In The United States District Court For The District of Massachusetts

Case 1:11-cv-11905-RGS Document 37 Filed 05/15/12 Page 1 of 5
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS ____________________________________ ) SHANNON L. MCLAUGHLIN, et al., ) ) Plaintiffs, ) ) v. ) Civil Action No. 1:11-cv-11905 ) Judge Richard G. Stearns LEON PANETTA, et al., ) ) Defendants. ) ____________________________________) DEFENDANTS RESPONSE TO MOTION OF THE BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES FOR LEAVE TO INTERVENE Defendants Leon Panetta, Secretary of Defense; Eric H. Holder, Jr., Attorney General; Eric Shinseki, Secretary of Veterans Affairs; and the United States of America, by their undersigned counsel, hereby respond to the motion of the Bipartisan Legal Advisory Group (BLAG) of the United States House of Representatives to intervene as a party defendant in this case for the purpose of (i) defending two statutes Section 3 of the Defense of Marriage Act (DOMA), 1 U.S.C. 7, and 38 U.S.C. 103(3), (31) against substantive due process and equal protection challenges under the Due Process Clause of the Fifth Amendment, and (ii) litigating related jurisdictional issues, if any. See BLAGs Mot. to Intervene and Mem. in Support (ECF Nos. 32-33). As the Attorney General previously has stated, the Department of Justice is interested in providing Congress a full and fair opportunity to participate in this and other cases challenging the constitutionality of Section 3 of DOMA and 38 U.S.C. 103(3), (31) under the equal protection component of the Due Process Clause. Consistent with the Attorney Generals statement, Defendants do not oppose BLAGs motion to intervene to present arguments in support of the constitutionality of Section 3 of DOMA and 38 U.S.C. 103(3), (31)
under the equal protection component of the Due Process Clause. However, because the Department of Justice will continue to defend against substantive due process challenges to those two statutes, BLAG should not be permitted to intervene to present substantive due process arguments. 1 The Executive Branch, through the Department of Justice, represents all defendants in this litigation, see 28 U.S.C. 516; see also Buckley v. Valeo, 424 U.S. 1, 138 (1976) (the conduct of litigation on behalf of the United States falls exclusively within the Presidents constitutional powers), and only a judgment against Defendants can redress Plaintiffs alleged injuries. Although the Executive Branch believes that Section 3 of DOMA and 38 U.S.C. 103(3), (31) are subject to heightened constitutional scrutiny and are unconstitutional under that standard, the Executive departments and agencies will continue to comply with Section 3 of DOMA and 38 U.S.C. 103(3), (31), pursuant to the Presidents direction, unless and until Section 3 of DOMA and 38 U.S.C. 103(3), (31) are repealed by Congress or there is a definitive ruling by the Judicial Branch that they are unconstitutional. Accordingly, there remains a live case or controversy between Plaintiffs and Defendants. See INS v. Chadha, 462
Contrary to BLAGs assertion that the Department of Justice has failed to advance any meaningful defense of DOMA Section 3 against substantive due process challenges, see ECF No. 33 at 4 n.2; see also ECF No. 33 at 5 n.3, the Department has defended against such challenges in the same manner as it would in any litigation, when the issue is properly raised. For example, the Department recently moved for summary judgment on substantive due process challenges to DOMA Section 3 in Dragovich v. Dept of the Treasury, No. 4:10-CV-01564 (N.D. Cal.), ECF No. 116 at 9-14 and ECF No. 121 at 9-11. The Department has also appropriately defended against substantive due process challenges to DOMA Section 3 in Bishop v. Oklahoma, No. 04-CV-00848 (N.D. Okla.), ECF No. 225. While BLAG faulted the Department for failing to mount a defense in the consolidated appeals of Gill v. OPM and Massachusetts v. HHS, Nos. 10-2204, 10-2207 and 10-2214 (1st Cir.), the plaintiffs did not assert a substantive due process claim in those cases, and to the extent they raised an alternative substantive due process argument on appeal in support of the position that heightened scrutiny applies, the Department appropriately addressed it in its brief. See Combined Reply Br. and Response Br. of the Federal Defs, ECF No. 116298972, at 9-10 n.2 (1st Cir. Dec. 21, 2012). 2
U.S. 919, 930 (1983). Although Congresss interest in the constitutional validity of a law does not confer standing to enter an action as a party any more than citizens with a generalized grievance would have standing to do so, see Valley Forge Christian College v. Americans United for Separation for Church and State, Inc., 454 U.S. 464, 482-83 (1982); Newdow v. U.S. Congress, 313 F.3d 495, 499-500 (9th Cir. 2002), the Executive Branchs continuing role in the litigation, as described further below, ensures the continuing existence of a justiciable case or controversy and makes it unnecessary for BLAG to have an independent basis for standing in order to participate in the litigation to present arguments in support of the constitutionality of Section 3. 2 Accordingly, Defendants have attached a proposed order permitting BLAGs intervention, consistent with the Executive Branchs role in this case. To fulfill the Attorney Generals commitment to provide Congress a full and fair opportunity to participate in the litigation, Defendants will take the procedural steps necessary to enable BLAG to present arguments in support of the constitutionality of Section 3 of DOMA and 38 U.S.C. 103(3), (31) under the equal protection component of the Due Process Clause. Defendants intend to file appropriate motions, purely as a procedural matter, to ensure that this Court can consider arguments on both sides of the constitutional issue and that the Court has jurisdiction to enter judgment on the basis of those arguments. This approach is consistent with what the Department of Justice has done in prior cases in which the Executive Branch has taken
As explained above, the Attorney General represents all defendants in this suit. Section 2403 of Title 28, cited in BLAGs memorandum (ECF No. 33 at 12-13), is thus inapplicable as a basis for BLAGs intervention. Section 2403(a) provides for certification to the Attorney General when an Act of Congress is challenged in a suit to which neither the United States nor its agencies or officers are already parties, and provides for intervention by the United States, which is represented by the Department of Justice. Defendants agree, however, that BLAGs intervention for purposes of presenting arguments in support of the constitutionality of Section 3 of DOMA and 38 U.S.C. 103(3), (31) under the equal protection component of the Due Process Clause is both appropriate and consistent with past practice. 3
the position that an Act of Congress is unconstitutional but announced its intention to enforce or comply with the law pending a final judicial determination of the constitutional issue: the cases proceeded, Congress or the Senate or the House of Representatives filed briefs supporting the constitutionality of the statute, and when the lower courts agreed with the Department of Justices position that the statute was unconstitutional, the Department took appropriate steps to invoke the jurisdiction of the Supreme Court in order to provide an opportunity for that Courts full consideration of the constitutional question. See, e.g., Chadha, 462 U.S at 928, 930-93 (Solicitor General filed an appeal from the Court of Appeals decision); United States v. Lovett, 328 U.S. 303, 306-307 (1946) (Solicitor General filed a petition for a writ of certiorari).
Dated: May 15, 2012
Respectfully Submitted,
STUART F. DELERY Acting Assistant Attorney General CARMEN M. ORTIZ United States Attorney ARTHUR R. GOLDBERG Assistant Branch Director /s/ Jean Lin JEAN LIN Senior Trial Counsel U.S. Department of Justice Civil Division Federal Programs Branch 20 Massachusetts Avenue, NW Washington, DC 20530 Phone: (202) 514-3716 Fax: (202) 616-8470 email: [email protected]
CERTIFICATE OF SERVICE I certify that on May 15, 2012, a true copy of the foregoing Defendants Response to Motion of the Bipartisan Legal Advisory Group of the U.S. House of Representatives for Leave to Intervene was served upon following attorney of record for each other party through the Courts Electronic Case Filing system: Ian McClatchey, Esq. [email protected] CHADBOURNE & PARKE LLP 30 Rockefeller Plaza New York, NY 10112 Abbe David Lowell, Esq. [email protected] Christopher D. Man [email protected] CHADBOURNE & PARKE LLP 1200 New Hampshire Ave., NW Washington, DC 20036
John M. Goodman, Esq. [email protected] David McKean [email protected] SERVICEMEMBERS LEGAL DEFENSE NETWORK Post Office Box 65301 Washington, DC 20035
Paul D. Clement, Esq. H. Christopher Bartolomucci, Esq. Conor B. Dugan, Esq. Nicholas J. Nelson, Esq. BANCROFT PLLC 1919 M. Street, N.W. Suite 470 Washington, DC 20036 /s/ Jean Lin JEAN LIN
Case 1:11-cv-11905-RGS Document 37-1 Filed 05/15/12 Page 1 of 1
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS ____________________________________ ) SHANNON L. MCLAUGHLIN, et al., ) ) Plaintiffs, ) ) v. ) Civil Action No. 1:11-cv-11905 ) Judge Richard G. Stearns LEON PANETTA, et al., ) ) Defendants. ) ____________________________________) [PROPOSED] ORDER Upon consideration of the Motion of the Bipartisan Legal Advisory Group of the U.S. House of Representatives for Leave to Intervene (ECF No. 33), Plaintiffs opposition to the motion (ECF No. 34), and Defendants response to the motion, it is hereby ORDERED that the Bipartisan Legal Advisory Group is permitted to intervene to present arguments in support of the constitutionality of Section 3 of the Defense of Marriage Act, 1 U.S.C. 7, and 38 U.S.C. 103 (3), (13) under the equal protection component of the Due Process Clause of the Fifth Amendment, consistent with role of the Department of Justice in this case as counsel for Defendants. SO ORDERED. DATED: ______________________ _____________________________ RICHARD G. STEARNS U.S. District Judge

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Dated: May 15, 2012

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