Full opinion text
ORDER JEFFREY S. WHITE, District Judge. Now before the Court are the motion to dismiss and the motion to strike filed by Intervenor-Defendant the Bipartisan Legal Advisory Group of the United States House of Representatives (“BLAG”) and the motion for summary judgment filed by Plaintiff Karen Golinski (“Ms. Golinski”). Defendants the United States Office of Personnel Management (“the OPM”) and John Berry, its director, also filed a motion to dismiss and a response to BLAG’s motion to dismiss. These motions compel the Court to determine whether the Defense of Marriage Act (“DOMA”), 1 U.S.C. Section 7, as applied to Ms. Golinski, violates the United States Constitution by refusing to recognize lawful marriages in the application of laws governing benefits for federal employees. Having considered the parties’ papers, relevant legal authority, and the record in this case, the Court HEREBY DENIES BLAG’s motion to dismiss; DENIES as moot BLAG’s motion to strike; GRANTS Ms. Golinski’s motion for summary judgment; and GRANTS the OPM’s motion to dismiss. BACKGROUND The pertinent facts are not in dispute. Ms. Golinski is a staff attorney in the Motions Unit of the Office of Staff Attorneys in the United States Court of Appeals for the Ninth Circuit. (Second Amended Complaint (“SAC”) at ¶ 18.) Ms. Golinski has been partners with Amy Cunninghis (“Ms. Cunninghis”) for over twenty years. They registered as domestic partners with the City and County of San Francisco in 1995, and with the State of California in 2003. (Id. at ¶¶ 15-17.) On August 21, 2008, they were legally married under the laws of the State of California. (Id. at ¶ 17.) Shortly after they married, Ms. Golinski sought to enroll Ms. Cunninghis in her existing family coverage health insurance plan, Blue Cross and Blue Shield Service Benefit Plan, which she purchases through her employer and which already covers the couple’s adopted minor child. (Id. at ¶¶ 19, 22.) The Administrative Office of the United States Courts (“AO”) refused to process her request on the basis that Ms. Golinski and her spouse are both women. (Id. at ¶ 23.) Finding that she could not secure comparable health insurance coverage, on October 2, 2008, Ms. Golinski filed a complaint under the Ninth Circuit’s Employment Dispute Resolution (“EDR”) Plan, and contended that the refiisal to grant her health benefits was a violation of the Plan’s nondiscrimination provision. (Id. at ¶48.) The EDR Plan specifically prohibits employment discrimination based on, among other things, sex or sexual orientation. (Id. at ¶ 47.) By orders dated November 24, 2008 and January 13, 2009, Chief Judge Alex Kozinski, sitting in his administrative capacity as arbiter of the Judicial Council, found that Ms. Golinski had suffered discrimination under the Court’s EDR Plan and ordered the AO to process her health benefit election forms. (Id., Exs. A, B.) Chief Judge Kozinski found that the denial of health benefits was based solely on the grounds of sex and sexual orientation, in direct violation of the EDR Plan’s non-discrimination provision covering Ninth Circuit employees. (Id., Ex. B at 1-2.) Chief Judge Kozinski found that, regardless of the language in DOMA, the OPM had the discretion to extend health benefits to Ms. Golinski’s same-sex spouse by interpreting the terms “family members” and “member of the family” to set a floor, not a ceiling, to coverage eligibility. (Id. at 2-3.) Chief Judge Kozinski ordered the AO “to submit Karen Golinski’s Health Benefits Election form 2089 ... to the appropriate insurance earner. Any future health benefit forms are also to be processed without regard to the sex of the listed spouse.” (Id., Ex. B at 7.) The AO complied, but the OPM instructed Ms. Golinski’s insurance carrier not to comply with the Ninth Circuit Judicial Council’s remedial order. The OPM directed the AO and the Blue Cross and Blue Shield Service Benefit Plan not to process Ms. Golinski’s request on the basis that federal law, specifically Section 3 of DOMA, defines spouse as a member of the opposite sex and, accordingly, proscribes the enrollment of Ms. Golinski’s same-sex spouse in her health benefits program. In response, on November 19, 2009, Chief Judge Kozinski issued another order addressing the OPM’s conduct. The Chief Judge, again sitting as an administrator, held that he had the authority, under both the Ninth Circuit’s EDR Plan and the separation of powers doctrine, to interpret the laws applicable to judicial employees in a- manner that would displace “any contrary interpretation by an agency or an officer of the Executive.” (Id., Ex. C at 14-15.) Chief Judge Kozinski held that allowing the OPM to interfere with his orders would be tantamount to permitting it to exercise “dominance over logistics to destroy [the Judiciary’s] autonomy.” (Id. at 11.) The Chief Judge further held that “[ojrdering enrollment is proper and within my jurisdiction because Congress intended [the EDR] tribunal to be the sole forum for adjudicating complaints of workplace discrimination by employees of the Judiciary. With that responsibility must come power equal to the task.” (Id. at 9.) Chief Judge Kozinski granted Ms. Golinski both back pay and prospective relief. The injunctive relief required that the OPM “rescind its guidance or directive to the Blue Cross and Blue Shield Service Benefit plan and any other plan that Ms. Golinski’s wife is not eligible to be enrolled as her spouse under the terms of the Federal Employees Health Benefits Program because of her sex or sexual orientation, or that the plans would violate their contracts with the OPM by enrolling Ms. Golinski’s wife as a beneficiary” and “[e]ease at once its interference with the jurisdiction of this tribunal. Specifically, OPM shall not advise Ms. Golinski’s health plan, the Blue Cross and Blue Shield Service Benefit Plan, that providing coverage for Ms. Golinski’s wife violates DOMA or any other federal law. Nor shall OPM interfere in any way with the delivery of health benefits to Ms. Golinski’s wife on the basis of her sex or sexual orientation.” (Id. at 15-16 (emphasis in original).) The Chief Judge, in his order dated November 19, 2009, also invited the OPM to “appeal so much of this order as concerns it using the procedures outlines in the [EDR] plan.” (Id. at 16.) In response, the OPM did not appeal the order, but instead issued a press release indicating that it was under no obligation to comply with the administrative order and, although in favor of its repeal, indicated that the Executive agency was tasked with enforcing DOMA, which prohibits same-sex spouses of federal employees from enrolling in the federal health benefits program. (Id., Ex. F.) In his final administrative order, dated December 22, 2009, Chief Judge Kozinski stated that the time for appeal had expired, thus rendering his prior orders in the matter “final and preclusive on all issues decided therein.” (Id., Ex. D.) He further authorized Ms. Golinski to pursue any action she deemed fit against the OPM, including filing a mandamus action in the district court. (Id.) On January 20, 2010, Ms. Golinski filed a mandamus action before this Court, seeking to have the OPM rescind its guidance to Blue Cross and Blue Shield Service Benefit Plan to deny Ms. Golinski’s wife benefits as precluded by DOMA and to comply with Chief Judge Kozinski’s prior orders in her administrative claim. On January 26, 2010, Ms. Golinski moved for a preliminary injunction seeking compliance with Chief Judge Kozinski’s order dated November 19, 2009, requiring that the OPM: (1) “rescind its guidance or directive to the Blue Cross and Blue Shield Service Benefit Plan,” and (2) “cease at once its interference with the jurisdiction of this tribunal” and “not advise Ms. Golinski’s health plan, the Blue Cross and Blue Shield Service Benefit plan, that providing coverage for Ms. Golinski’s wife violates DOMA or any other federal law.” (Id. at Ex. C, 15-16.) On May 10, 2010, the OPM moved to dismiss the First Amended Complaint on the basis that this Court lacked jurisdiction to grant mandamus relief under these peculiar procedural circumstances. While those motions were pending and after the parties submitted supplemental briefing on the issue of the constitutionality of DOMA, on February 23, 2011, at the direction of President Obama, Attorney General Eric Holder announced that the Justice Department would cease its legal defense of Section 3 of DOMA. Although it determined that the statute was unconstitutional and resolved not to continue to defend DOMA in pending court cases, the Justice Department indicated that it did intend to continue to enforce the law unless it was either repealed by Congress or the courts rendered a final judgment striking it down. (See Plaintiffs Notice of Supplemental Authority (“NSA”) dated February 23, 2011, Ex. 2.) On March 16, 2011, 781 F.Supp.2d 967 (N.D.Cal.2011), the Court granted the motion to dismiss on the basis that it lacked jurisdiction to issue mandamus relief. Finding that amendment would not necessarily be futile, the Court dismissed the matter with leave to amend. On April 14, 2011, Ms. Golinski filed her Second Amended Complaint in which she directly challenges the discrimination against her as a lesbian married to someone of the same sex. (SAC at ¶ 1.) In her amended complaint, Ms. Golinski alleges an action for declaratory and injunctive relief pursuant to 28 U.S.C. Sections 2201-2202 and Federal Rule of Civil Procedure 57 and for review of an agency action pursuant to 5 U.S.C. Sections 701-706. (Id. at ¶ 7.) By her amended complaint, Ms. Golinski seeks a determination that Section 3 of DOMA, 1 U.S.C. Section 7, as applied to her, violates the United States Constitution by refusing to recognize lawful marriages for the purposes of application of the laws governing benefits for federal employees. (Id.) Ms. Golinski alleges that as a result of the violation of the Constitution, she has been denied, and will continue to be denied, legal protections and benefits under federal law that would be available to her if she were a heterosexual with a opposite-sex spouse. (Id.) The majority of a five-member committee in Congress voted to defend DOMA and, on May 4, 2011, BLAG sought to intervene in this matter. On June 3, 2011, this Court issued an order granting BLAG’s unopposed motion to intervene as a party-defendant for the limited purpose of defending the constitutionality of Section 3 of DOMA. On June 3, 2011, BLAG moved to dismiss the Second Amended Complaint on the basis that Ms. Golinski fails to state a claim upon which relief may be granted because, as a matter of law, Section 3 of DOMA does not violate her rights under the equal protection component of the Due Process Clause of the Fifth Amendment. On the same date, the OPM moved to dismiss Ms. Golinski’s claim as set forth in the Second Amended Complaint only insofar as any claims could reasonably be construed to assert a statutory claim as to the language of the Federal Health Benefits Act of 1959. On July 1, 2011, Ms. Golinski moved for summary judgment. On July 15, 2011, BLAG moved to strike extrinsic materials from the record on Ms. Golinski’s opposition to the motion to dismiss. The Court heard oral argument on the motions on December 16, 2011. The Court shall address additional facts as necessary in the remainder of this order. ANALYSIS A. Legal Standards. 1. Motion to Dismiss. A motion to dismiss is proper under Federal Rule of Civil Procedure 12(b)(6) where the pleadings fail to state a claim upon which relief can be granted. The Court’s “inquiry is limited to the allegations in the complaint, which are accepted as true and construed in the light most favorable to the plaintiff.” Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 588 (9th Cir.2008). Federal Rule of Civil Procedure 8(a) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief.” Even under Rule 8(a)’s liberal pleading standard, “a plaintiffs obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citing Papasan v. Attain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)). Pursuant to Twombly, a plaintiff must not merely allege conduct that is conceivable but must instead allege “enough facts to state a claim to relief that is plausible on its face.” Id. at 570, 127 S.Ct. 1955. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). “The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. ... When a complaint pleads facts that are merely consistent with a defendant’s liability, it stops short of the line between possibility and plausibility of entitlement to relief.” Id (quoting Twombly, 550 U.S. at 556-57, 127 S.Ct. 1955) (internal quotation marks omitted). If the allegations are insufficient to state a claim, a court should grant leave to amend, unless amendment would be futile. See, e.g., Reddy v. Litton Industries, Inc., 912 F.2d 291, 296 (9th Cir.1990); Cook, Perkiss and Liehe, Inc. v. Northern California Collection Service, Inc., 911 F.2d 242, 246-47 (9th Cir.1990). As a general rule, “a district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion.” Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir.1994), overruled on other grounds, Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir.2002) (citation omitted). The Court may consider the facts alleged in the complaint, documents attached to the complaint, documents relied upon but not attached to the complaint, when the authenticity of those documents is not questioned, and other matters of which the Court can take judicial notice. Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 990 (9th Cir.2009). Documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered in ruling on a Rule 12(b)(6) motion to dismiss. Such consideration does not convert the motion to dismiss into a motion for summary judgment. See United States v. Ritchie, 342 F.3d 903, 908 (9th Cir.2003); Branch, 14 F.3d at 454. 2. Motion for Summary Judgment. A motion for summary judgment is guided by a different standard. Summary judgment is appropriate when the record demonstrates “that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). An issue is “genuine” if there is sufficient evidence for a reasonable fact finder to find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “[A]t the summary judgment stage the judge’s function is not ... to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Id. at 249, 106 S.Ct. 2505. A fact is “material” if it may affect the outcome of the case. Id at 248, 106 S.Ct. 2505. The party moving for summary judgment bears the initial responsibility of identifying those portions of the record which demonstrate the absence of a genuine issue of a material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In the absence of such facts, “the moving party is entitled to a judgment as a matter of law.” Celotex, 477 U.S. at 323, 106 S.Ct. 2548. Once the moving party meets this initial burden, the non-moving party “may not rest upon the mere allegations or denials of the adverse party’s pleading, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e). If the non-moving party fails to make this showing, the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. B. Defense of Marriage Act. This action presents a challenge to the constitutionality of Section 3 of DOMA as applied to Ms. Golinski, a lesbian woman married under California law, who is unable to secure federal health benefits for her same-sex spouse. Specifically, Ms. Golinski alleges that, by operation of Section 3 of DOMA, she has been denied certain marriage-based federal benefits that are available to similarly-situated opposite-sex couples, in violation of her rights to equal protection and due process as secured by the Due Process Clause of the Fifth Amendment. In 1996, Congress enacted and President Clinton signed DOMA into law. Section 3 of DOMA, the only provision at issue in this matter, defines the terms “marriage” and “spouse” for purposes of federal law. Section 3 provides: In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife. 1 U.S.C. § 7. In large part, the enactment of DOMA can be understood as a direct legislative response to Baehr v. Lewin, a 1993 decision issued by the Hawaii Supreme Court, which indicated that same-sex couples may be entitled to marry under that state’s constitution. 74 Haw. 530, 852 P.2d 44 (1993). The decision raised the possibility that, for the first time, same-sex couples could begin the process of obtaining state-sanctioned marriage licenses. In debating the provisions of DOMA, the House referenced the Baehr decision as the beginning of an “orchestrated assault being waged against traditional heterosexual marriage” and expressed concern that the development “threaten[ed] to have very real consequences ... on federal law.” H.R.Rep. No. 104-664 at 2-3 (1996), reprinted in 1996 U.S.C.C.A.N. 2905, 2906-07 (“H. Rep.” or “House Report”). More specifically, the House 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.” Id. at 10. Although a later amendment to the Hawaii constitution withheld permitting same-sex marriage in the state, Congress, explicitly in reaction to the impending Hawaii decision, sought a means both (1) to “reserve[] each State’s ability to decide” what should legally constitute a valid marriage under its own state laws, and (2) to “lay[ ] down clear rules” regarding what constitutes a marriage for purposes of federal law. Id. at 2. In Section 2 of DOMA, Congress, by virtue of the express grant of authority under the second sentence of the Full Faith and Credit Clause, permitted a state to decline to give effect to the laws of other states respecting same-sex marriage. In enacting Section 3 of DOMA, the House Report explained that the statute codifies the definition of marriage set forth in “the standard law dictionary,” for purposes of federal law. Id. at 29 (citing Black’s Law Dictionary 972 (6th ed. 1990)). The legislative history reveals that Congress acknowledged the constraints imposed by federalism on the determination of who may marry, which has always been uniquely the province of state law. Nonetheless, Congress asserted that it was not “supportive of (or even indifferent to) the notion of same-sex marriage,” and it embraced DOMA as a step toward furthering Congress’ interests in “defending] the institution of traditional heterosexual marriage.” Id. at 12. “Although DOMA drastically amended the eligibility criteria for a vast number of different federal benefits, rights, and privileges that depend upon marital status, the relevant committees did not engage in a meaningful examination of the scope or effect of the law.” Gill v. Office of Personnel Management, 699 F.Supp.2d 374, 379 (D.Mass.2010). Although drastically altering the benefits structure based on state definitions of marriage and the federalist balance in the area of domestic relations, Congress did not hear testimony from agency heads about the effect of DOMA on federal programs, or from historians, economists, or specialists in family or child welfare. Id. It is clear and undisputed that the federal health benefits Ms. Golinski seeks in trying to add her wife as a beneficiary under her health benefits plan falls under the reach of DOMA. The Federal Employees Health Benefits Program (“FEHB”) is a comprehensive program providing health insurance for federal civilian employees and their family members. 5 U.S.C. § 8905. The OPM administers the FEHB and negotiates contracts for coverage with potential carriers and sets the premiums for each plan. Id., §§ 8902, 8903, 8906. A federal employee enrolled in the FEHB chooses a carrier and plan and may determine whether to enroll for an individual plan, named “self only,” or for “self and family” coverage which, under the OPM’s regulations, “includes all family members who are eligible to be covered by the enrollment.” 5 C.F.R. § 890.302(a)(1). Under the FEHB, a “member of family” is defined as either “the spouse of an employee ... [or] an unmarried dependent child under 22 years of age.” 5 U.S.C. § 8901(5). An employee enrolled under an individual plan may change to family coverage by submitting documentation to the employing office during the annual open season period or within sixty days of a change in family status, such as change in marital status. Id., § 8905(f); 5 C.F.R. §§ 890.301(f), (g). Within sixty days of her marriage, Ms. Golinski sought to enroll her wife as a beneficiary of the family health plan. The OPM found Ms. Cunninghis was ineligible to qualify as a member of the family because, under DOMA, she did not qualify as a spouse of an employee. The question before the Court is whether Section 3 of DOMA, as applied to Ms. Golinski, violates constitutional principles of equal protection. C. Equal Protection Analysis and Standard of Review. The “Equal Protection Clause of the Fourteenth Amendment commands that no State shall deny to any person within its jurisdiction the equal protection of the laws, which is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (internal citations omitted). Although the Fifth Amendment to the United States Constitution does not contain an Equal Protection Clause, the Fifth Amendment’s Due Process Clause includes an equal protection component. See Bolling v. Sharpe, 347 U.S. 497, 499-500, 74 S.Ct. 693, 98 L.Ed. 884 (1954); see also Buckley v. Valeo, 424 U.S. 1, 93, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (“Equal protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment.”). “[T]he Constitution ‘neither knows nor tolerates classes among citizens.’ ” Romer v. Evans, 517 U.S. 620, 623, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996) (quoting Plessy v. Ferguson, 163 U.S. 537, 559, 16 S.Ct. 1138, 41 L.Ed. 256 (1896) (Harlan, J., dissenting)). This principle embodies a commitment to neutrality where the rights of individual persons are at stake. Dragovich v. United States Department of the Treasury, 764 F.Supp.2d 1178, 1188 (N.D.Cal.2011) (citing Romer, 517 U.S. at 623, 116 S.Ct. 1620.) It is because of this commitment to neutrality that legislative provisions which arbitrarily or irrationally create discrete classes cannot withstand constitutional scrutiny. Romer, 517 U.S. at 623, 116 S.Ct. 1620. “Equal protection of the laws is not achieved through indiscriminate imposition of inequalities.” Sweatt v. Painter, 339 U.S. 629, 635, 70 S.Ct. 848, 94 L.Ed. 1114 (1950) (quoting Shelley v. Kraemer, 334 U.S. 1, 22, 68 S.Ct. 836, 92 L.Ed. 1161 (1948)). “The guaranty of ‘equal protection of the laws is a pledge of the protection of equal laws.’ ” Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942) (quoting Yick Wo v. Hopkins, 118 U.S. 356, 369, 6 S.Ct. 1064, 30 L.Ed. 220 (1886)). However, courts must balance this mandate with the “practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons.” Romer, 517 U.S. at 631, 116 S.Ct. 1620 (citations omitted). The equal protection guarantee preserves a measure of power to the state and the federal government to enact legislation that classifies certain groups. Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 271-72, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979). In an attempt to reconcile the promise of equal protection with the reality of lawmaking, courts apply the most searching constitutional scrutiny to those laws that burden a fundamental right or target a suspect class, such as those based on race, national origin, sex or religion. Romer, 517 U.S. at 631, 116 S.Ct. 1620. To these groups of protected classifications, subject to a heightened scrutiny, the government is required to demonstrate that the classification is substantially related to an important governmental objective. See Clark v. Jeter, 486 U.S. 456, 461, 108 S.Ct. 1910, 100 L.Ed.2d 465 (1988). Laws that do not burden a protected class or infringe on a constitutionally protected fundamental right are subject to rational basis review. Romer, 517 U.S. at 631, 116 S.Ct. 1620. Under the rational basis review, a law must be rationally related to the furtherance of a legitimate governmental interest. Id. (citing Heller v. Doe by Doe, 509 U.S. 312, 319-320, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993)). In resolving an equal protection challenge, the Court “must first determine what classification has been created” by the legislation. Aleman v. Glickman, 217 F.3d 1191, 1195 (9th Cir.2000); see also Lazy Y Ranch, 546 F.3d at 589. The plaintiff must show that the “law is applied in a discriminatory manner or imposes different burdens on different classes of people.” Lazy Y Ranch, 546 F.3d at 589 (quoting Freeman v. City of Santa Ana, 68 F.3d 1180, 1187 (9th Cir.1995)). The Court must then ascertain the appropriate level of scrutiny to employ. In re Kandu, 315 B.R. 123, 142 (W.D.Wash.2004). 1. Level of Scrutiny. Here, DOMA makes distinctions between legally married couples, by granting benefits to opposite-sex married couples but denying benefits to same-sex married couples. Accordingly, DOMA treats gay and lesbian individuals differently on the basis of their sexual orientation. In order to determine whether sexual orientation is considered a suspect or quasi-suspect class entitled to heightened scrutiny, the Court must look at various factors. The Supreme Court has considered: (1) the history of invidious discrimination against the class burdened by the legislation; (2) whether the characteristics that distinguish the class indicate a typical class member’s ability to contribute to society; (3) whether the distinguishing characteristics are “immutable” or beyond the class members’ control; and (4) the political power of the subject class. See Varnum v. Brien, 763 N.W.2d 862, 887-88 (Iowa 2009) (collecting cases). No single factor for determining elevated scrutiny is dispositive. See Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 321, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976). The presence of any of the factors is a signal that the particular classification is “more likely than others to reflect deep-seated prejudice rather than legislative rationality in pursuit of some legitimate objective,” thus requiring heightened scrutiny. Plyler v. Doe, 457 U.S. 202, 216 n. 14, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982). The Supreme Court has placed far greater weight on two factors: whether the group has been the subject of long-standing and invidious discrimination and whether the group’s distinguishing characteristic bears no relation to the ability of the group members to perform or function in society. In circumstances in which a group has been subject to such discrimination and its distinguishing characteristic does not bear any relation to such ability, the court inevitably has employed heightened scrutiny in reviewing statutory classifications targeting those groups. Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 167-68, 957 A.2d 407 (2008). 2. Distinguishing High Tech Gays Finding on Standard of Review. Before the Court may assess the various factors that apply to determine the appropriate level of scrutiny to apply in this matter, the Court must address the holding in High Tech Gays v. Defense Industrial Security Clearance Office, which addresses the standard of review for classifications based on sexual orientation. 895 F.2d 563, 571 (9th Cir.1990). In High Tech Gays, decided before the Supreme Court revised much of the underlying legal preconceptions upon which this case rests, the Ninth Circuit determined that the classification of homosexuals lacks the indicia of a suspect or quasi-suspect category. Accordingly, the Ninth Circuit held that the government need only come forth with a rational basis to sustain its classifications against the gay and lesbian minority. Id. However, the foundations of the Ninth Circuit’s decision in High Tech Gays have sustained serious erosion by virtue of more recent decisions by the Supreme Court. When the premise for a case’s holding has been weakened, the precedential import of the case is subject to question. District courts are not governed by earlier appellate precedent that has been “undercut by higher authority to such an extent that it has been effectively overruled by such higher authority.” Miller v. Gammie, 335 F.3d 889, 899 (9th Cir.2003). The linchpin of the reasoning in High Tech Gays was the precedent set by the Supreme Court in Bowers v. Hardwick, 478 U.S. 186, 190, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986), which upheld the criminalization of private consensual homosexual conduct. In High Tech Gays, the Ninth Circuit concluded that, based on the holding in Bowers, “because homosexual conduct can ... be criminalized, homosexuals cannot constitute a suspect or quasi-suspect class entitled to greater than rational basis review for equal protection purposes.” High Tech Gays, 895 F.2d at 571. Pursuant to Supreme Court precedent in Bowers, the Ninth Circuit agreed that “it cannot logically be asserted that discrimination against homosexuals is constitutionally infirm.” Id., at 571 n. 6 (quoting Woodward v. United States, 871 F.2d 1068, 1076 (Fed.Cir.1989)). The court concluded that, under the holding of Bowers, it would be anomalous to define the conduct of members of a class as criminal and also find that, as a class, they were deserving of strict or heightened scrutiny under the Equal Protection Clause. See id. (citing Padula v. Webster, 822 F.2d 97, 103 (D.C.Cir.1987)). However, since the decision in High Tech Gays, the Supreme Court has overruled Bowers, renounced its fundamental premise, and found that “Bowers was not correct when it was decided, and it is not correct today.” Lawrence v. Texas, 539 U.S. 558, 578, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003). The Lawrence Court found that majority’s moral condemnation of the intimate practices of homosexual partners does not justify, criminal prohibition and found those private consensual practices are safeguarded by the liberty protections afforded by the Due Process Clause of the Fourteenth Amendment. Id. at 574-75, 123 S.Ct. 2472. Therefore, the reasoning in High Tech Gays, that laws discriminating against gay men and lesbians are not entitled to heightened scrutiny because homosexual conduct may be legitimately criminalized, cannot stand post -Lawrence. In addition, the court in High Tech Gays, in performing the analysis of the issue of whether the legislature’s classification based on homosexuality calls for heightened scrutiny, relied on the mistaken assumption that sexual orientation is merely “behavioral,” rather than the sort of deeply rooted, immutable characteristic that warrants heightened protection from discrimination. See High Tech Gays, 895 F.2d at 573-74. The court found that “[hjomosexuality is not an immutable characteristic; it is behavioral and hence fundamentally different from traits such as race, gender, or alienage, which define already existing suspect and quasi-suspect classes. The behavior of such already recognized classes is irrelevant to their identification.” Id. (internal citations omitted). The Supreme Court has since rejected this artificial distinction, noting that its more recent precedent “have declined to distinguish between status and conduct in th[e] context” of sexual orientation. See Christian Legal Society v. Martinez, — U.S. -, 130 S.Ct. 2971, 2990, 177 L.Ed.2d 838 (2010). In Lawrence, the Court noted that “[w]hen homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination.” 539 U.S. at 575, 123 S.Ct. 2472 (emphasis added); id. at 583, 123 S.Ct. 2472 (O’Connor, J., concurring in judgment) (“While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, [the] law is targeted at more than conduct. It is instead directed toward gay persons as a class.”). Accordingly, the analysis of the Ninth Circuit in High Tech Gays on the appropriateness of applying heightened scrutiny to gay men and lesbians because their defining characteristic is immutable has been severely undermined by more recent and overriding precedent. The Court finds that the outdated holding in High Tech Gays, subjecting gay men and lesbians to rational basis review, is no longer a binding precedent. See Miller, 335 F.3d at 900 (finding that where an intervening decision of a higher court is clearly irreconcilable with a Ninth Circuit decision, “district courts should consider themselves bound by the intervening higher authority and reject the prior opinion of [the Ninth Circuit] as having been effectively overruled.”). 3. The Question of Level of Scrutiny is Still Open. The Supreme Court and the Ninth Circuit have yet to issue binding rulings as to whether classifications based on sexual orientation are suspect (or quasi-suspect). See Romer, 517 U.S. at 620, 632-33, 116 S.Ct. 1620 (finding that it was unnecessary to look beyond rational basis review because the state’s attempt to strip gay people of all anti-discrimination protections was “a denial of equal protection in the most literal sense” and because it “confound[ed] and defie[d]” “rational basis review.”); see also, e.g., Diaz v. Brewer, 656 F.3d 1008, 1012 (9th Cir.2011) (“We do not need to decide whether heightened scrutiny might be required.”); In re Levenson, 587 F.3d at 931 (finding that although it is “likely that some form of heightened constitutional scrutiny applies ... [, because] the denial of benefits here cannot survive even rational basis review, the least searching form of constitutional scrutiny ... it is not necessary to determine whether or which form of heightened scrutiny is applicable to this claim.”); Perry II, 671 F.3d at 1081-82, 2012 WL 372713, at *17 (finding that, as in Romer, the court need not apply heightened scrutiny where the proposed legislation fails rational basis scrutiny); Dragovich, 764 F.Supp.2d at 1189 (“Because the Court finds that Plaintiffs state a claim under the rational basis standard, the question of whether Plaintiffs are members of a protected class need not be resolved here.”). The majority of the Supreme Court in Lawrence, although it declared unconstitutional the laws infringing on the substantive liberty shared by gay people to engage in sexual intimacy, did not directly address what standard of review applies to the classification of gay and lesbian individuals. Lawrence, 539 U.S. at 558, 123 S.Ct. 2472. And the Ninth Circuit in Witt v. Department of Air Force merely found, in the context of military policy where judicial deference “is at its apogee,” that the military’s policy of “Don’t Ask Don’t Tell” would fail even rational basis review. 527 F.3d 806, 821 (9th Cir.2008). Because Lawrence overturned Bowers and in light of the lack of precedential value of High Tech Gays, no federal appellate court has meaningfully examined the appropriate level of scrutiny to apply to gay men and lesbians. Therefore, the Court finds the question of what level of scrutiny applies to classifications based on sexual orientation is still open. 4. Heightened Scrutiny Should Apply- The Court undertakes to analyze the factors required to demonstrate whether a particular class is entitled to suspect or quasi-suspect status and therefore deserving of heightened scrutiny. a. History of discrimination against gay men and lesbians. The first factor courts consider is whether the class has suffered a history of discrimination. There is no dispute in the record that lesbians and gay men have experienced a long history of discrimination. {See Declaration of George Chauncey at ¶¶ 6-103; OPM Opp. Br. at 6-13.) There is also no dispute that courts have found that gay men and lesbians have experienced a history of discrimination. See, e.g., High Tech Gays, 895 F.2d at 573 (acknowledging that “homosexuals have suffered a history of discrimination”); Witt, 527 F.3d at 824-25 (noting that homosexuals have “experienced a history of purposeful unequal treatment”); Perry v. Proposition 8 Official Proponents, 587 F.3d 947, 954 (9th Cir.2009) (addressing the difficulty in denying that gay men and lesbians have experienced discrimination in the past in light of the Ninth Circuit’s ruling in High Tech Gays); Perry, 704 F.Supp.2d at 981-82 (acknowledging extensive evidence of public and private discrimination against gay men and lesbians in California and throughout the United States); see also In re Balas, 449 B.R. 567, 576 (Bankr.C.D.Cal.2011) (same). b. Ability to contribute to society. Similarly, there is no dispute in the record or the law that sexual orientation has no relevance to a person’s ability to contribute to society. See Watkins v. U.S. Army, 875 F.2d 699, 725 (9th Cir.1989) (“Sexual orientation plainly has no relevance to a person’s ability to perform or contribute to society.”) (internal quotation marks omitted); Perry, 704 F.Supp.2d at 1002 (concluding that “by every available metric, opposite-sex couples are not better than their same-sex counterparts; instead, as partners, parents and citizens, opposite-sex couples and same-sex couples are equal.”). c. Defining or immutable characteristics. Another consideration courts find relevant in determining whether statutory provisions pertaining to a particular group are subject to heightened scrutiny includes whether the characteristic that defines the members of the class as a discrete group is immutable or otherwise not within the members’ control. See Lyng v. Castillo, 477 U.S. 635, 638, 106 S.Ct. 2727, 91 L.Ed.2d 527 (1986). Ms. Golinski presents evidence that the characteristic of sexual orientation is immutable or highly resistant to change. (See Declaration of Lisa Diamond at ¶¶ 10, 13; Declaration of Letitia Anne Peplau at ¶¶ 21, 26; Rita Lin Reply Declaration (“Lin Reply Deck”), Ex. G.) Further, the consensus in the scientific community is that sexual orientation is an immutable characteristic. See, e.g., G.M. Herek, et al. Demographic, Psychological, and Social Characteristics of Self-Identified Lesbian, Gay, and Bisexual Adults, 7, 176-200 (2010) (noting that in a national survey, 95 percent of gay men and 83 percent of lesbian women reported that they experienced “no choice at all” or “very little choice” about their sexual orientation); see also Perry, 704 F.Supp.2d at 966 (“No credible evidence supports a finding that an individual may, through conscious decision, therapeutic intervention or any other method, change his or her sexual orientation.”) BLAG presents evidence demonstrating that there is some fluidity on the continuum of sexuality for some individuals who identify themselves as gay or lesbian. (See Declaration of Conor B. Dugan (“Dugan Deck”), Ex. B at 36:14-38, Ex. 4, Ex. E at 320.) The evidence indicates that a very small minority of the gay and lesbian population may experience a small amount of choice in their sexuality. (Id.) However, the vast majority of those who self-reported as gay or lesbian did not experience attraction to the opposite sex at any time. (See Further Declaration of Letitia Anne Peplau at ¶ 6 (“data show that only 1/2 of 1% of the male participants and 1.3% of the female participants shifted from only opposite sex attraction to major attraction to the same sex or vice versa.”)). However, regardless of the evidence that a tiny percentage of gay men or lesbians may experience some flexibility along the continuum of their sexuality or the scientific consensus that sexual orientation is unchangeable, the Court finds persuasive the holding in the Ninth Circuit that sexual orientation is recognized as a defining and immutable characteristic because it is so fundamental to one’s identity. “Sexual orientation and sexual identity are immutable; they are so fundamental to one’s identity that a person should not be required to abandon them.” Hernandez-Montiel v. Immigration and Naturalization Service, 225 F.3d 1084, 1093 (9th Cir.2000), overruled in part on other grounds by Thomas v. Gonzales, 409 F.3d 1177 (9th Cir.2005); see also Karouni v. Gonzales, 399 F.3d 1163, 1173 (9th Cir.2005) (agreeing with Hernandez-Montiel and finding that homosexuality is “a fundamental aspect of ... human identity”); Watkins, 875 F.2d at 726 (Norris, J., concurring) (finding that the prong of suspectness inquiry is satisfied when the identifying trait is “so central to a person’s identity that it would be abhorrent for government to penalize a person for refusing to change [it]”); In re Marriage Cases, 43 Cal.4th 757, 842, 76 Cal.Rptr.3d 683, 183 P.3d 384 (2008) (“Because a person’s sexual orientation is so integral an aspect of one’s identity, it is not appropriate to require a person to repudiate or change his or her sexual orientation in order to avoid discriminatory treatment.”) The Court finds that a person’s sexual orientation is so fundamental to one’s identity that a person should not be required to abandon it. Therefore, this factor weighs in favor of the application of heightened scrutiny. d. Minority status and political powerlessness. The final consideration employed by courts to determine whether a subject group deserves heightened constitutional scrutiny is whether the subject group is “a minority or politically powerless.” Bowen v. Gilliard, 483 U.S. 587, 602, 107 S.Ct. 3008, 97 L.Ed.2d 485 (1987); see also San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 28, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973) (concluding that a class comprising poor families exhibits none of the “traditional indicia of suspectness” because class is not “saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.”) This factor examines relative political power and seeks to answer the question whether the “discrimination is unlikely to be soon rectified by legislative means.” City of Cleburne, 473 U.S. at 440, 105 S.Ct. 3249. There is no dispute in the record that gay men and lesbians are a minority of the population in the United States. (See Dugan Deck, Ex. A at 13:12-14, Ex. B at 19:2-7.) The only issue is whether the minority is politically vulnerable or lacking-in power. The Court has reviewed the evidence submitted by the parties for consideration on this factor. BLAG argues that the current Administration’s reversal of position with regard to defending DOMA in various courts nationwide is evidence that gay and lesbian individuals have achieved political power. BLAG contends that the decision followéd President Obama’s receipt of a letter from the Human Rights Campaign seeking to change the Administration’s position. (BLAG Opp. Br. at 12.) However, this contention is not supported by the evidence in the record. First, this letter was sent nearly two years prior to the announcement of the Administration’s current opinion. (Lin Reply Deck, Ex. H at 166:16-167:13.) Second, the Department of Justice functions under an independent obligation to assess the constitutionality of a statute it has been tasked to defend. By its own terms, the announcement by the Department of Justice was based not on a political calculation, but rather was an independent assessment of the constitutionality of DOMA. (See NSA, Ex. 1 at 1-2.) The contention that a two-year-old letter from a gay rights advocacy group was the pivotal consideration in the Administration’s reassessment of the law or that it demonstrates that gay men and lesbians have political power is speculative at best. BLAG also argues that a “spate of recent news stories only confirms the conclusion that homosexuals are far from politically powerless.” (BLAG Opp. Br. at 12.) BLAG lists the nomination of four openly-gay judges, the laws in several states legalizing gay marriage, and the campaign against Proposition 8 in California which garnered significant funding from proponents of same-sex marriage. (Id. at 12-15.) The recent articles BLAG cites are exceptions and not the rule. While President Obama nominated four openly-gay judges, there are literally hundreds of federal judges nationwide. Only a handful of states have successfully passed legislation legalizing same-sex marriage, and only a few more have been required to afford equal marital rights to gay and lesbian individuals through judicial decisions. Thirty states have passed constitutional amendments banning same-sex marriage. (See OPM Opp. Br. at 15, citing National Conference of State Legislatures, Same-Sex Marriage, Civil Unions and Domestic Partnerships, available at http://www.ncsl.org/default.aspx?tabid-J64S0 (last updated February 13, 2012)). In contrast, when the Supreme Court ruled in Loving, interracial marriage was legal in thirty-four states. See Loving, 388 U.S. at 6, 87 S.Ct. 1817. Moreover, there is no federal anti-discrimination legislation and no protection in most states from sexual orientation discrimination. (See OPM Opp. Br. at 6-12.) Finally, while the campaign against Proposition 8 may have raised significant funds, the majority of Californians still voted to alter the state constitution to strip gay and lesbian individuals of their rights. Placed in context, BLAG’s evidence does not create a question of fact. Despite the modest successes in remediating existing discrimination, the record demonstrates that gay men and lesbians continue to suffer discrimination “unlikely to be rectified by legislative means.” City of Cleburne, 473 U.S. at 440, 105 S.Ct. 3249. Even BLAG, in similar litigation, has admitted that “gay men and lesbians often must rely on judicial decisions to secure equal rights.” (Lin Reply Decl., Exs. C and D at ¶ 32.) Ms. Golinski proffers the undisputed and extensive expert testimony of Gary Segura for the proposition that gay men and lesbians lack a meaningful degree of political power. (See Segura Deck at ¶¶ 9-85.) In sum, the basic inability to bring about an end to discrimination and pervasive prejudice, to secure desired policy outcomes and to prevent undesirable outcomes on fundamental matters that directly impact their lives, is evidence of the relative political powerlessness of gay and lesbian individuals. (Id. at ¶ 28.) Ms. Golinski also proffers the letter from the Attorney General to Congress regarding DOMA and the Department of Justice’s determination that it would no longer provide a defense of a statute which it considered to be unconstitutional. (See NSA, Ex. 2.) In the letter, the Attorney General, speaking on behalf of the Executive, notes that “the adoption of the laws like those at issue in Romer and Lawrence, the longstanding ban on gay men and lesbians in the military, and the absence of federal protection for employment discrimination on the basis of sexual orientation show the group to have limited political power and ‘ability to attract the [favorable] attention of the lawmakers.’ ” (Id. at 2, citing City of Cleburne, 473 U.S. at 445, 105 S.Ct. 3249.) The Court finds that the unequivocal evidence demonstrates that, although not completely politically powerless, the gay and lesbian community lacks meaningful political power. In 1985, in their dissent from a petition for writ of certiorari, Justices Brennan and Marshall found that “homosexuals constitute a significant and insular minority of this country’s population. Because of the immediate and severe opprobrium often manifested against homosexuals once so identified publicly, members of this group are particularly powerless to pursue them rights openly in the political arena.” Rowland v. Mad River Local School District, 470 U.S. 1009, 1014, 105 S.Ct. 1373, 84 L.Ed.2d 392 (1985). The Court agrees and finds that, as a class, gay men and lesbians are a minority and have relatively limited political power to attract the favorable attention of lawmakers. See City of Cleburne, 473 U.S. at 445, 105 S.Ct. 3249. Although this factor is not an absolute prerequisite for heightened scrutiny, the Court finds the evidence and the law support the conclusion that gay men and lesbians remain a politically vulnerable minority. See Plyler, 457 U.S. at 216 n. 14, 102 S.Ct. 2382; Murgia, 427 U.S. at 321, 96 S.Ct. 2562. Here, having analyzed the factors, the Court holds that the appropriate level of scrutiny to use when reviewing statutory classifications based on sexual orientation is heightened scrutiny. See also In re Levenson, 587 F.3d at 931 (holding that “some form of heightened constitutional scrutiny applies”); Witt, 527 F.3d at 824-25 (Canby, J., concurring in part and dissenting in part) (“classifications against homosexuals are suspect in the equal protection sense” as gay and lesbian individuals have “experienced a history of purposeful unequal treatment [and] been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities” and “they also exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group; and they are a minority.”). In short, this Court holds that gay men and lesbians are a group deserving of heightened protection against the prejudices and power of an often-antagonistic majority. See id. at 825. 5. Application of Heightened Scrutiny to Justifications Proffered for DOMA.. Under heightened scrutiny, the proponents of the statute must establish, at a minimum, that the classification is “substantially related to an important governmental objective.” Clark, 486 U.S. at 461, 108 S.Ct. 1910. Moreover, under any form of heightened scrutiny, the statute may only be defended by reference to the actual legislative bases advanced to legitimate the statute or the “actual [governmental] purpose, not rationalizations for actions in fact differently grounded.” United States v. Virginia, 518 U.S. 515, 535-36, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996). The Court notes that the “historical background of the decision” to enact legislation and the “specific sequence of events leading up to the challenged decision” may shed light on the decisionmakers’ purposes. See Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 267, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977). Here, the legislative history is replete with expressed animus toward gay men and lesbians. The House Report on DOMA reflected Congress’ “moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality.” H.R.Rep. No. 104-664 at 16, 1996 U.S.C.C.A.N. 2905, 2920 (footnote omitted). In his expression of these objectives, Henry Hyde, then-Chairman of the House Judiciary Committee, stated that “[m]ost people do not approve of homosexual conduct ... and they express their disapprobation through the law.” 142 Cong. Rec. H7480 (daily ed. July 12,1996). In the floor debate, members of Congress repeatedly expressed their disapprobation of homosexuality, calling it “immoral,” “depraved,” “unnatural,” “based on perversion,” and “an attack upon God’s principles.” 142 Cong. Rec. H7444 (daily ed. July 11, 1996) (statement of Rep. Co-burn); 142 Cong. Rec. H7486 (daily ed. July 12, 1996) (statement of Rep. Buyer); id. at H7494 (statement of Rep. Smith). Members of Congress argued that marriage by gay men and lesbians would “demean” and “trivialize” heterosexual marriage and might indeed be “the final blow to the American family.” 142 Cong. Rec. H7276 (daily ed. July 11, 1996) (statement of Rep. Largent); 142 Cong. Rec. H7495 (daily ed. July 12, 1996) (statement of Rep. Lipinski) (“Allowing for gay marriages would be the final straw, it would devaluate the love between a man and a woman and weaken us as a Nation.”). Senator Helms, in a statement prepared for the hearing, expressed his disapprobation: “[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.” 142 Cong. Rec. S 10,110 (daily ed. Sept. 10, 1996); see also 142 Cong. Rec. H7275 (daily ed. July 11, 1996) (statement of Rep. Barr) (stating that marriage is “under direct assault by the homosexual extremists all across the country.”). The House Report on the pending DOMA bill stated: “Civil laws that permit only heterosexual marriage reflect and honor a collective moral judgment about human sexuality. This judgment entails [a] moral disapproval of homosexuality.” H.R. Rep. 104-664, at 15-16, 1996 U.S.C.C.A.N. 2905, 2919-20. The Report further stated that “same-sex marriage, if sanctified by the law, if approved by the law, legitimates a public union, a legal status that most people ... feel ought to be illegitimate.” Id. at 16, 1996 U.S.C.C.A.N. 2905, 2920. Despite the expressed animus against gay men and lesbians within the legislative history of DOMA, Congress also specifically identified four governmental interests to be advanced by the statute: (1) encouraging responsible procreation and child-rearing; (2) defending and nurturing the institution of traditional, heterosexual marriage; (3) defending traditional notions of morality; and (4) preserving scarce government resources. See H.R. Rep. No. 104-664, at 12-18. a. Responsible procreation and child-rearing. The first reason proffered by Congress when enacting DOMA was to encourage responsible procreation and child-rearing. Ms. Golinski presents evidence that it is “beyond scientific dispute” that same-sex parents are equally capable at parenting as opposite-sex parents. {See Declaration of Michael Lamb (“Lamb Decl.”) at ¶ 14.) The evidence presented by Professor Lamb demonstrates that parents’ genders are irrelevant to children’s developmental outcomes. {See id. at ¶¶28, 38; Reply Declaration of Michael Lamb (“Lamb Reply Decl.”) at ¶¶ 8, 19, 28.) More than thirty years of scholarship resulting in over fifty peer-reviewed empirical reports have overwhelmingly demonstrated that children raised by same-sex parents are as likely to be emotionally healthy, and educationally and socially successful as those raised by opposite-sex parents. {See Lamb Decl. at ¶¶ 29-32.) “There is ... no empirical support for the notion that the presence of both male and female role models in the home promotes children’s adjustment or well-being.” {Id. at ¶ 14.) “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.” Gill, 699 F.Supp.2d at 388; see also Perry, 704 F.Supp.2d at 1000 (“The evidence does not support a finding that California has an interest in preferring opposite-sex parents over same-sex parents. Indeed, the evidence shows beyond any doubt that parents’ genders are irrelevant to children’s developmental outcomes.”); Varnum, 763 N.W.2d at 899 n. 26 (“The research appears to strongly support the conclusion that same-sex couples foster the same wholesome environment as opposite-sex couples and suggests that the traditional notion that children need a mother and a father to be raised into healthy, well-adjusted adults is based more on stereotype than anything else.”). BLAG argues that there are flaws in the studies proffered by Ms. Golinski’s expert, Professor Lamb, comparing gay or lesbian parents to opposite-sex parents, based on methodological challenges. The first alleged flaw is that there have been fewer studies of gay male parents than there have been of lesbian family research. {See Lamb Reply Decl. at ¶ 7; see also Lin Reply Decl., Ex. K at 76:6-17.) Whether this is the case does not impact the validity of the studies performed. {See Lamb Reply Decl. at ¶ 8.) The second flaw as argued by BLAG is that there are fewer studies on adolescents than on younger children. However, it remains undisputed that “there are several ... studies that have looked at adolescent offspring living with same-sex parents” and those studies have “uniformly reported positive outcomes.” {See id. at ¶¶ 9-10; see also Lin Reply Decl., Ex. K at 82:15-83:21.) The third criticism is that Professor Lamb indicates the need for further studies. This does not impact the validity of the studies already performed. (See Lamb Reply Decl. at ¶ 12.) The Court finds that these criticisms of the studies relied upon by Professor Lamb do not alter them validity. “[A]t the summary judgment stage the judge’s function is not ... to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Liberty Lobby, 477 U.S. at 249, 106 S.Ct. 2505. The Court finds BLAG’s critique does not create an issue of fact. Further, BLAG cites three sources for the proposition that same-sex parenting is inferior to opposite-sex parenting. One is an article from Slate.com in which the author contends that the existing science is methodologically flawed and ideologically skewed. (See Ann Hulbert, The Gay Science: What Do We Know About the Effects of Same-Sex Parenting?, Slate (Mar. 12, 2004), available at http://www.slate.com/id/209704.8/.) This is a three-page, non-scientific article by an author with no professional expertise in child development, published by a popular online magazine without peer review. (See Lamb Reply Decl. at ¶ 15.) Another reference by BLAG is an article criticizing the sampling size in the studies relied upon by Professor Lamb. As Professor Lamb explains, such sampling is typical of psychological research and a number of the studies he relied upon do use representative sampling. (See id. at ¶ 16.) The last source is an unpublished piece by Profe