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UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Thurgood Marshall U.S. Courthouse 40 Foley Square, New York, NY 10007 Telephone: 212-857-8500
MOTION INFORMATION STATEMENT Docket Number(s): Motion for:
12-2435

Caption [use short title]

To Dismiss Appeal No. 12-2435

Set forth below precise, complete statement of relief sought:

The House seeks an order dismissing appeal No. 12-2435, filed by the Department of Justice on behalf

Windsor v. United States

of defendant United States. The United States prevailed below and as an unaggrieved party,
lacks standing to prosecute its appeal.

MOVING PARTY: The Bipartisan Legal Advisory Group of the U.S. House of Representatives OPPOSING PARTY: 9 Plaintiff 9 Defendant 9 Appellant/Petitioner 9 Appellee/Respondent MOVING ATTORNEY:
Bancroft PLLC 1919 M Street, N.W., Suite 470 Washington, D.C. 20036 202-234-0090 pclement@bancroftpllc.com Paul D. Clement

United State of America

OPPOSING ATTORNEY: August E. Flentje [name of attorney, with firm, address, phone number and e-mail]
U.S. Department of Justice 950 Pennsylvania Avenue, N.W., Room 3613 Washington, D.C. 20530 202-514-1278 august.flentje@usdoj.gov

Court-Judge/Agency appealed from: Please check appropriate boxes:

Hon. Barbara S. Jones/ S.D.N.Y.

Has movant notified opposing counsel (required by Local Rule 27.1): Yes 9 No (explain): 9 Opposing counsels position on motion: 9 Unopposed Opposed 9 Dont Know 9 Does opposing counsel intend to file a response: 9 Yes 9 No 9 Dont Know Is oral argument on motion requested? Has argument date of appeal been set?

FOR EMERGENCY MOTIONS, MOTIONS FOR STAYS AND INJUNCTIONS PENDING APPEAL: 9 Yes 9 No Has request for relief been made below? Has this relief been previously sought in this Court? 9 Yes 9 No Requested return date and explanation of emergency:

9 Yes

No (requests for oral argument will not necessarily be granted) 9

Currently set for week of September 24, 2012, but scheduling requests are outstanding Yes 9 No If yes, enter date:__________________________________________________________ 9

Signature of Moving Attorney: 07/19/2012 ___________________________________Date: ___________________ /s/ Paul D. Clement

9 Service by: CM/ECF

9 Other [Attach proof of service]

ORDER IT IS HEREBY ORDERED THAT the motion is GRANTED DENIED. FOR THE COURT: CATHERINE OHAGAN WOLFE, Clerk of Court Date: _____________________________________________ By: ________________________________________________

Form T-1080 (rev. 7-12)

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Nos. 12-2335 & 12-2435 ____________________ UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ____________________ EDITH SCHLAIN WINDSOR, Plaintiff-Appellee, v. UNITED STATES OF AMERICA, Defendant, BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES, Intervenor-Defendant-Appellant. EDITH SCHLAIN WINDSOR, Plaintiff-Appellee, v. UNITED STATES OF AMERICA, Defendant-Appellant, BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES, Intervenor-Defendant. ____________________ MOTION OF THE BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES TO DISMISS APPEAL NO. 12-2435

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ............................................................... ii INTRODUCTION ................................................................................. 1 BACKGROUND ................................................................................... 1 DOJ Carries Out Its Constitutional Responsibility ...................... 2 DOJ Abandons Its Constitutional Responsibility ......................... 4 This Case Works Its Way Through the District Court and to This Court ................................................................................. 6 ARGUMENT ......................................................................................... 9 I. II. DOJ Prevailed Below and, Therefore, Lacks Standing to Appeal.................................................................................. 9 DOJs Appeal Is Superfluous and Cannot Be Supported by Interests DOJ Has Disowned and Is Working to Frustrate ................................................................................... 13

CONCLUSION...................................................................................... 18 CERTIFICATE OF SERVICE

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TABLE OF AUTHORITIES

Cases Ameron, Inc. v. U.S. Army Corps of Engrs, 787 F.2d 875 (3d Cir. 1986) ......................................................... 16 Ashley v. Boehringer Ingelheim Pharm., 7 F.3d 20 (2d Cir. 1993) ............................................................... 10 Barnes v. Carmen, 582 F. Supp. 163 (D.D.C. 1984)................................................... 16 Bishop v. United States, No. 4:04-cv-00848 (N.D. Okla.)................................................... 4, 8 Bldg. & Constr. Trades Dept v. Reich, 40 F.3d 1275 (D.C. Cir. 1994) ...................................................... 16 Bowen v. Kendrick, 483 U.S. 1304 (1987) ................................................................... 11 Bryant v. Yellen, 447 U.S. 352 (1980)...................................................................... 15 Chadha v. INS, No. 77-1702 (9th Cir.) .................................................................. 14 Cheng Fan Kwok v. INS, 392 U.S. 206 (1968) ..................................................................... 14 Cozen OConnor, P.C. v. Tobits, No. 2:11-cv-00045 (E.D. Pa.) ....................................................... 8 Deposit Guar. Natl Bank v. Roper, 445 U.S. 326 (1980)...................................................................... 9, 10, 11 Diamond v. Charles, 476 U.S. 54 (1986)........................................................................ 16 Dragovich v. U.S. Dept of the Treasury, No. 4:10-cv-01564 (N.D. Cal.) ..................................................... 3, 8
ii

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Forney v. Apfel, 524 U.S. 266 (1998)...................................................................... 9 Golinski v. OPM, No. 3:10-cv-00257 (N.D. Cal.) ..................................................... 3, 8 Golinski v. OPM, Nos. 12-15388 & 12-15409 (9th Cir.) .......................................... 5, 11 Hermes Intl v. Lederer de Paris Fifth Ave., Inc., 219 F.3d 104 (2d Cir. 2000) ......................................................... 10-11 Hunt v. Ake, No. 8:04-cv-01852 (M.D. Fla.)..................................................... 3 In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004)..................................... 3 In re Koerner, 800 F.2d 1358 (5th Cir. 1986) ...................................................... 16 INS v. Chadha, 462 U.S. 919 (1983)...................................................................... passim K & A Radiologic Tech. Servs., Inc. v. Comm'r of Dep't of Health of N.Y., 189 F.3d 273 (2d Cir. 1999) ......................................................... 10 Keach v. Cnty. of Schenectady, 593 F.3d 218 (2d Cir. 2010) ......................................................... 10 Lear Siegler, Inc. v. Lehman, 842 F.2d 1102 (9th Cir. 1988) ...................................................... 17 Lui v. Holder, No. 2:11-cv-01267 (C.D. Cal.) ..................................................... 8 Massachusetts v. U.S. Dept of HHS, Nos. 10-2204, 10-2207, & 10-2214 (1st Cir.) .............................. 3, 7-8 New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 1345 (1977) ................................................................... 11

iii

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Newdow v. U.S. Congress, 313 F.3d 495 (9th Cir. 2002) ........................................................ 16, 17 NL Indus. Inc. v. Secy of Interior, 777 F.2d 433 (9th Cir. 1985) ........................................................ 15 North v. Walsh, 656 F. Supp. 414 (D.D.C. 1987)................................................... 16 Parr v. United States, 351 U.S. 513 (1956)...................................................................... 9 Pedersen v. OPM, No. 3:10-cv-01750 (D. Conn.)...................................................... 8 Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012) ...................................................... 15 Pub. Serv. Commn of Mo. v. Brashear Freight Lines, Inc., 306 U.S. 204 (1939)...................................................................... 10 Revelis v. Napolitano, No. 1:11-cv-01991 (N.D. Ill.) ....................................................... 8 Schulz v. Williams, 44 F.3d 48 (2d Cir. 1994) ............................................................. 15 Shatah v. Shearson/Am. Express, Inc., 873 F.2d 550 (2d Cir. 1989) ......................................................... 10 Sheldon v. PHH Corp., 135 F.3d 848 (2d Cir. 1998) ......................................................... 10 Smelt v. Cnty. of Orange, 374 F. Supp. 2d 861 (C.D. Cal. 2005) .......................................... 3 St. Paul Fire & Marine Ins. Co. v. Universal Builders Supply, 409 F.3d 73 (2d Cir. 2005) ........................................................... 10 Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370 (1987)...................................................................... 8

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Sullivan v. Bush, No. 1:04-cv-21118 (S.D. Fla.) ...................................................... 3 Torres-Barragan v. Holder, No. 10-55768 (9th Cir.) ................................................................ 5 Torres-Barragan v. Holder, No. 2:09-cv-08564 (C.D. Cal.) ..................................................... 3-4, 4 Trust for Certificate Holders of Merrill Lynch Mortg. Investors, Inc. v. Love Funding Corp., 496 F.3d 171 (2d Cir. 2007) ......................................................... 10 United States v. Lovett, 328 U.S. 303 (1946)...................................................................... 14 Walters v. Natl Assn of Radiation Survivors, 468 U.S. 1323 (1984) ................................................................... 11 Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005) ....................................... 3 Windsor v. United States, No. 1:10-cv-08435 (S.D.N.Y.) ..................................................... passim Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)...................................................................... 17

Constitution and Statutes U.S. Const. art. II, 3 ............................................................................. 1 1 U.S.C. 7 ............................................................................................. 2 28 U.S.C. 1252 ..................................................................................... 13 28 U.S.C. 1291 ..................................................................................... 10, 13 Second Cir. L.R. 27.1.............................................................................. 1

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Other Authorities 142 Cong. Rec. ........................................................................................ 2 32 Weekly Comp. Pres. Doc. .................................................................. 2 H.R. Rep. No. 104-664 (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) ...................................................... 2 Mem. for the Fed. Respt, U.S. House of Representatives v. INS, Nos. 80-2170 & 80-2171, 1981 U.S. S. Ct. Briefs LEXIS 1423 (Aug. 28, 1981) .................................................................... 15 Press Release, Speaker of the House John Boehner, House Will Ensure DOMA Constitutionality Is Determined by the Court (Mar. 9, 2011) ............................................................................... 5-6 Lois J. Scali, Prediction-Making in the Supreme Court: The Granting of Stays by Individual Justices, 32 UCLA L. Rev. 1020 (1985) ................................................................................... 12

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INTRODUCTION The Bipartisan Legal Advisory Group of the U.S. House of Representatives (House) respectfully moves for an order dismissing No. 12-2435, the appeal filed by the Department of Justice (DOJ) on behalf of defendant United States (Executive Branch). Although the Executive Branch nominally was a defendant in the district court, it actually supported the plaintiff in the district court and, along with the plaintiff, prevailed below. Accordingly, the Executive Branchs appeal should be dismissed because that appeal is not necessary to enable the House the intervenor-defendant below after DOJ changed sides to prosecute the Houses earlier-filed appeal (No. 12-2335), and the Executive Branchs appeal is, therefore, superfluous. Moreover, because the Executive Branch prevailed below, it is not aggrieved. Thus, the House has standing to appeal here, and the Executive Branch does not. Pursuant to Local Rule 27.1(b), counsel for the House has notified opposing counsel of its intent to file this motion. DOJ opposes the relief sought and plans to file a response. Plaintiff-appellee takes no position as to the relief sought in this motion. BACKGROUND As the Court is aware, it is the constitutional responsibility of the President to take Care that the Laws be faithfully executed, U.S. Const. art. II, 3, and of
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DOJ in furtherance of that responsibility to defend the constitutionality of dulyenacted federal laws when they are challenged in court. This case, brought by plaintiff Edith Schlain Windsor, concerns the constitutionality of one such dulyenacted federal statute: Section 3 of the Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419 (1996) (DOMA), codified at 1 U.S.C. 7, which defines marriage and spouse for purposes of federal law. DOMA was enacted in 1996 by substantial bipartisan majorities in both houses of Congress, and signed into law by President Clinton. See 142 Cong. Rec. 17095-94 (1996) (House vote 342-67 on H.R. 3396); 142 Cong. Rec. 22467 (1996) (Senate vote 85-14 on S. 1999); 32 Weekly Comp. Pres. Doc. 1891 (Sept. 30, 1996) (bill signed on Sept. 21, 1996). During the Clinton Administration, DOJ three times advised Congress that DOMA was constitutional. See Letters from Andrew Fois, Assistant Atty Gen., to Rep. Canady (May 29, 1996), reprinted in H.R. Rep. No. 104-664, at 33 (1996), reprinted in 1996 U.S.C.C.A.N. 2905 (House Rep.); to Rep. Hyde (May 14, 1996), reprinted in House Rep. at 22-23; and to Sen. Hatch (July 9, 1996), reprinted in Defense of Marriage Act: Hearing on H.R. 3396 Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 104th Cong. 2 (1996). DOJ Carries Out Its Constitutional Responsibility. Prior to 2004, there were no constitutional challenges to DOMA Section 3. However, from 2004-11, DOJ
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repeatedly defended the constitutionality of Section 3 against all constitutional challenges. For example: BUSH ADMINISTRATION Smelt v. Cnty. of Orange, 374 F. Supp. 2d 861 (C.D. Cal. 2005), affd in part and vacated in part, 447 F.3d 673 (9th Cir.) (plaintiffs lacked standing to challenge DOMA Section 3), cert. denied, 549 U.S. 959 (2006); Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005) (constitutional challenges to DOMA dismissed for failure to state claim); Order, Sullivan v. Bush, No. 1:04-cv-21118 (S.D. Fla. Mar. 16, 2005) (ECF No. 68) (granting plaintiffs motion for voluntary dismissal after defendants moved to dismiss); Order, Hunt v. Ake, No. 8:04-cv-01852 (M.D. Fla. Jan. 20, 2005) (ECF No. 35) (constitutional challenges to DOMA Section 3 dismissed for failure to state claim); In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004) (holding that DOMA Section 3 does not violate Fifth Amendment). OBAMA ADMINISTRATION Corrected Br. for the U.S. Dept of Health and Human Servs., Massachusetts v. U.S. Dept of HHS, Nos. 10-2204, 10-2207, & 102214 (1st Cir. Jan. 19, 2011) (ECF No. 5520069); Fed. Defs. . . . Mot. to Dismiss, Dragovich v. U.S. Dept of the Treasury, No. 4:10-cv-01564 (N.D. Cal. July 2, 2010) (ECF No. 25); Mem. in Supp. of Defs. Mot. to Dismiss Pl.s First Am. Compl., Golinski v. OPM, No. 3:10-cv-00257 (N.D. Cal. May 10, 2010) (ECF No. 49); Defs. . . . Mot. to Dismiss, Torres-Barragan v. Holder, No. 2:09-cv-08564
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(C.D. Cal. Mar. 5, 2010) (ECF No. 7); In Chambers Order, Torres-Barragan v. Holder, No. 2:09-cv-08564 (C.D. Cal. Apr. 30, 2010) (ECF No. 24) (DOMA constitutional); Br. in Supp. of Mot. to Dismiss . . . , Bishop v. United States, No. 4:04-cv-00848 (N.D. Okla. Oct. 13, 2009) (ECF No. 138). DOJ Abandons Its Constitutional Responsibility. In February 2011, DOJ abruptly reversed course. The Attorney General publicly notified Congress of the Presidents and his conclusion that DOMA Section 3, as applied to same-sex couples who are legally married under state law, violates the equal protection component of the Fifth Amendment, and their decision that, as a result, DOJ no longer would defend Section 3 in court against equal protection challenges. Letter from Eric H. Holder, Jr., Atty Gen., to the Honorable John A. Boehner, Speaker, U.S. House of Representatives at 1, 5 (Feb. 23, 2011) (Holder Letter), attached as Ex. 1. In so deciding, the Attorney General acknowledged, correctly, that (i) DOJ has a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense, id. at 5; (ii) binding precedents of ten U.S. Circuit Courts of Appeals (actually eleven) had rejected his conclusion that sexual orientation classifications are subject to a heightened standard of scrutiny, and instead had held that rational-basis scrutiny is appropriate for such classifications, id. at 3-4 nn.4-6; and (iii) reasonable argument[s] for
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Section 3s constitutionality may be proffered under th[e] [rational basis] standard, id. at 6. In short, the Attorney General effectively conceded that abandoning the defense of DOMA Section 3 was a sharp departure from past precedent and was not predicated primarily on constitutional or other legal considerations. While DOJ, on a few occasions, has refused to defend the constitutionality of Acts of Congress that, in its view, unconstitutionally restricted or infringed the powers of the Executive Branch or could not be supported by any reasonable argument, DOMA Section 3 plainly is not such a statute, making DOJs actions here, to our knowledge, wholly unprecedented. See Amici Curiae Br. of . . . Edwin Meese III and John Ashcroft, Golinski v. OPM, Nos. 12-15388 & 12-15409 (9th Cir. June 11, 2012) (ECF No. 44), attached as Ex. 2.1 In response, the House determined on March 9, 2011, to defend DOMA Section 3 in civil actions in which the statutes constitutionality has been challenged. See Press Release, Speaker of the House John Boehner, House Will The Holder Letter also said that the President has instructed Executive agencies to continue to comply with Section 3 of DOMA . . . unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the laws constitutionality. Holder Letter at 5. Notwithstanding, the Executive Branch has begun backing away from that promise of continued enforcement, particularly in the immigration context. See, e.g., Proposed Intervenors Reply to Executive Branch Defs. Oppn to Mot. for Denial of Voluntary Dismissal of Appeal at 3-4, Torres-Barragan v. Holder, No. 10-55768 (9th Cir. Mar. 26, 2012) (ECF No. 54).
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Ensure DOMA Constitutionality Is Determined by the Court (Mar. 9, 2011) (House General Counsel has been directed to initiate a legal defense of [DOMA Section 3]), available at http://www.speaker.gov/News/DocumentSingle.aspx?DocumentID=228539.2 This Case Works Its Way Through the District Court and to This Court. Ms. Windsor originally filed suit on November 9, 2010, and then amended her complaint three months later. She sought, among other things, a declaration that DOMA Section 3 is unconstitutional. See Am. Compl. 82-85, Prayers for Relief 1,3, Windsor v. United States, No. 1:10-cv-08435 (S.D.N.Y. Feb. 2, 2011) (ECF No. 9). Following the Attorney Generals public announcement in February 2011, DOJ notified the district court that it no longer would defend the constitutionality of DOMA Section 3 in this case. See Notice . . . at 1, Windsor v. United States, No. 1:10-cv-08435 (S.D.N.Y. Feb. 25, 2011) (ECF No. 10). The district court then invited Congress to intervene, see Order, Windsor v. United States, No. 1:10-cv08435 (S.D.N.Y. March 15, 2011) (ECF No. 11), which the House did. See Unopposed Mot. of the [House] to Intervene for a Limited Purpose, Windsor v.

At present, the House is defending DOMA Section 3 in 13 cases around the country (including this case) four in the federal Circuit Courts (including one in which a decision already has been rendered), eight in federal district courts, and one in the Court of Appeals for Veterans Claims.
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United States, No. 1:10-cv-08435 (S.D.N.Y. Apr. 18, 2011) (ECF No. 12 ); Mem. & Order, Windsor v. United States, No. 1:10-cv-08435 (S.D.N.Y. June 2, 2011) (ECF No. 26) (granting House motion to intervene). In June 2011, Ms. Windsor moved for summary judgment, see Notice of Mot. for Summ. J., Windsor v. United States, No. 1:10-cv-08435 (S.D.N.Y. June 24, 2011) (ECF No. 28), and in August 2011, the House moved to dismiss, see [House]s Motion to Dismiss, Windsor v. United States, No. 1:10-cv-08435 (S.D.N.Y. Aug. 1, 2011) (ECF No. 52). Notwithstanding that the Holder Letter said only that DOJ would not defend DOMA Section 3, DOJ quickly pivoted from that position to the even more extraordinary and constitutionally problematic position of aligning itself with DOMA plaintiffs, including Ms. Windsor, to affirmatively attack Section 3 in court and to accuse the Congress that enacted DOMA many of whose Members still serve of doing so out of animus. Def.[s] . . . Mem. of Law in Resp. to Pl.s Mot. for Summ. J. & [House]s Mot. to Dismiss at 22-23, Windsor v. United States, No. 1:10-cv-08435 (S.D.N.Y. Aug. 19, 2011) (ECF No. 71).3

That would be the very same statute that DOJ (i) had defended a few short months before, see supra pp. 2-3, and (ii) acknowledges is constitutional under the rational basis equal protection standard. See Holder Letter at 6. To date, DOJ has filed substantive briefs in eight other DOMA cases making this same argument. See, e.g., Superseding Br. for the U.S. Dept of HHS, (Continued . . .)
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On June 6, 2012, the district court ruled, without oral argument, that DOMA Section 3 is unconstitutional as applied to Ms. Windsor. See Order, Windsor v. United States, No. 1:10-cv-08435 (S.D.N.Y. June 6, 2012) (ECF No. 93). Two days later, the House filed its notice of appeal, see Notice of Appeal of IntervenorDefendant the [House], Windsor v. United States, No. 1:10-cv-08435 (S.D.N.Y. June 8, 2012) (ECF No. 95), as it was entitled to do by virtue of its status as an intervenor-defendant. See, e.g., Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370, 375-76 (1987) (An intervenor, whether by right or by permission, normally has the right to appeal an adverse final judgment by a trial court.). The Houses appeal was docketed as No. 12-2335.

Massachusetts v. U.S. Dept of HHS, Nos. 10-2204, 10-2207, & 10-2214 (1st Cir. Sept. 22, 2011) (ECF No. 5582082); Mem. in Oppn to [House]s Mot. to Dismiss Pls. Compl., Revelis v. Napolitano, No. 1:11-cv-01991 (N.D. Ill. Apr. 9, 2012) (ECF No. 50); Fed. Defs. Br. in Partial Supp. of Pls. Mot. for Summ. J., Dragovich v. U.S. Dept of Treasury, No. 4:10-cv-01564 (N.D. Cal. Jan. 19, 2012) (ECF No. 108); Br. of [DOJ] Regarding the Constitutionality of Section 3 of DOMA, Cozen OConnor, P.C. v. Tobits, No. 2:11-cv-00045 (E.D. Pa. Dec. 30, 2011) (ECF No. 97); Resp. of Defs. [DOJ] to [House]s Cross-Mot. for Summ. J., Bishop v. United States, No. 4:04-cv-00848 (N.D. Okla. Nov. 18, 2011) (ECF No. 225); Defs. Mem. of Law in Resp. to Pls. Mot. for Summ. J. & [Houses] Mot. to Dismiss, Pedersen v. OPM, No. 3:10-cv-01750 (D. Conn. Sept. 14, 2011) (ECF No. 98); Defs. Oppn to [House]s Mot. to Dismiss, Lui v. Holder, No. 2:11-cv01267 (C.D. Cal. Sept. 2, 2011) (ECF No. 28); Defs. Br. in Oppn to Mots. to Dismiss at 3-23, Golinski v. OPM, No. 3:10-cv-00257 (N.D. Cal. July 1, 2011) (ECF No. 145) (arguing in all of these briefs that Section 3 is subject to heightened scrutiny and is unconstitutional under that standard).

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Six days later, despite having fully prevailed below, DOJ filed a separate Notice of Appeal. See [Corrected] Notice of Appeal, Windsor v. United States, No. 1:10-cv-08435 (S.D.N.Y. June 14, 2012) (ECF No. 97) . That appeal was docketed as No. 12-2435. DOJ made clear it was appealing the very same issue the House is appealing. Compare [DOJ] Addendum B [to Form C], No. 12-2435 (June 25, 2012) (ECF No. 22-2), with [House] Addendum B [to Form C], No. 122335 (June 26, 2012) (ECF No. 64-1).4 ARGUMENT The Executive Branchs appeal should be dismissed because (i) it has no standing to appeal here, and (ii) its appeal is wholly superfluous in light of the Houses appeal. I. DOJ Prevailed Below and, Therefore, Lacks Standing to Appeal. The Supreme Court has made clear that a party has no standing to appeal when the lower court has granted all the relief the party requested: 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. Natl Bank v. Roper, 445 U.S. 326, 333 (1980); see also Forney v. Apfel, 524 U.S. 266, 271 (1998); Parr v. United States, 351 U.S. 513, 516 (1956) (Petitioners appeal will not lie because No party has moved to consolidate the two appeals, and this Court has not entered an order consolidating them. The Clerks Office, however, appears to be treating the two cases as if they were consolidated.
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petitioner has not been aggrieved. Only one injured by the judgment sought to be reviewed can appeal.); Pub. Serv. Commn of Mo. v. Brashear Freight Lines, Inc., 306 U.S. 204, 206 (1939) (the successful party below has no standing to appeal). This Courts cases are, of course, very much to the same effect. See, e.g., Keach v. Cnty. of Schenectady, 593 F.3d 218, 223 (2d Cir. 2010) (Ordinarily, a party cannot appeal a judgment in his favor to obtain review of findings he deems erroneous. (quoting K & A Radiologic Tech. Servs., Inc. v. Commr of Dept of Health of N.Y., 189 F.3d 273, 282 n.11 (2d Cir. 1999)); Trust for Certificate Holders of Merrill Lynch Mortg. Investors, Inc. v. Love Funding Corp., 496 F.3d 171, 173 (2d Cir. 2007) ([T]he Supreme Court has explained, ordinarily, only a party aggrieved by a judgment or order of a district court may exercise the statutory right under 28 U.S.C. 1291 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. (quoting Roper, 445 U.S. at 333) (brackets and internal citations omitted)); St. Paul Fire & Marine Ins. Co. v. Universal Builders Supply, 409 F.3d 73, 83 (2d Cir. 2005) (same); Shatah v. Shearson/Am. Express, Inc., 873 F.2d 550, 552 (2d Cir. 1989) (same); Sheldon v. PHH Corp., 135 F.3d 848, 856 (2d Cir. 1998) (A prevailing party cannot appeal from a district court judgment in its favor. (quoting Ashley v. Boehringer Ingelheim Pharm., 7 F.3d 20, 23 (2d Cir. 1993)) (brackets omitted)); cf. Hermes Intl v. Lederer de
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Paris Fifth Ave., Inc., 219 F.3d 104, 109-10 (2d Cir. 2000) (where defendantappellees were granted relief via partial grant of summary judgment by the district court, they were not entitled to a cross-appeal from the denial of other parts of their motion for summary judgment). In this case, the Executive Branch plainly lacks standing to appeal the judgment entered below because, far from being aggrieved by that judgment, the Executive Branch got exactly what it sought. The Executive Branch affirmatively requested, and obtained, the judgment that the district court entered striking down DOMA. 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, 445 U.S. at 333. The Executive Branch won below and, as a district court winner, it is not a proper appellant in this Court. In another DOMA appeal in which this jurisdictional issue has arisen, DOJ claimed that the interim invalidation of a statute itself causes recognized injury to the interests of the United States. Mot. to Consolidate and Expedite Appeals at 67, Golinski v. OPM, Nos. 12-15388 & 12-15409 (9th Cir. Mar. 26, 2012) (ECF No. 19) (DOJ Golinski Mot.) (citing Bowen v. Kendrick, 483 U.S. 1304, 1304 (1987) (Rehnquist, J., in chambers); Walters v. Natl Assn of Radiation Survivors, 468 U.S. 1323, 1324 (1984) (Rehnquist, J., in chambers); New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977) (Rehnquist, J., in
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chambers)). But to the extent the United States government suffers any affront from the invalidation of a federal statute, the Executive Branch hardly can invoke that as a reason for appeal where, as here, it requested the invalidation. Because the House and not DOJ is defending DOMAs constitutionality, it is the House and not DOJ that represents the governments interests with respect to any harm arising from DOMAs interim invalidation. None of the cases DOJ cited in its Golinski pleading presented this dynamic. Instead, each involved Executive Branch defendants that were actually defending the statutes in question and in fact were seeking a stay of an injunction against their enforcement.5 The Executive Branch clearly is not aggrieved here in any reasonable sense of that word, having secured everything it sought below. Indeed, it acknowledges that it intends to file briefs with this Court in support of Ms. Windsors claims, see Addendums A & B to [Form C], No. 12-2435 (2d Cir. June 25, 2012) (ECF No. 22-2), and, as an appellee in the Houses appeal, No. 12-2335, it will have ample opportunity to do so.6

Moreover, all of these decisions were entered by a single justice and, therefore, lack precedential value. E.g., Lois J. Scali, Prediction-Making in the Supreme Court: The Granting of Stays by Individual Justices, 32 UCLA L. Rev. 1020, 1046 (1985) (In-chambers opinions on stays have no precedential effect on either the lower courts or the Supreme Court.). INS v. Chadha, 462 U.S. 919 (1983), is not to the contrary. In that case, the Supreme Court held that the INS was sufficiently aggrieved to appeal a (Continued . . .)
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II.

DOJs Appeal Is Superfluous and Cannot Be Supported by Interests DOJ Has Disowned and Is Working to Frustrate.

The defendants in this case have assumed markedly different postures. While the House has defended DOMAs constitutionality, the Executive Branch has disowned the statute and asked the courts to strike it down. When the court below agreed with DOJ and rejected the Houses contentions, the House quite unremarkably noticed its appeal. On the other hand, DOJ shadow appeal, identifying the very same issue, is remarkable because it serves no purpose whatever (aside from sowing confusion). judgment striking down a legislative veto of the INSs suspension of a deportation, even though the INS had attacked the statute in the courts below. 462 U.S. at 930. But Chadha expressly limited its holding to an interpretation of 28 U.S.C. 1252, the since-repealed statute providing for mandatory Supreme Court appellate jurisdiction, which had provided that [a]ny party could appeal to the Supreme Court from a judgment holding an Act of Congress unconstitutional. Chadhas conclusion therefore was carefully, and narrowly, circumscribed: At least for purposes of deciding whether the INS is any party within the grant of appellate jurisdiction in 1252, we hold that the INS was sufficiently aggrieved by the Court of Appeals decision prohibiting it from taking action it would otherwise take. 462 U.S. at 930. Unlike 1252, the statute conferring jurisdiction on this Court in this case, 28 U.S.C. 1291, does not allow any party to appeal. In addition, Chadha held only that an agency of the United States could appeal when the Act of Congress it administers is held unconstitutional. 462 U.S. at 931. The legislative veto invalidated in Chadha was entirely a part of the Immigration and Nationality Act, which INS administered. See id. at 924 n.1. This case, however, does not fall within the parameters of Chadhas holding because the statute the district court invalidated, DOMA Section 3, applies broadly to hundreds of different federal statutes and is not administered by any particular federal agency (none of which are defendants in this case in any event). Thus, the Executive Branch cannot be said to be aggrieved by DOMAs invalidation.
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DOJ suggested in its Golinski Motion that its shadow appeal is necessary to enable the House to litigate in the appellate court. See DOJ Golinski Mot. at 4 (DOJ appealed in order to ensure the existence of a justiciable case or controversy for this Court to resolve on appeal). That plainly is wrong. Where, as here, DOJ abandons its constitutional responsibility to defend a federal statute, the Legislative Branch has Article III standing to intervene to defend the law at all stages of the litigation. The Supreme Court ha[s] 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. Chadha, 462 U.S. at 940 (citing Cheng Fan Kwok v. INS, 392 U.S. 206, 210 n.9 (1968), and United States v. Lovett, 328 U.S. 303 (1946)). In Chadha, a private party challenged the constitutionality of a federal statute DOJ declined to defend. After the Ninth Circuit ruled for the plaintiff, the House, through the Speaker, and the Senate moved to intervene for the purpose of petitioning for certiorari. Chadha, 462 U.S. at 930 n.5. The Ninth Circuit granted that motion. See Order, Chadha v. INS, No. 77-1702 (9th Cir. Mar. 10, 1981), attached as Ex. 3 (granting Houses motion to intervene for purpose of obtaining standing to petition for rehearing and seeking certiorari from Supreme Court). Subsequently, the Supreme Court granted the House and Senate petitions for
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certiorari, holding over DOJs suggestion otherwise, see Mem. for the Fed. Respt, U.S. House of Representatives v. INS, Nos. 80-2170 & 80-2171, 1981 U.S. S. Ct. Briefs LEXIS 1423, at *4 (Aug. 28, 1981) that Congress is both a proper party to defend the constitutionality of [the statute at issue] and a proper petitioner under [the statute governing petitions for writs of certiorari]. Chadha, 462 U.S. at 939. In so holding, the Supreme Court made crystal clear that the House and Senate had Article III standing: [A]n appeal must present a justiciable case or controversy under Art. III. Such a controversy clearly exists . . . because of the presence of the two Houses of Congress as adverse parties. Id. at 931 n.6 (emphasis added). Therefore, when DOJ defaults on its constitutional responsibilities to defend the constitutionality of a statute, as it unquestionably has here, the House may intervene and, when it does, it has Article III standing, regardless of what DOJ does or does not do.7

See also Bryant v. Yellen, 447 U.S. 352, 366-68 (1980) (failure of government to appeal does not deprive intervenor of right to appeal adverse decision); Schulz v. Williams, 44 F.3d 48, 52-53 (2d Cir. 1994) (where independent Article III standing exhibited, intervenor maintained right of appeal despite states refusal to appeal invalidation of state statute); Perry v. Brown, 671 F.3d 1052, 1064 (9th Cir. 2012) (upholding intervention and subsequent appeal of sponsors of California constitutional ballot initiative to defend initiative where State itself would neither defend nor appeal); NL Indus. Inc. v. Secy of Interior, 777 F.2d 433, 436 (9th Cir. 1985) (appeal by intervenor neither impermissible nor moot when Executive Branch co-defendant declined to appeal). (Continued . . .)
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Faced with Chadha, DOJ has relied on two cases, neither of which is apposite. See DOJ Golinski Motion at 4 n.1 (citing Diamond v. Charles, 476 U.S. 54 (1986), and Newdow v. U.S. Congress, 313 F.3d 495 (9th Cir. 2002)). Diamond, which held only that a private party whose own conduct is neither implicated nor threatened by a criminal statute has no judicially cognizable interest in the statutes defense, 476 U.S. at 56, is not relevant here because the House is not a private party, DOMA Section 3 is not a criminal statute, and DOJ did not decline to defend an Act of Congress in that case. Newdow is equally inapposite. In Newdow, DOJ actively defended the constitutionality of a federal statute inserting the words under God into the Pledge of Allegiance. In that context, the Ninth Circuit denied the Senates request to intervene. In so holding, the Court carefully distinguished a number of cases in which, unlike in Newdow (but exactly as here), a congressional body successfully intervened to defend the constitutionality of a statute that DOJ had refused to In keeping with Chadhas holding, congressional entities including specifically the House through its Bipartisan Legal Advisory Group repeatedly have intervened to defend the constitutionality of legislation DOJ has refused to defend. See, e.g., In re Koerner, 800 F.2d 1358 (5th Cir. 1986); Ameron, Inc. v. U.S. Army Corps of Engrs, 787 F.2d 875 (3d Cir. 1986). None of these cases suggests that the House lacked standing, and several were decided by federal courts in the District of Columbia e.g., North v. Walsh, 656 F. Supp. 414, 415 n.1 (D.D.C. 1987); Barnes v. Carmen, 582 F. Supp. 163 (D.D.C. 1984) where circuit precedent requires would-be intervenors to demonstrate Article III standing. See, e.g., Bldg. & Constr. Trades Dept v. Reich, 40 F.3d 1275, 1282-83 (D.C. Cir. 1994).
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defend. Newdow, 313 F.3d at 498. The very disturbing legal implication of DOJs position that the House cannot pursue its appeal unless DOJ permits it to is that DOJ has the power effectively to preclude the judicial branch of the federal government from determining the constitutionality of an Act of Congress by (i) first refusing to defend the Acts constitutionality, and (ii) then withholding or withdrawing its commitment to provid[e] Congress a full and fair opportunity to participate in the litigation. Holder Letter at 6. Tying the Houses ability to defend the constitutionality of an Act of Congress that DOJ refuses to defend to the existence of a separate DOJ appeal which it may choose to file or not file would be tantamount to providing the Executive Branch with an extra-constitutional, postenactment veto over federal statutes to which it objects. The Executive Branch simply does not possess that kind of unilateral authority under our system of government. See, e.g., Lear Siegler, Inc. v. Lehman, 842 F.2d 1102, 1122 (9th Cir. 1988), vacated in part on other grounds, 893 F.2d 205 (9th Cir. 1989) (law does not permit the executive branch to interpret the Constitution so as to assume additional powers or thwart the constitutional functions of a coordinate branch). See generally Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587-89 (1952) (responsibility of judiciary to interpret and enforce constitutional limits on Executive Branch when it seeks to exercise authority assigned to other branches).
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In sum, because (i) DOJ is seeking to invalidate a duly-enacted federal statute it simply does not like; (ii) DOJ has not identified, because it cannot, any independent basis for its appeal; and (iii) the House is entitled to pursue its appeal (No. 12-2335) entirely separate and apart from DOJ and is in fact doing so DOJs appeal (No. 12-2435) is entirely superfluous. More than that, because the judgment of the district court gave the Executive Branch everything it sought, the Executive Branch does not have standing to appeal that judgment. CONCLUSION For all the foregoing reasons, appeal No. 12-2435 should be dismissed. Respectfully submitted, /s/ Paul D. Clement 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 the Bipartisan Legal Advisory Group of the U.S. House of Representatives8 The Bipartisan Legal Advisory Group, which speaks for the House in litigation matters, currently is comprised of the Honorable John A. Boehner, Speaker of the House, the Honorable Eric Cantor, Majority Leader, the Honorable (Continued . . .)
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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 (202) 225-9700 July 19, 2012

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 3s constitutionality in this case.
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CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Second Circuit by using the appellate CM/ECF system on July 19, 2012. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.

/s/ Paul D. Clement Paul D. Clement

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Exhibit 2

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Nos. 12-15388 & 12-15409 (Consolidated)

United States Court of Appeals for the Ninth Circuit

Karen GOLINSKI, Plaintiff-Appellee, v. UNITED STATES OFFICE OF PERSONNEL MANAGEMENT; JOHN BERRY, Director of the U.S. Office of Personnel Management, in his official capacity, Defendants & BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES, Intervenor-Defendant-Appellant. Karen GOLINSKI, Plaintiff-Appellee, v. UNITED STATES OFFICE OF PERSONNEL MANAGEMENT; JOHN BERRY, Director of the U.S. Office of Personnel Management, in his official capacity, Defendants-Appellants, & BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES, Intervenor-Defendant. On Appeal from the United States District Court for the Northern District of California AMICI CURIAE BRIEF OF FORMER ATTORNEYS GENERAL EDWIN MEESE III AND JOHN ASHCROFT IN SUPPORT OF INTERVENOR-DEFENDANT-APPELLANT THE BIPARTISAN LEGAL ADVISORY GROUP OF THE UNITED STATES HOUSE OF REPRESENTATIVES AND REVERSAL

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Jay Alan Sekulow Counsel of Record Stuart J. Roth American Center for Law & Justice 201 Maryland Ave., NE Washington, DC 20002 Phone: (202) 546-8890 Fax: (202) 546-9309

CeCe Heil* Robert W. Ash Erik Zimmerman* American Center for Law & Justice 1000 Regent University Drive Virginia Beach, VA 23464 Phone: (757) 226-2489 Fax: (757) 226-2836

Counsel for Amici * - Not admitted to this Courts bar

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TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................................................... ii INTEREST OF AMICI .............................................................................................. 1 SUMMARY OF ARGUMENT ................................................................................. 1 ARGUMENT ............................................................................................................. 4 I. The Longstanding Historical Practice of the Executive Branch Has Been to Defend Federal Laws Against Constitutional Attack Unless They Infringe Upon the Presidents Constitutional Authority or Are Patently Unconstitutional. ............................................................................... 4 A. B. C. D. E. II. The Founding Era to President Wilson ................................................. 5 President Coolidge to President Eisenhower ........................................ 9 President Kennedy to President Carter ............................................... 12 President Reagan ................................................................................. 18 Presidents Bush, Clinton, and Bush .................................................... 21

The Executive Branch Decision to Challenge DOMAs Constitutionality After Fifteen Years of Defending It Reflects an Unprecedented Reading of the Presidents Take Care Obligation. ............... 25

CONCLUSION ........................................................................................................ 28 Certificate of Compliance With Type-Volume Limitation, Typeface Requirements, and Type Style Requirements .......................................................... 30 CERTIFICATE OF SERVICE ................................................................................ 31 Exhibit A: Attorney General Eric Holder, Letter from the Attorney General to Congress on Litigation Involving the Defense of Marriage Act, Feb. 23, 2011

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TABLE OF AUTHORITIES Cases Adolph Coors Co. v. Brady, 944 F.2d 1543 (10th Cir. 1991).................................. 18 Am. Foreign Serv. Assn v. Garfinkel, 490 U.S. 153 (1989) ................................... 22 Ameron, Inc. v. U.S. Army Corps of Engrs, 787 F.2d 875 (3d Cir. 1986) ............. 21 Bailey v. Patterson, 369 U.S. 31 (1962) .................................................................. 12 Bowsher v. Synar, 478 U.S. 714 (1986)................................................................... 20 Buckley v. Valeo, 424 U.S. 1 (1976) ........................................................................ 14 DaCosta v. Nixon, 55 F.R.D. 145 (E.D.N.Y. 1972) .......................................... 13, 14 Dickerson v. United States, 530 U.S. 428 (2000) .................................................... 23 FCC v. League of Women Voters of California, 468 U.S. 364 (1984) ..............17, 19 Freytag v. Commissioner, 501 U.S. 868 (1991) ...................................................... 22 Gavett v. Alexander, 477 F. Supp. 1035 (D.D.C. 1979) ..............................14, 15, 20 Hechinger v. Metro Washington Airports Auth., 36 F.3d 97 (D.C. Cir. 1994) ....... 23 Humphreys Executor v. United States, 295 U.S. 602 (1935) ................................... 9 In re Benny, 812 F.2d 1133 (9th Cir. 1986) ............................................................. 20 In re Koerner, 800 F.2d 1358 (5th Cir. 1986) ......................................................... 20 INS v. Chadha, 462 U.S. 919 (1983) ....................................................................... 20 Kendall v. United States, 37 U.S. (12 Pet.) 524 (1838) ............................................. 6

ii

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Lear Siegler, Inc., Energy Prods. Division v. Lehman, 842 F.2d 1102 (9th Cir. 1988), withdrawn in part by 893 F.2d 205 (9th Cir. 1989) (en banc) .......................................................................................3, 21 Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) ................................................. 6 McConnell v. FEC, 540 U.S. 93 (2003)................................................................... 25 Metro Broad., Inc. v. FCC, 497 U.S. 547 (1990) ..............................................21, 24 Miranda v. Arizona, 384 U.S. 436 (1966) ............................................................... 23 Morrison v. Olson, 487 U.S. 654 (1988) ................................................................. 20 Myers v. United States, 272 U.S. 52 (1926) .......................................................... 8, 9 New York Trust Co. v. Eisner, 256 U.S. 345 (1921).................................................. 4 Oregon v. Mitchell, 400 U.S. 112 (1970) ................................................................ 13 Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 959 (4th Cir. 1963)........................................................................................12, 13, 19 Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180 (1997) .....................................23, 24 Turner Broad. Sys., Inc. v. FCC, 819 F. Supp. 32 (D.D.C. 1993)........................... 22 United States v. Lovett, 328 U.S. 303 (1946) .......................................................... 11 United States v. Smith, 27 F. Cas. 1192 (Cir. Ct. D.N.Y. 1806) ............................... 6 Wiener v. United States, 357 U.S. 349 (1958) ......................................................... 12 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) .......................11, 12 Zivotofsky v. Clinton, 132 S. Ct. 1421 (2012).......................................................... 28

iii

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Attorney General and Office of Legal Counsel Opinions A. Mitchell Palmer, Income Tax: Salaries of President and Federal Judges, 31 Op. Atty Gen. 475, 1919 U.S. AG LEXIS 50 (1919) ................................... 8 Benjamin R. Civiletti, Constitutionality of Congress Disapproval of Agency Regulations By Resolutions Not Presented to the President, 4 Op. O.L.C. (Vol. A) 21, 43 Op. Atty Gen. 231, 1980 OLC LEXIS 6 (1980) .................... 15 Benjamin R. Civiletti, The Attorney Generals Duty to Defend and Enforce Constitutionally Objectionable Legislation, 43 Op. Atty Gen. 275, 4 Op. O.L.C. (Vol. A) 55, 1980 OLC LEXIS 8 (1980) ..........................6, 9, 11, 16 Charles Devens, Military Prisons: Court-Martial Jurisdiction, 16 Op. Atty Gen. 292, 1879 U.S. AG LEXIS 57 (1879) ....................................................... 10 David J. Barron, Constitutionality of Section 7054 of the Fiscal Year 2009 Foreign Appropriations Act, 2009 OLC LEXIS 6 (2009) ................................ 27 Homer Cummings, Duty of Disbursing Officers to Make Disbursements Required Under the Agricultural Adjustment Act, 38 Op. Atty Gen. 252, 1935 U.S. AG LEXIS 27 (1935) ....................................................................... 10 Homer Cummings, Rendition of Opinions on Constitutionality of Statutes: Federal Home Loan Bank Act, 39 Op. Atty Gen. 11, 1937 U.S. AG LEXIS 31 (1937) ............................................................................................... 11 Jeremiah S. Black, Memorial of Captain Meigs, 9 Op. Atty Gen. 462, 1860 U.S. AG LEXIS 23 (1860) .................................................................................. 7 Jeremiah S. Black, The Fox and Wisconsin River Reservation, 9 Op. Atty Gen. 346, 1859 U.S. AG LEXIS 33 (1859) ......................................................... 7 Leon Ulman, Constitutionality of Legislation Establishing the Cost Accounting Standards Board, 4 Op. O.L.C. (Vol. B) 697, 1980 OLC LEXIS 75 (1980) ............................................................................................... 16 Theodore B. Olson, Prosecution for Contempt of Congress of an Executive Branch Official Who Has Asserted a Claim of Executive Privilege, 8 Op. O.L.C. 101, 1984 OLC LEXIS 50 (1984) ........................................................... 8 iv

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Theodore B. Olson, Recommendation That the Department of Justice Not Defend the Constitutionality of Certain Provisions of the Bankruptcy Amendments and Federal Judgeship Act of 1984, 8 Op. O.L.C. 183, 1984 OLC LEXIS 42 (1984) .................................................2, 11, 12, 17, 19, 20 Virginia A. Seitz, Unconstitutional Restrictions on Activities of the Office of Science and Technology Policy in Section 1340(A) of the Department of Defense and Full-Year Continuing Appropriations Act, 2011, 2011 OLC LEXIS 3 (2011) ................................................................................................. 28 William P. Barr, Issues Raised by Foreign Relations Authorization Bill, 14 Op. O.L.C. 37, 1990 OLC LEXIS 51 (1990) .................................................... 21

Constitutions, Statutes, and Rules Defense of Marriage Act ...................................................................................passim Fed. R. App. P. 32(a) ............................................................................................... 30 U.S. Const. Art. II, 1, Cl. 7 ..................................................................................... 3 U.S. Const. Art. II, 3 ............................................................................................... 3

Other Authorities Arthur S. Miller & Jeffrey H. Bowman, Presidential Attacks on the Constitutionality of Federal Statutes: A New Separation of Powers Problem, 40 Ohio St. L.J. 51 (1979)..............................................................6, 18 Attorney General Eric Holder, Letter from the Attorney General to Congress on Litigation Involving the Defense of Marriage Act, Feb. 23, 2011 ......................................... 2, 3, 13, 15, 17-18, 25-26 Christopher N. May, Presidential Defiance of Unconstitutional Laws: Reviving the Royal Prerogative, 21 Hastings Const. L.Q. 865 (1994) ............... 5

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Daniel J. Meltzer, Executive Defense of Congressional Acts, 61 Duke L.J. 1183 (2012) ....................................................................................................7, 25 Drew S. Days III, In Search of the Solicitor Generals Clients: A Drama with Many Characters, 83 Ky. L.J. 485 (1994)...........................................14, 23 Executive Discretion and the Congressional Defense of Statutes, 92 Yale L.J. 970 (1983) ...................................................................................9, 13, 17, 18 Letter from Attorney General Smith to Senators Thurmond and Biden (Apr. 6, 1981) .............................................................................................................. 18 Memorandum Supporting Motion to Dismiss, Massachusetts v. U.S. Dept. of Health & Human Servs., Case No. 1:09-cv-11156-JLT, Doc. 47 (D. Mass. Apr. 30, 2010) ......................................................................................... 26 President George W. Bush, Statement on Signing the Bipartisan Campaign Reform Act of 2002 (Mar. 27, 2002) .................................................................. 25 Seth P. Waxman, Defending Congress, 79 N.C. L. Rev. 1073 (2001).................... 24 Statement of James Wilson on the Adoption of the Federal Constitution (Dec. 1, 1787), available at http://www.constitution.org/rc/rat_pa.htm ............. 5 Testimony of Elena Kagan: Opening Statement, Feb. 10, 2009, available at http://www.judiciary.senate.gov/hearings/testimony.cfm?id=e655f9e280 9e5476862f735da14362b2&wit_id=e655f9e2809e5476862f735da14362 b2-1-2 ................................................................................................................. 27 Transcript, Senate Confirmation Hearings: Eric Holder, Day One, Jan. 16, 2009, available at http://www.nytimes.com/2009/01/16/us/politics/ 16text-holder.html?_r=1&pagewanted=all........................................................ 27

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INTEREST OF AMICI All parties have consented to the filing of this brief.1 Amicus, Edwin Meese III, served as the Seventy-Fifth Attorney General of the United States under President Reagan from 1985 to 1988. He previously served as Counsellor to President Reagan. Amicus, John Ashcroft, served as the Seventy-Ninth Attorney General of the United States under President George W. Bush from 2001 to 2005. He previously served as a United States Senator and as Governor of Missouri. The amici submit this brief because they are deeply concerned that the precedent that the Department of Justice set by failing to defend the Defense of Marriage Act in this and other litigation may have a negative impact upon the judicial process and the separation of powers set forth in the Constitution. SUMMARY OF ARGUMENT Any decision by the Executive that a law is not constitutional and that it will not be enforced or defended tends on the one hand to undermine the function of the Legislature and, on the other, to usurp the function of the Judiciary. It is generally inconsistent with the Executives duty, and contrary to the allocation of legislative power to Congress, for the Executive to take actions which have the practical effect of nullifying an Act of Congress. It is also generally for the courts, and not the Executive, finally to decide whether a law is constitutional. Any action of the President which precludes, or

No party or partys counsel authored this brief in whole or in part, or contributed money that was intended to fund preparing or submitting this brief. No person, other than amici or their counsel, contributed money that was intended to fund preparing or submitting this brief. 1

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substitutes for, a judicial test and determination would at the very least appear to be inconsistent with the allocation of judicial power by the Constitution to the courts. Theodore B. Olson, Recommendation That the Department of Justice Not Defend the Constitutionality of Certain Provisions of the Bankruptcy Amendments and Federal Judgeship Act of 1984, 8 Op. O.L.C. 183, 1984 OLC LEXIS 42, at *27-28 (1984). The decision by President Obama and Attorney General Holder to instruct the Department of Justice (DOJ) to no longer defend the Defense of Marriage Act (DOMA) after fifteen years of doing so, and to affirmatively challenge its constitutionality in court, is unprecedented in the nations history. The Attorney Generals February 2011 letter explaining why DOJ would no longer defend DOMA stated that he and the President had concluded that laws implicating sexual orientation as a class should be subject to strict scrutiny, despite substantial circuit court authority applying rational basis review in such situations. Attorney General Eric Holder, Letter from the Attorney General to Congress on Litigation Involving the Defense of Marriage Act, at 1, Feb. 23, 2011 (hereafter DOMA letter) (attached as Exhibit A). Attorney General Holder also acknowledged that, consistent with the position [DOJ] has taken in prior cases, a reasonable argument for Section 3s constitutionality may be proffered under [the rational basis] standard. Id. at 2. In addition, the letter stated: 2

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[DOJ] has a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense, a practice that accords the respect appropriately due to a coequal branch of government. . . . This is the rare case where the proper course is to forgo the defense of this statute.2 The administrations change of position marks an unprecedented and illadvised departure from over two centuries of Executive Branch practice. Historically, the Presidents constitutional obligation to take care that the laws be faithfully executed, U.S. Const. Art. II, 3, has been understood to include the vigorous defense of Acts of Congress when they are challenged in court. In light of the Presidents oath to preserve, protect, and defend the Constitution, U.S. Const. Art. II, 1, Cl. 7, two narrow exceptions have been recognized for instances in which a federal law either infringes upon the Presidents constitutional authority or is patently unconstitutional, leaving no room for reasonable arguments. Litigation challenging DOMA does not fall within either of these narrow categories (even under the Attorney Generals reading of the statute). Various Attorney General and Office of Legal Counsel opinions have explained that taking an unduly broad view of the Presidents limited authority to disregard, challenge, or fail to defend federal statutesas the Executive Branch has now taken with respect to DOMAfails to afford due respect to Congress and threatens to undermine the proper functioning of the judicial process. See also Lear

Id. The letter also relied upon a law review article by former Solicitor General Seth Waxman which is discussed in Section I.E, infra. 3

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Siegler, Inc., Energy Prods. Division v. Lehman, 842 F.2d 1102, 1121 (9th Cir. 1988)3 (concluding that the view that the President may disregard laws that he considers to be constitutional is utterly at odds with the texture and plain language of the Constitution, and with nearly two centuries of judicial precedent). The anomalous nature of the DOMA letter reflects a transparently political decision in one instancenot an official change in Executive Branch policy that would be constitutionally suspectand, as such, DOJs brief carries less persuasive weight than a typical DOJ brief. ARGUMENT I. The Longstanding Historical Practice of the Executive Branch Has Been to Defend Federal Laws Against Constitutional Attack Unless They Infringe Upon the Presidents Constitutional Authority or Are Patently Unconstitutional. Justice Holmess observation that a page of history is worth a volume of logic, New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921), is particularly relevant in examining the propriety of the Executive Branch decision to challenge DOMAs constitutionality. As the following section explains, history illustrates that an Executive Branch challenge in litigation of a statute that does not raise separation of powers concerns, and for which the Executive Branch admits reasonable arguments may be made, is unprecedented.

Withdrawn in part on other grounds by 893 F.2d 205 (9th Cir. 1989) (en banc). 4

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A.

The Founding Era to President Wilson

Loyola Law School Professor Christopher N. May has explained: The argument that a President may refuse to enforce laws he believes to be unconstitutional is but a reincarnation of the claimed royal prerogative of suspending the laws which was abolished by England by the Bill of Rights of 1689. . . . [T]he Founders did not intend the President to possess a power to suspend laws that he might think unconstitutional. Christopher N. May, Presidential Defiance of Unconstitutional Laws: Reviving the Royal Prerogative, 21 Hastings Const. L.Q. 865, 893, 977 (1994) (citations omitted) (emphasis added). Although James Wilson, one of the Constitutions authors, once stated that, if Congress exceeded the bounds of its constitutional authority, the President could shield himself, and refuse to carry into effect an act that violates the Constitution, Statement of James Wilson on the Adoption of the Federal Constitution (Dec. 1, 1787),4 the quote does not support a broad Presidential authority to disregard provisions that he believes are unconstitutional in all situations. To the contrary, the quote was part of an argument that the Constitution includes several means for the President, the federal courts, and the States to shield themselves from Congressional acts that violate the separation of powers or federalism, id., and is irrelevant in situations, like the present case, that do not implicate those core constitutional principles.

Available at http://www.constitution.org/rc/rat_pa.htm (emphasis added). 5

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Perhaps the earliest example of a President refusing to defend an Act of Congress gave rise to the Supreme Courts decision in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), and was based upon the separation of powers. President Jefferson was strongly of the view that Congress had no power to give the Supreme Court (or any other court) authority to control executive officers through the issuance of writs of mandamus. When Mr. Marbury and the other midnight judges initiated an original action in the Supreme Court to compel delivery of their commissions, President Jeffersons Attorney General, Levi Lincoln, made no appearance in the case except as a reluctant witness. No attorney appeared on behalf of Secretary Madison. Benjamin R. Civiletti, The Attorney Generals Duty to Defend and Enforce Constitutionally Objectionable Legislation, 43 Op. Atty Gen. 275, 4 Op. O.L.C. (Vol. A) 55, 1980 OLC LEXIS 8, at *15-16 (1980) (citations omitted). In 1838, the Supreme Court rejected the argument that the President has broad authority to direct Executive Branch employees to ignore a federal statute: To contend that the obligation imposed on the President to see the laws faithfully executed, implies a power to forbid their execution, is a novel construction of the constitution, and entirely inadmissible. Kendall v. United States, 37 U.S. (12 Pet.) 524, 613 (1838); see also United States v. Smith, 27 F. Cas. 1192, 1229-30 (Cir. Ct. D.N.Y. 1806) (reaching a similar conclusion); Arthur S. Miller & Jeffrey H. Bowman, Presidential Attacks on the Constitutionality of Federal Statutes: A New Separation of Powers Problem, 40 Ohio St. L.J. 51, 72 (1979) (stating that the

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Take Care Clause does not give the Chief Executive a selective item veto over the laws he is to execute. Execution means enforcement and defense.). Two of the earliest Attorney General opinions to address the propriety of Executive Branch determinations of a laws constitutionality were issued under President Buchanan. They illustrate the key distinction, recognized to this day, between laws that raise separation of powers concerns and laws that do not. Compare Jeremiah S. Black, Memorial of Captain Meigs, 9 Op. Atty Gen. 462, 1860 U.S. AG LEXIS 23, at *12-13 (1860) (concluding that the President may treat a funding condition that interfered with his control of a military officer as if the paper on which it is written were blank) with Jeremiah S. Black, The Fox and Wisconsin River Reservation, 9 Op. Atty Gen. 346, 1859 U.S. AG LEXIS 33, at *4 (1859) (concluding with respect to a statute that did not raise separation of powers concerns that [a]n executive officer cannot pronounce [it] void). President Andrew Johnsons impeachment trial reaffirmed the controversial nature of a Presidential decision to treat a federal law as if it were unconstitutional. In 1867, President Johnson removed his Secretary of War in violation of the Tenure in Office Act, which he considered to violate his appointment authority. A House member in favor of impeachment argued that presidents must execute and defend all federal laws, even those the president believes are unconstitutional. Daniel J. Meltzer, Executive Defense of Congressional Acts, 61 Duke L.J. 1183, 7

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1192-93 (2012). Chief Justice Chase, who presided over the impeachment trial, stated that the President had a duty to execute a statute passed by Congress which he believed to be unconstitutional precisely as if he held it to be constitutional. However, . . . in the case of a statute which directly attacks and impairs the executive power confided to him by the Constitution . . . the clear duty of the President [is] to disregard the law, so far at least as it may be necessary to bring the question of its constitutionality before the judicial tribunals. Theodore B. Olson, Prosecution for Contempt of Congress of an Executive Branch Official Who Has Asserted a Claim of Executive Privilege, 8 Op. O.L.C. 101, 1984 OLC LEXIS 50, at *104-05 (1984) (citation omitted).5 A 1919 Attorney General opinion emphasized the Attorney Generals obligation to defend federal laws that do not implicate the separation of powers: Ordinarily, I would be content to say that it is not within the province of the Attorney General to declare an Act of Congress unconstitutionalat least where it does not involve any conflict between the prerogatives of the legislative department and those of the executive departmentand that when an act . . . is passed it is the duty of the executive department to administer it until it is declared unconstitutional by the courts. A. Mitchell Palmer, Income Tax: Salaries of President and Federal Judges, 31 Op. Atty Gen. 475, 1919 U.S. AG LEXIS 50, at *2, 25-26 (1919). In sum, the Executive Branch did not affirmatively attack the constitutionality of a federal law in litigation during the first 130 years after the

The Supreme Court eventually held that the Tenure of Office Act was unconstitutional. Myers v. United States, 272 U.S. 52, 176 (1926). 8

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ratification of the Constitution, and the rare decisions to not defend or enforce a federal law involved the separation of powers or federalism. B. President Coolidge to President Eisenhower

The Coolidge administration featured the first case in which DOJ attacked the constitutionality of a federal law in court. Olson, 1984 OLC LEXIS 42, at *3536. Myers v. United States, 272 U.S. 52 (1926), arose out of President Wilsons refusal to comply with a law prohibiting him from removing postmasters without the approval of the Senate. The Solicitor General argued that the law unconstitutionally limited the Presidents appointment and removal authority, while a United States Senator appeared as an amicus curiae to argue that the statute was constitutional. Civiletti, 1980 OLC LEXIS 8, at *11-12. The Supreme Court held that the provision was unconstitutional. 272 U.S. at 176. Myers does not provide support for an Executive Branch challenge to a federal law, like DOMA, that does not implicate the separation of powers. See, e.g., Executive Discretion and the Congressional Defense of Statutes, 92 Yale L.J. 970, 977 n.27 (1983) (Many commentators have expressed the opinion that the Attorney General must assume the constitutionality of all statutes, at least where the separation of powers presents no difficulties.). Nine years later, in Humphreys Executor v. United States, 295 U.S. 602 (1935), the Solicitor General argued, unsuccessfully, that a removal limitation in 9

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the Federal Trade Commission Act violated the Presidents constitutional authority. That same year, an Attorney General opinion advised that executive officers may not disregard a federal statute based upon a circuit court decision: To accept a decision upon a constitutional question in one circuit and give it Nationwide application with the effect of setting aside a congressional enactment of major importance would be without precedent, insofar as I am aware, and might even raise a grave question of possible dereliction of duty on the part of the officers charged with the administration of the statute and the conduct of the litigation involving it. Homer Cummings, Duty of Disbursing Officers to Make Disbursements Required Under the Agricultural Adjustment Act, 38 Op. Atty Gen. 252, 1935 U.S. AG LEXIS 27, at *8-12 (1935); see also Charles Devens, Military Prisons: CourtMartial Jurisdiction, 16 Op. Atty Gen. 292, 1879 U.S. AG LEXIS 57, at *6 (1879) (reaching a similar conclusion). This principle remains important in the many instances in which federal courts of appeal reach different conclusions about the constitutionality of federal laws. A 1937 Attorney General opinion reiterated that it was rare for the Attorney General to express the view that a federal statute was unconstitutional: Save in exceptional cases it has been the practice of Attorneys General to refrain from rendering opinions as to the constitutionality of enactments of the Congress. . . . Should the Attorney General . . . vouchsafe his opinion holding the legislation unconstitutional, he would set himself up as a judge of the acts of the Congress and of the President . . . while in effect voicing only a personal view that might ultimately be rejected by the courts. 10

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Homer Cummings, Rendition of Opinions on Constitutionality of Statutes: Federal Home Loan Bank Act, 39 Op. Atty Gen. 11, 1937 U.S. AG LEXIS 31, at *2, 7-9 (1937). In 1943, President Roosevelt initiated a controversy by raising constitutional objections upon signing an appropriations provision prohibiting the payment of salaries to specific named employees of federal agencies who had been deemed to be subversive. United States v. Lovett, 328 U.S. 303, 313 (1946). The Executive enforced the letter of the statute (by not paying the salary of the employees in question), but joined with the employees in a legal attack upon the constitutionality of the relevant provision. When the case came before the Supreme Court, an attorney was permitted to appear on behalf of Congress, as amicus curiae, to defend the statute against the combined assault. Civiletti, 1980 OLC LEXIS 8, at *17-18. The Supreme Court held that the provision was an unconstitutional bill of attainder. 328 U.S. at 318. The Office of Legal Counsel has described Lovett as a separation of powers case. See, e.g., Olson, 1984 OLC LEXIS 42, at *37, n.5. President Trumans seizure of steel plants during the Korean War prompted the Supreme Court to address the Presidents limited authority to act contrary to a federal statute. Justice Jacksons concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), explained: When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he 11

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can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. . . . Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system. Id. at 637-38 (Jackson, J., concurring). Several years later, President Eisenhower removed a member of the War Claims Commission despite a statutory directive that members would serve as long as the Commission existed. The Solicitor General argued that the provision violated the Presidents appointment power, but the Court held that the provision was constitutional. Wiener v. United States, 357 U.S. 349, 356 (1958). In sum, from the ratification of the Constitution through the 1950s, DOJ rarely argued in litigation that a federal law was unconstitutional, and never did so in a case that did not involve the separation of powers. C. President Kennedy to President Carter

The first case in which the Executive Branch argued in litigation that a federal law that did not implicate the separation of powers was unconstitutional was Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 959 (4th Cir. 1963). See Olson, 1984 OLC LEXIS 42, at *30, n.2. DOJ intervened in a lawsuit that alleged that hospitals that received federal funding and that provided separate but equal services to African-Americans violated equal protection. The previous year, in Bailey v. Patterson, 369 U.S. 31 (1962), the Supreme Court stated that state12

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sponsored racial discrimination was not only unconstitutional but was foreclosed as a litigable issue. Id. at 33. The court of appeals noted that the governments intervention to argue against the constitutionality of a federal statute was unusual[], 323 F.2d at 962, and held that the hospitals had violated the Constitution. Id. at 967-70. Simkins, however, does not support the DOJ decision to challenge DOMA because it involved a patently unconstitutional provision, whereas Attorney General Holder has acknowledged that the arguments that DOJ made in defense of DOMA for over a decade are reasonable, and that there is substantial circuit court authority applying rational basis review to sexualorientation classifications. DOMA letter at 1-2. The Nixon administration featured a prime example of the Executive Branch defending a federal law despite the Presidents doubts about its constitutionality. In Oregon v. Mitchell, 400 U.S. 112 (1970), the Solicitor General defended the constitutionality of a provision of the Voting Rights Act Amendments of 1970 that lowered the minimum voting age to eighteen despite previous public statements by President Nixon and the Attorney General questioning its constitutionality. Executive Discretion, 92 Yale L.J. at 982, n.40. Two years later, in DaCosta v. Nixon, 55 F.R.D. 145 (E.D.N.Y. 1972), the court stated that a Presidential signing statement that declared that a provision of a statute was not binding upon the

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Executive Branch had no effect, as the statute effectively illegalized the pursuit of an inconsistent executive or administration policy. Id. at 146. The longstanding Executive Branch practice concerning the defense of federal laws was reaffirmed under President Ford. In 1976, Assistant Attorney General Rex Lee stated in Senate testimony: The defense of statutes attacked on constitutional grounds is an important part of the Justice Departments work. There are essentially two situations in which the Department will not defend the constitutionality of a statute. The first situation involves those cases in which upholding the statute would have the effect of limiting the Presidents constitutional powers or prerogatives. . . . The second situation . . . involves cases where the Attorney General believes . . . that a law is so patently unconstitutional that it cannot be defended. Such a situation is thankfully most rare. Drew S. Days III, In Search of the Solicitor Generals Clients: A Drama with Many Characters, 83 Ky. L.J. 485, 500 (1994) (quoting 94th Cong. 10 (1976)).6 As noted previously, even under the Attorney Generals reading of the law, DOMA is not patently unconstitutional. In 1979, the Carter administration attacked a patently unconstitutional provision requiring the Army to sell surplus arms at cost only to NRA members as part of a marksmanship program. Gavett v. Alexander, 477 F. Supp. 1035 (D.D.C. 1979). Unlike the present litigation, DOJ determined that reasonable arguments

DOJs argument in Buckley v. Valeo, 424 U.S. 1 (1976), that congressional appointments to the FEC violated the Appointments Clause fell within the first category. 14

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could not be advanced to defend the statute, and Congress declined to defend it. The court concluded that the provision was clearly unconstitutional and stated: It is reasonable to assume that the Executive Branch and the Congress would not have failed to defend the instant law against constitutional attack without the weightiest of reasons, that is, because they or at a minimum the Executive were convinced that a reasonable argument in support of constitutionality could not be made. Id. at 1043-44. This gives further support to the longstanding Executive Branch recognition that the failure to defend a federal law should be exceedingly rare. The following year, an Attorney General opinion highlighted the deleterious effects of executive non-defense of federal laws: [T]he Attorney General must scrutinize with caution any claim that he or any other executive officer may decline to defend or enforce a statute whose constitutionality is merely in doubt. Any claim by the Executive to a power of nullification, even a qualified power, can jeopardize the equilibrium established by our constitutional system. Benjamin R. Civiletti, Constitutionality of Congress Disapproval of Agency Regulations By Resolutions Not Presented to the President, 4 Op. O.L.C. (Vol. A) 21, 43 Op. Atty Gen. 231, 1980 OLC LEXIS 6, at *19-20 (1980). The decision to challenge DOMAs constitutionality despite the existence of reasonable arguments in its defense, and substantial circuit court authority against the governments position, DOMA letter at 1-2, stands in stark contrast to a June 1980 Office of Legal Counsel opinion concerning a law raising Appointments Clause issues that stated, [w]e think that an additional, plausible argument could 15

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be made that would permit a court to uphold the statute. Given the Departments duty to defend the constitutionality of statutes except in exceptional circumstances, it may well be appropriate to bring this argument to the courts attention. Leon Ulman, Constitutionality of Legislation Establishing the Cost Accounting Standards Board, 4 Op. O.L.C. (Vol. B) 697, 1980 OLC LEXIS 75, at *3 (1980). An additional 1980 Attorney General opinion further reiterated the duty to defend, stating, when the Attorney General is confronted with [a possibly unconstitutional federal law], it is almost always the case that he can best discharge the responsibilities of his office by defending and enforcing the Act of Congress. Civiletti, 1980 OLC LEXIS 8, at *2-3. The opinion noted that almost all of the legal authority dealing with this question . . . deal[s] with separation of powers issues, which is no accident. Id. at *4-5. The opinion also stated, I do not believe that the prerogative of the Executive is to exercise free and independent judgment on constitutional questions presented by Acts of Congress. Id. at *1011. Under President Carter, DOJ declined to defend a provision of the Public Broadcasting Act of 1967 that prohibited noncommercial television stations from editorializing, endorsing, or opposing candidates for public office, asserting that no reasonable arguments could be advanced despite the strong objection of the

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Office of Legal Counsel. Olson, 1984 OLC LEXIS 42, at *30, n.2. This drew criticism as reflecting an improper political decision: [T]he Executive clearly expanded the scope of his authority not to defend federal laws on constitutional grounds by declining to defend the statute. . . . This was . . . not a clearly unconstitutional statute for which a defense would conflict with the Presidents oath of office. Instead, the executive branch made a political decision and invited the court to invalidate the statute by presenting no arguments in its defense. Executive Discretion, 92 Yale L.J. at 974-76. Under President Reagan, DOJ defended the provision, which the Supreme Court ultimately invalidated by a 5-4 vote. FCC v. League of Women Voters of California, 468 U.S. 364 (1984). The Carter administrations conclusion that no reasonable arguments could be advanced in League of Women Voters is markedly different than Attorney General Holders admission that reasonable arguments supporting DOMA can be offered, and that there is substantial circuit court authority applying rational basis review to sexual-orientation classifications. See DOMA letter at 1-2. League of Women Voters also demonstrates that shifting positions from one administration to the next (or during one administration) concerning the defense of federal laws that do not implicate the separation of powers undermines DOJs credibility and

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illustrates the wisdom of the longstanding practice of defending laws, such as DOMA, for which reasonable arguments can be made.7 In sum, [f]rom 1787 to 1974, the Department of Justice failed to defend the constitutionality of a statute in only four instances. Miller & Bowman, 40 Ohio St. L.J. at 55. Executive Branch policy and practice in the 1960s and 1970s recognized two rare exceptions to the general rule that federal laws should be defended in court, neither of which applies to litigation concerning DOMA. D. President Reagan

The Reagan administration further reaffirmed the duty of the Executive Branch to defend laws for which reasonable arguments can be made, at least when the separation of powers is not implicated. In April 1981, Attorney General William Smith stated, the Department has the duty to defend an Act of Congress whenever a reasonable argument can be made in its support, even if the Attorney General and the lawyers examining the case conclude that the argument may ultimately be unsuccessful in the courts. Letter from Attorney General Smith to Senators Thurmond and Biden (Apr. 6, 1981), quoted in Executive Discretion, 92 Yale L.J. at 976, n.21.

See also Adolph Coors Co. v. Brady, 944 F.2d 1543, 1546 (10th Cir. 1991) (DOJ asserted that liquor labeling and advertising provisions violated the First Amendment but later changed course and argued in favor of the provisions constitutionality). 18

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A 1984 Office of Legal Counsel opinion stated that Attorneys General have generally construed [the obligation imposed by the Take Care Clause] to include the enforcement and the defense in court of laws enacted by Congress irrespective of questions which have been or might be raised regarding their constitutionality. Olson, 1984 OLC LEXIS 42, at *26. As such, [t]he Executives duty faithfully to execute the law . . . result[s] in all but the rarest of situations in the Executives enforcing and defending laws enacted by Congress. Id. at *27-28. The opinion discussed the two exceptions to this general rule noted above. Id. at *29-31. First, most instances in which the Executive Branch has declined to enforce (or has affirmatively challenged) federal statutes involved provisions that usurp executive authority and therefore weaken the Presidents constitutional role. Id. at *31. Second, there is a category of cases involv[ing] statutes believed by the Executive to be so clearly unconstitutional as to be indefensible but which do not trench on separation of powers. Refusals to execute or defend statutes based upon a determination that they meet these criteria are exceedingly rare. Id. at *29-30. The opinions research uncovered only three documented situations of this nature in the previous two centuries of constitutional history: Simkins, League of Women Voters, and DOJs decision in 1981 to not prosecute the mailing of non-deceptive

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abortion advertisements. Id. at *30, n.2. As explained previously, this limited historical precedent does not support DOJs decision to challenge DOMA.8 Consistent with past practice, President Reagans DOJ attacked the constitutionality of provisions that were considered to violate the separation of powers. See, e.g., Morrison v. Olson, 487 U.S. 654 (1988); Bowsher v. Synar, 478 U.S. 714 (1986); INS v. Chadha, 462 U.S. 919 (1983); In re Koerner, 800 F.2d 1358 (5th Cir. 1986); In re Benny, 812 F.2d 1133 (9th Cir. 1986). One of the strongest rebukes of an Executive Branch assertion of the authority to disregard a federal statute based on constitutional concerns comes from a 1988 panel decision from this Court. President Reagan signed the Competition in Contracting Act but objected to provisions that he believed gave a legislative officer executive power, and the Attorney General informed Congress that the Executive Branch would not implement the provisions. The panel opinion explained: [T]he government reasserts the position . . . [that] the Presidents duty to uphold the constitution and faithfully execute the laws empowers the President to interpret the Constitution and disregard laws he deems unconstitutional. Because we regard this position as utterly at odds with the texture and plain language of the Constitution, and with nearly two centuries of judicial precedent, we must reject the governments contention. . . .

The exercise of prosecutorial discretion in criminal cases is not analogous to the non-defense of DOMA. In addition, Gavett appears to fall within this category as well but, as noted previously, provides no support for the DOMA letter. 20

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A more established practice of the executive branch is to decline to defend a challenged statute in court, although this, too, raises a constitutional issue. . . . To construe [the] duty to faithfully execute the laws as implying the power to forbid their execution perverts the clear language of the take care clause: To execute a statute . . . emphatically does not mean to kill it. Lear Siegler, 842 F.2d at 1118-25;9 see also Ameron, Inc. v. U.S. Army Corps of Engrs, 787 F.2d 875 (3d Cir. 1986) (similar litigation). E. Presidents Bush, Clinton, and Bush

The three administrations that preceded the Obama administration continued to reaffirm DOJs obligation to defend federal laws in circumstances like the present case. Concerning the proposition that the President may refuse to enforce a provision that he considers to be unconstitutional, a 1990 Office of Legal Counsel opinion emphasize[d] . . . that there is little judicial authority concerning this question, and the position remains controversial. William P. Barr, Issues Raised by Foreign Relations Authorization Bill, 14 Op. O.L.C. 37, 1990 OLC LEXIS 51, at *20 (1990). The opinion stated that, at least in the context of legislation that infringes the separation of powers, the President has the constitutional authority to refuse to enforce unconstitutional laws. Id. at *29-30; see also Metro Broad., Inc.

This Court later concluded that the plaintiff was not a prevailing party and withdrew the section of the panel opinion dealing with attorneys fees, 893 F.2d 205, 208 (9th Cir. 1989) (en banc), but the panels discussion of the Executive Branchs constitutional obligations maintains strong persuasive weight. 21

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v. FCC, 497 U.S. 547 (1990) (the Solicitor General asserted that FCC minority ownership policies, which were insulated from Presidential amendment by statute, violated the Equal Protection Clause; there were separation of powers implications because Congress intended to make an agency independent of Presidential control); Am. Foreign Serv. Assn v. Garfinkel, 490 U.S. 153 (1989) (DOJ argued that a law restricting the Presidents ability to keep national security information confidential violated the Presidents constitutional authority). Those instances are far different than the present litigation, which does not involve separation of powers concerns. Additionally, a concurring opinion in Freytag v. Commissioner, 501 U.S. 868 (1991)a case that considered whether a federal law violated the separation of powersstated that the means to resist legislative encroachment upon [Executive Branch] power provided by the Constitution include the power to veto encroaching laws . . . or even to disregard them when they are unconstitutional. Id. at 906 (Scalia, J., concurring). This quote provides no support for an Executive decision to fail to defend federal statutes where, as here, separation of powers concerns are not involved. President George H.W. Bush refused to defend cable must carry provisions enacted over his veto, Turner Broadcasting System, Inc. v. FCC, 819 F. Supp. 32 (D.D.C. 1993), but the Clinton administration defended the provisions. 22

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Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180 (1997). In 1994, Solicitor General Drew S. Days III explained that Executive Branch defense of federal laws for which reasonable arguments can be made serves important interests: Solicitors General have not risen to the defense of the acts of Congress in two situations. First, Solicitors General have always sided with the President in disputes over the constitutionality of congressional attempts to circumscribe presidential power. . . . Second, Solicitors General have not attempted to defend patently unconstitutional laws. . . . The constitutionality of acts of Congress is to be defended in all cases, unless no professionally respectable argument can be made in defense of the statute. . . . [The traditional practice] fosters comity between the Executive and Legislative Branches in two important ways. First, . . . [it] ensures that the government speaks with one voice in the Supreme Court while at the same time reinforcing the Executive Branchs status as the litigating arm of the government. Second, the policy prevents the Executive Branch from using litigation as a form of post-enactment veto of legislation that the current administration dislikes. Days, 83 Ky. L.J. at 499-500 & n.71, 502. Consistent with past practice, the Clinton administration disregarded or failed to defend provisions that raised separation of powers concerns or were patently unconstitutional. See, e.g., Dickerson v. United States, 530 U.S. 428 (2000) (DOJ refused to defend a law that it believed was a patently unconstitutional attempt to legislatively overturn Miranda v. Arizona, 384 U.S. 436 (1966)); Hechinger v. Metro Washington Airports Auth., 36 F.3d 97 (D.C. Cir. 1994) (DOJ argued that a provision violated the Appointments Clause). The 23

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decision to challenge DOMAs constitutionality does not fit within either of these categories. A 2001 article by former Solicitor General Seth Waxmanupon which Attorney General Holders letter concerning DOMA reliedexplains the importance of the DOJs longstanding practice of defending federal statutes that do not raise separation of powers concerns: [T]he Department of Justice defends Acts of Congress in all but the rarest of cases. . . . [T]he Solicitor General generally defends a law whenever professionally respectable arguments can be made in support of its constitutionality. . . . Vigorously defending congressional legislation serves the institutional interests and constitutional judgments of all three branches. It ensures that proper respect is given to Congresss policy choices. It preserves for the courts their historic function of judicial review. . . . Solicitors General . . . do not attempt to reach our own best view of a statutes constitutionality; rather, they try to craft a defense of the law in a manner that can best explain the basis on which the political branches presumed constitutional judgment must have been predicated. Seth P. Waxman, Defending Congress, 79 N.C. L. Rev. 1073, 1078, 1084-86 (2001).10 The Presidency of George W. Bush featured a prominent example of the Executive Branch defending an Act of Congress that did not impose separation of

The article asserted that DOJs arguments in Metro Broadcasting and Turner Broadcasting created a new exception for cases in which it is manifest that the President has concluded that the statute is unconstitutional, id. at 1083-84, but those cases were part of the larger struggle between Congress and the President over control of independent agencies and, in any event, the relevant Attorney General and Office of Legal Counsel opinions do not recognize such an exception. 24

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powers concerns despite the Presidents own misgivings about its constitutionality. In McConnell v. FEC, 540 U.S. 93 (2003), DOJ defended the Bipartisan Campaign Reform Act of 2002 despite the fact that President Bushs signing statement stated that [c]ertain provisions present serious constitutional concerns. President George W. Bush, Statement on Signing the Bipartisan Campaign Reform Act of 2002 (Mar. 27, 2002). One article summarized the past half century of Executive Branch practice by stating: [F]rom the start of the Nixon administration to the end of the George W. Bush administration, the Supreme Court invalidated roughly eighty federal statutes. . . . There can be little question that executive lawyers seriously doubted the constitutionality of a good number of these statutesor that the president would have too had he been consulted. But several presidents and their administrations nonetheless enforced and defended the statutes in question. Meltzer, 61 Duke L.J. at 1198. II. The Executive Branch Decision to Challenge DOMAs Constitutionality After Fifteen Years of Defending It Reflects an Unprecedented Reading of the Presidents Take Care Obligation. Attorney General Holders letter explaining why DOJ would no longer defend DOMA breaks from the historical precedent outlined above. First and foremost, unlike the vast majority of instances in which the President has defied, challenged, or failed to defend a federal law, DOMA raises no separation of powers concerns. In addition, the Attorney Generals letter admits that, even under 25

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the Attorney Generals view of DOMA, a reasonable argument for Section 3s constitutionality may be proffered along the lines of what the DOJ had set forth in prior cases. DOMA letter at 2. For example, in April 2010, DOJ filed a brief arguing that DOMA is constitutional under the rational basis standard applied by the First Circuit. Memorandum Supporting Motion to Dismiss, at 12-15, Massachusetts v. U.S. Dept. of Health & Human Servs., Case No. 1:09-cv-11156JLT, Doc. 47 (D. Mass. Apr. 30, 2010). The Attorney Generals letter did not refute the historical fact that there is no tradition of Presidents failing to defend any and every law they believe contains unconstitutional provisions when reasonable arguments can be made in their defense. Additionally, the reference in the Attorney Generals letter to substantial circuit court authority applying rational basis review in cases where sexual orientation discrimination is alleged is an understatement. See DOMA letter at 1. Numerous courts of appeal have repeatedly rejected the argument upon which the Executive Branch based its decision to no longer defend DOMAs constitutionality (that sexual orientation should be considered a suspect class). See Brief of Intervenor-Defendant-Appellant at 26, n.6, and cases cited therein. The anomalous nature of DOJs challenge to DOMAs constitutionality is further underscored by the fact that the Obama administration has not sought to broaden or alter the historically established standards for failing to defend a federal 26

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law, but rather has professed adherence to the historical practice of past administrations. For example, a June 2009 Office of Legal Counsel opinion explained that a determination that a duly enacted statute unconstitutionally infringes on Executive authority must be well-founded. David J. Barron, Constitutionality of Section 7054 of the Fiscal Year 2009 Foreign Appropriations Act, 2009 OLC LEXIS 6, at *8 (2009) (quoting 74 Fed. Reg. 10669 (Mar. 9, 2009)). In addition, Attorney General Holder stated during his confirmation hearing that [t]he duty of the Justice Department is to defend statutes that have been passed by Congress, unless there is some very compelling reason not to. Transcript, Senate Confirmation Hearings: Eric Holder, Day One, Jan. 16, 2009.11 Similarly, Elena Kagan (now a Supreme Court Justice) stated during her hearing to become the Solicitor General: [T]he Solicitor General has critical responsibilities to Congress - most notably, the vigorous defense of the statutes of this country against constitutional attack. Traditionally, the Solicitor General has defended any federal statute in whose support any reasonable argument can be made, outside of a very narrow band of cases involving the separation of powers. I pledge to continue this strong presumption that the Solicitor Generals office will defend each and every statute enacted by this body.12

Available at http://www.nytimes.com/2009/01/16/us/politics/16textholder.html?_r=1&pagewanted=all. 12 Testimony of Elena Kagan: Opening Statement, Feb. 10, 2009, available at http://www.judiciary.senate.gov/hearings/testimony.cfm?id=e655f9e2809e547686 2f735da14362b2&wit_id=e655f9e2809e5476862f735da14362b2-1-2. 27

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More recently, in Zivotofsky v. Clinton, 132 S. Ct. 1421 (2012), the Supreme Court concluded that the political question doctrine did not bar litigation in which the Solicitor General argued that a federal statute violated the Presidents constitutional authority to recognize foreign governments. See also Virginia A. Seitz, Unconstitutional Restrictions on Activities of the Office of Science and Technology Policy in Section 1340(A) of the Department of Defense and Full-Year Continuing Appropriations Act, 2011, 2011 OLC LEXIS 3, at *1-2, 8 (2011) (concluding that a statutory section was unconstitutional to the extent that it limited the Presidents authority to conduct foreign relations). This type of executive action protecting President Obamas assertion of constitutional authority falls within the historical practice outlined above (unlike the decision to challenge DOMA) and does not signal a broader move to expand executive authority beyond its historically recognized boundaries. CONCLUSION Due to the historical landscape addressed above, and the fifteen year history of DOJs defense of DOMA, the decision to change course and challenge DOMAs constitutionality should be viewed as an extreme and unprecedented deviation from the historical norm and, as such, the persuasive weight afforded to DOJs brief should be less than in the typical case.

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Respectfully Submitted on June 11, 2012, /s/ Jay Alan Sekulow Jay Alan Sekulow Counsel of Record Stuart J. Roth American Center for Law & Justice 201 Maryland Ave., NE Washington, DC 20002 Phone: (202) 546-8890 Fax: (202) 546-9309

CeCe Heil* Robert W. Ash Erik Zimmerman* American Center for Law & Justice 1000 Regent University Drive Virginia Beach, VA 23464 Phone: (757) 226-2489 Fax: (757) 226-2836

Counsel for Amici * - Not admitted to this Courts bar

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Certificate of Compliance With Type-Volume Limitation, Typeface Requirements, and Type Style Requirements 1. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because this brief contains 6,922 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Microsoft Word 2007 in 14-point Times New Roman type. /s/ Jay Alan Sekulow Jay Alan Sekulow American Center for Law & Justice 201 Maryland Ave., NE Washington, DC 20002 Phone: (202) 546-8890 Fax: (202) 546-9309 Counsel for Amici June 11, 2012.

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CERTIFICATE OF SERVICE I hereby certify that, on June 11, 2012, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system. I also certify that all other participants in the case are registered CM/ECF users, and service will be accomplished by the appellate CM/ECF system. /s/ Jay Alan Sekulow Jay Alan Sekulow American Center for Law & Justice 201 Maryland Ave., NE Washington, DC 20002 Phone: (202) 546-8890 Fax: (202) 546-9309 Counsel for Amici June 11, 2012.

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Exhibit A

Attorney General Eric Holder, Letter from the Attorney General to Congress on Litigation Involving the Defense of Marriage Act, Feb. 23, 2011

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Department of Justice
Office of Public Affairs FOR IMMEDIATE RELEASE Wednesday, February 23, 2011

Letter from the Attorney General to Congress on Litigation Involving the Defense of Marriage Act
WASHINGTON The Attorney General sent the following letter today to Congressional leadership to inform them of the Departments course of action in two lawsuits, Pedersen v. OPMand Windsor v. United States, challenging Section 3 of the Defense of Marriage Act (DOMA), which defines marriage for federal purposes as only between a man and a woman. A copy of the letter is also attached.

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, i 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 Branchs 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 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 2010, 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. 3:10-cv-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. ii 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 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 individuals 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). iii Second, while sexual orientation carries no visible badge, a growing scientific consensus accepts that sexual orientation is a characteristic that is immutable, seeRichard A. Posner, Sex and Reason 101 (1992); it is undoubtedly unfair to require sexual orientation to be hidden from view to avoid discrimination, seeDont Ask, Dont 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 Dont Ask, Dont Tell indicate that the political process is not closed entirelyto 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). 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 Dont Ask, Dont Tell), in community practices and attitudes, in case law (including the Supreme Courts holdings in Lawrenceand 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 Dont Ask, Dont 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 Bowersin Lawrence v. Texas, 538 U.S. 558 (2003). iv 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 recent social science understandings. v 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, Lawrenceand Romer. vi But neither of those decisions reached, let alone resolved, the

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level of scrutiny issue because in both the Court concluded that the laws could not even survive the more deferential rational basis standard.

In reviewing a legislative classification under heightened scrutiny, the government must establish that the classification is substantially related to an 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 DOMAs passage contains discussion and debate that undermines any defense under heightened scrutiny. The record contains numerous expressions reflecting moral disapproval of gays and lesbians and their intimate and family relationships precisely the kind of stereotype-based thinking and animus the Equal Protection Clause is designed to guard against. vii See Cleburne, 473 U.S. at 448 (mere negative attitudes, or fear are not permissible 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 same-sex 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 Windsorand 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 Executives 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 laws 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 duly-enacted 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 Departments lawyers to immediately inform the district courts in Windsorand Pedersenof the Executive Branchs 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 same-sex couples whose marriages are legally recognized 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 3s 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 Presidents 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 Windsorand Pedersencases 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 ______________________________________
iDOMA 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. ii

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).

iiiWhile significant, that history of discrimination is different in some respects from the discrimination that burdened African-Americans 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 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 individuals 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)). iv See Equality Foundation v. City of Cincinnati, 54 F.3d 261, 26667 & 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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v See, e.g., Lofton v. Secretary of the Dept 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 well-adjusted as children raised by heterosexual parents. vi

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).

vii See, e.g.,H.R. Rep. at 1516 (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 marriageprocreation and childrearingare in accord with nature and hence have a moral component); id. at 31 (favorably citing the holding in Bowersthat 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 Romerthat [t]his Court has no business . . . pronouncing that animosity toward homosexuality is evil).

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