Windsor v. The United States Of America

Filing 98

Letter addressed to Judge Barbara S. Jones from Roberta A. Kaplan dated 5/31/2012 re: We write on behalf of plaintiff Edie Windsor to bring to the Court's attention the decision issued earlier today by the Unites States Court of Appeals for the First Circuit holding that Section 3 of the Defense of Marriage Act ("DOMA") is unconstitutional in a case that presents substantially similar facts and raises overlapping legal issues as the above-captioned matter Document filed by Edith Schlain Windsor.(ama)

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May 31, 2012

'*NOT A0114~TTED TO TH£ NEW YORK BAR

VIA FACSIMILE AND HAND DELIVERY
The Honorable Barbara S. Jones
United States District Court
Southern District of New York
500 Pearl Street
New York, NY 10007
Windsor v. United States, 10 Civ. 8435 (BSJ) (JCF)

Dear Judge Jones:
We write on behalf of plaintiff Edie Windsor to bring to the Court's
attention the decision issued earlier today by the Unites States Court of Appeals for the
First Circuit holding that Section 3 of the Defense of Marriage Act ("DOMA") is
unconstitutional in a case that presents substantially similar facts and raises overlapping
legal issues as the above-captioned matter. See Massachusetts v. Dep 't of Health and
Human Servs., Gill v. Office of Pers..Mgmt., Nos. 10-2204, 10-2207, 10-2214 (1st Cir.
May 31, 2012).
In particular, in a unanimous opinion by Judge Boudin, the First Circuit
held that the burdens imposed by Section 3 of DOMA "are comparable to those the
[Supreme] Court found substantial in [Dep 't ofAg. v.] Moreno[, 413 U.S. 528 (1973)] ,
City ofCleburne [v. Cleburne Living Ctr., 473 U.S. 432 (1985)], and Romer [v. Evans,
517 U.S. 620 (1996)]." /d. at 19. The First Circuit proceeded to reject each ofthe
purported justifications for Section 3 of DOMA, holding "that the rationales offered do
not provide adequate support for section 3 of DO MA." /d. at 28.

PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP

2

The Honorable Barbara S. Jones
As a result of the enclosed opinion, as oftoday's date and since 2010 (the
year in which the Complaint in the above-captioned matter was filed), every federal
circuit, district, or bankruptcy court to have analyzed the constitutionality of DOMA has
agreed that Section 3 of DOMA is unconstitutional for the very reasons asserted by Ms.
Windsor. See id.; Dragovich v. Dep't ofTreasury, No. C 10-1564 (CW), 2012 WL
1909603 (N.D. Cal. May 24, 2012); Golinski v. Office ofFers. Mgmt., 824 F. Supp. 2d
968 (N.D. Cal. 2012); Gill v. Office ofFers. Mgmt., 699 F. Supp. 2d 374 (D. Mass.
2010); In re Balas, 449 B.R. 567 (Bankr. C.D. Cal. 2011).

As Your Honor is aware, and as addressed in the parties' respective crossmotions, the above decisions were issued in Circuits where precedent mandated that
DOMA be evaluated under rational basis review. (See Reply Mem. of Law in Supp. of
Pl.'s Mot. for Summ. J. at 9-13.) As Your Honor is also aware, no such precedent binds
this Court, and as a result both the Department of Justice and Ms. Windsor have
respectfully requested a decision from this Court finding that Section 3 of DOMA is
subject to heightened judicial scrutiny. (See id at 13-24; Def. United States' Mem. of
Law in Resp. to Pl.'s Mot. for Summ. J. and Intervenor's Mot. to Dismiss; Mem. of Law
in Supp. ofPl.'s Mot. for Summ. J. at 10-31.)
For the reasons stated in our letters to the Court dated March 29, 2012 and
May 29,2012, in which we and the Department of Justice respectfully requested an
expeditious decision on the pending dispositive motions, which have been pending since
September 15,2011, with the utmost respect, we renew our request that the Court decide
this matter as soon as practicable in light of the pressing nature of the issues of national
concern before the Court.

§J![~
Roberta N Kaplan

Enclosure
cc (via email): Paul D. Clement, Esq.
H. Christopher Bartolomucci, Esq.
James D. Esseks, Esq.
Jean Lin, Esq.