Justice Department opposes class certification, preliminary injunction barring deportation of plaintiffs in DOMA challenge Aranas v. Napolitano
September 21, 2012
By Scottie Thomaston
In Aranas v. Napolitano, the class-action challenge to Section 3 of the Defense of Marriage Act as it applies to immigration, there is an ongoing dispute over the filing of briefs and the defense of the law. The Bipartisan Legal Advisory Group (BLAG) is tasked with defending Section 3, and it has filed a motion to intervene in the case which has not been granted. Meanwhile it is arguing that it should be allowed to defend the statute in full, filing large briefs in opposition to the motion for class certification and the motion for a preliminary injunction to bar deportation of the plaintiffs. In defense of its arguments, BLAG has suggested that the Justice Department would not adequately oppose these motions, since it supports the plaintiffs’ legal position on Section 3 of DOMA.
Writing in its request for a 28 page brief instead of the standard 25, the Justice Department suggests that, “Plaintiffs’ Motion for a Preliminary Injunction advances legal arguments involving complex constitutional issues of equal protection and substantive due process. In addition, the preliminary injunction touches on technical immigration issues, which cannot be adequately addressed in a cursory manner.”
They suggest in their opposition to class certification (which would allow the parties to challenge Section 3 of DOMA as a class-action) that the definition used by the plaintiffs to form their class is defective and overly broad. They write that some of the people in the class would lack Article III standing, the legal right to appear in federal court to redress an injury. The brief goes on to say that the request fails all four of the requirements for class certification: commonality (the class has to be challenging common questions of law or fact, in essence, suffering the same injury); typicality, the claims of the class have to be the same as the claims of the parties to the class, and one of the plaintiffs is seeking a different form of redress than the others; adequacy of representation, meaning they have to show that their claims represent that of the class, and these don’t because previous DOMA challenges as applied to immigration “have all involved situations where a U.S. citizen spouse petitioned or is petitioning for their same-sex alien spouse through an I-130 Petition for Alien Relative (a non-discretionary benefit). Not a situation where an alien is seeking discretionary relief on her own behalf,” and the lead plaintiff is doing just that; and lastly, the numerosity requirement, that the class must show that it is so numerous the challenge should only go forward as a class action, and “[i]n their motion for class certification, Plaintiffs have not suggested or even speculated as to the number of members in the proposed class, nor have they introduced any evidence from which an estimate could reasonably be inferred. Instead, Plaintiffs state as fact — without citing any support — that there is a “constantly increasing number of lawfully married same-sex couples and their immigrant children.”.”
While continuing to suggest that Section 3 of DOMA is unconstitutional and laws classifying on the basis of sexual orientation are suspect and warrant a heightened form of judicial scrutiny, the Justice Department opposes a preliminary injunction barring deportation of the plaintiffs. The Justice Department makes four points: (1) plaintiffs have not made a showing of irreparable harm, because any harm, they write, can be remedied by narrower relief, and the alleged harm to the class that is asking to be formed is speculative, (2) issuing an injunction would cause the United States irreparable harm, because the executive branch is enforcing DOMA: “there remains a tangible and significant institutional harm that is caused by a broad lower court injunction against the enforcement of Section 3 of DOMA that militates against the issuance of a broad injunction here”, (3) the balance of harms weighs against issuing the injunction until the Supreme Court rules on this issue, likely this year, and (4) the court has no authority to issue an injunction against deportation, and has no authority to grant a class-wide injunction, anyway. So, the Justice Department is asking the judge to deny the injunction and to wait on the Supreme Court to finally rule before the law goes unenforced.
h/t to Kathleen for these filings
DOJ opposition to class certification:8:12-cv-01137 #35
Motion to exceed page limit:8:12-cv-01137 #38
Opposition to preliminary injunction:8:12-cv-01137 #39