Windsor v. The United States Of America

Filing 49

MOTION to Dismiss Amended Complaint. Document filed by The United States Of America.(Lin, Jean)

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,
v.
THE UNITED STATES OF AMERICA,
Defendant.

)
)
)
)
)
)
)
)
)
)
)
)

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

DEFENDANT’S MOTION TO DISMISS AMENDED COMPLAINT
PLEASE TAKE NOTICE that Defendant the United States of America, through
undersigned counsel, respectfully submits this Motion to Dismiss Plaintiff’s Amended
Complaint to request that the Court rule on Plaintiff’s challenge to the constitutionality of
Section 3 of the Defense of Marriage Act (“DOMA”), 1 U.S.C. § 7. As the President and the
Attorney General have stated, the Department of Justice will no longer defend the
constitutionality of Section 3 of DOMA as applied to legally married same-sex couples.
Pursuant to the President’s direction, however, Executive departments and agencies will continue
to comply with Section 3 unless and until it is repealed by Congress or there is a definitive ruling
by the Judicial Branch that Section 3 is unconstitutional. The Department of Justice represents
the only defendant, the United States, in this litigation. Only a judgment against the United
States could afford Plaintiff the relief she seeks, and only a judgment for or against the United
States can definitively resolve the case or controversy between Plaintiff and the United States.
The Bipartisan Legal Advisory Group (“BLAG”) of the United States House of
Representatives has moved to intervene in this case for the limited purpose of defending the
constitutionality of Section 3 of DOMA, ECF No. 12, and the Court granted that motion on June

3, 2011. ECF No. 26. We understand that on August 1, 2011, BLAG plans to move as an
intervenor to dismiss Plaintiff’s constitutional challenge to Section 3. Nevertheless, as
Defendant previously explained in response to BLAG’s motion to intervene, ECF No. 20,
Congress’s interest in the constitutional validity of a law does not itself confer standing to enter
an action as a party. The Attorney General, however, is committed to providing Congress a full
and fair opportunity to participate in this litigation. The continuing role of the Executive Branch
in this litigation ensures the existence of a justiciable case or controversy. In addition, the
Department of Justice will take the procedural steps necessary to enable BLAG to present
arguments in support of the constitutionality of Section 3. Accordingly, although pursuant to this
Court’s Scheduling Order the Department intends to file a brief on August 19, 2011 that presents
the government’s position on Plaintiff’s equal protection challenge, Defendant submits this
motion as a procedural matter, to ensure that this Court can consider arguments on both sides of
the constitutional issue and to ensure that this Court has jurisdiction to enter judgment on the
basis of those arguments.
If this Court agrees with BLAG on the constitutionality of Section 3 of DOMA, it should
dismiss Plaintiff’s Amended Complaint and enter judgment for Defendants. If this Court agrees
with Plaintiff and the United States as to the constitutionality of Section 3 of DOMA, it should
not dismiss the First Amended Complaint, but rather should enter such relief as is appropriate
given the procedural posture of this action at the time of such determination.
Dated: August 1, 2011

Respectfully submitted,
TONY WEST
Assistant Attorney General
ARTHUR R. GOLDBERG
Assistant Branch Director

2

/s/ Jean Lin
JEAN LIN (NY Bar No. 4074530)
Senior Trial Counsel
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Ave., N.W.
Washington, DC 20530
E-mail: [e-mail]
Tel: [phone]
Fax: [phone]

3

CERTIFICATE OF SERVICE
I hereby certify that on August 1, 2011, I electronically transmitted the foregoing
document to the Clerk of Court using the ECF System for filing and transmittal of a Notice of
Electronic Filing to the following ECF registrants:
Roberta A. Kaplan
Andrew J. Ehrlich
Paul, Weiss, Rifkind, Wharton & Garrison LLP
1285 Avenue of the Americas
New York, NY 10019
Alexis B. Karteron
Arthur N. Eisenberg
New York Civil Liberties Union
125 Broad Street
New York, NY 10004
James D. Esseks
Melissa Goodman
Rose A. Saxe
American Civil Liberties Union
Lesbian and Gay Rights Project
125 Broad Street
New York, NY 10004-2400
Paul D. Clement
H. Christopher Bartolomucci
Conor B. Dugan
Bancroft PLLC
1919 M Street, N.W., Suite 470
Washington, D.C. 20006
Kerry Kircher
U.S. House of Representatives
219 Cannon House Office Building
Washington, DC 20515

4