Case 2:11-cv-00045-CDJ Document 136 Filed 09/24/12 Page 1 of 3

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA

COZEN OCONNOR, P.C., Plaintiff, v. Judge: C. Darnell Jones, II JENNIFER J. TOBITS and DAVID M. FARLEY and JOAN F. FARLEY, h/w, Defendants. Case Number 2:11-cv-00045

JENNIFER TOBITSS RESPONSE TO DAVID AND JOAN FARLEYS NOTICE OF SUPPLEMENTAL AUTHORITY Jennifer Tobits submits this response to the Farleys Notice of Supplemental Authority concerning the Hawaii district courts decision in Jackson v. Abercrombie, No. 11-00734 ACKKSC, ___F. Supp. 2d ___, 2012 WL 3255201 (D. Haw. Aug. 8, 2012), appeal docketed, No. 1216998 (9th Cir. Sept. 10, 2012). Both Jackson and Baker v. Nelson, 409 U.S. 810, 93 S. Ct. 37, 34 L. Ed. 2d 65 (1972), on which it relies, were challenges to state laws precluding same-sex couples from marrying an issue not presented in this case. In Jackson, the district court examined the constitutionality of state laws defining marriage as between a man and a woman. Id. at *1. In Baker, the United States Supreme Court dismissed an appeal of the Minnesota Supreme Courts decision upholding the constitutionality of a Minnesota statute defining marriage between a man and a woman. Id. at *14-17.1 The present case does not seek the right

The Farleys Notice places significant and unwarranted weight on the United States Supreme Courts summary dismissal of Baker for lack of a substantial federal question. Notice at 1-2. As explained in Ms. Tobits Response to Cozens, the Farleys and BLAGs Supplemental Briefs filed December 21, 2011 (Dkt. 92), summary rulings by the Supreme Court 1

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to marry; nor does it challenge any state statutes defining marriage as solely between a man and a woman. Instead, it involves whether DOMA controls the terms of a private employer benefit plan and, if it does, whether applying DOMA to deny Ms. Tobits benefits under such a plan violates her constitutional rights. As such, neither Baker nor Jackson are controlling or provide any additional guidance for the Court regarding the issues in this case. See also, e.g., Massachusetts v. United States Dept of Health & Human Servs., 682 F.3d 1, 8 (1st Cir. 2012) (holding that Baker v. Nelson does not control constitutionality of DOMA). Dated: September 24, 2012 Respectfully submitted,

/s/ Christopher Stoll Amy Whelan, Esquire Christopher Stoll, Esquire National Center for Lesbian Rights 870 Market Street, Suite 370 San Francisco, CA 94102 Admitted Pro Hac Vice Benjamin L. Jerner, Esquire Tiffany L. Palmer, Esquire Jerner & Palmer, P.C. 5401 Wissahickon Avenue Philadelphia, PA 19144 Teresa S. Renaker, Esquire Julie H. Wilensky, Esquire Lewis, Feinberg, Lee, Renaker & Jackson, P.C. 476 - 9th Street Oakland, CA 94607 Admitted Pro Hac Vice Attorneys for Defendant/Counterclaim Plaintiff/Cross-Claimant Jennifer J. Tobits

are narrowly construed and have considerably less precedential value than a full opinion on the merits. Jennifer Tobits Response to Cozens, the Farleys and BLAGs Supplemental Briefs in Accordance with the Courts October 27, 2011 Order at 16, Cozen OConnor, P.C. v. Tobits, No. 2:11-cv-00045 (E.D. Pa. filed Dec. 21, 2011), ECF No. 91. 2

Case 2:11-cv-00045-CDJ Document 136 Filed 09/24/12 Page 3 of 3

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA

COZEN OCONNOR, P.C., Plaintiff v. JENNIFER J. TOBITS and DAVID M. FARLEY and JOAN F. FARLEY, h/w, Defendants Case Number 2:11-cv-00045 Judge: C. Darnell Jones, II

CERTIFICATE OF SERVICE I, Christopher Stoll, hereby certify that a copy of Cross-Claimant Jennifer J. Tobitss Response to David and Joan Farleys Notice of Supplemental Authority was served this 24th day of September 2012 upon all counsel via the Courts CM/ECF system. This document is available for viewing and downloading from the CM/ECF system.

/s/ Christopher Stoll Christopher Stoll