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    This document acknowledges the United States' receipt of notice that the plaintiffs are challenging the constitutionality of the Defense of Marriage Act in their lawsuit against Kentucky officials. It notes that the United States may intervene in the case within 60 days to defend the constitutionality of federal statutes. However, it argues that the court may not need to address the constitutionality of the Defense of Marriage Act in order to resolve this case. The United States will continue monitoring the case to determine if a ruling on the statute's constitutionality becomes necessary.

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    Doc 44

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    3:13-cv-00750 #44

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    This document acknowledges the United States' receipt of notice that the plaintiffs are challenging the constitutionality of the Defense of Marriage Act in their lawsuit against Kentucky officials. It notes that the United States may intervene in the case within 60 days to defend the constitutionality of federal statutes. However, it argues that the court may not need to address the constitutionality of the Defense of Marriage Act in order to resolve this case. The United States will continue monitoring the case to determine if a ruling on the statute's constitutionality becomes necessary.

    Copyright:

    Attribution Non-Commercial (BY-NC)
    Download as PDF, TXT or read online from Scribd
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    263 views4 pages

    United States District Court Western District of Kentucky at Louisville

    Uploaded by

    Equality Case Files
    This document acknowledges the United States' receipt of notice that the plaintiffs are challenging the constitutionality of the Defense of Marriage Act in their lawsuit against Kentucky officials. It notes that the United States may intervene in the case within 60 days to defend the constitutionality of federal statutes. However, it argues that the court may not need to address the constitutionality of the Defense of Marriage Act in order to resolve this case. The United States will continue monitoring the case to determine if a ruling on the statute's constitutionality becomes necessary.

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    Case 3:13-cv-00750-JGH Document 44 Filed 01/21/14 Page 1 of 4 PageID #: 667

    UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY AT LOUISVILLE ) ) ) ) ) ) ) ) ) ) ) )

    GREGORY BOURKE, et al.

    Plaintiffs, v. STEVE BESHEAR, et al. Defendants.

    Civil Case No. 3:13-CV-750-JGH Electronically filed

    UNITED STATES ACKNOWLEDGEMENT OF CONSTITUTIONAL CHALLENGE The United States hereby acknowledges receipt of Plaintiffs Notice of Constitutional Challenge, dated November 19, 2013, in which Plaintiffs informed the Attorney General of the United States that the Second Amended Complaint call[s] into question the constitutionality of Section 2 of the Defense of Marriage Act (DOMA or Section 2), 28 U.S.C. 1738C. Notice [Dkt. 33] at 1. Pursuant to Federal Rule of Civil Procedure 5.1(c), the United States may intervene within sixty days after a Notice of Constitutional Challenge has been filed, [u]nless the court sets a later time. Fed. R. Civ. P. 5.1(c). Before the time to intervene expires, the court may reject the constitutional challenge, but may not enter a final judgment holding the statute unconstitutional. Id. The Solicitor General of the United States decides whether the United States should intervene to defend the constitutionality of an Act of Congress. See 28 C.F.R. 0.21 (The Solicitor General may in consultation with each agency or official concerned, authorize

    Case 3:13-cv-00750-JGH Document 44 Filed 01/21/14 Page 2 of 4 PageID #: 668

    intervention by the Government in cases involving the constitutionality of acts of Congress.). Obtaining the Solicitor Generals determination will require time for thorough consideration. At this juncture, it is far from clear that resolution of this case will require the Court to address the constitutionality of Section 2 of DOMA. See Gulf Oil Co. v. Bernard, 452 U.S. 89, 99 (1981) ([P]rior to reaching any constitutional question, federal courts must consider nonconstitutional grounds for decision.); Ashwander v. Tenn. Valley Authority, 297 U.S. 288, 34548 (1936) (Brandeis, J., concurring) (The Court will not anticipate a question of constitutional law in advance of the necessity of deciding it.) (quoting Liverpool, N.Y. & P.S.S. Co. v. Emigration Commrs, 113 U.S. 33, 39 (1885)). Plaintiffs bring this action to challenge the provisions of Kentucky law that prohibit the recognition of same-sex marriages licensed in other jurisdictions. While the Second Amended Complaint challenges Section 2 on various grounds, see [dkt. 31] Prayer for Relief E, Plaintiffs Memorandum in Support of their Motion for Summary Judgment argues only that Section 2 violates the Full Faith and Credit Clause of the Constitution. See [dkt. 38-1] at 23-27. Defendants do not appear to rely on Section 2 as a defense to this argument; rather, Defendants argue that DOMA 2 just makes express what is already implied, that the Full Faith and Credit Clause does not require states that do not recognize same-sex marriage to recognize same-sex marriages in other states. Defendants Response to Plaintiffs Motion for Summary Judgment [dkt. 39] at 8. Therefore, this Court may not need to address the constitutionality of Section 2 in order to resolve this case. Indeed, in denying the parties request for an amended scheduling order, this Court observed that at first glance, the question of whether Plaintiffs are entitled to relief appears not to require determining the constitutionality of Section 2. . . . After briefing is completed, should 2

    Case 3:13-cv-00750-JGH Document 44 Filed 01/21/14 Page 3 of 4 PageID #: 669

    subsequent circumstances reveal the constitutionality of Section 2 to be more consequential to the potential relief than anticipated or participation of the United States to be more essential, the Court can certainly reconsider the schedule. Memorandum and Order [dkt. no. 35] at 1. Therefore, the Court already has indicated that determining the constitutionality of Section 2 may not be necessary in this litigation. Accordingly, the United States will continue to monitor the docket for this case to determine whether the constitutionality of Section 2 will be consequential to this Courts resolution of Plaintiffs claims. Should this Court decide to certify the challenge to Section 2s constitutionality under 28 U.S.C. 2403, then the United States respectfully requests that the Court permit the United States to seek to intervene within thirty (30) days after such certification or by March 14, 2013, whichever is later. Dated: January 21, 2014 Respectfully submitted, STUART F. DELERY Assistant Attorney General ROBERT PITMAN United States Attorney ARTHUR R. GOLDBERG Assistant Branch Director /s/ Jennie L. Kneedler Jean Lin (NY Bar # 4074530) Jennie L. Kneedler (D.C. Bar # 500261) United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave., N.W. Washington, DC 20530 Tel: (202) 514-3716/(202) 305-8662 Fax: (202) 616-8470 [email protected] [email protected] 3

    Case 3:13-cv-00750-JGH Document 44 Filed 01/21/14 Page 4 of 4 PageID #: 670

    CERTIFICATE OF SERVICE I hereby certify that on January 21, 2014 I electronically filed the foregoing with the Clerk of Court using the ECF system which sent notification of such filing to the following: all counsel of record.

    /s/ Jennie L. Kneedler

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