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)

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
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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.

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1919 M Street, N.W. • Suite 470 • Washington D.C. 20036
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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 [phone] • www.bancroftpllc.com • Facsimile 202.234.2806