Full opinion text
MEMORANDUM OF DECISION GRANTING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT [Dkt # 60] AND DENYING INTERVENOR-DEFENDANT’S MOTION TO DISMISS [Dkt # 80] VANESSA L. BRYANT, District Judge. Plaintiffs, homosexual individuals legally married to individuals of the same sex under the laws of the States of Connecticut, Vermont, and New Hampshire, bring this suit challenging Section 3 of the Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419 (1996), codified at, 1 U.S.C. § 7, (“DOMA”), as a violation of the Fifth Amendment’s guarantee of Equal Protection. Plaintiffs’ Complaint requests declaratory and injunctive relief, seeking a judgment declaring Section 3 of DOMA unconstitutional and void and an order permanently enjoining the federal government from administering and enforcing DOMA’s definition of “marriage” and “spouse” to exclude homosexual couples legally married under state law from receiving recognition and benefits under the plethora of federal laws which rely on DOMA’s definitions. Currently pending before the Court is a Motion for Summary Judgment [Dkt. # 60] filed by the Plaintiffs asserting that they are entitled to judgment as a matter of law, along with a Motion to Dismiss [Dkt. # 80] filed by the Intervenor-Defendants, the Bipartisan Legal Advisor Group of the United States House of Representatives, (“BLAG”) pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim. As both motions seek ultimate resolution of this matter, the Court will consider and review the motions simultaneously, addressing the fundamental question of whether or not Section 3 of DOMA can withstand the applicable level of constitutional scrutiny. I. Factual Background A. History of DOMA DOMA, was enacted on September 21, 1996 and signed into law by President Clinton after passing both houses of Congress with large majorities. Section 3 of DOMA, the provision which is the subject of the Plaintiffs’ constitutional challenge, codifies the following definition of the terms “marriage” and “spouse” as a matter of federal law: 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. As expressly stated in the House Judiciary Committee Report on DOMA, DOMA was drafted as “a response to a very particular development in the State of Hawaii,” where the “orchestrated legal assault' being waged against traditional heterosexual marriage by gay rights groups and their lawyers” was poised to achieve “its greatest breakthrough.” H.R. Rep. No. 104-664, at 2-4 (1996), reprinted in 1996 U.S.C.C.A.N. 2905-23 (hereinafter the “House Report” or “Report”). The “breakthrough” alluded to in the Report was the Hawaii Supreme Court’s ruling in Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44 (1993), which allowed for the possibility that a Hawaii Revised Statute, Haw. Rev.Stat. § 572-1 (1985), which set forth the “[Requisites of valid marriage contract” and limited state-sanctioned marriages to relationships “between a man and a woman” would be struck down as unconstitutional in violation of the Equal Protection clause of the Hawaii Constitution. The Hawaii Supreme Court held that “on its face and [¶]... ] as applied, HRS § 572-1 denies same-sex couples access to the marital status and its concomitant rights and benefits.” Baehr, 74 Haw. at 564, 852 P.2d 44. The Baehr Court further recognized “sex” as a suspect category for purposes of Equal Protection analysis under the Equal Protection Clause of the Hawaii Constitution, mandating satisfaction of strict scrutiny analysis, the most rigorous form of constitutional inquiry, in order to withstand challenge to its constitutionality under the Hawaii Constitution. Id. at 580, 852 P.2d 44. Concerned by this apparent willingness by judges in Hawaii “to foist the newly-coined institution of homosexual ‘marriage’ upon an unwilling Hawaiian public,” and the “possibility that other States could, through the protracted and complex process of litigation, be forced to follow suit,” Congress, through DOMA, endeavored to enact a federal definition of marriage, ensuring that for purposes of federal regulations and laws, marital benefits would be conferred only upon heterosexual married couples. House Report at 6. The impact of DOMA’s definition of marriage is vast, estimated to affect at least 1,138 federal laws and regulations and to deprive an estimated 100,000 legally married same-sex couples of the benefits afforded to married couples under such federal laws and regulations. Congress was cognizant of DOMA’s expansive scope, noting that the terms “marriage” and “spouse” appear hundreds of times in the spectrum of federal laws and regulations. See House Report at 10. Nevertheless, “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). “Despite its ramifying application throughout the U.S. Code, only one day of hearings was held on DOMA.” Massachusetts v. United States Dep’t of Health and Human Services, 682 F.3d 1, 13 (1st Cir.2012). During this brief hearing, “Congress did not hear testimony from agency heads regarding how DOMA would affect federal programs. Nor was there testimony from historians, economists, or specialists in family or child welfare.” Gill, 699 F.Supp.2d at 379. Though the Plaintiffs in the current case have been denied benefits under only five federal statutes and regulatory schemes, the Court recognizes that this list represents merely a brief sampling of the myriad federal laws and regulations impacted by DOMA and the Court finds the Plaintiffs’ circumstances to be illustrative of the broad breadth of DOMA’s reach. Specifically, Plaintiffs’ marital statuses were denied recognition under the Family and Medical Leave Act (“FMLA”), the Federal Employees Health Benefits Program (“FEHB”), the Internal Revenue Code, the Social Security Act’s “One-Time-Lump-Sum Death Benefit,” the Qualified Preretirement Survivor Annuity (“QPSA”), and the New Hampshire Retirement System’s contribution to Medicare Insurance. “The FEHB is a comprehensive program of health insurance for federal civilian employees, annuitants, former spouses of employees and annuitants, and their family members.” See Gill, 699 F.Supp.2d at 380 (citing 5 U.S.C. § 8901 et seq.). The FEHB was created by the Federal Employees Health Benefits Act, “which established (1) the eligibility requirements for enrollment, (2) the types of plans and benefits to be provided, and (3) the qualifications that private insurance carriers must meet in order to offer coverage under the program.” Id. The statutory purpose of the FEHB is to “protect federal employees against the high and unpredictable costs of medical care and to assure that federal employee health benefits are equivalent to those available in the private sector so that the federal government can compete in the recruitment and retention of competent personnel.” Nat’l Federation of Fed. Employees v. Devine, 679 F.2d 907, 913 n. 9 (D.D.C.1981) (citing S.Rep. No. 468, 86th Cong., 1st Sess. 1-2 (1959); H.R.Rep. No. 957, 86th Cong., 1st Sess. 1-2 (1959), 1959 U.S.C.C.A.N. 2913). The FEHB is administered by the Office of Personnel Management (“OPM”), which prescribes the regulations governing enrollment eligibility and dates of coverage provided to “employees, annuitants, members of their families, and former spouses.” Id. (citing 5 U.S.C. § 8913). Under these regulations, those eligible for coverage may elect to enroll for individual coverage, or for both individual and family coverage. Id. (citing 5 U.S.C. §§ 8905, 8906). Coverage for family members under the FEHB is limited to “the spouse of an employee or annuitant [or] an unmarried dependent child under 22 years of age.” Id. (citing 5 U.S.C. § 8901(5). The FMLA was enacted to further public policy, specifically “to balance the demands of the workplace with the needs of families” by “entitling] employees to take reasonable leave for medical reasons, for the birth or adoption of a child, and for the care of a child, spouse, or parent who has a serious health condition.” 29 U.S.C. § 2601(b)(1), (2). To accomplish these goals, the FMLA entitles eligible employees to take up to twelve work-weeks of unpaid leave during any twelve-month period. 29 U.S.C. § 2612(a)(1). The regulations promulgated by the Department of Labor to implement the FMLA define the term “spouse” for purposes of the FMLA as “a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides, including common law marriage in States where it is recognized.” 29 U.S.C. § 2654; 29 C.F.R. 825.122. The definition of “spouse” in Section 3 of DOMA, however, supplants the Department of Labor’s regulation’s instruction to look to the applicable State law for purposes of analyzing spousal coverage. Thus, for purposes of FMLA coverage, leave to care for a spouse suffering from a serious health condition is available only to members of opposite-sex marriages. 1 U.S.C. § 7. The Social Security Act was created “as a broad program of social insurance, on which working people could rely to provide for themselves and their dependents in old age.” Rosenberg v. Richardson, 538 F.2d 487, 490 (2d Cir.1976). Further, 42 U.S.C. 301 provides that the purpose of grants for old-age assistance is to enable each state “to furnish financial assistance to aged needy individuals.” The Social Security Act “provides certain benefits to the surviving spouse of a deceased wage earner,” including the Lump-Sum Death Benefit. Gill, 699 F.Supp.2d at 382. The Lump-Sum Death Benefit provides that the surviving spouse of “an individual who had adequate lifetime earnings from employment or self-employment” is eligible for “the lesser of $255 or an amount determined based on a formula involving the individual’s lifetime earnings.” Id. (citing 42 U.S.C. §§ 402(I), 413(a), 414(a), (b)). Defined-benefit pension plans are subject to both the Employment Retirement Income Security Act (“ERISA”) and the Internal Revenue Code which impose a variety of obligations and requirements with which such pension plans must comply. See e.g. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 203 (2d Cir.2007) (acknowledging that defined-benefit pension plans are subject to both ERISA and the Internal Revenue Code). One such requirement imposed by both ERISA and the Internal Revenue Code mandates that defined-benefit pension plans provide a Qualified Preretirement Survivor Annuity (“QPSA”). 29 U.S.C. § 1055(a)(2). This requirement was imposed “in order to ensure a stream of income to surviving spouses.” Boggs v. Boggs, 520 U.S. 833, 843, 117 S.Ct. 1754, 138 L.Ed.2d 45 (1997). Another such requirement provides that pension plans which elect to provide a medical cost subsidy as a benefit to its retirees may only extend this benefit to the retired employees, their spouses, and their dependents. 26 U.S.C. § 420(a), (b)(3), (c)(1), (e)(1)(A), and (e)(1)(C). B. History of the Legalization of Gay Marriage in Connecticut, Vermont, and New Hampshire 1. Same-Sex Marriage in Connecticut In 2005, the Connecticut legislature passed Public Acts 2005, No. 05-10, codified at Conn. Gen. Stat. §§ 46b-38aa et seq., establishing the “right of same sex partners to enter into civil unions and conferred on such unions all the rights and privileges that are granted to spouses in marriage.” Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 143-44, 957 A.2d 407 (2008) (citing Conn. Gen. Stat. § 46b-38nn). “Under the civil union law, however, ‘marriage’ [wa]s defined as ‘the union of one man and one woman.’ ” Id. (quoting Conn. Gen. Stat. § 46b-38nn). On January 31, 2007, the Co-Chairmen of the Joint House and Senate Judiciary Committee of the Connecticut General Assembly, State Senator Andrew McDonald and Representative Michael Lawlor introduced a bill affording same-sex couples full marriage rights. See Raised H.B. No. 7395. The proposed bill indicated that the Connecticut General Assembly had found that “(1) [t]he best interests of a child are promoted by having persons in the child’s life who manifest a deep concern for the child’s growth and development; (2) [t]he best interests of a child are promoted when a child has as many persons loving and caring for the child as possible; and (3) [t]he best interests of a child are promoted when the child is part of a loving, supportive and stable family, whether that family is a nuclear, extended, split, blended, single parent, adoptive or foster family.” Id. The bill successfully passed the judiciary committee by a vote of 27-15 on April 12, 2007 but was never submitted to the full House or Senate. Id. In the meantime on October 28, 2008, the Connecticut Supreme Court held that laws restricting civil marriage to heterosexual couples violated same-sex couples’ state constitution equal protection rights and that sexual orientation should be considered a quasi-suspect class. See Kerrigan, 289 Conn, at 260, 957 A.2d 407. After the Kerrigan decision, the Connecticut legislature proposed a second bill affording same-sex couples full marriage rights and repealing the civil union law. See Raised H.B. No. 899. On April 22, 2009, both the Senate and the House voted in favor of Raised H.B. No. 899, “An Act Implementing the Guarantee of Equal Protection Under the Constitution of the State for Same Sex Couples,” and Republican Governor Rell signed the law the next day. Id. The 2009 bill contained the same Connecticut General Assembly findings as provided in the 2007 Raised Bill with respect to the best interests of the children. See Public Act No. 09-13. 2. Same-Sex Marriage in Vermont On December 20, 1999, the Vermont Supreme Court held that same-sex couples are entitled under the Vermont constitution to the “same benefits and protections afforded by Vermont law to married opposite-sex couples.” See Baker v. State, 170 Vt. 194, 224, 744 A.2d 864 (1999). In response, the Vermont legislature passed H.B. 847 et seq. which established the right of same-sex partners to enter into civil unions. On February 9, 2007, the Vermont legislature introduced bill H272 which established civil marriage for same-sex couples. On April 1, 2009, the Vermont Judiciary Committee passed the bill. On April 3, 2009, the Vermont House passed the bill and then on April 6, 2009, the Vermont Senate approved the amendments the House had made to the proposed bill. The amended bill was then vetoed by Vermont’s governor the following day. On April 7, 2009, the veto was overridden by an overwhelming vote of the Senate and the law went into effect September 1, 2009. See Human Rights Commission, http://hrc.vermont.gov/Samesex% 20Marriage (last visited July 27, 2012). The stated purpose of the act was to “recognize legal equality in the civil marriage laws and to protect the religious freedom of clergy and religious societies authorized to solemnize civil marriages.” Vt. Stat. Ann. tit. 15, § 8 (LexisNexis through 2011 session). 3. Same-Sex Marriage in New Hampshire On April 4 and 26, 2007, the New Hampshire House and Senate respectively passed bill H.B. 437, establishing same-sex civil unions which was signed into law on May 31, 2007. 2007 — 2 N.H.Rev.Stat. Ann. Adv. Legis. Serv. 54 (LexisNexis). On March 18, 2009, the New Hampshire legislature voted on a bill H.B. 436 establishing civil marriage for same-sex couples. An amended version of the bill was passed in both the Vermont Senate and the House in May 2009 and signed into law on June 3, 2009. See N.H.Rev.Stat. Ann. § 457:1 (LexisNexis through chapter 9 of 2012 session); Abby Goodnough, New Hampshire Legalizes Same-Sex Marriage, N.Y. Times, June 3, 2009, available at http:// www.nytimes.com/2009/06/04/us/04 marriage.html. C. Plaintiffs’ Factual Backgrounds The pertinent facts are undisputed. Plaintiffs are gay men or lesbians who legally married a person of the same sex under the laws of the States of Connecticut, Vermont and New Hampshire and have applied and been denied federal marital benefits or sought to file federal income tax returns based on their married status. [Dkt. # 61, PL Local Rule 56(a)l Statement, ¶¶ 1-3]. Plaintiffs Joanne Pedersen (“Pedersen”) and Ann Meitzen (“Meitzen”) have been validly married under Connecticut law since December 22, 2008 and have been a committed couple for over twelve years. Id. at ¶4. Pedersen is a retired civilian employee of the Department of the Navy, Office of Naval Intelligence, and is enrolled in the Federal Employees Health Benefits Program (“FEHB”). Id. at ¶ 5. Pedersen contacted FEHB and was told that her wife could not be added to her insurance plan. On November 8, 2010, during FEHB’s open enrollment period, Pedersen used the online option to change her health insurance from “Self-Only” to “Self and Family” and was informed that the system could not process the request and was instructed to call FEHB. Id. at ¶¶ 6-7. Pedersen called the number provided on the website and was informed that her wife was not eligible as her spouse because she is of the same sex. Id. at ¶ 8. Pedersen’s wife, Meitzen, struggles with a chronic lung condition affecting her ability to work and would prefer to retire from full-time employment but is unable to due to the health insurance costs she must pay in light of the fact that she has been denied access to Pedersen’s FEHB health insurance benefits. Id. at ¶¶ 10-11. Plaintiffs Gerald V. Passaro II (“Passaro”) and Thomas Buckholz (“Buckholz”) were validly married under Connecticut law from November 26, 2008 until Buckholz’s death on January 7, 2009. They had been a committed couple for over 13 years. Id. at ¶¶ 13-14. Buckholz was a chemist at the Bayer Corporation (“Bayer”) for more than 20 years and was fully vested in Bayer’s defined benefit pension plan under which Passaro was his named beneficiary. Bayer denied Passaro’s request to provide him with benefits under the pension plan. Id. at ¶ 16. Passaro also applied for the Social Security lump-sum benefit available to surviving spouses. Id. at ¶ 18. The Social Security Administration (“SSA”) denied his claim and he was informed by SSA that his “marriage d[id] not meet the requirements under Federal law for payment of Social Security Lump Sum Death benefits.” Id. at ¶ 19. Plaintiffs Raquel Ardin (“Ardin”) and Lynda DeForge (“DeForge”) have been validly married under Vermont law since September 7, 2009 and have been a committed couple for over thirty years. ■ Id. at f 20. DeForge has been a United States Postal Service employee for 26 years and is an eligible employee under the terms of Title I of the Family Medical Leave Act (“FMLA”). Id. at ¶21. Ardin also worked for the United States Postal Service for 25 years before taking disability retirement in 2005 for a neck injury sustained during her service abroad for the United States Navy. Id. at ¶¶ 22-23. DeForge is required to be with Ardin one day every three months to care for her during her regular treatments for her neck injury. DeForge applied for FMLA leave for one day every three months to care for her wife during these treatments. Id. at ¶¶ 25-26. The United States Postal Service denied DeForge’s request for FMLA leave and instead DeForge has taken vacation time to provide such care for her wife. Id. at ¶¶ 27-28. DeForge has also taken an additional 64 hours of vacation time to care for her wife following two surgeries in which she would have preferred to have taken this time as unpaid leave under the FMLA. Id. at ¶¶ 29. Both DeForge and Ardin are enrolled in the FEHB Program under a “Self-Only” plan. During open enrollment, DeForge applied to have Ardin added to her “Self and Family” plan under the FEHB program and was informed that “[s]ame sex spouses are not considered eligible family members under FEHB.” Id. at ¶¶ 32-35. DeForge and Ardin would prefer to have one “Self and Family” plan in order to take advantage of the cost savings of a single plan. Id. at ¶ 36. Plaintiffs Janet Geller (“Geller”) and Joanna Marquis (“Marquis”) have been validly married under New Hampshire law since May 3, 2010 and have been a committed couple for over thirty years. Id. at ¶ 38. Marquis is a retired school teacher having taught in New Hampshire public schools for over 30 years. Geller is also a retired school teacher having taught in New Hampshire public schools for over 25 years. Id. at ¶¶ 39-40. Both receive a pension through the New Hampshire Retirement System (“NHRS”). Id. at ¶ 41. Because Marquis has over 30 years of service her NHRS benefits include a medical cost supplement that helps pay for her Medicare Part B supplemental insurance and which also provides a supplement for her spouse. Marquis applied for the cost supplement for her wife Geller and was denied the benefit which would have resulted in $375.56 in savings per month. Id. at ¶¶ 42-45. Plaintiffs Suzanne Artis and Geraldine Artis have been validly married under Connecticut law since July 11, 2009, have been a committed couple for over seventeen years, and are raising three children together. Id. at ¶¶ 47-48. For the year 2009, Suzanne Artis filed a federal income tax return as Head of Household and Geraldine Artis filed a federal income tax return as Single. Id. at ¶ 49. Both Suzanne and Geraldine Artis submitted a first amended federal income tax return for the year 2009 on IRS Form 1040X requesting a refund of $1,465, which is the difference between what they each paid as a Head of Household filer and as a Single filer, respectively, and what they would have paid if they had been permitted to file with the status of Married Filing Jointly. The IRS denied the Artis’s 2009 refund request because “for federal tax purposes, a marriage means only a legal union between a man and a woman as husband and wife.” Id. at ¶¶ 50-52. Plaintiffs Bradley Kleinerman (“Kleinerman”) and James Gehre (“Gehre”) have been validly married under Connecticut law since March 6, 2009 and have three children whom they adopted jointly. Id. at ¶¶ 55-56. For the year 2009, Kleinerman filed a federal income tax return as Head of Household. Gehre, a stay at home parent did not have sufficient income to file a federal income tax return. Id. at ¶ 57. Kleinerman submitted a first and then second amended federal income tax return for the year 2009 on IRS Form 1040X requesting a refund of $2,085 which is the difference between what he paid as a Head of Household filer and what he would have paid if he had been permitted to file with the status of Married Filing Jointly. Id. at ¶¶ 58-59. The IRS failed to act on the second amended return within 6 months and therefore his request has been deemed denied by the IRS. Id. at ¶ 60. Kleinerman and Gehre were also informed that they would have to fill out two United States customs forms upon returning to the United States from an international trip. Id. at ¶ 62. Plaintiffs Damon Savoy (“Savoy”) and John Weiss (“Weiss”) have been validly married under Connecticut law since October 9, 2010, have been a committed couple for twelve years, and are raising three adopted children together. Id. at ¶¶ 64, 66. Savoy has been a government attorney for the Office of the Comptroller of the Currency (“OCC”) since 1992 and is enrolled in the FEHB program. Id. at ¶ 65. Weiss gave up his career to focus on raising their children full time. After Weiss’s COBRA health coverage terminated, he had to apply for and purchase health care coverage on the private insurance market. Id. at ¶¶ 66-67. Savoy applied to have his husband added to his existing health plan under the FEHB Program and his application was denied. Id. at ¶¶ 69-70. II. Standards of Review A. Motion to Dismiss “ ‘To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.’ ” Sar miento v. U.S., 678 F.3d 147 (2d Cir.2012) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). While Rule 8 does not require detailed factual allegations, “[a] pleading that offers ‘labels and conclusions’ or ‘formulaic recitation of the elements of a cause of action will not do.’ Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’ ” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citations and internal quotations omitted). “Where 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 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). 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.” Id. (internal citations omitted). In considering a motion to dismiss for failure to state a claim, the Court should follow a “two-pronged approach” to evaluate the sufficiency of the complaint. Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir.2010). “A court ‘can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.’” Id. (quoting Iqbal, 129 S.Ct. at 1949-50). “At the second step, a court should determine whether the ‘well-pleaded factual allegations, ‘assumed to be true,’ plausibly give rise to an entitlement to relief.’” Id. (quoting Iqbal, 556 U.S. at 679, 129 S.Ct. 1937). “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.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (internal quotations omitted). B. Motion for Summary Judgment Summary judgment should be granted “if the movant shows' that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’ ” Fed.R.Civ.P. 56(a). The moving party bears the burden of proving that no factual issues exist. Vivenzio v. City of Syracuse, 611 F.3d 98, 106 (2d Cir.2010). “In determining whether that burden has been met, the court is required to resolve all ambiguities and credit all factual inferences that could be drawn in favor of the party against whom summary judgment is sought.” Id., ■ (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). “If there is any evidence in the record that could reasonably support a jury’s verdict for the nonmoving party, summary judgment must be denied.” Am. Home Assurance Co. v. Hapag Lloyd Container Linie, GmbH, 446 F.3d 313, 315-16 (2d Cir.2006) (internal quotation marks and citation omitted). “A party opposing summary judgment cannot defeat the motion by relying on the allegations in his pleading, or on conelusory statements, or on mere assertions that affidavits supporting the motion are not credible. At the summary judgment stage of the proceeding, Plaintiffs are required to present admissible evidence in support of their allegations; allegations alone, without evidence to back them up, are not sufficient.” Welch-Rubin v. Sandals Corp., No. 3:03cv481, 2004 WL 2472280, at *1 (D.Conn. Oct. 20, 2004) (internal quotation marks and citations omitted); Martinez v. State of Connecticut, 817 F.Supp.2d 28, 37-38 (D.Conn.2011). Where there is no evidence upon which a jury could properly proceed to find a verdiet for the party producing it and upon whom the onus of proof is imposed, such as where the evidence offered consists of conclusory assertions without further support in the record, summary judgment may lie. Fincher v. Depository Trust and Clearing Corp., 604 F.3d 712 (2d Cir.2010). III. Discussion A. Standing of those Plaintiffs Who Were Prevented from Filing Joint Tax Returns BLAG argues that those Plaintiffs who claim that DOMA prohibited them from jointly filing their taxes lack standing in this case. See [Dkt. # 82, BLAG Obj. to Summary Judgment, p. 34-37]. BLAG argues that the “statute governing the joint filing of married persons, 26 U.S.C. § 6013, does not on its own extend to same-sex couples.” Id. at 34. 26 U.S.C. § 6013 provides in relevant part that a “husband and wife may make a single return jointly of income taxes ...” 26 U.S.C. § 6013(a). BLAG argues that these Plaintiffs lack standing “because the joint filing statute itself offers an independent ground to deny them joint, married filing status.” [Dkt. #82, p. 35]. BLAG argues that even if DOMA were struck down, these Plaintiffs would not qualify as “spouses” nor would their relationships qualify as “marriages” within the meaning of the IRS code. Id. at 37. “Article III, § 2 of the United States Constitution restricts federal courts to deciding ‘Cases’ and ‘Controversies’ and thus imposes what the Supreme Court has described as the ‘irreducible constitutional minimum of standing,’ — injury-in-fact, causation, and redressability.” Baur v. Veneman, 352 F.3d 625, 631-32 (2d Cir.2003) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). Lujan holds that a “litigant must demonstrate that it has suffered a concrete and particularized injury that is either actual or imminent, that the injury is fairly traceable to the defendant, and that it is likely that a favorable decision will redress that injury.” Massachusetts v. EPA, 549 U.S. 497, 517, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007). “In the absence of standing, a court lacks the requisite subject matter jurisdiction over the case.” HealthNow New York Inc. v. New York, 448 Fed.Appx. 79, 81 (2d Cir.2011). Plaintiffs argue that BLAG’s interpretation of the IRS code is unavailing because gendered terms in federal statutes are presumptively gender-neutral. U.S.C. Title 1, Section 1 states iri relevant part that “when determining the meaning of any Act of Congress, unless the context indicates otherwise ... [the] words importing the masculine gender include the feminine as well.” 1 U.S.C. § 1. Moreover, the Internal Revenue Code itself states that it cross references 1 U.S:C. § 1 for the other definitions including' “masculine as including feminine.” See 26 U.S.C. § 7701(p)(l)(3). The gender neutral equivalent of the terms husband and wife is spouse. Therefore it is clear that even absent DOMA the use of the gendered terms of “husband” and “wife” in Section 6013 would not bar Plaintiffs from joint filing on the basis of the IRS code’s adoption of Section l’s gender-neutral directive. In addition, Plaintiffs argue that the IRS has “never adopted the narrow statutory construction the House now urges. To the contrary, the IRS has repeatedly stated that DOMA — and not Code Section 6013 — is the reason that same-sex couples may not' file joint tax returns.”[Dkt. # 95, PI. Obj. to Motion to Dismiss, p. 36]. Moreover, Plaintiffs have provided evidence that prior to the enactment of DOMA in 1996 the IRS’s practice was to defer to state law to determine marital status. See Boyter v. Comm’r, 668 F.2d 1382, 1385 (4th Cir.1981) (“[U]nder the Internal Revenue Code a federal court is bound by state law rather than federal law when attempting to construe marital status.”). The 1995 version of IRS Publication 17, Cat. No. 10311G, “Your Federal Income Tax — For Individuals” for use in preparing 1995 returns stated that “[y]our filing status is a category that identifies you based on your marital and family situation. State law governs whether you are married, divorced, or legally separated under a decree of divorce or separate maintenance.” [Dkt. # 100, attach 10, Exhibit J]. Plaintiffs offer unequivocal evidence that DOMA was the reason the IRS no longer deferred to state law and instead denied same-sex couples who were validly married under state law the ability to file joint tax returns. Indeed, Plaintiffs have submitted a letter from the IRS itself indicating that DOMA was the reason why they were denied joint married filing status. The IRS sent a Determination Letter to Plaintiff Suzanne Artis dated December 31, 2009 stating that “[according to Public Law 104-199, Defense of Marriage Act (DOMA) states that a legal union between one man and one woman is considered marriage. And because same sex couples cannot, under DOMA, constitute a marriage, they cannot file a Married Filing Joint tax return.” [Dkt. # 100, attach 8, Exhibit H]. Further, Plaintiffs have submitted an IRS information letter dated December 31, 2001, stating that “[b]ecause parties to a Vermont civil union must be of the same sex, a Vermont civil union cannot, under DOMA, be a marriage for purposes of the Internal Revenue Code. Therefore, parties to a Vermont civil union cannot be considered married for purposes of § 1 or as husband and wife for purposes of § 6013.” [Dkt. # 100, attach 11, Exhibit K]. Lastly, in addition, the 2009 version of IRS publication 17, ‘Tour Federal Income Tax — For Individuals” for use in preparing 2009 returns stated that “[i]n general, your filing status depends on whether you are considered unmarried or married. For federal tax purposes, a marriage means only a legal union between a man and a woman as husband and wife.” [Dkt. # 100, attach 9, Exhibit I]. The record clearly establishes that those Plaintiffs referred to as the “Tax Plaintiffs” have satisfied their burden of proving that DOMA was, and but for adjudication of this issue will continue to be, the cause of their alleged injury. BLAG’s arguments that Section 6013 and not DOMA deprives the “Tax Plaintiffs” of the tax treatment to which they assert entitlement is unpersuasive in light of the IRS’s clear and unequivocal statement that DOMA was the basis for its denial of joint married filing status. The Court therefore finds that the “Tax Plaintiffs” have standing to pursue their claims in this Court. B. Baker v. Nelson Does Not Mandate Dismissal of Plaintiffs’ Case BLAG argues that the Supreme Court’s summary dismissal in Baker v. Nelson, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972), forty (40) years ago is binding precedent supporting the constitutionality of DOMA and that Baker mandates dismissal of Plaintiffs’ case. [Dkt. # 81, BLAG Motion to Dismiss, p. 14.]. The Court rejects BLAG’s argument for two reasons. First, Baker has limited precedential value. In Baker, the Appellants challenged a Minnesota statute which denied marriage licenses to same-sex couples on due process and equal protection grounds arguing that “the right to marry without regard to the sex of the parties is a fundamental right,” and that “restricting marriage to only couples of the opposite sex is irrational and invidiously discriminatory.” Baker v. Nelson, 291 Minn. 310, 312, 191 N.W.2d 185 (1971). The Minnesota Supreme Court affirmed that the statute “does not authorize marriage between persons of the same sex and that such marriages are accordingly prohibited” and held that the “equal protection clause of the Fourteenth Amendment, like the due process clause, is not offended by the state’s classification of persons authorized to marry.” Id. at 312-313, 191 N.W.2d 185. The Appellants then exercised their right of appeal to the United States Supreme Court pursuant to 28 U.S.C. § 1257(2) (repealed 1988) arguing that the Minnesota marriage statute violated due process and equal protection rights guaranteed by the Fourteenth Amendment. The Supreme Court summarily dismissed the appeal “for want of substantial federal question.” Baker v. Nelson, 409 U.S. at 810, 93 S.Ct. 37. The Second Circuit has eschewed the application of Baker advocated by BLAG. “The Supreme Court has long recognized that the precedential value of a summary dismissal is limited to the ‘precise issues presented and necessarily decided by’ the dismissal.” Alexander v. Cahill, 598 F.3d 79, 89 n. 7 (2d Cir.2010). The Supreme Court has repeatedly cautioned that the precedential import of a summary dismissal is extremely narrow. In other words, a “summary affirmance [or dismissal] is a ‘rather slender reed’ on which to rest future decisions.” Morse v. Republican Party, 517 U.S. 186, 203 n. 21, 116 S.Ct. 1186, 134 L.Ed.2d 347 (1996) (internal citation omitted). Consequently, any “[questions which ‘merely lurk in the record,’ ... are not resolved, and no resolution of them may be inferred.” Ill. State Bd. of Elec. v. Socialist Workers, 440 U.S. 173, 182, 99 S.Ct. 983, 59 L.Ed.2d 230 (1979). Second, the instant case does not present the same questions presented in Baker. Baker presented a state constitutional question while this case presents a United States constitutional question. Plaintiffs have challenged a federal law which defines marriage for federal purposes, impacting entitlement to federal benefits and obligations under federal law. DOMA abridges the states’ right to confer marital status on residents, but it does not wholly deprive states of the right to do so. DOMA impacts federal benefits and obligations, but does not prohibit a state from authorizing or forbidding same-sex marriage, as was the case in Baker. In addition, although the Plaintiffs argue that DOMA impacts a fundamental right, the issue of whether there is a constitutional right to same-sex marriage is not present in the instant matter as all Plaintiffs are validly married under state law. Consequently, Baker, which addressed whether there was a constitutional right to same-sex marriage, is clearly unrelated to the question presented in the current case and. is therefore not binding on this Court. Accord, e.g., Windsor v. United States, 833 F.Supp.2d 394, 399-400 (S.D.N.Y.2012) (“[A]fter comparing the issues in Baker and those in the instant case, the Court does not believe that Baker’ necessarily decided ‘the question of whether DOMA violates the Fifth Amendment’s Equal Protection Clause.”); Golinski v. U.S. Office of Personnel Management, 824 F.Supp.2d 968, 983 n. 5 (N.D.Cal.2012) (finding Baker to be irrelevant to Plaintiffs’ equal protection challenge to DOMA); Massachusetts, 682 F.3d at 2 (holding on challenge to DOMA that “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.”); Smelt v. County of Orange, 374 F.Supp.2d 861, 873 (C.D.Cal.2005) (finding that DOMA reflects “interests and its own legislative history” that “were not before the Minnesota Supreme Court or the U.S. Supreme Court at the time of Baker ”); In re Kandu, 315 B.R. 123, 137 (Bankr. W.D.Wash.2004) (finding that Baker does not apply because DOMA deals with “subsequently-enacted federal legislation with its own Congressional history that concerns exclusively federal benefits”). Having concluded that Baker is not dispositive of the issues presented in this case, the Court -will consider the parties’ arguments as to whether DOMA violates the promise of equal protection. C. Equal Protection “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, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 216, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982)). Though the Fifth Amendment makes no explicit mention of equal protection under the laws, the Supreme Court has recognized that since 1975, “[t]his Court’s approach to Fifth Amendment equal protection claims has always been precisely the same as to equal protection claims under the Fourteenth Amendment.” Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 217, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995) (internal quotations omitted) (quoting Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n. 2, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975)); 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.”). The guarantee of equal protection of the laws, well-established to be incorporated into the Fifth Amendment, “is a pledge of the protection of equal laws.” See Romer v. Evans, 517 U.S. 620, 633-34, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996) (internal quotations omitted) (quoting Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942)). When considering a state constitutional amendment prohibiting any administrative, legislative or judicial action designed to protect homosexuals from discrimination, the United States Supreme Court reminded us that our “Constitution ‘neither knows nor tolerates classes among citizens.’ ” Romer, 517 U.S. at 623, 116 S.Ct. 1620 (quoting Plessy v. Ferguson, 163 U.S. 537, 559, 16 S.Ct. 1138, 41 L.Ed. 256 (1896)). The need to adhere to these directives of equal protection, however, must be balanced against “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 (citing Pers. Admin, of Mass. v. Feeney, 442 U.S. 256, 271-72, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979)). “A legislature must have substantial latitude to establish classifications that roughly approximate the nature of the problem perceived, that accommodate competing concerns both public and private, and that account for limitations on the practical ability of the State to remedy every ill. In applying the Equal Protection Clause to most forms of state action, we thus seek only the assurance that the classification at issue bears some fair relationship to a legitimate public purpose.” Plyler, 457 U.S. at 216, 102 S.Ct. 2382. “[Cjourts 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. Golinski, 824 F.Supp.2d at 981 (citing Romer, 517 U.S. at 631, 116 S.Ct. 1620). Conversely, “if a law neither burdens a fundamental right nor targets a suspect class,” the legislative classification will withstand constitutional scrutiny “so long as it bears a rational relation to some legitimate end.” Romer, 517 U.S. at 631, 116 S.Ct. 1620 (citing Heller v. Doe, 509 U.S. 312, 319-20, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993)). However, even under rational basis review the constitutional scrutiny is not “minimalist,” rather the Court must consider the “case-specific nature of the discrepant treatment, the burden imposed, and the infirmities of the justifications offered.” Massachusetts, 682 F.3d at 6. At the outset, the Court must determine the appropriate level of scrutiny to apply. Plaintiffs argue that DOMA should be subject to heightened judicial review because DOMA treats individuals differently on the basis of their sexual orientation by denying certain benefits to legally married same-sex couples that are available to legally married opposite-sex couples. D. Suspect Class The Supreme Court has acknowledged that it “would not be faithful” to its obligations under the Constitution to apply “so deferential a standard to every classification” as the equal protection clause was intended as a restriction on legislative action “inconsistent with elemental constitutional premises.” Plyler, 457 U.S. at 216, 102 S.Ct. 2382. Consequently, a greater scrutiny is applied to classifications that disadvantage a suspect class or that impinge upon the exercise of a fundamental right. Id. Such classifications are therefore “treated as presumptively invidious” and must be “precisely tailored to serve a compelling government interest” to pass constitutional muster. Id. In addition, classifications that disadvantage a quasi-suspect class are also subject to a form of heightened scrutiny and must be “substantially related to a legitimate state interest” to withstand so-called intermediate scrutiny. See Mills v. Habluetzel, 456 U.S. 91, 99, 102 S.Ct. 1549, 71 L.Ed.2d 770 (1982). Plaintiffs argue that heightened scrutiny is appropriate in the instant case on two bases: first Plaintiffs argue that sexual orientation should be considered a suspect or quasi-suspect class and second that DOMA “disparately burdens the fundamental interest in maintaining existing family relationships”. See [Dkt. # 63, PL Motion for Summary Judgment, p. 15-30], Since Plaintiffs’ first argument is the narrower ground for assessing the appropriateness of heightened scrutiny the Court will consider this argument first as “courts generally decide constitutional questions on the narrowest ground available.” Perry v. Brown, 671 F.3d 1052, 1076 (9th Cir.2012) (citing Plant v. Spendthrift Farm, Inc., 514 U.S. 211, 217, 115 S.Ct. 1447, 131 L.Ed.2d 328 (1995)). The Supreme Court has considered the following factors in assessing whether a particular classification should be considered either a suspect or quasi-suspect class: “(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.” Golinski, 824 F.Supp.2d at 983 (citation omitted). “No single factor for determining elevated scrutiny is dispositive.” Id. See Massachusetts Bd. of Ret. v. Murgia, 427 U.S. 307, 321, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976) (Marshall, J. dissenting) (acknowledging the problems of “deciding cases based on factors not encompassed by the applicable standards” as “rudderless” and “unpredictable” and the related danger that “relevant factors will be misapplied or ignored.” “All interests are not ‘fundamental’ and all classes not ‘suspect’ are not the same; and it is time for the Court to drop the pretense that, for purposes of the Equal Protection Clause, they are.”). The presence of any one of these factors marks such classification as “more likely than others to reflect deep-seated prejudice rather than legislative rationality in pursuit of some legitimate objective.” Plyler, 457 U.S. at 216 n. 14, 102 S.Ct. 2382. “Legislation predicated on such prejudice is easily recognized as incompatible with the constitutional understanding that each person is to be judged individually and is entitled to equal justice under the law. Classifications treated as suspect tend to be irrelevant to any proper legislative goal.” Id. Although no one factor is dis-positive, Supreme Court precedent has placed greater emphasis on the first two factors. See Golinski, 824 F.Supp.2d at 983 (citing Kerrigan, 289 Conn, at 167-68, 957 A.2d 407). 1. Federal Precedent Regarding Suspect Classification BLAG contends that sexual orientation has never been viewed as a suspect or quasi-suspect class by federal courts and argues that it would be a “radical step” to disregard “consistent, substantial and persuasive authority.” See [Dkt. # 82, p. 8]. In support of this contention, BLAG points to the Supreme Court’s past application of rational basis review to classifications based on sexual orientation in Romer and Lawrence and emphasizes that eleven federal circuits have previously held that homosexuals are not a suspect class. Id. at 7 (citing Cook v. Gates, 528 F.3d 42, 61 (1st Cir.2008); Lofton v. Sec. of Dep’t of Children & Fam. Servs., 358 F.3d 804, 818 & n. 1 (11th Cir.2004); High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563, 574 (9th Cir.1990); Ben-Shalom v. Marsh, 881 F.2d 454, 464 (7th Cir.1989)). The jurisprudence of the appropriate classification is inchoate. While BLAG’s asserts that there is “consistent, substantial and persuasive authority” supporting the conclusion that sexual orientation is not a suspect or quasi-suspect class, many circuits, including ours, have not had occasion to squarely address it. First, the question of whether sexual orientation is a suspect class is an open question in the Second Circuit and therefore a matter of first impression before this Court. See Able v. United States, 155 F.3d 628, 632 (2d Cir.1998) (noting that the court need not decided whether homosexuals were a suspect class in the Second Circuit since the “plaintiffs asserted that they were not seeking any more onerous standard than the rational basis test” on appeal); see also Windsor, 833 F.Supp.2d at 402 (finding DOMA violated equal protection under rational basis review and noting that the court “need not decided today whether homosexuals are a suspect class.”). Second, the Supreme Court has not yet ruled on the appropriate level of scrutiny for classifications based on sexual orientation. In both Romer and Lawrence, the Supreme Court only assessed whether the subject legislation failed rational basis review and neither opinion addressed the issue of suspect class. See Kerrigan, 289 Conn. at 238-39, 957 A.2d 407 (rejecting the contention that the United States Supreme Court in Romer “implicitly concluded that gay persons do not comprise a suspect or quasi-suspect class ... Because the court indicated that the Colorado constitutional amendment could not withstand even rational basis review, the lowest level of judicial scrutiny, the court had no reason to decide whether heightened review was appropriate.”). Indeed, the word “suspect” does not appear once in the Supreme Court’s decision in Lawrence and only the dissent in Romer mentions suspect class in a footnote noting that respondents elected to not appeal to the Supreme Court of Colorado the trial court’s rejection of their argument that homosexuals constitute a suspect or quasi-suspect class. Romer, 517 U.S. at 640 n. 1, 116 S.Ct. 1620; Lawrence v. Texas, 539 U.S. 558, 589 n. 1, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003). In view of this, Romer and Law rence are not dispositive as to the level of scrutiny that should be afforded to classifications based on sexual orientation. Lastly, many of the cases relied on by BLAG in turn rely on the reasoning of Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986) which was subsequently overruled in Lawrence or gave cursory consideration to the suspect class analysis. Thus these cases lack both contemporary and explicative analysis of the issue. As the Golinski court in the Northern District of California noted “[w]hen 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.” Golinski, 824 F.Supp.2d at 983 (internal quotation marks and citation omitted). As the Golinski court explained, the Ninth Circuit’s holding in High Tech Gays that homosexuals could not constitute a suspect or quasi-suspect class was entirely predicated on the Supreme Court’s reasoning in Bowers upholding the criminalization of private consensual homosexual conduct. Id. at 983-984; High Tech Gays, 895 F.2d at 571 (“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.”). However, this very reasoning was squarely rejected in Lawrence in which the Supreme Court held that private consensual homosexual conduct could not be criminalized because such practices were safeguarded by the liberty protections afforded by the Due Process Clause of the Fourteenth Amendment. Like the Ninth Circuit, the vast majority of the federal circuit cases addressing this issue “either relied on Bowers explicitly or relied on cases that were predicated on Bowers.” Kerrigan, 289 Conn, at 231 n. 64, 957 A.2d 407 (collecting cases). Consequently, the Supreme Court’s holding in Lawrence “remov[ed] the precedential underpinnings of the federal case law supporting the defendants’ claim that gay persons are not a [suspect or] quasi-suspect class.” Id. at 233, 957 A.2d 407. Furthermore as the Department of Justice (“DOJ”) in their response to the Plaintiffs’ motion for summary judgment and BLAG’s motion to dismiss note, a number of the circuit cases relied on by BLAG involve challenges to military policy on homosexual conduct and are therefore distinguishable from challenges within the civilian context. See [Dkt. # 98, DOJ Obj. to Motion to Dismiss and Summary Judgment, p. 10 n.2]; Cook, 528 F.3d at 45 (challenge to the military’s “Don’t Ask Don’t Tell” policy); Ben-Shalom, 881 F.2d at 456 (challenge to Army Regulation 135— 178); High Tech Gays, 895 F.2d at 565 (challenge to the Department of Defense policy of conducting expanded investigations into backgrounds of all gay and lesbian applicants for secret and top secret security clearances). Indeed, the Second Circuit has observed that “[i]n full recognition that within the military individual rights must of necessity be curtailed lest the military’s mission be impaired, courts have applied less stringent standards to constitutional challenges to military rules, regulations and procedures than they have in the civilian context” and consequently a court’s “ ‘review of military regulations ... is far more deferential than constitutional review of similar laws or regulations designed for civilian society.’” Able, 155 F.3d at 633 (quoting Goldman v. Weinberger, 475 U.S. 503, 507, 106 S.Ct. 1310, 89 L.Ed.2d 478 (1986)); see also Rostker v. Goldberg, 453 U.S. 57, 70, 101 S.Ct. 2646, 69 L.Ed.2d 478 (1981) (acknowledging that “judicial deference to such congressional exercise of authority is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged”). Considering the inimitable circumstances attending military regulations and the uniquely deferential approach afforded to such regulations, whatever precedential value these cases have to the civilian context is considerably diminished. In view of the fact that the authority relied on by BLAG in turn relied on Bowers, which was rejected in Lawrence, and relied on analyses in the deferential military context rather than the more discretionary civilian context, the precedential import of such authority is unpersuasive, particularly given the fact that the Second Circuit has not had an opportunity to consider the matter. The Court is mindful of the Supreme Court’s admonition that “ ‘respect for the separation of powers’ should make courts reluctant to establish new suspect classes.” Thomasson v. Perry, 80 F.3d 915, 928 (4th Cir.1996) (quoting Cleburne, 473 U.S. at 441, 105 S.Ct. 3249). The Supreme Court has to date only recognized a handful of suspect and quasi-suspect classes. See e.g., Loving v. Virginia, 388 U.S. 1, 11, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) (race subject to strict scrutiny); Korematsu v. United States, 323 U.S. 214, 216, 65 S.Ct. 193, 89 L.Ed. 194 (1944) (national ancestry and ethnic origin subject to strict scrutiny); Frontiero v. Richardson, 411 U.S. 677, 686, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973) (plurality opinion) (gender subject to intermediate scrutiny); Mathews v. Lucas, 427 U.S. 495, 505-506, 96 S.Ct. 2755, 49 L.Ed.2d 651 (1976) (illegitimacy subject to intermediate scrutiny); cf., e.g., Cleburne, 473 U.S. at 443, 105 S.Ct. 3249 (declining to recognize mentally disadvantaged as a suspect class); Murgia, 427 U.S. at 313, 96 S.Ct. 2562 (per curiam) (declining to extend strict scrutiny to the elderly); Lyng v. Castillo, 477 U.S. 635, 638, 106 S.Ct. 2727, 91 L.Ed.2d 527 (1986) (declining to extend strict scrutiny to close relatives). Although heedful of the command for judicial restraint, the Court recognizes that a mechanical adherence to this command would likely undermine the Court’s obligation to ensure that the equal protection clause does serve as a restriction on legislative action “inconsistent with [the] elemental constitutional premise[]” that “all persons similarly circumstanced shall be treated alike.” Plyler, 457 U.S. at 216-17, 102 S.Ct. 2382 (internal quotation marks and citation omitted). Pursuant to this obligation, the Court must not be tempted to tie conceptions of judicial restraint to historic notions of equality. The Supreme Court has indeed remarked that “the Equal Protection Clause is not shackled to the political theory of a particular era. In determining what lines are unconstitutionally discriminatory, we have never been confined to historic notions of equality, any more than we have restricted due process to a fixed catalogue of what was at a given time deemed to be the limits of fundamental rights. Notions of what con-statutes equal treatment for purposes of the Equal Protection Clause do change.” Harper v. Virginia State Bd. of Elections, 383 U.S.. 663, 669, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966). In this Court’s view, this elasticity does not mean a rewriting of the Constitution, but rather a rigorous examination of the fundamental meaning of the noble ideals established by our founding fathers as our guiding and enduring principles. Considering the import of the elemental premise of equal protection and in light of the lack of persuasive authority as to appropriate the level of scrutiny, it is this Court’s duty to meaningfully assess in the first instance whether sexual orientation constitutes a suspect or quasi-suspect class. 2. Suspect or Quasi-suspect Class Factors At the outset, this Court is guided by Justice Thurgood Marshall’s approach in his concurring and dissenting opinion in Cleburne, joined by Justices Brennan and Blackmun, that “[n]o single talisman can define those groups likely to be the target of classifications offensive to the [fjourteenth [ajmendment and therefore warranting heightened or strict scrutiny; experience, not abstract logic, must be the primary guide.” 473 U.S. at 472-73 n. 24, 105 S.Ct. 3249. Moreover, “[t]he discreteness and insularity warranting a ‘more searching judicial inquiry’ ... must therefore be viewed from a social and cultural perspecti ve as well as a political one. To this task judges are well suited, for the lessons of history and experience are surely the best guide as to when, and with respect to what interests, society is likely to stigmatize individuals as members of an inferior caste or view them as not belonging to the community. Because prejudice spawns prejudice, and stereotypes produce limitations that confirm the stereotype on which they are based, a history of unequal treatment requires sensitivity to the prospect that its vestiges endure. In separating those groups that are discrete and insular from those that are not, as in many important legal distinctions, ‘a page of history is worth a volume of logic.’ ” Id. (citations omitted). Thus the Court’s analysis will be cognizant of social, cultural and political perspectives grounded in experience as opposed to abstract logic and an awareness that there is likely no single talisman that signals which groups are the subject of classifications offensive to the principle of equal protection. i. History of Discrimination The first factor courts consider is whether the class has suffered a history of discrimination. Plaintiffs argue that “[i]t is beyond dispute that ‘for centuries there have been powerful voices to condemn homosexual conduct as immoral’ ” and