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Claudia Center, State Bar No. 158255
Shelley A. Gregory, State Bar No. 215442
Elizabeth Kristen, State Bar No. 218227
Lori Rifkin, State Bar No. 244081
LEGAL AID SOCIETY-
EMPLOYMENT LAW CENTER
600 Harrison Street, Suite 120
San Francisco, CA 94107
Telephone: (415) 864-8848
Facsimile: (415) 864-8199
Email: ccenter@las-elc.org
sgregory@las-elc.org
ekristen@las-elc.org
lrifkin@las-elc.org
Daniel S. Mason, State Bar No. 54065
Patrick Clayton, State Bar No. 240191
Zelle Hofmann Voelbel & Mason LLP
44 Montgomery St Ste 3400
San Francisco, CA 94104
Telephone: (415) 693-0700
Facsimile: (415) 693-0770
Email: pclayton@zelle.com
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA (OAKLAND DIVISION)
MICHAEL DRAGOVICH, MICHAEL
GAITLEY, ELIZABETH LITTERAL,
PATRICIA FITZSIMMONS, CAROLYN
LIGHT, and CHERYL LIGHT, on behalf of
themselves and all others similarly situated,
Plaintiffs,
v.
UNITED STATES DEPARTMENT OF THE
TREASURY, TIMOTHY GEITHNER, in his
official capacity as Secretary of the Treasury,
United States Department of the Treasury,
INTERNAL REVENUE SERVICE, DOUGLAS
SHULMAN, in his official capacity as
Commissioner of the Internal Revenue Service,
BOARD OF ADMINISTRATION OF
CALIFORNIA PUBLIC EMPLOYEES’
RETIREMENT SYSTEM, and ANNE
STAUSBOLL, in her official capacity as Chief
Executive Officer, CalPERS,
Defendants.
Case No. CV 4:10-01564-CW
PLAINTIFFS’ OPPOSITION TO THE
FEDERAL DEFENDANTS’ MOTION TO
DISMISS
DATE: September 9, 2010
TIME: 2:00 p.m.
PLACE: Courtroom of the Honorable
Claudia Wilkin, U.S. District Court,
Northern District of California, 1301 Clay
Street, Courtroom 2
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Plaintiffs’ Opposition to Defendant’s Motion to Dismiss
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TABLE OF CONTENTS
TABLE OF AUTHORITIES ...................................................................................................... iii
INTRODUCTION ......................................................................................................................... 1
BACKGROUND AND STATEMENT OF FACTS .................................................................... 1
The Importance of Long-Term Care to Families ................................................................. 2
The Enactment of 26 U.S.C. § 7702b(f) .............................................................................. 2
The Reenactment of 26 U.S.C. § 7702B(f) .......................................................................... 6
The CalPERS Long-Term Care Insurance Program ............................................................ 6
ARGUMENT .................................................................................................................................. 7
I. THE COMPLAINT ESTABLISHES PLAINTIFFS’ STANDING ........................ 7
A. Plaintiffs Have Alleged an “Injury In Fact” Based on the Categorical
Exclusion Same-Sex Spouses and Domestic Partners ............................................. 8
1. Plaintiffs Have Established Their Intent to Apply for Enrollment
in the Long-Term Care Plan When They are Deemed Eligible ......................... 9
2. Because the Long-Term Care Plan Policy Categorically Excludes
Same-Sex Spouses and Domestic Partners From Enrollment,
Plaintiffs Need Not Apply ............................................................................... 10
3. Plaintiffs Need Not Demonstrate the Unavailability of Economic
Alternatives ...................................................................................................... 12
B. Plaintiffs Satisfy the Remaining Elements of the Standing Inquiry ...................... 13
II. PLAINTIFFS HAVE STATED A CLAIM AGAINST THE FEDERAL
DEFENDANTS FOR VIOLATION OF THE FIFTH AMENDMENT’S
GUARANTEE OF EQUAL PROTECTION .......................................................... 15
A. Standard of Review For Purposes of This Motion ................................................ 15
B. The Challenged Law Bears No Rational Relationship to Any
Legitimate Interest ................................................................................................. 16
Congress’s Stated Interests in Procreation, Child-Rearing,
Traditional Marriage, and Traditional Morality ............................................... 16
Congress’s State Interest in Preserving Government Resources ..................... 18
The Federal Defendants’ Post-Hoc Interest in Preserving the Status
Quo, and Allowing the States to Decide .......................................................... 19
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C. The Challenged Law Impermissibly Excludes Same-Sex Spouses and
Domestic Partners Based Upon Animus Against Lesbians and Gay Men
and Their Relationships ......................................................................................... 22
III. PLAINTIFFS HAVE STATED A CLAIM AGAINST THE FEDERAL
DEFENDANTS FOR SELECTIVELY BURDENING PLAITNIFFS’
EXERCISE OF A FUNDAMENTAL RIGHT ON THE BASIS OF
SEXUAL ORIENTATION IN VIOLATION OF THE DUE PROCESS
CLAUSE ..................................................................................................................... 22
CONCLUSION ............................................................................................................................ 25
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Plaintiffs’ Opposition to Defendant’s Motion to Dismiss
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TABLE OF AUTHORITIES
FEDERAL CASES
Aetna Cas. & Sur. Co. v. British Petroleum, No. Civ. A. Nos. 90-4595, 90-5003,
1991 WL 148140 (E.D. La., July 30, 1991) ......................................................................... 4
Allen v. Wright, 468 U.S. 737 (1984) ........................................................................................ 8, 13
Arlington County v. White, 259 Va. 708 (2000) .............................................................................. 4
Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977) ............................................. 9
Assoc. of Amer. Medical Colleges v. United States, 217 F. 3d 770 (9th Cir. 2000) ...................... 10
Belodoff v. Netlist, Inc., No. SA CV 07-00677 DOC (MLGx), 2008 WL 2356699
(C.D. Cal. May 30, 2008) .................................................................................................. 12
Black Faculty Ass’n of Mesa Coll. v. San Diego Cmty. Coll. Dis.t, 664 F.2d 1153
(9th Cir. 1981).................................................................................................................... 11
Bolling v. Sharpe, 347 U.S. 497 (1954) ......................................................................................... 15
Bouman v. Block, 940 F.2d 1211 (9th Cir. 1991) .......................................................................... 11
Breiner v. Nev. Dep't of Corr., --- F.3d ----, 2010 WL 2681730 at *2
(9th Cir. July 8, 2010) ........................................................................................................ 11
Carey v. Population Services Int’l, 431 U.S. 678 (1977) .............................................................. 24
CC Distrib., Inc. v. United States, 883 F.2d 146 (D.C. Cir. 1989) .................................................. 9
City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) .................................. 15, 16, 19, 22
Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632 (1974) .............................................................. 23
Commonwealth of Massachusetts v. United States Dep’t of Health and Human Services,
698 F. Supp. 2d 234 (D. Mass. 2010) ................................................................................ 21
Department of Agriculture v. Moreno, 413 U.S. 528 (1973) ......................................................... 22
Ellison v. Connor, 153 F.3d 247 (5th Cir. 1998) ........................................................................... 10
Gill v. Office of Personnel Management, 699 F. Supp. 2d 374 (D. Mass. 2010) ...................passim
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Gordon v. State Bar, No. C08-3341 SI, 2008 U.S. Dist. LEXIS 94672
(N.D. Cal. Nov. 20, 2008) .................................................................................................. 10
Gratz v. Bollinger, 539 U.S. 244 (2003) .......................................................................................... 9
Griswold v. Connecticut, 381 U.S. 479 (1965) .............................................................................. 24
Hartfield v. C.I.R., T.C. Summ. Op. 2006-77, 2006 WL 1280961
(U.S. Tax Ct., 2006) ............................................................................................................. 4
High Tech Gays v. Defense Industrial Security Clearance Office, 895 F.2d 563
(9th Cir. 1990).................................................................................................................... 15
In re Golinski, 587 F.3d 956 (9th Cir. 2009) ............................................................................. 9, 13
In re Levenson, 560 F.3d 1145 (9th Cir. Judicial Council, 2009) ..........................................passim
In re Wet Seal, Inc. Secs. Litig., 518 F. Supp. 2d 1148 (C.D. Cal. 2007) ...................................... 12
Lawrence v. Texas, 539 U.S. 558 (2003) ................................................................................passim
Lorrillard v. Pons, 434 U.S. 575 (1978) .......................................................................................... 6
Loving v. Virginia, 388 U.S. 1 (1967) ........................................................................................... 24
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ...................................................................... 8
Madsen v. Boise State Univ., 976 F.2d 1219 (9th Cir. 1992) ........................................................ 11
Meyer v. Nebraska, 262 U.S. 390 (1923) ...................................................................................... 23
Moore v. East Cleveland, 431 U.S. 494 (1977) ............................................................................. 23
Ne. Fla. Chapter of Assoc’d Gen. Contractors of Am. v. Jacksonville,
508 U.S. 656 (1993) ............................................................................................................. 9
Palmore v. Sidoti, 466 U.S. 429 (1984) ......................................................................................... 22
Perry v. Schwarzenegger, 591 F.3d 1147 (2010) ...................................................................passim
Pierce v. Soc’y of Sisters, 268 U.S. 510 (1925) ............................................................................. 24
Plessy v. Ferguson, 163 U.S. 537 (1896) ...................................................................................... 15
Plyler v. Doe, 457 U.S. 202 (1982) ............................................................................................... 19
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Prince v. Massachusetts, 321 U.S. 158 (1944) .............................................................................. 23
Pruitt v. Cheney, 963 F.2d 1160 (9th Cir.1992) ............................................................................ 22
Rasco v. C.I.R., T.C. Memo. 1999-169, 1999 WL 311796
(U.S. Tax Ct., 1999) ............................................................................................................. 4
Reed v. Reed, 404 U.S. 71 (1971) .................................................................................................. 19
Regan v. Taxation with Representation of Wash., 461 U.S. 540 (1983) ....................................... 24
Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978) ............................................................ 9
Romer v. Evans, 517 U.S. 620 (1996) ....................................................................................passim
Savage v. Glendale Union High School Dist., 343 F.3d 1036 (9th Cir. 2003) .............................. 10
Southwest Marine, Inc. v. U.S., 535 F.3d 1012 (9th Cir. 2008) ....................................................... 6
St. Clair v. City of Chico, 880 F.2d 199 (9th Cir. 1989) ................................................................ 10
Stanton v. Stanton, 421 U.S. 7 (1975) ........................................................................................... 18
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998) ..................................................... 8, 14
Taniguchi v. Schultz, 303 F.3d 950 (9th Cir. 2002) ....................................................................... 11
Tucson Woman’s Clinic v. Eden, 371 F.3d 1173 (9th Cir. 2004) .................................................. 22
United States v. Baugh, 187 F.3d 1037 (9th Cir. 1999) ................................................................. 10
United States v. Dunifer, 997 F. Supp. 1235 (N.D. Cal. 1998) ..................................................... 11
United States v. Hugs, 109 F.3d 1375 (9th Cir. 1997) ................................................................... 11
Walsh v. Honolulu, 460 F. Supp. 2d 1207 (D. Haw. 2006) ..................................................... 10, 11
Wang v. Reno, 81 F.3D 808 (9th Cir. 1996) .................................................................................. 11
Washington v. Glucksberg, 521 U.S. 702 (1997) .................................................................... 24, 25
Whalen v. Roe, 429 U.S. 589 (1977) .............................................................................................. 23
Witt v. Dep't of Air Force, 527 F.3d 806 (9th Cir.2008) .......................................................... 15, 25
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STATE CASES
Baehr v. Lewin, 852 P.2d 44 (Haw. 1993) ....................................................................................... 3
In re Marriage Cases, 43 Cal. 4th 757 (2008) ............................................................................... 20
Strauss v. Horton, 46 Cal. 4th 364, 411 (2009) ......................................................................... 9, 20
FEDERAL STATUTES
Defense of Marriage Act (DOMA), 1 U.S.C. § 7 ...................................................................passim
26 U.S.C. § 152 .......................................................................................................................passim
26 U.S.C. § 7702B(f) ..............................................................................................................passim
26 U.S.C. § 4980C ......................................................................................................................... 21
STATE STATUTES
Cal. Gov’t Code § 21661 ................................................................................................................. 6
Cal. Fam. Code § 297.5 ................................................................................................................... 7
LEGISLATIVE HISTORY
H.R. Rep. No. 104-664 at 16 (1996), reprinted in 996 U.S.C.C.A.N. 2905, 2906-07 ..................... 5
142 Cong. Rec. H7275 (daily ed. July 11, 1996) ............................................................................. 5
142 Cong. Rec. H7480 (daily ed. July 12, 1996) ............................................................................. 5
142 Cong. Rec. H7495 (daily ed. July 12, 1996) ............................................................................. 5
142 Cong. Rec. S10, 110 (daily ed. Sept. 10, 1996) ........................................................................ 5
142 Cong. Rec. S3578-01 (Apr. 18, 1996) ...................................................................................... 2
Joint Committee on Taxation, “Description of Federal Tax Rules and Legislative Background
Relating to Long-Term Care Scheduled for a Public Hearing Before the Senate
Committee on Finance on March 27, 2001,” at 2001 WL 36044116 (I.R.S.) ................. 2, 3
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ADDITIONAL AUTHORITIES
Fed. R. Evid. 201(b) ....................................................................................................................... 12
Fed. Reg., vol. 75, no. 104 (Jun. 1, 2010) ...................................................................................... 21
Report of the U.S. General Accounting Office, Office of General Counsel, 1/31/97
(GAO/OGC-97-16) .............................................................................................................. 5
Bowman and Cornish, A More Perfect Union: A Legal and Social Analysis of Domestic
Partnership Ordinances, 92 Colum. L. Rev. 1164 (June 1992) .......................................... 4
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INTRODUCTION
This case challenges the constitutionality of 26 U.S.C. § 7702B(f), a portion of HIPAA,
as originally signed into law on August 21, 1996, and as amended shortly thereafter by 1 U.S.C.
§ 7 (the Defense of Marriage Act, or DOMA, signed September 21, 1996). With no permissible
rationale, this federal law excludes legally recognized domestic partners and spouses of gay and
lesbian public employees from participation in state-provided long-term care plans, plans which
provide benefits and security critical to the physical and financial wellness of families. Because
this exclusion bears no rational relationship to any legitimate governmental interest, it cannot
pass constitutional muster. This case also challenges the constitutionality of portions of the
California Code that implement similarly unconstitutional exclusions. As in Gill v. Office of
Personnel Management, 699 F. Supp. 2d 374 (D. Mass. 2010) and In re Levenson, 560 F.3d
1145, 1149 (9th Cir. Judicial Council, 2009), the Plaintiffs here state valid claims under the
Constitution. The federal defendants’ motion to dismiss must be rejected.
BACKGROUND AND STATEMENT OF FACTS
Plaintiffs are employees of the State of California and their spouses who are in long-term
committed relationships legally recognized under California law as marriages and domestic
partnerships. As state employees and as members of the California Public Employees’
Retirement System (“CalPERS”), Plaintiffs Michael Dragovich, Elizabeth Litteral, and Carolyn
Light (“Plaintiff employees”) are eligible to apply to join the CalPERS Long Term Care (“LTC”)
Program. Under California and federal law, members of the Plaintiff employees’ extended
families are also eligible to apply to the CalPERS LTC Program – but their legally recognized
partners of the same sex, Plaintiffs Michael Gaitley, Patricia Fitzsimmons, and Cheryl Light
(“Plaintiff spouses”) are not. Plaintiffs argue that excluding the same-sex partners and spouses
from the CalPERS LTC Program – while permitting virtually any other family member to
participate – unconstitutionally discriminates against lesbians and gay men, and their families, by
denying them the opportunity to plan for long-term care needs afforded to identically situated
families of heterosexual couples.
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The Importance of Long-Term Care to Families.
Long-term care insurance helps reduce the financial risk accompanying the cost of
extended care by covering those who need assistance with basic activities of living due to chronic
illness, injury, the frailty of old age, or a severe cognitive impairment such as Alzheimer’s
disease. CalPERS Ans. ¶ 3. In most instances, individuals and their families are not otherwise
covered for this type of extended long-term care by health insurance, disability insurance,
Medicare, or MediCal. Compl. ¶ 3. Long-term care insurance is thus an important benefit for
individuals, couples, and families – regardless of sexual orientation – to enhance financial
security, and to ensure access to appropriate care throughout the life cycle.
Without long-term care insurance, the high costs of care can force families to make
painful choices such as selling a family home to pay the bills, or having a working adult give up a
job and income to work without pay as a caretaker for a loved one. Compl. ¶ 4. The
consequences of such steps can be financially and emotionally devastating, and in some cases
insufficient, leaving individuals in poverty and dependent upon the limited services provided by
Medicaid. Id. Long-term care insurance allows families to avoid such contingencies. Id. Here,
through participation in the CalPERS Long-Term Care Program, Plaintiffs seek an adequate
safety net for themselves and their families in the event that future debilitating illness or injury
requires long-term care services.
Long-term care insurance also serves the public interest by spreading the risk of
catastrophic expense, and helping individuals receive adequate assistance when they become
unable to care for themselves, reducing the burden on publicly funded programs. Compl. ¶ 7.
The Enactment of 26 U.S.C. § 7702b(f).
Recognizing the importance of long-term care insurance in protecting families, the federal
government in 1996 adopted certain minimum standards for policies, including important tax
advantages. “The legislation … provides tax deductibility for long term care insurance, making
it possible for more Americans to avoid financial difficulty as the result of chronic illness.” 142
Cong. Rec. S3578-01 at *3608 (Statement of Sen. McCain) (Apr. 18, 1996); see also Joint
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Committee on Taxation, “Description of Federal Tax Rules and Legislative Background Relating
to Long-Term Care Scheduled for a Public Hearing Before the Senate Committee on Finance on
March 27, 2001,” at 2001 WL 36044116 (I.R.S.) (provisions were adopted “to provide an
incentive for individuals to take financial responsibility for their long-term care needs.”). The
legislation included 26 U.S.C. § 7702B(f), the provision challenged herein, which enables states
to offer tax-shielded (“qualified”) long term care insurance programs to public employees and
their families. Section 7702B(f), as amended by 1 U.S.C. § 7, permits states to offer public
employees a “qualified,” tax-shielded, long-term care insurance plan that allows an employee to
enroll himself or herself, as well as all conceivable family members, except legally recognized
spouses and domestic partners who are the same sex as the employee.
Section 7702B(f) was enacted and first amended against a background of considerable
congressional debate and agitation about the prospect of state and local governments recognizing
the legal validity of the relationships of lesbians and gay men. The 1996 legislative session
explicitly considered and reacted to the implications of Baehr v. Lewin, 852 P.2d 44 (Haw.
1993), a 1993 decision by the Hawaii Supreme Court indicating that lesbian and gay couples
might be entitled to marry under the Hawaii state constitution. See Gill, 699 F. Supp. 2d at 377
(“In large part, the enactment of DOMA can be understood as a direct legislative response to
Baehr v. Lewin.”).1
1 See id. at 377-78 (“The House Judiciary Committee's Report on DOMA (the “House Report”)
referenced the Baehr decision as the beginning of an ‘orchestrated legal assault being waged
against traditional heterosexual marriage,’ and expressed concern that this development
‘threaten[ed] to have very real consequences... on federal law.’ Specifically, the Report warned
that ‘a redefinition of marriage in Hawaii to include homosexual couples could make such
couples eligible for a whole range of federal rights and benefits.’”).
Along with the Baehr case, the 1996 Congressional debate occurred in the
context of emerging legislative models for the legal recognition of such couples on the state and
local levels. Local municipalities had begun to establish domestic partnership registries as a tool
for granting lesbian and gay couples some of the legal rights and benefits historically afforded
married couples. Such registries were established in West Hollywood (1985), Berkeley (1991),
Ann Arbor (1985), San Francisco (1992), Minneapolis (1991), Washington, D.C. (1992), and
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Seattle (1993).2
At issue in this case, the 1996 Congress excluded legally recognized domestic partners
and same-sex spouses from eligibility for state-sponsored public employee long-term care plans.
First, in enacting section 7702B(f), Congress permitted the participation of “employees and
former employees,” “the spouses of such employees,” and “individuals bearing a relationship
described in paragraphs (1) through (8) of section 152(a).” 26 U.S.C. § 7702B(f)(2)(C) (1997).
In choosing to incorporate these particular subsections of section 152(a), Congress permitted the
participation of “an array of relatives,” see Fed. Defendants’ Mot. at 1-2, and specifically sons,
daughters, stepsons, stepdaughters, grandchildren, sisters and brothers (defined to include half-
siblings
Bills to establish a state-wide domestic partnership registry were introduced in
the California Legislature during the 1993-94 and 1995-96 sessions. A.B. 2810 (1993); A.B. 627
(1995).
3), stepsisters, stepbrothers, fathers, mothers, stepfathers, stepmothers, grandparents,
nieces, nephews, aunts, uncles, sons-in-law, daughters-in-law, fathers-in-law, mothers-in-law,
brothers-in-law, and sisters-in-law. However, without identifying any legitimate purpose,
Congress excluded a single subsection, subsection (9), describing “an individual … who, for the
taxable year of the taxpayer, has as his principal place of abode the home of the taxpayer and is a
member of the taxpayer’s household.” This is the provision that would have permitted the
enrollment of domestic partners.4
In using the DOMA to deny a vast array of federal rights and benefits to gay and lesbian
couples, and in further excluding domestic partners from the laundry list of permitted relations in
Second, through the Defense of Marriage Act, Congress
limited the eligible “spouses” to different-sex spouses.
2 See Bowman and Cornish, A More Perfect Union: A Legal and Social Analysis of Domestic
Partnership Ordinances, 92 Colum. L. Rev. 1164, 1189-91 & nn.119-130 (June 1992).
3 26 U.S.C. § 152(b)(1) (1996); 26 U.S.C. § 152(f)(4) (2010).
4 See Arlington County v. White, 259 Va. 708, 716 (2000) (Kinser, J., concurring) (“[A]n
individual satisfying Arlington County’s definition of ‘domestic partner’ could also qualify as a
‘dependent’ under 26 U.S.C. § 152(a)(9).”); see also Hartfield v. C.I.R., T.C. Summ.Op. 2006-
77, 2006 WL 1280961 (U.S. Tax Ct., 2006); Rasco v. C.I.R., T.C. Memo. 1999-169, 1999 WL
311796 (U.S. Tax Ct.,1999); Aetna Cas. & Sur. Co. v. British Petroleum, No. Civ. A. Nos. 90-
4595, 90-5003, 1991 WL 148140 (E.D. La., July 30, 1991) (finding that unmarried woman
“living together out of wedlock” with a man could be his dependent under sub(9)). Through
2004, the provision was found at section 152(a)(9); it is now found at section 152(d)(2)(H).
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section 7702B(f), Congress failed to identify any legitimate, non-discriminatory federal interest
that would be served. (Indeed, it was only after the DOMA was enacted that the General
Accounting Office actually analyzed the federal laws affected by DOMA, finding that DOMA
implicated more than 1,000 laws. Report of the U.S. General Accounting Office, Office of
General Counsel, 1/31/97 (GAO/OGC-97-16); Gill, 699 F. Supp. 2d at 379, 390 n. 116
(reviewing 1997 and 2004 reports).) As discussed below, the interests identified by Congress in
excluding as a class same-sex spouses from a host of benefits, including tax-qualified state-
provided long-term care programs, have since been disavowed by the federal defendants,5
The motivating force of animus against lesbians and gay men, and their relationships, is
apparent from the legislative record. Members of Congress repeatedly voiced their disapproval
of homosexuality, calling it “immoral,” “depraved,” “unnatural,” “based on perversion” and “an
attack upon God's principles.” Id at 378. Legislators argued that marriage by gays and lesbians
would “demean” and “trivialize” heterosexual marriage and might indeed be “the final blow to
the American family.” Id at 378-79.
and
determined by federal courts to be ultimately rooted in “the one purpose that lies entirely outside
of legislative bounds, to disadvantage a group of which [Congress] disapproves.” Id. at 396.
6
5 Federal Defendants’ Motion at 3; see also Gill, 699 F. Supp. 2d at 388.
The official House report describes the purpose of the
DOMA to enshrine Congress’s “moral disapproval of homosexuality, and a moral conviction that
heterosexuality better comports with traditionally (especially Judeo-Christian) morality.” H.R.
Rep. No. 104-664 at 16 (1996), reprinted in 996 U.S.C.C.A.N. 2905, 2906-07.
6 The district court’s opinion in Gill compiles remarks made by members of Congress. See, e.g.
142 Cong. Rec. H7275 (daily ed. July 11, 1996) (statement of Rep. Barr: marriage is “under
direct assault by the homosexual extremists all across this country”); 142 Cong. Rec. H7480
(daily ed. July 12, 1996) (statement of Representative Henry Hyde, then-Chairman of the House
Judiciary Committee: “Most people do not approve of homosexual conduct ... and they express
their disapprobation through the law.”); id. at H7495 (statement of Rep. Lipinski: “Allowing for
gay marriages would be the final straw, it would devalue the love between a man and a woman
and weaken us as a Nation.”); 142 Cong. Rec. S10, 110 (daily ed. Sept. 10, 1996) (statement of
Sen. Helms: “[Those opposed to DOMA] are demanding that homosexuality be considered as
just another lifestyle-these are the people who seek to force their agenda upon the vast majority
of Americans who reject the homosexual lifestyle ... Homosexuals and lesbians boast that they
are close to realizing their goal-legitimizing their behavior.... At the heart of this debate is the
moral and spiritual survival of this Nation.”).
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Plaintiffs’ Opposition to Defendant’s Motion to Dismiss
Case No. CV 4:10-01564-CW Page 6
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The Reenactment of 26 U.S.C. § 7702B(f).
Section 7702B(f) was reenacted in 2004, again excluding gay and lesbian domestic
partners and spouses by adopting subparagraphs (A) through (G) of section 152(d)(2), as
amended. By 2004, the existence of legal relationship recognition for gay and lesbian couples in
many jurisdictions was well established. For example, California, New Jersey, Washington, and
Maine had enacted domestic partnership legislation, Vermont created civil unions, Hawaii
established reciprocal benefits for gay and lesbian couples, and in Massachusetts gay and lesbian
couples were legally permitted to marry. Additionally, municipalities across the country in states
without state-wide relationship recognition for gay and lesbian couples continued to adopt their
own ordinances. However, Congress, in again excluding legally recognized gay and lesbian
couples from this benefit, failed to offer any legitimate government rationale for doing so. See
Lorrillard v. Pons, 434 U.S. 575, 580-81 (1978) (“Congress is presumed to be aware of an
administrative or judicial interpretation of a statute and to adopt that interpretation when it re-
enacts a statute without change.”).7
The CalPERS Long-Term Care Program.
The CalPERS Long-Term Care Program is a state-provided, self-funded long-term care
insurance program under which benefits are not taxed. CalPERS Ans. at ¶ 44. The California
Government Code mandates that Defendant CalPERS Board of Administration offer public
employees and their families the opportunity to purchase qualified long-term care insurance
during periodic open enrollment periods. Cal. Gov’t Code § 21661(a). A state employee may
enroll himself or herself, and his or her different-sex spouse, as well as brothers, sisters, father,
mother, father-in-law, and mother-in-law, in the qualified long-term care insurance program
offered to California public employees. Cal. Gov’t Code § 21661(d). There is no limit to the
total number of family members who can enroll, so long as they fall into an approved family
7 Moreover, by 2004 California was excluding same-sex domestic partners from the CalPERS
LTC Program, purportedly based upon the federal tax law requirements. See Southwest Marine,
Inc. v. U.S., 535 F.3d 1012, 1020 (9th Cir. 2008) (finding that because Congress was aware of
how law had been applied but made no attempt to exclude that application when amending the
law, Congress intended the exclusion).
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Plaintiffs’ Opposition to Defendant’s Motion to Dismiss
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member category. However, same-sex domestic partners are excluded under the terms of state
and federal statutory law. 26 U.S.C. §§ 7702B(f)(1)-(2), 152(d)(2)(A)-(G); Cal. Fam. Code
§ 297.5(g). Same-sex spouses of public employees are excluded by virtue of federal statutory
law, 1 U.S.C. § 7, which CalPERS follows. CalPERS Ans. at 2:10-16; 6 ¶¶10-11.
Defendant CalPERS serves 1.6 million California public employees, retirees, and their
families, including employees within state agencies and universities, the California State
Legislature, current and former judges, and public school teachers.8 The agency is governed by a
Board of Administration with elected or appointed representatives from the various employee
sectors, and has adopted as part of its mission to ensure that its members needs’ are served well
into retirement.9 More than 160,000 individuals are members of the CalPERS Long-Term Care
Program. See CalPERS’ Ans. ¶ 10. The coverage offered is tax-qualified and inflation
protected.10 The Program provides guaranteed renewal of premiums with timely payments and
the assurance that premiums cannot be increased due to age or health.11 Further, only the
CalPERS’ Board of Administration is authorized to raise premiums after assessing and voting on
such a measure.12 Beneficiaries of the CalPERS Program are provided various premium
payment options, including electronic fund transfer or directly from pension benefits.13
ARGUMENT
For
these and other reasons, the CalPERS Long-Term Care Program affords public employees and
their families unique benefits, opportunities, and conveniences.
I. THE COMPLAINT ESTABLISHES PLAINTIFFS’ STANDING.
Plaintiffs seek relief from the categorical and unconstitutional exclusion of same-sex
8 See About CalPERS at http://www.calpers.ca.gov/eip-docs/about/facts/general.pdf (June 2010).
9 See “CalPERS Long-Term Care Program Premium Increases Recommended to Stabilize
Program,” December 15, 2009, at http://www.calpers.ca.gov/index.jsp?bc=/about/press/pr-
2009/dec/board-approves-premium.xml. (“CalPERS Press Release”); About CalPERS at
http://www.calpers.ca.gov/index.jsp?bc=/about/mission/home.xml.
10 See CalPERS Long Term Care Program Fact Sheet at http://www.calpers.ca.gov/eip-
docs/member/ltc/fact-sheet.pdf (“CalPERS LTCP Fact Sheet”).
11 CalPERS LTC Fact Sheet, supra note 10.
12 CalPERS LTC Fact Sheet, supra note 10; see also About CalPERS at
http://www.calpers.ca.gov/index.jsp?bc=/about/organization/board/members/home.xml
13 CalPERS State Handbook (2008 ed.), at http://www.calpers.ca.gov/eip-docs/employer/er-
forms-pubs/pubs/manuals/sh08-gen-info.pdf.
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Plaintiffs’ Opposition to Defendant’s Motion to Dismiss
Case No. CV 4:10-01564-CW Page 8
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spouses and domestic partners from the CalPERS Long-Term Care Program. The Complaint
adequately alleges that Plaintiffs were denied the opportunity to apply for a benefit based upon an
impermissible governmental classification, and that they are able and ready to apply for that
benefit once the barrier to it is lifted. Plaintiffs’ Complaint thus establishes an “injury in fact” –
an invasion of a legally protected interest which is concrete, particularized and “actual or
imminent, not ‘conjectural’ or ‘hypothetical.’” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
(1992) (internal citations omitted).
Plaintiffs have also established that the injury alleged is fairly traceable to the challenged
action, and not the result of an independent action of a third party. See Allen v. Wright, 468 U.S.
737, 759 (1984). CalPERS’s exclusion of same-sex spouses and domestic partners from
enrollment in the Long-Term Care Program derives directly from the federal statutes challenged
here. Similarly, the Complaint satisfies the third element of the standing inquiry by
demonstrating “a likelihood that the requested relief will redress the alleged injury.” Steel Co. v.
Citizens for a Better Env’t, 523 U.S. 83, 103 (1998). Plaintiffs seek relief from federal and state
statutes that, if declared unconstitutional, remove all statutory impediments to the eligibility of
same-sex spouses and domestic partners to enroll in the program. The federal defendants’
jurisdictional challenge should be denied.
A. Plaintiffs Have Alleged an “Injury In Fact” Based Upon the Categorical Exclusion
of Same-Sex Spouses and Domestic Partners.
The Complaint alleges an ongoing “injury in fact,” the denial of the opportunity to
participate in the enrollment process for CalPERS’s Long-Term Care Program on equal footing
with different-sex couples. Whether an individual plaintiff will ultimately be enrolled in the
plan, and whether Plaintiffs’ pecuniary harm can be mitigated by resort to the private market, are
neither relevant to nor dispositive of the standing determination. Rather, the denial of equal
treatment itself establishes Plaintiffs’ standing:
When the government erects a barrier that makes it more difficult for members of one
group to obtain a benefit than it is for members of another group, a member of the former
group seeking to challenge the barrier need not allege that he would have obtained the
benefit but for the barrier in order to establish standing. The “injury in fact” in an equal
protection case of this variety is the denial of equal treatment resulting from the
Case4:10-cv-01564-CW Document43 Filed08/12/10 Page16 of 33
Plaintiffs’ Opposition to Defendant’s Motion to Dismiss
Case No. CV 4:10-01564-CW Page 9
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imposition of the barrier, not the ultimate inability to obtain the benefit.
Ne. Fla. Chapter of Assoc’d Gen. Contractors of Am. v. Jacksonville, 508 U.S. 656, 666 (1993);
see also Gratz v. Bollinger, 539 U.S. 244, 261-63 (2003).
The federal Defendants seek to minimize the Plaintiffs’ injury, describing the harm as the
“purely speculative” “economic difference” between the cost of the CalPERS plan and those
plans available in the private market. Def.’s Mot. at 11. As the Complaint makes plain,
however, Plaintiffs allege a much broader injury: On the basis of sexual orientation, Plaintiffs
are unconstitutionally denied the opportunity to purchase coverage through the state’s long-term
care insurance program that is made available to all other families of state workers. Compl. ¶ 1;
see also id. ¶ 13; cf. Strauss v. Horton, 46 Cal. 4th 364, 411 (2009). When government barriers
are erected that offend the Constitution, the fact that private entities may or may not provide
comparable benefits does not undo the injury of the exclusion. In re Golinski, 587 F.3d 956, 960
(9th Cir. 2009) (“Even if the destination is the same, it’s still the back of the bus.”). Moreover,
Plaintiffs identify significant advantages to the CalPERS program.
1. Plaintiffs Have Established Their Intent to Apply for the Long-Term Care
Program When They are Deemed Eligible.
In a constitutional challenge, the intent of the plaintiff is relevant in determining whether
he is “ready and able” to apply for the benefit at issue. See Jacksonville, 508 U.S. at 666; Gratz,
539 U.S. at 261.14
14 Plaintiffs need not show that they ultimately would have been granted the benefit but for the
discriminatory statute. CC Distrib., Inc. v. United States, 883 F.2d 146, 150 (D.C. Cir. 1989)
(citing Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977) and Regents of the
Univ. of Cal. v. Bakke, 438 U.S. 265 (1978)).
In Gratz, the Court found standing where a student intended to apply to
transfer, but had not done so because of the school’s policy of taking race into account during its
admission process. 539 U.S. at 261. The Complaint similarly establishes Plaintiffs’ intent to
enroll in the CalPERS Long-Term Care Program. Indeed, Plaintiff Dragovich is already
enrolled. He made several attempts to enroll his spouse, Plaintiff Gaitley, but CalPERS refused
to furnish an application for that purpose. Compl. ¶¶ 41-42, 46-47; see also Decl. of Michael
Case4:10-cv-01564-CW Document43 Filed08/12/10 Page17 of 33
Plaintiffs’ Opposition to Defendant’s Motion to Dismiss
Case No. CV 4:10-01564-CW Page 10
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Dragovich ¶¶ 3-18 and Exhs. A-B (Dragovich Decl.).15
2. Because the Long-Term Care Program Categorically Excludes Same-Sex Spouses
and Domestic Partners From Enrollment, Plaintiffs Need Not Apply.
The intent of Plaintiffs Litteral,
Fitzsimmons, Light and Light to enroll in the program when permitted is plain from the
Complaint. Compl. ¶¶ 44, 45; see also Decl. of Patricia Fitzsimmons ¶¶ 1-14 (Fitzsimmons
Decl.); Decl. of Carolyn Light ¶¶ 1-14 (Light Decl.). Plaintiffs have demonstrated that they are
“ready and able” to apply for enrollment once the unconstitutional barrier is removed.
Because CalPERS, in reliance on federal law, explicitly excludes as a class same-sex
spouses and domestic partners from enrollment in its long-term care program, Plaintiffs may
demonstrate a cognizable injury in the absence of formal application for enrollment.16 For
example, a plaintiff may demonstrate that informal discussions occurred between the agency and
the would-be applicant.17 Similarly, the plaintiff may demonstrate that the effect of an
exclusionary policy is to render formal application an exercise in futility.18
Here, Plaintiffs Dragovich and Gaitley made repeated requests for an application, were
informed that Plaintiff Gaitley was ineligible to enroll, and were refused an application form.
They received a letter reiterating the exclusionary policy. Compl. ¶ 47; see also Dragovich Decl.
¶¶ 19-20, Exhs. C-D. Plaintiff couples Litteral and Fitzsimmons and Carolyn and Cheryl Light
are aware that CalPERS deems Plaintiff Fitzsimmons and Plaintiff Cheryl Light ineligible for
15 Plaintiffs may furnish affidavits or other evidence necessary to satisfy their burden of
establishing subject matter jurisdiction. See Savage v. Glendale Union High Sch. Dist., 343 F.3d
1036, 1040 (9th Cir. 2003); St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989); Assoc.
of Amer. Med. Colls. v. United States, 217 F. 3d 770, 778 (9th Cir. 2000).
16 See Compl. ¶ 47; see also Defs. CalPERS’ and Stausboll’s Answer at 1 (filed July 2, 2010)
(“Unfortunately, CalPERS and Stausboll have no choice but to comply with the federal tax laws
challenged here. Enrolling an employee’s same-sex spouse or domestic partner would jeopardize
the [Program’s] status as a qualified ‘State long-term care plan’ under Internal Revenue Code
(IRC) 26 U.S.C. § 7702B(f)(2).”).
17 United States v. Baugh, 187 F.3d 1037, 1042 (9th Cir. 1999) (informal negotiations with the
Park Service sufficient even though protesters never applied for permit); see also Ellison v.
Connor, 153 F.3d 247, 255 (5th Cir. 1998) (letter explaining that claimants would not be allowed
to build sufficient without permit application); Gordon v. State Bar, No. C08-3341 SI, 2008 U.S.
Dist. LEXIS 94672 at *8 (N.D. Cal. Nov. 20, 2008) (application unnecessary where
representative told applicant via telephone that he was ineligible); Walsh v. Honolulu, 460 F.
Supp. 2d 1207, 1212-13 (D. Haw. 2006) (application not required where state’s website indicated
that plaintiff would be ineligible).
18 Gordon, 2008 U.S. Dist. LEXIS 94672 at *8; see also Ellison, 153 F.3d at 255.
Case4:10-cv-01564-CW Document43 Filed08/12/10 Page18 of 33
Plaintiffs’ Opposition to Defendant’s Motion to Dismiss
Case No. CV 4:10-01564-CW Page 11
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enrollment. Compl. ¶ 12; see also Fitzsimmons Decl. ¶ 9; Light Decl. ¶¶ 6-8. Like the plaintiffs
in Walsh v. Honolulu, 460 F. Supp. 2d 1207, 1213 (D. Haw. 2006), the state’s policy of
exclusion deterred them from applying.19
In addition, the categorical exclusion of same-sex spouses and domestic partners renders
any formal application futile. See Taniguchi v. Schultz, 303 F.3d 950, 957 (9th Cir. 2002) (“We
have consistently held that standing does not require exercises in futility.”). For the purposes of
standing, futility exists when an “adverse decision by the agency is a certainty” because “the
agency lacks, or believes itself to lack jurisdiction, or if an agency has ‘articulated a very clear
position on the issue which it has demonstrated it would be unwilling to reconsider.’” United
States v. Dunifer, 997 F. Supp. 1235, 1240 (N.D. Cal. 1998); Wang v. Reno, 81 F.3D 808, 815
(9th Cir. 1996). Here, CalPERS has taken a position adverse to the Plaintiffs that it will not
modify. See Compl. ¶ 47; Answer at 1.
Plaintiffs’ counsel attended a CalPERS Board of
Administration Health Benefits Committee Meeting prior to filing this lawsuit, to no effect. See
Decl. of Claudia Center ¶¶ 3, 5, Exhs. A, C (Tr. at 89:22-92:5) (Center Decl.). Because
Plaintiffs’ inquiries revealed that they were ineligible for enrollment, a formal application was
not required to establish an injury in fact.
20
19 See also Walsh, 460 F. Supp. 2d at 1212 (“[A] class of applicants suffers an injury if they are
deterred from applying for a job because the State convinced them it would be futile to do so.”);
Breiner v. Nev. Dep't of Corr., --- F.3d ----, 2010 WL 2681730 at *2 (9th Cir. July 8, 2010);
Bouman v. Block, 940 F.2d 1211, 1221 (9th Cir. 1991) (“[A]n application would have been a
useless act serving only to confirm a discriminatee’s knowledge that the job he wanted was
unavailable to him”).
Where an agency is unable or unwilling to exercise its
discretion to address the plaintiff’s request, the requirement of a formal application serves no
purpose. Therefore, given both the of CalPERS’s exclusion of same-sex spouses and domestic
partners from the Long-Term Care Program, and CalPERS’s inability or unwillingness to modify
20 Where, as here, there is an explicit policy of exclusion, and the plaintiffs are “ready and able”
to apply, their exclusion as a class demonstrates that there is a real conflict between the parties.
Madsen v. Boise State Univ., 976 F.2d 1219, 1222 (9th Cir. 1992). Cases cited by Defendants
are not in conflict. Compare United States v. Hugs, 109 F.3d 1375 (9th Cir. 1997) (no standing
where agency may have granted the claimant a religious exception had he applied); Madsen, 976
F.2d 1219 (no standing where a university did not offer free accessible parking but voluntarily
created such parking in response to the plaintiff’s complaint); and Black Faculty Ass’n of Mesa
Coll. v. San Diego Cmty. Coll. Dist., 664 F.2d 1153 (9th Cir. 1981) (no standing where plaintiff
did not apply for a teaching position based on belief of discriminatory practices but no explicit
policy of discrimination).
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Plaintiffs’ Opposition to Defendant’s Motion to Dismiss
Case No. CV 4:10-01564-CW Page 12
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its position, Plaintiffs have established standing in the absence of formal application.
3. Plaintiffs Need Not Demonstrate the Unavailability of Economic Alternatives.
The federal defendants’ assertion that the Plaintiffs’ harm is self-imposed because the
Complaint does not allege the inadequacy of private insurance is unsupported by authority. See
Defs.’ Mem. at 11. Defendants rely on materials outside the pleadings to speculate that
CalPERS’s 2009 premium increase and decision not to establish an open enrollment period for
that year suggest that private plans may be more financially viable and procured at a lower cost as
compared to the CalPERS program, and are therefore more desirable to plaintiffs.21 However,
CalPERS’ own records and publications, as well as its Answer to Plaintiffs’ Complaint,
acknowledge the economic and other values of enrollment in the state-run plan. See, e.g.,
CalPERS Long Term Care Program Fact Sheet (“Even with the proposed rate increase, the
CalPERS Long-Term Care Program compares favorably with two major commercially available
plans”).22
As described in the Statement of Facts, there are significant differences between the
CalPERS program and plans available in the private market. CalPERS’s status as a trusted state
agency serving 1.6 million California public employees, retirees, and their families, whose
primary goal is to ensure its members’ needs are served well into retirement, makes CalPERS
unique and qualitatively different from private insurers. The CalPERS Long-Term Care Program
also provides benefits to members that are unavailable in the private market. For example, only
the Board of Administration is authorized to raise premiums after assessing and voting on such a
Market comparisons published by CalPERS in 2009 and 2010 rank the CalPERS
program as having the lowest available premiums of the plans surveyed. See Center Decl. ¶¶ 4,
6, Exhs. B, D.
21 Plaintiffs infer that the federal Defendants seek judicial notice of the California Department of
Insurance’s (“CDI”) Long-Term Care Rate and History Guide. Def.’s Mot. at 11 n.12. This
material, however, is not appropriately judicially noticed for the truth of the matters set forth
therein. See Belodoff v. Netlist, Inc., No. SA CV 07-00677 DOC (MLGx), 2008 WL 2356699
(C.D. Cal. May 30, 2008). “[D]ocuments [ ] such as analysts reports, may only be
considered . . . to establish ‘whether and when certain information was provided to the market’
not the truth of the matter asserted in the reports.” In re Wet Seal, Inc. Secs. Litig., 518 F. Supp.
2d 1148, 1157 (C.D. Cal. 2007). Furthermore, the material contains disputed factual information
that is not accurately and readily ascertainable. See Fed. R. Evid. 201(b).
22 See also CalPERS LTCP Fact Sheet, supra note 10.
Case4:10-cv-01564-CW Document43 Filed08/12/10 Page20 of 33
Plaintiffs’ Opposition to Defendant’s Motion to Dismiss
Case No. CV 4:10-01564-CW Page 13
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measure.23 Beneficiaries are provided various premium payment options, including electronic
fund transfer or deduction from pension benefits.24 The program offers a higher daily benefit
amount as compared to most private plans.25 All plans offered by CalPERS are tax-qualified and
inflation protected.26 Indeed, CalPERS’ Answer concedes that exclusion from the program
occasions a cognizable injury.27
B. Plaintiffs Satisfy the Remaining Elements of the Standing Inquiry.
As such, the program offers economic and other tangible
benefits not privately available, which must be considered as part of the standing inquiry: “[I]t
might be impossible to find an insurance plan on the private market that provides exactly the
same benefits . . . [and] the hassle and expense of finding such as plan [must be considered].” In
re Golinski, 587 F.3d 956, 960 (9th Cir. 2009).
Plaintiffs have alleged an injury that is fairly traceable to the challenged action and that is
not the result of an independent action of a third party. See Allen, 468 U.S. at 759. Plaintiffs’
harm – their categorical exclusion from enrolling in the CalPERS Long-Term Care Program – is
directly traceable to the Internal Revenue Code, as amended by section 3 of the Defense of
Marriage Act. See 1 U.S.C. § 7; 26 U.S.C. § 7702B(f)(2). CalPERS has confirmed that its
policy with respect to same-sex spouses is dictated by the federal laws that Plaintiffs challenge.
See Compl. ¶ 9; Answer at 1. The legislative history of California Family Code section 297.5(g),
which excepts domestic partners from enrollment in the program, makes clear that the California
legislature created the exception precisely to conform state law to the challenged federal
statutes.28
23 CalPERS LTCP Fact Sheet, supra note 10; see also About CalPERS, supra note 12.
24 CalPERS State Handbook (2008 ed.), supra note 13.
25 See Cal. Dept. of Insur. Policy Comparison Guide, at http://www.insurance.ca.gov/0100-
consumers/0060-information-guides/0050-health/ltc-rate-history-guide/policy-comparison-
forms-long-term.cfm (“CDI Policy Guide”); see also CalPERS LTCP Fact Sheet, supra note 10.
26 CalPERS LTCP Fact Sheet, supra note 10.
27 CalPERS states that enrolling same-sex spouses or domestic partners will “risk depriving
current LTCP members of tax advantages like receipt of tax-free benefits and possible tax
deductions for premiums,” tax provisions that were “adopted to provide an incentive for
individuals to take financial responsibility for their long-term care needs.” Answer ¶¶ 1, 8.
CalPERS concedes the ongoing nature of the injury to the Plaintiffs, in that “an individual who
enrolls at a younger age may pay lower premiums.” Answer ¶ 50.
28 See Senate Appropriations Committee, Bill Summary, AB 205 (Aug. 21, 2003) (“Author’s
amendments … make a correction to the language to ensure that the bill does not jeopardize the
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Plaintiffs’ Opposition to Defendant’s Motion to Dismiss
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The federal Defendants argue that Plaintiffs’ injury is traceable instead to CalPERS’
decision not to establish an open enrollment period in 2009, and to the Plaintiffs’ decision not to
purchase coverage in the private market. As discussed above, supra Part I.B.3, the argument that
Plaintiffs’ injury is a result of their own failure to purchase private insurance misconstrues the
broader injury alleged by Plaintiffs. Similarly, CalPERS’s decision not to offer a 2009 open
enrollment period does not eliminate the cause of Plaintiffs’ injury. CalPERS admits that it has a
statutory obligation to periodically establish open enrollment periods for the LTCP and the Chair
of the Health Benefits Committee has signaled its intent to do so in the future. Answer ¶ 10; see
also Cal. Gov’t. Code § 21661(a); Center Decl. ¶ 5, Exh. C (Tr. at 80:24-84:2, 85:7-87:9
(“[W]e’re trying to . . . make the appropriate decision as to when to reopen enrollment. . . .”).
Defendants’ arguments that Plaintiffs have failed to establish a “a likelihood that the
requested relief will redress the alleged injury” are similarly unavailing. Steel Co., 523 U.S. at
103. Plaintiffs’ Complaint establishes that the requested remedies will redress their injury, in
that they seek determinations from the Court that both the federal and state Defendants have
acted unconstitutionally. Compl. ¶ 15. An order striking the federal and state statutes preventing
Plaintiffs from enrolling in the program, along with a determination that CalPERS be required to
remove the categorical barrier to eligibility for same-sex spouses and domestic partners, fully
redresses Plaintiffs’ injury. Defendants again rely on the absence of a 2009 open enrollment
period to suggest that redress will not be forthcoming even if the Court orders the requested
relief, but the focus on the open enrollment period is misplaced. CalPERS is statutorily required
to establish such periods and CalPERS has also demonstrated alternate methods of processing
applications for the LTCP. See Center Decl. ¶ 7, Exh. E. A determination that 26 U.S.C. §
7702B(f), as amended by 1 U.S.C. § 7, is unconstitutional and that CalPERS must open
enrollment to same-sex spouses will therefore redress the injury to lawfully married same-sex
spouses. Because California law codifies the exclusion of domestic partners from eligibility for
tax-qualified status of the long-term care insurance plans provided by the CalPERS Long Term
Care Program”), at http://www.leginfo.ca.gov/pub/03-04/bill/asm/ab_0201-
0250/ab_205_cfa_20030826_153607_sen_comm.html.
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Plaintiffs’ Opposition to Defendant’s Motion to Dismiss
Case No. CV 4:10-01564-CW Page 15
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enrollment in the LTC Program in compliance with federal law, a determination that both the
federal and state Defendants have acted unconstitutionally will also redress the injury to
registered domestic partners, a point the federal Defendants concede. See Defs.’ Mem. At 13.
II. PLAINTIFFS HAVE STATED A CLAIM AGAINST THE FEDERAL
DEFENDANTS FOR VIOLATION OF THE FIFTH AMENDMENT’S
GUARANTEE OF EQUAL PROTECTION.
The guarantee of equal protection found in the Fifth Amendment29
A. Standard of Review For Purposes of This Motion.
“‘neither knows nor
tolerates classes among citizens.’” Romer v. Evans, 517 U.S. 620, 623 (1996) (quoting Plessy v.
Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting)); Gill, 699 F. Supp. 2d at 386
(quoting Romer). These words are now understood to state a commitment to neutrality where the
rights of persons are at stake. Id. Equal protection is “essentially a direction that all persons
similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S.
432, 439 (1985).
It is likely that some form of heightened constitutional scrutiny applies to classifications
based upon sexual orientation.30
29 In Bolling v. Sharpe, 347 U.S. 497 (1954), and in other cases, the Supreme Court held that the
due process clause of the Fifth Amendment requires that the federal government comply with the
requirements of equal protection.
However, the Court need not reach this issue for purposes of
this motion, because the Complaint states a claim that the challenged law fails even rational basis
30 See In re Levenson, 560 F.3d at 1149 (“I believe it likely that some form of heightened
constitutional scrutiny applies to Levenson's claims.”); Perry v. Schwarzenegger, __ F. Supp. 2d
__, 2010 WL 3025614 at *72 (N.D. Cal., Aug. 4, 2010) (“Although Proposition 8 fails to possess
even a rational basis, the evidence presented at trial shows that gays and lesbians are the type of
minority strict scrutiny was designed to protect. … [S]trict scrutiny is the appropriate standard
of review to apply to legislative classifications based on sexual orientation.”); Lawrence v Texas,
539 U.S. 558, 580 (2003) (O’Connor, J., concurring) (“When a law exhibits such a desire to
harm a politically unpopular group, we have applied a more searching form of rational basis
review to strike down such laws under the Equal Protection Clause.”); Witt v. Dep't of Air Force,
527 F.3d 806, 816-21 (9th Cir.2008) (applying heightened scrutiny on an “as applied” basis to a
discharged service member's challenge to the military's “Don't Ask, Don't Tell” policy, holding
that “[T]he Supreme Court applied a heightened level of scrutiny in Lawrence.”); id. at 823-26
(Canby, J., concurring in part and dissenting in part) (arguing that discrimination based on sexual
orientation is subject to strict scrutiny under equal protection and due process analyses); but cf.
High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563 (9th Cir. 1990) (pre-
Lawrence, pre-Romer ruling relying upon Bowers v. Hardwick in refusing to apply heightened
scrutiny to a claim of discrimination brought by gay and lesbian applicants seeking security
clearances). In several cases, advocates have presented evidence in support of the factors
supporting heightened or strict scrutiny.
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Plaintiffs’ Opposition to Defendant’s Motion to Dismiss
Case No. CV 4:10-01564-CW Page 16
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review. The exclusion of same-sex domestic partners and spouses from participation in state-
provided long-term care plans – while including every other conceivable family member –
advances no legitimate goal. The exclusion thus contravenes the Fifth Amendment to the
Constitution and is unconstitutional.
B. The Challenged Law Bears No Rational Relationship to Any Legitimate Interest.
Under rational basis review, any government action resting upon a distinction between
discrete classes “must be rationally related to a legitimate governmental purpose.” Cleburne, 473
U.S. at 446. “By requiring that the classification bear a rational relationship to an independent
and legitimate legislative end, we ensure that classifications are not drawn for the purpose of
disadvantaging the group burdened by the law.” Romer, 517 U.S. at 633. “[E]ven in the
ordinary equal protection case calling for the most deferential of standards, we insist on knowing
the relation between the classification adopted and the object to be attained. The search for the
link between classification and objective gives substance to the Equal Protection Clause.” Id. at
632; Perry v. Schwarzenegger, __ F. Supp. 2d __, 2010 WL 3025614 at *70 (N.D. Cal., Aug. 4,
2010) (quoting Romer); Gill, 699 F. Supp. 2d at 387 (same). Further, “[t]he State may not rely
on a classification whose relationship to an asserted goal is so attenuated as to render the
distinction arbitrary or irrational.” City of Cleburne, 473 U.S. at 446; Gill, 699 F. Supp. 2d at
388 (quoting Cleburne). In other words, a challenged law can only survive this constitutional
inquiry if it is “narrow enough in scope and grounded in a sufficient factual context for the court
to ascertain some relation between the classification and the purpose it serves.” Gill, 699 F.
Supp. 2d at 387. Here, as in Gill, “there exists no fairly conceivable set of facts that could ground
a rational relationship” between a legitimate government interest and the exclusion of same-sex
spouses and domestic partners from state-provided long-term care plans. See id.
Congress’s Stated Interests in Procreation, Child-Rearing, Traditional Marriage, and
Traditional Morality.
In enacting the DOMA, Congress identified various interests purportedly advanced by its
terms: “encouraging responsible procreation and child-rearing,” “defending and nurturing the
institution of traditional, heterosexual marriage;” “defending traditional notions of morality;” and
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Plaintiffs’ Opposition to Defendant’s Motion to Dismiss
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“preserving scarce government resources.” H.R. Rep. No. 104-664, at *12-*18; see also Gill,
699 F. Supp. 2d at 388. As to the first interest in “responsible procreation and child-rearing,” the
federal government has conceded that there is no rational relationship between the DOMA and
this interest.31 Additionally, procreation has never been a prerequisite for marriage.32
Similarly, Congress’s stated interests in “defending traditional marriage” and “defending
traditional notions of morality” are not grounded in sufficient factual context for this Court to
ascertain some relation between it and the classification challenged here. Gay people will not be
encouraged to enter into marriages with members of the opposite sex by the government’s refusal
to permit same-sex spouses to participate in state-provided long-term care programs. Nor will
the exclusion discourage same-sex couples from entering into marriages or domestic
partnerships; the Plaintiffs here are already married to persons of the same sex. Gill, 699 F.
Supp. 2d at 389; In re Levenson, 560 F.3d at 1150. Moreover, there is no basis for asserting that
excluding gay and lesbian couples from the benefits afforded other couples will encourage the
stability of heterosexual marriage. See Gill, 699 F. Supp. 2d at 389 (“And denying marriage-
Indeed,
access to long-term care plans enhances responsible procreation and child-rearing by protecting
the children of gay and lesbian couples from the devastating financial and emotional costs of
caring for ill or elderly parents.
31 Fed. Defs’ Mot. at 19, n.16; Gill, 699 F. Supp. 2d at 388 (“[T]he government concedes that
this objective bears no rational relationship to the operation of DOMA. Since the enactment of
DOMA, a consensus has developed among the medical, psychological, and social welfare
communities that children raised by gay and lesbian parents are just as likely to be well-adjusted
as those raised by heterosexual parents.” … [The denial of federal recognition of same-sex
marriage] does nothing to promote stability in heterosexual parenting. Rather, it prevents
children of same-sex couples from enjoying the immeasurable advantages that flow from the
assurance of a stable family structure.”); Perry, 2010 WL 3025614 at *55 (“Children raised by
gay or lesbian parents are as likely as children raised by heterosexual parents to be healthy,
successful and well-adjusted. The research supporting this conclusion is accepted beyond serious
debate in the field of developmental psychology.”)
32 Perry, 2010 WL 3025614 at *31 (“California, like every other state, has never required that
individuals entering a marriage be willing or able to procreate.”); Gill, 699 F. Supp. 2d at 389
(quoting from Lawrence, 539 U.S. at 605 (Scalia, J., dissenting)); Lawrence, 539 U.S. at 604-05
(Scalia, J, dissenting) (“If moral disapprobation of homosexual conduct is ‘no legitimate state
interest’ for purposes of proscribing that conduct … what justification could there possibly be for
denying the benefits of marriage to homosexual couples exercising ‘the liberty protected by the
Constitution’? Surely not the encouragement of procreation, since the sterile and the elderly are
allowed to marry.”).
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Plaintiffs’ Opposition to Defendant’s Motion to Dismiss
Case No. CV 4:10-01564-CW Page 18
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based benefits to same-sex spouses certainly bears no reasonable relation to any interest the
government might have in making heterosexual marriages more secure.”); Perry, 2010 WL
3025614, at *47 (“Permitting same-sex couples to marry will not affect the number of opposite-
sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect
the stability of opposite-sex marriages.”).
In any event, the exclusion defends “traditional notions of morality … only by punishing
same-sex couples who exercise their rights under state law, and thus exhibits the ‘bare desire to
harm’ same-sex couples that is prohibited under City of Cleburne and Romer.” In re Levenson,
560 F.3d at 1150; accord Gill, 699 F. Supp. 2d at 389 (punishment of same-sex couples to
promote heterosexual marriage is impermissible). Denying same-sex spouses and domestic
partners the opportunity to participate in a state-provided long-term care plan “is far too
attenuated a means of achieving the objective of ‘defending traditional notions of morality,’ as it
also is with respect to achieving the objective of ‘defending and nurturing the institution of
traditional, heterosexual marriage.’” See In re Levenson, 560 F.3d at 1150; accord Gill, 699 F.
Supp. 2d at 389-90 (“[T]he fact that the governing majority in a State has traditionally viewed a
particular practice as immoral is not a sufficient reason for upholding a law …”) (citing Romer
and Lawrence); Perry, 2010 WL 3025614 at **73, 77 (“Tradition alone, however, cannot form a
rational basis for a law. … A private moral view that same-sex couples are inferior to opposite-
sex couples is not a proper basis for legislation.”); Stanton v. Stanton, 421 U.S. 7, 14 (1975)
(finding a Utah statute defining age of majority as 18 for females and 21 for males violated equal
protection, and rejecting state Supreme Court’s reliance on traditional gender roles:
“Notwithstanding the ‘old notions' to which the Utah court referred, we perceive nothing rational
in the distinction drawn”).
Congress’s Stated Interest in Preserving Government Resources.
As to the fourth stated interest in “preserving scarce government resources,” the long-
term care plan at issue here is funded entirely by participant contributions; no state or federal
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Plaintiffs’ Opposition to Defendant’s Motion to Dismiss
Case No. CV 4:10-01564-CW Page 19
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dollars are at issue.33
The benefits provided by the tax-protected nature of the plan – made
available to an unlimited array of relations other than same-sex partners – are insufficient to
justify the discriminatory exclusion. In re Levenson, 560 F.3d at 1150-51 (“[T]hat a government
policy incidentally saves the government an insignificant amount of money does not provide a
rational basis for that policy if the policy is, as a cost-saving measure, drastically underinclusive,
let alone founded upon a prohibited or arbitrary ground.”). Moreover, as the federal defendants
underscore, see Fed. Defendants’ Mot. at 6, the Internal Revenue Code permits these same tax
protections in other long-term care plans available on the private market. Under these
circumstances, the relationship of the exclusion of same-sex domestic partners and spouses from
the plan to a stated interest in preserving financial resources is “so attenuated as to render the
distinction arbitrary or irrational.” City of Cleburne, 473 U.S. at 446; accord Reed v. Reed, 404
U.S. 71, 76 (1971) (mandatory preference for male estate administrators, purportedly to ease the
burden of probate courts, is “very kind of arbitrary legislative choice forbidden by the Equal
Protection Clause of the Fourteenth Amendment”).
The Federal Defendants’ Post-Hoc Interest in Preserving the Status Quo, and Allowing
the States to Decide.
Here, as in Gill, the federal defendants do not rely upon any of these stated interests, but
instead assert a fifth reason, that of “preserving the status quo of the definition of marriage for
purposes of federal law” while “allow[ing] each state to decide the underlying policy question for
itself[.]” Federal Defs.’ Mot. at 3; see also Gill, 699 F. Supp. 2d at 390; Perry, 2010 WL
3025614 at *78 (“While the Equal Protection Clause does not prohibit post-hoc rationales [for
purposes of rational basis review], they must connect to the classification drawn.”). As an initial
matter, the historic deference of Congress to state family law, including changing state law
definitions of marriage, casts doubt upon the legitimacy of the stated interest a uniform, federal
definition of marriage (which actually marked a departure from the “status quo”).34
33 In any event, “a concern for the preservation of resources standing alone can hardly
justify the classification used in allocating those resources.” Gill, 699 F. Supp. 2d at 390
(quoting from Plyler v. Doe, 457 U.S. 202, 227 (1982)).
Moreover,
34 Although domestic relations generally, and marriage, specifically, had always decisively been
the domain of the states, through DOMA, Congress purported to define familial relationships at
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Plaintiffs’ Opposition to Defendant’s Motion to Dismiss
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“consistency” or preserving the status quo is not an “interest” independent of some legitimate
governmental objective that preservation of the status quo might help to achieve. “Staying the
course is not an end in and of itself, but rather a means to an end.” Gill, 699 F. Supp. 2d at 393.
The sweeping changes rendered by the 1996 Congress are so far removed from the goal of
“consistency” that it is impossible to credit this justification as the motivating force for the
statute's enactment. Id at 394; see also Perry, 2010 WL 3025614 at *74 (“Proposition 8 is thus
not rationally related to proponents' purported interests in proceeding with caution when
implementing social change.”).
Important here, the asserted interest in “allowing each state to decide” is not rationally
advanced by the exclusion of same-sex spouses and domestic partners from state-provided long-
term care plans. California has had a state law granting rights to same-sex domestic partners
since 1999. In 2004, California enacted legislation that increased the rights, benefits and
responsibilities associated with domestic partnership, which became effective in 2005. Since
2008, California has recognized, under its state Constitution, that same-sex couples (whether
married or in domestic partnerships) are entitled to the same rights as heterosexual couples. In re
Marriage Cases, 43 Cal. 4th 757 (2008) (holding that denial of the right to marry to same-sex
couples violated the California Constitution); Strauss v. Horton, 46 Cal. 4th 364, 411 (2009)
(holding that, after Proposition 8, “as a matter of constitutional right,” California law continues
to accord same-sex couples, whether in legally recognized marriages or domestic partnerships,
the same respect and dignity and the same substantive legal rights and attributes as married
the federal level for the first time and to preclude same-sex couples from accessing any federal
rights and benefits that might otherwise have been available to them as legally recognized
spouses. See Gill, 699 F. Supp. 2d at 378 (The House [Judiciary Committee’s] Report
acknowledged that…‘[t]he determination of who may marry in the United States is uniquely a
function of state law.’ Nonetheless, it asserted that Congress was not ‘supportive of (or even
indifferent to) the notion of same-sex ‘marriage,’’ and, therefore, embraced DOMA as a step
toward furthering Congress's interests in ‘defend[ing] the institution of traditional heterosexual
marriage.’”), id. at 392 (“[T]he passage of DOMA marks the first time that the federal
government has ever attempted to legislatively mandate a uniform federal definition of marriage-
or nay other core concept of domestic relations, for that matter. … “[T]he status quo at the
federal level was to recognize, for federal purposes, any marriage declared valid according to
state law. Thus, Congress’ enactment of a provision denying federal recognition to a particular
category of valid state-sanctioned marriages was, in fact, a significant departure from the status
quo at the federal level.”).
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Plaintiffs’ Opposition to Defendant’s Motion to Dismiss
Case No. CV 4:10-01564-CW Page 21
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opposite-sex couples). California legally recognizes the marriages of approximately 18,000
same-sex couples who married in 2008, including the Plaintiffs here. California may well have
marriage equality again. See Perry, 2010 WL 3025614.35 Yet under current federal law,
California cannot follow its own state Constitution without risking the tax-qualified status of the
entire long-term care plan serving more than 160,000 persons. See generally, Commonwealth,
698 F. Supp. 2d at 248-49, 251-53 (reviewing threats to Commonwealth-administered programs
caused by federal law prohibiting recognition of marriages between persons of the same sex, and
discussing such federal law as imposing an “unconstitutional condition” upon the receipt of
federal funds). Despite the purported interest in “allowing each state to decide,” the challenged
exclusion prevents the state of California from following its own public policy and constitutional
law, which would otherwise mandate the inclusion of same-sex partners and spouses in its long-
term care plan.36 As in Commonwealth of Massachusetts v. U.S. Dept. of Health and Human
Services, 698 F. Supp. 2d 234, 236 (D. Mass. 2010), the federal government is forcing the State
of California to “engage in invidious discrimination against its own citizens.”37
Thus, the
exclusion severely injures and in no way advances the federalism interest asserted.
35 See also id. at *77 (“California may determine whether to retain domestic partnerships or
eliminate them in the absence of Proposition 8; the court presumes, however, that as long as
Proposition 8 is in effect, domestic partnerships … will remain.”).
36 On May 28, 2010, the U.S. Office of Personnel Management issued a final rule expanding
eligibility for coverage under the Federal Long Term Care Insurance Program (FLTCIP) to cover
same-sex domestic partners of eligible Federal and U.S. Postal Service employees and
annuitants. 75 Fed. Reg. 30267-68 (Jun. 1, 2010). Thus, the federal government is permitted to
make its own decision about including the legally recognized same-sex domestic partners of its
employees in its long-term care plan, but nor the state of California.
37 The important interest of the states in following their own laws was acknowledged in other
contexts associated with the statutes here. In enacting and amending section 7702B, Congress
adopted by reference portions of the Model Act promulgated by the National Association of
Insurance Commissioners as a minimum floor of protection for consumers, see 26 U.S.C. §§
7702B(g), 4980C(c), but acknowledged the continued force of state law requirements. See 26
U.S.C. §§ 7702B(g)(5) (“For coordination of the requirements of this subsection with State
requirements, see section 4980C(f)”), 4980C(f) (“If a State imposes any requirement which is
more stringent than the analogous requirement imposed by this section or section 7702B(g), the
requirement imposed by this section or section 7702B(g) shall be treated as met if the more
stringent State requirement is met.”). In enacting and amending section 152, Congress deferred
to state law in construing the definition of a “member of the taxpayer’s household.” See 26
U.S.C. § 152(b)(5) (1986) (“An individual is not a member of the tax payer’s household if at any
time during the taxable year of the taxpayer the relationship between such individual and the
taxpayer is in violation of local law.”), 26 U.S.C. § 152(f)(3) (2010) (same).
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Plaintiffs’ Opposition to Defendant’s Motion to Dismiss
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C. The Challenged Law Impermissibly Excludes Same-Sex Spouses and Domestic
Partners Based Upon Animus Against Lesbians and Gay Men and their
Relationships.
In enacting and amending section 7702B in 1996, Congress set forth no particular interest
in excluding same-sex domestic partners and spouses from state-provided long-term care plans,
while including every other conceivable family member. But in enacting the DOMA during the
same Congressional session, which amended section 7702B (along with hundreds of other laws)
to exclude same-sex spouses, Congressional leaders expressed deep hostility toward gay people,
their relationships, and their families. The exclusion of same-sex domestic partners and spouses
from state-provided long-term care plans “cannot be justified as an expression of the
government’s disapproval of homosexuality, preference for heterosexuality, or desire to
discourage gay marriage.” In re Levenson, 560 F.3d at 1150; accord Perry, 2010 WL 3025614 at
*5 (“The state does not have an interest in enforcing private moral or religious beliefs without an
accompanying secular purpose.”) (citing Lawrence), *79 (“Moral disapproval alone is an
improper basis on which to deny rights to gay men and lesbians.”); Gill, 699 F. Supp. 2d at 396
(“animus alone cannot constitute a legitimate government interest”); Lawrence, 539 U.S. at 582
(O’Connor, J., concurring) (“Moral disapproval of this group, like a bare desire to harm the
group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection
Clause,” citing Moreno and Romer); Romer, 517 U.S. at 633 (legal classifications must not be
“drawn for the purpose of disadvantaging the group burdened by the law.”).38
38 Accord Cleburne, 473 U.S. at 446-47 (“[S]ome objectives – such as a bare desire to harm a
politically unpopular group – are not legitimate state interests.”), 450 (“The short of it is that
requiring the permit in this case appears to us to rest on an irrational prejudice against the
mentally retarded[.]”), 452 & n.4 (Stevens, J., concurring) (“The term ‘rational,’ of course,
includes a requirement that an impartial lawmaker could logically believe that the classification
would serve a legitimate public purpose that transcends the harm to the members of the
disadvantaged class. … If the adverse impact on the disfavored class is an apparent aim of the
legislature, its impartiality would be suspect.”); Dep’t of Agric. v. Moreno, 413 U.S. 528, 534
(1973) (“[I]f the constitutional conception of ‘equal protection of the laws' means anything, it
must at the very least mean that a bare ... desire to harm a politically unpopular group cannot
constitute a legitimate governmental interest.”); Tucson Woman’s Clinic v. Eden, 371 F.3d 1173,
1185-86 (9th Cir. 2004) (“[S]ome laws are so irrational or absurd on their face it is clear they can
be motivated by nothing other than animus or prejudice against a group,” citing Romer and
Cleburne); Pruitt v. Cheney, 963 F.2d 1160, 1165 (9th Cir.1992) (quoting Palmore v. Sidoti, 466
U.S. 429, 433 (1984) (“The Constitution cannot control such prejudices but neither can it tolerate
them. Private biases may be outside the reach of the law, but the law cannot, directly or
indirectly, give them effect.”)).
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Plaintiffs’ Opposition to Defendant’s Motion to Dismiss
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As Romer makes clear, “the differential treatment of gay people is not, in and of itself, a
proper justification for government actions.” In re Levenson, 560 F.3d at 1150; cf. Perry, 2010
WL 3025614 at 122 (“No evidence at trial illuminated distinctions among lesbians, gay men and
heterosexuals amounting to “real and undeniable differences” that the government might need to
take into account in legislating.”). Here, as in Romer, the circumstances underlying the
enactment of the exclusion challenged raise “the inevitable inference that the disadvantage
imposed [was] born of animosity toward the class of persons affected.” See Romer, 517 U.S. at
634-36; see also Lawrence, 539 U.S. at 571 (the existence of “powerful voices” condemning
homosexuality as immoral does not determine the definition of liberty for all).
III. PLAINTIFFS HAVE STATED A CLAIM AGAINST THE FEDERAL
DEFENDANTS FOR SELECTIVELY BURDENING PLAINTIFFS’ EXERCISE
OF A FUNDAMENTAL RIGHT ON THE BASIS OF SEXUAL ORIENTATION
IN VIOLATION OF THE DUE PROCESS CLAUSE.
The Supreme Court has long recognized that the due process clause embodies substantive
rights and liberties. See, e.g., Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (“Without a doubt, it
denotes . . . the right of the individual to contract, to engage in any of the common occupations of
life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship
God according to the dictates of his own conscience, and generally to enjoy those privileges long
recognized at common law as essential to the orderly pursuit of happiness by free men.”). These
rights and liberties include a fundamental interest in independence from undue government
influence when making certain highly personal decisions in “matters relating to marriage,
procreation, contraception, family relationships, and child rearing and education.” Whalen v.
Roe, 429 U.S. 589, 599-600 & n. 24, n. 26 (1977); accord Prince v. Massachusetts, 321 U.S.
158, 166 (1944) (The Constitution protects “the private realm of family life which the state
cannot enter.”).
Numerous government intrusions affecting family life, including the right to live together
as a family unit, see Moore v. East Cleveland, 431 U.S. 494 (1977) (striking down occupancy
restrictions and recognizing “larger conception of the family”), and the right to work during
pregnancy, see Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 640 (1974) (striking down
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forced maternity leave), have been held to violate the substantive due process rights enjoyed by
all persons.39
Despite the Congressional history underscoring the importance of long-term care to
families, family planning, and family stability, the federal defendants attempt to recast the
Plaintiffs’ allegations as describing nothing more than a mere “incidental economic burden.”
Fed. Defendants’ Mot. at 16. Citing Regan v. Taxation with Representation of Wash., 461 U.S.
540, 549 (1983), the federal defendants contend that a legislature need not “subsidize” the
exercise of a fundamental right, and that therefore there can be no infringement of the Plaintiffs’
constitutional rights here. Fed. Defendants’ Mot. at 16. But the Regan case also holds that
“government may not place obstacles in the path of a [person’s] exercise” of those rights. Id.
Plaintiffs allege that their ability and autonomy to engage in financial and long-term care
planning with their lawful spouses and domestic partners is unfairly and selectively constrained
by operation of section 7702B(f). See Compl. ¶ 70. Solely because of their status as same-sex
couples, they face a discriminatory barrier placed upon them by the government that prevents
them from fully and equally exercising their familiar rights.
Here, Congress has chosen to list an array of “acceptable” family members for
participation in state-provided long-term care plans – from different-sex spouses, to parents and
grandparents, to children and step-children, to aunts and uncles, to in-laws (father-in-law,
mother-in-law, sister-in-law, brother-in-law, son-in-law, daughter-in-law), to aunts and uncles, to
siblings (including half- and step-siblings) – but has intentionally excluded same-sex spouses and
domestic partners. This unprecedented intrusion into the definition of family burdens families of
gay and lesbian couples seeking to exercise their fundamental rights to engage in family decision-
making and planning. By preventing same-sex partners and spouses from participating in a
critical government-sponsored tool for family planning, Congress places a selective, and
unconstitutional, burden on these families.
39 See Loving v. Virginia, 388 U.S. 1 (1967) (striking down marriage restrictions); Griswold v.
Connecticut, 381 U.S. 479 (1965) (striking down restrictions on contraceptives); Carey v.
Population Servs. Int’l, 431 U.S. 678 (1977) (same); Pierce v. Society of Sisters, 268 U.S. 510
(1925) (striking down prohibition on private school attendance); see also Washington v.
Glucksberg, 521 U.S. 702, 720 (1997) (collecting cases).
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Plaintiffs’ Opposition to Defendant’s Motion to Dismiss
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This kind of sexual orientation-based burdening of fundamental rights and liberties is
recognized as impermissible today. Lawrence, 539 U.S. at 578 (holding that same-sex couples
have the constitutional right to engage in intimate relationships “without the intervention of the
government.”); Witt, 527 F.3d at 816 (“We cannot reconcile what the Supreme Court did in
Lawrence with the minimal protections afforded by traditional rational basis review.”). In Witt,
the Ninth Circuit made clear that adverse employment actions – such as the refusal to permit
same-sex couples to enroll in a state-sponsored LTC Plan – constitute sufficient injury to give
rise to an actionable due process claim. Witt, 527 F.3d at 812 (concluding that suspension from
work resulting in loss of pay and points toward promotion and retirement is sufficient grounds
for Lawrence-based claim). While such intrusions have often been reviewed under heightened
scrutiny, the unnecessary intrusion by the government here into the private family lives of each of
the Plaintiffs violates the Constitution under any standard. See Glucksberg, 521 U.S. at 728
(“The Constitution also requires, however, that [the challenged law] be rationally related to
legitimate government interests.”). Here, with no legitimate or rational basis, see pages 12 to 19,
supra, Section 7702B places an impermissible obstacle to the Plaintiffs’ ability to access long-
term care insurance and thereby ensure family stability throughout the life cycle.
CONCLUSION
For all of the reasons stated, Section 7702B violates the equal protection and substantive
due process guarantees of the Fifth Amendment to the Constitution. The plaintiffs have stated
claims for relief, and the federal defendants’ motion to dismiss should be rejected.
Dated: August 12, 2010 Respectfully submitted,
THE LEGAL AID SOCIETY
EMPLOYMENT LAW CENTER
By: /s/ Claudia Center
Claudia Center
By: /s/ Shelley A. Gregory
Shelley A. Gregory
Attorneys for Plaintiffs
Case4:10-cv-01564-CW Document43 Filed08/12/10 Page33 of 33
