Windsor v. The United States Of America

Filing 41

MEMORANDUM OF LAW in Support re: 40 CONSENT MOTION for Leave to File amicus curiae brief in support of the Plaintiff.. Document filed by New York State. (Heller, Simon)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
EDITH SCHLAIN WINDSOR, in her
:
capacity as Executor of the Estate of THEA :
CLARA SPYER,
:
:
Plaintiff,
:
:
v.
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THE UNITED STATES OF AMERICA
:
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Defendant. :
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No.1:10-cv-8435-BSJ-JCF
ECF Case

MEMORANDUM OF LAW IN SUPPORT OF UNOPPOSED MOTION TO
FILE BRIEF FOR THE STATE OF NEW YORK AS AMICUS CURIAE IN
SUPPORT OF THE PLAINTIFF
The Attorney General of the State of New York moves for permission to
submit the attached brief as amicus curiae. As explained in more detail in the brief,
the State of New York has a strong interest in the outcome of this case. First, it
has a significant interest in ensuring the effectiveness of the State’s recently
enacted Marriage Equality Act, ch. 95, § 3, 2011 N.Y. Laws __, and the State's
longstanding principle of marriage recognition, which extends to same-sex
marriages validly performed elsewhere. The federal statute at issue in this case,
the Defense of Marriage Act, 1 U.S.C. § 7, undermines the full promise of New
York’s law by discriminating among legally married couples based on sexual
orientation and sex.

Both of these classifications merit, and fail to satisfy,

heightened equal protection scrutiny.

Second, New York has a significant interest in ensuring that the federal
government does not intrude into areas that have been historically within the
control of the States, subject to federal constitutional limitations. DOMA is such an
intrusion because it displaces the traditional reliance by the federal government on
state-law definitions of marriage with a federal definition that is at odds with the
definition the New York legislature has adopted. Accordingly, the proposed brief
explains that DOMA implicates important federalism concerns that align with the
constitutional right to equal protection of the law asserted by the plaintiff.
The proposed brief meets the standard used in this district to determine
whether to permit participation by amicus curiae. No rule of this Court governs
motions to file amicus briefs.

See Zell/Merrill Lynch Real Estate Opportunity

Partners, Ltd. v. Rockefeller Center Props., Inc., No. 96 CIV. 1445 (JFK), 1996 WL
120672, at *4 (S.D.N.Y. Mar. 19, 1996). Rather, decisions addressing participation
as amicus curiae “are uniform in support of a district court’s broad discretion to
permit or deny amici appearances in a given case.” Id. These decisions examine
whether participation by amicus will be helpful and whether it will prejudice the
parties. Id.
The proposed brief “may be helpful to the Court” in deciding the parties’
dispositive motions, Zell at *4, because it elaborates on federalism concerns that the
Court should take into account in considering the case, as well as on the Plaintiff’s
equal-protection argument—including, for example, an argument about why DOMA
discriminates on the basis of sex discrimination as well as sexual orientation. And

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the filing of the proposed brief will not prejudice the parties, because Plaintiff, the
United States, and the Intervenors will all have ample opportunity to respond to
arguments and information presented in this brief under the Court’s briefing
schedule. The Intervenors will have opportunities to respond on August 1, 2011,
when they file their motion to dismiss and opposition to Plaintiff’s motion for
summary judgment and on September 9, 2011, when they file their reply in support
of their motion to dismiss. Plaintiff and the United States will have an opportunity
to respond on August 19, 2011.

WHEREFORE, it is respectfully requested that this Court grant the Attorney
General leave to file the attached amicus curiae brief.
Dated: July 26, 2011.
Respectfully submitted,
ERIC T. SCHNEIDERMAN
Attorney General of the
State of New York
BARBARA D. UNDERWOOD
Solicitor General
BENJAMIN N. GUTMAN
Deputy Solicitor General
By:

/s/ Simon Heller
SIMON HELLER
Assistant Solicitor General
120 Broadway, 25th floor
New York, NY 10271
P: 212-416-8020
F: 212-416-8962
[e-mail]

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