Sie sind auf Seite 1von 17

Case 1:09-cv-11156-JLT Document 50

Filed 05/19/10 Page 1 of 17

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS COMMONWEALTH OF MASSACHUSETTS, Plaintiff, v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; KATHLEEN SEBELIUS, in her official capacity as the Secretary of the United States Department of Health and Human Services; UNITED STATES DEPARTMENT OF VETERANS AFFAIRS; ERIC K. SHINSEKI, in his official capacity as the Secretary of the United States Department of Veterans Affairs; and the UNITED STATES OF AMERICA, Defendants.

Civil Action No. 1:09-cv-11156-JLT


COMMONWEALTH OF MASSACHUSETTS ATTORNEY GENERAL MARTHA COAKLEY Maura T. Healey, BBO No. 640856 Jonathan B. Miller, BBO No. 663012 Christopher K. Barry-Smith, BBO No. 565698 Jessica Lindemann, BBO No. 675722 Assistant Attorneys General One Ashburton Place Boston, MA 02108 Tel: (617) 727-2200 Fax: 617-727-5762

Case 1:09-cv-11156-JLT Document 50

Filed 05/19/10 Page 2 of 17

The federal government has not disputed the factual matters proven in the Commonwealths motion for summary judgment. Accordingly, the following facts, among others, are now established: 1. DOMA is unprecedented. Prior to DOMAs enactment, eligibility for federal rights and protections affected by marriage was determined by State marital status. In enacting DOMA, for the first time in the history of this Nation, Congress created a blanket federal definition of marriage that cast aside State definitions in order to express federal displeasure with States decisions on issues of domestic relations. Commonwealth Rule 56.1 Stmt. 15-17. 2. State laws regulating marital eligibility and status have varied significantly throughout our Nations history. Despite the fact that these variations implicated deep-seated controversies about, inter alia, race, age, and eugenics, Congress never took a position discriminating among the States; rather, it incorporated State definitions of marriage without exception. Commonwealth Rule 56.1 Stmt. 10, 12-15, 17-18. 3. The federal agencies responsible for implementing the State Cemetery Grants Program and the federal Medicaid program have made plain their prerogative to recapture funds disbursed to the Commonwealth as a result of the Commonwealths decisions to disregard DOMA and to recognize marriages between same-sex couples that are valid under Massachusetts law. Commonwealth Rule 56.1 Stmt. 27-29, 43-44, 46. 4. Gays and lesbians have experienced a history of discrimination. Sexual orientation does not affect the ability to contribute to society. Gays and lesbians are a politically vulnerable minority group that faces systematic disadvantages in the political process. And sexual orientation is a defining characteristic that is highly resistant to change. See Commonwealth Rule 56.1 Stmt. 61-82. Based on these undisputed facts, DOMAs violation of the Tenth Amendment and the Spending Clause is clear. Regulation of marriage is and always has been the exclusive province of the States, and DOMAs thoroughgoing deployment, for the very first time, of a federal definition of marriage runs afoul of the Tenth Amendment. As to the Spending Clause, DOMA puts to the Commonwealth the unconstitutional choice between violating the U.S. Constitutions guarantee of equal protection or forgoing federal funds that are made available to other States that choose

Case 1:09-cv-11156-JLT Document 50

Filed 05/19/10 Page 3 of 17

not to recognize marriages between same-sex couples. Finally, the Commonwealth has standing to bring these two constitutional challenges, which go to the very heart of State/federal relations. ARGUMENT I. DOMA Violates the Tenth Amendment As Defendants recognize, DOMA is the first federal statute in American history to displace the States well-established authority to define marital status not only for State law, but also for federal laws that incorporate marriage. Defs. Resp. [Dkt. 47] 5 (acknowledging the fact that Congress had not chosen to codify a definition of marriage for purposes of federal law prior to 1996). They do not dispute Congresss settled, uninterrupted history of respecting state definitions of marriage, Commonwealth Br. [Dkt. 28] 18; Defs. Resp. 4, and offer no reply to the Commonwealths core Tenth Amendment challenge: that DOMA supplants Massachusettss definition of marital status by creating two marital statuses in the Commonwealthmarried for different-sex spouses and married but federally single for samesex spouses.1 Instead, Defendants accuse the Commonwealth of claim[ing] for the States, not Congress, the authority to define provisions of federal law. Defs. Resp. 3. Of course, the

Defendants statutory language arguments are inapposite. See Defs. Resp. 3. None of the Commonwealths constitutional challenges turns on any contested reading of DOMA or any other federal statutes text. Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947), is off-point. As Defendants acknowledge, Defs. Resp. 5, Rice is a preemption case, in which the federal governments authority to regulate the grain warehouses at issue was clear . . . since warehouses are engaged in the storage of grain for interstate or foreign commerce and are therefore in the federal domain. Id. at 229. Here, by contrast, the Commonwealth asserts that Congress lacks the authority to override the Commonwealths definition of marriage in the first place. In addition, if federalism questions were decided based only on whether Congress expressly sought to override state authority, the Tenth Amendment would be devoid of meaning.

Case 1:09-cv-11156-JLT Document 50

Filed 05/19/10 Page 4 of 17

Commonwealth makes no such sweeping contention. Rather, this lawsuit is directed to DOMAs general federal definition of marriage that is unprecedented in our history. Prior to DOMA, the States defined marriage not only for purposes of State law, but also for purposes of federal lawindeed, they continue to do so in all respects except for same-sex couples. The Supreme Court has recognized the States exclusive authority over this area time and again. See, e.g., Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12 (2004); Haddock v. Haddock, 201 U.S. 562, 575 (1906), overruled on other grounds, Williams v. North Carolina, 317 U.S. 287 (1942); Commonwealth Br. 16 & n.3. Defendants also claim that DOMAs sweeping definition, which applies to all federal laws, is somehow justified under the Spending Clause. Defs. Resp. 4. However, DOMAs definition is by no means limited to spending programsit extends to non-economic protections such as testimonial privilege, Trammel v. United States, 445 U.S. 40 (1980), as well as laws that have nothing to do with the Spending Clause, such as bankruptcy protections, 11 U.S.C. 302, 507, copyright protections, 17 U.S.C. 203(a)(2)(A), 304(a)(1)(C)(2), protections under the Employee Retirement Income Security Act, e.g. 26 U.S.C. 401(a), and leave to care for a spouse under the Family and Medical Leave Act, 29 U.S.C. 2612(a)(1)(C). This broad reach, covering a wide array of laws that were not enacted pursuant to the spending power, illustrates that DOMA is not a limited Spending Clause enactment tied to certain programs but rather a bald effort to establish a national family law in accordance with congressional policy preferences. 2

See United States v. Lewko, 269 F.3d 64, 69 (1st Cir. 2001) (finding that Child Support Recovery Act was proper under the Commerce Clause because it did not have the purpose or effect of establishing a national, uniform family law).

Case 1:09-cv-11156-JLT Document 50

Filed 05/19/10 Page 5 of 17

Defendants rely on immigration cases to argue that Congress may define marriage for purposes of federal law. But neither of the cases cited by Defendants involved federal disapproval of a state-sanctioned marriage. Rather, both consider whether individuals who were married under State law remained eligible for adjustment of status after their citizen spouses passed away while their adjustment applications were pending. Lockhart v. Napolitano, 573 F.3d 251 (6th Cir. 2009); Taing v. Napolitano, 567 F.3d 19 (1st Cir. 2009). The courts of appeals determined that the common meaning of the term spouse included a surviving spouse and that it would be unjust to deny adjustment of status based on delays in the federal approval process. Lockhart, 573 F.3d at 258-61; Taing, 573 F.3d at 25-27. There was no suggestion that interpreting the word spouse to include surviving spouses would somehow harm the States ability to define and regulate marital status.3 Defendants invocation of immigration law only underscores the unconstitutionality of a generalized federal definition of marriage like DOMA. There may be interests in the immigration context, most importantly fraud prevention, that warrant an inquiry beyond simply whether a couple is married under State law. See 8 U.S.C. 1101(a)(35). But even in immigration, where Congresss power is at its strongest, the starting point has to be whether

Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982), the other immigration case cited by Defendants, occurred before any State recognized marriages between couples of the same sex. See id. at 1039 (The Colorado Attorney General in an informal, unpublished opinion addressed to a member of the Colorado legislature three days after the alleged marriage in question occurred, stated that purported marriages between persons of the same sex are of no legal effect in Colorado.). The case nowhere mentions the Tenth Amendment, and it involved an area of plenary congressional power. Further, Adams was probably wrongly decided. It incorrectly read precedent in adding a separate inquiry about whether Congress would recognize the State marriage under the INA, even if lawful and non-fraudulent. See Kerry Abrams, Immigration Law and the Regulation of Marriage, 91 Minn. L. Rev. 1625, 1670-78 (2007).

Case 1:09-cv-11156-JLT Document 50

Filed 05/19/10 Page 6 of 17

there is a valid State marriage, as the federal government does not issue marriage licenses. Similarly, in the context of Social Security, couples have to have been married for at least one year to access benefits as a spouse. Once again, eligibility starts with the valid State marriage and then imposes an additional requirementdurationto prevent fraud. These measured approaches to particular, identified federal interests do not trench on State prerogatives. These examples also contrast markedly with Congress sledgehammer-like approach in enacting DOMA, where the express purpose of the law is precisely to exclude marriages valid under State law due to congressional dislike of State family policy. II. DOMA Violates the Spending Clause. A. DOMA Unconstitutionally Conditions Federal Funding on Violation of the Equal Protection Clause. 1. DOMA Is Not Rationally Related to any Legitimate Federal Interest.

Despite Defendants express disavowal of the purported interests actually set forth in DOMAs legislative history, see Defs. Resp. 16, and their repeated insistence that the Administration disagrees with DOMA as a policy matter, see Defs. Opening Br. [Dkt. No. 17] 1; Defs. Resp. 1, Defendants continue to maintain that DOMA satisfies rational basis review. See, e.g., Defs. Resp. 2. More specifically, Defendants contend that by artificially freezing the law as it stood in 1996before any State had extended marriage equality to same-sex couplesCongress conceivably could have sought to maintain the status quo and preserve national consistency in the distribution of federal marriage-based benefits. Id. at 13. Defendants argument is no more supported in their response than it was in their opening brief. In the first place, DOMA is a radical departure from the historical federal deference to State domestic relations law. Defendants concede as much when they assert (correctly) that

Case 1:09-cv-11156-JLT Document 50

Filed 05/19/10 Page 7 of 17

[b]efore the enactment of DOMA, the marital status of individuals under federal lawand thus the operation and effect of those statutesgenerally depended on marital status under state law. Defs. Resp. 12. DOMA broke with that longstanding tradition of respecting and incorporating State definitions of marriage, Commonwealth Rule 56.1 Stmt. 17, by substituting a single federal definition with respect to one criterion onlythat spouses be of the opposite sex. DOMA transformed the federal governments position from one of neutrality (acceptance of State determinations of marriage) to one that forces the Commonwealth to violate the equal protection rights of its citizens or risk the loss of federal funding. Such a fundamental change in course alters and does not preserve the status quo. Even if Congresss actions were to be interpreted as an attempt to maintain the status quo, that would not save DOMA. A law that preserves a discriminatory status quo is still discriminatory. Additionally, status quo is not an interest unto itself. The cases cited by Defendants, Defs. Resp. 13-14, all involve the temporary preservation of the status quo in order to maintain options or not prejudice rights during a planning process, administrative proceedings, or pending rulemaking, none of which are apposite here. See, e.g., Natl Parks Conservation Assn v. Norton, 324 F.3d 1229, 1245 (11th Cir. 2003) (upholding status quo pending ongoing planning process); Teigen v. Renfrow, 511 F.3d 1072, 1084 (10th Cir. 2007) (holding that the Constitution allowed State agencies to freeze promotions for employees while their appeals in prior personnel actions remained pending); Waste Mgmt., Inc. v. EPA, 669 F. Supp. 536, 541-43 (D.D.C. 1987) (finding that EPAs maintenance of the status quo while rulemaking was pending did not violate APA). Defendants have offered no similar reason to

Case 1:09-cv-11156-JLT Document 50

Filed 05/19/10 Page 8 of 17

support DOMA, rather, they argue only that it preserved the status quo for the sake of preserving the status quo. Defendants argument that DOMA legitimately perpetuates consistency and uniformity in the distribution of federal benefits, thereby avoiding unpredictability and confusion, is similarly unpersuasive. States always have defined marriage eligibility; therefore, the only consistent definition of marriage at the federal level is to rely upon and incorporate the States assessments of whether a couple is married or not. See In re Levenson, 587 F.3d 925, 933 (9th Cir. 2009) (order of Reinhardt, J.). Defendants have respected diverse State determinations of marriage with respect to numerous other criteria (e.g., age, kinship, capacity), and make no serious attempt to argue that respecting the valid marriages of the Commonwealths same-sex couples would be administratively unworkable, much less offer any evidence of such a burden. Indeed, as the Commonwealth has shown, it is more burdensome for Massachusetts government agencies to implement DOMA, as it requires determinations not just of marital status, but also of the gender of the spouse. Commonwealth Rule 56.1 Stmt. 54-55. Defendants offer no evidence suggesting that the burden on federal agencies would be any different. Further proof that this proffered reason is not genuine is Congresss rejection of a proposed amendment to study the effects of DOMA on the programs at issue. See 142 Cong. Rec. H7503-05 (daily ed. July 12, 1996). Defendants devote little attention to their original argument that DOMA advances an interest in incrementalism, and understandably so: as Defendants counsel recently conceded before the Court, incrementalism is not an end in itself. Hrg Tr. 49-50, Gill v. Office of Pers. Mgmt., No. 09cv10309 (D. Mass. May 6, 2010). Moreover, to the extent that DOMA reflects an

Case 1:09-cv-11156-JLT Document 50

Filed 05/19/10 Page 9 of 17

incremental path toward anything, it is toward a nationwide ban on marriage between same-sex couples, which Defendants (correctly) do not advance as a legitimate federal purpose. Finally, Defendants disavowal of the purported interests expressed in the legislative history does not remove those interests from this case. Those interests confirm that DOMA is an impermissible animus-based piece of legislation that targets a politically marginalized and unpopular group. See Commonwealth Br. 29-31. And although Defendants seek to distance themselves from the statements of individual members of Congress, Defs. Resp. 16, the Supreme Court has considered similar statements in striking down a law applying rational basis review. See U.S. Dept of Agric. v. Moreno, 413 U.S. 528, 534 (1973). 2. Discrimination Based on Sexual Orientation Merits Heightened Scrutiny.

The Commonwealth presented detailed evidence demonstrating that gays and lesbians meet the traditional test to be considered a suspect class. Defendants dispute none of that evidence. Instead, Defendants argue that the First Circuit in an entirely different casewith a different recordsomehow foreclosed the Commonwealth from offering its evidence in support of heightened scrutiny. Defendants argument fails. Defendants argument depends on taking one broadly phrased statement from Cook v. Gates, 528 F.3d 42 (1st Cir. 2008)homosexuals are not a suspect classand unmooring it from the cases holding, which is limited. This runs counter to the important principle that [s]tatements of law should be taken in context. Perez v. Volvo Car Corp., 247 F.3d 303, 314 (1st Cir. 2001). Taken in context, the statement in Cook simply reflects the fact that the Supreme Court has not yet considered whether homosexuals are a suspect or quasi-suspect class; the

Case 1:09-cv-11156-JLT Document 50

Filed 05/19/10 Page 10 of 17

statement is not a holding that forecloses that inquiry altogether on a fulsome record, as is now before the Court.4 The Cook court was askedas Defendants concede, Defs. Resp. 9whether Romer v. Evans, 517 U.S. 620 (1996), or Lawrence v. Texas, 539 U.S. 558 (2003) mandate[d] something more than rational basis scrutiny. Cook, 528 F.3d at 61. With regard to Lawrence, the Cook court noted that since the Supreme Court had explicitly declined to base its ruling on equal protection principles, that opinion did not require heightened equal protection scrutiny. Id. And as to Romer, the court observed that nothing in that opinion suggested that the Court recognized a new suspect class; heightened scrutiny was therefore not mandated. Id. The First Circuits reading of the Romer opinion is unsurprising, given that the question whether homosexuals are a suspect or quasi-suspect class was not even before the Supreme Court in Romer. See Romer, 517 U.S. at 642 n.1 (Scalia, J., dissenting) (noting that question whether homosexuals constitute a suspect or quasi-suspect class was not raised on appeal). Since the Romer Court had not been presented with evidence or even argument on the factors traditionally used to identify suspect classes, it had no occasion to decide whether classifications

The cases cited in Defendants footnote 2, Defs. Resp. 10, provide them with no support. Many of the plaintiffs did not even argue for heightened scrutiny. See, e.g., Beauchamp v. Murphy, 37 F.3d 700, 706 (1st Cir. 1994) (referring to Beauchamps claim that Massachusetts applies its no-credit rule based on irrational classifications (emphasis added)); Restucci v. Clarke, 669 F. Supp. 2d 150, 158 (D. Mass. 2009) (no suggestion that pro se plaintiff sought heightened scrutiny). Nor do the opinions suggest that the plaintiffs presented a record, let alone an undisputed one, on the factors analyzed for heightened scrutiny. E.g., Rodriguez v. Secy of Health, Educ. & Welfare, 644 F.2d 918, 921 n.2 (1st Cir. 1981) (noting that plaintiff relied on Supreme Court precedent involving illegitimate children; no suggestion that proof was offered justifying treating adopted children as a suspect class).

Case 1:09-cv-11156-JLT Document 50

Filed 05/19/10 Page 11 of 17

based on sexual orientation warrant heightened scrutiny.5 Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157, 170 (2004) (internal citation and quotation marks omitted) (Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.); see also United States v. DiPina, 178 F.3d 68, 73 (1st Cir. 1999) (Where, in a prior decision, we have not considered an issue directly and assessed the arguments of parties with an interest in its resolution, that decision does not bind us in a subsequent case where the issue is adequately presented and squarely before us[.]). Here, by contrast, the Commonwealth has squarely presented uncontroverted evidence to establish that classifications based on sexual orientation should receive heightened scrutiny. See Commonwealth Rule 56.1 Stmt. 61-82; see also Commonwealth Br. at 33-36 (addressing the heightened scrutiny factors). Defendants do not dispute that the Commonwealth has properly identified the factors that historically govern the identification of a suspect classification, Defs. Resp. 10, or that those factors are satisfied here. Rather, Defendants sole argument is that this Court is foreclos[ed] from finding that classifications based on sexual orientation are

Like Romer, none of the sister circuit cases cited in Cook had been presented with argument, let alone record evidence, to support the factors that underlie the application of heightened equal protection scrutiny. See Scarbrough v. Morgan County Bd. of Ed., 470 F.3d 250, 261 (6th Cir. 2006); Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 866 (8th Cir. 2006); Johnson v. Johnson, 385 F.3d 503, 530 (5th Cir. 2004); Lofton v. Secy of Dept of Children & Family Servs., 358 F.3d 804, 818 (11th Cir. 2004); Veney v. Wyche, 293 F.3d 726, 731-32 (4th Cir. 2002); Holmes v. Cal. Army Natl Guard, 124 F.3d 1126, 1132 (9th Cir. 1997).


Case 1:09-cv-11156-JLT Document 50

Filed 05/19/10 Page 12 of 17

suspect.6 However, since neither the Supreme Court nor the First Circuit has ever been asked to perform the type of fact-intensive analysis that the Commonwealth urges here, such analysis cannot have been foreclosed. Accordingly, this Court can and should resolve the matter in accordance with the undisputed facts of record. B. DOMA Violates the Spending Clause Because the Conditions It Imposes Are Not Germane.

Defendants offer no reply to the cases cited by the Commonwealth, Commonwealth Br. 38, demonstrating that federal program requirements are properly analyzed as conditions under the Spending Clause. Nor do they attempt to justify their reliance on the sole case they cited in their Motion to Dismiss, which the Commonwealth distinguishes at Commonwealth Br. 38 n.15. However, they contend that the conditions imposed by DOMA are germane to the purposes of the federal Medicaid statute and the State Cemetery Grants Program because, well after those programs were implemented, Congress revised their purposes to exclude same-sex spouses as beneficiaries. Defs. Resp. 7-8. The undisputed facts show that the purpose of Medicaid is to provide medical coverage for low-income individuals, Commonwealth Rule 56.1 Stmt. 36, and the purpose of the State Cemetery Grants Program is to provide convenient burial sites for veterans and their spouses, id. 19. It defies reason to believe, as Defendants now argue, Defs.

Defendants assertion that the Cook court apparently saw no need to analyze the factors that historically govern the identification of a suspect classification, Defs. Resp. 10, is simply wrong. The Cook court did not analyze the heightened scrutiny factors because it was not asked to and could not do so based on the record before it. See Commonwealth Br. at 32; see also Brief of Plaintiffs-Appellants at 31-35, Cook, 528 F.3d 42 (Nos. 06-2313 & 06-2381).


Case 1:09-cv-11156-JLT Document 50

Filed 05/19/10 Page 13 of 17

Resp. 7-8, that Congress intended to repurpose those very specific statutes in passing DOMA.7 Indeed, as the Commonwealth shows in its opening brief, Commonwealth Br. 8, there was no consideration of DOMAs effect on individual programs at the time of its passage, and in fact the House rejected a proposed amendment that would have required an analysis by the General Accounting Office of DOMAs effects on federal law. The belated imposition of a cross-cutting definitional provision, whose stated purpose defend[ing] the institution of traditional heterosexual marriage, encouraging responsible procreation and child-rearing, preserving scarce government resources, and reflecting moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality, see Commonwealth Br. 7has nothing to do with the purposes of Medicaid or the State Cemetery Grants Program, fails the Spending Clauses germaneness requirement. This policy at best reflects an interest in uniform, national family law, which is not a legitimate pursuit of the federal government, and at worst an interest in blanket discrimination against gay couples who are married. This is a far cry from the unobjectionable, legitimate cross-cutting federal interests in, for example, anti-discrimination, see Lau v. Nichols, 414 U.S. 563 (1974), or good public service, see Sabri v. United States, 541 U.S. 600 (2004).

The statutes and rule cited by Defendants, Defs. Resp. 7, merely use the word spousea term defined by DOMA. The purpose of a program is not the sum of its defined terms.


Case 1:09-cv-11156-JLT Document 50

Filed 05/19/10 Page 14 of 17


The Commonwealth Has Standing To Sue Each Defendant. What is notable about Defendants renewed standing arguments is what they do not

and cannotdispute. First, Defendants concede that the Commonwealth has suffered injury-infact based on the expenses it has incurred as a result of the denial of FFP for same-sex spouses to whom MassHealth gives benefits, even though they would be denied benefits if treated as single under DOMA. Accordingly, the Commonwealths standing to sue HHS is undisputed. Second, Defendants do not dispute that the Commonwealths increased Medicare tax burden for state employees whose same-sex spouses receive health benefits confers standing to challenge DOMA.8 Third, Defendants do not dispute the Commonwealths standing based on DOMAs encroachment on its sovereign authority to define and regulate marriage. See Commonwealth Br. 43. Instead, Defendants focus their Response on the Commonwealths claims against the VA, labeling them speculative and contending that the Commonwealth should be required to wait until the VA actually seeks to recapture the millions of dollars to which it already believes it is entitled. This position is both untenable and unsupported by the case law. In the first place, Defendants position that Massachusetts must wait until a veterans same-sex spouse is about to be buried in a veterans cemetery before bringing suit, Defs. Opening Br. 33 is simply unworkable given the practical necessity of burial in the days following death as weighed against the months (or years) needed to resolve the constitutional issues in a case like this one.

Although Defendants argue that claims premised on the Commonwealths status as an employer should be dismissed under Rule 12(b)(6), see Defs. Opening Br. 13-15, they do not dispute that the Commonwealth has been injured and continues to be injured in this way by DOMA.


Case 1:09-cv-11156-JLT Document 50

Filed 05/19/10 Page 15 of 17

Moreover, the VA has taken the position that the Commonwealths mere authorization of the burial of a same-sex spouse would entitle it to recoup the grant money on which the Commonwealth depends, a fact Defendants do not dispute. Massachusetts need not wait for recapture to occur before bringing its constitutional claims. As the Supreme Court has explained, [w]here threatened action by government is concerned, a plaintiff need not expose himself to liability before bringing suit to challenge the basis for the threat for example, the constitutionality of a law threatened to be enforced. MedImmune, Inc. v. Genentech, 549 U.S. 111, 128-29 (2007); see also Commonwealth Br. 40 & 41 n.17 (citing cases). Nor must it endure the continued disregard of its sovereign prerogative to define marital status and to have that status recognized in all cases by the federal government, as has been the consistent understanding in our federal structure for over 200 years. This Court has jurisdiction, and it should decide this case. CONCLUSION For the foregoing reasons, the Commonwealths motion for summary judgment should be granted.


Case 1:09-cv-11156-JLT Document 50

Filed 05/19/10 Page 16 of 17

May 19, 2010 Boston, Massachusetts

Respectfully submitted, COMMONWEALTH OF MASSACHUSETTS ATTORNEY GENERAL MARTHA COAKLEY /s/ Maura T. Healey__________________ Maura T. Healey, BBO No. 640856 Jonathan B. Miller, BBO No. 663012 Christopher K. Barry-Smith, BBO No. 565698 Jessica Lindemann, BBO No. 675722 Assistant Attorneys General One Ashburton Place Boston, MA 02108 Tel: (617) 727-2200 Fax: 617-727-5762


Case 1:09-cv-11156-JLT Document 50

Filed 05/19/10 Page 17 of 17

CERTIFICATE OF SERVICE I, Jonathan B. Miller, hereby certify that this document filed through the ECF system shall be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF):

/s/ Jonathan B. Miller______ Jonathan B. Miller Assistant Attorney General