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3:14-cv-01253 #53

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Doc 53 - Defendants' Reply in support of motion to dismiss (with permission to filed)
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   1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO   ADA M. CONDE-VIDAL, et al. Plaintiffs v. DR. ANA RIUS-ARMENDARIZ, et al. Defendants CIVIL NO. 14-1253 (PG) MOTION SUBMITTING REPLY TO OPPOSITION TO MOTION TO DISMISS PURSUANT TO FED.R.CIV.P. 12(B)(6) TO THE HONORABLE COURT:   COME NOW , defendants Hon. Alejandro García Padilla, Ana Rius Armendariz, Melba Acosta Febo, and Wanda Llovet Díaz, in their official capacity, without s ubmitting to this Honorable Court’s Jurisdiction, and through the undersigned attorney, respectfully allege and pray as follows: 1. On September 25 th , 2014, the appearing defendants requested the Honorable Court Leave to file Reply to Plaintiff  ’ s Opposition to Motion to Dismiss and an extension of time until this date in order to file said Reply. 2. The Court has not expressed itself as to the above mentioned request to this date. Therefore, the appearing defendants file tendered on this motion their Reply to Plaintiff  ’ s Opposition to Motion to Dismiss. 3. The appearing defendants respectfully request the Court to note the above mentioned and to grant the Leave to file the tendered Reply and Extension of time to file as requested. WHEREFORE , it is respectfully requested that this Honorable Court notes the above Case 3:14-cv-01253-PG Document 53 Filed 10/10/14 Page 1 of 2   2 mentioned and grants the Leave to file the tendered Reply and Extension of time to file as requested. I HEREBY CERTIFY that on this same date, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send an electronic copy to all attorneys to their address of record. RESPECTFULLY SUBMITTED.  In San Juan, Puerto Rico, this 10 th  day of October 2014.  CESAR MIRANDA RODRIGUEZ Secretary of Justice MARTA ELISA GONZALEZ Y. Deputy Secretary   In Charge of Civil Matters JANITZA M. GARCIA MARRERO U.S.D.C.-P.R. Bar No. 222603 Federal Litigation Division  jgarcia@justicia.pr.gov   S Idza Díaz Rivera IDZA DIAZ RIVERA U.S.D.C. NO. 223404 idiaz@justicia.pr.gov   S Maraliz Vazquez Marrero MARALIZ VAZQUEZ MARRERO U.S.D.C. NO. 225504   Federal Litigation Division Department of Justice P.O. Box 9020192 San Juan, P.R., 00902-0192. Tel. (787) 721-2900, Ext. 2606 Fax (787) 723-9188 marvazquez@justicia.pr.gov  Case 3:14-cv-01253-PG Document 53 Filed 10/10/14 Page 2 of 2   1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO   ADA M. CONDE-VIDAL, et al. Plaintiffs v. DR. ANA RIUS-ARMENDARIZ, et al. Defendants CIVIL NO. 14-1253 (PG) REPLY TO OPPOSITION TO MOTION TO DISMISS PURSUANT TO FED.R.CIV.P. 12(B)(6) TO THE HONORABLE COURT:   COME NOW , defendants Hon. Alejandro García Padilla, Ana Rius Armendariz, Melba Acosta Febo, and Wanda Llovet Díaz, in their official capacity, without s ubmitting to this Honorable Court’s Jurisdiction, and through the undersigned attorney, respectfully allege and pray as follows: INTRODUCTION On September 15 th , 2014, Plaintiffs filed a Memorandum in Opposition to Defendants’ Motion to Dismiss. Plaintiffs discuss several matters, several of which will be attended by the defendants in the instant reply. BAKER  1  IS PRECEDENT IN THIS JURISDICTION Plaintiffs, in their opposition to Defendants’ motion to dismiss, argue that “Defendants’ argument [i.e. in light of  Baker  , “neither the equal protection clause nor the due process clause are offended by statutes limiting the right to marry to a man and a woman, ”] 2  has been rejected by every 1 409 U.S. 810, 93 S.Ct. 38, 34 L.Ed.2d 65 (1972). 2 See , Plaintiffs’ Memorandum in Opposition to Defendants’ Motion to Dismiss, page 12.   Case 3:14-cv-01253-PG Document 53-1 Filed 10/10/14 Page 1 of 5   2 federal court to consider it since Windsor, because ‘ Baker was decided in 1972-42 years ago and the dark ages so far as litigation over discrimination against homosexuals in concerned. ’”  ( citing   Baskin v. Bogan, No. 14-2386, 2014 U.S. App. LEXIS 17294, at *35 (7th Cir. Sept. 4, 2014) (Posner, J.). This may be the case for the Seventh Circuit, but it is the United States Court of Appeals for the First Circuit the one that establishes precedent in the District of Puerto Rico, and not the Seventh Circuit. Decisions from the Seventh Circuit may be used to persuade the Court in this District, but not be cited as establishing precedent. Plaintiffs allege in their opposition that “although the First Circuit stated in  Massachusetts v. United States Department of Health and Human Services   that ‘  Baker    … limit[s] the arguments to ones that do not presume or rest on a constitutional right to same- sex marriage,’ 682 F.3d 1, 8 (1 st  Cir. 2012), that statement was ‘‘not essential’ to the determination of the legal questions then before the court,’ –   whether Section 3 of DOMA was unconstitutional  –   and therefore constitutes dicta. ” 3  This is not, however, the totality of the expressions of the Court in said case. A complete record is necessary to objectively apply the Court’s determination to the instant case. As such, the Court stated:   “  Baker   is precedent binding on us unless repudiated by subsequent Supreme Court precedent.  Hicks v. Miranda , 422 U.S. 332, 344, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975). Following  Baker  , “gay rights” claims prevailed in several well known decisions,  Lawrence v. Texas , 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), and  Romer v. Evans, 517 U.S. 620, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996),  but neither mandates that the Constitution requires states to permit same-sex marriages. A Supreme Court summary dismissal “prevent [s] lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided by those actions.”  Mandel v. Bradley, 432 U.S. 173, 176, 97 S.Ct. 2238, 53 L.ED.2d 199 (1977)(per curiam).  Baker   does not resolve our own case, but it does limit the arguments to ones that do not presume or rest on a constitutional right to same-sex marriage. ” Massachusetts, 682 F.3d at 8. The First Circuit is clear, the decision of the Supreme Court in Baker is binding unless it is 3 Id., at page 14-15. Case 3:14-cv-01253-PG Document 53-1 Filed 10/10/14 Page 2 of 5

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