Windsor v. The United States Of America

Filing 71

RESPONSE to Motion re: 28 MOTION for Summary Judgment.. Document filed by The United States Of America. (Lin, Jean)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

EDITH SCHLAIN WINDSOR, et al.,
Plaintiff,
v.
THE UNITED STATES OF AMERICA,
Defendant.

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

DEFENDANT UNITED STATES’ MEMORANDUM OF LAW
IN RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
AND INTERVENOR’S MOTION TO DISMISS

INTRODUCTION
Plaintiff challenges the constitutionality of Section 3 of the Defense of Marriage Act
(“DOMA”), 1 U.S.C. § 7. Plaintiff brings this action as the executor of her late same-sex
spouse’s estate, seeking a refund of $363,053.00 of federal estate taxes that – but for DOMA –
the estate would not have paid due to the marital deduction.
Section 3 of DOMA unconstitutionally discriminates. Section 3 treats same-sex couples
who are legally married under their states’ laws differently than similarly situated opposite-sex
couples, denying them the status, recognition, and significant federal benefits otherwise available
to married persons. Under well-established factors set forth by the Supreme Court to guide the
determination whether heightened scrutiny applies to a classification that singles out a particular
group, discrimination based on sexual orientation merits heightened scrutiny. Under this
standard of review, Section 3 of DOMA is unconstitutional.

1

BACKGROUND
I.

THE DEFENSE OF MARRIAGE ACT

The Defense of Marriage Act (“DOMA”) was enacted by Congress in 1996. DOMA has
two main provisions. Section 2 of DOMA provides that no state is required to give effect to any
public act, record, or judicial proceeding of another state that treats a relationship between two
persons of the same sex as a marriage under its laws. 28 U.S.C. § 1738C. Section 3 of DOMA
defines the terms “marriage” and “spouse” for purposes of federal law:
In 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. Section 3 thereby excludes same-sex relationships from the definition of marriage
or spouse for purposes of federal law, even if that relationship is recognized under state law.
Only Section 3 is at issue here.
II.

PLAINTIFF’S SAME-SEX MARRIAGE

Plaintiff Edith Schlain Windsor and her late spouse Thea Clara Spyer were married in
Toronto, Canada in May 2007. Am. Compl. ¶ 3. At that time, the couple had been living
together in New York for approximately 40 years. See id. ¶¶ 26, 28. New York law then
restricted marriage to opposite-sex couples, see Hernandez v. Robles, 7 N.Y.3d 338, 357 (2006),
but “accord[ed] marriages between same-sex couples the same legal validity as marriages
between opposite-sex couples. New York has long recognized as valid same-sex marriages that
were solemnized under the laws of other States or nations, such as plaintiff Edith Windsor’s
Canadian marriage to Thea Spyer.” Brief for the State of New York as Amicus Curiae in
2

Support of the Plaintiff at 1, ECF No. 40-1; see In re Estate of Ranftle, 81 A.D.3d 566 (1st Dep’t
2011); Lewis v. New York State Dep’t of Civ. Serv., 60 A.D.3d 216 (3rd Dep’t 2009), affirmed
on other grounds, Godfrey v. Spano, 13 N.Y.3d 358 (2009); Martinez v. County of Monroe, 50
A.D.3d 189 (4th Dep’t 2008).
III.

THE FEDERAL ESTATE TAX REFUND CLAIM

Plaintiff Windsor’s late spouse Spyer died in 2009. Am. Compl. ¶ 51. Spyer’s last will
and testament effectively passed the entire estate to Plaintiff. See id. ¶¶ 53-55. Section 2001 of
the Internal Revenue Code imposes a tax “on the transfer of the taxable estate of every decedent
who is a citizen or resident of the United States.” 26 U.S.C. § 2001(a). Section 2056 further
provides that the value of the taxable estate shall be determined “by deducting from the value of
the gross estate an amount equal to the value of any interest in property which passes or has
passed from the decedent to his surviving spouse,” if such interest is included in determining the
value of the gross estate. 26 U.S.C. § 2056. Because of DOMA, Spyer’s estate was ineligible to
exclude from the gross taxable estate property passed to Plaintiff. As a result, Spyer’s estate paid
$363,053.00 in estate taxes that it otherwise would not have had to pay had it been entitled to the
marital deduction. See Am. Comp. ¶ 73.
In her capacity as executor of Spyer’s estate, Plaintiff filed a refund claim with the
Internal Revenue Service (“IRS”) on April 7, 2010, on the basis that the decedent’s entire estate
passed to Plaintiff as decedent’s spouse and thus no estate tax should be imposed. Id. ¶ 76. The
IRS disallowed the claim for refund on May 26, 2010. Id. ¶ 77. Having satisfied the requirement
of 26 U.S.C. § 7422(a) that a taxpayer first timely file an administrative refund claim before

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filing suit, Plaintiff, as the executor of Spyer’s estate, filed the instant action on November 9,
2010, seeking a refund of the estate tax.
ARGUMENT
DOMA VIOLATES EQUAL PROTECTION
The Constitution’s guarantee of equal protection of the laws, applicable to the federal
government through the Due Process Clause of the Fifth Amendment, see Bolling v. Sharpe, 347
U.S. 497, 500 (1954), embodies a fundamental requirement that “all persons similarly situated
should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985).
DOMA Section 3 is inconsistent with that principle of equality, as it denies legally married samesex couples federal benefits that are available to similarly situated opposite-sex couples. For the
reasons set forth below, DOMA is subject to heightened scrutiny. Under that standard, Section 3
of DOMA cannot pass constitutional muster.
I.

Plaintiffs’ Equal Protection Challenge to DOMA Is Subject to Heightened Scrutiny
under Supreme Court Precedent.
As a general rule, legislation challenged under equal protection principles is presumed

valid and sustained as long as the “classification drawn by the statute is rationally related to a
legitimate state interest.” Cleburne, 473 U.S. at 440. “[W]here individuals in the group affected
by a law have distinguishing characteristics relevant to interests the [government] has authority
to implement,” courts will not “closely scrutinize legislative choices as to whether, how, and to
what extent those interests should be pursued.” Id. at 441. Where, however, legislation classifies
on the basis of a factor that “generally provides no sensible ground for differential treatment,”

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such as race or gender, the law demands more searching review and imposes a greater burden on
the government to justify the classification. Id. at 440–41.
Such suspect or quasi-suspect classifications are reviewed under a standard of heightened
scrutiny, under which the government must show, at a minimum, that a law is “substantially
related to an important government objective.” Clark v. Jeter, 586 U.S. 456, 461 (1988). This
more searching review enables courts to ascertain whether the government has employed the
classification for a significant and proper purpose, and serves to prevent implementation of
classifications that are the product of impermissible prejudice or stereotypes. See, e.g., City of
Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989) (plurality opinion); United States v.
Virginia (“VMI”), 518 U.S. 515, 533 (1996).
The Supreme Court has yet to rule on the appropriate level of scrutiny for classifications
based on sexual orientation.1 It has, however, established and repeatedly confirmed a set of

1

In neither Romer v. Evans, 517 U.S. 620 (1996), nor Lawrence v. Texas, 539 U.S. 558
(2003), did the Supreme Court opine on the applicability of heightened scrutiny to sexual
orientation. In both cases, the Court invalidated sexual orientation classifications under a more
permissive standard of review without having to decide whether heightened scrutiny applied
(Romer found that the legislation failed rational basis review, 517 U.S. at 634–35; Lawrence
found the law invalid under the Due Process Clause, 539 U.S. at 574–75).
Nor did the Court decide the question in its one-line per curiam order in Baker v. Nelson,
409 U.S. 810 (1972), in which it dismissed an appeal as of right from a state supreme court
decision denying marriage status to a same-sex couple, id. at 810. Baker did not concern the
constitutionality of a federal law, like DOMA Section 3, that distinguishes among couples who
are already legally married in their own states, and was motivated by animus toward gay and
lesbian people, as discussed later. Moreover, neither the Minnesota Supreme Court decision,
Baker v. Nelson, 191 N.W.2d 185, 187 (Minn. 1971), nor the questions presented in the
plaintiffs’ jurisdictional statement raised whether classifications based on sexual orientation are
subject to heightened scrutiny, see Baker v. Nelson, Jurisdictional Statement, No. 71-1027 (Sup.
Ct.), at 2; see also id. at 13 (repeatedly describing equal protection challenge as based on the
“arbitrary” nature of the state law). There is no indication in the Court’s order that the Court
nevertheless considered, much less resolved, that question.
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factors that guide the determination whether heightened scrutiny applies to a classification that
singles out a particular group. These include: (1) whether the group in question has suffered a
history of discrimination; (2) whether members of the group “exhibit obvious, immutable, or
distinguishing characteristics that define them as a discrete group”; (3) whether the group is a
minority or is politically powerless; and (4) whether the characteristics distinguishing the group
have little relation to legitimate policy objectives or to an individual’s “ability to perform or
contribute to society.” Bowen v. Gilliard, 483 U.S. 587, 602–03 (1987); see also Cleburne, 473
U.S. at 441–42.
The Second Circuit has not ruled on the appropriate level of scrutiny for sexual
orientation classifications. Although there is substantial authority in other circuits holding that
rational basis review generally applies to sexual orientation classifications,2 most of those
decisions fail to give adequate consideration to these enumerated factors.3 Indeed, the reasoning

2

A number of these cases involved challenges to military policy on homosexual conduct.
See Cook v. Gates, 528 F.3d 42, 45 (1st Cir. 2008); Richenberg v. Perry, 97 F.3d 256, 258 (8th
Cir. 1996); Thomasson v. Perry, 80 F.3d 915, 919 (4th Cir. 1996); Steffan v. Perry, 41 F.3d 677,
682 (D.C. Cir. 1994) (en banc); High Tech Gays v. Defense Indus. Sec. Clearance Office, 895
F.2d 563, 565 (9th Cir. 1990); Woodard v. United States, 871 F.2d 1068, 1069 (Fed. Cir. 1989);
Ben-Shalom v. Marsh, 881 F.2d 454, 456 (7th Cir. 1989). Classifications in the military context,
however, present different questions from classifications in the civilian context, see, e.g., Rostker
v. Goldberg, 453 U.S. 57, 70 (1981), and the military is not involved here.
3

Many other courts relied in whole or in part on Bowers v. Hardwick, 478 U.S. 186
(1986), which has since been overruled by Lawrence. See Equality Found. v. City of Cincinnati,
54 F.3d 261, 266–67 & n.2 (6th Cir. 1995); Steffan, 41 F.3d at 685; High Tech Gays, 895 F.2d at
571; Woodward, 871 F.2d at 1076; Ben-Shalom, 881 F.2d at 464; see also Richenberg, 97 F.3d at
260 (citing the reasoning of prior appellate decisions that were based on Bowers); Thomasson, 80
F.3d at 928 (same). Other courts relied on the fact that the Supreme Court has not recognized
that gays and lesbians constitute a suspect or quasi-suspect class. Johnson v. Johnson, 385 F.3d
503, 532 (5th Cir. 2004); Cook, 528 F.3d at 61. Though it is true that the Supreme Court has not
yet recognized that gays and lesbians constitute a suspect class, see note 1, supra, the Court has
thus far not been required to decide that issue and therefore cannot be said to have resolved it.
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of this line of case law traces back to circuit court decisions from the late 1980s and early 1990s,
a time when Bowers v. Hardwick, 478 U.S. 186 (1986), was still the law. The Supreme Court
subsequently overruled Bowers in Lawrence v. Texas, 539 U.S. 558 (2003), and the reasoning of
these circuit decisions no longer withstands scrutiny. As discussed below, careful consideration
of the factors the Supreme Court has identified as relevant to the inquiry demonstrates that
classifications based on sexual orientation should be subject to heightened scrutiny.
A.

Gays and Lesbians Are a Suspect or Quasi-Suspect Class under the Relevant
Factors Identified by the Supreme Court.
1.

Gays and Lesbians Have Been Subject to a History of
Discrimination.

First, courts have recognized that gay and lesbian individuals have suffered a long and
significant history of purposeful discrimination. See High Tech Gays v. Defense Indus. Sec.
Clearance Office, 895 F.2d 563, 574 (9th Cir. 1990) (“[W]e do agree that homosexuals have
suffered a history of discrimination . . . .”); see also Ben-Shalom v. Marsh, 881 F.2d 454, 465–66
(7th Cir. 1989) (noting that “[h]omosexuals have suffered a history of discrimination and still do,
though possibly now in less degree”). So far as we are aware, no court to consider this question
has ever ruled otherwise.
Discrimination against gay and lesbian individuals has a long history in this country,
Bowers, 478 U.S. at 192, from colonial laws ordering the death of “any man [that] shall lie with
mankind, as he lieth with womankind” to state laws that, until very recently, have “demean[ed]
the[] existence” of gay and lesbian people “by making their private sexual conduct a crime,”

Finally, the remaining courts to address the issue offered no pertinent reasoning in so doing.
Lofton v. Sec’y of the Dep’t of Children & Family Servs., 358 F.3d 804, 818 (11th Cir. 2004);
Nat’l Gay Task Force v. Bd. of Educ., 729 F.2d 1270, 1273 (10th Cir. 1984).
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Lawrence, 539 U.S. at 578. In addition to the discrimination reflected in DOMA itself, as
explained below, the federal government, state and local governments, and private parties all
have contributed to this long history of discrimination.4
i.

Discrimination by the Federal Government

The federal government has played a significant and regrettable role in the history of
discrimination against gay and lesbian individuals. For years, the federal government deemed
gays and lesbians unfit for employment, barring them from federal jobs on the basis of their
sexual orientation. See Employment of Homosexuals and Other Sex Perverts in Government,
Interim Report submitted to the Committee by its Subcommittee on Investigations pursuant to S.
Res. 280 (81st Congress), December 15, 1950, (“Interim Report”), at 9. In 1950, Senate
Resolution 280 directed a Senate subcommittee “to make an investigation in the employment by
the Government of homosexuals and other sexual perverts.” Patricia Cain, Litigating for Lesbian
and Gay Rights: A Legal History, 79 Va. L. Rev. 1551 , 1565–66 (1993). The Committee found
that from 1947 to 1950, “approximately 1,700 applicants for federal positions were denied
employment because they had a record of homosexuality or other sex perversion.” Interim Report
at 9.

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We do not understand the Supreme Court to have called into question this
well-documented history when it said in Lawrence that “it was not until the 1970’s that any State
singled out same-sex relations for criminal prosecution,” 539 U.S. at 570, and that only nine
States had done so by the time of Lawrence. The question before the Court in Lawrence was
whether, as Bowers had asserted, same-sex sodomy prohibitions were so deeply rooted in history
that they could not be understood to contravene the Due Process Clause. That the Court rejected
that argument and invalidated Texas’s sodomy law on due process grounds casts no doubt on the
duration and scope of discrimination against gay and lesbian people writ large.
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In April 1953, in the wake of the Senate investigation, President Eisenhower issued
Executive Order 10450, which officially added “sexual perversion” as a ground for investigation
and possible dismissal from federal service. Exec. Order No. 10450, 3 C.F.R. 936, 938 (1953);
see also 81 Fed. Reg. 2489. The Order expanded the investigations of civilian employees for
“sexual perversion” to include every agency and department of the federal government, and thus
had the effect of requiring the termination of all gay people from federal employment. See
General Accounting Office, Security Clearances: Consideration of Sexual Orientation in the
Clearance Process, at 2 (Mar. 1995).
The federal government enforced Executive Order 10450 zealously, engaging various
agencies in intrusive investigatory techniques to purge gays and lesbians from the federal civilian
workforce. The State Department, for example, charged “‘skilled’ investigators” with
“interrogating every potential male applicant to discover if they had any effeminate tendencies or
mannerisms,” used polygraphs on individuals accused of homosexuality who denied it, and sent
inspectors “to every embassy, consulate, and mission” to uncover homosexuality. Edward L.
Tulin, Note, Where Everything Old Is New Again—Enduring Episodic Discrimination Against
Homosexual Persons, 84 Tex. L. Rev. 1587, 1602 (2006). In order to identify gays and lesbians
in the civil service, the FBI “sought out state and local police officers to supply arrest records on
morals charges, regardless of whether there were convictions; data on gay bars; lists of other
places frequented by homosexuals; and press articles on the largely subterranean gay world.”
Williams Institute, “Documenting Discrimination on the Basis of Sexual Orientation and Gender
Identity in State Employment,” ch. 5 at 7, available at http://www.law.ucla.edu/williamsinstitute
/programs/EmploymentReports_ENDA.html (“Williams Report”). The United States Postal
9

Service (“USPS”), for its part, aided the FBI by establishing “a watch list on the recipients of
physique magazines, subscrib[ing] to pen pal clubs, and initiat[ing] correspondence with men
whom [it] believed might be homosexual.” Id. The mail of individuals concluded to be
homosexual would then be traced “in order to locate other homosexuals.” Id. The end result was
thousands of men and women forced from their federal jobs based on the suspicion that they
were gay or lesbian. It was not until 1975 that the Civil Service Commission prohibited
discrimination on the basis of sexual orientation in federal civilian hiring. See General
Accounting Office, Security Clearances: Consideration of Sexual Orientation in the Clearance
Process (1995) (describing the federal government’s restrictions on the employment of gay and
lesbian individuals).5
The history of the federal government’s discrimination against gays and lesbians extends
beyond the employment context. For decades, gay and lesbian noncitizens were categorically
barred from entering the United States, on grounds that they were “persons of constitutional
psychopathic inferiority,” “mentally defective,” or sexually deviant. Lesbian/Gay Freedom Day
Comm., Inc. v. INS, 541 F. Supp. 569, 571–72 (N.D. Cal. 1982) (quoting Ch. 29, § 3, 39 Stat.
874 (1917)), aff’d, Hill v. INS, 714 F.2d 1470 (9th Cir. 1983). As the Supreme Court held in
Boutilier v. INS, 387 U.S. 118 (1967), “[t]he legislative history of [the Immigration and
Nationality Act of 1952] indicates beyond a shadow of a doubt that the Congress intended the
phrase ‘psychopathic personality’ to include homosexuals.” Id. at 120. This exclusion remained
5

Open military service by gays and lesbians was prohibited, first by regulation and then
by statute, 10 U.S.C. § 654 (2007), until the “Don’t Ask, Don’t Tell” Repeal Act, enacted last
year, 111 P.L. 321, 124 Stat. 3515 (2010). The President, Secretary of Defense, and Chairman of
the Joint Chiefs of Staff certified the repeal on July 22, 2011, and repeal will become effective 60
days from that date, on September 20, 2011.
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in effect until Congress repealed it in 1990. See Immigration Act of 1990, Pub. L. No. 101-649,
104 Stat. 4978.
ii.

Discrimination by State and Local Governments

Like the federal government, state and local governments have long discriminated against
gays and lesbians in public employment. By the 1950s, many state and local governments had
banned gay and lesbian employees, as well as gay and lesbian “employees of state funded schools
and colleges, and private individuals in professions requiring state licenses.” Williams Report,
ch. 5 at 18. Many states and localities began aggressive campaigns to purge gay and lesbian
employees from government services as early as the 1940s. Id. at 18–34.
This employment discrimination was interrelated with longstanding state law prohibitions
on sodomy; the discrimination was frequently justified by the assumption that gays and lesbians
had engaged in criminalized and immoral sexual conduct. See, e.g., Childers v. Dallas Police
Dep’t, 513 F. Supp. 134, 138 (N.D. Tex. 1981) (holding that police could refuse to hire gays),
aff’d without opinion, 669 F.2d 732 (5th Cir. 1982); Gaylord v. Tacoma Sch. Dist. No. 10, 559
P.2d 1340, 1342 (Wash. 1977) (upholding the dismissal of an openly gay school teacher who was
fired based on a local school board policy that allowed removal for “immorality”); Burton v.
Cascade Sch. Dist. Union High Sch., No.5, 512 F.2d 850, 851 (9th Cir. 1975) (upholding the
dismissal of a lesbian teacher in Oregon upon the adoption of a resolution stating that she was
being terminated “because of her immorality of being a practicing homosexual”); Bd. of Educ. v.
Calderon, 110 Cal. Rptr. 916, 919 (1973) (holding that state sodomy statute was a valid ground
for discrimination against gays as teachers); see also Baker v. Wade, 553 F. Supp. 1121, 1128 n.9
(N.D. Tex. 1982) (“A school board member testified that [the defendant] would have been fired
11

[from his teaching position] if there had even been a suspicion that he had violated [the Texas
sodomy statute].”), rev’d, 769 F.2d 289 (5th Cir. 1985) (holding that challenged Texas
homosexual sodomy law was constitutional). Some of these discriminatory employment policies
continued into the 1990s. See Shahar v. Bowers, 114 F.3d 1097, 1105 & n.17, 1107–10 (11th
Cir. 1997) (en banc) (upholding Georgia Attorney General’s Office’s rescission of a job offer to
plaintiff after she mentioned to co-workers her upcoming wedding to her same-sex partner); City
of Dallas v. England, 846 S.W.2d 957 (Tex. App. 1993) (holding unconstitutional Dallas Police
Department policy denying gays and lesbians employment).
Based on similar assumptions regarding the criminal sexual conduct of gays and lesbians,
states and localities also denied child custody and visitation rights to gay and lesbian parents.
See, e.g., Ex parte H.H., 830 So. 2d 21, 26 (Ala. 2002) (Moore, C.J., concurring) (concurring in
denial of custody to lesbian mother on ground that “homosexual conduct is . . . abhorrent,
immoral, detestable, a crime against nature, and a violation of the laws of nature and of nature’s
God [and] an inherent evil against which children must be protected”); Pulliam v. Smith, 501
S.E.2d 898, 903–04 (N.C. 1998) (upholding denial of custody to a gay man who had a same-sex
partner; emphasizing that father engaged in sexual acts while unmarried and refused to “counsel
the children against such conduct”); Bowen v. Bowen, 688 So. 2d 1374, 1381 (Miss. 1997)
(holding that the trial court did not err in granting a father custody of his son on the basis that
people in town had rumored that the son’s mother was involved in a lesbian relationship);
Bottoms v. Bottoms, 457 S.E.2d 102, 108 (Va. 1995) (noting that, although the Court had
previously held “that a lesbian mother is not per se an unfit parent,” the “[c]onduct inherent in
lesbianism is punishable as a Class 6 felony in the Commonwealth” and therefore “that conduct
12

is another important consideration in determining custody”); Roe v. Roe, 324 S.E.2d 691, 692,
694 (Va. 1985) (holding that father, who was in a gay relationship, was “an unfit and improper
custodian as a matter of law” because of his “continuous exposure of the child to his immoral
and illicit relationship”).
State and local law also has been used to prevent gay and lesbian people from associating
freely. Liquor licensing laws, both on their face and through discriminatory enforcement, were
long used to harass and shut down establishments patronized by gays and lesbians. See William
N. Eskridge, Jr., Privacy Jurisprudence and the Apartheid of the Closet, 1946–1961, 24 Fla. St.
U. L. Rev. 703, 762–66 (1997) (describing such efforts in New York, New Jersey, Michigan,
California, and Florida); see also Irvis v. Scott, 318 F. Supp. 1246, 1249 (M.D. Pa. 1970)
(describing such efforts in Pennsylvania). State and local police also relied on laws prohibiting
lewdness, vagrancy, and disorderly conduct to harass gays and lesbians, often when gay and
lesbian people congregated in public. See, e.g., Pryor v. Mun. Court, 599 P.2d 636, 644 (Cal.
1979) (“Three studies of law enforcement in Los Angeles County indicate[d] that the
overwhelming majority of arrests for violation of [the ‘lewd or dissolute’ conduct statute]
involved male homosexuals.”); Steven A. Rosen, Police Harassment of Homosexual Women and
Men in New York City, 1960–1980, 12 Colum. Hum. Rts. L. Rev. 159, 162–63 (1982); Florida
State Legislative Investigation Committee (Johns Committee), Report: Homosexuality and
Citizenship in Florida, at 14 (1964) (“Many homosexuals are picked up and prosecuted on
vagrancy or similar non-specific charges, fined a moderate amount, and then released.”). Similar
practices persist to this day. See, e.g., Calhoun v. Pennington, No. 09-3286 (N.D. Ga.)
(involving September 2009 raid on Atlanta gay bar and police harassment of patrons); Settlement
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in Gay Bar Raid, N.Y. Times (Mar. 23, 2011) (involving injuries sustained by gay bar patron
during raid by Fort Worth police officers and the Texas Alcoholic Beverage Commission).
Efforts to combat discrimination against gays and lesbians also have led to significant
political backlash, as evidenced by the long history of successful state and local initiatives
repealing laws that protected gays and lesbians from discrimination. A rash of such initiatives
succeeded in the late 1970s. See, e.g., St. Paul Citizens for Human Rights v. City Council of the
City of St. Paul, 289 N.W.2d 402, 404 (Minn. 1979) (St. Paul, Minnesota in 1978); Christopher
R. Leslie, The Evolution of Academic Discourse on Sexual Orientation and the Law, 84 Chi.
Kent L. Rev. 345, 359 (2009) (Boulder, Colorado in 1974); Rebecca Mae Salokar, Note, Gay and
Lesbian Parenting in Florida: Family Creation Around the Law, 4 Fla. Int’l. U. L. Rev. 473, 477
(2009) (Dade County, Florida in 1977); Gay rights referendum in Oregon, Washington Post,
May 11, 1978, at A14 (Wichita, Kansas in 1978); Why tide is turning against homosexuals, U.S.
News & World Report, June 5, 1978, at 29 (Eugene, Oregon in 1978). The laws at issue in
Romer and in Equality Foundation v. City of Cincinnati, 54 F.3d 261 (6th Cir. 1995), are just two
of a number of more recent examples from the 1990s. In fact, in May 2011, the Tennessee
legislature enacted a law stripping counties and municipalities of their ability to pass local
non-discrimination ordinances that would prohibit discrimination on the basis of sexual
orientation, and repealing the ordinances that had recently been passed by Nashville and other
localities.6 Similar responses have followed states’ decisions to recognize same-sex marriages.
See infra at 18-19.

6

See State of Tennessee, Public Chapter No. 278, available at http://state.tn.us/sos/acts
/107/pub/pc0278.pdf.
14

iii.

Discrimination by Private Parties

Finally, private discrimination against gays and lesbians in employment and other areas
has been pervasive and continues to this day.7 See, e.g., Williams Report, ch. 5 at 8–9
(explaining that private companies and organizations independently adopted discriminatory
employment policies modeled after the federal government’s, and as “federal employers shared
police and military records on gay and lesbian individuals with private employers, these same
persons who were barred from federal employment on the basis of their sexual orientation were
simultaneously blacklisted from employment by many private companies”). The pervasiveness
of private animus against gays and lesbians is underscored by statistics showing that gays and
lesbians continue to be among the most frequent victims of all reported hate crimes. See H.R.
Rep. 111-86, at 10 (2009) (“According to 2007 FBI statistics, hate crimes based on the victim’s
sexual orientation—gay, lesbian, or bisexual—constituted the third highest category
reported—1,265 incidents, or one-sixth of all reported hate crimes.”); Kendall Thomas, Beyond
the Privacy Principle, 92 Colum. L. Rev. 1431, 1464 (1992).
In sum, gays and lesbians have suffered a long history of discrimination based on
prejudice and stereotypes. That history counsels strongly in favor of heightened scrutiny, giving
courts ample reason to question whether sexual orientation classifications are the product of
hostility rather than a legitimate government purpose.

7

Private discrimination, as well as official discrimination, is relevant to whether a group
has suffered a history of discrimination for purposes of the heightened scrutiny inquiry.
Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (plurality) (“[W]omen still face pervasive,
although at times more subtle, discrimination in our educational institutions, in the job market
and, perhaps most conspicuously, in the political arena.”).
15

2.

Gays and Lesbians Exhibit Immutable Characteristics that
Distinguish Them as a Group.

Over ten years ago, in considering whether gays and lesbians constituted a “particular
social group” for asylum purposes, the Ninth Circuit recognized that “[s]exual orientation and
sexual identity are immutable,” and that “[h]omosexuality is as deeply ingrained as
heterosexuality.” Hernandez-Montiel v. INS, 225 F.3d 1084, 1093 (9th Cir. 2000) (quotation
omitted). But see High Tech Gays, 895 F.2d at 573 (stating that sexual orientation is not
immutable because “it is behavioral”). Sexual orientation, the Ninth Circuit explained, is
“fundamental to one’s identity,” and gay and lesbian individuals “should not be required to
abandon” it to gain access to fundamental rights guaranteed to all people. Hernandez-Montiel,
225 F.3d at 1093.
This conclusion is consistent with the overwhelming consensus in the scientific
community that sexual orientation is an immutable characteristic. See e.g., G.M. Herek, et al.
Demographic, Psychological, and Social Characteristics of Self-Identified Lesbian, Gay, and
Bisexual Adults 7, 176–200 (2010), available at http://www.springerlink.com/content/
k186244647272924/fulltext.pdf (noting that in a national survey conducted with a representative
sample of more than 650 self-identified lesbian, gay, and bisexual adults, 95 percent of the gay
men and 83 percent of lesbian women reported that they experienced “no choice at all” or “very
little choice” about their sexual orientation). There is also a consensus among the established
medical community that efforts to change an individual’s sexual orientation are generally futile
and potentially dangerous to an individual’s well-being.8 See Am. Psychological Ass’n, Report
8

In fact, every major mental health organization has adopted a policy statement
cautioning against the use of so-called “conversion” or “reparative” therapies to change the
16

of the American Psychological Association Task Force on Appropriate Therapeutic Responses to
Sexual Orientation, at v (2009), available at http://www.apa.org/pi/lgbt/resources/therapeuticresponse.pdf (“[E]fforts to change sexual orientation are unlikely to be successful and involve
some risk of harm.”); see also Richard A. Posner, Sex and Reason 101 n.35 (1992) (describing
“failure of treatment strategies . . . to alter homosexual orientation”); Douglas Haldeman, The
Practice and Ethics of Sexual Orientation Conversion Therapy, 62 J. Consulting & Clinical
Psychol. 221, 226 (1994) (describing “lack of empirical support for conversion therapy”).
Furthermore, sexual orientation need not be a “visible badge” that distinguishes gays and
lesbians as a discrete group for the classification to warrant heightened scrutiny. As the Supreme
Court has made clear, a classification may be “constitutionally suspect” even if it rests on a
characteristic that is not readily visible, such as illegitimacy. Mathews v. Lucas, 427 U.S. 495,
504 (1976); see id. at 506 (noting that “illegitimacy does not carry an obvious badge, as race or
sex do,” but nonetheless applying heightened scrutiny). Whether or not gays and lesbians could
hide their identities in order to avoid discrimination, they are not required to do so. As the Court
has recognized, sexual orientation is a core aspect of identity, and its expression is an “integral
part of human freedom,” Lawrence, 539 U.S. at 562, 576–77.

sexual orientation of gays and lesbians. These policy statements are reproduced in a 2009
publication of the American Psychological Association, available at http://www.apa.org/pi/lgbt
/resources/just-the-facts.pdf.
17

3.

Gays and Lesbians Are Minorities with Limited Political Power.

Third, gays and lesbians are a minority group,9 Able v. United States, 968 F. Supp. 850,
863 (E.D.N.Y. 1997), rev’d, 155 F.3d 628 (2d Cir. 1998), that has historically lacked political
power. To be sure, many of the forms of historical discrimination described above have subsided
or been repealed. But efforts to combat discrimination have frequently led to successful
initiatives to scale back protections afforded to gay and lesbian individuals. As described above,
the adoption of ballot initiatives specifically repealing laws protecting gays and lesbians from
discrimination (including the laws at issue in Romer and Equality Foundation v. City of
Cincinnati) are examples of such responses. In fact, “[f]rom 1974 to 1993, at least 21
referendums were held on the sole question of whether an existing law or executive order
prohibiting sexual orientation discrimination should be repealed or retained. In 15 of these 21
cases, a majority voted to repeal the law or executive order.” Robert Wintemute, Sexual
Orientation and Human Rights 56 (1995).
The strong backlash in the 1970s, 1980s, and 1990s to these civil rights ordinances has
been followed in the 2000s with similar political backlashes against same-sex marriage. In 1996,
at the time DOMA was enacted, only three states had statutes restricting marriage to opposite-sex
couples. National Conference of State Legislatures, Same-Sex Marriage, Civil Unions and
9

It is difficult to offer a definitive estimate for the size of the gay and lesbian community
in the United States. According to an analysis of various data sources published in April 2011 by
the Williams Institute, there appear to be 8 million adults in the United States who are lesbian,
gay or bisexual, comprising 3.5 percent of the adult population. See Gary J. Gates, How Many
People Are Lesbian, Gay, Bisexual, and Transgender? available at
http://www3.law.ucla.edu/williamsinstitute/pdf/How-many-people-are-LGBT-Final.pdf (last
reviewed June 30, 2011). Ascertaining the precise percentage of gays and lesbians in the
population, however, is not relevant to the analysis, as it is clear that whatever the data reveal,
there is no dispute that gays and lesbians constitute a minority in the country.
18

Domestic Partnerships, available at http://www.ncsl.org/default.aspx?tabid=16430 (last updated
May 2011). Today, thirty-seven states have such statutes, and thirty states have constitutional
amendments explicitly restricting marriage to opposite-sex couples. Id.
California and Iowa are recent examples of such backlash. In May 2008, the California
Supreme Court held that the state was constitutionally required to recognize same-sex marriage.
In re Marriage Cases, 183 P.3d 384, 419 (Cal. 2008). In November 2008, California’s voters
passed Proposition 8, which amended the state constitution to restrict marriage to opposite-sex
couples. See Strauss v. Horton, 207 P.3d 48, 120 (Cal. 2009). In November 2010, when three
Iowa state supreme court justices who had been part of a unanimous decision legalizing same-sex
marriage were up for reelection, Iowa voters recalled all of them. See A.G. Sulzberger, Ouster of
Iowa Judges Sends Signal to Bench, N.Y. Times, Nov. 4, 2010, at A1.
Beyond these state ballot initiatives, the relatively recent passage of anti-sodomy laws
singling out same-sex conduct, such as the Texas law the Supreme Court ultimately invalidated
in Lawrence, indicates that gays and lesbians lack the consistent “ability to attract the [favorable]
attention of the lawmakers.” Cleburne, 473 U.S. at 445.
This is not to say that the political process is closed entirely to gay and lesbian people.
But complete foreclosure from meaningful political participation is not the standard by which the
Supreme Court has judged “political powerlessness.” When the Court ruled in 1973 that genderbased classifications were subject to heightened scrutiny, Frontiero v. Richardson, 411 U.S. 677
(1973), women already had won major political victories, including a constitutional amendment
granting the right to vote and protection against employment discrimination under Title VII. As

19

Frontiero makes clear, the “political power” factor does not require a complete absence of
political protection, and its application is not intended to change with every political success.10
4.

Sexual Orientation Bears No Relation to Legitimate Policy Objectives or
Ability to Perform or Contribute to Society.

Even where other factors might point toward heightened scrutiny, the Court has declined
to treat as suspect those classifications that generally bear on “ability to perform or contribute to
society.” See Cleburne, 473 U.S. at 441 (holding that mental disability is not a suspect
classification) (quotation omitted); see also Mass. Bd. of Retirement v. Murgia, 427 U.S. 307,
315 (1976) (holding that age is not a suspect classification).
Sexual orientation is not such a classification. As the history described above makes
clear, prior discrimination against gay and lesbian people has rested not on their ability to
contribute to society, but on the basis of invidious and long-discredited views that gays and
lesbians are, for example, sexual deviants or mentally ill. As the American Psychiatric
Association stated more than 35 years ago, “homosexuality per se implies no impairment in
judgment, stability, reliability or general social or vocational capabilities.” Resolution of the
Am. Psychiatric Ass’n (Dec. 15, 1973); see also Minutes of the Annual Meeting of the Council of
Representatives, 30 Am. Psychologist 620, 633 (1975) (reflecting a similar American
Psychological Association statement).

10

In determining that gender classifications warranted heightened scrutiny, the plurality
in Frontiero noted that “in part because of past discrimination, women are vastly
underrepresented in this Nation’s decision-making councils. There has never been a female
President, nor a female member of this court. Not a single woman presently sits in the United
States Senate, and only 14 women hold seats in the House of Representatives.” 411 U.S. at 686
n. 17 (plurality opinion).
20

Just as a person’s gender, race, or religion does not bear an inherent relation to a person’s
ability or capacity to contribute to society, a person’s sexual orientation bears no inherent relation
to his or her ability to perform or contribute. President Obama elaborated on this principle in the
context of the military when he signed the Don’t Ask, Don’t Tell Repeal Act of 2010:
[S]acrifice, valor and integrity are no more defined by sexual orientation than they
are by race or gender, religion or creed. . . . There will never be a full accounting
of the heroism demonstrated by gay Americans in service to this country; their
service has been obscured in history. It’s been lost to prejudices that have waned
in our own lifetimes. But at every turn, every crossroads in our past, we know gay
Americans fought just as hard, gave just as much to protect this nation and the
ideals for which it stands.
White House, Remarks by the President and Vice President at Signing of the Don’t Ask, Don’t
Tell Repeal Act of 2010 (Dec. 22, 2010), available at http://www.whitehouse.gov/the-press
-office/2010/12/22/remarks-president-and-vice-president-signing-don’t-ask-don’t-tell-repeal-a.
The Supreme Court has also recognized that opposition to homosexuality, though it may
reflect deeply held personal religious and moral views, is not a legitimate policy objective.
Lawrence, 539 U.S. at 577 (“[T]he fact that a governing majority in a State has traditionally
viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting
the practice.”); Romer, 517 U.S. at 633 (noting that a law cannot broadly disfavor gays and
lesbians because of “personal or religious objections to homosexuality” (quotation omitted)).
Whether premised on pernicious stereotypes or simple moral disapproval, laws classifying on the
basis of sexual orientation rest on a “factor [that] generally provides no sensible ground for
differential treatment,” see Cleburne, 473 U.S. at 441; thus, such laws merit heightened scrutiny.

21

II.

DOMA Fails Heightened Scrutiny.
For the reasons described above, heightened scrutiny is the appropriate standard by which

to review classifications based on sexual orientation, including DOMA Section 3.11 In reviewing
a legislative classification under heightened scrutiny, the government must establish, at a
minimum, that the classification is “substantially related to an important government objective.”
Clark, 586 U.S. at 461. Moreover, under any form of heightened scrutiny, a statute must be
defended by reference to the “actual [governmental] purpose” behind it, not a different
“rationalization.” VMI, 518 U.S. at 535–36.
Section 3 fails this analysis. The legislative history demonstrates that the statute was
motivated in significant part by animus towards gays and lesbians and their intimate and family
relationships.12 Among the interests expressly identified by Congress in enacting DOMA was
“the government’s interest in defending traditional notions of morality.” H.R. Rep. No. 104-664,
at 15 (1996), reprinted in 1996 U.S.C.C.A.N. 2905 (“H.R. Rep.”). The House Report repeatedly
claims that DOMA upholds “traditional notions of morality” by condemning homosexuality, and
by expressing disapproval of gays and lesbians and their committed relationships. See, e.g., H.R.
Rep. at 15–16 (“[J]udgment [opposing same-sex marriage] entails both moral disapproval of

11

The government takes no position on whether sexual orientation classifications should
be considered suspect, as opposed to quasi-suspect, and therefore whether DOMA should be
subject to intermediate or strict scrutiny.
12

We note that some members of the majority in Congress that enacted DOMA have
changed their views on the law, and the legitimacy of its rationales, since 1996. See, e.g., Bob
Barr, No Defending the Defense of Marriage Act, L.A. Times, Jan. 5, 2009, available at
http://www.latimes.com/news/politics/newsletter/la-oe-barr5-2009jan05,0,2810156.
story?track=newslettertext. In reviewing the statute under heightened scrutiny, however, what is
relevant are the views of Congress at the time of enactment, as evidenced by the legislative
record.
22

homosexuality and a moral conviction that heterosexuality better comports with traditional
(especially Judeo-Christian) morality.”); id. at 16 (stating that same-sex marriage “legitimates a
public union, a legal status that most people . . . feel ought to be illegitimate” and “put[s] a
stamp of approval . . . on a union that many people . . . think is immoral”); id. at 15 (“Civil laws
that permit only heterosexual marriage reflect and honor a collective moral judgment about
human sexuality.”); id. at 31 (favorably citing the holding in Bowers that an “anti-sodomy law
served the rational purpose of expressing the presumed belief . . . that homosexual sodomy is
immoral and unacceptable”).
The House Report also explicitly stated an interest in extending legal preferences to
heterosexual couples in various ways to “promote heterosexuality” and discourage
homosexuality. H.R. Rep. at 15 n.53 (“Closely related to this interest in protecting traditional
marriage is a corresponding interest in promoting heterosexuality. . . . Maintaining a preferred
societal status of heterosexual marriage thus will also serve to encourage heterosexuality . . . .”).
Thus, one of the goals of DOMA was to provide gays and lesbians with an incentive to abandon
or at least to hide from view a core aspect of their identities, which legislators regarded as
immoral and inferior.
This record evidences the kind of animus and stereotype-based thinking that the Equal
Protection Clause is designed to guard against. Cf. Dep’t of Agriculture v. Moreno, 413 U.S.
528, 534 (1973) (“If the constitutional conception of ‘equal protection of the laws’ means
anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular
group cannot constitute a legitimate governmental interest.”); see also Lawrence, 539 U.S. at 580
(O’Connor, J., concurring) (“[The Supreme Court] ha[s] consistently held . . . that some
23

objectives, such as a bare desire to harm a politically unpopular group, are not legitimate state
interests.”). And even if Congress’s opposition to gay and lesbian relationships could be
understood as reflecting moral or religious objections, that would remain an impermissible basis
for sexual-orientation discrimination. See Romer, 517 U.S. at 633 (holding that law cannot
broadly disfavor gays and lesbians because of “personal or religious objections to
homosexuality”). Discouraging homosexuality, in other words, is not a governmental interest
that justifies sexual orientation discrimination.
Nor is there some other important governmental interest identified by Congress and
substantially advanced by Section 3 of DOMA, as required under heightened scrutiny. In
addition to expressing bare hostility to gay and lesbian people and their relationships, the House
Report articulated an interest in “defending and nurturing the institution of traditional,
heterosexual marriage.” H.R. Rep. at 12. That interest does not support Section 3. As an initial
matter, reference to tradition, no matter how long established, cannot by itself justify a
discriminatory law under equal protection principles. VMI, 518 U.S. at 535 (invalidating
longstanding tradition of single-sex education at Virginia Military Institute). But even if it were
possible to identify a substantive and animus-free interest in protecting “traditional” marriage on
this record, there would remain a gap between means and end that would invalidate Section 3
under heightened scrutiny. Section 3 of DOMA has no effect on recognition of the same-sex
marriages Congress viewed as threatening to “traditional” marriage; it does not purport to defend
“traditional, heterosexual marriage” by preventing same-sex marriage or by denying legal
recognition to such marriages. Instead, Section 3 denies benefits to couples who are already
legally married in their own states, on the basis of their sexual orientation and not their marital
24

status. Thus, there is not the “substantial relationship” required under heightened scrutiny
between an end of defending “traditional” marriage and the means employed by Section 3.
The same is true of Congress’s interest in “promoting responsible procreation and
child-rearing,” which the House Report identified not as a separate rationale for DOMA Section
3, but as the basis for its larger interest in defending “the institution of traditional, heterosexual
marriage.” See, e.g., H.R. Rep. at 12–13 (“At bottom, civil society has an interest in maintaining
and protecting the institution of heterosexual marriage because it has a deep and abiding interest
in encouraging responsible procreation and child-rearing.”); id. at 14 (“Were it not for the
possibility of begetting children inherent in heterosexual unions, society would have no
particular interest in encouraging citizens to come together in a committed relationship.”)
(emphasis added). Again, even assuming that Congress legislated on the basis of an independent
and animus-free interest in promoting responsible procreation and child-rearing, that interest is
not materially advanced by Section 3 of DOMA and so cannot justify that provision under
heightened scrutiny.
First, there is no sound basis for concluding that same-sex couples who have committed
to marriages recognized by state law are anything other than fully capable of responsible
parenting and child-rearing. To the contrary, many leading medical, psychological, and social
welfare organizations have issued policies opposing restrictions on lesbian and gay parenting
based on their conclusions, supported by numerous studies, that children raised by gay and
lesbian parents are as likely to be well-adjusted as children raised by heterosexual parents. See,
e.g., American Academy of Pediatrics, Coparent or Second-Parent Adoption by 16 Same-Sex
Parents (Feb. 2002), available at http://aappolicy.aappublications.org/cgi/content/full
25

/pediatrics;109/2/339; American Psychological Association, Sexual Orientation, Parents, &
Children (July 2004), available at http://www.apa.org/about/governance/council/policy
/parenting.aspx; American Academy of Child and Adolescent Psychiatry, Gay, Lesbian,
Bisexual, or Transgender Parents Policy Statement (Oct. 2008), available at
http://www.aacap.org/cs/root/policy_statements/gay_lesbian_transgender_and_bisexual_parents_
policy_statement; American Medical Association, AMA Policy Regarding Sexual Orientation,
available at http://www.ama-assn.org/ama/pub/about-ama/our-people/member-groupssections/glbt-advisorycommittee/ama-policy-regarding-sexual-orientation.shtml; Child Welfare
League of America, Position Statement on Parenting of Children by Lesbian, Gay, and Bisexual
Adults, available at http://www.cwla.org/ programs/culture/glbtqposition.htm. For this reason
alone, no penalty or prohibition on same-sex marriage can be “substantially” related to an interest
in promoting responsible child-rearing.
Second, there is no evidence in the legislative record that denying federal benefits to
same-sex couples legally married under state law operates in any way to encourage responsible
child-rearing, whether by opposite-sex or same-sex couples, and it is hard to imagine what such
evidence would look like. In enacting DOMA, Congress expressed the view that marriage plays
an “irreplaceable role” in child-rearing. H.R. Rep. at 14. But Section 3 does nothing to affect the
stability of heterosexual marriages or the child-rearing practices of heterosexual married couples.
Instead, it denies the children of same-sex couples what Congress sees as the benefits of the
stable home life produced by legally recognized marriage, and therefore, on Congress’s own
account, undermines rather than advances an interest in promoting child welfare.

26

Finally, as to “responsible procreation,” even assuming an important governmental
interest in providing benefits only to couples who procreate, Section 3 is not sufficiently tailored
to that interest to survive heightened scrutiny. Many state-recognized same-sex marriages
involve families with children; many opposite-sex marriages do not. And the ability to procreate
has never been a requirement of marriage or of eligibility for federal marriage benefits; oppositesex couples who cannot procreate for reasons related to age or other physical characteristics are
permitted to marry and to receive federal marriage benefits. Cf. H.R. Rep. at 14 (noting “that
society permits heterosexual couples to marry regardless of whether they intend or are even able
to have children” but describing this objection to DOMA as “not a serious argument”).13
In sum, the official legislative record makes plain that DOMA Section 3 was motivated in
substantial part by animus toward gay and lesbian individuals and their intimate relationships,
and Congress identified no other interest that is materially advanced by Section 3. Section 3 of
DOMA is therefore unconstitutional.14

13

The House Report also identifies preservation of scarce government resources as an
interest underlying Section 3’s denial of government benefits to same-sex couples married under
state law. See H.R. Rep. at 18. In fact, many of the rights and obligations affected by Section 3,
such as spousal evidentiary privileges and nepotism rules, involve no expenditure of federal
funds, and in other cases, exclusion of state-recognized same-sex marriages costs the government
money by preserving eligibility for certain federal benefits. But regardless of whether an interest
in preserving resources could justify Section 3 under rational basis review, it is clear that it will
not suffice under heightened scrutiny; the government may not single out a suspect class for
exclusion from a benefits program solely in the interest of saving money. See Graham v.
Richardson, 403 U.S. 365, 374–75 (1971) (holding that state may not advance its “valid interest
in preserving the fiscal integrity of its programs” through alienage-based exclusions).
14

In the amicus brief filed by the State of New York (ECF No. 40-1), New York argues,
among other things, that DOMA improperly intrudes into the power of the states to define
marriage. Brief for the State of New York at 8-10. No party has raised a Tenth Amendment
claim, so this Court need not and should not address it. Section 3 of DOMA is unconstitutional
because it violates the Constitution’s guarantee of equal protection of the laws, but the Tenth
27

CONCLUSION
For the foregoing reasons, Section 3 of DOMA fails heightened scrutiny, and this Court
should deny the motions to dismiss Plaintiff’s constitutional claim and grant Plaintiff’s motion
for summary judgment.
Dated: August 19, 2011

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

Amendment does not independently preclude the federal government from defining those
relationships that qualify for federal benefits.
28

CERTIFICATE OF SERVICE
I hereby certify that on August 19, 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 (NY)
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

29