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Edie Windsor's Reply Memo re: Motion to Strike

Edie Windsor's Reply Memo re: Motion to Strike

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Published by JoeSudbay
Edie Windsor's lawyers respond to BLAG"s response to their motion to strike testimony.
Edie Windsor's lawyers respond to BLAG"s response to their motion to strike testimony.

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Published by: JoeSudbay on Aug 22, 2011
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01/11/2013

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UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORK EDITH SCHLAIN WINDSOR, in her capacity as Executor of the estate of THEACLARA SPYER,Plaintiff,v.THE UNITED STATES OF AMERICA,Defendant.10 Civ. 8435 (BSJ) (JCF)ECF Case
REPLY MEMORANDUM IN SUPPORT OFMOTION TO STRIKE DOCUMENTS REFERENCEDBY DEFENDANT-INTERVENOR IN OPPOSITION TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
PAUL, WEISS, RIFKIND, WHARTON& GARRISON LLPRoberta A. Kaplan, Esq.Andrew J. Ehrlich, Esq.1285 Avenue of the Americas New York, NY 10019-6064(212) 373-3000rkaplan@paulweiss.comaehrlich@paulweiss.comAMERICAN CIVIL LIBERTIES UNIONFOUNDATIONJames D. Esseks, Esq.Rose A. Saxe, Esq.125 Broad Street New York, NY 10004(212) 549-2500 jesseks@aclu.orgrsaxe@aclu.org NEW YORK CIVIL LIBERTIES UNIONFOUNDATIONMelissa Goodman, Esq.Alexis Karteron, Esq.Arthur Eisenberg, Esq.125 Broad Street, 19th Floor  New York, NY 10004(212) 607-3300mgoodman@nyclu.orgakarteron@nyclu.orgaeisenberg@nyclu.org
 Attorneys for Plaintiff Edith Schlain Windsor 
Case 1:10-cv-08435-BSJ -JCF Document 73 Filed 08/22/11 Page 1 of 12
 
1Defendant-Intervenor, the Bipartisan Legal Advisory Group (“BLAG”), hasconceded that the documents it seeks to rely upon in opposition to Plaintiff’s motion for summary judgment constitute undisclosed and inadmissible hearsay. It argues instead that thisCourt should disregard the many time-tested rules cited in Plaintiff’s moving brief that have longgoverned the trial courts when finding facts because this is a constitutional case.Neither the “legislative facts” doctrine nor the cases that BLAG cites, however,require this Court to dispense with the Federal Rules of Civil Procedure or Evidence, or thisCourt’s Scheduling Order of May 11. Contrary to BLAG’s assertion, this is not a case limited tothe question of “whether a particular piece of legislation passes rational-basis review.” (BLAGBr. at 5.) Plaintiff has put at issue what level of scrutiny applies to her claims (given various
 facts
about the relationship of gay men and lesbians to society) and whether, under either heightened scrutiny or rational basis review, DOMA satisfies that scrutiny.Trial courts hear constitutional cases, including relevant factual disputes likethose presented here, in the usual course and, when doing so, follow the same procedures as inany other case. And given the importance of the factual questions at issue here, Plaintiff respectfully submits that this Court should rely on the very rules BLAG seeks to avoid—rulesdesigned to ensure that the materials the Court considers are actually reliable.Indeed, as explained further below, Plaintiff is in the unique position of being ableto demonstrate in this case precisely why the law demands such procedures. Professor LisaDiamond, the author of two of the academic articles Plaintiff seeks to strike, has submitted anaffidavit testifying that BLAG has in fact
distorted 
her research and that she never would haveagreed to testify to the propositions BLAG has advanced in its papers. It is hard to imagine amore concrete example of why the materials submitted by BLAG are not reliable. Had BLAG
Case 1:10-cv-08435-BSJ -JCF Document 73 Filed 08/22/11 Page 2 of 12
 
2followed the rules and used as expert witnesses any of the authors it cites (as contemplated bythe May 11 Scheduling Order), and had Plaintiff’s counsel then had the opportunity to deposethem, Plaintiff would have been able to obtain similarly damaging testimony from them as well.
I.The Hearsay At Issue
In its opposition to Plaintiff’s summary judgment motion, BLAG relied on dozensof inadmissible hearsay documents. (
See, e.g.
,BLAG 56.1 ¶¶ 30, 32, 61, 64, 65, 66, 68, 70, 79,81.) Yet, contrary to BLAG’s assertion, Plaintiff did not move to strike materials about “thedegree of homosexual persons’ political power [or] the nature of discrimination that homosexual persons have faced.” (BLAG Br. at 10.) This is because Plaintiff did not seek to strike anymaterials the underlying substance of which might arguably be the type of information of whichthe Court could take judicial notice (such as the pending repeal of “Don’t Ask Don’t Tell”).Instead, Plaintiff sought to strike just twelve of BLAG’s many hearsaydocuments, relating only to two discrete subjects:1. The immutability of sexual orientation. For example, BLAG selectively citescertain statistics from a study in support of its assertion that sexual orientation isnot an immutable characteristic.
See
Entry 3 of Appendix to Motion to Strike(“App. Entry”).2. The effect on children of having gay parents. For example, BLAG refers to a2004 article from Slate.com to establish that studies concerning parenting bylesbians and gay men were flawed.
See
App. Entry 7.These are paradigmatic examples of matters that not only must be resolved through a testedfactual record but, because of their social scientific nature, are within the appropriate purview of expert, not lay, testimony. They are certainly not factual matters that are within the generalknowledge of the Court or counsel, so resort to untested sources of information is particularlyinappropriate here.
Case 1:10-cv-08435-BSJ -JCF Document 73 Filed 08/22/11 Page 3 of 12

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