Case: 12-3273

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Nos. 12-3273 & 12-3872

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

JOANNE PEDERSEN, et al., Plaintiffs-Appellees, v. OFFICE OF PERSONNEL MANAGEMENT, et al., Defendants-Appellants.

PLAINTIFFS-APPELLEES OPPOSITION TO MOTION TO DISMISS APPEAL NO. 12-3273 Plaintiffs-appellees oppose the Bipartisan Legal Advisory Groups (BLAGs) Motion to Dismiss Appeal No. 12-3273, the appeal filed by the Department of Justice. Plaintiffs do not object to the consolidation of that appeal with appeal no. 12-3872 and the entry of a consolidated briefing schedule. Plaintiffs oppose BLAGs motion to dismiss for two reasons. First, the Department of Justice (DOJ) is an aggrieved party because the judgment runs against the Executive Branch. Whether or not DOJ agrees this is the correct outcome, the Executive Branch still faces the judgment and any consequences that

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flow from it. Second, BLAGs motion, which raises a separation of powers question about who is the proper party to open the courthouse door on appeal, is moot. Because BLAG and the Department of Justice both have now appealed, it is beyond dispute that this matter is properly before this Court. It is unnecessary for this Court to embroil itself in the resolution of a dispute between the Legislative and Executive Branches. For the sake of judicial efficiency and expeditious resolution of plaintiffs claims of a denial of their constitutional rights, this Court need only decide the case on the merits. Accordingly, plaintiffs respectfully request that the Court deny BLAGs motion and allow the parties and the Court to focus on the merits of what the parties agree is a question of national importance: whether Section 3 of the Defense of Marriage Act, 1 U.S.C. 7, violates the equal protection guarantee of the Fifth Amendment to the U.S. Constitution as applied to legally married samesex couples. Finally, if the Court does not deny the motion immediately, plaintiffs request that it be deferred to the merits panel, which was how the same motion by BLAG was addressed in the pending appeal in Windsor v. United States of America, 2nd Circuit Appeal Nos. 12-2335 and 12-2435.

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Respectfully submitted, Joanne Pedersen & Ann Meitzen Gerald V. Passaro, II Raquel Ardin & Lynda Deforge Janet Geller & Joanne Marquis Suzanne & Geraldine Artis Bradley Kleinerman & James Gehre And Damon Savoy & John Weiss By their attorneys, GAY & LESBIAN ADVOCATES & DEFENDERS /s/ Mary L. Bonauto Gary D. Buseck, #ct28461 gbuseck@glad.org Mary L. Bonauto, #ct28455 mbonauto@glad.org Vickie L. Henry, #ct28628 vhenry@glad.org Janson Wu, #ct28462 jwu@glad.org 30 Winter Street, Suite 800 Boston, MA 02108 (617) 426-1350 HORTON, SHIELDS & KNOX /s/ Kenneth J. Bartschi_____________ Kenneth J. Bartschi, #ct17225 kbartschi@hortonshieldsknox.com Karen Dowd, #ct09857 kdowd@hortonshieldsknox.com 90 Gillett St. Hartford, CT 06105 (860) 522-8338

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JENNER & BLOCK /s/ Paul M. Smith Paul M. Smith (of counsel) psmith@jenner.com Luke C. Platzer (of counsel) lplatzer@jenner.com Matthew J. Dunne (of counsel) mdunne@jenner.com Melissa Cox mcox@jenner.com 1099 New York Avenue, NW Suite 900 Washington, DC 20001-4412 (202) 639-6060 AS TO PLAINTIFFS SUZANNE & GERALDINE ARTIS BRADLEY KLEINERMAN & JAMES GEHRE SULLIVAN & WORCESTER LLP /s/ David J. Nagle J. Nagle, #ct28508 dnagle@sandw.com Richard L. Jones, #ct28506 rjones@sandw.com One Post Office Square Boston, MA 02109 (617) 338-2800

Dated:

October 15, 2012

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CERTIFICATE OF SERVICE I hereby certify that on October 15, 2012, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Second Circuit by using the appellate CM/ECF system. I further certify that all participants in the case are represented by registered CM/ECF users and will be served by the appellate CM/ECF system. /s/ Mary L. Bonauto Mary L. Bonauto Counsel for Plaintiffs-Appellees GAY & LESBIAN ADVOCATES & DEFENDERS 30 Winter Street, Suite 800 Boston, MA 02108 (617) 426-1350 mbonauto@glad.org