Windsor v. The United States Of America

Filing 91

NOTICE of Recent Decisions re: 50 Memorandum of Law in Opposition to Motion, 53 Memorandum of Law in Support of Motion. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Kircher, Kerry)

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

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

INTERVENOR-DEFENDANT’S
NOTICE OF RECENT DECISIONS
Intervenor-Defendant the Bipartisan Legal Advisory Group of the U.S. House of
Representatives (the “House”) respectfully submits this notice of two recent decisions, each
relevant to both its motion to dismiss and its opposition to Plaintiff’s motion for summary
judgment.
First, on September 29, 2011 (after the close of briefing on the House’s motion to
dismiss in this matter and after the House’s final submission in opposition to Plaintiff’s motion
for summary judgment), the United States Court of Appeals for the Ninth Circuit issued the
decision attached at Exhibit A. See Log Cabin Republicans v. United States, --- F.3d ----, Nos.
10-56634 & 10-56813, 2011 WL 4494225 (9th Cir. Sept. 29, 2011) (per curiam); see also id. at
*5-10 (O’Scannlain, J., concurring). The Log Cabin Republicans decision and the concurring
opinion thereto are relevant to the House’s arguments, including regarding the propriety of
leaving political issues to the elected branches of government and the ability of homosexuals to

achieve gains through those branches. See, e.g., Mem. of Law . . . in Supp. of . . . Mot. to
Dismiss at 1-2, 43-45 (Aug. 1, 2011) (ECF No. 53); Mem. of Law in . . . Opp’n to Pl.’s Mot. for
Summ. J. at 1, 12-21 (Aug. 1, 2011) (ECF No. 50).
Second, on September 28, 2011 (also after the close of briefing on the House’s motion to
dismiss in this matter and after the House’s final submission in opposition to Plaintiff’s motion
for summary judgment), the United States District Court for the Central District of California
issued the decision attached at Exhibit B, which dismisses a complaint that, like the instant one,
challenged on equal protection grounds the constitutionality of Section 3 of the Defense of
Marriage Act, 1 U.S.C. § 7. See In Chambers Order, Lui v. Holder, et al., No. 2:11-cv-01267SVW (JCGx) (C.D. Cal. Sept. 28, 2011). The Lui decision is relevant to the House’s arguments
regarding the applicable standard of equal protection scrutiny. See, e.g., Mem. of Law in . . .
Opp’n to Pl.’s Mot. for Summ. J. at 5-7 (Aug. 1, 2011) (ECF No. 50); Mem. of Law . . . in Supp.
of . . . Mot. to Dismiss at 22-26 (Aug. 1, 2011) (ECF No. 53).

2

Respectfully submitted,
/s/ Paul D. Clement
Paul D. Clement
H. Christopher Bartolomucci
Conor B. Dugan
Nicholas J. Nelson
BANCROFT PLLC
1919 M Street, Northwest, Suite 470
Washington, District of Columbia 20036
Telephone:
[phone]
Facsimile:
[phone]
Counsel for the Bipartisan Legal Advisory
Group of the U.S. House of Representatives
OF COUNSEL:
Kerry W. Kircher, General Counsel
Christine Davenport, Senior Assistant Counsel
Katherine E. McCarron, Assistant Counsel
William Pittard, Assistant Counsel
Kirsten W. Konar, Assistant Counsel
OFFICE OF GENERAL COUNSEL
U.S. House of Representatives
219 Cannon House Office Building
Washington, District of Columbia 20515
Telephone:
[phone]
Facsimile:
[phone]
October 20, 2011

CERTIFICATE OF SERVICE
I certify that on October 20, 2011, I served one copy of Intervenor-Defendant’s Notice of
Recent Decisions 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 B. Karteron, Esquire, & Arthur N. Eisenberg, Esquire
NEW YORK CIVIL LIBERTIES UNION FOUNDATION
125 Broad Street, Nineteenth 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