Case 1:10-cv-08435-BSJ -JCF Document 9 Filed 02/02/11 Page 1 of 27

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,
v.

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

THE UNITED STATES OF AMERICA, Defendant.
PRELIMINARY STATEMENT

TXREeraax N.Y.
CASHIERS 1

1. This is an action seeking a refund of the estate tax levied on a

married same-sex couple, which would not have applied to a married straight couple,

and which consequently violates the United States Constitution.

2. Edith Schlain Windsor ("Edie") met her late spouse, Thea Clara

Spyer ("Thea"), nearly a half-century ago at a restaurant in New York City. Edie and

Thea went on to spend the rest of Thea's life living together in a loving and committed

relationship in New York.

3. After a wedding engagement that lasted more than forty years,

and a life together that would be the envy of any couple, Thea and Edie were finally

legally married in Toronto, Canada in 2007. Having spent virtually their entire lives

caring for each other in sickness—including Thea's long, brave battle with multiple

sclerosis—and in health, Thea and Edie were able to spend the last two years of Thea's

life together as married.

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4. New York State legally recognizes Edie and Thea's marriage and provided them with the same status, responsibilities, and protections as other married people. However, Edie and Thea were not considered "married" under federal law because of the operation of the statute known (ironically) as the Defense of Marriage Act ("DOMA"), 1 U.S.C. § 7.
5. This clearly unequal treatment of Edie and Thea's marriage both demeans their remarkable commitment to one another and has great practical significance for the sole beneficiary of Thea's estate, Edie. Under the Internal Revenue Code, the transfer of money or property from one spouse to another upon death generally does not trigger any estate tax at all. Because of the operation of DOMA, however, the federal government does not consider Edie and Thea to have been married, and, as a result, more than $350,000 in 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.
6. In other words, the inheritance of the sole beneficiary of Thea's estate—Edie, Thea's surviving spouse—has been significantly reduced by the estate tax, unlike the inheritance of a widow who had been left everything by her deceased husband. Edie, now 81 years old, faces the rest of her life without Thea, with shrunken retirement savings, and with the added insult of the federal government refusing to recognize the validity of her marriage, not to mention her forty-four-year committed relationship.
7. Throughout the history of this country, whenever the federal government has attached protections or responsibilities to marriage, it has always

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deferred to the states' determination of whether a couple is validly married. Since 1 996. the federal government has deviated from that practice, but only for same-sex couples who marry.
8. Accordingly, Edie Windsor, in her capacity as executor of Thea Spyer's estate, now brings this action to recover the federal estate tax that she, as executor, was forced to pay in violation of the Constitutional guarantee of equal protection of the law.
JURISDICTION 9. This action arises under the Constitution of the United States and the laws of the United States, including 26 U.S.C. § 7422. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1346(a)(1).
VENUE 10. Venue is proper in this judicial district under 28 U.S.C. §§ 1391(e)(2), (3) and 1402(a)(1) because plaintiff Edith Schlain Windsor, the executor of Thea Clara Spyer's estate, resides in this judicial district, because Thea Spyer resided in this judicial district, because the estate of Thea Spyer was probated in this judicial district, and because the defendant is the United States of America.
PARTIES 11. Plaintiff Edith Schlain Windsor is a citizen of the United States. She resides in New York County, New York. Plaintiff is the executor of the estate of her late spouse, Thea Clara Spyer. 12. Defendant United States of America is the proper defendant in an action seeking refund of any internal revenue tax pursuant to 26 U.S.C. § 7422(f)(1).

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FACTS 13. Edie and Thea's life stories are in one sense remarkable for the extraordinary times through which they lived, and at the same time quite typical of the lives of gay men and lesbians of their generation, given the pervasive discrimination and homophobia that Edie and Thea encountered on a routine basis. Yet despite obstacles nearly unimaginable today to the generations of gay men and lesbians who followed in their wake, Edie and Thea went on to live lives of great joy, full of dancing, love, and celebration.
Thea Spyer's Background 14. Thea Spyer was bom in Amsterdam, The Netherlands on October 8. 1931. Having lost her mother as an infant, Thea not only knew great sadness, but as a Jew witnessed first-hand the devastation wrought by Nazi Germany. Thea was fortunate enough to be able to flee Amsterdam with her stepmother at the outbreak of the Second World War. thereby escaping the Holocaust. They first went to England, where her father, a Dutch soldier, later joined them just as the Nazi troops were about to invade, and then to the United States, where they built a new life. 15. Thea enrolled at Sarah Lawrence College, but was expelled when a campus security guard saw Thea and another woman kissing. She subsequently enrolled in and received a bachelor's degree from The New School for Social Research. Later, she obtained a master's degree in clinical psychology from the City University of New York and a Ph.D. in clinical psychology from Adelphi University. 16. Upon receiving her doctorate, Thea interned at St. Vincent's Hospital and the Veterans Administration Hospital in New York City. Afterwards, she

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became Director of the Psychiatric Clinic at the International Center for the Disabled and then a Clinical Consultant in Rehabilitation at St. Vincent's Hospital, Westchester. For most of her career, she focused on her private practice as a clinical psychologist.
Edie Windsor's Background 17. Edie was bom on June 20, 1929, in Philadelphia, Pennsylvania. Edie's parents struggled for financial security during the Great Depression, and her family lost its home when she was a child. 18. Edie received a bachelor's degree from Temple University in 1950. 19. In the early 1950s, Edie moved to New York City from Philadelphia. Shortly after arriving in New York, she decided to pursue graduate studies in mathematics. She obtained a master's degree in mathematics from New York University in 1957. Edie then joined International Business Machines Corp. ("IBM"), where she worked for sixteen years in senior technical and management positions related to systems architecture and implementation of operating systems and language processors. During her time at IBM, Edie spent two semesters studying applied mathematics at Harvard University on an IBM fellowship. In May 1968, she attained the title of Senior Systems Programmer, the highest technical position at IBM.
Edie and Thea's Introduction 20. Edie and Thea met in New York City in 1963, at a time when few gays or lesbians publicly identified as such. Lesbians and gay men then faced extensive prejudice, and their relationships were not afforded rights anywhere in the world. Police officers would often shut down bars and restaurants catering to gay men and lesbians, at

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times physically beating and arresting the patrons. The constant threat of disclosure and harassment forced oay neor,le into an underarouiid network, where they could socialize with other gay men and lesbians.
21. Edie and Thea first met at Portofino, a restaurant in Greenwich Village, where it was comfortable for a lesbian clientele to go on Friday evenings. Edie, who was working long hours at her job, decided to call an old friend and ask her to take her "to where the lesbians go." At the restaurant, Edie was introduced to Thea. Although Edie and Thea were each there with other people, they danced together all night. In fact, by the end of the evening, Edie had danced a hole through the bottom of one of her stockings.
22. After that first night dancing together, Edie and Thea occasionally saw each other at parties over the next two years. At these parties, they would start dancing, and their respective dates would stand frustrated on the side of the dance floor with their coats on, waiting for Edie and Thea to separate.
Edie and Thea's Courtship and Engagement 23. Edie and Thea did not forget about each other—that first night made a deep impression on them both. Some two years later, in the late spring of 1965, Edie learned through mutual acquaintances that Thea would be spending Memorial Day weekend on the East End of Long Island. Desperate to see Thea again, Edie asked some friends with a nearby house to let her stay with them for the weekend. After she arrived at the house, Edie declined to go out with her friends that Friday night so she could wait for Thea to arrive.

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24. When her friends returned home later that evening, they told Edie that Thea was delayed at work in New York City and was not expected until the next day. Nervous but excited, Edie reconnected with Thea when she arrived that Saturday afternoon. As it turned out, there was nothing to be nervous about: from that moment on, Edie and Thea were inseparable.
25. When Thea asked Edie that weekend 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." And they did. That weekend marked the start of a committed relationship of mutual love and support that would last for the next forty-four years.
26. Two years later, Thea asked Edie to marry her, even though no state in the United States afforded legal recognition to same-sex couples, much less marriage rights, at that time. Thea feared that if Edie wore an engagement ring to work, her sexual orientation might be disclosed to her colleagues at her job at IBM, so Thea proposed to Edie with a circular diamond pin instead. With this brooch symbolizing their commitment, Edie and Thea began their very long engagement in 1967.
27. Edie and Thea's choice not to wear traditional engagement rings was just one of many ways in which Edie and Thea had to mold their lives to make their relationship invisible. Both women faced pressures not only in the workplace and in society at large, but also from family and friends. It is worth noting that Edie and Thea were engaged two years before the Stonewall riots in June 1969 that led to the birth of the modem gay rights movement in the United States and around the world. Like

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countless other same-sex couples. Edie and Thea engaged in a constant struggle to balance their love tor one another and their desire to live openly and with dignity, on the one hand, with their fear of disapproval and discrimination from others, on the other.
Edie and Thea's Life Together 28. Edie and Thea's relationship blossomed rapidly. They moved in to an apartment in Greenwich Village together six months after getting engaged. 29. In 1968, Edie and Thea bought a small house together on Long Island. It was just big enough for them to shower off the sand from the beach and change into clothes for dancing. In that home, they spent the next forty summers, and it was the site of some of their happiest memories together. 30. During their decades together, Thea and Edie lived a full life. They enjoyed travel and often took trips both in the United States and abroad. Thea and Edie also loved to entertain frequently, and Thea, 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.
Thea's Illness 31. Twelve years into their relationship, Edie and Thea were confronted with what became the most serious challenge of their lives. In 1977, at the age of forty-five, Thea was first 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. 32. Despite the difficulties they faced following the diagnosis, Edie and Thea refused to give up on the life they had built together. Thea reinvented herself

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with each year of her increasing physical disability, working to maintain a life that was active and joyous. Edie committed herself to ensuring that their lives remained full of the passion they had felt when they first met. They even modified their dancing style, with Thea balancing herself on two canes to get to the dance floor and then dropping them to dance to the latest disco hit.
33. Thea's MS caused a gradual, but ever-increasing paralysis. Edie nursed, encouraged and supported Thea as her disability grew ever more severe—first requiring a cane, then crutches, then a manual wheelchair, then a motorized wheelchair that Thea could operate with her remaining usable hand.
34. When Thea could no longer swim, the couple installed special equipment to help Thea enter, exit and float in the pool at their Long Island house so that Thea could exercise and enjoy herself in the water, with Edie's assistance.
35. When Thea started using a wheelchair, they adopted a new style of dancing. Edie would sit on Thea's lap as Thea maneuvered her electric wheelchair across the dance floor.
The Journey Toward Marriage 36. As the years passed, Thea and Edie never gave up on their dream of getting married. In 1993, twenty-eight years into their relationship and sixteen years after Thea's diagnosis, New York City first began recognizing domestic partnerships between same-sex couples. 37. Edie told Thea she wanted them to be one of the first couples to register as domestic partners in New York City. Thea, ever-dedicated to her private practice as a psychologist, told Edie that they would have to wait to register as domestic

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partners because she had appointments with patients all day long. Edie responded, "I have waited more than twenty-eight years for this day. and 1 am not waiting a single day more!" Fortunately, Thea agreed, cleared her schedule for the day, and bought flowers for Edie before they proudly became one of the first couples registered as domestic partners in New York City.
38. Notwithstanding their excitement, both women saw the limited rights and benefits afforded by domestic partnership, although a significant step forward, as no substitute for the institution of marriage.
39. Although they had always hoped to marry in their home state of New York, Thea's worsening condition was a constant and grave reminder that they were running out of time. After celebrating their fortieth anniversary together as a committed couple, they decided they could not wait for the law in New York to finally recognize the reality of their relationship. They decided to seek civil marriage rights where they could get them.
The Marriage 40. With six friends, including one who was a physician, Edie, then seventy-seven, and Thea, then seventy-five, traveled to Toronto, Canada, where they were legally married on May 22, 2007. A copy of their wedding announcement, which was published in the New York Times, is attached as Exhibit A. 41. Wanting to share their journey toward marriage and their love with the world, Edie and Thea agreed to be featured in the documentary film entitled "Edie & Thea: A Very Long Engagement," which chronicled the couple's courtship, engagement and marriage.

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42. Edie and Thea's marriage is recognized as a valid marriage in New York State Sep Waititiez v County <>f Monme, 850 N Y.S.2d 740 (4th Dep't 2008); see also In re May's Estate, 114 N.E.2d 4, 7 (N.Y. 1953); Memorandum from David Nocenti to Agency Counsel (May 14, 2008), http://www.ny.gov/govemor/reports/pdf/Nocenti_memo.pdf (the "Nocenti Memo"); Golden v. Paterson, 877 N.Y.S.2d 822 (N.Y. Sup. Ct. 2008) (rejecting challenge to legality of Nocenti Memo).
43. New York State recognizes marriages of same-sex couples as valid in a multitude of ways. The New York State Department of Civil Service, for example, provides same-sex spouses access to all the benefits available under the New York State Health Insurance Program. See Godfrey v. Spano, 920 N.E.2d 328, 335-37 (N.Y. 2009) (upholding Civil Service Department's non-exclusive policy). The New York State Comptroller recognizes, for retirement benefit purposes, out-of-state marriages between same-sex couples. See Godfrey v. DiNapoli, 866 N.Y.S.2d 844 (N.Y. Sup. Ct. 2008) (upholding State Comptroller's non-exclusive policy). The New York State Insurance Department, in turn, has directed that all insurance companies doing business in New York must extend insurance offered under state policies to samesex spouses on the same terms as to other married couples. Circular Letter No. 27 (Nov. 21, 2008), http://www.ins.state.ny.us/circltr/2008/cl08_27.pdf.
44. And New York courts recognize marriages between same-sex couples performed outside New York, including for purposes of detennining entitlement to spousal health care benefits, Martinez v. County of Monroe, 850 N.Y.S.2d at 743 (holding that New York affords legal recognition to civil marriages that are lawful in

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jurisdiction in which they are entered into, even if such marriage could not be entered into in New York); probating a will. Matter of the Estate of Ran/tie, No. 4585-2008 (N.Y. Sur. Ct. Jan. 26, 2009) (holding that Canadian marriage to another person of same sex "is entitled to recognition in New York"); adoption and protecting parent-child relationships, In re Adoption of Sebastian, 879 N.Y.S.2d 677 (N.Y. Sur. Ct. 2009) (recognizing Dutch marriage between two women and declaring that legal parent-child relationship already exists by operation of law between both women and their child, but nonetheless entering redundant adoption order to ensure portability of parent-child rights in other jurisdictions).
45. Thus, New York considered Thea and Edie as validly married. Thea's Final Years
46. In 2002, Thea was diagnosed with another serious medical condition: aortic stenosis, or a narrowing of the aortic valve of the heart. This condition caused her to suffer a heart attack in 2002. Because of increasing paralysis resulting from her MS, Thea was not willing to undergo the lengthy hospitalization that would have resulted from surgery to fix the valve. The doctors told Edie and Thea that Thea did not have long to live.
47. Thea long outlived her doctors" expectations. She spent the next five years receiving hospice care at home, moving from her apartment in Manhattan to their home on Long Island during the summer, all the time with Edie at her side providing love and support.

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48. Prior to her passing, Thea agonized over the financial burden that

her death would impose on Edie. Thea and Edie engaged m thorough financial planning

to ensure that they would have enough money to live out their days comfortably.

49. During the dramatic collapse of the financial markets in the fall of

2008, however, Thea was understandably panicked over how she and Edie would afford

the high cost of her medical care, which they had to pay out-of-pocket since a significant

portion of the costs were not covered. They also were well aware of the huge lump-sum

payment that Edie would have to make following Thea's death because of the federal

estate tax and the fact that Edie would not benefit from the marital deduction as a result

of DOMA.

50. Although the film documenting Edie and Thea's lives was meant

to focus only on their relationship and marriage, as Thea's illness became increasingly

debilitating, Thea decided that she wanted posterity to see the realities of her MS and

disability. Thea therefore changed her mind and allowed the filmmakers to film Edie

moving her in and out of her bed and the pool using a mechanical lift, as well as Edie

arranging Thea's breathing apparatus as she did each night before Thea went to sleep.

Why was Thea comfortable showing strangers such intimate and potentially

embarrassing details of her illness? Because, as Thea explained, they were making a

documentary and she wanted everyone to know that "s

happens," and that marriage

is about sharing the good times and the bad times with the person you love. And Edie

and Thea did exactly that.

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51. Edie and Thea were able to spend two years as a married couple before Thea succumbed to complications from her heart condition on February 5. 2009 and died.
52. After Thea's passing, in the midst of her mourning, Edie was forced to attend to the financial burdens, including the federal estate tax, that accompanied Thea's death.
Thea's Estate and the Estate Tax 53. Thea's 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. 54. In accordance with Article Third of Thea's Last Will and Testament, her executor is directed to distribute her entire estate to the TCS Revocable Trust created by Thea. 55. In accordance with Article III of the trust agreement creating the TCS Revocable Trust, because Edie survived Thea, the trustees were directed to distribute the remaining trust property, after the payment of taxes and administration expenses, to the trustees of the ESW Revocable Trust created by Edie. Edie is a trustee and sole beneficiary of the ESW Revocable Trust during her life, and she has the power, exercisable by her alone, to invade the trust property and to revoke the trust agreement in its entirety at any time. 56. Because Thea's estate slightly exceeded the applicable exclusion amount set forth in 26 U.S.C. § 2010(c), Thea's estate was subject to federal estate tax.
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57. Under 26 U.S.C. § 2056(a), a decedent's estate is generally entitled to deduct the value of any inrerest in property which passes from the decedent to his or her surviving spouse. Accordingly, property that passes from a decedent to a surviving spouse generally passes free of the federal estate tax.
58. Congress passed this unlimited marital deduction in order 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). 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).
59. 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 their state. Cf, e.g., Eccles v. Comm 'r, 19 T.C. 1049, 1051, 1053-54 (1953) (holding that "[mjarriage, its existence and dissolution, is particularly within the province of the states" and discussing in dicta that were the opposite rule to prevail, "problems of inconsistency with the language of the estate tax 'marital deduction" . . . immediately arise"), aff'dmem., 208 F.2d 796 (4th Cir.); Rev. Rul. 5866, 1958-1 C.B. 60, 60 ("The marital status of individuals as detennined under state law is recognized in the administration of the Federal income tax laws."); Rev. Rul 29, 19531 C.B. 67, 67 (deferring to New York State's recognition of validity of marriage).

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The Defense of Marriage Act 60. Although the estate tax marital deduction applies on its face to all lawfully married couples, same-sex couples alone are denied its benefits by operation of DOMA. 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. 61. Solely because of the operation of DOMA, the Internal Revenue Service ("IRS") has determined that the estate of a decedent whose surviving spouse is a person of the same sex as the decedent is not entitled to the marital deduction under 26 U.S.C. § 2056(a). 62. As a direct result of DOMA's unconstitutional exclusion of samesex spouses from the benefits of the estate tax marital deduction, $363,053.00 in federal estate tax was imposed on Thea's estate. 63. There can be no dispute that if "Thea" were instead "Theo," her estate would have passed for the benefit of Edie tax-free. Solely because Edie and Thea were both women, Thea's estate was denied the marital deduction. 64. In addition to the estate tax burden described above, DOMA has placed other burdens on Edie, including preventing her from being eligible for a Social Security lump-sum death benefit that would be payable to her as a surviving spouse, see 42 U.S.C. § 402(i). and Social Security widow's insurance benefits, see id. § 402(e).
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Edie has applied for these benefits from the Social Security Administration, and if she is denied those benefits based on DOMA, she will move to amend her complaint to add claims that DOMA violates the United States Constitution by preventing recognition of her marriage for purposes of these programs.
65. Despite the sweeping impact of DOMA, the federal government does not have a rational basis for, much less a compelling interest in, enforcing this statute. According to the House of Representatives Report on DOMA, H.R. Rep. No. 104-664 (1996), Congress put forward four rationales for treating an individual married to a person of the same sex differently from an individual married to a person of a different sex. All of them are irrational.
66. First, Congress claimed that DOMA advances the government's interest in defending and nurturing the institution of traditional heterosexual marriage. Id. at 12. This so-called rationale simply restates the government's intent to discriminate against same-sex couples and provides no independent justification for the government's discriminatory action. By failing to recognize Thea and Edie's marriage, the federal government does nothing to "nurture" the institution of marriage; rather, it minimizes and denigrates a loving, committed relationship that should serve as a model for all couples, whether homosexual or heterosexual.
67. Like the first rationale, Congress's second justification for DOMA, advancing the government's interest in defending traditional notions of morality, id. at 15, is yet another form of discrimination cloaked in the rhetoric of government interest. Discrimination for its own sake is not a legitimate government interest.
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68. Congress claimed, as its third rationale, that DOMA advances the government's interest in protecting state sovereignty and democratic self-governance. Id. at 16. Yet DOMA hinders rather than protects state sovereignty, because it refuses to respect state sovereign decisions regarding what marriages to recognize. Before the passage of DOMA, states such as New York determined the marital status of their citizens, and the federal government deferred to a state's determination of marriage in the application of federal law. DOMA, rather than enhancing state sovereignty, actually diminishes states' autonomy.
69. The federal government's final rationale for enacting DOMA is that the law advances the government's interest in preserving scarce government resources. Id. at 18. However, according to the Congressional Budget Office, the recognition of the marriages of same-sex couples will increase annual net federal revenue rather than deplete "scarce government resources." Cong. Budget Office, 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.
PROCEDURAL HISTORY AND STANDING 70. Thea Spyer died on February 5, 2009. 71. Edie, in her capacity as executor of Thea's estate, filed an Application for Extension of Time to File a Return and/or Pay U.S. Estate (and Generation-Skipping Transfer) Taxes (Form 4768) with the IRS on October 28, 2009. 72. On November 5. 2009, Edie, in her capacity as executor of Thea's estate, made an advance payment of the estate's federal estate tax to the U.S. Treasury in the amount of $520,000.00.

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73. On January 28, 2010, Edie, in her capacity as executor of Thea's estate, filed a United States Estate (and Generation-Skipping Transfer) Tax Return (Form 706) with the IRS, which showed that $363,053.00 was due in federal estate tax, $156,947.00 less than the advance payment made in November 2009.
74. Schedule M (Bequests, etc., to Surviving Spouse) of the estate's United States Estate (and Generation-Skipping Transfer) Tax Return explained that, although the decedent was married at the time of her death and the decedent's entire estate passed for the benefit of her surviving spouse, the estate was not claiming the marital deduction authorized by 26 U.S.C. § 2056(a) because of the operation of DOMA.
75. In March, 2010, the U.S. Treasury issued a refund to the estate in the amount of $156,947.00, representing the overpayment of federal estate tax by the estate in November 2009.
76. For federal tax purposes, an individual is married if she or he is married under local law. See Rev. Rul. 58-66, 1958-1 C.B. 60 (recognizing common law marriages for tax purposes). Consistent with this authority, Edie, in her capacity as executor of Thea's estate, filed a Claim for Refund and Request for Abatement (Form 843) and a Disclosure Statement (Form 8275) with the IRS on April 7, 2010, stating that Edie and Thea were lawfully married in Toronto, that New York State recognizes that marriage under local law, that DOMA unconstitutionally discriminates on the basis of sexual orientation, and, as a result, that Thea's estate is entitled to the marital deduction and to a refund in the amount of $363,053.00. In the Disclosure Statement, Edie, in her capacity as executor of Thea's estate, explained that DOMA is unconstitutional.
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77. On May 26, 2010, the IRS notified Edie, in her capacity as executor of Thea's estate, that it disallowed the estate's claim for a refund on the grounds that "[sjince both spouses were women and since under DOMA \ . . the words [sic] "spouse" refers only to a person of the opposite sex who is a husband or a wife'. Section 2056 is inapplicable because the surviving spouse is not a spouse as defined by DOMA."
78. As a result of this disallowance, and solely because of the existence and operation of DOMA, the estate has suffered specific and concrete financial harms. Specifically, the disallowance has forced the executor of Thea's estate to pay $363,053.00 more in federal estate tax than would be paid by the executor of a similarly situated estate of a decedent with a spouse of the opposite sex, thereby reducing the inheritance of the beneficiary of Thea's estate by $363,053.00.
79. Under 26 U.S.C. § 7422(a), "[n]o suit or proceeding shall be maintained in any court for the recovery of any internal revenue tax alleged to have been erroneously or illegally assessed or collected . . . until a claim for refund or credit has been duly filed with the Secretary, according to the provisions of law in that regard, and the regulations of the Secretary established in pursuance thereof." 26 U.S.C. § 7422(a).
80. Under 26 U.S.C. § 6532(a)(1), "[n]o suit or proceeding under section 7422(a) for the recovery of any internal revenue tax, penalty, or other sum, shall be begun before the expiration of 6 months from the date of filing the claim required under such section unless the Secretary renders a decision thereon within that time, nor after the expiration of 2 years from the date of mailing by certified mail or registered
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Case 1:10-cv-08435-BSJ -JCF Document 9 Filed 02/02/11 Page 21 of 27
mail by the Secretary to the taxpayer of a notice of the disallowance of the part of the claim to which the suit or proceeding relates " 26 U.S.C. § 6532(a)(!).
81. As set forth above, the plaintiff has satisfied all of the prerequisites to bring this action required by 26 U.S.C. §§ 7422(a) and 6532(a).
CAUSE OF ACTION 82. The plaintiff realleges and incorporates by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein. 83. This is an action for the recovery of federal estate tax erroneously or illegally assessed and collected. This Court has jurisdiction under 28 U.S.C. §§ 1331 and 1346(a)(1). This action also arises under 26 U.S.C. § 7422. The defendant is the United States of America. 84. As a direct result of DOMA, the federal government treats legally married same-sex couples in New York differently than heterosexual married couples in New York, and because of this disparity in treatment, the estate of Thea Spyer owed, and the executor of the estate paid, $363,053.00 more in federal estate tax than that of a similarly situated heterosexual decedent. Because the federal government defers to New York's determination of who is married for all married couples in New York except married same-sex couples, DOMA discriminates on the basis of sexual orientation. 85. Because DOMA, as applied by the IRS, requires this disparity of treatment with regard to Thea Spyer's estate, it creates a classification that singles out one class of valid marriages—those of same-sex couples—and subjects persons in those marriages to differential treatment compared to other similarly situated couples without
21

Case 1:10-cv-08435-BSJ -JCF Document 9 Filed 02/02/11 Page 22 of 27
justification in violation of the right of equal protection secured by the Fifth Amendment to the Constitution of the United States.
PRAYERS FOR RELIEF WHEREFORE, the plaintiff prays that this Court: 1. Declare DOMA, 1 U.S.C. § 7, unconstitutional as applied to the plaintiff, Edith Schlain Windsor, in her capacity as executor of the estate of Thea Clara Spyer. 2. Enjoin the defendant from continuing to discriminate against the plaintiff by treating the estate of Thea Clara Spyer differently from similarly situated estates of decedents married to persons of the opposite sex. 3. Award the plaintiff judgment in the amount of $363,053.00, plus interest and costs as allowed by law, and such other relief as the Court may deem just, including an award of reasonable litigation costs incurred in this proceeding pursuant to 26 U.S.C. § 7430 and an award of reasonable costs and attorneys' fees pursuant to 28 U.S.C. S2412.
22

Case 1:10-cv-08435-BSJ -JCF Document 9 Filed 02/02/11 Page 23 of 27
4. Grant such other and further relief as the Court may deem
equitable and proper.
Dated: New York, New York February 2, 2011
PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP
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 -
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 aeisenberg@nyclu.org akarteron@nyclu.org
Attorneys for Plaintiff Edith Schlain Windsor, in her capacity as Executor of the Estate of Thea Clara Spyer
2J

Case 1:10-cv-08435-BSJ -JCF Document 9 Filed 02/02/11 Page 24 of 27
EXHIBIT A

Case 1:10-cv-08435-BSJ -JCF Document 9 Filed 02/02/11 Page 25 of 27

HOME PAGE i MY TIMES I TODAVS PAPER ! VIDEO , MOST POPULAR ! TIMES TOPICS }

"•"•|

••

WORLD

mt*

'

'"

U.S. N:Y./REGIOK

Weddings/Celebrations

'•" i

-

"

"''

BUSINESS TECHNOLOGY SCIENCE HEALTH SHORTS OPINION

ARTS

FASHION & STYLE DINING & WINE HOME & GARDEN WEDDINGS/CELEBRATIOI

Thea Spyer and Edith Windsor
Published- May 27 2007
Thea Clara Spyer and Edith Schlain Windsor were married in Toronto on Tuesday. Justice Harvey Brovmstone of the North Toronto Family Court officiated at the Sheraton Gateway Hotel.
Dr. Spyer (above, left) is 75. She is a clinical psychologist with a private practice in Manhattan. She graduated from the New School for Social Research and received a master's degree in clinical psychology from
V. Morawock
City University of New York and a Ph.D. in that subject from Adelphi. Dr. Spyer is the daughter of the late Elisabeth Ketellapper and the late Willem Spyer, who lived in Amsterdam.
Ms. Windsor, 77, who is retired, worked in New York as a computer systems consultant for I.B.M. She was a board member of Social Services and Advocacy for Gay, Lesbian, Bisexual and Transgender Elders, also known as SAGE, from 1985 to 1987 and from 2004 to 2006. She graduated from Temple University and received a master's degree in mathematics from New York University. Ms. Windsor, whose previous marriage ended in divorce, is a daughter of the late Celia and James D. Schlain, who lived in Philadelphia.

Dr. Spyer and Ms. Windsor met in 1965 in New York at Portofino, a restaurant in the West Village.
"Everyone lived in the closet," Ms. Windsor said of lesbian life in New York in the 1960s. "The only place to go was bars, and they were rough."
Adjourning to a friend's apartment that night. Dr. Spyer and Ms. Windsor danced until the impromptu party ended,finally"dancing with our coats on, and other people

Case 1:10-cv-08435-BSJ -JCF Document 9 Filed 02/02/11 Page 26 of 27
standing at the door, annoyed, waiting for us," Ms. Windsor recalled, adding, "She was smarter than hell, beautiful — and sexy." Dr. Spyer recalled of Ms. Windsor that night, "We dancedso much and so intensely that she danced a hole through her stockings." It was not until two years later, during a Memorial Day weekend in the Hamptons, that the two women again encountered each other, and both happened to be uninvolved. "I heard she would be there, and called friends who had a house, and begged them, 'Please can I come out,'" Ms. Windsor said. "Then I waited at a house where I knew she would drop by." Dr. Spyer, who has become a quadriplegic as a result of advanced multiple sclerosis, said of the weekend, and her time spent with Ms. Windsor: "It was a feehng of complete delight in being with her. I had a real sense of I've landed in my life.'" That was 40 years ago. Dr. Spyer had the help of three aides who traveled with her to Canada to officially marry Ms. Windsor, ending an engagement that began in 1967.

Case 1:10-cv-08435-BSJ -JCF Document 9 Filed 02/02/11 Page 27 of 27
AFFIDAVIT OF SERVICE BY FIRST CLASS MAIL STATE OF NEW YORK )
) ss.: COUNTY OF NEW YORK ) AUSTIN K. WILKINSON, being duly sworn, deposes and says:
1. I am not a party to this action, am over 18 years of age and am employed by Paul, Weiss, Rifkind, Wharton & Garrison LLP, 1285 Avenue of the Americas, New York, New York 10019.
2. On February 2, 2011,1 served a true copy of the AMENDED COMPLAINT on the following:
Jean Lin U.S. Department of Justice
Civil Division 20 Massachusetts Ave., N.W., 7th Fl.
Washington, DC 20530 3.1 made such service by personally enclosing a true copy of the aforementioned document in properly addressed prepaid wrapper and depositing it into an official depository under the exclusive custody and care of the United States Postal Service, within the State of New York.

Sworn to before me this t— day of February, 2011
Notary P
ALEX SOUZA Notary Public, State of New York
No. 01S06199477 Qualified in New York County Commission Expires January 12, 2013

Austin K. Wilkinson

 
 Case 1:10-cv-08435-BSJ -JCF Document 93 Filed 06/06/12 Page 1 of 26

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK EDITH SCHLAIN WINDSOR,
Plaintiff,
v.

USDCSDNY DOCUMENT ELECTRONICALLY FILED DOC#: X DATE FI-LED-·-:...,(.p..--+(fo--+-//~l,.-
10 Civ. 8435 (BSJ) Order

THE UNITED STATES OF AMERICA, Defendant.
X

BARBARA S. JONES UNITED STATES DISTRICT JUDGE

This case arises from Plaintiff's constitutional challenge

to section 3 of

Defense Marriage Act ("DOMA"), the

operation which required Plaintiff to pay federal estate tax

on her same-sex spouse's estate, a tax from which similarly

situated heterosexual couples are exempt. Plaintiff claims that

section 3 deprives her of the equal protection of the laws, as

guaranteed by the Fifth Amendment to the Uni

States

Constitution. For the following reasons, Defendant-Intervenor's

motion to dismiss is DENIED and Plaintiff's motion for summary

judgment is GRANTED.

I . BACKGROUND

A. DOMA

DOMA was enacted and signed into law in 1996. The

challenged provision, section 3, defines the terms "marriage"

and "spouse" under federal law. It provides:

Case 1:10-cv-08435-BSJ -JCF Document 93 Filed 06/06/12 Page 2 of 26

In determining the meaning of any Act of Congress, or

any ing, regulation, or interpretation of the

various administrative bureaus and agencies of the

United States, the word '

age' means only a 1 1

union between one man and one woman as husband and

wi , the word 'spouse' refers only to a person of the

opposite sex who is a husband or a wife.

1 u.s.c. § 7.

In large

, DOMA was a reaction to

poss ility that

states would begin to recognize l

ly same-sex marri

Specifical , Congress was spurred to action by a 1993 decision

by the Hawaii Supreme Court, which suggested that same-sex

couples might be entitled to marry. Baehr v. Lewin, 852 P.2d 44

(Haw. 1993) . The House

iary Committee's Report on DOMA

("House Report") discussed Baehr at length, describing it as a

"legal assault . . against traditional heterosexual marriage."

H.R. Rep. No. 104 664, at 3 (1996). The Report noted that, if

homosexuals were permitted to marry, "that development could

have profound practical implicat

for federal law," including

making homosexual couples "el

e

a whole range of

rights and benefits." Id. at 10. A federal def tion of

marriage was seen as necessary ause, the Committee

never before had the

"marriage" (which, at the time,

appeared in 800 sections of federal statutes and

ations) or

"spouse" (appearing more than 3,100 times) meant anything other

than a union between a man and a woman-an implicit assumption

2

Case 1:10-cv-08435-BSJ -JCF Document 93 Filed 06/06/12 Page 3 of 26

upon whi Congress had reli 1n enacti these statutes and

regulations. Id. at 10.

In

tion to this notion of "mak[

explicit what has

always been implicit I II . at 10 1 the House Report justified DOMA as advancing government interests in: "(1) fending and

nurturing the institution of traditional, heterosexual marriage;

(2) defending traditional notions of morality; (3) protecting state sovereignty and democratic self-governance; 1 and (4)

preserving scarce government resources.n Id. at 12.

B. The Parties

In 1963 1 Plaintiff in this action 1 Edie Windsor 1 met her

late spouse[ Thea Spyer 1 in New York City. Shortly thereafter 1

Windsor and Spyer entered

a committed ationship and

lived together in New York. In 1993 1 Windsor and Spyer

registered as domestic

in New York Ci I as soon as

that option became available. In 2007 1 as Spyer 1 S health began

to deteriorate due to her mult e sclerosis and heart

jurisdiction that permitted gays and lesbians to marry. They

were married in Canada t

year.

Spyer died in February 2009. According to her last will

and testament 1 Spyer 1 S estate passed for Windsor 1 S benefit.

1 This interest was not addressed to section 3, therefore the Court does not

consider it. See Mas

v. U.S.

of

Servs. et

al., Nos. 10 2207 & 10 2214, slip op. at 25 (1st Cir. May 31, 2012).

3

Case 1:10-cv-08435-BSJ -JCF Document 93 Filed 06/06/12 Page 4 of 26

Because of

operation of DOMA, Windsor d not qualify

the

imit marital deduction, 26 U.S.C. § 2056(a), and was

red to pay $363,053 in federal estate tax on Spyer's

estate, which Windsor paid in

ity as executor of

estate.

On November 9, 2010, Windsor commenced this

t,

a

refund of the federal estate tax levied on Spyer's estate

a

declaration that section 3 of DOMA violates the Equal Protection

Clause of the Fifth Amendment.

In February 2011, Attorney General Ho der announced

the Department of Justice would no longer de

DOMA's

constitutionality because the Attorney General and the Pres

believed that a heightened standard of scrutiny should apply to

classifications based on sexual

entation, and that section 3

is unconstitutional under that standard. Letter from

c H.

Hol , Jr., Attorney Gen., to John A. Boehner, Speaker, U.S.

House of Rep., at 5 (Feb. 23, 2011). Given the Execut

Branch's decision not to enforce DOMA, the Bipartisan Legal

Advisory Group of the U.S. House of Representatives ("BLAG")

moved to intervene to defend the constitutionality of

statute. BLAG's motion was granted on June 2, 2011.

On June 24, 2011, Windsor moved for summary judgment,

arguing that DOMA is subject to strict constitutional scrutiny

because homo

s are a suspect class. She contends that DOMA

4

Case 1:10-cv-08435-BSJ -JCF Document 93 Filed 06/06/12 Page 5 of 26

fails under that standard of constitutional review because the

government cannot e

ish that DOMA is narrowly tailored to

serve a compelling or 1 timate government interest. In the

alternat , she argues that DOMA

no rational basis.

On August 1, 2011, BLAG moved to smiss Plaintiff's

complaint. It argues that the weight of t precedent compels

the Court to review DOMA only for a rat

sis

under

t

standard, there are ample reasons that justi the

legislation. Because the motion to smiss turns on the same

l

question as the motion for summary judgment, the Court

will address the two motions simultaneously.

II. DISCUSSION

A. Legal Standard

Rule 56 of the Federal Rules of Civil

provides

that a court shall grant a motion for summary judgment "if

, the discovery and disclosure materials on file, and

any affidavits show that there is no genuine issue as to any

material

t and that the movant is entitled to judgment as a

matter of law." Bessemer Trust Co., N.A. v. Branin, 618 F.3d

76, 86 (2d r. 2010) (quoting Fed. R. Civ. P. 56 (c)). "The

party seeking summary judgment bears the burden of establishing

that no genuine issue of material fact exists and

the

undisputed facts establish her right to judgment as a matter of

5

Case 1:10-cv-08435-BSJ -JCF Document 93 Filed 06/06/12 Page 6 of 26

law."

Cir. 1995)

To survive a mot

to dismiss pursuant to Rule 12 {b) (6),

"the operat

standard requires the plaintiff [to] provide the

grounds upon whi [her] claim rests through factual all

ions

sufficient to raise a right to relief above

speculative

level." Gol tein v. Pataki, 516 F. 3d 50, 56 (2d Cir. 2008)
(citation and internal quotation marks omitt ) . That lS, a

pl ntiff must assert "enough

s to state a claim to relie

that is plausible on its face." Bell Atl.

550

U.S. 544, 570 (2007); see Ashcroft v. I l, 129 S. Ct. 1937,

1949 (2009}.

B. Windsor's Standing to Pursue this Suit

As a threshold matter, the Court addresses whether Windsor

standing to pursue this act

"[T]he irreducible

constitutional minimum of standing contains three elements.

First, the pla iff must have suffered an ' ury in

'-an

invasion of a legal protected interest which is (a} concrete

and

iculari , and (b) actual or imminent, not

ectural' or 'hypothetical.'"

an v. Defenders of

Wildli , 504 u.s. 555, 560 (1992) (citations and int

quotation marks omitt

Second, the ainti f must present a

"causal connection between the

ury and the conduct complai

of-the injury has to be

rly

traceable to the

6

Case 1:10-cv-08435-BSJ -JCF Document 93 Filed 06/06/12 Page 7 of 26

challenged action the fendant, and not .

result of

the independent action of some third party not before the

court." Id. (internal quotation marks

alterations omitt ) .

Finally, "it must

'l ly,' as opposed to merely

at , ' that the injury will be 'redressed by a favorable

decision.'" Id. at 561.

There is no question that Windsor meets the first and third

rements. BLAG

to undermine the second factor by

arguing that Windsor has not proved that her marriage was

recognized under New York law in 2009, the relevant tax year.

In support of

s argument, it po s to a 2006 case where the

New York Court of Appeals ld

the "New York Constitution

does not compel recognit of marriages between members of the

same sex." Hernandez v. Robles, 855 N.E.2d 1, 5 (N.Y. 2006).

While the Court acknowledges the Court

Appeals' decision

in

in light

subsequent state executive action and

case law, the Court timately f

BLAG's argument

unpersuasive. In 2009, all three statewide elected execut

officials-the Governor, the Attorney General, and the

Comptroller-had endorsed

recognition of Windsor's marriage.

(describing 2004 informal opinion letters of the Attorney

General and

State Comptroller which respectively concluded

that "New York law presumptive requires that part s to such

7

Case 1:10-cv-08435-BSJ -JCF Document 93 Filed 06/06/12 Page 8 of 26

[same sex] unions must be treated as spouses for purposes of New York lawn and "[t]he Retirement System will recognize a same-sex Canadian marriage in the same manner as an opposite-sex New York marriage, under the pr iple of comityu); ckerson v.

2008 directive by the Governor to

ze same-sex marri s

from other jurisdictions) .

In addition, every New York State appellate court to have

addressed the issue in the years

lowing ~ernandez has upheld

the recognition of same sex marriages from other jurisdictions.

See In re Estate ()f RaJ:1ftle, 917 N.Y.S.2d 195 (N.Y. App. Div.

2011) (holding that a Canadian same sex marriage is valid New

York); Lewis v. N.Y. State

't of Civil Serv., 60 A.D.3d 216

(N.Y. App. Div. 2009), aff'd on other

sub nom. Godf

13 N.Y.3d 358 (affirming the lower court's ld

that New

York's marriage recognition rule requires the

tion of

out-of state same sex marriages); Martinez v.

of Monroe,

~--·---------~---±-~----------

850 N.Y.S.2d 740 (N.Y. App. Div. 2008) (hol ng that aintiff's

same-sex Canadian marriage is entitl to recognit

in New

York) .

Finally, though

Court of Appeals has yet to readdress

t question of same-sex marriage recognition directly, its 2009

sa nothing to cast doubt on the

8

Case 1:10-cv-08435-BSJ -JCF Document 93 Filed 06/06/12 Page 9 of 26

form lower-court authority recognizing the validi of same

sex marriages. 13 N.Y.3d at 377.

For all of

se reasons, s

State, through its

executive

ies and appellate courts,

formly recognized

Windsor's same sex marriage in the year that she paid the

federal estate taxes, the Court finds that

standing.

C. The Effect of Baker v. Nelson

The Court next considers BLAG's argument that the Supreme

Court's holding in Baker v. Nelson, 409 U.S. 810 (1972),

requires it to smiss Windsor's case.

re, the Supreme Court

summarily affirmed a challenge to a Minnesota state law that

denied a marriage license to a same-sex couple. The aintiffs

challenged the law in state court on equal protect

grounds,

arguing that "the right to marry without regard to the sex of

the

ies lS a fundamental right," and that "restricting

marriage to only couples of the opposite sex is irrational and

invidiously discriminatory.u

v. Nelson, 191 N.W.2d 185,

186 (Minn. 1971). The Supreme Court dismissed the challenge for

"want of a substantial federal question.u Baker, 409 U.S. 810.

BLAG now argues

is disposit

of the issue before

this Court and, as binding precedent, compels the Court to find

that "defining marriage as between one man and one woman

comports with equal protection." (BLAG Mot. to Dismiss at 12.)

9

Case 1:10-cv-08435-BSJ -JCF Document 93 Filed 06/06/12 Page 10 of 26

Summary J

s from

lower courts only with

Supreme Court are binding on the

to the precise legal

ions and

facts presented in the jurisdict

statement. Ill. State

of Elections v. Socialist

, 440 U.S. 173, 182

~~==~~~--~----~--------~----~------·· -······~

(1979). The case before the Court

not present the same

issue as that presented in Baker. DOMA defines marriage for

federal purposes, with the effect of allocating federal rights

and benefits. It does not preclude or otherwise

bit a state

from authorizing same sex marriage (or is

marriage

licenses), as did the Minnesota statute in Baker. Indeed, BLAG

agrees

DOMA does not preclude or inhibit same sex marriage

and Windsor does not argue that DOMA affects the fundamental

right to marry.

Accordingly, after comparing the issues in Baker and those

in the instant case, the Court does not believe that Baker

"necessari decided" the

ion of whether DOMA violates the

Fifth Amendment's

Protection a use. Accord ~-.3..:..., Smelt

v.

374 F.

. 2d 861, 872 73 (C .D. Cal.

2005), aff'd in

rev'd in

on other

I 447 F.3d

673 (2006) (decl

to find

Baker controlled in an

l

ection

lenge to DOMA); see also In re Kandu, 315 B.R.

123, 137 (Bankr. W.D. V.Jash. 2004) (same). The Court will not

of Va., 517 U.S. 186, 203 n.21 (1996)
--~--------------~-- - - - - - -
10

Case 1:10-cv-08435-BSJ -JCF Document 93 Filed 06/06/12 Page 11 of 26

Having decided that Baker does not require a cision in BLAG's favor as a matter of law, the Court turns to the parties'

equal protection arguments.

D. Equal Protection

Equal protection requires the government to treat all

similarly situated persons alike. Ci of Cleburne v. Cleburne

It prohibits the

government from drawing "distinctions between individuals based

solely on differences that are irrelevant to a legitimate

governmental objective." Lehr v. Robertson, 463 U.S. 248, 265

(1983).

Of course, not all legislative classifications violate

equal protection. See Nordl

v. Hahn, 505 U.S. 1, 10

(1992). The "promise [of] equal protection of the laws must

coexist with the practi

necessity that most legislation

classifies for one purpose or another, with resulting

disadvantage to

ous groups or persons." Romer v. Evans, 517

u.s. 620, 631 (1996). With that reality in view, "[t]he

rule is that legislation is presumed to be val and will be

sustained if the classification drawn by the statute lS

rational related to a l timate state interest." Ci of

Cleburne, 473 U.S. at 440. That general rule, embodied in the

"rational basis" test, applies in the mine-run of cases

involving "commercial, tax and like

ation." Massachusetts

11

Case 1:10-cv-08435-BSJ -JCF Document 93 Filed 06/06/12 Page 12 of 26

v

't of Health & Human Servs. et al., Nos. 10 2207 &

10-2214, slip op. at 13 (1st r. May 31, 2012)

Rational s1s rev1ew 1s the "paradigm of j cial

restraint." FCC v. Beach Commc'ns, Inc., 508 U.S. 307, 314

(1993). The burden of proving a statute unconstitutional falls

on the party attacking the legislation. Heller v. Doe, 509 U.S.

312, 321 (1993); Baker v. Carr, 369 U.S. 186, 266 (1962)

(Stewart, J., concurring) "A statutory scrimination will not

be set aside if any state of facts reasonably may be conceived

to justi it." McGowan v.

and, 3 6 6 U. S . 4 2 0 , 4 2 6 (19 61) .

Accordingly, courts must

as constitutional those

legislative classifications that

a rati

relati

to

a legitimate government interest.

Courts review with

scrut

classifications that

sadvantage a suspect class or impi

upon the exercise of a

fundamental right.

er v. Doe, 457 U.S. 202, 216 17 (1982)

Pursuant to a court's "st ct scrut ," a classification

violates

protect

unless it is "precisely tailored to

serve a compelling governmental interest." ]:d. at 217; see

Constructors Inc. v. Pena, 515 U.S. 200, 227 (1995)

Classifications that disadvantage a quasi-suspect class are also

subject to a hei ened st

of constitutional review.

Courts review those classifications with an intermediate level

of scrut

Under "heightened" or "intermediate scrutiny," the

12

Case 1:10-cv-08435-BSJ -JCF Document 93 Filed 06/06/12 Page 13 of 26

classification must be "substantially related to a legitimate

state erest" to survive constituti

attack. Mills v.

Habluetzel, 456 U.S. 91, 99 (1982).

There are few classifications that trigger st ct or

heightened scrutiny.

461 (1988) (illegitimacy subject to intermediate scrutiny);

Miss. Univ. for Women v.

1 458 u.s. 718, 723 24 (1982)

--------------------------------~---

subject to intermediate scrutiny);

nia,

3 8 8 U. S . 1 , 11 (19 6 7 ) (race subj e c t to s t c t s c rut iny) ;

Korematsu v. United States, 323 U.S. 214, 216 (1944) (national ··--··-
ancestry and ethnic origin subject to strict scrutiny). "And

because heightened scrutiny requires an exacting investigation

of legislative choices, the Supreme Court has made clear that

'respect for the separation of powers' should make courts

reluctant to establish new suspect classes.u Thomasson v.

of Cleburne, 473

U.S. at 441); see also

v. Castillo, 477 U.S. 635, 638

(1986) (declining to extend strict scrutiny to "[c] lose

relatives"); Mass. Bd. of Retirement v.

a, 427 U.S. 307,

313 (1976) (per curiam) {declining to extend strict scrutiny to

the elderly) .

Windsor now argues that DOMA should be subject to strict

(or at least intermediate) scrutiny because homosexuals as a

class present the traditional indicia that characterize a

13

Case 1:10-cv-08435-BSJ -JCF Document 93 Filed 06/06/12 Page 14 of 26

suspect class: a history of discrimination, an immutable

characteristic upon which the classification is drawn, political

powerlessness, and a lack of

relationship tween the

characteristic in question

the class's

lity to rform in

or contribute to society.

In making this claim, Windsor asks t Court to distingui

the precedent in even Courts of Appeals that have applied the

rational basis test to legislation

classifies on the basis

of sexual orientation. See Massachusetts v. HHS, Nos. 10 2207 &

10-2214; Citizens for

l Protection v. Bruni , 455 F.3d 859

(8 Cir. 2006); Lofton v. Sec'

't of Children & Fami

Servs., 358 F.3d 804 (11 Cir. 2004); Johnson v. Johnson, 385

F.3d 503 (5th Cir. 2004);

of Cincinnati,

128 F.3d 289 (6th Cir. 1997); Thomasson, 80 F. 3d 915; Steffan v.

Indus. Sec. ~Clearance Office, 895 F.2d 563 (9th Cir. 1990) Ben-

lorn v. Marsh, 881 F.2d 454 (7th Cir. 1989); Woodard v.

ted

States, 871 F.2d 1068 (Fed. Cir. 1989); Nat'l --------···~~----~----------
?d. of Educ., 729 F.2d 1270 (lOth Cir. 1984). She invites this

Court to deci , as a matter of first

sian in

Second

rcuit, whether homosexuals are a suspect class.

Though t

is no case law in the Second Circuit binding

the Court to the rational basis standard in this context,

Court is not without guidance on

matter. For one, as the

14

Case 1:10-cv-08435-BSJ -JCF Document 93 Filed 06/06/12 Page 15 of 26

Supreme Court has observed, "courts have been very reluctant, as

they should be

our federal system," to create new

classes.

Moreover, the

Supreme Court "conspicuously" has not signated homosexuals as

a suspect class, even

it has had the opportunity to do

so. See Massachusetts v. HHS, Nos. 10-2207 & 10-2214, slip op.

at 15 (noting that "[n]othing indicates that the Supreme Court

is about to

this new suspect classification when it

conspicuous failed to do so in Romer"). Against

s

backdrop, this district court is not inclined to do so now. In

any event, because the Court believes that the constitutional

question presented here may disposed of under a rational

basis

ew, it need not cide

whether homosexuals are a

class.

The Court will, however, elaborate on an aspect of the

equal protection case law that it believes af

s the nature of

t rational basis

ysis required here. The

Court's

equal

ection

is ions

increasingly distinguished

between "[l]aws such as economic or tax legislation that are

scrutinized under rational basis review[, which] normal pass

constitutional muster," and "law[s that] exhibit[]

a

desire to harm a political unpopular group," which rece

"a

more searching form of rational

is review

. under the

Equal Protection Clause .

J/ Lawrence v. Texas, 539 U.S.

15

Case 1:10-cv-08435-BSJ -JCF Document 93 Filed 06/06/12 Page 16 of 26

558, 579-80 (2003) (O'Connor, J., concurring); see "R_ome:l:', 517

u.s. 620;

of Cleburne, 473 u.s. 432; __ _u_._s_·--~~-------~ c__.

v. Moreno, 413 U.S. 528 (1973). It is difficult to

this

pattern, whi suggests that the rational basis analysis can

vary by context.

At least one Court of Appeals has considered this pattern

as well. As the First

explains, "Without relying on

suspect classifications, Supreme Court equal protection

decisions have both intensified scrutiny of purported

justifications where minorities are subject to discrepant

treatment and have limited the

ssible justifications." See

Massachusetts v. HHS, Nos. 10 2207 & 10-2214, slip op. at 15.

And, "in areas where state regulation has traditionally

governed, the Court may require that the federal government

interest in intervention be shown with special cl ty • II Id.

Regardless whether a more "searching" form of rational

basis scrutiny is required where a classification burdens

homosexuals as a class and the states' prerogatives are

concerned, at a minimum, this Court must "insist on knowing the

relation between the classification adopted and the object to be

attained." Romer, 517 U.S. at 632. "The search for the link

between classification and ective gives substance to the

[equal protection analysis] II Id. Additionally, as has always

been required under the rational basis test, irrespective of the

16

Case 1:10-cv-08435-BSJ -JCF Document 93 Filed 06/06/12 Page 17 of 26

context,

Court must consider whether the government's

asserted interests are l timate. Pursuant to these

established princip s, and mindful

the Supreme Court's

jurisprudenti cues, the Court finds that DOMA's section 3 does not pass constitutional muster. 2

E. Congress's Justifications

Contemporaneous with its enactment, Congress justified DOMA

as: defending and nurturing the traditional institution of

marriage; promoting heterosexuality; encouraging responsible

procreation and childrearing; preserving scarce government

resources; and fending traditional notions of morali

In

its motion to dismiss and memorandum in opposition to summary

judgment, BLAG advances some, but not all of these interests as

rational bases for DOMA. It additional asserts that Congress

passed DOMA the interests caution, mainta

consistency

in citizens' eligibility for federal benefits, promoting a

social understanding that marriage is related to childrearing,

and providing children wi two parents of the opposite sex.

The Court considers all of these interests to determine whether

2 Any additional discussion of heightened or intermediate scrutiny would be

"whol superfluous to the decision" and contrary to settled principles of

constitutional avoidance. Ci of Cleburne, 473 U.S.

concurring in part, dissent

in part);

456 (Marshall, J. 1

:_:_-c:=.:c~==--=i=n 323 U.S. 101, 105 (1944); se<::~::l<2 ss.

, 458

U.S. at 724 n.9 (declining to address strict scrut

scrutiny was sufficient to invalidate the challenged action);

v.

Bernalillo

. Assessor 472 U.S. 612, 618 (1985) (declining to reach

heightened scrutiny in revi

classifications that failed the rational

basis test) .

17

Case 1:10-cv-08435-BSJ -JCF Document 93 Filed 06/06/12 Page 18 of 26

has

[d] every conce

e basis whi might

[the statute] II Heller, 509 U.S. at 320 21 (citation

and ernal quotation marks omit

1. Caution and The Traditional Institution of Marriage

BLAG submits

"caution" was a rational basis for DOMA

ar as Congress wanted time to consider whether it should

(some of) t states' "novel redefinition" of

age.

As BLAG describes it, caution justified DOMA because al

t soc

concept of marriage would undermine Congress's

of nurturing the foundat

institution of marriage. (BLAG

Mot. to Dismiss at 29-31.) By that account, Congress's putative

interest in "caution" seems, in substance, no different

an

interest nurturing

t

tional

itut

of marriage.

See H.R.

No. 104 664, at 12. The Court t

fore cons rs

both of

interests t

r.

Wi respect to traditi

marriage, BLAG argues that

Congress lieved DOMA would promote it by "rna

n[ing] the

definition of marriage that was universally

ed in American

law. 11 (BLAG Mot. to Dismiss at 28). That interest may be

legitimate. 3 However, it is unclear how DOMA

s it.

3 While tradition as an end in itself may not be a legitimate state interest

in this case, see J::!E:,ller, 509 U.s. at 326 (noting that the "[a] ncient

lineagen of a tradition does not necessari make its preservation a

legitimate government goal), the Court

that an interest in

maintaining the traditional institution of marriage, when

with other

legitimate interests, could be a sound reason for a legislative

classification, see Lawrence, 539 U.S. at 585 (O'Connor, J., concurring)

18

Case 1:10-cv-08435-BSJ -JCF Document 93 Filed 06/06/12 Page 19 of 26

DOMA does not affect the state laws that govern marriage.

(BLAG Mot. to Dismiss at 20 (noting that DOMA does not "directly

and substanti ly erfere with the ability same-sex couples

to marry") . ) Precisely because the decision of whether same sex couples can marry is left to the states, DOMA does not, strict

speaking, "preserve" the institution of marriage as one between

a man and a woman. The statute creates a federal

inition of

marriage. But that definition does not give content to the

fundamental right to marry-and it is the substance of that

right, not its facial

inition, that actually shapes the

institution of marriage.

570, 580 (1956) (noting that "[t] scope of a federal right is,

of course, a federal question, but that does not mean that its

content is not to be

ermined by state, rather than federal

law, [which] is especial true where a statute deals with a

familial relationship [because] there is no federal law of

domest relations").

To the extent Congress had any other independent interest

in approaching same sex marriage with caut

for much the same

reason, DOMA does not further it. A number of states now

(stating that "preserving the traditional institution of marriage'' would be a

imate state interest in an equal protection analysis) . To the extent

Congress had an interest in defending traditional notions of moral

in

furtherance of an interest in traditional marriage, H.R. Rep. No. 104~664, at

16, the Court agrees that "[p]reserving th[e] institution [of traditional

is not the same as mere moral disapproval of an excluded group, and

so in this case given the range of b

san support for

Massachusetts v. HHS Nos. 10-2207 & 10 2214, sl op. at 29, 30

(citation and

quotation marks omitted)

19

Case 1:10-cv-08435-BSJ -JCF Document 93 Filed 06/06/12 Page 20 of 26

same sex marriages. DOMA did not compel those states to "wait[]

for evidence

ng a longer term before engaging in

. a

major redefinition of a foundational social institution.n (BLAG

Mot. to Dismiss at 29.) Thus, whatever the "soci

consequences" of this legal development ultimately may be, DOMA

has not, and cannot, forestall them.

2. Childrearing and Procreation

Promoting the ideal fami structure for raising children

is another reason Congress might have enacted DOMA. Again, the

Court does not di

that promoting

ly values and

responsible parenting are legitimate governmental goals. The

Court cannot, however, discern a logical relationship between

DOMA and those goals.

BLAG argues that Congress enacted DOMA to avoid a social

perception that marriage is not linked to childrearing. In

furtherance of that interest, it argues, Congress might have

4 Congress also expressed "a corresponding interest in promoting heterosexuality" as "closely related to the interest in protecting traditional marriage." H.R. Rep. No. 104 664, at 15 n.53. BLAG does not contend that this is a rational basis for DOMA's classification; nonetheless, the Court briefly considers it, as a "conceivable" basis that "might" support it. Heller, 509 U.S. at 320.

A

ssible classification must at least "find some footing in the

realities of the subject addressed by the legislation."

. at 321. Here,

such

is lacking. DOMA affects only those individuals who are already

married. The Court finds it implausible that section 3 does anything to

persuade those married persons (who are homosexuals) to abandon their current

marriages in favor of heterosexual relationships. Thus, the stated goal of

promoting heterosexual

is so attenuated from DOMA's classification that it

"render[s] the distinction

or irrational."

of

, 473

U.S. at 446.

20

Case 1:10-cv-08435-BSJ -JCF Document 93 Filed 06/06/12 Page 21 of 26

pas DOMA to deter heterosexual couples from having children

out of wedlock, or to incentivize couples who are pregnant to

married. (BLAG Mot. to Dismiss at 36.) BLAG also aims

that Congress had an erest ln promoting the optimal social

(family) structure for raising children-that is, househol with

one mother and one father. (BLAG Mot. to Dismiss at 38.) These

concerns appear related to Congress's contemporaneously stated

interest in "responsible procreation." H.R.

. No. 104 664,

at 12 13.

se are interests in the choices that heterosexual

couples make: whether to get marri , and whether and when to

have children. Yet DOMA has no rect impact on heterosexual

couples at alli therefore, its ability to deter those couples

from having children outside of

age, or to

entivize

couples that are pregnant to get married, is remote, at best.

It does not follow from the exclusion of one group from federal

benefits (same sex marri persons) that another group of

e

(opposite-sex married couples) will be incentivized to take any

action, whether that is marriage or procreation. See In re

Levenson, 587 F.3d 925, 934 (9th Cir. 2009).

Conceivably, Congress could have been interested more

ly in maintaining the societal perception that a primary

purpose of marriage is procreation. However, even formulated as

such, the Court cannot see a link between DOMA and childrearing.

21

Case 1:10-cv-08435-BSJ -JCF Document 93 Filed 06/06/12 Page 22 of 26

DOMA does not determine who may adopt and

se children. Nor

could it, as

matters of fami structure and relations

"belong[] to the laws of

States and not to the laws of

ted States." Elk Grove Unified S u.s. 1, 12 (2004).

Dist. v. Newdow, 542

-

.

perceptions of what a

ly "is" and should be, and no effect

at all on

types of family structures in whi chil

in

this country are raised. And so, although this Court must

"accept a legislature's generalizations even when there is an

t fit between means and ends," Heller, 509 U.S. at 320,

, Congress's goal is "so far removed" from the

classification, it is imposs e to credit its justification.

n.27 (2d Cir. 2001) (noting

the justification for the law

cannot rely on factual assumptions that are beyond the "limits

of 'rational speculation'" (quot

Heller, 509 U.S. at 320))

3. Consistency and Uniformity of Federal Benefits

Additionally, BLAG explains

ss was motivated to

def marriage at the

level to ensure that federal

benefits are distributed consistently. In other words, Congress

might have enacted DOMA to avoid a scenario in which

e in

different States . . have different eligibility to receive

Federal benefits," depending on the state's marriage laws.

22

Case 1:10-cv-08435-BSJ -JCF Document 93 Filed 06/06/12 Page 23 of 26

(BLAG Mot. to Di ss at 34 (quoting 142 Cong. Rec. 810121

ly ed. Sept. 10, 1996) (statement of Sen. Ashcroft)).)

Here,

Court does discern a link between

means and

the

It is problematic, though, that the means

in this

ance intrude upon the states' business of regulating

domest relations. That incursion skirts important principles

of federalism and therefore cannot be l timate, in this

Court's view.

In the first instance, it bears mention that this notion of

"consistency," as BLAG presents it, is misleading. Historic ly

the states-not the federal government-have defined "marriage. 11

Cf. United States v.

z, 514 U.S. 549, 583 (1995) (Kennedy,

J., concurring) (not

that the states have

oyed the

lati

to "experiment[] and exercis[e] their own judgment in

an area to which [they] lay claim by right of history and

expertise 11 ). For that reason, before DOMA, any uniformity at

the federal level with respect to citizens' eligibility for

marital benefits was merely a byproduct of the states' shared

inition of marriage. The federal government neither

sponsored nor promoted t

uniformity. See In re Levenson, 587

F.3d at 933 (not

t

the relevant status quo prior to DOMA

was the federal government's recognition of any marriage

declared valid according to state law); Gill v. Office of Pers .

. , 699 F. Supp. 2d 374, 393 (D. Mass. 2010) (same).
~'---

23

Case 1:10-cv-08435-BSJ -JCF Document 93 Filed 06/06/12 Page 24 of 26

Yet even if Congress had developed a newfound interest in

promoting or mainta

consistency in the marital benefits

that

federal government provides, DOMA is not a

it

e

method for doing so. To accomplish that consistency, DOMA

operates to reexamine the states' decisions concerning same-sex

marriage. It sanctions some of those decisions and

ects

others. But such a sweeping federal review in this arena does

not square wi our federalist system of government, which

aces matters at the "core" of the domestic relations law

exclusively within

province of the states. See Ankenbrandt

v. chards, 504 U.S. 689, 716 (1992) (Blackmun, J.,

concurring); Sosna v. Iowa, 419 U.S. 393, 404 (1975); see also

Mass

ts v. u.s.

't of Health & Human Servs., 698 F.

Supp. 2d 234, 249 50 (D. Mass. 2010)

scussing the story of

marital status

erminations as an attribute of state

sovereignty) .

states

choose, through their legislative or

constitutional processes, to preserve traditional marriage or to

redefine it. See Golinski v. Office of Pers.

• I 824 F.

Supp. 2d 968, 988 (N.D. Cal. 2012) (noting that thirty states

have passed constitutional amendments banning same-sex

marriage) . But general speaking, barring a state's inability

to assume its role in regulating domestic relations, the federal

government has not attempted to manage those processes and

24

Case 1:10-cv-08435-BSJ -JCF Document 93 Filed 06/06/12 Page 25 of 26

affairs. See . at 1000 n.10 (observing that, historically,

the federal government has only legislated in this area where

re has been a failure or absence of state government). BLAG

has conceded s storical fact. See Transc

of Oral

Argument at 10:15 20, 18:2 5, Golinski, 824 F. Supp. 2d 968

(No.10-257) (conceding that BLAG's "research hasn't shown that

there are historical examples which [sic] Congress has

l slated on behalf of the federal government in the area of

domestic

ations"). This is the "virtue of federalism."

Massachusetts v. HHS, Nos. 10-2207 & 10-2214, s ip op. at 30.

4. Conserving the Public Fisc

Lastly, Congress also justified DOMA as a means of

conserving government resources. (BLAG Mot. to Dismiss at 32.)

An interest in conserving the public fisc alone, however, "can

hardly justify the classification used in allocating those

resources." "arbitrari

er, 457 U.S. at 227. After all, excluding any
---"--··--
chosen group of individuals from a government

program" conserves government resources.

ch v. u.s.

't of the

2011). With no other rational basis to support it, Congress's

interest in economy does not suffice. Accord, §:.:_9_:_,

ch

op. at 26

(N.D. Cal. May 24, 2012); Golinski, 824 F. Supp. 2d at 994 95.

25

Case 1:10-cv-08435-BSJ -JCF Document 93 Filed 06/06/12 Page 26 of 26
CONCLUSION For the foregoing reasons, Plaintiff's motion for summary judgment lS GRANTED and Defendant-Intervenor's motion to dismiss is DENIED. The Court declares that section 3 of the Defense of Marriage Act, 1 U.S.C. § 7, is unconstitutional as applied to Plaintiff. Plaintiff is awarded judgment in the amount of $353,053.00, plus interest and costs allowed by law. Each party shall bear their own costs and fees. This case is CLOSED. The clerk of the court is directed to terminate the motions at docket numbers 28, 49, and 52.

SO ORDERED:

B&~;i~
UNITED STATES DISTRICT JUDGE

Dated:

New York, New York June 6, 2012

26

 
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MANDATE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

N.Y.S.D. Case # 10-cv-8435(BSJ)

______________________________________________

At a Stated Term of the United States Court of Appeals for the Second Circuit, held at the

Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 18th

day of October, two thousand and twelve.

USDC SDNY

Before:

Dennis Jacobs, Chief Judge,
Chester J. Straub, Christopher F. Droney
Circuit Judges.

DOCUMENT ELECTRONICALLY FILED DOC #: _________________ DATE FILED: _M_a_y__3_0_, _20_1_4____

_______________________________________________________

Edith Schlain Windsor, In her Official capacity as Executor of the estate of Thea Clara Spyer,

Plaintiff - Appellee, v.

JUDGMENT Docket Nos. 12-2335(L)
12-2435(con)

Bipartisan Legal Advisory Group of the United States House of Representatives,

Intervenor - Defendant - Appellant,

United States of America,

Defendant-Appellant. _______________________________________________________

The appeal in the above captioned case from a judgment of the United States District Court for the Southern District of New York was argued on the district court record and the parties' briefs. Upon consideration thereof,

IT IS HEREBY ORDERED, ADJUDGED and DECREED that the judgment of the district court is AFFIRMED in accordance with the opinion of this court.

For The Court:
Catherine O’Hagan Wolfe, Clerk of Court

MANDATE ISSUED ON 05/30/2014

CCaassee:11:120-2-c3v3-50843D5o-BcuSmJ-eJnCt:F44D7o-1cumPeangt e1:218-1 1F0il/e1d8/0250/1320/14 75P0a0g9e81 of 4433

12-2335-cv(L)

Windsor v. United States

1

2

UNITED STATES COURT OF APPEALS

3

4

FOR THE SECOND CIRCUIT

5

6

August Term, 2012

7

8

9

(Argued: September 27, 2012

Decided: October 18, 2012)

10

11

Docket No. 12-2335-cv(L); 12-2435(Con)

12

13 - - - - - - - - - - - - - - - - - - - -x

14

15 EDITH SCHLAIN WINDSOR, IN HER OFFICIAL CAPACITY AS EXECUTOR

16 OF THE ESTATE OF THEA CLARA SPYER,

17

18

Plaintiff-Appellee,

19

20

- v.-

21

22 UNITED STATES OF AMERICA,

23

24

Defendant-Appellant,

25

26

and

27

28 BIPARTISAN LEGAL ADVISORY GROUP OF THE UNITED STATES HOUSE

29 OF REPRESENTATIVES,

30

31

Intervenor-Defendant-Appellant.

32

33 - - - - - - - - - - - - - - - - - - - -x

34

35

Before:

JACOBS, Chief Judge, STRAUB and DRONEY,

36

Circuit Judges.

37

38

Intervenor Bipartisan Legal Advisory Group of the

39 United States House of Representatives appeals from an order

40 of the United States District Court for the Southern

41 District of New York granting summary judgment in favor of

CCaassee:11:120-2-c3v3-50843D5o-BcuSmJ-eJnCt:F44D7o-1cumPeangt e1:228-1 1F0il/e1d8/0250/1320/14 75P0a0g9e82 of 4433

1 the surviving spouse of a same-sex couple who was denied the

2 benefit of the spousal deduction under federal tax law. The

3 United States, the defendant, is a nominal appellant. For

4 the following reasons, we conclude that Section 3 of the

5 Defense of Marriage Act violates equal protection and is

6 therefore unconstitutional.

7

Judge STRAUB dissents in part and concurs in part in a

8 separate opinion.

9

STUART F. DELERY, Acting

10

Assistant Attorney General,

11

United States Department of

12

Justice, Washington, DC (Michael

13

Jay Singer, August E. Flentje,

14

on the brief), for Defendant-

15

Appellant.

16

17

PAUL D. CLEMENT, Bancroft PLLC,

18

Washington, DC (H. Christopher

19

Bartolomucci, Conor B. Dugan,

20

and Nicholas J. Nelson, on the

21

brief; Kerry W. Kircher, William

22

Pittard, Christine Davenport,

23

Todd B. Tatelman, Mary Beth

24

Walker, Office of General

25

Counsel, United States House of

26

Representatives, Washington, DC,

27

of counsel), for Intervenor-

28

Defendant-Appellant.

29

30

ROBERTA A. KAPLAN, Paul, Weiss,

31

Rifkind, Wharton & Garrison LLP,

32

New York, NY (Andrew J. Ehrlich,

33

Jaren Janghorbani, Paul, Weiss,

34

Rifkind, Wharton & Garrison LLP,

35

New York, NY, James D. Esseks

36

and Rose A. Saxe, American Civil

2

CCaassee:11:120-2-c3v3-50843D5o-BcuSmJ-eJnCt:F44D7o-1cumPeangt e1:238-1 1F0il/e1d8/0250/1320/14 75P0a0g9e83 of 4433

1

Liberties Union, New York, NY,

2

and Melissa Goodman, Arthur

3

Eisenberg, and Mariko Hirose,

4

New York Civil Liberties Union

5

Foundation, New York, NY, on the

6

brief), for Appellee.

7

8

Vincent P. McCarthy, Litchfield,

9

CT, for amicus curiae American

10

College of Pediatricians in

11

support of Intervenor-Defendant-

12

Appellant.

13

14

Joseph A. Campbell, Alliance

15

Defending Freedom, Scottsdale,

16

AZ, for amicus curiae Frederick

17

Douglas Foundation in support of

18

Intervenor-Defendant-Appellant.

19

20

Cecilia Noland-Heil, American

21

Center for Law & Justice,

22

Virginia Beach, VA (Erik

23

Zimmerman, Jay Alan Sekulow and

24

Stuart J. Roth, American Center

25

for Law & Justice, Virginia

26

Beach, VA and Washington, DC, on

27

the brief), for amici curiae

28

Former Attorneys General Edwin

29

Meese III and John Ashcroft in

30

support of Intervenor-Defendant-

31

Appellant.

32

33

Gregory F. Zoeller, Attorney

34

General, State of Indiana,

35

Indianapolis, IN (Thomas M.

36

Fisher, Solicitor General, Ellen

37

H. Meilaender, Deputy Attorney

38

General, on the brief), for

39

amici curiae States of Indiana,

40

Alabama, Alaska, Arizona,

41

Colorado, Georgia, Idaho,

42

Kansas, Michigan, Nebraska,

43

Oklahoma, South Carolina, South

44

Dakota and Virginia in support

3

CCaassee:11:120-2-c3v3-50843D5o-BcuSmJ-eJnCt:F44D7o-1cumPeangt e1:248-1 1F0il/e1d8/0250/1320/14 75P0a0g9e84 of 4433

1

of Intervenor-Defendant-

2

Appellant.

3

4

Joshua K. Baker, National

5

Organization for Marriage,

6

Washington, DC (William C.

7

Duncan, Marriage Law Foundation,

8

Lehi, UT, on the brief), for

9

amicus curiae National

10

Organization for Marriage in

11

support of Intervenor-Defendant-

12

Appellant.

13

14

Steven W. Fitschen, The National

15

Legal Foundation, Virginia

16

Beach, VA, for amicus curiae

17

Concerned Women for America in

18

support of Intervenor-Defendant-

19

Appellant.

20

21

William F. Sheehan, Goodwin

22

Procter LLP, Washington, DC

23

(Andrew S. Hudson, Goodwin

24

Procter LLP, Washington, DC and

25

Nathalie F.P. Gilfoyle, American

26

Psychological Association,

27

Washington, DC, on the brief),

28

for amici curiae the American

29

Psychological Association, the

30

American Academy of Pediatrics,

31

the American Psychiatric

32

Association, the American

33

Psychoanalytic Association, the

34

National Association of Social

35

Workers and its New York City

36

and State Chapters, and the New

37

York State Psychological

38

Association in support of

39

Plaintiff-Appellee.

40

41

Susan L. Sommer, Lambda Legal

42

Defense & Education Fund, Inc.,

43

New York, NY (Timothy S. Fischer

44

and Brian P. Rice, McCarter &

4

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1

English, LLP, Hartford, CT and

2

Shannon P. Minter and

3

Christopher F. Stoll, National

4

Center for Lesbian Rights, San

5

Francisco, CA, on the brief),

6

for amici curiae Bar

7

Associations and Public Interest

8

and Legal Service Organizations

9

in Support of Plaintiff-

10

Appellee.

11

12

Matthew F. Damm, O’Melveny &

13

Myers LLP, New York, NY (Dawn

14

Sestito, Demitri D. Portnoi, and

15

Amy R. Lucas, O’Melveny & Myers

16

LLP, Los Angeles, CA and New

17

York, NY, on the brief), for

18

amici curiae Family Law

19

Professors in Support of

20

Plaintiff-Appellee.

21

22

Michael A. Cardozo, Corporation

23

Counsel of the City of New York,

24

New York, NY (Francis F. Caputo,

25

Susan Paulson, on the brief),

26

for amici curiae the City of New

27

York, the Council of the City of

28

New York, Michael R. Bloomberg,

29

in His Official Capacity as

30

Mayor of the City of New York,

31

and Christine C. Quinn, in Her

32

Official Capacity as Speaker of

33

the Council of the City of New

34

York in Support of Plaintiff-

35

Appellee.

36

37

Mark Wolinsky, Wachtell, Lipton,

38

Rosen & Katz, New York, NY

39

(Jonathan M. Moses, Kevin S.

40

Schwartz, Luke M. Appling, on

41

the brief), for amicus curiae

42

the Partnership for New York

43

City in Support of Plaintiff-

44

Appellee.

5

CCaassee:11:120-2-c3v3-50843D5o-BcuSmJ-eJnCt:F44D7o-1cumPeangt e1:268-1 1F0il/e1d8/0250/1320/14 75P0a0g9e86 of 4433

1

Suzanne B. Goldberg, Columbia

2

Law School, New York, NY, for

3

amicus curiae Columbia Law

4

School Sexuality & Gender Law

5

Clinic in Support of Plaintiff-

6

Appellee.

7

8

Catherine R. Connors, Pierce

9

Atwood LLP, Portland, ME, for

10

amici curiae Historians in

11

Support of Plaintiff-Appellee.

12

13

Miriam R. Nemetz, Mayer Brown

14

LLP, Washington, DC (Kathleen

15

Connery Dawe and Michael B.

16

Kimberly, Mayer Brown LLP,

17

Washington, DC, and Heather C.

18

Sawyer, Committee on the

19

Judiciary, John Conyers, Jr.,

20

and Jerrold Nadler, Ranking

21

Members, Washington, DC), for

22

amici curiae Members of the U.S.

23

House of Representatives, in

24

Support of Plaintiff-Appellee.

25

26

Nicole G. Berner, Washington, DC

27

(James B. Coppess, AFL-CIO,

28

Washington, DC, Patrick

29

Szymanski, Change to Win,

30

Washington, DC, and Alice

31

O’Brien, National Education

32

Association, Washington, DC, on

33

the brief), for amici curiae

34

American Federation of Labor and

35

Congress of Industrial

36

Organizations, Change to Win,

37

and National Education

38

Association in support of

39

Plaintiff-Appellee.

40

41

Joseph F. Tringali, Simpson

42

Thacher & Bartlett LLP, New

43

York, NY (Alexandra C. Pitney

44

and Nicholas S. Davis, on the

6

CCaassee:11:120-2-c3v3-50843D5o-BcuSmJ-eJnCt:F44D7o-1cumPeangt e1:278-1 1F0il/e1d8/0250/1320/14 75P0a0g9e87 of 4433

1

brief), for amici curiae Service

2

and Advocacy for Gay, Lesbian,

3

Bisexual and Transgender Elders

4

(SAGE), National Senior Citizens

5

Law Center and American Society

6

on Aging in support of

7

Plaintiff-Appellee.

8

9

Debo P. Adegbile, NAACP Legal

10

Defense & Education Fund, Inc.,

11

New York, NY (Elice C. Boddie,

12

Rachel M. Kleinman, Ria A.

13

Tabacco, Joshua Civin, NAACP

14

Legal Defense & Education Fund,

15

Inc., New York, NY, and

16

Washington, DC), for amicus

17

curiae NAACP Legal Defense &

18

Education Fund, Inc., in support

19

of Plaintiff-Appellee.

20

21

Harvey J. Wolkoff, Ropes & Gray

22

LLP, New York, NY (Stuart W.

23

Yothers and Samuel P. Bickett,

24

Ropes & Gray LLP, New York, NY

25

and Steven M. Freeman and Seth

26

M. Marnin, Anti-Defamation

27

League, New York, NY, on the

28

brief), for amici curiae Anti-

29

Defamation League, Central

30

Conference of American Rabbis,

31

Congregation Beit Simchat Torah,

32

Bend the Arc: A Jewish

33

Partnership for Justice,

34

Hadassah: the Women’s Zionist

35

Organization of America, the

36

Hindu American Foundation,

37

Interfaith Alliance Foundation,

38

Japanese Citizens League, the

39

Justice and Witness Ministries:

40

United Church of Christ,

41

National Counsel of Jewish

42

Women, People for the American

43

Way Foundation, Union for Reform

44

Judaism, Women’s League for

7

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1

Conservative Judaism, and Women

2

of Reform Judaism in support of

3

Plaintiff-Appellee.

4

5

Sharon L. Nelles, Sullivan &

6

Cromwell LLP, New York, NY (H.

7

Rodgin Cohen, Mitchell S. Eitel,

8

William H. Wagener, Heather H.

9

Volik, Diana G. Iskelov,

10

Sullivan & Cromwell LLP, New

11

York, NY and Laura W. Brill and

12

Meaghan Field, Kendall Brill &

13

Klieger LLP, Los Angeles, CA, on

14

the brief), for amici curiae

15

Professors of Family and Child

16

Welfare Law in support of

17

Plaintiff-Appellee.

18

19

Eric T. Schneiderman, Attorney

20

General, State of New York, New

21

York, NY (William H. Sorrell,

22

Attorney General, State of

23

Vermont, Montpelier, VT and

24

George Jepsen, Attorney General,

25

State of Connecticut, Hartford,

26

CT, on the brief) for amici

27

curiae States of New York,

28

Vermont, and Connecticut in

29

support of neither party.

30

31

Melanie Sloan, Citizens for

32

Responsibility and Ethics in

33

Washington, Washington, DC,

34

(Anne L. Weismann, Citizens for

35

Responsibility and Ethics in

36

Washington, Washington, DC and

37

Alan B. Morrison, George

38

Washington Law School,

39

Washington, DC, on the brief),

40

for amicus curiae Citizens for

41

Responsibility and Ethics in

42

Washington in support of neither

43

party.

44

8

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1 DENNIS JACOBS, Chief Judge:

2

Plaintiff Edith Windsor sued as surviving spouse of a

3 same-sex couple that was married in Canada in 2007 and was

4 resident in New York at the time of her spouse’s death in

5 2009. Windsor was denied the benefit of the spousal

6 deduction for federal estate taxes under 26 U.S.C. § 2056(A)

7 solely because Section 3 of the Defense of Marriage Act

8 (“DOMA”), 1 U.S.C. § 7, defines the words “marriage” and

9 “spouse” in federal law in a way that bars the Internal

10 Revenue Service from recognizing Windsor as a spouse or the

11 couple as married. The text of § 3 is as follows:

12

In determining the meaning of any Act of Congress, or

13

of any ruling, regulation, or interpretation of the

14

various administrative bureaus and agencies of the

15

United States, the word “marriage” means only a legal

16

union between one man and one woman as husband and

17

wife, the word “spouse” refers only to a person of the

18

opposite sex who is a husband or a wife.

19 1 U.S.C. § 7. At issue is Windsor’s claim for a refund in

20 the amount of $363,053, which turns on the constitutionality

21 of that section of federal law.

22

For the reasons that follow we hold that:

23

I. Windsor has standing in this action because we

24 predict that New York, which did not permit same-sex

25 marriage to be licensed until 2011, would nevertheless have

9

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1 recognized Windsor and Thea Clara Spyer as married at the

2 time of Spyer’s death in 2009, so that Windsor was a

3 surviving spouse under New York law.

4

II. Windsor’s suit is not foreclosed by Baker v.

5 Nelson, 409 U.S. 810 (1971), which held that the use of the

6 traditional definition of marriage for a state’s own

7 regulation of marriage status did not violate equal

8 protection.

9

III. Section 3 of DOMA is subject to intermediate

10 scrutiny under the factors enumerated in City of Cleburn v.

11 Cleburn Living Center, 473 U.S. 431 (1985), and other cases.

12

IV. The statute does not withstand that review.

13

* * *

14

On June 6, 2012, the United States District Court for

15 the Southern District of New York (Jones, J.) granted

16 summary judgment in favor of Windsor in a thorough opinion.

17 Windsor v. United States, 833 F. Supp. 2d 394 (S.D.N.Y.

18 2012). The court ruled that Section 3 of DOMA violated the

19 equal protection because there was no rational basis to

20 support it. Id. at 406. “We review a district court's

21 grant of summary judgment de novo, construing the record in

22 the light most favorable to the nonmoving party.” Church of

10

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1 American Knights of the Ku Klux Klan v. Kerik, 356 F.3d 197,

2 203 (2d Cir. 2004).

3

A preliminary issue concerning alignment of the parties

4 on appeal has been presented by motion. The United States,

5 initially named as the sole defendant, conducted its defense

6 of the statute in the district court up to a point. On

7 February 23, 2011, three months after suit was filed, the

8 Department of Justice declined to defend the Act thereafter,

9 and members of Congress took steps to support it. The

10 Bipartisan Legal Advisory Group of the United States House

11 of Representatives (“BLAG”) retained counsel and since then

12 has taken the laboring oar in defense of the statute. The

13 United States remained active as a party, switching sides to

14 advocate that the statute be ruled unconstitutional.

15

Following the district court’s decision, BLAG filed a

16 notice of appeal, as did the United States in its role as

17 nominal defendant. BLAG moved this Court at the outset to

18 strike the notice of appeal filed by the United States and

19 to realign the appellate parties to reflect that the United

20 States prevailed in the result it advocated in the district

21 court. The motion is denied. Notwithstanding the

22 withdrawal of its advocacy, the United States continues to

11

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1 enforce Section 3 of DOMA, which is indeed why Windsor does

2 not have her money. The constitutionality of the statute

3 will have a considerable impact on many operations of the

4 United States. See INS v. Chadha, 462 U.S. 919, 931 (1983)

5 (“When an agency of the United States is a party to a case

6 in which the Act of Congress it administers is held

7 unconstitutional, it is an aggrieved party for purposes of

8 taking an appeal . . . . The agency’s status as an aggrieved

9 party . . . is not altered by the fact that the Executive

10 may agree with the holding that the statute in question is

11 unconstitutional.”).

12

13

DISCUSSION

14

I

15

For the purpose of federal estate taxes, the law of the

16 state of domicile ordinarily determines whether two persons

17 were married at the time of death. Eccles v. Comm’r, 19

18 T.C. 1049, 1051, 1053-54 (1953); Rev. Rul. 58-66, 1958-1

19 C.B. 60 (“The marital status of individuals as determined

20 under state law is recognized in the administration of the

21 Federal income tax laws.”). At the time of Spyer’s death in

22 2009, New York did not yet license same-sex marriage itself.

12

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1 A separate question–-decisive for standing in this case–-is

2 whether in 2009 New York recognized same-sex marriages

3 entered into in other jurisdictions. That question was

4 presented to the New York Court of Appeals in Godfrey v.

5 Spano, 13 N.Y.3d 358 (2009). However, the court was able to

6 resolve that case on other grounds, finding “it unnecessary

7 to reach defendants' argument that New York's common-law

8 marriage recognition rule is a proper basis for the

9 challenged recognition of out-of-state same-sex marriages.”

10 Id. at 377.

11

When we are faced with a question of New York law that

12 is decisive but unsettled, we may “predict” what the state’s

13 law is, consulting any rulings of its intermediate appellate

14 courts and trial courts, or we may certify the question to

15 the New York Court of Appeals. See State Farm Mut. Auto.

16 Ins. Co. v. Madella, 372 F.3d 500, 505 (2d Cir. 2004). BLAG

17 urges that we certify this question, observing that this is

18 an option that we have and that the district court did not.

19 We decline to certify.

20

First, the Court of Appeals has signaled its

21 disinclination to decide this very question. When it

22 elected to decide Godfrey on an alternative sufficient

13

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1 ground, the Court of Appeals expressed a preference and

2 expectation that the issue would be decided by the New York

3 legislature: “[w]e . . . hope that the Legislature will

4 address this controversy.” Godfrey, 13 N.Y.3d at 377. We

5 hesitate to serve up to the Court of Appeals a question that

6 it is reluctant to answer for a prudential reason.

7

Second, rulings of New York’s intermediate appellate

8 courts are useful and unanimous on this issue. It is a

9 “well-established principle that the ruling of an

10 intermediate appellate state court is a datum for

11 ascertaining state law which is not to be disregarded by a

12 federal court unless it is convinced by other persuasive

13 data that the highest court of the state would decide

14 otherwise.” Statharos v. New York City Taxi and Limousine

15 Comm'n, 198 F.3d 317, 321 (2d Cir. 1999) (internal quotation

16 marks and ellipsis omitted). Three of New York’s four

17 appellate divisions have concluded that New York recognized

18 foreign same-sex marriages before the state passed its

19 marriage statute in 2011. See In re Estate of Ranftle, 81

20 A.D.3d 566 (1st Dep't 2011) (Windsor’s home Department,

21 recognizing a 2008 Canadian marriage); Lewis v. N.Y. State

22 Dep't of Civil Serv., 872 N.Y.S.2d 578 (3rd Dep’t 2009),

14

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1 aff'd on other grounds sub nom. Godfrey, 13 N.Y.3d 358;

2 Martinez v. Cnty. of Monroe, 850 N.Y.S.2d 740 (4th Dep’t

3 2008). Two of these cases, Lewis and Martinez, were decided

4 before Spyer died on February 5, 2009. Given the consistent

5 view of these decisions, we see no need to seek guidance

6 here. Because Windsor’s marriage would have been recognized

7 under New York law at the time of Spyer’s death, she has

8 standing.

9

10

II

11

In Baker v. Nelson, an appeal from a Minnesota Supreme

12 Court decision finding no right to same-sex marriage, the

13 Supreme Court issued a summary dismissal “for want of a

14 substantial federal question.” 409 U.S. 810 (1971). The

15 Minnesota Supreme Court had held that “[t]he equal

16 protection clause of the Fourteenth Amendment, like the due

17 process clause, is not offended by the state's

18 classification of persons authorized to marry.” Baker v.

19 Nelson, 291 Minn. 310, 313 (Minn. 1971). According to BLAG,

20 Baker compels the inference that Congress may prohibit same-

21 sex marriage in the same way under federal law without

22 offending the Equal Protection Clause. We disagree.

15

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1

“The Supreme Court has long recognized that the

2 precedential value of a summary dismissal is limited to ‘the

3 precise issues presented and necessarily decided by’ the

4 dismissal.” Alexander v. Cahill, 598 F.3d 79, 89 n.7 (2d

5 Cir. 2010) (quoting Mandell v. Bradley, 432 U.S. 173, 176

6 (1977)). The question whether the federal government may

7 constitutionally define marriage as it does in Section 3 of

8 DOMA is sufficiently distinct from the question in Baker:

9 whether same-sex marriage may be constitutionally restricted

10 by the states. After all, Windsor and Spyer were actually

11 married in this case, at least in the eye of New York, where

12 they lived. Other courts have likewise concluded that Baker

13 does not control equal protection review of DOMA for these

14 reasons.1

1 See Massachusetts v. U.S. Dep’t of HHS, 682 F.3d 1, 8 (1st Cir. 2012) (finding that Baker permitted equal protection review so long as arguments did not “rest on a constitutional right to same-sex marriage”); Windsor, 833 F. Supp. 2d at 399-400 (“The case before the Court does not present the same issue as that presented in Baker. . . . Accordingly, after comparing the issues in Baker and those in the instant case, the Court does not believe that Baker ‘necessarily decided’ the question of whether DOMA violates the Fifth Amendment's Equal Protection Clause.”); Pedersen v. Office of Pers. Mmgmt., No. 3:10-cv-1750, 2012 WL 3113883, at *11 (D. Conn. July 31, 2012) (“DOMA impacts federal benefits and obligations, but does not prohibit a state from authorizing or forbidding same-sex marriage, as was the case in Baker.”); Golinski v. U.S. Office of Pers. Mgmt., 824 F. Supp. 2d 968, 982 n.5
16

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1

Even if Baker might have had resonance for Windsor’s

2 case in 1971, it does not today. “‘[I]nferior federal

3 courts had best adhere to the view that if the Court has

4 branded a question as unsubstantial, it remains so except

5 when doctrinal developments indicate otherwise.’” Hicks v.

6 Miranda, 422 U.S. 332, 344 (1975) (quoting Port Auth.

7 Bondholders Protective Comm. v. Port of N.Y. Auth., 387 F.2d

8 259, 263 n.3 (2d Cir. 1967) (Friendly, J.)) (emphasis

9 added). In the forty years after Baker, there have been

10 manifold changes to the Supreme Court’s equal protection

11 jurisprudence.

12

When Baker was decided in 1971, “intermediate scrutiny”

13 was not yet in the Court’s vernacular. See Craig v. Boren,

14 429 U.S. 190, 218 (1976) (Rehnquist, J., dissenting)

15 (coining “intermediate level scrutiny”). Classifications

(N.D. Cal. 2012) (“The failure of the federal government to recognize Ms. Golinski's marriage and to provide benefits does not alter the fact that she is married under state law.”); Dragovich v. U.S. Dept. of Treasury, No. 4:10-cv01564-CW, 2012 WL 1909603, at *6-7 (N.D. Cal. May 24, 2012); Smelt v. Cnty of Orange, 374 F. Supp. 2d. 861, 872-74 (C.D. Cal. 2005), vacated in part on other grounds, 447 F.3d 673 (9th Cir. 2006); In re Kandu, 315 B.R. 123, 135-38 (Bankr. W.D. Wash. 2004); see also Perry v. Brown, 671 F.3d 1052, 1082 n. 14 (9th Cir. 2012) (finding that Baker did not preempt consideration of Proposition 8 case, because “the question of the constitutionality of a state's ban on same-sex marriage” was not before the court) (emphasis added).
17

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1 based on illegitimacy and sex were not yet deemed quasi2 suspect. See Lalli v. Lalli, 439 U.S. 259, 264-65, 275 3 (1982) (applying intermediate scrutiny to a classification 4 based on illegitimacy, and describing how heightened 5 scrutiny had been used for such classifications starting in 6 1976); Frontiero v. Richardson, 411 U.S. 677, 682 (1973) 7 (plurality opinion) (identifying sex as a suspect class); 8 Boren, 429 U.S. at 197-98 (applying intermediate scrutiny to 9 a classification based on sex); United States v. Virginia, 10 518 U.S. 515, 575 (1996) (Scalia, J., dissenting) 11 (summarizing that sex-based classifications were analyzed 12 with rational basis review before the 1970's).2 The Court 13 had not yet ruled that “a classification of [homosexuals] 14 undertaken for its own sake” actually lacked a rational 15 basis. Romer v. Evans, 517 U.S. 620, 635 (1996). And, in 16 1971, the government could lawfully “demean [homosexuals’] 17 existence or control their destiny by making their private 18 sexual conduct a crime.” Lawrence v. Texas, 539 U.S. 558, 19 574, 578 (2003) (noting that there was a “tenable” equal
2 While other classifications have been deemed quasisuspect or suspect over the years, the decisions to add sex and illegitimacy are especially helpful in analyzing whether the classification made in DOMA merits intermediate scrutiny.
18

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1 protection argument against such laws, but choosing instead

2 to overturn Bowers v. Hardwick, 478 U.S. 186 (1986)). These

3 doctrinal changes constitute another reason why Baker does

4 not foreclose our disposition of this case.

5

The First Circuit has suggested in dicta that

6 recognition of a new suspect classification in this context

7 would “imply[] an overruling of Baker.” See Massachusetts,

8 682 F.3d at 9. We disagree for two reasons that the First

9 Circuit did not discuss. First, when it comes to marriage,

10 legitimate regulatory interests of a state differ from those

11 of the federal government. Regulation of marriage is “an

12 area that has long been regarded as a virtually exclusive

13 province of the States.” Sosna v. Iowa, 419 U.S. 393, 404

14 (1975). It has for very long been settled that “[t]he

15 State . . . has [the] absolute right to prescribe the

16 conditions upon which the marriage relation between its own

17 citizens shall be created, and the causes for which it may

18 be dissolved.” Pennoyer v. Neff, 95 U.S. 714, 734-35

19 (1878), overruled on other grounds by Shaffer v. Heitner,

20 433 U.S. 186 (1977). Therefore, our heightened scrutiny

21 analysis of DOMA’s marital classification under federal law

22 is distinct from the analysis necessary to determine whether

23 the marital classification of a state would survive such

24 scrutiny.

19

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1

Second, the Supreme Court’s decision to apply rational

2 basis review in Romer does not imply to us a refusal to

3 recognize homosexuals as a quasi-suspect class. See

4 Massachusetts, 682 F.3d at 9. The litigants in Romer had

5 abandoned their quasi-suspect argument after the trial court

6 decision. See Romer, 517 U.S. at 640 n.1 (Scalia, J.,

7 dissenting). We are satisfied, for these reasons, that

8 Baker has no bearing on this case.

9

10

III

11

“In deciding an equal protection challenge to a statute

12 that classifies persons for the purpose of receiving

13 [federal] benefits, we are required, so long as the

14 classifications are not suspect or quasi-suspect and do not

15 infringe fundamental constitutional rights, to uphold the

16 legislation if it bears a rational relationship to a

17 legitimate governmental objective.” Thomas v. Sullivan, 922

18 F.2d 132, 136 (2d Cir. 1990). Of course, “‘a

19 bare . . . desire to harm a politically unpopular group

20 cannot constitute a legitimate government interest.’” Romer

21 v. Evans, 517 U.S. 620, 634-35 (1996) (quoting Dep’t. of

22 Agric. v. Moreno, 413 U.S. 528, 534 (1973)). So while

23 rational basis review is indulgent and respectful, it is not

20

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1 meant to be “toothless.” Schweiker v. Wilson, 450 U.S. 221,

2 234 (1981) (quoting Mathews v. Lucas, 427 U.S. 495, 510

3 (1976)).

4

The district court ruled that DOMA violated the Equal

5 Protection Clause for want of a rational basis. Windsor,

6 833 F. Supp. 2d at 406. But the existence of a rational

7 basis for Section 3 of DOMA is closely argued. BLAG and its

8 amici proffer several justifications that alone or in tandem

9 are said to constitute sufficient reason for the enactment.

10 Among these reasons are protection of the fisc, uniform

11 administration of federal law notwithstanding recognition of

12 same-sex marriage in some states but not others, the

13 protection of traditional marriage generally, and the

14 encouragement of “responsible” procreation.

15

Windsor and her amici vigorously argue that DOMA is not

16 rationally related to any of these goals. Rational basis

17 review places the burden of persuasion on the party

18 challenging a law, who must disprove “‘every conceivable

19 basis which might support it.’” Heller v. Doe, 509 U.S.

20 312, 320 (1993) (quoting Lehnhausen v. Lake Shore Auto Parts

21 Co., 410 U.S. 356, 364 (1973)). So a party urging the

22 absence of any rational basis takes up a heavy load. That

23 would seem to be true in this case--the law was passed by

21

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1 overwhelming bipartisan majorities in both houses of

2 Congress; it has varying impact on more than a thousand

3 federal laws; and the definition of marriage it affirms has

4 been long-supported and encouraged.

5

On the other hand, several courts have read the Supreme

6 Court’s recent cases in this area to suggest that rational

7 basis review should be more demanding when there are

8 “historic patterns of disadvantage suffered by the group

9 adversely affected by the statute.” See Massachusetts, 682

10 F.3d at 10-11; Able v. U.S., 155 F.3d 628, 634 (2d Cir.

11 1998); United States v. Then, 56 F.3d 464, 468 (2d Cir.

12 1995) (Calabresi, J., concurring). Proceeding along those

13 lines, the district court in this case and the First Circuit

14 in Massachusetts both adopted more exacting rational basis

15 review for DOMA. See Massachusetts, 682 F.3d at 11

16 (describing its “more careful assessment”); Windsor, 833 F.

17 Supp. 2d at 402 (noting that “rational basis analysis can

18 vary by context”). At argument, counsel for BLAG wittily

19 characterized this form of analysis as “rational basis plus

20 or intermediate scrutiny minus.” Oral Arg. Tr. 16:10-12.

21

The Supreme Court has not expressly sanctioned such

22 modulation in the level of rational basis review; discussion

23 pro and con has largely been confined to concurring and

22

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1 dissenting opinions.3 We think it is safe to say that there

2 is some doctrinal instability in this area.

3

Fortunately, no permutation of rational basis review is

4 needed if heightened scrutiny is available, as it is in this

5 case. We therefore decline to join issue with the dissent,

6 which explains why Section 3 of DOMA may withstand rational

7 basis review.

3 Compare Lawrence, 539 U.S. at 580 (O’Connor, J., concurring) (“When a law exhibits such a desire to harm a politically unpopular group, we have applied a more searching form of rational basis review to strike down such laws under the Equal Protection Clause.”) and U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 188 (1980) (Brennan, J., dissenting) (“In other cases, however, the courts must probe more deeply.”) with City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 459-60 (1985) (Marshall, J., concurring in part and dissenting in part) (“The refusal to acknowledge that something more than minimum rationality review is at work here is, in my view, unfortunate . . . . [B]y failing to articulate the factors that justify today's ‘second order’ rational-basis review, the Court provides no principled foundation for determining when more searching inquiry is to be invoked. Lower courts are thus left in the dark on this important question, and this Court remains unaccountable for its decisions employing, or refusing to employ, particularly searching scrutiny.”) and Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 321 (1976) (Marshall, J., dissenting) (“[T]he Court has rejected, albeit Sub silentio, its most deferential statements of the rationality standard in assessing the validity under the Equal Protection Clause of much noneconomic legislation.”). But see U.S. R.R. Ret. Bd., 449 U.S. at 176 n.10 (“The comments in the dissenting opinion about the proper cases for which to look for the correct statement of the equal protection rational-basis standard, and about which cases limit earlier cases, are just that: comments in a dissenting opinion.”).
23

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1

Instead, we conclude that review of Section 3 of DOMA

2 requires heightened scrutiny. The Supreme Court uses

3 certain factors to decide whether a new classification

4 qualifies as a quasi-suspect class. They include: A)

5 whether the class has been historically “subjected to

6 discrimination,” Bowen v. Gilliard, 483 U.S. 587, 602

7 (1987); B) whether the class has a defining characteristic

8 that “frequently bears [a] relation to ability to perform or

9 contribute to society,” Cleburne, 473 U.S. at 440-41; C)

10 whether the class exhibits “obvious, immutable, or

11 distinguishing characteristics that define them as a

12 discrete group;” Bowen, 483 U.S. at 602; and D) whether the

13 class is “a minority or politically powerless.” Id.

14 Immutability and lack of political power are not strictly

15 necessary factors to identify a suspect class. See

16 Cleburne, 473 U.S. at 442 n.10 (“‘[T]here’s not much left of

17 the immutability theory, is there?’”) (quoting J. Ely,

18 Democracy and Distrust 150 (1980)); Cleburne, 473 U.S. at

19 472 n.24 (Marshall, J., concurring in part and dissenting in

20 part) (“The ‘political powerlessness’ of a group may be

21 relevant, but that factor is neither necessary, as the

22 gender cases demonstrate, nor sufficient, as the example of

23 minors illustrates.”); Nyquist v. Mauclet, 432 U.S. 1, 9

24

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1 n.11 (1977) (rejecting the argument that alienage did not

2 deserve strict scrutiny because it was not immutable); see

3 also Pedersen, 2012 WL 3113883, at *13; Golinski, 824 F.

4 Supp. 2d at 983; Kerrigan v. Comm’r of Pub. Health, 289

5 Conn. 135, 167-68 (2008). Nevertheless, immutability and

6 political power are indicative, and we consider them here.

7 In this case, all four factors justify heightened scrutiny:

8 A) homosexuals as a group have historically endured

9 persecution and discrimination; B) homosexuality has no

10 relation to aptitude or ability to contribute to society; C)

11 homosexuals are a discernible group with non-obvious

12 distinguishing characteristics, especially in the subset of

13 those who enter same-sex marriages; and D) the class remains

14 a politically weakened minority.

15

A) History of Discrimination

16

It is easy to conclude that homosexuals have suffered a

17 history of discrimination. Windsor and several amici labor

18 to establish and document this history, but we think it is

19 not much in debate. Perhaps the most telling proof of

20 animus and discrimination against homosexuals in this

21 country is that, for many years and in many states,

22 homosexual conduct was criminal. These laws had the

23 imprimatur of the Supreme Court. See Bowers, 478 U.S. at

25

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1 196; see also Lawrence, 539 U.S. at 578 (noting that such

2 laws “demean[ed homosexuals’] existence [and] control[led]

3 their destiny”).

4

BLAG argues that discrimination against homosexuals

5 differs from that against racial minorities and women

6 because “homosexuals as a class have never been politically

7 disenfranchised.” True, but the difference is not decisive.

8 Citizens born out of wedlock have never been inhibited in

9 voting; yet the Supreme Court has applied intermediate

10 scrutiny in cases of illegitimacy. See generally Lalli v.

11 Lalli, 439 U.S. 259 (1982). Second, BLAG argues that,

12 unlike protected classes, homosexuals have not “suffered

13 discrimination for longer than history has been recorded.”

14 But whether such discrimination existed in Babylon is

15 neither here nor there. BLAG concedes that homosexuals have

16 endured discrimination in this country since at least the

17 1920s. Ninety years of discrimination is entirely

18 sufficient to document a “history of discrimination.” See

19 Pedersen, 2012 WL 3113883 at *21 (summarizing that “the

20 majority of cases which have meaningfully considered the

21 question [have] likewise held that homosexuals as a class

22 have experienced a long history of discrimination”).

23

B) Relation to Ability

26

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1

Also easy to decide in this case is whether the class

2 characteristic “frequently bears [a] relation to ability to

3 perform or contribute to society.” Cleburne, 473 U.S. at

4 440-41; see Frontiero, 411 U.S. at 686 (“[W]hat

5 differentiates sex from such non-suspect statuses as

6 intelligence or physical disability, and aligns it with the

7 recognized suspect criteria, is that the sex characteristic

8 frequently bears no relation to ability to perform or

9 contribute to society.”). In Cleburne, the Supreme Court

10 ruled that heightened scrutiny was inappropriate because

11 “those who are mentally retarded have a reduced ability to

12 cope with and function in the everyday world.” 473 U.S. at

13 442. The Court employed similar reasoning with respect to

14 age classifications, finding that heightened scrutiny was

15 not appropriate for mandatory retirement laws because

16 “physical ability generally declines with age” and such

17 requirements reasonably “serve[d] to remove

18 from . . . service those whose fitness for uniformed work

19 presumptively has diminished with age.” Murgia, 427 U.S. at

20 316.

21

There is no such impairment here. There are some

22 distinguishing characteristics, such as age or mental

23 handicap, that may arguably inhibit an individual's ability

27

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1 to contribute to society, at least in some respect. But

2 homosexuality is not one of them. The aversion homosexuals

3 experience has nothing to do with aptitude or performance.

4

We do not understand BLAG to argue otherwise. Rather,

5 BLAG suggests that the proper consideration is whether “the

6 classification turns on ‘distinguishing characteristics

7 relevant to interests the State has the authority to

8 implement,’” quoting Cleburne, 473 U.S. at 441. Thus, BLAG

9 urges that same-sex couples have a diminished ability to

10 discharge family roles in procreation and the raising of

11 children. BLAG cites no precedential application of that

12 standard to support its interpretation, and it is

13 inconsistent with actual cases. See, e.g., Frontiero, 411

14 U.S. at 686 (distinguishing that sex, unlike intelligence,

15 has no bearing on one’s general ability to contribute to

16 society). In any event, the abilities or inabilities cited

17 by BLAG bear upon whether the law withstands scrutiny (the

18 second step of analysis) rather than upon the level of

19 scrutiny to apply. Cf. Clark v. Jeter, 486 U.S. 456, 461

20 (1988) (defining the test for intermediate scrutiny as

21 whether a classification is “substantially related to an

22 important government interest”).

23

28

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1

C) Distinguishing Characteristic

2

We conclude that homosexuality is a sufficiently

3 discernible characteristic to define a discrete minority

4 class. See Rowland v. Mad River Local School Dist.,

5 Montgomery County, Ohio, 470 U.S. 1009, 1014 (1985)

6 (Brennan, J., dissenting from denial of certiorari)

7 (“[H]omosexuals constitute a significant and insular

8 minority of this country’s population.”).

9

This consideration is often couched in terms of

10 “immutability.” BLAG and its amici argue that sexual

11 orientation is not necessarily fixed, suggesting that it may

12 change over time, range along a continuum, and overlap (for

13 bisexuals). But the test is broader: whether there are

14 “obvious, immutable, or distinguishing characteristics that

15 define . . . a discrete group.” See Bowen, 483 U.S. at 602

16 (emphasis added). No “obvious badge” is necessary. See

17 Mathews v. Lucas, 427 U.S. 495, 506 (1976). Classifications

18 based on alienage, illegitimacy, and national origin are all

19 subject to heightened scrutiny, Cleburne, 473 U.S. at 440-

20 41, even though these characteristics do not declare

21 themselves, and often may be disclosed or suppressed as a

29

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1 matter of preference.4 What seems to matter is whether the

2 characteristic of the class calls down discrimination when

3 it is manifest.

4

Thus a person of illegitimate birth may keep that

5 status private, and ensure that no outward sign discloses

6 the status in social settings or in the workplace, or on the

7 subway. But when such a person applies for Social Security

8 benefits on the death of a parent (for example), the

9 illegitimate status becomes manifest. The characteristic is

10 necessarily revealed in order to exercise a legal right.

11 Similarly, sexual preference is necessarily disclosed when

4 Alienage and illegitimacy are actually subject to change. See Pedersen, 2012 WL 3113883 at *23 (“The Supreme Court has held that resident aliens constitute a suspect class despite the ability to opt out of the class voluntarily. Additionally, one's status as illegitimate may be subject to change and is therefore not a strictly immutable characteristic.”) (internal citation omitted); see also Watkins v. U.S. Army, 875 F.2d 699, 726 (9th Cir. 1989) (Norris, J., concurring) (“It is clear that by ‘immutability’ the [Supreme] Court has never meant strict immutability in the sense that members of the class must be physically unable to change or mask the trait defining their class. People can have operations to change their sex. Aliens can ordinarily become naturalized citizens. The status of illegitimate children can be changed. People can frequently hide their national origin by changing their customs, their names, or their associations. . . . At a minimum, then, the Supreme Court is willing to treat a trait as effectively immutable if changing it would involve great difficulty, such as requiring a major physical change or a traumatic change of identity.”).
30

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1 two persons of the same sex apply for a marriage license (as

2 they are legally permitted to do in New York), or when a

3 surviving spouse of a same-sex marriage seeks the benefit of

4 the spousal deduction (as Windsor does here).

5

BLAG argues that a classification based on sexual

6 orientation would be more “amorphous” than discrete. It may

7 be that the category exceeds the number of persons whose

8 sexual orientation is outwardly “obvious, immutable, or

9 distinguishing,” and who thereby predictably undergo

10 discrimination. But that is surely also true of

11 illegitimacy and national origin. Again, what matters here

12 is whether the characteristic invites discrimination when it

13 is manifest.

14

The class affected by Section 3 of DOMA is composed

15 entirely of persons of the same sex who have married each

16 other. Such persons constitute a subset of the larger

17 category of homosexuals; but as counsel for BLAG conceded at

18 argument, there is nothing amorphous, capricious, or

19 tentative about their sexual orientation. Oral Arg. Tr.

20 12:11-14. Married same-sex couples like Windsor and Spyer

21 are the population most visible to the law, and they are

22 foremost in mind when reviewing DOMA’s constitutionality.

23

31

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1

We therefore conclude that sexual orientation is a

2 sufficiently distinguishing characteristic to identify the

3 discrete minority class of homosexuals.

4

D) Political Power

5

Finally, we consider whether homosexuals are a

6 politically powerless minority. See Bowen, 483 U.S. at 602.

7 Without political power, minorities may be unable to protect

8 themselves from discrimination at the hands of the

9 majoritarian political process. We conclude that

10 homosexuals are still significantly encumbered in this

11 respect.

12

The question is not whether homosexuals have achieved

13 political successes over the years; they clearly have. The

14 question is whether they have the strength to politically

15 protect themselves from wrongful discrimination. When the

16 Supreme Court ruled that sex-based classifications were

17 subject to heightened scrutiny in 1973, the Court

18 acknowledged that women had already achieved major political

19 victories. See Frontiero, 411 U.S. at 685. The Nineteenth

20 Amendment had been ratified in 1920, and Title VII had

21 already outlawed sex-based employment. See 78 Stat. 253.

22 The Court was persuaded nevertheless that women still lacked

23 adequate political power, in part because they were “vastly

32

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1 underrepresented in this Nation’s decisionmaking councils,”

2 including the presidency, the Supreme Court, and the

3 legislature. Frontiero, 411 U.S. at 686 n.17.

4

There are parallels between the status of women at the

5 time of Frontiero and homosexuals today: their position “has

6 improved markedly in recent decades,” but they still “face

7 pervasive, although at times more subtle,

8 discrimination . . . in the political arena.” Frontiero,

9 411 U.S. at 685-86. It is difficult to say whether

10 homosexuals are “under-represented” in positions of power

11 and authority without knowing their number relative to the

12 heterosexual population. But it is safe to say that the

13 seemingly small number of acknowledged homosexuals so

14 situated is attributable either to a hostility that excludes

15 them or to a hostility that keeps their sexual preference

16 private--which, for our purposes, amounts to much the same

17 thing. Moreover, the same considerations can be expected to

18 suppress some degree of political activity by inhibiting the

19 kind of open association that advances political agendas.

20 See Rowland, 470 U.S. at 1014 (Brennan, J., dissenting from

21 denial of certiorari) (“Because of the immediate and severe

22 opprobrium often manifested against homosexuals once so

23 identified publicly, members of this group are particularly

33

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1 powerless to pursue their rights openly in the political

2 arena.”).

3

In sum, homosexuals are not in a position to adequately

4 protect themselves from the discriminatory wishes of the

5 majoritarian public.

6

* * *

7

Analysis of these four factors supports our conclusion

8 that homosexuals compose a class that is subject to

9 heightened scrutiny. We further conclude that the class is

10 quasi-suspect (rather than suspect) based on the weight of

11 the factors and on analogy to the classifications recognized

12 as suspect and quasi-suspect. While homosexuals have been

13 the target of significant and long-standing discrimination

14 in public and private spheres, this mistreatment “is not

15 sufficient to require ‘our most exacting scrutiny.’”

16 Trimble v. Gordon, 430 U.S. 762, 767 (1977) (quoting Mathews

17 v. Lucas, 427 U.S. 495, 506 (1976)).

18

The next step is to determine whether DOMA survives

19 intermediate scrutiny review.

20

21

IV

22

To withstand intermediate scrutiny, a classification

23 must be “substantially related to an important government
34

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1 interest.” Clark v. Jeter, 486 U.S. 456, 461 (1988).

2 “Substantially related” means that the explanation must be

3 “‘exceedingly persuasive.’” United States v. Virginia, 518

4 U.S. 515, 533 (1996) (quoting Mississippi Univ. for Women v.

5 Hogan, 458 U.S. 718, 724 (1982)). “The justification must

6 be genuine, not hypothesized or invented post hoc in

7 response to litigation.” Id.

8

BLAG advances two primary arguments for why Congress

9 enacted DOMA. First, it cites “unique federal interests,”

10 which include maintaining a consistent federal definition of

11 marriage, protecting the fisc, and avoiding “the unknown

12 consequences of a novel redefinition of a foundational

13 social institution.” Second, BLAG argues that Congress

14 enacted the statute to encourage “responsible procreation.”

15 At argument, BLAG’s counsel all but conceded that these

16 reasons for enacting DOMA may not withstand intermediate

17 scrutiny. Oral Arg. Tr. 16:24-17:6.

18

A) Maintaining a “Uniform Definition” of Marriage

19

Statements in the Congressional Record express an

20 intent to enforce uniform eligibility for federal marital

21 benefits by insuring that same-sex couples receive--or

35

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1 lose--the same federal benefits across all states.5

2 However, the emphasis on uniformity is suspicious because

3 Congress and the Supreme Court have historically deferred to

4 state domestic relations laws, irrespective of their

5 variations.

6

To the extent that there has ever been “uniform” or

7 “consistent” rule in federal law concerning marriage, it is

8 that marriage is “a virtually exclusive province of the

9 States.” Sosna, 419 U.S. at 404. As the Supreme Court has

10 emphasized, “the states, at the time of the adoption of the

11 Constitution, possessed full power over the subject of

12 marriage and divorce. . . . [T]he Constitution delegated no

13 authority to the Government of the United States on the

14 subject of marriage and divorce.” Haddock v. Haddock, 201

15 U.S. 562, 575 (1906) (emphasis added), overruled on other

16 grounds by Williams v. State of North Carolina, 317 U.S. 287

17 (1942). DOMA was therefore an unprecedented intrusion “into

18 an area of traditional state regulation.” Massachusetts,

19 682 F.3d at 13. This is a reason to look upon Section 3 of

5 For example, certain legislators were concerned that it would be administratively difficult to deal with benefit changes as same-sex couples moved between states with different policies on same-sex marriage. See, e.g., 150 Cong. Rec. 15318 (2004) (Sen. Inhofe).
36

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1 DOMA with a cold eye. “The absence of precedent . . . is

2 itself instructive; ‘[d]iscriminations of an unusual

3 character especially suggest careful consideration to

4 determine whether they are obnoxious to the constitutional

5 provision.’” Romer v. Evans, 517 U.S. 620, 633 (1996)

6 (quoting Louisville Gas & Elec. Co. v. Coleman, 277 U.S. 32,

7 37-38 (1928)).

8

Moreover, DOMA’s sweep arguably creates more discord

9 and anomaly than uniformity, as many amici observe. Because

10 DOMA defined only a single aspect of domestic relations law,

11 it left standing all other inconsistencies in the laws of

12 the states, such as minimum age, consanguinity, divorce, and

13 paternity. See Br. of Amici Curiae Family Law Professors

14 Supporting Petitioner at 12-13 (noting that “the federal

15 government has always accepted the states’ different ways of

16 defining parental status” and offering numerous examples of

17 critical differences in state parental policies).

18

The uniformity rationale is further undermined by

19 inefficiencies that it creates. As a district court in this

20 Circuit found, it was simpler--and more consistent--for the

21 federal government to ask whether a couple was married under

22 the law of the state of domicile, rather than adding “an

23 additional criterion, requiring the federal government to

37

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1 identify and exclude all same-sex marital unions from

2 federal recognition.” Pedersen, 2012 WL 3113883 at *48; see

3 Golinski, 824 F. Supp. 2d at 1001-02 (“The passage of DOMA

4 actually undermined administrative consistency by requiring

5 that the federal government, for the first time, discern

6 which state definitions of marriage are entitled to federal

7 recognition and which are not.”).

8

Because DOMA is an unprecedented breach of longstanding

9 deference to federalism that singles out same-sex marriage

10 as the only inconsistency (among many) in state law that

11 requires a federal rule to achieve uniformity, the

12 rationale premised on uniformity is not an exceedingly

13 persuasive justification for DOMA.

14

B) Protecting the Fisc

15

Another professed goal of Congress is to save

16 government resources by limiting the beneficiaries of

17 government marital benefits. H.R. Rep. No. 104-664, at 18

18 (1996), reprinted in 1996 U.S.C.C.A.N. 2905, 2922. Fiscal

19 prudence is undoubtedly an important government interest.

20 Windsor and certain amici contest whether the measure will

21 achieve a net benefit to the Treasury; but in matters of the

22 federal budget, Congress has the prerogative to err (if

23 error it is), and cannot be expected to prophesy the future

38

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1 accurately. But the Supreme Court has held that “[t]he

2 saving of welfare costs cannot justify an otherwise

3 invidious classification.” Graham v. Richardson, 403 U.S.

4 365, 375 (1971) (quotation marks omitted). As the district

5 court observed, “excluding any arbitrarily chosen group of

6 individuals from a government program conserves government

7 resources.” Windsor, 833 F. Supp. 2d at 406 (quotation

8 marks).

9

Citing Bowen v. Owens, 476 U.S. 340, 348 (1986), BLAG

10 draws the distinction that DOMA did not withdraw benefits

11 from same-sex spouses; since DOMA was enacted before same-

12 sex marriage was permitted in any state, DOMA operated to

13 prevent the extension of benefits to people who never

14 enjoyed them. However, Bowen was decided on rational basis

15 grounds and did not involve an invidious classification.

16 Id. at 349-50. Moreover, DOMA is properly considered a

17 benefit withdrawal in the sense that it functionally

18 eliminated longstanding federal recognition of all marriages

19 that are properly ratified under state law--and the federal

20 benefits (and detriments) that come with that recognition.

21

Furthermore, DOMA is so broad, touching more than a

22 thousand federal laws, that it is not substantially related

23 to fiscal matters. As amicus Citizens for Responsibility

39

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1 and Ethics in Washington demonstrates, DOMA impairs a number

2 of federal laws (involving bankruptcy and conflict-of-

3 interest) that have nothing to do with the public fisc. See

4 Br. of Amicus Curiae Citizens for Responsibility and Ethics

5 in Washington at 5-11, 18-23. DOMA transcends a legislative

6 intent to conserve public resources.

7

For these reasons, DOMA is not substantially related to

8 the important government interest of protecting the fisc.

9

C) Preserving a Traditional Understanding of Marriage

10

Congress undertook to justify DOMA as a measure for

11 preserving traditional marriage as an institution. 150

12 Cong. Rec. 14951. But “[a]ncient lineage of a legal concept

13 does not give [a law] immunity from attack for lacking a

14 rational basis.” Heller, 509 U.S. at 326. A fortiori,

15 tradition is hard to justify as meeting the more demanding

16 test of having a substantial relation to an important

17 government interest. Similar appeals to tradition were made

18 and rejected in litigation concerning anti-sodomy laws. See

19 Lawrence, 539 U.S. at 577-78 (“‘[T]he fact that the

20 governing majority in a State has traditionally viewed a

21 particular practice as immoral is not a sufficient reason

22 for upholding a law prohibiting the practice; neither

23 history nor tradition could save a law prohibiting

40

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1 miscegenation from constitutional attack.’”) (quoting

2 Bowers, 478 U.S. at 216 (Stevens, J., dissenting)) (emphasis

3 added).

4

Even if preserving tradition were in itself an

5 important goal, DOMA is not a means to achieve it. As the

6 district court found: “because the decision of whether

7 same-sex couples can marry is left to the states, DOMA does

8 not, strictly speaking, ‘preserve’ the institution of

9 marriage as one between a man and a woman.” Windsor, 833 F.

10 Supp. at 403.

11

Preservation of a traditional understanding of marriage

12 therefore is not an exceedingly persuasive justification for

13 DOMA.

14

D) Encouraging Responsible Procreation

15

Finally, BLAG presents three related reasons why DOMA

16 advances the goals of “responsible childrearing”: DOMA

17 subsidizes procreation because only opposite-sex couples can

18 procreate “naturally”; DOMA subsidizes biological parenting

19 (for more or less the same reason); and DOMA facilitates the

20 optimal parenting arrangement of a mother and a father. We

21 agree that promotion of procreation can be an important

22 government objective. But we do not see how DOMA is

23 substantially related to it.

41

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1

All three proffered rationales have the same defect:

2 they are cast as incentives for heterosexual couples,

3 incentives that DOMA does not affect in any way. DOMA does

4 not provide any incremental reason for opposite-sex couples

5 to engage in “responsible procreation.”6 Incentives for

6 opposite-sex couples to marry and procreate (or not) were

7 the same after DOMA was enacted as they were before.7 Other

8 courts have likewise been unable to find even a rational

9 connection between DOMA and encouragement of responsible

10 procreation and child-rearing. See Massachusetts, 682 F.3d

11 at 14-15 (underscoring the “lack of any demonstrated

12 connection between DOMA’s treatment of same-sex couples and

13 its asserted goal of strengthening the bonds and benefits to

14 society of heterosexual marriage”) (citations omitted);

15 Windsor, 833 F. Supp. at 404-05; Pedersen, 2012 WL 3113883,

16 at *40-43.

17

6 “[T]he argument that withdrawing the designation of ‘marriage’ from same-sex couples could on its own promote the strength or stability of opposite-sex marital relationships lacks any such footing in reality.” Perry v. Brown, 671 F.3d 1052, 1089 (9th Cir. 2012).
7 To the extent that BLAG is suggesting that Congress’ laws might actually influence sexual orientation, there is no evidence to support that claim (and it strikes us as farfetched).
42

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1

DOMA is therefore not substantially related to the

2 important government interest of encouraging procreation.

3

***

4

DOMA’s classification of same-sex spouses was not

5 substantially related to an important government interest.

6 Accordingly, we hold that Section 3 of DOMA violates equal

7 protection and is therefore unconstitutional.

8

9

V

10

Our straightforward legal analysis sidesteps the fair

11 point that same-sex marriage is unknown to history and

12 tradition. But law (federal or state) is not concerned with

13 holy matrimony. Government deals with marriage as a civil

14 status--however fundamental--and New York has elected to

15 extend that status to same-sex couples. A state may enforce

16 and dissolve a couple’s marriage, but it cannot sanctify or

17 bless it. For that, the pair must go next door.

18

19

CONCLUSION

20

For the foregoing reasons, we AFFIRM the grant of

21 Windsor’s motion for summary judgment.

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1 STRAUB, Circuit Judge, dissenting in part and concurring in part:

2

INTRODUCTION

3

I respectfully dissent in part and concur in part.

4

I concur with those parts of the majority opinion that (1) deny BLAG’s motion to dismiss

5 the appeal taken by the United States, and (2) decline to certify to the New York Court of

6 Appeals the question of whether the State of New York recognized Windsor’s marriage at the

7 time of her wife’s death. For the reasons that follow, I dissent from the majority’s holding that

8 DOMA is unconstitutional under the Fifth Amendment’s equal protection guarantee.

9

The majority holds DOMA unconstitutional, a federal law which formalizes the

10 understanding of marriage in the federal context extant in the Congress, the Presidency, and the

11 Judiciary at the time of DOMA’s enactment and, I daresay, throughout our nation’s history. If

12 this understanding is to be changed, I believe it is for the American people to do so.

13

Forty years ago, the United States Supreme Court was presented with the essentially

14 identical challenge we have here. The then DOMA-like Minnesota law was upheld in that state’s

15 highest court because it found that the right to marry without regard to sex was not a

16 fundamental right and the law’s thrust was not irrational or invidious discrimination. The

17 Supreme Court of Minnesota held that the applicable Minnesota statute defining marriage as a

18 union between a man and a woman did not violate the United States Constitution. Upon their

19 appeal to the United States Supreme Court, the plaintiffs’ jurisdictional statement squarely

20 claimed that Minnesota’s same-sex marriage prohibition violated their equal protection rights.

21 The Supreme Court, in dismissing the appeal for “want of a substantial federal question,”

22 obviously found no constitutional infirmity in that DOMA-like Minnesota law. I am unable to

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1 conclude, as it is suggested we should, that the Supreme Court of the United States would have

2 held as it did had it concluded that the Minnesota law was unconstitutional—at a time when it

3 was required to accept the appellate challenge. The Supreme Court made a merits decision, and

4 has never walked away from it or ever suggested that its disposition elided a merits

5 determination on some procedural basis. It has further instructed us that such a disposition,

6 albeit summary, rejects the challenge presented in the jurisdictional statement and is binding on

7 the lower federal courts. And, as recently as 2003, Justice O’Connor reminded us that rational

8 reasons exist to promote the traditional institution of marriage. Baker dictates my decision.

9

Furthermore, it is argued here that we are to disregard this binding precedent and the

10 traditionally applicable rational basis standard of review and, instead, now create a new type of

11 suspect classification requiring a heightened level of scrutiny in respect of the federal definition

12 of marriage. The Supreme Court has never done so, while reminding us to be wary of creating

13 any new such classification and itself not having created any in decades. I believe it would be

14 imprudent to do so in this case. Eleven of our nation’s federal Circuit Courts of Appeals have

15 not utilized an elevated form of scrutiny as to sexual orientation discrimination. Most recently,

16 the First Circuit went to the extreme of creating a new, increased level of rational basis analysis.

17 This appears to be the first case in which this Court is asked to do the same or more, and the

18 majority is the first to apply intermediate scrutiny to invalidate the federal definition of marriage

19 as between a man and a woman. The discrimination in this case does not involve a recognized

20 suspect or quasi-suspect classification. It is squarely about the preservation of the traditional

21 institution of marriage and its procreation of children. DOMA centers on legitimate state

22 interests that go beyond mere moral disapproval of an excluded group. DOMA’s classification is

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1 to be reviewed on the basis of whether it has a rational relation to any legitimate end. Utilizing

2 that standard, I conclude that DOMA is constitutional. The rational basis standard is most

3 deferential to the determinations of the Congress. Such may be conclusory and are not to be

4 tried in the traditional fact-oriented process. The public policy choice set forth in DOMA is to be

5 made by Congress, not the Judiciary. In DOMA, Congress has set the boundaries for marriage—

6 all in keeping with American society’s historical view of a marriage as being between a man and

7 a woman. This is not the first time the Congress has signaled its intentions in various definitions

8 of eligibility for federal purposes as to children, marriage, and domestic relations. These have at

9 times conflicted with state laws but the federal law has always prevailed for federal purposes.

10

The Congress had the benefit of advice from the Department of Justice that DOMA is

11 constitutional. The Congress decided to codify what had always been implicit in federal law.

12 The history of federal legislation in respect of the meaning of marriage or spouse was never even

13 suggested to mean anything other than the lawful union of one man and one woman for all

14 federal purposes. The nation’s traditional understanding was memorialized in DOMA. Congress

15 explicitly sought to recognize for federal purposes the significance of our historical

16 understanding of a mainstream value, joining the biological component of the marriage

17 relationship to the legal responsibility of rearing the offspring of that union. The Congress

18 referenced its intention to sanction, for federal purposes, society’s desire to approve the man and

19 woman long term union as the ideal by which to beget and rear children. Indeed, state high

20 courts—as in New York—have credited their legislature’s rational decisions to promote the

21 welfare of children via opposite-sex marriage laws. Further, Congress has articulated, as another

22 legitimate reason for DOMA, that the federal fisc as well as America’s desired right to equitable

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1 distribution of benefits should not be based on the particularity or peculiarity of any state’s

2 definition of marriage, but rather the federal government is entitled to codify a single definition

3 of marriage as historically understood.

4

The Congress was uniform and consistent. And, it chose not to rush ahead with a

5 redefinition at a time when all the states utilized the traditional definition of marriage. It chose to

6 let the issue evolve within American society. The Congress accomplished its task in a manner

7 which continues to respect the principle of federalism. The states remain free to define marriage

8 as they choose, pursuant to DOMA. And, forty-one of our states continue to define marriage as

9 DOMA does. The totality of the foregoing is sufficient to hold DOMA constitutional under the

10 rational basis standard. Even the majority opinion, while ultimately holding DOMA

11 unconstitutional under a higher level of scrutiny, appears to imply that DOMA passes rational

12 basis review. (Maj. Op. at 22:3–9.)

13

My final observation relates to the Attorney General’s current position. His assertion that

14 sexual orientation is a suspect classification and that DOMA fails to pass strict scrutiny is

15 recently minted, and is contrary to an established body of cases to the contrary. The Attorney

16 General’s position is unprecedented in its departure from the Department of Justice’s long-

17 standing policy of defending federal statutes even if the President disagrees as a matter of policy.

18

At bottom, the issue here is marriage at the federal level for federal purposes, and not

19 other legitimate interests. The Congress and the President formalized in DOMA, for federal

20 purposes, the basic human condition of joining a man and a woman in a long-term relationship

21 and the only one which is inherently capable of producing another generation of humanity.

22 Whether that understanding is to continue is for the American people to decide via their choices

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1 in electing the Congress and the President. It is not for the Judiciary to search for new standards

2 by which to negate a rational expression of the nation via the Congress.

3

DISCUSSION

4 I. The Origin and Impact of DOMA

5

DOMA was enacted in 1996 in response to the possible end to the exclusion of same-sex

6 couples from civil marriage in Hawaii. In Baehr v. Lewin, 852 P.2d 44 (Haw. 1993), the Hawaii

7 Supreme Court held that denying same-sex couples the right to marry must be justified under 8 strict scrutiny, and remanded for further proceedings consistent with this determination.1 The

9 House Judiciary Committee’s Report on DOMA (the “House Report”) described Baehr as part of

10 an “orchestrated legal assault being waged against traditional heterosexual marriage.” See H.R.

11 Rep. No. 104-664, at 2–3 (1996), reprinted in 1996 U.S.C.C.A.N. 2905, 2906–07 (“House

12 Report” or “H. Rep.”).

13

DOMA has two key provisions. Section 2, the choice-of-law section, states:

14

No State, territory, or possession of the United States, or Indian

15

tribe, shall be required to give effect to any public act, record, or

16

judicial proceeding of any other State, territory, possession, or tribe

17

respecting a relationship between persons of the same sex that is

18

treated as a marriage under the laws of such other State, territory,

19

possession, or tribe, or a right or claim arising from such

20

relationship.

21 28 U.S.C. § 1738C. This provision expresses Congress’s desire to prevent a situation where one

22 state would be forced to recognize same-sex marriages performed and recognized in a different

23 state.

1 Same-sex marriage never became law in Hawaii because, following Baehr, the Hawaii Constitution was amended to allow for the legislative prohibition of same-sex marriage. See Haw. Const. art. I, § 23. But, this did not occur until after DOMA was enacted.
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1

Section 3, the definitional section of DOMA, provides:

2

In determining the meaning of any Act of Congress, or of any

3

ruling, regulation, or interpretation of the various administrative

4

bureaus and agencies of the United States, the word “marriage”

5

means only a legal union between one man and one woman as

6

husband and wife and the word “spouse” refers only to a person of

7

the opposite sex who is a husband or a wife.

8 1 U.S.C. § 7. This provision articulates Congressional recognition, for federal purposes, that

9 marriage is the union of a man and a woman.

10

The House Report indicates that several motivations led Congress to pass DOMA. It

11 identifies four “governmental interests advanced by this legislation: (1) defending and nurturing

12 the institution of traditional, heterosexual marriage; (2) defending traditional notions of morality;

13 (3) protecting state sovereignty and democratic self-governance; and (4) preserving scarce

14 government resources.” (H. Rep. at 12–18.) The House Report also justifies DOMA as a means

15 to “encourag[e] responsible procreation and child-rearing,” H. Rep. at 13, and as a way to reflect

16 Congress’s “moral disapproval of homosexuality, and a moral conviction that heterosexuality

17 better comports with traditional (especially Judeo-Christian) morality.” (H. Rep. at 16.)

18

Given the broad range of federal laws to which marital status is relevant, the

19 consequences of DOMA are far-reaching. In addition to preventing a surviving same-sex spouse

20 like Windsor from inheriting money or property free from an estate tax, DOMA prevents same-

21 sex married couples from lessening tax burdens by filing joint federal tax returns, see 26 U.S.C.

22 § 1(a)-(c); prevents the surviving spouse of a same-sex marriage from collecting Social Security

23 survivor benefits, see, e.g., 42 U.S.C. § 402; and prevents federal employees from sharing their

24 health insurance and certain other medical benefits with same-sex spouses. As a result of

25 DOMA, married same-sex couples are deprived of many other, lesser-known rights, benefits, and -6-

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1 privileges including, inter alia, benefits relating to intellectual property; housing benefits;

2 veteran’s benefits; immigration entitlements (same-sex spouses are the only legally married

3 spouses of American citizens who can face deportation); employment benefits in the private

4 sector (including sick leave to care for one’s spouse under the Family and Medical Leave Act);

5 and protections relating to domestic and intimate partner crimes and family violence.

6

In sum, DOMA codifies, for purposes of federal statutes, regulations, and rulings, the

7 understanding of marriage as “only a legal union between one man and one woman as husband

8 and wife,” see 1 U.S.C. § 7, and it reserves to each state the ability to retain that definition as its

9 policy if the state so chooses, or to alter it, as it sees fit. See 28 U.S.C. § 1738C. In enacting

10 DOMA, therefore, Congress (1) maintained the status quo as to the federal definition of marriage

11 for the purposes of federal programs and benefits; and (2) recognized the right of any state to

12 allow gays and lesbians to marry while, at the same time, permitting other states to adhere to

13 their existing understandings of the institution of marriage.

14 II. Standard of Review

15

We review a grant of summary judgment de novo. Bank of N.Y. v. First Millennium, Inc.,

16 607 F.3d 905, 914 (2d Cir. 2010). Summary judgment is appropriate only if “there is no genuine

17 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.

18 R. Civ. P. 56(a). A fact is material “if it ‘might affect the outcome of the suit under the

19 governing law,’” and “[a]n issue of fact is ‘genuine’ if ‘the evidence is such that a reasonable

20 jury could return a verdict for the nonmoving party.’” Holtz v. Rockefeller & Co., 258 F.3d 62,

21 69 (2d Cir. 2001) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

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1

There being no dispute as to the material facts in this matter, I find, as a matter of law,

2 that DOMA is constitutional.

3 III. The Precedential Effect of Baker v. Nelson

4

The majority concludes that Windsor’s claim is not foreclosed by the Supreme Court’s

5 summary dismissal in Baker v. Nelson, 409 U.S. 810 (1972). In Baker, a same-sex couple

6 seeking the right to marry challenged a Minnesota law that limited marriage to opposite-sex

7 couples on the grounds that it violated due process and equal protection, as it unconstitutionally

8 discriminated on the basis of sex. Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971). The

9 Minnesota Supreme Court, applying rational basis review, upheld the statute because it found the

10 right to marry without regard to sex was not fundamental, and because classifying who can

11 marry based on sex was not “irrational or invidious discrimination.” Id. at 187. The Court

12 reasoned that “[i]t is unrealistic to think that the original draftsmen of our marriage statutes,

13 which date from territorial days, would have used the term” to mean anything other than “the

14 state of union between persons of the opposite sex.” Id. at 186. In so doing, the Court found

15 support in the 1966 version of Webster’s Third New International Dictionary, the fourth edition

16 of Black’s Law Dictionary, the Book of Genesis, and Skinner v. Oklahoma, which declared that

17 “[m]arriage and procreation are fundamental to the very existence and survival of the race.” 316

18 U.S. 535, 541 (invalidating Oklahoma’s Habitual Criminal Sterilization Act under the Fourteenth

19 Amendment’s Equal Protection Clause).

20

The Minnesota Supreme Court rejected petitioners’ reliance on Griswold v. Connecticut,

21 381 U.S. 479 (1965), and Loving v. Virginia, 388 U.S. 1 (1967). The Minnesota Supreme Court

22 held that the privacy right recognized in Griswold was “inherent in the marital relationship,” and

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1 that Loving did not militate in favor of petitioners because “Virginia’s anti-miscegenation

2 statute . . . was invalidated solely on the grounds of its patent racial discrimination.” Id. at 186–

3 87. The Court concluded that in both a “commonsense and in a constitutional sense, there is a

4 clear distinction between a martial restriction based merely upon race and one based upon the

5 fundamental difference in sex.” Id. at 187. The United States Supreme Court summarily

6 dismissed the appeal of the Minnesota Supreme Court’s ruling for “want of a substantial federal

7 question.” Baker, 409 U.S. at 810.

8

The equal protection guarantee of the Fifth Amendment, which applies to the federal

9 government, functions identically to the Equal Protection Clause of the Fourteenth Amendment,

10 which applies to the states. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 217 (1995).

11 Therefore, jurisprudence interpreting one applies to the other. It follows that any ruling of the

12 Supreme Court on a Fourteenth Amendment equal protection challenge to the denial of same-sex

13 marriage applies with equal force to an equal protection challenge to the denial of same-sex

14 marriage under the Fifth Amendment.

15

According to the jurisdictional statement of the appellants in Baker, the case presented,

16 inter alia, the question of “[w]hether appellee’s refusal, pursuant to Minnesota marriage statutes,

17 to sanctify appellants’ marriage because both are of the male sex violates their rights under the

18 equal protection clause of the Fourteenth Amendment.” (JA-695.) The question presented here,

19 by Windsor, can be formulated in a strikingly similar fashion: “Whether Section 3 of the

20 Defense of Marriage Act is consistent with the equal protection component of the Fifth

21 Amendment Due Process Clause.” (DOJ Br. at 2.)

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1

Baker is a disposition on the merits, not a mere denial of certiorari, Hicks v. Miranda, 422

2 U.S. 332, 344 (1975), and any ruling inconsistent with its terms must be avoided. “[L]ower

3 courts are bound by summary decisions by this Court until such time as the Court informs (them)

4 that (they) are not.” Hicks, 422 U.S. at 344–45 (internal quotation omitted).

5

A summary dismissal means that “the Court found that the decision below was correct

6 and that no substantial question of the merits was raised.” E. Gressman, et al., Supreme Court

7 Practice § 5.18, p.365 (9th ed. 2007). See also Roxbury Taxpayers Alliance v. Del. Cnty. Bd. of

8 Supervisors, 80 F.3d 42, 48 (2d Cir. 1996) (recognizing dismissal for want of a substantial

9 federal question as “a decision on the merits of the case”); Port Auth. Bondholders Protective

10 Comm. v. Port of N.Y. Auth., 387 F.2d 259, 262 n.3 (2d Cir. 1967) (“[U]nless and until the

11 Supreme Court should instruct otherwise, inferior federal courts had best adhere to the view that

12 if the Court has branded a question as unsubstantial, it remains so except when doctrinal

13 developments indicate otherwise.”); cf. Doe v. Hodgson, 478 F.2d 537, 539 (2d Cir. 1973)

14 (rejecting argument that summary dispositions have “very little precedential significance” and

15 stating that “we are bound by the Supreme Court’s summary affirmances until such time as the

16 Court informs us that we are not”) (internal quotation omitted). Thus, Baker squarely rejected 17 the contention that prohibiting same-sex marriages violated equal protection.2

18

Whatever factual differences exist between the challenge to the Minnesota law presented

19 in Baker and Windsor’s challenge to DOMA, they are too attenuated to remove the instant case

20 from the scope of Baker’s precedential effect. Although the facts in this case are not identical to

2 1988 legislation curtailing the Supreme Court’s appellate jurisdiction did not change the precedential import of summary dispositions. “Abolition of the [mandatory] appeal jurisdiction does not change this rule.” 16B Charles Alan Wright & Arthur R. Miller, et al., Federal Practice & Procedure § 4014 (2d ed. 2012).
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1 those in Baker, the “precedential value of a dismissal for want of a substantial federal question

2 extends beyond the facts of the particular case to all similar cases.” Wright v. Lane Cnty. Dist.

3 Court, 647 F.2d 940, 941 (9th Cir. 1981); see also League of Women Voters of Nassau Cnty. v.

4 Nassau Cnty. Bd. of Supervisors, 737 F.2d 155, 164 (2d Cir. 1984) (the court’s “responsibility in

5 gauging [a summary disposition’s] authority . . . is to mark out the ‘reach and content’ of that

6 prior disposition”).

7

The same-sex couple in Baker argued that Minnesota’s exclusion of same-sex couples

8 from the institution of civil marriage violated the Equal Protection Clause because it was

9 discrimination not rationally related to any legitimate governmental interest. Forty years may

10 have passed, but Windsor makes the same claim today (based on, inter alia, similar arguments

11 regarding the over-and under-inclusiveness of the limitation on the marriage right vis-à-vis the

12 procreation rationale). Whatever differences exist between Windsor’s claim and those advanced

13 in Baker, they are insignificant compared to the central fact that both cases present equal

14 protection challenges to laws prohibiting the recognition of any marriage entered into by two

15 persons of the same sex. Thus, any distinctions do not render DOMA sufficiently different from

16 Minnesota’s marriage law at the time of Baker such that it can be said the issues in this case were

17 not before and decided by the Supreme Court. The relevant facts of this case are substantially

18 similar to those of Baker, which necessarily decided that a state law defining marriage as a union

19 between a man and woman does not violate the Equal Protection Clause. Baker is the last word

20 from the Supreme Court regarding the constitutionality of a state law limiting marriage to

21 opposite-sex couples under the Equal Protection Clause and thus remains binding on this Court,

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1 given that the equal protection component of the Fifth Amendment is identical to and

2 coextensive with the Fourteenth Amendment guarantee.

3

Since Baker holds that states may use the traditional definition of marriage for state

4 purposes without violating equal protection, it necessarily follows that Congress may define

5 marriage the same way for federal purposes without violating equal protection. See Citizens for

6 Equal Prot. v. Bruning, 455 F.3d 859, 870 (8th Cir. 2006) (“In the nearly one hundred and fifty

7 years since the Fourteenth Amendment was adopted, to our knowledge no Justice of the Supreme

8 Court has suggested that a state statute or constitutional provision codifying the traditional

9 definition of marriage violates the Equal Protection Clause or any other provision of the United

10 States Constitution.”); McConnell v. Nooner, 547 F.2d 54, 56 (8th Cir. 1976) (per curiam) (Baker

11 “constitutes an adjudication on the merits which is binding on the lower federal courts”); Adams

12 v. Howerton, 486 F. Supp. 1119, 1124 (C.D. Cal. 1980) (finding Baker controlling in case where

13 same-sex spouse appealed denial of petition with INS to be classified as “immediate relative”),

14 aff’d, 673 F.2d 1036, 1039 n.2 (9th Cir. 1982) (acknowledging precedential nature of Baker);

15 Wilson v. Ake, 354 F. Supp. 2d 1298, 1305 (M.D. Fla. 2005) (Baker is “binding precedent” with

16 “dispositive effect” requiring dismissal of equal protection challenge to DOMA).

17

The correctness of the Baker holding was placed squarely before the Supreme Court in

18 that case’s jurisdictional statement. The Court’s summary dismissal for want of a substantial

19 federal question is therefore a controlling precedent, unless and until re-examined by the

20 Supreme Court. Hicks, 422 U.S. at 343–45. “The Court neither acknowledges nor holds that

21 other courts should ever conclude that its more recent cases have, by implication, overruled an

22 earlier precedent. Rather, lower courts should follow the case which directly controls, leaving to

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1 this Court the prerogative of overruling its own decisions.” Agostini v. Felton, 521 U.S. 203, 207 2 (1997).3

3

The close resemblance between the issue presented in Baker and the claim advanced by

4 Windsor means that the scope of Baker controls the question raised by this appeal, foreclosing

5 Windsor’s claim. That is, both cases involve the validity of same-sex couples’ deprivation of

6 marriage rights, a question already presented to and adjudicated on the merits by the Supreme

7 Court. In addition, if, as Baker held, denying same-sex couples the right to marry does not

8 violate equal protection, it follows that denying same-sex couples a subset of the rights (i.e.,

9 federal rights) associated with marriage is also constitutional. This conclusion is inescapable.

10 For the sake of completeness, in the event that there is any doubt that Baker forecloses

11 Windsor’s claim, I now proceed to consider the merits.

12 IV. Principles of Equal Protection Analysis

13

“The Due Process Clause of the Fifth Amendment assures every person the equal

14 protection of the laws, ‘which is essentially a direction that all persons similarly situated should

15 be treated alike.’” Able v. United States, 155 F.3d 628, 631 (2d Cir. 1998) (quoting City of

16 Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985)).

3 Although we have noted that questions may stop being “insubstantial” when subsequent doctrinal developments so indicate, Port Auth. Bondholders, 387 F.2d at 263 n.3, the Supreme Court has never, despite the numerous developments in the last forty years, stated that its holding in Baker is invalid. I am not convinced by Windsor’s arguments that the Supreme Court’s decisions in Romer v. Evans and Lawrence v. Texas have eroded Baker’s foundations such that it no longer holds sway.
In Romer, the Supreme Court applied rational basis scrutiny to laws that discriminated on the basis of sexual orientation. In Lawrence, the Supreme Court expressly stated that “[t]he present case does not involve . . . whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Lawrence, 539 U.S. at 578. Consequently, there are no doctrinal changes in Supreme Court jurisprudence implying that Baker is no longer binding authority and Baker’s effect therefore hinges on whether the issues in this case were presented to and necessarily decided by the Supreme Court.
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1

When the subject of unequal treatment is a member of a class that historically has been

2 the object of discrimination, or government conduct employs a classification—inter alia, race,

3 alienage, nationality, sex, and illegitimacy—closely associated with inequality, “the Supreme

4 Court has required a higher degree of justification than a rational basis, either strict or

5 intermediate scrutiny. Under the strict scrutiny test the government must demonstrate a

6 compelling need for the different treatment and that the provision in question is narrowly tailored

7 to achieve its objective. Under intermediate scrutiny, the government must at least demonstrate

8 that the classification is substantially related to an important governmental objective.” Id. at

9 631–32 (internal citations omitted).

10

Where no suspect classification is employed or fundamental right infringed upon by

11 government conduct, the constitutional guarantee of equal protection is satisfied where a

12 classification bears a rational relationship to an appropriate governmental interest. See Heller v.

13 Doe, 509 U.S. 312, 320 (1993). In evaluating whether the asserted purposes of a federal law are

14 rationally related to its ends, we defer to the judgment of Congress. Congressional enactments

15 that do not infringe upon a fundamental right or employ a suspect classification are entitled to “a

16 strong presumption of validity,” and must be sustained if “‘there is any reasonably conceivable

17 state of facts that could provide a rational basis for the classification.’” Id. at 319–20 (quoting

18 FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993)). Rational basis review in an equal

19 protection analysis does not authorize “‘the judiciary [to] sit as a superlegislature to judge the

20 wisdom or desirability of legislative policy determinations made in areas that neither affect

21 fundamental rights nor proceed along suspect lines.’” Id. at 319 (quoting New Orleans v. Dukes,

22 427 U.S. 297, 303 (1976)).

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1

Unlike under heightened scrutiny, in a rational basis equal protection analysis courts look

2 to any “conceivable basis” for the challenged law, not limited to those articulated by or even 3 consistent with the rationales offered by the legislature. Beach Commc’ns, 508 U.S. at 312.4

4 Those attacking the rationality of a legislative classification have the burden “to negative every

5 conceivable basis which might support it.” Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S.

6 356, 364 (1973) (internal quotation omitted). “The Constitution presumes that, absent some

7 reason to infer antipathy, even improvident decisions will eventually be rectified by the

8 democratic process and that judicial intervention is generally unwarranted no matter how

9 unwisely we may think a political branch has acted.” Vance v. Bradley, 440 U.S. 93, 97 (1979)

10 (footnote omitted). “[A] law will be sustained if it can be said to advance a legitimate

11 government interest, even if the law seems unwise or works to the disadvantage of a particular

12 group, or if the rationale for it seems tenuous.” Romer v. Evans, 517 U.S. 620, 632 (1996).

13 Under the rational review framework, where there are “plausible reasons” for Congressional

14 action, a court’s “inquiry is at an end.” U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 179 (1980).

15 This standard of review is “a paradigm of judicial restraint.” Beach Commc’ns, 508 U.S. at 314.

16 “[C]ourts are compelled under rational-basis review to accept a legislature’s generalizations even

17 when there is an imperfect fit between means and ends.” Heller, 509 U.S. at 321. “Only by

18 faithful adherence to th[e] guiding principle of [restraint in] judicial review of legislation is it

19 possible to preserve to the legislative branch its rightful independence and its ability to function.”

20 Beach Commc’ns, 508 U.S. at 315 (internal quotation omitted).

4 Indeed, in Beach Communications, the Supreme Court upheld the challenged law using a posited reason for a federal agency regulation, even though Congress had previously rejected that purpose and the regulation presented a conflict in the statutory scheme. Id. at 318.
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1

Having a conceivable legitimate governmental interest is, alone, not sufficient for rational

2 basis review. To survive rational basis review, a law must also have a rational relationship to the

3 asserted legitimate governmental interest. In assessing the existence of a rational relationship,

4 courts should be guided by the knowledge that rational basis review is “the most relaxed and

5 tolerant form of judicial scrutiny under the Equal Protection Clause.” City of Dallas v. Stanglin,

6 490 U.S. 19, 26 (1989).

7

However, even under rational basis review, a law will fail if it seeks to further an

8 illegitimate end. For example, “the accommodation of . . . bias or animosity can never serve as a

9 legitimate government interest; mere negative attitudes, or fear, unsubstantiated by factors which

10 are properly cognizable in the circumstances, are not permissible bases for differential treatment

11 by the government.” Able, 155 F.3d at 634 (internal quotations omitted). Laws that single out a

12 certain class of citizens for disfavored legal status “raise the inevitable inference that the

13 disadvantage imposed is born of animosity toward the class of persons affected.” Romer, 517

14 U.S. at 633–34. And such animosity cannot constitute a legitimate governmental objective.

15 Dep’t of Agric. v. Moreno, 413 U.S. 528, 534 (1973).

16

Where the discrimination challenged is motivated both by impermissible purposes (e.g.,

17 animus, negative attitudes, malice, fear, the desire to harm a group, moral disapproval,

18 ignorance) and permissible purposes (under rational basis review, virtually any goal not

19 forbidden by the Constitution), the law may still be constitutionally valid. While “negative

20 attitudes,” “fear” or other biases “may often accompany irrational (and therefore

21 unconstitutional) discrimination, their presence alone does not a constitutional violation make.”

22 Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 367 (2001).

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1

Because any single valid rationale is sufficient to support DOMA’s constitutionality, I

2 analyze only as many possible interests as necessary to sustain the law. See F.C.C. v. Beach

3 Commc’n, Inc., 508 U.S. 307, 317 (1993). I find that several of BLAG’s rationale suffice to

4 satisfy constitutional scrutiny.

5 V. DOMA Survives Rational Basis Review

6

The House Report identifies four governmental interests advanced by DOMA:

7 “(1) defending and nurturing the institution of traditional, heterosexual marriage; (2) defending

8 traditional notions of morality; (3) protecting state sovereignty and democratic self-governance;

9 and (4) preserving scarce government resources.” (H. Rep. at 12.)

10

BLAG contends that DOMA is supported by six rationales, all of which independently

11 justify the legislation under rational basis review. DOMA, it is argued, advances governmental

12 interest in: (1) maintaining a uniform federal definition of marriage, (2) preserving the public

13 fisc and respecting prior legislative judgments, (3) exercising caution, (4) recognizing opposite-

14 sex couples’ unique ability to procreate, (5) incentivizing the raising of children by their

15 biological parents, and (6) encouraging childrearing in a setting with both a mother and a father.

16

At oral argument, the Department of Justice confirmed that in 1996, in “a couple of

17 different letters,” it indicated to Congress that it believed “courts would uphold section three of

18 DOMA.” (Oral Arg. Tr. 42:8–14.) Specifically, in a letter dated May 14, 1996, the Department

19 of Justice indicated to the Honorable Henry J. Hyde, Chairman of the House Committee on the

20 Judiciary, that “[t]he Department of Justice believes that H.R. 3396 [DOMA] would be sustained

21 as constitutional.” (H. Rep. at 32.) On May 29, 1996, the Department of Justice again advised

22 Congress, in a letter to the Honorable Charles T. Canady, Chairman of the House Subcommittee

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1 on the Constitution (Committee on the Judiciary), that DOMA “would be sustained as

2 constitutional if challenged in court, and that it does not raise any legal issues that necessitate

3 further comment by the Department.” (Id. at 32–33.)

4

The Department of Justice maintained this position until early 2011, defending DOMA

5 against numerous lawsuits in the intervening years. Indeed, from 2009 through early 2011, the

6 Department of Justice took the position that uniformity and a desire to preserve the status quo

7 vis-à-vis a federal definition of marriage provided a rationale for DOMA sufficient to sustain the

8 law under rational basis review, which was argued to be the applicable standard of scrutiny. See

9 Office of Pers. Mgmt. Mem. of Law in Supp. of Defs.’ Mot. to Dismiss, Gill v. Office of Pers.

10 Mgmt., No. 09-cv-10309 (JLT), at 16–19 (D. Mass. Sept. 18, 2009) (docket entry no. 21); U.S.

11 Dep’t of Health and Human Servs. Mem. of P. & A. in Supp. of Defs.’ Mot. to Dismiss,

12 Commonwealth of Mass. v. U.S. Dep’t of Health and Human Servs., No. 09-cv-11156 (JLT), at

13 28–31 (D. Mass. Oct. 30, 2009) (docket entry no. 17); U.S. Dep’t of the Treasury Mot. to

14 Dismiss, Dragovich v. Dep’t of Treasury, No. 10-cv-1564 (CW), at 18–24 (N.D. Cal. July 2,

15 2010) (docket entry no. 25); U.S. Office of Pers. Mgmt. Supplemental Br. in Resp. to Ct.’s Order

16 of Oct. 15, 2010, Golinski v. Office of Pers. Mgmt., No. 10-257 (JSW), at 10–15 (N.D. Cal. Nov.

17 19, 2010) (docket entry no. 83). As late as January of 2011, the Department of Justice told the

18 First Circuit that DOMA was not unconstitutional. See Corrected Br. for the U.S. Dep’t of

19 Health and Human Servs., Commonwealth of Mass. v. U.S. Dep’t of Health and Human Servs.,

20 Nos. 10-2204, 10-2207, 10-2214, at 26–55 (1st Cir. Jan. 19, 2011). No relevant facts or law

21 have changed since early 2011 when the Department of Justice last took this position. Indeed, at

22 oral argument, the Department of Justice acknowledged that its current position on DOMA is, in

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1 part, a result of “a decision that has been made by the Attorney General and by the President, [a]

2 constitutional judgment.” (Oral Arg. Tr. 42:21–43:6.)

3

Even now the Department of Justice acknowledges that “a reasonable argument for

4 Section 3’s constitutionality may be proffered under” the rational basis standard, and that there

5 exists “substantial circuit court authority applying rational basis review to sexual-orientation

6 classifications.” (JA-56, JA-53.) At argument, the Department of Justice summarized its most

7 recent arguments for DOMA’s rational basis as “maintaining the status quo” and achieving “a

8 degree of uniformity for federal benefits, coupled with preserving room for state policy

9 development.” (Oral Arg. Tr. 44:3–7.)

10

As explained above, only if there is no conceivable legitimate governmental interest, or

11 DOMA is not rationally related to any such interest, will the statute be unconstitutional under

12 rational basis review.

13

A. Responsible Procreation and Childrearing by Biological Parents

14

In enacting DOMA, Congress sought to explicitly recognize, for federal purposes, the

15 biological component of the marital relationship and the legal responsibility of rearing the

16 offspring of such a union. Numerous state high courts have accepted this as a rational basis for

17 excluding same-sex couples, even legally recognized same-sex parents, from the institution of

18 civil marriage. DOMA advances the governmental interest in connecting marriage to biological

19 procreation by excluding certain couples who cannot procreate simply by joinder of their

20 different sexual being from the federal benefits of marital status.

21

Under rational basis review, courts must consider and credit all rationales for restricting

22 federal marriage benefits to opposite-sex couples that do not evince unconstitutional animus.

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1 Numerous courts have recognized that denying same-sex couples federal marriage rights or even

2 the right to marry at all can be grounded in reasons other than animus. See Massachusetts v. U.S.

3 Dep’t of Health and Human Servs., 682 F.3d 1, 16 (1st Cir. 2012) (“Massachusetts v. HHS”)

4 (“we do not rely upon the charge that DOMA’s hidden but dominant purpose was hostility to

5 homosexuality”); In re Kandu, 315 B.R. 123, 147–48 (Bankr. W.D. Wash. 2004) (noting that

6 DOMA can be explained by legitimate governmental interests); Standhardt v. Superior Court, 77

7 P.3d 451, 465 (Ariz. Ct. App. 2003) (“Arizona’s prohibition of same-sex marriages furthers a

8 proper legislative end and was not enacted simply to make same-sex couples unequal to

9 everyone else.”); Jones v. Hallahan, 501 S.W.2d 588, 590 (Ky. Ct. App. 1973) (“We do not

10 consider the refusal to issue the [marriage] license [to persons of the same sex] a punishment.”);

11 In re Marriage of J.B. & H.B., 326 S.W.3d 654, 680 (Tex. Ct. App. 2010) (rejecting argument

12 that limiting marriage and divorce to opposite-sex couples is “explicable only by class-based

13 animus”). See also Lawrence v. Texas, 539 U.S. 558, 585 (2003) (“Unlike the moral disapproval

14 of same-sex relations—the asserted state interest in this case—other reasons exist to promote the

15 institution of marriage beyond mere moral disapproval of an excluded group.”) (O’Connor, J.,

16 concurring).

17

The interest in recognizing the connections between marriage and childrearing by

18 biological parents can be broken down into several components. First, DOMA expresses

19 Congressional recognition that “responsible begetting and rearing of new generations is of

20 fundamental importance to civil society.” (Amicus Br. of States of Indiana, et al. at 25.)

21 Because the state has an interest in children, the state is thus also interested in preventing

22 “irresponsible procreation,” a phenomenon implicated exclusively by heterosexuals. (BLAG Br.

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1 at 49.) Because of these legitimate interests, reserving federal marriage rights to opposite-sex

2 couples “protect[s] civil society,” Amicus Br. of States of Indiana, et al. at 25, because without

3 the inducement of marriage, opposite-sex couples would accidentally procreate, giving rise to

4 unstable and unhealthy families. Marriage thus plays the important role of “channel[ing

5 opposite-sex] sexual desires” which, in the absence of marriage, would result in unstable

6 relationships, which have been documented to be harmful to children. (Amicus Br. of States of

7 Indiana, et al. at 26.)

8

As stated by BLAG, “[m]arriage attempts to promote permanence and stability, which are

9 vitally important to the welfare of the children of the marriage.” (BLAG Br. at 48–49.) That is,

10 marriage works to combat the risk of instability which is characteristic of inherently procreative

11 opposite-sex relationships, but absent from same-sex relationships. See Amicus Br. of States of

12 Indiana, et al. at 24 (“civil marriage recognition arises from the need to encourage biological 13 parents to remain together for the sake of their children”).5 DOMA advances this interest, in that

14 the state only needs to provide incentives to opposite-sex couples in the form of marriage,

15 because only opposite-sex couples have unintended, unplanned, unwanted children. Same-sex

5 See also Andersen v. King Cnty., 138 P.3d 963, 982–83 (Wash. 2006) (“[A]s Skinner, Loving, and Zablocki indicate, marriage is traditionally linked to procreation and survival of the human race. Heterosexual couples are the only couples who can produce biological offspring of the couple. And the link between opposite-sex marriage and procreation is not defeated by the fact that the law allows opposite-sex marriage regardless of a couple's willingness or ability to procreate. The facts that all opposite-sex couples do not have children and that single-sex couples raise children and have children with third party assistance or through adoption do not mean that limiting marriage to opposite-sex couples lacks a rational basis. Such over- or under-inclusiveness does not defeat finding a rational basis.”); Lewis v. Harris, 875 A.2d 259, 277 (N.J. App. Div. 2005) (Parrillo, J.A.D., concurring) (“[A] core feature of marriage is its binary, opposite-sex nature. . . . [T]he binary idea of marriage arose precisely because there are two sexes.”); Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 979 n.1 (Mass. 2003) (Sosman, J., dissenting) (“[T]he reasons justifying the civil marriage laws are inextricably linked to the fact that human sexual intercourse between a man and a woman frequently results in pregnancy and childbirth . . . that fact lies at the core of why society fashioned the institution of marriage in the first place.”).
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1 couples, by contrast, reproduce only “deliberately choosing to do so and by devoting a serious

2 investment of time, attention, and resources.” (Amicus Br. of States of Indiana, et al. at 35.)

3

Numerous courts have accepted this rationale as a basis for excluding same-sex couples

4 from civil marriage. The New York Court of Appeals, for instance, determined that

5

The Legislature could . . . find that [heterosexual] relationships are

6

all too often casual or temporary. It could find that an important

7

function of marriage is to create more stability and permanence in

8

the relationships that cause children to be born. It thus could

9

choose to offer an inducement—in the form of marriage and its

10

attendant benefits—to opposite-sex couples who make a solemn,

11

long-term commitment to each other. The Legislature could find

12

that this rationale for marriage does not apply with comparable

13

force to same-sex couples. These couples can become parents by

14

adoption, or by artificial insemination or other technological

15

marvels, but they do not become parents as a result of accident or

16

impulse. The Legislature could find that unstable relationships

17

between people of the opposite sex present a greater danger that

18

children will be born into or grow up in unstable homes than is the

19

case with same-sex couples, and thus that promoting stability in

20

opposite-sex relationships will help children more.

21 Hernandez v. Robles, 855 N.E.2d 1, 7 (N.Y. 2006) (plurality opinion). See also Andersen, 138

22 P.3d at 1002 (Johnson, J., concurring); Morrison v. Sadler, 821 N.E.2d 15, 24–25 (Ind. Ct. App.

23 2005).

24

DOMA furthers the interest in recognizing the link between marriage and procreation for

25 the reasons noted by the Maryland Court of Appeals:

26

[S]afeguarding an environment most conducive to the stable

27

propagation and continuance of the human race is a legitimate

28

government interest. The question remains whether there exists a

29

sufficient link between an interest in fostering a stable environment

30

for procreation and the means at hand used to further that goal, i.e.,

31

an implicit restriction on those who wish to avail themselves of

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1

State-sanctioned marriage. We conclude that there does exist a

2

sufficient link. . . . This “inextricable link” between marriage and

3

procreation reasonably could support the definition of marriage as

4

between a man and a woman only, because it is that relationship

5

that is capable of producing biological offspring of both members

6

(advances in reproductive technologies notwithstanding).

7 Conaway v. Deane, 932 A.2d 571, 630–31 (Md. 2007) (internal citations omitted).

8

Another component of the procreation and childrearing rationale for restricting federal

9 rights to opposite-sex marriage is the Congressional desire to have children raised in families

10 with only biological mothers and fathers, which same-sex couples cannot provide. Thus, BLAG

11 contends that DOMA “offer[s] special encouragement for relationships that result in mothers and

12 fathers jointly raising their biological children,” an interest which “simply does not apply to

13 same-sex couples.” (BLAG Br. at 54.) DOMA accomplishes this encouragement by limiting

14 federal marriage rights to opposite-sex couples.

15

Congress might well have enacted DOMA after consulting “the entire history of

16 civilization” regarding the “problems” that arise when there is no institution to encourage

17 biological parents to remain together. (Amicus Br. of States of Indiana, et al. at 35.) This, too,

18 has been accepted as a rational reason for excluding same-sex couples (including legally

19 recognized same-sex parents) from civil marriages. See, e.g., Hernandez, 855 N.E.2d at 8

20 (plurality opinion) (“Plaintiffs seem to assume that they have demonstrated the irrationality of

21 the view that opposite-sex marriages offer advantages to children by showing there is no

22 scientific evidence to support it. Even assuming no such evidence exists, this reasoning is

23 flawed. In the absence of conclusive scientific evidence, the Legislature could rationally proceed

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1 on the commonsense premise that children will do best with a mother and father in the home.”).6

2 I agree with BLAG that the evidence offered by Windsor and the professional organizations and

3 child welfare amici who advocate for affirmance does not make Congress’s “common sense”

4 regarding the needs of children a forbidden governmental interest under rational basis review.

5 (BLAG Br. at 55.)

6

As noted hereafter in the context of uniformity, the manner in which DOMA furthers the

7 legitimate governmental interests in childrearing, responsible procreation, and biological

8 parentage respects the principles of federalism. States may still arrive at individual

9 determinations regarding who may and may not marry, and DOMA does nothing to change this 10 functioning of our federal system.7 DOMA simply excludes certain couples who are married

11 under state law from eligibility for certain federal rights, benefits, privileges, and obligations.

12

DOMA’s exclusion of married same-sex couples, under the rational basis review where

13 means and ends need not match, see Heller, 509 U.S. at 321, is sufficiently related to the federal

14 interest in recognizing the link between the marital relationship and the rearing of its offspring.

15

16

6 Amici American Psychological Association, American Academy of Pediatrics, American Psychiatric Association, American Psychoanalytic Association, National Association of Social Workers, and New York State Psychological Association argue that no such credible evidence exists. See Amicus Br. of the American Psychological Association, et al. at 15–23.
7 The majority’s holding that DOMA’s definition of marriage as between a man and a woman is unconstitutional will doubtless be used to invalidate the laws in those forty-one states. Such has to be so given the fact that the equal protection analysis by the majority in this case for federal purposes pursuant to the Fifth Amendment is the same as that to be applied as to the states pursuant to the Fourteenth Amendment and is, therefore, the yardstick by which to hold unconstitutional the law in the forty-one states. Indeed, an affirmance by the Supreme Court of the majority’s view would likely doom the laws of the forty-one states which exclude same-sex couples from civil marriage.
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1

B. Maintaining the Status Quo of Uniformity

2

BLAG contends that DOMA is rationally related to the legitimate governmental “interest

3 in uniform eligibility for federal marital benefits.” (BLAG Br. at 39.) Congress, it is argued, has

4 a “long history of enacting federal definitions of marriage that do not simply incorporate state

5 definitions and inevitably will conflict with some of them.” (Id. at 42–43.) A uniform federal

6 definition of marriage “ensures that similarly-situated couples will have the same benefits

7 regardless of which state they happen to live in.” (Id. at 39–40.) The District Court expressed

8 skepticism regarding the legitimacy of this end, but principally rejected this justification because

9 DOMA “intrude[s] upon the states’ business of regulating domestic relations.” (JA-1007–09.)

10 Windsor and various amici argue that “[t]he federal government [has always] accepted states’

11 determinations of who was validly married – no matter how far states’ criteria for validity

12 diverged from one other,” Historians Amicus Br. at 15, and that the promulgation of a federal

13 definition of marriage “injects the federal government into domestic relations law and works to

14 delegitimize both the lawful marriages of thousands of same-sex couples and the considered

15 judgments of . . . [s]tates to sanction same-sex marriages, . . . intrud[ing] on core state powers.”

16 (States of New York, Vermont, and Connecticut Amicus Br. at 14.)

17

The subject of domestic relations, including marriage, has been the province of the states.

18 See Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12 (2004) (“Long ago we observed that

19 ‘[t]he whole subject of the domestic relations of husband and wife, parent and child, belongs to

20 the laws of the States and not to the laws of the United States.’”) (quoting In re Burrus, 136 U.S.

21 586, 593 (1890)). But DOMA does not change this, and does nothing to strip the status that

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1 states confer on couples they marry. Instead, DOMA limits the federal benefits, rights,

2 privileges, and responsibilities of marriage to a subset of those deemed married under state law.

3

That the federal government often defers to state determinations regarding marriage does

4 not obligate it to do so. While a state may be perfectly disinterested in prying into the reasons a

5 couple marries, the federal government remains deeply and properly concerned with the

6 reason(s) why a couple weds. See Massachusetts v. HHS, 682 F.3d at 12 (“Congress surely has

7 an interest in who counts as married. The statutes and programs that section 3 governs are

8 federal regimes such as social security, the Internal Revenue Code and medical insurance for

9 federal workers; and their benefit structure requires deciding who is married to whom.”).

10

For example, when people marry for immigration purposes, the federal government may

11 validly deem the marriage “fraudulent,” even though it remains valid under state law. See 8

12 U.S.C. § 1325(c) (“Any individual who knowingly enters into a marriage for the purpose of

13 evading any provision of the immigration laws shall be imprisoned for not more than 5 years, or

14 fined not more than $250,000, or both.”); 8 U.S.C. §§ 1154(a)(2)(A), 1255(e). Courts have

15 recognized this principle. See, e.g., Taing v. Napolitano, 567 F.3d 19, 21 (1st Cir. 2009)

16 (plaintiff remained a “spouse” and “immediate relative” under the Immigration and

17 Naturalization Act, even if her marriage actually ceased under state law upon the death of her

18 spouse); Adams v. Howerton, 673 F.2d 1036, 1040–41 (9th Cir. 1982) (even same-sex marriage

19 valid under state law does not count as a marriage for federal immigration law purposes); Lutwak

20 v. United States, 344 U.S. 604, 610–11 (1953) (noting a marriage’s adherence to local law is

21 immaterial if the marriage was “part of [a] conspiracy to defraud the United States”). Tellingly,

22 Windsor does not argue that federal Immigration and Customs Enforcement interferes with

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1 traditional state functions when it leaves states free to recognize, for their own purposes, any

2 marriage they like but refuses to grant legal residency to immigrants it believes married only to

3 secure the benefits of marriage.

4

DOMA alters the general, but by no means unyielding, practice of the federal

5 government accepting marriages recognized by state law. However, at the time Congress acted,

6 all states recognized only opposite-sex marriages, and the fact that Congress chose to maintain

7 that status quo in response to this new, evolving social issue does not invalidate its legislative

8 interest. It may be that, prior to DOMA, any federal “definition” of marriage was limited to

9 advancing the targeted goal of a particular federal program, not a blanket, undifferentiated policy

10 choice imposed on statuses created by states. See Massachusetts v. HHS, 682 F.3d at 12. But

11 this fact does not render the asserted interest in uniformity illegitimate or so lacking a “footing in

12 the realities of the subject addressed by the legislation” as to fail rational basis review. Heller,

13 509 U.S. at 321.

14

Section 3 of DOMA was enacted as the debate regarding marriage equality was just

15 beginning in the states. At that time, no state had actually permitted same-sex couples to marry.

16 In the intervening years, six states and the District of Columbia have enacted statutes or issued 17 court decisions that permit same-sex marriage.8 On the other hand, thirty states have amended

18 their founding documents by constitutional amendment to prohibit same-sex marriage, and 19 eleven more states have enacted statutes to the same effect.9 Given the evolving nature of this

8 See N.Y. Dom. Rel. Law § 10-a (McKinney 2011); N.H. Rev. Stat. § 457:1-a (2010); D.C. Stat. § 46-401 (2010); Vt. Stat. Ann. tit. 15 § 8 (2009); Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009); Kerrigan v. Comm’r of Pub. Health, 957 A.2d 407 (Conn. 2008); Goodridge, 798 N.E.2d 941 (Mass. 2003).
9 See Ala. Const. Art. I, § 36.03; Ala. Code § 30-1-19; Alaska Const. Art. 1, § 25; Alaska Stat. § 25.05.013; Ariz. Const. Art. 30 § 1; Ariz. Rev. Stat. §§ 25-101 & 25-112; Ark. Const. Amend. 83, § 1; Ark. Code Ann. §§ 9-11-109,
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1 issue, Congress was entitled to maintain the status quo pending further developments.

2 Otherwise, “marriage” and “spouse” for the purposes of federal law would depend on the

3 outcome of this debate in each state, with the meanings of those terms under federal law

4 changing with any change in a given state. As Windsor rightly notes, prior to DOMA, a state’s

5 authorization of same-sex marriage had numerous implications for federal laws to the extent

6 those laws were construed to incorporate state-law definitions of marriage. In order to avoid

7 federal implications of state-law developments in the area of marriage, Congress, by enacting

8 DOMA, reasonably froze federal benefits policy as it existed in 1996 with respect to same-sex

9 marriage.

10

The federal government can legitimately limit the national impact of state-level policy

11 development. Doing so facilitates the ability of the states to serve as laboratories of policy

12 development. As the Massachusetts Supreme Court stated when it held that the Massachusetts

13 state constitution required allowing same-sex couples to marry, “[t]he genius of our Federal

9-11-107, 9-11-208; Cal. Const. Art. I, § 7.5; Colo. Const. Art. 2, § 31; Colo. Rev. Stat. § 14-2-104; 13 Del. Code Ann. § 101; Fla. Const. Art. 1 § 27; Fla. Stat. § 741.212; Ga. Const. Art. 1, § 4, I; Ga. Code Ann. § 19-3-3.1; Haw. Const. Art. 1, § 23; Haw. Rev. Stat. § 572-1; Idaho Const. Art. III, § 28; Idaho Code Ann. §§ 32-201 & 32-209; 750 Ill. Comp. Stat. 5/212; Ind. Code § 31-11-1-1; Kan. Const. Art. 15, § 16; Kan. Stat. Ann. §§ 23-101 & 23-115; Ky. Const § 233A; Ky. Rev. Stat. Ann. §§ 402.005 & 402.020; La. Const. Art. 12, § 15; La. Civ. Code Ann. Art. 86, 89; Me. Rev. Stat. Ann. tit. 19-A, § 701; Md. Code Ann., Fam. Law, § 2-201; Mich. Const. Art. 1, § 25; Mich. Comp. Laws § 551.1; Minn. Stat.§ 517.03; Miss. Const. Art. 14, § 263A; Miss. Code Ann. § 93-1-1; Mo. Const. Art. I, § 33; Mo. Rev. Stat. § 451.022; Mont. Const. Art. XIII, § 7; Mont. Code Ann. § 40-1-401; Neb. Const. Art. I, § 29; Nev. Const. Art. 1, § 21; N.C. Gen. Stat. § 51-1.2; N.D. Const. Art. XI, § 28; N.D. Cent. Code §§ 14-03-01 & 1403-08; Ohio Const. Art. 15, § 11; Ohio Rev. Code Ann. § 3101.01(C); Okla. Const. Art. 2, § 35; Okla. Stat. Ann. tit. 43, § 3.1; Or. Const. Art. XV, § 5a; 23 Pa. Cons. Stat. §§ 1102, 1704; S.C. Const. Art. XVII, § 15; S.C. Code Ann. § 20-1-15; S.D. Const. Art. 21, § 9; S.D. Codified Laws § 25-1-1; Tenn. Const. Art. XI, § 18; Tenn. Code Ann. § 36-3-113; Tex. Const. Art. 1, § 32; Tex. Fam. Code Ann. §§ 2.001(b) & 6.204; Utah Const. Art. I, § 29; Utah Code Ann. §§ 30-1-2(5) & 30-1-4.1; Va. Const. Art. 1, § 15-A; Va. Code Ann. §§ 20-45.2 & 20-45.3; Wash. Rev. Code § 26.04.010(1); W. Va. Code § 48-2-603; Wis. Const. Art. XIII, § 13; Wis. Stat. §§ 765.001(2) & 765.04; Wyo. Stat. Ann. § 20-1-101. The statutory prohibitions or amendments of nineteen of these forty-one states forbid not only same-sex marriage, but any other form of relationship recognition, such as domestic partnership or civil union, between two persons of the same sex.
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1 system is that each State’s Constitution has vitality specific to its own traditions, and

2 that . . . each State is free to address difficult issues of individual liberty in . . . its own” manner.

3 Goodridge, 798 N.E.2d at 967.

4

Windsor argues that DOMA upends, rather than preserves, the status quo of

5 Congressional control over the meaning of marriage for federal purposes. But this argument is

6 contrary to the clear legal landscape at the time of DOMA’s enactment—that is, at the time, all

7 states were in full accord in recognizing only opposite-sex marriages. Congress’s actions allow

8 it to maintain a “wait-and-see” approach in the face of evolving state approaches to same-sex

9 marriages, thereby avoiding the need to immediately deal with the potentially significant impact

10 on federal law that a state’s recognition of same-sex marriage could have. Indeed, the far-

11 reaching impact of the federal definition of marriage in terms of rights, benefits, responsibilities,

12 and privileges (upon which Windsor places great emphasis) means that Congressional action can

13 quite reasonably be understood to have perceived this potential impact and decided that it was in

14 the federal government’s interest to maintain consistency and uniformity in distributing federal

15 benefits and administering federal programs.

16

Congress may, and both parties agree that it often does, borrow definitions from state

17 law, but Windsor is incorrect to suggest that it is required to do so or is irrational when it does

18 not. Put directly, Congress may also legitimately take an approach that attempts to create

19 uniformity across the states. In DOMA, Congress chose to adopt a uniform federal definition of

20 “marriage” and “spouse” for purposes of federal laws. Congress could rationally conclude that

21 maintaining the status quo at the federal level during a period of flux would allow states that

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1 wish to make changes in the legal definition of marriage to retain their inherent prerogative to do

2 so, while permitting others to maintain the traditional view.

3

Rational basis review embodies the principle that, as Congress did in enacting DOMA,

4 legislatures are free to refine their “preferred approach as circumstances change and as they

5 develop a more nuanced understanding of how best to proceed.” Massachusetts v. Envtl. Prot.

6 Agency, 549 U.S. 497, 524 (2007). Contrary to Windsor’s contention, the preservation of the

7 status quo—the definition of marriage that was uniform among all fifty states in the year of

8 DOMA’s passage—constitutes a legitimate governmental interest insofar as it allows Congress

9 the ability to “wait and see” how the issue of same-sex marriage would take shape among the

10 many and diverse states of our nation.

11

The uniformity that DOMA recognized and maintained has been recognized both

12 explicitly and implicitly by courts for many years from various jurisdictions across the nation.

13 Perhaps most explicitly, the Supreme Court stated:

14

[N]o legislation can be supposed more wholesome and necessary

15

in the founding of a free, self-governing commonwealth, fit to take

16

rank as one of the co-ordinate states of the Union, than that which

17

seeks to establish it on the basis of the idea of family, as consisting

18

in and springing from the union for life of one man and one

19

woman in the holy estate of matrimony; the sure foundation of all

20

that is stable and noble in our civilization; the best guaranty of that

21

reverent morality which is the source of all beneficent progress in

22

social and political improvement.

23

24 Murphy v. Ramsey, 114 U.S. 15, 45 (1885).

25

Other courts have explained that this uniformity has not always been explicit or necessary

26 to state. Almost forty years ago a Washington state court put it thus: “[A]lthough it appears that

27 the appellate courts of this state until now have not been required to define specifically what

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1 constitutes a marriage, it is apparent from a review of cases dealing with legal questions arising

2 out of the marital relationship that the definition of marriage as the legal union of one man and

3 one woman who are otherwise qualified to enter into the relationship not only is clearly implied

4 from such cases, but also was deemed by the court in each case to be so obvious as not to require

5 recitation.” Singer v. Hara, 522 P.2d 1187, 1191–92 (Wash. Ct. App. 1974). See also Jones v.

6 Hallahan, 501 S.W.2d 588, 590 (Ky. Ct. App. 1973) (“In substance, the [marital] relationship

7 proposed by the [same-sex] appellants does not authorize the issuance of a marriage license

8 because what they propose is not a marriage.”).

9

Cases predating Murphy demonstrate that the Supreme Court consistently lauded this

10 conception of marriage as a critical social institution. See Reynolds v. United States, 98 U.S.

11 145, 165-66 (1878) (“Marriage, while from its very nature a sacred obligation, is nevertheless, in

12 most civilized nations, a civil contract, and usually regulated by law. Upon it society may be

13 said to be built, and out of its fruits spring social relations and social obligations and duties.”).

14

Subsequent to Murphy, the Supreme Court has continued to view the biological link of

15 parents to children as deserving of special recognition and protection. See Michael H. v. Gerald

16 D., 491 U.S. 110, 120 n.1 (1989) (indicating that where, inter alia, a “husband and wife” are

17 “cohabiting,” there is a presumption that they are in a “harmonious and apparently exclusive

18 marital relationship”); Griswold v. Connecticut, 381 U.S. 479, 482 (1965) (noting the special

19 “intimate relation of husband and wife”); see also Lawrence v. Texas, 539 U.S. 558, 567 (2003)

20 (“[I]t would demean a married couple were it to be said marriage is simply about the right to

21 have sexual intercourse.”). And marriage has been noted to carry special legal entitlements for

22 those men and women who enter into it. See, e.g., Griswold¸ 381 U.S at 495 (noting it is hard to

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1 conceive of what “is more private or more intimate than a husband and wife’s marital relations”

2 and “the rights to marital privacy and to marry and raise a family are of similar order and

3 magnitude as the fundamental rights specifically protected” in the Constitution) (Goldberg, J.,

4 concurring); Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (determining right to “marry, 5 establish a home and bring up children” is a liberty right under the Fourteenth Amendment).10

6

The Supreme Court also has taken care to preserve and distinguish the rights of the

7 natural—that is, biological—family over “families” other than the biological. See Lehr v.

8 Robertson, 463 U.S 248, 256–57 (1983) (“The institution of marriage has played a critical role

9 both in defining the legal entitlements of family members and in developing the decentralized

10 structure of our democratic society. In recognition of that role . . . state laws almost universally 11 express an appropriate preference for the formal family.”) (footnotes omitted).11 It has noted that

12 “the Constitution protects the sanctity of the family precisely because the institution of the family

10 See also Caban v. Mohammed, 441 U.S. 380, 397 (1979) (“Even if it be assumed that each married parent after divorce has some substantive due process right to maintain his or her parental relationship . . . , it by no means follows that each unwed parent has any such right.”) (internal citations omitted) (Stewart, J., dissenting); Poe v. Ullman, 367 U.S. 497, 553 (1961) (recognizing that “the intimacy of husband and wife is necessarily an essential and accepted feature of the institution of marriage, an institution which the State not only must allow, but which always and in every age it has fostered and protected,” and noting also that the “State” may “exert its power . . . to say who may marry”) (Harlan, J., dissenting).
11 See also Santosky v. Kramer, 455 U.S. 745, 753 (1982) (noting the “absence of dispute” that “freedom of personal choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment,” and noting that “[e]ven when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life”); Trimble v. Gordon, 430 U.S. 762, 769 (1977) (describing the “family unit” as “perhaps the most fundamental social institution of our society”); Smith v. Org. of Foster Families for Equal. & Reform, 431 U.S. 816, 823, 843–45 (1977) (noting New York State’s support of laudable policy that “natural parents” provide the “positive, nurturing family relationships” and “normal family life in a permanent home” that offers the “best opportunity for children to develop and thrive” and noting the “usual understanding of ‘family’ implies biological relationships”) (internal citations omitted); Stanley v. Illinois, 405 U.S. 645, 651 (1972) (“The rights to conceive and to raise one’s children have been deemed essential, basic civil rights of man, and rights far more precious . . . than property rights.”) (internal citations and quotations omitted); Prince v. Massachusetts, 321 U.S. 158, 166 (1944) (“It is cardinal with us that the custody, care and nurture of the child reside first in the parents.”).
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1 is deeply rooted in this Nation’s history and tradition.” Moore v. City of E. Cleveland, Ohio, 431

2 U.S. 494, 503 (1977) (Powell, J., plurality opinion). The Court has indicated repeatedly that

3 “history and tradition” are the “source for ‘supplying . . . content to th[e] Constitutional

4 concept’” that biological family units are afforded additional protections under our nation’s laws.

5 Id. at 540 (citing Poe v. Ulman, 367 U.S. 497, 542 (1961) (Harlan, J., dissenting)). Thus, it is

6 and always has been the “‘traditions and (collective) conscience of our people,’” not the

7 “personal and private notions” of judges, that determine societal rights, including what marriage

8 is as an institution and who is entitled to participate in it. Griswold, 381 U.S. at 493 (citing

9 Snyder v. Commonwealth of Mass., 291 U.S. 97, 105 (1934)) (Goldberg, J., concurring).

10

In light of these decisions relying on the traditional understanding of marriage as only

11 between one man and one woman, I join Justice Black in the sentiment that “[o]ne of the most

12 effective ways of diluting or expanding a constitutionally guaranteed right is to substitute for the

13 crucial word or words of a constitutional guarantee another word or words, more or less flexible

14 and more or less restricted in meaning.” Griswold, 381 U.S. at 509 (Black, J., dissenting).

15

Marriage today, according to the federal government, means what it has always meant—a

16 holy union, essential to the survival of the species, between a man and a woman, the principal

17 purpose of which is to encourage responsible child rearing. Murphy set forth this understanding,

18 Baker v. Nelson reaffirmed it, and no Supreme Court case since Murphy gives me reason to

19 doubt that definition should not still stand.

20

Having found the interest in maintaining uniformity (including in the form of the 1996

21 status quo) legitimate, the means employed to advance this goal appear appropriate. As noted

22 above, BLAG argues that DOMA “ensures that similarly-situated couples [i.e., married same-sex

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1 couples and all unmarried couples] will have the same federal benefits [i.e., none] regardless of

2 which state they happen to live in, and avoids a confusing situation in which same-sex couples

3 would lose (or gain) federal marital status simply by moving between states with different

4 policies on recognition of same-sex marriages.” (BLAG Br. at 39–40 (emphasis added).) The

5 relevant discrimination, however, to be justified by BLAG is DOMA’s differential treatment of

6 married couples based on the sex of the persons constituting the couple. Married same-sex

7 couples are similarly-situated to married opposite-sex couples with respect to the relevant

8 characteristic at issue: marital status.

9

Windsor claims that the line DOMA draws fails rational basis review because the

10 purported justifications for the discrimination “make no sense” and “are impossible to credit” in

11 light of how the groups at issue are similarly situated. However, the regulation of federal

12 programs is emphatically the province of Congress. Having not previously defined the scope of

13 federal programs the way DOMA does should not forever bind Congress’s hands from doing so,

14 or make Congressional action nonsensical, especially when viewed in light of the clear and

15 unaltered judicial characterization of the nation’s historical understanding of marriage.

16

Windsor contends that DOMA creates complexity and establishes two tiers of married

17 couples in states that permit same-sex marriage. But the question of uniformity of marriage at

18 the state level is not DOMA’s concern. While the tension between state and federal policies in

19 this area are real, they are no greater than those that have existed among the states—tensions

20 which Windsor acknowledges reflect the essence of, and have endured under, our federal system.

21

I conclude, therefore, that it was rational for Congress to prefer uniform substantive

22 eligibility criteria for federal marital benefits for same-sex couples over “uniform” deference to

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1 varying state criteria. Such a goal may be an exception to Congress’s general deference to the

2 states in the area of marriage (even in the face of contentious state-level variation) but this in no

3 way makes the legislative classification employed in pursuit of uniformity irrational in light of

4 the tremendous deference we afford acts of Congress under rational basis review. See Heller,

5 509 U.S. at 321 (“[C]ourts are compelled under rational-basis review to accept a legislature’s

6 generalizations even when there is an imperfect fit between means and ends.”).

7

When, as here, an issue involves policy choices, the Supreme Court has cautioned that

8 “the appropriate forum for their resolution in a democracy is the legislature.” Maher v. Roe, 432

9 U.S. 464, 479 (1977). DOMA rationally serves the legitimate government interest in

10 maintaining the status quo of the definition of marriage pending evolution of the issue in the

11 states.

12

* * *

13

Because the recognition of the biological connection of marriage to childrearing and the

14 pursuit of uniformity (including in the form of preserving the status quo) are sufficient to support

15 DOMA under rational basis review, I choose not to discuss the other asserted rationales. Beach

16 Commc’ns, 508 U.S. at 317. Nevertheless, I next address whether sexual orientation

17 classifications should, as a matter of first impression in this Circuit, be subject to heightened

18 scrutiny in an equal protection analysis.

19 VI. Appropriate Level of Review for Sexual Orientation Discrimination

20

The Supreme Court has reserved heightened scrutiny for a small number of subject

21 classifications—principally race, alienage, nationality, sex, and illegitimacy. Heightened

22 scrutiny attaches in recognition that these traits have been used to impose, and are therefore

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1 closely associated with, social inequality. Therefore, government conduct that employs these

2 classifications is suspect and must have more than a legitimate or merely permissible

3 justification.

4

The question of the appropriate level of scrutiny for laws that discriminate in respect of

5 the definition of marriage on the basis of sexual orientation is an issue of first impression in this

6 Circuit. See Able v. United States, 155 F.3d 628, 632 (2d Cir. 1998) (declining to consider, in

7 military context where judicial deference is “at its apogee,” the question whether sexual

8 orientation discrimination would trigger heightened scrutiny because challengers did not argue

9 for “any more onerous standard than the rational basis test” and therefore “the sole question

10 before us is whether the Act survives rational basis review”).

11

“[W]here individuals in the group affected by a law have distinguishing characteristics

12 relevant to interests the State has the authority to implement, the courts have been very reluctant,

13 as they should be in our federal system and with our respect for the separation of powers, to

14 closely scrutinize legislative choices as to whether, how, and to what extent those interests

15 should be pursued.” City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 441–42

16 (1985). The Supreme Court has repeatedly rejected arguments by litigants and rulings by lower

17 courts that would grant heightened review to legislative distinctions based on mental handicap,

18 id. at 442–47, kinship, Lyng v. Castillo, 477 U.S. 635, 638 (1986), age, Mass. Bd. of Ret. v.

19 Murgia, 427 U.S. 307, 314 (1976), and poverty, San Antonio Indep. Sch. Dist. v. Rodriguez, 411

20 U.S. 1, 29 (1973).

21

The Supreme Court, despite having the opportunity to apply heightened review,

22 invalidated the provision of the Colorado Constitution challenged in Romer under rational basis

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1 review. See 517 U.S. 620 (1996). That Romer was decided under the rational basis standard

2 without a need to employ a more exacting level of review does not mean that the question of the

3 appropriate tier of equal protection scrutiny was not before the Court. Indeed, although the

4 Romer plaintiffs “elected not to appeal” the lower court’s determination that sexual orientation

5 does not constitute a “suspect” or “quasi-suspect” classification, the Supreme Court “evidently

6 agree[d] that ‘rational basis’ . . . is the governing standard.” Romer, 517 U.S. at 641 n.1 (Scalia,

7 J., dissenting).

8

Until the majority’s opinion, DOMA had never been held by the Supreme Court or any

9 Circuit Court to involve a suspect or quasi-suspect classification. Indeed, in light of the Supreme

10 Court’s reluctance to apply heightened scrutiny to new categories of discrimination, and in

11 consideration of the fact that it declined to do so in Romer, eleven other circuits have also not

12 taken this step. See Massachusetts v. HHS, 682 F.3d at 9; Davis v. Prison Health Servs., 679

13 F.3d 433, 438 (6th Cir. 2012); Perry v. Brown, 671 F.3d 1052, 1082 (9th Cir. 2012); Cook v.

14 Gates, 528 F.3d 42, 61–62 (1st Cir. 2008); Price-Cornelison v. Brooks, 524 F.3d 1103, 1113

15 (10th Cir. 2008); Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 867 (8th Cir. 2006); Johnson

16 v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004); Lofton v. Sec’y of Dep’t of Children & Family

17 Servs., 358 F.3d 804, 818 (11th Cir. 2004); Thomasson v. Perry, 80 F.3d 915, 927–28 (4th Cir.

18 1996); High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563, 573–74 (9th Cir.

19 1990); Ben-Shalom v. Marsh, 881 F.2d 454, 464 (7th Cir. 1989); Woodward v. United States,

20 871 F.2d 1068, 1076 (Fed. Cir. 1989); Padula v. Webster, 822 F.2d 97, 103 (D.C. Cir. 1987);

21 Nat’l Gay Task Force v. Bd. of Educ. of City of Okla. City, 729 F.2d 1270, 1273 (10th Cir. 1984),

22 aff’d by an equally divided court, 470 U.S. 903 (1985) (per curiam). In Massachusetts v. HHS,

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1 the First Circuit rejected the application of strict and intermediate scrutiny, recognized that

2 DOMA satisfies rational basis review, and yet went on to create a novel “plus” level of scrutiny

3 applicable to DOMA, in contravention of the Supreme Court’s holding in Baker. Such judicial

4 impositions of new levels of review deprive the American people of further consideration of

5 DOMA through their democratically elected representatives.

6

Significantly, numerous Circuit Courts of Appeals decisions declining to extend

7 heightened scrutiny to sexual orientation discrimination post-date both Romer v. Evans and

8 Lawrence v. Texas. Windsor argues that the determinations made regarding the appropriate level

9 of scrutiny in decisions such as Cook v. Gates, 528 F.3d 42, 61 (1st Cir. 2008) (rational-basis

10 review applies, and “Lawrence does not alter this conclusion”) and Witt v. Dep’t of Air Force,

11 527 F.3d 806, 821 (9th Cir. 2008) (Circuit precedent requiring rational-basis review “was not

12 disturbed by Lawrence, which declined to address equal protection”) are distinguishable because

13 the cases arose in a military context where judicial deference is “at its apogee.” See Able, 155

14 F.3d at 632. But as the voluminous authority cited above makes clear, see Section IV, supra,

15 whatever additional deference courts afford Congressional action in the military context, rational

16 basis review is, even in the civilian context, highly deferential to the legislature, not a mechanism

17 for judges to second guess properly enacted legislative judgments, and the “paradigm of

18 restraint.” See Beach Commc’ns, 508 U.S. at 314. See also Perry, 671 F.3d at 1080 n.13

19 (relying, in the civilian context, on rulings that declined to apply heightened scrutiny to sexual

20 orientation classifications in the military context). Indeed, the Department of Justice so

21 acknowledged last year—until it changed its constitutional position following the President’s

22 announcement of a change in policy.

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1

Therefore, I would join these eleven circuits, driven not only by a reluctance to do that

2 which the Supreme Court itself has not undertaken when given the chance, but also out of

3 routine respect for extant precedent. Subjecting the federal definition of marriage to heightened

4 scrutiny would defy or, at least, call into question the continued validity of Baker, which we are

5 not empowered to do. Baker involved a law that prohibited same-sex marriage, and thus

6 discriminated on the basis of sexual orientation. Holding that sexual orientation merits

7 heightened scrutiny would be substantively inconsistent with Baker since (1) any legislative

8 action faces a high likelihood of invalidation under heightened scrutiny, and (2) it would be

9 curious to apply heightened scrutiny to a form of discrimination that does not raise a substantial

10 federal question of constitutional law. See Massachusetts v. HHS, 682 F.3d at 9 (“[T]o create

11 such a new suspect classification for same-sex relationships would have far-reaching

12 implications—in particular, by implying an overruling of Baker, which we are neither

13 empowered to do nor willing to predict.”). Any such development must come from the elected 14 representatives of the American people.12

12 Indeed, one elected representative—the President—has already taken steps to mitigate the harms visited upon same-sex couples by DOMA. The President has issued a memorandum requiring all executive departments and agencies to take steps, consistent with existing law, to extend benefits to the same-sex domestic partners of federal employees, and where applicable, to the children of same-sex domestic partners of federal employees. See Presidential Memorandum, Extension of Benefits to Same-Sex Domestic Partners of Federal Employees (June 20, 2010). The Office of Personnel Management (“OPM”) was directed to clarify that for purposes of employee assistance programs, same-sex domestic partners and their children qualify as “family members.” In addition, pursuant to a Presidential Memorandum Regarding Federal Benefits and Non-discrimination (June 17, 2009), OPM issued regulations expanding the definition of “qualified relatives” to include same-sex domestic partners of eligible federal employees in the federal long-term care insurance program. See 5 CFR 875.213 (June 1, 2010).
In Congress, efforts provide various types of federal benefits for same-sex domestic partners—such as health insurance, life insurance, pensions, and other employment-related benefits—are routinely introduced, if unsuccessful. See, e.g., S. 2521, 110th Cong. (2007); H.R. 4838, 110th Cong. (2007) (bills died in committee); S. 1102, 111th Cong. (2009); H.R. 2517, 111th Cong. (2009) (no action taken on either version after being reported out
-39-

CCasaese1::102-c2v3-3058435D-oBcSuJm-JeCnFt: 4D48ocumPeangte1: 2480-2 1F0ile/1d80/250/3102/14 7P50a1g2e240 o4f 040

1

Whatever the merits of doing so in a context other than the marital union, I conclude that,

2 in respect of the unique institution of marriage it would be imprudent to announce a new rule

3 under which sexual orientation is subject to heightened scrutiny.

4

CONCLUSION

5

For the foregoing reasons, I would hold that per Baker, the legislative distinction drawn

6 by DOMA satisfies rational basis review and is therefore constitutional.

7

Whether connections between marriage, procreation, and biological offspring recognized

8 by DOMA and the uniformity it imposes are to continue is not for the courts to decide, but rather

9 an issue for the American people and their elected representatives to settle through the

10 democratic process. Courts should not intervene where there is a robust political debate because

11 doing so poisons the political well, imposing a destructive anti-majoritarian constitutional ruling

12 on a vigorous debate. Courts should not entertain claims like those advanced here, as we can

13 intervene in this robust debate only to cut it short.

14

I respectfully dissent from the majority opinion to the extent it holds otherwise.

of committees); S. 1910, 112th Cong. (2011) (reported out of committee); H.R. 3485, 112th Cong. (2011) (remains in committee).
-40-

 
 Case: 1:10-cv-8435 As of: 02/09/2015 12:54 AM EST 1 of 18
CLOSED,CASREF,ECF
U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:10−cv−08435−BSJ−JCF

Windsor v. The United States Of America Assigned to: Judge Barbara S. Jones Referred to: Magistrate Judge James C. Francis Case in other court: USCA 2nd Circuit, 12−02335
USCA 2nd Circuit, 12−02435 Cause: 26:7422 IRS: Refund Taxes
Plaintiff

Date Filed: 11/09/2010 Date Terminated: 06/07/2012 Jury Demand: None Nature of Suit: 870 Taxes Jurisdiction: U.S. Government Defendant

Edith Schlain Windsor In her Official capacity as Executor of the estate of Thea Clara Spyer

represented by Roberta Ann Kaplan Paul, Weiss, Rifkind, Wharton &Garrison LLP (NY) 1285 Avenue of the Americas New York, NY 10019 212−373−3000 Fax: 212−373−2037 Email: rkaplan@paulweiss.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alexis Brie Karteron New York Civil Liberties Union 125 Broad Street, 17th floor New York, NY 10004 (212) 607−3300 Fax: (212)−607−3318 Email: akarteron@nyclu.org ATTORNEY TO BE NOTICED

Andrew James Ehrlich Paul, Weiss, Rifkind, Wharton &Garrison LLP (NY) 1285 Avenue of the Americas New York, NY 10019 (212) 373−3166 Fax: 212.373−0166 Email: aehrlich@paulweiss.com ATTORNEY TO BE NOTICED

Arthur Nelson Eisenberg New York Civil Liberties Union 125 Broad Street, 19th floor New York, NY 10004 (212) 607−3300 Fax: (212) 607−3318 Email: arteisenberg@nyclu.org ATTORNEY TO BE NOTICED

James Dixon Esseks ACLU Lesbian and Gay Rights Project 125 Broad Street New York, NY 10004−2400 (212)−549−2623 Fax: (212)−549−2650 Email: jesseks@aclu.org ATTORNEY TO BE NOTICED

Melissa Goodman

Case: 1:10-cv-8435 As of: 02/09/2015 12:54 AM EST 2 of 18
New York Civil Liberties Union 125 Broad Street, 17th floor New York, NY 10004 (212) 607−3300 Fax: (212) 607−3318 Email: mgoodman@nyclu.org ATTORNEY TO BE NOTICED
Rose Ann Saxe American Civil Liberties Union Foundation (NYC) 125 Broad Street 18th Floor New York, NY 10004 (212) 549−2500 Fax: (212)549−2500 Email: rsaxe@aclu.org ATTORNEY TO BE NOTICED

V. Defendant The United States Of America
Defendant Bipartisan Legal Advisory Group of the U.S. House of Representatives

represented by Jean Lin U.S. Dep't of Justice, Civil Div 20 Massachusetts Ave., N.W., 7th Fl. Washington, DC 20530 202 514−3716 Fax: (202) 616−8470 Email: jean.lin@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Paul D. Clement Bancroft PLLC 1919 "M" Street, N.W., Suite 470 Washington, DC 20036 (202) 234−0090 Fax: (202) 234−2806 Email: pclement@bancroftpllc.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Conor Dugan Bancroft PLLC 1919 "M" Street, N.W., Suite 470 Washington, DC 20036 (202)−416−0261 Fax: (202)−234−2806 Email: cdugan@bancroftpllc.com ATTORNEY TO BE NOTICED
H Christopher Bartolomucci Bancroft PLLC 1919 "M" Street, N.W., Suite 470 Washington, DC 20036 (202)−234−0090 Fax: (202)−234−2806 Email: cbartolomucci@bancroftpllc.com

Case: 1:10-cv-8435 As of: 02/09/2015 12:54 AM EST 3 of 18

ATTORNEY TO BE NOTICED

Kerry William Kircher General Counsel, U.S. House of Representatives 219 Cannon House Office Building Washington, DC 20515 (202)−225−9700 Fax: (202)−226−1360 Email: kerry.kircher@mail.house.gov ATTORNEY TO BE NOTICED

Richard A. Cirillo King &Spalding LLP (NYC) 1185 Avenue of the Americas New York, NY 10036 (212) 556−2337 Fax: (212) 556−2222 Email: RCirillo@KSLAW.com TERMINATED: 04/29/2011

Amicus New York State

represented by Simon Heller State of New York Office of the Attorney General 120 Broadway New York, NY 10271 (212)−416−8025 Fax: (212)−416−8962 Email: simon.heller@ag.ny.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 11/09/2010 11/09/2010 11/09/2010 11/09/2010 11/10/2010
11/23/2010
12/02/2010 12/02/2010

# Docket Text
1 COMPLAINT against The United States Of America. (Filing Fee $ 350.00, Receipt Number 920552)Document filed by Edith Schlain Windsor.(ama) (Entered: 11/09/2010)
SUMMONS ISSUED as to The United States Of America, U.S. Attorney and U.S. Attorney General. (ama) (Entered: 11/09/2010)
Magistrate Judge James C. Francis IV is so designated. (ama) (Entered: 11/09/2010)
Case Designated ECF. (ama) (Entered: 11/09/2010)
2 SUMMONS RETURNED EXECUTED Summons and Complaint served. The United States Of America served on 11/9/2010, answer due 1/8/2011. Service was accepted by Calvin Coleman, Legal Technician. Service was made by Certified Mail. Document filed by Edith Schlain Windsor. (Kaplan, Roberta) (Entered: 11/10/2010)
3 ORDER REFERRING CASE TO MAGISTRATE JUDGE. Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for General Pretrial (includes scheduling, discovery, non−dispositive pretrial motions, and settlement). Referred to Magistrate Judge James C. Francis. (Signed by Judge Barbara S. Jones on 11/23/10) (djc) (Entered: 11/23/2010)
4 NOTICE OF APPEARANCE by Jean Lin on behalf of The United States Of America (Lin, Jean) (Entered: 12/02/2010)
5 NOTICE OF CHANGE OF ADDRESS by Alexis Brie Karteron on behalf of Edith Schlain Windsor. New Address: New York Civil Liberties Union, 125 Broad Street, 19th Floor, New York, NY, US 10004, 212−607−3300. (Karteron, Alexis)

Case: 1:10-cv-8435 As of: 02/09/2015 12:54 AM EST 4 of 18

12/03/2010
12/03/2010 12/28/2010 01/28/2011
02/02/2011 02/25/2011 03/15/2011
03/15/2011 03/15/2011 04/18/2011
04/18/2011

(Entered: 12/02/2010)
6 ORDER: By February 9, 2011 the defendant shall serve and file its motion to dismiss. Plaintiff shall answer the motion by March 11, 2011 and shall make any cross−motion for summary judgment. By March 25, 2011, defendant shall submit its reply on its motion to dismiss and submit any application to stay plaintiff's cross−motion for summary judgment. If defendant does not apply for a stay, it shall answer plaintiff's motion for summary judgment by April 8, 2011. (Signed by Magistrate Judge James C. Francis on 12/3/2010) Copies Mailed By Chambers. (jpo) Modified on 1/5/2011 (jpo). (Entered: 12/03/2010)
Minute Entry for proceedings held before Magistrate Judge James C. Francis: Initial Pretrial Conference held on 12/3/2010. (mro) (Entered: 12/06/2010)
7 NOTICE OF APPEARANCE by Melissa Goodman on behalf of Edith Schlain Windsor (Goodman, Melissa) (Entered: 12/28/2010)
8 SCHEDULING ORDER: This Court's December 3, 2010 Order is revised as follow: By March 11, 2011, the defendant shall serve and file its motion to dismiss. Plaintiff Sha11 answer the motion by April 11, 2011 and shall make any cross−motion for summary judgment. By April 25, 2011, defendant shall submit its reply on its motion to dismiss and submit any application to stay plaintiff's cross−motion for summary judgment. If defendant does not apply for a stay, it shall answer plaintiff's motion for summary judgment by May 9, 2011. (Motions due by 3/11/2011. Cross Motions due by 4/11/2011. Responses due by 4/11/2011)(Signed by Magistrate Judge James C. Francis on 1/26/11) (djc) (Entered: 01/28/2011)
9 AMENDED COMPLAINT amending 1 Complaint against The United States Of America.Document filed by Edith Schlain Windsor. Related document: 1 Complaint filed by Edith Schlain Windsor.(mbe) (Entered: 02/03/2011)
10 NOTICE of Notice to the Court by Defendant the United States of America (with attachments). Document filed by The United States Of America. (Attachments: # 1 Attachment, # 2 Attachment)(Lin, Jean) (Entered: 02/25/2011)
11 ORDER that: 1) Congress, should it wish to intervene in this matter, shall do so by April 18, 2011 by motion pursuant to Fed. R. Civ. Pro. 24(a), consistent with 28 U.S.C. §530D; and 2) Counsel for the plaintiff, the Department of Justice, and any Congressional intervenor shall appear on May 9, 2011 at 9:30 am for a conference with the Court to discuss how this case should proceed in light of the President's decision, as announced by the Attorney General on February 23, 2011, that Section 3 of the Defense of Marriage Act ("DOMA"), 1 U.S.C. § 7 as applied to same−sex couples who are legally married under state law, violates the equal protection component of the Fifth Amendment. SO ORDERED. (Status Conference set for 5/9/2011 at 09:30 AM before Magistrate Judge James C. Francis) (Signed by Magistrate Judge James C. Francis on 3/15/2011) (lnl) (Entered: 03/15/2011)
Minute Entry for proceedings held before Magistrate Judge James C. Francis: Telephone Discovery Conference held on 3/15/2011. (mro) (Entered: 03/17/2011)
Set Deadlines: Motions due by 4/18/2011. (lnl) (Entered: 03/21/2011)
12 MOTION to Intervene a party defendant in this matter for the limited purpose of litigating the constitutionality of Section III of the Defense of Marriage Act, Pub. L. No. 104−199, 110 Stat. 2419 (Sept. 21, 1996), codified at 1 U.S.C. § 7.. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Attachments: # 1 proposed order, # 2 Certificate of Service)(Clement, Paul) (Entered: 04/18/2011)
13 MEMORANDUM OF LAW in Support re: 12 MOTION to Intervene a party defendant in this matter for the limited purpose of litigating the constitutionality of Section III of the Defense of Marriage Act, Pub. L. No. 104−199, 110 Stat. 2419 (Sept. 21, 1996), codified at 1 U.S.C. § 7. MOTION to Intervene a party defendant in this matter for the limited purpose of litigating the constitutionality of Section III of the Defense of Marriage Act, Pub. L. No. 104−199, 110 Stat. 2419 (Sept. 21, 1996), codified at 1 U.S.C. § 7.. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Attachments: # 1 Exhibit 1, # 2

Case: 1:10-cv-8435 As of: 02/09/2015 12:54 AM EST 5 of 18

04/25/2011 04/25/2011 04/26/2011
05/02/2011 05/02/2011 05/02/2011 05/05/2011
05/05/2011
05/09/2011 05/11/2011 05/12/2011

Certificate of Service)(Clement, Paul) (Entered: 04/18/2011)
14 MOTION for Paul D. Clement, Richard A. Cirillo and the law firm of King &Spalding LLP to Withdraw as Attorney. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives. Return Date set for 5/25/2011 at 09:30 AM. (Attachments: # 1 Certificate of Service)(Cirillo, Richard) (Entered: 04/25/2011)
15 DECLARATION of Richard A. Cirillo in Support re: 14 MOTION for Paul D. Clement, Richard A. Cirillo and the law firm of King &Spalding LLP to Withdraw as Attorney.. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Cirillo, Richard) (Entered: 04/25/2011)
16 STIPULATION AND ORDER FOR SUBSTITUTION OF COUNSEL: that Bancroft PLLC is hereby substituted for King &Spalding LLP as counsel in this action for intervenor Bipartisan Legal Advisory Group of the U.S. House of Representatives. Motions terminated: 14 MOTION for Paul D. Clement, Richard A. Cirillo and the law firm of King &Spalding LLP to Withdraw as Attorney filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Signed by Magistrate Judge James C. Francis on 4/26/2011) (tro) (Entered: 04/29/2011)
17 NOTICE OF APPEARANCE by Conor Dugan on behalf of Bipartisan Legal Advisory Group of the U.S. House of Representatives (Dugan, Conor) (Entered: 05/02/2011)
18 NOTICE OF APPEARANCE by Conor Dugan on behalf of Bipartisan Legal Advisory Group of the U.S. House of Representatives (Dugan, Conor) (Entered: 05/02/2011)
19 NOTICE OF APPEARANCE by H Christopher Bartolomucci on behalf of Bipartisan Legal Advisory Group of the U.S. House of Representatives (Bartolomucci, H) (Entered: 05/02/2011)
20 RESPONSE to Motion re: 12 MOTION to Intervene a party defendant in this matter for the limited purpose of litigating the constitutionality of Section III of the Defense of Marriage Act, Pub. L. No. 104−199, 110 Stat. 2419 (Sept. 21, 1996), codified at 1 U.S.C. § 7. MOTION to Intervene a party defendant in this matter for the limited purpose of litigating the constitutionality of Section III of the Defense of Marriage Act, Pub. L. No. 104−199, 110 Stat. 2419 (Sept. 21, 1996), codified at 1 U.S.C. § 7.. Document filed by The United States Of America. (Attachments: # 1 Text of Proposed Order)(Lin, Jean) (Entered: 05/05/2011)
21 NOTICE of Notice of Intent to File Reply re: 20 Response to Motion,, 12 MOTION to Intervene a party defendant in this matter for the limited purpose of litigating the constitutionality of Section III of the Defense of Marriage Act, Pub. L. No. 104−199, 110 Stat. 2419 (Sept. 21, 1996), codified at 1 U.S.C. § 7. MOTION to Intervene a party defendant in this matter for the limited purpose of litigating the constitutionality of Section III of the Defense of Marriage Act, Pub. L. No. 104−199, 110 Stat. 2419 (Sept. 21, 1996), codified at 1 U.S.C. § 7.. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Kircher, Kerry) (Entered: 05/05/2011)
Minute Entry for proceedings held before Magistrate Judge James C. Francis: Initial Pretrial Conference held on 5/9/2011. (cd) (Entered: 05/12/2011)
22 REVISED SCHEDULING ORDER: Plaintiff's summary judgment Motions due by 7/15/2011 (unless the House has not identified any experts pursuant to paragraphs 5 and 6 above, in which case plaintiff's motion for summary judgment shall be filed on or before June 24, 2011); Responses due by 8/15/2011; Replies due by 9/2/2011. All fact and Expert Discovery due by 7/11/2011. (Signed by Magistrate Judge James C. Francis on 5/11/11). (djc) (Entered: 05/11/2011)
23 REPLY to Response to Motion re: 12 MOTION to Intervene a party defendant in this matter for the limited purpose of litigating the constitutionality of Section III of the Defense of Marriage Act, Pub. L. No. 104−199, 110 Stat. 2419 (Sept. 21, 1996), codified at 1 U.S.C. § 7. MOTION to Intervene a party defendant in this matter for the limited purpose of litigating the constitutionality of Section III of the

Case: 1:10-cv-8435 As of: 02/09/2015 12:54 AM EST 6 of 18

05/12/2011 05/27/2011
06/02/2011 06/13/2011
06/24/2011 06/24/2011 06/24/2011 06/24/2011
06/24/2011 06/24/2011 06/24/2011 06/24/2011 06/24/2011 06/24/2011 07/26/2011

Defense of Marriage Act, Pub. L. No. 104−199, 110 Stat. 2419 (Sept. 21, 1996), codified at 1 U.S.C. § 7.. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Kircher, Kerry) (Entered: 05/12/2011)
24 NOTICE OF CHANGE OF ADDRESS by Melissa Goodman on behalf of Edith Schlain Windsor. New Address: NYCLU, 125 Broad St, 19th Floor, New York, NY, USA 10004, 212.607.3300. (Goodman, Melissa) (Entered: 05/12/2011)
25 STIPULATION AND ORDER GOVERNING PROTECTION AND EXCHANGE OF CONFIDENTIAL INFORMATION...regarding procedures to be followed that shall govern the handling of confidential material...This order may be modified by further order of the Court. (Signed by Magistrate Judge James C. Francis on 5/26/11) (cd) (Entered: 05/27/2011)
26 MEMORANDUM AND ORDER granting 12 Motion to Intervene as a party defendant. (Signed by Magistrate Judge James C. Francis on 6/2/11); Copies mailed by Chambers. (djc) (Entered: 06/02/2011)
27 ENDORSED LETTER addressed to Magistrate Judge James C. Francis IV from Roberta A. Kaplan dated 6/9/2011 re: Counsel for the Plaintiff writes to provide the Court with an update concerning the schedule in the above−captioned matter and to request permission to file an initial moving brief of up to 45 pages. ENDORSEMENT: Application granted. (Signed by Judge Barbara S. Jones on 6/13/2011) (ab) (Entered: 06/13/2011)
28 MOTION for Summary Judgment. Document filed by Edith Schlain Windsor.(Ehrlich, Andrew) (Entered: 06/24/2011)
29 MEMORANDUM OF LAW in Support re: 28 MOTION for Summary Judgment.. Document filed by Edith Schlain Windsor. (Ehrlich, Andrew) (Entered: 06/24/2011)
30 AFFIDAVIT of Andrew J. Ehrlich in Support re: 28 MOTION for Summary Judgment.. Document filed by Edith Schlain Windsor. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8)(Ehrlich, Andrew) (Entered: 06/24/2011)
31 AFFIDAVIT of Edith Schlain Windsor in Support re: 28 MOTION for Summary Judgment.. Document filed by Edith Schlain Windsor. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L)(Ehrlich, Andrew) (Entered: 06/24/2011)
32 AFFIDAVIT of Letitia Anne Peplau, Ph.D. in Support re: 28 MOTION for Summary Judgment.. Document filed by Edith Schlain Windsor. (Ehrlich, Andrew) (Entered: 06/24/2011)
33 AFFIDAVIT of Nancy F. Cott, Ph.D. in Support re: 28 MOTION for Summary Judgment.. Document filed by Edith Schlain Windsor. (Ehrlich, Andrew) (Entered: 06/24/2011)
34 AFFIDAVIT of Michael Lamb, Ph.D. in Support re: 28 MOTION for Summary Judgment.. Document filed by Edith Schlain Windsor. (Ehrlich, Andrew) (Entered: 06/24/2011)
35 AFFIDAVIT of George Chauncey, Ph.D. in Support re: 28 MOTION for Summary Judgment.. Document filed by Edith Schlain Windsor. (Ehrlich, Andrew) (Entered: 06/24/2011)
36 AFFIDAVIT of Gary Segura, Ph.D. in Support re: 28 MOTION for Summary Judgment.. Document filed by Edith Schlain Windsor. (Ehrlich, Andrew) (Entered: 06/24/2011)
37 RULE 56.1 STATEMENT. Document filed by Edith Schlain Windsor. (Ehrlich, Andrew) (Entered: 06/24/2011)
38 FILING ERROR − DEFICIENT DOCKET ENTRY − MOTION for Leave to File Brief Amicus Curiae of New York State in Support of Plaintiff. Document filed by New York State. (Attachments: # 1 Memorandum of Law in Support, # 2 Proposed

Case: 1:10-cv-8435 As of: 02/09/2015 12:54 AM EST 7 of 18

07/26/2011
07/26/2011 07/26/2011 07/26/2011
07/27/2011 07/27/2011 07/28/2011 07/29/2011 07/29/2011 07/29/2011 07/29/2011

Brief)(Heller, Simon) Modified on 7/26/2011 (ldi). (Entered: 07/26/2011)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − DEFICIENT DOCKET ENTRY ERROR. Note to Attorney Simon Heller to RE−FILE Document 38 MOTION for Leave to File Brief Amicus Curiae of New York State in Support of Plaintiff. ERROR(S): Supporting documents must be filed separately, each receiving their own document number. Memorandum of Law in Support of Motion is found under the event list Replies, Opposition and Supporting Documents. (ldi) (Entered: 07/26/2011)
39 FILING ERROR − DEFICIENT DOCKET ENTRY − MEMORANDUM OF LAW in Support re: 38 MOTION for Leave to File Brief Amicus Curiae of New York State in Support of Plaintiff. Document filed by New York State. (Heller, Simon) Modified on 7/27/2011 (ldi). (Entered: 07/26/2011)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − DEFICIENT DOCKET ENTRY ERROR. Note to Attorney Simon Heller to RE−FILE Document 39 Memorandum of Law in Support of Motion. ERROR(S): Document linked to filing error. ***REMINDER*** You must first re−file the Motion, then file the Memorandum of Law and link to that motion. (ldi) (Entered: 07/27/2011)
42 ENDORSED LETTER addressed to Judge Barbara S. Jones and Magistrate Judge James C. Francis from Conor B. Dugan dated 7/26/11 re: counsel for Defendant−Intervenor the Bipartisan Legal Advisory Group of the U.S. House of Representatives respectfully writes to request permission to file briefs totaling 70 pages for our opposition to plaintiff's motion for summary judgment and in support of our separate motion to dismiss, to be apportioned as necessary. ENDORSEMENT: Application granted. So Ordered. (Signed by Judge Barbara S. Jones on 7/26/11) (pl) Modified on 7/27/2011 (pl). (Entered: 07/27/2011)
40 CONSENT MOTION for Leave to File amicus curiae brief in support of the Plaintiff. Document filed by New York State. (Attachments: # 1 Proposed Brief)(Heller, Simon) (Entered: 07/27/2011)
41 MEMORANDUM OF LAW in Support re: 40 CONSENT MOTION for Leave to File amicus curiae brief in support of the Plaintiff.. Document filed by New York State. (Heller, Simon) (Entered: 07/27/2011)
43 MEMORANDUM AND ORDER: For the reasons listed herein, the plaintiff's letter motion to compel is granted to the extent that BLAG shall answer Interrogatories 1 and 3 and RFA no. 1 by August 1, 2011. In all other respects, the motion is denied. (Signed by Magistrate Judge James C. Francis on 7/28/2011) Copies Mailed By Chambers. (mro) (Entered: 07/28/2011)
44 Letter addressed to Magistrate Judge James C. Francis IV from Julie E. Fink dated 7/19/2011 re: It has come to our attention that the incorrect documents were inadvertently included as Exhibits A and B to plaintiff's July 18 letter motion to compel. Document filed by Edith Schlain Windsor.(lmb) (Entered: 07/29/2011)
45 Letter addressed to Magistrate Judge James C. Francis IV from Roberta A. Kaplan dated 7/18/2011 re: We respectfully submit this letter in accordance with Fed. R. Civ. P. 37 to compel responses to certain of the interrogatories and requests for admission that we propounded on party−defendant, the Bipartisan Legal Advisory Group of the House of Representatives ("BLAG"). Document filed by Edith Schlain Windsor.(lmb) (Entered: 07/29/2011)
46 Letter addressed to Magistrate Judge James C. Francis IV from Paul D. Clement dated 7/25/2011 re: The House respectfully requests that the Court deny Plaintiff's motion to compel further discovery responses. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives.(lmb) (Entered: 07/29/2011)
47 Letter addressed to Magistrate Judge James C. Francis IV from Roberta A. Kaplan dated 7/25/2011 re: Because, in their letter dated July 25, 2011 (the "July 25 letter"), the Bipartisan Legal Advisory Group of the House of Representatives ("BLAG") adds little to their initial objections refusing to respond in substance to Mr. Windsor's discovery requests, this reply will be brief. Plaintiff respectfully requests that the Court grant her motion to compel. Document filed by Edith

Case: 1:10-cv-8435 As of: 02/09/2015 12:54 AM EST 8 of 18

08/01/2011 08/01/2011 08/01/2011 08/01/2011 08/01/2011 08/01/2011 08/01/2011 08/01/2011
08/01/2011
08/01/2011
08/01/2011
08/01/2011
08/01/2011
08/01/2011

Schlain Windsor.(lmb) (Entered: 07/29/2011)
48 NOTICE OF APPEARANCE by Kerry William Kircher on behalf of Bipartisan Legal Advisory Group of the U.S. House of Representatives (Kircher, Kerry) (Entered: 08/01/2011)
49 MOTION to Dismiss Amended Complaint. Document filed by The United States Of America.(Lin, Jean) (Entered: 08/01/2011)
50 MEMORANDUM OF LAW in Opposition re: 28 MOTION for Summary Judgment.. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Kircher, Kerry) (Entered: 08/01/2011)
51 RULE 56.1 STATEMENT. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Kircher, Kerry) (Entered: 08/01/2011)
52 MOTION to Dismiss. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives.(Kircher, Kerry) (Entered: 08/01/2011)
53 MEMORANDUM OF LAW in Support re: 52 MOTION to Dismiss.. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Kircher, Kerry) (Entered: 08/01/2011)
54 DECLARATION of Conor B. Dugan in Opposition re: 28 MOTION for Summary Judgment.. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Kircher, Kerry) (Entered: 08/01/2011)
55 FILING ERROR − ELECTRONIC FILING FOR NON−ECF DOCUMENT − DECLARATION of Dugan Exhibit A in Opposition re: 28 MOTION for Summary Judgment.. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Kircher, Kerry) Modified on 8/2/2011 (db). (Entered: 08/01/2011)
56 FILING ERROR − ELECTRONIC FILING FOR NON−ECF DOCUMENT − DECLARATION of Dugan Exhibit B in Opposition re: 28 MOTION for Summary Judgment.. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Kircher, Kerry) Modified on 8/2/2011 (db). (Entered: 08/01/2011)
57 FILING ERROR − ELECTRONIC FILING FOR NON−ECF DOCUMENT − DECLARATION of Dugan Exhibit C in Opposition re: 28 MOTION for Summary Judgment.. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Kircher, Kerry) Modified on 8/2/2011 (db). (Entered: 08/01/2011)
58 FILING ERROR − ELECTRONIC FILING FOR NON−ECF DOCUMENT − DECLARATION of Dugan Exhibit D in Opposition re: 28 MOTION for Summary Judgment.. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Kircher, Kerry) Modified on 8/2/2011 (db). (Entered: 08/01/2011)
59 FILING ERROR − ELECTRONIC FILING FOR NON−ECF DOCUMENT − DECLARATION of Dugan Exhibit E−1 in Opposition re: 28 MOTION for Summary Judgment.. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Kircher, Kerry) Modified on 8/2/2011 (db). (Entered: 08/01/2011)
60 FILING ERROR − ELECTRONIC FILING FOR NON−ECF DOCUMENT − DECLARATION of Dugan Exhibit E−2 in Opposition re: 28 MOTION for Summary Judgment.. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Kircher, Kerry) Modified on 8/2/2011 (db). (Entered: 08/01/2011)
61 FILING ERROR − ELECTRONIC FILING FOR NON−ECF DOCUMENT − DECLARATION of Dugan Exhibit F in Opposition re: 28 MOTION for Summary Judgment.. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Kircher, Kerry) Modified on 8/3/2011 (db). (Entered: 08/02/2011)

Case: 1:10-cv-8435 As of: 02/09/2015 12:54 AM EST 9 of 18

08/01/2011 08/02/2011 08/03/2011 08/05/2011 08/10/2011 08/10/2011 08/10/2011 08/15/2011
08/19/2011 08/19/2011 08/19/2011 08/19/2011

***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − NON−ECF DOCUMENT ERROR. Note to Attorney Kerry William Kircher. Document Nos. [55−60] Exhibits are not filed, they may only be added as ATTACHMENTS to documents that are permitted to be filed via ECF. This document is not filed via ECF. (db) (Entered: 08/02/2011)
62 DECLARATION of Conor B. Dugan in Opposition re: 28 MOTION for Summary Judgment.. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E (part 1), # 6 Exhibit E (part 2), # 7 Exhibit F)(Kircher, Kerry) (Entered: 08/02/2011)
63 MEMO ENDORSED: granting 40 Motion for Leave to File Brief for the state of New York as Amicus Curiae in Support of the Plaintiff. ENDORSEMENT: Motion granted. (Signed by Magistrate Judge James C. Francis on 8/3/2011) (mbe) (Entered: 08/03/2011)
64 ENDORSED LETTER addressed to Judge Barbara S. Jones and Magistrate Judge James C. Francis IV from Jean Lin dated 8/5/2011 re: Counsel for the Defendant writes to request that they be permitted to file a brief of up to 35 pages. ENDORSEMENT: Application granted. (Signed by Judge Barbara S. Jones on 8/5/2011) (ab) (Entered: 08/05/2011)
65 MOTION to Strike Documents Referenced by Defendant−Intervenor in Opposition to Plaintiff's Motion for Summary Judgment. Document filed by Edith Schlain Windsor.(Kaplan, Roberta) (Entered: 08/10/2011)
66 MEMORANDUM OF LAW in Support re: 65 MOTION to Strike Documents Referenced by Defendant−Intervenor in Opposition to Plaintiff's Motion for Summary Judgment.. Document filed by Edith Schlain Windsor. (Kaplan, Roberta) (Entered: 08/10/2011)
67 AFFIDAVIT of Roberta A. Kaplan in Support re: 65 MOTION to Strike Documents Referenced by Defendant−Intervenor in Opposition to Plaintiff's Motion for Summary Judgment.. Document filed by Edith Schlain Windsor. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Kaplan, Roberta) (Entered: 08/10/2011)
68 ORDER: BLAG is directed to file its opposition to Plaintiff's motion to strike on or before August 19, 2011. Plaintiff's reply, if any, is due no later than August 23, 2011. Pending resolution of the motion to strike, Plaintiff's deadline for filing a reply brief in support of her motion for summary judgment is adjourned. The Court will decide the motion to strike promptly and will issue a date for submission of Plaintiff's reply in accordance with that decision. Plaintiff may file an opposition to BLAG's motion to dismiss of up to 35 pages; the deadline for submission of this opposition remains August 19, 2011. Plaintiff's request to file a reply in support of her motion for summary judgment of up to 25 pages will be decided along with the Court's resolution of the motion to strike. Set Deadlines/Hearing as to 65 MOTION to Strike Documents Referenced by Defendant−Intervenor in Opposition to Plaintiff's Motion for Summary Judgment:( Responses due by 8/19/2011, Replies due by 8/23/2011.) (Signed by Judge Barbara S. Jones on 8/15/2011) (mro) Modified on 8/16/2011 (mro). (Entered: 08/15/2011)
69 RESPONSE in Opposition re: 65 MOTION to Strike Documents Referenced by Defendant−Intervenor in Opposition to Plaintiff's Motion for Summary Judgment.. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Kircher, Kerry) (Entered: 08/19/2011)
70 MEMORANDUM OF LAW in Opposition re: 52 MOTION to Dismiss.. Document filed by Edith Schlain Windsor. (Kaplan, Roberta) (Entered: 08/19/2011)
71 RESPONSE to Motion re: 28 MOTION for Summary Judgment.. Document filed by The United States Of America. (Lin, Jean) (Entered: 08/19/2011)
72 RESPONSE to Motion re: 52 MOTION to Dismiss. (Same Filing As ECF No. 71). Document filed by The United States Of America. (Lin, Jean) (Entered:

Case: 1:10-cv-8435 As of: 02/09/2015 12:54 AM EST 10 of 18

08/22/2011 08/22/2011 08/29/2011
08/29/2011 09/02/2011 09/02/2011 09/06/2011 09/06/2011
09/09/2011 09/15/2011 09/15/2011 09/15/2011

08/19/2011)
73 REPLY MEMORANDUM OF LAW in Support re: 65 MOTION to Strike Documents Referenced by Defendant−Intervenor in Opposition to Plaintiff's Motion for Summary Judgment.. Document filed by Edith Schlain Windsor. (Kaplan, Roberta) (Entered: 08/22/2011)
74 DECLARATION of Lisa M. Diamond in Support re: 65 MOTION to Strike Documents Referenced by Defendant−Intervenor in Opposition to Plaintiff's Motion for Summary Judgment.. Document filed by Edith Schlain Windsor. (Kaplan, Roberta) (Entered: 08/22/2011)
75 ORDER denying 65 Motion to Strike. Before the Court is Plaintiff's Motion to Strike filed August 10, 2011. After review of the submissions of both parties, Plaintiff's Motion is DENIED. However, the Court finds that the submission of additional evidence by Plaintiff regarding the topics discussed in the motion to strike would be helpful in deciding the pending motion for summary judgment. Therefore, Plaintiff's alternative request to submit "additional affidavits and rebuttal evidence" is GRANTED. Plaintiff's request to file a reply brief of up to 30 pages is GRANTED. Plaintiff's reply is due on or before September 16, 2011. (Signed by Judge Barbara S. Jones on 8/29/2011) (js) (Entered: 08/30/2011)
Set/Reset Deadlines: Replies due by 9/16/2011. (js) (Entered: 08/30/2011)
76 MOTION for Clarification., MOTION for Leave to File Excess Pages., MOTION for Leave to File Sur−Reply. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives.(Kircher, Kerry) (Entered: 09/02/2011)
77 MEMORANDUM OF LAW in Support re: 76 MOTION for Clarification. MOTION for Leave to File Excess Pages. MOTION for Leave to File Sur−Reply.. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Kircher, Kerry) (Entered: 09/02/2011)
78 MEMORANDUM OF LAW in Opposition re: 76 MOTION for Clarification. MOTION for Leave to File Excess Pages. MOTION for Leave to File Sur−Reply.. Document filed by Edith Schlain Windsor. (Kaplan, Roberta) (Entered: 09/06/2011)
79 ORDER terminating 76 Motion ; granting 76 Motion for Leave to File Excess Pages; denying 76 Motion for Leave to File Document. The Court considers Defendant's filing of a motion to address this issue unnecessary; in the future, a simple letter by mail or fax requesting clarification would suffice. Defendant's motion in the alternative to extend the deadline is DENIED. The deadline for Defendant's reply remains 9/9/2011. Defendant's request for an extension of the page limit for its reply in support of their motion to dismiss is GRANTED. Defendant may file a reply brief of up to seventeen pages. As to Defendant's request for leave to file a surreply, the Court denies the request as premature. As the Plaintiff's reply has not yet been filed, the Court cannot now determine whether any "new or unexpected" arguments or issues will be raised that would necessitate a surreply. Defendant may renew its request after the reply brief is submitted if new issues are raised in Plaintiff's reply. (Signed by Judge Barbara S. Jones on 9/6/2011) (tro) (Entered: 09/07/2011)
80 REPLY MEMORANDUM OF LAW in Support re: 52 MOTION to Dismiss.. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Kircher, Kerry) (Entered: 09/09/2011)
81 REPLY MEMORANDUM OF LAW in Support re: 28 MOTION for Summary Judgment.. Document filed by Edith Schlain Windsor. (Kaplan, Roberta) (Entered: 09/15/2011)
82 DECLARATION of Roberta A. Kaplan in Support re: 28 MOTION for Summary Judgment.. Document filed by Edith Schlain Windsor. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Kaplan, Roberta) (Entered: 09/15/2011)
83 REPLY AFFIDAVIT of Edith Schlain Windsor in Support re: 28 MOTION for Summary Judgment.. Document filed by Edith Schlain Windsor. (Kaplan, Roberta)

Case: 1:10-cv-8435 As of: 02/09/2015 12:54 AM EST 11 of 18

09/15/2011 09/15/2011 09/15/2011 09/20/2011 09/20/2011 09/21/2011 10/18/2011 10/20/2011 10/21/2011 06/06/2012
06/06/2012 06/07/2012
06/08/2012

(Entered: 09/15/2011)
84 REPLY AFFIDAVIT of Anne Peplau, Ph.D. in Support re: 28 MOTION for Summary Judgment.. Document filed by Edith Schlain Windsor. (Kaplan, Roberta) (Entered: 09/15/2011)
85 REPLY AFFIDAVIT of Michael Lamb, Ph.D. in Support re: 28 MOTION for Summary Judgment.. Document filed by Edith Schlain Windsor. (Kaplan, Roberta) (Entered: 09/15/2011)
86 DECLARATION of Lisa M. Diamond in Support re: 28 MOTION for Summary Judgment.. Document filed by Edith Schlain Windsor. (Kaplan, Roberta) (Entered: 09/15/2011)
87 MOTION for Leave to File Sur−Reply. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives.(Kircher, Kerry) (Entered: 09/20/2011)
88 MEMORANDUM OF LAW in Support re: 87 MOTION for Leave to File Sur−Reply.. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Kircher, Kerry) (Entered: 09/20/2011)
89 ORDER: Any response to Defendant's motion for leave to file a sur−reply in opposition to Plaintiff's motion for summary judgment may be submitted by letter brief. (Signed by Judge Barbara S. Jones on 9/21/2011) (jfe) (Entered: 09/21/2011)
90 ORDER denying 87 Motion for Leave to File Document. After review of both parties' submissions, Intervenor−Defendant's Motion is DENIED. (Signed by Judge Barbara S. Jones on 10/18/2011) (ft) (Entered: 10/18/2011)
91 NOTICE of Recent Decisions re: 50 Memorandum of Law in Opposition to Motion, 53 Memorandum of Law in Support of Motion. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Kircher, Kerry) (Entered: 10/20/2011)
92 RESPONSE re: 91 Notice (Other), Notice (Other). Document filed by Edith Schlain Windsor. (Kaplan, Roberta) (Entered: 10/21/2011)
93 ORDER granting 28 Motion for Summary Judgment; denying 49 Motion to Dismiss; denying 52 Motion to Dismiss. CONCLUSION: For the foregoing reasons, Plaintiff's motion for summary judgment is GRANTED and Defendant−Intervenor's motion to dismiss is DENIED. The Court delcares that section 3 of the Defense of Marriage Act, 1 U.S.C. Section 7, is unconstitutional as applied to Plaintiff. Plaintiff is awarded judgment in the amount of $363,053.00, plus interest and costs allowed by law. Each party shall bear their own costs and fees. This case is CLOSED. The clerk of the court is directed to terminate the motions at docket numbers 28, 49, and 52. (Signed by Judge Barbara S. Jones on 6/6/2012) (bw) Modified on 6/7/2012 (ml). (Entered: 06/06/2012)
Transmission to Judgments and Orders Clerk. Transmitted re: 93 Order on Motion for Summary Judgment, Order on Motion to Dismiss, to the Judgments and Orders Clerk. (bw) (Entered: 06/06/2012)
94 CLERK'S JUDGMENT # 12,0973 That for the reasons stated in the Court's Order dated June 6, 2012, Plaintiff's motion for summary judgment is granted and Defendant−Intervenor's motion to dismiss is denied; the Court declares that section 3 of the Defense of Marriage Act, 1 U.S.C. § 7, is unconstitutional as applied to Plaintiff; Plaintiff is awarded judgment in the amount of $363,053.00, plus interest and costs allowed by law; each party shall bear their own costs and fees; accordingly, the case is closed. (Signed by Clerk of Court Ruby Krajick on 6/7/12) (Attachments: # 1 NOTICE OF RIGHT TO APPEAL)(ml) (Entered: 06/07/2012)
95 NOTICE OF APPEAL from 93 Order on Motion for Summary Judgment, Order on Motion to Dismiss,,,,,,, 94 Clerk's Judgment,,. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives. Form C and Form D are due within 14 days to the Court of Appeals, Second Circuit. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Kircher, Kerry) (Entered: 06/08/2012)

Case: 1:10-cv-8435 As of: 02/09/2015 12:54 AM EST 12 of 18

06/08/2012 06/11/2012 06/11/2012

Appeal Remark as to 95 Notice of Appeal, filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives. NO FEE. USA. (tp) (Entered: 06/11/2012)
Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 95 Notice of Appeal. (tp) (Entered: 06/11/2012)
Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Appeal Electronic Files for 8 Scheduling Order,, 75 Order on Motion to Strike, 7 Notice of Appearance filed by Edith Schlain Windsor, 68 Order, Set Motion and RRDeadlines/Hearings, 48 Notice of Appearance filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 23 Reply to Response to Motion, filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 12 MOTION to Intervene a party defendant in this matter for the limited purpose of litigating the constitutionality of Section III of the Defense of Marriage Act, Pub. L. No. 104−199, 110 Stat. 2419 (Sept. 21, 1996), codified at 1 U.S.C. § 7. MOTION to Intervene a party defendant in this matter for the limited purpose of litigating the constitutionality of Section III of the Defense of Marriage Act, Pub. L. No. 104−199, 110 Stat. 2419 (Sept. 21, 1996), codified at 1 U.S.C. § 7. filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 88 Memorandum of Law in Support of Motion filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 50 Memorandum of Law in Opposition to Motion filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 19 Notice of Appearance filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 59 Declaration in Opposition to Motion, filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 27 Endorsed Letter, 92 Response filed by Edith Schlain Windsor, 18 Notice of Appearance filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 10 Notice (Other) filed by The United States Of America, 43 Order, 82 Declaration in Support of Motion filed by Edith Schlain Windsor, 29 Memorandum of Law in Support of Motion filed by Edith Schlain Windsor, 17 Notice of Appearance filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 77 Memorandum of Law in Support of Motion filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 57 Declaration in Opposition to Motion, filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 41 Memorandum of Law in Support of Motion filed by New York State, 39 Memorandum of Law in Support of Motion, filed by New York State, 73 Reply Memorandum of Law in Support of Motion filed by Edith Schlain Windsor, 14 MOTION for Paul D. Clement, Richard A. Cirillo and the law firm of King &Spalding LLP to Withdraw as Attorney. filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 26 Order on Motion to Intervene, 81 Reply Memorandum of Law in Support of Motion filed by Edith Schlain Windsor, 63 Order on Motion for Leave to File Document, 42 Endorsed Letter, 76 MOTION for Clarification. MOTION for Leave to File Excess Pages. MOTION for Leave to File Sur−Reply. filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 72 Response to Motion filed by The United States Of America, 93 Order on Motion for Summary Judgment, Order on Motion to Dismiss, 11 Order, Set Deadlines/Hearings, 67 Affidavit in Support of Motion, filed by Edith Schlain Windsor, 83 Reply Affidavit in Support of Motion filed by Edith Schlain Windsor, 6 Order, Set Deadlines/Hearings, 71 Response to Motion filed by The United States Of America, 87 MOTION for Leave to File Sur−Reply. filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 64 Endorsed Letter, 70 Memorandum of Law in Opposition to Motion filed by Edith Schlain Windsor, 55 Declaration in Opposition to Motion, filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 58 Declaration in Opposition to Motion, filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 52 MOTION to Dismiss. filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 49 MOTION to Dismiss Amended Complaint. filed by The United States Of America, 94 Clerk's Judgment, 13 Memorandum of Law in Support of Motion, filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 25 Protective Order, 20 Response to Motion, filed by The United States Of America, 95 Notice of Appeal, filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 28 MOTION for Summary Judgment. filed by Edith Schlain Windsor, 56 Declaration in Opposition to Motion, filed by Bipartisan Legal Advisory Group of the U.S.

Case: 1:10-cv-8435 As of: 02/09/2015 12:54 AM EST 13 of 18

06/14/2012 06/14/2012 06/14/2012 06/14/2012

House of Representatives, 61 Declaration in Opposition to Motion, filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 1 Complaint filed by Edith Schlain Windsor, 9 Amended Complaint filed by Edith Schlain Windsor, 38 MOTION for Leave to File Brief Amicus Curiae of New York State in Support of Plaintiff. filed by New York State, 21 Notice (Other), Notice (Other), Notice (Other) filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 37 Rule 56.1 Statement filed by Edith Schlain Windsor, 2 Summons Returned Executed as to USA, filed by Edith Schlain Windsor, 65 MOTION to Strike Documents Referenced by Defendant−Intervenor in Opposition to Plaintiff's Motion for Summary Judgment. filed by Edith Schlain Windsor, 84 Reply Affidavit in Support of Motion filed by Edith Schlain Windsor, 91 Notice (Other), Notice (Other) filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 22 Scheduling Order, 62 Declaration in Opposition to Motion, filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 89 Order, 16 Stipulation and Order, Terminate Motions, Add and Terminate Parties, 51 Rule 56.1 Statement filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 32 Affidavit in Support of Motion filed by Edith Schlain Windsor, 79 Order on Motion for Miscellaneous Relief, Order on Motion for Leave to File Excess Pages, Order on Motion for Leave to File Document, 3 Order Referring Case to Magistrate Judge, 54 Declaration in Opposition to Motion filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 5 Notice of Change of Address filed by Edith Schlain Windsor, 24 Notice of Change of Address filed by Edith Schlain Windsor, 40 CONSENT MOTION for Leave to File amicus curiae brief in support of the Plaintiff. filed by New York State, 53 Memorandum of Law in Support of Motion filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 66 Memorandum of Law in Support of Motion filed by Edith Schlain Windsor, 78 Memorandum of Law in Opposition to Motion filed by Edith Schlain Windsor, 86 Declaration in Support of Motion filed by Edith Schlain Windsor, 35 Affidavit in Support of Motion filed by Edith Schlain Windsor, 80 Reply Memorandum of Law in Support of Motion filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 30 Affidavit in Support of Motion, filed by Edith Schlain Windsor, 15 Declaration in Support of Motion, filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 4 Notice of Appearance filed by The United States Of America, 31 Affidavit in Support of Motion, filed by Edith Schlain Windsor, 34 Affidavit in Support of Motion filed by Edith Schlain Windsor, 69 Response in Opposition to Motion, filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 33 Affidavit in Support of Motion filed by Edith Schlain Windsor, 60 Declaration in Opposition to Motion, filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 90 Order on Motion for Leave to File Document, 36 Affidavit in Support of Motion filed by Edith Schlain Windsor, 74 Declaration in Support of Motion filed by Edith Schlain Windsor, 85 Reply Affidavit in Support of Motion filed by Edith Schlain Windsor were transmitted to the U.S. Court of Appeals. (tp) (Entered: 06/11/2012)
96 FILING ERROR − NO ORDER SELECTED FOR APPEAL − NOTICE OF APPEAL. Document filed by The United States Of America. Form C and Form D are due within 14 days to the Court of Appeals, Second Circuit. (Lin, Jean) Modified on 6/14/2012 (tp). (Entered: 06/14/2012)
***NOTE TO ATTORNEY REGARDING DEFICIENT APPEAL. Note to Attorney Lin, Jean to RE−FILE Document No. 96 Notice of Appeal. The filing is deficient for the following reason: No Order being appealed was selected. Re−file the document as a Corrected Notice of Appeal event and SELECT the correct Order being appealed. (tp) (Entered: 06/14/2012)
97 CORRECTED NOTICE OF APPEAL re: 96 Notice of Appeal, 93 Order on Motion for Summary Judgment, Order on Motion to Dismiss,,,,,,, 94 Clerk's Judgment,,. Document filed by The United States Of America. (Attachments: # 1 Exhibit Judgment, # 2 Exhibit Order)(Lin, Jean) (Entered: 06/14/2012)
Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 96 Notice of Appeal, 97 Corrected Notice of Appeal,. (nd) (Entered: 06/14/2012)

Case: 1:10-cv-8435 As of: 02/09/2015 12:54 AM EST 14 of 18

06/14/2012

Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Appeal Electronic Files for 96 Notice of Appeal, filed by The United States Of America, 97 Corrected Notice of Appeal, filed by The United States Of America, 8 Scheduling Order,, 75 Order on Motion to Strike, 7 Notice of Appearance filed by Edith Schlain Windsor, 68 Order, Set Motion and RRDeadlines/Hearings, 48 Notice of Appearance filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 23 Reply to Response to Motion, filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 12 MOTION to Intervene a party defendant in this matter for the limited purpose of litigating the constitutionality of Section III of the Defense of Marriage Act, Pub. L. No. 104−199, 110 Stat. 2419 (Sept. 21, 1996), codified at 1 U.S.C. 7. MOTION to Intervene a party defendant in this matter for the limited purpose of litigating the constitutionality of Section III of the Defense of Marriage Act, Pub. L. No. 104−199, 110 Stat. 2419 (Sept. 21, 1996), codified at 1 U.S.C. 7. filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 88 Memorandum of Law in Support of Motion filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 50 Memorandum of Law in Opposition to Motion filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 19 Notice of Appearance filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 59 Declaration in Opposition to Motion, filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 27 Endorsed Letter, 92 Response filed by Edith Schlain Windsor, 18 Notice of Appearance filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 10 Notice (Other) filed by The United States Of America, 43 Order, 82 Declaration in Support of Motion filed by Edith Schlain Windsor, 29 Memorandum of Law in Support of Motion filed by Edith Schlain Windsor, 17 Notice of Appearance filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 77 Memorandum of Law in Support of Motion filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 57 Declaration in Opposition to Motion, filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 41 Memorandum of Law in Support of Motion filed by New York State, 39 Memorandum of Law in Support of Motion, filed by New York State, 73 Reply Memorandum of Law in Support of Motion filed by Edith Schlain Windsor, 14 MOTION for Paul D. Clement, Richard A. Cirillo and the law firm of King &Spalding LLP to Withdraw as Attorney. filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 26 Order on Motion to Intervene, 81 Reply Memorandum of Law in Support of Motion filed by Edith Schlain Windsor, 63 Order on Motion for Leave to File Document, 42 Endorsed Letter, 76 MOTION for Clarification. MOTION for Leave to File Excess Pages. MOTION for Leave to File Sur−Reply. filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 72 Response to Motion filed by The United States Of America, 93 Order on Motion for Summary Judgment, Order on Motion to Dismiss, 11 Order, Set Deadlines/Hearings, 67 Affidavit in Support of Motion, filed by Edith Schlain Windsor, 83 Reply Affidavit in Support of Motion filed by Edith Schlain Windsor, 6 Order, Set Deadlines/Hearings, 71 Response to Motion filed by The United States Of America, 87 MOTION for Leave to File Sur−Reply. filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 64 Endorsed Letter, 70 Memorandum of Law in Opposition to Motion filed by Edith Schlain Windsor, 55 Declaration in Opposition to Motion, filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 58 Declaration in Opposition to Motion, filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 52 MOTION to Dismiss. filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 49 MOTION to Dismiss Amended Complaint. filed by The United States Of America, 94 Clerk's Judgment, 13 Memorandum of Law in Support of Motion, filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 25 Protective Order, 20 Response to Motion, filed by The United States Of America, 95 Notice of Appeal, filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 28 MOTION for Summary Judgment. filed by Edith Schlain Windsor, 56 Declaration in Opposition to Motion, filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 61 Declaration in Opposition to Motion, filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 1 Complaint filed by Edith Schlain Windsor, 9 Amended Complaint filed by Edith Schlain Windsor, 38 MOTION for Leave to File Brief Amicus Curiae of New York State in Support of Plaintiff. filed by New York State, 21 Notice (Other), Notice

Case: 1:10-cv-8435 As of: 02/09/2015 12:54 AM EST 15 of 18

08/07/2012 08/07/2012 08/07/2012

(Other), Notice (Other) filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 37 Rule 56.1 Statement filed by Edith Schlain Windsor, 2 Summons Returned Executed as to USA, filed by Edith Schlain Windsor, 65 MOTION to Strike Documents Referenced by Defendant−Intervenor in Opposition to Plaintiff's Motion for Summary Judgment. filed by Edith Schlain Windsor, 84 Reply Affidavit in Support of Motion filed by Edith Schlain Windsor, 91 Notice (Other), Notice (Other) filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 22 Scheduling Order, 62 Declaration in Opposition to Motion, filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 89 Order, 16 Stipulation and Order, Terminate Motions, Add and Terminate Parties, 51 Rule 56.1 Statement filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 32 Affidavit in Support of Motion filed by Edith Schlain Windsor, 79 Order on Motion for Miscellaneous Relief, Order on Motion for Leave to File Excess Pages, Order on Motion for Leave to File Document, 3 Order Referring Case to Magistrate Judge, 54 Declaration in Opposition to Motion filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 5 Notice of Change of Address filed by Edith Schlain Windsor, 24 Notice of Change of Address filed by Edith Schlain Windsor, 40 CONSENT MOTION for Leave to File amicus curiae brief in support of the Plaintiff. filed by New York State, 53 Memorandum of Law in Support of Motion filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 66 Memorandum of Law in Support of Motion filed by Edith Schlain Windsor, 78 Memorandum of Law in Opposition to Motion filed by Edith Schlain Windsor, 86 Declaration in Support of Motion filed by Edith Schlain Windsor, 35 Affidavit in Support of Motion filed by Edith Schlain Windsor, 80 Reply Memorandum of Law in Support of Motion filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 30 Affidavit in Support of Motion, filed by Edith Schlain Windsor, 15 Declaration in Support of Motion, filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 4 Notice of Appearance filed by The United States Of America, 31 Affidavit in Support of Motion, filed by Edith Schlain Windsor, 34 Affidavit in Support of Motion filed by Edith Schlain Windsor, 69 Response in Opposition to Motion, filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 33 Affidavit in Support of Motion filed by Edith Schlain Windsor, 60 Declaration in Opposition to Motion, filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 90 Order on Motion for Leave to File Document, 36 Affidavit in Support of Motion filed by Edith Schlain Windsor, 74 Declaration in Support of Motion filed by Edith Schlain Windsor, 85 Reply Affidavit in Support of Motion filed by Edith Schlain Windsor were transmitted to the U.S. Court of Appeals. (nd) (Entered: 06/14/2012)
98 Letter addressed to Judge Barbara S. Jones from Roberta A. Kaplan dated 5/31/2012 re: We write on behalf of plaintiff Edie Windsor to bring to the Court's attention the decision issued earlier today by the Unites States Court of Appeals for the First Circuit holding that Section 3 of the Defense of Marriage Act ("DOMA") is unconstitutional in a case that presents substantially similar facts and raises overlapping legal issues as the above−captioned matter Document filed by Edith Schlain Windsor.(ama) (Entered: 08/07/2012)
99 Letter addressed to Judge Barbara S. Jones from Roberta A. Kaplan dated 5/29/2012 re: We write on behalf of plaintiff Edie Windsor to bring to the Court's attention a decision issued last week by Judge Claudia Wilken of the Northern District of California holding that Section 3 of the Defense of Marriage Act ("DOMA") is unconstitutional in a case that presents substantially similar facts and raises similar legal issues as the above−captioned matter currently pending before Your Honor. Document filed by Edith Schlain Windsor.(ama) (Entered: 08/07/2012)
100 Letter addressed to Judge Barbara S. Jones from Roberta A. Kaplan dated 5/29/2012 re: We write to follow up on our March 28 letter, in which we enclosed the Motion to Consolidate and Expedite Appeals filed by the United States Department of Justice in the United States Court of Appeals for the Ninth Circuit in the Golinski case (the "DOJ Br."). For many of the same reasons stated in the DOJ's motion to expedite in Golinski, Ms. Windsor respectfully requests that this Court issue a decision on her pending motion for summary judgment (and defendant−intervenor's motion to dismiss) as promptly as possible. Document filed

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by Edith Schlain Windsor.(ama) (Entered: 08/07/2012)
101 Letter addressed to Judge Barbara S. Jones from Roberta A. Kaplan dated 5/28/2012 re: On behalf of plaintiff, we write to let Your Honor know that Edie Windsor is back at home and is recovering from her most recent heart attack. Document filed by Edith Schlain Windsor.(ama) (Entered: 08/07/2012)
102 Letter addressed to Judge Barbara S. Jones from Roberta A. Kaplan dated 3/07/2012 re: We respectfully write to inform the Court that plaintiff Edie Windsor suffered a heart attack yesterday and was admitted to the cardiac unit at Mount Sinai Hospital. Document filed by Edith Schlain Windsor.(ama) (Entered: 08/07/2012)
103 Letter addressed to Judge Barbara S. Jones from H. Christopher Bartolomucci dated 3/06/2012 re: This responds to Plaintiffs letter to the Court dated February 21, 2012, regarding the Attorney General's recent decision not to defend 38 U.S.C. § 101(3) and 101(31). The constitutionality of those two statutory provisions is not at issue in this case. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives.(ama) (Entered: 08/07/2012)
105 Letter addressed to Judge Barbara S. Jones, from Roberta A. Kaplan, dated 2/21/2012, re: bringing to the Court's attention a recent decision by the Attorney General and the Department of Justice to cease defending 38 U.S.C. Secs. 101(3) and (31), which affect the eligibility of same−sex couples for military and veterans' benefits. Document filed by Edith Schlain Windsor.(ja) (Entered: 08/08/2012)
106 Letter addressed to Judge Barbara S. Jones, from H. Christopher Bartolomucci, dated 2/16/2012, re: Perry v. Brown, 9th Cir. No. 10−16696 (Feb. 7, 2012). Contrary to the suggestion made in Plaintiff's letter dated February 8, 2012, Perrydoes not support Plaintiff's challenge to Section 3 of the Defense of Marriage Act ("DOMA"). The most striking thing about the Ninth Circuit's opinion is the very narrowness of its reasoning in striking down California's Proposition 8. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives.(ja) (Entered: 08/08/2012)
107 Letter addressed to Judge Barbara S. Jones, from Roberta A. Kaplan, dated 2/8/2012, re: ruling issued by the United States Court of Appeals for the Ninth Circuit in Perry v. Brown, No. 10−16696 (9th Cir. Feb. 7, 2012). The Court in Perry held that California's Proposition 8, which prohibits marriage between same−sex couples, is unconstitutional. Document filed by Edith Schlain Windsor.(ja) (Entered: 08/08/2012)
108 Letter addressed to Judge Barbara S. Jones, from Roberta A. Kaplan, dated 7/6/2012, re: bringing the Court's attention to a decision a recent decision handed down by Judge Wilken of the Northern District of California concerning the constitutionality of the Defense of Marriage Act ("DOMA"). Document filed by Edith Schlain Windsor.(ja) (Entered: 08/08/2012)
109 Letter addressed to Judge Barbara S. Jones, from Roberta A. Kaplan, dated 1/23/2012, re: two recent developments since the submission of the materials in connection with plaintiff's motion for summary judgment. Document filed by Edith Schlain Windsor.(ja) (Entered: 08/08/2012)
110 Letter addressed to Judge Barbara S. Jones, from Roberta A. Kaplan, dated 12/8/2011, re: pending in this case, plaintiff's motion for summary judgment and the Bapartisan Legal Advisory Group's motion to dismiss − informing Your Honor of some recent developments concerning Edith Windsor's health. Document filed by Edith Schlain Windsor.(ja) (Entered: 08/08/2012)
111 Letter addressed to Judge Barbara S. Jones, from H. Christopher Bartolomucci, dated 9/23/2011, re: the House's motion for leave to file a sur−reply in opposition to Plaintiff's motion for summary judgment. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives.(ja) (Entered: 08/08/2012)
112 Letter addressed to Judge Barbara S. Jones, from Roberta A. Kaplan, dated 9/21/2011, re: In light of the above, Plaintiff requests that BLAG's renewed motion for leave to file sur−reply should be denied. In the alternative, requests that the

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Court issue an order providing that BLAG's sur−reply should be strictly limited to teh specifi issue or issues that warrant the filing of a sur−reply. Document filed by Edith Schlain Windsor.(ja) (Entered: 08/08/2012)
113 Letter addressed to Judge Barbara S. Jones, from Roberta A. Kaplan, dated 9/19/2011, re: on 9/15/2011 we filed our reply brief in support of Plaintiff's motion for summary judgment. Enclosed please find two copies of each of the following motion papers and briefs filed in connection with that motion. Document filed by Edith Schlain Windsor.(ja) (Entered: 08/08/2012)
114 Letter addressed to Judge Barbara S. Jones, from Jean Lin, dated 4/18/2011, re: this tax refund case challenging the constitutionality of Section 3 of the Defense of Marriage Act ("DOMA"), 1 U.S.C. Sec. 7. The Bipartisan Legal Advisory'Group ("BLAG") of the United States House of Representatives has filed a motion to intervene pursuant to 28 U.S.C. § 530D(b) (2). Accordingly, the United States requests that this Court not rule on the motion until it has had an opportunity to review the United States' response. Document filed by The United States Of America.(ja) (Entered: 08/08/2012)
115 Letter addressed to Judge Barbara S. Jones, from Roberta A. Kaplan, dated 9/23/2012 re: For the reasons set forth in our September 21 letter, a sur−reply is not warranted. As a result, Plaintiff submits that the Court should disregard the portions (at pp. 3−6) of BLAG's September 23 letter. Document filed by Edith Schlain Windsor.(ja) (Entered: 08/08/2012)
116 Letter addressed to Judge Barbara S. Jones, from H. Christopher Bartolomucci, dated 8/12/2011, re: request that plaintiff be required to file, on or before August 19, (1) a reply in support of her motion for summary judgment of no more than 10 pages containing her complete response to the contentions in our opposition, and (2) an opposition to our motion to dismiss of no more than 35 papers. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives.(ja) (Entered: 08/08/2012)
117 Letter addressed to Judge Barbara S. Jones, from H. Christopher Bartolomucci, dated 8/11/2011, re: in response to plaintiff's letter of today's date. The House does not oppose plaintiff's request to file a 35 page brief in opposition to the House's (45−page) motion to dismiss. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives.(ja) (Entered: 08/08/2012)
118 Letter addressed to Judge Barbara S. Jones and Magistrate Judge James C. Francis, from Roberta A. Kaplan, dated 8/12/2011, re: defendant−intervenor raises for the first time in his letter in sur−reply the issue of constitutional facts. Document filed by Edith Schlain Windsor.(ja) (Entered: 08/08/2012)
119 Letter addressed to Judge Barbara S. Jones, from Roberta A. Kaplan, dated 8/12/2011, re: response to the letter that the Bipartisan Legal Advisory Group of the House of Representatives ("BLAG") sent to the Court last night concerning how best to deal with plaintiff's pending motion for summary judgment. Document filed by Edith Schlain Windsor.(ja) (Entered: 08/08/2012)
120 Letter addressed to Judge Barbara S. Jones, from Roberta A. Kaplan, dated 8/11/2011, re: challenging the constitutionality of Section 3 of the Defense of Marriage Act, or "DOMA." Finally, because the Court's rules require that memoranda of law should be no longer than 25 pages, and given the length of the briefs submitted by BLAG on August 1 (totalling approximately 70 pages), we would respectfully request permission to file a reply brief of up to 30 pages in connection with our motion for summary judgment and an opposition brief of up to 35 pages with respect to BLAG's motion to dismiss; although again, we will make every effort to file briefs under those limits. Document filed by Edith Schlain Windsor.(ja) (Entered: 08/08/2012)
121 Letter addressed to Judge Barbara S. Jones, from Roberta A. Kaplan, dated 8/17/2011, re: the Court's Order dated August 15, 2011. In connection with Your Honor's consideration of Plaintiff's motion to strike, filed on August 10, 2011, enclosed we believe to be true and correct copies of the 12 documents referenced by Defendant−Intervenor, the Bipartisan Legal Advisory Group of the House of Representatives ("BLAG"), in opposition to Plaintiff's motion for summary

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judgment that are also the subject of Plaintiff's motion to strike. Document filed by Edith Schlain Windsor.(ja) (Entered: 08/08/2012)
122 Letter addressed to Judge Barbara S. Jones, from Roberta A. Kaplan, dated 4/19/2011, re: request that the Court rule on the motion to intervene no later than May 9, when Judge Francis has ordered there to be a status/scheduling conference among the parties. Document filed by Edith Schlain Windsor.(ja) (Entered: 08/08/2012)
123 Letter addressed to Judge Barbara S. Jones, from Roberta A. Kaplan, dated 2/2/2011, re: enclose for the Court's convenience a copy of the amended complaint that we filed today. Document filed by Edith Schlain Windsor.(ja) (Entered: 08/08/2012)
124 Letter addressed to Judge Barbara S. Jones, from Roberta A. Kaplan, dated 11/22/2010, re: Edie filed her complaint on November 9, 2010 and her case has been assigned to Your Honor. Informing the Court about several matters relevant to scheduling in this case and to request a conference with the Court as soon as possible. Document filed by Edith Schlain Windsor.(ja) (Entered: 08/08/2012)
125 Letter addressed to Judge Barbara S Jones from Roberta A Kaplan dated 2/23/2012 re: Northern District of California decision holding Section 3 of the Defense of Marriage Act unconstitutional. Document filed by Edith Schlain Windsor.(cd) Modified on 9/17/2012 (jar). (Entered: 08/09/2012)
***DELETED DOCUMENT as per instructions from Judge Barbara S. Jones' Chambers on 8/15/2012. Deleted document number 104 Letter addressed to Judge Barbara S. Jones, from Roberta A. Kaplan, dated 2/23/2012. The document was incorrectly filed in this case. See entry 125 . (tro) (Entered: 08/15/2012)
126 Letter addressed to Judge Barbara S Jones from H. Christopher Bartolomucci dated 3/15/2012 re: In response to plaintiff's letter dated 2/23/2012 and an appeal has been filed in Golinski. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives.(cd) (Entered: 08/09/2012)
USCA Case Number 12−2335 from the USCA 2nd Circuit assigned to 95 Notice of Appeal, filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (tp) (Entered: 02/13/2013)
USCA Case Number 12−2435 from the USCA 2nd Circuit assigned to 96 Notice of Appeal, 97 Corrected Notice of Appeal filed by The United States Of America. (tp) (Entered: 02/13/2013)
Appeal Remark as to 95 Notice of Appeal, filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 96 Notice of Appeal, filed by The United States Of America, 97 Corrected Notice of Appeal, filed by The United States Of America, USCA Case Number 12−2335 and 12−2435; SCUS Case No. 12−307: The Case has been Appealed to the Supreme Court of the United States. Non− ECF documents 44 through 47 have been scanned and forwarded to the Supreme Court. The Supreme Court has been notified that the balance of the case is electronic. (tp) (Entered: 02/13/2013)
127 NOTICE of Satisfaction of Judgment re: 94 Clerk's Judgment,,. Document filed by The United States Of America. (Lin, Jean) (Entered: 08/26/2013)
128 MANDATE of USCA (Certified Copy) as to 95 Notice of Appeal, filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives, 97 Corrected Notice of Appeal, filed by The United States Of America USCA Case Number 12−2335 (L); 12−2435 (con). Ordered, Adjudged and Decreed that the judgment of the District Court is AFFIRMED in accordance with the opinion of this court. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Issued As Mandate: 5/30/2014. (Attachments: # 1 Opinion, # 2 Dissenting opinion)(nd) (Entered: 06/02/2014)

 
 No. _________
IN THE
Supreme Court of the United States

EDITH SCHLAIN WINDSOR, in her capacity as Executor of the estate of THEA CLARA SPYER,
Petitioner, v.
THE UNITED STATES OF AMERICA Respondent,
and
THE BIPARTISAN LEGAL ADVISORY GROUP OF THE UNITED STATES HOUSE OF REPRESENTATIVES. Respondent.

On Petition For Writ Of Certiorari Before Judgment To The United States Court Of Appeals For The Second Circuit
PETITION FOR WRIT OF CERTIORARI BEFORE JUDGMENT

ROBERTA A. KAPLAN Counsel of Record
ANDREW J. EHRLICH JAREN JANGHORBANI PAUL, WEISS, RIFKIND,
WHARTON & GARRISON LLP 1285 Avenue of the Americas New York, NY 10019-6064 (212) 373-3000 rkaplan@paulweiss.com
STEVEN R. SHAPIRO JAMES D. ESSEKS ROSE A. SAXE AMERICAN CIVIL LIBERTIES UNION
FOUNDATION 125 Broad Street New York, NY 10004

PAMELA S. KARLAN JEFFREY L. FISHER STANFORD LAW SCHOOL
SUPREME COURT LITIGATION CLINIC 559 Nathan Abbott Way Stanford, CA 94305
ARTHUR EISENBERG MELISSA GOODMAN MARIKO HIROSE NEW YORK CIVIL LIBERTIES
UNION FOUNDATION 125 Broad Street New York, NY 10004

QUESTION PRESENTED Does Section 3 of the Defense of Marriage Act, 1 U.S.C. § 7, which defines the term “marriage” for all purposes under federal law as “only a legal union between one man and one woman as husband and wife,” deprive same-sex couples who are lawfully married under the laws of their states (such as New York) of the equal protection of the laws, as guaranteed by the Fifth Amendment to the Constitution of the United States?
i

PARTIES TO THE PROCEEDING The petitioner is Edith Schlain Windsor, in her capacity as the executor of the estate of her late spouse, Thea Clara Spyer. Ms. Windsor was the plaintiff in the District Court and is the appellee in the Court of Appeals. The United States of America was the defendant in the District Court and is an appellant in the Court of Appeals. The Bipartisan Legal Advisory Group of the United States House of Representatives (“BLAG”) was the intervenor-defendant in the District Court and is the intervenor-appellant in the Court of Appeals.
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TABLE OF CONTENTS

Page

Opinion Below .............................................................1
Jurisdiction ..................................................................1
Relevant Constitutional and Statutory Provisions ............................................................1
Statement of the Case .................................................2
Reasons for Granting the Writ .................................12
I. This Case Presents A Constitutional Question of Exceptional Importance................12
II. The Lower Federal Courts are in Significant Disarray Over the Constitutionality of DOMA. .............................15
III. This Case Presents an Excellent Vehicle for Resolving the Constitutionality of DOMA................................................................ 18
IV. Certiorari Before Judgment in the Court of Appeals Is Appropriate in This Case. ..........20
Conclusion .................................................................22
Appendix A – Opinion of the District Court (June 6, 2012) ................................a1
Appendix B – Judgment of the District Court (June 6, 2012) ..............................a23
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Appendix C –Intervenor-Defendant’s Notice of Appeal (June 8, 2012)..............a25
Appendix D – Defendant’s Notice of Appeal (June 14, 2012) ............................a29
Appendix E – Defendant’s Notice to the District Court (Feb. 25, 2012) ............................................a29
Appendix F – Intervenor-Defendant’s Response to Plaintiff’s First Requests for Admission (Aug. 1, 2011) ..............................a45
Appendix G – Constitution and statutory provisions involved......................a47
TABLE OF AUTHORITIES
CASES
Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982)........................... 16
Baker v. Nelson, 409 U.S. 810 (1972) ........................................... 10
Balas, In re, 449 B.R. 567 (Bankr. C.D. Cal. 2011) ........ 14, 18
Blesch v. Holder, No. 1:12-cv-01578-CBA (E.D.N.Y. filed Apr. 2, 2012) .............................................................. 18
Bowers v. Hardwick, 478 U.S. 186 (1986) ........................................... 16 iv

Dragovich v. United States Dep’t of Treasury, No. 10-01564 CW, 2012 WL 1909603 (N.D. Cal. May 24, 2012) ...................................... 14, 18
Estate of Ranftle, In re, 81 A.D.3d 566 (1st Dep’t 2011) ........................... 5
Gill v. Office of Pers. Mgmt., 699 F. Supp. 2d 374 (D. Mass. 2010).......... 14, 15
Golinski, In re 587 F.3d 956 (9th Cir. 2009)............................... 3
Gonzales v. Raich, 545 U.S. 1 (2005) ............................................... 13
Gratz v. Bollinger, 539 U.S. 244 (2003) ........................................... 21
Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010) ....................................... 12
J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994) ........................................... 22
Kandu, In re, 315 B.R. 123 (Bankr. W.D. Wash. 2004) .... 16, 17
Lewis v. New York State Dep’t of Civ. Serv., 60 A.D.3d 216 (3rd Dep’t 2009) .......................... 5
Lui v. Holder, No. 2:11-cv-01267 (C.D. Cal. Sept. 28, 2011), ECF No. 38 ............................................. 16
Martinez v. County of Monroe, 50 A.D.3d 189 (4th Dep’t 2008) .......................... 5
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Massachusetts v. United States Dep’t of Health & Human Servs., 682 F.3d 1 (1st Cir. 2012) ....................... 3, 14, 16
McLaughlin v. Panetta, No. 1:11-cv-11905-RGS (D. Mass. filed Oct. 27, 2011) ............................................................ 18
Mistretta v. United States, 488 U.S. 361 (1989) ........................................... 15
Nat’l Fed’n of Indep. Bus. v. Sebelius, No. 11-393 (June 28, 2012) ............................... 13
Nguyen v. I.N.S., 533 U.S. 53 (2001) ............................................. 22
Pedersen v. Office of Pers. Mgmt., No. 3:2010-cv-01750 (D. Conn.) .......................... 7
Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012)........................... 17
Porter v. Dicken, 328 U.S. 252 (1946) ........................................... 21
Revelis v. Napolitano, No. 1:11-cv-01991 (N.D. Ill. filed Mar. 23, 2011) .................................................................. 18
Rostker v. Goldberg, 453 U.S. 57 (1981) ............................................. 13
Strauss v. Horton, 207 P.3d 48 (Cal. 2009) ..................................... 17
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Taylor v. McElroy, 360 U.S. 709 (1959) ........................................... 21
United States v. Booker, 543 U.S. 220 (2005) ..................................... 13, 21
United States v. Lopez, 514 U.S. 549 (1995) ........................................... 13
United States v. Morrison, 529 U.S. 598 (2000) ........................................... 13
United States v. Nixon, 418 U.S. 683 (1974) ........................................... 20
United States v. Stevens, 130 S. Ct. 1577 (2010) ....................................... 12
United States v. Williams, 553 U.S. 285 (2008) ........................................... 13
Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005) ...... 16, 17
CONSTITUTIONAL PROVISIONS
U.S. Const Amend. V................................ 2, 7, 19, 20
U.S. Const Amend. XIV.......................................... 17
STATUTES
26 U.S.C. § 2056(a) ................................................... 6
28 U.S.C. § 1254(1) ................................................... 1
28 U.S.C. § 2101(e) ................................................... 1
vii

28 U.S.C. § 2414 ..................................................... 21
Civil Marriage Protection Act, 2012 Md. Laws Ch. 2 .................................................................... 2
N.Y. Sess. Laws. Ch. 95 ......................................... 15
N.Y. Tax Law § 952(a).............................................. 6
N.Y. Tax Law § 961 ................................................ 21
N.Y. Tax Law § 961(3).............................................. 6
Section 3 of the Defense of Marriage Act, 1 U.S.C. § 7....................................................passim
OTHER AUTHORITIES
Eugene Gressman et al., Supreme Court Practice (9th ed. 2007) ...................................... 21
Eva Rosenberg, Ruling poses tax issues for same-sex couples, MarketWatch (July 10, 2012), http://articles.marketwatch.com/ 2012-07-10/finance/32613467_1. ...................... 19
Joe Davidson, OPM defies orders on same-sex benefits, Wash. Post, Dec. 22, 2009.................... 3
John Wagner, Same-sex marriage headed to ballot in Md., Wash. Post, June 7, 2012............. 2
Laura L. Myers, Gay marriage in Washington state blocked by proposed referendum, Reuters (June 6, 2012) ........................................ 2
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U.S. Census Bureau, Census Bureau Releases Estimates of Same-Sex Married Couples (Sept. 27, 2011), http://www.census.gov/ newsroom/releases/ archives/2010_census/ cb11-cn181.html ................................................ 14
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PETITION FOR WRIT OF CERTIORARI BEFORE JUDGMENT
Edith (“Edie”) Windsor, in her capacity as the executor of the estate of her late spouse, Thea Clara Spyer, respectfully petitions for a writ of certiorari before judgment to review a decision by the United States District Court for the Southern District of New York. The decision of the District Court is presently pending on appeal in the United States Court of Appeals for the Second Circuit.
OPINION BELOW
The opinion of the District Court for the Southern District of New York granting petitioner’s motion for summary judgment and denying BLAG’s motion to dismiss (Pet. App. a1-a21) is published at 833 F. Supp. 2d 394.
JURISDICTION
The judgment of the District Court was entered on June 6, 2012. Pet. App. a23-a24. Notices of appeal were filed on June 8, 2012 and June 14, 2012. Pet. App. a25-a30. The case is docketed in the Court of Appeals for the Second Circuit as Nos. 122335 and 12-2435. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1254(1), 2101(e).
RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS
Section 3 of the Defense of Marriage Act, 1 U.S.C. § 7, provides as follows:
In 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”
1

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.
The Due Process Clause of the Fifth Amendment provides, in pertinent part, that:
No person shall . . . be deprived of life, liberty, or property, without due process of law.
Other relevant statutory provisions are set forth in the Appendix to this petition. Pet. App., a47a48.
STATEMENT OF THE CASE
The Defense of Marriage Act (“DOMA”) provides that the words “marriage” and “spouse,” when used in federal law and programs, are limited to legal unions between a man and a woman. Since its enactment in 1996, six states (New York, Massachusetts, Connecticut, Iowa, Vermont, and New Hampshire), as well as the District of Columbia, have authorized marriages between same-sex couples.1 Federal courts in three circuits have held
1 Maryland and Washington have authorized marriage for same-sex couples, but those laws have not yet gone into effect. See Civil Marriage Protection Act, 2012 Md. Laws Ch. 2 (H.B. 438); John Wagner, Same-sex marriage headed to ballot in Md., Wash. Post, June 7, 2012, at B06; 2012 Wash. Legis. Serv. Referendum 74 (West); Laura L. Myers, Gay marriage in Washington state blocked by proposed referendum, Reuters (June 6, 2012), http://www.reuters.com/article/2012/06/06/ususa-gaymarriage-washington-idUSBRE8551JE20120606.
2

that Section 3 of DOMA is unconstitutional under the equal protection component of the Fifth Amendment’s due process clause. But they do not agree as to the rationale for the unconstitutionality of Section 3 of DOMA.
In Massachusetts v. United States Department of Health & Human Services, originally filed on July 8, 2009, and decided along with Gill v. Office of Personnel Management, the First Circuit held that DOMA was unconstitutional under a “more careful” or “rigor[ous]” form of rational basis review. 682 F.3d 1, 11 (1st Cir. 2012). On June 29, 2012, BLAG — the official legal advisory group for the House of Representatives, see, e.g., Rule I.11, Rules of the House of Representatives, 103 Cong. (1993) — filed a petition for certiorari in that case. Nos. 12-13, 12-15. The Government then filed its own petition on July 3, 2012. Id.
In Golinski v. United States Office of Personnel Management, which began as an administrative proceeding by an employee of the federal court system in October 2008, the United States District Court for the Northern District of California held that strict scrutiny should be applied to DOMA because it discriminates on the basis of sexual orientation.2 824 F. Supp. 2d 968, 989-90
2 The administrative complaint in Golinski was presented to Chief Judge Kozinski of the Ninth Circuit in his administrative capacity. Invoking the principle of constitutional avoidance, Chief Judge Kozinski interpreted the Federal Employee Health Benefits Act to permit the Office of Personnel Management (“OPM”) to provide Golinski and her same-sex spouse the same benefits available to opposite-sex couples. In re Golinski, 587 F.3d 956, 958 (9th Cir. 2009). The DOJ advised OPM to deny Golinski’s spouse benefits. See Joe Davidson, OPM defies orders on same-sex benefits, Wash. Post, Dec. 22, 2009, at A17.
3

(N.D. Cal. 2012). Under that standard, it held that DOMA was unconstitutional. Id. at 995. It also concluded that DOMA failed rational basis review. Id. at 1002. Golinski is currently on expedited appeal before the Ninth Circuit, Nos. 12-15409 and -0257, with oral argument scheduled to take place on September 10, 2012. On July 3, 2012, the Government filed a petition for a writ of certiorari before judgment in Golinski. No. 12-16.
In this case, petitioner filed suit in the United States District Court for the Southern District of New York. Applying only rational basis review, that court held that Section 3 of DOMA does not “pass constitutional muster.” Pet. App. a13. Its decision is currently on expedited appeal to the Second Circuit, No. 12-2335, with oral argument currently scheduled to take place during the week of September 24, 2012.
1. The petitioner in this case is Edie Windsor, who recently celebrated her eighty-third birthday, and is the sole executor of the estate of her late spouse, Thea (“Thea”) Clara Spyer. Edie and Thea first met in New York City in 1963. Despite the fact that there was virtually no foreseeable prospect for legal recognition of civil unions (not to mention marriage) between same-sex couples anywhere at the time, Edie and Thea became engaged to each other in
When OPM did not comply with Chief Judge Kozinski’s order, and after the District Court ruled it lacked jurisdiction to hear a mandamus action, Golinski filed an amended complaint, challenging the denial of benefits on both statutory and constitutional grounds. Golinski v. United States Office of Personnel Management, 824 F. Supp. 2d 968, 975 (N.D. Cal. 2012). The district court found Chief Judge Kozinski’s statutory analysis “unpersuasive.” Id. at 981 n.3. As a result, it went on to address the constitutional question that Chief Judge Kozinski had found unnecessary to address.
4

1967. They then spent the next forty-two years of their lives together, in both sickness and health.
In 1977, Thea was diagnosed with multiple sclerosis and she eventually became a paraplegic, confined to a wheelchair and requiring 24-hour care by Edie and a team of nurses. When Thea’s doctors told them that Thea did not have much longer to live, Edie and Thea traveled to Toronto, Canada, and were legally married on May 22, 2007, a marriage that was recognized as valid under New York law.3 Two years later, in 2009, Thea died. After Thea’s
3 Every New York state appellate court to have considered the question has agreed that Canadian marriages between same-sex couples were valid under New York law since they were not “contrary” to the “prohibition” of either “natural law” or a New York statute. In re Estate of Ranftle, 81 A.D.3d 566, 566-67 (1st Dep’t 2011) (recognizing 2008 Canadian marriage of a same-sex couple in connection with estate of deceased spouse); see also Lewis v. New York State Dep’t of Civ. Serv., 60 A.D.3d 216, 222-23 (3rd Dep’t 2009) (upholding NYS insurance program’s recognition of out-of-state marriages of same-sex couples), aff’d on other grounds, Godfrey v. Spano, 13 N.Y.3d 358 (2009); Martinez v. County of Monroe, 50 A.D.3d 189, 193 (4th Dep’t 2008) (recognizing 2004 Canadian marriage of a same-sex couple in case involving health care benefits). As the State of New York observed with respect to the validity of petitioner’s 2007 Canadian marriage to Thea Spyer: “New York has long recognized as valid same-sex marriages that were solemnized under the laws of other States or nations . . . finding [such recognition] to have deep roots in New York’s general principle of marriage recognition.” Brief for the State of New York as Amicus Curiae in Support of the Plaintiff at 9, Windsor v. United States, 833 F. Supp. 2d 394 (S.D.N.Y. 2012) (No. 10cv-8435).
5

death, Edie suffered a heart attack and was hospitalized with stress cardiomyopathy — an ailment known as “broken heart syndrome” — which caused irreversible damage to her heart.
Thea left her entire estate for the benefit of Edie, her surviving spouse. Although New York State recognized Edie and Thea’s marriage, the federal government did not. Solely because of DOMA, the Government imposed more than $363,000 in federal estate tax on Thea’s estate, significantly reducing Edie’s inheritance and painfully reminding Edie while she was grieving the loss of her spouse that the Government considered them to be legal strangers. It is undisputed in the record that if Ms. Windsor had been married to a man, the marital exemption provided by federal law would have applied, see 26 U.S.C. § 2056(a), and her federal estate tax bill would have been $0.4
2. On November 9, 2010, petitioner filed suit in the United States District Court for the Southern District of New York seeking a declaration that Section 3 of DOMA violates the equal protection
4 New York State’s estate tax was determined by reference to an estate’s federal estate tax liability. See N.Y. Tax Law § 952(a). In the absence of DOMA, Thea’s estate would not have been liable for any federal estate tax and thus no New York State estate tax would have been levied either. See N.Y. Tax Law § 961(3) (providing that a final federal determination “shall also determine the same issue for purposes of” New York State estate tax). But because of DOMA, Thea’s estate was subject to a New York State estate tax of $275,528.22. Letter from N.Y. State Dep’t of Taxation & Finance to Edith S. Windsor (June 2, 2010) (on file with petitioner).
6

guarantee secured by the Fifth Amendment to the United States Constitution and a refund of the federal estate tax levied on and paid by Thea’s estate.
At the time petitioner filed suit, the Government took the position that DOMA must be defended and enforced.5 As a result of petitioner’s case and another case filed near the same time still pending in the district court, Pedersen v. Office of Personnel Management, No. 3:2010-cv-01750 (D. Conn.), the Government changed course.
On February 23, 2011, just prior to the time that a responsive pleading was due to be filed in Ms. Windsor’s case, the President and the Attorney General of the United States announced that they would no longer defend DOMA in a letter from the Attorney General to the Speaker of the House. Pet. App. a35-a44.
In his letter, the Attorney General noted that prior suits challenging DOMA had arisen “in jurisdictions where circuit courts have already held that classifications based on sexual orientation are subject to rational basis review.” Pet. App. a36. By contrast, petitioner’s suit was filed in the Second Circuit, which had not then (and has not yet) resolved the level of scrutiny that applies to laws that discriminate based on sexual orientation. For that reason, the Attorney General explained, petitioner’s case “requires the Department [of Justice] to take an affirmative position on the level of
5 Indeed, in the two other petitions for certiorari currently pending before this Court, the Government initially defended the unequal treatment of same-sex couples under DOMA.
7

scrutiny that should be applied to DOMA Section 3 in a circuit without binding precedent on the issue.” Id. The Attorney General announced that the President and Attorney General had determined that heightened judicial scrutiny is the appropriate standard of review for government classifications based on sexual orientation and that, under that standard, Section 3 of DOMA is unconstitutional. Accordingly, the executive branch ceased to defend DOMA in petitioner’s case. Id.
On April 18, 2011, in response to the Attorney General’s announcement, BLAG filed a motion to intervene for the purpose of defending the constitutionality of Section 3 of DOMA. Ms. Windsor did not oppose BLAG’s motion, which was subsequently granted. In light of concerns about Ms. Windsor’s age and health, an expedited discovery and briefing schedule was established and crossmotions to dismiss and for summary judgment were submitted to the District Court on September 9 and September 15, 2011, respectively.
3. On June 6, 2012, the District Court denied BLAG’s motion to dismiss and granted Ms. Windsor’s motion for summary judgment. Pet. App. a1. It held that Section 3 of DOMA “is unconstitutional as applied” and awarded judgment to Ms. Windsor in the amount of $363,053, plus interest. Pet. App. a21.
In holding that DOMA violates the constitutional guarantee of equal protection, the court concluded that it was unnecessary to decide whether some form of heightened scrutiny should apply to classifications based on a person’s sexual orientation because “DOMA’s section 3 does not pass constitutional muster,” even under the lowest form of rational basis review. Pet. App. a13. While
8

acknowledging that the United States Court of Appeals for the First Circuit in Gill had recently applied a “more searching form” of rational basis review, the court concluded that DOMA was unconstitutional applying “established principles” of equal protection, which it explained as follows: “[A]t a minimum, this Court must ‘insist on knowing the relation between the classification adopted and the object to be attained’ . . . . [and] the government’s asserted interests must be legitimate.” Id. (citing Romer v. Evans, 517 U.S. 620, 632 (1996)). The court then considered, and rejected under the rational basis standard, each of the justifications offered by BLAG as well as those by Congress when it passed DOMA in 1996.
First, the District Court rejected the assertion that DOMA advanced the interests of “caution” and “nurturing the traditional institution of marriage” because “the decision of whether same-sex couples can marry is left to the states.” Pet. App. a15. As a result, “whatever the ‘social consequences’ of [samesex marriage] ultimately may be, DOMA has not, and cannot, forestall them.” Id. at a16.
Second, the District Court found it “impossible to credit [DOMA’s] justification” of promoting childrearing and procreation within heterosexual marriages because “DOMA has no direct impact on heterosexual couples at all” and thus has no significant “ability to deter those couples from having children outside of marriage, or to incentivize couples that are pregnant to get married.” Id. at a16-a17.
Third, the District Court described the claim that DOMA was necessary to ensure uniformity in the distribution of federal benefits as “misleading”
9

because the only uniformity that the federal government had ever previously sought was a uniform respect for state marriage laws, whatever they might say and however they might differ.6 Id. at a19. In addition, the District Court noted that Congress had never attempted to impose uniformity on states in the area of domestic relations before DOMA and that to do so impinged upon “matters at the ‘core’ of the domestic relations law exclusively within the province of the states.” Id. at a20.
Fourth, having concluded that there were no other legitimate governmental interests behind DOMA, the District Court rejected the argument that DOMA can be justified as a means of conserving government resources. While excluding any “arbitrarily chosen group of individuals from a government program” would have the effect of conserving the public fisc, the District Court concluded that such a congressional interest in economy, with no other rational basis to support it, does not suffice to explain the line drawn in DOMA. Id. at a20-a21.
Finally, the District Court also rejected BLAG’s argument that this Court’s prior dismissal for lack of a substantial federal question in Baker v. Nelson, 409 U.S. 810 (1972), foreclosed petitioner’s claim. It observed that Baker presented a challenge to Minnesota’s marriage law and thus did not
6 It is clear in the record that there are numerous differences in state marriage laws beyond the recognition vel non of marriages of same-sex couples. See Expert Affidavit of Nancy F. Cott, Ph.D. at ¶¶ 24-64, Windsor v. United States, 833 F. Supp. 2d 394 (S.D.N.Y. 2012) (No. 10-cv-8435).
10

“necessarily decide[ ] the question of whether DOMA violates the Fifth Amendment’s Equal Protection Clause.” Pet. App. a8. Applying established law on the precedential effect of summary affirmances, the District Court therefore held that Ms. Windsor’s claim was not foreclosed. Id.7
4. On June 8, 2012, BLAG filed a timely notice of appeal to the United States Court of Appeals for the Second Circuit. The appeal was docketed on June 11, 2012, as No. 12-2335. In addition, the United States filed a notice of appeal on June 14, 2012, which was docketed on June 19, 2012, as No. 12-2435.
On June 13, 2012, Ms. Windsor filed a motion to expedite the appeal due to her age, health, and desire to see the constitutional claim of her spouse’s estate resolved during her lifetime. As a result,
7 The District Court also rejected BLAG’s argument that Ms. Windsor lacked standing to bring this lawsuit because of her Canadian marriage: “[S]ince [New York] State, through its executive agencies and appellate courts, uniformly recognized Windsor’s same-sex marriage in the year that she paid the federal estate taxes, the Court finds that she has standing.” Pet. App. a7. The Government agreed, stating that although New York law “restricted marriage to opposite-sex couples” in 2007, “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.” Defendant United States’ Memorandum of Law in Response to Plaintiff’s Motion for Summary Judgment and Intervenor’s Motion to Dismiss at 2, Windsor v. United States, 833 F. Supp. 2d 394 (S.D.N.Y. 2012) (No. 10-cv-8435) (citations omitted).
11

briefing in petitioner’s case will be completed by September 14, 2012, with oral arguments currently scheduled for the week of September 24, 2012.
REASONS FOR GRANTING THE WRIT
This case presents a question of exceptional national importance: the constitutionality of a statute, the Defense of Marriage Act (“DOMA”), that daily affects the lives of thousands of Americans. DOMA has been held unconstitutional by federal courts in three circuits. The Government has declined to defend its constitutionality, but continues to enforce the statute pending resolution by this Court. Thus, individuals like petitioner continue to suffer serious consequences from the Government’s failure to recognize their lawfully solemnized marriages.
This case presents an appropriate vehicle for resolving the constitutionality of DOMA. The constitutional question was squarely presented and decided below. In light of the number of decisions and range of analysis presented in recently decided cases, the issue is ready for decision by this Court and no purpose would be served by further delay. Certiorari before judgment is therefore appropriate.
I. This Case Presents A Constitutional Question of Exceptional Importance.
All parties involved in litigating the constitutionality of DOMA agree: the question whether the Government can refuse to recognize marriages that are valid under state law is an issue of exceptional importance.
1. This Court has repeatedly held that decisions holding federal statutes unconstitutional warrant review. See, e.g., Holder v. Humanitarian
12

Law Project, 130 S. Ct. 2705 (2010); United States v. Stevens, 130 S. Ct. 1577 (2010); United States v. Williams, 553 U.S. 285 (2008); Gonzales v. Raich, 545 U.S. 1, 9 (2005); United States v. Booker, 543 U.S. 220, 229 (2005); United States v. Morrison, 529 U.S. 598, 605 (2000). Indeed, judging the constitutionality of an Act of Congress is “the gravest and most delicate duty that this Court is called upon to perform.” Rostker v. Goldberg, 453 U.S. 57, 64 (1981) (quoting Blodgett v. Holden, 275 U.S. 142, 148 (1927) (Holmes, J.)).
2. As this case shows, state marriage laws interact with federal law in myriad ways. See, e.g., supra note 6. DOMA marks the first time that Congress has sought to supplant state law as the source for determining the validity of a marriage. See United States v. Lopez, 514 U.S. 549, 564 (1995) (recognizing that “States historically have been sovereign” on matters of family law, including marriage). While “[l]egislative novelty is not necessarily fatal,” sometimes “‘the most telling indication of [a] severe constitutional problem . . . is the lack of historical precedent’ for Congress’s action.” Nat’l Fed’n of Indep. Bus. v. Sebelius, No. 11-393 (June 28, 2012) (Roberts, C.J. at slip op. 18) (quoting Free Enterprise Fund v. Public Co. Accounting Oversight Bd., 130 S. Ct. 3138, 3159 (2010) (internal quotation marks omitted)).8
8 The federalism considerations would be different if there were a claim that a state’s decision to recognize marriages of samesex couples violated some independent constitutional norm, such as equal protection. No such claim has been made in this or any of the other DOMA cases, nor could it be.
13

3. It is undisputed that this case presents

issues of fundamental national importance, the

resolution of which will have wide-ranging effects

extending far beyond the parties to this case.

Section 3 of DOMA defines the terms “marriage” and

“spouse” for purposes of interpreting all federal

statutes and regulations. 1 U.S.C. § 7. DOMA thus

“affects a thousand or more generic cross-references

to marriage in myriad federal laws,” most of which

“operate to the disadvantage of same-sex married

couples.” Massachusetts v. United States Dep’t of

Health & Human Servs., 682 F.3d 1, 6 (1st Cir.

2012). And it has been estimated that there are well

over 100,000 same-sex couples married under state

law in the United States today. U.S. Census Bureau,

Census Bureau Releases Estimates of Same-Sex

Married

Couples

(Sept.

27,

2011),

http://www.census.gov/newsroom/releases/archives/2

010_census/cb11-cn181.html.

Because the terms “marriage” and “spouse” are used in a large number and wide variety of federal laws, many thousands of married same-sex couples are treated differently from married heterosexual couples in a plethora of ways. For example, in addition to affecting the application of the federal estate tax to Ms. Spyer’s estate, DOMA affects whether spouses can jointly file their taxes, Gill v. Office of Pers. Mgmt., 699 F. Supp. 2d 374, 383 (D. Mass. 2010), aff’d sub nom. Massachusetts v. United States Dep’t of Health & Human Servs., 682 F.3d 1 (1st Cir. 2012), or bankruptcy petitions, In re Balas, 449 B.R. 567, 569 (Bankr. C.D. Cal. 2011). DOMA also governs whether spouses are entitled to a wide variety of benefits, including long-term care insurance benefits, Dragovich v. United States Dep’t of Treasury, No. 10-01564 CW, 2012 WL 1909603, at

14

*1 (N.D. Cal. May 24, 2012), access to health care, Golinski, 824 F. Supp. 2d at 974; Gill, 699 F. Supp. 2d at 379-81; and social security benefits, id. at 38283. This non-exhaustive list provides only a small sample of the broad array of the harmful effects of DOMA.
The impact of DOMA is felt most dramatically today in Ms. Windsor’s home state of New York, which enacted civil marriage for same-sex couples on June 24, 2011. 2011 N.Y. Sess. Laws. Ch. 95. New York is by far the largest state in the nation to expressly authorize marriage for same-sex couples under state law. Between July 24, 2011 (when New York’s marriage statute became effective), and June 30, 2012, at least 9,763 same-sex couples have received marriage licenses from New York State. In New York City alone, same-sex couples now represent more than nine percent of the total number of marriages performed. As a result of DOMA, however, the large number of New Yorkers already married in New York or previously married in other jurisdictions (including many thousands like Ms. Windsor) are being subjected to a form of second class citizenship where they are fully married for purposes of state, but not federal, law.
II. The Lower Federal Courts are in Significant Disarray Over the Constitutionality of DOMA.
1. While recent decisions in the federal courts have held DOMA unconstitutional, there remains “disarray” among the lower federal courts as to both the result and reasoning. This disarray warrants review. Mistretta v. United States, 488 U.S. 361, 371 (1989). The First Circuit, the Northern District of California, and the Southern District of New York have held that DOMA is unconstitutional, but three
15

other federal courts have upheld Section 3 under rational basis review. See Lui v. Holder, No. 2:11-cv01267 (C.D. Cal. Sept. 28, 2011), ECF No. 38 (minute order upholding DOMA’s constitutionality based on Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982)); Wilson v. Ake, 354 F. Supp. 2d 1298, 1309 (M.D. Fla. 2005) (upholding DOMA on rational basis review by finding it rationally related to “encouraging the raising of children in homes consisting of a married mother and father”); In re Kandu, 315 B.R. 123, 14648 (Bankr. W.D. Wash. 2004) (finding DOMA constitutional under rational basis review because it plausibly advances legitimate interest in promoting child rearing by two biological parents).
2. Even courts that agree that DOMA is unconstitutional have reached that result through different legal frameworks. The First Circuit, in Massachusetts v. United States Department of Health & Human Services, concluded that the “competing formulas” of traditional rational basis analysis and heightened scrutiny were both “inadequate fully to describe governing precedent.” 682 F.3d at 8. It therefore decided that “a more careful assessment of the justifications than the light scrutiny offered by conventional rational basis review” was warranted. Id. at 11. Accordingly, the First Circuit “require[d] a closer than usual review based in part on discrepant impact among married couples and in part on the importance of state interests in regulating marriage.” Id. at 8.
By contrast, the Northern District of California in Golinski v. United States Office of Personnel Management applied heightened scrutiny. 824 F. Supp. 2d at 989. Explaining that cases relying on the now-overturned Bowers v. Hardwick,
16

478 U.S. 186 (1986), were non-binding and unpersuasive, the court in Golinski wrote that “no federal appellate court has meaningfully examined the appropriate level of scrutiny to apply to gay men and lesbians,” a question that “is still open.” 824 F. Supp. 2d at 985. After examining each of the relevant factors identified by this Court, the District Court in Golinski held that heightened scrutiny was the appropriate standard of review for classifications based on sexual orientation. Id. at 985-90.
Finally, in this case, the court below applied standard rational basis review. Pet. App. a12-a13. It reached a conclusion that conflicts squarely with other courts applying rational basis review. See Wilson, 354 F. Supp. 2d at 1309; In re Kandu, 315 B.R. at 146-48.
The current situation is untenable. It simply cannot be the case that marriages of same-sex couples that are performed in or recognized by California, New York, and states within the First Circuit will be recognized by the Government and receive federal benefits, while the same federal benefits will be denied to same-sex couples married in Iowa and the District of Columbia.9 Moreover, the fact that different federal courts are applying different standards of scrutiny to discrimination on
9 California has recognized the validity of the marriages of 18,000 same-sex couples performed prior to the effective date of Proposition 8, see Strauss v. Horton, 207 P.3d 48, 122 (Cal. 2009); Proposition 8 itself was held to violate the Fourteenth Amendment in Perry v. Brown, 671 F.3d 1052, 1096 (9th Cir. 2012).
17

the basis of sexual orientation will have consequences in other situations well beyond DOMA.
III. This Case Presents An Excellent Vehicle For Resolving the Constitutionality of DOMA.
Given the breadth of DOMA, challenges to the constitutionality of DOMA have arisen in a variety of factual contexts, see, e.g., In re Balas, 449 B.R. at 569 (bankruptcy); Blesch v. Holder, No. 1:12-cv01578-CBA (E.D.N.Y. filed Apr. 2, 2012) (immigration); Dragovich, 2012 WL 1909603 (health benefits); McLaughlin v. Panetta, No. 1:11-cv-11905RGS (D. Mass. filed Oct. 27, 2011) (military benefits), and procedural contexts, see, e.g., Golinski, 824 F. Supp. 2d at 976 (mandamus); Revelis v. Napolitano, No. 1:11-cv-01991 (N.D. Ill. filed Mar. 23, 2011) (immigration removal case).
Ms. Windsor’s case presents an excellent vehicle for resolving the constitutionality of DOMA. That issue was the sole issue before the court below and it was fully briefed and argued on summary judgment. There is no dispute as to the impact of DOMA: BLAG acknowledged that petitioner “has submitted documents that, if accurate, establish the eligibility of Spyer’s estate for the estate tax marital deduction and that the estate would not have been liable for federal estate tax, if Spyer had been married to a surviving male U.S. citizen at the time of her death.” See Pet. App. a46 (emphasis added).10
10 The “documents” to which BLAG referred consisted of the estate tax filing that Ms. Spyer’s estate made to the Internal Revenue Service, which was produced to BLAG in discovery.
18

There are thus no procedural obstacles to resolving the question presented.
Moreover, this case presents one of the most consequential examples of how DOMA operates. Petitioner sought recoupment of a federal estate tax payment of more than $363,000. Payment of the federal estate tax by a surviving spouse is one of the most significant adverse impacts of DOMA since the amount owed, as was true in the case of Ms. Windsor, is typically quite substantial. See Internal Revenue Service, Estate Tax Returns Filed in 2010, by Tax Status and Size of Gross Estate (Oct. 3, 2011), http://www.irs.gov/pub/irs-soi/10es01fy.xls (showing that average federal estate tax paid by estates subject to federal estate tax is nearly $2 million, based on federal estate tax returns filed in 2010). Indeed, since the District Court’s decision below, questions have arisen as to whether other surviving spouses in Ms. Windsor’s situation should simply pay a very high, unconstitutional estate tax or file a protective claim. See Eva Rosenberg, Ruling poses tax issues for same-sex couples, Market Watch (July 10, 2012), http://articles.marketwatch.com/ 2012-07-10/finance/32613467_1.
Both the factual basis and procedural history of Ms. Windsor’s case squarely and cleanly present the sole question at issue: is Section 3 of DOMA constitutional under the Fifth Amendment in discriminating against Ms. Windsor solely because she was married to a woman, instead of a man? Petitioner’s case also illustrates the unfairness that can result from the interaction of DOMA and state law: New York’s longstanding statute determined New York’s state estate tax on the basis of federal treatment of an estate.
19

Because petitioner’s case was decided on the basis of standard rationality review, this Court could affirm the decision below without reaching the question of whether a more stringent standard of review should apply when the Government discriminates on the basis of sexual orientation. While petitioner argued below in the alternative, and continues to believe that heightened scrutiny is appropriate, the decision below demonstrates convincingly that Section 3 of DOMA violates the Fifth Amendment regardless of what standard of review applies. Ms. Windsor’s case is therefore an appropriate vehicle for the Court to evaluate the constitutionality of Section 3 of DOMA.
IV. Certiorari Before Judgment in the Court of Appeals Is Appropriate in This Case.
In light of the full ventilation of the legal arguments regarding the constitutionality of DOMA in the courts below and the huge impact DOMA has on the daily lives of same-sex couples who have legally married, there is no reason for this Court to delay its review.
It is well-established that petitioner, as the prevailing party at the District Court, is entitled to seek certiorari before judgment once the case is “in” the Court of Appeals. See United States v. Nixon, 418 U.S. 683, 692 (1974) (holding that the Supreme Court may grant a petition for a writ of certiorari to review any case that is “properly ‘in’ [a] Court of Appeals,” even if a final judgment has not been entered by that court); see also Eugene Gressman et al., Supreme Court Practice 83-89 (9th ed. 2007). And as is the case here in connection with the pending petitions in Gill and Golinski, this Court has previously granted certiorari before judgment in
20

order to hear cases like the present one that raise issues similar or identical to issues raised in cases concurrently presented for this Court’s review. See, e.g., United States v. Booker, 543 U.S. 220, 229 (2005); Gratz v. Bollinger, 539 U.S. 244, 259-60 (2003); Taylor v. McElroy, 360 U.S. 709, 710 (1959); Porter v. Dicken, 328 U.S. 252, 254 (1946).
Ms. Windsor is 83 years old and suffers from a serious heart condition. Because the District Court’s ruling is entitled to an automatic stay of enforcement, see 28 U.S.C. § 2414, Ms. Windsor cannot receive the benefit of its ruling in her favor as the executor of Ms. Spyer’s estate pending appeal and any subsequent challenges. Ms. Windsor, not Ms. Windsor’s estate, should receive the benefit to which the District Court has already ruled that she is entitled; the constitutional injury that has been inflicted on Ms. Windsor, as the executor of Ms. Spyer’s estate and its sole beneficiary, should be remedied within her lifetime.11
11 As discussed above, supra note 4, Ms. Windsor is suffering a continuing injury due to the operation of DOMA because a New York statute prohibits a redetermination of Ms. Spyer’s estate for purposes of New York estate tax liability unless and until a federal court order allowing the marital estate deduction has become final. N.Y. Tax Law § 961. Moreover, petitioner continues to suffer the dignitary harm of the Government’s continuing refusal to recognize her marriage as equal to other legally valid marriages. See, e.g., J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 142 (1994) (discrimination “denigrates the dignity” of those it targets and is “practically a brand upon them, affixed by the law” (internal quotation marks omitted)); Nguyen v. I.N.S., 533 U.S. 53, 83 (2001) (recognizing “the potential for injury . . . to personal dignity that inheres or
21

CONCLUSION
For the foregoing reasons, the petition for a writ of certiorari before judgment should be granted.
Respectfully submitted,
ROBERTA A. KAPLAN Counsel of Record ANDREW J. EHRLICH JAREN JANGHORBANI PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP 1285 Avenue of the Americas New York, NY 10019-6064 (212) 373-3000 rkaplan@paulweiss.com
PAMELA S. KARLAN JEFFREY L. FISHER STANFORD LAW SCHOOL
SUPREME COURT LITIGATION CLINIC 559 Nathan Abbott Way Stanford, CA 94305
STEVEN R. SHAPIRO JAMES D. ESSEKS ROSE A. SAXE AMERICAN CIVIL LIBERTIES
UNION FOUNDATION 125 Broad Street New York, NY 10004
accompanies” sex-based classifications (internal quotation marks omitted)).
22

ARTHUR EISENBERG MELISSA GOODMAN MARIKO HIROSE NEW YORK CIVIL LIBERTIES
UNION FOUNDATION 125 Broad Street New York, NY 10004 July 16, 2012
23

Appendix A
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
No. 10 Civ. 8435 (BSJ) Edith Schlain WindSor, plaintiff
v. thE UnitEd StatES of amErica,
dEfEndant
Filed: June 6, 2012
ORDER
BARBARA S. JONES UNITED STATES DISTRICT JUDGE
This case arises from Plaintiff’s constitutional challenge to section 3 of the Defense of Marriage Act (“DOMA”), the operation of which required Plaintiff to pay federal estate tax on her same-sex spouse’s estate, a tax from which similarly situated heterosexual couples are exempt. Plaintiff claims that section 3 deprives her of the equal protection of the laws, as guaranteed by the Fifth Amendment to the United States Constitution. For the following reasons, Defendant-Intervenor’s motion to dismiss is DENIED and Plaintiff’s motion for summary judgment is GRANTED.
a1

I. BACKGROUND
A. DOMA
DOMA was enacted and signed into law in 1996. The challenged provision, section 3, defines the terms “marriage” and “spouse” under federal law. It provides:
In 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, the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.
1 U.S.C. § 7.
In large part, DOMA was a reaction to the possibility that states would begin to recognize legally same-sex marriages. Specifically, Congress was spurred to action by a 1993 decision by the Hawaii Supreme Court, which suggested that same-sex couples might be entitled to marry. Baehr v. Lewin 852 P.2d 44 (Haw. 1993). The House Judiciary Committee’s Report on DOMA (“House Report”) discussed Baehr at length, describing it as a “legal assault . . . against traditional heterosexual marriage.” H.R. Rep. No. 104-664, at 3 (1996). The Report noted that, if homosexuals were permitted to marry, “that development could have profound practical implications for federal law,” including making homosexual couples “eligible for a whole range of federal rights and benefits.” Id. at 10. A federal definition of marriage was seen as necessary because, the Committee reasoned, never before had the words “marriage” (which, at the time, appeared in 800 sections of federal statutes and regulations) or “spouse” (appearing more than 3,100 times) meant anything other than a union between a man and a woman—an implicit assumption upon which Congress had relied in enacting
a2

these statutes and regulations. Id. at 10.
In addition to this notion of “mak[ing] explicit what has always been implicit,” id. at 10, the House Report justified DOMA as advancing government interests in: “(1) defending and nurturing the institution of traditional, heterosexual marriage; (2) defending traditional notions of morality; (3) protecting state sovereignty and democratic self-governance;1 and (4) preserving scarce government resources.” Id. at 12.
B. The Parties
In 1963, Plaintiff in this action, Edie Windsor, met her late-spouse, Thea Spyer, in New York City. Shortly thereafter, Windsor and Spyer entered into a committed relationship and lived together in New York. In 1993, Windsor and Spyer registered as domestic partners in New York City, as soon as that option became available. In 2007, as Spyer’s health began to deteriorate due to her multiple sclerosis and heart condition, Windsor and Spyer decided to get married in another jurisdiction that permitted gays and lesbians to marry. They were married in Canada that year.
Spyer died in February 2009. According to her last will and testament, Spyer’s estate passed for Windsor’s benefit. Because of the operation of DOMA, Windsor did not qualify for the unlimited marital deduction, 26 U.S.C. § 2056(a), and was required to pay $363,053 in federal estate tax on Spyer’s estate, which Windsor paid in her capacity as executor of the estate.
____________________
1 This interest was not addressed to section 3, therefore the Court does not consider it. See Massachusetts v. U.S. Dep’t of Health & Human Servs., et al., Nos. 10-2207 & 10-2214, slip op. at 25 (1st Cir. May 31, 2012).
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On November 9, 2010, Windsor commenced this suit, seeking a refund of the federal estate tax levied on Spyer’s estate and a declaration that section 3 of DOMA violates the Equal Protection Clause of the Fifth Amendment.
In February 2011, Attorney General Holder announced that the Department of Justice would no longer defend DOMA’s constitutionality because the Attorney General and the President believed that a heightened standard of scrutiny should apply to classifications based on sexual orientation, and that section 3 is unconstitutional under that standard. Letter from Eric H. Holder, Jr., Attorney Gen., to John A. Boehner, Speaker, U.S. House of Rep., at 5 (Feb. 23, 2011). Given the Executive Branch’s decision not to enforce DOMA, the Bipartisan Legal Advisory Group of the U.S. House of Representatives (“BLAG”) moved to intervene to defend the constitutionality of the statute. BLAG’s motion was granted on June 2, 2011.
On June 24, 2011, Windsor moved for summary judgment, arguing that DOMA is subject to strict constitutional scrutiny because homosexuals are a suspect class. She contends that DOMA fails under that standard of constitutional review because the government cannot establish that DOMA is narrowly tailored to serve a compelling or legitimate government interest. In the alternative, she argues that DOMA has no rational basis.
On August 1, 2011, BLAG moved to dismiss Plaintiff’s complaint. It argues that the weight of the precedent compels the Court to review DOMA only for a rational basis and, under that standard, there are ample reasons that justify the legislation. Because the motion to dismiss turns on the same legal question as the motion for summary judgment, the Court will address the two motions simultaneously.
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II. DISCUSSION
A. Legal Standard
Rule 56 of the Federal Rules of Civil Procedure provides that a court shall grant a motion for summary judgment “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Bessemer Trust Co., N.A. v. Branin, 618 F.3d 76, 86 (2d Cir. 2010) (quoting Fed. R. Civ. P. 56(c)). “The party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists and that the undisputed facts establish her right to judgment as a matter of law.” Rodriguez v. City of New York, 72 F.3d 1051, 1060-61 (2d Cir. 1995).
To survive a motion to dismiss pursuant to Rule 12(b)(6), “the operative standard requires the plaintiff [to] provide the grounds upon which [her] claim rests through factual allegations sufficient to raise a right to relief above the speculative level.” Goldstein v. Pataki, 516 F.3d 50, 56 (2d Cir. 2008) (citation and internal quotation marks omitted). That is, a plaintiff must assert “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).
B. Windsor’s Standing to Pursue this Suit
As a threshold matter, the Court addresses whether Windsor has standing to pursue this action. “[T]he irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an ‘injury in fact’—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not ‘conjectural’ or ‘hypothetical.’” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (citations
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and internal quotation marks omitted). Second, the plaintiff must present a “causal connection between the injury and the conduct complained of—the injury has to be fairly . . . traceable to the challenged action of the defendant, and not . . . the result of the independent action of some third party not before the court.” Id. (internal quotation marks and alterations omitted). Finally, “it must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.’” Id. at 561.
There is no question that Windsor meets the first and third requirements. BLAG seeks to undermine the second factor by arguing that Windsor has not proved that her marriage was recognized under New York law in 2009, the relevant tax year. In support of this argument, it points to a 2006 case where the New York Court of Appeals held that the “New York Constitution does not compel recognition of marriages between members of the same sex.” Hernandez v. Robles, 855 N.E.2d 1, 5 (N.Y. 2006).
While the Court acknowledges the Court of Appeals’ decision in Hernandez, in light of subsequent state executive action and case law, the Court ultimately finds BLAG’s argument unpersuasive. In 2009, all three statewide elected executive officials—the Governor, the Attorney General, and the Comptroller—had endorsed the recognition of Windsor’s marriage. See Godfrey v. Spano, 13 N.Y.3d 358, 368 n.3 (N.Y. 2009) (describing 2004 informal opinion letters of the Attorney General and the State Comptroller which respectively concluded that “New York law presumptively requires that parties to such [same-sex] unions must be treated as spouses for purposes of New York law” and “[t]he Retirement System will recognize a same-sex Canadian marriage in the same manner as an opposite-sex New York marriage, under the
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principle of comity”) ; Dickerson v. Thompson, 73 A.D.3d 52, 54-55 (N.Y. App. Div. 2010) (citing a 2008 directive by the Governor to recognize same-sex marriages from other jurisdictions).
In addition, every New York State appellate court to have addressed the issue in the years following Hernandez has upheld the recognition of same-sex marriages from other jurisdictions. See In re Estate of Ranftle, 917 N.Y.S.2d 195 (N.Y. App. Div. 2011) (holding that a Canadian same-sex marriage is valid in New York); Lewis v. N.Y. State Dep’t of Civil Serv., 60 A.D.3d 216 (N.Y. App. Div. 2009), aff’d on other grounds sub nom. Godfrey, 13 N.Y.3d 358 (affirming the lower court’s holding that New York’s marriage recognition rule requires the recognition of out-of-state same-sex marriages); Martinez v. Cnty. of Monroe, 850 N.Y.S.2d 740 (N.Y. App. Div. 2008) (holding that plaintiff’s same-sex Canadian marriage is entitled to recognition in New York).
Finally, although the Court of Appeals has yet to readdress the question of same-sex marriage recognition directly, its 2009 opinion in Godfrey v. Spano said nothing to cast doubt on the uniform lower-court authority recognizing the validity of same-sex marriages. 13 N.Y.3d at 377.
For all of these reasons, since the State, through its executive agencies and appellate courts, uniformly recognized Windsor’s same-sex marriage in the year that she paid the federal estate taxes, the Court finds that she has standing.
C. The Effect of Baker v. Nelson
The Court next considers BLAG’s argument that the Supreme Court’s holding in Baker v. Nelson, 409 U.S. 810 (1972), requires it to dismiss Windsor’s case. There, the Supreme Court summarily affirmed a challenge to a
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Minnesota state law that denied a marriage license to a same-sex couple. The plaintiffs challenged the law in state court on equal protection grounds, arguing that “the right to marry without regard to the sex of the parties is a fundamental right,” and that “restricting marriage to only couples of the opposite sex is irrational and invidiously discriminatory.” Baker v. Nelson, 191 N.W.2d 185, 186 (Minn. 1971). The Supreme Court dismissed the challenge for “want of a substantial federal question.” Baker, 409 U.S. 810. BLAG now argues that Baker is dispositive of the issue before this Court and, as binding precedent, compels the Court to find that “defining marriage as between one man and one woman comports with equal protection.” (BLAG Mot. to Dismiss at 12.)
Summary judgments from the Supreme Court are binding on the lower courts only with regard to the precise legal questions and facts presented in the jurisdictional statement. Ill. State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 182 (1979). The case before the Court does not present the same issue as that presented in Baker. DOMA defines marriage for federal purposes, with the effect of allocating federal rights and benefits. It does not preclude or otherwise inhibit a state from authorizing same-sex marriage (or issuing marriage licenses), as did the Minnesota statute in Baker. Indeed, BLAG agrees that DOMA does not preclude or inhibit same-sex marriage and Windsor does not argue that DOMA affects the fundamental right to marry.
Accordingly, after comparing the issues in Baker and those in the instant case, the Court does not believe that Baker “necessarily decided” the question of whether DOMA violates the Fifth Amendment’s Equal Protection Clause. Accord, e.g., Smelt v. Cnty. of Orange, 374 F. Supp. 2d 861, 872-73 (C.D. Cal. 2005), aff’d in part, rev’d in part on other grounds, 447 F.3d 673 (2006) (declining
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to find that Baker controlled in an equal protection challenge to DOMA); see also In re Kandu, 315 B.R. 123, 137 (Bankr. W.D. Wash. 2004) (same). The Court will not rest its decision on such a “slender reed” of support. Morse v. Republican Party of Va., 517 U.S. 186, 203 n.21 (1996).
Having decided that Baker does not require a decision in BLAG’s favor as a matter of law, the Court turns to the parties’ equal protection arguments.
D. Equal Protection
Equal protection requires the government to treat all similarly situated persons alike. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). It prohibits the government from drawing “distinctions between individuals based solely on differences that are irrelevant to a legitimate governmental objective.” Lehr v. Robertson, 463 U.S. 248, 265 (1983).
Of course, not all legislative classifications violate equal protection. See Nordlinger v. Hahn, 505 U.S. 1, 10 (1992). The “promise [of] equal protection of the laws must coexist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons.” Romer v. Evans, 517 U.S. 620, 631 (1996). With that reality in view, “[t]he general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest.” City of Cleburne, 473 U.S. at 440. That general rule, embodied in the “rational basis” test, applies in the mine-run of cases involving “commercial, tax and like regulation.” Massachusetts v. U.S. Dep’t of Health & Human Servs., et al., Nos. 10-2207 & 10-2214, slip op. at 13 (1st Cir. May 31, 2012).
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Rational basis review is the “paradigm of judicial restraint.” FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 314 (1993). The burden of proving a statute unconstitutional falls on the party attacking the legislation. Heller v. Doe, 509 U.S. 312, 321 (1993); Baker v. Carr, 369 U.S. 186, 266 (1962) (Stewart, J., concurring). “A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.” McGowan v. Maryland, 366 U.S. 420, 426 (1961). Accordingly, courts must accept as constitutional those legislative classifications that bear a rational relationship to a legitimate government interest.
Courts review with greater scrutiny classifications that disadvantage a suspect class or impinge upon the exercise of a fundamental right. Plyler v. Doe, 457 U.S. 202, 216-17 (1982). Pursuant to a court’s “strict scrutiny,” a classification violates equal protection unless it is “precisely tailored to serve a compelling governmental interest.” Id. at 217; see Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995). Classifications that disadvantage a quasi-suspect class are also subject to a heightened standard of constitutional review. Courts review those classifications with an intermediate level of scrutiny. Under “heightened” or “intermediate scrutiny,” the classification must be “substantially related to a legitimate state interest” to survive constitutional attack. Mills v. Habluetzel, 456 U.S. 91, 99 (1982).
There are few classifications that trigger strict or heightened scrutiny. See, e.g., Clark v. Jeter, 486 U.S. 456, 461 (1988) (illegitimacy subject to intermediate scrutiny); Miss. Univ. for Women v. Hogan, 458 U.S. 718, 723-24 (1982) (gender subject to intermediate scrutiny); Loving v. Virginia, 388 U.S. 1, 11 (1967) (race subject to strict scrutiny); Korematsu v. United States, 323 U.S. 214, 216 (1944) (national ancestry and ethnic origin subject
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to strict scrutiny). “And because heightened scrutiny requires an exacting investigation of legislative choices, the Supreme Court has made clear that ‘respect for the separation of powers’ should make courts reluctant to establish new suspect classes.” Thomasson v. Perry, 80 F.3d 915, 928 (1996) (quoting City of Cleburne, 473 U.S. at 441); see also Lyng v. Castillo, 477 U.S. 635, 638 (1986) (declining to extend strict scrutiny to “[c]lose relatives”); Mass. Bd. of Retirement v. Murgia, 427 U.S. 307, 313 (1976) (per curiam) (declining to extend strict scrutiny to the elderly).
Windsor now argues that DOMA should be subject to strict (or at least intermediate) scrutiny because homosexuals as a class present the traditional indicia that characterize a suspect class: a history of discrimination, an immutable characteristic upon which the classification is drawn, political powerlessness, and a lack of any relationship between the characteristic in question and the class’s ability to perform in or contribute to society.
In making this claim, Windsor asks the Court to distinguish the precedent in eleven Courts of Appeals that have applied the rational basis test to legislation that classifies on the basis of sexual orientation. See Massachusetts v. HHS, Nos. 10-2207 & 10-2214; Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006); Lofton v. Sec’y of Dep’t of Children & Family Servs., 358 F.3d 804 (11th Cir. 2004); Johnson v. Johnson, 385 F.3d 503 (5th Cir. 2004); Equality Found. v. City of Cincinnati, 128 F.3d 289 (6th Cir. 1997); Thomasson, 80 F.3d 915; Steffan v. Perry, 41 F.3d 677 (D.C. Cir. 1994); High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563 (9th Cir. 1990); Ben-Shalom v. Marsh, 881 F.2d 454 (7th Cir. 1989); Woodard v. United States, 871 F.2d 1068 (Fed. Cir. 1989); Nat’l Gay Task Force v. Bd. of Educ., 729 F.2d 1270 (10th Cir. 1984). She invites
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this Court to decide, as a matter of first impression in the Second Circuit, whether homosexuals are a suspect class.
Though there is no case law in the Second Circuit binding the Court to the rational basis standard in this context, the Court is not without guidance on the matter. For one, as the Supreme Court has observed, “courts have been very reluctant, as they should be in our federal system,” to create new suspect classes. City of Cleburne, 473 U.S. at 442. Moreover, the Supreme Court “conspicuously” has not designated homosexuals as a suspect class, even though it has had the opportunity to do so. See Massachusetts v. HHS, Nos. 10-2207 & 10-2214, slip op. at 15 (noting that “[n]othing indicates that the Supreme Court is about to adopt this new suspect classification when it conspicuously failed to do so in Romer”). Against this backdrop, this district court is not inclined to do so now. In any event, because the Court believes that the constitutional question presented here may be disposed of under a rational basis review, it need not decide today whether homosexuals are a suspect class.
The Court will, however, elaborate on an aspect of the equal protection case law that it believes affects the nature of the rational basis analysis required here. The Supreme Court’s equal protection decisions have increasingly distinguished between “[l]aws such as economic or tax legislation that are scrutinized under rational basis review[, which] normally pass constitutional muster,” and “law[s that] exhibit[] . . . a desire to harm a politically unpopular group,” which receive “a more searching form of rational basis review . . . under the Equal Protection Clause . . . .” Lawrence v. Texas, 539 U.S. 558, 579-80 (2003) (O’Connor, J., concurring); see Romer, 517 U.S. 620; City of Cleburne, 473 U.S. 432; U.S. Dep’t of Agric. v.
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Moreno, 413 U.S. 528 (1973). It is difficult to ignore this pattern, which suggests that the rational basis analysis can vary by context.
At least one Court of Appeals has considered this pattern as well. As the First Circuit explains, “Without relying on suspect classifications, Supreme Court equal protection decisions have both intensified scrutiny of purported justifications where minorities are subject to discrepant treatment and have limited the permissible justifications.” See Massachusetts v. HHS, Nos. 10-2207 & 10-2214, slip op. at 15. And, “in areas where state regulation has traditionally governed, the Court may require that the federal government interest in intervention be shown with special clarity.” Id.
Regardless whether a more “searching” form of rational basis scrutiny is required where a classification burdens homosexuals as a class and the states’ prerogatives are concerned, at a minimum, this Court must “insist on knowing the relation between the classification adopted and the object to be attained.” Romer, 517 U.S. at 632. “The search for the link between classification and objective gives substance to the [equal protection analysis].” Id. Additionally, as has always been required under the rational basis test, irrespective of the context, the Court must consider whether the government’s asserted interests are legitimate. Pursuant to these established principles, and mindful of the Supreme Court’s jurisprudential cues, the Court finds that DOMA’s section 3 does not pass constitutional muster.2
____________________
2 Any additional discussion of heightened or intermediate scrutiny would be “wholly superfluous to the decision” and contrary to settled principles of constitutional avoidance. City of Cleburne, 473 U.S. at 456 (Marshall, J., concurring in part, dissenting in part);
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E. Congress’s Justifications
Contemporaneous with its enactment, Congress justified DOMA as: defending and nurturing the traditional institution of marriage; promoting heterosexuality; encouraging responsible procreation and childrearing; preserving scarce government resources; and defending traditional notions of morality. In its motion to dismiss and memorandum in opposition to summary judgment, BLAG advances some, but not all of these interests as rational bases for DOMA. It additionally asserts that Congress passed DOMA in the interests of caution, maintaining consistency in citizens’ eligibility for federal benefits, promoting a social understanding that marriage is related to childrearing, and providing children with two parents of the opposite sex. The Court considers all of these interests to determine whether Windsor has “negative[d] every conceivable basis which might support [the statute].” Heller, 509 U.S. at 320-21 (citation and internal quotation marks omitted).
1. Caution and The Traditional Institution of Marriage
BLAG submits that “caution” was a rational basis for DOMA insofar as Congress wanted time to consider whether it should embrace (some of) the states’ “novel redefinition” of marriage. As BLAG describes it, caution justified DOMA because altering the social concept of marriage would undermine Congress’s goal of nurturing
____________________
Spector Motor Serv., Inc. v. McLaughlin, 323 U.S. 101, 105 (1944); see also Miss. Univ. for Women, 458 U.S. at 724 n.9 (declining to address strict scrutiny when heightened scrutiny was sufficient to invalidate the challenged action); Hooper v. Bernalillo Cnty. Assessor, 472 U.S. 612, 618 (1985) (declining to reach heightened scrutiny in reviewing classifications that failed the rational basis test).
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the foundational institution of marriage. (BLAG Mot. to Dismiss at 29-31.) By that account, Congress’s putative interest in “caution” seems, in substance, no different than an interest in nurturing the traditional institution of marriage. See H.R. Rep. No. 104-664, at 12. The Court therefore considers both of these interests together.
With respect to traditional marriage, BLAG argues that Congress believed DOMA would promote it by “maintain[ing] the definition of marriage that was universally accepted in American law.” (BLAG Mot. to Dismiss at 28). That interest may be legitimate.3 However, it is unclear how DOMA advances it.
DOMA does not affect the state laws that govern marriage. (BLAG Mot. to Dismiss at 20 (noting that DOMA does not “directly and substantially interfere with the ability of same-sex couples to marry”).) Precisely because the decision of whether same-sex couples can marry is left to the states, DOMA does not, strictly speaking, “preserve” the institution of marriage as one
____________________
3 While tradition as an end in itself may not be a legitimate state interest in this case, see Heller, 509 U.S. at 326 (noting that the “[a]ncient lineage” of a tradition does not necessarily make its preservation a legitimate government goal), the Court acknowledges that an interest in maintaining the traditional institution of marriage, when coupled with other legitimate interests, could be a sound reason for a legislative classification, see Lawrence, 539 U.S. at 585 (O’Connor, J., concurring) (stating that “preserving the traditional institution of marriage” would be a legitimate state interest in an equal protection analysis). To the extent Congress had an interest in defending traditional notions of morality in furtherance of an interest in traditional marriage, H.R. Rep. No. 104-664, at 16, the Court agrees that “[p]reserving th[e] institution [of traditional marriage] is not the same as mere moral disapproval of an excluded group, and that is singularly so in this case given the range of bipartisan support for [DOMA].” Massachusetts v. HHS, Nos. 10-2207 & 10-2214, slip op. at 29, 30 (citation and internal quotation marks omitted).
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between a man and a woman. The statute creates a federal definition of marriage. But that definition does not give content to the fundamental right to marry—and it is the substance of that right, not its facial definition, that actually shapes the institution of marriage. Cf. De Sylva v. Ballentine, 351 U.S. 570, 580 (1956) (noting that “[t]he scope of a federal right is, of course, a federal question, but that does not mean that its content is not to be determined by state, rather than federal law, [which] is especially true where a statute deals with a familial relationship [because] there is no federal law of domestic relations”).
To the extent Congress had any other independent interest in approaching same-sex marriage with caution, for much the same reason, DOMA does not further it. A number of states now permit same-sex marriages. DOMA did not compel those states to “wait[] for evidence spanning a longer term before engaging in . . . a major redefinition of a foundational social institution.” (BLAG Mot. to Dismiss at 29.) Thus, whatever the “social consequences” of this legal development ultimately may be, DOMA has not, and cannot, forestall them.4
____________________
4 Congress also expressed “a corresponding interest in promoting heterosexuality” as “closely related to the interest in protecting traditional marriage.” H.R. Rep. No. 104-664, at 15 n.53. BLAG does not contend that this is a rational basis for DOMA’s classification; nonetheless, the Court briefly considers it, as a “conceivable” basis that “might” support it. Heller, 509 U.S. at 320.
A permissible classification must at least “find some footing in the realities of the subject addressed by the legislation.” Id. at 321. Here, such footing is lacking. DOMA affects only those individuals who are already married. The Court finds it implausible that section 3 does anything to persuade those married persons (who are homosexuals) to abandon their current marriages in favor of
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2. Childrearing and Procreation
Promoting the ideal family structure for raising children is another reason Congress might have enacted DOMA. Again, the Court does not disagree that promoting family values and responsible parenting are legitimate governmental goals. The Court cannot, however, discern a logical relationship between DOMA and those goals.
BLAG argues that Congress enacted DOMA to avoid a social perception that marriage is not linked to childrearing. In furtherance of that interest, it argues, Congress might have passed DOMA to deter heterosexual couples from having children out of wedlock, or to incentivize couples who are pregnant to get married. (BLAG Mot. to Dismiss at 36.) BLAG also claims that Congress had an interest in promoting the optimal social (family) structure for raising children—that is, households with one mother and one father. (BLAG Mot. to Dismiss at 38.) These concerns appear related to Congress’s contemporaneously stated interest in “responsible procreation.” H.R. Rep. No. 104664, at 12-13.
These are interests in the choices that heterosexual couples make: whether to get married, and whether and when to have children. Yet DOMA has no direct impact on heterosexual couples at all; therefore, its ability to deter those couples from having children outside of marriage, or to incentivize couples that are pregnant to get married, is remote, at best. It does not follow from the exclusion of one group from federal benefits (same-sex married persons) that another group of people
____________________
heterosexual relationships. Thus, the stated goal of promoting heterosexuality is so attenuated from DOMA’s classification that it “render[s] the distinction arbitrary or irrational.” City of Cleburne, 473 U.S. at 446.
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(opposite-sex married couples) will be incentivized to take any action, whether that is marriage or procreation. See In re Levenson, 587 F.3d 925, 934 (9th Cir. 2009).
Conceivably, Congress could have been interested more generally in maintaining the societal perception that a primary purpose of marriage is procreation. However, even formulated as such, the Court cannot see a link between DOMA and childrearing. DOMA does not determine who may adopt and raise children. Nor could it, as these matters of family structure and relations “belong[] to the laws of the States and not to the laws of the United States.” Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12 (2004).
At most, then, DOMA has an indirect effect on popular perceptions of what a family “is” and should be, and no effect at all on the types of family structures in which children in this country are raised. And so, although this Court must “accept a legislature’s generalizations even when there is an imperfect fit between means and ends,” Heller, 509 U.S. at 320, here, Congress’s goal is “so far removed” from the classification, it is impossible to credit its justification. Romer, 517 U.S. at 635; see Lewis v. Thompson, 252 F.3d 567, 584 n.27 (2d Cir. 2001) (noting that the justification for the law cannot rely on factual assumptions that are beyond the “limits of ‘rational speculation’” (quoting Heller, 509 U.S. at 320)).
3. Consistency and Uniformity of Federal Benefits
Additionally, BLAG explains that Congress was motivated to define marriage at the federal level to ensure that federal benefits are distributed consistently. In other words, Congress might have enacted DOMA to avoid a scenario in which “people in different States . . . have different eligibility to receive Federal benefits,” depending
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on the state’s marriage laws. (BLAG Mot. to Dismiss at 34 (quoting 142 Cong. Rec. S10121 (daily ed. Sept. 10, 1996) (statement of Sen. Ashcroft)).)
Here, the Court does discern a link between the means and the end. It is problematic, though, that the means used in this instance intrude upon the states’ business of regulating domestic relations. That incursion skirts important principles of federalism and therefore cannot be legitimate, in this Court’s view.
In the first instance, it bears mention that this notion of “consistency,” as BLAG presents it, is misleading. Historically the states—not the federal government— have defined “marriage.” Cf. United States v. Lopez, 514 U.S. 549, 583 (1995) (Kennedy, J., concurring) (noting that the states have enjoyed the latitude to “experiment[] and exercis[e] their own judgment in an area to which [they] lay claim by right of history and expertise”). For that reason, before DOMA, any uniformity at the federal level with respect to citizens’ eligibility for marital benefits was merely a byproduct of the states’ shared definition of marriage. The federal government neither sponsored nor promoted that uniformity. See In re Levenson, 587 F.3d at 933 (noting that the relevant status quo prior to DOMA was the federal government’s recognition of any marriage declared valid according to state law); Gill v. Office of Pers. Mgmt., 699 F. Supp. 2d 374, 393 (D. Mass. 2010) (same).
Yet even if Congress had developed a newfound interest in promoting or maintaining consistency in the marital benefits that the federal government provides, DOMA is not a legitimate method for doing so. To accomplish that consistency, DOMA operates to reexamine the states’ decisions concerning samesex marriage. It sanctions some of those decisions and rejects others. But such a sweeping federal review in
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this arena does not square with our federalist system of government, which places matters at the “core” of the domestic relations law exclusively within the province of the states. See Ankenbrandt v. Richards, 504 U.S. 689, 716 (1992) (Blackmun, J., concurring); Sosna v. Iowa, 419 U.S. 393, 404 (1975) ; see also Massachusetts v. U.S. Dep’t of Health & Human Servs., 698 F. Supp. 2d 234, 249-50 (D. Mass. 2010) (discussing the history of marital status determinations as an attribute of state sovereignty).
The states may choose, through their legislative or constitutional processes, to preserve traditional marriage or to redefine it. See Golinski v. Office of Pers. Mgmt., 824 F. Supp. 2d 968, 988 (N.D. Cal. 2012) (noting that thirty states have passed constitutional amendments banning same-sex marriage). But generally speaking, barring a state’s inability to assume its role in regulating domestic relations, the federal government has not attempted to manage those processes and affairs. See id. at 1000 n.l0 (observing that, historically, the federal government has only legislated in this area where there has been a failure or absence of state government). BLAG has conceded this historical fact. See Transcript of Oral Argument at 10:15-20, 18:2-5, Golinski, 824 F. Supp. 2d 968 (No.10-257) (conceding that BLAG’s “research hasn’t shown that there are historical examples which [sic] Congress has legislated on behalf of the federal government in the area of domestic relations”). This is the “virtue of federalism.” Massachusetts v. HHS, Nos. 10-2207 & 10-2214, slip op. at 30.
4. Conserving the Public Fisc
Lastly, Congress also justified DOMA as a means of conserving government resources. (BLAG Mot. to Dismiss at 32.) An interest in conserving the public fisc alone, however, “can hardly justify the classification used in allocating those resources.” Plyler, 457 U.S. at
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227. After all, excluding any “arbitrarily chosen group of individuals from a government program” conserves government resources. Dragovich v. U.S. Dep’t of the Treasury, 764 F. Supp. 2d 1178, 1190 (N.D. Cal. 2011). With no other rational basis to support it, Congress’s interest in economy does not suffice. Accord, e.g., Dragovich v. U.S. Dep’t of the Treasury, No. C 10-01564, slip op. at 26 (N.D. Cal. May 24, 2012); Golinski, 824 F. Supp. 2d at 994-95.
CONCLUSION For the foregoing reasons, Plaintiff’s motion for summary judgment is GRANTED and DefendantIntervenor’s motion to dismiss is DENIED. The Court declares that section 3 of the Defense of Marriage Act, 1 U.S.C. § 7, is unconstitutional as applied to Plaintiff. Plaintiff is awarded judgment in the amount of $353,053.00, plus interest and costs allowed by law. Each party shall bear their own costs and fees. This case is CLOSED. The clerk of the court is directed to terminate the motions at docket numbers 28, 49, and 52. SO ORDERED:
/s/ Barbara S. Jones BARBARA S. JONES UNITED STATES DISTRICT JUDGE
Dated: New York, New York June 6, 2012
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Appendix B
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
No. 10 CIVIL 8435 (BSJ) Edith Schlain WindSor, plaintiff
v. thE UnitEd StatES of amErica,
dEfEndant
Filed: June 6, 2012
JUDGMENT
Plaintiff having moved for summary judgment; Defendant-Intervenor having moved to dismiss, and the matter having come before the Honorable Barbara S. Jones, United States District Judge, and the Court, on June 6, 2012, having rendered its Order granting Plaintiff’s motion for summary judgment, denying Defendant-Intervenor’s motion to dismiss, declaring that section 3 of the Defense of Marriage Act, 1 U.S.C. § 7, is unconstitutional as applied to Plaintiff, awarding Plaintiff judgment in the amount of $363,053.00, plus interest and costs allowed by law with each party to bear their own costs and fees, it is,
ORDERED, ADJUDGED AND DECREED: That for the reasons stated in the Court’s Order dated June 6, 2012, Plaintiff’s motion for summary judgment is granted and Defendant-Intervenor’s motion to dismiss is
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denied; the Court declares that section 3 of the Defense of Marriage Act, 1 U.S.C. § 7, is unconstitutional as applied to Plaintiff; Plaintiff is awarded judgment in the amount of $363,053.00, plus interest and costs allowed by law; each party shall bear their own costs and fees; accordingly, the case is closed.
Dated: New York, New York June 7, 2012
/s/ RUBY J. KRAJICK Clerk of Court

BY:

[UNINTELLIGIBLE]

Deputy Clerk

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Appendix C
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
No. 10-CV-8435 (BSJ)(JCF) Edith Schlain WindSor, in her capacity as executor of the estate of thEa clara SpyEr, plaintiff
v. thE UnitEd StatES of amErica, dEfEndant
Filed: June 8, 2012
NOTICE OF APPEAL OF INTERVENOR-DEFENDANT THE BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES
Intervenor-Defendant the Bipartisan Legal Advisory Group of the U.S. House of Representatives (“House”) hereby appeals to the U.S. Court of Appeals for the Second Circuit the District Court’s Order (June 6, 2012) (ECF No. 93), and Judgment (June 7, 2012) (ECF No. 94), both insofar as they grant plaintiff’s [ . . . ] Motion for Summary Judgment (June 24, 2011) (ECF No. 28) and deny the [House]’s Motion to Dismiss (Aug. 1, 2011) (ECF No. 52). Copies of the Order and Judgment are attached as Exhibits A and B, respectively.
The statutory basis for this appeal is 28 U.S.C. § 1291. The House is exempt from the filing fee requirement for this appeal. See 28 U.S.C. § 1913; Judicial Conference of
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the United States, Court of Appeals Miscellaneous Fee Schedule, available at
http://www.uscourts.gov/FormsAndFees/Fees/ CourtOfAppealsMiscellaneousFeeSchedule.aspx.
Respectfully submitted,
/s/ Paul D. Clement Paul D. Clement1 H. Christopher Bartolomucci Conor B. Dugan Nicholas J. Nelson
BANCROFT PLLC 1919 M Street, N.W., Suite 470 Washington, D.C. 20036 Telephone: (202) 234-0090 Facsimile: (202) 234-2806
Counsel for Intervenor-Defendant the Bipartisan Legal Advisory Group of the U.S. House of Representatives2
____________________
1 Kerry W. Kircher, as the ECF filer of this document, attests that concurrence in the filing of the document has been obtained from signatory Paul D. Clement.
2 The Bipartisan Legal Advisory Group, which speaks for the House in litigation matters, is currently comprised of the Honorable John A. Boehner, Speaker of the House, the Honorable Eric Cantor, Majority Leader, the Honorable Kevin McCarthy, Majority Whip, the Honorable Nancy Pelosi, Democratic Leader, and the Honorable Steny H. Hoyer, Democratic Whip. The Democratic Leader and Democratic Whip decline to support the filing of this Notice of Appeal.
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OF COUNSEL: Kerry W. Kircher, General Counsel William Pittard, Deputy General Counsel Christine Davenport, Senior Assistant Counsel Todd B. Tatelman, Assistant Counsel Mary Beth Walker, Assistant Counsel OFFICE OF GENERAL COUNSEL U.S. HOUSE OF REPRESENTATIVES 219 Cannon House Office Building Washington, D.C. 20515 Telephone: (202) 225-9700 Facsimile: (202) 226-1360 June 8, 2012
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Appendix D
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

No. 10-CV-8435 (BSJ)(JCF) ECF CASE Edith Schlain WindSor, plaintiff v. thE UnitEd StatES of amErica,
dEfEndant
Filed: June 14, 2012

NOTICE OF APPEAL

TO THE CLERK OF THIS COURT AND ALL PARTIES OF RECORD:

NOTICE IS HEREBY GIVEN that Defendant the United States of America hereby appeals to the United States Court of Appeals for the Second Circuit from the Judgment dated June 7, 2012 [ECF No. 94] and the underlying Order dated June 6, 2012 [ECF No. 93].

Dated this 14th day of June, 2012.

Dated: June 14, 2012

Respectfully submitted,

STUART F. DELERY Acting Assistant Attorney General

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ARTHUR R. GOLDBERG Assistant Branch Director /s/ Jean Lin JEAN LIN (NY Bar No. 4074530) Senior Trial Counsel United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave., N.W. Washington, DC 20530
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Appendix E
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
Civil Action No. 10-CV-8435 (BSJ) (JCF) Edith Schlain WindSor, in her capacity as executor of the estate of thEa clara SpyEr, plaintiff
v. thE UnitEd StatES of amErica, dEfEndant
Filed: February 25, 2011
NOTICE TO THE COURT BY DEFENDANT UNITED STATES OF AMERICA
Defendant United States of America, by its undersigned counsel, hereby notifies the Court and the parties that the Department of Justice will cease defending the constitutionality of Section 3 of the Defense of Marriage Act, 1 U.S.C. § 7, for the reasons explained in the attached letter to the Court from Tony West, Assistant Attorney General for the Civil Division, dated February 24, 2011. The reasons cited in Assistant Attorney General West’s letter are further explained in the letter from the Attorney General to The Honorable John A. Boehner, Speaker of the House, dated February 23, 2011, which is attached thereto. The Attorney General has informed Members of Congress of this decision pursuant to 28 U.S.C. § 530D(a)(1)(B)(ii), so that Members who wish to defend Section 3 may pursue that option.
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Dated: February 25, 2011 Respectfully submitted, TONY WEST Assistant Attorney General ARTHUR R. GOLDBERG Assistant Branch Director /s/ Jean Lin JEAN LIN (NY Bar No. 4074530) Senior Counsel United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave., N.W. Washington, DC 20530 E-mail: jean.lin@usdoj.gov Tel: (202) 514-3716 Fax: (202) 616-8470
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[Filed Feb. 24, 2011, S.D.N.Y. No. 10-8435(BSJ)(JCF)]
U. S. Department of Justice
Civil Division
Assistant Attorney General
Washington, D.C. 20530
February 24, 2011
VIA ECF
Honorable Barbara S. Jones United States District Judge United States District Court for the
Southern District of New York 500 Pearl Street New York, NY 10007-1312
Re: Windsor v. United States, Civil Action No. 10-843 5 (BSJ)(JCF)
Dear Judge Jones:
The above-referenced action involves the constitutionality of Section 3 of the Defense of Marriage Act (“DOMA”), 1 U.S.C. § 7. The President and Attorney General have recently made a determination regarding the constitutionality of Section 3. Pursuant to the attached letter, the Attorney General and President have concluded: that heightened scrutiny is the appropriate standard of review for classifications based on sexual orientation; that, consistent with that standard, Section 3 of DOMA may not be constitutionally applied to samesex couples whose marriages are legally recognized under state law; and that the Department will cease its defense of Section 3 in such cases.
Further, as the Attorney General explained in the attached letter, we hereby “notify the courts of our
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interest in providing Congress a full and fair opportunity to participate in the litigation in those cases.” In addition, we “will remain parties to the case and continue to represent the interests of the United States throughout the litigation.”
Respectfully submitted, Tony West Assistant Attorney General
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[Filed Feb. 24, 2011, S.D.N.Y. No. 10-8435(BSJ)(JCF)]
Office of the Attorney General
Washington, D.C. 20530
February 23, 2011
The Honorable John A. Boehner Speaker U.S. House of Representatives Washington, DC 20515
Re: Defense of Marriage Act
Dear Mr. Speaker:
After careful consideration, including review of a recommendation from me, the President of the United States has made the determination that Section 3 of the Defense of Marriage Act (“DOMA”), 1 U.S.C. § 7,1 as applied to same-sex couples who are legally married under state law, violates the equal protection component of the Fifth Amendment. Pursuant to 28 U.S.C. § 530D, I am writing to advise you of the Executive Branch’s determination and to inform you of the steps the Department will take in two pending DOMA cases to implement that determination.
While the Department has previously defended DOMA against legal challenges involving legally married same-sex couples, recent lawsuits that challenge the
____________________
1 DOMA Section 3 states; “In 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.”
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constitutionality of DOMA Section 3 have caused the President and the Department to conduct a new examination of the defense of this provision. In particular, in November 2011, plaintiffs filed two new lawsuits challenging the constitutionality of Section 3 of DOMA in jurisdictions without precedent on whether sexual-orientation classifications are subject to rational basis review or whether they must satisfy some form of heightened scrutiny. Windsor v. United States, No.1:10-cv-8435 (S.D.N.Y.); Pedersen v. OPM, No. 3:10cv-1750 (D. Conn.). Previously, the Administration has defended Section 3 in jurisdictions where circuit courts have already held that classifications based on sexual orientation are subject to rational basis review, and it has advanced arguments to defend DOMA Section 3 under the binding standard that has applied in those cases.2
These new lawsuits, by contrast, will require the Department to take an affirmative position on the level of scrutiny that should be applied to DOMA Section 3 in a circuit without binding precedent on the issue. As described more fully below, the President and I have concluded that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Section 3 of DOMA is unconstitutional.
Standard of Review
The Supreme Court has yet to rule on the appropriate level of scrutiny for classifications based on sexual ____________________
2 See, e.g., Dragovich v. U.S. Department of the Treasury, 2011 WL 175502 (N.D. Cal. Jan. 18, 2011); Gill v. Office of Personnel Management, 699 F. Supp. 2d 374 (D. Mass. 2010); Smelt v. County of Orange, 374 F. Supp. 2d 861, 880 (C.D. Cal.,2005); Wilson v. Ake, 354 F.Supp.2d 1298, 1308 (M.D. Fla. 2005); In re Kandu, 315 B.R. 123,145 (Bkrtcy. W.D. Wash. 2004); In re Levenson, 587 F.3d 925, 931 (9th Cir. E.D.R. Plan Administrative Ruling 2009).
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orientation. It has, however, rendered a number of decisions that set forth the criteria that should inform this and any other judgment as to whether heightened scrutiny applies: (1) whether the group in question has suffered a history of discrimination; (2) whether individuals “exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group”; (3) whether the group is a minority or is politically powerless; and (4) whether the characteristics distinguishing the group have little relation to legitimate policy objectives or to an individual’s “ability to perform or contribute to society.” See Bowen v. Gilliard, 483 U.S. 587, 602-03 (1987); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 441-42 (1985).
Each of these factors counsels in favor of being suspicious of classifications based on sexual orientation. First and most importantly, there is, regrettably, a significant history of purposeful discrimination against gay and lesbian people, by governmental as well as private entities, based on prejudice and stereotypes that continue to have ramifications today. Indeed, until very recently, states have “demean[ed] the[] existence” of gays and lesbians “by making their private sexual conduct a crime.” Lawrence v. Texas, 539 U.S. 558, 578 (2003).3
____________________
3 While significant, that history of discrimination is different in some respects from the discrimination that burdened AfricanAmericans and women. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 216 (1995) (classifications based on race “must be viewed in light of the historical fact that the central purpose of the Fourteenth Amendment was to eliminate racial discrimination emanating from official sources in the States,” and “[t]his strong policy renders racial classifications ‘constitutionally suspect.’”); United States v. Virginia, 518 U.S. 515, 531 (1996) (observing that “‘our Nation has had a long and unfortunate history of sex discrimination’” and pointing out the denial of the right to vote to women until 1920). In
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Second, while sexual orientation carries no visible badge, a growing scientific consensus accepts that sexual orientation is a characteristic that is immutable, see Richard A. Posner, Sex and Reason 101 (1992); it is undoubtedly unfair to require sexual orientation to be hidden from view to avoid discrimination, see Don’t Ask, Don’t Tell Repeal Act of 2010, Pub. L, No. 111-321, 124 Stat. 3515 (2010).
Third, the adoption of laws like those at issue in Romer v. Evans, 517 U.S. 620 (1996), and Lawrence, the longstanding ban on gays and lesbians in the military, and the absence of federal protection for employment discrimination on the basis of sexual orientation show the group to have limited political power and “ability to attract the [favorable] attention of the lawmakers.” Cleburne, 473 U.S. at 445. And while the enactment of the Matthew Shepard Act and pending repeal of Don’t Ask, Don’t Tell indicate that the political process is not closed entirely to gay and lesbian people, that is not the standard by which the Court has judged “political powerlessness.” Indeed, when the Court ruled that gender-based classifications were subject to heightened scrutiny, women already had won major political victories such as the Nineteenth Amendment (right to vote) and protection under Title VII (employment discrimination).
____________________
the case of sexual orientation, some of the discrimination has been based on the incorrect belief that sexual orientation is a behavioral characteristic that can be changed or subject to moral approbation. Cf. Cleburne, 473 U.S. at 441 (heightened scrutiny may be warranted for characteristics “beyond the individual’s control” and that “very likely reflect outmoded notions of the relative capabilities of” the group at issue); Boy Scouts of America v. Dale, 530 U.S. 640 (2000) (Stevens, J., dissenting) (“Unfavorable opinions about homosexuals ‘have ancient roots.’” (quoting Bowers, 478 U.S. at 192)).
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Finally, there is a growing acknowledgment that sexual orientation “bears no relation to ability to perform or contribute to society.” Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (plurality). Recent evolutions in legislation (including the pending repeal of Don’t Ask, Don’t Tell), in community practices and attitudes, in case law (including the Supreme Court’s holdings in Lawrence and Romer), and in social science regarding sexual orientation all make clear that sexual orientation is not a characteristic that generally bears on legitimate policy objectives. See, e.g., Statement by the President on the Don’t Ask, Don’t Tell Repeal Act of 2010 (“It is time to recognize that sacrifice, valor and integrity are no more defined by sexual orientation than they are by race or gender, religion or creed.”)
To be sure, there is substantial circuit court authority applying rational basis review to sexual-orientation classifications. We have carefully examined each of those decisions. Many of them reason only that if consensual same-sex sodomy may be criminalized under Bowers v. Hardwick, then it follows that no heightened review is appropriate – a line of reasoning that does not survive the overruling of Bowers in Lawrence v. Texas, 538 U.S. 558 (2003).4 Others rely on claims regarding “procreational responsibility” that the Department has disavowed already in litigation as unreasonable, or claims regarding the immutability of sexual orientation that we do not believe can be reconciled with more
____________________
4 See Equality Foundation v. City of Cincinnati, 54 F.3d 261, 266–67 & n. 2. (6th Cir. 1995); Steffan v. Perry, 41 F.3d 677, 685 (D.C. Cir. 1994); Woodward v. United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989); Ben-Shalom v. Marsh, 881 F.2d 454, 464 (7th Cir. 1989); Padula v. Webster, 822 F.2d 97, 103 (D.C. Cir. 1987).
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recent social science understandings,5 And none engages in an examination of all the factors that the Supreme Court has identified as relevant to a decision about the appropriate level of scrutiny. Finally, many of the more recent decisions have relied on the fact that the Supreme Court has not recognized that gays and lesbians constitute a suspect class or the fact that the Court has applied rational basis review in its most recent decisions addressing classifications based on sexual orientation, Lawrence and Romer.6 But neither of those decisions reached, let alone resolved, the level of scrutiny issue because in both the Court concluded that the laws could not even survive the more deferential rational basis standard.
Application to Section 3 of DOMA
In reviewing a legislative classification under heightened scrutiny, the government must establish that the classification is “substantially related to an
____________________
5 See, e.g., Lofton v. Secretary of the Dep’t of Children & Family Servs., 358 F.3d 804, 818 (11th Cir. 2004) (discussing child-rearing rationale); High Tech Gays v. Defense Indust. Sec. Clearance Office, 895 F.2d 563, 571 (9th Cir. 1990) (discussing immutability). As noted, this Administration has already disavowed in litigation the argument that DOMA serves a governmental interest in “responsible procreation and child-rearing.” H.R. Rep. No. 104-664, at 13. As the Department has explained in numerous filings, since the enactment of DOMA, many leading medical, psychological, and social welfare organizations have concluded, based on numerous studies, that children raised by gay and lesbian parents are as likely to be welladjusted as children raised by heterosexual parents.
6 See Cook v. Gates, 528 F.3d 42, 61 (1st Cir. 2008); Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 866 (8th Cir. 2006); Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004); Veney v. Wyche, 293 F.3d 726, 732 (4th Cir. 2002); Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati, 128 F.3d 289, 292-94 (6th Cir. 1997).
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important government objective.” Clark v. Jeter, 486 U.S. 456, 461 (1988). Under heightened scrutiny, “a tenable justification must describe actual state purposes, not rationalizations for actions in fact differently grounded.” United States v, Virginia, 518 U.S. 515, 535-36 (1996). “The justification must be genuine, not hypothesized or invented post hoc in response to litigation.” Id. at 533.
In other words, under heightened scrutiny, the United States cannot defend Section 3 by advancing hypothetical rationales, independent of the legislative record, as it has done in circuits where precedent mandates application of rational basis review. Instead, the United States can defend Section 3 only by invoking Congress’ actual justifications for the law.
Moreover, the 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 stereotypebased thinking and animus the Equal Protection Clause is designed to guard against.7 See Cleburne, 473 U.S. at 448 (“mere negative attitudes, or fear” are not permissible
____________________
7 See, e.g., H.R. Rep. at 15–16 (judgment [opposing same-sex marriage] entails both moral disapproval of homosexuality and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality”); id. at 16 (same-sex marriage “legitimates a public union, a legal status that most people… feel ought to be illegitimate” and “put[s] a stamp of approval… on a union that many people… think is immoral”); id. at 15 (“Civil laws that permit only heterosexual marriage reflect and honor a collective moral judgment about human sexuality”); id. (reasons behind heterosexual marriage—procreation and child-rearing—are “in accord with nature and hence have a moral component”); id. at
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bases for discriminatory treatment); see also Romer, 517 U.S. at 635 (rejecting rationale that law was supported by “the liberties of landlords or employers who have personal or religious objections to homosexuality”); Palmore v. Sidotti, 466 U.S. 429, 433 (1984) (“Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.”).
Application to Second Circuit Cases
After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married samesex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in Windsor and Pedersen, now pending in the Southern District of New York and the District of Connecticut. I concur in this determination.
Notwithstanding this determination, the President has informed me that Section 3 will continue to be enforced by the Executive Branch. To that end, the President has instructed Executive agencies to continue to comply with Section 3 of DOMA, consistent with the Executive’s obligation to take care that the laws be
____________________
31 (favorably citing the holding in Bowers that an “anti-sodomy law served the rational purpose of expressing the presumed belief… that homosexual sodomy is immoral and unacceptable”); id. at 17 n.56 (favorably citing statement in dissenting opinion in Romer that “[t]his Court has no business… pronouncing that ‘animosity’ toward homosexuality is evil”).
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faithfully executed, unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law’s constitutionality. This course of action respects the actions of the prior Congress that enacted DOMA, and it recognizes the judiciary as the final arbiter of the constitutional claims raised.
As you know, the Department has a longstanding practice of defending the constitutionality of dulyenacted statutes if reasonable arguments can be made in their defense, a practice that accords the respect appropriately due to a coequal branch of government. However, the Department in the past has declined to defend statutes despite the availability of professionally responsible arguments, in part because the Department does not consider every plausible argument to be a “reasonable” one. “[D]ifferent cases can raise very different issues with respect to statutes of doubtful constitutional validity,” and thus there are “a variety of factors that bear on whether the Department will defend the constitutionality of a statute.” Letter to Hon. Orrin G. Hatch from Assistant Attorney General Andrew Fois at 7 (Mar. 22, 1996). This is the rare case where the proper course is to forgo the defense of this statute. Moreover, the Department has declined to defend a statute “in cases in which it is manifest that the President has concluded that the statute is unconstitutional,” as is the case here. Seth P. Waxman, Defending Congress, 79 N.C. L.Rev. 1073, 1083 (2001).
In light of the foregoing, I will instruct the Department’s lawyers to immediately inform the district courts in Windsor and Pedersen of the Executive Branch’s view that heightened scrutiny is the appropriate standard of review and that, consistent with that standard, Section 3 of DOMA may not be constitutionally applied to samesex couples whose marriages are legally recognized
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under state law. If asked by the district courts in the Second Circuit for the position of the United States in the event those courts determine that the applicable standard is rational basis, the Department will state that, consistent with the position it has taken in prior cases, a reasonable argument for Section 3’s constitutionality may be proffered under that permissive standard. Our attorneys will also notify the courts of our interest in providing Congress a full and fair opportunity to participate in the litigation in those cases. We will remain parties to the case and continue to represent the interests of the United States throughout the litigation.
Furthermore, pursuant to the President’s instructions, and upon further notification to Congress, I will instruct Department attorneys to advise courts in other pending DOMA litigation of the President’s and my conclusions that a heightened standard should apply, that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3.
A motion to dismiss in the Windsor and Pedersen cases would be due on March 11, 2011. Please do not hesitate to contact us if you have any questions.
Sincerely yours,
Eric H. Holder, Jr. Attorney General
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Appendix F
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
No. 10 Civ. 8435 (BSJ) (JCF) Edith Schlain WindSor, plaintiff
v. thE UnitEd StatES of amErica,
dEfEndant
Filed: August 1, 2011
THE BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES’ AMENDED RESPONSE TO PLAINTIFF’S FIRST
REQUESTS FOR ADMISSION
Pursuant to the Court’s order of July 28, 2011, in this case, and to Rules 26 and 36 of the Federal Rules of Civil Procedure, Interventor-Defendant The Bipartisan Legal Advisory Group of the U.S. House of Representatives (“Defendant”) makes the following supplemental response to Plaintiff’s First Requests for Admission.
Request for Admission 1. Admit that if, at the time of her, death, Thea Spyer had been married to a man instead of a woman, who was a U.S. citizen and who survived Thea Spyer’s death, her estate would have qualified for the estate tax marital deduction, 26 U.S.C. § 2056(a), and would not have been liable for any federal estate tax.
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Response: Defendant admits that Plaintiff has submitted documents that, if accurate, establish the eligibility of Spyer’s estate for the estate tax marital deduction and that the estate would not have been liable for federal estate tax, if Spyer had been married to a surviving male U.S. citizen at the time of her death.
/s/ H. Christopher Bartolomucci Paul D. Clement H. Christopher Bartolomucci Conor B. Dugan Nicholas J. Nelson BANCROFT PLLC 1919 M Street, N.W., Suite 470 Washington, D.C. 20036 (202) 234-0090 Counsel for Defendant-Intervenor The Bipartisan Legal Advisory Group of the U.S. House of Representative
Dated: August 1, 2011
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Appendix G
1. U.S. Const., Amend. V provides, in pertinent part:
No person shall * * * be deprived of life, liberty, or property, without due process of law * * *.
2. 1 U.S.C. 7 provides:
Definition of “marriage” and “ spouse”
In 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.
3. 28 U.S.C. 2056(a) provides:
Allowance of marital deduction – For purposes of the tax imposed by section 2001, the value of the taxable estate shall, except as limited by subsection (b), be determined by deducting from the value of the gross estate an amount equal to the value of any interest in property which passes or has passed from the decedent to his surviving spouse, but only to the extent that such interest is included in determining the value of the gross estate.
4. N.Y. Tax Law § 952 (a) provides:
A tax is hereby imposed on the transfer of the New York estate by every deceased individual who at his or her death was a resident of New York state. The tax imposed by this subsection shall be an amount equal to the maximum amount allowable against the federal estate Tax as a credit for state death taxes under section two thousand eleven of the internal revenue code.
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5. N.Y. Tax Law § 961 (a) provides: (a) General.–A final federal determination as to (1) the inclusion in the federal gross estate of any item of property or interest in property, (2) the allowance of any item claimed as a deduction from the federal gross estate, or (3) the value or amount of any such item, shall also determine the same issue for purposes of the tax under this article unless such final federal determination is shown by a preponderance of the evidence to be erroneous.
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 Windsor v. U.S., 699 F.3d 169 (2012) 110 A.F.T.R.2d 2012-6370, 2012-2 USTC P 60,654
699 F.3d 169 United States Court of Appeals,
Second Circuit.
Edith Schlain WINDSOR, in her Official Capacity as Executor of the Estate of Thea Clara Spyer, Plaintiff–Appellee, v. UNITED STATES of America, Defendant– Appellant, and Bipartisan Legal Advisory Group of the United States House of Representatives, Intervenor– Defendant–Appellant.
Docket Nos. 12–2335–cv(L), 12–2435(Con). |
Argued: Sept. 27, 2012. |
Decided: Oct. 18, 2012.
Synopsis Background: Taxpayer who, as surviving spouse of same-sex couple, was denied benefit of spousal deduction due to definition of “marriage” and “spouse” provided by Defense of Marriage Act (DOMA) brought action for refund of federal estate taxes and for declaration that pertinent provision of DOMA violated Fifth Amendment’s Equal Protection Clause. After Department of Justice declined to continue its defense of statute, congressional group was allowed to intervene to defend statute’s constitutionality. The United States District Court for the Southern District of New York, Barbara S. Jones, J., 833 F.Supp.2d 394,granted summary judgment for taxpayer. United States, as nominal defendant, and congressional group appealed.
Holdings: The Court of Appeals, Dennis Jacobs, Chief Judge, held that:
striking of United States’s notice of appeal and realignment of appellate parties was not warranted;
question of whether, at the time of spouse’s death, New York law recognized same-sex marriages entered into in other jurisdictions, would not be certified to New York Court of Appeals;
equal protection review of challenged provision of
1

DOMA required heightened scrutiny;
intermediate scrutiny applicable to quasi-suspect classes governed equal protection challenge to statute;
purported need for uniformity was not exceedingly persuasive justification allowing classification drawn by statute to withstand intermediate scrutiny on equal protection challenge;
protection of the fisc was not important government interest allowing classification drawn by statute to withstand intermediate scrutiny on equal protection challenge; and
statute was not substantially related to government interest in promotion of procreation, and thus did not withstand intermediate scrutiny on such grounds on equal protection challenge.
Affirmed.
Straub, Circuit Judge, filed an opinion concurring in part and dissenting in part.
West Codenotes
Held Unconstitutional 1 U.S.C.A. § 7
Attorneys and Law Firms
*173 Stuart F. Delery, Acting Assistant Attorney General, United States Department of Justice, Washington, DC (Michael Jay Singer, August E. Flentje, on the brief), for Defendant–Appellant.
Paul D. Clement, Bancroft PLLC, Washington, DC (H. Christopher Bartolomucci, Conor B. Dugan, and Nicholas J. Nelson, on the brief; Kerry W. Kircher, William Pittard, Christine Davenport, Todd B. Tatelman, Mary Beth Walker, Office of General Counsel, United States House of Representatives, Washington, DC, of counsel), for Intervenor–Defendant–Appellant.
Roberta A. Kaplan, Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, N.Y. (Andrew J. Ehrlich, Jaren Janghorbani, Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, NY, James D. Esseks and Rose A. Saxe, American Civil Liberties Union, New York, NY, and Melissa Goodman, Arthur Eisenberg, and Mariko Hirose, New York Civil Liberties Union Foundation, New York,

Windsor v. U.S., 699 F.3d 169 (2012)
110 A.F.T.R.2d 2012-6370, 2012-2 USTC P 60,654
NY, on the brief), for Appellee.
Vincent P. McCarthy, Litchfield, CT, for amicus curiae American College of Pediatricians in support of Intervenor–Defendant–Appellant.
Joseph A. Campbell, Alliance Defending Freedom, Scottsdale, AZ, for amicus curiae Frederick Douglas Foundation in support of Intervenor–Defendant– Appellant.
Cecilia Noland–Heil, American Center for Law & Justice, Virginia Beach, VA (Erik Zimmerman, Jay Alan Sekulow and Stuart J. Roth, American Center for Law & Justice, Virginia Beach, VA and Washington, DC, on the brief), for amici curiae Former Attorneys General Edwin Meese III and John Ashcroft in support of Intervenor– Defendant–Appellant.
Gregory F. Zoeller, Attorney General, State of Indiana, Indianapolis, IN (Thomas M. Fisher, Solicitor General, Ellen H. Meilaender, Deputy Attorney General, on the brief), for amici curiae States of Indiana, Alabama, Alaska, Arizona, Colorado, Georgia, Idaho, Kansas, Michigan, Nebraska, Oklahoma, South Carolina, South Dakota and Virginia in support of Intervenor–Defendant– Appellant.
*174 Joshua K. Baker, National Organization for Marriage, Washington, DC (William C. Duncan, Marriage Law Foundation, Lehi, UT, on the brief), for amicus curiae National Organization for Marriage in support of Intervenor–Defendant–Appellant.
Steven W. Fitschen, The National Legal Foundation, Virginia Beach, VA, for amicus curiae Concerned Women for America in support of Intervenor–Defendant– Appellant.
William F. Sheehan, Goodwin Procter LLP, Washington, DC (Andrew S. Hudson, Goodwin Procter LLP, Washington, DC and Nathalie F.P. Gilfoyle, American Psychological Association, Washington, DC, on the brief), for amici curiae the American Psychological Association, the American Academy of Pediatrics, the American Psychiatric Association, the American Psychoanalytic Association, the National Association of Social Workers and its New York City and State Chapters, and the New York State Psychological Association in support of Plaintiff–Appellee.
Susan L. Sommer, Lambda Legal Defense & Education Fund, Inc., New York, N.Y. (Timothy S. Fisher and Brian P. Rice, McCarter & English, LLP, Hartford, CT and Shannon P. Minter and Christopher F. Stoll, National Center for Lesbian Rights, San Francisco, CA, on the
2

brief), for amici curiae Bar Associations and Public Interest and Legal Service Organizations in Support of Plaintiff–Appellee.
Matthew F. Damm, O’ Melveny & Myers LLP, New York, N.Y. (Dawn Sestito, Dimitri D. Portnoi, and Amy R. Lucas, O’Melveny & Myers LLP, Los Angeles, CA and New York, NY, on the brief), for amici curiae Family Law Professors in Support of Plaintiff–Appellee.
Michael A. Cardozo, Corporation Counsel of the City of New York, New York, N.Y. (Francis F. Caputo, Susan Paulson, on the brief), for amici curiae the City of New York, the Council of the City of New York, Michael R. Bloomberg, in His Official Capacity as Mayor of the City of New York, and Christine C. Quinn, in Her Official Capacity as Speaker of the Council of the City of New York in Support of Plaintiff–Appellee.
Marc Wolinsky, Wachtell, Lipton, Rosen & Katz, New York, N.Y. (Jonathan M. Moses, Kevin S. Schwartz, Luke M. Appling, on the brief), for amicus curiae the Partnership for New York City in Support of Plaintiff– Appellee.
Suzanne B. Goldberg, Columbia Law School, New York, NY, for amicus curiae Columbia Law School Sexuality & Gender Law Clinic in Support of Plaintiff–Appellee.
Catherine R. Connors, Pierce Atwood LLP, Portland, ME, for amici curiae Historians in Support of Plaintiff– Appellee.
Miriam R. Nemetz, Mayer Brown LLP, Washington, DC (Kathleen Connery Dawe and Michael B. Kimberly, Mayer Brown LLP, Washington, DC, and Heather C. Sawyer, Committee on the Judiciary, John Conyers, Jr., and Jerrold Nadler, Ranking Members, Washington, DC), for amici curiae Members of the U.S. House of Representatives, in Support of Plaintiff–Appellee.
Nicole G. Berner, Washington, DC (James B. Coppess, AFL–CIO, Washington, DC, Patrick Szymanski, Change to Win, Washington, DC, and Alice O’Brien, National Education Association, Washington, DC, on the brief), for amici curiae American Federation of Labor and Congress of Industrial Organizations, Change to Win, and National Education Association in support of Plaintiff–Appellee.
Joseph F. Tringali, Simpson Thacher & Bartlett LLP, New York, N.Y. ( *175 Alexandra C. Pitney and Nicholas S. Davis, on the brief), for amici curiae Service and Advocacy for Gay, Lesbian, Bisexual and Transgender Elders (SAGE), National Senior Citizens Law Center and American Society on Aging in support of Plaintiff– Appellee.

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Debo P. Adegbile, NAACP Legal Defense & Education Fund, Inc., New York, N.Y. (Elice C. Boddie, Rachel M. Kleinman, Ria A. Tabacco, Joshua Civin, NAACP Legal Defense & Education Fund, Inc., New York, NY, and Washington, DC), for amicus curiae NAACP Legal Defense & Education Fund, Inc., in support of Plaintiff– Appellee.
Harvey J. Wolkoff, Ropes & Gray LLP, New York, N.Y. (Stuart W. Yothers and Samuel P. Bickett, Ropes & Gray LLP, New York, N.Y. and Steven M. Freeman and Seth M. Marnin, Anti–Defamation League, New York, NY, on the brief), for amici curiae Anti–Defamation League, Central Conference of American Rabbis, Congregation Beit Simchat Torah, Bend the Arc: A Jewish Partnership for Justice, Hadassah: the Women’s Zionist Organization of America, the Hindu American Foundation, Interfaith Alliance Foundation, Japanese Citizens League, the Justice and Witness Ministries: United Church of Christ, National Counsel of Jewish Women, People for the American Way Foundation, Union for Reform Judaism, Women’s League for Conservative Judaism, and Women of Reform Judaism in support of Plaintiff–Appellee.
Sharon L. Nelles, Sullivan & Cromwell LLP, New York, N.Y. (H. Rodgin Cohen, Mitchell S. Eitel, William H. Wagener, Heather H. Volik, Diana G. Iskelov, Sullivan & Cromwell LLP, New York, N.Y. and Laura W. Brill and Meaghan Field, Kendall Brill & Klieger LLP, Los Angeles, CA, on the brief), for amici curiae Professors of Family and Child Welfare Law in support of Plaintiff– Appellee.
Eric T. Schneiderman, Attorney General, State of New York, New York, N.Y. (William H. Sorrell, Attorney General, State of Vermont, Montpelier, VT and George Jepsen, Attorney General, State of Connecticut, Hartford, CT, on the brief) for amici curiae States of New York, Vermont, and Connecticut in support of neither party.
Melanie Sloan, Citizens for Responsibility and Ethics in Washington, Washington, DC, (Anne L. Weismann, Citizens for Responsibility and Ethics in Washington, Washington, DC and Alan B. Morrison, George Washington Law School, Washington, DC, on the brief), for amicus curiae Citizens for Responsibility and Ethics in Washington in support of neither party.
Before: JACOBS, Chief Judge, STRAUB and DRONEY, Circuit Judges.
Opinion
3

Judge STRAUB dissents in part and concurs in part in a separate opinion.
DENNIS JACOBS, Chief Judge:
Plaintiff Edith Windsor sued as surviving spouse of a same-sex couple that was married in Canada in 2007 and was resident in New York at the time of her spouse’s death in 2009. Windsor was denied the benefit of the spousal deduction for federal estate taxes under 26 U.S.C. § 2056(A) solely because Section 3 of the Defense of Marriage Act (“DOMA”), 1 U.S.C. § 7, defines the words “marriage” and “spouse” in federal law in a way that bars the Internal Revenue Service from recognizing Windsor as a spouse or the couple as married. The text of § 3 is as follows:
In 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” *176 means only a legal union between one man and one woman as husband and wife, the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.
1 U.S.C. § 7. At issue is Windsor’s claim for a refund in the amount of $363,053, which turns on the constitutionality of that section of federal law.
For the reasons that follow we hold that:
I. Windsor has standing in this action because we predict that New York, which did not permit same-sex marriage to be licensed until 2011, would nevertheless have recognized Windsor and Thea Clara Spyer as married at the time of Spyer’s death in 2009, so that Windsor was a surviving spouse under New York law.
II. Windsor’s suit is not foreclosed by Baker v. Nelson, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972), which held that the use of the traditional definition of marriage for a state’s own regulation of marriage status did not violate equal protection.
III. Section 3 of DOMA is subject to intermediate

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scrutiny under the factors enumerated in City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985), and other cases.
IV. The statute does not withstand that review.
* * *
On June 6, 2012, the United States District Court for the Southern District of New York (Jones, J.) granted summary judgment in favor of Windsor in a thorough opinion. Windsor v. United States, 833 F.Supp.2d 394 (S.D.N.Y.2012). The court ruled that Section 3 of DOMA violated the equal protection because there was no rational basis to support it. Id. at 406. “We review a district court’s grant of summary judgment de novo, construing the record in the light most favorable to the nonmoving party.” Church of American Knights of the Ku Klux Klan v. Kerik, 356 F.3d 197, 203 (2d Cir.2004).
A preliminary issue concerning alignment of the parties on appeal has been presented by motion. The United States, initially named as the sole defendant, conducted its defense of the statute in the district court up to a point. On February 23, 2011, three months after suit was filed, the Department of Justice declined to defend the Act thereafter, and members of Congress took steps to support it. The Bipartisan Legal Advisory Group of the United States House of Representatives (“BLAG”) retained counsel and since then has taken the laboring oar in defense of the statute. The United States remained active as a party, switching sides to advocate that the statute be ruled unconstitutional.
Following the district court’s decision, BLAG filed a notice of appeal, as did the United States in its role as nominal defendant. BLAG moved this Court at the outset to strike the notice of appeal filed by the United States and to realign the appellate parties to reflect that the United States prevailed in the result it advocated in the district court. The motion is denied. Notwithstanding the withdrawal of its advocacy, the United States continues to enforce Section 3 of DOMA, which is indeed why Windsor does not have her money. The constitutionality of the statute will have a considerable impact on many operations of the United States. See INS v. Chadha, 462 U.S. 919, 931, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983) (“When an agency of the United States is a party to a case in which the Act of Congress it administers is held unconstitutional, it is an aggrieved party for purposes of taking an appeal.... The agency’s status as an aggrieved party ... is not altered by the *177 fact that the Executive may agree with the holding that the statute in question is unconstitutional.”).
4

DISCUSSION
I
For the purpose of federal estate taxes, the law of the state of domicile ordinarily determines whether two persons were married at the time of death. Eccles v. Comm’r., 19 T.C. 1049, 1051, 1053–54 (1953); Rev. Rul. 58–66, 1958–1 C.B. 60 (“The marital status of individuals as determined under state law is recognized in the administration of the Federal income tax laws.”). At the time of Spyer’s death in 2009, New York did not yet license same-sex marriage itself. A separate question— decisive for standing in this case—is whether in 2009 New York recognized same-sex marriages entered into in other jurisdictions. That question was presented to the New York Court of Appeals in Godfrey v. Spano, 13 N.Y.3d 358, 892 N.Y.S.2d 272, 920 N.E.2d 328 (2009). However, the court was able to resolve that case on other grounds, finding “it unnecessary to reach defendants’ argument that New York’s common-law marriage recognition rule is a proper basis for the challenged recognition of out-of-state same-sex marriages.” Id. at 377, 892 N.Y.S.2d 272, 920 N.E.2d 328.
When we are faced with a question of New York law that is decisive but unsettled, we may “predict” what the state’s law is, consulting any rulings of its intermediate appellate courts and trial courts, or we may certify the question to the New York Court of Appeals. See State Farm Mut. Auto. Ins. Co. v. Mallela, 372 F.3d 500, 505 (2d Cir.2004). BLAG urges that we certify this question, observing that this is an option that we have and that the district court did not. We decline to certify.
First, the Court of Appeals has signaled its disinclination to decide this very question. When it elected to decide Godfrey on an alternative sufficient ground, the Court of Appeals expressed a preference and expectation that the issue would be decided by the New York legislature: “[w]e ... hope that the Legislature will address this controversy.” Godfrey, 13 N.Y.3d at 377, 892 N.Y.S.2d 272, 920 N.E.2d 328. We hesitate to serve up to the Court of Appeals a question that it is reluctant to answer for a prudential reason.

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Second, rulings of New York’s intermediate appellate courts are useful and unanimous on this issue. It is a “well-established principle that the ruling of an intermediate appellate state court is a datum for ascertaining state law which is not to be disregarded by a federal court unless it is convinced by other persuasive data that the highest court of the state would decide otherwise.” Statharos v. New York City Taxi and Limousine Comm’n., 198 F.3d 317, 321 (2d Cir.1999) (internal quotation marks and ellipsis omitted). Three of New York’s four appellate divisions have concluded that New York recognized foreign same-sex marriages before the state passed its marriage statute in 2011. See In re Estate of Ranftle, 81 A.D.3d 566, 917 N.Y.S.2d 195 (1st Dep’t 2011) (Windsor’s home Department, recognizing a 2008 Canadian marriage); Lewis v. N.Y. State Dep’t. of Civil Serv., 60 A.D.3d 216, 872 N.Y.S.2d 578 (3rd Dep’t 2009), aff’d on other grounds sub nom., Godfrey, 13 N.Y.3d 358, 892 N.Y.S.2d 272, 920 N.E.2d 328; Martinez v. Cnty. of Monroe, 50 A.D.3d 189, 850 N.Y.S.2d 740 (4th Dep’t 2008). Two of these cases, Lewis and Martinez, were decided before Spyer died on February 5, 2009. Given the consistent view of these decisions, we see no need to *178 seek guidance here. Because Windsor’s marriage would have been recognized under New York law at the time of Spyer’s death, she has standing.
II
In Baker v. Nelson, an appeal from a Minnesota Supreme Court decision finding no right to same-sex marriage, the Supreme Court issued a summary dismissal “for want of a substantial federal question.” 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972). The Minnesota Supreme Court had held that “[t]he equal protection clause of the Fourteenth Amendment, like the due process clause, is not offended by the state’s classification of persons authorized to marry.” Baker v. Nelson, 291 Minn. 310, 313, 191 N.W.2d 185 (Minn.1971). According to BLAG, Baker compels the inference that Congress may prohibit samesex marriage in the same way under federal law without offending the Equal Protection Clause. We disagree.
“The Supreme Court has long recognized that the precedential value of a summary dismissal is limited to ‘the precise issues presented and necessarily decided by’ the dismissal.” Alexander v. Cahill, 598 F.3d 79, 89 n. 7 (2d Cir.2010) (quoting Mandel v. Bradley, 432 U.S. 173, 176, 97 S.Ct. 2238, 53 L.Ed.2d 199 (1977)). The question
5

whether the federal government may constitutionally define marriage as it does in Section 3 of DOMA is sufficiently distinct from the question in Baker: whether same-sex marriage may be constitutionally restricted by the states. After all, Windsor and Spyer were actually married in this case, at least in the eye of New York, where they lived. Other courts have likewise concluded that Baker does not control equal protection review of DOMA for these reasons.1
Even if Baker might have had resonance for Windsor’s case in 1971, it does not today. “ ‘[I]nferior federal courts had best adhere to the view that if the Court has branded a question as unsubstantial, it remains so except when doctrinal developments indicate otherwise.’ ” Hicks v. Miranda, 422 U.S. 332, 344, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975) (quoting Port Auth. Bondholders Protective Comm. v. Port of N.Y. Auth., 387 F.2d 259, 263 n. 3 (2d Cir.1967) (Friendly, J.)) (emphasis added). In the forty years after Baker, there have *179 been manifold changes to the Supreme Court’s equal protection jurisprudence.
When Baker was decided in 1971, “intermediate scrutiny” was not yet in the Court’s vernacular. See Craig v. Boren, 429 U.S. 190, 218, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976) (Rehnquist, J., dissenting) (coining “intermediate level scrutiny”). Classifications based on illegitimacy and sex were not yet deemed quasi-suspect. See Lalli v. Lalli, 439 U.S. 259, 264–65, 275, 99 S.Ct. 518, 58 L.Ed.2d 503 (1978) (applying intermediate scrutiny to a classification based on illegitimacy, and describing how heightened scrutiny had been used for such classifications starting in 1976); Frontiero v. Richardson, 411 U.S. 677, 682, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973) (plurality opinion) (identifying sex as a suspect class); Boren, 429 U.S. at 197–98, 97 S.Ct. 451 (applying intermediate scrutiny to a classification based on sex); United States v. Virginia, 518 U.S. 515, 575, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996) (Scalia, J., dissenting) (summarizing that sex-based classifications were analyzed with rational basis review before the 1970’s).2 The Court had not yet ruled that “a classification of [homosexuals] undertaken for its own sake” actually lacked a rational basis. Romer v. Evans, 517 U.S. 620, 635, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996). And, in 1971, the government could lawfully “demean [homosexuals’] existence or control their destiny by making their private sexual conduct a crime.” Lawrence v. Texas, 539 U.S. 558, 574, 578, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) (noting that there was a “tenable” equal protection argument against such laws, but choosing instead to overturn Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986)). These doctrinal changes constitute another reason why Baker does not foreclose our disposition of this case.

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The First Circuit has suggested in dicta that recognition of a new suspect classification in this context would “imply[ ] an overruling of Baker.” See Massachusetts, 682 F.3d at 9. We disagree for two reasons that the First Circuit did not discuss. First, when it comes to marriage, legitimate regulatory interests of a state differ from those of the federal government. Regulation of marriage is “an area that has long been regarded as a virtually exclusive province of the States.” Sosna v. Iowa, 419 U.S. 393, 404, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975). It has for very long been settled that “[t]he State ... has [the] absolute right to prescribe the conditions upon which the marriage relation between its own citizens shall be created, and the causes for which it may be dissolved.” Pennoyer v. Neff, 95 U.S. 714, 734–35, 24 L.Ed. 565 (1878), overruled on other grounds by Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977). Therefore, our heightened scrutiny analysis of DOMA’s marital classification under federal law is distinct from the analysis necessary to determine whether the marital classification of a state would survive such scrutiny.
Second, the Supreme Court’s decision to apply rational basis review in Romer does not imply to us a refusal to recognize homosexuals as a quasi-suspect class. See Massachusetts, 682 F.3d at 9. The litigants in Romer had abandoned their quasi-suspect argument after the trial court decision. See Romer, 517 U.S. at 640 n. 1, 116 S.Ct. 1620 (Scalia, J., dissenting). We are satisfied, for these reasons, that Baker has no bearing on this case.
*180 III
“In deciding an equal protection challenge to a statute that classifies persons for the purpose of receiving [federal] benefits, we are required, so long as the classifications are not suspect or quasi-suspect and do not infringe fundamental constitutional rights, to uphold the legislation if it bears a rational relationship to a legitimate governmental objective.” Thomas v. Sullivan, 922 F.2d 132, 136 (2d Cir.1990). Of course, “ ‘a bare ... desire to harm a politically unpopular group cannot constitute a legitimate government interest.’ ” Romer v. Evans, 517 U.S. 620, 634–35, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996) (quoting Dep’t of Agric. v. Moreno, 413 U.S. 528, 534, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973)). So while rational basis review is indulgent and respectful, it is not meant to be “toothless.” Schweiker v. Wilson, 450 U.S. 221, 234, 101 S.Ct. 1074, 67 L.Ed.2d 186 (1981) (quoting
6

Mathews v. Lucas, 427 U.S. 495, 510, 96 S.Ct. 2755, 49 L.Ed.2d 651 (1976)).
The district court ruled that DOMA violated the Equal Protection Clause for want of a rational basis. Windsor, 833 F.Supp.2d at 406. But the existence of a rational basis for Section 3 of DOMA is closely argued. BLAG and its amici proffer several justifications that alone or in tandem are said to constitute sufficient reason for the enactment. Among these reasons are protection of the fisc, uniform administration of federal law notwithstanding recognition of same-sex marriage in some states but not others, the protection of traditional marriage generally, and the encouragement of “responsible” procreation.
Windsor and her amici vigorously argue that DOMA is not rationally related to any of these goals. Rational basis review places the burden of persuasion on the party challenging a law, who must disprove “ ‘every conceivable basis which might support it.’ ” Heller v. Doe, 509 U.S. 312, 320, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993) (quoting Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364, 93 S.Ct. 1001, 35 L.Ed.2d 351 (1973)). So a party urging the absence of any rational basis takes up a heavy load. That would seem to be true in this case—the law was passed by overwhelming bipartisan majorities in both houses of Congress; it has varying impact on more than a thousand federal laws; and the definition of marriage it affirms has been longsupported and encouraged.
On the other hand, several courts have read the Supreme Court’s recent cases in this area to suggest that rational basis review should be more demanding when there are “historic patterns of disadvantage suffered by the group adversely affected by the statute.” See Massachusetts, 682 F.3d at 10–11; Able v. U.S., 155 F.3d 628, 634 (2d Cir.1998); United States v. Then, 56 F.3d 464, 468 (2d Cir.1995) (Calabresi, J., concurring). Proceeding along those lines, the district court in this case and the First Circuit in Massachusetts both adopted more exacting rational basis review for DOMA. See Massachusetts, 682 F.3d at 11 (describing its “more careful assessment”); Windsor, 833 F.Supp.2d at 402 (noting that “rational basis analysis can vary by context”). At argument, counsel for BLAG wittily characterized this form of analysis as “rational basis plus or intermediate scrutiny minus.” Oral Arg. Tr. 16:10–12.
The Supreme Court has not expressly sanctioned such modulation in the level of rational basis review; discussion pro and con has largely been confined to concurring *181 and dissenting opinions.3 We think it is safe to say that there is some doctrinal instability in this

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area.
Fortunately, no permutation of rational basis review is needed if heightened scrutiny is available, as it is in this case. We therefore decline to join issue with the dissent, which explains why Section 3 of DOMA may withstand rational basis review.
Instead, we conclude that review of Section 3 of DOMA requires heightened scrutiny. The Supreme Court uses certain factors to decide whether a new classification qualifies as a quasi-suspect class. They include: A) whether the class has been historically “subjected to discrimination,” Bowen v. Gilliard, 483 U.S. 587, 602, 107 S.Ct. 3008, 97 L.Ed.2d 485 (1987); B) whether the class has a defining characteristic that “frequently bears [a] relation to ability to perform or contribute to society,” Cleburne, 473 U.S. at 440–41, 105 S.Ct. 3249; C) whether the class exhibits “obvious, immutable, or distinguishing characteristics that define them as a discrete group;” Bowen, 483 U.S. at 602, 107 S.Ct. 3008; and D) whether the class is “a minority or politically powerless.” Id. Immutability and lack of political power are not strictly necessary factors to identify a suspect class. See Cleburne, 473 U.S. at 442 n. 10, 105 S.Ct. 3249 (“ ‘[T]here’s not much left of the immutability theory, is there?’ ”) (quoting J. Ely, Democracy and Distrust 150 (1980)); Cleburne, 473 U.S. at 472 n. 24, 105 S.Ct. 3249 (Marshall, J., concurring in part and dissenting in part) (“The ‘political powerlessness’ of a group may be relevant, but that factor is neither necessary, as the gender cases demonstrate, nor sufficient, as the example of minors illustrates.”); Nyquist v. Mauclet, 432 U.S. 1, 9 n. 11, 97 S.Ct. 2120, 53 L.Ed.2d 63 (1977) (rejecting the argument that alienage did not deserve strict scrutiny because it was not immutable); see also Pedersen, 881 F.Supp.2d at ––––, 2012 WL 3113883, at *13; Golinski, 824 F.Supp.2d at 983; Kerrigan v. Comm’r. of Pub. Health, 289 Conn. 135, 167–68, 957 A.2d 407 (2008). Nevertheless, immutability and political power are indicative, and we consider them here. In this case, all four factors justify heightened scrutiny: A) homosexuals as a group have historically endured persecution and discrimination; *182 B) homosexuality has no relation to aptitude or ability to contribute to society; C) homosexuals are a discernible group with non-obvious distinguishing characteristics, especially in the subset of those who enter same-sex marriages; and D) the class remains a politically weakened minority.
A) History of Discrimination
7

It is easy to conclude that homosexuals have suffered a history of discrimination. Windsor and several amici labor to establish and document this history, but we think it is not much in debate. Perhaps the most telling proof of animus and discrimination against homosexuals in this country is that, for many years and in many states, homosexual conduct was criminal. These laws had the imprimatur of the Supreme Court. See Bowers, 478 U.S. at 196, 106 S.Ct. 2841; see also Lawrence, 539 U.S. at 578, 123 S.Ct. 2472 (noting that such laws “demean[ed homosexuals’] existence [and] control[led] their destiny”).
BLAG argues that discrimination against homosexuals differs from that against racial minorities and women because “homosexuals as a class have never been politically disenfranchised.” True, but the difference is not decisive. Citizens born out of wedlock have never been inhibited in voting; yet the Supreme Court has applied intermediate scrutiny in cases of illegitimacy. See generally Lalli v. Lalli, 439 U.S. 259, 99 S.Ct. 518, 58 L.Ed.2d 503 (1978). Second, BLAG argues that, unlike protected classes, homosexuals have not “suffered discrimination for longer than history has been recorded.” But whether such discrimination existed in Babylon is neither here nor there. BLAG concedes that homosexuals have endured discrimination in this country since at least the 1920s. Ninety years of discrimination is entirely sufficient to document a “history of discrimination.” See Pedersen, 881 F.Supp.2d at ––––, 2012 WL 3113883, at *21 (summarizing that “the majority of cases which have meaningfully considered the question [have] likewise held that homosexuals as a class have experienced a long history of discrimination”).
B) Relation to Ability Also easy to decide in this case is whether the class characteristic “frequently bears [a] relation to ability to perform or contribute to society.” Cleburne, 473 U.S. at 440–41, 105 S.Ct. 3249; see Frontiero, 411 U.S. at 686, 93 S.Ct. 1764 (“[W]hat differentiates sex from such nonsuspect statuses as intelligence or physical disability, and aligns it with the recognized suspect criteria, is that the sex characteristic frequently bears no relation to ability to perform or contribute to society.”). In Cleburne, the Supreme Court ruled that heightened scrutiny was inappropriate because “those who are mentally retarded have a reduced ability to cope with and function in the everyday world.” 473 U.S. at 442, 105 S.Ct. 3249. The Court employed similar reasoning with respect to age classifications, finding that heightened scrutiny was not

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appropriate for mandatory retirement laws because “physical ability generally declines with age” and such requirements reasonably “serve[d] to remove from ... service those whose fitness for uniformed work presumptively has diminished with age.” Murgia, 427 U.S. at 316, 96 S.Ct. 2562.
There is no such impairment here. There are some distinguishing characteristics, such as age or mental handicap, that may arguably inhibit an individual’s ability to contribute to society, at least in some respect. But homosexuality is not one of them. The aversion homosexuals experience *183 has nothing to do with aptitude or performance.
We do not understand BLAG to argue otherwise. Rather, BLAG suggests that the proper consideration is whether “the classification turns on ‘distinguishing characteristics relevant to interests the State has the authority to implement,’ ” quoting Cleburne, 473 U.S. at 441, 105 S.Ct. 3249. Thus, BLAG urges that same-sex couples have a diminished ability to discharge family roles in procreation and the raising of children. BLAG cites no precedential application of that standard to support its interpretation, and it is inconsistent with actual cases. See, e.g., Frontiero, 411 U.S. at 686, 93 S.Ct. 1764 (distinguishing that sex, unlike intelligence, has no bearing on one’s general ability to contribute to society). In any event, the abilities or inabilities cited by BLAG bear upon whether the law withstands scrutiny (the second step of analysis) rather than upon the level of scrutiny to apply. Cf. Clark v. Jeter, 486 U.S. 456, 461, 108 S.Ct. 1910, 100 L.Ed.2d 465 (1988) (defining the test for intermediate scrutiny as whether a classification is “substantially related to an important government interest”).
C) Distinguishing Characteristic We conclude that homosexuality is a sufficiently discernible characteristic to define a discrete minority class. See Rowland v. Mad River Local School Dist., Montgomery County, Ohio, 470 U.S. 1009, 1014, 105 S.Ct. 1373, 84 L.Ed.2d 392 (1985) (Brennan, J., dissenting from denial of certiorari) (“[H]omosexuals constitute a significant and insular minority of this country’s population.”).
This consideration is often couched in terms of “immutability.” BLAG and its amici argue that sexual orientation is not necessarily fixed, suggesting that it may change over time, range along a continuum, and overlap
8

(for bisexuals). But the test is broader: whether there are “obvious, immutable, or distinguishing characteristics that define ... a discrete group.” See Bowen, 483 U.S. at 602, 107 S.Ct. 3008 (emphasis added). No “obvious badge” is necessary. See Mathews v. Lucas, 427 U.S. 495, 506, 96 S.Ct. 2755, 49 L.Ed.2d 651 (1976). Classifications based on alienage, illegitimacy, and national origin are all subject to heightened scrutiny, Cleburne, 473 U.S. at 440–41, 105 S.Ct. 3249, even though these characteristics do not declare themselves, and often may be disclosed or suppressed as a matter of preference.4 What seems to matter is whether the characteristic of the class calls down discrimination when it is manifest.
Thus a person of illegitimate birth may keep that status private, and ensure that no outward sign discloses the status in *184 social settings or in the workplace, or on the subway. But when such a person applies for Social Security benefits on the death of a parent (for example), the illegitimate status becomes manifest. The characteristic is necessarily revealed in order to exercise a legal right. Similarly, sexual preference is necessarily disclosed when two persons of the same sex apply for a marriage license (as they are legally permitted to do in New York), or when a surviving spouse of a same-sex marriage seeks the benefit of the spousal deduction (as Windsor does here).
BLAG argues that a classification based on sexual orientation would be more “amorphous” than discrete. It may be that the category exceeds the number of persons whose sexual orientation is outwardly “obvious, immutable, or distinguishing,” and who thereby predictably undergo discrimination. But that is surely also true of illegitimacy and national origin. Again, what matters here is whether the characteristic invites discrimination when it is manifest.
The class affected by Section 3 of DOMA is composed entirely of persons of the same sex who have married each other. Such persons constitute a subset of the larger category of homosexuals; but as counsel for BLAG conceded at argument, there is nothing amorphous, capricious, or tentative about their sexual orientation. Oral Arg. Tr. 12:11–14. Married same-sex couples like Windsor and Spyer are the population most visible to the law, and they are foremost in mind when reviewing DOMA’s constitutionality.
We therefore conclude that sexual orientation is a sufficiently distinguishing characteristic to identify the discrete minority class of homosexuals.

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D) Political Power Finally, we consider whether homosexuals are a politically powerless minority. See Bowen, 483 U.S. at 602, 107 S.Ct. 3008. Without political power, minorities may be unable to protect themselves from discrimination at the hands of the majoritarian political process. We conclude that homosexuals are still significantly encumbered in this respect.
The question is not whether homosexuals have achieved political successes over the years; they clearly have. The question is whether they have the strength to politically protect themselves from wrongful discrimination. When the Supreme Court ruled that sex-based classifications were subject to heightened scrutiny in 1973, the Court acknowledged that women had already achieved major political victories. See Frontiero, 411 U.S. at 685, 93 S.Ct. 1764. The Nineteenth Amendment had been ratified in 1920, and Title VII had already outlawed sex-based employment. See 78 Stat. 253. The Court was persuaded nevertheless that women still lacked adequate political power, in part because they were “vastly underrepresented in this Nation’s decisionmaking councils,” including the presidency, the Supreme Court, and the legislature. Frontiero, 411 U.S. at 686 n. 17, 93 S.Ct. 1764.
There are parallels between the status of women at the time of Frontiero and homosexuals today: their position “has improved markedly in recent decades,” but they still “face pervasive, although at times more subtle, discrimination ... in the political arena.” Frontiero, 411 U.S. at 685–86, 93 S.Ct. 1764. It is difficult to say whether homosexuals are “under-represented” in positions of power and authority without knowing their number relative to the heterosexual population. But it is safe to say that the seemingly small number of acknowledged homosexuals so situated is attributable either to a hostility that excludes *185 them or to a hostility that keeps their sexual preference private— which, for our purposes, amounts to much the same thing. Moreover, the same considerations can be expected to suppress some degree of political activity by inhibiting the kind of open association that advances political agendas. See Rowland, 470 U.S. at 1014, 105 S.Ct. 1373 (Brennan, J., dissenting from denial of certiorari) (“Because of the immediate and severe opprobrium often manifested against homosexuals once so identified publicly, members of this group are particularly powerless to pursue their rights openly in the political arena.”).
In sum, homosexuals are not in a position to adequately
9

protect themselves from the discriminatory wishes of the majoritarian public.
* * *
Analysis of these four factors supports our conclusion that homosexuals compose a class that is subject to heightened scrutiny. We further conclude that the class is quasi-suspect (rather than suspect) based on the weight of the factors and on analogy to the classifications recognized as suspect and quasi-suspect. While homosexuals have been the target of significant and longstanding discrimination in public and private spheres, this mistreatment “is not sufficient to require ‘our most exacting scrutiny.’ ” Trimble v. Gordon, 430 U.S. 762, 767, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977) (quoting Mathews v. Lucas, 427 U.S. 495, 506, 96 S.Ct. 2755, 49 L.Ed.2d 651 (1976)).
The next step is to determine whether DOMA survives intermediate scrutiny review.
IV
To withstand intermediate scrutiny, a classification must be “substantially related to an important government interest.” Clark v. Jeter, 486 U.S. 456, 461, 108 S.Ct. 1910, 100 L.Ed.2d 465 (1988). “Substantially related” means that the explanation must be “ ‘exceedingly persuasive.’ ” United States v. Virginia, 518 U.S. 515, 533, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996) (quoting Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724, 102 S.Ct. 3331, 73 L.Ed.2d 1090 (1982)). “The justification must be genuine, not hypothesized or invented post hoc in response to litigation.” Id.
BLAG advances two primary arguments for why Congress enacted DOMA. First, it cites “unique federal interests,” which include maintaining a consistent federal definition of marriage, protecting the fisc, and avoiding “the unknown consequences of a novel redefinition of a foundational social institution.” Second, BLAG argues that Congress enacted the statute to encourage “responsible procreation.” At argument, BLAG’s counsel all but conceded that these reasons for enacting DOMA may not withstand intermediate scrutiny. Oral Arg. Tr. 16:24–17:6.

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A) Maintaining a “Uniform Definition” of Marriage Statements in the Congressional Record express an intent to enforce uniform eligibility for federal marital benefits by insuring that same-sex couples receive—or lose—the same federal benefits across all states.5 However, the emphasis on uniformity is suspicious because Congress and the Supreme Court have historically deferred to state domestic relations laws, irrespective of their variations.
*186 To the extent that there has ever been “uniform” or “consistent” rule in federal law concerning marriage, it is that marriage is “a virtually exclusive province of the States.” Sosna, 419 U.S. at 404, 95 S.Ct. 553. As the Supreme Court has emphasized, “the states, at the time of the adoption of the Constitution, possessed full power over the subject of marriage and divorce.... [T]he Constitution delegated no authority to the Government of the United States on the subject of marriage and divorce.” Haddock v. Haddock, 201 U.S. 562, 575, 26 S.Ct. 525, 50 L.Ed. 867 (1906) (emphasis added), overruled on other grounds by Williams v. State of North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279 (1942). DOMA was therefore an unprecedented intrusion “into an area of traditional state regulation.” Massachusetts, 682 F.3d at 13. This is a reason to look upon Section 3 of DOMA with a cold eye. “The absence of precedent ... is itself instructive; ‘[d]iscriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision.’ ” Romer v. Evans, 517 U.S. 620, 633, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996) (quoting Louisville Gas & Elec. Co. v. Coleman, 277 U.S. 32, 37–38, 48 S.Ct. 423, 72 L.Ed. 770 (1928)).
Moreover, DOMA’s sweep arguably creates more discord and anomaly than uniformity, as many amici observe. Because DOMA defined only a single aspect of domestic relations law, it left standing all other inconsistencies in the laws of the states, such as minimum age, consanguinity, divorce, and paternity. See Br. of Amici Curiae Family Law Professors Supporting Petitioner at 12–13 (noting that “the federal government has always accepted the states’ different ways of defining parental status” and offering numerous examples of critical differences in state parental policies).
The uniformity rationale is further undermined by inefficiencies that it creates. As a district court in this Circuit found, it was simpler—and more consistent—for the federal government to ask whether a couple was married under the law of the state of domicile, rather than adding “an additional criterion, requiring the federal government to identify and exclude all same-sex marital unions from federal recognition.” Pedersen, 881
10

F.Supp.2d at ––––, 2012 WL 3113883, at *48; see Golinski, 824 F.Supp.2d at 1001–02 (“The passage of DOMA actually undermined administrative consistency by requiring that the federal government, for the first time, discern which state definitions of marriage are entitled to federal recognition and which are not.”).
Because DOMA is an unprecedented breach of longstanding deference to federalism that singles out same-sex marriage as the only inconsistency (among many) in state law that requires a federal rule to achieve uniformity, the rationale premised on uniformity is not an exceedingly persuasive justification for DOMA.
B) Protecting the Fisc Another professed goal of Congress is to save government resources by limiting the beneficiaries of government marital benefits. H.R.Rep. No. 104–664, at 18 (1996), reprinted in 1996 U.S.C.C.A.N. 2905, 2922. Fiscal prudence is undoubtedly an important government interest. Windsor and certain amici contest whether the measure will achieve a net benefit to the Treasury; but in matters of the federal budget, Congress has the prerogative to err (if error it is), and cannot be expected to prophesy the future accurately. But the Supreme Court has held that “[t]he saving of welfare costs cannot justify an otherwise invidious classification.” Graham v. Richardson, *187 403 U.S. 365, 375, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971) (quotation marks omitted). As the district court observed, “excluding any arbitrarily chosen group of individuals from a government program conserves government resources.” Windsor, 833 F.Supp.2d at 406 (quotation marks).
Citing Bowen v. Owens, 476 U.S. 340, 348, 106 S.Ct. 1881, 90 L.Ed.2d 316 (1986), BLAG draws the distinction that DOMA did not withdraw benefits from same-sex spouses; since DOMA was enacted before same-sex marriage was permitted in any state, DOMA operated to prevent the extension of benefits to people who never enjoyed them. However, Bowen was decided on rational basis grounds and did not involve an invidious classification. Id. at 349–50, 106 S.Ct. 1881. Moreover, DOMA is properly considered a benefit withdrawal in the sense that it functionally eliminated longstanding federal recognition of all marriages that are properly ratified under state law—and the federal benefits (and detriments) that come with that recognition.
Furthermore, DOMA is so broad, touching more than a thousand federal laws, that it is not substantially related to

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fiscal matters. As amicus Citizens for Responsibility and Ethics in Washington demonstrates, DOMA impairs a number of federal laws (involving bankruptcy and conflict-of-interest) that have nothing to do with the public fisc. See Br. of Amicus Curiae Citizens for Responsibility and Ethics in Washington at 5–11, 18–23. DOMA transcends a legislative intent to conserve public resources.
For these reasons, DOMA is not substantially related to the important government interest of protecting the fisc.
C) Preserving a Traditional Understanding of Marriage Congress undertook to justify DOMA as a measure for preserving traditional marriage as an institution. 150 Cong. Rec. 14951. But “[a]ncient lineage of a legal concept does not give [a law] immunity from attack for lacking a rational basis.” Heller, 509 U.S. at 326, 113 S.Ct. 2637. A fortiori, tradition is hard to justify as meeting the more demanding test of having a substantial relation to an important government interest. Similar appeals to tradition were made and rejected in litigation concerning anti-sodomy laws. See Lawrence, 539 U.S. at 577–78, 123 S.Ct. 2472 (“ ‘[T]he fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack.’ ”) (quoting Bowers, 478 U.S. at 216, 106 S.Ct. 2841 (Stevens, J., dissenting)) (emphasis added).
Even if preserving tradition were in itself an important goal, DOMA is not a means to achieve it. As the district court found: “because the decision of whether same-sex couples can marry is left to the states, DOMA does not, strictly speaking, ‘preserve’ the institution of marriage as one between a man and a woman.” Windsor, 833 F.Supp.2d at 403.
Preservation of a traditional understanding of marriage therefore is not an exceedingly persuasive justification for DOMA.
D) Encouraging Responsible Procreation Finally, BLAG presents three related reasons why
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DOMA advances the goals of “responsible childrearing”: DOMA subsidizes procreation because *188 only opposite-sex couples can procreate “naturally”; DOMA subsidizes biological parenting (for more or less the same reason); and DOMA facilitates the optimal parenting arrangement of a mother and a father. We agree that promotion of procreation can be an important government objective. But we do not see how DOMA is substantially related to it.
All three proffered rationales have the same defect: they are cast as incentives for heterosexual couples, incentives that DOMA does not affect in any way. DOMA does not provide any incremental reason for opposite-sex couples to engage in “responsible procreation.”6 Incentives for opposite-sex couples to marry and procreate (or not) were the same after DOMA was enacted as they were before.7 Other courts have likewise been unable to find even a rational connection between DOMA and encouragement of responsible procreation and child-rearing. See Massachusetts, 682 F.3d at 14–15 (underscoring the “lack of any demonstrated connection between DOMA’s treatment of same-sex couples and its asserted goal of strengthening the bonds and benefits to society of heterosexual marriage”) (citations omitted); Windsor, 833 F.Supp.2d at 404–05; Pedersen, 881 F.Supp.2d at –––– – ––––, 2012 WL 3113883, at *40–43.
DOMA is therefore not substantially related to the important government interest of encouraging procreation.
* * *
DOMA’s classification of same-sex spouses was not substantially related to an important government interest. Accordingly, we hold that Section 3 of DOMA violates equal protection and is therefore unconstitutional.
V
Our straightforward legal analysis sidesteps the fair point that same-sex marriage is unknown to history and tradition. But law (federal or state) is not concerned with holy matrimony. Government deals with marriage as a civil status—however fundamental—and New York has elected to extend that status to same-sex couples. A state may enforce and dissolve a couple’s marriage, but it cannot sanctify or bless it. For that, the pair must go next door.

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CONCLUSION
For the foregoing reasons, we AFFIRM the grant of Windsor’s motion for summary judgment.
STRAUB, Circuit Judge, dissenting in part and concurring in part:
INTRODUCTION
I respectfully dissent in part and concur in part.
I concur with those parts of the majority opinion that (1) deny BLAG’s motion to dismiss the appeal taken by the United States, and (2) decline to certify to the New York Court of Appeals the question of whether the State of New York recognized Windsor’s marriage at the time of her wife’s death. For the reasons that follow, I dissent from the majority’s holding that DOMA is unconstitutional under the Fifth Amendment’s equal protection guarantee.
*189 The majority holds DOMA unconstitutional, a federal law which formalizes the understanding of marriage in the federal context extant in the Congress, the Presidency, and the Judiciary at the time of DOMA’s enactment and, I dare say, throughout our nation’s history. If this understanding is to be changed, I believe it is for the American people to do so.
Forty years ago, the United States Supreme Court was presented with the essentially identical challenge we have here. The then DOMA-like Minnesota law was upheld in that state’s highest court because it found that the right to marry without regard to sex was not a fundamental right and the law’s thrust was not irrational or invidious discrimination. The Supreme Court of Minnesota held that the applicable Minnesota statute defining marriage as a union between a man and a woman did not violate the United States Constitution. Upon their appeal to the United States Supreme Court, the plaintiffs’ jurisdictional statement squarely claimed that Minnesota’s same-sex
12

marriage prohibition violated their equal protection rights. The Supreme Court, in dismissing the appeal for “want of a substantial federal question,” obviously found no constitutional infirmity in that DOMA-like Minnesota law. I am unable to held as it did had it concluded that the Minnesota law was unconstitutional—at a time when it was required to accept the appellate challenge. The Supreme Court made a merits decision, and has never walked away from it or ever suggested that its disposition elided a merits determination on some procedural basis. It has further instructed us that such a disposition, albeit summary, rejects the challenge presented in the jurisdictional statement and is binding on the lower federal courts. And, as recently as 2003, Justice O’Connor reminded us that rational reasons exist to promote the traditional institution of marriage. Baker dictates my decision.
Furthermore, it is argued here that we are to disregard this binding precedent and the traditionally applicable rational basis standard of review and, instead, now create a new type of suspect classification requiring a heightened level of scrutiny in respect of the federal definition of marriage. The Supreme Court has never done so, while reminding us to be wary of creating any new such classification and itself not having created any in decades. I believe it would be imprudent to do so in this case. Eleven of our nation’s federal Circuit Courts of Appeals have not utilized an elevated form of scrutiny as to sexual orientation discrimination. Most recently, the First Circuit went to the extreme of creating a new, increased level of rational basis analysis. This appears to be the first case in which this Court is asked to do the same or more, and the majority is the first to apply intermediate scrutiny to invalidate the federal definition of marriage as between a man and a woman. The discrimination in this case does not involve a recognized suspect or quasi-suspect classification. It is squarely about the preservation of the traditional institution of marriage and its procreation of children. DOMA centers on legitimate state interests that go beyond mere moral disapproval of an excluded group. DOMA’s classification is to be reviewed on the basis of whether it has a rational relation to any legitimate end. Utilizing that standard, I conclude that DOMA is constitutional. The rational basis standard is most deferential to the determinations of the Congress. Such may be conclusory and are not to be tried in the traditional fact-oriented process. The public policy choice set forth in DOMA is to be made by Congress, not the Judiciary. In DOMA, Congress has set the boundaries for marriage—all in keeping with American society’s *190 historical view of a marriage as being between a man and a woman. This is not the first time the Congress has signaled its intentions in various definitions of eligibility

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for federal purposes as to children, marriage, and domestic relations. These have at times conflicted with state laws but the federal law has always prevailed for federal purposes.
The Congress had the benefit of advice from the Department of Justice that DOMA is constitutional. The Congress decided to codify what had always been implicit in federal law. The history of federal legislation in respect of the meaning of marriage or spouse was never even suggested to mean anything other than the lawful union of one man and one woman for all federal purposes. The nation’s traditional understanding was memorialized in DOMA. Congress explicitly sought to recognize for federal purposes the significance of our historical understanding of a mainstream value, joining the biological component of the marriage relationship to the legal responsibility of rearing the offspring of that union. The Congress referenced its intention to sanction, for federal purposes, society’s desire to approve the man and woman long term union as the ideal by which to beget and rear children. Indeed, state high courts—as in New York—have credited their legislature’s rational decisions to promote the welfare of children via opposite-sex marriage laws. Further, Congress has articulated, as another legitimate reason for DOMA, that the federal fisc as well as America’s desired right to equitable definition of marriage, but rather the federal government is entitled to codify a single definition of marriage as historically understood.
The Congress was uniform and consistent. And, it chose not to rush ahead with a redefinition at a time when all the states utilized the traditional definition of marriage. It chose to let the issue evolve within American society. The Congress accomplished its task in a manner which continues to respect the principle of federalism. The states remain free to define marriage as they choose, pursuant to DOMA. And, forty-one of our states continue to define marriage as DOMA does. The totality of the foregoing is sufficient to hold DOMA constitutional under the rational basis standard. Even the majority opinion, while ultimately holding DOMA unconstitutional under a higher level of scrutiny, appears to imply that DOMA passes rational basis review. (Maj. Op. at 180.)
My final observation relates to the Attorney General’s current position. His assertion that sexual orientation is a suspect classification and that DOMA fails to pass strict scrutiny is recently minted, and is contrary to an established body of cases to the contrary. The Attorney General’s position is unprecedented in its departure from the Department of Justice’s long-standing policy of defending federal statutes even if the President disagrees
13

as a matter of policy.
At bottom, the issue here is marriage at the federal level for federal purposes, and not other legitimate interests. The Congress and the President formalized in DOMA, for federal purposes, the basic human condition of joining a man and a woman in a long-term relationship and the only one which is inherently capable of producing another generation of humanity. Whether that understanding is to continue is for the American people to decide via their choices in electing the Congress and the President. It is not for the Judiciary to search for new standards by which to negate a rational expression of the nation via the Congress.
*191 DISCUSSION
I. The Origin and Impact of DOMA
DOMA was enacted in 1996 in response to the possible end to the exclusion of same-sex couples from civil marriage in Hawaii. In Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44 (1993), the Hawaii Supreme Court held that denying same-sex couples the right to marry must be justified under strict scrutiny, and remanded for further proceedings consistent with this determination.1 The House Judiciary Committee’s Report on DOMA (the “House Report”) described Baehr as part of an “orchestrated legal assault being waged against traditional heterosexual marriage.” See H.R.Rep. No. 104–664, at 2– 3 (1996), reprinted in 1996 U.S.C.C.A.N. 2905, 2906–07 (“House Report” or “H. Rep.”).
DOMA has two key provisions. Section 2, the choice-oflaw section, states:
No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is

Windsor v. U.S., 699 F.3d 169 (2012) 110 A.F.T.R.2d 2012-6370, 2012-2 USTC P 60,654
treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.
28 U.S.C. § 1738C. This provision expresses Congress’s desire to prevent a situation where one state would be forced to recognize same-sex marriages performed and recognized in a different state.
Section 3, the definitional section of DOMA, provides:
In 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. This provision articulates Congressional recognition, for federal purposes, that marriage is the union of a man and a woman.
The House Report indicates that several motivations led Congress to pass DOMA. It identifies four “governmental interests advanced by this legislation: (1) defending and nurturing the institution of traditional, heterosexual marriage; (2) defending traditional notions of morality; (3) protecting state sovereignty and democratic selfgovernance; and (4) preserving scarce government resources.” (H. Rep. at 12–18.) The House Report also justifies DOMA as a means to “encourag[e] responsible procreation and child-rearing,” H. Rep. at 13, and as a way to reflect Congress’s “moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo–Christian) morality.” (H. Rep. at 16.)
Given the broad range of federal laws to which marital status is relevant, the consequences of DOMA are farreaching. In addition to preventing a surviving same-sex spouse like Windsor from inheriting money or property free from an estate tax, DOMA prevents same-sex married couples from lessening tax burdens by filing joint
14

federal tax returns, see 26 U.S.C. § 1(a)–(c); prevents the surviving spouse of a same-sex marriage from collecting Social Security survivor benefits, see, e.g., 42 U.S.C. § 402; and prevents federal employees *192 from sharing their health insurance and certain other medical benefits with same-sex spouses. As a result of DOMA, married same-sex couples are deprived of many other, lesserknown rights, benefits, and privileges including, inter alia, benefits relating to intellectual property; housing benefits; veteran’s benefits; immigration entitlements (same-sex spouses are the only legally married spouses of American citizens who can face deportation); employment benefits in the private sector (including sick leave to care for one’s spouse under the Family and Medical Leave Act); and protections relating to domestic and intimate partner crimes and family violence.
In sum, DOMA codifies, for purposes of federal statutes, regulations, and rulings, the understanding of marriage as “only a legal union between one man and one woman as husband and wife,” see 1 U.S.C. § 7, and it reserves to each state the ability to retain that definition as its policy if the state so chooses, or to alter it, as it sees fit. See 28 U.S.C. § 1738C. In enacting DOMA, therefore, Congress (1) maintained the status quo as to the federal definition of marriage for the purposes of federal programs and benefits; and (2) recognized the right of any state to allow gays and lesbians to marry while, at the same time, permitting other states to adhere to their existing understandings of the institution of marriage.
II. Standard of Review
We review a grant of summary judgment de novo. Bank of N.Y. v. First Millennium, Inc., 607 F.3d 905, 914 (2d Cir.2010). Summary judgment is appropriate only if “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). A fact is material “if it ‘might affect the outcome of the suit under the governing law,’ ” and “[a]n issue of fact is ‘genuine’ if ‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’ ” Holtz v. Rockefeller & Co., 258 F.3d 62, 69 (2d Cir.2001) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).
There being no dispute as to the material facts in this matter, I find, as a matter of law, that DOMA is constitutional.

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III. The Precedential Effect of Baker v. Nelson
The majority concludes that Windsor’s claim is not foreclosed by the Supreme Court’s summary dismissal in Baker v. Nelson, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972). In Baker, a same-sex couple seeking the right to marry challenged a Minnesota law that limited marriage to opposite-sex couples on the grounds that it violated due process and equal protection, as it unconstitutionally discriminated on the basis of sex. Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185 (1971). The Minnesota Supreme Court, applying rational basis review, upheld the statute because it found the right to marry without regard to sex was not fundamental, and because classifying who can marry based on sex was not “irrational or invidious discrimination.” Id. at 187. The Court reasoned that “[i]t is unrealistic to think that the original draftsmen of our marriage statutes, which date from territorial days, would have used the term” to mean anything other than “the state of union between persons of the opposite sex.” Id. at 186. In so doing, the Court found support in the 1966 version of Webster’s Third New International Dictionary, the fourth edition of Black’s Law Dictionary, the Book of Genesis, and Skinner v. Oklahoma, which declared that “[m]arriage and procreation are fundamental to *193 the very existence and survival of the race.” 316 U.S. 535, 541, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942) (invalidating Oklahoma’s Habitual Criminal Sterilization Act under the Fourteenth Amendment’s Equal Protection Clause).
The Minnesota Supreme Court rejected petitioners’ reliance on Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), and Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967). The Minnesota Supreme Court held that the privacy right recognized in Griswold was “inherent in the marital relationship,” and that Loving did not militate in favor of petitioners because “Virginia’s antimiscegenation statute ... was invalidated solely on the grounds of its patent racial discrimination.” Id. at 186–87. The Court concluded that in both a “commonsense and in a constitutional sense, there is a clear distinction between a martial restriction based merely upon race and one based upon the fundamental difference in sex.” Id. at 187. The United States Supreme Court summarily dismissed the appeal of the Minnesota Supreme Court’s ruling for “want of a substantial federal question.” Baker, 409 U.S. at 810, 93 S.Ct. 37.
The equal protection guarantee of the Fifth Amendment,
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which applies to the federal government, functions identically to the Equal Protection Clause of the Fourteenth Amendment, which applies to the states. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 217, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995). Therefore, jurisprudence interpreting one applies to the other. It follows that any ruling of the Supreme Court on a Fourteenth Amendment equal protection challenge to the denial of same-sex marriage applies with equal force to an equal protection challenge to the denial of same-sex marriage under the Fifth Amendment.
According to the jurisdictional statement of the appellants in Baker, the case presented, inter alia, the question of “[w]hether appellee’s refusal, pursuant to Minnesota marriage statutes, to sanctify appellants’ marriage because both are of the male sex violates their rights under the equal protection clause of the Fourteenth Amendment.” (JA–695.) The question presented here, by Windsor, can be formulated in a strikingly similar fashion: “Whether Section 3 of the Defense of Marriage Act is consistent with the equal protection component of the Fifth Amendment Due Process Clause.” (DOJ Br. at 2.)
Baker is a disposition on the merits, not a mere denial of certiorari, Hicks v. Miranda, 422 U.S. 332, 344, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975), and any ruling inconsistent with its terms must be avoided. “[L]ower courts are bound by summary decisions by this Court until such time as the Court informs (them) that (they) are not.” Hicks, 422 U.S. at 344–45, 95 S.Ct. 2281 (internal quotation omitted).
A summary dismissal means that “the Court found that the decision below was correct and that no substantial question of the merits was raised.” E. Gressman, et al., Supreme Court Practice § 5.18, p. 365 (9th ed.2007). See also Roxbury Taxpayers Alliance v. Del. Cnty. Bd. of Supervisors, 80 F.3d 42, 48 (2d Cir.1996) (recognizing dismissal for want of a substantial federal question as “a decision on the merits of the case”); Port Auth. Bondholders Protective Comm. v. Port of N.Y. Auth., 387 F.2d 259, 262 n. 3 (2d Cir.1967) ( “[U]nless and until the Supreme Court should instruct otherwise, inferior federal courts had best adhere to the view that if the Court has branded a question as unsubstantial, it remains so except when doctrinal developments indicate otherwise.”); cf. *194 Doe v. Hodgson, 478 F.2d 537, 539 (2d Cir.1973) (rejecting argument that summary dispositions have “very little precedential significance” and stating that “we are bound by the Supreme Court’s summary affirmances until such time as the Court informs us that we are not”) (internal quotation omitted). Thus, Baker squarely rejected the contention that prohibiting same-sex marriages violated equal protection.2

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Whatever factual differences exist between the challenge to the Minnesota law presented in Baker and Windsor’s challenge to DOMA, they are too attenuated to remove the instant case from the scope of Baker’s precedential effect. Although the facts in this case are not identical to those in Baker, the “precedential value of a dismissal for want of a substantial federal question extends beyond the facts of the particular case to all similar cases.” Wright v. Lane Cnty. Dist. Court, 647 F.2d 940, 941 (9th Cir.1981); see also League of Women Voters of Nassau Cnty. v. Nassau Cnty. Bd. of Supervisors, 737 F.2d 155, 164 (2d Cir.1984) (the court’s “responsibility in gauging [a summary disposition’s] authority ... is to mark out the ‘reach and content’ of that prior disposition”).
The same-sex couple in Baker argued that Minnesota’s exclusion of same-sex couples from the institution of civil marriage violated the Equal Protection Clause because it was discrimination not rationally related to any legitimate governmental interest. Forty years may have passed, but Windsor makes the same claim today (based on, inter alia, similar arguments regarding the over-and underinclusiveness of the limitation on the marriage right vis-ávis the procreation rationale). Whatever differences exist between Windsor’s claim and those advanced in Baker, they are insignificant compared to the central fact that both cases present equal protection challenges to laws prohibiting the recognition of any marriage entered into by two persons of the same sex. Thus, any distinctions do not render DOMA sufficiently different from Minnesota’s marriage law at the time of Baker such that it can be said the issues in this case were not before and decided by the Supreme Court. The relevant facts of this case are substantially similar to those of Baker, which necessarily decided that a state law defining marriage as a union between a man and woman does not violate the Equal Protection Clause. Baker is the last word from the Supreme Court regarding the constitutionality of a state law limiting marriage to opposite-sex couples under the Equal Protection Clause and thus remains binding on this Court, given that the equal protection component of the Fifth Amendment is identical to and coextensive with the Fourteenth Amendment guarantee.
Since Baker holds that states may use the traditional definition of marriage for state purposes without violating equal protection, it necessarily follows that Congress may define marriage the same way for federal purposes without violating equal protection. See Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 870 (8th Cir.2006) (“In the nearly one hundred and fifty years since the Fourteenth Amendment was adopted, to our knowledge no Justice of the Supreme Court has suggested that a state
16

statute or constitutional provision codifying the traditional definition of marriage violates the Equal Protection Clause or any other provision of the *195 United States Constitution.”); McConnell v. Nooner, 547 F.2d 54, 56 (8th Cir.1976) (per curiam) (Baker “constitutes an adjudication on the merits which is binding on the lower federal courts”); Adams v. Howerton, 486 F.Supp. 1119, 1124 (C.D.Cal.1980) (finding Baker controlling in case where same-sex spouse appealed denial of petition with INS to be classified as “immediate relative”), aff’d, 673 F.2d 1036, 1039 n. 2 (9th Cir.1982) (acknowledging precedential nature of Baker ); Wilson v. Ake, 354 F.Supp.2d 1298, 1305 (M.D.Fla.2005) (Baker is “binding precedent” with “dispositive effect” requiring dismissal of equal protection challenge to DOMA).
The correctness of the Baker holding was placed squarely before the Supreme Court in that case’s jurisdictional statement. The Court’s summary dismissal for want of a substantial federal question is therefore a controlling precedent, unless and until re-examined by the Supreme Court. Hicks, 422 U.S. at 343–45, 95 S.Ct. 2281. “The Court neither acknowledges nor holds that other courts should ever conclude that its more recent cases have, by implication, overruled an earlier precedent. Rather, lower courts should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.” Agostini v. Felton, 521 U.S. 203, 207, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997).3
The close resemblance between the issue presented in Baker and the claim advanced by Windsor means that the scope of Baker controls the question raised by this appeal, foreclosing Windsor’s claim. That is, both cases involve the validity of same-sex couples’ deprivation of marriage rights, a question already presented to and adjudicated on the merits by the Supreme Court. In addition, if, as Baker held, denying same-sex couples the right to marry does not violate equal protection, it follows that denying samesex couples a subset of the rights (i.e., federal rights) associated with marriage is also constitutional. This conclusion is inescapable. For the sake of completeness, in the event that there is any doubt that Baker forecloses Windsor’s claim, I now proceed to consider the merits.
IV. Principles of Equal Protection Analysis
“The Due Process Clause of the Fifth Amendment assures every person the equal protection of the laws, ‘which is essentially a direction that all persons similarly situated

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should be treated alike.’ ” Able v. United States, 155 F.3d 628, 631 (2d Cir.1998) (quoting City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985)).
When the subject of unequal treatment is a member of a class that historically has been the object of discrimination, or government *196 conduct employs a classification inter alia, race, alienage, nationality, sex, and illegitimacy—closely associated with inequality, “the Supreme Court has required a higher degree of justification than a rational basis, either strict or intermediate scrutiny. Under the strict scrutiny test the government must demonstrate a compelling need for the different treatment and that the provision in question is narrowly tailored to achieve its objective. Under intermediate scrutiny, the government must at least demonstrate that the classification is substantially related to an important governmental objective.” Id. at 631–32 (internal citations omitted).
Where no suspect classification is employed or fundamental right infringed upon by government conduct, the constitutional guarantee of equal protection is satisfied where a classification bears a rational relationship to an appropriate governmental interest. See Heller v. Doe, 509 U.S. 312, 320, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993). In evaluating whether the asserted purposes of a federal law are rationally related to its ends, we defer to the judgment of Congress. Congressional enactments that do not infringe upon a fundamental right or employ a suspect classification are entitled to “a strong presumption of validity,” and must be sustained if “ ‘there is any reasonably conceivable state of facts that could provide a rational basis for the classification.’ ” Id. at 319–20, 113 S.Ct. 2637 (quoting FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993)). Rational basis review in an equal protection analysis does not authorize “ ‘the judiciary [to] sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines.’ ” Id. at 319, 113 S.Ct. 2096 (quoting New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976)).
Unlike under heightened scrutiny, in a rational basis equal protection analysis courts look to any “conceivable basis” for the challenged law, not limited to those articulated by or even consistent with the rationales offered by the legislature. Beach Commc’ns, 508 U.S. at 312, 113 S.Ct. 2096.4 Those attacking the rationality of a legislative classification have the burden “to negative every conceivable basis which might support it.” Lehnhausen v.
17

Lake Shore Auto Parts Co., 410 U.S. 356, 364, 93 S.Ct. 1001, 35 L.Ed.2d 351 (1973) (internal quotation omitted). “The Constitution presumes that, absent some reason to infer antipathy, even improvident decisions will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted.” Vance v. Bradley, 440 U.S. 93, 97, 99 S.Ct. 939, 59 L.Ed.2d 171 (1979) (footnote omitted). “[A] law will be sustained if it can be said to advance a legitimate government interest, even if the law seems unwise or works to the disadvantage of a particular group, or if the rationale for it seems tenuous.” Romer v. Evans, 517 U.S. 620, 632, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996). Under the rational review framework, where there are “plausible reasons” for Congressional action, a court’s “inquiry is at an end.” U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 179, 101 S.Ct. 453, 66 L.Ed.2d 368 (1980). This standard of review is “a paradigm *197 of judicial restraint.” Beach Commc’ns., 508 U.S. at 314, 113 S.Ct. 2096. “[C]ourts are compelled under rational-basis review to accept a legislature’s generalizations even when there is an imperfect fit between means and ends.” Heller, 509 U.S. at 321, 113 S.Ct. 2637. “Only by faithful adherence to th [e] guiding principle of [restraint in] judicial review of legislation is it possible to preserve to the legislative branch its rightful independence and its ability to function.” Beach Commc’ns, 508 U.S. at 315, 113 S.Ct. 2096 (internal quotation omitted).
Having a conceivable legitimate governmental interest is, alone, not sufficient for rational basis review. To survive rational basis review, a law must also have a rational relationship to the asserted legitimate governmental interest. In assessing the existence of a rational relationship, courts should be guided by the knowledge that rational basis review is “the most relaxed and tolerant form of judicial scrutiny under the Equal Protection Clause.” City of Dallas v. Stanglin, 490 U.S. 19, 26, 109 S.Ct. 1591, 104 L.Ed.2d 18 (1989).
However, even under rational basis review, a law will fail if it seeks to further an illegitimate end. For example, “the accommodation of ... bias or animosity can never serve as a legitimate government interest; mere negative attitudes, or fear, unsubstantiated by factors which are properly cognizable in the circumstances, are not permissible bases for differential treatment by the government.” Able, 155 F.3d at 634 (internal quotations omitted). Laws that single out a certain class of citizens for disfavored legal status “raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.” Romer, 517 U.S. at 633–34, 116 S.Ct. 1620. And such animosity cannot constitute a legitimate

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governmental objective. Dep’t. of Agric. v. Moreno, 413 U.S. 528, 534, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973).
Where the discrimination challenged is motivated both by impermissible purposes (e.g., animus, negative attitudes, malice, fear, the desire to harm a group, moral disapproval, ignorance) and permissible purposes (under rational basis review, virtually any goal not forbidden by the Constitution), the law may still be constitutionally valid. While “negative attitudes,” “fear” or other biases “may often accompany irrational (and therefore unconstitutional) discrimination, their presence alone does not a constitutional violation make.” Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 367, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001).
Because any single valid rationale is sufficient to support DOMA’s constitutionality, I analyze only as many possible interests as necessary to sustain the law. See F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307, 317, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993). I find that several of BLAG’s rationale suffice to satisfy constitutional scrutiny.
V. DOMA Survives Rational Basis Review
The House Report identifies four governmental interests advanced by DOMA: “(1) defending and nurturing the institution of traditional, heterosexual marriage; (2) defending traditional notions of morality; (3) protecting state sovereignty and democratic self-governance; and (4) preserving scarce government resources.” (H. Rep. at 12.)
BLAG contends that DOMA is supported by six rationales, all of which independently justify the legislation under rational basis review. DOMA, it is argued, advances governmental interest in: (1) maintaining a uniform federal definition of marriage, (2) preserving the public fisc and *198 respecting prior legislative judgments, (3) exercising caution, (4) recognizing opposite-sex couples’ unique ability to procreate, (5) incentivizing the raising of children by their biological parents, and (6) encouraging childrearing in a setting with both a mother and a father.
At oral argument, the Department of Justice confirmed that in 1996, in “a couple of different letters,” it indicated to Congress that it believed “courts would uphold section three of DOMA.” (Oral Arg. Tr. 42:8–14.) Specifically, in a letter dated May 14, 1996, the Department of Justice
18

indicated to the Honorable Henry J. Hyde, Chairman of the House Committee on the Judiciary, that “[t]he Department of Justice believes that H.R. 3396 [DOMA] would be sustained as constitutional.” (H. Rep. at 32.) On May 29, 1996, the Department of Justice again advised Congress, in a letter to the Honorable Charles T. Canady, Chairman of the House Subcommittee on the Constitution (Committee on the Judiciary), that DOMA “would be sustained as constitutional if challenged in court, and that it does not raise any legal issues that necessitate further comment by the Department.” (Id. at 32–33.)
The Department of Justice maintained this position until early 2011, defending DOMA against numerous lawsuits in the intervening years. Indeed, from 2009 through early 2011, the Department of Justice took the position that uniformity and a desire to preserve the status quo vis-ávis a federal definition of marriage provided a rationale for DOMA sufficient to sustain the law under rational basis review, which was argued to be the applicable standard of scrutiny. See Office of Pers. Mgmt. Mem. of Law in Supp. of Defs.’ Mot. to Dismiss, Gill v. Office of Pers. Mgmt., No. 09–cv–10309 (JLT), at 16–19 (D.Mass. Sept. 18, 2009) (docket entry no. 21); U.S. Dep’t. of Health and Human Servs. Mem. of P. & A. in Supp. of Defs.’ Mot. to Dismiss, Commonwealth of Mass. v. U.S. Dep’t. of Health and Human Servs., No. 09–cv–11156 (JLT), at 28–31 (D.Mass. Oct. 30, 2009) (docket entry no. 17); U.S. Dep’t. of the Treasury Mot. to Dismiss, Dragovich v. Dep’t. of Treasury, No. 10–cv–1564 (CW), at 18–24 (N.D.Cal. July 2, 2010) (docket entry no. 25); U.S. Office of Pers. Mgmt. Supplemental Br. in Resp. to Ct.’s Order of Oct. 15, 2010, Golinski v. Ofice of Pers. Mgmt., No. 10–257(JSW), at 10–15 (N.D.Cal. Nov. 19, 2010) (docket entry no. 83). As late as January of 2011, the Department of Justice told the First Circuit that DOMA was not unconstitutional. See Corrected Br. for the U.S. Dep’t. of Health and Human Servs., Commonwealth of Mass. v. U.S. Dep’t. of Health and Human Servs., Nos. 10–2204, 10–2207, 10–2214, at 26– 55 (1st Cir. Jan. 19, 2011). No relevant facts or law have changed since early 2011 when the Department of Justice last took this position. Indeed, at oral argument, the Department of Justice acknowledged that its current position on DOMA is, in part, a result of “a decision that has been made by the Attorney General and by the President, [a] constitutional judgment.” (Oral Arg. Tr. 42:21–43:6.)
Even now the Department of Justice acknowledges that “a reasonable argument for Section 3’s constitutionality may be proffered under” the rational basis standard, and that there exists “substantial circuit court authority applying rational basis review to sexual-orientation classifications.”

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(JA–56, JA–53.) At argument, the Department of Justice summarized its most recent arguments for DOMA’s rational basis as “maintaining the status quo” and achieving “a degree of uniformity for federal benefits, coupled with preserving room for state policy development.” (Oral Arg. Tr. 44:3–7.)
*199 As explained above, only if there is no conceivable legitimate governmental interest, or DOMA is not rationally related to any such interest, will the statute be unconstitutional under rational basis review.
A. Responsible Procreation and Childrearing by Biological Parents
In enacting DOMA, Congress sought to explicitly recognize, for federal purposes, the biological component of the marital relationship and the legal responsibility of rearing the offspring of such a union. Numerous state high courts have accepted this as a rational basis for excluding same-sex couples, even legally recognized same-sex parents, from the institution of civil marriage. DOMA advances the governmental interest in connecting marriage to biological procreation by excluding certain couples who cannot procreate simply by joinder of their different sexual being from the federal benefits of marital status.
Under rational basis review, courts must consider and credit all rationales for restricting federal marriage benefits to opposite-sex couples that do not evince unconstitutional animus. Numerous courts have recognized that denying same-sex couples federal marriage rights or even the right to marry at all can be grounded in reasons other than animus. See Massachusetts v. U.S. Dep’t. of Health and Human Servs., 682 F.3d 1, 16 (1st Cir.2012) (“Massachusetts v. HHS ”) (“we do not rely upon the charge that DOMA’s hidden but dominant purpose was hostility to homosexuality”); In re Kandu, 315 B.R. 123, 147–48 (Bankr.W.D.Wash.2004) (noting that DOMA can be explained by legitimate governmental interests); Standhardt v. Superior Court, 206 Ariz. 276, 77 P.3d 451, 465 (Ariz.Ct.App.2003) (“Arizona’s prohibition of same-sex marriages furthers a proper legislative end and was not enacted simply to make same-sex couples unequal to everyone else.”); Jones v. Hallahan, 501 S.W.2d 588, 590 (Ky.Ct.App.1973) (“We do not consider the refusal to issue the [marriage] license [to persons of the same sex] a punishment.”); In re Marriage of J.B. & H.B., 326
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S.W.3d 654, 680 (Tex.Ct.App.2010) (rejecting argument that limiting marriage and divorce to opposite-sex couples is “explicable only by class-based animus”). See also Lawrence v. Texas, 539 U.S. 558, 585, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) (“Unlike the moral disapproval of same-sex relations—the asserted state interest in this case—other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.”) (O’Connor, J., concurring).
The interest in recognizing the connections between marriage and childrearing by biological parents can be broken down into several components. First, DOMA expresses Congressional recognition that “responsible begetting and rearing of new generations is of fundamental importance to civil society.” (Amicus Br. of States of Indiana, et al. at 25.) Because the state has an interest in children, the state is thus also interested in preventing “irresponsible procreation,” a phenomenon implicated exclusively by heterosexuals. (BLAG Br. at 49.) Because of these legitimate interests, reserving federal marriage rights to opposite-sex couples “protect[s] civil society,” Amicus Br. of States of Indiana, et al. at 25, because without the inducement of marriage, opposite-sex couples would accidentally procreate, giving rise to unstable and unhealthy families. Marriage thus plays the important role of “channel[ing opposite-sex] sexual desires” which, in the absence of marriage, would result in unstable relationships, which have been documented to be harmful to children. (Amicus Br. of States of Indiana, et al. at 26.)
*200 As stated by BLAG, “[m]arriage attempts to promote permanence and stability, which are vitally important to the welfare of the children of the marriage.” (BLAG Br. at 48–49.) That is, marriage works to combat the risk of instability which is characteristic of inherently procreative opposite-sex relationships, but absent from same-sex relationships. See Amicus Br. of States of Indiana, et al. at 24 (“civil marriage recognition arises from the need to encourage biological parents to remain together for the sake of their children”).5 DOMA advances this interest, in that the state only needs to provide incentives to opposite-sex couples in the form of marriage, because only opposite-sex couples have unintended, unplanned, unwanted children. Same-sex couples, by contrast, reproduce only “deliberately choosing to do so and by devoting a serious investment of time, attention, and resources.” (Amicus Br. of States of Indiana, et al. at 35.)
Numerous courts have accepted this rationale as a basis for excluding same-sex couples from civil marriage. The New York Court of Appeals, for instance, determined that

Windsor v. U.S., 699 F.3d 169 (2012) 110 A.F.T.R.2d 2012-6370, 2012-2 USTC P 60,654

The Legislature could ... find that

[heterosexual] relationships are all

too often casual or temporary. It

could find that an important

function of marriage is to create

more stability and permanence in

the relationships that cause children

to be born. It thus could choose to

offer an inducement—in the form

of marriage and its attendant

benefits—to opposite-sex couples

who make a solemn, long-term

commitment to each other. The

Legislature could find that this

rationale for marriage does not

apply with comparable force to

same-sex couples. These couples

can become parents by adoption, or

by artificial insemination or other

technological marvels, but they do

not become parents as a result of

accident or impulse. The

Legislature could find that unstable

relationships between people of the

opposite sex present a greater

danger that children will be born

into or grow up in unstable homes

than is the case with same-sex

couples, and thus that promoting

stability

in

opposite-sex

relationships will help children

more.

Hernandez v. Robles, 7 N.Y.3d 338, 821 N.Y.S.2d 770, 855 N.E.2d 1, 7 (2006) (plurality opinion). See also Andersen, 138 P.3d at 1002 (Johnson, J., concurring); Morrison v. Sadler, 821 N.E.2d 15, 24–25 (Ind.Ct.App.2005).
*201 DOMA furthers the interest in recognizing the link between marriage and procreation for the reasons noted by the Maryland Court of Appeals:

[S]afeguarding an environment most conducive to the stable propagation and continuance of the human race is a legitimate government interest. The question remains whether there exists a sufficient link between an interest in fostering a stable environment
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for procreation and the means at

hand used to further that goal, i.e.,

an implicit restriction on those who

wish to avail themselves of State-

sanctioned marriage. We conclude

that there does exist a sufficient

link.... This “inextricable link”

between marriage and procreation

reasonably could support the

definition of marriage as between a

man and a woman only, because it

is that relationship that is capable

of producing biological offspring of

both members (advances in

reproductive

technologies

notwithstanding).

Conaway v. Deane, 401 Md. 219, 932 A.2d 571, 630–31 (2007) (internal citations omitted).
Another component of the procreation and childrearing rationale for restricting federal rights to opposite-sex marriage is the Congressional desire to have children raised in families with only biological mothers and fathers, which same-sex couples cannot provide. Thus, BLAG contends that DOMA “offer[s] special encouragement for relationships that result in mothers and fathers jointly raising their biological children,” an interest which “simply does not apply to same-sex couples.” (BLAG Br. at 54.) DOMA accomplishes this encouragement by limiting federal marriage rights to opposite-sex couples.
Congress might well have enacted DOMA after consulting “the entire history of civilization” regarding the “problems” that arise when there is no institution to encourage biological parents to remain together. (Amicus Br. of States of Indiana, et al. at 35.) This, too, has been accepted as a rational reason for excluding same-sex couples (including legally recognized same-sex parents) from civil marriages. See, e.g., Hernandez, 821 N.Y.S.2d 770, 855 N.E.2d at 8 (plurality opinion) (“Plaintiffs seem to assume that they have demonstrated the irrationality of the view that opposite-sex marriages offer advantages to children by showing there is no scientific evidence to support it. Even assuming no such evidence exists, this reasoning is flawed. In the absence of conclusive scientific evidence, the Legislature could rationally proceed on the commonsense premise that children will do best with a mother and father in the home.”).6 I agree with BLAG that the evidence offered by Windsor and the professional organizations and child welfare amici who advocate for affirmance does not make Congress’s

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“common sense” regarding the needs of children a forbidden governmental interest under rational basis review. (BLAG Br. at 55.)
As noted hereafter in the context of uniformity, the manner in which DOMA furthers the legitimate governmental interests in childrearing, responsible procreation, and biological parentage respects the principles of federalism. States may still arrive at individual determinations regarding who may and may not marry, and DOMA does nothing to change this functioning *202 of our federal system.7 DOMA simply excludes certain couples who are married under state law from eligibility for certain federal rights, benefits, privileges, and obligations.
DOMA’s exclusion of married same-sex couples, under the rational basis review where means and ends need not match, see Heller, 509 U.S. at 321, 113 S.Ct. 2637, is sufficiently related to the federal interest in recognizing the link between the marital relationship and the rearing of its offspring.
B. Maintaining the Status Quo of Uniformity
BLAG contends that DOMA is rationally related to the legitimate governmental “interest in uniform eligibility for federal marital benefits.” (BLAG Br. at 39.) Congress, it is argued, has a “long history of enacting federal definitions of marriage that do not simply incorporate state definitions and inevitably will conflict with some of them.” (Id. at 42–43.) A uniform federal definition of marriage “ensures that similarly-situated couples will have the same benefits regardless of which state they happen to live in.” (Id. at 39–40.) The District Court expressed skepticism regarding the legitimacy of this end, but principally rejected this justification because DOMA “intrude[s] upon the states’ business of regulating domestic relations.” (JA–1007–09.) Windsor and various amici argue that “[t]he federal government [has always] accepted states’ determinations of who was validly married—no matter how far states’ criteria for validity diverged from one other,” Historians Amicus Br. at 15, and that the promulgation of a federal definition of marriage “injects the federal government into domestic relations law and works to delegitimize both the lawful marriages of thousands of same-sex couples and the considered judgments of ... [s]tates to sanction same-sex marriages, ... intrud[ing] on core state powers.” (States of New York, Vermont, and Connecticut Amicus Br. at 14.)
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The subject of domestic relations, including marriage, has been the province of the states. See Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12, 124 S.Ct. 2301, 159 L.Ed.2d 98 (2004) (“Long ago we observed that ‘[t]he whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.’ ”) (quoting In re Burrus, 136 U.S. 586, 593, 10 S.Ct. 850, 34 L.Ed. 500 (1890)). But DOMA does not change this, and does nothing to strip the status that states confer on couples they marry. Instead, DOMA limits the federal benefits, rights, privileges, and responsibilities of marriage to a subset of those deemed married under state law.
That the federal government often defers to state determinations regarding marriage does not obligate it to do so. While a state may be perfectly disinterested in prying into the reasons a couple marries, the federal government remains deeply and properly concerned with the reason(s) why a couple weds. See Massachusetts v. HHS, 682 F.3d at 12 (“Congress surely has an interest in who counts *203 as married. The statutes and programs that section 3 governs are federal regimes such as social security, the Internal Revenue Code and medical insurance for federal workers; and their benefit structure requires deciding who is married to whom.”).
For example, when people marry for immigration purposes, the federal government may validly deem the marriage “fraudulent,” even though it remains valid under state law. See 8 U.S.C. § 1325(c) (“Any individual who knowingly enters into a marriage for the purpose of evading any provision of the immigration laws shall be imprisoned for not more than 5 years, or fined not more than $250,000, or both.”); 8 U.S.C. §§ 1154(a)(2)(A), 1255(e). Courts have recognized this principle. See, e.g., Taing v. Napolitano, 567 F.3d 19, 21 (1st Cir.2009) (plaintiff remained a “spouse” and “immediate relative” under the Immigration and Naturalization Act, even if her marriage actually ceased under state law upon the death of her spouse); Adams v. Howerton, 673 F.2d 1036, 1040–41 (9th Cir.1982) (even same-sex marriage valid under state law does not count as a marriage for federal immigration law purposes); Lutwak v. United States, 344 U.S. 604, 610–11, 73 S.Ct. 481, 97 L.Ed. 593 (1953) (noting a marriage’s adherence to local law is immaterial if the marriage was “part of [a] conspiracy to defraud the United States”). Tellingly, Windsor does not argue that federal Immigration and Customs Enforcement interferes with traditional state functions when it leaves states free to recognize, for their own purposes, any marriage they like but refuses to grant legal residency to immigrants it believes married only to secure the benefits of marriage.

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DOMA alters the general, but by no means unyielding, practice of the federal government accepting marriages recognized by state law. However, at the time Congress acted, all states recognized only opposite-sex marriages, and the fact that Congress chose to maintain that status quo in response to this new, evolving social issue does not invalidate its legislative interest. It may be that, prior to DOMA, any federal “definition” of marriage was limited to advancing the targeted goal of a particular federal program, not a blanket, undifferentiated policy choice imposed on statuses created by states. See Massachusetts v. HHS, 682 F.3d at 12. But this fact does not render the asserted interest in uniformity illegitimate or so lacking a “footing in the realities of the subject addressed by the legislation” as to fail rational basis review. Heller, 509 U.S. at 321, 113 S.Ct. 2637.
Section 3 of DOMA was enacted as the debate regarding marriage equality was just beginning in the states. At that time, no state had actually permitted same-sex couples to marry. In the intervening years, six states and the District of Columbia have enacted statutes or issued court decisions that permit same-sex marriage.8 On the other hand, thirty states have amended their founding documents by constitutional amendment to prohibit samesex marriage, and eleven more states have enacted statutes to the same effect.9 Given *204 the evolving nature of this issue, Congress was entitled to maintain the status quo pending further developments. Otherwise, “marriage” and “spouse” for the purposes of federal law would depend on the outcome of this debate in each state, with the meanings of those terms under federal law changing with any change in a given state. As Windsor rightly notes, prior to DOMA, a state’s authorization of same-sex marriage had numerous implications for federal laws to the extent those laws were construed to incorporate state-law definitions of marriage. In order to avoid federal implications of state-law developments in the area of marriage, Congress, by enacting DOMA, reasonably froze federal benefits policy as it existed in 1996 with respect to same-sex marriage.
The federal government can legitimately limit the national impact of state-level policy development. Doing so facilitates the ability of the states to serve as laboratories of policy development. As the Massachusetts Supreme Court stated when it held that the Massachusetts state constitution required allowing same-sex couples to marry, “[t]he genius of our Federal system is that each State’s Constitution has vitality specific to its own traditions, and that ... each State is free to address difficult issues of individual liberty in ... its own” manner. Goodridge, 798 N.E.2d at 967.
22

Windsor argues that DOMA upends, rather than preserves, the status quo of Congressional control over the meaning of marriage for federal purposes. But this argument is contrary to the clear legal landscape at the time of DOMA’s enactment—that is, at the time, all states were in full accord in recognizing only opposite-sex marriages. Congress’s actions allow it to maintain a “wait-and-see” approach in the face of evolving state approaches to same-sex marriages, thereby avoiding the need to immediately deal with the potentially significant impact on federal law that a state’s recognition of samesex marriage could have. Indeed, the far-reaching impact of the federal definition of marriage in terms of rights, benefits, responsibilities, and privileges (upon which Windsor places great emphasis) means that Congressional action can quite reasonably be understood to have perceived this potential impact and decided that it was in the federal government’s *205 interest to maintain consistency and uniformity in distributing federal benefits and administering federal programs.
Congress may, and both parties agree that it often does, borrow definitions from state law, but Windsor is incorrect to suggest that it is required to do so or is irrational when it does not. Put directly, Congress may also legitimately take an approach that attempts to create uniformity across the states. In DOMA, Congress chose to adopt a uniform federal definition of “marriage” and “spouse” for purposes of federal laws. Congress could rationally conclude that maintaining the status quo at the federal level during a period of flux would allow states that wish to make changes in the legal definition of marriage to retain their inherent prerogative to do so, while permitting others to maintain the traditional view.
Rational basis review embodies the principle that, as Congress did in enacting DOMA, legislatures are free to refine their “preferred approach as circumstances change and as they develop a more nuanced understanding of how best to proceed.” Massachusetts v. Envtl. Prot. Agency, 549 U.S. 497, 524, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007). Contrary to Windsor’s contention, the preservation of the status quo—the definition of marriage that was uniform among all fifty states in the year of DOMA’s passage—constitutes a legitimate governmental interest insofar as it allows Congress the ability to “wait and see” how the issue of same-sex marriage would take shape among the many and diverse states of our nation.
The uniformity that DOMA recognized and maintained has been recognized both explicitly and implicitly by courts for many years from various jurisdictions across the nation. Perhaps most explicitly, the Supreme Court

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stated:
[N]o legislation can be supposed more wholesome and necessary in the founding of a free, selfgoverning commonwealth, fit to take rank as one of the co-ordinate states of the Union, than that which seeks to establish it on the basis of the idea of family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement.
Murphy v. Ramsey, 114 U.S. 15, 45, 5 S.Ct. 747, 29 L.Ed. 47 (1885).
Other courts have explained that this uniformity has not always been explicit or necessary to state. Almost forty years ago a Washington state court put it thus: “[A]lthough it appears that the appellate courts of this state until now have not been required to define specifically what constitutes a marriage, it is apparent from a review of cases dealing with legal questions arising out of the marital relationship that the definition of marriage as the legal union of one man and one woman who are otherwise qualified to enter into the relationship not only is clearly implied from such cases, but also was deemed by the court in each case to be so obvious as not to require recitation.” Singer v. Hara, 11 Wash.App. 247, 522 P.2d 1187, 1191–92 (1974). See also Jones v. Hallahan, 501 S.W.2d 588, 590 (Ky.Ct.App.1973) (“In substance, the [marital] relationship proposed by the [same-sex] appellants does not authorize the issuance of a marriage license because what they propose is not a marriage.”).
Cases predating Murphy demonstrate that the Supreme Court consistently lauded this conception of marriage as a critical social institution. See Reynolds v. United *206 States, 98 U.S. 145, 165–66, 25 L.Ed. 244 (1878) (“Marriage, while from its very nature a sacred obligation, is nevertheless, in most civilized nations, a civil contract, and usually regulated by law. Upon it society may be said to be built, and out of its fruits spring social relations and
23

social obligations and duties.”).
Subsequent to Murphy, the Supreme Court has continued to view the biological link of parents to children as deserving of special recognition and protection. See Michael H. v. Gerald D., 491 U.S. 110, 120 n. 1, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989) (indicating that where, inter alia, a “husband and wife” are “cohabiting,” there is a presumption that they are in a “harmonious and apparently exclusive marital relationship”); Griswold v. Connecticut, 381 U.S. 479, 482, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) (noting the special “intimate relation of husband and wife”); see also Lawrence v. Texas, 539 U.S. 558, 567, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) (“[I]t would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse.”). And marriage has been noted to carry special legal entitlements for those men and women who enter into it. See, e.g., Griswold, 381 U.S at 495, 85 S.Ct. 1678 (noting it is hard to conceive of what “is more private or more intimate than a husband and wife’s marital relations” and “the rights to marital privacy and to marry and raise a family are of similar order and magnitude as the fundamental rights specifically protected” in the Constitution) (Goldberg, J., concurring); Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923) (determining right to “marry, establish a home and bring up children” is a liberty right under the Fourteenth Amendment).10
The Supreme Court also has taken care to preserve and distinguish the rights of the natural—that is, biological— family over “families” other than the biological. See Lehr v. Robertson, 463 U.S. 248, 256–57, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983) (“The institution of marriage has played a critical role both in defining the legal entitlements of family members and in developing the decentralized structure of our democratic society. In recognition of that role ... state laws almost universally express an appropriate preference for the formal family.”) (footnotes omitted).11 It *207 has noted that “the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation’s history and tradition.” Moore v. City of E. Cleveland, Ohio, 431 U.S. 494, 503, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977) (Powell, J., plurality opinion). The Court has indicated repeatedly that “history and tradition” are the “source for ‘supplying ... content to th[e] Constitutional concept’ ” that biological family units are afforded additional protections under our nation’s laws. Id. at 540, 97 S.Ct. 1932 (citing Poe v. Ullman, 367 U.S. 497, 542, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961) (Harlan, J., dissenting)). Thus, it is and always has been the “ ‘traditions and (collective) conscience of our people,’ ”

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not the “personal and private notions” of judges, that determine societal rights, including what marriage is as an institution and who is entitled to participate in it. Griswold, 381 U.S. at 493, 85 S.Ct. 1678 (citing Snyder v. Commonwealth of Mass., 291 U.S. 97, 105, 54 S.Ct. 330, 78 L.Ed. 674 (1934)) (Goldberg, J., concurring).
In light of these decisions relying on the traditional understanding of marriage as only between one man and one woman, I join Justice Black in the sentiment that “[o]ne of the most effective ways of diluting or expanding a constitutionally guaranteed right is to substitute for the crucial word or words of a constitutional guarantee another word or words, more or less flexible and more or less restricted in meaning.” Griswold, 381 U.S. at 509, 85 S.Ct. 1678 (Black, J., dissenting).
Marriage today, according to the federal government, means what it has always meant—a holy union, essential to the survival of the species, between a man and a woman, the principal purpose of which is to encourage responsible child rearing. Murphy set forth this understanding, Baker v. Nelson reaffirmed it, and no Supreme Court case since Murphy gives me reason to doubt that definition should not still stand.
Having found the interest in maintaining uniformity (including in the form of the 1996 status quo) legitimate, the means employed to advance this goal appear appropriate. As noted above, BLAG argues that DOMA “ensures that similarly-situated couples [i.e., married same-sex couples and all unmarried couples] will have the same federal benefits [i.e., none] regardless of which state they happen to live in, and avoids a confusing situation in which same-sex couples would lose (or gain) federal marital status simply by moving between states with different policies on recognition of same-sex marriages.” (BLAG Br. at 39–40 (emphasis added).) The relevant discrimination, however, to be justified by BLAG is DOMA’s differential treatment of married couples based on the sex of the persons constituting the couple. Married same-sex couples are similarly-situated to married opposite-sex couples with respect to the relevant characteristic at issue: marital status.
Windsor claims that the line DOMA draws fails rational basis review because the purported justifications for the discrimination “make no sense” and “are impossible to credit” in light of how the groups at issue are similarly situated. However, the regulation of federal programs is emphatically the province of Congress. *208 Having not previously defined the scope of federal programs the way DOMA does should not forever bind Congress’s hands from doing so, or make Congressional action nonsensical,
24

especially when viewed in light of the clear and unaltered judicial characterization of the nation’s historical understanding of marriage.
Windsor contends that DOMA creates complexity and establishes two tiers of married couples in states that permit same-sex marriage. But the question of uniformity of marriage at the state level is not DOMA’s concern. While the tension between state and federal policies in this area are real, they are no greater than those that have existed among the states—tensions which Windsor acknowledges reflect the essence of, and have endured under, our federal system.
I conclude, therefore, that it was rational for Congress to prefer uniform substantive eligibility criteria for federal marital benefits for same-sex couples over “uniform” deference to varying state criteria. Such a goal may be an exception to Congress’s general deference to the states in the area of marriage (even in the face of contentious statelevel variation) but this in no way makes the legislative classification employed in pursuit of uniformity irrational in light of the tremendous deference we afford acts of Congress under rational basis review. See Heller, 509 U.S. at 321, 113 S.Ct. 2637 (“[C]ourts are compelled under rational-basis review to accept a legislature’s generalizations even when there is an imperfect fit between means and ends.”).
When, as here, an issue involves policy choices, the Supreme Court has cautioned that “the appropriate forum for their resolution in a democracy is the legislature.” Maher v. Roe, 432 U.S. 464, 479, 97 S.Ct. 2376, 53 L.Ed.2d 484 (1977). DOMA rationally serves the legitimate government interest in maintaining the status quo of the definition of marriage pending evolution of the issue in the states.
* * *
Because the recognition of the biological connection of marriage to childrearing and the pursuit of uniformity (including in the form of preserving the status quo) are sufficient to support DOMA under rational basis review, I choose not to discuss the other asserted rationales. Beach Commc’ns, 508 U.S. at 317, 113 S.Ct. 2096. Nevertheless, I next address whether sexual orientation classifications should, as a matter of first impression in this Circuit, be subject to heightened scrutiny in an equal protection analysis.

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VI. Appropriate Level of Review for Sexual Orientation Discrimination
The Supreme Court has reserved heightened scrutiny for a small number of subject classifications—principally race, alienage, nationality, sex, and illegitimacy. Heightened scrutiny attaches in recognition that these traits have been used to impose, and are therefore closely associated with, social inequality. Therefore, government conduct that employs these classifications is suspect and must have more than a legitimate or merely permissible justification.
The question of the appropriate level of scrutiny for laws that discriminate in respect of the definition of marriage on the basis of sexual orientation is an issue of first impression in this Circuit. See Able v. United States, 155 F.3d 628, 632 (2d Cir.1998) (declining to consider, in military context where judicial deference is “at its apogee,” the question whether sexual orientation discrimination would trigger heightened scrutiny because challengers did not argue for “any more onerous standard than the rational basis test” and *209 therefore “the sole question before us is whether the Act survives rational basis review”).
“[W]here individuals in the group affected by a law have distinguishing characteristics relevant to interests the State has the authority to implement, the courts have been very reluctant, as they should be in our federal system and with our respect for the separation of powers, to closely scrutinize legislative choices as to whether, how, and to what extent those interests should be pursued.” City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 441–42, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). The Supreme Court has repeatedly rejected arguments by litigants and rulings by lower courts that would grant heightened review to legislative distinctions based on mental handicap, id. at 442–47, 105 S.Ct. 3249, kinship, Lyng v. Castillo, 477 U.S. 635, 638, 106 S.Ct. 2727, 91 L.Ed.2d 527 (1986), age, Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 314, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976), and poverty, San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 29, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973).
The Supreme Court, despite having the opportunity to apply heightened review, invalidated the provision of the Colorado Constitution challenged in Romer under rational basis review. See 517 U.S. 620, 116 S.Ct. 1620 (1996). That Romer was decided under the rational basis standard without a need to employ a more exacting level of review does not mean that the question of the appropriate tier of equal protection scrutiny was not before the Court. Indeed, although the Romer plaintiffs “elected not to appeal” the lower court’s determination that sexual
25

orientation does not constitute a “suspect” or “quasisuspect” classification, the Supreme Court “evidently agree[d] that ‘rational basis’ ... is the governing standard.” Romer, 517 U.S. at 641 n. 1, 116 S.Ct. 1620 (Scalia, J., dissenting).
Until the majority’s opinion, DOMA had never been held by the Supreme Court or any Circuit Court to involve a suspect or quasi-suspect classification. Indeed, in light of the Supreme Court’s reluctance to apply heightened scrutiny to new categories of discrimination, and in consideration of the fact that it declined to do so in Romer, eleven other circuits have also not taken this step. See Massachusetts v. HHS, 682 F.3d at 9; Davis v. Prison Health Servs., 679 F.3d 433, 438 (6th Cir.2012); Perry v. Brown, 671 F.3d 1052, 1082 (9th Cir.2012); Cook v. Gates, 528 F.3d 42, 61–62 (1st Cir.2008); Price– Cornelison v. Brooks, 524 F.3d 1103, 1113 (10th Cir.2008); Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 867 (8th Cir.2006); Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir.2004); Lofton v. Sec’y of Dep’t of Children & Family Servs., 358 F.3d 804, 818 (11th Cir.2004); Thomasson v. Perry, 80 F.3d 915, 927–28 (4th Cir.1996); High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563, 573–74 (9th Cir.1990); Ben–Shalom v. Marsh, 881 F.2d 454, 464 (7th Cir.1989); Woodward v. United States, 871 F.2d 1068, 1076 (Fed.Cir.1989); Padula v. Webster, 822 F.2d 97, 103 (D.C.Cir.1987); Nat’l Gay Task Force v. Bd. of Educ. of City of Okla. City, 729 F.2d 1270, 1273 (10th Cir.1984), aff’d by an equally divided court, 470 U.S. 903, 105 S.Ct. 1858, 84 L.Ed.2d 776 (1985) (per curiam). In Massachusetts v. HHS, the First Circuit rejected the application of strict and intermediate scrutiny, recognized that DOMA satisfies rational basis review, and yet went on to create a novel “plus” level of scrutiny applicable to DOMA, in contravention of the Supreme Court’s holding in Baker. Such judicial impositions of new levels of review deprive the American people of further consideration *210 of DOMA through their democratically elected representatives.
Significantly, numerous Circuit Courts of Appeals decisions declining to extend heightened scrutiny to sexual orientation discrimination post-date both Romer v. Evans and Lawrence v. Texas. Windsor argues that the determinations made regarding the appropriate level of scrutiny in decisions such as Cook v. Gates, 528 F.3d 42, 61 (1st Cir.2008) (rational-basis review applies, and “Lawrence does not alter this conclusion”) and Witt v. Dep’t. of Air Force, 527 F.3d 806, 821 (9th Cir.2008) (Circuit precedent requiring rational-basis review “was not disturbed by Lawrence, which declined to address equal protection”) are distinguishable because the cases

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arose in a military context where judicial deference is “at its apogee.” See Able, 155 F.3d at 632. But as the voluminous authority cited above makes clear, see Section IV, supra, whatever additional deference courts afford Congressional action in the military context, rational basis review is, even in the civilian context, highly deferential to the legislature, not a mechanism for judges to second guess properly enacted legislative judgments, and the “paradigm of restraint.” See Beach Commc’ns, 508 U.S. at 314, 113 S.Ct. 2096. See also Perry, 671 F.3d at 1080 n. 13 (relying, in the civilian context, on rulings that declined to apply heightened scrutiny to sexual orientation classifications in the military context). Indeed, the Department of Justice so acknowledged last year—until it changed its constitutional position following the President’s announcement of a change in policy.
Therefore, I would join these eleven circuits, driven not only by a reluctance to do that which the Supreme Court itself has not undertaken when given the chance, but also out of routine respect for extant precedent. Subjecting the federal definition of marriage to heightened scrutiny would defy or, at least, call into question the continued validity of Baker, which we are not empowered to do. Baker involved a law that prohibited same-sex marriage, and thus discriminated on the basis of sexual orientation. Holding that sexual orientation merits heightened scrutiny would be substantively inconsistent with Baker since (1) any legislative action faces a high likelihood of invalidation under heightened scrutiny, and (2) it would be curious to apply heightened scrutiny to a form of discrimination that does not raise a substantial federal question of constitutional law. See Massachusetts v. HHS, 682 F.3d at 9 (“[T]o create such a new suspect classification for same-sex relationships would have farreaching implications—in particular, by implying an overruling of Baker, which we are neither empowered to do nor willing to predict.”). Any such development must come from the elected representatives of the American people.12

*211 Whatever the merits of doing so in a context other than the marital union, I conclude that, in respect of the unique institution of marriage it would be imprudent to announce a new rule under which sexual orientation is subject to heightened scrutiny.
CONCLUSION
For the foregoing reasons, I would hold that per Baker, the legislative distinction drawn by DOMA satisfies rational basis review and is therefore constitutional.
Whether connections between marriage, procreation, and biological offspring recognized by DOMA and the uniformity it imposes are to continue is not for the courts to decide, but rather an issue for the American people and their elected representatives to settle through the democratic process. Courts should not intervene where there is a robust political debate because doing so poisons the political well, imposing a destructive anti-majoritarian constitutional ruling on a vigorous debate. Courts should not entertain claims like those advanced here, as we can intervene in this robust debate only to cut it short.
I respectfully dissent from the majority opinion to the extent it holds otherwise.
All Citations
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Footnotes

1

See Massachusetts v. U.S. Dep’t. of HHS, 682 F.3d 1, 8 (1st Cir.2012) (finding that Baker permitted equal protection review so long

as arguments did not “rest on a constitutional right to same-sex marriage”); Windsor, 833 F.Supp.2d at 399–400 (“The case

before the Court does not present the same issue as that presented in Baker.... Accordingly, after comparing the issues in Baker

and those in the instant case, the Court does not believe that Baker ‘necessarily decided’ the question of whether DOMA violates

the Fifth Amendment’s Equal Protection Clause.”); Pedersen v. Office of Pers. Mngmt., No. 3:10–cv–1750, ––– F.Supp.2d ––––, ––

––, 2012 WL 3113883, at *11 (D.Conn. July 31, 2012) (“DOMA impacts federal benefits and obligations, but does not prohibit a

state from authorizing or forbidding same-sex marriage, as was the case in Baker.”); Golinski v. U.S. Office of Pers. Mgmt., 824

F.Supp.2d 968, 982 n. 5 (N.D.Cal.2012) (“The failure of the federal government to recognize Ms. Golinski’s marriage and to

provide benefits does not alter the fact that she is married under state law.”); Dragovich v. U.S. Dept. of Treasury, No. 4:10–

cv01564–CW, 872 F.Supp.2d 944, 951–53, 2012 WL 1909603, at *6–7 (N.D.Cal. May 24, 2012); Smelt v. Cnty. of Orange, 374

F.Supp.2d. 861, 872–74 (C.D.Cal.2005), vacated in part on other grounds, 447 F.3d 673 (9th Cir.2006); In re Kandu, 315 B.R. 123,

26

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135–38 (Bankr.W.D.Wash.2004); see also Perry v. Brown, 671 F.3d 1052, 1082 n. 14 (9th Cir.2012) (finding that Baker did not preempt consideration of Proposition 8 case, because “the question of the constitutionality of a state’s ban on same-sex marriage” was not before the court) (emphasis added).

2

While other classifications have been deemed quasi-suspect or suspect over the years, the decisions to add sex and illegitimacy

are especially helpful in analyzing whether the classification made in DOMA merits intermediate scrutiny.

3

Compare Lawrence, 539 U.S. at 580, 123 S.Ct. 2472 (O’Connor, J., concurring) (“When a law exhibits such a desire to harm a

politically unpopular group, we have applied a more searching form of rational basis review to strike down such laws under the

Equal Protection Clause.”) and U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 188, 101 S.Ct. 453, 66 L.Ed.2d 368 (1980) (Brennan, J.,

dissenting) (“In other cases, however, the courts must probe more deeply.”) with City of Cleburne, Tex. v. Cleburne Living Center,

473 U.S. 432, 459–60, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (Marshall, J., concurring in part and dissenting in part) (“The refusal

to acknowledge that something more than minimum rationality review is at work here is, in my view, unfortunate.... [B]y failing

to articulate the factors that justify today’s ‘second order’ rational-basis review, the Court provides no principled foundation for

determining when more searching inquiry is to be invoked. Lower courts are thus left in the dark on this important question, and

this Court remains unaccountable for its decisions employing, or refusing to employ, particularly searching scrutiny.”) and Mass.

Bd. of Ret. v. Murgia, 427 U.S. 307, 321, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976) (Marshall, J., dissenting) (“[T]he Court has rejected,

albeit Sub silentio, its most deferential statements of the rationality standard in assessing the validity under the Equal Protection

Clause of much noneconomic legislation.”). But see U.S. R.R. Ret. Bd., 449 U.S. at 176 n. 10, 101 S.Ct. 453 (“The comments in the

dissenting opinion about the proper cases for which to look for the correct statement of the equal protection rational-basis

standard, and about which cases limit earlier cases, are just that: comments in a dissenting opinion.”).

4

Alienage and illegitimacy are actually subject to change. See Pedersen, 881 F.Supp.2d at ––––, 2012 WL 3113883, at *23 (“The

Supreme Court has held that resident aliens constitute a suspect class despite the ability to opt out of the class voluntarily.

Additionally, one’s status as illegitimate may be subject to change and is therefore not a strictly immutable characteristic.”)

(internal citation omitted); see also Watkins v. U.S. Army, 875 F.2d 699, 726 (9th Cir.1989) (Norris, J., concurring) (“It is clear that

by ‘immutability’ the [Supreme] Court has never meant strict immutability in the sense that members of the class must be

physically unable to change or mask the trait defining their class. People can have operations to change their sex. Aliens can

ordinarily become naturalized citizens. The status of illegitimate children can be changed. People can frequently hide their

national origin by changing their customs, their names, or their associations.... At a minimum, then, the Supreme Court is willing

to treat a trait as effectively immutable if changing it would involve great difficulty, such as requiring a major physical change or a

traumatic change of identity.”).

5

For example, certain legislators were concerned that it would be administratively difficult to deal with benefit changes as same-

sex couples moved between states with different policies on same-sex marriage. See, e.g., 150 Cong. Rec. 15318 (2004) (Sen.

Inhofe).

6

“[T]he argument that withdrawing the designation of ‘marriage’ from same-sex couples could on its own promote the strength or

stability of opposite-sex marital relationships lacks any such footing in reality.” Perry v. Brown, 671 F.3d 1052, 1089 (9th

Cir.2012).

7

To the extent that BLAG is suggesting that Congress’ laws might actually influence sexual orientation, there is no evidence to

support that claim (and it strikes us as farfetched).

1

Same-sex marriage never became law in Hawaii because, following Baehr, the Hawaii Constitution was amended to allow for the

legislative prohibition of same-sex marriage. See Haw. Const. art. I, § 23. But, this did not occur until after DOMA was enacted.

2

1988 legislation curtailing the Supreme Court’s appellate jurisdiction did not change the precedential import of summary

dispositions. “Abolition of the [mandatory] appeal jurisdiction does not change this rule.” 16B Charles Alan Wright & Arthur R.

Miller, et al., Federal Practice & Procedure § 4014 (2d ed.2012).

3

Although we have noted that questions may stop being “insubstantial” when subsequent doctrinal developments so indicate,

Port Auth. Bondholders, 387 F.2d at 263 n. 3, the Supreme Court has never, despite the numerous developments in the last forty

years, stated that its holding in Baker is invalid. I am not convinced by Windsor’s arguments that the Supreme Court’s decisions in

Romer v. Evans and Lawrence v. Texas have eroded Baker’s foundations such that it no longer holds sway.

In Romer, the Supreme Court applied rational basis scrutiny to laws that discriminated on the basis of sexual orientation. In

Lawrence, the Supreme Court expressly stated that “[t]he present case does not involve ... whether the government must give

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formal recognition to any relationship that homosexual persons seek to enter.” Lawrence, 539 U.S. at 578, 123 S.Ct. 2472. Consequently, there are no doctrinal changes in Supreme Court jurisprudence implying that Baker is no longer binding authority and Baker’s effect therefore hinges on whether the issues in this case were presented to and necessarily decided by the Supreme Court.

4

Indeed, in Beach Communications, the Supreme Court upheld the challenged law using a posited reason for a federal agency

regulation, even though Congress had previously rejected that purpose and the regulation presented a conflict in the statutory

scheme. Id. at 318, 113 S.Ct. 2096.

5

See also Andersen v. King Cnty., 158 Wash.2d 1, 138 P.3d 963, 982–83 (2006) (“[A]s Skinner, Loving, and Zablocki [v. Redhail, 434

U.S. 374, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978) ] indicate, marriage is traditionally linked to procreation and survival of the human

race. Heterosexual couples are the only couples who can produce biological offspring of the couple. And the link between

opposite-sex marriage and procreation is not defeated by the fact that the law allows opposite-sex marriage regardless of a

couple’s willingness or ability to procreate. The facts that all opposite-sex couples do not have children and that single-sex

couples raise children and have children with third party assistance or through adoption do not mean that limiting marriage to

opposite-sex couples lacks a rational basis. Such over- or under-inclusiveness does not defeat finding a rational basis.”); Lewis v.

Harris, 378 N.J.Super. 168, 875 A.2d 259, 277 (N.J.App.Div.2005) (Parrillo, J.A.D., concurring) (“[A] core feature of marriage is its

binary, opposite-sex nature.... [T]he binary idea of marriage arose precisely because there are two sexes.”); Goodridge v. Dep’t of

Pub. Health, 440 Mass. 309, 798 N.E.2d 941, 979 n. 1 (2003) (Sosman, J., dissenting) (“[T]he reasons justifying the civil marriage

laws are inextricably linked to the fact that human sexual intercourse between a man and a woman frequently results in

pregnancy and childbirth ... that fact lies at the core of why society fashioned the institution of marriage in the first place.”).

6

Amici American Psychological Association, American Academy of Pediatrics, American Psychiatric Association, American

Psychoanalytic Association, National Association of Social Workers, and New York State Psychological Association argue that no

such credible evidence exists. See Amicus Br. of the American Psychological Association, et al. at 15–23.

7

The majority’s holding that DOMA’s definition of marriage as between a man and a woman is unconstitutional will doubtless be

used to invalidate the laws in those forty-one states. Such has to be so given the fact that the equal protection analysis by the

majority in this case for federal purposes pursuant to the Fifth Amendment is the same as that to be applied as to the states

pursuant to the Fourteenth Amendment and is, therefore, the yardstick by which to hold unconstitutional the law in the forty-

one states. Indeed, an affirmance by the Supreme Court of the majority’s view would likely doom the laws of the forty-one states

which exclude same-sex couples from civil marriage.

8

See N.Y. Dom. Rel. Law § 10–a (McKinney 2011); N.H.Rev.Stat. § 457:1–a (2010); D.C. Stat. § 46–401 (2010); Vt. Stat. Ann. tit. 15 §

8 (2009); Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009); Kerrigan v. Comm’r. of Pub. Health, 289 Conn. 135, 957 A.2d 407 (2008);

Goodridge, 798 N.E.2d 941 (Mass.2003).

9

See Ala. Const. Art. I, § 36.03; Ala.Code § 30–1–19; Alaska Const. Art. 1, § 25; Alaska Stat. § 25.05.013; Ariz. Const. Art. 30 § 1;

Ariz.Rev.Stat. §§ 25–101 & 25–112; Ark. Const. Amend. 83, § 1; Ark.Code Ann. §§ 9–11–109, 9–11–107, 9–11–208; Cal. Const.

Art. I, § 7.5; Colo. Const. Art. 2, § 31; Colo.Rev.Stat. § 14–2–104; 13 Del.Code Ann. § 101; Fla. Const. Art. 1 § 27; Fla. Stat. §

741.212; Ga. Const. Art. 1, § 4, I; Ga.Code Ann. § 19–3–3.1; Haw. Const. Art. 1, § 23; Haw.Rev.Stat. § 572–1; Idaho Const. Art. III, §

28; Idaho Code Ann. §§ 32–201 & 32–209; 750 Ill. Comp. Stat. 5/212; Ind.Code § 31–11–1–1; Kan. Const. Art. 15, § 16; Kan. Stat.

Ann. §§ 23–101 & 23–115; Ky. Const § 233A; Ky.Rev.Stat. Ann. §§ 402.005 & 402.020; La. Const. Art. 12, § 15; La. Civ.Code Ann.

Art. 86, 89; Me.Rev.Stat. Ann. tit. 19–A, § 701; Md.Code Ann., Fam. Law, § 2–201; Mich. Const. Art. 1, § 25; Mich. Comp. Laws §

551.1; Minn.Stat. § 517.03; Miss. Const. Art. 14, § 263A; Miss.Code Ann. § 93–1–1; Mo. Const. Art. I, § 33; Mo.Rev.Stat. §

451.022; Mont. Const. Art. XIII, § 7; Mont.Code Ann. § 40–1–401; Neb. Const. Art. I, § 29; Nev. Const. Art. 1, § 21; N.C. Gen.Stat. §

51–1.2; N.D. Const. Art. XI, § 28; N.D. Cent.Code §§ 14–03–01 & 14–03–08; Ohio Const. Art. 15, § 11; Ohio Rev.Code Ann. §

3101.01(C); Okla. Const. Art. 2, § 35; Okla. Stat. Ann. tit. 43, § 3.1; Or. Const. Art. XV, § 5a; 23 Pa. Cons.Stat. §§ 1102, 1704; S.C.

Const. Art. XVII, § 15; S.C.Code Ann. § 20–1–15; S.D. Const. Art. 21, § 9; S.D. Codified Laws § 25–1–1; Tenn. Const. Art. XI, § 18;

Tenn.Code Ann. § 36–3–113; Tex. Const. Art. 1, § 32; Tex. Fam.Code Ann. §§ 2.001(b) & 6.204; Utah Const. Art. I, § 29; Utah Code

Ann. §§ 30–1–2(5) & 30–1–4.1; Va. Const. Art. 1, § 15–A; Va.Code Ann. §§ 20–45.2 & 20–45.3; Wash. Rev.Code § 26.04.010(1);

W. Va.Code § 48–2–603; Wis. Const. Art. XIII, § 13; Wis. Stat. §§ 765.001(2) & 765.04; Wyo. Stat. Ann. § 20–1–101. The statutory

prohibitions or amendments of nineteen of these forty-one states forbid not only same-sex marriage, but any other form of

relationship recognition, such as domestic partnership or civil union, between two persons of the same sex.

10

See also Caban v. Mohammed, 441 U.S. 380, 397, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979) (“Even if it be assumed that each married

parent after divorce has some substantive due process right to maintain his or her parental relationship ..., it by no means follows

28

Windsor v. U.S., 699 F.3d 169 (2012) 110 A.F.T.R.2d 2012-6370, 2012-2 USTC P 60,654

that each unwed parent has any such right.”) (internal citations omitted) (Stewart, J., dissenting); Poe v. Ullman, 367 U.S. 497, 553, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961) (recognizing that “the intimacy of husband and wife is necessarily an essential and accepted feature of the institution of marriage, an institution which the State not only must allow, but which always and in every age it has fostered and protected,” and noting also that the “State” may “exert its power ... to say who may marry”) (Harlan, J., dissenting).

11

See also Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (noting the “absence of dispute” that

“freedom of personal choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment,”

and noting that “[e]ven when blood relationships are strained, parents retain a vital interest in preventing the irretrievable

destruction of their family life”); Trimble v. Gordon, 430 U.S. 762, 769, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977) (describing the “family

unit” as “perhaps the most fundamental social institution of our society”); Smith v. Org. of Foster Families for Equal. & Reform,

431 U.S. 816, 823, 843–45, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977) (noting New York State’s support of laudable policy that “natural

parents” provide the “positive, nurturing family relationships” and “normal family life in a permanent home” that offers the “best

opportunity for children to develop and thrive” and noting the “usual understanding of ‘family’ implies biological relationships”)

(internal citations omitted); Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) (“The rights to conceive and

to raise one’s children have been deemed essential, basic civil rights of man, and rights far more precious ... than property

rights.”) (internal citations and quotations omitted); Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 88 L.Ed. 645 (1944)

(“It is cardinal with us that the custody, care and nurture of the child reside first in the parents.”).

12

Indeed, one elected representative—the President—has already taken steps to mitigate the harms visited upon same-sex

couples by DOMA. The President has issued a memorandum requiring all executive departments and agencies to take steps,

consistent with existing law, to extend benefits to the same-sex domestic partners of federal employees, and where applicable,

to the children of same-sex domestic partners of federal employees. See Presidential Memorandum, Extension of Benefits to

Same–Sex Domestic Partners of Federal Employees (June 20, 2010). The Office of Personnel Management (“OPM”) was directed

to clarify that for purposes of employee assistance programs, same-sex domestic partners and their children qualify as “family

members.” In addition, pursuant to a Presidential Memorandum Regarding Federal Benefits and Non-discrimination (June 17,

2009), OPM issued regulations expanding the definition of “qualified relatives” to include same-sex domestic partners of eligible

federal employees in the federal long-term care insurance program. See 5 CFR 875.213 (June 1, 2010).

In Congress, efforts provide various types of federal benefits for same-sex domestic partners—such as health insurance, life

insurance, pensions, and other employment-related benefits—are routinely introduced, if unsuccessful. See, e.g., S. 2521,

110th Cong. (2007); H.R. 4838, 110th Cong. (2007) (bills died in committee); S. 1102, 111th Cong. (2009); H.R. 2517, 111th

Cong. (2009) (no action taken on either version after being reported out of committees); S.1910, 112th Cong. (2011) (reported

out of committee); H.R. 3485, 112th Cong. (2011) (remains in committee).

End of Document

29

 
 No. 12-307
IN THE
Supreme Court of the United States

THE UNITED STATES OF AMERICA,

Petitioner, v.

EDITH SCHLAIN WINDSOR, in her capacity as Executor of the estate of THEA CLARA SPYER,
Respondent,
On Petition For Writ Of Certiorari Before Judgment To The United States Court Of Appeals For The Second Circuit

RESPONSE IN SUPPORT OF WRIT OF CERTIORARI BEFORE JUDGMENT

ROBERTA A. KAPLAN Counsel of Record
ANDREW J. EHRLICH JAREN JANGHORBANI PAUL, WEISS, RIFKIND,
WHARTON & GARRISON LLP 1285 Avenue of the Americas New York, NY 10019-6064 (212) 373-3000 rkaplan@paulweiss.com

PAMELA S. KARLAN JEFFREY L. FISHER
STANFORD LAW SCHOOL SUPREME
COURT LITIGATION CLINIC 559 Nathan Abbott Way Stanford, CA 94305

STEVEN R. SHAPIRO JAMES D. ESSEKS ROSE A. SAXE AMERICAN CIVIL LIBERTIES UNION
FOUNDATION 125 Broad Street New York, NY 10004

ARTHUR EISENBERG MARIKO HIROSE NEW YORK CIVIL LIBERTIES UNION
FOUNDATION 125 Broad Street New York, NY 10004

TABLE OF CONTENTS Table of Authorities...................................................... ii I. Ms. Windsor Has Standing to Challenge
DOMA .................................................................2 II. This Case Provides a Vehicle for the
Court to Determine the Appropriate Level of Scrutiny for Sexual Orientation Discrimination ....................................................7 III. This Case Presents an Excellent Vehicle for the Review of Section 3 of DOMA ................9 Conclusion .................................................................. 11 Appendix A – Transcript of Second Circuit Oral Argument (Sep. 27, 2012) ....................... a1 Appendix B – Intervenor-Defendant‘s Response to Plaintiff‘s First Requests for Admission (Aug. 1, 2011) ......................... a46
i

TABLE OF AUTHORITIES

CASES

Page(s)

Braschi v. Stahl Assocs. Co., 74 N.Y.2d 201 (1989)............................................... 5

Brockett v. Spokane Arcades, Inc., 472 U.S. 491 (1985) ................................................. 6

Dickerson v. Thompson, 73 A.D.3d 52 (3d Dep‘t 2010) .................................. 3

In re Estate of Ranftle, 81 A.D.3d 566 (1st Dep‘t 2011) ............................... 3

Godfrey v. Spano, 13 N.Y.3d 358 (2009)........................................3, 6, 7

Hernandez v. Robles, 7 N.Y.3d 338 (2006)................................................. 4

Huddleston v. Dwyer, 322 U.S. 232 (1944) ................................................. 6

Matter of Jacob, 86 N.Y.2d 651 (1995)............................................... 5

Lewis v. N.Y. State Dep‘t of Civil Serv., 60 A.D.3d 216 (3d Dep‘t 2009) ............................ 3, 4

Martinez v. Cnty. of Monroe, 50 A.D.3d 189 (4th Dep‘t 2008) .............................. 3

Romer v. Evans, 517 U.S. 620 (1996) ................................................. 8

ii

Page(s)
Rosenberg v. MetLife, Inc., 453 F.3d 122 (2d Cir. 2006) .................................... 6
State Farm Mut. Auto Ins. Co. v. Mallela, 372 F.3d 500 (2d Cir. 2004) .................................... 6
Wharf (Holdings) Ltd. v. United Int‘l Holdings, Inc., 532 U.S. 588 (2001) ................................................. 6 STATUTES
9 N.Y.C.R.R. § 2204.6(d) .............................................. 5 18 N.Y.C.R.R. § 421.16(h)(2) ........................................ 5 N.Y. Banking Law § 451(d)(1) ..................................... 5 N.Y. Civ. Rights Law § 40-c(2) (McKinney
2003) ........................................................................ 5 N.Y. Dom. Rel. Law §10-a (McKinney 2011)............... 6 N.Y. Educ. Law § 313(l)(a) (McKinney 2003) .............. 5 N.Y. Exec. Law § 296 (McKinney 2010) ...................... 5 N.Y. Ins. Law § 2701(a) (McKinney 1998) .................. 5 N.Y. Penal Law § 240.30(3) (McKinney 2008) ............ 5 N.Y. Penal Law § 240.31 (McKinney 2008)................. 5 N.Y. Penal Law § 485.05(1) (McKinney 2010) ............ 5 N.Y. Pub. Health Law § 2805-q(2)(a)
(McKinney 2004) ..................................................... 4
iii

Page(s) N.Y. Pub. Health Law § 4201 (McKinney 2006) ......... 5
OTHER AUTHORITIES 2004 Ops. N.Y. Atty. Gen. No. 2004-1, at 16
(Mar. 3, 2004), available at http://www.ag.ny.gov/sites/default/files/opi nion/I%202004-1%20pw.pdf ................................... 3 An Act to Amend the Domestic Relations Law, in Relation to the Ability to Marry, Assemb. B. 8590, 230th Legis. Sess., Reg. Sess. (N.Y. 2007) ..................................................... 5 An Act to Amend the Domestic Relations Law, in Relation to the Ability to Marry, Assemb. B. 7732, 232nd Legis. Sess., Reg. Sess. (N.Y. 2009) ..................................................... 5
iv

Respondent Edith Windsor respectfully submits this brief in response to the petition for certiorari filed by the United States of America. Ms. Windsor, the United States, and Intervenor the Bipartisan Legal Advisory Group of the House of Representatives (―BLAG‖) all agree that this case presents an issue of exceptional importance that justifies the Court‘s immediate review—the constitutionality of Section 3 of the Defense of Marriage Act (―DOMA‖). See Pet. at 10; Brief in Opposition at 11-12, Windsor v. United States (No. 12-63) (Aug. 31, 2012).
Nonetheless, in its petition, the United States suggests that the Court should grant certiorari in this case only if it determines that United States Department of Health and Human Services v. Massachusetts, Nos. 12-13, 12-15, and 12-97 (―Massachusetts‖), Office of Personnel Management v. Golinski, No. 12-16 (―Golinski‖), and Office of Personnel Management v. Pedersen, No. 12-231 (―Pedersen‖) are not appropriate vehicles to decide the constitutionality of Section 3 of DOMA. The United States contends that this ―tiered‖ approach is appropriate because of potential questions about Ms. Windsor‘s standing and because the District Court in this case applied rational basis scrutiny to hold Section 3 unconstitutional.
As discussed below, neither of the government‘s concerns warrants either delaying consideration of or denying the petitions for certiorari relating to Ms. Windsor. The only thing that truly distinguishes this case from the two other cases in which petitions for certiorari before judgment have been filed (Golinski and Pedersen) is
1

that, consistent with ―settled principles of constitutional avoidance,‖ the District Court did not reach the question of whether some form of heightened scrutiny should apply to statutes that discriminate on the basis of sexual orientation. Pet. App. at 13a n.2. But that difference in no way prevents this Court from addressing the heightened scrutiny issue if it concludes that reaching that question is necessary. This case thus remains an excellent vehicle for reviewing DOMA‘s constitutionality.1
I. Ms. Windsor Has Standing to Challenge DOMA
Any individual whose marriage is valid under state law, but not recognized because of DOMA, has standing to challenge the statute. Ms. Windsor is such a person. The District Court squarely held that New York recognized Ms. Windsor‘s marriage and therefore that she has standing to challenge DOMA‘s discriminatory effects. See Pet. App. at 6a-8a. Although the United States notes BLAG‘s concern that New York might not have considered Ms. Windsor‘s Canadian marriage to be valid, it both acknowledges ―the uniform decisions of [New York‘s] intermediate appellate courts recognizing foreign same-sex marriages,‖ Pet. at 12 (internal quotation marks omitted), and emphasizes that ―BLAG has identified no reason to believe that the State‘s highest court would reach a [different] conclusion.‖ Id. (internal quotation marks omitted).
1 The Second Circuit heard oral argument in this case on September 27, 2012, and it is possible that there will be a decision from the Court of Appeals before this Court takes any action on this or any of the other DOMA-related petitions.
2

Any concern about whether New York

recognized Ms. Windsor‘s out-of-state marriage is

misplaced. Well before the passage of New York‘s

marriage statute in 2011, three of the state‘s four

intermediate appellate courts (including the First

Department, where Ms. Windsor and her late spouse

lived at the time of her spouse‘s death) had

addressed the question of whether New York

recognized out-of-state marriages of same-sex

couples. All of them concluded that it did. See In re

Estate of Ranftle, 81 A.D.3d 566 (1st Dep‘t 2011)

(2008 Canadian marriage); Martinez v. Cnty. of

Monroe, 50 A.D.3d 189 (4th Dep‘t 2008) (2004

Canadian marriage); see also Lewis v. N.Y. State

Dep‘t of Civil Serv., 60 A.D.3d 216 (3d Dep‘t 2009),

aff‘d on other grounds sub nom. Godfrey v. Spano, 13

N.Y.3d 358 (2009). New York‘s Attorney General

had also concluded in a written opinion that New

York would recognize same-sex marriages performed

in other jurisdictions as early as 2004. See 2004

Ops. N.Y. Atty. Gen. No. 2004-1, at 16 (Mar. 3, 2004),

available

at

http://www.ag.ny.gov/sites/default/files/opinion/I%20

2004-1%20pw.pdf; see also Godfrey, 13 N.Y.3d at 368

n.3 (discussing views of New York‘s Governor and

Comptroller); Dickerson v. Thompson, 73 A.D.3d 52,

54-55 (3d Dep‘t 2010). As the District Court noted,

while the New York Court of Appeals has not itself

squarely addressed the question, ―its 2009 opinion in

Godfrey v. Spano said nothing to cast doubt on the

uniform lower-court authority recognizing the

validity of same-sex marriages.‖ Pet. App. at 7a-8a

(citing 13 N.Y.3d at 377).

Moreover, because New York had no statute in place which had the purpose or effect of voiding

3

same-sex couples‘ marriages, it could have refused to recognize Ms. Windsor‘s marriage only if it concluded that such marriages were ―abhorrent to New York public policy.‖ Lewis, 60 A.D.3d at 219 (emphasis added). Even in Hernandez v. Robles, a 2006 decision in which the New York Court of Appeals held in a plurality opinion that the New York Constitution did not guarantee the right to marry to same-sex couples, the New York Court of Appeals hardly suggested that marriages between same-sex couples were ―abhorrent‖ to New York public policy. 7 N.Y.3d 338 (2006). To the contrary, the Court of Appeals stated that while it would not ―say whether same-sex marriage is right or wrong,‖ it suggested that ―of course the Legislature may . . . extend marriage or some or all of its benefits to same-sex couples.‖ Id. at 366; see also id. at 358-59; id. at 379 (Graffeo, J., concurring) (―It may well be that the time has come for the Legislature to address the needs of same-sex couples and their families, and to consider granting these individuals additional benefits through marriage . . . ‖).
Given that marriages and domestic unions between same-sex couples were given widespread social acceptance and legal respect in New York well prior to 2009, such marriages were clearly not ―abhorrent‖ to New York public policy. After all, it was New York‘s public policy to recognize out-ofstate same-sex marriages well prior to 2009, as discussed above. And by 2006, the New York Legislature had passed legislation giving hospital visitation rights and the ability to make decisions about a spouse‘s remains to out-of-state same-sex marriages entered into by New York couples. See N.Y. Pub. Health Law § 2805-q(2)(a) (McKinney
4

2004); N.Y. Pub. Health Law § 4201 (McKinney 2006).2 Additionally, in a clear statement that marriages between same-sex couples were not ―abhorrent,‖ the New York Assembly twice passed Governor-sponsored bills granting same-sex couples the right to marry in New York in 2007 and 2009. See An Act to Amend the Domestic Relations Law, in Relation to the Ability to Marry, Assemb. B. 8590, 230th Legis. Sess., Reg. Sess. (N.Y. 2007); An Act to Amend the Domestic Relations Law, in Relation to the Ability to Marry, Assemb. B. 7732, 232nd Legis. Sess., Reg. Sess. (N.Y. 2009).
In short, there is no reason to believe that the same New York Court of Appeals that invited the New York Legislature to enact marriages for samesex couples in 2006 would have concluded in 2009 (when her spouse died), or even in 2007 (when Edie Windsor was married), that such marriages were ―abhorrent‖ to New York public policy. In fact, the New York Legislature accepted the New York Court of Appeals‘ invitation a mere five years later, when it made marriage for same-sex couples the law in New
2 New York law also provided a variety of other protections to same-sex couples, including prohibitions against discrimination based on sexual orientation, N.Y. Civ. Rights Law § 40-c(2) (McKinney 2003); N.Y. Exec. Law § 296 (McKinney 2010); N.Y. Educ. Law § 313(l)(a) (McKinney 2003); N.Y. Ins. Law § 2701(a) (McKinney 1998), increased criminal penalties for offenses involving animus based on sexual orientation, N.Y. Penal Law §§ 240.30(3) (McKinney 2008), 240.31 (McKinney 2008), 485.05(1) (McKinney 2010), eligibility for a partner‘s credit union services, N.Y. Banking Law § 451(d)(1), protection from eviction, 9 N.Y.C.R.R. § 2204.6(d) (McKinney 2012); Braschi v. Stahl Assocs. Co., 74 N.Y.2d 201, 211-13 (1989), and adoption of a partner‘s biological child, 18 N.Y.C.R.R. § 421.16(h)(2); Matter of Jacob, 86 N.Y.2d 651, 656 (1995).
5

York. See N.Y. Dom. Rel. Law §10-a (McKinney 2011).3
At the recent oral argument in this case before the Second Circuit on September 27, 2012, the judges had the following observations:4
JACOBS, C.J.: But the New York Court of Appeals [in Godfrey v. Spano, 13 N.Y.3d 358 (2009)] was presented with that and they declined to decide it. They said it ought to be a matter for the legislature, as I recall. . . . We can‘t force them to decide anything they don‘t want to decide, it is purely discretionary on their part and it looks like they have
3 Nor would this issue qualify for certification to the New York Court of Appeals, particularly since it is now unlikely to recur. See, e.g., Rosenberg v. MetLife, Inc., 453 F.3d 122, 125 (2d Cir. 2006) (in the absence of a New York Court of Appeals decision on an issue of state law, the Second Circuit looks ―to the decisions of the Appellate Division of the New York Supreme Court‖); State Farm Mut. Auto Ins. Co. v. Mallela, 372 F.3d 500, 505 (2d Cir. 2004) (certification appropriate where ―question is likely to recur‖). 4 A transcript that was prepared based on the official CD recording from the Second Circuit of the oral argument on September 27, 2012 is included as part of the Appendix to this Response. See App., infra, a1-a36. The Second Circuit‘s determination of this question of purely New York law is not one that is likely to be reconsidered by this Court. See Wharf (Holdings) Ltd. v. United Int‘l Holdings, Inc., 532 U.S. 588, 596 (2001) (refusing, in opinion on merits, to review determination of state law by federal court of appeals, because ―we ordinarily will not consider such a state-law issue‖); Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 499-500 (1985); Huddleston v. Dwyer, 322 U.S. 232, 237 (1944).
6

already exercised that discretion. (App., infra, a4.)
. . . .
STRAUB, J.: [T]he simple fact is that the New York legislature has acted and that there is appellate division [case law] regarding that, from which we might believe what the Court of Appeals might say today. (App., infra, a5.)
. . . .
DRONEY, J.: The Court [in Godfrey v. Spano, 13 N.Y.3d 358 (2009)] said it was unnecessary to resolve the issue because the administrators had the authority to treat same sex marriages as other marriages, it was unnecessary, that was the Court of Appeals decision. . . . The [standard for determining whether an] out of state marriage violates an expressed statutory intent to void such a marriage or an aspect of the out of state marriage is abhorrent to New York public policy. How could you conclude that the New York Court of Appeals should decide that? (App., infra, a5-a6.)
II. This Case Provides a Vehicle for the Court to Determine the Appropriate Level of Scrutiny for Sexual Orientation Discrimination
The second reason for the United States‘ ―tiered‖ preference that the Court decide other
7

petitions before considering those filed in this case is that the District Court in this case applied traditional rational basis scrutiny to hold section 3 of DOMA unconstitutional. Pet. at 12.5 Unlike the First Circuit in Massachusetts and the district courts in Golinski and Pedersen, the District Court in this case applied only rational basis analysis to evaluate Section 3 and concluded that, because the statute failed to withstand even that standard, it was unnecessary to inquire into whether heightened scrutiny or some form of intensified rational basis scrutiny would be appropriate.
Contrary to the Government‘s suggestion, the District Court did not ―assume[] without deciding that laws that draw distinctions on the basis of sexual orientation are subject to rational basis review.‖ See Pet. at 8. Instead, it made it clear that because ―the constitutional question presented here may be disposed of under a rational basis review, it need not decide . . . whether homosexuals are a suspect class.‖ Pet. App. at 13a.6 Thus, rather than making any assumptions about the level of scrutiny that should be applied, the District Court concluded that ―[a]ny additional discussion of heightened or
5 The United States also mentions that, had it not filed a petition for certiorari in this case, the Court might be called on to decide whether Ms. Windsor, as a prevailing party in the District Court, has standing to seek certiorari before judgment. Pet. at 11. While Ms. Windsor explained in the reply brief in support of her petition that she does have such standing, Reply in Support of Petition for Certiorari Before Judgment at 711,Windsor v. United States (No. 12-63) (Sept. 5, 2012), the Government‘s petition renders this issue academic. 6 This is similar to what this Court did in Romer v. Evans, 517 U.S. 620, 632 (1996) (―Amendment 2 fails, indeed defies, even this conventional [rational basis] inquiry.‖).
8

intermediate scrutiny would be ‗wholly superfluous to the decision‘ and contrary to settled principles of constitutional avoidance.‖ Id. at 14a n.2 (quoting City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 456 (1985) (Marshall, J., concurring in part and dissenting in part), and citing Spector Motor Serv., Inc. v. McLaughlin, 323 U.S. 101, 105 (1944); Miss. Univ. for Women v. Hogan, 458 U.S. 718, 724 n.9 (1982); Hooper v. Bernadillo Cnty. Assessor, 472 U.S. 612, 618 (1985)).
Ultimately, of course, the level of scrutiny used to evaluate DOMA is a question of law that this Court can determine on its own. Ms. Windsor argued in both the District Court and before the Second Circuit that heightened scrutiny is the most appropriate standard, and she would continue to advance that argument before this Court, which will have the benefit of all lower court decisions on DOMA regardless of which petition(s) for certiorari it chooses to grant. As Ms. Windsor explained in her petition for certiorari before judgment, this case presents a full and clear record which the District Court found to support the conclusion that DOMA could not survive even traditional rational basis scrutiny.
III. This Case Presents an Excellent Vehicle for the Review of Section 3 of DOMA
Finally, it bears repeating that Ms. Windsor‘s own life experiences compellingly reflect the history of lesbians and gay men in our nation over the past decades and illustrate why, under any standard of review, DOMA cannot survive this Court‘s review.
9

For example, when Ms. Windsor, as a mathematics graduate student at New York University in the late 1950‘s, worked on a computer for the Atomic Energy Commission, she justifiably feared that she would lose her job if she were asked whether she was a lesbian when she was called into an FBI interview relating to her security clearance. Supplemental Affidavit of Edith Schlain Windsor ¶¶ 19-23, Windsor v. United States, 833 F. Supp. 2d 394 (S.D.N.Y. 2012) (No 10-cv-8435), ECF No. 83. Similarly, when Ms. Windsor became engaged to her late spouse Thea Spyer in 1967 (when the possibility of their ever getting married seemed virtually impossible), Thea was forced to propose to Edie with a circular diamond brooch (rather than a ring) so that Ms. Windsor could avoid questions about who her fiancé was when she went to her job as a computer programmer at IBM. Affidavit of Edith Schlain Windsor ¶ 10, Windsor, 833 F. Supp. 2d 394 (No 10-cv-8435), ECF No. 31.
Moreover, the record in this case could not be clearer or cleaner—it is undisputed by the parties that solely because she is a lesbian, and was married to a woman (instead of a man), Ms. Windsor had to pay an enormous ($363,000) estate tax bill. See App., infra, a47-a48. While DOMA causes harm to lesbian and gay married couples in innumerable ways (both concrete and dignitary), a $363,000 federal estate tax bill is surely among the most consequential examples of the type of inequitable and unconstitutional injury caused by DOMA. This case therefore presents an excellent vehicle for this Court‘s review of DOMA‘s constitutionality.
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Conclusion
For the foregoing reasons, the petition for certiorari before judgment filed in this case by the United States of America should be considered alongside other petitions concerning the constitutionality of Section 3 of DOMA and should be granted.
Respectfully submitted,
ROBERTA A. KAPLAN Counsel of Record ANDREW J. EHRLICH JAREN JANGHORBANI PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP 1285 Avenue of the Americas New York, NY 10019-6064 (212) 373-3000 rkaplan@paulweiss.com
PAMELA S. KARLAN JEFFREY L. FISHER STANFORD LAW SCHOOL
SUPREME COURT LITIGATION CLINIC 559 Nathan Abbott Way Stanford, CA 94305
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STEVEN R. SHAPIRO JAMES D. ESSEKS ROSE A. SAXE AMERICAN CIVIL LIBERTIES
UNION FOUNDATION 125 Broad Street New York, NY 10004 ARTHUR EISENBERG MARIKO HIROSE NEW YORK CIVIL LIBERTIES
UNION FOUNDATION 125 Broad Street New York, NY 10004 October 10, 2012
12

Appendix A
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

IN THE MATTER OF: EDITH SCHLAIN WINDSOR,
Plaintiff/Appellee,
vs.

Docket No.: 12-2335[L] 12-2435[Con]

UNITED STATES OF AMERICA,
Defendant/Appellant.
- and -
BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES
IntervenorDefendantAppellant September 27, 2012

HELD AT:

Daniel Patrick Moynihan United States Courthouse 500 Pearl Street New York, NY 10007

BEFORE:

Hon. Dennis Jacobs [Chief Judge]
Hon. Christopher F. Droney Hon. Chester J. Straub

APPEARANCES:

ROBERTA A. KAPLAN

a1

TRANSCRIBER:

[For Windsor] PAUL D. CLEMENT [For BLAG] STUART DELERY [For U.S.]
Ann Arundel

RE

RE V.

WITNESS DIRECT CROSS DIRECT CROSS D. J.

E X H I B I T S

PETITIONER Ev.

DESCRIPTION

For In I.D.

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[START RECORDING]
THE COURT: At this time we will hear Windsor versus the United States and the Bipartisan Legal Advisory Group. Good morning, Mr. Clement.
MR. PAUL D. CLEMENT: Good morning, Your Honors and may it please The Court. Congress in 1996 confronted a unique and unprecedented dynamic. While previously every jurisdiction had adopted the traditional definition of marriage, Hawaii appeared to be on the verge of changing the traditional definition to include same sex couples.
In response, Congress did not deem Hawaii‘s choice irrational or in any way attempt to override Hawaii‘s decision. Instead, Congress acted to ensure that each sovereign jurisdiction could decide this important issue for itself without having Hawaii‘s decision govern for them either by the full faith and credit principles or by federal law simply picking up Hawaii‘s definition.
Thus in Section 2 of DOMA Congress essentially made clear that states could rationally decide to follow Hawaii‘s lead or rationally decide not to, but each state could decide the matter for itself. And in Section 3, which is principally at issue here, Congress made clear that federal law would not simply pick up Hawaii‘s definition for U.S. citizens residing in Hawaii, but rather Congress would retain the traditional definition as the federal definition for federal law purposes only.
Now Ms. Windsor attacks DOMA as irrational and violating the equal protection guarantee. Needless to say Ms. Windsor‘s standing to raise that
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objection depends on whether New York law would recognize a same sex couple‘s foreign marriage at a time when New York State itself had not yet decided to recognize same sex marriages.
JACOBS, C.J.: You are suggesting that we certify that question in the New York Court of Appeals?
MR. CLEMENT: That‘s correct, Your Honor.
JACOBS, C.J.: But the New York Court of Appeals was presented with that and they declined to decide it. They said it ought to be a matter for the legislature, as I recall.
MR. CLEMENT: Well, that‘s right, Your Honor, but I mean they didn‘t say we are not going to decide this and we are never going to decide it. They said--
JACOBS, C.J.: We can‘t force them to decide anything they don‘t want to decide, it is purely discretionary on their part and it looks like they have already exercised that discretion.
MR. CLEMENT: Well, I do think that--you are obviously referring to the Godfrey against Spano case, Your Honor, and I think there is a difference there. There, they had two alternative grounds for their decision and they said as a matter of constitutional avoidance, judicial you know minimalism, judicial restraint, we are going to decide on this less controversial ground rather than this more controversial ground. But that doesn‘t mean to suggest that in a case where that was the critical question they wouldn‘t decide the issue at all. And,
a4

indeed, I think in a sense the fact that they had that issue up there and they had three judges who were ready to decide that issue, but the court itself said you know that‘s a difficult issue, let‘s hold off on that. That‘s an argument for certification, not against certification.
STRAUB, J.: Well, the simple fact is that the New York legislature has acted and that there is appellate division regarding that, from which we might believe what the Court of Appeals might say today. We have that right, why shouldn‘t we simply end it there?
MR. CLEMENT: Well, obviously, Judge Straub, you have the right to decide that. It is a discretionary question for this Court and I am not trying to suggest otherwise. What I am trying to suggest though is the critical question is not 2012, the critical question is February 2009. And in circumstances where in November 2009 the New York Court of Appeals, notwithstanding the fact that the you know appellate divisions at that point are all of one view, decides to exercise jurisdiction over the case, so it obviously thought it was an important and close question. It takes the appeal on and then it decides you know nine months after the relevant period here that the question is essentially close enough that it is going to avoid the issue and decide it on an alternative ground. That seems to me to suggest that the standard for certification is satisfied. It is a difficult question. It is a sensitive question of New York law.
DRONEY, J.: The Court said it was unnecessary to resolve the issue because the administrators had the authority to treat same sex
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marriages as other marriages, it was unnecessary, that was the Court of Appeals decision.
MR. CLEMENT: Oh, absolutely, and it is to my point, didn‘t say we will never decide this, they didn‘t say we are scared to decide this. They said in this case it is not necessary for us to decide it. But it—
DRONEY, J.: Would you agree that is correct that they are not recognizing out of state marriages. The out of state marriage violates an expressed statutory intent to void such a marriage or an aspect of the out of state marriage is abhorrent to New York public policy. How could you conclude that in the New York Court of Appeals should decide that?
MR. CLEMENT: Well, I just think, again I think the critical question is is it a question they should decide or is it a question that this court should decide for them. And it seems to me that the question is again not now. I mean you know it‘s-obviously right now it‘s a question that the New York legislature has determined prospectively. But we have a situation here where the question is in 2009 what‘s the question and whatever the right standard is under New York law, it hasn‘t changed since 2009 and you know the court may apply that standard sort of two prong test, they may say actually this is a different situation, we are going to apply a slightly different test. You know I am not here to predict how they would handle that.
I just think--and I don‘t mean to belabor this point either, but I do want to get the point that you know this is a rather extraordinary case. I mean
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usually you have to speculate, is this sort of a close question. Here you don‘t really have to speculate.
I mean the New York Court of Appeals in November of 2009 after taking this case, the issue up, says you know we are not going to decide that issue. They‘ve expressly reserved it. And it wasn‘t just one of those you know drop a footnote here, it is not a big deal, we will reserve it. I mean they had three judges of the court saying you know there are affirmative reasons why we should go further and decide that issue and they declined to do it. So that in a nutshell is the argument for certification, is the argument for standing. But I do want to turn to the merits as well.
And on the merits, of course, Ms. Windsor attacks the statute both as irrational and as failing the strict scrutiny test that she suggests should deal with the classifications based on sexual orientation.
Now the first obstacle to her argument is the Supreme Court‘s summary disposition in Baker against Nelson. Now to be sure a lot has happened since the Supreme Court issued its summary decision, its dismissal for want of a substantial federal question in Baker. But the one thing that hasn‘t changed is this Court‘s obligation to follow Supreme Court precedent, including precedent that is the holdings of summary dispositions.
JACOBS, C.J.: Yeah, but it is limited to the precise facts presented by that case.
MR. CLEMENT: Well, it is not limited to its facts; it is limited to the holding essentially necessary to decide that case.
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JACOBS, C.J.: Well, the holding is a rule of law that is based upon the circumstances presented.
MR. CLEMENT: Sure, but you know you could say you know sometimes a case is limited to its facts and then it doesn‘t apply if the plaintiff‘s name isn‘t Baker. I don‘t think that‘s the test. I think the test is--
JACOBS, C.J.: I absolutely agree with you.
MR. CLEMENT: So the test is just the same legal issue and the legal issue there obviously involve the state statute and that‘s a difference, but it was an equal protection claim based on both sex and sexual orientation and we would say that that--
JACOBS, C.J.: And the test is the same for federal or state.
MR. CLEMENT: Exactly. The Supreme Court has made that crystal clear. And so we think that really decides the case for a lower court. At a minimum, as the First Circuit recognized, even if you don‘t think that absolutely decides the case, it certainly affects the analysis because it certainly means at a minimum that the case has to be decided on the premise that the state laws that do not recognize same sex marriage but maintain the traditional definition are free from constitutional infirmity and then the question really becomes why can‘t the federal government do the same thing when it comes to federal benefit statutes. And that‘s why I think you know the appellees have a section in their brief about you know kind of what DOMA does and what DOMA doesn‘t do. And I think it is important to focus on that because as I say this would be a
a8

different case if Congress tried to interfere with state laws that recognized same sex marriage as a matter of state law. They tried to use its preemptive authority to override those state decisions, but that‘s not what Congress did here. Congress operated exclusively in an area that I would have thought was unquestionably an area of exclusive federal prerogative which is federal benefits laws and it said for purposes of those federal benefit statutes we are going to apply a uniform federal definition and we are going to maintain the traditional definition, the definition that was the then governing law in all fifty states continues to be the majority rule.
I see that my time has expired.
STRAUB, J.: You have observed that the traditional definition as that being the law. Where would I find that in a Supreme Court opinion?
MR. CLEMENT: Well, I mean, I am happy to try to reference you to some Supreme Court opinions that in referring to marriage have referred to it in sort of gender specific or sex specific terms that would suggest that that was their understanding of it. But I was making a slightly different point, which was simply--
STRAUB, J.: I understand that. I was taking you to the point that you were about to speak to. Are there Supreme Court cases that are not defined or at least described or somehow referred to this traditional understanding of marriage?
MR. CLEMENT: Yes, there are, Your Honor. We cited some of them in the briefs. I know there is an old, I think Murphy is an old Supreme Court case.
a9

But I think if you look at you know virtually every one of the Supreme Court‘s cases that talks about marriage including Loving, for example, it is always talked about in terms of I think would have to be understood as referring to the traditional definition, either there is references to husband and wife or there are references to the unique link between marriage and procreation, that‘s some of the language in Loving for example. So I think they are thinking about it in terms of the traditional definition.
STRAUB, J.: The Supreme Court has written in 1885 a rather definitive statement and then point out they are having some reference to it over the years. Has the Supreme Court said anything to the contrary?
MR. CLEMENT: Not that I am aware of. As far as I know every reference to marriage is you know at a minimum it would be neutral, so there would be nothing to the contrary and I think most of the references would be made in ways that make clear that what the Court has in mind when it is talking about marriage were in places suggesting there is a fundamental right to marriage, they are talking about the traditional definition. And, of course, that‘s not surprising because they are talking about it at a time like when Congress acted in 1996, that everybody understands that the traditional definition is the definition. And I would say one thing too, which is you know the one time where the court talks about marriage in a context where they might have had a real reason to distinguish is, of course, in Lawrence, but when they talk about marriage in Lawrence they are talking about it to
a10

make clear in the majority opinion, we are not saying anything that affects the question of same sex marriage. You have Justice O‘Connor, who is saying that there in fact is a legitimate government interest in preserving the traditional definition and then you have, of course, the dissenting opinion which is I think you know takes it even further and would say that you know expresses concerns about the logic of the majority but says and it is indeed in response to that dissent that the majority is essentially saying. That‘s not what this opinion is about. We are not going there. So there is certainly nothing in the Supreme Court‘s cases that suggest that anything but the traditional definition is the definition that they‘ve had in mind in their cases.
JACOBS, C.J.: Some of the amicus briefs and the other side is arguing that this is a matter that ought to be gauged under intermediate standards of scrutiny and one of the criteria there is immutability, identifiability and so on. Putting aside the issue of immutability, because that is just argued all over the place amongst psychologists and geneticists and everyone else, why is sexual preference not something that is manifested when people apply for this government benefit, like illegitimacy. I mean people don‘t know that people are illegitimate, people don‘t walk around with a sign, but when they apply for you know to probate an estate or to get Social Security or whatever it is and they fill out a form and they say well you know my folks are not married, then that raises the issue of illegitimacy. And why is it not the same thing when a same sex couple shows up at the registrar‘s office and gives their names or their manifesting of the same sex?
a11

MR. CLEMENT: Well, in that sense it may be similar in that one respect, illegitimacy, but I think that‘s what would take you to the other relevant factors in the analysis with things like political powerlessness for example, where I think there is a radical difference between illegitimacy on the one hand and homosexuality on the other and then you look at some of the other factors as well and I think that‘s where the distinction would be drawn. But I do think in that sense you do have a dynamic where it would you know to the extent that two people of the same sex want to make a claim for benefits based on marital status, as you say, at that point it is going to be clear.
JACOBS, C.J.: In terms of political power is the test whether they have political power at all or is it whether such political power as they may have is diminished by the fact that it is harder to publicly associate or it is unknown how many people have varied sexual preferences.
MR. CLEMENT: Oh, I think it is the former, Your Honor, and I don‘t think it is an overly demanding test. I think it is a test that doesn‘t-- you know it doesn‘t guarantee successful outcomes. It guarantees--it is a question of whether you can get the attention of legislators.
JACOBS, C.J.: But women can and there is intermediate scrutiny for sex?
MR. CLEMENT: Sure, but I think you know obviously we are talking about one of those classic four factor tests and you can point to, okay, this factor is like sex and this factor is like illegitimacy, but when you take them together I don‘t think there
a12

is anything like this and I think there is an important difference.
JACOBS, C.J.: There isn‘t any classification that correlates with sexual preference across the four criteria?
MR. CLEMENT: I think that‘s right and I do think that you know in a context like sex for example, I mean, you know the political powerlessness probably you could check that box. But on the other hand you have something there which I think is you know in my view there are probably two things that you would really look for in looking for why a classification would qualify for heightened scrutiny. And to me the two things that would make the most sense is one, political powerlessness because if they have access to the legislative process it is not clear why they really need the courts to intervene, why you can‘t leave this issue for the democratic process. But the other thing which was true of sex and was true of race, but is not true of sexual orientation is if there is a discrimination that takes the form of denying the franchise. I mean if you can‘t vote precisely because of your sex or precisely because of your race, well then that‘s like a structural impediment to use the democratic process to get your way and whatever the history of discrimination on the basis of sexual orientation and obviously there is a debate on that in the briefs in the Supreme Court and in Lawrence itself suggested that you know it is a relatively recent phenomenon where it has taken that specific form. But the point is you know we have never had a situation that I am aware of where sexual orientation was a basis for disenfranchisement.
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JACOBS, C.J.: Well, the minority members of the Bipartisan Legal Advisory Group, they argue if lesbians and gay men had political power how would DOMA have passed overwhelmingly, you have a neat bit Judo, I guess, but I mean, what‘s your answer to that?
MR. CLEMENT: Well, I would somewhat rhetorically come back and say if they had no political power how would they get 137 members of Congress or whatever the final tally is to file an amicus brief now. And to be sure, you know I think that I could have made in 1996 an argument that the political power factor argued against recognizing homosexuality as a heightened class, but whatever the strength of my argument in 1996, I think my argument on that is much stronger in 2012 and that fact alone seems to me to speak strongly to the idea that this is an issue that can be left to the democratic process. I mean you know one need look no further than the State of New York where you know the Court of Appeals in Hernandez had this question as a judicial matter, they said we are not going to find a fundamental right to same sex marriage but they wrote in their opinion you know this is--you know they almost you know had implored the legislature, please you know address this issue. And in the same way if this Court applies rational basis, recognizes there is a rational basis for this 1996 statute, then a process can play out where the members of Congress, some of whom voted for DOMA themselves and now are on the other side, that process can continue and the political process can resolve it. And I am not predicting how that will get resolved and when it will get resolved, but the question is in an area like this where there seems so much reason to think that the
a14

legislative process is available to continue to address this issue as people‘s opinions evolve and the like, why the courts would want to sort of take it off the table, with heightened scrutiny I think is strongly counsels on not applying heightened scrutiny, as does of course the fact that this Court of Appeals would then be the first to do that, notwithstanding this kind of uniform wall of precedent.
DRONEY, J.: A few more questions.
MR. CLEMENT: Sure.
DRONEY, J.: First is has the Supreme Court ever recognized this kind of rational basis review that was applied in the First Circuit and second is, if we were to conclude that DOMA is subject to intermediate scrutiny, what‘s your position on whether it would survive?
MR. CLEMENT: Well, I will take them both in turn. I mean we would take the position that no, the Supreme Court, you know sort of three levels of scrutiny is enough. There is rational basis, there is intermediate scrutiny and there is strict scrutiny. And so we don‘t think that there is any support for this notion of kind of rational basis plus or intermediate scrutiny minus. And you know there obviously are some cases you could read where the courts write something down on rational basis, like Cleburne for example and you can think well that must be something other than rational basis. But I don‘t think the Court‘s decisions allow us to do that, to recognize that.
And the one thing I would say is, there is no support for a sort of rational basis plus where the
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plus comes from federalism principles and I think you know it is just a misfit from an equal protection standpoint. I mean most of our equal protection cases or 14th amendment cases were worried about state action. We are not particularly solicitous in the equal protection realm for states in any particular way.
To answer the second part of your question, you know I do think it is a much more difficult argument to try to say that DOMA passes something other than rational basis. I think that‘s in part because you know you are talking about a definition. I mean a definition by its very nature it‘s a little hard to say that having drawn a definitional line one place rather than another is really you know important for a government interest. But that said, I will try it, which is to say I think you know I think the answer then becomes kind of the analysis of Justice O‘Connor in her concurrence in Lawrence. She is not applying intermediate scrutiny as such, but you know she says look there is an important government interest in--she uses the word I think legitimate, but I would say important, important government interest in preserving the traditional definition.
There is no other way to preserve the traditional definition than to preserve the traditional definition, it becomes somewhat circular but it gets to the problem that we are talking about a definition.
And so I would say that even if you get out of the basis of rational basis, you know there still is this idea that there is something important about letting each sovereign decide for themselves whether they want to make this important decision. You know I
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don‘t think anybody on either side of this case minimizes what‘s at stake here and the importance of what is at stake here.
DRONEY, J.: But did she say in her concurrence though, the two that applied rational basis that‘s what started this, isn‘t that right?
MR. CLEMENT: Well it--
DRONEY, J.: The rational basis - - would – towards – politically oppressed people she mentions that in her concurrence?
MR. CLEMENT: She mentions that in her concurrence, you know, I agree, that‘s one vote for that sort of principle. I don‘t really see that emerging as a majority view in any of these cases. You know as I read and obviously people can read these cases differently, but as I read Romer and as I read Lawrence, I mean, I think Romer is really the most important one here, you know the Court is saying this is rational basis review and you know it is the dissent that is saying this must be something more and they are saying ―no‖, you know and obviously as a component of rational basis they do say that you know--and this is what they said about amendment 2 in Romer, if you go through the analysis and there is no other explanation left than hostility to a group, well that‘s not a rational basis.
But I don‘t think you could reach the same conclusion with respect to DOMA as we you know exhaustively cover in the briefs. There are a number of rational bases that would satisfy traditional rational basis review and as I say even the First Circuit recognized that if you were just you know
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applying plain vanilla rational basis the justifications the House has offered would be sufficient.

If there are no further questions, thank you.

JACOBS, C.J.: Ms. Kaplan?

You reserve rebuttal.

MS. ROBERTA KAPLAN: Thank you, Your Honor.

JACOBS, C.J.: Good morning.

MS. KAPLAN: Good morning. This case presents a single question, is Section 3 of the Defense of Marriage Act or DOMA unconstitutional as applied to Edith Windsor, an eighty-three year old lesbian widow who had to pay a $363,000 estate tax bill and wants her money back. Judge Jones held that it was. The policy underlying the marital exemptions to the federal estate tax as set forth in our brief was to eliminate the so-called widow‘s tax on surviving spouses so that they could keep all the property accumulated during the marriage after a spouse had died. To quote Barbara, and on this Mr. Clement and I agree, to quote Barbara Underwood‘s Amicus brief at page 2, ―This case does not present the question whether the Constitution requires states to follow the path of New York, Vermont and Connecticut. Instead this case presents a different question, whether when states have chosen to authorize same sex marriage for purposes of state law. There is a sufficient federal interest to justify Congress in disregarding that choice.‖

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Ms. Windsor contends that Section 3 of DOMA should be subject to some form, as I heard you just discussing, some form of heightened or more searching review for a number of reasons.
First, application of the traditional test under Cleburne, the four point test and second, because like the First Circuit, because of federalism concerns and because like the Colorado statute at issue in Romer, DOMA targets a narrowly defined group and then imposes upon that group, and I am using the language of Romer, a change in legal status that is so sweeping and comprehensive as to bear no discernible relationship to any legitimate governmental interest.
We respectfully submit that if there ever were a statute that fits within the holding of DOMA this is it.
Because Mr. Delery, who is speaking next, will principally address the heightened scrutiny arguments, I am going to focus today on rational basis review and the rationales.
When it passed DOMA in 1996, Congress created an unprecedented, one-time, permanent exception for the marriages of gay people that excluded gay married couples from both the protections and the burdens of federal law across the board. I think Mr. Clement conceded it was definitional.
Federal law still depends on state law to determine the existence of a valid marriage for any other purpose except with respect to gay people. Anything other than the most fleeting examination
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of either the justifications offered by Congress at the time or those being offered by BLAG today, demonstrates that Congress‘ rationales are not constitutionally legitimate, are not rational in the sense that they are fairly related to excluding gay married couples or both.
JACOBS, C.J.: Well, what about the justification offered that this does involve money? I mean as you pointed out this case involves a third of a million dollars and no doubt its ramifications if you were to prevail would involve a lot more money than that.
MS. KAPLAN: Sure.
JACOBS, C.J.: And why can‘t Congress make decisions that involve money?
MS. KAPLAN: Yes. As Judge Jones concluded below, Your Honor, saving money alone is not a sufficient justification unless it is coupled with some other independent reason. And this is particularly true when the classification is drawn against a historically disfavored group.
STRAUB, J.: Can you contest it is your position as well that saving money wouldn‘t be an appropriate interest if it was also some other interest?
MS. KAPLAN: The cases say, but the cases say that saving money standing alone--
STRAUB, J.: Is it your position—
MS. KAPLAN: Yes, Your Honor.
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STRAUB, J.: --that saving money plus another interest would be sufficient?
MS. KAPLAN: Correct, plus another rational interest, yes.
DRONEY, J.: - -
MS. KAPLAN: Yes, correct. So it is actually a very unique situation here. In 1996, this actually was one of the rationales that Congress articulated. They said this. At the very same time though which is pretty extraordinary, they admitted in the record that they didn‘t know whether DOMA would save money, so they say, ―we want to save money, but we don‘t know whether it going to save money.‖ That‘s what Senator Byrd said, cited in our brief, who was an expert on these issues.
JACOBS, C.J.: Well, why can‘t Congress guess about these things? I mean it is not like Congress has never before made an error as to what the cost is in legislation?
MS. KAPLAN: I believe that if Congress at one time is saying we are going to save money and then says at the same time we don‘t know whether we are going to save money, I think that‘s very close to the kind of irrational speculation that would offend even the lowest form of rational basis review. It certainly wouldn‘t satisfy any other form of review.
JACOBS, C.J.: What if one coupled Congress‘ idea, which may or may not be defective, that this would save money with the idea that it is necessary or useful for the federal government to approach this issue on a uniform basis so that U.S. citizens are not
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treated differently by the federal government in Missouri as opposed to Vermont?
MS. KAPLAN: A couple of answers to that, Your Honor. First of all, the true uniformity with respect to marriage, as we have described, was allowing states to define marriage and create it. So this was not uniform with respect to federal law, it was creating a fundamental difference.
Number two, there is no uniformity, it did not promote uniformity because obviously at the time of 1996, there were no states that permitted marriage between same sex couples, today there are six with another two with referenda, which actually is very relevant to political powerlessness, and then DC. So the uniformity here that had always existed for our entire nation‘s history had been Congress deferring to federal definitions of marriage and this created a radical change to that. Moreover, the federal government has always had a way of dealing with situations for marriages are different in one state than another. In fact, even at the time of Loving, before Loving was decided, in states that did not permit marriages between interracial couples, Congress deferred to those.
The problem that was supposedly going to be solved by uniformity is a problem that our federalist principles already deal with. Let me give you a hypothetical. If Ms. Windsor today--I don‘t want to use Ms. Windsor, because unfortunately, her spouse is already dead, but if a couple married in New York today moved to North Carolina and the spouse died and they sought the marital exemption, they would not get it. Under this Court‘s decision in Goldwater, the determination of marriage is based on the
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domicile of the decedent at the time of death. And I would implore you to look at that case because you actually reject--not you, the Second Circuit, of course, rejected a uniformity rational proffered in that case, with respect to treating marital deductions for the estate tax the same.
JACOBS, C.J.: So you are saying it would be in every instance it would be known categorically whether a person who is a surviving spouse of the same sex marriage should or should not be able to get the federal benefit?
MS. KAPLAN: Yes, I think it is quite clear today. In fact, again contrary to something that Mr. Clement said, we have I think it is over thirty states today that have passed laws essentially either by statute or by constitution prohibiting same-sex marriage within their jurisdictions. Obviously, those states are crystal clear as to where they stand and where they would stand on this issue. And I think that also goes and I understood there were a lot of arguments about the incredible political power, but I think that certainly goes to the political powerlessness, relative political powerlessness of gay men and lesbians, not only in 1996, but today as well.
JACOBS, C.J.: To jump back to sort of a threshold issue, which is what is the freedom of action of any intermediate federal court in view of Baker, would you concede as Mr. Clement argued that the standard is the same for equal protection by the federal government or the states and that if state action of the kind of issue in Baker did not offend equal protection then the same should be true with
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respect to the federal government, in which case all of your arguments would be merely interests.
MS. KAPLAN: No, Your Honor, I wouldn‘t concede that. Specifically with respect to DOMA and specifically because states control who can get married, who can have children, and as Mr. Clement conceded, DOMA didn‘t seek to change that. The disconnect between the rationales offered with respect to this statute are very different and have to be conducted under a different analysis than the disconnect in connection with a federal right to marry.
This case is not about the federal right to marry. It is about in circumstances where states define marriage, and were DOMA explicitly said we are going to leave that to the states, and let‘s take parenting as an example, parenting is actually a good example of this.
With respect to, let‘s take heterosexual couples first, with respect to heterosexual couples as Judge Jones said, there is nothing, there is absolutely no rational connection to assume that any heterosexual couple is going to change their behavior with respect to either children or getting married because DOMA exists, because my client couldn‘t get an estate tax exemption.
With respect to gay couples, if somehow there is some interest in discouraging gay couples from getting married, DOMA doesn‘t do that, didn‘t do that and it also can‘t discourage them from having children because those again as Judge Boudin said in the First Circuit, are matters of state law.
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So whatever interest a state may have in those issues and that‘s again not this case, here the disconnect is so attenuated that this is a far different question. I don‘t think Baker controls for that reason and for a bunch of additional reasons that I would be happy to discuss as well.
Let me move on with respect to uniformity because I heard the Court talking about that. It is very interesting. We talk in our brief about how under uniformity, you would have the same problem with first cousin marriages. In response, the response says ―yes‖, but first cousin marriages don‘t‖--I think the words were-‖don‘t invoke the same feelings‖ as marriage between gay couples.
Your Honors, I would submit that precisely because we are talking about strong feelings, if that‘s the rationale, that‘s why we fit within Romer.
Let me go to saving money.
DRONEY, J.: - -
MS. KAPLAN: Sure, Judge Droney.
DRONEY, J.: You‘ve often - - in your brief say it should be strict scrutiny.
MS. KAPLAN: Yes.
DRONEY, J.: - - as I indicated just said enhanced scrutiny - - . Why do you think strict scrutiny rather than intermediate scrutiny applies, how do you make that call?
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MS. KAPLAN: Sure, I will be frank with you, it obviously doesn‘t matter to the result, I don‘t think it matters to the result, I don‘t think--Mr. Clement didn‘t try to defend it under intermediate scrutiny below. I heard him trying to do it today. I don‘t think it works. But we believe that being gay and lesbian, being gay or lesbian is closest to being an African American than it is to being--I hate to get so personal about this, than being a woman, because there is nothing about being gay or lesbian that has anything to do with an individual‘s ability to perform in society and that‘s essentially what I believe the courts are looking at, that‘s the first factor, I believe it is the most important factor. Whereas, for women, and I‘m obviously a member of that class, there are obviously things, we get pregnant, we are not as strong, there is the firemen cases, things like that, where there could be some kind of differentiation by the legislature that would make sense. With respect to gay and lesbian people, it is very hard if not impossible to conceive of any such differentiation. I can see that my time is up.
DRONEY, J.: - - involved with illegitimacy - -
MS. KAPLAN: Yes.
DRONEY, J.: - - that‘s not an obvious characteristic - -
MS. KAPLAN: I agree with that and I also agree that the different factors come out differently as you compare them to different groups, which is natural when you think about it. I don‘t think for sure--we personally believe, our view is that for strict scrutiny, it should be based on whether the group has, if there is anything about being a member of
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that group that has anything to do with that group‘s ability to perform or to contribute to society. So we think strict scrutiny is more appropriate for that reason, but again it makes no difference in the result and obviously, we would be very happy with intermediate scrutiny as well.
JACOBS, C.J.: On that subject, there is a submerged dispute in the briefs as to whether that consideration and say capability means, refers generally to one‘s capability of functioning in society and making a contribution to society or whether it has to do with the capability to enter, you know in this instance, to enter into marriage, to procreate and so on.
MS. KAPLAN: Yes.
JACOBS, C.J.: Where would we look to find out which of these two really inconsi-incommensurable rules is the proper test?
MS. KAPLAN: Yes, I think that what you see in the brief from BLAG is an attempt to bootstrap the responsible procreation, the biological procreation argument to the rational basis inquiry and so the connection. I don‘t think there is any such connection in the case law whatsoever. I don‘t think you will find any Supreme Court case that has a connection between the rationale and whether a group gets heightened scrutiny, those are divorced inquiries.
And I think while there are no cases that talk about procreation being a factor for getting intermediate or heightened scrutiny. I think that‘s for a very good reason that there is no analysis of
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that. And the reason is because obviously people, straight people as well as gay people who don‘t have a biological ability to procreate, certainly have the ability to succeed and perform and contribute to society in every way and that there is no difference whatsoever and they shouldn‘t be treated any differently based on that difference.
JACOBS, C.J.: In your federalism argument, I mean I understand what it is, but I mean, your adversaries really turn it around and they say that you know the states do decide who is married, but why is it not the role of Congress to say what federal statutes say and mean and why is that not a completely appropriate role for the federal government and if not even a necessary one. I mean all courts find it helpful to find a definition.
MS. KAPLAN: Yes, I think the federalism concerns come up two ways. First is the way I have already talked about, Judge, which has to do with because these issues are state issues, when you get to comparing the classification and the objective, and seeing whether, I think the word you used at one point was a fair, there has to be a fair connection. There is no fair connection for that reason.
On top of that, I think you have to look at a 200 year federalist tradition in which Congress had constantly, consistently, uniformly deferred to state definitions even for marriages that I think we all in this room today would find, or laws today that we find odious, like the anti-miscegenation laws prior to Loving. Even in those circumstances, Congress always deferred. So I think what Judge Boudin was saying is that there is the Romer sense, although I acknowledge this isn‘t in Romer, there is a sense of
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queasiness or a sense of suspicion that should require the courts even if applying rational basis to look at the link, the way that Justice Kennedy described in Kennedy, the link between the classification and the objective.
STRAUB, J.: - - is it part of your position or your argument that those 30 odd states that you referred to that define marriage by statute or constitution as the traditional union of a man and a woman, that they too are unconstitutional to the extent that they prevent the participants from state benefits?
MS. KAPLAN: No, it is absolutely not our argument. I‘m not--we are not arguing here. And this case would not--an affirmance to this case, would not result in an argument in any way.
STRAUB, J.: Explain to me why there is a difference in this instance is the federal benefits that are at least arguably sought to be protected by the definition of marriage? You argue that that is unconstitutional? There are some thirty states which may well be precisely the same circumstance and yet you say those are constitutionally--
MS. KAPLAN: No, no, I am not saying they are constitutional.
STRAUB, J.: - -
MS. KAPLAN: Please don‘t. Yes.
STRAUB, J.: But have the same principles that would apply in those instances, is that correct?
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MS. KAPLAN: I think parenting again is the perfect example and I think if you look at what Judge Boudin--
STRAUB, J.: That are the same principles would apply to - - an analysis of those states?
MS. KAPLAN: The same principles apply, but the connection between the objective and the classification might be different in those states, because those are the states that determine, for example, who can marry and who can adopt. So if you were to look at the impact on behavior it could well be different.
I, of course, as a personal matter, I am not arguing that case, might disagree and I am sure there are arguments that are being raised. There is a case before the Supreme Court that makes those arguments right now. But this case is far narrower than that because as Judge Boudin said, the connection between what states do and what the federal government does is different and you don‘t have to go to deciding those issues that you might have to decide, for example, the science of parenting in those cases.
STRAUB, J.: So arguable at least, an affirmance here - - issued by the Supreme Court in your favor - - would probably bring in stuff that is - -
MS. KAPLAN: I am quite certain that other people would litigate that issue and continue to litigate that issue as to whether even those rationales wouldn‘t work for those states. I can‘t tell you how that would come out again, that‘s arguably an issue in the Perry case, that‘s not this case. But I
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certainly--I think people will take this case, argue either side. I certainly don‘t think this case would control that issue.

STRAUB, J.: Am I correct that however we decide this case would have no bearing whatsoever on issues of adoption which would still be governed by state law and the best interest of the child?

MS. KAPLAN: Correct.

STRAUB, J.: And one final thing, Ms. Kaplan. I chatted with your friend here about this earlier decision back in 1885. Well, I am not quite sure I see - - in any event, which was rather definitive in its description of a traditional marriage. Do you know of a Supreme Court case that has stated issue with what Murphy said--

MS. KAPLAN: perspective?

From a definitional

STRAUB, J.: Yes.

MS. KAPLAN: No, I am not aware of any. I was laughing because I was hoping I wouldn‘t get that question, Judge Straub, but having gotten it, I am not aware of any case that from a definitional perspective, as opposed to a rationale, would take issue with that definition. Obviously, in the 1880‘s it is almost impossible. In 1967, when my client got engaged, it was almost unforeseeable whether marriage would be permitted.

JACOBS, C.J.: Thank you.

MS. KAPLAN: Thank you.

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JACOBS, C.J.: We will hear from the United States.
MR. DELERY: May it please the Court. Stuart Delery on behalf of the United States. This Circuit has not decided what level of scrutiny applies.
JACOBS, C.J.: Let‘s step back a second and ascertain--there is an undecided motion as to whether your notice of appeal should be stricken and whether you are an appellant or an appellee, and you know I am just a lawyer. In my day when you won, you didn‘t appeal.
MR. DELERY: Right. So here, Your Honor, although the United States agrees with the rationale and the ultimate decision of the District Court—
JACOBS, C.J.: Well, why did you file a notice of appeal?
MR. DELERY: So it is consistent with the pattern that was followed in the Chadha case, for example, because here, the judgment runs against the executive branch. The executive branch is ordered to pay $363,000. The determination has been made by the President and the Attorney General that the law will be enforced, Section 3 of DOMA will be enforced pending final judicial resolution of this matter.
JACOBS, C.J.: Well, that would certainly make the United States a defendant and I am not sure I know why it would make it an appellant, if it‘s satisfied with the adoption of its arguments in the court below it.
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MR. DELERY: So, I think again here while that is true as to the rationale of the decision, the Chadha case and the Lovett case, for example both by the Supreme Court, indicated that where the executive branch agrees with an underlying judgment of unconstitutionality of a federal statute, but is nevertheless enforcing it, as was the case in Chadha, then it has both appropriate Article 3 standing for continuing to appeal and is the proper party to invoke the Appellate Court‘s further review of this matter. And so we think that that‘s the basis for being on the side of the appellant here in this case.
JACOBS, C.J.: Basically your role is to stimulate decision making in the appellate court. That‘s what you are saying?
MR. DELERY: In part, but it is also the case that the government actually is, the executive branch is the entity against whom the judgment is running and given the determination by the president and the attorney general to enforce Section 3 pending final resolution, you know as was the case in Chadha, you know, the government is not taking the action that it is ordered to by the District Court judgment and, therefore, that‘s the basis for appeal.
But moving to the standard of scrutiny, this is a question that this Court has not decided. We submit that the Court should consider the Supreme Court‘s established factors and hold the classifications based on sexual orientation are inherently suspect and warrant heightened scrutiny. Gay and lesbian people have been subject to a long and deep history of discrimination which continues to this day. Sexual orientation is a fundamental
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aspect of a person‘s identity and it says nothing about an individual‘s ability to contribute productively to society.
So while other appellate courts have applied rational basis review they did so--
JACOBS, C.J.: I‘m sorry, but when you refer to fundamental aspect of a person‘s identity, that doesn‘t seem to be part of any test other than in the asylum area as to whether somebody is being persecuted for something that they can‘t change or shouldn‘t be expected to alter.
MR. DELERY: Right, I think here--
JACOBS, C.J.: That‘s coming from another county.
MR. DELERY: I think here it bears on what has been called immutability or a distinguishing characteristic, that aspect of the Supreme Court‘s test. As the Supreme Court indicated in Lawrence, sexual orientation is deeply ingrained, whatever the debate about its precise origins and is a fundamental aspect of identity, its expression is an integral part of human freedom. So by rejecting for example the status/conduct distinction in Lawrence and the later Christian Legal Society case, the Court has acknowledged that even beyond the overwhelming consensus of the scientific community and the leading organizations on this question, however you parse the origins, it is a deeply engrained aspect of one‘s identity.
So the other--
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DRONEY, J.: I have a question - -
MR. DELERY: Certainly.
DRONEY, J.: What is your position on - what the level of enhanced scrutiny should be intermediate, strict, and how you make that distinction.
MR. DELERY: I think what we have said in our brief, I believe it is a footnote on page 36, is that we think that the heightened scrutiny factors suggest greater than rational basis review and given that it is not necessary to distinguish in this case for resolving it, we haven‘t taken a position on whether it is strict or intermediate. Intermediate would be sufficient here, and the factors point at least that far.
And I think if the Court looks at, which no federal Court of Appeals has done in approximately twenty years, the established heightened scrutiny factors, they all point in favor of recognizing sexual orientation as a classification that deserves heightened scrutiny. History of discrimination has been common ground from the courts that have looked at this question. As far as I know no court has concluded that there isn‘t a sufficient history of discrimination here. It starts with the proposition that sexual intimacy between same sex partners was criminalized until recently with far reaching consequences. As the Supreme Court in Lawrence indicated, that was an invitation to public and private discrimination in a whole range of ways.
As a result, gay and lesbian people were deemed unfit for federal employment, security clearances military service. There was employment
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discrimination at state and local government levels and in the private sector, child custody and visitation rights over time have been denied and this history of discrimination continues to today. But it is also a consideration that has no bearing on an individual‘s ability to perform or contribute to society.
Gay and lesbian people contribute in all walks of life and even and did.
JACOBS, C.J.: Look, I mean, that‘s you know you are pressing on an open door, but do we look at that in terms of the ability for people to function productively generally in life or do we look at it in terms of whether people can in this instance procreate as a married couple?
MR. DELERY: I think what the Supreme Court has done is looked to whether a particular characteristic says anything about whether it is-whether it is usually a sensible ground for differentiating among people in government action. So the court in Fontiero and Cleburne for example—
JACOBS, C.J.: Your argument is you weren‘t looking at the particular disability essentially that the government is trying to impose in a given case, you look at people‘s general capacity to make a contribution.
MR. DELERY: Right. On the suspect class or heightened scrutiny inquiry, the second would be potentially relevant when you are looking at the means and split of the particular statute, but in terms of deciding whether heightened scrutiny is appropriate, it is a more general inquiry as the Supreme Court has said because the purpose of
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heightened scrutiny is, in effect, where there is some reason to be suspicious of government action that targets a historically disadvantaged group, for example. Heightened scrutiny has the effect of smoking out improper rationales and insuring that the reasons given for a particular government action are significant and proper purposes.
And so at the level of examining whether heightened scrutiny is appropriate it is a more general inquiry.
And then on political powerlessness, which was discussed earlier--
JACOBS, C.J.: Yes, it is hard--isn‘t it hard for you to argue political powerlessness when you know the administration declines to argue the other side of this, which is why you are here?
MR. DELERY: That is true, the President and the Attorney General have made a constitutional judgment as to heightened scrutiny.
JACOBS, C.J.: Well, there is substantial power; they put that power behind this point of view.
MR. DELERY: So a couple of points on this, Your Honor.
JACOBS, C.J.: So your presence here is like an argument against your argument.
MR. DELERY: Perhaps. But I think if you look to the gender context, for example, in the 1970‘s when the Supreme Court recognized gender as appropriate for intermediate scrutiny, women had
a37

made substantial gains in a range of antidiscrimination efforts. So, for example, the 19th Amendment had provided the right to vote, Title VII had already banned discrimination at that point. So the court hasn‘t viewed this as an all or nothing factor, but if you look at where things currently stand, it is still the case that the rights of gay and lesbian people usually lose when they are put up for a vote. Efforts to combat discrimination against gay and lesbian people including very recently have often led to significant political backlash including in Tennessee just last year when efforts to include antidiscrimination protections in state law were repealed.
So it‘s sort of, it is a question of the baseline and where you start and certainly while progress has been made that was the case at the time of gender in the 1970‘s and the court did not view that as dispositive.
So for those reasons we think heightened scrutiny is appropriate, sexual orientation serves a-should be viewed as a suspect classification and therefore a law like Section 3 of DOMA, which targets them must be substantially related to an important governmental objective.
And under heightened scrutiny the court looks not to a rationale that might be invented during the course of litigation, but to the actual reasons that the legislature gave for the action and also looks closely, as I indicated before, at the fit between the means chosen and the supposed ends to make sure that the law is based on reasoned analysis, significant and proper purpose and not disapproval of a particular group.
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I think here Section 3 is not as BLAG would have it an ordinary exercise in line drawing for economic or tax legislation, one that just happens to disadvantage some people, and not others. On the contrary, if you look at the legislative history, I think it is crystal clear that it was motivated in significant part by disapproval of gay and lesbian people in their intimate and family relationships and so--
STRAUB, J.: Can you tell that to the Congress in 1996--
MR. DELERY: Did the government say that?
STRAUB, J.: - - tell that to the Congress in 1996, that which you just now told us?
MR. DELERY: No, Your Honor, the Department at the time said in a couple of different letters to members of Congress during the legislative process that at the time it predicted that the courts would uphold section 3 of DOMA.
STRAUB, J.: And you thereafter argued in favor of the constitutionality of the statute - - is that right?
MR. DELERY: That is true, over the years.
STRAUB, J.: As late as 2010, is that correct?
MR. DELERY: Yes. That‘s correct.
STRAUB, J.: What is it that changed your view of this?
MR. DELERY: What changed were two things. One was an evaluation of the appropriate
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level of scrutiny that applies to claims based on sexual orientation. The defense of the law had been mounted under a rational basis standard and as indicated the government has concluded that the appropriate standard here is heightened scrutiny. And second, at a basic level this is now a decision that has been made by the Attorney General and by the President in the constitutional judgment and so the position in the cases are now dictated by the Chief Executive here.
STRAUB, J.: And now finally you concede that if rational basis was used, is utilized here, a reasonable argument can be made to uphold the constitutionality of the statute? Within that context, which are the interests advanced, are you referring to the other table, that would make its argument reasonable for constitutionality?
MR. DELERY: Okay, so just to clarify on that point, Your Honor, we have said as indicated in the Attorney General‘s letter to Congress that I do think a reasonable argument can be proffered under rational basis. That‘s not the same as saying that we think it should prevail. On that, the government has not taken a position.
STRAUB, J.: In the context of that statement, tell me which interests advanced the constitutionality would make the argument reasonable?
MR. DELERY: I think the answer to that, probably the best place to look is in the first superseded brief that the government filed in the First Circuit case. And so those briefly, I think, the arguments there were that maintaining the status
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quo and a degree of uniformity for federal benefits, coupled with preserving room for state policy development on this question could provide a reasonable argument.
STRAUB, J.: Did you advance any other - -
MR. DELERY: Those were the--that‘s my summary of the arguments that were in the brief.
STRAUB, J.: Are there other issues advanced by the United States government?
MR. DELERY: Over time in cases, not in that case.
STRAUB, J.: That you just told me about.
MR. DELERY: No, not in that case. Thank you.
DRONEY, J.: Let me just ask about Baker versus Nelson. The attorney general in his letter to the speaker didn‘t say anything about Baker versus Nelson. What‘s your view on how Baker versus Nelson applies to the work of this Court?
MR. DELERY: So I think we don‘t think Baker controls the outcome of this case. I think the proper analysis is that summary dispositions like Baker should be narrowly construed. As the Court has indicated they are precedential, but they are binding only on the precise issues presented and necessarily decided. The reason being because you know a one sentence summary decision it is usually not apparent what the underlying rationales might or might not have been. So here the precise claim
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that we have before the Court was not presented or necessarily decided. It is not the same equal protection claim because here we are dealing with a denial of federal benefits to couples who are already validly married under state law. There, it was whether states had to give a marriage license. And neither the jurisdictional statement presented to the Supreme Court or the State Supreme Court decision from which the party was appealing, presented the suspect class or heightened scrutiny issue for sexual orientation. There is no indication that the Supreme Court decided it, they didn‘t have to decide it and we‘d submit it would over read Baker given later developments in the law to give it binding effect. In fact, it is not even clear what the classification was that the plaintiff was advocating in that case. In the jurisdictional statement, this is at page 702 of the appendix the statement is made that the discrimination in this case is one of gender. It was a different time, it was a different conception of the legal claim and like the First Circuit and like other courts that have considered this question, we don‘t think it is preclusive on this effect.
JACOBS, C.J.: Thank you.
MR. DELERY: Okay, thank you.
JACOBS, C.J.: We‘ll hear rebuttal.
MR. CLEMENT: Thank you, Your Honors, just a few points in rebuttal. First, just on what was just discussed about Baker, I would invite you to read the jurisdictional statement. I think it is clear that the appellant there was arguing both gender discrimination and sexual orientation. So I think that Baker would be binding on both. Also, as I read
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the jurisdictional statement, I thought that they were arguing for heightened scrutiny, but as I said, you could read that for yourself and make your own judgment on that. Just a few other points, one Ms. Kaplan mentioned the issue of whether saving money alone is enough. Well, obviously we think we have more than saving money here standing alone. But I would emphasize that I do think actually saving money enough is a rational basis. I think you know one of the things that cite for the proposition that‘s not is a dissenting opinion in the recent Armour against Indianapolis case. Now the majority didn‘t say saving money alone is enough. As I understand the law here, saving money is a rational basis. You can‘t go about that rational basis in an utterly irrational way. So if you say you are going to save money by giving--you know not giving some benefits to people with blue eyes or something, that might be irrational government action, but it is not because saving money isn‘t a rational basis for government action. Of course, as I say, it is a little bit of an academic point because the saving money rationale is combined with other things, not just the other rationales we offer, but this is a situation where Congress is acting to do here is to preserve the scope of the benefit programs the way they had always been. They had always been that way based on the uniform state law as opposed to a federal definition, but the federal definition had the basis of not opening these programs up to new individuals.
And certainly, as I understand the law, a decision by the government not to expand a class of beneficiaries based on a rationale of saving money is the kind of decision Congress makes every day and is sufficiently rational to withstand rational basis
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review. Obviously, one of the other bases that supports this as a rational bases that I think has been discussed the most so I will focus on it, is uniformity. Now a couple of things were said about uniformity. First there is this point about the couple moving to North Carolina and losing their tax status. Well, that‘s precisely the kind of thing that Congress can decide, well that doesn‘t make any sense. We want to treat people in New York and North Carolina exactly the same way. So we are going to have a uniform definition. Now the next response is, but Congress has never done this with respect to marital status before. Well, first that‘s not true. Congress does this with respect to it overrides marital decisions in specific context based on concerns about fraud. Back in the 19th century, it conditioned the admission of territories to statehood on overriding their decisions about what the definition of marriage was going to be. So if you want to go way back there are precedents as well, but most importantly, Congress never confronted a situation like it did in 1996, where they were going form a situation where they could have uniformity and deference to the states at once because every state had the same rule and they recognized that that was going to change. They had to choose between deferring to the state definition and maintaining a policy of uniformity, I think the decision to choose uniformity over deference is certainly within the realm of rational basis.
Thank you, Your Honors.
JACOBS, C.J.: Thank you. Thank you all. We will reserve decision.
[END RECORDING]
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C E R T I F I C A T E I, Ann Arundel, certify that the foregoing transcript is a true record of said proceedings, that I am not connected by blood or marriage with any of the parties herein nor interested directly or indirectly in the matter in controversy, nor am I in the employ of the counsel. /s/ Ann Arundel Date 10/2/12
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Appendix B
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
____________
No. 10 Civ. 8435 (BSJ) (JCF)
EDITH SCHLAIN WINDSOR, PLAINTIFF
v.
THE UNITED STATES OF AMERICA, ET AL.,
DEFENDANTS
____________
THE BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES‘
AMENDED RESPONSE TO PLAINTIFF‘S FIRST REQUESTS FOR ADMISSION ____________
Pursuant to the Court‘s order of July 28, 2011, in this case, and to Rules 26 and 36 of the Federal Rules of Civil Procedure, Interventor-Defendant The Bipartisan Legal Advisory Group of the U.S. House of Representatives (―Defendant‖) makes the following supplemental response to Plaintiff‘s First Requests for Admission.
Request for Admission 1. Admit that if, at the time of her, death, Thea Spyer had been married to a man instead of a woman, who was a U.S. citizen and who survived Thea Spyer‘s death, her estate would have qualified for the estate tax marital deduction, 26 U.S.C.
a46

§ 2056(a), and would not have been liable for any federal estate tax. Response: Defendant admits that Plaintiff has submitted documents that, if accurate, establish the eligibility of Spyer‘s estate for the estate tax marital deduction and that the estate would not have been liable for federal estate tax, if Spyer had been married to a surviving male U.S. citizen at the time of her death.
/s/ H. Christopher Bartolomucci Paul D. Clement H. Christopher Bartolomucci Conor B. Dugan Nicholas J. Nelson BANCROFT PLLC 1919 M Street, N.W., Suite 470 Washington, D.C. 20036 (202) 234-0090
Counsel for DefendantIntervenor The Bipartisan Legal Advisory Group of the U.S. House of Representatives Dated: August 1, 2011
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 No. 12-307

In The
Supreme Court of the United States
________________
THE UNITED STATES OF AMERICA, Petitioner,
v. EDITH SCHLAIN WINDSOR
and BIPARTISAN LEGAL ADVISORY GROUP OF THE UNITED STATES HOUSE OF REPRESENTATIVES,
Respondents. ________________
On Petition for a Writ of Certiorari Before Judgment to the United States Court of App_e_a__ls__f_o_r__th__e__S_e_cond Circuit

BRIE_F__I_N___O_P__P__O_S__I_TION

KERRY W. KIRCHER

PAUL D. CLEMENT

General Counsel

Counsel of Record

WILLIAM PITTARD

H. CHRISTOPHER BARTOLOMUCCI

Deputy General Counsel NICHOLAS J. NELSON

CHRISTINE DAVENPORT MICHAEL H. MCGINLEY

Senior Assistant Counsel BANCROFT PLLC

TODD B. TATELMAN

1919 M Street, N.W.

MARY BETH WALKER

Suite 470

ELENI M. ROUMEL

Washington, D.C. 20036

Assistant Counsels

(202) 234-0090

OFFICE OF GENERAL COUNSEL pclement@bancroftpllc.com

U.S. HOUSE OF

REPRESENTATIVES

219 Cannon House Office Bldg.

Washington, D.C. 20515

(202) 225-9700

Counsel for Respondent

QUESTIONS PRESENTED
Section 3 of the Defense of Marriage Act (“DOMA”) provides that for purposes of federal law “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 wife.” 1 U.S.C. § 7.
The questions presented are:
(1) Does Section 3 of DOMA violate the equal protection component of the Due Process Clause of the Fifth Amendment?
(2) Does Plaintiff-Respondent have standing to challenge DOMA given that her standing is premised on a Canadian marriage certificate obtained at a time when New York law did not recognize same-sex marriage?
(3) Petitioner was sued because of the handling of a tax return by a federal agency that does not have general responsibility for administering DOMA. Under those circumstances, when the executive branch argues that a federal statute is unconstitutional and prevails in the lower courts, and where the House of Representatives has intervened to defend the statute, does the executive branch have prudential standing to seek this Court’s review of the judgment it requested?

ii
PARTIES TO THE PROCEEDING
Respondent the Bipartisan Legal Advisory Group of the U.S. House of Representatives (“House”) was the intervenor-defendant in the district court and an appellant in the Second Circuit.* The statement by the Department of Justice (“Department”) in its Petition that the House intervened merely “to present arguments” in favor of DOMA, see Pet. (II), is inaccurate. Although the Department argued in the district court that the House’s intervention should be limited to those terms, the district court granted the House intervention as a party-defendant to fully litigate DOMA’s constitutionality under equal protection principles.
* The United States House of Representatives has articulated its institutional position in litigation matters through a fivemember bipartisan leadership group since at least the early 1980’s (although the formulation of the group’s name has changed somewhat over time). Since 1993, the House rules have formally acknowledged and referred to the Bipartisan Legal Advisory Group, as such, in connection with its function of providing direction to the Office of the General Counsel. See, e.g., Rule I.11, Rules of the House of Representatives, 103rd Cong. (1993); Rule II.8, Rules of the House of Representatives, 112th Cong. (2011). While the group seeks consensus whenever possible, it, like the institution it represents, functions on a majoritarian basis when consensus cannot be achieved. The Bipartisan Legal Advisory Group currently is comprised of the Honorable John A. Boehner, Speaker of the House, the Honorable Eric Cantor, Majority Leader, the Honorable Kevin McCarthy, Majority Whip, the Honorable Nancy Pelosi, Democratic Leader, and the Honorable Steny H. Hoyer, Democratic Whip. The Democratic Leader and the Democratic Whip have declined to support the position taken by the Group on the merits of DOMA Section 3’s constitutionality in this and other cases.

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Petitioner the United States, as represented by the Department of Justice, was a defendant in the district court and an appellant in the Second Circuit.
Respondent Edith Schlain Windsor was the plaintiff in the district court and the appellee in the Second Circuit.

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TABLE OF CONTENTS QUESTIONS PRESENTED ....................................... i PARTIES TO THE PROCEEDING........................... ii TABLE OF AUTHORITIES ...................................... v INTRODUCTION ...................................................... 1 STATEMENT OF THE CASE ................................... 2 1. The Defense of Marriage Act .............................. 2 2. The Justice Department’s About-Face and
the House’s Intervention .................................... 6 3. History of This Case............................................ 8
a. Procedural History ....................................... 8 b. The District Court’s Decision ..................... 10 c. Subsequent Proceedings............................. 12 4. Other Pending Petitions Involving DOMA Section 3 ............................................................ 13 REASONS FOR DENYING THE WRIT ................. 14 I. Gill Presents Exactly the Same Question Regarding DOMA’s Constitutionality. ............. 16 II. Petitioner’s Article III Standing Turns on a Question of State Law That Has Been Expressly Reserved by the New York Court of Appeals, and Presents a Vehicle Problem Unique to This Case. .......................... 18 III. Because Petitioner Prevailed Below, Granting the Petition Would Create Unnecessary Procedural and Substantive Complications.................................................... 21

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IV. The Department Operates as a De Facto Amicus in This Case and That Status Is Best Accommodated by Granting the House’s Gill Petition Alone............................... 25
CONCLUSION ......................................................... 26

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TABLE OF AUTHORITIES
Cases
Adams v. Howerton, 486 F. Supp. 1119 (C.D. Cal. 1980), aff’d, 673 F.2d 1036 (9th Cir. 1982), cert. denied, 458 U.S. 1111 (1982) ...................... 5
Baehr v. Lewin, 852 P.2d 44 (Haw. 1993) ..................................... 4
Baker v. Nelson, 409 U.S. 810 (1972) ........................................... 10
Camreta v. Greene, 131 S. Ct. 2020 (2011) ................................. 21, 22
Coleman v. Paccar, Inc., 424 U.S. 1301 (1976) ......................................... 14
Dean v. District of Columbia, 653 A.2d 307 (D.C. 1995) .................................... 5
Deposit Guar. Nat’l Bank v. Roper, 445 U.S. 326 (1980) ........................................... 21
Dixon v. Duffy, 344 U.S. 143 (1952) ........................................... 18
Godfrey v. Spano, 920 N.E.2d 328 (N.Y. 2009) .............................. 20
Golinski v. OPM, 781 F. Supp. 2d 967 (N.D. Cal. 2012) ............... 13
Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006) .............................. 8, 20
Hunt v. Ake, No. 04-cv-1852 (M.D. Fla. Jan. 20, 2005)........... 6
INS v. Chadha, 462 U.S. 919 (1983) ..................................... 21, 22

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In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004) ............ 6
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ........................................... 19
Massachusetts v. U.S. Dep’t of HHS, 682 F.3d 1 (1st Cir. 2012) ............................. 2, 13
Murphy v. Ramsey, 114 U.S. 15 (1885) ............................................... 5
Pedersen v. OPM, No. 10-cv-1750, 2012 WL 3113883 (D. Conn. July 31, 2012) ................................... 13
Smelt v. Cnty. of Orange, 374 F. Supp. 2d 861 (C.D. Cal. 2005), aff’d in part and vacated in part for lack of standing, 447 F.3d 673 (9th Cir. 2006), cert. denied, 549 U.S. 959 (2006) .................. 6, 19
Sullivan v. Bush, No. 04-cv-21118 (S.D. Fla. Mar. 16, 2005) ......... 6
Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005)............... 6
Constitutional Provisions U.S. Const. art. II, § 3 ................................................ 6 Statutes 1 U.S.C. § 7 .............................................................. i, 2
5 U.S.C. § 8101 ........................................................... 4 5 U.S.C. § 8341(a)....................................................... 4
8 U.S.C. § 1186a(b)(1) ................................................ 4 I.R.C. § 2(b)(2) ............................................................ 4
I.R.C. § 7703(b)........................................................... 4 42 U.S.C. § 1382c(d)(2)............................................... 4

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42 U.S.C. § 416 ........................................................... 4
Revenue Act of 1921, § 223(b), 42 Stat. 227.............. 5
Veterans and Survivors Pension Interim Adjustment Act of 1975, Pub. L. No. 94-169, Title I, § 101(31), 89 Stat. 1013, codified at 38 U.S.C. § 101(31) 4, 5
Rules
U.S. Dep’t of Labor, Final Rule, The Family And Medical Leave Act of 1993, 60 Fed. Reg. 2,180, 2,190-91 (Jan. 6, 1995) ....... 5
Rule I.11, Rules of the House of Representatives, 103rd Cong. (1993) .............................................. ii
Rule II.8, Rules of the House of Representatives, 112th Cong. (2011) .............................................. ii
Other Authorities
142 Cong. Rec. 16969 (1996)...................................... 5
142 Cong. Rec. 17094 (1996)...................................... 2
Defense of Marriage Act: Hearing on H.R. 3396 Before the Subcomm. On the Constitution of the H. Comm. On the Judiciary, 104th Cong. (1996) .............................................. 3
Defense of Marriage Act: Hearing on S. 1740 Before the S. Comm. on the Judiciary, 104th Cong. (1996) .............................................. 3
H.R. Rep. No. 104-664 (1996), reprinted in 1996 U.S.C.C.A.N. 2905 ............. 3, 5
Letter from Andrew Fois, Asst. Att’y Gen., to Rep. Canady (May 29, 1996), reprinted in H.R. Rep. No. 104-664, 34 (1996), reprinted in 1996 U.S.C.C.A.N. 2905...................................... 3

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Letter from Andrew Fois, Asst. Att'y Gen., to Rep. Hyde (May 14, 1996), reprinted in H.R. Rep. No. 104-664 (1996), reprinted in 1996 U.S.C.C.A.N 2905....................................... 3
Letter from Andrew Fois, Asst. Att'y Gen., to Sen. Hatch (July 9, 1996), reprinted in The Defense of Marriage Act: Hearing on S. 1740 Before the S. Comm. on the Judiciary, 104th Cong. (1996) .............................................. 3
Letter from Att’y Gen. Eric H. Holder, Jr., to the Hon. John A. Boehner, Speaker of the House (Feb. 23, 2011), http://www.justice. gov/opa/pr/2011/February/11-ag-223.html ..... 6, 7
Thomas Kaplan, After Long Wait, Gay Couples Marry in New York, N.Y. Times (July 23, 2011) http://www.nytimes. com/2011/07/24/nyregion/across-new-yorkhundreds-of-gay-couples-to-marry-onsunday.html ...................................................... 18

INTRODUCTION
The Petition in this case is the latest in a series of extraordinary Petitions for a Writ of Certiorari Before Judgment that the Department has filed seeking review of DOMA’s constitutionality. The Petitions are extraordinary both because they sought certiorari before judgment, and because they are totally unnecessary. The important issue of the constitutionality of Section 3 of DOMA is squarely presented to this Court in the House’s earlier-filed Petition for Certiorari after judgment in No. 12-13, Bipartisan Legal Advisory Group of the U.S. House of Representatives v. Gill. That Petition was filed by the party whose arguments did not prevail in court and comes in the ordinary course following the judgment and opinion of the Court of Appeals for the First Circuit. There is no reason to take the extraordinary step of granting a petition for certiorari filed by a prevailing party before judgment in the court of appeals, when the exact same issue is better presented in a pending petition for certiorari after judgment filed by the party genuinely aggrieved by the lower court’s judgment.
Granting this Petition would accomplish nothing beyond needlessly complicating this Court’s review on the merits. Plaintiff-Respondent’s standing to challenge DOMA depends on a sensitive question of New York law regarding the recognition of foreign same-sex marriage certificates—a question which the New York Court of Appeals has expressly reserved. Moreover, Petitioner prevailed in the courts below. Having prevailed below, there is certainly no reason for the Department to get the benefit of an opening and reply brief. Indeed, there

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is a substantial question whether the Department even has appellate standing to file a Petition here. But at a minimum, to preserve the proper alignment of the parties, if the Court were to grant the Department’s Petition, it would have to undo the effect of its decision to grant certiorari to the Department by realigning the parties and setting a unique briefing schedule that properly provides an opening and reply brief to the House and realigns the Department with the plaintiff whose arguments it fully embraces. There is no need for any of that. The straightforward course here is also the correct one: This Court should grant the House’s Petition in No. 12-13 to review the decision and judgment of the First Circuit and deny this Petition.1
STATEMENT OF THE CASE
1. The Defense of Marriage Act
The Defense of Marriage Act of 1996 “was enacted with strong majorities in both Houses [of Congress] and signed into law by President Clinton.” Massachusetts v. U.S. Dep’t of HHS, 682 F.3d 1, 6 (1st Cir. 2012). The House of Representatives voted 342-67 to enact DOMA, and the Senate voted 85-14 to do so. See 142 Cong. Rec. 17094-95 (1996) (House); id. at 22467 (Senate).
Section 3 of the Act defines “marriage” as the legal union of one man and one woman and “spouse” as a person of the opposite sex who is a husband or wife. 1 U.S.C. § 7. These definitions apply for purposes of
1 For the same and additional reasons, the Court should also deny the other premature petitions, see infra pp. 13-14, and the Department’s unnecessary Petition in No. 12-15. See the House’s Br. in Opp., No. 12-15 (Aug. 31, 2012).

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federal law only. DOMA does not bar or invalidate any state-law marriage, but leaves states free to decide whether they will recognize same-sex marriage. DOMA simply asserts the federal government’s right as a separate sovereign to provide its own definition for purposes of federal programs and funding.
While Congress was considering DOMA, it requested the opinion of the Department of Justice on the bill’s constitutionality, and the Department three times reassured Congress by letter that DOMA was constitutional. See Letters from Andrew Fois, Asst. Att’y Gen., to Rep. Canady (May 29, 1996), reprinted in H.R. Rep. No. 104-664, 34 (1996), reprinted in 1996 U.S.C.C.A.N. 2905 (“House Rep.”); to Rep. Hyde (May 14, 1996), reprinted in House Rep. 33-34; and to Sen. Hatch (July 9, 1996), reprinted in The Defense of Marriage Act: Hearing on S. 1740 Before the S. Comm. on the Judiciary, 104th Cong. at 2 (1996) (“Senate Hrg.”). Congress also received and considered other expert advice on DOMA’s constitutionality and concluded that DOMA is constitutional. E.g., House Rep. 33 (DOMA “plainly constitutional”); Defense of Marriage Act: Hearing on H.R. 3396 Before the Subcomm. On the Constitution of the H. Comm. On the Judiciary, 104th Cong. 87-117 (1996) (testimony of Professor Hadley Arkes); Senate Hrg. 1, 2 (Sen. Hatch) (DOMA “is a constitutional piece of legislation” and “a legitimate exercise of Congress’ power”); id. at 2341 (testimony of Professor Lynn D. Wardle); id. at 56-59 (letter from Professor Michael W. McConnell).
Congress, of course, did not invent the meanings of the words “marriage” and “spouse” when it enacted

4
DOMA in 1996. Instead, it adopted the traditional definitions of those terms. Nor was the timing of Congress’ decision a fortuity. Instead, Congress acted to ensure that Hawaii’s novel and then-recent decision to take steps toward redefining marriage, see Baehr v. Lewin, 852 P.2d 44 (Haw. 1993), did not automatically dictate the definition in other jurisdictions. Thus, Section 2 of DOMA allowed each state to decide whether to retain the traditional definition without having another jurisdiction’s decision imposed via full faith and credit principles, and Section 3 preserved the federal government’s ability to retain the traditional definition for federal law purposes. Although Congress often has made eligibility for federal marital benefits or duties turn on a couple’s state-law marital status, it also has a long history of supplying federal marital definitions in various contexts—definitions that always have been controlling for purposes of federal law, without regard to the couple’s status under state law.2 In
2 See, e.g., I.R.C. § 2(b)(2) (deeming persons unmarried who are separated from their spouse or whose spouse is a nonresident alien); I.R.C. § 7703(b) (excluding some couples “living apart” from federal marriage definition for tax purposes); Veterans and Survivors Pension Interim Adjustment Act of 1975, Pub. L. No. 94-169, Title I, § 101(31), 89 Stat. 1013, codified at 38 U.S.C. § 101(31) (for purposes of veterans’ benefits, “‘spouse’ means a person of the opposite sex”); 42 U.S.C. § 416 (defining “spouse,” “wife,” “husband,” “widow,” “widower,” and “divorce,” for social-security purposes); 42 U.S.C. § 1382c(d)(2) (recognizing common-law marriage for purposes of social security benefits without regard to state recognition); 5 U.S.C. §§ 8101 (6), (11), 8341(a)(1)(A)-(a)(2)(A) (federal employee-benefits statutes); 8 U.S.C. § 1186a(b)(1) (anti-fraud criteria regarding marriage in immigration law context).

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enacting DOMA, Congress merely reaffirmed what it has always meant when using the words “marriage” and “spouse” in federal law—and what courts and the Executive Branch have always understood it to mean: A traditional male-female couple.3 It further clarified its understanding that these terms would have that meaning for purposes of federal law regardless of how states might choose to redefine marriage for purposes of their own law.4
3 See, e.g., Revenue Act of 1921, § 223(b), 42 Stat. 227 (permitting “a husband and wife living together” to file a joint tax return; cf. I.R.C. § 6013(a) (“A husband and wife may make a single return jointly of income taxes”)); 38 U.S.C. § 101(31) (“The term ‘spouse’ means a person of the opposite sex”); U.S. Dep’t of Labor, Final Rule, The Family And Medical Leave Act of 1993, 60 Fed. Reg. 2,180, 2,190-91 (Jan. 6, 1995) (rejecting, as inconsistent with congressional intent, proposed definition of “spouse” that would have included “same-sex relationships”); Adams v. Howerton, 486 F. Supp. 1119, 1123 (C.D. Cal. 1980) (“Congress, as a matter of federal law, did not intend that a person of one sex could be a ‘spouse’ to a person of the same sex for immigration law purposes”), aff’d, 673 F.2d 1036 (9th Cir. 1982), cert. denied, 458 U.S. 1111 (1982); Dean v. District of Columbia, 653 A.2d 307, 314 (D.C. 1995) (Congress, in enacting the District of Columbia’s marriage statute of 1901, intended “that ‘marriage’ is limited to opposite-sex couples”); see also Murphy v. Ramsey, 114 U.S. 15, 45 (1885) (referring to “the union for life of one man and one woman in the holy estate of matrimony” as “the sure foundation of all that is stable and noble in our civilization”).
4 See House Rep. 10 (“[I]t can be stated with certainty that none of the federal statutes or regulations that use the words ‘marriage’ or ‘spouse’ were thought by even a single Member of Congress to refer to same-sex couples.”); id. at 30 (“Section 3 merely restates the current understanding of what those terms mean for purposes of federal law.”); 142 Cong. Rec. 16969 (1996) (Rep. Canady) (“Section 3 changes nothing; it simply reaffirms existing law.”).

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2. The Justice Department’s About-Face and the House’s Intervention
After DOMA’s enactment, discharging the Executive’s constitutional duty to “take Care that the Laws be faithfully executed,” U.S. Const. art. II, § 3, the Department of Justice during the Bush Administration successfully defended DOMA against several constitutional challenges, prevailing in every case to reach final judgment.5 The Department continued to defend DOMA during the first two years of the current Administration.
In February 2011, however, the Administration abruptly announced its intent to refuse to defend DOMA’s constitutionality. Letter from Att’y Gen. Eric H. Holder, Jr., to the Hon. John A. Boehner, Speaker of the House (Feb. 23, 2011), http://www.justice.gov/opa/pr/2011/February/11-ag223.html. Attorney General Holder stated that he and President Obama were of the view “that a heightened standard [of review] should apply [to DOMA], that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3.” Id.
The Attorney General acknowledged that, in light of “the respect appropriately due to a coequal branch of government,” the Department “has a longstanding
5 See Smelt v. Cnty. of Orange, 374 F. Supp. 2d 861 (C.D. Cal. 2005), aff’d in part and vacated in part for lack of standing, 447 F.3d 673 (9th Cir. 2006), cert. denied, 549 U.S. 959 (2006); Sullivan v. Bush, No. 04-cv-21118 (S.D. Fla. Mar. 16, 2005) (granting voluntary dismissal after the Department moved to dismiss); Hunt v. Ake, No. 04-cv-1852 (M.D. Fla. Jan. 20, 2005); Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005); In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004).

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practice of defending the constitutionality of dulyenacted statutes if reasonable arguments can be made in their defense.” Id. He did not, however, apply that standard to DOMA. On the contrary, he conceded that every Circuit to consider the issue (i.e., eleven Circuits) had held that sexual orientation classifications are subject only to rational basis review, and he acknowledged that “a reasonable argument for Section 3’s constitutionality may be proffered under [the rational basis] standard.” Id.
In response, the House intervened as a partydefendant in the various cases nationwide involving equal-protection challenges to DOMA’s constitutionality. Notwithstanding that the Holder Letter said only that the Department would not defend DOMA Section 3, the Department went further and affirmatively attacked Section 3 in court and accused the Congress that enacted DOMA— many of whose Members still serve—of doing so out of “animus.”6 The Department took this position even though DOMA was the very same statute (i)
6 See Br. for the United States, Windsor, Nos. 12-2335 & 122435 (2d Cir. Aug. 10, 2012). The Department has filed substantive briefs in numerous other DOMA cases making this same argument. See briefs in Golinski v. OPM, Nos. 12-15388 & 12-15409 (9th Cir. July 3, 2012); Massachusetts v. U.S. Dep’t of HHS, Nos. 10-2204, 10-2207, & 10-2214 (1st Cir. Sept. 22, 2011); Revelis v. Napolitano, No. 1:11-cv-1991 (N.D. Ill. Apr. 23, 2012); Dragovich v. U.S. Dep’t of Treasury, No. 4:10-cv-1564 (N.D. Cal. Jan. 19, 2012); Cozen O’Connor, P.C. v. Tobits, No. 2:11-cv-45 (E.D. Pa. Dec. 30, 2011); Bishop v. United States, No. 4:04-cv-848 (N.D. Okla. Nov. 18, 2011); Pedersen v. OPM, No. 3:10-cv-1750 (D. Conn. Sept. 14, 2011); Lui v. Holder, No. 2:11cv-1267 (C.D. Cal. Sept. 2, 2011).

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that the Department had defended a few short months before, and (ii) that the Department acknowledges is constitutional under the equal protection standard that applies in the great majority of Circuits.
3. History of This Case
a. Procedural History
Plaintiff-Respondent obtained a marriage certificate with the late Thea Clara Spyer in Ontario, Canada in 2007. At that time, New York did not issue marriage certificates to same-sex couples. See Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006). Plaintiff-Respondent and Ms. Spyer were domiciled in the State of New York at all relevant times. Ms. Spyer passed away in 2009, naming Plaintiff-Respondent the executor and sole beneficiary of her estate. After paying more than $363,000 in federal estate taxes, PlaintiffRespondent, as executor, sought a refund of that amount on the theory that the estate was entitled to the marital deduction. Recognizing that federal law offers this deduction only when the beneficiary of the estate is a “spouse” within the meaning of federal tax law and DOMA, Plaintiff-Respondent claimed that the failure to extend this favorable treatment to her violates the equal protection requirements of the Fifth Amendment. The IRS denied the refund, and Plaintiff-Respondent filed this suit in her capacity as executor of the estate. Her suit is premised on the notion that New York would have recognized the 2007 Canadian marriage certificate, even though New York did not issue marriage certificates to same-sex couples until after Ms. Spyer’s passing.

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This suit was filed before the Department ceased defending DOMA, and the district court allowed Petitioner a period of four months to move to dismiss. Order & Revised Sched. Order, Windsor, No. 10-cv-8435 (S.D.N.Y. Dec. 3, 2010 & Jan. 28, 2011). Instead of filing such a motion, however, the Department ultimately notified the court that it would not defend DOMA’s constitutionality against equal-protection attack, Notice to Ct., Windsor (S.D.N.Y. Feb. 25, 2011), and the House sought and was granted leave to intervene. Mem. & Order, id. (S.D.N.Y. June 2, 2011). The district court entered an unusual scheduling order under which PlaintiffRespondent would move for summary judgment before the House could move to dismiss the complaint. Revised Sched. Order, id. (S.D.N.Y. May 11, 2011). Proceedings were delayed, however, by a prolonged dispute over the extent to which the court could consider scholarly publications, articles, or books in connection with Plaintiff-Respondent’s motion for summary judgment.7 The district court ultimately denied Plaintiff-Respondent’s motion to
7 See Mem. of Law in Supp. of Mot. to Strike, id. ; Letters to the Court from Roberta A. Kaplan, dated Aug 11, 2011 (S.D.N.Y. ECF No. 120), Aug. 12, 2011 (two letters; ECF Nos. 118 & 119), Sept. 21, 2011 (ECF No. 112), and Sept. 23, 2011 (ECF No. 115); Letters to Court from H. Christopher Bartolomucci, dated Aug. 11, 2011 (ECF No. 117), Aug. 12, 2011 (ECF No. 116), and Sept. 23, 2011 (ECF No. 111); House’s Mem. of Law in Supp. of Mot. for Leave to File Sur-Reply, id. (S.D.N.Y. Sept. 2, 2011); Mem. in Supp. of Renewed Mot. for Leave to File Sur-Reply, id. (S.D.N.Y. Sept. 20, 2011). The district court ordered that substantial portions of these matters be litigated by letter brief.

10
strike these materials from the House’s briefing. Order, Windsor (S.D.N.Y. Aug. 29, 2011).
b. The District Court’s Decision
The dispositive motions were fully briefed and pending before the district court for nearly nine months before the district court’s decision. Ultimately, without hearing oral argument, the district court granted Plaintiff-Respondent’s motion for summary judgment and denied the House’s motion to dismiss. The district court first relied on decisions from New York’s lower courts to infer that New York would have recognized foreign same-sex marriages before New York itself allowed such marriages, even though New York’s highest court had expressly reserved the question in November 2009, after Ms. Spyer’s passing. App. 6a-8a. It found, therefore, that Plaintiff-Respondent had standing. Id. The district court then found this Court’s decision upholding traditional marriage laws in Baker v. Nelson, 409 U.S. 810 (1972), to be inapplicable. App. 8a-9a. Turning to the question of the proper level of constitutional scrutiny for classifications based on sexual orientation—an issue that the Second Circuit had not yet addressed—the district court adopted a novel standard of constitutional review involving “intensified scrutiny,” a level of scrutiny between ordinary rational-basis and intermediate scrutiny. App. 12a14a. The district court based this hybrid level of review on the First Circuit’s decision in Gill, which had issued six days earlier.8
8 Petitioner claims that it is “incorrect” to say that “the district court adopted a novel standard of constitutional review

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The district court then considered the government interests that the House advanced to support DOMA’s constitutionality. The court acknowledged that several of these interests—such as preserving the traditional institution of marriage and promoting responsible childrearing—are weighty enough to justify DOMA, but concluded that DOMA does not adequately further any of these interests. App. 16a-19a. By contrast, the district court recognized that DOMA is sufficiently related to a government interest in ensuring the uniform nationwide distribution of federal benefits, but deemed this interest illegitimate because, in the district court’s view, the Constitution gives states and not Congress the prerogative to define “marriage” even for federal-law purposes. App. 19a21a. The district court also held that conserving government resources is not a sufficient government interest to support DOMA without some further justification for how the savings are achieved. App. 21a-22a.
involving ‘intensified scrutiny,’” apparently on the theory that the district court’s statements in this regard were dicta. Pet. 8 n.4 (citation marks omitted). But before opining that “a more searching form of rational basis review” applies in some cases, the district court expressly stated that it was “elaborat[ing] on an aspect of the equal protection case law that it believes affects the nature of the rational basis analysis required here.” App. 13a. At a minimum, this demonstrates that there is significant ambiguity in the record, and disagreement among the parties, about what level of scrutiny the district court applied.

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c. Subsequent Proceedings
The House appealed this judgment to the Second Circuit. Although the district court had adopted the result advocated by the Department, Petitioner nevertheless filed its own Notice of Appeal.
Three days later, on June 11, Plaintiff-Respondent filed a “motion to expedite appeal” in the Second Circuit, proposing a highly expedited schedule. Mem. of Law in Supp. of Mot. for Expedited Appeal, Windsor, Nos. 12-2335 & 12-2435 (2d Cir. June 11, 2012). The Second Circuit granted Petitioner’s motion while adopting the House’s alternative schedule for expedition, Order, id. (2d Cir. June 22, 2012), holding oral argument on September 27, 2012. The Second Circuit denied the House’s motion to postpone oral argument pending the outcome of Plaintiff-Respondent’s petition for certiorari before judgment. Order, id. (2d Cir. Aug. 23, 2012).
On July 16, 2012, nearly a month after the Second Circuit granted her expedition motion and 17 days after the House filed its own petition after judgment in Gill, Plaintiff-Respondent filed in this Court a petition for certiorari before judgment in the Second Circuit. See Pet. for Cert. Before Judgment, Windsor v. United States, No. 12-63 (“Windsor Pet.”). The House has opposed that Petition. Br. in Opp’n, id. (Aug. 31, 2012). The instant Petition was filed 57 days later, on September 11.
On October 18, the day before this Brief was filed, a divided panel of the Second Circuit affirmed the district court’s judgment. Given the timing of the court of appeals’ decision, the House intends to address the Second Circuit’s opinion and its

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ramifications for this case in a forthcoming supplemental filing in this Court.
4. Other Pending Petitions Involving DOMA Section 3
The question of DOMA’s constitutionality is also presented by seven other petitions for certiorari pending before this Court. Three petitions arise out of the First Circuit’s decision and judgment in Massachusetts v. U.S. Department of Health and Human Services, 682 F.3d 1 (1st Cir. 2012). The others are petitions for certiorari before judgment following appeals of district court judgments striking down DOMA on equal protection grounds—one petition by the plaintiff in this case, one by the Department in Golinski v. OPM, 781 F. Supp. 2d 967 (N.D. Cal. 2012), and petitions by both the plaintiffs and the Department in Pedersen v. OPM, No. 10-cv1750, 2012 WL 3113883 (D. Conn. July 31, 2012).
The House filed a Petition for Certiorari in the First Circuit case on June 29, 2012. See Pet. for Cert., No. 12-13, Bipartisan Legal Advisory Group of the U.S. House of Representatives v. Gill. No party opposes the House’s Gill Petition. A few days later, the Department filed its own Petition in that case, No. 12-15 (July 3, 2012), despite having its bottomline position on DOMA adopted in that case. On July 20, Massachusetts filed a Conditional CrossPetition for Certiorari in the First Circuit case, No. 12-97; both Massachusetts and the individual Gill plaintiffs support this Court’s review in Gill. Resp. of the Commonwealth of Mass. in Supp. of Cert., Nos. 12-13 & 12-15 (July 20, 2012); Br. in Resp. of Nancy Gill et al., Nos. 12-13 & 12-15 (Aug. 2, 2012).

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Similarly, the Department filed a Petition for a Writ of Certiorari Before Judgment in Golinski, No. 12-16 (July 3, 2012), despite prevailing below—an action subsequently duplicated by the PlaintiffsPetitioners in Pedersen, see No. 12-231, and here. The Department filed its own Petition in Pedersen as well. See No. 12-302. The Department does not unequivocally support plenary review in either this case or Pedersen, but merely requests that the Court hold those Petitions for review in the event it denies the writ in the other DOMA cases.
REASONS FOR DENYING THE WRIT
A grant of a petition for certiorari filed before judgment in the Court of Appeals “is an extremely rare occurrence.” Coleman v. Paccar, Inc., 424 U.S. 1301, 1304 n.* (1976) (Rehnquist, J., in chambers). This Court’s Rule 11 provides that such a writ “will be granted only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.”
This case does not remotely satisfy that standard. Although the issue of DOMA’s constitutionality is indeed a matter of great public importance, particularly given the confrontation between the House and executive branch engendered by the Department’s actions in this litigation, that issue has already been brought before this Court by “normal appellate practice”—in the form of the House’s petition after decision and judgment in Gill, a case in which the House, Department, Massachusetts, and the individual plaintiffs all agree that certiorari is appropriate. There is thus

15
nothing “to justify deviation from normal appellate practice” in this case.
Instead, granting the writ here would result only in unnecessary multiplication and confusion of the issues. Not only is there no justification for taking the extraordinary step of granting certiorari before judgment when the exact same issue is squarely presented in an earlier-filed petition for certiorari after judgment, but even the Department acknowledges that this case features unique vehicle problems not present in Gill. To determine whether Plaintiff-Respondent even has standing to pursue her claims (an issue this Court would need to consider to confirm its own jurisdiction), this Court would be forced to consider a sensitive question of New York law—whether New York would have recognized foreign same-sex marriages at a time when it forbade them to be entered into in-state— that the New York Court of Appeals thus far has expressly reserved. What is more, as explained more fully in the House’s opposition in No. 12-15, it is not clear that Petitioner, whose arguments prevailed in district court and have now prevailed in the court of appeals as well, even has appellate standing to petition. There is certainly no reason to confront that issue when the same underlying constitutional question is squarely presented in a Petition filed and briefed after the First Circuit had already issued its opinion and entered judgment.
The Department’s effort to file a petition for certiorari before judgment in this case is truly extraordinary. If the Department were really eager to seek this Court’s review of DOMA’s constitutionality and thought petitioning for

16
certiorari before judgment was appropriate, it could have done so years ago. It makes little sense for the Department to make that extraordinary request only after a case—Gill—is properly before this Court in the ordinary course of appellate proceedings. This case would add nothing except procedural complications to this Court’s consideration of DOMA’s constitutionality in Gill. The proper course here is also the straightforward one: There is no reason for the Department or this Court to search through the dockets of the courts of appeals for cases implicating DOMA’s constitutionality when the First Circuit has ruled. The First Circuit rejected the House’s arguments, and the House alone seeks to have the First Circuit’s judgment overturned.
Under these circumstances, the House’s Gill Petition is the superior vehicle for review of DOMA’s constitutionality by this Court. The Court can avoid all of the side issues presented by this case and focus on the important question of DOMA’s constitutionality by granting the House’s Petition in No. 12-13, and denying the Petition in this case.
I. Gill Presents Exactly the Same Question Regarding DOMA’s Constitutionality.
As Petitioner acknowledges, Pet. 13, the question presented in this case regarding DOMA is identical to the House’s Question 1 in Gill. Compare Pet. (I) with Pet. No. 12-13 at i.9 In its Gill opinion, the First Circuit passed on exactly the same question as the district court and court of appeals here: Whether DOMA is compatible with the Fifth Amendment’s
9 The Department’s Petition in Gill also presents that same question. See Pet. No. 12-15 (I).

17
implicit guarantee of equal protection. Thus, there is no aspect of the issues that would be presented in this case as to DOMA’s constitutionality that the Court could not address as easily (or more easily) in Gill instead.10
Recognizing that this case adds nothing to Gill, Petitioner suggests that the Court hold it pending the disposition of the Gill petitions, and grant this petition filed before judgment if it denies the writ in that case. Pet. 13. But as is explained infra, this case is inferior to Gill in multiple ways as a vehicle for reviewing DOMA’s constitutionality. Indeed, even Petitioner recognizes that this case is an inferior vehicle not only to Gill, but even to the before-judgment Pedersen petitions. Pet. 12. If the Court somehow deems that issue not to warrant certiorari after judgment in Gill, then a fortiori it will not warrant certiorari here.
10 Ms. Windsor argues, in support of certiorari, that “the record in this case could not be clearer or cleaner” because “it is undisputed by the parties” that her injury arose “solely because she * * * was married to a woman (instead of a man).” Resp. 10. Leaving aside the threshold question whether Ms. Windsor even was recognized as “married” under the law of New York, see infra Pt. II, this contention does nothing to distinguish this case from Gill, or indeed from any of the other DOMA petitions before the Court: All of them involve one or more claims that undisputedly are predicated solely on the fact that the respective plaintiffs’ same-sex relationships leave them ineligible for federal benefits available to married couples.

18

II. Petitioner’s Article III Standing Turns on a Question of State Law That Has Been Expressly Reserved by the New York Court of Appeals, and Presents a Vehicle Problem Unique to This Case.

“This Court, of course, does not sit to determine matters of state law * * * .” Dixon v. Duffy, 344 U.S. 143, 144 (1952). And Gill, like many DOMA cases, presents no questions of state law. But as Petitioner acknowledges, this case does present an important state-law question.

Petitioner presents the question whether DOMA Section 3 denies equal protection to “persons of the same sex who are legally married under the laws of their State.” Pet. I, Question Presented. To have standing to assert this claim, Plaintiff-Respondent obviously must have been “legally married” to another woman “under the law[] of their State.” But that is a state law question, the answer to which remains uncertain.

New York has permitted same-sex marriages only

since mid-2011. See Thomas Kaplan, After Long

Wait, Gay Couples Marry in New York, N.Y. Times

(July 23, 2011) http://www.nytimes.com/2011/07/

24/nyregion/across-new-york-hundreds-of-gay-

couples-to-marry-on-sunday.html.

Plaintiff-

Respondent obtained her marriage certificate with

Ms. Spyer in Ontario long before marriage

certificates were available to same-sex couples in

New York. See id.; Windsor Pet. 5. Ms. Spyer

passed away on February 5, 2009, again long before

New York issued same-sex marriage certificates of

its own. Windsor Pet. 5. As the district court

recognized, see App. 6a, Plaintiff-Respondent’s

19
standing thus depends on whether New York law would have recognized her Ontario marriage before the time that New York began to permit same-sex marriages in-state. See also Smelt v. Cnty. of Orange, 447 F.3d 673 (9th Cir. 2006) (unmarried same-sex couple lacked standing to challenge DOMA), cert. denied, 549 U.S. 959 (2006). If the Windsor-Spyer same-sex foreign marriage certificate was not valid under New York law, then the premise for Plaintiff-Respondent’s claim fails because she can trace no injury to DOMA, and DOMA’s invalidation would provide no redress. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992).11
The New York Court of Appeals has not resolved the critical question of whether foreign, same-sex marriage certificates were valid under New York law in 2009, when Ms. Spyer died. Just three years earlier, in rejecting an effort to compel New York to recognize same-sex marriage generally, the court held that the “New York Constitution does not compel recognition of marriages between members of the same sex.” Hernandez v. Robles, 855 N.E.2d 1, 5
11 The Department suggests, without explaining why, that the validity in New York of Plaintiff-Respondent’s Ontario marriage certificate might go to the merits of her claim rather than her standing to pursue it. Pet. 12. But since, on Petitioner’s own account, Plaintiff-Respondent must have been a member of a state-recognized marriage in order to bring her within the class of persons whose equal-protection rights DOMA violates, it is not clear how this could be anything other than a standing issue. In any event, Petitioner acknowledges that the uncertainty over the validity of a foreign marriage certificate obtained while New York itself did not allow samesex marriages creates a serious vehicle problem whether or not it is critical to Plaintiff-Respondent’s standing. Id.

20
(N.Y. 2006). Then, in November 2009, after Ms. Spyer’s passing, it expressly reserved the question whether New York law recognizes foreign, same-sex marriage certificates. Godfrey v. Spano, 920 N.E.2d 328, 337 (N.Y. 2009) (declining to decide whether “New York’s common-law marriage recognition rule is a proper basis for the challenged recognition of out-of-state same-sex marriages,” and instead resting the court’s decision on its conclusion that the statutory benefits in question were not limited to spouses).
Thus, even establishing federal jurisdiction in this case required the courts below to consider the sensitive state-law question of whether PlaintiffRespondent’s and Ms. Spyer’s Canadian marriage certificate would have been recognized under New York law at the time relevant for this case. See App. 6a-8a. Because Plaintiff-Respondent’s standing turns on the answer to this question, the House requested that the Second Circuit certify it to the New York Court of Appeals. See Br. for Def.Appellant at 13-14, 17-19, Windsor, Nos. 12-2335 & 12-2435 (2d Cir. Aug. 16, 2012). The Second Circuit declined to do so, but because the question goes to the plaintiff’s standing, that does not end the matter. This Court retains an obligation to ensure that the Article III prerequisites are satisfied, and plaintiff’s standing clearly depends on a state law question. This standing issue is unique to this case and the underlying foreign marriage certificate. In light of the alternative vehicles, most notably the House’s Petition in Gill, that do not present this vehicle problem, there is no reason to grant the Department’s Petition here.

21
III. Because Petitioner Prevailed Below, Granting the Petition Would Create Unnecessary Procedural and Substantive Complications.
Additionally, because the Department prevailed below, granting its Petition here would only introduce unnecessary procedural and substantive complications to this Court’s consideration of DOMA. Procedurally, because the Department prevailed in the district court and has now prevailed in the court of appeals, it would make no sense to give the Department the benefit of an opening and reply brief in this Court. Thus, if the Court were to grant certiorari here, it would have to engage in a series of procedural machinations to align the parties properly. There is no reason to go through those steps when the parties are already properly aligned in the House’s Petition in Gill.
The complications flowing from the Department’s success in the district court go well beyond scheduling. As explained more fully in the House opposition in No. 12-15, it is not clear that the Department even has appellate standing to petition. One of the basic rules of federal procedure is that “a party who receives all that he has sought generally is not aggrieved by the judgment affording [the] relief and cannot appeal from it.” INS v. Chadha, 462 U.S. 919, 930 (1983) (quoting Deposit Guar. Nat’l Bank v. Roper, 445 U.S. 326, 333 (1980) (brackets omitted)).
Two Terms ago this Court made clear that the same principle applies to its certiorari jurisdiction. Camreta v. Greene, 131 S. Ct. 2020, 2030-33 (2011). As a result, “[a]s a matter of practice and prudence,

22
[this Court has] generally declined to consider cases at the request of a prevailing party.” Id. at 2030.
Indeed, in a footnote in the instant Petition, the Department acknowledges that granting certiorari here would require the Court to expand the existing executive-branch appellate-standing rule in cases like this one—from a rule allowing “an agency of the United States” to appeal a judgment striking down “the Act of Congress it administers” even where it agrees with that outcome, INS v. Chadha, 462 U.S. 919 (1983), to one allowing any executive-branch defendant to obtain review of any judgment striking down a statute that the executive branch maintains is unconstitutional. See Pet. 11-12 n.6.
Petitioner maintains that this “is a distinction without a difference,” id., but that of course is the precise question that the Court would be required to consider if it granted any of the Department’s pending petitions. And there are significant arguments why the difference may be material. This rule of Chadha is already in the nature of an exception to the general rule that a party cannot appeal from a judgment it requested. The Chadha Court indicated that an agency’s special relationship with “the Act of Congress it administers” is a reason for permitting such an exception when the agency believes the statute to be invalid. 462 U.S. at 931. That is very different from giving the Department an open-ended mandate to seek this Court’s affirmance of the invalidation of any statute the Department chooses, in cases where a Congressional party has intervened to defend the statute. Certainly, there is no compelling reason to make it costless for the Department to abandon its traditional obligation to

23
defend the constitutionality of duly-enacted statutes. Moreover, Chadha involved the executive branch resisting what it regarded as an encroachment on its own constitutional power by the legislative veto at issue there. For both these reasons, the agency in Chadha had a considerably more concrete and particularized interest at stake than the Department here has in DOMA’s invalidity. Granting one of the Department’s petitions would needlessly force this Court to decide whether to extend the rule of Chadha to this situation.
Additionally, the events of the DOMA litigation suggest that this Court should not be over-eager to reaffirm Chadha’s holding regarding executivebranch standing in cases where a Congressional body has taken on the Department’s normal role of defending a statute’s validity. In Chadha, Congress’ involvement was essentially limited to the proceedings before this Court, and the Executive Branch and Legislative Branch agreed that Chadha’s case was the proper one for this Court’s review. It was relatively uncomplicated, therefore, to permit both of them to seek that review. The procedural circumstances here are very different and cast the question in a significantly different light.
When the Executive Branch opines that a major federal statute is unconstitutional and drops its legal defense of that statute in the lower courts, any Congressional body that intervenes will instantly become the sole operative defendant in what is likely to be (or become) sprawling, nationwide litigation— and one that will be prolonged even further by the delays necessarily caused by the intervention process and the re-setting of dispositive briefing

24
deadlines. That is exactly what happened here: The House has been defending DOMA for well over a year, and has intervened in 15 lawsuits challenging DOMA’s validity. Many of these cases involved discovery, including the depositions of numerous expert witnesses; nearly all of them involved briefing multiple dispositive motions and/or appeals. And in all of the cases, the House has been required to defend the statute’s validity against the attacks not only of private plaintiffs, but of the Department as well.
But, when it came time to appeal in these cases, the House found itself in an extended tug-of-war with the Department—which opposes the relief the House seeks—over which cases should receive further review, and when, and how. In such circumstances, there is at least a serious question whether it is more appropriate for the Congressional body, as the real party in interest aggrieved by the lower-court judgment, to have the normal right accorded any multi-case defendant of determining its own appellate strategy, rather than being forced to deal with whatever appeals the Department, an opposing and prevailing party, chooses to file.
The Court need not decide this matter in the DOMA litigation. Since the House’s standing to seek this Court’s review of a judgment striking down DOMA is clear, granting the House’s Gill petition would avoid the question entirely. But granting the Department’s petition not only would lend fresh credence to, but would affirmatively expand, the Chadha rule in a manner that is at best premature and inappropriate without plenary consideration of the issue. The far simpler route is to avoid

25
unnecessarily considering whether to extend this aspect of Chadha, by granting the House’s unopposed Gill petition and denying the Department’s petitions.
In short, there is no reason for this Court to get sidetracked by questions concerning appellate standing and the scope of Chadha. To the contrary, the Court can avoid all of these side issues and focus on the important question of DOMA’s constitutionality simply by granting the House’s Petition in No. 12-13.
IV. The Department Operates as a De Facto Amicus in This Case and That Status Is Best Accommodated by Granting the House’s Gill Petition Alone.
Ever since the Department abandoned its traditional responsibility of defending the constitutionality of DOMA, it has operated as a de facto amicus supporting the arguments of plaintiffs attacking DOMA’s constitutionality. As such, the Department is not entitled to any special consideration of its views as to the appropriate vehicle for this Court’s review. Thus, where the only party defending DOMA (the House) and the plaintiffs who have attacked DOMA all agree that Gill is an appropriate vehicle for this Court’s review, the Department’s suggestion that this Court should accept its petition in these extraordinary procedural circumstances, even if it rejects the House’s Gill Petition, should be viewed with deep skepticism.
Moreover, given the Department’s role as a de facto amicus supporting the plaintiff, granting this Petition would lead to procedural complications and

26
require the Court to realign the parties for purposes of briefing and argument. There is no need to scramble the parties by granting this Petition only to undo the effect by granting later procedural motions.
* * *
The House agrees with the Department and with Plaintiff-Respondent that this Court should review DOMA’s constitutionality. But there clearly is no need to deviate from normal appellate practice to do so—especially when this case presents unique vehicle problems which could only distract this Court from the central issues concerning DOMA. DOMA’s constitutionality can be fully resolved by granting the House’s petition in Gill, and this Court should take that path. In all events, it should decline to take the extraordinary step of granting certiorari in this case at the request, filed before judgment in the court of appeals, of the parties who prevailed in the courts below.
CONCLUSION
For the foregoing reasons, the Petition for a Writ of Certiorari Before Judgment should be denied. The House’s Petition for Certiorari in No. 12-13 should be granted.

27
Respectfully submitted,
PAUL D. CLEMENT Counsel of Record
H. CHRISTOPHER BARTOLOMUCCI NICHOLAS J. NELSON MICHAEL H. MCGINLEY BANCROFT PLLC 1919 M Street, N.W., Suite 470 Washington, D.C. 20036 (202) 234-0090 pclement@bancroftpllc.com
KERRY W. KIRCHER General Counsel
WILLIAM PITTARD Deputy General Counsel
CHRISTINE DAVENPORT Senior Assistant Counsel
TODD B. TATELMAN MARY BETH WALKER ELENI M. ROUMEL
Assistant Counsels OFFICE OF GENERAL COUNSEL U.S. HOUSE OF REPRESENTATIVES 219 Cannon House Office Bldg. Washington, D.C. 20515 (202) 225-9700
Counsel for Respondent the Bipartisan Legal Advisory Group of the United States House of Representatives
October 19, 2012

 
 No. 12-307 XX-XXXX
In the Supreme Court of the United States
UNITED STATES OF AMERICA, PETITIONER v.
EDITH SCHLAIN WINDSOR, IN HER CAPACITY AS EXECUTOR OF THE ESTATE OF THEA CLARA SPYER
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUPPLEMENTAL BRIEF FOR THE UNITED STATES
DONALD B. VERRILLI, JR. Solicitor General Counsel of Record Department of Justice Washington, D.C. 20530-0001 SupremeCtBriefs@usdoj.gov (202) 514-2217

TABLE OF AUTHORITIES

Cases:

Page

Baker v. Nelson, 409 U.S. 810 (1972)..................................2, 7 Bishop v. Wood, 426 U.S. 341 (1976).......................................8 Elk Grove Unified Sch. Dist. v. Newdow,
542 U.S. 1 (2004)....................................................................8 General Elec. Co. v. Gilbert:
429 U.S. 125 (1976).........................................................9, 10 423 U.S. 822 (1975).............................................................10 Graham v. Richardson, 403 U.S. 365 (1971) .........................6 Heller v. Doe, 509 U.S. 312 (1993) ...........................................6 Huddleston v. Dwyer, 322 U.S. 232 (1944) ............................8 INS v. Chadha, 462 U.S. 919 (1983)....................................2, 8 MacGregor v. State Mut. Life Assurance Co., 315 U.S. 280 (1942) ...............................................................8 Propper v. Clark, 337 U.S. 472 (1949).....................................8 Township of Hillsborough v. Cromwell, 326 U.S. 620 (1946) ......................................................................................8 United States v. Durham Lumber Co., 363 U.S. 522 (1960) ......................................................................................8

Constitution, statutes and rules:
U.S. Const. Amend. V ...............................................................1 Defense of Marriage Act, Pub. L. No. 104-199,
110 Stat. 2419: § 3, 110 Stat. 2419 (1 U.S.C. 7).................................passim
28 U.S.C. 1254(1) .......................................................................9 Sup. Ct. R.:
Rules 10-16............................................................................9 Rule 15.8 ................................................................................1

(I)

II

Miscellaneous:

Page

Eugene Gressman et al., Supreme Court Practice (9th ed. 2007) .........................................................................10

In the Supreme Court of the United States
No. 12-307 X-XXXX UNITED STATES OF AMERICA, PETITIONER
v. EDITH SCHLAIN WINDSOR, IN HER CAPACITY AS EXECUTOR OF THE ESTATE OF THEA CLARA SPYER
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUPPLEMENTAL BRIEF FOR THE UNITED STATES
This supplemental brief, filed pursuant to Rule 15.8 of the Rules of this Court, brings to the Court’s attention the opinion of the court of appeals in this case, which was issued after the filing of the government’s petition for a writ of certiorari before judgment, and addresses its impact on the pending petition.
1. On June 6, 2012, the district court entered summary judgment for plaintiff based on its conclusion that Section 3 of the Defense of Marriage Act (DOMA) violates the equal protection guarantee of the Fifth Amendment. Pet. App. 1a-22a. On September 11, 2012, after both the Bipartisan Legal Advisory Group of the United States House of Representatives (BLAG) and the government had filed timely notices of appeal to the United States Court of Appeals for the Second Circuit
(1)

2
(Pet. App. 25a-29a), the government filed a petition for a writ of certiorari before judgment in this case.
2. On October 18, 2012, the court of appeals affirmed the district court’s judgment. App., infra, 1a-83a.
a. At the outset, the court of appeals denied BLAG’s motion to strike the government’s notice of appeal, rejecting BLAG’s argument that the government does not constitute an aggrieved party that can take an appeal. App., infra, 4a-5a. Relying on INS v. Chadha, 462 U.S. 919, 931 (1983), the court held that the government is an aggrieved party because “the United States continues to enforce Section 3” and Section 3’s constitutionality “will have a considerable impact on many operations of the United States.” App., infra, 4a-5a.
b. The court of appeals then rejected BLAG’s threshold request that it should certify to the New York Court of Appeals the question, which BLAG characterized as implicating plaintiff’s standing, whether New York in 2009 recognized same-sex marriages entered into in other jurisdictions. App., infra, 5a-7a.1 Relying on the “useful and unanimous” rulings of New York’s intermediate appellate courts on that question, id. at 6a, the court of appeals agreed with the district court and concluded that New York recognized such marriages at the relevant time, id. at 6a-7a.
c. The court of appeals also rejected BLAG’s argument that this Court’s summary dismissal of the appeal in Baker v. Nelson, 409 U.S. 810 (1972), which sought review of the Minnesota Supreme Court’s decision up-
1 In denying plaintiff!’s refund claim, the Internal Revenue Service relied only on Section 3 of DOMA. It did not identify or address any question of the recognition or validity of plaintiff!’s marriage under New York law. See No. 12-307 Pet. 4; 1:10-cv-08435 Docket entry No. 31-12, at 7 (June 24, 2011).

3
holding the constitutionality of a state statute interpreted to limit marriage to persons of the opposite sex, controls plaintiff’s equal protection challenge. App., infra, 7a-11a. After noting the limited precedential value of summary dismissals, the court of appeals explained that the “question whether the federal government may constitutionally define marriage as it does in Section 3 of DOMA is sufficiently distinct from the question in Baker: whether same-sex marriage may be constitutionally restricted by the states.” Id. at 8a. The court reasoned, moreover, that even if “Baker might have had resonance” when it was decided, “it does not today” because of the “manifold changes to the Supreme Court’s equal protection jurisprudence” since Baker. Id. at 9a.
d. Turning to the constitutionality of Section 3, the court of appeals noted that “the existence of a rational basis for Section 3 of DOMA is closely argued,” App., infra, 12a, but concluded that it need not resolve that argument “if heightened scrutiny is available, as it is in this case,” id. at 14a. In considering the applicable level of scrutiny, the court first looked to whether the class has been subjected to discrimination. Id. at 16a-17a. The court found “[i]t is easy to conclude that homosexuals have suffered a history of discrimination.” Id. at 16a. “Perhaps the most telling proof of animus and discrimination,” the court determined, “is that, for many years and in many states, homosexual conduct was criminal.” Ibid. The court rejected BLAG’s effort to distinguish the history of discrimination against gay and lesbian people from that against racial minorities and women. That “homosexuals as a class have never been politically disenfranchised,” the court reasoned, is “not decisive,” pointing to this Court’s application of heightened scrutiny to classifications based on illegitimacy. Ibid. Noting

4
that “BLAG concedes that homosexuals have endured discrimination in this country since at least the 1920s,” the court concluded that “[n]inety years of discrimination is entirely sufficient.” Id. at 17a.
The court of appeals then assessed whether sexual orientation, the distinguishing class characteristic, bears on a typical class member’s ability to contribute to society. App., infra, 17a-18a. The court reasoned that, while “[t]here are some distinguishing characteristics, such as age or mental handicap, that may arguably inhibit an individual’s ability to contribute to society,” sexual orientation “is not one of them.” Id. at 18a. In determining that sexual orientation “has nothing to do with aptitude or performance,” the court rejected BLAG’s argument that “the proper consideration is whether the classification turns on distinguishing characteristics relevant to interests the State has the authority to implement,” rather than general ability to contribute to society. Ibid. (citation and internal quotation marks omitted). The court concluded that, among other problems, “BLAG cites no precedential application of that standard to support its interpretation, and it is inconsistent with actual cases.” Ibid.
Next, the court of appeals examined the discernability of sexual orientation, App., infra, 19a-21a, determining that “what matters here is whether the characteristic invites discrimination when it is manifest,” id. at 21a. The court rejected the characterization of this factor as one of “immutability,” finding that “the test is broader.” Id. at 19a-20a. Analogizing to classifications based on alienage, illegitimacy, and national origin, id. at 19a-21a, the court concluded that “sexual orientation is a sufficiently distinguishing characteristic to identify the discrete minority class of homosexuals,” id. at 21a.

5
Finally, the court of appeals evaluated the political power of gay and lesbian people. App., infra, 21a-23a. The court acknowledged that “homosexuals have achieved political successes over the years,” but determined that the “question is whether they have the strength to politically protect themselves from wrongful discrimination.” Id. at 21a. Pointing to “the seemingly small number of acknowledged homosexuals” in positions of power, among other evidence, id. at 22a, the court concluded that gay and lesbian people cannot “adequately protect themselves from the discriminatory wishes of the majoritarian public,” id. at 23a.
Based “on the weight of the factors and on analogy to the classifications recognized as suspect and quasi-suspect,” the court concluded that “the class is quasi-suspect (rather than suspect),” and that laws drawing distinctions on the basis of sexual orientation are thus subject to intermediate scrutiny. App., infra, 23a.
e. The court of appeals then held that Section 3 of DOMA fails under intermediate scrutiny. App., infra, 23a-31a. The court concluded that the purposes that BLAG advanced in support of Section 3 do not bear a substantial relationship to an important governmental objective, id. at 24a-30a, noting that “BLAG’s counsel all but conceded [at argument] that these reasons for enacting DOMA may not withstand intermediate scrutiny,” id. at 24a.
The court first determined that an asserted interest in “maintaining a consistent federal definition of marriage” cannot withstand intermediate scrutiny. App., infra, 24a. The court explained that, among other problems, “DOMA’s sweep arguably creates more discord and anomaly than uniformity”; “[b]ecause DOMA defined only a single aspect of domestic relations law, it

6
left standing all other inconsistencies in the laws of the states, such as minimum age, consanguinity, divorce, and paternity.” Id. at 25a. Nor could the court discern a substantial relationship between Section 3 and the interest in “sav[ing] government resources.” Id. at 26a. “DOMA is so broad,” the court concluded, id. at 27a, that it “transcends a legislative intent to conserve public resources,” id. at 28a. And while “[f]iscal prudence is undoubtedly an important government interest,” id. at 27a, the court noted, the “saving of welfare costs cannot justify an otherwise invidious classification,” ibid. (quoting Graham v. Richardson, 403 U.S. 365, 375 (1971)).
Turning to the asserted interest in “preserving traditional marriage as an institution,” App., infra, 28a, the court explained that the “ancient lineage of a legal concept does not give a law immunity from attack,” ibid. (quoting Heller v. Doe, 509 U.S. 312, 326 (1993) (brackets omitted)). The court concluded, moreover, that “[e]ven if preserving tradition were in itself an important goal, DOMA is not a means to achieve it”; “because the decision of whether same-sex couples can marry is left to the states, DOMA does not, strictly speaking, preserve the institution of marriage as one between a man and a woman.” Id. at 29a (citation and internal quotation marks omitted). Finally, the court determined that Section 3 does not advance an interest in the “encouragement of responsible procreation and child-rearing,” id. at 30a, because “DOMA does not affect in any way” the incentives for opposite-sex couples to engage in such procreation and child-rearing, id. at 29a. “Incentives for opposite-sex couples to marry and procreate (or not),” the court concluded, “were the same after DOMA was enacted as they were before.” Id. at 30a.

7
f. Judge Straub dissented in part. While he concurred with the parts of the court’s opinion denying BLAG’s motion to dismiss the government’s appeal and declining to certify to the New York Court of Appeals the marriage-recognition issue, App., infra, 31a, he would have held that Baker, supra, forecloses petitioner’s equal protection challenge, id. at 40a-48a. Even if Baker did not control, Judge Straub would have applied rational basis scrutiny and held that Section 3 is constitutional under that standard of review. Id. at 48a-83a.
3. Although the government initially recommended that its petition be held pending the consideration of petitions in other cases raising the same issue, the court of appeals’ decision materially strengthens this case as a vehicle for resolving the constitutionality of Section 3 of DOMA. In its brief in opposition to the government’s petition, BLAG raised three main vehicle objections: (1) that the grant of a petition for certiorari before judgment is “an extremely rare occurrence” (No. 12-307 Br. in Opp. 14 (citation omitted)); (2) that plaintiff’s standing turns on an unresolved question of State law (id. at 1820); and (3) that the government’s “appellate standing” is unclear (id. at 21-25). The decision below eliminates or substantially mitigates all three objections.
First, and most obviously, as a result of the court of appeals’ decision, this case is no longer one in which this Court is faced with the decision whether to grant certiorari before judgment. As explained below (pp. 9-10, infra), the Court, consistent with past practice, can now consider the present petition as one for certiorari after judgment and, if it were to grant the petition, review the judgment of the court of appeals.
Second, after finding New York law sufficiently clear to resolve the issue directly rather than requiring certi-

8
fication to the New York Court of Appeals, the court of appeals unanimously held—consistent with the “useful and unanimous” rulings of New York’s intermediate appellate courts—that New York law recognized plaintiff!’s foreign marriage at the relevant time. App., infra, 5a7a; id. at 31a (Straub, J., dissenting). The district court had reached the same conclusion. Pet. App. 6a-8a. As this Court has repeatedly explained, the Court generally “accept[s] the interpretation of state law in which the District Court and Court of Appeals have concurred,” and indeed, does so “even if an examination of the statelaw issue without such guidance might have justified a different conclusion.” Bishop v. Wood, 426 U.S. 341, 346 (1976).2 Accordingly, the court of appeals’ resolution of the state-law marriage-recognition issue in plaintiff’s favor eliminates any potential vehicle concerns that a contrary conclusion might have raised.
2 See also, e.g., Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 16 (2004) (noting this Court’s “custom on questions of state law ordinarily is to defer to the interpretation of the Court of Appeals for the Circuit in which the State is located”); United States v. Durham Lumber Co., 363 U.S. 522, 526-527 (1960) (“In dealing with issues of state law that enter into judgments of federal courts, we are hesitant to overrule decisions by federal courts skilled in the law of particular states unless their conclusions are shown to be unreasonable.”) (quoting Propper v. Clark, 337 U.S. 472, 486-487 (1949)); Township of Hillsborough v. Cromwell, 326 U.S. 620, 629-630 (1946) (“On such questions [of local law] we pay great deference to the views of the judges of those courts ‘who are familiar with the intricacies and trends of local law and practice.’!”) (quoting Huddleston v. Dwyer, 322 U.S. 232, 237 (1944) (per curiam)); MacGregor v. State Mut. Life Assurance Co., 315 U.S. 280, 281 (1942) (per curiam) (“In the absence of [state court] guidance, we shall leave undisturbed the interpretation placed upon purely local law by a Michigan federal judge of long experience and by three circuit judges whose circuit includes Michigan.”).

9
Third, citing Chadha, supra, the court of appeals rejected BLAG’s contention that the government lacked standing to appeal the district court’s judgment holding that Section 3 violates equal protection. App., infra, 4a5a. The decision below thus reinforces the government’s reliance on Chadha to seek the Court’s review in this case and in other cases in which Section 3 has been held unconstitutional. See No. 12-307 Pet. 11 n.6.
4. Although the government’s petition in this case was filed as one for certiorari before judgment, the issuance of the court of appeals’ intervening decision does not deprive the Court of the authority to grant it. If granted, the writ of certiorari would still be directed to the court of appeals, and this Court could still exercise jurisdiction pursuant to 28 U.S.C. 1254(1) (“Cases in the courts of appeals may be reviewed by the Supreme Court by * * * writ of certiorari granted upon the petition of any party to any civil or criminal case, before or after rendition of judgment or decree.”). This Court’s rules do not establish any additional requirements, other than inclusion of the court of appeals’ opinion (attached as an Appendix to this brief), for a petition for a writ of certiorari after judgment. See Sup. Ct. R. 10-16.
The Court’s authority to grant this petition is consistent with the course of proceedings in General Electric Co. v. Gilbert, 429 U.S. 125 (1976), the most analogous example of which the government is aware. In General Electric, the parties jointly petitioned for a writ of certiorari before judgment. Before the Court considered that petition, however, the court of appeals rendered an opinion and judgment in the case. The parties then jointly filed a “Supplemental Brief of All Parties,” to which they attached a copy of the court of appeals’ opinion and judgment. See Supp. Br. of All Parties to

10
Joint Pet. for a Writ of Cert. to the U.S. Ct. of Appeals for the Fourth Circuit, App. F & G, Nos. 74-1589 and 741590, General Elec., supra. That brief stated that “[t]he fact that the court of appeals has now issued a judgment * * * does not render the petition for certiorari herein either moot or less viable,” and reaffirmed the request that certiorari be granted. Id. at 2-3. The Court granted certiorari, 423 U.S. 822 (1975), and reviewed the court of appeals’ decision, ultimately reversing the judgment of the court of appeals, 429 U.S. at 128, 146. See Eugene Gressman et al., Supreme Court Practice § 2.4, at 86 n.28 (9th ed. 2007) (discussing certiorari procedure in General Electric). Here, the Court should likewise grant the petition for a writ of certiorari and review the court of appeals’ decision.
* * * * *
For the foregoing reasons, the petition for a writ of certiorari in this case should be granted. Although Department of Health and Human Services v. Massachusetts, petitions for cert. pending, Nos. 12-13 (filed June 29, 2012), 12-15 (filed July 3, 2012), and 12-97 (filed July 20, 2012), is also a case in which a court of appeals has rendered a decision, this case now provides the most appropriate vehicle for this Court’s resolution of the constitutionality of Section 3 of DOMA. In particular, the court of appeals in Massachusetts was constrained by binding circuit precedent as to the applicable level of scrutiny, No. 12-15 Pet. App. 10a, whereas the court of appeals here was not so constrained, and its analysis may be beneficial to this Court’s consideration of that issue.
In the event the Court grants review in this case, it should hold the petitions in Massachusetts pending final

11
resolution on the merits. In the event the Court decides that neither case provides an appropriate vehicle, it should grant the government’s petition for a writ of certiorari before judgment in either Office of Personnel Management v. Golinski, No. 12-16 (filed July 3, 2012), or Office of Personnel Management v. Pedersen, No. 12302 (filed Sept. 11, 2012).
Respectfully submitted.

OCTOBER 2012

DONALD B. VERRILLI, JR. Solicitor General

APPENDIX
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
August Term, 2012
Docket No. 12-2335-cv(L); 12-2435(Con) EDITH SCHLAIN WINDSOR, IN HER OFFICIAL CAPACITY AS EXECUTOR OF THE ESTATE OF THEA CLARA SPYER,
PLAINTIFF-APPELLEE v.
UNITED STATES OF AMERICA, DEFENDANT-APPELLANT
AND
BIPARTISAN LEGAL ADVISORY GROUP OF THE UNITED STATES HOUSE OF REPRESENTATIVES,
INTERVENOR-DEFENDANT-APPELLANT
Argued: September 27, 2012 Decided: October 18, 2012
Before: JACOBS, Chief Judge, STRAUB and DRONEY, Circuit Judges.
Intervenor Bipartisan Legal Advisory Group of the United States House of Representatives appeals from an order of the United States District Court for the Southern District of New York granting summary
(1a)

2a
judgment in favor of the surviving spouse of a samesex couple who was denied the benefit of the spousal deduction under federal tax law. The United States, the defendant, is a nominal appellant. For the following reasons, we conclude that Section 3 of the Defense of Marriage Act violates equal protection and is therefore unconstitutional.
Judge STRAUB dissents in part and concurs in part in a separate opinion.
DENNIS JACOBS, Chief Judge:
Plaintiff Edith Windsor sued as surviving spouse of a same-sex couple that was married in Canada in 2007 and was resident in New York at the time of her spouse’s death in 2009. Windsor was denied the benefit of the spousal deduction for federal estate taxes under 26 U.S.C. § 2056(A) solely because Section 3 of the Defense of Marriage Act (“DOMA”), 1 U.S.C. § 7, defines the words “marriage” and “spouse” in federal law in a way that bars the Internal Revenue Service from recognizing Windsor as a spouse or the couple as married. The text of § 3 is as follows:
In 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, the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.

3a
1 U.S.C. § 7. At issue is Windsor’s claim for a refund in the amount of $363,053, which turns on the constitutionality of that section of federal law.
For the reasons that follow we hold that:
I. Windsor has standing in this action because we predict that New York, which did not permit same-sex marriage to be licensed until 2011, would nevertheless have recognized Windsor and Thea Clara Spyer as married at the time of Spyer’s death in 2009, so that Windsor was a surviving spouse under New York law.
II. Windsor’s suit is not foreclosed by Baker v. Nelson, 409 U.S. 810 (1971), which held that the use of the traditional definition of marriage for a state’s own regulation of marriage status did not violate equal protection.
III. Section 3 of DOMA is subject to intermediate scrutiny under the factors enumerated in City of Cleburn v. Cleburn Living Center, 473 U.S. 431 (1985), and other cases.
IV. The statute does not withstand that review.
* * *
On June 6, 2012, the United States District Court for the Southern District of New York (Jones, J.) granted summary judgment in favor of Windsor in a thorough opinion. Windsor v. United States, 833 F. Supp. 2d 394 (S.D.N.Y. 2012). The court ruled that Section 3 of DOMA violated the equal protection because there was no rational basis to support it. Id. at 406. “We review a district court’s grant of summary

4a
judgment de novo, construing the record in the light most favorable to the nonmoving party.” Church of American Knights of the Ku Klux Klan v. Kerik, 356 F.3d 197, 203 (2d Cir. 2004).
A preliminary issue concerning alignment of the parties on appeal has been presented by motion. The United States, initially named as the sole defendant, conducted its defense of the statute in the district court up to a point. On February 23, 2011, three months after suit was filed, the Department of Justice declined to defend the Act thereafter, and members of Congress took steps to support it. The Bipartisan Legal Advisory Group of the United States House of Representatives (“BLAG”) retained counsel and since then has taken the laboring oar in defense of the statute. The United States remained active as a party, switching sides to advocate that the statute be ruled unconstitutional.
Following the district court’s decision, BLAG filed a notice of appeal, as did the United States in its role as nominal defendant. BLAG moved this Court at the outset to strike the notice of appeal filed by the United States and to realign the appellate parties to reflect that the United States prevailed in the result it advocated in the district court. The motion is denied. Notwithstanding the withdrawal of its advocacy, the United States continues to enforce Section 3 of DOMA, which is indeed why Windsor does not have her money. The constitutionality of the statute will have a considerable impact on many operations of the United States. See INS v. Chadha, 462 U.S. 919, 931 (1983)

5a
(“When an agency of the United States is a party to a case in which the Act of Congress it administers is held unconstitutional, it is an aggrieved party for purposes of taking an appeal . . . . The agency’s status as an aggrieved party . . . is not altered by the fact that the Executive may agree with the holding that the statute in question is unconstitutional.”).
DISCUSSION
I
For the purpose of federal estate taxes, the law of the state of domicile ordinarily determines whether two persons were married at the time of death. Eccles v. Comm’r, 19 T.C. 1049, 1051, 1053-54 (1953); Rev. Rul. 58-66, 1958-1 C.B. 60 (“The marital status of individuals as determined under state law is recognized in the administration of the Federal income tax laws.”). At the time of Spyer’s death in 2009, New York did not yet license same-sex marriage itself. A separate question—decisive for standing in this case— is whether in 2009 New York recognized same-sex marriages entered into in other jurisdictions. That question was presented to the New York Court of Appeals in Godfrey v. Spano, 13 N.Y.3d 358 (2009). However, the court was able to resolve that case on other grounds, finding “it unnecessary to reach defendants’ argument that New York’s common-law marriage recognition rule is a proper basis for the challenged recognition of out-of-state same-sex marriages.” Id. at 377.

6a
When we are faced with a question of New York law that is decisive but unsettled, we may “predict” what the state’s law is, consulting any rulings of its intermediate appellate courts and trial courts, or we may certify the question to the New York Court of Appeals. See State Farm Mut. Auto. Ins. Co. v. Madella, 372 F.3d 500, 505 (2d Cir. 2004). BLAG urges that we certify this question, observing that this is an option that we have and that the district court did not. We decline to certify.
First, the Court of Appeals has signaled its disinclination to decide this very question. When it elected to decide Godfrey on an alternative sufficient ground, the Court of Appeals expressed a preference and expectation that the issue would be decided by the New York legislature: “[w]e . . . hope that the Legislature will address this controversy.” Godfrey, 13 N.Y.3d at 377. We hesitate to serve up to the Court of Appeals a question that it is reluctant to answer for a prudential reason.
Second, rulings of New York’s intermediate appellate courts are useful and unanimous on this issue. It is a “well-established principle that the ruling of an intermediate appellate state court is a datum for ascertaining state law which is not to be disregarded by a federal court unless it is convinced by other persuasive data that the highest court of the state would decide otherwise.” Statharos v. New York City Taxi and Limousine Comm’n, 198 F.3d 317, 321 (2d Cir. 1999) (internal quotation marks and ellipsis omitted). Three of New York’s four appellate divisions have

7a
concluded that New York recognized foreign same-sex marriages before the state passed its marriage statute in 2011. See In re Estate of Ranf!tle, 81 A.D.3d 566 (1st Dep’t 2011) (Windsor’s home Department, recognizing a 2008 Canadian marriage); Lewis v. N.Y. State Dep’t of Civil Serv., 872 N.Y.S.2d 578 (3rd Dep’t 2009), aff!’d on other grounds sub nom. Godfrey, 13 N.Y.3d 358; Martinez v. Cnty. of Monroe, 850 N.Y.S.2d 740 (4th Dep’t 2008). Two of these cases, Lewis and Martinez, were decided before Spyer died on February 5, 2009. Given the consistent view of these decisions, we see no need to seek guidance here. Because Windsor’s marriage would have been recognized under New York law at the time of Spyer’s death, she has standing.
II
In Baker v. Nelson, an appeal from a Minnesota Supreme Court decision finding no right to same-sex marriage, the Supreme Court issued a summary dismissal “for want of a substantial federal question.” 409 U.S. 810 (1971). The Minnesota Supreme Court had held that “[t]he equal protection clause of the Fourteenth Amendment, like the due process clause, is not offended by the state’s classification of persons authorized to marry.” Baker v. Nelson, 291 Minn. 310, 313 (Minn. 1971). According to BLAG, Baker compels the inference that Congress may prohibit same-sex marriage in the same way under federal law without offending the Equal Protection Clause. We disagree.

8a
“The Supreme Court has long recognized that the precedential value of a summary dismissal is limited to ‘the precise issues presented and necessarily decided by’ the dismissal.” Alexander v. Cahill, 598 F.3d 79, 89 n.7 (2d Cir. 2010) (quoting Mandell v. Bradley, 432 U.S. 173, 176 (1977)). The question whether the federal government may constitutionally define marriage as it does in Section 3 of DOMA is sufficiently distinct from the question in Baker: whether same-sex marriage may be constitutionally restricted by the states. After all, Windsor and Spyer were actually married in this case, at least in the eye of New York, where they lived. Other courts have likewise concluded that Baker does not control equal protection review of DOMA for these reasons.1
1 See Massachusetts v. U.S. Dep’t of HHS, 682 F.3d 1, 8 (1st Cir. 2012) (finding that Baker permitted equal protection review so long as arguments did not “rest on a constitutional right to same-sex marriage”); Windsor, 833 F. Supp. 2d at 399-400 (“The case before the Court does not present the same issue as that presented in Baker. . . . Accordingly, after comparing the issues in Baker and those in the instant case, the Court does not believe that Baker ‘necessarily decided’ the question of whether DOMA violates the Fifth Amendment’s Equal Protection Clause.”); Pedersen v. Office of Pers. Mmgmt., No. 3:10-cv-1750, 2012 WL 3113883, at *11 (D. Conn. July 31, 2012) (“DOMA impacts federal benefits and obligations, but does not prohibit a state from authorizing or forbidding same-sex marriage, as was the case in Baker.”); Golinski v. U.S. Office of Pers. Mgmt., 824 F. Supp. 2d 968, 982 n.5 (N.D. Cal. 2012) (“The failure of the federal government to recognize Ms. Golinski’s marriage and to provide benefits does not alter the fact that she is married under state law.”); Dragovich v. U.S. Dept. of Treasury,

9a
Even if Baker might have had resonance for Windsor’s case in 1971, it does not today. “!‘[I]nferior federal courts had best adhere to the view that if the Court has branded a question as unsubstantial, it remains so except when doctrinal developments indicate otherwise.’!” Hicks v. Miranda, 422 U.S. 332, 344 (1975) (quoting Port Auth. Bondholders Protective Comm. v. Port of N.Y. Auth., 387 F.2d 259, 263 n.3 (2d Cir. 1967) (Friendly, J.)) (emphasis added). In the forty years after Baker, there have been manifold changes to the Supreme Court’s equal protection jurisprudence.
When Baker was decided in 1971, “intermediate scrutiny” was not yet in the Court’s vernacular. See Craig v. Boren, 429 U.S. 190, 218 (1976) (Rehnquist, J., dissenting) (coining “intermediate level scrutiny”). Classifications based on illegitimacy and sex were not yet deemed quasi-suspect. See Lalli v. Lalli, 439 U.S. 259, 264-65, 275 (1982) (applying intermediate scrutiny to a classification based on illegitimacy, and describing how heightened scrutiny had been used for such classifications starting in 1976); Frontiero v.
No. 4:10-cv-01564-CW, 2012 WL 1909603, at *6-7 (N.D. Cal. May 24, 2012); Smelt v. Cnty of Orange, 374 F. Supp. 2d. 861, 872-74 (C.D. Cal. 2005), vacated in part on other grounds, 447 F.3d 673 (9th Cir. 2006); In re Kandu, 315 B.R. 123, 135-38 (Bankr. W.D. Wash. 2004); see also Perry v. Brown, 671 F.3d 1052, 1082 n.14 (9th Cir. 2012) (finding that Baker did not preempt consideration of Proposition 8 case, because “the question of the constitutionality of a state’s ban on same-sex marriage” was not before the court) (emphasis added).

10a
Richardson, 411 U.S. 677, 682 (1973) (plurality opinion) (identifying sex as a suspect class); Boren, 429 U.S. at 197-98 (applying intermediate scrutiny to a classification based on sex); United States v. Virginia, 518 U.S. 515, 575 (1996) (Scalia, J., dissenting) (summarizing that sex-based classifications were analyzed with rational basis review before the 1970’s).2 The Court had not yet ruled that “a classification of [homosexuals] undertaken for its own sake” actually lacked a rational basis. Romer v. Evans, 517 U.S. 620, 635 (1996). And, in 1971, the government could lawfully “demean [homosexuals’] existence or control their destiny by making their private sexual conduct a crime.” Lawrence v. Texas, 539 U.S. 558, 574, 578 (2003) (noting that there was a “tenable” equal protection argument against such laws, but choosing instead to overturn Bowers v. Hardwick, 478 U.S. 186 (1986)). These doctrinal changes constitute another reason why Baker does not foreclose our disposition of this case.
The First Circuit has suggested in dicta that recognition of a new suspect classification in this context would “imply[!] an overruling of Baker.” See Massachusetts, 682 F.3d at 9. We disagree for two reasons that the First Circuit did not discuss. First, when it comes to marriage, legitimate regulatory interests of a state differ from those of the federal government.
2 While other classifications have been deemed quasi-suspect or suspect over the years, the decisions to add sex and illegitimacy are especially helpful in analyzing whether the classification made in DOMA merits intermediate scrutiny.

11a
Regulation of marriage is “an area that has long been regarded as a virtually exclusive province of the States.” Sosna v. Iowa, 419 U.S. 393, 404 (1975). It has for very long been settled that “[t]he State . . . has [the] absolute right to prescribe the conditions upon which the marriage relation between its own citizens shall be created, and the causes for which it may be dissolved.” Pennoyer v. Neff, 95 U.S. 714, 734-35 (1878), overruled on other grounds by Shaffer v. Heitner, 433 U.S. 186 (1977). Therefore, our heightened scrutiny analysis of DOMA’s marital classification under federal law is distinct from the analysis necessary to determine whether the marital classification of a state would survive such scrutiny.
Second, the Supreme Court’s decision to apply rational basis review in Romer does not imply to us a refusal to recognize homosexuals as a quasi-suspect class. See Massachusetts, 682 F.3d at 9. The litigants in Romer had abandoned their quasi-suspect argument after the trial court decision. See Romer, 517 U.S. at 640 n.1 (Scalia, J., dissenting). We are satisfied, for these reasons, that Baker has no bearing on this case.
III
“In deciding an equal protection challenge to a statute that classifies persons for the purpose of receiving [federal] benefits, we are required, so long as the classifications are not suspect or quasi-suspect and do not infringe fundamental constitutional rights, to uphold the legislation if it bears a rational relationship

12a
to a legitimate governmental objective.” Thomas v. Sullivan, 922 F.2d 132, 136 (2d Cir. 1990). Of course, “!!‘a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate government interest.’!” Romer v. Evans, 517 U.S. 620, 634-35 (1996) (quoting Dep’t. of Agric. v. Moreno, 413 U.S. 528, 534 (1973)). So while rational basis review is indulgent and respectful, it is not meant to be “toothless.” Schweiker v. Wilson, 450 U.S. 221, 234 (1981) (quoting Mathews v. Lucas, 427 U.S. 495, 510 (1976)).
The district court ruled that DOMA violated the Equal Protection Clause for want of a rational basis. Windsor, 833 F. Supp. 2d at 406. But the existence of a rational basis for Section 3 of DOMA is closely argued. BLAG and its amici proffer several justifications that alone or in tandem are said to constitute sufficient reason for the enactment. Among these reasons are protection of the fisc, uniform administration of federal law notwithstanding recognition of same-sex marriage in some states but not others, the protection of traditional marriage generally, and the encouragement of “responsible” procreation.
Windsor and her amici vigorously argue that DOMA is not rationally related to any of these goals. Rational basis review places the burden of persuasion on the party challenging a law, who must disprove “!!‘every conceivable basis which might support it.’!” Heller v. Doe, 509 U.S. 312, 320 (1993) (quoting Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364 (1973)). So a party urging the absence of any rational basis takes up a heavy load. That would seem to

13a
be true in this case—the law was passed by overwhelming bipartisan majorities in both houses of Congress; it has varying impact on more than a thousand federal laws; and the definition of marriage it affirms has been long-supported and encouraged.
On the other hand, several courts have read the Supreme Court’s recent cases in this area to suggest that rational basis review should be more demanding when there are “historic patterns of disadvantage suffered by the group adversely affected by the statute.” See Massachusetts, 682 F.3d at 10-11; Able v. U.S., 155 F.3d 628, 634 (2d Cir. 1998); United States v. Then, 56 F.3d 464, 468 (2d Cir. 1995) (Calabresi, J., concurring). Proceeding along those lines, the district court in this case and the First Circuit in Massachusetts both adopted more exacting rational basis review for DOMA. See Massachusetts, 682 F.3d at 11 (describing its “more careful assessment”); Windsor, 833 F. Supp. 2d at 402 (noting that “rational basis analysis can vary by context”). At argument, counsel for BLAG wittily characterized this form of analysis as “rational basis plus or intermediate scrutiny minus.” Oral Arg. Tr. 16:10-12.
The Supreme Court has not expressly sanctioned such modulation in the level of rational basis review; discussion pro and con has largely been confined to concurring and dissenting opinions.3 We think it is
3 Compare Lawrence, 539 U.S. at 580 (O’Connor, J., concurring) (“When a law exhibits such a desire to harm a politically unpopular

14a
safe to say that there is some doctrinal instability in this area.
Fortunately, no permutation of rational basis review is needed if heightened scrutiny is available, as it is in this case. We therefore decline to join issue with the dissent, which explains why Section 3 of DOMA may withstand rational basis review.
group, we have applied a more searching form of rational basis review to strike down such laws under the Equal Protection Clause.”) and U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 188 (1980) (Brennan, J., dissenting) (“In other cases, however, the courts must probe more deeply.”) with City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 459-60 (1985) (Marshall, J., concurring in part and dissenting in part) (“The refusal to acknowledge that something more than minimum rationality review is at work here is, in my view, unfortunate . . . . [B]y failing to articulate the factors that justify today’s ‘second order’ rational-basis review, the Court provides no principled foundation for determining when more searching inquiry is to be invoked. Lower courts are thus left in the dark on this important question, and this Court remains unaccountable for its decisions employing, or refusing to employ, particularly searching scrutiny.”) and Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 321 (1976) (Marshall, J., dissenting) (“[T]he Court has rejected, albeit Sub silentio, its most deferential statements of the rationality standard in assessing the validity under the Equal Protection Clause of much noneconomic legislation.”). But see U.S. R.R. Ret. Bd., 449 U.S. at 176 n.10 (“The comments in the dissenting opinion about the proper cases for which to look for the correct statement of the equal protection rational-basis standard, and about which cases limit earlier cases, are just that: comments in a dissenting opinion.”).

15a
Instead, we conclude that review of Section 3 of DOMA requires heightened scrutiny. The Supreme Court uses certain factors to decide whether a new classification qualifies as a quasi-suspect class. They include: A) whether the class has been historically “subjected to discrimination,” Bowen v. Gilliard, 483 U.S. 587, 602 (1987); B) whether the class has a defining characteristic that “frequently bears [a] relation to ability to perform or contribute to society,” Cleburne, 473 U.S. at 440-41; C) whether the class exhibits “obvious, immutable, or distinguishing characteristics that define them as a discrete group;” Bowen, 483 U.S. at 602; and D) whether the class is “a minority or politically powerless.” Id. Immutability and lack of political power are not strictly necessary factors to identify a suspect class. See Cleburne, 473 U.S. at 442 n.10 (“!‘[T]here’s not much left of the immutability theory, is there?’!”) (quoting J. Ely, Democracy and Distrust 150 (1980)); Cleburne, 473 U.S. at 472 n.24 (Marshall, J., concurring in part and dissenting in part) (“The ‘political powerlessness’ of a group may be relevant, but that factor is neither necessary, as the gender cases demonstrate, nor sufficient, as the example of minors illustrates.”); Nyquist v. Mauclet, 432 U.S. 1, 9 n.11 (1977) (rejecting the argument that alienage did not deserve strict scrutiny because it was not immutable); see also Pedersen, 2012 WL 3113883, at *13; Golinski, 824 F. Supp. 2d at 983; Kerrigan v. Comm’r of Pub. Health, 289 Conn. 135, 167-68 (2008). Nevertheless, immutability and political power are indicative, and we consider them here. In this case, all four factors justify heightened scrutiny: A) homo-

16a
sexuals as a group have historically endured persecution and discrimination; B) homosexuality has no relation to aptitude or ability to contribute to society; C) homosexuals are a discernible group with nonobvious distinguishing characteristics, especially in the subset of those who enter same-sex marriages; and D) the class remains a politically weakened minority.
A) History of Discrimination
It is easy to conclude that homosexuals have suffered a history of discrimination. Windsor and several amici labor to establish and document this history, but we think it is not much in debate. Perhaps the most telling proof of animus and discrimination against homosexuals in this country is that, for many years and in many states, homosexual conduct was criminal. These laws had the imprimatur of the Supreme Court. See Bowers, 478 U.S. at 196; see also Lawrence, 539 U.S. at 578 (noting that such laws “demean[ed homosexuals’] existence [and] control[led] their destiny”).
BLAG argues that discrimination against homosexuals differs from that against racial minorities and women because “homosexuals as a class have never been politically disenfranchised.” True, but the difference is not decisive. Citizens born out of wedlock have never been inhibited in voting; yet the Supreme Court has applied intermediate scrutiny in cases of illegitimacy. See generally Lalli v. Lalli, 439 U.S. 259 (1982). Second, BLAG argues that, unlike protected classes, homosexuals have not “suffered discrimination for longer than history has been record-

17a
ed.” But whether such discrimination existed in Babylon is neither here nor there. BLAG concedes that homosexuals have endured discrimination in this country since at least the 1920s. Ninety years of discrimination is entirely sufficient to document a “history of discrimination.” See Pedersen, 2012 WL 3113883 at *21 (summarizing that “the majority of cases which have meaningfully considered the question [have] likewise held that homosexuals as a class have experienced a long history of discrimination”).
B) Relation to Ability
Also easy to decide in this case is whether the class characteristic “frequently bears [a] relation to ability to perform or contribute to society.” Cleburne, 473 U.S. at 440-41; see Frontiero, 411 U.S. at 686 (“[W]hat differentiates sex from such non-suspect statuses as intelligence or physical disability, and aligns it with the recognized suspect criteria, is that the sex characteristic frequently bears no relation to ability to perform or contribute to society.”). In Cleburne, the Supreme Court ruled that heightened scrutiny was inappropriate because “those who are mentally retarded have a reduced ability to cope with and function in the everyday world.” 473 U.S. at 442. The Court employed similar reasoning with respect to age classifications, finding that heightened scrutiny was not appropriate for mandatory retirement laws because “physical ability generally declines with age” and such requirements reasonably “serve[d] to remove from . . . service those whose fitness for uniformed

18a
work presumptively has diminished with age.” Murgia, 427 U.S. at 316.
There is no such impairment here. There are some distinguishing characteristics, such as age or mental handicap, that may arguably inhibit an individual’s ability to contribute to society, at least in some respect. But homosexuality is not one of them. The aversion homosexuals experience has nothing to do with aptitude or performance.
We do not understand BLAG to argue otherwise. Rather, BLAG suggests that the proper consideration is whether “the classification turns on ‘distinguishing characteristics relevant to interests the State has the authority to implement,’!” quoting Cleburne, 473 U.S. at 441. Thus, BLAG urges that same-sex couples have a diminished ability to discharge family roles in procreation and the raising of children. BLAG cites no precedential application of that standard to support its interpretation, and it is inconsistent with actual cases. See, e.g., Frontiero, 411 U.S. at 686 (distinguishing that sex, unlike intelligence, has no bearing on one’s general ability to contribute to society). In any event, the abilities or inabilities cited by BLAG bear upon whether the law withstands scrutiny (the second step of analysis) rather than upon the level of scrutiny to apply. Cf. Clark v. Jeter, 486 U.S. 456, 461 (1988) (defining the test for intermediate scrutiny as whether a classification is “substantially related to an important government interest”).

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C) Distinguishing Characteristic
We conclude that homosexuality is a sufficiently discernible characteristic to define a discrete minority class. See Rowland v. Mad River Local School Dist., Montgomery County, Ohio, 470 U.S. 1009, 1014 (1985) (Brennan, J., dissenting from denial of certiorari) (“[H]omosexuals constitute a significant and insular minority of this country’s population.”).
This consideration is often couched in terms of “immutability.” BLAG and its amici argue that sexual orientation is not necessarily fixed, suggesting that it may change over time, range along a continuum, and overlap (for bisexuals). But the test is broader: whether there are “obvious, immutable, or distinguishing characteristics that define . . . a discrete group.” See Bowen, 483 U.S. at 602 (emphasis added). No “obvious badge” is necessary. See Mathews v. Lucas, 427 U.S. 495, 506 (1976). Classifications based on alienage, illegitimacy, and national origin are all subject to heightened scrutiny, Cleburne, 473 U.S. at 440-41, even though these characteristics do not declare themselves, and often may be disclosed or suppressed as a matter of preference.4 What seems to
4 Alienage and illegitimacy are actually subject to change. See Pedersen, 2012 WL 3113883 at *23 (“The Supreme Court has held that resident aliens constitute a suspect class despite the ability to opt out of the class voluntarily. Additionally, one’s status as illegitimate may be subject to change and is therefore not a strictly immutable characteristic.”) (internal citation omitted); see also Watkins v. U.S. Army, 875 F.2d 699, 726 (9th Cir. 1989) (Norris, J.,

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matter is whether the characteristic of the class calls down discrimination when it is manifest.
Thus a person of illegitimate birth may keep that status private, and ensure that no outward sign discloses the status in social settings or in the workplace, or on the subway. But when such a person applies for Social Security benefits on the death of a parent (for example), the illegitimate status becomes manifest. The characteristic is necessarily revealed in order to exercise a legal right. Similarly, sexual preference is necessarily disclosed when two persons of the same sex apply for a marriage license (as they are legally permitted to do in New York), or when a surviving spouse of a same-sex marriage seeks the benefit of the spousal deduction (as Windsor does here).
BLAG argues that a classification based on sexual orientation would be more “amorphous” than discrete. It may be that the category exceeds the number of persons whose sexual orientation is outwardly “obvious, immutable, or distinguishing,” and who thereby
concurring) (“It is clear that by ‘immutability’ the [Supreme] Court has never meant strict immutability in the sense that members of the class must be physically unable to change or mask the trait defining their class. People can have operations to change their sex. Aliens can ordinarily become naturalized citizens. The status of illegitimate children can be changed. People can frequently hide their national origin by changing their customs, their names, or their associations. . . . At a minimum, then, the Supreme Court is willing to treat a trait as effectively immutable if changing it would involve great difficulty, such as requiring a major physical change or a traumatic change of identity.”).

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predictably undergo discrimination. But that is surely also true of illegitimacy and national origin. Again, what matters here is whether the characteristic invites discrimination when it is manifest.
The class affected by Section 3 of DOMA is composed entirely of persons of the same sex who have married each other. Such persons constitute a subset of the larger category of homosexuals; but as counsel for BLAG conceded at argument, there is nothing amorphous, capricious, or tentative about their sexual orientation. Oral Arg. Tr. 12:11-14. Married samesex couples like Windsor and Spyer are the population most visible to the law, and they are foremost in mind when reviewing DOMA’s constitutionality.
We therefore conclude that sexual orientation is a sufficiently distinguishing characteristic to identify the discrete minority class of homosexuals.
D) Political Power
Finally, we consider whether homosexuals are a politically powerless minority. See Bowen, 483 U.S. at 602. Without political power, minorities may be unable to protect themselves from discrimination at the hands of the majoritarian political process. We conclude that homosexuals are still significantly encumbered in this respect.
The question is not whether homosexuals have achieved political successes over the years; they clearly have. The question is whether they have the strength to politically protect themselves from wrongful discrimination. When the Supreme Court ruled

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that sex-based classifications were subject to heightened scrutiny in 1973, the Court acknowledged that women had already achieved major political victories. See Frontiero, 411 U.S. at 685. The Nineteenth Amendment had been ratified in 1920, and Title VII had already outlawed sex-based employment. See 78 Stat. 253. The Court was persuaded nevertheless that women still lacked adequate political power, in part because they were “vastly underrepresented in this Nation’s decisionmaking councils,” including the presidency, the Supreme Court, and the legislature. Frontiero, 411 U.S. at 686 n.17.
There are parallels between the status of women at the time of Frontiero and homosexuals today: their position “has improved markedly in recent decades,” but they still “face pervasive, although at times more subtle, discrimination . . . in the political arena.” Frontiero, 411 U.S. at 685-86. It is difficult to say whether homosexuals are “under-represented” in positions of power and authority without knowing their number relative to the heterosexual population. But it is safe to say that the seemingly small number of acknowledged homosexuals so situated is attributable either to a hostility that excludes them or to a hostility that keeps their sexual preference private—which, for our purposes, amounts to much the same thing. Moreover, the same considerations can be expected to suppress some degree of political activity by inhibiting the kind of open association that advances political agendas. See Rowland, 470 U.S. at 1014 (Brennan, J., dissenting from denial of certiorari) (“Because of the

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immediate and severe opprobrium often manifested against homosexuals once so identified publicly, members of this group are particularly powerless to pursue their rights openly in the political arena.”).
In sum, homosexuals are not in a position to adequately protect themselves from the discriminatory wishes of the majoritarian public.
* * *
Analysis of these four factors supports our conclusion that homosexuals compose a class that is subject to heightened scrutiny. We further conclude that the class is quasi-suspect (rather than suspect) based on the weight of the factors and on analogy to the classifications recognized as suspect and quasi-suspect. While homosexuals have been the target of significant and long-standing discrimination in public and private spheres, this mistreatment “is not sufficient to require ‘our most exacting scrutiny.’!” Trimble v. Gordon, 430 U.S. 762, 767 (1977) (quoting Mathews v. Lucas, 427 U.S. 495, 506 (1976)).
The next step is to determine whether DOMA survives intermediate scrutiny review.
IV
To withstand intermediate scrutiny, a classification must be “substantially related to an important government interest.” Clark v. Jeter, 486 U.S. 456, 461 (1988). “Substantially related” means that the explanation must be “!‘exceedingly persuasive.’!” United States v. Virginia, 518 U.S. 515, 533 (1996) (quoting

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Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982)). “The justification must be genuine, not hypothesized or invented post hoc in response to litigation.” Id.
BLAG advances two primary arguments for why Congress enacted DOMA. First, it cites “unique federal interests,” which include maintaining a consistent federal definition of marriage, protecting the fisc, and avoiding “the unknown consequences of a novel redefinition of a foundational social institution.” Second, BLAG argues that Congress enacted the statute to encourage “responsible procreation.” At argument, BLAG’s counsel all but conceded that these reasons for enacting DOMA may not withstand intermediate scrutiny. Oral Arg. Tr. 16:24-17:6.
A) Maintaining a “Uniform Definition” of Marriage
Statements in the Congressional Record express an intent to enforce uniform eligibility for federal marital benefits by insuring that same-sex couples receive—or lose—the same federal benefits across all states. 5 However, the emphasis on uniformity is suspicious because Congress and the Supreme Court have historically deferred to state domestic relations laws, irrespective of their variations.
5 For example, certain legislators were concerned that it would be administratively difficult to deal with benefit changes as samesex couples moved between states with different policies on samesex marriage. See, e.g., 150 Cong. Rec. 15318 (2004) (Sen. Inhofe).

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To the extent that there has ever been “uniform” or “consistent” rule in federal law concerning marriage, it is that marriage is “a virtually exclusive province of the States.” Sosna, 419 U.S. at 404. As the Supreme Court has emphasized, “the states, at the time of the adoption of the Constitution, possessed full power over the subject of marriage and divorce. . . . [T]he Constitution delegated no authority to the Government of the United States on the subject of marriage and divorce.” Haddock v. Haddock, 201 U.S. 562, 575 (1906) (emphasis added), overruled on other grounds by Williams v. State of North Carolina, 317 U.S. 287 (1942). DOMA was therefore an unprecedented intrusion “into an area of traditional state regulation.” Massachusetts, 682 F.3d at 13. This is a reason to look upon Section 3 of DOMA with a cold eye. “The absence of precedent . . . is itself instructive; ‘[d]iscriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision.’!” Romer v. Evans, 517 U.S. 620, 633 (1996) (quoting Louisville Gas & Elec. Co. v. Coleman, 277 U.S. 32, 37-38 (1928)).
Moreover, DOMA’s sweep arguably creates more discord and anomaly than uniformity, as many amici observe. Because DOMA defined only a single aspect of domestic relations law, it left standing all other inconsistencies in the laws of the states, such as minimum age, consanguinity, divorce, and paternity. See Br. of Amici Curiae Family Law Professors Supporting Petitioner at 12-13 (noting that “the federal gov-

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ernment has always accepted the states’ different ways of defining parental status” and offering numerous examples of critical differences in state parental policies).
The uniformity rationale is further undermined by inefficiencies that it creates. As a district court in this Circuit found, it was simpler—and more consistent —for the federal government to ask whether a couple was married under the law of the state of domicile, rather than adding “an additional criterion, requiring the federal government to identify and exclude all samesex marital unions from federal recognition.” Pedersen, 2012 WL 3113883 at *48; see Golinski, 824 F. Supp. 2d at 1001-02 (“The passage of DOMA actually undermined administrative consistency by requiring that the federal government, for the first time, discern which state definitions of marriage are entitled to federal recognition and which are not.”).
Because DOMA is an unprecedented breach of longstanding deference to federalism that singles out same-sex marriage as the only inconsistency (among many) in state law that requires a federal rule to achieve uniformity, the rationale premised on uniformity is not an exceedingly persuasive justification for DOMA.
B) Protecting the Fisc
Another professed goal of Congress is to save government resources by limiting the beneficiaries of government marital benefits. H.R. Rep. No. 104-664, at 18 (1996), reprinted in 1996 U.S.C.C.A.N. 2905,

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2922. Fiscal prudence is undoubtedly an important government interest. Windsor and certain amici contest whether the measure will achieve a net benefit to the Treasury; but in matters of the federal budget, Congress has the prerogative to err (if error it is), and cannot be expected to prophesy the future accurately. But the Supreme Court has held that “[t]he saving of welfare costs cannot justify an otherwise invidious classification.” Graham v. Richardson, 403 U.S. 365, 375 (1971) (quotation marks omitted). As the district court observed, “excluding any arbitrarily chosen group of individuals from a government program conserves government resources.” Windsor, 833 F. Supp. 2d at 406 (quotation marks).
Citing Bowen v. Owens, 476 U.S. 340, 348 (1986), BLAG draws the distinction that DOMA did not withdraw benefits from same-sex spouses; since DOMA was enacted before same-sex marriage was permitted in any state, DOMA operated to prevent the extension of benefits to people who never enjoyed them. However, Bowen was decided on rational basis grounds and did not involve an invidious classification. Id. at 34950. Moreover, DOMA is properly considered a benefit withdrawal in the sense that it functionally eliminated longstanding federal recognition of all marriages that are properly ratified under state law—and the federal benefits (and detriments) that come with that recognition.
Furthermore, DOMA is so broad, touching more than a thousand federal laws, that it is not substantially related to fiscal matters. As amicus Citizens for

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Responsibility and Ethics in Washington demonstrates, DOMA impairs a number of federal laws (involving bankruptcy and conflict-of-interest) that have nothing to do with the public fisc. See Br. of Amicus Curiae Citizens for Responsibility and Ethics in Washington at 5-11, 18-23. DOMA transcends a legislative intent to conserve public resources.
For these reasons, DOMA is not substantially related to the important government interest of protecting the fisc.
C) Preserving a Traditional Understanding of Marriage
Congress undertook to justify DOMA as a measure for preserving traditional marriage as an institution. 150 Cong. Rec. 14951. But “[a]ncient lineage of a legal concept does not give [a law] immunity from attack for lacking a rational basis.” Heller, 509 U.S. at 326. A fortiori, tradition is hard to justify as meeting the more demanding test of having a substantial relation to an important government interest. Similar appeals to tradition were made and rejected in litigation concerning anti-sodomy laws. See Lawrence, 539 U.S. at 577-78 (“!!‘[T]he fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack.’!”) (quoting Bowers, 478 U.S. at 216 (Stevens, J., dissenting)) (emphasis added).

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Even if preserving tradition were in itself an important goal, DOMA is not a means to achieve it. As the district court found: “because the decision of whether same-sex couples can marry is left to the states, DOMA does not, strictly speaking, ‘preserve’ the institution of marriage as one between a man and a woman.” Windsor, 833 F. Supp. at 403.
Preservation of a traditional understanding of marriage therefore is not an exceedingly persuasive justification for DOMA.
D) Encouraging Responsible Procreation
Finally, BLAG presents three related reasons why DOMA advances the goals of “responsible childrearing”: DOMA subsidizes procreation because only opposite-sex couples can procreate “naturally”; DOMA subsidizes biological parenting (for more or less the same reason); and DOMA facilitates the optimal parenting arrangement of a mother and a father. We agree that promotion of procreation can be an important government objective. But we do not see how DOMA is substantially related to it.
All three proffered rationales have the same defect: they are cast as incentives for heterosexual couples, incentives that DOMA does not affect in any way. DOMA does not provide any incremental reason for opposite-sex couples to engage in “responsible procre-

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ation.”6 Incentives for opposite-sex couples to marry and procreate (or not) were the same after DOMA was enacted as they were before. 7 Other courts have likewise been unable to find even a rational connection between DOMA and encouragement of responsible procreation and child-rearing. See Massachusetts, 682 F.3d at 14-15 (underscoring the “lack of any demonstrated connection between DOMA’s treatment of same-sex couples and its asserted goal of strengthening the bonds and benefits to society of heterosexual marriage”) (citations omitted); Windsor, 833 F. Supp. at 404-05; Pedersen, 2012 WL 3113883, at *40-43.
DOMA is therefore not substantially related to the important government interest of encouraging procreation.
* * *
DOMA’s classification of same-sex spouses was not substantially related to an important government interest. Accordingly, we hold that Section 3 of DOMA violates equal protection and is therefore unconstitutional.
6 “[T]he argument that withdrawing the designation of ‘marriage’ from same-sex couples could on its own promote the strength or stability of opposite-sex marital relationships lacks any such footing in reality.” Perry v. Brown, 671 F.3d 1052, 1089 (9th Cir. 2012).
7 To the extent that BLAG is suggesting that Congress’ laws might actually influence sexual orientation, there is no evidence to support that claim (and it strikes us as far-fetched).

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V
Our straightforward legal analysis sidesteps the fair point that same-sex marriage is unknown to history and tradition. But law (federal or state) is not concerned with holy matrimony. Government deals with marriage as a civil status—however fundamental —and New York has elected to extend that status to same-sex couples. A state may enforce and dissolve a couple’s marriage, but it cannot sanctify or bless it. For that, the pair must go next door.
CONCLUSION
For the foregoing reasons, we AFFIRM the grant of Windsor’s motion for summary judgment.
STRAUB, Circuit Judge, dissenting in part and concurring in part:
INTRODUCTION
I respectfully dissent in part and concur in part.
I concur with those parts of the majority opinion that (1) deny BLAG’s motion to dismiss the appeal taken by the United States, and (2) decline to certify to the New York Court of Appeals the question of whether the State of New York recognized Windsor’s marriage at the time of her wife’s death. For the reasons that follow, I dissent from the majority’s holding that DOMA is unconstitutional under the Fifth Amendment’s equal protection guarantee.
The majority holds DOMA unconstitutional, a federal law which formalizes the understanding of mar-

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riage in the federal context extant in the Congress, the Presidency, and the Judiciary at the time of DOMA’s enactment and, I daresay, throughout our nation’s history. If this understanding is to be changed, I believe it is for the American people to do so.
Forty years ago, the United States Supreme Court was presented with the essentially identical challenge we have here. The then DOMA-like Minnesota law was upheld in that state’s highest court because it found that the right to marry without regard to sex was not a fundamental right and the law’s thrust was not irrational or invidious discrimination. The Supreme Court of Minnesota held that the applicable Minnesota statute defining marriage as a union between a man and a woman did not violate the United States Constitution. Upon their appeal to the United States Supreme Court, the plaintiffs’ jurisdictional statement squarely claimed that Minnesota’s same-sex marriage prohibition violated their equal protection rights. The Supreme Court, in dismissing the appeal for “want of a substantial federal question,” obviously found no constitutional infirmity in that DOMA-like Minnesota law. I am unable to conclude, as it is suggested we should, that the Supreme Court of the United States would have held as it did had it concluded that the Minnesota law was unconstitutional—at a time when it was required to accept the appellate challenge. The Supreme Court made a merits decision, and has never walked away from it or ever suggested that its disposition elided a merits determination on some procedural basis. It has further instructed us that such a

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disposition, albeit summary, rejects the challenge presented in the jurisdictional statement and is binding on the lower federal courts. And, as recently as 2003, Justice O’Connor reminded us that rational reasons exist to promote the traditional institution of marriage. Baker dictates my decision.
Furthermore, it is argued here that we are to disregard this binding precedent and the traditionally applicable rational basis standard of review and, instead, now create a new type of suspect classification requiring a heightened level of scrutiny in respect of the federal definition of marriage. The Supreme Court has never done so, while reminding us to be wary of creating any new such classification and itself not having created any in decades. I believe it would be imprudent to do so in this case. Eleven of our nation’s federal Circuit Courts of Appeals have not utilized an elevated form of scrutiny as to sexual orientation discrimination. Most recently, the First Circuit went to the extreme of creating a new, increased level of rational basis analysis. This appears to be the first case in which this Court is asked to do the same or more, and the majority is the first to apply intermediate scrutiny to invalidate the federal definition of marriage as between a man and a woman. The discrimination in this case does not involve a recognized suspect or quasi-suspect classification. It is squarely about the preservation of the traditional institution of marriage and its procreation of children. DOMA centers on legitimate state interests that go beyond mere moral disapproval of an excluded group.

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DOMA’s classification is to be reviewed on the basis of whether it has a rational relation to any legitimate end. Utilizing that standard, I conclude that DOMA is constitutional. The rational basis standard is most deferential to the determinations of the Congress. Such may be conclusory and are not to be tried in the traditional fact-oriented process. The public policy choice set forth in DOMA is to be made by Congress, not the Judiciary. In DOMA, Congress has set the boundaries for marriage—all in keeping with American society’s historical view of a marriage as being between a man and a woman. This is not the first time the Congress has signaled its intentions in various definitions of eligibility for federal purposes as to children, marriage, and domestic relations. These have at times conflicted with state laws but the federal law has always prevailed for federal purposes.
The Congress had the benefit of advice from the Department of Justice that DOMA is constitutional. The Congress decided to codify what had always been implicit in federal law. The history of federal legislation in respect of the meaning of marriage or spouse was never even suggested to mean anything other than the lawful union of one man and one woman for all federal purposes. The nation’s traditional understanding was memorialized in DOMA. Congress explicitly sought to recognize for federal purposes the significance of our historical understanding of a mainstream value, joining the biological component of the marriage relationship to the legal responsibility of rearing the offspring of that union. The Congress referenced its

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intention to sanction, for federal purposes, society’s desire to approve the man and woman long term union as the ideal by which to beget and rear children. Indeed, state high courts—as in New York—have credited their legislature’s rational decisions to promote the welfare of children via opposite-sex marriage laws. Further, Congress has articulated, as another legitimate reason for DOMA, that the federal fisc as well as America’s desired right to equitable distribution of benefits should not be based on the particularity or peculiarity of any state’s definition of marriage, but rather the federal government is entitled to codify a single definition of marriage as historically understood.
The Congress was uniform and consistent. And, it chose not to rush ahead with a redefinition at a time when all the states utilized the traditional definition of marriage. It chose to let the issue evolve within American society. The Congress accomplished its task in a manner which continues to respect the principle of federalism. The states remain free to define marriage as they choose, pursuant to DOMA. And, forty-one of our states continue to define marriage as DOMA does. The totality of the foregoing is sufficient to hold DOMA constitutional under the rational basis standard. Even the majority opinion, while ultimately holding DOMA unconstitutional under a higher level of scrutiny, appears to imply that DOMA passes rational basis review. (Maj. Op. at 22:3-9.)
My final observation relates to the Attorney General’s current position. His assertion that sexual

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orientation is a suspect classification and that DOMA fails to pass strict scrutiny is recently minted, and is contrary to an established body of cases to the contrary. The Attorney General’s position is unprecedented in its departure from the Department of Justice’s long-standing policy of defending federal statutes even if the President disagrees as a matter of policy.
At bottom, the issue here is marriage at the federal level for federal purposes, and not other legitimate interests. The Congress and the President formalized in DOMA, for federal purposes, the basic human condition of joining a man and a woman in a long-term relationship and the only one which is inherently capable of producing another generation of humanity. Whether that understanding is to continue is for the American people to decide via their choices in electing the Congress and the President. It is not for the Judiciary to search for new standards by which to negate a rational expression of the nation via the Congress.
DISCUSSION
I. The Origin and Impact of DOMA
DOMA was enacted in 1996 in response to the possible end to the exclusion of same-sex couples from civil marriage in Hawaii. In Baehr v. Lewin, 852 P.2d 44 (Haw. 1993), the Hawaii Supreme Court held that denying same-sex couples the right to marry must be justified under strict scrutiny, and remanded for fur-

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ther proceedings consistent with this determination.1 The House Judiciary Committee’s Report on DOMA (the “House Report”) described Baehr as part of an “orchestrated legal assault being waged against traditional heterosexual marriage.” See H.R. Rep. No. 104-664, at 2-3 (1996), reprinted in 1996 U.S.C.C.A.N. 2905, 2906-07 (“House Report” or “H. Rep.”).
DOMA has two key provisions. Section 2, the choice-of-law section, states:
No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.
28 U.S.C. § 1738C. This provision expresses Congress’s desire to prevent a situation where one state would be forced to recognize same-sex marriages performed and recognized in a different state.
1 Same-sex marriage never became law in Hawaii because, following Baehr, the Hawaii Constitution was amended to allow for the legislative prohibition of same-sex marriage. See Haw. Const. art. I, § 23. But, this did not occur until after DOMA was enacted.

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Section 3, the definitional section of DOMA, provides:
In 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. This provision articulates Congressional recognition, for federal purposes, that marriage is the union of a man and a woman.
The House Report indicates that several motivations led Congress to pass DOMA. It identifies four “governmental interests advanced by this legislation: (1) defending and nurturing the institution of traditional, heterosexual marriage; (2) defending traditional notions of morality; (3) protecting state sovereignty and democratic self-governance; and (4) preserving scarce government resources.” (H. Rep. at 12-18.) The House Report also justifies DOMA as a means to “encourag[e] responsible procreation and child-rearing,” H. Rep. at 13, and as a way to reflect Congress’s “moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality.” (H. Rep. at 16.)
Given the broad range of federal laws to which marital status is relevant, the consequences of DOMA

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are far-reaching. In addition to preventing a surviving same-sex spouse like Windsor from inheriting money or property free from an estate tax, DOMA prevents same-sex married couples from lessening tax burdens by filing joint federal tax returns, see 26 U.S.C. § 1(a)-(c); prevents the surviving spouse of a same-sex marriage from collecting Social Security survivor benefits, see, e.g., 42 U.S.C. § 402; and prevents federal employees from sharing their health insurance and certain other medical benefits with samesex spouses. As a result of DOMA, married samesex couples are deprived of many other, lesser-known rights, benefits, and privileges including, inter alia, benefits relating to intellectual property; housing benefits; veteran’s benefits; immigration entitlements (same-sex spouses are the only legally married spouses of American citizens who can face deportation); employment benefits in the private sector (including sick leave to care for one’s spouse under the Family and Medical Leave Act); and protections relating to domestic and intimate partner crimes and family violence.
In sum, DOMA codifies, for purposes of federal statutes, regulations, and rulings, the understanding of marriage as “only a legal union between one man and one woman as husband and wife,” see 1 U.S.C. § 7, and it reserves to each state the ability to retain that definition as its policy if the state so chooses, or to alter it, as it sees fit. See 28 U.S.C. § 1738C. In enacting DOMA, therefore, Congress (1) maintained the status quo as to the federal definition of marriage for the purposes of federal programs and benefits; and

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(2) recognized the right of any state to allow gays and lesbians to marry while, at the same time, permitting other states to adhere to their existing understandings of the institution of marriage.
II. Standard of Review
We review a grant of summary judgment de novo. Bank of N.Y. v. First Millennium, Inc., 607 F.3d 905, 914 (2d Cir. 2010). Summary judgment is appropriate only if “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). A fact is material “if it ‘might affect the outcome of the suit under the governing law,’!” and “[a]n issue of fact is ‘genuine’ if ‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’!!” Holtz v. Rockefeller & Co., 258 F.3d 62, 69 (2d Cir. 2001) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
There being no dispute as to the material facts in this matter, I find, as a matter of law, that DOMA is constitutional.
III. The Precedential Effect of Baker v. Nelson
The majority concludes that Windsor’s claim is not foreclosed by the Supreme Court’s summary dismissal in Baker v. Nelson, 409 U.S. 810 (1972). In Baker, a same-sex couple seeking the right to marry challenged a Minnesota law that limited marriage to opposite-sex couples on the grounds that it violated due process and equal protection, as it unconstitutionally discriminated on the basis of sex. Baker v. Nelson, 191 N.W.2d 185

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(Minn. 1971). The Minnesota Supreme Court, applying rational basis review, upheld the statute because it found the right to marry without regard to sex was not fundamental, and because classifying who can marry based on sex was not “irrational or invidious discrimination.” Id. at 187. The Court reasoned that “[i]t is unrealistic to think that the original draftsmen of our marriage statutes, which date from territorial days, would have used the term” to mean anything other than “the state of union between persons of the opposite sex.” Id. at 186. In so doing, the Court found support in the 1966 version of Webster’s Third New International Dictionary, the fourth edition of Black’s Law Dictionary, the Book of Genesis, and Skinner v. Oklahoma, which declared that “[m]arriage and procreation are fundamental to the very existence and survival of the race.” 316 U.S. 535, 541 (invalidating Oklahoma’s Habitual Criminal Sterilization Act under the Fourteenth Amendment’s Equal Protection Clause).
The Minnesota Supreme Court rejected petitioners’ reliance on Griswold v. Connecticut, 381 U.S. 479 (1965), and Loving v. Virginia, 388 U.S. 1 (1967). The Minnesota Supreme Court held that the privacy right recognized in Griswold was “inherent in the marital relationship,” and that Loving did not militate in favor of petitioners because “Virginia’s anti-miscegenation statute . . . was invalidated solely on the grounds of its patent racial discrimination.” Id. at 186-87. The Court concluded that in both a “commonsense and in a constitutional sense, there is a clear

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distinction between a martial restriction based merely upon race and one based upon the fundamental difference in sex.” Id. at 187. The United States Supreme Court summarily dismissed the appeal of the Minnesota Supreme Court’s ruling for “want of a substantial federal question.” Baker, 409 U.S. at 810.
The equal protection guarantee of the Fifth Amendment, which applies to the federal government, functions identically to the Equal Protection Clause of the Fourteenth Amendment, which applies to the states. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 217 (1995). Therefore, jurisprudence interpreting one applies to the other. It follows that any ruling of the Supreme Court on a Fourteenth Amendment equal protection challenge to the denial of same-sex marriage applies with equal force to an equal protection challenge to the denial of same-sex marriage under the Fifth Amendment.
According to the jurisdictional statement of the appellants in Baker, the case presented, inter alia, the question of “[w]hether appellee’s refusal, pursuant to Minnesota marriage statutes, to sanctify appellants’ marriage because both are of the male sex violates their rights under the equal protection clause of the Fourteenth Amendment.” (JA-695.) The question presented here, by Windsor, can be formulated in a strikingly similar fashion: “Whether Section 3 of the Defense of Marriage Act is consistent with the equal protection component of the Fifth Amendment Due Process Clause.” (DOJ Br. at 2.)

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Baker is a disposition on the merits, not a mere denial of certiorari, Hicks v. Miranda, 422 U.S. 332, 344 (1975), and any ruling inconsistent with its terms must be avoided. “[L]ower courts are bound by summary decisions by this Court until such time as the Court informs (them) that (they) are not.” Hicks, 422 U.S. at 344-45 (internal quotation omitted).
A summary dismissal means that “the Court found that the decision below was correct and that no substantial question of the merits was raised.” E. Gressman, et al., Supreme Court Practice § 5.18, p. 365 (9th ed. 2007). See also Roxbury Taxpayers Alliance v. Del. Cnty. Bd. of Supervisors, 80 F.3d 42, 48 (2d Cir. 1996) (recognizing dismissal for want of a substantial federal question as “a decision on the merits of the case”); Port Auth. Bondholders Protective Comm. v. Port of N.Y. Auth., 387 F.2d 259, 262 n.3 (2d Cir. 1967) (“[U]nless and until the Supreme Court should instruct otherwise, inferior federal courts had best adhere to the view that if the Court has branded a question as unsubstantial, it remains so except when doctrinal developments indicate otherwise.”); cf. Doe v. Hodgson, 478 F.2d 537, 539 (2d Cir. 1973) (rejecting argument that summary dispositions have “very little precedential significance” and stating that “we are bound by the Supreme Court’s summary affirmances until such time as the Court informs us that we are not”) (internal quotation omitted). Thus, Baker squarely re-

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jected the contention that prohibiting same-sex marriages violated equal protection.2
Whatever factual differences exist between the challenge to the Minnesota law presented in Baker and Windsor’s challenge to DOMA, they are too attenuated to remove the instant case from the scope of Baker’s precedential effect. Although the facts in this case are not identical to those in Baker, the “precedential value of a dismissal for want of a substantial federal question extends beyond the facts of the particular case to all similar cases.” Wright v. Lane Cnty. Dist. Court, 647 F.2d 940, 941 (9th Cir. 1981); see also League of Women Voters of Nassau Cnty. v. Nassau Cnty. Bd. of Supervisors, 737 F.2d 155, 164 (2d Cir. 1984) (the court’s “responsibility in gauging [a summary disposition’s] authority . . . is to mark out the ‘reach and content’ of that prior disposition”).
The same-sex couple in Baker argued that Minnesota’s exclusion of same-sex couples from the institution of civil marriage violated the Equal Protection Clause because it was discrimination not rationally related to any legitimate governmental interest. Forty years may have passed, but Windsor makes the same claim today (based on, inter alia, similar arguments regarding the over-and under-inclusiveness of the lim-
2 1988 legislation curtailing the Supreme Court’s appellate jurisdiction did not change the precedential import of summary dispositions. “Abolition of the [mandatory] appeal jurisdiction does not change this rule.” 16B Charles Alan Wright & Arthur R. Miller, et al., Federal Practice & Procedure § 4014 (2d ed. 2012).

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itation on the marriage right vis-à-vis the procreation rationale). Whatever differences exist between Windsor’s claim and those advanced in Baker, they are insignificant compared to the central fact that both cases present equal protection challenges to laws prohibiting the recognition of any marriage entered into by two persons of the same sex. Thus, any distinctions do not render DOMA sufficiently different from Minnesota’s marriage law at the time of Baker such that it can be said the issues in this case were not before and decided by the Supreme Court. The relevant facts of this case are substantially similar to those of Baker, which necessarily decided that a state law defining marriage as a union between a man and woman does not violate the Equal Protection Clause. Baker is the last word from the Supreme Court regarding the constitutionality of a state law limiting marriage to opposite-sex couples under the Equal Protection Clause and thus remains binding on this Court, given that the equal protection component of the Fifth Amendment is identical to and coextensive with the Fourteenth Amendment guarantee.
Since Baker holds that states may use the traditional definition of marriage for state purposes without violating equal protection, it necessarily follows that Congress may define marriage the same way for federal purposes without violating equal protection. See Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 870 (8th Cir. 2006) (“In the nearly one hundred and fifty years since the Fourteenth Amendment was adopted, to our knowledge no Justice of the Supreme Court has

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suggested that a state statute or constitutional provision codifying the traditional definition of marriage violates the Equal Protection Clause or any other provision of the United States Constitution.”); McConnell v. Nooner, 547 F.2d 54, 56 (8th Cir. 1976) (per curiam) (Baker “constitutes an adjudication on the merits which is binding on the lower federal courts”); Adams v. Howerton, 486 F. Supp. 1119, 1124 (C.D. Cal. 1980) (finding Baker controlling in case where same-sex spouse appealed denial of petition with INS to be classified as “immediate relative”), aff!’d, 673 F.2d 1036, 1039 n.2 (9th Cir. 1982) (acknowledging precedential nature of Baker); Wilson v. Ake, 354 F. Supp. 2d 1298, 1305 (M.D. Fla. 2005) (Baker is “binding precedent” with “dispositive effect” requiring dismissal of equal protection challenge to DOMA).
The correctness of the Baker holding was placed squarely before the Supreme Court in that case’s jurisdictional statement. The Court’s summary dismissal for want of a substantial federal question is therefore a controlling precedent, unless and until re- examined by the Supreme Court. Hicks, 422 U.S. at 343-45. “The Court neither acknowledges nor holds that other courts should ever conclude that its more recent cases have, by implication, overruled an earlier precedent. Rather, lower courts should follow the case which directly controls, leaving to this Court the

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prerogative of overruling its own decisions.” Agostini v. Felton, 521 U.S. 203, 207 (1997).3
The close resemblance between the issue presented in Baker and the claim advanced by Windsor means that the scope of Baker controls the question raised by this appeal, foreclosing Windsor’s claim. That is, both cases involve the validity of same-sex couples’ deprivation of marriage rights, a question already presented to and adjudicated on the merits by the Supreme Court. In addition, if, as Baker held, denying same-sex couples the right to marry does not violate equal protection, it follows that denying same-sex couples a subset of the rights (i.e., federal rights) associated with marriage is also constitutional. This con-
3 Although we have noted that questions may stop being “insubstantial” when subsequent doctrinal developments so indicate, Port Auth. Bondholders, 387 F.2d at 263 n.3, the Supreme Court has never, despite the numerous developments in the last forty years, stated that its holding in Baker is invalid. I am not convinced by Windsor’s arguments that the Supreme Court’s decisions in Romer v. Evans and Lawrence v. Texas have eroded Baker’s foundations such that it no longer holds sway.
In Romer, the Supreme Court applied rational basis scrutiny to laws that discriminated on the basis of sexual orientation. In Lawrence, the Supreme Court expressly stated that “[t]he present case does not involve . . . whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Lawrence, 539 U.S. at 578. Consequently, there are no doctrinal changes in Supreme Court jurisprudence implying that Baker is no longer binding authority and Baker’s effect therefore hinges on whether the issues in this case were presented to and necessarily decided by the Supreme Court.

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clusion is inescapable. For the sake of completeness, in the event that there is any doubt that Baker forecloses Windsor’s claim, I now proceed to consider the merits.
IV. Principles of Equal Protection Analysis
“The Due Process Clause of the Fifth Amendment assures every person the equal protection of the laws, ‘which is essentially a direction that all persons similarly situated should be treated alike.’!” Able v. United States, 155 F.3d 628, 631 (2d Cir. 1998) (quoting City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985)).
When the subject of unequal treatment is a mem ber of a class that historically has been the object of discrimination, or government conduct employs a classification—inter alia, race, alienage, nationality, sex, and illegitimacy—closely associated with inequality, “the Supreme Court has required a higher degree of justification than a rational basis, either strict or intermediate scrutiny. Under the strict scrutiny test the government must demonstrate a compelling need for the different treatment and that the provision in question is narrowly tailored to achieve its objective. Under intermediate scrutiny, the government must at least demonstrate that the classification is substantially related to an important governmental objective.” Id. at 631-32 (internal citations omitted).
Where no suspect classification is employed or fundamental right infringed upon by government conduct, the constitutional guarantee of equal protection is sat-

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isfied where a classification bears a rational relationship to an appropriate governmental interest. See Heller v. Doe, 509 U.S. 312, 320 (1993). In evaluating whether the asserted purposes of a federal law are rationally related to its ends, we defer to the judgment of Congress. Congressional enactments that do not infringe upon a fundamental right or employ a suspect classification are entitled to “a strong presumption of validity,” and must be sustained if “!‘there is any reasonably conceivable state of facts that could provide a rational basis for the classification.’!” Id. at 319-20 (quoting FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993)). Rational basis review in an equal protection analysis does not authorize “!‘the judiciary [to] sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines.’!” Id. at 319 (quoting New Orleans v. Dukes, 427 U.S. 297, 303 (1976)).
Unlike under heightened scrutiny, in a rational basis equal protection analysis courts look to any “conceivable basis” for the challenged law, not limited to those articulated by or even consistent with the rationales offered by the legislature. Beach Commc’ns, 508 U.S. at 312.4 Those attacking the rationality of a leg-
4 Indeed, in Beach Communications, the Supreme Court upheld the challenged law using a posited reason for a federal agency regulation, even though Congress had previously rejected that purpose and the regulation presented a conflict in the statutory scheme. Id. at 318.

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islative classification have the burden “to negative every conceivable basis which might support it.” Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364 (1973) (internal quotation omitted). “The Constitution presumes that, absent some reason to infer antipathy, even improvident decisions will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted.” Vance v. Bradley, 440 U.S. 93, 97 (1979) (footnote omitted). “[A] law will be sustained if it can be said to advance a legitimate government interest, even if the law seems unwise or works to the disadvantage of a particular group, or if the rationale for it seems tenuous.” Romer v. Evans, 517 U.S. 620, 632 (1996). Under the rational review framework, where there are “plausible reasons” for Congressional action, a court’s “inquiry is at an end.” U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 179 (1980). This standard of review is “a paradigm of judicial restraint.” Beach Commc’ns, 508 U.S. at 314. “[C]ourts are compelled under rational-basis review to accept a legislature’s generalizations even when there is an imperfect fit between means and ends.” Heller, 509 U.S. at 321. “Only by faithful adherence to th[e] guiding principle of [restraint in] judicial review of legislation is it possible to preserve to the legislative branch its rightful independence and its ability to function.” Beach Commc’ns, 508 U.S. at 315 (internal quotation omitted).

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Having a conceivable legitimate governmental interest is, alone, not sufficient for rational basis review. To survive rational basis review, a law must also have a rational relationship to the asserted legitimate governmental interest. In assessing the existence of a rational relationship, courts should be guided by the knowledge that rational basis review is “the most relaxed and tolerant form of judicial scrutiny under the Equal Protection Clause.” City of Dallas v. Stanglin, 490 U.S. 19, 26 (1989).
However, even under rational basis review, a law will fail if it seeks to further an illegitimate end. For example, “the accommodation of . . . bias or animosity can never serve as a legitimate government interest; mere negative attitudes, or fear, unsubstantiated by factors which are properly cognizable in the circumstances, are not permissible bases for differential treatment by the government.” Able, 155 F.3d at 634 (internal quotations omitted). Laws that single out a certain class of citizens for disfavored legal status “raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.” Romer, 517 U.S. at 633-34. And such animosity cannot constitute a legitimate governmental objective. Dep’t of Agric. v. Moreno, 413 U.S. 528, 534 (1973).
Where the discrimination challenged is motivated both by impermissible purposes (e.g., animus, negative attitudes, malice, fear, the desire to harm a group, moral disapproval, ignorance) and permissible purposes (under rational basis review, virtually any goal

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not forbidden by the Constitution), the law may still be constitutionally valid. While “negative attitudes,” “fear” or other biases “may often accompany irrational (and therefore unconstitutional) discrimination, their presence alone does not a constitutional violation make.” Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 367 (2001).
Because any single valid rationale is sufficient to support DOMA’s constitutionality, I analyze only as many possible interests as necessary to sustain the law. See F.C.C. v. Beach Commc’n, Inc., 508 U.S. 307, 317 (1993). I find that several of BLAG’s rationale suffice to satisfy constitutional scrutiny.
V. DOMA Survives Rational Basis Review
The House Report identifies four governmental interests advanced by DOMA: “(1) defending and nurturing the institution of traditional, heterosexual marriage; (2) defending traditional notions of morality; (3) protecting state sovereignty and democratic selfgovernance; and (4) preserving scarce government resources.” (H. Rep. at 12.)
BLAG contends that DOMA is supported by six rationales, all of which independently justify the legislation under rational basis review. DOMA, it is argued, advances governmental interest in: (1) maintaining a uniform federal definition of marriage, (2) preserving the public fisc and respecting prior legislative judgments, (3) exercising caution, (4) recognizing opposite-sex couples’ unique ability to procreate, (5) incentivizing the raising of children by

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their biological parents, and (6) encouraging childrearing in a setting with both a mother and a father.
At oral argument, the Department of Justice confirmed that in 1996, in “a couple of different letters,” it indicated to Congress that it believed “courts would uphold section three of DOMA.” (Oral Arg. Tr. 42:8-14.) Specifically, in a letter dated May 14, 1996, the Department of Justice indicated to the Honorable Henry J. Hyde, Chairman of the House Committee on the Judiciary, that “[t]he Department of Justice believes that H.R. 3396 [DOMA] would be sustained as constitutional.” (H. Rep. at 32.) On May 29, 1996, the Department of Justice again advised Congress, in a letter to the Honorable Charles T. Canady, Chairman of the House Subcommittee on the Constitution (Committee on the Judiciary), that DOMA “would be sustained as constitutional if challenged in court, and that it does not raise any legal issues that necessitate further comment by the Department.” (Id. at 32-33.)
The Department of Justice maintained this position until early 2011, defending DOMA against numerous lawsuits in the intervening years. Indeed, from 2009 through early 2011, the Department of Justice took the position that uniformity and a desire to preserve the status quo vis-à-vis a federal definition of marriage provided a rationale for DOMA sufficient to sustain the law under rational basis review, which was argued to be the applicable standard of scrutiny. See Office of Pers. Mgmt. Mem. of Law in Supp. of Defs.’ Mot. to Dismiss, Gill v. Office of Pers. Mgmt., No. 09-cv-10309

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(JLT), at 16-19 (D. Mass. Sept. 18, 2009) (docket entry no. 21); U.S. Dep’t of Health and Human Servs. Mem. of P. & A. in Supp. of Defs.’ Mot. to Dismiss, Commonwealth of Mass. v. U.S. Dep’t of Health and Human Servs., No. 09-cv-11156 (JLT), at 28-31 (D. Mass. Oct. 30, 2009) (docket entry no. 17); U.S. Dep’t of the Treasury Mot. to Dismiss, Dragovich v. Dep’t of Treasury, No. 10-cv-1564 (CW), at 18-24 (N.D. Cal. July 2, 2010) (docket entry no. 25); U.S. Office of Pers. Mgmt. Supplemental Br. in Resp. to Ct.’s Order of Oct. 15, 2010, Golinski v. Office of Pers. Mgmt., No. 10-257 (JSW), at 10-15 (N.D. Cal. Nov. 19, 2010) (docket entry no. 83). As late as January of 2011, the Department of Justice told the First Circuit that DOMA was not unconstitutional. See Corrected Br. for the U.S. Dep’t of Health and Human Servs., Commonwealth of Mass. v. U.S. Dep’t of Health and Human Servs., Nos. 10-2204, 10-2207, 10-2214, at 26-55 (1st Cir. Jan. 19, 2011). No relevant facts or law have changed since early 2011 when the Department of Justice last took this position. Indeed, at oral argument, the Department of Justice acknowledged that its current position on DOMA is, in part, a result of “a decision that has been made by the Attorney General and by the President, [a] constitutional judgment.” (Oral Arg. Tr. 42:21-43:6.)
Even now the Department of Justice acknowledges that “a reasonable argument for Section 3’s constitutionality may be proffered under” the rational basis standard, and that there exists “substantial circuit court authority applying rational basis review to

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sexual-orientation classifications.” (JA-56, JA-53.) At argument, the Department of Justice summarized its most recent arguments for DOMA’s rational basis as “maintaining the status quo” and achieving “a degree of uniformity for federal benefits, coupled with preserving room for state policy development.” (Oral Arg. Tr. 44:3-7.)
As explained above, only if there is no conceivable legitimate governmental interest, or DOMA is not rationally related to any such interest, will the statute be unconstitutional under rational basis review.
A. Responsible Procreation and Childrearing by Biological Parents
In enacting DOMA, Congress sought to explicitly recognize, for federal purposes, the biological component of the marital relationship and the legal responsibility of rearing the offspring of such a union. Numerous state high courts have accepted this as a rational basis for excluding same-sex couples, even legally recognized same-sex parents, from the institution of civil marriage. DOMA advances the governmental interest in connecting marriage to biological procreation by excluding certain couples who cannot procreate simply by joinder of their different sexual being from the federal benefits of marital status.
Under rational basis review, courts must consider and credit all rationales for restricting federal marriage benefits to opposite-sex couples that do not evince unconstitutional animus. Numerous courts have recognized that denying same-sex couples federal

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marriage rights or even the right to marry at all can be grounded in reasons other than animus. See Massachusetts v. U.S. Dep’t of Health and Human Servs., 682 F.3d 1, 16 (1st Cir. 2012) (“Massachusetts v. HHS”) (“we do not rely upon the charge that DOMA’s hidden but dominant purpose was hostility to homosexuality”); In re Kandu, 315 B.R. 123, 147-48 (Bankr. W.D. Wash. 2004) (noting that DOMA can be explained by legitimate governmental interests); Standhardt v. Superior Court, 77 P.3d 451, 465 (Ariz. Ct. App. 2003) (“Arizona’s prohibition of same-sex marriages furthers a proper legislative end and was not enacted simply to make same-sex couples unequal to everyone else.”); Jones v. Hallahan, 501 S.W.2d 588, 590 (Ky. Ct. App. 1973) (“We do not consider the refusal to issue the [marriage] license [to persons of the same sex] a punishment.”); In re Marriage of J.B. & H.B., 326 S.W.3d 654, 680 (Tex. Ct. App. 2010) (rejecting argument that limiting marriage and divorce to opposite-sex couples is “explicable only by class-based animus”). See also Lawrence v. Texas, 539 U.S. 558, 585 (2003) (“Unlike the moral disapproval of same-sex relations—the asserted state interest in this case—other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.”) (O’Connor, J., concurring).
The interest in recognizing the connections between marriage and childrearing by biological parents can be broken down into several components. First, DOMA expresses Congressional recognition that “responsible begetting and rearing of new generations is of fun-

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damental importance to civil society.” (Amicus Br. of States of Indiana, et al. at 25.) Because the state has an interest in children, the state is thus also interested in preventing “irresponsible procreation,” a phenomenon implicated exclusively by heterosexuals. (BLAG Br. at 49.) Because of these legitimate interests, reserving federal marriage rights to opposite-sex couples “protect[s] civil society,” Amicus Br. of States of Indiana, et al. at 25, because without the inducement of marriage, opposite-sex couples would accidentally procreate, giving rise to unstable and unhealthy families. Marriage thus plays the important role of “channel[ing opposite-sex] sexual desires” which, in the absence of marriage, would result in unstable relationships, which have been documented to be harmful to children. (Amicus Br. of States of Indiana, et al. at 26.)
As stated by BLAG, “[m]arriage attempts to promote permanence and stability, which are vitally important to the welfare of the children of the marriage.” (BLAG Br. at 48-49.) That is, marriage works to combat the risk of instability which is characteristic of inherently procreative opposite-sex relationships, but absent from same-sex relationships. See Amicus Br. of States of Indiana, et al. at 24 (“civil marriage recognition arises from the need to encourage biological parents to remain together for the sake of their children”).5 DOMA advances this interest, in that the
5 See also Andersen v. King Cnty., 138 P.3d 963, 982-83 (Wash. 2006) (“[A]s Skinner, Loving, and Zablocki indicate, marriage is traditionally linked to procreation and survival of the human race.

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state only needs to provide incentives to opposite-sex couples in the form of marriage, because only oppositesex couples have unintended, unplanned, unwanted children. Same-sex couples, by contrast, reproduce only “deliberately choosing to do so and by devoting a serious investment of time, attention, and resources.” (Amicus Br. of States of Indiana, et al. at 35.)
Numerous courts have accepted this rationale as a basis for excluding same-sex couples from civil marriage. The New York Court of Appeals, for instance, determined that
The Legislature could . . . find that [heterosexual] relationships are all too often casual or tem-
Heterosexual couples are the only couples who can produce biological offspring of the couple. And the link between opposite-sex marriage and procreation is not defeated by the fact that the law allows opposite-sex marriage regardless of a couple’s willingness or ability to procreate. The facts that all opposite-sex couples do not have children and that single-sex couples raise children and have children with third party assistance or through adoption do not mean that limiting marriage to opposite-sex couples lacks a rational basis. Such over- or under-inclusiveness does not defeat finding a rational basis.”); Lewis v. Harris, 875 A.2d 259, 277 (N.J. App. Div. 2005) (Parrillo, J.A.D., concurring) (“[A] core feature of marriage is its binary, opposite-sex nature. . . . [T]he binary idea of marriage arose precisely because there are two sexes.”); Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 979 n.1 (Mass. 2003) (Sosman, J., dissenting) (“[T]he reasons justifying the civil marriage laws are inextricably linked to the fact that human sexual intercourse between a man and a woman frequently results in pregnancy and childbirth . . . that fact lies at the core of why society fashioned the institution of marriage in the first place.”).

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porary. It could find that an important function of marriage is to create more stability and permanence in the relationships that cause children to be born. It thus could choose to offer an inducement —in the form of marriage and its attendant benefits —to opposite-sex couples who make a solemn, longterm commitment to each other. The Legislature could find that this rationale for marriage does not apply with comparable force to same-sex couples. These couples can become parents by adoption, or by artificial insemination or other technological marvels, but they do not become parents as a result of accident or impulse. The Legislature could find that unstable relationships between people of the opposite sex present a greater danger that children will be born into or grow up in unstable homes than is the case with same- sex couples, and thus that promoting stability in opposite-sex relationships will help children more.
Hernandez v. Robles, 855 N.E.2d 1, 7 (N.Y. 2006) (plurality opinion). See also Andersen, 138 P.3d at 1002 (Johnson, J., concurring); Morrison v. Sadler, 821 N.E.2d 15, 24-25 (Ind. Ct. App. 2005).
DOMA furthers the interest in recognizing the link between marriage and procreation for the reasons noted by the Maryland Court of Appeals:
[S]afeguarding an environment most conducive to the stable propagation and continuance of the human race is a legitimate government interest. The question remains whether there exists a sufficient link between an interest in fostering a stable envi-

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ronment for procreation and the means at hand used to further that goal, i.e., an implicit restriction on those who wish to avail themselves of Statesanctioned marriage. We conclude that there does exist a sufficient link. . . . This “inextricable link” between marriage and procreation reasonably could support the definition of marriage as between a man and a woman only, because it is that relationship that is capable of producing biological offspring of both members (advances in reproductive technologies notwithstanding).
Conaway v. Deane, 932 A.2d 571, 630-31 (Md. 2007) (internal citations omitted).
Another component of the procreation and childrearing rationale for restricting federal rights to opposite-sex marriage is the Congressional desire to have children raised in families with only biological mothers and fathers, which same-sex couples cannot provide. Thus, BLAG contends that DOMA “offer[s] special encouragement for relationships that result in mothers and fathers jointly raising their biological children,” an interest which “simply does not apply to same-sex couples.” (BLAG Br. at 54.) DOMA accomplishes this encouragement by limiting federal marriage rights to opposite-sex couples.
Congress might well have enacted DOMA after consulting “the entire history of civilization” regarding the “problems” that arise when there is no institution to encourage biological parents to remain together.

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(Amicus Br. of States of Indiana, et al. at 35.) This, too, has been accepted as a rational reason for excluding same-sex couples (including legally recognized same-sex parents) from civil marriages. See, e.g., Hernandez, 855 N.E.2d at 8 (plurality opinion) (“Plaintiffs seem to assume that they have demonstrated the irrationality of the view that opposite-sex marriages offer advantages to children by showing there is no scientific evidence to support it. Even assuming no such evidence exists, this reasoning is flawed. In the absence of conclusive scientific evidence, the Legislature could rationally proceed on the commonsense premise that children will do best with a mother and father in the home.”).6 I agree with BLAG that the evidence offered by Windsor and the professional organizations and child welfare amici who advocate for affirmance does not make Congress’s “common sense” regarding the needs of children a forbidden governmental interest under rational basis review. (BLAG Br. at 55.)
As noted hereafter in the context of uniformity, the manner in which DOMA furthers the legitimate governmental interests in childrearing, responsible procreation, and biological parentage respects the prin-
6 Amici American Psychological Association, American Academy of Pediatrics, American Psychiatric Association, American Psychoanalytic Association, National Association of Social Workers, and New York State Psychological Association argue that no such credible evidence exists. See Amicus Br. of the American Psychological Association, et al. at 15-23.

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ciples of federalism. States may still arrive at individual determinations regarding who may and may not marry, and DOMA does nothing to change this functioning of our federal system.7 DOMA simply excludes certain couples who are married under state law from eligibility for certain federal rights, benefits, privileges, and obligations.
DOMA’s exclusion of married same-sex couples, under the rational basis review where means and ends need not match, see Heller, 509 U.S. at 321, is sufficiently related to the federal interest in recognizing the link between the marital relationship and the rearing of its offspring.
B. Maintaining the Status Quo of Uniformity
BLAG contends that DOMA is rationally related to the legitimate governmental “interest in uniform eligibility for federal marital benefits.” (BLAG Br. at 39.) Congress, it is argued, has a “long history of enacting federal definitions of marriage that do not simply in-
7 The majority’s holding that DOMA’s definition of marriage as between a man and a woman is unconstitutional will doubtless be used to invalidate the laws in those forty-one states. Such has to be so given the fact that the equal protection analysis by the majority in this case for federal purposes pursuant to the Fifth Amendment is the same as that to be applied as to the states pursuant to the Fourteenth Amendment and is, therefore, the yardstick by which to hold unconstitutional the law in the forty-one states. Indeed, an affirmance by the Supreme Court of the majority’s view would likely doom the laws of the forty-one states which exclude same-sex couples from civil marriage.

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corporate state definitions and inevitably will conflict with some of them.” (Id. at 42-43.) A uniform federal definition of marriage “ensures that similarlysituated couples will have the same benefits regardless of which state they happen to live in.” (Id. at 39-40.) The District Court expressed skepticism regarding the legitimacy of this end, but principally rejected this justification because DOMA “intrude[s] upon the states’ business of regulating domestic relations.” (JA-1007-09.) Windsor and various amici argue that “[t]he federal government [has always] accepted states’ determinations of who was validly married-no matter how far states’ criteria for validity diverged from one other,” Historians Amicus Br. at 15, and that the promulgation of a federal definition of marriage “injects the federal government into domestic relations law and works to delegitimize both the lawful marriages of thousands of same-sex couples and the considered judgments of . . . [s]tates to sanction same-sex marriages, . . . intrud[ing] on core state powers.” (States of New York, Vermont, and Connecticut Amicus Br. at 14.)
The subject of domestic relations, including marriage, has been the province of the states. See Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12 (2004) (“Long ago we observed that ‘[t]he whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.’!”) (quoting In re Burrus, 136 U.S. 586, 593 (1890)). But DOMA does not change this, and does nothing to strip the status

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that states confer on couples they marry. Instead, DOMA limits the federal benefits, rights, privileges, and responsibilities of marriage to a subset of those deemed married under state law.
That the federal government often defers to state determinations regarding marriage does not obligate it to do so. While a state may be perfectly disinterested in prying into the reasons a couple marries, the federal government remains deeply and properly concerned with the reason(s) why a couple weds. See Massachusetts v. HHS, 682 F.3d at 12 (“Congress surely has an interest in who counts as married. The statutes and programs that section 3 governs are federal regimes such as social security, the Internal Revenue Code and medical insurance for federal workers; and their benefit structure requires deciding who is married to whom.”).
For example, when people marry for immigration purposes, the federal government may validly deem the marriage “fraudulent,” even though it remains valid under state law. See 8 U.S.C. § 1325(c) (“Any individual who knowingly enters into a marriage for the purpose of evading any provision of the immigration laws shall be imprisoned for not more than 5 years, or fined not more than $250,000, or both.”); 8 U.S.C. §§ 1154(a)(2)(A), 1255(e). Courts have recognized this principle. See, e.g., Taing v. Napolitano, 567 F.3d 19, 21 (1st Cir. 2009) (plaintiff remained a “spouse” and “immediate relative” under the Immigration and Naturalization Act, even if her marriage actually ceased under state law upon the death of her

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spouse); Adams v. Howerton, 673 F.2d 1036, 1040-41 (9th Cir. 1982) (even same-sex marriage valid under state law does not count as a marriage for federal immigration law purposes); Lutwak v. United States, 344 U.S. 604, 610-11 (1953) (noting a marriage’s adherence to local law is immaterial if the marriage was “part of [a] conspiracy to defraud the United States”). Tellingly, Windsor does not argue that federal Immigration and Customs Enforcement interferes with traditional state functions when it leaves states free to recognize, for their own purposes, any marriage they like but refuses to grant legal residency to immigrants it believes married only to secure the benefits of marriage.
DOMA alters the general, but by no means unyielding, practice of the federal government accepting marriages recognized by state law. However, at the time Congress acted, all states recognized only opposite-sex marriages, and the fact that Congress chose to maintain that status quo in response to this new, evolving social issue does not invalidate its legislative interest. It may be that, prior to DOMA, any federal “definition” of marriage was limited to advancing the targeted goal of a particular federal program, not a blanket, undifferentiated policy choice imposed on statuses created by states. See Massachusetts v. HHS, 682 F.3d at 12. But this fact does not render the asserted interest in uniformity illegitimate or so lacking a “footing in the realities of the subject addressed by the legislation” as to fail rational basis review. Heller, 509 U.S. at 321.

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Section 3 of DOMA was enacted as the debate regarding marriage equality was just beginning in the states. At that time, no state had actually permitted same-sex couples to marry. In the intervening years, six states and the District of Columbia have enacted statutes or issued court decisions that permit same-sex marriage.8 On the other hand, thirty states have amended their founding documents by constitutional amendment to prohibit same-sex marriage, and eleven more states have enacted statutes to the same effect.9
8 See N.Y. Dom. Rel. Law § 10-a (McKinney 2011); N.H. Rev. Stat. § 457:1-a (2010); D.C. Stat. § 46-401 (2010); Vt. Stat. Ann. tit. 15 § 8 (2009); Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009); Kerrigan v. Comm’r of Pub. Health, 957 A.2d 407 (Conn. 2008); Goodridge, 798 N.E.2d 941 (Mass. 2003).
9 See Ala. Const. Art. I, § 36.03; Ala. Code § 30-1-19; Alaska Const. Art. 1, § 25; Alaska Stat. § 25.05.013; Ariz. Const. Art. 30 § 1; Ariz. Rev. Stat. §§ 25-101 & 25-112; Ark. Const. Amend. 83, § 1; Ark. Code Ann. §§ 9-11-109, 9-11-107, 9-11-208; Cal. Const. Art. I, § 7.5; Colo. Const. Art. 2, § 31; Colo. Rev. Stat. § 14-2-104; 13 Del. Code Ann. § 101; Fla. Const. Art. 1 § 27; Fla. Stat. § 741.212; Ga. Const. Art. 1, § 4, I; Ga. Code Ann. § 19-3-3.1; Haw. Const. Art. 1, § 23; Haw. Rev. Stat. § 572-1; Idaho Const. Art. III, § 28; Idaho Code Ann. §§ 32-201 & 32-209; 750 Ill. Comp. Stat. 5/212; Ind. Code § 31-11-1-1; Kan. Const. Art. 15, § 16; Kan. Stat. Ann. §§ 23-101 & 23-115; Ky. Const § 233A; Ky. Rev. Stat. Ann. §§ 402.005 & 402.020; La. Const. Art. 12, § 15; La. Civ. Code Ann. Art. 86, 89; Me. Rev. Stat. Ann. tit. 19-A, § 701; Md. Code Ann., Fam. Law, § 2-201; Mich. Const. Art. 1, § 25; Mich. Comp. Laws § 551.1; Minn. Stat. § 517.03; Miss. Const. Art. 14, § 263A; Miss. Code Ann. § 93-1-1; Mo. Const. Art. I, § 33; Mo. Rev. Stat. § 451.022; Mont. Const. Art. XIII, § 7; Mont. Code Ann. § 40-1-401; Neb. Const. Art. I, § 29; Nev. Const. Art. 1, § 21; N.C. Gen. Stat. § 51-1.2; N.D. Const. Art.

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Given the evolving nature of this issue, Congress was entitled to maintain the status quo pending further developments. Otherwise, “marriage” and “spouse” for the purposes of federal law would depend on the outcome of this debate in each state, with the meanings of those terms under federal law changing with any change in a given state. As Windsor rightly notes, prior to DOMA, a state’s authorization of samesex marriage had numerous implications for federal laws to the extent those laws were construed to incorporate state-law definitions of marriage. In order to avoid federal implications of state-law developments in the area of marriage, Congress, by enacting DOMA, reasonably froze federal benefits policy as it existed in 1996 with respect to same-sex marriage.
The federal government can legitimately limit the
XI, § 28; N.D. Cent. Code §§ 14-03-01 & 14-03-08; Ohio Const. Art. 15, § 11; Ohio Rev. Code Ann. § 3101.01(C); Okla. Const. Art. 2, § 35; Okla. Stat. Ann. tit. 43, § 3.1; Or. Const. Art. XV, § 5a; 23 Pa. Cons. Stat. §§ 1102, 1704; S.C. Const. Art. XVII, § 15; S.C. Code Ann. § 20-1-15; S.D. Const. Art. 21, § 9; S.D. Codified Laws § 25-1-1; Tenn. Const. Art. XI, § 18; Tenn. Code Ann. § 36-3-113; Tex. Const. Art. 1, § 32; Tex. Fam. Code Ann. §§ 2.001(b) & 6.204; Utah Const. Art. I, § 29; Utah Code Ann. §§ 30-1-2(5) & 30-1-4.1; Va. Const. Art. 1, § 15-A; Va. Code Ann. §§ 20-45.2 & 20-45.3; Wash. Rev. Code § 26.04.010(1); W. Va. Code § 48-2-603; Wis. Const. Art. XIII, § 13; Wis. Stat. §§ 765.001(2) & 765.04; Wyo. Stat. Ann. § 20-1-101. The statutory prohibitions or amendments of nineteen of these forty-one states forbid not only same-sex marriage, but any other form of relationship recognition, such as domestic partnership or civil union, between two persons of the same sex.

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national impact of state-level policy development. Doing so facilitates the ability of the states to serve as laboratories of policy development. As the Massachusetts Supreme Court stated when it held that the Massachusetts state constitution required allowing same-sex couples to marry, “[t]he genius of our Federal system is that each State’s Constitution has vitality specific to its own traditions, and that . . . each State is free to address difficult issues of individual liberty in . . . its own” manner. Goodridge, 798 N.E.2d at 967.
Windsor argues that DOMA upends, rather than preserves, the status quo of Congressional control over the meaning of marriage for federal purposes. But this argument is contrary to the clear legal landscape at the time of DOMA’s enactment—that is, at the time, all states were in full accord in recognizing only opposite-sex marriages. Congress’s actions allow it to maintain a “wait-and-see” approach in the face of evolving state approaches to same-sex marriages, thereby avoiding the need to immediately deal with the potentially significant impact on federal law that a state’s recognition of same-sex marriage could have. Indeed, the far-reaching impact of the federal definition of marriage in terms of rights, benefits, responsibilities, and privileges (upon which Windsor places great emphasis) means that Congressional action can quite reasonably be understood to have perceived this potential impact and decided that it was in the federal government’s interest to maintain con-

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sistency and uniformity in distributing federal benefits and administering federal programs.
Congress may, and both parties agree that it often does, borrow definitions from state law, but Windsor is incorrect to suggest that it is required to do so or is irrational when it does not. Put directly, Congress may also legitimately take an approach that attempts to create uniformity across the states. In DOMA, Congress chose to adopt a uniform federal definition of “marriage” and “spouse” for purposes of federal laws. Congress could rationally conclude that maintaining the status quo at the federal level during a period of flux would allow states that wish to make changes in the legal definition of marriage to retain their inherent prerogative to do so, while permitting others to maintain the traditional view.
Rational basis review embodies the principle that, as Congress did in enacting DOMA, legislatures are free to refine their “preferred approach as circumstances change and as they develop a more nuanced understanding of how best to proceed.” Massachusetts v. Envtl. Prot. Agency, 549 U.S. 497, 524 (2007). Contrary to Windsor’s contention, the preservation of the status quo—the definition of marriage that was uniform among all fifty states in the year of DOMA’s passage—constitutes a legitimate governmental interest insofar as it allows Congress the ability to “wait and see” how the issue of same-sex marriage would take shape among the many and diverse states of our nation.
The uniformity that DOMA recognized and main-

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tained has been recognized both explicitly and implicitly by courts for many years from various jurisdictions across the nation. Perhaps most explicitly, the Supreme Court stated:
[N]o legislation can be supposed more wholesome and necessary in the founding of a free, self- governing commonwealth, fit to take rank as one of the co-ordinate states of the Union, than that which seeks to establish it on the basis of the idea of family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement.
Murphy v. Ramsey, 114 U.S. 15, 45 (1885).
Other courts have explained that this uniformity has not always been explicit or necessary to state. Almost forty years ago a Washington state court put it thus: “[A]lthough it appears that the appellate courts of this state until now have not been required to define specifically what constitutes a marriage, it is apparent from a review of cases dealing with legal questions arising out of the marital relationship that the definition of marriage as the legal union of one man and one woman who are otherwise qualified to enter into the relationship not only is clearly implied from such cases, but also was deemed by the court in each case to be so obvious as not to require recitation.” Singer v. Hara, 522 P.2d 1187, 1191-92 (Wash. Ct. App. 1974).

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See also Jones v. Hallahan, 501 S.W.2d 588, 590 (Ky. Ct. App. 1973) (“In substance, the [marital] relationship proposed by the [same-sex] appellants does not authorize the issuance of a marriage license because what they propose is not a marriage.”).
Cases predating Murphy demonstrate that the Supreme Court consistently lauded this conception of marriage as a critical social institution. See Reynolds v. United States, 98 U.S. 145, 165-66 (1878) (“Marriage, while from its very nature a sacred obligation, is nevertheless, in most civilized nations, a civil contract, and usually regulated by law. Upon it society may be said to be built, and out of its fruits spring social relations and social obligations and duties.”).
Subsequent to Murphy, the Supreme Court has continued to view the biological link of parents to children as deserving of special recognition and protection. See Michael H. v. Gerald D., 491 U.S. 110, 120 n.1 (1989) (indicating that where, inter alia, a “husband and wife” are “cohabiting,” there is a presumption that they are in a “harmonious and apparently exclusive marital relationship”); Griswold v. Connecticut, 381 U.S. 479, 482 (1965) (noting the special “intimate relation of husband and wife”); see also Lawrence v. Texas, 539 U.S. 558, 567 (2003) (“[I]t would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse.”). And marriage has been noted to carry special legal entitlements for those men and women who enter into it. See, e.g., Griswold, 381 U.S at 495 (noting it is hard to conceive of what “is more private

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or more intimate than a husband and wife’s marital relations” and “the rights to marital privacy and to marry and raise a family are of similar order and magnitude as the fundamental rights specifically protected” in the Constitution) (Goldberg, J., concurring); Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (determining right to “marry, establish a home and bring up children” is a liberty right under the Fourteenth Amendment).10
The Supreme Court also has taken care to preserve and distinguish the rights of the natural—that is, biological—family over “families” other than the biological. See Lehr v. Robertson, 463 U.S 248, 256-57 (1983) (“The institution of marriage has played a critical role both in defining the legal entitlements of family members and in developing the decentralized structure of our democratic society. In recognition of that role . . . state laws almost universally express an appropriate preference for the formal fami-
10 See also Caban v. Mohammed, 441 U.S. 380, 397 (1979) (“Even if it be assumed that each married parent after divorce has some substantive due process right to maintain his or her parental relationship . . . , it by no means follows that each unwed parent has any such right.”) (internal citations omitted) (Stewart, J., dissenting); Poe v. Ullman, 367 U.S. 497, 553 (1961) (recognizing that “the intimacy of husband and wife is necessarily an essential and accepted feature of the institution of marriage, an institution which the State not only must allow, but which always and in every age it has fostered and protected,” and noting also that the “State” may “exert its power . . . to say who may marry”) (Harlan, J., dissenting).

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ly.”) (footnotes omitted). 11 It has noted that “the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation’s history and tradition.” Moore v. City of E. Cleveland, Ohio, 431 U.S. 494, 503 (1977) (Powell, J., plurality opinion). The Court has indicated repeatedly that “history and tradition” are the “source for ‘supplying . . . content to th[e] Constitutional concept’!” that biological family units are afforded additional protections under our nation’s laws. Id. at 540 (citing Poe v. Ulman, 367 U.S. 497, 542
11 See also Santosky v. Kramer, 455 U.S. 745, 753 (1982) (noting the “absence of dispute” that “freedom of personal choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment,” and noting that “[e]ven when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life”); Trimble v. Gordon, 430 U.S. 762, 769 (1977) (describing the “family unit” as “perhaps the most fundamental social institution of our society”); Smith v. Org. of Foster Families for Equal. & Reform, 431 U.S. 816, 823, 843-45 (1977) (noting New York State’s support of laudable policy that “natural parents” provide the “positive, nurturing family relationships” and “normal family life in a permanent home” that offers the “best opportunity for children to develop and thrive” and noting the “usual understanding of ‘family’ implies biological relationships”) (internal citations omitted); Stanley v. Illinois, 405 U.S. 645, 651 (1972) (“The rights to conceive and to raise one’s children have been deemed essential, basic civil rights of man, and rights far more precious . . . than property rights.”) (internal citations and quotations omitted); Prince v. Massachusetts, 321 U.S. 158, 166 (1944) (“It is cardinal with us that the custody, care and nurture of the child reside first in the parents.”).

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(1961) (Harlan, J., dissenting)). Thus, it is and always has been the “!!‘traditions and (collective) conscience of our people,’!” not the “personal and private notions” of judges, that determine societal rights, including what marriage is as an institution and who is entitled to participate in it. Griswold, 381 U.S. at 493 (citing Snyder v. Commonwealth of Mass., 291 U.S. 97, 105 (1934)) (Goldberg, J., concurring).
In light of these decisions relying on the traditional understanding of marriage as only between one man and one woman, I join Justice Black in the sentiment that “[o]ne of the most effective ways of diluting or expanding a constitutionally guaranteed right is to substitute for the crucial word or words of a constitutional guarantee another word or words, more or less flexible and more or less restricted in meaning.” Griswold, 381 U.S. at 509 (Black, J., dissenting).
Marriage today, according to the federal government, means what it has always meant—a holy union, essential to the survival of the species, between a man and a woman, the principal purpose of which is to encourage responsible child rearing. Murphy set forth this understanding, Baker v. Nelson reaffirmed it, and no Supreme Court case since Murphy gives me reason to doubt that definition should not still stand.
Having found the interest in maintaining uniformity (including in the form of the 1996 status quo) legitimate, the means employed to advance this goal appear appropriate. As noted above, BLAG argues that DOMA “ensures that similarly-situated couples [i.e., married same-sex couples and all unmarried couples]

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will have the same federal benefits [i.e., none] regardless of which state they happen to live in, and avoids a confusing situation in which same-sex couples would lose (or gain) federal marital status simply by moving between states with different policies on recognition of same-sex marriages.” (BLAG Br. at 39-40 (emphasis added).) The relevant discrimination, however, to be justified by BLAG is DOMA’s differential treatment of married couples based on the sex of the persons constituting the couple. Married same-sex couples are similarly-situated to married opposite-sex couples with respect to the relevant characteristic at issue: marital status.
Windsor claims that the line DOMA draws fails rational basis review because the purported justifications for the discrimination “make no sense” and “are impossible to credit” in light of how the groups at issue are similarly situated. However, the regulation of federal programs is emphatically the province of Congress. Having not previously defined the scope of federal programs the way DOMA does should not forever bind Congress’s hands from doing so, or make Congressional action nonsensical, especially when viewed in light of the clear and unaltered judicial characterization of the nation’s historical understanding of marriage.
Windsor contends that DOMA creates complexity and establishes two tiers of married couples in states that permit same-sex marriage. But the question of uniformity of marriage at the state level is not DOMA’s concern. While the tension between state

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and federal policies in this area are real, they are no greater than those that have existed among the states—tensions which Windsor acknowledges reflect the essence of, and have endured under, our federal system.
I conclude, therefore, that it was rational for Congress to prefer uniform substantive eligibility criteria for federal marital benefits for same-sex couples over “uniform” deference to varying state criteria. Such a goal may be an exception to Congress’s general deference to the states in the area of marriage (even in the face of contentious state-level variation) but this in no way makes the legislative classification employed in pursuit of uniformity irrational in light of the tremendous deference we afford acts of Congress under rational basis review. See Heller, 509 U.S. at 321 (“[C]ourts are compelled under rational-basis review to accept a legislature’s generalizations even when there is an imperfect fit between means and ends.”).
When, as here, an issue involves policy choices, the Supreme Court has cautioned that “the appropriate forum for their resolution in a democracy is the legislature.” Maher v. Roe, 432 U.S. 464, 479 (1977). DOMA rationally serves the legitimate government interest in maintaining the status quo of the definition of marriage pending evolution of the issue in the states.
* * *
Because the recognition of the biological connection of marriage to childrearing and the pursuit of uni-

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formity (including in the form of preserving the status quo) are sufficient to support DOMA under rational basis review, I choose not to discuss the other asserted rationales. Beach Commc’ns, 508 U.S. at 317. Nevertheless, I next address whether sexual orientation classifications should, as a matter of first impression in this Circuit, be subject to heightened scrutiny in an equal protection analysis.
VI. Appropriate Level of Review for Sexual Orientation Discrimination
The Supreme Court has reserved heightened scrutiny for a small number of subject classifications— principally race, alienage, nationality, sex, and illegitimacy. Heightened scrutiny attaches in recognition that these traits have been used to impose, and are therefore closely associated with, social inequality. Therefore, government conduct that employs these classifications is suspect and must have more than a legitimate or merely permissible justification.
The question of the appropriate level of scrutiny for laws that discriminate in respect of the definition of marriage on the basis of sexual orientation is an issue of first impression in this Circuit. See Able v. United States, 155 F.3d 628, 632 (2d Cir. 1998) (declining to consider, in military context where judicial deference is “at its apogee,” the question whether sexual orientation discrimination would trigger heightened scrutiny because challengers did not argue for “any more onerous standard than the rational basis test” and therefore “the sole question before us is whether the Act survives rational basis review”).

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“[W]here individuals in the group affected by a law have distinguishing characteristics relevant to interests the State has the authority to implement, the courts have been very reluctant, as they should be in our federal system and with our respect for the separation of powers, to closely scrutinize legislative choices as to whether, how, and to what extent those interests should be pursued.” City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 441-42 (1985). The Supreme Court has repeatedly rejected arguments by litigants and rulings by lower courts that would grant heightened review to legislative distinctions based on mental handicap, id. at 442-47, kinship, Lyng v. Castillo, 477 U.S. 635, 638 (1986), age, Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 314 (1976), and poverty, San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 29 (1973).
The Supreme Court, despite having the opportunity to apply heightened review, invalidated the provision of the Colorado Constitution challenged in Romer under rational basis review. See 517 U.S. 620 (1996). That Romer was decided under the rational basis standard without a need to employ a more exacting level of review does not mean that the question of the appropriate tier of equal protection scrutiny was not before the Court. Indeed, although the Romer plaintiffs “elected not to appeal” the lower court’s determination that sexual orientation does not constitute a “suspect” or “quasi-suspect” classification, the Supreme Court “evidently agree[d] that ‘rational basis’ . . . is the governing standard.” Romer, 517 U.S.

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at 641 n.1 (Scalia, J., dissenting).
Until the majority’s opinion, DOMA had never been held by the Supreme Court or any Circuit Court to involve a suspect or quasi-suspect classification. Indeed, in light of the Supreme Court’s reluctance to apply heightened scrutiny to new categories of discrimination, and in consideration of the fact that it declined to do so in Romer, eleven other circuits have also not taken this step. See Massachusetts v. HHS, 682 F.3d at 9; Davis v. Prison Health Servs., 679 F.3d 433, 438 (6th Cir. 2012); Perry v. Brown, 671 F.3d 1052, 1082 (9th Cir. 2012); Cook v. Gates, 528 F.3d 42, 61-62 (1st Cir. 2008); Price-Cornelison v. Brooks, 524 F.3d 1103, 1113 (10th Cir. 2008); Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 867 (8th Cir. 2006); Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004); Lofton v. Sec’y of Dep’t of Children & Family Servs., 358 F.3d 804, 818 (11th Cir. 2004); Thomasson v. Perry, 80 F.3d 915, 927-28 (4th Cir. 1996); High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563, 573-74 (9th Cir. 1990); Ben-Shalom v. Marsh, 881 F.2d 454, 464 (7th Cir. 1989); Woodward v. United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989); Padula v. Webster, 822 F.2d 97, 103 (D.C. Cir. 1987); Nat’l Gay Task Force v. Bd. of Educ. of City of Okla. City, 729 F.2d 1270, 1273 (10th Cir. 1984), aff!’d by an equally divided court, 470 U.S. 903 (1985) (per curiam). In Massachusetts v. HHS, the First Circuit rejected the application of strict and intermediate scrutiny, recognized that DOMA satisfies rational basis review, and yet went on to create a novel “plus” level of scrutiny

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applicable to DOMA, in contravention of the Supreme Court’s holding in Baker. Such judicial impositions of new levels of review deprive the American people of further consideration of DOMA through their democratically elected representatives.
Significantly, numerous Circuit Courts of Appeals decisions declining to extend heightened scrutiny to sexual orientation discrimination post-date both Romer v. Evans and Lawrence v. Texas. Windsor argues that the determinations made regarding the appropriate level of scrutiny in decisions such as Cook v. Gates, 528 F.3d 42, 61 (1st Cir. 2008) (rational-basis review applies, and “Lawrence does not alter this conclusion”) and Witt v. Dep’t of Air Force, 527 F.3d 806, 821 (9th Cir. 2008) (Circuit precedent requiring rational-basis review “was not disturbed by Lawrence, which declined to address equal protection”) are distinguishable because the cases arose in a military context where judicial deference is “at its apogee.” See Able, 155 F.3d at 632. But as the voluminous authority cited above makes clear, see Section IV, supra, whatever additional deference courts afford Congressional action in the military context, rational basis review is, even in the civilian context, highly deferential to the legislature, not a mechanism for judges to second guess properly enacted legislative judgments, and the “paradigm of restraint.” See Beach Commc’ns, 508 U.S. at 314. See also Perry, 671 F.3d at 1080 n.13 (relying, in the civilian context, on rulings that declined to apply heightened scrutiny to sexual orientation classifications in the military context).

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Indeed, the Department of Justice so acknowledged last year—until it changed its constitutional position following the President’s announcement of a change in policy.
Therefore, I would join these eleven circuits, driven not only by a reluctance to do that which the Supreme Court itself has not undertaken when given the chance, but also out of routine respect for extant precedent. Subjecting the federal definition of marriage to heightened scrutiny would defy or, at least, call into question the continued validity of Baker, which we are not empowered to do. Baker involved a law that prohibited same-sex marriage, and thus discriminated on the basis of sexual orientation. Holding that sexual orientation merits heightened scrutiny would be substantively inconsistent with Baker since (1) any legislative action faces a high likelihood of invalidation under heightened scrutiny, and (2) it would be curious to apply heightened scrutiny to a form of discrimination that does not raise a substantial federal question of constitutional law. See Massachusetts v. HHS, 682 F.3d at 9 (“[T]o create such a new suspect classification for same-sex relationships would have far-reaching implications—in particular, by implying an overruling of Baker, which we are neither empowered to do nor willing to predict.”). Any such development must come from the elected representatives of the American people.12
12 Indeed, one elected representative—the President—has al-

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Whatever the merits of doing so in a context other than the marital union, I conclude that, in respect of the unique institution of marriage it would be imprudent to announce a new rule under which sexual orientation is subject to heightened scrutiny.
CONCLUSION
For the foregoing reasons, I would hold that per
ready taken steps to mitigate the harms visited upon same-sex couples by DOMA. The President has issued a memorandum requiring all executive departments and agencies to take steps, consistent with existing law, to extend benefits to the same-sex domestic partners of federal employees, and where applicable, to the children of same-sex domestic partners of federal employees. See Presidential Memorandum, Extension of Benefits to Same-Sex Domestic Partners of Federal Employees (June 20, 2010). The Office of Personnel Management (“OPM”) was directed to clarify that for purposes of employee assistance programs, same-sex domestic partners and their children qualify as “family members.” In addition, pursuant to a Presidential Memorandum Regarding Federal Benefits and Non-discrimination (June 17, 2009), OPM issued regulations expanding the definition of “qualified relatives” to include same-sex domestic partners of eligible federal employees in the federal long-term care insurance program. See 5 CFR 875.213 (June 1, 2010). In Congress, efforts provide various types of federal benefits for same-sex domestic partners—such as health insurance, life insurance, pensions, and other employment-related benefits—are routinely introduced, if unsuccessful. See, e.g., S. 2521, 110th Cong. (2007); H.R. 4838, 110th Cong. (2007) (bills died in committee); S. 1102, 111th Cong. (2009); H.R. 2517, 111th Cong. (2009) (no action taken on either version after being reported out of committees); S. 1910, 112th Cong. (2011) (reported out of committee); H.R. 3485, 112th Cong. (2011) (remains in committee).

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Baker, the legislative distinction drawn by DOMA satisfies rational basis review and is therefore constitutional.
Whether connections between marriage, procreation, and biological offspring recognized by DOMA and the uniformity it imposes are to continue is not for the courts to decide, but rather an issue for the American people and their elected representatives to settle through the democratic process. Courts should not intervene where there is a robust political debate because doing so poisons the political well, imposing a destructive anti-majoritarian constitutional ruling on a vigorous debate. Courts should not entertain claims like those advanced here, as we can intervene in this robust debate only to cut it short.
I respectfully dissent from the majority opinion to the extent it holds otherwise.

 
 NOS. 12-63 & 12-307

In the Supreme Court of the United States
________________ EDITH SCHLAIN WINDSOR,
Petitioner, v.

THE UNITED STATES OF AMERICA

and

BIPARTISAN LEGAL ADVISORY GROUP OF THE

UNITED STATES HOUSE OF REPRESENTATIVES,

________________

Respondents;

THE UNITED STATES OF AMERICA, Petitioner,
v.

EDITH SCHLAIN WINDSOR and

BIPARTISAN LEGAL ADVISORY GROUP OF THE

UNITED STATES HOUSE OF REPRESENTATIVES, Respondents.
________________________
On Petitions for a Writ of Certiorari Before Judgment to the United States Court of Appeals
for_t_h_e__S_e_c_o_n__d_C__ir_c_uit

SUPPLEMENTAL BRIEF FOR RESPONDENT

BIPARTISAN LEGAL ADVISORY GROUP OF THE

U.S. HOUSE OF REPRESENTATIVES

__________________________

KERRY B. KIRCHER

PAUL D. CLEMENT

General Counsel

Counsel of Record

WILLIAM PITTARD

H. CHRISTOPHER BARTOLOMUCCI

Deputy General Counsel NICHOLAS J. NELSON

OFFICE OF GENERAL COUNSEL MICHAEL H. MCGINLEY

U.S. HOUSE OF

BANCROFT PLLC

REPRESENTATIVES

1919 M Street, N.W., Suite 470

219 Cannon House Office Bldg. Washington, DC 20036

Washington, DC 20515 (202) 234-0090

(202) 225-9700

pclement@bancroftpllc.com

Counsel for Respondents

(Counsel continued on inside cover)

CHRISTINE DAVENPORT Senior Assistant Counsel
TODD B. TATELMAN MARY BETH WALKER ELENI M. ROUMEL
Assistant Counsels OFFICE OF GENERAL COUNSEL U.S. HOUSE OF REPRESENTATIVES 219 Cannon House Office Bldg. Washington, DC 20515 (202) 225-9700

TABLE OF CONTENTS TABLE OF AUTHORITIES ...................................... ii SUPPLEMENTAL BRIEF......................................... 1
The Second Circuit’s Decision ............................ 2 Standing ........................................................2 The Merits .....................................................3 Judge Straub’s Dissent .................................4
ARGUMENT .............................................................. 5 I. The Second Circuit’s Decision Confirms
the Need for This Court to Review DOMA’s Constitutionality .................................. 5 II. The Second Circuit’s Decision Underscores the Difficulties of Windsor as a Vehicle for this Court’s Review................... 6 CONCLUSION ......................................................... 12

ii
TABLE OF AUTHORITIES
Cases
Arbaugh v. Y&H Corp., 546 U.S. 500 (2006) ............................................. 8
Baker v. Nelson, 409 U.S. 810 (1972) ............................................. 3
Brockett v. Spokane Arcades, Inc., 472 U.S. 491 (1985) ............................................. 8
California v. Rooney, 483 U.S. 307 (1987) ............................................. 9
Camreta v. Greene, 131 S. Ct. 2020 (2011) ......................................... 9
Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004) ................................................. 8
Elkins v. Moreno, 435 U.S. 647 (1978) ............................................. 8
Gen. Elec. Co. v. Gilbert, 429 U.S. 125 (1976) ..................................... 10, 11
Godfrey v. Spano, 13 N.Y.3d 358 (2009)....................................... 3, 7
Leavitt v. Jane L., 518 U.S. 137 (1996) ............................................. 8
Romer v. Evans, 517 U.S. 620 (1996) ............................................. 5
Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748 (2005) ............................................. 8

SUPPLEMENTAL BRIEF
The Bipartisan Legal Advisory Group of the United States House of Representatives (“the House”) submits this Supplemental Brief regarding the Second Circuit’s divided decision in Windsor v. United States, Nos. 12-2335 & 12-2435, 2012 WL 4937310 (2d Cir. Oct. 18, 2012), and the Supplemental Brief for the United States in No. 12307.1
While this case was pending in the Second Circuit, Ms. Windsor and the United States filed Petitions for Certiorari Before Judgment in Nos. 12-63 and 12307, respectively. The House opposed both Petitions, explaining why Windsor was a particularly problematic vehicle for reviewing the constitutionality of Section 3 of the Defense of Marriage Act (“DOMA”). The Second Circuit’s decision does not change these vehicle problems.
Although the United States previously recognized that Windsor was the worst of the potential vehicles for this Court’s review of DOMA, see Pet. in No. 12307 at 13, it now claims that the Second Circuit’s decision “materially strengthens this case as a vehicle.” U.S. Supp. Br. 7. The United States was correct the first time. Indeed, the Second Circuit’s
1 The Bipartisan Legal Advisory Group is comprised of the Honorable John A. Boehner, Speaker of the House, the Honorable Eric Cantor, Majority Leader, the Honorable Kevin McCarthy, Majority Whip, the Honorable Nancy Pelosi, Democratic Leader, and the Honorable Steny H. Hoyer, Democratic Whip. The Democratic Leader and Democratic Whip decline to support the Group’s position on the merits of DOMA Section 3’s constitutionality.

2
decision only underscores that in Windsor, alone among all possible vehicles for review, the plaintiff’s standing depends critically on a state-law issue. It also exacerbates the appellate-standing problems with both Petitions and introduces a procedural wrinkle—the need to convert a pre-judgment Rule 11 petition into a post-judgment petition, something this Court has not done since 1976, and even then in quite different circumstances.
There is no need for such machinations when the same constitutional issue is cleanly presented in an after-judgment petition filed by the party with clear appellate standing, i.e., the House’s Petition in No. 12-13. If this Court is inclined to bypass that decidedly superior vehicle, then the House respectfully suggests that Golinski, not Windsor, provides the better vehicle. Golinski, along with Gill, is the only case with no question concerning the plaintiff’s standing that could distract the Court from the important question of DOMA’s constitutionality.
The Second Circuit’s Decision
Standing
The Second Circuit recognized that Ms. Windsor’s standing turned on an issue of New York law. It acknowledged that, “[a]t the time of Spyer’s death in 2009, New York did not yet license same-sex marriage itself” and therefore “decisive for standing in this case” is “whether in 2009 New York recognized same-sex marriages entered into in other jurisdictions.” 2d Cir. Slip. Op. (“Op.”) 12–13 (emphasis added). The Second Circuit denied the House’s request to certify this sensitive question of

3
New York law to the New York Court of Appeals based largely on its observation that “the Court of Appeals has signaled its disinclination to decide this very question” in Godfrey v. Spano, 13 N.Y.3d 358 (2009). Op. 13. Instead, the panel predicted that “Windsor’s marriage would have been recognized under New York law at the time of Spyer’s death.” Id. at 15. It based that prediction on three New York lower-court rulings, two of which were available to the Godfrey court. Op. 14–15.
The Merits
Turning to the merits, the panel majority recognized that this Court’s decision in Baker v. Nelson, 409 U.S. 810 (1972), “held that the use of the traditional definition of marriage for a state’s own regulation of marriage status did not violate equal protection.” Op. 10. Yet it concluded that “Baker has no bearing on this case,” because DOMA is a federal law. Op. 20. It also suggested that Baker is no longer binding precedent. Op. 17–19.
The panel majority explained that “a party urging the absence of any rational basis takes up a heavy load” and “[t]hat would seem to be true in this case— the law was passed by overwhelming bipartisan majorities in both houses of Congress” and “the definition of marriage it affirms has been longsupported and encouraged.” Op. 21–22. It did not dispute Judge Straub’s conclusion that DOMA is rational. Op. 23 (“We therefore decline to join issue with the dissent, which explains why Section 3 of DOMA may withstand rational basis review.”). It also declined to apply “rational basis plus” like “the district court in this case and the First Circuit” because this Court “has not expressly sanctioned

4
such modulation in the level of rational basis review.” Op. 22.
The panel majority ultimately determined—in express conflict with eleven other Circuits—that intermediate scrutiny applies to sexual-orientation classifications. It found that the factors this Court has looked to in applying heightened scrutiny justified treating sexual orientation as a “quasisuspect” classification. Finally, the panel majority concluded that Section 3 of DOMA could not survive heightened scrutiny.
Judge Straub’s Dissent
Judge Straub “dissent[ed] from the majority’s holding that DOMA is unconstitutional under the Fifth Amendment’s equal protection guarantee.” Dissenting Op. (“Dissent”) 1.
Judge Straub explained that Baker v. Nelson is both binding and controlling. Dissent 8–13. “Since Baker holds that states may use the traditional definition of marriage for state purposes without violating equal protection, it necessarily follows that Congress may define marriage the same way for federal purposes without violating equal protection.” Dissent 12.
Judge Straub concluded that, even apart from Baker, DOMA satisfies rational basis review. Dissent 17–35; id. at 19 (“DOMA advances the governmental interest in connecting marriage to biological procreation”), 35 (“DOMA rationally serves the legitimate government interest in maintaining the status quo of the definition of marriage pending evolution of the issue in the states.”).

5
Judge Straub also rejected the majority’s conclusion that DOMA triggers heightened scrutiny. Dissent 35–40. He pointed out that this Court in Romer v. Evans, 517 U.S. 620 (1996), and eleven federal circuit courts, have declined to apply heightened scrutiny to sexual-orientation classifications. Dissent 36–37. He warned that heightened scrutiny and “[t]he majority’s holding that DOMA’s definition of marriage as between a man and a woman is unconstitutional will doubtless be used to invalidate the laws of th[e] forty-one states” that use that definition. Dissent 24 n.7. Finally, Judge Straub underscored that the definition of marriage is “an issue for the American people and their elected representatives to settle through the democratic process. Courts should not intervene where there is a robust political debate * * * as we can intervene in this robust debate only to cut it short.” Dissent 40.
ARGUMENT
I. The Second Circuit’s Decision Confirms the Need for This Court to Review DOMA’s Constitutionality.
The Second Circuit’s decision confirms beyond all doubt that this Court should review DOMA’s constitutionality, with the only disputed question being the proper vehicle (or vehicles) for this Court’s review. The Second Circuit has now joined the First Circuit in declaring DOMA unconstitutional, and has opened an express conflict with eleven other Circuits as to the proper standard for reviewing sexual-orientation classifications. Moreover, the Second Circuit disagrees with the First Circuit as to both the continuing vitality of Baker v. Nelson and

6
the First Circuit’s decision to apply “rational basis plus.” The case for this Court’s review, which was always strong, has become overwhelming.
II. The Second Circuit’s Decision Underscores the Difficulties of Windsor as a Vehicle for this Court’s Review.
The Justice Department previously recognized that, of the various potential vehicles for this Court’s review, this case—via either Ms. Windsor’s Petition in No. 12-63 or the Department’s Petition in No. 12307 (the last of all the DOMA Petitions filed)—was the most problematic. See Pet. in No. 12-307 at 13. Like the Pedersen case, Windsor features a standing issue that could distract this Court from the issue of DOMA’s constitutionality. But unlike Pedersen, the standing issue here affects the only plaintiff in the case (and thus this Court’s jurisdiction) and turns on state, rather than federal, law. The Department has now done an about-face and suggests that the Second Circuit’s decision changes everything and makes Windsor the best vehicle for this Court’s review. The Department was correct the first time, as the Second Circuit’s decision only underscores the vehicle difficulties in Windsor.
First, the Second Circuit recognized that the statelaw status of Ms. Windsor’s foreign marriage certificate, issued when New York did not recognize same-sex marriage, was “decisive for standing in this case.” Op. 12–13 (emphasis added). While the Department gives short shrift to this aspect of the Second Circuit’s decision and glibly labels this statelaw issue as one the House “characterize[s] as implicating plaintiff’s standing,” U.S. Supp. Br. 2, the Second Circuit clearly viewed this issue as

7
“decisive” for Article III jurisdiction. The District Court took the same view. Pet. in No. 12-307, Appendix 6a. Thus, there is nothing idiosyncratic about the House’s view that this state-law issue goes to the heart of Ms. Windsor’s standing and this Court’s jurisdiction. Both courts to review the question have agreed that this state-law issue determines Ms. Windsor’s standing.
To be sure, both courts have also resolved the state-law issue in favor of Ms. Windsor’s standing. But here too the Second Circuit’s decision underscores that this state-law question is not free from doubt. The Second Circuit declined to certify the question not because the answer would be obvious, but out of comity because the New York Court of Appeals had gone out of its way not to decide the issue in Godfrey v. Spano, 13 N.Y.3d 358 (2009). Recognizing that “the Court of Appeals has signaled its disinclination to decide this very question,” the Second Circuit concluded that New York’s high court would not welcome a federal-court invitation to do so. Whether or not that conclusion was correct, the fact that the New York Court of Appeals went out of its way to avoid this issue in November 2009—nine months after Ms. Spyer’s passing—makes clear that this state-law issue is hardly free from doubt.
The Justice Department nonetheless suggests that this Court may ignore this state-law issue because two lower courts resolved it in Ms. Windsor’s favor. The Department correctly notes (U.S. Supp. Br. 8 n.2) this Court’s “custom” on state-law questions to defer to the interpretation of the Court of Appeals for the Circuit in which the state is located. But that

8
“custom” cannot possibly trump this Court’s responsibility to ensure for itself that it has Article III jurisdiction and that the plaintiff has standing. See, e.g., Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006) (“[C]ourts, including this Court, have an independent obligation to determine whether subject-matter jurisdiction exists”).2 For this reason, it is not surprising that none of the cases the Department invokes for this “custom” involved a question of state law that is “decisive for standing.” Op. 13. Cf. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 16-18 (2004) (holding that respondent lacked prudential standing despite Ninth Circuit’s contrary conclusion based on construction of California family law).
At this stage, the ultimate resolution of the underlying state-law question (which seems close) and the question whether this Court is free to ignore a state-law question that is decisive to its Article III jurisdiction (which does not seem close) is not
2 Even outside the standing context, this custom of deference “is not ironclad” as this Court “surely ha[s] the authority to differ with the lower federal courts” on state-law questions, Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 500 (1985), and has done so on numerous occasions. E.g., Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 757 (2005) (declining to defer to Tenth Circuit on question of Colorado law); Leavitt v. Jane L., 518 U.S. 137, 145 (1996) (per curiam) (“Our general presumption that courts of appeals correctly decide questions of state law reflects a judgment as to the utility of reviewing them in most cases, not a belief that the courts of appeals have some natural advantage in this domain.” (internal citations omitted)); Elkins v. Moreno, 435 U.S. 647, 662 n.16 (1978) (certifying state-law question to Maryland Court of Appeals despite identical holdings of Fourth Circuit and federal district court in Maryland).

9
critical. What is critical—indeed, dispositive—is that these questions arise uniquely in this case and could only distract this Court from the important question concerning DOMA’s constitutionality. If Windsor were the only vehicle for this Court’s review, the presence of these side issues might not be fatal, but in light of the alternative vehicles, including the House’s Petition in No. 12-13, there is no reason to invite these distractions by granting either of the Windsor Petitions.
Second, the panel majority’s acceptance of Ms. Windsor’s and the Department’s arguments only exacerbates the problems with their appellate standing. As the House has previously noted, see Br. in Opp. 16–20, No. 12-15, “[a]s a matter of practice and prudence,” this Court “generally decline[s] to consider cases at the request of a prevailing party. Camreta v. Greene, 131 S. Ct. 2020, 2030 (2011) (citing cases). See also California v. Rooney, 483 U.S. 307, 310-311 (1987) (per curiam) (writ of certiorari dismissed as improvidently granted where the judgment below “was entirely in [petitioner]’s favor” and thus it was not appropriate “for the prevailing party to request us to review it”). While there is some question whether these principles are fully applicable in the certiorari-before-judgment context, there is no question that they apply squarely to petitions by parties whose arguments prevailed in the courts of appeals. At a minimum, granting either Windsor Petition would require realigning the parties to allow the House to file an opening and reply brief. But it would also force the Court to confront the question of why normal rules of

10
appellate standing are inapplicable here.3 None of that would be necessary if the Court granted the House’s Petition in No. 12-13.
Third, the intervening Second Circuit decision creates a procedural wrinkle for the Petitions in Nos. 12-63 and 12-307, both of which were filed as extraordinary Rule 11 petitions for certiorari before judgment. Accepting either Petition would require procedural machinations that this Court has not employed for over thirty-five years. By contrast, accepting the House’s Petition in No. 12-13 would allow this Court to employ the good old-fashioned process of accepting a Petition actually filed after judgment, as it does seventy or more times a Term.
The Department proposes that this Court ignore the fact that its Petition was filed long before the Second Circuit’s decision and asks this Court to “consider the present petition as one for certiorari after judgment.” U.S. Supp. Br. 7. The Department has searched the Court’s records and unearthed exactly one prior instance of such a transformation, General Electric Co. v. Gilbert, 429 U.S. 125 (1976). But that case involved a very different situation. “All of the parties to the suit joined in petitioning for a writ of certiorari.” Id. at 127 n.1. This Court treated the two petitions for certiorari as “a joint petition.” Id. at 133 n.12. But here, the House— the only party that did not prevail in the Second
3 Additionally, it would require this Court to confront the question whether the executive branch may petition when it abandons the defense of a statute and operates as only a “nominal defendant,” to borrow the Second Circuit’s phrase. Op. 11. See House Opp. 21–25, No. 12-307. Granting the House’s Petition in No. 12-13 would avoid this question as well.

11
Circuit—has not petitioned for certiorari in Windsor (either before or after judgment), and does not join either Petition. This is no small difference. In General Electric, although both General Electric and Gilbert were petitioners, they “agreed that General Electric is to be deemed the petitioner for purposes of briefing and oral argument.” Id. at 127 n.1. Here, by contrast, the only party that disagrees with the decision below and can fill the top-side role in this case—the House—has not petitioned.
But even if General Electric can be extended to this quite different context, there remains the burning question of why it would be necessary or prudent to engage in such extraordinary machinations when the House’s Petition in No. 12-13 would allow this Court to review the exact same issue in the ordinary course. Indeed, despite the Department’s apparent conclusion that Windsor is a superior vehicle to Gill for this Court’s review, the Department’s supplemental brief never advances any persuasive reason why this is so. The fact that Gill applied a form of rational basis review—the dominant view in the courts of appeal—is hardly problematic. And no matter which case this Court grants, the parties will be able to cite the analysis of the majority and dissent in Windsor. In the Department’s view, the Second Circuit’s decision alone seems to have transformed Windsor from worst to first as a vehicle for this Court’s review. That is mystifying. If the existence of a circuit court decision is the most important criterion for Supreme Court review, then that only underscores the attractiveness of Gill as a vehicle.

12
In all events, if for some reason this Court is disinclined to grant plenary review in Gill, the House respectfully suggests that the Department’s Petition in Golinski is the best of the remaining vehicles. Alone among the non-Gill DOMA petitions, Golinski presents no question concerning the plaintiff’s standing. Moreover, although Golinski, like every Petition besides the House’s in No. 12-13, presents an appellate-standing issue, it does so in the arguably distinguishable certiorari-beforejudgment context. Thus, of the remaining vehicles, Golinski provides this Court with the best opportunity to focus on the critical issue that all agree merits this Court’s review—DOMA’s constitutionality.
CONCLUSION
The Petitions in Nos. 12-63 and 12-307 should be denied. The House’s Gill Petition, No. 12-13, should be granted.

13
Respectfully submitted,
PAUL D. CLEMENT Counsel of Record
H. CHRISTOPHER BARTOLOMUCCI NICHOLAS J. NELSON MICHAEL H. MCGINLEY BANCROFT PLLC 1919 M Street, N.W., Suite 470 Washington, D.C. 20036 (202) 234-0090 pclement@bancroftpllc.com
KERRY W. KIRCHER General Counsel
WILLIAM PITTARD Deputy General Counsel
CHRISTINE DAVENPORT Senior Assistant Counsel
TODD B. TATELMAN MARY BETH WALKER ELENI M. ROUMEL
Assistant Counsels OFFICE OF GENERAL COUNSEL U.S. HOUSE OF REPRESENTATIVES 219 Cannon House Office Bldg. Washington, D.C. 20515 (202) 225-9700
Counsel for Respondent The Bipartisan Legal Advisory Group of the United States House of Representatives
November 1, 2012

 
 No. 12-307
In the Supreme Court of the United States
UNITED STATES OF AMERICA, PETITIONER v.
EDITH SCHLAIN WINDSOR, IN HER CAPACITY AS EXECUTOR OF THE ESTATE OF THEA CLARA SPYER
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
REPLY BRIEF FOR THE UNITED STATES
DONALD B. VERRILLI, JR. Solicitor General Counsel of Record Department of Justice Washington, D.C. 20530-0001 SupremeCtBriefs@usdoj.gov (202) 514-2217

TABLE OF CONTENTS

Page

A. The Second Circuit’s interpretation of New York law eliminates any concern about plaintiff’s standing ..............................................................................2
B. The United States, as a defendant against which judgment was entered, has standing to seek certiorari .............................................................................5
C. The timing of the government’s certiorari petition poses no obstacle to the Court’s review of this case.....6

TABLE OF AUTHORITIES

Cases:

Bishop v. Wood, 426 U.S. 341 (1976).......................................3
Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004) ........................................................................................4
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167 (2000) ........................................................3
General Elect. Co. v. Gilbert, 429 U.S. 125 (1976).................6
INS v. Chadha, 462 U.S. 919 (1983)....................................2, 5
Massachusetts v. Department of Health & Human Servs., 682 F.3d 1 (1st Cir. 2012), petitions for cert. pending, Nos. 12-13 (filed June 29, 2012), 12-15 (filed July 3, 2012) and 12-97 (filed July 20, 2012)..........2, 7

Constitution and statute:

U.S. Const. Amend. V ...............................................................1 Defense of Marriage Act, Pub. L. No. 104-199,
§ 3, 110 Stat. 2419 (1 U.S.C. 7) ..................................1, 2, 5, 7

(I)

In the Supreme Court of the United States
No. 12-307 UNITED STATES OF AMERICA, PETITIONER
v. EDITH SCHLAIN WINDSOR, IN HER CAPACITY AS EXECUTOR OF THE ESTATE OF THEA CLARA SPYER
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
REPLY BRIEF FOR THE UNITED STATES
Respondent Edith Windsor agrees that the Court should grant the government’s petition for a writ of certiorari in this case, and the Bipartisan Legal Advisory Group of the United States House of Representatives (BLAG) agrees that the question presented by this petition—whether Section 3 of the Defense of Marriage Act (DOMA) violates the Fifth Amendment’s guarantee of equal protection as applied to persons of the same sex who are legally married under state law—warrants this Court’s immediate review. To this point, BLAG has repeatedly objected to the petitions in this case and in Office of Personnel Management v. Golinski, No. 12-16, and Office of Personnel Management v. Pedersen, No. 12-302, on the ground (inter alia) that these cases lacked a court of appeals judgment and that BLAG’s petition for a writ of certiorari (No. 12-13) in Massachu-
(1)

2
setts v. Department of Health & Human Services, 682 F.3d 1 (1st Cir. 2012), thus presented the preferred vehicle. The Second Circuit has now issued a decision in this case, however, changing the landscape materially.
BLAG nevertheless adheres to the view that the Court should deny review in this case and grant only its petition in Massachusetts, based on three reasons: (1) the status under New York law of Ms. Windsor’s foreign marriage creates a potential “distraction[]” notwithstanding the Second Circuit’s unanimous holding that New York law recognized her same-sex marriage (Supp. Br. 9); (2) the decision below “exacerbates” problems with the government’s appellate standing notwithstanding the Second Circuit’s express rejection of that objection under INS v. Chadha, 462 U.S. 919, 930-931 (1983) (Supp. Br. 9); and (3) the Second Circuit decision introduces a “procedural wrinkle” because the government’s certiorari petition was filed before that decision was rendered (id. at 10). As explained in the government’s supplemental brief in this case, and further below, none of those asserted grounds warrants denial of the present petition. To the contrary, in light of the Second Circuit’s decision, this case now presents the optimal vehicle for this Court’s resolution of the constitutionality of Section 3 of DOMA.
A. The Second Circuit’s Interpretation Of New York Law Eliminates Any Concern About Plaintiff’s Standing
BLAG finds “mystifying” that the government, which had previously suggested that the state-law status of plaintiff’s foreign marriage was a cause for hesitation, no longer thinks so. BLAG Supp. Br. 11. But the government explained precisely why in its own supplemental brief: the Second Circuit unanimously held, consistent with the conclusion of the federal district court

3 and the “useful and unanimous” rulings of New York’s intermediate appellate courts, that New York law recognized plaintiff ’s marriage at the relevant time. Gov’t Supp. App. 5a-7a; id. at 31a (Straub, J., dissenting). And as this Court has repeatedly explained, the Court generally “accept[s] the interpretation of state law in which the District Court and the Court of Appeals have concurred,” and indeed, does so “even if an examination of the state-law issue without such guidance might have justified a different conclusion.” Bishop v. Wood, 426 U.S. 341, 346 (1976); see also Gov’t Supp. Br. 8 n.2 (collecting similar cases). The case for deference to the Second Circuit on New York law is particularly strong here, where BLAG—despite asserting without elaboration that the state-law question “seems close” (Supp. Br. 8)—has yet to come forward with a single reason why New York’s highest court would reach a different conclusion or why this Court should disturb the consistent state-law interpretation reached by every other court to have decided the issue.
BLAG nevertheless suggests that this long established principle of deference, which if applied here would indisputably eliminate BLAG’s purported concern about plaintiff’s standing, does not apply to questions of state law implicating standing. Putting aside whether the New York law marriage-recognition issue in fact implicates plaintiff’s standing rather than the merits of her tax-refund claim,1 there is no support for BLAG’s sug-
1 Before the Second Circuit’s decision, the government had presumed that the Court would have to address the threshold question whether BLAG’s objection goes to plaintiff’s standing or instead goes to the merits. See No. 12-63 Gov’t Resp. 16-17 (citing Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180 (2000)). That is no longer the case. Because BLAG concedes that

4
gestion that this Court’s longstanding practice of accepting a uniform interpretation of state law held by the court of appeals and district court is inapplicable to questions of standing. To the contrary, in Elk Grove Unified School District v. Newdow, 542 U.S. 1 (2004), every member of this Court invoked that settled practice in the context of a question of standing. See id. at 16-17; id. at 23 (Rehnquist, C.J., concurring in the judgment). To be sure, the majority ultimately concluded that the court of appeals’ interpretation of state law “sp[oke] not at all” to the relevant issue for standing purposes. Id. at 17. But there was no dispute that, if the court of appeals’ interpretation had spoken to the relevant issue, this Court’s longstanding practice of deferring to the court of appeals’ understanding of state law would have governed. And here, there is no dispute that the court of appeals’ and district court’s interpretation of state law speaks directly to the relevant question—whether New York law recognized petitioner’s marriage at the pertinent time. Consequently, there is no basis for declining to apply this Court’s customary deference on state-law questions here, where it is undisputed that the Second Circuit’s and district court’s common understanding of New York law fully resolves any conceivable standing concerns.2
plaintiff possesses standing under the Second Circuit’s interpretation of New York law (i.e., that New York recognized her marriage at the time of Thea Spyer’s death), and because there is no reason for this Court to disturb the state-law conclusion, it does not matter whether the marriage-recognition issue implicates standing.
2 BLAG also cites certain decisions outside the standing context in which the Court has not deferred to a court of appeals’ interpretation of state law. See BLAG Supp. Br. 8 n.2. That the Court on occasion might decline to defer to a court of appeals’ resolution of state law casts no doubt on the applicability of the ordinary practice where, as

5
B. The United States, As A Defendant Against Which Judgment Was Entered, Has Standing to Seek Certiorari
In light of the Second Circuit’s decision affirming the district court’s decision holding Section 3 unconstitutional, BLAG raises (Supp. Br. 9-10) the same standing objection that it makes to the government’s petition for a writ of certiorari in Massachusetts. As explained more fully in the government’s reply brief in Massachusetts, No. 12-15 (at 2-6), this Court’s precedents make clear that the United States, as a defendant against which judgment was entered by the district court and affirmed by the court of appeals, is a proper party to invoke this Court’s jurisdiction to review the judgment in this case. See Chadha, 462 U.S. at 930-931 (“When an agency of the United States is a party to a case in which the Act of Congress it administers is held unconstitutional,” it may seek review of that decision, even though “the Executive may agree with the holding that the statute in question is unconstitutional.”).
As explained in the government’s supplemental brief, the Second Circuit below, citing Chadha, supra, unanimously rejected BLAG’s contention that the government lacked standing to appeal the district court’s judgment holding that Section 3 violates equal protection. The decision below thus reinforces the government’s reliance on Chadha—which similarly arose after a court of appeals’ decision accepting the Executive Branch’s merits argument against the constitutionality of a federal law— in seeking the Court’s review in this case. Gov’t Supp Br. 9. BLAG’s appellate-standing objection continues to lack merit.
here, there is no reason—and BLAG offers none—to question the correctness of the court of appeals’ and district court’s uniform understanding.

6
C. The Timing Of The Government’s Certiorari Petition Poses No Obstacle To The Court’s Review Of This Case
The government’s supplemental brief explains why the issuance of the court of appeals’ decision after the filing of the government’s petition for a writ of certiorari does not deprive the Court of the authority to grant it. And the government points to clear precedent of the Court exercising such authority. See Gov’t Supp. Br. 910 (discussing General Elec. Co. v. Gilbert, 429 U.S. 125 (1976)). BLAG nevertheless characterizes the intervening Second Circuit decision as creating a “procedural wrinkle.” BLAG Supp. Br. 10.
That is no impediment to granting review in this case. Notably, BLAG provides no affirmative reason why this Court would lack authority to consider the government’s petition, nor does it contend that the Court is foreclosed from doing so. Rather, BLAG relies on the fact that the government cites only one prior example (General Elec., supra) of this procedural circumstance. But that is entirely unsurprising: the situation in which a party files a petition for certiorari before judgment, but the court of appeals issues a judgment before the Court has considered that petition, by nature arises exceedingly infrequently. The fact that at least one such prior instance exists, and the Court granted certiorari in that case to review the court of appeals’ decision, should eliminate any doubt about the Court’s authority to act here.
BLAG also suggests that the situation in General Electric is distinguishable because both parties jointly petitioned for certiorari in that case. BLAG Supp. Br. 10-11. But the fact that BLAG did not also petition in this case matters only if, as BLAG urges elsewhere, the government lacks appellate standing to seek this Court’s

7

review. For the reasons explained above (p. 5, supra), that objection lacks merit.

* * * * * For the foregoing reasons, the petition for a writ of certiorari in this case should be granted. Although Department of Health and Human Services v. Massachusetts, petitions for cert. pending, Nos. 12-13 (filed June 29, 2012), 12-15 (filed July 3, 2012), and 12-97 (filed July 20, 2012), is also a case in which a court of appeals has rendered a decision, this case now provides the most appropriate vehicle for this Court’s resolution of the constitutionality of Section 3 of DOMA. In particular, the court of appeals in Massachusetts was constrained by binding circuit precedent as to the applicable level of scrutiny, No. 12-15 Pet. App. 10a, whereas the court of appeals here was not so constrained, and its analysis may be beneficial to this Court’s consideration of that issue. In the event the Court grants review in this case, it should hold the petitions in Massachusetts pending final resolution on the merits. In the event the Court decides that neither case in which the court of appeals has issued a decision provides an appropriate vehicle, it should grant the government’s petition for a writ of certiorari before judgment in either Office of Personnel Management v. Golinski, No. 12-16 (filed July 3, 2012), or Office of Personnel Management v. Pedersen, No. 12302 (filed Sept. 11, 2012). Respectfully submitted.

NOVEMBER 2012

DONALD B. VERRILLI, JR. Solicitor General

 
 No.
In the Supreme Court of the United States
UNITED STATES OF AMERICA, PETITIONER v.
EDITH SCHLAIN WINDSOR
ON PETITION FOR A WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
PETITION FOR A WRIT OF CERTIORARI BEFORE JUDGMENT
DONALD B. VERRILLI, JR. Solicitor General Counsel of Record
STUART F. DELERY Acting Assistant Attorney General
SRI SRINIVASAN Deputy Solicitor General
PRATIK A. SHAH Assistant to the Solicitor General
MICHAEL JAY SINGER AUGUST E. FLENTJE HELEN L. GILBERT
Attorneys Department of Justice Washington, D.C. 20530-0001 SupremeCtBriefs@usdoj.gov (202) 514-2217

QUESTION PRESENTED
Section 3 of the Defense of Marriage Act (DOMA) defines the term “marriage” for all purposes under federal law, including the provision of federal benefits, as “only a legal union between one man and one woman as husband and wife.” 1 U.S.C. 7. It similarly defines the term “spouse” as “a person of the opposite sex who is a husband or a wife.” Ibid. The question presented is:
Whether Section 3 of DOMA violates the Fifth Amendment’s guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their State.
(I)

PARTIES TO THE PROCEEDING
Petitioner, who was a defendant in the district court and is an appellant in the court of appeals, is the United States of America.
Respondent, who was plaintiff in the district court and is an appellee in the court of appeals, is Edith Schlain Windsor.
The Bipartisan Legal Advisory Group of the United States House of Representatives intervened to present arguments in defense of the constitutionality of Section 3 of DOMA.
(II)

TABLE OF CONTENTS

Page

Opinion below . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Constitutional and statutory provisions involved . . . . . . . . . 2 Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Reasons for granting the petition . . . . . . . . . . . . . . . . . . . . . 10 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Appendix A – Order (June 6, 2012) . . . . . . . . . . . . . . . . 1a Appendix B – Judgment (June 7, 2012) . . . . . . . . . . . . 23a Appendix C – Gov’t notice of appeal
(June 14, 2012) . . . . . . . . . . . . . . . . . . 25a Appendix D – Intervenor’s notice of appeal
(June 8, 2012) . . . . . . . . . . . . . . . . . . . 27a

Appendix E – Constitutional and statutory provisions . . . . . . . . . . . . . . . . . . . . . . 30a

Cases:

TABLE OF AUTHORITIES

Baehr v. Lewin, 852 P.2d 44 (Haw. 1993) . . . . . . . . . . . . . 2 Baker v. Nelson:
409 U.S. 810 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 191 N.W.2d 185 (Minn. 1971) . . . . . . . . . . . . . . . . . . . . . 7 Camreta v. Greene, 131 S. Ct. 2020 (2011) . . . . . . . . . . . 11 Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006) . . . . . . . 7 INS v. Chadha, 462 U.S. 919 (1983) . . . . . . . . . . . . . . 11, 12 Lawrence v. Texas, 539 U.S. 558 (2003) . . . . . . . . . . . . . . . 8

(III)

IV

Cases—Continued:

Page

Massachusetts v. United States Dep’t of Health & Human Servs., 682 F.3d 1 (1st Cir. 2012), petitions for cert. pending, Nos. 12-13 (filed June 29, 2012), 12-15 (filed July 3, 2012), and 1297 (filed July 20, 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Plyler v. Doe, 457 U.S. 202 (1982) . . . . . . . . . . . . . . . . . . . . 9

Constitution and statutes:

U.S. Const.: Art. III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Amend. V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 6, 10
Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 § 2, 110 Stat. 2419 (28 U.S.C. 1738C) . . . . . . . . . . . . 2 § 3, 110 Stat. 2419 (1 U.S.C. 7) . . . . . . . . . . . . passim
26 U.S.C. 2056(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4 28 U.S.C. 530D . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 28 U.S.C. 1254 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 28 U.S.C. 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Marriage Equality Act, 2011 N.Y. Sess. Laws ch. 95
(A.8354) (McKinney) (N.Y. Dom. Rel. Law § 10-a (McKinney Supp. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Miscellaneous:

Eugene Gressman et al., Supreme Court Practice (9th ed. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
H.R. Rep. No. 664, 104th Cong., 2d Sess. (1996) . . . . . 3, 8

V

Miscellaneous—Continued:

Page

Letter from Eric H. Holder, Jr., Att’y Gen., to John A. Boehner, Speaker, House of Representatives (Feb. 23, 2011) . . . . . . . . . . . . . . . . . 4, 5
U.S. Gen. Accounting Office, Report No. GAO-04353R, Defense of Marriage Act: Update to Prior Report (2004), http://www.gao.gov/assets/100/ 92441.pdf . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

In the Supreme Court of the United States
No. UNITED STATES OF AMERICA, PETITIONER
v. EDITH SCHLAIN WINDSOR
ON PETITION FOR A WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
PETITION FOR A WRIT OF CERTIORARI BEFORE JUDGMENT
The Solicitor General, on behalf of the United States of America, respectfully petitions for a writ of certiorari before judgment to the United States Court of Appeals for the Second Circuit.
OPINION BELOW
The opinion of the district court (App., infra, 1a-22a) is reported at 833 F. Supp. 2d 394.
JURISDICTION
The judgment of the district court was entered on June 6, 2012. Notices of appeal were filed on June 8, 2012, and June 14, 2012 (App., infra, 25a-26a, 27a-29a). The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1) and 28 U.S.C. 2101(e).
(1)

2
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
Pertinent constitutional and statutory provisions are set forth in the appendix to this petition. App., infra, 30a.
STATEMENT
1. a. Congress enacted the Defense of Marriage Act (DOMA or Act) in 1996. Pub. L. No. 104-199, 110 Stat. 2419. DOMA contains two principal provisions. The first, Section 2 of the Act, provides that no State is required to give effect to any public act, record, or judicial proceeding of another State that treats a relationship between two persons of the same sex as a marriage under its laws. DOMA § 2, 110 Stat. 2419 (28 U.S.C. 1738C).
The second provision, Section 3, which is at issue in this case, defines “marriage” and “spouse” for all purposes under federal law to exclude marriages between persons of the same sex, including marriages recognized under state law. Section 3 provides:
In 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. DOMA § 3, 110 Stat. 2419 (1 U.S.C. 7). b. Congress enacted DOMA in response to the Hawaii Supreme Court’s decision in Baehr v. Lewin, 852 P.2d 44 (1993), which held that the denial of marriage

3 licenses to same-sex couples was presumptively invalid under the Hawaii Constitution. H.R. Rep. No. 664, 104th Cong., 2d Sess. 2 (1996) (1996 House Report). Although Hawaii ultimately did not permit same-sex marriage, other States later recognized such marriages under their respective laws. See Massachusetts v. United States Dep’t of Health & Human Servs., 682 F.3d 1, 6 nn.1 & 2 (1st Cir. 2012), petitions for cert. pending, Nos. 12-13 (filed June 29, 2012), 12-15 (filed July 3, 2012), and 12-97 (filed July 20, 2012).
Although Section 3 of DOMA does not purport to invalidate same-sex marriages in those States that permit them, it excludes such marriages from recognition for purposes of more than 1000 federal statutes and programs whose administration turns in part on individuals’ marital status. See U.S. Gen. Accounting Office, Report No. GAO-04-353R, Defense of Marriage Act: Update to Prior Report 1 (2004), http://www.gao.gov/assets/100/ 92441.pdf (GAO Report) (identifying 1138 federal laws that are contingent on marital status or in which marital status is a factor). Section 3 of DOMA thus denies to legally married same-sex couples many substantial benefits otherwise available to legally married opposite-sex couples under federal employment, immigration, public health and welfare, tax, and other laws. See id. at 16-18.
2. In 2007, plaintiff married Thea Spyer, her samesex partner of more than 40 years, in Canada. The couple resided in New York. When Spyer died in 2009, she left her estate for plaintiff’s benefit. App., infra, 3a; Am. Compl. ¶¶ 10, 11.
In her capacity as executor of Spyer’s estate, plaintiff paid approximately $363,000 in federal estate taxes. She thereafter filed a refund claim under 26 U.S.C. 2056(a), which provides that property that passes from

4
a decedent to a surviving spouse may generally pass free of federal estate taxes. The Internal Revenue Service (IRS) denied the refund claim on the ground that plaintiff is not a “spouse” within the meaning of DOMA Section 3 and thus not a “surviving spouse” within the meaning of Section 2056(a). App., infra, 3a-4a; Am. Compl. ¶¶ 72-78.
Plaintiff filed this suit challenging the constitutionality of DOMA Section 3 in the United States District Court for the Southern District of New York. She contended that, by treating married same-sex couples in New York differently from opposite-sex couples, Section 3, as applied by the IRS, violates the equal protection component of the Fifth Amendment. She sought declaratory and injunctive relief, as well as recovery of the $363,053 in federal estate taxes paid by Spyer’s estate. App., infra, 4a; Am. Compl. ¶¶ 82-85.
3. After plaintiff filed her complaint, the Attorney General sent a notification to Congress under 28 U.S.C. 530D that he and the President had determined that Section 3 of DOMA is unconstitutional as applied to same-sex couples who are legally married under state law. Letter from Eric H. Holder, Jr., Att’y Gen., to John A. Boehner, Speaker, House of Representatives (Feb. 23, 2011) (Attorney General Letter).1 The letter explained that, while the Department of Justice had previously defended Section 3 if binding precedent in the circuit required application of rational basis review to classifications based on sexual orientation, the President and the Department of Justice had conducted a new examination of the issue after two lawsuits (this one and
1 1:10-cv-08435 Docket entry No. 10 (S.D.N.Y. Feb. 25, 2011). Text also available at http://www.justice.gov/opa/pr/2011/February/11-ag223.html.

5 Pedersen v. Office of Personnel Management, petition for cert. before judgment pending, No. 12-231 (filed Aug. 21, 2012)) had been filed in a circuit that had yet to address the appropriate standard of review. Attorney General Letter 1-2. The Attorney General explained that, after examining factors this Court has identified as relevant to the applicable level of scrutiny, including the history of discrimination against gay and lesbian individuals and the relevance of sexual orientation to legitimate policy objectives, he and the President had concluded that Section 3 warrants application of heightened scrutiny rather than rational basis review. Id. at 2-4. The Attorney General further explained that both he and the President had concluded that Section 3 fails that standard of review and is therefore unconstitutional. Id. at 4-5.
The Attorney General’s letter reported that, notwithstanding this determination, the President had “instructed Executive agencies to continue to comply with Section 3 of DOMA, consistent with the Executive’s obligation to take care that the laws be faithfully executed, unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law’s constitutionality.” Attorney General Letter 5. The Attorney General explained that “[t]his course of action respects the actions of the prior Congress that enacted DOMA, and it recognizes the judiciary as the final arbiter of the constitutional claims raised.” Ibid. In the interim, the Attorney General instructed the Department’s lawyers to cease defense of Section 3. Id. at 5-6. Finally, the Attorney General noted that the Department’s lawyers would take appropriate steps to “provid[e] Congress a full and fair opportunity to partici-

6 pate” in litigation concerning the constitutionality of Section 3. Id. at 6.
Following the Attorney General’s announcement, respondent Bipartisan Legal Advisory Group of the United States House of Representatives (BLAG), a fivemember bipartisan leadership group, moved to intervene to present arguments in defense of the constitutionality of Section 3.2 The district court granted the motion. 6/2/11 Mem. & Order 1; see App., infra, 4a.
Both BLAG and the government moved to dismiss plaintiff ’s challenge to the constitutionality of Section 3. While BLAG presented arguments in support of Section 3’s constitutionality, the government explained that it was filing a motion to dismiss plaintiff’s constitutional claim solely for purposes of ensuring that the court had Article III jurisdiction to enter judgment for or against the federal officials tasked with enforcing Section 3. The government’s brief on the merits set forth its view that heightened scrutiny applies to Section 3 of DOMA and that, under that standard of review, Section 3 violates the equal protection guarantee of the Fifth Amendment. Gov’t Resp. to Pl. Mot. for Summ. J. and Intervenor’s Mot. to Dismiss 4-27 (Aug. 19, 2011).
4. The district court denied the motions to dismiss and granted summary judgment in favor of plaintiff, concluding that Section 3 of DOMA violates the equal protection guarantee of the Fifth Amendment. App., infra, 1a-22a.
As a preliminary matter, the district court rejected BLAG’s argument that plaintiff lacks Article III standing because she had failed to prove that New York rec-
2 Two of the group’s five members declined to support intervention. BLAG Mot. to Intervene 1 n.1 (Apr. 18, 2011).

7 ognized her marriage in 2009, the relevant tax year, and thus had failed to establish that her injuries were traceable to Section 3 of DOMA. App., infra, 6a-8a. The court acknowledged the New York Court of Appeals’ decision in Hernandez v. Robles, 855 N.E.2d 1, 6 (2006), which held that New York statutory law “clearly limit[ing] marriage to opposite-sex couples” was not invalid under the New York Constitution. See App., infra, 6a.3 The district court noted, however, that all three statewide elected officials and every state court to address the issue had concluded that principles of comity require recognition of same-sex marriages performed in other jurisdictions. Id. at 6a-7a.
The district court also rejected BLAG’s threshold argument that plaintiff’s equal protection challenge is foreclosed by this Court’s summary dismissal of the appeal in Baker v. Nelson, 409 U.S. 810 (1972), which sought review of the Minnesota Supreme Court’s decision upholding the constitutionality of a state statute interpreted to limit marriage to persons of the opposite sex, see Baker v. Nelson, 191 N.W.2d 185, 185-187 (1971). The district court explained that Section 3, unlike the statute at issue in Baker, “does not preclude or otherwise inhibit a state from authorizing same-sex marriage (or issuing marriage licenses),” but instead “defines marriage for federal purposes, with the effect of allocating federal rights and benefits.” App., infra, 9a. The court concluded that Baker therefore did not “ ‘necessarily decide[]’ the question of whether DOMA vio-
3 In 2011, New York passed legislation permitting individuals of the same sex to marry in the State. Marriage Equality Act, 2011 N.Y. Sess.
Laws ch. 95 (A.8354) (McKinney) (N.Y. Dom. Rel. Law § 10-a
(McKinney Supp. 2012)).

8
lates the Fifth Amendment’s Equal Protection Clause.” Ibid.
The district court assumed without deciding that laws that draw distinctions on the basis of sexual orientation are subject to rational basis review. App., infra, 13a. The court also expressed the view that the nature of such review “can vary by context”: while “[l]aws such as economic or tax legislation that are scrutinized under rational basis review” will “normally pass constitutional muster,” laws that “exhibit[] . . . a desire to harm a politically unpopular group” receive “a more searching form of rational basis review.” Ibid. (quoting Lawrence v. Texas, 539 U.S. 558, 579-580 (2003) (O’Connor, J., concurring)).
Without deciding whether “a more ‘searching’ form of rational basis scrutiny is required,” the district court held that Section 3 is invalid under rational basis review. App., infra, 14a.4 The court concluded that neither the legislative purposes articulated in support of Section 3 at the time of its enactment (see 1996 House Report 12) nor additional interests offered by BLAG bear a rational relationship to a legitimate governmental objective. App., infra, 15a-22a.
The district court first determined that Section 3 does not advance a federal governmental interest in “maintain[ing] the definition of marriage that was uni-
4 In its response to plaintiff’s certiorari petition in this case, BLAG contends that “the district court adopted a novel standard of constitutional review involving ‘intensified scrutiny,’ a level of scrutiny between ordinary rational-basis and intermediate scrutiny.” BLAG No. 12-63 Br. in Opp. 8-9. That is incorrect. As noted above, the district court held Section 3 invalid under rational-basis review “[r]egardless whether a more ‘searching’ form of rational basis scrutiny is required.” App., infra, 14a (emphasis added).

9 versally accepted in American law,” App., infra, 16a (brackets in original; citation omitted), whether provisionally or otherwise, because it “does not affect the state laws that govern marriage,” ibid. Nor could the court “discern a logical relationship” between Section 3 and a governmental interest in “[p]romoting the ideal family structure for raising children,” id. at 18a, since Section 3 has “no effect at all on the types of family structures in which children in this country are raised,” id. at 19a.
The district court also rejected BLAG’s argument that Congress might have enacted Section 3 “to ensure that federal benefits are distributed consistently,” without regard to differences between state marriage laws. App., infra, 19a-20a. The court reasoned that, although Section 3 is “link[ed]” to that goal, “the means used in this instance intrude upon the states’ business of regulating domestic relations” and “therefore cannot be legitimate.” Id. at 20a.
Finally, the district court concluded that the government’s interest in “conserving government resources” alone is insufficient to “ ‘justify the classification used in allocating those resources.’ ” App., infra, 21a-22a (quoting Plyler v. Doe, 457 U.S. 202, 227 (1982)).
5. Both BLAG and the government filed timely notices of appeal to the United States Court of Appeals for the Second Circuit. App., infra, 25a-26a (government notice of appeal); id. at 27a-29a (BLAG notice of appeal). The court of appeals has jurisdiction pursuant to 28 U.S.C. 1291. The appeals were docketed as Nos. 12-2335 and 12-2435 and remain pending before that court. The case is therefore “in the court[] of appeals” within the meaning of 28 U.S.C. 1254. See Eugene Gressman et al., Supreme Court Practice § 2.4, at 83-84 (9th ed. 2007).

10 6. Plaintiff filed a petition for a writ of certiorari before judgment in this case on July 16, 2012 (No. 1263), and the government and BLAG filed responses to that petition on August 31, 2012.
REASONS FOR GRANTING THE PETITION
The question of whether Section 3 of DOMA violates the Fifth Amendment’s guarantee of equal protection as applied to same-sex couples legally married under state law is presented in the government’s petition for a writ of certiorari in United States Department of Health & Human Services v. Massachusetts, No. 12-15 (filed July 3, 2012),5 and in the government’s petition for a writ of certiorari before judgment in Office of Personnel Management v. Golinski, No. 12-16 (filed July 3, 2012). For the reasons explained in those pending petitions, that question warrants this Court’s review now.
The Court should hold this petition pending its consideration and disposition of the petitions in Massachusetts and Golinski. Should the Court grant review in either of those cases, it need not grant review in this case. If the Court concludes that neither Massachusetts nor Golinski provides an appropriate vehicle for resolving the question presented, it should grant the government’s petition for a writ of certiorari before judgment in Office of Personnel Management v. Pedersen (filed concurrently with this petition). If the Court also concludes that Pedersen is not an appropriate vehicle, it should grant this petition to ensure a timely and definitive ruling on Section 3’s constitutionality.
5 Two other petitions for a writ of certiorari have been filed in the Massachusetts case, one by BLAG (No. 12-13) and a conditional crosspetition by the Commonwealth of Massachusetts (No. 12-97).

11
As noted above, the plaintiff in this case has also filed a petition for a writ of certiorari before judgment on Section 3’s constitutionality (No. 12-63, filed July 16, 2012), and the plaintiffs in Pedersen v. Office of Personnel Management, No. 12-231 (filed Aug. 21, 2012), have done so as well. As explained in the government’s response to plaintiff ’s petition in this case (at 15-19), however, her petition raises two threshold questions potentially posing obstacles to this Court’s review: (1) whether plaintiff, who obtained a district court judgment and decision entirely in her favor, has appellate standing to seek certiorari before judgment, and (2) whether New York law recognized her Canadian marriage at the time of Thea Spyer’s death. As further explained in that response (at 19-20), the government, which plainly is a proper party to invoke this Court’s jurisdiction to review the district court’s judgment in this case, has filed this petition (as well as one in Pedersen) to obviate the Court’s need to resolve the first issue if it is inclined to grant review in this case or in Pedersen.6
6 BLAG contends that plaintiff in this case potentially lacks appellate standing by referring to its argument that the government lacks standing to seek this Court’s review of the First Circuit’s judgment in Massachusetts. See BLAG No. 12-63 Br. in Opp. 12 (“What is more, as explained more fully in the House’s opposition in No. 12-15, it is not clear that [plaintiff Windsor], who prevailed in the district court, even has appellate standing to petition.”). But one critical fact materially distinguishes the government from plaintiff in this case (and from the plaintiffs in the other DOMA cases): the district court’s judgment was entered against the government, such that the government is not a “prevailing party” in the relevant sense. See Camreta v. Greene, 131 S. Ct. 2020, 2028-2029 (2011). As the Court’s decision in INS v. Chadha, 462 U.S. 919 (1983), makes clear, “[w]hen an agency of the United States is a party to a case in which the Act of Congress it administers

12
The second potential obstacle in this case is not present in Massachusetts, Golinski, or Pedersen. As the government noted in its response to plaintiff’s petition (at 16), “BLAG has identified no reason to believe that the State’s highest court would reach a conclusion different from the uniform decisions of its intermediate appellate courts” recognizing foreign same-sex marriages. And as the government further noted (ibid.), the Court may conclude that the issue in fact goes to the merits of plaintiff ’s tax-refund claim rather than to her standing. BLAG itself appears to acknowledge that possibility. See BLAG No. 12-63 Br. in Opp. 19 n.9 (suggesting that validity of plaintiff’s foreign marriage is a vehicle problem “whether or not it is critical to [her] standing”). But the Court would at least have to address whether the foreign-marriage issue implicates plaintiff’s standing before reaching the merits of Section 3’s constitutionality. For that reason, and because the district court in Pedersen (unlike the district court in this case) examined the applicability of heightened scrutiny (see Pedersen Pet. App. 27a-75a), Pedersen would be preferable to this case as a vehicle for resolving the constitutionality of Section 3 in the event the Court does not grant review in Massachusetts or Golinski.
is held unconstitutional,” it may seek this Court’s review of that decision, even though “the Executive may agree with the holding that the statute in question is unconstitutional.” Id. at 930-931. Although BLAG points out in its response to the government’s petition in Massachusetts that Section 3 (unlike the statute at issue in Chadha) is not administered by a single agency, that is a distinction without a difference. Indeed, BLAG makes no effort to explain why that distinction could matter. See BLAG No. 12-15 Br. in Opp. 18-19.

13
CONCLUSION
This petition for a writ of certiorari before judgment should be held pending the Court’s consideration and disposition of the petitions in United States Department of Health and Human Services v. Massachusetts, Nos. 12-13 (filed June 29, 2012), 12-15 (filed July 3, 2012), and 12-97 (filed July 20, 2012), and Office of Personnel Management v. Golinski, No. 12-16 (filed July 3, 2012). If the Court determines that neither Massachusetts nor Golinski provides an appropriate opportunity to decide the question presented, the Court should grant the government’s petition for a writ of certiorari before judgment in Office of Personnel Management v. Pedersen (filed concurrently with this petition). If the Court determines that Pedersen is not an appropriate vehicle, the Court should grant this petition.
Respectfully submitted.
DONALD B. VERRILLI, JR. Solicitor General
STUART F. DELERY Acting Assistant Attorney General
SRI SRINIVASAN Deputy Solicitor General
PRATIK A. SHAH Assistant to the Solicitor General
MICHAEL JAY SINGER AUGUST E. FLENTJE HELEN L. GILBERT
Attorneys
SEPTEMBER 2012

APPENDIX A UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
10 Civ. 8435 (BSJ) EDITH SCHLAIN WINDSOR, PLAINTIFF
v. THE UNITED STATES OF AMERICA, DEFENDANT
[Filed: June 6, 2012]
ORDER
BARBARA S. JONES, United States District Judge This case arises from Plaintiff ’s constitutional chal-
lenge to section 3 of the Defense of Marriage Act (“DOMA”), the operation of which required Plaintiff to pay federal estate tax on her same-sex spouse’s estate, a tax from which similarly situated heterosexual couples are exempt. Plaintiff claims that section 3 deprives her of the equal protection of the laws, as guaranteed by the Fifth Amendment to the United States Constitution. For the following reasons, Defendant-Intervenor’s motion to dismiss is DENIED and Plaintiff ’s motion for summary judgment is GRANTED.
(1a)

2a
I. BACKGROUND A. DOMA
DOMA was enacted and signed into law in 1996. The challenged provision, section 3, defines the terms “marriage” and “spouse” under federal law. It provides:
In 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, the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife. 1 U.S.C. § 7. In large part, DOMA was a reaction to the possibility that states would begin to recognize legally same-sex marriages. Specifically, Congress was spurred to action by a 1993 decision by the Hawaii Supreme Court, which suggested that same-sex couples might be entitled to marry. Baehr v. Lewin, 852 P. 2d 44 (Haw. 1993). The House Judiciary Committee’s Report on DOMA (“House Report”) discussed Baehr at length, describing it as a “legal assault . . . against traditional heterosexual marriage.” H.R. Rep. No. 104-664, at 3 (1996). The Report noted that, if homosexuals were permitted to marry, “that development could have profound practical implications for federal law,” including making homosexual couples “eligible for a whole range of federal rights and benefits.” Id. at 10. A federal definition of marriage was seen as necessary because, the Committee reasoned, never before had the words “marriage” (which, at the time, appeared in 800 sections of federal statutes and regulations) or “spouse” (appearing more than 3,100

3a
times) meant anything other than a union between a man and a woman—an implicit assumption upon which Congress had relied in enacting these statutes and regulations. Id. at 10.
In addition to this notion of “mak[ing] explicit what has always been implicit,” id. at 10, the House Report justified DOMA as advancing government interests in: “(1) defending and nurturing the institution of traditional, heterosexual marriage; (2) defending traditional notions of morality; (3) protecting state sovereignty and democratic self-governance;1 and (4) preserving scarce government resources.” Id. at 12.
B. The Parties
In 1963, Plaintiff in this action, Edie Windsor, met her late-spouse, Thea Spyer, in New York City. Shortly thereafter, Windsor and Spyer entered into a committed relationship and lived together in New York. In 1993, Windsor and Spyer registered as domestic partners in New York City, as soon as that option became available. In 2007, as Spyer’s health began to deteriorate due to her multiple sclerosis and heart condition, Windsor and Speyer decided to get married in another jurisdiction that permitted gays and lesbians to marry. They were married in Canada that year.
Spyer died in February 2009. According to her last will and testament, Spyer’s estate passed for Windsor’s benefit. Because of the operation of DOMA, Windsor did not qualify for the unlimited marital deduction, 26
1 This interest was not addressed to section 3, therefore the Court does not consider it. See Massachusetts v. U.S. Dep’t of Health & Human Servs., et al., Nos. 10-2207 & 10-2214, slip op. at 25 (1st Cir. May 31, 2012).

4a
U.S.C. § 2056(a), and was required to pay $363,053 in federal estate tax on Spyer’s estate, which Windsor paid in her capacity as executor of the estate.
On November 9, 2010, Windsor commenced this suit, seeking a refund of the federal estate tax levied on Spyer’s estate and a declaration that section 3 of DOMA violates the Equal Protection Clause of the Fifth Amendment.
In February 2011, Attorney General Holder announced that the Department of Justice would no longer defend DOMA’s constitutionality because the Attorney General and the President believed that a heightened standard of scrutiny should apply to classifications based on sexual orientation, and that section 3 is unconstitutional under that standard. Letter from Eric H. Holder, Jr., Attorney Gen., to John A. Boehner, Speaker, U.S. House of Rep., at 5 (Feb. 23, 2011). Given the Executive Branch’s decision not to enforce DOMA, the Bipartisan Legal Advisory Group of the U.S. House of Representatives (“BLAG”) moved to intervene to defend the constitutionality of the statute. BLAG’s motion was granted on June 2, 2011.
On June 24, 2011, Windsor moved for summary judgment, arguing that DOMA is subject to strict constitutional scrutiny because homosexuals are a suspect class. She contends that DOMA fails under that standard of constitutional review because the government cannot establish that DOMA is narrowly tailored to serve a compelling or legitimate government interest. In the alternative, she argues that DOMA has no rational basis.
On August 1, 2011, BLAG moved to dismiss Plaintiff ’s complaint. It argues that the weight of the prece-

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dent compels the Court to review DOMA only for a rational basis and, under that standard, there are ample reasons that justify the legislation. Because the motion to dismiss turns on the same legal question as the motion for summary judgment, the Court will address the two motions simultaneously.
II. DISCUSSION
A. Legal Standard Rule 56 of the Federal Rules of Civil Procedure pro-
vides that a court shall grant a motion for summary judgment “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Bessemer Trust Co., N.A. v. Branin, 618 F.3d 76, 86 (2d Cir. 2010) (quoting Fed. R. Civ. P. 56 (c)). “The party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists and that the undisputed facts establish her right to judgment as a matter of law.” Rodriguez v. City of New York, 72 F.3d 1051, 1060-61 (2d Cir. 1995).
To survive a motion to dismiss pursuant to Rule 12(b)(6), “the operative standard requires the plaintiff [to] provide the grounds upon which [her] claim rests through factual allegations sufficient to raise a right to relief above the speculative level.” Goldstein v. Pataki, 516 F.3d 50, 56 (2d Cir. 2008) (citation and internal quotation marks omitted). That is, a plaintiff must assert “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see Ashcroft v. Igbal, 129 S. Ct. 1937, 1949 (2009).

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B. Windsor’s Standing to Pursue this Suit
As a threshold matter, the Court addresses whether Windsor has standing to pursue this action. “[T]he irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an ‘injury in fact’—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not ‘conjectural’ or ‘hypothetical.’ ” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (citations and internal quotation marks omitted). Second, the plaintiff must present a “causal connection between the injury and the conduct complained of—the injury has to be fairly . . . traceable to the challenged action of the defendant, and not . . . the result of the independent action of some third party not before the court.” Id. (internal quotation marks and alterations omitted). Finally, “it must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.’ ” Id. at 561.
There is no question that Windsor meets the first and third requirements. BLAG seeks to undermine the second factor by arguing that Windsor has not proved that her marriage was recognized under New York law in 2009, the relevant tax year. In support of this argument, it points to a 2006 case where the New York Court of Appeals held that the “New York Constitution does not compel recognition of marriages between members of the same sex.” Hernandez v. Robles, 855 N.E.2d 1, 5 (N.Y. 2006).
While the Court acknowledges the Court of Appeals’ decision in Hernandez, in light of subsequent state executive action and case law, the Court ultimately finds BLAG’s argument unpersuasive. In 2009, all three

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statewide elected executive officials—the Governor, the Attorney General, and the Comptroller—had endorsed the recognition of Windsor’s marriage. See Godfrey v. Spano, 13 N.Y.3d 358, 368 n.3 (N.Y. 2009) (describing 2004 informal opinion letters of the Attorney General and the State Comptroller which respectively concluded that “New York law presumptively requires that parties to such [same sex] unions must be treated as spouses for purposes of New York law” and “[t]he Retirement System will recognize a same-sex Canadian marriage in the same manner as an opposite-sex New York marriage, under the principle of comity”); Dickerson v. Thompson, 73 A.D.3d 52, 54-55 (N.Y. App. Div. 2010) (citing a 2008 directive by the Governor to recognize same-sex marriages from other jurisdictions).
In addition, every New York State appellate court to have addressed the issue in the years following Hernandez has upheld the recognition of same-sex marriages from other jurisdictions. See In re Estate of Ranftle, 917 N.Y.S.2d 195 (N.Y. App. Div. 2011) (holding that a Canadian same-sex marriage is valid in New York); Lewis v. N.Y. State Dep’t of Civil Serv., 60 A.D.3d 216 (N.Y. App. Div. 2009), aff ’d on other grounds sub nom. Godfrey, 13 N.Y.3d 358 (affirming the lower court’s holding that New York’s marriage recognition rule requires the recognition of out-of-state same-sex marriages); Martinez v. Cnty. of Monroe, 850 N.Y.S.2d 740 (N.Y. App. Div. 2008) (holding that plaintiff ’s same-sex Canadian marriage is entitled to recognition in New York).
Finally, although the Court of Appeals has yet to readdress the question of same-sex marriage recognition directly, its 2009 opinion in Godfrey v. Spano said nothing to cast doubt on the uniform lower-court authority

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recognizing the validity of same-sex marriages. 13 N.Y.3d at 377.
For all of these reasons, since the State, through its executive agencies and appellate courts, uniformly recognized Windsor’s same sex marriage in the year that she paid the federal estate taxes, the Court finds that she has standing.
C. The Effect of Baker v. Nelson
The Court next considers BLAG’s argument that the Supreme Court’s holding in Baker v. Nelson, 409 U.S. 810 (1972), requires it to dismiss Windsor’s case. There, the Supreme Court summarily affirmed a challenge to a Minnesota state law that denied a marriage license to a same-sex couple. The plaintiffs challenged the law in state court on equal protection grounds, arguing that “the right to marry without regard to the sex of the parties is a fundamental right,” and that “restricting marriage to only couples of the opposite sex is irrational and invidiously discriminatory.” Baker v. Nelson, 191 N.W.2d 185, 186 (Minn. 1971). The Supreme Court dismissed the challenge for “want of a substantial federal question.” Baker, 409 U.S. 810. BLAG now argues that Baker is dispositive of the issue before this Court and, as binding precedent, compels the Court to find that “defining marriage as between one man and one woman comports with equal protection.” (BLAG Mot. to Dismiss at 12.)
Summary judgments from the Supreme Court are binding on the lower courts only with regard to the precise legal questions and facts presented in the jurisdictional statement. Ill. State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 182 (1979). The case be-

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fore the Court does not present the same issue as that presented in Baker. DOMA defines marriage for federal purposes, with the effect of allocating federal rights and benefits. It does not preclude or otherwise inhibit a state from authorizing same-sex marriage (or issuing marriage licenses), as did the Minnesota statute in Baker. Indeed, BLAG agrees that DOMA does not preclude or inhibit same sex-marriage and Windsor does not argue that DOMA affects the fundamental right to marry.
Accordingly, after comparing the issues in Baker and those in the instant case, the Court does not believe that Baker “necessarily decided” the question of whether DOMA violates the Fifth Amendment’s Equal Protection Clause. Accord, e.g., Smelt v. Cnty. of Orange, 374 F. Supp. 2d 861, 872-73 (C.D. Cal. 2005), aff ’d in part, rev’d in part on other grounds, 447 F. 3d 673 (2006) (declining to find that Baker controlled in an equal protection challenge to DOMA), see also In re Kandu, 315 B.R. 123, 137 (Bankr. W.D. Wash. 2004) (same). The Court will not rest its decision on such a “slender reed” of support. Morse v. Republican Party of Va., 517 U.S. 186, 203 n.21 (1996).
Having decided that Baker does not require a decision in BLAG’s favor as a matter of law, the Court turns to the parties’ equal protection arguments.
D. Equal Protection
Equal protection requires the government to treat all similarly situated persons alike. City of Cleburne v. Cleburne Living Ctr., 476 U.S. 432, 439 (1985). It prohibits the government from drawing “distinctions between individuals based solely on differences that are

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irrelevant to a legitimate governmental objective.” Lehr v. Robertson, 463 U.S. 248, 265 (1983).
Of course, not all legislative classifications violate equal protection. See Nordlinger v. Hahn, 505 U.S. 1, 10 (1992). The “promise [of] equal protection of the laws must coexist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons.” Romer v. Evans, 517 U.S. 620, 631 (1996). With that reality in view, “[t]he general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest.” City of Cleburne, 473 U.S. at 440. That general rule, embodied in the “rational basis” test, applies in the mine-run of cases involving “commercial, tax and like regulation.” Massachusetts v. U.S. Dep’t of Health & Human Servs., et al., Nos. 10-2207 & 10-2214, slip op. at 13 (1st Cir. May 31, 2012).
Rational basis review is the “paradigm of judicial restraint.” FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 314 (1993). The burden of proving a statute unconstitutional falls on the party attacking the legislation. Heller v. Doe, 509 U.S. 312, 321 (1993); Baker v. Carr, 369 U.S. 186, 266 (1962) (Stewart, J., concurring). “A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.” McGowan v. Maryland, 366 U.S. 420, 426 (1961). Accordingly, courts must accept as constitutional those legislative classifications that bear a rational relationship to a legitimate government interest.

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Courts review with greater scrutiny classifications that disadvantage a suspect class or impinge upon the exercise of a fundamental right. Plyler v. Doe, 457 U.S. 202, 216-17 (1982). Pursuant to a court’s “strict scrutiny,” a classification violates equal protection unless it is “precisely tailored to serve a compelling governmental interest.” Id. at 217; see Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995). Classifications that disadvantage a quasi-suspect class are also subject to a heightened standard of constitutional review. Courts review those classifications with an intermediate level of scrutiny. Under “heightened” or “intermediate scrutiny,” the classification must be “substantially related to a legitimate state interest” to survive constitutional attack. Mills v. Habluetzel, 456 U.S. 91, 99 (1982).
There are few classifications that trigger strict or heightened scrutiny. See, e.g., Clark v. Jeter, 486 U.S. 456, 461 (1988) (illegitimacy subject to intermediate scrutiny); Miss. Univ. for Women v. Hogan, 458 U.S. 718, 723-24 (1982) (gender subject to intermediate scrutiny); Loving v. Virginia, 388 U.S. 1, 11 (1967 (race subject to strict scrutiny); Korematsu v. United States, 323 U.S. 214, 216 (1944) (national ancestry and ethnic origin subject to strict scrutiny). “And because heightened scrutiny requires an exacting investigation of legislative choices, the Supreme Court has made clear that ‘respect for the separation of powers’ should make courts reluctant to establish new suspect classes.” Thomasson v. Perry, 80 F.3d 915, 928 (1996) (quoting City of Cleburne, 473 U.S. at 441); see also Lyng v. Castillo, 477 U.S. 635, 638 (1986) (declining to extend strict scrutiny to “[c]lose relatives”); Mass. Bd. of Retirement v. Murgia, 427 U.S. 307, 313 (1976) (per curiam) (declining to extend strict scrutiny to the elderly).

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Windsor now argues that DOMA should be subject to strict (or at least intermediate) scrutiny because homosexuals as a class present the traditional indicia that characterize a suspect class: a history of discrimination, an immutable characteristic upon which the classification is drawn, political powerlessness, and a lack of any relationship between the characteristic in question and the class’s ability to perform in or contribute to society.
In making this claim, Windsor asks the Court to distinguish the precedent in eleven Courts of Appeals that have applied the rational basis test to legislation that classifies on the basis of sexual orientation. See Massachusetts v. HHS, Nos. 10-2207 & 10-2214; Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006); Lofton v. Sec’y of Dep’t of Children & Family Servs., 358 F. 3d 804 (11th Cir. 2004); Johnson v. Johnson, 385 F.3d 503 (5th Cir. 2004); Equality Found. v. City of Cincinnati, 128 F.3d 289 (6th Cir. 1997); Thomasson, 80 F.3d 915; Steffan v. Perry, 41 F.3d 677 (D.C. Cir. 1994); High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563 (9th Cir. 1990); Ben-Shalom v. Marsh, 881 F.2d 454 (7th Cir. 1989); Woodard v. United States, 871 F.2d 1068 (Fed. Cir. 1989); Nat’l Gay Task Force v. Bd. of Educ., 729 F.2d 1270 (10th Cir. 1984). She invites this Court to decide, as a matter of first impression in the Second Circuit, whether homosexuals are a suspect class.
Though there is no case law in the Second Circuit binding the Court to the rational basis standard in this context, the Court is not without guidance on the matter. For one, as the Supreme Court has observed, “courts have been very reluctant, as they should be in our federal system,” to create new suspect classes. City of

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Cleburne, 473 U.S. at 442. Moreover, the Supreme Court “conspicuously” has not designated homosexuals as a suspect class, even though it has had the opportunity to do so. See Massachusetts v. HHS, Nos. 10-2207 & 10-2214, slip op. at 15 (noting that “[n]othing indicates that the Supreme Court is about to adopt this new suspect classification when it conspicuously failed to do so in Romer”). Against this backdrop, this district court is not inclined to do so now. In any event, because the Court believes that the constitutional question presented here may be disposed of under a rational basis review, it need not decide today whether homosexuals are a suspect class.
The Court will, however, elaborate on an aspect of the equal protection case law that it believes affects the nature of the rational basis analysis required here. The Supreme Court’s equal protection decisions have increasingly distinguished between “[l]aws such as economic or tax legislation that are scrutinized under rational basis review[, which] normally pass constitutional muster,” and “law[s that] exhibit[] . . . a desire to harm a politically unpopular group,” which receive “a more searching form of rational basis review . . . under the Equal Protection Clause . . . .” Lawrence v. Texas, 539 U.S. 558, 579-80 (2003) (O’Connor, J., concurring); see Romer, 517 U.S. 620; City of Cleburne, 473 U.S. 432; U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528 (1973). It is difficult to ignore this pattern, which suggests that the rational basis analysis can vary by context.
At least one Court of Appeals has considered this pattern as well. As the First Circuit explains, “Without relying on suspect classifications, Supreme Court equal

14a protection decisions have both intensified scrutiny of purported justifications where minorities are subject to discrepant treatment and have limited the permissible justifications.” See Massachusetts v. HHS, Nos. 10-2207 & 10-2214, slip op. at 15. And, “in areas where state regulation has traditionally governed, the Court may require that the federal government interest in intervention be shown with special clarity.” Id.
Regardless whether a more “searching” form of rational basis scrutiny is required where a classification burdens homosexuals as a class and the states’ prerogatives are concerned, at a minimum, this Court must “insist on knowing the relation between the classification adopted and the object to be attained.” Romer, 517 U.S. at 632. “The search for the link between classification and objective gives substance to the [equal protection analysis].” Id. Additionally, as has always been required under the rational basis test, irrespective of the context, the Court must consider whether the government’s asserted interests are legitimate. Pursuant to these established principles, and mindful of the Supreme Court’s jurisprudential cues, the Court finds that DOMA’s section 3 does not pass constitutional muster.2
2 Any additional discussion of heightened or intermediate scrutiny would be “wholly superfluous to the decision” and contrary to settled principles of constitutional avoidance. City of Cleburne, 473 U.S. at 456 (Marshall, J., concurring in part, dissenting in part); Spector Motor Serv., Inc. v. McLaughlin, 323 U.S. 101, 105 (1944); see also Miss. Univ. for Women, 458 U.S. at 724 n.9 (declining to address strict scrutiny when heightened scrutiny was sufficient to invalidate the challenged action); Hooper v. Bernalillo Cnty. Assessor, 472 U.S. 612, 618 (1985) (declining to reach heightened scrutiny in reviewing classifications that failed the rational basis test).

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E. Congress’s Justifications
Contemporaneous with its enactment, Congress justified DOMA as: defending and nurturing the traditional institution of marriage; promoting heterosexuality; encouraging responsible procreation and childrearing; preserving scarce government resources; and defending traditional notions of morality. In its motion to dismiss and memorandum in opposition to summary judgment, BLAG advances some, but not all of these interests as rational bases for DOMA. It additionally asserts that Congress passed DOMA in the interests of caution, maintaining consistency in citizens’ eligibility for federal benefits, promoting a social understanding that marriage is related to childrearing, and providing children with two parents of the opposite sex. The Court considers all of these interests to determine whether Windsor has “negative[d] every conceivable basis which might support [the statute].” Heller, 509 U.S. at 320-21 (citation and internal quotation marks omitted).
1. Caution and The Traditional Institution of Marriage
BLAG submits that “caution” was a rational basis for DOMA insofar as Congress wanted time to consider whether it should embrace (some of) the states’ “novel redefinition” of marriage. As BLAG describes it, caution justified DOMA because altering the social concept of marriage would undermine Congress’s goal of nurturing the foundational institution of marriage. (BLAG Mot. to Dismiss at 29–31.) By that account, Congress’s putative interest in “caution” seems, in substance, no different than an interest in nurturing the traditional institution of marriage. See H.R. Rep. No. 104–664, at

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12. The Court therefore considers both of these interests together.
With respect to traditional marriage, BLAG argues that Congress believed DOMA would promote it by “maintain[ing] the definition of marriage that was universally accepted in American law.” (BLAG Mot. to Dismiss at 28). That interest may be legitimate.3 However, it is unclear how DOMA advances it.
DOMA does not affect the state laws that govern marriage. (BLAG Mot. to Dismiss at 20 (noting that DOMA does not “directly and substantially interfere with the ability of same-sex couples to marry”).) Precisely because the decision of whether same-sex couples can marry is left to the states, DOMA does not, strictly speaking, “preserve” the institution of marriage as one between a man and a woman. The statute creates a federal definition of marriage. But that definition does not give content to the fundamental right to marry—and it
3 While tradition as an end in itself may not be a legitimate state interest in this case, see Heller, 509 U.S. at 326 (noting that the “[a]ncient lineage” of a tradition does not necessarily make its preservation a legitimate government goal), the Court acknowledges that an interest in maintaining the traditional institution of marriage, when coupled with other legitimate interests, could be a sound reason for a legislative classification, see Lawrence, 539 U.S. at 585 (O’Connor, J., concurring) (stating that “preserving the traditional institution of marriage” would be a legitimate state interest in an equal protection analysis). To the extent Congress had an interest in defending traditional notions of morality in furtherance of an interest in traditional marriage, H.R. Rep. No. 104–664, at 16, the Court agrees that “[p]reserving th[e] institution [of traditional marriage] is not the same as mere moral disapproval of an excluded group, and that is singularly so in this case given the range of bipartisan support for [DOMA].” Massachusetts v. HHS, Nos. 10–2207 & 10–2214, slip op. at 29, 30 (citation and internal quotation marks omitted).

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is the substance of that right, not its facial definition, that actually shapes the institution of marriage. Cf. De Sylva v. Ballentine, 351 U.S. 570, 580 (1956) (noting that “[t]he scope of a federal right is, of course, a federal question, but that does not mean that its content is not to be determined by state, rather than federal law, [which] is especially true where a statute deals with a familial relationship [because] there is no federal law of domestic relations”).
To the extent Congress had any other independent interest in approaching same-sex marriage with caution, for much the same reason, DOMA does not further it. A number of states now permit same-sex marriages. DOMA did not compel those states to “wait[ ] for evidence spanning a longer term before engaging in . . . a major redefinition of a foundational social institution.” (BLAG Mot. to Dismiss at 29.) Thus, whatever the “social consequences” of this legal development ultimately may be, DOMA has not, and cannot, forestall them.4
4 Congress also expressed “a corresponding interest in promoting heterosexuality” as “closely related to the interest in protecting traditional marriage.” H.R. Rep. No. 104–664, at 15 n.53. BLAG does not contend that this is a rational basis for DOMA’s classification; nonetheless, the Court briefly considers it, as a “conceivable” basis that “might” support it. Heller, 509 U.S. at 320. A permissible classification must at least “find some footing in the realities of the subject addressed by the legislation.” Id. at 321. Here, such footing is lacking. DOMA affects only those individuals who are already married. The Court finds it implausible that section 3 does anything to persuade those married persons (who are homosexuals) to abandon their current marriages in favor of heterosexual relationships. Thus, the stated goal of promoting heterosexuality is so attenuated from DOMA’s classification that it “render[s] the distinction arbitrary or irrational.” City of Cleburne, 473 U.S. at 446.

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2. Childrearing and Procreation
Promoting the ideal family structure for raising children is another reason Congress might have enacted DOMA. Again, the Court does not disagree that promoting family values and responsible parenting are legitimate governmental goals. The Court cannot, however, discern a logical relationship between DOMA and those goals.
BLAG argues that Congress enacted DOMA to avoid a social perception that marriage is not linked to childrearing. In furtherance of that interest, it argues, Congress might have passed DOMA to deter heterosexual couples from having children out of wedlock, or to incentivize couples who are pregnant to get married. (BLAG Mot. to Dismiss at 36.) BLAG also claims that Congress had an interest in promoting the optimal social (family) structure for raising children—that is, households with one mother and one father. (BLAG Mot. to Dismiss at 38.) These concerns appear related to Congress’s contemporaneously stated interest in “responsible procreation.” H.R. Rep. No. 104–664, at 12–13.
These are interests in the choices that heterosexual couples make: whether to get married, and whether and when to have children. Yet DOMA has no direct impact on heterosexual couples at all; therefore, its ability to deter those couples from having children outside of marriage, or to incentivize couples that are pregnant to get married, is remote, at best. It does not follow from the exclusion of one group from federal benefits (same-sex married persons) that another group of people (opposite-sex married couples) will be incentivized to take any action, whether that is marriage or procreation. See In re Levenson, 587 F.3d 925, 934 (9th Cir. 2009).

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Conceivably, Congress could have been interested more generally in maintaining the societal perception that a primary purpose of marriage is procreation. However, even formulated as such, the Court cannot see a link between DOMA and childrearing. DOMA does not determine who may adopt and raise children. Nor could it, as these matters of family structure and relations “belong[ ] to the laws of the States and not to the laws of the United States.” Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12 (2004).
At most, then, DOMA has an indirect effect on popular perceptions of what a family “is” and should be, and no effect at all on the types of family structures in which children in this country are raised. And so, although this Court must “accept a legislature’s generalizations even when there is an imperfect fit between means and ends,” Heller, 509 U.S. at 320, here, Congress’s goal is “so far removed” from the classification, it is impossible to credit its justification. Romer, 517 U.S. at 635; see Lewis v. Thompson, 252 F.3d 567, 584 n.27 (2d Cir. 2001) (noting that the justification for the law cannot rely on factual assumptions that are beyond the “limits of ‘rational speculation’ ” (quoting Heller, 509 U.S. at 320)).
3. Consistency and Uniformity of Federal Benefits
Additionally, BLAG explains that Congress was motivated to define marriage at the federal level to ensure that federal benefits are distributed consistently. In other words, Congress might have enacted DOMA to avoid a scenario in which “people in different States . . . have different eligibility to receive Federal benefits,” depending on the state’s marriage laws. (BLAG Mot. to Dismiss at 34 (quoting 142 Cong. Rec. S10121 (daily ed. Sept. 10, 1996) (statement of Sen. Ashcroft)).)

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Here, the Court does discern a link between the means and the end. It is problematic, though, that the means used in this instance intrude upon the states’ business of regulating domestic relations. That incursion skirts important principles of federalism and therefore cannot be legitimate, in this Court’s view.
In the first instance, it bears mention that this notion of “consistency,” as BLAG presents it, is misleading. Historically the states—not the federal government— have defined “marriage.” Cf. United States v. Lopez, 514 U.S. 549, 583 (1995) (Kennedy, J., concurring) (noting that the states have enjoyed the latitude to “experiment[ ] and exercis[e] their own judgment in an area to which [they] lay claim by right of history and expertise”). For that reason, before DOMA, any uniformity at the federal level with respect to citizens’ eligibility for marital benefits was merely a byproduct of the states’ shared definition of marriage. The federal government neither sponsored nor promoted that uniformity. See In re Levenson, 587 F.3d at 933 (noting that the relevant status quo prior to DOMA was the federal government’s recognition of any marriage declared valid according to state law); Gill v. Office of Pers. Mgmt., 699 F. Supp. 2d 374, 393 (D. Mass. 2010) (same).
Yet even if Congress had developed a newfound interest in promoting or maintaining consistency in the marital benefits that the federal government provides, DOMA is not a legitimate method for doing so. To accomplish that consistency, DOMA operates to reexamine the states’ decisions concerning same-sex marriage. It sanctions some of those decisions and rejects others. But such a sweeping federal review in this arena does not square with our federalist system of government,

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which places matters at the “core” of the domestic relations law exclusively within the province of the states. See Ankenbrandt v. Richards, 504 U.S. 689, 716 (1992) (Blackmun, J., concurring); Sosna v. Iowa, 419 U.S. 393, 404 (1975); see also Massachusetts v. U.S. Dep’t of Health & Human Servs., 698 F. Supp. 2d 234, 249-50 (D. Mass. 2010) (discussing the history of marital status determinations as an attribute of state sovereignty).
The states may choose, through their legislative or constitutional processes, to preserve traditional marriage or to redefine it. See Golinski v. Office of Pers. Mgmt., 824 F. Supp. 2d 968, 988 (N.D. Cal. 2012) (noting that thirty states have passed constitutional amendments banning same-sex marriage). But generally speaking, barring a state’s inability to assume its role in regulating domestic relations, the federal government has not attempted to manage those processes and affairs. See id. at 1000 n.10 (observing that, historically, the federal government has only legislated in this area where there has been a failure or absence of state government). BLAG has conceded this historical fact. See Transcript of Oral Argument at 10:15–20, 18:2-5, Golinski, 824 F. Supp. 2d 968 (No. 10–257) (conceding that BLAG’s “research hasn’t shown that there are historical examples which [sic] Congress has legislated on behalf of the federal government in the area of domestic relations”). This is the “virtue of federalism.” Massachusetts v. HHS, Nos. 10–2207 & 10–2214, slip op. at 30.
4. Conserving the Public Fisc
Lastly, Congress also justified DOMA as a means of conserving government resources. (BLAG Mot. to Dismiss at 32.) An interest in conserving the public fisc alone, however, “can hardly justify the classification

22a used in allocating those resources.” Plyler, 457 U.S. at 227. After all, excluding any “arbitrarily chosen group of individuals from a government program” conserves government resources. Dragovich v. U.S. Dep’t of the Treasury, 764 F. Supp. 2d 1178, 1190 (N.D. Cal. 2011). With no other rational basis to support it, Congress’s interest in economy does not suffice. Accord, e.g., Dragovich v. U.S. Dep’t of the Treasury, No. C 10-01564, slip op. at 26 (N.D. Cal. May 24, 2012); Golinski, 824 F. Supp. 2d at 994–95.
CONCLUSION
For the foregoing reasons, Plaintiff ’s motion for summary judgment is GRANTED and Defendant– Intervenor’s motion to dismiss is DENIED. The Court declares that section 3 of the Defense of Marriage Act, 1 U.S.C. § 7, is unconstitutional as applied to Plaintiff. Plaintiff is awarded judgment in the amount of $353,053.00, plus interest and costs allowed by law. Each party shall bear their own costs and fees.
This case is CLOSED. The clerk of the court is directed to terminate the motions at docket numbers 28, 49, and 52. SO ORDERED:
/s/ BARBARA S. JONES BARBARA S. JONES United States District Judge
Dated: New York, New York June 6, 2012

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APPENDIX B UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
10 CIVIL 8435 (BSJ) EDITH SCHLAIN WINDSOR, PLAINTIFF
v. THE UNITED STATES OF AMERICA, DEFENDANT
[Filed: June 7, 2012]
JUDGMENT
Plaintiff having moved for summary judgment; Defendant-Intervenor having moved to dismiss, and the matter having come before the Honorable Barbara S. Jones, United States District Judge, and the Court, on June 6, 2012, having rendered its Order granting Plaintiffs motion for summary judgment, denying DefendantIntervenor’s motion to dismiss, declaring that section 3 of the Defense of Marriage Act, 1 U.S.C. § 7, is unconstitutional as applied to Plaintiff, awarding Plaintiff judgment in the amount of $363,053.00, plus interest and costs allowed by law with each party to bear their own costs and fees, it is,
ORDERED, ADJUDGED AND DECREED: That for the reasons stated in the Court's Order dated June 6, 2012, Plaintiff ’s motion for summary judgment is grant-

24a ed and Defendant-Intervenor’s motion to dismiss is denied; the Court declares that section 3 of the Defense of Marriage Act, 1 U.S.C. § 7, is unconstitutional as applied to Plaintiff; Plaintiff is awarded judgment in the amount of $363,053.00, plus interest and costs allowed by law; each party shall bear their own costs and fees; accordingly, the case is closed. Dated: New York, New York
June 7, 2012
RUBY J. KRAJICK Clerk of Court
BY: /s/ ILLEGIBLE Deputy Clerk

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APPENDIX C UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
Civil Action No. 10-CV-8435 (BSJ)(JCF) ECF CASE
EDITH SCHLAIN WINDSOR, ET AL., PLAINTIFF v.
THE UNITED STATES OF AMERICA, DEFENDANT
Filed: June 14, 2012
NOTICE OF APPEAL
TO THE CLERK OF THIS COURT AND ALL PARTIES OF RECORD:
NOTICE IS HEREBY GIVEN that Defendant the United States of America hereby appeals to the United States Court of Appeals for the Second Circuit from the Judgment dated June 7, 2012 [ECF No. 94] and the underlying Order dated June 6, 2012 [ECF No. 93]
Dated this 14th day of June, 2012.

26a Dated: June 14, 2012
Respectfully Submitted, STUART F. DELERY Acting Assistant Attorney General ARTHUR R. GOLDBERG Assistant Branch Director
/s/ JEAN LIN JEAN LIN (NY Bar No. 4074530) Senior Trial Counsel United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave., N.W. Washington, DC 20530

27a
APPENDIX D
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
No. 10-CV-8435 (BSJ)(JCF) EDITH SCHLAIN WINDSOR, IN HER CAPACITY AS EXECUTOR OF THE ESTATE OF THEA CLARA SPYER,
PLAINTIFF
v. THE UNITED STATES OF AMERICA, DEFENDANT
Filed: June 8, 2012
NOTICE OF APPEAL OF INTERVENORDEFENDANT THE BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF
REPRESENTATIVES
Intervenor-Defendant the Bipartisan Legal Advisory Group of the U.S. House of Representatives (“House”) hereby appeals to the U.S. Court of Appeals for the Second Circuit the District Court’s Order (June 6, 2012) (ECF No. 93), and Judgment (June 7, 2012) (ECF No. 94), both insofar as they grant plaintiff ’s [ . . . ] Motion for Summary Judgment (June 24, 2011) (ECF No. 28) and deny the [House]’s Motion to Dismiss (Aug. 1, 2011) (ECF No. 52). Copies of the Order and Judgment are attached as Exhibits A and B, respectively.

28a
The statutory basis for this appeal is 28 U.S.C. § 1291. The House is exempt from the filing fee requirement for this appeal. See 28 U.S.C. § 1913; Judicial Conference of the United States, Court of Appeals Miscellaneous Fee Schedule, available at http://www.uscourts.gov/FormsAndFees/Fees/CourtOf AppealsMiscellaneousFeeSchedule.aspx.
Respectfully submitted, /s/ PAUL D. CLEMENT
PAUL D. CLEMENT15 H. Christopher Bartolomucci Conor B. Dugan Nicholas J. Nelson
BANCROFT PLLC 1919 M Street, N.W., Suite 470 Washington, D.C. 20036 Telephone: (202) 234-0090 Facsimile: (202) 234-2806 Counsel for Intervenor-Defendant the Bipartisan Legal Advisory Group of the U.S. House of Representatives26
1 Kerry W. Kircher, as the ECF filer of this document, attests that concurrence in the filing of the document has been obtained from signatory Paul D. Clement.
2 The Bipartisan Legal Advisory Group, which speaks for the House in litigation matters, is currently comprised of the Honorable John A. Boehner, Speaker of the House, the Honorable Eric Cantor, Majority Leader, the Honorable Kevin McCarthy, Majority Whip, the Honorable Nancy Pelosi, Democratic Leader, and the Honorable Steny H. Hoyer, Democratic Whip. The Democratic Leader and

29a OF COUNSEL: Kerry W. Kircher, General Counsel William Pittard, Deputy General Counsel Christine Davenport, Senior Assistant Counsel Todd B. Tatelman, Assistant Counsel Mary Beth Walker, Assistant Counsel OFFICE OF GENERAL COUNSEL U.S. HOUSE OF REPRESENTATIVES 219 Cannon House Office Building Washington, D.C. 20515 Telephone: (202) 225-9700 Facsimile: (202) 226-1360 June 8, 2012
Democratic Whip decline to support the filing of this Notice of Appeal.

30a
APPENDIX E
1. U.S. Const. Amend. V provides, in pertinent part: No person shall * * * be deprived of life, liberty, or property, without due process of law * * * .
2. 1 U.S.C. 7 provides:
Definition of “marriage” and “spouse”
In 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.

 
 No. 12-63

In The
Supreme Court of the United States
________________
EDITH SCHLAIN WINDSOR, Petitioner,
v. THE UNITED STATES OF AMERICA,
and BIPARTISAN LEGAL ADVISORY GROUP OF THE UNITED STATES HOUSE OF REPRESENTATIVES,
Respondents. ________________
On Petition for a Writ of Certiorari Before Judgment to the United States Court of App_e_a__ls__f_o_r__th__e__S_e_cond Circuit

BRIE_F__I_N___O_P__P__O_S__I_TION

KERRY W. KIRCHER

PAUL D. CLEMENT

General Counsel

Counsel of Record

WILLIAM PITTARD

H. CHRISTOPHER BARTOLOMUCCI

Deputy General Counsel NICHOLAS J. NELSON

CHRISTINE DAVENPORT BANCROFT PLLC

Senior Assistant Counsel 1919 M Street, N.W.

TODD B. TATELMAN

Suite 470

MARY BETH WALKER

Washington, D.C. 20036

Assistant Counsels

(202) 234-0090

OFFICE OF GENERAL COUNSEL pclement@bancroftpllc.com

U.S. HOUSE OF

REPRESENTATIVES

219 Cannon House Office Bldg.

Washington, D.C. 20515

(202) 225-9700

Counsel for Respondent

QUESTIONS PRESENTED
Section 3 of the Defense of Marriage Act (“DOMA”) provides that for purposes of federal law “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 wife.” 1 U.S.C. § 7. The questions presented are:
(1) Does Section 3 of DOMA violate the equal protection component of the Due Process Clause of the Fifth Amendment?
(2) Does Petitioner have standing to challenge DOMA given that her standing is premised on a Canadian marriage certificate obtained at a time when New York law did not recognize same-sex marriage?

ii
PARTIES TO THE PROCEEDING
Respondent the Bipartisan Legal Advisory Group of the U.S. House of Representatives (“House”) was the intervenor-defendant in the district court and is an appellant in the Second Circuit and a respondent in this Court.1
Respondent the United States is an appellant in the Second Circuit.
Petitioner Edith Schlain Windsor, in her capacity as executor of the estate of Thea Clara Spyer, was the plaintiff in the district court and is the appellee in the Second Circuit.
1 The United States House of Representatives has articulated its institutional position in litigation matters through a fivemember bipartisan leadership group since at least the early 1980’s (although the formulation of the group’s name has changed somewhat over time). Since 1993, the House rules have formally acknowledged and referred to the Bipartisan Legal Advisory Group, as such, in connection with its function of providing direction to the Office of the General Counsel. See, e.g., Rule I.11, Rules of the House of Representatives, 103rd Cong. (1993); Rule II.8, Rules of the House of Representatives, 112th Cong. (2011). While the group seeks consensus whenever possible, it, like the institution it represents, functions on a majoritarian basis when consensus cannot be achieved. The Bipartisan Legal Advisory Group currently is comprised of the Honorable John A. Boehner, Speaker of the House, the Honorable Eric Cantor, Majority Leader, the Honorable Kevin McCarthy, Majority Whip, the Honorable Nancy Pelosi, Democratic Leader, and the Honorable Steny H. Hoyer, Democratic Whip. The Democratic Leader and the Democratic Whip have declined to support the position taken by the Group on the merits of DOMA Section 3’s constitutionality in this and other cases.

iii
TABLE OF CONTENTS QUESTIONS PRESENTED ....................................... i PARTIES TO THE PROCEEDING........................... ii TABLE OF AUTHORITIES ..................................... iv INTRODUCTION ...................................................... 1 STATEMENT OF THE CASE ................................... 1 1. The Defense of Marriage Act .............................. 1 2. The Justice Department’s About-Face and
the House’s Intervention .................................... 5 3. History of This Case............................................ 6
a. Procedural History ....................................... 6 b. The District Court’s Decision ....................... 8 c. Second Circuit Proceedings ......................... 9 4. Other Pending Petitions Involving DOMA Section 3 ............................................................ 10 REASONS FOR DENYING THE WRIT ................. 11 I. Gill Presents Exactly the Same Question Regarding DOMA’s Constitutionality .............. 13 II. Petitioner’s Article III Standing Turns on a Question of State Law That Has Been Expressly Reserved by the New York Court of Appeals, and Presents a Vehicle Problem Unique to This Case ........................... 18 III. This Case Was Not “Fully Ventilated” Below ................................................................. 24 IV. Certiorari in This Case Would Expedite Neither This Court’s Review of DOMA Nor the Resolution of Petitioner’s Claims ............... 25 CONCLUSION ......................................................... 26

iv

TABLE OF AUTHORITIES

Cases

Page(s)

Adams v. Howerton, 486 F. Supp. 1119 (C.D. Cal. 1980), aff’d, 673 F.2d 1036 (9th Cir. 1982), cert. denied, 458 U.S. 1111 (1982) .......................... 4

ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 547 F.3d 109 (2d Cir. 2008)................................... 15

Baehr v. Lewin, 852 P.2d 44 (Haw. 1993) ......................................... 3

Baker v. Nelson, 409 U.S. 810 (1972) ................................................. 8

Bishop v. Wood, 426 U.S. 341 (1976) ............................................... 22

Coleman v. Paccar, Inc., 424 U.S. 1301 (1976) ............................................. 11

Comm’r v. Bosch’s Estate, 387 U.S. 456 (1967) ............................................... 22

Dean v. District of Columbia, 653 A.2d 307 (D.C. 1995) ........................................ 4

Dixon v. Duffy, 344 U.S. 143 (1952) ............................................... 18

Gill v. OPM, 699 F. Supp. 2d 374 (D. Mass. 2010) .................... 15

Godfrey v. Spano, 920 N.E.2d 328 (N.Y. 2009) ........................ 20, 22

Golinski v. OPM, 781 F. Supp. 2d 967 (N.D. Cal. 2012) ................... 11

Golinski v. OPM, 824 F. Supp. 2d 968 (N.D. Cal. 2012) ................... 16

v
Gratz v. Bollinger, 539 U.S. 244 (2003) ............................................... 17
Greene v. McElroy, 254 F.2d 944 (D.C. Cir. 1958) ............................... 17
Greene v. McElroy, 360 U.S. 474 (1959) ............................................... 17
Grutter v. Bollinger, 539 U.S. 306 (2003) ............................................... 17
Haring v. Prosise, 462 U.S. 306 (1983) ............................................... 22
Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006) .................................. 6, 20
Hunt v. Ake, No. 04-cv-1852 (M.D. Fla. Jan. 20, 2005) ............... 5
In re Executive Office of President, 215 F.3d 20 (D.C. Cir. 2000) ................................. 15
In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004) ................ 5
Lewis v. N.Y. State Dep’t of Civ. Serv., 60 A.D.3d 216 (N.Y. App. Div. 2009) .................... 23
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ............................................... 19
Massachusetts v. U.S. Dep’t of HHS, 682 F.3d 1 (1st Cir. 2012).................................. 2, 16
Pedersen v. OPM, No. 10-cv-1750, 2012 WL 3113883 (D. Conn. July 31, 2012)........................................ 11
Penguin Grp. (USA) Inc. v. Am. Buddha, 640 F.3d 497 (2d Cir. 2011)................................... 21
Pennoyer v. Neff, 95 U.S. 714 (1877) ................................................. 22

vi
Porter v. Dicken, 328 U.S. 252 (1946) ............................................... 18
Porter v. Lee, 328 U.S. 246 (1946) ............................................... 18
Smelt v. Cnty. of Orange, 374 F. Supp. 2d 861 (C.D. Cal. 2005), aff’d in part and vacated in part for lack of standing, 447 F.3d 673 (9th Cir. 2006), cert. denied, 549 U.S. 959 (2006) ............................ 5
Smelt v. Cnty. of Orange, 447 F.3d 673 (9th Cir. 2006), cert. denied, 549 U.S. 959 (2006) .......................... 19
Sosna v. Iowa, 419 U.S. 393 (1975) ............................................... 22
Sullivan v. Bush, No. 04-cv-21118 (S.D. Fla. Mar. 16, 2005) ............. 5
Taylor v. McElroy, 360 U.S. 709 (1959) ............................................... 17
United States v. Booker, 543 U.S. 220 (2005) ............................................... 17
Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005) ................... 5
Constitutional Provision
U.S. Const. art. II, § 3 ................................................ 5
Statutes
1 U.S.C. § 7 .............................................................. i, 2
5 U.S.C. § 8101 ........................................................... 4
5 U.S.C. § 8341(a)....................................................... 4
8 U.S.C. § 1186a ........................................................ 4
I.R.C. § 2(b)(2) ............................................................ 4

vii
I.R.C. § 6013(a)........................................................... 4
I.R.C. § 7703(b)........................................................... 4
38 U.S.C. § 101(31)..................................................... 4
42 U.S.C. § 1382c(d)(2)............................................... 4
42 U.S.C. § 416 ........................................................... 4
Revenue Act of 1921, § 223(b)(2), 42 Stat. 227.............................................................. 4
Veterans and Survivors Pension Interim Adjustment Act of 1975, Pub. L. No. 94-169, Title I, § 101(31), 89 Stat. 1013, codified at 38 U.S.C. § 101(31)................................................................... 4
Regulation & Rules
U.S. Dep’t of Labor, Final Rule, The Family and Medical Leave Act of 1993, 60 Fed. Reg. 2,180 (Jan. 6, 1995)............................ 4
Rule I.11, Rules of the House of Representatives, 103rd Cong. (1993)...................... ii
Rule II.8, Rules of the House of Representatives, 112th Cong. (2011)...................... ii
Other Authorities
142 Cong. Rec. 17093 (1996)...................................... 2
142 Cong. Rec. 22469 (1996)...................................... 2
142 Cong. Rec. S10121 (daily ed. Sept. 10, 1996) (Sen. Ashcroft) ............. 14
142 Cong. Rec. S4870 (daily ed. May 8, 1996) (Sen. Nickles) .................. 14
Br. in Resp. of Nancy Gill et al., Bipartisan Legal Advisory Grp. of the U.S.

viii
House of Reps. v. Gill, Nos. 12-13 & 12-15 (Aug. 2, 2012)......................................................... 11
Br. of Pls.-Appellees Nancy Gill, et al., Massachusetts v. U.S. Dep’t of HHS, Nos. 10-2204, 10-2207, & 10-2214 (1st Cir. Oct. 28, 2011) .......................................... 17
Defense of Marriage Act: Hearing on H.R. 3396 Before the Subcomm. on the Judiciary, 104th Cong. (1996) ................................ 3
Defense of Marriage Act: Hearing on S. 1740 Before the S. Comm. on the Judiciary, 104th Cong. (1996) .............................................. 2, 3
Letter from Andrew Fois, Asst. Att’y Gen., to Rep. Canady (May 29, 1996), reprinted in H.R. Rep. No. 104-664 (1996), reprinted in 1996 U.S.C.C.A.N. 2905 .......................................... 2
Letter from Andrew Fois, Asst. Att’y Gen., to Rep. Hyde (May 14, 1996), reprinted in H.R. Rep. No. 104-664 (1996), reprinted in 1996 U.S.C.C.A.N. 2905 .......................................... 2
Letter from Andrew Fois, Asst. Att’y Gen., to Sen. Hatch (July 9, 1996), reprinted in The Defense of Marriage Act: Hearing on S. 1740 Before the S. Comm. on the Judiciary, 104th Cong. (1996) .................................................. 2
H.R. Rep. No. 104-664 (1996), reprinted in 1996 U.S.C.C.A.N. 2905 ..................... 2
Letter from Att’y Gen. Eric H. Holder, Jr., to the Hon. John A. Boehner, Speaker of the House (Feb. 23, 2011), http://www.justice.gov/opa/pr/2011/ February/11-ag-223.html .................................... 5, 6

ix
Pet. for Cert., No. 12-13, Bipartisan Legal Advisory Group of the U.S. House of Representatives v. Gill (June 29, 2012) ........................................... 11
Pet. for Cert., No. 12-15, U.S. Dep’t of HHS v. Massachusetts (July 3, 2012) ................................ 11
Pet. for Cert., No. 12-16, Golinski v. OPM, (July 3, 2012) .......... 11
Pet. for Cert., No. 504, Taylor v. McElroy, (Nov. 8, 1958)........... 17
Resp. of the Commonwealth of Mass. in Supp. of Cert., U.S. Dep’t of HHS v. Massachusetts, Nos. 12-13 & 12-15 (July 20, 2012) ....................................................... 11
Thomas Kaplan, After Long Wait, Gay Couples Marry in New York, N.Y. Times (July 23, 2011) http://www.nytimes.com/2011/07/24/nyregi on/across-new-york-hundreds-of-gaycouples-to-marry-on-sunday.html ........................ 19

INTRODUCTION
The House respectfully opposes the extraordinary Petition for a Writ of Certiorari Before Judgment filed in this case. The important issue of the constitutionality of Section 3 of DOMA is squarely presented to this Court in the earlier-filed Petition after judgment in No. 12-13, Bipartisan Legal Advisory Group of the U.S. House of Representatives v. Gill. That Petition comes in the ordinary course following the judgment and opinion of the Court of Appeals for the First Circuit. There is no reason to take the extraordinary step of granting certiorari before judgment here when the exact same issue is presented in a pending petition for certiorari after judgment. That is particularly true in this case, where the Petition is not only premature but presents a vehicle problem concerning Petitioner’s standing that is unique to this case.
In short, granting certiorari here, instead of or in addition to in Gill, would serve only to complicate and confuse the Court’s consideration of DOMA’s constitutionality. Accordingly, the Court should grant the House’s petition in No. 12-13, and deny the instant petition and allow the Second Circuit to determine how best to proceed in light of this Court’s consideration of Gill.
STATEMENT OF THE CASE
1. The Defense of Marriage Act
The Defense of Marriage Act of 1996 “was enacted with strong majorities in both Houses [of Congress] and signed into law by President Clinton.” Massachusetts v. U.S. Dep’t of HHS, 682 F.3d 1, 6 (1st Cir. 2012). The House of Representatives voted

2
342-67 to enact DOMA, and the Senate voted 85-14 to do so. See 142 Cong. Rec. 17093-94 (1996) (House); id. at 22467 (Senate).
Section 3 of the Act defines “marriage” as the legal union of one man and one woman and “spouse” as a person of the opposite sex who is a husband or wife. 1 U.S.C. § 7. These definitions apply for purposes of federal law only. DOMA does not bar or invalidate any state-law marriage, but leaves states free to decide whether they will recognize same-sex marriage. DOMA simply asserts the federal government’s right as a separate sovereign to provide its own definition for purposes of federal programs and funding.
While Congress was considering DOMA, it requested the opinion of the Department of Justice (“the Department”) on the bill’s constitutionality, and the Department three times reassured Congress by letter that DOMA was constitutional. See Letters from Andrew Fois, Asst. Att’y Gen., to Rep. Canady (May 29, 1996), reprinted in H.R. Rep. No. 104-664, 34 (1996), reprinted in 1996 U.S.C.C.A.N. 2905 (“House Rep.”); to Rep. Hyde (May 14, 1996), reprinted in House Rep. 33-34; and to Sen. Hatch (July 9, 1996), reprinted in The Defense of Marriage Act: Hearing on S. 1740 Before the S. Comm. on the Judiciary, 104th Cong. at 2 (1996) (“Senate Hrg.”). Congress also received and considered other expert advice on DOMA’s constitutionality and concluded that DOMA is constitutional. E.g., House Rep. 33 (DOMA “plainly constitutional”); Defense of Marriage Act: Hearing on H.R. 3396 Before the Subcomm. on the Judiciary, 104th Cong. 87-117 (1996) (testimony of Professor Hadley Arkes); Senate Hrg. 1, 2 (Sen.

3
Hatch) (DOMA “is a constitutional piece of legislation” and “a legitimate exercise of Congress’ power”); id. at 23-41 (testimony of Professor Lynn D. Wardle); id. at 56-59 (letter from Professor Michael W. McConnell).
Congress, of course, did not invent the meanings of the words “marriage” and “spouse” when it enacted DOMA in 1996. Instead, it adopted the traditional definitions of those terms. Nor was the timing of Congress’ decision a fortuity. Instead, Congress acted to ensure that Hawaii’s novel and then-recent decision to take steps toward redefining marriage, see Baehr v. Lewin, 852 P.2d 44 (Haw. 1993), did not automatically dictate the definition in other jurisdictions. Thus, Section 2 of DOMA allowed each state to decide whether to retain the traditional definition without having another jurisdiction’s decision imposed via full faith and credit principles, and Section 3 preserved the federal government’s ability to retain the traditional definition for federal law purposes. Moreover, contrary to Petitioner’s suggestion, see Pet. 9-10, pre-1996 Congresses decidedly did not regard themselves as powerless to define marriage for purposes of federal law. Although Congress often has made eligibility for federal marital benefits or duties turn on a couple’s state-law marital status, it also has a long history of supplying federal marital definitions in various contexts—definitions that always have been controlling for purposes of federal law, without regard to the couple’s status under state law.2
2 See, e.g., I.R.C. § 2(b)(2) (deeming persons unmarried who are separated from their spouse or whose spouse is a nonresident alien); I.R.C. § 7703(b) (excluding some couples

4
Indeed, in clarifying the meanings of “marriage” and “spouse” in federal law by enacting DOMA, Congress merely reaffirmed what it has always meant when using those words in federal law—and what courts and the Executive Branch have always understood it to mean: A traditional male-female couple.3
“living apart” from federal marriage definition for tax purposes); 38 U.S.C. § 101(31) (for purposes of veterans’ benefits, “’spouse’ means a person of the opposite sex”); 42 U.S.C. § 416 (defining “spouse,” “wife,” “husband,” “widow,” “widower,” and “divorce,” for social-security purposes); 42 U.S.C. § 1382c(d)(2) (recognizing common-law marriage for purposes of social security benefits without regard to state recognition); 5 U.S.C. §§ 8101(6), (11), 8341(a)(1)(A)-(a)(2)(A) (federal employee-benefits statutes); 8 U.S.C. § 1186a(b)(1) (anti-fraud criteria regarding marriage in immigration law context).
3 See, e.g., Revenue Act of 1921, § 223(b)(2), 42 Stat. 227 (permitting “a husband and wife living together” to file a joint tax return; cf. I.R.C. § 6013(a) (“A husband and wife may make a single return jointly of income taxes”)); Veterans and Survivors Pension Interim Adjustment Act of 1975, Pub. L. No. 94-169, Title I, § 101(31), 89 Stat. 1013, codified at 38 U.S.C. § 101(31) (“The term ‘spouse’ means * * * a person of the opposite sex”); U.S. Dep’t of Labor, Final Rule, The Family And Medical Leave Act of 1993, 60 Fed. Reg. 2,180, 2,190-91 (Jan. 6, 1995) (rejecting, as inconsistent with congressional intent, proposed definition of “spouse” that would have included “same-sex relationships”); Adams v. Howerton, 486 F. Supp. 1119, 1123 (C.D. Cal. 1980) (“Congress, as a matter of federal law, did not intend that a person of one sex could be a ‘spouse’ to a person of the same sex for immigration law purposes.”), aff’d, 673 F.2d 1036 (9th Cir. 1982), cert. denied, 458 U.S. 1111 (1982); Dean v. District of Columbia, 653 A.2d 307, 314 (D.C. 1995) (Congress, in enacting the District of Columbia’s marriage statute of 1901, intended “that ‘marriage’ is limited to opposite-sex couples”).

5
2. The Justice Department’s About-Face and the House’s Intervention
After DOMA’s enactment, discharging the Executive’s constitutional duty to “take Care that the Laws be faithfully executed,” U.S. Const. art. II, § 3, the Department of Justice during the Bush Administration successfully defended DOMA against several constitutional challenges, prevailing in every case to reach final judgment.4 The Department continued to defend DOMA during the first two years of the current Administration.
In February 2011, however, the Administration abruptly announced its intent to refuse to defend DOMA’s constitutionality. Letter from Att’y Gen. Eric H. Holder, Jr., to the Hon. John A. Boehner, Speaker of the House (Feb. 23, 2011), http://www.justice.gov/opa/pr/2011/February/11-ag223.html. Attorney General Holder stated that he and President Obama were of the view “that a heightened standard [of review] should apply [to DOMA], that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3.” Id.
The Attorney General acknowledged that, in light of “the respect appropriately due to a coequal branch of government,” the Department “has a longstanding
4 See Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005); Smelt v. Cnty. of Orange, 374 F. Supp. 2d 861 (C.D. Cal. 2005), aff’d in part and vacated in part for lack of standing, 447 F.3d 673 (9th Cir. 2006), cert. denied, 549 U.S. 959 (2006); Hunt v. Ake, No. 04-cv-1852 (M.D. Fla. Jan. 20, 2005); Sullivan v. Bush, No. 04-cv-21118 (S.D. Fla. Mar. 16, 2005) (granting voluntary dismissal after the Department moved to dismiss); In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004).

6
practice of defending the constitutionality of dulyenacted statutes if reasonable arguments can be made in their defense.” Id. He did not, however, apply that standard to DOMA. On the contrary, he conceded that every Circuit to consider the issue (i.e., eleven Circuits) had held that sexual orientation classifications are subject only to rational basis review, and he acknowledged that “a reasonable argument for Section 3’s constitutionality may be proffered under [the rational basis] standard.” Id.
In order to prevent an Act of Congress from going undefended before the courts, the House sought and received leave to intervene as a party-defendant in the various DOMA cases nationwide, including in Gill and in this case.
3. History of This Case
a. Procedural History
Petitioner and Ms. Spyer obtained a marriage certificate in Ontario, Canada in 2007. At that time, New York did not issue marriage certificates to same-sex couples. See Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006). Petitioner and Ms. Spyer were domiciled in the State of New York at all relevant times. Ms. Spyer passed away in 2009, naming Petitioner the executor and sole beneficiary of her estate. After paying more than $363,000 in federal estate taxes, Petitioner, as executor, sought a refund of that amount on the theory that the estate was entitled to the marital deduction. Recognizing that federal law offers this deduction only when the beneficiary of the estate is a “spouse” within the meaning of federal tax law and DOMA, Petitioner

7
claimed that the failure to extend this favorable treatment to her violates the equal protection requirements of the Fifth Amendment. The IRS denied the refund, and Petitioner filed this suit in her capacity as executor of the estate. Her suit is premised on the notion that New York would have recognized the 2007 Canadian marriage certificate, even though New York did not issue marriage certificates to same-sex couples until after Ms. Spyer’s passing.
Petitioner’s suit was filed before the Department ceased defending DOMA, and the district court allowed the United States a period of four months to file a motion to dismiss. Order, Revised Scheduling Order, Windsor, No. 10-cv-8435 (S.D.N.Y. Dec. 3, 2010 & Jan. 28, 2011). Instead of filing such a motion, however, the Department ultimately notified the court that it would not defend DOMA’s constitutionality against equal-protection attack, and the House sought and was granted leave to intervene. Mem. & Order, Windsor (S.D.N.Y. June 2, 2011). The district court then entered an unusual scheduling order under which Petitioner would move for summary judgment before the House could move to dismiss the complaint. Revised Scheduling Order, Windsor (S.D.N.Y. May 11, 2011). Proceedings were delayed, however, by a prolonged dispute over the extent to which the court could consider scholarly publications, articles, or books in connection with Petitioner’s motion for summary judgment.5 The
5 See Mem. of Law in Supp. of Mot. to Strike, Windsor (S.D.N.Y. Aug. 10, 2011); Letters to the Court from Roberta A. Kaplan, dated Aug 11, 2011 (S.D.N.Y. ECF No. 120), Aug. 12, 2011 (two letters; ECF Nos. 119 & 120), Sept. 21, 2011 (ECF

8
district court ultimately denied Petitioner’s motion to strike these materials from the House’s briefing. Order, Windsor (S.D.N.Y. Aug. 29, 2011).
b. The District Court’s Decision
The dispositive motions were fully briefed and pending before the district court for nearly nine months before the district court’s decision. Ultimately, without hearing oral argument, the district court granted Petitioner’s motion for summary judgment and denied the House’s motion to dismiss. The district court first relied on decisions from New York’s lower courts to infer that New York would have recognized foreign same-sex marriages before New York itself allowed such marriages, even though New York’s highest court had expressly reserved the question. App. a5-a7. It found, therefore, that Petitioner had standing. Id. The district court then found this Court’s decision upholding traditional marriage laws in Baker v. Nelson, 409 U.S. 810 (1972), to be inapplicable. App. a7-a9. Turning to the question of the proper level of constitutional scrutiny for classifications based on sexual orientation—an issue that the Second Circuit has not yet addressed—the district court adopted a novel standard of constitutional review involving “intensified scrutiny,” a level of scrutiny between
No. 112), and Sept. 23, 2011 (ECF No. 115); Letters to Court from H. Christopher Bartolomucci, dated Aug. 11, 2011 (ECF No. 117), Aug. 12, 2011 (ECF No. 116), and Sept. 23, 2011 (ECF No. 111); House’s Mem. of Law in Supp. of Mot. for Leave to File Sur-Reply, Windsor (S.D.N.Y. Sept. 2, 2011); Mem. in Supp. of Renewed Mot. for Leave to File Sur-Reply, id. (S.D.N.Y. Sept. 20, 2011). The district court ordered that substantial portions of these matters be litigated by letter brief.

9
ordinary rational-basis and intermediate scrutiny. App. a12-a13. The district court based this hybrid level of review on the First Circuit’s decision in Gill, which had issued six days earlier.
The district court then considered the government interests that the House advanced to support DOMA’s constitutionality. The court acknowledged that several of these interests—such as preserving the traditional institution of marriage and promoting responsible childrearing—are weighty enough to justify DOMA, but concluded that DOMA does not adequately further any of these interests. App. a14-a16, a17-a18. By contrast, the district court recognized that DOMA is sufficiently related to a government interest in ensuring the uniform nationwide distribution of federal benefits, but deemed this interest illegitimate because, in the district court’s view, the Constitution gives states and not Congress the prerogative to define “marriage” even for federal-law purposes. App. a18a20. The district court also held that conserving government resources is not a sufficient government interest to support DOMA without some further justification for how the savings are achieved. App. a20-a21.
c. Second Circuit Proceedings
The House expeditiously appealed the district court’s judgment on June 8, 2012, a full 59 days before its notice of appeal was due. Although the district court adopted the result advocated by the Department, the Department filed its own Notice of Appeal.

10
Three days later, on June 11, Petitioner filed a “motion to expedite appeal” in the Second Circuit, which proposed a highly expedited schedule and emphasized, inter alia, that the Second Circuit’s examination of whether heightened scrutiny should apply to sexual orientation classifications could have an impact on “courts in this Circuit and beyond.” Mem. of Law in Supp. of Mot. for Expedited Appeal at 1, 11, Windsor, Nos. 12-2335 & 12-2435 (2d Cir. June 11, 2012). The Second Circuit granted Petitioner’s motion while adopting the House’s alternative schedule for expedition, such that briefing will be complete by September 14, 2012. The Second Circuit has set oral argument for September 27, 2012, and denied the House’s motion to suspend oral argument in light of the instant Petition.
On July 16, nearly a month after the Second Circuit granted her expedition motion and 17 days after the House filed its own petition after judgment in Gill, Petitioner filed in this Court the instant Petition for certiorari before judgment.
4. Other Pending Petitions Involving DOMA Section 3
The question of DOMA’s constitutionality is also presented by five other petitions for certiorari pending before this Court. Three petitions arise out of the First Circuit’s decision and judgment in Gill. The others are petitions for certiorari before judgment following appeals of district court judgments striking down DOMA on equal protection grounds in Golinski v. OPM, 781 F. Supp. 2d 967 (N.D. Cal. 2012), and Pedersen v. OPM, No. 10-cv1750, 2012 WL 3113883 (D. Conn. July 31, 2012).

11
The House filed a petition for a writ of certiorari in the First Circuit case on June 29, 2012. See Pet. for Cert., No. 12-13, Bipartisan Legal Advisory Group of the U.S. House of Representatives v. Gill. A few days later, the Department filed its own petition in that case, No. 12-15 (July 3, 2012), along with a petition for certiorari before judgment in Golinski, No. 12-16 (July 3, 2012), despite having its bottom-line position on DOMA adopted by the courts in both cases. On July 20 Massachusetts filed a conditional crosspetition for certiorari in the First Circuit case, No. 12-97, and both Massachusetts and the individual Gill plaintiffs support this Court’s review in Gill. Resp. of the Commonwealth of Mass. in Supp. of Cert., Nos. 12-13 & 12-15 (July 20, 2012); Br. in Resp. of Nancy Gill et al., Nos. 12-13 & 12-15 (Aug. 2, 2012). On August 21, a petition for certiorari before judgment was filed by the private plaintiffs in Pedersen v. OPM, No. 12-231.
REASONS FOR DENYING THE WRIT
A grant of certiorari before judgment in the Court of Appeals “is an extremely rare occurrence.” Coleman v. Paccar, Inc., 424 U.S. 1301, 1304 n.* (1976) (Rehnquist, J., in chambers). This Court’s Rule 11 provides that such a writ “will be granted only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.”
This case does not remotely satisfy that standard. Although the issue of DOMA’s constitutionality is indeed a matter of great importance, particularly given the confrontation between the Legislative and Executive Branches engendered by the Department’s

12
actions in this litigation, that issue has already been brought before this Court by “normal appellate practice”—in the form of the House’s petition after decision and judgment in Gill, a case in which the House, Department, Massachusetts, and the individual plaintiffs all agree that certiorari is appropriate. There thus is nothing to be gained from granting certiorari before judgment in this case.
Instead, granting the writ would result only in unnecessary multiplication and confusion of the issues. Indeed, not only is there no justification for taking the extraordinary step of granting certiorari before judgment when the exact same issue is squarely presented in an earlier-filed petition for certiorari after judgment, but this case features a unique vehicle problem, not present in Gill. In order to determine whether Petitioner even has standing to pursue her claims, this Court would be forced to answer a sensitive question of New York law— whether New York would have recognized foreign same-sex marriages while it forbade them to be entered into in-state—that the New York Court of Appeals thus far has expressly reserved. What is more, as explained more fully in the House’s opposition in No. 12-15, it is not clear that Petitioner, who prevailed in district court, even has appellate standing to petition. While appellate standing principles may apply differently in the certiorari before judgment context, the fact that Petitioner was the prevailing party would complicate the briefing and argument and is at least a prudential consideration counseling against certiorari.

13
The House’s Gill Petition is the overwhelmingly superior vehicle for review of DOMA’s constitutionality by this Court. The Court can avoid all of the side issues presented by this case and focus on the important question of DOMA’s constitutionality by granting the House’s Petition in No. 12-13, and denying the Petition in this case.
I. Gill Presents Exactly the Same Question Regarding DOMA’s Constitutionality.
The question presented by the Petition in this case regarding DOMA is identical to the House’s Question 1 in Gill. Compare Pet. i with Pet. No. 1213 i.6 In its Gill opinion, the First Circuit passed on exactly the same question as did the district court in this case: Whether DOMA is compatible with the Fifth Amendment’s implicit guarantee of equal protection. Likewise, the sub-issues addressed by the two courts were the same: Both cases focused on the proper level of constitutional scrutiny to apply— indeed, the district court below expressly adopted the First Circuit’s approach, App. a12-a13—and the government interests supporting DOMA considered by the two courts were virtually identical. Thus, there is no aspect of the issues that would be presented in this case as to DOMA’s constitutionality that the Court could not address as easily (or more easily) in Gill instead.
Petitioner does not really appear to suggest otherwise. She observes that New York has the largest population of the states that currently permit same-sex marriages. Pet. 15. But New York did not
6 The Department’s Petition in Gill also presents that same question. See Pet. No. 12-15 (I).

14
permit same-sex marriages until after Ms. Spyer’s passing, and this Court will resolve the impact of same-sex marriages in New York, and in every other State that allows them, on federal benefits whether it addresses DOMA’s constitutionality in Gill or in this case. Thus, while Petitioner’s concern about geographical uniformity in the availability of federal marital benefits for same-sex couples (Pet. 17) illustrates the rationality of Congress’ decision to enact a uniform federal rule on this subject,7 as well as the need for the Court to decide the issue of DOMA’s constitutionality, it does not at all suggest that it is necessary or even desirable to do so in this case, as opposed to Gill.
Petitioner’s suggestion that the district court’s ruling requires the federal government to recognize all “marriages of same-sex couples that are performed in or recognized by * * * New York,” Pet. 17, is incorrect. The federal government does not necessarily acquiesce even in the face of a precedential circuit court opinion, and it clearly has no obligation to do so in the wake of a nonprecedential district court opinion. “[S]tare decisis does not compel one district court judge to follow the decision of another.” ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 547 F.3d 109, 112 n.4 (2d Cir. 2008) (quotation marks omitted). “District [c]ourt
7 Congress expressly relied on its concern for uniformity in enacting DOMA. See, e.g., 142 Cong. Rec. S4870 (daily ed. May 8, 1996) (Sen. Nickles) (DOMA “will eliminate legal uncertainty concerning Federal benefits”); id. S10121 (daily ed. Sept. 10, 1996) (Sen. Ashcroft) (finding it “very important” to prevent “people in different States [from having] different eligibility to receive Federal benefits”).

15
decisions do not * * * even establish ‘the law of the district,’” let alone govern the entire state in which they are rendered. In re Executive Office of President, 215 F.3d 20, 24 (D.C. Cir. 2000) (citation omitted). In any event, the Gill petition presents an ideal vehicle for this Court to settle DOMA’s constitutionality for the entire country, including New York.
Petitioner also confusingly asserts that the district court’s supposed application of “standard rationality review” to DOMA would permit “this Court [to] affirm the decision below without reaching the question of whether a more stringent standard of review should apply” to sexual orientation classifications. Pet. 20. Even if Petitioner were correct that the district court applied standard rational-basis scrutiny and was somehow unique in doing so—which she is not—she offers no real explanation for why that would make this case a better candidate than Gill for this Court’s review. The Gill District Court did, in fact, strike down DOMA applying rational basis review, 699 F. Supp. 2d 374, 387 (D. Mass. 2010), and the plaintiffs in Gill have argued—and presumably will argue—that this Court can invalidate DOMA under rational basis without definitively resolving the appropriate level of scrutiny. In all events, Petitioner is doubly wrong in suggesting that the district court’s decision applied “standard rationality review,” or is somehow unique in having done so. First, the district court here does not appear to have applied “standard rationality review” at all. Instead, it found a need for “intensified scrutiny of purported justifications where minorities are subject to discrepant

16
treatment” and a requirement that, “in areas where state regulation has traditionally governed, * * * the federal government interest in intervention [must] be shown with special clarity.” App. a13 (quoting Massachusetts, 682 F.3d at 10). The court expressly stated that these factors “affect[] the nature of the rational basis analysis required here.” App. a12. Second, Petitioner cannot claim any uniqueness for the district court’s purported application of “standard rationality review.” The First Circuit expressly applied standard rational basis review to DOMA and observed that DOMA would pass scrutiny under that standard, Massachusetts, 682 F.3d at 9, before ultimately invalidating the statute under its novel “intensified scrutiny,” id. at 10 (which appears to be what the district court here in fact applied). And the district court in Golinski found DOMA unconstitutional under both rational basis and heightened scrutiny. 824 F. Supp. 2d 968, 995-1002 (N.D. Cal. 2012). In all events, this parsing of the district court’s holding is really beside the point when this Court has the benefit of the First Circuit’s considered opinion in Gill.
Nor is this a situation in which the Court might wish to grant certiorari before judgment in a case similar to one that has come before it in the ordinary course, in order to articulate how the rule of law it announces will apply to different factual and legal contexts. DOMA’s constitutionality is a straight upor-down proposition that will not vary by context: No party or court has yet contended or concluded that DOMA might be constitutional only in some situations or only as applied to some plaintiffs. Indeed, plaintiffs typically suggest that DOMA’s

17
across-the-board nature and lack of contextspecificity are part and parcel of its constitutional difficulty. See, e.g., Br. of Pls.-Appellees Nancy Gill, et al. 8-12, Massachusetts, Nos. 10-2204, 10-2207, & 10-2214 (1st Cir. Oct. 28, 2011). For this reason, the cases cited by Petitioner involving grants of certiorari before judgment to consider varying aspects of a single constitutional question, see Pet. 21, are inapposite here.8
8 Citing United States v. Booker, 543 U.S. 220 (2005) (reviewing varying applications of the Federal Sentencing Guidelines together with United States v. Fanfan); Gratz v. Bollinger, 539 U.S. 244 (2003) (reviewing various university affirmative-action policies together with Grutter v. Bollinger, 539 U.S. 306 (2003)). Petitioner also cites Taylor v. McElroy, 360 U.S. 709, 710 (1959), a case that this Court ultimately dismissed as moot, but which presented a due process issue regarding confrontation of witnesses in a context where the truth of the witnesses’ testimony was at issue in a way not presented by the companion case of Greene v. McElroy, 360 U.S. 474 (1959). See Pet. for Cert. at 12-14, Taylor, No. 504 (Nov. 8, 1958). Moreover, Taylor was in the Court of Appeals for the District of Columbia Circuit, which had also decided Greene on the basis that the denial of security clearances—at issue in both cases—was not justiciable. See 254 F.2d 944, 953 (D.C. Cir. 1958).
This also is not a situation in which the case coming before this Court after the ordinary appellate process involves a question of mootness that could be avoided by granting certiorari before judgment in another case presenting the same substantive question, as was true in the other case cited by Petitioner, Porter v. Dicken, 328 U.S. 252, 254 (1946) (considering whether the district courts could entertain actions by the federal Price Administrator seeking injunctions against state-court eviction proceedings, along with Porter v. Lee, 328 U.S. 246 (1946); the Court of Appeals had dismissed Lee as moot because the eviction had already occurred, while in

18
In short, there is no good reason for this Court to take the extraordinary step of granting certiorari before judgment when the exact same issue is before the Court—and better presented—in the House’s Petition seeking review of the decision and judgment of the First Circuit in Gill.
II. Petitioner’s Article III Standing Turns on a Question of State Law That Has Been Expressly Reserved by the New York Court of Appeals, and Presents a Vehicle Problem Unique to This Case.
“This Court, of course, does not sit to determine matters of state law * * * .” Dixon v. Duffy, 344 U.S. 143, 144 (1952). And Gill, like many DOMA cases, presents no questions of state law. Petitioner contends that here, too, DOMA’s constitutionality “was the sole issue before the court below” and that “[t]here is no dispute as to the impact of DOMA.” Pet. 18. But that is not so.
Petitioner presents the question of whether DOMA Section 3 denies equal protection to “same-sex couples who are lawfully married under the laws of their states (such as New York).” Pet. i, Question Presented. To have standing to assert this claim, she obviously must demonstrate that she was “lawfully married” to another woman “under the law[] of their state[].” But that is a state law question, the answer to which is far from clear.
New York has permitted same-sex marriages only since mid-2011. See Thomas Kaplan, After Long
Dicken the eviction had been enjoined pending the federal litigation).

19

Wait, Gay Couples Marry in New York, N.Y. Times

(July 23, 2011) http://www.nytimes.com/2011/07/

24/nyregion/across-new-york-hundreds-of-gay-

couples-to-marry-on-sunday.html.

Petitioner

obtained her marriage certificate with Ms. Spyer in

Ontario long before marriage certificates were

available to same-sex couples in New York. See id.;

Pet. 5. Ms. Spyer passed away on February 5, 2009,

again long before New York issued same-sex

marriage certificates of its own. Pet. 5. As the

district court recognized, see App. a6, Petitioner’s

standing thus depends on whether New York law

would have recognized her Ontario marriage before

the time that New York began to permit same-sex

marriages in-state. See also Smelt v. Cnty. of

Orange, 447 F.3d 673 (9th Cir. 2006) (unmarried

same-sex couple lacked standing to challenge

DOMA), cert. denied, 549 U.S. 959 (2006). If the

Windsor-Spyer same-sex foreign marriage certificate

was not valid under New York law, then the premise

for Petitioner’s claim fails because she can trace no

injury to DOMA, and DOMA’s invalidation would

provide no redress. See Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560-561 (1992).9

9 Even if an unmarried same-sex couple somehow might have standing to challenge DOMA, that would not change the reality that Petitioner’s challenge to DOMA was premised on the notion that it violates equal protection principles for the federal government not to recognize a marriage that is valid under state law. Thus, the uncertainty over the validity of a foreign marriage certificate obtained while New York itself did not allow same-sex marriages creates a serious vehicle problem whether or not it is critical to Petitioner’s standing.

20
It cannot be seriously disputed that for most of New York’s history a foreign marriage between two persons of the same sex would not have been recognized under state law. The New York Court of Appeals has not resolved the question of whether foreign, same-sex marriage certificates were valid under New York law in 2009, when Ms. Spyer died. Just three years earlier, in rejecting an effort to compel New York to recognize same-sex marriage generally, the court held that the “New York Constitution does not compel recognition of marriages between members of the same sex.” Hernandez v. Robles, 855 N.E.2d 1, 5 (N.Y. 2006). Then, in 2009, the year of Ms. Spyer’s passing, it expressly reserved the question whether New York law recognizes foreign, same-sex marriage certificates. Godfrey v. Spano, 920 N.E.2d 328, 337 (N.Y. 2009) (declining to decide whether “New York’s common-law marriage recognition rule is a proper basis for the challenged recognition of out-of-state same-sex marriages,” and instead resting its decision on its conclusion that the statutory benefits in question were not limited to spouses).
Thus, even establishing federal jurisdiction in this case required the district court to consider the sensitive state-law question of whether Petitioner’s and Ms. Spyer’s Canadian marriage certificate would have been recognized under New York law at the time relevant for this case. See App. a6-a7. Because Petitioner’s standing turns on the answer to this question, the House has requested that the Second Circuit certify it to the New York Court of Appeals. See Br. for Def.-Appellant at 13-14, 17-19, Windsor, Nos. 12-2335 & 12-2435 (2d Cir. Aug. 16, 2012). The

21
district court did not have the option to do so. Penguin Grp. (USA) Inc. v. Am. Buddha, 640 F.3d 497, 499 n.4 (2d Cir. 2011) (“The district court does not have statutory authority to ask the New York Court of Appeals for its views on unsettled and important issues of New York law. We do.”). The inability of the district court to certify this question to the New York Court of Appeals is one reason why this is a particularly bad context in which to skip review by the first court with the power to certify such questions.
If this Court were to grant certiorari before judgment, it would need either to certify the question itself or determine for itself whether foreign same-sex marriages were recognized under New York law as of February 5, 2009, at the latest.10 It would obviously make no sense to grant certiorari before judgment only to certify a question to the New York Court of Appeals, especially when the extraordinary step of granting certiorari before judgment would bypass the first court in the federal system with the authority to certify a question to the New York Court of Appeals. But it makes even less sense to take the extraordinary step of granting certiorari before judgment to confront a vehicle problem unique to this case. Petitioner is asking this Court to establish her standing by deciding a question of New York law that New York has yet to determine for itself. What is more, it is a question of
10 Indeed even the relevant date for purposes of determining whether New York would recognize the foreign marriage certificate—either the date of the certificate or the date of Ms. Spyer’s passing—is itself a question of state law that is not free from doubt.

22
great political sensitivity regarding New York’s “prescri[ption of] the conditions upon which the marriage relationship between its own citizens shall be created,” which this Court has always recognized as going to the heart of state authority. Pennoyer v. Neff, 95 U.S. 714, 735 (1877); see also, e.g., Sosna v. Iowa, 419 U.S. 393, 404 (1975). The district court relied on a handful of decisions from the lower New York courts, as well as the opinions of New York’s executive branch, to infer that foreign same-sex marriage recognition must have begun in New York before February 2009. App. a6-a7. Petitioner echoes this approach. Pet. 5 n.3, 11 n.7. But this Court has made clear that while the decisions of lower state courts on questions of state law should be considered, they are “not controlling” on federal courts “where the highest court of the State has not spoken on the point.” Comm’r v. Bosch’s Estate, 387 U.S. 456, 465 (1967). That is particularly true in this case, where most of the materials relied upon by the district court and Petitioner were in existence at the time the New York Court of Appeals reserved this question in Godfrey—indeed, many were cited in that opinion, e.g., 920 N.E.2d at 331 & n.3, 337.11
11 In cases where the construction of state law goes to a nonjurisdictional question, this Court has avoided questions of state law by “accept[ing] the interpretation of state law in which the District Court and the Court of Appeals have concurred.” Bishop v. Wood, 426 U.S. 341, 346 (1976); see also Haring v. Prosise, 462 U.S. 306, 314 n.8 (1983) (“It is our practice to accept a reasonable construction of state law by the Court of Appeals”). But here, of course, granting the Petition would mean that the Court of Appeals would never have the chance to consider the state law question. In any event, there would seem to be serious doubt whether this Court could

23
As if that were not enough, the nature of the inquiry that would be required under New York law would be a difficult one for any federal court and would distract the Court and the parties from the central issues concerning DOMA’s constitutionality. As the cases from the lower New York courts demonstrate, determining whether New York law recognized a foreign marriage that could not lawfully have been contracted within the state requires an inquiry into whether New York public policy seriously disapproved of the kind of relationship in question. See, e.g., Lewis v. N.Y. State Dep’t of Civ. Serv., 60 A.D.3d 216, 219-222 (N.Y. App. Div. 2009); Martinez v. Cnty. of Monroe, 50 A.D.3d 189, 191-193 (N.Y. App. Div. 2008).12 This inquiry plainly is very different in its nature, scope, and focus from the question of DOMA’s constitutionality.
Fortunately, there is no need whatsoever for this Court to embroil itself in this sensitive question of state law: Granting the House’s petition in Gill would present the same question regarding DOMA’s constitutionality without any of the vehicle problems unique to this case.
similarly decline to inquire into the correctness of the decision on the state-law issue below where, as here, the very existence of federal jurisdiction turns on the outcome.
12 In addition, the question in this case would be not what New York public policy is now, but rather what it was in either 2007 or in early February 2009—which only highlights the fact that this issue is one of concern for the New York Court of Appeals, not this Court.

24
III. This Case Was Not “Fully Ventilated” Below.
Petitioner asserts that the “full ventilation of the legal arguments regarding the constitutionality of DOMA in the courts below” leaves this Court “no reason * * * to delay its review” in this case. Pet. 20. That is wrong for several reasons. First, the issues below have hardly been fully ventilated when granting certiorari before judgment would bypass the first federal court with an opportunity to certify the antecedent state-law question to the New York Court of Appeals. Second, far from being fully ventilated, the decision below was the product of an unusual briefing sequence and was issued without the benefit of oral argument. Finally, the lower court decided the case based on a novel level of scrutiny that was not addressed in the briefing. Thus, this case is a particularly poor candidate for certiorari before judgment.
Moreover, this “full ventilation” soon may be available. The Second Circuit is moving full speed ahead on an expedited schedule, with argument set for September 27—at Petitioner’s request. Notwithstanding the pendency of this Petition and the House’s corresponding request to postpone argument in the Second Circuit in light of it, Petitioner has insisted on pursuing her case before the Second Circuit at the same time. Indeed, she has noted in that court that she “want[s] a decision from the Second Circuit”—belying her claim that she believes the issue of DOMA Section 3’s constitutionality has received full review by the lower courts. See Opp. to Mot. to Suspend Oral Arg. 10 n.5, Windsor, Nos. 12-2335 & 12-2435 (2d Cir.

25
Aug. 20, 2012). And the Second Circuit has granted her request to proceed with argument. Order, Windsor (2d Cir. Aug. 23, 2012).
IV. Certiorari in This Case Would Expedite Neither This Court’s Review of DOMA Nor the Resolution of Petitioner’s Claims.
Finally, Petitioner’s counsel stress Petitioner’s ill health as a reason for proceeding expeditiously, see Pet. 21, as they also did in the Second Circuit and the district court. See Mem. in Supp. of Mot. to Expedite Appeal at 1, 3, 5, 8, 11, 12, Windsor (2d Cir. June 11, 2012); Letters to Court from Roberta A. Kaplan dated Nov. 22, 2010, Dec. 8, 2011, Mar. 7, 2012, and May 28, 2012, Windsor, No. 10-8435 (S.D.N.Y. ECF Nos. 110, 102 & 101). What they fail to note is that, given the concurrent pendency of the Gill petition, granting certiorari before judgment in this case instead of, or in addition to, Gill would not speed its resolution at all. Petitioner’s claim against DOMA is identical to that presented in Gill. See supra Pt. I. Thus, if she has standing to pursue it, Petitioner’s claim will be resolved by this Court’s review of Gill. As normal appellate practice has already been followed in Gill, there plainly is no need to bypass it in order to resolve this particular case outside of the normal process.
* * *
The House agrees with the Department and with Petitioner that this Court should review DOMA’s constitutionality. But there clearly is no need to circumvent normal appellate practice to do so— especially when this case presents unique vehicle problems which could only distract this Court from

26
the central issues concerning DOMA. DOMA’s constitutionality can be fully resolved by granting the House’s petition in Gill, and this Court should take that path rather than taking the extraordinary step of granting certiorari before judgment in this case.
CONCLUSION
For the foregoing reasons, the petition for a writ of certiorari before judgment should be denied. The House’s Petition for certiorari in No. 12-13 should be granted.

27
Respectfully submitted,
PAUL D. CLEMENT Counsel of Record
H. CHRISTOPHER BARTOLOMUCCI NICHOLAS J. NELSON BANCROFT PLLC 1919 M Street, N.W., Suite 470 Washington, D.C. 20036 (202) 234-0090 pclement@bancroftpllc.com
KERRY W. KIRCHER General Counsel
WILLIAM PITTARD Deputy General Counsel
CHRISTINE DAVENPORT Senior Assistant Counsel
TODD B. TATELMAN MARY BETH WALKER
Assistant Counsels OFFICE OF GENERAL COUNSEL U.S. HOUSE OF REPRESENTATIVES 219 Cannon House Office Bldg. Washington, D.C. 20515 (202) 225-9700
Counsel for Respondent The Bipartisan Legal Advisory Group of the United States House of Representatives
August 31, 2012

 
 No. 12-63
IN THE
~uprtmt ((ourt of tbt Wntttb ~tatt5

EDITH SCHLAIN WINDSOR, in her capacity as Executor of the estate of THEA CLARA SPYER,

Petitione~

v.

THE UNITED STATES OF AMERICA and
THE BIPARTISAN LEGAL ADVISORY GROUP OF THE UNITED STATES HOUSE OF REPRESENTATIVES,

Respondents,

On Petition For Writ Of Certiorari Before Judgment To The United States Court Of Appeals For The Second Circuit

REPLY IN SUPPORT OF PETITION FOR WRIT OF

CERTIORARI BEFORE JUDGMENT

ROBERTA A. KAPLAN Counsel ofRecord
ANDREW J. EHRLICH

PAMELA S. KARLAN
JEFFREY L. FISHER STANFORD LAw SCHOOL

JAREN JANGHORBANI

SUPREME

PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP
1285 Avenue of the Americas New York, NY 10019-6064 (212) 373-3000 rkaplan@paulweiss.com

COURT LITIGATION CLINIC 559 Nathan Abbott Way Stanford, CA 94305

STEVEN R. SHAPIRO JAMES D. ESSEKS ROSE A. SAXE
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION 125 Broad Street New York, NY 10004

ARTHUR EISENBERG MELISSA GOODMAN MARIKO HIROSE NEW YORK CIVIL LIBERTIES UNION
FOUNDATION 125 Broad Street New York, NY 10004

TABLE OF CONTENTS
Table of Authorities...................................................... ii I. The Petitions Filed in All the DOMA
Cases Should be Considered Together and This Petition Should Be Granted....................... 2 II. Ms. Windsor Has Standing to Challenge DOMA ................................................................. 4 III. As the Prevailing Party in a District Court Judgment Currently Before the Court of Appeals, Ms. Windsor Has Standing to Seek Certiorari Before Judgment ...................... 7 IV. Ms. Windsor's Health Continues to Militate for Expeditious Resolution ................. 10 Conclusion ................................................................... 11
1

TABLE OF AUTHORITIES

CASES

Page(s)

Camreta v. Greene, 131 S. Ct. 2020 (2011) .......................................... 7, 9

Deposit Guar. Nat'} Bankv. Roper, 445 U.S. 326 (1980) ................................................ 10

Dickerson v. Thompson, 73 A.D.3d 52 (3d Dep't 2010) ...................................5

In re Estate ofRanftle, 81 A.D.3d 566 (1st Dep't 2011)................................5

Forneyv. Apfel, 524 U.S. 266 (1998) ................................................ 10

LN8. v. Chadha,
462 U.S. 919 (1983) ..................................................9

Office ofPersonnel Management v. Golinski, No. 12-16 .......................................................... 1, 2, 3

Hernandezv. Robles, 7 N.Y.3d 338 (2006) .................................................6

J.E.B. v. Alabama ex reI. T.B., 511 U.S. 127 (1994) ................................................ 10

Lewis v. NY. State Dep't of Civil Serv., 60 A.D.3d 216 (3d Dep't 2009) .................................5

11

Page(s)
Martinezv. Cnty. ofMonroe, 50 A.D.3d 189 (4th Dep't 2008) ........................... 5, 6
Mistretta v. United States, 488 U.S. 361 (1989) ..................................................8
Nguyen v. I.NB., 533 U.S. 53 (2001) .................................................. 10
Rosenbergv. MetLife, Inc., 453 F.3d 122 (2d Cir. 2006) ..................................... 7
State Farm Mut. Auto Ins. Co. v. Mallela, 372 F.3d 500 (2d Cir. 2004) ..................................... 7
United Statesv. Nixon, 418 U.S. 683 (1974) ..................................................8
United Statesv. United Mine Workers, 330 U.S. 258 (194 7) .................................................. 8
United States Department ofHealth and Human Servicesv. Massachusetts, Nos. 12-13, 12-15, and 12-97 ............................... 1, 2
Wi"lson v. Girard, 354 U.S. 524 (1957) ..................................................8
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 937 (1952) ..................................................8
STATUTES
28 U.S.C. § 1254 ............................................................ 7
28 U.S.C. § 2414 .......................................................... 10
111

Page(s) N.Y. Dom. ReI. Law §10-a ............................................. 6 N.Y. Tax Law § 961 ..................................................... 10
OTHER AUTHORITIES Eugene Gressman et aI., Supreme Court
Practice (9th ed. 2007) ............................................. 7
IV

Petitioner Edith Windsor respectfully submits this reply to the briefs of respondents the United States and the Bipartisan Legal Advisory Group ("BLAG"), filed on August 31, 2012. Both the United States and BLAG are in agreement that the constitutionality of Section 3 of the Defense of Marriage Act ("DOMA") is squarely presented by this case and is an issue of exceptional importance that justifies the Court's immediate review.
The United States suggests that the Court should wait until it has considered the petitions in two other cases, United States Department ofHealth and Human Services v. Massachusetts, Nos. 12-13, 12-15, and 12-97 ("Massachusetts'), and Office of Personnel Management v. Golinski, No. 12-16 ("Golinski'). BLAG, on the other hand, argues that the only case in which the petition for certiorari should be granted is Massachusetts because, it contends, there should not be any grants of certiorari before judgment.
Although neither the United States nor BLAG seriously contest that petitioner has standing as the prevailing party in the District Court to seek certiorari before judgment, the United States has indicated its intent to file its own petition for certiorari in petitioner's case, which effectively renders the issue academic. BLAG further questions whether Ms. Windsor has standing to challenge DOMA's discriminatory effects due to purported uncertainty as to whether New York recognized her marriage as valid at the time of her late spouse's death. As explained below, however, there is no such uncertainty under New York law.
1

Whatever respondents' preferences, there can be no doubt that the Court would only benefit from having before it each of the various petitions for certiorari on DOMA, with the attendant ability to select its preferred vehicle(s). Petitioner respectfully submits that, for the reasons set forth below and in her petition, this case presents an excellent vehicle for consideration of this issue. The interests of judicial economy counsel in favor of the Court considering all of the related DOMA petitions simultaneously.
I. The Petitions Filed in All the nOMA Cases Should be Considered Together and This Petition Should Be Granted
The United States has now indicated that it intends to file a petition in Petitioner's case, but it suggests that the Court should consider and dispose of the petitions filed in two other DOMA cases (Massach usetts and GolinskI) first in order to determine if either is an appropriate vehicle before considering any petitions in this case or in another case currently before the Second Circuit, Pedersen v. Office of Personnel Management, No. 12-231 ("Pedersen'). Such an approach would not only be inefficient, but would deny the Court, should it decide to grant certiorari on this important issue, the benefit of its choice of the available vehicles. Lower courts in each of the four cases have held that Section 3 of DOMA is unconstitutional, and the Court's decisionmaking process can only benefit from having all four cases before it at the same time when deciding in which case or cases to grant review.
The United States contends that Golinski may be a better vehicle for review because the district
2

court in Golinski applied heightened scrutiny after determining that it applied to discrimination based on sexual orientation. U.S. Br. at 14. However, Ms. Windsor also fully briefed and argued before the District Court that heightened scrutiny is the correct standard, an argument she would continue to advance before this Court. Indeed, the expert evidence on the issue of whether heightened scrutiny should be applied presented by petitioner is virtually identical to that presented in Golinski.! The fact that Ms. Windsor prevailed on a rational basis standard below clearly would not bar this Court from considering the question of what level of scrutiny should apply to sexual orientation discrimination.
Moreover, the District Court did not, as the United States suggests, "assume[] without deciding that laws that draw distinctions on the basis of sexual orientation are subject to rational basis review." U.S. Br. at 7. To the contrary, it made clear that, rather than decide that issue, it would instead apply the rational basis standard, stating that "the constitutional question presented here may be disposed of under a rational basis review, it need not decide ... whether homosexuals are a suspect class." Pet. App. at a12.2
1 Pursuant to a stipulation between counsel for BLAG and counsel for the plaintiffs in Golinski and Pedersen, the expert witness depositions that were conducted in Windsor were later used by the parties in Golinski and in Pedersen and were the only depositions taken on this issue. 2 Contrary to BLAG's suggestion, it is inaccurate to describe the District Court's review as exceeding traditional rational basis. See BLAG Br. at 15-16. The District Court explicitly stated that "[r]egardless whether a more 'searching' form of rational basis
3

Like the United States, ELAG concedes that

this case presents an issue of constitutional

importance, but asserts that BLAG v. Gill, No. 12-13

is a superior vehicle for the Court's resolution of

DOMA's constitutionality.

As noted above,

Ms. Windsor maintains that her case presents an

excellent vehicle. The record in petitioner's case

squarely and cleanly presents one and only one issue:

whether Section 3 of DOMA violates equal protection.

Petitioner's case concerns probably the most

economically consequential example of how DOMA

harms married same-sex couples. There is no dispute

that if Ms. Windsor had inherited the estate of her

husband, she would not have had to pay a penny of

estate tax, rather than $363,000. And, as described

below, neither of the standing-related objections

should postpone or foreclose the consideration or

granting of Ms. Windsor's petition.

II. Ms. Windsor Has Standing to Challenge DOMA

BLAG opposes Ms. Windsor's petition because it claims that it is unclear whether New York considered her Canadian marriage to be valid. However, as the District Court found, this purported concern is without basis.

There is no ambiguity or "sensitivity" about this issue of New York law. ELAG Br. at 22. Well before New York's passage of its recent marriage statute in 2011, every New York appellate court to have addressed the question-three out of the four

scrutiny is required," traditional rational basis scrutiny compelled the conclusion that DOMA was unconstitutional. Pet. App. at a13.

4

New York intermediate appellate courts (including the First Department, where Ms. Windsor lives)-had concluded that New York recognizes out-of-state marriages of same-sex couples. See In re Estate of Ranftle, 81 A.D.3d 566 (1st Dep't 2011) (2008 Canadian marriage); Martinez v. Cnty. ofMonroe, 50 A.D.3d 189 (4th Dep't 2008) (2004 Canadian marriage); see also Lewis v. NY. State Dep't of Civil Serv., 60 A.D.3d 216 (3d Dep't 2009), affd on other grounds sub nom. Godfrey v. Spano, 13 N.Y.3d 358 (2009). By the time of the death of Ms. Windsor's spouse in 2009, New York's Governor, Attorney General and Comptroller had all reached the same conclusion. See Godfrey, 13 N.y'3d at 368 n.3; Dickerson v. Thompson, 73 A.D.3d 52, 54-55 (3d Dep't 2010).
This is not surpnsmg. The question requires application of the centuries-old, black-letter rule of marriage recognition under New York common law, which provides that an out-of-state marriage, even if it could not be performed in New York, "must" nevertheless be recognized as valid in New York unless one of two exceptions applies: (1) the marriage violates an express statutory intent to void such a marriage, Lewis, 60 A.D.3d at 219, or (2) "an aspect of the out-of-state marriage is abhorrent to New York public policy." Id. (emphasis added).3 Applying this rule in other contexts, New York courts have recognized, among others, a marriage between an uncle and his half-niece, and of two individuals under the age of 18, neither of which could have been
3 BLAG is simply wrong in asserting that the relevant legal inquiry is whether New York "seriously disapproved" of gay and lesbian relationships. BLAG Br. at 23.
5

performed in New York. See Martinez, 50 A.D.3d at 191-92 (citing cases).
There is no reason to believe that the New York Court of Appeals would have reached a different result. While BLAG is correct that in Hernandez v. Robles, a plurality of the New York Court of Appeals held that there was no right under the New York Constitution to have marriages between same-sex couples performed in New York, it certainly said nothing even approaching the notion that such marriages were "abhorrent" to New York public policy. 7 N.y'3d 338, 366 (2006).4 It is simply not reasonable to conclude that the very same court that stated in Hernandez in 2006 that "[ih may well be that the time has come for the Legislature to address the needs of same-sex couples and their families, and to consider granting these individuals additional benefits through marriage" would have found samesex relationships to be "abhorrent" to New York public policy only a year later when Ms. Windsor and Ms. Spyer were married, or three years later when Ms. Spyer died. Id. at 379 (Graffeo, J., concurring).
That explicit invitation from the New York Court of Appeals was accepted by the New York legislature five years later when marriage for samesex couples became the law in New York. See N.Y. Dom. ReI. Law §10-a. As a result, there is no reason
4 The Hernandez decision did not address whether New York recognized valid out-of-state marriages of same-sex couples. While the court began its opinion by stating that the "New York Constitution does not compel recognition of marriages between members of the same sex," id. at 356 (emphasis added), the remainder of the decision addresses only whether New York must allow such couples to marry under its constitution.
6

to believe that this issue would qualify for certification to the New York Court of Appeals, particularly since it is now unlikely to recur. See, e.g., Rosenberg v. MetLife, Inc., 453 F.3d 122, 125 (2d Cir. 2006) (in the absence of a New York Court of Appeals decision on an issue of state law, the Second Circuit looks "to the decisions of the Appellate Division of the New York Supreme Court"); State Farm Mut. Auto Ins. Co. v. Mallela, 372 F.3d 500, 505 (2d Cir. 2004) (certification appropriate where "question is likely to recur").
III. AB the Prevailing Party in a District Court Judgment Currently Before the Court of Appeals, Ms. Windsor Has Standing to Seek Certiorari Before Judgment
Edith Windsor also has standing to seek certiorari in this case, both as a statutory and as a constitutional matter. This Court may review cases "in the courts of appeals" upon a petition for certiorari before judgment by "any party to any civil or criminal case." 28 U.s.C. § 1254 (emphasis added). This statutory language plainly "covers petitions brought by litigants who have prevailed, as well as those who have lost, in the court below." Camreta v. Greene, 131 S. Ct. 2020, 2028 (2011) (citing Eugene Gressman et aI., Supreme Court Practice 87 (9th ed. 2007) (hereinafter "Gressman"». And because two appeals (one by BLAG and one by the United States) in Ms. Windsor's case were docketed in the Second Circuit and remain pending there, her case is "in the court[] of appeals," as required by 28 U.s.C. § 1254. See Gressman at 83-84.
The pendency of those appeals ensures that the constitutional standing requirements of Article III are
7

satisfied. There can be no dispute that a live case and controversy for constitutional purposes is currently pending in the Second Circuit; Ms. Windsor's petition effectively seeks to have that dispute moved here. It cannot be argued that the very same dispute between Ms. Windsor and BLAG and the United States is constitutionally justiciable in one forum, but not another.
Given the appeals currently being litigated against her, the fact that Ms. Windsor prevailed in the district court is of no moment in determining whether her petition for certiorari should be granted. This Court has granted petitions for certiorari before judgment filed by many such parties. See, e.g., Mistretta v. United States, 488 U.S. 361, 371 (1989) (granting petitions of both Mistretta and United States where district court ruled in favor of United States on constitutionality of federal sentencing guidelines); United Statesv. Nixon, 418 U.s. 683,68990 (1974) (granting petition of United States where district court denied President Nixon's motions regarding subpoena issued by United States); Wilson v. Girard, 354 U.S. 524, 526 (1957) (granting petitions of both Girard and Secretary of Defense Wilson where Girard's petition for writ of habeas corpus was denied by district court but court granted Girard declaratory relief and issued injunction on his behalf); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 937, 937 (1952) (per curiam) (granting petitions of both steel mill owners and the government to review district court's injunction against enforcement of steel seizure order); United States v. United Mine Workers, 330 U.S. 258, 269 (1947) (granting petition of United States where respondents' appeal of district court's
8

decision holding them in civil and criminal contempt for violating temporary restraining order was pending).5
Although BLAG directs the Court to its opposition to certiorari in Massachusetts, none of the cases that BLAG cites there concerns the standing of a party who seeks certiorari before judgment while an appeal is still pending against her in the court of appeals. See, e.g., Camreta, 131 S. Ct. at 2026 (discussing petition filed after court of appeals has ruled in petitioner's favor on qualified immunity grounds); LNB. v. Chadha, 462 U.S. 919, 930 (1983) (determining petitioner was "sufficiently aggrieved by the Court of Appeals decision").6
Similarly, while it is generally the case that litigants who have prevailed in the court of appeals have "'receive[d] all that [they] sought,'" Chadha, 462 U.S. at 930 (quoting Deposit Guar. Nat7 Bank v. Roper, 445 U.s. 326, 333 (1980», and effectively won a final victory, leaving them without the requisite Injury needed to pursue certiorari, that IS emphatically not the case for Ms. Windsor. Having prevailed only in the district court, Ms. Windsor's injuries remain acute and ongoing. Because the
5 While these cases do not directly address the rationale for why a party who prevailed in the district court has constitutional standing, they nonetheless make it clear that such standing exists. Indeed, several of the cases consider other questions of standing, and it is beyond credulity that the Court repeatedly overlooked a petitioner's lack of constitutional standing while discussing other material standing issues in the same opinion. 6 BLAG acknowledges, moreover, that "appellate standing principles may apply differently in the certiorari before judgment context." BLAG Br. at 12.
9

District Court's ruling is subject to an automatic stay, per 28 U.S.C. § 2414, Ms. Windsor has not yet received the more than $363,000 due to her as the executor of her spouse's estate under the District Court's judgment, and she cannot receive it until the Second Circuit or this Court enters a final judgment in her favor.
Even were the District Court's judgment to be fully enforced immediately-which it has not been and will not be-Ms. Windsor would still suffer collateral injury of the type that establishes constitutional standing. See, e.g., Forneyv. Apfel, 524 U.s. 266, 271 (1998) ("[A] party is 'aggrieved' and ordinarily can appeal a decision 'granting in part and denying in part the remedy requested.'" (quoting United States v. Jose, 519 U.S. 54, 56 (1996) (per curiam»); Roper, 445 U.s. at 334 ("[A]ppeal may be permitted from an adverse ruling collateral to the judgment on the merits at the behest of the party who has prevailed on the merits."). As explained in her petition, Ms. Windsor's marital status for federal purposes affects whether she will receive a refund of the New York state tax paid on Thea's estate. See N.Y. Tax Law § 961. Ms. Windsor also continues to suffer the dignitary harm of the federal government's refusal to recognize her marriage as equal to other legally valid marriages. See Nguyen v. LNB., 533 U.S. 53, 83 (2001); J.E.E. v. Alabama ex reI. T.E., 511 U.s. 127, 142 (1994).
IV. Ms. Windsor's Health Continues to Militate for Expeditious Resolution
Finally, Ms. Windsor's health remains tenuous. Last month, she suffered several fractured or broken
10

ribs, and she continues to be treated for a chronic heart condition. As noted above, the judgment in Ms. Windsor's favor remains stayed and Ms. Windsor has not yet been able to enjoy the fruits of her success in the District Court. Mter over 44 years with Ms. Speyer, federal recognition of their lawful marriage is in sight-Ms. Windsor has reached the proverbial mountaintop. But an expeditious resolution of her case is required if, at the age of 83, she is to see the final resolution of her case. While the case will continue without Ms. Windsor if necessary (a successor executor has been named for Ms. Spyer's estate), having waited a lifetime for such recognition, Ms. Windsor obviously would like to be present when it happens.
There can be no serious dispute that the constitutional issue presented is an important one and that Ms. Windsor's case is a strong vehicle for its resolution. The United States has indicated that it too will shortly petition for certiorari in this case. Ms. Windsor respectfully requests that the Court grant her petition, or if not hers, then that of the United States.
Conclusion
For the foregoing reasons and for the reasons set forth in Ms. Windsor's opening brief, the petition for a writ of certiorari before judgment should be granted.
11

Respectfully submitted,
ROBERTA A. KAPLAN
Counsel ofRecord
ANDREW J. EHRLICH JAREN JANGHORBANI PAUL, WEISS, RIFKIND,
WHARTON & GARRISON LLP 1285 Avenue of the Americas New York, NY 10019-6064 (212) 373-3000 rkaplan@paulweiss.com
PAMELA S. KARLAN JEFFREY L. FISHER STANFORD LAW SCHOOL
SUPREME COURT LITIGATION CLINIC
559 Nathan Abbott Way Stanford, CA 94305
STEVEN R. SHAPIRO JAMES D. ESSEKS
ROSEA. SAXE AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
125 Broad Street New York, NY 10004
ARTHUR EISENBERG MELISSA GOODMAN MARIKO HIROSE NEW YORK CIVIL LIBERTIES
UNION FOUNDATION
125 Broad Street New York, NY 10004
September 5,2012
12

 
 No. 12-307

In The
Supreme Court of the United States ________________
UNITED STATES OF AMERICA, Petitioner,
v. EDITH SCHLAIN WINDSOR
AND
BIPARTISAN LEGAL ADVISORY GROUP OF THE UNITED STATES HOUSE OF REPRESENTATIVES,
Respondents. ________________
On Writ of Certiorari to the United States Court of Appeals
for _th__e__S_e_c_o_n__d__C_i_r_cuit

BRIEF ON THE MERITS FOR RESPONDENT

THE BIPARTISAN LEGAL ADVISORY GROUP

OF THE U.S. HO_U__S_E___O_F__R__E__P_R_ ESENTATIVES

KERRY W. KIRCHER General Counsel

PAUL D. CLEMENT Counsel of Record

WILLIAM PITTARD

H. CHRISTOPHER BARTOLOMUCCI

Deputy General Counsel NICHOLAS J. NELSON CHRISTINE DAVENPORT MICHAEL H. MCGINLEY

Senior Assistant Counsel BANCROFT PLLC

TODD B. TATELMAN

1919 M Street, N.W.

MARY BETH WALKER

Suite 470

ELENI M. ROUMEL Assistant Counsels

Washington, D.C. 20036 (202) 234-0090

OFFICE OF GENERAL COUNSEL pclement@bancroftpllc.com

UNITED STATES HOUSE OF

REPRESENTATIVES

219 Cannon House Office Bldg.

Washington, D.C. 20515

(202) 225-9700 Counsel for Respondent

QUESTION PRESENTED
Whether Section 3 of the Defense of Marriage Act, 1 U.S.C. § 7, violates the equal protection component of the Due Process Clause of the Fifth Amendment.

ii
PARTIES TO THE PROCEEDING The Bipartisan Legal Advisory Group of the United States House of Representatives intervened as a defendant in the district court and was an appellant and appellee in the court of appeals.* Edith Schlain Windsor was the plaintiff in the district court and an appellee in the court of appeals. The United States of America was a defendant in the district court and an appellant and appellee in the court of appeals.
* The United States House of Representatives has articulated its institutional position in litigation matters through a fivemember bipartisan leadership group since at least the early 1980’s (although the formulation of the group’s name has changed somewhat over time). Since 1993, the House rules have formally acknowledged and referred to the Bipartisan Legal Advisory Group, as such, in connection with its function of providing direction to the Office of the General Counsel. See, e.g., Rule I.11, Rules of the House of Representatives, 103rd Cong. (1993); Rule II.8, Rules of the House of Representatives, 112th Cong. (2011). While the group seeks consensus whenever possible, it, like the institution it represents, functions on a majoritarian basis when consensus cannot be achieved. The Bipartisan Legal Advisory Group currently is comprised of the Honorable John A. Boehner, Speaker of the House, the Honorable Eric Cantor, Majority Leader, the Honorable Kevin McCarthy, Majority Whip, the Honorable Nancy Pelosi, Democratic Leader, and the Honorable Steny H. Hoyer, Democratic Whip. The Democratic Leader and the Democratic Whip have declined to support the position taken by the Group on the merits of DOMA Section 3’s constitutionality in this and other cases.

iii
TABLE OF CONTENTS QUESTION PRESENTED ......................................... i PARTIES TO THE PROCEEDING........................... ii
TABLE OF AUTHORITIES ..................................... vi OPINIONS BELOW................................................... 1
JURISDICTION ......................................................... 1 CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED ................................. 1 STATEMENT OF THE CASE ................................... 2
A. The Defense of Marriage Act ....................... 2 B. The Justice Department Stops
Defending DOMA and Starts Attacking It ................................................ 12 C. Ms. Windsor’s Challenge to DOMA........... 14
SUMMARY OF THE ARGUMENT......................... 19 ARGUMENT ............................................................ 22
I. Rational Basis Review Applies To DOMA. ............................................................... 24
II. Multiple Rational Bases Support DOMA And Its Decision To Retain The Traditional Definition Of Marriage For Federal-Law Purposes ...................................... 28
A. DOMA Rationally Preserves Each Sovereign’s Ability to Define Marriage for Itself at a Time When States Are Beginning to Experiment with the Traditional Definition ................. 30

iv
B. DOMA Ensures National Uniformity in Eligibility for Federal Benefits and Programs Based on Marital Status ............................................ 33
C. DOMA Preserves Past Legislative Judgments, Conserves Financial Resources, and Avoids Uncertain and Unpredictable Effects on the Federal Fisc................................................ 37
D. Congress Rationally Proceeded with Caution When Faced with the Unknown Consequences of an Unprecedented Redefinition of Marriage, a Foundational Social Institution, by a Minority of States........... 41
E. The Federal Government Could Rationally Retain the Traditional Definition for the Same Reasons States Can Rationally Retain that Definition.................................................... 43
1. Providing a Stable Structure to Raise Unintended and Unplanned Offspring........................... 44
2. Encouraging the Rearing of Children by Their Biological Parents ................................................. 47
3. Promoting Childrearing by Both a Mother and a Father......................... 48
III. The Longstanding List Of Suspect And Quasi-Suspect Classes Should Not Be Expanded To Include Sexual Orientation ........................................................ 49

v
A. Gays and Lesbians Are Far from Politically Powerless .................................. 51
B. Whether a Married Couple Is of the Opposite Sex Is Relevant to the Government’s Interests in Recognizing Marriage ................................ 54
C. Sexual Orientation Is Not an “Immutable” Characteristic....................... 54
D. The Histories of Discrimination Based on Race, Ethnicity, Sex, and Legitimacy Are Different ........................... 56
CONCLUSION ......................................................... 59
STATUTORY APPENDIX
U.S. Const. amend. V ........................................ 1a
Defense of Marriage Act, § 3, 1 U.S.C. § 7................................................. 2a
Defense of Marriage Act, § 2, 28 U.S.C. § 1738C ...................................... 3a

vi

TABLE OF AUTHORITIES

Cases

Page(s)

Adams v. Howerton, 486 F. Supp. 1119 (C.D. Cal. 1980) .............. 5, 38

Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982) ............................. 5

Armour v. City of Indianapolis, 132 S. Ct. 2073 (2012) ....................................... 29

Baehr v. Lewin, 852 P.2d 44 (Haw. 1993) ..................................... 2

Baker v. Nelson, 409 U.S. 810 (1972) ..................................... 16, 25

Ben-Shalom v. Marsh, 881 F.2d 454 (7th Cir. 1989) ................. 13, 51, 55

Bowen v. Owens, 476 U.S. 340 (1986) ........................................... 41

Bowers v. Hardwick, 478 U.S. 186 (1986) ........................................... 27

Citizens for Equal Prot. v. Bruning, 455 F.3d 859 (8th Cir. 2006) ................. 13, 46, 54

City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432 (1985) ....................................passim

City of Dallas v. Stanglin, 490 U.S. 19 (1989) ............................................. 29

Clark v. Jeter, 486 U.S. 456 (1988) ........................................... 25

Conaway v. Deane, 932 A.2d 571 (Md. 2007) ................................... 46

vii
Cook v. Gates, 528 F.3d 42 (1st Cir. 2008) ............................... 13
Dandridge v. Williams, 397 U.S. 471 (1970) ........................................... 41
Davis v. Prison Health Servs., 679 F.3d 433 (6th Cir. 2012) ............................. 13
Dean v. District of Columbia, 653 A.2d 307 (D.C. 1995) .................................... 5
FCC v. Beach Commc’ns, Inc., 508 U.S. 307 (1993) ..........................28, 29, 30, 49
Frontiero v. Richardson, 411 U.S. 677 (1973) ........................................... 56
Godfrey v. Spano, 920 N.E.2d 328 (N.Y. 2009) ........................ 14, 24
Helvering v. Davis, 301 U.S. 619 (1937) ........................................... 36
Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006) .............................. 2, 46
High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563 (9th Cir. 1990) ................. 13, 51, 55
Holloway v. Arthur Andersen & Co., 566 F.2d 659 (9th Cir. 1977) ............................. 56
Hunt v. Ake, No. 04-cv-1852 (M.D. Fla. Jan. 20, 2005) .................................. 12
In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004) .......... 12
Jimenez v. Weinberger, 417 U.S. 628 (1974) ........................................... 24

viii
Johnson v. Johnson, 385 F.3d 503 (5th Cir. 2004) ............................. 13
Johnson v. Robison, 415 U.S. 361 (1974) ........................................... 49
King v. Smith, 392 U.S. 309 (1968) ........................................... 45
Lawrence v. Texas, 539 U.S. 558 (2003) ............................... 27, 28, 57
Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356 (1973) ........................................... 29
Lofton v. Sec’y of Dep’t of Children & Family Servs., 358 F.3d 804 (11th Cir. 2004) ........................... 13
Lyng v. Castillo, 477 U.S. 635 (1986) ........................................... 50
Mandel v. Bradley, 432 U.S. 173 (1977) ........................................... 26
Marsh v. Chambers, 463 U.S. 783 (1983) ........................................... 42
Mass. Bd. of Ret. v. Murgia, 427 U.S. 307 (1976) ........................................... 50
Massachusetts v. U.S. Dep’t of HHS, 682 F.3d 1 (1st Cir. 2012) ..........................passim
Mathews v. Diaz, 426 U.S. 67 (1976) ............................................. 29
Murphy v. Ramsey, 114 U.S. 15 (1885) ............................................. 10
Nat’l Fed. Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012) ....................................... 43
New State Ice Co. v. Liebmann, 285 U.S. 262 (1932) ........................................... 42

ix
Nguyen v. INS, 533 U.S. 53 (2001) ............................................. 47
Padula v. Webster, 822 F.2d 97 (D.C. Cir. 1987) ............................. 13
Price-Cornelison v. Brooks, 524 F.3d 1103 (10th Cir. 2008) ......................... 13
Regan v. Time, Inc., 468 U.S. 641 (1984) ........................................... 23
Romer v. Evans, 517 U.S. 620 (1996) ..................................... 26, 27
Rostker v. Goldberg, 453 U.S. 57 (1981) ............................................. 23
San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973) ............................................... 50
Santosky v. Kramer, 455 U.S. 745 (1982) ........................................... 47
Schweiker v. Wilson, 450 U.S. 221 (1981) ........................................... 29
Smelt v. Cnty. of Orange, 374 F. Supp. 2d 861 (C.D. Cal. 2005) ............... 12
Smelt v. Cnty. of Orange, 447 F.3d 673 (9th Cir. 2006) ......................... 3, 12
Smelt v. Cnty. of Orange, 549 U.S. 959 (2006) ............................................. 3
Smith v. Org. of Foster Families for Equal. & Reform, 431 U.S. 816 (1977) ........................................... 47
Thomasson v. Perry, 80 F.3d 915 (4th Cir. 1996) ............................... 13
U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528 (1973) ..................................... 23, 24

x
U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995) ........................................... 37
United States v. Carolene Prods. Co., 304 U.S. 144 (1938) ........................................... 58
United States v. Five Gambling Devices, 346 U.S. 441 (1953) ........................................... 23
United States v. Turley, 352 U.S. 407 (1957) ........................................... 36
United States v. Virginia, 518 U.S. 515 (1996) ........................................... 48
Vance v. Bradley, 440 U.S. 93 (1979) ............................................. 28
Village of Belle Terre v. Boraas, 416 U.S. 1 (1974) ............................................... 30
Walters v. Nat’l Ass’n of Radiation Survivors, 473 U.S. 305 (1985) ........................................... 22
Washington v. Glucksberg, 521 U.S. 702 (1997) ........................................... 59
Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005)............. 12
Woodward v. United States, 871 F.2d 1068 (Fed. Cir. 1989) ................... 13, 55
Yarborough v. Yarborough, 290 U.S. 202 (1933) ........................................... 44
Zablocki v. Redhail, 434 U.S. 374 (1978) ........................................... 44
Constitutional Provision
U.S. Const. art. II, § 3 .............................................. 12

xi
Statutes & Regulations 5 U.S.C. § 8101 ........................................................... 5 5 U.S.C. § 8341(a)....................................................... 5 8 U.S.C. § 1186a(b)(1) ................................................ 5 22 U.S.C. § 4081 ......................................................... 3 26 U.S.C. § 2(b)(2) ...................................................... 5 26 U.S.C. § 6013(a)..................................................... 5 26 U.S.C. § 7703(b)..................................................... 5 38 U.S.C. § 101(31)..................................................... 5 42 U.S.C. § 416 ........................................................... 5 42 U.S.C. § 1382c(d)(2)............................................... 4 Don’t Ask Don’t Tell Repeal Act of 2010,
Pub. L. No. 111-321, 124 Stat. 3515, 10 U.S.C. § 654 note.......................................... 52 Revenue Act of 1921, § 223(b), 42 Stat. 227.............. 5 Presidential Mem., Extension of Benefits to Same-Sex Domestic Partners of Federal Employees, 75 Fed. Reg. 32,247 (June 2, 2010) ..................................................... 4 U.S. Dep’t of Labor, Final Rule, The Family and Medical Leave Act of 1993, 60 Fed. Reg. 2,180 (Jan. 6, 1995) ....................... 5 Other Authorities 142 Cong. Rec. 10468 (1996) (Sen. Nickles) ............ 34 142 Cong. Rec. 16969 (1996) (Rep. Canady) ............. 6 142 Cong. Rec. 17079 (1996) (Rep. Bryant) .............. 7 142 Cong. Rec. 17089 (1996) (Rep. Hyde) ................. 7 142 Cong. Rec. 17094 (1996)...................................... 2

xii
142 Cong. Rec. 22262 (1996) (Sen. Lieberman)............................................... 11
142 Cong. Rec. 22438 (1996) (Sen. Lott) ................... 7 142 Cong. Rec. 22440 (1996) (Sen. Nickles) .............. 7 142 Cong. Rec. 22443 (1996) (Sen. Gramm)........ 9, 39 142 Cong. Rec. 22446 (1996) (Sen. Byrd) ............ 6, 11 142 Cong. Rec. 22448 (1996) (Sen. Byrd) ............ 9, 39 142 Cong. Rec. 22452 (1996) (Sen. Mikulski) ........... 7 142 Cong. Rec. 22453 (1996) (Sen. Hatfield)............. 8 142 Cong. Rec. 22453 (1996)
(Sen. Murkowski) ................................................ 8 142 Cong. Rec. 22454 (1996) (Sen. Burns) .............. 10 142 Cong. Rec. 22459 (1996) (Sen. Ashcroft) ...... 8, 34 142 Cong. Rec. 22463 (1996) (Sen. Bradley) ........... 10 142 Cong. Rec. 22467 (1996)...................................... 2 Am. Psychological Ass’n, Answers to Your
Questions: For a Better Understanding of Sexual Orientation & Homosexuality, http://www.apa.org/topics/sexuality/ orientation.aspx/ ............................................... 56 Bara Vaida and Neil Munro, Interest Groups - Reversal of Fortunes, Nat’l J., Nov. 11, 2006....................................... 53

xiii
Charles Mahtesian, A Record Number of Gay Candidates, POLITICO.com (Oct. 2, 2012), http://www.politico.com/blogs/charliemahtesian/2012/10/a-record-number-ofgay-candidates-137289.html............................. 52
Cong. Budget Office, The Potential Budgetary Impact of Recognizing SameSex Marriages (2004), http://www.cbo.gov/sites/default/files/ cbofiles/ftpdocs/55xx/doc5559/06-21samesexmarriage.pdf ........................................ 40
Council on Families in America, Marriage in America: A Report to the Nation (1995) ........... 10
Dan Eggen, The Influence Industry: SameSex Marriage Issue Shows Importance of Gay Fundraisers, Wash. Post (May 9, 2012), http://www.washingtonpost.com/ politics/same-sex-marriage-debatemany-of-obamas-top-fundraisers-aregay/2012/05/09/gIQASJYSDU_story. html ................................................................... 53
Frank Newport, For First Time, Majority of Americans Favor Legal Gay Marriage, Gallup.com (May 20, 2011), http://www.gallup.com/poll/147662/firsttime-majority-americans-favor-legalgay-marriage.aspx............................................. 51
George Chauncey, Why Marriage?: The History Shaping Today’s Debate Over Gay Equality (2004) ................................. 57
H.R. Rep. No. 104-664 (1996), reprinted in 1996 U.S.C.C.A.N. 2905.............................passim

xiv
Human Rights Campaign Lauds 2008 Election Results, HRC.org (Nov. 4, 2008), http://www.hrc.org/pressreleases/entry/human-rights-campaignlauds-2008-election-results............................... 53
Kristin Anderson Moore et al., Marriage from a Child’s Perspective: How Does Family Structure Affect Children and What Can We Do About It?, Child Trends Research Brief (2002), http://www.childtrends.org/files/ marriagerb602.pdf ............................................ 48
Letter from Andrew Fois, Asst. Att’y Gen., to Rep. Canady (May 29, 1996), reprinted in H.R. Rep. No. 104-664 (1996), reprinted in 1996 U.S.C.C.A.N. 2905 ............... 11
Letter from Andrew Fois, Asst. Att’y Gen., to Rep. Hyde (May 14, 1996), reprinted in H.R. Rep. No. 104-664 (1996), reprinted in 1996 U.S.C.C.A.N. 2905 ............................... 11
Letter from Andrew Fois, Asst. Att’y Gen., to Sen. Hatch (July 9, 1996), reprinted in The Defense of Marriage Act: Hearing on S. 1740 Before the S. Comm. on the Judiciary, 104th Cong. (1996) .......................... 11
Letter from Att’y Gen. Eric H. Holder, Jr., to the Hon. John A. Boehner, Speaker of the House (Feb. 23, 2011), http://www.justice.gov/opa/pr/2011/ February/11-ag-223.html ............................ 12, 13

xv
Linda D. Garnets & Letitia Anne Peplau, A New Paradigm for Women’s Sexual Orientation: Implications for Therapy, 24 Women & Therapy 111 (2001) ..................... 56
Michael Falcone, Maine Vote Repeals Gay Marriage Law, POLITICO.com, (Nov. 4, 2009), http://www.politico.com/ news/stories/1109/29119.html .......................... 52
Michelle Garcia & Andrew Harmon, Obama’s Power Gays, Advocate.com (Oct. 24, 2011), http://www.advocate.com/news/dailynews/2011/10/24/obamas-power-gays............... 53
Owen Keehnen, The Case for Gay Marriage: Talking with Why Marriage? Author George Chauncey, GLBTQ.com (2004), http://www.glbtq.com/sfeatures/ interviewgchauncey.html ................................. 57
The Defense of Marriage Act: Hearing on S. 1740 Before the S. Comm. on the Judiciary, 104th Cong. (1996) ...................... 7, 11
William Meezan & Jonathan Rauch, Gay Marriage, Same-Sex Parenting, and America’s Children, 15 Future of Children 97 (2005), http://futureofchildren.org/futureof children/publications/docs/15_02_06.pdf.......... 42

OPINIONS BELOW
The opinion of the Court of Appeals for the Second Circuit is reported at 699 F.3d 169, and reproduced in the Appendix to the Supplemental Brief for the United States (“Supp. App.”) at 1a. The opinion of the District Court on the merits is reported at 833 F. Supp. 2d 394, and reproduced in the Appendix to the Petition for a Writ of Certiorari Before Judgment (“App.”) at 1a. The district court’s opinion on intervention is reported at 797 F. Supp. 2d 320, and reproduced in the Joint Appendix (“JA”) at JA 218.
JURISDICTION
The district court’s judgment was entered on June 7, 2012. App. 23a. The Bipartisan Legal Advisory Group of the United States House of Representatives (“the House”) filed a notice of appeal on June 8, 2012. App. 27a-29a. The United States filed its own notice of appeal on June 14, 2012. App. 25a-26a. On September 11, 2011, while the case was pending in the court of appeals, the United States filed a petition for certiorari before judgment, invoking this Court’s jurisdiction under 28 U.S.C. §§ 1254(1) and 2101(e). The court of appeals rendered its judgment on October 18, 2012. Supp. App. 1a. On December 7, 2012, this Court granted the United States’ petition.
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
The provisions of the Fifth Amendment to the Constitution and Sections 2 and 3 of the Defense of Marriage Act are reproduced in the Appendix to this brief at 1a.

2
STATEMENT OF THE CASE
A. The Defense of Marriage Act
For more than two centuries after our Nation’s Founding, every state and the federal government defined marriage as the legal union of a woman and a man. Indeed, “[u]ntil a few decades ago, it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex.” Hernandez v. Robles, 855 N.E.2d 1, 8 (N.Y. 2006).
By 1996, however, a Hawaii Supreme Court decision had called that uniform approach into question. See Baehr v. Lewin, 852 P.2d 44 (Haw. 1993) (indicating that same-sex marriage licenses may have been required by Hawaii’s constitution). The Baehr decision raised the novel question of whether one state’s redefinition of marriage should automatically extend to other states via full faith and credit principles or to the federal government when it came to federal programs linked to marriage.
Congress addressed this question by passing the Defense of Marriage Act of 1996 (“DOMA”), which “was enacted with strong majorities in both Houses [of Congress] and signed into law by President Clinton.” Massachusetts v. U.S. Dep’t of HHS, 682 F.3d 1, 6 (1st Cir. 2012), petitions for cert. pending, Nos. 12-13 & 12-15. DOMA passed in the House of Representatives by a vote of 342-67, see 142 Cong. Rec. 17094-95 (1996), and in the Senate by a vote of 85-14, see id. at 22467. In the Senate supporters included then-Senator Biden; then-Minority Leader

3
Daschle; current Majority Leader Reid; and current Judiciary Committee Chairman Leahy. In the House, Rep. Hoyer, the Current Minority Whip, supported DOMA.
DOMA reflected Congress’ determination that each sovereign should be able to determine for itself how to define marriage for purposes of its own law. DOMA does not override or invalidate any sovereign’s decision to modify the definition of marriage, but it does preserve that prerogative for each sovereign. Section 2 of DOMA allows each state to decide for itself whether to retain the traditional definition without having another jurisdiction’s decision imposed upon it via full faith and credit principles. And Section 3 preserves the federal government’s ability to use the traditional definition of marriage for purposes of federal law and programs. It does so not by singling out any category of relationships for specific exclusion, but rather by clarifying what marriage means for purposes of federal law: It clarifies that, for purposes of federal law, “marriage” means the legal union of one man and one woman, and “spouse” means a person of the opposite sex who is a husband or wife. 1 U.S.C. § 7.
DOMA does not “preclude Congress or anyone else in the federal system from extending benefits to those who are not included within [its] definition.” Smelt v. Cnty. of Orange, 447 F.3d 673, 683 (9th Cir. 2006), cert. denied, 549 U.S. 959 (2006). Thus, some federal statutes provide benefits for “families,” see, e.g., 22 U.S.C. § 4081 (extending certain financial benefits to Foreign Service members “and their families”), and the President has interpreted that

4
term, which is not defined by DOMA, to include same-sex couples. See Presidential Mem., Extension of Benefits to Same-Sex Domestic Partners of Federal Employees, 75 Fed. Reg. 32,247 (June 2, 2010) (directing the Office of Personnel Management to “clarify that, for purposes of employee assistance programs, same-sex domestic partners and their children qualify as ‘family members’”).
DOMA’s definitions apply for federal-law purposes only: DOMA does not bar or invalidate any statelaw marriage, but leaves states free to decide whether they will recognize same-sex marriages. DOMA simply asserts the federal government’s right as a separate sovereign to provide its own definition for purposes of its own federal programs and funding.
Historically, the federal government often has found it convenient to accept the marital determinations made by the several states (which for the most part have varied only in the particulars) for purposes of federal law—just as the states typically recognize marriages licensed by other states for purposes of their own law. But Congress also has a long history, when it sees fit, of supplying its own definitions of marriage for various federal purposes. These longstanding federal definitions sometimes provide marital benefits to couples who a state may not recognize as married,1 and sometimes decline to extend federal regulation or benefits to couples
1 See, e.g., 42 U.S.C. § 1382c(d)(2) (recognizing common-law marriage for purposes of social security benefits without regard to state recognition).

5
despite a state-issued marriage certificate.2
Similarly, even before DOMA was enacted, federallaw references to marriage employed the traditional definition, as Congress, the Executive Branch, and the courts have recognized. See, e.g., Revenue Act of 1921, § 223(b), 42 Stat. 227 (permitting “a husband and wife living together” to file a joint tax return; cf. 26 U.S.C. § 6013(a) (“A husband and wife may make a single return jointly of income taxes”)); 38 U.S.C. § 101(31) (for purposes of veterans’ benefits, “‘spouse’ means a person of the opposite sex”); U.S. Dep’t of Labor, Final Rule, The Family and Medical Leave Act of 1993, 60 Fed. Reg. 2,180, 2,190-91 (Jan. 6, 1995) (rejecting, as inconsistent with congressional intent, proposed definition of “spouse” that would have included “same-sex relationships”); Adams v. Howerton, 486 F. Supp. 1119, 1123 (C.D. Cal. 1980) (“Congress, as a matter of federal law, did not intend that a person of one sex could be a ‘spouse’ to a person of the same sex for immigration law purposes”), aff’d, 673 F.2d 1036 (9th Cir. 1982); Dean v. District of Columbia, 653 A.2d 307, 314 (D.C. 1995) (Congress, in enacting the District of Columbia’s 1901 marriage statute, intended “that
2 See, e.g., 5 U.S.C. §§ 8101(6), (11), 8341(a)(1)(A)-(a)(2)(A) (federal employee-benefits statutes defining “widow” and “widower” restrictively); 8 U.S.C. § 1186a(b)(1) (denying recognition to some state-law marriages in immigration law context); 26 U.S.C. § 2(b)(2) (tax law provision deeming persons unmarried who are separated from their spouse or whose spouse is a nonresident alien); 26 U.S.C. § 7703(b) (excluding some couples “living apart” from federal marriage definition for tax purposes); 42 U.S.C. § 416 (defining “spouse,” “wife,” “husband,” “widow,” “widower,” and “divorce,” for socialsecurity purposes).

6
‘marriage’ is limited to opposite-sex couples”).
Congress explained that, in defining the terms “marriage” and “spouse,” Section 3 of DOMA “merely restates the current understanding of what those terms mean for purposes of federal law.” H.R. Rep. No. 104-664, at 30 (1996), reprinted in 1996 U.S.C.C.A.N. 2905 (“House Rep.”); see also id. at 10 (“[I]t can be stated with certainty that none of the federal statutes or regulations that use the words ‘marriage’ or ‘spouse’ were thought by even a single Member of Congress to refer to same-sex couples.”); 142 Cong. Rec. 16969 (1996) (Rep. Canady) (“Section 3 changes nothing; it simply reaffirms existing law.”); id. at 22446 (Sen. Byrd) (“[A]ll this bill does is reaffirm for purposes of Federal law what is already understood by everyone.”).
Congress emphasized that “[t]he most important aspect of Section 3 is that it applies to federal law only” and does not “have any effect whatsoever on the manner in which any State might choose to define these words.” House Rep. 30 (parenthetical omitted). Section 3 defines “these two words only insofar as they are used in federal law.” Id. Congress thus reaffirmed the federal government’s ability to make its own decision regarding whether to recognize same-sex relationships as marriages, without having its hand forced by a minority of the states or forcing any state to follow the federal definition for purposes of its own state law.
In addition, Congress wanted to preserve the right of each state—like the federal government—to define marriage within its own sphere. DOMA Section 2 prevents a decision by one state to re-define marriage from trumping the decisions of other states

7
via full faith and credit principles. Section 3 similarly prevents such a state re-definition from being automatically picked up for federal-law purposes. See 142 Cong. Rec. 17079 (1996) (Rep. Bryant) (“Certainly we should not allow one State, whether it be Hawaii or any other State, to, in effect, establish what the Federal law will be in regards to what a marriage is.”); id. at 17089 (Rep. Hyde) (“[A]s to defining marriage in the Federal code, who else should define it except this Congress, the Federal legislature.”); The Defense of Marriage Act: Hearing on S. 1740 Before the S. Comm. on the Judiciary, 104th Cong. at 2 (1996) (“Senate Hrg.”) (Sen. Hatch) (DOMA “ensures that each State can define for itself the concept of marriage and not be bound by decisions made by other States. [DOMA] also makes clear that no Federal law should be read to treat a same-sex union as a ‘marriage.’”); id. at 41 (statement of Prof. Lynn Wardle) (“Section 3 protects Congress’ authority to control federal laws, programs and agencies. It prevents the imposition of same-sex marriage upon federal law without the approval of Congress. That, too, protects our federalism.”); 142 Cong. Rec. 22438 (1996) (Sen. Lott) (DOMA “will ensure that each State can reach its own decision about this extremely controversial matter: The legal status of same-sex unions. [DOMA], likewise, ensures that for the purposes of Federal programs, marriages will be defined by Federal law.”); id. at 22440 (Sen. Nickles) (Without DOMA, “if Hawaii, or any other State, gives new meaning to the words ‘marriage’ and ‘spouse,’ reverberations may be felt throughout the Federal Code.”); id. at 22452 (Sen. Mikulski) (“[This bill] puts in the Federal law books

8
what has always been the definition of a marriage” and “allows each State to determine for itself what is considered a marriage under that State’s laws.”); id. at 22453 (Sen. Hatfield) (“The bill would restrict the effect of any state law that allows same-sex marriage to that state only.”); id. (Sen. Murkowski) (“By defining the term marriage, Congress is protecting the sovereignty of each State” and avoiding “the ramifications of the absence of a definition of marriage in Federal law.”).
Members of Congress also stressed that conflicting state definitions of marriage should not be permitted to create geographical disparities in the eligibility for federal benefits. As Senator Ashcroft stated, having a uniform federal definition of marriage “is very important, because unless we have a Federal definition of what marriage is, a variety of States around the country could define marriage differently … [and] people in different States would have different eligibility to receive Federal benefits, which would be inappropriate.” 142 Cong. Rec. 22459 (1996). Federal benefits, he observed, “should be uniform for people no matter where they come from in this country. People in one State should not have a higher claim on Federal benefits than people in another State.” Id. It would be “irrational and inconsistent,” he said, if “citizens of one State [were given] higher benefits or different benefits than citizens of another State.” Id. “[I]t is entirely appropriate for us, as a Congress, to say that we want a Federal benefits structure that follows a uniform definition of ‘marriage.’” Id.; see also id. at 22453 (Sen. Murkowski) (DOMA establishes “uniformity in federal benefits, rights and privileges

9
for married persons.”); id. at 22448 (Sen. Byrd) (“Without a Federal definition … every department and every agency of the Federal Government that administers public benefit programs would be left in the lurch.”).
Congress additionally noted that DOMA helped to preserve the public fisc and avoid the unpredictable effects of changing traditional federal definitions that governed eligibility for federal benefits and taxes. “Government currently provides an array of material and other benefits to married couples,” and those benefits “impose certain fiscal obligations on the federal government.” House Rep. 18. Congress believed that DOMA would “preserve scarce government resources, surely a legitimate government purpose.” Id. As Senator Gramm observed, without DOMA, state recognition of samesex marriage will create
a whole group of new beneficiaries—no one knows what the number would be—tens of thousands, hundreds of thousands, potentially more—who will be beneficiaries of newly created survivor benefits under Social Security, Federal retirement plans, and military retirement plans.… [I]t will impose … a whole new set of benefits and expenses which have not been planned or budgeted for under current law.
142 Cong. Rec. 22443 (1996). If the federal government were forced to recognize same-sex marriages, Sen. Byrd noted, “it is [not] inconceivable that the costs associated with such a change could amount to hundreds of millions of dollars, if not billions … of Federal taxpayer dollars.” Id. at 22448;

10
see also id. at 22454 (Sen. Burns) (“Given the budget difficulties we are currently facing, it would be an understatement to say that this [federal recognition of same-sex marriages] could have an enormous financial impact on our country.”).
In retaining the traditional definition for federallaw purposes, Congress also emphasized “‘[t]he enormous importance of [traditional] marriage for civilized society.’” House Rep. 13 (quoting Council on Families in America, Marriage in America: A Report to the Nation 10 (1995)). The House Report quoted approvingly from this Court’s decision in Murphy v. Ramsey, which referred to “the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization.” House Rep. 12 (quoting 114 U.S. 15, 45 (1885)) (emphasis in House Rep.). Congress recognized that the institution of marriage has traditionally been defined in American law as the union of one man and one woman, and was cognizant of the need for caution in changing such an important institution. See House Rep. 3 (“[T]he uniform and unbroken rule has been that only opposite-sex couples can marry.”); 142 Cong. Rec. 22463 (1996) (Sen. Bradley) (“[W]hen we contemplate giving state sanction to same-sex marriages, we need to proceed cautiously.”).
Congress further explained that the institution of marriage is a response to the unique social concerns surrounding the inherently procreative nature of heterosexual relationships—specifically, that “society recognizes the institution of marriage and grants married persons preferred legal status”

11
because it “has a deep and abiding interest in encouraging responsible procreation and childrearing.” House Rep. 12, 13. Congress recognized the basic biological fact that only a man and a woman can beget a child together without advance planning, which means that opposite-sex couples have a unique tendency to produce unplanned and unintended offspring. Congress sought to encourage the raising of such children by both their biological parents in a stable family structure. See 142 Cong. Rec. 22446 (Sen. Byrd); id. at 22262 (Sen. Lieberman) (DOMA “affirms another basic American mainstream value, … marriage as an institution between a man and a woman, the best institution to raise children in our society.”).
While Congress was considering DOMA, it requested the opinion of the Department of Justice on the bill’s constitutionality, and the Department three times reassured Congress that DOMA was constitutional. See Letters from Andrew Fois, Asst. Att’y Gen., to Rep. Canady (May 29, 1996), reprinted in House Rep. 34; to Rep. Hyde (May 14, 1996), reprinted in House Rep. 33-34; and to Sen. Hatch (July 9, 1996), reprinted in Senate Hrg. 2. Congress also received and considered other expert advice and concluded that DOMA was “plainly constitutional.” House Rep. 33; see also Senate Hrg. 1, 2 (Sen. Hatch) (DOMA “is a constitutional piece of legislation” and “a legitimate exercise of Congress’ power”); id. at 2341 (testimony of Professor Wardle); id. at 44 n.1 (statement of Professor Cass Sunstein) (opining that DOMA Section 3 would be upheld as constitutional); id. at 56-59 (letter from Professor Michael McConnell).

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B. The Justice Department Stops Defending DOMA and Starts Attacking It
Following DOMA’s enactment, the Department of Justice discharged its constitutional duty to “take Care that the Laws be faithfully executed,” U.S. Const. art. II, § 3, and successfully defended Section 3 of DOMA against several constitutional challenges, prevailing in every case to reach final judgment.3 The Department continued to defend DOMA during the first two years of the current Administration.
In February 2011, however, the Administration abruptly reversed course and abdicated its duty to defend DOMA’s constitutionality. See Letter from Att’y Gen. Eric H. Holder, Jr., to the Hon. John A. Boehner, Speaker of the House (Feb. 23, 2011) (“Holder Letter”), http://www.justice.gov/opa/pr/2011/ February/11-ag-223.html. Attorney General Holder announced that he and President Obama were now of the view “that a heightened standard [of review] should apply [to DOMA], that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3.” Id.
The Attorney General acknowledged that, in light of “the respect appropriately due to a coequal branch of government,” the Department “has a longstanding practice of defending the constitutionality of dulyenacted statutes if reasonable arguments can be
3 See Smelt v. Cnty. of Orange, 374 F. Supp. 2d 861 (C.D. Cal. 2005), aff’d in part and vacated in part for lack of standing, 447 F.3d 673 (9th Cir. 2006); Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005); Hunt v. Ake, No. 04-cv-1852 (M.D. Fla. Jan. 20, 2005); In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004).

13
made in their defense.” Id. He did not, however, apply that standard to DOMA. On the contrary, he conceded that every federal court of appeals to have considered the issue by that point in time (eleven of the thirteen circuits) had applied rational basis review to sexual orientation classifications and that “a reasonable argument for Section 3’s constitutionality may be proffered under [the rational basis] standard.” Id. 4
Although the Holder Letter had said only that the Department would “cease defense” of DOMA Section 3, the Department did not merely bow out of DOMA litigation. Instead, it affirmatively assailed DOMA in court—arguing that Section 3 violates equal protection and urging courts to render judgment in favor of plaintiffs challenging the law even in Circuits in which rational basis was binding circuit law. The Department even went so far as to accuse the Congress that enacted DOMA—many of whose Members still serve—of being motivated by “animus.” Br. for United States 25, Windsor, Nos. 12-2335 & 12-2435 (2d Cir. Aug. 10, 2012), ECF 120.
4 See, e.g., Cook v. Gates, 528 F.3d 42, 61-62 (1st Cir. 2008); Thomasson v. Perry, 80 F.3d 915, 927-928 (4th Cir. 1996); Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004); Davis v. Prison Health Servs., 679 F.3d 433, 438 (6th Cir. 2012); BenShalom v. Marsh, 881 F.2d 454, 464 (7th Cir. 1989); Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 866-867 (8th Cir. 2006); High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563, 573-574 (9th Cir. 1990); Price-Cornelison v. Brooks, 524 F.3d 1103, 1113 (10th Cir. 2008); Lofton v. Sec’y of Dep’t of Children & Family Servs., 358 F.3d 804, 818 (11th Cir. 2004); Padula v. Webster, 822 F.2d 97, 103 (D.C. Cir. 1987); Woodward v. United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989).

14
In response to the Department’s remarkable “about face” on DOMA, Massachusetts, 682 F.3d at 7, the House intervened as a party-defendant in more than a dozen cases (fifteen to date), around the country, in which one or more plaintiffs challenged the constitutionality of DOMA Section 3; the House did so to ensure that a duly-enacted federal statute would have an adequate constitutional defense. No court denied intervention.
C. Ms. Windsor’s Challenge to DOMA
Respondent Edith Schlain Windsor and another woman, Thea Clara Spyer, obtained a certificate of marriage from the province of Ontario, Canada in 2007. At that time, their home state of New York did not issue marriage licenses to same-sex couples.
Ms. Spyer died in 2009, naming Ms. Windsor the executor and sole beneficiary of her estate. Nine months after Ms. Spyer’s passing, the New York Court of Appeals expressly reserved the question of whether New York law recognized foreign, same-sex marriage certificates. See Godfrey v. Spano, 920 N.E.2d 328, 337 (N.Y. 2009). New York did not itself begin issuing marriage licenses to same-sex couples until 2011.
After paying more than $363,000 in federal estate taxes, Ms. Windsor, as executor, sought a refund on the theory that the estate was entitled to the marital deduction, even though both Ms. Windsor and Ms. Spyer continued to file individual income tax returns after obtaining an Ontario marriage certificate in 2007. Recognizing that federal law offers this deduction only when the beneficiary of the estate is a “spouse” within the meaning of federal tax law and

15
DOMA, Ms. Windsor claimed that the failure to extend this favorable treatment to her violated her equal protection rights. The IRS denied the refund, and Ms. Windsor filed this suit in her capacity as executor of the estate. Ms. Windsor’s constitutional challenge is premised on the notion that New York would have recognized the 2007 Canadian marriage certificate, even though New York did not issue marriage certificates to same-sex couples until after Ms. Spyer’s death.
After the Justice Department abandoned DOMA’s defense in early 2011, the district court sua sponte invited Congress to intervene in the litigation, and the House did so. The district court followed the First Circuit’s lead and invalidated DOMA under a variant of rational basis it labeled “intensified scrutiny.” 682 F.3d at 10.
On appeal, the Second Circuit first found that the Department had appellate standing and then addressed Ms. Windsor’s standing. It recognized that, “[a]t the time of Spyer’s death in 2009, New York did not yet license same-sex marriage itself” and therefore “decisive for standing in this case” is “whether in 2009 New York recognized same-sex marriages entered into in other jurisdictions.” Supp. App. 5a. The Second Circuit declined to certify this sensitive question of state law, reasoning that the New York Court of Appeals had “signaled its disinclination to decide this very question” in Godfrey. Supp. App. 6a. Instead, the panel “‘predict[ed]’” that “Windsor’s marriage would have been recognized under New York law at the time of Spyer’s death,” based on three New York lower court rulings, two of which pre-dated Godfrey. App. 6a-7a.

16
On the merits, the panel majority recognized that this Court’s decision in Baker v. Nelson, 409 U.S. 810 (1972), “held that the use of the traditional definition of marriage for a state’s own regulation of marriage status did not violate equal protection.” Supp. App. 3a. Yet the panel majority concluded that “Baker does not control equal protection review of DOMA” because DOMA is a federal law and there had been “doctrinal changes” in equal protection law since 1971. Supp. App. 8a, 10a.
In its equal protection analysis, the panel majority explained that “a party urging the absence of any rational basis takes up a heavy load” and “[t]hat would seem to be true in this case—the law was passed by overwhelming bipartisan majorities in both houses of Congress” and “the definition of marriage it affirms has been long-supported and encouraged.” Supp. App. 12a-13a. Indeed, the panel majority did not dispute Judge Straub’s conclusion that DOMA survives rational basis review. See Supp. App. 14a. It also declined to apply “rational basis plus” review, because this Court “has not expressly sanctioned such modulation in the level of rational basis review.” Supp. App. 13a.
The panel majority ultimately determined—in conflict with eleven other circuits—that heightened scrutiny applies to classifications based on sexual orientation. Supp. App. 15a. The panel majority acknowledged that homosexuals “clearly have” attained “political successes over the years,” but deemed that they cannot “adequately protect themselves from the discriminatory wishes of the majoritarian public.” Supp. App. 21a-23a.
Finally, the panel majority concluded that Section

17
3 of DOMA could not survive heightened scrutiny. The Court recognized Congress’ concern with ensuring “uniform eligibility for federal marital benefits,” but found it “suspicious” that Congress would attempt to define the word “marriage” when it had traditionally deferred to the states. Supp. App. 24a-25a. It also recognized the budgetary concerns motivating DOMA, but held them insufficient to satisfy intermediate scrutiny. Supp. App. 26a-28a. The panel majority “agree[d] that promotion of procreation can be an important government objective,” but held that DOMA does not further that objective because it affected only federal benefits. Supp. App. 30a. Thus, although it acknowledged “that same-sex marriage is unknown to history and tradition,” the panel majority nonetheless invalidated DOMA. Supp. App. 29a-31a.
Judge Straub dissented on the merits, noting that DOMA reflects “the understanding of marriage … throughout our nation’s history,” and that, “[i]f this understanding is to be changed,… it is for the American people to do so.” Supp. App. 31a-32a. Judge Straub found that this Court’s decision in Baker resolved “the essentially identical challenge we have here,” because although Baker involved a state law, “the equal protection component of the Fifth Amendment is identical to and coextensive with the Fourteenth Amendment guarantee.” Supp. App. 32a, 45a.
Even apart from Baker, Judge Straub concluded that “routine respect for extant precedent” requires the application of rational-basis review to sexualorientation classifications. Supp. App. 81a. He observed that this Court has warned the lower

18
courts “to be wary of” creating new suspect or quasisuspect classifications, that it has not itself recognized any such classifications “in decades,” and that this Court applied rational-basis review in Romer “despite having the opportunity to apply heightened review.” Supp. App. 33a, 78a, 81a.
Applying rational basis review, Judge Straub found that “DOMA centers on legitimate state interests that go beyond mere moral disapproval of an excluded group.” Supp. App. 33a. He noted that DOMA promotes uniformity in federal marital benefits “and does nothing to strip the status that states confer on couples they marry.” Supp. App. 63a-64a. He concluded that it is rational for Congress to “limit the national impact of state-level policy development” and to “take an approach that attempts to create uniformity across the states” in matters governed by federal law. Supp. App. 67a68a, 69a.
Judge Straub also noted that this Court “has continued to view the biological link of parents to children as deserving of special recognition and protection.” Supp. App. 71a. He therefore concluded that DOMA furthers the legitimate government interest in encouraging heterosexual relationships, with their unique tendency to produce unintended offspring, to be channeled into an institution designed to facilitate the raising of such offspring. Supp. App. 55a-62a.
Judge Straub therefore concluded that “[w]hether connections between marriage, procreation, and biological offspring recognized by DOMA and the uniformity it imposes are to continue is … an issue for the American people and their elected

19
representatives to settle through the democratic process.” Supp. App. 83a. He noted the “robust political debate” on this topic and expressed regret that striking down DOMA “poisons the political well” by “interven[ing] in this robust debate only to cut it short.” Id.
SUMMARY OF THE ARGUMENT
Although the passions that surround the issue of same-sex marriage undoubtedly run high, the issue before this Court is quite narrow. Assuming that states remain free either to recognize same-sex marriages or retain the traditional definition, the question here is whether the federal government retains the same latitude to choose a definition for federal-law purposes, or whether instead it must borrow state-law definitions as its own, recognizing same-sex marriages of U.S. citizens residing in Massachusetts (because Massachusetts does) but not same-sex relationships of U.S. citizens residing in Virginia (because Virginia does not). Bedrock principles of federalism make clear that the federal government has the same latitude as the states to adopt its own definition of marriage for federal-law purposes and has a unique interest in treating citizens across the nation the same.
To be sure, the federal government also has the option of borrowing state-law definitions, as it did during the long period when the states uniformly employed the traditional definition. But in 1996 when it appeared that states soon would begin experimenting with changing the traditional definition, the federal government was under no obligation to follow suit. Congress could, and did, rationally decide to retain the traditional definition

20
as the uniform rule for federal-law purposes. Congress could, and someday may, adopt a different approach and either incorporate varying state approaches or uniformly extend rights to same-sex couples even in states that retain the traditional definition. But under our system of government those decisions are wisely left to Congress and the democratic process.
In considering DOMA’s constitutionality, the Court should apply rational basis review as it previously has done when considering classifications on the basis of sexual orientation. And under that deferential standard, there is little question that DOMA rationally furthers multiple legitimate government interests. In 1996, Congress confronted an unprecedented dynamic with at least one state on the verge of experimenting with a fundamental change to the traditional definition of marriage. In DOMA, Congress acted to ensure that no one state’s decision to adopt a new definition would dictate the result for other sovereigns either via full faith and credit principles or by federal law borrowing state definitions. In our federal system, there is certainly nothing irrational about allowing each sovereign— including the federal government—to make this important decision for itself. Indeed, the justly celebrated ability of states to act as “laboratories of democracy” necessarily assumes the ability of each sovereign to run its own experiments.
And it was certainly rational for the federal government to retain the traditional definition as the governing definition for federal-law purposes. The federal government has a unique interest in ensuring that federal benefits and tax burdens are

21
distributed equally such that a same-sex couple in Virginia is treated no differently for federal-law purposes from one in Massachusetts. And if the federal government can rationally favor a uniform rule, it was eminently rational to choose the traditional definition, which was the uniform statelaw rule in 1996 and remains the majority approach today. That decision also was rational because it accurately reflected the intent of the prior Congresses that created the multitude of programs that tie benefits and burdens to the institution of marriage as traditionally understood. It also avoided the uncertain and unpredictable fiscal impact of expanding the class of federal beneficiaries in unintended ways.
And wholly apart from these unique federal interests that fully justify DOMA, Congress could rationally decide to retain the traditional definition for the same basic reasons that states adopted the traditional definition in the first place and that many continue to retain it: There is a unique relationship between marriage and procreation that stems from marriage’s origins as a means to address the tendency of opposite-sex relationships to produce unintended and unplanned offspring. There is nothing irrational about declining to extend marriage to same-sex relationships that, whatever their other similarities to opposite-sex relationships, simply do not share that same tendency. Congress likewise could rationally decide to foster relationships in which children are raised by both of their biological parents.
Finally, the Second Circuit erred when it became the first court of appeals to treat sexual orientation

22

as a quasi-suspect class. Creating new suspect classes takes issues away from the democratic process, and this Court has wisely refrained from recognizing new suspect classes over the last four decades. Homosexuality would be a particularly anomalous place to eschew that reluctance, as gays and lesbians have substantial political power, which has grown exponentially with each election cycle. Nor do the other factors this Court has looked to support recognizing a new suspect class here. To the contrary, with an issue as divisive and fast-moving as same-sex marriage, the correct answer is to leave this issue to the democratic process. In that process, there is a premium on persuading opponents, rather than labeling them as bigots motivated by animus. And the democratic process allows compromise and way-stations, whereas constitutionalizing an issue yields a one-size-fits-all-solution that tends to harden the views of those who lose out at the courthouse, rather than the ballot box. In the final analysis, the democratic process is at work on this issue; there is no sound reason to constitutionalize it.

ARGUMENT

As a statute duly enacted by Congress and signed

by the President, DOMA is entitled to a strong

presumption of validity.

“Judging the

constitutionality of an Act of Congress is properly

considered the gravest and most delicate duty that

this Court is called upon to perform.” Walters v.

Nat’l Ass’n of Radiation Survivors, 473 U.S. 305, 319

(1985) (quotation marks omitted). “The Congress is

a coequal branch of government whose Members

take the same oath we do to uphold the Constitution

of the United States.” Rostker v. Goldberg, 453 U.S.

23
57, 64 (1981). Furthermore, “[a] ruling of unconstitutionality frustrates the intent of the elected representatives of the people.” Regan v. Time, Inc., 468 U.S. 641, 652 (1984). Therefore, “[t]his Court does and should accord a strong presumption of constitutionality to Acts of Congress. This is not a mere polite gesture. It is a deference due to deliberate judgment by constitutional majorities of the two Houses of Congress that an Act is” constitutional. United States v. Five Gambling Devices, 346 U.S. 441, 449 (1953) (plurality). And “[t]he customary deference accorded the judgments of Congress is certainly appropriate when, as here, Congress specifically considered the question of the Act’s constitutionality.” Rostker, 453 U.S. at 64; see supra at 11.
The deference owed to the coordinate branches of government is at its zenith when it comes to rational basis review. It is one thing to conclude that a coordinate branch has crossed one of the sometimes murky lines that delineate the protections of the Bill of Rights, but it is quite another thing for this Court to declare that the two coordinate branches of the national government have acted not just imprudently, but wholly without rational basis. For that reason, it is perhaps no surprise that this Court has on only one occasion (at most two) invalidated an Act of Congress while applying rational basis review. See U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528 (1973).5 And even then, this Court invalidated only
5 Moreno is readily distinguishable. The classification there could not further the interests identified by the government because the vast majority of individuals excluded could easily rearrange their affairs to become eligible, while only the

24
a single obscure amendment added in conference. Id. at 534 n.6. Striking down as irrational a statute like DOMA that was debated in both chambers, viewed as constitutional by the Justice Department, passed by large bipartisan majorities and then signed into law by the President would be wholly unprecedented.6
I. Rational Basis Review Applies To DOMA.
Ms. Windsor and the Justice Department contend that Section 3 of DOMA classifies based on sexual orientation and that therefore heightened scrutiny applies. But this Court has never classified sexual
neediest people could not. See Moreno, 413 U.S. at 538. There are no analogous difficulties with DOMA. The only other even arguable example is Jimenez v. Weinberger, 417 U.S. 628 (1974), in which the Court found a classification based on illegitimacy invalid under any standard of review when the Court was in the process of recognizing illegitimacy as a quasisuspect classification.
6 Before it can consider DOMA’s constitutionality, this Court must resolve a threshold issue of Article III standing. New York law did not recognize same-sex marriage until after Ms. Spyer’s passing. Thus, Ms. Windsor only has standing to challenge DOMA and the denial of a marital exemption from the estate tax if New York would have recognized her 2007 Ontario marriage certificate at a time when New York did not itself issue marriage certificates to same-sex couples. See Supp. App. 5a (recognizing that this question is “decisive for standing in this case”). That question is not free from doubt; the New York Court of Appeals expressly reserved that statelaw question in its 2009 Godfrey decision, nine months after Ms. Spyer’s passing. See Godfrey, 920 N.E.2d at 337. Both courts below predicted that New York would have recognized the Ontario marriage certificate, which presumably does not obviate the need for this Court to assure itself of its Article III jurisdiction.

25
orientation as a suspect or quasi-suspect class, and indeed has gone out of its way to apply rational basis review. This Court should do the same here and apply rational basis review to DOMA.7
Under this Court’s equal protection cases, there are only three levels of scrutiny. Strict scrutiny is reserved for laws that classify based on “race, alienage, or national origin.” City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985). Classifications based on “sex or illegitimacy” are quasi-suspect and receive “intermediate scrutiny.” Clark v. Jeter, 486 U.S. 456, 461 (1988). All other classifications trigger only rational basis review. This Court has never considered sexual orientation to be a suspect or quasi-suspect classification and instead has repeatedly applied rational basis review to such classifications.
This Court considered a classification similar to DOMA in Baker v. Nelson, 409 U.S. 810 (1972). The Baker Court rejected “for want of a substantial federal question” an equal protection challenge to Minnesota’s statute defining marriage as a union between persons of the opposite sex. Baker, 409 U.S. at 810. Although the Court’s summary disposition
7 By its terms, DOMA does not classify based on a married couple’s sexual orientation. Rather, DOMA classifies based on whether a marriage is (i) a legal union (ii) between two persons (iii) of the opposite sex. A marriage between a man and a woman would fall within DOMA’s definition even if one or both spouses were homosexual. Similarly, the marriage of two men would fall outside the definition even if both were heterosexual. There is no question, however, that DOMA has a disproportionate impact on individuals with a homosexual orientation.

26
did not specify the level of scrutiny it applied, subsequent decisions, discussed in the paragraphs immediately below, make clear that the Court applied only rational basis review to the Minnesota statute’s limitation of marriage to opposite-sex couples. Such a summary dismissal is, of course, a decision on the merits and, while it does not have the same force before this Court as a decision reached after plenary review, it carries precedential effect. “Summary affirmances and dismissals for want of a substantial federal question without doubt reject the specific challenges presented in the statement of jurisdiction.” Mandel v. Bradley, 432 U.S. 173, 176 (1977) (per curiam); see also Massachusetts, 682 F.3d at 8 (Baker is “precedent binding” on lower courts and thus forecloses arguments that “presume or rest on a constitutional right to same-sex marriage”).
This Court subsequently considered an equal protection challenge to a sexual orientation classification on plenary review and applied rational basis review. See Romer v. Evans, 517 U.S. 620 (1996). Romer involved a voter-enacted referendum in Colorado known as Amendment 2, which “prohibit[ed] all legislative, executive or judicial action at any level of state or local government designed to protect the named class” of “homosexual persons or gays and lesbians.” Id. at 624. The Colorado Supreme Court applied strict scrutiny to invalidate Amendment 2. Id. at 625.
Despite the Colorado Supreme Court’s application of strict scrutiny, this Court reviewed Amendment 2 under the rational basis test, which applies when a law “neither burdens a fundamental right nor targets a suspect class.” Id. at 631. Under that test,

27
legislation is upheld “so long as it bears a rational relation to some legitimate end.” Id. This Court held that Amendment 2 “fails, indeed defies, even this conventional inquiry.” Id. at 632 (emphasis added). See also id. at 635 (concluding that “a law must bear a rational relationship to a legitimate governmental purpose, and Amendment 2 does not.” (citation omitted)). Thus, even in the face of the protestations of the dissent that it was applying something other than rational basis review, see id. at 651 (Scalia, J., dissenting), the Court made clear that it was applying conventional rational basis review, not any form of heightened scrutiny, to the sexual orientation classification before it in Romer.
In Lawrence v. Texas, 539 U.S. 558 (2003), this Court once again declined to apply heightened scrutiny. Lawrence struck down a Texas statute that criminalized intimate sexual conduct between two persons of the same sex, while not reaching opposite-sex couples engaging in the same conduct. Rather than addressing that differential treatment under the Equal Protection Clause, the Court decided the case under the Due Process Clause and invalidated the Texas statute and overruled Bowers v. Hardwick, 478 U.S. 186 (1986). The Lawrence Court emphasized the limited nature of that due process holding and specified that it was not holding that “the government must give formal recognition to any relationship that homosexual persons seek to enter.” 539 U.S. at 578.
Justice O’Connor preferred to decide the case under the Equal Protection Clause and, consistent with Romer, applied rational basis review. She explained that her analysis of the Texas law “does

28
not mean that other laws distinguishing between heterosexuals and homosexuals would similarly fail under rational basis review. Texas cannot assert any legitimate state interest here, such as … preserving the traditional institution of marriage.” Id. at 585 (O’Connor, J., concurring in the judgment) (emphasis added).
Although the court of appeals here applied heightened scrutiny to DOMA, the traditional factors this Court looks to in ascertaining the appropriate level of equal protection scrutiny do not support that conclusion. See Part III, infra. Rather, the proper result under this Court’s precedents and the law of every other Circuit to consider the question is that rational basis review applies. As shown next, multiple rational bases support Congress’ decision to employ the traditional definition of marriage for federal-law purposes.
II. Multiple Rational Bases Support DOMA And Its Decision To Retain The Traditional Definition Of Marriage For Federal-Law Purposes.
Rational basis review “is a paradigm of judicial restraint.” FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313-14 (1993). “[T]he Constitution presumes that even improvident decisions will eventually be rectified by the democratic process.” Cleburne, 473 U.S. at 440. Thus, “judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted.” Vance v. Bradley, 440 U.S. 93, 97 (1979). The judicial role is modest precisely because rational basis is “the most relaxed and tolerant form of judicial scrutiny under the Equal Protection Clause.” City of Dallas v. Stanglin,

29
490 U.S. 19, 26 (1989). The statute enjoys “a strong presumption of validity,” and the challenger bears “the burden ‘to negative every conceivable basis which might support it’” without regard to “whether the conceived reason for the challenged distinction actually motivated the legislature.” Beach, 508 U.S. at 314-15 (quoting Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364 (1973)); see also Armour v. City of Indianapolis, 132 S. Ct. 2073, 2080-81 (2012).
As noted, deference is particularly strong when it comes to reviewing the work of the two coordinate political branches of the federal government. And deference is at its zenith when it comes to statutory definitions and other line-drawing exercises such as DOMA Section 3. This Court has recognized that in formulating definitions or establishing categories of beneficiaries, “Congress had to draw the line somewhere,” Beach, 508 U.S. at 316, which “inevitably requires that some persons who have an almost equally strong claim to favored treatment be placed on different sides of the line.” Mathews v. Diaz, 426 U.S. 67, 83 (1976); see Schweiker v. Wilson, 450 U.S. 221, 238 (1981) (prescribing extra deference for statutory distinctions that “inevitably involve[] the kind of line-drawing that will leave some comparably needy person outside the favored circle” (footnote omitted)). The Court has applied this deferential approach not just to economic legislation, but also to benefits legislation, e.g., Schweiker, and even to government determinations of who or what constitutes a family, Village of Belle Terre v. Boraas, 416 U.S. 1, 8 (1974) (upholding on rational basis review zoning regulation defining unmarried couples

30
as “families” permitted to live together, but prohibiting cohabitation by larger groups). In such cases, Congress’ decision where to draw the line is “virtually unreviewable.” Beach, 508 U.S. at 316.
Applying this deferential review to DOMA, it is clear that Congress, when confronting the unprecedented phenomenon of states beginning to experiment with the traditional definition of marriage, had and maintains multiple rational bases to retain the traditional definition as the operative definition for purposes of federal law.
A. DOMA Rationally Preserves Each Sovereign’s Ability to Define Marriage for Itself at a Time When States Are Beginning to Experiment with the Traditional Definition.
When Congress enacted DOMA in 1996, it confronted a unique phenomenon. Up until that point, every state in the nation defined marriage in traditional terms as a union between a man and a woman. There was little doubt that when Congress used terms like “marriage,” “married,” and “spouse” in federal statutes, it too had the traditional definition in mind. But Congress did not even need to consider whether it preferred a uniform federal definition of marriage or instead preferred to defer to the states, because every state adopted the same, traditional approach. Only as that began to change did Congress consider DOMA.
The Hawaii Supreme Court’s decision in Baehr raised the prospect that some states would begin to experiment with the traditional definition and expand it to include same-sex couples. At least in

31
Hawaii, the impetus for this change came not from the democratic process, but from the state courts’ interpretation of the state constitution. And in our federalist system, the prospect that one state would alter the traditional definition raised the distinct prospect that one state could effectively change the law for other states via full faith and credit principles—and for the federal government to the extent federal law simply borrowed the state’s definition.
DOMA’s two operative provisions responded to this unprecedented dynamic in a manner that preserved each sovereign’s ability to define marriage for itself. Section 2 preserved each state’s ability to define marriage as it preferred by ensuring that any one state’s definition would not trump another state’s judgment by operation of full faith and credit principles. In a similar fashion, Section 3 ensured that federal law would not simply borrow whatever definition or redefinition a state chose to adopt, but instead that the federal government would distinctively define marriage for federal-law purposes only and would retain the traditional definition.
Congress’ approach in DOMA was a balanced one that fully reflects and respects our federalist system. Congress did not attempt to override any state’s decision to experiment with the definition of marriage or deem any particular redefinition of marriage irrational. But at the same time Congress recognized that states could rationally decide to expand the traditional definition of marriage to include same-sex couples, it also recognized that other jurisdictions, including the federal government

32
for uniquely federal purposes, could rationally decide to retain the traditional definition. DOMA permitted states to perform their role as “laboratories of democracy,” while at the same time ensuring that no one state’s experiment would be imposed on other states or on the federal government.
DOMA thus reflects an interest in ensuring that, at a time of unprecedented reconsideration of the traditional definition of marriage, each sovereign in our federal system may decide this important issue for itself. That surely is a rational—–indeed an important and vital—basis for action in our system of dual federalism.
And the federal government’s decision to retain the traditional definition as its own also surely was a rational one. As shown in more detail below, at the time of DOMA’s enactment every state retained the traditional definition and that remains the approach of the majority of the states. It plainly was rational for Congress to adopt the majority definition as its own, especially when that traditional definition was the underlying assumption of countless past federal legislative decisions, and when altering that definition would have unpredictable fiscal effects and would undermine uniquely federal interests in the uniformity of federal benefits and burdens. Further, Congress could rationally retain the traditional definition for all the reasons a state could rationally retain the traditional definition. While the federal definition of marriage does not have the same direct impact on the institution as a state decision, it has some effect. Assuming that states continue to have the flexibility to retain the

33
traditional definition, there is no reason why the federal government does not have the same latitude.
B. DOMA Ensures National Uniformity in Eligibility for Federal Benefits and Programs Based on Marital Status.
As long as all the states retained the traditional definition of marriage, there was no need for the Congress to choose between having a uniform federal definition for federal benefits and burdens and simply borrowing the state definition of marriage. But when Hawaii was on the verge of becoming the first state to experiment with altering the traditional definition, Congress had to choose between retaining a uniform federal rule or continuing simply to borrow state definitions in a manner that would create the possibility of disparities in federal benefits across jurisdictions. Congress chose the former, and that decision was eminently rational.
In a nation where some states would recognize same-sex marriage and other states would not, Congress rationally could desire to maintain uniformity in the federal approach to this question, rather than adopting a patchwork of disparate statelaw rules. DOMA Section 3 accomplishes exactly that, ensuring that similarly-situated couples will have the same federal benefits regardless of the state in which they happen to reside. The uniform federal rule reaffirmed by DOMA also avoids a confusing situation in which same-sex couples would lose (or gain) federal marital status simply by moving between states with different policies on recognition of same-sex marriages. See, e.g., 142 Cong. Rec. 10468 (1996) (Sen. Nickles) (DOMA “will eliminate legal uncertainty concerning Federal

34
benefits”); id. at 22459 (Sen. Ashcroft) (finding it “very important” to prevent “people in different States [from having] different eligibility to receive Federal benefits”). Likewise, a uniform federal rule also avoids the prospect that a federal employee— military or civilian—would resist moving from one jurisdiction to another for fear it would affect his or her federal benefits or tax status.
The adoption of a uniform federal rule also serves the government’s rational interest in easing administrative burdens. While it may seem a simple matter to determine which jurisdictions have recognized same-sex marriage, this case illustrates that the issue is far more complicated. Ms. Windsor’s claim to a marital exemption from the estate tax does not turn on New York’s very public adoption of laws permitting same-sex marriage in 2011 but, rather, on obscure, and as-yet not definitively settled, choice-of-law principles concerning New York’s recognition of foreign marriage certificates in 2009. Ms. Windsor filed her claim here before New York recognized same-sex marriage, and her success depends on whether New York courts would have recognized a Canadian marriage certificate issued to a same-sex couple at a time when New York would not issue such a certificate itself. If her claim is successful, the federal government would have to confront similar choice-of-law questions in all the jurisdictions that retain the traditional definition. It was certainly rational for the federal government to prefer a uniform federal rule to the vagaries and difficulties of undertaking a multitude of such complex choiceof-law determinations.

35
When Hawaii threatened to break up the uniformity of the states’ definition of marriage, Congress essentially had two decisions to make. First, it had to decide between adopting a uniform federal rule or borrowing state definitions in a way that would produce a disparity in federal benefits. It was clearly rational for Congress, with its unique concern for treating citizens in Oklahoma the same as citizens in Hawaii, to choose the former. Second, once Congress decided to adopt a uniform rule, it had to decide whether to retain the traditional definition and the approach of all 50 states at the time, or to alter the traditional definition to include same-sex couples. While either choice would have been rational, adopting the overwhelming majority approach surely was a permissible option. By the same token, if at some future point all but a handful of jurisdictions recognize same-sex marriages, it would be entirely rational for Congress to change the law and adopt that majority approach as the uniform rule. In short, the rationality of the federal government interest in uniformity is independent of the rule adopted.
Despite the rationality of preferring a uniform federal rule and adopting the majority approach as the federal rule, the courts below regarded Congress’ interest in a uniform federal-law definition of marriage as at best “suspicious,” Supp. App. 24a, and at worst an illegitimate “intrusion” into state authority over marriage, Supp. App. 25a-26a. But such suspicions ignore both the unprecedented situation Congress confronted and basic tenets of federalism. Suspicion of Congress’ adoption of a uniform definition seems to stem from Congress’

36
traditional willingness to borrow state law definitions. But when state definitions of marriage vary only in the details, it is understandable and commendable for federal law to borrow those definitions. On the other hand, when a state is on the verge of making a fundamental change to the definition, that creates a need for Congress to choose between uniformity and borrowing (a need that simply did not exist before), and as demonstrated above, it is certainly rational to choose the former.
The suggestion that states somehow have special constitutional authority to define what the words “marriage” and “spouse” mean for purposes of federal law runs entirely counter to our basic constitutional structure. Indeed, the presumption is the opposite. It is well established that, unless Congress plainly manifests an “intent to incorporate diverse state laws into a federal statute, the meaning of [a] federal statute should not be dependent on state law.” United States v. Turley, 352 U.S. 407, 411 (1957); see also Helvering v. Davis, 301 U.S. 619, 645 (1937) (“When money is spent to promote the general welfare, the concept of welfare … is shaped by Congress, not the states.”); see also Massachusetts, 682 F.3d at 12 (“Congress surely has an interest in who counts as married. The statutes and programs that section 3 governs are federal regimes … and their benefit structure requires deciding who is married to whom. That Congress has traditionally looked to state law to determine the answer does not mean that the Tenth Amendment or Spending Clause require it to do so.”).
The “genius” of the framers was in “establishing two orders of government, each with its own direct

37

relationship, its own privity, its own set of mutual rights and obligations to the people who sustain it and are governed by it.” U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 838 (1995) (Kennedy, J., concurring). Thus, when it comes to defining marriage for purposes of state law, the states may well enjoy constitutional power to make such determinations without federal interference. But DOMA does not interfere with or override state law, and Section 2 affirmatively promotes each state’s interest in deciding this important issue for itself. At the same time, nothing in “our federalism” prevents the federal sovereign from exercising its authority to independently determine the meaning of words in its own law. To be sure, Congress may choose to borrow state-law definitions as a matter of cooperative federalism—and it historically has done so in many, but far from all, contexts with respect to marriage definitions. See supra at 4-6. But the notion that Congress is somehow constitutionally required to do so—that state law can “reverse preempt” contrary federal statutes in this area, and eliminate what otherwise would be the legitimate federal interest in uniform federal legal rules of nationwide applicability—is wholly unprecedented and foreign to our constitutional tradition.

C. DOMA Preserves Past Legislative

Judgments,

Conserves

Financial

Resources, and Avoids Uncertain and

Unpredictable Effects on the Federal Fisc.

Congress’ decision to retain the traditional federal definition as the uniform federal rule in 1996 was supported by a number of other rational bases that are uniquely federal in nature. First, retaining the

38
traditional definition preserved the legislative judgments of earlier Congresses. Congress recognized that whatever the future held for the definition of marriage, the multitude of federal statutes already on the books that used the terms “marriage” or “spouse” intended to incorporate the traditional definition of marriage. In some cases, that intent was explicit as statutes included references to “husband and wife” or other terms clearly incorporating the traditional definition. In other cases, the legislative judgment reflected the traditional definition implicitly, because the definition was uniformly applied. See, e.g., Adams, 486 F. Supp. at 1122 (“The term ‘marriage’ … necessarily and exclusively involves a contract, a status, and a relationship between persons of different sexes. That is the way the term ‘marriage’ is defined in every legal source that I have examined, starting with Black’s Law Dictionary.”). But in every case, the Congress that enacted DOMA in 1996 knew that each of the existing references to marriage in the United States Code, many of which were the product of legislative compromise, reflected the traditional definition. Against that backdrop, it certainly was rational for Congress to preserve those past legislative judgments and expressly adopt the traditional definition as an accurate reflection of past Congresses’ intent when they used the defined terms in federal law.
Congress’ retention of the traditional definition of marriage also rationally avoided uncertain and unpredictable (but presumed negative) effects on the federal fisc. In enacting DOMA, Congress recognized that a great many financial benefits from

39
the government turn on whether one is “married” for purposes of federal law. See House Rep. 18. In DOMA, Congress made the conscious decision not to expand the category of beneficiaries just because a state chose to expand its definition of marriage. See id. (stating that DOMA will “preserve scarce government resources, surely a legitimate government purpose”); 142 Cong. Rec. 22443 (1996) (Sen. Gramm) (DOMA prevents a “new set of benefits and expenses which have not been planned or budgeted for under current law”).
Congress operated on the assumption that expanding the definition of marriage would have a substantial net negative effect on the federal fisc. See id. at 22448 (Sen. Byrd) (changing definition of marriage could cost federal government “hundreds of millions of dollars, if not billions”); see also supra at 9-10. The exact net effect is uncertain because although some benefits are extended exclusively to married couples, other laws operate as a “marriage penalty” or save the federal government funds if a marriage makes individuals ineligible for meanstested programs based on joint income. But Congress could rationally conclude that the net effect would be negative (if for no other reason than couples with a financial disincentive to do so might be less inclined to officially tie the knot), and in all events Congress could rationally decide to avoid a potentially large and uncertain effect that would have radically different impacts across federal agencies. See Massachusetts, 682 F.3d at 9 (explaining that under “rational basis standard,” challenge to DOMA “cannot prevail” because “Congress could rationally have believed that DOMA

40
would reduce costs”).8 Since DOMA would preserve the status quo ante of providing federal benefits only to couples married under the traditional definition, Section 3 would avoid this uncertain and unpredictable effect.9 This Court has recognized
8 Ms. Windsor disputes DOMA’s cost savings, pointing to a Congressional Budget Office report published in 2004 (eight years after DOMA’s enactment). See Cong. Budget Office, The Potential Budgetary Impact of Recognizing Same-Sex Marriages (2004), http://www.cbo.gov/sites/default/files/cbofiles/ftpdocs/55 xx/doc5559/06-21-samesexmarriage.pdf. But the Second Circuit correctly concluded that it was Congress’ “prerogative” to find that DOMA “will achieve a net benefit to the Treasury.” App. 27a. The First Circuit likewise concluded that avoiding an uncertain impact on the federal fisc provides a rational basis for DOMA despite the CBO report. See Massachusetts, 682 F.3d at 9. Furthermore, the cursory ten-page CBO report— which acknowledged that its “estimates are highly uncertain” (at 3)—appears to make a critical analytical error: In claiming that many same-sex couples would become ineligible for federal means-tested benefits after their incomes were combined (as marriage would require), the report seemingly neglects to consider that many couples likely would avoid this financial hit simply by not marrying. Cf. id. (“how many same-sex partners would marry if allowed is unknown”).
9 The Second Circuit viewed DOMA not as preserving the status quo, but as “a benefit withdrawal” because “it functionally eliminated longstanding federal recognition of all marriages that are properly ratified under state law.” Supp. App. 27a. But that plainly is wrong because it ignores the state of the world in which Congress acted in 1996 in which the federal government had never extended a federal marital benefit to a same-sex couple. It also largely begs the question (and ignores Congress’ bipartisan judgment in DOMA) by assuming that Congress’ dominant intent had always been to borrow state law whatever its content rather than employ the traditional definition, notwithstanding the numerous federal statutes that by their terms apply only to opposite-sex couples, see supra at 4-6.

41
that when Congress declines to extend benefits to those not previously eligible—as it did in DOMA— such actions are supported by the government’s rational interest in proceeding “cautiously” and protecting the fisc. Bowen v. Owens, 476 U.S. 340, 348 (1986).
“[T]he Constitution does not empower this Court to second-guess … officials charged with the difficult responsibility of allocating limited public welfare funds among the myriad of potential recipients.” Dandridge v. Williams, 397 U.S. 471, 487 (1970). And here, there is no denying that a redefinition of marriage by a substantial number of states would have a significant, if not entirely predictable, effect on the federal budget. Thus, it is not surprising that the First Circuit recognized that DOMA satisfies traditional rational basis review because “Congress could rationally have believed that DOMA would reduce costs.” Massachusetts, 682 F.3d at 9.
D. Congress Rationally Proceeded with Caution When Faced with the Unknown Consequences of an Unprecedented Redefinition of Marriage, a Foundational Social Institution, by a Minority of States.
In enacting DOMA and adopting the traditional definition as the uniform federal rule, Congress recognized that the institution of marriage as between a man and a woman is, to borrow this Court’s words from another context, “deeply embedded in the history and tradition of this country” and “has become part of the fabric of our society.” Marsh v. Chambers, 463 U.S. 783, 786, 792 (1983). Congress rationally could have regarded any significant change in the definition of this bedrock

42
institution as having potentially significant consequences. Congress thus rationally could have concluded that any experimentation with such a longstanding institution should proceed first at the state level, while the federal government retains the traditional definition for its own purposes. See House Rep. 15.
Virtually no society anywhere has had even a single generation’s worth of experience with treating same-sex relationships as marriages. There thus is ample room for a wide range of rational predictions about the likely effects of such recognition—on the institution of marriage, on society as a whole, and on distinctly federal interests. As two supporters of same-sex marriage put it, “whether same-sex marriage would prove socially beneficial, socially harmful, or trivial is an empirical question …. There are plausible arguments on all sides of the issue, and as yet there is no evidence sufficient to settle them.” William Meezan & Jonathan Rauch, Gay Marriage, Same-Sex Parenting, and America’s Children, 15 Future of Children 97, 110 (2005), http://futureofchildren.org/futureofchildren/publicati ons/docs/15_02_06.pdf (endorsing “limited, localized experiment” at state level). One of the great benefits of federalism is that it allows states to adopt “novel social and economic experiments without risk to the rest of the country.” New State Ice Co. v. Liebmann, 285 U.S. 262, 310 (1932) (Brandeis, J., dissenting). In light of the uncertainty about the consequences of changing such a long-established institution, it certainly was rational for Congress to decide to allow states to act as laboratories of democracy, while the federal government awaited the results of such state

43
experiments.
E. The Federal Government Could Rationally Retain the Traditional Definition for the Same Reasons States Can Rationally Retain that Definition.
Given its role in our federalist system, the federal government has unique interests in adopting the traditional definition as the uniform national rule for federal-law purposes. The national government has a distinct interest in treating citizens in different states similarly for federal-law purposes, without regard to the vagaries of states’ treatment of foreign judgments, and has a distinct interest in making a federal employee indifferent between working in Maryland or Virginia. But in addition to such uniquely national interests, Congress has the same reasons for retaining the traditional definition as the substantial majority of states that have done so. Although the federal government does not have the same direct effect on the institution of marriage as the sovereigns that directly issue marriage certificates, federal law and federal definitions can still effect such institutions at the margin. See Nat’l Fed. Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2579 (2012) (“[T]he Federal Government [has] considerable influence even in areas where it cannot directly regulate.”). Thus, the federal government can retain the traditional definition based on a rational belief that doing so will rationally further the institution of marriage in the long run. Indeed, the burden on the challengers to DOMA is to explain why, if states can rationally choose either to expand the traditional definition to include same-sex couples or retain the traditional definition, the federal

44
government cannot rationally make the same choice.
1. Providing a Stable Structure to Raise Unintended and Unplanned Offspring
Many states have chosen to retain the traditional definition because of the intrinsic connection between marriage and children. In enacting DOMA, Congress recognized that, “[s]imply put, government has an interest in marriage because it has an interest in children.” House Rep. 13. Similarly, this Court has repeatedly recognized that marriage’s importance is derived from its intrinsic connection to procreation. See, e.g., Zablocki v. Redhail, 434 U.S. 374, 386 (1978) (“[A] decision to marry and raise the child in a traditional family setting must receive [constitutional] protection.”).
The link between procreation and marriage itself reflects a unique social difficulty with opposite-sex couples that is not present with same-sex couples— namely, the undeniable and distinct tendency of opposite-sex relationships to produce unplanned and unintended pregnancies. Government from time immemorial has had an interest in having such unintended and unplanned offspring raised in a stable structure that improves their chances of success in life and avoids having them become a burden on society. See Yarborough v. Yarborough, 290 U.S. 202, 221 (1933) (“In order that children may not become public charges, the duty of maintenance is one imposed primarily upon the parents”); King v. Smith, 392 U.S. 309, 330 (1968) (biological parents have legal duties of support that government fills when abdicated). Particularly in an earlier era when employment opportunities for women were at best limited, the prospect that

45
unintended children produced by opposite-sex relationships and raised out-of-wedlock would pose a burden on society was a substantial government concern. Thus, the core purpose and defining characteristic of the institution of marriage always has been the creation of a social structure to deal with the inherently procreative nature of the malefemale relationship. Specifically, the institution of marriage represents society’s and government’s attempt to encourage current and potential mothers and fathers to establish and maintain close, interdependent, and permanent relationships, for the sake of their children, as well as society at large. It is no exaggeration to say that the institution of marriage was a direct response to the unique tendency of opposite-sex relationships to produce unplanned and unintended offspring.
Although much has changed over the years, the biological fact that opposite-sex relationships have a unique tendency to produce unplanned and unintended offspring has not. While medical advances, and the amendment of adoption laws through the democratic process, have made it possible for same-sex couples to raise children, substantial advance planning is required. Only opposite-sex relationships have the tendency to produce children without such advance planning (indeed, especially without advance planning). Thus, the traditional definition of marriage remains society’s rational response to this unique tendency of opposite-sex relationships. And in light of that understanding of marriage, it is perfectly rational not to define as marriage, or extend the benefits of marriage to, other relationships that, whatever their

46
other similarities, simply do not have the same tendency to produce unplanned and potentially unwanted children. Indeed, Congress recognized as much. See House Rep. 14 (“Were it not for the possibility of begetting children inherent in heterosexual unions, society would have no particular interest in encouraging citizens to come together in a committed relationship.”).
Court decisions upholding traditional marriage laws on the state level have employed similar reasoning. See, e.g., Hernandez, 855 N.E.2d at 7 ([The Legislature] could find that an important function of marriage is to create more stability and permanence in the relationships that cause children to be born. It thus could choose to offer an inducement—in the form of marriage and its attendant benefits—to opposite-sex couples who [marry]. The Legislature could find that this rationale for marriage does not apply with comparable force to same-sex couples.”); Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 867-68 (8th Cir. 2006) (upholding Nebraska’s marriage law based a “government interest in ‘steering procreation into marriage’”; noting that the statute “confer[s] the inducements of marital recognition and benefits on opposite-sex couples, who can otherwise produce children by accident, but not on same-sex couples, who cannot”); Conaway v. Deane, 932 A.2d 571, 63031 (Md. 2007).
DOMA’s definition of marriage as between a woman and a man is rational—and constitutional— because it is tailored to fit the social issue that the institution of marriage addresses. The equal protection guarantee “is essentially a direction that

47
all persons similarly situated should be treated alike.” Cleburne, 473 U.S. at 439. Opposite-sex couples and same-sex couples, whatever their other similarities, are not similarly situated with regard to their propensity to result in unplanned pregnancies. “Principles of equal protection do not require Congress to ignore this reality.” Nguyen v. INS, 533 U.S. 53, 66 (2001).
2. Encouraging the Rearing of Children by Their Biological Parents
One of the strongest presumptions known to our culture and law is that a child’s biological mother and father are the child’s natural and most suitable guardians and caregivers, and that this family relationship should be encouraged. See Santosky v. Kramer, 455 U.S. 745, 760 n.11, 766 (1982); Smith v. Org. of Foster Families for Equal. & Reform, 431 U.S. 816, 843-47 (1977); Supp. App. 72a-73a & n.11. To be sure, our tradition offers the same protections for an adoptive parent-child relationship, once it is formed. But nonetheless when both biological parents want to raise their child, the law has long recognized a distinct preference for the child to be raised by those biological parents. Cf. Smith, 431 U.S. 816 at 823. And this bedrock assumption is grounded in common sense and human experience: Biological parents have a genetic stake in the success of their children that no one else does. See Kristin Anderson Moore et al., Marriage from a Child’s Perspective: How Does Family Structure Affect Children and What Can We Do About It?, Child Trends Research Brief 1-2 (2002), http://www.childtrends.org/files/marriagerb602.pdf.
Of course, only relationships between opposite-sex

48

couples can result in children being raised by both of

their biological parents.

Therefore, when

government offers special encouragement and

support for relationships that can result in mothers

and fathers jointly raising their biological children, it

rationally furthers its legitimate interest in

promoting this type of family structure in a way that

extending similar regulation to other relationships

would not.

3. Promoting Childrearing by Both a Mother and a Father

Finally, biological differentiation in the roles of mothers and fathers makes it rational to encourage situations in which children have one of each. As this Court has recognized, “the two sexes are not fungible; a community made up exclusively of one [sex] is different from a community composed of both.” United States v. Virginia, 518 U.S. 515, 533 (1996) (quotation marks omitted). Men and women are different. So are mothers and fathers. Common sense, and the experience of countless parents, informs us that children relate and often react differently to mothers and fathers. It is thus rational for governments to offer special encouragement for family structures in which these differing parental roles can complement each other. Moreover, the different challenges faced by boys and girls as they grow to adulthood make it at least rational to think that children benefit from having parental role models of both sexes.

* * *

The court of appeals concluded that reserving a special set of federal marital regulations and

49
incentives for opposite-sex couples has nothing to do with the government interests in procreation and childrearing, because extending the same regime to same-sex couples would not change the availability of benefits to opposite-sex couples. Supp. App. 29a30a. But that is not obviously correct in a world of limited resources and, in any event, is not the proper inquiry under rational basis review. In an equal protection challenge, a classification is rational if “the inclusion of one group promotes a legitimate governmental purpose, and the addition of other groups would not.” Johnson v. Robison, 415 U.S. 361, 383 (1974). Even if extending the definition of marriage to same-sex couples would not harm opposite-sex couples in the least, the question remains whether it was rational for Congress to draw the line where it did. And because the institution of marriage arose in large measure in response to a unique social difficulty that oppositesex couples, but not same-sex couples, posed, it was rational for Congress to draw the line where it did.
III. The Longstanding List Of Suspect And Quasi-Suspect Classes Should Not Be Expanded To Include Sexual Orientation.
While rational basis review is “a paradigm of judicial restraint,” Beach, 508 U.S. at 314, the recognition of quasi-suspect and suspect classes has the opposite effect. It extracts certain issues from the normal democratic process and limits the ability of states and the federal government to address those issues through their political branches. Accordingly, this Court has cautioned that the judiciary must be “very reluctant” to establish new suspect (or quasi-suspect) classes given “our federal

50
system and … our respect for the separation of powers.” Cleburne, 473 U.S. at 441. In keeping with that admonition, this Court has not added to the short list of suspect or quasi-suspect classes in the last forty years, and indeed has rejected every proposed such class during that span, including mental disability, id. at 442-47, kinship, Lyng v. Castillo, 477 U.S. 635, 638 (1986), age, Mass. Bd. of Ret. v. Murgia, 427 U.S. 307 (1976), and poverty, San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973).
This Court has had opportunities to declare sexual orientation a suspect class and has declined to do so. See Massachusetts, 682 F.3d at 9 (noting that this Court “conspicuously failed to do so in Romer—a case that could readily have been disposed by such a demarche”); App. 31a. The Second Circuit’s holding in this case that sexual orientation classifications are quasi-suspect is truly an outlier—it is contrary to the thrust of this Court’s decisions and directly conflicts with the decisions of eleven other circuits holding that such classifications are not subject to any heightened scrutiny. See supra at 13 n.4.
This Court has identified four relevant factors in determining whether a class is suited for suspect or quasi-suspect treatment. None of these factors adequately supports adding sexual orientation to the list, and perhaps the most important—the political power to participate in the democratic process—tips decisively against making sexual orientation the first new suspect or quasi-suspect class in forty years.

51
A. Gays and Lesbians Are Far from Politically Powerless.
More than twenty years ago, the Seventh and Ninth Circuits recognized that “homosexuals … are not without growing political power,” and that “[a] political approach is open to them” to pursue their objectives. Ben-Shalom, 881 F.2d at 466; accord High Tech Gays, 895 F.2d at 574. Whatever the limits of that conclusion two decades ago, there can be no serious doubt that the political power of gays and lesbians has increased exponentially since then.
Today, same-sex marriage is supported by President Obama (who has called for DOMA’s repeal), Vice President Biden (who voted for DOMA as a Senator in 1996 but has since changed his view), and the Senate majority leader, the House minority leader, and the Democratic Party’s 2012 platform. One-third of the Members of the U.S. House of Representatives filed a brief in the court below attacking both the wisdom and constitutionality of DOMA.
Polling indicates that by 2011, the proportion of Americans supporting same-sex marriage had increased from 27% to 53% in a span of only 16 years. See Frank Newport, For First Time, Majority of Americans Favor Legal Gay Marriage, Gallup.com (May 20, 2011), http://www.gallup.com/poll/147662/ first-time-majority-americans-favor-legal-gaymarriage.aspx. The November 2012 elections witnessed “a record number of openly gay candidates” for Congress, and the election of the first openly gay U.S. Senator. Charles Mahtesian, A Record Number of Gay Candidates, POLITICO.com (Oct. 2, 2012), http://www.politico.com/blogs/charlie-

52
mahtesian/2012/10/a-record-number-of-gaycandidates-137289.html. In that same election cycle, voters in Maine, Maryland, and Washington state passed measures allowing same-sex marriage, and Minnesota voters defeated a proposed traditional marriage amendment to the state constitution. The Maine result demonstrates the capacity for the give and take of the political process to change voters’ minds, as the Maine referendum effectively reversed the result of a 2009 referendum. See Michael Falcone, Maine Vote Repeals Gay Marriage Law, POLITICO.com (Nov. 4, 2009), http://www.politico. com/news/stories/1109/29119.html. In all, nine states and the District of Columbia now permit same-sex marriage. Although the initial process of recognizing same-sex marriage was prompted by judicial decisions interpreting state constitutions (as Congress foresaw in 1996), more recent gains have come via legislatures and at the polls through referenda.
Nor have the successes been limited to the marriage issue, as dramatically illustrated by the repeal of the military’s Don’t Ask Don’t Tell policy. See Don’t Ask Don’t Tell Repeal Act of 2010, Pub. L. No. 111-321, 124 Stat. 3515, 10 U.S.C. § 654 note. Even more broadly, the Human Rights Campaign, one of the nation’s leading gay-rights organizations, has been “ranked the second most successful political organization in the entire country by National Journal.” Human Rights Campaign Lauds 2008 Election Results, HRC.org (Nov. 4, 2008), http://www.hrc.org/press-releases/entry/humanrights-campaign-lauds-2008-election-results (citing Bara Vaida and Neil Munro, Interest Groups -

53
Reversal of Fortunes, Nat’l J., Nov. 11, 2006). And gays and lesbians represent nearly 20% of President Obama’s top fundraisers. Michelle Garcia & Andrew Harmon, Obama’s Power Gays, Advocate.com (Oct. 24, 2011), http://www.advocate.com/news/dailynews/2011/10/24/obamas-power-gays; Dan Eggen, The Influence Industry: Same-Sex Marriage Issue Shows Importance of Gay Fundraisers, Wash. Post (May 9, 2012), http://www.washingtonpost.com/ politics/same-sex-marriage-debate-many-of-obamastop-fundraisers-are-gay/2012/05/09/gIQASJYSDU_ story.html.
Last but not least, the decision of the President and Attorney General to stop defending and start attacking DOMA itself demonstrates the remarkable political clout of the same-sex marriage movement. As the Chief Judge of the Second Circuit remarked to the Department’s representative at oral argument, “your presence here is like an argument against your argument.” Appendix to Response in Support of Writ of Certiorari Before Judgment, No. 12-307, 37a (Oct. 10, 2012).
In short, gays and lesbians are one of the most influential, best-connected, best-funded, and bestorganized interest groups in modern politics, and have attained more legislative victories, political power, and popular favor in less time than virtually any other group in American history. Characterizing such a group as politically powerless would be wholly inconsistent with this Court’s admonition that a class should not be regarded as suspect when the group has some “ability to attract the attention of the lawmakers.” Cleburne, 473 U.S. at 445. Gays and lesbians not only have the

54
attention of lawmakers, they are winning many legislative battles. And the importance of this factor in the analysis cannot be gainsaid. This Court has never definitively determined which of the four factors is necessary or sufficient, but given that the ultimate inquiry focuses on whether a group needs the special intervention of the courts or whether issues should be left for the democratic process, the political strength of gays and lesbians in the political process should be outcome determinative here.
B. Whether a Married Couple Is of the Opposite Sex Is Relevant to the Government’s Interests in Recognizing Marriage.
This Court has also looked to the question whether a group has “distinguishing characteristics” relevant to the distinctions actually drawn. Whatever the relevance of homosexuality in any other context, the relevant distinguishing characteristic of same-sex couples is their propensity to engage in relationships that do not produce unplanned and unintended offspring. Citizens for Equal Prot., 455 F.3d at 86667 (quoting Cleburne, 445 U.S. at 441). And, as explained supra, the evolution of marriage as a response to the unique social concerns of the unintended and unplanned offspring of opposite-sex relationships makes this distinguishing characteristic of same-sex relationships highly relevant. Id. at 867; see supra at 44-47.
C. Sexual Orientation Is Not an “Immutable” Characteristic.
Sexual orientation differs in multiple dimensions from any previously recognized suspect or quasi-

55
suspect class. It is defined by a propensity to engage in a certain kind of conduct; the cause of that propensity is not well understood by science; sexual orientation is not determinable at birth; for at least some, sexual orientation is a fluid characteristic capable of changing over a person’s lifetime; and the proposed class is difficult to define.
As courts have recognized, homosexuality “differs fundamentally from those [characteristics] defining any of the recognized suspect or quasi-suspect classes …. The conduct or behavior of the members of a recognized suspect or quasi-suspect class has no relevance to the identification of those groups.” Woodward, 871 F.2d at 1076; Ben-Shalom, 881 F.2d at 464; accord High Tech Gays, 895 F.2d at 573-74. There is no precedent for creating a suspect class that is based on the class’ propensity to engage in a certain kind of conduct.
Not only is sexual orientation different from every recognized suspect class in that it is based on a propensity to engage in certain conduct, the cause of that propensity is not well understood. According to Ms. Windsor’s own expert, Dr. Letitia Peplau:
Currently, the factors that cause an individual to become heterosexual, homosexual, or bisexual are not well understood. Many theories have been proposed but no single theory has gained prominence or is definitively established by scientific research. Today, most social and behavioral scientists view sexual orientation as resulting from the interplay of biological, psychological, and social factors.

56

JA 500.

Thus, while “sex, like race and national origin, is

an immutable characteristic determined solely by

the accident of birth,” Frontiero v. Richardson, 411

U.S. 677, 686 (1973) (plurality), the same cannot be

said of sexual orientation. For some persons, sexual

orientation is fluid. And, as Dr. Peplau admits, a

person’s sexual orientation often cannot “be readily

categorized as heterosexual, homosexual, or perhaps

bisexual. In fact, human experience often defies

such clear-cut categories.” Linda D. Garnets &

Letitia Anne Peplau, A New Paradigm for Women’s

Sexual Orientation: Implications for Therapy, 24

Women & Therapy 111, 113 (2001). Instead,

according to the American Psychological Association,

sexual orientations form a “continuum, from

exclusive attraction to the other sex to exclusive

attraction to the same sex.” Am. Psychological

Ass’n, Answers to Your Questions: For a Better

Understanding of Sexual Orientation &

Homosexuality, http://www.apa.org/topics/sexuality/

orientation.aspx/.

Finally, when considering

homosexuality as a potential suspect class, “the

complexities involved merely in defining the term …

would prohibit a determination of suspect

classification.” Holloway v. Arthur Andersen & Co.,

566 F.2d 659, 663 (9th Cir. 1977) (declining to

recognize transsexuals as a suspect class).

D. The Histories of Discrimination Based on Race, Ethnicity, Sex, and Legitimacy Are Different.

Finally, each of the recognized suspect and quasisuspect classes—racial minorities, aliens, women, and those born out of wedlock—have suffered

57

discrimination for longer than history has been

recorded. In contrast, as this Court noted in

Lawrence, “there is no longstanding history in this

country of laws directed at homosexual conduct as a

distinct matter.” 539 U.S. at 568. Indeed, “the

concept of the homosexual as a distinct category of

person did not emerge until the late 19th century.”

Id. As Ms. Windsor’s own expert, Dr. George

Chauncey, has written, although “antigay

discrimination is popularly thought to have ancient

roots, in fact it is a unique and relatively short-lived

product of the twentieth century.” George

Chauncey, Why Marriage?: The History Shaping

Today’s Debate Over Gay Equality 14 (2004).

According to Dr. Chauncey, “[m]ost of the

[discrimination] was put in place between the 1920s

and 1950s, and most was dismantled between the

1960s and the 1990s.” Owen Keehnen, The Case for

Gay Marriage: Talking with Why Marriage? Author

George

Chauncey,

GLBTQ.com

(2004),

http://www.glbtq.com/sfeatures/

interviewgchauncey.html.

More important, unlike racial minorities and women, homosexuals as a class have never been politically disenfranchised—the kind of pervasive official discrimination that most clearly supports suspect class treatment by the courts. See United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938).10

10 Although heightened scrutiny is clearly inappropriate, DOMA could survive even under that more demanding standard. In our federalist system, it is surely an important interest for each sovereign to be able to address an issue as divisive and fast-moving as same-sex marriage for itself.

58
* * *
In sum, the traditional factors this Court has assessed in determining whether to recognize a new quasi-suspect or suspect class are absent when it comes to gays and lesbians. Perhaps most critically, gays and lesbians have substantial political power, and that power is growing. Victories at the ballot box that would have been unthinkable a decade ago have become routine. To be sure, those victories have not been uniform and have come first in “blue” states rather than “red” ones, but that is the nature of the political process. There is absolutely no reason to think that gays and lesbians are shut out of the political process to a degree that would justify judicial intervention on an issue as divisive and fastmoving as same-sex marriage. As Judge Straub observed, the definition of marriage is “an issue for the American people and their elected representatives to settle through the democratic process.” Supp. App. 83a.
Indeed, the democratic process has substantial advantages over constitutionalizing this issue. Same-sex marriage is being actively debated in legislatures, in the press, and at every level of government and society across the country. That is how it should be. These fora require participants on both sides to persuade those who disagree, rather than labeling them irrational or bigoted.
By contrast, courts “can intervene in this robust debate only to cut it short,” Supp. App. 83a, and only
DOMA is narrowly tailored to accomplish this important government interest by preventing one state’s decision from dictating the result for other states or the federal government.

59
by denouncing the positions of hundreds of Members of Congress who voted for DOMA, of the President who signed it, and of a vast swath of the American people as not just mistaken or antiquated, but as wholly irrational. That conclusion is plainly unwarranted as a matter of constitutional law, and judicially constitutionalizing the issue of same-sex marriage is unwarranted as a matter of sound social and political policy while the American people are so actively engaged in working through this issue for themselves. This Court should “permit[] this debate to continue, as it should in a democratic society.” Washington v. Glucksberg, 521 U.S. 702, 735 (1997).
CONCLUSION
For the foregoing reasons, the judgment of the court of appeals should be reversed.

60

January 22, 2013

Respectfully submitted,
PAUL D. CLEMENT Counsel of Record
H. CHRISTOPHER BARTOLOMUCCI NICHOLAS J. NELSON MICHAEL H. MCGINLEY BANCROFT PLLC 1919 M Street, N.W., Suite 470 Washington, D.C. 20036 (202) 234-0090 pclement@bancroftpllc.com
KERRY W. KIRCHER General Counsel
WILLIAM PITTARD Deputy General Counsel
CHRISTINE DAVENPORT Senior Assistant Counsel
TODD B. TATELMAN MARY BETH WALKER ELENI M. ROUMEL
Assistant Counsels OFFICE OF GENERAL COUNSEL UNITED STATES HOUSE OF REPRESENTATIVES 219 Cannon House Office Bldg. Washington, D.C. 20515 (202) 225-9700
Counsel for Respondent The Bipartisan Legal Advisory Group of the United States House of Representatives

 
 No. 12-307
In The

UNITED STATES, v.

Petitioner,

EDITH SCHLAIN WINDSOR, IN HER CAPACITY AS EXECUTOR OF THE ESTATE OF THEA CLARA SPYER, ET
AL., Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
BRIEF FOR COURT-APPOINTED AMICA CURIAE ADDRESSING JURISDICTION

Patricia A. Millett Ruthanne M. Deutsch Akin Gump Strauss Hauer & Feld LLP 1333 New Hampshire Ave, NW Washington, DC 20036 202-887-4000
Michael C. Small Akin Gump Strauss Hauer & Feld LLP 2029 Century Park East Suite 2400 Los Angeles, CA 90067 (310) 229-1000

Vicki C. Jackson Counsel of Record
1545 Massachusetts Avenue Cambridge, MA 02138 (617) 496-0555 vjackson@law.harvard.edu

QUESTIONS PRESENTED I. Whether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing in this case. II. Whether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case.
(i)

ii
TABLE OF CONTENTS
QUESTIONS PRESENTED......................................... i
INTERESTS OF THE AMICA CURIAE .................... 1
PROCEDURAL BACKGROUND ............................... 2
SUMMARY OF ARGUMENT ..................................... 6
I. BLAG LACKS ARTICLE III STANDING.............7
A. BLAG’s Generalized Claim of Injury Is Insufficient for Article III Standing As No Special Congressional Prerogatives Are At Stake .................................................................. 8
B. One House Lacks Standing to Assert an Injury to Congress ..........................................15
C. BLAG Was Not Authorized to Represent the Views of the House .........................................17
D. Separation of Powers Concerns Counsel Against Extending Chadha To Uphold BLAG’s Standing ............................................20
II. THE EXECUTIVE BRANCH’S AGREEMENT WITH THE DECISION BELOW THAT DOMA IS UNCONSTITUTIONAL DEPRIVES THIS COURT OF JURISDICTION...............................23
A. Chadha Does Not Support This Court’s Jurisdiction Here ............................................24
B. The United States’ Effort to Obtain Review of a Decision With Which it Agrees Presents No Case Or Controversy .................................28

iii
C. Even if Article III Injury Were Found, Prudential Standing Considerations Confirm This Court’s Lack of Jurisdiction. ...33
D. The Prevailing Party Rule Bars Appellate Review .............................................................38
CONCLUSION .......................................................... 40

iv
TABLE OF AUTHORITIES
CASES:
Allen v. Wright, 468 U.S. 737 (1984) .......................................... 8, 33
Alliance to End Repression v. Chicago, 820 F.2d 873 (7th Cir. 1987) .......................... 30, 32
Already LLC v. Nike, Inc., __ S. Ct. __, 2013 WL 85300 (Jan. 9, 2013) ......... 19
Alvarez v. Smith, 558 U.S. 87 (2009) ................................................ 19
Arizonans for Official English v. Arizona, 520 U.S 43 (1997) ........................................... 11, 16
ASARCO Inc. v. Kadish, 490 U.S. 605 (1989) .......................................passim
Bob Jones Univ. v. United States, 461 U.S. 574 (1983) .............................................. 28
Bowsher v. Synar, 478 U.S. 714 (1986) .............................................. 21
Buckley v. Valeo, 424 U.S. 1 (1976) .................................. 7, 13, 20, 21
Camreta v. Greene, 131 S. Ct. 2020 (2011) ...................................passim

v
Chadha v. INS, 634 F.2d 408 (9th Cir. 1980) ................................ 27
Cheng Fan Kwok v. INS, 392 U.S. 206 (1968) ........................................ 10, 11
Clinton v. New York, 524 U.S. 417 (1989) .............................................. 12
Coleman v. Miller, 307 U.S. 433 (1939) .............................................. 12
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006) .............................................. 22
Dames & Moore v. Regan, 453 U.S. 654 (1981) .............................................. 16
Deposit Guar. Nat’l Bank v. Roper, 445 U.S. 326 (1980) .................................. 38, 39, 40
Diamond v. Charles, 476 U.S. 54 (1986) ................................................ 32
Dickerson v. United States, 530 U.S. 428 (2000) .............................................. 25
Director, OWCP v. Perini N. River Assocs., 459 U.S. 297 (1983) ........................................ 25, 26
Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004) ............................................ 33, 37
FEC v. Akins, 524 U.S. 11 (1998) ................................................ 35

vi
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167 (2000) .............................................. 20
Glidden Co. v. Zdanok, 370 U.S. 530 (1962) .............................................. 26
Grupo Dataflux v. Atlas Global Grp., 541 U.S. 567 (2004) .............................................. 19
GTE Sylvania, Inc. v. Consumers Union of the United States, Inc., 445 U.S. 375 (1980) .............................................. 31
Gunn v. University Comm. to End War, 399 U.S. 383 (1970) .............................................. 39
Heckler v. Edwards, 465 U.S. 870 (1984) .................................. 15, 36, 37
Hohn v. United States, 524 U.S. 236 (1998) .............................................. 33
INS v. Chadha, 462 U.S. 919 (1983) .......................................passim
Karcher v. May, 484 U.S. 72 (1987) ................................................ 11
Keene Corp. v. United States, 508 U.S. 200 (1993) .............................................. 19
Lewis v. Casey, 518 U.S. 343 (1996) .............................................. 25

vii
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ................................ 7, 8, 15, 19
McGrain v. Daugherty, 273 U.S. 135 (1927) .............................................. 13
Metro Broad., Inc. v. FCC, 497 U.S. 547 (1990) .............................................. 25
Metropolitan Wash. Airports Auth. v. Citizens for the Abatement of Aircraft Noise, Inc., 501 U.S. 252 (1991) .............................................. 20
Mollan v. Torrance, 22 U.S. (1 Wheat.) 537 (1824) .............................. 19
Moore v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 47 (1971) ................................................ 31
Morrison v. Olson, 487 U.S. 654 (1988) .............................................. 14
Muskrat v. United States, 219 U.S. 346 (1911) .................................. 23, 28, 29
Myers v. United States, 272 U.S. 52 (1926) ................................................ 11
New York Tel. Co. v. Maltbie, 291 U.S. 645 (1934) .............................................. 39
Powell v. McCormack, 395 U.S. 486 (1969) ................................................ 9

viii
Princeton Univ. v. Schmid, 455 U.S. 100 (1982) .................................. 29, 30, 32
Raines v. Bird, 521 U.S. 811 (1997) .......................................passim
Reed v. County Comm’rs of Del. Co., Pa., 277 U.S. 376 (1928) ........................................ 17, 19
Ruotolo v. Ruotolo, 572 F.2d 336 (1st Cir. 1978)................................. 30
United States v. Alaska S.S. Co., 253 U.S. 113 (1920) .............................................. 32
United States v. Johnson, 319 U.S. 302 (1943) .............................................. 23
United States v. Lovett, 328 U.S. 303 (1946) ........................................ 10, 11
United States v. Providence Journal Co., 485 U.S. 693 (1988) .............................................. 24
United States v. Richardson, 418 U.S. 166 (1974) .......................................... 8, 35
United States v. Smith, 286 U.S. 6 (1932) ............................................ 11, 17
Valley Forge Christian Coll. v. Americans United for Separation of Church and State, Inc., 454 U.S. 464 (1982) .......................................... 9, 34

ix
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) ........................................ 16, 17
CONSTITUTION AND STATUTES:
U.S. CONST. Art. I, § 1 ............................................... 16
Defense of Marriage Act of 1996, Pub. L. No. 104-199, 110 Stat. 2419 ......................................... 2
1 U.S.C. § 7............................................................................ 4
2 U.S.C. § 130f..................................................................... 18 § 288b.................................................................... 18 § 288e .................................................................... 18
28 U.S.C. § 516...................................................................... 24 § 518...................................................................... 24 § 530D(b)(2) .......................................................... 18 § 1252 (1982) .................................................. 36, 40 § 1254.............................................................passim § 1291.............................................................. 36, 39 § 2403.......................................................... 3, 18, 19
Pub. L. No. 100-352, § 1, 102 Stat. 662 (1988) ......... 36
Pub. L. No. 249, 78th Cong., 2nd Sess., 58 Stat. 113 (1944) ............................................................. 18

x
RULES:
Fed. R. Civ. P. 24(a)(1).................................................................... 3 24(a)(2).................................................................... 3 24(b)(1)(A) ............................................................... 3
OTHER AUTHORITIES:
Fallon Jr., Richard H. et al., HART & WECHSLER’S FEDERAL COURTS AND THE FEDERAL SYSTEM (6th ed. 2009)........................... 32
Easterbrook, Frank H., Presidential Review, 40 CASE W. RES. L. REV. 905 (1990).......................... 14
H.R. Res. 386, 78th Cong., 1st Sess., 89 CONG. REC. 10882 (1943)................................................. 18
H.R. Res. 49, 97th Cong., 1st Sess. 127 CONG. REC. 1304 (1981)................................................... 17
H.R. Res. 5, 113th Cong., 1st Sess., 159 CONG. REC. H8 (2013)........................................................ 5
H.R. Rule II.8, 112th Cong. (rev. 2011) ................... 17
Roberts Jr., John G., Article III Limits on Statutory Standing, 42 DUKE L.J. 1219 (1993) .................................................................... 14

xi
S. Res. 40, 97th Cong., 1st Sess., 127 CONG. REC. 1032 (1981)................................................... 17

In The

No. 12-307

UNITED STATES, v.

Petitioner,

EDITH SCHLAIN WINDSOR, IN HER CAPACITY AS EXECUTOR OF THE ESTATE OF THEA CLARA SPYER,
ET AL., Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
BRIEF FOR COURT-APPOINTED AMICA CURIAE ADDRESSING JURISDICTION
INTERESTS OF THE AMICA CURIAE
This brief is submitted in response to the Court’s order of December 11, 2012, appointing counsel as amica curiae to brief and argue “in support of the positions that the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case, and that the Bipartisan Legal Advisory Group of the United States House of
(1)

2
Representatives lacks Article III standing in this case.”
PROCEDURAL BACKGROUND
1. In November 2010, Edith Windsor, as executor of the estate of Thea Clara Spyer, sued the United States in district court, seeking a tax refund of $363,053. JA149, 173. That amount represents the additional federal estate tax paid because the Defense of Marriage Act (“DOMA”), Pub. L. No. 104199, 110 Stat. 2419 (1996), forbade recognition of Windsor’s marriage to another woman and thus denied her the marital exemption to the federal estate tax. Windsor argued that DOMA is unconstitutional. JA170-172.
Three months later, the Attorney General notified Congress that he and “the President *** have concluded that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Section 3 of DOMA is unconstitutional.” JA185. The notification stated that the Executive Branch would continue to enforce DOMA, “consistent with the Executive’s obligation to take care that the laws be faithfully executed, unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law’s constitutionality.” JA192.
Following the Attorney General’s notification, the Bipartisan Legal Advisory Group of the House of Representatives (“BLAG”) voted 3-2 to intervene in the litigation to defend the constitutionality of

3
DOMA. JA195, 196 n.1. As its title suggests, BLAG is an “[a]dvisory” body, that is to be “consult[ed]” by the Speaker of the House, who gives “direction” to the General Counsel of the House, according to Rule II.8 of the Rules of the U.S. House of Representatives during all periods of this litigation. Id.
When BLAG moved to intervene in district court, the Department of Justice (“DOJ”), on behalf of the United States, argued that although BLAG lacked Article III standing, it was “unnecessary for BLAG to have an independent basis for standing” because the Executive Branch’s role “ensures the continuing existence of a justiciable case or controversy.” JA207-208. DOJ urged that BLAG’s intervention be limited to “present[ing] arguments,” leaving it to DOJ to “file appropriate motions, purely as a procedural matter, to ensure that” the court could consider arguments “on both sides of the constitutional issue” and would have “jurisdiction to enter judgment.” Id.
The court rejected BLAG’s argument that it was entitled to intervene as of right under Federal Rule of Civil Procedure 24(a)(1) and (b)(1)(A), ruling that BLAG was not the “United States,” which may intervene as of right under 28 U.S.C. § 2403, and “there is no statute explicitly authorizing intervention by the House (or any subgroup or representative thereof) to defend the constitutionality of a statute.” JA222 & n.2. The court then allowed BLAG to intervene as of right (and “as a full party”) under Rule 24(a)(2), because “BLAG has a cognizable interest in defending the enforceability of statutes the House has passed when the President declines to

4
enforce them” and had Article III standing. JA223, 226-227.
The district court subsequently granted summary judgment for Windsor, holding that Section 3 of DOMA, 1 U.S.C. § 7, was unconstitutional and awarding her $363,053. JA115.
2. The United States, represented by the DOJ, noticed an appeal. JA524. BLAG also noticed an appeal, JA522, and moved to dismiss DOJ’s appeal for lack of appellate standing because the United States “prevailed below.” JA527. DOJ opposed, arguing that “[b]ecause that judgment prevents the Executive Branch from taking enforcement action it would otherwise take, it is aggrieved by the judgment and has standing to appeal.” JA533. Prior to the Second Circuit’s decision, Windsor and the United States separately petitioned for certiorari before judgment.
On October 18, 2012, the court of appeals denied BLAG’s motion to dismiss and affirmed the district court. U.S. Supp. Br. App. at 3a. As relevant here, the Second Circuit explained: “Notwithstanding the withdrawal of its advocacy, the United States continues to enforce Section 3 of DOMA, which is indeed why Windsor does not have her money. The constitutionality of the statute will have a considerable impact on many operations of the United States.” Id. at 4a (citing INS v. Chadha, 462 U.S. 919, 931 (1983)).
3. On October 26, 2012 the United States filed a supplemental brief advising this Court of the

5
Second Circuit’s decision and suggesting that the Court “now consider the present petition as one for certiorari after judgment and, if it were to grant the petition, review the judgment of the court of appeals.” U.S. Supp. Br. at 7. Respondent Windsor asked the Court to grant the United States’ petition, Windsor Supp. Br. at 1, while BLAG opposed the request, arguing that certiorari should instead be granted in another case presenting the issue. BLAG Supp. Br. at 2.
On December 7, 2012, this Court granted the United States’ petition for writ of certiorari before judgment on the question of DOMA’s constitutionality, and added the two jurisdictional questions, which amica was later invited to brief and argue.
4. On December 28, 2012, BLAG filed a petition for writ of certiorari from the Second Circuit decision. And on January 3, 2013, the House of Representatives adopted a resolution “authoriz[ing]” the 113th Congress’ BLAG “to act as successor in interest” to the 112th Congress’ BLAG in “civil actions” in which BLAG had intervened during the 112th Congress to defend the constitutionality of DOMA Section 3, including this case. H.R. Res. 5, 113th Cong., §4(a)(1), 1st Sess., 159 CONG. REC. H8 (2013). The resolution further states that BLAG “continues to speak for, and articulate the institutional position of, the House in all litigation matters in which it appears, including in Windsor v. United States.”

6
SUMMARY OF ARGUMENT
I. BLAG lacks Article III standing. Congress itself would lack standing to defend the constitutionality of laws that do not concern its own specific prerogatives; the interest here in assuring that the law is enforced is a generalized one, insufficient for Article III injury. It is the Executive Branch, not Congress, that is obligated to “take Care” that laws are enforced. Moreover, any injury that might arise from nondefense of a law would be to the whole Congress, which one House cannot alone assert. In INS v. Chadha, 462 U.S. 919 (1983), a special legislative prerogative under the Line Item Veto Act was asserted and both houses intervened. Chadha should not be extended here, especially given Raines v Byrd, 521 U.S. 811 (1997). Finally, BLAG lacked authority to speak for the House at relevant times.
II. The United States’ agreement with the courts below (and with Windsor) deprives this Court of jurisdiction, because the United States suffers no injury sufficient to invoke Article III jurisdiction. An interest in obtaining a ruling from a higher court does not create standing. Even if the United States’ claim of “aggrievement” were sufficient for Article III, prudential concerns involving the Executive Branch’s assertion of the generalized interests of others should also preclude this Court from recognizing its standing. The jurisdictional statutes, which have changed since Chadha, reinforce the need to respect prudential limitations, if not in the court of appeals at least in this Court. Finally, the United States is a prevailing party, not within the exception of Camreta

7
v. Greene, 131 S. Ct. 2020 (2011), and thus cannot appeal.
I. BLAG LACKS ARTICLE III STANDING.
As this Court explained in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), the “doctrine of standing” is central to “setting apart the ‘Cases’ and ‘Controversies’ that are of the justiciable sort referred to in Article III ***. Though some of its elements express merely prudential considerations that are part of judicial self-government, the core component of standing is an essential and unchanging part of the case-or-controversy requirement of Article III,” id. at 560.
Article III’s standing requirements enforce and are reinforced by the Constitution’s separation-ofpowers principles. The separation of law-making from law-execution is a distinctive feature of our Constitution. And as part of this structural separation, this Court has held that the Constitution bars Congress from vesting itself with the power to appoint officers charged with executing federal laws, including through litigation, Buckley v. Valeo, 424 U.S. 1, 138-140 (1976). These general principles frame the congressional standing analysis.
BLAG lacks standing for at least three reasons. First, BLAG has suffered no injury to a legally cognizable interest beyond the diffuse, generalized interests of all citizens that duly enacted and constitutional laws be enforced; no special prerogatives of BLAG, the House or Congress are threatened. Second, if there were any distinct

8
legislative injury arising from the Executive Branch’s refusal to defend the constitutionality of this statute, that injury would afflict the Congress as a whole. A single house (or part thereof) does not have standing to assert that interest, and the Senate has not intervened. Third, BLAG is not the House, but an “[a]dvisory” body that lacked authority to represent the House when it moved to intervene, noticed its appeal to the Second Circuit, and petitioned this Court for certiorari.

A. BLAG’s Generalized Claim of Injury

Is Insufficient for Article III

Standing

As

No

Special

Congressional Prerogatives Are At

Stake

An irreducible component of Article III standing is a “concrete,” “personal injury,” “fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief.” Allen v. Wright, 468 U.S. 737, 751, 756 (1984). Yet BLAG asserts only a generalized interest in seeing statutes that Congress enacted implemented, an interest that is widely shared by the people at large. BLAG asserts no judicially cognizable, concrete injury to itself, to the House of Representatives or to Congress. In Lujan, 504 U.S. at 575-576, the Court underscored that “injury amounting only to the alleged violation of a right to have the Government act in accordance with law was not judicially cognizable.” This Court has repeatedly recognized that such a generalized interest is insufficient to confer standing. See, e.g., United States v. Richardson, 418 U.S. 166, 176-177 (1974).

9
“[A]ssertion of a right to a particular kind of Government conduct, which the Government has violated by acting differently, cannot alone satisfy the requirements of Art. III without draining those requirements of meaning.” Valley Forge Christian Coll. v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 483 (1982).
Members of Congress are not exempt from constitutional requirements of standing. They too must show a “personal stake,” a “particularized” injury, that is “legally and judicially cognizable,” to bring suit in federal courts. Raines v. Byrd, 521 U.S. 811, 819 (1997). Because the generalized interest in the constitutionality of its statutes does not confer standing on Congress or its members, this Court’s caselaw has upheld legislative standing only in situations where there is a concrete threat to the institutional prerogatives of the legislature or to the personal rights of its members, as in Powell v. McCormack, 395 U.S. 486 (1969), where a memberelect alleged that he was wronged when the House refused to seat him. Otherwise, neither legislators nor Congress nor its Houses – or their subparts – have standing.
In Chadha, this Court held that Congress was a proper party to defend the constitutionality of a statute that the Executive Branch would not defend.1
1 Although it did not use the word “standing,” Chadha’s (admittedly not crystalline) discussion repeatedly referred to Congress as a proper party and stated that its presence assured “concrete adverseness.” See 462 U.S. at 930 n. 5; 939-940. Cf. Raines, 521 U.S. at 818 (“The standing inquiry focuses on whether the plaintiff is the proper party[.]”).

10
Under the statute at issue, each House had authority to disallow decisions made by the INS under the law – known as the one-house veto. See 462 U.S. at 925. When the House of Representatives voted to invalidate the INS’s decision to suspend Chadha’s deportation, Chadha sought review, arguing that the legislative veto was unconstitutional. Id. at 928. When the Executive Branch declined to defend the constitutionality of this veto, the Houses of Congress defended the law, first as amici and, after the Ninth Circuit decision, as intervenors. Id. at 928, 930 n.5.
Accordingly, unlike this case, in Chadha the legal injury asserted by the intervening Houses went well beyond a generic, broadly held interest in the constitutionality of laws for their own sake. Instead, Chadha involved Congress’s effort to defend distinct, statutorily created powers of the Houses of Congress that were specifically, concretely and uniquely tied to the provisions of the particular statute the constitutionality of which was at issue.
Overbroad language in Chadha, however, suggested that congressional standing was more general and well-settled. See 462 U.S. at 940 (“We have long held that Congress is the proper party to defend the validity of a statute when an agency of government, as a defendant charged with enforcing the statute, agrees with plaintiffs that the statute is inapplicable or unconstitutional.”). But the two cases the Court cites in support of this proposition—United States v. Lovett, 328 U.S. 303 (1946) and Cheng Fan Kwok v. INS, 392 U.S. 206 (1968)—do not sustain it.

11
In Lovett, Congress appeared, not as a party or intervenor that requires standing, but “as amicus curiae.” 328 U.S. at 304 (“John C. Gall argued the cause for the Congress of the United States, as amicus curiae[.]”) (emphasis added).2 Cheng Fan Kwok is even less relevant, because it involved no congressional entity at all. Rather, because the parties both disagreed with the judgment below, the Court appointed an attorney, William H. Dempsey, not identified as having any connection to Congress, to defend that judgment as an amicus. See 392 U.S. at 210 n.9.3
In another line of cases, the Court has indicated that state legislatures or their officers may have standing to defend the constitutionality of state laws, depending on state law. See, e.g., Karcher v. May, 484 U.S. 72, 81-82 (1987); Arizonans for Official English v. Arizona, 520 U.S 43, 65 (1997). But because federal separation-of-powers requirements
2 In Lovett, the United States certiorari petition noted that DOJ had “been requested by the Special Counsel appointed by the subcommittee of the House Committee on Appropriations to file this petition,” and stated its agreement that “the questions presented are worthy of review on certiorari.” U.S. Pet. for Writ of Cert. at 9, 328 U.S. 303 (No. 809). 3 In United States v. Smith, 286 U.S. 6, 29-30 (1932), the Attorney General authorized the Senate to bring an action, in the name of the United States; that case too involved a special legislative prerogative – the asserted power of the Senate to withdraw confirmation of an executive branch officer who had already received his commission. In Myers v. United States, 272 U.S. 52 (1926), which also involved a claimed congressional prerogative, a member of the Senate was appointed only “as a friend of the Court,” id. at 176, to argue in support of the constitutionality of a federal statute that the Executive Branch argued was unconstitutional.

12
do not necessarily apply to the organization of state governments, judicially cognizable injuries for congressional and state legislators may differ.
Nor does Coleman v. Miller, 307 U.S. 433 (1939), support BLAG’s standing here. Not only did Coleman involve state legislators, but there was a special legislative prerogative at stake: voting on proposed constitutional amendments. State senators challenged whether the Lieutenant Governor, who cast a tie-breaking vote on whether to ratify a proposed amendment, was part of the legislature for purposes of U.S. Const. Art. V. Id. at 438, 441.
By contrast, in Raines this Court held that individual members of Congress lacked Article III standing to challenge the constitutionality of the Line Item Veto Act, which authorized the President to cancel piecemeal, and effectively repeal, the provisions of duly enacted laws. Raines, 521 U.S. at 815, 826; see Clinton v. New York, 524 U.S. 417, 438 (1989). Members of Congress claimed that the grant of this power to the President undermined the effectiveness of their votes. Raines, 521 U.S. at 825. The Court held, however, that this “abstract dilution of institutional legislative power” did not confer standing, unlike the concrete claim of flat-out “vote nullification at issue in Coleman.” Raines, 521 U.S. at 826. Emphasizing that claims of legislative standing must be carefully scrutinized, the Court explained that to find standing there “would require a drastic extension,” id., of Coleman. No such extension was warranted, however, because of the “vast difference between the level of vote nullification” in Coleman, and the “wholly abstract

13
and widely dispersed” claim of institutional injury alleged in Raines. Id. at 823, 826, 829.
BLAG’s claim of injury arising from the constitutional challenge to DOMA and the prospect of its invalidation as unconstitutional likewise falls short of Article III’s particularized injury requirement. In neither Raines nor here is there the kind of specific, concrete threat to any distinct legislative prerogative – whether it be the right of a state legislature to vote on constitutional amendments, or the power of the congressional houses to exercise a legislative veto – that past cases indicate could sustain legislative standing.4
When the Executive Branch declines to defend a law it has enforced, members of Congress suffer no distinct, judicially cognizable injury. Their votes are not nullified and the statute stands as enacted. BLAG seeks only to vindicate a “widely dispersed” interest – shared by citizens and legislators alike–in the constitutionality of a federal law.
The Court in Raines stressed the importance of a properly constrained approach to legislative standing, because of more general concerns about “decid[ing] whether an action taken by one of the other two branches of the Federal Government was
4 Congress has powers of investigation relating to its lawmaking functions, see Buckley, 424 U.S. at 137, that may lead it to become involved in litigation, e.g., to enforce subpoenas. Cf. McGrain v. Daugherty, 273 U.S. 135 (1927) (upholding congressional power to compel production of information germane to its legislative functions). No such congressional power is involved here.

14
unconstitutional,” and the “historical experience” of how inter-branch conflicts at the federal level were handled. See 521 U.S. at 819-820, 826-829. That Congress expressly authorized its members to file lawsuits challenging the Act’s constitutionality could not override basic Article III principles governing legislative standing. Id. at 815-816, 820 n.3. Here, too, whatever authorization BLAG may have obtained cannot overcome Article III standing barriers for lack of cognizable injury. 5
The Constitution provides Congress with many mechanisms to express disagreement with Executive non-defense decisions. In addition to Congress and its members appearing as amici, Congress may hold oversight hearings, or withhold confirmations or appropriations. See John G. Roberts, Jr., Article III Limits on Statutory Standing, 42 DUKE L.J. 1219, 1229 (1993); cf. Morrison v. Olson, 487 U.S. 654, 711 (1988) (Scalia, J., dissenting) (noting that Congress can use powers, like impeachment, if it disagrees with Executive enforcement decisions).
But it is the Executive Branch that is charged to “take Care that the Laws” are faithfully executed. Executive Branch decisions not to defend a law based on determinations of its unconstitutionality can function to promote a working constitutional system. Frank H. Easterbrook, Presidential Review, 40 CASE W. RES. L. REV. 905, 913-914, 928-929 (1990); see also
5 In Raines, the Court attached some significance to the fact that plaintiffs, though authorized to sue individually, had “not been authorized to represent their respective Houses ***,” id. at 829. But as argued below, BLAG did not have authorization to speak for the House, at least before January 2013.

15
Heckler v. Edwards, 465 U.S. 870, 873 n.2 (1984) (noting DOJ decision to stop enforcing a sex-based Social Security rule after concluding that it “could not be defended under the standards announced by [the] Court”). To allow standing based on an “undifferentiated public interest in executive officers” compliance with the law *** is to *** transfer from the President to the courts the Chief Executive's most important constitutional duty, to ‘take Care that the Laws be faithfully executed,’ Art. II, § 3.” Lujan, 504 U.S. at 577. Except where constitutional or statutory prerogatives of Congress or its Houses are threatened, Congress, its members and its bodies lack standing to litigate the constitutionality of the laws Congress enacts.
B. One House Lacks Standing to Assert an Injury to Congress
Even if it were possible to state a judicially cognizable legislative injury from Executive failure to defend a statute involving no special legislative prerogative, any legislative interest in the constitutionality of Acts of Congress would belong to the entire Congress, not just one house. Accordingly, both houses would have to assert that injury by moving to intervene. Chadha, for example, referred to the congressional intervenors as “Congress”: “[F]rom the time of Congress’ formal intervention, *** the concrete adverseness is beyond doubt. Congress is both a proper party to defend the constitutionality of § 244(c)(2) and a proper petitioner under 28 U.S.C. § 1254(1).” Chadha, 462 U.S. at 939; see also id. at 929 (“Both Houses of Congress contend ***”) (footnote omitted); cf. id at 930 n.5 (“The Senate

16
and House authorized intervention in this case. *** Both Houses are therefore proper ‘parties’[.]”). And in Arizonans for Official English, this Court described Chadha as holding that “Congress [was] a proper party to defend [a] measure’s validity where both Houses, by resolution, had authorized intervention in the lawsuit.” 520 U.S. 43, 65 n.20 (1997) (emphasis added).
Where one house declines to participate (as the Senate did here), Congress has not spoken, much less asserted any injury that this Court would be able to determine. It is, after all “a Congress” that is “vested” by the Constitution with “all legislative Powers herein granted.” U.S. CONST. Art. I, § 1. As “Congress” consists of “a Senate and House of Representatives,” id., there can be no judicially cognizable injury to Congress absent both houses’ action (except perhaps where a chamber-specific prerogative of one house is at issue).
To hold otherwise would make congressional interventions far more likely anytime the Executive declines to defend (or one House disagrees with how a law is being implemented), thereby increasing the risks of federal courts being called on to mediate what might be partisan disagreements between elected public officials. Permitting one-house standing to defend the constitutionality of any federal law is thus inconsistent with this Court’s repeated concern for the properly limited role of the courts: “the Framers ‘did not make the judiciary the overseer of our government.’” Dames & Moore v. Regan, 453 U.S. 654, 660 (1981) (quoting Youngstown Sheet &

17
Tube Co. v. Sawyer, 343 U.S. 579, 594 (1952) (Frankfurter, J., concurring)).
C. BLAG Was Not Authorized to Represent the Views of the House
BLAG lacked power to act even for one house of Congress. BLAG is not the House of Representatives; it is an “[a]dvisory” body, established by the internal rules of the House of Representatives. H.R. Rule II.8, 112th Cong. (2011). BLAG’s purpose is to be “consult[ed]” by the Speaker, who provides “direction” to the “function[ing]” of the General Counsel of the House, who in turn “provid[es] legal assistance and representation to the House.” Id. (emphasis added). These words invest BLAG with no authority to intervene as a party in any litigation, including this case when BLAG intervened in the courts below or even when BLAG filed its own certiorari petition. See Reed v. County Comm’rs of Del. Co., Pa., 277 U.S. 376 (1928) (finding Senate resolutions insufficient to authorize Senate committee’s resort to courts).6
The absence of authorization contrasts with Chadha, where both houses of Congress enacted resolutions authorizing intervention, and both houses intervened. See H.R. Res. 49, 97th Cong., 1st Sess., 127 CONG. REC. 1304 (1981); S. Res. 40, 97th Cong., 1st Sess., 127 CONG. REC. 1032 (1981). Likewise, in
6 Although each house has constitutional authority to make its own rules, where the rights of those outside a house – like Windsor or the Executive – are at stake, the interpretation of those rules becomes a matter for judicial determination. See Smith, 286 U.S. at 33.

18
Lovett (where Congress appeared only as an amicus), the House passed a resolution authorizing a special subcommittee “to appoint counsel to represent the United States” in defending the statute, H.R. Res. 386, 78th Cong., 1st Sess., 89 Cong Rec. 10882 (1943), and the two houses together enacted legislation concerning the terms of government employment of counsel appointed pursuant to the House resolution, Pub. L. No. 249, 78th Cong., 58 Stat. 113 (1944).
Moreover, while legislation clearly authorizes the Senate to intervene in litigation,7 no comparable legislation authorizes such action by the House. Nor was there any vote or resolution by the House as a whole during the pendency of this litigation in the lower courts. Even if the Court were prepared to recognize Article III injury to Congress from Executive nondefense of a law, at least as a prudential matter, see Raines, 521 U.S. at 820 n.3; ASARCO Inc. v. Kadish, 490 U.S. 605, 613 (1989), it should not do so without clear legislative authorization.8
7 See 2 U.S.C. § 288b (titled “Requirements for authorizing representation activity”); 2 U.S.C. § 288b(c) (authorizing intervention or appearance as amicus “only when directed to do so by a resolution adopted by the Senate”).
8 The statute establishing the House General Counsel’s Office, 2 U.S.C. § 130f, does not authorize the House to intervene but instead authorizes the entry of appearances notwithstanding local bar rules on attorney admission. And while 28 U.S.C. §530D(b)(2) requires the Attorney General to notify the Houses of Congress when the Justice Department decides not to defend the constitutionality of a federal statute so as to facilitate intervention, it does not of itself authorize intervention, in the way that 2 U.S.C § 288e does for the Senate and 28 U.S.C.

19

The authority that BLAG relied on in the lower courts, see JA196 n.1 (a House rule authorizing BLAG to be “consult[ed]” by the Speaker) falls far short of the authority this Court held insufficient in Reed. There, two detailed Senate resolutions authorizing an investigative committee to subpoena records (like ballots), did not empower committee members to go to court to compel production of documents relating to the election under investigation. 277 U.S. at 386-389.

The post hoc effort to authorize BLAG, by a

House resolution adopted on January 3, 2013, cannot

retroactively cure this defect.

Without

contemporaneous authority, it is difficult to

determine whether the House was aggrieved at all at

the time of BLAG’s intervention, appeal, and petition

to this Court. As this Court has emphasized, “an

‘actual controversy’ must exist,” both “‘at the time the

complaint is filed,’” and “through ‘all stages’ of the

litigation.” Already LLC v. Nike, Inc., __ S. Ct. __,

2013 WL 85300, at *4 (Jan. 9, 2013) (emphasis

added) (quoting Alvarez v. Smith, 558 U.S. 87, 92

(2009)). Federal courts’ jurisdiction ordinarily is

determined by the facts at the time the suit is filed,

see Mollan v. Torrance, 22 U.S. (9 Wheat.) 537, 539

(1824); Grupo Dataflux v. Atlas Global Grp., 541 U.S.

567, 570-71 (2004); Keene Corp. v. United States, 508

U.S. 200, 207 (1993). That general principle applies

to the requirement of standing. See Lujan, 504 U.S.

§ 2403 does for the United States. Unlike the Senate, the House is not a continuing body, and statutory authorization for intervention might be thought especially important.

20
at 569 n.4 (plurality opinion); Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 180 (2000) (referring to the need for standing at the time the lawsuit is filed).
The critical inquiry is thus whether BLAG had authority to litigate for the House at the outset of its intervention. It did not – nor at the time of appeal to the court of appeals or petition to this Court. The House cannot evade the requirements of standing at the outset and retroactively create jurisdiction in the Article III courts “nunc pro tunc.”
D. Separation of Powers Concerns Counsel Against Extending Chadha To Uphold BLAG’s Standing
To recognize BLAG’s standing risks undermining the basic constitutional structure separating law-making from law-execution, while increasing judicial power, as courts are asked to mediate inter-Branch disputes over what the Constitution or laws require. BLAG’s intervention cannot be easily reconciled with the propositions that executive acts must be done by or under the supervision of those properly appointed to serve outside of Congress, while law-making must be done in accord with bicameralism and presentment. See Metropolitan Wash. Airports Auth. v. Citizens for the Abatement of Aircraft Noise, Inc., 501 U.S. 252, 276 (1991).
In Buckley, this Court held that Federal Election Commission members appointed by members of Congress could not perform the functions

21
of “Officers of the United States,” including specifically conducting litigation “in the courts of the United States for vindicating public rights.” 424 U.S. at 140.9 Rejecting the argument that the FEC’s litigation functions were ancillary to Congress’ power to regulate elections, the Court declared: “A lawsuit is the ultimate remedy for a breach of the law, and it is to the President, and not to the Congress, that the Constitution entrusts the responsibility to ‘take Care that the Laws be faithfully executed.’” Id. at 138 (emphasis added). Under Article II of the Constitution, “[s]uch functions may be discharged only by persons who are ‘Officers of the United States’” appointed in accordance with the Appointments Clause, which does not provide for congressional appointment. Id. at 140.
Thus, “the Legislative Branch may not exercise executive authority by retaining the power to appoint those who will execute its laws,” Buckley, 424 U.S. at 119. Instead, “[o]nce Congress makes its choice in enacting legislation, its participation ends. Congress can thereafter control the execution of its enactment only indirectly – by passing new legislation.” Bowsher v. Synar, 478 U.S. 714, 733-34 (1986) (emphasis added, citations omitted). Congress may, of course, establish offices, outside of Congress, with independent litigating authority to enforce and defend federal law, as in Morrison, supra. But Congress may not seek to retain for itself such executive functions.
9 The FEC’s powers included the power “to initiate ***, defend, or appeal any civil action***.” Buckley, 424 U.S. at 166 (emphasis added).

22
In Chadha, this Court emphasized that, when a house of Congress acts, it presumptively acts in a legislative capacity, that is, with “the purpose and effect of altering the legal rights, duties, and relations of persons *** outside the Legislative Branch.” 462 U.S. at 952. If BLAG’s intervention was a legislative act, it was plainly not done through the bicameralism and presentment procedure required for such acts. If, on the other hand, BLAG’s action was not a “legislative” act, it is hard to square with Chadha’s observation that, “when the Framers intended to authorize either House of Congress to act alone and outside of its prescribed bicameral legislative role, they narrowly and precisely defined the procedure for such action.” Id. at 955.10
The question of standing is deeply connected to the “tripartite” structure of our constitutional government. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006) (quotation marks and citations omitted). Absent injury to special congressional prerogatives, this structure counsels that legislative standing should not be expanded beyond the circumstances of Chadha.
10 See also id. (noting four instances in which the Constitution authorizes one house to act alone). Participating in litigation as a party is not among them. See also note 4 above.

23

II. THE

EXECUTIVE

BRANCH’S

AGREEMENT WITH THE DECISION

BELOW

THAT

DOMA

IS

UNCONSTITUTIONAL DEPRIVES THIS

COURT OF JURISDICTION

The district court plainly had jurisdiction over Windsor’s lawsuit. Although the Executive Branch came to agree with her that DOMA is unconstitutional, its refusal to pay Windsor the estate tax refund injured her and assured a genuine “case-or-controversy” in the district court. Once that court’s judgment was entered, on the United States’ constitutional view, Windsor should have been paid. Instead, DOJ filed a notice of appeal. Now in the position of “the party attempting to invoke the federal judicial power,” ASARCO, 490 U.S. at 618, the United States had no Article III injury to present.

Article III’s case-or-controversy limits apply at every stage of the litigation, and to litigation with the United States. “‘No principle is more fundamental to the judiciary's proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies,’” Raines, 521 U.S. at 818 (citation omitted). Although the United States’ distinctively governmental interests may afford standing in circumstances denied private parties, it cannot ask Article III courts to resolve disputes unless they meet the case-or-controversy criteria. See Muskrat v. United States, 219 U.S. 346, 356 (1911); see also United States v. Johnson, 319 U.S. 302, 304-305 (1943).

24
Represented by the Executive Branch (as Article II’s “take Care” clause contemplates), and through the Justice Department (as Congress by statute provided, 28 U.S.C. §§ 516, 518; see United States v. Providence Journal Co., 485 U.S. 693 (1988), the United States agrees that the statute blocking Windsor’s refund is an unconstitutional denial of her rights; it agrees with the decision below that Windsor merits a refund. The United States thus offers no concrete injury to its legal interests from that judgment sufficient to invoke the jurisdiction of this Court.
This Court thus lacks jurisdiction. First, because the United States agrees with both Windsor and the court below, its appeal fails to present a “case or controversy” within the meaning of Article III. Second, even if the Executive Branch’s enforcement of the statute met core Article III requirements for standing and adverseness, prudential considerations support a finding of nonjusticiability, at least with respect to this Court’s jurisdiction. Finally, ordinary rules of appellate jurisdiction preclude appeals by prevailing parties, like the United States, which obtained below the very result it sought. And no prior case compels a different conclusion.
A. Chadha Does Not Support This Court’s Jurisdiction Here
To support its claim of Article III injury, the United States has relied on Chadha’s conclusion that the INS was “aggrieved by the Court of Appeals decision prohibiting it from taking action it would otherwise take.” 462 U.S. at 930; see, e.g., JA535-

25
536. Chadha and Lovett are the only prior cases known to counsel in which this Court exercised jurisdiction to decide the constitutionality of a federal statute that the Executive refused to defend, where that Branch appealed from a lower court judgment with which it agreed.11 In both cases, the Executive enforced a statute (while arguing for its unconstitutionality), resulting in injury to individuals who then brought constitutional challenges to court. Neither case supports this Court’s jurisdiction here.
In Lovett the Court did not address any question of justiciability relating to the parties. “[W]e have repeatedly held that the existence of unaddressed jurisdictional defects has no precedential effect.” Lewis v. Casey, 518 U.S. 343, 352 n.2 (1996) (citations omitted).12 Lovett also largely predates modern Article III case-orcontroversy jurisprudence, an additional reason that its exercise of jurisdiction cannot resolve the issue here. Moreover, in Lovett, unlike Chadha or here, this Court was the first Article III court seized of the constitutional question, because the Court of Claims at the time was not considered an Article III court.
11 In cases such as Myers, Buckley, Metro Broadcasting, Inc. v. FCC., 497 U.S. 547 (1990), and Dickerson v. United States, 530 U.S. 428 (2000), the United States was not the appealing party invoking this Court’s jurisdiction. In Morrison, the Independent Counsel sought review of an adverse judgment. In Smith, it was the Senate, acting in the name of the United States, that appealed; its position was adverse to both Smith and the judgment below. 12 Even when a series of cases entertain jurisdiction without addressing the question, the Court may find jurisdiction absent when that issue is joined. See Director, OWCP v. Perini N. River Assocs., 459 U.S. 297, 303 n.11 (1983).

26
See Glidden Co. v. Zdanok, 370 U.S. 530, 531-532 (1962) (Harlan, J.).
Chadha requires more analysis. In responding to arguments that the United States was not a proper party to appeal, the Court spoke only in statutory terms. See 462 U.S. at 930-931 & n.6. It was “for purposes of deciding whether the INS is ‘any party’ within the grant of [mandatory] appellate jurisdiction in [now-repealed 28 U.S.C.] § 1252” that the Court found the INS “sufficiently aggrieved by the Court of Appeals decision prohibiting it from taking action it would otherwise take.” Id. at 930. This Court repeatedly emphasized that it was construing Section 1252. See id. at 930-931 (“Congress intended that this Court take notice of cases that meet the technical prerequisites of § 1252 ***.”). It was for purposes of “the agency’s status as an aggrieved party under § 1252” that the outcome was not “altered by the fact that the Executive may agree with the holding that the statute in question is unconstitutional.” Id. at 931 (emphasis added). In discussing this statutory issue, the Court carefully avoided addressing the INS’s Article III standing,13 noting the presence of the congressional intervenors providing adversity. See id. at 931 n.6.
Later, the Court considered the House’s argument that the case in the Ninth Circuit was “not a genuine controversy” because Chadha and the INS agreed on the unconstitutionality of the one-House
13 Cf. Perini N. River Assocs., 459 U.S. 297 at 304 (“[Even if a party] has statutory authority to seek review in this Court, [it ] may not have Art. III standing ***.”).

27
veto. Chadha, 462 U.S. at 939; see Br. of U.S. House of Reps. at 46-47; Reply Br. of U.S. House of Reps. at 13. The Ninth Circuit had rejected as “untenable” the prospect “that all agencies could insulate unconstitutional orders and procedures from appellate review simply by agreeing that what they did was unconstitutional.” Chadha v. INS, 634 F.2d 408, 420 (9th Cir. 1980) (Kennedy, J.). This Court agreed: “it would be a curious result if *** a person could be denied access to the courts because the Attorney General of the United States agreed with the legal arguments asserted by the individual.” Chadha, 462 U.S. at 939. Referring to the period before intervention (which occurred after judgment in the Court of Appeals),14 the Court held, “there was adequate Art. III adverseness even though the only parties were the INS and Chadha ***. [T]he INS’s agreement with Chadha’s position does not alter the fact that the INS would have deported Chadha absent the Court of Appeals’ judgment.” Id.
This aspect of the Court’s holding sustained the justiciability of the case in the Ninth Circuit, where Chadha, who stood to be deported, and not the INS, was the party invoking the court’s jurisdiction. Thus, the Court wrote, we “agree with the Court of Appeals that ‘Chadha has asserted a concrete controversy, and our decision will have real meaning: if we rule for Chadha, he will not be deported; if we uphold § 244(c)(2), the INS will execute its order and
14 Chadha distinguished the periods before and after intervention by the Houses of Congress. 462 U.S. at 939 (stating that from the time of Congress’ formal intervention, “the concrete adverseness is beyond doubt”).

28
deport him.’” Chadha, 462 U.S. at 939-940 (internal citations omitted).15
What the Court in Chadha did not decide is whether the INS had Article III standing to appeal from the Ninth Circuit to this Court or whether, without the intervenors, a sufficient case or controversy would have been present on appeal to this Court.16 Chadha is therefore not dispositive of the justiciability of the United States’ petition here.
B. The United States’ Effort to Obtain Review of a Decision With Which it Agrees Presents No Case Or Controversy
The United States, though nominally a defendant below and a petitioner here, is in fact in agreement with both Windsor and the court below.17
15 While the last quoted statement might be read to refer not just to jurisdiction in the Ninth Circuit, but also to this Court’s own jurisdiction, that reading is difficult to reconcile with the Court’s unwillingness to reach the INS’s Article III standing earlier in its opinion. See id. at 931 n.6. If so read, it would be dictum, in light of the Court’s view of the effect of the intervenors’ participation. See id. at 939. 16 Chadha, at 940 n.12, also analogized the case-or-controversy issue to that presented in Bob Jones University v. United States, 461 U.S. 574 (1983). There, however, it was the University that sought review in this Court (like Chadha had in the Ninth Circuit); no question of appellate standing was present. Moreover, the United States, while largely agreeing with the University, was continuing to enforce the challenged regulations pursuant to a court order. See 461 U.S. at 585 n.9. 17 In Muskrat, this Court rejected a specific jurisdiction conferred by Congress to resolve disagreement over the constitutionality of certain federal statutes where the decision

29
Its only real interest here is in obtaining a precedent from a higher court. This interest, by the party “attempting to invoke the federal judicial power,” ASARCO, 490 U.S. at 618, is insufficient for Article III.
Princeton University v. Schmid, 455 U.S. 100 (1982) (per curiam), is instructive. Appellee Schmid was convicted of criminal trespass for leafleting in violation of University regulations. The New Jersey Supreme Court (after inviting Princeton’s intervention) reversed the conviction, concluding that university regulations violated the state constitution. Princeton sought review in this Court, arguing that the state court’s decision violated the University’s First Amendment rights. See id. at 101-102. The State joined in seeking review in this Court, but declined to argue either for or against the judgment of its state court; it asserted only an interest in knowing whether the state’s right-of-access law was constitutional. See id. at 102; see also Br. of Appellant State of New Jersey at 4 (No. 80-1576), 1981 WL 390035.
This Court dismissed the State’s appeal for want of jurisdiction, explaining:
[I]f the State were the sole appellant and its jurisdictional statement simply asked for
would resolve only an abstract question. See 219 U.S. at 348351, 360-62 (describing statute’s effort to obtain a judicial opinion without disposing of parties’ adverse claims to property). In this case, even more than in Muskrat, “[i]t is true the United States is made a defendant to this action, but it has no interest adverse to the claimants.” Id. at 361.

30 review and declined to take a position on the merits, we would have dismissed the appeal for want of a case or controversy. We do not sit to decide hypothetical issues or to give advisory opinions about issues as to which there are not adverse parties before us.”
Schmid, 455 U.S. at 102 (emphasis added). If, in Schmid, the Court lacked jurisdiction over an appeal where the State had suffered an adverse judgment below and noticed an appeal, but did not argue against the judgment, then the Court equally lacks jurisdiction here, where the United States obtained the very judgment it sought below, noticed an appeal, but continues to argue the court below was correct.18
The United States’ desire for this Court, rather than a lower court, to have the final word is not a sufficient stake for an Article III case or controversy. “No matter how desirable it may be to have a constitutional question settled, the resolution must await the concrete controversy, for only then does the judge have an adequate justification for giving an opinion.” Alliance to End Repression v. Chicago, 820 F.2d 873, 876 (7th Cir. 1987); see Ruotolo v. Ruotolo, 572 F.2d 336, 338 (1st Cir. 1978) (notwithstanding the government’s “strong interest in obtaining a
18 Schmid is not on all fours with this case. For one thing, the Court found Princeton’s appeal moot, because Princeton had adopted new and less restrictive regulations for outside leafleting. See 455 U.S. at 103. But this and other differences do not detract from the force of its analysis of jurisdiction over the State’s appeal.

31
ruling *** the desirability of an advisory opinion is not a substitute for justiciability”).19
Because the United States obtained the judgment it argued for below, see JA488, no “injury” to the United States was “caused” by that judgment, nor could this Court’s overturning of that judgment provide “redress” – indeed, the United States seeks affirmance of that judgment. “[T]here is no Art. III case or controversy when the parties desire ‘precisely the same result,’” GTE Sylvania, Inc. v. Consumers Union of the United States, Inc., 445 U.S. 375, 383 (1980) (quoting Moore v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 47, 48 (1971) (per curiam)).20 In Moore the parties were in agreement on the result they sought – “a holding that the anti-busing statute is constitutional,” which led this Court to hold that “[t]here is, therefore, no case or controversy within the meaning of Art. III of the Constitution.” 402 U.S. at 47-48. In Moore, the parties both disagreed with the judgment below; here the parties both agree with the judgment below, affording even less controversy for review.
Although the judgment for Windsor imposes a financial cost on the government, it is one the United
19 Government “confession of error” is quite distinct. Typically, the party injured by a lower court ruling invokes appellate jurisdiction and that injury remains until the judgment is overturned. Where the government confesses error, the parties seek to undo a judgment; here, the government agrees with the judgment below – and wants this Court also to agree. 20 In GTE the Court found that adversity remained because the government believed itself constrained by another court’s order from complying with plaintiffs’ FOIA request. See 445 U.S. at 383.

32
States agrees it is obligated to pay. It did not have to appeal: “Government counsel who becomes convinced that the other side deserves to prevail can settle a case before judgment or, if the government is seeking review, withdraw the appeal or other petition.” Richard H. Fallon Jr., et al., HART & WECHSLER’S FEDERAL COURTS AND THE FEDERAL SYSTEM 99 (6th ed. 2009). Even “the existence of monetary stakes is not enough to keep a suit alive, if the underlying question has been settled or does not concern the litigants.” Alliance to End Repression, 820 F.2d at 876.
The filing of a notice of appeal or petition for certiorari cannot foist jurisdiction on Article III courts, overcoming the lack of adversity between the United States and Windsor, the lack of injury to the United States, and the parties’ agreement with the lower court’s resolution of the “underlying question” of this lawsuit.21 However important that question is, and however great the public interest in its decision, federal courts can only decide it in the context of a real case or controversy. See, e.g., Raines, 521 U.S. at 818; United States v. Alaska S.S. Co., 253 U.S. 113, 116 (1920).
21 In Diamond v. Charles, 476 U.S. 54, 62-64 (1986), Illinois’ apparent acquiescence in a decision invalidating a state statute by not filing its own notice of appeal was found to deprive the Court of a case or controversy, even though Illinois’ stated interests in having the intervenor-appellant defend its statute were adverse to appellee. Illinois’ filing of a notice of appeal was a necessary condition for appellate standing – but, as Schmid implies, not a sufficient condition. See Schmid, 455 U.S. at 102; cf. ASARCO, 490 U.S. at 634-635 (Rehnquist, C.J., concurring in part and dissenting in part) (distinguishing necessary from sufficient conditions for federal jurisdiction).

33
C. Even if Article III Injury Were Found, Prudential Standing Considerations Confirm This Court’s Lack of Jurisdiction.22
In addition to the core elements of standing, the Court has recognized prudential principles, like “the general prohibition on a litigant’s raising another person’s legal rights, the rule barring adjudication of generalized grievances more appropriately addressed in the representative branches, and the requirement that a plaintiff’s complaint fall within the zone of interests protected by the law invoked.” Allen, 468 U.S. at 751. In applying these prudential limits to define the “outer dimensions” of standing “subject to the control of Congress,” ASARCO, 490 U.S. at 613, the Court has also recognized the relevance for standing of other jurisdictional rules in a “variety of contexts.” Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 13 n.5 (2004) (noting abstention doctrine and case concerning diversity jurisdiction).
22 Counsel was invited to argue that the government’s agreement “with the court below” deprives this Court of jurisdiction. The Court granted a petition for certiorari before judgment, but after the Court of Appeals had decided, leaving arguably ambiguous the Question’s reference to “court below.” Accordingly, counsel advances arguments both that any government appeal from the District Court is barred, and that even if the Second Circuit had jurisdiction, the petition to this Court is barred. (If there were no “[c]ase[] in” the Second Circuit, this Court would lack jurisdiction under 28 U.S.C. § 1254 (2006). Cf. Hohn v. United States, 524 U.S. 236, 241-42 (1998) (finding a “case in” the court of appeals, with “adversity as well as the other requisite qualities of a ‘case’”).

34
The United States has claimed to be “aggrieved” because the District Court’s judgment will prevent it from enforcing DOMA. Even if this Court were to agree that, by virtue of the Executive Branch’s decision to enforce but not defend DOMA, the United States has a sufficient stake to satisfy core Article III requirements, “prudential principles that bear on *** standing,” Valley Forge, 454 U.S. at 474, suggest that jurisdiction in this Court fails. The President having determined that the statute is unconstitutional, the Executive Branch can be understood no longer to have legally cognizable interests in enforcing that law. Instead, it can be understood to be seeking to vindicate the interests of others (analogous to “third parties”), such as the enacting Congress, and where those interests are widely shared, “generalized grievances.”
Prudential concerns are compounded when this Court is asked to decide on the constitutionality of actions of the co-equal Branches. When issues are litigated in the lower courts, the Article III judiciary as a whole has not taken a final position in opposition to the Congress or the President; it is possible that different lower courts may reach divergent results. Should a challenger to DOMA lose in the courts below and seek review in this Court, a clearly justiciable case could then be presented. To decide the issue in this case, however, would press beyond the boundaries of appellate standing. Although prudential objections may be overridden by clear legislation, in this case the governing jurisdictional statutes provide no basis for ignoring prudential principles.

35
Where the Executive adopts a posture of enforcing but not defending the constitutionality of a statute, it may do so out of regard for Congress, to allow the constitutionally independent Judiciary to adjudge Congress’ presumed view that the statute it passed was constitutional. But once an Article III court has given judgment for the plaintiff, agreeing with the Executive on the constitutional question, further pursuit of appellate rulings cannot ordinarily be justified by the Executive’s concern for the interests of the enacting legislature. Such interests in the continued validity and enforcement of a statute, which the Executive believes is unconstitutional, are more like claims of “harm to the ‘common concern for obedience to law’” that this Court has described as too generalized to support standing. FEC v. Akins, 524 U.S. 11, 23 (1998) (citation omitted). Once the judgment was entered for Windsor, there was no longer a necessity – in terms of protecting the constitutional rights of individuals,23 or having an independent court decide – for the Article III judiciary to speak further where the United States also agrees with the judgment.
It might be argued, nonetheless, that there are prudential reasons favoring the exercise of jurisdiction by the courts of appeals to obtain a ruling with stare decisis effect within the circuit. In cases involving the constitutionality of federal legislation, there are benefits—to the court system, the litigants and the government—in allowing a regional court of
23 Cf. Richardson, 418 U.S. at 192 (Powell, J., concurring) (noting the importance of jurisdiction to protect “the constitutional rights and liberties of individual citizens and minority groups”).

36
appeals to review district court decisions, thereby obviating the need for repetitive litigation of the same question. Congress’ decision to make appellate jurisdiction over final district court judgments mandatory, 28 U.S.C. § 1291 (2006), reflects the view that lower court judgments should be appealable as of right. Thus, it may be argued, the absence of conflict between the United States and Windsor should not, at least on prudential grounds, defeat the jurisdiction of the court of appeals.
But that reasoning has no application to review by this Court. The Court’s jurisdiction to review decisions like this one is now discretionary. See 28 U.S.C. § 1254(1) (2006). By contrast, at the time of Chadha, jurisdiction over the Ninth Circuit’s judgment was mandatory, under 28 U.S.C § 1252 (1982). Section 1252 manifested Congress’ judgment that whenever a lower court struck down the constitutionality of a federal statute in an action to which the United States or its agencies were a party, the case warranted Supreme Court review: such cases were “a category of important cases that the Court is not free to ignore”; they presented “the need for certainty and uniformity *** when an Act may have been declared unconstitutional”; and “the ‘decision on the constitutional question may affect the public at large *** [because of the nation’s] duty to all the citizens of securing to them their common rights.’” Edwards, 465 U.S. at 881-883 (footnotes and citation omitted).
In 1988 Congress repealed Section 1252, making review discretionary with this Court. Pub. L. No. 100-352, § 1, 102 Stat. 662 (1988). Cf. Edwards,

37
465 U.S. at 881-883 (stating that the section’s “concerns” about the Court’s deciding a “category of important cases” and about “certainty and uniformity” “are not implicated in cases in which the Government concedes statutory unconstitutionality by its decision not to appeal”). In this case, although the United States did appeal, it not only conceded but vigorously argued for unconstitutionality. With Congress’ repeal of mandatory jurisdiction, the permissive grant of jurisdiction found in 28 U.S.C. § 1254 weighs in favor of hewing to prudential limits on the exercise of jurisdiction where the United States seeks review of a judgment it actively sought in the lower courts. Cf. Newdow, 542 U.S. at 12-13 & n.5 (discussing domestic relations exception to federal jurisdiction as bearing on prudential standing)
Where an Article III court has discretionary jurisdiction, and the United States agrees with the other party and with the judgment below, but wants that higher court to decide the question, prudential standing considerations ordinarily militate against justiciability. In Camreta, however, this Court suggested that it may be more justified for this Court, than for a court of appeals, to review a judgment in favor of public official defendants at their behest, given the binding effects of circuit precedent. 131 S. Ct. at 2033 & n.7. But in that case the public officials were truly aggrieved by the decision below, because (though they were immunized from damages in that case) they disagreed with the lower court’s constitutional judgment that, if left untouched, barred their taking actions in their work that they considered constitutional. Id. at 2029-2030. Here, by contrast, given the United States’ agreement with the

38
constitutional reasoning of the courts below, it suffers no comparable harm from unreviewed lower court decisions.
A decision that, for prudential reasons, the United States lacks standing in this Court, would not necessarily preclude DOMA’s constitutionality from coming before this Court. If a lower court upholds the statute, the party challenging the statute would have standing to invoke the appellate jurisdiction of this Court for review. Awaiting such a case is consistent with this Court’s role in providing a sober second look, after time and reflection in the lower courts, on important constitutional issues. If all the courts of appeals were in agreement that the statute is unconstitutional, the necessity for decision by this Court would be greatly diminished, because a uniform rule would have been achieved without its intervention and the broader public functions of judicial review adequately served. As long as the dispute can be resolved in an Article III court, an independent judiciary can protect individual rights, without entertaining appeals by a party who agrees with the judgment below.
D. The Prevailing Party Rule Bars Appellate Review
“Ordinarily, only a party aggrieved by a judgment or order of a district court may exercise the statutory right to appeal therefrom. A party who receives all that he has sought generally is not aggrieved by the judgment affording the relief and cannot appeal from it,” Deposit Guar. Nat’l Bank v. Roper, 445 U.S. 326, 333 (1980) (citations omitted).

39
This ordinary rule applies both under 28 U.S.C. § 1291 and 28 U.S.C.§ 1254(1). Although not required by the certiorari statute, see Camreta, 131 S. Ct. at 2028, in both this Court and in the courts of appeals, this “rule[] of ‘federal appellate practice,’” id. at 2029 (quoting Deposit Guar., 445 U.S. at 333), ordinarily bars the exercise of jurisdiction at the behest of a party who has “receive[d] all that he has sought.” Deposit Guar., 445 U.S. at 333.24
Application of this rule does not depend solely on which party the judgment was nominally entered against. See, e.g., Camreta, 131 S. Ct. at 2028-2030. Although here the judgment was entered against the United States, the United States was, in an important sense, a “prevailing” party: indeed, the United States did not simply refuse to defend the statute but actively sought the judgment that was entered. See, e.g., JA488 (United States arguing that the District Court should “grant Plaintiff’s motion for summary judgment”). The United States obtained what it had asked the court below to provide; it was
24 Camreta described the rule against prevailing party appeals as one of “practice and prudence,” 131 S Ct at 2030, citing in direct support cases that appear to treat the rule as jurisdictionally constraining in character. See Gunn v. University Comm. to End War, 399 U.S. 383, 390 n.5 (1970) (“Even if the opinion *** of the District Court could be considered a denial of an injunction ***, the appellants could not appeal from an order in their favor.”); New York Tel. Co. v. Maltbie, 291 U.S. 645, 646 (1934) (“Appellant, having obtained this relief, is not entitled to prosecute an appeal from the decree in its favor ***.”). Camreta should thus be understood as creating an exception to an ordinary rule of federal jurisdiction barring appeals by prevailing parties, rather than as treating that long-established “rule” as entirely one of judicial discretion.

40
in this sense a prevailing party. Unlike the officials allowed to appeal from a favorable judgment in Camreta, the United States faces no adverse collateral consequences from lower court conclusions with which it disagreed, because the United States here agrees with the conclusions below.

Absent the special purposes underlying the former Section 1252,25 or the special circumstances of Camreta, more common-sense standards for determining who is a prevailing party should be utilized. Under those standards, the United States cannot appeal to this Court.

CONCLUSION

For the foregoing reasons the government’s agreement with the Court below that the statute is unconstitutional deprives this Court of jurisdiction, and BLAG lacks Article III standing.

Patricia A. Millett Ruthanne M. Deutsch Michael C. Small Akin Gump Strauss Hauer & Feld LLP

Respectfully submitted. Vicki C. Jackson
Counsel of Record

January 24, 2013
25 Chadha noted the rule of Deposit Guaranty in discussing the question of statutory jurisdiction under Section 1252, see 462 U.S. at 930, but did not apply it, in light of its interpretation of now-repealed statute Section 1252. See Part II.A, supra.

 
 No. 12-307

In the Supreme Court of the United States
__________
UNITED STATES, Petitioner,
v.
EDITH S. WINDSOR, et al., Respondents. __________
On Writ of Certiorari to the United States Court of Appeals for the Second Circuit __________

BRIEF AMICUS CURIAE OF UNITED STATES CONFERENCE OF CATHOLIC BISHOPS
IN SUPPORT OF RESPONDENT BIPARTISAN LEGAL ADVISORY GROUP, ADDRESSING THE
MERITS, AND SUPPORTING REVERSAL __________ ANTHONY R. PICARELLO, JR.* General Counsel JEFFREY HUNTER MOON Solicitor MICHAEL F. MOSES Associate General Counsel UNITED STATES CONFERENCE OF CATHOLIC BISHOPS 3211 Fourth Street, N.E. Washington, D.C. 20017 (202) 541-3300 apicarello@usccb.org Counsel for Amicus Curiae

January 29, 2013

*Counsel of Record

TABLE OF CONTENTS TABLE OF AUTHORITIES ....................................... ii INTEREST OF AMICUS............................................ 1 SUMMARY OF ARGUMENT .................................... 1 ARGUMENT ............................................................... 4 I. The Defense of Marriage Act Is Subject to
Rational Basis Review. ....................................... 4 A. There Is No Fundamental Right to
Marry a Person of the Same Sex................ 6 B. As Defined by Courts to Date, “Sexual
Orientation” Is Not a Classification That Should Trigger Heightened Scrutiny....... 10 II. Application of Stricter-Than-Rational Scrutiny to Classifications Based on Sexual Orientation Would Have Adverse Consequences in Other Areas of Law .............. 19 CONCLUSION ......................................................... 21
i

TABLE OF AUTHORITIES
Cases
Baehr v. Lewin, 852 P.2d 44 (Haw. 1993) ................ 7
Baker v. Nelson, 409 U.S. 810 (1972)................... 4,6,7
Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971) ........ 7
Ben-Shalom v. Marsh, 881 F.2d 454 (7th Cir. 1989), cert. denied, 494 U.S. 1004 (1990) ..................... 14
Blodgett v. Holden, 275 U.S. 142 (1927) .................... 4
Christian Legal Soc’y v. Martinez, 139 S. Ct. 2971 (2010) ................................................................... 12
Citizens for Equal Prot. v. Bruning, 455 F.3d 859 (8th Cir. 2006) .............................................................. 5
City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) ....................................................11,14,15,17
Commonwealth of Massachusetts v. U.S. Dep’t of Health & Human Servs., 682 F.3d 1 (1st Cir. 2012) ............................................5,6,16,19
Conaway v. Deane, 932 A.2d 571 (Md. 2007) .......... 10
Cook v. Gates, 528 F.3d 42 (1st Cir. 2008), cert. denied sub nom., Pietrangelo v. Gates, 129 S. Ct. 2763 (2009). ................................................................... 5
Davis v. Prison Health Servs., 679 F.3d 433 (6th Cir. 2012)....................................................................... 5
Frontiero v. Richardson, 411 U.S. 677 (1973) ....... 11
ii

Goodridge v. Dep’t of Public Health, 798 N.E.2d 941 (Mass. 2003) .......................................................... 8
Graham v. Richardson, 403 U.S. 365 (1971) ........... 11
Heller v. Doe, 509 U.S. 312 (1993) ............................ 4
Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006) ....... 6
High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563 (9th Cir. 1990) ......................... 12,14
Hunt v. Ake, No. 8:04-cv-01852-JSM-TBM (M.D. Fla. Jan. 20, 2005) ....................................................... 6
Jackson v. Abercrombie, No. 11-00734 ACK-KSC, 2012 WL 3255201 (D. Haw. Aug. 8, 2012) ....................................................................6,8,10,17
Johnson v. Johnson, 385 F.3d 503 (5th Cir. 2004) ... 5
In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004) ............................................................................. 6,7
Kerrigan v. Comm’r of Pub. Health, 957 A.2d 407 (Conn. 2008) .......................................................... 8
Korematsu v. United States, 323 U.S. 214 (1944) ... 11
Lalli v. Lalli, 439 U.S. 259 (1978) ........................... 11
Lawrence v. Texas, 539 U.S. 558 (2003) ................. 4,9
Lewis v. Harris, 908 A.2d 196 (N.J. 2006) ............. 10
Lofton v. Sec’y of Dep’t of Children & Family Servs., 358 F.3d 804 (11th Cir. 2004), cert. denied, 543 U.S. 1081 (2005) ................................................ 5,9
iii

Loving v. Virginia, 388 U.S. 1 (1967)............... 9,10,11 Lui v. Holder, No. 2:11-cv-01267 (C.D. Cal. Sept. 28,
2011) ...................................................................... 6 Lyng v. Castillo, 477 U.S. 635 (1986) ...................... 11 Maynard v. Hill, 125 U.S. 190 (1888) ...................... 9 Miss. Univ. for Women v. Hogan, 458 U.S. 718
(1982) .................................................................. 11 Murphy v. Ramsey, 114 U.S. 15 (1885) .................... 9 Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012) .......... 5 Peterson v. Bodlovich, No. 99-3150, 2000 WL 702126
(7th Cir. May 26, 2000) ........................................ 5 Plyler v. Doe, 457 U.S. 202 (1982) ..................... 12,16 Price-Cornelison v. Brooks, 524 F.3d 1103 (10th Cir.
2008) ...................................................................... 5 Romer v. Evans, 517 U.S. 620 (1996) ................... 4,17 Rostker v. Goldberg, 453 U.S. 57 (1981) ................... 4 San Antonio Sch. Dist. v. Rodriguez, 411 U.S. 1
(1973) .................................................................. 11 Seegmiller v. LaVerkin City, 528 F.3d 762 (10th
Cir. 2008) ............................................................ 10 Sevcik v. Sandoval, No. 2:12-cv-00578-RCJ-PAL,
2012 WL 5989662 (D. Nev. Nov. 26, 2012) ... 15,20
iv

Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942) .................................................................... 9
Smelt v. County of Orange, 374 F.Supp.2d 861 (C.D. Cal. 2005), aff’d in part and vacated in part, 447 F.3d 673 (9th Cir. 2006), cert. denied, 549 U.S. 959 (2006) .................................................................... 6
Standhardt v. Superior Court, 77 P.3d 451 (Ariz. App. 2003) ...................................................................... 7
Steffan v. Perry, 41 F.3d 677 (D.C. Cir. 1994) .......... 5
Thomasson v. Perry, 80 F.3d 915 (4th Cir.), cert. denied, 519 U.S. 948 (1996) ................................. 5
Tigner v. Texas, 310 U.S. 141 (1940) ...................... 16
Torres-Barragan v. Holder, No. 2:09-cv-08564 (C.D. Cal. Apr. 30, 2010) ................................................ 6
U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528 (1973) 17
Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009) ........ 8
Walters v. Nat’l Ass’n of Radiation Survivors, 473 U.S. 305 (1985) ...................................................... 4
Washington v. Glucksberg, 521 U.S. 702 (1997) 2,6,10
Wilson v. Ake, 354 F.Supp.2d 1298 (M.D. Fla. 2005) 6
Windsor v. United States, 699 F.3d 169 (2d Cir. 2012) ......................................................................4,5,6,13
Witt v. Dep’t of Air Force, 527 F.3d 806 (9th Cir. 2008) ................................................................................ 5
v

Woodward v. United States, 871 F.2d 1068 (Fed. Cir. 1989), cert. denied, 494 U.S. 1003 (1990) ....... 5,12
Zablocki v. Redhail, 434 U.S. 374 (1978) .................. 9
State Constitutions ALA. CONST. amend. 774(b) ....................................... 7 ALASKA CONST. art. I, § 25 ........................................ 7 ARIZ. CONST. art. XXX, § 1 ........................................ 7 ARK. CONST. amend. 83, § 1 ...................................... 7 CAL. CONST. art. I, § 7.5 ............................................ 7 COLO. CONST. art. II, § 31 ......................................... 7 FLA. CONST. art. I, § 27 ............................................. 7 GA. CONST. art. I, § IV, ¶ I(a) .................................... 7 HAW. CONST. art. I, § 23 ............................................ 7 IDAHO CONST. art. III, § 28 ....................................... 7 KAN. CONST. art. XV, § 16 ......................................... 7 KY. CONST. § 233A .................................................... 7 LA. CONST. art. XII, § 15 ........................................... 7 MICH. CONST. art. I, § 25 .......................................... 7 MISS. CONST. art. XIV, § 263A .................................. 7
vi

MO. CONST. art. I, § 33 .............................................. 7 MONT. CONST. art. XIII, § 7 ...................................... 7 NEB. CONST. art. I, § 29 ............................................ 7 NEV. CONST. art. I, § 21 ............................................ 7 N.C. CONST. art. XIV, § 6 .......................................... 7 N.D. CONST. art. XI, § 28 .......................................... 7 OHIO CONST. art. XV, § 11 ........................................ 7 OKLA. CONST. art. II, § 35(A) .................................... 7 OR. CONST. art. XV, § 5a ........................................... 7 S.C. CONST. art. XVII, § 15 ....................................... 7 S.D. CONST. art. XXI, § 9 .......................................... 7 TENN. CONST. art. XI, § 18 ........................................ 7 TEX. CONST. art. I, § 32 ............................................. 7 UTAH CONST. art. I, § 29(1) ....................................... 7 VA. CONST. art. I, § 15-A ........................................... 7 WIS. CONST. art. XIII, § 13 ........................................ 7
State Statutes and Referenda D.C. CODE § 46-401 (2010) ......................................... 8 DEL. CODE ANN. tit. 13, § 101(a) (2011) .................... 7
vii

HAW. REV. STAT. § 572-1 (2012) .............................. 7,8 750 ILL. COMP. STAT. 5/212(a)(5) (2011) .................... 8 IND. CODE § 31-11-1-1 (2012) ..................................... 8 MD. CODE ANN., FAM. LAW, § 2-201 (approved by
voters Nov. 2012) .................................................. 8 ME. REV. STAT. ANN. tit. 19-A, § 650-A (approved by
voters Nov. 2012) .................................................. 8 MINN. STAT. § 517.03 (2012) ...................................... 8 NEV. REV. STAT. ANN. § 122A.210(1) (2011) ............ 20 N.H. REV. STAT. ANN. § 457:1-a (2010) ...................... 8 N.Y. DOM. REL. LAW § 10-a (McKinney 2012) ........... 8 23 PA. CONS. STAT. § 1704 (2011) .............................. 8 VT. STAT. ANN. tit. 15, § 8 (2009) ............................... 8 W. VA. CODE § 48-2-104(c) (2012) .............................. 8 W. VA. CODE § 48-2-603 (2012) ................................. 8 WASH. REV. CODE § 26.04.010 (approved by voters
Nov. 2012) ............................................................ 8
Other Authorities 142 Cong. Rec. 17093-94 (1996) (House) ................... 8 142 Cong. Rec. 22467 (1996) (Senate) ....................... 8
viii

Congregation for the Doctrine of the Faith, Some Considerations Concerning the Response to Legislative Proposals on the Non-discrimination of Homosexual Persons (July 22, 1992). ............. 12
ix

INTEREST OF AMICUS
The United States Conference of Catholic Bishops (“USCCB” or “Conference”) is a nonprofit corporation, the members of which are the Catholic Bishops in the United States.1 The USCCB advocates and promotes the pastoral teaching of the U.S. Catholic Bishops in such diverse areas of the nation’s life as the free expression of ideas, fair employment and equal opportunity for the underprivileged, protection of the rights of parents and children, the sanctity of life, and the nature of marriage. Values of particular importance to the Conference include the promotion and defense of marriage, the protection of the First Amendment rights of religious organizations and their adherents, and the proper development of the nation’s jurisprudence on these issues.
We submit this brief on the merits in support of the Bipartisan Legal Advisory Group, and urge this Court to reverse the judgment of the Court of Appeals below and to uphold the Defense of Marriage Act.
SUMMARY OF ARGUMENT
Legislation challenged on equal protection grounds is subject to rational basis review as long as it does not infringe upon a fundamental right or involve a suspect or quasi-suspect classification. The
1 Pursuant to Supreme Court Rule 37.6, counsel for amicus state that they authored this brief, in whole, and that no person or entity other than amicus made a monetary contribution toward the preparation or submission of this brief. All parties have consented to the filing of this brief, and their letters of consent have been filed with the Clerk of the Court.
1

Defense of Marriage Act (“DOMA”) does not infringe upon a fundamental right, and involves neither a suspect nor quasi-suspect classification. It is therefore subject to rational basis review.
There is no fundamental right to marry a person of the same sex. Such a claim must be rejected because it does not satisfy the test to which this Court adheres in determining whether an asserted right is fundamental. Specifically, civil recognition of same-sex relationships is not deeply rooted in the Nation’s history and tradition—quite the opposite is true. Nor can the treatment of such relationships as marriages be said to be implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed. Windsor’s claim also cannot fairly be characterized as part of a generalized “right to marry.” This Court’s decisions describing marriage as a fundamental right plainly contemplate the union of one man and one woman. In addition, a generalized claim of a right to marry in this case does not satisfy the requirement, articulated in Washington v. Glucksberg, 521 U.S. 702, 721 (1997), of a “careful” or particularized description of the asserted interest.
This case involves no suspect or quasi-suspect classification. This Court has accorded heightened scrutiny to only a small and discrete set of classifications, to which persons in same-sex relationships bear no relation and whose qualifying characteristics they do not share. None of the suspect or quasi-suspect classifications is defined by conduct; Windsor’s involvement in a past homosexual relationship, by contrast, is the product of her own voluntary choice. Likewise, she is not a member of a
2

politically powerless group needing protection against majoritarian impulses. To the contrary, the last two decades have witnessed far-reaching changes in how the law treats persons in same-sex relationships, changes that belie any claim of political powerlessness.
Application of heightened scrutiny in this case would not only have a distorting effect on this Court’s equal protection jurisprudence as a whole, but would undermine the defense of state laws that define marriage as the union of one man and one woman, or that otherwise involve a classification based on “sexual orientation.” Such a ruling would compromise the ability of states to accommodate religious and moral objections to homosexual conduct on the part of employers and individuals. In the end, a decision applying heightened scrutiny would seriously impede democratic solutions to questions about the legal treatment of persons in same-sex relationships.
3

ARGUMENT
I. The Defense of Marriage Act Is Subject to Rational Basis Review.2
“Judging the constitutionality of an Act of Congress is properly considered ‘the gravest and most delicate duty that this Court is called upon to perform.’” Walters v. Nat’l Ass’n of Radiation Survivors, 473 U.S. 305, 319 (1985) (quoting Rostker v. Goldberg, 453 U.S. 57, 64 (1981) (quoting Blodgett v. Holden, 275 U.S. 142, 148 (1927))). This Court has therefore applied rational basis review to laws unless they infringe a fundamental right or employ a suspect classification. See Heller v. Doe, 509 U.S. 312, 320 (1993).
Although this Court has never squarely addressed whether a classification based on “sexual orientation” is suspect or trenches on a fundamental right, the Court has nonetheless used the rational basis test when reviewing laws that classify on that basis. Lawrence v. Texas, 539 U.S. 558, 578 (2003); Romer v. Evans, 517 U.S. 620, 631-32 (1996).
2 We agree with the dissent in the Court of Appeals below that invalidation of DOMA is precluded by Baker v. Nelson, 409 U.S. 810 (1972). See Windsor v. United States, 699 F.3d 169, 192-95 (2d Cir. 2012) (Straub, J., dissenting). Briefly, if states do not run afoul of the Equal Protection Clause when they define marriage as the union of one man and one woman, as Baker holds, then neither does the federal government run afoul of equal protection guarantees when it so defines marriage for purposes of federal programs. Rejection of Baker would also upset the reliance interests of an overwhelming majority of states that, subsequent to Baker, have defined marriage as the union of one man and one woman. See note 5, infra, and accompanying text.
4

The lower courts have addressed the question directly, and every federal court of appeals to do so— with only two exceptions, including in the present case3—has concluded that rational basis is the appropriate standard for reviewing such laws. Perry v. Brown, 671 F.3d 1052, 1082, 1086-90 (9th Cir. 2012); id. at 1100-01 (Smith, J., concurring in part and dissenting in part); Davis v. Prison Health Servs., 679 F.3d 433, 438 (6th Cir. 2012); Witt v. Dep’t of Air Force, 527 F.3d 806, 821 (9th Cir. 2008); PriceCornelison v. Brooks, 524 F.3d 1103, 1113-14 & n.9 (10th Cir. 2008); Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 866-867 (8th Cir. 2006); Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004); Lofton v. Sec’y of Dep’t of Children & Family Servs., 358 F.3d 804, 818 & n.16 (11th Cir. 2004), cert. denied, 543 U.S. 1081 (2005); Peterson v. Bodlovich, No. 99-3150, 2000 WL 702126, at *2 (7th Cir. May 26, 2000); Thomasson v. Perry, 80 F.3d 915, 927-928 (4th Cir.), cert. denied, 519 U.S. 948 (1996); Steffan v. Perry, 41 F.3d 677, 684-685 (D.C. Cir. 1994); Woodward v. United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989), cert. denied, 494 U.S. 1003 (1990).
Consistent with this case law, and as a number of courts have held, DOMA too is subject to rational
3 The Second Circuit applied intermediate scrutiny to strike down DOMA. Windsor v. United States, 699 F.3d at 176, 185. Months earlier, the First Circuit had applied “intensified scrutiny”—a level of review more rigorous than rational basis review but less rigorous than intermediate scrutiny—to strike down DOMA. Commonwealth of Massachusetts v. U.S. Dep’t of Health & Human Servs., 682 F.3d 1, 10 (1st Cir. 2012); but see Cook v. Gates, 528 F.3d 42, 61 (1st Cir. 2008) (applying rational basis review to the military’s “don’t ask, don’t tell” policy), cert. denied sub nom., Pietrangelo v. Gates, 129 S. Ct. 2763 (2009).
5

basis review. Smelt v. County of Orange, 374 F.Supp.2d 861, 879 (C.D. Cal. 2005), aff’d in part and vacated in part for lack of standing, 447 F.3d 673 (9th Cir. 2006), cert. denied, 549 U.S. 959 (2006); Wilson v. Ake, 354 F.Supp.2d 1298, 1308 (M.D. Fla. 2005); Hunt v. Ake, No. 8:04-cv-01852-JSM-TBM (M.D. Fla. Jan. 20, 2005); In re Kandu, 315 B.R. 123, 144 (Bankr. W.D. Wash. 2004); Lui v. Holder, No. 2:11-cv01267 (C.D. Cal. Sept. 28, 2011); Torres-Barragan v. Holder, No. 2:09-cv-08564 (C.D. Cal. Apr. 30, 2010). An analysis of the relevant factors reveals that this conclusion is sound.
A. There Is No Fundamental Right to Marry a Person of the Same Sex.4
A claimed right is fundamental for constitutional purposes only if two conditions are met: the asserted right is (a) “deeply rooted in this Nation’s history and tradition” and (b) “implicit in the concept of ordered liberty” such that “neither liberty nor justice would exist” if it were sacrificed. Glucksberg, 521 U.S. at 720-21. The law’s historic treatment of marriage as the union of one man and one woman belies any conclusion that there is a fundamental right to marry a person of the same sex. Jackson v. Abercrombie, No. 11-00734 ACK-KSC, slip op. at 63-66, 2012 WL 3255201 at *23-26 (D. Haw. Aug. 8, 2012); Hernandez v. Robles, 855 N.E.2d 1, 9 (N.Y. 2006); In re Kandu,
4 The argument that the present claim is foreclosed by Baker, see note 2, supra, is particularly strong with respect to any claim that there is a “fundamental right” to marry a person of the same sex. See Commonwealth of Massachusetts, 682 F.3d at 8 (finding that Baker precludes any arguments that “rest on a constitutional right to same-sex marriage”), quoted in Windsor, 699 F.3d at 178 n.1.
6

315 B.R. at 140; Standhardt v. Superior Court, 77 P.3d 451, 460 & n.14 (Ariz. App. 2003), and cases cited therein; Baker v. Nelson, 191 N.W.2d 185, 186 (Minn. 1971), dismissed for want of a substantial federal question, 409 U.S. 810 (1972). Far from it, the legal definition of marriage as the union of one man and one woman has been the ubiquitous norm in Western cultures for millennia. Questions about that definition in relation to persons in same-sex relationships began to emerge in this country only in the last two decades, beginning with Baehr v. Lewin, 852 P.2d 44 (Haw. 1993). Faced with those emerging questions, and to uphold the definition of marriage as the union of one man and one woman, 37 states, the vast majority by state constitutional amendment, explicitly reaffirmed the legal definition of marriage as the union of one man and one woman.5 These
5 From 1998 on, thirty States adopted such amendments. ALA. CONST. amend. 774(b); ALASKA CONST. art. I, § 25; ARIZ. CONST. art. XXX, § 1; ARK. CONST. amend. 83, § 1; CAL. CONST. art. I, § 7.5; COLO. CONST. art. II, § 31; FLA. CONST. art. I, § 27; GA. CONST. art. I, § IV, ¶ I(a); IDAHO CONST. art. III, § 28; KAN. CONST. art. XV, § 16; KY. CONST. § 233A; LA. CONST. art. XII, § 15; MICH. CONST. art. I, § 25; MISS. CONST. art. XIV, § 263A; MO. CONST. art. I, § 33; MONT. CONST. art. XIII, § 7; NEB. CONST. art. I, § 29; NEV. CONST. art. I, § 21; N.C. CONST. art. XIV, § 6; N.D. CONST. art. XI, § 28; OHIO CONST. art. XV, § 11; OKLA. CONST. art. II, § 35(A); OR. CONST. art. XV, § 5a; S.C. CONST. art. XVII, § 15; S.D. CONST. art. XXI, § 9; TENN. CONST. art. XI, § 18; TEX. CONST. art. I, § 32; UTAH CONST. art. I, § 29(1); VA. CONST. art. I, § 15-A; WIS. CONST. art. XIII, § 13. Another state, Hawaii, adopted a constitutional amendment in 1998 giving the legislature “the power to reserve marriage to opposite-sex couples.” HAW. CONST. art I, § 23. Between 1996 and 2004, Hawaii and six States having no state constitutional amendment on the precise question adopted statutes, currently in effect, defining marriage as the union of one man and one woman. DEL. CODE ANN. tit. 13, § 101(a) (2011); HAW. REV.
7

developments were foreshadowed by DOMA, which was passed in 1996 by overwhelming bipartisan majorities of Congress and was signed into law by President Clinton.6 Today, only a minority of states and the District of Columbia have redefined marriage to include two persons of the same sex.7
Nor can a right to marry a person of the same sex be shoehorned into a generalized “right to marry.” Jackson, supra, slip op. at 59-63, 2012 WL 3255201 at *23-25, and cases cited therein. For well over a century, this Court has held that marriage is a fundamental right, but those decisions, which expressly reference the link between marriage and procreation, make clear that by “marriage,” the Court
STAT. § 572-1 (2012); 750 ILL. COMP. STAT. 5/212(a)(5) (2011); IND. CODE § 31-11-1-1 (2012); MINN. STAT. § 517.03 (2012); 23 PA. CONS. STAT. § 1704 (2011); W. VA. CODE §§ 48-2-104(c), 48-2603 (2012).
6 The vote in the House was 342-67 in favor, and in the Senate 85-14 in favor. 142 Cong. Rec. 17093-94 (1996) (House); id. at 22467 (Senate).
7 Between 2003 and 2009, judicial decisions in three States (Massachusetts, Connecticut, and Iowa) redefined marriage to include same-sex couples. Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009); Kerrigan v. Comm’r of Pub. Health, 957 A.2d 407 (Conn. 2008); Goodridge v. Dep’t of Public Health, 798 N.E.2d 941 (Mass. 2003). From 2009 to 2012, in the absence of a judicial decision, six States (Maryland, Maine, New Hampshire, New York, Washington State, and Vermont) and the District of Columbia redefined marriage by legislation or ballot initiative. D.C. CODE §46-401 (2010); ME. REV. STAT. ANN. tit. 19-A, § 650A (approved by voters Nov. 2012); MD. CODE ANN., FAM. LAW, § 2-201 (approved by voters Nov. 2012); N.H. REV. STAT, ANN. § 457:1-a (2010); N.Y. DOM. REL. LAW § 10-a (McKinney 2012); VT. STAT. ANN. tit. 15, § 8 (2009); WASH. REV. CODE § 26.04.010 (approved by voters Nov. 2012).
8

means the union of one man and one woman. Zablocki v. Redhail, 434 U.S. 374, 383 (1978) (“Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival”); Loving v. Virginia, 388 U.S. 1, 12 (1967) (same); Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942) (marriage is “fundamental to the very existence and survival of the race”); Maynard v. Hill, 125 U.S. 190, 211 (1888) (marriage is “the foundation of the family and of society, without which there would be neither civilization nor progress”); Murphy v. Ramsey, 114 U.S. 15, 45 (1885) (referring to marriage as “the union for life of one man and one woman”). This Court has been careful to distinguish the claim of a right to marry a person of the same sex, which it has never recognized, from others which it has. Lawrence, 539 U.S. at 578 (stating that the case under review, involving a ban on homosexual sodomy, “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter”); id. at 585 (O’Connor, J., concurring in the judgment) (“reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group”).8
8 Lawrence did not decide that homosexual conduct is a fundamental right, let alone that government must formally recognize homosexual relationships by equating them with marriage. Lawrence, 539 U.S. at 578 (holding that Texas sodomy law “furthers no legitimate state interest”); id. at 586 (Scalia, J., dissenting) (“nowhere does the Court’s opinion declare that homosexual sodomy is a ‘fundamental right’”). See Lofton, 358 F.3d at 815-17 (rejecting a claimed “fundamental right to private sexual intimacy” and concluding that “it is a strained and ultimately incorrect reading of Lawrence to interpret it to announce a new fundamental right”), quoted with
9

Furthermore, the claimed right to marry a person of the same sex as an aspect of a more generalized “right to marry” does not satisfy the requirement for a “careful description” of the asserted right required under Glucksberg, 521 U.S. at 721. In Glucksberg, proponents of a right to physician-assisted suicide strained to recast it as a right to determine “the time and manner of one’s death,” “to die,” to “choose how to die,” to “control … one’s final days,” and “to choose a humane, dignified death.” Id. at 724. This Court rejected all of these rhetorical sleights of hand, insisting instead on a “careful description” of the right at issue. Id. at 721. For similar reasons, Windsor cannot plausibly recast her claim as a “right to marry.”9
B. As Defined by Courts to Date, “Sexual Orientation” Is Not a Classification That Should Trigger Heightened Scrutiny.
This Court has relied upon four criteria to identify the very limited set of classifications that qualify for heightened scrutiny as suspect or quasi-suspect: members of the class have (a) “no ability to attract
approval in Seegmiller v. LaVerkin City, 528 F.3d 762, 771 (10th Cir. 2008).
9 Loving v. Virginia, 388 U.S. 1 (1967), is distinguishable because it did not involve an attempt to redefine marriage as the union of one man and one woman. Instead, it removed a statutory bar to such unions, a bar that was rooted in nowdiscredited and gravely unjust notions of white supremacy. Id. at 7-8; see Jackson, slip op. at 65-66, 2012 WL 3255201 at *25 (rejecting the Loving analogy); Conaway v. Deane, 932 A.2d 571, 601-02, 619-20 (Md. 2007) (same); Lewis v. Harris, 908 A.2d 196, 210 (N.J. 2006) (same).
10

the attention of the lawmakers,” (b) a history of unequal treatment, and (c) an obvious, immutable or distinguishing trait (d) bearing no relation to their ability to perform or contribute to society. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 441, 445 (1985); Lyng v. Castillo, 477 U.S. 635, 638 (1986); San Antonio Sch. Dist. v. Rodriguez, 411 U.S. 1, 28 (1973); Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (plurality).
Applying these criteria, this Court has recognized principally three classifications (race, alienage, and national origin) as suspect, and two (sex and illegitimacy) as quasi-suspect for purposes of triggering, respectively, strict or intermediate scrutiny. Loving, 388 U.S. at 11 (race); Graham v. Richardson, 403 U.S. 365, 371-72 (1971) (alienage); Korematsu v. United States, 323 U.S. 214, 216 (1944) (national origin); Miss. Univ. for Women v. Hogan, 458 U.S. 718, 723-24 (1982) (sex); Lalli v. Lalli, 439 U.S. 259, 265 (1978) (illegitimacy). An overarching feature of all five of these established protected classes is that they involve a trait attributable from conception or birth. For several reasons, sexual orientation does not rank as a suspect or quasisuspect class.
1. In contrast to the classes for which this Court has applied heightened scrutiny,10 what lower courts have understood to be a homosexual “orientation” is not a trait attributable from conception or birth. Rather, particularly as framed by Respondents here,
10 Frontiero, 411 U.S. at 686 (noting that “sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth”).
11

it involves a species of conduct.11 See High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563, 573 (9th Cir. 1990) (“Homosexuality is not an immutable characteristic; it is behavioral and hence is fundamentally different from traits such as race, gender, or alienage, which define already existing suspect and quasi-suspect classes.”); Woodward, 871 F.2d at 1076 (“Homosexuality … differs fundamentally from those [traits] defining any of the recognized suspect or quasi-suspect classes. Members of recognized suspect or quasi-suspect classes, e.g., blacks or women, exhibit immutable characteristics, whereas homosexuality is primarily behavioral in nature.”). Indeed, with this distinction in mind, this Court has recognized that a finding of a suspect or quasi-suspect class for equal protection purposes is simply inappropriate when the distinguishing characteristic is a product of “voluntary action.” Plyler v. Doe, 457 U.S. 202, 219 n.19 (1982).
11 Many courts, including this Court recently in dicta, have used the legal terms “homosexuality” and “sexual orientation” in a manner that includes conduct. See, e.g., Christian Legal Soc’y v. Martinez, 139 S. Ct. 2971, 2990 (2010) (“Our decisions have declined to distinguish between status and conduct in this context.”). The parties in this case do the same. We note, however, that these same terms do not necessarily bear the same meaning in the Catholic moral tradition, where the distinction between status or inclination and conduct is critical. See, e.g., Congregation for the Doctrine of the Faith, Some Considerations Concerning the Response to Legislative Proposals on the Non-discrimination of Homosexual Persons, No. 12 (July 22, 1992); see also Brief Amicus Curiae of USCCB in Christian Legal Society v. Martinez, No. 08-1371, at 8-11 (Feb. 4, 2010). For purposes of this brief, we use these two terms exclusively as they are currently understood and applied in the law, not as they might be understood within Catholic teaching.
12

Disregarding the “voluntary action” limit on “distinguishing traits” would yield absurd results, as it would threaten to expand dramatically the range of legislative categories triggering heightened scrutiny. In particular, any “voluntary action” that is now or has ever been illegal would readily satisfy the factor of having suffered government disfavor or a history of discrimination based on the distinguishing trait. Where the conduct is still illegal, those with the trait could just as readily claim political powerlessness or the inability to attract the attention of lawmakers. Finally, if the current or former illegality of the “voluntary action” can be discounted as reflecting mere disapproval or discrimination, then it is a small step (if any) to conclude that the “voluntary action” bears no relation to the ability to perform or contribute to society.
The example of polygamists—a class that is defined in part by conduct—illustrates the point. One can substitute “polygamists” for “homosexuals” as that term is used in the Windsor opinion and arrive at the same conclusion for the former as the Second Circuit did with respect to the latter. Windsor v. United States, 699 F.3d 169, 181-82 (2d Cir. 2012) (“In this case, all four factors justify heightened scrutiny: A) [polygamists] as a group have historically endured persecution and discrimination; B) [polygamy] has no relation to aptitude or ability to contribute to society; C) [polygamists] are a discernible group with non-obvious distinguishing characteristics, especially in the subset of those who enter [polygamous relationships]; and D) the class remains a politically weakened minority.”). Our point, of course, is not that the two are morally equivalent, but simply that the Second Circuit’s logic
13

leads to absurd results, and that the absurdity originates with the decision to ignore this Court’s “voluntary action” limitation on “distinguishing traits” that may trigger heightened scrutiny.
2. The claim that homosexual persons today have “no ability to attract the attention of the lawmakers,” Cleburne, 473 U.S., at 445, is frivolous. Indeed, courts rejected claims of political powerlessness on the part of homosexual persons almost twenty-five years ago. Ben-Shalom v. Marsh, 881 F.2d 454, 466 (7th Cir. 1989) (“In these times homosexuals are proving that they are not without growing political power. It cannot be said ‘they have no ability to attract the attention of the lawmakers.’”), cert. denied, 494 U.S. 1004 (1990); High Tech Gays, 895 F.2d at 574 (“homosexuals are not without political power; they have the ability to and do ‘attract the attention of the lawmakers,’ as evidenced by … [antidiscrimination] legislation.”). Since then, the movement to change the law in a manner favorable to people who have and want to act on homosexual inclinations has gained enormous ground.
As one federal district judge recently observed:
Today, unlike in 1990, the public media are flooded with editorial, commercial, and artistic messages urging the acceptance of homosexuals…. Homosexuals serve openly in federal and state political offices. The President of the United States has announced his personal acceptance of the concept of samesex marriage, and the announcement was widely applauded in the national media. Not only has the President expressed his moral
14

support, he has directed the Attorney General not to defend against legal challenges to the Defense of Marriage Act…. It is exceedingly rare that a president refuses in his official capacity to defend a democratically enacted federal law in court based upon his personal political disagreements. That the homosexualrights lobby has achieved this indicates that the group has great political power.
Sevcik v. Sandoval, No. 2:12-cv-00578-RCJ-PAL, slip op. at 19, 2012 WL 5989662 at *11 (D. Nev. Nov. 26, 2012).12 Indeed, just weeks before this decision was handed down, three states by voter referendum recognized same-sex unions as marriage. See n.7, supra.
3. The distinction that DOMA makes between unions of one man and one woman and other interpersonal relationships is unmistakably “relevant to interests the State has the authority to implement.” City of Cleburne, 473 U.S. at 441. As set forth in our amicus brief (pp. 4-19) in Hollingsworth v. Perry, No. 12-144, such a classification, when it appears in state legislation, is reasonably related to important government interests, such as the recognition of the unique value
12 Closely related to a claim of political powerlessness and with the same animating goal of protecting minorities from majoritarian impulses, a claim of “past discrimination” also weighs less in Windsor’s favor given the dramatic changes in the social and legal landscape. Sevcik, slip op. at 18, 2012 WL 5989662 at *11 (“without a showing of continuing discrimination or lingering effects of past discrimination, the first factor [i.e., historical discrimination] does not tend to support an argument that the group need be protected from majoritarian processes”).
15

to society of procreation, and the unique value to children of being raised by a mother and father together. The classification specially affirms these unique contributions to society, which only oppositesex couples may make. Likewise, when the federal government—for purposes of federal programs and federal entitlements—defines marriage to mean the union of one man and one woman, that characteristic is just as reasonably related to the aims of those programs and entitlements.
A decision by the federal government to support and encourage marriage, understood as the union of one man and one woman, through the provision of federal benefits to married couples or surviving spouses does not translate into a constitutional duty to provide the same benefits to persons who are not or were not married and who therefore are not similarly situated. Plyler, 457 U.S., at 216 (“The Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same”), quoting Tigner v. Texas, 310 U.S. 141, 147 (1940). That Windsor did not marry, as the federal government defines that term, is surely “relevant” to its decision not to provide her with a benefit it has reserved to married couples.
Finally, for all of the reasons above that DOMA is not subject to “intermediate” or “strict” scrutiny, DOMA is also not subject to “intensified” scrutiny under the alternative theory offered by the First Circuit. Commonwealth of Massachusetts, 682 F.3d at 10. In its equal protection cases, this Court has only applied one of three levels of judicial review: rational basis review, intermediate scrutiny, or strict scrutiny. There is no authority for a fourth level of
16

review. Moreover, the three Supreme Court cases that the First Circuit cited in favor of “intensified” scrutiny involved rational basis review.13 It is also unclear what criteria should trigger “intensified” scrutiny or how it would differ from other, established levels of review. For that reason, adoption of “intensified” scrutiny would leave the law in a state of uncertainty and confusion. And perhaps most importantly, the endorsement of a fourth level of review—something more than rational basis but less than heightened scrutiny—would open the door for lower courts to substitute their own policy judgments for those of legislatures on a range of hotbutton social issues. Respectfully, that is not the role of the Judiciary.
In sum, for reasons we have discussed, application of either heightened or “intensified” scrutiny to legislative classifications that, like DOMA, touch upon neither a fundamental right nor a suspect or quasi-suspect class would seriously distort this Court’s equal protection jurisprudence. Under rational basis review, DOMA should be upheld. All
13 Romer, 517 U.S. at 631-32 (applying “conventional [rational basis] inquiry” to conclude that Colorado’s Amendment 2 violated the Equal Protection Clause); City of Cleburne, 473 U.S. at 450 (applying rational basis review to strike down a zoning ordinance that “appear[ed] … to rest on an irrational prejudice against the mentally retarded”); U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528, 533, 538 (1973) (applying “traditional equal protection analysis” to conclude that a classification that rendered households of unrelated individuals ineligible for food stamps was “wholly without any rational basis”). See Jackson, slip op. at 83-84, 2012 WL 3255201 at *32 (concluding that Romer, City of Cleburne, and Moreno “do not support a new level of ‘intensified scrutiny’”).
17

the legitimate reasons for which the government encourages and supports marriage as the union of one man and one woman, set forth in our amicus brief (pp. 4-19) in Hollingsworth v. Perry, No. 12-144, apply to DOMA as well. In addition, the federal government has a legitimate (indeed, a very strong) interest in the uniform administration of its own programs. See Bipartisan Legal Advisory Group’s Brief on the Merits, at 33-37. That interest is served by a uniform definition of marriage for purposes of eligibility for federal marital benefits and exemptions like the ones at issue in this case. In the administration of federal programs, the federal government is not constitutionally bound by, and should not be held hostage to, redefinitions of marriage that are adopted in some states.14
14 Though rational basis review is the correct standard to apply, DOMA would also survive heightened or “intensified” scrutiny. Endorsing and encouraging the procreation and upbringing of children in households headed by their mother and father are interests of a compelling nature. As we have noted with respect to Proposition 8, no institution other than marriage joins a man and a woman together in a permanent and exclusive way and unites them to any children born of their union. No other institution ensures that children will have at least the opportunity to be raised by both a mother and father. Laws that encourage and promote the union of one man and one woman in marriage are an important remedy for the many problems surrounding the present-day decline of the family. For all of these reasons, it would be a serious misreading of the Constitution, and a grave injustice, to strike down DOMA.
18

II. Application of Stricter-Than-Rational Scrutiny to Classifications Based on Sexual Orientation Would Have Adverse Consequences in Other Areas of Law.
As we have argued, DOMA satisfies the rational basis test and, indeed, would survive even more rigorous scrutiny. Nevertheless, a decision by this Court to apply any scrutiny stricter than rational to classifications based on sexual orientation, as even the First Circuit recognized, “would have far-reaching implications….” Commonwealth of Massachusetts, 682 F.3d at 9.15
Three implications are especially noteworthy.
First, elevation of sexual orientation to a quasisuspect class would immerse federal courts into a quagmire of family law issues reserved to the states, issues for which the Judicial Branch is not institutionally suited.16
Second, application of heightened scrutiny would hinder the ability of legislatures to create accommodations for those with religious or moral objections to homosexual conduct.17 To take one
15 With due respect to the First Circuit, the same could be said of the “intensified” scrutiny that that court applied to DOMA.
16 This is not an argument against DOMA, of course, because DOMA defines marriage for purposes of federal programs only, which is plainly within the federal government’s power.
17 The burdens on religious liberty that would arise from invalidation of Proposition 8, as discussed in our amicus brief (pp. 21-24) in Hollingsworth v. Perry, No. 12-144, would arise here as well were the Court to invalidate DOMA.
19

example, through its domestic partnership law the State of Nevada extends many of the rights and benefits of marriage, but not the name “marriage,” to persons in same-sex relationships. But “[t]here is at least one notable exception….” Sevcik, supra, slip op. at 8, 2012 WL 5989662 at *5. The statute does “not require a public or private employer in [Nevada] to provide health care benefits to or for the domestic partner of an officer or employee….” Id., citing Nev. Rev. Stat. § 122A.210(1) (2011). This protects the religious liberty of those employers with a religious objection to providing such coverage. If, however, classifications based on “sexual orientation” trigger some form of heightened scrutiny, then reasonable legislative accommodations of this sort, in Nevada and everywhere else in the Nation, will be suspect. The ability of legislatures to relieve burdens on religious liberty, in turn, will be severely impeded. And, in the end, federal courts will be called upon time and again to address conflicts between this newly-suspect classification and the more wellestablished rights of religious liberty, conscience, speech, and association.
Third, if this Court were to conclude that the Constitution requires a redefinition of marriage to include persons in same-sex relationships—a requirement that we believe cannot reasonably be inferred from the Constitution—it is unclear where the logical stopping point would be. This Court will ultimately be asked why other interpersonal relationships are not entitled to similar inclusion, and why other “barriers” to marriage (such as those posed by youth, kinship, or multiplicity of parties) should not also have to be struck down as inconsistent with this redefinition.
20

All of these considerations counsel judicial restraint.
CONCLUSION
For the foregoing reasons, DOMA should be upheld and the judgment of the Court of Appeals should be reversed.
Respectfully submitted,

ANTHONY R. PICARELLO, JR.* General Counsel
JEFFREY HUNTER MOON Solicitor
MICHAEL F. MOSES Associate General Counsel
UNITED STATES CONFERENCE OF CATHOLIC BISHOPS
3211 Fourth Street, N.E. Washington, D.C. 20017 (202) 541-3300 apicarello@usccb.org

January 29, 2013

*Counsel of Record

21

 
 No. 12-307 IN THE

UNITED STATES OF AMERICA, Petitioner,
v.
EDITH SCHLAIN WINDSOR, in her capacity as Executor of the estate of THEA CLARA SPYER, ET AL.,
Respondents.

On Writ of Certiorari to the United States Court of Appeals for the Second Circuit

BRIEF ON THE JURISDICTIONAL QUESTIONS FOR RESPONDENT EDITH SCHLAIN WINDSOR

Pamela S. Karlan Jeffrey L. Fisher STANFORD LAW SCHOOL SUPREME COURT LITIGATION CLINIC 559 Nathan Abbott Way Stanford, CA 94305
James D. Esseks Joshua A. Block Leslie Cooper Steven R. Shapiro AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street New York, NY 10004

Roberta A. Kaplan Counsel of Record
Walter Rieman Jaren Janghorbani Colin S. Kelly PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP 1285 Avenue of the Americas New York, NY 10019 (212) 373-3000 rkaplan@paulweiss.com
Arthur Eisenberg Mariko Hirose NEW YORK CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street New York, NY 10004

QUESTIONS PRESENTED
1. Whether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case.
2. Whether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing in this case.

ii
TABLE OF CONTENTS
QUESTIONS PRESENTED......................................... i TABLE OF AUTHORITIES ....................................... iv STATEMENT OF THE CASE..................................... 1
A. Factual And Legal Background ..................... 1 B. Proceedings Below .......................................... 6 SUMMARY OF ARGUMENT ................................... 10 ARGUMENT .............................................................. 12 I. Ms. Windsor Properly Invoked The Jurisdiction Of The Federal Courts.................... 12 II. The Executive Branch’s Agreement With The Court Below That DOMA Is Unconstitutional Does Not Deprive This Court Of Jurisdiction To Decide This Case. ........................................... 15 A. There Remains A Live Article III Case Or
Controversy Between Ms. Windsor And The United States......................................... 15 B. Section 1254(1) And Ordinary Rules Of Appellate Practice Confirm That This Court Has Jurisdiction. ................................ 25 C. Prudential And Practical Concerns Strongly Favor This Court Exercising Its Jurisdiction Here. ......................................... 31 III. Because Ms. Windsor Has A Cause Of Action Only Against The United States, Whether BLAG Has Independent Article III Standing Does Not Affect This Court’s Jurisdiction. ......... 36

iii
CONCLUSION .......................................................... 39
APPENDICES
Appendix A: Social Security Administration Notice Of Reconsideration .................................. 1a
Appendix B: Written Request For Expedited Appeal ............................................................... 10a
Appendix C: Social Security Administration Statement Of Claimant Or Other Person ............................................................... 12a

iv
TABLE OF AUTHORITIES
Cases
Already, LLC v. Nike, Inc., 133 S. Ct. 721 (2013) .............................................. 12
Am. Elec. Power Co. v. Connecticut, 131 S. Ct. 2527 (2011) ............................................ 32
Baker v. Carr, 369 U.S. 186 (1962) ................................................ 20
Barnes v. Kline, 759 F.2d 21 (D.C. Cir. 1984), vacated sub nom. Burke v. Barnes, 479 U.S. 361 (1987) ................... 36
Bender v. Williamsport Area Sch. Dist., 475 U.S. 534 (1986) ................................................ 32
Blodgett v. Holden, 275 U.S. 142 (1927) ................................................ 31
Camreta v. Greene, 131 S. Ct. 2020 (2011) .......................... 25, 32, 36, 37
Cardinal Chem. Co. v. Morton Int’l, Inc., 508 U.S. 83 (1993) .................................................. 21
Chadha v. INS, 634 F.2d 408 (9th Cir. 1980), aff’d, 462 U.S. 919 (1983) .............................. 17, 18, 19, 20
Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984) ............................................... 28
Deposit Guar. Nat’l Bank v. Roper, 445 U.S. 326 (1980) .......................................... 27, 29
Diamond v. Charles, 476 U.S. 54 (1986) ............................................ 37, 38
Dillard v. Chilton Cnty. Comm’n, 495 F.3d 1324 (11th Cir. 2007) .............................. 38

v
Farrar v. Hobby, 506 U.S. 103 (1992) ................................................ 30
FCC v. Action for Children’s Television, 503 U.S. 914 (1992) ................................................ 31
GTE Sylvania, Inc. v. Consumers Union, Inc. 445 U.S. 375 (1980) ............................................... 24
Heckler v. Mathews, 465 U.S. 728 (1984) ................................................ 14
Hein v. Freedom From Religion Found., Inc., 551 U.S. 587 (2007) ................................................ 13
Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010) ............................................ 31
Horne v. Flores, 557 U.S. 433 (2009) .................................... 15, 19, 29
In re Estate of Ranftle, 917 N.Y.S.2d 195 (App. Div. 1st Dep’t 2011) .......... 2
In re Metro. Ry. Receivership, 208 U.S. 90 (1908) .................................................. 19
INS v. Chadha, 462 U.S. 919 (1983) ........................................ passim
Jones v. Prince George’s Cnty., Md., 348 F.3d 1014 (D.C. Cir. 2003) .............................. 38
Lefemine v. Wideman, 133 S. Ct. 9 (2012) .................................................. 30
Lewis v. Cont’l Bank Corp., 494 U.S. 472 (1990) ................................................ 29
Lewis v. N.Y. State Dep’t of Civil Serv., 872 N.Y.S.2d 578 (App. Div. 3d Dep’t), aff’d sub nom. Godfrey v. Spano, 13 N.Y.3d 358 (2009) ........................................................................ 2

vi
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ................................................ 29
Martinez v. Cnty. of Monroe, 850 N.Y.S.2d 740 (App. Div. 4th Dep’t 2008).......... 2
Millbrook v. United States, No. 11-10362........................................................... 24
Miss. Univ. for Women v. Hogan, 458 U.S. 718 (1982) ................................................ 14
Moore v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 47 (1971) ............................................ 22, 23
Mukasey v. ACLU, 555 U.S. 1137 (2009) .............................................. 31
N.C. State Bd. of Ed. v. Swann, 402 U.S. 43 (1971) .................................................. 23
Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193 (2009) ................................................ 31
OPM v. Richmond, 496 U.S. 414 (1990) ................................................ 34
Princeton Univ. v. Schmid, 455 U.S. 100 (1982) ................................................ 22
Purnell v. City of Akron, 925 F.2d 941 (6th Cir. 1991) .................................. 38
Ruiz v. Estelle, 161 F.3d 814 (5th Cir. 1998) .................................. 38
San Juan Cnty., Utah v. United States, 503 F.3d 1163 (10th Cir. 2007) .............................. 38
Solid Waste Agency of N. Cook Cnty. v. U.S. Army Corps of Eng’rs, 101 F.3d 503 (7th Cir. 1996) .................................. 38
Sprint Commc’ns Co. v. APCC Servs., Inc., 554 U.S. 269 (2008) ................................................ 15

vii U.S. Postal Serv. v. Brennan,
579 F.2d 188 (2d Cir. 1978) ................................... 38 United States v. Alvarez,
132 S. Ct. 2537 (2012) ............................................ 31 United States v. Lovett,
328 U.S. 303 (1946) .................................... 16, 17, 18 United States v. Mendoza,
464 U.S. 154 (1984) ................................................ 32 United States v. Stevens,
130 S. Ct. 1577 (2010) ............................................ 31 Warth v. Seldin,
422 U.S. 490 (1975) ................................................ 29
Constitutional Provisions U.S. Const. art. I, § 9, cl. 7 ........................................ 34 U.S. Const. amend. V......................................... passim
Statutes 1 U.S.C. § 7......................................................... passim 26 U.S.C. § 2001(a) ...................................................... 3 26 U.S.C. § 2056........................................................... 3 26 U.S.C. § 6511(a) .................................................... 13 26 U.S.C. § 7422......................................... 6, 13, 14, 36 28 U.S.C. § 1252................................................... 26, 27 28 U.S.C. § 1254(1) .................................. 11, 25, 26, 27 28 U.S.C. § 1291......................................................... 30 28 U.S.C. § 1331........................................................... 6 28 U.S.C. § 1346(a)(1) ............................................ 6, 13 28 U.S.C. § 2414......................................................... 34

viii 31 U.S.C. § 1304......................................................... 34 31 U.S.C. § 1341......................................................... 34 31 U.S.C. § 1350......................................................... 34 42 U.S.C. § 402............................................................. 5
Legislative Materials 100 H.R. Rep. No. 100-660 (1988) ............................. 27
Regulations 11 C.F.R. § 113.2(a)(1) ............................................... 35 26 C.F.R. § 301.6402-2(e)........................................... 13
Other Authorities 14 U.S.L.W. 3379 (1946) ............................................ 18 Goldman, Brian P., Note, Should the Supreme
Court Stop Inviting Amici Curiae to Defend Abandoned Lower Court Decisions?, 63 Stan. L. Rev. 907 (2011).................................... 24 House Rule XXV (rev. Jan. 3, 2013), available at http://tinyurl.com/House-Rules113thCong ........... 34 Letter from George S. King, Counsel to the Retirement System, to Mark E. Daigneault (Oct. 4, 2004), available at http://tinyurl.com/NYCG04OP ................................ 2 Memorandum from David Nocenti to All Agency Counsel (May 14, 2008), available at http://tinyurl.com/NYGOV08. .................................. 2

ix
N.Y. Att’y Gen. Informal Op. 2004-1 (Mar. 3, 2004), available at http://tinyurl.com/NYAG04OP ................................ 2
Supreme Court of the United States, Instructions for Admission to the Bar, available at http://tinyurl.com/afb24er ................. 35
Thea Spyer, Edith Windsor, N.Y. Times, May 27, 2007 .................................................................... 2
Wright, Charles Alan & Mary Kay Kane, Federal Practice and Procedure Deskbook (2012) ...................................................................... 23

BRIEF ON THE JURISDICTIONAL QUESTIONS FOR RESPONDENT
EDITH SCHLAIN WINDSOR
This Court has directed the parties to address two jurisdictional questions. The answer to the first question is that this Court has jurisdiction to decide this case without regard to the Executive Branch’s view on the constitutionality of Section 3 of the Defense of Marriage Act (DOMA), 1 U.S.C. § 7, because the United States continues to enforce DOMA against respondent Edith Windsor. And because the United States is a proper and indispensable party to this lawsuit, the answer to the second question does not affect this Court’s ability to reach the merits.
STATEMENT OF THE CASE
A. Factual And Legal Background
1. Respondent Edith Schlain Windsor and her late spouse, Thea Clara Spyer, first met in 1963. J.A. 231. They soon became a couple, and in 1967, Dr. Spyer proposed to Ms. Windsor with a circular diamond pin. Id. 232-33. Following the same path as many newly engaged couples, they purchased a home together – a house near the beach on Long Island where they would spend the next forty summers until Dr. Spyer’s death in 2009. Id. 233. During those four decades, in sickness and in health, the couple also shared an apartment in Manhattan, supported one another’s careers, and built their lives together.
In 1977, Dr. Spyer was diagnosed with progressive multiple sclerosis, a chronic disease that causes debilitating and irreversible neurological

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damage and paralysis. J.A. 234. As Dr. Spyer’s condition deteriorated – and she moved from a cane, to crutches, to a wheelchair – Ms. Windsor cared for her. Id. In 1993, they expressed their continued commitment to one another by becoming the eightieth pair to register as domestic partners when New York City first offered legal recognition for gay couples. Id. 235. Over the next fourteen years, Dr. Spyer’s disease wrought many changes in their daily lives, but one constant remained: Ms. Windsor and Dr. Spyer were determined to marry one another. Id.
In 2007, the couple married in Toronto. J.A. 236. At the ages of seventy-seven and seventy-five, they were featured on the wedding pages of the New York Times. Id. 175-77; Thea Spyer, Edith Windsor, N.Y. Times, May 27, 2007, at ST14. They spent the last two years of Dr. Spyer’s life together as a married couple.1
1 New York, “through its executive agencies and appellate courts, uniformly recognized Windsor’s same-sex marriage in the year that she paid the federal estate taxes.” Pet. App. 8a; see also U.S. Supp. Br. App. 7a. In fact, years before Ms. Windsor’s marriage to Dr. Spyer, the State Attorney General had already concluded that “New York law presumptively require[d]” that married gay couples “must be treated as spouses for purposes of New York law.” N.Y. Att’y Gen. Informal Op. 2004-1, at 16 (Mar. 3, 2004), available at http://tinyurl.com/NYAG04OP. Similarly, the State Comptroller General had ordered that the state’s retirement system “recognize a same-sex Canadian marriage in the same manner as an opposite-sex New York marriage, based on the principle of comity.” Letter from George S. King, Counsel to the Retirement System, to Mark E. Daigneault, at 5 (Oct. 4, 2004), available at http://tinyurl.com/NYCG04OP. And during Dr. Spyer’s lifetime,

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2. As most married couples do, Ms. Windsor and Dr. Spyer provided for one another in their wills. Dr. Spyer’s will made Ms. Windsor executor and sole primary beneficiary of her estate. J.A. 164.
Under the Internal Revenue Code, an estate like Dr. Spyer’s would usually qualify for an unlimited marital deduction and would therefore pass to the surviving spouse without imposition of the federal estate tax. See 26 U.S.C. § 2056. But DOMA denies this deduction when both spouses are of the same sex. Instead, when read together with DOMA, the Internal Revenue Code treats gay spouses as if they were total strangers to one another, forcing estates like Dr. Spyer’s to pay the federal estate tax. See id. § 2001(a).
the Governor issued a directive requiring all state agencies to afford “same-sex marriages that are legally performed in other jurisdictions” the “same recognition as any other legally performed union.” Memorandum from David Nocenti to All Agency Counsel, at 1-2 (May 14, 2008), available at http://tinyurl.com/NYGOV08.
While New York’s highest court has not directly addressed the question, three of the state’s four intermediate appellate courts have, and they have each upheld the validity of out-ofstate marriages involving gay couples. See In re Estate of Ranftle, 917 N.Y.S.2d 195 (App. Div. 1st Dep’t 2011) (upholding the validity of a gay couple’s 2008 Canadian marriage); Lewis v. N.Y. State Dep’t of Civil Serv., 872 N.Y.S.2d 578, 583-84 (App. Div. 3d Dep’t) (upholding the Civil Service’s decision to recognize marriages of gay couples performed in other jurisdictions), aff’d on other grounds sub nom. Godfrey v. Spano, 13 N.Y.3d 358 (2009); Martinez v. Cnty. of Monroe, 850 N.Y.S.2d 740 (App. Div. 4th Dep’t 2008) (recognizing the validity of a gay couple’s 2004 Canadian marriage).

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Ms. Windsor, acting as executor of Dr. Spyer’s will, made an advance payment to the Internal Revenue Service (IRS) and applied for an automatic extension of time within which to file the estate tax return. J.A. 169. The return she subsequently filed showed that the estate owed $363,053. Id. On the accompanying Schedule M form, she explained that the estate “was not claiming the marital deduction authorized by 26 U.S.C. § 2056(a) because of the operation of DOMA.” Id. In March 2010, the U.S. Treasury accordingly issued the estate a refund for the difference between the advance payment and the amount owed. Id.
The following month, Ms. Windsor filed a Claim for Refund and Request for Abatement with the IRS seeking a refund of the remaining $363,053. J.A. 242. In the accompanying Disclosure Statement, she explained that she and Dr. Spyer had been validly married under New York law at the time of Dr. Spyer’s death. Id. She further asserted that DOMA “discriminates against surviving spouses in married same-sex couples, such as Ms. Windsor,” in violation of the equal protection component of the Fifth Amendment. Id. 244.
The IRS rejected Ms. Windsor’s claim for a refund. J.A. 245. It insisted on “consider[ing] the facts of [the] claim without regard to the merits of [the] constitutional challenge” because “a determination regarding the constitutionality of a federal law is within the province of the courts.” Id. 251-52. Instead, the IRS simply declared that since

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“both spouses were women,” the marital deduction was “inapplicable because the surviving spouse is not a spouse as defined by DOMA.” Id. 252.2
3. The Social Security Act provides a surviving spouse with widow’s insurance benefits and a lumpsum death payment (together, “survivors benefits”). See 42 U.S.C. § 402(e), (i). As Dr. Spyer’s widow, Ms. Windsor sought the survivors benefits. J.A. 166-67. In November 2010, when Ms. Windsor’s attorney hand delivered her application to the local Social Security Administration (SSA) office, a field supervisor rejected it on the spot, citing DOMA. Ms. Windsor immediately filed a request for reconsideration, but in April 2011 she received a Notice of Disapproved Claim, which purported to dismiss her request on the grounds that there had been no initial determination. In response, she filed a second request for reconsideration. In April 2012, that request was also denied. In its “Reconsideration Determination,” the SSA acknowledged that Ms. Windsor’s marriage was “considered valid” in New York “at the time of [Dr. Spyer’s] death.” Juris. App. 8a.3 But like the IRS, the SSA disclaimed any ability
2 At the time, New York State, for purposes of imposing its own estate tax, calculated the value of a decedent’s estate by reference to the estate’s federal tax liability. Thus, the IRS’s decision meant that Dr. Spyer’s estate, instead of owing New York nothing, owed the State $275,528. The estate timely paid that sum to the New York Department of Taxation and Finance. Ms. Windsor has filed a protective claim for a refund of New York estate tax.
3 The relevant Social Security materials are contained in the Appendix to this brief and are cited as “Juris. App.”

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to entertain Ms. Windsor’s equal protection claim: “We are not permitted to make judgment regarding the constitutionality of the law at this level of your request, and we must follow the law as written.” Id.
The SSA also informed Ms. Windsor that, for constitutional claims, an “expedited appeal” process was available. Under that process, a claimant can bypass the usual requirement of full administrative exhaustion and “go directly to court.” Juris. App. 2a. Before an expedited appeal can proceed, both the claimant and the SSA must sign off. Ms. Windsor filed the necessary request for an expedited appeal in June 2012 and a revised request in August. Id. 10a15a. The SSA has yet to respond.
B. Proceedings Below
1. Ms. Windsor filed suit in the United States District Court for the Southern District of New York, naming the United States as the defendant. Her amended complaint invoked the district court’s jurisdiction under 26 U.S.C. § 7422 and 28 U.S.C. §§ 1331 and 1346(a)(1). J.A. 151. She sought three forms of relief: a refund of the $363,053 Ms. Windsor had paid on behalf of Dr. Spyer’s estate; a declaratory judgment that DOMA violates the equal protection component of the Fifth Amendment as applied to her in her capacity as executor; and an injunction requiring the United States to treat Dr. Spyer’s estate as if her spouse had been of the opposite sex. Id. 173. Her amended complaint stated that she was seeking the Social Security survivors benefit and notified the court that she would amend her complaint to add a claim for that relief if her application were ultimately to be denied. Id. 166-67.

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2. Shortly before the United States’ answer was due, Attorney General Eric Holder announced that, while DOMA “will continue to be enforced by the Executive Branch . . . unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law’s constitutionality,” the Department of Justice would “forgo the defense of this statute.” J.A. 191-92.
The Attorney General explained that he was instructing the Department’s lawyers to “immediately inform” the district court in this case “of the Executive Branch’s view that heightened scrutiny is the appropriate standard of review and that, consistent with that standard, Section 3 of DOMA may not be constitutionally applied to samesex couples whose marriages are legally recognized under state law.” J.A. 193.
3. The Attorney General’s announcement prompted the district court to invite Congress to intervene. See J.A. 528.
The Senate did not respond to the district court’s invitation. But the Bipartisan Legal Advisory Group of the House of Representatives (BLAG) voted 3-2 along party lines to participate. BLAG then filed a motion to intervene for the limited purpose of defending DOMA’s constitutionality. J.A. 195. Neither Ms. Windsor nor the United States opposed BLAG’s motion.
The magistrate judge granted BLAG’s motion. J.A. 218. Under Second Circuit precedent, BLAG was not required “to establish independent Article III standing” given that there was “an ongoing case or controversy between the existing parties to the

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litigation.” Id. 226. Since then, BLAG has participated actively at every stage of this litigation.
4. Ultimately, Ms. Windsor moved for summary judgment, J.A. 90, and BLAG and the United States moved to dismiss her complaint, id. 98.
The district court granted Ms. Windsor’s motion for summary judgment, and consequently denied the United States’ and BLAG’s motions to dismiss. J.A. 114. The district court held that DOMA failed to satisfy rationality review. Pet. App. 13a-14a. Accordingly, the court declared DOMA “unconstitutional as applied to Plaintiff” and awarded “judgment in the amount of $363,053.00, plus interest and costs allowed by law.” Id. 23a.
5. BLAG and the United States each filed a notice of appeal. J.A. 522, 524.
Before the Second Circuit, BLAG moved to dismiss the United States’ appeal and to “realign the appellate parties to reflect that the United States prevailed in the result it advocated in the district court.” U.S. Supp. Br. App. 4a. The Second Circuit denied that motion, agreeing unanimously that it had jurisdiction over the United States’ appeal. See id. 4a, 31a. On the merits, a divided panel then held that because DOMA discriminated against individuals on the basis of sexual orientation, heightened scrutiny was appropriate. Id. 15a-16a. Applying that standard, the majority held that “DOMA’s classification of same-sex spouses was not substantially related to an important government interest.” Id. 30a. It therefore affirmed the judgment of the district court. Id. 31a.

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6. While the case had been pending before the Second Circuit, both Ms. Windsor and the United States filed petitions for a writ of certiorari before judgment raising the question of DOMA’s constitutionality under the Fifth Amendment.
BLAG filed its brief in opposition to the United States’ petition after the Second Circuit’s decision. Although the Second Circuit had held that “Windsor’s marriage would have been recognized under New York law at the time of Spyer’s death,” U.S. Supp. Br. App. 7a, BLAG questioned whether Ms. Windsor met “Article III prerequisites” to bring her action, BIO 20. Accordingly, BLAG argued that her case was an inappropriate vehicle for resolving a concededly important constitutional question. In addition, BLAG contended that because the United States had “prevailed” in the court of appeals, it was “not clear” that the United States had appellate standing. Id. 21.
Once the Second Circuit had ruled, the United States filed a supplemental brief requesting that this Court consider its earlier-filed petition “as one for certiorari after judgment.” U.S. Supp. Br. 7. BLAG also filed a supplemental brief, reiterating its claims that Ms. Windsor’s case was a problematic vehicle for resolving DOMA’s constitutionality.
7. This Court granted the United States’ petition. It directed the parties to brief and argue two jurisdictional questions in addition to the question presented by the United States. See 133 S. Ct. 786 (2012).
Three weeks later, BLAG filed its own petition for certiorari in Ms. Windsor’s case, ostensibly “so

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that this Court has a vehicle to reach the question of DOMA’s constitutionality even if it concludes that the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction over DOJ’s petition.” Pet. Cert. 10, Bipartisan Legal Advisory Group of the United States House of Representatives v. Windsor (No. 12785). That petition is pending. Subsequently, the House of Representatives passed a resolution purporting to authorize BLAG’s participation in this lawsuit. J.A. 578-79.
SUMMARY OF ARGUMENT
Respondent Edith Windsor was compelled to pay hundreds of thousands of dollars in federal estate tax because the Defense of Marriage Act precluded her from claiming the marital deduction on behalf of her spouse’s estate. She sued the United States and obtained a judgment declaring DOMA unconstitutional as applied to her and ordering a refund of the tax she had paid. The United States has appealed that judgment against it and continues to withhold the taxes it collected. These facts, which Amica does not dispute, provide this Court with jurisdiction to decide this case.
1. As in INS v. Chadha, 462 U.S. 919 (1983), this Court has jurisdiction to reach the constitutional question even though the Executive Branch, the private party who has challenged the statute, and the courts below have agreed at every stage of this litigation that the statute is unconstitutional. Here, too, this Court can review the constitutional question at the behest of the Solicitor General.

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a. This case presents a concrete controversy within the meaning of Article III. The United States has enforced DOMA against Ms. Windsor throughout this litigation. It will continue do so in the future if DOMA is upheld by this Court. Thus, this Court’s decision “will have real meaning” for both parties. Chadha, 462 U.S. at 939. Furthermore, the participation of a congressional intervenor in support of the statute allays any concern about whether the issues will be sharply presented.
b. This Court has statutory jurisdiction over this case. The plain language of 28 U.S.C. § 1254(1) grants this Court jurisdiction to hear a petition from “any party,” and the United States undeniably meets that criterion. For purposes of appeal, moreover, the United States is an “aggrieved party” within the traditional understanding of that term. Judgment was entered against the United States. That judgment requires the United States both to pay hundreds of thousands of dollars to Ms. Windsor and to alter its administration of more than one thousand statutory provisions that affect married gay couples. These are legally cognizable consequences that, by any objective standard, make the United States an aggrieved party. Nothing bars a government defendant from appealing this sort of adverse judgment.
c. Assuming that this Court has jurisdiction, prudential and practical concerns militate strongly in favor of deciding the constitutionality of DOMA now. Leaving that question to the lower courts will perpetuate the harmful uncertainty faced by Ms. Windsor and hundreds of thousands of others. It may also result in significant disuniformity across

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jurisdictions in the application of a federal statute. See Br. of Amici Curiae New York et al. Requiring every individual or couple affected by DOMA to bring a separate lawsuit until the relevant courts of appeals have ruled would create a legal morass for no good reason.
Furthermore, this is not a situation where, if this Court declines to review the constitutional question, unilateral Executive Branch action can provide a stable solution. With respect to federal benefits programs, the Appropriations Clause and the AntiDeficiency Act may mean that federal agencies cannot simply write individuals a check. And because DOMA applies outside the Executive Branch, and binds Congress, the Judiciary, and independent agencies, executive “non-enforcement” would not resolve the application of DOMA in many contexts.
2. Whether BLAG has independent Article III standing does not affect this Court’s jurisdiction. The United States’ continued – indeed, necessary – presence dictates that BLAG can properly assert “piggyback” standing and participate fully in this litigation.
ARGUMENT
I. Ms. Windsor Properly Invoked The Jurisdiction Of The Federal Courts.
This case raises profound questions of constitutional law regarding the Defense of Marriage Act, but those questions are “embedded” in an “actual controversy” about Ms. Windsor’s “particular legal rights.” Already, LLC v. Nike, Inc., 133 S. Ct. 721, 727 (2013) (internal quotation marks and citation

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omitted). Ms. Windsor filed suit seeking “the recovery of” $363,053 in federal estate taxes “alleged to have been . . . illegally assessed.” 28 U.S.C. § 1346(a)(1). The United States refused, and continues to refuse, to refund this money.
1. As the executor of Dr. Spyer’s estate and the filer of the claim for refund, Ms. Windsor is the proper plaintiff in this lawsuit. See 26 U.S.C. §§ 6511(a), 7422(a); 26 C.F.R. § 301.6402-2(e). In that capacity, she has suffered injury in fact: “[A] claim that the plaintiff’s tax liability is higher than it would be, but for the allegedly unlawful government action” is a “concrete and particularized injury.” Hein v. Freedom From Religion Found., Inc., 551 U.S. 587, 619 (2007) (Scalia, J., concurring in the judgment).4 Here, to add insult to this “wallet injury,” id., the tax was imposed on Dr. Spyer’s estate
4 DOMA clearly caused this tax liability. While BLAG may continue to cast aspersions on Ms. Windsor and Dr. Spyer’s marriage, see, e.g., BLAG Br. 14, 24 n.6, both courts below agreed that at the time of Dr. Spyer’s death, Ms. Windsor and Dr. Spyer were legally married, see U.S. Supp. Br. App. 7a; Pet. App. 8a; see also supra p. 2 n.1. Absent DOMA, Dr. Spyer’s estate would have qualified for the marital deduction. Even BLAG concedes that Ms. Windsor has produced documents that, “if accurate, establish the eligibility of Spyer’s estate for the estate tax marital deduction and that the estate would not have been liable for federal estate tax, if Spyer had been married to a surviving male U.S. citizen at the time of her death.” J.A. 465.
Redressability is not in doubt: the federal courts are entirely capable of curing the injury Ms. Windsor suffered by issuing a judgment in her favor. But in any event, questions about the validity of a claimant’s marriage go to the merits, and not to jurisdiction.

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because DOMA treats married gay couples differently from all other married couples. As this Court has “repeatedly emphasized, discrimination itself, by perpetuating ‘archaic and stereotypic notions’ or by stigmatizing members of the disfavored group as ‘innately inferior’ and therefore as less worthy participants in the political community, can cause serious noneconomic injuries to those persons” who are “denied equal treatment solely because of their membership in a disfavored group.” Heckler v. Mathews, 465 U.S. 728, 739-40 (1984) (internal citation omitted) (quoting Miss. Univ. for Women v. Hogan, 458 U.S. 718, 725 (1982)).
2. The United States is the proper – indeed, the indispensable – defendant in this lawsuit. The Internal Revenue Code requires that the “United States,” and only the United States, be named as the defendant in a lawsuit seeking a tax refund. See 26 U.S.C. § 7422(f)(1). When a plaintiff names any other official defendant – for example, the IRS or the Commissioner of Internal Revenue – the “court shall order . . . that the pleadings be amended to substitute the United States as a party.” Id. § 7422(f)(2). Moreover, because this is a tax refund case, the United States is the only party that can provide the relief Ms. Windsor seeks.
3. In light of these facts, Amica states the obvious: “The district court plainly had jurisdiction over Windsor’s lawsuit.” Amica Br. 23. For the reasons that follow, as long as the United States continues to withhold the taxes DOMA forced Ms. Windsor to pay on behalf of Dr. Spyer’s estate, the appellate courts continue to have jurisdiction over her lawsuit.

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II. The Executive Branch’s Agreement With The Court Below That DOMA Is Unconstitutional Does Not Deprive This Court Of Jurisdiction To Decide This Case.
Ms. Windsor obtained a declaratory judgment against the United States holding DOMA unconstitutional as applied to her and ordering the United States to refund $363,053 in federal estate taxes unconstitutionally levied. Under these circumstances, the United States had standing to appeal to the Second Circuit and to seek review in this Court. See, e.g., Horne v. Flores, 557 U.S. 433, 445 (2009). The straightforward conclusion that the United States can seek this Court’s review of the judgment entered against it is in no way undercut by the Executive Branch’s motives for doing so. Its views on the constitutionality of DOMA do not alter the fact that this Court’s “decision will have real meaning” for the parties in this case, and for Ms. Windsor in particular. Chadha, 462 U.S. at 939. Accordingly, this Court should reach the merits.
A. There Remains A Live Article III Case Or Controversy Between Ms. Windsor And The United States.
1. This case involves a concrete dispute between Ms. Windsor and the United States. Article III, Section 2, of the Constitution confers on the federal courts “‘judicial Power’ [for] the resolution of ‘Cases’ and ‘Controversies.’” Sprint Commc’ns Co. v. APCC Servs., Inc., 554 U.S. 269, 273 (2008). For purposes of determining whether such a case or controversy exists here, the two most instructive cases, as Amica acknowledges, are INS v. Chadha, 462 U.S. 919

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(1983), and United States v. Lovett, 328 U.S. 303 (1946). See Amica Br. 25. In each case, this Court exercised jurisdiction to reach the merits of the constitutional challenge despite the fact that the Solicitor General agreed with the lower court’s decision striking down the federal statute in question.
Chadha offers a particularly detailed analysis that shows why the lawsuit between Ms. Windsor and the United States remains a live case or controversy before this Court. See Chadha, 462 U.S. at 939-40. Chadha challenged a decision by the Immigration and Naturalization Service (INS) to reinstate deportation proceedings against him following a one-house “veto” of the Attorney General’s earlier decision to suspend those proceedings. See id. at 927-28.
The Attorney General agreed with Chadha, both before the court of appeals and in this Court, that the statute providing for a one-house veto was unconstitutional. See Chadha, 462 U.S. at 928, 939. Before this Court, the House and Senate argued that, because Chadha and the INS took “the same position on the constitutionality of the one-House veto,” there was no “genuine controversy.” Id. at 939. This Court rejected that argument, explaining that “the INS’s agreement with Chadha’s position does not alter the fact that the INS would have deported Chadha absent the Court of Appeals’ judgment.” Id. Thus, this Court “agree[d] with the Court of Appeals that ‘Chadha has asserted a concrete controversy, and our decision will have real meaning: if we rule for Chadha, he will not be deported; if we uphold § 244(c)(2), the INS will execute its order and deport

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him.’” Id. at 939-40 (quoting Chadha v. INS, 634 F.2d 408, 419 (9th Cir. 1980) (Kennedy, J.)). On this basis, the Court concluded that an Article III case or controversy was “present[]” in the case before it. Id. at 939.
For purposes of Article III adverseness, Chadha’s case and Ms. Windsor’s are indistinguishable. As in Chadha, a decision on the merits by this Court would have “real meaning.” If this Court rules for Ms. Windsor, she will receive a $363,053 refund; if the Court upholds DOMA, the United States will keep the money.5
This Court’s opinion in Chadha expressly relied on Lovett in reaching its conclusion that there was a live case or controversy before it. Chadha, 462 U.S. at 940. In Lovett, the Executive Branch declined to defend a provision of a congressional appropriations act that forbade salary payments to Lovett and two other government employees suspected of being subversives. 328 U.S. at 304-08. In a suit by the employees for back pay, the Court of Claims entered judgment against the United States – the sole defendant before it. The United States then sought review in this Court. Its petition for certiorari, which this Court granted, expressly reaffirmed the Attorney General’s view that the statute was “unconstitutional,” but asked the Court to grant review nonetheless because an “[a]uthoritative
5 A ruling in Ms. Windsor’s favor would also provide her with binding precedent requiring the SSA to grant her application for survivors benefits. See infra p. 32.

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decision by this Court” was “of the highest importance to the Government of the United States.” Pet. Cert. 9, Lovett v. United States, 328 U.S. 303 (1946).
Lovett was not a case in which jurisdictional questions went entirely “unaddressed.” Amica Br. 25 (internal quotation marks omitted). To the contrary, this Court was acutely aware that the case before it raised some questions of Article III justiciability, and it addressed those questions directly. See Lovett, 328 U.S. at 313-14. But no Justice so much as hinted that the Court lacked jurisdiction over the constitutional issue because the Executive Branch had agreed with the judgment of the court below.6 Given the uncommon alignment of the parties, it is just not plausible that this Court would have overlooked a serious question about its jurisdiction. The best reading of Lovett is therefore that this Court “found the requisite case or controversy was not absent.” Chadha v. INS, 634 F.2d at 420 n.9 (Kennedy, J.).
2. The Executive Branch’s motivation for continuing to enforce DOMA against Ms. Windsor by withholding her refund has no bearing on the continued existence of this live case or controversy.
6 That silence is all the more telling given that Justice Frankfurter at oral argument vowed to “avoid the constitutional question” if he could do so “with intellectual integrity.” 14 U.S.L.W. 3379, 3382 (1946). His solution was to urge that the case be decided on statutory grounds. See Lovett, 328 U.S. at 320 (Frankfurter, J., concurring). He never suggested that the Court lacked jurisdiction altogether.

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This Court has long understood that the presence of a case or controversy turns on whether the plaintiff has obtained the relief she is seeking, and not on the defendant’s view of the ultimate merits of the plaintiff’s claim. As this Court explained in In re Metropolitan Railway Receivership, 208 U.S. 90, 10708 (1908), “where there is a justiciable claim of some right,” it is “not necessary that the defendant should controvert or dispute the claim. It is sufficient that he does not satisfy it.” This Court took the same approach in Chadha, observing that “it would be a curious result if, in the administration of justice, a person could be denied access to the courts because the Attorney General of the United States agreed with the legal arguments asserted by the individual.” 462 U.S. at 939. As then-Judge Kennedy stated in reaching the same conclusion, “it would be a perversion of the judicial process” to “dismiss[] [Chadha’s] appeal for lack of adversity” because doing so “would implicitly approve the untenable result that all agencies could insulate unconstitutional orders and procedures from appellate review simply by agreeing that what they did was unconstitutional.” Chadha v. INS, 634 F.2d at 420.
The same analysis applies here. Chadha is merely one illustration of the general point that government defendants may be “happy to be sued and happier still to lose,” Horne, 557 U.S. at 449 (internal quotation marks and citation omitted). That point goes to the scope of courts’ remedial powers, see id. at 449-50, and not to the scope of their jurisdiction. This Court has never suggested that courts lack jurisdiction to enter judgments against government defendants that agree with an injured

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plaintiff’s claim on the merits. Whatever its reasons for doing so, the United States continues to withhold hundreds of thousands of dollars that Ms. Windsor contends are rightfully hers. That fact alone establishes an Article III case or controversy before this Court.
BLAG’s participation in this case reinforces the presence of a live case or controversy here. As in Chadha, where Congress’s participation before this Court assured that “concrete adverseness” was “beyond doubt,” 462 U.S. at 939; see also id. at 931 n.6, so too here. BLAG’s full participation in briefing and oral argument continues to “sharpen[] the presentation of issues.” Baker v. Carr, 369 U.S. 186, 204 (1962).
3. Amica’s attempts to distinguish Chadha are unavailing.
First, Amica claims that this Court’s finding of an Article III case or controversy between Chadha and the United States only “sustained the justiciability of the case in the Ninth Circuit,” Amica Br. 27, and does not answer the question whether there was jurisdiction in this Court. Amica’s reading, however, cannot be reconciled with this Court’s actual language. Three times, this Court used the word “we” in its discussion of why a “concrete controversy” existed: “We agree with the Court of Appeals” that “‘if we rule for Chadha, he will not be deported; if we uphold § 244(c)(2), the INS will execute its order and deport him.’” Chadha, 462 U.S. at 939-40 (emphases added) (quoting Chadha v. INS, 634 F.2d at 419). Had this Court meant to restrict its analysis to the Ninth Circuit, it would not have

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repeatedly used the first-person plural. Moreover, Amica does not explain why this Court would have addressed the Ninth Circuit’s jurisdiction, while ignoring questions about its own, if in fact it had them. The only plausible reading of the Court’s discussion, therefore, is that it was directed at the question whether this Court – and not just the Ninth Circuit – had jurisdiction to decide the case.
Amica is also incorrect in asserting that Chadha “did not decide . . . whether, without the intervenors, a sufficient case or controversy would have been present on appeal to this Court.” Amica Br. 28 (emphasis in original). Again, a straightforward reading of Chadha undermines her argument. This Court squarely stated, “prior to Congress’ intervention, there was adequate Art. III adverseness even though the only parties were the INS and Chadha.” Chadha, 462 U.S. at 939 (emphasis added). That adverseness did not evaporate when the status of the House and Senate changed from that of amici to that of intervenors as the case advanced to this Court. Indeed, as this Court later explained, in Chadha there was “Art. III adverseness even though the two parties agreed on the unconstitutionality of the one-House veto.” Cardinal Chem. Co. v. Morton Int’l, Inc., 508 U.S. 83, 88 n.9 (1993).
To be sure, “prudential, as opposed to Art. III, concerns” may exist when a case comes to this Court “in the absence of any participant supporting the validity of” a challenged statute. Chadha, 462 U.S. at 940. But just as those prudential concerns were “properly dispelled” in Chadha by the briefs filed by Congress, id., those concerns are dispelled here by BLAG’s participation. Whether or not the Executive

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Branch’s agreement with a lower court judgment implicates prudential concerns – and Ms. Windsor believes it does not, see infra pp. 31-35 – Article III poses no barrier to hearing this case.
4. Amica’s reliance on this Court’s per curiam decisions in Princeton University v. Schmid, 455 U.S. 100 (1982), and Moore v. Charlotte-Mecklenburg Board of Education, 402 U.S. 47 (1971), is also misplaced.
Amica herself acknowledges that Schmid, a case involving mootness, “is not on all fours” with this one. Amica Br. 30 n.18. At most, Schmid casts doubt on jurisdiction only when a party’s refusal “to take a position on the merits” forces the Court to either “decide hypothetical issues or to give advisory opinions about issues as to which there are not adverse parties.” 455 U.S. at 102.
None of these difficulties exists here. Ms. Windsor, the United States, and BLAG have all taken positions on the merits. Like the INS and Chadha, the United States and Ms. Windsor are “adverse parties.” See supra pp. 15-20. There is nothing “hypothetical” about Ms. Windsor’s $363,053 refund claim or her application for the Social Security survivors benefits.
Nor does Moore support Amica’s argument. To be sure, this Court did observe there that when “both litigants desire precisely the same result” there is “no case or controversy within the meaning of Art. III of the Constitution.” Moore, 402 U.S. at 48; see also Amica Br. 31. But it did so in a singular context far removed from this case. As this Court has explained, Moore was an “ancillary proceeding” to the well-

23
known Swann v. Charlotte-Mecklenburg desegregation lawsuit. N.C. State Bd. of Ed. v. Swann, 402 U.S. 43, 44 (1971); see Moore, 402 U.S. at 47. Moore sued the Board in a separate action to prevent it from complying with the desegregation remedy that Swann had been seeking in his ongoing lawsuit against the Board. Without consolidating the two cases, a three-judge district court entered an order enjoining both Moore and the Board from enforcing or seeking to enforce North Carolina’s antibusing statute. N.C. State Bd. of Ed., 402 U.S. at 44 n.2. Thus, as it arrived at this Court, Moore was essentially a case with two defendants against whom relief had been granted, but no plaintiff. This problem, although it resulted in Moore’s appeal being dismissed for lack of adverseness, did not preclude the Court from reaching and adjudicating the underlying constitutional issue, which it did in a companion case (in which the Board participated). See id. at 44.
Finally, it bears mentioning that although the House of Representatives relied on Moore at every stage of its briefing in Chadha, see House Supp. Br. 71, 1982 U.S. S. Ct. Briefs LEXIS 1631; House Reply Br. 12-13, 1982 WL 607218; House Br. 47, 1981 WL 388493; House Mot. to Dismiss 24-25, 1981 U.S. S. Ct. Briefs LEXIS 1429, not a single Justice was persuaded that Moore undermined this Court’s jurisdiction. This Court should once again reject that argument here. See also 20 Charles Alan Wright & Mary Kay Kane, Federal Practice and Procedure Deskbook § 13 nn.25-27 (2012) (distinguishing Schmid and Moore from Chadha for purposes of the Article III case or controversy requirement).

24
5. Amica recognizes that this Court has repeatedly granted review in cases where the Government has confessed error and therefore is seeking “precisely the same result” as the opposing party. Amica Br. 31 & n.19 (internal quotation marks omitted) (quoting GTE Sylvania, Inc. v. Consumers Union of the U.S., Inc., 445 U.S. 375, 383 (1980)). See generally Brian P. Goldman, Note, Should the Supreme Court Stop Inviting Amici Curiae to Defend Abandoned Lower Court Decisions?, 63 Stan. L. Rev. 907 (2011).
Amica contends, however, that “Government ‘confession of error’ is quite distinct” from the situation here. Amica Br. 31 n.19. She is mistaken. Amica conflates the question of adverseness under Article III with the question of appellate standing. With respect to adverseness, the only difference between confession of error cases and this case is the timing of the Government’s change of position. There is no reason why that timing affects the nature of the relationship between the litigants. Whether the Executive Branch declined to defend DOMA before the district court, or it waited until the court of appeals, the certiorari stage, or even merits briefing, see Millbrook v. United States, No. 11-10362, is immaterial. The factor that preserves the ongoing case or controversy here is the United States’ continuing enforcement of DOMA against Ms. Windsor.
Amica’s observation that in confession of error cases “the parties seek to undo a judgment,” while “here, the government agrees with the judgment below,” Amica Br. 31 n.19 (emphases in original), goes not to the relationship between the litigants, but

25
to the distinct question of the United States’ relationship to the judgment below. That is a matter of appellate standing, which as the next section of this brief explains, the United States satisfies.
B. Section 1254(1) And Ordinary Rules Of Appellate Practice Confirm That This Court Has Jurisdiction.
1. This Court reviews cases coming from the courts of appeals “[b]y writ of certiorari granted upon the petition of any party to any civil or criminal case before or after rendition of judgment or decree.” 28 U.S.C. § 1254(1). In Camreta v. Greene, 131 S. Ct. 2020 (2011), this Court held that the statute means what it says: Section 1254 “confers unqualified power on this Court to grant certiorari ‘upon the petition of any party.’” Id. at 2028 (emphasis in original) (quoting 28 U.S.C. § 1254(1)). The United States was undeniably a party to Ms. Windsor’s lawsuit in both the district court and the court of appeals. That fact disposes of the question whether, as a matter of statutory construction, the United States can seek review in this Court. It can.
2. “[O]rdinary rules of appellate jurisdiction,” Amica Br. 24, do not alter that conclusion. Once again, Chadha controls. There, this Court rejected the argument that the United States could not seek review in this Court because it was not an “aggrieved party.” Chadha, 462 U.S. at 930. This Court offered two bases for its holding. First, the INS was “sufficiently aggrieved” because “the Court of Appeals decision prohibit[ed] it from taking action it would otherwise take” – namely, deporting Chadha. Id. Second, the INS was “an aggrieved party for purposes

26
of taking an appeal” because an “Act of Congress it administers” was “held unconstitutional.” Id. at 931. Importantly, the “agency’s status as an aggrieved party” was “not altered by the fact that the Executive may agree with the holding that the statute in question is unconstitutional.” Id.
The same analysis governs this case. As in Chadha, although the Executive Branch may agree with the holding that the challenged statute is unconstitutional, the decision of the court of appeals prohibits the United States from taking action it would otherwise continue to take – here, enforcing DOMA by withholding the taxes collected from Dr. Spyer’s estate and denying Ms. Windsor Social Security survivors benefits. And it goes without saying that DOMA, an Act of Congress that the United States administers through many different agencies (including, in Ms. Windsor’s case, the IRS and the SSA), was held unconstitutional. The United States is therefore “sufficiently aggrieved” by the lower court’s judgment.
3. Amica attempts to downplay this aspect of Chadha by claiming that the case “spoke only in statutory terms” applicable to the since-repealed 28 U.S.C. § 1252, which concerned this Court’s mandatory jurisdiction. Amica Br. 26. That argument is unpersuasive. For purposes of deciding which parties are entitled to seek this Court’s review, nothing distinguishes former Section 1252 from Section 1254(1). Both expressly confer that right on “any party.”
The salient difference between Sections 1252 and 1254(1) does not concern who can seek review, but

27
rather whether this Court’s exercise of review is mandatory or permissive. Amica claims that the “permissive” nature of Section 1254 “weighs in favor of hewing to prudential limits on the exercise of jurisdiction.” Amica Br. 37. Even if that were true, it would be irrelevant in a case like this, where the need to resolve the constitutional question is manifest. The logic of the House Report that accompanied the legislation repealing Section 1252 is incompatible with Amica’s argument. That Report declared it “unlikely” that the contraction of this Court’s mandatory jurisdiction would lead it to “deny review to important constitutional questions that merit its immediate attention.” 100 H.R. Rep. No. 100-660, at 10 (1988). The class of litigants that could previously bring an appeal under Section 1252 would still, after repeal, be able to seek review of courts of appeals’ decisions by petition for certiorari. The Report further explained that “the removal of direct appeal authority should not create an obstacle to the expeditious review of cases of great importance.” Id. at 11. No one disputes the great importance of this case.
4. Amica’s reliance on Deposit Guaranty National Bank v. Roper, 445 U.S. 326 (1980), is similarly unavailing. Amica argues that the United States is not aggrieved because “[a] party who receives all that he has sought generally is not aggrieved by the judgment affording the relief and cannot appeal from it.” Amica Br. 38 (quoting Deposit Guar., 445 U.S. at 333). But in Chadha, this Court rejected an identical invocation of Deposit Guaranty. 462 U.S. at 930. There, Congress contended that because the INS had “already

28
received what it sought from the Court of Appeals” – namely, a holding that a statute permitting the onehouse veto was unconstitutional – the agency was “not an aggrieved party.” Id. In response, this Court flatly declared: “We cannot agree.” Id.
It did so for good reason. Deposit Guaranty addressed the question whether plaintiffs who have been awarded the relief they sought nonetheless qualify as aggrieved parties for purposes of appeal. The answer to that question says nothing about whether – as in Chadha and here – a defendant against whom judgment has been entered may appeal.7 Counsel are aware of no case in which a government defendant against whom judgment was entered has been denied the right to appeal on the grounds that it believed the adverse judgment was the correct legal result.
In any event, “this Court reviews judgments, not opinions.” Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 842 (1984). And in this case, there is no question that “judgment was entered against the United States.” Amica Br. 39. First, it was ordered to pay hundreds of thousands of dollars to Ms. Windsor. How this one-way transfer from the U.S. Treasury to Ms. Windsor could mean that both parties “prevailed” in any legal sense is a mystery. Furthermore, an Act of Congress that the United
7 Camreta, by contrast, involved the very different question of whether a defendant, in whose favor judgment has been entered, may nonetheless appeal because he retains an interest in seeking review of a legal issue.

29
States administers with respect to hundreds of different federal programs was “held unconstitutional” – essentially the situation that led this Court in Chadha to hold that the Government was “an aggrieved party.” 462 U.S. at 931. When a named defendant has a declaratory judgment entered against it, that defendant “has alleged a sufficiently ‘personal stake in the outcome of the controversy’ to support standing” to seek review of the lower court’s judgment. Horne, 557 U.S. at 445 (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)). By any objective standard, then, the United States is an aggrieved party, entitled to seek review of the judgment against it.8
8 Amica claims that Chadha does not answer the question whether the United States has “Article III standing to appeal” in this case. Amica Br. 28. She then suggests that such standing is lacking because, with respect to the judgment below, “no ‘injury’ to the United States was ‘caused’ by that judgment, nor could this Court’s overturning of that judgment provide ‘redress.’” Id. 31.
Amica is wrong. Her discussion confuses the requirements a plaintiff must show to invoke the judicial power of the United States in the first place, see Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992), with the quite different standard applicable to a defendant against whom the judicial power has been exercised and judgment has been entered. Although the words “injury,” “caused,” and “redress” appear in quotation marks, the brief provides no supporting authority for the proposition that Article III imposes injury, causation, and redressability requirements on defendants seeking to appeal. The question with respect to standing to appeal is not whether a defendant against whom judgment has been entered can show an “injury” from the lower court’s judgment (as a plaintiff must show an “injury traceable to the defendant,” Lewis v. Cont’l

30
Amica would have this Court fashion “more common-sense standards for determining who is a prevailing party.” Amica Br. 40. But common sense confirms the wisdom of the existing bright-line rule: a party prevails when a court “materially alters the legal relationship between the parties” in a manner that “directly benefits” the party in question. Lefemine v. Wideman, 133 S. Ct. 9, 11 (2012) (internal quotation marks omitted) (quoting Farrar v. Hobby, 506 U.S. 103, 111-12 (1992)). In this case, that definition makes Ms. Windsor, not the United States, the prevailing party. Accordingly, the Executive Branch’s agreement with the court below that DOMA is unconstitutional in no way forecloses the United States from obtaining review in this Court.9
Bank Corp., 494 U.S. 472, 477 (1990)), but rather, as Chadha makes clear, whether the defendant can show that it is “aggrieved” by the judgment, 462 U.S. at 930. As the preceding discussion shows, the United States is an aggrieved party, and in any event that requirement “does not have its source in the jurisdictional limitations of Art. III,” Deposit Guar., 445 U.S. at 333-34.
9 For the reasons outlined above, see supra pp. 15-29, Amica’s suggestion that “any government appeal from the District Court is barred,” Amica Br. 33 n.22, is also misplaced. The Article III case or controversy analysis is identical at both stages. Moreover, the relevant jurisdictional statute was satisfied here because that statute gives the courts of appeals “jurisdiction of appeals from all final decisions of the district courts.” 28 U.S.C. § 1291 (emphasis added). Finally, the United States was aggrieved by the district court’s judgment against it for the same reasons it was aggrieved by the Second Circuit’s affirmance of that judgment.

31
C. Prudential And Practical Concerns Strongly Favor This Court Exercising Its Jurisdiction Here.
It is axiomatic that “judging the constitutionality of an Act of Congress is ‘the gravest and most delicate duty that this Court is called on to perform.’” Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 204 (2009) (quoting Blodgett v. Holden, 275 U.S. 142, 148 (1927) (opinion of Holmes, J.)). Thus, this Court rarely delays reviewing cases where congressional statutes have been declared unconstitutional. See, e.g., United States v. Alvarez, 132 S. Ct. 2537 (2012); Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010); United States v. Stevens, 130 S. Ct. 1577 (2010). Doing so is necessary to avoid the confusion that inevitably arises from differing lower court decisions.10
1. There are particularly strong reasons for this Court to reject Amica’s suggestion that it leave the question of DOMA’s constitutionality undecided to
10 Amica points to no instance in which this Court has denied the Solicitor General’s request to review a lower court decision striking down a federal statute as unconstitutional. Counsel for Ms. Windsor are aware of just two. FCC v. Action for Children’s Television, 503 U.S. 914 (1992), was both interlocutory in posture and presented a real likelihood of an equally divided court, given that then-Judge Thomas was on the panel below. Mukasey v. ACLU, 555 U.S. 1137 (2009), was a case where this Court had already affirmed the grant of a preliminary injunction barring enforcement of the challenged statute on First Amendment grounds. Those two cases are a far cry from this one.

32
allow for more “time and reflection in the lower courts.” Amica Br. 38.
First, “federal district judges, sitting as sole adjudicators, lack authority to render precedential decisions binding other judges, even members of the same court.” Am. Elec. Power Co. v. Connecticut, 131 S. Ct. 2527, 2540 (2011); see Camreta, 131 S. Ct. at 2033 n.7. So even a raft of decisions striking down DOMA as applied to particular plaintiffs would leave thousands of similarly situated people unprotected until the relevant courts of appeals have ruled. See Br. of Amici Curiae Former Senior Justice Department Officials et al. And until then, individuals and couples may be forced to litigate each discrete claim for equal treatment separately.
Ms. Windsor’s predicament illustrates this very point. If this case were unwound back to the district court’s judgment, it is unclear whether that judgment would bind the Government with respect to Ms. Windsor’s ongoing Social Security claim. Collateral estoppel is available against the United States in only limited circumstances. See United States v. Mendoza, 464 U.S. 154, 162-64 (1984). Ms. Windsor obtained the existing judgment in her capacity as executor of Dr. Spyer’s will, J.A. 173, but in seeking her Social Security survivors benefits, she would be proceeding in her individual capacity. She might therefore be forced to relitigate DOMA’s constitutionality because “[a]cts performed by the same person in two different capacities are generally treated as the transactions of two different legal personages.” Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 543 n.6 (1986) (internal quotation marks and citation omitted).

33
Second, leaving DOMA’s constitutionality to the courts of appeals poses its own set of problems for married gay couples. It may well take years for “a uniform rule” to emerge. Amica Br. 38. And absent this Court’s intervention, uniformity may never come. In the meantime, married gay couples will continue to be denied equality under the law and essential government benefits that all other married couples can depend on. See Br. of Amici Curiae Empire State Pride Agenda et al. (highlighting some of the burdens DOMA imposes on married gay couples). Amica provides no persuasive argument why the speculative benefits of further percolation outweigh the quite tangible harms that DOMA inflicts every day.
2. The Executive Branch’s decision to enforce but not defend DOMA was expressly designed to ensure that this Court would remain “the final arbiter of the constitutional claims raised” in Ms. Windsor’s case. J.A. 192. Any suggestion that the Executive Branch should stop enforcing DOMA now that two courts of appeals and several district courts have held the statute unconstitutional ignores the difficulties that course of action would pose for tens of thousands of people. Indeed, it is a misnomer even to speak of “enforcing” or “declining to enforce” DOMA. Because DOMA cuts across a wide swath of federal law, “nonenforcement” in many instances would actually require government officials to take affirmative steps.
Even within the Executive Branch itself, “nonenforcement” raises a host of difficult issues. For example, the Appropriations Clause provides that “[n]o Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” U.S.

34
Const. art. I, § 9, cl. 7. Similarly, the Anti-Deficiency Act, 31 U.S.C. §§ 1341, 1350, dictates that “[i]f an executive officer on his own initiative had decided that, in fairness, [a claimant] should receive benefits despite [a] statutory bar, the official would risk prosecution.” OPM v. Richmond, 496 U.S. 414, 430 (1990). It is therefore unclear whether the Executive Branch could decide unilaterally to provide married gay couples with the federal benefits from which DOMA undeniably excludes them or whether “nonenforcement” would nevertheless require those couples to continue litigating to secure their right to equal treatment.11
Even if the Executive Branch could unilaterally start cutting checks from the U.S. Treasury, “nonenforcement” would do absolutely nothing to resolve the daily quandaries confronting married gay couples and the government actors outside the Executive Branch with whom they deal. DOMA affects every branch of the federal government, including Congress, the Judiciary, and independent agencies. Consider just a few examples:
 House Rules require a Member to prohibit “lobbying contact” between the Member’s “spouse” and the Member’s staff. House Rule XXV, cl. 7 (rev. Jan. 3, 2013), available at http://tinyurl.com/House-Rules113thCong. If
11 Once a federal court has issued an order requiring that benefits be provided, the Government may, through the Judgment Fund, see 28 U.S.C. § 2414; 31 U.S.C. § 1304(a), issue payments that the Appropriations Clause or the Anti-Deficiency Act might otherwise have prohibited.

35

DOMA controls, could a married

Representative direct his staff to meet with

his male spouse to discuss pending legislation

if his spouse is a lobbyist?

 The rules for admission to the Supreme Court

Bar provide that an applicant-attorney must

have two sponsors who are “not related to [the

applicant] by blood or marriage.” Supreme

Court of the United States, Instructions for

Admission to the Bar, available at

http://tinyurl.com/afb24er (last visited Feb.

18, 2013). Could an attorney sponsor her

female spouse for admission to this Court’s

Bar?

 The Federal Election Commission, an

independent agency, has promulgated a

regulation permitting the use of campaign

funds to pay for the “costs of travel by the

recipient Federal officeholder and an

accompanying spouse.”

11 C.F.R.

§ 113.2(a)(1). Could a married Senator be

prohibited from using campaign funds to

bring her female spouse with her on a trip?

In the absence of a definitive determination from this Court, married gay couples, government officials, and other actors whose behavior is affected by DOMA cannot rely on the Attorney General’s views about the statute to resolve any of these questions. See Br. of Amici Curiae New York et al. In short, prudential considerations cut decisively in favor of this Court resolving the constitutionality of DOMA, and resolving it now.

36
III. Because Ms. Windsor Has A Cause Of Action Only Against The United States, Whether BLAG Has Independent Article III Standing Does Not Affect This Court’s Jurisdiction.
1. Given the nature of Ms. Windsor’s cause of action, the United States is an indispensable party defendant in this case. With respect to Ms. Windsor’s cause of action for a tax refund, federal law requires the claimant to file suit against the United States – and permits her to sue no one else, including BLAG. See 26 U.S.C. § 7422(f)(1). And in general, “the proper defendant in a suit for prospective relief is the party prepared to enforce the relevant legal rule against the plaintiff.” Camreta v. Greene, 131 S. Ct. 2020, 2043 (2011) (Kennedy, J., dissenting). Thus, with respect to her claim for the $363,053 refund, Ms. Windsor was required to sue the United States, not BLAG.
Moreover, Ms. Windsor has never had any legally cognizable cause of action against BLAG for prospective or injunctive relief. Here, too, because her injuries are caused by the action of Executive Branch officials (in the IRS or SSA), Ms. Windsor is required to sue the United States or the relevant officials, and not the five members of the House leadership who constitute BLAG. In short, because BLAG did not cause Ms. Windsor’s injury and could not provide her with redress, Ms. Windsor could not have sued it, even assuming that BLAG is a legal entity subject to suit. Cf. Barnes v. Kline, 759 F.2d 21, 67 (D.C. Cir. 1984) (Bork, J., dissenting) (explaining that in Chadha, Congress functioned more like an amicus curiae than a party, as “[n]o judgment could be entered against Congress”),

37
vacated on other grounds sub nom. Burke v. Barnes, 479 U.S. 361 (1987).
2. Nor, of course, could BLAG have sued Ms. Windsor. Counsel are aware of no lawsuit in which a group of elected officials has been permitted to pursue a declaratory judgment action against a private individual in order to obtain a ruling on the constitutionality of a statute it supports. See Brief For Amici Curiae Former Senior Justice Department Officials et al.; cf. Camreta, 131 S. Ct. at 2043 (Kennedy, J., dissenting) (suggesting that the party there was “in effect fil[ing] a new declaratory judgment action in this Court”).
In light of this reality, BLAG can at most be an intervenor in an ongoing lawsuit between Ms. Windsor and some other party – in this case, the United States. As such, BLAG’s independent Article III standing is irrelevant to this Court’s ability to adjudicate this case.
3. The United States’ continuing presence as a party means that BLAG can assert “piggyback” standing without regard to Article III. Diamond v. Charles, 476 U.S. 54, 64 (1986). In Diamond, the State of Illinois did not appeal a decision striking down its abortion law, but a doctor who had intervened in the lower court proceedings did. Id. at 61. This Court rejected the doctor’s claim that he had independent Article III standing. Id. at 56. But it nonetheless confirmed that, had Illinois sought review, “this Court’s Rule 10.4 makes clear that Diamond, as an intervening defendant below,” also would have been “entitled to seek review, enabling him to file a brief on the merits, and to seek leave to

38
argue orally.” Id. at 64. The Court further explained that “this ability to ride ‘piggyback’ on the State’s undoubted standing exists only if the State is in fact an appellant before the Court; in the absence of the State in that capacity, there is no case for Diamond to join.” Id. The same principles apply here. Because the United States sought certiorari, BLAG can participate fully in the proceedings before this Court, regardless of whether it has independent Article III standing.
4. Whether BLAG would have had independent Article III standing if the United States had not petitioned for certiorari is a counterfactual question that this Court need not answer. Indeed, because of controlling Second Circuit precedent, neither court below found it necessary to resolve the nature of BLAG’s standing.12 This Court should reserve the question for another day, when answering it would actually affect this Court’s ability to reach the merits.
12 Along with the Fifth, Sixth, Tenth, and Eleventh Circuits, the Second Circuit has held that intervening parties need not establish independent standing so long as there is an Article III case or controversy between the original plaintiff and the original defendant. See U.S. Postal Serv. v. Brennan, 579 F.2d 188, 190 (2d Cir. 1978); Ruiz v. Estelle, 161 F.3d 814, 832 (5th Cir. 1998); Purnell v. City of Akron, 925 F.2d 941, 948 (6th Cir. 1991); San Juan Cnty., Utah v. United States, 503 F.3d 1163, 1172 (10th Cir. 2007); Dillard v. Chilton Cnty. Comm’n, 495 F.3d 1324, 1337 (11th Cir. 2007). This position conflicts with the view of the District of Columbia and Seventh Circuits. See Jones v. Prince George’s Cnty., Md., 348 F.3d 1014, 1017 (D.C. Cir. 2003); Solid Waste Agency of N. Cook Cnty. v. U.S. Army Corps of Eng’rs, 101 F.3d 503, 507 (7th Cir. 1996).

39 CONCLUSION
For the foregoing reasons, this Court should hold that it has jurisdiction to decide whether DOMA violates the Fifth Amendment.
Respectfully submitted,

Pamela S. Karlan Jeffrey L. Fisher STANFORD LAW SCHOOL
SUPREME COURT LITIGATION CLINIC 559 Nathan Abbott Way Stanford, CA 94305
James D. Esseks Joshua A. Block Leslie Cooper Steven R. Shapiro AMERICAN CIVIL
LIBERTIES UNION FOUNDATION 125 Broad Street New York, NY 10004

Roberta A. Kaplan Counsel of Record
Walter Rieman Jaren Janghorbani Colin S. Kelly PAUL, WEISS, RIFKIND,
WHARTON & GARRISON LLP 1285 Avenue of the Americas New York, NY 10019 (212) 373-3000 rkaplan@paulweiss.com
Arthur Eisenberg Mariko Hirose NEW YORK CIVIL
LIBERTIES UNION FOUNDATION 125 Broad Street New York, NY 10004

February 22, 2013

1a
APPENDIX A
SOCIAL SECURITY ADMINISTRATION NOTICE OF RECONSIDERATION [Caption Omitted in Printing]
EDITH SCHLAIN WINDSOR
[address redacted]
You asked us to take another look at your claim for Social Security widow’s benefits. Someone who did not make the first decision reviewed your case, including any new facts you gave us. After this review, we found that our first decision was correct.
You are not entitled to benefits because you do not meet the marriage requirements to be entitled to widow’s benefits.
On the enclosed form, we discuss the reasons for our decision in more detail.
Do You Disagree With The Decision?
If you disagree with the decision, you have the right to request a hearing. At the hearing, a person who has not seen your case before will look at it. That person is an Administrative Law Judge. The judge will review your case again and consider any new facts you have.
 You have 60 days to ask for a hearing.
 The 60 days start the day you receive this letter. We assume you got this letter 5 days after the date on it, unless you show us that you did not get it within the 5-day period.

2a
 You must have a good reason if you wait more than 60 days to ask for a hearing.
 You have to ask for a hearing in writing. We will ask you to fill out a Form HA-501, called “Request for Hearing.” If you want to make a request, please contact one of our offices. We can help you fill out the form.
Please read the enclosed pamphlet, “Your Right to an Administrative Law Judge Hearing and Appeals Council Review of Your Social Security Case.” It contains more information about the hearing.
There is a different way to appeal if you think the Social Security law is not constitutional. It is called expedited appeal. If you choose expedited appeal, after an agreement is signed by you and by our representative, you can go directly to court for a decision about whether the law is constitutional. The Social Security Administration cannot make that decision. Only the court can decide if the law is constitutional. Social Security will not make any other appeal decision about your claim for benefits if you choose an expedited appeal.
If you want to use this appeal or have any questions, you should contact any Social Security office within 60 days to file a written request.
New Application
You have the right to file a new application at any time, but filing a new application is not the same as appealing this decision. If you disagree with this decision and you file a new application instead of appealing:

3a
 you might lose some benefits, or not qualify for any benefits, and
 we could deny the new application using this decision, if the facts and issues are the same.
So, if you disagree with this decision, you should file an appeal within 60 days.
If You Have Any Questions
We invite you to visit our website at www.socialsecurity.gov on the Internet to find general information about Social Security. If you have any specific questions, you may call us toll-free at 1-800-772-1213, or call your local Social Security office at 1-866-335-1089. We can answer most questions over the phone. If you are deaf or hard of hearing, you may call our TTY number, 1-800-3250778. You can also write or visit any Social Security office. The office that serves your area is located at:
SOCIAL SECURITY ROOM 120 31ST FLOOR 26 FEDERAL PLAZA NEW YORK, NY 10278
If you do call or visit an office, please have this letter with you. It will help us answer your questions. Also, if you plan to visit an office, you may call ahead to make an appointment. This will help us serve you more quickly when you arrive at the office.
Social Security Administration

4a

RECONSIDERATION DETERMINATION

(Form SSA-662)

PROGRAM SERVICE CENTER
Processing Center Operations
Northeastern Program Service Center

DISTRICT OFFICE OR BRANCH OFFICE
Downtown NY, NY

NAME OF WAGE EARNER OR SELFEMPLOYED PERSON

SOCIAL SECURITY CLAIM NO.

Thea C Spyer NAME OF CLAIMANT

[redacted] TYPE OF CLAIM

Edith Schlain Windsor

Widow’s Insurance Benefits

DETERMINATION:
On November 15, 2011 [sic], you applied for widow’s insurance benefits and the lump sum death payment, on the record of Thea C Spyer, who died February 5, 2009. On or about April 22, 2011 you were told that your claim had been disallowed because you do not meet the marriage requirements for widow’s benefits, or the lump sum death payment. On June 15, 2011, you asked for reconsideration stating that the Defense of Marriage Act and Social Security law violate the United States Constitution.

The issue to be decided is whether or not you are entitled to widow’s insurance benefits, and the lump

5a
sum death payment on the record of Thea C Spyer. This depends on whether you meet the requirements for entitlement under the Social Security Act and the regulations of the Social Security Administration.
Section 202(e)(1) of the Act permits entitlement of a widow (as defined in Section 216(c) whose spouse died fully insured if she:
(1) is unmarried, and
(2) has attained
(a) age 60, or
(b) age 50 and is disabled, and
(3) (a) filed a widow’s benefit application, or
(b) meets one of the exceptions to filing, and
(4) is not entitled to a benefit amount on her own record which equals or exceeds the insured’s primary insurance amount.
Section 216(c) indicates that a woman qualifies as a widow only if the marriage lasted at least nine months before the insured died.
Section 202(i) of the Social Security Act, as amended in 1981, provides that upon the death of a fully or currently insured individual who dies on or after September 1, 1981, $255.00 shall be paid in a lumpsum to the person, if any, determined by the Secretary to be the widow or widower of the deceased and to have been living in the same household as the deceased at the time of death.
If there is no such person, or if such person dies before receiving payment, then such amount is to be paid in the following order of priority:

6a
(1) To the widow or widower, other than a divorced spouse, who is entitled to benefits (or would have been so entitled had a timely application been filed) as a widow, widower, mother or father, based on the earnings record of the deceased individual for the month of death.
(2) In equal shares, to each child who is entitled to benefits (or would have been so entitled had a timely application been filed) based on the earnings record of the deceased individual for the month of death.
The Social Security Act provides that an individual is the insured’s widow or widower if she or he:
 is considered validly married to the insured under State law, or
 is not validly married but has the same status as a spouse to share in the insured’s intestate personal property, or
 meets the requirements of the Federal deemed marriage provision.
Individuals who are free to marry each other may enter into a valid marriage under the law of all States.
Public Law 104-199, Section 2, amends Chapter 115 of title 28, United States Code by adding Sec. 1738C after Sec. 1738B:
No state, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is

7a
treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.’ .
Public Law 104-199, Section 3, amended Chapter 1 of title 1, United States Code by adding the following definition of ‘marriage’ and ‘spouse’:
In 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.’ .
Section 216(a)(1) of the Act states: The term “spouse” means a wife as defined in subsection (b) or a husband as defined in subsection (f).
Section 216(a)(2) of the Act states: The term “surviving spouse” means a widow as defined in subsection (c) or a widower as defined in subsection (g).
Section 202(e) of the Social Security Act provides for the payment of monthly benefits to an otherwise qualified woman who meets the legal status requirement as widow under Section 216(h)(1) of the Act.
Section 216(h)(1)(A) of the Social Security Act provides that a claimant is the spouse of a worker for purposes of Social Security benefits if, under the law of the state of the worker’s domicile at the time of death, the claimant would be considered the worker’s spouse or would have the same status as spouse for

8a
purposes of inheriting personal property in the event the worker left no will.
When you applied for widow’s benefits, and the lump sum death payment, on the record of Thea C Spyer, you presented your marriage certificate issued October 28, 2010, which indicated you married Thea C Spyer on May 22, 2007 in Toronto Canada. You also submitted a death certificate for Thea C Spyer, which verified her date of death as February 05, 2009 and listed you as the surviving spouse of the deceased.
You do not qualify for benefits as the surviving spouse of Thea C Spyer, or the lump sum death payment, because you do not meet the definition of a widow as defined in the Social Security Act. A widow by definition is the surviving spouse of a deceased wage earner; a spouse by definition is someone of the opposite sex who is a husband or a wife. Although your marriage to Thea C Spyer is considered valid in Canada and in the state of her domicile at the time of death, Federal Regulations define the term marriage as: a legal union between one man and one woman as husband and wife. In your request, you state that you should be awarded benefits because the Defense of Marriage Act, and Social Security law violates the United States Constitution. We are not permitted to make judgment regarding the constitutionality of the law at this level of your request, and we must follow the law as written.
Accordingly, upon reconsideration, the initial determination is affirmed. The initial determination is correct and proper and in accordance with the pertinent provisions of the law and regulations.

9a Authority: Section (s) 202(e), 202(i), and 216 of the
Social Security Act. Public Law 104-199 Section (s) 2 and 3.
Social Security Administration
April 28, 2012 Enclosure(s):
Form SSA-662 SSA Pub No 70-10281

10a APPENDIX B WRITTEN REQUEST FOR EXPEDITED APPEAL

Claimant: Claimant’s SSN: Wage Earner: Wage Earner’s SSN:

Edith S. Windsor [redacted] Thea C. Spyer [redacted]

Pursuant to 20 C.F.R. §§ 405.701–405.725 (attached as Tab 4), Edith S. Windsor hereby requests expedited appeal of her claim for survivors benefits (including widow’s insurance benefits and the lump-sum death benefit). On April 28, 2012, the Social Security Administration (the “SSA”) rejected Ms. Windsor’s request for reconsideration. A copy of this rejection letter is attached as Tab 3.
Ms. Windsor does not dispute the findings of fact or the interpretation of the controlling law by the SSA. However, Ms. Windsor believes, consistent with her prior correspondence with the SSA (attached as Tab 2), that Section 3 of the Defense of Marriage Act, 1 U.S.C. § 7 (“DOMA”), and (insofar as it precludes a surviving spouse of a same-sex married couple from qualifying as a surviving spouse or widow) Social Security law violate the United States Constitution. Indeed, since Ms. Windsor filed her request for survivors benefits, every federal circuit, district, or bankruptcy court to have considered this issue in the non-immigration context has agreed that DOMA is unconstitutional for the very reasons asserted by Ms. Windsor. See Massachusetts v. Dep’t of Health and

11a
Human Servs., Gill v. Office of Pers. Mgmt., Nos. 102204, 10-2207, 10-2214 (1st Cir. May 31, 2012); Dragovich v. Dep’t of Treasury, No. C 10-1564 (CW), 2012 WL 1909603 (N.D. Cal. May 24, 2012); Golinski v. Office of Pers. Mgmt., 824 F. Supp. 2d 968 (N.D. Cal. 2012); In re Balas, 449 B.R. 567 (Bankr. C.D. Cal. 2011). Because DOMA is the only reason that Ms. Windsor was denied these SSA benefits to which she is otherwise entitled, she respectfully submits that her request for an expedited appeal should be granted.
Please copy Colin S. Kelly, Ms. Windsor’s attorney, on all correspondence with Ms. Windsor. A copy of Form SSA-1696-U4 (Appointment of Representative) is attached in Tab 2.
* * *
I declare under penalty of perjury that I have examined all the information in this written request, and on any accompanying statements or forms, and it is true and correct to the best of my knowledge.
Date: June 05, 2012 Edith S. Windsor Edith S. Windsor (Claimant) [redacted]
Colin S. Kelly Colin S. Kelly (Attorney) Paul, Weiss, Rifkind, Wharton
& Garrison, LLP 1285 Avenue of the Americas New York, NY 10019-6064 Tel. No.: (212) 373-3961 Fax No.: (212) 492-0961

12a

APPENDIX C

Form Approved OMB No. 0960-0045

SOCIAL SECURITY ADMINISTRATION STATEMENT OF CLAIMANT OR OTHER PERSON

Name of Wage Earner, SelfEmployed Person, or SSI Claimant

Social Security Number

Thea Spyer

[redacted]

Name of Person Mating Statement (if other than above wage earner, self-employed person, or SSI claimant)
Edith Windsor

Relationship to Wage Earner, Self-Employed Person, or SSI Claimant
SurSpo

Understanding that this statement is for the use of the Social Security Administration, I hereby certify that –

1. EAP Requirements

For the EAP to apply, all of the following requirements must be met:

A formal decision at the reconsideration level or higher has been made.

The EAP request is in writing.

The written request was filed timely, that is:

Within 60 days from date of receipt of the notice of determination or decision, unless good cause for late filing is found (GN 03101.020), or

13a After filing a timely request for a hearing or Appeals Council (AC) review but prior to a decision having been issued. The claimant is willing to enter into a written agreement with SSA in which he/she concedes that: SSA’s determination or decision was correct based on the law and the facts in the case; and The law, or a specific section of the law applicable in his/her case, is unconstitutional, and The adverse determination or decision is due solely to the unconstitutionality of the law which SSA followed, or The constitutional issue is the sole issue precluding the individual from receiving benefits or receiving a favorable determination in a nonclaim earnings discrepancy case.
1. Claimant’s Written Statement If, after explaining the requirements, the claimant decides to proceed with EAP, then the FO will: Obtain a signed statement indicating that he/she: Received an explanation of EAP. Agrees that the requirements in GN 03107.100D.1. are met; and Wishes to enter into an EAP agreement.
Form SSA-795 (12-2002) EF (12-2002) Destroy Prior Editions

14a

***

Paperwork Reduction Act Statement – This information collection meets the requirements of 44 U.S.C. §3507, as amended by Section 2 of the Paperwork
Reduction Act of 1995. You do not need to answer these questions unless we display a valid Office of Management and Budget control number. We estimate that it will take about 15 minutes to read the instructions, gather the facts, and
answer the questions. SEND THE COMPLETED FORM TO YOUR LOCAL SOCIAL SECURITY OFFICE. The office is listed under U. S.
Government agencies in your telephone directory or you may call Social
Security at 1-800-772-1213. You may send comments on our time estimate above to: SSA, 1338 Annex Building, Baltimore, MD 21235-0001. Send only comments relating to our time estimate to this address, not

I declare under penalty of perjury that I have examined all the information on this form, and on any accompanying statements or forms, and it is true and correct to the best of my knowledge. I understand that anyone who knowingly gives a false or misleading statement about a material fact in this information, or causes someone else to do so, commits a crime and may be sent to prison, or may face other penalties, or both.

SIGNATURE OF PERSON MAKING STATEMENT

Signature (First name, middle initial, last name) (Write in ink)
Sign Here> Edith S. Windsor

Date (Month, day, year)
August 9, 2012
Telephone Number (include Area Code)

[redacted]

Mailing Address (Number and street, Apt. No., P.O. Box, Rural Route)

[redacted]

City and State

ZIP Code

New York, NY

[redacted]

Witnesses are required ONLY if this statement has been signed by mark (X) above. If signed by mark (X), two witnesses to the signing who know the individual must sign below, giving their full addresses.

15a

1. Signature of Witness

2. Signature of Witness

Address (Number and street, Address (Number and street,

City, State and ZIP Code)

City, State and ZIP Code)

NEW YORK, N.Y. Jul 18 2012 21100
SSA FIELD OFFICE

 
 No. 12-307
In the Supreme Court of the United States
UNITED STATES OF AMERICA, PETITIONER v.
EDITH SCHLAIN WINDSOR, IN HER CAPACITY AS EXECUTOR OF THE ESTATE OF THEA CLARA SPYER,
ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
BRIEF FOR THE UNITED STATES ON THE MERITS QUESTION
DONALD B. VERRILLI, JR. Solicitor General Counsel of Record
STUART F. DELERY Principal Deputy Assistant Attorney General
SRI SRINIVASAN Deputy Solicitor General
PRATIK A. SHAH Assistant to the Solicitor General
MICHAEL JAY SINGER AUGUST E. FLENTJE HELEN L. GILBERT
Attorneys Department of Justice Washington, D.C. 20530-0001 SupremeCtBriefs@usdoj.gov (202) 514-2217

QUESTION PRESENTED
Section 3 of the Defense of Marriage Act (DOMA) defines the term “marriage” for all purposes under federal law, including the provision of federal benefits, as “only a legal union between one man and one woman as husband and wife.” 1 U.S.C. 7. It similarly defines the term “spouse” as “a person of the opposite sex who is a husband or a wife.” Ibid. The question presented is:
Whether Section 3 of DOMA violates the Fifth Amendment’s guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their state.
(I)

PARTIES TO THE PROCEEDING
Petitioner, who was a defendant in the district court and an appellant in the court of appeals, is the United States of America.
The private individual respondent, who was plaintiff in the district court and an appellee in the court of appeals, is Edith Schlain Windsor.
Respondent Bipartisan Legal Advisory Group of the United States House of Representatives intervened in this case in defense of Section 3 of DOMA.
(II)

TABLE OF CONTENTS

Page

Opinions below ................................................................................ 1 Jurisdiction ...................................................................................... 1
Constitutional and statutory provisions involved.......................2
Statement ......................................................................................... 2 Summary of argument ................................................................. 12
Argument: Section 3 of DOMA violates equal protection......................16
A. Classifications based on sexual orientation should be subject to heightened scrutiny ................. 18
1. Gay and lesbian people have been subject
to a history of discrimination ................................. 22 2. Sexual orientation bears no relation to ability
to perform or contribute to society ....................... 27 3. Gay and lesbian people possess a
distinguishing characteristic that defines them as a group ....................................................... 29
4. Gay and lesbian people are minorities
with limited political power .................................... 32 B. Section 3 of DOMA fails heightened scrutiny...........37
1. Morality .................................................................... 38 2. Traditional definition of marriage.........................39
3. Procreation and child-rearing................................41 4. Sovereign choice ...................................................... 44
5. Federal fisc...............................................................45
6. Other interests asserted by BLAG ....................... 47 a. Uniformity and administrability ...................... 47
b. Proceeding with caution .................................... 50 C. The government does not challenge the
constitutionality of DOMA Section 3 under deferential rational-basis review, but Section 3 would
fail a more searching form of that review ................. 51
Conclusion ...................................................................................... 54 Appendix — Constitutional and statutory provisions ........... 1a

(III)

IV

TABLE OF AUTHORITIES

Cases:

Page

Armour v. City of Indianapolis, 132 S. Ct. 2073 (2012) ......................................................................................51
Baehr v. Lewin, 852 P.2d 44 (Haw. 1993)...............................3
Baker v. Nelson, 409 U.S. 810 (1972)............................7, 8, 20
Ben-Shalom v. Marsh, 881 F.2d 454 (7th Cir. 1989), cert. denied, 494 U.S. 1004 (1990) .....................21, 22
Bishop v. Wood, 426 U.S. 341 (1976).....................................18
Board of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356 (2001) ......................................................................................39
Bolling v. Sharpe, 347 U.S. 497 (1954) .................................16
Boutilier v. INS, 387 U.S. 118 (1967) ...................................24
Bowen v. Bowen, 688 So. 2d 1374 (Miss. 1997)....................25
Bowen v. Gilliard, 483 U.S. 587 (1987).....................20, 30, 32
Bottoms v. Bottoms, 457 S.E.2d 102 (Va. 1995)...................25
Bowers v. Hardwick, 478 U.S. 186 (1986), overruled by, Lawrence v. Texas, 539 U.S. 558 (2003)..........21, 39, 40
Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263 (1993) ...............................................................................31
Califano v. Goldfarb, 430 U.S. 199 (1977) ............................50
Christian Legal Soc’y v. Martinez, 130 S. Ct. 2971 (2010) ......................................................................................31
City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) ...................................................................... passim
City of Richmond v. J. A. Croson Co., 488 U.S. 469 (1989) ......................................................................................19
Clark v. Jeter, 486 U.S. 456 (1988) ............................19, 29, 37
Equality Found. v. City of Cincinnati, 54 F.3d 261 (6th Cir. 1995), vacated by, 518 U.S. 1001 (1996) .......21, 26
FCC v. Beach Commc’ns, Inc., 508 U.S. 307 (1993)............52

V

Cases—Continued:

Page

Frontiero v. Richardson, 411 U.S. 677 (1973) ..............................................................14, 20, 28, 29, 35
Garcia v. United States, 469 U.S. 70 (1984) ........................48
Golinski v. OPM, 824 F. Supp. 2d 968 (N.D. Cal. 2012) .......................................................................................49
Graham v. Richardson, 403 U.S. 365 (1971) ...........11, 30, 46
H.H., Ex parte, 830 So. 2d 21 (Ala. 2002).............................25
Heller v. Doe, 509 U.S. 312 (1993) .............................11, 40, 51
Hernandez-Montiel v. INS, 225 F.3d 1084 (9th Cir. 2000) .................................................................................30, 32
High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563 (9th Cir. 1990) ..............................21, 22
Hill v. INS, 714 F.3d 1470 (9th Cir. 1983) ...........................24
INS v. Chadha, 462 U.S. 919 (1983)........................................7
Jimenez v. Weinberger, 417 U.S. 628 (1974)........................48
Lalli v. Lalli, 439 U.S. 259 (1978)..........................................27
Lawrence v. Texas, 539 U.S. 558 (2003) ...................... passim
Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356 (1973) ...............................................................................51
Lesbian/Gay Freedom Day Comm., Inc. v. INS, 541 F. Supp. 569 (N.D. Cal. 1982)..............................................24
Loving v. Virginia, 388 U.S. 1 (1967) ...................................45
Lyng v. Castillo, 477 U.S. 635 (1986) ........................30, 32, 36
Marriage Cases, In re, 183 P.3d 384 (Cal. 2008).................34
Massachusetts v. United States Dep’t of Health & Human Servs., 682 F.3d 1 (1st Cir. 2012), petitions for cert. pending, Nos. 12-13 (filed June 29, 2012), 12-15 (filed July 3, 2012), and 12-97 (filed July 20, 2012) .............................................................................. passim
Massachusetts Bd. of Ret. v. Murgia, 427 U.S. 307 (1976) ................................................................................28, 36

VI

Cases—Continued:

Page

Mathews v. Lucas, 427 U.S. 495 (1976) ..........................27, 30
Mississippi Univ. for Women v. Hogan, 458 U.S. 718 (1982) ......................................................................................37
Palmore v. Sidoti, 466 U.S. 429 (1984) .................................39
Pedersen v. OPM, No. 3:10-cv-1750, 2012 WL 3113883 (D. Conn. July 31, 2012)........................................44
Plyler v. Doe, 457 U.S. 202 (1982) ...................................15, 46
Pryor v. Municipal Court, 599 P.2d 636 (Cal. 1979) ..........25
Richenberg v. Perry, 97 F.3d 256 (8th Cir. 1996), cert. denied, 522 U.S. 807 (1997).........................................21
Romer v. Evans, 517 U.S. 620 (1996)......19, 26, 39, 46, 52, 53
San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973) ...................................................................................36
Steffan v. Perry, 41 F.3d 677 (D.C. Cir. 1994).....................21
Thomasson v. Perry, 80 F.3d 915 (4th Cir.), cert. denied, 519 U.S. 948 (1996).........................................21
Turner v. Safley, 482 U.S. 78 (1987) .....................................41
United States v. Virginia, 518 U.S. 515 (1996) ..............................................................14, 15, 19, 37, 40
United States Dep’t of Agric. v. Moreno, 413 U.S. 528 (1973) ......................................................................................52
Watkins v. United States Army, 847 F.2d 1329 (9th Cir. 1988), rev’d en banc, 875 F.3d 699 (9th Cir. 1989) .......................................................................................32
Watson v. City of Memphis, 373 U.S. 526 (1963)................50
Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483 (1955) ...............................................................................51
Woodward v. United States, 871 F.2d 1068 (Fed. Cir. 1989), cert. denied, 494 U.S. 1003 (1990) ...........................21
Zobel v. Williams, 457 U.S. 55 (1982) ...................................47
Zuber v. Allen, 396 U.S. 168 (1969).......................................48

VII

Constitution and statutes:

Page

U.S. Const.: Art. I, § 8 (Spending Clause) ...........................................45 Art. III..................................................................................6 Amend. V....................................................................4, 6, 54 Due Process Clause ....................................................16 Amend. X............................................................................45 Amend. XIV: Due Process Clause ....................................................19 Equal Protection Clause ............................................19
Act of Feb. 5, 1917, ch. 29, § 3, 39 Stat. 875 .........................24 Defense of Marriage Act, Pub. L. No. 104-199, 110
Stat. 2419: § 2, 110 Stat. 2419 (28 U.S.C. 1738C)..........................2, 45 § 3, 110 Stat. 2419 (1 U.S.C. 7) ............................... passim
Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978 ...............................................................................24
10 U.S.C. 654 ............................................................................24 26 U.S.C. 2056(a) .......................................................................4 28 U.S.C. 530D ...........................................................................4 38 U.S.C 101(3) ........................................................................17 38 U.S.C 101(31) ......................................................................17 38 U.S.C 1310 ...........................................................................17 38 U.S.C 2402(a)(5)..................................................................17 38 U.S.C 2402(a)(6)..................................................................17 Public Statute Laws of the State of Connecticut, 1808
tit. LXVI, ch. 1, § 2, 294-295 & n.1 (enacted 1642; rev. 1750)................................................................................22 Tenn. House Bill No. 600, Pub. Ch. 278 (2011), http://state.tn.us/sos/acts/107/pub/pc0278.pdf .................. 33

VIII

Miscellaneous:

Page

Am. Acad. of Child and Adolescent Psychiatry, Gay, Lesbian, Bisexual, or Transgender Parents Policy Statement, 2009, http://www.aacap.org/cs/root/ policy_statements/gay_lesbian_transgender_and_ bisexual_parents_policy_statement ................................... 42
Am. Acad. of Pediatrics, Coparent or Second-Parent Adoption by Same-Sex Parents, Feb. 2002, http:// aappolicy.aappublications.org/cgi/content/full/ pediatrics;109/2/339 ..............................................................42
Am. Med. Ass’n, AMA Policies on GLBT Issues, http://www.ama-assn.org/ama/pub/about-ama/ourpeople/member-groups-sections/glbt-advisorycommittee/ama-policy-regardingsexual-orientation.shtml ......................................................42
Am. Psychiatric Ass’n, Position Statement on Homosexuality and Civil Rights (1973), reprinted in 131 Am. J. Psychiatry 497 (1974) .......................................28
Am. Psychological Ass’n,
Just the Facts About Sexual Orientation and Youth, http://www.apa.org/pi/lgbt/resources/ just-the-facts.pdf .........................................................32
Report of the American Psychological Association Task Force on Appropriate Therapeutic Responses to Sexual Orientation (2009), http://www.apa.org/pi/lgbt/resources/ therapeutic-response.pdf ...........................................32
Sexual Orientation, Parents, & Children, July 2004, http://www.apa.org/about/governance/ council/policy/parenting.aspx ....................................42

IX

Miscellaneous—Continued:

Page

Timothy J. Biblarz & Judith Stacey, How Does the Gender of Parents Matter?, 72 J. Marriage & Family 3 (2010), http://www.squareonemd.com/pdf/ Does%20the%20Gender%20of%20Parents%20Matt er%202010.pdf ....................................................................... 42
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 ....................................................42
Cong. Budget Office, The Potential Budgetary Impact of Recognizing Same-Sex Marriages, 2004, http://www.cbo.gov/sites/default/files/ cbofiles/ftpdocs/55xx/doc5559/06-21-samesexmarriage.pdf ....................................................................46
142 Cong. Rec. (1996):
p. 22,453 ..............................................................................47
p. 22,459 ..............................................................................47
John Hart Ely, Democracy and Distrust (1980) ................21
Employment of Homosexuals and Other Sex Perverts in Government, Interim Report submitted to the Committee by its Subcommittee on Investigations pursuant to S. Res. 280, S. Doc. No. 241, 81st Cong., 2d Sess. (1950) ..........................................................23
William N. Eskridge, Jr., Privacy Jurisprudence and the Apartheid of the Closet, 1946-1961, 24 Fla. St. U. L. Rev. 703 (1997) ......................................................25
FBI:
Hate Crime Statistics 2011, http://www.fbi.gov/ about-us/cjis/ucr/hate-crime/2011/tables/ table-1 ...........................................................................24
Hate Crime Statistics, 2007, http://www2.fbi.gov/ ucr/hc2007/table_01.htm ............................................25

X

Miscellaneous—Continued:

Page

Florida State Legislative Investigation Committee, Report: Homosexuality and Citizenship in Florida (1964).................................................................................26
H.R. Rep. No. 664, 104th Cong., 2d Sess. (1996)........passim
Douglas C. Haldeman, The Practice and Ethics of Sexual Orientation Conversion Therapy, 62 J. Consulting & Clinical Psychol. 221 (1994).........................32
Gregory M. Herek et al., Demographic, Psychological, and Social Characteristics of Self-Identified Lesbian, Gay, and Bisexual Adults in a US Probability Sample, 7 Sexuality Res. & Soc. Pol’y 176 (2010), http://www.springerlink.com/content/ k186244647272924/fulltext.pdf ............................................ 31
Andrew Koppelman, The Difference the MiniDOMAs Make, 38 Loy. U. Chi. L.J. 265 (2007)................33
National Conference of State Legislatures, State Same-Sex Marriage Laws: Legislatures and Courts, last updated Feb. 14, 2013, http://www.ncsl. org/issues-research/human-services/same-sexmarriage-laws.aspx ..............................................................34
Richard A. Posner, Sex and Reason (1992).........................32
Remarks by the President and Vice President at Signing of the Don’t Ask, Don’t Tell Repeal Act of 2010, Dec. 22, 2010, http://www.whitehouse. gov/the-press-office/2010/12/22/remarks-presidentand-vice-president-signing-dont-ask-dont-tellrepeal-a ..................................................................................28
Steven A. Rosen, Police Harassment of Homosexual Women and Men in New York City, 1960-1980, 12 Colum. Hum. Rts. L. Rev. 159 (1980) ................................25

XI

Miscellaneous—Continued:

Page

Brad Sears et al., The Williams Institute, Documenting Discrimination on the Basis of Sexual Orientation and Gender Identity in State Employment, Sept. 2009, http://williamsinstitute.law.ucla.edu/ research/workplace/documenting-discrimination-on -the-basis-of-sexual-orientation-and-genderidentity-in-state-employment .......................................23, 24
A.G. Sulzberger, Ouster of Iowa Judges Sends Signal to Bench, N.Y. Times, Nov. 4, 2010 .............................34
U.S. Gen. Accounting Office, Report No. GAO-04353R, Defense of Marriage Act: Update to Prior Report (2004), http://www.gao.gov/assets/100/ 92441.pdf ..................................................................................3
Teresa Welsh, Should Employers Be Able to Fire Someone for Being Gay?, U.S. News, May 14, 2012, http://www.usnews.com/opinion/articles/2012/05/14/ should-employers-be-able-to-fire-someone-forbeing-gay ...............................................................................35
Robert Wintemute, Sexual Orientation and Human Rights (1995) .........................................................................26

In the Supreme Court of the United States
No. 12-307 UNITED STATES OF AMERICA, PETITIONER
v. EDITH SCHLAIN WINDSOR, IN HER CAPACITY AS EXECUTOR OF THE ESTATE OF THEA CLARA SPYER,
ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
BRIEF FOR THE UNITED STATES ON THE MERITS QUESTION
OPINIONS BELOW
The opinion of the court of appeals (Supp. App. 1a83a)1 is reported at 699 F.3d 169. The opinion of the district court (Pet. App. 1a-22a) is reported at 833 F. Supp. 2d 394.
JURISDICTION
The judgment of the district court was entered on June 6, 2012. Notices of appeal were filed on June 8, 2012, and June 14, 2012 (Pet. App. 25a-26a, 27a-29a). A petition for a writ of certiorari before judgment was filed on September 11, 2012. The judgment of the court of appeals was entered on October 18, 2012. On
1 “Supp. App.” refers to the appendix to the government’s supplemental brief at the certiorari stage.
(1)

2
October 26, 2012, the United States filed a supplemental brief pursuant to Rule 15.8 of the Rules of this Court. The petition for a writ of certiorari was granted on December 7, 2012. The jurisdiction of this Court rests on 28 U.S.C. 1254(1).
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
Pertinent constitutional and statutory provisions are set forth in an appendix to this brief. App., infra, 1a.
STATEMENT
1. a. Congress enacted the Defense of Marriage Act (DOMA) in 1996. Pub. L. No. 104-199, 110 Stat. 2419. DOMA contains two operative provisions. The first, Section 2, provides that no State is required to give effect to any public act, record, or judicial proceeding of another State that treats a relationship between two persons of the same sex as a marriage under its laws. DOMA § 2, 110 Stat. 2419 (28 U.S.C. 1738C).
The second provision, Section 3, which is at issue in this case, defines “marriage” and “spouse” for all purposes under federal law to exclude marriages between persons of the same sex, regardless of whether a marriage is recognized under state law. Section 3 provides:
In 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

3
only to a person of the opposite sex who is a husband or a wife. DOMA § 3, 110 Stat. 2419 (1 U.S.C. 7). b. Congress enacted DOMA in response to the Hawaii Supreme Court’s decision in Baehr v. Lewin, 852 P.2d 44 (1993), which held that the denial of marriage licenses to same-sex couples was presumptively invalid under the Hawaii Constitution. H.R. Rep. No. 664, 104th Cong., 2d Sess. 2 (1996) (House Report). Hawaii ultimately did not permit same-sex marriage, but other states later recognized such marriages under their respective laws. Section 3 of DOMA does not purport to invalidate same-sex marriages in those states that permit them. Section 3, however, excludes such marriages from recognition for purposes of more than 1000 federal statutes and programs whose administration turns in part on individuals’ marital status. See U.S. Gen. Accounting Office, Report No. GAO-04-353R, Defense of Marriage Act: Update to Prior Report 1 (2004), http://www.gao.gov/assets/100/92441.pdf (identifying 1138 federal laws contingent on marital status or in which marital status is a factor). Section 3 thus denies to legally married same-sex couples many substantial benefits afforded to legally married opposite-sex couples under federal employment, immigration, public health and welfare, tax, and other laws. Id. at 16-18. 2. In 2007, plaintiff married Thea Spyer, her samesex partner of more than 40 years, in Canada. The couple resided in New York. When Spyer died in 2009, she left her estate for plaintiff’s benefit. Pet. App. 3a; J.A. 152 (Am. Compl. ¶¶ 10, 11). In her capacity as executor of Spyer’s estate, plaintiff paid $363,053 in federal estate taxes. She then

4 filed a refund claim under 26 U.S.C. 2056(a), which provides that property that passes from a decedent to a surviving spouse may generally pass free of federal estate taxes. The Internal Revenue Service (IRS) denied the refund claim solely on the ground that plaintiff is not a “spouse” within the meaning of DOMA Section 3 and thus not a “surviving spouse” within the meaning of Section 2056(a). Pet. App. 3a4a; J.A. 169-170 (Am. Compl. ¶¶ 72-78), 245-252 (IRS denial letter). The IRS did not identify or address any question concerning the recognition of plaintiff ’s marriage under New York law. J.A. 251-252.
Plaintiff filed this tax-refund suit challenging the constitutionality of Section 3 in the United States District Court for the Southern District of New York. She contended that, by treating legally married samesex couples in New York differently from legally married opposite-sex couples in New York, Section 3, as applied by the IRS, violates the equal protection component of the Fifth Amendment. She sought declaratory and injunctive relief, as well as recovery of the $363,053 in federal estate taxes paid by Spyer’s estate. Pet. App. 4a; J.A. 172 (Am. Compl. ¶¶ 82-85).
3. a. After plaintiff filed her complaint, the Attorney General sent a notification to Congress under 28 U.S.C. 530D that the President and he had determined that Section 3 of DOMA is unconstitutional as applied to same-sex couples who are legally married under state law. J.A. 183-194. The letter explained that, while the Department of Justice had previously defended Section 3 where binding precedent in the circuit required application of rational-basis review to classifications based on sexual orientation, the President and the Department of Justice had conducted a

5 new examination of the issue after two lawsuits (this one and Pedersen v. OPM, petition for cert. before judgment pending, No. 12-231 (filed Aug. 21, 2012)) had been filed in a circuit that had yet to address the appropriate standard of review. J.A. 184. The Attorney General explained that, after examining factors identified by this Court as relevant to the applicable level of scrutiny—including the history of discrimination against gay and lesbian individuals and the irrelevance of sexual orientation to legitimate policy objectives—the President and he had concluded that Section 3 warrants application of heightened scrutiny rather than rational-basis review. J.A. 185-189. The Attorney General further explained that the President and he had concluded that Section 3 fails that standard and is therefore unconstitutional. J.A. 189-191.
The Attorney General’s letter reported that, notwithstanding this determination, the President had “instructed Executive agencies to continue to comply with Section 3 of DOMA, consistent with the Executive’s obligation to take care that the laws be faithfully executed, unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law’s constitutionality.” J.A. 191-192. The Attorney General explained that “[t]his course of action respects the actions of the prior Congress that enacted DOMA, and it recognizes the judiciary as the final arbiter of the constitutional claims raised.” Ibid. In the interim, the Attorney General instructed the Department’s lawyers to notify courts of the President’s views and cease defense of Section 3. J.A. 191193. Finally, the Attorney General noted that the Department’s lawyers would take appropriate steps to “provid[e] Congress a full and fair opportunity to

6 participate” in litigation concerning the constitutionality of Section 3. J.A. 193.
b. Following the Attorney General’s announcement, the Bipartisan Legal Advisory Group of the United States House of Representatives (BLAG), a five-member bipartisan leadership group, moved to intervene in this case in defense of Section 3.2 The district court granted the motion. J.A. 218; see Pet. App. 4a.
Both the government and BLAG moved to dismiss plaintiff’s challenge to the constitutionality of Section 3. While BLAG presented arguments in support of Section 3’s constitutionality, the government explained that it was filing a motion to dismiss plaintiff’s constitutional claim solely to ensure that the court had Article III jurisdiction to enter judgment for or against the United States. J.A. 437-439. The government’s brief on the merits set forth its view that heightened scrutiny applies to Section 3 and that, under that standard, Section 3 violates the equal protection guarantee of the Fifth Amendment. J.A. 486489.
4. The district court denied the motions to dismiss and granted summary judgment in favor of plaintiff, concluding that Section 3 of DOMA violates equal protection. Pet. App. 1a-22a. The court first rejected two threshold arguments advanced by BLAG: (1) the court concluded that New York law in 2009 (the relevant tax year) required recognition of same-sex marriages performed in other jurisdictions, thus ensuring Article III standing, id. at 6a-8a; and (2) the court held that this Court’s summary dismissal of the appeal
2 Two of the group’s five members declined to support intervention. J.A. 196 n.1.

7 in Baker v. Nelson, 409 U.S. 810 (1972), did not foreclose plaintiff ’s challenge because Section 3, unlike the statute at issue in Baker, “does not preclude or otherwise inhibit a state from authorizing same-sex marriage (or issuing marriage licenses),” Pet. App. 9a. Turning to the merits of plaintiff ’s challenge, the district court declined to decide whether heightened scrutiny or even “a more ‘searching’ form of rational basis scrutiny is required.” Id. at 13a-14a. The court instead held that neither the legislative purposes articulated in support of Section 3 at the time of its enactment nor additional interests offered by BLAG bear a rational relationship to a legitimate governmental objective. Id. at 13a-22a.
5. The court of appeals affirmed. Supp. App. 1a83a.
a. At the outset, the court of appeals rejected BLAG’s argument that the government is not an aggrieved party that can take an appeal. Supp. App. 4a5a. Relying on INS v. Chadha, 462 U.S. 919, 931 (1983), the court held that the government is aggrieved because “the United States continues to enforce Section 3” and Section 3’s constitutionality “will have a considerable impact on many operations of the United States.” Supp. App. 4a-5a.
b. The court of appeals then rejected BLAG’s threshold request that it should certify to the New York Court of Appeals the question, which BLAG characterized as implicating plaintiff ’s standing, whether New York in 2009 recognized same-sex marriages entered into in other jurisdictions. Supp. App. 5a-7a. Relying on the “useful and unanimous” rulings of New York’s intermediate appellate courts on that question, id. at 6a, the court of appeals agreed with

8 the district court and concluded that New York recognized such marriages at the relevant time, id. at 6a-7a.
c. The court of appeals also rejected BLAG’s argument that this Court’s summary dismissal of the appeal in Baker, supra, controls plaintiff ’s equal protection challenge. Supp. App. 7a-11a. After noting the limited precedential force of summary dismissals, the court of appeals explained that the “question whether the federal government may constitutionally define marriage as it does in Section 3 of DOMA is sufficiently distinct from the question in Baker: whether same-sex marriage may be constitutionally restricted by the states.” Id. at 8a. The court reasoned, moreover, that even if “Baker might have had resonance” when it was decided, “it does not today” because of the “manifold changes to the Supreme Court’s equal protection jurisprudence” since Baker. Id. at 9a.
d. Turning to the constitutionality of Section 3, the court of appeals noted that “the existence of a rational basis for Section 3 of DOMA is closely argued,” Supp. App. 12a, but concluded that it need not resolve that argument “if heightened scrutiny is available, as it is in this case,” id. at 14a. In considering the applicable level of scrutiny, the court first looked to whether the class has historically been subjected to discrimination. Id. at 16a-17a. The court found “[i]t is easy to conclude that homosexuals have suffered a history of discrimination.” Id. at 16a. “Perhaps the most telling proof of animus and discrimination,” the court determined, “is that, for many years and in many states, homosexual conduct was criminal.” Ibid. Noting that “BLAG concedes that homosexuals have endured discrimination in this country since at least the 1920s,”

9 the court concluded that “[n]inety years of discrimination is entirely sufficient.” Id. at 17a.
The court of appeals then assessed whether sexual orientation, the distinguishing class characteristic, typically bears on a person’s ability to contribute to society. Supp. App. 17a-18a. The court reasoned that, while “[t]here are some distinguishing characteristics, such as age or mental handicap, that may arguably inhibit an individual’s ability to contribute to society,” sexual orientation “is not one of them.” Id. at 18a. The court determined that sexual orientation “has nothing to do with aptitude or performance.” Ibid.
Next, the court of appeals examined the discernibility of sexual orientation, Supp. App. 19a-21a, explaining that “what matters here is whether the characteristic invites discrimination when it is manifest,” id. at 21a. The court rejected the characterization of this factor as one confined to “immutability,” finding that “the test is broader.” Id. at 19a-20a. Analogizing to classifications based on alienage, illegitimacy, and national origin, id. at 19a-21a, the court concluded that “sexual orientation is a sufficiently distinguishing characteristic to identify the discrete minority class of homosexuals,” id. at 21a.
Finally, the court evaluated the political power of gay and lesbian people. Supp. App. 21a-23a. The court acknowledged that “homosexuals have achieved political successes over the years.” Id. at 21a. But the relevant question, the court explained, “is whether they have the strength to politically protect themselves from wrongful discrimination.” Ibid. Pointing to “the seemingly small number of acknowledged homosexuals” in positions of power, among other evidence, id. at 22a, the court concluded that gay and

10 lesbian people cannot “adequately protect themselves from the discriminatory wishes of the majoritarian public,” id. at 23a.
Based “on the weight of the factors and on analogy to the classifications recognized as suspect and quasisuspect,” the court concluded that “the class is quasisuspect” and thus calls for the application of intermediate scrutiny. Supp. App. 23a.
e. The court of appeals then held that Section 3 of DOMA fails under intermediate scrutiny. Supp. App. 23a-31a. The court concluded that the purposes advanced by BLAG and Congress in support of Section 3 do not bear a substantial relationship to an important governmental objective, id. at 24a-30a, noting that “BLAG’s counsel all but conceded [at argument] that these reasons for enacting DOMA may not withstand intermediate scrutiny,” id. at 24a.
The court first determined that an asserted interest in “maintaining a consistent federal definition of marriage” cannot withstand intermediate scrutiny. Supp. App. 24a. The court explained that, among other problems, “DOMA’s sweep arguably creates more discord and anomaly than uniformity”; “[b]ecause DOMA defined only a single aspect of domestic relations law, it left standing all other inconsistencies in the laws of the states, such as minimum age, consanguinity, divorce, and paternity.” Id. at 25a.
Nor could the court of appeals discern a substantial relationship between Section 3 and the interest in “sav[ing] government resources.” Supp. App. 26a. “DOMA is so broad,” the court concluded, id. at 27a, that it “transcends a legislative intent to conserve public resources,” id. at 28a. And while “[f ]iscal prudence is undoubtedly an important government inter-

11 est,” id. at 27a, the court noted, the “saving of welfare costs cannot justify an otherwise invidious classification,” ibid. (quoting Graham v. Richardson, 403 U.S. 365, 375 (1971)).
Turning to the asserted interest in “preserving traditional marriage as an institution,” Supp. App. 28a, the court explained that the “ancient lineage of a legal concept does not give a law immunity from attack,” ibid. (quoting Heller v. Doe, 509 U.S. 312, 326 (1993) (brackets omitted)). The court concluded, moreover, that “[e]ven if preserving tradition were in itself an important goal, DOMA is not a means to achieve it”; “because the decision of whether same-sex couples can marry is left to the states, DOMA does not, strictly speaking, preserve the institution of marriage as one between a man and a woman.” Id. at 29a (citation and internal quotation marks omitted).
Finally, the court determined that Section 3 does not advance an interest in the “encouragement of responsible procreation and child-rearing,” id. at 30a, because “DOMA does not affect in any way” the incentives for opposite-sex couples to engage in such procreation and child-rearing, id. at 29a. “Incentives for opposite-sex couples to marry and procreate (or not),” the court concluded, “were the same after DOMA was enacted as they were before.” Id. at 30a.
f. Judge Straub dissented in part. While he concurred with the parts of the court’s opinion denying BLAG’s motion to dismiss the government’s appeal and declining to certify to the New York Court of Appeals the marriage-recognition issue, Supp. App. 31a, he would have held that Baker forecloses petitioner’s equal protection challenge, id. at 40a-48a. Even if Baker did not control, Judge Straub would

12
have upheld Section 3 applying rational-basis scrutiny. Id. at 48a-83a.
SUMMARY OF ARGUMENT
Section 3 of DOMA violates the fundamental constitutional guarantee of equal protection. The law denies to tens of thousands of same-sex couples who are legally married under state law an array of important federal benefits that are available to legally married opposite-sex couples. Because this discrimination cannot be justified as substantially furthering any important governmental interest, Section 3 is unconstitutional.
A. This Court has understandably reserved the application of heightened constitutional scrutiny to a small number of classifications. But the Court has yet to determine whether classifications based on sexual orientation qualify. Under the factors articulated by this Court, such classifications warrant heightened scrutiny.
First, gay and lesbian people have been subject to a significant history of discrimination in this country. Until Lawrence v. Texas, 539 U.S. 558 (2003), criminal laws in many states prohibited their private sexual conduct. In addition, gay and lesbian people have long suffered discrimination in employment, immigration, criminal violence, child custody, police enforcement, voter referenda, and other contexts.
Second, sexual orientation, unlike disability or age, generally bears no relation to ability to participate in and contribute to society. Rather than dispute that unassailable fact, BLAG seeks to avoid its force by inventing its own query untethered to this Court’s precedents (Br. 54): whether the classification turns on a characteristic “relevant to the distinctions actual-

13 ly drawn.” But that formulation would drain the constitutional inquiry of any real meaning by conflating the question whether a classification withstands heightened scrutiny in a particular case (the second step of the equal-protection analysis) with the antecedent question whether heightened scrutiny applies to that classification (the first step).
Third, discrimination against gay and lesbian people is based on an immutable or distinguishing characteristic. Sexual orientation is a core aspect of identity. Its expression, particularly in loving and committed relationships, is an “integral part of human freedom.” Lawrence, 539 U.S. at 577. There is broad scientific and medical consensus that sexual orientation is typically not a voluntary choice, and that efforts to change an individual’s sexual orientation are generally futile and potentially harmful. In any event, as long as it distinguishes a group, a characteristic may support application of heightened scrutiny even if—as with illegitimacy or alienage—it is subject to change or not readily visible.
Fourth, gay and lesbian people are a minority group with limited political power. Although some of the harshest and most overt forms of discrimination against gay and lesbian people have receded, that progress has hardly been uniform (either temporally or geographically), and has in significant respects been the result of judicial enforcement of the Constitution, not political action. E.g., Lawrence, supra. The vast majority of state voter initiatives directed at gay and lesbian people, even within the last decade, have repealed protections against sexual-orientation discrimination or denied gay and lesbian people the ability to marry. In any event, as confirmed by the

14 applicability of heightened scrutiny to classifications based on gender, the fact that gay and lesbian people have achieved some political gains does not tilt this factor against, let alone preclude, heightened scrutiny. See Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (plurality opinion).
B. Section 3 fails heightened scrutiny. None of Section 3’s actual purposes as expressed in the House Report, or any of the additional interests now asserted by BLAG, substantially furthers an important governmental objective.
Congress’s stated interest in asserting moral disapproval of homosexuality cannot justify Section 3. BLAG does not contend otherwise. As the Court has explained, “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.” Lawrence, 539 U.S. at 577 (citation omitted).
Congress’s asserted interest in defending the institution of “traditional, heterosexual” marriage (House Report 12) fails for similar reasons. E.g., United States v. Virginia, 518 U.S. 515, 535-536 (1996) (VMI). In any event, because Section 3 imposes no restriction on the ability of any state to provide for same-sex marriage, it does not substantially further any interest in preserving “traditional, heterosexual” marriage.
Nor can DOMA be justified based on the interest in promoting responsible parenting and child-rearing that BLAG identifies as the principal societal justification for recognizing marriage. Even apart from the expert consensus that children raised by gay and lesbian parents are as likely to be well adjusted as children raised by heterosexual parents, Section 3

15 does nothing to promote responsible opposite-sex parenting or to prevent irresponsible same-sex parenting. Denying federal benefits to married same-sex couples creates no additional incentive for heterosexual couples to marry, procreate, or raise children together; nor does it disturb any state-conferred parental rights for same-sex couples.
Congress’s interest in “protecting state sovereignty and democratic self-governance” (House Report 12, 18) applies to Section 2, not Section 3, of DOMA. BLAG invokes a parallel sovereign interest in enabling the federal government to formulate its own definition of marriage for its own purposes. That asserted interest, however, simply begs the question in this case: whether the exercise of federal authority is consistent with equal protection.
Section 3 also cannot be justified based on an interest in preserving government resources. Even assuming that Section 3 actually saves the government money (a dubious assertion), that would not suffice under heightened scrutiny. E.g., Plyler v. Doe, 457 U.S. 202, 227 (1982).
The related interests in national uniformity and administrability with respect to federal benefits eligibility are not “actual purposes” expressed either in DOMA itself or the accompanying House Report, and therefore cannot be considered for purposes of heightened scrutiny. VMI, 518 U.S. at 535-536. Those interests also fail because the federal government ordinarily has given effect to marriages lawfully recognized under state law despite a number of inconsistencies among state marriage laws. Section 3 breaks from that established practice in a way that creates administrative difficulties, i.e., requiring the

16
federal government to determine whether a valid state marriage involves individuals of the same sex.
Finally, the asserted interest in proceeding with caution pending state experimentation with the definition of marriage likewise lacks a basis in DOMA or the House Report. Section 3, at any rate, affects the institution of marriage, if at all, only “at the margin” (BLAG Br. 43). Section 3, moreover, is not framed as a temporary measure designed to facilitate further study.
C. If the Court declines to apply heightened scrutiny to Section 3 of DOMA, the government does not challenge the constitutionality of Section 3 under the highly deferential standard of rational-basis review. Insofar as the Court were to apply a “more searching form of rational basis review” (Lawrence, 539 U.S. at 580 (O’Connor, J., concurring in judgment)) because of the unique nature of the classification at issue, however, Section 3 would fail that analysis for largely the same reasons that it fails heightened scrutiny.
ARGUMENT SECTION 3 OF DOMA VIOLATES EQUAL PROTECTION
The Constitution’s guarantee of equal protection of the laws, applicable to the federal government through the Due Process Clause of the Fifth Amendment, see Bolling v. Sharpe, 347 U.S. 497, 500 (1954), embodies a defining constitutional ideal that “all persons similarly situated should be treated alike,” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). Section 3 of DOMA stands at odds with that fundamental principle: it allows states to define the category of “similarly situated” persons—those who are legally married under state law—but it then denies federal benefits to legally married same-sex cou-

17 ples that are available to legally married opposite-sex couples.
The present case vividly illustrates the character of this discrimination: Section 3 of DOMA required the federal government to deny plaintiff a $363,000 reduction in estate taxes solely because her marriage, although fully recognized as a matter of state law, was with another woman. The statute inflicts a vast array of similarly severe harms upon the tens of thousands of legally married same-sex couples in this country. A same-sex spouse of an active-duty military servicemember is excluded from certain housing, healthinsurance, and disability benefits that would be afforded to an opposite-sex spouse. A federal employee is denied leave under the Family and Medical Leave Act to care for a sick same-sex spouse, who is also ineligible for health-insurance coverage. A non-citizen same-sex spouse of a United States citizen cannot qualify as the citizen spouse’s immediate relative for purposes of obtaining lawful permanent residence, subjecting the non-citizen spouse to the possibility of removal (if in the United States) or continued separation (if abroad). A same-sex surviving spouse is denied certain Social Security and pension benefits that would be available to an opposite-sex spouse. And a same-sex spouse of a military veteran is ineligible to be buried alongside his or her spouse in a national cemetery (absent a discretionary designation of eligibility by the Secretary of Veterans Affairs), or to receive certain survivor benefits upon a veteran’s service-connected death. 38 U.S.C. 1310, 2402(a)(5) and (6); see also 38 U.S.C. 101(3) and (31) (defining “spouse” for Title 38 as a person of the opposite sex who is a wife or husband).

18
The question in this case is whether those results compelled by DOMA are consistent with equal protection. They are not.3
A. Classifications Based On Sexual Orientation Should Be Subject To Heightened Scrutiny
Legislation is generally presumed valid and sustained as long as the “classification drawn by the statute is rationally related to a legitimate state interest.” Cleburne, 473 U.S. at 440. When “individuals in the group affected by a law have distinguishing characteristics relevant to interests the [government] has the authority to implement,” courts will not “closely scrutinize legislative choices as to whether, how, and to what extent those interests should be pursued.” Id. at 441-442. But when legislation classifies on the basis of a factor that “generally provides no sensible ground
3 BLAG asserts in a footnote (Br. 24 n.6) that “[b]efore it can consider DOMA’s constitutionality, this Court must resolve a threshold issue of Article III standing,” in that plaintiff “only has standing to challenge DOMA * * * if New York would have recognized her 2007 Ontario marriage certificate” at the time of Thea Spyer’s death. As explained in our certiorari reply (at 3-4 & nn.1-2), however, both courts below concluded that New York recognized plaintiff ’s marriage at the relevant time (Supp. App. 5a-7a; id. at 31a (Straub, J., dissenting); Pet. App. 6a-8a)—a conclusion entitled to controlling deference by this Court. See, e.g., Bishop v. Wood, 426 U.S. 341, 346 (1976). Notably, BLAG makes no affirmative argument for disturbing the Second Circuit’s and district court’s common understanding of New York law, instead contending only that the issue is “not free from doubt.” In any event, because IRS’s denial of plaintiff ’s tax-refund claim was based solely on Section 3 of DOMA, without questioning the validity of her marriage under either Ontario or New York law (see p. 4, supra), BLAG’s objection in fact goes to the merits rather than to standing.

19 for differential treatment”—such as race or gender— equal protection imposes a greater burden on the government to justify the classification. Id. at 440441.
Such suspect or quasi-suspect classifications are subject to heightened scrutiny, under which the government must show, at a minimum, that the classification drawn is “substantially related to an important governmental objective.” Clark v. Jeter, 486 U.S. 456, 461 (1988). That more stringent standard enables courts to ascertain whether the government has employed the classification for a significant and proper purpose, and provides a heightened measure of protection in circumstances where there is a greater danger that the classification results from impermissible prejudice or stereotypes. See, e.g., City of Richmond v. J. A. Croson Co., 488 U.S. 469, 493 (1989) (plurality opinion); United States v. Virginia, 518 U.S. 515, 533 (1996) (VMI).
This Court has yet to resolve the appropriate level of scrutiny for classifications based on sexual orientation. In Romer v. Evans, 517 U.S. 620 (1996), the Court held that the state law at issue, which repealed existing—and prohibited future—legal protections for gay and lesbian people, failed “even” rational-basis review under the Equal Protection Clause. Id. at 632. In Lawrence v. Texas, 539 U.S. 558 (2003), the Court invalidated a state criminal ban on homosexual sodomy under the Due Process Clause of the Fourteenth Amendment because the law “furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.” Id. at 578. The Court accordingly had no need in either case to decide whether heightened scrutiny applies for pur-

20 poses of equal-protection review of sexual-orientation classifications. Nor did the Court decide the question in its one-line summary dismissal in Baker v. Nelson, 409 U.S. 810 (1972), of an appeal as of right from a state supreme court decision denying a same-sex couple the right to marry under state law. See Supp. App. 7a-11a. As BLAG acknowledges (Br. 25-26), the Court’s summary order unsurprisingly gives no indication that it considered, much less resolved, the applicable level of scrutiny.
The Court has, however, established a set of factors that guide the determination of whether to apply heightened scrutiny to a classification that singles out a particular group: (1) whether the class in question has suffered a history of discrimination, e.g., Bowen v. Gilliard, 483 U.S. 587, 602 (1987); (2) whether the characteristic prompting the discrimination “frequently bears no relation to ability to perform or contribute to society,” Cleburne, 473 U.S. at 440-441 (quoting Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (plurality opinion)); (3) whether the discrimination against members of the class is based on “obvious, immutable, or distinguishing characteristics that define them as a discrete group,” Gilliard, 483 U.S. at 602 (citation omitted); and (4) whether the class is “a minority or politically powerless,” ibid.
The first two considerations—a history of discrimination and the distinguishing characteristic’s lack of relation to an individual’s capabilities—are at the core of the inquiry and are common to every class this Court has deemed suspect. That is fully understandable: those factors provide direct and powerful reasons to be suspicious of a classification. Though relevant, neither immutability nor political powerlessness is a

21 precondition or sufficient to warrant heightened scrutiny. See, e.g., Cleburne, 473 U.S. at 443 n.10 (“ [T]here’s not much left of the immutability theory, is there? ”) (quoting John Hart Ely, Democracy and Distrust 150 (1980)); id. at 472 n.24 (Marshall, J., concurring in part and dissenting in part) (“The ‘political powerlessness’ of a group may be relevant, but that factor is neither necessary, as the gender cases demonstrate, nor sufficient, as the example of minors illustrates.”). At any rate, as the court of appeals correctly determined (Supp. App. 16a-23a), all four of the factors demonstrate that classifications based on sexual orientation should be subject to heightened scrutiny.4
4 The decisions of other courts of appeals concluding that rational-basis review applies to sexual-orientation classifications are flawed. Many of those courts relied in whole or in part on Bowers v. Hardwick, 478 U.S. 186 (1986), which this Court overruled in 2003. Lawrence, 539 U.S. at 578. They reasoned that “[i]f homosexual conduct may constitutionally be criminalized,” as Bowers held, “then homosexuals do not constitute a suspect or quasi-suspect class entitled to greater than rational basis scrutiny for equal protection purposes.” Ben-Shalom v. Marsh, 881 F.2d 454, 464 (7th Cir. 1989), cert. denied, 494 U.S. 1004 (1990); see Equality Found. v. City of Cincinnati, 54 F.3d 261, 266-267 & n.2 (6th Cir. 1995), vacated by, 518 U.S. 1001 (1996); Steffan v. Perry, 41 F.3d 677, 685 (D.C. Cir. 1994) (en banc); High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563, 571 (9th Cir. 1990); Woodward v. United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989), cert. denied, 494 U.S. 1003 (1990); see also Richenberg v. Perry, 97 F.3d 256, 260 (8th Cir. 1996) (citing reasoning of prior appellate decisions based on Bowers), cert. denied, 522 U.S. 807 (1997); Thomasson v. Perry, 80 F.3d 915, 928 (4th Cir.) (same), cert. denied, 519 U.S. 948 (1996).

22
1. Gay and lesbian people have been subject to a history of discrimination
Gay and lesbian people have suffered a significant history of discrimination in this country. No court to consider the question has concluded otherwise, and any other conclusion would be insupportable. Supp. App. 16a; see, e.g., Massachusetts v. United States Dep’t of Health & Human Servs., 682 F.3d 1, 11 (1st Cir. 2012) (“[G]ays and lesbians have long been the subject of discrimination.”), petitions for cert. pending, Nos. 12-13 (filed June 29, 2012), 12-15 (filed July 3, 2012), and 12-97 (filed July 20, 2012); High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563, 573 (9th Cir. 1990) (“[W]e do agree that homosexuals have suffered a history of discrimination.”); Ben-Shalom v. Marsh, 881 F.2d 454, 465 (7th Cir. 1989) (“Homosexuals have suffered a history of discrimination and still do, though possibly now in less degree.”), cert. denied, 494 U.S. 1004 (1990).
Perhaps most stark is the history of criminal prohibitions on the sexual intimacy of gay and lesbian people: that history ranges from colonial laws ordering the death of “any man [that] shall lie with mankind, as he lieth with womankind,” Public Statute Laws of the State of Connecticut, 1808 tit. LXVI, ch. 1, § 2, 294-295 & n.1 (enacted 1642; rev. 1750), to state laws that, until very recently, “demean[ed] the[] existence” of gay and lesbian people “by making their private sexual conduct a crime,” Lawrence, 539 U.S. at 578. “[T]hat declaration in and of itself [wa]s an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.” Id. at 575. The federal government, state and local governments, and private parties all have contributed to a

23
regrettable history of discrimination against gay and lesbian people in a variety of contexts:
 Employment: By the 1950s, based on Presidential and other directives, the federal government investigated its civilian employees for “sexual perversion,” i.e., homosexuality. Until 1975, “[t]he regulations of the Civil Service Commission for many years ha[d] provided that * * * immoral or notoriously disgraceful conduct, which includes homosexuality or other types of sex perversion, are sufficient grounds for denying appointment to a Government position or for the removal of a person from the Federal service.” Employment of Homosexuals and Other Sex Perverts in Government, Interim Report submitted to the Committee by its Subcommittee on Investigations pursuant to S. Res. 280, S. Doc. No. 241, 81st Cong., 2d Sess. 8 (1950). Intrusive investigations by the FBI and other agencies forced thousands of federal employees out of their jobs based on the suspicion that they were gay or lesbian. See, e.g., id. at 6-8; Brad Sears et al., The Williams Institute, Documenting Discrimination on the Basis of Sexual Orientation and Gender Identity in State Employment, ch. 5 at 7, Sept. 2009, http://williamsinstitute.law.ucla.edu/ research/workplace/documenting-discriminationon-the-basis-of-sexual-orientation-and-genderidentity-in-state-employment. The same was true on the state and local government level, id. at 18-

24 34, and pervasive employment discrimination persists to this day in the private sector, id. at 8-9.5  Immigration: For decades, gay and lesbian noncitizens were categorically subject to exclusion from the United States on the ground that they were “persons of constitutional psychopathic inferiority,” “mentally . . . defective,” or sexually deviant. Lesbian/Gay Freedom Day Comm., Inc. v. INS, 541 F. Supp. 569, 571-572 (N.D. Cal. 1982) (quoting Act of Feb. 5, 1917, ch. 29, § 3, 39 Stat. 875), see Boutilier v. INS, 387 U.S. 118, 120 (1967) (“The legislative history of the [Immigration and Nationality] Act indicates beyond a shadow of a doubt that the Congress intended the phrase ‘psychopathic personality’ to include homosexuals.”). That exclusion remained in effect until June 1, 1991. Immigration Act of 1990, Pub. L. No. 101649, 104 Stat. 4978.  Hate crimes: After racial minorities, gay and lesbian people are the most frequent victims of reported hate crimes. See FBI, Hate Crime Statistics 2011, http://www.fbi.gov/about-us/cjis/ucr/hatecrime/2011/tables/table-1 (hate crimes motivated by victim’s sexual orientation constituted second highest category reported with 1508 offenses or over 20% of total). From 2007 to 2011 (the latest year for which data has been reported), hate crimes motivated by sexual orientation increased 3%, even as hate crimes overall decreased 19%. Compare ibid.
5 Until September 2011, open military service by gay and lesbian people was prohibited first by regulation and then by statute, 10 U.S.C. 654.

25
with FBI, Hate Crime Statistics, 2007, http:// www2.fbi.gov/ucr/hc2007/table_01.htm.  Child custody: States and localities have denied child custody and visitation rights to gay and lesbian parents based on their intimate relationships. See, e.g., Ex parte H.H., 830 So. 2d 21, 26 (Ala. 2002) (Moore, C.J., concurring) (concurring in denial of custody to lesbian mother on ground that “[h]omosexual conduct is * * * abhorrent, immoral, detestable, a crime against nature, and a violation of the laws of nature and of nature’s God * * * [and] an inherent evil against which children must be protected”); Bowen v. Bowen, 688 So. 2d 1374, 1381 (Miss. 1997) (holding that trial court did not err in granting father custody based on public rumor that son’s mother was involved in lesbian relationship); Bottoms v. Bottoms, 457 S.E.2d 102, 108 (Va. 1995) (noting that while “a lesbian mother is not per se an unfit parent,” “[c]onduct inherent in lesbianism is punishable as a Class 6 felony in the Commonwealth” and “that conduct is another important consideration in determining custody”).  Police enforcement: Liquor licensing laws were used to raid establishments patronized by gay and lesbian people long before the Stonewall riots of 1969. See William N. Eskridge, Jr., Privacy Jurisprudence and the Apartheid of the Closet, 19461961, 24 Fla. St. U. L. Rev. 703, 761-766 (1997). Police similarly relied on laws prohibiting lewdness, vagrancy, and disorderly conduct to harass gay and lesbian people when congregating in public. See, e.g., Pryor v. Municipal Court, 599 P.2d 636, 644 (Cal. 1979); Steven A. Rosen, Police Harassment of Homosexual Women and Men in New York City,

26
1960-1980, 12 Colum. Hum. Rts. L. Rev. 159, 162164 (1980); Florida State Legislative Investigation Committee, Report: Homosexuality and Citizenship in Florida 14 (1964).  Voter referenda: Efforts to combat discrimination have engendered significant political backlash, as evidenced by a series of successful state and local ballot initiatives, starting in the 1970s, repealing anti-discrimination protections for gay and lesbian people. See Robert Wintemute, Sexual Orientation and Human Rights 56 (1995) (“From 1974 to 1993, at least 21 referendums were held on the sole question of whether an existing law or executive order prohibiting sexual orientation discrimination should be repealed or retained. In 15 of these 21 cases, a majority voted to repeal the law or executive order.”). The voter initiatives at issue in Romer, supra, and Equality Foundation v. City of Cincinnati, 54 F.3d 261 (6th Cir. 1995), vacated by, 518 U.S. 1001 (1996), are two of a number of more recent examples. See also pp. 33-34, infra (discussing success of state ballot measures prohibiting marriage of same-sex couples). BLAG offers two responses to that welldocumented history of discrimination. First, BLAG observes (Br. 57) that gay and lesbian people, unlike certain other protected classes, have never been denied the right to vote. But this Court has never enumerated political disenfranchisement as a separate factor, let alone a requirement, for according heightened scrutiny, and it would make little sense to do so. Citizens born out of wedlock, for instance, have never been denied the right to vote, but the Court has treat-

27
ed them as a quasi-suspect class for equal-protection purposes. See Lalli v. Lalli, 439 U.S. 259, 265 (1978).
Second, BLAG contends (Br. 57) that, unlike other protected classes, gay and lesbian people have not suffered discrimination “for longer than history has been recorded.” Of course, that is not the relevant inquiry; as the court of appeals noted (Supp. App. 17a), “whether such discrimination existed in Babylon is neither here nor there.” In any case, in addition to the colonial-era criminal prohibitions on homosexual conduct, BLAG concedes that gay and lesbian people have endured discrimination in this country since the 1920s. Any perceived shortage of evidence of overt or officially sanctioned discrimination before that time is likely attributable to the fact that gay and lesbian people, by and large, kept their sexual orientation hidden for fear of discrimination or persecution. In any event, given its breadth and depth, the undisputed twentieth-century discrimination has lasted long enough.
2. Sexual orientation bears no relation to ability to perform or contribute to society
A pivotal consideration distinguishing classifications that call for application of heightened scrutiny from classifications that do not is whether the characteristic in question generally bears on an “individual’s ability to participate in and contribute to society.” Cleburne, 473 U.S. at 441 (quoting Mathews v. Lucas, 427 U.S. 495, 505 (1976)). When the characteristic is ordinarily one that “the government may legitimately take into account,” id. at 446, this Court declines to apply heightened scrutiny even if other factors would support its application. See id. at 442-447 (mental

28 disability); Massachusetts Bd. of Ret. v. Murgia, 427 U.S. 307, 312-315 (1976) (per curiam) (age). Conversely, “what differentiates sex from such nonsuspect statuses as intelligence or physical disability, and aligns it with the recognized suspect criteria, is that the sex characteristic frequently bears no relation to ability to perform or contribute to society.” Frontiero, 411 U.S. at 686 (plurality opinion).
The same is true of sexual orientation. Historically, discrimination against gay and lesbian people had nothing to do with ability or performance, but rested instead on the view that they are, for example, sexual deviants, mentally ill, or immoral. See pp. 22-27, supra. As the American Psychiatric Association concluded some forty years ago, however, “homosexuality per se implies no impairment in judgment, stability, reliability, or general social or vocational capabilities.” American Psychiatric Ass’n, Position Statement on Homosexuality and Civil Rights (1973), reprinted in 131 Am. J. Psychiatry 497 (1974). Like gender, race, or religion, sexual orientation bears no inherent relation to a person’s ability to participate in or contribute to society.
That fact is evident throughout all aspects of society, including military service. “[V]alor and sacrifice are no more limited by sexual orientation than they are by race or by gender or by religion or by creed,” and gay and lesbian Americans have served with honor “to protect this nation and the ideals for which it stands.” Remarks by the President and Vice President at Signing of the Don’t Ask, Don’t Tell Repeal Act of 2010, Dec. 22, 2010, http://www.whitehouse.gov/ the-press-office/2010/12/22/remarks-president-andvice-president-signing-dont-ask-dont-tell-repeal-a.

29
Gay and lesbian people have made similar contributions beyond the military, even when they could not live openly with regard to their sexual orientation. Plaintiff ’s own pathbreaking career as a computer programmer, while she kept her long-term relationship with Spyer “invisible,” is but one example. J.A. 154, 156-157 (Am. Comp. ¶¶ 19, 27).
BLAG cannot dispute any of this. Instead, BLAG would prefer to transform the inquiry into a markedly different, case-specific one (Br. 54): whether the classification turns on a characteristic “relevant to the distinctions actually drawn,” i.e., “whether a married couple is of the opposite sex is relevant to the government’s interests in recognizing marriage.” This Court has never framed the inquiry in that way, and for good reason. As the court of appeals explained, this Court’s decisions make clear that the relevance of the classification to the “distinctions actually drawn” by a particular law “bear[s] upon whether the law withstands scrutiny (the second step of analysis) rather than upon the level of scrutiny to apply” in the first place. Supp. App. 18a (citing Clark, 486 U.S. at 461). When the inquiry is properly framed, the answer is clear. Sexual orientation—like gender— “frequently bears no relation to ability to perform or contribute to society.” Frontiero, 411 U.S. at 686 (plurality opinion).
3. Gay and lesbian people possess a distinguishing characteristic that defines them as a group
Sexual orientation is a sufficiently discernible characteristic to define a discrete minority group. BLAG (Br. 54-56) and its amici contend that sexual orientation is not necessarily fixed, suggesting that it may

30 change over time and vary along a spectrum. That contention is both irrelevant and incorrect.
a. As the Court’s precedents indicate, this factor is broader than “immutability” or “obviousness”; it asks whether there are “obvious, immutable, or distinguishing characteristics that define * * * a discrete group.” Gilliard, 483 U.S. at 602 (emphasis added; citation omitted); Lyng v. Castillo, 477 U.S. 635, 638 (1986). A classification may be constitutionally suspect even if it rests on a characteristic, such as illegitimacy or alienage, that is not readily visible or is subject to change. See Mathews, 427 U.S. at 504, 506 (“[I]llegitimacy does not carry an obvious badge, as race or sex do.”); Graham v. Richardson, 403 U.S. 365, 372 (1971) (alienage). As the court of appeals explained (Supp. App. 19a-20a), the salient question “is whether the characteristic of the class calls down discrimination when it is manifest.”
Sexual orientation is such a “distinguishing characteristic,” and that is true even though so many gay and lesbian people have been forced for so long to hide their identities in order to avoid discrimination. As this Court has recognized, sexual orientation is a core aspect of human identity, and its expression is an “integral part of human freedom.” Lawrence, 539 U.S. at 562, 576-577; see also Hernandez-Montiel v. INS, 225 F.3d 1084, 1093 (9th Cir. 2000) (Sexual orientation is “fundamental to one’s identity” and gay and lesbian individuals “should not be required to abandon” it.).
BLAG also contends (Br. 55) that sexual orientation differs from other suspect or quasi-suspect classes because it is defined “by a propensity to engage in a certain kind of conduct.” This Court has squarely

31
rejected such a status/conduct distinction. See Lawrence, 539 U.S. at 575 (“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.”); 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, [the] law is targeted at more than conduct. It is instead directed toward gay persons as a class.”); Christian Legal Soc’y v. Martinez, 130 S. Ct. 2971, 2990 (2010) (rejecting contention that the organization “does not exclude individuals because of sexual orientation, but rather ‘on the basis of a conjunction of conduct and the belief that the conduct is not wrong’ ” because the Court’s “decisions have declined to distinguish between status and conduct in this context”); cf. Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 270 (1993) (“A tax on wearing yarmulkes is a tax on Jews.”).
b. In any event, the broad consensus in the scientific community is that, for the vast majority of people (gay and straight alike), sexual orientation is not a voluntary choice.6 There is likewise a medical consen-
6 See, e.g., Gregory M. Herek et al., Demographic, Psychological, and Social Characteristics of Self-Identified Lesbian, Gay, and Bisexual Adults in a US Probability Sample, 7 Sexuality Res. & Soc. Pol’y 176, 186-188 (2010), http://www.springerlink.com/ content/k186244647272924/fulltext.pdf (in national survey of more than 650 self-identified lesbian, gay, and bisexual adults, 95% of gay men and 83% of lesbian women reported “no choice at all” or “a small amount of choice” when asked “How much choice do you feel you had about [your self-described sexual orientation]?”); Am. Psychological Ass’n et al. (APA) C.A. Amicus Br. 6-8 (“Homosexuality is a normal expression of human sexuality, is generally not

32
sus that efforts to change an individual’s sexual orientation are generally futile and potentially dangerous to an individual’s well-being.7 Accordingly, sexual orientation readily constitutes an “obvious, immutable, or distinguishing characteristic” for purposes of equal-protection law.
4. Gay and lesbian people are minorities with limited political power
The final consideration is whether gay and lesbian people are “a minority or politically powerless.” Giliard, 483 U.S. at 602 (quoting Lyng, 477 U.S. at 638). They are both. It is undisputed that gay and lesbian
chosen, and is highly resistant to change.”); see also HernandezMontiel, 225 F.3d at 1093 (“Sexual orientation and sexual identity are immutable.”); Watkins v. United States Army, 847 F.2d 1329, 1347-1348 (9th Cir. 1988) (“Scientific proof aside, it seems appropriate to ask whether heterosexuals feel capable of changing their sexual orientation.”), rev’d en banc, 875 F.3d 699 (9th Cir. 1989).
7 See, e.g., 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.”); see also Richard A. Posner, Sex and Reason 101 n.35 (1992) (describing “failure of treatment strategies * * * to alter homosexual orientation”); Douglas C. Haldeman, The Practice and Ethics of Sexual Orientation Conversion Therapy, 62 J. Consulting & Clinical Psychol. 221, 226 (1994) (describing “lack of empirical support for conversion therapy”).
Every major mental health organization has adopted a policy statement cautioning against the use of so-called “conversion” or “reparative” therapies to change the sexual orientation of gay and lesbian people. Those policy statements are reproduced in a 2008 publication of the American Psychological Association, Just the Facts about Sexual Orientation and Youth, http://www.apa.org/pi/ lgbt/resources/just-the-facts.pdf.

33 people are a minority group, and, for much of the history of discrimination against them (see pp. 22-27, supra), they lacked any ability to protect themselves through the political process. To be sure, that has begun to change. But in critical respects that change has resulted from judicial enforcement of constitutional guarantees, e.g., Lawrence, supra, not political action. And efforts to combat discrimination against gay and lesbian individuals frequently have sparked successful voter referenda or legislative action scaling back protections. See p. 26, supra (noting numerous examples including referendum at issue in Romer). As one recent example, in May 2011, the Tennessee legislature repealed local ordinances prohibiting discrimination on the basis of sexual orientation and barred future enactment of such ordinances. Tenn. House Bill No. 600, Pub. Ch. No. 278, http://state.tn. us/sos/acts/107/pub/pc0278.pdf.
The recent history of marriage initiatives confirms that gay and lesbian people continue to lack any consistent or widespread “ability to attract the [favorable] attention of the lawmakers.” Cleburne, 473 U.S. at 445. BLAG notes (Br. 52) that voters in three states (Maine, Maryland, and Washington) approved same-sex marriage this past November—something that had never happened before at the ballot box. Focusing on this extremely recent progress, BLAG ignores the broader context, which overwhelmingly demonstrates the political challenges faced by the gay and lesbian minority. In 1996, at the time DOMA was enacted, only three states had laws expressly restricting marriage to opposite-sex couples. See Andrew Koppelman, The Difference the Mini-DOMAs Make, 38 Loy. U. Chi. L.J. 265, 265-266 (2007). Today, 39

34
states have such laws, including voter-approved constitutional amendments in 30 states barring same-sex marriage.8 Only six states, by comparison, have conferred marriage rights to same-sex couples through the political process; the other three have through judicial decision.9 That is not a convincing record of political power rendering protection unnecessary.10
In any event, BLAG can find no justification in this Court’s precedents for its assertion (Br. 54) that “the
8 Two other states (New Mexico and Rhode Island) have no express constitutional or statutory ban on marriage for same-sex couples, but those state governments do not permit same-sex couples to marry there. Both states, as a matter of comity, do recognize validly entered out-of-state marriages of same-sex couples.
9 Connecticut (judicial decision), Iowa (judicial decision), Maine (ballot), Maryland (legislature, approved by ballot), Massachusetts (judicial decision), New Hampshire (legislature), New York (legislature), Vermont (legislature), and Washington (legislature, approved by ballot).
10 By way of example, in May 2008, the California Supreme Court held that the state was constitutionally required to recognize same-sex marriage. In re Marriage Cases, 183 P.3d 384, 419-420 (Cal. 2008). In November 2008, California’s voters passed Proposition 8, which amended the state constitution to restrict marriage to opposite-sex couples. (The constitutionality of Proposition 8 is now before this Court. Hollingsworth v. Perry, No. 12-144 (cert. granted Dec. 7, 2012).) In November 2010, Iowa voters recalled all three Iowa state supreme court justices up for reelection after that court’s unanimous decision legalizing samesex marriage. A.G. Sulzberger, Ouster of Iowa Judges Sends Signal to Bench, N.Y. Times, Nov. 4, 2010, at A1. On May 8, 2012, North Carolina became the thirtieth state to amend its constitution to prohibit same-sex marriages. National Conference of State Legislatures, State Same-Sex Marriage Laws: Legislatures and Courts, http://www.ncsl.org/issues-research/human-services/samesex-marriage-laws.aspx (last updated Feb. 14, 2013).

35 political strength of gays and lesbians in the political process should be outcome determinative here.” When the Court recognized in 1973 that gender-based classifications were subject to heightened scrutiny, Frontiero, 411 U.S. 682-688 (plurality opinion), women already had achieved major political victories, including a constitutional amendment granting them the right to vote and protection against employment discrimination under Title VII.11 See id. at 685-686 (plurality opinion) (“It is true, of course, that the position of women in America has improved markedly in recent decades,” but “women still face pervasive, although at times more subtle, discrimination in our educational institutions, in the job market and, perhaps most conspicuously, in the political arena.”).
As Frontiero and the subsequent cases applying heightened scrutiny to gender-based classifications demonstrate, any limited measure of political progress achieved by gay and lesbian people in no way compels declining to apply heightened scrutiny. To the contrary, their status as a minority, and one with a relative lack of political power, reinforces the applicability of heightened scrutiny based on all of the relevant considerations.
* * * * * This Court understandably has been reluctant to recognize new suspect (or quasi-suspect) classes. See Cleburne, 473 U.S. at 441-442, 445-446. The govern-
11 Notably, Congress has enacted no similar laws to protect gay and lesbian people from employment discrimination, and most states provide no such protection either. See Teresa Welsh, Should Employers Be Able to Fire Someone for Being Gay?, U.S. News, May 14, 2012, http://www.usnews.com/opinion/articles/2012/ 05/14/should-employers-be-able-to-fire-someone-for-being-gay.

36
ment has not lightly concluded that the Court’s decisions dictate that heightened scrutiny applies to classifications based on sexual orientation. This is the rare circumstance in which a faithful application of the Court’s established criteria compels applying heightened scrutiny to an additional classification. While those criteria have appropriately and reliably proved, and will continue to prove, difficult to satisfy, none of the Court’s reasons for rejecting heightened scrutiny for other classifications—e.g., age,12 mental disability,13 kinship,14 and poverty15—applies to sexual orientation. Rather, sexual orientation falls squarely in the limited category of classifications for which heightened scrutiny is designed.
B. Section 3 Of DOMA Fails Heightened Scrutiny
Because a classification based on sexual orientation calls for the application of heightened scrutiny, BLAG must establish that DOMA Section 3, at a minimum, is
12 Murgia, 427 U.S. at 313 (rejecting heightened review for classifications based on age because such persons “have not experienced a history of purposeful unequal treatment or been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities”) (internal quotation marks omitted).
13 Cleburne, 473 U.S. at 442-443 (rejecting heightened review for mentally disabled persons because they have “a reduced ability to cope with and function in the everyday world” and “[h]ow this large and diversified group is to be treated under the law is a difficult and often a technical matter”).
14 Lyng, 477 U.S. at 638 (rejecting heightened review for kinship classification because it meets none of the four factors).
15 San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28 (1973) (rejecting heightened review for classifications based on poverty because such a class would be too “large, diverse, and amorphous”).

37
“substantially related to an important governmental objective.” Clark, 486 U.S. at 461.16 And under heightened scrutiny, a statute must be defended by reference to the “actual [governmental] purposes” behind it, not different “rationalizations.” VMI, 518 U.S. at 535-536. A classification does not withstand heightened scrutiny when “the alleged objective” of the classification differs from the “actual purpose.” Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 730 (1982).
The House Report—the only congressional committee report on DOMA—sets forth the specific governmental interests purportedly advanced by DOMA:
(1) defending and nurturing the institution of traditional, heterosexual marriage; (2) defending traditional notions of morality; (3) protecting state sovereignty and democratic self-governance; and (4) preserving scarce government resources. House Report 12. Other than a cursory footnote (Br. 57 n.10), BLAG makes no argument that any of those interests, or any of the other interests BLAG now asserts, could satisfy heightened scrutiny. See Supp.
16 BLAG states in passing, in a footnote (Br. 25 n.7), that “[b]y its terms, DOMA does not classify based on a married couple’s sexual orientation.” Whether or not DOMA “by its terms” classifies on the basis of sexual orientation, it is plainly a law that classifies based on sexual orientation. Congress left no doubt that the sole and overriding purpose of Section 3 was to exclude “homosexual couples” from the federal definition of marriage. House Report 2. Section 3 denies recognition of a class of marriage into which, as a practical matter, only gay and lesbian people enter. As discussed above, the Court has rejected such distinctions between the status and conduct of gay and lesbian people. See pp. 30-31, supra (citing Lawrence, Christian Legal Society, and Bray).

38
App. 24a (“BLAG’s counsel all but conceded that these reasons for enacting DOMA may not withstand intermediate scrutiny.”) (citing C.A. Oral Arg. Tr. 16:2417:6; reproduced at Pl. Resp. in Supp. of Writ of Cert. Before J. App. a16). The following analysis of the proffered justifications for Section 3 demonstrates why any such argument would fail.
1. Morality
The House Report claims that DOMA upholds “traditional notions of morality,” but does so by condemning homosexuality and expressing disapproval of the intimate, loving and committed relationships of gay and lesbian people. E.g., House Report 15-16 (relying on “moral disapproval of homosexuality” and “a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality”); id. at 16 (referring to “a union that many people . . . think is immoral”) (citation omitted); see also id. at 16 n.54, 33 (invoking holding of Bowers v. Hardwick, 478 U.S. 186, 196 (1986), that criminal prohibition served the purpose of expressing “the presumed belief * * * that homosexual sodomy is immoral and unacceptable”). The House Report also invokes an interest in extending legal preferences to heterosexual couples to “promot[e] heterosexuality” and discourage homosexuality. Id. at 15 n.53 (“Closely related to this interest in protecting traditional marriage is a corresponding interest in promoting heterosexuality.”).
BLAG makes no effort to defend Section 3 on the basis of this asserted interest, and for good reason. Moral opposition to homosexuality, though it may reflect deeply held personal views, is not a legitimate policy objective that can justify unequal treatment of

39
gay and lesbian people. See Lawrence, 539 U.S. at 577 (“[T]he fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.”) (quoting Bowers, 478 U.S. at 216 (Stevens, J., dissenting)); id. at 582-583 (O’Connor, J., concurring in judgment) (“Moral disapproval of [gay and lesbian people], like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause.”); see also Romer, 517 U.S. at 635 (noting that law cannot disfavor gay and lesbian people because of “personal or religious objections to homosexuality”).
That is not to suggest that Section 3 of DOMA necessarily or universally resulted from hostile animus. ‘‘Prejudice, we are beginning to understand, rises not from malice or hostile animus alone. It may result as well from insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different in some respects from ourselves.” Board of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 374 (2001) (Kennedy, J., concurring). Disapproval may also be the product of longstanding traditions or sincerely held beliefs. Cf. Massachusetts, 682 F.3d at 16 (“[M]any of our own traditions rest largely on belief and familiarity.”). Still, while ‘‘[p]rivate biases may be outside the reach of the law, * * * the law cannot, directly or indirectly, give them effect.’’ Palmore v. Sidoti, 466 U.S. 429, 433 (1984).
2. Traditional Definition of Marriage
The House Report also articulated an interest in “defending and nurturing the institution of traditional, heterosexual marriage.” House Report 12-15; see also

40 BLAG Br. 43. Marriage is, of course, a vitally important institution, and one supported by the federal government through benefits and other programs that rely on marital status. An interest in preserving marriage as limited to heterosexual persons, however, does not justify Section 3.
Tradition, no matter how long established, cannot by itself justify a discriminatory law under equal protection principles. See VMI, 518 U.S. at 535-536 (invalidating longstanding tradition of single-sex education at Virginia Military Institute); see also Lawrence, 539 U.S. at 577-578 (“[N]either history nor tradition could save a law prohibiting miscegenation from constitutional attack.”) (quoting Bowers, 478 U.S. at 216 (Stevens, J., dissenting)); Heller v. Doe, 509 U.S. 312, 326 (1993) (“Ancient lineage of a legal concept does not give [a law] immunity from attack for lacking a rational basis.”).
In any event, Section 3 of DOMA cannot plausibly be thought to advance any interest in protecting “traditional” marriage limited to opposite-sex couples. States decide what marriages to recognize without any reference to DOMA. As the court of appeals reasoned, “because the decision of whether same-sex couples can marry is left to the states, DOMA does not, strictly speaking, ‘preserve’ the institution of marriage as one between a man and a woman.” Supp. App. 29a (citation omitted). Instead, Section 3 denies benefits to individuals, legally married under state law, on the basis of their sexual orientation. As a result, “[t]his is not merely a matter of poor fit of remedy to perceived problem, but a lack of any demonstrated connection between DOMA’s treatment of same-sex couples and its asserted goal of strengthen-

41
ing the bonds and benefits to society of heterosexual marriage.” Massachusetts, 682 F.3d at 15 (citation omitted).
Even BLAG acknowledges (Br. 43) that “the federal government does not have the same direct effect on the institution of marriage as the sovereigns that directly issue marriage certificates,” and that any effect of a federal definition of marriage on the institution is only “at the margin.” Any such effects (if they exist at all) are so attenuated that they cannot be said to “substantially further” the interest in preserving tradition.
3. Procreation and child-rearing
The House Report identified “responsible procreation and child-rearing” not as a separate rationale for Section 3 of DOMA, but as a basis for Congress’s general interest in defending “the institution of traditional, heterosexual marriage.” E.g., House Report 14 (“Were it not for the possibility of begetting children inherent in heterosexual unions, society would have no particular interest in encouraging citizens to come together in a committed relationship.”); see also BLAG Br. 44-49. Even accepting this blinkered understanding of the moral and emotional foundations of marriage, see Turner v. Safley, 482 U.S. 78, 95-96 (1987), Section 3 does not substantially further any such interest.
First, no sound basis exists for concluding that same-sex couples who have committed to marriage are anything other than fully capable of responsible parenting and child-rearing. To the contrary, many leading medical, psychological, and social-welfare organizations have issued policy statements opposing restrictions on gay and lesbian parenting based on their

42 conclusions, supported by numerous scientific studies,17 that children raised by gay and lesbian parents are as well adjusted as children raised by heterosexual parents.18 Against this weight of expert authority, BLAG offers (Br. 48) only what it calls the “[c]ommon sense” notion that children benefit more from opposite-sex parents than from same-sex parents. That is (at best) uninformed speculation, and cannot satisfy heightened scrutiny. Consequently, even assuming Section 3 had the effect of encouraging opposite-sex parenting at the expense of same-sex parenting (but

17 The weight of the scientific literature strongly supports the

view that same-sex parents are just as capable as opposite-sex

parents. See, e.g., Timothy J. Biblarz & Judith Stacey, How Does

the Gender of Parents Matter?, 72 J. Marriage & Family 3 (2010),

http://www.squareonemd.com/pdf/Does%20the%20Gender%20of%

20Parents%20Matter%202010.pdf; see also APA C.A. Amicus Br.

5-6, 15-23 (concluding, based on a rigorous review of the literature,

that “there is no scientific basis for concluding that gay and lesbian

parents are any less fit or capable than heterosexual parents, or

that their children are any less psychologically healthy and well

adjusted”).

18 See, e.g., Am. Acad. of Pediatrics, Coparent or Second-Parent

Adoption by Same-Sex Parents, Feb. 2002, http://aappolicy.

aappublications.org/cgi/content/full/pediatrics;109/2/339;

Am.

Psychological Ass’n, Sexual Orientation, Parents, & Children,

July 2004, http://www.apa.org/about/governance/council/policy/

parenting.aspx; Am. Acad. of Child & Adolescent Psychiatry, Gay,

Lesbian, Bisexual, or Transgender Parents Policy Statement,

2009, http://www.aacap.org/cs/root/policy_statements/gay_lesbian_

transgender_and_bisexual_parents_policy_statement; Am. Med.

Ass’n, AMA Policies on GLBT Issues, 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 State-

ment on Parenting of Children by Lesbian, Gay, and Bisexual

Adults, http://www.cwla.org/programs/culture/glbtqposition.htm.

43 see pp. 43-44, infra), there would be no adequate interest in doing so.
Second, any debate over the relative merits of same-sex parenting is beside the point: Section 3 neither promotes responsible opposite-sex parenting nor prevents irresponsible same-sex parenting. The legislative record contains no evidence that denying federal benefits to same-sex couples legally married under state law in any way serves to encourage responsible procreation or child-rearing, whether by opposite-sex or same-sex couples; and it is hard to imagine what such evidence would be. Congress did express the view that marriage plays an “irreplaceable role” in child-rearing. House Report 14. But it defies reason to suggest that Section 3 makes it any more likely that heterosexual individuals will marry or raise children together. See Supp. App. 29a (“DOMA does not affect in any way” these “incentives for heterosexual couples.”). Nor does it deprive gay and lesbian individuals married under state law of the ability to raise children. See Massachusetts, 682 F.3d at 14 (“DOMA cannot preclude same-sex couples in Massachusetts from adopting children or prevent a woman partner from giving birth to a child to be raised by both partners.”). If anything, the denial of federal benefits otherwise accorded to married individuals undermines the efforts of same-sex couples to raise their children, hindering rather than advancing any interest in promoting child welfare.
BLAG defends (Br. 44-47) the procreation/childrearing rationale primarily on the ground that the traditional definition of marriage rationally relates to the government’s interest in addressing “unplanned and unintended offspring”—a problem unique to

44
opposite-sex relationships. But Section 3 bears no relationship to that interest at all. If a state elects to limit marriage to opposite-sex couples because they alone present a risk of unintended offspring, Section 3 does not disturb that choice. Conversely, if a state elects to permit same-sex couples to marry, Section 3 does not preclude that choice either. Section 3 therefore does not further the end of providing a special institution at the state level to address unintended offspring. And Section 3 thus can bear no rational, let alone substantial, connection to any governmental interest in responsible parenting. See Supp. App. 30a (“Other courts have likewise been unable to find even a rational connection between DOMA and encouragement of responsible procreation and childrearing.”) (citing Massachusetts, 682 F.3d at 14-15; Pet. App. 18a-19a; Pedersen v. OPM, No. 3:10-cv-1750, 2012 WL 3113883, at *40-43 (D. Conn. July 31, 2012)).
4. Sovereign Choice
The House Report states an interest in “protecting state sovereignty and democratic self-governance.” As the House Report’s discussion of that interest makes clear, Congress was concerned with “protect[ing] the right of the people, acting through their state legislatures, to retain democratic control over the manner in which the States will define the institution of marriage.” House Report 18 (emphasis added). But Congress sought to serve that interest through Section 2, not Section 3. See p. 2, supra; see also Massachusetts, 682 F.3d at 14 (interest in protecting state sovereign choices “was not directed to section 3” but “was concerned solely with section 2, which reserved a state’s power not to recognize same-sex marriages performed in other states”). BLAG agrees (Br.

45
31), observing that “Section 2 preserved each state’s ability to define marriage as it preferred.”
BLAG attempts to justify Section 3 based on a parallel federal sovereign interest (Br. 30-33), i.e., that the federal government has the “same latitude” as the states to define marriage for its own purposes. It is, of course, true that the federal government has an interest in defining marriage for purposes of federal law. That is why the government has vigorously (and successfully) defended against Tenth Amendment and Spending Clause challenges to Section 3. See Massachusetts, 682 F.3d at 12. But that authority cannot be exercised in a manner that runs afoul of equal protection. Just as the federal government could not invoke its “federal sovereign interest” in defining marriage to refuse to recognize a lawful state marriage between individuals of a different race (cf. Loving v. Virginia, 388 U.S. 1 (1967)), it cannot refuse to recognize a lawful state marriage between individuals of the same sex—at least to the extent that exclusion would violate equal protection. BLAG’s reliance on the federal interest in defining marriage for federal purposes thus does no more than beg the question presented by this case.
5. Federal fisc
The House Report also identifies preservation of scarce government resources as an interest underlying Section 3’s denial of federal benefits to same-sex couples married under state law. House Report 18; see also BLAG Br. 37-41. Many of the rights and obligations affected by Section 3, such as spousal evidentiary privileges and nepotism rules, involve no expenditure of federal funds. In other cases, exclusion of state-recognized same-sex marriages costs the

46 government money by preserving eligibility for certain federal benefits (e.g., an individual who marries a higher-earning spouse might otherwise lose federal assistance). As the court of appeals concluded, “DOMA transcends a legislative intent to conserve public resources,” such that the law is “not substantially related to the important government interest of protecting the fisc.” Supp. App. 28a; see Romer, 517 U.S. at 635 (rejecting “interest in conserving resources” because “breadth of the amendment is so far removed from” that interest).
Even assuming that DOMA Section 3 saves the government money overall,19 that interest cannot satisfy heightened scrutiny. The government may not single out a group for exclusion from a benefits program solely to conserve public resources. See, e.g., Plyler v. Doe, 457 U.S. 202, 227 (1982) (“[A] concern for the preservation of resources standing alone can hardly justify the classification used in allocating those resources.”); Graham, 403 U.S. at 374-375 (rejecting “interest in preserving the fiscal integrity of [governmental] programs” through alienage-based exclusions) (citation omitted); Massachusetts, 682 F.3d at 14 (rejecting the preservation of scarce government resources as a basis for DOMA because “where the distinction is drawn against a historically disadvantaged group and has no other basis, Supreme
19 But see Massachusetts, 682 F.3d at 14 & n.9 (“[M]ore detailed recent analysis indicates that DOMA is more likely on a net basis to cost the government money.”) (citing Cong. Budget Office, The Potential Budgetary Impact of Recognizing Same-Sex Marriages, 2004, http://www.cbo.gov/sites/default/files/cbofiles/ftpdocs/55xx/ doc5559/06-21-samesexmarriage.pdf ).

47 Court precedent marks this as a reason undermining rather than bolstering the distinction”).
6. Other Interests Asserted by BLAG
The “actual purposes” advanced for Section 3—and hence the only purposes relevant in applying heightened scrutiny—are those identified in the House Report and discussed above. But because BLAG essentially defends Section 3 only under a rational-basis standard, it offers two additional possible rationales: promoting national uniformity for purposes of federal benefits eligibility (Br. 33-37) and proceeding cautiously with a change in the definition of marriage (Br. 41-43). Those additional rationalizations, even if considered, would fail under heightened scrutiny.
a. Uniformity and administrability
BLAG contends that Section 3 can be justified based on interests in promoting national uniformity and administrability of federal benefits. Those related interests, articulated solely in floor statements of individual legislators,20 are not properly considered as justifications under heightened scrutiny. They fail application of such scrutiny in any event.
i. Floor statements of individual legislators, without more, do not evidence the “actual purposes” of a law. The “actual purposes” of a statutory classification are most evident when set forth in the statute itself. See Zobel v. Williams, 457 U.S. 55, 61 n.7 (1982) (“These purposes were enumerated in the first section of the Act * * * . Thus we need not speculate as to the objectives of the legislature.”). When a
20 See BLAG Br. 8-9 (citing 142 Cong. Rec. 22,459 (1996) (Sen. Ashcroft); id. at 22,453 (Sen. Murkowski)).

48 statute lacks an express statement of its purposes, as with Section 3 of DOMA, this Court has supported looking to congressional committee reports. See, e.g., Garcia v. United States, 469 U.S. 70, 76 (1984) (“[W]e have repeatedly stated that the authoritative source for finding the Legislature’s intent lies in the Committee Reports on the bill, which ‘represen[t] the considered and collective understanding of those Congressmen involved in drafting and studying proposed legislation.’ ”) (quoting Zuber v. Allen, 396 U.S. 168, 186 (1969) (bracket in original)); see also, e.g., Jimenez v. Weinberger, 417 U.S. 628, 634 & n.3 (1974) (citing Conference Committee Report for “primary purpose” of scheme challenged under heightened scrutiny); BLAG Br. 6-11 (assuming House Report sets forth congressional purposes).
Statements of individual legislators, by contrast, generally shed little light on a statutory classification’s actual purposes. In determining legislative intent, this Court has “eschewed reliance on the passing comments of one Member” of Congress and “casual statements from the floor debates.” Garcia, 469 U.S. at 76. Such comments and statements “reflect at best the understanding of individual Congressmen,” not that of Congress. Zuber, 396 U.S. at 186. For purposes of heightened scrutiny, therefore, BLAG cannot rely solely on floor statements to defend DOMA under a uniformity/administrability rationale.
ii. That rationale fails in any event. While the federal government possesses the authority to set the terms of its own benefits and obligations (p. 45, supra), its longstanding traditional practice has been to recognize (with narrow, context-specific exceptions, see BLAG Br. 5 n.2) any marriage lawfully recognized

49 under state law. The federal government has consistently adhered to that practice in the face of inconsistencies among state marriage laws with respect to consanguinity, minimum-age, divorce, and other requirements and limitations concerning marriage. See Family Law Professors C.A. Amicus Br. 5-14. DOMA Section 3 sharply breaks from that established tradition of deference to state marriage laws, thereby trading one form of uniformity (consistent reliance on state marriage laws) for another (exclusion of a particular type of marriage, i.e., that between same-sex couples) without providing a sufficient justification for preferring one to the other. See Supp. App. 26a (“Because DOMA is an unprecedented breach of longstanding deference to federalism that singles out same-sex marriage as the only inconsistency (among many) in state law that requires a federal rule to achieve uniformity, the rationale premised on uniformity is not an exceedingly persuasive justification for DOMA.”).
The latter form of “uniformity,” moreover, creates its own administrative complications that make federal law less, not more, straightforward. For individuals from states that permit same-sex couples to marry, Section 3 places an administrative burden on government officials to look beyond a simple declaration of marriage or license—something many federal agencies had not typically done before DOMA—to determine whether the marriage involves individuals of the same sex. See Golinski v. OPM, 824 F. Supp. 2d 968, 1001-1002 (N.D. Cal. 2012) (“The passage of DOMA actually undermined administrative consistency by requiring that the federal government, for the first time, discern which state definitions of marriage are

50
entitled to federal recognition and which are not.”). Congress gave no thought to that administrative burden relative to the potential burden associated with evaluating a change in domicile potentially affecting a same-sex couple’s marital status. Accordingly, even assuming the asserted interests in uniformity and administrability were sufficiently important, BLAG has not met its burden of showing that Section 3 substantially furthers those interests. Cf. Califano v. Goldfarb, 430 U.S. 199, 220 (1977) (Stevens, J., concurring in judgment) (“administrative convenience was not the actual reason for the discrimination”).
b. Proceeding with caution
BLAG contends (Br. 42) that Congress “rationally could have concluded that any experimentation with [marriage] should proceed first at the state level.” BLAG cites no law for the proposition that an interest in “proceeding with caution” is sufficiently important to justify denying a benefit to a suspect or quasisuspect class. Similar arguments could have been made with respect to racial integration and gender equality. See, e.g., Watson v. City of Memphis, 373 U.S. 526, 528 (1963) (rejecting city’s attempt to “justify its further delay in conforming fully and at once to constitutional mandates by urging the need and wisdom of proceeding slowly and gradually in its desegregation efforts”). In any event, BLAG’s contention overlooks that DOMA operates only for purposes of determining federal benefits. As BLAG itself acknowledges (Br. 43), because DOMA takes state law as a given, the federal definition affects the institution of marriage, if at all, only “at the margin.”
There is, moreover, nothing temporary or provisional about Section 3. It contains no sunset provision

51
and no provision for any further study of the issue. See Massachusetts, 682 F.3d at 15 (“[T]he statute was not framed as a temporary time-out; and it has no expiration date, such as one that Congress included in the Voting Rights Act. The House Report’s own arguments—moral, prudential and fiscal—make clear that DOMA was not framed as a temporary measure.”) (citations omitted). Section 3 thus does not substantially further any interest in proceeding cautiously pending further analysis or study.
C. The Government Does Not Challenge The Constitutionality Of DOMA Section 3 Under Deferential Rational-Basis Review, But Section 3 Would Fail A More Searching Form Of That Review
In the event the Court declines to apply heightened scrutiny, the question would be whether Section 3 satisfies rational-basis review. The Court generally applies rational-basis review in a highly deferential manner—for example, when “ordinary commercial transactions are at issue.” Armour v. City of Indianapolis, 132 S. Ct. 2073, 2080 (2012) (citation omitted); see, e.g., Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 487-488 (1955). Under such review, the Court will uphold a legislative classification if it bears a “rational relationship” to “some legitimate governmental purpose.” Heller, 509 U.S. at 320. The “burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it,” including post-hoc rationalizations that did not actually motivate its adoption. Ibid. (quoting Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364 (1973)). The statute generally must be upheld “if there is any reasonably conceivable state of facts that could provide a rational basis for the classi-

52 fication,” and “a legislative choice * * * may be based on rational speculation unsupported by evidence or empirical data.” FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313-314, 315 (1993).
The government has concluded that heightened scrutiny governs classifications based on sexual orientation and that DOMA Section 3 cannot be sustained under that standard. If the Court disagrees and applies rational-basis review, the government has previously defended Section 3 under rational-basis review, and does not challenge the constitutionality of Section 3 under that highly deferential standard.
Some have understood a line of this Court’s decisions, however, to apply rational-basis review with added focus in certain circumstances. In her opinion concurring in the judgment in Lawrence, in considering a law “directed toward gay persons as a class,” Justice O’Connor stated that “[w]hen a law exhibits such a desire to harm a politically unpopular group, we have applied a more searching form of rational basis review to strike down such laws under the Equal Protection Clause.” 539 U.S. at 580, 583 (citing Romer, supra; Cleburne, supra; United States Dep’t of Agric. v. Moreno, 413 U.S. 528 (1973)); see also, e.g., Massachusetts, 682 F.3d at 10 (“Without relying on suspect classifications, Supreme Court equal protection decisions have both intensified scrutiny of purported justifications where minorities are subject to discrepant treatment and have limited the permissible justifications.”) (citing Romer, supra; Cleburne, supra; Moreno, supra).
In the government’s view, those considerations are best taken into account through the established framework of heightened scrutiny. Insofar as this

53 Court were instead to apply rational-basis review with added focus, laws targeted at gay and lesbian people would be a particularly strong candidate for that approach. As explained, classifications based on sexual orientation—unlike other classifications for which the Court has denied suspect or quasi-suspect status— distinctively implicate each of the considerations this Court has identified for application of heightened scrutiny. To the extent sexual orientation may be considered to fall short in some dimension, the history of discrimination and the absence of relation to one’s capabilities associated with this particular classification would uniquely qualify it for scrutiny under an approach that calls for a measure of added focus to guard against giving effect to a desire to harm an “unpopular group.” Lawrence, 539 U.S. at 580 (O’Connor, J., concurring in judgment).
Section 3 would fail to satisfy any such analysis, largely for the reasons it fails heightened scrutiny. Like the law struck down in Romer, Section 3 is “at once too narrow and too broad.” Romer, 517 U.S. at 633. It imposes a “broad and undifferentiated disability” (id. at 632) on the same narrow class of people at issue in Romer—gay and lesbian people—by denying effect to their state-recognized marital relationships across the entire spectrum of federal law. And the asserted rationales are sufficiently “far removed from” the effect of the law—particularly given its breadth—that they should not be credited as valid justifications. Id. at 635; see Massachusetts, 682 F.3d at 15 (“We conclude, without resort to suspect classifications or any impairment of Baker, that the rationales offered do not provide adequate support for section 3 of DOMA.”).

54
* * * * * BLAG (Br. 58-59) makes an appeal to this Court to allow the democratic process to run its course. That approach would be very well taken in most circumstances. This is, however, the rare case in which deference to the democratic process must give way to the fundamental constitutional command of equal treatment under law. Section 3 of DOMA targets the many gay and lesbian people legally married under state law for a harsh form of discrimination that bears no relation to their ability to contribute to society. It is abundantly clear that this discrimination does not substantially advance an interest in protecting marriage, or any other important interest. The statute simply cannot be reconciled with the Fifth Amendment’s guarantee of equal protection. The Constitution therefore requires that Section 3 be invalidated.
CONCLUSION
For the foregoing reasons, the judgment of the court of appeals should be affirmed.
Respectfully submitted.
DONALD B. VERRILLI, JR. Solicitor General
STUART F. DELERY Principal Deputy Assistant Attorney General
SRI SRINIVASAN Deputy Solicitor General
PRATIK A. SHAH Assistant to the Solicitor General
MICHAEL JAY SINGER AUGUST E. FLENTJE HELEN L. GILBERT
Attorneys
FEBRUARY 2013

APPENDIX
1. U.S. Const. Amend. V provides, in pertinent part: No person shall * * * be deprived of life, liberty, or property, without due process of law * * * .
2. 28 U.S.C. 1738C (DOMA § 2) provides:
Certain acts, records, and proceedings and the effect thereof
No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.
3. 1 U.S.C. 7 (DOMA § 3) provides:
Definition of “marriage” and “spouse”
In 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.
(1a)

 
 No. 12-307

In The
Supreme Court of the United States
________________
UNITED STATES OF AMERICA,
Petitioner, v. EDITH SCHLAIN WINDSOR
AND
BIPARTISAN LEGAL ADVISORY GROUP OF THE UNITED STATES HOUSE OF REPRESENTATIVES,
Respondents. ________________
On Writ of Certiorari to the United States Court of Appeals
for the Second Circuit ________________

BRIEF ON JURISDICTION FOR RESPONDENT

THE BIPARTISAN LEGAL ADVISORY GROUP OF

THE U.S. HOU__S_E__O__F__R_E__P_R__E_SENTATIVES

KERRY W. KIRCHER

PAUL D. CLEMENT

General Counsel

Counsel of Record

WILLIAM PITTARD

H. CHRISTOPHER BARTOLOMUCCI

Deputy General Counsel NICHOLAS J. NELSON

CHRISTINE DAVENPORT MICHAEL H. MCGINLEY Senior Assistant Counsel BANCROFT PLLC

TODD B. TATELMAN

1919 M Street, N.W.

MARY BETH WALKER

Suite 470

ELENI M. ROUMEL

Washington, D.C. 20036

Assistant Counsels

(202) 234-0090

OFFICE OF GENERAL COUNSEL pclement@bancroftpllc.com

UNITED STATES HOUSE OF

REPRESENTATIVES

219 Cannon House Office Bldg.

Washington, D.C. 20515

(202) 225-9700 Counsel for Respondent

QUESTIONS PRESENTED
This brief addresses the two jurisdictional questions that this Court has directed the litigants to address:
1. Whether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing in this case.
2. Whether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case.

ii
PARTIES TO THE PROCEEDING The Bipartisan Legal Advisory Group of the United States House of Representatives intervened as a defendant in the district court and was an appellant and appellee in the court of appeals.* Edith Schlain Windsor was the plaintiff in the district court and an appellee in the court of appeals. The United States of America was a defendant in the district court and an appellant and appellee in the court of appeals.
* The Bipartisan Legal Advisory Group articulates the institutional position of the House in all litigation matters in which it appears. The Group currently is comprised of the Honorable John A. Boehner, Speaker of the House, the Honorable Eric Cantor, Majority Leader, the Honorable Kevin McCarthy, Majority Whip, the Honorable Nancy Pelosi, Democratic Leader, and the Honorable Steny H. Hoyer, Democratic Whip. While the Democratic Leader and the Democratic Whip have declined to support the position taken by the Group on the merits of DOMA Section 3’s constitutionality in this and other cases, they support the Group’s Article III standing.

iii
TABLE OF CONTENTS
QUESTIONS PRESENTED.........................................i
PARTIES TO THE PROCEEDING ............................ii
TABLE OF AUTHORITIES.......................................vi
OPINIONS BELOW AND JURISDICTION .............. 1
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED .................................. 1
STATEMENT OF THE CASE .................................... 1
A. The Defense of Marriage Act ........................ 1
B. The Department of Justice Stops Defending DOMA and Starts Attacking It....................................................2
C. Proceedings in This Case .............................. 5
D. House Resolution 5........................................8
SUMMARY OF THE ARGUMENT ............................ 8
ARGUMENT .............................................................. 11
I. The House Of Representatives, Acting Through Its Bipartisan Legal Advisory Group, Has Standing..........................................11
A. The House Has Standing to Defend a Statute Against a Constitutional Challenge When the Executive Branch Refuses to Do So ............................. 11
B. Amica’s Arguments That the House Lacks Standing Are Mistaken .................... 20

iv
II. The House’s Participation As A Party Ensures This Court’s Article III Jurisdiction, But The Executive’s Lack Of Appellate Standing Requires Dismissal Of Its Petition .................................... 32
A. If the House Lacks Standing, This Court Lacks Jurisdiction to Decide This Case ..................................................... 32
B. Because the Executive Branch Received Precisely the Result It Sought Below, It Lacks Appellate Standing....................................................... 35
CONCLUSION .......................................................... 38
APPENDIX
Appendix A
Relevant Constitutional Provisions
U.S. Const. art. I, § 5, cl. 2 ................... 1a
U.S. Const. art. I, § 7, cl. 2 ................... 2a
U.S. Const. art. II, § 3........................... 3a
U.S. Const. art. III, § 2, cl. 1 ................ 4a
Appendix B
House Resolution 5, 113th Cong. § 4(a) (2013) ............................ 5a
Appendix C
Rules of the House of Representatives, Rule I.11, 103d Cong. (1993)........................................ 9a

v
Rules of the House of Representatives, Rule II.8, 112th Cong. (2011) .................................... 10a
Rules of the House of Representatives, Rule II.8, 113th Cong. (2013) .................................... 11a
Rules of the House of Representatives, Rule IX, 113th Cong. (2013) .................................... 12a

vi

TABLE OF AUTHORITIES

Cases

Page(s)

Adolph Coors Co. v. Brady, 944 F.2d 1543 (10th Cir. 1991) .................... 17, 25

Am. Fed’n of Gov’t Emps. v. United States, 634 F. Supp. 336 (D.D.C. 1986).......................... 25

Ameron, Inc. v. U.S. Army Corps of Eng’rs, 787 F.2d 875 (3d Cir. 1986) .......................... 17, 25

Arizonans for Official English v. Arizona, 520 U.S. 43 (1997) ........................................ 11, 18

Bowsher v. Synar, 478 U.S. 714 (1986) ................................ 17, 20, 25

Buckley v. Valeo, 424 U.S. 1 (1976) ................................................ 20

Bunting v. Mellen, 541 U.S. 1019 (2004) .......................................... 35

Burke v. Barnes, 479 U.S. 361 (1987) ................................ 17, 21, 25

Camreta v. Greene, 131 S. Ct. 2020 (2011) .................................. 11, 13

Cheng Fan Kwok v. INS, 392 U.S. 206 (1968) ............................................ 16

City of Boerne v. Flores, 521 U.S. 507 (1997) ............................................ 19

Coleman v. Miller, 307 U.S. 433 (1939) .......................... 13, 17, 18, 19

vii
Corning v. Troy Iron & Nail Factory, 56 U.S. (15 How.) 451 (1853) ............................. 35
Deposit Guar. Nat’l Bank v. Roper, 445 U.S. 326 (1980) ............................................ 35
GTE Sylvania v. Consumers Union of the U.S., 445 U.S. 375 (1980) ............................................ 32
Hayburn’s Case, 2 U.S. (2 Dall.) 409 (1792) .................................. 34
Hunt v. Ake, No. 04-cv-1852 (M.D. Fla. Jan. 20, 2005) ............ 2
In re Benny, 812 F.2d 1133 (9th Cir. 1987) ...................... 17, 25
In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004) ............. 2
In re Koerner, 800 F.2d 1358 (5th Cir. 1986) ...................... 17, 25
In re Moody, 46 B.R. 231 (M.D.N.C. 1985)..............................25
In re Prod. Steel, Inc., 48 B.R. 841 (M.D. Tenn. 1985)...........................25
In re Tom Carter Enters., Inc., 44 B.R. 605 (C.D. Cal. 1984) .............................. 25
INS v. Chadha, 462 U.S. 919 (1983) .................................... passim
Jinks v. Richland Cnty., S.C., 538 U.S. 456 (2003) ............................................ 15
Jones v. Coughlin, 45 F.3d 677 (2d Cir. 1995)..................................14

viii
Karcher v. May, 484 U.S. 72 (1987) .............................................. 18
Lear Siegler, Inc., Energy Prods. Div. v. Lehman, 893 F.2d 205 (9th Cir. 1989) ........................ 17, 25
Lord v. Veazie, 49 U.S. (8 How.) 251 (1850) ............................... 32
Los Angeles v. Lyons, 461 U.S. 95 (1983) .............................................. 12
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ................................ 11, 16, 18
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) .............................. 30
Marshall Field & Co. v. Clark, 143 U.S. 649 (1892) ............................................ 28
Mass. Bd. of Ret. v. Murgia, 427 U.S. 307 (1976) ............................................ 14
Massachusetts v. U.S. Dep’t of Health & Human Servs., 682 F.3d 1 (1st Cir. 2012).................................5, 7
McGrain v. Daugherty, 273 U.S. 135 (1927) ............................................ 20
Moore v. Charlotte-Mecklenberg Bd. of Educ., 402 U.S. 47 (1971) ........................................ 32, 33
Muskrat v. United States, 219 U.S. 346 (1911) ................................ 30, 34, 37
Myers v. United States, 272 U.S. 52 (1926) .............................................. 16

ix
N.Y. Tel. Co. v. Maltbie, 291 U.S. 645 (1934) ............................................ 35
Nixon v. United States, 506 U.S. 224 (1993) ............................................ 28
North v. Walsh, 656 F. Supp. 414 (D.D.C. 1987).......................... 25
Princeton University v. Schmid, 455 U.S. 100 (1982) ............................................ 33
Pub. Serv. Comm’n v. Brashear Freight Lines, Inc., 306 U.S. 204 (1939) ............................................ 35
Raines v. Byrd, 521 U.S. 811 (1997) ...................................... 13, 19
Raygor v. Regents of Univ. of Minn., 534 U.S. 533 (2002) ............................................ 16
Reed v. County Comm’rs of Del. Co., Pa., 277 U.S. 376 (1928) ............................................ 29
Schweiker v. Wilson, 450 U.S. 221 (1981) ............................................ 14
Sixty-Seventh Minn. State Senate v. Beens, 406 U.S. 187 (1972) ............................................ 22
Smelt v. Cnty. of Orange, 374 F. Supp. 2d 861 (C.D. Cal. 2005)...................2
Smelt v. Cnty. of Orange, 447 F.3d 673 (9th Cir. 2006) ................................ 2
Sullivan v. Bush, No. 04-cv-21118 (S.D. Fla. Mar. 16, 2005)...........2

x
Torres-Barragan v. Holder, Nos. 08-73745 & 09-71226 (9th Cir. 2010).....................................................31
United States v. Ballin, 144 U.S. 1 (1892) ................................................ 28
United States v. Johnson, 319 U.S. 302 (1943) ...................................... 32, 34
United States v. Lovett, 328 U.S. 303 (1946) ............................................ 16
United States v. Munoz-Flores, 495 U.S. 385 (1990) ............................................ 28
United States v. Smith, 286 U.S. 6 (1932) ................................................ 29
Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005) ................ 2
Zivotofsky v. Clinton, 132 S. Ct. 1421 (2012) ........................................ 28
Constitutional Provisions
U.S. Const. art. I, § 1 ................................................. 14
U.S. Const. art. I, § 5, cl. 2 ........................................ 28
U.S. Const. art I, § 7, cl. 2 ............................. 13, 21, 22
Statutes
1 U.S.C. § 7 .................................................................. 2
Don’t Ask Don’t Tell Repeal Act of 2010, Pub. L. No. 111-321, 124 Stat. 3515, 10 U.S.C. § 654 note ........................................... 23
28 U.S.C. § 530D(a)(1)(B)(ii) ..................................... 24

xi
28 U.S.C. § 1252 ........................................................ 36
28 U.S.C. § 1637(d) .................................................... 15
28 U.S.C. § 2403(a) .............................................. 16, 24
Rules
Rule I.11, Rules of the House of Representatives 103d Cong. (1993) ................... 25
Rule II.8, Rules of the House of Representatives, 112th Cong. (2011).................25
Rule II.8, Rules of the House of Representatives, 113th Cong. (2013).................25
Rule IX, Rules of the House of Representatives, 113th Cong. (2013).................27
Other Authorities
123 Cong. Rec. 21007 (1977) ..................................... 22
136 Cong. Rec. 4997 (1990) ....................................... 27
137 Cong. Rec. 29968 (1991) ..................................... 27
159 Cong. Rec. H13 (daily ed. Jan. 3, 2013) ............. 25
A. Bickel, Politics and the Warren Court (1965) .................. 4
Br. for Respondents, Torres-Barragan v. Holder, Nos. 08-73745 & 09-71226 (9th Cir. Aug. 12, 2010) (ECF 41-2) ..................... 3
Br. for United States as Amicus Curiae Supporting Pet’r, Stern v. Marshall, 131 S. Ct. 2594 (2012) (No. 10-179), 2010 WL 4717271 ............................................... 16

xii
Br. for United States, Windsor, Nos. 12-2335 & 12-2435 (2d Cir. Aug. 10, 2012) (ECF 120) .............................................................. 4
H. Rep. No. 95-1756 (1978) ....................................... 22
H. Res. 49, 97th Cong. (1981)....................................24
H. Res. 362, 101st Cong. (1990) ................................ 27
H. Res. 268, 102d Cong. (1991) ................................. 27
H. Res. 5, 113th Cong. (2013).......................... 8, 26, 30
Note, Executive Discretion and the Congressional Defense of Statutes, 92 Yale L.J. 970 (1983).......................................21
R. Stern & E. Gressman, Supreme Court Practice (8th ed. 2002) .............. 36

OPINIONS BELOW AND JURISDICTION
The Bipartisan Legal Advisory Group of the United States House of Representatives (the “House”) incorporates its statements of the Opinions Below and Jurisdiction set forth in its Brief on the Merits.
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
The relevant provisions of Articles I, II, and III of the United States Constitution; Rules II.8 and IX of the Rules of the House of Representatives for the 113th Congress; Rule I.11 of the Rules of the House of Representatives for the 103d Congress; and House Resolution 5, 113th Cong. (2013) are reproduced in the Appendix to this brief at 1a.
STATEMENT OF THE CASE
The House incorporates its Statement of the Case in its Brief on the Merits. The Statement below highlights the procedural events most relevant to the jurisdictional issues addressed in this brief.
A. The Defense of Marriage Act
The Defense of Marriage Act (“DOMA”) was enacted in 1996 with strong majorities in both Houses of Congress and signed into law by President Clinton. DOMA reflected Congress’ determination that each sovereign should be able to determine for itself how to define marriage for purposes of its own law. Section 2 allows each state to decide for itself whether to retain the traditional definition without having another jurisdiction’s decision imposed upon it via full faith and credit principles. And Section 3

2
preserves the federal government’s ability to use the traditional definitions of marriage and spouse for purposes of federal law and programs. It clarifies that, for purposes of federal law, “marriage” means the legal union of one man and one woman, and “spouse” means a person of the opposite sex who is a husband or wife. 1 U.S.C. § 7. But DOMA does not “preclude Congress or anyone else in the federal system from extending benefits to those who are not included within [its] definition,” provided only that the extension of benefits is not predicated on the definition of “marriage” or “spouse.” Smelt v. Cnty. of Orange, 447 F.3d 673, 683 (9th Cir. 2006), cert. denied, 549 U.S. 959 (2006).
B. The Department of Justice Stops Defending DOMA and Starts Attacking It
Following DOMA’s enactment, the Department of Justice successfully defended Section 3 of DOMA against several constitutional challenges, prevailing in every case to reach final judgment.1 The Department continued to defend DOMA during the first two years of the current Administration, even while advertising disagreement with DOMA as a policy matter, with the following disclaimer:
1 See Smelt v. Cnty. of Orange, 374 F. Supp. 2d 861 (C.D. Cal. 2005), aff’d in part and vacated in part for lack of standing, 447 F.3d 673 (9th Cir. 2006); Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005); Hunt v. Ake, No. 04-cv-1852 (M.D. Fla. Jan. 20, 2005); In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004); see also Sullivan v. Bush, No. 04-cv-21118 (S.D. Fla. Mar. 16, 2005) (granting voluntary dismissal after Department moved to dismiss).

3
[T]he Administration does not support DOMA as a matter of policy …. Consistent with the rule of law, however, the Department of Justice has long followed the practice of defending federal statutes as long as reasonable arguments can be made in support of their constitutionality, even if the Department disagrees with a particular statute as a policy matter, as it does here. This longstanding and bipartisan tradition accords the respect appropriately due to a coequal branch of government and ensures that subsequent administrations will faithfully defend laws with which they may disagree on policy grounds.
Br. for Respondents 52 n.30, Torres-Barragan v. Holder, Nos. 08-73745 & 09-71226 (9th Cir. Aug. 12, 2010) (ECF 41-2).
In February 2011, however, the Administration abruptly reversed course and ceased defending DOMA’s constitutionality. The Attorney General announced that he and the President were now of the view “that a heightened standard [of review] should apply [to DOMA], that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3.” JA 193.
The Attorney General acknowledged the Department’s “longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense,” id., but did not apply that standard to DOMA. On the contrary, the Attorney General conceded that every federal court of appeals to have considered the

4
issue (eleven of the thirteen circuits) had applied rational basis review to sexual orientation classifications and that “a reasonable argument for Section 3’s constitutionality may be proffered under [the rational basis] standard.” Id.2
Although the Attorney General advised Congress only that the Department would “cease defense” of DOMA Section 3, the Department did not merely bow out of DOMA litigation. Instead, it immediately and consistently attacked DOMA in court. It argued that Section 3 violates equal protection, advocated a heightened-scrutiny standard that would imperil other duly-enacted statutes, and urged courts to render judgment in favor of plaintiffs challenging the law even where rational basis review was binding Circuit law. The Department even went so far as to accuse the Congress that enacted DOMA—many of whose Members still serve—and implicitly the President who signed the bill of being motivated by “animus.” Br. for United States 25, Windsor, Nos. 12-2335 & 12-2435 (2d Cir. Aug. 10, 2012) (ECF 120).
On March 9, 2011, the Speaker of the House, pursuant to House Rule II.8, convened a meeting of the House’s Bipartisan Legal Advisory Group. After
2 The timing of the executive’s announcement on DOMA was not prompted by any developments within the courts of appeals or the legislative sphere. In fact, the decision to abandon the defense of DOMA came shortly after the end of a two-year period in which the President’s party controlled both houses of Congress, which might have made repeal possible through the normal legislative process. Cf. A. Bickel, Politics and the Warren Court 134 (1965) (Supreme Court not the place “for replaying of the [political] game”).

5

a full airing of views on how the House should respond to the executive’s remarkable “about face,” Massachusetts v. U.S. Dep’t of Health & Human Servs., 682 F.3d 1, 7 (1st Cir. 2012), the Group voted 3–2 to recommend that the Speaker direct the House General Counsel to take such steps as he considered appropriate, including intervention, to protect the interests of the House in litigation. Thereafter, the Speaker directed the General Counsel to represent the Group, on behalf of the House, as intervenor in cases in which DOMA Section 3’s constitutionality was challenged, and where the Attorney General refused to defend the statute. The Speaker did so to protect the House’s institutional interests; to ensure that the federal judiciary—rather than the executive branch unilaterally—ultimately would decide whether Section 3 is constitutional; and to ensure that the federal judiciary, in making that determination, would have the benefit of a full and vigorous defense of the statute.

To date, the House has intervened in fifteen

DOMA Section 3 cases, including this case. (One

additional motion to intervene is pending in a

recently-filed case.)

No court has denied

intervention.

C. Proceedings in This Case

Respondent Edith Schlain Windsor and Thea Clara Spyer obtained a certificate of marriage from the province of Ontario, Canada in 2007. Ms. Spyer died in 2009, naming Ms. Windsor the executor and sole beneficiary of her estate. At that time, New York did not issue marriage licenses to same-sex couples.

6
After paying federal estate taxes, Ms. Windsor, as executor, sought a refund on the theory that the estate was entitled to the marital deduction. The IRS denied the refund, and Ms. Windsor filed this suit in her capacity as executor.
In light of the Department’s refusal to defend DOMA, the district court invited “Congress … to intervene in this matter … by motion pursuant to Fed. R. Civ. Pro. 24(a), consistent with 28 U.S.C. § 530D.” Order, No. 10-8435 (S.D.N.Y. Mar. 15, 2011) (ECF 11). The House did so, and the court granted the House intervention as of right under Rule 24(a)(2). JA 221–25. The court found that the House “has a cognizable interest in defending the enforceability of statutes the House has passed when the President declines to enforce them” and that its “interests are not currently being adequately represented in this action.” JA 223, 224.
Neither the Department nor Ms. Windsor opposed the House’s intervention, JA 221, although the Department suggested that the House be limited to presenting arguments in defense of DOMA while the Department alone would “file all procedural motions, including notices of appeal and petitions for certiorari.” JA 225. The House objected that this “would relegate it to the status of amicus curiae,” and the district court agreed. JA 221. It refused to “circumscribe[]” the House’s role in the case and granted the House the status of a “full party.” JA 226. The district court also ruled that the House “has standing to intervene in this litigation to defend the constitutionality of Section 3 of DOMA.” JA 227.

7
Although the Department nominally represented the defendant in this case, it urged the district court to strike down DOMA and enter judgment ordering the government to issue a refund to Ms. Windsor. See JA 488 (“Section 3 of DOMA fails heightened scrutiny, and this Court should … grant Plaintiff’s motion for summary judgment.”). To this end, the Department filed a “Motion to Dismiss”—surely one of the strangest documents ever to bear that label— that did not, in fact, seek dismissal of Ms. Windsor’s suit. See JA 437–39. On the contrary, the Department’s so-called motion to dismiss itself stated that, if the district court “agrees with Plaintiff and the United States …, it should not dismiss” the complaint. JA 439 (emphases added).
The district court invalidated DOMA under a variant of rational basis review it labeled “intensified scrutiny.” 682 F.3d at 10. The House appealed the district court’s decision. Soon thereafter, the Department noticed its own appeal. The House moved to dismiss the Department’s separatelynumbered appeal, arguing that, because the Department had urged the district court to strike down DOMA and enter judgment for the plaintiff, and the district court had done exactly that, the Department lacked standing to appeal.
The Second Circuit denied the House’s motion to dismiss the Department’s appeal, even though the executive had “prevailed in the result it advocated in the district court,” because the executive “continues to enforce Section 3 of DOMA, which is indeed why Windsor does not have her money.” App. to Supp. Br. for U.S. 4a. On the merits, the Second Circuit

8
determined—in conflict with eleven other circuits— that heightened scrutiny applies to classifications based on sexual orientation. Id. at 15a. And the court concluded that Section 3 of DOMA could not survive heightened scrutiny.
Following the Second Circuit’s decision, on December 7, 2012, this Court granted the Department’s petition, which had been filed before the Second Circuit’s judgment issued. In doing so, this Court ordered the parties to address the two jurisdictional questions addressed in this brief.
On December 28, 2012, the House filed its own petition for a writ of certiorari to the Second Circuit. The House’s petition, No. 12-785, is currently pending before this Court.
D. House Resolution 5
On January 3, 2013, the opening day of the 113th Congress, the House adopted H. Res. 5, 113th Cong. (2013), App.5a. House Resolution 5 expressly “authorize[d] the Bipartisan Legal Advisory Group … to defend the constitutionality of Section 3 of [DOMA] … including in the case of Windsor v. United States.” Id. § 4(a)(1)(A)(i), App.5a. And it affirmed that “the Bipartisan Legal Advisory Group continues to speak for, and articulate the institutional position of, the House in all litigation matters in which it appears, including in Windsor v. United States.” Id. § 4(a)(1)(B), App.6a.
SUMMARY OF THE ARGUMENT
The House, speaking through its Bipartisan Legal Advisory Group, has standing to intervene to

9
defend the constitutionality of DOMA Section 3 when, as here, the executive declines to do so. Indeed, without the House’s participation, it is hard to see how there is any case or controversy here at all. Both Ms. Windsor and the executive agree that DOMA is unconstitutional and that Ms. Windsor was entitled to a refund. And the lower courts granted them all the relief they requested. Only the House’s intervention provides the adverseness that Article III demands.
I. The House certainly has a concrete interest in ensuring that its passage of DOMA is not completely nullified by a binding judicial determination. Such a judicial determination of unconstitutionality imposes a distinct injury on the House that is directly traceable to the decision and redressable by the decision’s reversal. Article III requires no more.
All of this is obvious in the familiar situation where the executive discharges its traditional duty to defend the constitutionality of an Act of Congress. But when the executive refuses to discharge that function, as it has here, the House clearly has standing to intervene and defend the constitutionality of legislation it has passed pursuant to its core lawmaking powers. This Court held as much in INS v. Chadha, 462 U.S. 919, 940 (1983). Amica’s efforts to distinguish Chadha, or otherwise suggest the House lacks standing, are unavailing.
II. The House’s standing is both necessary and sufficient for this Court’s Article III jurisdiction. Without the House’s participation, there is no ongoing controversy between Ms. Windsor and the executive. Their shared desire to have their Second

10
Circuit victory embraced by this Court would not satisfy Article III, absent the House as an adverse litigant.
Indeed, even with the House’s participation as a party, the executive lacks appellate standing to seek this Court’s review of a Second Circuit decision that entered the precise relief the executive sought on the precise ground the executive advocated. The executive and Ms. Windsor can obtain no relief from this Court they are not already entitled to under the Second Circuit’s judgment. The desire for greater precedential impact on other cases is not sufficient to create appellate standing in this one.
Fortunately, there is a party aggrieved by the decision below that can obtain greater relief if the judgment below is reversed. That party is, of course, the House. Thus, if this Court agrees with the House’s argument in Section I that the House has Article III standing, and with its argument in Section II that the executive lacks appellate standing, the proper course is clear: This Court should dismiss the executive’s petition in No. 12-307, grant the House’s petition in No. 12-785, and use the latter petition as the vehicle to resolve the question of DOMA’s constitutionality.

11
ARGUMENT
I. The House Of Representatives, Acting Through Its Bipartisan Legal Advisory Group, Has Standing.
A. The House Has Standing to Defend a Statute Against a Constitutional Challenge When the Executive Branch Refuses to Do So.
Although questions of Article III standing most often concern plaintiffs, standing to intervene or to “defend on appeal in the place of an original defendant, no less than standing to sue, demands that the litigant possess a direct stake in the outcome.” Arizonans for Official English v. Arizona, 520 U.S. 43, 64 (1997) (internal quotation marks omitted). Such a direct stake is present when a party “has ‘suffered an injury in fact’ that is caused by ‘the conduct complained of,’ and that ‘will be redressed by a favorable decision.’” Camreta v. Greene, 131 S. Ct. 2020, 2028 (2011) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)). The House undeniably has a direct stake in this litigation. Ms. Windsor and the executive seek relief that would harm the House’s concrete interests by permanently nullifying its passage of DOMA and subjecting future legislative action to a heightened standard of equal protection review. Those harms flow directly from the relief sought and granted in the courts below. And reversal by this Court will provide a complete remedy.
1. The House clearly has standing to intervene to defend DOMA’s constitutionality when the executive

12
will not. Indeed, without the House’s participation as a party, it is hard to understand how there is any case or controversy at all. Both Ms. Windsor and the executive agreed in the district court that DOMA was unconstitutional, that Ms. Windsor should receive a refund, and that the courts should order exactly that result. Parties that agree on a legal issue and the appropriate relief normally do not go to court, let alone have a justiciable controversy. The “concrete adverseness which sharpens the presentation of issues” is a core requirement of Article III, and the requirements of standing, along with justiciability doctrines, are designed to ensure adversary presentation and avoid feigned controversies or efforts to obtain advisory opinions. Los Angeles v. Lyons, 461 U.S. 95, 101 (1983) (internal quotation marks omitted).3
Here, however, the executive took the position that it would issue Ms. Windsor a refund only if the district court declared DOMA unconstitutional. Such a judicial declaration affects the House very differently from an executive decision to issue a refund on the ground that a particular administration views DOMA as unconstitutional and will not enforce it. The latter decision—although also an affront to Congress—at least would mean that DOMA would remain on the books and could be enforced by subsequent administrations. The former,
3 The situation here before the House’s intervention is distinguishable from the circumstances of Chadha where the executive initiated deportation proceedings and the issue on which the executive and Chadha ultimately agreed arose only as a defense asserted by Chadha.

13
by invoking the powers of the third branch of government, would if successful render the House’s exercise of its core lawmaking function “completely nullified.” Raines v. Byrd, 521 U.S. 811, 823 (1997).
The executive’s effort to procure permanent judicial nullification of DOMA Section 3 clearly implicates the House’s interests. And, a fortiori, once the executive obtained that relief from the lower courts, the House clearly had standing to appeal. The House has “a plain, direct and adequate interest in maintaining the effectiveness of” its passage of a law. Coleman v. Miller, 307 U.S. 433, 438 (1939). The House is a constitutionally necessary participant in the lawmaking process; DOMA could not become law without passage by the House. See U.S. Const. art I, § 7, cl. 2. Thus, the lower court’s invalidation of DOMA Section 3 at the executive’s urging inflicts a concrete, particularized institutional injury on the House. There is no doubt that such harm is “fairly traceable” to the lower court’s decision, which expressly held the law to be unconstitutional on its face. Nor can it be doubted that the harm will be redressed by a favorable decision from this Court.
But the institutional harm to the House’s core constitutional authority does not end there. The decision below, if not reversed, will permanently diminish the House’s legislative power by imposing a heightened standard of review for legislation that classifies on the basis of sexual orientation. Cf. Camreta, 131 S. Ct. at 2029 (public officials have standing to challenge qualified immunity “judgment [that] may have prospective effect on the parties”). This new limit on the House’s lawmaking powers

14
follows from the Second Circuit’s decision, and reversal by this Court would directly remedy that harm. See, e.g., Jones v. Coughlin, 45 F.3d 677, 679 (2d Cir. 1995) (“A decision of a panel of this Court is binding unless and until it is overruled by the Court en banc or by the Supreme Court.”).
The House’s interests in this case are concrete and particularized, not generalized grievances. The House has a distinct, concrete institutional interest in ensuring that its legislative acts have substantive effect and are not “completely nullified” by a judicial decision procured with executive branch acquiescence. The damage suffered by virtue of a permanent judicial invalidation of duly-enacted legislation is unique to the House. It is not, as amica suggests (at 8), “widely shared by the people at large.” The legislative power is constitutionally vested in the House and Senate. See U.S. Const. art. I, § 1. And because legislation often has the effect of limiting the autonomy of its subjects, the House’s interest in the scope of its legislative powers is not widely shared by the populace at large. That is particularly true of legislation alleged to run afoul of equal protection principles. “[T]he drawing of lines that create distinctions is peculiarly a legislative task and an unavoidable one.” Schweiker v. Wilson, 450 U.S. 221, 234–35 (1981) (quoting Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 314 (1976)).
Thus, the lower court’s nullification of DOMA Section 3 and its application of heightened scrutiny “peculiarly” affect the House’s legislative conduct and prerogatives. Judicial invalidation of the law at the behest of the executive permanently undoes the

15
House’s constitutionally mandated role in the passage of a law, and heightened scrutiny will constrict the scope of the House’s ability to legislate with practical effect going forward.4 The House must have standing to defend these interests when the executive ceases to defend a duly-enacted statute.
All of this is second nature when it comes to the executive’s standing to intervene to defend the constitutionality of Acts of Congress in cases in which the federal government is not otherwise a party. Here, the executive branch was the named defendant because of its role as the withholder of the claimed refund. But even in cases involving disputes between private parties concerning federal statutes for which the executive has no enforcement role, no one doubts that the executive has standing to intervene to defend the statutes with full party status and to appeal an adverse decision. Thus, for example, when a litigant challenges the constitutionality of a federal statute like 28 U.S.C. § 1637(d), which implicates the filing deadlines for private party cases in state court and implicates no direct enforcement role for the federal executive, it is commonplace for the executive to intervene as a party. See, e.g., Jinks v. Richland Cnty., S.C., 538 U.S. 456, 457 (2003); Raygor v.
4 This Court’s decisions, of course, do not formally constrain the House and Senate from proposing new legislation, but judicial decisions do determine the practical effect of legislative enactments, and that practical reality is surely relevant to whether the House suffers harm sufficient for Article III purposes.

16
Regents of Univ. of Minn., 534 U.S. 533, 535 (2002).5 At least in the unusual circumstances in which the executive refuses to shoulder its traditional responsibility to defend the constitutionality of federal legislation, there is no reason the House cannot play the same role to prevent an injury to its institutional interests and to ensure that an Act of Congress receives an adequate defense.
2. This Court has “long held” that the House has standing to defend a duly enacted statute when the executive “agrees with plaintiffs that the statute is … unconstitutional.” Chadha, 462 U.S. at 940.6 In Chadha, each chamber of Congress separately
5 Because a statute cannot confer standing where it does not otherwise exist, see Lujan, 504 U.S. at 576–77, it is irrelevant to the Article III analysis that the Department has statutory authority to defend legislation, see 28 U.S.C. § 2403(a)
6 At times, congressional interests have been represented by amici curiae. See, e.g., United States v. Lovett, 328 U.S. 303, 304 (1946); Cheng Fan Kwok v. INS, 392 U.S. 206, 210 n.9 (1968); Myers v. United States, 272 U.S. 52, 176 (1926). The executive branch likewise has participated as an amicus in private party cases in which an Act of Congress has been called into question. See, e.g., Br. for United States as Amicus Curiae Supporting Pet’r 2, Stern v. Marshall, 131 S. Ct. 2594 (2012) (No. 10-179), 2010 WL 4717271 (“The United States also has a substantial interest in this case because … the court’s analysis calls into question the scope of Congress’s constitutional authority ….”). In neither circumstance, however, is the fact of amicus participation in some cases inconsistent with the House’s Article III standing here. That much certainly is clear from Chadha, where the two houses presented briefs as amici before the court of appeals panel, then separately intervened and participated as full parties before the en banc Ninth Circuit and in this Court. See 462 U.S. at 930 n.5.

17
intervened and participated as a party defending the constitutionality of the statute in question. See id. at 930 n.5. The court of appeals granted their intervention, and this Court agreed that the two chambers were “proper parties,” id. (quotation marks omitted), to satisfy this Court’s statutory and Article III jurisdiction, see id. at 931 n.6 (holding that an Article III “controversy clearly exists … because of the presence of the two Houses of Congress as adverse parties”); id. at 939 (“Congress is … a proper party to defend the constitutionality of [the statute].”). Both houses similarly participated as parties to defend the constitutionality of legislative actions in cases like Burke v. Barnes, 479 U.S. 361 (1987) (House and Senate participated separately), and Bowsher v. Synar, 478 U.S. 714 (1986) (House and Senate participated separately).7
More broadly, this Court has consistently recognized the standing of legislative actors to prevent nullification of their acts. In Coleman v.
7 The lower courts also have recognized each house’s standing to defend a statute’s constitutionality when the executive has declined to do so. See, e.g., Adolph Coors Co. v. Brady, 944 F.2d 1543, 1546 (10th Cir. 1991); Lear Siegler, Inc., Energy Prods. Div. v. Lehman, 893 F.2d 205, 206 (9th Cir. 1989); Ameron, Inc. v. U.S. Army Corps of Eng’rs, 787 F.2d 875, 888 & n.8 (3d Cir. 1986) (“There is no dispute that the Congressional intervenors were proper parties for the purpose of supporting the constitutionality of the [statute].”). In at least two lower court cases, involving disputes between private parties, the House and Senate were allowed to intervene as parties to defend the constitutionality of a statute after the Department intervened to attack the law. See In re Benny, 812 F.2d 1133, 1135 (9th Cir. 1987); In re Koerner, 800 F.2d 1358, 1360 (5th Cir. 1986).

18
Miller, this Court addressed a challenge brought by Kansas state legislators to prevent formal ratification of the proposed Child Labor Amendment, on the grounds that the Lieutenant Governor’s tie-breaking vote in favor of the amendment was unconstitutional. See 307 U.S. at 438. The plaintiffs included twenty state legislators whose votes would have been sufficient to defeat the amendment, absent the Lieutenant Governor’s vote. This Court held that the legislators had standing because their “votes against ratification have been overridden and virtually held for naught although if they are right in their contentions their votes would have been sufficient to defeat ratification.” Id.
More recently, in Karcher v. May, 484 U.S. 72, 80–81 (1987); id. at 84 (White, J., concurring in the judgment), and Arizonans for Official English v. Arizona, 520 U.S. 43, 65 (1997), this Court has reaffirmed that legislative bodies have standing to defend against, and appeal from, judicial invalidation of their legislative acts.8 Here, the House possesses a similarly “plain, direct and adequate interest in
8 In Karcher and Arizonans for Official English, this Court seemed to suggest that a state legislative body is a proper party when state law authorizes it to defend. See 484 U.S. at 82; 520 U.S. at 65. But this requirement (if it exists) can be only a prudential check on legislative participation because state law authorization to litigate cannot itself create the requisite elements of Article III standing. See, e.g., Lujan, 504 U.S. at 576–77. Thus, Karcher and Arizonans for Official English necessarily rest on the premises that a legislative body suffers a cognizable injury when its legislative acts are nullified by judicial invalidation and that statutory authorization overcomes any prudential obstacle.

19
maintaining the effectiveness of [its] votes.” Coleman, 307 U.S. at 438. The decision below has “overridden and virtually held for naught” the House’s passage of DOMA Section 3, but if the House’s constitutional defense is correct, then its legislative actions will be preserved. Id.
Although amica invokes Raines v. Byrd, 521 U.S. 811 (1997), that case is inapposite for multiple reasons. As an initial matter, here, the House itself (through its Bipartisan Legal Advisory Group) has intervened to defend its institutional interests, while Raines concerned the claims of only a handful of individual plaintiff legislators who could not, and did not purport to, speak for the House or Senate as an institution. See id. at 814. Nor were the legislators in Raines defending against nullification of legislative action, as were the legislators in Coleman and the House here. Id. at 823–24. Rather, “[t]hey simply lost th[e] vote” over the legislation they attacked. Id. at 824. Here the situation is just the opposite: The House seeks to defend legislation actually enacted; i.e., the vote was won, not lost. And unlike the circumstances in Raines—where “a majority of Senators and Congressmen c[ould] vote to repeal the Act, or to exempt a given appropriations bill (or a given provision in an appropriations bill) from the Act,” id.—the House cannot remedy the harms that will result from judicial invalidation of DOMA or the imposition of heightened scrutiny. See City of Boerne v. Flores, 521 U.S. 507, 536 (1997) (“[I]t must be understood that in later cases and controversies the Court will treat its precedents with the respect due them under settled principles, including stare decisis, and contrary expectations

20
must be disappointed.”). Finally, there is a fundamental difference between individual legislators as plaintiffs enlisting the courts to invalidate a law passed by a majority of their colleagues and the House intervening as an institution to defend a statute against attacks from private parties and a co-equal branch of government. See Chadha, 462 U.S. at 940.
B. Amica’s Arguments That the House Lacks Standing Are Mistaken.
1. Amica is wrong to suggest that standing is limited to the defense of some small set of “distinct, statutorily created powers of the Houses of Congress,” or “distinct legislative prerogative[s].” That putative distinction fails on its own terms. In this case, the House has intervened to defend its legislative authority to pass DOMA. And the House’s lawmaking authority is a “distinct legislative prerogative.” Indeed, it is the House’s core legislative prerogative under Article I. It would be more than passing strange for the House to possess standing to defend the constitutionality of ancillary legislative powers, like its powers to investigate, see Buckley v. Valeo, 424 U.S. 1, 137 (1976), and subpoena documents, see McGrain v. Daugherty, 273 U.S. 135, 175 (1927), or to defend extra-constitutional assertions of power, like the one-house legislative veto, see Chadha, 462 U.S. 919, and congressionallycontrolled agencies, see Bowsher, 478 U.S. 714, but lack standing to defend its core legislative power against nullification. Indeed, Chadha categorically held that the House and Senate are proper parties “to defend the validity of a statute when” the executive

21
“agrees with plaintiffs that the statute is … unconstitutional.” 462 U.S. at 940. Nothing in the Court’s reasoning depended on the type of statute being defended.
2. Amica is also wrong that the two houses of Congress are required to intervene and litigate together. Chadha confirms this. See 462 U.S. at 919 n.* (noting separate appeals by House and Senate); id. at 922 (noting separate counsel for House and Senate); id. at 930 n.5 (noting separate interventions by House and Senate). This Court never suggested that either house’s participation was in any way dependent on the participation of the other. See also Burke, 479 U.S. at 362 (House and Senate participated separately).9
Amica’s proposed rule would make no sense. Each body is an independent, constitutionallynecessary actor in the legislative process. See U.S. Const. art. I, § 7, cl. 2; Note, Executive Discretion and the Congressional Defense of Statutes, 92 Yale L.J. 970, 983 n.43 (1983) (“Defense of a statute by one house of Congress (as opposed to a defense undertaken by Congress as a whole) is consistent with the constitutionally independent roles of each house with respect to the other.”). Any challenge to a
9 To suggest otherwise, amica quotes selectively (at 15–16) from portions of Chadha referring to the two houses collectively as “Congress.” But this Court’s convenient shorthand did not change the fact that the two chambers acted independently of one another at all times. Likewise, amica is wrong to imply (at 16) that this Court’s brief description of Chadha in Arizonans for Official English somehow changed the facts, reasoning, or scope of the earlier opinion.

22
federal statute is thus necessarily a challenge to the actions of each chamber, and the harm resulting from judicial invalidation of a duly-enacted statute falls independently on each chamber.10
Moreover, our basic constitutional arrangement does not allow either house acting alone to nullify a law previously enacted with the concurrence of both chambers. Neither house of Congress can repeal a statute on its own. See U.S. Const. art. I, § 7, cl. 2; Chadha, 462 U.S. at 954 (“Amendment and repeal of statutes, no less than enactment, must conform with Art. I” of the Constitution.). But allowing one house to prohibit the other from defending a statute would have the same practical effect by empowering the non-consenting house to facilitate the permanent nullification of a duly-enacted statute. See SixtySeventh Minn. State Senate v. Beens, 406 U.S. 187, 194 (1972) (“A group of senators … had the right to intervene. The concurrence of the house was not necessary as it would have been to enact legislation.”).11
10 Amica’s suggestion that Article I’s bicameral lawmaking requirements demand the House and Senate to act in concert when intervening to defend a statute is wrong on its own terms. Article I also requires the President to approve legislation passed by Congress, but the President quite obviously did not assent to the House and Senate’s shared position in Chadha, just as he consciously rejects the House’s position in this case.
11 The House and Senate previously considered, but consciously rejected, the creation of a joint litigation authority. See 123 Cong. Rec. 21007, 21010 (1977) (proposed “Congressional Legal Counsel”); H. Rep. No. 95-1756, at 80 (1978) (explaining House’s decision against joint Congressional Legal Counsel).

23
3. Amica is also wrong that the House’s participation in this case encroaches on executive power. The House is not asking this Court to compel the executive to enforce DOMA Section 3. Indeed, the whole reason the House is here is the executive’s puzzling decision to enforce a law that its chief law enforcement officer believes is unconstitutional and will not defend.12
To be sure, in a typical case, the Department takes the lead in defending Acts of Congress, sometimes even those it does not directly or indirectly enforce. In such cases, there may be prudential reasons to limit congressional participation and, in many instances, the issue does not even arise because Congress assumes that the executive will protect Congress’ interests. The House and Senate certainly have not proven eager to intervene when the executive does its job and defends challenged statutes. The statutory provisions addressing constitutional challenges to statutes reflect this preference. While Congress has required the Department to be notified by courts and private litigants whenever the constitutionality of an Act of
12 If anything raises separation of powers concerns, it is the executive’s attempt to nullify DOMA outside the constitutionally prescribed procedures for repeal. In contrast to the constitutionally proper legislative repeal of the “don’t ask, don’t tell” policy, see Don’t Ask Don’t Tell Repeal Act of 2010, Pub. L. No. 111-321, 124 Stat. 3515, 10 U.S.C. § 654 note, the Administration seeks to invalidate DOMA through Article III— by enforcing the law, while affirmatively attacking it in court, and asking each level of the federal judiciary to declare it unconstitutional in a manner that will constrain future legislative action.

24

Congress has been called into question, 28 U.S.C.

§ 2403(a), it has required notification of both houses

(independently) only when the Attorney General

declines

to

defend,

28

U.S.C.

§ 530D(a)(1)(B)(ii).13 However, in the relatively rare

case when the executive refuses to defend, this

Court’s decisions make clear that each house of

Congress has standing to defend the effectiveness of

its votes. And in the three decades since Chadha,

intervention motions by the House and Senate have

hardly overwhelmed the lower courts. See infra.

4. Finally, amica is wrong that the Bipartisan Legal Advisory Group does not speak for the House. The Group is fully authorized to speak for, and does in fact speak for, the House in this litigation.

The Group has articulated the institutional interests of the House in litigation matters since the early 1980s (although the precise formulation of the Group’s name has changed somewhat over time). After the conclusion of the Chadha case in 1983, where the House by privileged resolution specifically authorized the Speaker to participate as intervenor on behalf of the House, see H. Res. 49, 97th Cong. (1981) (voice vote), the House leadership, on a bipartisan basis, created a five-member leadership group (the Speaker, majority leader, majority whip, minority leader, and minority whip) to conduct litigation on behalf of the House without the need for full House authorization. Over the next decade, the

13 One obvious purpose of this statute is to permit the House and/or Senate to intervene in litigation to defend challenged statutes when the executive refuses to do so.

25
Group intervened on behalf of the House in at least twelve cases.14 During that same period of time, the Group appeared as amicus curiae in a number of other cases. See 159 Cong. Rec. H13 (daily ed. Jan. 3, 2013) (collecting cases). In all these cases, the Group litigated on behalf of the House without any authorizing vote by the full House.
In 1993, the House amended its rules to formally refer to the Bipartisan Legal Advisory Group in connection with its function of providing direction to the Office of General Counsel, which is charged with providing legal assistance and representation to the House. See, e.g., Rule I.11, Rules of the House of Representatives 103d Cong. (1993), App.9a.15 Since then, the Group has continued to litigate on behalf of the House without any authorizing votes by the full House, mostly as amicus, see 159 Cong. Rec. H13 (daily ed. Jan. 3, 2013) (collecting cases), but also as intervenor in the DOMA cases.
14 See Burke, 479 U.S. at 362; Bowsher, 478 U.S. 714; Adolph Coors, 944 F.2d at 1545; Lear Siegler, 893 F.2d 205; In re Benny, 812 F.2d at 1135; In re Koerner, 800 F.2d at 1359; Ameron, 787 F.2d at 877; North v. Walsh, 656 F. Supp. 414, 415 n.1 (D.D.C. 1987); Am. Fed’n of Gov’t Emps. v. United States, 634 F. Supp. 336, 337 (D.D.C. 1986); In re Prod. Steel, Inc., 48 B.R. 841, 842 (M.D. Tenn. 1985); In re Moody, 46 B.R. 231, 232 (M.D.N.C. 1985); In re Tom Carter Enters., Inc., 44 B.R. 605 (C.D. Cal. 1984).
15 The House has readopted this rule in substantially the same form in every succeeding Congress. See, e.g., Rule II.8, Rules of the House of Representatives, 112th Cong. (2011), App.10a; Rule II.8, Rules of the House of Representatives, 113th Cong. (2013), App.11a.

26
The recently-adopted rules package for the 113th Congress confirms the Group’s long-standing authority sanctioned by House precedent: “[T]he Bipartisan Legal Advisory Group continues to speak for, and articulate the institutional position of, the House in all litigation matters in which it appears, including in Windsor v. United States.” H. Res. 5, 113th Cong. § 4(a)(1)(B) (2013), App.6a (emphasis added). It is of no moment that House Resolution 5 was adopted after the beginning of this suit. The Resolution affirms that the Group “continues” to represent the House in litigation, including in this case. And the word “continues” confirms that the full House understands its rules to authorize the Bipartisan Legal Advisory Group to speak for the House at every stage of this case. Indeed, the House’s Minority Leader and Minority Whip, while they disagree with the House’s position on the merits of DOMA Section 3’s constitutionality, expressly agree that the Bipartisan Legal Advisory Group has Article III standing in this case to articulate that position on behalf of the House. See supra n.*. In any event, the House’s Article III standing turns on the impairment of its interests occasioned by the executive’s decision to join Ms. Windsor in seeking the permanent and complete nullification of DOMA. Whether and when the House confirmed the Group’s authority to litigate on behalf of the House to vindicate those interests has no impact on the Article III question here.
All of this is further buttressed by the fact that the House has not voted to countermand the Group’s intervention—or any litigation decision made after intervention—in this or any other DOMA case. The

27
House has an effective procedural mechanism, which has existed in the House Rules since 1880, that enables it to countermand any such decision. See Rule IX, Rules of the House of Representatives, 113th Cong. (2013) (Members may bring to floor of House for vote “questions of privilege”), App.12a–13a; id. Rule IX.2(a)(1) (question of privilege, when brought by Majority or Minority Leader, “shall have precedence of all other questions”); id. (question of privilege brought by other Members “shall have precedence of all other questions … within two legislative days after the day on which the proponent announces to the House an intention to offer the resolution and the form of the resolution”). And the House knows how to use Rule IX to force a vote on litigation decisions made by the Group, if the House so chooses.16 But it has not so chosen in this or any other DOMA case.
16 In 1990, the House Minority Leader brought to the floor a resolution seeking the withdrawal of a brief the Group had filed in United States v. Eichman, Nos. 89-1433, 89-1434 (U.S.), “pending a full and proper review by the Bipartisan Legal Advisory Group.” H. Res. 362, 101st Cong. (1990); 136 Cong. Rec. 4997 (1990). The Chair ruled that this resolution raised a question of privilege under Rule IX, see 136 Cong. Rec. at 4997, and thereafter the full House adopted the resolution. Id. at 5005-06. See also H. Res. 268, 102d Cong. (1991); 137 Cong. Rec. 29968, 30526-27 (1991) (treating as privileged resolution concerning brief prepared by House Counsel on behalf of Member and filed with Florida Supreme Court; resolution tabled).

28
Finally and significantly, the adoption, interpretation, and application of the House’s internal rules are constitutionally committed to the House alone. “Each House may determine the Rules of its Proceedings.” U.S. Const. art. I, § 5, cl. 2. And rules adopted pursuant to the Rulemaking Clause, within constitutional limits, are “absolute and beyond the challenge of any other body or tribunal.” United States v. Ballin, 144 U.S. 1, 5 (1892). The judiciary is not empowered to second-guess the House’s interpretation and application of its own rules, including the rules by which the Bipartisan Legal Advisory Group has intervened and litigated on behalf of the House in this and many other cases. Just as the courts will not look behind an enrolled bill to determine whether its text is precisely the law assented to by both houses of Congress and signed by the President, “[t]he respect due to coequal and independent departments requires the judicial department to act upon th[e] assurance” that each chamber of Congress properly interprets its own rules. Marshall Field & Co. v. Clark, 143 U.S. 649, 672 (1892); see also Nixon v. United States, 506 U.S. 224, 237–38 (1993) (upholding Senate’s interpretation of Impeachment Clause permitting holding of trials by committee); Zivotofsky v. Clinton, 132 S. Ct. 1421, 1433 (2012) (Sotomayor, J., concurring in part and in judgment) (“Because of the respect due to a coequal and independent department …, courts properly resist calls to question the good faith with which another branch attests to the authenticity of its internal acts.”); United States v. Munoz-Flores, 495 U.S. 385, 410 (1990) (Scalia, J., concurring in judgment) (“Mutual regard between the

29
coordinate branches, and the interest of certainty, both demand that official representations regarding … matters of internal process be accepted at face value.”).17
17 Amica is wrong to suggest (at 17 n.6) that the Court may disregard the House’s interpretation and application of its own rules here because “the rights of those outside” the House “are at stake.” The only “right” that turns on the House’s internal rules is the Group’s authority to speak for the House in this litigation. The House rules, and the House’s interpretation of those rules, have no bearing on Ms. Windsor or the executive. Thus, this case is not remotely analogous to United States v. Smith, where the Senate’s interpretation of its internal rule would have deprived an executive officer of his commission. See 286 U.S. 6, 30 (1932).
Similarly, Reed v. County Comm’rs of Del. Co., Pa., 277 U.S. 376 (1928), does not support amica’s contentions (at 17) that the Group lacks “authority to intervene as a party,” and that courts should disregard the House’s interpretation of its own rules and practices. The issue in Reed was whether the federal courts had jurisdiction to hear a subpoena enforcement case brought by a Senate committee under a statute that provided “that the District Courts shall have original jurisdiction ‘of all suits of a civil nature … brought by the United States, or by any officer thereof authorized by law to sue,’” and the Senate resolution that created the committee authorized it to “do such other acts as may be necessary in the matter of said investigation.” 277 U.S. at 386–87. The Court held that the Senate resolution creating the committee was insufficiently explicit to render the committee “authorized by law to sue” within the meaning of the statute. Id. at 389. This case is distinguishable because the issue here is not whether some House action satisfies statutory language that limits the Court’s jurisdiction, but rather whether the House has Article III standing. In resolving that issue, the Court is bound by the House’s determination that the Group speaks for the House and is authorized to intervene and defend DOMA.

30
Given the House’s plenary authority to interpret its own rules; its unbroken practice over nearly thirty years of articulating its institutional position in litigation matters through a five-member leadership group; and the full House’s recent, explicit confirmation that the Bipartisan Legal Advisory Group “continues to speak for, and articulate the institutional position of, the House in all litigation matters in which it appears, including in Windsor v. United States,” H. Res. 5, 113th Cong. § 4(a)(1)(B), there is no sound basis for this Court to look behind the Group’s intervention in this case.
* * *
Both practical considerations and the bedrock Article III requirement of adverseness strongly support the House’s standing here. This Court’s “right to declare an act of Congress unconstitutional, c[an] only be exercised when a proper case between opposing parties [i]s submitted for judicial determination.” Muskrat v. United States, 219 U.S. 346, 357 (1911) (discussing Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)). But Ms. Windsor and the executive both argue that DOMA is unconstitutional and that Ms. Windsor should receive a refund. It is the House’s intervention that ensures the adversarial presentation that Article III demands. As already demonstrated, the House is no interloper; it has a concrete interest in not having its legislation permanently nullified. Thus, the House is not only a proper litigant, but a constitutionally necessary one.
The alternative suggested by the executive has little to recommend it. In the executive’s view, when

31
it agrees with a private party that an Act of Congress is unconstitutional, the House has no ability to intervene and file dispositive motions, to take depositions or obtain other discovery, or to take appeals. This is not a problem, the executive maintains, because it stands ready to file the necessary motions on the House’s behalf. In the district court, the executive even went so far as to file a “motion to dismiss” which made clear that the executive opposed the relief it nominally sought. That makes no sense. Our Article III judicial system, which values adversary presentation, should not countenance such Alice-in-Wonderland filings. And a constitutional system that respects co-equal and coordinate branches of government should not require the spectacle of one branch litigating for another like a ventriloquist.
In addition to flunking the test of commonsense, the executive’s position, if accepted, would significantly skew the separation of powers in favor of the executive and away from Congress and the courts. Implicit in the executive’s insistence that only it can file dispositive motions and appeals is the notion that its willingness to do so is necessary to facilitate this Court’s review. That, of course, would allow the executive, by withholding its favor, to control which cases the courts review.18 But neither
18 Indeed, that is precisely what the executive has done. In some DOMA cases, like this one, the Department has pursued expedited appeals. In others, particularly when district courts applied existing precedent to uphold DOMA, the Department delayed review and actively sought to prevent the appellate courts from reviewing DOMA. See, e.g., Torres-Barragan v. Holder, Nos. 08-73745 & 09-71226 (9th Cir. 2010) (Department

32
this Court’s ability to review constitutional issues nor the House’s ability to prevent permanent nullification of its legislation should depend on acts of executive grace—or the executive’s strategic decision making.
II. The House’s Participation As A Party Ensures This Court’s Article III Jurisdiction, But The Executive’s Lack Of Appellate Standing Requires Dismissal Of Its Petition.
A. If the House Lacks Standing, This Court Lacks Jurisdiction to Decide This Case.
It is elementary that Article III of the Constitution permits the judiciary to resolve only “Cases” or “Controversies.” An essential element of that constitutional limitation is that “there must be an actual controversy, and adverse interests.” Lord v. Veazie, 49 U.S. (8 How.) 251, 255 (1850). Without truly adverse parties, “a court may not safely proceed to judgment, especially when it assumes the grave responsibility of passing upon the constitutional validity of legislative action.” United States v. Johnson, 319 U.S. 302, 304 (1943) (per curiam). And “there is no Art. III case or controversy when the parties desire ‘precisely the same result.’” GTE Sylvania v. Consumers Union of the U.S., 445 U.S. 375, 383 (1980) (quoting Moore v. CharlotteMecklenberg Bd. of Educ., 402 U.S. 47, 48 (1971) (per curiam)).
sought remand of case to Board of Immigration Appeals, urged Board to close case, and urged Ninth Circuit to dismiss appeal).

33
If this Court finds that the House lacks standing, then there is no Article III case or controversy to resolve because there is no genuine adversity between Ms. Windsor and the executive. Both parties agree that DOMA Section 3 is unconstitutional and Ms. Windsor should receive a refund. Thus, like the parties in Moore, Ms. Windsor and the executive requested “precisely the same result” in the proceedings below and do so again now before this Court. See 402 U.S. at 47–48 (“At the hearing both parties argued to the three-judge court that the anti-busing law was constitutional and urged that the order of the District Court adopting the Finger plan should be set aside.”). And both received precisely the results they requested. When “confronted with th[is] anomaly,” Moore expressly held that there was “no case or controversy within the meaning of Art. III of the Constitution” and dismissed the appeal. Id.
Similarly, in Princeton University v. Schmid, 455 U.S. 100 (1982) (per curiam), where the State of New Jersey encouraged this Court to decide a constitutional question, but declined to take a position adverse to the defendant it successfully prosecuted in the courts below, the Court dismissed the case, reiterating that it “do[es] not sit to decide hypothetical issues or to give advisory opinions about issues as to which there are not adverse parties before us.” Id. at 102. If the House is denied standing, the same result must occur here.
Chadha does not assist the executive, especially given its opposition to the House’s standing. In Chadha, the House and Senate did have standing

34
and filed their own petitions. And the Court expressly relied on those facts to assure itself of Article III jurisdiction. See 462 U.S. at 931 n.6, 939. Thus, Chadha did not confront the question of its Article III jurisdiction in the absence of a proper legislative defendant. The Court’s “case or controversy” analysis relied chiefly upon the House and Senate’s presence in the case, except to the extent that a genuine controversy existed between Chadha and the executive before the Ninth Circuit’s decision invalidating the executive’s deportation order. See id. at 939–40. Once the court cancelled that order, the executive’s interests became squarely aligned with Chadha’s and the House and Senate immediately intervened as parties.
Without the House’s participation as the sole adverse party in this suit, this Court would be left issuing an advisory opinion on a novel question of constitutional law concerning a hotly contested matter of social policy. But Article III’s prohibition against advisory opinions is central. See, e.g., Hayburn’s Case, 2 U.S. (2 Dall.) 409, 410 n.* (1792). This Court has not hesitated to find itself without jurisdiction when it becomes “evident that there is neither more nor less in this procedure than an attempt to provide for a judicial determination, final in this court, of the constitutional validity of an act of Congress.” Muskrat, 219 U.S. at 361. And that is precisely what this litigation would be without the House’s participation. Both this Court and the Second Circuit lack judicial power to grant that request. Cf. Johnson, 319 U.S. at 305 (“Whenever in the course of litigation such a defect in the proceedings is brought to the court’s attention, it may

35
set aside any adjudication thus procured and dismiss the cause without entering judgment on the merits.”).
B. Because the Executive Branch Received Precisely the Result It Sought Below, It Lacks Appellate Standing.
The House, unlike amica and the executive, believes that its participation is both necessary and sufficient to satisfy Article III. But even assuming the House’s standing eliminates any Article III problem, the Department still lacks appellate standing to seek this Court’s review of a decision accepting the Department’s position in toto and ordering relief that it thinks is appropriate. Simply put, it prevailed completely below and had no business seeking review of that favorable decision.
This Court’s decisions make clear that the executive lacks appellate standing here. “Ordinarily, only a party aggrieved by a judgment or order of a district court may exercise the statutory right to appeal therefrom.” Deposit Guar. Nat’l Bank v. Roper, 445 U.S. 326, 333 (1980). And “[a] party who receives all that he has sought generally is not aggrieved by the judgment affording the relief and cannot appeal from it.” Id. (citing Pub. Serv. Comm’n v. Brashear Freight Lines, Inc., 306 U.S. 204 (1939); N.Y. Tel. Co. v. Maltbie, 291 U.S. 645 (1934); Corning v. Troy Iron & Nail Factory, 56 U.S. (15 How.) 451 (1853)). Though this rule does not derive from Article III, it is firmly rooted in “the statutes granting appellate jurisdiction and the historic practices of the appellate courts.” Roper, 445 U.S. at 333–34; see also Bunting v. Mellen, 541 U.S. 1019, 1023 (2004) (Scalia, J., dissenting from denial of

36
certiorari) (This Court’s “practice reflects a ‘settled refusal’ to entertain an appeal by a party on an issue as to which he prevailed.” (quoting R. Stern & E. Gressman, Supreme Court Practice 79 (8th ed. 2002))).
Moreover, the Court’s analysis of the executive’s appellate standing in Chadha focused entirely on statutory jurisdiction under 28 U.S.C. § 1252, a provision that is not relevant here (and in fact has been repealed). See 462 U.S. at 931 (painstakingly tying each sentence of analysis to § 1252—e.g., “aggrieved party for purposes of taking an appeal under § 1252”; “aggrieved party under § 1252” (emphases added)); see also id. at 931 n.6 (relying exclusively on the presence of the House and Senate to assure the Court of its own Article III jurisdiction). In short, this Court in Chadha held its usual prudential standing requirements displaced by the mandatory nature of § 1252 review: “It is apparent that Congress intended that this Court take notice of cases that meet the technical prerequisites of § 1252; in other cases where an Act of Congress is held unconstitutional by a federal court, review in this Court is available only by writ of certiorari.” Id. at 930–31. Here, the Court’s prudential standing jurisprudence applies with full force.
Plainly, the executive was a prevailing party below. It obtained the precise relief it believed was appropriate based on the precise theory (heightened scrutiny) it advocated. The executive can fare no better before this Court. While this Court’s affirmance would have a greater precedential impact, the executive cannot ground its appellate standing on

37
a desire for an opinion with the identical effect on this case and controversy, but a broader precedential scope for other cases. See, e.g., Muskrat, 219 U.S. at 361. The executive may not base its appellate standing on the desire to expand the geographic reach of its victory.19
* * *
If the House lacks standing to defend the constitutionality of an Act of Congress when the executive declines to do so, all manner of jurisdictional conundrums follow. Without the participation of the House and the adverseness it provides, it is not clear why there was a case or controversy once the executive abandoned DOMA’s defense. Both Ms. Windsor and the executive—the plaintiff and nominal defendant—agreed that DOMA was unconstitutional and that Ms. Windsor was entitled to a refund. Without the House, it is unclear who could move to dismiss the complaint, depose a witness, or oppose summary judgment. And without the House, it is even less clear why the executive would have appellate standing to seek not reversal, but affirmance of a judicial decision that accepted its arguments and ordered the relief it requested.
19 This argument equally suggests that the executive lacked appellate standing to file its own appeal in the Second Circuit, but that issue is of no moment because the House filed its own appeal which independently justified the Second Circuit’s appellate jurisdiction. In similar fashion, recognition that the Department lacks appellate standing to file the petition in No. 12-307 need not delay this Court’s resolution of DOMA’s constitutionality. This Court can grant the House’s petition in No. 12-785 and issue its merits decision in that case without the need for further briefing and argument.

38
Recognition of the House’s standing solves these conundrums and respects the separation of powers. With the House, there was a clear case and controversy. With the House, there was adverseness and no doubt that the House was the proper party to move to dismiss, take depositions, and oppose summary judgment. And with the House, it is clear which party should appeal (i.e., seek reversal of) a decision that rejects the House’s arguments. In short, without the House, it is hard to understand this case as anything other than an elaborate effort to procure an advisory opinion from this Court. With the House, there is a case or controversy on a constitutional issue of the greatest importance.
CONCLUSION
For the foregoing reasons, this Court should recognize that the House of Representatives, acting through its Bipartisan Legal Advisory Group, has Article III standing to defend the constitutionality of DOMA Section 3, and that the executive lacked appellate standing to file the petition in No. 12-307. This Court should dismiss the petition in No. 12-307, grant the House’s petition in No. 12-785, and definitively resolve the constitutionality of DOMA Section 3 without the need for re-briefing or reargument.

39

Respectfully submitted,

PAUL D. CLEMENT Counsel of Record
H. CHRISTOPHER BARTOLOMUCCI NICHOLAS J. NELSON MICHAEL H. MCGINLEY BANCROFT PLLC 1919 M Street, N.W., Suite 470 Washington, D.C. 20036 (202) 234-0090 pclement@bancroftpllc.com

KERRY W. KIRCHER General Counsel
WILLIAM PITTARD Deputy General Counsel
CHRISTINE DAVENPORT Senior Assistant Counsel
TODD B. TATELMAN MARY BETH WALKER ELENI M. ROUMEL
Assistant Counsels OFFICE OF GENERAL COUNSEL UNITED STATES HOUSE OF REPRESENTATIVES 219 Cannon House Office Bldg. Washington, D.C. 20515 (202) 225-9700

February 22, 2013

Counsel for Respondent The Bipartisan Legal Advisory Group of the United States House of Representatives

APPENDIX

i
TABLE OF APPENDICES Appendix A
Relevant Constitutional Provisions U.S. Const. art. I, § 5, cl. 2.......................... 1a U.S. Const. art. I, § 7, cl. 2.......................... 2a U.S. Const. art. II, § 3 ................................. 3a U.S. Const. art. III, § 2, cl. 1 ....................... 4a
Appendix B House Resolution 5, 113th Cong. § 4(a) (2013) .................................. 5a
Appendix C Rules of the House of Representatives, Rule I.11, 103d Cong. (1993) ............................. 9a Rules of the House of Representatives, Rule II.8, 112th Cong. (2011) .......................... 10a Rules of the House of Representatives, Rule II.8, 113th Cong. (2013) .......................... 11a Rules of the House of Representatives, Rule IX, 113th Cong. (2013)............................ 12a

1a
Appendix A
Relevant Constitutional Provisions U.S. Const. art. I, § 5, cl. 2
Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

2a
U.S. Const. art. I, § 7, cl. 2
Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States: If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.

3a
U.S. Const. art. II, § 3
He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

4a
U.S. Const. art. III, § 2, cl. 1
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State,—between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

5a
Appendix B
House Resolution 5, 113th Cong. § 4(a) (2013)
SEC. 4. COMMITTEES, COMMISSIONS, AND HOUSE OFFICES.
(a) LITIGATION MATTERS.—
(1) CONTINUING AUTHORITY FOR THE BIPARTISAN LEGAL ADVISORY GROUP.—
(A) The House authorizes the Bipartisan Legal Advisory Group of the One Hundred Thirteenth Congress—
(i) to act as successor in interest to the Bipartisan Legal Advisory Group of the One Hundred Twelfth Congress with respect to civil actions in which it intervened in the One Hundred Twelfth Congress to defend the constitutionality of section 3 of the Defense of Marriage Act (1 U.S.C. 7) or related provisions of titles 10, 31, and 38, United States Code, including in the case of Windsor v. United States, 833 F. Supp.2d 394 (S.D.N.Y. June 6, 2012), aff’d, 699 F.3d 169 (2d Cir. Oct. 18, 2012), cert. granted, No. 12–307 (Dec. 7, 2012), cert. pending No. 12–63 (July 16, 2012) and 12–785 (Dec. 28, 2012);
(ii) to take such steps as may be appropriate to ensure continuation of such civil actions; and

6a
(iii) to intervene in other cases that involve a challenge to the constitutionality of section 3 of the Defense of Marriage Act or related provisions of titles 10, 31, and 38, United States Code.
(B) Pursuant to clause 8 of rule II, the Bipartisan Legal Advisory Group continues to speak for, and articulate the institutional position of, the House in all litigation matters in which it appears, including in Windsor v. United States.
(2) CONTINUING AUTHORITIES FOR THE COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM AND THE OFFICE OF GENERAL COUNSEL.—
(A) The House authorizes—
(i) the Committee on Oversight and Government Reform of the One Hundred Thirteenth Congress to act as the successor in interest to the Committee on Oversight and Government Reform of the One Hundred Twelfth Congress with respect to the civil action Committee on Oversight and Government Reform, United States House of Representatives v. Eric H. Holder, Jr., in his official capacity as Attorney General of the United States, filed by the Committee on Oversight and Government Reform

7a
in the One Hundred Twelfth Congress pursuant to House Resolution 706; and
(ii) the chair of the Committee on Oversight and Government Reform (when elected), on behalf of the Committee on Oversight and Government Reform, and the Office of General Counsel to take such steps as may be appropriate to ensure continuation of such civil action, including amending the complaint as circumstances may warrant.
(B) The House authorizes the chair of the Committee on Oversight and Government Reform (when elected), on behalf of the Committee on Oversight and Government Reform and until such committee has adopted rules pursuant to clause 2(a) of rule XI, to issue subpoenas related to the investigation into the United States Department of Justice operation known as ‘‘Fast and Furious’’ and related matters.
(C) The House authorizes the chair of the Committee on Oversight and Government Reform (when elected), on behalf of the Committee on Oversight and Government Reform, and the Office of General Counsel to petition to join as a party to the civil action referenced in paragraph (1) any individual subpoenaed

8a
by the Committee on Oversight and Government Reform of the One Hundred Twelfth Congress as part of its investigation into the United States Department of Justice operation known as ‘‘Fast and Furious’’ and related matters who failed to comply with such subpoena, or any successor to such individual.
(D) The House authorizes the chair of the Committee on Oversight and Government Reform (when elected), on behalf of the Committee on Oversight and Government Reform, and the Office of General Counsel, at the authorization of the Speaker after consultation with the Bipartisan Legal Advisory Group, to initiate judicial proceedings concerning the enforcement of subpoenas issued to such individuals.

9a
Appendix C
Rules of the House of Representatives, Rule I.11, 103d Cong. (1993)
11. There is established in the House of Representatives an office to be known as the Office of General Counsel for the purpose of providing legal assistance and representation to the House. Legal assistance and representation shall be provided without regard to political affiliation. The Office of General Counsel shall function pursuant to the direction of the Speaker, who shall consult with a Bipartisan Legal Advisory Group, which shall include the majority and minority leaderships. The Speaker shall appoint and set the annual rate of pay for employees of the Office of General Counsel.

10a
Rules of the House of Representatives, Rule II.8, 112th Cong. (2011)
Office of General Counsel
8. There is established an Office of General Counsel for the purpose of providing legal assistance and representation to the House. Legal assistance and representation shall be provided without regard to political affiliation. The Office of General Counsel shall function pursuant to the direction of the Speaker, who shall consult with a Bipartisan Legal Advisory Group, which shall include the majority and minority leaderships. The Speaker shall appoint and set the annual rate of pay for employees of the Office of General Counsel.

11a
Rules of the House of Representatives, Rule II.8, 113th Cong. (2013)
Office of General Counsel
8. There is established an Office of General Counsel for the purpose of providing legal assistance and representation to the House. Legal assistance and representation shall be provided without regard to political affiliation. The Office of General Counsel shall function pursuant to the direction of the Speaker, who shall consult with a Bipartisan Legal Advisory Group, which shall include the majority and minority leaderships. The Speaker shall appoint and set the annual rate of pay for employees of the Office of General Counsel.

12a
Rules of the House of Representatives, Rule IX, 113th Cong. (2013)
1. Questions of privilege shall be, first, those affecting the rights of the House collectively, its safety, dignity, and the integrity of its proceedings; and second, those affecting the rights, reputation, and conduct of Members, Delegates, or the Resident Commissioner, individually, in their representative capacity only.
2. (a)(1) A resolution reported as a question of the privileges of the House, or offered from the floor by the Majority Leader or the Minority Leader as a question of the privileges of the House, or offered as privileged under clause 1, section 7, article I of the Constitution, shall have precedence of all other questions except motions to adjourn. A resolution offered from the floor by a Member, Delegate, or Resident Com missioner other than the Majority Leader or the Minority Leader as a question of the privileges of the House shall have precedence of all other questions except motions to adjourn only at a time or place, designated by the Speaker, in the legislative schedule within two legislative days after the day on which the proponent announces to the House an intention to offer the resolution and the form of the resolution. Oral announcement of the form of the resolution may be dispensed with by unanimous consent.
(2) The time allotted for debate on a resolution offered from the floor as a question of the privileges of the House shall be equally divided between (A) the proponent of the resolution, and

13a
(B) the Majority Leader, the Minority Leader, or a designee, as determined by the Speaker.
(b) A question of personal privilege shall have precedence of all other questions except motions to adjourn.

 
 No. 12-307 IN THE

UNITED STATES OF AMERICA, Petitioner,
v.
EDITH SCHLAIN WINDSOR, in her capacity as Executor of the estate of THEA CLARA SPYER, ET AL.,
Respondents.

On Writ of Certiorari to the United States Court of Appeals for the Second Circuit

BRIEF ON THE JURISDICTIONAL QUESTIONS FOR RESPONDENT EDITH SCHLAIN WINDSOR

Pamela S. Karlan Jeffrey L. Fisher STANFORD LAW SCHOOL SUPREME COURT LITIGATION CLINIC 559 Nathan Abbott Way Stanford, CA 94305
James D. Esseks Joshua A. Block Leslie Cooper Steven R. Shapiro AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street New York, NY 10004

Roberta A. Kaplan Counsel of Record
Walter Rieman Jaren Janghorbani Colin S. Kelly PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP 1285 Avenue of the Americas New York, NY 10019 (212) 373-3000 rkaplan@paulweiss.com
Arthur Eisenberg Mariko Hirose NEW YORK CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street New York, NY 10004

QUESTIONS PRESENTED
1. Whether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case.
2. Whether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing in this case.

ii
TABLE OF CONTENTS
QUESTIONS PRESENTED......................................... i TABLE OF AUTHORITIES ....................................... iv STATEMENT OF THE CASE..................................... 1
A. Factual And Legal Background ..................... 1 B. Proceedings Below .......................................... 6 SUMMARY OF ARGUMENT ................................... 10 ARGUMENT .............................................................. 12 I. Ms. Windsor Properly Invoked The Jurisdiction Of The Federal Courts.................... 12 II. The Executive Branch’s Agreement With The Court Below That DOMA Is Unconstitutional Does Not Deprive This Court Of Jurisdiction To Decide This Case. ........................................... 15 A. There Remains A Live Article III Case Or
Controversy Between Ms. Windsor And The United States......................................... 15 B. Section 1254(1) And Ordinary Rules Of Appellate Practice Confirm That This Court Has Jurisdiction. ................................ 25 C. Prudential And Practical Concerns Strongly Favor This Court Exercising Its Jurisdiction Here. ......................................... 31 III. Because Ms. Windsor Has A Cause Of Action Only Against The United States, Whether BLAG Has Independent Article III Standing Does Not Affect This Court’s Jurisdiction. ......... 36

iii
CONCLUSION .......................................................... 39
APPENDICES
Appendix A: Social Security Administration Notice Of Reconsideration .................................. 1a
Appendix B: Written Request For Expedited Appeal ............................................................... 10a
Appendix C: Social Security Administration Statement Of Claimant Or Other Person ............................................................... 12a

iv
TABLE OF AUTHORITIES
Cases
Already, LLC v. Nike, Inc., 133 S. Ct. 721 (2013) .............................................. 12
Am. Elec. Power Co. v. Connecticut, 131 S. Ct. 2527 (2011) ............................................ 32
Baker v. Carr, 369 U.S. 186 (1962) ................................................ 20
Barnes v. Kline, 759 F.2d 21 (D.C. Cir. 1984), vacated sub nom. Burke v. Barnes, 479 U.S. 361 (1987) ................... 36
Bender v. Williamsport Area Sch. Dist., 475 U.S. 534 (1986) ................................................ 32
Blodgett v. Holden, 275 U.S. 142 (1927) ................................................ 31
Camreta v. Greene, 131 S. Ct. 2020 (2011) .......................... 25, 32, 36, 37
Cardinal Chem. Co. v. Morton Int’l, Inc., 508 U.S. 83 (1993) .................................................. 21
Chadha v. INS, 634 F.2d 408 (9th Cir. 1980), aff’d, 462 U.S. 919 (1983) .............................. 17, 18, 19, 20
Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984) ............................................... 28
Deposit Guar. Nat’l Bank v. Roper, 445 U.S. 326 (1980) .......................................... 27, 29
Diamond v. Charles, 476 U.S. 54 (1986) ............................................ 37, 38
Dillard v. Chilton Cnty. Comm’n, 495 F.3d 1324 (11th Cir. 2007) .............................. 38

v
Farrar v. Hobby, 506 U.S. 103 (1992) ................................................ 30
FCC v. Action for Children’s Television, 503 U.S. 914 (1992) ................................................ 31
GTE Sylvania, Inc. v. Consumers Union, Inc. 445 U.S. 375 (1980) ............................................... 24
Heckler v. Mathews, 465 U.S. 728 (1984) ................................................ 14
Hein v. Freedom From Religion Found., Inc., 551 U.S. 587 (2007) ................................................ 13
Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010) ............................................ 31
Horne v. Flores, 557 U.S. 433 (2009) .................................... 15, 19, 29
In re Estate of Ranftle, 917 N.Y.S.2d 195 (App. Div. 1st Dep’t 2011) .......... 2
In re Metro. Ry. Receivership, 208 U.S. 90 (1908) .................................................. 19
INS v. Chadha, 462 U.S. 919 (1983) ........................................ passim
Jones v. Prince George’s Cnty., Md., 348 F.3d 1014 (D.C. Cir. 2003) .............................. 38
Lefemine v. Wideman, 133 S. Ct. 9 (2012) .................................................. 30
Lewis v. Cont’l Bank Corp., 494 U.S. 472 (1990) ................................................ 29
Lewis v. N.Y. State Dep’t of Civil Serv., 872 N.Y.S.2d 578 (App. Div. 3d Dep’t), aff’d sub nom. Godfrey v. Spano, 13 N.Y.3d 358 (2009) ........................................................................ 2

vi
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ................................................ 29
Martinez v. Cnty. of Monroe, 850 N.Y.S.2d 740 (App. Div. 4th Dep’t 2008).......... 2
Millbrook v. United States, No. 11-10362........................................................... 24
Miss. Univ. for Women v. Hogan, 458 U.S. 718 (1982) ................................................ 14
Moore v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 47 (1971) ............................................ 22, 23
Mukasey v. ACLU, 555 U.S. 1137 (2009) .............................................. 31
N.C. State Bd. of Ed. v. Swann, 402 U.S. 43 (1971) .................................................. 23
Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193 (2009) ................................................ 31
OPM v. Richmond, 496 U.S. 414 (1990) ................................................ 34
Princeton Univ. v. Schmid, 455 U.S. 100 (1982) ................................................ 22
Purnell v. City of Akron, 925 F.2d 941 (6th Cir. 1991) .................................. 38
Ruiz v. Estelle, 161 F.3d 814 (5th Cir. 1998) .................................. 38
San Juan Cnty., Utah v. United States, 503 F.3d 1163 (10th Cir. 2007) .............................. 38
Solid Waste Agency of N. Cook Cnty. v. U.S. Army Corps of Eng’rs, 101 F.3d 503 (7th Cir. 1996) .................................. 38
Sprint Commc’ns Co. v. APCC Servs., Inc., 554 U.S. 269 (2008) ................................................ 15

vii U.S. Postal Serv. v. Brennan,
579 F.2d 188 (2d Cir. 1978) ................................... 38 United States v. Alvarez,
132 S. Ct. 2537 (2012) ............................................ 31 United States v. Lovett,
328 U.S. 303 (1946) .................................... 16, 17, 18 United States v. Mendoza,
464 U.S. 154 (1984) ................................................ 32 United States v. Stevens,
130 S. Ct. 1577 (2010) ............................................ 31 Warth v. Seldin,
422 U.S. 490 (1975) ................................................ 29
Constitutional Provisions U.S. Const. art. I, § 9, cl. 7 ........................................ 34 U.S. Const. amend. V......................................... passim
Statutes 1 U.S.C. § 7......................................................... passim 26 U.S.C. § 2001(a) ...................................................... 3 26 U.S.C. § 2056........................................................... 3 26 U.S.C. § 6511(a) .................................................... 13 26 U.S.C. § 7422......................................... 6, 13, 14, 36 28 U.S.C. § 1252................................................... 26, 27 28 U.S.C. § 1254(1) .................................. 11, 25, 26, 27 28 U.S.C. § 1291......................................................... 30 28 U.S.C. § 1331........................................................... 6 28 U.S.C. § 1346(a)(1) ............................................ 6, 13 28 U.S.C. § 2414......................................................... 34

viii 31 U.S.C. § 1304......................................................... 34 31 U.S.C. § 1341......................................................... 34 31 U.S.C. § 1350......................................................... 34 42 U.S.C. § 402............................................................. 5
Legislative Materials 100 H.R. Rep. No. 100-660 (1988) ............................. 27
Regulations 11 C.F.R. § 113.2(a)(1) ............................................... 35 26 C.F.R. § 301.6402-2(e)........................................... 13
Other Authorities 14 U.S.L.W. 3379 (1946) ............................................ 18 Goldman, Brian P., Note, Should the Supreme
Court Stop Inviting Amici Curiae to Defend Abandoned Lower Court Decisions?, 63 Stan. L. Rev. 907 (2011).................................... 24 House Rule XXV (rev. Jan. 3, 2013), available at http://tinyurl.com/House-Rules113thCong ........... 34 Letter from George S. King, Counsel to the Retirement System, to Mark E. Daigneault (Oct. 4, 2004), available at http://tinyurl.com/NYCG04OP ................................ 2 Memorandum from David Nocenti to All Agency Counsel (May 14, 2008), available at http://tinyurl.com/NYGOV08. .................................. 2

ix
N.Y. Att’y Gen. Informal Op. 2004-1 (Mar. 3, 2004), available at http://tinyurl.com/NYAG04OP ................................ 2
Supreme Court of the United States, Instructions for Admission to the Bar, available at http://tinyurl.com/afb24er ................. 35
Thea Spyer, Edith Windsor, N.Y. Times, May 27, 2007 .................................................................... 2
Wright, Charles Alan & Mary Kay Kane, Federal Practice and Procedure Deskbook (2012) ...................................................................... 23

BRIEF ON THE JURISDICTIONAL QUESTIONS FOR RESPONDENT
EDITH SCHLAIN WINDSOR
This Court has directed the parties to address two jurisdictional questions. The answer to the first question is that this Court has jurisdiction to decide this case without regard to the Executive Branch’s view on the constitutionality of Section 3 of the Defense of Marriage Act (DOMA), 1 U.S.C. § 7, because the United States continues to enforce DOMA against respondent Edith Windsor. And because the United States is a proper and indispensable party to this lawsuit, the answer to the second question does not affect this Court’s ability to reach the merits.
STATEMENT OF THE CASE
A. Factual And Legal Background
1. Respondent Edith Schlain Windsor and her late spouse, Thea Clara Spyer, first met in 1963. J.A. 231. They soon became a couple, and in 1967, Dr. Spyer proposed to Ms. Windsor with a circular diamond pin. Id. 232-33. Following the same path as many newly engaged couples, they purchased a home together – a house near the beach on Long Island where they would spend the next forty summers until Dr. Spyer’s death in 2009. Id. 233. During those four decades, in sickness and in health, the couple also shared an apartment in Manhattan, supported one another’s careers, and built their lives together.
In 1977, Dr. Spyer was diagnosed with progressive multiple sclerosis, a chronic disease that causes debilitating and irreversible neurological

2
damage and paralysis. J.A. 234. As Dr. Spyer’s condition deteriorated – and she moved from a cane, to crutches, to a wheelchair – Ms. Windsor cared for her. Id. In 1993, they expressed their continued commitment to one another by becoming the eightieth pair to register as domestic partners when New York City first offered legal recognition for gay couples. Id. 235. Over the next fourteen years, Dr. Spyer’s disease wrought many changes in their daily lives, but one constant remained: Ms. Windsor and Dr. Spyer were determined to marry one another. Id.
In 2007, the couple married in Toronto. J.A. 236. At the ages of seventy-seven and seventy-five, they were featured on the wedding pages of the New York Times. Id. 175-77; Thea Spyer, Edith Windsor, N.Y. Times, May 27, 2007, at ST14. They spent the last two years of Dr. Spyer’s life together as a married couple.1
1 New York, “through its executive agencies and appellate courts, uniformly recognized Windsor’s same-sex marriage in the year that she paid the federal estate taxes.” Pet. App. 8a; see also U.S. Supp. Br. App. 7a. In fact, years before Ms. Windsor’s marriage to Dr. Spyer, the State Attorney General had already concluded that “New York law presumptively require[d]” that married gay couples “must be treated as spouses for purposes of New York law.” N.Y. Att’y Gen. Informal Op. 2004-1, at 16 (Mar. 3, 2004), available at http://tinyurl.com/NYAG04OP. Similarly, the State Comptroller General had ordered that the state’s retirement system “recognize a same-sex Canadian marriage in the same manner as an opposite-sex New York marriage, based on the principle of comity.” Letter from George S. King, Counsel to the Retirement System, to Mark E. Daigneault, at 5 (Oct. 4, 2004), available at http://tinyurl.com/NYCG04OP. And during Dr. Spyer’s lifetime,

3
2. As most married couples do, Ms. Windsor and Dr. Spyer provided for one another in their wills. Dr. Spyer’s will made Ms. Windsor executor and sole primary beneficiary of her estate. J.A. 164.
Under the Internal Revenue Code, an estate like Dr. Spyer’s would usually qualify for an unlimited marital deduction and would therefore pass to the surviving spouse without imposition of the federal estate tax. See 26 U.S.C. § 2056. But DOMA denies this deduction when both spouses are of the same sex. Instead, when read together with DOMA, the Internal Revenue Code treats gay spouses as if they were total strangers to one another, forcing estates like Dr. Spyer’s to pay the federal estate tax. See id. § 2001(a).
the Governor issued a directive requiring all state agencies to afford “same-sex marriages that are legally performed in other jurisdictions” the “same recognition as any other legally performed union.” Memorandum from David Nocenti to All Agency Counsel, at 1-2 (May 14, 2008), available at http://tinyurl.com/NYGOV08.
While New York’s highest court has not directly addressed the question, three of the state’s four intermediate appellate courts have, and they have each upheld the validity of out-ofstate marriages involving gay couples. See In re Estate of Ranftle, 917 N.Y.S.2d 195 (App. Div. 1st Dep’t 2011) (upholding the validity of a gay couple’s 2008 Canadian marriage); Lewis v. N.Y. State Dep’t of Civil Serv., 872 N.Y.S.2d 578, 583-84 (App. Div. 3d Dep’t) (upholding the Civil Service’s decision to recognize marriages of gay couples performed in other jurisdictions), aff’d on other grounds sub nom. Godfrey v. Spano, 13 N.Y.3d 358 (2009); Martinez v. Cnty. of Monroe, 850 N.Y.S.2d 740 (App. Div. 4th Dep’t 2008) (recognizing the validity of a gay couple’s 2004 Canadian marriage).

4
Ms. Windsor, acting as executor of Dr. Spyer’s will, made an advance payment to the Internal Revenue Service (IRS) and applied for an automatic extension of time within which to file the estate tax return. J.A. 169. The return she subsequently filed showed that the estate owed $363,053. Id. On the accompanying Schedule M form, she explained that the estate “was not claiming the marital deduction authorized by 26 U.S.C. § 2056(a) because of the operation of DOMA.” Id. In March 2010, the U.S. Treasury accordingly issued the estate a refund for the difference between the advance payment and the amount owed. Id.
The following month, Ms. Windsor filed a Claim for Refund and Request for Abatement with the IRS seeking a refund of the remaining $363,053. J.A. 242. In the accompanying Disclosure Statement, she explained that she and Dr. Spyer had been validly married under New York law at the time of Dr. Spyer’s death. Id. She further asserted that DOMA “discriminates against surviving spouses in married same-sex couples, such as Ms. Windsor,” in violation of the equal protection component of the Fifth Amendment. Id. 244.
The IRS rejected Ms. Windsor’s claim for a refund. J.A. 245. It insisted on “consider[ing] the facts of [the] claim without regard to the merits of [the] constitutional challenge” because “a determination regarding the constitutionality of a federal law is within the province of the courts.” Id. 251-52. Instead, the IRS simply declared that since

5
“both spouses were women,” the marital deduction was “inapplicable because the surviving spouse is not a spouse as defined by DOMA.” Id. 252.2
3. The Social Security Act provides a surviving spouse with widow’s insurance benefits and a lumpsum death payment (together, “survivors benefits”). See 42 U.S.C. § 402(e), (i). As Dr. Spyer’s widow, Ms. Windsor sought the survivors benefits. J.A. 166-67. In November 2010, when Ms. Windsor’s attorney hand delivered her application to the local Social Security Administration (SSA) office, a field supervisor rejected it on the spot, citing DOMA. Ms. Windsor immediately filed a request for reconsideration, but in April 2011 she received a Notice of Disapproved Claim, which purported to dismiss her request on the grounds that there had been no initial determination. In response, she filed a second request for reconsideration. In April 2012, that request was also denied. In its “Reconsideration Determination,” the SSA acknowledged that Ms. Windsor’s marriage was “considered valid” in New York “at the time of [Dr. Spyer’s] death.” Juris. App. 8a.3 But like the IRS, the SSA disclaimed any ability
2 At the time, New York State, for purposes of imposing its own estate tax, calculated the value of a decedent’s estate by reference to the estate’s federal tax liability. Thus, the IRS’s decision meant that Dr. Spyer’s estate, instead of owing New York nothing, owed the State $275,528. The estate timely paid that sum to the New York Department of Taxation and Finance. Ms. Windsor has filed a protective claim for a refund of New York estate tax.
3 The relevant Social Security materials are contained in the Appendix to this brief and are cited as “Juris. App.”

6
to entertain Ms. Windsor’s equal protection claim: “We are not permitted to make judgment regarding the constitutionality of the law at this level of your request, and we must follow the law as written.” Id.
The SSA also informed Ms. Windsor that, for constitutional claims, an “expedited appeal” process was available. Under that process, a claimant can bypass the usual requirement of full administrative exhaustion and “go directly to court.” Juris. App. 2a. Before an expedited appeal can proceed, both the claimant and the SSA must sign off. Ms. Windsor filed the necessary request for an expedited appeal in June 2012 and a revised request in August. Id. 10a15a. The SSA has yet to respond.
B. Proceedings Below
1. Ms. Windsor filed suit in the United States District Court for the Southern District of New York, naming the United States as the defendant. Her amended complaint invoked the district court’s jurisdiction under 26 U.S.C. § 7422 and 28 U.S.C. §§ 1331 and 1346(a)(1). J.A. 151. She sought three forms of relief: a refund of the $363,053 Ms. Windsor had paid on behalf of Dr. Spyer’s estate; a declaratory judgment that DOMA violates the equal protection component of the Fifth Amendment as applied to her in her capacity as executor; and an injunction requiring the United States to treat Dr. Spyer’s estate as if her spouse had been of the opposite sex. Id. 173. Her amended complaint stated that she was seeking the Social Security survivors benefit and notified the court that she would amend her complaint to add a claim for that relief if her application were ultimately to be denied. Id. 166-67.

7
2. Shortly before the United States’ answer was due, Attorney General Eric Holder announced that, while DOMA “will continue to be enforced by the Executive Branch . . . unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law’s constitutionality,” the Department of Justice would “forgo the defense of this statute.” J.A. 191-92.
The Attorney General explained that he was instructing the Department’s lawyers to “immediately inform” the district court in this case “of the Executive Branch’s view that heightened scrutiny is the appropriate standard of review and that, consistent with that standard, Section 3 of DOMA may not be constitutionally applied to samesex couples whose marriages are legally recognized under state law.” J.A. 193.
3. The Attorney General’s announcement prompted the district court to invite Congress to intervene. See J.A. 528.
The Senate did not respond to the district court’s invitation. But the Bipartisan Legal Advisory Group of the House of Representatives (BLAG) voted 3-2 along party lines to participate. BLAG then filed a motion to intervene for the limited purpose of defending DOMA’s constitutionality. J.A. 195. Neither Ms. Windsor nor the United States opposed BLAG’s motion.
The magistrate judge granted BLAG’s motion. J.A. 218. Under Second Circuit precedent, BLAG was not required “to establish independent Article III standing” given that there was “an ongoing case or controversy between the existing parties to the

8
litigation.” Id. 226. Since then, BLAG has participated actively at every stage of this litigation.
4. Ultimately, Ms. Windsor moved for summary judgment, J.A. 90, and BLAG and the United States moved to dismiss her complaint, id. 98.
The district court granted Ms. Windsor’s motion for summary judgment, and consequently denied the United States’ and BLAG’s motions to dismiss. J.A. 114. The district court held that DOMA failed to satisfy rationality review. Pet. App. 13a-14a. Accordingly, the court declared DOMA “unconstitutional as applied to Plaintiff” and awarded “judgment in the amount of $363,053.00, plus interest and costs allowed by law.” Id. 23a.
5. BLAG and the United States each filed a notice of appeal. J.A. 522, 524.
Before the Second Circuit, BLAG moved to dismiss the United States’ appeal and to “realign the appellate parties to reflect that the United States prevailed in the result it advocated in the district court.” U.S. Supp. Br. App. 4a. The Second Circuit denied that motion, agreeing unanimously that it had jurisdiction over the United States’ appeal. See id. 4a, 31a. On the merits, a divided panel then held that because DOMA discriminated against individuals on the basis of sexual orientation, heightened scrutiny was appropriate. Id. 15a-16a. Applying that standard, the majority held that “DOMA’s classification of same-sex spouses was not substantially related to an important government interest.” Id. 30a. It therefore affirmed the judgment of the district court. Id. 31a.

9
6. While the case had been pending before the Second Circuit, both Ms. Windsor and the United States filed petitions for a writ of certiorari before judgment raising the question of DOMA’s constitutionality under the Fifth Amendment.
BLAG filed its brief in opposition to the United States’ petition after the Second Circuit’s decision. Although the Second Circuit had held that “Windsor’s marriage would have been recognized under New York law at the time of Spyer’s death,” U.S. Supp. Br. App. 7a, BLAG questioned whether Ms. Windsor met “Article III prerequisites” to bring her action, BIO 20. Accordingly, BLAG argued that her case was an inappropriate vehicle for resolving a concededly important constitutional question. In addition, BLAG contended that because the United States had “prevailed” in the court of appeals, it was “not clear” that the United States had appellate standing. Id. 21.
Once the Second Circuit had ruled, the United States filed a supplemental brief requesting that this Court consider its earlier-filed petition “as one for certiorari after judgment.” U.S. Supp. Br. 7. BLAG also filed a supplemental brief, reiterating its claims that Ms. Windsor’s case was a problematic vehicle for resolving DOMA’s constitutionality.
7. This Court granted the United States’ petition. It directed the parties to brief and argue two jurisdictional questions in addition to the question presented by the United States. See 133 S. Ct. 786 (2012).
Three weeks later, BLAG filed its own petition for certiorari in Ms. Windsor’s case, ostensibly “so

10
that this Court has a vehicle to reach the question of DOMA’s constitutionality even if it concludes that the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction over DOJ’s petition.” Pet. Cert. 10, Bipartisan Legal Advisory Group of the United States House of Representatives v. Windsor (No. 12785). That petition is pending. Subsequently, the House of Representatives passed a resolution purporting to authorize BLAG’s participation in this lawsuit. J.A. 578-79.
SUMMARY OF ARGUMENT
Respondent Edith Windsor was compelled to pay hundreds of thousands of dollars in federal estate tax because the Defense of Marriage Act precluded her from claiming the marital deduction on behalf of her spouse’s estate. She sued the United States and obtained a judgment declaring DOMA unconstitutional as applied to her and ordering a refund of the tax she had paid. The United States has appealed that judgment against it and continues to withhold the taxes it collected. These facts, which Amica does not dispute, provide this Court with jurisdiction to decide this case.
1. As in INS v. Chadha, 462 U.S. 919 (1983), this Court has jurisdiction to reach the constitutional question even though the Executive Branch, the private party who has challenged the statute, and the courts below have agreed at every stage of this litigation that the statute is unconstitutional. Here, too, this Court can review the constitutional question at the behest of the Solicitor General.

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a. This case presents a concrete controversy within the meaning of Article III. The United States has enforced DOMA against Ms. Windsor throughout this litigation. It will continue do so in the future if DOMA is upheld by this Court. Thus, this Court’s decision “will have real meaning” for both parties. Chadha, 462 U.S. at 939. Furthermore, the participation of a congressional intervenor in support of the statute allays any concern about whether the issues will be sharply presented.
b. This Court has statutory jurisdiction over this case. The plain language of 28 U.S.C. § 1254(1) grants this Court jurisdiction to hear a petition from “any party,” and the United States undeniably meets that criterion. For purposes of appeal, moreover, the United States is an “aggrieved party” within the traditional understanding of that term. Judgment was entered against the United States. That judgment requires the United States both to pay hundreds of thousands of dollars to Ms. Windsor and to alter its administration of more than one thousand statutory provisions that affect married gay couples. These are legally cognizable consequences that, by any objective standard, make the United States an aggrieved party. Nothing bars a government defendant from appealing this sort of adverse judgment.
c. Assuming that this Court has jurisdiction, prudential and practical concerns militate strongly in favor of deciding the constitutionality of DOMA now. Leaving that question to the lower courts will perpetuate the harmful uncertainty faced by Ms. Windsor and hundreds of thousands of others. It may also result in significant disuniformity across

12
jurisdictions in the application of a federal statute. See Br. of Amici Curiae New York et al. Requiring every individual or couple affected by DOMA to bring a separate lawsuit until the relevant courts of appeals have ruled would create a legal morass for no good reason.
Furthermore, this is not a situation where, if this Court declines to review the constitutional question, unilateral Executive Branch action can provide a stable solution. With respect to federal benefits programs, the Appropriations Clause and the AntiDeficiency Act may mean that federal agencies cannot simply write individuals a check. And because DOMA applies outside the Executive Branch, and binds Congress, the Judiciary, and independent agencies, executive “non-enforcement” would not resolve the application of DOMA in many contexts.
2. Whether BLAG has independent Article III standing does not affect this Court’s jurisdiction. The United States’ continued – indeed, necessary – presence dictates that BLAG can properly assert “piggyback” standing and participate fully in this litigation.
ARGUMENT
I. Ms. Windsor Properly Invoked The Jurisdiction Of The Federal Courts.
This case raises profound questions of constitutional law regarding the Defense of Marriage Act, but those questions are “embedded” in an “actual controversy” about Ms. Windsor’s “particular legal rights.” Already, LLC v. Nike, Inc., 133 S. Ct. 721, 727 (2013) (internal quotation marks and citation

13
omitted). Ms. Windsor filed suit seeking “the recovery of” $363,053 in federal estate taxes “alleged to have been . . . illegally assessed.” 28 U.S.C. § 1346(a)(1). The United States refused, and continues to refuse, to refund this money.
1. As the executor of Dr. Spyer’s estate and the filer of the claim for refund, Ms. Windsor is the proper plaintiff in this lawsuit. See 26 U.S.C. §§ 6511(a), 7422(a); 26 C.F.R. § 301.6402-2(e). In that capacity, she has suffered injury in fact: “[A] claim that the plaintiff’s tax liability is higher than it would be, but for the allegedly unlawful government action” is a “concrete and particularized injury.” Hein v. Freedom From Religion Found., Inc., 551 U.S. 587, 619 (2007) (Scalia, J., concurring in the judgment).4 Here, to add insult to this “wallet injury,” id., the tax was imposed on Dr. Spyer’s estate
4 DOMA clearly caused this tax liability. While BLAG may continue to cast aspersions on Ms. Windsor and Dr. Spyer’s marriage, see, e.g., BLAG Br. 14, 24 n.6, both courts below agreed that at the time of Dr. Spyer’s death, Ms. Windsor and Dr. Spyer were legally married, see U.S. Supp. Br. App. 7a; Pet. App. 8a; see also supra p. 2 n.1. Absent DOMA, Dr. Spyer’s estate would have qualified for the marital deduction. Even BLAG concedes that Ms. Windsor has produced documents that, “if accurate, establish the eligibility of Spyer’s estate for the estate tax marital deduction and that the estate would not have been liable for federal estate tax, if Spyer had been married to a surviving male U.S. citizen at the time of her death.” J.A. 465.
Redressability is not in doubt: the federal courts are entirely capable of curing the injury Ms. Windsor suffered by issuing a judgment in her favor. But in any event, questions about the validity of a claimant’s marriage go to the merits, and not to jurisdiction.

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because DOMA treats married gay couples differently from all other married couples. As this Court has “repeatedly emphasized, discrimination itself, by perpetuating ‘archaic and stereotypic notions’ or by stigmatizing members of the disfavored group as ‘innately inferior’ and therefore as less worthy participants in the political community, can cause serious noneconomic injuries to those persons” who are “denied equal treatment solely because of their membership in a disfavored group.” Heckler v. Mathews, 465 U.S. 728, 739-40 (1984) (internal citation omitted) (quoting Miss. Univ. for Women v. Hogan, 458 U.S. 718, 725 (1982)).
2. The United States is the proper – indeed, the indispensable – defendant in this lawsuit. The Internal Revenue Code requires that the “United States,” and only the United States, be named as the defendant in a lawsuit seeking a tax refund. See 26 U.S.C. § 7422(f)(1). When a plaintiff names any other official defendant – for example, the IRS or the Commissioner of Internal Revenue – the “court shall order . . . that the pleadings be amended to substitute the United States as a party.” Id. § 7422(f)(2). Moreover, because this is a tax refund case, the United States is the only party that can provide the relief Ms. Windsor seeks.
3. In light of these facts, Amica states the obvious: “The district court plainly had jurisdiction over Windsor’s lawsuit.” Amica Br. 23. For the reasons that follow, as long as the United States continues to withhold the taxes DOMA forced Ms. Windsor to pay on behalf of Dr. Spyer’s estate, the appellate courts continue to have jurisdiction over her lawsuit.

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II. The Executive Branch’s Agreement With The Court Below That DOMA Is Unconstitutional Does Not Deprive This Court Of Jurisdiction To Decide This Case.
Ms. Windsor obtained a declaratory judgment against the United States holding DOMA unconstitutional as applied to her and ordering the United States to refund $363,053 in federal estate taxes unconstitutionally levied. Under these circumstances, the United States had standing to appeal to the Second Circuit and to seek review in this Court. See, e.g., Horne v. Flores, 557 U.S. 433, 445 (2009). The straightforward conclusion that the United States can seek this Court’s review of the judgment entered against it is in no way undercut by the Executive Branch’s motives for doing so. Its views on the constitutionality of DOMA do not alter the fact that this Court’s “decision will have real meaning” for the parties in this case, and for Ms. Windsor in particular. Chadha, 462 U.S. at 939. Accordingly, this Court should reach the merits.
A. There Remains A Live Article III Case Or Controversy Between Ms. Windsor And The United States.
1. This case involves a concrete dispute between Ms. Windsor and the United States. Article III, Section 2, of the Constitution confers on the federal courts “‘judicial Power’ [for] the resolution of ‘Cases’ and ‘Controversies.’” Sprint Commc’ns Co. v. APCC Servs., Inc., 554 U.S. 269, 273 (2008). For purposes of determining whether such a case or controversy exists here, the two most instructive cases, as Amica acknowledges, are INS v. Chadha, 462 U.S. 919

16
(1983), and United States v. Lovett, 328 U.S. 303 (1946). See Amica Br. 25. In each case, this Court exercised jurisdiction to reach the merits of the constitutional challenge despite the fact that the Solicitor General agreed with the lower court’s decision striking down the federal statute in question.
Chadha offers a particularly detailed analysis that shows why the lawsuit between Ms. Windsor and the United States remains a live case or controversy before this Court. See Chadha, 462 U.S. at 939-40. Chadha challenged a decision by the Immigration and Naturalization Service (INS) to reinstate deportation proceedings against him following a one-house “veto” of the Attorney General’s earlier decision to suspend those proceedings. See id. at 927-28.
The Attorney General agreed with Chadha, both before the court of appeals and in this Court, that the statute providing for a one-house veto was unconstitutional. See Chadha, 462 U.S. at 928, 939. Before this Court, the House and Senate argued that, because Chadha and the INS took “the same position on the constitutionality of the one-House veto,” there was no “genuine controversy.” Id. at 939. This Court rejected that argument, explaining that “the INS’s agreement with Chadha’s position does not alter the fact that the INS would have deported Chadha absent the Court of Appeals’ judgment.” Id. Thus, this Court “agree[d] with the Court of Appeals that ‘Chadha has asserted a concrete controversy, and our decision will have real meaning: if we rule for Chadha, he will not be deported; if we uphold § 244(c)(2), the INS will execute its order and deport

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him.’” Id. at 939-40 (quoting Chadha v. INS, 634 F.2d 408, 419 (9th Cir. 1980) (Kennedy, J.)). On this basis, the Court concluded that an Article III case or controversy was “present[]” in the case before it. Id. at 939.
For purposes of Article III adverseness, Chadha’s case and Ms. Windsor’s are indistinguishable. As in Chadha, a decision on the merits by this Court would have “real meaning.” If this Court rules for Ms. Windsor, she will receive a $363,053 refund; if the Court upholds DOMA, the United States will keep the money.5
This Court’s opinion in Chadha expressly relied on Lovett in reaching its conclusion that there was a live case or controversy before it. Chadha, 462 U.S. at 940. In Lovett, the Executive Branch declined to defend a provision of a congressional appropriations act that forbade salary payments to Lovett and two other government employees suspected of being subversives. 328 U.S. at 304-08. In a suit by the employees for back pay, the Court of Claims entered judgment against the United States – the sole defendant before it. The United States then sought review in this Court. Its petition for certiorari, which this Court granted, expressly reaffirmed the Attorney General’s view that the statute was “unconstitutional,” but asked the Court to grant review nonetheless because an “[a]uthoritative
5 A ruling in Ms. Windsor’s favor would also provide her with binding precedent requiring the SSA to grant her application for survivors benefits. See infra p. 32.

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decision by this Court” was “of the highest importance to the Government of the United States.” Pet. Cert. 9, Lovett v. United States, 328 U.S. 303 (1946).
Lovett was not a case in which jurisdictional questions went entirely “unaddressed.” Amica Br. 25 (internal quotation marks omitted). To the contrary, this Court was acutely aware that the case before it raised some questions of Article III justiciability, and it addressed those questions directly. See Lovett, 328 U.S. at 313-14. But no Justice so much as hinted that the Court lacked jurisdiction over the constitutional issue because the Executive Branch had agreed with the judgment of the court below.6 Given the uncommon alignment of the parties, it is just not plausible that this Court would have overlooked a serious question about its jurisdiction. The best reading of Lovett is therefore that this Court “found the requisite case or controversy was not absent.” Chadha v. INS, 634 F.2d at 420 n.9 (Kennedy, J.).
2. The Executive Branch’s motivation for continuing to enforce DOMA against Ms. Windsor by withholding her refund has no bearing on the continued existence of this live case or controversy.
6 That silence is all the more telling given that Justice Frankfurter at oral argument vowed to “avoid the constitutional question” if he could do so “with intellectual integrity.” 14 U.S.L.W. 3379, 3382 (1946). His solution was to urge that the case be decided on statutory grounds. See Lovett, 328 U.S. at 320 (Frankfurter, J., concurring). He never suggested that the Court lacked jurisdiction altogether.

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This Court has long understood that the presence of a case or controversy turns on whether the plaintiff has obtained the relief she is seeking, and not on the defendant’s view of the ultimate merits of the plaintiff’s claim. As this Court explained in In re Metropolitan Railway Receivership, 208 U.S. 90, 10708 (1908), “where there is a justiciable claim of some right,” it is “not necessary that the defendant should controvert or dispute the claim. It is sufficient that he does not satisfy it.” This Court took the same approach in Chadha, observing that “it would be a curious result if, in the administration of justice, a person could be denied access to the courts because the Attorney General of the United States agreed with the legal arguments asserted by the individual.” 462 U.S. at 939. As then-Judge Kennedy stated in reaching the same conclusion, “it would be a perversion of the judicial process” to “dismiss[] [Chadha’s] appeal for lack of adversity” because doing so “would implicitly approve the untenable result that all agencies could insulate unconstitutional orders and procedures from appellate review simply by agreeing that what they did was unconstitutional.” Chadha v. INS, 634 F.2d at 420.
The same analysis applies here. Chadha is merely one illustration of the general point that government defendants may be “happy to be sued and happier still to lose,” Horne, 557 U.S. at 449 (internal quotation marks and citation omitted). That point goes to the scope of courts’ remedial powers, see id. at 449-50, and not to the scope of their jurisdiction. This Court has never suggested that courts lack jurisdiction to enter judgments against government defendants that agree with an injured

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plaintiff’s claim on the merits. Whatever its reasons for doing so, the United States continues to withhold hundreds of thousands of dollars that Ms. Windsor contends are rightfully hers. That fact alone establishes an Article III case or controversy before this Court.
BLAG’s participation in this case reinforces the presence of a live case or controversy here. As in Chadha, where Congress’s participation before this Court assured that “concrete adverseness” was “beyond doubt,” 462 U.S. at 939; see also id. at 931 n.6, so too here. BLAG’s full participation in briefing and oral argument continues to “sharpen[] the presentation of issues.” Baker v. Carr, 369 U.S. 186, 204 (1962).
3. Amica’s attempts to distinguish Chadha are unavailing.
First, Amica claims that this Court’s finding of an Article III case or controversy between Chadha and the United States only “sustained the justiciability of the case in the Ninth Circuit,” Amica Br. 27, and does not answer the question whether there was jurisdiction in this Court. Amica’s reading, however, cannot be reconciled with this Court’s actual language. Three times, this Court used the word “we” in its discussion of why a “concrete controversy” existed: “We agree with the Court of Appeals” that “‘if we rule for Chadha, he will not be deported; if we uphold § 244(c)(2), the INS will execute its order and deport him.’” Chadha, 462 U.S. at 939-40 (emphases added) (quoting Chadha v. INS, 634 F.2d at 419). Had this Court meant to restrict its analysis to the Ninth Circuit, it would not have

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repeatedly used the first-person plural. Moreover, Amica does not explain why this Court would have addressed the Ninth Circuit’s jurisdiction, while ignoring questions about its own, if in fact it had them. The only plausible reading of the Court’s discussion, therefore, is that it was directed at the question whether this Court – and not just the Ninth Circuit – had jurisdiction to decide the case.
Amica is also incorrect in asserting that Chadha “did not decide . . . whether, without the intervenors, a sufficient case or controversy would have been present on appeal to this Court.” Amica Br. 28 (emphasis in original). Again, a straightforward reading of Chadha undermines her argument. This Court squarely stated, “prior to Congress’ intervention, there was adequate Art. III adverseness even though the only parties were the INS and Chadha.” Chadha, 462 U.S. at 939 (emphasis added). That adverseness did not evaporate when the status of the House and Senate changed from that of amici to that of intervenors as the case advanced to this Court. Indeed, as this Court later explained, in Chadha there was “Art. III adverseness even though the two parties agreed on the unconstitutionality of the one-House veto.” Cardinal Chem. Co. v. Morton Int’l, Inc., 508 U.S. 83, 88 n.9 (1993).
To be sure, “prudential, as opposed to Art. III, concerns” may exist when a case comes to this Court “in the absence of any participant supporting the validity of” a challenged statute. Chadha, 462 U.S. at 940. But just as those prudential concerns were “properly dispelled” in Chadha by the briefs filed by Congress, id., those concerns are dispelled here by BLAG’s participation. Whether or not the Executive

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Branch’s agreement with a lower court judgment implicates prudential concerns – and Ms. Windsor believes it does not, see infra pp. 31-35 – Article III poses no barrier to hearing this case.
4. Amica’s reliance on this Court’s per curiam decisions in Princeton University v. Schmid, 455 U.S. 100 (1982), and Moore v. Charlotte-Mecklenburg Board of Education, 402 U.S. 47 (1971), is also misplaced.
Amica herself acknowledges that Schmid, a case involving mootness, “is not on all fours” with this one. Amica Br. 30 n.18. At most, Schmid casts doubt on jurisdiction only when a party’s refusal “to take a position on the merits” forces the Court to either “decide hypothetical issues or to give advisory opinions about issues as to which there are not adverse parties.” 455 U.S. at 102.
None of these difficulties exists here. Ms. Windsor, the United States, and BLAG have all taken positions on the merits. Like the INS and Chadha, the United States and Ms. Windsor are “adverse parties.” See supra pp. 15-20. There is nothing “hypothetical” about Ms. Windsor’s $363,053 refund claim or her application for the Social Security survivors benefits.
Nor does Moore support Amica’s argument. To be sure, this Court did observe there that when “both litigants desire precisely the same result” there is “no case or controversy within the meaning of Art. III of the Constitution.” Moore, 402 U.S. at 48; see also Amica Br. 31. But it did so in a singular context far removed from this case. As this Court has explained, Moore was an “ancillary proceeding” to the well-

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known Swann v. Charlotte-Mecklenburg desegregation lawsuit. N.C. State Bd. of Ed. v. Swann, 402 U.S. 43, 44 (1971); see Moore, 402 U.S. at 47. Moore sued the Board in a separate action to prevent it from complying with the desegregation remedy that Swann had been seeking in his ongoing lawsuit against the Board. Without consolidating the two cases, a three-judge district court entered an order enjoining both Moore and the Board from enforcing or seeking to enforce North Carolina’s antibusing statute. N.C. State Bd. of Ed., 402 U.S. at 44 n.2. Thus, as it arrived at this Court, Moore was essentially a case with two defendants against whom relief had been granted, but no plaintiff. This problem, although it resulted in Moore’s appeal being dismissed for lack of adverseness, did not preclude the Court from reaching and adjudicating the underlying constitutional issue, which it did in a companion case (in which the Board participated). See id. at 44.
Finally, it bears mentioning that although the House of Representatives relied on Moore at every stage of its briefing in Chadha, see House Supp. Br. 71, 1982 U.S. S. Ct. Briefs LEXIS 1631; House Reply Br. 12-13, 1982 WL 607218; House Br. 47, 1981 WL 388493; House Mot. to Dismiss 24-25, 1981 U.S. S. Ct. Briefs LEXIS 1429, not a single Justice was persuaded that Moore undermined this Court’s jurisdiction. This Court should once again reject that argument here. See also 20 Charles Alan Wright & Mary Kay Kane, Federal Practice and Procedure Deskbook § 13 nn.25-27 (2012) (distinguishing Schmid and Moore from Chadha for purposes of the Article III case or controversy requirement).

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5. Amica recognizes that this Court has repeatedly granted review in cases where the Government has confessed error and therefore is seeking “precisely the same result” as the opposing party. Amica Br. 31 & n.19 (internal quotation marks omitted) (quoting GTE Sylvania, Inc. v. Consumers Union of the U.S., Inc., 445 U.S. 375, 383 (1980)). See generally Brian P. Goldman, Note, Should the Supreme Court Stop Inviting Amici Curiae to Defend Abandoned Lower Court Decisions?, 63 Stan. L. Rev. 907 (2011).
Amica contends, however, that “Government ‘confession of error’ is quite distinct” from the situation here. Amica Br. 31 n.19. She is mistaken. Amica conflates the question of adverseness under Article III with the question of appellate standing. With respect to adverseness, the only difference between confession of error cases and this case is the timing of the Government’s change of position. There is no reason why that timing affects the nature of the relationship between the litigants. Whether the Executive Branch declined to defend DOMA before the district court, or it waited until the court of appeals, the certiorari stage, or even merits briefing, see Millbrook v. United States, No. 11-10362, is immaterial. The factor that preserves the ongoing case or controversy here is the United States’ continuing enforcement of DOMA against Ms. Windsor.
Amica’s observation that in confession of error cases “the parties seek to undo a judgment,” while “here, the government agrees with the judgment below,” Amica Br. 31 n.19 (emphases in original), goes not to the relationship between the litigants, but

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to the distinct question of the United States’ relationship to the judgment below. That is a matter of appellate standing, which as the next section of this brief explains, the United States satisfies.
B. Section 1254(1) And Ordinary Rules Of Appellate Practice Confirm That This Court Has Jurisdiction.
1. This Court reviews cases coming from the courts of appeals “[b]y writ of certiorari granted upon the petition of any party to any civil or criminal case before or after rendition of judgment or decree.” 28 U.S.C. § 1254(1). In Camreta v. Greene, 131 S. Ct. 2020 (2011), this Court held that the statute means what it says: Section 1254 “confers unqualified power on this Court to grant certiorari ‘upon the petition of any party.’” Id. at 2028 (emphasis in original) (quoting 28 U.S.C. § 1254(1)). The United States was undeniably a party to Ms. Windsor’s lawsuit in both the district court and the court of appeals. That fact disposes of the question whether, as a matter of statutory construction, the United States can seek review in this Court. It can.
2. “[O]rdinary rules of appellate jurisdiction,” Amica Br. 24, do not alter that conclusion. Once again, Chadha controls. There, this Court rejected the argument that the United States could not seek review in this Court because it was not an “aggrieved party.” Chadha, 462 U.S. at 930. This Court offered two bases for its holding. First, the INS was “sufficiently aggrieved” because “the Court of Appeals decision prohibit[ed] it from taking action it would otherwise take” – namely, deporting Chadha. Id. Second, the INS was “an aggrieved party for purposes

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of taking an appeal” because an “Act of Congress it administers” was “held unconstitutional.” Id. at 931. Importantly, the “agency’s status as an aggrieved party” was “not altered by the fact that the Executive may agree with the holding that the statute in question is unconstitutional.” Id.
The same analysis governs this case. As in Chadha, although the Executive Branch may agree with the holding that the challenged statute is unconstitutional, the decision of the court of appeals prohibits the United States from taking action it would otherwise continue to take – here, enforcing DOMA by withholding the taxes collected from Dr. Spyer’s estate and denying Ms. Windsor Social Security survivors benefits. And it goes without saying that DOMA, an Act of Congress that the United States administers through many different agencies (including, in Ms. Windsor’s case, the IRS and the SSA), was held unconstitutional. The United States is therefore “sufficiently aggrieved” by the lower court’s judgment.
3. Amica attempts to downplay this aspect of Chadha by claiming that the case “spoke only in statutory terms” applicable to the since-repealed 28 U.S.C. § 1252, which concerned this Court’s mandatory jurisdiction. Amica Br. 26. That argument is unpersuasive. For purposes of deciding which parties are entitled to seek this Court’s review, nothing distinguishes former Section 1252 from Section 1254(1). Both expressly confer that right on “any party.”
The salient difference between Sections 1252 and 1254(1) does not concern who can seek review, but

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rather whether this Court’s exercise of review is mandatory or permissive. Amica claims that the “permissive” nature of Section 1254 “weighs in favor of hewing to prudential limits on the exercise of jurisdiction.” Amica Br. 37. Even if that were true, it would be irrelevant in a case like this, where the need to resolve the constitutional question is manifest. The logic of the House Report that accompanied the legislation repealing Section 1252 is incompatible with Amica’s argument. That Report declared it “unlikely” that the contraction of this Court’s mandatory jurisdiction would lead it to “deny review to important constitutional questions that merit its immediate attention.” 100 H.R. Rep. No. 100-660, at 10 (1988). The class of litigants that could previously bring an appeal under Section 1252 would still, after repeal, be able to seek review of courts of appeals’ decisions by petition for certiorari. The Report further explained that “the removal of direct appeal authority should not create an obstacle to the expeditious review of cases of great importance.” Id. at 11. No one disputes the great importance of this case.
4. Amica’s reliance on Deposit Guaranty National Bank v. Roper, 445 U.S. 326 (1980), is similarly unavailing. Amica argues that the United States is not aggrieved because “[a] party who receives all that he has sought generally is not aggrieved by the judgment affording the relief and cannot appeal from it.” Amica Br. 38 (quoting Deposit Guar., 445 U.S. at 333). But in Chadha, this Court rejected an identical invocation of Deposit Guaranty. 462 U.S. at 930. There, Congress contended that because the INS had “already

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received what it sought from the Court of Appeals” – namely, a holding that a statute permitting the onehouse veto was unconstitutional – the agency was “not an aggrieved party.” Id. In response, this Court flatly declared: “We cannot agree.” Id.
It did so for good reason. Deposit Guaranty addressed the question whether plaintiffs who have been awarded the relief they sought nonetheless qualify as aggrieved parties for purposes of appeal. The answer to that question says nothing about whether – as in Chadha and here – a defendant against whom judgment has been entered may appeal.7 Counsel are aware of no case in which a government defendant against whom judgment was entered has been denied the right to appeal on the grounds that it believed the adverse judgment was the correct legal result.
In any event, “this Court reviews judgments, not opinions.” Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 842 (1984). And in this case, there is no question that “judgment was entered against the United States.” Amica Br. 39. First, it was ordered to pay hundreds of thousands of dollars to Ms. Windsor. How this one-way transfer from the U.S. Treasury to Ms. Windsor could mean that both parties “prevailed” in any legal sense is a mystery. Furthermore, an Act of Congress that the United
7 Camreta, by contrast, involved the very different question of whether a defendant, in whose favor judgment has been entered, may nonetheless appeal because he retains an interest in seeking review of a legal issue.

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States administers with respect to hundreds of different federal programs was “held unconstitutional” – essentially the situation that led this Court in Chadha to hold that the Government was “an aggrieved party.” 462 U.S. at 931. When a named defendant has a declaratory judgment entered against it, that defendant “has alleged a sufficiently ‘personal stake in the outcome of the controversy’ to support standing” to seek review of the lower court’s judgment. Horne, 557 U.S. at 445 (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)). By any objective standard, then, the United States is an aggrieved party, entitled to seek review of the judgment against it.8
8 Amica claims that Chadha does not answer the question whether the United States has “Article III standing to appeal” in this case. Amica Br. 28. She then suggests that such standing is lacking because, with respect to the judgment below, “no ‘injury’ to the United States was ‘caused’ by that judgment, nor could this Court’s overturning of that judgment provide ‘redress.’” Id. 31.
Amica is wrong. Her discussion confuses the requirements a plaintiff must show to invoke the judicial power of the United States in the first place, see Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992), with the quite different standard applicable to a defendant against whom the judicial power has been exercised and judgment has been entered. Although the words “injury,” “caused,” and “redress” appear in quotation marks, the brief provides no supporting authority for the proposition that Article III imposes injury, causation, and redressability requirements on defendants seeking to appeal. The question with respect to standing to appeal is not whether a defendant against whom judgment has been entered can show an “injury” from the lower court’s judgment (as a plaintiff must show an “injury traceable to the defendant,” Lewis v. Cont’l

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Amica would have this Court fashion “more common-sense standards for determining who is a prevailing party.” Amica Br. 40. But common sense confirms the wisdom of the existing bright-line rule: a party prevails when a court “materially alters the legal relationship between the parties” in a manner that “directly benefits” the party in question. Lefemine v. Wideman, 133 S. Ct. 9, 11 (2012) (internal quotation marks omitted) (quoting Farrar v. Hobby, 506 U.S. 103, 111-12 (1992)). In this case, that definition makes Ms. Windsor, not the United States, the prevailing party. Accordingly, the Executive Branch’s agreement with the court below that DOMA is unconstitutional in no way forecloses the United States from obtaining review in this Court.9
Bank Corp., 494 U.S. 472, 477 (1990)), but rather, as Chadha makes clear, whether the defendant can show that it is “aggrieved” by the judgment, 462 U.S. at 930. As the preceding discussion shows, the United States is an aggrieved party, and in any event that requirement “does not have its source in the jurisdictional limitations of Art. III,” Deposit Guar., 445 U.S. at 333-34.
9 For the reasons outlined above, see supra pp. 15-29, Amica’s suggestion that “any government appeal from the District Court is barred,” Amica Br. 33 n.22, is also misplaced. The Article III case or controversy analysis is identical at both stages. Moreover, the relevant jurisdictional statute was satisfied here because that statute gives the courts of appeals “jurisdiction of appeals from all final decisions of the district courts.” 28 U.S.C. § 1291 (emphasis added). Finally, the United States was aggrieved by the district court’s judgment against it for the same reasons it was aggrieved by the Second Circuit’s affirmance of that judgment.

31
C. Prudential And Practical Concerns Strongly Favor This Court Exercising Its Jurisdiction Here.
It is axiomatic that “judging the constitutionality of an Act of Congress is ‘the gravest and most delicate duty that this Court is called on to perform.’” Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 204 (2009) (quoting Blodgett v. Holden, 275 U.S. 142, 148 (1927) (opinion of Holmes, J.)). Thus, this Court rarely delays reviewing cases where congressional statutes have been declared unconstitutional. See, e.g., United States v. Alvarez, 132 S. Ct. 2537 (2012); Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010); United States v. Stevens, 130 S. Ct. 1577 (2010). Doing so is necessary to avoid the confusion that inevitably arises from differing lower court decisions.10
1. There are particularly strong reasons for this Court to reject Amica’s suggestion that it leave the question of DOMA’s constitutionality undecided to
10 Amica points to no instance in which this Court has denied the Solicitor General’s request to review a lower court decision striking down a federal statute as unconstitutional. Counsel for Ms. Windsor are aware of just two. FCC v. Action for Children’s Television, 503 U.S. 914 (1992), was both interlocutory in posture and presented a real likelihood of an equally divided court, given that then-Judge Thomas was on the panel below. Mukasey v. ACLU, 555 U.S. 1137 (2009), was a case where this Court had already affirmed the grant of a preliminary injunction barring enforcement of the challenged statute on First Amendment grounds. Those two cases are a far cry from this one.

32
allow for more “time and reflection in the lower courts.” Amica Br. 38.
First, “federal district judges, sitting as sole adjudicators, lack authority to render precedential decisions binding other judges, even members of the same court.” Am. Elec. Power Co. v. Connecticut, 131 S. Ct. 2527, 2540 (2011); see Camreta, 131 S. Ct. at 2033 n.7. So even a raft of decisions striking down DOMA as applied to particular plaintiffs would leave thousands of similarly situated people unprotected until the relevant courts of appeals have ruled. See Br. of Amici Curiae Former Senior Justice Department Officials et al. And until then, individuals and couples may be forced to litigate each discrete claim for equal treatment separately.
Ms. Windsor’s predicament illustrates this very point. If this case were unwound back to the district court’s judgment, it is unclear whether that judgment would bind the Government with respect to Ms. Windsor’s ongoing Social Security claim. Collateral estoppel is available against the United States in only limited circumstances. See United States v. Mendoza, 464 U.S. 154, 162-64 (1984). Ms. Windsor obtained the existing judgment in her capacity as executor of Dr. Spyer’s will, J.A. 173, but in seeking her Social Security survivors benefits, she would be proceeding in her individual capacity. She might therefore be forced to relitigate DOMA’s constitutionality because “[a]cts performed by the same person in two different capacities are generally treated as the transactions of two different legal personages.” Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 543 n.6 (1986) (internal quotation marks and citation omitted).

33
Second, leaving DOMA’s constitutionality to the courts of appeals poses its own set of problems for married gay couples. It may well take years for “a uniform rule” to emerge. Amica Br. 38. And absent this Court’s intervention, uniformity may never come. In the meantime, married gay couples will continue to be denied equality under the law and essential government benefits that all other married couples can depend on. See Br. of Amici Curiae Empire State Pride Agenda et al. (highlighting some of the burdens DOMA imposes on married gay couples). Amica provides no persuasive argument why the speculative benefits of further percolation outweigh the quite tangible harms that DOMA inflicts every day.
2. The Executive Branch’s decision to enforce but not defend DOMA was expressly designed to ensure that this Court would remain “the final arbiter of the constitutional claims raised” in Ms. Windsor’s case. J.A. 192. Any suggestion that the Executive Branch should stop enforcing DOMA now that two courts of appeals and several district courts have held the statute unconstitutional ignores the difficulties that course of action would pose for tens of thousands of people. Indeed, it is a misnomer even to speak of “enforcing” or “declining to enforce” DOMA. Because DOMA cuts across a wide swath of federal law, “nonenforcement” in many instances would actually require government officials to take affirmative steps.
Even within the Executive Branch itself, “nonenforcement” raises a host of difficult issues. For example, the Appropriations Clause provides that “[n]o Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” U.S.

34
Const. art. I, § 9, cl. 7. Similarly, the Anti-Deficiency Act, 31 U.S.C. §§ 1341, 1350, dictates that “[i]f an executive officer on his own initiative had decided that, in fairness, [a claimant] should receive benefits despite [a] statutory bar, the official would risk prosecution.” OPM v. Richmond, 496 U.S. 414, 430 (1990). It is therefore unclear whether the Executive Branch could decide unilaterally to provide married gay couples with the federal benefits from which DOMA undeniably excludes them or whether “nonenforcement” would nevertheless require those couples to continue litigating to secure their right to equal treatment.11
Even if the Executive Branch could unilaterally start cutting checks from the U.S. Treasury, “nonenforcement” would do absolutely nothing to resolve the daily quandaries confronting married gay couples and the government actors outside the Executive Branch with whom they deal. DOMA affects every branch of the federal government, including Congress, the Judiciary, and independent agencies. Consider just a few examples:
 House Rules require a Member to prohibit “lobbying contact” between the Member’s “spouse” and the Member’s staff. House Rule XXV, cl. 7 (rev. Jan. 3, 2013), available at http://tinyurl.com/House-Rules113thCong. If
11 Once a federal court has issued an order requiring that benefits be provided, the Government may, through the Judgment Fund, see 28 U.S.C. § 2414; 31 U.S.C. § 1304(a), issue payments that the Appropriations Clause or the Anti-Deficiency Act might otherwise have prohibited.

35

DOMA controls, could a married

Representative direct his staff to meet with

his male spouse to discuss pending legislation

if his spouse is a lobbyist?

 The rules for admission to the Supreme Court

Bar provide that an applicant-attorney must

have two sponsors who are “not related to [the

applicant] by blood or marriage.” Supreme

Court of the United States, Instructions for

Admission to the Bar, available at

http://tinyurl.com/afb24er (last visited Feb.

18, 2013). Could an attorney sponsor her

female spouse for admission to this Court’s

Bar?

 The Federal Election Commission, an

independent agency, has promulgated a

regulation permitting the use of campaign

funds to pay for the “costs of travel by the

recipient Federal officeholder and an

accompanying spouse.”

11 C.F.R.

§ 113.2(a)(1). Could a married Senator be

prohibited from using campaign funds to

bring her female spouse with her on a trip?

In the absence of a definitive determination from this Court, married gay couples, government officials, and other actors whose behavior is affected by DOMA cannot rely on the Attorney General’s views about the statute to resolve any of these questions. See Br. of Amici Curiae New York et al. In short, prudential considerations cut decisively in favor of this Court resolving the constitutionality of DOMA, and resolving it now.

36
III. Because Ms. Windsor Has A Cause Of Action Only Against The United States, Whether BLAG Has Independent Article III Standing Does Not Affect This Court’s Jurisdiction.
1. Given the nature of Ms. Windsor’s cause of action, the United States is an indispensable party defendant in this case. With respect to Ms. Windsor’s cause of action for a tax refund, federal law requires the claimant to file suit against the United States – and permits her to sue no one else, including BLAG. See 26 U.S.C. § 7422(f)(1). And in general, “the proper defendant in a suit for prospective relief is the party prepared to enforce the relevant legal rule against the plaintiff.” Camreta v. Greene, 131 S. Ct. 2020, 2043 (2011) (Kennedy, J., dissenting). Thus, with respect to her claim for the $363,053 refund, Ms. Windsor was required to sue the United States, not BLAG.
Moreover, Ms. Windsor has never had any legally cognizable cause of action against BLAG for prospective or injunctive relief. Here, too, because her injuries are caused by the action of Executive Branch officials (in the IRS or SSA), Ms. Windsor is required to sue the United States or the relevant officials, and not the five members of the House leadership who constitute BLAG. In short, because BLAG did not cause Ms. Windsor’s injury and could not provide her with redress, Ms. Windsor could not have sued it, even assuming that BLAG is a legal entity subject to suit. Cf. Barnes v. Kline, 759 F.2d 21, 67 (D.C. Cir. 1984) (Bork, J., dissenting) (explaining that in Chadha, Congress functioned more like an amicus curiae than a party, as “[n]o judgment could be entered against Congress”),

37
vacated on other grounds sub nom. Burke v. Barnes, 479 U.S. 361 (1987).
2. Nor, of course, could BLAG have sued Ms. Windsor. Counsel are aware of no lawsuit in which a group of elected officials has been permitted to pursue a declaratory judgment action against a private individual in order to obtain a ruling on the constitutionality of a statute it supports. See Brief For Amici Curiae Former Senior Justice Department Officials et al.; cf. Camreta, 131 S. Ct. at 2043 (Kennedy, J., dissenting) (suggesting that the party there was “in effect fil[ing] a new declaratory judgment action in this Court”).
In light of this reality, BLAG can at most be an intervenor in an ongoing lawsuit between Ms. Windsor and some other party – in this case, the United States. As such, BLAG’s independent Article III standing is irrelevant to this Court’s ability to adjudicate this case.
3. The United States’ continuing presence as a party means that BLAG can assert “piggyback” standing without regard to Article III. Diamond v. Charles, 476 U.S. 54, 64 (1986). In Diamond, the State of Illinois did not appeal a decision striking down its abortion law, but a doctor who had intervened in the lower court proceedings did. Id. at 61. This Court rejected the doctor’s claim that he had independent Article III standing. Id. at 56. But it nonetheless confirmed that, had Illinois sought review, “this Court’s Rule 10.4 makes clear that Diamond, as an intervening defendant below,” also would have been “entitled to seek review, enabling him to file a brief on the merits, and to seek leave to

38
argue orally.” Id. at 64. The Court further explained that “this ability to ride ‘piggyback’ on the State’s undoubted standing exists only if the State is in fact an appellant before the Court; in the absence of the State in that capacity, there is no case for Diamond to join.” Id. The same principles apply here. Because the United States sought certiorari, BLAG can participate fully in the proceedings before this Court, regardless of whether it has independent Article III standing.
4. Whether BLAG would have had independent Article III standing if the United States had not petitioned for certiorari is a counterfactual question that this Court need not answer. Indeed, because of controlling Second Circuit precedent, neither court below found it necessary to resolve the nature of BLAG’s standing.12 This Court should reserve the question for another day, when answering it would actually affect this Court’s ability to reach the merits.
12 Along with the Fifth, Sixth, Tenth, and Eleventh Circuits, the Second Circuit has held that intervening parties need not establish independent standing so long as there is an Article III case or controversy between the original plaintiff and the original defendant. See U.S. Postal Serv. v. Brennan, 579 F.2d 188, 190 (2d Cir. 1978); Ruiz v. Estelle, 161 F.3d 814, 832 (5th Cir. 1998); Purnell v. City of Akron, 925 F.2d 941, 948 (6th Cir. 1991); San Juan Cnty., Utah v. United States, 503 F.3d 1163, 1172 (10th Cir. 2007); Dillard v. Chilton Cnty. Comm’n, 495 F.3d 1324, 1337 (11th Cir. 2007). This position conflicts with the view of the District of Columbia and Seventh Circuits. See Jones v. Prince George’s Cnty., Md., 348 F.3d 1014, 1017 (D.C. Cir. 2003); Solid Waste Agency of N. Cook Cnty. v. U.S. Army Corps of Eng’rs, 101 F.3d 503, 507 (7th Cir. 1996).

39 CONCLUSION
For the foregoing reasons, this Court should hold that it has jurisdiction to decide whether DOMA violates the Fifth Amendment.
Respectfully submitted,

Pamela S. Karlan Jeffrey L. Fisher STANFORD LAW SCHOOL
SUPREME COURT LITIGATION CLINIC 559 Nathan Abbott Way Stanford, CA 94305
James D. Esseks Joshua A. Block Leslie Cooper Steven R. Shapiro AMERICAN CIVIL
LIBERTIES UNION FOUNDATION 125 Broad Street New York, NY 10004

Roberta A. Kaplan Counsel of Record
Walter Rieman Jaren Janghorbani Colin S. Kelly PAUL, WEISS, RIFKIND,
WHARTON & GARRISON LLP 1285 Avenue of the Americas New York, NY 10019 (212) 373-3000 rkaplan@paulweiss.com
Arthur Eisenberg Mariko Hirose NEW YORK CIVIL
LIBERTIES UNION FOUNDATION 125 Broad Street New York, NY 10004

February 22, 2013

1a
APPENDIX A
SOCIAL SECURITY ADMINISTRATION NOTICE OF RECONSIDERATION [Caption Omitted in Printing]
EDITH SCHLAIN WINDSOR
[address redacted]
You asked us to take another look at your claim for Social Security widow’s benefits. Someone who did not make the first decision reviewed your case, including any new facts you gave us. After this review, we found that our first decision was correct.
You are not entitled to benefits because you do not meet the marriage requirements to be entitled to widow’s benefits.
On the enclosed form, we discuss the reasons for our decision in more detail.
Do You Disagree With The Decision?
If you disagree with the decision, you have the right to request a hearing. At the hearing, a person who has not seen your case before will look at it. That person is an Administrative Law Judge. The judge will review your case again and consider any new facts you have.
 You have 60 days to ask for a hearing.
 The 60 days start the day you receive this letter. We assume you got this letter 5 days after the date on it, unless you show us that you did not get it within the 5-day period.

2a
 You must have a good reason if you wait more than 60 days to ask for a hearing.
 You have to ask for a hearing in writing. We will ask you to fill out a Form HA-501, called “Request for Hearing.” If you want to make a request, please contact one of our offices. We can help you fill out the form.
Please read the enclosed pamphlet, “Your Right to an Administrative Law Judge Hearing and Appeals Council Review of Your Social Security Case.” It contains more information about the hearing.
There is a different way to appeal if you think the Social Security law is not constitutional. It is called expedited appeal. If you choose expedited appeal, after an agreement is signed by you and by our representative, you can go directly to court for a decision about whether the law is constitutional. The Social Security Administration cannot make that decision. Only the court can decide if the law is constitutional. Social Security will not make any other appeal decision about your claim for benefits if you choose an expedited appeal.
If you want to use this appeal or have any questions, you should contact any Social Security office within 60 days to file a written request.
New Application
You have the right to file a new application at any time, but filing a new application is not the same as appealing this decision. If you disagree with this decision and you file a new application instead of appealing:

3a
 you might lose some benefits, or not qualify for any benefits, and
 we could deny the new application using this decision, if the facts and issues are the same.
So, if you disagree with this decision, you should file an appeal within 60 days.
If You Have Any Questions
We invite you to visit our website at www.socialsecurity.gov on the Internet to find general information about Social Security. If you have any specific questions, you may call us toll-free at 1-800-772-1213, or call your local Social Security office at 1-866-335-1089. We can answer most questions over the phone. If you are deaf or hard of hearing, you may call our TTY number, 1-800-3250778. You can also write or visit any Social Security office. The office that serves your area is located at:
SOCIAL SECURITY ROOM 120 31ST FLOOR 26 FEDERAL PLAZA NEW YORK, NY 10278
If you do call or visit an office, please have this letter with you. It will help us answer your questions. Also, if you plan to visit an office, you may call ahead to make an appointment. This will help us serve you more quickly when you arrive at the office.
Social Security Administration

4a

RECONSIDERATION DETERMINATION

(Form SSA-662)

PROGRAM SERVICE CENTER
Processing Center Operations
Northeastern Program Service Center

DISTRICT OFFICE OR BRANCH OFFICE
Downtown NY, NY

NAME OF WAGE EARNER OR SELFEMPLOYED PERSON

SOCIAL SECURITY CLAIM NO.

Thea C Spyer NAME OF CLAIMANT

[redacted] TYPE OF CLAIM

Edith Schlain Windsor

Widow’s Insurance Benefits

DETERMINATION:
On November 15, 2011 [sic], you applied for widow’s insurance benefits and the lump sum death payment, on the record of Thea C Spyer, who died February 5, 2009. On or about April 22, 2011 you were told that your claim had been disallowed because you do not meet the marriage requirements for widow’s benefits, or the lump sum death payment. On June 15, 2011, you asked for reconsideration stating that the Defense of Marriage Act and Social Security law violate the United States Constitution.

The issue to be decided is whether or not you are entitled to widow’s insurance benefits, and the lump

5a
sum death payment on the record of Thea C Spyer. This depends on whether you meet the requirements for entitlement under the Social Security Act and the regulations of the Social Security Administration.
Section 202(e)(1) of the Act permits entitlement of a widow (as defined in Section 216(c) whose spouse died fully insured if she:
(1) is unmarried, and
(2) has attained
(a) age 60, or
(b) age 50 and is disabled, and
(3) (a) filed a widow’s benefit application, or
(b) meets one of the exceptions to filing, and
(4) is not entitled to a benefit amount on her own record which equals or exceeds the insured’s primary insurance amount.
Section 216(c) indicates that a woman qualifies as a widow only if the marriage lasted at least nine months before the insured died.
Section 202(i) of the Social Security Act, as amended in 1981, provides that upon the death of a fully or currently insured individual who dies on or after September 1, 1981, $255.00 shall be paid in a lumpsum to the person, if any, determined by the Secretary to be the widow or widower of the deceased and to have been living in the same household as the deceased at the time of death.
If there is no such person, or if such person dies before receiving payment, then such amount is to be paid in the following order of priority:

6a
(1) To the widow or widower, other than a divorced spouse, who is entitled to benefits (or would have been so entitled had a timely application been filed) as a widow, widower, mother or father, based on the earnings record of the deceased individual for the month of death.
(2) In equal shares, to each child who is entitled to benefits (or would have been so entitled had a timely application been filed) based on the earnings record of the deceased individual for the month of death.
The Social Security Act provides that an individual is the insured’s widow or widower if she or he:
 is considered validly married to the insured under State law, or
 is not validly married but has the same status as a spouse to share in the insured’s intestate personal property, or
 meets the requirements of the Federal deemed marriage provision.
Individuals who are free to marry each other may enter into a valid marriage under the law of all States.
Public Law 104-199, Section 2, amends Chapter 115 of title 28, United States Code by adding Sec. 1738C after Sec. 1738B:
No state, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is

7a
treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.’ .
Public Law 104-199, Section 3, amended Chapter 1 of title 1, United States Code by adding the following definition of ‘marriage’ and ‘spouse’:
In 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.’ .
Section 216(a)(1) of the Act states: The term “spouse” means a wife as defined in subsection (b) or a husband as defined in subsection (f).
Section 216(a)(2) of the Act states: The term “surviving spouse” means a widow as defined in subsection (c) or a widower as defined in subsection (g).
Section 202(e) of the Social Security Act provides for the payment of monthly benefits to an otherwise qualified woman who meets the legal status requirement as widow under Section 216(h)(1) of the Act.
Section 216(h)(1)(A) of the Social Security Act provides that a claimant is the spouse of a worker for purposes of Social Security benefits if, under the law of the state of the worker’s domicile at the time of death, the claimant would be considered the worker’s spouse or would have the same status as spouse for

8a
purposes of inheriting personal property in the event the worker left no will.
When you applied for widow’s benefits, and the lump sum death payment, on the record of Thea C Spyer, you presented your marriage certificate issued October 28, 2010, which indicated you married Thea C Spyer on May 22, 2007 in Toronto Canada. You also submitted a death certificate for Thea C Spyer, which verified her date of death as February 05, 2009 and listed you as the surviving spouse of the deceased.
You do not qualify for benefits as the surviving spouse of Thea C Spyer, or the lump sum death payment, because you do not meet the definition of a widow as defined in the Social Security Act. A widow by definition is the surviving spouse of a deceased wage earner; a spouse by definition is someone of the opposite sex who is a husband or a wife. Although your marriage to Thea C Spyer is considered valid in Canada and in the state of her domicile at the time of death, Federal Regulations define the term marriage as: a legal union between one man and one woman as husband and wife. In your request, you state that you should be awarded benefits because the Defense of Marriage Act, and Social Security law violates the United States Constitution. We are not permitted to make judgment regarding the constitutionality of the law at this level of your request, and we must follow the law as written.
Accordingly, upon reconsideration, the initial determination is affirmed. The initial determination is correct and proper and in accordance with the pertinent provisions of the law and regulations.

9a Authority: Section (s) 202(e), 202(i), and 216 of the
Social Security Act. Public Law 104-199 Section (s) 2 and 3.
Social Security Administration
April 28, 2012 Enclosure(s):
Form SSA-662 SSA Pub No 70-10281

10a APPENDIX B WRITTEN REQUEST FOR EXPEDITED APPEAL

Claimant: Claimant’s SSN: Wage Earner: Wage Earner’s SSN:

Edith S. Windsor [redacted] Thea C. Spyer [redacted]

Pursuant to 20 C.F.R. §§ 405.701–405.725 (attached as Tab 4), Edith S. Windsor hereby requests expedited appeal of her claim for survivors benefits (including widow’s insurance benefits and the lump-sum death benefit). On April 28, 2012, the Social Security Administration (the “SSA”) rejected Ms. Windsor’s request for reconsideration. A copy of this rejection letter is attached as Tab 3.
Ms. Windsor does not dispute the findings of fact or the interpretation of the controlling law by the SSA. However, Ms. Windsor believes, consistent with her prior correspondence with the SSA (attached as Tab 2), that Section 3 of the Defense of Marriage Act, 1 U.S.C. § 7 (“DOMA”), and (insofar as it precludes a surviving spouse of a same-sex married couple from qualifying as a surviving spouse or widow) Social Security law violate the United States Constitution. Indeed, since Ms. Windsor filed her request for survivors benefits, every federal circuit, district, or bankruptcy court to have considered this issue in the non-immigration context has agreed that DOMA is unconstitutional for the very reasons asserted by Ms. Windsor. See Massachusetts v. Dep’t of Health and

11a
Human Servs., Gill v. Office of Pers. Mgmt., Nos. 102204, 10-2207, 10-2214 (1st Cir. May 31, 2012); Dragovich v. Dep’t of Treasury, No. C 10-1564 (CW), 2012 WL 1909603 (N.D. Cal. May 24, 2012); Golinski v. Office of Pers. Mgmt., 824 F. Supp. 2d 968 (N.D. Cal. 2012); In re Balas, 449 B.R. 567 (Bankr. C.D. Cal. 2011). Because DOMA is the only reason that Ms. Windsor was denied these SSA benefits to which she is otherwise entitled, she respectfully submits that her request for an expedited appeal should be granted.
Please copy Colin S. Kelly, Ms. Windsor’s attorney, on all correspondence with Ms. Windsor. A copy of Form SSA-1696-U4 (Appointment of Representative) is attached in Tab 2.
* * *
I declare under penalty of perjury that I have examined all the information in this written request, and on any accompanying statements or forms, and it is true and correct to the best of my knowledge.
Date: June 05, 2012 Edith S. Windsor Edith S. Windsor (Claimant) [redacted]
Colin S. Kelly Colin S. Kelly (Attorney) Paul, Weiss, Rifkind, Wharton
& Garrison, LLP 1285 Avenue of the Americas New York, NY 10019-6064 Tel. No.: (212) 373-3961 Fax No.: (212) 492-0961

12a

APPENDIX C

Form Approved OMB No. 0960-0045

SOCIAL SECURITY ADMINISTRATION STATEMENT OF CLAIMANT OR OTHER PERSON

Name of Wage Earner, SelfEmployed Person, or SSI Claimant

Social Security Number

Thea Spyer

[redacted]

Name of Person Mating Statement (if other than above wage earner, self-employed person, or SSI claimant)
Edith Windsor

Relationship to Wage Earner, Self-Employed Person, or SSI Claimant
SurSpo

Understanding that this statement is for the use of the Social Security Administration, I hereby certify that –

1. EAP Requirements

For the EAP to apply, all of the following requirements must be met:

A formal decision at the reconsideration level or higher has been made.

The EAP request is in writing.

The written request was filed timely, that is:

Within 60 days from date of receipt of the notice of determination or decision, unless good cause for late filing is found (GN 03101.020), or

13a After filing a timely request for a hearing or Appeals Council (AC) review but prior to a decision having been issued. The claimant is willing to enter into a written agreement with SSA in which he/she concedes that: SSA’s determination or decision was correct based on the law and the facts in the case; and The law, or a specific section of the law applicable in his/her case, is unconstitutional, and The adverse determination or decision is due solely to the unconstitutionality of the law which SSA followed, or The constitutional issue is the sole issue precluding the individual from receiving benefits or receiving a favorable determination in a nonclaim earnings discrepancy case.
1. Claimant’s Written Statement If, after explaining the requirements, the claimant decides to proceed with EAP, then the FO will: Obtain a signed statement indicating that he/she: Received an explanation of EAP. Agrees that the requirements in GN 03107.100D.1. are met; and Wishes to enter into an EAP agreement.
Form SSA-795 (12-2002) EF (12-2002) Destroy Prior Editions

14a

***

Paperwork Reduction Act Statement – This information collection meets the requirements of 44 U.S.C. §3507, as amended by Section 2 of the Paperwork
Reduction Act of 1995. You do not need to answer these questions unless we display a valid Office of Management and Budget control number. We estimate that it will take about 15 minutes to read the instructions, gather the facts, and
answer the questions. SEND THE COMPLETED FORM TO YOUR LOCAL SOCIAL SECURITY OFFICE. The office is listed under U. S.
Government agencies in your telephone directory or you may call Social
Security at 1-800-772-1213. You may send comments on our time estimate above to: SSA, 1338 Annex Building, Baltimore, MD 21235-0001. Send only comments relating to our time estimate to this address, not

I declare under penalty of perjury that I have examined all the information on this form, and on any accompanying statements or forms, and it is true and correct to the best of my knowledge. I understand that anyone who knowingly gives a false or misleading statement about a material fact in this information, or causes someone else to do so, commits a crime and may be sent to prison, or may face other penalties, or both.

SIGNATURE OF PERSON MAKING STATEMENT

Signature (First name, middle initial, last name) (Write in ink)
Sign Here> Edith S. Windsor

Date (Month, day, year)
August 9, 2012
Telephone Number (include Area Code)

[redacted]

Mailing Address (Number and street, Apt. No., P.O. Box, Rural Route)

[redacted]

City and State

ZIP Code

New York, NY

[redacted]

Witnesses are required ONLY if this statement has been signed by mark (X) above. If signed by mark (X), two witnesses to the signing who know the individual must sign below, giving their full addresses.

15a

1. Signature of Witness

2. Signature of Witness

Address (Number and street, Address (Number and street,

City, State and ZIP Code)

City, State and ZIP Code)

NEW YORK, N.Y. Jul 18 2012 21100
SSA FIELD OFFICE

 
 No. 12-307

IN THE
Supreme Court of the United States
____________________

UNITED STATES OF AMERICA, Petitioner,
v.

EDITH SCHLAIN WINDSOR

and

BIPARTISAN LEGAL ADVISORY GROUP OF THE UNITED STATES HOUSE OF REPRESENTATIVES,
Respondents.
___________________________________

On Writ of Certiorari to the United States Court of Appeals
for the Second Circuit
____________________________________

BRIEF ADDRESSING THE MERITS OF THE

STATE OF INDIANA AND 16 OTHER STATES

AS AMICI CURIAE IN SUPPORT OF

RESPONDENT THE BIPARTISAN LEGAL

ADVISORY GROUP OF THE U.S. HOUSE OF

REPRESENTATIVES

____________________________________

Office of the Attorney General

GREGORY F. ZOELLER

IGC South, Fifth Floor

Attorney General

302 W. Washington Street

THOMAS M. FISHER

Indianapolis, IN 46204

Solicitor General

(317) 232-6255

(Counsel of Record)

Tom.Fisher@atg.in.gov

Counsel for Amici Curiae

ADDITIONAL COUNSEL

LUTHER STRANGE Attorney General State of Alabama

MICHAEL C. GERAGHTY Attorney General State of Alaska

TOM C. HORNE Attorney General State of Arizona

SAM OLENS Attorney General State of Georgia

LAWRENCE G. WASDEN Attorney General State of Idaho

DEREK SCHMIDT Attorney General State of Kansas

BILL SCHUETTE Attorney General State of Michigan

TIMOTHY C. FOX Attorney General State of Montana

WAYNE STENEHJEM Attorney General State of North Dakota

SCOTT PRUITT Attorney General State of Oklahoma

ALAN WILSON Attorney General State of South Carolina

GREG ABBOTT ATTORNEY GENERAL STATE OF TEXAS

JOHN E. SWALLOW Attorney General State of Utah

KENNETH T. CUCCINELLI, II Attorney General State of Virginia

PATRICK MORRISEY Attorney General State of West Virginia

J.B. VAN HOLLEN Attorney General State of Wisconsin

i QUESTION PRESENTED
Whether Section 3 of the Defense of Marriage Act, 1 U.S.C. § 7, violates the equal protection component of the Due Process Clause of the Fifth Amendment.

ii
TABLE OF CONTENTS
QUESTION PRESENTED ....................................... i
TABLE OF AUTHORITIES ................................... iv
INTEREST OF THE AMICI STATES .................... 1
SUMMARY OF THE ARGUMENT ........................ 2
ARGUMENT ............................................................ 4
I. Ordinary Rational-Basis Scrutiny Applies to Congress’s Traditional Marriage Definition ....................................................... 4
A. Section 3 of DOMA classifies on the basis of a couple’s general procreative capacity, not their sexuality as such................................. 4
B. The traditional role of states in regulating marriage does not justify heightened scrutiny of Congress’s regulation of federal marriage benefits ................................................ 7
II. The Second Circuit Erred in Rejecting the Responsible Procreation Rationale for DOMA and Marriage Laws Generally........ 13

iii
A. The decision below undermines all laws predicated on a traditional definition of marriage ....................... 13
B. Marriage serves interests inextricably linked to the procreative nature of opposite-sex relationships ..................................... 16
III. Constitutionalizing Same-Sex Marriage Would Poison the Political Well.................. 21
CONCLUSION ....................................................... 26

iv
TABLE OF AUTHORITIES CASES Adarand Constructors, Inc. v. Pena,
515 U.S. 200 (1995)............................................. 1 Bd. of Trs. of Univ. of Alabama v. Garrett,
531 U.S. 356 (2001)............................................. 6 Bond v. United States,
131 S. Ct. 2355 (2011)....................................... 11 Citizens for Equal Prot. v. Bruning,
455 F.3d 859 (8th Cir. 2006)....................... 14, 15 Dandridge v.Williams,
397 U.S. 471 (1970)........................................... 24 Dep’t of Revenue v. Davis,
553 U.S. 328 (2008)............................................. 9 FERC v. Mississippi,
456 U.S. 742 (1982)........................................... 21 Feliciano v. Rosemar Silver Co.,
514 N.E.2d 1095 (Mass. 1987).......................... 14 Florida v. U.S. Dep’t Health & Human Servs.,
648 F.3d 1235 (11th Cir. 2011)......................... 12 Hernandez v. Robles,
855 N.E.2d 1 (N.Y. 2006) .................................. 14

v
CASES [CONT’D]
Hughes v. Alexandria Scrap Corp., 426 U.S. 794 (1976)............................................. 9
Johnson v. Robison, 415 U.S. 361 (1974)........................................... 15
Lewis v. Casey, 518 U.S. 343 (1996)............................................. 6
Lochner v. New York, 198 U.S. 45 (1905)............................................. 24
Massachusetts v. U.S. Dep’t of Health & Human Servs., 682 F.3d 1 (1st Cir. 2012) ..................... 3, 7, 8, 12
Morrison v. Sadler, 821 N.E.2d 15 (Ind. Ct. App. 2005) .................. 19
Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012)................................. 10, 12
Pedersen v. Office of Pers. Mgmt., No. 3:10-cv-1750, 2012 WL 3113883 (D. Conn. July 31, 2012) ......................................... 14
Reeves, Inc. v. Stake, 447 U.S. 429 (1980)............................................. 9
Roe v. Wade, 410 U.S. 113 (1973)........................................... 23

vi
CASES [CONT’D] Sevcik v. Sandoval,
No. 2:12-cv-00578, 2012 WL 5989662 (D. Nev. Nov. 26, 2012)............................................. 5 Singer v. Hara, 522 P.2d 1187 (Wash. Ct. App. 1974) .............. 17 Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942)..................................... 15, 16 Tigner v. Texas, 310 U.S. 141 (1940)........................................... 15 Turner v. Safley, 482 U.S. 78 (1987)............................................... 1 Washington v. Davis, 426 U.S. 229 (1976)............................................. 6 FEDERAL STATUTES 1 U.S.C. § 7 ............................................................... 1 OTHER AUTHORITIES 1 Annals of Cong. 436 (1789) (Joseph Gales ed., 1834) (statement of Rep. James Madison)............................................................ 10 142 Cong. Rec. H7441-03 (July 11, 1996) (Rep. Canady) ............................................................... 6

vii
OTHER AUTHORITIES [CONT’D]
142 Cong. Rec. H7480-05 (July 12, 1996) (Rep. Sensenbrenner) ................................................... 6
142 Cong. Rec. S10100-02 (Sept. 10, 1996) (Sen. Lott) ........................................................... 7
Barry Friedman, Valuing Federalism, 82 Minn. L. Rev. 317 (1997) .................................. 11
Brutus, To the Citizens of the State of New York (Jan. 31, 1788) .......................................... 10
Brutus, To the Citizens of the State of New York (Oct. 18, 1787) .......................................... 10
Cass R. Sunstein, Three Civil Rights Fallacies, 79 Cal. L. Rev. 751 (1991) ................................ 24
Centinel, To the Freemen of Pennsylvania (Oct. 5, 1787) ..................................................... 10
Cincinnatus, Reply to James Wilson’s Speech (Nov. 1, 1787) .................................................... 10
Deborah Jones Merritt, The Guarantee Clause and State Autonomy: Federalism for a Third Century, 88 Colum. L. Rev. 1 (1988)........................................................... 11, 21
George W. Dent, Jr., The Defense of Traditional Marriage, 15 J.L. & Pol. 581 (1999)................................................................. 18

viii
OTHER AUTHORITIES [CONT’D]
J. Harvie Wilkinson, III, Of Guns, Abortions, and the Unraveling Rule of Law, 95 Va. L. Rev. 253 (2009) ................................................. 23
Jack M. Balkin, Roe v. Wade: An Engine of Controversy, in What Roe v. Wade Should Have Said: The Nation’s Top Legal Experts Rewrite America’s Most Controversial Decision (Jack M. Balkin ed., 2005)........... 24, 25
John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L.J. 920 (1973)................................................................. 24
Jonathan Rauch, A More Perfect Union: How the Founding Fathers Would Have Handled Gay Marriage, The Atlantic, April 2004, available at www.theatlantic.com/ magazine/archive/2004/04/a-more-perfectunion/2925................................................... 21, 22
Laurence H. Tribe & Joshua Matz, The Constitutional Inevitability of Same-Sex Marriage, 71 Md. L. Rev. 471 (2012) ................. 2
Monte Neil Stewart, Judicial Redefinition of Marriage, 21 Can. J. Fam. L. 11 (2004) ........... 17
Patrick Henry, Speech at the Virginia Ratifying Convention (June 7, 1788)................ 10

ix
OTHER AUTHORITIES [CONT’D]
Peter J. Smith, Sources of Federalism: An Empirical Analysis of the Court's Quest for Original Meaning, 52 UCLA L. Rev. 217 (2004)........................................................... 10, 11
Ruth Bader Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N.C. L. Rev. 375 (1985)........................................................... 22, 23
Ruth Bader Ginsburg, Speaking in a Judicial Voice, 67 N.Y.U. L. Rev. 1185 (1992) ... 23, 24, 25
The Debate on the Constitution (Bernard Bailyn. ed. 1993) ............................................... 10
The Federalist No. 10 (James Madison) ................ 11
The Federalist No. 84 (Alexander Hamilton) ........ 10
U.S. Gen. Accounting Office, GAO-04-353R, Defense of Marriage Act: Update to Prior Report 1 (2004) .................................................... 1

1
INTEREST OF THE AMICI STATES
Congress and four-fifths of the states define marriage as the union of one man and one woman, consistent with the historical definition of marriage. Section 3 of DOMA defines the basic attributes of marriage for federal purposes and affects the availability of over 1,000 federal rights, privileges, and benefits tied to marital status. See 1 U.S.C. § 7; U.S. Gen. Accounting Office, GAO-04-353R, Defense of Marriage Act: Update to Prior Report 1 (2004). Similarly, few states promote marriage through labels alone; most join official recognition with access to particular rights, privileges, and benefits. See Turner v. Safley, 482 U.S. 78, 96 (1987) (“[M]arital status often is a precondition to the receipt of government benefits (e.g., Social Security benefits), property rights (e.g., tenancy by the entirety, inheritance rights), and other, less tangible benefits (e.g., legitimation of children born out of wedlock).”).
Because the same equal protection principles generally apply to state and federal laws, see Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 213-18, 226-27 (1995), it requires no great leap of logic to conclude that a judicial rejection of DOMA would erode constitutional support for similar state laws. Although DOMA does not license marriages or dictate marriage policy for states, the decision below invalidated the very definition of marriage long employed by most (until recently, all) states. If the

2
federal government may not adhere to a traditional definition of marriage as it confers exclusive benefits based on marital status, considerations of tradition or gradualism are unlikely to save state marriage laws. See Laurence H. Tribe & Joshua Matz, The Constitutional Inevitability of Same-Sex Marriage, 71 Md. L. Rev. 471, 477 & n.25 (2012).
The Amici States, therefore, have two interests at stake: (1) protecting their own power to define marriage in the traditional manner, and (2) clarifying equal protection principles that apply to marriage laws.
SUMMARY OF THE ARGUMENT
In the decision below, the Second Circuit invalidated a federal law that affirms marriage as it has been understood for centuries by every American colony and state. It agreed with the theory that DOMA targets a protected class (homosexuals) and cannot survive heightened scrutiny. Neither DOMA nor traditional state marriage laws, however, target homosexuals. Traditional marriage laws, of course, have a particular impact on homosexuals, but as this Court has long held, disparate impact is not the same as disparate treatment for purposes of equal protection doctrine. What is more, the traditional definition of marriage has always been about the need to encourage potentially procreative couples to stay together for the sake of the children their sexual union may produce, not about animus toward

3
homosexuals. Accordingly, ordinary rational basis is the proper level of scrutiny here.
Moreover, the traditional role of states in defining marriage does not justify heightened scrutiny of DOMA as applied to states that recognize same-sex marriages. See Massachusetts v. U.S. Dep’t of Health & Human Servs., 682 F.3d 1, 11-13 (1st Cir. 2012). It is improper to conflate the structural protections of liberty inherent in federalism with the individual rights and freedoms secured by the Fifth Amendment as the justification for a new, more rigorous level of equal protection scrutiny applicable to DOMA. No piece of our intricately plotted government of limited and enumerated powers divided among three branches should be carelessly used as a means to an end. In the long run, a novel use of federalism to leverage equal protection standards risks negation of structural constitutionalism as a separate guarantor of individual liberty.
The fundamental equal protection issue here asks whether there is anything wrong with adhering to the traditional definition of marriage. As long as some legitimate governmental purpose exists for conferring exclusive benefits on qualified oppositesex couples, DOMA is valid in all applications. Such a legitimate rationale is crystal-clear: opposite-sex couples are the only procreative relationships that exist, which means that such couples are the only ones the government has a need to encourage. No

4
other limiting principle for marriage exists; if this innately biological rationale is dismissed, the government has no coherent argument for denying marriage status to any number of persons who desire a committed relationship with each other.
Finally, divining a constitutional mandate for same-sex marriages would cause irredeemable harm to the Nation as a deliberate, democratic society. As has been shown by the entrenched discord inflicted by Roe v. Wade, judicial decisions that remove issues from the political branches of government can hinder, instead of facilitate, national consensus on contentious topics. Whether to reconstitute civil marriage so that its definition includes same-sex couples is currently the subject of robust nationwide debate. Arguments in support of scrapping the meaning of marriage that has existed for all time should be allowed to find fertile ground, or not, as part of the democratic process, not as untouchable constitutional law.
ARGUMENT
I. Ordinary Rational-Basis Scrutiny Applies to Congress’s Traditional Marriage Definition
A. Section 3 of DOMA classifies on the basis of a couple’s general procreative capacity, not their sexuality as such

5
The Second Circuit subjected Section 3 of DOMA to “intermediate scrutiny” where “a classification must be ‘substantially related to an important government interest,’” meaning that “the explanation must be ‘exceedingly persuasive.’” Supp. App. 23a (citations omitted). It did so based on its conclusion that DOMA discriminates against homosexuals, a “quasi-suspect” class. Supp. App. 23a. The amici states take no position on whether homosexuals constitute a specially protected class in the abstract. They reject, however, the view that Section 3 of DOMA, and by extension traditional state definitions of marriage, constitute facial discrimination against homosexuals.
Traditional marriage laws do not target homosexuals. See Sevcik v. Sandoval, No. 2:12-cv00578, 2012 WL 5989662, at *7 (D. Nev. Nov. 26, 2012) (“[T]he distinction is not by its own terms drawn according to sexual orientation. Homosexual persons may marry in Nevada, but like heterosexual persons, they may not marry members of the same sex.”). Rather, they draw a classification based on the relationship of two individuals to each other. Traditional marriage definitions are not by their terms concerned with any single trait of an individual seeking to marry, but instead with the relationship of traits between the two individuals. It is not the sexual orientation of the participants that counts, but the general capacity of the couple to reproduce through sexual intercourse.

6
While traditional marriage laws impact heterosexuals and homosexuals differently, that is not enough to treat such laws as creating classifications based on sexuality, particularly in view of the benign history of traditional marriage laws generally. A law’s disparate impact on a suspect class is insufficient to justify strict scrutiny absent evidence of discriminatory purpose. Washington v. Davis, 426 U.S. 229, 239, 241-42 (1976); see also Bd. of Trs. of Univ. of Alabama v. Garrett, 531 U.S. 356, 372-73 (2001) (“Although disparate impact may be relevant evidence of . . . discrimination . . . such evidence alone is insufficient even where the Fourteenth Amendment subjects state action to strict scrutiny.”); Lewis v. Casey, 518 U.S. 343, 375 (1996) (Thomas, J., concurring) (“We rejected a disparate-impact theory of the Equal Protection Clause altogether . . . .”).
In enacting DOMA, Congress was merely preserving the traditional definition of marriage for purposes of federal programs in the face of a new national movement to undermine that definition. 142 Cong. Rec. H7441-03 (July 11, 1996) (Rep. Canady) (“[L]awyers are soon likely to win the right for homosexuals to marry in Hawaii, and . . . attempt to ‘nationalize’ that anticipated victory under force of the Full Faith and Credit Clause of the U.S. Constitution.”); 142 Cong. Rec. H7480-05 (July 12, 1996) (Rep. Sensenbrenner) (“Because this United States Code does not contain a definition of marriage, a State's definition of marriage is

7
regularly utilized in the implementation of Federal laws and regulations. Such deference is possible now . . . because the difference in State marriage laws, although numerous, are relatively minor. . . . If Hawaii legalizes same-sex marriage, which the gentlewoman from Hawaii says is going to happen, then the basic qualification is altered.”); 142 Cong. Rec. S10100-02 (Sept. 10, 1996) (Sen. Lott) (“What the Hawaiian court decides could also affect the operations of the Federal Government. It could have an impact upon programs like Medicare, Medicaid, veterans’ pensions, and the Civil Service Retirement System.”).
It is surely implausible to infer that marriage was invented thousands of years ago as a device to discriminate against homosexuals. Nor does a decision to adhere to that longstanding traditional definition of marriage betray a purpose to discriminate on the basis of sexual orientation. Accordingly, there is no basis for applying any sort of heightened scrutiny.
B. The traditional role of states in regulating marriage does not justify heightened scrutiny of Congress’s regulation of federal marriage benefits
In a separate DOMA section 3 challenge, Massachusetts v. United States Department of Health & Human Services, 682 F.3d 1 (1st Cir. 2012), the First Circuit invoked a different rationale for

8
applying something other than ordinary rationalbasis scrutiny. According to that court, a test more rigorous than rational basis is warranted because with DOMA Congress was regulating in an area— marriage—traditionally reserved for states. Id. at 8, 10-11 (professing “not to create some new category of ‘heightened scrutiny’ for DOMA under a prescribed algorithm,” but to “undertake[] a more careful assessment of the justifications than the light scrutiny offered by conventional rational basis review”). The First Circuit’s purported concern for areas of traditional state regulation echoes Tenth Amendment doctrine, yet that court separately (and properly) rejected Massachusetts’ actual Tenth Amendment challenge to Section 3 of DOMA. See id. at 11-13. The First Circuit did not explain how federalism had any residual connection to the equal protection standard applicable to the federal government.
While the Amici States respect and appreciate efforts to police the proper boundaries between state and federal power, they object to the idea of leveraging individual rights claims using the Constitution’s structural safeguards. For if concern for state prerogatives justifies heightened Fifth Amendment equal protection scrutiny even where there is no Tenth Amendment violation, it would seem to follow that general concern for the limits of state authority in light of dormant Commerce Clause doctrine could ratchet up Fourteenth Amendment scrutiny even when there is no Commerce Clause

9
violation.1 Or, similarly, the mere assertion of a colorable preemption theory might be enough to justify “intensified scrutiny” of state laws under the Fourteenth Amendment even where state and federal statutes are ultimately deemed compatible.
Constitutional structure and individual rights protections both protect individual liberty, but they are properly kept distinct in order to preserve their independent vitality. The Constitution contains both safeguards to prevent different political excesses, and a doctrine that conflates them risks losing some measure of the liberty protection each was meant to achieve.
The Founders were acutely aware of the danger of concentrated power, particularly in the hands of a distant, unresponsive government. Their primary solution to this threat was structural: a national government of limited and enumerated powers
1 This would be especially troubling when states are alleged to discriminate against out-of-state commerce, but where Commerce Clause doctrine would permit such overt classifications. See, e.g., Dep’t of Revenue v. Davis, 553 U.S. 328 (2008) (upholding a state income tax exemption for interest earned from bonds issued by the taxing state); Reeves, Inc. v. Stake, 447 U.S. 429 (1980) (upholding a state policy that prohibited sales of cement produced by a state-owned cement plant to out-of-state residents); Hughes v. Alexandria Scrap Corp., 426 U.S. 794 (1976) (upholding a state law providing bounties to in-state scrappers with indemnity agreements but requiring more extensive documentation from out-of-state scrappers).

10
divided among three branches. See Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2577-78 (2012) (Roberts, C.J.); The Federalist No. 84 (Alexander Hamilton) (arguing that the Constitution was itself a bill of rights). Guarantees of individual rights, Alexander Hamilton argued, were “unnecessary” and “dangerous” as they might imply Congress possessed powers not granted. The Federalist No. 84 (Alexander Hamilton); see also 1 Annals of Cong. 436-40 (1789) (Joseph Gales ed., 1834) (statement of Rep. James Madison).
But as the Anti-Federalists argued, distance from the local electorate, collusion among the branches, and broad grants of power could undermine the effectiveness of structural guarantees. See Centinel, To the Freemen of Pennsylvania (Oct. 5, 1787), reprinted in 1 The Debate on the Constitution 52, 5262 (Bernard Bailyn. ed., 1993) [hereinafter The Debate]; Cincinnatus, Reply to James Wilson’s Speech (Nov. 1, 1787), reprinted in 1 The Debate, supra, 92-94; Brutus, To the Citizens of the State of New York (Oct. 18, 1787), reprinted in 1 The Debate, supra, 164, 168-69, 171-72; Brutus, To the Citizens of the State of New York (Jan. 31, 1788), reprinted in 2 The Debate, supra, 129, 133-35; Patrick Henry, Speech at the Virginia Ratifying Convention (June 7, 1788), reprinted in 2 The Debate, supra, 623, 635-36; see also Peter J. Smith, Sources of Federalism: An Empirical Analysis of the Court's Quest for Original Meaning, 52 UCLA L. Rev. 217, 239-46 (2004). The Anti-Federalists’ opposition to ratification yielded

11
guarantees that the first Congress would enact a Bill of Rights designed to address these political threats to liberty. See Smith, supra, at 246.
Experience has proved the genius of dual safeguards. On the one hand, federalism enhances individual liberty by limiting central authority, putting states into competition with one another, and bringing the organs of government into closer contact with the people. See, e.g., Bond v. United States, 131 S. Ct. 2355, 2364-65 (2011); Deborah Jones Merritt, The Guarantee Clause and State Autonomy: Federalism for a Third Century, 88 Colum. L. Rev. 1, 3-5 (1988). On the other hand, American difficulties with attacks on the fundamental rights of political, racial and other minorities at both the federal and state levels proved that structuralism could not prevent majority oppression entirely, as Madison warned. See The Federalist No. 10 (James Madison); Barry Friedman, Valuing Federalism, 82 Minn. L. Rev. 317, 367 (1997). The Bill of Rights (alone and through the Fourteenth Amendment) provides yet more protection of liberty.
The complementary relationship between structural protections and specific individual-rights guarantees is critical: any one mechanism to preserve liberty may be incomplete or even contain dangers that must be counteracted by another. Intermixing doctrines that animate structure and individual rights may thus obscure the value and

12

erode the effectiveness of these independent protections.

Because the role of structure in preserving

freedom is easily overlooked—see, e.g., Florida v.

U.S. Dep’t Health & Human Servs., 648 F.3d 1235,

1361-65 (11th Cir. 2011) (Marcus, J., dissenting)

(seeing the plaintiffs’ individual liberty concerns as

relevant to due process but not Tenth Amendment

arguments), aff’d in part & rev’d in part sub nom.

Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566

(2012)—courts should avoid implying that structural

provisions affect individual liberty only insofar as

they enhance or limit the operation of individual

rights guarantees. If federalism supports the cause

of individual liberty in this case, the Tenth

Amendment is the natural mode of giving effect to

structural principles.

Rerouting federalism

arguments, which the First Circuit rejected,

Massachusetts, 682 F.3d at 11-13, into a new equal

protection standard only reinforces the dangerous

misconception that only specific rights guarantees

are important for individual liberty.

13
II. The Second Circuit Erred in Rejecting the Responsible Procreation Rationale for DOMA and Marriage Laws Generally
A. The decision below undermines all laws predicated on a traditional definition of marriage
Although it addressed only the definition of marriage for purposes of federal law, the decision below casts doubt on all laws embodying the traditional definition of marriage. The panel concluded that “homosexuals compose a class that is subject to heightened scrutiny,” Supp. App. 23a, and that DOMA could not survive intermediate scrutiny on the basis, among others, of encouraging responsible procreation. Supp. App. 24a. It held that preserving this traditional objective of marriage is insufficient: “DOMA does not provide any incremental reason for opposite-sex couples to engage in ‘responsible procreation.’ Incentives for opposite-sex couples to marry and procreate (or not) were the same after DOMA was enacted as they were before.” Supp. App. 29a-30a.
The panel asked the wrong question: the correct constitutional query is simply whether DOMA upholds the rationales for traditional marriage. Implicit in the panel’s decision is the idea that the status quo is somehow deficient and that DOMA is impermissible because acknowledging same-sex marriages—the “remedy”—would not harm opposite-

14
sex marriages. See Supp. App. 30a (citing Pedersen v. Office of Pers. Mgmt., No. 3:10-cv-1750, 2012 WL 3113883, at *40-43 (D. Conn. July 31, 2012)). The panel gave short shrift to the long-accepted understanding of marriage as being fundamentally connected to the procreative nature of opposite-sex couples.
Asking how excluding same-sex couples benefits opposite-sex couples ignores the fact that DOMA was not an isolated legislative act. It expressly codified a preexisting understanding of marriage that occurs over 1,000 times in federal law. When originally conferring marriage rights and benefits, Congress undoubtedly assumed that it was incenting eligible couples—which at the time would have meant opposite-sex couples only—to marry. See, e.g., Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 867-68 (8th Cir. 2006) (recognizing as rational the practice of giving benefits to incentivize marriage); Hernandez v. Robles, 855 N.E.2d 1, 7 (N.Y. 2006) (plurality opinion) (same); Feliciano v. Rosemar Silver Co., 514 N.E.2d 1095, 1096 (Mass. 1987) (observing that extending a right to recover for loss of consortium to a cohabitating partner would “subvert[]” the state purpose of promoting marriage). Therefore, the panel below simply needed to ask why Congress sought to incentivize traditional marriages, and whether that rationale extends to same-sex couples.

15
The constitutionality of DOMA thus turns on whether Congress may expressly perpetuate its longassumed distinction between same-sex and oppositesex couples even when some states have rejected it. To state the obvious, if there is a sufficient reason for Congress to distinguish between opposite-sex and same-sex relationships, it is fitting to enact laws that promote marriages among opposite-sex couples alone. See Citizens for Equal Prot., 455 F.3d at 86768; see also Johnson v. Robison, 415 U.S. 361, 383 (1974) (“When . . . the inclusion of one group promotes a legitimate governmental purpose, and the addition of other groups would not, we cannot say that the statute’s classification of beneficiaries and nonbeneficiaries is invidiously discriminatory.”); Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 540 (1942) (“[T]he Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same.” (quoting Tigner v. Texas, 310 U.S. 141, 147 (1940))).
Conferring exclusive benefits on opposite-sex couples promotes a legitimate governmental purpose if any relevant differences exist between same-sex and opposite-sex couples. In striking down such benefits the decision below necessarily rejected the existence of a legitimate distinction between them and, in so doing, cast doubt on all traditional marriage laws.

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B. Marriage serves interests inextricably linked to the procreative nature of opposite-sex relationships
As explained in more detail in the Brief of Amici Curiae Indiana, Virginia, and 17 other States in Hollingsworth v. Perry, No. 12-144, the choice to promote traditional marriages is based on an understanding that civil marriage recognition arises from the need to encourage biological parents to remain together for the sake of their children. It protects the only procreative relationship that exists and makes it more likely that unintended children, among the weakest members of society, will be cared for.
1. Civil recognition of marriage historically has not been based on a state interest in adult relationships in the abstract. Marriage instead is predicated on the positive, important, and concrete societal interests in the procreative nature of opposite-sex relationships. Only opposite-sex couples can naturally procreate, and the responsible begetting and rearing of new generations is of fundamental importance to civil society. See Skinner, 316 U.S. at 541 (“Marriage and procreation are fundamental to the very existence and survival of the race.”).
Traditional marriage protects civil society by encouraging opposite-sex couples to remain together to rear the children they conceive. It creates the

17
norm that potentially procreative sexual activity should occur in a long-term, cohabitative relationship. It is the institution that provides the greatest likelihood that both biological parents will nurture and raise the children they beget, which is optimal for children and society at large. “[M]arriage’s vital purpose in our societies is not to mandate man/woman procreation but to ameliorate its consequences.” Monte Neil Stewart, Judicial Redefinition of Marriage, 21 Can. J. Fam. L. 11, 47 (2004).
This ideal does not disparage the suitability of arrangements where non-biological parents have legal responsibility for children. But these alternative relationships are exactly that— alternatives to the model. States may rationally conclude that, all things being equal, it is better for the biological parents also to be the legal parents, and that marriage promotes that outcome.
2. The fact that opposite-sex couples may marry even if they do not plan to have children or are unable to have children does not undermine this norm or invalidate the states’ interest in traditional marriage. See Singer v. Hara, 522 P.2d 1187, 1195 (Wash. Ct. App. 1974) (holding that marriage is justified by reference to procreation “even though married couples are not required to become parents and even though some couples are incapable of becoming parents and even though not all couples who produce children are married”). Such couples

18
reinforce and exist in accord with the traditional marriage norm. “By upholding marriage as a social norm, childless couples encourage others to follow that norm, including couples who might otherwise have illegitimate children.” George W. Dent, Jr., The Defense of Traditional Marriage, 15 J.L. & Pol. 581, 602 (1999).
Furthermore, it would be a tremendous intrusion on individual privacy to inquire of every couple wishing to marry whether they intended to or could procreate. States are not required to go to such extremes simply to prove that the purpose behind civil recognition of marriage is to promote procreation and child rearing in the traditional family context.
3. Fundamentally, even if childless married couples, no-fault divorce laws, or any other phenomena of contemporary society undermine the responsible procreation rationale, that still does not logically require recognition of same-sex marriages. A constitutional doctrine that requires the same benefits for same-sex and opposite-sex couples must supply a coherent rationale for government recognition of both, not simply attack traditional marriage as antiquated or somehow ill-considered. Proponents of same-sex marriage must either articulate a rationale for government recognition of their preferred relationships or be satisfied with arguing against any recognition of civil marriage.

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Yet there is no alternative coherent justification for marriage as a limited institution. Procreative potential provides the core utilitarian basis for state interest in marriage while providing at the same time a coherent limit on the definition of marriage. Absent this principle, there is no apparent reason why the state should care about mutual commitments among adult sexual partners any more than it cares about other voluntary relationships of two or more people. See Morrison v. Sadler, 821 N.E.2d 15, 29 (Ind. Ct. App. 2005) (lead opinion).
One rationale put forth is that, through same-sex marriage, government can support mutual commitment for purposes of raising children over which couples share joint parental rights. Yet such commitment rationale does not assume a sexual, much less a procreative, component to the marriage relationship, so it could encompass a variety of platonic relationships—even those that states may unquestionably prohibit from being sexual, such as incestuous or kinship relationships. A brother and sister, a father and daughter, an aunt and nephew, two business partners, or simply two friends could decide to form an “exclusive and permanent” household partnership featuring no sex whatever. Nor does commitment provide any inherent basis for limiting marriage to couples. Groups of three or more adults may desire to form a household and to remain exclusive and committed to one other based on mutual affection, or simply a desire to “co-parent” children. Once the link between marriage and

20
procreation is severed, there is no reason for government to prefer couples over larger groups.
Similarly, if the purpose of marriage is to promote stability and other social goods, there is still no governmental objective vindicated by limiting marriages to sexual partners, couples or unrelated individuals. Polyamorous or platonic kinship relationships might provide the same level of family stability and care for members of the family unit as that provided by same-sex couples. And government can facilitate governance, public order, and property ownership by recognizing social units of more than two adults perhaps even more efficiently than by recognizing couples only.
If the purpose of marriage is to recognize adult commitment or secure a broad array of social goods, a limitless number of rights claims could be set up that evacuate the term “marriage” of any meaning. The theory of traditional marriage, by contrast, focuses on the unique qualities of the male-female couple, particularly for purposes of procreating and rearing children under optimal circumstances. As such, it not only reflects and maintains the deeprooted traditions of our Nation, but also furthers public policy objectives, while containing an inherent limitation on the types of relationships warranting civil recognition.

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III. Constitutionalizing Same-Sex Marriage Would Poison the Political Well
Although this case targets only Congress’s definition of marriage for purposes of federal law, invalidation of that definition on equal protection grounds would imply collateral invalidity of identical state definitions. The Court should not cut short the robust democratic debates occurring across the country by deeming same-sex marriage to be a matter of federal constitutional law.
Keeping decisions about fundamental social issues within the ambit of state political processes helps inculcate democratic habits and values; the greater availability of political resolution encourages citizen participation, fosters political accountability, and enhances acceptance of the outcomes. See Deborah Jones Merritt, The Guarantee Clause and State Autonomy: Federalism for a Third Century, 88 Colum. L. Rev. 1, 2, 7-8 (1988); see also FERC v. Mississippi, 456 U.S. 742, 789-90 (1982) (O’Connor, J., concurring in part and dissenting in part).
The benefits of our federalist system resonate with especial clarity regarding the same-sex marriage debate—it is “[s]o well suited” to the issue “that it might almost have been set up to handle it.” Jonathan Rauch, A More Perfect Union: How the Founding Fathers Would Have Handled Gay Marriage, The Atlantic, April 2004, available at www.theatlantic.com/magazine/archive/2004/04/a-

22
more-perfect-union/2925. Some states have chosen to experiment with legal recognition of same-sex unions, while others have chosen to retain the centuries-old definition of marriage. The citizens of each state can observe the effects of the differing policies. They can attempt to persuade their fellow citizens as to the appropriate choice and vote for their desired policy and, if they are unhappy with the outcome of the democratic process, they retain the option of moving to a jurisdiction with laws more to their liking. “On certain social issues, such as abortion and homosexuality, people don’t agree and probably never will—and the signal political advantage of the federalist system is that they don’t have to. Individuals and groups who find the values or laws of one state obnoxious have the right to live somewhere else.” Id.
Preemptively short-circuiting the democratic process by announcing only one permissible policy choice by any government under the Constitution destroys these benefits and should not occur unless the Constitution clearly mandates the legitimacy of only one outcome. The Nation’s experience in the wake of Roe v. Wade bears this out. See Ruth Bader Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N.C. L. Rev. 375, 376 (1985) [hereinafter Thoughts on Autonomy] (remarking that Roe has “sparked public opposition and academic criticism, in part . . . because the Court ventured too far in the change it ordered and presented an incomplete justification for its action”);

23
J. Harvie Wilkinson, III, Of Guns, Abortions, and the Unraveling Rule of Law, 95 Va. L. Rev. 253, 293-95 (2009) (observing that Roe “shut down this process of legislative accommodation, polarizing the debate and making future compromise more difficult,” leading “[m]any scholars” to comment on the “Roe backlash” and the intense partisan divide that has resulted).
Outrage in the wake of Roe occurred despite increasing public support for abortion and a “marked trend in state legislatures ‘toward liberalization of abortion statutes.’” Ruth Bader Ginsburg, Speaking in a Judicial Voice, 67 N.Y.U. L. Rev. 1185, 1205 (1992) [hereinafter Judicial Voice] (quoting Roe v. Wade, 410 U.S. 113, 140 (1973)); see also Thoughts on Autonomy, supra, at 385 (“The political process was moving in the early 1970s, not swiftly enough for advocates of quick, complete change, but majoritarian institutions were listening and acting.”). But the Court’s “[h]eavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.” Thoughts on Autonomy, supra, at 385-86. Unlike the Court’s previous decisions concerning gender classifications, Roe provoked backlash because it “invited no dialogue with legislators” and “seemed entirely to remove the ball from the legislators’ court.” Judicial Voice, supra, at 1205.
Not only did Roe produce conflict, it was also an ineffective engine of social change. The Court’s abrupt adjustment of national policy “may have

24
prevented state legislatures from working out longlasting solutions based upon broad public consensus.” Cass R. Sunstein, Three Civil Rights Fallacies, 79 Cal. L. Rev. 751, 766 (1991). Professor Sunstein observed that Roe’s effectiveness “has been limited, largely because of its judicial source.” Id. at 766-67.
The Court’s bold substantive-rights approach in Roe invites comparison with Lochner v. New York, 198 U.S. 45 (1905). The decision reminded Professor John Hart Ely “of an era when the Court thought the Fourteenth Amendment gave it power to strike down state laws ‘because they may be unwise, improvident, or out of harmony with a particular school of thought.’” John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L.J. 920, 937-39 (1973) (quoting Dandridge v. Williams, 397 U.S. 471, 484 (1970)). For “precisely the point of the Lochner philosophy,” Ely remarked, is to “grant unusual protection to those ‘rights’ that somehow seem most pressing, regardless of whether the Constitution suggests any special solicitude for them.” Id. at 939.
Particularly with regard to the creation of individual rights that would preclude legislative policymaking at all levels, appropriate judicial restraint cautions courts to recognize that “they participate in a dialogue with other organs of government, and with the people as well.” Judicial Voice, supra, at 1198; see also Jack M. Balkin, Roe v.

25
Wade: An Engine of Controversy, in What Roe v. Wade Should Have Said: The Nation’s Top Legal Experts Rewrite America’s Most Controversial Decision 3, 24 (Jack M. Balkin ed., 2005) (“Courts do recognize rights and defend them from legislative abridgement. But those rights also arise out of politics; they are tested by politics, and they are modified by courts as a result of politics.”). Leaving room for legislatures to exercise their policymaking authority is particularly important amidst a dynamic process of citizen dialogue and legislative response. See Judicial Voice, supra, at 1206.
Shifting poll numbers on marriage policy and frequent political activity bearing on state marriage laws reveal a robust national debate on this very fundamental issue. Far from resolving anything, a judicial mandate without warrant in constitutional text or history that centralizes the controversy is likely to entrench social differences, undermine public confidence in courts as policy-neutral guardians of both republican governance and wellunderstood core political rights, and trigger a political backlash that could be with us for decades.

26

CONCLUSION The decision below should be reversed.

Respectfully submitted,

Office of the Attorney General IGC South, Fifth Floor 302 W. Washington Street Indianapolis, IN 46204 (317) 232-6255 Tom.Fisher@atg.in.gov

GREGORY F. ZOELLER Attorney General THOMAS M. FISHER Solicitor General
(Counsel of Record)
Counsel for Amici Curiae

Dated: January 29, 2013

 
 No. 12-307

IN THE
Supreme Court of the United States

————

UNITED STATES OF AMERICA, Petitioner,
v.

EDITH SCHLAIN WINDSOR, AND BIPARTISAN LEGAL ADVISORY GROUP OF THE UNITED STATES HOUSE OF REPRESENTATIVES,
Respondents. ————

On Writ of Certiorari to the United States Court of Appeals
for the Second Circuit

————

BRIEF ON THE MERITS OF AMICI CURIAE UNITED STATES SENATORS
ORRIN G. HATCH, SAXBY CHAMBLISS, DAN COATS, THAD COCHRAN, MIKE CRAPO,
CHARLES GRASSLEY, LINDSEY GRAHAM, MITCH McCONNELL, RICHARD SHELBY
AND ROGER WICKER IN SUPPORT OF RESPONDENT THE BIPARTISAN
LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES

————

MICHAEL L. STERN Counsel of Record
8529 Century Oak Court Fairfax Station, Va. 22039 (703) 786-7581 stern8529@verizon.net

January 29, 2013

Counsel for Amici Curiae

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002

TABLE OF CONTENTS Page
TABLE OF AUTHORITIES ................................ ii INTEREST OF AMICI CURIAE ........................ 1 INTRODUCTION AND SUMMARY OF THE ARGUMENT........................................................ 2
A. Passage of DOMA ....................................... 2 B. The Windsor Litigation .............................. 6 C. Amici’s Argument ....................................... 8 ARGUMENT........................................................ 10 I. Ample Federal Interests Supported the
Enactment of DOMA ................................ 10 A. Pre-DOMA federal law did not
recognize same-sex marriages ............ 11 B. Section 3 of DOMA promotes a sig-
nificant government interest in uniformity and certainty in the application of federal law .................... 16 C. Section 3 of DOMA protects the ability of states to preserve traditional marriage .................................... 21 II. Support for Traditional Marriage is not Unconstitutional “Animus” ...................... 23 CONCLUSION .................................................... 30
(i)

ii TABLE OF AUTHORITIES

CASES

Page(s)

Adams v. Howerton, 486 F. Supp. 1119 (C.D. Cal. 1980), aff’d 673 F.2d 1036 (9th Cir. 1982).............................................................. 12-13

Baehr v. Lewin, 852 P.2d 44 (Haw. 1993) ..2, 3, 5, 16

Burnet v. Harmel, 287 U.S. 103 (1932) ........... 19

Dean v. District of Columbia, 653 A.2d 307 (D.C. 1995) .................................................... 13

Eccles v. Comm’r, 19 T.C. 1049, aff’d, 208 F.2d 796 (4th Cir. 1953), nonacq. withdrawn, acq. 1957-2 C.B. 3 (1953)................. 14

Fleming v. Nestor, 363 U.S. 603 (1960)........... 26

Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810) .. 27

Godfrey v. Spano, 13 N.Y.3d 358 (2009) ......... 21

In re Marriage Cases, 183 P.3d 384 (Cal. 2008).............................................................. 24

Lawrence v. Texas, 539 U.S. 558 (2003) .......... 10, 28

Lyeth v. Hoey, 305 U.S. 188 (1938).................. 19

Massachusetts v. U.S. Dep’t of HHS, 682 F.3d 1 (1st Cir. 2012).................................... 28, 29

Murphy v. Ramsey, 114 U.S. 15 (1885) ........... 13

Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012).............................................................. 24, 25

Romer v. Evans, 517 U.S. 620 (1996) .........24, 25, 26

Sosna v. Iowa, 419 U.S. 393 (1975) ................. 15

U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528 (1973) ............................................................ 25, 26

iii TABLE OF AUTHORITIES—Continued
Page(s)
United States v. Constantine, 296 U.S. 287 (1935) ............................................................ 28
Windsor v. United States, 699 F.3d 169 (2d Cir. 2012) .....................................................6, 7, 24
CONSTITUTIONAL PROVISIONS
U.S. Const. amend. V................................7, 9, 24, 30 U.S. Const. amend. XIV, § 1 ............................ 29 U.S. Const. art. IV, § 1..................................... 4
STATUTES
26 U.S.C. § 2056(a) .......................................... 6, 13 26 U.S.C. § 6013 ............................................... 13-14 28 U.S.C. § 530D .............................................. 6 38 U.S.C. § 101(31) .......................................... 13 42 U.S.C. § 416(b) ............................................ 13 Defense of Marriage Act, § 2, 28 U.S.C.
§ 1738C ....................................................2, 5, 9, 22 Defense of Marriage Act, § 3, 1 U.S.C. § 7 ..... passim Haw. Rev. Stat. Ann. § 572B (West 2013) ...... 21 Revenue Act of 1948, Pub. L. No. 80-471, 62
Stat. 110 (1948) ............................................ 19-20
OTHER AUTHORITIES
2 Joseph Story, Commentaries on the Constitution of the United States (1st ed. 1833).............................................................. 27

iv TABLE OF AUTHORITIES—Continued
Page(s)
32 Weekly Comp. Pres. Doc. (Sept. 30, 1996) .. 2
142 Cong. Rec. 16796 (1996) ............................ 12
142 Cong. Rec. 17076 (1996)............................ 12
142 Cong. Rec. 17094 (1996)............................ 2
142 Cong. Rec. 22446 (1996)............................ 12
142 Cong. Rec. 22452 (1996) ............................ 29
142 Cong. Rec. 22459 (1996)............................ 16
142 Cong. Rec. 22467 (1996)............................ 2, 29
142 Cong. Rec. 23186 (1996)............................ 12
The American Heritage Dictionary (2d ed. 1985).............................................................. 15, 18
Black’s Law Dictionary (5th ed. 1979) .......12, 14, 18
Defense of Marriage Act: Hearing on H.R. 3396 Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 104th Cong. (1996) ..........................4, 5, 16, 17, 18
The Defense of Marriage Act: Hearing on S. 1740 Before the S. Comm. on the Judiciary, 104th Cong. (1996) .................... passim
Employment Nondiscrimination Act of 1995, S. 932, 104th Cong. (1995) ........................... 29
H.R. Rep. No. 104-664 (1996), reprinted in 1996 U.S.C.C.A.N. 2905 ..............................3, 5, 12
Letter from Eric H. Holder, Jr., Att’y Gen., to Hon. John A. Boehner, Speaker, U.S. House of Representatives (Feb. 23, 2012) ... 6

v TABLE OF AUTHORITIES—Continued
Page
Revenue Act of 1948, S. Rep. No. 80-1013 (1948), reprinted in 1948 U.S.C.C.A.N. 1163..........................................................14, 20, 23
Staff of Joint Comm. on Taxation, 97th Cong., Background and Description of Administration Proposal Relating to Estate and Gift Taxes (Joint Comm. Print 1981).............................................................. 14
U.S. Gen. Accounting Office, GAO-04-353R, Defense of Marriage Act (Jan. 23, 2004) ..... 11
Webster’s Third New International Dictionary (3d ed. 1986)................................12, 14, 18

INTEREST OF AMICI CURIAE 1
Amici Orrin G. Hatch, Saxby Chambliss, Dan Coats, Thad Cochran, Mike Crapo, Charles Grassley, Lindsey Graham, Mitch McConnell, Richard Shelby and Roger Wicker are sitting United States Senators who served in the 104th Congress House or Senate and voted for passage of the Defense of Marriage Act (DOMA) in 1996. As such, they have an interest in the constitutionality of Section 3 of DOMA, which defines the terms “marriage” and “spouse” for purposes of federal law, and in informing the Court of the important government interests that it was enacted to serve.
One of the Amici, Senator Orrin G. Hatch, chaired the Senate Judiciary Committee, which had jurisdiction over the DOMA legislation. In considering DOMA in 1996, the committee heard from witnesses regarding the potential recognition of same-sex marriage by the highest court in the State of Hawaii and the impact that this would have on federal law. The committee also heard testimony from constitutional scholars supporting the constitutionality of DOMA,2 and Senator Hatch received written assur-
1 Written consent to the filing of this brief has been received from all parties and filed with the Clerk of the Court. No counsel for a party authored this brief in whole or in part, and no person, other than Amici and their counsel, made any monetary contribution to the preparation or submission of this brief.
2 Two witnesses, Professor Lynn D. Wardle and Mr. David Zweibel, testified that Section 3 of DOMA, which is at issue in this case, was clearly within Congress’s constitutional power. The Defense of Marriage Act: Hearing on S. 1740 Before the S. Comm. on the Judiciary, 104th Cong. 37-39, 54 (1996) (“Senate Hearing”). Another witness, Professor Cass R. Sunstein, testified in opposition to DOMA; however, Professor Sunstein’s

2
ance from the Department of Justice that it saw no constitutional infirmity in the statute.3
Amici are particularly concerned that the Department of Justice, having repeatedly assured Congress of DOMA’s constitutionality during the legislative process, now seeks to have the law judicially invalidated. If the Department believed that there was an inadequate federal interest to justify DOMA, the time to speak was in 1996, when Congress gave careful consideration to the need for DOMA. Rather than urging the courts to give appropriate deference to an Act of Congress, as befits its proper role in our system of government, the Department now groundlessly impugns the motives of the overwhelming bipartisan majority that supported DOMA.
INTRODUCTION AND SUMMARY OF THE ARGUMENT
A. Passage of DOMA. DOMA was enacted in 1996 after passing each house of Congress with more than 80% of the votes in favor, an overwhelming and bipartisan majority.4 President Clinton signed DOMA into law on September 21, 1996. 32 Weekly Comp. Pres. Doc. 1891 (Sept. 30, 1996).
The enactment of DOMA was in large part a direct legislative response to Baehr v. Lewin,5 a 1993 deci-
testimony related solely to Section 2, and he noted that he did not believe that Section 3 was unconstitutional. Id. at 44 n.1.
3 Senate Hearing at 2. 4 The House approved the bill by a vote of 342-67, while the Senate passed it by a vote of 85-14. 142 Cong. Rec. 17094, 22467 (1996). 5 852 P.2d 44 (Haw. 1993).

3
sion of the Hawaii Supreme Court. The Baehr decision had found that denials of marriage licenses to same-sex couples were subject to strict scrutiny under the Hawaii Constitution, and it had remanded the case to the lower courts to determine whether the state could meet that burden. At the time Congress considered DOMA, it appeared that the Hawaii courts were “on the verge of requiring that State to issue marriage licenses to same-sex couples.” H.R. Rep. No. 104-664, at 2 (1996), reprinted in 1996 U.S.C.C.A.N. 2905, 2906 (“House Report”).
Congress’s concern was not with Hawaii’s marriage laws. See House Report at 5 (House Judiciary Committee “expresses no opinion on the propriety of the ruling in Baehr”). Instead, Congress was concerned with the impact that recognition of same-sex marriage in one or more states would have on other states and on the federal government. House Report at 6-7. The likely effects were explored in hearings held before the House and Senate Judiciary Committees, which showed (1) Baehr was merely one facet of an organized litigation strategy designed to secure nationwide recognition of same-sex marriage;6 and (2)
6 At a May 15, 1996 hearing before the House Judiciary Subcommittee on the Constitution, a 23-page memorandum from the Lambda Legal Defense and Education Fund, Inc. (LLDEF) was placed into the record. This memorandum laid out a strategy for using the expected legal victory in Hawaii to obtain recognition of same-sex marriages in other states and by the federal government:
Many same-sex couples in and out of Hawaii are likely to take advantage of what would be a landmark victory. The great majority of those who travel to Hawaii to marry will return to their homes in the rest of the country expecting full legal recognition of their unions. Despite a powerful

4
legal experts, both for and against DOMA, agreed that recognition of same-sex marriage in one or more states would likely have unpredictable and inconsistent legal impacts on other states and the federal government.7 Indeed, same-sex marriage ad-
cluster of expectations, logistics, rights, constitutional obligations, and federalist imperatives, these questions are likely to arise: Will these people’s validly-contracted marriages be recognized by their home states and the federal government, and will the benefits and responsibilities that marriage entails be available and enforceable in other jurisdictions?
We at Lambda believe that the correct answer to these questions is “Yes.”
Defense of Marriage Act: Hearing on H.R. 3396 Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 104th Cong. 15 (1996) (“House Hearing”) (emphasis added).
7 For example, Professor Michael W. McConnell of the University of Chicago Law School opined that it was “not unlikely” that couples who entered into same-sex marriages in Hawaii would be entitled to legal recognition in other states under the Full Faith and Credit Clause, U.S. Const. art. IV, § 1, although he allowed that it was “not certain” and “[i]t is possible that states with laws against same-sex unions will be able to resist recognition of these marriages under the so-called ‘public-policy’ exception.” Senate Hearing at 57. Professor Cass R. Sunstein, also of the University of Chicago Law School, thought it was “unlikely” that the Full Faith and Credit Clause would require the recognition of out-of-state marriages, but he acknowledged that it was not clear how this “traditional view” could be squared with the language of the clause. Id. at 44-45. All legal experts agreed that if the public policy exception applied, it would mean varying results in different states.
As Professor Lynn D. Wardle of Brigham Young University, an expert in family law, testified: “[T]his is the kind of issue that is best resolved before the cases arise. Waiting until after some state legalizes same-sex marriage and a flood of cases are filed demanding that same-sex unions formed in such as state

5
vocates hoped to use the “legal and practical nightmare” created by this situation to generate pressure for uniform nationwide recognition of same-sex marriages. See House Hearing at 19. The House Judiciary Committee thus “described Baehr as part of an ‘orchestrated legal assault being waged against traditional heterosexual marriage.’” Supp. App. 37a (quoting House Report at 2-3).
To address these problems, DOMA has two simple provisions. Section 2, 28 U.S.C. § 1738C, provides a uniform national rule under which states may, but are not required to, recognize same-sex marriages entered into in other states. Section 3, which is at issue in this case, defines, for purposes of federal law, the terms “marriage” as “mean[ing] only a legal union between one man and one woman as husband and wife” and “spouse” as referring “only to a person of the opposite sex who is a husband or wife.” 1 U.S.C. § 7.
By adopting Section 3, Congress sought to avoid the federal government having to litigate, on a statute by statute and state by state basis, whether (a) federal law provided benefits for same-sex marriages that were valid under state law and if so, (b) the particular marriage in question was valid under state law. As Professor Lynn Wardle testified before the Senate Judiciary Committee, “Section 3 eliminates what could be a lot of very messy and
be treated as ‘marriages’ for purposes of federal laws would be very unwise. It would invite a multitude of unnecessary litigation, and create confusion, inconsistency, and unfairness. Different courts in different districts and circuits might reach contradictory conclusions adding to the uncertainty.” Id. at 3334.

6
costly litigation for the federal government.” Senate Hearing at 34.
B. The Windsor Litigation. Respondent Edith Windsor and Thea Clara Spyer were issued a certificate of marriage in Canada in 2007. Ms. Windsor resided in New York at the time of Ms. Spyer’s death in 2009. In 2010, she commenced this action against the United States, claiming Section 3 of DOMA unconstitutionally denied her the benefit of the marital estate tax deduction, 26 U.S.C. § 2056(a). Windsor v. United States, 699 F.3d 169 (2d Cir. 2012), reproduced in the Appendix to the Supplemental Brief for the United States (“Supp. App.”) at 1a-2a.
The United States defended the case until February 23, 2011, when Attorney General Holder informed Congress, pursuant to 28 U.S.C. § 530D,8 the Department of Justice would no longer defend the constitutionality of DOMA. See Letter from the Hon. Eric H. Holder to the Hon. John A. Boehner (Feb. 23, 2011), reproduced in the Joint Appendix (“J.A.”) at 183. Among the reasons assigned by the Attorney General for this abrupt and “unprecedented,” Supp. App. 36a, change of position was the claim that DOMA’s legislative record “contains numerous expressions reflecting moral disapproval of gays and lesbians and their intimate and family
8 This statute requires the Attorney General to provide notice to designated congressional officials, including the Senate and House leadership, the chairs and ranking members of the Senate and House Judiciary Committees, the Senate Legal Counsel and the General Counsel of the House, when the Department of Justice refuses to defend the constitutionality of a federal statute.

7
relationships – precisely the kind of stereotype- based thinking and animus the Equal Protection Clause is designed to guard against.” J.A.191.
Following the Attorney General’s announcement, the Department of Justice “switch[ed] sides to advocate that the statute be ruled unconstitutional” in Windsor. Supp. App. 4a. The Bipartisan Legal Advisory Group of the U.S. House of Representatives (“BLAG”) intervened to conduct the defense of the statute.
The district court granted summary judgment in favor of Ms. Windsor, holding that Section 3 of DOMA violated equal protection because it was supported by no “rational basis.” Supp. App. 3a. On appeal, the Second Circuit affirmed. The panel first held that Ms. Windsor had standing because it predicted that New York courts would recognize her Canadian marriage in 2009, although New York itself did not license same-sex marriages until 2011. Id. at 7a.
On the merits, a majority of the Second Circuit panel declined to consider whether Section 3 of DOMA satisfies rational basis review. Id. at 14a. Instead, it applied intermediate scrutiny and found Section 3 unconstitutional because BLAG could not offer “an exceedingly persuasive justification” for it. Id. at 26a. Dissenting on the merits, Judge Straub found that rational basis review should be applied and that Section 3 satisfied this standard for at least two reasons: (1) it promotes traditional marriage, which furthers a legitimate government interest in encouraging responsible procreation and childrearing and (2) it promotes the federal interest in preserving the uniformity of federal law and maintaining the

8
status quo with respect to the definition of marriage. Supp. App. 76a-77a.
C. Amici’s Argument. In this brief Amici explain a number of significant federal interests underlying DOMA. Although there are important interests served by DOMA, such as preserving the connection between marriage and procreation, which also underlie the decision of states to preserve the traditional definition of marriage as between one man and one woman, our focus here is on specifically federal interests that were considered and explained throughout DOMA’s legislative history, but were ignored, misunderstood, or summarily dismissed below:
• Pre-DOMA federal law did not recognize same-sex marriages. Rather than dramatically changing federal law, as the Second Circuit majority assumed, Section 3 merely clarified and re-affirmed the existing federal definition of marriage. It is apparent, for example, that the pre-DOMA marital estate tax deduction at issue in this case did not apply to same-sex couples.
• Section 3 of DOMA promotes a significant government interest in uniformity and certainty in the application of federal law. As the legislative history of DOMA amply substantiates, efforts to obtain judicial recognition of same-sex marriage at the state level, as was occurring in Hawaii at the time, posed a unique and unprecedented threat to the stability and uniformity of federal law. In enacting DOMA, Congress responded to this challenge by preserving the status quo with

9
respect to non-recognition of same-sex marriage at the federal level, thereby averting state by state and statute by statute litigation seeking federal benefits, and the likelihood of inconsistent and unfair results.
• By taking away the incentive of federal benefits, Congress protected the ability of states to preserve traditional marriage. Section 2 of DOMA recognizes the authority of each state to decide for itself whether to recognize same-sex marriage. If federal benefits were available for same-sex couples validly married under state law, however, federal law would serve as an incentive for state recognition of same-sex marriage, either by legislative or judicial action. By re-affirming that the federal definition of marriage does not include samesex unions, Section 3 ensured that federal benefits will not be used to undermine traditional marriage at the state level.
In addition, Amici respond to the argument that DOMA violates equal protection because it was allegedly motivated by unconstitutional “animus.” Notwithstanding the Attorney General’s belated discovery of DOMA’s allegedly unconstitutional motivation, this argument is flawed because legislative motivation is not a basis for setting aside a federal statute supported by legitimate and rational government interests. This Court’s precedents do not support evaluating the constitutionality of a federal statute based on subjective characterizations of the motives of individual legislators. In any event, support for traditional marriage cannot be equated to “animus,” as Justice O’Connor observed in her con-

10
currence in Lawrence v. Texas, 539 U.S. 558, 585 (2003). It would be particularly inappropriate to invalidate DOMA based on the alleged motivations of individual supporters, given that the statute was passed with overwhelming bipartisan support and signed into law by President Clinton.
Amici therefore respectfully urge this Court to reverse the judgment of the court below, and uphold the constitutionality of Section 3 of DOMA.
ARGUMENT
I. Ample Federal Interests Supported the Enactment of DOMA
The Second Circuit rejected all of the proffered justifications for DOMA, finding that BLAG failed to meet the burden of establishing an “exceedingly persuasive” rationale for the law.9 Supp. App. 26a. The court’s conclusion was based in part on the following premises: (1) that pre-DOMA federal law recognized same-sex marriages for purposes of federal benefits to the extent such marriages were valid under state law; (2) that Congress had no substantial interest in promoting uniformity in the application of federal law; and (3) that there was no connection between
9 The Second Circuit applied intermediate scrutiny as the standard of review, implicitly conceding that it would be difficult to justify striking down DOMA under a rational basis standard. Supp. App. 14a (court “decline[s] to take issue with the dissent, which explains why Section 3 of DOMA may withstand rational basis review”). Although Amici strongly believe that rational basis is the appropriate standard of review, we address here the interests advanced by DOMA, rather than the standard of review to be applied.

11
Section 3 of DOMA and Congress’s interest in preserving a traditional definition of marriage. As discussed below, each of these premises is demonstrably incorrect.
(A). Pre-DOMA federal law did not recognize samesex marriages. The court below asserted that “Windsor was denied the benefit of the spousal deduction * * * solely because [of] Section 3 of the Defense of Marriage Act * * *.” Supp. App. 2a. The logical implication of this assertion is that absent the passage of DOMA, Windsor would have been entitled to claim the spousal deduction. The court, however, makes virtually no effort to substantiate this proposition.
As of the enactment of DOMA, there were 1,049 federal statutory provisions in which benefits, rights and privileges were contingent on marital status or in which marital status was a factor.10 When these provisions were enacted, same-sex marriage was not recognized in any state, and Congress clearly did not contemplate that the term “marriage” in these statutes would encompass same-sex unions. As the dissent below observed, “[t]he history of federal legislation in respect of the meaning of marriage or spouse was never even suggested to mean anything other than the lawful union of one man and woman for all federal purposes.” Supp. App. 34a.
The legislative history of DOMA makes clear Congress’s understanding that Section 3 merely clarified and restated the existing definition of “marriage” in federal law in response to the fact that the Hawaiian courts were on the verge of recognizing a right to
10 See U.S. Gen. Accounting Office, GAO-04-353R, Defense of Marriage Act 1 (Jan. 23, 2004).

12
same-sex marriage under that state’s constitution. See House Report at 10 (“Until the Hawaii situation, there was never any reason to make explicit what has always been implicit—namely, that only heterosexual couples could get married.”); id. (“[T]he Committee believes that it can be stated with certainty that none of the federal statutes or regulations that use the words ‘marriage’ or ‘spouse’ were thought by even a single Member of Congress to refer to same-sex couples”); 142 Cong. Rec. 22446 (1996) (Sen. Byrd) (“We are not overturning the status quo in any way, shape or form. On the contrary, all this bill does is reaffirm for purposes of Federal law what is already understood by everyone.”); id. at 23186 (Sen. Dorgan) (“For thousands of years, marriage has been an institution that represents a man and a woman, and I do not support changing the definition of marriage or altering its meaning.”); id. at 16796 (Rep. McInnis) (“If we look at any definition, whether its Black’s Law Dictionary, whether it is Webster’s Dictionary, a marriage is defined as [a] union between a man and woman * * *.”); id. at 17076 (Rep. Canady) (“all we are doing * * * is reaffirming what everyone has always understood by marriage, what everyone has always understood by the term ‘spouse’”).
Congress’s understanding of pre-DOMA law was entirely reasonable and supported both by judicial authority11 and by expert testimony received during
11 See Adams v. Howerton, 673 F.2d 1036, 1039 (9th Cir. 1982) (holding, for purposes of federal immigration laws applying to the “spouse” of a U.S. citizen, that a same-sex marriage, even though allegedly valid under state law, would not be a “marriage” within the meaning of federal law); Adams v. Howerton, 486 F. Supp. 1119, 1123 (C.D. Cal. 1980) (“Congress, as a matter

13
the legislative process.12 No evidence has been advanced to suggest that the terms “marriage” or “spouse” encompassed same-sex unions before DOMA was enacted, either as a matter of ordinary language or as a matter of technical statutory usage.
That pre-DOMA federal law embraces the traditional understanding of “marriage” can be seen plainly by looking at the language of particular statutes.13 Most significantly for the present case, it is apparent that a “surviving spouse” entitled to a deduction for federal estate taxes under 26 U.S.C. § 2056(a) is the survivor of the “husband and wife” entitled to file a joint tax return under 26 U.S.C.
of federal law, did not intend that a person of one sex could be a ‘spouse’ to a person of the same sex for immigration law purposes”), aff’d 673 F.2d 1036 (9th Cir. 1982); Dean v. District of Columbia, 653 A.2d 307, 314 (D.C. 1995) (For purposes of District of Columbia’s marriage statute, “’marriage’ is limited to opposite-sex couples.”); see also Murphy v. Ramsey, 114 U.S. 15, 44 (1885) (referring to the “idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony [as] the sure foundation of all that is stable and noble in our civilization”).
12 Professor Wardle testified before the Senate Judiciary Committee: “[I]f some state legalizes same-sex marriage, that would radically alter a basic premise upon which the presumption of adoption of state domestic relations law was based—namely the essential fungibility of the concepts of ‘marriage’ from one state to another. Section 3 clarifies the premise upon which two centuries of federal legislation using marriage terms has been predicated.” Senate Hearing at 27 n.4.
13 See, e.g., 42 U.S.C. § 416(b) (For Social Security Act a “‘wife’ means the wife of an individual, but only if she * * * is the mother of his son or daughter [or] was married to him * * *”) (emphasis added); 38 U.S.C. § 101(31) (For purposes of veteran’s benefits, “’spouse’ means a person of the opposite sex”).

14
§ 6013.14 The legislative history of the marital estate tax deduction likewise confirms that the deduction was understood to apply to the surviving spouse of a marriage consisting of one man and one woman.15 This was entirely consistent with the ordinary meaning of the word “marriage” at all relevant times.16
14 For example, in Eccles v. Comm’r, 19 T.C. 1049, 1053-054, aff’d, 208 F.2d 796 (4th Cir. 1953), nonacq. withdrawn,, acq. 1957-2 C.B. 3 (1957), a case cited by the Second Circuit, see Supp. App. 5a, the Tax Court noted the “inconsistency” that would arise if the determination of whether a couple was “husband and wife” for purposes of filing joint tax returns were different than the determination of whether they were married for purposes of taking the marital estate tax deduction.
15 See, e.g., Staff of Joint Comm. On Taxation, 97th Cong., Background and Description of Administration Proposal Relating to Estate and Gift Taxes 32 (Joint Comm. Print 1981) (“Proponents of increased marital deductions argue that there should be no tax imposed on transfers between spouses since a husband and wife should be treated as a single economic unit for estate and gift tax purposes, as they generally are for income tax purposes”); Revenue Act of 1948, S. Rep. No. 80-1013, at 27 (1948), reprinted in 1948 U.S.C.C.A.N. 1163, 1189 (“S. Rep. No. 80-1013”) (“The most obvious instance of the failure to attain equalization results from the use of life tenancies in the common-law States. In this situation the husband transfers or bequeaths to his wife a life estate, with remainder over to the children. At his death the whole of the estate is taxed, but at the wife’s death there is no tax on the cessation of her life estate. On the other hand in a community-property State, the husband may not by his will dispose of his wife’s interest in community property.”).
16 For example, at the time of the Economic Recovery Tax Act of 1981, which established the current unlimited marital estate tax deduction, Black’s Law Dictionary defined “Marriage” as “Legal union of one man and one woman as husband and wife.” Black’s Law Dictionary 876 (5th ed. 1979); see also Webster’s Third New International Dictionary 1384 (1976) (“The state of

15
Without directly addressing the understanding of pre-DOMA law articulated by Congress and by the dissent, or even considering the pre-DOMA meaning of the marital estate tax deduction, the majority below simply assumed that federal law would automatically recognize any marriage valid under state law. The explanation for this assumption apparently lies in the following sentence from the court’s opinion: “To the extent that there has ever been ‘uniform’ or ‘consistent’ rule [sic] in federal law concerning marriage, it is that marriage is ‘a virtually exclusive province of the States.’” Supp. App. 25a (quoting Sosna v. Iowa, 419 U.S. 393, 404 (1975)).
There is a logical chasm between this general assertion and the conclusion that federal law uses the term “marriage” as an empty vessel into which the states can pour any relationship they please. The latter is not, and never has been, true. If it were the case, it would be irrational for Congress to condition any benefits on the existence of a marital relationship because one state’s definition of marriage might be completely distinct from another’s. Accordingly, interpreting the term “marriage” (and related terms) in federal law requires some understanding of the meaning of that term apart from state law.17
The evidence discussed above strongly suggests that Congress was correct in concluding that the preDOMA federal definition of “marriage” did not extend to same-sex unions. To be sure, it may be impossible
being united to a person of the opposite sex as husband or wife”); The American Heritage Dictionary 768 (2d ed. 1985) (“The legal union of a man and woman as husband and wife”).
17 See supra, note 12.

16
to answer with certainty the question of how courts would have interpreted every federal statute in the absence of DOMA, given that no state had recognized same-sex marriage at the time of DOMA’s enactment. But avoiding such uncertainty is one of the reasons that Congress was fully justified in enacting Section 3 of DOMA.
(B). Section 3 of DOMA promotes a significant government interest in uniformity and certainty in the application of federal law. As the Second Circuit recognized, the legislative history of DOMA reflects that Section 3 was designed in significant part to ensure uniformity of eligibility for federal benefits among the states. Supp. App. 24a-25a & n.5. For example, Senator Ashcroft explained that “unless we have a Federal definition of what marriage is, a variety of States around the country could define marriage differently [and] people in different States would have different eligibility to receive Federal benefits, which would be inappropriate.” 142 Cong. Rec. 22459 (1996).
The pendency of the Baehr litigation in Hawaii confronted Congress with the realistic possibility, for the first time, that same-sex couples would seek federal benefits on the ground that they were married under state law. Indeed, the uncontradicted evidence presented to Congress demonstrated that organized litigants such as LLDEF planned to use the recognition of same-sex marriage in a single state, such as Hawaii, as a means of obtaining federal benefits for same-sex couples nationwide. House Hearing at 15. This would be accomplished by out-ofstate couples traveling to Hawaii, getting married and returning to their home states, where they would

17
seek to be considered as “married” for purposes of both state and federal law.
Absent DOMA, the outcome of these cases would depend on (1) whether a court construed the particular federal statute to authorize benefits for same-sex couples married under state law and (2) whether the court determined that the couple in question was married under state law. Assuming that the court answered the first question in the affirmative (contrary to congressional intent), it would face the second.
If there was one thing upon which all of the legal experts who testified before Congress agreed, it was that determining whether State A would recognize a same-sex marriage performed in State B would be a difficult, uncertain and unpredictable task. See supra note 7. It would in all likelihood depend on whether State A had a “strong public policy” against same-sex marriages, which in turn would depend on a variety of factors that might differ from state to state. There was a virtual certainty of varying and inconsistent results, which would only multiply if both state and federal courts were simultaneously ruling on the issues. Results would likely vary among and within states, among judges and court systems, between types of jurisdictions and laws (state or federal) and among different statutory schemes.
It was not only opponents of same-sex marriage who recognized the chaotic and inequitable situation that would result. In a memorandum entered into the record during a May 15, 1996 hearing before the House Judiciary Subcommittee on the Constitution, LLDEF described how state-by-state adjudication of

18
these issues would give rise to a “legal and practical nightmare” that would create enormous pressure for a uniform national solution. House Hearing at 19. By enacting DOMA, Congress sought to mitigate this national confusion by clarifying the definition of marriage for purposes of federal law, while preserving the authority of states to make determinations with regard to their own laws. By preserving the status quo (non-recognition of same-sex marriage) with respect to federal benefits, Congress reduced the incentives for “marriage tourism,” forestalled the use of federal courts for LLDEF’s litigation strategy, and averted the “legal and practical nightmare” that would result from disparate treatment of similarly situated same-sex couples for purposes of federal law.
The Second Circuit described Congress’s interest in uniform treatment as “suspicious” because Congress has normally deferred to state law with regard to the determination of marriage and other domestic relations issues. Supp. App. 24a. The court’s view is flawed for several reasons. First, it fails to distinguish between incorporating state law with respect to the legality of a particular relationship, and deferring to state law with respect to the ordinary meaning of a term used in federal law. The ordinary meaning of the term “marriage,” when DOMA was enacted and before, was the “[l]egal union of one man and one woman as husband and wife.” See supra note 16. The fact that Congress normally looks to state law to determine whether a particular union of a man and a woman is “legal” does not mean that it looks to state

19
law to determine whether “marriage” means “one man and one woman” in the first place. 18
Second, the touchstone for interpretation of federal statutes is congressional intent, not state law. As this Court explained in Lyeth v. Hoey:
In dealing with the meaning and application of an act of Congress enacted in the exercise of its plenary power under the Constitution to tax income and to grant exemptions from that tax, it is the will of Congress which controls, and the expression of its will, in the absence of language evidencing a different purpose, should be interpreted “so as to give a uniform application to a nationwide scheme of taxation.” Congress establishes its own criteria and the state law may control only when the federal taxing act, by express language or necessary implication, makes its operation dependent upon state law.
305 U.S. 188, 194 (1938) (quoting Burnet v. Harmel, 287 U.S. 103, 110 (1932) (internal citation omitted)).
As the Lyeth Court suggests, there is nothing novel or unprecedented about Congress preferring uniformity to deference to state law. Indeed, the original purpose of the marital estate tax deduction, adopted in the Revenue Act of 1948, was to equalize treatment of married couples in common law and community property states. See Revenue Act of 1948,
18 This distinguishes the case of same-sex marriage from other examples pointed to by the court of appeals, such as minimum age and consanguinity. Supp. App. 25a.The latter involve only the question of whether a relationship that otherwise falls within the ordinary meaning of “marriage” constitutes a “legal union.”

20
Pub. L. No. 80-471, 62 Stat. 110 (1948). As the Senate Committee on Finance explained, the differences between marital property rights in these types of states “resulted in geographic inequalities in the effect of the estate and gift taxes.” S. Rep. No. 801013, at 26. While the surviving spouse in a community property state escaped taxation on one-half of the community property, the surviving spouse in a common law property state generally was taxed on the full amount of the estate. The Revenue Act of 1948 provided a marital deduction up to one-half the value of the common law (but not community) property, thereby ensuring that differences in state law would not result in radically different federal law treatment of similarly-situated spouses.
Finally, in dismissing Congress’s interest in preserving the stability and uniformity of federal law, the Second Circuit failed to take into account the unique circumstances addressed by DOMA. Congress was faced with an organized and unprecedented effort to redefine marriage in a manner, as the court acknowledged, “unknown to history and tradition.” Supp. App. 31a. This situation was not comparable in any way to the minor variations among states with respect to age or consanguinity. Moreover, the court’s assertion, Supp. App. 26a, that it would have been “simpler” for Congress to have asked “whether a couple was married under the law of the state of domicile,” rather than maintain a uniform federal rule with regard to same-sex marriage, not only improperly substitutes its policy judgment for that of

21
Congress, but is contradicted by the legislative record and the very facts of the case at bar.19
(C). Section 3 of DOMA protects the ability of states to preserve traditional marriage. The court below implied that Section 3 of DOMA interferes with the autonomy of states with regard to domestic relations, terming it “an unprecedented breach of longstanding deference to federalism.” Supp. App. 26a. At the same time (and somewhat inconsistently),
19 In the present case, Ms. Windsor claims the marital estate tax deduction by virtue of her 2007 marriage in Canada to Thea Clara Spyer. She was a resident of New York at the time of Ms. Spyer’s death in 2009. Although New York did not permit same-sex couples to marry prior to 2011, the Second Circuit “predicted” that the New York Court of Appeals would ultimately hold out-of-state same-sex marriages to be recognized in 2009 under New York law, an issue that the New York Court of Appeals expressly declined to reach in Godfrey v. Spano, 13 N.Y.3d 358 (2009). The Second Circuit refused to exercise the option of certifying the question to the New York Court of Appeals, noting that court had preferred the issue be resolved by the New York legislature and stating “[w]e hesitate to serve up to the Court of Appeals a question that it is reluctant to answer for a prudential reason.” Supp. App. 6a.
It is difficult to imagine a set of facts more clearly rebutting the Second Circuit’s claim that it would be “simpler” to apply the law of the state of domicile than to apply Section 3 of DOMA. It is also noteworthy that, regardless of whether the Second Circuit correctly “predicted” New York law in this regard, its decision awards a federal benefit to Ms. Windsor that would not be available to the same-sex couples in the great majority of U.S. states, even if they had been married in Canada or another jurisdiction that licenses such marriages, or even to most same-sex couples in New York itself. It is particularly noteworthy that Ms. Windsor would treated more favorably than the surviving member of civil unions that have been recognized, as an alternative to marriage, in a number of states. See, e.g., Haw. Rev. Stat Ann. § 572B (West 2013).

22
it contended that DOMA could not advance a government interest in preserving traditional marriage because the decision whether same-sex couples may marry is left to the states. Id. at 29a.
Both of these observations are incorrect. DOMA does not interfere with the authority of the states with respect to licensing and recognizing marriage. To the contrary, Section 2 of DOMA preserves and protects the autonomy of each state in that regard.
Section 3 of DOMA, however, advances the objective of preserving traditional marriage, not by interfering with state authority, but by removing an incentive that might otherwise encourage efforts to change state law. The prospect of obtaining numerous federal benefits for same-sex couples could be a tremendous weapon in the arsenal of those who would seek to gain recognition of same-sex marriage at the state level. It would be particularly tempting for courts to recognize same-sex marriage in order to award federal benefits to sympathetic plaintiffs.
In this way, Section 3 functions much like the original marriage estate tax deduction enacted by Congress. Congress recognized that the prospect of obtaining federal tax benefits (including both income and estate/gift taxes) was driving states to shift from common law to community property, despite the otherwise serious downside to making this shift:
The adoption of community property has been advocated widely in spite of a growing awareness of the substantial differences between community property and common law which make a transition from one system to the other extremely difficult. It is now recognized that this

23
transition will be a period of extreme confusion during which the courts, the administrative officials and the legislatures will be working out the detailed application of a new and strange system of property law. Nevertheless, many responsible State officials have reached the conclusion that the difference between the impact of the Federal income tax as it applies in community-property and common-law jurisdictions is so great that the use of community property cannot be avoided.
S. Rep. No. 80-1013.
Congress’s concerns regarding state adoption of community property regimes were, of course, not the same as its concerns regarding state recognition of same-sex marriage, but it was entirely rational and legitimate for Congress in both cases to remove an unwarranted federal incentive for states to change their domestic-relations law.
By enacting Section 3 of DOMA, Congress not only protected the federal treasury, but it ensured that the federal treasury would not be used as an incentive to undermine the traditional state law of marriage.
II. Support for Traditional Marriage is Not Unconstitutional “Animus”
Although the Second Circuit avoided any direct attack on the motivations of individual legislators who supported DOMA, the United States maintained below that “the statute was motivated in significant part by disapproval of gay and lesbian people and their intimate and family relations” and that therefore “Section 3 classifies gay and lesbian individuals ‘not to further a proper legislative end but to make

24
them unequal to everyone else.’” Br. for United States 37, Windsor, Nos. 12-2335 & 12-2435 (2d Cir. Aug. 10, 2012), ECF 120 (quoting Romer v. Evans, 517 U.S. 620, 635 (1996)). The United States does not explain whether this alleged motivation can be attributed to President Clinton, who signed the law, or the current Vice President of the United States, who as a U.S. Senator voted for it.
The position of the United States, if accepted, would mean that it is permissible for the executive branch to disavow the constitutionality of a statute based on pejorative characterizations of what motivated certain legislators (or motivated them “in significant part”), despite the fact that the Department of Justice contemporaneously advised the Congress that the statute was clearly constitutional and vigorously defended the statute’s constitutionality for more than a decade after enactment. Amici note the troubling implications of this position for separation of powers, comity between the branches, and the ability of Congress to assess the constitutionality of proposed legislation.
Fortunately, the position of the United States is without merit.20 In the first place, this Court’s “ani-
20 Another example of this mode of analysis is the majority opinion in Perry v. Brown, 671 F.3d 1052, 1063 (9th Cir. 2012), in which the Ninth Circuit held that Proposition 8, an amendment to the California Constitution adopted by a vote of the people in 2008, violated the Equal Protection Clause of the Fourteenth Amendment by withdrawing from same-sex couples the right to be married, a right that had first been afforded to such couples by a decision of the California Supreme Court earlier in 2008. See also In re Marriage Cases, 183 P.3d 384 (Cal. 2008). The opinion discusses evidence that Proposition 8 “was born of disapproval of gays and lesbians,” Perry, 671 F.3d

25
mus” jurisprudence does not support invalidating an otherwise constitutional statute based on what may have “motivated” individual legislators. In U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528 (1973), which involved an amendment to the Food Stamp Act withdrawing benefits from otherwise eligible individuals if they lived in a household with unrelated individuals, the Court first noted that the provision was clearly irrelevant to the purposes stated in the original Act itself (e.g., to provide a market for agricultural surpluses and to satisfy the nutritional requirements of food stamp recipients). Id. at 534. Noting that there was “little legislative history” to illuminate the purposes of the amendment, this Court observed that the only purpose reflected in the history was “that the amendment was intended to prevent so-called ‘hippies’ and ‘hippie communes’ from participating in the food stamp program.” Id. This Court held that “[t]he challenged classification clearly cannot be sustained by reference to this congressional purpose [because] * * * a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.” Id. at 534-35. Moreno does not suggest that the law in question is invalid because it was allegedly
at 1094-95. However, as the dissent in that case points out, this Court’s precedent in Romer v. Evans, 517 U.S. 620 (1996) does not support the conclusion that evidence of animus, standing alone, justifies a finding of unconstitutionality. Perry, 671 F.3d at 1104 (Smith, J., concurring in part and dissenting in part) (“Romer was a case where the only basis for the measure at issue was animus. However, in a case where the measure at issue was prompted both by animus and by some independent legitimate purpose, the measure may still be constitutionally valid.”).

26
motivated by disapproval or dislike of “hippies.” A law furthering a legitimate governmental interest, such as a law making it a crime to use marijuana, would not be unconstitutional even if some or all members who voted for it expressed disapproval of “hippies” as their reason for doing so. Moreno merely stands for the proposition that such views alone do not constitute a legitimate government purpose or interest.
Subsequent cases are to the same effect. In Romer, this Court struck down a Colorado constitutional amendment which (1) repealed existing laws classifying gays and lesbians as a group protected from discrimination and (2) prohibited any future legislative, executive or judicial action to provide such protection at any level of state or local government. 517 U.S. at 624. Although the Court noted that “laws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected,” id. at 634, this inference was based on the structure of the amendment and the absence of “any identifiable legitimate purpose or discrete objective.” Id. at 635. It was not based on a subjective evaluation of the motives of the legislative actors, in that case the people of Colorado. Moreover, the Court did not suggest that an otherwise constitutional law would be invalidated by improper motives of some legislators.
This distinction is of critical importance because judicial scrutiny of legislative motives is fraught with peril.21 Evaluating constitutionality based on assess-
21 See Fleming v. Nestor, 363 U.S. 603, 617 (1960) (“Judicial inquiries into Congressional motives are at best a hazardous

27
ment of legislative motives would mean that the same law could be constitutional or unconstitutional, depending on the particular legislature that enacted it. For example, in the case of DOMA, there can be no doubt that the overwhelming majority of Congress reasonably believed that the pre-existing federal definition of “marriage” did not, and was not intended to, encompass same-sex marriage. If constitutionality were determined by subjective motivation, the preexisting definition of “marriage” would clearly be constitutional (since there is no suggestion that Congress enacted that definition with any “motives” related to same-sex relationships), yet DOMA’s reaffirmation of the same definition might not be. Such an approach would be utterly at odds with our constitutional traditions. 22
Moreover, judicial scrutiny of legislative motives inevitably raises insoluble problems of proof. A court lacks information to determine the true motives of particular legislators, much less to determine whether to impute such motives to the legislature as a whole. As Chief Justice Marshall noted in Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 131 (1810), a court cannot declare a legislative act to be “a nullity, in consequence of the impure motives which influenced certain members of the legislature which passed the law.”
matter, and when that inquiry seeks to go behind objective manifestations it becomes a dubious affair indeed.”).
22 Justice Story explained that it would be “novel and absurd” to suggest that “the same act passed by one legislature will be constitutional, and by another unconstitutional,” depending on the motives for enacting it. 2 Joseph Story, Commentaries on the Constitution of the United States 533, § 1086 (1st ed.1833).

28
Judicial review of legislative motives also raises serious separation of powers problems. Judicial “psychoanalysis” of legislative motives, to use Justice Cardozo’s phrase, is a highly subjective exercise, which threatens needless friction between the branches.23 Scouring the congressional record for “sound-bites” to divine and disparage the motives of individual legislators also chills the freedom of legislative speech that is the hallmark of robust democratic debate.
Furthermore, with respect to DOMA in particular, there is no basis to equate support for the traditional definition of marriage with unconstitutional animus or “a bare congressional desire to harm a politically unpopular group.” As Justice O’Connor noted in her concurrence in Lawrence v. Texas, “other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.”24 It is simply not irrational or bigoted to oppose the redefinition of marriage in a manner “unknown to history and tradition,” to use the language of the court below.25 To the contrary, when faced with a proposed fundamental redefinition of the institution of marriage, it would be irrational not to consider
23 See United States v. Constantine, 296 U.S. 287, 298-99 (1935) (Cardozo, J., dissenting).
24 539 U.S. 558, 585 (2003) (O’Connor, J., concurring); see also Massachusetts v. U.S. Dep’t of HHS, 682 F.3d 1, 16 (1st Cir. 2012) (“Traditions are the glue that holds society together, and many of our own traditions rest largely on belief and familiarity—not on benefits firmly provable in court. The desire to retain them is strong and can be honestly held.”).
25 Supp. App. 31a.

29
“American society’s historical view of a marriage as being between a man and a woman.”26
The fact that DOMA passed both houses of Congress with overwhelming support across the political spectrum, and was signed by into law by President Clinton, further undercuts any attempt to characterize it as the result of unconstitutional “animus.”27 Many DOMA supporters were on record as opposing discrimination against gays and lesbians. See, e.g., 142 Cong. Rec. 22452 (1996) (Sen. Mikulski) (“My support for the Defense of Marriage Act does not lessen in any way my commitment to fighting for fair treatment for gays and lesbians in the workplace.”). These included, for example, 16 original Senate cosponsors of S.932, which was introduced in 1995 to ban employment discrimination on the basis of sexual orientation.28
Finally, as Judge Straub pointed out below, if “states may use the traditional definition of marriage for state purposes without violating equal protection, it necessarily follows that Congress may define marriage the same way for federal purposes without
26 Supp. App. 34a (Straub, J., dissenting in part and concurring in part).
27 As the First Circuit has noted with respect to DOMA, “selected comments by a few individual legislators . . . cannot taint a statute supported by large majorities in both Houses and signed by President Clinton.” Massachusetts, 682 F.3d at 16.
28 See Employment Nondiscrimination Act of 1995, S. 932, 104th Cong. The primary sponsor of S. 932, Senator Jeffords, voted for DOMA, as did 15 co-sponsors (Senators Bingaman, Bradley, Chafee, Dodd, Glenn, Harkin, Kohl, Lautenberg, Leahy, Levin, Lieberman, Mikulski, Murray, Sarbanes and Wellstone). See 142 Cong. Rec. 22467 (1996).

30
violating equal protection.” Supp. App. 45a. It certainly cannot represent unconstitutional “animus” to wish to define “marriage,” for federal law purposes, in this constitutionally permissible manner.
It is manifest that the traditional definition of marriage, which was overwhelmingly supported by bipartisan majorities in 1996, is more controversial today, both among the public and their elected representatives. This, however, is not a reason to end the democratic debate by asking the courts to stigmatize the motives of one side. To the contrary, as Judge Straub aptly noted in his dissent, “[c]ourts should not intervene where there is a robust political debate because doing so poisons the political well, imposing a destructive anti-majoritarian constitutional ruling on a vigorous debate.” Supp. App. 83a.
CONCLUSION
For the foregoing reasons, the judgment of the court of appeals should be reversed.
Respectfully submitted,

January 29, 2013

MICHAEL L. STERN Counsel of Record
8529 Century Oak Court Fairfax Station, Va. 22039 (703) 786-7581 stern8529@verizon.net
Counsel for Amici Curiae

 
 No. 12-307
IN THE
J5\upre:nte mourt of J:4e ~nitro J5\tates

UNITED STATES OF AMERICA,
Petitioner, v.
EDITH SCHLAIN WINDSOR, in her capacity as Executor of the estate of THEA CLARA SPYER, ET AL.,
Respondents.
On Writ of Certiorari to the United States Court of Appeals
for the Second Circuit
BRIEF ON THE MERITS FOR RESPONDENT EDITH SCHLAIN WINDSOR

Pamela S. Karlan

Roberta A. Kaplan

Jeffrey L. Fisher

Counsel ofRecord

STANFORD LAW SCHOOL Andrew J. Ehrlich

SUPREME COURT

Jaren Janghorbani

LITIGATION CLINIC

Julie E. Fink

559 Nathan Abbott Way Joshua D. Kaye

Stanford, CA 94305

PAUL, WEISS,

RIFKIND, WHARTON &

James D. Esseks

GARRISON LLP

Rose A. Saxe

1285 Avenue of the

Joshua A. Block

Americas

Leslie Cooper

New York, NY 10019

Steven R. Shapiro

(212) 373-3000

AMERICAN CIVIL LIBERTIES rkaplan@paulweiss.com

UNION FOUNDATION

125 Broad Street

Arthur Eisenberg

New York, NY 10004

Mariko Hirose

NEW YORK CIVIL LIBERTIES

UNION FOUNDATION

125 Broad Street

New York, NY 10004

QUESTION PRESENTED
Whether Section 3 of the Defense of Marriage Act, 1 U.S.C. § 7, violates the Fifth Amendment's guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their state.

ii
TABLE OF CONTENTS
QUESTION PRESENTED ..........................................i TABLE OF CONTENTS............................................ ii TABLE OF AUTHORITIES ..................................... .iv STATEMENT OF THE CASE.................................... 1
A. Factual Background .................................... 1 B. The Defense of Marriage Act.......................5 C. Procedural Background ............................. 11 SUMMARY OF ARGUMENT .................................. 14 ARGUMENT ............................................................. 17 I. BECAUSE DOMA DISCRIMINATES ON THE BASIS OF SEXUAL ORIENTATION, IT TRIGGERS- AND FAILSHEIGHTENED SCRUTINY ............................. 17 II. DOMA FAILS RATIONAL BASIS REVIEW ... 32 A. DOMA HAS CHARACTERISTICS
THAT THIS COURT HAS IDENTIFIED IN PRIOR CASES AS EVIDENCE OF IRRATIONALITY........... 32

iii
B. DOMA IS NOT RATIONALLY RELATED TO THE ACHIEVEMENT OF ANY LEGITIMATE FEDERAL INTEREST ................................................. 39
1. DOMA Is Not Rationally Related To Any Legitimate Federal Interest In Procreation.....................................39
2. DOMA Is Not Rationally Related To Any Legitimate Federal Interest In Uniformity Or Conserving Federal Resources ..............................48
3. DOMA Fails To Further Any Legitimate Federal Interest In Dual Sovereignty, Tradition, Or Caution ............................................... 55
C. THE FACTS OF THIS CASE REINFORCE THE CONCLUSION THATDOMAIS UNCONSTITUTIONAL ............................ 59
CONCLUSION ......................................................... 63

IV

TABLE OF AUTHORITIES

CASES

Page(s)

In re Adoption ofDoe, 2008 WL 5006172 (Fla. Cir. Ct. Nov. 25, 2008), affd sub nom. In reAdoption ofX.X.G. & N.R.G., 45 So. 3d 79 (Fla. Dist. Ct. App. 2010) ................................. 47

Armour v. City ofIndianapolis, 132 S. Ct. 2073 (2012) ..................................... 32, 48

Astrue v. Caputo, 132 S. Ct. 2021 (2012) ........................................... 52

Baehr v. Lewin, 852 P.2d 44 (Haw. 1993) ......................................... 8

Bd. ofTrustees ofUniv. ofAla. v. Garrett,
531 u.s. 356 (2001) ··································· 35, 57, 61
Bolling v. Sharpe, 347 U.S. 497 (1954) ............................................... 17

Boutilier v. INS,
387 u.s. 118 (1967) ............................................... 20

Bowen v. Gilliard,
483 u.s. 587 (1987) ··············································· 25
Bowers v. Hardwick,
478 u.s. 186 (1986) ··········································· 7, 20
Bray v. Alexandria Women's Health Clinic, 506 U.S. 263 (1993) ............................................... 28

v
Christian Legal Soc'y v. Martinez, 130 S. Ct. 2971 (2010) ..................................... 28, 57
City ofBoerne v. Flores,
521 u.s. 507 (1997) ............................................... 34
City ofNew Orleans v. Dukes,
427 u.s. 297 (1976) ............................................... 17
Clark v. Jeter,
486 u.s. 456 (1988) ............................................... 17
Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) ....................................... passim
Corp. ofthe Presiding Bishop ofthe Church of Jesus Christ ofLatter-Day Saints v. Amos, 483 U.S. 327 (1987) ............................................... 26
Dragovich v. U.S. Dep't of Treasury, 872 F. Supp. 2d 944 (N.D. Cal. 2012) ............. 40, 54
Eisenstadt v. Baird,
405 u.s. 438 (1972) ................................... 41, 44, 45
FCC v. Beach Commc'ns,
508 u.s. 307 (1993) ............................................... 38
Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 130 S. Ct. 3138 (2010) ........................................... 35
Frontiero v. Richardson, 411 U.S. 677 (1973) ....................................... passim

vi
Gill v. Office ofPers. Mgmt., 699 F. Supp. 2d 374 (D. Mass. 2010) atf'd sub nom Massachusetts v. U.S. Dep't of Health & Human Servs., 682 F.3d 1 (1st Cir. 2012)................................ 37, 54
Estate of Goldwater v. Comm'r, 539 F.2d 878 (2d Cir. 1976).............................. .4, 51
Golinski v. Office ofPers. Mgmt., 824 F. Supp. 2d 968 (N.D. Cal. 2012) ............. 27, 54
Graham v. Richardson, 403 U.S. 365 (1971) ................................... 17, 18, 53
Heller v. Doe,
509 u.s. 312 (1993) ............................................... 54
Hillsborough Twp. v. Cromwell,
326 u.s. 620 (1946) ............................................... 32
Hooper v. Bernalillo Cnty. Assessor,
472 u.s. 612 (1985) ............................................... 42
Howard v. Child Welfare Agency Review Bd., No. CV 1999-9881, 2004 WL 3154530 (Ark. Cir. Ct. Dec. 29, 2004); affd sub nom. Dep't ofHuman Servs. v. Howard, 238 S.W.3d 1 (Ark. 2006)............................................................. 47
Jimenez v. Weinberger, 417 U.S. 628 (1974) ......................................... 19, 45
Johnson v. Robison, 415 U.S. 361 (1974) ............................................... 43

Vll
Lawrence v. Texas, 539 U.S. 558 (2003) ....................................... passim
Lee v. Comm'r, 550 F.2d 1201 (9th Cir. 1977) ............................... 51
In re Levenson, 587 F.3d 925 (9th Cir. 2009) ................................. 54
Lyng v. Int'l Union,
485 u.s. 360 (1988) ............................................... 53
Massachusetts v. U.S. Dep't ofHealth & Human Servs., 682 F.3d 1 (1st Cir. 2012).............................. passim
Mass. Bd. ofRet. v. Murgia, 427 U.S. 307 (1976) .............................................. 23
Mathews v. Diaz,
426 u.s. 67 (1976) ................................................. 38
Mathews v. Lucas,
427 u.s. 495 (1976) ............................. 22, 24, 27, 33
Metro. Life Ins. Co. v. Ward,
470 u.s. 869 (1985) ............................................... 34
Mills v. Habluetzel,
456 u.s. 91 (1982) ................................................. 21
Nyquist v. Mauclet, 432 U.S. 1 (1977) ................................................... 26
Palmore v. Sidoti,
466 u.s. 429 (1984) ............................................... 34

viii
Pedersen v. Office ofPers. Mgmt., 881 F. Supp. 2d 294 (D. Conn. 2012) .............. 27, 40
Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012) cert. granted sub nom. Hollingsworth v. Perry, 133 S. Ct. 786 (2012) (Mem.) .................................................. 29
Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010) affd sub nom. Perry v. Brown, 671 F.3d 1052 (9th Cir.), cert. granted sub nom. Hollingsworth v. Perry, 133 S. Ct. 786 (2012) (Mem.) ......................................................... 47
Pers. Adm'r ofMass. v. Feeney, 442 U.S. 256 (1979) ............................................... 33
Plyler v. Doe,
457 u.s. 202 (1982) ......................................... 17, 53
Reed v. Reed,
404 u.s. 71 (1971) ........................................... 19, 52
Romer v. Evans, 517 U.S. 620 (1996) ....................................... passim
Rowland v. Mad River Local Sch. Dist.,
470 u.s. 1009 (1985) ............................................. 20
Schweiker v. Wilson, 450 U.S. 221 (1981) ............................................... 38
Estate ofSpalding, 537 F.2d 666 (2d Cir. 1976)................................... 51

ix
Stanley v. illinois,
405 u.s. 645 (1972) ............................................... 53
Vill. ofBelle Terre v. Boraas, 416 U.S. 1 (1974) ................................................... 38
United States v. Carolene Prods. Co.,
304 u.s. 144 (1938) ......................................... 18, 54
United States v. Lopez,
514 u.s. 549 (1995) ............................................... 35
United States v. Morrison,
529 u.s. 598 (2000) ............................................... 35
United States v. Virginia, 518 U.S. 515 (1996) ....................................... passim
U.S. Dep't ofAgric. v. Moreno, 413 U.S. 528 (1973) ................................... 33, 34, 49
Watkins v. U.S. Army, 875 F.2d 699 (9th Cir. 1989) ................................. 27
Watson v. City ofMemphis, 373 U.S. 526 (1963) ............................................... 57
Weber v. Aetna Cas. & Sur. Co.,
406 u.s. 164 (1972) .........................................43, 46
Williamson v. Lee Optical Co., 348 U.S. 483 (1955) ............................................... 51
CONSTITUTION AND STATUTES U.S. Const. amend. V.......................................... passim

X
Defense of Marriage Act§ 3, 1 U.S.C. § 7 00000000000000001, 5 5 U.S.C. App. 4 § 102oooooooooooo000000oooooooooooo0000000000000000000000 7 5 U.S.C. App. 4 § 103 OOooooooooooOOOOOOOOooOOOOOOOOOOOOOOOOOOOOOOOOOOOOOO 7 5 U.S.C. App. 4 § 109 ooooooooooooOOooooooooooooooooOOOOOOOOOOOOOOooooOOOO 7 5 U.S.C. § 6382(a)(1)(C) 000000000000000000000000000000000000000000000000 6 8 U.S.C. § 1186a(b)(1)ooooooooooooooooooooooooooooooOOOOOOooOOOOOOooOOooo 5 17 U.S. C. § 10100000000000000000000000000000000000000000000000000000000000000 6 17 U.S. C. § 203ooooooooooooooooooooooooooooOOooOOooooooOOOOOOOOOOOOOOOOOOooOO 6 17 U.S.C. § 30400000000000000000000000000000000000000000000000000000000000000 6 18 U.S. C. § 115(a), (c)(2) 00000000000000000000000000000000000000000000000 7 26 u.s. c.§ 2(b)(2)ooooooooooooooooooooooooooooooooooooooooooooooooooooooooo 5 26 U.S. C. § 2056(a) 0000000000000000000000000000000000000000000000000000000 4 26 u.s.c. § 6013oooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo 6 28 U.S.C. § 1738C 0000000000000000000000000000000000000000000000000000000 56 29 U.S.C. § 2612(a)(1)(C) 0000000000000000000000000000000000000000000000 6 42 U.S.C. § 416(h)(1)(A)(i) 000000000000000000000000000000000000000000 50
REGULATIONS 29 C.F.R. § 825.12200000000000000000000000000000000000000000000000000000 50 38 C.F.R. § 3.1(j) 000000000000000000000000000000000000000000000000000000000 50

xi
SSR 63-20 1963 WL 3518 (1963) ................................ 50 EXECUTIVE AND LEGISLATIVE MATERIALS
142 Cong. Rec. 16,799 (1996) ..................................... 10 142 Cong. Rec. 16,802 (1996) ..................................... 10 142 Cong. Rec. 16,972 (1996) ..................................... 10 142 Cong. Rec. 17,074 (1996) ..................................... 10 142 Cong. Rec. 17,077 (1996) ..................................... 10 142 Cong. Rec. 17,079 (1996) ..................................... 10 142 Cong. Rec. 17,082 (1996) ..................................... 10 142 Cong. Rec. 17,084 (1996) ..................................... 10 142 Cong. Rec. 17,092-93 (1996) .................................. 9 142 Cong. Rec. 22,448 (1996) ....................................... 9 Cong. Budget Office, The Potential Budgetary
Impact ofRecognizing Same-Sex Marriages (June 21, 2004), available at http://tinyurl.com/CB02004.................................. 54 Defense of Marriage Act: Hearing on H.R. 3396 before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 104th Cong. (1996) ........................... 8, 10 Exec. Order No. 10450, 18 Fed. Reg. 2489 (1953) ....................................................................... 2 H.R. Rep. No. 104-664 (1996) ............................. passim

XII
H.R. Rep. No. 97-201 (1981) ......................................... 4
Markup Session on H.R. 3396, The Defense of Marriage Act, Subcomm. on the Constitution of the H. Comm. on the Judiciary, 104th Cong. (1996) ................................ 9
S. Rep. No. 97-144 (1981) ............................................. 4
U.S. Office ofPers. Mgmt., Federal Employees Health Benefits Program Handbook, available at http://tinyurl.com/ FedBenefitsHandbook............................................. 6
OTHER AUTHORITIES
2 Am. Jur. 2d Adoption§ 172 (2013).......................... 45
Am. Psychological Ass'n, Report ofthe American Psychological Association Task Force on Appropriate Therapeutic Responses to Sexual Orientation (2009), available at http://tinyurl.com/ APAReportTherapy ............................................... 26
Census Releases Data on Same-Sex Couples, The Williams Institute (Sept. 27, 2011), available at http://tinyurl.com/ WilliamsCensus ..................................................... 49
Barbara S. Gamble, Putting Civil Rights to a Popular Vote, 41 Am. J. Pol. Sci. 245 (1997) ....... 29
Gay and Lesbian Rights, Gallup 2008, available at http://tinyurl.com/ GLRightsGallup................................................ 7, 30

Xlll
Andrew Koppelman, Romer v. Evans and Invidious Intent, 6 Wm. & Mary Bill Rts. J. 89 (1997) ································································ 34
Kristin Anderson Moore et al., Marriage from a Child's Perspective: How Does Family Structure Affect Children and What Can We Do About It?, Child Trends Research Brief (2002), available at http://tinyurl.com/ ChildTrendsFamily ............................................... 47
Mark Regnerus, How Different are the Adult Children ofParents Who Have Same Sex Relationships?, 41 Social Sci. Res. 752-70 (2012) ..................................................................... 47
Brian G. Raub, Federal Estate Tax Returns Filed for 2004 Decedents, Stat. oflncome Bull., Spring 2008, at 115, available at http://tinyurl.com/estatestats................................ 60

STATEMENT OF THE CASE
This case raises the question whether Section 3 of the Defense of Marriage Act ("DOMA''), 1 U.S. C. § 7, which excludes legally married couples who are gay from the federal rights, benefits, and burdens that govern all other married couples, is constitutional. Both the district court and the court of appeals held that the equal protection component of the Fifth Amendment's due process clause was violated when the federal government imposed $363,053 in estate taxes on the estate of Thea Spyer simply because she was married to a woman (respondent Edith S. Windsor), instead ofto a man.
A. Factual Background
1. In the early 1960s, at a time when lesbians and gay men risked losing their families, friends, and livelihoods if their sexual orientation became known, respondent Edith Windsor and her late spouse Thea Spyer fell in love and embarked upon a relationship that would last until Dr. Spyer's death forty-four years later.
The depth, commitment, and longevity of their relationship and eventual marriage are all the more remarkable given the times they lived through. Dr. Spyer was expelled from college when a campus security guard observed her kissing another woman. J.A.153. Ms. Windsor entered into a brief, and unsuccessful, marriage to a man in the early 1950s

2
because she did not believe that it was possible for her to live openly as a lesbian. J.A.494-96.
Shortly after her first marriage ended, Ms. Windsor moved to New York City, where she received a graduate degree in mathematics. She eventually became a highly successful computer programmer at IBM, achieving the highest technical rank at the company, notable for a woman at the time. J.A.231. Sadly, discriminatory federal laws threatened her ability to pursue her career. Ms. Windsor supported herself during graduate school by working as a programmer on the UNIVAC computer for the Atomic Energy Commission. But an Executive Order prohibited companies that had contracts with the Government from employing gay men or lesbians. See Exec. Order No. 10450, 18 Fed. Reg. 2489 (1953). Thus, when the FBI requested an interview in connection with her security clearance, Ms. Windsor rightly feared that she would lose her job if she were asked about her sexual orientation. J.A.497-98. (Fortunately for Ms. Windsor, the FBI never raised the subject. Id.) Similarly, by hiring Ms. Windsor (who never disclosed her sexual orientation), IBM later unknowingly ran afoul of that same Executive Order.
Threats of disclosure and harassment also forced gay people like Ms. Windsor and Dr. Spyer to lead important parts of their lives in secrecy. Ms. Windsor and Dr. Spyer met at one of the few restaurants in New York City where lesbians were welcomed in 1963. Four years later, they moved in

3
together and became engaged, although there was then no prospect of their being able to marry legally. To avoid unwelcome questions about the identity of Ms. Windsor's "fiance" from co-workers, Dr. Spyer proposed with a diamond brooch, instead of a diamond ring. J.A.231-33.
Ms. Windsor and Dr. Spyer's life together was full of all the joys and sorrows that any couple faces. They worked, paid their taxes, traveled, entertained friends, and participated in their community. J.A.233. Ms. Windsor spent her career at IBM. Dr. Spyer, who earned a doctorate in clinical psychology, maintained an active private practice.
In 1977, Dr. Spyer was diagnosed with progressive multiple sclerosis, a disease of the central nervous system that causes irreversible neurological damage and often, as in Dr. Spyer's case, paralysis. Ms. Windsor supported Dr. Spyer as her disability worsened, requiring first a cane, then crutches, then a manual wheelchair, then a motorized wheelchair that Dr. Spyer could operate with her one usable finger. J.A.234. Their life together became the subject of an award-winning documentary film, Edie and Thea: A Vezy Long Engagement (2009).
Eventually, Dr. Spyer's health had so deteriorated that it became clear she would not live long enough to hold their wedding ceremony in New York, as the couple had long hoped. Therefore, joined by a physician and several close friends, Dr. Spyer, then seventy-five, and Ms. Windsor, then seventy-

4
seven, flew to Toronto, Canada, where they were wed on May 22, 2007. J.A.236.
They spent their last two years together as a married couple. Dr. Spyer died of a heart condition on February 5, 2009. Grief-stricken, Ms. Windsor suffered a severe heart attack and received a diagnosis of stress cardiomyopathy, or "broken heart syndrome." J.A.236-37.
2. Dr. Spyer left her entire estate to Ms. Windsor, who was appointed executor. J.A.237. Federal law imposes a tax on estates the value of which exceeds a specified threshold. Under 26 U.S.C. § 2056(a), however, there is an unlimited deduction for property that passes from the decedent to the surviving spouse. Congress enacted this deduction to eliminate the "widow's tax" on surviving spouses who were "subject to estate taxes even though the property remains within the marital unit." H.R. Rep. No. 97-201, at 159 (1981); see also S. Rep. No. 97-144, at 127 (1981).
But for DOMA, the applicability of the estate tax's marital deduction depends solely on whether the couple was validly married under the law oftheir state of domicile at the time of death. See, e.g., Estate ofGoldwaterv. Comm'r, 539 F.2d 878 (2d Cir. 1976). All parties to this litigation agree that if Dr. Spyer had been married to a man, the marital deduction would have applied and her estate's federal tax bill would have been $0. J.A.464-65 (admission of the Bipartisan Legal Advisory Group of House of

5
Representatives); J.A.486 (acknowledgment of United States).
Although NewYork, where the couple lived together for more than four decades and where Dr. Spyer died, recognized the validity of the couple's marriage, J.A.467, the Internal Revenue Service ("IRS"), citing DOMA, did not. J.A.251-52. Consequently, Dr. Spyer's estate owed $363,053 in federal estate tax, which Ms. Windsor paid as executor. J.A.238-39.
B. The Defense of Marriage Act
1. Until 1996, federal law contained no comprehensive definition of the words "marriage" or "spouse." While some statutes or regulations contained program-specific provisions qualifYing the scope of these words, see, e.g., 26 U.S.C. § 2(b)(2) (imposing additional tax-related requirements in order to be considered "married" without defining term); 8 U.S.C. § 1186a(b)(l) (imposing additional requirement that qualifYing marriage not be fraudulently entered), federal law generally treated an individual as married or not based on the laws of the relevant state (usually the state of domicile).
DOMA altered this status quo by imposing a new rule applicable to all federal laws. 1 U.S.C. § 7. That definition restricts "marriages" to "only a legal union between one man and one woman as husband and wife." Id. And it limits the word "spouse" to only "a person of the opposite sex." Id. Thus, under

6
DOMA, the federal government regards gay couples as not married even if they are married under state law.
DOMA excludes married couples who are gay from all of the rights, privileges, and obligations that the federal government otherwise affords married couples. Ms. Windsor's situation is representative. In addition to being denied the ability to claim the estate tax deduction on behalf of her deceased spouse's estate, she has also been denied the Social Security death benefit to which surviving spouses are normally entitled. See Windsor Jurisdiction Br. at 1a-9a; J.A.470.
Because DOMA affects more than 1,100 provisions of federal law, it denies married gay couples and surviving spouses access to protections in many other contexts as well. DOMA, for example, prevents married couples who are gay from filing joint federal income tax returns. See 26 U.S.C. § 6013. It denies federal employees the ability to share their health insurance and other medical benefits with their spouses. See U.S. Office of Pers. Mgmt., Federal Employees Health Benefits Program Handbook, available at http://tinyurl.com/ FedBenefitsHandbook. It impairs the rights of samesex spouses to obtain benefits relating to intellectual property. See 17 U.S.C. §§ 101, 203, 304. It denies gay couples the protections of the Family and Medical Leave Act ("FMLA"). See 5 U.S.C. § 6382(a)(1)(C); 29 U.S.C. § 2612(a)(1)(C). It deprives the surviving member of a military couple formal notification of his

7
or her spouse's death in the line of duty, and blocks surviving spouses from accessing veterans benefits. See Br. of Amici Curiae Lawrence J. Korb et al.
At the same time, DOMA exempts married gay couples from federal restrictions and duties, such as the financial disclosure requirements that apply to the spouses of federal officials. See 5 U.S.C. App. 4 §§ 102, 103, 109; see also Br. of Amici Curiae Former Federal Election Commission Officials. DOMA also prevents the federal government from enforcing laws against third parties where those laws depend on marital status. For example, it is a federal crime to retaliate against a federal law enforcement official by threatening or injuring his or her spouse. See 18 U.S. C. § 115(a), (c)(2). Under DOMA, however, the federal government cannot use this law to prosecute the murderer of a gay FBI agent's spouse. See Br. of Amicus Curiae Citizens for Responsibility & Ethics in Washington.
2. In 1996, when DOMA was passed, twenty states criminalized consensual sodomy, and only 44% of Americans thought that gay and lesbian relations between consenting adults should be legal. Gay and Lesbian Rights, Gallup 2008, available at http://tinyurl.com/GLRightsGallup. This Court's decision in Bowers v. Hardwick, 478 U.S. 186 (1986), which upheld the constitutionality of those laws, provided "an invitation to subject homosexual persons to discrimination both in the public and in the private spheres." Lawrence v. Texas, 539 U.S. 558, 575 (2003). Congress accepted that invitation by

8
passing DOMA. As the House Report noted, "[i]f (as in Bowers) moral objections to homosexuality can justify laws criminalizing homosexual behavior, then surely such moral sentiments provide a rational basis for choosing not to grant homosexuals ... protect[ions] ... under antidiscrimination laws." H.R. Rep. No. 104-664, at 31 (1996) ("House Report").
DOMA was enacted after a decision by the Hawaii Supreme Court that raised the possibility that Hawaii might permit gay couples to marry. See Baehr v. Lewin, 852 P.2d 44 (Haw. 1993); House Report at 2. The House Report acknowledged that "[t]he determination of who may marry in the United States is uniquely a function of state law." House Report at 3. Nonetheless, and without any congressional testimony "concem[ing] DOMA's effects on the numerous federal programs at issue," Massachusetts v. U.S. Dep't of Health & Human Servs., 682 F.3d 1, 13 (1st Cir. 2012), the bill raced from introduction to enactment in under four months on a fast track. See House Report at 36 (dissenting views).1 As one Representative noted, "[t]here is no
1 Although Congress did not invite testinlony concerning the programmatic or other implications of DOMA, it did schedule witnesses who predicted that the failure to pass DOMA would lead to marriages "between parents and their grown children" and clainled that supporting DOMA was "no more 'homophobic' than it is 'siblingphobic' to oppose incest, or 'animalphobic' to want humans to make love only to their own species." See Defense of Marriage Act: Hearing on H.R. 3396 before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 104th Cong. 102, 132 (1996).

9
likelihood that Hawaii will complete this process until well into next year at the earliest, giving us plenty of time to legislate with more thought and analysis." Id. During the markup session in the House, one Representative commented with regard to Section 3 that Congress was "saying all sorts of things about this whole area of federal pensions and benefits without ... really understanding what we're doing." Markup Session on H.R. 3396, The Defense of Marriage Act, Subcomm. on the Constitution of the H. Comm. on the Judiciary, 104th Cong. 30-31 (1996).
The fiscal effects of DOMA were unknown at the time. The House rejected a proposal that would have required the General Accounting Office to analyze DOMA's budgetary effects on the federal government. 142 Cong. Rec. 17,092-93 (1996). Similarly, Senator Robert Byrd, one of the bill's sponsors and an expert on federal appropriations, asked: "How much is it going to cost ... if the definition of 'spouse' is changed? ... I know I do not have any reliable estimate of what such a change would mean, but then, I do not know of anyone who does." 142 Cong. Rec. 22,448 (1996).
DOMA sped through Congress in large part because of the strong views many members of Congress expressed at the time about the morality of being gay. The House Report explained that refusing federal recognition to marriages of gay couples reflects "moral disapproval of homosexuality." House Report at 16. During one day's debate, a Representative declared that homosexuality "is based

10
on perversion, that it is based on lust." 142 Cong. Rec. 16,972 (1996). Another Representative charged that homosexuality was "inherently destructive." Defense of Marriage Act: Hearing on H.R. 3396 Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 104th Cong. 237 (1996). At one point, the tenor of the debate led one Representative to observe: ''Words have been thrown around . . . . Today, I wrote down ... 'promiscuity, perversion, hedonism, narcissism, ... depravity and sin.'" 142 Cong. Rec. 17,079 (1996).
The congressional debate was also filled with predictions of dire consequences if same-sex relationships received legal recognition. One Representative cautioned that marriages between gay couples would "destroy thousands of years of tradition which has upheld our society." 142 Cong. Rec. 17,084 (1996). Another Representative exclaimed that "[w]e as legislators ... are in the midst of [ ] chaos." 142 Cong. Rec. 17,074 (1996). Yet another Representative stated that marriages of gay couples legitimized "unnatural" behavior. 142 Cong. Rec. 17,082 (1996). Two Representatives predicted that failure to pass DOMA would lead to "discussing pedophilia," 142 Cong. Rec. 17,077 (1996), and allowing marriage between "two men and one woman, or three men, four men, or an adult and a child," 142 Cong. Rec. 16,799 (1996). And another Representative warned that "no culture that has ever embraced homosexuality has ever survived." 142 Cong. Rec. 16,802 (1996).

11
C. Procedural Background
1. In 2010, as executor of Dr. Spyer's estate, Ms. Windsor filed this lawsuit against the United States in the United States District Court for the Southern District of New York. She sought a refund of the $363,053 paid by the estate and a declaratory judgment that DOMA violates the equal protection guarantee of the Fifth Amendment. J.A.172-73.
After the Attorney General notified Congress and the district court that the United States would not defend the constitutionality of DOMA, the Bipartisan Legal Advisory Group of the House of Representatives ("BLAG'') was permitted to intervene to defend DOMA.
Following full discovery, the district court granted Ms. Windsor's motion for summary judgment. Applying rational basis review, Judge Barbara S. Jones concluded that "DOMA's section 3 does not pass constitutional muster." Pet. App. 14a.
In particular, the district court could not "discern a logical relationship between DOMA" and the goal of promoting responsible procreation or child-rearing by straight couples. Id. at 30a. DOMA "has no direct impact on heterosexual couples at all," id.; nor, because marriage remains largely a creature of state law, does DOMA affect "the types of family structures in which children in this country are raised," id. at 19a. Citing the Court's decision in Romerv. Evans, 517 U.S. 620, 635 (1996), the district

12
court found that ''here, Congress's goal is 'so far removed' from the classification, it is impossible to credit its justification." Pet. App. 19a.
As for BLAG's claim that DOMA serves a federal interest in uniformity, the district court found any "link between the means and the end" to be constitutionally "problematic" because DOMA "intrude[d] upon the states' business of regulating domestic relations." Id. at 20a. Historically, "states have enjoyed the latitude to 'experiment[] and exercis[e] their own judgment in an area to which [they] lay claim by right of history and expertise."' Id. (quoting United States v. Lopez, 514 U.S. 549, 583 (1995) (Kennedy, J., concurring) (alteration in original)). The district court concluded that DOMA is not a legitimate means for serving any "newfound interest in promoting or maintaining consistency in the marital benefits that the federal government provides," id., because by "reexamin[ing] the states' decisions concerning same-sex marriage" and "sanction[ing] some of those decisions and reject[ing] others," DOMA "does not square with our federalist system of government." Id.
Accordingly, the district court declared DOMA "unconstitutional as applied to Plaintiff' and "awarded judgment in the amount of $363,053.00 plus interest and costs allowed by law." Id. at 23a.
2. The Second Circuit affirmed. The opinion, written by Chief Judge Dennis Jacobs, held that "review of Section 3 of DOMA requires heightened

13
scrutiny." U.S. Supp. Br. at 15a. Considering the factors this Court has used to decide whether to treat a particular classification as suspect or quasi-suspect, the Second Circuit found that "all four factors justifY heightened scrutiny" of discrimination on the basis of sexual orientation: "A) homosexuals as a group have historically endured persecution and discrimination; B) homosexuality has no relation to aptitude or ability to contribute to society; C) homosexuals are a discernible group with non-obvious distinguishing characteristics, especially in the subset of those who enter same-sex marriages; and D) the class remains a politically weakened minority." Id. at 15a-16a.
Applying heightened scrutiny, the court of appeals found that DOMA is not "substantially related to an important government interest." Id. at 18a. The court observed that, "[a]t argument, BLAG's counsel all but conceded" that its proffered justifications for Congress's having "enact[ed] DOMA may not withstand intermediate scrutiny." Id. at 24a. With respect to an ostensible federal interest in uniformity, the court of appeals observed that any "emphasis on uniformity is suspicious," because federal law has ''historically deferred to state domestic relations laws, irrespective of their variations," id.; because DOMA arguably created "more discord and anomaly," id. at 25a; and because DOMA also created "inefficiencies" in determining eligibility for federal benefits, id. at 26a.
Moreover, the court of appeals found that given that "DOMA is so broad, touching more than a

14
thousand federal laws," the statute was "not substantially related to fiscal matters," and therefore could not be justified as preserving the federal fisc. Id. at 27a-28a.
Responding to BLAG's argument that DOMA serves a federal interest in responsible parenting by heterosexual couples, the court of appeals echoed the district court's analysis and concluded that "[i]ncentives for opposite-sex couples to marry and procreate (or not) were the same after DOMA was enacted as they were before." Id. at 30a. Given that other courts had been "unable to find even a rational connection between DOMA and encouragement of responsible procreation and child-rearing," the court of appeals held that DOMA is not "substantially related" to that goal. Id.
Finally, the court of appeals recognized that some people object to marriage between same-sex couples or to homosexuality in general, often based on their religious beliefs. But secular "law (federal or state) is not concerned with holy matrimony." Id. at 31a. As the court of appeals explained, while a "state may enforce and dissolve a couple's marriage, ... it cannot sanctify or bless it. For that, the pair must go next door." Id.
S~YOFARGUMENT
DOMA's discriminatory treatment of married gay couples violates Ms. Windsor's right to the equal

15
protection of the laws as guaranteed by the Fifth Amendment.
This Court should apply heightened scrutiny to DOMA because it discriminates on the basis of sexual orientation. Classifications based on sexual orientation implicate all of the factors to which the Court has pointed in concluding that classifications based on race, sex, illegitimacy, alienage, and national origin or ancestry demand special scrutiny. First, lesbians and gay men have been subjected to a long history of discrimination. Second, a person's sexual orientation does not affect his or her ability to contribute to society. Third, sexual orientation is an immutable and distinguishing characteristic that is a core attribute of personhood. Fourth, lesbians and gay men lack the political power to protect themselves from invidious discrimination. BLAG hardly contests the first and second of these criteria, which are the most significant to the analysis.
Under heightened scrutiny, the federal government must at the very least show that the classification is "substantially related to the achievement of [important government objectives]." United States v. Virginia, 518 U.S. 515, 533 (1996). It cannot do so here.
Even under rationality review, DOMA is unconstitutional because it is not rationally related to any legitimate government interest. Although rational basis review necessarily depends on the facts of each case, the Court is particularly likely to find a

16
law irrational where it targets an unpopular or disfavored group for disparate treatment, imposes sweeping disabilities divorced from any specific factual context, or is so novel that it lies outside our "constitutional tradition." Romer, 517 U.S. at 633-34. DOMA suffers from all ofthese infirmities.
None of the interests that have been proffered, either at the time of enactment or as post hoc rationalizations by BLAG, are plausibly advanced by DOMA. DOMA's exclusion of married gay couples from federal marital benefits does not rationally induce straight couples to marry or have children within marriage. DOMA does not encourage uniformity in the administration of federal benefits. To the contrary, it creates disuniformity by treating legally married couples differently even within the same state of domicile. DOMA does not save the federal government money and, even if it did, that would not be a permissible rationale absent some non-arbitrary or nondiscriminatory reason for choosing to exclude married gay couples.
Finally, BLAG offers a variety of circular arguments based on dual sovereignty, tradition, and caution, each of which simply asserts an interest in treating gay couples who have married differently because, according to BLAG, gay couples have always been treated differently. Thus, even subjected only to rationality review, DOMA cannot stand.

17
ARGUMENT
"The Equal Protection Clause directs that 'all persons similarly circumstanced shall be treated alike.'" Plyler v. Doe, 457 U.S. 202, 216 (1982) (citation omitted). This Court has long held that the Fifth Amendment imposes the same obligation on the federal government. See Bolling v. Sharpe, 347 U.S. 497, 500 (1954). All couples who are validly married under state law are similarly situated, regardless of whether those couples are straight or gay. The federal government's decision to treat them differently, based solely on their sexual orientation, triggers, and fails, heightened scrutiny. But even under rationality review, DOMA is unconstitutional.
I. BECAUSE DOMA DISCRIMINATES ON THE BASIS OF SEXUAL ORIENTATION, IT TRIGGERS- AND FAILSHEIGHTENED SCRUTINY
The Court has held that some classifications are so much "more likely than others to reflect deepseated prejudice rather than legislative rationality in pursuit of some legitimate objective," Plyler, 457 U.S. at 216 n.14, that their use triggers especially searching judicial review. Over the years, the Court has applied heightened judicial scrutiny to classifications based on race, sex, illegitimacy, alienage, and national origin or ancestry. See Clark v. Jeter, 486 U.S. 456, 461 (1988); City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976); Graham v. Richardson, 403 U.S. 365, 371-72 (1971).

18
In reaching the conclusion that these classifications are presumptively unconstitutional, the Court has relied on a constellation of factors: (1) whether the group has suffered a history of discrimination; (2) whether the group's members differ from other individuals in a way that bears on their ability to perform or to contribute to society; (3) whether individuals cannot, or should not be expected to, change the characteristic that defines membership in the class; and (4) whether the group lacks political power because "prejudice" against the group "curtail[s] the operation of those political processes ordinarily to be relied upon." United States v. Carolene Prods. Co., 304 U.S. 144, 153 n.4 (1938); Frontiero v. Richardson, 411 U.S. 677, 686-88 (1973). No one of these factors is dispositive, but the Court's decisions demonstrate that the first two are at the core of the concept. Thus, for example, classifications based on alienage receive heightened scrutiny, despite the fact that noncitizens can be naturalized, and classifications based on sex receive heightened scrutiny even though women constitute a majority of the electorate. See Graham, 403 U.S. at 371-72; Frontiero, 411 U.S. at 686-88.
In this case, the court of appeals correctly held that discrimination on the basis of sexual orientation - which DOMA surely constitutes" - requires
2 BLAG floats the curious suggestion that DOMA "does not classify based on a married couple's sexual orientation," because it is theoretically possible that a man and a woman, each of whom is gay, would marry each other and be treated as

19
heightened scrutiny. U.S. Supp. Br. at 15a-16a. This Court should hold the same. As this Court has already recognized, laws burdening lesbians and gay men that were "once thought necessary and proper" may in fact "serve only to oppress," Lawrence, 539 U.S. at 579, and overly broad laws discriminating on the basis of sexual orientation are impermissible, Romer, 517 U.S. 620. Experience has shown that government discrimination against lesbians and gay men is not entitled to a presumption of constitutionality, just as this Court concluded over time that classifications based on gender and illegitimacy, which were initially subject to rational basis review, require heightened scrutiny because they are prone to abuse. See Jimenez v. Weinberger, 417 U.S. 628 (1974); Reed v. Reed, 404 U.S. 71 (1971).
Applying heightened scrutiny, which requires that the classification be "substantially related to the achievement of [important governmental] objectives," Virginia, 518 U.S. at 533, DOMA cannot be sustained.
married, while two straight men who married each other would be treated as unmarried. BLAG Br. 25 n.7. If the Court were to accept that reading of DOMA- based, though it is, on a highly implausible, unrealistic view of who marries whom - then DOMA would constitute sex discrimination, which since the time of Frontiero, 411 U.S. 677, has triggered heightened scrutiny. See Br. of Amicus Curiae National Women's Law Center et a!.

20
1. Gay men and lesbians have experienced a pervasive history of discrimination. Ail this Court recognized in Lawrence, "for centuries there have been powerful voices to condemn homosexual conduct as immoral." 539 U.S. at 571. Ail a result, lesbians and gay men have confronted discrimination at the hands of both governmental and private actors.
Government discrimination has taken many forms. Until this Court's decision only a decade ago in Lawrence, states used their criminal laws to discriminate against gay men and lesbians, often making their private, consensual sexual intimacy a felony punishable by imprisonment. See Bowers, 478 U.S. 186. For many years, the federal government refused to employ gay people and engaged in surveillance to purge supposed "homosexuals" from the federal civil service. J.A.358-62. (For Ms. Windsor, the threat of these official government policies was quite real. See supra pp.2-3.) Congress defined gay people as having a "psychopathic personality" that disqualified them from admission into the country. Boutilierv. INS, 387 U.S. 118, 120 (1967). Schoolteachers were fired from their jobs simply for revealing their sexual orientation. Rowland v. Mad River Local Sch. Dist., 470 U.S. 1009 (1985).
BLAG points out that ''homosexuals as a class have never been politically disenfranchised." BLAG Br. 57. True enough, but irrelevant. Formal disenfranchisement has never been used as a litmus test for applying heightened scrutiny. Classifications

21
based on illegitimacy, for example, are suspect, Mills v. Habluetzel, 456 U.S. 91, 99 (1982), but citizens born to unmarried parents have never been disenfranchised. For nearly a century, women have had the right to vote, and yet this Court applies heightened scrutiny to statutes adopted long after their enfranchisement.
Private discrimination against gay people also has been and remains pervasive. Campaigns have spread false stereotypes of lesbians and gay men as child molesters and unfit parents, stereotypes that linger to this day. J.A.370-76. Lesbians and gay men continue to face the ever-present threat of anti-gay violence. J.A.385-86; BLAG Objections and Resp. to Pis.' First Req. for Admiss. at 4-5, Windsor v. United States, No. 10 Civ. 8435 (BSJ) (JCF) (S.D.N.Y. Aug. 1, 2011), ECF No. 51 (admitting that lesbians and gay men have been and continue to be subjected to violence).'
3 The continued antipathy to gay people is reflected in the tone and content of many of the amicus briefs submitted in this case in support of BLAG. Amici refer to gay men and lesbians as "immoral," Br. of Amici Curiae Chaplain Alliance for Religious Liberty eta!. 18; Br. of Amicus Curiae Westboro Baptist Church 26, "sinful," Br. of Amici Curiae Catholic Answers et a!. 13, "radically disrupt[ive] to society," Br. of Amicus Curiae Manhattan Declaration 14, "abhorred and opposed," Br. of Amicus Curiae Foundation for Moral Law 3, and a ''vector of injury and disease," Br. of Amicus Curiae David Boyle 3. One set of amici argues that overturning DOMA will "make it more socially acceptable for fathers to leave their families." Br. of Amici Curiae Robert P. George et a!. 22. Another compares the

22
BLAG suggests that discrimination against lesbians and gay men is a relatively short-lived phenomenon that began in the twentieth century. BLAG Br. 57. Not so. Disapproval, stigma, and sanctions against homosexual conduct have existed in America since its founding, and discrimination against gay people has existed since people started to identify as gay in the late 1800s. J.A.345-48. Besides, "ninety years of discrimination" is enough; "whether such discrimination existed in Babylon is neither here nor there." U.S. Supp. Br. at 17a.
2. In deciding that heightened scrutiny should apply to a particular classification, a second factor on which this Court has relied is whether the classification is based on a characteristic that "frequently bears no relation to ability to perform or contribute to society." Frontiero, 411 U.S. at 686; accord Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440-42 (1985); Mathews v. Lucas, 427 U.S. 495, 505 (1976). This makes sense: if a characteristic does not predict ability to participate in civil society, the courts should be skeptical of governmental reliance on it as a basis to categorize people.
recognition of Ms. Windsor's marriage by New York to the "Fugitive Slave Act ... that forced residents of New York ... to ... assist their slave-state neighbors to return slaves who had escaped back to slavery." Br. of Amicus Curiae David Z. Schwartz 20. Still another analogizes "same-sex marriage advocates" to the "pro-slavery advocates of the 1850's." Br. of Amicus Curiae Eagle Forum 13.

23
Sexual orientation has nothing to do with "impairment in judgment, stability, reliability, or general social or vocational capabilities." J.A.267-68 (quoting Am. Psychiatric Ass'n, Position Statement on Homosexuality and Civil Rights, 131 Am. J. Psychiatry No. 4, 497 (1974)). Despite pervasive discrimination, lesbians and gay men have served with great distinction in virtually every facet of American society, as artists, athletes, academics, soldiers, scientists, lawyers, judges, psychologists like Dr. Spyer, and computer programmers like Ms. Windsor.
A person's sexual orientation is unlike "such nonsuspect statuses as intelligence or physical disability," Frontiero, 411 U.S. at 686, which the Court has noted may affect a person's capabilities, or a person's age, which is generally associated with a "decline[ ]" in "physical ability," Mass. Bd. of. Ret. v. Murgia, 427 U.S. 307, 315 (1976). In other words, sexual orientation has no bearing on a person's ability to "cope with and function in the everyday world." Cleburne, 473 U.S. at 442.
BLAG does not contest the equal ability of gay people to function in society. Rather, BLAG improperly fastens instead on the fact that gay couples "engage in relationships that do not produce unplanned and unintended offspring." BLAG Br. 54.
But this "distinguishing characteristic," id., has no bearing on a gay person's "ability to perform or contribute to society." As this Court explained in

24
Cleburne, in deciding whether heightened scrutiny should apply, courts "should look to the likelihood that governmental action premised on a particular classification is valid as a general matter, not merely to the specifics of the case before us." 473 U.S. at 446 (emphasis added). BLAG fails to explain how gay people's immunity from unintended pregnancies bears on their ability, for example, to "cope with" the death of a loved one, "function in" a surgical residency program, "perform" in the armed forces, "participate" on a board of directors, or "contribute to" the financial success of a company. Cleburne, 473 U.S at 442; Frontiero, 411 U.S. at 686; Lucas, 427 U.S. at 505. Differences in forms of sexual intimacy, whatever their procreative implications, are simply not "characteristic[s] that the government may legitimately take into account in a wide range of decisions." Cleburne, 473 U.S. at 446 (emphasis added). At most, BLAG's argument amounts to an (unsuccessful) attempt at a defense of DOMA on the merits; it is irrelevant to whether sexual orientation classifications get heightened scrutiny.
Indeed, under BLAG's misformulation, discrimination against women would never have received heightened scrutiny either. This Court has repeatedly recognized that certain "[p]hysical differences between men and women" remain "enduring," and in some respects '"[t]he two sexes are not fungible."' Virginia, 518 U.S. at 533 (quoting Ballard v. United States, 329 U.S. 187, 193 (1946)). Those differences may arguably justify some differences in treatment. But the irrelevance of those

25
differences to a wide range of government decisions explains why sex classifications trigger heightened scrutiny.
To the extent that BLAG or its a.m.zc1 are arguing that gay people are distinctively impaired in their ability to contribute to society generally because they are not always biologically related to their children, that is wrong. Thousands of straight couples are not parents at all; still other thousands of straight couples are not the biological parents of their children because they adopted their children, because they are stepparents, or because they used assisted reproductive technologies that rely on donor eggs or sperm. Yet BLAG does not dare suggest that those individuals are less able to contribute to society.'
3. Another factor this Court sometimes considers when determining whether a classification merits heightened review is whether there are "obvious, immutable, or distinguishing characteristics that define" the group at issue, Bowen v. Gilliard, 483 U.S. 587, 602 (1987), and that members of the group should not be required to change.'
4 If gay people's general immunity from unmtended pregnancies could ever be relevant to government decision-making, it could, at most, ouly be with respect to a statute intended to address unintended pregnancies.
5 The Court's cases establish that a defining characteristic need not be absolutely unchangeable to form the basis of a suspect

26

Sexual orientation is such a trait. BLAG's

argument that sexual orientation is not a defining

characteristic because it is somehow "fluid" fails as a

matter of fact and law.6 Mainstream scientific

opinion establishes that most gay people cannot

change their orientation at will. See Am.

Psychological Ass'n, Report of the American

Psychological Association Task Force on Appropriate

Therapeutic Responses to Sexual Orientation, at v

(2009),

available

at

http://tinyurl.com/

APAReportTherapy. "Scientific proof aside, it seems

appropriate to ask whether heterosexuals feel

capable of changing their sexual orientation."

classification. See, e.g., Nyquist v. Mauclet, 432 U.S. 1, 9 n.11 (1977) (aliens may apply for citizenship); Lucas, 427 U.S. at 506 n.12 (illegitimate children may be legitimated); Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 339 (1987) (suggesting that discrimination against a particular religion may be subjected to heightened scrutiny under the Equal Protection Clause as well as the First Amendment even though people can change religion).
6 In its opposition to Ms. Windsor's motion for summary judgment below, BLAG cited the work of Professor Lisa Diamond, a leading expert on women's sexuality. BLAG Opp'n to Windsor Mot. for Summ. J. at 10, 11, Windsor v. United States, No. 10 Civ. 8435 (BSJ) (JCF) (S.D.N.Y. Aug. 1, 2011), ECF No. 50. In a subsequent affidavit, Professor Diamond responded definitively to BLAG's contentions as to the ''fluidity" of sexual orientation: "If 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." J.A.520.

27
Watkins v. U.S. Army, 875 F.2d 699, 726 (9th Cir. 1989) (Norris, J., concurring). But even if sexual orientation were "fluid" for some people, it is fixed for most. It is for Ms. Windsor. Contrary to suggesting the "fluidity" of her sexual orientation, her brief, unsuccessful marriage to Saul Windsor demonstrates that being gay was not a matter of "choice," but is a fundamental aspect ofher identity. J.A.494-96.
Moreover, as lower courts to consider the issue since Lawrence have recognized, "[w]here there is overwhelming evidence that a characteristic is central and fundamental to an individual's identity ... an individual should not be required to abandon it. To hold otherwise would penalize individuals for being unable or unwilling to change a fundamental aspect of their identity." Pedersen v. Office of Pers. Mgmt., 881 F. Supp. 2d 294, 329 (D. Conn. 2012); see also Golinski v. Office of Pers. Mgmt., 824 F. Supp. 2d 968, 987 (N.D. Cal. 2012).
BLAG's argument ignores a central reason why this factor matters. As the Second Circuit observed, the Court examines this factor in part to determine whether the characteristic may serve as "an obvious badge" that makes a group particularly vulnerable to discrimination. See Lucas, 427 U.S. at 506; see also Frontiero, 411 U.S. at 686 (heightened scrutiny appropriate because of "the high visibility of the sex characteristic"). Sexual orientation "is necessarily disclosed when two persons of the same sex apply for a marriage license ... or when a surviving spouse of a same-sex marriage seeks the

28
benefit of the spousal deduction (as Windsor does here)." U.S. Supp. Br. at 20a.
BLAG argues that discrimination against gay people should not receive heightened review because homosexuality is, in BLAG's view, defined solely by "a propensity to engage in certain conduct." BLAG Br. 55. That argument is demeaning to people like Ms. Windsor, for whom a lesbian or gay sexual orientation is a fundamental aspect of their identity, and in any event has already been rejected by this Court. In Lawrence and again in Christian Legal Society v. Martinez, 130 S. Ct. 2971 (2010), the Court rejected the false distinction between proscribing conduct and targeting gay people for disparate treatment. Just as a "tax on wearing yarmulkes is a tax on Jews," Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 270 (1993), so too, an estate tax levied on married gay couples, but not on married straight couples, is a tax on gay people.
4. Although gay people have made significant strides in pursuing equal treatment under the law, it remains true that lesbians and gay men are clearly a numerical minority and frequently lack the political power to defend themselves against the majority. J.A.397-435. The fact that gay couples are the only legally married couples in the entire nation who cannot benefit from the wide range of federal benefits provided to all other legally married couples is itself powerful evidence of gay people's ongoing political vulnerability.

29
The political power of gay men and lesbians today stands in sharp contrast to the political efficacy of women in 1973, when the Court concluded in Frontiero v. Richardson that sex-based classifications required heightened scrutiny. 411 U.S. at 688. Congress had already passed Title VII of the Civil Rights Act of 1964 and the Equal Pay Act of 1963. See Frontiero, 411 U.S. at 687-88. There is still no federal ban on sexual orientation discrimination in employment, housing, or public accommodations, and 29 states have no such protections either. J.A.405, 408-09. As political power has been defined by the Court for purposes of heightened scrutiny analysis, lesbians and gay men do not have it.
Indeed, the democratic process has been used to thwart protections for lesbians and gay men more frequently and with more success than against any other group in recent history. Gay people "have seen their civil rights put to a popular vote more often than any other group." Barbara S. Gamble, Putting Civil Rights to a Popular Vote, 41 Am. J. Pol. Sci. 245, 257 (1997). Political scientist Gary Segura provided expert testimony below that "[e]vidence from the past two decades ... has demonstrated that gay men and lesbians are especially vulnerable in the context of direct democracy." J.A.409; see also J.A.410-12 (expert testimony detailing initiatives); Romer, 517 U.S. at 623-24; Penyv. Brown, 671 F.3d 1052, 1063-64 (9th Cir. 2012) (describing Proposition 8); cert. granted sub nom. Hollingsworth v. Peny, 133 S. Ct. 786 (2012) (Mem.); Br. of Amici Curiae Political Science Professors. This repeated use of

30
majoritarian "direct democracy" to disadvantage a single minority group is extraordinary in our nation's history.
Not only do gay people continue to face repeated attempts to deprive them of civil rights, but their efforts to obtain "protections taken for granted by most people," Romer, 517 U.S. at 631, have been largely unsuccessful. As noted above, there is no federal civil rights protection for sexual orientation. Starting in 1977, legislation banning sexual orientation discrimination in employment and housing was introduced in every Congress over two decades but never made any progress toward enactment. More recently, advocates have attempted to achieve more modest protections by introducing an employment-only version in nine of the last ten Congresses. Yet, despite the fact that nearly 90% of Americans express support for such protections for lesbians and gay men, even that legislation has passed only once in the House and never in the Senate. See Gay and Lesbian Rights, Gallup 2008, available at http://tinyurl.com/GLRightsGallup; Br. of Amici Curiae Members of the U.S. House of Representatives and U.S. Senators.
That there surely have been political gains for lesbians and gay men in recent years does not alter this analysis. J.A.399-400, 407-08. "The question is not whether homosexuals have achieved political successes over the years .... The question is whether they have the strength to politically protect themselves from wrongful discrimination." U.S.

31
Supp. Br. at 21a. BLAG's contention that "gays and lesbians are one of the most influential, bestconnected, best-funded" groups, BLAG Br. 53, contains unfortunate echoes of stereotypes about other minority groups.7
5. If this Court applies heightened scrutiny, DOMA must fail. As the Second Circuit concluded, DOMA is not substantially related to an important government purpose.
At oral argument before the court of appeals, "BLAG's counsel all but conceded" that its proffered justifications for DOMA could "not withstand intermediate scrutiny." U.S. Supp. Br. at 24a. Before this Court, BLAG relegates its entire argument on whether DOMA can survive heightened scrutiny to a single eight-line footnote. BLAG Br. 5758 n.10. But when heightened scrutiny applies, the government must proffer "a tenable justification" describing "actual state purposes, not rationalizations for actions in fact differently grounded." Virginia, 518 U.S. at 535-36 (emphasis added). As Ms. Windsor explains in Part II of this brief, none of the ostensible federal interests Congress articulated in 1996 that BLAG identifies here satisfies even rationality review. A fortiori, they cannot withstand heightened scrutiny. AB for the post hoc rationalizations for DOMA BLAG asserts in
7 Under BLAG's articulation of this factor, it is not clear whether even laws classifying on the basis of race or gender would still be entitled to receive heightened scrutiny today.

32
this case, they not only fail rationality review, but cannot properly be taken into account in the heightened scrutiny analysis at all. Virginia, 518 U.S. at 535-36.
II. DOMA FAILS RATIONAL BASIS REVIEW
DOMA is also unconstitutional under rational basis review as the Court has applied that test. Particularly when viewed in the context of who is disadvantaged by the law, its tremendous breadth, and its impact on the relationship between federal and state law, DOMA serves no legitimate federal interest.
A. DOMA HAS CHARACTERISTICS THATTHISCOURTHAS IDENTIFIED IN PRIOR CASES AS EVIDENCE OF IRRATIONALITY
Equal protection principles demand that a statutory classification ''bear a rational relationship to an independent and legitimate legislative end." Romer, 517 U.S. at 633. This requirement protects "the individual from state action which selects him out for discriminatory treatment by subjecting him to taxes not imposed on others of the same class." Hillsborough Twp. v. Cromwell, 326 U.S. 620, 623 (1946); see also Armour v. City ofIndianapolis, 132 S. Ct. 2073, 2084-85 (2012) (Roberts, C.J., dissenting). Thus "even in the ordinary equal protection case calling for the most deferential of standards, [the Court] insist[s] on knowing the relation between the

33
classification adopted and the object to be attained." Romer, 517 U.S. at 632. Because this challenge is brought to a federal statute, the government interest must be a federal one.
1. Although rational basis review is generally deferential and necessarily depends on the facts and circumstances of each case, it is not "toothless." Lucas, 427 U.S. at 510. This Court's decisions show that laws fail rationality review in a variety of contexts relevant here. See, e.g., Br. of Amici Curiae Gay & Lesbian Advocates & Defenders et al.; Br. of Amicus Curiae The Institute for Justice.
First, laws fail rationality review where the actual purpose of the law is illegitimate. A statute cannot be drawn simply "for the purpose of disadvantaging the group burdened by the law." Romer, 517 U.S. at 633; see also Cleburne, 473 U.S. at 450; U.S. Dep't of Agric. v. Moreno, 413 U.S. 528, 534 (1973). When a classification has been chosen '"because of,' [and] not merely 'in spite of,' its adverse effects upon an identifiable group," a reviewing court must ask whether the statute serves some purpose beyond a mere desire to harm the targeted group. Pers. Adm'r of Mass. v. Feeney, 442 U.S. 256, 279 (1979). Otherwise, as this Court has warned, "any discrimination subject to the rational relation level of scrutiny could be justified simply on the ground that it favored one group at the expense of another." Metro. Life Ins. Co. v. Ward, 470 U.S. 869, 882 n.10 (1985). While sometimes using the term "animus," see, e.g., Romer, 517 U.S. at 632, the Court's

34
disapproval extends to laws based on irrational prejudice, unease, "negative attitudes," "fear," ''bias," or the ''bare ... desire to harm a politically unpopular group," as well as laws reflecting stereotypical thinking about people who appear to be different or who have been historically disfavored. See Cleburne, 473 U.S. at 448, 450; Palmore v. Sidoti, 466 U.S. 429, 433 (1984); Moreno, 413 U.S. at 534.
Second, a law can fail rationality review when it "targets a narrowly defined group and then imposes upon it disabilities that are so broad and undifferentiated as to bear no discernible relationship to any legitimate governmental interest." Andrew Koppelman, Romer v. Evans and Invidious Intent, 6 Wm. & Mary Bill Rts. J. 89, 94 (1997); C£ City ofBoerne v. Flores, 521 U.S. 507, 533 (1997) (while Congress must have "wide latitude," there "must [still] be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end"). In such situations, the law's breadth may "outrun and belie any legitimate justifications that may be claimed for it." Romer, 517 U.S. at 635.
Third, laws that do not fit "within our constitutional tradition" require "careful consideration to determine whether they are obnoxious to the constitution[]." Romer, 517 U.S at 633. For example, statutes provoke suspicion when they upset the relationship between the federal government and the states in novel or unusual ways. See, e.g., United States v. Morrison, 529 U.S. 598,

35
615-16 (2000) (expressing concern for a federal law's intrusion into "family law" including "marriage, divorce, and childrearing"); United States v. Lopez, 514 U.S. 549, 564 (1995). Sometimes "the most telling indication of [a] severe constitutional problem" will be "the lack of historical precedent" for Congress's intervention. Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 130 S. Ct. 3138, 3159 (2010) (internal citation omitted).
2. DOMA raises all three of these red flags. First, DOMA was enacted out of "insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different in some respects from ourselves." Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 374 (2001) (Kennedy, J., concurring). The Act was rushed through Congress at a time when there was no realistic prospect of gay couples getting married in the near future anywhere, even in Hawaii. The legislative history is replete with language of panic and fear, as well as stereotypical thinking about the purported dangers of gay people or their relationships. Congress gave no consideration to the ways DOMA would impact the thousands of federal programs implicated. It made no attempt to assess DOMA's impact on the federal budget. It expended no effort to address the obvious irrational consequences of DOMA's sweeping applicability, such as DOMA's exclusion of married gay couples from federal financial disclosure requirements or conflict of interest rules. The very language of its title indicates that DOMA was

36
enacted to defend or "guard against" people who appear to be different.
Second, DOMA's scope is uniquely broad. By amending the Dictionary Act, rather than any specific federal program, DOMA categorically disqualifies gay people who are married from all federal rights, privileges, and obligations of marriage, creating a sweeping exclusion that is disconnected from any specific rational justification. DOMA is arguably broader in scope even than Colorado's Amendment 2 in Romer, since, in contrast to an antidiscrimination statute, it affects more than a thousand federal laws and countless regulations and administrative decisions governing nearly every aspect of individuals' interactions with the federal government. U.S. Supp. Br. at 27a-28a.
Third, DOMA represents an abrupt departure from the traditional relationship between the federal government and the states. Prior to DOMA, "Congress ha[d] never purported to lay down a general code defining marriage or purporting to bind the states to such a regime." Massachusetts, 682 F.3d at 1, 12. "DOMA was therefore an unprecedented intrusion 'into an area of traditional state regulation."' U.S. Supp. Br. at 25a (quoting Massachusetts, 682 F.3d at 13). State marriage laws have long varied on issues such as recognition of common law marriage, the age of consent to marry, the degree of consanguinity permitted, and divorce. J.A.291-304. Despite these differences, the federal government "fully embraced these variations and

37
inconsistencies in state marriage laws," even though many involved . "similarly politically-charged, protracted, and fluid debates at the state level." Gill v. Office of Pers. Mgmt., 699 F. Supp. 2d 374, 391-92 (D. Mass. 2010), afl'd sub nom Massachusetts v. U.S. Dep't of Health & Human Servs., 682 F.3d 1 (1st Cir. 2012).
BLAG's assertion that Congress has "a long history ... [of] supplying its own definitions of marriage for various federal purposes" is misleading. BLAG Br. 4. To be sure, Congress has adopted some narrow statutes distinguishing among marriages, but none purported to disregard an entire category of state-sanctioned marriages. Rather, as the First Circuit has explained, those statutes were all tailored "to the particular [federal] program or personnel involved." Massachusetts, 682 F.3d at 12; see also Br. of Amici Curiae Family Law Professors. DOMA's categorical exclusion of the marriages of gay couples is thus entirely different.
3. The characterization of DOMA as a typical ''line-drawing'' statute is equally misguided. BLAG Br. 29 (quoting FCC v. Beach Commc'ns, 508 U.S. 307, 316 (1993)). At the time Congress acted, there was already a line in place: the federal government generally recognized all marriages that were valid under state law. More specifically, when it came to the federal estate tax - the program at issue in this case - the preexisting line was whether the decedent was validly married under the law of the state of domicile at the time of death. DOMA therefore filled

38
no gap in the existing legal regime. Moreover, none of the line-drawing cases that BLAG cites involve anything like DOMA's distinction on the basis of sexual orientation between two classes of couples who are legally married under state law. Indeed, even in the "line-drawing" cases relied upon by BLAG, the Court insisted on a constitutionally permissible rationale for the line drawn.8
8 See, e.g., Beach Commc'ns, 508 U.S. at 317-20 (statutory distinction between cable television facilities that served separately owned and managed buildings and those that served buildings under common ownership was justified by regulatory efficiency, avoiding monopoly, and differences in cable subscriber influence); Schweiker v. Wilson, 450 U.S. 221, 238 (1981) (federal disability benefits scheme that paid stipends to Medicaid recipients in public mental health facilities, but not to residents who did not receive Medicaid, was based on a permissible belief that Medicaid recipients were needier); Mathews v. Diaz, 426 U.S. 67, 83 (1976) (provision that permitted elderly resident citizens and some legal aliens to enroll in Medicare, but denied eligibility to aliens who had not resided in the United States for five years, was rationally based on differences in individuals' connection to the United States); Vill. of Belle Terre v. Boraas, 416 U.S. 1, 9 (1974) (zoning ordinance limiting occupancy of one-family residences could reasonably distinguish between families and groups of college students because of the different likelihood of occupants' increasing the amount of traffic and noise).

39
B. DOMA IS NOT RATIONALLY RELATED TO THE ACHIEVEMENT OF ANY LEGITIMATE FEDERAL INTEREST
The interests that BLAG offers or that can be gleaned from the legislative history fall into three general categories: (1) procreation-related interests, (2) uniformity/conservation of resources interests, and (3) interests in dual sovereignty, tradition, and caution. None provides a rational basis for DOMA.
1. DOMA Is Not Rationally Related To Any Legitimate Federal Interest In Procreation
BLAG's most developed (and its only particularized) justification for DOMA's exclusion of married gay couples is that DOMA somehow channels straight couples who may have unplanned pregnancies into marriage, encourages biological parents to raise children together, and provides children with a male and female role model. Denying federal marital obligations and protections to married gay couples is rational, BLAG asserts, because gay couples and straight couples, "whatever their other similarities, are not similarly situated with regard to their propensity to result in unplanned pregnancies." BLAGBr. 47.
That BLAG advances only this distinction between gay and straight married couples speaks volumes about the lack of any rational basis for

40
DOMA's comprehensive discrimination against married gay couples. This one difference cannot explain the federal government's decision to impose a sweeping disability on married gay couples that excludes them from countless federal programs and protections, and that only harms their children. Because this distinction is based on the one feature that distinguishes married gay couples from married straight couples, what BLAG is really arguing is that it is acceptable to discriminate against married gay couples simply because they are gay.9
1. DOMA cannot be justified simply by pointing out that Congress has a legitimate interest in the well-being of children. Rather, excluding married gay couples from all federal benefits and responsibilities must bear some logical connection to the well-being of children. It does not.
First, as nearly every court to have considered the question has noted - and as even BLAG concedes, BLAG Br. 32, 43 - DOMA does not prevent gay couples from marrying under state law or change state adoption or parenting laws. See, e.g., Massachusetts, 682 F.3d at 14-15; Pedersen, 881 F. Supp. 2d at 340-41; Dragovich v. U.S. Dep't of
9 In addition, BLAG cannot justify a classification by pointing to biological differences between gay and straight couples -which ultimately come down to biological differences between men and women - unless those differences are sufficiently material that they satisfy heightened scrutiny. See, e.g., Virginia, 518 U.S. at 532-34.

41
Treasury, 872 F. Supp. 2d 944, 959 (N.D. Cal. 2012). There is no reason to think that DOMA has the effect of preventing gay couples from deciding to raise children, and any such purpose would be illegitimate because all individuals possess a fundamental right to decide ''whether to bear or beget a child." Eisenstadt v. Baird, 405 U.S. 438, 453 (1972).
Even less does DOMA influence the procreative behavior of heterosexuals. Denying federal protections to married gay couples will not affect whether straight couples marry or have children who are biologically related to both parents. Whatever benefits or protections straight couples receive from the federal government do not come from DOMA. Those benefits or protections come from various independent programmatic statutes (like the Internal Revenue Code, the Social Security Act, or the FMLA). All DOMA does is bar married gay couples from also gaining access to those programs. As the First Circuit recognized, "[t]his is not merely a matter of poor fit of remedy to perceived problem, but a lack of any demonstrated connection between DOMA's treatment of same-sex couples and its asserted goal of strengthening the bonds and benefits to society of heterosexual marriage." Massachusetts, 682 F.3d at 15 (citations omitted); see also U.S. Supp. Br. at 29a ("All [of BLAG's procreation-related] rationales have the same defect: they are cast as incentives for heterosexual couples, incentives that DOMA does not affect in any way."). A total lack of connection violates equal protection at any level of

42
review. Hooperv. Bernalillo Cnty. Assessor, 472 U.S. 612, 621-22 (1985).
BLAG acknowledges this essential disconnect, but claims nevertheless that federal recognition "can still [a]ffect such institutions at the margin." BLAG Br. 43. Significantly, BLAG does not, and cannot, suggest that fewer straight couples would get married without DOMA. The best that BLAG and its amici can come up with is an argument that recognizing the marriages of couples who cannot "inherently" procreate might suggest to straight couples that marriage is about things like love and commitment between two adults and not simply and solely about having children. BLAG Br. 10, 45. Under this argument, federal recognition of gay couples' marriages would somehow make straight couples less likely to marry before having children. See, e.g., Br. of Amicus Curiae Helen M. Alvare 34; Br. of Amici Curiae Robert P. George et al. 15-20.
This far-fetched theory has nothing to do with DOMA. It is irrational, fantastical thinking to believe that the federal government's decision to treat married gay couples as unmarried under federal law will encourage straight couples to marry before having children. Cleburne, 473 U.S. at 446 (government "may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational"). Put more concretely, no straight couple would decide to marry or have children simply because Ms. Windsor had to pay $363,053 in federal estate taxes.

43
Conversely, no straight couple would call off their wedding if Ms. Windsor receives a tax refund.10 Cf Weberv. Aetna Cas. & Sur. Co., 406 U.S. 164, 173 (1972) (pointing out the illogic of thinking that "persons will shun illicit relations because the offspring may not one day reap the benefits of workmen's compensation").
2. Further, DOMA cannot logically be explained by the fact that gay couples do not have unplanned pregnancies. It is not enough for BLAG simply to identify some difference between gay and
10 Relying on Johnson v. Robison, 415 U.S. 361 (1974), BLAG argues that DOMA is rational ''because the institution of marriage arose in large measure in response to a unique social difficulty that opposite-sex couples, but not same-sex couples, posed." BLAG Br. 49. Johnson involved a statute that created a benefit for veterans who had served in the military, but denied the benefit to those who were conscientious objectors. Johnson, 415 U.S. at 362-63. This Court upheld the statute because granting benefits only to those who served in the military could help compensate for the special hardships and risks of active military service. In so holding, the Court explained that, if ''the inclusion of one group promotes a legitimate governmental purpose, and the addition of other groups would not, we cannot say that the statute's classification of beneficiaries and nonbeneficiaries is invidiously discriminatory." Id. at 383. But DOMA does not ''include" married straight couples or grant a single benefit to them; rather, it excludes married gay couples from all federal programs. See U.S. Supp. Br. at 27a (DOMA "functionally eliminated longstanding federal recognition of all marriages that are properly ratified under state law - and the federal benefits (and detriments) that come with that recognition." (emphasis added)).

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straight couples; it must articulate how that difference "rationally explains the different treatment." Eisenstadt, 405 U.S. at 447; see also Romer, 517 U.S. at 631-33. Any procreative rationale for DOMA is both too narrow and too broad. It is too narrow in the sense that federal law grants recognition to many marriages that cannot result in children. Older married couples, infertile married couples, and married couples who choose not to have children are all given federal recognition. Cf. Lawrence, 539 U.S. at 605 (Scalia, J., dissenting) ("[T]he sterile and the elderly are allowed to marry.").
And any procreative rationale for DOMA is too broad in that DOMA touches upon a vast array of programs that have nothing to do with children. While Congress can and does rationally choose to give some benefits and protections to people who have children rather than those who do not (e.g., the child tax credit, adoption tax credit), a huge number of the benefits and responsibilities affected by DOMA
for example, federal employee pensions, criminalization of retaliation against a federal official's spouse, and conflict of interest statutes have no relationship to whether a married person or couple have children. Congress cannot justify treating married gay couples as unmarried for all federal purposes on the ground that their unions cannot result in inadvertent pregnancies. Cleburne, 473 U.S. at 446.
Similarly, it is impossible to credit BLAG's suggestion that the purpose of DOMA was to "offer[ ]

45
special encouragement and support for relationships that can result in mothers and fathers jointly raising their biological children." BLAG Br. 48. Federal policy does not favor biological over non-biological (including adopt~d) children. See, e.g., 2 Am. Jur. 2d Adoption § 172 (2013) ("[N]o legal distinction is drawn between adopted children and natural born children ... the rights and status of an adopted child are the same as those of a natural child."); see also Br. of Amici Curiae Professors of Family and Child Welfare Law. The overwhelming majority offamilies in which one or both parents are not biologically related to the child involve heterosexual couples. This is true because of adoption (stepparent and otherwise), as well as the increasing use of assisted reproductive technologies that rely on donor sperm or eggs. If federal policies designed to support children do not distinguish between biological and nonbiological children, a desire to encourage biological parenthood cannot explain DOMA even as to the federal laws related to children, let alone the vast majority ofDOMA-affected laws that are unrelated to children. Cf Eisenstadt, 405 U.S. at 447-50 (holding that a justification cannot be a rational basis where it ''has at best a marginal relation to the proffered objective"). Moreover, a federal statute intended to favor biological over non-biological children would itself raise significant equal protection issues. See, e.g., Jimenez, 417 U.S. at 631-32.U
11 This Court has held that "[p]enalizing" children "is an ineffectual- as well as unjust- way of deterring the parent."

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3. Because there is no logical connection between what DOMA does and whether any couples, straight or gay, married or unmarried, have children, there is no need for this Court to engage with the discredited assertions of BLAG and its amici that the children of married gay parents do not fare as well as the children of married straight parents. A few points are nevertheless worthy of mention.
DOMA deprives children with married gay parents of tangible protections and stigmatizes their families by branding them unequal. See Br. of Amici Curiae Scholars of the Constitutional Rights of Children. Thus, DOMA itself harms children.
Moreover, when it passed DOMA, Congress had before it no evidence on the suitability of gay or straight couples as parents, and it made no factual findings that gay couples are inferior parents. To the contrary, the overwhelming scientific consensus, based on decades of peer-reviewed scientific research, shows that children raised by gay parents are just as well adjusted as those raised by straight parents. J.A.327-34. It is also well established that men and women both have the capacity to be good parents, and that having one parent of each gender does not improve a child's development. J.A.324-26; see also Br. of Amici Curiae the American Psychological
Weber, 406 U.S. at 175. Denying protections to married gay parents with children in order to encourage either straight couples to marry before having children, or gay couples not to have children, is "illogical" and "unjust." Id.

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Association et al.12 BLAG does not dispute this scientific consensus, although its amici argue that one recent study has now created a scientific debate about the outcomes for children raised by gay and lesbian couples. That study, however, does nothing to disturb the longstanding consensus that children raised by committed gay couples are as well adjusted as children raised by committed straight couples. 13
12 In multiple cases where evidence about parenting by same-sex couples was put to trial, the lower courts have agreed. See, e.g., Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 1000 (N.D. Cal. 2010), affd sub nom. Perry v. Brown, 671 F.3d 1052 (9th Cir.), cert. granted sub nom. Hollingsworth v. Perry, 133 S. Ct. 786 (2012) (Mem.); In reAdoption of Doe, 2008 WL 5006172, at *20 (Fla. Cir. Ct. Nov. 25, 2008), affd sub nom. In re Adoption of X.X.G. & N.R.G., 45 So. 3d 79 (Fla. Dist. Ct. App. 2010); Howard v. Child Welfare Agency Review Bd., No. CV 1999-9881, 2004 WL 3154530, at *5-6, 8 (Ark. Cir. Ct. Dec. 29, 2004), aff'd sub nom. Dep't of Human Servs. v. Howard, 238 S.W.3d 1 (Ark. 2006).
13 That study, Mark Regnerus, How Different are the Adult Children of Parents Who Have Same Sex Relationships?, 41 Social Sci. Res. 752-70 (2012), did not compare children raised in stable gay households with children raised in stable straight households. Br. of Amicus Curiae the American Sociological Association. The author himself recognized that "[c]hild outcomes in stable, 'planned' [gay] families and those that are the product of previous heterosexual unions [like most of those in his study] are quite likely distinctive, as previous studies' conclusions would suggest." Id. at 765. BLAG cites one other report for the proposition that biological parents are better for their children than other parents. See Kristin Anderson Moore et a!., Marriage from a Child's Perspective: How Does Family Structure Affect Children and What Can We Do About It?, Child

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2. DOMA Is Not Rationally Related To Any Legitimate Federal Interest In Uniformity Or Conserving Federal Resources
Another set of purported justifications for DOMA focuses on the administration of federal programs that turn on marital status. BLAG argues that DOMA serves a federal interest in the uniform treatment of federal benefits and avoids the "fiscal impact of expanding the class of federal beneficiaries." BLAG Br. 21; see also id. at 33. On closer inspection, neither of these justifications can sustain DOMA. First, DOMA does not actually accomplish them. Second, as justifications, "uniformity'' and "cost savings" are similar in that, while beneficial in the abstract, they both fail to explain the classification chosen - that is, why Congress was justified in promoting either "cost savings" or "uniformity'' by sacrificing the interests of married gay couples. See Armour, 132 8. Ct. at 208485 (Roberts, C.J., dissenting).
1. DOMA was not, of course, necessary to achieve uniformity. Absent DOMA, all married couples (whether gay or straight) would uniformly
Trends Research Brief 1-2 (2002), http://tinyurl.com/ ChildTrendsFamily. The authors of that report have stated "no conclusions can be drawn from this research about the well· being of children raised by same-sex parents or adoptive parents." Id. at 1.

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have been eligible for the benefits and responsible for the obligations imposed by federal law. Ms. Windsor would have been treated the same as any other widow in New York.
What DOMA does is to impose a disuniformity between married straight couples and married gay couples, while imposing a uniformity between married gay couples and unmarried gay couples. To argue, as BLAG does, that this ensures "that similarly-situated couples will have the same federal benefits regardless of the state in which they happen to reside," BLAG Br. 33, is really to say that married gay couples aren't genuinely married at all but instead are "similarly situated" to unmarried people. That ignores reality. There are over 130,000 legally married same-sex couples in the United States, each subject to all of the legal obligations that come with marriage within each state. See Census Releases Data on Same-Sex Couples, The Williams Institute (Sept. 27, 2011), available at http://tinyurl.com/ WilliamsCensus. DOMA's choice can therefore only be explained by an illegitimate desire to treat married gay couples differently simply because they are gay. Moreno, 413 U.S. at 534.
BLAG's subsidiary arguments fare no better. BLAG suggests that the differential treatment of married gay couples for all federal programs and statutes is justified because Congress has "a distinct interest in making a federal employee indifferent between working [or perhaps more accurately, living] in Maryland or Virginia." BLAG Br. 43. But state

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law, not DOMA, will be the driving force in that situation. A federal employee who is asked to move from a state that recognizes his or her marriage to one that does not faces a significant disincentive in any event. Piling a federal disability on top of a state-law inequality advances no independent or legitimate federal interest. In any case, it is implausible to think that DOMA - which sweeps across all federal statutes and programs, not just those related to federal employees -was enacted for that purpose or serves that goal.
Furthermore, the problem that BLAG posits Congress was trying to fix - married couples losing or gaining federal benefits simply by moving to a different state - existed before gay couples began to marry and continues to exist today for married straight couples whose status is recognized in one state, but not in another. This problem confronts, among others, couples in common law marriages and couples who are first cousins. See Social Security Ruling ("SSR") 63-20, 1963 WL 3518 (1963) (first cousins); see also 42 U.S.C. § 416(h)(1)(A)(i) (marriage for Social Security benefits based on law of state where couple resides at time of application); 29 C.F.R. § 825.122 (2009) (same for FMLA); 38 C.F.R. § 3.1(j) (marriage for veterans benefits based on place of residence at time of marriage or when benefits accrued). See Br. of Amici Curiae Former Cabinet Secretaries et al.
The most striking example of disuniformity in modern times involves divorces. After some states

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adopted no-fault divorce regimes, the federal government repeatedly confronted the question of whether a remarriage following an out-of-state divorce was valid. See, e.g., Estate of Goldwater, 539 F.2d 878 (2d Cir. 1976) (marital estate tax); Estate of Spalding, 537 F.2d 666 (2d Cir. 1976) (same). When confronted with differing state and foreign rules for divorce, Congress declined to adopt a uniform federal definition of divorce because, as the Ninth Circuit observed, "[t]o provide a federal tax law of marriage would create greater confusion," given that marriage "is peculiarly a creature of state law." Lee v. Comm'r, 550 F.2d 1201 (9th Cir. 1977). Instead, the Government adopted choice-of-law rules that advanced the goals of particular federal programs; those rules typically deferred to the law of the state of domicile. And it did so despite profound disagreement among the states over whether and when couples should be allowed to terminate their marriages, litigation as to the validity of those divorces, and social disapproval of some of the more lenient standards for divorce. See, e.g., Estate of Spalding, 537 F.2d at 667 (describing Nevada in 1968 as a "then-regarded renegade state whose procedural practices, re divorce, caused lifted eyebrows in more Victorian jurisdictions"). Even if Congress ·can regulate "one step at a time," Williamson v. Lee Optical Co., 348 U.S. 483, 489 (1955), any claim that Congress was really pursuing uniformity, rather than discriminating against married gay couples, is undermined by its acceptance of far greater variation in marriage recognition, particularly with respect to

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divorce. Cleburne, 473 U.S. at 448; Reed, 404 U.S. at 76-77.
BLAG's suggestion that a uniform federal rule for treatment of married gay couples was needed to "eas[e] administrative burdens," BLAG Br. 34, is also impossible to reconcile with the straightforward state law about who is married and who is not. The federal government can determine whether gay couples are married the same way it determines whether straight couples are married: by relying on state law. This is a far simpler question than many others dealt with by federal agencies every dayY While BLAG asserts that Ms. Windsor's claim for an estate tax refund "illustrates" the "complicated" issue that DOMA was intended to solve, BLAG Br. 34, only BLAG appears to harbor any confusion about whether Ms. Windsor and Dr. Spyer were married.15 As the courts below observed, DOMA creates complexity; it does not combat it. See, e.g., U.S. Supp. Br. at 26a ("The
14 In addition to variations in marriage eligibility from state to state, the federal government routinely incorporates state-law definitions of other family law terms such as "child" into federal law, cf. Astrue v. Caputo, 132 S. Ct. 2021, 2031 (2012), and deals with far greater complexities in administering benefits programs that use a functional definition of family or ''household" (many of which actually recognize same-sex couples for purposes of determining income eligibility). See Br. of Amici Curiae Former Cabinet Secretaries et al.
15 As discussed in footoote 1 of the jurisdiction brief filed on behalf of Ms. Windsor, New York unquestionably recognized Ms. Windsor's marriage. Windsor Jurisdiction Br. at 2 n.l.

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uniformity rationale is further undermined by inefficiencies that [DOMA] creates."); Pet. App. at 19a-20a. And in any event, this Court has repeatedly declared that "the Constitution recognizes higher values than speed and efficiency." Stanley v. Illinois, 405 U.S. 645, 656 (1972); see also Frontiero, 411 U.S. at 690.
2. Nor can DOMA be justified by a congressional desire to avoid the "fiscal impact of expanding the class of federal beneficiaries." BLAG Br. 21. An interest in conserving resources, standing alone, "can hardly justify the classification used in allocating those resources." Plyler, 457 U.S. at 227. Congress cannot "pursue the objective of saving money by discriminating against individuals or groups." Lyngv. Int'l Union, 485 U.S. 360, 373 (1988).
To the contrary, like uniformity, saving money provides a legitimate, independent justification for a classification only where there is some reason to believe that the group being excluded is different in some relevant way from the group receiving the benefit. See Graham, 403 U.S. at 375 ("The saving of welfare costs cannot justify an otherwise invidious classification." (citation omitted)). If BLAG's view were correct, the government could also decide to save money by denying benefits to couples who married on odd days of the month because doing so would save money. But that law would clearly be struck down as irrational. Here too, it is irrational to save money by denying benefits to married gay

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couples that the government confers on married straight couples. It is thus not surprising that numerous lower courts have rejected this justification as failing to explain why Congress sought to save money by discriminating against gay people. See, e.g., In re Levenson, 587 F.3d 925, 933 (9th Cir. 2009); Dragovich, 872 F. Supp. 2d at 957; Golinski, 824 F. Supp. 2d at 994-95; Gill, 699 F. Supp. 2d at 390.
In any event, experience has disproved BLAG's suggestion that DOMA conserves federal resources. BLAG Br. 37-41. When Congress enacted DOMA, it lacked any information about the fiscal consequences of this sweeping change in federal law. See supra p. 9. Nor, as the co-sponsor of the bill in the Senate admitted at the time, did Congress even attempt to arrive at a "reliable estimate." See id. Thus, any attempt to justify DOMA as a cost-saving measure cannot survive constitutional scrutiny. See Heller v. Doe, 509 U.S. 312, 321 (1993); Carolene Prods. Co., 304 U.S. at 153 (a showing that presumed facts do not exist is relevant to the constitutionality of a statute).
More recently, the Congressional Budget Office has concluded that federal recognition of married gay couples would actually result in a net benefit to the federal treasury. See Cong. Budget Office, The Potential Budgetary Impact ofRecognizing Same-Sex Marriages 1 (June 21, 2004), available at http://tinyurl.com/CB02004. BLAG's response is to say that unlike straight couples, gay couples might

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decide whether or not to marry solely on the basis of financial considerations. BLAG Br. 40 n.8. But gay couples like Ms. Windsor and Dr. Spyer marry for the same reasons straight couples do - to express their love and commitment to each other. To suggest otherwise, without a shred of empirical support, insults gay people and rests on impermissible stereotypes that render a classification unconstitutional. See Cleburne, 473 U.S. at 453 n.6.
3. DOMA Fails To Further Any Legitimate Federal Interest In Dual Sovereignty, Tradition, Or Caution
The remaining interests put forward by BLAG today and by Congress in 1996 focus on values related to federalism, tradition, and caution. None of these interests is furthered in a rational way by DOMA.
1. BLAG asserts that federal discrimination against married gay couples is warranted because DOMA preserves dual sovereignty. BLAG Br. 20. According to BLAG, DOMA allows "each sovereign in our federal system" to decide the "important issue" of civil marriage for gay people "for itself." BLAG Br. 32. Similarly, the House Report identifies one of DOMA's aims as protecting "democratic selfgovernance." See House Report at 16.
Section 3 of DOMA, however, is not rationally related to achieving this goal. As the district court

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found in this case, the purported interest in protecting "democratic self-governance," id., applies only to Section 2.16 Pet. App. at 3a n.1; see also Massachusetts, 682 F.3d at 14. In fact, by discriminating between gay and straight married couples, DOMA actually undermines the sovereignty of states, like Ms. Windsor's home state of New York, that allow gay couples to marry. See Br. of Amici Curiae States of New York, Massachusetts et al.
As for the alleged interest in "preserv[ing] each sovereign's ability to define marriage for itself," BLAG Br. 31, DOMA is not a statute that gives each sovereign the ability to define marriage. Rather, it is a statute through which the federal government adopted a particular definition of marriage that nullifies the marriages of gay couples for all purposes under federal law. The relevant constitutional question is whether that choice- to treat for federal purposes the marriages of straight people one way and the marriages of gay people another way - is consistent with the equal protection principles of our Constitution. In other words, no one disputes that Congress has sovereign power to decide eligibility with respect to federal programs and benefits. The question here is whether it exercised that power
16 Section 2 of DOMA provides that ''No State . . . shall be required to give effect to any public act, record, or judicial proceeding of any other State . . . respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State." 28 U.S.C. § 1738C.

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constitutionally. For the reasons already described, it did not.
2. Nor can DOMA be justified by a desire for "caution," BLAG Br. 41-42 - or perhaps more accurately, and in the words of the House Report, a desire to "nurtur[e] the institution of traditional, heterosexual marriage," or to "promot[e] heterosexuality." House Report at 12-15. In context, this appeal not to change or to "go slow" simply "reflect[s] some instinctive mechanism to guard against people who appear to be different in some respects from ourselves." Garrett, 531 U.S. at 374 (Kennedy, J., concurring). Unless that difference is both real and rationally related to the decision to exclude the group at issue, it cannot justifY the government's decision. Romer, 517 U.S. at 633. And it is hard to conceive of how Congress could "promote" heterosexuality in a way that does not denigrate gay people based on their status as gay. See Lawrence, 539 U.S. at 575; Christian Legal Soc'y, 130 S. Ct. at 2990. It is also worth remembering that the very same "go slow" argument was made against extending rights to African-Americans, among others. See, e.g., Watson v. City of Memphis, 373 U.S. 526, 535-36 (1963).
As discussed above, DOMA was anything but a cautious legislative step. Instead, in a rush to respond to a perceived problem of gay couples marrying in Hawaii, DOMA abandoned the uniform historic federal practice of deferring to the states in terms of marital status. J.A.311-12. Indeed, DOMA

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today operates not to defend marriage for straight people, but only to undermine the institution of marriage as it now exists where gay couples are allowed to marry: Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont, Washington, and the District of Columbia. Pet. App. 16a-17a.
3. BLAG similarly argues that because gay couples were not allowed to marry before 1996, it was rational for Congress "to preserve ... past legislative judgments." BLAG Br. 38.
The "past legislative judgments," however, had always been to respect the determination of each state and to treat people as married if they were married under state law. By adopting a different rule, DOMA dramatically departed from the consistent legislative judgment of previous Congresses solely to single out gay people as different from straight people. As BLAG has acknowledged, when gay couples could not legally marry under state law, the federal government had no reason to grant federal marital protections to such couples. See BLAG Br. 30. BLAG argues that it is this status quo that Congress sought to maintain when it enacted DOMA. However, a bare desire to "preserve" legislative judgments made when there were no married gay couples cannot explain why, when such couples can legally marry, they should be treated as unmarried by the federal government for all federal purposes. This interest, like BLAG's "sovereignty'' and "caution" arguments, simply restates what

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DOMA does. It provides no independent justification for treating married gay couples as legal strangers.
C. THE FACTS OF THIS CASE REINFORCE THE CONCLUSION THATDOMAIS UNCONSTITUTIONAL
1. In her complaint, Ms. Windsor challenged the way DOMA operated to deny her spouse's estate the marital deduction generally available to married couples. J.A.173. If Congress had passed a discrete statute simply excluding married couples who are gay from the benefits of the estate tax's spousal exemption, it would be impossible to discern a rational connection between that exclusion and any of the interests that have been advanced on behalf of DOMA.
For example, even if the federal government has a legitimate interest in encouraging responsible procreation by straight couples, it would be irrational to think that denying gay couples the benefits of the estate tax deduction would do anything to further that interest. Hardly any straight couples especially straight couples of an age where their relationship still runs a risk of "produc[ing] unplanned and unintended offspring," BLAG Br. 11
would make decisions about "responsible procreation" based on their eligibility for a deduction from an estate tax likely to be levied only decades

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later and only on a small fraction of the population.17 And none are likely to be influenced in their immediate procreative or childbearing choices by how that tax is or is not levied on gay people.
2. Nor could the exclusion of gay couples from the marital estate-tax deduction be justified as rationally related to any other legitimate government interest. To be sure, excluding married gay couples from the marital deduction would raise revenue. But so would excluding couples where one of the spouses was born on February 29. Both would be unacceptably arbitrary. Any rationale for excluding the estates of married gay decedents from the deduction requires explaining not just that uniformity is a legitimate federal interest, but why treating the estates of married gay decedents differently than the estates of married straight decedents rationally promotes an interest in uniformity. Even under rationality review, such a distinction would fail.
3. The fact that DOMA is not a discrete or tailored statute, but instead sweeps across over 1,100 federal statutes that confer benefits or impose responsibilities on married people, strengthens the
17 Male decedents with estates sufficiently large to trigger the estate tax live to an average age of 77.2 years, while female decedents live to 82.0 years. See Brian G. Raub, Federal Estate Tax Retoms Filed for 2004 Decedents, Stat. of Income Bull., Spring 2008, at 115, 117, available at http://tinyurl.com/estatestats.

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conclusion that it fails rationality review. The indiscriminate nature of DOMA's definition reinforces the inference that DOMA reflects impermissible animus, or "insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different in some respects from ourselves." Garrett, 531 U.S. at 374 (Kennedy, J., concurring).
This same lack of explanation for DOMA's discrimination between married gay and straight couples pervades every context that DOMA touches. DOMA is not a collection of discrete laws; it is "a status-based enactment divorced from any factual context from which [one] could discern a relationship to legitimate state interests." Romer, 517 U.S. at 635. This sweeping classification of married gay couples thus "confounds th[e] normal process of judicial review," id. at 633, and makes it clear that DOMA was not intended "to further a proper legislative end" but rather to make married gay couples "unequal to everyone else," id. at 635.
Finally, while BLAG repeatedly argues that the Court should not "constitutionalize" the issue because "the democratic process is at work," BLAG Br. 22; see also id. at 20, 54, 58, the question presented here is a narrow one: is there a sufficient federal interest in treating married gay couples differently from all other married couples for all purposes under federal law? There is not. By suggesting that the Court cannot or should not

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answer this question, BLAG fails to recognize that the protections of the Fifth Amendment are abiding. DOMA is impossible to reconcile with the promise of impartial governance that the Constitution's guarantee of equal protection extends to all of our Nation's citizens.

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CONCLUSION

For the foregoing reasons, the judgment of the court of appeals should be affirmed.

Respectfully submitted,

Pamela S. Karlan

Roberta A. Kaplan

J e:ffi:ey L. Fisher

Counsel ofRecord

STANFORD LAW SCHOOL Andrew J. Ehrlich

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New York, NY 10004

February 26, 2013

 
 No. 12-307 Vide 12-63, 12785 Title:
Docketed: Lower Ct:
Case Nos.: Decision Date:
Questions Presented

United States, Petitioner
v.
Edith Schlain Windsor, in Her Capacity as Executor of the Estate of Thea Clara Spyer, et al.
September 11, 2012 United States Court of Appeals for the Second Circuit (12-2335, 12-2435) October 18, 2012 Rule 11

~~~Date~~~ ~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~
Sep 11 2012 Petition for a writ of certiorari before judgment filed. (Response due October 11, 2012)
Sep 18 2012 Order extending time to file response to petition to and including October 19, 2012, for all respondents.
Oct 10 2012 Brief of respondent Edith Schlain Windsor, in Her Capacity as Executor of the Estate of Thea Clara Spyer in opposition filed.
Oct 18 2012 Judgment entered by the United States Court of Appeals for the Second Circuit.
Oct 19 2012 Brief of respondent Bipartisan Legal Advisory Group of the United States House of Representatives in opposition filed.
Oct 26 2012 Supplemental brief of petitioner United States filed.
Oct 29 2012 DISTRIBUTED for Conference of November 20, 2012.
Oct 29 2012 Supplemental brief of respondent Edith Schlain Windsor, in Her Capacity as Executor of the Estate of Thea Clara Spyer filed. (Distributed)
Nov 1 2012 Supplemental brief of respondent Bipartisan Legal Advisory Group of the United States House of Representatives filed. VIDED. (Distributed)
Nov 8 2012 Reply of petitioner United States filed. (Distributed)
Nov 13 2012 DISTRIBUTED for Conference of November 30, 2012.
Dec 3 2012 DISTRIBUTED for Conference of December 7, 2012.
Dec 7 2012 Petition for a writ of certiorari GRANTED. In addition to the question presented by the petition, the parties are directed to brief and argue the following

questions: Whether the Executive Branch�s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case; and whether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing in this case.

Dec 11 2012 Vicki C. Jackson, Esq., of Cambridge, Massachusetts, is invited to brief and argue this case, as amicus curiae, in support of the positions that the Executive Branch's agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case, and that the Bipartisan Legal Advisory Group of the United States House of Representatives lacks Article III standing in this case.

Dec 13 2012 Briefing proposal of the parties and Court-appointed amicus curiae filed.

Dec 14 2012 Upon consideration of the letter of December 13, 2012, from the Solicitor General on behalf of the litigants and the amicus curiae invited to brief and argue this case, the following briefing schedule is adopted. On the merits, the brief of the Bipartisan Legal Advisory Group of the United States House of Representatives, not to exceed 15,000 words, is to be filed on or before Tuesday, January 22, 2013. The brief of the Solicitor General, not to exceed 15,000 words, is to be filed on or before Friday, February 22, 2013. The brief of Edith Windsor, not to exceed 15,000 words, is to be filed on or before Tuesday, February 26, 2013. The reply brief of the Bipartisan Legal Advisory Group of the United States House of Representatives, not to exceed 6,000 words, is to be filed in accordance with Rule 25.3 of the Rules of this Court. On the jurisdictional questions, the brief of the Court-appointed amicus curiae, not to exceed 10,000 words, is to be filed on or before January 22, 2013. The briefs of the Solicitor General, the Bipartisan Legal Advisory Group of the United States House of Representatives, and Edith Windsor, not to exceed 10,000 words each, are to be filed on or before Wednesday, February 20, 2013. Reply briefs of the litigants and the Court-appointed amicus curiae, not to exceed 4,000 words, are to be filed in accordance with Rule 25.3 of the Rules of this Court.

Dec 14 2012 Other amici curiae briefs shall be filed within the time allowed under Rule 37.3(a) of the Rules of this Court, except that amici curiae briefs on the merits in support of the positions of the Solicitor General and/or Edith Windsor shall be filed within 7 days after the brief of the Solicitor General on the merits is filed. The litigants, Court-appointed amicus curiae, and other amici curiae shall indicate on the cover of each brief filed which issue or issues are addressed in that particular brief in addition to the information required by Rule 37.3 of the Rules of this Court.

Jan 2 2013 Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for respondent Bipartisan Legal Advisory Group of the U.S. House of Representatives.

Jan 7 2013 SET FOR ARGUMENT ON Wednesday, March 27, 2013

Jan 8 2013 The time to file the brief, on the jurisdictional questions, of the Court-appointed amicus curiae is extended to and including January 24, 2013.

Jan 8 2013

The time to file the briefs, on the jurisdictional questions, of the Solicitor General, the Bipartisan Legal Advisory Group of the United States House of Representatives, and Edith Windsor, is extended to and including February 22, 2013.

Jan 10 2013 Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for the petitioner.
Jan 22 2013 Joint appendix filed. (Distributed) (Statement of costs received.) Jan 22 2013 Brief of respondent Bipartisan Legal Advisory Group of the United States
House of Representatives (Merits) filed. (Distributed) Jan 23 2013 CIRCULATED. Jan 24 2013 Brief amicus curiae of Court-appointed amicus curiae (Jurisdiction) filed.
(Distributed) Jan 24 2013 Brief amicus curiae of Family Research Council (Merits) filed. (Distributed) Jan 24 2013 Brief amicus curiae of Dr. Paul McHugh (Merits) filed. VIDED. (Distributed) Jan 24 2013 Brief amici curiae of Law Professors (Merits) filed. (Distributed) Jan 24 2013 Brief amicus curiae of National Organization for Marriage (Merits) filed.
(Distributed) Jan 25 2013 Brief amicus curiae of Westboro Baptist Church in support of neither party
(Merits) filed. (Distributed) Jan 25 2013 Brief amici curiae of Liberty, Life and Law Foundation, et al. (Merits) filed.
VIDED. (Distributed) Jan 28 2013 Brief amicus curiae of International jurists and academics (Merits) filed. VIDED.
(Distributed) Jan 28 2013 Brief amicus curiae of Manhattan Declaration (Merits) filed. (Distributed) Jan 28 2013 Brief amicus curiae of The Becket Fund for Religious Liberty (Merits) filed.
VIDED. (Distributed) Jan 29 2013 Brief amicus curiae of Coalition for the Protection of Marriage (Merits) filed.
VIDED. (Distributed) Jan 29 2013 Brief amicus curiae of Eagle Forum Education & Legal Defense Fund, Inc.
(Merits) filed. (Distributed) Jan 29 2013 Brief amici curiae of Citizens United's National Committee for Family, Faith and
Prayer, et al. (Merits) filed. (Distributed) Jan 29 2013 Brief amicus curiae of United States Conference of Catholic Bishops (Merits)
filed. (Distributed) Jan 29 2013 Brief amici curiae of Chaplain Alliance for Religious Liberty, et al. (Merits) filed.
(Distributed) Jan 29 2013 Brief amici curiae of Robert P. George, et al. (Merits) filed. VIDED. (Distributed) Jan 29 2013 Brief amicus curiae of Parents and Friends of Ex-Gays & Gays (Merits) filed.
VIDED. (Distributed) Jan 29 2013 Brief amici curiae of Indiana and 16 other states (Merits) filed. (Distributed) Jan 29 2013 Brief amicus curiae of Liberty Counsel (Merits) filed. (Distributed) Jan 29 2013 Brief amici curiae of Catholic Answers, et al. (Merits) filed. VIDED. (Distributed) Jan 29 2013 Brief amicus curiae of Matthew B. O'Brien (Merits) filed. VIDED. (Distributed) Jan 29 2013 Brief amicus curiae of Dovid Z. Schwartz (Merits) filed. (Distributed) Jan 29 2013 Brief amici curiae of United States Senators Orrin G. Hatch, et al. (Merits) filed.
(Distributed) Jan 29 2013 Brief amicus curiae of Concerned Women for America (Merits) filed.
(Distributed)

Jan 29 2013 Brief amicus curiae of Helen M. Alvare filed. (Merits) VIDED. (Distributed)
Jan 29 2013 Brief amicus curiae of Foundation for Moral Law filed. (Distributed)
Jan 29 2013 Brief amici curiae of Social Science Professors (Merits) filed. VIDED. (Distributed)
Jan 29 2013 Brief amicus curiae of David Boyle filed. ( Merits) (Distributed)
Jan 29 2013 Brief amici curiae of National Association of Evangelicals (Merits) filed. (Distributed)
Jan 29 2013 Brief amici curiae of The Beverly LaHaye Institute, et al. (Merits) filed. (Distributed)
Jan 29 2013 Brief amicus curiae of American Civil Rights Union (Merits) filed. VIDED. (Distributed)
Feb 6 2013 Record from U.S.C.A. for 2nd Circuit is electronic.
Feb 13 2013 Record from U.S.D.C. for Southern District of New York is electronic.
Feb 13 2013 Brief amicus curiae of Citizens for Responsibility and Ethics in Washington (Merits) filed. (Distributed)
Feb 22 2013 Brief of respondent Edith Schlain Windsor (Jurisdiction) filed. (Distributed)
Feb 22 2013 Brief of petitioner United States (Jurisdiction) filed. (Distributed)
Feb 22 2013 Brief of petitioner United States (Merits) filed. (Distributed)
Feb 22 2013 Brief of respondent Bipartisan Legal Advisory Group of the United States House of Representatives (Jurisdiction) filed. (Distributed)
Feb 26 2013 Brief of respondent Edith Schlain Windsor, in Her Capacity as Executor of the Estate of Thea Clara Spyer (Merits) filed. (Distributed)
Feb 26 2013 Motion for enlargement of time and divided argument filed by the parties and Court-appointed amici curiae.
Feb 26 2013 Brief amicus curiae of GLMA: Health Professionals Advancing LBGT Equality (Gay and Lesbian Medical Association) concerning the immutability of sexual orientation (Merits) filed. (Distributed)
Feb 27 2013 Brief amici curiae of 278 Employers and Organizations Representing Employers (Merits) filed. (Distributed)
Feb 27 2013 Brief amici curiae of Utah Pride Center, et al. (Merits) filed. VIDED. (Distributed)
Feb 27 2013 Brief amici curiae of American Humanist Association and American Atheists, Inc., et al. filed. (Distributed)
Feb 27 2013 Brief amici curiae of Professors Nan D. Hunter, et al. filed. (Distributed)
Feb 27 2013 Motion for leave to file amici brief filed by former Attorneys General Edwin Meese III and John Ashcroft in support of neither party (Jurisdiction) out of time.
Feb 28 2013 Brief amici curiae of Leadership Conference on Civil and Human Rights, et al. (Merits) filed. (Distributed)
Feb 28 2013 Brief amici curiae of Political Science Professors filed. (Distributed).
Feb 28 2013 Brief amici curiae of Constitutional Law Scholars Bruce Ackerman, et al. (Merits) filed. VIDED. (Distributed)
Feb 28 2013 Brief amicus curiae of American Sociological Association (Merits) filed. VIDED. (Distributed)

Feb 28 2013 Brief amici curiae of Bishops of the Episcopal Church in the States of California, et al. filed. (Distributed)
Feb 28 2013 Brief amici curiae of Family Equality Council, et al. (Merits) filed. VIDED. (Distributed)
Feb 28 2013 Brief amici curiae of Organization of American Historians, et al. filed. (Distributed)
Feb 28 2013 Brief amici curiae of Empire State Pride Agenda, et al. filed. (Distributed)
Feb 28 2013 Brief amicus curiae of American Jewish Committee (Merits) filed. VIDED. (Distributed)
Mar 1 2013 Brief amicus curiae of Former Federal Intelligence Officer (Merits) filed. (Distributed)
Mar 1 2013 Brief amicus curiae of NAACP Legal Defense & Educational Fund, Inc. (Merits) filed. (Distributed)
Mar 1 2013 Brief amicus curiae of OutServe-SLDN Inc. filed. (Distributed)
Mar 1 2013 Brief amicus curiae of Center for Constitutional Jurisprudence (Jurisdiction) filed. (Distributed)
Mar 1 2013 Brief amici curiae of Cato Institute and Constitutional Accountability Center (Merits) filed. (Distributed)
Mar 1 2013 Brief amici curiae of National Women's Law Center, et al. (Merits) filed. (Distributed)
Mar 1 2013 Brief amici curiae of Family and Child Welfare Law Professors (Merits) filed. (Distributed)
Mar 1 2013 Brief amici curiae of Anti-Defamation League, et al. (Merits) filed. (Distributed)
Mar 1 2013 Brief amici curiae of Family Law Professors, et al. (Merits) filed. (Distributed)
Mar 1 2013 Brief amici curiae of Gay & Lesbian Advocates & Defenders, et al. (Merits) filed. (Distributed)
Mar 1 2013 Brief amicus curiae of Gary J. Gates (Merits) filed. (Distributed)
Mar 1 2013 Brief amici curiae of Dr. Donna E. Shalala, et al. (Merits) filed. (Distributed)
Mar 1 2013 Brief amici curiae of Former Senior Justice Department Officials, et al. (Jurisdiction) filed. (Distributed)
Mar 1 2013 Brief amici curiae of Former Senators Bill Bradley, et al. filed. (Distributed)
Mar 1 2013 Brief amicus curiae of Partnership for New York City (Merits) filed. (Distributed)
Mar 1 2013 Brief amici curiae of Citizens United's National Committee for Family, Faith and Prayer, et al. (Jurisdiction) filed. (Distributed)
Mar 1 2013 Brief amicus curiae of Survivors of Sexual Orientation Change Therapies filed. (Distributed)
Mar 1 2013 Brief amici curiae of 172 Members of the U.S. House of Representatives and 40 U.S. Senators filed. (Distributed)
Mar 1 2013 Brief amici curiae of Los Angeles County Bar Association, et al. filed. (Distributed)
Mar 1 2013 Brief amicus curiae of Honorable John K. Olson (Merits) filed. (Distributed)
Mar 1 2013 Brief amici curiae of New York, et al. (Merits) filed. (Distributed)
Mar 1 2013 Brief amici curiae of Services and Advocacy for Gay, Lesbian, Bisexual and Transgender Elders, et al. (Merits) filed. (Distributed)

Mar 1 2013 Brief amici curiae of Scholars of the Constitutional Rights of Children (Merits) filed. (Distributed)
Mar 1 2013 Brief amici curiae of Historians, American Historical Association, et al. filed. (Distributed)

Mar 1 2013 Brief amicus curiae of Institute for Justice (Merits) filed. (Distributed)

Mar 1 2013 Brief amicus curiae of Honorable John K. Olson (Jurisdiction) filed. (Distributed)

Mar 1 2013 Brief amici curiae of American Federation of Labor and Congress of Industrial Organizations, et al. (Merits) filed. (Distributed)

Mar 1 2013 Brief amici curiae of Constitutional Law Scholars (Jurisdiction) filed. (Distributed)

Mar 1 2013 Brief amici curiae of Federalism Scholars (Merits) filed. (Distributed)

Mar 1 2013 Brief amici curiae of Hon. Lawrence J. Korb, et al. (Merits) filed. (Distributed)

Mar 1 2013 Brief amicus curiae of American Bar Association (Merits) filed. (Distributed)

Mar 1 2013 Brief amicus curiae of Center for Fair Administration of Taxes (Merits) filed. (Distributed)

Mar 1 2013 Brief amici curiae of American Psychological Association, et al. (Merits) filed. (Distributed)

Mar 1 2013 Brief of Former Federal Election Commission Officials (Merits) filed. (Distributed)

Mar 4 2013

Motion for enlargement of time and divided argument GRANTED and the time is to be divided as follows: on the jurisdiction issues, the Court-appointed amicus curiae is allotted 20 minutes, the Solicitor General is allotted 15 minutes, and respondent Bipartisan Legal Advisory Group of the U.S. House of Representatives is allotted 15 minutes. On the merits, respondent Bipartisan Legal Advisory Group of the U.S. House of Representatives is allotted 30 minutes, the Solicitor General is allotted 15 minutes, and respondent Windsor is allotted 15 minutes.

Mar 15 2013 Motion for leave to file amici brief out of time filed by former Attorneys General Edwin Meese III and John Ashcroft GRANTED.

Mar 19 2013 Reply of respondent Bipartisan Legal Advisory Group of the United States House of Representatives (Jurisdiction) filed. (Distributed)

Mar 19 2013 Reply of respondent Bipartisan Legal Advisory Group of the United States House of Representatives (Merits) filed. (Distributed)

Mar 20 2013 Reply of Court-appointed amicus curiae (Jurisdiction) filed. (Distributed)

Mar 20 2013 Reply of respondent Edith Schlain Windsor, in Her Capacity as Executor of the Estate of Thea Clara Spyer (Jurisdiction) filed. (Distributed)

Mar 20 2013 Reply of petitioner United States (Jurisdiction) filed. (Distributed)

Mar 27 2013 Argued. (Juridsiction) - For Court-appointed amicus curiae: Vicki C. Jackson, Cambridge, Mass. For petitioner in support of affirmance: Sri Srinivaasan, Deputy Solicitor General, Department of Justice, Washington, D. C. For respondent Bipartisan Legal Advisory Group of the United States House of Representataives: Paul D. Clement, Washington, D. C. (Merits) - For respondent Bipartisan Legal Advisory Group of the United States House of Representatives: Paul D. Clement, Washington, D. C. For petitioner in support

of affirmance: Donald B. Verrilli, Jr., Solicitor General, Department of Justice, Washington, D. C. For respondent Windsor: Roberta A. Kaplan, New York, N. Y.
Jun 26 2013 Adjudged to be AFFIRMED. Kennedy, J., delivered the opinion of the Court, in which Ginsburg, Breyer, Sotomayor, and Kagan, JJ., joined. Roberts, C. J., filed a dissenting opinion. Scalia, J., filed a dissenting opinion, in which Thomas, J., joined, and in which Roberts, C. J., joined as to Part I. Alito, J. filed a dissenting opinion, in which Thomas, J., joined as to Parts II and III.

~~Name~~~~~~~~~~~~~~~~~~~~~ ~~~~~~~Address~~~~~~~~~~~~~~~~~~ ~~Phone~~~

Attorneys for Petitioner:

Donald B. Verrilli Jr.

Solicitor General

(202) 5142217

Counsel of Record

United States Department of Justice

950 Pennsylvania Avenue, N.W.

Washington, DC 20530-0001

SupremeCtBriefs@USDOJ.gov

Party name: United States

Attorneys for Respondents:

Paul D. Clement

Bancroft PLLC

(202) 2340090

Counsel of Record

1919 M Street, N.W., Suite 470

Washington, DC 20036

pclement@bancroftpllc.com

Party name: Bipartisan Legal Advisory Group of the United States House of Representatives

Roberta A. Kaplan

Paul, Weiss, Rifkind, Wharton & Garrison LLP

(212) 3733000

Counsel of Record

1285 Avenue of the Americas

New York, NY 10019-6064

rkaplan@paulweiss.com

Party name: Edith Schlain Windsor, in Her Capacity as Executor of the Estate of Thea Clara Spyer

Other:

Helen M. Alvare

George Mason University

(703) 9939845

School of Law

3301 Fairfax Dr.

Arlington, VA 22201

halvare@gmu.edu

Party name: Helen M. Alvare

Peter T. Barbur

Cravath, Swaine & Moore LLP

825 Eighth Avenue

New York, NY 10019 pbarbur@cravath.com Party name: Empire State Pride Agenda, et al.

(212) 4741000

Laurel G. Bellows

American Bar Association

321 North Clark Street Chicago, IL 60054 abapresident@americanbar.org Party name: American Bar Association (Merits)

(312) 9885000

Nicole G. Berner

1800 Massachusetts Ave. NW

(202) 7307383

Washington, DC 20036

nicole.berner@seiu.org

Party name: American Federation of Labor and Congress of Industrial Organizations, et al. (Merits)

Carmine D. Boccuzzi Jr.

Cleary, Gottlieb, Steen & Hamilton

One Liberty Plaza New York, NY 10006 cboccuzzi@cgsh.com Party name: American Sociological Association (Merits)

(212) 2252000

Elise C. Boddie

NAACP Legal Defense & Educational Fund, Inc.

99 Hudson Street, 16th Floor

New York, NY 10013

eboddie@naacpldf

Party name: NAACP Legal Defense & Educational Fund, Inc. (Merits)

(212) 9652200

David C. Boyle Party name: David Boyle

P.O. Box 15143
Long Beach, CA 90815 dbo@boyleslaw.org

(734)-9046132

Gerard V. Bradley

3156 Eck Hall of Law

(574)-631-

Notre Dame, IN 46556 gerard.v.bradley.16@nd.edu
Party name: Dr. Paul McHugh (Merits)

Anita Susan Brenner

301 East Colorado Boulevard

Suite 614 Pasadena, CA 91101 info@torresbrenner.com Party name: Los Angeles County Bar Association, et al.

J. Robert Brown Jr.

University of Denver

Sturm College of Law Denver, CO 80208 jbrown@law.du.edu Party name: Scholars of the Constitutional Rights of Children (Merits)

Dean Robert Broyles

National Center for Law & Policy

539 West Grand Avenue Escondido, CA 92025 dbroyles@nclplaw.org Party name: Parents and Friends of Ex-Gays & Gays (Merits)

G. Eric Brunstad Jr.

Dechert LLP

90 State House Square Hartford, CT 06103 eric.brunstad@dechert.com Party name: Honorable John K. Olson (Merits)

Paul C. Burke

36 South State Street, Suite 1400

Salt Lake City, UT 84111 pburke@rqn.com Party name: Utah Pride Center, et al.

Holly L. Carmichael

2635 Camino de Rio South, Suite 109 San Diego, CA 92108

8385
(616)-7923175
(303)-8716254
(760)-7474529
(860) 5243999
(801) 5321500
(408)-8381212

holly.1.carmichael@gmail.com Party name: Concerned Women for America

David C. Codell

The Williams Institute

UCLA School of Law Box 951476 Los Angeles, CA 90095-1476 david@codell.com Party name: National Women's Law Center, et al.

Catherine R. Connors

Pierce Atwood LLP

Merrill's Wharf 254 Commerce Street Portland, ME 04101 cconnors@pierceatwood.com Party name: Historians, American Historical Association, et al.

Walter Dellinger

O'Melveny & Myers LLP

1625 Eye Street, N.W. Washington, DC 20006 wdellinger@omm.com Party name: Family Law Professors, et al. (Merits)

Deborah Dewart

620 E. Sabiston Drive

Swansboro, NC 28584-9674 debcpalaw@earthlink.net Party name: Liberty, Life and Law Foundation, et al. (Merits)

William C. Duncan

Marriage Law Foundation

1868 N 800 E Lehi, UT 84043 duncanw@marriagelawfoundation.org Party name: National Organization for Marriage (Merits)

W. Cole Durham Jr.

J. Reuben Clark Law School 452 JRCB

(310) 2674382
(207) 7911389
(202) 3835319
(910)-3264554
(801)-3674570
(801) 4226842

Provo, UT 84602 durhamc@lawgate.byu.edu Party name: international jurists and academics (merits)

John C. Eastman

Center for Constitutional Jurisprudence

c/o Chapman University School of Law One University Drive Orange, CA 92886 jeastman@chapman.edu Party name: Center for Constitutional Jurisprudence (Jurisdiction)

John A. Eidsmoe

Foundation for Moral Law

One Dexter Avenue Montgomery, AL 36104 eidsmoeja@juno.com Party name: Foundation for Moral Law

Roy T. Englert Jr.

Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP

1801 K Street, N.W., Suite 411

Washington, DC 20006

renglert@robbinsrussell.com

Party name: Federalism Scholars (Merits)

Peter J. Ferrara

2011 Freedom Lane

Falls Church, VA 22043 peterferrara@msn.com Party name: American Civil Rights Union (Merits)

Thomas M. Fisher

Solicitor General

Office of the Attorney General IGC South, Fifth Floor 302 W. Washington Street Indianapolis, IN 46204 Tom.Fisher@atg.in.gov Party name: Indiana and 16 other states (Merits)

(714) 6282587
(334) 2621245
(202) 7754500
(703) 5828466
(317) 2326255

Steven W. Fitschen

The National Legal Foundation

2224 Virginia Beach Blvd. Suite 204 Virginia Beach, VA 23454
nlf@nlf.net Party name: The Beverly LaHaye Institute, et al.

(757)-4636133

Jonathan S. Franklin

Fulbright & Jaworski L.L.P.

801 Pennsylvania Avenue, N.W. Washington, DC 20004-2623 jfranklin@fulbright.com Party name: Leadership Conference on Civil and Human Rights, et al. (Merits)

(202) 6620466

Robert P. George

Robinson & McElwee

500 Virginia Street East Suite 600 Charleston, WV 25326 rgeorge@princeton.edu Party name: Robert P. George, et al. (Merits)

(609) 2583270

Douglas Hallward-Driemeier

Ropes & Gray LLP

(202) 5084600

One Metro Center

700 12th Street, NW, Suite 900

Washington, DC 20005

Douglas.Hallward-Driemeier@ropesgray.com

Party name: Anti-Defamation League, et al.

Elizabeth L. Hileman

Hileman & Associates, P.C.

7979 Old Georgetown Rd., Suite 600 Bethesda, MD 20814 ehileman@hilemanlaw.com Party name: American Humanist Association and American Atheists, Inc., et al.

(301) 6521448

Nan D. Hunter

Georgetown University Law Center 600 New Jersey Avenue, NW

(202) 6629399

Washington, DC 20001 ndh5@law.georgetown.edu Party name: Professors Nan D. Hunter, et al.

Vicki C. Jackson

1545 Massachusetts Ave.

Cambridge, MA 02138 vjackson@law.harvard.edu Party name: Court-appointed amicus curiae

Lawrence J. Joseph

1250 Connecticut Ave., NW

Suite 200 Washington, DC 20036 ljoseph@larryjoseph.com Party name: Eagle Forum Education & Legal Defense Fund, Inc. (Merits)

Katherine Keating

560 Mission Street, 25th Floor

San Francisco, CA 94105 katherine.keating@bryancave.com Party name: Family Equality Council, et al.

Von G. Keetch

Kirton & McConkie

60 East South Temple Salt Lake City, UT 84111 vkeetch@kmclaw.com Party name: National Association of Evangelicals (Merits)

Douglas Laycock

University of Virginia School of Law

580 Massie Road Charlottesville, VA 22903 dlaycock@virginia.edu Party name: American Jewish Committee (Merits)

Robert Bradley Lewis

248 Richmond St

Bogalusa, LA 70427 rbl@bradlewislaw.com Party name: Chaplain Alliance for Religious Liberty, et al. (Merits)

(617) 4960555
(202) 3559452
(415)-2682000
(801) 3283600
(434) 2438546
(985) 7359003

Charles S. Limandri

PO Box 9120

Rancho Santa Fe, CA 92067 cslimandri@limandri.com Party name: Catholic Answers, et al. (Merits)

Marjorie P. Lindblom Party name: Gary J. Gates (Merits)

Kirkland & Ellis LLP
601 Lexington Avenue New York, NY 10022 marjorie.lindblom@kirkland.com

Paul Benjamin Linton

Special Counsel

Thomas More Society 931 Keystone Avenue Northbrook, IL 60062 PBLCONLAW@AOL.COM Party name: Family Research Council

Robert A. Long Jr.

Covington & Burling LLP

1201 Pennsylvania Avenue, N.W. Washington, DC 20004 rlong@cov.com Party name: Political Science Professors

Christopher D. Man Party name: OutServe-SLDN Inc.

Chadbourne & Parke LLP
1200 New Hampshire Ave., N.W. Washington, DC 20036 cman@chadbourne.com

John W. Mauck

Mauck & Baker
Suite 600 One North LaSalle Street Chicago, IL 60602 jmauck@mauckbaker.com

(858) 7599948
(212) 4464800
(847) 2913848
(202) 6625612
(202) 9745600
(312) 7261243

Party name: Manhattan Declaration (Merits)

Lori Alvino McGill

Latham & Watkins LLP

555 11th Street, NW Suite 1000

Washington, DC 20004 lori.alvino.mcgill@lw.com Party name: Constitutional Law Scholars Bruce Ackerman, et al.

(202)-6372319

Robert J. McNamara

901 N Glebe Road, Suite 900

Arlington, VA 22203 rmcnamara@ij.org Party name: Institute for Justice (Merits)

(703)-6829320

Alan B. Morrison

George Washington University Law School

2000 H Street NW Washington, DC 20052 abmorrison@law.gwu.edu Party name: Citizens for Responsibility and Ethics in Washington (Merits)

(202) 9947120

Sharon L. Nelles

125 Broad Street

New York, NY 10004 nelless@sullcrom.com Party name: Family and Child Welfare Law Professors (Merits)

(212)-5584000

Miriam R. Nemetz

Mayer Brown LLP

(202) 2633000

1999 K Street NW

Washington, DC 20006

mnemetz@mayerbrown.com

Party name: 172 Members of the U.S. House of Representatives and 40 U.S. Senators

Nicholas M. O'Donnell

One Post Office Square

(617)-3382814

Boston, MA 02109

nodonnell@sandw.com

Party name: GLMA: Health Professionals Advancing LBGT Equality (Gay and Lesbian Medical Association) concerning the immutability of sexual orientation (Merits)

Abram J. Pafford

Pafford Lawrence & Childress PLLC

1776 I Street NW, Suite 900 Washington, DC 20006 apafford@fflaw.com
Party name: Social Science Professors (Merits)

Margie J. Phelps

3734 SW 12th Street

Topeka, KS 66604 margie.phelps@cox.net Party name: Westboro Baptist Church in support of neither party (Merits)

Carter G. Phillips

Sidley Austin LLP

1501 K Street, N.W. Washington, DC 20005 cphillips@sidley.com Party name: Hon. Lawrence J. Korb, et al.

Anthony R. Picarello Jr.

3211 Fourth Street, N.E.

Washington, DC 20017 apicarello@usccb.org Party name: United States Conference of Catholic Bishops (Merits)

Andrew J. Pincus

Mayer Brown LLP

1999 K Street, NW Washington, DC 20006-1101 apincus@mayerbrown.com Party name: Constitutional Law Scholars (Jurisdiction)

Trevor Potter

Caplin & Drysdale, Chartered

1 Thomas Circle, N.W., Suite 1100 Washington, DC 20036 tpotter@capdale.com Party name: Former Federal Election Commission Officials (Merits)

(202) 7564886
(785) 4084598
(202) 7368000
(202) 5413300
(202) 2633000
(202) 8625092

Eric C. Rassbach

Beket Fund for Religious Liberty

3000 K Street, NW, Suite 220 Washington, DC 20007 erassbach@becketfund.org Party name: The Becket Fund for Religious Liberty (Merits)

Christopher S. Rhee

555 12th Street, N.W.

Washington, DC 20004 christopher.rhee@aporter.com Party name: Dr. Donna E. Shalala, et al.

Sanford Jay Rosen

Rosen Bien & Galvan LLP

315 Montgomery Street 10th Floor San Francisco, CA 94104-1823 SRosen@rbgg.com Party name: Survivors of Sexual Orientation Change Therapies

Kevin K. Russell

Goldstein & Russell, P.C.

5225 Wisconsin Ave., NW, Suite 404 Washington, DC 20015 kr@goldsteinrussell.com Party name: Former Senators Bill Bradley, et al.

Dovid Zechariah Schwartz Party name: Dovid Z. Schwartz

147-40 72nd Avenue
Flushing, NY 11367 dzsesq@gmail.com

James F. Segroves

Proskauer Rose LLP

1001 Pennsylvania Ave., NW Washington, DC 20004 jsegroves@proskauer.com Party name: Former Federal Intelligence Officer (Merits)

(202) 3497214
(202)-9425524
(415) 4336830
(202) 3620636
(917)-6806632
(202) 4166800

Jay Alan Sekulow

American Center for Law & Justice

(202) 5468890

201 Maryland Ave., N.E.

Washington, DC 20002 sekulow@aclj.org Party name: Former Attorneys General Edwin Meese III and John Ashcroft in support of neither party (Jurisdiction) out of time

William F. Sheehan

Goodwin I Procter LLP

901 New York Avenue, NW Washington, DC 20001 wsheehan@goodwinprocter.com Party name: American Psychological Association, et al.

(202) 3464000

Paul M. Smith

Jenner & Block LLP

1099 New York Avenue, N.W., Suite 900 Washington, DC 20001 psmith@jenner.com Party name: Gay & Lesbian Advocates & Defenders, et al.

(202) 6396000

Sri Srinivasan

Acting Solicitor General

(202) 5142217

United States Department of Justice

950 Pennsylvania Avenue, N.W.

Washington, DC 20530-0001

SupremeCtBriefs@USDOJ.gov

Party name: United States v. Edith Schlain Windsor, in Her Capacity as Executor of the Estate of Thea Clara Spyer, et al.

Mathew D. Staver

Liberty Counsel

Party name: Liberty Counsel (Merits)

P.O. Box 540774 Orlando, FL 327854 court@lc.org

(800) 6711776

Michael L. Stern

8529 Century Oak Court
Fairfax Station, VA 20515 stern8529@verizon.net

(703) 1867581

Party name: United States Senators Orrin Hatch, et al.

Catherine E. Stetson

Hogan Lovells US LLP

555 Thirteenth Street, N.W. Washington, DC 20004 cate.stetson@hoganlovells.com Party name: Organization of American Historians, et al.

(202) 6375491

Monte Neil Stewart

Belnap Stewart Taylor & Morris, PLLC

12500 W. Explorer Drive Suite 100 Boise, ID 83713 stewart@belnaplaw.com Party name: Coalition for the Protection of Marriage (Merits)

(208) 3453333

A. Lavar Taylor

Director

Center for Fair Administration of Taxes 6 Hutton Centre Drive, Suite 880 Santa Ana, CA 92707 ltaylor@taylorlaw.com Party name: Fair Administration of Taxes (Merits)

(714) 5460445

Herbert W. Titus

William J. Olson, PC

(703) 3565070

370 Maple Avenue West, Suite 4

Vienna, VA 22180 - 5615

wjo@mindspring.com

Party name: Citizens United's National Committee for Family, Faith and Prayer, et al. (Merits)

Jeffrey S. Trachtman

Kramer Levin Naftalis & Frankel, LLP

1177 Avenue of the Americas New York, NY 10036 jtrachtman@kramerlevin.com Party name: Bishops of the Episcopal Church in the States of California, et al.

(212) 7159100

Joseph F. Tringali

Simpson Thacher & Bartlett LLP

(212) 4552000

425 Lexington Avenue New York, NY 10017 jtringali@stblaw.com
Party name: Services and Advocacy for Gay, Lesbian, Bisexual and Transgender Elders, et al. (Merits)

Barbara D. Underwood

Solicitor General Office of the Attorney General

120 Broadway, 25th Floor New York, NY 10271 barbara.underwood@ag.ny.gov Party name: New York, et al. (Merits)

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Kristen Kellie Waggoner

Ellis, Li & McKinstry PLLC

2025 1st Avenue, PH-A Seattle, WA 98121-3125 kwaggoner@elmlaw.com Party name: Matthew B. O'Brien (Merits)

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Lynn Dennis Wardle

J.Reuben Clark Law School

Party name: Law Professors (Merits)

Room 518 Provo, UT 84602 wardlel@law.byu.edu

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Sabin Willett

Bingham McCutcheon LLP

One Federal Street Boston, MA 02110 sabin.willett@bingham.com Party name: 278 Employers and Organizations Representing Employers (Merits)

(617) 9518000

Paul R.Q. Wolfson

Wilmer Cutler Pickering Hale and Dorr LLP

1875 Pennsylvania Avenue, N.W. Washington, DC 20006 paul.wolfson@wilmerhale.com Party name: Former Senior Justice Department Officials, et al. (Jurisdiction)

(202) 6636390

Marc Wolinsky

Wachtell Lipton Rosen & Katz

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Elizabeth B. Wydra

Constitutional Accountability Center

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(212) 4031000
(202) 2966889

 
 Supreme Court of the United States
No. 12-307
United States, Petitioner
v. Edith Schlain Windsor, in Her Capacity as Executor of the Estate of Thea Clara
Spyer, et al.
ON PETITION FOR A WRIT OF CERTIORARI before judgment. ON CONSIDERATION of the petition for a writ of certiorari before judgment herein, IT IS ORDERED by this Court that the said petition is granted. In addition to the question presented by the petition, the parties are directed to brief and argue the following questions: Whether the Executive Branch's agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case; and whether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing in this case.
December 7, 2012
A true copy WILLIAM K. SUTER Test:
Clerk of the Supreme Court oi the United States By ____________________________
Deputy

 
 U.S. v. Windsor, 133 S.Ct. 2675 (2013)

133 S.Ct. 2675
Editor’s Note: Additions are indicated by Text and deletions by Text.
Supreme Court of the United States
UNITED STATES, Petitioner v.
Edith Schlain WINDSOR, in her capacity as executor of the Estate of Thea Clara Spyer, et al.
No. 12–307. | Argued March 27, 2013. | Decided June 26, 2013.
Synopsis Background: Taxpayer who, as surviving spouse of same-sex couple, was denied benefit of spousal deduction due to definition of “marriage” and “spouse” provided by Defense of Marriage Act (DOMA) brought action for refund of federal estate taxes and for declaration that pertinent provision of DOMA violated Fifth Amendment. After Department of Justice (DOJ) declined to continue its defense of statute, congressional group was allowed to intervene to defend statute’s constitutionality. The United States District Court for the Southern District of New York, Barbara S. Jones, J., 833 F.Supp.2d 394, granted summary judgment for taxpayer. The United States, as nominal defendant, and congressional group appealed. The United States Court of Appeals for the Second Circuit, Dennis Jacobs, Chief Judge, 699 F.3d 169, affirmed. Certiorari was granted.
Holdings: The Supreme Court, Justice Kennedy, held that:
[1] DOJ’s decision not to defend DOMA did not deprive district court of jurisdiction;
[2] United States retained a stake sufficient to support Article III jurisdiction on appeal and in proceedings before the Supreme Court;
[3] congressional group’s adversarial presentation of the issues satisfied prudential standing concerns; and
[4] DOMA’s definition of marriage was unconstitutional as a deprivation of the liberty of the person protected by the

Fifth Amendment.

Affirmed.
Chief Justice Roberts filed a dissenting opinion.
Justice Scalia filed a dissenting opinion, in which Justice Thomas joined, and in which Chief Justice Roberts joined in part.
Justice Alito filed a dissenting opinion, in which Justice Thomas joined in part.

West Codenotes

Held Unconstitutional 1 U.S.C.A. § 7
*2679 Syllabus*

*

The syllabus constitutes no part of the opinion of the

Court but has been prepared by the Reporter of

Decisions for the convenience of the reader. See United

States v. Detroit Timber & Lumber Co., 200 U.S. 321,

337, 26 S.Ct. 282, 50 L.Ed. 499.

The State of New York recognizes the marriage of New York residents Edith Windsor and Thea Spyer, who wed in Ontario, Canada, in 2007. When Spyer died in 2009, she left her entire estate to Windsor. Windsor sought to claim the federal estate tax exemption for surviving spouses, but was barred from doing so by § 3 of the federal Defense of Marriage Act (DOMA), which amended the Dictionary Act—a law providing rules of construction for over 1,000 federal laws and the whole realm of federal regulations—to define “marriage” and “spouse” as excluding same-sex partners. Windsor paid $363,053 in estate taxes and sought a refund, which the Internal Revenue Service denied. Windsor brought this refund suit, contending that DOMA violates the principles of equal protection incorporated in the Fifth Amendment. While the suit was pending, the Attorney General notified the Speaker of the House of Representatives that the Department of Justice would no longer defend § 3’s constitutionality. In response, the Bipartisan Legal Advisory Group (BLAG) of the House of Representatives voted to intervene in the litigation to defend § 3’s constitutionality. The District Court permitted the intervention. On the merits, the court ruled against the United States, finding § 3 unconstitutional and ordering
1

U.S. v. Windsor, 133 S.Ct. 2675 (2013)
the Treasury to refund Windsor’s tax with interest. The Second Circuit affirmed. The United States has not complied with the judgment.
Held :
1. This Court has jurisdiction to consider the merits of the case. This case clearly presented a concrete disagreement between opposing parties that was suitable for judicial resolution in the District Court, but the Executive’s decision not to defend § 3’s constitutionality in court while continuing to deny refunds and assess deficiencies introduces a complication. Given the Government’s concession, amicus contends, once the District Court ordered the refund, the case should have ended and the appeal been dismissed. But this argument elides the distinction between Article III’s *2680 jurisdictional requirements and the prudential limits on its exercise, which are “essentially matters of judicial self-governance.” Warth v. Seldin, 422 U.S. 490, 500, 95 S.Ct. 2197, 45 L.Ed.2d 343. Here, the United States retains a stake sufficient to support Article III jurisdiction on appeal and in this Court. The refund it was ordered to pay Windsor is “a real and immediate economic injury,” Hein v. Freedom From Religion Foundation, Inc., 551 U.S. 587, 599, 127 S.Ct. 2553, 168 L.Ed.2d 424, even if the Executive disagrees with § 3 of DOMA. Windsor’s ongoing claim for funds that the United States refuses to pay thus establishes a controversy sufficient for Article III jurisdiction. Cf. INS v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317.
Prudential considerations, however, demand that there be “concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.” Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663. Unlike Article III requirements—which must be satisfied by the parties before judicial consideration is appropriate—prudential factors that counsel against hearing this case are subject to “countervailing considerations [that] may outweigh the concerns underlying the usual reluctance to exert judicial power.” Warth, supra, at 500–501, 95 S.Ct. 2197. One such consideration is the extent to which adversarial presentation of the issues is ensured by the participation of amici curiae prepared to defend with vigor the legislative act’s constitutionality. See Chadha, supra, at 940, 103 S.Ct. 2764 Here, BLAG’s substantial adversarial argument for § 3’s constitutionality satisfies prudential concerns that otherwise might counsel against hearing an appeal from a decision with which the principal parties

agree. This conclusion does not mean that it is appropriate for the Executive as a routine exercise to challenge statutes in court instead of making the case to Congress for amendment or repeal. But this case is not routine, and BLAG’s capable defense ensures that the prudential issues do not cloud the merits question, which is of immediate importance to the Federal Government and to hundreds of thousands of persons. Pp. 2684 – 2689.
2. DOMA is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment. Pp. 2684 – 2696.
(a) By history and tradition the definition and regulation of marriage has been treated as being within the authority and realm of the separate States. Congress has enacted discrete statutes to regulate the meaning of marriage in order to further federal policy, but DOMA, with a directive applicable to over 1,000 federal statutes and the whole realm of federal regulations, has a far greater reach. Its operation is also directed to a class of persons that the laws of New York, and of 11 other States, have sought to protect. Assessing the validity of that intervention requires discussing the historical and traditional extent of state power and authority over marriage.
Subject to certain constitutional guarantees, see, e.g., Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010, “regulation of domestic relations” is “an area that has long been regarded as a virtually exclusive province of the States,” Sosna v. Iowa, 419 U.S. 393, 404, 95 S.Ct. 553, 42 L.Ed.2d 532. The significance of state responsibilities for the definition and regulation of marriage dates to the Nation’s beginning; for “when the Constitution was adopted the common understanding was that the domestic relations of husband and wife and parent and child were matters reserved to the States,” *2681 Ohio ex rel. Popovici v. Agler, 280 U.S. 379, 383–384, 50 S.Ct. 154, 74 L.Ed. 489. Marriage laws may vary from State to State, but they are consistent within each State.
DOMA rejects this long-established precept. The State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import. But the Federal Government uses the state-defined class for the opposite purpose—to impose restrictions and disabilities. The question is whether the resulting injury and indignity is a deprivation of an essential part of the liberty protected by the Fifth Amendment, since what New York treats as alike the federal law deems unlike by a law designed to injure the same class the State seeks to protect. New York’s actions
2

U.S. v. Windsor, 133 S.Ct. 2675 (2013)
were a proper exercise of its sovereign authority. They reflect both the community’s considered perspective on the historical roots of the institution of marriage and its evolving understanding of the meaning of equality. Pp. 2684 – 2692.
(b) By seeking to injure the very class New York seeks to protect, DOMA violates basic due process and equal protection principles applicable to the Federal Government. The Constitution’s guarantee of equality “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group. Department of Agriculture v. Moreno, 413 U.S. 528, 534–535, 93 S.Ct. 2821, 37 L.Ed.2d 782. DOMA cannot survive under these principles. Its unusual deviation from the tradition of recognizing and accepting state definitions of marriage operates to deprive same-sex couples of the benefits and responsibilities that come with federal recognition of their marriages. This is strong evidence of a law having the purpose and effect of disapproval of a class recognized and protected by state law. DOMA’s avowed purpose and practical effect are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.
DOMA’s history of enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute. It was its essence. BLAG’s arguments are just as candid about the congressional purpose. DOMA’s operation in practice confirms this purpose. It frustrates New York’s objective of eliminating inequality by writing inequality into the entire United States Code.
DOMA’s principal effect is to identify and make unequal a subset of state-sanctioned marriages. It contrives to deprive some couples married under the laws of their State, but not others, of both rights and responsibilities, creating two contradictory marriage regimes within the same State. It also forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect. Pp. 20–26.
699 F.3d 169, affirmed.
KENNEDY, J., delivered the opinion of the Court, in

which GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. ROBERTS, C.J., filed a dissenting opinion. SCALIA, J., filed a dissenting opinion, in which THOMAS, J., joined, and in which ROBERTS, C.J., joined as to Part I. ALITO, J., filed a dissenting opinion, in which THOMAS, J., joined as to Parts II and III.
Attorneys and Law Firms
*2682 Vicki C. Jackson, appointed by this Court, as amicus curiae, by Sri Srinivasan, for Petitioner.
Paul D. Clement, for Respondent Bipartisan Legal Advisory Group of the United States House of Representatives.
Donald B. Verrilli, Jr., Solicitor General, Washington, D.C., for United States on the Jurisdictional Questions.
Roberta A. Kaplan, for Respondent Edith Schlain Windsor.
Pamela S. Karlan, Jeffrey L. Fisher, Stanford, CA, James D. Esseks, Rose A. Saxe, Joshua A. Block, Leslie Cooper, Steven R. Shapiro, New York, NY, Roberta A. Kaplan, Walter Rieman, Jaren Janghorbani, Colin S. Kelly, Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, NY, Arthur Eisenberg, Mariko Hirose, New York, NY, for Respondent Edith Schlain Windsor.
Kerry W. Kircher, General Counsel, William Pittard, Deputy General Counsel, Christine Davenport, Senior Assistant Counsel, Todd B. Tatelman, Mary Beth Walker, Eleni M. Roumel, Assistant Counsels Office of General Counsel, Washington, D.C., Paul D. Clement, H. Christopher Bartolomucci, Nicholas J. Nelson, Michael H. McGinley, Bancroft PLLC, Washington, D.C., for Respondent The Bipartisan Legal Advisory Group of the United States House of Representatives.
Donald B. Verrilli, Jr., Solicitor General, Stuart F. Delery, Principal Deputy Assistant Attorney General, Sri Srinivasan, Deputy Solicitor General, Eric J. Feigin, Assistant to the Solicitor General, Michael Jay Singer, August E. Flentje, Helen L. Gilbert, Adam C. Jed, Washington, D.C., for the United States on the Jurisdictional Questions.
Opinion
Justice KENNEDY delivered the opinion of the Court.
3

U.S. v. Windsor, 133 S.Ct. 2675 (2013)
Two women then resident in New York were married in a lawful ceremony in Ontario, Canada, in 2007. Edith Windsor and Thea Spyer returned to their home in New York City. When Spyer died in 2009, she left her entire estate to Windsor. Windsor sought to claim the estate tax exemption for surviving spouses. She was barred from doing so, however, by a federal law, the Defense of Marriage Act, which excludes a same-sex partner from the definition of “spouse” as that term is used in federal statutes. Windsor paid the taxes but filed suit to challenge the constitutionality of this provision. The United States District Court and the Court of Appeals ruled that this portion of the statute is unconstitutional and ordered the United States to pay Windsor a refund. This Court granted certiorari and now affirms the judgment in Windsor’s favor.
I
In 1996, as some States were beginning to consider the concept of same-sex marriage, see, e.g., Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44 (1993), and before any State had acted to permit it, Congress enacted the Defense of Marriage Act (DOMA), 110 Stat. 2419. DOMA contains two operative sections: Section 2, which has not been challenged here, allows States to refuse to recognize same-sex *2683 marriages performed under the laws of other States. See 28 U.S.C. § 1738C.
Section 3 is at issue here. It amends the Dictionary Act in Title 1, § 7, of the United States Code to provide a federal definition of “marriage” and “spouse.” Section 3 of DOMA provides as follows:
“In 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.
The definitional provision does not by its terms forbid States from enacting laws permitting same-sex marriages or civil unions or providing state benefits to residents in that status. The enactment’s comprehensive definition of marriage for purposes of all federal statutes and other regulations or directives covered by its terms, however, does control over 1,000 federal laws in which marital or

spousal status is addressed as a matter of federal law. See GAO, D. Shah, Defense of Marriage Act: Update to Prior Report 1 (GAO–04–353R, 2004).
Edith Windsor and Thea Spyer met in New York City in 1963 and began a long-term relationship. Windsor and Spyer registered as domestic partners when New York City gave that right to same-sex couples in 1993. Concerned about Spyer’s health, the couple made the 2007 trip to Canada for their marriage, but they continued to reside in New York City. The State of New York deems their Ontario marriage to be a valid one. See 699 F.3d 169, 177–178 (C.A.2 2012).
Spyer died in February 2009, and left her entire estate to Windsor. Because DOMA denies federal recognition to same-sex spouses, Windsor did not qualify for the marital exemption from the federal estate tax, which excludes from taxation “any interest in property which passes or has passed from the decedent to his surviving spouse.” 26 U.S.C. § 2056(a). Windsor paid $363,053 in estate taxes and sought a refund. The Internal Revenue Service denied the refund, concluding that, under DOMA, Windsor was not a “surviving spouse.” Windsor commenced this refund suit in the United States District Court for the Southern District of New York. She contended that DOMA violates the guarantee of equal protection, as applied to the Federal Government through the Fifth Amendment.
While the tax refund suit was pending, the Attorney General of the United States notified the Speaker of the House of Representatives, pursuant to 28 U.S.C. § 530D, that the Department of Justice would no longer defend the constitutionality of DOMA’s § 3. Noting that “the Department has previously defended DOMA against ... challenges involving legally married same-sex couples,” App. 184, the Attorney General informed Congress that “the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a heightened standard of scrutiny.” Id., at 191. The Department of Justice has submitted many § 530D letters over the years refusing to defend laws it deems unconstitutional, when, for instance, a federal court has rejected the Government’s defense of a statute and has issued a judgment against it. This case is unusual, however, because the § 530D letter was not preceded by an adverse judgment. The letter instead reflected the Executive’s own conclusion, relying on a definition still being debated and considered in the courts, that heightened equal protection *2684 scrutiny should apply
4

U.S. v. Windsor, 133 S.Ct. 2675 (2013)
to laws that classify on the basis of sexual orientation.
Although “the President ... instructed the Department not to defend the statute in Windsor,” he also decided “that Section 3 will continue to be enforced by the Executive Branch” and that the United States had an “interest in providing Congress a full and fair opportunity to participate in the litigation of those cases.” Id., at 191–193. The stated rationale for this dual-track procedure (determination of unconstitutionality coupled with ongoing enforcement) was to “recogniz[e] the judiciary as the final arbiter of the constitutional claims raised.” Id., at 192.
In response to the notice from the Attorney General, the Bipartisan Legal Advisory Group (BLAG) of the House of Representatives voted to intervene in the litigation to defend the constitutionality of § 3 of DOMA. The Department of Justice did not oppose limited intervention by BLAG. The District Court denied BLAG’s motion to enter the suit as of right, on the rationale that the United States already was represented by the Department of Justice. The District Court, however, did grant intervention by BLAG as an interested party. See Fed. Rule Civ. Proc. 24(a)(2).
On the merits of the tax refund suit, the District Court ruled against the United States. It held that § 3 of DOMA is unconstitutional and ordered the Treasury to refund the tax with interest. Both the Justice Department and BLAG filed notices of appeal, and the Solicitor General filed a petition for certiorari before judgment. Before this Court acted on the petition, the Court of Appeals for the Second Circuit affirmed the District Court’s judgment. It applied heightened scrutiny to classifications based on sexual orientation, as both the Department and Windsor had urged. The United States has not complied with the judgment. Windsor has not received her refund, and the Executive Branch continues to enforce § 3 of DOMA.
In granting certiorari on the question of the constitutionality of § 3 of DOMA, the Court requested argument on two additional questions: whether the United States’ agreement with Windsor’s legal position precludes further review and whether BLAG has standing to appeal the case. All parties agree that the Court has jurisdiction to decide this case; and, with the case in that framework, the Court appointed Professor Vicki Jackson as amicus curiae to argue the position that the Court lacks jurisdiction to hear the dispute. 568 U.S. ––––, 133 S.Ct. 786, 184 L.Ed.2d 527 (2012). She has ably discharged her duties.

In an unrelated case, the United States Court of Appeals for the First Circuit has also held § 3 of DOMA to be unconstitutional. A petition for certiorari has been filed in that case. Pet. for Cert. in Bipartisan Legal Advisory Group v. Gill, O.T. 2012, No. 12–13.
II
It is appropriate to begin by addressing whether either the Government or BLAG, or both of them, were entitled to appeal to the Court of Appeals and later to seek certiorari and appear as parties here.
[1] There is no dispute that when this case was in the District Court it presented a concrete disagreement between opposing parties, a dispute suitable for judicial resolution. “[A] taxpayer has standing to challenge the collection of a specific tax assessment as unconstitutional; being forced to pay such a tax causes a real and immediate economic injury to the individual taxpayer.” Hein v. Freedom From Religion Foundation, Inc., 551 U.S. 587, 599, 127 S.Ct. 2553, 168 L.Ed.2d 424 (2007) (plurality *2685 opinion) (emphasis deleted). Windsor suffered a redressable injury when she was required to pay estate taxes from which, in her view, she was exempt but for the alleged invalidity of § 3 of DOMA.
[2] The decision of the Executive not to defend the constitutionality of § 3 in court while continuing to deny refunds and to assess deficiencies does introduce a complication. Even though the Executive’s current position was announced before the District Court entered its judgment, the Government’s agreement with Windsor’s position would not have deprived the District Court of jurisdiction to entertain and resolve the refund suit; for her injury (failure to obtain a refund allegedly required by law) was concrete, persisting, and unredressed. The Government’s position—agreeing with Windsor’s legal contention but refusing to give it effect—meant that there was a justiciable controversy between the parties, despite what the claimant would find to be an inconsistency in that stance. Windsor, the Government, BLAG, and the amicus appear to agree upon that point. The disagreement is over the standing of the parties, or aspiring parties, to take an appeal in the Court of Appeals and to appear as parties in further proceedings in this Court.
The amicus’ position is that, given the Government’s
5

U.S. v. Windsor, 133 S.Ct. 2675 (2013)
concession that § 3 is unconstitutional, once the District Court ordered the refund the case should have ended; and the amicus argues the Court of Appeals should have dismissed the appeal. The amicus submits that once the President agreed with Windsor’s legal position and the District Court issued its judgment, the parties were no longer adverse. From this standpoint the United States was a prevailing party below, just as Windsor was. Accordingly, the amicus reasons, it is inappropriate for this Court to grant certiorari and proceed to rule on the merits; for the United States seeks no redress from the judgment entered against it.
[3] This position, however, elides the distinction between two principles: the jurisdictional requirements of Article III and the prudential limits on its exercise. See Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). The latter are “essentially matters of judicial self-governance.” Id., at 500, 95 S.Ct. 2197. The Court has kept these two strands separate: “Article III standing, which enforces the Constitution’s case-or-controversy requirement, see Lujan v. Defenders of Wildlife, 504 U.S. 555, 559–562, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); and prudential standing, which embodies ‘judicially self-imposed limits on the exercise of federal jurisdiction,’ Allen [v. Wright,] 468 U.S. [737,] 751, 104 S.Ct. 3315 [82 L.Ed.2d 556 (1984) ].” Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 11–12, 124 S.Ct. 2301, 159 L.Ed.2d 98 (2004).
[4] [5] The requirements of Article III standing are familiar:
“First, the plaintiff must have suffered an ‘injury in fact’—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) ‘actual or imminent, not “conjectural or hypothetical.” ’ Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be ‘fairly ... trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court.’ Third, it must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.’ ” *2686 Lujan, supra, at 560–561, 112 S.Ct. 2130 (footnote and citations omitted).
Rules of prudential standing, by contrast, are more flexible “rule[s] ... of federal appellate practice,” Deposit Guaranty Nat. Bank v. Roper, 445 U.S. 326, 333, 100 S.Ct. 1166, 63 L.Ed.2d 427 (1980), designed to protect the courts from “decid[ing] abstract questions of wide public significance even [when] other governmental institutions may be more competent to address the

questions and even though judicial intervention may be unnecessary to protect individual rights.” Warth, supra, at 500, 95 S.Ct. 2197.
[6] In this case the United States retains a stake sufficient to support Article III jurisdiction on appeal and in proceedings before this Court. The judgment in question orders the United States to pay Windsor the refund she seeks. An order directing the Treasury to pay money is “a real and immediate economic injury,” Hein, 551 U.S., at 599, 127 S.Ct. 2553, indeed as real and immediate as an order directing an individual to pay a tax. That the Executive may welcome this order to pay the refund if it is accompanied by the constitutional ruling it wants does not eliminate the injury to the national Treasury if payment is made, or to the taxpayer if it is not. The judgment orders the United States to pay money that it would not disburse but for the court’s order. The Government of the United States has a valid legal argument that it is injured even if the Executive disagrees with § 3 of DOMA, which results in Windsor’s liability for the tax. Windsor’s ongoing claim for funds that the United States refuses to pay thus establishes a controversy sufficient for Article III jurisdiction. It would be a different case if the Executive had taken the further step of paying Windsor the refund to which she was entitled under the District Court’s ruling.
[7] This Court confronted a comparable case in INS v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983). A statute by its terms allowed one House of Congress to order the Immigration and Naturalization Service (INS) to deport the respondent Chadha. There, as here, the Executive determined that the statute was unconstitutional, and “the INS presented the Executive’s views on the constitutionality of the House action to the Court of Appeals.” Id., at 930, 103 S.Ct. 2764. The INS, however, continued to abide by the statute, and “the INS brief to the Court of Appeals did not alter the agency’s decision to comply with the House action ordering deportation of Chadha.” Ibid. This Court held “that the INS was sufficiently aggrieved by the Court of Appeals decision prohibiting it from taking action it would otherwise take,” ibid., regardless of whether the agency welcomed the judgment. The necessity of a “case or controversy” to satisfy Article III was defined as a requirement that the Court’s “ ‘decision will have real meaning: if we rule for Chadha, he will not be deported; if we uphold [the statute], the INS will execute its order and deport him.’ ” Id., at 939–940, 103 S.Ct. 2764 (quoting Chadha v. INS, 634 F.2d 408, 419 (C.A.9 1980)). This conclusion was not dictum. It was a necessary predicate to
6

U.S. v. Windsor, 133 S.Ct. 2675 (2013)
the Court’s holding that “prior to Congress’ intervention, there was adequate Art. III adverseness.” 462 U.S., at 939, 103 S.Ct. 2764. The holdings of cases are instructive, and the words of Chadha make clear its holding that the refusal of the Executive to provide the relief sought suffices to preserve a justiciable dispute as required by Article III. In short, even where “the Government largely agree[s] with the opposing party on the merits of the controversy,” there is sufficient adverseness and an “adequate basis for jurisdiction in the fact that the Government *2687 intended to enforce the challenged law against that party.” Id., at 940, n. 12, 103 S.Ct. 2764.
[8] [9] It is true that “[a] party who receives all that he has sought generally is not aggrieved by the judgment affording the relief and cannot appeal from it.” Roper, supra, at 333, 100 S.Ct. 1166, see also Camreta v. Greene, 563 U.S. ––––, ––––, 131 S.Ct. 2020, 2030, 179 L.Ed.2d 1118 (2011) ( “As a matter of practice and prudence, we have generally declined to consider cases at the request of a prevailing party, even when the Constitution allowed us to do so”). But this rule “does not have its source in the jurisdictional limitations of Art. III. In an appropriate case, appeal may be permitted ... at the behest of the party who has prevailed on the merits, so long as that party retains a stake in the appeal satisfying the requirements of Art. III.” Roper, supra, at 333–334, 100 S.Ct. 1166.
[10] [11] While these principles suffice to show that this case presents a justiciable controversy under Article III, the prudential problems inherent in the Executive’s unusual position require some further discussion. The Executive’s agreement with Windsor’s legal argument raises the risk that instead of a “ ‘real, earnest and vital controversy,’ ” the Court faces a “friendly, non-adversary, proceeding ... [in which] ‘a party beaten in the legislature [seeks to] transfer to the courts an inquiry as to the constitutionality of the legislative act.’ ” Ashwander v. TVA, 297 U.S. 288, 346, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring) (quoting Chicago & Grand Trunk R. Co. v. Wellman, 143 U.S. 339, 345, 12 S.Ct. 400, 36 L.Ed. 176 (1892)). Even when Article III permits the exercise of federal jurisdiction, prudential considerations demand that the Court insist upon “that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.” Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962).
[12] [13] There are, of course, reasons to hear a case and issue a ruling even when one party is reluctant to prevail

in its position. Unlike Article III requirements—which must be satisfied by the parties before judicial consideration is appropriate—the relevant prudential factors that counsel against hearing this case are subject to “countervailing considerations [that] may outweigh the concerns underlying the usual reluctance to exert judicial power.” Warth, 422 U.S., at 500–501, 95 S.Ct. 2197. One consideration is the extent to which adversarial presentation of the issues is assured by the participation of amici curiae prepared to defend with vigor the constitutionality of the legislative act. With respect to this prudential aspect of standing as well, the Chadha Court encountered a similar situation. It noted that “there may be prudential, as opposed to Art. III, concerns about sanctioning the adjudication of [this case] in the absence of any participant supporting the validity of [the statute]. The Court of Appeals properly dispelled any such concerns by inviting and accepting briefs from both Houses of Congress.” 462 U.S., at 940, 103 S.Ct. 2764. Chadha was not an anomaly in this respect. The Court adopts the practice of entertaining arguments made by an amicus when the Solicitor General confesses error with respect to a judgment below, even if the confession is in effect an admission that an Act of Congress is unconstitutional. See, e.g., Dickerson v. United States, 530 U.S. 428, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000).
In the case now before the Court the attorneys for BLAG present a substantial argument for the constitutionality of § 3 of *2688 DOMA. BLAG’s sharp adversarial presentation of the issues satisfies the prudential concerns that otherwise might counsel against hearing an appeal from a decision with which the principal parties agree. Were this Court to hold that prudential rules require it to dismiss the case, and, in consequence, that the Court of Appeals erred in failing to dismiss it as well, extensive litigation would ensue. The district courts in 94 districts throughout the Nation would be without precedential guidance not only in tax refund suits but also in cases involving the whole of DOMA’s sweep involving over 1,000 federal statutes and a myriad of federal regulations. For instance, the opinion of the Court of Appeals for the First Circuit, addressing the validity of DOMA in a case involving regulations of the Department of Health and Human Services, likely would be vacated with instructions to dismiss, its ruling and guidance also then erased. See Massachusetts v. United States Dept. of Health and Human Servs., 682 F.3d 1 (C.A.1 2012). Rights and privileges of hundreds of thousands of persons would be adversely affected, pending a case in which all prudential concerns about justiciability are absent. That numerical prediction may not be certain, but it is certain
7

U.S. v. Windsor, 133 S.Ct. 2675 (2013)
that the cost in judicial resources and expense of litigation for all persons adversely affected would be immense. True, the very extent of DOMA’s mandate means that at some point a case likely would arise without the prudential concerns raised here; but the costs, uncertainties, and alleged harm and injuries likely would continue for a time measured in years before the issue is resolved. In these unusual and urgent circumstances, the very term “prudential” counsels that it is a proper exercise of the Court’s responsibility to take jurisdiction. For these reasons, the prudential and Article III requirements are met here; and, as a consequence, the Court need not decide whether BLAG would have standing to challenge the District Court’s ruling and its affirmance in the Court of Appeals on BLAG’s own authority.
[14] The Court’s conclusion that this petition may be heard on the merits does not imply that no difficulties would ensue if this were a common practice in ordinary cases. The Executive’s failure to defend the constitutionality of an Act of Congress based on a constitutional theory not yet established in judicial decisions has created a procedural dilemma. On the one hand, as noted, the Government’s agreement with Windsor raises questions about the propriety of entertaining a suit in which it seeks affirmance of an order invalidating a federal law and ordering the United States to pay money. On the other hand, if the Executive’s agreement with a plaintiff that a law is unconstitutional is enough to preclude judicial review, then the Supreme Court’s primary role in determining the constitutionality of a law that has inflicted real injury on a plaintiff who has brought a justiciable legal claim would become only secondary to the President’s. This would undermine the clear dictate of the separation-of-powers principle that “when an Act of Congress is alleged to conflict with the Constitution, ‘[i]t is emphatically the province and duty of the judicial department to say what the law is.’ ” Zivotofsky v. Clinton, 566 U.S. ––––, ––––, 132 S.Ct. 1421, 1427–1428, 182 L.Ed.2d 423 (2012) (quoting Marbury v. Madison, 1 Cranch 137, 177, 2 L.Ed. 60 (1803)). Similarly, with respect to the legislative power, when Congress has passed a statute and a President has signed it, it poses grave challenges to the separation of powers for the Executive at a particular moment to be able to nullify Congress’ enactment solely on its own initiative and without any determination from the Court.
*2689 The Court’s jurisdictional holding, it must be underscored, does not mean the arguments for dismissing this dispute on prudential grounds lack substance. Yet the difficulty the Executive faces should be acknowledged.

When the Executive makes a principled determination that a statute is unconstitutional, it faces a difficult choice. Still, there is no suggestion here that it is appropriate for the Executive as a matter of course to challenge statutes in the judicial forum rather than making the case to Congress for their amendment or repeal. The integrity of the political process would be at risk if difficult constitutional issues were simply referred to the Court as a routine exercise. But this case is not routine. And the capable defense of the law by BLAG ensures that these prudential issues do not cloud the merits question, which is one of immediate importance to the Federal Government and to hundreds of thousands of persons. These circumstances support the Court’s decision to proceed to the merits.
III
When at first Windsor and Spyer longed to marry, neither New York nor any other State granted them that right. After waiting some years, in 2007 they traveled to Ontario to be married there. It seems fair to conclude that, until recent years, many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage. For marriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization. That belief, for many who long have held it, became even more urgent, more cherished when challenged. For others, however, came the beginnings of a new perspective, a new insight. Accordingly some States concluded that same-sex marriage ought to be given recognition and validity in the law for those same-sex couples who wish to define themselves by their commitment to each other. The limitation of lawful marriage to heterosexual couples, which for centuries had been deemed both necessary and fundamental, came to be seen in New York and certain other States as an unjust exclusion.
Slowly at first and then in rapid course, the laws of New York came to acknowledge the urgency of this issue for same-sex couples who wanted to affirm their commitment to one another before their children, their family, their friends, and their community. And so New York recognized same-sex marriages performed elsewhere; and then it later amended its own marriage laws to permit same-sex marriage. New York, in common with, as of this
8

U.S. v. Windsor, 133 S.Ct. 2675 (2013)
writing, 11 other States and the District of Columbia, decided that same-sex couples should have the right to marry and so live with pride in themselves and their union and in a status of equality with all other married persons. After a statewide deliberative process that enabled its citizens to discuss and weigh arguments for and against same-sex marriage, New York acted to enlarge the definition of marriage to correct what its citizens and elected representatives perceived to be an injustice that they had not earlier known or understood. See Marriage Equality Act, 2011 N.Y. Laws 749 (codified at N.Y. Dom. Rel. Law Ann. §§ 10–a, 10–b, 13 (West 2013)).
[15] [16] [17] Against this background of lawful same-sex marriage in some States, the design, purpose, and effect of DOMA should be considered as the beginning point in deciding whether it is valid under the Constitution. By history and tradition the definition and regulation of marriage, as will be discussed in more detail, has *2690 been treated as being within the authority and realm of the separate States. Yet it is further established that Congress, in enacting discrete statutes, can make determinations that bear on marital rights and privileges. Just this Term the Court upheld the authority of the Congress to pre-empt state laws, allowing a former spouse to retain life insurance proceeds under a federal program that gave her priority, because of formal beneficiary designation rules, over the wife by a second marriage who survived the husband. Hillman v. Maretta, 569 U.S. ––––, 133 S.Ct. 1943, 186 L.Ed.2d 43 (2013); see also Ridgway v. Ridgway, 454 U.S. 46, 102 S.Ct. 49, 70 L.Ed.2d 39 (1981); Wissner v. Wissner, 338 U.S. 655, 70 S.Ct. 398, 94 L.Ed. 424 (1950). This is one example of the general principle that when the Federal Government acts in the exercise of its own proper authority, it has a wide choice of the mechanisms and means to adopt. See McCulloch v. Maryland, 4 Wheat. 316, 421, 4 L.Ed. 579 (1819). Congress has the power both to ensure efficiency in the administration of its programs and to choose what larger goals and policies to pursue.
Other precedents involving congressional statutes which affect marriages and family status further illustrate this point. In addressing the interaction of state domestic relations and federal immigration law Congress determined that marriages “entered into for the purpose of procuring an alien’s admission [to the United States] as an immigrant” will not qualify the noncitizen for that status, even if the noncitizen’s marriage is valid and proper for state-law purposes. 8 U.S.C. § 1186a(b)(1) (2006 ed. and Supp. V). And in establishing income-based criteria for Social Security benefits, Congress decided that although

state law would determine in general who qualifies as an applicant’s spouse, common-law marriages also should be recognized, regardless of any particular State’s view on these relationships. 42 U.S.C. § 1382c(d)(2).

Though these discrete examples establish the

constitutionality of limited federal laws that regulate the

meaning of marriage in order to further federal policy,

DOMA has a far greater reach; for it enacts a directive

applicable to over 1,000 federal statutes and the whole

realm of federal regulations. And its operation is directed

to a class of persons that the laws of New York, and of 11

other States, have sought to protect. See Goodridge v.

Department of Public Health, 440 Mass. 309, 798 N.E.2d

941 (2003); An Act Implementing the Guarantee of Equal

Protection Under the Constitution of the State for Same

Sex Couples, 2009 Conn. Pub. Acts no. 09–13; Varnum v.

Brien, 763 N.W.2d 862 (Iowa 2009); Vt. Stat. Ann., Tit.

15, § 8 (2010); N.H.Rev.Stat. Ann. § 457:1–a (West

Supp.2012); Religious Freedom and Civil Marriage

Equality Amendment Act of 2009, 57 D.C. Reg. 27 (Dec.

18, 2009); N.Y. Dom. Rel. Law Ann. § 10–a (West Supp.

2013); Wash. Rev.Code § 26.04.010 (2012); Citizen

Initiative, Same–Sex Marriage, Question 1 (Me. 2012)

(results

online

at

http://

www.maine.gov/sos/cec/elec/2012/tab–ref–2012.html (all

Internet sources as visited June 18, 2013, and available in

Clerk of Court’s case file)); Md. Fam. Law Code Ann. §

2–201 (Lexis 2012); An Act to Amend Title 13 of the

Delaware Code Relating to Domestic Relations to Provide

for Same–Gender Civil Marriage and to Convert Existing

Civil Unions to Civil Marriages, 79 Del. Laws ch. 19

(2013); An act relating to marriage; providing for civil

marriage between two persons; providing for exemptions

and protections based on religious association, 2013

Minn. Laws ch. 74; An Act Relating to Domestic

Relations—Persons Eligible to Marry, 2013 R. I. Laws

ch. 4.

*2691 [18] In order to assess the validity of that intervention it is necessary to discuss the extent of the state power and authority over marriage as a matter of history and tradition. State laws defining and regulating marriage, of course, must respect the constitutional rights of persons, see, e.g., Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967); but, subject to those guarantees, “regulation of domestic relations” is “an area that has long been regarded as a virtually exclusive province of the States.” Sosna v. Iowa, 419 U.S. 393, 404, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975).

[19] The recognition of civil marriages is central to state

9

U.S. v. Windsor, 133 S.Ct. 2675 (2013)
domestic relations law applicable to its residents and citizens. See Williams v. North Carolina, 317 U.S. 287, 298, 63 S.Ct. 207, 87 L.Ed. 279 (1942) (“Each state as a sovereign has a rightful and legitimate concern in the marital status of persons domiciled within its borders”). The definition of marriage is the foundation of the State’s broader authority to regulate the subject of domestic relations with respect to the “[p]rotection of offspring, property interests, and the enforcement of marital responsibilities.” Ibid. “[T]he states, at the time of the adoption of the Constitution, possessed full power over the subject of marriage and divorce ... [and] the Constitution delegated no authority to the Government of the United States on the subject of marriage and divorce.” Haddock v. Haddock, 201 U.S. 562, 575, 26 S.Ct. 525, 50 L.Ed. 867 (1906); see also In re Burrus, 136 U.S. 586, 593–594, 10 S.Ct. 850, 34 L.Ed. 500 (1890) (“The whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States”).
[20] [21] Consistent with this allocation of authority, the Federal Government, through our history, has deferred to state-law policy decisions with respect to domestic relations. In De Sylva v. Ballentine, 351 U.S. 570, 76 S.Ct. 974, 100 L.Ed. 1415 (1956), for example, the Court held that, “[t]o decide who is the widow or widower of a deceased author, or who are his executors or next of kin,” under the Copyright Act “requires a reference to the law of the State which created those legal relationships” because “there is no federal law of domestic relations.” Id., at 580, 76 S.Ct. 974. In order to respect this principle, the federal courts, as a general rule, do not adjudicate issues of marital status even when there might otherwise be a basis for federal jurisdiction. See Ankenbrandt v. Richards, 504 U.S. 689, 703, 112 S.Ct. 2206, 119 L.Ed.2d 468 (1992). Federal courts will not hear divorce and custody cases even if they arise in diversity because of “the virtually exclusive primacy ... of the States in the regulation of domestic relations.” Id., at 714, 112 S.Ct. 2206 (Blackmun, J., concurring in judgment).
The significance of state responsibilities for the definition and regulation of marriage dates to the Nation’s beginning; for “when the Constitution was adopted the common understanding was that the domestic relations of husband and wife and parent and child were matters reserved to the States.” Ohio ex rel. Popovici v. Agler, 280 U.S. 379, 383–384, 50 S.Ct. 154, 74 L.Ed. 489 (1930). Marriage laws vary in some respects from State to State. For example, the required minimum age is 16 in Vermont, but only 13 in New Hampshire. Compare Vt.

Stat. Ann., Tit. 18, § 5142 (2012), with N.H.Rev.Stat. Ann. § 457:4 (West Supp.2012). Likewise the permissible degree of consanguinity can vary (most States permit first cousins to marry, but a handful—such as Iowa and Washington, see Iowa Code § 595.19 (2009); Wash. Rev.Code § 26.04.020 *2692 (2012)—prohibit the practice). But these rules are in every event consistent within each State.
[22] Against this background DOMA rejects the long-established precept that the incidents, benefits, and obligations of marriage are uniform for all married couples within each State, though they may vary, subject to constitutional guarantees, from one State to the next. Despite these considerations, it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance. The State’s power in defining the marital relation is of central relevance in this case quite apart from principles of federalism. Here the State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import. When the State used its historic and essential authority to define the marital relation in this way, its role and its power in making the decision enhanced the recognition, dignity, and protection of the class in their own community. DOMA, because of its reach and extent, departs from this history and tradition of reliance on state law to define marriage. “ ‘[D]iscriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision.’ ” Romer v. Evans, 517 U.S. 620, 633, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996) (quoting Louisville Gas & Elec. Co. v. Coleman, 277 U.S. 32, 37–38, 48 S.Ct. 423, 72 L.Ed. 770 (1928)).
The Federal Government uses this state-defined class for the opposite purpose—to impose restrictions and disabilities. That result requires this Court now to address whether the resulting injury and indignity is a deprivation of an essential part of the liberty protected by the Fifth Amendment. What the State of New York treats as alike the federal law deems unlike by a law designed to injure the same class the State seeks to protect.
[23] In acting first to recognize and then to allow same-sex marriages, New York was responding “to the initiative of those who [sought] a voice in shaping the destiny of their own times.” Bond v. United States, 564 U.S. ––––, ––––, 131 S.Ct. 2355, 2359, 180 L.Ed.2d 269 (2011). These actions were without doubt a proper exercise of its sovereign authority within our federal system, all in the
10

U.S. v. Windsor, 133 S.Ct. 2675 (2013)
way that the Framers of the Constitution intended. The dynamics of state government in the federal system are to allow the formation of consensus respecting the way the members of a discrete community treat each other in their daily contact and constant interaction with each other.
[24] The States’ interest in defining and regulating the marital relation, subject to constitutional guarantees, stems from the understanding that marriage is more than a routine classification for purposes of certain statutory benefits. Private, consensual sexual intimacy between two adult persons of the same sex may not be punished by the State, and it can form “but one element in a personal bond that is more enduring.” Lawrence v. Texas, 539 U.S. 558, 567, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003). By its recognition of the validity of same-sex marriages performed in other jurisdictions and then by authorizing same-sex unions and same-sex marriages, New York sought to give further protection and dignity to that bond. For same-sex couples who wished to be married, the State acted to give their lawful conduct a lawful status. This status is a far-reaching legal acknowledgment of the intimate relationship between two people, a relationship deemed by the State worthy of dignity in the community equal with all other marriages. It reflects both the community’s considered perspective on the historical *2693 roots of the institution of marriage and its evolving understanding of the meaning of equality.
IV
[25] [26] DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government. See U.S. Const., Amdt. 5; Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954). The Constitution’s guarantee of equality “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group. Department of Agriculture v. Moreno, 413 U.S. 528, 534–535, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973). In determining whether a law is motived by an improper animus or purpose, “ ‘[d]iscriminations of an unusual character’ ” especially require careful consideration. Supra, at 2692 (quoting Romer, supra, at 633, 116 S.Ct. 1620). DOMA cannot survive under these principles. The responsibility of the States for the regulation of domestic relations is an important indicator of the substantial societal impact the State’s classifications have in the daily lives and customs

of its people. DOMA’s unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage here operates to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriages. This is strong evidence of a law having the purpose and effect of disapproval of that class. The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.
The history of DOMA’s enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute. It was its essence. The House Report announced its conclusion that “it is both appropriate and necessary for Congress to do what it can to defend the institution of traditional heterosexual marriage.... H.R. 3396 is appropriately entitled the ‘Defense of Marriage Act.’ The effort to redefine ‘marriage’ to extend to homosexual couples is a truly radical proposal that would fundamentally alter the institution of marriage.” H.R.Rep. No. 104–664, pp. 12–13 (1996). The House concluded that DOMA expresses “both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo–Christian) morality.” Id., at 16 (footnote deleted). The stated purpose of the law was to promote an “interest in protecting the traditional moral teachings reflected in heterosexual-only marriage laws.” Ibid. Were there any doubt of this far-reaching purpose, the title of the Act confirms it: The Defense of Marriage.
The arguments put forward by BLAG are just as candid about the congressional purpose to influence or interfere with state sovereign choices about who may be married. As the title and dynamics of the bill indicate, its purpose is to discourage enactment of state same-sex marriage laws and to restrict the freedom and choice of couples married under those laws if they are enacted. The congressional goal was “to put a thumb on the scales and influence a state’s decision as to how to shape its own marriage laws.” Massachusetts, 682 F.3d, at 12–13. The Act’s demonstrated purpose is to ensure that if any State decides to recognize same-sex marriages, those unions will be treated as second-class marriages *2694 for purposes of federal law. This raises a most serious question under the Constitution’s Fifth Amendment.
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U.S. v. Windsor, 133 S.Ct. 2675 (2013)
DOMA’s operation in practice confirms this purpose. When New York adopted a law to permit same-sex marriage, it sought to eliminate inequality; but DOMA frustrates that objective through a system-wide enactment with no identified connection to any particular area of federal law. DOMA writes inequality into the entire United States Code. The particular case at hand concerns the estate tax, but DOMA is more than a simple determination of what should or should not be allowed as an estate tax refund. Among the over 1,000 statutes and numerous federal regulations that DOMA controls are laws pertaining to Social Security, housing, taxes, criminal sanctions, copyright, and veterans’ benefits.
DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency. Responsibilities, as well as rights, enhance the dignity and integrity of the person. And DOMA contrives to deprive some couples married under the laws of their State, but not other couples, of both rights and responsibilities. By creating two contradictory marriage regimes within the same State, DOMA forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect. By this dynamic DOMA undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, see Lawrence, 539 U.S. 558, 123 S.Ct. 2472, and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.
Under DOMA, same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways. By its great reach, DOMA touches many aspects of married and family life, from the mundane to the profound. It prevents same-sex married couples from obtaining government healthcare benefits they would otherwise receive. See 5 U.S.C. §§ 8901(5), 8905. It deprives them of the Bankruptcy Code’s special protections for domestic-support obligations. See 11

U.S.C. §§ 101(14A), 507(a)(1)(A), 523(a)(5), 523(a)(15). It forces them to follow a complicated procedure to file their state and federal taxes jointly. Technical Bulletin TB–55, 2010 Vt. Tax LEXIS 6 (Oct. 7, 2010); Brief for Federalism Scholars as Amici Curiae 34. It prohibits them from being buried together in veterans’ cemeteries. National Cemetery Administration Directive 3210/1, p. 37 (June 4, 2008).

For certain married couples, DOMA’s unequal effects are even more serious. The federal penal code makes it a crime to “assaul[t], kidna[p], or murde[r] ... a member of the immediate family” of “a United States official, a United States judge, [or] a Federal law enforcement officer,” 18 U.S.C. § 115(a)(1)(A), with the intent to influence or retaliate against that *2695 official, § 115(a)(1). Although a “spouse” qualifies as a member of the officer’s “immediate family,” § 115(c)(2), DOMA makes this protection inapplicable to same-sex spouses.

DOMA also brings financial harm to children of same-sex

couples. It raises the cost of health care for families by

taxing health benefits provided by employers to their

workers’ same-sex spouses. See 26 U.S.C. § 106; Treas.

Reg. § 1.106–1, 26 CFR § 1.106–1 (2012); IRS Private

Letter Ruling 9850011 (Sept. 10, 1998). And it denies or

reduces benefits allowed to families upon the loss of a

spouse and parent, benefits that are an integral part of

family security. See Social Security Administration,

Social Security Survivors Benefits 5 (2012) (benefits

available to a surviving spouse caring for the couple’s

child),

online

at

http://www.ssa.gov/pubs/EN–05–10084.pdf.

DOMA divests married same-sex couples of the duties and responsibilities that are an essential part of married life and that they in most cases would be honored to accept were DOMA not in force. For instance, because it is expected that spouses will support each other as they pursue educational opportunities, federal law takes into consideration a spouse’s income in calculating a student’s federal financial aid eligibility. See 20 U.S.C. § 1087nn(b). Same-sex married couples are exempt from this requirement. The same is true with respect to federal ethics rules. Federal executive and agency officials are prohibited from “participat[ing] personally and substantially” in matters as to which they or their spouses have a financial interest. 18 U.S.C. § 208(a). A similar statute prohibits Senators, Senate employees, and their spouses from accepting high-value gifts from certain sources, see 2 U.S.C. § 31–2(a)(1), and another mandates detailed financial disclosures by numerous high-ranking

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U.S. v. Windsor, 133 S.Ct. 2675 (2013)
officials and their spouses. See 5 U.S.C.App. §§ 102(a), (e). Under DOMA, however, these Government-integrity rules do not apply to same-sex spouses.
* * *
[27] The power the Constitution grants it also restrains. And though Congress has great authority to design laws to fit its own conception of sound national policy, it cannot deny the liberty protected by the Due Process Clause of the Fifth Amendment.
What has been explained to this point should more than suffice to establish that the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage. This requires the Court to hold, as it now does, that DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution.
[28] The liberty protected by the Fifth Amendment’s Due Process Clause contains within it the prohibition against denying to any person the equal protection of the laws. See Bolling, 347 U.S., at 499–500, 74 S.Ct. 693; Adarand Constructors, Inc. v. Penã, 515 U.S. 200, 217–218, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995). While the Fifth Amendment itself withdraws from Government the power to degrade or demean in the way this law does, the equal protection guarantee of the Fourteenth Amendment makes that Fifth Amendment right all the more specific and all the better understood and preserved.
The class to which DOMA directs its restrictions and restraints are those persons who are joined in same-sex marriages made lawful by the State. DOMA singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty. It imposes a *2696 disability on the class by refusing to acknowledge a status the State finds to be dignified and proper. DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment. This opinion and its holding are confined to those lawful marriages.

The judgment of the Court of Appeals for the Second Circuit is affirmed.
It is so ordered.
Chief Justice ROBERTS, dissenting.
I agree with Justice SCALIA that this Court lacks jurisdiction to review the decisions of the courts below. On the merits of the constitutional dispute the Court decides to decide, I also agree with Justice SCALIA that Congress acted constitutionally in passing the Defense of Marriage Act (DOMA). Interests in uniformity and stability amply justified Congress’s decision to retain the definition of marriage that, at that point, had been adopted by every State in our Nation, and every nation in the world. Post, at 2707 – 2708 (dissenting opinion).
The majority sees a more sinister motive, pointing out that the Federal Government has generally (though not uniformly) deferred to state definitions of marriage in the past. That is true, of course, but none of those prior state-by-state variations had involved differences over something—as the majority puts it—“thought of by most people as essential to the very definition of [marriage] and to its role and function throughout the history of civilization.” Ante, at 2689. That the Federal Government treated this fundamental question differently than it treated variations over consanguinity or minimum age is hardly surprising—and hardly enough to support a conclusion that the “principal purpose,” ante, at 2694, of the 342 Representatives and 85 Senators who voted for it, and the President who signed it, was a bare desire to harm. Nor do the snippets of legislative history and the banal title of the Act to which the majority points suffice to make such a showing. At least without some more convincing evidence that the Act’s principal purpose was to codify malice, and that it furthered no legitimate government interests, I would not tar the political branches with the brush of bigotry.
But while I disagree with the result to which the majority’s analysis leads it in this case, I think it more important to point out that its analysis leads no further. The Court does not have before it, and the logic of its opinion does not decide, the distinct question whether the States, in the exercise of their “historic and essential authority to define the marital relation,” ante, at 2692, may continue to utilize the traditional definition of marriage.
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U.S. v. Windsor, 133 S.Ct. 2675 (2013)
The majority goes out of its way to make this explicit in the penultimate sentence of its opinion. It states that “[t]his opinion and its holding are confined to those lawful marriages,” ante, at 2696 —referring to same-sex marriages that a State has already recognized as a result of the local “community’s considered perspective on the historical roots of the institution of marriage and its evolving understanding of the meaning of equality.” Ante, at 2681. Justice SCALIA believes this is a “ ‘bald, unreasoned disclaime[r].’ ” *2697 Post, at 2709. In my view, though, the disclaimer is a logical and necessary consequence of the argument the majority has chosen to adopt. The dominant theme of the majority opinion is that the Federal Government’s intrusion into an area “central to state domestic relations law applicable to its residents and citizens” is sufficiently “unusual” to set off alarm bells. Ante, at 2690, 2692. I think the majority goes off course, as I have said, but it is undeniable that its judgment is based on federalism.
The majority extensively chronicles DOMA’s departure from the normal allocation of responsibility between State and Federal Governments, emphasizing that DOMA “rejects the long-established precept that the incidents, benefits, and obligations of marriage are uniform for all married couples within each State.” Ante, at 2692. But there is no such departure when one State adopts or keeps a definition of marriage that differs from that of its neighbor, for it is entirely expected that state definitions would “vary, subject to constitutional guarantees, from one State to the next.” Ibid. Thus, while “[t]he State’s power in defining the marital relation is of central relevance” to the majority’s decision to strike down DOMA here, ibid., that power will come into play on the other side of the board in future cases about the constitutionality of state marriage definitions. So too will the concerns for state diversity and sovereignty that weigh against DOMA’s constitutionality in this case. See ante, at 2692.
It is not just this central feature of the majority’s analysis that is unique to DOMA, but many considerations on the periphery as well. For example, the majority focuses on the legislative history and title of this particular Act, ante, at 2693; those statute-specific considerations will, of course, be irrelevant in future cases about different statutes. The majority emphasizes that DOMA was a “systemwide enactment with no identified connection to any particular area of federal law,” but a State’s definition of marriage “is the foundation of the State’s broader authority to regulate the subject of domestic relations with

respect to the ‘[p]rotection of offspring, property interests, and the enforcement of marital responsibilities.’ ” Ante, at 2694, 2690. And the federal decision undermined (in the majority’s view) the “dignity [already] conferred by the States in the exercise of their sovereign power,” ante, at 2693, whereas a State’s decision whether to expand the definition of marriage from its traditional contours involves no similar concern.
We may in the future have to resolve challenges to state marriage definitions affecting same-sex couples. That issue, however, is not before us in this case, and we hold today that we lack jurisdiction to consider it in the particular context of Hollingsworth v. Perry, ––– U.S., at ––––, 133 S.Ct. 1521. I write only to highlight the limits of the majority’s holding and reasoning today, lest its opinion be taken to resolve not only a question that I believe is not properly before us—DOMA’s constitutionality—but also a question that all agree, and the Court explicitly acknowledges, is not at issue.
Justice SCALIA, with whom Justice THOMAS joins, and with whom THE CHIEF JUSTICE joins as to Part I, dissenting.
This case is about power in several respects. It is about the power of our people to govern themselves, and the power of this Court to pronounce the law. Today’s opinion aggrandizes the latter, with the predictable consequence of diminishing the former. We have no power to decide this case. And even if we did, we have no *2698 power under the Constitution to invalidate this democratically adopted legislation. The Court’s errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution in America.
I
A
The Court is eager—hungry—to tell everyone its view of the legal question at the heart of this case. Standing in the way is an obstacle, a technicality of little interest to anyone but the people of We the People, who created it as a barrier against judges’ intrusion into their lives. They gave judges, in Article III, only the “judicial Power,” a
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U.S. v. Windsor, 133 S.Ct. 2675 (2013)
power to decide not abstract questions but real, concrete “Cases” and “Controversies.” Yet the plaintiff and the Government agree entirely on what should happen in this lawsuit. They agree that the court below got it right; and they agreed in the court below that the court below that one got it right as well. What, then, are we doing here?
The answer lies at the heart of the jurisdictional portion of today’s opinion, where a single sentence lays bare the majority’s vision of our role. The Court says that we have the power to decide this case because if we did not, then our “primary role in determining the constitutionality of a law” (at least one that “has inflicted real injury on a plaintiff”) would “become only secondary to the President’s.” Ante, at 2688. But wait, the reader wonders—Windsor won below, and so cured her injury, and the President was glad to see it. True, says the majority, but judicial review must march on regardless, lest we “undermine the clear dictate of the separation-of-powers principle that when an Act of Congress is alleged to conflict with the Constitution, it is emphatically the province and duty of the judicial department to say what the law is.” Ibid. (internal quotation marks and brackets omitted).
That is jaw-dropping. It is an assertion of judicial supremacy over the people’s Representatives in Congress and the Executive. It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and everywhere “primary” in its role.
This image of the Court would have been unrecognizable to those who wrote and ratified our national charter. They knew well the dangers of “primary” power, and so created branches of government that would be “perfectly coordinate by the terms of their common commission,” none of which branches could “pretend to an exclusive or superior right of settling the boundaries between their respective powers.” The Federalist, No. 49, p. 314 (C. Rossiter ed. 1961) (J. Madison). The people did this to protect themselves. They did it to guard their right to self-rule against the black-robed supremacy that today’s majority finds so attractive. So it was that Madison could confidently state, with no fear of contradiction, that there was nothing of “greater intrinsic value” or “stamped with the authority of more enlightened patrons of liberty” than a government of separate and coordinate powers. Id., No. 47, at 301.
For this reason we are quite forbidden to say what the law is whenever (as today’s opinion asserts) “ ‘an Act of

Congress is alleged to conflict with the Constitution.’ ” Ante, at 2688. We can do so only when that allegation will determine the outcome of a lawsuit, and is contradicted by the other party. The “judicial Power” is not, as the majority believes, the power “ ‘to say what the law is,’ ” ibid., giving the Supreme Court the “primary role in determining the constitutionality of laws.” The *2699 majority must have in mind one of the foreign constitutions that pronounces such primacy for its constitutional court and allows that primacy to be exercised in contexts other than a lawsuit. See, e.g., Basic Law for the Federal Republic of Germany, Art. 93. The judicial power as Americans have understood it (and their English ancestors before them) is the power to adjudicate, with conclusive effect, disputed government claims (civil or criminal) against private persons, and disputed claims by private persons against the government or other private persons. Sometimes (though not always) the parties before the court disagree not with regard to the facts of their case (or not only with regard to the facts) but with regard to the applicable law—in which event (and only in which event) it becomes the “ ‘province and duty of the judicial department to say what the law is.’ ” Ante, at 2688.
In other words, declaring the compatibility of state or federal laws with the Constitution is not only not the “primary role” of this Court, it is not a separate, free-standing role at all. We perform that role incidentally—by accident, as it were—when that is necessary to resolve the dispute before us. Then, and only then, does it become “ ‘the province and duty of the judicial department to say what the law is.’ ” That is why, in 1793, we politely declined the Washington Administration’s request to “say what the law is” on a particular treaty matter that was not the subject of a concrete legal controversy. 3 Correspondence and Public Papers of John Jay 486–489 (H. Johnston ed. 1893). And that is why, as our opinions have said, some questions of law will never be presented to this Court, because there will never be anyone with standing to bring a lawsuit. See Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 227, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974); United States v. Richardson, 418 U.S. 166, 179, 94 S.Ct. 2940, 41 L.Ed.2d 678 (1974). As Justice Brandeis put it, we cannot “pass upon the constitutionality of legislation in a friendly, non-adversary, proceeding”; absent a “ ‘real, earnest and vital controversy between individuals,’ ” we have neither any work to do nor any power to do it. Ashwander v. TVA, 297 U.S. 288, 346, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (concurring opinion) (quoting Chicago & Grand Trunk R. Co. v. Wellman, 143 U.S. 339, 345, 12
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U.S. v. Windsor, 133 S.Ct. 2675 (2013)

S.Ct. 400, 36 L.Ed. 176 (1892)). Our authority begins and ends with the need to adjudge the rights of an injured party who stands before us seeking redress. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).

That is completely absent here. Windsor’s injury was cured by the judgment in her favor. And while, in ordinary circumstances, the United States is injured by a directive to pay a tax refund, this suit is far from ordinary. Whatever injury the United States has suffered will surely not be redressed by the action that it, as a litigant, asks us to take. The final sentence of the Solicitor General’s brief on the merits reads: “For the foregoing reasons, the judgment of the court of appeals should be affirmed.” Brief for United States (merits) 54 (emphasis added). That will not cure the Government’s injury, but carve it into stone. One could spend many fruitless afternoons ransacking our library for any other petitioner’s brief seeking an affirmance of the judgment against it.1 *2700 What the petitioner United States asks us to do in the case before us is exactly what the respondent Windsor asks us to do: not to provide relief from the judgment below but to say that that judgment was correct. And the same was true in the Court of Appeals: Neither party sought to undo the judgment for Windsor, and so that court should have dismissed the appeal (just as we should dismiss) for lack of jurisdiction. Since both parties agreed with the judgment of the District Court for the Southern District of New York, the suit should have ended there. The further proceedings have been a contrivance, having no object in mind except to elevate a District Court judgment that has no precedential effect in other courts, to one that has precedential effect throughout the Second Circuit, and then (in this Court) precedential effect throughout the United States.

1

For an even more advanced scavenger hunt, one might

search the annals of Anglo–American law for another

“Motion to Dismiss” like the one the United States filed

in District Court: It argued that the court should agree

“with Plaintiff and the United States” and “not dismiss”

the complaint. (Emphasis mine.) Then, having gotten

exactly what it asked for, the United States promptly

appealed.

We have never before agreed to speak—to “say what the law is”—where there is no controversy before us. In the more than two centuries that this Court has existed as an institution, we have never suggested that we have the power to decide a question when every party agrees with both its nominal opponent and the court below on that

question’s answer. The United States reluctantly conceded that at oral argument. See Tr. of Oral Arg. 19–20.
The closest we have ever come to what the Court blesses today was our opinion in INS v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983). But in that case, two parties to the litigation disagreed with the position of the United States and with the court below: the House and Senate, which had intervened in the case. Because Chadha concerned the validity of a mode of congressional action—the one-house legislative veto—the House and Senate were threatened with destruction of what they claimed to be one of their institutional powers. The Executive choosing not to defend that power,2 we permitted the House and Senate to intervene. Nothing like that is present here.

2

There the Justice Department’s refusal to defend the

legislation was in accord with its longstanding (and

entirely reasonable) practice of declining to defend

legislation that in its view infringes upon Presidential

powers. There is no justification for the Justice

Department’s abandoning the law in the present case.

The majority opinion makes a point of scolding the

President for his “failure to defend the constitutionality

of an Act of Congress based on a constitutional theory

not yet established in judicial decisions,” ante, at 2688.

But the rebuke is tongue-in-cheek, for the majority

gladly gives the President what he wants. Contrary to

all precedent, it decides this case (and even decides it

the way the President wishes) despite his abandonment

of the defense and the consequent absence of a case or

controversy.

To be sure, the Court in Chadha said that statutory aggrieved-party status was “not altered by the fact that the Executive may agree with the holding that the statute in question is unconstitutional.” Id., at 930–931, 103 S.Ct. 2764. But in a footnote to that statement, the Court acknowledged Article III’s separate requirement of a “justiciable case or controversy,” and stated that this requirement was satisfied “because of the presence of the two Houses of Congress as adverse parties.” Id., at 931, n. 6, 103 S.Ct. 2764. Later in its opinion, the Chadha Court remarked that the United States’ announced intention to enforce the statute also sufficed to permit judicial review, even absent congressional participation. Id., at 939, 103 S.Ct. 2764. That remark is true, as a description of the judicial review conducted in the Court of Appeals, where the Houses of Congress *2701 had not intervened. (The case originated in the Court of Appeals, since it sought
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U.S. v. Windsor, 133 S.Ct. 2675 (2013)
review of agency action under 8 U.S.C. § 1105a(a) (1976 ed.).) There, absent a judgment setting aside the INS order, Chadha faced deportation. This passage of our opinion seems to be addressing that initial standing in the Court of Appeals, as indicated by its quotation from the lower court’s opinion, 462 U.S., at 939–940, 103 S.Ct. 2764. But if it was addressing standing to pursue the appeal, the remark was both the purest dictum (as congressional intervention at that point made the required adverseness “beyond doubt,” id., at 939, 103 S.Ct. 2764), and quite incorrect. When a private party has a judicial decree safely in hand to prevent his injury, additional judicial action requires that a party injured by the decree seek to undo it. In Chadha, the intervening House and Senate fulfilled that requirement. Here no one does.
The majority’s discussion of the requirements of Article III bears no resemblance to our jurisprudence. It accuses the amicus (appointed to argue against our jurisdiction) of “elid[ing] the distinction between ... the jurisdictional requirements of Article III and the prudential limits on its exercise.” Ante, at 2685. It then proceeds to call the requirement of adverseness a “prudential” aspect of standing. Of standing. That is incomprehensible. A plaintiff (or appellant) can have all the standing in the world—satisfying all three standing requirements of Lujan that the majority so carefully quotes, ante, at 2686 —and yet no Article III controversy may be before the court. Article III requires not just a plaintiff (or appellant) who has standing to complain but an opposing party who denies the validity of the complaint. It is not the amicus that has done the eliding of distinctions, but the majority, calling the quite separate Article III requirement of adverseness between the parties an element (which it then pronounces a “prudential” element) of standing. The question here is not whether, as the majority puts it, “the United States retains a stake sufficient to support Article III jurisdiction,” ibid. the question is whether there is any controversy (which requires contradiction ) between the United States and Ms. Windsor. There is not.
I find it wryly amusing that the majority seeks to dismiss the requirement of party-adverseness as nothing more than a “prudential” aspect of the sole Article III requirement of standing. (Relegating a jurisdictional requirement to “prudential” status is a wondrous device, enabling courts to ignore the requirement whenever they believe it “prudent”—which is to say, a good idea.) Half a century ago, a Court similarly bent upon announcing its view regarding the constitutionality of a federal statute achieved that goal by effecting a remarkably similar but completely opposite distortion of the principles limiting

our jurisdiction. The Court’s notorious opinion in Flast v. Cohen, 392 U.S. 83, 98–101, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968), held that standing was merely an element (which it pronounced to be a “prudential” element) of the sole Article III requirement of adverseness. We have been living with the chaos created by that power-grabbing decision ever since, see Hein v. Freedom From Religion Foundation, Inc., 551 U.S. 587, 127 S.Ct. 2553, 168 L.Ed.2d 424 (2007), as we will have to live with the chaos created by this one.
The authorities the majority cites fall miles short of supporting the counterintuitive notion that an Article III “controversy” can exist without disagreement between the parties. In Deposit Guaranty Nat. Bank v. Roper, 445 U.S. 326, 100 S.Ct. 1166, 63 L.Ed.2d 427 (1980), the District Court had entered judgment in the individual plaintiff’s favor based on the *2702 defendant bank’s offer to pay the full amount claimed. The plaintiff, however, sought to appeal the District Court’s denial of class certification under Federal Rule of Civil Procedure 23. There was a continuing dispute between the parties concerning the issue raised on appeal. The same is true of the other case cited by the majority, Camreta v. Greene, 563 U.S. ––––, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (2011). There the District Court found that the defendant state officers had violated the Fourth Amendment, but rendered judgment in their favor because they were entitled to official immunity, application of the Fourth Amendment to their conduct not having been clear at the time of violation. The officers sought to appeal the holding of Fourth Amendment violation, which would circumscribe their future conduct; the plaintiff continued to insist that a Fourth Amendment violation had occurred. The “prudential” discretion to which both those cases refer was the discretion to deny an appeal even when a live controversy exists—not the discretion to grant one when it does not. The majority can cite no case in which this Court entertained an appeal in which both parties urged us to affirm the judgment below. And that is because the existence of a controversy is not a “prudential” requirement that we have invented, but an essential element of an Article III case or controversy. The majority’s notion that a case between friendly parties can be entertained so long as “adversarial presentation of the issues is assured by the participation of amici curiae prepared to defend with vigor” the other side of the issue, ante, at 2687, effects a breathtaking revolution in our Article III jurisprudence.
It may be argued that if what we say is true some Presidential determinations that statutes are
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U.S. v. Windsor, 133 S.Ct. 2675 (2013)
unconstitutional will not be subject to our review. That is as it should be, when both the President and the plaintiff agree that the statute is unconstitutional. Where the Executive is enforcing an unconstitutional law, suit will of course lie; but if, in that suit, the Executive admits the unconstitutionality of the law, the litigation should end in an order or a consent decree enjoining enforcement. This suit saw the light of day only because the President enforced the Act (and thus gave Windsor standing to sue) even though he believed it unconstitutional. He could have equally chosen (more appropriately, some would say) neither to enforce nor to defend the statute he believed to be unconstitutional, see Presidential Authority to Decline to Execute Unconstitutional Statutes, 18 Op. Off. Legal Counsel 199 (Nov. 2, 1994)—in which event Windsor would not have been injured, the District Court could not have refereed this friendly scrimmage, and the Executive’s determination of unconstitutionality would have escaped this Court’s desire to blurt out its view of the law. The matter would have been left, as so many matters ought to be left, to a tug of war between the President and the Congress, which has innumerable means (up to and including impeachment) of compelling the President to enforce the laws it has written. Or the President could have evaded presentation of the constitutional issue to this Court simply by declining to appeal the District Court and Court of Appeals dispositions he agreed with. Be sure of this much: If a President wants to insulate his judgment of unconstitutionality from our review, he can. What the views urged in this dissent produce is not insulation from judicial review but insulation from Executive contrivance.
The majority brandishes the famous sentence from Marbury v. Madison, 1 Cranch 137, 177, 2 L.Ed. 60 (1803) that “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Ante, at 2688 (internal quotation *2703 marks omitted). But that sentence neither says nor implies that it is always the province and duty of the Court to say what the law is—much less that its responsibility in that regard is a “primary” one. The very next sentence of Chief Justice Marshall’s opinion makes the crucial qualification that today’s majority ignores: “Those who apply the rule to particular cases, must of necessity expound and interpret that rule.” 1 Cranch, at 177 (emphasis added). Only when a “particular case” is before us—that is, a controversy that it is our business to resolve under Article III—do we have the province and duty to pronounce the law. For the views of our early Court more precisely addressing the question before us here, the majority ought instead to have consulted the opinion of Chief Justice Taney in Lord v.

Veazie, 8 How. 251, 12 L.Ed. 1067 (1850):
“The objection in the case before us is ... that the plaintiff and defendant have the same interest, and that interest adverse and in conflict with the interest of third persons, whose rights would be seriously affected if the question of law was decided in the manner that both of the parties to this suit desire it to be. “A judgment entered under such circumstances, and for such purposes, is a mere form. The whole proceeding was in contempt of the court, and highly reprehensible.... A judgment in form, thus procured, in the eye of the law is no judgment of the court. It is a nullity, and no writ of error will lie upon it. This writ is, therefore, dismissed.” Id., at 255–256.
There is, in the words of Marbury, no “necessity [to] expound and interpret” the law in this case; just a desire to place this Court at the center of the Nation’s life. 1 Cranch, at 177, 2 L.Ed. 60.
B
A few words in response to the theory of jurisdiction set forth in Justice ALITO’s dissent: Though less far reaching in its consequences than the majority’s conversion of constitutionally required adverseness into a discretionary element of standing, the theory of that dissent similarly elevates the Court to the “primary” determiner of constitutional questions involving the separation of powers, and, to boot, increases the power of the most dangerous branch: the “legislative department,” which by its nature “draw [s] all power into its impetuous vortex.” The Federalist, No. 48, at 309 (J. Madison). Heretofore in our national history, the President’s failure to “take Care that the Laws be faithfully executed,” U.S. Const., Art. II, § 3, could only be brought before a judicial tribunal by someone whose concrete interests were harmed by that alleged failure. Justice ALITO would create a system in which Congress can hale the Executive before the courts not only to vindicate its own institutional powers to act, but to correct a perceived inadequacy in the execution of its laws.3 This would lay to rest Tocqueville’s *2704 praise of our judicial system as one which “intimately bind[s] the case made for the law with the case made for one man,” one in which legislation is “no longer exposed to the daily aggression of the parties,” and in which “[t]he political question that [the judge] must resolve is linked to the interest” of private litigants. A. de Tocqueville, Democracy in America 97 (H. Mansfield & D. Winthrop
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eds. 2000). That would be replaced by a system in which Congress and the Executive can pop immediately into court, in their institutional capacity, whenever the President refuses to implement a statute he believes to be unconstitutional, and whenever he implements a law in a manner that is not to Congress’s liking.

3

Justice ALITO attempts to limit his argument by

claiming that Congress is injured (and can therefore

appeal) when its statute is held unconstitutional without

Presidential defense, but is not injured when its statute

is held unconstitutional despite Presidential defense. I

do not understand that line. The injury to Congress is

the same whether the President has defended the statute

or not. And if the injury is threatened, why should

Congress not be able to participate in the suit from the

beginning, just as the President can? And if having a

statute declared unconstitutional (and therefore

inoperative) by a court is an injury, why is it not an

injury when a statute is declared unconstitutional by the

President and rendered inoperative by his consequent

failure to enforce it? Or when the President simply

declines to enforce it without opining on its

constitutionality? If it is the inoperativeness that

constitutes the injury—the “impairment of [the

legislative] function,” as Justice ALITO puts it, post, at

2704 —it should make no difference which of the other

two branches inflicts it, and whether the Constitution is

the pretext. A principled and predictable system of

jurisprudence cannot rest upon a shifting concept of

injury, designed to support standing when we would

like it. If this Court agreed with Justice ALITO’s

distinction, its opinion in Raines v. Byrd, 521 U.S. 811,

117 S.Ct. 2312, 138 L.Ed.2d 849 (1997), which

involved an original suit by Members of Congress

challenging an assertedly unconstitutional law, would

have been written quite differently; and Justice

ALITO’s distinguishing of that case on grounds quite

irrelevant to his theory of standing would have been

unnecessary.

Justice ALITO’s notion of standing will likewise enormously shrink the area to which “judicial censure, exercised by the courts on legislation, cannot extend,” ibid. For example, a bare majority of both Houses could bring into court the assertion that the Executive’s implementation of welfare programs is too generous—a failure that no other litigant would have standing to complain about. Moreover, as we indicated in Raines v. Byrd, 521 U.S. 811, 828, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997), if Congress can sue the Executive for the erroneous application of the law that “injures” its power to legislate, surely the Executive can sue Congress for its erroneous adoption of an unconstitutional law that

“injures” the Executive’s power to administer—or perhaps for its protracted failure to act on one of his nominations. The opportunities for dragging the courts into disputes hitherto left for political resolution are endless.
Justice ALITO’s dissent is correct that Raines did not formally decide this issue, but its reasoning does. The opinion spends three pages discussing famous, decades-long disputes between the President and Congress—regarding congressional power to forbid the Presidential removal of executive officers, regarding the legislative veto, regarding congressional appointment of executive officers, and regarding the pocket veto—that would surely have been promptly resolved by a Congress–vs.–the–President lawsuit if the impairment of a branch’s powers alone conferred standing to commence litigation. But it does not, and never has; the “enormous power that the judiciary would acquire” from the ability to adjudicate such suits “would have made a mockery of [Hamilton’s] quotation of Montesquieu to the effect that ‘of the three powers above mentioned ... the JUDICIARY is next to nothing.’ ” Barnes v. Kline, 759 F.2d 21, 58 (C.A.D.C.1985) (Bork, J., dissenting) (quoting The Federalist No. 78 (A. Hamilton)).
To be sure, if Congress cannot invoke our authority in the way that JUSTICE ALITO proposes, then its only recourse is to confront the President directly. Unimaginable evil this is not. Our system is designed for confrontation. That is what “[a]mbition ... counteract[ing] ambition,” The Federalist, No. 51, at 322 (J. Madison), is all about. If majorities in both *2705 Houses of Congress care enough about the matter, they have available innumerable ways to compel executive action without a lawsuit—from refusing to confirm Presidential appointees to the elimination of funding. (Nothing says “enforce the Act” quite like “... or you will have money for little else.”) But the condition is crucial; Congress must care enough to act against the President itself, not merely enough to instruct its lawyers to ask us to do so. Placing the Constitution’s entirely anticipated political arm wrestling into permanent judicial receivership does not do the system a favor. And by the way, if the President loses the lawsuit but does not faithfully implement the Court’s decree, just as he did not faithfully implement Congress’s statute, what then? Only Congress can bring him to heel by ... what do you think? Yes: a direct confrontation with the President.
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U.S. v. Windsor, 133 S.Ct. 2675 (2013)
II
For the reasons above, I think that this Court has, and the Court of Appeals had, no power to decide this suit. We should vacate the decision below and remand to the Court of Appeals for the Second Circuit, with instructions to dismiss the appeal. Given that the majority has volunteered its view of the merits, however, I proceed to discuss that as well.

A
There are many remarkable things about the majority’s merits holding. The first is how rootless and shifting its justifications are. For example, the opinion starts with seven full pages about the traditional power of States to define domestic relations—initially fooling many readers, I am sure, into thinking that this is a federalism opinion. But we are eventually told that “it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution,” and that “[t]he State’s power in defining the marital relation is of central relevance in this case quite apart from principles of federalism” because “the State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import.” Ante, at 2681. But no one questions the power of the States to define marriage (with the concomitant conferral of dignity and status), so what is the point of devoting seven pages to describing how long and well established that power is? Even after the opinion has formally disclaimed reliance upon principles of federalism, mentions of “the usual tradition of recognizing and accepting state definitions of marriage” continue. See, e.g., ante, at 2681. What to make of this? The opinion never explains. My guess is that the majority, while reluctant to suggest that defining the meaning of “marriage” in federal statutes is unsupported by any of the Federal Government’s enumerated powers,4 nonetheless needs some rhetorical basis to support its pretense that today’s prohibition of laws excluding same-sex marriage is confined to the Federal Government (leaving the second, state-law shoe to be dropped later, maybe next Term). But I am only guessing.

4

Such a suggestion would be impossible, given the

Federal Government’s long history of making

pronouncements regarding marriage—for example,

conditioning Utah’s entry into the Union upon its

prohibition of polygamy. See Act of July 16, 1894, ch.

138, § 3, 28 Stat. 108 (“The constitution [of Utah]”

must provide “perfect toleration of religious sentiment,” “Provided, That polygamous or plural marriages are forever prohibited”).

Equally perplexing are the opinion’s references to “the Constitution’s guarantee of equality.” Ibid. Near the end of the opinion, we are told that although the “equal protection guarantee of the Fourteenth Amendment makes [the] Fifth *2706 Amendment [due process] right all the more specific and all the better understood and preserved”—what can that mean?—“the Fifth Amendment itself withdraws from Government the power to degrade or demean in the way this law does.” Ante, at 2695. The only possible interpretation of this statement is that the Equal Protection Clause, even the Equal Protection Clause as incorporated in the Due Process Clause, is not the basis for today’s holding. But the portion of the majority opinion that explains why DOMA is unconstitutional (Part IV) begins by citing Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954), Department of Agriculture v. Moreno, 413 U.S. 528, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973), and Romer v. Evans, 517 U.S. 620, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996)—all of which are equal-protection cases.5 And those three cases are the only authorities that the Court cites in Part IV about the Constitution’s meaning, except for its citation of Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) (not an equal-protection case) to support its passing assertion that the Constitution protects the “moral and sexual choices” of same-sex couples, ante, at 2694.

5

Since the Equal Protection Clause technically applies

only against the States, see U.S. Const., Amdt. 14,

Bolling and Moreno, dealing with federal action, relied

upon “the equal protection component of the Due

Process Clause of the Fifth Amendment,” Moreno, 413

U.S., at 533, 93 S.Ct. 2821.

Moreover, if this is meant to be an equal-protection opinion, it is a confusing one. The opinion does not resolve and indeed does not even mention what had been the central question in this litigation: whether, under the Equal Protection Clause, laws restricting marriage to a man and a woman are reviewed for more than mere rationality. That is the issue that divided the parties and the court below, compare Brief for Respondent Bipartisan Legal Advisory Group of U.S. House of Representatives (merits) 24–28 (no), with Brief for Respondent Windsor (merits) 17–31 and Brief for United States (merits) 18–36
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U.S. v. Windsor, 133 S.Ct. 2675 (2013)
(yes); and compare 699 F.3d 169, 180–185 (C.A.2 2012) (yes), with id., at 208–211 (Straub, J., dissenting in part and concurring in part) (no). In accord with my previously expressed skepticism about the Court’s “tiers of scrutiny” approach, I would review this classification only for its rationality. See United States v. Virginia, 518 U.S. 515, 567–570, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996) (SCALIA, J., dissenting). As nearly as I can tell, the Court agrees with that; its opinion does not apply strict scrutiny, and its central propositions are taken from rational-basis cases like Moreno. But the Court certainly does not apply anything that resembles that deferential framework. See Heller v. Doe, 509 U.S. 312, 320, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993) (a classification “ ‘must be upheld ... if there is any reasonably conceivable state of facts’ ” that could justify it).
The majority opinion need not get into the strict-vs.-rational-basis scrutiny question, and need not justify its holding under either, because it says that DOMA is unconstitutional as “a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution,” ante, at 2695; that it violates “basic due process” principles, ante, at 2693; and that it inflicts an “injury and indignity” of a kind that denies “an essential part of the liberty protected by the Fifth Amendment,” ante, at 2692. The majority never utters the dread words “substantive due process,” perhaps sensing the disrepute into which that doctrine has fallen, but that is what those statements mean. Yet the opinion *2707 does not argue that same-sex marriage is “deeply rooted in this Nation’s history and tradition,” Washington v. Glucksberg, 521 U.S. 702, 720–721, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997), a claim that would of course be quite absurd. So would the further suggestion (also necessary, under our substantive-due-process precedents) that a world in which DOMA exists is one bereft of “ ‘ordered liberty.’ ” Id., at 721, 117 S.Ct. 2258 (quoting Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 82 L.Ed. 288 (1937)).
Some might conclude that this loaf could have used a while longer in the oven. But that would be wrong; it is already overcooked. The most expert care in preparation cannot redeem a bad recipe. The sum of all the Court’s nonspecific hand-waving is that this law is invalid (maybe on equal-protection grounds, maybe on substantive-due-process grounds, and perhaps with some amorphous federalism component playing a role) because it is motivated by a “ ‘bare ... desire to harm’ ” couples in same-sex marriages. Ante, at 2693. It is this proposition with which I will therefore engage.

B
As I have observed before, the Constitution does not forbid the government to enforce traditional moral and sexual norms. See Lawrence v. Texas, 539 U.S. 558, 599, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) (SCALIA, J., dissenting). I will not swell the U.S. Reports with restatements of that point. It is enough to say that the Constitution neither requires nor forbids our society to approve of same-sex marriage, much as it neither requires nor forbids us to approve of no-fault divorce, polygamy, or the consumption of alcohol.
However, even setting aside traditional moral disapproval of same-sex marriage (or indeed same-sex sex), there are many perfectly valid—indeed, downright boring—justifying rationales for this legislation. Their existence ought to be the end of this case. For they give the lie to the Court’s conclusion that only those with hateful hearts could have voted “aye” on this Act. And more importantly, they serve to make the contents of the legislators’ hearts quite irrelevant: “It is a familiar principle of constitutional law that this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive.” United States v. O’Brien, 391 U.S. 367, 383, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). Or at least it was a familiar principle. By holding to the contrary, the majority has declared open season on any law that (in the opinion of the law’s opponents and any panel of like-minded federal judges) can be characterized as mean-spirited.
The majority concludes that the only motive for this Act was the “bare ... desire to harm a politically unpopular group.” Ante, at 2693. Bear in mind that the object of this condemnation is not the legislature of some once-Confederate Southern state (familiar objects of the Court’s scorn, see, e.g., Edwards v. Aguillard, 482 U.S. 578, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987)), but our respected coordinate branches, the Congress and Presidency of the United States. Laying such a charge against them should require the most extraordinary evidence, and I would have thought that every attempt would be made to indulge a more anodyne explanation for the statute. The majority does the opposite—affirmatively concealing from the reader the arguments that exist in justification. It makes only a passing mention of the “arguments put forward” by the Act’s defenders, and does not even trouble to paraphrase or describe them. See ante, at 2693. I imagine that this is because it is harder to
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U.S. v. Windsor, 133 S.Ct. 2675 (2013)
maintain the illusion *2708 of the Act’s supporters as unhinged members of a wild-eyed lynch mob when one first describes their views as they see them.
To choose just one of these defenders’ arguments, DOMA avoids difficult choice-of-law issues that will now arise absent a uniform federal definition of marriage. See, e.g., Baude, Beyond DOMA: Choice of State Law in Federal Statutes, 64 Stan. L.Rev. 1371 (2012). Imagine a pair of women who marry in Albany and then move to Alabama, which does not “recognize as valid any marriage of parties of the same sex.” Ala.Code § 30–1–19(e) (2011). When the couple files their next federal tax return, may it be a joint one? Which State’s law controls, for federal-law purposes: their State of celebration (which recognizes the marriage) or their State of domicile (which does not)? (Does the answer depend on whether they were just visiting in Albany?) Are these questions to be answered as a matter of federal common law, or perhaps by borrowing a State’s choice-of-law rules? If so, which State’s? And what about States where the status of an out-of-state same-sex marriage is an unsettled question under local law? See Godfrey v. Spano, 13 N.Y.3d 358, 892 N.Y.S.2d 272, 920 N.E.2d 328 (2009). DOMA avoided all of this uncertainty by specifying which marriages would be recognized for federal purposes. That is a classic purpose for a definitional provision.
Further, DOMA preserves the intended effects of prior legislation against then-unforeseen changes in circumstance. When Congress provided (for example) that a special estate-tax exemption would exist for spouses, this exemption reached only opposite-sex spouses—those being the only sort that were recognized in any State at the time of DOMA’s passage. When it became clear that changes in state law might one day alter that balance, DOMA’s definitional section was enacted to ensure that state-level experimentation did not automatically alter the basic operation of federal law, unless and until Congress made the further judgment to do so on its own. That is not animus—just stabilizing prudence. Congress has hardly demonstrated itself unwilling to make such further, revising judgments upon due deliberation. See, e.g., Don’t Ask, Don’t Tell Repeal Act of 2010, 124 Stat. 3515.
The Court mentions none of this. Instead, it accuses the Congress that enacted this law and the President who signed it of something much worse than, for example, having acted in excess of enumerated federal powers—or even having drawn distinctions that prove to be irrational. Those legal errors may be made in good faith, errors

though they are. But the majority says that the supporters of this Act acted with malice—with the “purpose” (ante, at 2695) “to disparage and to injure” same-sex couples. It says that the motivation for DOMA was to “demean,” ibid.; to “impose inequality,” ante, at 2694; to “impose ... a stigma,” ante, at 2692; to deny people “equal dignity,” ibid.; to brand gay people as “unworthy,” ante, at 2694; and to “humiliat[e ]” their children, ibid. (emphasis added).
I am sure these accusations are quite untrue. To be sure (as the majority points out), the legislation is called the Defense of Marriage Act. But to defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to condemn, demean, or humiliate other constitutions. To hurl such accusations so casually demeans this institution. In the majority’s judgment, any resistance to its holding is beyond the pale of reasoned disagreement. To question its high-handed *2709 invalidation of a presumptively valid statute is to act (the majority is sure) with the purpose to “disparage,” “injure,” “degrade,” “demean,” and “humiliate” our fellow human beings, our fellow citizens, who are homosexual. All that, simply for supporting an Act that did no more than codify an aspect of marriage that had been unquestioned in our society for most of its existence—indeed, had been unquestioned in virtually all societies for virtually all of human history. It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race.
* * *
The penultimate sentence of the majority’s opinion is a naked declaration that “[t]his opinion and its holding are confined” to those couples “joined in same-sex marriages made lawful by the State.” Ante, at 2696, 2695. I have heard such “bald, unreasoned disclaimer[s]” before. Lawrence, 539 U.S., at 604, 123 S.Ct. 2472. When the Court declared a constitutional right to homosexual sodomy, we were assured that the case had nothing, nothing at all to do with “whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Id., at 578, 123 S.Ct. 2472. Now we are told that DOMA is invalid because it “demeans the couple, whose moral and sexual choices the Constitution protects,” ante, at 2694 —with an accompanying citation of Lawrence. It takes real cheek for today’s majority to assure us, as it is going out the door, that a constitutional requirement to give formal
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U.S. v. Windsor, 133 S.Ct. 2675 (2013)

recognition to same-sex marriage is not at issue here—when what has preceded that assurance is a lecture on how superior the majority’s moral judgment in favor of same-sex marriage is to the Congress’s hateful moral judgment against it. I promise you this: The only thing that will “confine” the Court’s holding is its sense of what it can get away with.

I do not mean to suggest disagreement with THE CHIEF JUSTICE’s view, ante, pp. 2696 – 2697 (dissenting opinion), that lower federal courts and state courts can distinguish today’s case when the issue before them is state denial of marital status to same-sex couples—or even that this Court could theoretically do so. Lord, an opinion with such scatter-shot rationales as this one (federalism noises among them) can be distinguished in many ways. And deserves to be. State and lower federal courts should take the Court at its word and distinguish away.

In my opinion, however, the view that this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today’s opinion. As I have said, the real rationale of today’s opinion, whatever disappearing trail of its legalistic argle-bargle one chooses to follow, is that DOMA is motivated by “ ‘bare ... desire to harm’ ” couples in same-sex marriages. Supra, at 2691. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status. Consider how easy (inevitable) it is to make the following substitutions in a passage from today’s opinion ante, at 2694:

“DOMA’s This state law’s

principal effect is to identify a

subset of state-sanctioned

marriages

constitutionally

protected sexual relationships, see

Lawrence, and make them unequal.

The principal purpose is to impose

inequality, not for other reasons

like governmental efficiency.

Responsibilities, as well as rights,

enhance the dignity and integrity of

the person. And DOMA this state

law contrives to deprive some

couples married under the laws of

their State enjoying constitutionally

protected

*2710

sexual

relationships, but not other couples,

of both rights and responsibilities.”

Or try this passage, from ante, at 2694:

“[DOMA] This state law tells those couples, and all the world, that their otherwise valid marriages relationships are unworthy of federal state recognition. This places same-sex couples in an unstable position of being in a second-tier marriage relationship. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, see Lawrence,....”

Or this, from ante, at 2694 —which does not even require alteration, except as to the invented number:

“And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.”

Similarly

transposable

passages—deliberately

transposable, I think—abound. In sum, that Court which

finds it so horrific that Congress irrationally and hatefully

robbed same-sex couples of the “personhood and dignity”

which state legislatures conferred upon them, will of a

certitude be similarly appalled by state legislatures’

irrational and hateful failure to acknowledge that

“personhood and dignity” in the first place. Ante, at 2696.

As far as this Court is concerned, no one should be

fooled; it is just a matter of listening and waiting for the

other shoe.

By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition. Henceforth those challengers will lead with this Court’s declaration that there is “no legitimate purpose” served by such a law, and will claim that the traditional definition has “the purpose and effect to disparage and to injure” the “personhood and dignity” of same-sex couples, see ante, at 2695, 2696. The majority’s limiting assurance will be meaningless in the face of language like that, as the majority well knows.

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U.S. v. Windsor, 133 S.Ct. 2675 (2013)

That is why the language is there. The result will be a judicial distortion of our society’s debate over marriage—a debate that can seem in need of our clumsy “help” only to a member of this institution.
As to that debate: Few public controversies touch an institution so central to the lives of so many, and few inspire such attendant passion by good people on all sides. Few public controversies will ever demonstrate so vividly the beauty of what our Framers gave us, a gift the Court pawns today to buy its stolen moment in the spotlight: a system of government that permits us to rule ourselves. Since DOMA’s passage, citizens on all sides of the question have seen victories and they have seen defeats. There have been plebiscites, legislation, persuasion, and loud voices—in other words, democracy. Victories in one place for some, see North Carolina Const., Amdt. 1 (providing that “[m]arriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State”) (approved by a popular vote, 61% to 39% on May 8, 2012),6 are offset by victories in other places for others, see Maryland Question 6 (establishing “that Maryland’s civil marriage laws allow gay *2711 and lesbian couples to obtain a civil marriage license”) (approved by a popular vote, 52% to 48%, on November 6, 2012).7 Even in a single State, the question has come out differently on different occasions. Compare Maine Question 1 (permitting “the State of Maine to issue marriage licenses to same-sex couples”) (approved by a popular vote, 53% to 47%, on November 6, 2012)8 with Maine Question 1 (rejecting “the new law that lets same-sex couples marry”) (approved by a popular vote, 53% to 47%, on November 3, 2009).9

6

North Carolina State Board of Elections, Official

Results: Primary Election of May 8, 2012,

Constitutional Amendment.

7

Maryland State Board of Elections, Official 2012

Presidential General Election Results for All State

Questions, Question 06.

8

Maine Bureau of Elections, Nov. 3, 2009, Referendum

Tabulation (Question 1).

9

Maine Bureau of Elections, Nov. 6, 2012, Referendum

Election Tabulations (Question 1).

In the majority’s telling, this story is black-and-white: Hate your neighbor or come along with us. The truth is more complicated. It is hard to admit that one’s political opponents are not monsters, especially in a struggle like this one, and the challenge in the end proves more than today’s Court can handle. Too bad. A reminder that disagreement over something so fundamental as marriage can still be politically legitimate would have been a fit task for what in earlier times was called the judicial temperament. We might have covered ourselves with honor today, by promising all sides of this debate that it was theirs to settle and that we would respect their resolution. We might have let the People decide.
But that the majority will not do. Some will rejoice in today’s decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better. I dissent.
Justice ALITO, with whom Justice THOMAS joins as to Parts II and III, dissenting.
Our Nation is engaged in a heated debate about same-sex marriage. That debate is, at bottom, about the nature of the institution of marriage. Respondent Edith Windsor, supported by the United States, asks this Court to intervene in that debate, and although she couches her argument in different terms, what she seeks is a holding that enshrines in the Constitution a particular understanding of marriage under which the sex of the partners makes no difference. The Constitution, however, does not dictate that choice. It leaves the choice to the people, acting through their elected representatives at both the federal and state levels. I would therefore hold that Congress did not violate Windsor’s constitutional rights by enacting § 3 of the Defense of Marriage Act (DOMA), 110 Stat. 2419, which defines the meaning of marriage under federal statutes that either confer upon married persons certain federal benefits or impose upon them certain federal obligations.
I
I turn first to the question of standing. In my view, the United States clearly is not a proper petitioner in this case.
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U.S. v. Windsor, 133 S.Ct. 2675 (2013)

The United States does not ask us to overturn the judgment of the court below or to alter that judgment in any way. Quite to the contrary, the United States argues emphatically in favor of the correctness of that judgment. We have never before reviewed a decision at the sole behest of a party that took such a position, and to do *2712 so would be to render an advisory opinion, in violation of Article III’s dictates. For the reasons given in Justice SCALIA’s dissent, I do not find the Court’s arguments to the contrary to be persuasive.
Whether the Bipartisan Legal Advisory Group of the House of Representatives (BLAG) has standing to petition is a much more difficult question. It is also a significantly closer question than whether the intervenors in Hollingsworth v. Perry, ante, ––– U.S., at ––––, 133 S.Ct. 1521—which the Court also decides today—have standing to appeal. It is remarkable that the Court has simultaneously decided that the United States, which “receive[d] all that [it] ha[d] sought” below, Deposit Guaranty Nat. Bank v. Roper, 445 U.S. 326, 333, 100 S.Ct. 1166, 63 L.Ed.2d 427 (1980), is a proper petitioner in this case but that the intervenors in Hollingsworth, who represent the party that lost in the lower court, are not. In my view, both the Hollingsworth intervenors and BLAG have standing.1

1

Our precedents make clear that, in order to support our

jurisdiction, BLAG must demonstrate that it had Article

III standing in its own right, quite apart from its status

as an intervenor. See Diamond v. Charles, 476 U.S. 54,

68, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986) (“Although

intervenors are considered parties entitled, among other

things, to seek review by this Court, an intervenor’s

right to continue a suit in the absence of the party on

whose side intervention was permitted is contingent

upon a showing by the intervenor that he fulfills the

requirements of Art. III” (citation omitted)); Arizonans

for Official English v. Arizona, 520 U.S. 43, 64, 117

S.Ct. 1055, 137 L.Ed.2d 170 (1997) (“Standing to

defend on appeal in the place of an original defendant,

no less than standing to sue, demands that the litigant

possess a direct stake in the outcome” (internal

quotation marks omitted)); id., at 65, 117 S.Ct. 1055

(“An intervenor cannot step into the shoes of the

original party unless the intervenor independently

fulfills the requirements of Article III” (internal

quotation marks omitted)).

A party invoking the Court’s authority has a sufficient stake to permit it to appeal when it has “ ‘suffered an injury in fact’ that is caused by ‘the conduct complained of’ and that ‘will be redressed by a favorable decision.’ ”

Camreta v. Greene, 563 U.S. ––––, ––––, 131 S.Ct. 2020, 2028, 179 L.Ed.2d 1118 (2011) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). In the present case, the House of Representatives, which has authorized BLAG to represent its interests in this matter,2 suffered just such an injury.

2

H. Res. 5, 113th Cong., 1st Sess., § 4(a)(1)(B) (2013)

(“[BLAG] continues to speak for, and articulates the

institutional position of, the House in all litigation

matters in which it appears, including in Windsor v.

United States”).

In INS v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983), the Court held that the two Houses of Congress were “proper parties” to file a petition in defense of the constitutionality of the one-house veto statute, id., at 930, n. 5, 103 S.Ct. 2764 (internal quotation marks omitted). Accordingly, the Court granted and decided petitions by both the Senate and the House, in addition to the Executive’s petition. Id., at 919, n. *, 103 S.Ct. 2764. That the two Houses had standing to petition is not surprising: The Court of Appeals’ decision in Chadha, by holding the one-house veto to be unconstitutional, had limited Congress’ power to legislate. In discussing Article III standing, the Court suggested that Congress suffered a similar injury whenever federal legislation it had passed was struck down, noting that it had “long held that Congress is the proper party to defend the validity of a statute when an agency of government, as a defendant charged with enforcing the statute, agrees with plaintiffs that the statute *2713 is inapplicable or unconstitutional.” Id., at 940, 103 S.Ct. 2764.
The United States attempts to distinguish Chadha on the ground that it “involved an unusual statute that vested the House and the Senate themselves each with special procedural rights—namely, the right effectively to veto Executive action.” Brief for United States (jurisdiction) 36. But that is a distinction without a difference: just as the Court of Appeals decision that the Chadha Court affirmed impaired Congress’ power by striking down the one-house veto, so the Second Circuit’s decision here impairs Congress’ legislative power by striking down an Act of Congress. The United States has not explained why the fact that the impairment at issue in Chadha was “special” or “procedural” has any relevance to whether Congress suffered an injury. Indeed, because legislating is Congress’ central function, any impairment of that function is a more grievous injury than the impairment of
25

U.S. v. Windsor, 133 S.Ct. 2675 (2013)
a procedural add-on.
The Court’s decision in Coleman v. Miller, 307 U.S. 433, 59 S.Ct. 972, 83 L.Ed. 1385 (1939), bolsters this conclusion. In Coleman, we held that a group of state senators had standing to challenge a lower court decision approving the procedures used to ratify an amendment to the Federal Constitution. We reasoned that the senators’ votes—which would otherwise have carried the day—were nullified by that action. See id., at 438, 59 S.Ct. 972 (“Here, the plaintiffs include twenty senators, whose votes against ratification have been overridden and virtually held for naught although if they are right in their contentions their votes would have been sufficient to defeat ratification. We think that these senators have a plain, direct and adequate interest in maintaining the effectiveness of their votes”); id., at 446, 59 S.Ct. 972 (“[W]e find no departure from principle in recognizing in the instant case that at least the twenty senators whose votes, if their contention were sustained, would have been sufficient to defeat the resolution ratifying the proposed constitutional amendment, have an interest in the controversy which, treated by the state court as a basis for entertaining and deciding the federal questions, is sufficient to give the Court jurisdiction to review that decision”). By striking down § 3 of DOMA as unconstitutional, the Second Circuit effectively “held for naught” an Act of Congress. Just as the state-senator-petitioners in Coleman were necessary parties to the amendment’s ratification, the House of Representatives was a necessary party to DOMA’s passage; indeed, the House’s vote would have been sufficient to prevent DOMA’s repeal if the Court had not chosen to execute that repeal judicially.
Both the United States and the Court-appointed amicus err in arguing that Raines v. Byrd, 521 U.S. 811, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997), is to the contrary. In that case, the Court held that Members of Congress who had voted “nay” to the Line Item Veto Act did not have standing to challenge that statute in federal court. Raines is inapposite for two reasons. First, Raines dealt with individual Members of Congress and specifically pointed to the individual Members’ lack of institutional endorsement as a sign of their standing problem: “We attach some importance to the fact that appellees have not been authorized to represent their respective Houses of Congress in this action, and indeed both Houses actively oppose their suit.” Id., at 829, 117 S.Ct. 2312; see also ibid., n. 10 (citing cases to the effect that “members of collegial bodies do not have standing to perfect an appeal the body itself has declined to take” (internal quotation

marks omitted)).
*2714 Second, the Members in Raines—unlike the state senators in Coleman—were not the pivotal figures whose votes would have caused the Act to fail absent some challenged action. Indeed, it is telling that Raines characterized Coleman as standing “for the proposition that legislators whose votes would have been sufficient to defeat (or enact) a specific legislative Act have standing to sue if that legislative action goes into effect (or does not go into effect), on the ground that their votes have been completely nullified.” 521 U.S., at 823, 117 S.Ct. 2312. Here, by contrast, passage by the House was needed for DOMA to become law. U.S. Const., Art. I, § 7 (bicameralism and presentment requirements for legislation).
I appreciate the argument that the Constitution confers on the President alone the authority to defend federal law in litigation, but in my view, as I have explained, that argument is contrary to the Court’s holding in Chadha, and it is certainly contrary to the Chadha Court’s endorsement of the principle that “Congress is the proper party to defend the validity of a statute” when the Executive refuses to do so on constitutional grounds. 462 U.S., at 940, 103 S.Ct. 2764. See also 2 U.S.C. § 288h(7) (Senate Legal Counsel shall defend the constitutionality of Acts of Congress when placed in issue).3 Accordingly, in the narrow category of cases in which a court strikes down an Act of Congress and the Executive declines to defend the Act, Congress both has standing to defend the undefended statute and is a proper party to do so.

3

Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d

659 (1976), is not to the contrary. The Court’s

statements there concerned enforcement, not defense.

II
Windsor and the United States argue that § 3 of DOMA violates the equal protection principles that the Court has found in the Fifth Amendment’s Due Process Clause. See Brief for Respondent Windsor (merits) 17–62; Brief for United States (merits) 16–54; cf. Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954). The Court rests its holding on related arguments. See ante, at 2694 – 2695.
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U.S. v. Windsor, 133 S.Ct. 2675 (2013)

Same-sex marriage presents a highly emotional and important question of public policy—but not a difficult question of constitutional law. The Constitution does not guarantee the right to enter into a same-sex marriage. Indeed, no provision of the Constitution speaks to the issue.
The Court has sometimes found the Due Process Clauses to have a substantive component that guarantees liberties beyond the absence of physical restraint. And the Court’s holding that “DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution,” ante, at 2695, suggests that substantive due process may partially underlie the Court’s decision today. But it is well established that any “substantive” component to the Due Process Clause protects only “those fundamental rights and liberties which are, objectively, ‘deeply rooted in this Nation’s history and tradition,’ ” Washington v. Glucksberg, 521 U.S. 702, 720–721, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997); Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 78 L.Ed. 674 (1934) (referring to fundamental rights as those that are so “rooted in the traditions and conscience of our people as to be ranked as fundamental”), as well as “ ‘implicit in the concept of ordered liberty,’ such that ‘neither liberty nor justice would exist if they were sacrificed.’ ” Glucksberg, supra, at 721, 117 S.Ct. 2258 (quoting Palko v. Connecticut, *2715 302 U.S. 319, 325–326, 58 S.Ct. 149, 82 L.Ed. 288 (1937)).
It is beyond dispute that the right to same-sex marriage is not deeply rooted in this Nation’s history and tradition. In this country, no State permitted same-sex marriage until the Massachusetts Supreme Judicial Court held in 2003 that limiting marriage to opposite-sex couples violated the State Constitution. See Goodridge v. Department of Public Health, 440 Mass. 309, 798 N.E.2d 941. Nor is the right to same-sex marriage deeply rooted in the traditions of other nations. No country allowed same-sex couples to marry until the Netherlands did so in 2000.4

4

Curry–Sumner, A Patchwork of Partnerships:

Comparative Overview of Registration Schemes in

Europe, in Legal Recognition of Same–Sex

Partnerships 71, 72 (K. Boele–Woelki & A. Fuchs eds.,

rev. 2d ed., 2012).

What Windsor and the United States seek, therefore, is not the protection of a deeply rooted right but the recognition of a very new right, and they seek this

innovation not from a legislative body elected by the people, but from unelected judges. Faced with such a request, judges have cause for both caution and humility.
The family is an ancient and universal human institution. Family structure reflects the characteristics of a civilization, and changes in family structure and in the popular understanding of marriage and the family can have profound effects. Past changes in the understanding of marriage—for example, the gradual ascendance of the idea that romantic love is a prerequisite to marriage—have had far-reaching consequences. But the process by which such consequences come about is complex, involving the interaction of numerous factors, and tends to occur over an extended period of time.
We can expect something similar to take place if same-sex marriage becomes widely accepted. The long-term consequences of this change are not now known and are unlikely to be ascertainable for some time to come.5 There are those who think that allowing same-sex marriage will seriously undermine the institution of marriage. See, e.g., S. Girgis, R. Anderson, & R. George, What is Marriage? Man and Woman: A Defense 53–58 (2012); Finnis, Marriage: A Basic and Exigent Good, 91 The Monist 388, 398 (2008).6 Others think *2716 that recognition of same-sex marriage will fortify a now-shaky institution. See, e.g., A. Sullivan, Virtually Normal: An Argument About Homosexuality 202–203 (1996); J. Rauch, Gay Marriage: Why It Is Good for Gays, Good for Straights, and Good for America 94 (2004).

5

As sociologists have documented, it sometimes takes

decades to document the effects of social changes—like

the sharp rise in divorce rates following the advent of

no-fault divorce—on children and society. See

generally J. Wallerstein, J. Lewis, & S. Blakeslee, The

Unexpected Legacy of Divorce: The 25 Year Landmark

Study (2000).

6

Among those holding that position, some deplore and

some applaud this predicted development. Compare,

e.g., Wardle, “Multiply and Replenish”: Considering

Same–Sex Marriage in Light of State Interests in

Marital Procreation, 24 Harv. J.L. & Pub. Pol’y 771,

799 (2001) ( “Culturally, the legalization of same-sex

marriage would send a message that would undermine

the social boundaries relating to marriage and family

relations. The confusion of social roles linked with

marriage and parenting would be tremendous, and the

message of ‘anything goes’ in the way of sexual

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U.S. v. Windsor, 133 S.Ct. 2675 (2013)
behavior, procreation, and parenthood would wreak its greatest havoc among groups of vulnerable individuals who most need the encouragement of bright line laws and clear social mores concerning procreative responsibility”) and Gallagher, (How) Will Gay Marriage Weaken Marriage as a Social Institution: A Reply to Andrew Koppelman, 2 U. St. Thomas L.J. 33, 58 (2005) (“If the idea of marriage really does matter—if society really does need a social institution that manages opposite-sex attractions in the interests of children and society—then taking an already weakened social institution, subjecting it to radical new redefinitions, and hoping that there are no consequences is probably neither a wise nor a compassionate idea”), with Brownworth, Something Borrowed, Something Blue: Is Marriage Right for Queers? in I Do/I Don’t: Queers on Marriage 53, 58–59 (G. Wharton & I. Phillips eds. 2004) (Former President George W. “Bush is correct ... when he states that allowing same-sex couples to marry will weaken the institution of marriage. It most certainly will do so, and that will make marriage a far better concept than it previously has been”) and Willis, Can Marriage Be Saved? A Forum, The Nation, p. 16 (2004) (celebrating the fact that “conferring the legitimacy of marriage on homosexual relations will introduce an implicit revolt against the institution into its very heart”).
At present, no one—including social scientists, philosophers, and historians—can predict with any certainty what the long-term ramifications of widespread acceptance of same-sex marriage will be. And judges are certainly not equipped to make such an assessment. The Members of this Court have the authority and the responsibility to interpret and apply the Constitution. Thus, if the Constitution contained a provision guaranteeing the right to marry a person of the same sex, it would be our duty to enforce that right. But the Constitution simply does not speak to the issue of same-sex marriage. In our system of government, ultimate sovereignty rests with the people, and the people have the right to control their own destiny. Any change on a question so fundamental should be made by the people through their elected officials.
III
Perhaps because they cannot show that same-sex marriage is a fundamental right under our Constitution, Windsor and the United States couch their arguments in equal protection terms. They argue that § 3 of DOMA

discriminates on the basis of sexual orientation, that classifications based on sexual orientation should trigger a form of “heightened” scrutiny, and that § 3 cannot survive such scrutiny. They further maintain that the governmental interests that § 3 purports to serve are not sufficiently important and that it has not been adequately shown that § 3 serves those interests very well. The Court’s holding, too, seems to rest on “the equal protection guarantee of the Fourteenth Amendment,” ante, at 2695 —although the Court is careful not to adopt most of Windsor’s and the United States’ argument.
In my view, the approach that Windsor and the United States advocate is misguided. Our equal protection framework, upon which Windsor and the United States rely, is a judicial construct that provides a useful mechanism for analyzing a certain universe of equal protection cases. But that framework is ill suited for use in evaluating the constitutionality of laws based on the traditional understanding of marriage, which fundamentally turn on what marriage is.
Underlying our equal protection jurisprudence is the central notion that “[a] classification ‘must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.’ ” Reed v. Reed, 404 U.S. 71, 76, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971) (quoting F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 64 L.Ed. 989 (1920)). The modern tiers of scrutiny—on which Windsor and the United States rely so heavily—are a heuristic to help judges determine when classifications have that “fair and substantial relation to the object of the legislation.” Reed, supra, at 76, 92 S.Ct. 251.
*2717 So, for example, those classifications subject to strict scrutiny—i.e., classifications that must be “narrowly tailored” to achieve a “compelling” government interest, Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U.S. 701, 720, 127 S.Ct. 2738, 168 L.Ed.2d 508 (2007) (internal quotation marks omitted)—are those that are “so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy.” Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 440, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985); cf. id., at 452–453, 105 S.Ct. 3249 (Stevens, J., concurring) (“It would be utterly irrational to limit the franchise on the basis of height or weight; it is equally invalid to limit it on the basis of skin color. None
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U.S. v. Windsor, 133 S.Ct. 2675 (2013)
of these attributes has any bearing at all on the citizen’s willingness or ability to exercise that civil right”).
In contrast, those characteristics subject to so-called intermediate scrutiny—i.e., those classifications that must be “ ‘substantially related’ ” to the achievement of “important governmental objective[s],” United States v. Virginia, 518 U.S. 515, 524, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996); id., at 567, 116 S.Ct. 2264 (SCALIA, J., dissenting)—are those that are sometimes relevant considerations to be taken into account by legislators, but “generally provid[e] no sensible ground for different treatment,” Cleburne, supra, at 440, 105 S.Ct. 3249. For example, the Court has held that statutory rape laws that criminalize sexual intercourse with a woman under the age of 18 years, but place no similar liability on partners of underage men, are grounded in the very real distinction that “young men and young women are not similarly situated with respect to the problems and the risks of sexual intercourse.” Michael M. v. Superior Court, Sonoma Cty., 450 U.S. 464, 471, 101 S.Ct. 1200, 67 L.Ed.2d 437 (1981) (plurality opinion). The plurality reasoned that “[o]nly women may become pregnant, and they suffer disproportionately the profound physical, emotional, and psychological consequences of sexual activity.” Ibid. In other contexts, however, the Court has found that classifications based on gender are “arbitrary,” Reed, supra, at 76, 92 S.Ct. 251, and based on “outmoded notions of the relative capabilities of men and women,” Cleburne, supra, at 441, 105 S.Ct. 3249, as when a State provides that a man must always be preferred to an equally qualified woman when both seek to administer the estate of a deceased party, see Reed, supra, at 76–77, 92 S.Ct. 251.
Finally, so-called rational-basis review applies to classifications based on “distinguishing characteristics relevant to interests the State has the authority to implement.” Cleburne, supra, at 441, 105 S.Ct. 3249. We have long recognized that “the equal protection of the laws must coexist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantages to various groups or persons.” Romer v. Evans, 517 U.S. 620, 631, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996). As a result, in rational-basis cases, where the court does not view the classification at issue as “inherently suspect,” Adarand Constructors, Inc. v. Penã, 515 U.S. 200, 218, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995) (internal quotation marks omitted), “the courts have been very reluctant, as they should be in our federal system and with our respect for the separation of powers, to closely scrutinize legislative choices as to whether,

how, and to what extent those interests should be pursued.” Cleburne, supra, at 441–442, 105 S.Ct. 3249.
In asking the Court to determine that § 3 of DOMA is subject to and violates heightened scrutiny, Windsor and the *2718 United States thus ask us to rule that the presence of two members of the opposite sex is as rationally related to marriage as white skin is to voting or a Y-chromosome is to the ability to administer an estate. That is a striking request and one that unelected judges should pause before granting. Acceptance of the argument would cast all those who cling to traditional beliefs about the nature of marriage in the role of bigots or superstitious fools.
By asking the Court to strike down DOMA as not satisfying some form of heightened scrutiny, Windsor and the United States are really seeking to have the Court resolve a debate between two competing views of marriage.
The first and older view, which I will call the “traditional” or “conjugal” view, sees marriage as an intrinsically opposite-sex institution. BLAG notes that virtually every culture, including many not influenced by the Abrahamic religions, has limited marriage to people of the opposite sex. Brief for Respondent BLAG (merits) 2 (citing Hernandez v. Robles, 7 N.Y.3d 338, 361, 821 N.Y.S.2d 770, 855 N.E.2d 1, 8 (2006) (“Until a few decades ago, it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex”)). And BLAG attempts to explain this phenomenon by arguing that the institution of marriage was created for the purpose of channeling heterosexual intercourse into a structure that supports child rearing. Brief for Respondent BLAG 44–46, 49. Others explain the basis for the institution in more philosophical terms. They argue that marriage is essentially the solemnizing of a comprehensive, exclusive, permanent union that is intrinsically ordered to producing new life, even if it does not always do so. See, e.g., Girgis, Anderson, & George, What is Marriage? Man and Woman: A Defense, at 23–28. While modern cultural changes have weakened the link between marriage and procreation in the popular mind, there is no doubt that, throughout human history and across many cultures, marriage has been viewed as an exclusively opposite-sex institution and as one inextricably linked to procreation and biological kinship.
The other, newer view is what I will call the “consent-based” vision of marriage, a vision that
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U.S. v. Windsor, 133 S.Ct. 2675 (2013)

primarily defines marriage as the solemnization of mutual commitment—marked by strong emotional attachment and sexual attraction—between two persons. At least as it applies to heterosexual couples, this view of marriage now plays a very prominent role in the popular understanding of the institution. Indeed, our popular culture is infused with this understanding of marriage. Proponents of same-sex marriage argue that because gender differentiation is not relevant to this vision, the exclusion of same-sex couples from the institution of marriage is rank discrimination.
The Constitution does not codify either of these views of marriage (although I suspect it would have been hard at the time of the adoption of the Constitution or the Fifth Amendment to find Americans who did not take the traditional view for granted). The silence of the Constitution on this question should be enough to end the matter as far as the judiciary is concerned. Yet, Windsor and the United States implicitly ask us to endorse the consent-based view of marriage and to reject the traditional view, thereby arrogating to ourselves the power to decide a question that philosophers, historians, social scientists, and theologians are better qualified to explore.7 Because our constitutional *2719 order assigns the resolution of questions of this nature to the people, I would not presume to enshrine either vision of marriage in our constitutional jurisprudence.

7

The degree to which this question is intractable to

typical judicial processes of decisionmaking was

highlighted by the trial in Hollingsworth v. Perry, 558

U.S. 183, 130 S.Ct. 705, 175 L.Ed.2d 657 (2010). In

that case, the trial judge, after receiving testimony from

some expert witnesses, purported to make “findings of

fact” on such questions as why marriage came to be,

Perry v. Schwarzenegger, 704 F.Supp.2d 921, 958

(N.D.Cal.2010) (finding of fact no. 27) (“Marriage

between a man and a woman was traditionally

organized based on presumptions of division of labor

along gender lines. Men were seen as suited for certain

types of work and women for others. Women were seen

as suited to raise children and men were seen as suited

to provide for the family”), what marriage is, id., at 961

(finding of fact no. 34) (“Marriage is the state

recognition and approval of a couple’s choice to live

with each other, to remain committed to one another

and to form a household based on their own feelings

about one another and to join in an economic

partnership and support one another and any

dependents”), and the effect legalizing same-sex

marriage would have on opposite-sex marriage, id., at

972 (finding of fact no. 55) (“Permitting same-sex

couples to marry will not affect the number of

opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages”).
At times, the trial reached the heights of parody, as when the trial judge questioned his ability to take into account the views of great thinkers of the past because they were unavailable to testify in person in his courtroom. See 13 Tr. in No. C 09–2292 VRW (ND Cal.), pp. 3038–3039. And, if this spectacle were not enough, some professors of constitutional law have argued that we are bound to accept the trial judge’s findings—including those on major philosophical questions and predictions about the future—unless they are “clearly erroneous.” See Brief for Constitutional Law and Civil Procedure Professors as Amici Curiae in Hollingsworth v. Perry, O.T. 2012, No. 12–144, pp. 2–3 (“[T]he district court’s factual findings are compelling and should be given significant weight”); id., at 25 (“Under any standard of review, this Court should credit and adopt the trial court’s findings because they result from rigorous and exacting application of the Federal Rules of Evidence, and are supported by reliable research and by the unanimous consensus of mainstream social science experts”). Only an arrogant legal culture that has lost all appreciation of its own limitations could take such a suggestion seriously.
Legislatures, however, have little choice but to decide between the two views. We have long made clear that neither the political branches of the Federal Government nor state governments are required to be neutral between competing visions of the good, provided that the vision of the good that they adopt is not countermanded by the Constitution. See, e.g., Rust v. Sullivan, 500 U.S. 173, 192, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991) (“[T]he government ‘may make a value judgment favoring childbirth over abortion’ ” (quoting Maher v. Roe, 432 U.S. 464, 474, 97 S.Ct. 2376, 53 L.Ed.2d 484 (1977))). Accordingly, both Congress and the States are entitled to enact laws recognizing either of the two understandings of marriage. And given the size of government and the degree to which it now regulates daily life, it seems unlikely that either Congress or the States could maintain complete neutrality even if they tried assiduously to do so.
Rather than fully embracing the arguments made by Windsor and the United States, the Court strikes down § 3 of DOMA as a classification not properly supported by its objectives. The Court reaches this conclusion in part because it believes that § 3 encroaches upon the States’ sovereign prerogative to define marriage. See ante, at 2693 (“As the title and dynamics of the bill indicate, its
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U.S. v. Windsor, 133 S.Ct. 2675 (2013)
purpose is to discourage enactment of state same-sex marriage laws and to restrict the freedom and choice of couples married under those *2720 laws if they are enacted. The congressional goal was ‘to put a thumb on the scales and influence a state’s decision as to how to shape its own marriage laws’ ” (quoting Massachusetts v. United States Dept. of Health and Human Servs., 682 F.3d 1, 12–13 (C.A.1 2012))). Indeed, the Court’s ultimate conclusion is that DOMA falls afoul of the Fifth Amendment because it “singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty” and “imposes a disability on the class by refusing to acknowledge a status the State finds to be dignified and proper.” Ante, at 2695 – 2696 (emphasis added).
To the extent that the Court takes the position that the question of same-sex marriage should be resolved primarily at the state level, I wholeheartedly agree. I hope that the Court will ultimately permit the people of each State to decide this question for themselves. Unless the Court is willing to allow this to occur, the whiffs of federalism in the today’s opinion of the Court will soon be scattered to the wind.

In any event, § 3 of DOMA, in my view, does not encroach on the prerogatives of the States, assuming of course that the many federal statutes affected by DOMA have not already done so. Section 3 does not prevent any State from recognizing same-sex marriage or from extending to same-sex couples any right, privilege, benefit, or obligation stemming from state law. All that § 3 does is to define a class of persons to whom federal law extends certain special benefits and upon whom federal law imposes certain special burdens. In these provisions, Congress used marital status as a way of defining this class—in part, I assume, because it viewed marriage as a valuable institution to be fostered and in part because it viewed married couples as comprising a unique type of economic unit that merits special regulatory treatment. Assuming that Congress has the power under the Constitution to enact the laws affected by § 3, Congress has the power to define the category of persons to whom those laws apply.
* * *
For these reasons, I would hold that § 3 of DOMA does not violate the Fifth Amendment. I respectfully dissent.

31