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

Filing 124


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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 5 6 7 8 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 10 11 12 13 14 15 16 17 18 19 20 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. ________________________________/ 21 Plaintiffs challenge the constitutionality of § 3 of the 22 Defense of Marriage Act (DOMA), 1 U.S.C. § 7, and § 7702B(f) of 23 the Internal Revenue Code, 26 U.S.C. § 7702B(f), to the extent 24 that these statutes limit Plaintiffs’ participation in a long-term 25 care insurance program maintained by the California Public 26 Employees’ Retirement System (CalPERS). Plaintiffs contend that 27 these federal provisions violate the Constitution’s guarantees of 28 1 equal protection and substantive due process by barring the same- 2 sex legal spouses and registered domestic partners of California 3 public employees from enrollment in the CalPERS long-term care 4 plan, even though opposite-sex legal spouses are permitted to 5 enroll. 6 Plaintiffs move for summary judgment on their claims against 7 all Defendants. 8 partially supporting Plaintiffs’ motion for summary judgment. 9 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 11 equal protection rights. 12 Plaintiffs’ motion and cross-move for summary judgment as to 13 Plaintiffs’ equal protection claim challenging § 3 of the DOMA on 14 behalf of same-sex couples who are registered domestic partners 15 under California law, and as to Plaintiffs’ substantive due 16 process challenge to § 3 of the DOMA. 17 cross-move for judgment that Title 26 U.S.C. § 7702B(f) is 18 constitutionally valid. 19 However, Federal Defendants oppose Federal Defendants also Because Federal Defendants would not defend the validity of 20 § 3 of the DOMA against the equal protection challenge by same-sex 21 spouses, the Court granted the Bipartisan Legal Advisory Group of 22 the United States House of Representatives (BLAG) leave to 23 intervene to defend the law. 24 Plaintiffs’ motion for summary judgment that § 3 of the DOMA is 25 unconstitutional as it affects same-sex spouses here, and has 26 cross-moved for summary adjudication that the provision is 27 constitutional. Accordingly, the BLAG has opposed 28 2 1 State Defendants have filed a response to Plaintiffs’ motion, 2 seeking guidance from the Court and a stay of any federal action 3 disqualifying the CalPERS program, in the event that the Court 4 grants Plaintiffs’ motion for summary judgment.1 5 Having considered all of the parties’ submissions and oral 6 argument, the Court grants Plaintiffs’ motion for summary judgment 7 and denies Federal Defendants’ and the BLAG’s cross-motions. 8 9 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 11 spouses and registered domestic partners, who are in long-term 12 committed relationships recognized and protected under California 13 law. 14 provides retirement and health benefits, including long-term care 15 insurance, to many of the state’s public employees and retirees 16 and their families. 17 when a person needs assistance with basic activities of living due 18 to injury, old age, or severe impairments related to chronic 19 illnesses, such as Alzheimer’s disease. As explained in this Court’s previous orders, CalPERS Long-term care insurance provides coverage 20 In 1996, Congress passed the DOMA, which, among other things, 21 defined the terms “spouse” and “marriage” for federal law purposes 22 in a manner limiting them to heterosexual couples. 23 § 3 of the DOMA, the United States Code provides, As amended by 24 25 26 27 28 1 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 1 2 3 4 5 6 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 8 (HIPAA), providing favorable federal tax treatment to participants 9 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). 13 26 U.S.C. § 7702B(f). Currently, the CalPERS Section 7702B(f)(2) disqualifies a state-maintained plan from 14 favorable tax treatment if it provides coverage to individuals 15 other than those specified under its subparagraph (C). 16 of eligible individuals in § 7702B(f)(2)(C) includes state 17 employees and former employees, their spouses, and individuals 18 bearing a relationship to the employees or spouses which is 19 described in subparagraphs (A) through (G) of 26 U.S.C. 20 § 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 23 relatives for whom a taxpayer may claim a dependent exemption. 24 See 26 U.S.C. §§ 151-52. 25 through (H), identifies the following individuals as “qualifying 26 relatives” for the dependent exemption: 27 (A) Section 152(d)(2), subparagraphs (A) A child or a descendant of a child. 28 4 1 (B) A brother, sister, stepbrother, or stepsister. 2 (C) The father or mother, or an ancestor of either. 3 (D) A stepfather or stepmother. 4 (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. 5 6 7 8 9 United States District Court For the Northern District of California 10 11 12 13 26 U.S.C. § 152(d)(2). When it chose to incorporate subparagraphs (A) through (G), 14 Congress specifically chose not to carry over subparagraph (H) to 15 subparagraph (C) of § 7702B(f)(2). 16 exclude subparagraph (H) from subparagraph (C) of § 7702B(f)(2), 17 registered domestic partners of California public employees would 18 have qualified as individuals eligible to enroll in the CalPERS 19 long-term care plan. 20 Had Congress not chosen to In addition to providing favorable tax treatment to state- 21 maintained long-term care plans, Congress approved such treatment 22 for long-term care coverage purchased through the private market. 23 26 U.S.C. § 7702B(a)-(b). 24 Congress enacted these provisions because of the critical 25 role of long term care insurance in protecting families. 26 legislation . . . provides tax deductibility for long term care 27 insurance, making it possible for more Americans to avoid 28 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 4 Scheduled for a Public Hearing Before the Senate Committee on 5 Finance on March 27, 2001,” at 2001 WL 36044116 (provisions 6 granting tax advantages for long-term care plans were adopted “to 7 provide an incentive for individuals to take financial 8 responsibility for their long-term care needs.”). 9 II. United States District Court For the Northern District of California 10 Congressional Denial of Federal Legal Recognition for SameSex Couples For more than two decades, jurisdictions other than the 11 federal government have extended to same-sex couples legal 12 recognition in various forms, such as registered domestic 13 partnerships, civil unions, reciprocal beneficiary relationships 14 and, more recently, civil marriage.2 Over time, the number of 15 2 16 17 18 19 20 21 22 23 24 25 26 27 28 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 1 jurisdictions granting these forms of legal recognition has 2 increased. 3 Congress discussed registered domestic partnership laws prior 4 to and during 1996, when the statutes challenged here were passed. 5 These discussions occurred after the District of Columbia passed, 6 in April 1992, the Health Care Benefits Expansion Act, which 7 established a domestic partnership registry in that jurisdiction. 8 Congress reacted to the new law by barring any local or federal 9 funding to implement, enforce or administer the registry. United States District Court For the Northern District of California 10 District of Columbia Appropriations Act, 1993, Pub. L. No. 102- 11 382, 106 Stat. 1422 (1992). 12 “If there ever was an attack on the family in this country, it is 13 [the District of Columbia’s] Domestic Partnership Act . . . To me, 14 this bill totally destroys the families of this country.” 15 Cong. Rec. H2950-04, 1992 WL 96521, at *H2950. 16 the appropriations ban before the Senate, Senator Brock Adams 17 entered into the Congressional record information detailing 18 domestic partnership recognition in numerous jurisdictions, apart 19 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 22 ban, Representative Ernst Istook argued, “Now, obviously this was 23 passed by the District of Columbia to enable people, more than 24 anything else, who are in a homosexual relationship to register an 25 26 27 28 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 1 equivalent of a gay marriage. 2 this particular proposal is abhorrent, in my view.” 3 Rec. H4353-01, 1993 WL 236117, at *H4355, *H4358; District of 4 Columbia Appropriations Act, 1994, Pub. L. No. 103-127, 107 Stat. 5 1336 (1993). That is one of the reasons that 139 Cong. Other representatives echoed these arguments in favor of 7 renewing the appropriations ban and the ban was renewed every year 8 from 1993 through 2001.3 9 WL 363727, at *H5601 (Representative Robert Dornan proclaiming, 10 United States District Court For the Northern District of California 6 “From my historical knowledge, this business of domestic partner 11 benefits started in Seattle where they were trying to give 12 privileged treatment to lesbian and homosexual partners . . . Let 13 us get rid of this domestic partnership nonsense.”); 141 Cong. 14 Rec. H11627-02, 1995 WL 639923, at *H11659 (Representative Cliff 15 Stearns asserting that domestic partnership registration laws 16 “undermine the traditional moral values that are the bedrock of 17 this Nation.”).4 See e.g., 140 Cong. Rec. H5589-02, 1994 18 19 20 21 22 23 24 25 26 27 28 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 6 enacting § 3 of the DOMA was Congress’s desire to foreclose 7 federal recognition of same-sex marriage. 8 of becoming the first state in the nation to grant marriage 9 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 11 heterosexual marriage reflect and honor a collective moral 12 judgment about human sexuality. 13 disapproval of homosexuality, and a moral conviction that 14 heterosexuality better comports with traditional (especially 15 Judeo-Christian) morality.” 16 report adopted the view that “‘[S]ame-sex marriage, if sanctified 17 by the law, if approved by the law, legitimates a public union, a 18 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) 22 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 25 26 5 27 28 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, 3 4 5 6 7 8 9 United States District Court For the Northern District of California 10 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 16 privileges available to persons in a domestic partnership 17 resulting from the non-recognition of domestic partnerships as 18 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. 28 10 1 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 27 CalPERS Long-Term Care Program on the same basis as similarly 28 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

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