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Justice Department and plaintiffs in Aranas v. Napolitano, challenging Section 3 of DOMA, oppose dismissal of the case

DOMA trials

By Scottie Thomaston

On September 14, the Bipartisan Legal Advisory Group (BLAG), who has stepped in to defend Section 3 of the Defense of Marriage Act after the Justice Department determined the law is unconstitutional under a heightened form of judicial scrutiny that should be applied to laws that classify on the basis of sexual orientation, filed its motion to dismiss Aranas v. Napolitano (a class-action DOMA challenge as applied to immigration.) Their brief was over the size requirements for these motions, so they requested leave to file an oversized brief. The judge rejected their request, so they have tried, repeatedly, to re-file almost the exact same request, and it continues to be rejected.

Given that a response to the motion is due, and plaintiffs are unsure which arguments they are responding to (as the filed motion was rejected), the plaintiffs are asking the judge “for an order continuing hearing on intervenor-defendant Bipartisan Legal Advisory Group’s (BLAG) motion to dismiss (Dkt. 37) until after the Court has ruled on defendants’ pending motion to dismiss, or in the alternative, until 30 days following either the Court’s granting BLAG leave to file an oversize brief or BLAG’s filing a brief in support of its motion to dismiss within the page limit fixed by Local Rule 11-6.” Essentially, the plaintiffs are saying they need extra time to respond to BLAG’s motion to dismiss because they don’t yet know which arguments the judge is accepting.

They write that, “Fundamental fairness requires that plaintiffs have fair notice of what arguments they must answer and a reasonable time to answer them.”

BLAG filed a motion opposing any effort to give the plaintiffs more time. They dispute the timeline as told by the plaintiffs, and they write that, “[...]Plaintiffs have not been prejudiced by the fact that this Court has not yet accepted for filing the House’s memorandum in support of its motion to dismiss.” And, because the oversized brief was filed, “[p]laintiffs have known exactly what arguments the House will make for more than three weeks.”

The Justice Department had previously filed a motion opposing class certification and a preliminary injunction barring deportation of the plaintiffs and those similarly situated (as it would mean a nationwide injunction against the Executive Branch performing its constitutional obligations), but reiterating that its position is that Section 3 of DOMA is an unconstitutional violation of equal protection under a heightened form of judicial scrutiny.

They have now filed an opposition to BLAG’s motion to dismiss the plaintiffs’ equal protection claims. They argue what they have said all along: gays and lesbians fit squarely within the criteria the Supreme Court has laid out as a guide for which groups warrant heightened judicial scrutiny. Gays and lesbians face a long history of discrimination by federal, state, and local governments, as well as private discrimination. Homosexuality, they write, bears no relation to their ability to contribute to society. Gays and lesbians are relatively politically powerless. And, though it isn’t a necessary hurdle to jump over, homosexuality is an immutable characteristic. Since laws classifying gays and lesbians warrant heightened judicial scrutiny, Section 3 of DOMA fails that test, and the case should not be dismissed, they write.

UPDATE: The judge has issued an order granting some of the requests for oversized briefs, denying others, and setting a newer schedule: “BLAG shall file on or before October 22, 2012 a Memorandum of Points and Authorities in Support of its Motion to Dismiss that is no more than 30 pages in length, excluding exhibits and indices. Defendants and Plaintiffs shall file their Oppositions to BLAG’s Motion to Dismiss on or before October 30, 2012 and each Opposition shall be no more than 30 pages in length, excluding exhibits and indices. BLAG shall file its Reply, if any, on or before November 6, 2012. Argument on BLAG’s Motion to Dismiss, Defendants’ Partial Motion to Dismiss, and Plaintiffs’ Motions for Preliminary Injunction and Class Certification will be heard on November 20, 2012 at 10AM. The November 6, 2012 hearings are hereby vacated”

h/t Kathleen for these filings

Filings and orders on BLAG’s requests for oversized briefs are here.

DOJ opposition to motion to dismiss:8:12-cv-01137 #51

Plaintiffs’ application for continuance:8:12-cv-01137 #52

BLAG’s opposition to request to continue:8:12-cv-01137 #53

Judge’s order:8:12-cv-01137 #55

14 Comments

  • 1. SHOES THROWER  |  October 13, 2012 at 11:47 am

    It is important to note that the DoJ is still opposing the due process challenge.

    Ity argues that the right at issue is not a right to same-sex marriage, but a right to immigration benefits, which is not a fundamental right.

    Even if the right at issue was a right to same-sex marriage, DOMA, as applied in this case, does not penalize the plaintiffs for entering into a same-sex marriage, nor does it penalize the state for recognizing their union as a marriage. As the DoJ explained in another case.

    Section 3 of DOMA merely clarifies that federal policy is to make certain benefits
    available only to those persons united in heterosexual marriage, as opposed to any other possible
    relationship
    defined by law, family, or affection. As a result, gay and lesbian individuals who unite in matrimony are denied no federal benefits to which they were entitled prior to their marriage; they
    remain eligible for every benefit they enjoyed beforehand
    . DOMA simply provides, in effect, that as
    a result of their same-sex marriage they will not become eligible for the set of benefits that Congress
    has reserved exclusively to those who are related by the bonds of heterosexual marriage.

    Defendant United States's Brief in Support of Motion to Dismiss in Smelt v. United States, CV09-00286 (C.D. Cal.), at 27-28

    and of course, same-sex marriage is not a fundamental right.

  • 2. Mike in Baltimore  |  October 13, 2012 at 7:47 pm

    Not all same sex immigration cases involve married couples, because some of the couples have a participant who lives in a state that doesn't allow and/or recognize marriage equality. Such as Hawai'i, or New Jersey, or Ohio, or Mississippi – actually in about 44 states.

    And remember, if they would get married, then DOMA interferes again, as it says that the Federal government doesn't recognize marriage equality when it comes to Federally-run programs, and immigration IS a Federally-run program.

    But then again, if you are stating that "same-sex marriage is not a fundamental right", then you are also stating that marriage, in any form, if not a fundamental right, and that the Federal government can and will pass laws regulating it, and the fright-wing will totally go along with that, correct?

    And of course, the case you cited was from BEFORE DoJ determined that DOMA was unConstitutional. Of course, you didn't want anyone to know that – that's why you didn't give any indication of when it was filed, and when the argument was made.

    By the way, what does "Ity" mean? Is this an indication that you don't even do a cursory review of your post before clicking the 'Submit Comment' button?

  • 3. echamberlain  |  October 14, 2012 at 10:51 am

    But marriage is a fundamental right, SCOTUS has said so fourteen times, at last count. And fundamental rights require strict scrutiny, so what is the federal government's reasoning that meets strict scrutiny to deny recognition of some valid marriages and not others?

  • 4. SHOES THROWER  |  October 14, 2012 at 11:04 am

    And of course, the case you cited was from BEFORE DoJ determined that DOMA was unConstitutional.

    Only with respect to equal protection. It still is defending DOMA against due process challenges. Kathleen provided the link.
    http://www.scribd.com/doc/108006814/12-cv-01137-46

    Plaintiffs’ substantive due process argument cannot prevail because DOMA works in this case to prevent Plaintiffs from obtaining a federal benefit, and there is no substantive due process right to a federal benefit.
    Defendant United States's Partial Motion to Dismiss, No. 12-cv-1137, at 8 (C.D. Cal)

  • 5. SHOES THROWER  |  October 14, 2012 at 11:09 am

    DOMA does not prevent persons from marrying those of the same sex, nor does it punish those who do, nor does it punish states that recognize such marriages. Marrying someone of the same sex does not change the set of federal protections, privileges, and benefits to which each partner is legally entitled. As the DoJ is explaining in this case, the right at issue is a right to receive federal immigration benefits on the basis of a same-sex marriage.

  • 6. echamberlain  |  October 14, 2012 at 11:19 am

    Five Article III courts disagree with your claims.

    If DOMA doesn't punish states that recognize same-sex marriage, then why are same-sex spouses prohibited from being buried in state veterans' cemeteries that receive federal funding? The clawback provisions attached to the federal funding are a punishment.

    And DOMA certainly does deny over 1,000 federal protections, privileges, and benefits to same-sex spouses, not even BLAG disputes that.

    And, if DOMA doesn't change anything as you claim, then why do legally married same-sex couples have to report combined income to the IRS (see Publication 555) in community property states?

  • 7. SHOES THROWER  |  October 14, 2012 at 11:39 am

    Five Article III courts disagree with your claims.

    No, they did not. Those courts struck down DOMA on equal protection grounds. No court has struck down DOMA on due process grounds, and every court that did decide the question of whether DOMA violates due process said no.

    If DOMA doesn't punish states that recognize same-sex marriage, then why are same-sex spouses prohibited from being buried in state veterans' cemeteries that receive federal funding? </blockqauote>
    There is no indication that the spouses would have been buried were it not for their marriage.

    And DOMA certainly does deny over 1,000 federal protections, privileges, and benefits to same-sex spouses, not even BLAG disputes that.

    It denies those benefits to siblings, children, cousins, friends, everyone except opposite-sex spouses.

    to be sure, DOMA, at a minimum, classifies on the basis of opposite-sex marital status, and the classification as applied must, at a minimum, satisfty rational basis scrutiny. But for DOMA to violate substantive due process, it must mandate adverse action because of, not merely in spite of a same-sex marriage.

  • 8. Mike Ho.  |  October 14, 2012 at 12:31 pm

    <img src="http://www.newautoquote.us/ikeas/loi.jpg"/>I didn't go through all those documents, can anybody summarize this for us? <img src="http://www.newautoquote.us/xboz/jh.jpg"/&gt;

  • 9. echamberlain  |  October 14, 2012 at 7:27 pm

    I will agree with you that Holder does the minimum he can for the LGBT community and should go.

  • 10. Mike in Baltimore  |  October 16, 2012 at 1:54 pm

    Except, no matter what you try to aver, the case was argued BEFORE DoJ determined that DOMA was unConstitutional.

    BEFORE.

  • 11. Mike in Baltimore  |  October 17, 2012 at 1:37 pm

    By the way, what does "Ity" mean? You don't seem to have even addressed the question.

  • 12. Equality On Trial »&hellip  |  April 4, 2013 at 10:02 am

    [...] The Justice Department and the plaintiffs opposed the Bipartisan Legal Advisory Group (BLAG)’s motion to dismiss the case entirely, but the Justice Department also filed a request to stay the proceedings in the [...]

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