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Case: 10-2207

Document: 00116337226

Page: 1

Date Filed: 02/22/2012

Entry ID: 5620574

Also filed in cases number 10-2204, 10-2214

February 21, 2012

By Electronic Case Filing The Honorable Margaret Carter, Clerk of Court United States Court of Appeals for the First Circuit John Joseph Moakley U.S. Courthouse 1 Courthouse Way, Suite 2500 Boston, MA 02210 Re: Gill v. Office of Personnel Management, Nos. 10-2204, 10-2207, & 10-2214 Dear Ms. Carter, On behalf of the Bipartisan Legal Advisory Group of the U.S. House of Representatives, we write pursuant to Rule 28(j) regarding Perry v. Brown, 2012 WL 372713 (9th Cir. Feb. 7, 2012). Contrary to Plaintiffs suggestion, Perry does not support Plaintiffs challenge to Section 3 of the Defense of Marriage Act (DOMA). Indeed, the most striking thing about the opinion is the very narrowness of its reasoning in striking down Californias Proposition 8. The panel majority in Perry repeatedly emphasized that its ruling was based on the specific history of same-sex marriage in California, id. at 12: California had already extended to committed same-sex couples both the incidents of marriage and the official designation of marriage, and Proposition 8s only effect was to take away that important and legally significant designation. Id. at 1; see also, e.g., id. at 33, 20 n.20. By contrast, same-sex couples were no more eligible for federal marital benefits (or subject to federal burdens) before DOMAs passage than after it. In stark contrast to Proposition 8, DOMA was designed to preserve the status quo. The Perry panel majority expressly did not decide whether a state may decline to provide the right to marry to same-sex couples. Id. at 18; see also id. at 17. Nor did it decide whether the interests in responsible procreation and childrearing would be legitimate under other circumstances. Id. at 20; see id. (We need not decide this question); id. at 22 (same); id. at 23 (again, we need not decide this question). Similarly, the panel majority did not decide whether the interest in proceeding with caution when considering changes to the definition of marriage would justify a different law in other circumstances. Id. (internal quotation marks and brackets omitted). See also id. (noting that Proposition 8 amended the state constitution to impose a permanent ban); id. at 25 (We . . . do
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Case: 10-2207

Document: 00116337226

Page: 2

Date Filed: 02/22/2012

Entry ID: 5620574

not decide whether the interests of promot[ing] childrearing by biological parents, encourag[ing] responsible procreation, or proceed[ing] with caution in social change would justify a law that furthered such interests). Respectfully submitted,

Paul D. Clement Counsel for the Bipartisan Legal Advisory Group of the U.S. House of Representatives