Windsor v. The United States Of America

Filing 69

RESPONSE in Opposition re: 65 MOTION to Strike Documents Referenced by Defendant-Intervenor in Opposition to Plaintiff's Motion for Summary Judgment.. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Kircher, Kerry)

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

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

MEMORANDUM OF LAW OF INTERVENOR-DEFENDANT THE BIPARTISAN
LEGAL ADVISORY GROUP OF THE UNITED STATES HOUSE OF
REPRESENTATIVES IN OPPOSITION TO PLAINTIFF’S MOTION TO STRIKE
Paul D. Clement
H. Christopher Bartolomucci
Conor B. Dugan
Nicholas J. Nelson
BANCROFT PLLC
1919 M Street, N.W., Suite 470
Washington, D.C. 20036
Counsel for the Bipartisan Legal Advisory
Group of the U.S. House of Representatives
OF COUNSEL:
Kerry W. Kircher, General Counsel
Christine Davenport, Senior Assistant Counsel
Katherine E. McCarron, Assistant Counsel
William Pittard, Assistant Counsel
Kirsten W. Konar, Assistant Counsel
OFFICE OF GENERAL COUNSEL
U.S. House of Representatives
219 Cannon House Office Building
Washington, D.C. 20515

TABLE OF CONTENTS
TABLE OF AUTHORITIES................................................................................................. ii
INTRODUCTION ................................................................................................................. 1
ARGUMENT......................................................................................................................... 3
I.

Plaintiff’s Contentions Are Thoroughly Incompatible With the Courts’
Consistent Practice in Constitutional Cases ........................................................ 3

II.

Legislative Facts are Not Subject to Formal Rules of Evidence ........................ 5

III.

The House’s Citations in Question Go To Classic Issues of Legislative Fact..... 9

CONCLUSION...................................................................................................................... 11

TABLE OF AUTHORITIES
Cases
Brown v. Bd. of Educ., 347 U.S. 483 (1954)..........................................................................3, 8
Brown v. Entm’t Merchs. Ass’n, 564 U.S. ___, No. 08-1448 (2011), Slip. Op.,
http://www.supremecourt.gov/opinions/10pdf/08-1448.pdf ................................................4, 5
Carhart v. Gonzales, 413 F.3d 791 (8th Cir. 2005)...............................................................6
Central Soya Co., Inc. v. United States, 15 C.I.T. 35 (Ct. Int’l Trade 1991) ........................10, 11
Charlton Mem’l Hosp. v. Sullivan, 816 F. Supp. 50 (D. Mass. 1993)...................................7-8
Daggett v. Comm’n on Gov’tal Ethics & Election Practices, 172 F.3d 104
(1st Cir. 1999) ........................................................................................................................6
Democratic Party of the U.S. v. Nat’l Conservative Political Action Comm.,
578 F. Supp. 797 (E.D. Pa. 1983) ..........................................................................................7
Dunagin v. City of Oxford, Miss., 718 F.2d 738 (5th Cir. 1983) ...........................................3, 4, 8
FCC v. Beach Commc’ns, Inc., 508 U.S. 307 (1993) ............................................................5
Ind. Harbor Belt R.R. Co. v. Am. Cyanamid Co., 916 F.2d 1174 (7th Cir. 1990).................6
Landell v. Sorrell, 382 F.3d 91 (2d Cir. 2004) ......................................................................9
Marshall v. Sawyer, 365 F.2d 105 (9th Cir. 1966) ................................................................6
San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973) ..........................8
United States v. Gould, 536 F.2d 216 (8th Cir. 1976) ...........................................................6
United States v. Hernandez-Fundora, 58 F.3d 802 (2d Cir. 1995) .......................................7
United States v. Virginia, 518 U.S. 515 (1996) .....................................................................3
Wiesmueller v. Kosobucki, 547 F.3d 740 (7th Cir. 2008)......................................................7
Statutes & Rules
Fed. R. Evid. 201 ...................................................................................................................6, 7, 10

ii

Other Authorities
Ann Hulbert, The Gay Science: What Do We Know About the Effects of
Same-Sex Parenting?, Slate.com, Mar. 12, 2004, www.slate.com/id/2097048 ...................1
David Popenoe, Life Without Father: Compelling New Evidence that Fatherhood
and Marriage Are Indispensable for the Good of Children and Society (1996) ...................1
George W. Dent, Jr., No Difference?: An Analysis of Same-Sex Parenting, ___ Ave
Maria L. Rev. ____ (forthcoming 2011),
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1848184 ..............................................1
George W. Dent, Jr., The Defense of Traditional Marriage, 15 J.L. & Pol. 581 (1999).......1
Greogory M. Herek et al., Demographic, Psychological, and Social Characteristics
of Self-Identified Lesbian, Gay, and Bisexual Adults in a U.S. Probability Sample,
7 Sex. Res. Soc. Pol’y 176 (2010) .........................................................................................2
Jennifer L. Wainright & Charlotte J. Patterson, Delinquency, Victimization, and
Substance Use Among Adolescents With Female Same-Sex Parents, 20 J. Family
Psych. 526 (2006) ..................................................................................................................1
Kenneth Culp Davis, The Requirement of a Trial–Type Hearing, 70 Harv. L. Rev.
193, 199 (1956)......................................................................................................................6
Lawrence A. Kurdek, “What Do We Know About Gay and Lesbian Couples?,”
14 Current Directions in Psych. Sci. no. 5 (Oct. 2005) .........................................................1
Linda J. Waite & Maggie Gallagher, The Case for Marriage: Why Married People are
Happier, Healthier, and Better Off Financially (2000).........................................................1
Lisa M. Diamond & Ritch C. Savin-Williams, Explaining Diversity in the Development
of Same-Sex Sexuality Among Young Women, 56 J. Soc. Issues 297 (2000).........................2
Lisa M. Diamond, New Paradigms for Research on Heterosexual and Sexual Minority
Development, 32 J. Clinical Child and Adolescent Psych. 490 (2003) .................................2
Nigel Dickson et al., Same Sex Attracting in a Birth Cohort: Prevalence and
Persistence in Early Adulthood, 56 Soc. Sci. & Med. 1607, 1612-13 (2003).......................2
Robert E. Keeton, Legislative Facts and Similar Things: Deciding Disputed Premise
Facts, 73 Minn. L. Rev. 1, 29-34 (1988) ...............................................................................8
Susan Golombok & Fiona Tasker, Gay Fathers, in The Role of the Father in Child
Development Ch. 11 (Michael E. Lamb ed. 2010) ................................................................1

iii

Vincent Blasi, Free Speech and the Widening Gyre of Fund-Raising: Why
Campaign Spending Limits May Not Violate the First Amendment After All,
94 Colum. L. Rev. 1281, 1282-83 (1994).............................................................................. 9

iv

INTRODUCTION
This Court should deny, as meritless, Plaintiff’s motion to strike documents referenced by
Intervernor-Defendant the Bipartisan Legal Advisory Group (the “House”) in its opposition to
Plaintiff’s motion for summary judgment and in its Rule 56.1 statement. By failing to account
for the distinction between adjudicative and legislative facts, and by asking the Court to apply
formal rules of evidence to legislative facts, the motion reflects a fundamental misunderstanding
of the nature of constitutional litigation.
Plaintiff seeks to strike the House’s references to twelve separate social-science studies,
articles, and treatises. Five of these are cited by the House to demonstrate the methodological
limitations, flaws, and incompleteness of the social science research used to support Plaintiff’s
allegations that parenting by same-sex couples is indistinguishable from parenting by oppositesex couples or a child’s biological mother and father.1 Three items are cited in support of the
common-sense conclusion that, other factors being equal, children are better off if raised by a
mother and a father.2 And four articles are cited by the House to illustrate that sexual orientation

1

Susan Golombok & Fiona Tasker, Gay Fathers, in The Role of the Father in Child
Development Ch. 11 (Michael E. Lamb ed. 2010); Jennifer L. Wainright & Charlotte J.
Patterson, Delinquency, Victimization, and Substance Use Among Adolescents With Female
Same-Sex Parents, 20 J. Family Psych. 526 (2006); Lawrence A. Kurdek, “What Do We Know
About Gay and Lesbian Couples?,” 14 Current Directions in Psych. Sci. no. 5 (Oct. 2005); Ann
Hulbert, The Gay Science: What Do We Know About the Effects of Same-Sex Parenting?,
Slate.com, Mar. 12, 2004, www.slate.com/id/2097048; George W. Dent, Jr., No Difference?: An
Analysis of Same-Sex Parenting, ___ Ave Maria L. Rev. ____ (forthcoming 2011),
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1848184. As Plaintiff recognizes, three of
these appeared in the report of one of Plaintiff’s own experts and were discussed at the expert’s
deposition, namely: Golombok & Tasker, Wainright & Patterson, and Kurdek. See App. to Pl.’s
Mem. in Supp. of Mot. to Strike (Aug. 10, 2011) (ECF No. 66).
2
Linda J. Waite & Maggie Gallagher, The Case for Marriage: Why Married People are
Happier, Healthier, and Better Off Financially (2000); David Popenoe, Life Without Father:
(Continued)

1

is more mutable than the characteristics that define other suspect classifications under equal
protection.3
Plaintiff essentially offers two related grievances regarding the House’s citations to these
materials. Both operate on the mistaken assumption that the materials cited by the House must
be treated as expert “evidence” for purposes of evidentiary and procedural rules. First, Plaintiff
objects that the materials cited are hearsay and otherwise not formally admissible in evidence
because the House’s attorneys are not qualified as experts on the relevant topics. Pl.’s Mem. in
Supp. of Mot. to Strike (Aug. 10, 2011) (ECF No. 66) at 1-2, 9-14. Second, Plaintiff requests
that these same materials be stricken because they are “intended expert or opinion testimony”
that was not “disclosed in writing, with notice to the other side, and subject to crossexamination.” Id. at 2; see also id. at 2-3, 14-20.
Plaintiff is tilting at windmills. Plaintiff seems to assume that the federal courts must
decide rules of constitutional law, that will be binding on the entire country for the indefinite
future, on a record limited to the statements of whatever individuals the parties happen to be able
and willing to discover, persuade, and pay to provide expert testimony in cases that often touch
on matters of considerable public controversy. That is not how constitutional litigation, at any
Compelling New Evidence that Fatherhood and Marriage Are Indispensable for the Good of
Children and Society (1996); George W. Dent, Jr., The Defense of Traditional Marriage, 15 J.L.
& Pol. 581 (1999).
3
Lisa M. Diamond, New Paradigms for Research on Heterosexual and Sexual Minority
Development, 32 J. Clinical Child and Adolescent Psych. 490 (2003); Lisa M. Diamond & Ritch
C. Savin-Williams, Explaining Diversity in the Development of Same-Sex Sexuality Among
Young Women, 56 J. Soc. Issues 297 (2000); Nigel Dickson et al., Same Sex Attracting in a Birth
Cohort: Prevalence and Persistence in Early Adulthood, 56 Soc. Sci. & Med. 1607, 1612-13
(2003); Greogory M. Herek et al., Demographic, Psychological, and Social Characteristics of
Self-Identified Lesbian, Gay, and Bisexual Adults in a U.S. Probability Sample, 7 Sex. Res. Soc.
Pol’y 176 (2010). Plaintiff again recognizes that the Herek study appeared in one of her expert
reports and was discussed at that expert’s deposition. See App. to Pl.’s Mem. in Supp. of Mot. to
Strike (Aug. 10, 2011) (ECF No. 66).

2

level, works. Every document that Plaintiff seeks to strike—and those that Plaintiff does not
seek to strike, but also claims are inadmissible, see First Windsor Ltr. to Ct., Aug. 12, 2011, at 3
n.1—is rightly considered by this Court as a legislative fact. In this light, Plaintiff’s allegation
that the House has attempted to put expert evidence before the Court without naming experts is
meritless. The House has done nothing of the sort, but instead has done what any litigant does in
constitutional cases: Marshal books, studies, scholarly articles, and other sources in support of
the rule of law for which the litigant is advocating. Thus, contrary to Plaintiff’s claims, the
House’s attorneys are not holding themselves out to be experts, but rather are citing to material
of which this Court may and should take note.4
ARGUMENT
I.

Plaintiff’s Contentions Are Thoroughly Incompatible With the Courts’ Consistent
Practice in Constitutional Cases.
If Plaintiff’s assumption had been the law, many of our nation’s most prominent

constitutional decisions could not have been decided the way they were. For instance, in Brown
v. Board of Education, 347 U.S. 483 (1954), the Supreme Court cited directly to “modern
authority” consisting of several works of social science. Id. at 494 n.11. And in United States v.
Virginia, 518 U.S. 515 (1996), while the Court discussed the trial below, it proceeded to reject
the trial court’s conclusion, relying instead on several works of historical scholarship to render
its decision. See id. at 523-24, 535-40. Such cases are by no means unique. See Dunagin v. City
of Oxford, Miss., 718 F.2d 738, 748 n.8 (5th Cir. 1983) (plurality opinion) (extensive collection

4

Indeed, the plaintiffs in Pedersen v. Office of Personnel Management, a related
DOMA challenge in the District of Connecticut for which the same experts and depositions are
being used, recognized this difference by submitting a Rule 56 statement along with a separate
statement of “non-adjudicative facts.” See Separate Statement of Non-Adjudicative Facts, No.
3:10-cv-01750 (D. Conn.) (July 15, 2011) (ECF No. 62), attached as Ex. A.

3

of Supreme Court precedents involving consideration of “[t]he writings and studies of social
science experts on legislative facts” even “without introduction into the record,” on matters
including, to give just two examples, “the deterrent effect of capital punishment” and “the
relation between obscenity and socially deleterious behavior”).
Further examples can be had simply by paging through the United States Reports in
search of constitutional decisions involving far-reaching social issues. Indeed, just a few weeks
ago, the Supreme Court decided a case in which all four opinions—the majority, concurrence,
and two dissents—relied heavily on analyses of such topics as literary history, video-game
technology, and historical American attitudes toward parental authority, all without the slightest
indication that any of the materials considered by the court (including numerous expert articles
and books) ever were introduced into evidence below. See Brown v. Entm’t Merchs. Ass’n, 564
U.S. ___, No. 08-1448 (2011), Slip. Op. at 8-11,
http://www.supremecourt.gov/opinions/10pdf/08-1448.pdf (Court’s analysis of literary and
entertainment history); id. at 11 (“Justice Alito has done considerable independent research”
regarding the level of violence in video games); id. at 16 n.9 (relying on “a 2005 study”
identified in an amicus brief indicating “that about 18% of retailers still sell alcohol to those
under the drinking age”); id., Alito, J, concurring in the judgment, at 12-15 (independent
research regarding current and likely future state of video-game technology); id., Thomas, J.,
dissenting, at 3-13 (comprehensive discussion of historical attitudes of parental authority); id.,
Breyer, J., dissenting, at 11 (citing Census Bureau study for proposition that “5.3 million gradeschool age children . . . are routinely home alone”); id. at 12-14 (citing numerous studies for
proposition that video games cause aggressive behavior, and do so more than violence in other

4

media); id. at 20-35 (appendices describing and documenting Justice Breyer’s comprehensive
and independent survey of the relevant social-science publications).
These and many other cases are flatly inconsistent with Plaintiff’s contention that, in
considering rules of constitutional law, courts and parties are subject to formal rules of evidence
and procedure, and confined to the formally-produced record, in identifying relevant scholarly
works and data.5 This is particularly true where, as here, one of the main issues being litigated is
whether a particular piece of legislation passes rational-basis review. As a matter of law, in such
cases the court’s inquiry is whether “there is any reasonably conceivable state of facts that could
provide a rational basis for the classification,” FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313
(1993). It would be anomalous indeed, not to mention virtually impossible to perform this
inquiry in a meaningful way, if the courts’ ability to investigate the universe of “reasonably
conceivable state[s] of facts,” id., were confined to a consideration of the views of whatever
experts the parties have hired. The practice in federal courts in constitutional cases is
overwhelmingly against such a rule, and Plaintiff offers no explanation of why this case is so
unusual as to require different treatment.
II.

Legislative Facts are Not Subject to Formal Rules of Evidence.
Plaintiff’s misguided motion stems from her failure to acknowledge the elementary

difference between adjudicative and legislative facts. Adjudicative facts “are simply the facts of

5

Plaintiff may attempt to argue that, although the courts themselves may refer to such
materials and data, parties may not do so without formally adducing them as evidence. There is
no sensible rationale for such an arrangement, which apparently would have no purpose other
than preventing the courts from hearing the views of the parties on materials relevant to
legislative fact-finding. Furthermore, the House is aware of no authority in support of such a
rule, and it obviously is inconsistent with the Supreme Court’s frequent reliance on legislative
facts identified in briefs, including those of amici curiae, who by definition had no opportunity
to introduce evidence in the trial court. E.g., Brown, majority opinion, Slip Op. at 9-11.

5

the particular case.” Fed. R. Evid. 201, advisory committee’s note. “‘Adjudicative facts are
facts about parties and their activities, businesses, and properties, usually answering the
questions of who did what, where, when, how, why, with what motive or intent; adjudicative
facts are roughly the kind of facts that go to a jury in a jury case . . . .’” Marshall v. Sawyer, 365
F.2d 105, 111 (9th Cir. 1966) (quoting Kenneth Culp Davis, The Requirement of a Trial–Type
Hearing, 70 Harv. L. Rev. 193, 199 (1956)); United States v. Gould, 536 F.2d 216, 219 (8th Cir.
1976) (same); see also Carhart v. Gonzales, 413 F.3d 791, 799 (8th Cir. 2005) (“Adjudicatory
facts are those relevant only to the particular parties involved in the case.”), rev’d on other
grounds, 550 U.S. 124 (2007).
On the other hand, legislative facts are simply “those which have relevance to legal
reasoning and the lawmaking process.” Fed. R. Evid. 201, advisory committee’s note. The
relevant “distinction is between facts germane to the specific dispute, which often are best
developed through testimony and cross-examination, and facts relevant to shaping a general rule,
which . . . more often are facts reported in books and other documents not prepared specially for
litigation or refined in its fires.” Indiana Harbor Belt R.R. Co. v. Am. Cyanamid Co., 916 F.2d
1174, 1182 (7th Cir. 1990). As Judge Boudin has explained for the First Circuit, “so-called
‘legislative facts,’ which go to the justification for a statute, usually are not proved through trial
evidence but rather by material set forth in the briefs, the ordinary limits on judicial notice
having no application to legislative facts.” Daggett v. Comm’n on Gov’tal Ethics & Election
Practices, 172 F.3d 104, 112 (1st Cir. 1999).
For purposes of the application of formal rules of evidence, the difference between
adjudicative and legislative facts is simple and stark. As stated by Judge Posner for the Seventh
Circuit, “besides facts in that sense—the kind of facts that a trier of fact determines—there are

6

background facts (sometimes called ‘legislative’ facts) that lie outside the domain of rules of
evidence yet are often essential to the decision of a case.” Wiesmueller v. Kosobucki, 547 F.3d
740, 742 (7th Cir. 2008) (emphasis added). In Wiesmueller, Judge Posner noted without
disapproval that the legislative facts did not appear “in the record compiled in summary
judgment or trial proceedings,” and that they “could be incorporated in the argument section of
the brief.” Id. Consistent with that analysis, the advisory committee’s notes to Federal Rule of
Evidence 201 make clear that, in examining legislative facts:
[T]he judge is unrestricted in his investigation and conclusion. He may
reject the propositions of either party or of both parties. He may consult
the sources of pertinent data to which they refer, or he may refuse to do so.
He may make an independent search for persuasive data or rest content
with what he has or what the parties present.
Fed. R. Evid. 201, advisory committee’s note (quotation marks omitted). “This . . . view . . .
renders inappropriate . . . any formal requirements of notice other than those already inherent in
affording opportunity to hear and be heard and exchanging briefs, and any requirement of
formal findings at any level.” Id. (emphasis added). As one district court has noted:
In constitutional litigation . . . , appellate courts and courts of first instance
have the ability to go beyond the formal rules of evidence and examine
what may be described as “legislative facts.” In seeking to determine the
rationality of a given measure in meeting permissible goals, the court may
examine scholarly articles not formally submitted or may guide its
conclusions by reasonable exercise of its deductive powers.
Democratic Party of the U.S. v. Nat’l Conservative Political Action Comm., 578 F. Supp. 797,
830 (E.D. Pa. 1983), aff’d in part and rev’d in part sub nom. Fed. Election Comm’n v. Nat’l
Conservative Political Action Comm., 470 U.S. 480 (1985); see also United States v. HernandezFundora, 58 F.3d 802, 811 (2d Cir. 1995) (“The omission of any treatment of legislative facts [in
Fed. R. Evid. 201] results from fundamental differences between adjudicative facts and
legislative facts.”) (citing Fed. R. Evid. 201, advisory committee’s note); Charlton Mem’l Hosp.

7

v. Sullivan, 816 F. Supp. 50, 53 (D. Mass. 1993) (“Rules of evidence and procedure, including
Federal Rule of Civil Procedure 56, may thus be inapplicable because they are designed for
determining ‘adjudicative’ rather than ‘premise’ facts.”) (citing Robert E. Keeton, Legislative
Facts and Similar Things: Deciding Disputed Premise Facts, 73 Minn. L. Rev. 1, 29-34 (1988)).
And the rule could not sensibly be otherwise. As the Fifth Circuit has explained,
specifically in the context of holding that a trial court determination of “legislative fact” is not
entitled to deferential review:
There are limits to which important constitutional questions should hinge
on the views of social scientists who testify as experts at trial. Suppose
one trial judge sitting in one state believes a sociologist who has found no
link between alcohol abuse and advertising, while another trial judge
sitting in another state believes a psychiatrist who has reached the opposite
conclusion. A similar situation actually occurred here. Should identical
conduct be constitutionally protected in one jurisdiction and illegal in
another? Should the fundamental principles of equal protection delivered
in Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), be
questioned if the sociological studies regarding racial segregation set out
in the opinion’s footnote 11 are shown to be methodologically flawed?
Should the constitutionality of the property tax as a means of financing
public education, resolved in San Antonio Independent School District v.
Rodriguez, 411 U.S. 1 (1973), depend on the prevailing views of educators
and sociologists as to the existence of a cost-quality relationship in
education? Does capital punishment become cruel and unusual when the
latest regression models demonstrate a lack of deterrence?
Dunagin, 718 F.2d at 748 n.8 (answering these rhetorical questions by rejecting trial court
determination of legislative fact, notwithstanding its adoption based on trial court’s consideration
of expert testimony); see also id. (“The writings and studies of social science experts on
legislative facts are often considered and cited by the Supreme Court with or without
introduction into the record or even consideration by the trial court.”).

8

III.

The House’s Citations in Question Go To Classic Issues of Legislative Fact.
Apparently unaware of this distinction, Plaintiff makes no mention of it in her

memorandum in support of her motion to strike.6 Even if she had, it is beyond reasonable
dispute that the citations and references Plaintiff seeks to strike go to issues of legislative fact,
and thus are not subject to the evidentiary and procedural rules she attempts to invoke. Plainly
the adjudicative facts in this case are matters such as who Plaintiff is, whether she in fact
purported to marry another woman in Canada and remained in that relationship until the
decedent’s death, whether Plaintiff is in fact the executor of the estate of her late state-law
6

In her second letter to this Court dated August 12, 2011, Plaintiff states that the Second
Circuit has rejected the sort of argument raised by the House. Second Windsor Ltr. to Ct., Aug.
12, 2011 at 1-2 (quoting Landell v. Sorrell, 382 F.3d 91, 136 n.24 (2d Cir. 2004), rev’d and
remanded sub nom. Randall v. Sorrell, 548 U.S. 230 (2006)). To the contrary, the issue in
Landell was not remotely similar to the one here. The footnote relied upon by Plaintiff merely
reflects the Second Circuit’s decision to remand to give the district court a first chance at finding
and considering legislative facts that the district court had not reached in its previous decision.
Landell, 382 F.3d at 136 n.24. Most importantly, although the Landell court decided to remand
rather than attempt to “resolve disputed legislative facts . . . on an insufficiently developed
record,” preferring to engage in first-instance legislative fact finding on appeal only in simpler
matters, id., it did absolutely nothing to suggest that on remand either the parties or the district
court were required to adduce evidence through cross-examined testimony, rather than by simply
identifying sources of data in their briefing as the House has done here. See id. at 135 & 136
n.24, 148.
Indeed, the Landell majority said nothing to contradict the dissenting judge’s
“assum[ption]” that on remand the majority did not contemplate “that the district court will take
testimony on the state of mind of the then-legislators, resolve credibility issues, and find facts on
these issues.” Id. at 205 (Winter, J., dissenting). If the Landell court had intended to create such
a sharp break from the long-standing and uniform practice of other Courts of Appeals and of the
Supreme Court, as described above, it surely would not have done so sub silentio and by
implication in the manner that Plaintiff seems to contend it did.
Moreover, and perhaps most tellingly, the Landell majority itself relied on at least one
law review article not for a conclusion of law but for an assessment of the effects of campaignfundraising pressures on “the quality of democratic representation,” despite the absence of any
indication that the article had been adduced in evidence below or its author formally identified as
an expert witness or subjected to cross-examination. See id. at 123 (majority opinion) (quoting
Vincent Blasi, Free Speech and the Widening Gyre of Fund-Raising: Why Campaign Spending
Limits May Not Violate the First Amendment After All, 94 Colum. L. Rev. 1281, 1282-83
(1994)).

9

spouse, and whether the estate in fact paid federal estate tax.7 None of the materials that
Plaintiff claims are inadmissible go to any of these questions. Instead, they relate to
paradigmatic issues of pure legislative fact—issues such as the degree of homosexual persons’
political power, the nature of discrimination that homosexual persons have faced, the relative
merits of parenting by same-sex and opposite-sex couples, and the relative mutability of sexual
orientation. Plaintiff’s own descriptions of the materials she seeks to have stricken, and the
purposes for which the House cites them, illustrate this fact clearly. See App. to Pl.’s Mem. in
Supp. of Mot. to Strike (Aug. 10, 2011) (ECF No. 66), column titled “Proposition BLAG
Attempts to Support.”
Legislative facts are so commonly relied on by courts in constitutional litigation, and the
propriety of this is so generally acknowledged, that the issue is not among those more frequently
litigated. However, an example of the rules regarding legislative facts is supplied by Central
Soya Co., Inc. v. United States, 15 C.I.T. 35 (Ct. Int’l Trade 1991). There the court addressed an
objection similar to that raised by Plaintiff in the instant matter. The court considered the
admissibility of a particular affidavit, where that affidavit allegedly was not submitted in
compliance with local rule 56 (because the affiant allegedly could not have testified “as to the
facts contained in his affidavit”). Id. at 36, 39. The court concluded that, because the “affidavit
presents legislative facts of which the court may take judicial notice,[8] the affidavit is admissible

7

These are precisely the types of facts that the plaintiffs in the parallel Pedersen case
included in their Rule 56 statement, to the exclusion of legislative facts that do not deal directly
with the plaintiffs and the relevant events in their lives. See Pls.’ Local Rule 56(a)1 Statement in
Supp. of Pls.’ Mot. for Summ. J., No. 3:10-cv-01750 (D. Conn.) (July 15, 2011) (ECF No. 61),
attached hereto as Ex. B.
8
In light of Federal Rule of Evidence 201’s limitation of its rule to “Judicial Notice of
Adjudicative Facts,” and the rule reflected in the advisory committee’s note that legislative facts
are not “appropriate subjects for any formalized treatment of judicial notice of facts,” the Soya
(Continued)
10

and the defendant’s motion to strike is denied.” Id. This Court should take the same approach as
to the materials challenged here.
CONCLUSION
In sum, Plaintiff’s motion to strike must fail because it does not acknowledge or reflect
an appreciation of the distinction between adjudicative and legislative facts, and improperly
seeks to hold materials obviously directed to legislative facts to the same formal evidentiary and
procedural standards as those directed to adjudicative ones. Plaintiff approaches this case as one
would approach a dispute concerning a contract or an automobile accident. But, as explained
thoroughly above, this is constitutional litigation subject to legislative fact-finding on the part of
the district court, and Plaintiff’s arguments therefore are entirely beside the point. Accordingly,
this Court should deny her motion to strike.

Co. court must be understood as using the phrase “judicial notice” in a broad, but not incorrect,
sense.

11

Respectfully submitted,
/s/ Paul D. Clement
Paul D. Clement
H. Christopher Bartolomucci
Conor B. Dugan
Nicholas J. Nelson
BANCROFT PLLC
1919 M Street, N.W., Suite 470
Washington, D.C. 20036
Telephone: [phone]
Facsimile: [phone]
Counsel for the Bipartisan Legal Advisory
Group of the U.S. House of Representatives
OF COUNSEL:
Kerry W. Kircher, General Counsel
Christine Davenport, Senior Assistant Counsel
Katherine E. McCarron, Assistant Counsel
William Pittard, Assistant Counsel
Kirsten W. Konar, Assistant Counsel
OFFICE OF GENERAL COUNSEL
U.S. House of Representatives
219 Cannon House Office Building
Washington, D.C. 20515
Telephone:
[phone]
Facsimile:
[phone]
August 19, 2011

CERTIFICATE OF SERVICE
I certify that on August 19, 2011, I served one copy of the Memorandum of Law of
Intervenor-Defendant the Bipartisan Legal Advisory Group of the United States House of
Representatives in Opposition to Plaintiff’s Motion to Strike by CM/ECF and by electronic mail
(.pdf format) on the following:
Roberta A. Kaplan, Esquire, & Andrew J. Ehrlich, Esquire
PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP
1285 Avenue of the Americas
New York City, New York 10019-6064
[e-mail]
[e-mail]
Alexis Karteron, Esquire, & Arthur Eisenberg, Esquire
NEW YORK CIVIL LIBERTIES UNION FOUNDATION
125 Broad Street, 19th Floor
New York City, New York 10004
[e-mail]
[e-mail]
James D. Esseks, Esquire, Melissa Goodman, Esquire, & Rose A. Saxe, Esquire
AMERICAN CIVIL LIBERTIES UNION FOUNDATION
125 Broad Street
New York City, New York 10004
[e-mail]
[e-mail]
[e-mail]
Jean Lin, Esquire
UNITED STATES DEPARTMENT OF JUSTICE, CIVIL DIVISION
20 Massachusetts Avenue, Northwest, Seventh Floor
Washington, District of Columbia 20530
[e-mail]
Simon Heller, Esquire
STATE OF NEW YORK OFFICE OF THE ATTORNEY GENERAL
120 Broadway
New York City, New York 10271
[e-mail]

/s/ Kerry W. Kircher
Kerry W. Kircher