Windsor v. The United States Of America

Filing 23

REPLY to Response to Motion re: 12 MOTION to Intervene a party defendant in this matter for the limited purpose of litigating the constitutionality of Section III of the Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419 (Sept. 21, 1996), codified at 1 U.S.C. § 7. MOTION to Intervene a party defendant in this matter for the limited purpose of litigating the constitutionality of Section III of the Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419 (Sept. 21, 1996), codified at 1 U.S.C. § 7.. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Kircher, Kerry)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
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Plaintiff,
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v.
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THE UNITED STATES OF AMERICA,
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Defendant.
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____________________________________)
EDITH SCHLAIN WINDSOR, in her
capacity as executor of the estate of
THEA CLARA SPYER,

Civil Action No. 10-CV-8435 (BSJ)(JCF)

REPLY OF THE BIPARTISAN LEGAL ADVISORY GROUP
OF THE U.S. HOUSE OF REPRESENTATIVES
TO DEFENDANT’S RESPONSE TO THE MOTION TO INTERVENE
As the Court is aware, the Attorney General announced on February 23, 2011, that the
Department of Justice (the “Department”) would cease defending—including in this case—the
constitutionality of Section III of the Defense of Marriage Act (“DOMA”), Pub. L. No. 104-199,
110 Stat. 2419 (1996), 1 U.S.C. § 7, against attacks that DOMA violates the equal protection
component of the Fifth Amendment. In so announcing, the Attorney General expressly
articulated his intent to “provid[e] Congress a full and fair opportunity to participate in the
litigation in [the] cases [at issue].” Doc. 13-1, Letter from Eric H. Holder, Jr., Att’y Gen., to
Hon. John A. Boehner, Speaker, U.S. House of Representatives at 5-6 (Feb. 23, 2011) (emphasis
added).
On March 9, 2011, the Bipartisan Legal Advisory Group of the U.S. House of
Representatives (the “House”) determined to defend the statute and, taking the Attorney General

at his word, moved to intervene as a party defendant because that is the only way for the House
“fully and fairly” to participate in this litigation. See Doc. 13, Mem. of P. & A. in Supp. of
Unopposed Mot. of . . . House . . . to Intervene for Limited Purpose (Apr. 18, 2011).
On May 5, 2011, the Department responded. See Def.’s Resp. to Mot. to Intervene (May
5, 2011) (“Response”). Notwithstanding its continued professions of non-opposition—“the
United States does not oppose [the House’s] Motion to Intervene,” id. at 1—the Department now
seeks effectively to reduce the House to the status of amicus curiae by questioning the House’s
standing to intervene, id. at 2, by proposing to limit the House to “present[ing] arguments,” id.,
and by asserting a right to act as gatekeeper for the House’s efforts to defend a validly enacted
statute that the Department itself refuses to defend, id. at 2-3.
The Court should reject the Department’s attempt to control the manner in which the
House defends DOMA, including its implied assertion of authority unilaterally to preclude
judicial determination of the constitutionality of legislation. Where, as here, the Department
refuses to carry out its constitutional responsibility to defend a duly enacted federal statute,
Congress is empowered to intervene, without restriction, to defend the statute in order to enable
the judiciary, and not the executive, to make the ultimate determination of the statute’s
constitutionality: “We have long held that Congress is the proper party to defend the validity of
a statute when an agency of government, as a defendant charged with enforcing the statute,
agrees with plaintiffs that the statute is inapplicable or unconstitutional.” INS v. Chadha, 462
U.S. 919, 940 (1983).
*

*

*

1. The Department’s Response begins with the misplaced premise that the House lacks
standing to serve as a party in this litigation. See Resp. at 2 (“Congress’s interest in the
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constitutional validity of a law does not confer standing to enter an action as a party any more
than citizens with a generalized grievance would have standing to do so.”). As an initial matter,
this argument is beside the point. As long as the United States is a defendant in this action (and
the United States will remain a defendant, regardless of the role that the Department chooses to
play or not play in this litigation, until it is dismissed or the case concludes, neither of which has
occurred), the House need not demonstrate any standing whatever. See, e.g., U.S. Postal Serv. v.
Brennan, 579 F.2d 188, 190 (2d Cir. 1978) (“The question of standing in the federal courts is to
be considered in the framework of Article III which restricts judicial power to cases and
controversies. The existence of a case or controversy having been established as between the
[existing parties], there was no need to impose the standing requirement upon the proposed
intervenor [defendant].” (quotation marks, citations, and brackets omitted)); Hoblock v. Albany
Cnty. Bd. of Elections, 233 F.R.D. 95, 97 (N.D.N.Y. 2005) (“[T]here is no Article III standing
requirement in the Second Circuit, with an intervenor only needing to meet the Rule 24(a)
requirements and have an interest in the litigation, if there is already a case or controversy in
existence between the original parties to [the] litigation who have standing.”).1
As a result, neither of the cases cited by the Department is apposite. Valley Forge
Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464,
482-83 (1982), stands only for the unremarkable proposition that status as a U.S. citizen and/or
taxpayer does not alone confer standing to challenge government action (or inaction). And in

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See also, e.g., San Juan Cnty., Utah v. U.S., 503 F.3d 1163, 1172 (10th Cir. 2007) (en
banc) (Article III standing not required for defendant intervention where ongoing case or
controversy); Ruiz v. Estelle, 161 F.3d 814, 830 (5th Cir. 1998) (same).

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Newdow v. U.S. Congress, 313 F.3d 495 (9th Cir. 2002), the Ninth Circuit (not the Second
Circuit) denied the Senate’s request to intervene in an Establishment Clause case that challenged,
among other things, a federal statute inserting the words “under God” into the Pledge of
Allegiance, where (i) the Senate sought to intervene pursuant to a statute that specifically limited
Senate intervention to cases “in which the powers and responsibilities of Congress under the
Constitution . . . are placed in issue” and required that the Senate’s Article III standing be shown
to exist, 2 U.S.C. § 288e(a); and (ii) most importantly, the Department actively was defending
the constitutionality of the statute in the litigation. In so holding, the Ninth Circuit distinguished
a number of cases in which, unlike in Newdow (but exactly like here), a congressional body
successfully intervened to defend the constitutionality of a statute that the Department had
refused to defend. 313 F.3d at 498. Accordingly, neither case supports the Department’s
suggestion that the House lacks standing here, even if standing were required.
In any event, although the Court need not reach this issue, it is clear from Chadha that the
House indeed does have standing. In Chadha, a private party challenged the constitutionality of
a federal statute that the Department declined to defend. Following an appellate ruling on behalf
of the plaintiff, the House and Senate moved to intervene for the purpose of filing a petition for
certiorari. See 462 U.S. at 930 n.5. The appellate court granted that motion, and the Supreme
Court granted the subsequent House and Senate petitions for certiorari, holding (over the
Department’s suggestion otherwise) that “Congress is both a proper party to defend the
constitutionality of [the statute] and a proper petitioner under [the statute governing petitions for
writs of certiorari].” Id. at 939; see also Dep’t Resp. to House & Senate Pets. for Cert., U.S.
House of Representatives v. INS, at *4 (Aug. 28, 1981) (Nos. 80-2170 & 80-2171), 1981 U.S. S.
Ct. Briefs LEXIS 1423. In so holding, the Court made crystal clear that the House and Senate
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had Article III standing: “[A]n appeal must present a justiciable case or controversy under Art.
III. Such a controversy clearly exists . . . because of the presence of the two Houses of Congress
as adverse parties.” 462 U.S. at 931 n.6 (emphasis added). Therefore, when the position of the
Department and the plaintiffs ceases to be adverse as to the constitutionality of a statute, as it has
here, the House has Article III standing.
In keeping with Chadha’s holding, congressional entities—including specifically the
House through its Bipartisan Legal Advisory Group and other leadership groups—repeatedly
have intervened to defend the constitutionality of legislation that the Department has refused to
defend, including but not limited to: In re Koerner, 800 F.2d 1358, 1360 (5th Cir. 1986) (“In
response [to the Justice Department’s support for plaintiff’s constitutional challenge to the
Bankruptcy and Federal Judgeship Act of 1984], the United States Senate and the House
Bipartisan Leadership Group intervened to defend the constitutionality of the 1984 Act.”), and
Ameron, Inc. v. U.S. Army Corps of Eng’rs, 787 F.2d 875, 879, 880 (3d Cir. 1986) (President
Reagan declared Competition in Contracting Act unconstitutional and “upon the advice of the
Attorney General ordered the executive department not to observe it”; the district court, 607 F.
Supp. 962 (D. N.J. 1985), “grant[ed] the motions of the Senate, the Speaker, and the Bipartisan
Leadership Group of the House to intervene as plaintiffs to support the constitutionality of
CICA”), modified 809 F.2d 979 (3d Cir. 1986). See also, e.g., Adolph Coors Co. v. Brady, 944
F.2d 1543, 1545 (10th Cir. 1991); Barnes v. Carmen, 582 F. Supp. 163, 164 (D.D.C. 1984),
rev’d sub nom. Barnes v. Kline, 759 F.2d 21, 22 (D.C. Cir. 1984), vacated on mootness grounds
sub nom. Burke v. Barnes, 479 U.S. 361, 362 (1987); In re Moody, 46 B.R. 231, 233 (Bankr.
M.D.N.C. 1985); In re Tom Carter Enters., Inc., 44 B.R. 605, 606 (Bankr. C.D. Cal. 1984); In re

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Benny, 44 B.R. 581, 583 (Bankr. N.D. Cal. 1984), aff’d in part & dismissed in part, 791 F.2d
712 (9th Cir. 1986).
2. The Department’s suggestion that the House be limited to “present[ing] arguments,”
Resp. at 1-2, also must be rejected. Such a narrow role is not consistent with the status of an
intervenor defendant which, the Supreme Court has made clear, is the proper capacity for the
House once the Department defaulted on its constitutional responsibility to defend DOMA:
“Congress is the proper party to defend the validity of a statute when an agency of government,
as a defendant charged with enforcing the statute, agrees with plaintiffs that the statute is
inapplicable or unconstitutional.” Chadha, 462 U.S. at 940 (emphasis added). And once the
House is permitted to intervene as a party defendant, with full responsibility for defense of a
statute, it must have the same rights as any other party, including the right to take discovery, if
necessary, and the right to appeal or petition for certiorari. See id.; see also, e.g., Coalition of
Arizona/New Mexico Counties for Stable Econ. Growth v. Dep’t of Interior, 100 F.3d 837, 844
(10th Cir. 1996) (affirming grant of intervention: “[T]he right to file a brief as amicus curiae is
no substitute for the right to intervene as a party in the action under Rule 24(a)(2).”).
The Department notes that it supported Supreme Court review of challenged statutes in
Chadha (by filing an appeal) and United States v. Lovett, 328 U.S. 303, 306-07 (1946) (by
petitioning for certiorari). But that is irrelevant because both of those actions predated the
Supreme Court’s opinion in Chadha. Furthermore, the procedural history of Chadha itself
undercuts the Department’s position. In that case, as noted above, the House and Senate moved
to intervene in the appellate proceeding for the purpose of petitioning for certiorari. See 462
U.S. at 930 n.5. The appellate court granted that motion, and—not mentioned by the
Department—the Supreme Court then granted the subsequent House and Senate petitions for
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certiorari, specifically disregarding the Department’s suggestion that its appeal rendered
Congress’s petition for certiorari superfluous: “Congress is . . . a proper petitioner under [the
statute governing petitions for writs of certiorari].” Id. at 939; see also Dep’t Resp. to House &
Senate Pets. for Cert., U.S. House of Representatives v. INS, at *4 (Aug. 28, 1981) (Nos. 80-2170
& 80-2171), 1981 U.S. S. Ct. Briefs LEXIS 1423. As a result, the Department’s appeal was
irrelevant, which is another of way of saying that the Supreme Court flatly has rejected the
Department’s suggestion that the House must be relegated merely to “present[ing] arguments.”
Resp. at 1-2. As to Lovett, the Supreme Court cited that case in Chadha in support of its
statement that “[w]e have long held that Congress is the proper party to defend the validity of a
statute when an agency of government, as a defendant charged with enforcing the statute, agrees
with plaintiffs that the statute is inapplicable or unconstitutional.” Chadha, 462 U.S. at 940
(citing Lovett and Cheng Fan Kwok v. INS, 392 U.S. 206, 210 n.9 (1968)).
3. It follows, therefore, that the House does not need the Department to take “procedural
steps . . . to enable [the House] to present arguments” in defense of DOMA, Resp. at 2; does not
need the Department to file “motions . . . to ensure that this Court can consider arguments on
both sides of the constitutional issue and that the Court has jurisdiction to enter judgment,” id.;
and does not need the Department’s assistance to “invoke the jurisdiction of the Supreme Court,”
id. at 2-3. In short, the House does not need the Department’s blessing or approval to defend
DOMA in such manner as the House deems fit. See Chadha, 462 U.S. at 928, 930 n.5, 931 n.6,
939-40. And it further follows that the Court should decline to sign the proposed Order
submitted by the Department—an Order that would limit the House’s role to activities
“consistent with the Department of Justice’s role in this case as counsel for the United States”—

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inasmuch as there is no basis in law for grafting this opaque and undefined proviso onto an Order
granting the House’s motion.
The disturbing legal implication of the Department’s position here is that it has the power
effectively to preclude judicial determination of a statute’s constitutionality by (i) first refusing
to defend a statute’s constitutionality (an authority as to which it apparently feels there are few
constraints), and (ii) then withholding or withdrawing its “commitment to provide Congress a
full and fair opportunity to participate in the litigation,” Resp. at 2. Denying the House the
ability to intervene, as a full party, to defend the constitutionality of an Act of Congress that the
Department has chosen not to defend would be tantamount, or nearly so, to providing the
executive branch an extra-constitutional post-enactment veto over federal statutes to which it
objects.
The practical implications of the Department’s position are equally disturbing. The
Department has made clear in this case that it will “continue to represent the interests of the
United States throughout th[is] litigation.” Doc. 10-1, Letter from Tony West, Assistant Att’y
Gen., to Hon. Barbara S. Jones (Feb. 24, 2011), attached to Doc. 10, Notice to Ct. by Def. U.S.
of Am. (Feb. 24, 2011). So the Department has a client, and that client is not the House. What
happens when the House’s interest in conducting the litigation in the manner it deems
appropriate diverges from what the Department perceives to be the interests of the executive
branch? What happens, for example, when the House wishes to accelerate or decelerate the
timing of a notice of appeal or a petition for certiorari and the Department, in the interest of its
client, wishes to do the opposite? What happens if the Department decides to file pleadings
challenging the constitutionality of the statute at the same time that the House is trying to defend
the constitutionality of that statute? If the Department cannot even support the House’s effort to
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intervene without, at the same time, trying to hamstring the House, what are the chances that the
Department will get out of the way when it comes time for the House to make substantive
litigation decisions?
The answer is that the Court should decline the Department’s invitation to create
conditions that would strain relations between the legislative and executive branches of the
government, and interfere with the orderly consideration by the judiciary of DOMA’s
constitutionality, by granting the House’s motion to intervene as a full party defendant.2
CONCLUSION
For all the reasons stated above and in its motion to intervene, the House respectfully
requests that the Court grant its motion to intervene as a party defendant and enter its proposed
Order (Doc. 12-1).3

2

Notably, this Court on May 11, 2011, issued a Revised Scheduling Order, which the
Department did not oppose, that is inconsistent with the view that the House is a mere amicus
curiae in this case. See Doc. 22, Revised Scheduling Order. For example, that order requires the
House to make initial disclosures under Federal Rule of Civil Procedure 26, which amici are not
required to do, and likewise allows the House to proffer expert witnesses, move to dismiss, and
oppose plaintiff’s motion for summary judgment. The Revised Scheduling Order cannot be
reconciled with the amicus curiae status that the Department envisions for the House.
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Initially, the House moved to intervene only pursuant to Federal Rule of Civil
Procedure 24(a)(1) and/or (b)(1)(A) because it understood that the motion was unopposed. In
light of the Department’s questioning now of the House’s right to intervene under those
provisions, the House is constrained to point out that intervention also is appropriate here under
Rule 24(a)(2). Under the law of this Circuit: “Rule 24(a), intervention of right, requires that the
proposed intervenor ‘(1) file a timely motion; (2) show an interest in the litigation; (3) show that
its interest may be impaired by the disposition of the action; and (4) show that its interest is not
adequately protected by the parties to the action.’” D’Amato v. Deutsche Bank, 236 F.3d 78, 84
(2d Cir. 2001) (quoting In re Holocaust Victim Assets Litig., 225 F.3d 191, 197 (2d Cir. 2000).
The House plainly satisfies each of those requirements here.

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Respectfully submitted,
/s/ Paul D. Clement
PAUL D. CLEMENT
H. CHRISTOPHER BARTOLOMUCCI
CONOR B. DUGAN
BANCROFT PLLC4
1919 M Street, N.W.
Suite 470
Washington, D.C. 20036
[phone] (telephone)
[phone] (facsimile)
Counsel for the Bipartisan Legal Advisory Group of
the U.S. House of Representatives
OF COUNSEL:
KERRY W. KIRCHER, General Counsel
JOHN D. FILAMOR, Senior Assistant Counsel
CHRISTINE M. DAVENPORT, Senior Assistant Counsel
KATHERINE E. McCARRON, Assistant Counsel
WILLIAM PITTARD, Assistant Counsel
KIRSTEN W. KONAR, Assistant Counsel
OFFICE OF GENERAL COUNSEL
U.S. House of Representatives
219 Cannon House Office Building
Washington, D.C. 20515
[phone] (telephone)
[phone] (facsimile)
May 12, 2011

4

Bancroft PLLC has been “specially retained by the Office of General Counsel” of the
House to litigate the constitutionality of Section III of DOMA on behalf of the House. Its
attorneys are, therefore, “entitled, for the purpose of performing [that] function[], to enter an
appearance in any proceeding before any court of the United States . . . without compliance with
any requirement for admission to practice before such court . . . .” 2 U.S.C. § 130f(a).

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CERTIFICATE OF SERVICE
I certify that on May 12, 2011, I served one copy of the foregoing Reply of the Bipartisan
Legal Advisory Group of the U.S. House of Representatives to Defendant’s Response to the
Motion to Intervene by CM/ECF and by electronic mail (.pdf format) on the following:
Roberta A. Kaplan, Esquire
Andrew J. Ehrlich, Esquire
PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP
1285 Avenue of the Americas
New York City, N.Y. 10019-6064
[e-mail]
[e-mail]
Alexis Karteron, Esquire
Arthur Eisenberg, Esquire
NEW YORK CIVIL LIBERTIES UNION FOUNDATION
James D. Esseks, Esquire
Melissa Goodman, Esquire
Rose A. Saxe, Esquire
AMERICAN CIVIL LIBERTIES UNION FOUNDATION
125 Broad Street
New York City, N.Y. 10004
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
Jean Lin, Esquire
UNITED STATES DEPARTMENT OF JUSTICE, CIVIL DIVISION
20 Massachusetts Avenue, N.W., Seventh Floor
Washington, D.C. 20530
[e-mail]

/s/ Kerry W. Kircher
Kerry W. Kircher