Windsor v. The United States Of America

Filing 29

MEMORANDUM OF LAW in Support re: 28 MOTION for Summary Judgment.. Document filed by Edith Schlain Windsor. (Ehrlich, Andrew)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
EDITH SCHLAIN WINDSOR, in her
capacity as Executor of the estate of THEA
CLARA SPYER,
Plaintiff,

10 Civ. 8435 (BSJ) (JCF)
ECF Case

v.
THE UNITED STATES OF AMERICA,
Defendant.

MEMORANDUM OF LAW IN SUPPORT OF
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
PAUL, WEISS, RIFKIND, WHARTON
& GARRISON LLP
Roberta A. Kaplan, Esq.
Andrew J. Ehrlich, Esq.
1285 Avenue of the Americas
New York, NY 10019-6064
[phone]
[e-mail]
[e-mail]

AMERICAN CIVIL LIBERTIES UNION
FOUNDATION
James D. Esseks, Esq.
Rose A. Saxe, Esq.
125 Broad Street
New York, NY 10004
[phone]
[e-mail]
[e-mail]
NEW YORK CIVIL LIBERTIES UNION
FOUNDATION
Melissa Goodman, Esq.
Alexis Karteron, Esq.
Arthur Eisenberg, Esq.
125 Broad Street, 19th Floor
New York, NY 10004
[phone]
[e-mail]
[e-mail]
[e-mail]

Attorneys for Plaintiff Edith Schlain Windsor

TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ......................................................................................... iii
PRELIMINARY STATEMENT..................................................................................... 1
FACTUAL AND PROCEDURAL BACKGROUND ..................................................... 3
ARGUMENT ................................................................................................................. 9
I.

THE APPLICABLE STANDARD...................................................................... 9

II.

DOMA IS SUBJECT TO AND CANNOT SURVIVE STRICT OR
INTERMEDIATE SCRUTINY..........................................................................10
A.

Sexual Orientation Discrimination Requires Strict or Intermediate
Scrutiny..................................................................................................11
1.
2.

Sexual Orientation Has No Bearing on Ability to
Participate in or Contribute to Society.........................................16

3.

Sexual Orientation Is a Core Part of Individual Identity and
Is Immutable ...............................................................................17

4.
B.

Lesbians and Gay Men Have Suffered a History of
Discrimination ............................................................................13

Lesbians and Gay Men Lack Political Power...............................20

DOMA Is neither Narrowly Tailored to Serve Any Compelling
Government Interest nor Substantially Related to an Important
Government Interest ...............................................................................23
1.

DOMA Does Not Satisfy Either the Strict or Intermediate
Scrutiny Standard........................................................................23

2.

All of Congress’s Justifications for DOMA Fail..........................24
a)

Preserving “Traditional” Marriage Is Not a
Compelling or Important Government Interest.................25

b)

DOMA Does Not Promote Heterosexuality .....................26

c)

DOMA Does Not Promote Responsible Procreation
or Child-Rearing..............................................................26

d)

DOMA Undermines Democratic Self-Governance ..........28

e)
f)
III.

DOMA Does Not Conserve Resources ............................29
“Moral Disapproval” Is Not a Compelling or
Important Government Interest........................................30

EVEN UNDER RATIONAL BASIS REVIEW, DOMA IS
UNCONSTITUTIONAL....................................................................................31
A.
B.

Congress’s 1996 Justifications for DOMA Fail Rational Basis
Review ...................................................................................................33

C.
IV.

The Applicable Standard ........................................................................32

No Other Rational Basis for DOMA Can Be Asserted ............................37

BAKER v. NELSON IS NEITHER CONTROLLING NOR PERSUASIVE
AUTHORITY ....................................................................................................40

CONCLUSION .............................................................................................................43

ii

TABLE OF AUTHORITIES
CASES

Page(s)

Able v. United States,
968 F. Supp. 850 (E.D.N.Y. 1997) .....................................................................12, 19
Able v. United States,
155 F.3d 628 (2d Cir. 1998) ........................................................................ 12, 13, 19
Adarand Constructors, Inc. v. Peña,
515 U.S. 200 (1995)..................................................................................... 10, 20, 23
Ake v. Wilson,
354 F. Supp. 2d 1298 (M.D. Fla. 2005)....................................................................33
Alexander v. Cahill,
598 F.3d 79 (2d Cir. 2010).......................................................................................41
Alma Society, Inc. v. Mellon,
601 F.2d 1225 (2d Cir. 1979) ...................................................................................23
Baker v. Nelson,
191 N.W.2d 185 (Minn. 1971) .................................................................................41
Baker v. Nelson,
409 U.S. 810 (1972)...........................................................................................40, 41
In re Balas,
No. 2:11-BK-17831 (TD), 2011 WL 2312169 (Bankr. C.D. Cal. June 13, 2011) .......3, 33
Board of Trustees of the University of Alabama v. Garrett,
531 U.S. 356 (2001).................................................................................................32
Beard v. Banks,
548 U.S. 521 (2006).................................................................................................. 9
Bowen v. Gilliard,
483 U.S. 587 (1987)...........................................................................................12, 20
Bush v. Vera,
517 U.S. 952 (1996).................................................................................................41
Christian Legal Society Chapter of the University of California, Hastings College
of the Law v. Martinez,
130 S. Ct. 2971 (2010).......................................................................................11, 18
City of Cleburne v. Cleburne Living Center,
473 U.S. 432 (1985)..........................................................................................passim
iii

Clark v. Jeter,
486 U.S. 456 (1988).................................................................................................23
Dean v. District of Columbia,
653 A.2d 307 (D.C. 1995)........................................................................................14
Dragovich v. United States Department of the Treasury,
No. 10-01564 (CW), 2011 WL 175502 (N.D. Cal. Jan. 18, 2011) ................ 30, 33, 35
Estate of Goldwater v. Commissioner of Internal Revenue,
539 F.2d 878 (2d Cir. 1976)...................................................................................... 7
In re Estate of Ranftle,
81 A.D.3d 566 (1st Dep’t 2011)................................................................................ 6
Frontiero v. Richardson,
411 U.S. 677 (1973)............................................................................... 12, 15, 16, 21
Gill v. Office of Personnel Management,
699 F. Supp. 2d 374 (D. Mass. 2010) ................................................................passim
In re Golinski,
587 F.3d 901 (9th Cir. 2009)...............................................................................................3
Goodridge v. Department of Public Health,
798 N.E.2d 941 (Mass. 2003)...................................................................................25
Graham v. Richardson,
403 U.S. 365 (1971)...........................................................................................18, 30
Green Party of Connecticut v. Garfield,
616 F.3d 213 (2d Cir. 2010).....................................................................................41
Hernandez-Montiel v. Immigration and Naturalization Service
225 F.3d 1084 (9th Cir. 2000)..................................................................................19
High Tech Gays v. Defense Industrial Security Clearance Office,
909 F.2d 375 (9th Cir. 1990)....................................................................................21
Illinois Board of Elections v. Socialist Workers Party,
440 U.S. 173 (1979).................................................................................................41
Johnson v. Robison,
415 U.S. 361 (1974).................................................................................................12
In re Kandu,
315 B.R. 123 (W.D. Wa. 2004)..........................................................................33, 42

iv

Kerrigan v. Commissioner of Public Health,
957 A.2d 407 (Conn. 2008)...............................................................................passim
Kimel v. Florida Board of Regents,
528 U.S. 62 (2000)...................................................................................................17
Lamprecht v. Federal Communications Commission,
958 F.2d 382 (D.C. Cir. 1992) .................................................................................14
Lawrence v. Texas,
539 U.S. 558 (2003) .........................................................................................passim
In re Levenson,
587 F.3d 925 (9th Cir. 2009)......................................................................................passim
Lofton v. Secretary of the Department of Children and Family Services,
358 F.3d 804 (11th Cir. 2004)..................................................................................13
Log Cabin Republicans v. United States,
716 F. Supp. 2d 884 (C.D. Cal. 2010) ......................................................................22
Loper v. New York City Police Department,
999 F.2d 699 (2d Cir. 1993)...................................................................................... 9
Lyng v. Castillo,
477 U.S. 635 (1986).................................................................................................12
Mandel v. Bradley,
432 U.S. 173 (1977)................................................................................................ 41
In re Marriage Cases,
183 P.3d 384 (Cal. 2008) ............................................................................. 12, 14, 19
In the Matter of the Marriage of J.B. and H.B.,
326 S.W.3d 654 (Tex. App. 2010) ...........................................................................41
Martinez v. County of Monroe,
850 N.Y.S.2d 740 (4th Dep’t 2008) .......................................................................... 7
Massachusetts Board of Retirement v. Murgia,
427 U.S. 307 (1976).................................................................................... 12, 13, 18
Matthews v. Lucas,
427 U.S. 495 (1976) ................................................................................................12
Morse v. Republican Party of Virginia,
517 U.S. 186 (1996).................................................................................................41

v

Myers v. County of Orange,
157 F.3d 66 (2d Cir. 1998).......................................................................................32
Neill v. Gibson,
278 F.3d 1044 (10th Cir. 2001) ................................................................................13
Parham v. Hughes,
441 U.S. 347 (1979).................................................................................................17
Pedersen v. Office of Personnel Management,
No. 3:10-cv-1750 (VLB) (D. Conn.) ......................................................................... 9
Perry v. Schwarzenegger,
704 F. Supp. 2d 921 (N.D. Cal. 2010) .......................................................... 11, 13, 14
Plyler v. Doe,
457 U.S. 202 (1982)..........................................................................................passim
Rinaldi v. Yeager,
384 U.S. 305 (1966).................................................................................................32
Romer v. Evans,
517 U.S. 620 (1996)..........................................................................................passim
Rowland v. Mad River Local School District,
470 U.S. 1009 (1985)...............................................................................................13
San Antonio Independent School District v. Rodriguez,
411 U.S. 1 (1973) ........................................................................................ 12, 18, 21
Shapiro v. Thompson,
394 U.S. 618 (1969).................................................................................................30
Sharif v. New York State Education Department,
709 F. Supp. 345 (S.D.N.Y. 1989) ...........................................................................32
Shaw v. Hunt,
517 U.S. 899 (1996).................................................................................................23
Smelt v. County of Orange,
374 F. Supp. 2d 861 (C.D. Cal. 2005) ................................................................33, 42
Tester v. City of New York,
No. 95 Civ. 7972 (LMM), 1997 WL 81662 (S.D.N.Y. Feb. 25, 1997)......................13
United States Department of Agriculture v. Moreno,
413 U.S. 528 (1973).................................................................................................31

vi

United States v. Brennan,
No. 08-5171-cv (L), 2011 WL 1679850 (2d Cir. May 5, 2011) ................................23
United States v. Carolene Products Company,
304 U.S. 144 (1938)...........................................................................................11, 21
United States v. Virginia,
518 U.S. 515 (1996)..........................................................................................passim
Varnum v. Brien,
763 N.W.2d 862 (Iowa 2009)....................................................................... 14, 19, 25
Watkins v. United States Army,
875 F.2d 699 (9th Cir. 1989)..............................................................................13, 19
Williams v. Illinois,
399 U.S. 235 (1970).................................................................................................25
Witt v. United States Department of the Air Force,
739 F. Supp. 2d 1308 (W.D. Wash. 2010)................................................................22
STATUTES
Defense of Marriage Act (“DOMA”), Section 3, 1 U.S.C. § 7 (2006) .....................passim
26 U.S.C. § 2010(c) (Supp. 2010)................................................................................... 7
26 U.S.C. § 2056(a) (2006)............................................................................................. 7
OTHER AUTHORITIES
Cong. Budget Off., U.S. Cong., The Potential Budgetary Impact of Recognizing
Same-Sex Marriages 1 (June 21, 2004) .............................................................29, 35
Defense of Marriage Act: Hearing on H.R. 3396 Before the Subcomm. on the
Const. of the H. Comm. on the Judiciary, 104th Cong. 1 (1996)...............................27
Fed. R. Civ. P. 56(a) ....................................................................................................... 9
Fifth Amendment to the United States Constitution ...............................................1, 8, 29
H.R. Rep. No. 104-664 (1996).................................................................................24, 30
H.R. Rep. No. 97-201 (1981).......................................................................................... 7
Rev. Rul. 58-66, 1958-1 C.B. 60..................................................................................... 7
S. Rep. No. 97-144 (1981) .............................................................................................. 7

vii

Plaintiff Edith Schlain Windsor respectfully submits this memorandum of
law in support of her motion for summary judgment.
PRELIMINARY STATEMENT
Edith Schlain Windsor, or Edie, is the sole executor of the estate of her
late spouse, Thea Clara Spyer. Prior to Thea’s death in February 2009, Edie and Thea
spent over four decades together in a loving, committed union. At the beginning of their
relationship, in 1965, neither Thea nor Edie imagined that they would have the
opportunity to legally marry. But Edie and Thea had the courage and self-respect to get
engaged and, after an engagement that lasted more than forty years, Edie and Thea were
finally wed in May 2007.
Sadly, Edie and Thea were able to spend less than two years as a married
couple before Thea passed away at the age of 77. Then, while grieving the loss of the
love of her life, Edie also had to face the injustice of the federal government’s refusal to
recognize her marriage. Under Section 3 of the Defense of Marriage Act, or DOMA,
which requires the federal government to disregard marriages that are valid under state
law if they are not between one man and one woman, the federal government treated Edie
and Thea as if they were legal strangers.
Because of DOMA, the federal government imposed more than $363,000
in federal estate tax on Thea’s estate, significantly reducing Edie’s inheritance. Yet, if
“Thea” were instead “Theo,” her estate would have passed to Edie tax-free. For Edie and
Thea, the “tax” for being gay exceeded $363,000.
This disparate treatment violates Edie’s right to the equal protection of the
laws that is guaranteed by the Fifth Amendment to the United States Constitution.

1

Indeed, because of the patent nature of this constitutional violation, the President of the
United States and his Department of Justice have declined to defend this lawsuit.
DOMA is a sweeping statute that rewrites over one thousand federal laws
and overturns the federal government’s long-standing practice of deferring to state
determinations of marital status. Throughout the history of this country, the federal
government has never married people, leaving that to the states. The federal government
nevertheless has attached 1,138 different protections or responsibilities to marriage, and
has always deferred to the states’ determinations of whether a couple is validly married,
despite significant variation in marriage laws from state to state. That practice changed
in 1996, when, following a decision from the Hawaii Supreme Court which Congress
feared would lead to same sex-couples actually having the opportunity to marry, the
federal government explicitly differentiated among valid state marriages, and preemptively refused recognition of the otherwise valid marriages of gay and lesbian couples
for all federal purposes. Since DOMA’s passage fifteen years ago, five states and the
District of Columbia now allow same-sex couples to marry, and several other states,
including New York, recognize marriages of same-sex couples performed elsewhere.
Yet, the federal government continues to denigrate these state-approved marriages
through DOMA’s exclusion of these marriages from all federal protections and
obligations.
At its core, this case presents a straightforward question of constitutional
law: Should the government be permitted to levy a substantial estate tax upon Edie
Windsor simply because, as a lesbian, she was married to a woman, instead of a man?
That it has taken until the second decade of the twenty-first century for the Attorney

2

General of the United States and several other federal courts1 to see the obvious
impermissibility of such blatant discrimination under the United State Constitution
speaks, we respectfully contend, more to the lingering legacy of stereotypes and prejudice
than it does to the difficulty of the constitutional principles at issue. As Justice Kennedy
so presciently observed in the landmark case of Lawrence v. Texas: “[T]hose who drew
and ratified the [Constitution] . . . knew times can blind us to certain truths and later
generations can see that laws once thought necessary and proper in fact serve only to
oppress.

As the Constitution endures, persons in every generation can invoke its

principles in their own search for greater freedom.” 539 U.S. 558, 578 (2003).
FACTUAL AND PROCEDURAL BACKGROUND
Before the modern gay rights movement began, at a time when lesbians
and gay men faced dangerous prejudice if they disclosed their sexual orientation, Edie
Windsor and Thea Spyer met, fell in love, and began a committed relationship that would
last until Thea’s death, forty-four years later.
Edie and Thea’s Engagement & Marriage
Edie and Thea first met in 1963 at a restaurant in Greenwich Village
which was one of the few places in New York City accepting of lesbian and gay clientele.
Affidavit of Edith Schlain Windsor (“Windsor Aff.”) ¶ 5. Edie, who was working long
hours at her job at IBM as one of the first software programmers, called an old friend and
asked her to take her “where the lesbians go.” Id. The night they met, Edie and Thea
1

See Letter of Att’y Gen. Holder to Speaker Boehner of the U.S. House of Rep. (Feb.
23, 2011) [hereinafter Holder Letter]; Gill v. Office of Pers. Mgmt., 699 F. Supp. 2d
374 (D. Mass. 2010); In re Levenson, 587 F.3d 925 (9th Cir. 2009) (Reinhardt, J.); In re
Golinski, 587 F.3d 901 (9th Cir. 2009) (Kozinski, J.); In re Balas, No. 2:11-BK-17831
(TD), 2011 WL 2312169 (Bankr. C.D. Cal. June 13, 2011).

3

spent the whole time dancing together; by the end of the evening, Edie had danced a hole
through the bottom of her stockings. Id.
After a few chance encounters over the next two years, Edie begged
friends for a place to stay on the East End of Long Island for Memorial Day weekend to
ensure that she would see Thea, who was renting a place there for the summer. Id. ¶¶ 6–
7. When they met again that weekend and Thea asked Edie what she wanted from her,
Edie’s response was simple: “Not much. I’d like to date for a year. And if that goes the
way it is now, I think I’d like to be engaged, say for a year. And if it still feels this goofy
joyous, I’d like us to spend the rest of our lives together.” Id. ¶ 9. And so began a
committed relationship that lasted for the next forty-four years.
Thea and Edie’s life together was full of joy and passion. Id. ¶ 14. They
traveled in the United States and abroad, and entertained frequently. Id. Thea, a clinical
psychologist and an accomplished cook, would prepare elaborate meals for their friends
on holidays and at other times, including annual celebrations of their anniversary every
Memorial Day weekend.

Id.

They grew closer together as a couple, and they

independently thrived professionally and personally. Id. And, of course, they continued
to dance. Id. ¶¶ 16, 19.
In 1967, there was no legal recognition for same-sex couples in the United
States and little hope for immediate change. Id. ¶ 10. Even so, after having been
together for two years, Thea asked Edie to marry her. Id. Of course, they knew that they
could not legally marry. Id. They also faced tremendous pressure—as did all lesbians
and gay men at that time—to conceal their relationship from their co-workers, society,
and their family and friends, for fear of insult and discrimination. Id. ¶ 11. For example,

4

instead of an engagement ring, Thea gave Edie a circular diamond pin to signify their
commitment to one another, because a ring would have been hard to explain to others.
Id. ¶ 10. Six months later, they moved together into a Greenwich Village apartment. Id.
¶ 12. In 1968, they bought a small summer cottage on Long Island, which was where
they spent many of their happiest moments, and where Edie cared for Thea in her final
years. Id. ¶¶ 13, 16.
In 1993, when New York City began registering domestic partnerships,
Edie and Thea were one of the first couples to register—they were the eightieth couple to
receive such recognition. Id. ¶¶ 21–22. Although Thea had appointments with patients
scheduled all day long, Edie had little patience, prompting, “I have waited more than
twenty-eight years for this day, and I am not waiting a single day more!” Id. ¶ 22. That
was all it took. Thea cleared her schedule and bought flowers. Id. While they were
elated to have some recognition after such a long time together, the limited protections
and obligations of a New York City domestic partnership were no substitute for marriage.
Id. ¶ 23.
Over the years, health problems began to plague Thea and, indirectly,
Edie. Id. ¶¶ 15–20. In 1977, twelve years after their relationship began, Thea was
diagnosed with Progressive Multiple Sclerosis, or MS, a chronic disease of the central
nervous system that causes gradually worsening and irreversible neurological damage
and paralysis. Id. ¶ 15. But Edie and Thea refused to give up on the life they had built
together. Id. ¶ 16. Thea reinvented herself with each year of her increasing physical
disability, working to maintain a life that was full and active. Id. Edie committed herself
to ensuring that their lives remained full of joy and passionate commitment. Id. Edie

5

nursed, encouraged, and supported Thea as her disability caused ever-increasing
paralysis—first requiring a cane, then crutches, then a manual wheelchair, then a
motorized wheelchair that Thea could operate with her remaining usable hand. Id. ¶ 17.
In 2002, Thea suffered a heart attack and was diagnosed with another
serious medical condition, aortic stenosis, the narrowing of the aortic valve of the heart.
Id. ¶ 24. Because of the near complete paralysis that had resulted from her MS, Thea was
not willing to undergo the lengthy hospitalization that would have resulted from surgery
to fix the valve. Id. The doctors told Edie and Thea that Thea did not have long to live.
Id.
In 2007, as Thea’s condition worsened, it was clear that Thea would not
live long enough for them to have the opportunity to marry in New York. Id. ¶ 25. Thus,
with a physician and other friends, Thea, then 75, and Edie, then 77, traveled to Toronto,
Canada, and were married on May 22, 2007. Id. ¶ 26. They spent two difficult, but
loving years together as a married couple before Thea died on February 5, 2009. Id. ¶ 28.
After Thea’s passing, Edie was hospitalized with stress cardiomyopathy, an ailment
commonly known as “broken heart syndrome,” which has caused serious, irreversible
damages to her heart. Id. ¶¶ 29.
Thea’s Estate and the Burdens of DOMA
After Thea died, her Last Will and Testament, dated September 7, 2004,
was admitted to probate by the Surrogate’s Court of New York County (Index No. 20091162), and Edie was appointed as executor of Thea’s estate on April 24, 2009. Id. ¶ 30.
Thea’s estate passed for Edie’s benefit. Id. ¶¶ 31–32.
Under New York’s marriage recognition rule, Edie and Thea’s legal
Canadian marriage is recognized as valid in New York. See In re Estate of Ranftle, 81
6

A.D.3d 566 (1st Dep’t 2011) (recognizing validity under New York law, for purposes of
probating will, of Canadian marriage of same-sex couple); Martinez v. Cnty. of Monroe,
850 N.Y.S.2d 740 (4th Dep’t 2008).

Solely because of the operation of DOMA,

however, the federal government does not recognize their marriage, as New York State
does. Consequently, because Thea’s taxable estate and adjusted taxable gifts exceeded
the applicable exclusion amount set forth in 26 U.S.C. § 2010(c) (Supp. 2010), a federal
estate tax was imposed on Thea’s estate that would not otherwise have been imposed if
Edie and Thea’s marriage were recognized under federal law.
More specifically, under 26 U.S.C. § 2056(a), property that passes from a
decedent to a surviving spouse generally passes free of any federal estate tax. Congress
enacted this unlimited marital deduction three decades ago to eliminate what the House
Ways and Means Committee called the “widow’s tax,” which fell “most heavily on
widows” who were “subject to estate taxes even though the property remains within the
marital unit.”

H.R. Rep. No. 97-201, at 159 (1981).

In justifying the unlimited

deduction, the Committee explained that “an individual should be free to pass his entire
estate to a surviving spouse without the imposition of any additional tax.” Id.; see also S.
Rep. No. 97-144, at 127 (1981).
Ordinarily, whether a couple is married for purposes of applying the estate
tax marital deduction depends on whether the couple is considered validly married under
the law of the state of decedent’s domicile at the time of death. See, e.g., Estate of
Goldwater v. Comm’r, 539 F.2d 878 (2d Cir. 1976) (relying on New York law to
determine status of “surviving spouse” for purposes of estate tax marital deduction), cert.
denied sub nom., Lipkowitz v. Comm’r, 429 U.S. 1023 (1976); cf. Rev. Rul. 58-66, 1958-

7

1 C.B. 60, 60 (“The marital status of individuals as determined under state law is
recognized in the administration of the Federal income tax laws.”). Although the estate
tax marital deduction applies on its face to all lawfully married couples, married samesex couples alone are denied its protections because, pursuant to DOMA, the federal
government refuses to recognize their marriages. More specifically, Section 3 of DOMA
provides, in relevant part, that “[i]n 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 a direct result of the federal government’s unconstitutional exclusion of
same-sex surviving spouses from the protections of the estate tax marital deduction,
$363,053.00 in federal estate tax was imposed on Thea’s estate, which Edie paid in her
capacity as executor of Thea’s estate.
The Instant Lawsuit
On November 9, 2010, Edie filed this lawsuit, seeking a refund of the
federal estate tax levied on and paid by Thea’s estate and a declaration that Section 3 of
DOMA violates the equal protection guarantee secured by the Fifth Amendment to the
United States Constitution.
On

February

23,

2011,

after

having

carefully

considered

the

constitutionality of Section 3 of DOMA, the President and the Attorney General
announced that they had determined that heightened scrutiny is the appropriate standard
of review for government classifications based on sexual orientation and that, under that

8

standard, Section 3 of DOMA is unconstitutional. As the Attorney General explained in
his letter to Congress:
[T]he legislative record underlying DOMA’s passage
contains discussion and debate that undermines any defense
under heightened scrutiny. The record contains numerous
expressions reflecting moral disapproval of gays and
lesbians and their intimate and family relationships—
precisely the kind of stereotype-based thinking and animus
the Equal Protection Clause is designed to guard against.
Holder Letter, at 4.

Accordingly, the Executive Branch decided to stop defending

DOMA in this case, as well as in a companion case filed in the District of Connecticut,
Pedersen v. Off. Pers. Mgmt., No. 3:10-cv-1750 (D. Conn.).
Following that announcement, on April 18, 2011, the Bipartisan Legal
Advisory Group of the U.S. House of Representatives, or BLAG, moved to intervene for
the limited purpose of defending the constitutionality of Section 3 of DOMA. On May
11, 2011, the Court established a discovery and briefing schedule. BLAG’s motion to
intervene was granted on June 2, 2011.
ARGUMENT
I.
THE APPLICABLE STANDARD
Summary judgment is appropriate where the pleadings, the discovery
materials, and any affidavits show “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); see also
Beard v. Banks, 548 U.S. 521, 529, 534 (2006) (granting summary judgment in
constitutional challenge); Loper v. New York City Police Dep’t, 999 F.2d 699 (2d Cir.
1993) (affirming summary judgment entered by district court declaring state statute
unconstitutional).
9

Since it is undisputed that Edie has been injured by virtue of having to pay
a $363,000 estate tax, the only issue in this case is whether her injury violates the
Constitution’s equal protection guarantee. To overcome summary judgment under strict
scrutiny, BLAG must persuade this Court that there is a genuine issue of material fact as
to whether Section 3 of DOMA is narrowly tailored to further a compelling government
interest.

See Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 227 (1995).

Alternatively, under the more lenient rational basis test, BLAG must, at the very least,
demonstrate that there is a dispute of fact as to whether Section 3 rationally advances a
legitimate government purpose. See City of Cleburne v. Cleburne Living Ctr., 473 U.S.
432, 440 (1985).
Because, as demonstrated below, BLAG cannot come close to satisfying
either of these standards to justify the overt discrimination that occurred here, the Court
should grant summary judgment for Plaintiff.
II.
DOMA IS SUBJECT TO AND CANNOT SURVIVE
STRICT OR INTERMEDIATE SCRUTINY __
DOMA classifies legally married couples into two distinct groups—
married straight couples, and married gay couples—and subjects the latter to disparate
treatment by, among other things, denying them over 1,000 federal protections and
obligations. Never before, or since, has the federal government categorically disregarded
state determinations of who is validly married and substituted its own definition.
Accordingly, to defend DOMA, BLAG must justify DOMA’s discriminatory treatment of

10

married same-sex couples, which is a departure from the government’s long-standing
practice of deferring to state definitions of marriage.2
As the Supreme Court clearly has recognized, treating lesbians and gay
men differently than straight people is sexual orientation discrimination. Christian Legal
Soc’y Chapter of the Univ. of Cal., Hastings Coll. of the Law v. Martinez (“CLS”), 130
S. Ct. 2971, 2990 (2010). Because DOMA is discriminatory federal legislation directed
at an historically and politically marginalized class of people based on an immutable
characteristic irrelevant to their ability to contribute to society, the Constitution requires
DOMA be subjected to strict, or at the very least, intermediate scrutiny. As the President
and Attorney General have already concluded, DOMA cannot survive such searching
review.

(Nor can DOMA survive even rational basis review, as Part III, infra,

demonstrates.)
A.

Sexual Orientation Discrimination Requires Strict or Intermediate Scrutiny
Most

legislative

classifications

come

with

a

presumption

of

constitutionality, and the courts generally “will not presume that any given legislative
action . . . is rooted in considerations that the Constitution will not tolerate.” City of
Cleburne, 473 U.S. at 446. Certain kinds of classifications, however, carry a particularly
high risk of improper use in the legislative process, and are therefore treated as “suspect”
or “quasi-suspect.” Cf. United States v. Carolene Prods. Co., 304 U.S. 144, 153 n.4
(1938).
2

The issue here is thus different from Perry v. Schwarzenegger, 704 F. Supp. 2d 921
(N.D. Cal. 2010), and other cases seeking the freedom to marry for same-sex couples.
The only question at issue in this case is what possible justification the government
might have for singling out and disregarding one group of valid marriages for all
federal purposes.

11

In a long line of cases, the Supreme Court has developed a test for
determining whether a legislative classification should be treated with this kind of
suspicion and subjected to heightened scrutiny.3 Under this test, the essential criteria are
that: “(1) the group has suffered a history of invidious discrimination; and (2) the
characteristics that distinguish the group’s members bear no relation to their ability to
perform or contribute to society.” Kerrigan v. Comm’r of Pub. Health, 957 A.2d 407,
426 (Conn. 2008) (explaining U.S. Supreme Court’s jurisprudence) (internal citations and
quotation marks omitted); see also, e.g., Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 313
(1976) (per curiam); United States v. Virginia, 518 U.S. 515, 532–33 (1996).

In

assessing whether a group is subject to strict or intermediate scrutiny, courts sometimes
also consider whether the characteristic that defines the group is immutable or “so
integral an aspect of one’s identity [that] it is not appropriate to require a person to
repudiate or change [it] . . . in order to avoid discriminatory treatment,” In re Marriage
Cases, 183 P.3d 384, 442 (Cal. 2008); see also Able v. United States, 968 F. Supp. 850,
863–64 (E.D.N.Y. 1997), rev’d on other grounds, 155 F.3d 628, 632 (2d Cir. 1998), and
whether the group is a minority or comparatively politically powerless, Bowen v.
Gilliard, 483 U.S. 587, 602–03 (1987); City of Cleburne, 473 U.S. at 442–46.

3

See, e.g., San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28 (1973) (wealth);
Frontiero v. Richardson, 411 U.S. 677, 684–88 (1973) (plurality opinion) (sex);
Johnson v. Robison, 415 U.S. 361, 375 n.14 (1974) (conscientious objectors); Mass.
Bd. of Ret. v. Murgia, 427 U.S. 307, 313 (1976) (per curium) (age); Matthews v.
Lucas, 427 U.S. 495, 505–06 (illegitimacy) (1976); City of Cleburne, 473 U.S. at
440–41 (mental disability); Lyng v. Castillo, 477 U.S. 635, 638 (1986) (close
relatives).

12

No single factor is dispositive.

Murgia, 427 U.S. at 321 (internal

quotation marks omitted). Instead, the existence of any one of these factors can serve as
a warning sign that a particular classification “provides no sensible ground for differential
treatment,” City of Cleburne, 473 U.S. at 440, or is “more likely than others to reflect
deep-seated prejudice rather than legislative rationality in pursuit of some legitimate
objective,” Plyler v. Doe, 457 U.S. 202, 216 n.14 (1982).
Neither the Supreme Court nor the Second Circuit has yet articulated the
level of scrutiny that should apply to laws like DOMA that discriminate based on sexual
orientation.4 However, it is plain that “gays and lesbians are the type of minority strict
scrutiny was designed to protect.” Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 997
(N.D. Cal. 2010) (citing Murgia, 427 U.S. at 313). At the very least, intermediate
scrutiny should apply to such laws. See Virginia, 518 U.S. at 573–74; Kerrigan, 957
A.2d at 426 (listing factors for quasi-suspect status).
1.

Lesbians and Gay Men Have Suffered a History of Discrimination
The long history of purposeful discrimination that lesbians and gay men

have suffered at the hands of both governmental and private actors is both painfully clear
and undisputed in this case. To our knowledge, no court has ever found to the contrary.
See Rowland v. Mad River Local Sch. Dist., 470 U.S. 1009, 1014–15 (1985) (Brennan &
4

See Able v. United States, 155 F.3d 628, 632 (2d Cir. 1998); Tester v. City of New
York, No. 95 Civ. 7972 (LMM), 1997 WL 81662, at *5 (S.D.N.Y. Feb. 25, 1997);
Holder Letter at 1. Although several courts of appeal have declined to find that
sexual orientation classifications are suspect or quasi-suspect, many of these
decisions rest on previous circuit precedent or on pre-Lawrence cases. See, e.g.,
Lofton v. Sec’y of Dep’t of Children & Family Servs., 358 F.3d 804, 818 n.16 (11th
Cir. 2004) (citing ten cases, all decided before Lawrence, that denied heightened
scrutiny to laws that classify based on sexual orientation).

13

Marshall, JJ., dissenting from denial of writ of certiorari).5 This extensive history of
discrimination suggests that any legislative burdens placed on lesbians and gay men “are
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.
As set forth in the expert affidavit of Professor George Chauncey, in early
colonial America, being identified as an individual who had same-sex sexual relations
could endanger one’s life: the strong influence of Puritanism led to the execution of
several men for the crime of sodomy. Expert Affidavit of George Chauncey, Ph.D.
(“Chauncey Aff.”) ¶ 19.6

Well into the twentieth century, the medical community

condemned homosexuality as a “mental defect” or “disease.”

Id. ¶¶ 26–27.

This

ostensibly scientific view (now rejected) helped legitimize much anti-gay bias. Id. The
early twentieth century also saw the passage of state and local laws directed at preventing
lesbians and gay men from gathering together. Id. ¶¶ 29, 36–38.

5

See also Neill v. Gibson, 278 F.3d 1044, 1065–67 (10th Cir. 2001) (Lucero, J.,
dissenting); Watkins v. U.S. Army, 875 F2d 699, 724 (9th Cir. 1989) (Norris, J.,
concurring); Perry, 704 F. Supp. 2d at 996; Varnum v. Brien, 763 N.W.2d 862, 889–
90 (Iowa 2009); In re Marriage Cases, 183 P.3d at 442; Kerrigan, 957 A.2d at 434;
Dean v. Dist. of Columbia, 653 A.2d 307, 344–45 (D.C. 1995) (Ferren, J., dissenting
in part); Expert Affidavit of George Chauncey, Ph.D. ¶¶ 10–55, 65–86, 90–103;
Holder Letter at 2.

6

It is appropriate for the Court to consider the parties’ expert affidavits and the factual
record in this case because district courts are empowered to make findings of fact as
to constitutional questions. Lamprecht v. FCC, 958 F.2d 382, 392 (D.C. Cir. 1992)
(Thomas, J.) (“We know of no support . . . for the proposition that if the
constitutionality of a statute depends in part on the existence of certain facts, a court
may not review a legislature’s judgment that the facts exist. If a legislature could
make a statute constitutional simply by ‘finding’ that black is white or freedom,
slavery, judicial review would be an elaborate farce. At least since Marbury v.
Madison . . . that has not been the law.”).

14

In the domain of federal service, despite the pressing need for soldiers, the
military systematically attempted to screen out lesbians and gay men from the armed
forces during World War II, and to discharge and deny benefits to those soldiers who
were “discovered” later. See id. ¶¶ 39–41. Such discrimination was not limited to the
military. All federal agencies were prohibited from hiring lesbians and gay men after the
war (a ban that lasted until 1975), and the federal government engaged in far-reaching
surveillance and investigation to identify and purge supposed “homosexuals” from the
federal civil service. See id. ¶¶ 42–50. With such blatant official discrimination, it is no
surprise that lesbians and gay men were demonized by the media through the 1950s and
1960s. See id. ¶¶ 51–55.
The slightest advancement for civil rights for lesbians and gay men has
been met with vicious anti-gay backlash. See id. ¶¶ 66–68; Expert Affidavit of Gary
Segura, Ph.D. (“Segura Aff.”) ¶¶ 35–44. Campaigns have spread false stereotypes of
lesbians and gay men as child molesters, unfit parents, and threats to heterosexuals—
stereotypes that linger to this day.

See Chauncey Aff. ¶¶ 68–86.

Unfortunately,

discrimination against lesbians and gay men is not a historical relic. Indeed, until judicial
intervention in 2003, states were able to “demean [lesbians’ and gay men’s] existence or
control their destiny by making their private sexual conduct a crime.” Lawrence, 539
U.S. at 578. To this day, lesbians and gay men are subjected to continued opprobrium
from leading political and religious figures and the ever-present threat of anti-gay
violence. Chauncey Aff. ¶¶ 91–102. The Supreme Court has long recognized that such
an extensive history of discrimination supports the application of heightened scrutiny.

15

See, e.g., Virginia, 518 U.S. at 531–32 (noting the “long and unfortunate history of sex
discrimination”) (quoting Frontiero v. Richardson, 411 U.S. 677, 684 (1973)).
In short, it is difficult to imagine how BLAG, or indeed anyone else, could
seriously dispute the history of discrimination suffered by gay men and lesbians.
2.

Sexual Orientation Has No Bearing on Ability to Participate in or
Contribute to Society
Classifications based on a “characteristic” that “frequently bears no

relation to ability to perform or contribute to society” further reinforce the need for
heightened scrutiny because such classifications are rarely a legitimate basis for
government decisionmaking. Frontiero, 411 U.S. at 686; accord Plyler, 457 U.S. at 216
n.14 (“Classifications treated as suspect tend to be irrelevant to any proper legislative
goal.”); City of Cleburne, 473 U.S. at 440–41 (noting that classifications that do not
“rest[] on meaningful considerations” require heightened scrutiny).
As Plaintiff’s uncontradicted expert observes, a person’s sexual
orientation is not correlated with any “‘impairment in judgment, stability, reliability, or
general social and vocational capabilities.’” Expert Affidavit of Letitia Anne Peplau,
Ph.D (“Peplau Aff.”) ¶ 30 (quoting Am. Psychiatric Ass’n, Position Statement on
Homosexuality and Civil Rights, 60 Am. J. Psychiatry 436, 497 (1974)). Indeed, “[b]eing
gay or lesbian has no inherent association with a person’s ability to participate in or
contribute to society.” Peplau Aff. ¶ 29. Obviously, few if any people today would
seriously contend that an individual’s ability to be a judge, a lawyer, a doctor, a scientist,
or even a software programmer is in any way affected by the fact that he or she is
heterosexual, gay, or lesbian. The only people who might take that position are those
who still view homosexuality as a mental disorder, but the medical profession rejected

16

that conclusion almost forty years ago. Peplau Aff. ¶ 30 (citing Gregory M. Herek &
Linda D. Garnets, Sexual Orientation and Mental Health, 3 Ann. Rev. Clinical Psycol.
353, 354 (2007)); cf. City of Cleburne, 473 U.S. at 442–43 (holding that classifications
based on disabilities are not suspect because mental and physical disabilities are relevant
to a person’s ability to participate in society).
In light of the overwhelming and undisputed record, it is clear that sexual
orientation bears no relation to an individual’s ability to perform or contribute to society.
Sexual orientation thus plainly satisfies the two essential heightened scrutiny factors.
3.

Sexual Orientation Is a Core Part of Individual Identity and Is
Immutable
In addition to the two essential heightened scrutiny factors discussed

above, sexual orientation classifications also satisfy the alternative factor of immutability.
It is well-settled that legislation should not burden individuals on the basis of a core trait
that they cannot or should not have to change, which provides another reason for courts
to look more closely at laws that do impose such burdens. Cf. Parham v. Hughes, 441
U.S. 347, 353 (1979) (“Unlike the illegitimate child for whom the status of illegitimacy is
involuntary and immutable . . . .”). By contrast, where the characteristic is something
that changes over time for most people, there is less reason for courts to be concerned,
because legislation drawing lines based on that characteristic could potentially burden all
individuals equally. See, e.g., Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 83 (2000)
(reaffirming that age is not suspect classification under Equal Protection Clause because
all people will experience old age if they live out their normal life spans).7
7

Moreover, it is now clear for constitutional purposes that laws that discriminate based
on sexual orientation, such as Section 3 of DOMA, cannot be excused or justified

17

To the extent immutability is relevant, the Supreme Court also has
recognized that a defining characteristic need not be absolutely unchangeable for it to
form the basis of a suspect classification.

See, e.g., Graham v. Richardson, 403 U.S.

365, 375–76 (1971) (classifications based on alienage subject to strict scrutiny); see also
City of Cleburne, 473 U.S. at 442–43 & n.10 (relevance of immutability).8 After all, few
if any of the suspect classifications identified by the Supreme Court are truly
“immutable” in the strictest sense of the word—people can convert religions, aliens can
become naturalized, individuals can change their sex, and some people can “pass” or
even modify outward signs of their race or national origin. Nonetheless, all of these
classifications have been deemed “immutable” in the heightened scrutiny analysis.
Applying these principles here, there is, as the Attorney General has
recognized, “a growing scientific consensus [that] accepts that sexual orientation is a
characteristic that is immutable.” Holder Letter at 3; see also Peplau Aff. ¶¶ 19–28. Like
the history of discrimination or the ability to contribute to society, few people today
merely as discrimination against certain conduct. See Lawrence, 539 U.S. at 575
(“When homosexual conduct is made criminal by law of the State, that declaration in
and of itself is an invitation to subject homosexual persons to discrimination . . . .”
(emphasis added)); accord id. at 583 (O’Connor, J., concurring in judgment) (“While
it is true that the law applies only to conduct, the conduct targeted by this law is
conduct that is closely correlated with being homosexual. Under such circumstances,
Texas’ sodomy law is targeted at more than conduct. It is instead directed toward gay
persons as a class.”). The Supreme Court has reaffirmed since Lawrence that, with
regard to sexual orientation and same-sex intimacy, “[o]ur decisions have declined to
distinguish between status and conduct in this context.” CLS, 130 S. Ct. at 2990.
Thus, under the law, lesbians and gay men cannot be denied fair treatment on the
grounds that there is some meaningful distinction that can be drawn between “being
gay” and “engaging in homosexual conduct.”
8

See also Murgia, 427 U.S. at 313 (not listing “immutability” as requirement for strict
scrutiny); San Antonio Indep. Sch. Dist., 411 U.S. at 28 (1973).

18

would argue that a gay man can willfully change his orientation or that the so-called
“therapies” that have been promoted to enable him to do so are anything other than a
sham. See Am. Psychological Ass’n, Report of the American Psychological Association
Task Force on Appropriate Therapeutic Responses to Sexual Orientation, at v (2009),
http://www.apa.org/pi/lgbt/resources/therapeutic-response.pdf

(“[E]fforts

to

change

sexual orientation are unlikely to be successful and involve some risk of harm.”).
Indeed, sexual orientation is central to individual liberty and identity, as
recognized in Lawrence v. Texas. See 539 U.S. at 574. Accordingly, courts that have
considered the issue since Lawrence have recognized that sexual orientation (whether
straight or gay) constitutes a central element of an individual’s identity, which one should
not be compelled to change in order to avoid discriminatory treatment under the law.
See, e.g., Varnum v. Brien, 763 N.W.2d 862, 893 (Iowa 2009); Kerrigan, 957 A.2d at
438; In re Marriage Cases, 183 P.3d at 442; see also Watkins v. U.S. Army, 875 F.2d
699, 725 (9th Cir. 1989) (Norris, J., concurring) (immutability describes “traits that are
so central to a person’s identity that it would be abhorrent for government to penalize a
person for refusing to change them”); Able v. United States, 968 F. Supp. 850, 863–64
(E.D.N.Y. 1997) (“Whether or not sexual orientation is immutable, it forms a significant
part of a person’s identity.”), rev’d on other grounds, 155 F.3d 628 (2d Cir. 1998); cf.
Hernandez-Montiel v. INS, 225 F.3d 1084, 1093 (9th Cir. 2000) (concluding that “sexual
orientation and sexual identity are immutable” for gay men and lesbians for purposes of
determining whether they were “social group” eligible for asylum), overruled on other
grounds, Thomas v. Gonzalez, 409 F.3d 1177 (9th Cir. 2005).

19

4.

Lesbians and Gay Men Lack Political Power
Finally, although political disadvantage is not necessarily required for a

government classification to be treated as suspect,9 to the extent the inability to redress a
group’s grievances politically is relevant, lesbians and gay men are clearly a minority and
frequently lack the political power to defend themselves and their civil rights against a
hostile majority. Segura Aff. ¶¶ 9–85. “Political power refers to a person’s or group’s
demonstrated ability to extract favorable (or prevent unfavorable) policy outcomes from
the political system.” Id. ¶ 13. There can be no serious dispute that ongoing political
events evince “a continuing antipathy or prejudice” towards lesbians and gay men “and a
corresponding need for more intrusive oversight by the judiciary.” City of Cleburne, 473
U.S. at 443; see also Plyler, 457 U.S. at 216 n.14.
Thus, for example, gay rights opponents have aggressively used state
ballot initiatives and referenda to pass discriminatory laws or repeal protective ones and
even to amend state constitutions to deny lesbians and gay men important protections.
See, e.g., Romer v. Evans, 517 U.S. 620 (1996); see also Segura Aff. ¶ 36 (citing repeals
of legislatively enacted anti-gay discrimination ordinances through popular vote
mechanisms); id. ¶¶ 37–38 (surveying anti-marriage initiatives). This kind of “direct
democracy” has been used against lesbians and gay men more than any other group.
Segura Aff. ¶ 43.

This extraordinary use of majoritarian democratic processes to

affirmatively disadvantage a lesbian and gay minority vividly illustrates the inability of
9

Though some Supreme Court precedents have considered political powerlessness as a
factor in determining whether heightened scrutiny applies, see, e.g., Bowen v.
Gilliard, 483 U.S. 587, 602 (1987), it is not a necessary factor, see, e.g., Adarand
Constructors, 515 U.S. at 235 (holding that all racial classifications are subject to
strict scrutiny, although many racial groups hold substantial political power).

20

gay men and lesbians to protect themselves politically. Cf. San Antonio Indep. Sch. Dist.,
411 U.S. at 28 (identifying suspect classifications as those that burden groups that are
“relegated to such a position of political powerlessness as to command extraordinary
protection from the majoritarian political process”); Carolene Prods., 304 U.S. at 153 n.4
(noting that “more searching judicial inquiry” is warranted when majority prejudice
“curtail[s] the operation of those political processes ordinarily to be relied upon to protect
minorities”).
That there have been some modest and even important political initiatives
in recent years that have helped mitigate the discrimination against lesbians and gay men
does not alter this analysis. Segura Aff. ¶¶ 15–17. Indeed, the Supreme Court has
applied heightened scrutiny to statutes that rely on racial classifications after racial
minorities had achieved far greater political victories against discrimination than lesbians
and gay men have today. Id. ¶¶ 81–85. By the early 1970s, African-Americans were
“protected by three federal constitutional amendments, major federal Civil Rights Acts of
1866, 1870, 1871, 1875 (ill-fated though it was), 1957, 1960, 1964, 1965, and 1968, as
well as by antidiscrimination laws in 48 of the states.” High Tech Gays v. Def. Indus.
Sec. Clearance Office, 909 F.2d 375, 378 (9th Cir. 1990) (Canby, J., dissenting). By the
same token, by the time the Frontiero plurality recognized that sex-based classifications
required intermediate judicial scrutiny, Congress had already passed Title VII of the Civil
Rights Act of 1964, the Equal Pay Act of 1963, and the Equal Rights Amendment.
Frontiero, 411 U.S. at 687–88; Kerrigan, 957 A.2d at 452–53. The existence of these
protections did not stop the Supreme Court from holding that laws that discriminate on
the basis of race and sex must be subject to heightened scrutiny.

21

By contrast, lesbians and gay men have virtually no political power when
measured by the same yardstick.

There is no federal legislation prohibiting

discrimination on the basis of sexual orientation in employment, education, access to
public accommodations, or housing.

Segura Aff. ¶ 29.

Until 2009, when sexual

orientation was added to federal anti-hate crime legislation (over significant opposition),
no federal legislation had ever existed to protect individuals on the basis of sexual
orientation. Id. ¶ 31. Additional progress recently—including repeal of the military’s
ban on lesbian and gay service members by a lame-duck congress following two judicial
findings of unconstitutionality, see Log Cabin Republicans v. United States, 716 F. Supp.
2d 884 (C.D. Cal. 2010); Witt v. U.S. Dep’t of Air Force, 739 F. Supp. 2d 1308 (W.D.
Wash. 2010)—while important, hardly demonstrates meaningful political capital,
particularly as there was overwhelming popular support for repeal long before any
legislative progress was made. Segura Aff. ¶ 32. Moreover, eliminating express, de jure
discrimination, such as “Don’t Ask, Don’t Tell,” hardly constitutes evidence of
affirmative political power. Id. ¶ 25.
*

*

*

Because sexual orientation satisfies both of the two essential factors
relevant to determining if a given classification is suspect, as well as the two additional
critieria that courts sometimes rely upon, DOMA’s exclusion of married same-sex
couples from all federal marital protections and obligations should be subject to strict or,
at the very least, intermediate scrutiny.

22

B.

DOMA Is neither Narrowly Tailored to Serve Any Compelling Government
Interest nor Substantially Related to an Important Government Interest
1.

DOMA Does Not Satisfy Either the Strict or Intermediate Scrutiny
Standard
The standard for justifying a discriminatory statute like DOMA under

heightened scrutiny is justifiably formidable. To survive strict scrutiny, the government
must prove that the classification at issue is “narrowly tailored” and furthers “compelling
governmental interests.” Adarand Constructors, 515 U.S. at 227 (emphasis added).
Under intermediate scrutiny, the government must still establish that the classification at
issue is “substantially related” to an “important governmental objective.” Clark v. Jeter,
486 U.S. 456, 461 (1988) (emphasis added).
Under both tests, after-the-fact justifications are not permissible. Under
heightened scrutiny, “a tenable justification must describe actual state purposes, not
rationalizations for actions in fact differently grounded.” Virginia, 518 U.S. at 535–36.
In other words, where, as here, heightened scrutiny applies, “the State must show that the
alleged objective was the legislature’s actual purpose for the discriminatory
classification,” Shaw v. Hunt, 517 U.S. 899, 908 n.4 (1996) (internal quotation marks
omitted), and “not hypothesized or invented post hoc in response to litigation,” Virginia,
518 U.S. at 533 (internal quotation marks omitted). See also, e.g., United States v.
Brennan, No. 08-5171-cv (L), 2011 WL 1679850, at *30 (2d Cir. May 5, 2011); Alma
Soc’y, Inc. v. Mellon, 601 F.2d 1225, 1234–35 (2d Cir. 1979); Holder Letter at 4. Given
these demanding standards, BLAG cannot possibly meet its burden to demonstrate that
DOMA’s disparate treatment of married same-sex couples serves any compelling or

23

important state interest, much less one that is narrowly tailored or substantially related to
an important governmental objective.10
2.

All of Congress’s Justifications for DOMA Fail
According to the legislative history, DOMA’s exclusion in 1996 of all

same-sex couples who might one day get married from all federal marital protections and
obligations was intended to: (a) “defend[] and nurtur[e] the institution of traditional,
heterosexual marriage,” H.R. Rep. No. 104-664, at 12 (1996); (b) “promot[e]
heterosexuality,” id. at 15 n.53; (c) “encourag[e] responsible procreation and childrearing,” id. at 13; (d) “protect[] . . . democratic self-governance,” id. at 16; (e) “preserve
scarce government resources” by preventing marital benefits from “hav[ing] to be made
available to homosexual couples and surviving spouses of homosexual marriages,” id. at
18; and (f) promote a “moral disapproval of homosexuality, and a moral conviction that
heterosexuality better comports with traditional (especially Judeo-Christian) morality,”
id. at 16.
As shown below, excluding married same-sex couples from all federal
benefits and protections is not narrowly tailored to advance any important, much less a
compelling governmental interest.11

10

Because being gay or lesbian, like other classifications that trigger strict scrutiny, has
nothing whatsoever to do with an individual’s ability to perform in any job or
profession, strict scrutiny is the appropriate level of judicial scrutiny to apply to
sexual orientation classifications, but Plaintiff believes that this Court need not
determine whether strict or intermediate scrutiny applies, because DOMA cannot
withstand either.

11

Indeed, as discussed below, none of these justifications can withstand even rational
basis review.

24

a)

Preserving “Traditional” Marriage Is Not a Compelling or
Important Government Interest

It is well settled that “tradition” alone cannot justify the government’s
discrimination against a class of individuals. Williams v. Illinois, 399 U.S. 235, 239
(1970) (noting in equal protection challenge that “neither the antiquity of a practice nor
the fact of steadfast legislative and judicial adherence to it through the centuries insulates
it from constitutional attack”); cf. Varnum, 763 N.W.2d at 898 (“A specific tradition
sought to be maintained cannot be an important governmental objective for equal
protection purposes, however, when the tradition is nothing more than the historical
classification currently expressed in the statute being challenged.”); Kerrigan, 957 A.2d
at 478 (same); Goodridge v. Dept. of Pub. Health, 798 N.E.2d 941, 972–73 (Mass. 2003)
(Greaney, J., concurring) (“To define the institution of marriage by the characteristics of
those to whom it always has been accessible, in order to justify the exclusion of those to
whom it never has been accessible, is conclusory and bypasses the core question . . . .”).
In other words, under the Constitution, discriminatory classifications cannot merely
perpetuate past stereotypes or enforce prior discrimination. Thus, the fact that lesbians
and gay men have historically been denied access to marriage cannot provide the
necessary independent basis for the federal government’s disregard of existing stateapproved marriages of same-sex couples today.
Put another way, limiting federal benefits and protections to heterosexual
couples is not an independent justification for DOMA. Instead, it simply restates the
classification itself. Accepting this kind of circular reasoning would render the entire
concept of heightened judicial scrutiny a farce. Indeed, were sustaining the tradition of
excluding same-sex couples from the federal benefits of marriage a compelling interest,

25

then so too would have been banning interracial marriage in order to preserve a history of
miscegenation laws or avoiding racially integrated education in order to preserve a
history of segregated schools.

In each such case, a government purpose aimed at

perpetuating unequal (albeit traditional) treatment of a group of people cannot justify the
history of discrimination. Cf. Romer, 517 U.S. at 635 (“[The amendment at issue] is a
classification of persons undertaken for its own sake, something the Equal Protection
Clause does not permit.”).
b)

DOMA Does Not Promote Heterosexuality

Similarly, any suggestion that DOMA promotes and encourages
heterosexuality deserves very short shrift.

It is entirely unclear how, for example,

denying an 82-year-old widow an estate tax deduction promotes heterosexuality, either
with respect to Edie Windsor or anyone else for that matter. To the contrary, as discussed
above, the undisputed scientific consensus is that a person’s sexual orientation is
enduring and stable, and not the result of personal choice. Peplau Aff. ¶ 28 (“[T]here is
converging scientific evidence documenting that sexual orientation reflects an enduring
set of attractions and experiences for most people. Efforts to change a person’s sexual
orientation through religious or psychotherapy interventions have not been shown to be
effective.”). There is surely no “substantial relationship” between Section 3 of DOMA
and promoting heterosexuality, or any sense in which DOMA is narrowly tailored to
achieve that end.

c)

DOMA Does Not Promote Responsible Procreation or ChildRearing

Excluding married same-sex couples from all federal marital protections
and obligations is also thoroughly unrelated to any interest the federal government may

26

have in promoting “responsible procreation” or child-rearing. DOMA instead works
directly contrary to such interests because it “prevent[s] children of same-sex couples
from enjoying the immeasurable advantages that flow from the assurance of a stable
family structure when afforded equal recognition under federal law.” Gill v. Office of
Pers. Mgmt., 699 F. Supp. 2d 374, 389 (D. Mass. 2010) (internal quotation marks
omitted); Expert Affidavit of Michael Lamb (“Lamb Aff.”) ¶¶ 41–42.
DOMA’s congressional supporters claimed it was necessary to override
state determinations of what constitutes a valid marriage “because our society recognizes
that heterosexual marriage provides the ideal structure within which to beget and raise
children.” Defense of Marriage Act: Hearing on H.R. 3396 Before the Subcomm. on the
Const. of the H. Comm. on the Judiciary, 104th Cong. 1 (1996) (statement of Rep.
Canaday, Chairman, H. Subcomm. on the Const.).

Because that statement is

demonstrably false, and relies on stereotypes and other impermissible considerations, it
cannot provide a sufficient justification for DOMA’s disregard for valid state-approved
marriages.
There is clear expert consensus, based on decades of social science
research concerning same-sex couples as parents, that the children raised by lesbian or
gay parents are just as well-adjusted as those of heterosexual parents. See Lamb Aff.
¶¶ 28–37. The factors predicting the healthy adjustment of children are the same for
lesbian and gay parents as for heterosexual parents, and include the quality of the parentchild relationship and the availability of sufficient economic and social resources. See id.
¶¶ 18–20; Gill, 699 F. Supp. 2d at 388 & n.106 (since enactment of DOMA in 1996, “a
consensus has developed among the medical, psychological, and social welfare

27

communities that children raised by gay and lesbian parents are just as likely to be welladjusted as those raised by heterosexual parents”).12
Moreover, DOMA does nothing to advance this purported interest. It does
not alter the fact that same-sex married couples, like many different-sex married couples,
conceive children through assisted reproduction, or form families through adoption.
Excluding validly married same-sex couples from federal marital benefits and protections
cannot possibly be said to be “narrowly tailored” to achieving a goal of having children
be raised by heterosexual married parents. (Nor, as discussed below, is it even rationally
related to that so-called interest. See infra Part III.B.)
d)

DOMA Undermines Democratic Self-Governance

Despite Congress’s lip-service to the contrary in 1996, DOMA
undermines democratic self-governance because it undermines the ability of citizens of a
state (through their democratically elected leaders) to exercise their authority to regulate
marriage—or to “vote with their feet” by relocating to a state that recognizes marriage
between same sex couples. DOMA instead foists on all states, including those like New
12

Citing Comm. on Psychosocial Aspects of Child and Family Health, Am. Acad. of
Pediatrics, Coparent or Second-Parent Adoption by Same-Sex Parents, 109 Pediatrics
339 (2002), available at http://pediatrics.aappublications.org/cgi/reprint/109/2/
339.pdf; Am. Psychological Ass’n, Resolution on Sexual Orientation, Parents, and
Children, in Proceedings of the American Psychological Association for the
Legislative Year 2004, 60 Am. Psychol. 436, 496–97 (2005), available at
http://www.apa.org/ about/governance/council/policy/parenting.aspx; Am. Acad. of
Child & Adolescent Psychiatry, Gay, Lesbian, Bisexual, or Transgender Parents Policy
Statement,
http://www.aacap.org/cs/root/policy_statements/gay_lesbian_transgender_and_bi
sexual_parents_policy_statement; Am. Med. Ass’n, AMA Policy Regarding Sexual Orientation,
http://www.ama-assn.org/ama/pub/about-ama/our-people/member-groups-sections/glbt-advisory
committee/ama-policy-regarding-sexual-orientation.shtml; Child Welfare League of Am.,
Position Statement on Parenting of Children by Lesbian, Gay, and Bisexual Adults,
http://www.cwla.org/programs/ culture/glbtqposition.htm.

28

York that recognize valid marriages of same-sex couples from other jurisdictions, and on
United States citizens from across the country, a mandatory, second-class category of
marriage.
In any event, Congress’s “interest” in “protecting” democratic selfgovernance can never constitute a compelling or important interest that justifies a
discriminatory law. Like the “preserving tradition” argument discussed above, this
circular reasoning would permit the federal government to discriminate simply because
the majority wants to discriminate.

That, of course, is precisely what the Fifth

Amendment was designed to prevent.
e)

DOMA Does Not Conserve Resources

Congress’s justification that federal non-recognition of legal same-sex
marriages conserves resources can be easily disposed of because it is demonstrably false.
According to the nonpartisan Congressional Budget Office, the recognition of the
marriages of same-sex couples would actually increase annual net federal revenue.
Cong. Budget Off., U.S. Cong., The Potential Budgetary Impact of Recognizing SameSex Marriages 1 (June 21, 2004), http://www.cbo.gov/ftpdocs/55xx/doc5559/06-21SameSexMarriage.pdf.13
Even if refusing to recognize the legal marriages of same-sex couples did
save the federal government money (which it does not), such cost-cutting, standing alone,
cannot constitute a compelling or important governmental interest. Plyler, 457 U.S. at
13

In any event, saving public resources, although mentioned in the House Report, did
not actually motivate the enactment of DOMA. Gill, 699 F. Supp. 2d at 390 n.116
(“[T]he House rejected a proposed amendment to DOMA that would have required a
budgetary analysis of DOMA’s impact prior to passage.”) (citing 142 Cong. Rec.
H7503–05 (daily ed. July 12, 1996)).

29

227 (“[A] concern for the preservation of resources standing alone can hardly justify the
classification used in allocating those resources.”) (citing Graham, 403 U.S. at 374–75);
Shapiro v. Thompson, 394 U.S. 618, 633 (1969) (“[A State] must do more than show that
denying welfare benefits to new residents saves money.”), overruled on other grounds by
Edelman v. Jordan, 415 U.S. 651 (1974); In re Levenson, 587 F.3d 925, 933 (9th Cir.
2009) (Reinhardt, J.) (“[T]hat a government policy incidentally saves the government an
insignificant amount of money does not provide a rational basis for that policy if the
policy is, as a cost-saving measure, drastically underinclusive, let alone founded upon a
prohibited or arbitrary ground.”).
f)

“Moral Disapproval” Is Not a Compelling or Important
Government Interest

If there is one objective that DOMA was in fact intended to achieve it is
moral condemnation of gay men and lesbians. The legislative history explicitly states
that DOMA was intended to express the “moral disapproval of homosexuality, and a
moral conviction that heterosexuality better comports with traditional (especially JudeoChristian) morality.” H.R. Rep. No. 104-664, at 15–16; see Dragovich v. U.S. Dep’t of
Treas., No. 10-01564 (CW), 2011 WL 175502, at *12 (N.D. Cal. Jan. 18, 2011)
(“[A]nimus toward, and moral rejection of, homosexuality and same-sex relationships are
apparent on the congressional record.”); see also Exs. 1–7 to Affidavit of Andrew J.
Ehrlich (collecting examples of anti-gay animus in congressional record).
But “the denial of federal benefits to same-sex spouses cannot be justified
as an expression of the government’s disapproval of homosexuality, preference for
heterosexuality, or desire to discourage gay marriage.”

30

Levenson, 587 F.3d at 932.

Animus against gay men and lesbians, as a matter of law, is not a legitimate, much less an
important or compelling, government interest. Romer, 517 U.S. at 632.
“[I]f the constitutional conception of ‘equal protection of the laws’ means
anything, it must at the very least mean that a bare congressional desire to harm a
politically unpopular group cannot constitute a legitimate governmental interest.” United
States Dep’t of Agric. v. Moreno, 413 U.S. 528, 534 (1973). Indeed, the Supreme Court
has soundly rejected moral disapproval as a justification for discrimination against
lesbians and gay men, holding that “‘the fact that the governing majority in a State has
traditionally viewed [homosexuality] as immoral is not a sufficient reason for upholding a
law prohibiting the practice.’” Lawrence, 539 U.S. at 577 (quoting Bowers v. Hardwick,
478 U.S. 186, 216 (1986) (Stevens, J., dissenting)); id. at 583 (O’Connor, J., concurring)
(“Moral disapproval of a group cannot be a legitimate governmental interest under the
Equal Protection Clause because legal classifications must not be ‘drawn for the purpose
of disadvantaging the group burdened by the law.’” (quoting Romer, 517 U.S. at 633)).
Here too, “mere negative attitudes, or fear, unsubstantiated by factors which are properly
cognizable . . . , are not permissible bases” for governmental discrimination. City of
Cleburne, 473 U.S. at 488.
III.
EVEN UNDER RATIONAL BASIS
REVIEW, DOMA IS UNCONSTITUTIONAL
While, as discussed above, the question of DOMA’s constitutionality
should properly be analyzed under the heightened scrutiny standard, even if it were to be
analyzed under the more lenient rational basis standard, it would still fail.

31

A.

The Applicable Standard
Under rational basis review, a statute will be upheld as constitutional “if

the classification drawn by the statute is rationally related to a legitimate state interest.”
City of Cleburne, 473 U.S. at 440. Still, there must be a “link between classification and
objective,” Romer, 517 U.S. at 632, i.e., “some relation between the classification and the
purpose it serve[s].” Id. at 633. Importantly, it is the classification—the challenged
discrimination—and not the law as a whole that must rationally advance a legitimate
governmental interest. Bd. of Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356, 366–
67 (2001); Rinaldi v. Yeager, 384 U.S. 305, 308–09 (1966).
“Despite the wide latitude afforded [the government under this level of
review] . . . distinctions that do not have a rational basis will not be sustained.” Myers v.
Cnty. of Orange, 157 F.3d 66, 75 (2d Cir. 1998). “In a long line of cases, the Supreme
Court has applied rational basis scrutiny to strike down legislation where the permissible
bounds of rationality were exceeded.” Sharif v. N.Y. State Educ. Dep’t, 709 F. Supp.
345, 364 (S.D.N.Y. 1989) (citing cases).
A classification fails rational basis review if its connection to the asserted
purpose, while not totally lacking, is “so attenuated as to render the distinction arbitrary
or irrational.” City of Cleburne, 473 U.S. at 446. For example, in Romer, Colorado
defended its ban on antidiscrimination protection for gay people by asserting that the ban
rationally furthered two state interests: (1) respecting the religious liberties of landlords
and employers, and (2) conserving state resources to fight discrimination against other
groups. 517 U.S. at 635. Yet the Supreme Court held that those interests, even if
legitimate on their own, were “so far removed” from the ban’s classification, which
singled out gay people for its burden, that it was “impossible to credit” that they were the
32

reason for the law. Id. Here too, DOMA is so far removed from any legitimate purpose
that it is simply impossible to credit any “relation between the classification and the
purpose it serves.” Id. at 633.
B.

Congress’s 1996 Justifications for DOMA Fail Rational Basis Review
In circuits that, unlike the Second Circuit, had already decided what level

of scrutiny applies to sexual orientation classifications, and prior to the U.S. Attorney
General’s determination that such classifications should be subject to heightened
scrutiny, numerous courts have applied rational basis review to DOMA’s purported
justifications.

Even under that lower level of scrutiny, these courts held that the

government’s justifications were either illegitimate or insufficient. See, e.g., Dragovich,
2011 WL 175502; Gill, 699 F. Supp. 2d 374; Levenson, 587 F.3d 925; In re Balas, No.
2:11-BK-17831 (TD), 2011 WL 2312169 (Bankr. C.D. Cal. June 13, 2011).14
As discussed above, the House Report for DOMA identified the
congressional interests purportedly served by denying federal marital protections and

14

While a few district courts previously held that DOMA’s discrimination against
married same-sex couples was not unconstitutional, those decisions either did not
involve Section 3 of DOMA and federal benefits at all, see e.g., Ake v. Wilson, 354 F.
Supp. 2d 1298 (M.D. Fla. 2005) (challenge to Florida’s refusal to recognize marriage
of same-sex couple married in Massachusetts); or ignored the complete lack of any
rational connection between DOMA’s sexual orientation classification and a
legitimate government interest, see e.g., In re Kandu, 315 B.R. 123, 145–47 (W.D.
Wa. 2004) (accepting assertion that DOMA advanced interest in “encouraging the
development of relationships optimal for procreation” and finding that DOMA
“simply codified that definition of marriage historically understood by society”);
Smelt v. Cnty. of Orange, 374 F. Supp. 2d 861, 880 (C.D. Cal. 2005) (accepting
assertion that “Congress could plausibly have believed sending [the] message [that
heterosexual marriages have special significance] makes it more likely people will
enter into opposite-sex unions, and encourages those relationships”), aff’d in part and
vacated in part on other grounds, 477 F.3d 673 (9th Cir. 2006).

33

obligations to married same-sex couples. See 142 Cong. Rec. H7503–05 (daily ed. July
12, 1996). As also explained above, those justifications are unsound either because they
are plainly illegitimate interests or because the relationship between the purported
justifications and DOMA’s discriminatory classification is “so attenuated as to render the
distinction arbitrary or irrational.” City of Cleburne, 473 U.S. at 446.
Preserving “traditional” marriage is not a legitimate interest. As set
forth above, a history and tradition of limiting marriage to straight couples alone cannot
justify DOMA’s discrimination.

That purported justification does not explain the

classification as equal protection requires, but merely restates the classification and fails
to provide any independent purpose for DOMA’s exclusion of one class of staterecognized marriages from federal marital protections and obligations. See Romer, 517
U.S. at 633 (classification “must bear a rational relationship to an independent and
legitimate legislative end”). Accordingly, it cannot provide a rational basis for DOMA’s
denigration of married same-sex couples. Gill, 699 F. Supp. 2d at 389–90; Levenson, 587
F.3d at 932.
DOMA does not “promote” heterosexuality. No one could rationally
credit that denying the validity of state-approved marriages of same sex couples would
have any impact on whether different-sex couples marry or divorce, or cohabit. Nor does
Section 3 of DOMA “encourage[ gay men and lesbians] to enter into marriages with
members of the opposite sex.” Levenson, 587 F.3d at 932 (applying rational basis
review). Indeed, applying rational basis scrutiny to this purported governmental interest,
Judge Tauro in Gill simply could not “discern a means by which the federal
government’s denial of benefits to same-sex spouses might encourage homosexual people

34

to marry people of the opposite sex.” Gill, 699 F. Supp. 2d at 389. Accord Dragovich,
2011 WL 175502, at *11 (“The exclusion of same-sex couples from the federal definition
of marriage does not encourage heterosexual marriages.”).
DOMA does not advance any legitimate interest in child-rearing. Section
3 of DOMA’s connection with child-rearing is also too attenuated to meet even rational
basis review. Procreation and child-rearing are not the sole or even the primary focus of
marriage, certainly under federal law. For example, “the ability to procreate is not now,
nor has it ever been, a precondition to marriage in any state in the country.” Gill, 699 F.
Supp. 2d at 389 (citing Lawrence, 539 U.S. at 605 (2003) (Scalia, J., dissenting)); see
also Expert Affidavit of Nancy Cott (“Cott Aff.”) ¶ 19. The federal government, for its
part, has never treated married heterosexual couples differently if they were infertile or
otherwise unable or unwilling to procreate.

And the great majority of the federal

protections and obligations that come with marriage relate not to child-rearing or
procreation but to practical protections aimed at the adults.15 On the other hand, DOMA
excludes married same-sex couples not just from federal recognition of their relationship
in contexts relating to children or procreation, but in every one of the 1,138 federal
statutes and programs that relate to marriage in any way. DOMA’s sweeping breadth,
and the striking disconnect between the classification and the purported purpose, make it
“impossible to credit” that this law was crafted to promote child-rearing by heterosexuals.
Romer, 517 U.S. at 635.
15

DOMA affects over a thousand rights and obligations, many of which do not relate to
children. See Cong. Budget Off., U.S. Cong., The Potential Budgetary Impact of
Recognizing Same-Sex Marriages 1 (June 21, 2004), http://www.cbo.gov/ftpdocs/
55xx/doc5559/06-21-SameSexMarriage.pdf.

35

Because it is “beyond scientific dispute” that a child’s adjustment is not
determined by his parents’ sexual orientation, see Lamb Aff. ¶ 13, any suggestion by
DOMA’s defenders that it advances a legitimate interest in ensuring that children will be
better adjusted by being raised in households with heterosexual parents to whom they are
biologically-related cannot provide a rational basis for DOMA’s discrimination. Gill,
699 F. Supp. 2d at 388–89. The scientific evidence, in fact, demonstrates that male and
female parents can be equally competent, and that the absence of a male or female parent
does not affect child development. Lamb Aff. ¶¶ 23–27. And even more fundamentally,
as discussed above, DOMA does nothing to alter the fact that same-sex couples may
marry and raise children together, and may reside in states like New York that recognize
their marriages.

In re Levenson, 587 F.3d at 934 (DOMA “does not serve any

governmental interest in promoting a child-rearing environment,” and thus fails rational
basis review “because [. . . ] the denial of benefits to same-sex spouses will not affect the
decisions made by same-sex couples regarding marriage or parenting.”). As a result, it is
simply impossible to credit this so-called “interest” as a rational justification for
DOMA’s exclusion of same-sex couples from federal benefits and programs.
DOMA does not promote self-governance. Nor can Section 3 of DOMA
be said to rationally advance a legitimate interest in promoting self-governance; instead,
as discussed above, it denies states their traditional role in regulating marriage, and
arbitrarily disregards the state-approved marriages of same-sex couples. Gill, 699 F.
Supp. 2d. at 391 (“There can be no dispute that the subject of domestic relations is the
exclusive province of the states. And the powers to establish eligibility requirements for

36

marriage, as well as to issue determinations of martial status, lie at the very core of such
domestic relations law.”); Cott Aff. ¶ 88.
DOMA does not conserve resources. Finally, DOMA does not rationally
advance any legitimate interest in conserving government resources.

As the court

observed in Gill, “the Congressional Budget Office concluded in 2004 that recognition of
same-sex marriages by all fifty states would actually result in a net increase in federal
revenue.” 699 F. Supp. 2d at 390 n.116. Moreover, this justification fails because
“[t]here is no rational relationship” whatsoever between the sex of a person’s spouse and
the federal government’s desire to limit its outlays. Levenson, 587 F.3d at 933; accord
Gill, 699 F. Supp. 2d at 390. See also Romer, 517 U.S. at 635 (“Colorado also cites its
interest in conserving resources to fight discrimination against other groups. The breadth
of the amendment is so far removed from [this] justification[] that we find it impossible
to credit . . . .”).
The only congressional justification DOMA does rationally advance is one
the Supreme Court has held is constitutionally invalid no matter what the standard—the
expression of animus and moral disapproval toward lesbians and gay men. See Romer,
517 U.S. at 632; Part II.B.2.f, supra.
C.

No Other Rational Basis for DOMA Can Be Asserted
Moreover, none of the additional purported justifications asserted in previous

litigation regarding Section 3 of DOMA can overcome the patent lack of a rational basis for
the statute’s discrimination.
DOMA does not avoid inconsistency. As Judge Reinhardt of the Ninth
Circuit recognized, the claim that DOMA’s definition of marriage avoids inconsistency
across states, because same-sex couples cannot marry in every jurisdiction, must fail
37

“[e]ven under the more deferential rational basis review [. . . ].” Levenson, 587 F.3d at
933. Varying state eligibility requirements for marriage throughout our country’s history
have meant that heterosexual couples who could validly marry in one state might not be
able to in another. Gill, 699 F. Supp. 2d at 391; Cott Aff. ¶¶ 24–64. “And yet the federal
government has fully embraced these variations and inconsistencies in state marriage
laws by recognizing as valid for federal purposes any heterosexual marriage which has
been declared valid pursuant to state law.” Gill, 699 F. Supp. 2d at 391 (internal citations
omitted).
In other words, Congress has never before cared about uniformity across
state definitions of marriage, even though, for example, only a minority of states
recognize common law marriages, Cott Aff. ¶¶ 36–38, so any assertion of such an
interest here simply cannot be credited. See City of Cleburne, 473 U.S. at 448–50 (under
rational basis review, government may not single out a group for disfavored treatment
where the group does not present any “special threat to the [state’s] legitimate interests”).
While the rational basis inquiry may not require a perfect fit between a classification and
its justification, “this deferential constitutional test nonetheless demands some reasonable
relation between the classification in question and the purpose it purportedly serves.”
Gill, 699 F. Supp. 2d at 396. The government “may not rely on a classification whose
relationship to an asserted goal is so attenuated as to render the distinction arbitrary or
irrational.” Id. at 388 (quoting City of Cleburne, 473 U.S. at 446).
DOMA does not preserve the status quo. The argument, asserted in other
cases, that DOMA “preserves the status quo,” in that no state allowed same-sex couples
to marry when DOMA was enacted in 1996, is similarly unavailing. As courts applying

38

rational basis review have pointed out, the “assertion that pursuit of this interest provides
a justification for DOMA rests on a conspicuous misconception of what the status quo
was at the federal level in 1996.” Gill, 699 F. Supp. 2d at 393 (emphasis in original). At
the time, the federal status quo “was to recognize, for federal purposes, any marriage
declared valid according to state law.” Id. In other words, “DOMA did not preserve the
status quo vis-à-vis the relationship between federal and state definitions of marriage; to
the contrary, it disrupted the long-standing practice of the federal government deferring
to each state’s decisions as to the requirements for a valid marriage.” Levenson, 587 F.3d
at 933.
*

*

*

As the Supreme Court has explained, “laws singling out a certain class of
citizens for disfavored legal status or general hardships are rare.” Romer, 517 U.S. at
633.

They are rare in part because such classifications generally lack any rational

connection to a legitimate government interest.16 The Supreme Court in Romer held that
the purported justifications for the Colorado amendment at issue failed to provide a
rational basis because “[the amendment’s] sheer breadth is so discontinuous with the
reasons offered for it that the amendment seem[ed] inexplicable by anything but animus
toward the class it affect[ed].” Id. at 632. DOMA paints with a similarly broad brush by
denying married same-sex couples all federal marital benefits and protections, regardless
of the nature of those protections.
16

As Justice O’Connor explained in her concurring opinion in Lawrence: “Moral
disapproval of a group cannot be a legitimate governmental interest under the Equal
Protection Clause because legal classifications must not be drawn for the purpose of
disadvantaging the group burdened by the law.” 539 U.S. at 583.

39

In other words, like the Colorado amendment in Romer, Section 3 of
DOMA has no “identifiable legitimate purpose or discrete objective.” Id. at 635. Its
sweeping breadth—covering the entire range of federal statutes and benefits that pertain
to marriage or spouses, including denying couples married under state law recognition of
their marriage for purposes of the marital exemption to the federal estate tax; denying
married lesbian and gay federal employees the ability to provide health insurance to their
spouses; and preventing married bi-national same-sex couples from remaining together in
the United States in the ways available to straight couples—makes it impossible to
explain the exclusion of married same-sex couples from those benefits and protections by
anything other than sheer animus. Cf. id. (“We cannot say that Amendment 2 is directed
to any identifiable legitimate purpose or discrete objective. It is a status-based enactment
divorced from any factual context from which we could discern a relationship to
legitimate state interests; it is a classification of persons undertaken for its own sake,
something the Equal Protection Clause does not permit.”).

Because, under our

constitutional framework, the government needs more than animus or moral disapproval
to justify the harms and denigration DOMA imposes on married same-sex couples,
DOMA fails even rational basis review.
IV.
BAKER v. NELSON IS NEITHER CONTROLLING
NOR PERSUASIVE AUTHORITY_______
Finally, although we anticipate that BLAG will rely heavily on it in their
opposition, the Supreme Court’s summary dismissal in Baker v. Nelson, 409 U.S. 810
(1972), almost four decades ago is not persuasive authority that should inform, let alone
bind, this Court’s resolution of Plaintiff’s equal protection challenge to DOMA.

40

In Baker, a same-sex couple seeking the right to marry challenged on due
process and equal protection grounds a Minnesota marriage licensing law that limited
marriage to heterosexual couples. Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971). The
Minnesota Supreme Court, applying rational basis review, upheld the statute. See id. at
186–87. The U.S. Supreme Court, which was required to accept the appeal under its
since-repealed mandatory appellate jurisdiction, summarily dismissed the appeal “for
want of a substantial federal question.” Baker, 409 U.S. at 810.
The precedential effect of such a dismissal is exceptionally narrow.
Summary dispositions are treated as binding only with regard to the precise legal
questions and facts presented in the jurisdictional statement.

Ill. Bd. of Elections v.

Socialist Workers Party, 440 U.S. 173, 182 (1979); Mandel v. Bradley, 432 U.S. 173,
176 (1977) (per curiam); Alexander v. Cahill, 598 F.3d 79, 89 n.7 (2d Cir. 2010).
Summary dispositions, moreover, do not signal the Supreme Court’s adoption of a lower
court’s reasoning.

Mandel, 432 U.S. at 176; Bush v. Vera, 517 U.S. 952, 996 (1996)

(Kennedy, J. concurring) (“We do not endorse the reasoning of the [lower court] when
we order summary affirmance.”).

As such, summary dispositions are “a rather slender

reed on which to rest future decisions.” Morse v. Republican Party of Va., 517 U.S. 186,
203 n.21 (1996) (quoting Anderson v. Celebrezze, 460 U.S. 780, 784–85 n.5 (1983)); see
also Green Party of Conn. v. Garfield, 616 F.3d 213, 225 (2d Cir. 2010) (summary
dispositions “provide little guidance” in subsequent disputes).
Plaintiff’s claims here present very different legal questions and facts than
those at issue in Baker. See Mandel, 432 U.S. at 80, 177 (Brennan, J., concurring).
Baker concerned whether the state’s marriage licensing statute (1) deprived appellants of

41

“their liberty to marry” without due process; (2) violated their equal protection rights; and
(3) violated their privacy rights.

In re Kandu, 315 B.R. 123, 137 (Bankr. W.D. Wash.

2004) (quoting jurisdictional statement).

Here, by contrast, Plaintiff challenges the

federal government’s refusal to recognize her valid, state-sanctioned marriage for
purposes of federal rights and benefits by virtue of DOMA—an entirely different statute
that has different legal effects, legislative history, and justifications through entirely
different legal arguments than those at issue in Baker. For this reason, Baker has no
binding effect in this case. See Smelt v. Cnty. of Orange, 374 F. Supp. 2d 861, 873 (C.D.
Cal. 2005) (stating that the court “[could not] conclude Baker necessarily decided the
questions raised by the constitutional challenge to DOMA”), aff’d in part and vacated in
part on other grounds, 447 F.3d 673 (9th Cir. 2006); In re Kandu 315 B.R. at 137–38
(rejecting Baker’s application to DOMA challenge in part because case concerned
“subsequently-enacted federal legislation with its own Congressional history that
concerns exclusively federal benefits”); see also In the Matter of the Marriage of J.B. &
H.B., 326 S.W.3d 654, 671–72 (Tex. App. 2010) (finding Baker did “not control the
disposition” of equal protection challenge to state law that precluded adjudication of
married same-sex couple’s divorce petition because it was “distinguishable” and
presented different legal issues).17
17

Indeed, two courts already have held that Baker does not control or inform the
outcome of equal protection challenges to DOMA because the issues presented are
different. Smelt, 374 F. Supp. 2d at 874 (holding that Baker “is not binding precedent
on Plaintiffs’ constitutional challenge to Section 3 of DOMA”), aff’d in part and
vacated in part on other grounds, 477 F.3d 673 (9th Cir. 2006); In re Kandu 315 B.R.
at 137–38 (same). While, as discussed above, Plaintiff disagrees with these courts’
reasoning on the constitutionality of DOMA, there is no dispute that these cases
accurately state Baker’s precedential weight.

42

CONCLUSION
For all the foregoing reasons, the Court should grant Plaintiff’s motion for
summary judgment.
Dated: New York, New York
June 24, 2011
PAUL, WEISS, RIFKIND, WHARTON
& GARRISON LLP
/s/ Andrew J. Ehrlich
____________________________________
Roberta A. Kaplan, Esq.
Andrew J. Ehrlich, Esq.
1285 Avenue of the Americas
New York, New York 10019-6064
[phone]
[e-mail]
[e-mail]
– and –
James D. Esseks, Esq.
Rose A. Saxe, Esq.
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION
125 Broad Street
New York, New York 10004-2400
[phone]
[e-mail]
[e-mail]
– and –
Melissa Goodman, Esq.
Alexis Karteron, Esq.
Arthur Eisenberg, Esq.
NEW YORK CIVIL LIBERTIES UNION
FOUNDATION
125 Broad Street, 19th Floor
New York, New York 10004
[phone]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Plaintiff Edith Schlain Windsor

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