Windsor v. The United States Of America

Filing 43

MEMORANDUM AND ORDER: For the reasons listed herein, the plaintiff's letter motion to compel is granted to the extent that BLAG shall answer Interrogatories 1 and 3 and RFA no. 1 by August 1, 2011. In all other respects, the motion is denied. (Signed by Magistrate Judge James C. Francis on 7/28/2011) Copies Mailed By Chambers. (mro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

(ECF)

EDITH SCHLAIN WINDSOR, in her
capacity as Executor of the
Estate of THEA CLARA SPYER,

10 Civ. 8435 (BSJ)

(JCF)

MEMORANDUM

AND ORDER

Plaintiff,
- against ­

USDSSDNY
DOCUMENT
ELECTRONICALLY FILED

THE UNITED STATES OF AMERICA,
Defendant.

DOC#: ______________
DATE FILED:

JAMES C. FRANCIS IV
UNITED STATES MAGISTRATE JUDGE
Edith

Schlain Windsor brings

this

action

r/ l.~ /20\ \

challenging

the

constitutionality of Section 3 of the Defense of Marriage Act
("DOMA"), 1 U. S. C.

§

7, on the ground that it discriminates against

her on the basis of her sexual orientation in violation
equal protection component of the Fifth Amendment.

the

Ms. Windsor's

claim arises from the fact that, upon the death of her spouse, Thea
Spyer,

the government refused to apply the estate tax marital

deduction on the basis of DOMA.

The Bipartisan Legal Advisory

Group of the United States House of Representatives ("BLAG") has
intervened as a party defendant in order to present arguments for
upholding DOMA.
plaintiff
admission.

served

Accordingly, during the course of discovery, the
BLAG

with

interrogatories

and

requests

for

BLAG objected to all of the interrogatories and most of

the requests for admission.

The plaintiff has now submitted a
1

letter motion pursuant to Rule 37 of the Federal Rules of Civil
Procedure seeking an order compelling BLAG to respond.

For the

reasons that follow, the plaintiff's motion is granted in part and
denied in part.
Discussion
On May 11, 2011, I issued a scheduling order providing in part
that the part

would exchange written discovery requests by June

3, 2011 and that all discovery would be completed by July 11, 2011.
In accordance with that schedule, the plaintiff served BLAG with
requests for admission and interrogatories on June 3,
served its responses and objections on July 8.

and BLAG

After the parties

met and conferred and were unable to resolve the

disputes over

BLAG's objections, the plaintiff submitted the instant motion.
A. Interrogatories
The two interrogatories pressed by the plaintiff ask "What, if
anything,

do you contend are the compelling justifications for

section 3 of DOMA, 1 U.S.C.

§

77"

(Interrogatory no. 1) and "What,

if anything, do you assert are the legitimate government interests
rationally

advanced

(Interrogatory no. 3).

by

section

3

of

DOMA,

1

U.S.C.

§

7?"

BLAG objects to both on the ground that, to

the extent they are construed as contention interrogatories, they
are premature.
responded,

That argument is disingenuous; at the time BLAG

the discovery deadline was three days away, and it is
2

now closed.
BLAG also objects to Interrogatory no. 1 because"
the

legal

conclusion

justification

to

that

enact

Congress

Section

3

of

assumes

required

a

compelling

DOMA."

In

fact,

interrogatory assumes only that, if the Court finds st

the

ct scrutiny

to be the appropriate standard of review, BLAG may wish to proffer
compelling justifications for DOMA.

The plaintiff is entitled to

know what those justifications are, and BLAG is there

directed

to answer Interrogatory 1.
In response to Interrogatory no. 3, BLAG sets forth authority
for the proposition that under rational basis analysis, there is no
need to demonstrate the basis on which the legislature actually
chose to create classifications.

That may be an accurate summary

of the law, but it misses the point.

BLAG will presumably suggest

to the Court potentially rational grounds for the enactment of
DOMA, and it must disclose those to the plaintiff in response to a
proper contention interrogatory.

Accordingly, BLAG shall answer

Interrogatory no. 3 as well.
Requests for Admission
Fourteen requests for admission ("RFAs") are in dispute.
first asks BLAG to
[a]dmit that if, at the time of her death, Thea Spyer had
been married to a man instead of a woman, who was a U.S.
citizen and who survived Thea Spyer's death, her estate
3

The

would have qualified for the estate tax marital
deduction, 26 U.S.C. § 2056(a), and would not have been
liable for any federal estate tax.
(RFAno.l).

Although BLAG acknowledges that opposite-sex spouses

may

for

qualify

the

estate

tax

marital

deduction,

it

denies

knowledge or information sufficient to admit or deny the specific
request for admission.

It is not conceivable that BLAG lacks the

wherewithal to make a determination based on the tax forms that Ms.
Windsor has produced in discovery whether the estate tax marital
deduction would apply if she and Ms. Spyer had been opposite sex
spouses.
The

BLAG shall either admit or deny RFA no. 1.
balance

of

the

RFAs

at

issue

seek

sweeping historical and sociological phenomena.

admissions

about

For example, RFA

no. 3 requests that BLAG "[a] dmit that in the twentieth century and
continuing to the present, lesbians and gay men have experienced a
history of unequal treatment in the United States because of the
sexual orientation.

Similarly, RFA no. 10 seeks an admission that

II

"sexual orientation is unrelated to an individual's ability to
perform in society.

II

And RFA no.

14 asks BLAG to "[a] dmit that

lesbians and gay men are generally no less capable of

loving,

nurturing, and supporting their children than heterosexual men and
women.

II

Requests

admission are ill-suited to such complex issues.

Any complete answer to the questions posed here could fill volumes
4

~_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _',"1I,!'

Had the RFAs

and would not serve to streamline this litigation.

been framed as contention interrogatories - - for example,
BLAG contend that

"Does

lesbians and gay men have not experienced a

history of unequal treatment in the United States because of their
sexual

they

have

served

litigation position.

But

orientation?"

flushing

out

appropriate

BLAG's
requests

for

might

admission,

a

purpose

they

and BLAG need not

are

in
not

respond

further to them.
Conclusion
For the reasons discussed above, the plaintiff's letter motion
to

compel

is

granted

to

the

extent

that

BLAG

shall

Interrogatories 1 and 3 and RFA no. 1 by August 1, 2011.
other respects, the motion is denied.
SO ORDERED.

~r'~~E

JAMES C. FRANCIS IV
UNITED STATES MAGISTRATE JUDGE

Dated: New York, New York
July 28, 2011
Copies mailed this date:
Roberta A. Kaplan, Esq.
Andrew J. Ehrlich, Esq.

Paul Weiss Rifkind Wharton & Garrison LLP
1285 Avenue of the Americas
New York, New York 10019
5

answer
In all

Al
s B. Karteron, Esq.
Arthur N.
senberg, Esq.
Melissa Goodman, Esq.
New York Civil Liberties Union Foundation
125 Broad Street, 19th Floor
New York, New York 10004
James D. Esseks, Esq.
Rose A. Saxe, Esq.
American Civil Liberties Union Foundation
Lesbian and Gay Rights Project
125 Broad Street, 18th Floor
New York, New York 10004
Paul D. Clement, Esq.
H. Christopher Bartolomucci, Esq.
Bancroft PLLC
1919 M Street, NW
Suite 470
Washington, DC 20036
Jean Lin, Esq.
U.S. Department of Justice
Civil Division
20 Massachusetts Avenue, N.W., 7th Fl.
Washington, DC 20530

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