Windsor v. The United States Of America

Filing 92

RESPONSE re: 91 Notice (Other), Notice (Other). Document filed by Edith Schlain Windsor. (Kaplan, Roberta)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
EDITH SCHLAIN WINDSOR, in her
capacity as Executor of the estate of THEA
CLARA SPYER,

10 Civ. 8435 (BSJ) (JCF)
ECF Case

Plaintiff,
v.
THE UNITED STATES OF AMERICA,

PLAINTIFF’S RESPONSE TO
INTERVENOR-DEFENDANT’S
NOTICE OF RECENT DECISIONS

Defendant.

Plaintiff Edith Schlain Windsor hereby responds to the Notice of Recent
Decisions filed by Intervenor-Defendant the Bipartisan Legal Advisory Group of the
United States House of Representatives (“BLAG”), dated October 20, 2011. Neither of the
two cases cited by BLAG has any bearing on the issues at bar.
First, Log Cabin Republicans v. United States is entirely irrelevant. Log
Cabin held that a challenge to “Don’t Ask, Don’t Tell” was moot given the law’s repeal.
See Log Cabin Republicans v. United States, Nos. 10-56634, 10-56813, 2011 WL
4494225, at **2–5 (9th Cir. Sept. 29, 2011) (per curiam). As DOMA remains in effect,
there is no issue of mootness here. BLAG also cites dicta from the concurrence. This outof-circuit dicta, from a concurring opinion in a case dealing with entirely unrelated issues,
relies on the same out-of-circuit and outdated pre-Lawrence caselaw that BLAG has
already briefed at length, see id. at *8, and which Plaintiff has already addressed. (See
Mem. in Opp’n to Pl.’s Mot. for Summ. J. at 5–7; Reply Mem. of Law in Supp. of Pl.’s
Mot. for Summ. J. at 9–13.)

Second, in Lui v. Holder the district court, without independent analysis of
the Equal Protection claim before it, held that it was constrained to dismiss the complaint
under Ninth Circuit precedent. Lui v. Holder, No. 2:11-cv-01267 (SVW), at 3–5 (C.D.
Cal. Sept. 28, 2011). Again, Lui was decided on the basis of old Ninth Circuit precedent,
which relied on the same cases as the concurrence in Log Cabin. Id. Additionally, the Lui
court expressly distinguished cases, like Plaintiff’s here, that are founded on “the basis of
denial of certain federal marriage-based benefits.” See id. at 5 n.7 (comparing case to Gill
v. OPM, 699 F. Supp. 2d 374 (D. Mass. 2010)).
For these reasons, this Court should give no weight to BLAG’s notice or the
cases appended thereto.

2

Dated: New York, New York
October 21, 2011
Respectfully Submitted,
PAUL, WEISS, RIFKIND, WHARTON &
GARRISON LLP
/s/ Roberta A. Kaplan
Roberta A. Kaplan, Esq.
Andrew J. Ehrlich, Esq.
1285 Avenue of the Americas
New York, New York 10019-6064
[phone]
[e-mail]
[e-mail]
– and –
James D. Esseks, Esq.
Rose A. Saxe, Esq.
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION
125 Broad Street
New York, New York 10004-2400
[phone]
[e-mail]
[e-mail]
– and –
Melissa Goodman, Esq.
Alexis Karteron, Esq.
Arthur Eisenberg, Esq.
NEW YORK CIVIL LIBERTIES UNION
FOUNDATION
125 Broad Street, 19th Floor
New York, New York 10004
[phone]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Plaintiff Edith Schlain Windsor

3