Case: 10-16696 02/23/2011 Page: 1 of 23 ID: 7656998 DktEntry: 303

No. 10-16696
Argued December 6, 2010
(Reinhardt, Hawkins, N. Smith)

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT
_________________________

KRISTIN M. PERRY, et al.,

Plaintiffs-Appellees,
v.
ARNOLD SCHWARZENEGGER, et al.,
Defendants,
and
DENNIS HOLLINGSWORTH, et al.,
Defendants-Intervenors-Appellants.
_________________________
On Appeal From The United States District Court
For The Northern District Of California
No. CV-09-02292 VRW (Honorable Vaughn R. Walker)
____________________________________________________
MOTION TO VACATE STAY PENDING APPEAL OF
PLAINTIFFS-APPELLEES KRISTIN M. PERRY ET AL.
____________________________________________________
DAVID BOIES THEODORE B. OLSON
JEREMY M. GOLDMAN Counsel of Record
THEODORE H. UNO MATTHEW D. MCGILL
BOIES, SCHILLER & FLEXNER LLP AMIR C. TAYRANI
333 Main Street GIBSON, DUNN & CRUTCHER LLP
Armonk, New York 10504 1050 Connecticut Avenue, N.W.
(914) 749-8200 Washington, D.C. 20036
(202) 955-8500
THEODORE J. BOUTROUS, JR.
CHRISTOPHER D. DUSSEAULT
ENRIQUE A. MONAGAS
GIBSON, DUNN & CRUTCHER LLP
333 South Grand Avenue
Los Angeles, CA 90071
(213) 229-7804
Attorneys for Plaintiffs-Appellees
Kristin M. Perry, Sandra B. Stier, Paul T. Katami, and Jeffrey J. Zarrillo
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TABLE OF CONTENTS
Page

INTRODUCTION......................................................................................................1

ARGUMENT .............................................................................................................4

CONCLUSION ........................................................................................................11

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TABLE OF AUTHORITIES

Page(s)
Cases
Arizonans for Official English v. Arizona,
520 U.S. 43 (1997) .................................................................................................5
Nken v. Holder,
129 S. Ct. 1749 (2009) .............................................................................. 4, 5, 6, 8
SEACC v. U.S. Army Corps of Eng’rs,
472 F.3d 1097 (9th Cir. 2006) ................................................................................4
Zablocki v. Redhail,
434 U.S. 374 (1978) ...............................................................................................9

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INTRODUCTION

Plaintiffs filed this case in May 2009 because Proposition 8 stripped them of

their fundamental human, civil, and constitutional right to marry the person of their

choice. Plaintiffs sought a preliminary injunction against further enforcement of

Proposition 8 because each and every day they were denied that fundamental right

caused grievous, humiliating, and irreparable injury to them and their families. Propo-

sition 8 relegates gay men and lesbians to a form of second-class citizenship and la-

bels their families—including some 37,000 California children being raised by gay

men and lesbians—second-rate. Each day plaintiffs, and gay men and lesbians like

them, are denied the right to marry—denied the full blessings of citizenship—is a day

that never can be returned to them.

The district court denied plaintiffs’ request for a preliminary injunction, but

made a concomitant commitment to an expedited trial and adjudication of the merits

of plaintiffs’ claims. The district court accordingly set the case for trial just six

months after the preliminary hearing, less than eight months after the complaint had

been filed. When an appeal of a discovery order threatened to derail the trial, this

Court received briefing, held argument, and issued a decision all in the space of seven

weeks. See Perry v. Schwarzenegger, No. 09-17241 (9th Cir.). When an issue involv-

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ing cameras in the courtroom during trial arose, the Supreme Court of the United

States resolved the matter in days.

After an historic trial in which the proponents of Proposition 8 were unable to

establish that their effort to strip gay men and lesbians of their constitutional right to

marry rationally advanced some legitimate governmental aim, plaintiffs prevailed.

The district court held that “Plaintiffs have demonstrated by overwhelming evidence

that Proposition 8 violates their due process and equal protection rights and that they

will continue to suffer these constitutional violations until state officials cease en-

forcement of Proposition 8.” Doc #708 at 138. The district court accordingly granted

plaintiffs’ request for a permanent injunction against the enforcement of Proposition 8

on August 12, 2010.

Proponents sought a stay to permit the continued enforcement of Proposition

8’s restriction on plaintiffs’ right to marry. They argued that a stay would “at most

subject Plaintiffs to a period of additional delay pending a final determination of

whether they may enter a legally recognized marriage relationship.” Mot. for Stay at

70. Plaintiffs opposed the stay, arguing that the “additional delay” that proponents

marginalized was a delay in ending the deprivation of fundamental constitutional

rights and that any such “additional delay” would perpetuate on a daily basis the seri-

ous, lasting, and irreparable damage to gay men and lesbians who wish to marry, their

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families, and, particularly, their children. In short, justice delayed would be constitu-

tional justice irreparably denied for every day delayed.

This Court granted proponents the stay they requested and thus denied to plain-

tiffs, at least temporarily, relief for their ongoing constitutional injuries. But, at the

same time it did so, this Court ordered that “this appeal be expedited,” and set a sched-

ule that provided for full briefing and oral argument within four months.

Oral argument was held on December 6, 2010. In an order dated January 4,

2011, this Court expressed reservations as to whether proponents had Article III stand-

ing to maintain an appeal in federal court. See Certification Order at 6 (“It is not suf-

ficiently clear to us, however, whether California law does so.”). This Court thus

certified a question to the Supreme Court of California that this Court characterized as

potentially “dispositive of our very ability to hear this case.” Id. at 7.

On February 16, 2011, the Supreme Court of California granted the request for

certification but set a schedule for briefing and argument that will permit the case to

be heard “as early as September, 2011,” meaning that this case will be extended from

the December argument date in this Court for at least nine additional months, and per-

haps longer, just for oral argument, and perhaps up to three additional months for a

decision from the California Supreme Court, after which the case would presumably

return to this Court for yet further deliberations.

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Moreover, events of this morning demonstrate that proponents likely cannot

prevail even if this lengthy procedural detour were resolved in their favor. In a letter

to Congress, the Attorney General of the United States announced the view of the

United States that “classifications based on sexual orientation warrant heightened

scrutiny and that, as applied to same-sex couples legally married under state law, Sec-

tion 3 of” the Defense of Marriage Act (“DOMA”)—which defines “marriage” under

federal law to be “a legal union between one man and one woman”—“is unconstitu-

tional.” Letter from the Attorney General to Congress on Litigation Involving the De-

fense of Marriage Act at 2 (Feb. 23, 2011) (attached as Exhibit A).

These new developments—this Court’s certification order, the California Su-

preme Court’s response to it, and the Attorney General’s announcement that the gov-

ernment will no longer defend DOMA—are materially changed circumstances that

warrant vacatur of this Court’s decision to grant a stay pending appeal. See SEACC v.

U.S. Army Corps of Eng’rs, 472 F.3d 1097, 1101 (9th Cir. 2006).

ARGUMENT

The extraordinary relief of a stay is only warranted—and can only remain in

place—when the stay applicant has made a “strong showing that [it] is likely to suc-

ceed on the merits” and a showing that “the applicant” itself—rather than some other

party—“will be irreparably injured absent a stay.” Nken v. Holder, 129 S. Ct. 1749,

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1761 (2009) (internal quotation marks omitted). Courts must also consider “whether

issuance of the stay will substantially injure the other parties interested in the proceed-

ing; and . . . where the public interest lies.” Id. (internal quotation marks omitted).

These factors weigh overwhelmingly in favor of immediately vacating the stay, par-

ticularly in light of this Court’s order expressing serious concerns about whether pro-

ponents possess standing to pursue this appeal and certifying that “dispositive” ques-

tion to the Supreme Court of California.

1. This Court’s certification order makes it unmistakably clear that proponents

cannot make the requisite “strong showing that [they are] likely to succeed on the

merits” of their appeal. Nken, 129 S. Ct. at 1761 (emphasis added). As that order rec-

ognizes, this Court “cannot consider th[e] important constitutional question” regarding

the constitutionality of Proposition 8 “unless the appellants . . . have standing to raise

it.” Certification Order at 1. In Arizonans for Official English v. Arizona, 520 U.S. 43

(1997), the Supreme Court expressed “grave doubts” as to whether status as a ballot

initiative proponent could confer Article III standing. Id. at 66. In this Court’s view,

“Proponents’ claim to standing depends on Proponents’ particularized interests cre-

ated by state law or their authority under state law to defend the constitutionality of

the initiative.” Certification Order at 6. Those “rights,” however, “have not yet been

clearly defined,” and the Court therefore “request[ed] clarification” from the Supreme

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Court of California “in order to determine whether [it] ha[s] jurisdiction to decide this

case.” Id. at 7. In short, proponents a priori cannot demonstrate a likelihood that they

have standing to appeal, much less a likelihood to prevail on the merits of plaintiffs’

constitutional challenge to Proposition 8.

The absence of a “clearly defined” provision of California law affording propo-

nents “particularized interests” in the constitutionality of Proposition 8 or granting

them “authority . . . to defend the constitutionality of the initiative”—together with the

“grave doubts” expressed by the Supreme Court in Arizonans—eviscerates any notion

that proponents can seriously be suggested to make a “strong showing” that they are

likely to succeed on the merits of their appeal. Nken, 129 S. Ct. at 1761. That this

Court felt compelled to certify the threshold standing question to the Supreme Court

of California standing alone demonstrates that proponents cannot be said to be

“likely” to succeed on the merits of their appeal. To the contrary, the fact that this

Court has now sent a threshold question it acknowledges to be “dispositive” to be re-

solved by another tribunal must mean that proponents are at least as likely to fail on

the merits as succeed. That is not remotely the kind of “strong showing” of likelihood

of success that the Supreme Court has stated is indispensable to the issuance of a stay

pending appeal. Id. Because this Court’s own analysis demonstrates that proponents

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no longer can assert a likelihood of success on the merits—much less a strong show-

ing of that likelihood of success—vacatur of the stay pending appeal is warranted.

2. Recent events have confirmed that, even if they could establish standing to

appeal, proponents would not have a likelihood of success on the merits of plaintiffs’

constitutional challenge to Proposition 8. Today, the Attorney General of the United

States announced that “the President has concluded that given a number of factors, in-

cluding a documented history of discrimination, classifications based on sexual orien-

tation should be subject to a heightened standard of scrutiny” and that “Section 3 of

DOMA, as applied to legally married same-sex couples, fails to meet that standard and

is therefore unconstitutional.” Attorney General Letter at 5. The President has there-

fore instructed the Department of Justice “not to defend the statute.” Id.

The conclusion of the United States that heightened scrutiny applies to classifi-

cations based on sexual orientation is unquestionably correct. See Plaintiffs’ Br. at

58-71. Proposition 8 cannot survive the requirements of heightened scrutiny because

its invidious discrimination against gay men and lesbians could not conceivably fur-

ther an important government interest. Indeed, proponents have made no serious at-

tempt to defend Proposition 8 under that exacting standard.

3. Moreover, vacatur of the stay is appropriate because the certification order

and, more particularly, the California Supreme Court’s response to it, has decisively

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tipped the balance of hardships between the parties overwhelmingly against the con-

tinuation of the stay.

The Supreme Court’s decision in Nken requires a court adjudicating a request

for a stay pending appeal to analyze, on the one hand, “whether the applicant will be

irreparably injured absent a stay,” and, on the other hand, “whether issuance of the

stay will substantially injure the other parties interested in the proceeding.” 129 S. Ct.

at 1761. Proponents have never articulated how they will be personally harmed

(much less irreparably harmed) if plaintiffs and gay men and lesbians like them were

permitted to marry during the pendency of this appeal. Proponents instead invoked

the irreparable harm that assertedly would be suffered by the State if gay men and les-

bians were permitted to marry. Stay Mot. at 66. But the chief legal officer of the

State, the Attorney General, categorically rejected this assertion, stating in his opposi-

tion to proponents’ stay motion that “the harm to [plaintiffs] outweighs any harm to

the state defendants.” Attorney General’s Opp. to Stay at 2. Proponents cannot in-

voke an interest of the State that the State itself denies exists.

The district court found that “proponents do not identify a harm to them that

would result from denial of their motion to stay.” Doc #727 at 7 (emphasis in origi-

nal). Indeed, when asked during trial to identify what harms would befall opposite-

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sex married couples if gay and lesbian couples could marry, proponents’ counsel ac-

knowledged, “I don’t know.” ER 44.

The California Supreme Court’s response to this Court’s certification order now

makes clear beyond peradventure of a doubt that the Attorney General was correct.

The briefing and oral argument schedule announced by that Court strongly suggests

that it will not provide an answer to the certified question for 9-12 months—a full year

after oral argument was heard in this Court, and nearly two years since plaintiffs

proved convincingly to an experienced trial court the merits of their constitutional

claims and their entitlement to injunctive relief. As the district court found, plaintiffs

suffer irreparable harm each day that Proposition 8 continues to deny them the right to

marry. See Doc #727 at 9 (“the trial record left no doubt that Proposition 8 inflicts

harm on plaintiffs and other gays and lesbians in California”). By fencing them off

from “the most important relation in life,” Zablocki v. Redhail, 434 U.S. 374, 384

(1978), Proposition 8 oppresses tens of thousands of couples—and, in a peculiar injus-

tice, their children—with a scarring stigma that causes irreparable pain, anguish, and

humiliation. That the California Supreme Court intends to take the better part of a

year to answer a threshold question of standing law means that the “additional delay”

proponents so easily dismissed in their stay papers now looks to be well more than a

year in length—added to the nearly two years since plaintiffs filed their complaint.

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That sharply and dispositively tips the balance of hardships in favor of plain-

tiffs. In fact, the “balance of hardships” is a tragic misnomer when plaintiffs will suf-

fer grievous harm and the parties seeking the stay will suffer no hardships whatsoever.

Particularly given that proponents point to no injury that they will suffer if gay men

and lesbians are permitted to marry, there can be no justification for prolonging the

suffering of plaintiffs and the tens of thousands of couples like them for an additional

year. Having prevailed at trial, having demonstrated that they had a fundamental right

to marry, and having shown beyond dispute that Proposition 8 works irreparable harm

upon gay and lesbian Californians by denying them that right, it is simply intolerable

for this Court to continue to deny them that right and to perpetuate their pain for such

a length of time—especially given that this Court itself has recognized that Proponents

may well have no right to appeal at all.

The standards long established by every court in this country cannot mean what

they say if a stay of the district court’s judgment is continued for one day longer in

this case. Plaintiffs have a constitutional right to marry, and this Court’s stay pending

appeal denies to them the right to spend their lives together in marriage. This Court’s

January 4 order and the California Supreme Court’s response make clear that the stay

can no longer be justified and the “additional delay” it imposes will not be fleeting.

Given these changed circumstances, the stay pending appeal should be vacated.

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CONCLUSION

For the foregoing reasons, the Court should vacate the stay pending appeal.

Dated: February 23, 2011

By: /s/ Theodore B. Olson

GIBSON, DUNN & CRUTCHER LLP
Theodore B. Olson
Matthew D. McGill
Amir C. Tayrani
1050 Connecticut Avenue, N.W.
Washington, D.C. 20036
Telephone: (202) 955-8668
Facsimile: (202) 467-0539
Theodore J. Boutrous, Jr.
Christopher D. Dusseault
Theane Evangelis Kapur
Sarah E. Piepmeier
Enrique A. Monagas
333 S. Grand Avenue
Los Angeles, California 90071
Telephone: (213) 229-7804
Facsimile: (213) 229-7520

BOIES, SCHILLER & FLEXNER LLP

David Boies
Jeremy M. Goldman
Theodore H. Uno
333 Main Street
Armonk, New York 10504
Telephone: (914) 749-8200
Facsimile: (914) 749-8300
Attorneys for Plaintiffs-Appellees
KRISTIN M. PERRY, SANDRA B.
STIER,
PAUL T. KATAMI, and JEFFREY J.
ZARRILLO

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Exhibit A
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@ffi« "f til' l\tt"rll'~ !!l,"""l

11fas~in9to n . ID. QL 20.53 L1

February 23,2011

The Honorable John A. Boehner

Speaker
U.S. House of Re-presentatives
Washington, DC 20515

Re: Defense of Marriage Act

Dear Mr. Speaker:

After careful consideration, including review of a recomme ndation from me, the
President of the United States has made the detenninalion that Section 3 of the Defense of
Marriage Act ("'DOMA"), 1 U.s.c. § 7,1 as applied 10 same·sex couples who are legally married
under state law, violates the equal protection component of the Fifth A mendment. Pursuant \0
28 U.S.C. § 5300, I am writing to advise you of the Executive Branch's determinatio n and to
inform you ofthc steps the Depanmem will take in two pending DOMA cases to impiemenllhat
determination.

While the Depanmenl has previously ddended DOMA against legal challenges involving
legall y married same·sex couples, recent lawsuits that challenge the constitutionality of DOMA
Section 3 have caused the President and the Dcpanment 10 conduct a new examination ofthe
defense of this provision. In particular, in November 201 1, plaintiffs filed tWO new lawsuits
challenging the constitutional ity of Section 3 ofDOMA in jurisdictions without precedent on
whether sexualo{)rientation classifications are subject to rational basis review or whether they
must satisfy some form of heightened scrutiny. Windsor v. United Sioles, No. I :1 0<v·8435
(S. D.N.Y.); Pedersen v. OPM, No. 3:IO<v·1750 (D. Conn.). Previously, the Administration has
defended Section 3 in jurisdictions where circuit courts have already held thaI classifications

, DOMA Section J states: "In dctennining the meaning orany Act of Congress, Of' of any ruling. I'Cgulation, Of'
interptetalion ofthe various administrative bureaus and agencies of the United States, the wOf'd 'malT;agc' means
only .1e,,1 union bc1wan one man and one woman lIS husband and wife, and the WOf'd 'spouse' rcfeTl only to a
person orlM opposite sex who is. husband or a wife.~
Case: 10-16696 02/23/2011 Page: 17 of 23 ID: 7656998 DktEntry: 303

based on sexual orientation ate subjecllo rational basis revicw, and it has advanced arguments to
l
defend DOMA Section 3 under the binding standard that has applied in those cases.

These ncw lawsuits, by contrast, will require the Depanment to take an affirmative
position on the level of scrutiny that should be applied to DOMA Section 3 in a cireuit without
binding precedent on the issue. As described more fully below, the President and I have
concluded that classifications based on sexual oricntation warrant heightened scrutiny and that,
as applied to same-sex couples legally married unde r statc law, $cction 3 of DOMA is
unconstitutional.

Sta ndard of R eview

The Supreme Court has yet to rule on the appropriate level of scrutiny for classifications
based on scxual orientation. It has, however, rendered a number of decisions that set forth the
criteria that should inform this and any o ther judgment as 10 whether heigh tened scrutiny applies:
( I) whcthe r the group in quest ion has suffered a history of discrimination; (2) whether
individuals " exhibit obvious, immutable, or disti ngu ishing characteristics that define them as a
discrete group"; (3) whether the group is a minority or is politically powerlcss; and (4) whether
the characteristics distinguishing the group have little relation to legitimate policy objectives or
10 an individual's "ability to perform or contribute to society." See Bowen v. Gi/liard, 483 U.S.
587,602-03 (1987); Cityo/Cleburne v. Cleburne Living Or., 473 U.S. 432, 441-42 (1985).

Each ofthesc factors counsels in favor of being suspicious of classifications based on

sexual oricntation. First and most importantly, there is, regrettably. a significant history of
purposeful discrimination against gay and lesbian people, by governmental as ....'Cll as privatc
entities, based on prejudice and stereotypes that continue 10 have ramifications today. Indeed,
until very recently, states ha..·c "dcmean[ cd] then cxistencc" of gays and lcsbians "by making
their private sexual conduct a crime." LAwrence \'. Texas, 539 U.S, 558, 578 (2003).1

l See, ~. R., [)rugfft'kh v. U.s. lkparTmtN oflh~ TrtaS"?', 201 t WI. 17,,02 (N.D. Cal. Jan. 18, Wt I): Gill.,. OfJic~
u/PersOtlMI MUlltJgemtlll, 699 F. Supp. 2d 374 (D. Mm. 2010): Smtll v. CO""", ofOrungt, 374 F. Supp, 2d 861.
S80 (C.D. CIi.,200'); Wilson v. Ab, 354 F.Supp.2d 1298, 1308 (M .D. Fta. 2005): In rt Kumiu, 115 B.R. 123, 14'
iBLutcy. W.O. Wasil. 2004); In re UVtIlSOfl, '87 F.ld 925, 91 1 (9tIt Cir. E.D.R. PI.., Administtative Ruling 20(9).
Wllile signi ficant. tllat hiSiory of discrim ination i$ different in some respects from tlte discrimination that burdened
Afi"ican,Amcriclns and women. Su Aduru"dConslrt<ctrJrJ. Inc. v. P~nu, 'I' U.S. 200, 216 (t995) (classifications
based on race "must be viewed in light or tile lIistorical fact \ltat the cenUllI pwpose oftlte Founten\lt Amendment
was to eliminate nlCial discrimination emanating from officialsoUfces in tile States," and "[tJllis strong policy
render$ racial classifications 'constitutionally suspecl."'): U"il~d Stules v. Virgill/U. 518 U.S. 515, 531 (1996)
(observing that '''(HJT Nation lias lIad a long and unfonunate history of leX discrimination'" and pointing out tile
denial orthe right to vote to women Wltil 1920). In the case ofscxual orientation, some oflhe discrimination has
betn baStd on the incomc! belitf,hat sexual orientation is a behaviol1ll cltanlcteris!;c that can be changed 01 subject
10 moral approbation. C/ Ciebur&, 47) U.S. at 44] (heightened scrutiny may be wlLIT&nted fOT c~teristics
"beyond tile individual's control" and that "very likely reflect outmoded nacions orthe re]ativt capabilitits or' tile
group at iuue): Boy S<uuts 0/America v. Dalt, no U.S. 640 (2000) (Stevens, J., dissenting) ("Unfavolllble opinioll5
about hom05uuals 'have ancient IOOlS.'R (qUOling Bo ..~,s, 471 U.S.•t ]92) .

2
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SC{:ond, while sexual orient3l ion carrics no visible badge, a growing scientific consensus
accepts that sex ual orientation is a characteristic that is immutable, see Richard A. Posner, Sex
and Reason 101 (1992); it is undoubtedl y unfair to require sexual orientation to be hidden from
view to avoid discri mination, see Don't Ask, Don't Tell Repeal Act of201O, Pub. L No. 111-
321,124 Stat. 3515 (2010).

Third, the adoption of laws like those at issue in Romer v. £I'olls, 517 U.S. 620 (1996),
and Lawrence, the longstanding ban on gays and lesbians in the military, and thc absence of
federal protection for employment discrimination o n the basis of sexual orientation show the
group to have limited political power and "ability to attract the tfavorablc) attention of the
lawmakers." Cleburne, 473 U.s. at 445. And wh ile the enactment of the Matthew Shepard Act
and pending repeal ofOon 't Ask, Don't Tell indicate that the political process is not closed
entirely to gay and lesbian people, that is not the standard by which the Court has judged
"political powerlessness." Indeed, when the Court rulcd that gende r-based classifications were
subjC{:t to heightened scrutiny, womcn a lready had won major political vic tori es such as the
Nine teenth Amendment (righ t to vote) and protection under T itle VI I (e mp loyment
discrimination).

Finally. there is a growing acknowledgment that sexual o ri entation "bears no relation to

abi lity to perfonn or contribute to society." Frontiero v. Richardson, 411 U.S. 677, 686 (1973)
(plurality). Recent evol utions in legislation (including the pending repeal of Don't Ask, Don' t
Tell), in community practices and att itudcs, in case law (including the Supreme Court's holdings
in Lawrence and Romer), and in social science regarding $Cxual orientation all make clear that
sexual orientation is not a characteristic that generally bears o n legitimatc policy objectives. See,
e.g.. Statement by the President on the Don't Ask, Do n' , Tell Repeal Act of2010 ("It is time to
recogniU' that sacrifice, valor and integrity arc no more defined by sexual orientation than they
are by race or gende r, religion Of creed.")

To be sure, there is substantial cireuit court authority applying rat ional basis review 10
sexual-orientation classifications. We have carefully examined each of those decisions. Many
of them reason only that if consensual same-sex sodomy may be crim inalized under SowerJ v.
Hardwick, then it follows that no heightened review is appropriate - a line of reasoning that does
nOI survive the overruling of Bowers in Lawrence v. Texas , 538 U.S. 558 (2003).~ Others rely on
claims regarding " procreational responsibility" that the Department has disavowed already in
liligation as unreasonable, or claims regarding the immutability of sexual orientation that we do
not believe can be re conciled with more recent social seienee understand ings.' And none

• $ttl Equalify FoundatiQn~. Cit)' o/Cindnnafi. 54 F.3d 26t, 266-67 &. n. 2. (61h Cif. 1995); Steffan~. Perry, 41
F.3d 677, 685 (D.C. Cir. 1994); Woodward v. United SUltfIJ, 871 F.2d 1068. 1076 (Fed . Cir. 1989); 8en-Shalom v.
Marsh. SSI F.2d 454. 464 (7th Cit. 1989); Padula ". WebJrer. 822 f .2d 97. t03 (D.C. Cit. 1987).

'See. I.g . Lofton v. Secretary o/the Dep'/ o/Chlldren &. Family Strvs.• 358 F.3d 804. 818 ( I tth Cir. 2004)
(dis~ussing thild-rearing fldionale): High Tech G"}'I v. Dt/ensr III/11m. Sec. CltlUafICfI Office, 895 F.2d 563. 57 t
(91.h Cir. (990) (dis<:ussing immutability). As IIOlrd, this Administnltion has already disa~owed in litigation the

3
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engages in an examination of all the factors that the Supreme Court has identified as relevant to a
decision about the appropriate level of scrutiny. Finally. many of the more recent decisions have
relied on the fact that the Supreme Court has not recognized that gays and lesbians constitute a
suspect class or the fact that the Court has applied rational basis review in its most recent
decisions addressing classifications based on sexual orientation, Lawrence and Romer.' But
neither of those decisions reached, let alone resolved. the level of scrUliny issue because in both
the Court concluded that the laws could not even survive the more defe rential rational basis
standard.

Application to Section 3 of DOrt'IA

In reviewing a legislative classification under heightened scrutiny, the government must

establish that the classification is "substantia ll y related to an important government objective."
Clark v, Jeter, 486 U.S. 456,461 (1988). Under heightened scrutiny, "a tenable justification
must desc ri be actual state purposcs, not rationalizations for actions in fact differently grounded."
United Statcs 1'. Virginia, 518 U.S. 515, 535-36 (1996). ''The justification must be genuine. not
hypothesized or invented post hoc in response to litigation." Id. at 533.

In other words, under heightened scrutiny, the United States cannot defend Sectio n 3 by
advanc ing hypothetical rationa les, independent of the legislative reco rd, as it has done in cireuits
,....here precedent mandates appl ication of rationa l basis review. Instead, the United States can
defend Section 3 only by invoking Congress' actual justifications for the law.

Moreover, the legislative record unde rlying DOMA's passage contains discussion and
debate that undennines any defense under heightened scrutiny. The record contains nwne rous
expressions reflecting moral disapproval of gays and lesbians and thei r intimate and family
relationships - precisely the kind of stereotype-based thinking and animus the Equal Protection
Clause is designed to guard against.7 See Cleburne, 473 U.S. at 448 ("mere negative attitudes, or

Viumenl thai DOMA serves a governmental interesl in 'Tesporuible procrulion and chikl-rearing." H.R. Rep. No.
104.u4. It 13. As the DcplIrllMnt has explained ill numCTOUS filings. since the enaclment ofOOMA. mallY leading
medicll , psychological, and social ",-elfare organizations ha~ concluded, based on lIumerous studies, thai children
raised by gay and lesbian pucnlS are as likely 10 be "'-ell·adjusted as chil~1I raised by heterosexual parenls .
• S<tt Cool: v. Gatts. S28 F.ld 42, 6t (lSI Cir. 2008); Citiuru/OI' Equal PnJl, v. Bruning, 455 F.ld 859. 866 (8th CiT.
2006); Johru()ll v. Johnson. l8S F.ld S03. S32 (Sth Cir. 2004); V,nl!)' v. W)'('ht, 293 F.3d 726, 732 (4th CiT. 2002);
Equollt)' Foundation o/Gr.-OteT Cincinnati. Inc. v. City of Cincinnati, 128 F.ld 289. 292·9.:1 (61h Cir. 1991).

, Su. ',g .. H.R. Rep. al U - t6 (judgmenl (opposing same-.r;cx marriage] entai ls bolh moral dis.approval of
homO$Cxualil)' iUId a moral conviction thai heterosuuality better comports wilh trIIdi lionaJ (especially Judea-
ChriSlian) mora Illy"); Id, al 16 (s.ame-$Cx marriage "legitimate! a public union. I legal slatus thai most people
feel ought 10 be illegitimate" and "pUl]S] a Slamp of approval ... on a union Ihal many people ... thin k is
immoral"); Id. at 1S ("Civil laws that permit only heterosexual marriage ren~ all(! honor a collective moral
judg~nliboul human sexualiIY"); id. (rcaiO!lli behind heterosexual mamagc-procrealion and child-reaTing-are
~i n accord with nature and hence hBve a moral component"'); id. I I 31 (favorably cilillg the holding in 80.. 'erllhal an
~ant i·sodomy law served Ihe ralional purpose of cxpres.sinl!: Ihe presumed belief ••. thai homosexual sodomy is
immoral and unacceptable"); id. at 17 n.56 (ravorably ciling Sialement in dissenting opinion in Romer thai "[I]his
Court has...o busineS$ •.. pronouncing that 'animosil)" loward homosexu.alil)' is evin.

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fear" are not pennissible bases for discriminatory treatment); see allo Romer, 517 U.S. at 6]5
(rejecting rationale that law "''as supponed by "the libenies of landlords or employers who have
personal or religious objections to homosexuality"); Palmore v. Sidolli, 466 U.S. 429, 43] (1984)
("'Private biases may be outside the reach of the law, but the law cannot, directly or indirectly,
give them effect.").

Application to Second Circuit Cases

After careful consideration, including a review of my recommendation, the President has

concluded that given a number of factors, including a documented history of discri mination,
classifications based on sexual orientation should be subject to a heightened standard of scrutiny.
The President has also concluded that Section] of DOMA, as applied to legally married same-
sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion,
the President has instructed the Department not to defend the statute in Windsor and Pedersen,
now pending in the Southern District of New York and the District of Connecticut. I concur in
this detennination.

Notwithstanding this detennination, the President has infonned me that Section 3 will
continue to be enforced by the Executive Branch. To that end, the President has instructed
Executive agencies to continue to comply with Section 3 ofDOMA. consistent with the
Executive's obligation 10 take care that the laws be faithfully executed, unless and until Congress
repeals Section] or the judicial branch renders 3 definitive verdict against the law's
constitutionality. This course of action respects the actions of the prior Congress that enacted
OOMA, and it recognizes the judiciary as the final arbiter of the constitutional claims raised.

As you know, the Department has a longstanding practice of defending the

constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense, a
practice that accords the respect appropriately due to a coequal branch of government. However,
the Department in the past has dec lined to defend statutes despite the avai labi lity of
professionally responsible arguments, in part because the Department does not consider every
plausible argument to be a "reasonable" one. '·lD]ifTerent cases can raise very different issuC5
with respect to statUtes of doubtful constitutional validit),," and thus there are "a variety of
factors that bear on whether the Depanment will defend the constitutional ity ofa statute." leiter
to Hon. Orrin G. Hatch from Assistant Attorney General Andrew Pois at 7 (Mar. 22, 1996). This
is the rare case where the proper course is to forgo the defense of this statute. Moreover, the
Department has declined to defend a statute "in cases in wh ich it is manifest that the President
has concluded that the statute is unconstitutional," as is the case here. Seth P. Waxman,
Defending Congress, 79 N.C. L.Rev. 107], 1083 (200 1).

In light of the foregoing, I will instruct the Department's lawye rs to immediately infonn
the district courts in Windsor and Pe<lersen of the Executive Branch's view that heightened
scrutiny is the appropriate standard of review and that, consistent with that standard, Section] of

5
Case: 10-16696 02/23/2011 Page: 21 of 23 ID: 7656998 DktEntry: 303

DOMA may not be constitutionally app lied to same-sex couples whose marriages are legally
J'e<:og,nized under state law. If asked by the district courts in the Second Circuit for the position
of the United States in the event those eourts detennine that the applicable standard is rational
basis, the Department will stale that, consistent with the position it has taken in prior cases, a
reasonable argument for Section 3's constitutionality may be proffered und er that permissive
standard. Our attomeys will also notify the courts of our interest in providing Congress a full
and fair opportunity to participate in the litigation in those cases. We will remain parties to the
ease and continue to represent the interests o f the United Stales throughout the litigation.

FunhemlOre, pursuant to the President's instructions, and upon further noti fication to
Congress, I will instroct Department attorneys to advise courts in other pending DOMA litigation
of the President'S and my conclusions that a heightened siandard should apply, that Seclion 3 is
unconsti tutional under that standard and that the Department will ceasc defense o f Seetion 3.

A motion 10 dismiss in the Windsor and Pedersen cases would be due on March 11, 201 1.
Please do not hes itate to contact us if you have any questions.

Sincerely yours,

Eric H. l-lolder, Jr.

Attorney Ge neral

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 Case: 10-16696 02/23/2011 Page: 22 of 23 ID: 7656998 DktEntry: 303

9th Circuit Case Number(s) 10-16696

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 Case: 10-16696 02/23/2011 Page: 23 of 23 ID: 7656998 DktEntry: 303

SERVICE LIST

Thomas Brejcha Stuart J. Roth

THOMAS MORE SOCIETY AMERICAN CENTER FOR LAW
29 S. La Salle Street, Suite 440 AND JUSTICE
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