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«Case4:10-cv-01564-CW Document64 Filed02/25/11 Page1 of 2 1 TONY WEST Assistant Attorney General ARTHUR R. GOLDBERG (DC Bar No. 180661) 3 Assistant ...»

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Case4:10-cv-01564-CW Document64 Filed02/25/11 Page1 of 2

1 TONY WEST

Assistant Attorney General

ARTHUR R. GOLDBERG (DC Bar No. 180661)

3 Assistant Branch Director

4 JEAN LIN (NY Bar No. 4074530)

Senior Counsel

5 United States Department of Justice

Civil Division

6 Federal Programs Branch

20 Massachusetts Ave., N.W.

7 Washington, DC 20530

(202) 514-3716

8 (202) 616-8470 (Fax)

jean.lin@usdoj.gov

Attorneys for Federal Defendants

11 IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

12 OAKLAND DIVISION ) No. 4:10-CV-01564-CW MICHAEL DRAGOVICH, MICHAEL ) GAITLEY, ELIZABETH LITTERAL, )

PATRICIA FITZSIMMONS, CAROLYN ) NOTICE TO THE COURT

LIGHT, and CHERYL LIGHT, on behalf ) BY FEDERAL DEFENDANTS of themselves and all others similarly ) situated, ) ) Plaintiffs, ) ) vs. ) )

UNITED STATES DEPARTMENT OF )

THE TREASURY, TIMOTHY ) GEITHNER, in his official capacity as ) Secretary of the 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. ) 27 ) Notice to the Court by Federal Defendants No. 4:10-CV-01564-CW Case4:10-cv-01564-CW Document64 Filed02/25/11 Page2 of 2 1 Defendants United States Department of the Treasury, Secretary Timothy Geithner, 2 Internal Revenue Service, and Commissioner Douglas Shulman (“Federal Defendants”), by its 3 undersigned counsel, hereby notify the Court and the parties that the Department of Justice will 4 cease defending the constitutionality of Section 3 of the Defense of

–  –  –

VIAECF Honorable Claudia Wilken United States District Judge United States District Court for the Northern District of California Oakland Courthouse 1301 Clay Street Oakland, CA 94612 Re: Dragovich v. Dep't of the Treasury, eta!, Civil Action No. 4:10-01564-CW

Dear Judge Wilken:

The above-referenced action involves, among other issues, the constitutionality of Section 3 of the Defense of Marriage Act ("DOMA"), I U.S.C. § 7. The President and Attorney General have recently made a determination regarding the constitutionality of Section 3.

Pursuant to the attached letter, the Attorney General and President have concluded: that heightened scrutiny is the appropriate standard of review for classifications based on sexual orientation; that, consistent with that standard, Section 3 of DOMA may not be constitutionally applied to same-sex couples whose marriages are legally recognized under state law; and that tbe Department will cease its defense of Section 3 in such cases.

Further, as the Attorney General explained in the attached letter, we hereby "notify the courts of our interest in providing Congress a full and fair opportunity to participate in the litigation in those cases." In addition, we "will remain parties to the case and continue to represent the interests of the United States throughout the litigation."

–  –  –

Dear Mr. Speaker:

After careful consideration, including review of a recommendation from me, the President of the United States has made the determination that Section 3 ofthe Defense of Marriage Act ("DOMA"), 1 U.S.C. § 7, 1 as applied to same-sex couples who are legally married under state law, violates the equal protection component of the Fifth Amendment. Pursuant to 28 U.S.C. § 530D, I am writing to advise you of the Executive Branch's determination and to inform you of the steps the Department will take in two pending DOMA cases to implement that determination.

While the Department has previously defended DOMA against legal challenges involving legally married same-sex couples, recent lawsuits that challenge the constitutionality of DOMA Section 3 have caused the President and the Department to conduct a new examination of the defense ofthis provision. In particular, in November 2011, plaintiffs filed two new lawsuits challenging the constitutionality of Section 3 ofDOMA in jurisdictions without precedent on whether sexual-orientation classifications are subject to rational basis review or whether they must satisfy some form ofheightened scrutiny. Windsor v. United States, No. 1:10-cv-8435 (S.D.N.Y.); Pedersen v. OPM, No. 3:10-cv-1750 (D. Conn.). Previously, the Administration has defended Section 3 in jurisdictions where circuit courts have already held that classifications DOMA Section 3 states: "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."

Case4:10-cv-01564-CW Document64-2 Filed02/25/11 Page2 of 6 based on sexual orientation are subject to rational basis review, and it has advanced arguments to defend DOMA Section 3 under the binding standard that has applied in those cases.





These new lawsuits, by contrast, will require the Department to take an affirmative position on the level of scrutiny that should be applied to DOMA Section 3 in a circuit without binding precedent on the issue. As described more fully below, the President and I have concluded that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Section 3 of DOMA is unconstitutional.

Standard of Review

The Supreme Court has yet to rule on the appropriate level of scrutiny for classifications based on sexual orientation. It has, however, rendered a number of decisions that set forth the

criteria that should inform this and any other judgment as to whether heightened scrutiny applies:

( 1) whether the group in question has suffered a history of discrimination; (2) whether individuals "exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group"; (3) whether the group is a minority or is politically powerless; and (4) whether the characteristics distinguishing the group have little relation to legitimate policy objectives or to an individual's "ability to perform or contribute to society." See Bowen v. Gilliard, 483 U.S.

587,602-03 (1987); City ofCleburne v. Cleburne Living Ctr., 473 U.S. 432,441-42 (1985).

Each of these factors counsels in favor of being suspicious of classifications based on sexual orientation. First and most importantly, there is, regrettably, a significant history of purposeful discrimination against gay and lesbian people, by governmental as well as private entities, based on prejudice and stereotypes that continue to have ramifications today. Indeed, until very recently, states have "demean[ed] the[] existence" of gays and lesbians "by making their private sexual conduct a crime." Lawrence v. Texas, 539 U.S. 558, 578 (2003). 3 See, e.g., Dragovich v. U.S. Department of the Treasury, 2011 WL 175502 (N.D. Cal. Jan. 18, 2011 ); Gill v. Office ofPersonnel Management, 699 F. Supp. 2d 374 (D. Mass. 2010); Smelt v. County of Orange, 374 F. Supp. 2d 861, 880 (C.D. Cal.,2005); Wilson v. Ake, 354 F.Supp.2d 1298, 1308 (M.D. Fla. 2005); In re Kandu, 315 B.R. 123, 145 (Bkrtcy. W.D. Wash. 2004); In re Levenson, 587 F.3d 925, 931 (9th Cir. E.D.R. Plan Administrative Ruling 2009).

While significant, that history of discrimination is different in some respects from the discrimination that burdened African-Americans and women. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200,216 (1995)(classifications based on race "must be viewed in light of the historical fact that the central purpose of the Fourteenth Amendment was to eliminate racial discrimination emanating from official sources in the States," and "[t]his strong policy renders racial classifications 'constitutionally suspect."'); United States v. Virginia, 518 U.S. 515,531 (1996) (observing that '"our Nation has had a long and unfortunate history of sex discrimination'" and pointing out the denial of the right to vote to women until 1920). In the case of sexual orientation, some of the discrimination has been based on the incorrect belief that sexual orientation is a behavioral characteristic that can be changed or subject to moral approbation. Cf Cleburne, 473 U.S. at 441 (heightened scrutiny may be warranted for characteristics "beyond the individual's control" and that "very likely reflect outmoded notions of the relative capabilities of' the group at issue); Boy Scouts ofAmerica v. Dale, 530 U.S. 640 (2000) (Stevens, J., dissenting) ("Unfavorable opinions about homosexuals 'have ancient roots."' (quoting Bowers, 478 U.S. at 192)).

Case4:10-cv-01564-CW Document64-2 Filed02/25/11 Page3 of 6 Second, while sexual orientation carries no visible badge, a growing scientific consensus accepts that sexual orientation is a characteristic that is immutable, see Richard A. Posner, Sex and Reason 101 (1992); it is undoubtedly unfair to require sexual orientation to be hidden from view to avoid discrimination, see Don't Ask, Don't Tell Repeal Act of2010, Pub. L. No. 111Stat. 3515 (2010).

Third, the adoption of laws like those at issue in Romer v. Evans, 51 7 U.S. 620 ( 1996), and Lawrence, the longstanding ban on gays and lesbians in the military, and the absence of federal protection for employment discrimination on the basis of sexual orientation show the group to have limited political power and "ability to attract the [favorable] attention of the lawmakers." Cleburne, 473 U.S. at 445. And. while the enactment of the Matthew Shepard Act and pending repeal of Don't Ask, Don't Tell indicate that the political process is not closed entirely to gay and lesbian people, that is not the standard by which the Court has judged "political powerlessness." Indeed, when the Court ruled that gender-based classifications were subject to heightened scrutiny, women already had won major political victories such as the Nineteenth Amendment (right to vote) and protection under Title VII (employment discrimination).

Finally, there is a growing acknowledgment that sexual orientation "bears no relation to ability to perform or contribute to society." Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (plurality). Recent evolutions in legislation (including the pending repeal of Don't Ask, Don't Tell), in community practices and attitudes, in case law (including the Supreme Court's holdings in Lawrence and Romer), and in social science regarding sexual orientation all make clear that sexual orientation is not a characteristic that generally bears on legitimate policy objectives. See, e.g., Statement by the President on the Don't Ask, Don't Tell Repeal Act of2010 ("It is time to recognize that sacrifice, valor and integrity are no more defined by sexual orientation than they are by race or gender, religion or creed.") To be sure, there is substantial circuit court authority applying rational basis review to sexual-orientation classifications. We have carefully examined each of those decisions. Many of them reason only that if consensual same-sex sodomy may be criminalized under Bowers v.

Hardwick, then it follows that no heightened review is appropriate a line of reasoning that does not survive the overruling of Bowers in Lawrence v. Texas, 538 U.S. 558 (2003). 4 Others rely on claims regarding "procreational responsibility" that the Department has disavowed already in litigation as unreasonable, or claims regarding the immutability of sexual orientation that we do not believe can be reconciled with more recent social science understandings. 5 And none See Equality Foundation v. City ofCincinnati, 54 F.3d 26I, 266-67 & n. 2. (6th Cir. I995); Steffan v. Perry, 4I F.3d 677, 685 (D.C. Cir. I994); Woodward v. United States, 871 F.2d I 068, I 076 (Fed. Cir. 1989); Ben-Shalom v.

Marsh, 88I F.2d 454, 464 (7th Cir. 1989); Padula v. Webster, 822 F.2d 97, I03 (D.C. Cir. I987).

See, e.g, Lofton v. Secretary ofthe Dep't ofChildren & Family Servs., 358 F.3d 804, 818 (lith Cir. 2004) (discussing child-rearing rationale); High Tech Gays v. Defense Indust. Sec. Clearance Office, 895 F.2d 563, 571 (9th Cir. 1990) (discussing immutability). As noted, this Administration has already disavowed in litigation the Case4:10-cv-01564-CW Document64-2 Filed02/25/11 Page4 of 6 engages in an examination of all the factors that the Supreme Court has identified as relevant to a decision about the appropriate level of scrutiny. Finally, many of the more recent decisions have relied on the fact that the Supreme Court has not recognized that gays and lesbians constitute a suspect class or the fact that the Court has applied rational basis review in its most recent decisions addressing classifications based on sexual orientation, Lawrence and Romer. 6 But neither of those decisions reached, let alone resolved, the level of scrutiny issue because in both the Court concluded that the laws could not even survive the more deferential rational basis standard.

Application to Section 3 of DOMA

In reviewing a legislative classification under heightened scrutiny, the government must establish that the classification is "substantially related to an important government objective."

Clark v. Jeter, 486 U.S. 456, 461 (1988). Under heightened scrutiny, "a tenable justification must describe actual state purposes, not rationalizations for actions in fact differently grounded."

United States v. Virginia, 518 U.S. 515, 535-36 (1996). "The justification must be genuine, not hypothesized or invented post hoc in response to litigation." !d. at 533.

In other words, under heightened scrutiny, the United States cannot defend Section 3 by advancing hypothetical rationales, independent of the legislative record, as it has done in circuits where precedent mandates application of rational basis review. Instead, the United States can defend Section 3 only by invoking Congress' actual justifications for the law.



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