UNITED STATES Census Snapshot: 2010 Same-sex couples per 1,000 Same-sex couples

UNITED STATES Census Snapshot: 2010 Same-sex couples 646,464 Same-sex couples per 1,000 households 5.5 2.3 Husband/wife 131,729 Same-sex “husband/wife” couples per 1,000 “husband/wife” couples Unmarried partner 514,735 Same-sex “unmarried partner” couples 70.0 per 1,000 “unmarried partner” couples Same-sex couples per 1,000 households by county (adjusted) All Same-sex Couples Same-sex female couples per 1,000 households by county (adjusted) Female Male 332,887 51% 313,577 49% Same-sex couples who identify as spouses Female Male 67,506 51% 64,223 49% Same-sex male couples per 1,000 households by county (adjusted) Same-sex couples who identify as unmarried partners Female Male 265,381 52% 249,354 48% Percent of same-sex couples raising children by county (adjusted) All Same-sex Couples Raising "own" children 111,033 17% Not raising "own" children 535,431 83% Same-sex couples who identify as spouses Raising "own" children 41,194 31% Not raising "own" children 90,535 69% Same-sex couples who identify as unmarried partners Raising "own" children 69,839 14% Not raising "own" children 444,896 86% Percent of same-sex couples who identify as spouses by state Data and methodology Data are compiled using the US Census Bureau’s state-level preferred estimates for same-sex couples found here. Same-sex couples are identified in households where Person 1 describes his or her relationship with another adult of the same sex as either a “husband/wife” or “unmarried partner”. The Census Bureau preferred estimates adjust original Census tabulations reported in the Census 2010 SF-1, PCT15 to account for the likelihood that a small portion of different-sex married couples miscode the sex of a spouse and are incorrectly counted as a same-sex couple. Adjusted data The Census Bureau only released preferred estimates for states. County and city data used in this report are adjusted by the authors and do not represent official Census Bureau tabulations. Like the Census Bureau preferred estimates, the adjustment procedure accounts for the likelihood that a small portion of different-sex married couples miscode the sex of a spouse and are incorrectly counted as a same-sex couple. Note that the adjusted figures do not take into account the possibility that some samesex couples may not be counted in Census tabulations due to concerns about confidentiality or because neither partner was Person 1 in the household. Go here for a complete description of the adjustment procedure. States ranked by same-sex couples per 1,000 households Rank 1 District of Columbia Same-sex couples 4,822 Same-sex couples per 1000 households 18.08 Rank 26 Alaska Same-sex couples 1,228 Same-sex couples per 1000 households 4.76 2 Vermont 2,143 8.36 27 Louisiana 8,076 4.67 3 Massachusetts 20,256 7.95 28 Virginia 14,243 4.66 4 California 98,153 7.80 29 Utah 3,909 4.45 5 Oregon 11,773 7.75 30 Pennsylvania 22,336 4.45 6 Delaware 2,646 7.73 31 Missouri 10,557 4.44 7 New Mexico 5,825 7.36 32 Indiana 11,074 4.43 8 Washington 19,003 7.25 33 Tennessee 10,898 4.37 9 Hawaii 3,239 7.11 34 Ohio 19,684 4.28 10 Maine 3,958 7.10 35 Oklahoma 6,134 4.20 11 Nevada 7,140 7.10 36 Kentucky 7,195 4.18 12 Rhode Island 2,785 6.73 37 Wisconsin 9,179 4.03 13 New York 48,932 6.69 38 South Carolina 7,214 4.01 14 Arizona 15,817 6.64 39 Michigan 14,598 3.77 15 Florida 48,496 6.54 40 West Virginia 2,848 3.73 16 Colorado 12,424 6.30 41 Arkansas 4,226 3.68 17 New Hampshire 3,260 6.28 42 Kansas 4,009 3.60 18 Georgia 21,318 5.95 43 Idaho 2,042 3.52 19 Maryland 12,538 5.81 44 Alabama 6,582 3.49 20 Connecticut 7,852 5.73 45 Iowa 4,093 3.35 21 New Jersey 16,875 5.25 46 Montana 1,348 3.29 22 Texas 46,401 5.20 47 Nebraska 2,356 3.27 23 Minnesota 10,207 4.89 48 Mississippi 3,484 3.12 24 North Carolina 18,309 4.89 49 Wyoming 657 2.90 25 Illinois 23,049 4.77 50 South Dakota 714 2.22 51 North Dakota 559 1.99 States ranked by percent same-sex couples identifying as husbands or wives Rank 1 Massachusetts % Same-sex couples identifying as husband or wife 44% Same-sex husband/ wife couples 8,863 Same-sex unmarried partner couples 11,393 Rank 26 Maryland % Samesex couples identifying as husband or wife 19% Same-sex husband/ wife couples 2,321 Same-sex unmarried partner couples 10,217 2 Vermont 35% 755 1,388 27 Kentucky 18% 1,328 5,867 3 Connecticut 34% 2,704 5,148 28 Texas 18% 8,397 38,004 4 Iowa 34% 1,373 2,720 29 Tennessee 18% 1,959 8,939 5 New Hampshire 31% 1,016 2,244 30 18% 580 2,659 6 Mississippi 30% 1,050 2,434 31 18% 3,224 15,085 7 California 29% 28,312 69,841 32 Hawaii North Carolina Nevada 18% 1,252 5,888 8 Wyoming 27% 179 478 33 Virginia 17% 2,474 11,769 9 New Jersey 26% 4,447 12,428 34 Georgia 17% 3,661 17,657 10 North Dakota 26% 146 413 35 Oregon 17% 2,002 9,771 11 Alabama 26% 1,704 4,878 36 Washington 16% 3,072 15,931 12 Arkansas 25% 1,040 3,186 37 Illinois 16% 3,607 19,442 13 South Dakota 25% 175 539 38 DC 15% 745 4,077 14 West Virginia 24% 680 2,168 39 Michigan 15% 2,202 12,396 15 Alaska 23% 278 950 40 Missouri 15% 1,592 8,965 16 South Carolina 22% 1,596 5,618 41 New Mexico 15% 858 4,967 17 Idaho 22% 446 1,596 42 Indiana 14% 1,603 9,471 18 Oklahoma 22% 1,335 4,799 43 Pennsylvania 14% 3,228 19,108 19 Nebraska 22% 510 1,846 44 Delaware 14% 380 2,266 20 Louisiana 21% 1,731 6,345 45 Arizona 14% 2,265 13,552 21 Rhode Island 21% 592 2,193 46 Florida 14% 6,784 41,712 22 Montana 21% 286 1,062 47 Ohio 14% 2,661 17,023 23 Kansas 21% 833 3,176 48 Minnesota 13% 1,330 8,877 24 Utah 21% 809 3,100 49 Colorado 13% 1,618 10,806 25 New York 21% 10,125 38,807 50 Wisconsin 13% 1,194 7,985 51 Maine 10% 407 3,551 Cities ranked by same-sex couples per 1,000 households Large cities Population above 250,000 Same-sex couples per Same-sex 1000 couples households (adjusted) (adjusted) San Francisco, CA 10,461 30.25 Mid-size cities Population between 100,000 and 250,000 Same-sex couples per Same-sex 1000 couples households (adjusted) (adjusted) Fort Lauderdale, FL 2,324 31.08 Provincetown, MA 2 Seattle, WA 6,537 23.06 Berkeley, CA 3 Oakland, CA 3,359 21.84 Salt Lake City, UT 4 Minneapolis, MN 3,555 21.74 Cambridge, MA 5 Atlanta, GA 3,656 19.75 6 Portland, OR 4,784 7 Long Beach, CA 3,128 8 Washington, DC 9 Rank 1 Small cities Population below 100,000 949 20.61 Wilton Manors, FL 1,145 15.36 Palm Springs, CA 633 14.39 Orlando, FL 1,414 19.25 St. Petersburg, FL 19.13 Madison, WI 4,822 18.08 Denver, CO 4,117 10 Boston, MA 11 St. Louis, MO 12 Same-sex couples (adjusted) 237 Same-sex couples per 1000 households (adjusted) 148.08 781 125.33 2,440 107.28 Rehoboth Beach, DE 76 99.97 13.80 Guerneville, CA 185 80.36 1,500 13.78 West Hollywood, CA 1,397 62.05 1,358 13.24 Pleasant Ridge, MI 61 54.77 Alexandria, VA 776 11.39 Rancho Mirage, CA 462 52.29 15.65 Pasadena,CA 627 11.35 New Hope, PA 63 49.99 3,715 14.70 Jersey City, NJ 1,080 11.15 Oakland Park, FL 865 49.41 1,998 14.06 Arlington,VA 1,087 11.08 Cathedral City, CA 790 46.33 Sacramento, CA 2,271 13.00 Providence, RI 693 11.05 Miami Shores, FL 155 42.87 13 Dallas, TX 5,610 12.25 Richmond, VA 908 10.42 Avondale Estates, GA 58 42.78 14 San Diego, CA 5,910 12.23 Vallejo, CA 420 10.34 Northwest Harbor, NY 56 42.74 15 Austin, TX 3,820 11.76 Lansing, MI 501 10.34 Northampton, MA 484 40.31 16 Columbus, OH 3,786 11.42 Rochester, NY 894 10.28 Ocean Grove, NJ 78 40.16 17 Baltimore, MD 2,689 10.76 Santa Rosa, CA 650 10.22 Eldorado at Santa Fe, NM 115 40.00 18 New Orleans, LA 1,518 10.68 Durham, NC 951 10.17 Lambertville, NJ 77 39.28 19 St. Paul, MN 1,179 10.62 Richmond, CA 367 10.16 Asbury Park, NJ 255 37.91 20 Phoenix, AZ 5,450 10.59 Ann Arbor, MI 476 10.12 Signal Hill, CA 157 37.85 21 Chicago, IL 10,849 10.38 Eugene, OR 663 9.98 Decatur, GA 294 34.15 22 Tampa, FL 1,410 10.37 Enterprise, NV 387 9.72 Vashon, WA 152 33.03 23 Kansas City, MO 1,955 10.16 Concord, CA 426 9.62 Brisbane, CA 59 32.39 24 Los Angeles, CA 13,292 10.08 Hollywood, FL 558 9.55 North Druid Hills, GA 311 31.99 25 Albuquerque, NM 2,260 10.07 Paradise, NV 857 9.52 Ferndale, MI 303 31.72 About the authors Gary J. Gates, PhD is the Williams Distinguished Scholar at the Williams Institute, UCLA School of Law. Abigail M. Cooke is a PhD candidate in the Department of Geography at UCLA and is affiliated with the California Center for Population Research. For more information The Williams Institute, UCLA School of Law, (310) 267-4382 www.law.ucla.edu/williamsinstitute Case 1:10-cv-08435-BSJ -JCF Document 29 Filed 06/24/11 Page 1 of 51 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK EDITH SCHLAIN WINDSOR, in her capacity as Executor of the estate of THEA CLARA SPYER, Plaintiff, 10 Civ. 8435 (BSJ) (JCF) ECF Case v. THE UNITED STATES OF AMERICA, Defendant. MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP Roberta A. Kaplan, Esq. Andrew J. Ehrlich, Esq. 1285 Avenue of the Americas New York, NY 10019-6064 (212) 373-3000 rkaplan@paulweiss.com aehrlich@paulweiss.com AMERICAN CIVIL LIBERTIES UNION FOUNDATION James D. Esseks, Esq. Rose A. Saxe, Esq. 125 Broad Street New York, NY 10004 (212) 549-2500 jesseks@aclu.org rsaxe@aclu.org NEW YORK CIVIL LIBERTIES UNION FOUNDATION Melissa Goodman, Esq. Alexis Karteron, Esq. Arthur Eisenberg, Esq. 125 Broad Street, 19th Floor New York, NY 10004 (212) 607-3300 mgoodman@nyclu.org akarteron@nyclu.org aeisenberg@nyclu.org Attorneys for Plaintiff Edith Schlain Windsor Case 1:10-cv-08435-BSJ -JCF Document 29 Filed 06/24/11 Page 2 of 51 TABLE OF CONTENTS Page TABLE OF AUTHORITIES ......................................................................................... iii PRELIMINARY STATEMENT..................................................................................... 1 FACTUAL AND PROCEDURAL BACKGROUND ..................................................... 3 ARGUMENT ................................................................................................................. 9 I. THE APPLICABLE STANDARD...................................................................... 9 II. DOMA IS SUBJECT TO AND CANNOT SURVIVE STRICT OR INTERMEDIATE SCRUTINY..........................................................................10 A. B. Sexual Orientation Discrimination Requires Strict or Intermediate Scrutiny..................................................................................................11 1. Lesbians and Gay Men Have Suffered a History of Discrimination ............................................................................13 2. Sexual Orientation Has No Bearing on Ability to Participate in or Contribute to Society.........................................16 3. Sexual Orientation Is a Core Part of Individual Identity and Is Immutable ...............................................................................17 4. Lesbians and Gay Men Lack Political Power...............................20 DOMA Is neither Narrowly Tailored to Serve Any Compelling Government Interest nor Substantially Related to an Important Government Interest ...............................................................................23 1. DOMA Does Not Satisfy Either the Strict or Intermediate Scrutiny Standard........................................................................23 2. All of Congress’s Justifications for DOMA Fail..........................24 a) Preserving “Traditional” Marriage Is Not a Compelling or Important Government Interest.................25 b) DOMA Does Not Promote Heterosexuality .....................26 c) DOMA Does Not Promote Responsible Procreation or Child-Rearing..............................................................26 d) DOMA Undermines Democratic Self-Governance ..........28 Case 1:10-cv-08435-BSJ -JCF Document 29 III. IV. Filed 06/24/11 Page 3 of 51 e) DOMA Does Not Conserve Resources ............................29 f) “Moral Disapproval” Is Not a Compelling or Important Government Interest........................................30 EVEN UNDER RATIONAL BASIS REVIEW, DOMA IS UNCONSTITUTIONAL....................................................................................31 A. The Applicable Standard ........................................................................32 B. Congress’s 1996 Justifications for DOMA Fail Rational Basis Review ...................................................................................................33 C. No Other Rational Basis for DOMA Can Be Asserted ............................37 BAKER v. NELSON IS NEITHER CONTROLLING NOR PERSUASIVE AUTHORITY ....................................................................................................40 CONCLUSION .............................................................................................................43 ii Case 1:10-cv-08435-BSJ -JCF Document 29 Filed 06/24/11 Page 4 of 51 TABLE OF AUTHORITIES CASES Page(s) Able v. United States, 968 F. Supp. 850 (E.D.N.Y. 1997) .....................................................................12, 19 Able v. United States, 155 F.3d 628 (2d Cir. 1998) ........................................................................ 12, 13, 19 Adarand Constructors, Inc. v. Peña, 515 U.S. 200 (1995)..................................................................................... 10, 20, 23 Ake v. Wilson, 354 F. Supp. 2d 1298 (M.D. Fla. 2005)....................................................................33 Alexander v. Cahill, 598 F.3d 79 (2d Cir. 2010).......................................................................................41 Alma Society, Inc. v. Mellon, 601 F.2d 1225 (2d Cir. 1979) ...................................................................................23 Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971) .................................................................................41 Baker v. Nelson, 409 U.S. 810 (1972)...........................................................................................40, 41 In re Balas, No. 2:11-BK-17831 (TD), 2011 WL 2312169 (Bankr. C.D. Cal. June 13, 2011) .......3, 33 Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001).................................................................................................32 Beard v. Banks, 548 U.S. 521 (2006).................................................................................................. 9 Bowen v. Gilliard, 483 U.S. 587 (1987)...........................................................................................12, 20 Bush v. Vera, 517 U.S. 952 (1996).................................................................................................41 Christian Legal Society Chapter of the University of California, Hastings College of the Law v. Martinez, 130 S. Ct. 2971 (2010).......................................................................................11, 18 City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985)..........................................................................................passim iii Case 1:10-cv-08435-BSJ -JCF Document 29 Filed 06/24/11 Page 5 of 51 Clark v. Jeter, 486 U.S. 456 (1988).................................................................................................23 Dean v. District of Columbia, 653 A.2d 307 (D.C. 1995)........................................................................................14 Dragovich v. United States Department of the Treasury, No. 10-01564 (CW), 2011 WL 175502 (N.D. Cal. Jan. 18, 2011) ................ 30, 33, 35 Estate of Goldwater v. Commissioner of Internal Revenue, 539 F.2d 878 (2d Cir. 1976)...................................................................................... 7 In re Estate of Ranftle, 81 A.D.3d 566 (1st Dep’t 2011)................................................................................ 6 Frontiero v. Richardson, 411 U.S. 677 (1973)............................................................................... 12, 15, 16, 21 Gill v. Office of Personnel Management, 699 F. Supp. 2d 374 (D. Mass. 2010) ................................................................passim In re Golinski, 587 F.3d 901 (9th Cir. 2009)...............................................................................................3 Goodridge v. Department of Public Health, 798 N.E.2d 941 (Mass. 2003)...................................................................................25 Graham v. Richardson, 403 U.S. 365 (1971)...........................................................................................18, 30 Green Party of Connecticut v. Garfield, 616 F.3d 213 (2d Cir. 2010).....................................................................................41 Hernandez-Montiel v. Immigration and Naturalization Service 225 F.3d 1084 (9th Cir. 2000)..................................................................................19 High Tech Gays v. Defense Industrial Security Clearance Office, 909 F.2d 375 (9th Cir. 1990)....................................................................................21 Illinois Board of Elections v. Socialist Workers Party, 440 U.S. 173 (1979).................................................................................................41 Johnson v. Robison, 415 U.S. 361 (1974).................................................................................................12 In re Kandu, 315 B.R. 123 (W.D. Wa. 2004)..........................................................................33, 42 iv Case 1:10-cv-08435-BSJ -JCF Document 29 Filed 06/24/11 Page 6 of 51 Kerrigan v. Commissioner of Public Health, 957 A.2d 407 (Conn. 2008)...............................................................................passim Kimel v. Florida Board of Regents, 528 U.S. 62 (2000)...................................................................................................17 Lamprecht v. Federal Communications Commission, 958 F.2d 382 (D.C. Cir. 1992) .................................................................................14 Lawrence v. Texas, 539 U.S. 558 (2003) .........................................................................................passim In re Levenson, 587 F.3d 925 (9th Cir. 2009)......................................................................................passim Lofton v. Secretary of the Department of Children and Family Services, 358 F.3d 804 (11th Cir. 2004)..................................................................................13 Log Cabin Republicans v. United States, 716 F. Supp. 2d 884 (C.D. Cal. 2010) ......................................................................22 Loper v. New York City Police Department, 999 F.2d 699 (2d Cir. 1993)...................................................................................... 9 Lyng v. Castillo, 477 U.S. 635 (1986).................................................................................................12 Mandel v. Bradley, 432 U.S. 173 (1977)................................................................................................ 41 In re Marriage Cases, 183 P.3d 384 (Cal. 2008) ............................................................................. 12, 14, 19 In the Matter of the Marriage of J.B. and H.B., 326 S.W.3d 654 (Tex. App. 2010) ...........................................................................41 Martinez v. County of Monroe, 850 N.Y.S.2d 740 (4th Dep’t 2008) .......................................................................... 7 Massachusetts Board of Retirement v. Murgia, 427 U.S. 307 (1976).................................................................................... 12, 13, 18 Matthews v. Lucas, 427 U.S. 495 (1976) ................................................................................................12 Morse v. Republican Party of Virginia, 517 U.S. 186 (1996).................................................................................................41 v Case 1:10-cv-08435-BSJ -JCF Document 29 Filed 06/24/11 Page 7 of 51 Myers v. County of Orange, 157 F.3d 66 (2d Cir. 1998).......................................................................................32 Neill v. Gibson, 278 F.3d 1044 (10th Cir. 2001) ................................................................................13 Parham v. Hughes, 441 U.S. 347 (1979).................................................................................................17 Pedersen v. Office of Personnel Management, No. 3:10-cv-1750 (VLB) (D. Conn.) ......................................................................... 9 Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010) .......................................................... 11, 13, 14 Plyler v. Doe, 457 U.S. 202 (1982)..........................................................................................passim Rinaldi v. Yeager, 384 U.S. 305 (1966).................................................................................................32 Romer v. Evans, 517 U.S. 620 (1996)..........................................................................................passim Rowland v. Mad River Local School District, 470 U.S. 1009 (1985)...............................................................................................13 San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973) ........................................................................................ 12, 18, 21 Shapiro v. Thompson, 394 U.S. 618 (1969).................................................................................................30 Sharif v. New York State Education Department, 709 F. Supp. 345 (S.D.N.Y. 1989) ...........................................................................32 Shaw v. Hunt, 517 U.S. 899 (1996).................................................................................................23 Smelt v. County of Orange, 374 F. Supp. 2d 861 (C.D. Cal. 2005) ................................................................33, 42 Tester v. City of New York, No. 95 Civ. 7972 (LMM), 1997 WL 81662 (S.D.N.Y. Feb. 25, 1997)......................13 United States Department of Agriculture v. Moreno, 413 U.S. 528 (1973).................................................................................................31 vi Case 1:10-cv-08435-BSJ -JCF Document 29 Filed 06/24/11 Page 8 of 51 United States v. Brennan, No. 08-5171-cv (L), 2011 WL 1679850 (2d Cir. May 5, 2011) ................................23 United States v. Carolene Products Company, 304 U.S. 144 (1938)...........................................................................................11, 21 United States v. Virginia, 518 U.S. 515 (1996)..........................................................................................passim Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009)....................................................................... 14, 19, 25 Watkins v. United States Army, 875 F.2d 699 (9th Cir. 1989)..............................................................................13, 19 Williams v. Illinois, 399 U.S. 235 (1970).................................................................................................25 Witt v. United States Department of the Air Force, 739 F. Supp. 2d 1308 (W.D. Wash. 2010)................................................................22 STATUTES Defense of Marriage Act (“DOMA”), Section 3, 1 U.S.C. § 7 (2006) .....................passim 26 U.S.C. § 2010(c) (Supp. 2010)................................................................................... 7 26 U.S.C. § 2056(a) (2006)............................................................................................. 7 OTHER AUTHORITIES Cong. Budget Off., U.S. Cong., The Potential Budgetary Impact of Recognizing Same-Sex Marriages 1 (June 21, 2004) .............................................................29, 35 Defense of Marriage Act: Hearing on H.R. 3396 Before the Subcomm. on the Const. of the H. Comm. on the Judiciary, 104th Cong. 1 (1996)...............................27 Fed. R. Civ. P. 56(a) ....................................................................................................... 9 Fifth Amendment to the United States Constitution ...............................................1, 8, 29 H.R. Rep. No. 104-664 (1996).................................................................................24, 30 H.R. Rep. No. 97-201 (1981).......................................................................................... 7 Rev. Rul. 58-66, 1958-1 C.B. 60..................................................................................... 7 S. Rep. No. 97-144 (1981) .............................................................................................. 7 vii Case 1:10-cv-08435-BSJ -JCF Document 29 Filed 06/24/11 Page 9 of 51 Plaintiff Edith Schlain Windsor respectfully submits this memorandum of law in support of her motion for summary judgment. PRELIMINARY STATEMENT Edith Schlain Windsor, or Edie, is the sole executor of the estate of her late spouse, Thea Clara Spyer. Prior to Thea’s death in February 2009, Edie and Thea spent over four decades together in a loving, committed union. At the beginning of their relationship, in 1965, neither Thea nor Edie imagined that they would have the opportunity to legally marry. But Edie and Thea had the courage and self-respect to get engaged and, after an engagement that lasted more than forty years, Edie and Thea were finally wed in May 2007. Sadly, Edie and Thea were able to spend less than two years as a married couple before Thea passed away at the age of 77. Then, while grieving the loss of the love of her life, Edie also had to face the injustice of the federal government’s refusal to recognize her marriage. Under Section 3 of the Defense of Marriage Act, or DOMA, which requires the federal government to disregard marriages that are valid under state law if they are not between one man and one woman, the federal government treated Edie and Thea as if they were legal strangers. Because of DOMA, the federal government imposed more than $363,000 in federal estate tax on Thea’s estate, significantly reducing Edie’s inheritance. Yet, if “Thea” were instead “Theo,” her estate would have passed to Edie tax-free. For Edie and Thea, the “tax” for being gay exceeded $363,000. This disparate treatment violates Edie’s right to the equal protection of the laws that is guaranteed by the Fifth Amendment to the United States Constitution. 1 Case 1:10-cv-08435-BSJ -JCF Document 29 Filed 06/24/11 Page 10 of 51 Indeed, because of the patent nature of this constitutional violation, the President of the United States and his Department of Justice have declined to defend this lawsuit. DOMA is a sweeping statute that rewrites over one thousand federal laws and overturns the federal government’s long-standing practice of deferring to state determinations of marital status. Throughout the history of this country, the federal government has never married people, leaving that to the states. The federal government nevertheless has attached 1,138 different protections or responsibilities to marriage, and has always deferred to the states’ determinations of whether a couple is validly married, despite significant variation in marriage laws from state to state. That practice changed in 1996, when, following a decision from the Hawaii Supreme Court which Congress feared would lead to same sex-couples actually having the opportunity to marry, the federal government explicitly differentiated among valid state marriages, and preemptively refused recognition of the otherwise valid marriages of gay and lesbian couples for all federal purposes. Since DOMA’s passage fifteen years ago, five states and the District of Columbia now allow same-sex couples to marry, and several other states, including New York, recognize marriages of same-sex couples performed elsewhere. Yet, the federal government continues to denigrate these state-approved marriages through DOMA’s exclusion of these marriages from all federal protections and obligations. At its core, this case presents a straightforward question of constitutional law: Should the government be permitted to levy a substantial estate tax upon Edie Windsor simply because, as a lesbian, she was married to a woman, instead of a man? That it has taken until the second decade of the twenty-first century for the Attorney 2 Case 1:10-cv-08435-BSJ -JCF Document 29 Filed 06/24/11 Page 11 of 51 General of the United States and several other federal courts1 to see the obvious impermissibility of such blatant discrimination under the United State Constitution speaks, we respectfully contend, more to the lingering legacy of stereotypes and prejudice than it does to the difficulty of the constitutional principles at issue. As Justice Kennedy so presciently observed in the landmark case of Lawrence v. Texas: “[T]hose who drew and ratified the [Constitution] . . . knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.” 539 U.S. 558, 578 (2003). FACTUAL AND PROCEDURAL BACKGROUND Before the modern gay rights movement began, at a time when lesbians and gay men faced dangerous prejudice if they disclosed their sexual orientation, Edie Windsor and Thea Spyer met, fell in love, and began a committed relationship that would last until Thea’s death, forty-four years later. Edie and Thea’s Engagement & Marriage Edie and Thea first met in 1963 at a restaurant in Greenwich Village which was one of the few places in New York City accepting of lesbian and gay clientele. Affidavit of Edith Schlain Windsor (“Windsor Aff.”) ¶ 5. Edie, who was working long hours at her job at IBM as one of the first software programmers, called an old friend and asked her to take her “where the lesbians go.” Id. The night they met, Edie and Thea 1 See Letter of Att’y Gen. Holder to Speaker Boehner of the U.S. House of Rep. (Feb. 23, 2011) [hereinafter Holder Letter]; Gill v. Office of Pers. Mgmt., 699 F. Supp. 2d 374 (D. Mass. 2010); In re Levenson, 587 F.3d 925 (9th Cir. 2009) (Reinhardt, J.); In re Golinski, 587 F.3d 901 (9th Cir. 2009) (Kozinski, J.); In re Balas, No. 2:11-BK-17831 (TD), 2011 WL 2312169 (Bankr. C.D. Cal. June 13, 2011). 3 Case 1:10-cv-08435-BSJ -JCF Document 29 Filed 06/24/11 Page 12 of 51 spent the whole time dancing together; by the end of the evening, Edie had danced a hole through the bottom of her stockings. Id. After a few chance encounters over the next two years, Edie begged friends for a place to stay on the East End of Long Island for Memorial Day weekend to ensure that she would see Thea, who was renting a place there for the summer. Id. ¶¶ 6– 7. When they met again that weekend and Thea asked Edie what she wanted from her, Edie’s response was simple: “Not much. I’d like to date for a year. And if that goes the way it is now, I think I’d like to be engaged, say for a year. And if it still feels this goofy joyous, I’d like us to spend the rest of our lives together.” Id. ¶ 9. And so began a committed relationship that lasted for the next forty-four years. Thea and Edie’s life together was full of joy and passion. Id. ¶ 14. They traveled in the United States and abroad, and entertained frequently. Id. Thea, a clinical psychologist and an accomplished cook, would prepare elaborate meals for their friends on holidays and at other times, including annual celebrations of their anniversary every Memorial Day weekend. Id. They grew closer together as a couple, and they independently thrived professionally and personally. Id. And, of course, they continued to dance. Id. ¶¶ 16, 19. In 1967, there was no legal recognition for same-sex couples in the United States and little hope for immediate change. Id. ¶ 10. Even so, after having been together for two years, Thea asked Edie to marry her. Id. Of course, they knew that they could not legally marry. Id. They also faced tremendous pressure—as did all lesbians and gay men at that time—to conceal their relationship from their co-workers, society, and their family and friends, for fear of insult and discrimination. Id. ¶ 11. For example, 4 Case 1:10-cv-08435-BSJ -JCF Document 29 Filed 06/24/11 Page 13 of 51 instead of an engagement ring, Thea gave Edie a circular diamond pin to signify their commitment to one another, because a ring would have been hard to explain to others. Id. ¶ 10. Six months later, they moved together into a Greenwich Village apartment. Id. ¶ 12. In 1968, they bought a small summer cottage on Long Island, which was where they spent many of their happiest moments, and where Edie cared for Thea in her final years. Id. ¶¶ 13, 16. In 1993, when New York City began registering domestic partnerships, Edie and Thea were one of the first couples to register—they were the eightieth couple to receive such recognition. Id. ¶¶ 21–22. Although Thea had appointments with patients scheduled all day long, Edie had little patience, prompting, “I have waited more than twenty-eight years for this day, and I am not waiting a single day more!” Id. ¶ 22. That was all it took. Thea cleared her schedule and bought flowers. Id. While they were elated to have some recognition after such a long time together, the limited protections and obligations of a New York City domestic partnership were no substitute for marriage. Id. ¶ 23. Over the years, health problems began to plague Thea and, indirectly, Edie. Id. ¶¶ 15–20. In 1977, twelve years after their relationship began, Thea was diagnosed with Progressive Multiple Sclerosis, or MS, a chronic disease of the central nervous system that causes gradually worsening and irreversible neurological damage and paralysis. Id. ¶ 15. But Edie and Thea refused to give up on the life they had built together. Id. ¶ 16. Thea reinvented herself with each year of her increasing physical disability, working to maintain a life that was full and active. Id. Edie committed herself to ensuring that their lives remained full of joy and passionate commitment. Id. Edie 5 Case 1:10-cv-08435-BSJ -JCF Document 29 Filed 06/24/11 Page 14 of 51 nursed, encouraged, and supported Thea as her disability caused ever-increasing paralysis—first requiring a cane, then crutches, then a manual wheelchair, then a motorized wheelchair that Thea could operate with her remaining usable hand. Id. ¶ 17. In 2002, Thea suffered a heart attack and was diagnosed with another serious medical condition, aortic stenosis, the narrowing of the aortic valve of the heart. Id. ¶ 24. Because of the near complete paralysis that had resulted from her MS, Thea was not willing to undergo the lengthy hospitalization that would have resulted from surgery to fix the valve. Id. The doctors told Edie and Thea that Thea did not have long to live. Id. In 2007, as Thea’s condition worsened, it was clear that Thea would not live long enough for them to have the opportunity to marry in New York. Id. ¶ 25. Thus, with a physician and other friends, Thea, then 75, and Edie, then 77, traveled to Toronto, Canada, and were married on May 22, 2007. Id. ¶ 26. They spent two difficult, but loving years together as a married couple before Thea died on February 5, 2009. Id. ¶ 28. After Thea’s passing, Edie was hospitalized with stress cardiomyopathy, an ailment commonly known as “broken heart syndrome,” which has caused serious, irreversible damages to her heart. Id. ¶¶ 29. Thea’s Estate and the Burdens of DOMA After Thea died, her Last Will and Testament, dated September 7, 2004, was admitted to probate by the Surrogate’s Court of New York County (Index No. 20091162), and Edie was appointed as executor of Thea’s estate on April 24, 2009. Id. ¶ 30. Thea’s estate passed for Edie’s benefit. Id. ¶¶ 31–32. Under New York’s marriage recognition rule, Edie and Thea’s legal Canadian marriage is recognized as valid in New York. See In re Estate of Ranftle, 81 6 Case 1:10-cv-08435-BSJ -JCF Document 29 Filed 06/24/11 Page 15 of 51 A.D.3d 566 (1st Dep’t 2011) (recognizing validity under New York law, for purposes of probating will, of Canadian marriage of same-sex couple); Martinez v. Cnty. of Monroe, 850 N.Y.S.2d 740 (4th Dep’t 2008). Solely because of the operation of DOMA, however, the federal government does not recognize their marriage, as New York State does. Consequently, because Thea’s taxable estate and adjusted taxable gifts exceeded the applicable exclusion amount set forth in 26 U.S.C. § 2010(c) (Supp. 2010), a federal estate tax was imposed on Thea’s estate that would not otherwise have been imposed if Edie and Thea’s marriage were recognized under federal law. More specifically, under 26 U.S.C. § 2056(a), property that passes from a decedent to a surviving spouse generally passes free of any federal estate tax. Congress enacted this unlimited marital deduction three decades ago to eliminate what the House Ways and Means Committee called the “widow’s tax,” which fell “most heavily on widows” who were “subject to estate taxes even though the property remains within the marital unit.” H.R. Rep. No. 97-201, at 159 (1981). In justifying the unlimited deduction, the Committee explained that “an individual should be free to pass his entire estate to a surviving spouse without the imposition of any additional tax.” Id.; see also S. Rep. No. 97-144, at 127 (1981). Ordinarily, whether a couple is married for purposes of applying the estate tax marital deduction depends on whether the couple is considered validly married under the law of the state of decedent’s domicile at the time of death. See, e.g., Estate of Goldwater v. Comm’r, 539 F.2d 878 (2d Cir. 1976) (relying on New York law to determine status of “surviving spouse” for purposes of estate tax marital deduction), cert. denied sub nom., Lipkowitz v. Comm’r, 429 U.S. 1023 (1976); cf. Rev. Rul. 58-66, 1958- 7 Case 1:10-cv-08435-BSJ -JCF Document 29 Filed 06/24/11 Page 16 of 51 1 C.B. 60, 60 (“The marital status of individuals as determined under state law is recognized in the administration of the Federal income tax laws.”). Although the estate tax marital deduction applies on its face to all lawfully married couples, married samesex couples alone are denied its protections because, pursuant to DOMA, the federal government refuses to recognize their marriages. More specifically, Section 3 of DOMA provides, in relevant part, that “[i]n determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.” 1 U.S.C. § 7. As a direct result of the federal government’s unconstitutional exclusion of same-sex surviving spouses from the protections of the estate tax marital deduction, $363,053.00 in federal estate tax was imposed on Thea’s estate, which Edie paid in her capacity as executor of Thea’s estate. The Instant Lawsuit On November 9, 2010, Edie filed this lawsuit, seeking a refund of the federal estate tax levied on and paid by Thea’s estate and a declaration that Section 3 of DOMA violates the equal protection guarantee secured by the Fifth Amendment to the United States Constitution. On February 23, 2011, after having carefully considered the constitutionality of Section 3 of DOMA, the President and the Attorney General announced that they had determined that heightened scrutiny is the appropriate standard of review for government classifications based on sexual orientation and that, under that 8 Case 1:10-cv-08435-BSJ -JCF Document 29 Filed 06/24/11 Page 17 of 51 standard, Section 3 of DOMA is unconstitutional. As the Attorney General explained in his letter to Congress: [T]he legislative record underlying DOMA’s passage contains discussion and debate that undermines any defense under heightened scrutiny. The record contains numerous expressions reflecting moral disapproval of gays and lesbians and their intimate and family relationships— precisely the kind of stereotype-based thinking and animus the Equal Protection Clause is designed to guard against. Holder Letter, at 4. Accordingly, the Executive Branch decided to stop defending DOMA in this case, as well as in a companion case filed in the District of Connecticut, Pedersen v. Off. Pers. Mgmt., No. 3:10-cv-1750 (D. Conn.). Following that announcement, on April 18, 2011, the Bipartisan Legal Advisory Group of the U.S. House of Representatives, or BLAG, moved to intervene for the limited purpose of defending the constitutionality of Section 3 of DOMA. On May 11, 2011, the Court established a discovery and briefing schedule. BLAG’s motion to intervene was granted on June 2, 2011. ARGUMENT I. THE APPLICABLE STANDARD Summary judgment is appropriate where the pleadings, the discovery materials, and any affidavits show “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Beard v. Banks, 548 U.S. 521, 529, 534 (2006) (granting summary judgment in constitutional challenge); Loper v. New York City Police Dep’t, 999 F.2d 699 (2d Cir. 1993) (affirming summary judgment entered by district court declaring state statute unconstitutional). 9 Case 1:10-cv-08435-BSJ -JCF Document 29 Filed 06/24/11 Page 18 of 51 Since it is undisputed that Edie has been injured by virtue of having to pay a $363,000 estate tax, the only issue in this case is whether her injury violates the Constitution’s equal protection guarantee. To overcome summary judgment under strict scrutiny, BLAG must persuade this Court that there is a genuine issue of material fact as to whether Section 3 of DOMA is narrowly tailored to further a compelling government interest. See Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 227 (1995). Alternatively, under the more lenient rational basis test, BLAG must, at the very least, demonstrate that there is a dispute of fact as to whether Section 3 rationally advances a legitimate government purpose. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985). Because, as demonstrated below, BLAG cannot come close to satisfying either of these standards to justify the overt discrimination that occurred here, the Court should grant summary judgment for Plaintiff. II. DOMA IS SUBJECT TO AND CANNOT SURVIVE STRICT OR INTERMEDIATE SCRUTINY __ DOMA classifies legally married couples into two distinct groups— married straight couples, and married gay couples—and subjects the latter to disparate treatment by, among other things, denying them over 1,000 federal protections and obligations. Never before, or since, has the federal government categorically disregarded state determinations of who is validly married and substituted its own definition. Accordingly, to defend DOMA, BLAG must justify DOMA’s discriminatory treatment of 10 Case 1:10-cv-08435-BSJ -JCF Document 29 Filed 06/24/11 Page 19 of 51 married same-sex couples, which is a departure from the government’s long-standing practice of deferring to state definitions of marriage.2 As the Supreme Court clearly has recognized, treating lesbians and gay men differently than straight people is sexual orientation discrimination. Christian Legal Soc’y Chapter of the Univ. of Cal., Hastings Coll. of the Law v. Martinez (“CLS”), 130 S. Ct. 2971, 2990 (2010). Because DOMA is discriminatory federal legislation directed at an historically and politically marginalized class of people based on an immutable characteristic irrelevant to their ability to contribute to society, the Constitution requires DOMA be subjected to strict, or at the very least, intermediate scrutiny. As the President and Attorney General have already concluded, DOMA cannot survive such searching review. (Nor can DOMA survive even rational basis review, as Part III, infra, demonstrates.) A. Sexual Orientation Discrimination Requires Strict or Intermediate Scrutiny Most legislative classifications come with a presumption of constitutionality, and the courts generally “will not presume that any given legislative action . . . is rooted in considerations that the Constitution will not tolerate.” City of Cleburne, 473 U.S. at 446. Certain kinds of classifications, however, carry a particularly high risk of improper use in the legislative process, and are therefore treated as “suspect” or “quasi-suspect.” Cf. United States v. Carolene Prods. Co., 304 U.S. 144, 153 n.4 (1938). 2 The issue here is thus different from Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010), and other cases seeking the freedom to marry for same-sex couples. The only question at issue in this case is what possible justification the government might have for singling out and disregarding one group of valid marriages for all federal purposes. 11 Case 1:10-cv-08435-BSJ -JCF Document 29 Filed 06/24/11 Page 20 of 51 In a long line of cases, the Supreme Court has developed a test for determining whether a legislative classification should be treated with this kind of suspicion and subjected to heightened scrutiny.3 Under this test, the essential criteria are that: “(1) the group has suffered a history of invidious discrimination; and (2) the characteristics that distinguish the group’s members bear no relation to their ability to perform or contribute to society.” Kerrigan v. Comm’r of Pub. Health, 957 A.2d 407, 426 (Conn. 2008) (explaining U.S. Supreme Court’s jurisprudence) (internal citations and quotation marks omitted); see also, e.g., Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 313 (1976) (per curiam); United States v. Virginia, 518 U.S. 515, 532–33 (1996). In assessing whether a group is subject to strict or intermediate scrutiny, courts sometimes also consider whether the characteristic that defines the group is immutable or “so integral an aspect of one’s identity [that] it is not appropriate to require a person to repudiate or change [it] . . . in order to avoid discriminatory treatment,” In re Marriage Cases, 183 P.3d 384, 442 (Cal. 2008); see also Able v. United States, 968 F. Supp. 850, 863–64 (E.D.N.Y. 1997), rev’d on other grounds, 155 F.3d 628, 632 (2d Cir. 1998), and whether the group is a minority or comparatively politically powerless, Bowen v. Gilliard, 483 U.S. 587, 602–03 (1987); City of Cleburne, 473 U.S. at 442–46. 3 See, e.g., San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28 (1973) (wealth); Frontiero v. Richardson, 411 U.S. 677, 684–88 (1973) (plurality opinion) (sex); Johnson v. Robison, 415 U.S. 361, 375 n.14 (1974) (conscientious objectors); Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 313 (1976) (per curium) (age); Matthews v. Lucas, 427 U.S. 495, 505–06 (illegitimacy) (1976); City of Cleburne, 473 U.S. at 440–41 (mental disability); Lyng v. Castillo, 477 U.S. 635, 638 (1986) (close relatives). 12 Case 1:10-cv-08435-BSJ -JCF Document 29 No single factor is dispositive. Filed 06/24/11 Page 21 of 51 Murgia, 427 U.S. at 321 (internal quotation marks omitted). Instead, the existence of any one of these factors can serve as a warning sign that a particular classification “provides no sensible ground for differential treatment,” City of Cleburne, 473 U.S. at 440, or is “more likely than others to reflect deep-seated prejudice rather than legislative rationality in pursuit of some legitimate objective,” Plyler v. Doe, 457 U.S. 202, 216 n.14 (1982). Neither the Supreme Court nor the Second Circuit has yet articulated the level of scrutiny that should apply to laws like DOMA that discriminate based on sexual orientation.4 However, it is plain that “gays and lesbians are the type of minority strict scrutiny was designed to protect.” Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 997 (N.D. Cal. 2010) (citing Murgia, 427 U.S. at 313). At the very least, intermediate scrutiny should apply to such laws. See Virginia, 518 U.S. at 573–74; Kerrigan, 957 A.2d at 426 (listing factors for quasi-suspect status). 1. Lesbians and Gay Men Have Suffered a History of Discrimination The long history of purposeful discrimination that lesbians and gay men have suffered at the hands of both governmental and private actors is both painfully clear and undisputed in this case. To our knowledge, no court has ever found to the contrary. See Rowland v. Mad River Local Sch. Dist., 470 U.S. 1009, 1014–15 (1985) (Brennan & 4 See Able v. United States, 155 F.3d 628, 632 (2d Cir. 1998); Tester v. City of New York, No. 95 Civ. 7972 (LMM), 1997 WL 81662, at *5 (S.D.N.Y. Feb. 25, 1997); Holder Letter at 1. Although several courts of appeal have declined to find that sexual orientation classifications are suspect or quasi-suspect, many of these decisions rest on previous circuit precedent or on pre-Lawrence cases. See, e.g., Lofton v. Sec’y of Dep’t of Children & Family Servs., 358 F.3d 804, 818 n.16 (11th Cir. 2004) (citing ten cases, all decided before Lawrence, that denied heightened scrutiny to laws that classify based on sexual orientation). 13 Case 1:10-cv-08435-BSJ -JCF Document 29 Filed 06/24/11 Page 22 of 51 Marshall, JJ., dissenting from denial of writ of certiorari).5 This extensive history of discrimination suggests that any legislative burdens placed on lesbians and gay men “are more likely than others to reflect deep-seated prejudice rather than legislative rationality in pursuit of some legitimate objective.” Plyler, 457 U.S. at 216 n.14. As set forth in the expert affidavit of Professor George Chauncey, in early colonial America, being identified as an individual who had same-sex sexual relations could endanger one’s life: the strong influence of Puritanism led to the execution of several men for the crime of sodomy. Expert Affidavit of George Chauncey, Ph.D. (“Chauncey Aff.”) ¶ 19.6 Well into the twentieth century, the medical community condemned homosexuality as a “mental defect” or “disease.” Id. ¶¶ 26–27. This ostensibly scientific view (now rejected) helped legitimize much anti-gay bias. Id. The early twentieth century also saw the passage of state and local laws directed at preventing lesbians and gay men from gathering together. Id. ¶¶ 29, 36–38. 5 See also Neill v. Gibson, 278 F.3d 1044, 1065–67 (10th Cir. 2001) (Lucero, J., dissenting); Watkins v. U.S. Army, 875 F2d 699, 724 (9th Cir. 1989) (Norris, J., concurring); Perry, 704 F. Supp. 2d at 996; Varnum v. Brien, 763 N.W.2d 862, 889– 90 (Iowa 2009); In re Marriage Cases, 183 P.3d at 442; Kerrigan, 957 A.2d at 434; Dean v. Dist. of Columbia, 653 A.2d 307, 344–45 (D.C. 1995) (Ferren, J., dissenting in part); Expert Affidavit of George Chauncey, Ph.D. ¶¶ 10–55, 65–86, 90–103; Holder Letter at 2. 6 It is appropriate for the Court to consider the parties’ expert affidavits and the factual record in this case because district courts are empowered to make findings of fact as to constitutional questions. Lamprecht v. FCC, 958 F.2d 382, 392 (D.C. Cir. 1992) (Thomas, J.) (“We know of no support . . . for the proposition that if the constitutionality of a statute depends in part on the existence of certain facts, a court may not review a legislature’s judgment that the facts exist. If a legislature could make a statute constitutional simply by ‘finding’ that black is white or freedom, slavery, judicial review would be an elaborate farce. At least since Marbury v. Madison . . . that has not been the law.”). 14 Case 1:10-cv-08435-BSJ -JCF Document 29 Filed 06/24/11 Page 23 of 51 In the domain of federal service, despite the pressing need for soldiers, the military systematically attempted to screen out lesbians and gay men from the armed forces during World War II, and to discharge and deny benefits to those soldiers who were “discovered” later. See id. ¶¶ 39–41. Such discrimination was not limited to the military. All federal agencies were prohibited from hiring lesbians and gay men after the war (a ban that lasted until 1975), and the federal government engaged in far-reaching surveillance and investigation to identify and purge supposed “homosexuals” from the federal civil service. See id. ¶¶ 42–50. With such blatant official discrimination, it is no surprise that lesbians and gay men were demonized by the media through the 1950s and 1960s. See id. ¶¶ 51–55. The slightest advancement for civil rights for lesbians and gay men has been met with vicious anti-gay backlash. See id. ¶¶ 66–68; Expert Affidavit of Gary Segura, Ph.D. (“Segura Aff.”) ¶¶ 35–44. Campaigns have spread false stereotypes of lesbians and gay men as child molesters, unfit parents, and threats to heterosexuals— stereotypes that linger to this day. See Chauncey Aff. ¶¶ 68–86. Unfortunately, discrimination against lesbians and gay men is not a historical relic. Indeed, until judicial intervention in 2003, states were able to “demean [lesbians’ and gay men’s] existence or control their destiny by making their private sexual conduct a crime.” Lawrence, 539 U.S. at 578. To this day, lesbians and gay men are subjected to continued opprobrium from leading political and religious figures and the ever-present threat of anti-gay violence. Chauncey Aff. ¶¶ 91–102. The Supreme Court has long recognized that such an extensive history of discrimination supports the application of heightened scrutiny. 15 Case 1:10-cv-08435-BSJ -JCF Document 29 Filed 06/24/11 Page 24 of 51 See, e.g., Virginia, 518 U.S. at 531–32 (noting the “long and unfortunate history of sex discrimination”) (quoting Frontiero v. Richardson, 411 U.S. 677, 684 (1973)). In short, it is difficult to imagine how BLAG, or indeed anyone else, could seriously dispute the history of discrimination suffered by gay men and lesbians. 2. Sexual Orientation Has No Bearing on Ability to Participate in or Contribute to Society Classifications based on a “characteristic” that “frequently bears no relation to ability to perform or contribute to society” further reinforce the need for heightened scrutiny because such classifications are rarely a legitimate basis for government decisionmaking. Frontiero, 411 U.S. at 686; accord Plyler, 457 U.S. at 216 n.14 (“Classifications treated as suspect tend to be irrelevant to any proper legislative goal.”); City of Cleburne, 473 U.S. at 440–41 (noting that classifications that do not “rest[] on meaningful considerations” require heightened scrutiny). As Plaintiff’s uncontradicted expert observes, a person’s sexual orientation is not correlated with any “‘impairment in judgment, stability, reliability, or general social and vocational capabilities.’” Expert Affidavit of Letitia Anne Peplau, Ph.D (“Peplau Aff.”) ¶ 30 (quoting Am. Psychiatric Ass’n, Position Statement on Homosexuality and Civil Rights, 60 Am. J. Psychiatry 436, 497 (1974)). Indeed, “[b]eing gay or lesbian has no inherent association with a person’s ability to participate in or contribute to society.” Peplau Aff. ¶ 29. Obviously, few if any people today would seriously contend that an individual’s ability to be a judge, a lawyer, a doctor, a scientist, or even a software programmer is in any way affected by the fact that he or she is heterosexual, gay, or lesbian. The only people who might take that position are those who still view homosexuality as a mental disorder, but the medical profession rejected 16 Case 1:10-cv-08435-BSJ -JCF Document 29 Filed 06/24/11 Page 25 of 51 that conclusion almost forty years ago. Peplau Aff. ¶ 30 (citing Gregory M. Herek & Linda D. Garnets, Sexual Orientation and Mental Health, 3 Ann. Rev. Clinical Psycol. 353, 354 (2007)); cf. City of Cleburne, 473 U.S. at 442–43 (holding that classifications based on disabilities are not suspect because mental and physical disabilities are relevant to a person’s ability to participate in society). In light of the overwhelming and undisputed record, it is clear that sexual orientation bears no relation to an individual’s ability to perform or contribute to society. Sexual orientation thus plainly satisfies the two essential heightened scrutiny factors. 3. Sexual Orientation Is a Core Part of Individual Identity and Is Immutable In addition to the two essential heightened scrutiny factors discussed above, sexual orientation classifications also satisfy the alternative factor of immutability. It is well-settled that legislation should not burden individuals on the basis of a core trait that they cannot or should not have to change, which provides another reason for courts to look more closely at laws that do impose such burdens. Cf. Parham v. Hughes, 441 U.S. 347, 353 (1979) (“Unlike the illegitimate child for whom the status of illegitimacy is involuntary and immutable . . . .”). By contrast, where the characteristic is something that changes over time for most people, there is less reason for courts to be concerned, because legislation drawing lines based on that characteristic could potentially burden all individuals equally. See, e.g., Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 83 (2000) (reaffirming that age is not suspect classification under Equal Protection Clause because all people will experience old age if they live out their normal life spans).7 7 Moreover, it is now clear for constitutional purposes that laws that discriminate based on sexual orientation, such as Section 3 of DOMA, cannot be excused or justified 17 Case 1:10-cv-08435-BSJ -JCF Document 29 Filed 06/24/11 Page 26 of 51 To the extent immutability is relevant, the Supreme Court also has recognized that a defining characteristic need not be absolutely unchangeable for it to form the basis of a suspect classification. See, e.g., Graham v. Richardson, 403 U.S. 365, 375–76 (1971) (classifications based on alienage subject to strict scrutiny); see also City of Cleburne, 473 U.S. at 442–43 & n.10 (relevance of immutability).8 After all, few if any of the suspect classifications identified by the Supreme Court are truly “immutable” in the strictest sense of the word—people can convert religions, aliens can become naturalized, individuals can change their sex, and some people can “pass” or even modify outward signs of their race or national origin. Nonetheless, all of these classifications have been deemed “immutable” in the heightened scrutiny analysis. Applying these principles here, there is, as the Attorney General has recognized, “a growing scientific consensus [that] accepts that sexual orientation is a characteristic that is immutable.” Holder Letter at 3; see also Peplau Aff. ¶¶ 19–28. Like the history of discrimination or the ability to contribute to society, few people today merely as discrimination against certain conduct. See Lawrence, 539 U.S. at 575 (“When homosexual conduct is made criminal by law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination . . . .” (emphasis added)); accord id. at 583 (O’Connor, J., concurring in judgment) (“While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, Texas’ sodomy law is targeted at more than conduct. It is instead directed toward gay persons as a class.”). The Supreme Court has reaffirmed since Lawrence that, with regard to sexual orientation and same-sex intimacy, “[o]ur decisions have declined to distinguish between status and conduct in this context.” CLS, 130 S. Ct. at 2990. Thus, under the law, lesbians and gay men cannot be denied fair treatment on the grounds that there is some meaningful distinction that can be drawn between “being gay” and “engaging in homosexual conduct.” 8 See also Murgia, 427 U.S. at 313 (not listing “immutability” as requirement for strict scrutiny); San Antonio Indep. Sch. Dist., 411 U.S. at 28 (1973). 18 Case 1:10-cv-08435-BSJ -JCF Document 29 Filed 06/24/11 Page 27 of 51 would argue that a gay man can willfully change his orientation or that the so-called “therapies” that have been promoted to enable him to do so are anything other than a sham. See Am. Psychological Ass’n, Report of the American Psychological Association Task Force on Appropriate Therapeutic Responses to Sexual Orientation, at v (2009), http://www.apa.org/pi/lgbt/resources/therapeutic-response.pdf (“[E]fforts to change sexual orientation are unlikely to be successful and involve some risk of harm.”). Indeed, sexual orientation is central to individual liberty and identity, as recognized in Lawrence v. Texas. See 539 U.S. at 574. Accordingly, courts that have considered the issue since Lawrence have recognized that sexual orientation (whether straight or gay) constitutes a central element of an individual’s identity, which one should not be compelled to change in order to avoid discriminatory treatment under the law. See, e.g., Varnum v. Brien, 763 N.W.2d 862, 893 (Iowa 2009); Kerrigan, 957 A.2d at 438; In re Marriage Cases, 183 P.3d at 442; see also Watkins v. U.S. Army, 875 F.2d 699, 725 (9th Cir. 1989) (Norris, J., concurring) (immutability describes “traits that are so central to a person’s identity that it would be abhorrent for government to penalize a person for refusing to change them”); Able v. United States, 968 F. Supp. 850, 863–64 (E.D.N.Y. 1997) (“Whether or not sexual orientation is immutable, it forms a significant part of a person’s identity.”), rev’d on other grounds, 155 F.3d 628 (2d Cir. 1998); cf. Hernandez-Montiel v. INS, 225 F.3d 1084, 1093 (9th Cir. 2000) (concluding that “sexual orientation and sexual identity are immutable” for gay men and lesbians for purposes of determining whether they were “social group” eligible for asylum), overruled on other grounds, Thomas v. Gonzalez, 409 F.3d 1177 (9th Cir. 2005). 19 Case 1:10-cv-08435-BSJ -JCF Document 29 4. Filed 06/24/11 Page 28 of 51 Lesbians and Gay Men Lack Political Power Finally, although political disadvantage is not necessarily required for a government classification to be treated as suspect,9 to the extent the inability to redress a group’s grievances politically is relevant, lesbians and gay men are clearly a minority and frequently lack the political power to defend themselves and their civil rights against a hostile majority. Segura Aff. ¶¶ 9–85. “Political power refers to a person’s or group’s demonstrated ability to extract favorable (or prevent unfavorable) policy outcomes from the political system.” Id. ¶ 13. There can be no serious dispute that ongoing political events evince “a continuing antipathy or prejudice” towards lesbians and gay men “and a corresponding need for more intrusive oversight by the judiciary.” City of Cleburne, 473 U.S. at 443; see also Plyler, 457 U.S. at 216 n.14. Thus, for example, gay rights opponents have aggressively used state ballot initiatives and referenda to pass discriminatory laws or repeal protective ones and even to amend state constitutions to deny lesbians and gay men important protections. See, e.g., Romer v. Evans, 517 U.S. 620 (1996); see also Segura Aff. ¶ 36 (citing repeals of legislatively enacted anti-gay discrimination ordinances through popular vote mechanisms); id. ¶¶ 37–38 (surveying anti-marriage initiatives). This kind of “direct democracy” has been used against lesbians and gay men more than any other group. Segura Aff. ¶ 43. This extraordinary use of majoritarian democratic processes to affirmatively disadvantage a lesbian and gay minority vividly illustrates the inability of 9 Though some Supreme Court precedents have considered political powerlessness as a factor in determining whether heightened scrutiny applies, see, e.g., Bowen v. Gilliard, 483 U.S. 587, 602 (1987), it is not a necessary factor, see, e.g., Adarand Constructors, 515 U.S. at 235 (holding that all racial classifications are subject to strict scrutiny, although many racial groups hold substantial political power). 20 Case 1:10-cv-08435-BSJ -JCF Document 29 Filed 06/24/11 Page 29 of 51 gay men and lesbians to protect themselves politically. Cf. San Antonio Indep. Sch. Dist., 411 U.S. at 28 (identifying suspect classifications as those that burden groups that are “relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process”); Carolene Prods., 304 U.S. at 153 n.4 (noting that “more searching judicial inquiry” is warranted when majority prejudice “curtail[s] the operation of those political processes ordinarily to be relied upon to protect minorities”). That there have been some modest and even important political initiatives in recent years that have helped mitigate the discrimination against lesbians and gay men does not alter this analysis. Segura Aff. ¶¶ 15–17. Indeed, the Supreme Court has applied heightened scrutiny to statutes that rely on racial classifications after racial minorities had achieved far greater political victories against discrimination than lesbians and gay men have today. Id. ¶¶ 81–85. By the early 1970s, African-Americans were “protected by three federal constitutional amendments, major federal Civil Rights Acts of 1866, 1870, 1871, 1875 (ill-fated though it was), 1957, 1960, 1964, 1965, and 1968, as well as by antidiscrimination laws in 48 of the states.” High Tech Gays v. Def. Indus. Sec. Clearance Office, 909 F.2d 375, 378 (9th Cir. 1990) (Canby, J., dissenting). By the same token, by the time the Frontiero plurality recognized that sex-based classifications required intermediate judicial scrutiny, Congress had already passed Title VII of the Civil Rights Act of 1964, the Equal Pay Act of 1963, and the Equal Rights Amendment. Frontiero, 411 U.S. at 687–88; Kerrigan, 957 A.2d at 452–53. The existence of these protections did not stop the Supreme Court from holding that laws that discriminate on the basis of race and sex must be subject to heightened scrutiny. 21 Case 1:10-cv-08435-BSJ -JCF Document 29 Filed 06/24/11 Page 30 of 51 By contrast, lesbians and gay men have virtually no political power when measured by the same yardstick. There is no federal legislation prohibiting discrimination on the basis of sexual orientation in employment, education, access to public accommodations, or housing. Segura Aff. ¶ 29. Until 2009, when sexual orientation was added to federal anti-hate crime legislation (over significant opposition), no federal legislation had ever existed to protect individuals on the basis of sexual orientation. Id. ¶ 31. Additional progress recently—including repeal of the military’s ban on lesbian and gay service members by a lame-duck congress following two judicial findings of unconstitutionality, see Log Cabin Republicans v. United States, 716 F. Supp. 2d 884 (C.D. Cal. 2010); Witt v. U.S. Dep’t of Air Force, 739 F. Supp. 2d 1308 (W.D. Wash. 2010)—while important, hardly demonstrates meaningful political capital, particularly as there was overwhelming popular support for repeal long before any legislative progress was made. Segura Aff. ¶ 32. Moreover, eliminating express, de jure discrimination, such as “Don’t Ask, Don’t Tell,” hardly constitutes evidence of affirmative political power. Id. ¶ 25. * * * Because sexual orientation satisfies both of the two essential factors relevant to determining if a given classification is suspect, as well as the two additional critieria that courts sometimes rely upon, DOMA’s exclusion of married same-sex couples from all federal marital protections and obligations should be subject to strict or, at the very least, intermediate scrutiny. 22 Case 1:10-cv-08435-BSJ -JCF Document 29 B. Filed 06/24/11 Page 31 of 51 DOMA Is neither Narrowly Tailored to Serve Any Compelling Government Interest nor Substantially Related to an Important Government Interest 1. DOMA Does Not Satisfy Either the Strict or Intermediate Scrutiny Standard The standard for justifying a discriminatory statute like DOMA under heightened scrutiny is justifiably formidable. To survive strict scrutiny, the government must prove that the classification at issue is “narrowly tailored” and furthers “compelling governmental interests.” Adarand Constructors, 515 U.S. at 227 (emphasis added). Under intermediate scrutiny, the government must still establish that the classification at issue is “substantially related” to an “important governmental objective.” Clark v. Jeter, 486 U.S. 456, 461 (1988) (emphasis added). Under both tests, after-the-fact justifications are not permissible. Under heightened scrutiny, “a tenable justification must describe actual state purposes, not rationalizations for actions in fact differently grounded.” Virginia, 518 U.S. at 535–36. In other words, where, as here, heightened scrutiny applies, “the State must show that the alleged objective was the legislature’s actual purpose for the discriminatory classification,” Shaw v. Hunt, 517 U.S. 899, 908 n.4 (1996) (internal quotation marks omitted), and “not hypothesized or invented post hoc in response to litigation,” Virginia, 518 U.S. at 533 (internal quotation marks omitted). See also, e.g., United States v. Brennan, No. 08-5171-cv (L), 2011 WL 1679850, at *30 (2d Cir. May 5, 2011); Alma Soc’y, Inc. v. Mellon, 601 F.2d 1225, 1234–35 (2d Cir. 1979); Holder Letter at 4. Given these demanding standards, BLAG cannot possibly meet its burden to demonstrate that DOMA’s disparate treatment of married same-sex couples serves any compelling or 23 Case 1:10-cv-08435-BSJ -JCF Document 29 Filed 06/24/11 Page 32 of 51 important state interest, much less one that is narrowly tailored or substantially related to an important governmental objective.10 2. All of Congress’s Justifications for DOMA Fail According to the legislative history, DOMA’s exclusion in 1996 of all same-sex couples who might one day get married from all federal marital protections and obligations was intended to: (a) “defend[] and nurtur[e] the institution of traditional, heterosexual marriage,” H.R. Rep. No. 104-664, at 12 (1996); (b) “promot[e] heterosexuality,” id. at 15 n.53; (c) “encourag[e] responsible procreation and childrearing,” id. at 13; (d) “protect[] . . . democratic self-governance,” id. at 16; (e) “preserve scarce government resources” by preventing marital benefits from “hav[ing] to be made available to homosexual couples and surviving spouses of homosexual marriages,” id. at 18; and (f) promote a “moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality,” id. at 16. As shown below, excluding married same-sex couples from all federal benefits and protections is not narrowly tailored to advance any important, much less a compelling governmental interest.11 10 Because being gay or lesbian, like other classifications that trigger strict scrutiny, has nothing whatsoever to do with an individual’s ability to perform in any job or profession, strict scrutiny is the appropriate level of judicial scrutiny to apply to sexual orientation classifications, but Plaintiff believes that this Court need not determine whether strict or intermediate scrutiny applies, because DOMA cannot withstand either. 11 Indeed, as discussed below, none of these justifications can withstand even rational basis review. 24 Case 1:10-cv-08435-BSJ -JCF Document 29 a) Filed 06/24/11 Page 33 of 51 Preserving “Traditional” Marriage Is Not a Compelling or Important Government Interest It is well settled that “tradition” alone cannot justify the government’s discrimination against a class of individuals. Williams v. Illinois, 399 U.S. 235, 239 (1970) (noting in equal protection challenge that “neither the antiquity of a practice nor the fact of steadfast legislative and judicial adherence to it through the centuries insulates it from constitutional attack”); cf. Varnum, 763 N.W.2d at 898 (“A specific tradition sought to be maintained cannot be an important governmental objective for equal protection purposes, however, when the tradition is nothing more than the historical classification currently expressed in the statute being challenged.”); Kerrigan, 957 A.2d at 478 (same); Goodridge v. Dept. of Pub. Health, 798 N.E.2d 941, 972–73 (Mass. 2003) (Greaney, J., concurring) (“To define the institution of marriage by the characteristics of those to whom it always has been accessible, in order to justify the exclusion of those to whom it never has been accessible, is conclusory and bypasses the core question . . . .”). In other words, under the Constitution, discriminatory classifications cannot merely perpetuate past stereotypes or enforce prior discrimination. Thus, the fact that lesbians and gay men have historically been denied access to marriage cannot provide the necessary independent basis for the federal government’s disregard of existing stateapproved marriages of same-sex couples today. Put another way, limiting federal benefits and protections to heterosexual couples is not an independent justification for DOMA. Instead, it simply restates the classification itself. Accepting this kind of circular reasoning would render the entire concept of heightened judicial scrutiny a farce. Indeed, were sustaining the tradition of excluding same-sex couples from the federal benefits of marriage a compelling interest, 25 Case 1:10-cv-08435-BSJ -JCF Document 29 Filed 06/24/11 Page 34 of 51 then so too would have been banning interracial marriage in order to preserve a history of miscegenation laws or avoiding racially integrated education in order to preserve a history of segregated schools. In each such case, a government purpose aimed at perpetuating unequal (albeit traditional) treatment of a group of people cannot justify the history of discrimination. Cf. Romer, 517 U.S. at 635 (“[The amendment at issue] is a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit.”). b) DOMA Does Not Promote Heterosexuality Similarly, any suggestion that DOMA promotes and encourages heterosexuality deserves very short shrift. It is entirely unclear how, for example, denying an 82-year-old widow an estate tax deduction promotes heterosexuality, either with respect to Edie Windsor or anyone else for that matter. To the contrary, as discussed above, the undisputed scientific consensus is that a person’s sexual orientation is enduring and stable, and not the result of personal choice. Peplau Aff. ¶ 28 (“[T]here is converging scientific evidence documenting that sexual orientation reflects an enduring set of attractions and experiences for most people. Efforts to change a person’s sexual orientation through religious or psychotherapy interventions have not been shown to be effective.”). There is surely no “substantial relationship” between Section 3 of DOMA and promoting heterosexuality, or any sense in which DOMA is narrowly tailored to achieve that end. c) DOMA Does Not Promote Responsible Procreation or ChildRearing Excluding married same-sex couples from all federal marital protections and obligations is also thoroughly unrelated to any interest the federal government may 26 Case 1:10-cv-08435-BSJ -JCF Document 29 Filed 06/24/11 Page 35 of 51 have in promoting “responsible procreation” or child-rearing. DOMA instead works directly contrary to such interests because it “prevent[s] children of same-sex couples from enjoying the immeasurable advantages that flow from the assurance of a stable family structure when afforded equal recognition under federal law.” Gill v. Office of Pers. Mgmt., 699 F. Supp. 2d 374, 389 (D. Mass. 2010) (internal quotation marks omitted); Expert Affidavit of Michael Lamb (“Lamb Aff.”) ¶¶ 41–42. DOMA’s congressional supporters claimed it was necessary to override state determinations of what constitutes a valid marriage “because our society recognizes that heterosexual marriage provides the ideal structure within which to beget and raise children.” Defense of Marriage Act: Hearing on H.R. 3396 Before the Subcomm. on the Const. of the H. Comm. on the Judiciary, 104th Cong. 1 (1996) (statement of Rep. Canaday, Chairman, H. Subcomm. on the Const.). Because that statement is demonstrably false, and relies on stereotypes and other impermissible considerations, it cannot provide a sufficient justification for DOMA’s disregard for valid state-approved marriages. There is clear expert consensus, based on decades of social science research concerning same-sex couples as parents, that the children raised by lesbian or gay parents are just as well-adjusted as those of heterosexual parents. See Lamb Aff. ¶¶ 28–37. The factors predicting the healthy adjustment of children are the same for lesbian and gay parents as for heterosexual parents, and include the quality of the parentchild relationship and the availability of sufficient economic and social resources. See id. ¶¶ 18–20; Gill, 699 F. Supp. 2d at 388 & n.106 (since enactment of DOMA in 1996, “a consensus has developed among the medical, psychological, and social welfare 27 Case 1:10-cv-08435-BSJ -JCF Document 29 Filed 06/24/11 Page 36 of 51 communities that children raised by gay and lesbian parents are just as likely to be welladjusted as those raised by heterosexual parents”).12 Moreover, DOMA does nothing to advance this purported interest. It does not alter the fact that same-sex married couples, like many different-sex married couples, conceive children through assisted reproduction, or form families through adoption. Excluding validly married same-sex couples from federal marital benefits and protections cannot possibly be said to be “narrowly tailored” to achieving a goal of having children be raised by heterosexual married parents. (Nor, as discussed below, is it even rationally related to that so-called interest. See infra Part III.B.) d) DOMA Undermines Democratic Self-Governance Despite Congress’s lip-service to the contrary in 1996, DOMA undermines democratic self-governance because it undermines the ability of citizens of a state (through their democratically elected leaders) to exercise their authority to regulate marriage—or to “vote with their feet” by relocating to a state that recognizes marriage between same sex couples. DOMA instead foists on all states, including those like New 12 Citing Comm. on Psychosocial Aspects of Child and Family Health, Am. Acad. of Pediatrics, Coparent or Second-Parent Adoption by Same-Sex Parents, 109 Pediatrics 339 (2002), available at http://pediatrics.aappublications.org/cgi/reprint/109/2/ 339.pdf; Am. Psychological Ass’n, Resolution on Sexual Orientation, Parents, and Children, in Proceedings of the American Psychological Association for the Legislative Year 2004, 60 Am. Psychol. 436, 496–97 (2005), available at http://www.apa.org/ about/governance/council/policy/parenting.aspx; Am. Acad. of Child & Adolescent Psychiatry, Gay, Lesbian, Bisexual, or Transgender Parents Policy Statement, http://www.aacap.org/cs/root/policy_statements/gay_lesbian_transgender_and_bi sexual_parents_policy_statement; Am. Med. Ass’n, AMA Policy Regarding Sexual Orientation, http://www.ama-assn.org/ama/pub/about-ama/our-people/member-groups-sections/glbt-advisory committee/ama-policy-regarding-sexual-orientation.shtml; Child Welfare League of Am., Position Statement on Parenting of Children by Lesbian, Gay, and Bisexual Adults, http://www.cwla.org/programs/ culture/glbtqposition.htm. 28 Case 1:10-cv-08435-BSJ -JCF Document 29 Filed 06/24/11 Page 37 of 51 York that recognize valid marriages of same-sex couples from other jurisdictions, and on United States citizens from across the country, a mandatory, second-class category of marriage. In any event, Congress’s “interest” in “protecting” democratic selfgovernance can never constitute a compelling or important interest that justifies a discriminatory law. Like the “preserving tradition” argument discussed above, this circular reasoning would permit the federal government to discriminate simply because the majority wants to discriminate. That, of course, is precisely what the Fifth Amendment was designed to prevent. e) DOMA Does Not Conserve Resources Congress’s justification that federal non-recognition of legal same-sex marriages conserves resources can be easily disposed of because it is demonstrably false. According to the nonpartisan Congressional Budget Office, the recognition of the marriages of same-sex couples would actually increase annual net federal revenue. Cong. Budget Off., U.S. Cong., The Potential Budgetary Impact of Recognizing SameSex Marriages 1 (June 21, 2004), http://www.cbo.gov/ftpdocs/55xx/doc5559/06-21SameSexMarriage.pdf.13 Even if refusing to recognize the legal marriages of same-sex couples did save the federal government money (which it does not), such cost-cutting, standing alone, cannot constitute a compelling or important governmental interest. Plyler, 457 U.S. at 13 In any event, saving public resources, although mentioned in the House Report, did not actually motivate the enactment of DOMA. Gill, 699 F. Supp. 2d at 390 n.116 (“[T]he House rejected a proposed amendment to DOMA that would have required a budgetary analysis of DOMA’s impact prior to passage.”) (citing 142 Cong. Rec. H7503–05 (daily ed. July 12, 1996)). 29 Case 1:10-cv-08435-BSJ -JCF Document 29 Filed 06/24/11 Page 38 of 51 227 (“[A] concern for the preservation of resources standing alone can hardly justify the classification used in allocating those resources.”) (citing Graham, 403 U.S. at 374–75); Shapiro v. Thompson, 394 U.S. 618, 633 (1969) (“[A State] must do more than show that denying welfare benefits to new residents saves money.”), overruled on other grounds by Edelman v. Jordan, 415 U.S. 651 (1974); In re Levenson, 587 F.3d 925, 933 (9th Cir. 2009) (Reinhardt, J.) (“[T]hat a government policy incidentally saves the government an insignificant amount of money does not provide a rational basis for that policy if the policy is, as a cost-saving measure, drastically underinclusive, let alone founded upon a prohibited or arbitrary ground.”). f) “Moral Disapproval” Is Not a Compelling or Important Government Interest If there is one objective that DOMA was in fact intended to achieve it is moral condemnation of gay men and lesbians. The legislative history explicitly states that DOMA was intended to express the “moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially JudeoChristian) morality.” H.R. Rep. No. 104-664, at 15–16; see Dragovich v. U.S. Dep’t of Treas., No. 10-01564 (CW), 2011 WL 175502, at *12 (N.D. Cal. Jan. 18, 2011) (“[A]nimus toward, and moral rejection of, homosexuality and same-sex relationships are apparent on the congressional record.”); see also Exs. 1–7 to Affidavit of Andrew J. Ehrlich (collecting examples of anti-gay animus in congressional record). But “the denial of federal benefits to same-sex spouses cannot be justified as an expression of the government’s disapproval of homosexuality, preference for heterosexuality, or desire to discourage gay marriage.” 30 Levenson, 587 F.3d at 932. Case 1:10-cv-08435-BSJ -JCF Document 29 Filed 06/24/11 Page 39 of 51 Animus against gay men and lesbians, as a matter of law, is not a legitimate, much less an important or compelling, government interest. Romer, 517 U.S. at 632. “[I]f the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.” United States Dep’t of Agric. v. Moreno, 413 U.S. 528, 534 (1973). Indeed, the Supreme Court has soundly rejected moral disapproval as a justification for discrimination against lesbians and gay men, holding that “‘the fact that the governing majority in a State has traditionally viewed [homosexuality] as immoral is not a sufficient reason for upholding a law prohibiting the practice.’” Lawrence, 539 U.S. at 577 (quoting Bowers v. Hardwick, 478 U.S. 186, 216 (1986) (Stevens, J., dissenting)); id. at 583 (O’Connor, J., concurring) (“Moral disapproval of a group cannot be a legitimate governmental interest under the Equal Protection Clause because legal classifications must not be ‘drawn for the purpose of disadvantaging the group burdened by the law.’” (quoting Romer, 517 U.S. at 633)). Here too, “mere negative attitudes, or fear, unsubstantiated by factors which are properly cognizable . . . , are not permissible bases” for governmental discrimination. City of Cleburne, 473 U.S. at 488. III. EVEN UNDER RATIONAL BASIS REVIEW, DOMA IS UNCONSTITUTIONAL While, as discussed above, the question of DOMA’s constitutionality should properly be analyzed under the heightened scrutiny standard, even if it were to be analyzed under the more lenient rational basis standard, it would still fail. 31 Case 1:10-cv-08435-BSJ -JCF Document 29 A. Filed 06/24/11 Page 40 of 51 The Applicable Standard Under rational basis review, a statute will be upheld as constitutional “if the classification drawn by the statute is rationally related to a legitimate state interest.” City of Cleburne, 473 U.S. at 440. Still, there must be a “link between classification and objective,” Romer, 517 U.S. at 632, i.e., “some relation between the classification and the purpose it serve[s].” Id. at 633. Importantly, it is the classification—the challenged discrimination—and not the law as a whole that must rationally advance a legitimate governmental interest. Bd. of Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356, 366– 67 (2001); Rinaldi v. Yeager, 384 U.S. 305, 308–09 (1966). “Despite the wide latitude afforded [the government under this level of review] . . . distinctions that do not have a rational basis will not be sustained.” Myers v. Cnty. of Orange, 157 F.3d 66, 75 (2d Cir. 1998). “In a long line of cases, the Supreme Court has applied rational basis scrutiny to strike down legislation where the permissible bounds of rationality were exceeded.” Sharif v. N.Y. State Educ. Dep’t, 709 F. Supp. 345, 364 (S.D.N.Y. 1989) (citing cases). A classification fails rational basis review if its connection to the asserted purpose, while not totally lacking, is “so attenuated as to render the distinction arbitrary or irrational.” City of Cleburne, 473 U.S. at 446. For example, in Romer, Colorado defended its ban on antidiscrimination protection for gay people by asserting that the ban rationally furthered two state interests: (1) respecting the religious liberties of landlords and employers, and (2) conserving state resources to fight discrimination against other groups. 517 U.S. at 635. Yet the Supreme Court held that those interests, even if legitimate on their own, were “so far removed” from the ban’s classification, which singled out gay people for its burden, that it was “impossible to credit” that they were the 32 Case 1:10-cv-08435-BSJ -JCF Document 29 Filed 06/24/11 Page 41 of 51 reason for the law. Id. Here too, DOMA is so far removed from any legitimate purpose that it is simply impossible to credit any “relation between the classification and the purpose it serves.” Id. at 633. B. Congress’s 1996 Justifications for DOMA Fail Rational Basis Review In circuits that, unlike the Second Circuit, had already decided what level of scrutiny applies to sexual orientation classifications, and prior to the U.S. Attorney General’s determination that such classifications should be subject to heightened scrutiny, numerous courts have applied rational basis review to DOMA’s purported justifications. Even under that lower level of scrutiny, these courts held that the government’s justifications were either illegitimate or insufficient. See, e.g., Dragovich, 2011 WL 175502; Gill, 699 F. Supp. 2d 374; Levenson, 587 F.3d 925; In re Balas, No. 2:11-BK-17831 (TD), 2011 WL 2312169 (Bankr. C.D. Cal. June 13, 2011).14 As discussed above, the House Report for DOMA identified the congressional interests purportedly served by denying federal marital protections and 14 While a few district courts previously held that DOMA’s discrimination against married same-sex couples was not unconstitutional, those decisions either did not involve Section 3 of DOMA and federal benefits at all, see e.g., Ake v. Wilson, 354 F. Supp. 2d 1298 (M.D. Fla. 2005) (challenge to Florida’s refusal to recognize marriage of same-sex couple married in Massachusetts); or ignored the complete lack of any rational connection between DOMA’s sexual orientation classification and a legitimate government interest, see e.g., In re Kandu, 315 B.R. 123, 145–47 (W.D. Wa. 2004) (accepting assertion that DOMA advanced interest in “encouraging the development of relationships optimal for procreation” and finding that DOMA “simply codified that definition of marriage historically understood by society”); Smelt v. Cnty. of Orange, 374 F. Supp. 2d 861, 880 (C.D. Cal. 2005) (accepting assertion that “Congress could plausibly have believed sending [the] message [that heterosexual marriages have special significance] makes it more likely people will enter into opposite-sex unions, and encourages those relationships”), aff’d in part and vacated in part on other grounds, 477 F.3d 673 (9th Cir. 2006). 33 Case 1:10-cv-08435-BSJ -JCF Document 29 Filed 06/24/11 Page 42 of 51 obligations to married same-sex couples. See 142 Cong. Rec. H7503–05 (daily ed. July 12, 1996). As also explained above, those justifications are unsound either because they are plainly illegitimate interests or because the relationship between the purported justifications and DOMA’s discriminatory classification is “so attenuated as to render the distinction arbitrary or irrational.” City of Cleburne, 473 U.S. at 446. Preserving “traditional” marriage is not a legitimate interest. As set forth above, a history and tradition of limiting marriage to straight couples alone cannot justify DOMA’s discrimination. That purported justification does not explain the classification as equal protection requires, but merely restates the classification and fails to provide any independent purpose for DOMA’s exclusion of one class of staterecognized marriages from federal marital protections and obligations. See Romer, 517 U.S. at 633 (classification “must bear a rational relationship to an independent and legitimate legislative end”). Accordingly, it cannot provide a rational basis for DOMA’s denigration of married same-sex couples. Gill, 699 F. Supp. 2d at 389–90; Levenson, 587 F.3d at 932. DOMA does not “promote” heterosexuality. No one could rationally credit that denying the validity of state-approved marriages of same sex couples would have any impact on whether different-sex couples marry or divorce, or cohabit. Nor does Section 3 of DOMA “encourage[ gay men and lesbians] to enter into marriages with members of the opposite sex.” Levenson, 587 F.3d at 932 (applying rational basis review). Indeed, applying rational basis scrutiny to this purported governmental interest, Judge Tauro in Gill simply could not “discern a means by which the federal government’s denial of benefits to same-sex spouses might encourage homosexual people 34 Case 1:10-cv-08435-BSJ -JCF Document 29 Filed 06/24/11 Page 43 of 51 to marry people of the opposite sex.” Gill, 699 F. Supp. 2d at 389. Accord Dragovich, 2011 WL 175502, at *11 (“The exclusion of same-sex couples from the federal definition of marriage does not encourage heterosexual marriages.”). DOMA does not advance any legitimate interest in child-rearing. Section 3 of DOMA’s connection with child-rearing is also too attenuated to meet even rational basis review. Procreation and child-rearing are not the sole or even the primary focus of marriage, certainly under federal law. For example, “the ability to procreate is not now, nor has it ever been, a precondition to marriage in any state in the country.” Gill, 699 F. Supp. 2d at 389 (citing Lawrence, 539 U.S. at 605 (2003) (Scalia, J., dissenting)); see also Expert Affidavit of Nancy Cott (“Cott Aff.”) ¶ 19. The federal government, for its part, has never treated married heterosexual couples differently if they were infertile or otherwise unable or unwilling to procreate. And the great majority of the federal protections and obligations that come with marriage relate not to child-rearing or procreation but to practical protections aimed at the adults.15 On the other hand, DOMA excludes married same-sex couples not just from federal recognition of their relationship in contexts relating to children or procreation, but in every one of the 1,138 federal statutes and programs that relate to marriage in any way. DOMA’s sweeping breadth, and the striking disconnect between the classification and the purported purpose, make it “impossible to credit” that this law was crafted to promote child-rearing by heterosexuals. Romer, 517 U.S. at 635. 15 DOMA affects over a thousand rights and obligations, many of which do not relate to children. See Cong. Budget Off., U.S. Cong., The Potential Budgetary Impact of Recognizing Same-Sex Marriages 1 (June 21, 2004), http://www.cbo.gov/ftpdocs/ 55xx/doc5559/06-21-SameSexMarriage.pdf. 35 Case 1:10-cv-08435-BSJ -JCF Document 29 Filed 06/24/11 Page 44 of 51 Because it is “beyond scientific dispute” that a child’s adjustment is not determined by his parents’ sexual orientation, see Lamb Aff. ¶ 13, any suggestion by DOMA’s defenders that it advances a legitimate interest in ensuring that children will be better adjusted by being raised in households with heterosexual parents to whom they are biologically-related cannot provide a rational basis for DOMA’s discrimination. Gill, 699 F. Supp. 2d at 388–89. The scientific evidence, in fact, demonstrates that male and female parents can be equally competent, and that the absence of a male or female parent does not affect child development. Lamb Aff. ¶¶ 23–27. And even more fundamentally, as discussed above, DOMA does nothing to alter the fact that same-sex couples may marry and raise children together, and may reside in states like New York that recognize their marriages. In re Levenson, 587 F.3d at 934 (DOMA “does not serve any governmental interest in promoting a child-rearing environment,” and thus fails rational basis review “because [. . . ] the denial of benefits to same-sex spouses will not affect the decisions made by same-sex couples regarding marriage or parenting.”). As a result, it is simply impossible to credit this so-called “interest” as a rational justification for DOMA’s exclusion of same-sex couples from federal benefits and programs. DOMA does not promote self-governance. Nor can Section 3 of DOMA be said to rationally advance a legitimate interest in promoting self-governance; instead, as discussed above, it denies states their traditional role in regulating marriage, and arbitrarily disregards the state-approved marriages of same-sex couples. Gill, 699 F. Supp. 2d. at 391 (“There can be no dispute that the subject of domestic relations is the exclusive province of the states. And the powers to establish eligibility requirements for 36 Case 1:10-cv-08435-BSJ -JCF Document 29 Filed 06/24/11 Page 45 of 51 marriage, as well as to issue determinations of martial status, lie at the very core of such domestic relations law.”); Cott Aff. ¶ 88. DOMA does not conserve resources. Finally, DOMA does not rationally advance any legitimate interest in conserving government resources. As the court observed in Gill, “the Congressional Budget Office concluded in 2004 that recognition of same-sex marriages by all fifty states would actually result in a net increase in federal revenue.” 699 F. Supp. 2d at 390 n.116. Moreover, this justification fails because “[t]here is no rational relationship” whatsoever between the sex of a person’s spouse and the federal government’s desire to limit its outlays. Levenson, 587 F.3d at 933; accord Gill, 699 F. Supp. 2d at 390. See also Romer, 517 U.S. at 635 (“Colorado also cites its interest in conserving resources to fight discrimination against other groups. The breadth of the amendment is so far removed from [this] justification[] that we find it impossible to credit . . . .”). The only congressional justification DOMA does rationally advance is one the Supreme Court has held is constitutionally invalid no matter what the standard—the expression of animus and moral disapproval toward lesbians and gay men. See Romer, 517 U.S. at 632; Part II.B.2.f, supra. C. No Other Rational Basis for DOMA Can Be Asserted Moreover, none of the additional purported justifications asserted in previous litigation regarding Section 3 of DOMA can overcome the patent lack of a rational basis for the statute’s discrimination. DOMA does not avoid inconsistency. As Judge Reinhardt of the Ninth Circuit recognized, the claim that DOMA’s definition of marriage avoids inconsistency across states, because same-sex couples cannot marry in every jurisdiction, must fail 37 Case 1:10-cv-08435-BSJ -JCF Document 29 Filed 06/24/11 Page 46 of 51 “[e]ven under the more deferential rational basis review [. . . ].” Levenson, 587 F.3d at 933. Varying state eligibility requirements for marriage throughout our country’s history have meant that heterosexual couples who could validly marry in one state might not be able to in another. Gill, 699 F. Supp. 2d at 391; Cott Aff. ¶¶ 24–64. “And yet the federal government has fully embraced these variations and inconsistencies in state marriage laws by recognizing as valid for federal purposes any heterosexual marriage which has been declared valid pursuant to state law.” Gill, 699 F. Supp. 2d at 391 (internal citations omitted). In other words, Congress has never before cared about uniformity across state definitions of marriage, even though, for example, only a minority of states recognize common law marriages, Cott Aff. ¶¶ 36–38, so any assertion of such an interest here simply cannot be credited. See City of Cleburne, 473 U.S. at 448–50 (under rational basis review, government may not single out a group for disfavored treatment where the group does not present any “special threat to the [state’s] legitimate interests”). While the rational basis inquiry may not require a perfect fit between a classification and its justification, “this deferential constitutional test nonetheless demands some reasonable relation between the classification in question and the purpose it purportedly serves.” Gill, 699 F. Supp. 2d at 396. The government “may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational.” Id. at 388 (quoting City of Cleburne, 473 U.S. at 446). DOMA does not preserve the status quo. The argument, asserted in other cases, that DOMA “preserves the status quo,” in that no state allowed same-sex couples to marry when DOMA was enacted in 1996, is similarly unavailing. As courts applying 38 Case 1:10-cv-08435-BSJ -JCF Document 29 Filed 06/24/11 Page 47 of 51 rational basis review have pointed out, the “assertion that pursuit of this interest provides a justification for DOMA rests on a conspicuous misconception of what the status quo was at the federal level in 1996.” Gill, 699 F. Supp. 2d at 393 (emphasis in original). At the time, the federal status quo “was to recognize, for federal purposes, any marriage declared valid according to state law.” Id. In other words, “DOMA did not preserve the status quo vis-à-vis the relationship between federal and state definitions of marriage; to the contrary, it disrupted the long-standing practice of the federal government deferring to each state’s decisions as to the requirements for a valid marriage.” Levenson, 587 F.3d at 933. * * * As the Supreme Court has explained, “laws singling out a certain class of citizens for disfavored legal status or general hardships are rare.” Romer, 517 U.S. at 633. They are rare in part because such classifications generally lack any rational connection to a legitimate government interest.16 The Supreme Court in Romer held that the purported justifications for the Colorado amendment at issue failed to provide a rational basis because “[the amendment’s] sheer breadth is so discontinuous with the reasons offered for it that the amendment seem[ed] inexplicable by anything but animus toward the class it affect[ed].” Id. at 632. DOMA paints with a similarly broad brush by denying married same-sex couples all federal marital benefits and protections, regardless of the nature of those protections. 16 As Justice O’Connor explained in her concurring opinion in Lawrence: “Moral disapproval of a group cannot be a legitimate governmental interest under the Equal Protection Clause because legal classifications must not be drawn for the purpose of disadvantaging the group burdened by the law.” 539 U.S. at 583. 39 Case 1:10-cv-08435-BSJ -JCF Document 29 Filed 06/24/11 Page 48 of 51 In other words, like the Colorado amendment in Romer, Section 3 of DOMA has no “identifiable legitimate purpose or discrete objective.” Id. at 635. Its sweeping breadth—covering the entire range of federal statutes and benefits that pertain to marriage or spouses, including denying couples married under state law recognition of their marriage for purposes of the marital exemption to the federal estate tax; denying married lesbian and gay federal employees the ability to provide health insurance to their spouses; and preventing married bi-national same-sex couples from remaining together in the United States in the ways available to straight couples—makes it impossible to explain the exclusion of married same-sex couples from those benefits and protections by anything other than sheer animus. Cf. id. (“We cannot say that Amendment 2 is directed to any identifiable legitimate purpose or discrete objective. It is a status-based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests; it is a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit.”). Because, under our constitutional framework, the government needs more than animus or moral disapproval to justify the harms and denigration DOMA imposes on married same-sex couples, DOMA fails even rational basis review. IV. BAKER v. NELSON IS NEITHER CONTROLLING NOR PERSUASIVE AUTHORITY_______ Finally, although we anticipate that BLAG will rely heavily on it in their opposition, the Supreme Court’s summary dismissal in Baker v. Nelson, 409 U.S. 810 (1972), almost four decades ago is not persuasive authority that should inform, let alone bind, this Court’s resolution of Plaintiff’s equal protection challenge to DOMA. 40 Case 1:10-cv-08435-BSJ -JCF Document 29 Filed 06/24/11 Page 49 of 51 In Baker, a same-sex couple seeking the right to marry challenged on due process and equal protection grounds a Minnesota marriage licensing law that limited marriage to heterosexual couples. Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971). The Minnesota Supreme Court, applying rational basis review, upheld the statute. See id. at 186–87. The U.S. Supreme Court, which was required to accept the appeal under its since-repealed mandatory appellate jurisdiction, summarily dismissed the appeal “for want of a substantial federal question.” Baker, 409 U.S. at 810. The precedential effect of such a dismissal is exceptionally narrow. Summary dispositions are treated as binding only with regard to the precise legal questions and facts presented in the jurisdictional statement. Ill. Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 182 (1979); Mandel v. Bradley, 432 U.S. 173, 176 (1977) (per curiam); Alexander v. Cahill, 598 F.3d 79, 89 n.7 (2d Cir. 2010). Summary dispositions, moreover, do not signal the Supreme Court’s adoption of a lower court’s reasoning. Mandel, 432 U.S. at 176; Bush v. Vera, 517 U.S. 952, 996 (1996) (Kennedy, J. concurring) (“We do not endorse the reasoning of the [lower court] when we order summary affirmance.”). As such, summary dispositions are “a rather slender reed on which to rest future decisions.” Morse v. Republican Party of Va., 517 U.S. 186, 203 n.21 (1996) (quoting Anderson v. Celebrezze, 460 U.S. 780, 784–85 n.5 (1983)); see also Green Party of Conn. v. Garfield, 616 F.3d 213, 225 (2d Cir. 2010) (summary dispositions “provide little guidance” in subsequent disputes). Plaintiff’s claims here present very different legal questions and facts than those at issue in Baker. See Mandel, 432 U.S. at 80, 177 (Brennan, J., concurring). Baker concerned whether the state’s marriage licensing statute (1) deprived appellants of 41 Case 1:10-cv-08435-BSJ -JCF Document 29 Filed 06/24/11 Page 50 of 51 “their liberty to marry” without due process; (2) violated their equal protection rights; and (3) violated their privacy rights. In re Kandu, 315 B.R. 123, 137 (Bankr. W.D. Wash. 2004) (quoting jurisdictional statement). Here, by contrast, Plaintiff challenges the federal government’s refusal to recognize her valid, state-sanctioned marriage for purposes of federal rights and benefits by virtue of DOMA—an entirely different statute that has different legal effects, legislative history, and justifications through entirely different legal arguments than those at issue in Baker. For this reason, Baker has no binding effect in this case. See Smelt v. Cnty. of Orange, 374 F. Supp. 2d 861, 873 (C.D. Cal. 2005) (stating that the court “[could not] conclude Baker necessarily decided the questions raised by the constitutional challenge to DOMA”), aff’d in part and vacated in part on other grounds, 447 F.3d 673 (9th Cir. 2006); In re Kandu 315 B.R. at 137–38 (rejecting Baker’s application to DOMA challenge in part because case concerned “subsequently-enacted federal legislation with its own Congressional history that concerns exclusively federal benefits”); see also In the Matter of the Marriage of J.B. & H.B., 326 S.W.3d 654, 671–72 (Tex. App. 2010) (finding Baker did “not control the disposition” of equal protection challenge to state law that precluded adjudication of married same-sex couple’s divorce petition because it was “distinguishable” and presented different legal issues).17 17 Indeed, two courts already have held that Baker does not control or inform the outcome of equal protection challenges to DOMA because the issues presented are different. Smelt, 374 F. Supp. 2d at 874 (holding that Baker “is not binding precedent on Plaintiffs’ constitutional challenge to Section 3 of DOMA”), aff’d in part and vacated in part on other grounds, 477 F.3d 673 (9th Cir. 2006); In re Kandu 315 B.R. at 137–38 (same). While, as discussed above, Plaintiff disagrees with these courts’ reasoning on the constitutionality of DOMA, there is no dispute that these cases accurately state Baker’s precedential weight. 42 Case 1:10-cv-08435-BSJ -JCF Document 29 Filed 06/24/11 Page 51 of 51 CONCLUSION For all the foregoing reasons, the Court should grant Plaintiff’s motion for summary judgment. Dated: New York, New York June 24, 2011 PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP /s/ Andrew J. Ehrlich ____________________________________ Roberta A. Kaplan, Esq. Andrew J. Ehrlich, Esq. 1285 Avenue of the Americas New York, New York 10019-6064 (212) 373-3000 rkaplan@paulweiss.com aehrlich@paulweiss.com – and – James D. Esseks, Esq. Rose A. Saxe, Esq. AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street New York, New York 10004-2400 (212) 549-2500 jesseks@aclu.org rsaxe@aclu.org – 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 (212) 607-3300 mgoodman@nyclu.org akarteron@nyclu.org aeisenberg@nyclu.org Attorneys for Plaintiff Edith Schlain Windsor 43 Case 1:10-cv-08435-BSJ -JCF Document 81 Filed 09/15/11 Page 1 of 38 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK EDITH SCHLAIN WINDSOR, in her capacity as Executor of the estate of THEA CLARA SPYER, Plaintiff, 10 Civ. 8435 (BSJ) (JCF) ECF Case v. THE UNITED STATES OF AMERICA, Defendant. REPLY MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP Roberta A. Kaplan, Esq. Andrew J. Ehrlich, Esq. 1285 Avenue of the Americas New York, NY 10019-6064 (212)373-3000 rkaplan@paulweiss.com aehrlich@paulweiss. com AMERICAN CIVIL LIBERTIES UNION FOUNDATION James D. Esseks, Esq. Rose A. Saxe, Esq. 125 Broad Street New York, NY 10004 (212) 549-2500 jesseks@aclu.org rsaxe@aclu.org NEW YORK CIVIL LIBERTIES UNION FOUNDATION Melissa Goodman, Esq. Alexis Karteron, Esq. Arthur Eisenberg, Esq. 125 Broad Street, 19th Floor New York, NY 10004 (212) 607-3300 akarteron@nyclu. org aeisenberg@nyclu.org mgoodman@nyclu.org Attorneys for Plaintiff Edith Schlain Windsor Case 1:10-cv-08435-BSJ -JCF Document 81 Filed 09/15/11 Page 2 of 38 TABLE OF CONTENTS Page Table of Authorities ii Preliminary Statement 1 Argument 6 I. II. BLAG'S OPPOSITION TO PLAINTIFF'S SUMMARY JUDGMENT MOTION IS PROCEDURALLY UNSOUND THERE IS NO BINDING PRECEDENT IN THE SECOND CIRCUIT AS TO WHETHER HEIGHTENED SCRUTINY SHOULD APPLY III. 13 A. B. 14 D. V. 9 DOMA IS SUBJECT TO HEIGHTENED SCRUTINY C. IV. 6 History of Discrimination Sexual Orientation Has No Impact on an Individual's Ability to Contribute to Society 16 Sexual Orientation Is Immutable and Is a Core Part of Individual Identity 17 Lesbians and Gay Men Lack Political Power 21 BLAG MISSTATES THE SCIENTIFIC CONSENSUS CONCERNING GAY PARENTS 24 SECTION THREE OF DOMA IS A UNIQUE DEPARTURE FROM A TRADITION OF FEDERAL DEFERENCE TO STATE DECISIONS ABOUT WHETHER A PERSON IS MARRIED 29 CONCLUSION 30 Case 1:10-cv-08435-BSJ -JCF Document 81 Filed 09/15/11 Page 3 of 38 TABLE OF AUTHORITIES Page(s) CASES Able v. United States, 155 F.3d 682 (2d Cir. 1998) 10 Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) 24 Baker v. Nelson, 409 U.S. 810 (1972) 24 Ben-Shalom v. Marsh, 703 F. Supp. 1372 (E.D. Wis. 1989) 12 Ben-Shalom v. Marsh, 881 F.2d 454 (7th Cir. 1989) 12 Bowen v. Gilliard, 483 U.S. 587 (1987) 14 Bowers v. Hardwick, 478 U.S. 186 (1986) 10 Celotex Corp. v. Catrett, All U.S. 317 (1986) 7 City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985) 14 Cooky. Gates, 528 F.3d 42 (1st Cir. 2008) 13 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) 25 Dunn v. Commissioner of Internal Revenue, 70 T.C. 361 (1978) 29 Elk Grove United School District v. Newdow, 542 U.S. 1 (2004) 29 Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati, 860 F. Supp. 417 (S.D.Ohio 1994) 12 Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati, 54 F.3d 261 (6th Cir. 1995) 12 Case 1:10-cv-08435-BSJ -JCF Document 81 Filed 09/15/11 Page 4 of 38 In re Estate ofRanftle, 917N.Y.S.2d 195 (1st Dep't 2011) 6 Gill v. Office of Personnel Management, 699 F. Supp. 2d 374 (D. Mass. 2010) 26 Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006) 5 High Tech Gays v. Defense Industrial Security Clearance Office, 668 F. Supp. 1361 (N.D. Cal. 1987) 12 High Tech Gays v. Defense Industrial Security Clearance Office, 895 F.2d 563 (9th Cir. 1990) 12 Holmes v. California National Guard, 124 F.3d 1126 (9th Cir. 1997) 13 Jeffreys v. City of New York, 426 F.3d 549 (2d Cir. 2005) 9, 28 Johnson v. Johnson, 385 F.3d 503 (5th Cir. 2004) 12 Kerrigan v. Commissioner of Public Health, 957 A.2d 407 (Conn. 2008) 14 Kimel v. Florida Board of Regents, 528 U.S. 62 (2000) 20 Lawrence v. Texas, 539 U.S. 558 (2003) passim Lewis v. N. Y. State Deparment of Civil Service, 872 N.Y.S.2d 578 (3d Dep't 2009) Lofton v. Kearney, 157 F.Supp.2d 1372 (S.D. Fla. 2001) 6 28 Lofton v. Secretary of the Department of Children & Family Services, 358 F.3d 804 (11th Cir. 2004) Martinez v. County of Monroe, 850 N.Y.S.2d 740 (4th Dep't 2008) 12, 13 6 Massachusetts Board of Retirement v. Murgia, All U.S. 307 (1976) in 17 Case 1:10-cv-08435-BSJ -JCF Document 81 Filed 09/15/11 Page 5 of 38 In re May's Estate, 114N.E.2d4(N.Y. 1953) 6 Nordlinger v. Hahn, 505 U.S. 1 (1992) 13 Padula v. Webster, 822 F.2d 97 (D.C. Cir. 1987) 11, 12 Price-Comelison v. Brooks, 524F.3d 1103 (10th Cir. 2008) 13 Richenberg v. Perry, 91 F.3d. 256 (8th Cir. 1996) 12, 13 Romer v. Evans, 517 U.S. 620 (1996) passim Rowland v. Mad River Local School District, 470 U.S. 1009(1985) 11 Scarbrough v. Morgan County Board of Education, 470 F.3d 250 (6th Cir. 2006) 13 Thomasson v. Perry, 80 F.3d 915 (4th Cir. 1996) 12 Trans Sport, Inc. v. Starter Sportswear, Inc., 964 F.2d 186 (2d Cir. 1992) 29 Tuan Anh Nguyen v. Immigation and Naturalization Service, 533 U.S. 53 (2001) 24, 25 United States v. Virginia, 518 U.S. 515 (1996) 17, 24 Veney v. Wyche, 293 F.3d 726 (4th Cir. 2002) 13 Witt v. Department of the Air Force, 527 F.3d 806 (9th Cir. 2008) 13 Woodward v. United States, 871 F.2d 1068 (Fed. Cir. 1989) 12 IV Case 1:10-cv-08435-BSJ -JCF Document 81 Filed 09/15/11 Page 6 of 38 STATUTES 1 U.S.C. § 7 1 10 U.S.C. § 654(f)(1) 3 26 U.S.C. §7703 29 42 U.S.C. §416 29 OTHER AUTHORITIES 142 Cong. Rec. H7485 (daily ed. July 12, 1996) 3 142 Cong. Rec. S10068 (daily ed. Sept. 9, 1996) 3 Arthur S. Leonard, Exorcizing the Ghosts q/'Bowers v. Hardwick: Uprooting Invalid Precedents, 84 Chi.-Kent L. Rev. 519 (2009) 13 George W. Dent, TVo Difference?: An Analysis of Same-Sex Parenting, 10 Ave Maria L. Rev. (forthcoming 2011) 28 George W. Dent, The Defense of Traditional Marriage, 15 J.L. & Pol. 581 (1999) 28 Gregory M. Herek et al., Demographic, Psychological, and Social Characteristics of Self-Identified Lesbian, Gay, and Bisexual Adults in a US Probability Sample Sex. Res. Soc. Pol'y 176 (2010) 18 John Hart Ely, Democracy & Distrust (1980) 11 Laurence H. Tribe, American Constitutional Law (2d ed.) (1988) 11 Lisa M. Diamond & Ritch C. Savin-Williams, Explaining Diversity in the Development of Same-Sex Sexuality Among Young Women J. of Soc. Issues 301 (2000) 18 New Paradigms for Research on Heterosexual & Sexual-Minority Development, 32 J. of Clinical Child & Adolescent Psychol. 492 (2003) 18 Nigel Dickson et al., Same-Sex Attraction in a Birth Cohort: Prevalence and Persistence in Early Adulthood Soc. Sci. & Med. 1607(2003) 19 Sheryl Gay Stolberg, For Bachmann, Gay Rights Stand Reflects Mix of Issues and Faith, N.Y. Times (July 17, 2011) 23 The Constitutional Status of Sexual Orientation: Homosexuality as a Suspect Classification, 98 Harv. L. Rev. 1285 (1985) 11 Case 1:10-cv-08435-BSJ -JCF Document 81 Filed 09/15/11 Page 7 of 38 Will Weissert, Perry Signs Pledge on Anti-Gay Marriage Amendment, Associated Press (Aug. 26, 2011) VI 23 Case 1:10-cv-08435-BSJ -JCF Document 81 Filed 09/15/11 Page 8 of 38 Plaintiff Edith ("Edie") Schlain Windsor respectfully submits this reply memorandum of law in support of her motion for summary judgment. PRELIMINARY STATEMENT As is so often true when a case is exposed to the bright light of the adversarial process, what is most telling about BLAG's opposition to Plaintiffs motion for summary judgment are the arguments that BLAG does not make, instead of the ones that it does. Most significantly, apart from an incomprehensible footnote (BLAG Opp. Br. at 20 n.34), BLAG does not even argue that Section 3 of the so-called Defense of Marriage Act, or DOMA, 1 U.S.C. § 7, survives the demanding review required under the heightened scrutiny standard. BLAG does not argue that the statutory discrimination against gay men and lesbians at issue in this case is either narrowly tailored to serve a compelling governmental interest or that it is substantially related to an important governmental objective.1 BLAG, similarly does not (because it cannot) dispute the history of discrimination endured by lesbians and gay men in this country, often at the hands of the federal government itself. BLAG does not (again, because it cannot) dispute that gay men and lesbians are as able as straight people to contribute to our society. Because the courts have long held that these are the two most important factors in deciding whether heightened scrutiny should apply, BLAG has no persuasive argument as to why laws like i If the language in footnote 3 in BLAG's most recent reply brief on its motion to dismiss (BLAG MTD Reply Br. at 4 n.3) means that BLAG rests on the same justifications under heightened scrutiny as it does for rational basis, that cannot substitute for an argument as to how DOMA would be tailored to meet those interests. As discussed below, the government bears the burden of proof under heightened scrutiny, and BLAG, represented by distinguished counsel, has chosen what arguments to make in its briefing in this case. Case 1:10-cv-08435-BSJ -JCF Document 81 Filed 09/15/11 Page 9 of 38 DOMA that discriminate on the basis of sexual orientation should not be subject to heightened judicial scrutiny. Rather than address these essential constitutional issues, BLAG instead relies on outdated and non-binding cases from other jurisdictions, and a series of irrelevant arguments, in order to justify the obviously unconstitutional treatment received by Edie Windsor, who was forced to pay a $363,053 federal estate tax bill that a straight widow would not have had to pay. None of BLAG's arguments justify DOMA's blatant discrimination against lesbians and gay men. Indeed, at least three of the propositions advanced by BLAG in its opposition brief so obviously lack merit legally, factually, and as a matter of common sense, that they deserve discussion up front. First, and perhaps most surprising, is BLAG's assertion, as part of its attempt to avoid equal protection analysis altogether, that there is no such thing as a "class" of gay men and lesbians. (See BLAG Opp. Br. at 11 ("These differing definitions [of 'gay,' 'lesbian,' and 'homosexual'] show that these terms are amorphous and do not adequately describe a particular class.").) While at first blush this statement, we respectfully submit, is fairly shocking, what BLAG appears to be saying is that because academics in the field do not uniformly agree upon the precise definition of terms like "gay" or "lesbian," what constitutes a homosexual sexual orientation is too amorphous for lesbians and gay men to constitute an identifiable class of persons for purposes of the United States Constitution. Almost as surprising is BLAG's contention that Plaintiff had a "choice" about being a lesbian based on the fact that she was briefly married to a man in the early 1950s. (BLAG Opp. Br. at 12 n.4.) This argument, like many of BLAG's other assertions, reflects a serious misconception about the life experiences of lesbians and gay men. As Plaintiff recounts in her supplemental affidavit, shortly after marrying her brother's best friend as a result of the overwhelming social pressure not to be "queer," Edie told him that it was simply not fair to him for them to remain married. (Suppl. Case 1:10-cv-08435-BSJ -JCF Document 81 Filed 09/15/11 Page 10 of 38 We respectfully would ask the Court to take a minute or two to pause on this statement given the reality of life today in the United States. When a relative, friend, or colleague says that he is gay, is it really credible (or even intellectually honest) for BLAG to argue that it is impossible to know what that person is talking about? Indeed, Congress itself has passed legislation using the terms "lesbian" and "gay." See Policy Concerning Homosexuality in the Armed Forces, 10 U.S.C. § 654(f)(1) (repealed 2010) ("[T]he term 'homosexual' . . . includes the terms 'gay' and iesbian[.]"'). And when DOMA was passed in 1996, the legislative record was replete with references to lesbians and gay men. See, e.g., 142 Cong. Rec. H7485 (daily ed. July 12, 1996) ("I think Congress should decide whether the domestic spouses of gays and lesbians should get Social Security survivor benefits.") (emphasis added); 142 Cong. Rec. H7495 (daily ed. July 12, 1996) ("Homosexual marriages are not necessary; gays can legally achieve the same legal ends as marriage through draft wills, medical powers of attorney, and contractual agreements.... [A]sking the rest of the country to recognize such marriages . . . is simply asking for special privileges."); 142 Cong. Rec. SI0068 (daily ed. Sept. 9, 1996) ("Homosexuals and lesbians boast that they are close to realizing their goal—legitimizing their behavior."). Presumably, the members of Congress who made these statements knew the class of people they were talking about.3 Windsor Aff. ffl[ 3-14.) Thus, Plaintiff herself makes it clear that she did not really have any "choice" about her sexual orientation. 3 Similarly, the Supreme Court's decisions in both Lawrence and Romer reflect the common-sense understanding that there is an identifiable class of gay people who are harmed by discrimination. Lawrence v. Texas, 539 U.S. 558, 575 (2003) ("When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.") (emphasis added); Romer v. Evans, 517 U.S. 620, 624 (1996) ("Amendment 2, in explicit terms, does more than repeal or rescind these provisions. It prohibits all legislative, executive or judicial action at any level of state Case 1:10-cv-08435-BSJ -JCF Document 81 Filed 09/15/11 Page 11 of 38 In fact, BLAG's claim that there is no identifiable class of lesbians or gay men is inconsistent with BLAG's own position in this case. To illustrate, at the very same time that it questions the existence of a "class" of lesbians and gay men, BLAG also argues that "[g]ays and lesbians have wielded considerable power in corporate America." (BLAG Opp. Br. at 14.) It goes without saying that it would be strange for a group without any identifiable or clear identity to have the kind of political power and influence that BLAG attributes to gay men and lesbians. More fundamentally, however, it is important to remember who and what this case is really about—Edie Windsor and her marriage to Thea Spyer. Given the sacrifices that she and her late spouse, Thea Spyer, made and the life they built together while facing social pressures and prejudices that few who grew up in recent generations can imagine, to tell Edie Windsor that there is no such thing as being gay or lesbian is, in a word, absurd. Second, BLAG argues in its opposition papers that the discrimination faced by lesbians and gay men lasted for only a relatively short period of time, that things are getting better, and therefore, this discrimination really isn't very significant for constitutional purposes. (BLAG Opp. Br. at 8-9.) Again, as discussed in greater detail below, it simply defies common sense, not to mention the extensive evidentiary record put forth by Plaintiffs experts, to suggest that the record of discrimination against lesbians and gay men in this country is anything other than historical fact. Plaintiffs own life experience again provides stark corroboration. While working as a graduate student at NYU in the 1950's, Edie Windsor was terrified when she was called in by the FBI for an interview to get the security clearance required for her or local government designed to protect the named class, a class we shall refer to as homosexual persons or gays and lesbians..") (emphasis added). Case 1:10-cv-08435-BSJ -JCF Document 81 Filed 09/15/11 Page 12 of 38 job working on NYU's Univac computer. Why? Because she was worried that the FBI was "on to" the fact that she was a lesbian and that she would lose her job as a result. (Suppl. Windsor Aff. fflf 17-23.) Later, when Edie went to work as one of the first software programmers at IBM after receiving her Master's Degree in mathematics, lesbians were prohibited by federal law from working at IBM because it had contracts with the federal government. (See Chauncey Dep. 39:23^-1:9, Kaplan Decl. Ex. A.) So at the very time that Edie was building a distinguished career at IBM, she was technically forbidden by federal law from working there in the first place. As for the contention that discrimination is not as bad today as it was back then, that argument is simply not relevant for purposes of heightened scrutiny. If it were, then laws discriminating against African-Americans and women would receive only rational basis review, since discrimination against these groups has abated (though not disappeared) over time. Moreover, even BLAG does not dispute that discrimination against gay men and lesbians continues today. (BLAG Opp. Br. at 8-9.) The very law at issue in this case (DOMA) is in fact a concrete manifestation of such discrimination; BLAG has conceded in its written discovery responses that if Plaintiff had been married to a man, Thea Spyer's estate would not have been liable for federal estate tax at all. (Am. Response to Plaintiffs First Request for Admission, dated Aug. 2, 2011.) Third and finally, BLAG's argument that Edie and Thea were not validly married for purposes of New York law can and should be dismissed at the outset since BLAG misrepresents the relevant case law. (BLAG Opp. Br. at 24—25.) The New York Court of Appeals' decision in Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006), did not, as BLAG contends, stand for the proposition that out-of-state marriage between same sex couples are not recognized in New York. It held that New York's prior law, limiting marriages performed under New York law to one man and one woman, did not violate 5 Case 1:10-cv-08435-BSJ -JCF Document 81 Filed 09/15/11 Page 13 of 38 the New York State constitution. Id. at 8. In New York, however, the longstanding rule is that an out-of-state marriage is valid in New York unless the marriage is "abhorrent" to New York public policy; and marriages between same-sex couples clearly did not fall within this narrowly circumscribed exception. See In re Estate ofRanftle, 917 N.Y.S.2d 195, 196-97 (1st Dep't 2011); Martinez v. Cnty. of Monroe, 850 N.Y.S.2d 740, 743 (4th Dep't 2008); see also In re May's Estate, 114 N.E.2d 4, 7 (N.Y. 1953). As a result, every appellate court in New York to address the issue has held that valid out-of-state marriages between same-sex couples are recognized in New York. See Ranftle, 917 N.Y.S.2d at 196-97; Lewis v. N.Y. State Dep't of Civil Serv., 872 N.Y.S.2d 578, 581-85 (3d Dep't 2009), aff'd on other grounds sub nom Godfrey v. Spano, 920 N.E.2d 328 (N.Y. 2009); Martinez, 850 N.Y.S.2d at 743. Thus, as the State of New York itself has explained in its amicus brief in this case: "New York has long recognized as valid same-sex marriages that were solemnized under the laws of other States or nations, such as Plaintiff Edith Windsor's Canadian marriage to Thea Spyer." (Br. of State of New York as Amicus Curaie, dated July 27, 2011, at 1-3.) ARGUMENT I. BLAG'S OPPOSITION TO PLAINTIFF'S SUMMARY JUDGMENT MOTION IS PROCEDURALLY UNSOUND As its central position, BLAG asserts that Plaintiffs motion for summary judgment should be denied because, in its view, there is a rational basis for the discrimination at the heart of DOMA, and a rational basis is supposedly all that the law requires. Plaintiff has responded to those arguments in her opposition to BLAG's motion to dismiss, and does so below as well. Case 1:10-cv-08435-BSJ -JCF Document 81 Filed 09/15/11 Page 14 of 38 But, as noted in Plaintiffs opposition to BLAG's motion to dismiss (Opp. to MTD Br. at 6), whether or not heightened scrutiny or rational basis review applies depends in part on a series of factual, not merely legal, questions. BLAG opposes Plaintiffs motion for summary judgment by pointing to untested, hearsay documents in an effort to disprove factual contentions relating both to some of the heightened scrutiny factors (history of discrimination, immutability) as well to as the purported justifications for the discrimination effected by DOMA (the science on parenting by gay people). As the Court is aware, summary judgment is appropriate where, as here, the moving party can establish "that there is no genuine dispute as to any material fact and [the moving party] is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, All U.S. 317, 322-23 (1986). Once that showing is made, the burden shifts to the other party (here, BLAG) to demonstrate the existence of "any genuine issues of material fact" thereby justifying the need for a trial. Celotex Corp., All U.S. at 322. Typically, the type of information that would "support" such a showing that a statement of fact "is genuinely disputed" includes citations to materials in the record such as "depositions, documents[,] affidavits[,] admissions, [or] interrogatory answers . . . ." Fed. R. Civ. P. 56(c)(1)(A). That is exactly what Plaintiff has done here. As set forth in Plaintiffs moving brief, and as discussed below, Plaintiff has submitted two affidavits from herself, as well as affidavits from five renowned experts in fields ranging from American history to child psychology to political science. Certainly, on the question of whether some form of heightened scrutiny should apply, BLAG cannot possibly meet its burden of demonstrating an actual factual dispute about whether there is a history of discrimination against gay men and lesbians, whether being gay or lesbian has anything to do with an individual's ability to contribute to society, or whether one "chooses" to be gay. And Case 1:10-cv-08435-BSJ -JCF Document 81 Filed 09/15/11 Page 15 of 38 while BLAG argues that sexual orientation is not immutable, Plaintiff has submitted a sworn declaration from the author of two of the four articles cited by BLAG in support of that contention, Professor Lisa Diamond, condemning their misuse of her research and stating unequivocally that "[i]f the question is whether gays, lesbians and bisexuals are a group of people with a distinct, immutable characteristic, my scientific answer to that question is yes." (Suppl. Diamond Decl. ^ 10.) Indeed, along with the instant reply memorandum, Plaintiff has submitted supplemental affidavits from Professors Lamb and Peplau responding to BLAG's distortions of the science on gay parenting and immutability. BLAG, by contrast, has offered nothing other than selective citations to materials whose relevance and reliability are questionable at best. Perhaps most significantly, it has not offered a single affidavit from a single witness—whether a member of the House of Representatives or the author of one of the articles it seeks to rely upon—in order to make the required showing that there is a genuine issue of disputed fact in this case. Thus, given the absence of admissible documents or any witnesses on its side of the case, BLAG would have no evidence to introduce at trial even if summary judgment were denied. Once the Court concludes that heightened scrutiny does apply, BLAG's purported "dispute" about the consensus on parenting by gay people cannot raise a genuine issue of material fact because BLAG does not even attempt to argue that DOMA is narrowly tailored to serve a compelling state interest or substantially related to an important government objective. Moreover, as discussed in Plaintiffs opening brief and her opposition to BLAG's motion to dismiss, DOMA is not even rationally related to any legitimate interest the federal government may allegedly have in "responsible procreation" by straight couples, in ensuring that children have straight role models, or in Case 1:10-cv-08435-BSJ -JCF Document 81 Filed 09/15/11 Page 16 of 38 encouraging straight couples to get married. In other words, no one could reasonably conclude that excluding married same-sex couples from federal protections will do anything to advance these supposed interests. (PI. Br. at 26-28, 35-36; Opp. to MTD Br. at 26-30.) Indeed, even if BLAG's citations to hearsay articles are acceptable under the "constitutional facts" doctrine, the actual evidentiary responses from Plaintiffs experts to BLAG's mis-cited and mischaracterized hearsay articles demonstrate that those articles fail to create any genuine issue of material fact. See Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005) ("At the summary judgment stage, a nonmoving party must offer some hard evidence showing that its version of the events is not wholly fanciful.") (internal quotations omitted). Thus, even under the "constitutional facts" doctrine and rational basis review, BLAG has failed to demonstrate that there is any genuine issue of disputed material fact, as required by Rule 56. II. THERE IS NO BINDING PRECEDENT IN THE SECOND CIRCUIT AS TO WHETHER HEIGHTENED SCRUTINY SHOULD APPLY The Supreme Court and the Second Circuit have not yet confronted the issue of what level of scrutiny—heightened or rational basis—applies to laws like DOMA that discriminate on the basis of sexual orientation. BLAG argues that this Court should not apply any form of heightened scrutiny because other courts in other circuits have applied the rational basis test to laws discriminating against gay men and lesbians. (BLAG Opp. Br. at 5-7.) BLAG's argument, however, relies entirely on overruled precedent or decisions that do not address the constitutional question presented. First, contrary to BLAG's suggestion, the level of scrutiny that courts should apply to classifications based on sexual orientation is an open question. In Romer v. Evans, 517 U.S. 620 (1996), the Supreme Court held that a state constitutional amendment categorically denying lesbians and gay men antidiscrimination protection 9 Case 1:10-cv-08435-BSJ -JCF Document 81 Filed 09/15/11 Page 17 of 38 violated the Equal Protection Clause of the Fourteenth Amendment by "classifying] homosexuals not to further a proper legislative end but to make them unequal to everyone else." Id. at 635. In holding that the measure at issue "fail[ed], indeed defiefd]," even the rational basis inquiry, the Court avoided the question of what level of scrutiny applied. Id. at 632. Similarly, in Lawrence v. Texas, 539 U.S. 558 (2003), the Supreme Court declared unconstitutional a law that restricted the liberty of lesbians and gay men by criminalizing their sexual relationships under the Due Process Clause of the Fourteenth Amendment, not the Equal Protection Clause, because the statute at issue "further[ed] no legitimate state interest which can justify its intrusion into the personal and private life of the individual." Id. at 578. Lawrence expressly left open any question of equal protection under the Constitution, and certainly did not decide what level of scrutiny applies when the government discriminates against people because of their sexual orientation. Id. at 574-75. The Second Circuit has not decided this issue either. In Able v. United States, 155 F.3d 628 (2d Cir. 1998), the court expressly reserved the question of whether heightened scrutiny applies to sexual orientation classifications. Id. at 632 ("[T]he district court strongly suggested that in reviewing statutes that discriminate on the basis of homosexuality heightened scrutiny would be appropriate. We need not decide this question because at oral argument plaintiffs asserted that they were not seeking any more onerous standard than the rational basis test.") (internal citation omitted). Second, while BLAG points out that several federal courts of appeal have concluded that sexual orientation classifications trigger only rational basis review (BLAG Opp. Br. at 5-6), it fails to mention that none of those decisions actually addresses the suspect classification factors laid out by the Supreme Court. Instead, almost every single one of those cases relied on Bowers v. Hardwick, 478 U.S. 186 (1986), in which the 10 Case 1:10-cv-08435-BSJ -JCF Document 81 Filed 09/15/11 Page 18 of 38 Court held that state laws criminalizing sexual intimacy between gay people did not violate the Due Process Clause of the Fourteenth Amendment. Of course, Bowers was overruled in Lawrence, 539 U.S. at 578, and that simple fact undermines the reasoning and authority of each of BLAG's cases. As explained in Plaintiffs moving brief (PI. Br. at 11-13), the Supreme Court has laid out two primary factors and two supplemental factors that guide its decisions about whether courts should subject government classifications to heightened scrutiny. When courts and commentators first started to apply these suspect classification factors to laws that classify based on sexual orientation back in the early 1980s, they recognized that heightened scrutiny should apply. examining the suspect classification But after Bowers, the courts stopped factors and instead interpreted Bowers as categorically foreclosing gay people from being treated as a suspect or quasi-suspect class even if they would have received such protections under the traditional equal protection analysis. For example, in a sexual orientation equal protection decision after Bowers, the D.C. Circuit reasoned: If the [Bowers'] Court was unwilling to object to state laws that criminalize the behavior that defines the class, it is hardly open to a lower court to conclude that state sponsored discrimination against the class is invidious. After all, there can hardly be more palpable discrimination against a class than making the conduct that defines the class criminal. 4 See, e.g., Rowland v. Mad River Local Sch. Dist., 470 U.S. 1009, 1014 (1985) (Brennan, J., dissenting from denial of certiorari; joined by Marshall, J.) (concluding that sexual orientation classifications should be "subjected to strict, or at least heightened, scrutiny"); John Hart Ely, Democracy & Distrust 162-64 (1980); Laurence H. Tribe, American Constitutional Law 1616 (2d ed.) (1988); Note, The Constitutional Status of Sexual Orientation: Homosexuality as a Suspect Classification, 98 Harv. L. Rev. 1285 (1985). 11 Case 1:10-cv-08435-BSJ -JCF Document 81 Filed 09/15/11 Page 19 of 38 Padula v. Webster, 822 F.2d 97, 103 (D.C. Cir. 1987). Other courts quickly followed suit, relying on Bowers.5 Since Bowers "was not correct when it was decided," Lawrence, 539 U.S. at 578, the pre-Zawrerace cases cited by BLAG that relied on Bowers should not be considered persuasive by this Court. As the Attorney General has concluded, many preLawrence decisions rely "on a line of reasoning that does not survive the overruling of Bowers." Letter of Att'y Gen. Holder to Speaker Boehner of the U.S. House of Rep. at 3 (Feb. 23, 2011) [hereinafter Holder Letter]; see also Br. of Defendant United States, dated Aug. 19, 2011, at 6-7. With Bowers out of the way, federal courts are now free to undertake the Supreme Court's equal protection analysis and apply the suspect classification test to sexual orientation classifications. Since Lawrence, however, no federal court of appeals has "engage[d] in an examination of all the factors that the Supreme Court has identified as relevant to a decision about the appropriate level of scrutiny." Holder Letter at 3—4. Instead, when faced with the issue, most courts of appeal have simply adhered to the preLawrence case law and continued to cite cases that relied on Bowers6 Moreover, several 5 See, e.g., Woodward v. United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989); BenShalom v. Marsh, 881 F.2d 454, 464 (7th Cir. 1989); High Tech Gays v. Def Indus. Sec. Clearance Office, 895 F.2d 563, 571 (9th Cir. 1990); Equality Found, of Greater Cincinnati, Inc. v. City of Cincinnati, 54 F.3d 261, 266-68 (6th Cir. 1995); Thomasson v. Perry, 80 F.3d 915, 928 (4th Cir. 1996) (en banc); Richenberg v. Perry, 91 F.3d. 256, 260 (8th Cir. 1996). Many of those circuit court decisions reversed district court rulings that applied the suspect classification test and concluded that heightened scrutiny should apply. See, e.g.. High Tech Gays v. Def. Indus. Sec. Clearance Office, 668 F. Supp. 1361, 1368-70 (N.D. Cal. 1987), rev'd, 895 F.2d 563; Ben-Shalom v. Marsh, 703 F. Supp. 1372, 1379-80 (E.D. Wis. 1989), rev 'd, 881 F.2d 454 (7th Cir. 1989); Equality Found, of Greater Cincinnati v. City of Cincinnati, 860 F. Supp. 417, 434-39 (S.D. Ohio 1994), rev'd, 54 F.3d 261 (6th Cir. 1995). 6 See, e.g., Lofton v. Sec 'y of the Dep't of Children & Family Servs., 358 F.3d 804, 818 & n.16 (11th Cir. 2004); Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004); 12 Case 1:10-cv-08435-BSJ -JCF Document 81 Filed 09/15/11 Page 20 of 38 of these erroneous court of appeals decisions are of dubious precedential value because the parties had not submitted briefs on the appropriate standard of scrutiny or otherwise presented the issue to the court.7 A few have improperly concluded that the Supreme Court's decision in Romer decided that rational basis review applies.8 In short, none of the court of appeals decisions on the level of scrutiny relied on by BLAG is binding upon or should be persuasive to this Court. III. DOMA IS SUBJECT TO HEIGHTENED SCRUTINY Laws like DOMA, which treat gay people differently based on their sexual orientation, cannot be presumed to be constitutional, as would occur if rational basis applied,9 but must instead be subject to some form of heightened judicial scrutiny.10 This Scarbrough v. Morgan Cnty Bd. ofEduc, 470 F.3d 250, 261 (6th Cir. 2006); PriceComelison v. Brooks, 524 F.3d 1103, 1113 n.9 (10th Cir. 2008); Witt v. Dep't of Air Force, 527 F.3d 806, 821 (9th Cir. 2008); see generally Arthur S. Leonard, Exorcizing the Ghosts of Bowers v. Hardwick: Uprooting Invalid Precedents, 84 Chi.-Kent L. Rev. 519 (2009). 7 See, e.g., Price-Comelison, 524 F.3d at 1113 n.9 (noting that plaintiff argued in the district court that "lesbians comprise a suspect class, warranting strict scrutiny . . . [but] does not reassert that claim now on appeal"); Witt, 527 F.3d at 823 (Canby, J., dissenting in part) (noting that plaintiff had not argued on appeal that sexual orientation classifications should receive heightened scrutiny). See, e.g., Lofton, 358 F.3d at 818 & n.16 (relying on Holmes v. Cal. Nat'I Guard, 124 F.3d 1126, 1132 (9th Cir. 1997)), and Richenberg, 91 F.3d at 260 n.5, both of which in turn rely on misinterpretations of Romer); Veney v. Wyche, 293 F.3d 726, 732 (4th Cir. 2002) (erroneously relying on Romer). In Cook v. Gates, 528 F.3d 42 (1st Cir. 2008), also relied upon by BLAG, the First Circuit ended its analysis by finding that Romer and Lawrence did not compel the court to apply heightened scrutiny, but never analyzed what level of scrutiny was appropriate. See Nordlinger v. Hahn, 505 U.S. 1, 17-18 (1992). 10 Although BLAG complains that Plaintiff doesn't specify which level of scrutiny applies (BLAG Opp. Br. at 5 n.2), it is Plaintiffs position that strict scrutiny must apply (PI. Br. at 13, 24 n.10). Nevertheless, whether strict or intermediate scrutiny 13 Case 1:10-cv-08435-BSJ -JCF Document 81 Filed 09/15/11 Page 21 of 38 is so because such laws clearly meet all of the relevant criteria that the Supreme Court has set forth for a statute to receive heightened scrutiny by the courts: (1) there is a history of discrimination against the group, (2) on the basis of a characteristic that does not affect the group's "ability to perform or contribute to society," (3) and that is a central part of the group members' identity or is immutable, and (4) the group is a minority with relatively limited political power. See Bowen v. Gilliard, 483 U.S. 587, 602-03 (1987); City of Cleburne v. Cleburne Living Or., 473 U.S. 432, 441^12 (1985). As explained in Plaintiffs moving brief, the first two factors (history of discrimination and ability to contribute to society) are the most significant. See Kerrigan v. Comm 'r of Pub. Health, 957 A.2d 407, 426 (Conn. 2008). A. History of Discrimination BLAG does not contest, nor could it contest, that there is a historical record of discrimination against lesbians and gay men in the United States. BLAG, however, attempts to minimize this history by asserting that it was "relatively short." (BLAG Opp. Br. at 8.) As discussed below, this is neither true nor relevant. As Plaintiffs expert, Yale historian George Chauncey, has explained, the first American laws against sexual relations between persons of the same sex were enacted in the early colonial period. (See Chauncey Aff. ^ | 17-19.) At various times in the United States, discriminatory laws barred lesbians and gay men, for example, from working in civilian or military positions for the federal government, from entering the country, or from securing citizenship. (Id. Tfl) 43-47; see also Br. of Defendant United States, dated Aug. 19, 2011, at 8-11.) Indeed, in her supplemental affidavit, Edie Windsor recalls that she was terrified in 1955 that the FBI would inquire into her sexual applies is of relatively little import here because whatever the level of scrutiny, BLAG's purported justifications for DOMA clearly fail. 14 Case 1:10-cv-08435-BSJ -JCF Document 81 Filed 09/15/11 Page 22 of 38 orientation and deny her the government security clearance she needed for her job at NYU. (See Suppl. Windsor Aff. Tfl] 17-23.) Lesbian and gay parents who were open about their sexual orientation risked losing their children. (See Chauncey Aff. ^ffl 81-86.) Sadly, many aspects of this history of discrimination continue today. As BLAG admits, lesbians and gay men in the United States have been and continue to be subjected to violence because of their sexual orientation. (BLAG Response to Windsor's Request for Admission #6; see also Chavmcey Aff. H 96.) BLAG tries to muddy the waters by taking statements from Professor Chauncey out of context. (BLAG Opp. Br. at 8.) For example, BLAG misleadingly asserts that according "to Dr. Chauncey, 'all of the [discrimination] was put in place between the 1920s and 1950s, and most were dismantled between the 1960s and the 1990s.'" (Id.) BLAG, however, fails to disclose that when Professor Chauncey was asked about this point during his deposition, he explained quite clearly that this period was not the first time that the government began to discriminate, but the first time it began to do so against gay men and lesbians based on their status as gay men and lesbians: [A]s I have tried to say, the category of homosexual or heterosexual, gay . . . or straight. . . didn't exist in the same way before, so there was certainly a long history of hostility to the behavior that would come to be identified with and seen as characteristic of the people that would come to be known as homosexuals or gay people. . . . But . . . it was in the 20th century that the government began to classify and discriminate against certain of its citizens on the basis of their status as homosexuals. Again, that drew on a longer history of vilification but it took a distinctive form in the 20th century. (Chauncey Dep. 53:11-25, Kaplan Decl. Ex. A.) BLAG also fails to mention that contrary to BLAG's assertion, at other points during his deposition in this case, Professor Chauncey was quite clear that 15 Case 1:10-cv-08435-BSJ -JCF Document 81 Filed 09/15/11 Page 23 of 38 discrimination against gay people continued well past the 1950s. For example, in addition to mentioning the passage of Amendment 2 in Colorado in 1992 (which of course led to the Supreme Court's Romer decision) (Chauncey Dep. 25:8-26:6, Kaplan Decl. Ex. A), Professor Chauncey observed: I think that in the case of gay and lesbian Americans, we have seen in the last decade really just an extraordinary degree to which their basic rights have been subject to the vicissitudes of public opinion, with — since the seventies, a large number of cases in which their civil rights have been put to the vote in popular referenda and, something like in three quarters of the cases have been taken away . . . It is hard to think of many other groups that have been subject to the vicissitudes of public opinion in quite that way. (Id. at 29:14-30:5, Kaplan Decl. Ex. A.) In any event, it makes no sense to assert, as BLAG does, that the discrimination that even BLAG concedes occurred is insufficient to warrant heightened scrutiny. The history of discrimination prong of the suspect classification test requires only that the characteristic has been used to discriminate invidiously in the past, not that it has been used to discriminate since the beginning of recorded time. The undisputed record of discrimination against lesbians and gay men here is clearly more than enough.1' B. Sexual Orientation Has No Impact on an Individual's Ability to Contribute to Society BLAG does not contend that a person's sexual orientation affects his or her ability to contribute to society and thus concedes the second of the two essential factors of the heightened scrutiny analysis. Instead, it argues that "[t]he Congress that 1 ' BLAG suggests that recent repeal of some government policies discriminating against lesbians and gay men indicates that sexual orientation classifications should not be considered suspect. (BLAG Opp. Br. at 8-9.) This argument proves too much, since racial minorities and women had achieved far greater legislative victories by the time that courts began considering racial and sex classifications suspect. (PI. Br. at 2 1 22.) 16 Case 1:10-cv-08435-BSJ -JCF Document 81 Filed 09/15/11 Page 24 of 38 enacted DOMA and the President who signed it obviously thought that the classifications drawn by DOMA were relevant and rationally related to several legitimate legislative goals." (BLAG Opp. Br. at 9.) For purposes of the second prong of the heightened scrutiny test, this statement is simply a non-sequitur; it does not address whether being gay or straight affects a person's ability to contribute to society. In other words, if a congressional belief that a classification was "relevant" or "rational" were enough to preclude heightened scrutiny, then the supportive opinions of the Congresses that passed (and the Presidents that signed) racial segregation laws would instantly and forever have immunized such laws from constitutional review. The undisputed evidence in this case demonstrates that "[b]eing gay or lesbian has no inherent association with a person's ability to participate in or contribute to society" (Peplau Aff. ^ 29), and BLAG has offered nothing whatsoever to rebut this obvious fact. C. Sexual Orientation Is Immutable and Is a Core Part of Individual Identity Because the two factors discussed above are satisfied, a law like DOMA that singles people out based on their sexual orientation should be subject to heightened scrutiny. See, e.g., Mass Bd. of Retirement v. Murgia, All U.S. 307, 313 (1976); United States v. Virginia, 518 U.S. 515, 532-33 (1996). The immutability of sexual orientation and its centrality to a person's identity, however, reinforce the need for heightened scrutiny here, and BLAG's arguments to the contrary lack merit. (See Br. of Defendant United States, dated Aug. 19, 2011, at 16-17.) First, as noted above, BLAG argues that the concept of immutable sexual orientation "runs headlong into the differing definitions of the terms 'sexual orientation,' 'homosexual,' 'gay,' and 'lesbian,'" as if citing to various definitions of these words 17 Case 1:10-cv-08435-BSJ -JCF Document 81 Filed 09/15/11 Page 25 of 38 somehow contradicts the fact that the underlying characteristics those terms describe are immutable or constitute a core part of an individual's identity. (See BLAG Opp. Br. at 10.) As discussed above, whatever variations there may be in the precise definitions of these terms, BLAG's argument that they "do not adequately describe a particular class" is disingenuous (see id. at 11)—Congress itself has passed legislation specifically targeting lesbians and gay men; it cannot claim now that this class of people does not exist. BLAG also selectively cites excerpts from four articles establishing, according to BLAG, that many people experience changes in their sexual orientation or "choose" to be gay or lesbian. These articles do not support the proposition BLAG advances. First and foremost, two of the four articles cited by BLAG simply cannot be relied upon at all for the propositions advanced. This is so because the author of these articles has now submitted an affidavit in this case stating in no uncertain terms that "BLAG misconstrues my research findings, which do not support the propositions for which BLAG cites them." (Diamond Suppl. Decl. U S.)12 Moreover, the third article BLAG cites, for the proposition that about 12% of gay men and 32% of lesbians reported experiencing at least a small amount of choice in their sexuality, was discussed at the deposition of one of Plaintiff s experts, Professor Letitia Anne Peplau of UCLA. 13 When asked about this article on re-direct examination at her deposition, Professor Peplau explained that while it is unclear what participants in 12 See Lisa M. Diamond, New Paradigms for Research on Heterosexual & SexualMinority Development, 32 J. of Clinical Child & Adolescent Psychol. 492 (2003); Lisa M. Diamond & Ritch C. Savin-Williams, Explaining Diversity in the Development of Same-Sex Sexuality Among Young Women, 56 J. of Soc. Issues 301 (2000). 13 Gregory M. Herek et al., Demographic, Psychological, and Social Characteristics of Self-Identified Lesbian, Gay, and Bisexual Adults in a US Probability Sample, 1 Sex. Res. Soc. Pol'y 176 (2010). Case 1:10-cv-08435-BSJ -JCF Document 81 Filed 09/15/11 Page 26 of 38 the study who reported having some "choice" about their sexual orientation meant, rather than saying that they "chose" to be gay, it was more likely they meant "that they recognize that they had same sex romantic sexual attractions and then they chose rather than denying or suppressing those attractions [. . .] to act upon them by, for example, forming a same sex relationship." (Peplau Dep. 101:2-18, Kaplan Decl. Ex. B.) Moreover, Professor Peplau has now submitted her own supplemental affidavit in which she testifies that having reviewed all four of the articles BLAG cites in its attempt to argue that sexual orientation is not immutable, none of the articles in any way change her opinions that "sexual orientation refers to an enduring pattern of emotional, romantic, and/or sexual attractions to men, women, or both sexes; that sexual orientation is a multi-faceted phenomenon involving attractions, related behaviors, and identity; that most adults are attracted to and form relationships with members of only one sex; and that the significant majority of adults exhibit a consistent and enduring sexual orientation." (Suppl. Peplau Aff. ^ 5) (internal quotations omitted). In her supplemental affidavit, Professor Peplau also opines specifically about the fourth article cited by BLAG14 and states that, contrary to BLAG's assertions, it actually "provides further evidence in support of [her] opinions." (Id. ^ 6.) As Professor Peplau explains, "[a]mong the participants in the Dickson study, the overwhelming majority of individuals who reported only opposite sex attraction at age 21 also reported only opposite sex attraction at age 26. Similarly, the vast majority of those who reported major attraction to the same sex at age 21 reported this at age 26 as well. The data show that only 1/2 of 1% of the male participants and 1.3% of the female participants shifted from only opposite sex attraction to major attraction to the same sex or vice versa." (Id.) 14 Nigel Dickson et al., Same-Sex Attraction in a Birth Cohort: Prevalence and Persistence in Early Adulthood, 56 Soc. Sci. & Med. 1607 (2003). 19 Case 1:10-cv-08435-BSJ -JCF Document 81 Filed 09/15/11 Page 27 of 38 As for BLAG's assertion that it is somehow relevant that one (obviously) cannot determine the sexual orientation of a newborn baby (BLAG Opp. Br. at 11), this argument not only sounds like eugenics, but, as Professor Peplau explained at her deposition, the fact that most persons typically come to understand their sexual orientation during adolescence does not mean that they can change their orientation at will. (See Peplau Dep. at 25:18-20, Kaplan Decl. Ex. B.) Finally, the weakness of BLAG's position on immutability is perhaps best demonstrated by its remarkable argument that the fact that Plaintiff was once briefly married to a man demonstrates that sexual orientation is a choice. (BLAG Opp. Br. at 11-12.) It certainly was not a choice for Edie Windsor, who felt strong pressure as a young woman to marry a man in the 1950s, but soon realized, as she explained to her husband, that it was not fair either to herself or to him for them to stay married. (See Suppl. Windsor Aff. ^flj 3-16.) BLAG's suggestion that there is no such thing as lesbians and gay men as a group is absurd enough; to go further and suggest that Plaintiff had a "choice" about being a lesbian because she was once married to a man is insulting.15 15 BLAG's contention that a small portion of people who experience same-sex attractions at one point may not experience them later misses the reason why the immutability of a trait may matter when determining if heightened scrutiny should apply. Age, for example, is not a suspect classification "because all persons, if they live out their normal life spans, will experience it." Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 83 (2000). By contrast, no one would seriously suggest that all (or even most) people will one day experience being gay or lesbian. In any event, a trait need not be an unchangeable biological characteristic to warrant imposition of heightened scrutiny. As explained in Plaintiffs moving brief, people can convert to a different religion, aliens can become naturalized, individuals can change their sex, and some people can "pass" or even modify outward signs of their race or national origin, and yet each of these classifications warrants heightened constitutional scrutiny. (See PI. Br. at 18.) 20 Case 1:10-cv-08435-BSJ -JCF Document 81 D. Filed 09/15/11 Page 28 of 38 Lesbians and Gay Men Lack Political Power Although BLAG does not dispute that lesbians and gay men continue to suffer from discrimination at the hands of the federal, state, and local governments, BLAG nevertheless argues that lesbians and gay men are politically powerful. As support for this argument, BLAG points to discrete successes in certain jurisdictions where lesbians and gay men and their allies have been able to repeal some of the many discriminatory laws or practices targeting gay men and lesbians. (BLAG Opp. Br. at 1220.) While these recent events certainly demonstrate that some people are beginning to understand that discrimination against lesbians and gay men is not acceptable, what they do not demonstrate—contrary to BLAG's contentions—is that lesbians and gay men are so strong politically that they do not require the constitutional protections against a political majority that is often hostile towards them, as DOMA, forty-one state constitutional marriage amendments or statutes, and even the current Republican presidential campaign make overwhelmingly apparent. As a conceptual matter, BLAG's arguments misconstrue the nature of political power, which Plaintiffs expert Professor Segura has explained refers to "a person's or group's demonstrated ability to extract favorable (or prevent unfavorable) policy outcomes from the political system." (Segura Aff. K 13.) In other words, determining whether a group has political power involves looking beyond the existence of particular policy outcomes that a group supports; it also requires an examination of "whether or not the group [itself is] in the position to make that policy outcome happen or if the policy outcome was simply the happenstance of political conditions or a meeting of the minds or an agreement of others who agree with their position." (Segura Dep. 28:2529:17, Kaplan Decl. Ex. C.) As applied here, the fact that like-minded allies have been able to repeal some of the legislative measures that specifically target lesbians and gay 21 Case 1:10-cv-08435-BSJ -JCF Document 81 Filed 09/15/11 Page 29 of 38 men for unequal treatment does not indicate that gays and lesbians have meaningful political power. In fact, one of the nation's two political parties is firmly committed in most respects to opposing any and all measures extending civil rights to gay men and lesbians, and even the most hard-fought gains for gay men and lesbians are repeatedly subject to contention, through ballot initiatives, threat of repeal, or other means. (Id. at 57:23-60:6, 143:2-14, Kaplan Decl. Ex. C; Segura Aff. fflf 35-44, 75-77.) Indeed, BLAG's own brief illustrates the extent to which lesbians and gay men lack political power. For example, while BLAG argues that legislation in four states and the District of Columbia permitting marriage for same-sex couples shows that lesbians and gay men have political power (BLAG Opp. Br. at 18), even BLAG acknowledges that "[u]ndeniably, [. . .] same-sex marriage jurisdictions remain even today a relatively small minority in this country. Forty-one states have constitutional amendments or statutes" affirmatively banning such marriages. (BLAG MTD Br. at 17 and Ex. B.) And although BLAG claims that "pro-homosexual forces" spent more than their opponents did in the campaign over Proposition 8 in California, the end result of course was that voters used the political process to deny gay and lesbian residents a right to which they had previously been entitled. (See BLAG Opp. Br. at 18.) Similarly, BLAG cites a letter from a gay rights group to President Obama asking him to cease defending the constitutionality of DOMA as evidence of the significant political power of lesbians and gay men. (See id. at 13.) But, as Professor Segura explained at his deposition, that letter was written nearly two years prior to the administration's change in policy regarding DOMA, and the President receives thousands of letters a day, including many from large organizations. (Segura Dep. at 166:16- 167:13, Kaplan Decl. Ex. C.) BLAG's position also requires one to assume (cynically) 22 Case 1:10-cv-08435-BSJ -JCF Document 81 Filed 09/15/11 Page 30 of 38 that the President's decision was purely political, and not based on the unconstitutionality of DOMA and the President's recognition of his obligations under the Constitution.16 Likewise, although BLAG emphasizes the recent repeal of "Don't Ask, Don't Tell" as evidence of the significant political power of gay men and lesbians (BLAG Opp. Br. at 14), what BLAG doesn't mention is that the vote only occurred during a "lame-duck" session of Congress, that 191 of the 214 Republicans voting on the measure voted against the repeal (see Segura Aff. ^f 32), and that, among other party leaders, the Republican presidential candidate who won the Iowa straw poll has called for the reinstitution of the ban on gay men and lesbians in the military if she is elected President. Sheryl Gay Stolberg, For Bachmann, Gay Rights Stand Reflects Mix of Issues and Faith, N.Y. Times at Al (July 17, 2011). In fact, both of the two currently leading Republican presidential candidates have signed a pledge committing them to support a ban on equal marriage rights for same-sex couples. See Will Weissert, Perry Signs Pledge on Anti-Gay Marriage Amendment, Associated Press (Aug. 26, 2011). These are hardly the indicia of a group that has any significant degree of political power. The fact that government-sanctioned discrimination against lesbians and gay men may be less extensive today than it was in the past in no way undermines the need for heightened scrutiny to apply to such discrimination. As Plaintiff established in her opening brief, when the courts recognized that racial and gender classifications require heightened scrutiny, African-Americans and women had achieved substantially greater legal protections through the political system than lesbians and gay men have today. BLAG has no response to this other than to note differences in the numerical size 16 Indeed, given the role of BLAG, a subdivision of the United States House of Representatives, in this case, it is hard for Plaintiff, now 82 years old, to credit its prediction (if that's what it is) that DOMA will be repealed "soon" as a result of the political process. (BLAG Opp. Br. at 9.) 23 Case 1:10-cv-08435-BSJ -JCF Document 81 Filed 09/15/11 Page 31 of 38 between African-Americans and women on the one hand, and the total population of lesbians and gay men in the United States, on the other. (See BLAG Opp. Br. at 20.) But if anything, this argument cuts the other way—that lesbians and gay men are less numerous than African-Americans and women can speak only to their relative lack of political power and illustrates why lesbians and gay men require greater constitutional protection against discrimination from a political majority that vastly outnumbers them.17 IV. BLAG MISSTATES THE SCIENTIFIC CONSENSUS CONCERNING GAY PARENTS BLAG does not explain anywhere in its briefing how DOMA would satisfy the standards required by heightened scrutiny—i.e., that DOMA is narrowly tailored to serve a compelling state interest (applying strict scrutiny) or is substantially related to an important government objective (applying intermediate scrutiny).18 See Tuan Anh Nguyen v. INS, 533 U.S. 53, 75 (2001) ("[U]nder heightened scrutiny, 'the burden of justification is demanding and it rests entirely on the party defending the 17 Again, BLAG has no response to Plaintiffs argument that a complete lack of political power is not a prerequisite to a group receiving heightened scrutiny. See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 235 (1995) (holding that all racial classifications are subject to strict scrutiny, although some racial groups hold substantial political power). 18 In a footnote, BLAG argues that DOMA's discrimination against Plaintiff and other married same-sex couples can be justified under heightened scrutiny "because it reflects and reinforces the Supreme Court's own definition of a fundamental right." BLAG Opp. Br. at 20 n.34. While it is not entirely clear what BLAG means by this, if the reference is to the Supreme Court's summary affirmance in Baker v. Nelson, 409 U.S. 810 (1972), BLAG is incorrect to suggest that the substantive due process inquiry controls the outcome under equal protection. See, e.g., Lawrence, 539 U.S. at 574-75 (noting difference between equal protection and due process inquiries). Unlike due process analysis, which focuses in part on whether a particular right is part of history and tradition, equal protection analysis looks to history, if at all, only when that history suggests that courts should apply a higher level of scrutiny and be less deferential to the state's decision to discriminate. 24 Case 1:10-cv-08435-BSJ -JCF Document 81 Filed 09/15/11 Page 32 of 38 classification.'") (quoting Virginia, 518 U.S. at 533); see also Br. of Defendant United States, dated Aug. 19, 2011, at 22-27. BLAG does, however, include in its opposition brief a two-page section arguing that "the studies comparing gay or lesbian parents to heterosexual parents have serious flaws." (BLAG Opp. Br. at 23.) Once again, BLAG's argument is both irrelevant and wrong. As an initial matter, while claiming that the science on same-sex parents has "serious flaws" (id.), BLAG does not challenge, on Daubert or any other grounds, the expert opinion of Professor Lamb that "children and adolescents raised by same-sex parents are as likely to be well-adjusted as children raised by heterosexual parents." (Lamb Aff. 1 12.) See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). Nor has BLAG offered the testimony of any expert or even lay witness to call into doubt Professor Lamb's opinion. BLAG simply has not offered any evidence, much less competent evidence, that would contradict Professor Lamb's opinion. More fundamentally, BLAG nowhere connects its bald claim that the gay parenting research is flawed—or even its "between-the-lines" insinuation that gays and lesbians are not as capable as heterosexual parents—to its burden on this motion to demonstrate that DOMA's discrimination is substantially or narrowly tailored to meet a compelling or important interest. As set forth in Plaintiffs opening brief, as a matter of logic, DOMA's exclusion of married same-sex couples from the benefits and burdens afforded to straight couples does not encourage straight couples either to marry or "responsibly procreate"—two of the stated rationales for DOMA (and again, when heightened scrutiny is applied, it is only Congress' stated rationales that matter). All that DOMA does is harm children's interests by "preventfing] children of same-sex couples from enjoying the immeasurable advantages that flow from the assurances of a stable 25 Case 1:10-cv-08435-BSJ -JCF Document 81 Filed 09/15/11 Page 33 of 38 family structure when afforded equal recognition under federal law." Gill v. Office of Pers. Mgmt, 699 F. Supp. 2d 374, 389 (D. Mass. 2010) (internal quotation marks omitted). This justification, therefore, cannot satisfy heightened (or, indeed, even rational basis) scrutiny. In any event, BLAG's suggestion (made on the basis of non-scientific articles and a few excerpts from studies taken out of context) that the scientific research does not support Dr. Lamb's expert opinion is obviously misguided. Dr. Lamb is a highly-regarded expert in child development and is the Head of the Division of Social and Developmental Psychology at the University of Cambridge in England. He has studied children's development and adjustment for thirty-five years and is the author of more than five hundred academic publications. His expert report is based not only on his vast experience and individual research, but on an analysis of the decades of scientific research and literature in the area of children's adjustment, including the over one hundred publications cited in his expert report, which confirm that children raised by lesbian or gay parents are just as well adjusted as those of heterosexual parents. (See Lamb Dep. at 31:25-32:4, Kaplan Decl. Ex. D ("The studies show . . . that there is no difference in children's adjustment depending upon the sexual orientation of their parents.").) BLAG's assertions to the contrary fall apart upon even minimal inspection. As Professor Lamb explained at his deposition and reiterates in his supplemental affidavit, the sentences from three academic articles that BLAG read to him at his deposition and quotes in its brief as showing that the scientific research is flawed have been taken out of context and mischaracterized. Specifically, with respect to the statement that there is less research on gay male parents than lesbian parents (BLAG Br. at 23), Professor Lamb explained that "there is sufficient, indeed overwhelming, evidence that the adjustment of children is not affected by their parents' sexual orientation, and the 26 Case 1:10-cv-08435-BSJ -JCF Document 81 Filed 09/15/11 Page 34 of 38 fact that more studies have focused on children raised by lesbians, rather than by gay men, does nothing to undercut that conclusion." (Supp. Lamb Aff. ]f 8.) Similarly, with respect to the statement that there are relatively few studies on outcomes for adolescents. Professor Lamb explained that "although there is less research on adolescents than on younger children, there have been several studies involving adolescents and they have uniformly reported positive outcomes on the part of adolescents raised by gay parents. Further, the correlates of positive adolescent adjustment are the same regardless of the parents' sexual orientation." (Id. at ^ 10.) The third reference cited by BLAG as suggesting a need for further research on same sex couples—an article by Lawrence Kurdek—did not even relate to gay parents at all. Moreover, as Professor Lamb explains, the fact that an academic identifies areas for future research certainly does not suggest that the existing science is somehow unreliable. (Id. at fl[ 11-12.) Apart from these three articles, the meaning of which BLAG patently misconstrues, BLAG cites only a decision by the United States Court of Appeals for the Eleventh Circuit and two articles, one by Anne Hulbert, a former book editor at Slate.com, and one by George Dent, a law professor, as support for its claim that "[n]umerous studies have pointed to methodological flaws in those studies comparing heterosexual and homosexual parents." (BLAG Br. at 24.) Plainly, these references lack any scientific merit. Neither Hulbert nor Dent has any professional expertise in child development; their articles were not published in peer-reviewed scientific journals; and any views expressed in their articles are non-scientific and fundamentally unreliable. (Supp. Lamb Aff. ^ 15.)19 As for the Eleventh Circuit's opinion, as Professor Lamb 19 Aside from the fact that its assertions are baseless, unfortunately, Dent's article is so laden with inflammatory statements of stereotype that it is probably not an exaggeration to say that it reads as if it could have been written about Jews in France or Germany in the late nineteenth century. He asserts, for example, that homosexuals 27 Case 1:10-cv-08435-BSJ -JCF Document 81 Filed 09/15/11 Page 35 of 38 explains, "[c]ontrary to the conclusion of the Lofton court, the research on gay parent families is a robust body of research that meets the rigorous methodological standards demanded for publication in the leading academic journals. There is simply no basis on which to dismiss this body of research as invalid or unreliable due to methodological deficiencies." (Id. atK 17.)20 Put simply, "the scientific research on gay parent families is robust, meets accepted rigorous standards for research in the field, and supports the central conclusion provided in [Professor Lamb's] affidavit . . . that children with gay and lesbian parents are just as likely to be well-adjusted as those with heterosexual parents." (Id. at ^1 6.) In short, merely taking unsupported potshots at Plaintiffs expert's testimony, as BLAG has done, is not sufficient to show that there is a genuine issue of disputed fact with respect to the scientific consensus on gay and lesbian parenting. See Jeffreys, 426 F.3d at 554 ("To defeat summary judgment [...] nonmoving parties must do more than simply show that there is some metaphysical doubt as to the material facts, and they may not rely on have "high rates of disease," that their relationships "are often abusive," and that "artificial reproduction should be permitted only to traditional married couples." George W. Dent, No Difference?: An Analysis of Same-Sex Parenting, 10 Ave Maria L. Rev. _ at **11, 12-13, 24 (forthcoming 2011). In the other article written by Dent and relied upon by BLAG (see, e.g., BLAG 56.1 Statement f 47), Dent argues that marriage for same-sex couples is analogous to "baby-selling," bestiality, and "child-marriage." George W. Dent, The Defense of Traditional Marriage, 15 J.L. & Pol. 581, 628, 633, 637 (1999). Cf Romer, 512 U.S. at 634 ("[L]aws of the kind now before us raise the inevitable inference that the disadvantage imposed is bom of animosity toward the class of persons affected."). 20 As a matter of fact, there was no scientific evidence about gay parents and their children in the record in Lofton, which was decided on summary judgment. See Lofton v. Kearney, 157 F. Supp. 2d 1372, 1383-84 (S.D. Fla. 2001). Without the benefit of any expert testimony explaining the science, the Eleventh Circuit offered its own interpretation of this body of literature. As Dr. Lamb explains in his supplemental affidavit, however, these judges' characterization of the scientific research does not comport with reality, as recognized by the scientific consensus. (Suppl. Lamb Aff. ^ 16-17.) 28 Case 1:10-cv-08435-BSJ -JCF Document 81 Filed 09/15/11 Page 36 of 38 conclusory allegations or unsubstantiated speculation.") (internal quotations omitted); Trans Sport, Inc. v. Starter Sportswear, Inc., 964 F.2d 186, 188 (2d Cir. 1992) (summary judgment cannot be defeated on the basis of "conjecture or surmise") (internal quotations omitted). V. SECTION THREE OF DOMA IS A UNIQUE DEPARTURE FROM A TRADITION OF FEDERAL DEFERENCE TO STATE DECISIONS ABOUT WHETHER A PERSON IS MARRIED As explained in Plaintiffs moving brief, DOMA is a blatantly discriminatory law that departs from the well-settled federal practice of deferring to the states' determination of whether a person is married. (PI. Br. at 38-39.) See also Elk Grove United Sch. Dist. v. Newdow, 542 U.S. 1, 12 (2004). Indeed, prior to DOMA's enactment in 1996, it was clear that "whether an individual is 'married' is, for purposes of the tax laws, to be determined by the law of the State of the marital domicile." See, e.g., Dunn v. Comm V, 70 T.C. 361, 366 (1978).21 BLAG attempts to deny this unassailable proposition by pointing to three unique circumstances in which the federal government exercised its plenary powers relating to marriage. As Plaintiffs expert, Harvard Professor Nancy Cott has explained, however, these all involved federal involvement in marriage precisely because there was no state able to exercise its jurisdiction under the circumstances: (1) following the Civil War, the Freedman's Bureau regulated marriage in the South for a short period of time during Reconstruction, particularly given the fact that until that time, the just-freed slaves had had no right to marry (Cott Aff. ]f1 75-77; Cott Dep. at 18:2-10, 31:20-25, Kaplan 21 While in certain narrow instances, Congress has limited the sub-set of married individuals who are eligible to receive certain types of federal benefits, see, e.g., Al U.S.C. § 416; 26 U.S.C. § 7703, it has never before redefined marriage comprehensively, as it does through DOMA. 29 Case 1:10-cv-08435-BSJ -JCF Document 81 Filed 09/15/11 Page 37 of 38 Decl. Ex. E); (2) the federal government outlawed bigamy in the Utah Territory prior to the time that Utah became a state (Cott Aff. 1fl[ 78-80; Cott Dep. 32:1-33:7, Kaplan Decl. Ex. E); and (3) similar to exercising its plenary power over the Territories, the federal government regulated marriage in connection with certain Native American populations. (Cott Dep. at 17:19-18:1, Kaplan Decl. Ex. E) Apart from these situations, where the federal government stepped in for absent states, the federal government has always deferred to state decisions about who is married. What BLAG has not explained is what constitutionally permissible purpose is furthered by DOMA's stark exception to that longstanding federal practice here. CONCLUSION For the foregoing reasons, as well as for the reasons set forth in Plaintiffs opening brief, Plaintiff respectfully requests that the Court grant her motion for summary judgment. 30 Case 1:10-cv-08435-BSJ -JCF Document 81 Filed 09/15/11 Page 38 of 38 Dated: New York, New York September 15,2011 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 (212)373-3000 rkaplan@paulweiss.com aehrlich@paulweiss.com - andJames D. Esseks, Esq. Rose A. Saxe, Esq. AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street New York, New York 10004-2400 (212) 549-2500 jesseks@aclu.org rsaxe@aclu.org - andMelissa Goodman, Esq. Alexis Karteron, Esq. Arthur Eisenberg, Esq. NEW YORK CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 19th Floor New York, New York 10004 (212) 607-3300 akarteron@nyclu. org mgoodman@nyclu.org aeisenberg@nyclu.org Attorneys for Plaintiff Edith Schlain Windsor 31 CLE Speaker Biographies Gary Gates, The Williams Distinguished Scholar, Williams Institute Gary J. Gates is co-author of The Gay and Lesbian Atlas. His doctoral dissertation included the first significant research study of the demography of the gay and lesbian population using US Census data. His work on that subject has been featured in many national and international media outlets. He holds a PhD in Public Policy from the Heinz School of Public Policy and Management at Carnegie Mellon University along with a Master of Divinity degree from St. Vincent College and a BS in Computer Science from the University of Pittsburgh at Johnstown. Roberta Kaplan, Partner, Paul, Weiss, Rifkind, Wharton & Garrison LLP Roberta Kaplan A partner in the Litigation Department, Roberta ("Robbie") A. Kaplan has been described in a profile in Lawdragon as a “pressure junkie” who “thrives on looking at the big picture” whether “in the gay-marriage legal fight or high-profile corporate scandals.” Ms. Kaplan was chosen by the National Law Journal as one of the top "40 Under 40" lawyers in the United States, as a New York “Super Lawyer,” and as one of the 500 leading litigators in the United States. Ms. Kaplan has extensive experience representing major corporate clients such as Fitch Ratings, JPMorgan Chase and Citigroup in complex, high-profile matters. In recent years, Ms. Kaplan has been active in matters involving mortgage-backed securities, structured finance transactions, and credit rating opinions. As a result, Ms. Kaplan has developed an expertise dealing with the complex interplay between regulatory investigations, criminal prosecutions, and the onslaught of civil lawsuits that typically follow. Ms. Kaplan also served as lead trial counsel in connection with the case following the bankruptcy of Pacific Gas & Electric Company resulting from the California Energy Crisis in 2001. As for Ms. Kaplan’s pro bono work, Ms. Kaplan filed a lawsuit challenging the inability of same-sex couples to marry in New York and argued that case before the New York Court of Appeals in 2006. Five years later, New York became the largest state in the nation to enact civil marriage for same-sex couples. Ms. Kaplan currently represents Edith Windsor, a widow who had to pay $363,000 in federal estate tax, in a case challenging the constitutionality of the Defense of Marriage Act (“DOMA”), a federal statute that defines marriage as a legal union between one man and one woman. As a result of that case, the U.S. Department of Justice, in a historic decision, announced that it has concluded that heightened scrutiny should apply to laws that discriminate against gay men and lesbians, that Section 3 of DOMA is unconstitutional, and that it would no longer defend the constitutionality of DOMA in court. Ms. Kaplan has published on a variety of legal topics, including the chapter, “Investigating the Case” in Commercial Litigation in New York State Courts, as well as the chapter, “Interplay Between Commercial Litigation and Criminal Proceedings” in the forthcoming Commercial Litigation in the Federal Circuit Courts. While serving as a senior law clerk to Judith S. Kaye, then the Chief Judge of the State of New York, Ms. Kaplan assisted Judge Kaye in connection with a number of articles, including State Courts at the Dawn of a New Century: Common Law Courts Reading Statutes and Constitutions, 70 NYU L Rev 1-35 (April 1995). Ms. Kaplan also clerked for now Chief Judge Mark L. Wolf of the United States District Court for the District of Massachusetts. Ms. Kaplan's legal work has been honored by a number of organizations, including the New York City Council, the New York Civil Liberties Union, and the National Organization for Women. In 2011, she was honored as the distinguished alumna of the year by the Columbia Law School Women’s Association. Ms. Kaplan was chosen by New York Attorney General Eric Schneiderman to serve on his Transition Committee. Ms. Kaplan is a member of the Association of the Bar of the City of New York, the New York State Bar Association and the New York Women’s Bar Association. She is the former Chair of Paul, Weiss’s Women's Initiatives Committee, where she instituted comprehensive changes to the firm's flex-time, mentoring and day care policies. R. Bradley (Brad) Sears, Executive Director, Williams Institute R. Bradley (Brad) Sears is the founding director and current Executive Director of the Williams Institute, and an Adjunct Professor at UCLA School of Law. When the Williams Institute started in 2001, Sears was the only staff member and the Institute had a budget of $100,000 and endowment of $2.5 million. Sears helped to create and develop the Williams Institute’s core programs and strategies. Today, the Institute has 16 faculty and staff members, a budget of over $1.8 million, and an endowment of over $17 million. Sears has published a number of research studies and articles, primarily on discrimination against LGBT people in the workplace and HIV discrimination in health care. At UCLA School of Law, he teaches courses on sexual orientation law, disability law, and U.S. legal and judicial systems. Sears has given hundreds of academic and community presentations on HIV/AIDS and LGBT legal issues. He has testified before Congress and a number of state legislatures, authored amicus briefs in key court cases, helped to draft state and federal legislation, and been cited by a number of media including the New York Times, the Los Angeles Times, National Public Radio, and CNN. Sears graduated summa cum laude from Yale University and magna cum laude from Harvard Law School. During law school, he served as Editor-in-Chief of the Harvard Civil Rights-Civil Liberties Law Review. After law school, he clerked for the Hon J. Spencer Letts of the Central District of California; founded the HIV Legal Checkup Project, a legal services program dedicated to empowering people living with HIV, and served as the Discrimination & Confidentiality Attorney for the HIV/AIDS Legal Services Alliance of Los Angeles (HALSA). Sears has served on the board of directors or advisory boards for Being Alive Los Angeles, HALSA, USC’s AIDS Education Training Center, the Center for Health Justice, and UCLA’s LGBT Studies program. Sears has received Being Alive Los Angeles’ Volunteer of the Year Award and, in 2009, was recognized on Advocate’s Magazine’s “40 Under 40” list. In 2010, under his leadership, the Williams Institute received the “Treasures of Los Angeles” award from the Los Angeles Central City Association

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