incorporated subparagraph (H) of § 152(d)(2), in the list of

14

individuals eligible under § 7702B(f), CalPERS would have been

15

authorized to enroll the registered domestic partners of

16

California public employees in its long-term care plan.

17

Federal Defendants oppose Plaintiffs’ challenge to

Had Congress

18

§ 7702B(f), arguing, first, that registered domestic partners do

19

not constitute a quasi-suspect or suspect class.

20

discussed above in connection with the non-suspect class status of

21

gay men and lesbians, the Court cannot conclude that domestic

22

partners constitute such a class.

23

laws excluding registered domestic partners use that status as a

24

proxy for homosexuality, gay men and lesbians still do not

25

constitute a suspect or quasi-suspect class under current Ninth

26

Circuit precedent.

27
28

For the reasons

Although, as explained below,

Federal Defendants contend that the exclusion of registered
domestic partners from § 7702B(f) does not amount to a
33

1

classification based on sexual orientation because many states

2

permit heterosexual couples to register as domestic partners.

3

Court previously rejected this argument, reasoning that same-sex

4

couples are relegated to domestic partnership because they are

5

barred from civil marriage by California law.11

6

Order at 16.

7

domestic partnerships, while precluding them from marriage, turn

8

on sexual orientation, and the availability of registered domestic

9

partnership to different-sex couples does not negate the burdens

United States District Court
For the Northern District of California

10
11

The

January 26, 2012

Laws limiting same-sex couples to registered

faced by same-sex registered domestic partners.
The Court’s prior ruling relied on the Ninth Circuit’s

12

decision in Diaz.

13

considered a challenge to a state law provision that eliminated

14

health care insurance benefits for the registered domestic

15

partners of Arizona public employees.

16

heterosexual couples, as well as same-sex couples, to register as

17

domestic partners.

18

partners were also affected by the restriction, the court found

19

that the law was tainted by a bare desire to harm same-sex couples

20

because, unlike heterosexual couples, they could not marry under

21

Arizona law.

22
23

There, as noted above, the Ninth Circuit

Arizona law allows

Although heterosexual registered domestic

656 F.3d at 1014-1015.

Federal Defendants argue that Diaz is inapposite because the
case concerned the withdrawal of an existing benefit that an

24
25
26
27
28

11

Only five to six percent of registered domestic partners in
California are different-sex partners. At least one partner must
be sixty-two years old or older to register, limiting the eligible
pool. Declaration of Claudia Center, Ex. M, Gary J. Gates, M.V.
Lee Badgett, Deborah Ho, Marriage, Registration and Dissolution by
Same-Sex Couples in the United States, at 14 (July 1, 2009).
34

1

unpopular group had previously enjoyed.

2

the crux of the Ninth Circuit’s reasoning.

3

that “when a state chooses to provide such benefits, it may not do

4

so in an arbitrary or discriminatory manner that adversely affects

5

particular groups that may be unpopular.”

6

U.S. Dep’t. of Agric. v. Moreno, 413 U.S. 528, 534-35 (1973)).

7

This, however, was not
The court explained

Id. at 1013 (citing

Federal Defendants also argue that § 7702B(f) is neutral as

8

to sexual orientation because other relatives, such as cousins,

9

and individuals who share a close, family-like relationship are

United States District Court
For the Northern District of California

10

omitted from the list of eligible relatives.

11

relevant comparison is between § 7702B(f)’s treatment of domestic

12

partners and its treatment of spouses because domestic partners

13

are more comparable to spouses than to distant relatives, such as

14

cousins.

15

quasi-marital status, such as when Representative Istook referred

16

to domestic partnership as the “equivalent to gay marriage,” 1993

17

WL 236117, at *H4355, and Representative Stearns asserted that the

18

District of Columbia domestic partnership registry was intended to

19

give same-sex couples the legal and social benefits associated

20

with marriage, 1995 WL 639923, at *H11659.

21

are also affected does not undercut the Court’s finding that

22

§ 7702B(f)’s exclusion of registered domestic partners is a

23

classification based on sexual orientation.

24

at 275 (“If the impact of this statute could not be plausibly

25

explained on a neutral ground, impact itself would signal that the

26

real classification made by the law was in fact not neutral.”).

27
28

However, the

Congress viewed registered domestic partnership as a

The fact that cousins

See Feeney, 442 U.S.

Therefore, in applying rational basis review to Plaintiffs’
equal protection challenge to § 7702B(f), as with § 3 of the DOMA,
35

the Court considers evidence of anti-gay animus and the existence

2

of any other rational basis for § 7702B(f)’s exclusion of

3

registered domestic partners.

4

history illuminating the reasons that Congress limited the

5

eligible relatives contained in subparagraph (C).

6

no direct evidence of either animus or a benign purpose in the

7

record pertaining to § 7702B(f).

8

Congress’s views regarding legal recognition of registered

9

domestic partnerships, recorded at the same time as it considered

10
United States District Court
For the Northern District of California

1

and approved § 7702B(f), is relevant to the Court’s determination.

11

In Arlington Heights v. Metropolitan Housing Development

12

Corporation, 429 U.S. 252, 267 (1977), the Supreme Court

13

explained, “The historical background of the decision is one

14

evidentiary source, particularly if it reveals a series of

15

official actions taken for invidious purposes . . . The specific

16

sequence of events leading up to the challenged decision may also

17

shed some light on the decisionmaker’s purposes.”

18

beyond the legislative record directly pertaining to § 7702B(f)

19

are relevant to discern Congress’s intent.

20

history of provisions that Congress considered contemporaneously

21

with the passage of § 7702B(f) is relevant.

22

Neither party points to legislative

Thus, there is

However, information about

Thus, facts

The legislative

Plaintiffs point to Congress’s contemporaneous consideration

23

of § 3 of the DOMA and its obvious animosity towards same-sex

24

couples in those proceedings, as well as its ban on funding of the

25

District of Columbia’s domestic partnership registry, as indirect

26

evidence that this animus was the reason for its exclusion of a

27

provision applicable to registered domestic partners from the list

28

of eligible relatives under subparagraph (C) of § 7702B(f).
36

The

1

DOMA and § 7702B(f) were enacted in the same legislative session,

2

within a month of each other.

3

funding of the District of Columbia’s domestic partnership

4

registry for years.

5

of localities and entities across the country had recognized and

6

protected same-sex couples by offering registered domestic

7

partnerships, it limited the federal definition of marriage to

8

heterosexual married couples.

9

registered domestic partnerships was a consideration in approving

Congress had been banning the

In 1996, Congress not only knew that a number

Thwarting federal recognition of

United States District Court
For the Northern District of California

10

§ 3 of the DOMA’s limiting definition of marriage.

11

reflecting animus towards gay men and lesbians in these contexts

12

are relevant to show anti-gay animus in connection with

13

§ 7702B(f)’s exclusion of registered domestic partners.

14

infers that Congress acted on anti-gay animus in refusing to

15

include registered domestic partners in the list of relatives

16

eligible to enroll in state-maintained long term care plans.

17

The statements

The Court

In addition to pointing out evidence of anti-gay animus in

18

the legislative record, Plaintiffs have refuted the existence of

19

any rational basis for § 7702B(f)’s exclusion of registered

20

domestic partners.

21

Federal Defendants argue that the exclusion of registered

22

domestic partners from § 7702B(f) was rational because, in 1996,

23

no state recognized such relationships.

24

Congress was actually aware of, and thwarted, the District of

25

Columbia’s domestic partnership registry.

26

of domestic partnership registries established in various other

27

jurisdictions.

As noted earlier,

Congress was informed

Accordingly, Federal Defendants’ asserted

28
37

1

rationale that the exclusion was reasonable because registered

2

domestic partnership was a novel legal status cannot be credited.

3

Next, Federal Defendants contend that it was not irrational

4

to exclude registered domestic partners from qualified state long-

5

term care plans because, in 1996, no state treated registered

6

domestic partners as spouses for state law purposes.

7

Defendants point out that California extended to registered

8

domestic partners the full range of spousal rights and

9

responsibilities available under state law only after a 2003

Federal

United States District Court
For the Northern District of California

10

legislative enactment.

11

because treating registered domestic partners as eligible for

12

enrollment in a state-maintained, long-term care plan does not

13

entail extending to registered domestic partners all rights and

14

responsibilities attached to marriage under a given state’s law.

15

Federal Defendants also argue that Congress reasonably

16

decided that the category of household members described in

17

§ 152(d)(2)(H) was not a suitable basis to determine eligibility

18

for inclusion in a state long-term care plan because such

19

relationships may change from year to year.

20

however, cannot be credited because the eligibility of spouses,

21

step-relatives and relatives-in-law, which depends on the

22

existence of a marital relationship, may likewise change between

23

one year and the next.

24

This argument, however, is not persuasive

This justification,

Federal Defendants further contend that the exclusion of

25

registered domestic partners simplifies for state officials

26

administering long-term care plans the task of verifying

27

eligibility.

28

relationships of distant relatives who are eligible for long-term

This rationale is not plausible because the

38

1

care coverage through state-maintained plans are likely at least

2

as difficult to verify as the residence of individuals who live in

3

the same household as the taxpayer for the taxable year.

4

the exclusion of subparagraph (H) does not rationally relate to

5

efforts to ease administration of state-maintained long-term care

6

plans.

7

provision that limited eligibility for food stamps to households

8

comprising “related” rather than “non-related” individuals was not

9

rationally connected to efforts to curb abuse of the program.

Thus,

In Moreno, 413 U.S. at 537-38, the Court held that a

In

United States District Court
For the Northern District of California

10

addition, the Ninth Circuit in Diaz recently rejected the argument

11

that a state law eliminating health care benefits for domestic

12

partners served the interest of easing administrative burdens

13

where the challenged law amounted to a “selective” burden on a

14

small group of individuals.

15

656 F.3d at 1014.

Finally, Federal Defendants assert that Congress reasonably

16

could have assumed that there would not be any significant

17

disparity between qualified state long-term care plans and private

18

§ 7702B plans, so that domestic partners of state employees would

19

not be discouraged from purchasing long-term care coverage simply

20

because they are ineligible for state-maintained long-term care

21

coverage.

22

household members under subparagraph (H) from the list of

23

relatives eligible for state-maintained plans.

24

of long-term care coverage, with tax benefits, for purchase on the

25

private market does not explain this federally mandated exclusion

26

from state plans.

This does not amount to a rationale for excluding

The availability

27

Section 7702B(f) is actually inconsistent with Congress’s

28

expressed policy goal of encouraging the purchase of long-term
39

1

care coverage generally.

2

tax treatment to private plans was consistent with its policy

3

goal.

4

penalty, namely disqualification of state-maintained plans from

5

favorable federal tax treatment, if they extended long-term care

6

coverage to household members and relatives beyond the list of

7

individuals sanctioned by Congress.

8
9

United States District Court
For the Northern District of California

10

Congress’s broad extension of favorable

However, Congress imposed, pursuant to § 7702B(f), a

Thus, none of the explanations put forth by Federal
Defendants satisfies the rational basis test.
Because Congress’s restriction on state-maintained long-term

11

care plans lacks any rational relationship to a legitimate

12

government interest, but rather appears to be motivated by anti-

13

gay animus, the exclusion of registered domestic partners of

14

public employees from § 7702B(f)’s list of individuals eligible to

15

enroll in state-maintained long-term care plans violates the

16

Constitution’s equal protection guarantee.

17

V. Substantive Due Process

18

The Court need not address Plaintiffs’ substantive due

19

process challenge to the disputed provisions because Plaintiffs

20

prevail on their motion for summary judgment with respect to their

21

equal protection challenge.

22

protection challenge redresses their injuries by invalidating

23

federal law thwarting their enrollment in the CalPERS long-term

24

care plan and, thus, their substantive due process attack is moot.

25

CONCLUSION

26

Plaintiffs’ meritorious equal

The Court finds that § 3 of the DOMA violates the equal

27

protection rights of Plaintiff same-sex spouses, and

28

subparagraph (C) of § 7702B(f) violates the equal protection
40

1

rights of Plaintiff registered domestic partners.

2

provisions are constitutionally invalid to the extent that they

3

exclude Plaintiff same-sex spouses and registered domestic

4

partners from enrollment in the CalPERS long-term care plan.

5

Thus, Plaintiffs’ motion for summary judgment is granted with

6

respect to their equal protection claims and the BLAG’s and

7

Federal Defendants’ cross-motions for summary judgment that § 3 of

8

the DOMA and § 7702B(f) of Title 26 are constitutional are denied.

9

Therefore, both

Accordingly, the Court permanently enjoins State Defendants,

United States District Court
For the Northern District of California

10

and those acting at their direction or on their behalf, from

11

denying Plaintiff class members enrollment in the CalPERS long-

12

term care plan on the basis of § 3 of the DOMA or § 7702B(f)’s

13

exclusion of same-sex spouses and registered domestic partners,

14

respectively.

15

the CalPERS long-term care plan under § 7702B(f) based on State

16

Defendants’ compliance with the terms of this injunction.

17

on State Defendants’ compliance with this order will be granted,

18

if a timely appeal is filed.

19
20
21

Federal Defendants are enjoined from disqualifying

A stay

The Clerk is directed to enter judgment in favor of the
Plaintiff class and against Defendants and Intervenors.
In their Prayer for Relief, Plaintiffs indicated their intent

22

to seek attorneys’ fees and costs.

23

making such a request.

24

IT IS SO ORDERED.

They may submit a motion

25
26
27

Dated: 5/24/2012

CLAUDIA WILKEN
United States District Judge

28
41