Windsor v. The United States Of America
Filing
99
Letter addressed to Judge Barbara S. Jones from Roberta A. Kaplan dated 5/29/2012 re: We write on behalf of plaintiff Edie Windsor to bring to the Court's attention a decision issued last week by Judge Claudia Wilken of the Northern District of California holding that Section 3 of the Defense of Marriage Act ("DOMA") is unconstitutional in a case that presents substantially similar facts and raises similar legal issues as the above-captioned matter currently pending before Your Honor. Document filed by Edith Schlain Windsor.(ama)
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May 29,2012
MAFIK ,
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JORDAN E. YARETT
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T. ROBERT ZOCHOWSKI, JR.
'"NOT AOMITTED TO THE NEW YORK BAR
VIA FACSIMILE AND HAND DELIVERY
The Honorable Barbara S. Jones
United States District Court
Southern District ofNew York
500 Pearl Street
New York, NY 10007
Windsor v. United States,
Dear Judge Jones:
We write on behalf ofplaintiffEdie Windsor to bring to the Court's
attention a decision issued last week by Judge Claudia Wilken of the Northern District of
-alifornia holding that Section 3 ofthe Defense of Marriage Act ("DOMA") is
unconstitutional in a case that presents substantially similar facts and raises similar legal
issues as the above-captioned matter currently pending before Your Honor. See
Dragovich v. Dep 't ofTreasury, No. C 10-1564 (CW) (N.D. CaL May 24, 2012).
In particular, after recounting the legislative history behind the denial of
federal legal recognition for same-sex couples, id. at 6-10, the Dragovich court held that
"animus toward, and moral rejection of, homosexuality and san-ie-sex relationships are
apparent in the Congressional record." Id. at 21. The court also dismissed each ofBLAG's
proffered rationales for Section 3 of DOMA as failing to satisfy rational basis scrutiny.
The court first held that "the preservation of marriage as an institution that
excludes gay men and lesbians for the sake of tradition is not a legitimate governmental
PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP
The Honorable Barbara S. Jones
2
interest" because "( u ]nder equal protection jurisprudence, tradition is not a legally
acceptable reason to prohibit a practice that historically has been the subject of social
disapprobation." Id. at 22. Noting that DOMA "established an across-the-board federal
definition of marriage limiting it to heterosexual couples, and preempt[ed] any
opportunity to test the impact of state laws evolving to recognize same-sex marriage," the
Dragovich court further held that Section 3 of DOMA was not "a cautious legislative
step." ld. at 24. In addition, the court held that "[t]he desire to save money is not
sufficient to justify§ 3 of the DOMA" because "even crediting cost-savings as a
conceivable policy goal, groups selected to bear the burden of legislative enactments to
save money must be rationally, not arbitrarily, chosen." Id. at 26-27 (citations omitted).
The court also rejected a purported interest in "uniformity in eligibility for federal
benefits," holding that"[a]n enactment that precludes federal recognition of certain
marriages because they involve same-sex couples cannot be justified as promoting
uniformity where federal law otherwise accepts wide variation in state marriage law." !d.
at 27-28. Finally, the court considered the purported rationale of encouraging
"responsible procreation," and held that the relationship between DOMA and this
supposed interest lacked a rational basis. !d. at 28-31.
The court also rejected BLAG's reliance on Baker v. Nelson, 409 U.S. 810
(1972), holding that "Baker does not foreclose Plaintiffs' equal protection claim."
Dragovich, No. C 10-1564, at 15.
As a result of the enclosed opinion, as of today' s date and since 2010 (the
year in which the Complaint in the above-captioned matter was filed), four federal district
or bankruptcy courts have agreed that Section 3 of DOMA is unconstitutional for the very
reasons asserted by Ms. Windsor. See id.; Golinski v. Office of Pers. Mgmt., 824 F.
Supp. 2d 968 (N.D. Cal. 2012); Gil/v. Office ofFers. Mgmt., 699 F. Supp. 2d 374 (D.
Mass. 2010); In re Balas, 449 B.R. 567 (Bankr. C.D. Cal. 2011).
For the reasons stated in our letter to the Court dated March 29, 2012, in
which we and the Department of Justice respectfully requested an expeditious decision on
the pending dispositive motions, we respectfully renew our request that the Court decide
this matter as soon as practicable.
Respectfully submitted,
~~/Nr~
Roberta A. Kaplan
Enclosure
cc (via email): Paul D. Clement, Esq.
H. Christopher Bartolomucci, Esq.
James D. Esseks, Esq.
Jean Lin, Esq.
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