Windsor v. The United States Of America

Filing 80

REPLY MEMORANDUM OF LAW in Support re: 52 MOTION to Dismiss.. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Kircher, Kerry)

UNITED STATES DISTRICT COURT
FOR THE 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)

REPLY MEMORANDUM OF LAW OF INTERVENOR-DEFENDANT
THE BIPARTISAN LEGAL ADVISORY GROUP
OF THE UNITED STATES HOUSE OF REPRESENTATIVES
IN SUPPORT OF ITS MOTION TO DISMISS
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
INTRODUCTION .................................................................................................................1
ARGUMENT.........................................................................................................................1
I.

BAKER v. NELSON MANDATES DISMISSAL ......................................................1

II.

DEFERENTIAL RATIONAL-BASIS REVIEW APPLIES TO DOMA .................3
A.
B.

III.

Plaintiff Badly Misstates the House’s Position on RationalBasis Review ................................................................................................ 3
DOMA Is a Classic Line-Drawing Statute ................................................... 5

DOMA EASILY SURVIVES RATIONAL-BASIS REVIEW................................ 7
A.

Protecting the Societal Benefits of Marriage from the
Unknown Consequences of Its Redefinition Is an Eminently
Rational Basis for Legislation....................................................................... 7

B.

Preserving a Fundamental Assumption on Which PreviouslyEnacted Marriage Statutes Were Created Is a Rational Basis ...................... 8

C.

DOMA Is Rationally Related to the Legitimate Government Interest
in a Consistent Nationwide Federal Definition of Marriage....................... 10

D.

DOMA Is Rationally Related to the Government Interest
in Maintaining the Link Between Marriage and Children .......................... 11

E.

DOMA Advances the Government Interest in Fostering
Marriages That Provide Children with a Mother and Father...................... 14

F.

Because DOMA Rationally Serves All the Above Legitimate
Government Interests, Romer v. Evans and Related Cases Are
Not Applicable Here ................................................................................... 16

CONCLUSION................................................................................................................... 17

i

TABLE OF AUTHORITIES
Cases
Adarand Constructors, Inc. v. Pena,
515 U.S. 200 (1995).................................................................................................................... 2
Bacon v. Toia,
648 F.2d 801 (2d Cir. 1981) ....................................................................................................... 4
Baker v. Nelson,
409 U.S. 810 (1972).................................................................................................................... 1
Dandridge v. Williams,
397 U.S. 471 (1970)............................................................................................................ 11, 15
Fed. Commc’ns Comm’n v. Beach Commc’ns,
508 U.S. 307 (1993).......................................................................................................... 5, 9, 16
Gill v. Office of Pers. Mgmt.,
699 F. Supp. 2d 374 (D. Mass. 2010)............................................................................. 8, 10, 11
Hassan v. Wright,
45 F.3d 1063, 1069 (7th Cir. 1995) ........................................................................................... 6
Heller v. Doe,
509 U.S. 312 (1993)........................................................................................................ 9, 11, 16
Lawrence v. Texas,
539 U.S. 558 (2003).................................................................................................................... 2
Mandel v. Bradley,
432 U.S. 173 (1977).................................................................................................................... 2
Mathews v. Diaz,
426 U.S. 67 (1976)...................................................................................................................... 5
Romer v. Evans,
517 U.S. 620 (1996).............................................................................................................. 2, 16
Schweiker v. Wilson,
450 U.S. 221 (1981).................................................................................................................... 5
U.S. Dep’t of Agric. v. Moreno,
413 U.S. 528 (1973).................................................................................................................. 16
Vacco v. Quill,
521 U.S. 793 (1997).................................................................................................................... 4

ii

Watson v. City of Memphis,
373 U.S. 526 (1963).................................................................................................................... 8

Statutes & Legislative Authorities
1 U.S.C. § 7..................................................................................................................................... 7
26 U.S.C. § 7703(b) ........................................................................................................................ 3
28 U.S.C. § 1738C .......................................................................................................................... 7
42 U.S.C. § 416............................................................................................................................... 3
142 Cong. Rec. 17094 (1996) ....................................................................................................... 17
142 Cong. Rec. 22467 (1996) ....................................................................................................... 17

Other Sources
Adam P. Romero et al., Census Snapshot at 3 (The Williams Institute, Dec. 2007).................... 12
Estimated Median Age at First Marriage by Sex: 1890 to Present, U.S. Census Bureau............ 13
Living Arrangements of Children Under 18 Years Old: 1960 to Present, Current Population
Survey, March and Annual Social and Economic Supplements, 2010 and Earlier (U.S.
Census Bureau, U.S. Dep’t of Commerce, Nov. 2010) ................................................................ 12
Stephanie J. Ventura, Changing Patterns of Nonmarital Childbearing in the United States,
Ctrs. for Disease Control & Prevention (May 2009) .................................................................... 13

iii

INTRODUCTION
When people disagree in the legislative process, they often are required to listen to each
other so as to be able to rebut arguments actually made by opponents and change enough minds
to bring about legislative change. Proponents of same-sex marriage have proven adept at this
and, as a result, have won numerous important legislative victories. The plaintiff here, however,
has taken a different tack—she seeks to brand those who disagree with her as irrational and
motivated by animus. The result is disheartening: Plaintiff has failed to engage fairly many of
the House’s contentions in support of DOMA, instead attacking “irrational” arguments that she
apparently wishes the House had put forward. Thus, not only does Plaintiff’s Memorandum of
Law in Opposition to Defendant-Intervenor’s Motion to Dismiss (Aug. 19, 2011) (ECF No. 70)
(“Pl.’s Opp’n”) leave the House’s actual contentions unscathed, it demonstrates why the
definition of marriage is far better suited to resolution in a legislative process that requires
supporters of same-sex marriage to convince others that their positions are right, rather than
arguing to a court that the bipartisan majority that enacted DOMA acted utterly irrationally.
ARGUMENT
I.

BAKER v. NELSON MANDATES DISMISSAL.
In its opening memorandum, the House identified Baker v. Nelson, 409 U.S. 810 (1972),

as controlling precedent on the issue of whether equal protection requires governmental
recognition of same-sex marriages. Plaintiff’s response to this controlling Supreme Court
precedent comes at the very end of her opposition, see Pl.’s Opp’n at 32-35, and is entirely
unpersuasive. Plaintiff first notes that a summary dismissal by the Supreme Court no longer will
be binding on the lower courts if it is inconsistent with later doctrinal developments, and she
maintains that Baker is inconsistent with the Supreme Court’s later application of heightened

1

scrutiny to sex-based classifications, as well as the decisions in Romer v. Evans, 517 U.S. 620
(1996), and Lawrence v. Texas, 539 U.S. 558 (2003). Pl.’s Opp’n at 32-33. However, Plaintiff
twice disavows any intent to bring a sex-discrimination challenge against DOMA, see id. at 5 n.2
& 34 n.17, so any developments in equal protection jurisprudence governing sex discrimination
are wholly irrelevant to Baker’s vitality with respect to Plaintiff’s claims.1 Moreover, in
Lawrence (which was decided after Romer), the Supreme Court expressly disavowed that it was
applying heightened scrutiny and just as expressly stated that it was not reaching the question
“whether the government must give formal recognition to any relationship that homosexual
persons seek to enter.” 539 U.S. at 578. Short of mentioning Baker by name, there is nothing
more that the Lawrence Court could have done to leave Baker’s holding unimpaired.
Plaintiff also argues that Baker does not control this case because she, unlike Baker,
claims already to have been married under state law to a same-sex partner and is seeking federal
recognition of her relationship as a marriage. Pl.’s Opp’n at 33-35. Plaintiff offers no
explanation of how this distinction is material. Both Baker and this case deal with the question
of whether the Constitution requires that same-sex relationships be recognized as marriages
under the law of the applicable sovereign. Because the equal protection inquiry under the Fifth
Amendment is “precisely the same” as that applicable to state action under the Fourteenth
Amendment, Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 217 (1995), Baker controls.

1

Plaintiff’s reliance on the Minnesota Supreme Court’s doctrinal framing of Baker
further is incorrect as a matter of law because a summary affirmance by the Supreme Court
“affirm[s] the judgment but not necessarily the reasoning by which it was reached.” Mandel v.
Bradley, 432 U.S. 173, 176 (1977) (per curiam) (citation omitted). In any event, no matter the
legal theory on which Baker was decided, its holding is clear: Equal protection does not require
the government to recognize same-sex marriages.

2

There is no support for an independent rule that would compel the federal government to
recognize a same-sex relationship as a marriage once the relevant state has done so. Such a rule
would turn the Supremacy Clause upside down and would be utterly unworkable.2 If interpreted
leniently, Congress would remain free to define whatever categories of family relationships it
wished so long as it simply avoided labeling those categories with traditional family-law terms
such as “marriage.” On the other hand, if interpreted strictly, such a rule would require an
impossibly slippery judicial inquiry into whether the substance of any given federally-defined
relationship crossed the line into the area of family law marked “states only” so that, regardless
of what Congress denominated or intended in this regard, it would be supplanted by a patchwork
of definitions from fifty plus jurisdictions. Because states do not have the constitutional power
to dictate to Congress the meaning of terms that appear in federal statutes—including the terms
“marriage” and “spouse”—Baker must control whether the federal government is required to
recognize same-sex marriages.
II.

DEFERENTIAL RATIONAL-BASIS REVIEW APPLIES TO DOMA.
A.

Plaintiff Badly Misstates the House’s Position on Rational-Basis Review.

Plaintiff derisively accuses the House of contending that DOMA is exempt from rationalbasis review because it “does not actually exclude [state-law] married same-sex couples from

2

It also would be inconsistent with Congress’ long history of enacting laws creating
unique federal definitions of the terms “marriage” and “spouse.” The federal tax code, for
instance, excludes some couples “living apart” from its definition of married persons even if
those couples are married under state law. 26 U.S.C. § 7703(b). The Social Security Act
includes detailed definitions of the words “spouse,” “wife,” “widow,” “divorce,” “child,”
“husband,” and “widower,” giving these terms meanings that inevitably will vary from state
definitions. 42 U.S.C. § 416.

3

federal protections.” Pl.’s Opp’n at 8.3 Plaintiff cites to nothing in the House’s memorandum
that even hints at such an argument. To the contrary, the House agrees that DOMA has the effect
of offering marital benefits to traditional marriages and to no other relationships, and that this
classification is subject to rational-basis review. See, e.g., House Mem. at 16-26 (“In judging an
equal protection claim, the deferential rational basis test applies where, as here, ‘a legislative
classification or distinction neither burdens a fundamental right nor targets a suspect class.’”
(quoting Vacco v. Quill, 521 U.S. 793, 799 (1997)) (emphasis added)).
Nor does the House contend that rational-basis review does not apply because defining
the term “marriage” as it appears in federal statutes is necessarily an exercise in line-drawing, as
Plaintiff suggests. See Pl.’s Opp’n at 11-13. Rather, the line-drawing nature of DOMA merely
informs the character of rational-basis review. The correct standard is stated by the Second
Circuit’s decision in Bacon v. Toia, quoted by Plaintiff: “[L]egislation . . . always involves
drawing lines among categories of people, lines that necessarily are sometimes arbitrary”; as a
result, equal protection simply requires that “the line-drawing process must itself rest on a
rational foundation.” 648 F.2d 801, 809 (2d Cir. 1981) (quotation marks and citation omitted),
aff’d sub nom., Blum v. Bacon, 457 U.S. 132 (1982).

3

Although Plaintiff acknowledges the House’s contention that it has pointed to
government interests that would justify DOMA not only under rational-basis review but under
whatever level of scrutiny applies, she maintains that the Court need not consider this contention
because it was raised in a footnote. Pl.’s Opp’n at 6 n.4 (citing House Mem. in Supp. of Mot. to
Dismiss (Aug. 1, 2011) (ECF No. 53) (“House Mem.”) at 26 n.6). Although the House firmly
believes that rational-basis review is the appropriate level of scrutiny here, even if some other
level of scrutiny applied, it would serve the interests of no one for the Court to make a farreaching decision of constitutional law on the default basis urged by Plaintiff. This is especially
true as most of the government interests at stake here, articulated at length in the House’s
briefing, are the same regardless of the applicable level of scrutiny.

4

B.

DOMA Is a Classic Line-Drawing Statute.

As the House noted in its opening memorandum, unless any two people who seek to be
deemed “married” are treated as such, some line-drawing is inevitable: The very process of
defining any term including “marriage” involves line-drawing. House Mem. at 27-28.
Plaintiff’s only real response to this point is to protest that “[a]ny comparison of DOMA to some
kind of administrative law regime is obviously inapplicable on its face.” Pl.’s Opp’n at 12
(referring to House’s citation of Fed. Commc’ns Comm’n v. Beach Commc’ns, 508 U.S. 307
(1993), in which the Supreme Court applied a line-drawing equal protection analysis to
legislation involving cable television systems). Plaintiff makes no note, however, of the fact that
the Supreme Court in fact has applied an identical rule in cases involving the allocation of
federal benefits to individuals, such as Mathews v. Diaz, 426 U.S. 67, 84 (1976) (declining to
“substitute our judgment for that of Congress” regarding eligibility rules for certain Medicare
benefits: “When this kind of policy choice must be made, we are especially reluctant to question
the exercise of congressional judgment.”), and Schweiker v. Wilson, 450 U.S. 221, 238 (1981)
(applying “strong presumption of constitutionality” as to congressional allocation of certain
social security benefits) (citation omitted), both quoted in the House’s memorandum. See House
Mem. at 27. No matter what entities or persons a statute regulates or benefits, it must define who
those entities or persons are, and thus very often will become an exercise in line-drawing.
Plaintiff further maintains that DOMA “[i]s neither a regulatory nor a government
benefits statute” because it is instead a “definitional statute.” Pl.’s Opp’n at 12. That is neither
true nor relevant. DOMA, inter alia, defines marriage for purposes of federal benefits.
Countless other statutes do the same, and it is in the nature of regulating who is eligible for
federal benefits that definitions must be used to draw lines. That line-drawing is subject to

5

rational-basis review and the effect on the public fisc alone generally provides the rational basis.
See, e.g., Hassan v. Wright, 45 F.3d 1063, 1069 (7th Cir. 1995) (“At bottom, protecting the fisc
provides a rational basis for Congress’ line drawing in this instance.”).
Finally, Plaintiff repeatedly argues that DOMA does not benefit any married couples but
functions solely to exclude same-sex couples. See, e.g., Pl.’s Opp’n at 2, 8, 10, 26, 27. But
every definitional statute necessarily has the dual tendencies to benefit (or regulate) those who
come within the definition, as well as to not benefit (or not regulate) those who are outside of it.
The same undoubtedly is true of DOMA: The Congress that enacted it surely intended to
provide benefits to persons included in its definition of “marriage,” just as it intended not to
provide them to those outside its scope.4 The exclusion may benefit those not excluded (for
example, by giving them a larger slice of a static pool of benefits), or it may rationally further
another government interest. Either way, Plaintiff cannot escape application of rational-basis
review.

4

DOMA, of course, was not enacted as part of a larger regulatory or benefits bill to
which DOMA’s definitions would apply. Instead, it was a clarification of the definition of the
word “marriage” in preexisting statutes. This may be the source of Plaintiff’s repeated
contention that DOMA operates solely to deny rights to same-sex couples. See, e.g., Pl.’s Opp’n
at 2, 8, 10, 26, 27. But Plaintiff offers no authority or logic in support of the proposition that
line-drawing deference is a one-time-only occurrence—that after an initial congressional attempt
at line-drawing, any later clarifications or amendments of that line no longer will be subject to
deferential rational-basis review. Moreover, DOMA’s global nature actually points to another
rational basis: Namely, that DOMA preserves the legislative judgments implicit in countless
earlier congressional enactments.

6

III.

DOMA EASILY SURVIVES RATIONAL-BASIS REVIEW.5
A.

Protecting the Societal Benefits of Marriage from the Unknown
Consequences of Its Redefinition Is an Eminently Rational Basis for
Legislation.

In response to the House’s observation (i) that marriage is one of our most fundamental
social institutions and that, in light of its importance, (ii) Congress was well justified in
demanding more evidence that any redefinition of marriage would not undermine the
institution’s vitality or impair the benefits derived from it, House Mem. at 29-30, Plaintiff
maintains that the House “does not offer any rationale as to why Congress would want to
proceed with caution, and does nothing more than describe what DOMA does.” Pl.’s Opp’n at
18. The rationale for proceeding with caution is plain: When dealing with an institution as
important as marriage and a definition as long-established as the traditional definition of
marriage, it is eminently rational to move slowly and allow states to experiment with new
definitions before those definitions are either transferred by force of law to other states, see
DOMA Section 2, 28 U.S.C. § 1738C, or adopted as the federal definition, see DOMA Section 3,
1 U.S.C. § 7.
5

The Department of Justice (“DOJ”) attempts to use marriage referenda as evidence of
homosexuals’ political powerlessness. DOJ Mem. of Law in Response to Pl.’s Mot. Summ. J.
and Intervenor’s Mot. Dismiss at 18-19 (Aug. 19, 2011) (ECF Nos. 71 & 72) (“DOJ Mem.”).
First, the Court should disregard DOJ’s submission because it is, in essence, an unauthorized
brief of amicus curiae. See Mem. and Order (June 2, 2011) (ECF No. 26) (“Intervention Order”)
(granting House motion to intervene as defendant where DOJ refused to defend constitutionality
of United States statute at issue). DOJ’s submission also is inconsistent with DOJ’s filing of a
motion to dismiss Plaintiff’s amended complaint, see Mot. to Dismiss (Aug. 1, 2011) (ECF No.
49), which motion in turn disregards the Court’s order granting the House’s motion to intervene,
see Intervention Order. More substantively, DOJ’s formulation is problematic because it begs
the very question at issue here, i.e., whether it is invidious discrimination to limit marriage to
opposite-sex couples. Furthermore, stating that in 1996 “only three states had statutes restricting
marriage to opposite-sex couples” does not have the import DOJ suggests. DOJ Mem. at 18.
Every state’s marriage law was enacted against the backdrop assumption that marriage was
between one man and one woman.

7

This is crucially different from the argument rejected in Gill v. Office of Personnel
Management, 699 F. Supp. 2d 374 (D. Mass. 2010), cited by Plaintiff. See Pl.’s Opp’n at 18. In
Gill, decided before the House became a party to DOMA challenges, DOJ had argued that
Congress could enact DOMA simply “to preserve the ‘status quo,’” id. at 390, but pointedly
refrained from suggesting that the status quo had benefits or that change could be negative. As a
result, the court noted that “[s]taying the course is not an end in and of itself.” Id. at 394. But
here, the House is making a distinct argument: DOMA does not stay the course merely for the
sake of staying the course—rather, it stays the course on marriage because of the benefits that
have resulted from the traditional definition, the foundational importance of marriage, and
concerns that potentially deleterious changes from the traditional definition should not be
undertaken without substantially more empirical study and deliberation.6
B.

Preserving a Fundamental Assumption on Which Previously-Enacted
Marriage Statutes Were Created Is a Rational Basis.

In enacting DOMA, Congress reasonably could have been concerned with preserving the
legislative judgments embodied in previously-enacted statutes using the words “marriage” and
“spouse,” all of which inevitably would have been enacted under the assumption that only
opposite-sex couples would qualify. In opposition to this, Plaintiff maintains only that, “[s]ince
there were no states that recognized legal marriage of same-sex couples in the United States
before 2004, the Congresses that passed earlier statutes were not thinking about whether to
exclude or include married same-sex couples from the specific protections of the law.” Pl.’s

6

This case is strikingly different from Watson v. City of Memphis, 373 U.S. 526 (1963),
in which the city conceded the occurrence of an ongoing equal protection violation but sought to
delay remedying that violation in order to prevent civil unrest. In stark contrast to Watson, the
equal protection question is precisely what is being litigated in this case, and the House
strenuously denies that any violation is taking place.

8

Opp’n at 9-10. Not only is this argument wrong on its own terms, it entirely misses the point.
Whether or not the enacting legislators affirmatively thought about how these statutes would
apply to same-sex couples, they certainly did contemplate that only opposite-sex couples would
qualify as “married” under them. This is plain from the text of many of the statutes themselves
as well as from judicial and agency interpretations thereof. See House Mem. at 3-4. It also is
plain from the mere fact that no state ever had permitted same-sex marriages, and until relatively
recently there was no discernible prospect that any of them ever would. In this light, virtually
every pre-DOMA statute using the term “marriage” would have been enacted by a Congress that,
in considering whether and on what terms to legislate, assumed that the rights and duties created
by the statute would apply only to traditional marriages. There can be no reasonable
disagreement that DOMA preserved previous legislative judgments in this way.
And, as the House observed in its opening brief, one of these federal concerns was
protecting the public fisc by imposing reasonable limits on the availability of federal benefits.
See House Mem. at 32-33. Plaintiff asserts that there is no evidence “that DOMA saves the
federal government money.” Pl.’s Opp’n at 19. The House, of course, need not provide any
such evidence; that is the fundamental nature of rational-basis review. See, e.g., Heller v. Doe,
509 U.S. 312, 320 (1993) (government “has no obligation to produce evidence to sustain the
rationality of a statutory classification”); Beach Commc’ns, 508 U.S. at 315 (“[A] legislative
choice is not subject to courtroom fact-finding and may be based on rational speculation
unsupported by evidence or empirical data.”). Moreover, in light of the fact that Plaintiff in this
very case claims that DOMA’s unconstitutionality means that the government owes her more
than $300,000, Plaintiff’s assertion rings hollow. As to Plaintiff’s citation to the 2004 CBO
analysis, the House already has explained that that report is at best a scantily-supported, ill-

9

explained estimate, and the exact fiscal impact of a repeal or invalidation of DOMA could not be
known for certain until it occurred. House Mem. at 32 n.8. It certainly was rational for members
of Congress at the time of the enactment of DOMA to determine (as they did) that the entire
corpus of federal statutes on balance benefits, rather than penalizes, marriage and thus that
DOMA preserves the public fisc. See, e.g., House Mem. at 28, 32-33.
C.

DOMA Is Rationally Related to the Legitimate Government Interest in a
Consistent Nationwide Federal Definition of Marriage.

Plaintiff does not disagree with the House that DOMA prevents a situation where
similarly situated same-sex couples will be granted or denied federal benefits based solely on the
state in which they live. Nor does she dispute that avoiding such disuniformity is a legitimate
government interest. Instead, Plaintiff finds this “simply impossible to credit” as a rationale in
support of DOMA “because both prior to and since the enactment of DOMA there has always
been significant inconsistency in federal marital benefits as a function of the federal
government’s deference to the states’ determinations of who can marry.” Pl.’s Opp’n at 20.
This argument is badly flawed. First, despite the stress Plaintiff places on the supposedly
major differences in modern state laws regarding marriage qualifications, she does not identify a
single actual difference. Gill, on which Plaintiff relies almost exclusively on this point, does
little better: The only currently existing difference in state marriage qualifications identified by
the Gill court was the fact that New Hampshire sets the age of consent lower than other states—
thirteen years for women and fourteen for men. 699 F. Supp. 2d at 394. The notion that
Congress could not rationally have regarded the issue of same-sex marriage as calling for
legislation to ensure uniformity while not thinking the same of marriages between minors should

10

not be taken seriously by this Court.7 See Heller, 509 U.S. at 321 (“[C]ourts are compelled
under rational-basis review to accept a legislature’s generalizations even when there is an
imperfect fit between means and ends. A classification does not fail rational-basis review
because it ‘is not made with mathematical nicety or because in practice it results in some
inequality.’” (quoting Dandridge v. Williams, 397 U.S. 471, 485 (1970))).
Plaintiff states in a conclusory fashion that “it simply defies logic to claim that it is more
‘consistent’ to treat Edie Windsor and Thea Spyer like unmarried same-sex couples from
Alabama or Wisconsin, than it would be to treat them like a married couple from New York,
where they actually lived.” Pl.’s Opp’n at 21. Plaintiff does not even attempt to explain why it
would be irrational—not just a slightly inferior approach, but downright irrational—for Congress
to prefer national uniformity in the substantive definition of federal marriage rather than a mere
choice-of-law provision incorporating the rules of fifty-plus different jurisdictions.
D.

DOMA Is Rationally Related to the Government Interest in Maintaining the
Link Between Marriage and Children.

In response to the House’s observation that DOMA furthers the government interest in
maintaining the link between marriage and children, Plaintiff offers a glaring non sequitur: She
notes that “[h]aving children is not and never has been a prerequisite for marriage,” and she
maintains that therefore there “is simply no connection” between recognizing same-sex marriage
and undermining the message that marriage draws much of its importance from its tendency

7

To be sure, greater differences between state-law marriage qualifications may have
existed in the past, as the Gill court noted. 699 F. Supp. 2d at 392. And Congress often has
failed to act in the interest of national uniformity in the face of those differences. But the fact
that Congress chose not to act then does not make it irrational for the Congress that enacted
DOMA to have exercised its judgment differently and to have decided that it was appropriate to
address the greatest threat of disuniformity in state marriage laws that was posed then (or that
exists now).

11

toward procreation. Pl.’s Opp’n at 23. This argument relies on the invalid assumption that it is
impossible for the government to foster the link between marriage and childbearing except by
prohibiting marriage to anyone who cannot or will not have children. Plaintiff gives no reason
why government cannot also reinforce the importance of children to marriage by recognizing
that marriage must be defined with reference to the likelihood that marital relationships will
involve children.
Census data reveal that, as of 2005, opposite-sex married couples were more than twice
as likely as same-sex couples to include children in their household—48.3% of opposite-sex
couples had children as opposed to 19.6% of same-sex couples. Adam P. Romero et al., Census
Snapshot at 3 (The Williams Institute, Dec. 2007). The data also demonstrate that, in 2005, less
than one-half of one percent of American children (an estimated .37% of American children)
were living in households headed by same-sex couples. Id. at 2 (stating total number of children
living in households headed by same-sex couples); Living Arrangements of Children Under 18
Years Old: 1960 to Present, Current Population Survey, March and Annual Social and Economic
Supplements, 2010 and Earlier (U.S. Census Bureau, U.S. Dep’t of Commerce, Nov. 2010),
www.census.gov/population/www/socdemo/hh-fam.html (stating total number of children living
in United States). Moreover, Plaintiff cannot change the simple and obvious fact that a marriage
between a man and a woman is biologically oriented toward children in a way that same-sex
relationships are not.
Plaintiff also (i) scoffs at the idea “that any straight man or woman anywhere in this
nation would decide not to get married” if the government redefined marriage to include samesex marriages, dismissing the notion as “def[ying] everything we know about human nature (not
to mention common sense),” Pl.’s Opp’n at 23, and (ii) similarly summarily dismisses any

12

connection between the redefinition of marriage and out-of-wedlock births as “completely
ridiculous,” id. at 25. Once again, Plaintiff substitutes derision for argument. She offers no
reason why a fundamental and entirely novel change in the definition of the institution of
marriage should not be expected to have an effect on how people regard that institution, or
whether they decide to enter it for themselves. There can be no reasonable dispute that people’s
views on marriage and childbearing outside marriage, and on their willingness to marry or to
have children outside marriage, have varied considerably throughout history. See Stephanie J.
Ventura, Changing Patterns of Nonmarital Childbearing in the United States, Ctrs. for Disease
Control & Prevention (May 2009), http://www.cdc.gov/nchs/data/databriefs/db18.htm (stating
that number of babies born to unmarried women in 2007 was “2.5 times the number reported in
1980 and 19 times the estimate for 1940”); Estimated Median Age at First Marriage by Sex:
1890 to Present, U.S. Census Bureau, http://www.census.gov/population/socdemo/hhfam/ms2.xls (showing that median age for first marriages in 2010 for men and women was 28.2
and 26.1 years, respectively, and, in 1980, 24.7 and 22.0 years, respectively). The causes of
these changes are no doubt complex, but it would be eminently reasonable for Congress to
conclude that changing the definition of what marriage is also would have an impact on these
attitudes, and to take that likely impact into account in enacting DOMA.8
Plaintiff observes that “DOMA does nothing to change the fact that same-sex couples can
and are likely to marry” under the laws of some states. Pl.’s Opp’n at 24. But again, this would
refute the conclusion that DOMA rationally preserves the link between marriage and
childbearing only if one makes the wholly implausible assumption that the federal-law definition

8

Thus, DOJ’s claim that DOMA “does nothing to affect the stability of heterosexual
marriages,” DOJ Mem. at 26, fails.

13

of marriage plays no role whatsoever in shaping societal understandings of the nature and
purpose of marriage.9 Plaintiff offers no argument in support of that assumption, and none
persuasively can be made.
E.

DOMA Advances the Government Interest in Fostering Marriages That
Provide Children with a Mother and Father.

Perhaps the clearest example of Plaintiff’s misunderstanding of the nature of the
constitutional review of line-drawing statutes is her contention that the Court must inquire
“whether encouraging heterosexual parenting is a legitimate interest rationally advanced by
denying federal recognition to same-sex couples.” Pl.’s Opp’n at 28. Plaintiff claims that the
authorities cited by the House “fail[] to articulate any rational link between the exclusion of
same-sex couples from marriage and encouraging heterosexual couples to do anything at all” and
that “[i]t is simply irrational to believe that excluding same-sex couples from federal protections
will result in any children being raised by heterosexual parents.” Id.
Plaintiff thus seems to believe that in order to have a rational basis for extending benefits
to one group of people and not another, Congress must be able to demonstrate not just that
benefiting the first group will further its purposes somewhat more effectively than benefiting the
second, but also that excluding the second group from benefits will in itself benefit the first
group. This is not an argument in favor of extending marriage rights to same-sex couples;
instead it is an argument against having a governmentally-sanctioned institution of marriage at
9

Plaintiff claims that the House “concedes [that DOMA] does not deter anyone from
marrying,” citing the House’s explanation of why DOMA does not impact the fundamental right
to marry because it does not penalize individuals for contracting marriages under state law. Pl.’s
Opp’n at 27 (citing House Mem. at 20). This is a misreading of the House’s position. While
DOMA certainly does not threaten anyone with punishment or any detrimental change in the
benefits to which they are entitled should they enter a state-law same-sex marriage, and thus does
not “deter” such marriages in that sense, the House does not concede that it has no impact on
whether a couple will choose to marry.

14

all. If the test for whether Congress must recognize someone as married is whether not
recognizing the marriage affirmatively would benefit other marriages—and if, as Plaintiff
maintains, preserving the integrity of the definition of marriage itself is not a cognizable
benefit—then it is difficult to see how Congress could offer marital benefits to anyone without
offering them to everyone, since there are vanishingly few people or relationships to whom the
denial of benefits would be an intrinsic benefit to other marriages. Under Plaintiff’s version of
rational-basis review, platonic friendships would be entitled to “marital” benefits if the parties
desired them, because excluding them from recognition would not in and of itself benefit other
marriages.
This is thus a classic situation where judicial deference to Congress’ line-drawing
judgment must be exercised. The question is not, as Plaintiff would have it, whether excluding
same-sex couples (or anyone else) from the definition of marriage by itself encourages parenting
in families including mothers and fathers. Instead, the question is whether a desire to encourage
parenting in mother-father families rationally could have led Congress to define “marriage” so as
to extend benefits to opposite-sex couples and not same-sex couples. The answer to this question
is certainly “yes.”
Plaintiff also maintains that she should be entitled to put on evidence to demonstrate that
same-sex couples are just as good of parents as opposite-sex ones and therefore that encouraging
families that can provide both a mother and a father to their children is not a legitimate
government interest. Pl.’s Opp’n at 29-30. This would not be appropriate, given the applicable
standard of review. Heightened scrutiny is the avenue for such empirical second-guessing of
Congress’ judgments. When it comes to rational-basis review, Congress’ rational judgment that
favoring the child-rearing arrangement that has long been the dominant one, and not changing it

15

in favor of a newly-recognized alternative, is not to be second-guessed in the courts. See, e.g.,
Heller, 509 U.S. at 320; Beach Commc’ns, 508 U.S. at 315.
Indeed, even if Plaintiff could put on an empirical showing, the necessarily recent vintage
of her empirical data would be reason enough for Congress to reject it under rational-basis
review. Due to the comparatively recent emergence of same-sex couples raising children,
whatever evidence Plaintiff might submit inevitably would be substantially limited in terms of
the timeframe in which same-sex couples’ parenting was studied as well as the sample size (and
representative nature) of the same-sex couples involved. See House Summ. J. Opp’n (Aug. 1,
2011) (ECF No. 50) at 23-24. It is in this regard that Congress’ rationality in demanding a larger
body of evidence before considering changing the definition of marriage is most clearly
illustrated. See House Mem. at 28-31.
F.

Because DOMA Rationally Serves All the Above Legitimate Government
Interests, Romer v. Evans and Related Cases Are Not Applicable Here.

Plaintiff cites Supreme Court precedent for the propositions “‘that a bare . . . desire to
harm a politically unpopular group cannot constitute a legitimate governmental interest’” and
that a law that “‘seems inexplicable by anything but animus toward the class it affects . . . lacks a
rational relationship to legitimate state interests.’” Pl.’s Opp’n at 31 (quoting U.S. Dep’t of
Agric. v. Moreno, 413 U.S. 528, 534 (1973), and Romer, 517 U.S. at 633). As DOMA rationally
furthers all the legitimate government interests identified in the House’s briefing, it cannot be
said to be motivated by a bare desire to harm same-sex couples, and it easily can be explained
without reference to animus against them. Plaintiff has mined DOMA’s legislative history to
find remarks by some supporters of DOMA that she regards as expressing “animus” towards
homosexual persons. Pl.’s Opp’n at 30-31. The Court need only review the House’s briefing in
this case, or DOMA’s legislative history in its entirety, to see that numerous non-animus based

16

rationales also were articulated in support of the bill. On Plaintiff’s account of things, such
prominent figures as Vice President Biden, House Speaker John Boehner, Representative James
Clyburn, Representative Steny Hoyer, Senator Tom Daschle, Senator Olympia Snowe, and
Senator Paul Wellstone all were willing to support a bill motivated by nothing more than animus
toward a disfavored minority group. See 142 Cong. Rec. 17094 (1996) (House vote); 142 Cong.
Rec. 22467 (1996) (Senate vote). This is implausible, and a finding to the contrary would not
amount to proper treatment by the judiciary of a co-equal branch of government. Of course, it
may be possible that some of these figures have changed their views. That is ample reason why
this dispute should be settled in the legislative process, rather than by judicially-branding such
prominent figures as irrational and/or bigoted.10
CONCLUSION
Every branch of our government, not to mention the people of the United States, will be
better off if the debate over the definition of marriage is settled by the parties’ efforts to persuade
each other in the halls of Congress and the various statehouses of our nation, rather than by one
side branding both its opponents and the proponents of DOMA as irrational (not to mention
contemptible), as Plaintiff seeks to do here. Accordingly, for the reasons stated herein and in the
House’s memorandum in support of its motion to dismiss, the Court should dismiss Plaintiff’s
amended complaint with prejudice.

10

Indeed, even DOJ is unwilling to state that DOMA’s passage was solely the result of
animus-based reasons. DOJ Mem. at 27 (stating that “DOMA Section 3 was motivated in
substantial part by animus”).

17

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 Representatives11
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]
September 9, 2011

11

The Bipartisan Legal Advisory Group currently is comprised of the Honorable John A.
Boehner, Speaker of the House; the Honorable Eric Cantor, Majority Leader; the Honorable
Kevin McCarthy, Majority Whip; the Honorable Nancy Pelosi, Democratic Leader; and the
Honorable Steny H. Hoyer, Democratic Whip. The Democratic Leader and the Democratic
Whip decline to support the filing of the House’s motion to dismiss in this matter.

CERTIFICATE OF SERVICE
I certify that on September 9, 2011, I served one copy of the Reply Memorandum of Law
of Intervenor-Defendant the Bipartisan Legal Advisory Group of the United States House of
Representatives in Support of Its Motion to Dismiss 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