12-2335-cv(L)
     Windsor v. United States
 1
 2                       UNITED STATES COURT OF APPEALS
 3
 4                              FOR THE SECOND CIRCUIT
 5
 6                                 August Term, 2012
 7
 8
 9    (Argued: September 27, 2012             Decided: October 18, 2012)
10
11                 Docket No. 12-2335-cv(L); 12-2435(Con)
12
13   - - - - - - - - - - - - - - - - - - - -x
14
15   EDITH SCHLAIN WINDSOR, IN HER OFFICIAL CAPACITY AS EXECUTOR
16   OF THE ESTATE OF THEA CLARA SPYER,
17
18                     Plaintiff-Appellee,
19
20               - v.-
21
22   UNITED STATES OF AMERICA,
23
24                     Defendant-Appellant,
25
26               and
27
28   BIPARTISAN LEGAL ADVISORY GROUP OF THE UNITED STATES HOUSE
29   OF REPRESENTATIVES,
30
31                     Intervenor-Defendant-Appellant.
32
33   - - - - - - - - - - - - - - - - - - - -x
34

35         Before:              JACOBS, Chief Judge, STRAUB and DRONEY,
36                              Circuit Judges.
37
38         Intervenor Bipartisan Legal Advisory Group of the

39   United States House of Representatives appeals from an order

40   of the United States District Court for the Southern

41   District of New York granting summary judgment in favor of
1    the surviving spouse of a same-sex couple who was denied the

2    benefit of the spousal deduction under federal tax law.    The

3    United States, the defendant, is a nominal appellant.    For

4    the following reasons, we conclude that Section 3 of the

5    Defense of Marriage Act violates equal protection and is

6    therefore unconstitutional.

7        Judge STRAUB dissents in part and concurs in part in a

8    separate opinion.

 9                                 STUART F. DELERY, Acting
10                                 Assistant Attorney General,
11                                 United States Department of
12                                 Justice, Washington, DC (Michael
13                                 Jay Singer, August E. Flentje,
14                                 on the brief), for Defendant-
15                                 Appellant.
16
17                                 PAUL D. CLEMENT, Bancroft PLLC,
18                                 Washington, DC (H. Christopher
19                                 Bartolomucci, Conor B. Dugan,
20                                 and Nicholas J. Nelson, on the
21                                 brief; Kerry W. Kircher, William
22                                 Pittard, Christine Davenport,
23                                 Todd B. Tatelman, Mary Beth
24                                 Walker, Office of General
25                                 Counsel, United States House of
26                                 Representatives, Washington, DC,
27                                 of counsel), for Intervenor-
28                                 Defendant-Appellant.
29
30                                 ROBERTA A. KAPLAN, Paul, Weiss,
31                                 Rifkind, Wharton & Garrison LLP,
32                                 New York, NY (Andrew J. Ehrlich,
33                                 Jaren Janghorbani, Paul, Weiss,
34                                 Rifkind, Wharton & Garrison LLP,
35                                 New York, NY, James D. Esseks
36                                 and Rose A. Saxe, American Civil

                                    2
 1   Liberties Union, New York, NY,
 2   and Melissa Goodman, Arthur
 3   Eisenberg, and Mariko Hirose,
 4   New York Civil Liberties Union
 5   Foundation, New York, NY, on the
 6   brief), for Appellee.
 7
 8   Vincent P. McCarthy, Litchfield,
 9   CT, for amicus curiae American
10   College of Pediatricians in
11   support of Intervenor-Defendant-
12   Appellant.
13
14   Joseph A. Campbell, Alliance
15   Defending Freedom, Scottsdale,
16   AZ, for amicus curiae Frederick
17   Douglas Foundation in support of
18   Intervenor-Defendant-Appellant.
19
20   Cecilia Noland-Heil, American
21   Center for Law & Justice,
22   Virginia Beach, VA (Erik
23   Zimmerman, Jay Alan Sekulow and
24   Stuart J. Roth, American Center
25   for Law & Justice, Virginia
26   Beach, VA and Washington, DC, on
27   the brief), for amici curiae
28   Former Attorneys General Edwin
29   Meese III and John Ashcroft in
30   support of Intervenor-Defendant-
31   Appellant.
32
33   Gregory F. Zoeller, Attorney
34   General, State of Indiana,
35   Indianapolis, IN (Thomas M.
36   Fisher, Solicitor General, Ellen
37   H. Meilaender, Deputy Attorney
38   General, on the brief), for
39   amici curiae States of Indiana,
40   Alabama, Alaska, Arizona,
41   Colorado, Georgia, Idaho,
42   Kansas, Michigan, Nebraska,
43   Oklahoma, South Carolina, South
44   Dakota and Virginia in support

      3
 1   of Intervenor-Defendant-
 2   Appellant.
 3
 4   Joshua K. Baker, National
 5   Organization for Marriage,
 6   Washington, DC (William C.
 7   Duncan, Marriage Law Foundation,
 8   Lehi, UT, on the brief), for
 9   amicus curiae National
10   Organization for Marriage in
11   support of Intervenor-Defendant-
12   Appellant.
13
14   Steven W. Fitschen, The National
15   Legal Foundation, Virginia
16   Beach, VA, for amicus curiae
17   Concerned Women for America in
18   support of Intervenor-Defendant-
19   Appellant.
20
21   William F. Sheehan, Goodwin
22   Procter LLP, Washington, DC
23   (Andrew S. Hudson, Goodwin
24   Procter LLP, Washington, DC and
25   Nathalie F.P. Gilfoyle, American
26   Psychological Association,
27   Washington, DC, on the brief),
28   for amici curiae the American
29   Psychological Association, the
30   American Academy of Pediatrics,
31   the American Psychiatric
32   Association, the American
33   Psychoanalytic Association, the
34   National Association of Social
35   Workers and its New York City
36   and State Chapters, and the New
37   York State Psychological
38   Association in support of
39   Plaintiff-Appellee.
40
41   Susan L. Sommer, Lambda Legal
42   Defense & Education Fund, Inc.,
43   New York, NY (Timothy S. Fischer
44   and Brian P. Rice, McCarter &

      4
 1   English, LLP, Hartford, CT and
 2   Shannon P. Minter and
 3   Christopher F. Stoll, National
 4   Center for Lesbian Rights, San
 5   Francisco, CA, on the brief),
 6   for amici curiae Bar
 7   Associations and Public Interest
 8   and Legal Service Organizations
 9   in Support of Plaintiff-
10   Appellee.
11
12   Matthew F. Damm, O’Melveny &
13   Myers LLP, New York, NY (Dawn
14   Sestito, Demitri D. Portnoi, and
15   Amy R. Lucas, O’Melveny & Myers
16   LLP, Los Angeles, CA and New
17   York, NY, on the brief), for
18   amici curiae Family Law
19   Professors in Support of
20   Plaintiff-Appellee.
21
22   Michael A. Cardozo, Corporation
23   Counsel of the City of New York,
24   New York, NY (Francis F. Caputo,
25   Susan Paulson, on the brief),
26   for amici curiae the City of New
27   York, the Council of the City of
28   New York, Michael R. Bloomberg,
29   in His Official Capacity as
30   Mayor of the City of New York,
31   and Christine C. Quinn, in Her
32   Official Capacity as Speaker of
33   the Council of the City of New
34   York in Support of Plaintiff-
35   Appellee.
36
37   Mark Wolinsky, Wachtell, Lipton,
38   Rosen & Katz, New York, NY
39   (Jonathan M. Moses, Kevin S.
40   Schwartz, Luke M. Appling, on
41   the brief), for amicus curiae
42   the Partnership for New York
43   City in Support of Plaintiff-
44   Appellee.

      5
 1   Suzanne B. Goldberg, Columbia
 2   Law School, New York, NY, for
 3   amicus curiae Columbia Law
 4   School Sexuality & Gender Law
 5   Clinic in Support of Plaintiff-
 6   Appellee.
 7
 8   Catherine R. Connors, Pierce
 9   Atwood LLP, Portland, ME, for
10   amici curiae Historians in
11   Support of Plaintiff-Appellee.
12
13   Miriam R. Nemetz, Mayer Brown
14   LLP, Washington, DC (Kathleen
15   Connery Dawe and Michael B.
16   Kimberly, Mayer Brown LLP,
17   Washington, DC, and Heather C.
18   Sawyer, Committee on the
19   Judiciary, John Conyers, Jr.,
20   and Jerrold Nadler, Ranking
21   Members, Washington, DC), for
22   amici curiae Members of the U.S.
23   House of Representatives, in
24   Support of Plaintiff-Appellee.
25
26   Nicole G. Berner, Washington, DC
27   (James B. Coppess, AFL-CIO,
28   Washington, DC, Patrick
29   Szymanski, Change to Win,
30   Washington, DC, and Alice
31   O’Brien, National Education
32   Association, Washington, DC, on
33   the brief), for amici curiae
34   American Federation of Labor and
35   Congress of Industrial
36   Organizations, Change to Win,
37   and National Education
38   Association in support of
39   Plaintiff-Appellee.
40
41   Joseph F. Tringali, Simpson
42   Thacher & Bartlett LLP, New
43   York, NY (Alexandra C. Pitney
44   and Nicholas S. Davis, on the

      6
 1   brief), for amici curiae Service
 2   and Advocacy for Gay, Lesbian,
 3   Bisexual and Transgender Elders
 4   (SAGE), National Senior Citizens
 5   Law Center and American Society
 6   on Aging in support of
 7   Plaintiff-Appellee.
 8
 9   Debo P. Adegbile, NAACP Legal
10   Defense & Education Fund, Inc.,
11   New York, NY (Elice C. Boddie,
12   Rachel M. Kleinman, Ria A.
13   Tabacco, Joshua Civin, NAACP
14   Legal Defense & Education Fund,
15   Inc., New York, NY, and
16   Washington, DC), for amicus
17   curiae NAACP Legal Defense &
18   Education Fund, Inc., in support
19   of Plaintiff-Appellee.
20
21   Harvey J. Wolkoff, Ropes & Gray
22   LLP, New York, NY (Stuart W.
23   Yothers and Samuel P. Bickett,
24   Ropes & Gray LLP, New York, NY
25   and Steven M. Freeman and Seth
26   M. Marnin, Anti-Defamation
27   League, New York, NY, on the
28   brief), for amici curiae Anti-
29   Defamation League, Central
30   Conference of American Rabbis,
31   Congregation Beit Simchat Torah,
32   Bend the Arc: A Jewish
33   Partnership for Justice,
34   Hadassah: the Women’s Zionist
35   Organization of America, the
36   Hindu American Foundation,
37   Interfaith Alliance Foundation,
38   Japanese Citizens League, the
39   Justice and Witness Ministries:
40   United Church of Christ,
41   National Counsel of Jewish
42   Women, People for the American
43   Way Foundation, Union for Reform
44   Judaism, Women’s League for

      7
 1   Conservative Judaism, and Women
 2   of Reform Judaism in support of
 3   Plaintiff-Appellee.
 4
 5   Sharon L. Nelles, Sullivan &
 6   Cromwell LLP, New York, NY (H.
 7   Rodgin Cohen, Mitchell S. Eitel,
 8   William H. Wagener, Heather H.
 9   Volik, Diana G. Iskelov,
10   Sullivan & Cromwell LLP, New
11   York, NY and Laura W. Brill and
12   Meaghan Field, Kendall Brill &
13   Klieger LLP, Los Angeles, CA, on
14   the brief), for amici curiae
15   Professors of Family and Child
16   Welfare Law in support of
17   Plaintiff-Appellee.
18
19   Eric T. Schneiderman, Attorney
20   General, State of New York, New
21   York, NY (William H. Sorrell,
22   Attorney General, State of
23   Vermont, Montpelier, VT and
24   George Jepsen, Attorney General,
25   State of Connecticut, Hartford,
26   CT, on the brief) for amici
27   curiae States of New York,
28   Vermont, and Connecticut in
29   support of neither party.
30
31   Melanie Sloan, Citizens for
32   Responsibility and Ethics in
33   Washington, Washington, DC,
34   (Anne L. Weismann, Citizens for
35   Responsibility and Ethics in
36   Washington, Washington, DC and
37   Alan B. Morrison, George
38   Washington Law School,
39   Washington, DC, on the brief),
40   for amicus curiae Citizens for
41   Responsibility and Ethics in
42   Washington in support of neither
43   party.
44

      8
1    DENNIS JACOBS, Chief Judge:

2        Plaintiff Edith Windsor sued as surviving spouse of a

3    same-sex couple that was married in Canada in 2007 and was

4    resident in New York at the time of her spouse’s death in

5    2009.    Windsor was denied the benefit of the spousal

6    deduction for federal estate taxes under 26 U.S.C. § 2056(A)

7    solely because Section 3 of the Defense of Marriage Act

8    (“DOMA”), 1 U.S.C. § 7, defines the words “marriage” and

9    “spouse” in federal law in a way that bars the Internal

10   Revenue Service from recognizing Windsor as a spouse or the

11   couple as married.    The text of § 3 is as follows:

12       In determining the meaning of any Act of Congress, or
13       of any ruling, regulation, or interpretation of the
14       various administrative bureaus and agencies of the
15       United States, the word “marriage” means only a legal
16       union between one man and one woman as husband and
17       wife, the word “spouse” refers only to a person of the
18       opposite sex who is a husband or a wife.

19   1 U.S.C. § 7.    At issue is Windsor’s claim for a refund in

20   the amount of $363,053, which turns on the constitutionality

21   of that section of federal law.

22       For the reasons that follow we hold that:

23       I.    Windsor has standing in this action because we

24   predict that New York, which did not permit same-sex

25   marriage to be licensed until 2011, would nevertheless have


                                    9
1    recognized Windsor and Thea Clara Spyer as married at the

2    time of Spyer’s death in 2009, so that Windsor was a

3    surviving spouse under New York law.

4        II.    Windsor’s suit is not foreclosed by Baker v.

5    Nelson, 

 (1971), which held that the use of the

6    traditional definition of marriage for a state’s own

7    regulation of marriage status did not violate equal

8    protection.

9        III.    Section 3 of DOMA is subject to intermediate

10   scrutiny under the factors enumerated in City of Cleburn v.

11   Cleburn Living Center, 

 (1985), and other cases.

12       IV.    The statute does not withstand that review.

13                                 * * *

14       On June 6, 2012, the United States District Court for

15   the Southern District of New York (Jones, J.) granted

16   summary judgment in favor of Windsor in a thorough opinion.

17   Windsor v. United States, 

 (S.D.N.Y.

18   2012).    The court ruled that Section 3 of DOMA violated the

19   equal protection because there was no rational basis to

20   support it.    Id. at 406.   “We review a district court's

21   grant of summary judgment de novo, construing the record in

22   the light most favorable to the nonmoving party.”     Church of


                                     10
1    American Knights of the Ku Klux Klan v. Kerik, 

,

2    203 (2d Cir. 2004).

3        A preliminary issue concerning alignment of the parties

4    on appeal has been presented by motion.         The United States,

5    initially named as the sole defendant, conducted its defense

6    of the statute in the district court up to a point.           On

7    February 23, 2011, three months after suit was filed, the

8    Department of Justice declined to defend the Act thereafter,

9    and members of Congress took steps to support it.           The

10   Bipartisan Legal Advisory Group of the United States House

11   of Representatives (“BLAG”) retained counsel and since then

12   has taken the laboring oar in defense of the statute.              The

13   United States remained active as a party, switching sides to

14   advocate that the statute be ruled unconstitutional.

15       Following the district court’s decision, BLAG filed a

16   notice of appeal, as did the United States in its role as

17   nominal defendant.    BLAG moved this Court at the outset to

18   strike the notice of appeal filed by the United States and

19   to realign the appellate parties to reflect that the United

20   States prevailed in the result it advocated in the district

21   court.   The motion is denied.        Notwithstanding the

22   withdrawal of its advocacy, the United States continues to



                                      11
1    enforce Section 3 of DOMA, which is indeed why Windsor does

2    not have her money.    The constitutionality of the statute

3    will have a considerable impact on many operations of the

4    United States.   See INS v. Chadha, 

, 931 (1983)

5    (“When an agency of the United States is a party to a case

6    in which the Act of Congress it administers is held

7    unconstitutional, it is an aggrieved party for purposes of

8    taking an appeal . . . . The agency’s status as an aggrieved

9    party . . . is not altered by the fact that the Executive

10   may agree with the holding that the statute in question is

11   unconstitutional.”).

12

13                              DISCUSSION

14                                  I

15       For the purpose of federal estate taxes, the law of the

16   state of domicile ordinarily determines whether two persons

17   were married at the time of death.      Eccles v. Comm’r, 19

, 1051, 1053-54 (1953); Rev. Rul. 58-66, 1958-1

19   C.B. 60 (“The marital status of individuals as determined

20   under state law is recognized in the administration of the

21   Federal income tax laws.”).    At the time of Spyer’s death in

22   2009, New York did not yet license same-sex marriage itself.


                                    12
1    A separate question–-decisive for standing in this case–-is

2    whether in 2009 New York recognized same-sex marriages

3    entered into in other jurisdictions.      That question was

4    presented to the New York Court of Appeals in Godfrey v.

5    Spano, 

 (2009).     However, the court was able to

6    resolve that case on other grounds, finding “it unnecessary

7    to reach defendants' argument that New York's common-law

8    marriage recognition rule is a proper basis for the

9    challenged recognition of out-of-state same-sex marriages.”

10   Id. at 377.

11       When we are faced with a question of New York law that

12   is decisive but unsettled, we may “predict” what the state’s

13   law is, consulting any rulings of its intermediate appellate

14   courts and trial courts, or we may certify the question to

15   the New York Court of Appeals.      See State Farm Mut. Auto.

16   Ins. Co. v. Madella, 

, 505 (2d Cir. 2004).        BLAG

17   urges that we certify this question, observing that this is

18   an option that we have and that the district court did not.

19   We decline to certify.

20       First, the Court of Appeals has signaled its

21   disinclination to decide this very question.      When it

22   elected to decide Godfrey on an alternative sufficient



                                    13
1    ground, the Court of Appeals expressed a preference and

2    expectation that the issue would be decided by the New York

3    legislature: “[w]e . . . hope that the Legislature will

4    address this controversy.”     Godfrey, 13 N.Y.3d at 377.   We

5    hesitate to serve up to the Court of Appeals a question that

6    it is reluctant to answer for a prudential reason.

7        Second, rulings of New York’s intermediate appellate

8    courts are useful and unanimous on this issue.    It is a

9    “well-established principle that the ruling of an

10   intermediate appellate state court is a datum for

11   ascertaining state law which is not to be disregarded by a

12   federal court unless it is convinced by other persuasive

13   data that the highest court of the state would decide

14   otherwise.”   Statharos v. New York City Taxi and Limousine

15   Comm'n, 

, 321 (2d Cir. 1999) (internal quotation

16   marks and ellipsis omitted).    Three of New York’s four

17   appellate divisions have concluded that New York recognized

18   foreign same-sex marriages before the state passed its

19   marriage statute in 2011.    See In re Estate of Ranftle, 81

 (1st Dep't 2011) (Windsor’s home Department,

21   recognizing a 2008 Canadian marriage); Lewis v. N.Y. State

22   Dep't of Civil Serv., 

 (3rd Dep’t 2009),


                                     14
1    aff'd on other grounds sub nom. Godfrey, 

;

2    Martinez v. Cnty. of Monroe, 

 (4th Dep’t

3    2008).    Two of these cases, Lewis and Martinez, were decided

4    before Spyer died on February 5, 2009.      Given the consistent

5    view of these decisions, we see no need to seek guidance

6    here.    Because Windsor’s marriage would have been recognized

7    under New York law at the time of Spyer’s death, she has

8    standing.

9

10                                  II

11       In    Baker v. Nelson, an appeal from a Minnesota Supreme

12   Court decision finding no right to same-sex marriage, the

13   Supreme Court issued a summary dismissal “for want of a

14   substantial federal question.”      

 (1971).   The

15   Minnesota Supreme Court had held that “[t]he equal

16   protection clause of the Fourteenth Amendment, like the due

17   process clause, is not offended by the state's

18   classification of persons authorized to marry.”      Baker v.

19   Nelson, 

, 313 (Minn. 1971).      According to BLAG,

20   Baker compels the inference that Congress may prohibit same-

21   sex marriage in the same way under federal law without

22   offending the Equal Protection Clause.      We disagree.


                                    15
1        “The Supreme Court has long recognized that the

2    precedential value of a summary dismissal is limited to ‘the

3    precise issues presented and necessarily decided by’ the

4    dismissal.”    Alexander v. Cahill, 

, 89 n.7 (2d

5    Cir. 2010) (quoting Mandell v. Bradley, 

, 176

6    (1977)).    The question whether the federal government may

7    constitutionally define marriage as it does in Section 3 of

8    DOMA is sufficiently distinct from the question in Baker:

9    whether same-sex marriage may be constitutionally restricted

10   by the states.    After all, Windsor and Spyer were actually

11   married in this case, at least in the eye of New York, where

12   they lived.   Other courts have likewise concluded that Baker

13   does not control equal protection review of DOMA for these

14   reasons.1


          1
            See Massachusetts v. U.S. Dep’t of HHS, 

, 8
     (1st Cir. 2012) (finding that Baker permitted equal
     protection review so long as arguments did not “rest on a
     constitutional right to same-sex marriage”); Windsor, 833 F.
     Supp. 2d at 399-400 (“The case before the Court does not
     present the same issue as that presented in
     Baker. . . . Accordingly, after comparing the issues in
     Baker and those in the instant case, the Court does not
     believe that Baker ‘necessarily decided’ the question of
     whether DOMA violates the Fifth Amendment's Equal Protection
     Clause.”); Pedersen v. Office of Pers. Mmgmt., No.
     3:10-cv-1750, 

, at *11 (D. Conn. July 31,
     2012) (“DOMA impacts federal benefits and obligations, but
     does not prohibit a state from authorizing or forbidding
     same-sex marriage, as was the case in Baker.”); Golinski v.
     U.S. Office of Pers. Mgmt., 

, 982 n.5
                                    16
1        Even if Baker might have had resonance for Windsor’s

2    case in 1971, it does not today.   “‘[I]nferior federal

3    courts had best adhere to the view that if the Court has

4    branded a question as unsubstantial, it remains so except

5    when doctrinal developments indicate otherwise.’”     Hicks v.

6    Miranda, 

, 344 (1975) (quoting Port Auth.

7    Bondholders Protective Comm. v. Port of N.Y. Auth., 

    259, 263 n.3 (2d Cir. 1967) (Friendly, J.)) (emphasis

9    added).   In the forty years after Baker, there have been

10   manifold changes to the Supreme Court’s equal protection

11   jurisprudence.

12       When Baker was decided in 1971, “intermediate scrutiny”

13   was not yet in the Court’s vernacular.     See Craig v. Boren,

14   

, 218 (1976) (Rehnquist, J., dissenting)

15   (coining “intermediate level scrutiny”).    Classifications


     (N.D. Cal. 2012) (“The failure of the federal government to
     recognize Ms. Golinski's marriage and to provide benefits
     does not alter the fact that she is married under state
     law.”); Dragovich v. U.S. Dept. of Treasury, No. 4:10-cv-
     01564-CW, 

, at *6-7 (N.D. Cal. May 24, 2012);
     Smelt v. Cnty of Orange, 

. 861, 872-74 (C.D.
     Cal. 2005), vacated in part on other grounds, 

     (9th Cir. 2006); In re Kandu, 

, 135-38 (Bankr.
     W.D. Wash. 2004); see also Perry v. Brown, 

,
     1082 n. 14 (9th Cir. 2012) (finding that Baker did not
     preempt consideration of Proposition 8 case, because “the
     question of the constitutionality of a state's ban on
     same-sex marriage” was not before the court) (emphasis
     added).
                                   17
1    based on illegitimacy and sex were not yet deemed quasi-

2    suspect.     See Lalli v. Lalli, 

, 264-65, 275

3    (1982) (applying intermediate scrutiny to a classification

4    based on illegitimacy, and describing how heightened

5    scrutiny had been used for such classifications starting in

6    1976); Frontiero v. Richardson, 

, 682 (1973)

7    (plurality opinion) (identifying sex as a suspect class);

8    Boren, 429 U.S. at 197-98 (applying intermediate scrutiny to

9    a classification based on sex); United States v. Virginia,

10   

, 575 (1996) (Scalia, J., dissenting)

11   (summarizing that sex-based classifications were analyzed

12   with rational basis review before the 1970's).2    The Court

13   had not yet ruled that “a classification of [homosexuals]

14   undertaken for its own sake” actually lacked a rational

15   basis.     Romer v. Evans, 

, 635 (1996).   And, in

16   1971, the government could lawfully “demean [homosexuals’]

17   existence or control their destiny by making their private

18   sexual conduct a crime.”     Lawrence v. Texas, 

,

19   574, 578 (2003) (noting that there was a “tenable” equal



          2
            While other classifications have been deemed quasi-
     suspect or suspect over the years, the decisions to add sex
     and illegitimacy are especially helpful in analyzing whether
     the classification made in DOMA merits intermediate
     scrutiny.
                                     18
1    protection argument against such laws, but choosing instead

2    to overturn Bowers v. Hardwick, 

 (1986)).     These

3    doctrinal changes constitute another reason why Baker does

4    not foreclose our disposition of this case.

5        The First Circuit has suggested in dicta that

6    recognition of a new suspect classification in this context

7    would “imply[] an overruling of Baker.”     See Massachusetts,

8    682 F.3d at 9.   We disagree for two reasons that the First

9    Circuit did not discuss.     First, when it comes to marriage,

10   legitimate regulatory interests of a state differ from those

11   of the federal government.     Regulation of marriage is “an

12   area that has long been regarded as a virtually exclusive

13   province of the States.”     Sosna v. Iowa, 

, 404

14   (1975).   It has for very long been settled that “[t]he

15   State . . . has [the] absolute right to prescribe the

16   conditions upon which the marriage relation between its own

17   citizens shall be created, and the causes for which it may

18   be dissolved.”   Pennoyer v. Neff, 

, 734-35

19   (1878), overruled on other grounds by Shaffer v. Heitner,

20   

 (1977).   Therefore, our heightened scrutiny

21   analysis of DOMA’s marital classification under federal law

22   is distinct from the analysis necessary to determine whether

23   the marital classification of a state would survive such

24   scrutiny.

                                     19
1        Second, the Supreme Court’s decision to apply rational

2    basis review in Romer does not imply to us a refusal to

3    recognize homosexuals as a quasi-suspect class.         See

4    Massachusetts, 682 F.3d at 9.        The litigants in Romer had

5    abandoned their quasi-suspect argument after the trial court

6    decision.   See Romer, 517 U.S. at 640 n.1 (Scalia, J.,

7    dissenting).   We are satisfied, for these reasons, that

8    Baker has no bearing on this case.

9

10                                III

11       “In deciding an equal protection challenge to a statute

12   that classifies persons for the purpose of receiving

13   [federal] benefits, we are required, so long as the

14   classifications are not suspect or quasi-suspect and do not

15   infringe fundamental constitutional rights, to uphold the

16   legislation if it bears a rational relationship to a

17   legitimate governmental objective.”        Thomas v. Sullivan, 922

, 136 (2d Cir. 1990).        Of course, “‘a

19   bare . . . desire to harm a politically unpopular group

20   cannot constitute a legitimate government interest.’”            Romer

21   v. Evans, 

, 634-35 (1996) (quoting Dep’t. of

22   Agric. v. Moreno, 

, 534 (1973)).          So while

23   rational basis review is indulgent and respectful, it is not

                                     20
1    meant to be “toothless.”    Schweiker v. Wilson, 

,

2    234 (1981) (quoting Mathews v. Lucas, 

, 510

3    (1976)).

4        The district court ruled that DOMA violated the Equal

5    Protection Clause for want of a rational basis.     Windsor,

6    833 F. Supp. 2d at 406.    But the existence of a rational

7    basis for Section 3 of DOMA is closely argued.     BLAG and its

8    amici proffer several justifications that alone or in tandem

9    are said to constitute sufficient reason for the enactment.

10   Among these reasons are protection of the fisc, uniform

11   administration of federal law notwithstanding recognition of

12   same-sex marriage in some states but not others, the

13   protection of traditional marriage generally, and the

14   encouragement of “responsible” procreation.

15       Windsor and her amici vigorously argue that DOMA is not

16   rationally related to any of these goals.     Rational basis

17   review places the burden of persuasion on the party

18   challenging a law, who must disprove “‘every conceivable

19   basis which might support it.’”     Heller v. Doe, 

   312, 320 (1993) (quoting Lehnhausen v. Lake Shore Auto Parts

21   Co., 

, 364 (1973)).     So a party urging the

22   absence of any rational basis takes up a heavy load.        That

23   would seem to be true in this case--the law was passed by

                                    21
1    overwhelming bipartisan majorities in both houses of

2    Congress; it has varying impact on more than a thousand

3    federal laws; and the definition of marriage it affirms has

4    been long-supported and encouraged.

5        On the other hand, several courts have read the Supreme

6    Court’s recent cases in this area to suggest that rational

7    basis review should be more demanding when there are

8    “historic patterns of disadvantage suffered by the group

9    adversely affected by the statute.”     See Massachusetts, 682

10   F.3d at 10-11; Able v. U.S., 

, 634 (2d Cir.

11   1998); United States v. Then, 

, 468 (2d Cir.

12   1995) (Calabresi, J., concurring).     Proceeding along those

13   lines, the district court in this case and the First Circuit

14   in Massachusetts both adopted more exacting rational basis

15   review for DOMA.     See Massachusetts, 682 F.3d at 11

16   (describing its “more careful assessment”); Windsor, 

   Supp. 2d at 402 (noting that “rational basis analysis can

18   vary by context”).    At argument, counsel for BLAG wittily

19   characterized this form of analysis as “rational basis plus

20   or intermediate scrutiny minus.”     Oral Arg. Tr. 16:10-12.

21       The Supreme Court has not expressly sanctioned such

22   modulation in the level of rational basis review; discussion

23   pro and con has largely been confined to concurring and

                                     22
1   dissenting opinions.3      We think it is safe to say that there

2   is some doctrinal instability in this area.

3       Fortunately, no permutation of rational basis review is

4   needed if heightened scrutiny is available, as it is in this

5   case.       We therefore decline to join issue with the dissent,

6   which explains why Section 3 of DOMA may withstand rational

7   basis review.


            3
           Compare Lawrence, 539 U.S. at 580 (O’Connor, J.,
    concurring) (“When a law exhibits such a desire to harm a
    politically unpopular group, we have applied a more
    searching form of rational basis review to strike down such
    laws under the Equal Protection Clause.”) and U.S. R.R. Ret.
    Bd. v. Fritz, 

, 188 (1980) (Brennan, J.,
    dissenting) (“In other cases, however, the courts must probe
    more deeply.”) with City of Cleburne, Tex. v. Cleburne
    Living Center, 

, 459-60 (1985) (Marshall, J.,
    concurring in part and dissenting in part) (“The refusal to
    acknowledge that something more than minimum rationality
    review is at work here is, in my view,
    unfortunate . . . . [B]y failing to articulate the factors
    that justify today's ‘second order’ rational-basis review,
    the Court provides no principled foundation for determining
    when more searching inquiry is to be invoked. Lower courts
    are thus left in the dark on this important question, and
    this Court remains unaccountable for its decisions
    employing, or refusing to employ, particularly searching
    scrutiny.”) and Mass. Bd. of Ret. v. Murgia, 

,
    321 (1976) (Marshall, J., dissenting) (“[T]he Court has
    rejected, albeit Sub silentio, its most deferential
    statements of the rationality standard in assessing the
    validity under the Equal Protection Clause of much
    noneconomic legislation.”). But see U.S. R.R. Ret. Bd., 449
    U.S. at 176 n.10 (“The comments in the dissenting opinion
    about the proper cases for which to look for the correct
    statement of the equal protection rational-basis standard,
    and about which cases limit earlier cases, are just that:
    comments in a dissenting opinion.”).
                                      23
1        Instead, we conclude that review of Section 3 of DOMA

2    requires heightened scrutiny.        The Supreme Court uses

3    certain factors to decide whether a new classification

4    qualifies as a quasi-suspect class.        They include: A)

5    whether the class has been historically “subjected to

6    discrimination,” Bowen v. Gilliard, 

, 602

7    (1987); B) whether the class has a defining characteristic

8    that “frequently bears [a] relation to ability to perform or

9    contribute to society,” Cleburne, 473 U.S. at 440-41; C)

10   whether the class exhibits “obvious, immutable, or

11   distinguishing characteristics that define them as a

12   discrete group;” Bowen, 483 U.S. at 602; and D) whether the

13   class is “a minority or politically powerless.”        Id.

14   Immutability and lack of political power are not strictly

15   necessary factors to identify a suspect class.        See

16   Cleburne, 473 U.S. at 442 n.10 (“‘[T]here’s not much left of

17   the immutability theory, is there?’”) (quoting J. Ely,

18   Democracy and Distrust 150 (1980)); Cleburne, 473 U.S. at

19   472 n.24 (Marshall, J., concurring in part and dissenting in

20   part) (“The ‘political powerlessness’ of a group may be

21   relevant, but that factor is neither necessary, as the

22   gender cases demonstrate, nor sufficient, as the example of

23   minors illustrates.”); Nyquist v. Mauclet, 

, 9

                                     24
1    n.11 (1977) (rejecting the argument that alienage did not

2    deserve strict scrutiny because it was not immutable); see

3    also Pedersen, 

, at *13; Golinski, 

    Supp. 2d at 983; Kerrigan v. Comm’r of Pub. Health, 289

, 167-68 (2008). Nevertheless, immutability and

6    political power are indicative, and we consider them here.

7    In this case, all four factors justify heightened scrutiny:

8    A) homosexuals as a group have historically endured

9    persecution and discrimination; B) homosexuality has no

10   relation to aptitude or ability to contribute to society; C)

11   homosexuals are a discernible group with non-obvious

12   distinguishing characteristics, especially in the subset of

13   those who enter same-sex marriages; and D) the class remains

14   a politically weakened minority.

15       A)   History of Discrimination

16       It is easy to conclude that homosexuals have suffered a

17   history of discrimination.   Windsor and several amici labor

18   to establish and document this history, but we think it is

19   not much in debate.   Perhaps the most telling proof of

20   animus and discrimination against homosexuals in this

21   country is that, for many years and in many states,

22   homosexual conduct was criminal.   These laws had the

23   imprimatur of the Supreme Court.   See Bowers, 478 U.S. at

                                   25
1    196; see also Lawrence, 539 U.S. at 578 (noting that such

2    laws “demean[ed homosexuals’] existence [and] control[led]

3    their destiny”).

4        BLAG argues that discrimination against homosexuals

5    differs from that against racial minorities and women

6    because “homosexuals as a class have never been politically

7    disenfranchised.”   True, but the difference is not decisive.

8    Citizens born out of wedlock have never been inhibited in

9    voting; yet the Supreme Court has applied intermediate

10   scrutiny in cases of illegitimacy.     See generally Lalli v.

11   Lalli, 

 (1982).     Second, BLAG argues that,

12   unlike protected classes, homosexuals have not “suffered

13   discrimination for longer than history has been recorded.”

14   But whether such discrimination existed in Babylon is

15   neither here nor there.   BLAG concedes that homosexuals have

16   endured discrimination in this country since at least the

17   1920s.   Ninety years of discrimination is entirely

18   sufficient to document a “history of discrimination.”       See

19   Pedersen, 

 at *21 (summarizing that “the

20   majority of cases which have meaningfully considered the

21   question [have] likewise held that homosexuals as a class

22   have experienced a long history of discrimination”).

23       B)    Relation to Ability

                                     26
1           Also easy to decide in this case is whether the class

2    characteristic “frequently bears [a] relation to ability to

3    perform or contribute to society.”    Cleburne, 473 U.S. at

4    440-41; see Frontiero, 411 U.S. at 686 (“[W]hat

5    differentiates sex from such non-suspect statuses as

6    intelligence or physical disability, and aligns it with the

7    recognized suspect criteria, is that the sex characteristic

8    frequently bears no relation to ability to perform or

9    contribute to society.”).    In Cleburne, the Supreme Court

10   ruled that heightened scrutiny was inappropriate because

11   “those who are mentally retarded have a reduced ability to

12   cope with and function in the everyday world.”     473 U.S. at

13   442.    The Court employed similar reasoning with respect to

14   age classifications, finding that heightened scrutiny was

15   not appropriate for mandatory retirement laws because

16   “physical ability generally declines with age” and such

17   requirements reasonably “serve[d] to remove

18   from . . . service those whose fitness for uniformed work

19   presumptively has diminished with age.”     Murgia, 427 U.S. at

20   316.

21          There is no such impairment here.   There are some

22   distinguishing characteristics, such as age or mental

23   handicap, that may arguably inhibit an individual's ability

                                    27
1    to contribute to society, at least in some respect.     But

2    homosexuality is not one of them.     The aversion homosexuals

3    experience has nothing to do with aptitude or performance.

4        We do not understand BLAG to argue otherwise.     Rather,

5    BLAG suggests that the proper consideration is whether “the

6    classification turns on ‘distinguishing characteristics

7    relevant to interests the State has the authority to

8    implement,’” quoting Cleburne, 473 U.S. at 441.     Thus, BLAG

9    urges that same-sex couples have a diminished ability to

10   discharge family roles in procreation and the raising of

11   children.   BLAG cites no precedential application of that

12   standard to support its interpretation, and it is

13   inconsistent with actual cases.     See, e.g., Frontiero, 411

14   U.S. at 686 (distinguishing that sex, unlike intelligence,

15   has no bearing on one’s general ability to contribute to

16   society).   In any event, the abilities or inabilities cited

17   by BLAG bear upon whether the law withstands scrutiny (the

18   second step of analysis) rather than upon the level of

19   scrutiny to apply.   Cf. Clark v. Jeter, 

, 461

20   (1988) (defining the test for intermediate scrutiny as

21   whether a classification is “substantially related to an

22   important government interest”).

23

                                   28
1        C)    Distinguishing Characteristic

2         We conclude that homosexuality is a sufficiently

3    discernible characteristic to define a discrete minority

4    class.   See Rowland v. Mad River Local School Dist.,

5    Montgomery County, Ohio, 

, 1014 (1985)

6    (Brennan, J., dissenting from denial of certiorari)

7    (“[H]omosexuals constitute a significant and insular

8    minority of this country’s population.”).

9        This consideration is often couched in terms of

10   “immutability.”     BLAG and its amici argue that sexual

11   orientation is not necessarily fixed, suggesting that it may

12   change over time, range along a continuum, and overlap (for

13   bisexuals).   But the test is broader: whether there are

14   “obvious, immutable, or distinguishing characteristics that

15   define . . . a discrete group.”      See Bowen, 483 U.S. at 602

16   (emphasis added).     No “obvious badge” is necessary.     See

17   Mathews v. Lucas, 

, 506 (1976).      Classifications

18   based on alienage, illegitimacy, and national origin are all

19   subject to heightened scrutiny, Cleburne, 473 U.S. at 440-

20   41, even though these characteristics do not declare

21   themselves, and often may be disclosed or suppressed as a




                                     29
1    matter of preference.4   What seems to matter is whether the

2    characteristic of the class calls down discrimination when

3    it is manifest.

4        Thus a person of illegitimate birth may keep that

5    status private, and ensure that no outward sign discloses

6    the status in social settings or in the workplace, or on the

7    subway.   But when such a person applies for Social Security

8    benefits on the death of a parent (for example), the

9    illegitimate status becomes manifest.   The characteristic is

10   necessarily revealed in order to exercise a legal right.

11   Similarly, sexual preference is necessarily disclosed when



          4
            Alienage and illegitimacy are actually subject to
     change. See Pedersen, 

 at *23 (“The Supreme
     Court has held that resident aliens constitute a suspect
     class despite the ability to opt out of the class
     voluntarily. Additionally, one's status as illegitimate may
     be subject to change and is therefore not a strictly
     immutable characteristic.”) (internal citation omitted); see
     also Watkins v. U.S. Army, 

, 726 (9th Cir. 1989)
     (Norris, J., concurring) (“It is clear that by
     ‘immutability’ the [Supreme] Court has never meant strict
     immutability in the sense that members of the class must be
     physically unable to change or mask the trait defining their
     class. People can have operations to change their sex.
     Aliens can ordinarily become naturalized citizens. The
     status of illegitimate children can be changed. People can
     frequently hide their national origin by changing their
     customs, their names, or their associations. . . . At a
     minimum, then, the Supreme Court is willing to treat a trait
     as effectively immutable if changing it would involve great
     difficulty, such as requiring a major physical change or a
     traumatic change of identity.”).
                                   30
1    two persons of the same sex apply for a marriage license (as

2    they are legally permitted to do in New York), or when a

3    surviving spouse of a same-sex marriage seeks the benefit of

4    the spousal deduction (as Windsor does here).

5        BLAG argues that a classification based on sexual

6    orientation would be more “amorphous” than discrete.      It may

7    be that the category exceeds the number of persons whose

8    sexual orientation is outwardly “obvious, immutable, or

9    distinguishing,” and who thereby predictably undergo

10   discrimination.   But that is surely also true of

11   illegitimacy and national origin.   Again, what matters here

12   is whether the characteristic invites discrimination when it

13   is manifest.

14       The class affected by Section 3 of DOMA is composed

15   entirely of persons of the same sex who have married each

16   other.   Such persons constitute a subset of the larger

17   category of homosexuals; but as counsel for BLAG conceded at

18   argument, there is nothing amorphous, capricious, or

19   tentative about their sexual orientation.   Oral Arg. Tr.

20   12:11-14.   Married same-sex couples like Windsor and Spyer

21   are the population most visible to the law, and they are

22   foremost in mind when reviewing DOMA’s constitutionality.

23

                                   31
1        We therefore conclude that sexual orientation is a

2    sufficiently distinguishing characteristic to identify the

3    discrete minority class of homosexuals.

4        D)     Political Power

5        Finally, we consider whether homosexuals are a

6    politically powerless minority.    See Bowen, 483 U.S. at 602.

7    Without political power, minorities may be unable to protect

8    themselves from discrimination at the hands of the

9    majoritarian political process.    We conclude that

10   homosexuals are still significantly encumbered in this

11   respect.

12       The question is not whether homosexuals have achieved

13   political successes over the years; they clearly have.      The

14   question is whether they have the strength to politically

15   protect themselves from wrongful discrimination.      When the

16   Supreme Court ruled that sex-based classifications were

17   subject to heightened scrutiny in 1973, the Court

18   acknowledged that women had already achieved major political

19   victories.   See Frontiero, 411 U.S. at 685.   The Nineteenth

20   Amendment had been ratified in 1920, and Title VII had

21   already outlawed sex-based employment.    See 78 Stat. 253.

22   The Court was persuaded nevertheless that women still lacked

23   adequate political power, in part because they were “vastly

                                   32
1    underrepresented in this Nation’s decisionmaking councils,”

2    including the presidency, the Supreme Court, and the

3    legislature.   Frontiero, 411 U.S. at 686 n.17.

4        There are parallels between the status of women at the

5    time of Frontiero and homosexuals today: their position “has

6    improved markedly in recent decades,” but they still “face

7    pervasive, although at times more subtle,

8    discrimination . . . in the political arena.”     Frontiero,

9    411 U.S. at 685-86.   It is difficult to say whether

10   homosexuals are “under-represented” in positions of power

11   and authority without knowing their number relative to the

12   heterosexual population.   But it is safe to say that the

13   seemingly small number of acknowledged homosexuals so

14   situated is attributable either to a hostility that excludes

15   them or to a hostility that keeps their sexual preference

16   private--which, for our purposes, amounts to much the same

17   thing.   Moreover, the same considerations can be expected to

18   suppress some degree of political activity by inhibiting the

19   kind of open association that advances political agendas.

20   See Rowland, 470 U.S. at 1014 (Brennan, J., dissenting from

21   denial of certiorari) (“Because of the immediate and severe

22   opprobrium often manifested against homosexuals once so

23   identified publicly, members of this group are particularly

                                   33
1    powerless to pursue their rights openly in the political

2    arena.”).

3        In sum, homosexuals are not in a position to adequately

4    protect themselves from the discriminatory wishes of the

5    majoritarian public.

6                                * * *

7        Analysis of these four factors supports our conclusion

8    that homosexuals compose a class that is subject to

9    heightened scrutiny.   We further conclude that the class is

10   quasi-suspect (rather than suspect) based on the weight of

11   the factors and on analogy to the classifications recognized

12   as suspect and quasi-suspect.        While homosexuals have been

13   the target of significant and long-standing discrimination

14   in public and private spheres, this mistreatment “is not

15   sufficient to require ‘our most exacting scrutiny.’”

16   Trimble v. Gordon, 

, 767 (1977) (quoting Mathews

17   v. Lucas, 

, 506 (1976)).

18       The next step is to determine whether DOMA survives

19   intermediate scrutiny review.

20

21                                   IV

22       To withstand intermediate scrutiny, a classification

23   must be “substantially related to an important government
                                     34
1    interest.”    Clark v. Jeter, 

, 461 (1988).

2    “Substantially related” means that the explanation must be

3    “‘exceedingly persuasive.’”       United States v. Virginia, 518

, 533 (1996) (quoting Mississippi Univ. for Women v.

5    Hogan, 

, 724 (1982)).       “The justification must

6    be genuine, not hypothesized or invented post hoc in

7    response to litigation.”    Id.

8        BLAG advances two primary arguments for why Congress

9    enacted DOMA.    First, it cites “unique federal interests,”

10   which include maintaining a consistent federal definition of

11   marriage, protecting the fisc, and avoiding “the unknown

12   consequences of a novel redefinition of a foundational

13   social institution.”    Second, BLAG argues that Congress

14   enacted the statute to encourage “responsible procreation.”

15   At argument, BLAG’s counsel all but conceded that these

16   reasons for enacting DOMA may not withstand intermediate

17   scrutiny.    Oral Arg. Tr. 16:24-17:6.

18       A)      Maintaining a “Uniform Definition” of Marriage

19       Statements in the Congressional Record express an

20   intent to enforce uniform eligibility for federal marital

21   benefits by insuring that same-sex couples receive--or




                                       35
1    lose--the same federal benefits across all states.5

2    However, the emphasis on uniformity is suspicious because

3    Congress and the Supreme Court have historically deferred to

4    state domestic relations laws, irrespective of their

5    variations.

6        To the extent that there has ever been “uniform” or

7    “consistent” rule in federal law concerning marriage, it is

8    that marriage is “a virtually exclusive province of the

9    States.”    Sosna, 419 U.S. at 404.   As the Supreme Court has

10   emphasized, “the states, at the time of the adoption of the

11   Constitution, possessed full power over the subject of

12   marriage and divorce. . . . [T]he Constitution delegated no

13   authority to the Government of the United States on the

14   subject of marriage and divorce.”     Haddock v. Haddock, 201

, 575 (1906) (emphasis added), overruled on other

16   grounds by Williams v. State of North Carolina, 

17   (1942).    DOMA was therefore an unprecedented intrusion “into

18   an area of traditional state regulation.”    Massachusetts,

19   682 F.3d at 13.    This is a reason to look upon Section 3 of



          5
             For example, certain legislators were concerned that
     it would be administratively difficult to deal with benefit
     changes as same-sex couples moved between states with
     different policies on same-sex marriage. See, e.g., 150
     Cong. Rec. 15318 (2004) (Sen. Inhofe).
                                    36
1    DOMA with a cold eye.     “The absence of precedent . . . is

2    itself instructive; ‘[d]iscriminations of an unusual

3    character especially suggest careful consideration to

4    determine whether they are obnoxious to the constitutional

5    provision.’”     Romer v. Evans, 

, 633 (1996)

6    (quoting Louisville Gas & Elec. Co. v. Coleman, 

,

7    37-38 (1928)).

8        Moreover, DOMA’s sweep arguably creates more discord

9    and anomaly than uniformity, as many amici observe.      Because

10   DOMA defined only a single aspect of domestic relations law,

11   it left standing all other inconsistencies in the laws of

12   the states, such as minimum age, consanguinity, divorce, and

13   paternity.     See Br. of Amici Curiae Family Law Professors

14   Supporting Petitioner at 12-13 (noting that “the federal

15   government has always accepted the states’ different ways of

16   defining parental status” and offering numerous examples of

17   critical differences in state parental policies).

18       The uniformity rationale is further undermined by

19   inefficiencies that it creates.      As a district court in this

20   Circuit found, it was simpler--and more consistent--for the

21   federal government to ask whether a couple was married under

22   the law of the state of domicile, rather than adding “an

23   additional criterion, requiring the federal government to

                                     37
1    identify and exclude all same-sex marital unions from

2    federal recognition.”   Pedersen, 

 at *48; see

3    Golinski, 824 F. Supp. 2d at 1001-02 (“The passage of DOMA

4    actually undermined administrative consistency by requiring

5    that the federal government, for the first time, discern

6    which state definitions of marriage are entitled to federal

7    recognition and which are not.”).

8        Because DOMA is an unprecedented breach of longstanding

9    deference to federalism that singles out same-sex marriage

10   as the only inconsistency (among many) in state law that

11   requires a federal rule to achieve uniformity, the

12   rationale premised on uniformity is not an exceedingly

13   persuasive justification for DOMA.

14       B)   Protecting the Fisc

15       Another professed goal of Congress is to save

16   government resources by limiting the beneficiaries of

17   government marital benefits.   H.R. Rep. No. 104-664, at 18

18   (1996), reprinted in 1996 U.S.C.C.A.N. 2905, 2922.   Fiscal

19   prudence is undoubtedly an important government interest.

20   Windsor and certain amici contest whether the measure will

21   achieve a net benefit to the Treasury; but in matters of the

22   federal budget, Congress has the prerogative to err (if

23   error it is), and cannot be expected to prophesy the future

                                    38
1    accurately.     But the Supreme Court has held that “[t]he

2    saving of welfare costs cannot justify an otherwise

3    invidious classification.”     Graham v. Richardson, 

    365, 375 (1971) (quotation marks omitted).     As the district

5    court observed, “excluding any arbitrarily chosen group of

6    individuals from a government program conserves government

7    resources.”     Windsor, 833 F. Supp. 2d at 406 (quotation

8    marks).

9        Citing Bowen v. Owens, 

, 348 (1986), BLAG

10   draws the distinction that DOMA did not withdraw benefits

11   from same-sex spouses; since DOMA was enacted before same-

12   sex marriage was permitted in any state, DOMA operated to

13   prevent the extension of benefits to people who never

14   enjoyed them.     However, Bowen was decided on rational basis

15   grounds and did not involve an invidious classification.

16   Id. at 349-50.     Moreover, DOMA is properly considered a

17   benefit withdrawal in the sense that it functionally

18   eliminated longstanding federal recognition of all marriages

19   that are properly ratified under state law--and the federal

20   benefits (and detriments) that come with that recognition.

21       Furthermore, DOMA is so broad, touching more than a

22   thousand federal laws, that it is not substantially related

23   to fiscal matters.     As amicus Citizens for Responsibility

                                     39
1    and Ethics in Washington demonstrates, DOMA impairs a number

2    of federal laws (involving bankruptcy and conflict-of-

3    interest) that have nothing to do with the public fisc.         See

4    Br. of Amicus Curiae Citizens for Responsibility and Ethics

5    in Washington at 5-11, 18-23.        DOMA transcends a legislative

6    intent to conserve public resources.

7        For these reasons, DOMA is not substantially related to

8    the important government interest of protecting the fisc.

9        C) Preserving a Traditional Understanding of Marriage

10       Congress undertook to justify DOMA as a measure for

11   preserving traditional marriage as an institution.        150

12   Cong. Rec. 14951.    But “[a]ncient lineage of a legal concept

13   does not give [a law] immunity from attack for lacking a

14   rational basis.”    Heller, 509 U.S. at 326.      A fortiori,

15   tradition is hard to justify as meeting the more demanding

16   test of having a substantial relation to an important

17   government interest.    Similar appeals to tradition were made

18   and rejected in litigation concerning anti-sodomy laws.         See

19   Lawrence, 539 U.S. at 577-78 (“‘[T]he fact that the

20   governing majority in a State has traditionally viewed a

21   particular practice as immoral is not a sufficient reason

22   for upholding a law prohibiting the practice; neither

23   history nor tradition could save a law prohibiting

                                     40
1    miscegenation from constitutional attack.’”) (quoting

2    Bowers, 478 U.S. at 216 (Stevens, J., dissenting)) (emphasis

3    added).

4        Even if preserving tradition were in itself an

5    important goal, DOMA is not a means to achieve it.      As the

6    district court found: “because the decision of whether

7    same-sex couples can marry is left to the states, DOMA does

8    not, strictly speaking, ‘preserve’ the institution of

9    marriage as one between a man and a woman.”     Windsor, 

   Supp. at 403.

11       Preservation of a traditional understanding of marriage

12   therefore is not an exceedingly persuasive justification for

13   DOMA.

14       D)    Encouraging Responsible Procreation

15       Finally, BLAG presents three related reasons why DOMA

16   advances the goals of “responsible childrearing”:    DOMA

17   subsidizes procreation because only opposite-sex couples can

18   procreate “naturally”; DOMA subsidizes biological parenting

19   (for more or less the same reason); and DOMA facilitates the

20   optimal parenting arrangement of a mother and a father.      We

21   agree that promotion of procreation can be an important

22   government objective.   But we do not see how DOMA is

23   substantially related to it.

                                    41
1        All three proffered rationales have the same defect:

2    they are cast as incentives for heterosexual couples,

3    incentives that DOMA does not affect in any way.   DOMA does

4    not provide any incremental reason for opposite-sex couples

5    to engage in “responsible procreation.”6   Incentives for

6    opposite-sex couples to marry and procreate (or not) were

7    the same after DOMA was enacted as they were before.7   Other

8    courts have likewise been unable to find even a rational

9    connection between DOMA and encouragement of responsible

10   procreation and child-rearing.    See Massachusetts, 

1   at 14-15 (underscoring the “lack of any demonstrated

12   connection between DOMA’s treatment of same-sex couples and

13   its asserted goal of strengthening the bonds and benefits to

14   society of heterosexual marriage”) (citations omitted);

15   Windsor, 833 F. Supp. at 404-05; Pedersen, 

,

16   at *40-43.

17


          6
            “[T]he argument that withdrawing the designation of
     ‘marriage’ from same-sex couples could on its own promote
     the strength or stability of opposite-sex marital
     relationships lacks any such footing in reality.” Perry v.
     Brown, 

, 1089 (9th Cir. 2012).
          7
            To the extent that BLAG is suggesting that Congress’
     laws might actually influence sexual orientation, there is
     no evidence to support that claim (and it strikes us as far-
     fetched).
                                  42
1        DOMA is therefore not substantially related to the

2    important government interest of encouraging procreation.

3                                  ***

4        DOMA’s classification of same-sex spouses was not

5    substantially related to an important government interest.

6    Accordingly, we hold that Section 3 of DOMA violates equal

7    protection and is therefore unconstitutional.

8

9                                   V

10       Our straightforward legal analysis sidesteps the fair

11   point that same-sex marriage is unknown to history and

12   tradition.    But law (federal or state) is not concerned with

13   holy matrimony.    Government deals with marriage as a civil

14   status--however fundamental--and New York has elected to

15   extend that status to same-sex couples.    A state may enforce

16   and dissolve a couple’s marriage, but it cannot sanctify or

17   bless it.    For that, the pair must go next door.

18

19                              CONCLUSION

20       For the foregoing reasons, we AFFIRM the grant of

21   Windsor’s motion for summary judgment.




                                    43
 1   STRAUB, Circuit Judge, dissenting in part and concurring in part:

 2                                           INTRODUCTION

 3          I respectfully dissent in part and concur in part.

 4          I concur with those parts of the majority opinion that (1) deny BLAG’s motion to dismiss

 5   the appeal taken by the United States, and (2) decline to certify to the New York Court of

 6   Appeals the question of whether the State of New York recognized Windsor’s marriage at the

 7   time of her wife’s death. For the reasons that follow, I dissent from the majority’s holding that

 8   DOMA is unconstitutional under the Fifth Amendment’s equal protection guarantee.

 9          The majority holds DOMA unconstitutional, a federal law which formalizes the

10   understanding of marriage in the federal context extant in the Congress, the Presidency, and the

11   Judiciary at the time of DOMA’s enactment and, I daresay, throughout our nation’s history. If

12   this understanding is to be changed, I believe it is for the American people to do so.

13          Forty years ago, the United States Supreme Court was presented with the essentially

14   identical challenge we have here. The then DOMA-like Minnesota law was upheld in that state’s

15   highest court because it found that the right to marry without regard to sex was not a

16   fundamental right and the law’s thrust was not irrational or invidious discrimination. The

17   Supreme Court of Minnesota held that the applicable Minnesota statute defining marriage as a

18   union between a man and a woman did not violate the United States Constitution. Upon their

19   appeal to the United States Supreme Court, the plaintiffs’ jurisdictional statement squarely

20   claimed that Minnesota’s same-sex marriage prohibition violated their equal protection rights.

21   The Supreme Court, in dismissing the appeal for “want of a substantial federal question,”

22   obviously found no constitutional infirmity in that DOMA-like Minnesota law. I am unable to


                                                      -1-
 1   conclude, as it is suggested we should, that the Supreme Court of the United States would have

 2   held as it did had it concluded that the Minnesota law was unconstitutional—at a time when it

 3   was required to accept the appellate challenge. The Supreme Court made a merits decision, and

 4   has never walked away from it or ever suggested that its disposition elided a merits

 5   determination on some procedural basis. It has further instructed us that such a disposition,

 6   albeit summary, rejects the challenge presented in the jurisdictional statement and is binding on

 7   the lower federal courts. And, as recently as 2003, Justice O’Connor reminded us that rational

 8   reasons exist to promote the traditional institution of marriage. Baker dictates my decision.

 9          Furthermore, it is argued here that we are to disregard this binding precedent and the

10   traditionally applicable rational basis standard of review and, instead, now create a new type of

11   suspect classification requiring a heightened level of scrutiny in respect of the federal definition

12   of marriage. The Supreme Court has never done so, while reminding us to be wary of creating

13   any new such classification and itself not having created any in decades. I believe it would be

14   imprudent to do so in this case. Eleven of our nation’s federal Circuit Courts of Appeals have

15   not utilized an elevated form of scrutiny as to sexual orientation discrimination. Most recently,

16   the First Circuit went to the extreme of creating a new, increased level of rational basis analysis.

17   This appears to be the first case in which this Court is asked to do the same or more, and the

18   majority is the first to apply intermediate scrutiny to invalidate the federal definition of marriage

19   as between a man and a woman. The discrimination in this case does not involve a recognized

20   suspect or quasi-suspect classification. It is squarely about the preservation of the traditional

21   institution of marriage and its procreation of children. DOMA centers on legitimate state

22   interests that go beyond mere moral disapproval of an excluded group. DOMA’s classification is


                                                      -2-
 1   to be reviewed on the basis of whether it has a rational relation to any legitimate end. Utilizing

 2   that standard, I conclude that DOMA is constitutional. The rational basis standard is most

 3   deferential to the determinations of the Congress. Such may be conclusory and are not to be

 4   tried in the traditional fact-oriented process. The public policy choice set forth in DOMA is to be

 5   made by Congress, not the Judiciary. In DOMA, Congress has set the boundaries for marriage—

 6   all in keeping with American society’s historical view of a marriage as being between a man and

 7   a woman. This is not the first time the Congress has signaled its intentions in various definitions

 8   of eligibility for federal purposes as to children, marriage, and domestic relations. These have at

 9   times conflicted with state laws but the federal law has always prevailed for federal purposes.

10          The Congress had the benefit of advice from the Department of Justice that DOMA is

11   constitutional. The Congress decided to codify what had always been implicit in federal law.

12   The history of federal legislation in respect of the meaning of marriage or spouse was never even

13   suggested to mean anything other than the lawful union of one man and one woman for all

14   federal purposes. The nation’s traditional understanding was memorialized in DOMA. Congress

15   explicitly sought to recognize for federal purposes the significance of our historical

16   understanding of a mainstream value, joining the biological component of the marriage

17   relationship to the legal responsibility of rearing the offspring of that union. The Congress

18   referenced its intention to sanction, for federal purposes, society’s desire to approve the man and

19   woman long term union as the ideal by which to beget and rear children. Indeed, state high

20   courts—as in New York—have credited their legislature’s rational decisions to promote the

21   welfare of children via opposite-sex marriage laws. Further, Congress has articulated, as another

22   legitimate reason for DOMA, that the federal fisc as well as America’s desired right to equitable


                                                     -3-
 1   distribution of benefits should not be based on the particularity or peculiarity of any state’s

 2   definition of marriage, but rather the federal government is entitled to codify a single definition

 3   of marriage as historically understood.

 4          The Congress was uniform and consistent. And, it chose not to rush ahead with a

 5   redefinition at a time when all the states utilized the traditional definition of marriage. It chose to

 6   let the issue evolve within American society. The Congress accomplished its task in a manner

 7   which continues to respect the principle of federalism. The states remain free to define marriage

 8   as they choose, pursuant to DOMA. And, forty-one of our states continue to define marriage as

 9   DOMA does. The totality of the foregoing is sufficient to hold DOMA constitutional under the

10   rational basis standard. Even the majority opinion, while ultimately holding DOMA

11   unconstitutional under a higher level of scrutiny, appears to imply that DOMA passes rational

12   basis review. (Maj. Op. at 22:3–9.)

13          My final observation relates to the Attorney General’s current position. His assertion that

14   sexual orientation is a suspect classification and that DOMA fails to pass strict scrutiny is

15   recently minted, and is contrary to an established body of cases to the contrary. The Attorney

16   General’s position is unprecedented in its departure from the Department of Justice’s long-

17   standing policy of defending federal statutes even if the President disagrees as a matter of policy.

18          At bottom, the issue here is marriage at the federal level for federal purposes, and not

19   other legitimate interests. The Congress and the President formalized in DOMA, for federal

20   purposes, the basic human condition of joining a man and a woman in a long-term relationship

21   and the only one which is inherently capable of producing another generation of humanity.

22   Whether that understanding is to continue is for the American people to decide via their choices


                                                      -4-
 1   in electing the Congress and the President. It is not for the Judiciary to search for new standards

 2   by which to negate a rational expression of the nation via the Congress.

 3                                                    DISCUSSION

 4   I.       The Origin and Impact of DOMA

 5            DOMA was enacted in 1996 in response to the possible end to the exclusion of same-sex

 6   couples from civil marriage in Hawaii. In Baehr v. Lewin, 

 (Haw. 1993), the Hawaii

 7   Supreme Court held that denying same-sex couples the right to marry must be justified under

 8   strict scrutiny, and remanded for further proceedings consistent with this determination.1 The

 9   House Judiciary Committee’s Report on DOMA (the “House Report”) described Baehr as part of

10   an “orchestrated legal assault being waged against traditional heterosexual marriage.” See H.R.

11   Rep. No. 104-664, at 2–3 (1996), reprinted in 1996 U.S.C.C.A.N. 2905, 2906–07 (“House

12   Report” or “H. Rep.”).

13            DOMA has two key provisions. Section 2, the choice-of-law section, states:

14                     No State, territory, or possession of the United States, or Indian
15                     tribe, shall be required to give effect to any public act, record, or
16                     judicial proceeding of any other State, territory, possession, or tribe
17                     respecting a relationship between persons of the same sex that is
18                     treated as a marriage under the laws of such other State, territory,
19                     possession, or tribe, or a right or claim arising from such
20                     relationship.

21   28 U.S.C. § 1738C. This provision expresses Congress’s desire to prevent a situation where one

22   state would be forced to recognize same-sex marriages performed and recognized in a different

23   state.

     1
       Same-sex marriage never became law in Hawaii because, following Baehr, the Hawaii Constitution was amended
     to allow for the legislative prohibition of same-sex marriage. See Haw. Const. art. I, § 23. But, this did not occur
     until after DOMA was enacted.

                                                              -5-
 1          Section 3, the definitional section of DOMA, provides:

 2                  In determining the meaning of any Act of Congress, or of any
 3                  ruling, regulation, or interpretation of the various administrative
 4                  bureaus and agencies of the United States, the word “marriage”
 5                  means only a legal union between one man and one woman as
 6                  husband and wife and the word “spouse” refers only to a person of
 7                  the opposite sex who is a husband or a wife.

 8   1 U.S.C. § 7. This provision articulates Congressional recognition, for federal purposes, that

 9   marriage is the union of a man and a woman.

10          The House Report indicates that several motivations led Congress to pass DOMA. It

11   identifies four “governmental interests advanced by this legislation: (1) defending and nurturing

12   the institution of traditional, heterosexual marriage; (2) defending traditional notions of morality;

13   (3) protecting state sovereignty and democratic self-governance; and (4) preserving scarce

14   government resources.” (H. Rep. at 12–18.) The House Report also justifies DOMA as a means

15   to “encourag[e] responsible procreation and child-rearing,” H. Rep. at 13, and as a way to reflect

16   Congress’s “moral disapproval of homosexuality, and a moral conviction that heterosexuality

17   better comports with traditional (especially Judeo-Christian) morality.” (H. Rep. at 16.)

18          Given the broad range of federal laws to which marital status is relevant, the

19   consequences of DOMA are far-reaching. In addition to preventing a surviving same-sex spouse

20   like Windsor from inheriting money or property free from an estate tax, DOMA prevents same-

21   sex married couples from lessening tax burdens by filing joint federal tax returns, see 26 U.S.C.

22   § 1(a)-(c); prevents the surviving spouse of a same-sex marriage from collecting Social Security

23   survivor benefits, see, e.g., 42 U.S.C. § 402; and prevents federal employees from sharing their

24   health insurance and certain other medical benefits with same-sex spouses. As a result of

25   DOMA, married same-sex couples are deprived of many other, lesser-known rights, benefits, and
                                                -6-
 1   privileges including, inter alia, benefits relating to intellectual property; housing benefits;

 2   veteran’s benefits; immigration entitlements (same-sex spouses are the only legally married

 3   spouses of American citizens who can face deportation); employment benefits in the private

 4   sector (including sick leave to care for one’s spouse under the Family and Medical Leave Act);

 5   and protections relating to domestic and intimate partner crimes and family violence.

 6           In sum, DOMA codifies, for purposes of federal statutes, regulations, and rulings, the

 7   understanding of marriage as “only a legal union between one man and one woman as husband

 8   and wife,” see 1 U.S.C. § 7, and it reserves to each state the ability to retain that definition as its

 9   policy if the state so chooses, or to alter it, as it sees fit. See 28 U.S.C. § 1738C. In enacting

10   DOMA, therefore, Congress (1) maintained the status quo as to the federal definition of marriage

11   for the purposes of federal programs and benefits; and (2) recognized the right of any state to

12   allow gays and lesbians to marry while, at the same time, permitting other states to adhere to

13   their existing understandings of the institution of marriage.

14   II.     Standard of Review

15           We review a grant of summary judgment de novo. Bank of N.Y. v. First Millennium, Inc.,

16   

, 914 (2d Cir. 2010). Summary judgment is appropriate only if “there is no genuine

17   dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.

. P. 56(a). A fact is material “if it ‘might affect the outcome of the suit under the

19   governing law,’” and “[a]n issue of fact is ‘genuine’ if ‘the evidence is such that a reasonable

20   jury could return a verdict for the nonmoving party.’” Holtz v. Rockefeller & Co., 

,

21   69 (2d Cir. 2001) (quoting Anderson v. Liberty Lobby, Inc., 

, 248 (1986)).




                                                       -7-
 1          There being no dispute as to the material facts in this matter, I find, as a matter of law,

 2   that DOMA is constitutional.

 3   III.   The Precedential Effect of Baker v. Nelson

 4          The majority concludes that Windsor’s claim is not foreclosed by the Supreme Court’s

 5   summary dismissal in Baker v. Nelson, 

 (1972). In Baker, a same-sex couple

 6   seeking the right to marry challenged a Minnesota law that limited marriage to opposite-sex

 7   couples on the grounds that it violated due process and equal protection, as it unconstitutionally

 8   discriminated on the basis of sex. Baker v. Nelson, 

 (Minn. 1971). The

 9   Minnesota Supreme Court, applying rational basis review, upheld the statute because it found the

10   right to marry without regard to sex was not fundamental, and because classifying who can

11   marry based on sex was not “irrational or invidious discrimination.” Id. at 187. The Court

12   reasoned that “[i]t is unrealistic to think that the original draftsmen of our marriage statutes,

13   which date from territorial days, would have used the term” to mean anything other than “the

14   state of union between persons of the opposite sex.” Id. at 186. In so doing, the Court found

15   support in the 1966 version of Webster’s Third New International Dictionary, the fourth edition

16   of Black’s Law Dictionary, the Book of Genesis, and Skinner v. Oklahoma, which declared that

17   “[m]arriage and procreation are fundamental to the very existence and survival of the race.” 316

, 541 (invalidating Oklahoma’s Habitual Criminal Sterilization Act under the Fourteenth

19   Amendment’s Equal Protection Clause).

20          The Minnesota Supreme Court rejected petitioners’ reliance on Griswold v. Connecticut,

21   

 (1965), and Loving v. Virginia, 

 (1967). The Minnesota Supreme Court

22   held that the privacy right recognized in Griswold was “inherent in the marital relationship,” and


                                                       -8-
 1   that Loving did not militate in favor of petitioners because “Virginia’s anti-miscegenation

 2   statute . . . was invalidated solely on the grounds of its patent racial discrimination.” Id. at 186–

 3   87. The Court concluded that in both a “commonsense and in a constitutional sense, there is a

 4   clear distinction between a martial restriction based merely upon race and one based upon the

 5   fundamental difference in sex.” Id. at 187. The United States Supreme Court summarily

 6   dismissed the appeal of the Minnesota Supreme Court’s ruling for “want of a substantial federal

 7   question.” Baker, 409 U.S. at 810.

 8          The equal protection guarantee of the Fifth Amendment, which applies to the federal

 9   government, functions identically to the Equal Protection Clause of the Fourteenth Amendment,

10   which applies to the states. See Adarand Constructors, Inc. v. Pena, 

, 217 (1995).

11   Therefore, jurisprudence interpreting one applies to the other. It follows that any ruling of the

12   Supreme Court on a Fourteenth Amendment equal protection challenge to the denial of same-sex

13   marriage applies with equal force to an equal protection challenge to the denial of same-sex

14   marriage under the Fifth Amendment.

15          According to the jurisdictional statement of the appellants in Baker, the case presented,

16   inter alia, the question of “[w]hether appellee’s refusal, pursuant to Minnesota marriage statutes,

17   to sanctify appellants’ marriage because both are of the male sex violates their rights under the

18   equal protection clause of the Fourteenth Amendment.” (JA-695.) The question presented here,

19   by Windsor, can be formulated in a strikingly similar fashion: “Whether Section 3 of the

20   Defense of Marriage Act is consistent with the equal protection component of the Fifth

21   Amendment Due Process Clause.” (DOJ Br. at 2.)




                                                      -9-
 1           Baker is a disposition on the merits, not a mere denial of certiorari, Hicks v. Miranda, 422

 

, 344 (1975), and any ruling inconsistent with its terms must be avoided. “[L]ower

 3   courts are bound by summary decisions by this Court until such time as the Court informs (them)

 4   that (they) are not.” Hicks, 422 U.S. at 344–45 (internal quotation omitted).

 5           A summary dismissal means that “the Court found that the decision below was correct

 6   and that no substantial question of the merits was raised.” E. Gressman, et al., Supreme Court

 7   Practice § 5.18, p.365 (9th ed. 2007). See also Roxbury Taxpayers Alliance v. Del. Cnty. Bd. of

 8   Supervisors, 

, 48 (2d Cir. 1996) (recognizing dismissal for want of a substantial

 9   federal question as “a decision on the merits of the case”); Port Auth. Bondholders Protective

10   Comm. v. Port of N.Y. Auth., 

, 262 n.3 (2d Cir. 1967) (“[U]nless and until the

11   Supreme Court should instruct otherwise, inferior federal courts had best adhere to the view that

12   if the Court has branded a question as unsubstantial, it remains so except when doctrinal

13   developments indicate otherwise.”); cf. Doe v. Hodgson, 

, 539 (2d Cir. 1973)

14   (rejecting argument that summary dispositions have “very little precedential significance” and

15   stating that “we are bound by the Supreme Court’s summary affirmances until such time as the

16   Court informs us that we are not”) (internal quotation omitted). Thus, Baker squarely rejected

17   the contention that prohibiting same-sex marriages violated equal protection.2

18           Whatever factual differences exist between the challenge to the Minnesota law presented

19   in Baker and Windsor’s challenge to DOMA, they are too attenuated to remove the instant case

20   from the scope of Baker’s precedential effect. Although the facts in this case are not identical to


     2
      1988 legislation curtailing the Supreme Court’s appellate jurisdiction did not change the precedential import of
     summary dispositions. “Abolition of the [mandatory] appeal jurisdiction does not change this rule.” 16B Charles
     Alan Wright & Arthur R. Miller, et al., Federal Practice & Procedure § 4014 (2d ed. 2012).

                                                            -10-
1    those in Baker, the “precedential value of a dismissal for want of a substantial federal question

2    extends beyond the facts of the particular case to all similar cases.” Wright v. Lane Cnty. Dist.

3    Court, 

, 941 (9th Cir. 1981); see also League of Women Voters of Nassau Cnty. v.

4    Nassau Cnty. Bd. of Supervisors, 

, 164 (2d Cir. 1984) (the court’s “responsibility in

5    gauging [a summary disposition’s] authority . . . is to mark out the ‘reach and content’ of that

6    prior disposition”).

 7          The same-sex couple in Baker argued that Minnesota’s exclusion of same-sex couples

 8   from the institution of civil marriage violated the Equal Protection Clause because it was

 9   discrimination not rationally related to any legitimate governmental interest. Forty years may

10   have passed, but Windsor makes the same claim today (based on, inter alia, similar arguments

11   regarding the over-and under-inclusiveness of the limitation on the marriage right vis-à-vis the

12   procreation rationale). Whatever differences exist between Windsor’s claim and those advanced

13   in Baker, they are insignificant compared to the central fact that both cases present equal

14   protection challenges to laws prohibiting the recognition of any marriage entered into by two

15   persons of the same sex. Thus, any distinctions do not render DOMA sufficiently different from

16   Minnesota’s marriage law at the time of Baker such that it can be said the issues in this case were

17   not before and decided by the Supreme Court. The relevant facts of this case are substantially

18   similar to those of Baker, which necessarily decided that a state law defining marriage as a union

19   between a man and woman does not violate the Equal Protection Clause. Baker is the last word

20   from the Supreme Court regarding the constitutionality of a state law limiting marriage to

21   opposite-sex couples under the Equal Protection Clause and thus remains binding on this Court,




                                                     -11-
 1   given that the equal protection component of the Fifth Amendment is identical to and

 2   coextensive with the Fourteenth Amendment guarantee.

 3          Since Baker holds that states may use the traditional definition of marriage for state

 4   purposes without violating equal protection, it necessarily follows that Congress may define

 5   marriage the same way for federal purposes without violating equal protection. See Citizens for

 6   Equal Prot. v. Bruning, 

, 870 (8th Cir. 2006) (“In the nearly one hundred and fifty

 7   years since the Fourteenth Amendment was adopted, to our knowledge no Justice of the Supreme

 8   Court has suggested that a state statute or constitutional provision codifying the traditional

 9   definition of marriage violates the Equal Protection Clause or any other provision of the United

10   States Constitution.”); McConnell v. Nooner, 

, 56 (8th Cir. 1976) (per curiam) (Baker

11   “constitutes an adjudication on the merits which is binding on the lower federal courts”); Adams

12   v. Howerton, 

, 1124 (C.D. Cal. 1980) (finding Baker controlling in case where

13   same-sex spouse appealed denial of petition with INS to be classified as “immediate relative”),

14   aff’d, 

, 1039 n.2 (9th Cir. 1982) (acknowledging precedential nature of Baker);

. Ake, 

, 1305 (M.D. Fla. 2005) (Baker is “binding precedent” with

16   “dispositive effect” requiring dismissal of equal protection challenge to DOMA).

17          The correctness of the Baker holding was placed squarely before the Supreme Court in

18   that case’s jurisdictional statement. The Court’s summary dismissal for want of a substantial

19   federal question is therefore a controlling precedent, unless and until re-examined by the

20   Supreme Court. Hicks, 422 U.S. at 343–45. “The Court neither acknowledges nor holds that

21   other courts should ever conclude that its more recent cases have, by implication, overruled an

22   earlier precedent. Rather, lower courts should follow the case which directly controls, leaving to


                                                     -12-
1    this Court the prerogative of overruling its own decisions.” Agostini v. Felton, 

, 207

 2   (1997).3

 3           The close resemblance between the issue presented in Baker and the claim advanced by

 4   Windsor means that the scope of Baker controls the question raised by this appeal, foreclosing

 5   Windsor’s claim. That is, both cases involve the validity of same-sex couples’ deprivation of

 6   marriage rights, a question already presented to and adjudicated on the merits by the Supreme

 7   Court. In addition, if, as Baker held, denying same-sex couples the right to marry does not

 8   violate equal protection, it follows that denying same-sex couples a subset of the rights (i.e.,

 9   federal rights) associated with marriage is also constitutional. This conclusion is inescapable.

10   For the sake of completeness, in the event that there is any doubt that Baker forecloses

11   Windsor’s claim, I now proceed to consider the merits.

12   IV.     Principles of Equal Protection Analysis

13           “The Due Process Clause of the Fifth Amendment assures every person the equal

14   protection of the laws, ‘which is essentially a direction that all persons similarly situated should

15   be treated alike.’” Able v. United States, 

, 631 (2d Cir. 1998) (quoting City of

16   Cleburne v. Cleburne Living Ctr., Inc., 

, 439 (1985)).

     3
       Although we have noted that questions may stop being “insubstantial” when subsequent doctrinal developments so
     indicate, Port Auth. Bondholders, 387 F.2d at 263 n.3, the Supreme Court has never, despite the numerous
     developments in the last forty years, stated that its holding in Baker is invalid. I am not convinced by Windsor’s
     arguments that the Supreme Court’s decisions in Romer v. Evans and Lawrence v. Texas have eroded Baker’s
     foundations such that it no longer holds sway.

     In Romer, the Supreme Court applied rational basis scrutiny to laws that discriminated on the basis of sexual
     orientation. In Lawrence, the Supreme Court expressly stated that “[t]he present case does not involve . . . whether
     the government must give formal recognition to any relationship that homosexual persons seek to enter.” Lawrence,
     539 U.S. at 578. Consequently, there are no doctrinal changes in Supreme Court jurisprudence implying that Baker
     is no longer binding authority and Baker’s effect therefore hinges on whether the issues in this case were presented
     to and necessarily decided by the Supreme Court.

                                                            -13-
 1          When the subject of unequal treatment is a member of a class that historically has been

 2   the object of discrimination, or government conduct employs a classification—inter alia, race,

 3   alienage, nationality, sex, and illegitimacy—closely associated with inequality, “the Supreme

 4   Court has required a higher degree of justification than a rational basis, either strict or

 5   intermediate scrutiny. Under the strict scrutiny test the government must demonstrate a

 6   compelling need for the different treatment and that the provision in question is narrowly tailored

 7   to achieve its objective. Under intermediate scrutiny, the government must at least demonstrate

 8   that the classification is substantially related to an important governmental objective.” Id. at

 9   631–32 (internal citations omitted).

10          Where no suspect classification is employed or fundamental right infringed upon by

11   government conduct, the constitutional guarantee of equal protection is satisfied where a

12   classification bears a rational relationship to an appropriate governmental interest. See Heller v.

13   Doe, 

, 320 (1993). In evaluating whether the asserted purposes of a federal law are

14   rationally related to its ends, we defer to the judgment of Congress. Congressional enactments

15   that do not infringe upon a fundamental right or employ a suspect classification are entitled to “a

16   strong presumption of validity,” and must be sustained if “‘there is any reasonably conceivable

17   state of facts that could provide a rational basis for the classification.’” Id. at 319–20 (quoting

18   FCC v. Beach Commc’ns, Inc., 

, 313 (1993)). Rational basis review in an equal

19   protection analysis does not authorize “‘the judiciary [to] sit as a superlegislature to judge the

20   wisdom or desirability of legislative policy determinations made in areas that neither affect

21   fundamental rights nor proceed along suspect lines.’” Id. at 319 (quoting New Orleans v. Dukes,

22   

, 303 (1976)).


                                                      -14-
 1           Unlike under heightened scrutiny, in a rational basis equal protection analysis courts look

 2   to any “conceivable basis” for the challenged law, not limited to those articulated by or even

 3   consistent with the rationales offered by the legislature. Beach Commc’ns, 508 U.S. at 312.4

 4   Those attacking the rationality of a legislative classification have the burden “to negative every

 5   conceivable basis which might support it.” Lehnhausen v. Lake Shore Auto Parts Co., 

   356, 364 (1973) (internal quotation omitted). “The Constitution presumes that, absent some

 7   reason to infer antipathy, even improvident decisions will eventually be rectified by the

 8   democratic process and that judicial intervention is generally unwarranted no matter how

 9   unwisely we may think a political branch has acted.” Vance v. Bradley, 

, 97 (1979)

10   (footnote omitted). “[A] law will be sustained if it can be said to advance a legitimate

11   government interest, even if the law seems unwise or works to the disadvantage of a particular

12   group, or if the rationale for it seems tenuous.” Romer v. Evans, 

, 632 (1996).

13   Under the rational review framework, where there are “plausible reasons” for Congressional

14   action, a court’s “inquiry is at an end.” U.S. R.R. Ret. Bd. v. Fritz, 

, 179 (1980).

15   This standard of review is “a paradigm of judicial restraint.” Beach Commc’ns, 508 U.S. at 314.

16   “[C]ourts are compelled under rational-basis review to accept a legislature’s generalizations even

17   when there is an imperfect fit between means and ends.” Heller, 509 U.S. at 321. “Only by

18   faithful adherence to th[e] guiding principle of [restraint in] judicial review of legislation is it

19   possible to preserve to the legislative branch its rightful independence and its ability to function.”

20   Beach Commc’ns, 508 U.S. at 315 (internal quotation omitted).


     4
       Indeed, in Beach Communications, the Supreme Court upheld the challenged law using a posited reason for a
     federal agency regulation, even though Congress had previously rejected that purpose and the regulation presented a
     conflict in the statutory scheme. Id. at 318.

                                                            -15-
1           Having a conceivable legitimate governmental interest is, alone, not sufficient for rational

2    basis review. To survive rational basis review, a law must also have a rational relationship to the

3    asserted legitimate governmental interest. In assessing the existence of a rational relationship,

4    courts should be guided by the knowledge that rational basis review is “the most relaxed and

5    tolerant form of judicial scrutiny under the Equal Protection Clause.” City of Dallas v. Stanglin,

6    

, 26 (1989).

 7          However, even under rational basis review, a law will fail if it seeks to further an

 8   illegitimate end. For example, “the accommodation of . . . bias or animosity can never serve as a

 9   legitimate government interest; mere negative attitudes, or fear, unsubstantiated by factors which

10   are properly cognizable in the circumstances, are not permissible bases for differential treatment

11   by the government.” Able, 155 F.3d at 634 (internal quotations omitted). Laws that single out a

12   certain class of citizens for disfavored legal status “raise the inevitable inference that the

13   disadvantage imposed is born of animosity toward the class of persons affected.” Romer, 517

14   U.S. at 633–34. And such animosity cannot constitute a legitimate governmental objective.

15   Dep’t of Agric. v. Moreno, 

, 534 (1973).

16          Where the discrimination challenged is motivated both by impermissible purposes (e.g.,

17   animus, negative attitudes, malice, fear, the desire to harm a group, moral disapproval,

18   ignorance) and permissible purposes (under rational basis review, virtually any goal not

19   forbidden by the Constitution), the law may still be constitutionally valid. While “negative

20   attitudes,” “fear” or other biases “may often accompany irrational (and therefore

21   unconstitutional) discrimination, their presence alone does not a constitutional violation make.”

22   Bd. of Trs. of Univ. of Ala. v. Garrett, 

, 367 (2001).


                                                      -16-
 1          Because any single valid rationale is sufficient to support DOMA’s constitutionality, I

 2   analyze only as many possible interests as necessary to sustain the law. See F.C.C. v. Beach

 3   Commc’n, Inc., 

, 317 (1993). I find that several of BLAG’s rationale suffice to

 4   satisfy constitutional scrutiny.

 5   V.     DOMA Survives Rational Basis Review

 6          The House Report identifies four governmental interests advanced by DOMA:

 7   “(1) defending and nurturing the institution of traditional, heterosexual marriage; (2) defending

 8   traditional notions of morality; (3) protecting state sovereignty and democratic self-governance;

 9   and (4) preserving scarce government resources.” (H. Rep. at 12.)

10          BLAG contends that DOMA is supported by six rationales, all of which independently

11   justify the legislation under rational basis review. DOMA, it is argued, advances governmental

12   interest in: (1) maintaining a uniform federal definition of marriage, (2) preserving the public

13   fisc and respecting prior legislative judgments, (3) exercising caution, (4) recognizing opposite-

14   sex couples’ unique ability to procreate, (5) incentivizing the raising of children by their

15   biological parents, and (6) encouraging childrearing in a setting with both a mother and a father.

16          At oral argument, the Department of Justice confirmed that in 1996, in “a couple of

17   different letters,” it indicated to Congress that it believed “courts would uphold section three of

18   DOMA.” (Oral Arg. Tr. 42:8–14.) Specifically, in a letter dated May 14, 1996, the Department

19   of Justice indicated to the Honorable Henry J. Hyde, Chairman of the House Committee on the

20   Judiciary, that “[t]he Department of Justice believes that H.R. 3396 [DOMA] would be sustained

21   as constitutional.” (H. Rep. at 32.) On May 29, 1996, the Department of Justice again advised

22   Congress, in a letter to the Honorable Charles T. Canady, Chairman of the House Subcommittee


                                                     -17-
 1   on the Constitution (Committee on the Judiciary), that DOMA “would be sustained as

 2   constitutional if challenged in court, and that it does not raise any legal issues that necessitate

 3   further comment by the Department.” (Id. at 32–33.)

 4          The Department of Justice maintained this position until early 2011, defending DOMA

 5   against numerous lawsuits in the intervening years. Indeed, from 2009 through early 2011, the

 6   Department of Justice took the position that uniformity and a desire to preserve the status quo

 7   vis-à-vis a federal definition of marriage provided a rationale for DOMA sufficient to sustain the

 8   law under rational basis review, which was argued to be the applicable standard of scrutiny. See

 9   Office of Pers. Mgmt. Mem. of Law in Supp. of Defs.’ Mot. to Dismiss, Gill v. Office of Pers.

10   Mgmt., No. 09-cv-10309 (JLT), at 16–19 (D. Mass. Sept. 18, 2009) (docket entry no. 21); U.S.

11   Dep’t of Health and Human Servs. Mem. of P. & A. in Supp. of Defs.’ Mot. to Dismiss,

12   Commonwealth of Mass. v. U.S. Dep’t of Health and Human Servs., No. 09-cv-11156 (JLT), at

13   28–31 (D. Mass. Oct. 30, 2009) (docket entry no. 17); U.S. Dep’t of the Treasury Mot. to

14   Dismiss, Dragovich v. Dep’t of Treasury, No. 10-cv-1564 (CW), at 18–24 (N.D. Cal. July 2,

15   2010) (docket entry no. 25); U.S. Office of Pers. Mgmt. Supplemental Br. in Resp. to Ct.’s Order

16   of Oct. 15, 2010, Golinski v. Office of Pers. Mgmt., No. 10-257 (JSW), at 10–15 (N.D. Cal. Nov.

17   19, 2010) (docket entry no. 83). As late as January of 2011, the Department of Justice told the

18   First Circuit that DOMA was not unconstitutional. See Corrected Br. for the U.S. Dep’t of

19   Health and Human Servs., Commonwealth of Mass. v. U.S. Dep’t of Health and Human Servs.,

20   Nos. 10-2204, 10-2207, 10-2214, at 26–55 (1st Cir. Jan. 19, 2011). No relevant facts or law

21   have changed since early 2011 when the Department of Justice last took this position. Indeed, at

22   oral argument, the Department of Justice acknowledged that its current position on DOMA is, in


                                                      -18-
 1   part, a result of “a decision that has been made by the Attorney General and by the President, [a]

 2   constitutional judgment.” (Oral Arg. Tr. 42:21–43:6.)

 3          Even now the Department of Justice acknowledges that “a reasonable argument for

 4   Section 3’s constitutionality may be proffered under” the rational basis standard, and that there

 5   exists “substantial circuit court authority applying rational basis review to sexual-orientation

 6   classifications.” (JA-56, JA-53.) At argument, the Department of Justice summarized its most

 7   recent arguments for DOMA’s rational basis as “maintaining the status quo” and achieving “a

 8   degree of uniformity for federal benefits, coupled with preserving room for state policy

 9   development.” (Oral Arg. Tr. 44:3–7.)

10          As explained above, only if there is no conceivable legitimate governmental interest, or

11   DOMA is not rationally related to any such interest, will the statute be unconstitutional under

12   rational basis review.

13          A.      Responsible Procreation and Childrearing by Biological Parents

14          In enacting DOMA, Congress sought to explicitly recognize, for federal purposes, the

15   biological component of the marital relationship and the legal responsibility of rearing the

16   offspring of such a union. Numerous state high courts have accepted this as a rational basis for

17   excluding same-sex couples, even legally recognized same-sex parents, from the institution of

18   civil marriage. DOMA advances the governmental interest in connecting marriage to biological

19   procreation by excluding certain couples who cannot procreate simply by joinder of their

20   different sexual being from the federal benefits of marital status.

21          Under rational basis review, courts must consider and credit all rationales for restricting

22   federal marriage benefits to opposite-sex couples that do not evince unconstitutional animus.


                                                     -19-
1    Numerous courts have recognized that denying same-sex couples federal marriage rights or even

2    the right to marry at all can be grounded in reasons other than animus. See Massachusetts v. U.S.

3    Dep’t of Health and Human Servs., 

, 16 (1st Cir. 2012) (“Massachusetts v. HHS”)

4    (“we do not rely upon the charge that DOMA’s hidden but dominant purpose was hostility to

5    homosexuality”); In re Kandu, 

, 147–48 (Bankr. W.D. Wash. 2004) (noting that

6    DOMA can be explained by legitimate governmental interests); Standhardt v. Superior Court, 77

 

, 465 (Ariz. Ct. App. 2003) (“Arizona’s prohibition of same-sex marriages furthers a

 8   proper legislative end and was not enacted simply to make same-sex couples unequal to

 9   everyone else.”); Jones v. Hallahan, 

, 590 (Ky. Ct. App. 1973) (“We do not

10   consider the refusal to issue the [marriage] license [to persons of the same sex] a punishment.”);

11   In re Marriage of J.B. & H.B., 

, 680 (Tex. Ct. App. 2010) (rejecting argument

12   that limiting marriage and divorce to opposite-sex couples is “explicable only by class-based

13   animus”). See also Lawrence v. Texas, 

, 585 (2003) (“Unlike the moral disapproval

14   of same-sex relations—the asserted state interest in this case—other reasons exist to promote the

15   institution of marriage beyond mere moral disapproval of an excluded group.”) (O’Connor, J.,

16   concurring).

17          The interest in recognizing the connections between marriage and childrearing by

18   biological parents can be broken down into several components. First, DOMA expresses

19   Congressional recognition that “responsible begetting and rearing of new generations is of

20   fundamental importance to civil society.” (Amicus Br. of States of Indiana, et al. at 25.)

21   Because the state has an interest in children, the state is thus also interested in preventing

22   “irresponsible procreation,” a phenomenon implicated exclusively by heterosexuals. (BLAG Br.


                                                      -20-
 1   at 49.) Because of these legitimate interests, reserving federal marriage rights to opposite-sex

 2   couples “protect[s] civil society,” Amicus Br. of States of Indiana, et al. at 25, because without

 3   the inducement of marriage, opposite-sex couples would accidentally procreate, giving rise to

 4   unstable and unhealthy families. Marriage thus plays the important role of “channel[ing

 5   opposite-sex] sexual desires” which, in the absence of marriage, would result in unstable

 6   relationships, which have been documented to be harmful to children. (Amicus Br. of States of

 7   Indiana, et al. at 26.)

 8            As stated by BLAG, “[m]arriage attempts to promote permanence and stability, which are

 9   vitally important to the welfare of the children of the marriage.” (BLAG Br. at 48–49.) That is,

10   marriage works to combat the risk of instability which is characteristic of inherently procreative

11   opposite-sex relationships, but absent from same-sex relationships. See Amicus Br. of States of

12   Indiana, et al. at 24 (“civil marriage recognition arises from the need to encourage biological

13   parents to remain together for the sake of their children”).5 DOMA advances this interest, in that

14   the state only needs to provide incentives to opposite-sex couples in the form of marriage,

15   because only opposite-sex couples have unintended, unplanned, unwanted children. Same-sex


     5
       See also Andersen v. King Cnty., 

, 982–83 (Wash. 2006) (“[A]s Skinner, Loving, and Zablocki
     indicate, marriage is traditionally linked to procreation and survival of the human race. Heterosexual couples are the
     only couples who can produce biological offspring of the couple. And the link between opposite-sex marriage and
     procreation is not defeated by the fact that the law allows opposite-sex marriage regardless of a couple's willingness
     or ability to procreate. The facts that all opposite-sex couples do not have children and that single-sex couples raise
     children and have children with third party assistance or through adoption do not mean that limiting marriage to
     opposite-sex couples lacks a rational basis. Such over- or under-inclusiveness does not defeat finding a rational
     basis.”); Lewis v. Harris, 

, 277 (N.J. App. Div. 2005) (Parrillo, J.A.D., concurring) (“[A] core feature
     of marriage is its binary, opposite-sex nature. . . . [T]he binary idea of marriage arose precisely because there are
     two sexes.”); Goodridge v. Dep’t of Pub. Health, 

, 979 n.1 (Mass. 2003) (Sosman, J., dissenting)
     (“[T]he reasons justifying the civil marriage laws are inextricably linked to the fact that human sexual intercourse
     between a man and a woman frequently results in pregnancy and childbirth . . . that fact lies at the core of why
     society fashioned the institution of marriage in the first place.”).

                                                              -21-
 1   couples, by contrast, reproduce only “deliberately choosing to do so and by devoting a serious

 2   investment of time, attention, and resources.” (Amicus Br. of States of Indiana, et al. at 35.)

 3            Numerous courts have accepted this rationale as a basis for excluding same-sex couples

 4   from civil marriage. The New York Court of Appeals, for instance, determined that

 5                   The Legislature could . . . find that [heterosexual] relationships are
 6                   all too often casual or temporary. It could find that an important
 7                   function of marriage is to create more stability and permanence in
 8                   the relationships that cause children to be born. It thus could
 9                   choose to offer an inducement—in the form of marriage and its
10                   attendant benefits—to opposite-sex couples who make a solemn,
11                   long-term commitment to each other. The Legislature could find
12                   that this rationale for marriage does not apply with comparable
13                   force to same-sex couples. These couples can become parents by
14                   adoption, or by artificial insemination or other technological
15                   marvels, but they do not become parents as a result of accident or
16                   impulse. The Legislature could find that unstable relationships
17                   between people of the opposite sex present a greater danger that
18                   children will be born into or grow up in unstable homes than is the
19                   case with same-sex couples, and thus that promoting stability in
20                   opposite-sex relationships will help children more.

21   Hernandez v. Robles, 

, 7 (N.Y. 2006) (plurality opinion). See also Andersen, 138

22   P.3d at 1002 (Johnson, J., concurring); Morrison v. Sadler, 

, 24–25 (Ind. Ct. App.

23   2005).

24            DOMA furthers the interest in recognizing the link between marriage and procreation for

25   the reasons noted by the Maryland Court of Appeals:

26                   [S]afeguarding an environment most conducive to the stable
27                   propagation and continuance of the human race is a legitimate
28                   government interest. The question remains whether there exists a
29                   sufficient link between an interest in fostering a stable environment
30                   for procreation and the means at hand used to further that goal, i.e.,
31                   an implicit restriction on those who wish to avail themselves of

                                                      -22-
 1                  State-sanctioned marriage. We conclude that there does exist a
 2                  sufficient link. . . . This “inextricable link” between marriage and
 3                  procreation reasonably could support the definition of marriage as
 4                  between a man and a woman only, because it is that relationship
 5                  that is capable of producing biological offspring of both members
 6                  (advances in reproductive technologies notwithstanding).

 7   Conaway v. Deane, 

, 630–31 (Md. 2007) (internal citations omitted).

 8          Another component of the procreation and childrearing rationale for restricting federal

 9   rights to opposite-sex marriage is the Congressional desire to have children raised in families

10   with only biological mothers and fathers, which same-sex couples cannot provide. Thus, BLAG

11   contends that DOMA “offer[s] special encouragement for relationships that result in mothers and

12   fathers jointly raising their biological children,” an interest which “simply does not apply to

13   same-sex couples.” (BLAG Br. at 54.) DOMA accomplishes this encouragement by limiting

14   federal marriage rights to opposite-sex couples.

15          Congress might well have enacted DOMA after consulting “the entire history of

16   civilization” regarding the “problems” that arise when there is no institution to encourage

17   biological parents to remain together. (Amicus Br. of States of Indiana, et al. at 35.) This, too,

18   has been accepted as a rational reason for excluding same-sex couples (including legally

19   recognized same-sex parents) from civil marriages. See, e.g., Hernandez, 855 N.E.2d at 8

20   (plurality opinion) (“Plaintiffs seem to assume that they have demonstrated the irrationality of

21   the view that opposite-sex marriages offer advantages to children by showing there is no

22   scientific evidence to support it. Even assuming no such evidence exists, this reasoning is

23   flawed. In the absence of conclusive scientific evidence, the Legislature could rationally proceed




                                                     -23-
1    on the commonsense premise that children will do best with a mother and father in the home.”).6

2    I agree with BLAG that the evidence offered by Windsor and the professional organizations and

3    child welfare amici who advocate for affirmance does not make Congress’s “common sense”

4    regarding the needs of children a forbidden governmental interest under rational basis review.

5    (BLAG Br. at 55.)

6             As noted hereafter in the context of uniformity, the manner in which DOMA furthers the

7    legitimate governmental interests in childrearing, responsible procreation, and biological

8    parentage respects the principles of federalism. States may still arrive at individual

9    determinations regarding who may and may not marry, and DOMA does nothing to change this

10   functioning of our federal system.7 DOMA simply excludes certain couples who are married

11   under state law from eligibility for certain federal rights, benefits, privileges, and obligations.

12            DOMA’s exclusion of married same-sex couples, under the rational basis review where

13   means and ends need not match, see Heller, 509 U.S. at 321, is sufficiently related to the federal

14   interest in recognizing the link between the marital relationship and the rearing of its offspring.

15

16


     6
      Amici American Psychological Association, American Academy of Pediatrics, American Psychiatric Association,
     American Psychoanalytic Association, National Association of Social Workers, and New York State Psychological
     Association argue that no such credible evidence exists. See Amicus Br. of the American Psychological
     Association, et al. at 15–23.
     7
       The majority’s holding that DOMA’s definition of marriage as between a man and a woman is unconstitutional
     will doubtless be used to invalidate the laws in those forty-one states. Such has to be so given the fact that the equal
     protection analysis by the majority in this case for federal purposes pursuant to the Fifth Amendment is the same as
     that to be applied as to the states pursuant to the Fourteenth Amendment and is, therefore, the yardstick by which to
     hold unconstitutional the law in the forty-one states. Indeed, an affirmance by the Supreme Court of the majority’s
     view would likely doom the laws of the forty-one states which exclude same-sex couples from civil marriage.

                                                              -24-
 1          B.      Maintaining the Status Quo of Uniformity

 2          BLAG contends that DOMA is rationally related to the legitimate governmental “interest

 3   in uniform eligibility for federal marital benefits.” (BLAG Br. at 39.) Congress, it is argued, has

 4   a “long history of enacting federal definitions of marriage that do not simply incorporate state

 5   definitions and inevitably will conflict with some of them.” (Id. at 42–43.) A uniform federal

 6   definition of marriage “ensures that similarly-situated couples will have the same benefits

 7   regardless of which state they happen to live in.” (Id. at 39–40.) The District Court expressed

 8   skepticism regarding the legitimacy of this end, but principally rejected this justification because

 9   DOMA “intrude[s] upon the states’ business of regulating domestic relations.” (JA-1007–09.)

10   Windsor and various amici argue that “[t]he federal government [has always] accepted states’

11   determinations of who was validly married – no matter how far states’ criteria for validity

12   diverged from one other,” Historians Amicus Br. at 15, and that the promulgation of a federal

13   definition of marriage “injects the federal government into domestic relations law and works to

14   delegitimize both the lawful marriages of thousands of same-sex couples and the considered

15   judgments of . . . [s]tates to sanction same-sex marriages, . . . intrud[ing] on core state powers.”

16   (States of New York, Vermont, and Connecticut Amicus Br. at 14.)

17          The subject of domestic relations, including marriage, has been the province of the states.

18   See Elk Grove Unified Sch. Dist. v. Newdow, 

, 12 (2004) (“Long ago we observed that

19   ‘[t]he whole subject of the domestic relations of husband and wife, parent and child, belongs to

20   the laws of the States and not to the laws of the United States.’”) (quoting In re Burrus, 

   586, 593 (1890)). But DOMA does not change this, and does nothing to strip the status that




                                                     -25-
 1   states confer on couples they marry. Instead, DOMA limits the federal benefits, rights,

 2   privileges, and responsibilities of marriage to a subset of those deemed married under state law.

 3          That the federal government often defers to state determinations regarding marriage does

 4   not obligate it to do so. While a state may be perfectly disinterested in prying into the reasons a

 5   couple marries, the federal government remains deeply and properly concerned with the

 6   reason(s) why a couple weds. See Massachusetts v. HHS, 682 F.3d at 12 (“Congress surely has

 7   an interest in who counts as married. The statutes and programs that section 3 governs are

 8   federal regimes such as social security, the Internal Revenue Code and medical insurance for

 9   federal workers; and their benefit structure requires deciding who is married to whom.”).

10          For example, when people marry for immigration purposes, the federal government may

11   validly deem the marriage “fraudulent,” even though it remains valid under state law. See 8

12   U.S.C. § 1325(c) (“Any individual who knowingly enters into a marriage for the purpose of

13   evading any provision of the immigration laws shall be imprisoned for not more than 5 years, or

14   fined not more than $250,000, or both.”); 8 U.S.C. §§ 1154(a)(2)(A), 1255(e). Courts have

15   recognized this principle. See, e.g., Taing v. Napolitano, 

, 21 (1st Cir. 2009)

16   (plaintiff remained a “spouse” and “immediate relative” under the Immigration and

17   Naturalization Act, even if her marriage actually ceased under state law upon the death of her

18   spouse); Adams v. Howerton, 

, 1040–41 (9th Cir. 1982) (even same-sex marriage

19   valid under state law does not count as a marriage for federal immigration law purposes); Lutwak

20   v. United States, 

, 610–11 (1953) (noting a marriage’s adherence to local law is

21   immaterial if the marriage was “part of [a] conspiracy to defraud the United States”). Tellingly,

22   Windsor does not argue that federal Immigration and Customs Enforcement interferes with


                                                     -26-
 1   traditional state functions when it leaves states free to recognize, for their own purposes, any

 2   marriage they like but refuses to grant legal residency to immigrants it believes married only to

 3   secure the benefits of marriage.

 4           DOMA alters the general, but by no means unyielding, practice of the federal

 5   government accepting marriages recognized by state law. However, at the time Congress acted,

 6   all states recognized only opposite-sex marriages, and the fact that Congress chose to maintain

 7   that status quo in response to this new, evolving social issue does not invalidate its legislative

 8   interest. It may be that, prior to DOMA, any federal “definition” of marriage was limited to

 9   advancing the targeted goal of a particular federal program, not a blanket, undifferentiated policy

10   choice imposed on statuses created by states. See Massachusetts v. HHS, 682 F.3d at 12. But

11   this fact does not render the asserted interest in uniformity illegitimate or so lacking a “footing in

12   the realities of the subject addressed by the legislation” as to fail rational basis review. Heller,

13   509 U.S. at 321.

14           Section 3 of DOMA was enacted as the debate regarding marriage equality was just

15   beginning in the states. At that time, no state had actually permitted same-sex couples to marry.

16   In the intervening years, six states and the District of Columbia have enacted statutes or issued

17   court decisions that permit same-sex marriage.8 On the other hand, thirty states have amended

18   their founding documents by constitutional amendment to prohibit same-sex marriage, and

19   eleven more states have enacted statutes to the same effect.9 Given the evolving nature of this


     8
      See N.Y. Dom. Rel. Law § 10-a (McKinney 2011); N.H. Rev. Stat. § 457:1-a (2010); D.C. Stat. § 46-401 (2010);
     Vt. Stat. Ann. tit. 15 § 8 (2009); Varnum v. Brien, 

 (Iowa 2009); Kerrigan v. Comm’r of Pub.
     Health, 

 (Conn. 2008); Goodridge, 

 (Mass. 2003).
     9
      See Ala. Const. Art. I, § 36.03; Ala. Code § 30-1-19; Alaska Const. Art. 1, § 25; Alaska Stat. § 25.05.013; Ariz.
     Const. Art. 30 § 1; Ariz. Rev. Stat. §§ 25-101 & 25-112; Ark. Const. Amend. 83, § 1; Ark. Code Ann. §§ 9-11-109,
                                                            -27-
 1   issue, Congress was entitled to maintain the status quo pending further developments.

 2   Otherwise, “marriage” and “spouse” for the purposes of federal law would depend on the

 3   outcome of this debate in each state, with the meanings of those terms under federal law

 4   changing with any change in a given state. As Windsor rightly notes, prior to DOMA, a state’s

 5   authorization of same-sex marriage had numerous implications for federal laws to the extent

 6   those laws were construed to incorporate state-law definitions of marriage. In order to avoid

 7   federal implications of state-law developments in the area of marriage, Congress, by enacting

 8   DOMA, reasonably froze federal benefits policy as it existed in 1996 with respect to same-sex

 9   marriage.

10           The federal government can legitimately limit the national impact of state-level policy

11   development. Doing so facilitates the ability of the states to serve as laboratories of policy

12   development. As the Massachusetts Supreme Court stated when it held that the Massachusetts

13   state constitution required allowing same-sex couples to marry, “[t]he genius of our Federal

     9-11-107, 9-11-208; Cal. Const. Art. I, § 7.5; Colo. Const. Art. 2, § 31; Colo. Rev. Stat. § 14-2-104; 13 Del. Code
     Ann. § 101; Fla. Const. Art. 1 § 27; Fla. Stat. § 741.212; Ga. Const. Art. 1, § 4, I; Ga. Code Ann. § 19-3-3.1; Haw.
     Const. Art. 1, § 23; Haw. Rev. Stat. § 572-1; Idaho Const. Art. III, § 28; Idaho Code Ann. §§ 32-201 & 32-209; 750
     Ill. Comp. Stat. 5/212; Ind. Code § 31-11-1-1; Kan. Const. Art. 15, § 16; Kan. Stat. Ann. §§ 23-101 & 23-115; Ky.
     Const § 233A; Ky. Rev. Stat. Ann. §§ 402.005 & 402.020; La. Const. Art. 12, § 15; La. Civ. Code Ann. Art. 86, 89;
     Me. Rev. Stat. Ann. tit. 19-A, § 701; Md. Code Ann., Fam. Law, § 2-201; Mich. Const. Art. 1, § 25; Mich. Comp.
     Laws § 551.1; Minn. Stat.§ 517.03; Miss. Const. Art. 14, § 263A; Miss. Code Ann. § 93-1-1; Mo. Const. Art. I,
     § 33; Mo. Rev. Stat. § 451.022; Mont. Const. Art. XIII, § 7; Mont. Code Ann. § 40-1-401; Neb. Const. Art. I, § 29;
     Nev. Const. Art. 1, § 21; N.C. Gen. Stat. § 51-1.2; N.D. Const. Art. XI, § 28; N.D. Cent. Code §§ 14-03-01 & 14-
     03-08; Ohio Const. Art. 15, § 11; Ohio Rev. Code Ann. § 3101.01(C); Okla. Const. Art. 2, § 35; Okla. Stat. Ann. tit.
     43, § 3.1; Or. Const. Art. XV, § 5a; 23 Pa. Cons. Stat. §§ 1102, 1704; S.C. Const. Art. XVII, § 15; S.C. Code Ann.
     § 20-1-15; S.D. Const. Art. 21, § 9; S.D. Codified Laws § 25-1-1; Tenn. Const. Art. XI, § 18; Tenn. Code Ann.
     § 36-3-113; Tex. Const. Art. 1, § 32; Tex. Fam. Code Ann. §§ 2.001(b) & 6.204; Utah Const. Art. I, § 29; Utah
     Code Ann. §§ 30-1-2(5) & 30-1-4.1; Va. Const. Art. 1, § 15-A; Va. Code Ann. §§ 20-45.2 & 20-45.3; Wash. Rev.
     Code § 26.04.010(1); W. Va. Code § 48-2-603; Wis. Const. Art. XIII, § 13; Wis. Stat. §§ 765.001(2) & 765.04;
     Wyo. Stat. Ann. § 20-1-101. The statutory prohibitions or amendments of nineteen of these forty-one states forbid
     not only same-sex marriage, but any other form of relationship recognition, such as domestic partnership or civil
     union, between two persons of the same sex.

                                                            -28-
 1   system is that each State’s Constitution has vitality specific to its own traditions, and

 2   that . . . each State is free to address difficult issues of individual liberty in . . . its own” manner.

 3   Goodridge, 798 N.E.2d at 967.

 4           Windsor argues that DOMA upends, rather than preserves, the status quo of

 5   Congressional control over the meaning of marriage for federal purposes. But this argument is

 6   contrary to the clear legal landscape at the time of DOMA’s enactment—that is, at the time, all

 7   states were in full accord in recognizing only opposite-sex marriages. Congress’s actions allow

 8   it to maintain a “wait-and-see” approach in the face of evolving state approaches to same-sex

 9   marriages, thereby avoiding the need to immediately deal with the potentially significant impact

10   on federal law that a state’s recognition of same-sex marriage could have. Indeed, the far-

11   reaching impact of the federal definition of marriage in terms of rights, benefits, responsibilities,

12   and privileges (upon which Windsor places great emphasis) means that Congressional action can

13   quite reasonably be understood to have perceived this potential impact and decided that it was in

14   the federal government’s interest to maintain consistency and uniformity in distributing federal

15   benefits and administering federal programs.

16           Congress may, and both parties agree that it often does, borrow definitions from state

17   law, but Windsor is incorrect to suggest that it is required to do so or is irrational when it does

18   not. Put directly, Congress may also legitimately take an approach that attempts to create

19   uniformity across the states. In DOMA, Congress chose to adopt a uniform federal definition of

20   “marriage” and “spouse” for purposes of federal laws. Congress could rationally conclude that

21   maintaining the status quo at the federal level during a period of flux would allow states that




                                                        -29-
 1   wish to make changes in the legal definition of marriage to retain their inherent prerogative to do

 2   so, while permitting others to maintain the traditional view.

 3          Rational basis review embodies the principle that, as Congress did in enacting DOMA,

 4   legislatures are free to refine their “preferred approach as circumstances change and as they

 5   develop a more nuanced understanding of how best to proceed.” Massachusetts v. Envtl. Prot.

 6   Agency, 

, 524 (2007). Contrary to Windsor’s contention, the preservation of the

 7   status quo—the definition of marriage that was uniform among all fifty states in the year of

 8   DOMA’s passage—constitutes a legitimate governmental interest insofar as it allows Congress

 9   the ability to “wait and see” how the issue of same-sex marriage would take shape among the

10   many and diverse states of our nation.

11          The uniformity that DOMA recognized and maintained has been recognized both

12   explicitly and implicitly by courts for many years from various jurisdictions across the nation.

13   Perhaps most explicitly, the Supreme Court stated:

14                  [N]o legislation can be supposed more wholesome and necessary
15                  in the founding of a free, self-governing commonwealth, fit to take
16                  rank as one of the co-ordinate states of the Union, than that which
17                  seeks to establish it on the basis of the idea of family, as consisting
18                  in and springing from the union for life of one man and one
19                  woman in the holy estate of matrimony; the sure foundation of all
20                  that is stable and noble in our civilization; the best guaranty of that
21                  reverent morality which is the source of all beneficent progress in
22                  social and political improvement.
23
24   Murphy v. Ramsey, 

, 45 (1885).

25          Other courts have explained that this uniformity has not always been explicit or necessary

26   to state. Almost forty years ago a Washington state court put it thus: “[A]lthough it appears that

27   the appellate courts of this state until now have not been required to define specifically what


                                                     -30-
 1   constitutes a marriage, it is apparent from a review of cases dealing with legal questions arising

 2   out of the marital relationship that the definition of marriage as the legal union of one man and

 3   one woman who are otherwise qualified to enter into the relationship not only is clearly implied

 4   from such cases, but also was deemed by the court in each case to be so obvious as not to require

 5   recitation.” Singer v. Hara, 

, 1191–92 (Wash. Ct. App. 1974). See also Jones v.

 6   Hallahan, 

, 590 (Ky. Ct. App. 1973) (“In substance, the [marital] relationship

 7   proposed by the [same-sex] appellants does not authorize the issuance of a marriage license

 8   because what they propose is not a marriage.”).

 9           Cases predating Murphy demonstrate that the Supreme Court consistently lauded this

10   conception of marriage as a critical social institution. See Reynolds v. United States, 

   145, 165-66 (1878) (“Marriage, while from its very nature a sacred obligation, is nevertheless, in

12   most civilized nations, a civil contract, and usually regulated by law. Upon it society may be

13   said to be built, and out of its fruits spring social relations and social obligations and duties.”).

14           Subsequent to Murphy, the Supreme Court has continued to view the biological link of

15   parents to children as deserving of special recognition and protection. See Michael H. v. Gerald

16   D., 

, 120 n.1 (1989) (indicating that where, inter alia, a “husband and wife” are

17   “cohabiting,” there is a presumption that they are in a “harmonious and apparently exclusive

18   marital relationship”); Griswold v. Connecticut, 

, 482 (1965) (noting the special

19   “intimate relation of husband and wife”); see also Lawrence v. Texas, 

, 567 (2003)

20   (“[I]t would demean a married couple were it to be said marriage is simply about the right to

21   have sexual intercourse.”). And marriage has been noted to carry special legal entitlements for

22   those men and women who enter into it. See, e.g., Griswold¸ 381 U.S at 495 (noting it is hard to


                                                       -31-
 1   conceive of what “is more private or more intimate than a husband and wife’s marital relations”

 2   and “the rights to marital privacy and to marry and raise a family are of similar order and

 3   magnitude as the fundamental rights specifically protected” in the Constitution) (Goldberg, J.,

 4   concurring); Meyer v. Nebraska, 

, 399 (1923) (determining right to “marry,

5    establish a home and bring up children” is a liberty right under the Fourteenth Amendment).10

6             The Supreme Court also has taken care to preserve and distinguish the rights of the

7    natural—that is, biological—family over “families” other than the biological. See Lehr v.

 8   Robertson, 463 U.S 248, 256–57 (1983) (“The institution of marriage has played a critical role

 9   both in defining the legal entitlements of family members and in developing the decentralized

10   structure of our democratic society. In recognition of that role . . . state laws almost universally

11   express an appropriate preference for the formal family.”) (footnotes omitted).11 It has noted that

12   “the Constitution protects the sanctity of the family precisely because the institution of the family
     10
       See also Caban v. Mohammed, 

, 397 (1979) (“Even if it be assumed that each married parent after
     divorce has some substantive due process right to maintain his or her parental relationship . . . , it by no means
     follows that each unwed parent has any such right.”) (internal citations omitted) (Stewart, J., dissenting); Poe v.
     Ullman, 

, 553 (1961) (recognizing that “the intimacy of husband and wife is necessarily an essential
     and accepted feature of the institution of marriage, an institution which the State not only must allow, but which
     always and in every age it has fostered and protected,” and noting also that the “State” may “exert its power . . . to
     say who may marry”) (Harlan, J., dissenting).
     11
        See also Santosky v. Kramer, 

, 753 (1982) (noting the “absence of dispute” that “freedom of personal
     choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment,” and
     noting that “[e]ven when blood relationships are strained, parents retain a vital interest in preventing the irretrievable
     destruction of their family life”); Trimble v. Gordon, 

, 769 (1977) (describing the “family unit” as
     “perhaps the most fundamental social institution of our society”); Smith v. Org. of Foster Families for Equal. &
     Reform, 

, 823, 843–45 (1977) (noting New York State’s support of laudable policy that “natural
     parents” provide the “positive, nurturing family relationships” and “normal family life in a permanent home” that
     offers the “best opportunity for children to develop and thrive” and noting the “usual understanding of ‘family’
     implies biological relationships”) (internal citations omitted); Stanley v. Illinois, 

, 651 (1972) (“The
     rights to conceive and to raise one’s children have been deemed essential, basic civil rights of man, and rights far
     more precious . . . than property rights.”) (internal citations and quotations omitted); Prince v. Massachusetts, 

, 166 (1944) (“It is cardinal with us that the custody, care and nurture of the child reside first in the
     parents.”).

                                                               -32-
 1   is deeply rooted in this Nation’s history and tradition.” Moore v. City of E. Cleveland, Ohio, 431

 

, 503 (1977) (Powell, J., plurality opinion). The Court has indicated repeatedly that

 3   “history and tradition” are the “source for ‘supplying . . . content to th[e] Constitutional

 4   concept’” that biological family units are afforded additional protections under our nation’s laws.

 5   Id. at 540 (citing Poe v. Ulman, 

, 542 (1961) (Harlan, J., dissenting)). Thus, it is

 6   and always has been the “‘traditions and (collective) conscience of our people,’” not the

 7   “personal and private notions” of judges, that determine societal rights, including what marriage

 8   is as an institution and who is entitled to participate in it. Griswold, 381 U.S. at 493 (citing

 9   Snyder v. Commonwealth of Mass., 

, 105 (1934)) (Goldberg, J., concurring).

10          In light of these decisions relying on the traditional understanding of marriage as only

11   between one man and one woman, I join Justice Black in the sentiment that “[o]ne of the most

12   effective ways of diluting or expanding a constitutionally guaranteed right is to substitute for the

13   crucial word or words of a constitutional guarantee another word or words, more or less flexible

14   and more or less restricted in meaning.” Griswold, 381 U.S. at 509 (Black, J., dissenting).

15          Marriage today, according to the federal government, means what it has always meant—a

16   holy union, essential to the survival of the species, between a man and a woman, the principal

17   purpose of which is to encourage responsible child rearing. Murphy set forth this understanding,

18   Baker v. Nelson reaffirmed it, and no Supreme Court case since Murphy gives me reason to

19   doubt that definition should not still stand.

20          Having found the interest in maintaining uniformity (including in the form of the 1996

21   status quo) legitimate, the means employed to advance this goal appear appropriate. As noted

22   above, BLAG argues that DOMA “ensures that similarly-situated couples [i.e., married same-sex


                                                      -33-
 1   couples and all unmarried couples] will have the same federal benefits [i.e., none] regardless of

 2   which state they happen to live in, and avoids a confusing situation in which same-sex couples

 3   would lose (or gain) federal marital status simply by moving between states with different

 4   policies on recognition of same-sex marriages.” (BLAG Br. at 39–40 (emphasis added).) The

 5   relevant discrimination, however, to be justified by BLAG is DOMA’s differential treatment of

 6   married couples based on the sex of the persons constituting the couple. Married same-sex

 7   couples are similarly-situated to married opposite-sex couples with respect to the relevant

 8   characteristic at issue: marital status.

 9           Windsor claims that the line DOMA draws fails rational basis review because the

10   purported justifications for the discrimination “make no sense” and “are impossible to credit” in

11   light of how the groups at issue are similarly situated. However, the regulation of federal

12   programs is emphatically the province of Congress. Having not previously defined the scope of

13   federal programs the way DOMA does should not forever bind Congress’s hands from doing so,

14   or make Congressional action nonsensical, especially when viewed in light of the clear and

15   unaltered judicial characterization of the nation’s historical understanding of marriage.

16           Windsor contends that DOMA creates complexity and establishes two tiers of married

17   couples in states that permit same-sex marriage. But the question of uniformity of marriage at

18   the state level is not DOMA’s concern. While the tension between state and federal policies in

19   this area are real, they are no greater than those that have existed among the states—tensions

20   which Windsor acknowledges reflect the essence of, and have endured under, our federal system.

21           I conclude, therefore, that it was rational for Congress to prefer uniform substantive

22   eligibility criteria for federal marital benefits for same-sex couples over “uniform” deference to


                                                     -34-
 1   varying state criteria. Such a goal may be an exception to Congress’s general deference to the

 2   states in the area of marriage (even in the face of contentious state-level variation) but this in no

 3   way makes the legislative classification employed in pursuit of uniformity irrational in light of

 4   the tremendous deference we afford acts of Congress under rational basis review. See Heller,

 5   509 U.S. at 321 (“[C]ourts are compelled under rational-basis review to accept a legislature’s

 6   generalizations even when there is an imperfect fit between means and ends.”).

 7             When, as here, an issue involves policy choices, the Supreme Court has cautioned that

 8   “the appropriate forum for their resolution in a democracy is the legislature.” Maher v. Roe, 432

 

, 479 (1977). DOMA rationally serves the legitimate government interest in

10   maintaining the status quo of the definition of marriage pending evolution of the issue in the

11   states.

12                                               *     *       *

13             Because the recognition of the biological connection of marriage to childrearing and the

14   pursuit of uniformity (including in the form of preserving the status quo) are sufficient to support

15   DOMA under rational basis review, I choose not to discuss the other asserted rationales. Beach

16   Commc’ns, 508 U.S. at 317. Nevertheless, I next address whether sexual orientation

17   classifications should, as a matter of first impression in this Circuit, be subject to heightened

18   scrutiny in an equal protection analysis.

19   VI.       Appropriate Level of Review for Sexual Orientation Discrimination

20             The Supreme Court has reserved heightened scrutiny for a small number of subject

21   classifications—principally race, alienage, nationality, sex, and illegitimacy. Heightened

22   scrutiny attaches in recognition that these traits have been used to impose, and are therefore


                                                      -35-
 1   closely associated with, social inequality. Therefore, government conduct that employs these

 2   classifications is suspect and must have more than a legitimate or merely permissible

 3   justification.

 4           The question of the appropriate level of scrutiny for laws that discriminate in respect of

 5   the definition of marriage on the basis of sexual orientation is an issue of first impression in this

 6   Circuit. See Able v. United States, 

, 632 (2d Cir. 1998) (declining to consider, in

 7   military context where judicial deference is “at its apogee,” the question whether sexual

 8   orientation discrimination would trigger heightened scrutiny because challengers did not argue

 9   for “any more onerous standard than the rational basis test” and therefore “the sole question

10   before us is whether the Act survives rational basis review”).

11           “[W]here individuals in the group affected by a law have distinguishing characteristics

12   relevant to interests the State has the authority to implement, the courts have been very reluctant,

13   as they should be in our federal system and with our respect for the separation of powers, to

14   closely scrutinize legislative choices as to whether, how, and to what extent those interests

15   should be pursued.” City of Cleburne v. Cleburne Living Ctr., Inc., 

, 441–42

16   (1985). The Supreme Court has repeatedly rejected arguments by litigants and rulings by lower

17   courts that would grant heightened review to legislative distinctions based on mental handicap,

18   id. at 442–47, kinship, Lyng v. Castillo, 

, 638 (1986), age, Mass. Bd. of Ret. v.

19   Murgia, 

, 314 (1976), and poverty, San Antonio Indep. Sch. Dist. v. Rodriguez, 411

, 29 (1973).

21           The Supreme Court, despite having the opportunity to apply heightened review,

22   invalidated the provision of the Colorado Constitution challenged in Romer under rational basis


                                                      -36-
 1   review. See 

 (1996). That Romer was decided under the rational basis standard

 2   without a need to employ a more exacting level of review does not mean that the question of the

 3   appropriate tier of equal protection scrutiny was not before the Court. Indeed, although the

 4   Romer plaintiffs “elected not to appeal” the lower court’s determination that sexual orientation

 5   does not constitute a “suspect” or “quasi-suspect” classification, the Supreme Court “evidently

 6   agree[d] that ‘rational basis’ . . . is the governing standard.” Romer, 517 U.S. at 641 n.1 (Scalia,

 7   J., dissenting).

 8           Until the majority’s opinion, DOMA had never been held by the Supreme Court or any

 9   Circuit Court to involve a suspect or quasi-suspect classification. Indeed, in light of the Supreme

10   Court’s reluctance to apply heightened scrutiny to new categories of discrimination, and in

11   consideration of the fact that it declined to do so in Romer, eleven other circuits have also not

12   taken this step. See Massachusetts v. HHS, 682 F.3d at 9; Davis v. Prison Health Servs., 679

, 438 (6th Cir. 2012); Perry v. Brown, 

, 1082 (9th Cir. 2012); Cook v.

14   Gates, 

, 61–62 (1st Cir. 2008); Price-Cornelison v. Brooks, 

, 1113

15   (10th Cir. 2008); Citizens for Equal Prot. v. Bruning, 

, 867 (8th Cir. 2006); Johnson

16   v. Johnson, 

, 532 (5th Cir. 2004); Lofton v. Sec’y of Dep’t of Children & Family

17   Servs., 

, 818 (11th Cir. 2004); Thomasson v. Perry, 

, 927–28 (4th Cir.

18   1996); High Tech Gays v. Def. Indus. Sec. Clearance Office, 

, 573–74 (9th Cir.

19   1990); Ben-Shalom v. Marsh, 

, 464 (7th Cir. 1989); Woodward v. United States,

20   

, 1076 (Fed. Cir. 1989); Padula v. Webster, 

, 103 (D.C. Cir. 1987);

21   Nat’l Gay Task Force v. Bd. of Educ. of City of Okla. City, 

, 1273 (10th Cir. 1984),

22   aff’d by an equally divided court, 

 (1985) (per curiam). In Massachusetts v. HHS,


                                                     -37-
 1   the First Circuit rejected the application of strict and intermediate scrutiny, recognized that

 2   DOMA satisfies rational basis review, and yet went on to create a novel “plus” level of scrutiny

 3   applicable to DOMA, in contravention of the Supreme Court’s holding in Baker. Such judicial

 4   impositions of new levels of review deprive the American people of further consideration of

 5   DOMA through their democratically elected representatives.

 6          Significantly, numerous Circuit Courts of Appeals decisions declining to extend

 7   heightened scrutiny to sexual orientation discrimination post-date both Romer v. Evans and

 8   Lawrence v. Texas. Windsor argues that the determinations made regarding the appropriate level

 9   of scrutiny in decisions such as Cook v. Gates, 

, 61 (1st Cir. 2008) (rational-basis

10   review applies, and “Lawrence does not alter this conclusion”) and Witt v. Dep’t of Air Force,

11   

, 821 (9th Cir. 2008) (Circuit precedent requiring rational-basis review “was not

12   disturbed by Lawrence, which declined to address equal protection”) are distinguishable because

13   the cases arose in a military context where judicial deference is “at its apogee.” See Able, 155

14   F.3d at 632. But as the voluminous authority cited above makes clear, see Section IV, supra,

15   whatever additional deference courts afford Congressional action in the military context, rational

16   basis review is, even in the civilian context, highly deferential to the legislature, not a mechanism

17   for judges to second guess properly enacted legislative judgments, and the “paradigm of

18   restraint.” See Beach Commc’ns, 508 U.S. at 314. See also Perry, 671 F.3d at 1080 n.13

19   (relying, in the civilian context, on rulings that declined to apply heightened scrutiny to sexual

20   orientation classifications in the military context). Indeed, the Department of Justice so

21   acknowledged last year—until it changed its constitutional position following the President’s

22   announcement of a change in policy.


                                                     -38-
 1            Therefore, I would join these eleven circuits, driven not only by a reluctance to do that

 2   which the Supreme Court itself has not undertaken when given the chance, but also out of

 3   routine respect for extant precedent. Subjecting the federal definition of marriage to heightened

 4   scrutiny would defy or, at least, call into question the continued validity of Baker, which we are

 5   not empowered to do. Baker involved a law that prohibited same-sex marriage, and thus

 6   discriminated on the basis of sexual orientation. Holding that sexual orientation merits

 7   heightened scrutiny would be substantively inconsistent with Baker since (1) any legislative

 8   action faces a high likelihood of invalidation under heightened scrutiny, and (2) it would be

 9   curious to apply heightened scrutiny to a form of discrimination that does not raise a substantial

10   federal question of constitutional law. See Massachusetts v. HHS, 682 F.3d at 9 (“[T]o create

11   such a new suspect classification for same-sex relationships would have far-reaching

12   implications—in particular, by implying an overruling of Baker, which we are neither

13   empowered to do nor willing to predict.”). Any such development must come from the elected

14   representatives of the American people.12



     12
        Indeed, one elected representative—the President—has already taken steps to mitigate the harms visited upon
     same-sex couples by DOMA. The President has issued a memorandum requiring all executive departments and
     agencies to take steps, consistent with existing law, to extend benefits to the same-sex domestic partners of federal
     employees, and where applicable, to the children of same-sex domestic partners of federal employees. See
     Presidential Memorandum, Extension of Benefits to Same-Sex Domestic Partners of Federal Employees (June 20,
     2010). The Office of Personnel Management (“OPM”) was directed to clarify that for purposes of employee
     assistance programs, same-sex domestic partners and their children qualify as “family members.” In addition,
     pursuant to a Presidential Memorandum Regarding Federal Benefits and Non-discrimination (June 17, 2009), OPM
     issued regulations expanding the definition of “qualified relatives” to include same-sex domestic partners of eligible
     federal employees in the federal long-term care insurance program. See 5 CFR 875.213 (June 1, 2010).

     In Congress, efforts provide various types of federal benefits for same-sex domestic partners—such as health
     insurance, life insurance, pensions, and other employment-related benefits—are routinely introduced, if
     unsuccessful. See, e.g., S. 2521, 110th Cong. (2007); H.R. 4838, 110th Cong. (2007) (bills died in committee); S.
     1102, 111th Cong. (2009); H.R. 2517, 111th Cong. (2009) (no action taken on either version after being reported out
                                                             -39-
 1           Whatever the merits of doing so in a context other than the marital union, I conclude that,

 2   in respect of the unique institution of marriage it would be imprudent to announce a new rule

 3   under which sexual orientation is subject to heightened scrutiny.

 4                                                 CONCLUSION

 5           For the foregoing reasons, I would hold that per Baker, the legislative distinction drawn

 6   by DOMA satisfies rational basis review and is therefore constitutional.

 7           Whether connections between marriage, procreation, and biological offspring recognized

 8   by DOMA and the uniformity it imposes are to continue is not for the courts to decide, but rather

 9   an issue for the American people and their elected representatives to settle through the

10   democratic process. Courts should not intervene where there is a robust political debate because

11   doing so poisons the political well, imposing a destructive anti-majoritarian constitutional ruling

12   on a vigorous debate. Courts should not entertain claims like those advanced here, as we can

13   intervene in this robust debate only to cut it short.

14           I respectfully dissent from the majority opinion to the extent it holds otherwise.




     of committees); S. 1910, 112th Cong. (2011) (reported out of committee); H.R. 3485, 112th Cong. (2011) (remains
     in committee).

                                                          -40-