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Motion for summary judgment, denial of dismissal filed in Dragovich DOMA case

DOMA trials

By Jacob Combs

This last month, a new DOMA case in California called Dragovich v. CalPERS moved forward in district court.  The class-action suit, brought by the Legal Aid Society-Employment Law Center (LAS-ELC) was filed on behalf of three California employees and their same-sex partners, who are ineligible to enter into California’s long-term care plan CalPERS due to DOMA.  The three couples in the case were married in California when gay marriage was legal in 2008.

On January 20, LAS-ELC filed a motion for summary judgment in the Dragovich case, arguing that exclusion of same-sex couples in California from the state’s long-term care program violates their equal protection rights.  Because the classification of the plaintiffs is based on their sexual orientation, LAS-ELC argues that heightened scrutiny should be used by the court in making its decision, but that DOMA is still unconstitutional even when subjected to rational basis scrutiny.  Furthermore, the organization argues that same-sex couples who entered into domestic partnerships in California but did not wed in 2008 are identically excluded from the long-term care program, and have been the victims of the same equal protection infringement.  Later, LAS-ELC added two more plaintiffs to the suit, a couple which had entered into a domestic partnership but not been married.

The district court denied the federal defendants’ request to dismiss the plaintiffs equal protection and due process chalenges, and also last week denied their request to dismiss the claim pertaining to couples in domestic partnerships.  You can read LAS-ELC’s motion for summary judgment below, as well as the orders denying the federal defendants’ requests for dismissals, below.  A hearing in the Dragovich case will take place in Oakland on April 26 at 2:00 pm, with Judge Claudia Wilken presiding.  We’ll have more here at P8TT as this case develops.

LAS-ELC’s Motion for Summary Judgment

Order Denying Motion to Dismiss Constitutional Challenges 

Order Denying Motion to Dismiss Domestic Partnership Claims




  • 1. Thark  |  January 30, 2012 at 1:10 pm

    More Coffin nails for DOMA, and a failed FLop 8 in CA, just in time to gut NC's odious "Constitutional" amendment ploy.

    Summer of Love 2012…with a full 1/4 of all American citizens -Str8 or Gay, living as equals in a Marriage equality state by the November elections.

    And just think of all the slurs and gaffs we'll be treated to by the Antigays; only this time it could all well backfire on them.

    (Just like everything has been, since they made up this new1990's "tradition" of creating "law" out of thin air to harm us and only us..)

    They prey to "protect" marriage, only to confirm 18,000+ for good, against their original odious wishes to harm us.

    Hilarious, but only if you're living freely and eas one of "The 25%"!

  • 2. Henry Chavis  |  January 30, 2012 at 1:26 pm

    I guess liberty is only for the powerful

  • 3. EricKoszyk  |  January 30, 2012 at 1:54 pm


    Is there any chance that parts of DOMA are overturned by November? Does anyone know?

    I ask because that could well make a difference in a potential referendum vote on WA's upcoming marriage equality law.

    (and probably would help in ME and MD as well)

  • 4. Leo  |  January 30, 2012 at 2:46 pm

    Depends on what you mean by overturned. Overturned by a district court – yes, a 100% chance, because it's already happened in Massachusetts. Overturned by the Supreme Court – no chance whatsoever.

  • 5. EricKoszyk  |  January 30, 2012 at 4:25 pm

    Thanks. It's hard to keep up with every court case out there.

    I guess that DOMA related news won't help November votes out much.

  • 6. Jamie  |  January 30, 2012 at 6:07 pm

    Well, the "no" chance of a Supreme Court response in DOMA is a bit suspect. I think the first circuit is expected to rule in Gil vs. OPM before November and could issue a short stay that would require an emergency appeal to the Supreme Court. The full or partial court would need to respond in short order. There could need to be some sort of response from SCOTUS, and they could refuse to continue the stay. (weirder things have happened – I mean John Roberts single-handedly said "no way" to the challenge of D.C.'s gay marriage law – I would have bet the other way on that one)

  • 7. Sagesse  |  January 30, 2012 at 1:55 pm


  • 8. EricKoszyk  |  January 30, 2012 at 1:57 pm

    Also —

    WA State Senate to vote on marriage equality on Wednesday:

  • 9. Seth from Maryland  |  January 30, 2012 at 2:04 pm


  • 10. Seth from Maryland  |  January 30, 2012 at 2:16 pm

    The Maryland Senate Judicial Proceedings Committee will hold its first hearing on the Civil Marriage Protection Act tomorrow at 1 p.m. but LGBT supporters will be at work hours before the testimony begins.

    Marylanders for Marriage Equality has announced a 9:30 a.m. rally for supportive clergy at the Maryland Inn (16 Church Circle) in Annapolis.

    The hearing comes a day after the Washington Post released the results of a poll of Maryland voters finding 50 percent in favor of same-sex marriage and 44 percent opposed.

  • 11. Lee  |  January 30, 2012 at 3:04 pm

    I know that DOMA is much bigger than Californias Prop 8, but does anyone have a good guess as to when the 9th Circuit will announce the verdict? It's been over a month now….

  • 12. Sam  |  January 30, 2012 at 5:26 pm

    No one really knows, but unfortunately it's quite possible that for a case this complex (made even more complex by all the underlying procedural issues) that it could be at least a few more months. 3 or 4 months is common for complicated cases.

  • 13. Lee  |  January 30, 2012 at 5:38 pm

    Thanks Sam. Let's keep our fingers crossed!!

  • 14. Jamie  |  January 30, 2012 at 6:10 pm

    Well, it's not like they haven't had it for over a year. They also promised a speedy decision. Hopefully AFER will submit another request to have the stay vacated if they continue to drag their feet.

  • 15. Stefan  |  January 30, 2012 at 6:17 pm

    If we don't have a ruling by the end of February I will be shocked.

  • 16. lee  |  January 31, 2012 at 10:38 am

    do you really think they will have a ruling by the end of Feb? I hope so!!!

  • 17. Stefan  |  February 2, 2012 at 12:32 am

    Well they are announcing the verdict on releasing the trial tapes today, so the main ruling can't be far off at all.

  • 18. Paul  |  January 30, 2012 at 7:15 pm

    I'm curious to understand the general process involved in their deliberations. Do they meet together and debate, what and who does additional legal research etc

  • 19. Bill S.  |  January 31, 2012 at 6:48 am

    If you're talking about the 9th Circuit Prop 8 Case: all judicial panels have "conferences." The 3 judges will sit down in a room privately and deliberate the case. They are each allowed to conduct their own legal research although their decision will most likely be based on the arguments submitted by the lawyers on both sides. Once they arrive at a conclusion, the judges will decide who will write the opinion of the court. The other judges can write a separate concurring or dissenting opinion if they wish.

  • 20. lee  |  January 31, 2012 at 10:42 am

    Hi Bill, what is your guess as to when the 9th will announce the verdict. Also, if they announce prop 8 unconstitutional, does that mean that same sex marriage will be allowed right away in CA? thx

  • 21. Bill S.  |  February 1, 2012 at 4:41 am

    Before February. But they are under no obligation to release their ruling by a certain date.

    Same-sex marriage would not be allowed right away (assuming the 9th Circuit rules in our favor, as nearly every legal expert is predicting) because the Federal Rules of Civil Procedure Rule 62 mandate an automatic 14-day stay for rulings in all federal civil proceedings. This will give the appellants (i.e. the anti-equality side) to file for a continued stay as they appeal to the Supreme Court. Whether or not this is granted, I don't know. I do know that Justice Kennedy handles stay request from the 9th Circuit, but I think he has refused motions to get rid of the stay from our side in the past. So who knows.

  • 22. Stefan  |  February 2, 2012 at 12:30 am

    The attempt to lift the stay from our side was denied by the 9th Circut, not Kennedy.

  • 23. Carpool Cookie  |  January 31, 2012 at 1:02 pm

    [b]<< Once they arrive at a conclusion, the judges will decide who will write the opinion of the court. >>[/b]

    I imagine that drafting the opinion goes through several drafts, and that the concurring judges are given the chance to suggest changes? That can be a slow process, as well.

    @ Jamie: There's no indication the 9th Circuit is "dragging their feet". This is just the way the court system works.

  • 24. Bill S.  |  February 1, 2012 at 4:44 am

    By the end of their conference, they are in agreement what the majority decision is and the legal avenue by which they arrive at their decision.

    If a judge agrees with the majority decision, but disagrees on the legal arguments that are used to arrive at that decision, he will write a separate concurring opinion.

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