Windsor v. The United States Of America

Filing 103

Letter addressed to Judge Barbara S. Jones from H. Christopher Bartolomucci dated 3/06/2012 re: This responds to Plaintiffs letter to the Court dated February 21, 2012, regarding the Attorney General's recent decision not to defend 38 U.S.C. § 101(3) and 101(31). The constitutionality of those two statutory provisions is not at issue in this case. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives.(ama)

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March 6, 2012 By Overnight Delivery The Honorable Barbara S. Jones United States District Judge United States District Court for the Southern District of New York 500 Pearl Street New York, NY 10007 USOCSDNY ·DOCUMENT ELECTRONICALLY FiLED DOC#':. r. DATE FILED: YJJ:.r/ (1- Re: Windsor v. United States, 10 Civ. 8435 (BSJ) (JCF) Dear Judge Jones: This responds to Plaintiffs letter to the Court dated February 21, 2012, regarding the Attorney General's recent decision not to defend 38 U.S.C. § 101(3) and 101(31). The constitutionality of those two statutory provisions is not at issue in this case. Title 38 of the U.S. Code concerns veterans' benefits, including eligibility for such benefits. Section 101(31) provides that for purposes of Title 38 the term '"spouse' means a person of the opposite sex who is a wife or husband." 38 U.S.C. § 101(31). For its part, Section 101(3) provides that the term "surviving spouse" means (except for purposes of chapter 19 of this title) a person of the opposite sex who was the spouse of a veteran at the time of the veteran's death, and who lived with the veteran continuously from the date of the marriage to the date of the veterans' death (except where there was a separation which was due to the misconduct of, or procured by, the veteran without the fault of the spouse) and who has not remarried or (in cases not involving remarriage) has not since the death of the veteran, and after September 19, 1962, lived with another person and held himself or herself out openly to the public to be the spouse of the other person. 38 U.S.C. § 101(3). These federal definitions were not enacted as part of the Defense of Marriage Act (DOMA). Indeed, they were enacted in the mid-1970s-more than two decades before DOMA. The House of Representatives cited Section 101(3) and other statutes to this Court in support of the observation that Congress did not, of course, invent the definition of marriage and the related term 'spouse' in 1996. Rather, in DOMA, Congress merely codified and confirmed what Congress always has meant in using those words. Even before DOMA, whenever Congress used terms connoting a martial relationship, it meant a traditional male-female couple. Memorandum of House of Representatives in Support of Motion to Dismiss at 3 (Doc. 53). That observation remains unquestionably true: Congress in enacting federal law has always used words like "marriage" to mean the legal union of two members of the opposite sex. Section 101(3) also illustrates the important point that Congress does not always treat a person who is married under state or foreign law as married for purposes of federal law. In other words, even before DOMA, Congress did not automatically defer to a state's or foreign nation's recognition of a marriage. Under Section 101(3), a person who was validly married under state or foreign law to a veteran would not be regarded by federal law as the veteran's "surviving spouse" if the person did not "live[] with the veteran continuously from the date of the marriage to the date of the veterans' death." 38 U.S.C. § 101(3). Thus, even before DOMA, having a marriage license issued by a state or a foreign nation did not necessarily mean that the marriage would be recognized for purposes of federal law. See Memorandum in Support of Intervenor's Opposition to Plaintiffs Motion for Summary Judgment at 21-22 (Doc. 50). Finally, we note that the Attorney General's view that Section 101(3) and 101(31) fails heightened scrutiny under equal protection analysis is irrelevant in this case, for two reasons. First, the constitutionality of Section 101(3) and 101(31) is not at issue here as Plaintiff does not contend those statutes operate to deny her any benefits. Second, because the classification drawn in DOMA is subject to rational basis review, as the House has explained in prior briefing, it is irrelevant that the Attorney General now believes Section 101(3) and 101(31) fails heightened scrutiny. Notably, the Attorney General did not say in his letter to Speaker Boehner that Section 101(3) and 101(31) would fail rational basis review. The position of the Department of Justice is that DOMA passes rational basis review. The House of Representatives agrees with that position, and so should this Court. -~····----- ----~··--··----- 1919 M Street, N.W. • Suite 470 • Washington D.C. 20036 Telephone 202.234.0090 • www.bancroftpllc.com • :Facsimile 202.234.2806 Respectfully submitted, H. Christopher Bartolomucci Counsel for the Bipartisan Legal Advisory Group of the U.S. House of Representatives cc (via e-mail): Roberta A. Kaplan James D. Esseks Jean Lin 1919 M Street, N.W. • Suite 470 • Washington D.C. 20036 Telephone 202.234.0090 • www.bancroftpllc.com • Facsimile 202.234.2806