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No. 12-2335(L)
No. 12-2435(Con)
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
EDITH SCHLAIN WINDSOR, IN HER OFFICIAL CAPACITY AS EXECUTOR OF THE ESTATE OF THEA CLARA SPYER Plaintiff-Appellee, v. UNITED STATES OF AMERICA, Defendant-Appellant, and BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES, Intervenor-Defendant-Appellant. On Appeal from the United States District Court for the Southern District of New York BRIEF FOR DEFENDANT-APPELLANT THE BIPARTISAN LEGAL ADVISORY GROUP OF THE UNITED STATES HOUSE OF REPRESENTATIVES 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 UNITED STATES HOUSE OF REPRESENTATIVES 219 Cannon House Office Building Washington, D.C. 20515 (202) 225-9700 August 10, 2012 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 IntervenorDefendant-Appellant the Bipartisan Legal Advisory Group of the United States House of Representatives

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TABLE OF CONTENTS TABLE OF AUTHORITIES ................................................................................... iii JURISDICTIONAL STATEMENT ..........................................................................1 STATEMENT OF THE ISSUES...............................................................................1 STATEMENT OF THE FACTS AND THE CASE..................................................2 DOMAS BACKGROUND.......................................................................................5 DOMAs Legislative Branch History ........................................................................7 DOMAs Executive Branch History ........................................................................12 SUMMARY OF ARGUMENT ...............................................................................13 ARGUMENT ...........................................................................................................16 I. Because Ms. Windsors Standing Turns on Whether New York Law Recognized Foreign, Same-Sex Marriages When Ms. Spyer Died, This Court Must Either Certify That Question to the New York Court of Appeals or Predict How That Court Would Resolve the Question ...................................................................................................17 Binding Supreme Court Precedent Holds That the Traditional Definition of Marriage Does Not Violate Equal Protection ..........................20 Sexual Orientation Classifications Are Subject to Deferential Rational Basis ReviewNot the District Courts Novel Intensified Scrutiny ....................................................................................24 A. Eleven Circuits Hold That Sexual Orientation Classifications Are Subject to Rational Basis Review While None Applies Heightened Scrutiny .....................................................24 1. 2. Gays and Lesbians Do Not Lack Political Power .....................27 Whether a Married Couple Is of the Opposite Sex Is Relevant to the Governments Interests in Recognizing Marriage ...............................................................29

II. III.

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3. 4. B.

Sexual Orientation Is Not an Immutable Characteristic ............................................................................29 The Histories of Discrimination Based on Race, Ethnicity, Sex, and Legitimacy are Different ...........................32

The District Court Erred by Applying a Novel Form of Intensified Scrutiny to DOMA ........................................................34

IV. DOMA Easily Passes Rational Basis Review ..................................................36 A. Uniquely Federal Interests Support DOMA .......................................39 1. 2. 3. Maintaining a Uniform Federal Definition of Marriage ....................................................................................39 Preserving the Public Fisc and Previous Legislative Judgments..................................................................................43 Caution in Facing the Unknown Consequences of a Novel Redefinition of a Foundational Social Institution and Preservation of Each Sovereigns Ability to Choose Its Own Definition .......................................45

B.

Common Federal-State Interests: Congress Rationally Sought to Encourage Responsible Procreation ...................................48 1. 2. DOMA Rationally Focuses on Opposite-Sex Couples in Subsidizing the Begetting and Raising of Children..............51 DOMA Rationally Encourages and Subsidizes the Raising of Children by Their Own Biological Mothers and Fathers ................................................................................53 DOMA Rationally Encourages Childrearing in a Setting with Both a Mother and a Father ..................................55

3. IV.

ANY REDEFINITION OF MARRIAGE SHOULD BE LEFT TO THE DEMOCRATIC PROCESS..................................................................56

CONCLUSION ........................................................................................................58 CERTIFICATE OF COMPLIANCE WITH RULE 32(a)

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TABLE OF AUTHORITIES Cases Able v. United States, 155 F.3d 628 (2d Cir. 1988) .................................................26 Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982)..................................... 6, 23, 49 Adams v. Howerton, 486 F. Supp. 1119 (C.D. Cal. 1980) ................................. 6, 23 Andersen v. King Cnty., 138 P.3d 963 (Wash. 2006) ..............................................49 Assn of Residential Res. in Minn., Inc. v. Gomez, 51 F.3d 137 (8th Cir. 1995).....................................................................................................44 Baehr v. Lewin, 852 P.2d 44 (Haw. 1993) .................................................................7 Baker v. Nelson, 409 U.S. 810 (1972) .................................................... 4, 14, 20, 21 Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971) .....................................................20 Bd. of Educn of City of Okla. City v. Natl Gay Task Force 470 U.S. 903 (1985) ..................................................................................................................26 In re Balas, 449 B.R. 567 (Bankr. C.D. Cal. 2011) .................................................33 Ben-Shalom v. Marsh, 881 F.2d 454 (7th Cir. 1989) ................................. 25, 27, 29 Bowen v. Gilliard, 483 U.S. 587 (1987) ..................................................................42 Bowen v. Owens, 476 U.S. 340 (1986) ....................................................................45 Citizens for Equal Prot. v. Bruning, 455 F.3d 859 (8th Cir. 2006) ................. passim City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985)...................... passim City of Dallas v. Stanglin, 490 U.S. 19 (1989) ........................................................36 Clark v. Jeter, 486 U.S. 456 (1988) .........................................................................34 Conaway v. Deane, 932 A.2d 571 (Md. 2007) ........................................................49 Cook v. Gates, 528 F.3d 42 (1st Cir. 2008) .............................................................25 Craig v. Boren, 429 U.S. 190 (1976) .......................................................................55 iii

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Dandridge v. Williams, 397 U.S. 471 (1970) ..........................................................43 Davis v. Prison Health Servs., 679 F.3d 433 (6th Cir. 2012) ..................................25 Dean v. Dist. of Columbia, 653 A.2d 307 (D.C. 1995) .............................................6 Equality Found. Of Greater Cincinnati, Inc. v. City of Cincinnati, 128 F.3d 289 (6th Cir. 1997) ..............................................................................43 FCC v. Beach Commcns, Inc., 508 U.S. 307 (1993) ................................. 36, 37, 38 Frontiero v. Richardson, 411 U.S. 677 (1973) ........................................................30 Godfrey v. Spano, 920 N.E.2d 328 (N.Y. 2009) ......................................................18 Golinski v. U.S. Office of Pers. Mgmt., 824 F. Supp. 2d 968 (N.D. Cal. 2012) .................................................................................................33 Hassan v. Wright, 45 F.3d 1063 (7th Cir. 1995) .....................................................44 Heller v. Doe, 509 U.S. 312 (1993) .........................................................................36 Helvering v. Davis, 301 U.S. 619 (1937).................................................................42 Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006) ................................. 18, 48, 54, 57 Hicks v. Miranda, 422 U.S. 332 (1975) ............................................................ 21, 23 High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563 (9th Cir. 1990)........................................................................................ 25, 27, 30 Highland Capital Mgmt. LP v. Schneider, 460 F.3d 308 (2d Cir. 2006) ................18 Holloway v. Arthur Andersen & Co., 566 F.2d 659 (9th Cir. 1977) .......................31 Hunt v. Ake, No. 04-1852 (M.D. Fla. Jan. 20, 2005) ...............................................13 Jimenez v. Weinberger, 417 U.S. 628 (1974) ..........................................................37 Johnson v. Johnson, 385 F.3d 503 (5th Cir. 2004) ..................................................25 Johnson v. Robison, 415 U.S. 361 (1974) ...............................................................50 In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004) ............................... 3, 13, 33

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Lawrence v. Texas, 539 U.S. 558 (2003) ......................................................... passim League of Women Voters of Nassau Cnty. v. Nassau Cnty. Bd. of Supervisors, 737 F.2d 155 (2d Cir. 1984) ..........................................................22 Lofton v. Secy of Dept of Children & Family Servs., 358 F.3d 804 (11th Cir. 2004)............................................................................................ 26, 54 Lui v. Holder, No. 11-cv-01267 (C.D. Cal. Sept. 28, 2011)....................................33 Lujan v. Defenders of Wildlife, 504 U.S 555 (1992) ...............................................18 Lyng v. Castillo, 477 U.S. 635 (1986) .............................................................. 25, 26 Mandel v. Bradley, 432 U.S. 173 (1977) .......................................................... 21, 22 Marsh v. Chambers, 463 U.S. 783 (1983) ...............................................................45 Mass. Bd. of Ret. v. Murgia, 427 U.S. 307 (1976) ..................................................25 Massachusetts v. U.S. Dept of HHS, 682 F.3d 1 (1st Cir. 2012).................... passim Mathews v. Diaz, 426 U.S. 67 (1976) ......................................................................37 Matthews v. Gonzales, 171 F. Appx 120 (9th Cir. 2006) .......................................17 McConnell v. Nooner, 547 F.2d 54 (8th Cir. 1976) .................................................22 Murphy v. Ramsey, 114 U.S. 15 (1885) ...................................................................10 Natl Gay Task Force v. Bd. of Educn of City of Okla. City, 729 F.2d 1270 (10th Cir. 1984) ..........................................................................26 New State Ice Co. v. Liebmann, 285 U.S. 262 (1932) .............................................46 Nguyen v. INS, 533 U.S. 53 (2001) ..........................................................................53 Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193 (2009) ............. 16, 19 Padula v. Webster, 822 F.2d 97 (D.C. Cir. 1987) ...................................................26 Pedersen v. Office of Pers. Mgmt., No. 10-cv-1750, 2012 WL 3113883 (D. Conn. July 31, 2012).....................................................................................33 Penguin Grp. (USA) Inc. v. Am. Buddha, 640 F.3d 497(2d Cir. 2011) ...................19 v

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Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012) ................................................ 25, 33 Plyler v. Doe, 457 U.S. 202 (1982)................................................................... 30, 44 Price-Cornelison v. Brooks, 524 F.3d 1103 (10th Cir. 2008) .................................26 Regan v. Taxation With Representation, 461 U.S. 540 (1983)................................51 Regan v. Time, Inc., 468 U.S. 641 (1984)................................................................16 Romer v. Evans, 517 U.S. 620 (1996) .............................................................. 24, 25 Rostker v. Goldberg, 453 U.S. 57 (1981) ................................................................17 San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973) ..............................25 Santosky v. Kramer, 455 U.S. 745 (1982) ...............................................................54 Schweiker v. Wilson, 450 U.S. 221 (1981) ..............................................................37 Smelt v. Cnty. of Orange, 447 F.3d 673 (9th Cir. 2006) ............................... 2, 17, 56 Smelt v. Cnty. of Orange, 374 F. Supp. 2d 861 (C.D. Cal. 2005) ................ 2, 13, 33 Spina v. DHS, 470 F.3d 116 (2d Cir. 2006) .............................................................42 Stanley v. Illinois, 405 U.S. 645 (1972) ...................................................................54 Sullivan v. Bush, No. 04-21118 (S.D. Fla. Mar. 16, 2005)......................................13 Thomasson v. Perry, 80 F.3d 915 (4th Cir. 1996) ...................................................25 Tigner v. Texas, 310 U.S. 141 (1980) ......................................................................51 Torres-Barragan v. Holder, No. 09-cv-08564 (C.D. Cal. Apr. 30, 2010) ..............33 U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995) .......................................40 United States v. Carolene Products Co., 304 U.S. 144 (1938) ...............................33 United States v. Five Gambling Devices, 346 U.S. 441 (1953) ..............................17 United States v. Virginia, 518 U.S. 515 (1996) .......................................................55 USDA v. Moreno, 413 U.S. 528 (1973) ............................................................ 35, 37

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Vacco v. Quill, 521 U.S. 793 (1997) ........................................................................24 Vance v. Bradley, 440 U.S. 93 (1979) .....................................................................37 Vill. of Belle Terre v. Boraas, 416 U.S. 1 (1974) ....................................................38 Washington v. Glucksberg, 521 U.S. 702 (1997) ....................................................57 Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005) ........................ 13, 21, 23, 33 Woodward v. United States, 871 F.2d 1068 (Fed. Cir. 1989) .......................... 26, 30 Constitutional Provision N.Y. Const. art. 6, 3(b)(9) .....................................................................................19 Statutes 1 U.S.C. 7 ............................................................................................................1, 5 5 U.S.C. 8101(6) .....................................................................................................7 5 U.S.C. 8101(11) ...................................................................................................7 5 U.S.C. 8341(a) .....................................................................................................7 5 U.S.C. 8341(e) .....................................................................................................7 8 U.S.C. 1186a(h) ...................................................................................................7 I.R.C. 2(b)(2) ...........................................................................................................6 I.R.C. 7703(b) .........................................................................................................6 28 U.S.C. 1257(2) .......................................................................................... 20, 21 28 U.S.C. 1291 ........................................................................................................1 28 U.S.C. 1331 ........................................................................................................1 28 U.S.C. 1346(a)(1). ..............................................................................................1 28 U.S.C. 1738C .....................................................................................................7 38 U.S.C. 101(31) ...............................................................................................6, 7

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42 U.S.C. 416 ..........................................................................................................6 42 U.S.C. 1382c(d)(2) .............................................................................................6 N.Y. Comp. Codes R. & Regs. tit. 22, 500.27(a) .................................................18 Pub. L. No. 111-321, 124 Stat. 3515 .......................................................................57 Revenue Act of 1921, 42 Stat. 227 ............................................................................6 Rules & Regulation 2d Cir. R. 27.2 ..........................................................................................................19 H.R. Rule II.8, 112th Cong. (2011) ...........................................................................4 H.R. Rule I.11, 103rd Cong. (1993) ..........................................................................4 U.S. Dept of Labor, Final Rule, Family and Medical Leave Act of 1993, 60 Fed. Reg. 2180 (Jan. 6, 1995) ..........................................................................6 Other Authorities 142 Cong. Rec. 10468 (1996) (Sen. Nickles) ..........................................................40 142 Cong. Rec. 16796 (1996) (Rep. McInnis) ........................................................10 142 Cong. Rec. 16969 (1996) (Rep. Canady)............................................................8 142 Cong. Rec. 16970 (1996) (Rep. Hutchinson) ...................................................10 142 Cong. Rec. 17072 (1996) (Rep. Sensenbrenner) ................................................8 142 Cong. Rec. 17081 (1996) (Rep. Weldon) .........................................................11 142 Cong. Rec. 17093 (1996) ....................................................................................7 142 Cong. Rec. 22442 (1996) (Sen. Gramm) ..........................................................10 142 Cong. Rec. 22446 (1996) (Sen. Byrd) ..............................................................11 142 Cong. Rec. 22451 (1996) (Sen. Coats) .............................................................10 142 Cong. Rec. 22452 (1996) (Sen. Mikulski) ........................................................11

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142 Cong. Rec. 22454 (1996) (Sen. Burns) .............................................................10 142 Cong. Rec. 22459 (1996) ....................................................................................9 142 Cong. Rec. 22459 (1996) (Sen. Ashcroft) ........................................................40 142 Cong. Rec. 22467 (1996) ....................................................................................7 142 Cong. Rec. S10002 (daily ed. Sept. 6, 1996) (Sen. Lieberman).......................11 150 Cong. Rec. 4684 (2004) (Sen. Cornyn) ............................................................46 150 Cong. Rec. 14942 (2004) (Sen. Hatch) .............................................................46 150 Cong. Rec. 14949 (2004) (Sen. Frist) ...............................................................46 150 Cong. Rec. 14951 (2004) (Sen. Sessions) ........................................................46 150 Cong. Rec. 15318 (2004) (Sen. Inhofe) ............................................................40 150 Cong. Rec. 15444 (2004) (Sen. Smith) .............................................................46 150 Cong. Rec. H7896 (daily ed. Sept. 30, 2004) ...................................................12 150 Cong. Rec. S7879 (daily ed. July 9, 2004) (Sen. Hatch) ..................................12 150 Cong. Rec. S8008 (daily ed. July 13, 2004) (Sen. Sessions)............................12 152 Cong. Rec. 10058 (2006) (Sen. Talent) ............................................................46 32 Weekly Comp. Pres. Doc. 1891 (Sept. 30, 1996) .................................................7 Am. Psychol. Assn, Answers to Your Questions: For a Better Understanding of Sexual Orientation and Homosexuality, http://www.apa.org/topics/sexuality/orientation.aspx/ .......................................31 G. Andersson, et al., The Demographics of Same-Sex Marriages in Norway and Sweden, 43 Demography 79 (2006) ...............................................56 William Blackstone, Commentaries on the Laws of England .................................49 Br. for Respt, Lui v. Holder, No. 09-72068 (9th Cir. Apr. 29, 2010) ......................3 Br. for Respt, Torres-Barragan v. Holder, Nos. 08-73745 & 09-71226 (9th Cir. Aug. 12, 2010) ........................................................................................3 ix

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Br. of 133 House Members, Massachusetts v. U.S. Dept of HHS, Nos.10-2204, 10-2207 & 10-2214 (1st Cir. Nov. 3, 2011) ................................27 Br. of Amici Curiae 70 Employers, Massachusetts v. U.S. Dept of HHS., Nos. 10-2204, 10-2207 & 10-2214 (1st Cir. Nov. 3, 2011) ...............................28 Br. of Amici Curiae 70 Employers, Golinski v. U.S. Office of Pers. Mgmt., Nos. 12-15388 & 12-15409 (9th Cir. July 10, 2012) .............................28 George Chauncey, Why Marriage?: The History Shaping Todays Debate Over Gay Equality (2004) ......................................................................32 Council on Families in America, Marriage in America: A Report to the Nation (1995) ......................................................................................................10 Defense of Marriage Act: Hearing on H.R. 3396 Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 104th Cong. 32 (1996) (Rep. Sensenbrenner) ............................................................. 8, 10, 11, 12 Defense of Marriage Act: Hearing on S. 1740 Before the S. Comm. on the Judiciary, 104th Cong. (1996) ............................................................................12 Lisa Diamond, New Paradigms for Research on Heterosexual and Sexual-Minority Development, 32 J. of Clinical Child & Adolescent Psychol. 490 (2003) ............................................................................................32 Dan Eggen, The Influence Industry: Same-Sex Marriage Issue Shows Importance of Gay Fundraisers, Wash. Post (May 9, 2012), http://www.washingtonpost.com/politics/same-sex-marriage-debatemany-of-obamas-top-fundraisers-aregay/2012/05/09/gIQASJYSDU_story.html. .......................................................28 Letter from Andrew Fois, Asst. Atty Gen. to Sen. Hatch (July 9, 1996) ...............12 Letter from Andrew Fois, Asst. Atty Gen., to Rep. Canady (May 29, 1996)....................................................................................................12 Letter from Andrew Fois, Asst. Atty Gen., to Rep. Hyde (May 14, 1996)....................................................................................................12

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French National Assembly, Report Submitted on Behalf of the Mission of Inquiry on the Family and Rights of Children (No. 2832) (Jan. 25, 2006), English translation at http://www.preservemarriage.ca/docs/France_Report_on_the_Family_ Edited.pdf ..................................................................................................... 49, 50 Michelle Garcia & Andrew Harmon, Obamas Power Gays, Advocate.com, Oct. 24, 2011, http://www.advocate.com/news/dailynews/2011/10/24/obamas-power-gays ...............................................................28 Linda D. Garnets & Letitia Anne Peplau, A New Paradigm for Womens Sexual Orientation: Implications for Therapy, 24 Women & Therapy 111 (2001) ...........................................................................................................31 Gary J. Gates, Family Focus on LGBT Families F2 (Winter 2011), http://williamsinstitute.law.ucla.edu/wp-content/uploads/GatesBadgett-NCFR-LGBT-Families-December-2011.pdf ........................................52 Eugene Gressman et al., Supreme Court Practice (9th ed. 2007) ..........................21 Frank Newport, For First Time, Majority of Americans Favor Legal Gay Marriage, Gallup.com (May 20, 2011), http://www.gallup.com/poll/147662/first-time-majority-americansfavor-legal-gay-marriage.aspx. ...........................................................................27 H.R. Rep. No. 104-664 4-5 (1996), reprinted in 1996 U.S.C.C.A.N. 2905 ........................................................ passim Human Rights Campaign Lauds 2008 Election Results, Human Rights Campaign (Nov. 4, 2008), http://www.hrc.org/pressreleases/entry/human-rights-campaign-lauds-2008-election-results ..................28 Institute for American Values, Marriage and the Law: A Statement of Principles (2006) ................................................................................................49 Joslin v. New Zealand, No. 902/1999, in Report of the Human Rights Comm., Vol. II, U.N. Doc. A/57/40, 214 (2002) ...............................................50 M. Kalmijn, et al., Income Dynamics in Couples and the Dissolution of Marriage and Cohabitation, 44 Demography 159 (2007) .................................56

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Owen Keehnen, The Case for Gay Marriage: Talking with Why Marriage? Author George Chauncey, GLBTQ.com, 2004, http://www.glbtq.com/sfeatures/interviewgchauncey.html. ...............................33 Living Arrangements of Children Under 18 Years Old: 1960 to Present, U.S. Census Bureau, available at http://www.census.gov/hhes/families/data/children.html ..................................52 Daphne Lofquist et al., Households and Families: 2010, Census Br. C2010BR-14 (Apr. 2012), http://www.census.gov/prod/cen2010/briefs/c2010br-14.pdf ............................52 Letitia Anne Peplau and Linda D. Garnets, A New Paradigm for Understanding Womens Sexuality and Sexual Orientation, 56 J. of Soc. Issues 329 (2000) ...........................................................................31 Respect for Marriage Act, H.R. 1116, 112th Cong. (2011).....................................57 Respect for Marriage Act, S. 598, 112th Cong. (2011) ...........................................57 Adam P. Romero et al., Census Snapshot (Dec. 2007), http://escholarship.org/uc/item/6nx232r4 ...........................................................52 Schalk & Kopf v. Austria, No. 30141/04 E.U. Ct. H.R. (2010) ...............................50 Superseding Br. for U.S. Dept of HHS, Massachusetts v. U.S. Dept of HHS, Nos. 10-2204, 10-2207, 10-2214 (1st Cir. Sept. 22, 2011) ......................41 United Nations Convention on the Rights of the Child, art.7, 28 I.L.M. 1448, 1460 (Nov. 20, 1989) ................................................................................54

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JURISDICTIONAL STATEMENT The district court had jurisdiction over this action seeking a federal tax refund and challenging the constitutionality of a federal statute under 28 U.S.C. 1331 and 1346(a)(1). The district court issued its final order on June 6, 2012, and entered judgment the next day. Appellant timely filed its notice of appeal on June 8, 2012. This Court has jurisdiction pursuant to 28 U.S.C. 1291. An issue of Article III standing is addressed, infra, at 17-19. STATEMENT OF THE ISSUES Section 3 of the Defense of Marriage Act (DOMA) provides that, for purposes of federal law, the word marriage means only a legal union between one man and one woman as husband and wife, and the word spouse refers only to a person of the opposite sex who is a husband or wife. 1 U.S.C. 7. The questions presented are: 1. Whether, as relevant to plaintiffs standing, the New York Court of

Appeals would conclude that New York law recognized foreign, same-sex marriages as valid for New York law purposes before New York itself recognized same-sex marriages; 2. Whether the district court erred by applying to DOMA a novel

standard of equal protection reviewintensified scrutinyrather than rational basis review; and

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3.

Whether Congress could have rationally concluded that DOMA

furthers legitimate governmental interests. STATEMENT OF THE FACTS AND THE CASE Ms. Windsor and Ms. Spyer obtained a marriage certificate in Ontario, Canada in 2007, although they were domiciled in the state of New York at all relevant times. They took no actions to have that foreign marriage certificate recognized for New York law purposes during Ms. Spyers lifetime. Ms. Spyer passed away in 2009, naming Ms. Windsor the executor and sole beneficiary of her estate. After paying some $363,000 in federal estate taxes, Ms. Windsor, as executor, sought a refund of that amount on the theory that the estate was entitled to the marital deduction. Recognizing that federal law offers this deduction only when the estates beneficiary is a spouse within the meaning of federal tax law and DOMA, Ms. Windsor claimed that the failure to extend this favorable treatment to her violates the Fifth Amendments equal protection requirements. The IRS denied the refund, and Ms. Windsor filed this suit. The U.S. Department of Justice (DOJ) had for years successfully defended DOMAs constitutionality in other cases, relying on well-established precedent applying rational basis review to classifications based on sexual orientation. E.g., Smelt v. Cnty. of Orange, 374 F. Supp. 2d 861 (C.D. Cal. 2005), vacated in part for lack of standing, 447 F.3d 673 (9th Cir. 2006); In re Kandu, 315 B.R. 123 (Bankr.

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W.D. Wash. 2004); Br. for Respt, Torres-Barragan v. Holder, Nos. 08-73745 & 09-71226 (9th Cir. Aug. 12, 2010); Br. for Respt, Lui v. Holder, No. 09-72068 (9th Cir. Apr. 29, 2010). In response to Ms. Windsors claims, however, in February 2011 the Attorney General notified Congress that DOJ had decided to forgo the defense of DOMA. Letter from Atty Gen. Eric H. Holder, Jr. to the Hon. John A. Boehner, Speaker of the House (Feb. 23, 2011) (Holder Letter), App. A-55. Attorney General Holder stated that he and President Obama take the view that a heightened standard [of review] should apply [to DOMA], that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3. App. A-56. At the same time, he acknowledged that: (1) the binding precedents of the great majority of the U.S. Courts of Appeals (the exact number was eleven) hold that sexual orientation classifications are subject only to rational basis review, App. A-53-54 nn.4-6; (2) in light of the respect appropriately due to a coequal branch of government, DOJ has a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense, App. A-55; and (3) in fact, a reasonable argument for Section 3s constitutionality may

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be proffered under [the rational basis] standard, App. A-56. Following DOJs abandonment of its constitutional responsibilities to defend DOMA, the Bipartisan Legal Advisory Group of the U.S. House of Representatives (the House), acting on behalf of the entire House, intervened. 1 The district court entered an unusual scheduling order under which Ms. Windsor moved for summary judgment before the House moved to dismiss the complaint. The district court denied the Houses motion, granted Ms. Windsors, and entered judgment for her. The district court first concluded that New York law recognized foreign same-sex marriages before Ms. Spyers death, and that Ms. Windsor therefore had standing. The district court then found the Supreme Courts decision upholding traditional marriage laws in Baker v. Nelson, 409 U.S. 810 (1972), to be inapplicable. The court applied a novel standard of equal protection review The U.S. House of Representatives has articulated its institutional position in litigation matters through a five-member bipartisan leadership group since at least the early 1980s (although the formulation of the groups name has changed somewhat over time). Since 1993, the House rules have formally acknowledged and referred to the Bipartisan Legal Advisory Group, as such, in connection with its function of providing direction to the Office of General Counsel. See, e.g., H.R. Rule I.11, 103rd Cong. (1993); H.R. Rule II.8, 112th Cong. (2011). While the group seeks consensus whenever possible, it functions on a majoritarian basis, like the institution it represents, when consensus cannot be achieved. The Bipartisan Legal Advisory Group currently is comprised of the Honorable John A. Boehner, Speaker of the House, the Honorable Eric Cantor, Majority Leader, the Honorable Kevin McCarthy, Majority Whip, the Honorable Nancy Pelosi, Democratic Leader, and the Honorable Steny H. Hoyer, Democratic Whip. The Democratic Leader and the Democratic Whip decline to support the filing of this brief. 4
1

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involving intensified scrutiny. Although the district court agreed that the House had advanced several legitimate government interestssuch as preserving the traditional institution of marriage and promoting responsible childrearingit concluded that DOMA does not adequately further any of those interests. The court also found that DOMA is sufficiently related to a government interest in the uniform distribution of federal benefits, but found this to be an illegitimate federal interest because the Constitution requires that states, not Congress, define what federal law means when it uses the words marriage and spouse. The district court finally held that conserving government resources is not a sufficient government interest without some further justification for DOMA. DOMAS BACKGROUND DOMA defines marriage for purposes of federal law as the legal union of a man and a woman: In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word marriage means only a legal union between one man and one woman as husband and wife, and the word spouse refers only to a person of the opposite sex who is a husband or a wife. 1 U.S.C. 7. DOMA thus confirms Congress intent to extend federal marital benefits and duties to those relationships, and not to others. Congress, of course, did not invent the meanings of marriage and spouse when it enacted DOMA in 1996. Rather, DOMA merely reaffirmed what 5

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Congress has always meantand what courts and the Executive Branch have always understood it to meanin using those words: A traditional male-female couple. E.g., Revenue Act of 1921, 223(b), 42 Stat. 227 (permitting joint tax returns by a husband and wife living together); 38 U.S.C. 101(31) ([S]pouse means a person of the opposite sex .); U.S. Dept of Labor, Final Rule, Family and Medical Leave Act of 1993, 60 Fed. Reg. 2180, 2190-91 (Jan. 6, 1995) (declining, as inconsistent with congressional intent, to define spouse as including same-sex relationships); Adams v. Howerton, 486 F. Supp. 1119, 1123 (C.D. Cal. 1980) (Congress, as a matter of federal law, did not intend that a person of one sex could be a spouse to a person of the same sex for immigration law purposes.), affd, 673 F.2d 1036 (9th Cir. 1982); Dean v. Dist. of Columbia, 653 A.2d 307, 314 (D.C. 1995) (Congress, in enacting a District of Columbia marriage statute, intended that marriage is limited to opposite-sex couples). Although Congress often has made eligibility for federal marital benefits or duties turn on a couples state-law marital status, Congress also has a long history of supplying federal marital definitions in various contexts. E.g., I.R.C. 2(b)(2) (deeming persons unmarried who are separated from their spouse or whose spouse is a nonresident alien); I.R.C. 7703(b) (excluding some couples living apart); 42 U.S.C. 416 (defining spouse, wife, husband, widow, widower, and divorce, for Social-Security purposes); 42 U.S.C. 1382c(d)(2) (recognizing

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common-law marriage for Social Security benefits regardless of state recognition); 38 U.S.C. 101(31) ([S]pouse means a person of the opposite sex who is a wife or husband.); 5 U.S.C. 8101(6), (11) & 8341(a)(1) -(2), (e) (employee-benefits statutes defining widow, widower, and former spouse); 8 U.S.C. 1186a(h)(1), (4) (immigration statutes defining alien spouse and petitioning spouse ). DOMAs Legislative Branch History DOMA was enacted by the 104th Congress by overwhelming, bipartisan votes of 342-67 in the House and 85-14 in the Senate. 142 Cong. Rec. 17093-94 (1996) (House); id. at 22467 (Senate). President Clinton signed DOMA into law. 32 Weekly Comp. Pres. Doc. 1891 (Sept. 30, 1996). DOMA was enacted in response to the Hawaii Supreme Courts decision in Baehr v. Lewin, 852 P.2d 44 (Haw. 1993), finding the denial of marriage licenses to same-sex couples subject to strict scrutiny under the state constitution. As the Hawaii courts appear[ed] to be on the verge of requiring that State to issue marriage licenses to same-sex couples, H.R. Rep. No. 104-664 4-5 (1996), reprinted in 1996 U.S.C.C.A.N. 2905 (House Rep.), Congress was concerned that this could interfere with the ability of other states and the federal government to define marriage along traditional lines. Section 2 of DOMA therefore clarified that states need not recognize foreign same-sex marriages. See 28 U.S.C. 1738C.

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And with Section 3, Congress reaffirmed that, no matter how any state might redefine marriage under state law, the federal definition could remain what Congress had always intendedthe lawful union of one man and one woman until and unless Congress itself changed it. In DOMAs extensive legislative history, Congress recognized that past Congresses uniformly used the words marriage and spouse to refer solely to opposite-sex couples. House Rep. 10 ([N]one of the federal statutes or regulations that use the words marriage or spouse were thought by even a single Member of Congress to refer to same-sex couples.); id. at 29 (Section 3 merely restates the current understanding of what those terms mean for purposes of federal law.); 142 Cong. Rec. 16969 (1996) (Rep. Canady) (Section 3 changes nothing; it simply reaffirms existing law.); id. at 17072 (Rep. Sensenbrenner). DOMA thus was intended to ensure that changes in state law would not alter the meaning of federal statutes already on the books or overturn the legislative judgments of earlier Congresses. See Defense of Marriage Act: Hearing on H.R. 3396 Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 104th Cong. 32 (1996) (House Hrg.) (Rep. Sensenbrenner) (When all of these benefits were passed by Congressand some of them decades agoit was assumed that the benefits would be to the survivors or to the spouses of traditional heterosexual marriages.).

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Congress stressed that disagreements among the states regarding which couples can marry should not be permitted to create serious geographical disparities in the applicability of federal marital duties and benefits. As Senator Ashcroft stated, a federal definition is very important, because unless we have a Federal definition of what marriage is, a variety of States around the country could define marriage differently [and] people in different States would have different eligibility to receive Federal benefits, which would be inappropriate. 142 Cong. Rec. 22459 (1996). Federal benefits should be uniform for people no matter where they come from in this country. People in one State should not have a higher claim on Federal benefits than people in another State. Id. Congress also enacted DOMA to conserve the public fisc. Providing marital benefits impose[s] certain fiscal obligations on the federal government. House Rep. 18. Congress concluded that DOMA would preserve scarce government resources, surely a legitimate government purpose. Id. Congress also wanted to ensure that the federal government retained the ability to define marriage for federal law purposes, and not simply incorporate whatever changes in the definition various states favored. Just as it acted in Section 2 to preserve the ability of other states to adopt their own definition and not have the new Hawaii approach imposed via full faith and credit principles, it acted in Section 3 to preserve the federal governments prerogative to define the

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term for purposes of federal law. And in retaining the traditional definition, Congress emphasized [t]he enormous importance of marriage for civilized society. House Rep. 13 (quoting Council on Families in America, Marriage in America: A Report to the Nation 10 (1995)). The House Report quoted approvingly from Murphy v. Ramsey, 114 U.S. 15, 45 (1885), in which the Supreme Court referred to the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization. House Rep. 12; 142 Cong. Rec. 16970 (1996) (Rep. Hutchinson) (marriage has been the foundation of every human society); id. at 22442 (Sen. Gramm); id. at 22454 (Sen. Burns) ([M]arriage between one man and one woman is still the single most important social institution.). And Congress recognized that these benefits have been generated by the institution of marriage as it has traditionally been defined in American lawthe union of one man and one woman. See House Rep. 3 ([T]he uniform and unbroken rule has been that only opposite-sex couples can marry.); House Hrg. 1 (Rep. Canady) ([I]n the history of our country, marriage has never meant anything else.); 142 Cong. Rec. 16796 (1996) (Rep. McInnis) (If we look at any definition, whether it is Blacks Law Dictionary, whether it is Websters Dictionary, a marriage is defined as [a] union between a man and a woman and this Congress should respect that.); id. at 22451 (Sen. Coats) (DOMA merely

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restates the understanding of marriage shared by Americans, and by peoples and cultures all over the world.); id. at 22452 (Sen. Mikulski) (DOMA is about reaffirming the basic American tenet of marriage.). Congress also explained that the reason society recognizes the institution of marriage and grants married persons preferred legal status is that it has a deep and abiding interest in encouraging responsible procreation and child-rearing. House Rep. 12, 13. Congress recognized the basic biological fact that only a man and a woman can beget a child together, and our profound national commitment to the norm that children should when possible be raised in families headed by their biological mothers and fathers. See 142 Cong. Rec. 22446 (1996) (Sen. Byrd); 142 Cong. Rec. S10002 (daily ed. Sept. 6, 1996) (Sen. Lieberman) (DOMA affirms another basic American mainstream value, marriage as an institution between a man and a woman, the best institution to raise children in our society.); House Hrg. 1 (Rep. Canady) ([Marriage] is inherently and necessarily reserved for unions between one man and one woman. This is because our society recognizes that heterosexual marriage provides the ideal structure within which to beget and raise children.); 142 Cong. Rec. 17081 (1996) (Rep. Weldon) ([M]arriage of a man and woman is the foundation of the family. The marriage relationship provides children with the best environment in which to grow and learn.). Congress received and considered advice on DOMAs constitutionality and

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concluded that DOMA is constitutional. See House Rep. 32; id. at 33-34 (letters to House from DOJ advising that DOMA is constitutional); House Hrg. 86-117 (testimony of Professor Hadley Arkes); Defense of Marriage Act: Hearing on S. 1740 Before the S. Comm. on the Judiciary, 104th Cong. 1, 2 (1996) (hereinafter Senate Hrg.) (Sen. Hatch); id. at 2 (DOJ letter to Senate advising that DOMA is constitutional); id. at 23-41 (testimony of Professor Lynn D. Wardle); id. at 56-59 (letter from Professor Michael W. McConnell); see also 150 Cong. Rec. S7879 (daily ed. July 9, 2004) (Sen. Hatch); id. at H7896 (daily ed. Sept. 30, 2004) (Letter from former Atty Gen. Edwin Meese to Rep. Musgrave); id. at S8008 (daily ed. July 13, 2004) (Sen. Sessions) (No one disputes that a two-parent traditional family is a healthy, positive force for our society. That is why it is perfectly legitimate for any government to provide laws that further [marriage].). DOMAs Executive Branch History During the Clinton Administration, DOJ three times advised Congress that DOMA is constitutional. See Letters from Andrew Fois, Asst. Atty Gen., to Rep. Canady (May 29, 1996), reprinted in House Rep. 33; to Rep. Hyde (May 14, 1996), reprinted in House Rep. 32-33; and to Sen. Hatch (July 9, 1996), reprinted in Senate Hrg. 2. During the Bush Administration, DOJ successfully defended DOMA against several constitutional challenges, prevailing in every case to reach final judgment.

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See Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005); Smelt, 374 F. Supp. 2d 861; Sullivan v. Bush, No. 04-21118 (S.D. Fla. Mar. 16, 2005) (granting voluntary dismissal after defendants moved to dismiss); Hunt v. Ake, No. 04-1852 (M.D. Fla. Jan. 20, 2005); Kandu, 315 B.R. 123. During the first two years of the Obama Administration, DOJ continued to defend DOMA. However, in February 2011, the Obama Administration announced its intent to refuse to defend DOMAs constitutionality. See supra pp.3-4. Since then DOJ has filed an extraordinary series of briefs not only failing to defend this Act of Congress but affirmatively attacking DOMAs constitutionality, and accusing Congress (and, at least implicitly, former President Clinton) of bigotry and animus in enacting the law. E.g., Resp. to Mot. for Summ. J., Windsor, No. 10-cv-08435 (S.D.N.Y. Aug. 19, 2011). SUMMARY OF ARGUMENT 1. Ms. Windsors standing to challenge Section 3 of DOMA turns on

whether New York would recognize her Canadian marriage to Ms. Spyer, even though it was entered at a time when New York law did not recognize same-sex marriages. Because the New York Court of Appeals has never answered the question whether foreign same-sex marriages were recognized in New York as of the time of Ms. Spyers death, this Court must either predict how the New York Court of Appeals would answer that question or else certify the question to that

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court. Because the question implicates core sovereign concerns about recognizing foreign judgments and defining marriage for the sovereigns own purposes, and because resolution of that issue in favor of Ms. Windsor is a necessary prerequisite to the extraordinary relief that Ms. Windsor requests from this Court, certification is appropriate. 2. On the merits, binding precedent forecloses Ms. Windsors equal

protection challenge to DOMA. In Baker v. Nelson, 409 U.S. 810 (1972), the Supreme Court held that a state may use the traditional definition of marriage without violating equal protection. It follows that the federal government may use the same definition for purposes of federal law. 3. Precedent overwhelmingly, and correctly, rejects strict or heightened

equal protection scrutiny for classifications based on sexual orientation, and does not support the district courts adoption of a novel form of intensified scrutiny. Rational basisand not some form of heightened or intensified reviewclearly applies to plaintiffs equal protection challenge. 4. DOMA easily passes muster under rational basis review, as it is

supported by numerous rational bases. Congress saw that expanding federal marital benefits to same-sex couples would raise significant problems of disuniformity and unfairness in the distribution of such benefits. Moreover, any extension of federal marital benefits likely would increase demands on federal

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resources, create unpredictable changes in the budgets of federal programs and agencies, and upset the calibration of countless prior statutes dealing with marriages, all of which were structured on the understanding that the institution included only opposite-sex couples. Congress also wanted to preserve its ability to have a federal definition for federal purposes and not have novel state definitions imposed for federal-law purposes. In preserving the traditional definition for federal law purposes, Congress was acutely aware of the central importance of the institution of marriage to our society, and legitimately concerned about the nations lack of experience with the long- or even medium-term consequences of changing this foundational social institution in an unprecedented way to include same-sex couples. Any of these interests suffices to justify Congress in adhering to the traditional definition of marriage that has always been used by the large majority of states. And the government interests that supported the adoption of that definition by the states in the first place also support DOMA. The institution of marriage is justified by its close connection to the procreation and rearing of the next generation of citizensa governmental interest that opposite-sex couples implicate in a way that same-sex couples do not, thus explaining their differential treatment. Traditional marriage also furthers the legitimate government purpose of encouraging the raising of the next generation of citizens by their own biological

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mothers and fathers. The consequence of recognizing that DOMA is subject to and satisfies rational basis review is to leave the marriage debate where it belongs: Subject to the legislative and democratic process. Proponents of same-sex marriage have made remarkable strides in advancing their position at the state and national level. That progress has not been uniform or without setbacks, but that is what is to be expected in a democratic process that depends on convincing skeptics and converting opponents, rather than demonizing them or labeling them bigots. This Court should allow the democratic process to continue and decline the invitation to constitutionalize this issue and label the actions of Congress and President Clinton not just unwise, not just antiquated, but flatly irrational. ARGUMENT [J]udging the constitutionality of an Act of Congress is the gravest and most delicate duty that [the courts are] called on to perform. The Congress is a coequal branch of government whose Members take the same oath we do to uphold the Constitution. Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 204-05 (2009) (quotation marks and citations omitted). Furthermore, [a] ruling of unconstitutionality frustrates the intent of the elected representatives of the people. Regan v. Time, Inc., 468 U.S. 641, 652 (1984). For these reasons, the Supreme Court does and should accord a strong presumption of constitutionality

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to Acts of Congress. This is not a mere polite gesture. It is a deference due to deliberate judgment by constitutional majorities of the two Houses of Congress that an Act is [constitutional]. United States v. Five Gambling Devices, 346 U.S. 441, 449 (1953) (plurality). The customary deference accorded the judgments of Congress is certainly appropriate when, as here, Congress specifically considered the question of the Acts constitutionality. Rostker v. Goldberg, 453 U.S. 57, 64 (1981). See supra pp.11-12. Nowhere is that deference more appropriate than in judging an Act of Congress under rational basis review. It is no small step for a federal court to conclude that a coordinate branch of the federal government has acted irrationally. I. Because Ms. Windsors Standing Turns on Whether New York Law Recognized Foreign, Same-Sex Marriages When Ms. Spyer Died, This Court Must Either Certify That Question to the New York Court of Appeals or Predict How That Court Would Resolve the Question. Ms. Windsor claims that DOMA violates equal protection because it denies federal recognition to marriages that are valid under state law. Thus, she has standing to challenge DOMA only if New York would have recognized her Canadian, same-sex marriage to Ms. Spyer as valid when Ms. Spyer died on February 5, 2009, at a time when New York itself did not recognize same-sex marriages. See Smelt v. Cnty. of Orange, 447 F.3d 673 (9th Cir. 2006) (unmarried same-sex couple lacked standing to challenge DOMA); Matthews v. Gonzales, 171 F. Appx 120 (9th Cir. 2006) (same). If New York would not have recognized the 17

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Windsor-Spyer same-sex foreign marriage, then the premise for Ms. Windsors claim fails, she can trace no injury to DOMA, and DOMAs invalidation would not provide redress. Lujan v. Defenders of Wildlife, 504 U.S 555, 560-61 (1992). The New York Court of Appeals has not resolved the question whether foreign, same-sex marriages were valid under New York law in 2009, when Ms. Spyer died. Just three years earlier, in rejecting an effort to compel New York to recognize same-sex marriage generally, the court held that the New York Constitution does not compel recognition of marriages between members of the same sex. Hernandez v. Robles, 855 N.E.2d 1, 5 (N.Y. 2006). Then, in 2009, it expressly reserved the question whether New York law recognizes foreign, samesex marriages. Godfrey v. Spano, 920 N.E.2d 328, 337 (N.Y. 2009). Here, the district court relied on certain state executive branch pronouncements and three lower court rulings to conclude that foreign same-sex marriages were recognized in New York in 2009. App. A-990-993. Because New Yorks highest court viewed the validity of foreign, same-sex marriages under New York law as an open question as of 2009, this Court must either (1) predict how the New York Court of Appeals would resolve the question, or (2) certify the question to the New York Court of Appeals for a definitive resolution. Highland Capital Mgmt. LP v. Schneider, 460 F.3d 308, 316 (2d Cir. 2006). See N.Y. Comp. Codes R. & Regs. tit. 22, 500.27(a) (authorizing this

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Court to certify determinative questions of New York law for which no controlling precedent of the [New York] Court of Appeals exists); see also N.Y. Const. art. 6, 3(b)(9); 2d Cir. R. 27.2. 2 This Court has said that several factors guide the certification decision, including whether the state law question requires value judgments and important public policy choices that the New York Court of Appeals is better suited than [this Court] to make. Penguin Grp., 609 F.3d at 42. Here, the question concerns issues central to two core sovereign mattersthe definition of marriage for the sovereigns own purposes and the recognition of foreign judgmentsthat are better resolved by the states highest court. Moreover, the odd temporal twist the need to address how the Court would have ruled definitively in 2009 when, in fact, the highest court reserved that question in 2009also counsels in favor of certification. Because Ms. Windsor asks the Court to undertake the gravest and most delicate duty of judging the constitutionality of a federal statute, see Nw. Austin Mun. Util. Dist., 557 U.S. at 204, it is essential that her standing to do so be firmly established. Accordingly, this Court should certify the questionwhether New York would have recognized a foreign samesex marriage as valid in 2009, at a time when New York did not generally recognize same-sex marriageas a necessary precondition to resolving plaintiffs standing and reaching the merits.
2

The court below did not have this option. See Penguin Grp. (USA) Inc. v. Am. Buddha, 640 F.3d 497, 499 n.4 (2d Cir. 2011). 19

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II.

Binding Supreme Court Precedent Holds That the Traditional Definition of Marriage Does Not Violate Equal Protection. The Supreme Court already has held that the definition of marriage as the

legal union of one man and one woman comports with equal protection. See Baker v. Nelson, 409 U.S. 810 (1972). Baker forecloses Ms. Windsors equal protection challenge to DOMA. In Baker, the plaintiffstwo men who were denied a marriage license on the sole ground that [they] were of the same sex, 191 N.W.2d 185, 185 (Minn. 1971)brought an equal protection challenge to Minnesotas statute defining marriage as a union between persons of the opposite sex, id. at 186. They argued that the right to marry without regard to the sex of the parties is a fundamental right of all persons and that restricting marriage to only couples of the opposite sex is irrational and invidiously discriminatory. Id. The Minnesota Supreme Court rejected their challenge, holding that equal protection is not offended by the states classification of persons authorized to marry. There is no irrational or invidious discrimination. Id. at 187. The plaintiffs appealed as of right to the Supreme Court under former 28 U.S.C. 1257(2). Their Jurisdictional Statement presented the question [w]hether appellees refusal, pursuant to Minnesota marriage statutes, to sanctify appellants marriage because both are of the male sex violates their rights [to] equal protection. App. A-695. They argued that Minnesota law 20

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unconstitutionally discriminated based on both sex and sexual orientation, maintaining that there is no justification in law for the discrimination against homosexuals, and that they were similarly circumstanced to childless heterosexual couples and therefore entitled to the same benefits awarded by law. App. A-699, A-702. They argued that the Minnesota marriage statute failed both heightened scrutiny and rational basis review. App. A-701 (arguing that the states proscription of single sex marriage did not describe a legitimate government interest which is so compelling that no less restrictive means can be found and alternatively that it simply has not been shown to be rationally related to any governmental interest). The U.S. Supreme Court rejected these arguments and summarily affirmed, unanimously dismissing the appeal for want of a substantial federal question. Baker, 409 U.S. at 810. Such a disposition is a decision on the merits, not a mere denial of certiorari. See Hicks v. Miranda, 422 U.S. 332, 344-45 (1975); Mandel v. Bradley, 432 U.S. 173, 176 (1977). It means that the Court found that the decision below was correct and that no substantial question of the merits was raised. Eugene Gressman et al., Supreme Court Practice 365 (9th ed. 2007). Because the Courts appellate jurisdiction under former 1257(2) was mandatory, the Supreme Court had no discretion to refuse to adjudicate [Baker] on its merits, Wilson, 354 F. Supp. 2d at 1304, and its dismissal[] for want of a

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substantial federal question without doubt reject[ed] the specific challenges presented in the statement of jurisdiction, Mandel, 432 U.S. at 176i.e., the contention that prohibiting same-sex marriages violated equal protection. See League of Women Voters of Nassau Cnty. v. Nassau Cnty. Bd. of Supervisors, 737 F.2d 155, 164 (2d Cir. 1984) ([T]his Courts responsibility in gauging [a summary dispositions] authority is to mark out the reach and content of that prior disposition.). Here, the district court attempted to evade Bakers precedential force by suggesting that while [t]he states may choose to preserve traditional marriage, App. A-1008, the federal government violates equal protection by doing the same thing. App. A-994-995. That does not work. The Supreme Court has rejected efforts to distinguish state and federal action for equal protection purposes and underscored that its approach to Fifth Amendment equal protection claims has always been precisely the same as to equal protection claims under the Fourteenth Amendment. Adarand Constructors, Inc. v. Pea, 515 U.S. 200, 217 (1995) (quotation marks omitted). Since Baker holds that states may use the traditional definition of marriage for state purposes without violating equal protection, it necessarily follows that Congress may define marriage the same way for federal purposes without violating equal protection. See McConnell v. Nooner, 547 F.2d 54, 56 (8th Cir. 1976) (per curiam) (in a claim for federal marital benefits by a

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same-sex couple, Baker constitutes an adjudication on the merits which is binding on the lower federal courts); Adams, 486 F. Supp. at 1124 (same), affd, 673 F.2d at 1039 n.2 (acknowledging precedential nature of Baker while conducting independent analysis); Wilson, 354 F. Supp. 2d at 1305 (Baker is binding precedent with dispositive effect requiring dismissal of equal protection challenge to DOMA). The district court simply ignored the well-established identity of the analysis for federal and state action and erred as a matter of law. Because [t]he Supreme Court has not explicitly or implicitly overturned its holding, Wilson, 354 F. Supp. 2d at 1305, this Court is obligated to follow Baker. [L]ower courts are bound by summary decisions by [the Supreme] Court until such time as the [Supreme] Court informs them they are not, Hicks, 422 U.S. at 344-45 (quotation marks and parentheses omitted), and the Supreme Court has never disturbed Baker. In Lawrence v. Texas, 539 U.S. 558, 578 (2003), the Court specifically declined to revisit the question whether the government must give formal recognition to any relationship that homosexual persons seek to enter. And Justice OConnor expressly stated that statutes preserving the traditional institution of marriage remain valid. Id. at 585 (concurring). It is thus clear that the Supreme Court has left the binding nature of Bakers holding unimpaired.

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III.

Sexual Orientation Classifications Are Subject to Deferential Rational Basis ReviewNot the District Courts Novel Intensified Scrutiny. Even if Baker did not control this case (which it does), rational basis review

applies here, and DOMA easily satisfies such deferential review. In judging an equal protection claim, the rational basis test applies where a legislative classification or distinction neither burdens a fundamental right nor targets a suspect class. Vacco v. Quill, 521 U.S. 793, 799 (1997) (quotation marks omitted). The suspect classes are race, alienage, [and] national origin. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985). Classifications based on sex or illegitimacy are quasi-suspect. Id. at 440-41. DOMA classifies on none of these bases, and the Supreme Court has declined to add additional bases for heightened scrutiny and has treated classifications on sexual orientation as subject to rational basis review. The district court therefore properly rejected the application of strict or heightened scrutiny. App. A-997-999. A. Eleven Circuits Hold That Sexual Orientation Classifications Are Subject to Rational Basis Review While None Applies Heightened Scrutiny.

[T]he Supreme Court has never ruled that sexual orientation is a suspect classification for equal protection purposes, Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 866 (8th Cir. 2006), and not for lack of opportunities to do so. In Romer v. Evans, 517 U.S. 620 (1996), the Court struck down, on equal protection grounds, a state law classifying on sexual orientation. Romer could readily have

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been disposed by recognizing gays and lesbians as a suspect class and applying heightened scrutiny. Massachusetts v. U.S. Dept of HHS, 682 F.3d 1, 9 (1st Cir. 2012). But the Romer Court conspicuously declined to take that route, id., and instead applied the conventional inquiry whether the law bears a rational relation to some legitimate end. Romer, 517 U.S. at 631, 632. The Supreme Court has admonished that the judiciary must be reluctant to establish new suspect classes. Cleburne, 473 U.S. at 442. The Court itself has not done so for nearly forty years, and it has repeatedly rejected the reasoning of lower courts that have attempted to take this task on themselves, including proposals to designate as suspect or quasi-suspect legislative distinctions based on mental handicap, id. at 442-47, kinship, Lyng v. Castillo, 477 U.S. 635, 638 (1986), age, Mass. Bd. of Ret. v. Murgia, 427 U.S. 307 (1976), and poverty, San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973). Eleven Circuits have held in precedents spanning nearly 30 years that sexual orientation classifications are not subject to strict or heightened scrutiny. E.g., Massachusetts, 682 F.3d at 9 (1st Cir. 2012); Cook v. Gates, 528 F.3d 42, 61-62 (1st Cir. 2008); Thomasson v. Perry, 80 F.3d 915, 927-28 (4th Cir. 1996); Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004); Davis v. Prison Health Servs., 679 F.3d 433, 438 (6th Cir. 2012); Ben-Shalom v. Marsh, 881 F.2d 454, 464 (7th Cir. 1989); Citizens for Equal Prot., 455 F.3d at 867 (8th Cir. 2006); Perry v. Brown,

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671 F.3d 1052, 1082 (9th Cir. 2012); High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563, 573-74 (9th Cir. 1990); Price-Cornelison v. Brooks, 524 F.3d 1103, 1113 (10th Cir. 2008); Natl Gay Task Force v. Bd. of Educn of City of Okla. City, 729 F.2d 1270, 1273 (10th Cir. 1984), affd by an equally divided court, 470 U.S. 903 (1985) (per curiam); Lofton v. Secy of Dept of Children & Family Servs., 358 F.3d 804, 818 (11th Cir. 2004); Padula v. Webster, 822 F.2d 97, 103 (D.C. Cir. 1987); Woodward v. United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989). No Court of Appeals has disagreed. Indeed, so well established is the applicability of rational basis scrutiny to sexual orientation classifications that, on the only occasion on which this Court has considered the issue, the plaintiff did not even argue for anything else. See Able v. United States, 155 F.3d 628, 632 (2d Cir. 1988). This unanimous view of the Courts of Appeals is a thoroughly sound one. Among the key factors identified by the Supreme Court in determining whether a class is suited for suspect or quasi-suspect treatment are (1) whether the class at issue is politically powerless in the sense that they have no ability to attract the attention of the lawmakers, Cleburne, 473 U.S. at 445; (2) whether the classification turns on distinguishing characteristics relevant to interests the State has the authority to implement, id. at 441; (3) whether the class is defined by an immutable characteristic, Lyng, 477 U.S. at 638; and (4) whether the class has

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suffered discrimination [a]s a historical matter, id. None of these factors adequately supports recognizing sexual orientation classifications as quasi-suspect, especially in light of the Supreme Courts declination to apply heightened scrutiny in this context. 1. Gays and Lesbians Do Not Lack Political Power.

More than 20 years ago, the Seventh and Ninth Circuits recognized that homosexuals are not without growing political power, and that [a] political approach is open to them to pursue their objectives. Ben-Shalom, 881 F.2d at 466; accord High Tech Gays, 895 F.2d at 574. That power has only increased since then, exponentially. Today, same-sex marriage is supported by President Obama (who has called for DOMAs repeal), and Vice President Biden (who voted for DOMA as a Senator in 1996), as well as the Senate majority leader, the House minority leader, and the draft platform of the Democratic Party. Nearly one-third of the Members of the House have signed on to amici briefs filed in the First and Ninth Circuits attacking both the wisdom and constitutionality of DOMA. 3 Polling indicates that by 2011, the proportion of Americans supporting same-sex marriage

Br. of 133 House Members, Massachusetts, Nos. 10-2204, 10-2207 & 10-2214 (1st Cir. Nov. 3, 2011); Br. of 131 House Members, Golinski v. U.S. Office of Pers. Mgmt., Nos. 12-15388 & 12-15409 (9th Cir. July 10, 2012). 27

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had increased from 27% to 53% in a span of only 16 years. 4 Every state in this Circuit permits same-sex marriage, as do other jurisdictions. The Human Rights Campaign, one of the nations leading gay-rights organizations, has been ranked the second most successful political organization in the entire country by National Journal. 5 Gays and lesbians represent nearly 20% of the Presidents top fundraisers. 6 And many of the most powerful corporations in the country proclaim gay rights as one of their core principles. 7 In short, gays and lesbians are one of the most influential, best-connected, best-funded, and best-organized interest groups in modern politics, and have attained more legislative victories, political power, and popular favor in less time than virtually any other group in American history. Characterizing such a group as Frank Newport, For First Time, Majority of Americans Favor Legal Gay Marriage, Gallup.com (May 20, 2011), http://www.gallup.com/poll/147662/firsttime-majority-americans-favor-legal-gay-marriage.aspx. Human Rights Campaign Lauds 2008 Election Results, Human Rights Campaign (Nov. 4, 2008), http://www.hrc.org/press-releases/entry/human-rights-campaignlauds-2008-election-results (citing Reversal of Fortune, Natl J., Nov. 11, 2006). Michelle Garcia & Andrew Harmon, Obamas Power Gays, Advocate.com, Oct. 24, 2011, http://www.advocate.com/news/daily-news/2011/10/24/obamas-powergays; Dan Eggen, The Influence Industry: Same-Sex Marriage Issue Shows Importance of Gay Fundraisers, Wash. Post (May 9, 2012), http://www.washingtonpost.com/politics/same-sex-marriage-debate-many-ofobamas-top-fundraisers-are-gay/2012/05/09/gIQASJYSDU_story.html. Brs. of Amici Curiae 70 Employers at 18, filed in Massachusetts (1st Cir. Nov. 3, 2011) and Golinski (9th Cir. July 10, 2012). Companies joining one or both of these briefs include BNY Mellon, CBS, eBay, Gap Inc., Google, Levi Strauss, Microsoft, Nationwide Mutual, Nike, Starbucks, Time Warner, and Xerox. 28
7 6 5 4

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politically powerless would be wholly inconsistent with the Supreme Courts reluctance to recognize new suspect classes when the group can attract the attention of the lawmakers favorably enough not to satisfy this factor. Cleburne, 473 U.S. at 445. Gays and lesbians clear that low hurdle with ample room to spare. 2. Whether a Married Couple Is of the Opposite Sex Is Relevant to the Governments Interests in Recognizing Marriage.

As the Eighth Circuit has recognized, the distinguishing characteristic[] of homosexual persons as a class is their propensity to engage in relationships that are biologically incapable of procreation. Citizens for Equal Prot., 455 F.3d at 866 (quoting Cleburne, 445 U.S. at 441). Thus, whether a married couple is of the opposite sex squarely implicates the government interest in steering procreation into marriage. Id. at 867. 3. Sexual Orientation Is Not an Immutable Characteristic.

Sexual orientation differs in multiple dimensions from any existing suspect or quasi-suspect class. It is defined by a propensity to engage in a certain kind of voluntary conduct; the cause of that propensity is not well understood by science; sexual orientation is not determinable at birth; for many, sexual orientation is a fluid characteristic capable of changing over a persons lifetime; and the proposed class is difficult even to define. As other Circuits have recognized, [h]omosexuality differs

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fundamentally from those [characteristics] defining any of the recognized suspect or quasi-suspect classes. The conduct or behavior of the members of a recognized suspect or quasi-suspect class has no relevance to the identification of those groups. Ben-Shalom, 881 F.2d at 464; accord High Tech Gays, 895 F.2d at 573-74; Woodward, 871 F.2d at 1076. Suspect class treatment is inappropriate for classifications that are the product of voluntary action. Plyler v. Doe, 457 U.S. 202, 219 n.19 (1982). At present, science cannot say what causes a person to experience a homosexual orientation. According to Ms. Windsors own expert: Currently, the factors that cause an individual to become heterosexual, homosexual, or bisexual are not well understood. Many theories have been proposed but no single theory has gained prominence or is definitively established by scientific research. Today, most social and behavioral scientists view sexual orientation as resulting from the interplay of biological, psychological, and social factors. App. A-311. Thus, in contrast to sex, race, and national origin, it cannot be said that sexual orientation is an immutable characteristic determined solely by the accident of birth. Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (plurality). For many persons, sexual orientation is fluid. Ms. Windsors own evidence indicates that nearly 1 in 3 lesbian women and more than 1 in 9 gay men understand themselves to have had some degree of choice in their sexual orientation. App. A-764. As Ms. Windsors expert admits, a persons sexual 30

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orientation often cannot be readily categorized as heterosexual, homosexual, or perhaps bisexual. In fact, human experience often defies such clear-cut categories. 8 Instead, sexual orientations form a continuum, from exclusive attraction to the other sex to exclusive attraction to the same sex. 9 As Ms. Windsors expert has written regarding women in particular, sexuality and sexual orientation are potentially fluid, changeable over time, and variable across social contexts, 10 and [f]emale sexual development is a potentially continuous, lifelong process in which multiple changes in sexual orientation are possible. 11 As another of Ms. Windsors affiants puts it: [F]or some individuals, same-sex attraction decreases over time. [For others], same-sex attraction is consistent over time. For [yet others], same-sex attraction increases over time rather than decreasing. Such patterns have been documented in the scientific literature on sexual orientation for many years. App. A-964. Finally, when considering homosexuality as a potential suspect class, the complexities involved merely in defining the term would prohibit a

Linda D. Garnets & Letitia Anne Peplau, A New Paradigm for Womens Sexual Orientation: Implications for Therapy, 24 Women & Therapy 111, 115 (2001). Am. Psychol. Assn, Answers to Your Questions: For a Better Understanding of Sexual Orientation and Homosexuality, http://www.apa.org/topics/sexuality/orientation.aspx/. Letitia Anne Peplau and Linda D. Garnets, A New Paradigm for Understanding Womens Sexuality and Sexual Orientation, 56 J. of Soc. Issues 329, 329 (2000).
11

10

Garnets & Peplau, Implications for Therapy, supra n.8, at 116 (citation omitted). 31

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determination of suspect classification. Holloway v. Arthur Andersen & Co., 566 F.2d 659, 663 (9th Cir. 1977). See Lisa Diamond, New Paradigms for Research on Heterosexual and Sexual-Minority Development, 32 J. of Clinical Child & Adolescent Psychol. 490, 492 (2003) (There is currently no scientific or popular consensus on the exact constellation of experiences that definitively qualify an individual as lesbian, gay, or bisexual .). Homosexuality is the kind of large and amorphous class that the Supreme Court has said is not suitable for even quasi-suspect treatment. Cleburne, 473 U.S. at 445. 4. The Histories of Discrimination Based on Race, Ethnicity, Sex, and Legitimacy are Different.

Finally, each of the recognized suspect and quasi-suspect classesracial minorities, aliens, women, and those born illegitimatelyhave suffered discrimination for longer than history has been recorded. In contrast, as the Lawrence Court noted, the concept of the homosexual as a distinct category of person did not [even] emerge until the late 19th century. 539 U.S. at 568-69. As Ms. Windsors own expert has written, [a]lthough antigay discrimination is popularly thought to have ancient roots, in fact it is a unique and relatively shortlived product of the twentieth century. George Chauncey, Why Marriage?: The History Shaping Todays Debate Over Gay Equality 14 (2004). According to Dr. Chauncey, [m]ost of the [discrimination] was put in place between the 1920s and 1950s, and most was dismantled between the 1960s and the 1990s. Owen 32

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Keehnen, The Case for Gay Marriage: Talking with Why Marriage? Author George Chauncey, GLBTQ.com, 2004, http://www.glbtq.com/sfeatures/interviewgchauncey.html. Moreover, unlike racial minorities and women, homosexuals as a class have never been politically disenfranchisedthe kind of pervasive official discrimination that most clearly supports suspect class treatment by the courts. See United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938). Given the foregoing considerations, it is not surprising that courts deciding DOMAs constitutionality overwhelmingly have rejected the application of strict or intermediate scrutiny. See, e.g., Massachusetts, 632 F.3d at 9; Smelt, 374 F. Supp. 2d at 879; Wilson, 354 F. Supp. 2d at 1308; Kandu, 315 B.R. at 144; Lui v. Holder, No. 11-cv-01267 (C.D. Cal. Sept. 28, 2011); Torres-Barragan v. Holder, No. 09-cv-08564 (C.D. Cal. Apr. 30, 2010). 12 Similarly, courts reviewing the constitutionality of state traditional-marriage definitions have applied rational basis review. E.g., Perry, 671 F.3d at 1082; Citizens for Equal Prot., 455 F.3d at 866.

12

Cf. Pedersen v. Office of Pers. Mgmt., No. 10-cv-1750, 2012 WL 3113883, at *14 (D. Conn. July 31, 2012) (the Court need not apply a form of heightened scrutiny to DOMA); but see Golinski, 824 F. Supp. 2d 968, 989-90 (N.D. Cal. 2012) (applying heightened scrutiny), appeal docketed, No. 12-15388 (9th Cir.); In re Balas, 449 B.R. 567, 575 (Bankr. C.D. Cal. 2011) (applying heightened scrutiny in case where no party defended DOMAs constitutionality). 33

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B.

The District Court Erred by Applying a Novel Form of Intensified Scrutiny to DOMA.

The District Court attempted to sidestep the wall of precedent rejecting heightened scrutiny by applying a novel fourth way, neither rational, heightened or strict, but intensified scrutiny. That effort was both misguided and foreclosed. Three levels of scrutiny are more than enough, and the Supreme Court itself has made plain that there are three, and only three, levels of equal protection scrutiny: At a minimum, a statutory classification must be rationally related to a legitimate governmental purpose. Classifications based on race or national origin, and classifications affecting fundamental rights, are given the most exacting scrutiny. Between these extremes of rational basis review and strict scrutiny lies a level of intermediate scrutiny, which generally has been applied to discriminatory classifications based on sex or illegitimacy. Clark v. Jeter, 486 U.S. 456, 461 (1988) (citations omitted). Thus, having properly applied the Supreme Courts prescription of reluctan[ce] to establish new suspect [or quasi-suspect] classes, App. A-1028 (citation omitted), the district court should have recognized the Courts even greater reluctance to invent a new level of review, and simply inquired whether DOMA is rationally related to a legitimate government purpose. But instead, following the path blazed by the First Circuits Massachusetts decision of less than a week before, it formalized a brand new level of more searching rational basis review, or intensified scrutiny, which applies where minorities are subject to discrepant treatment and limit[s] the permissible justifications for a law. App. A-1030, (quoting Lawrence, 539 U.S. at

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579-80 (OConnor, J., concurring)), A-1031 (quoting Massachusetts, 682 F.3d at 10). The district court suggested that its new form of review also is triggered by federalism concerns, such that in areas where state regulation has traditionally governed the federal government interest [must] be shown with special clarity. App. A-1031 (quoting Massachusetts, 682 F.3d at 10). 13 This approach finds no support in the two Supreme Court decisions cited by the district court. See Cleburne, 473 U.S. at 442 (the court below erred in [applying] a more exacting standard of judicial review than is normally accorded economic and social legislation); id. at 440 (applying [t]he general rule that legislation will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest); USDA v. Moreno, 413 U.S. 528, 533 (1973) (applying the traditional equal protection analysis that a legislative classification must be sustained[] if the classification itself is rationally related to a legitimate government interest). While Justice OConnor, concurring in Lawrence, theorized that a more searching form of rational basis review might apply to laws that exhibit[] a desire to harm a politically unpopular group, 539 U.S. at 580, she expressly clarified that preserving the traditional institution Of course, state regulation has not traditionally governed the meaning of words in federal law, except by the affirmative choice of Congresseven with respect to words such as marriage and spouse. See supra pp.5-7, infra pp.4043. Thus, even if equal protection were (implausibly) read as a states rights doctrine, and even if that triggered the application of a novel tier of constitutional scrutiny, such review would not apply here. 35
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of marriage is a legitimate state interest that goes beyond mere moral disapproval of an excluded group, id.at 585. Thus, even if Justice OConnors concurring opinion were controlling (which it is not), it would still require this Court to apply rational basis review to DOMA and uphold DOMA under that test. IV. DOMA Easily Passes Rational Basis Review. Rational basis review is the most relaxed and tolerant form of judicial scrutiny under the Equal Protection Clause. City of Dallas v. Stanglin, 490 U.S. 19, 26 (1989). Under such review, a statute receives a strong presumption of validity and must be upheld if there is any reasonably conceivable state of facts that could provide a rational basis for the classification. FCC v. Beach Commcns, Inc., 508 U.S. 307, 313-14 (1993). The government has no obligation to produce evidence to sustain the rationality of a statutory classification, and courts are compelled under rational-basis review to accept a legislatures generalizations even when there is an imperfect fit between means and ends. Heller v. Doe, 509 U.S. 312, 320, 321 (1993). [A] legislative choice is not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data. Beach Commcns, 508 U.S. at 315. Indeed, it is entirely irrelevant for constitutional purposes whether the conceived reason for the challenged distinction actually motivated the legislature. Id. [T]he burden is on the one attacking the legislative arrangement to negative every

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conceivable basis which might support it, whether or not that basis has a foundation in the record. Heller, 509 U.S. at 320-21 (quotation marks, brackets, and citations omitted) (emphasis added); see also, e.g., Vance v. Bradley, 440 U.S. 93, 111 (1979). Furthermore, the courts may not substitute [their] personal notions of good public policy for those of Congress. Schweiker v. Wilson, 450 U.S. 221, 234 (1981). So strong is the presumption of validity under rational basis review that the Supreme Court has applied it to strike down a federal statute as an equal protection violation only one time, almost 40 years ago. See Moreno, supra. 14 That striking fact is a direct product of the deferential nature of rational basis review and how extraordinarily difficult it is for a federal court to conclude the coordinate branches which enacted and signed a law were not just unwise, but wholly irrational. This deferential standard is at its zenith when it comes to statutory definitions and other line-drawing exercises such as DOMA. The Supreme Court has recognized a broad category of regulations in which Congress had to draw the line somewhere, Beach Commcns, 508 U.S. at 316, and which inevitably Cf. Jimenez v. Weinberger, 417 U.S. 628 (1974) (finding unconstitutional under any standard a classification based on illegitimacy, which the Court was then in the process of recognizing as quasi-suspect). The lone exception of Moreno is readily distinguishable. The classification there could not further the interests identified by the government because the vast majority of individuals who it excluded could easily rearrange their affairs to become eligible, while the neediest people would not be able to do so. See Moreno, 413 U.S. at 538. There are no analogous difficulties with DOMA. 37
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require[] that some persons who have an almost equally strong claim to favored treatment be placed on different sides of the line. Mathews v. Diaz, 426 U.S. 67, 83 (1976); see Schweiker, 450 U.S. at 238 (prescribing extra deference for statutory distinctions that inevitably involve[] the kind of line-drawing that will leave some comparably needy person outside the favored circle) (footnote omitted). In such cases, Congress decision where to draw the line is virtually unreviewable. Beach Commcns, 508 U.S. at 316. The Supreme Court has long recognized that governmental definitions of who or what constitutes a family are precisely this kind of line-drawing. In Village of Belle Terre v. Boraas, 416 U.S. 1, 8 (1974), the Court upheld on rational basis review a zoning regulation defining unmarried couples as families permitted to live together, but prohibiting cohabitation by larger groups. The Court rejected the argument that if two unmarried people can constitute a family, there is no reason why three or four may not, noting that every line drawn by a legislature leaves some out that might well have been included. Id. In such cases, said the Court, the decision of the legislature must be accepted unless we can say that it is very wide of any reasonable mark. Id. n.5 (quotation omitted). Thus, DOMA can be struck down as irrational only if the line it draws between a relationship between one man and one woman and every other relationshipa line that virtually every society everywhere has drawn for all of recorded historyis very wide of any

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reasonable mark. Id. To the contrary, DOMA is supported by multiple rational bases. A. Uniquely Federal Interests Support DOMA.

In defining marriage for purposes of federal law, Congress could and did consider the same interests that motivate the states traditional definitions of marriage. See Part IV-B, infra. But Congress also was motivated by several interests particular to the federal government: 15 Creating uniformity in federal marital status across state lines, protecting the public fisc and preserving the judgments of previous Congresses, preserving the federal governments ability to adopt its own definition for federal law purposes, and exercising caution in considering the unknown but surely significant effects of an unprecedented change in our most fundamental social institution. 1. Maintaining a Uniform Federal Definition of Marriage

The district court correctly recognized that, in a nation where states take varying attitudes toward same-sex marriage, DOMA is rationally related to an interest in uniform eligibility for federal marital benefits. App. A-1038. A uniform nationwide definition regarding same-sex relationships ensures that similarly-situated couples will have the same federal benefits regardless of which

See Massachusetts, 682 F.3d at 12 (Congress surely has an interest in who counts as married. The statutes and programs that [DOMA] governs are federal regimes .). 39

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state they happen to live in, and avoids a confusing situation in which same-sex couples would lose (or gain) federal marital status simply by moving between states with different policies on recognition of same-sex marriages. See, e.g., 142 Cong. Rec. 10468 (1996) (Sen. Nickles) (DOMA will eliminate legal uncertainty concerning Federal benefits); id. at 22459 (Sen. Ashcroft) (finding it very important to prevent people in different States [from having] different eligibility to receive Federal benefits); 150 Cong. Rec. 15318 (2004) (Sen. Inhofe) (the issue should be handled on a Federal level [because] people constantly travel and relocate across State lines throughout the Nation). But although the district court acknowledged that DOMA furthers this uniformity interest, it found this interest to be illegitimate because, according to the court, it involves a sweeping federal review of state marital-status determinations that does not square with our federalist system of government. App. A-1039. Remarkably, the district court came to this conclusion even while recognizing that DOMA does not prevent states from recognizing same-sex marriages under their own law. Id. In other words, the district court concluded that when Congress uses the words marriage and spouse in federal statutes, it is the states that get to define what those words mean. This principle would turn federalism on its head. The genius of the framers was in establishing two orders of government, each with its own direct relationship, its own privity, its own set of mutual rights and

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obligations to the people who sustain it and are governed by it. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 838 (1995) (Kennedy, J., concurring). There is nothing in our federal system that obligates the federal government to follow a state definition when it comes to defining a term for federal law purposes. To the contrary, the Supremacy Clause makes clear that it is the federal government, not the states, that can exercise a superior sovereignty. Thus, the district courts theory is antithetical to our basic founding document. Indeed, this is the same untenable theory adopted by the district court in Massachusetts, which even DOJ refuted on appeal and which the First Circuit rejected. Massachusetts, 682 F.3d at 12; Superseding Br. for U.S. Dept of HHS at 55-61, Massachusetts, Nos. 10-2204, 102207, 10-2214 (1st Cir. Sept. 22, 2011). The district courts conclusion that state law can somehow reverse preempt federal law is wholly inconsistent with our basic constitutional structure. Congress can define marriage in apportioning federally-created benefits and duties for the same reasons that it may prescribe the statute of limitations for a federal cause of action or supply law, including a definition of marriage, in federal territories or enclaves: All are areas of appropriate federal concern particularly for uniform distribution of benefitsnone directly interferes with state law, and all are classic exercises of federal authority. Far from amounting to some kind of suspect federal review of state-law status determinations, this is wholly

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unexceptionable from a federalism standpointindeed, the principle is well established that, unless Congress plainly manifests an intent to incorporate diverse state laws into a federal statute, the meaning of [a] federal statute should not be dependent on state law. Spina v. DHS, 470 F.3d 116, 126 (2d Cir. 2006) (quoting United States v. Turley, 352 U.S. 407, 411 (1957)); see Bowen v. Gilliard, 483 U.S. 587, 598 (1987) (noting Congress plenary power to define the scope and the duration of the entitlement to benefits, and to increase, to decrease, or to terminate those benefits based on its appraisal of the relative importance of the recipients needs and the resources available to fund the program (quotation marks omitted; ellipsis in original)); Helvering v. Davis, 301 U.S. 619, 645 (1937) (When money is spent to promote the general welfare, the concept of welfare is shaped by Congress, not the states.). Indeed, as the district court acknowledged, DOMA was intended simply to mak[e] explicit a definition of marriageas a union of opposite-sex spouses that had always been implicit in federal law. App. A-1018 (quoting House Rep. at 10). 16 Moreover, while Congress often has borrowed state marital determinations without change, it also has a long history of enacting federal The courts dictum dismissing pre-DOMA uniformity in federal marital benefits criteria as merely a byproduct of the states definition of marriage, App. A-1038, and of DOMA as expressing a newfound [Congressional] interest in promoting or maintaining consistency in [federal] marital benefits, App. A-1039, therefore is inaccurate. 42
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definitions of marriage that do not simply incorporate state definitions and inevitably will conflict with some of them. See supra pp.5-7. It therefore is no surprise that the district court did not identify even a single case striking down any of these federal definitions of marriage, spouse or any other family-law term on this ground. 17 2. Preserving the Public Fisc and Previous Legislative Judgments

By maintaining the traditional definition of marriage in DOMA, Congress preserved both the public fisc and the legislative judgments of countless earlier Congresses, which used terms like marriage and spouse on the understanding that the programs they created conferred benefits or imposed duties solely on traditional marriages. See House Rep. 18; supra p.8. Saving money by declining to expand pre-existing eligibility requirements is a legitimate government interest. E.g., Equality Found. Of Greater Cincinnati, Inc. v. City of Cincinnati, 128 F.3d 289, 301 (6th Cir. 1997) (even after Romer, the valid interest[] in conserving public and private financial resources is, standing alone, of sufficient weight to justify [omitting local antidiscrimination protections for homosexual persons] under a rational basis analysis); Dandridge v. Williams, 397 U.S. 471, 487 (1970) (The Constitution does not empower this The district courts rule would have prohibited Congress from recognizing interracial marriages for federal purposes when many states refused to, or from currently recognizing same-sex relationships as marriages in most of the country even if Congress desired to. This cannot be the law. 43
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Court to second-guess state officials charged with the difficult responsibility of allocating limited public welfare funds among the myriad of potential recipients.); Hassan v. Wright, 45 F.3d 1063, 1069 (7th Cir. 1995) ([P]rotecting the fisc provides a rational basis for Congress line drawing in this instance.); Assn of Residential Res. in Minn., Inc. v. Gomez, 51 F.3d 137, 141 (8th Cir. 1995) (Preserving the fiscal integrity of welfare programs is a legitimate state interest.). And Congress expressly relied on this cost-saving rationale in enacting DOMA. House Rep. 18. Indeed, Congress realization that recognizing same-sex marriage for federal purposes would have a large and unpredictable effect on the budgets of various federal agenciesbenefitting some and substantially burdening others would be a rational reason to avoid such budgetary turmoil even were there some question whether the overall net effect would be positive or negative. The First Circuit, whose decision the district court followed in other respects, has recognized that DOMA rationally furthers the governments legitimate interest in fiscal prudence. See Massachusetts, 682 F.3d at 9. The district court, however, stated that avoiding budgetary turmoil is not a legitimate government interest without some further justification for how the money is saved. App. A-1040. While this may be true when government withdraws benefits previously offered to a class of people, see Plyler v. Doe, 457 U.S. 202 (1982), that is not what DOMA does. The district court failed to appreciate that, where

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Congress declines to extend benefits to those not previously eligibleas it did in DOMAthe Supreme Court has recognized that this is justified by the government interest in proceeding cautiously and protecting the fisc. Bowen v. Owens, 476 U.S. 340, 348 (1986) (A constitutional rule that would invalidate Congress attempts to proceed cautiously in awarding increased benefits might deter Congress from making any increases at all. The Due Process Clause does not impose any such constitutional straitjacket. (quotation marks omitted)). Similarly, it was reasonable for the Congress that enacted DOMA to preserve the judgments and bargains reached by previous Congresseswhich had calibrated the programs creating marital benefits and duties solely for opposite-sex couplesand to allow those programs to operate in the manner initially intended. In the context of federal regulation and spending, that is surely a rational basis. 3. Caution in Facing the Unknown Consequences of a Novel Redefinition of a Foundational Social Institution and Preservation of Each Sovereigns Ability to Choose Its Own Definition

In enacting DOMA, Congress recognized that marriage between man and woman (to borrow the Supreme Courts words from another context) is deeply embedded in the history and tradition of this country and has become part of the fabric of our society. Marsh v. Chambers, 463 U.S. 783, 786, 792 (1983). Congress decided not to undertake a major and unprecedented redefinition of such an important institution in a way that, because of its very novelty, would have 45

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unpredictable but surely significant consequences. 18 Particularly in light of the traditional role of states serving as laborator[ies] [of] novel social and economic experiments without risk to the rest of the country, New State Ice Co. v. Liebmann, 285 U.S. 262, 309 (1932) (Brandeis, J., dissenting), Congress could reasonably decide to let states experiment, if they saw fit, while the federal government continued to apply the traditional definition for federal-law purposes. Indeed, DOMA furthered the distinct rational basis in preserving each sovereigns ability to define a foundational institution like marriage for itself. When Hawaii appeared to be on the verge of becoming the first jurisdiction to recognize samesex marriage, there was concern that Hawaiis decision would not only govern Hawaii but would effectively make this sensitive determination for other sovereigns. Congress rationally addressed the concern that Hawaiis decision could dictate the definition in other states via full faith and credit principles in Section 2. Section 3 furthers the same rational interest by preserving the ability of Cf. 150 Cong. Rec. 4684 (2004) (Sen. Cornyn) (The burden of proof is on those who seek to experiment with traditional marriage, an institution that has sustained society for countless generations.); id. at 14942 (2004) (Sen. Hatch) (noting the uncertainty of a radical change in a fundamental institution like marriage); id. at 14949 (Sen. Frist) (calling same-sex marriage a vast untested social experiment); id. at 14951 (Sen. Sessions) (I think anybody ought to be reluctant [to say,] everybody has been doing this for 2000 years, but we think we ought to try something different.); id. at 15444 (Sen. Smith) (expressing reluctance to tinker[] with the foundations of our culture, our civilization, our Nation, and our future); 152 Cong. Rec. 10058 (2006) (Sen. Talent) ([T]he evidence is not even close to showing that we can feel comfortable making a fundamental change in how we define marriage .). 46
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the federal sovereign to maintain its own definition, rather than adopting Hawaiis by default. And in choosing a federal definition, Congress acted rationally and cautiously in preserving the traditional definition. Here, the district court correctly recognized that an interest in maintaining the traditional institution of marriage, when coupled with other legitimate interests, could be a sound reason for a legislative classification. App. A-1033 n.3 (citing Lawrence, 539 U.S. at 585 (OConnor, J., concurring)). But it concluded that DOMA cannot rationally further this interest because it deals only with federal law, and does not prohibit states from determining whether same-sex couples can marry under state law. App. A-1034. Therefore, said the court, DOMA cannot[] forestall any adverse social consequences of changing the institution of marriage. App. A-1035. This was error. Its ignores bedrock principles of dual federalism and the reality that federal power is at its zenith when it acts pursuant to its own distinct privity with the citizens, such as when it provides federal benefits or governs federal enclaves. Under anything but the strictest level of constitutional scrutiny, Congress surely is permitted to tailor federal programs to further its legitimate interests even if it does not force the states to adopt identical programs. That respect for dual sovereignty eliminates, rather than causes, any constitutional difficulty. As a result, Congress retention of the traditional definition of marriage

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for federal purposes rationally furthers its interest in preserving that definition, even ifespecially ifit does not force states to follow suit. Having recognized the legitimacy of that interestand concomitantly of caution in accepting the unknown consequences of redefining itthe district court therefore should have upheld DOMA as thoroughly related to it. B. Common Federal-State Interests: Congress Rationally Sought to Encourage Responsible Procreation.

In addition to these uniquely federal rationales, DOMA also is supported by the same rationales that justified the traditional definition of marriage in the first place. The traditional definition recognizes the close relationship between opposite-sex marriages and child-rearing. Until extremely recently children could be conceived only though the union of one woman and one man, and this remains the nearly exclusive means by which new lives are brought into existence. Likewise, [u]ntil a few decades ago, it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex. Hernandez, 855 N.E. 2d at 8. Although marriage fills other functions as well, its defining purpose is the creation of a social structure to deal with the inherently procreative nature of the male-female relationshipthe word matrimony itself implicates parenthood. Marriage attempts to promote permanence and stability, which are vitally 48

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important to the welfare of the children of the marriage. Congress specifically recognized this purpose of marriage in enacting DOMA, noting that [s]imply put, government has an interest in marriage because it has an interest in children. House Rep. 13. This accords with the long tradition of our law, recognizing the tie between marriage and children. 19 Opposite-sex relationships have inherent procreative aspects that can produce unplanned offspring. For this reason, heterosexual relationships implicate the state interest in responsible procreation in a different way, and to a different degree, than do homosexual relationships, and therefore rationally may be treated differently by government. Numerous courts have upheld traditional marriage laws on this basis. 20 Foreign governments have expressed the same view. 21

E.g., William Blackstone, Commentaries on the Laws of England *447 (citing Puffendorf that [t]he duty of parents to provide for the maintenance of their children[] is a principle of natural law; citing Montesquieu that the establishment of marriage in all civilized states is built on this natural obligation); id. *455 ([t]he main end and design of marriage is the protection of the children); Institute for American Values, Marriage and the Law: A Statement of Principles 6, 18 (2006) (large group of family and legal scholars of varying views on same-sex marriage, stating that [m]arriage and family law is fundamentally oriented towards creating and protecting the next generation). See Citizens for Equal Prot., 455 F.3d at 867-68; Adams, 673 F.2d at 1042-43; Conaway v. Deane, 932 A.2d 571, 630-31 (Md. 2007); Andersen v. King Cnty., 138 P.3d 963, 982-83 (Wash. 2006). See French National Assembly, Report Submitted on Behalf of the Mission of Inquiry on the Family and Rights of Children 68 (No. 2832) (Jan. 25, 2006), English translation at http://www.preservemarriage.ca/docs/France_Report_on_the_Family_Edited.pdf, 49
21 20

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In this case, the district court recognized that promoting family values and responsible parenting are legitimate governmental goals, but held that DOMA has no logical relationship with these objectives because, said the court, [i]t does not follow from the exclusion of one group from federal benefits (same-sex married persons) that another group of people (opposite-sex married couples) will be incentivized to take any action, whether that is marriage or procreation. App. A-1035, A-1036 (citation omitted). This is seriously inconsistent with rational basis review, and indeed with equal protection jurisprudence. A definition need only be rational; the exclusion of things not included in the definition need not affirmatively further the interest of things included. The district court therefore was wrong to frame the question as whether the denial of benefits to relationships other than opposite-sex couples serves any particular government interest when considered in a vacuum. In an equal protection challenge, a classification is rational if the inclusion of one group promotes a legitimate governmental purpose, and the addition of other groups would not. Johnson v. Robison, 415 U.S. 361, 383 (1974); see Tigner v. Texas, 68 ([I]t is not possible to consider marriage and filiation separately, since marriage [is] built around children.); id. at 77 (The institution of Republican marriage is inconceivable absent the idea of filiation and the sex difference is central to filiation. It corresponds to a biological realitythe infertility of samesex couples .); Schalk & Kopf v. Austria, No. 30141/04 E.U. Ct. H.R., 44, 63 (2010); Joslin v. New Zealand, No. 902/1999, in Report of the Human Rights Comm., Vol. II, U.N. Doc. A/57/40, 214 (2002). 50

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310 U.S. 141, 147 (1980) (The Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same.). The proper inquiry, therefore, is whether there is a rational reason for extending marital benefits to opposite-sex couples that does not apply in the same way, or to the same degree, with respect to same-sex couples. If the district courts contrary view were the law, then a vast host of government benefits would have to be either extended to virtually everyone, or else eliminated. 22 1. DOMA Rationally Focuses on Opposite-Sex Couples in Subsidizing the Begetting and Raising of Children.

Opposite-sex relationships are unique in their inherent biological tendency to produce childreneven regardless of the couples intentions or plans. Government thus has an interest in channeling potentially procreative heterosexual activity into the stable, permanent structure of marriage for the sake of these childrenan interest that simply does not apply to same-sex couples. Moreover, largely because of this inherently procreative nature of their relationships, opposite-sex couples raise children in significantly greater proportions than do

22

For instance, in Regan v. Taxation With Representation, 461 U.S. 540, 550 (1983), the Supreme Court held it was not irrational for Congress to decide that, even though it will not subsidize substantial lobbying by charities generally, it will subsidize lobbying by veterans organizations, despite the obvious fact that offering a tax benefit to other charities would have little if any effect on the benefit to veterans groups. The same could be said of most other government benefits. 51

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same-sex couples, 23 and only a tiny fraction of all children are raised in households headed by same-sex couples, 24 meaning that government may rationally focus on opposite-sex couples in its efforts to encourage family structures that benefit children. Notably, the rationality of these interests can be determined without inquiring whether the traditional mother-father childrearing arrangement is in any sense better than any other. The district court objected that it [could] not see a link between DOMA and childrearing because DOMA does not determine who may adopt and raise children. App. A-1036, A-1037. But the fact that persons not in traditional marriages are legally permitted to assume parental rights and responsibilities does
23

2010 Census data indicate that only one in six same-sex couples are raising children. Daphne Lofquist et al., Households and Families: 2010, Census Br. C2010BR-14 (Apr. 2012), tbl. 3 (Same-sex partner preferred estimates data), http://www.census.gov/prod/cen2010/briefs/c2010br-14.pdf. This compares with the approximately 40% of opposite-sex couples (both married and unmarried) raising children. Id. (Husband-wife households and Opposite-sex partner data). Furthermore, the proportion of same-sex couples raising children is falling over time, as [d]eclines in social stigma make their members less likely to have children with different-sex partners before starting a household with a same-sex partner. Gary J. Gates, Family Focus on LGBT Families F2 (Winter 2011), http://williamsinstitute.law.ucla.edu/wp-content/uploads/Gates-Badgett-NCFRLGBT-Families-December-2011.pdf.

As of 2005 270,313 of the U.S.s children are living in households headed by same-sex couples, Adam P. Romero et al., Census Snapshot 2 (Dec. 2007), http://escholarship.org/uc/item/6nx232r4. That is 0.37% of the 73,494,000 children in the United States that year. See Living Arrangements of Children Under 18 Years Old: 1960 to Present, U.S. Census Bureau, available at http://www.census.gov/hhes/families/data/children.html (download Table CH-1) (number of children). 52

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not change the unique biological connection between opposite-sex relationships and childbearing, nor make it irrational for Congress to offer special encouragement for opposite-sex couples to engage in their inherently procreative relationships within marriage. Since only a man and a woman can beget a child together, making those same parties the only ones eligible for marriage is a rational way of linking the twoeven if the state does not require married couples to be able and willing to procreate. Cf. Nguyen v. INS, 533 U.S. 53, 70 (2001) (even under heightened scrutiny, where a statute classifies based on a genuine biological difference, the courts have not required that the statute be capable of achieving its ultimate objective in every instance). This is particularly true where most opposite-sex couples ability and willingness to raise children cannot be determined in advance without intolerable and possibly unconstitutional intrusions on their privacyand even then could not be determined with much reliability in many cases. 2. DOMA Rationally Encourages and Subsidizes the Raising of Children by Their Own Biological Mothers and Fathers.

One of the strongest presumptions known to our culture and law is that a childs biological mother and father are the childs natural and most suitable guardians and caregivers, and that this family relationship will not lightly be

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interfered with. E.g., Santosky v. Kramer, 455 U.S. 745, 761 n.11, 766 (1982). 25 Our tradition offers the same protections for an adoptive parent-child relationship, once it is formedbut the stringent standards imposed for eligibility to adopt, which never would be required as a condition of custody of ones own biological offspring, demonstrate the unique value we place on the biological parent-child relationship. See Stanley v. Illinois, 405 U.S. 645, 651 (1972) (noting the protected interest of a man in the children he has sired and raised). And there is a sound logical basis for this bedrock assumption: Biological parents have a genetic stake in the success of their children that no one else does. It thus is rational for government to offer special encouragement for relationships that result in mothers and fathers jointly raising their biological childrenwhich is exactly what DOMA and any traditional marriage law does. This interest simply does not apply to same-sex couples. 26

International law recognizes the same principle. See United Nations Convention on the Rights of the Child, art.7, 28 I.L.M. 1448, 1460 (Nov. 20, 1989) (a child has, as far as possible, the right to know and be cared for by his or her parents). Dispute has recently erupted over whether social science research suggests that the outcomes of children raised by same-sex couples are similar to those of children raised by their biological parents. The appellate courts have rejected plaintiffs requests to constitutionalize the limited evidence on this score. Lofton, 358 F.3d at 824-26; Hernandez, 855 N.E.2d at 7-8. And for good reason: Ms. Windsors expert admitted in this very case that developmental psychology involves complex and nuanced questions that rarely can be evaluated in a statistically rigorous fashion that permits conclusions to be generalized to the 54
26

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The district courts observation that there is no legal bar to children being raised by persons other than their biological mothers and fathers, App. A-10361037, cannot change the rationality of the governments recognition that biological parents are the presumptive and normative guardians of their children, or the government interest in encouraging situations in which those parents raise their children together in a marriage. Plainly, this interest is a rational reason for recognizing traditional marriages but not other relationshipsexactly as DOMA does. 3. DOMA Rationally Encourages Childrearing in a Setting with Both a Mother and a Father.

Even aside from the biological link between parents and children, biological differentiation in the roles of mothers and fathers makes it fully rational to encourage situations in which children have one of each. The two sexes are not fungible; a community made up exclusively of one [sex] is different from a community composed of both. United States v. Virginia, 518 U.S. 515, 533 (1996) (quotation marks omitted). Common sense, and the experience of countless parents, informs us that children relate and react differently to mothers and fathers based on the typical differences between men and women in parenting style, size, and voice tone.

population at large. App. A-400; cf. Craig v. Boren, 429 U.S. 190, 204 (1976) ([P]roving broad sociological propositions by statistics is a dubious business.). 55

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Moreover, the different challenges faced by boys and girls as they grow to adulthood make it eminently rational to think that children benefit from having parental role models of both sexes. The bald declaration of Ms. Windsors expert that empirical research has demonstrated that father absence is not itself important to adjustment, App. A-395, and that children can substitute other adults in society for a parental role model of one sex or the other, App. A-396, is not even close to sufficient to make it irrational for Congress to conclude otherwise. Finally, Congress could also have rationally concluded that opposite-sex couples are more likely to remain together in committed relationships than are same-sex couples, as recent empirical evidence tends to suggest. E.g., M. Kalmijn, et al., Income Dynamics in Couples and the Dissolution of Marriage and Cohabitation, 44 Demography 159, 170 (2007); G. Andersson, et al., The Demographics of Same-Sex Marriages in Norway and Sweden, 43 Demography 79, 93 (2006). IV. ANY REDEFINITION OF MARRIAGE SHOULD BE LEFT TO THE DEMOCRATIC PROCESS. When it comes to same-sex marriage, it is difficult to imagine an area more fraught with sensitive social policy considerations in which federal courts should not involve themselves if there is an alternative. Smelt, 447 F.3d at 681. Fortunately, there is an alternative: Same-sex marriage is being actively debated in legislatures, in the press, and at every level of government and society across the 56

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country. That is how it should be. These fora require participants on both sides to persuade those who disagree, rather than labeling them irrational or bigoted. Importantly, gay-rights supporters have ample and increasing clout in Congress and the Executive Branch. Congress recent repeal of Dont Ask, Dont Tell is one prominent example. See Pub. L. No. 111-321, 124 Stat. 3515. And bills to repeal DOMA are pending in both houses of Congress; one has passed the Senate Judiciary Committee. See Respect for Marriage Act, H.R. 1116, 112th Cong. (2011); Respect for Marriage Act, S. 598, 112th Cong. (2011). By contrast, the courts can intervene in the debate only to cut it short, and only by denouncing the positions of the hundreds of Members of Congress who voted for DOMA, of the President who signed it, and of a vast swathe of the American people as not just mistaken or antiquated, but as wholly irrational. That conclusion is unwarranted as a matter of constitutional law, and judicially constitutionalizing the issue of same-sex marriage is unwarranted as a matter of sound social and political policy while the American people are so actively engaged in working through this issue for themselves. Instead, this Court should permit[] this debate to continue, as it should in a democratic society. Washington v. Glucksberg, 521 U.S. 702, 735 (1997). In short, the New York Court of Appeals got it exactly right in Hernandez:

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Whether [same-sex] marriages should be recognized is a question to be addressed to the legislature, the elected representatives of the people. 855 N.E.2d at 5, 12. CONCLUSION For the foregoing reasons, the judgment of the district court should be reversed, and the case remanded with instructions that the complaint be dismissed with prejudice.

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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 Intervenor-DefendantAppellant the Bipartisan Legal Advisory Group of the U.S. House of Representatives 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 UNITE STATES HOUSE OF REPRESENTATIVES 219 Cannon House Office Building Washington, D.C. 20515 (202) 225-9700 Dated: August 10, 2012

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CERTIFICATE OF COMPLIANCE WITH RULE 32(a) 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 13,992 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 2010 in 14-point Times New Roman type. /s/ H. Christopher Bartolomucci H. Christopher Bartolomucci Attorney for the Bipartisan Legal Advisory Group of the United States House of Representatives BANCROFT PLLC 1919 M Street, N.W., Suite 470 Washington, DC 20036 (202) 234-0090