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No.
12-307
In
The
~ u p r e m e
<!Court
of
toeWuiteb
~ t a t e g
THE
UNITED
STATESOF
AMERICA,
Petitioner,
v.
EDITH
SCHLAINWINDSOR
and
BIPARTISAN
LEGAL
ADVISORY
GROUP
OF
THE
UNITED
STATES
HOUSE
OFREPRESENTATIVES,
Respondents.
On
Petition
for
a
Writ
of
Certiorari
Before
Judgment
to
the
United
States
Court
of
Appeals
for
the
SecondCircuit
BRIEF
IN
OPPOSITION
KERRYW.
KIRCHERPAUL
D.
CLEMENT
GeneralCounselCounsel
of
Record
WILLIAMPITTARD
H.
CHRISTOPHER
BARTOLOMUCCI
DeputyGeneralCounsel
NICHOLAS
J.
NELSON
CHRISTINEDAVENPORTMICHAEL
H.
MCGINLEY
SeniorAssistantCounsel
BANCROFT
PLLC
TODD
B.
TATELMAN
1919
M
Street,
N.W.
MARY
BETH
WALKER
Suite
470
ELENI
M.
ROUMEL
Washington,
D.C.
20036
AssistantCounsels
(202)234-0090
OFFICE
OF
GENERAL
COUNSEL
pclement@bancroftpllc.comU.S.
HOUSE
OFREPRESENTATIVES
219
Cannon
House
Office
Bldg.
Washington,
D.C.
20515(202)225-9700
Counselfor
Respondent
12-307 EQCF Dkt #5 Filed 10/19/2012
 
QUESTIONS
PRESENTED
Section3of
the
Defenseof
Marriage
Act("DOMA")provides
that
for
purposes
of
federal
law
"the
word
'marriage'
means
onlya
legalunionbetween
one
man
and
one
womanas
husband
and
wife,
andthe
word
'spouse'
refers
onlytoa
person
of
the
oppositesexwho
is
a
husband
orwife."1U.S.C.
§
7.
The
questions
presented
are:
(1)
DoesSection3ofDOMA
violate
the
equal
protectioncomponent
of
the
Due
Process
Clause
of
theFifth
Amendment?
(2)
Does
Plaintiff-Respondent
have
standing
to
challenge
DOMAgiven
that
her
standing
ispremised
ona
Canadianmarriage
certificate
obtained
at
a
timewhen
NewYork
law
did
not
recognize
same-sex
marriage?
(3)
Petitionerwas
sued
because
of
thehandling
ofa
taxreturn
by
a
federal
agency
that
does
nothavegeneral
responsibility
for
administering
DOMA.
Under
thosecircumstances,
when
the
executive
branch
argues
that
a
federal
statute
isunconstitutional
and
prevails
in
the
lowercourts,
and
where
the
House
of
Representatives
has
intervened
todefend
thestatute,
does
the
executive
branch
have
prudentialstanding
to
seek
this
Court's
reviewof
thejudgment
it
requested?
 
11
PARTIESTOTHEPROCEEDING
Respondent
theBipartisan
Legal
AdvisoryGroupof
the
U.S.
House
of
Representatives
("House")
was
the
intervenor-defendant
in
the
districtcourt
and
an
appellant
in
the
SecondCircuit.
1
The
statement
by
theDepartment
of
Justice
("Department")
inits
Petition
that
the
House
intervened
merely
"to
present
arguments"
in
favorofDOMA,
see
Pet.
(II),
isinaccurate.
Although
theDepartment
argued
in
the
district
court
that
the
House's
interventionshould
be
limited
to
those
terms,
the
districtcourt
grantedthe
House
interventionas
a
party-defendant
tofully
litigate
DOMA's
constitutionality
under
equal
protection
principles.
1
The
UnitedStates
House
of
Representatives
hasarticulated
its
institutional
position
in
litigation
mattersthrough
afive-
member
bipartisan
leadership
groupsince
at
leastthe
early
1980's
(although
the
formulation
of
the
group's
namehas
changedsomewhat
overtime).Since1993,
the
House
ruleshave
formallyacknowledged
and
referred
to
theBipartisan
Legal
AdvisoryGroup,
as
such,
in
connection
withits
functionofprovidingdirectionto
the
Officeof
the
General
Counsel.
See,e.g.,
Rule1.11,Rulesof
the
House
of
Representatives,
103rd
Congo
(1993);RuleII.8,Rulesof
the
House
of
Representatives,
112th
Congo
(2011).While
the
groupseeks
consensus
whenever
possible,it,like
the
institution
it
represents,
functionsona
majoritarian
basiswhen
consensus
cannot
beachieved.
The
Bipartisan
Legal
AdvisoryGroup
currently
is
comprised
of
the
Honorable
John
A.
Boehner,
Speaker
of
the
House,
the
HonorableEricCantor,MajorityLeader,
the
HonorableKevinMcCarthy,MajorityWhip,
the
Honorable
Nancy
Pelosi,DemocraticLeader,
andthe
Honorable
Steny
H.
Hoyer,DemocraticWhip.
The
Democratic
Leader
andthe
DemocraticWhip
have
declinedto
supportthe
position
taken
by
the
Groupon
the
merits
ofDOMASection3's
constitutionalityin
this
and
other
cases.
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