3:10-cv-01750 #100

Case 3:10-cv-01750-VLB Document 100 Filed 09/14/11
3 Pages
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT CIVIL ACTION NO. 3:10 CV 1750 (VLB) ___________________________________________ JOANNE PEDERSEN & ANN MEITZEN, ) GERALD V. PASSARO II, ) LYNDA DEFORGE & RAQUEL ARDIN, ) JANET GELLER & JOANNE MARQUIS, ) SUZANNE & GERALDINE ARTIS, ) BRADLEY KLEINERMAN & JAMES GEHRE, and ) DAMON SAVOY & JOHN WEISS, ) ) Plaintiffs, ) ) v. ) ) OFFICE OF PERSONNEL MANAGEMENT, ) TIMOTHY F. GEITHNER, in his official capacity ) as the Secretary of the Treasury, and ) HILDA L. SOLIS, in her official capacity as the ) Secretary of Labor, ) MICHAEL J. ASTRUE, in his official capacity ) as the Commissioner of the Social Security ) Administration, ) UNITED STATES POSTAL SERVICE, ) JOHN E. POTTER, in his official capacity as ) The Postmaster General of the United States of ) America, ) DOUGLAS H. SHULMAN, in his official ) capacity as the Commissioner of Internal ) Revenue, ) ERIC H. HOLDER, JR., in his official capacity ) as the United States Attorney General, ) JOHN WALSH, in his official capacity as Acting ) Comptroller of the Currency, and ) THE UNITED STATES OF AMERICA, ) ) Defendants. ) ___________________________________________)
SECOND AFFIDAVIT OF GARY D. BUSECK
I, Gary D. Buseck, hereby depose and say as follows: 1. I am one of the attorneys representing the Plaintiffs in the above-
referenced action. 2. Attached to this affidavit are true and accurate copies of the following
documents: EXHIBIT A: Excerpts from the Deposition of Letitia Anne Peplau, Ph.D., Friday, June 17, 2011, Title Page and pp. 25, 51-53 and 100.1 EXHIBIT B: Excerpts from the Deposition of Nancy F. Cott, Ph.D., Wednesday, July 6, 2011, Title Page and pp. 22, 26, 52-53 and 59-60. EXHIBIT C: Excerpt from the Deposition of Michael E. Lamb, Ph.D., Friday, June 24, 2011, Title Page and pp. 76, 82-83 and 85-86. EXHIBIT D: Excerpt from the Deposition of George A. Chauncey, Tuesday, July 12, 2011, Title Page and p. 53. EXHIBIT E: Plaintiffs Statement Pursuant to Local Rule 56.1, filed in Windsor v. U.S., No. 10-CV-8435 (BSJ)(JCF)(S.D.N.Y.) (ECF No. 37, June 24, 2011). EXHIBIT F: Intervenor-Defendants Local Rule 56.1 Response to Plaintiffs Statement of Material Facts, filed in Windsor v. U.S., No. 10CV-8435 (BSJ)(JCF)(S.D.N.Y.) (ECF No. 51, August 1, 2011). EXHIBIT G: The Bipartisan Legal Advisory Group of the U.S. House of Representatives Objections and Responses to Plaintiffs First Set of Requests for Admissions (amended) (August 2, 2011). EXHIBIT H: IRS Determination Letter to Suzanne Artis, dated February 18, 2011 (redacted to delete personal information).
The title page of each of the deposition transcripts referenced in this affidavit carry a caption from Windsor v. U.S., No. 10-CV-8435 (BSJ)(JCF) (S.D.N.Y.). Each deposition was taken with the understanding that it would be used in the present case as well. (See Docket No. 54, Scheduling Order, May 27, 2011, 2). 1
EXHIBIT I:
Excerpt from IRS Publication 17 Your Federal Income Tax For Individuals 2009 version Title Page and pp. 22-23.
EXHIBIT J: Excerpt from IRS Publication 17 Your Federal Income Tax For Individuals 1995 version Title Page and pp. 22-23. EXHIBIT K. IRS Information Letter 2001-0294, dated December 31, 2001.
Signed under the pains and penalties of perjury this 14th day of September, 2011.
/s/ Gary D. Buseck _____________________________________ Gary D. Buseck
CERTIFICATE OF SERVICE I hereby certify that on September 14, 2011, a copy of the foregoing Second Affidavit of Gary D. Buseck was filed electronically. Notice of this filing will be sent by e-mail to all parties by operation of the Courts electronic filing system. Parties may access this filing through the Courts CM/ECF System. /s/ Gary D. Buseck ___________________________ Gary D. Buseck
Case 3:10-cv-01750-VLB Document 100-1 Filed 09/14/11 7 Pages
EXHIBIT A
Letitia Anne Peplau
June 17, 2011 Page 1
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK EDITH SCHLAIN WINDSOR, in her capacity as Executor of the Estate of CLARA SPYER, Plaintiff, -againstTHE UNITED STATES OF AMERICA, Defendant. (Caption continued on next page. 10-CV-8435
DEPOSITION OF LETITIA ANNE PEPLAU, Ph.D.,
Friday, June 17, 2011
Telephone: 212.349.9692 Facsimile: 212.557.2152
ESQUIRE
(MBTankoos Reporting
One Penn Plaza
Suite 4715 New York, NY 10119
Letitia Anne Peplau
June 17, 2011 Page 25
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. homosexual
L.A. Peplau, Ph.D. acts? Object to the form.
MR. BENSON:
Same objection. You know, how I would classify such a
person would depend on the goal of the research project. Researchers who are
interested in studying the transmission of sexually transmitted diseases might be particularly interested in studying men who
have sex with men regardless of whether they identify as heterosexual or gay. And a term
that is commonly used for that for those men is men who have sex with men, MSM. Q. birth? MR. BENSON: Objection to form. Can sexual orientation be defined at
What research shows is that people orientation
come to understand their sexual
most typically during adolescence, so I would say that looking at a newborn, I would not be able to tell you what that child's orientation is going to be. Q. In paragraph 15 of Exhibit 2, you sexual
describe the continuum of sexual orientation.
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Letitia Anne Peplau
June 17, 2011 Page 51
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L.A. Peplau, Ph.D. and same sex couples. The stigma and
discrimination perpetuated by DOMA harms not individuals in legal same sex marriage but gay men, lesbians and bisexuals as a group." How does DOMA stigmatize those who have a homosexual sexual orientation? MR. BENSON: Objection to form.
Once again, homosexual is a term Dr. Peplau has said she doesn't use, and I don't think you have otherwise defined it. BY MR. DUGAN: Q. A. Q. Let me rephrase that. Okay. How does DOMA stigmatize gay men.
lesbians and bisexuals as a group? A. In DOMA, the federal government
treats one group of legally married couples differently than another group of legally married couples based solely on their sexual orientation, or in this case the fact that they are more specifically in a same sex relationship. So in that way the federal
government is signaling that it considers same sex married couples to be unworthy of federal
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Letitia Anne Peplau
June 17, 2011 Page 52
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. recognition.
L.A. Peplau, Ph.D. And that failure to recognize
legally married couples and to set them apart and to say they are not worthy of this valued recognition is harmful not only to those couples but more broadly to other lesbians and gay men who are made aware that their federal government to whom they pay taxes and so on is treating members of their community in a second class way. And that's stigmatizing. What do you mean by stigma? By stigma I mean social devaluation
of a category of people based on some characteristic. In this case on sexual
orientation or being in a same sex relationship, treating them differently. Treating them as inferior or deviant or departing from cultural standards. Q. How do you measure stigma? MR. BENSON: Objection to form.
There are many markers of stigma or So one reflection of
stigma takes many forms.
stigma would be public attitudes of disapproval and lack of acceptance for
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Letitia Anne Peplau
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L.A. Peplau, Ph.D. lesbians and gay men in their relationships. Another indicator of stigma would be hate crimes perpetrated against people because they are in a same sex couple or because they are believed to be gay or lesbian. Discrimination against a couple in housing or in service by clerks would be examples of stigma. Stigma can be these larger things like hate crimes, but it can also be reflected in smaller every day experiences that are sometimes referred to as micro aggressions where same sex couples or individuals may overhear things, may be put in a situation where they have to make a decision that a heterosexual would not about whether to disclose their relationship status or not. So stigma can take many, many forms, and really it is a social cultural phenomena with many manifestations, and I believe that DOMA is part of that, it reflects broad cultural stigma and it perpetuates it. Q. stigma? In your research, how do you quantify
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L e t i t i a Anne P e p l a u
June 17,
2011
Page 100 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 L.A. gay male c o u p l e s Q. Thank Peplau, Ph.D. monogamous.".
t o be s e x u a l l y
you.
Next, I would like you to turn to Exhibit 4, which is the Herek article entitled, "Demographic, Psychological and Social Characteristics of Self-Identified Lesbian, Gay and Bisexual Adults in a U.S. Probability Sample." When you have it, Dr. Peplau, if I could ask you to turn to table 3, please. A. Q. Yes. Do you recall that during his
questioning Mr. Dugan asked you some questions about the final column on the right of this article? A. Q. Yes. Can you please comment on the
percentage of total gay men, lesbians and bisexual men and women who recorded having either no choice at all or only a small amount of choice or perceived choice about their sexual orientation? A. Yes. The total percent in that
classification would be 74.8 percent.
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Case 3:10-cv-01750-VLB Document 100-2 Filed 09/14/11
8 Pages
EXHIBIT B
In The Matter Of:

EDITH SCHLAIN WINDSOR v. THE UNITED STATES OF AMERICA
___________________________________________________
NANCY F. COTT, PH.D. - Vol. 1

July 6, 2011
___________________________________________________
NANCY F.
COTT, PH.D. - 7/6/2011

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the states' interest in marriage today, nor is it historically correct to say that a biological link between parents and children is a necessary foundation for marriage or the principal or sole reason why marriage is good for society." On what do you base your conclusion in this paragraph? A I base my conclusion on 20 years of research
into these questions. Q A And what has that research demonstrated? That there are several purposes why states have
bothered to structure the marriage institution, and they are economic and political. They do have to do with the
support of dependent children, but they also have to do with the couple joining in marriage, supporting one another, and creating a household which will enable them to survive and provide for any dependents they may have who might be their own children but might also be other orphans, servants, dependent relatives, old people, and so on. Q Have any states in the United States ever
defined marriage totally apart from the biological parental link that you speak of in Paragraph 21? MR. EHRLICH: in what way? Objection to the form. Defined
I'm not sure I understand the question.
Merrill Corporation - New York 1-800-325-3376 www.merrillcorp.com/law

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neutrality"? A Yes. In much of marriage law in the past,
there were roles assigned to the husband and roles assigned to the wife that were different. The husband was assumed just to take one major differentiation, to be the provider of economic sustenance of the couple, whereas the wife's economic contribution to the couple and to the household was in her service to her husband and her obedience to his needs and his wishes, including the turning over of any wages she earned and property she owned to him. What gender neutrality means that both husband and wife, the two spouses, still have economic roles but the wife might be the one who provides or -- in other words, each partner has the same economic responsibility, not determined by what sex the partner happens to be. Q Does this mean there are no differences between
men and women? MR. EHRLICH: Objection to the form. And
beyond the scope of this affidavit. But of course you can answer. A I think that's a silly question because how
could law -- one specific law mean something so great as there are no differences between men and women? The

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to marry legally.
And other nonconforming groups were
bunches of free lovers or utopian communards who lived in small groups of their own with their own marriage rules which frequently flouted the rules of states. But
those groups were policed by state authorities in this period. Q them? A of. Q If you could, turn to page 110. It's just the Not that I can think of. Not that I'm aware Did the federal government ever try to police
next page.
In the final paragraph you write, "The
suggestion to federalize marriage law came up to the differences among states' grounds for divorce seems reformers in unhealthy provocation to migrate in order to shed a spouse. A uniform national legal code for
marriage and divorce would fix that and also procure the lack of unanimity among states on the validation of informal marriage. This proposal became a favorite of
reformers of many different stripes, brought time and again before congress, but the individual states too jealously guarded their domestic institutions for it to become a reality." Were there actual votes on federalizing marriage law?

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I can't say.
I am not entirely sure.
It's a
detail that I probably knew when I wrote this book. Certainly whenever an amendment to the constitution to federalize marriage and divorce law was brought before congress, it always failed. Q Do you recall the percentages of -- in those
votes for those marriage amendments? A Q A Q I don't recall. Was it overwhelming? I don't recall. And then in that same paragraph you talk about
how the U.S. Congress authorized a survey of the nation's marital behavior. MR. EHRLICH: Generally? A What did that survey show?
Objection to the form.
I mean, I think it was pretty broad. I mean, what it showed was
I can answer that.
that there were significant differences among states and particularly the frequency of divorce. The fact that it
indicated to most people interested in these questions that there was far more divorce than they thought wise was the most striking finding of these statistics, the most remarked-upon finding at the time. Q If we could, turn to 112. The beginning of the
first full paragraph on page 112, you write, "The Morrill bill of 1862, which made bigamy a federal crime

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MS. LIN:
No. I have just a couple of
MR. EHRLICH:
questions, Professor Cott. EXAMINATION BY MR. EHRLICH: Q In your affidavit at Paragraph 74, we've spent
some time today talking about the federal government's involvement indirectly in making or breaking marriages in exceptional situations. A Q Right. And my question to you, Professor, could the,
is -- and you identified two of those in your affidavit, correct? A Q Right. And they're discussed at some length in your
book about which Mr. Dugan examined you? A Q Yes. And is there a common thread to those two
exceptional circumstances that you identify in your affidavit and discuss in your book? A Yes, there is. That is, in both of these cases And in the There And
where -- well, in Utah, congress acted.
Freedmen's Bureau, a federal agency was set up.
was no state to conduct jurisdiction over marriage. in both cases congress had plenary power to do

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everything in the territory that was being discussed, Utah in one case or these occupied territories in another. So in certain ways I think both of these examples underline the respect that congress had for state the jurisdiction over the making and breaking of marriages in that with the Freedmen's Bureau, that as soon as the southern states were reconstituted, the Freedmen's Bureau folded and withdrew from marriage authorities at all from, you know, conducting or doing anything direct. And in Utah likewise, that all of this
campaign was carried on by federal authorities with an eye toward Utah becoming a state, after which point congress or other agencies would not have that power. Q And just directing your attention to page 86 of
your book, and you can either use the excerpts or the original. A Q Yeah. At the bottom of 86, Mr. Dugan directed you to
the first two sentences of -- carryover paragraph of 86 to 87 concerning the role of the Freedmen's Bureau. I'd
like to direct your attention to the following sentence which begins on the bottom of 86 and turns over to 87. And if you could, just explain how that relates to your conclusions and opinions in this case.

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7 Pages
EXHIBIT C
Michael E. Lamb, Ph.D.
June 24, 2011 Page 1
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -------------------------------------EDITH SCHLAIN WINDSOR, in her capacity as Executor of the Estate of CLARA SPYER, Plaintiff, -againstTHE UNITED STATES OF AMERICA, Defendant. -------------------------------------UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT -------------------------------------JOANNE PEDERSEN & ANN MEITZEN, GERALD V. PASSARO II, LYNDA DEFORGE & RAQUEL ARDIN, JANET GELLER & JOANNE MARQUIS, SUZANNE & GERALDINE ARTIS, BRADLEY KLEINERMAN & JAMES GEHRE DAMON SAYVOY & JOHN WEISS, Plaintiffs, Civil Action No. -against310 CV 1750 (VLB) OFFICE OF PERSONNEL MANAGEMENT, TIMOTHY F. GEITHNER, in his official capacity as the Secretary of the Treasury, and HILDA L. SOLIS, in her official capacity as the Secretary of Labor, et al., Defendants. -------------------------------------DEPOSITION OF MICHAEL E. LAMB, Ph.D. Friday, June 24, 2011 10-CV-8435
June 24, 2011 Page 76
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M. Lamb Does that fact limit what one can predict about children raised by male, same-sex partners? MR. RIEMAN: Objection to form.
Well, as I said earlier, it's a fact
that there have been more studies that are focused on the adjustment of children raised by lesbians rather than by gay parents. It's a fact
that results of studies that are focused on the children in both of those contexts are similar to one another. And it's a fact that in both
contexts one finds that the adjustment of children is affected not by the sexual orientation or by the family structure but by the family process variables that we talked about earlier this morning. Q. Are the authors right to say that
studies of same-sex parents have almost exclusively focused on families headed by lesbian mothers? MR. RIEMAN: Objection to form.
As I said, it is the case that there
are fewer studies of gay fathers than of lesbian mothers. And so at the time that this was
June 24, 2011 Page 82
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M. Lamb matched on a variety of factors who have been raised by heterosexual parents. Q. If I can direct you to the second
paragraph on the first page, the second sentence of that paragraph, the authors write, "We still have relatively few studies of adolescent offspring of lesbian or gay parents however, and some have advised caution when generalizing the results of research conducted with young children to adolescents." Is it still the case that there are relatively few studies of adolescent offspring of lesbian or gay parents? A. There are fewer studies of adolescents I think that
than there are of younger children.
this statement here is part of a way of underscoring the importance of this research. And it is important research. But there are
several other studies that have looked at adolescent offspring living with same-sex parents. Q. Does the fact that there are, I think
you said, fewer studies on adolescents counsel us to be caution about drawing conclusions about
June 24, 2011 Page 83
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M. Lamb adolescents who are raised by same-sex parents? A. Well, I don't think it does because
the results of those fewer studies are consistent with the results of other research that looks at children's adjustment and other research that looks at adolescents and the factors that are associated with their adjustment. Again, I think what's important to underscore is how important it is to look at any set of findings in context. In that context, the
fact that studies like this show that children being raised by same-sex parents are as likely to be well adjusted as children raised by -sorry -- as adolescents raised by heterosexual parents and that when one looks at the correlates of better or worse adjustment, that it's the same factors regardless of sexual orientation. It is the convergence between the findings and the broader body of literature that is really the key thing we want to look at. MR. DUGAN: marked Exhibit 9. (Lamb Exhibit 9, Kurdek article, was marked for identification as of I hand out what will be
June 24, 2011 Page 85
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M. Lamb lesbian couples have used self-report surveys. Future work could address some of the biases associated with self-report data by employing behavioral observations as well as peer or partner ratings." Do you agree with Dr. Kurdek that this has been a limitation in the studies? MR. RIEMAN: Objection to form.
Well, he's certainly correct in noting
these issues in the literature on gay and lesbian couples, particularly research of the sort that he has done, which has painstakingly, and I think very usefully, shown that the dynamics of relationships in gay and lesbian couples are characterized by the same dimensions as those in heterosexual families and that clearly elaborating on that and doing more research may be helpful for those who are interested in further understanding couple dynamics. I do want to underscore that this, his research, is focused on gay and lesbian couples, mostly couples without children, and that these studies don't look at the relationship between the couple variables and the children's
June 24, 2011 Page 86
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. adjustment.
M. Lamb They are nevertheless very useful
because they do show that the research on the dynamics of those couples is subject to and has the same sorts of correlates and variables as do heterosexual couples, both those that are married as well as those who are co-habiting. Q. Is it fair to conclude that you are a
supporter of gay marriage? A. Q. Yes. If there were no studies about gay
parenting, would you still be in favor of -studies that you say demonstrate well-adjusted children, would you still support gay marriage? MR. RIEMAN: Objection to form.
Well, I think that's a hard question
to answer in that it sort of requires me to ignore the research that we do have. I mean, I
have come to support gay marriage because I have spent 35 or so years studying the factors that affect children's adjustment. And most of that
research, of course, is research that involves looking at children with opposite-sex orientation on the part of their parents. There is an increasing body of
3 Pages
EXHIBIT D
George A. Chauncey, Ph. D.
July 12, 2011 Page 1
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -------------------------------------EDITH SCHLAIN WINDSOR, in her capacity as Executor of the Estate of CLARA SPYER, Plaintiff, -againstTHE UNITED STATES OF AMERICA, Defendant. -------------------------------------(Caption continued on next page.) 10-CV-8435
DEPOSITION OF GEORGE A. CHAUNCEY, Ph.D.
Tuesday, July 12, 2011
George A. Chauncey, Ph. D.
July 12, 2011 Page 53
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G. Chauncey homosexual as an individual and to the growing visibility of those individuals, began to classify and discriminate against certain of its citizens on the basis of their status or identity as homosexuals." When you use the term or the phrase "hostility to same-sex conduct," is that the same as hostility to gays or homosexuals? MS. KAPLAN: Objection to form.
Well, as I have tried to say, the
category of homosexual or heterosexual, gay people or straight people didn't exist in the same way before, so there was certainly a long history of hostility to the behavior that would come to be identified with and seen as characteristic of the people that would come to be known as homosexuals or gay people. So, that's the longer tradition. But
as I have said here, it was in the 20th century that the government began to classify and discriminate against certain of its citizens on the basis of their status as homosexuals. Again,
that drew on a longer history of vilification but it took a distinctive form in the 20th century.
EXHIBIT E
Case 1:10-cv-08435-BSJ -JCF Document 37
Filed 06/24/11 Page 1 of 16
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK EDITH SCHLAIN WINDSOR, in her capacity as Executor of the estate of THEA CLARA SPYER, Plaintiff, v. THE UNITED STATES OF AMERICA, Defendant. Pursuant to Local Rule 56.1, Plaintiff Edith Schlain Windsor submits this statement of material facts as to which there can be no dispute: I. Facts Relevant to Plaintiffs Claim A. The Parties 1. Plaintiff, Edith Schlain Windsor (Edie), is a citizen of the United States.
10 Civ. 8435 (BSJ) (JCF) ECF Case PLANTIFFS STATEMENT PURSUANT TO LOCAL RULE 56.1
She resides in New York County, New York. 2. Plaintiff is the sole executor of the estate of her late spouse, Thea Clara
Spyer (Thea). Affidavit of Edith Schlain Windsor (Windsor Aff.) 1. 3. Defendant United States of America is a proper defendant in this action.
Order and Mem. of June 2, 2011 at 9. 4. Defendant-Intervenor Bipartisan Legal Advisory Group of the United
States House of Representatives (BLAG) has intervened in this action for the limited purpose of defending the constitutionality of the challenged legislation, Section 3 of the Defense of Marriage Act. Order and Mem. of June 2, 2011 at 10; Def.-Intervenor Mot. to Intervene at 1.
B.
Edie and Thea Were Legally Married 5. Edie met her late spouse Thea in 1963 at a restaurant in New York City,
and the two began a committed relationship that spanned five decades. Windsor Aff. 5. 6. After an engagement that lasted more than forty years, Edie and Thea
were legally married in a ceremony performed in Toronto, Canada, on May 22, 2007. Id. 26; id. Ex. A (Marriage License No. E485225 (registered June 25, 2007, Ontario, Canada)); id. Ex. B (Marriage Certificate No. 2007-05-013109 (issued March 10, 2008, Ontario, Canada)). 7. Edie and Theas marriage was valid in New York State and provided them
with the same status, responsibilities, and protections as other married people. Affidavit of Andrew J. Ehrlich 10. 8. Edie and Thea spent two years as a married couple before Thea
succumbed to complications from a heart condition on February 5, 2009, and died. Windsor Aff. 28; id. Ex. D (Death Certificate of Thea Clara Spyer). 9. After Theas passing, Edie was hospitalized with stress cardiomyopathy,
an ailment commonly known as broken heart syndrome, which required the insertion of an implantable cardioverter-defibrillator (ICD), and has resulted in serious, irreversible damage to her heart. Id. 29. 10. After Thea died, her Last Will and Testament, dated September 7, 2004,
was admitted to probate by the Surrogates Court of New York County (Index No. 2009-1162), and Edie was appointed as executor of Theas estate on April 24, 2009. Id. 30; id. Ex. E (Last Will and Testament of Thea Clara Spyer); id. Ex. F. (Letters Testamentary).
11.
In accordance with Article Third of Theas Last Will and Testament, her
executor is directed to distribute her entire estate to the TCS Revocable Trust created by Thea. Id. 31; id. Ex. G (TCS Revocable Trust). 12. In accordance with Article III of the trust agreement creating the TCS
Revocable Trust, because Edie survived Thea, the trustees were directed to distribute the remaining trust property, after the payment of taxes and administration expenses, to the trustees of the ESW Revocable Trust created by Edie. Edie is a trustee and the sole beneficiary of the ESW Revocable Trust during her life, and she has the power, exercisable by her alone, to invade the trust property and to revoke the trust agreement in its entirety at any time. Id. 32; id. Ex. H. (ESW Revocable Trust). C. Edie and Theas Marriage Was Not Recognized Under Federal Law Solely by Operation of Section 3 of the Defense of Marriage Act 13. Edie and Thea were not considered married under federal law because,
pursuant to Section 3 of the Defense of Marriage Act (DOMA), the federal government refuses to recognize valid marriages of same-sex couples. 1 U.S.C. 7 (2006). 14. Solely because of the operation of Section 3 of DOMA, the Internal
Revenue Service (IRS) determined that the estate of Thea, a decedent whose surviving spouse, Edie, is a person of the same sex as the decedent, was not entitled to the marital deduction under 26 U.S.C. 2056(a). Windsor Aff. Ex. L (Ltr. from R.A. Mitchell, Internal Revenue Service, to Edith Schlain Windsor (May 26, 2010)). 15. Consequently, because Theas taxable estate and adjusted taxable gifts
exceeded the applicable exclusion amount, a federal estate tax was imposed on Theas estate that would not otherwise have been imposed if Edie and Theas marriage were recognized under federal law. Id.
16.
As a direct result of the federal governments exclusion of same-sex
surviving spouses like Edie from the protections of the estate tax marital deduction, $363,053 (three hundred sixty-three thousand fifty-three dollars) in federal estate tax was imposed on Theas estate. Id. 17. As a direct result of Section 3 of DOMA, Edie has also been prevented
from being eligible for a Social Security lump-sum death benefit and Social Security widows insurance benefits that would otherwise be available to her as a surviving spouse. 42 U.S.C. 402 (2006). II. Constitutional Facts Supporting Heightened or Strict Scrutiny A. Gay men and lesbians have suffered a long history of purposeful discrimination 18. Gay men and lesbians have suffered a long history of discrimination at the
hands of both governmental and private actors. Expert Affidavit of George Chauncey, Ph.D., 5, 6, 1055, 6586, 90103. 19. In early colonial America, the strong influence of Puritanical clergy and
the adoption of anti-sodomy legislation verbatim from the book of Leviticus led to the execution of several men for the crime of sodomy. Id. 19. 20. In the early twentieth century, the medical community condemned
homosexuality as a mental defect or disease, with this ostensibly scientific view (now rejected) helping to legitimize much anti-gay bias. Id. 2627. 21. The early twentieth century also saw the promulgation and selective
enforcement of state and local ordinances against disorderly conduct, vagrancy, lewdness, and loitering directed at lesbians and gay men who attempted to gather together. Id. 29.
22.
In addition to subjecting lesbians and gay men to police harassment, states
and localities embarked upon widespread censorship campaigns designed to suppress gay peoples freedom of speech and ability to discuss gay issues. Id. 3134. 23. During and after World War II, the military systematically attempted to
screen out lesbians and gay men from the armed forces, and discharge and deny benefits to those that served and were discovered later. Id. 3941. 24. By the middle of the twentieth century, all federal agencies were
prohibited from hiring lesbians and gay men, and the federal government engaged in far-reaching surveillance and investigation to identify and purge supposed homosexuals from the federal civil service. Id. 4250. 25. Lesbians and gay men were also demonized by the media between the late
1930s and late 1950s. Id. 5153. 26. The modern anti-gay rights movements commenced as a response to the
slightest advancements in the direction of equality for lesbians and gay men in the 1970s. Id. 6668. 27. Campaigners against gay rights have spread false stereotypes of lesbians
and gay men as child molesters, unfit parents, and threats to heterosexualsstereotypes that linger to this day. Id. 6874. 28. The anti-gay rights movement has endeavored to repeal and block even
basic nondiscrimination protections for lesbians and gay men, and has contributed to the promulgation of overtly discriminatory legislation at the state and federal level, including restrictions on adoption by same-sex couples and marriage rights. Id. 7586.
29.
To this day, lesbians and gay men are subjected to continued public
opprobrium from leading political and religious figures and the ever-present threat of anti-gay violence. Id. 91102. 30. Despite social and legal progress in the past thirty years towards greater
acceptance of homosexuality, gay men and lesbians continue to live with the legacy of historical antigay measures and the attitudes that motivated those measures; this legacy is evident both in laws that remain on the books and in the many legal protections that have not been enacted. Id. 7, 8. 31. Today, the limited civil rights enjoyed by gay and lesbian Americans vary
substantially from region to region and are still subject to the vicissitudes of public opinion. Id. 9. 32. Like other minority groups, gay men and lesbians often must rely on
judicial decisions to secure equal rights. Id. B. Sexual orientation has no bearing on ones ability to contribute to or perform in society. 33. Sexual orientation refers to an enduring pattern of emotional, romantic, Sexual orientation is most often
and/or sexual attractions to men, women or both sexes.
discussed in terms of three categories: heterosexual (having attractions to members of the opposite sex), gay or lesbian (having attractions to members of ones own sex), and bisexual (having attractions to both men and women). Expert Affidavit of Letitia Anne Peplau, Ph.D. (Peplau Aff.), 14, 15. 34. Being gay or lesbian has no inherent association with a persons ability to
lead a happy, healthy, and productive life or to contribute to society. Id. 11, 2933.
35. 11, 29. 36. 37.
Being gay or lesbian is a normal expression of human sexuality. Id.
Being gay or lesbian is not a mental illness. Id. Empirical evidence and scientifically rigorous studies have consistently
found that gay men and lesbians are as able as heterosexuals to form loving, committed relationships. Id. 22, 31. 38. Like their heterosexual counterparts, many lesbian, gay, and bisexual
individuals form loving, long-lasting relationships, including marriage, with a partner of the same sex. Id. 12. 39. Sexual orientation is centrally linked to the most important human
relationships that adults form with other adults in order to meet their basic human needs for love, attachment and intimacy, and is an essential part of an individuals personal identity. Id. 18. 40. Numerous studies of youths raised by same-sex parents conducted over
the past 25 years by respected researchers and published in peer-reviewed academic journals demonstrate that the children raised by same-sex parents are just as well-adjusted as those of heterosexual parents, including biological parents. Expert Affidavit of Michael Lamb, Ph.D., 12, 2837. 41. Parental sexual orientation has no effect on childrens and adolescents
adjustment. Expert Affidavit of Michael Lamb, Ph.D. (Lamb Aff.), 12, 2831. 42. The factors that best account for the adjustment of children and
adolescents are the quality of the youths relationships with their parents, the quality of the relationship between the parents or significant adults in the youths lives, and the availability of economic and socio-economic resources. Id. 13, 1820.
43.
There is a scientific consensus that the same factors affect the adjustment
of children, whatever the sexual orientation of their parents. Id. 2837. 44. The parents sex or sexual orientation does not affect the capacity to be
good parents or their childrens healthy development. Id. 13, 1820. 45. There is consensus in the scientific community that parental sexual
orientation has no effect on childrens and adolescents adjustment. Id. 31. 46. Numerous organizations representing mental health and child welfare
professionals have issued statements confirming that same-sex parents are as effective as heterosexual parents in raising well-adjusted children and adolescents and should not face discrimination. Id. 47. There is no empirical support for the notion that the presence of both male
and female role models in the home promotes childrens adjustment or well being. Id. 13, 21 27. 48. The absence of a male or female parent in the home does not impair a
childs development because men and women both have the capacity to be good parents, it is not harmful to children when parents (male or female) do not assume traditional gender roles with respect to parenting styles, and society is replete with male and female role models. Id. 23 27. 49. Gay men and lesbians experience and respond to life experiences and
events as any member of society would; this is despite the pervasive social stigma and unique social stresses lesbians and gay men must endure. Peplau Aff. 2933; Lamb Aff. 12, 13, 20, 2840
C.
Sexual orientation is a defining or immutable characteristic for constitutional purposes 50. There is a scientific consensus that accepts that sexual orientation is a
characteristic that is immutable. Peplau Aff. 1928; Letter of Atty Gen. Holder to Speaker Boehner of the U.S. House of Rep., at 3 (Feb. 23, 2011) (Docket Entry No. 10-2). 51. Sexual orientation is a characteristic of an individual, like their biological
sex or race. It also is about relationships because sexual orientation is not merely about sexual behavior but also about building enduring intimate relationships. These relationships are an essential part of an individuals personal identity. Peplau Aff. 14, 18. 52. The factors that cause an individual to become heterosexual, gay or
lesbian, or bisexual are not currently well understood. Most social and behavioral scientists view sexual orientation as resulting from the interplay of biological, psychological, and social factors. Id. 19. 53. Most adults are attracted to and form relationships with members of only
one sex. Id. 10, 20. 54. orientation. Id. 23. 55. Efforts to change a persons sexual orientation through religious or The significant majority of adults exhibit a consistent and enduring sexual
psychotherapy interventions have not been shown to be effective. Id. 10, 26, 27. 56. No major mental health professional organization has approved
interventions to change sexual orientation, and virtually all of them have adopted policy statements cautioning professionals and the public about these treatments. Id. 27.
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57.
The fact that a small minority of people may experience some change in
their sexual orientation over their lifetime does not suggest that such change is within their power to effect. Id. 23. 58. It is psychologically harmful to ask lesbians and gay men to deny a core
part of their identity by ignoring their attraction to same-sex partners and instead marry a different-sex partner. Id. 24. D. Gay men and lesbians are a relatively powerless political minority 59. 60. Gay men and lesbians are a minority in the United States. Id. 40. At any level above a local precinct or neighborhood, there is no
geographic place in the United States with a gay majority. Expert Affidavit of Gary M. Segura, Ph.D., 49. 61. Gay men and lesbians do not possess a meaningful degree of political
power and are politically vulnerable. Id. 985. 62. Political power means a persons or groups demonstrated ability to
extract favorable or prevent unfavorable policy outcomes from the political system. Id. 13. 63. Traditional markers of political powerlessness include systematic
disadvantages in the political process; the existence of significant prejudice, stigmatization, or de facto or de jure second-class status; or an inability, alone or in concert with reliable coalition partners, to secure basic rights or equal treatment from and within the political process. Id. 27. 64. Gay men and lesbians frequently lack the political power to secure basic
rights within the normal political processes or to defend themselves and their civil rights against a hostile majority. Id. 9, 26.
10
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65.
Gay men and lesbians are the subject of political exclusion and suffer
political disabilities greater than other groups that have received suspect class protection from the courts. Id. 9, 8185. 66. In the political arena, gay men and lesbians must rely almost exclusively
on allies who are regularly shown to be insufficiently strong or reliable to achieve their goals or protect their interests. Id. 9, 7577. 67. Positive policy outcomes that remediate or repeal express, de jure
discrimination and bias against the group do not demonstrate a groups affirmative political power but should rather be viewed as a sign of political powerlessness. Id. 25. 68. The political powerlessness of gay men and lesbians is evidenced by their
inability to bring an end to pervasive prejudice and discrimination, and to secure desired policy outcomes and prevent undesirable outcomes on fundamental matters that closely and directly impact their lives. Id. 28. 69. The demonstrated vulnerability of occasional and geographically confined
policy gains to reversal or repeal is indicative of a role played by affinity or sympathy, rather than the exercise of meaningful political power by gay men and lesbians. Id. 28. 70. Even when gay men and lesbians have successfully secured minimal
protections in state courts and legislatures, opponents have aggressively used state ballot initiatives and referenda to repeal favorable laws and even amend state constitutions to preclude favorable court decisions. Id. 2223, 3444. 71. These direct democracy processes have been used against gay men and
lesbians more than any other social group. Id. 43.
11
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72.
At the time the Supreme Court first began articulating the factors that call
for heightened judicial scrutiny, women and racial minorities already had far more protection from discrimination than gay men and lesbians have today. Id. 8185. 73. There is no federal legislation prohibiting discrimination on the basis of
sexual orientation in employment, education, access to public accommodations, or housing. Id. 29. 74. Until sexual orientation was added to the federal hate crimes laws in
2009 (over significant opposition), no federal legislation had ever been passed to protect people on the basis of the sexual orientation. Id. 31. 75. Congress only recently authorized the repeal of the militarys ban on gay
and lesbian service members, and it did so only in a lame-duck session and after two courts had declared the policy unconstitutional. Id. 32. 76. On the state level, there is no statutory protection against discrimination in
employment or public accommodations for gay men and lesbians in twenty-nine states. Id. 33. 77. FBI statistics demonstrate that in 2009, almost one-fifth of all hate crime
incidents for the previous year were committed because of sexual orientation, and that gay men, along with Jewish Americans, are most likely to be victimized by a bias crime. Id. 52, 54. 78. In 2008, seventy-three percent of all hate crimes committed against gay
men and lesbians included an act of violence; seventy-one percent of all hate motivated murders in the United States were of gay men and lesbians; and fifty-five percent of all hate-motivated rapes were against gay men and lesbians. Id. 53. 79. The fact that sexual orientation is not a visible trait has undermined gay
men and lesbians ability to mobilize and exercise meaningful political power. Id. 5664.
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80.
Gay men and lesbians face severe hostility from non-gay citizens in many
parts of the country and opinion data shows that they are held in considerably lower regard than many groups currently receiving the protection of heightened scrutiny from the courts. Id. 6671, 78. 81. Gay men and lesbians face outspoken denunciation by elected officials in
a manner that would be unthinkable if directed toward almost any other social group. Id. 72 74. V. History of Marriage and the Defense of Marriage Act 82. The institution of marriage in the United States is a particular, not a
universal, form of the institution. Expert Affidavit of Nancy F. Cott, Ph.D., 8. 83. Marriage in the United States has been defined and controlled historically
at the state level. Id. 2428. 84. Since the founding of the United States, there has been a patchwork quilt
of marriage rules across the country. Id. 2428. 85. Marriage has been shaped by legislators and judges in the various states to
adjust to changing needs from the founding of the nation until today. Id. 1323. 86. State marriage laws have varied in accordance with political and economic
environments, religious forces, changes in the ethnic composition of a states residents, and many other local conditions. Id. 2528. 87. The ability to procreate has never been an eligibility criterion to enter into
marriage. Id. 1923.
13
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88.
States variances regarding the validity of marriages of same-sex couples
resembles and is parallel to the history of states divergences with respect to many other dimensions of marriage validity. Id. 3264. 89. States have varied from one another in defining the basic elements of
marriage, including whether or not ceremonies are required for validation, age at marriage, what other race may marry a white person, how marriage may be dissolved, and other issues, and how spousal roles shall be defined and enforced. Id. 3273. 90. There remains substantial variation in state rules on marriage to this day
including whether common law marriages will be recognized, minimum age required for marriage, hygienic requirements (such as degree of relatedness that will be permitted between spouses), and marriage dissolution rulesyet the federal government has never stepped in to create uniform requirements for purposes of federal law. Id. 3244, 5864. 91. Heated controversy often surrounded changes to the features of marriage
on which state laws diverged in the past; the controversies today focusing on marriage between couples of the same sex, and state variance on the matter, resemble these past disagreements. Id. 36, 5057, 6061. 92. Since the Revolutionary War era, the federal government has used
marriage as a vehicle to convey benefits to adult citizens and their dependents. Id. 81. 93. The extent of federal laws and policies using marriage in this way has
grown to cover vast and important areas, including income tax, Social Security, and citizenship and naturalization privileges and limits. Id. 82. 94. DOMA represents a dramatic departure from the federal governments
longstanding tradition of deferring to states determinations of marital status, as prior to 1996 the
14
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federal government never stipulated a uniform definition of marriage for purposes of federal law, and instead relied upon states determinations. Id. 38, 44, 57, 64, 83, 88. 95. By denying federal recognition to legally married same-sex couples,
DOMA both reflects and perpetuates stigma against lesbians, gay men, and same-sex couples. Peplau Aff. 3941. 96. The stigma and discrimination perpetuated by DOMA harm not only
individuals in legal same-sex marriages, but gay men, lesbians, and bisexuals as a group. Id. 13. 97. According to the legislative history, DOMAs exclusion in 1996 of all
same-sex couples who might one day get married from all federal marital protections and obligations was intended to: (a) defend[] and nurtur[e] the institution of traditional,
heterosexual marriage, (b) promot[e] heterosexuality, (c) encourag[e] responsible procreation and child-rearing, (d) protect[] . . . democratic self-governance, (e) preserve scarce government resources by preventing marital benefits from hav[ing] to be made available to homosexual couples and surviving spouses of homosexual marriages, and (f) promote a moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality. H.R. Rep. No. 104-664, at 12, 13, 15, 17, 18 (1996). 98. The recognition of the marriages of same-sex couples would actually
increase annual net federal revenue. Cong. Budget Office, U.S. Cong., The Potential Budgetary Impact of Recognizing Same-Sex Marriages, at 1 (June 21, 2004), http://www.cbo.gov/ftpdocs/ 55xx/doc5559/06-21-SameSexMarriage.pdf.
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Dated: New York, New York June 24, 2011 PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP /s/ Andrew J. Ehrlich /s/ ____________________________________ Roberta A. Kaplan, Esq. Andrew J. Ehrlich, Esq. 1285 Avenue of the Americas New York, New York 10019-6064 (212) 373-3000 rkaplan@paulweiss.com aehrlich@paulweiss.com and James D. Esseks, Esq. Rose A. Saxe, Esq. AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street New York, New York 10004-2400 (212) 549-2500 jesseks@aclu.org rsaxe@aclu.org and Alexis Karteron, Esq. Melissa Goodman, Esq. Arthur Eisenberg, Esq. NEW YORK CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 19th Floor New York, New York 10004 (212) 607-3300 akarteron@nyclu.org mgoodman@nyclu.org aeisenberg@nyclu.org Attorneys for Plaintiff Edith Schlain Windsor
16
EXHIBIT F
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK ____________________________________ ) EDITH SCHLAIN WINDSOR, in her ) capacity as executor of the estate of ) THEA CLARA SPYER, ) ) Plaintiff, ) ) v. ) ) THE UNITED STATES OF AMERICA, ) ) ) Defendant. ) ____________________________________)
Civil Action No. 10-CV-8435 (BSJ)(JCF)
INTERVENOR-DEFENDANTS LOCAL RULE 56.1 RESPONSE TO PLAINTIFFS STATEMENT OF MATERIAL FACTS Pursuant to Local Rule 56.1, Intervenor-Defendant the Bipartisan Legal Advisory Group of the United States House of Representatives (the House) submits this Response to Plaintiffs Statement Pursuant To Local Rule 56.1: 1. 2. 3. Undisputed. Undisputed. Whether the United States of America is a proper defendant in this action is not a
question of fact, but is for the Court to determine as a matter of law. This is illustrated by the fact that Plaintiff cites no admissible evidence in support of this proposition. 4. 5. Undisputed. The House does not dispute that Plaintiff had a long-standing relationship with
Thea Spyer. Aff. of Edith Schlain Windsor (June 24, 2011) (ECF No. 31) (Windsor Aff.) 5, 7-9. 1
6.
The House does not dispute the length of Plaintiffs and Spyers engagement or
that Plaintiff and Spyer participated in a ceremony in Toronto, Canada on May 22, 2007. Windsor Aff. 26-27 & Exs. A & B. The legal validity of that ceremony is not a question of fact, but is for the Court to determine as a matter of law. 7. Disputed. The legal validity of Plaintiffs marriage, and the status,
responsibilities, and protections it entailed, are not questions of fact, but are for the Court to decide as a matter of law. This is illustrated by the fact that the only evidence cited by Plaintiff in support of her assertions in this regard is the affidavit of her attorney. 8. The House does not dispute that Plaintiff and Spyer continued their relationship
until Spyers death, or that her death occurred two years after their Canadian ceremony. Windsor Aff. 28 & Ex. D. Whether they were legally a married couple during that period is not a question of fact, but is for the Court to determine as a matter of law. 9. Any health problems suffered by Plaintiff are not relevant to the issues presented
in this case, and thus would not be admissible in evidence. The House disputes Plaintiffs apparent implication that her health problems somehow resulted from Spyers death. Plaintiff offers no support for this proposition whatsoever. See Windsor Aff. 29. 10. 11. Undisputed. The House does not dispute that Plaintiffs Exhibit G is a copy of a genuine trust
document. See Windsor Aff. 31. The legal significance of that document is not a question of fact, but is for the Court to determine as a matter of law. 12. The House does not dispute that Plaintiffs Exhibit H is a copy of a genuine trust
document. See Windsor Aff. 32. The legal significance of that document is not a question of fact, but is for the Court to determine as a matter of law.
13.
While the House agrees that, for federal purposes, DOMA states that marriage
includes only opposite-sex relationships, the meaning of DOMA and whether it or any other statute precludes recognition of same-sex relationships as marriages for purposes of federal law is not a question of fact, but is for the Court to decide as a matter of law. This is illustrated by the fact that Plaintiff cites no admissible evidence in support of this proposition. 14. The House does not dispute that the IRS determined that Spyers estate was not
entitled to the marital deduction. See Windsor Aff., Ex. L. The House disputes that this determination was [s]olely due to DOMA. Plaintiffs evidence supports only that the IRS regarded DOMA as a sufficient reason for denying the deduction, not the only reason, and Plaintiff cites no additional evidence that would support a finding that there was no other reason for the IRSs action. See id. Whether any other federal statute actually would bar the deduction is not a question of fact, but is for the Court to decide as a matter of law. 15. Undisputed, except to the extent that the word [c]onsequently implies that the
tax levied on Spyers estate was [s]olely due to DOMA. In that respect the House incorporates by reference Paragraph 14, supra. 16. 17. Undisputed. The House does not dispute that Plaintiff is not eligible for a Social Security
lump-sum death benefit or widows insurance benefits, although it notes that she has cited no admissible evidence in support of this proposition. Whether this is a direct result of Section 3 of DOMA, or whether the same result would have occurred under federal law prior to DOMA, is not a question of fact but for the Court to decide as a matter of law. This is illustrated by the fact that Plaintiff also cites no admissible evidence in support of this proposition.
18.
Disputed. In equal protection jurisprudence the question of whether a class of
persons has suffered a history of discrimination is not a question of fact but is for the Court to decide as a matter of law. As a factual matter the House does not dispute that at various times some homosexual persons have been treated differently because of their sexual orientation, but Plaintiffs evidence is not sufficient to establish a history of discrimination for purposes of equal protection. See generally Aff. of George Chauncey (June 24, 2011) (ECF No. 35) (Chauncey Aff.). 19. Undisputed. However, colonial sodomy prosecutions were aimed not at
homosexual persons or conduct per se but rather at non-procreative sexual conduct in general, including such conduct between persons of opposite sexes. Dep. of George Chauncey, Ph.D. (July 12, 2011) (Chauncey Dep.) at 34:9-34:24, attached as Ex. A to Dugan Decl. 20. Undisputed. However, Plaintiff submits no evidence that medical views of
homosexuality have themselves been based on bias, as opposed to past understandings of scientific knowledge. See Chauncey Aff. 26-27. 21. 22. Undisputed. Undisputed, on the understanding that the assertion refers to occurrences in the
early 20th Century. 23. 24. 25. 26. 27. Undisputed. Undisputed. Undisputed. Undisputed. Undisputed.
28.
Disputed. Whether federal legislation is overtly discriminatory is a question of
law for the Court to decide not a question of fact. 29. Undisputed, on the understanding that the phrase ever-present threat of anti-gay
violence does not mean that all or most homosexual persons fear violence every minute of every day. 30. The House does not dispute that many persons still oppose homosexual conduct
and the homosexual lifestyle, and that gay and lesbian interest groups continue to regard some laws as against their interests. However, Plaintiff substantially understates the social and legal progress that gay men and lesbians have experienced. See, e.g., evidence cited in 61, infra. 31. The mere facts that homosexual persons rights are not unlimited, vary from place
to place, and are subject to changing public opinion, are not relevant to any issue in this case and thus not admissible in evidence. Few if any classes of persons enjoy civil rights that are not limited in some way, or that are absolutely identical in every place in the county. And, all political gains, no matter the class at issue, are subject to the vicissitudes of public opinion. As a result, these characteristics cannot be relevant to whether a given class of people is a suspect class for equal protection purposes. 32. Undisputed. However, gay-rights groups have made great advances through the
political process. See evidence cited in 61, infra. 33. Disputed. Enduring is not an accurate description of everyones experience of
sexual orientation. As evidence shows, a not insignificant number of people who described themselves at one time as homosexual, later describe themselves as heterosexual. See, e.g., Lisa M. Diamond, New Paradigms for Research on Heterosexual and Sexual Minority Development, 32 J. of Clinical Child and Adolescent Psychol. 492 (2003); Lisa M. Diamond & Ritch C. Savin-
Williams, Explaining Diversity in the Development of Same-Sex Sexuality Among Young Women, 56 J. of Soc. Issues 297, 301 (2000) (50% [of studys] respondents had changed their identity label more than once since first relinquishing their heterosexual identity.); Nigel Dickson, et al., Same Sex Attracting in a Birth Cohort: Prevalence and Persistence in Early Adulthood, 56 Soc. Sci. & Med. 1607, 1612-13 (2003) (at age 21 [t]en percent of men and nearly a quarter of the women [in the study group] reported same-sex attraction at any time, but this nearly halved for current attraction at age 26). 34. Disputed. In the equal protection context, the ability of a class of persons to
contribute to society is not a question of fact, but is for the Court to decide as a matter of law. 35. The House does not dispute that many thousands of persons in modern society
identify themselves as gay and lesbian, and that many people regard this as normal. What is a normal expression of human sexuality, however, is not a question of fact but a matter of unreviewable opinion. 36. 37. 38. Undisputed. Undisputed. Undisputed, except that whether any given relationship or type of relationship is
or can be a marriage is a question of law rather than fact. 39. Undisputed. However, many persons experience fluidity or change in their sexual
orientation in a manner that suggests that maintaining any particular sexual orientation may not be essential to their identities. See evidence cited in 33, supra. 40. Disputed. Numerous studies, including those relied upon by Plaintiffs expert,
show that homosexual parenting studies are flawed because of sampling errors, a major focus on lesbian mothers rather than homosexual fathers, and other design flaws. Dep. of Michael Lamb,
Ph.D. (June 24, 2011) (Lamb Dep.), Ex. 6 at 327, attached as Ex. E to Dugan Decl. (Studies of children raised by same-sex parents have almost exclusively focused on families headed by lesbian mothers rather than gay fathers.) (emphasis added); Id., Ex. 8 at 526 (We still have relatively few studies of adolescent offspring of lesbian or gay parents, however, and some have advised caution when generalizing the results of research conducted with young children to adolescents) (emphasis added); Id., Ex. 9 at 254 (Future research on gay and lesbian couples needs to address several key issues. One is sampling: Because most studies have used convenience samples of mostly white and well-educated partners, the extent to which findings generalized to the larger population of gay and lesbian couples is unknown. . . . Most studies on gay and lesbian couples have used self-report surveys. Future work could address some of the biases associated with self-report data.) (emphasis added); see also studies cited in Lofton v. Sec. of Dept. of Children & Fam. Servs., 358 F.3d 804, 825 nn.24-25 (11th Cir. 2004) (demonstrating serious methodological problems in gay parenting studies); Ann Hulbert, The Gay Science: What Do We Know About the Effects of Same-Sex Parenting?, Slate, March 12, 2004, http://www.slate.com/id/2097048/ (stating that both camps in the gay marriage debate have converged lately on a very basic point: The existing science is methodologically flawed and ideologically skewed). 41. Disputed, as one would expect with regard to such a contentious issue. See
evidence cited in 40, supra. Furthermore, Plaintiff does not define the term adjustment. 42. The House does not dispute that these factors affect the adjustment of children
and adolescents. The House disputes the assertion to the extent it is rooted in the assertions of the prior paragraphs. See evidence cited in 40, supra. 43. Disputed. See evidence cited in 40, supra.
44.
Disputed. Homosexuals of course can be good parents, but the House disputes
whether parents sexual orientation has no effect on children. See evidence cited in 40, supra. 45. 46. Disputed. See evidence cited in 40, supra. The House does not dispute that certain organizations have stated that the
evidence suggests that same-sex parents are as effective as heterosexual parents in raising welladjusted children and adolescents. See also evidence cited in 40, supra. 47. Disputed. See, e.g., sources cited in Irizarry v. Bd. of Educ. of Chi., 251 F.3d 604,
607 (7th Cir. 2001) ([S]o far as heterosexuals are concerned, the evidence that marriage provides a stable and nourishing framework for child-rearing . . . refutes any claim that policies designed to promote marriage are irrational.) (namely, Linda J. Waite & Maggie Gallagher, The Case for Marriage: Why Married People Are Happier, Healthier, and Better Off Financially (2000); David Popenoe, Life without Father: Compelling New Evidence That Fatherhood and Marriage Are Indispensable for the Good of Children and Society (1996); George W. Dent, Jr., The Defense of Traditional Marriage, 15 J.L. & Pol. 581 (1999)); see also source cited in Bowen v. Gilliard, 483 U.S. 587, 614 (1987) (Brennan, J., dissenting) (noting that considerable scholarly research . . . indicates that [t]he optimal situation for the child is to have both an involved mother and an involved father) (quoting H. Biller, Paternal Deprivation 10 (1974)); Lofton, 358 F.3d at 820 (Although social theorists from Plato to Simone de Beauvoir have proposed alternative child-rearing arrangements, none has proven as enduring as the marital family structure, nor has the accumulated wisdom of several millennia of human experience discovered a superior model.). 48. Disputed. See evidence cited in 40 & 47, supra.
49.
Disputed. The classes of gay men and lesbians are defined by a different
experience of sexuality. Aff. of Letitia Anne Peplau, Ph.D. (June 24, 2011) (ECF No. 32) (Peplau Aff.) 14, 15, 18. The issue of how any member of society would experience and respond to life experiences is not a question of fact but of unreviewable opinion. 50. In the equal protection context, whether a characteristic is immutable is not a
question of fact but is for the Court to decide as a matter of law. In a non-legal sense, while the House does not dispute that sexual orientation is stable in many people, it disputes that immutable is an accurate descriptor for sexual orientation as a whole. Dep. of Letitia Anne Peplau, Ph.D. (June 17, 2011) (Peplau Dep.) at 25:20-25:23, attached as Ex. B to Dugan Decl. ([L]ooking at a newborn, I would not be able to tell you what that childs sexual orientation is going to be.); id. at 36:24-37:24; id., Ex. 4 at 186 (over 12% of self-identified gay men and nearly one out of three lesbians reported that they experienced some or much choice about their sexual orientation); Lisa Diamond, New Paradigms for Research on Heterosexual and Sexual Minority Development, 32 J. of Clinical Child and Adolescent Psychol. 492 (2003); Lisa M. Diamond & Ritch C. Savin-Williams, Explaining Diversity in the Development of Same-Sex Sexuality Among Young Women, 56 J. of Soc. Issues 301 (2000) (50% [of studys] respondents had changed their identity label more than once since first relinquishing their heterosexual identity.); Nigel Dickson, et al., Same Sex Attracting in a Birth Cohort: Prevalence and Persistence in Early Adulthood, 56 Soc. Sci. & Med. 1607, 1612-13 (2003) (at age 21 [t]en percent of men and nearly a quarter of the women [in the study group] reported same-sex attraction at any time, but this nearly halved for current attraction at age 26).
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51.
The House does not dispute that sexual orientation is an individual characteristic.
The House disputes whether it is as immutable or essential as sex or race. See evidence cited in 33 & 50, supra. 52. 53. 54. Undisputed. Undisputed. Undisputed. However, evidence indicates that a great many people who
experience homosexual attraction at one period in their adult lives do not in another. See evidence cited in 33, supra. 55. The House does not dispute the absence of evidence for the effectiveness of such
interventions. However, evidence does indicate that, even absent such interventions, changes in sexual orientation occur with some frequency. See evidence cited in 33 & 54, supra. 56. Undisputed, with the understanding that Plaintiff is not here asserting that the
policies referenced in the Peplau Affidavit are correct on the current evidence or that future evidence might not emerge that would cause these policies to be changed. 57. Disputed. The fact that some people experience change in their sexual orientation
is not fully understood. See, e.g., Peplau Dep., Ex. 3 at 2, attached as Ex. B to Dugan Decl. (There is no consensus amongst scientists about the exact reasons that an individual develops a heterosexual, bisexual, gay, or lesbian orientation. . . . [N]o findings have emerged that permit scientists to conclude that sexual orientation is determined by any particular factor or factors.); Diamond & Savin-Williams, supra 50, at 301. 58. The House does not dispute that it likely would be psychologically harmful to
force lesbians or gay men to take these steps or attempt to persuade them to do so against their will. The House disputes that every noncoercive, non-aggressive request will inherently be
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psychologically harmful to its recipient. To the extent Plaintiffs evidence suggests otherwise, it is wholly implausible and not entitled to be credited by the finder of fact. See, e.g., Peplau Aff. 24. 59. 60. 61. Undisputed. Undisputed. Disputed. In the context of equal protection jurisprudence, whether a given class
of persons has political power or is politically vulnerable is not a question of fact, but is for the Court to decide as a matter of law. Moreover, in this very case Plaintiff has demonstrated the significant political power that gays and lesbians hold. See, e.g., Letter of Atty Gen. Holder to Speaker Boehner of the U.S. House of Rep. (Feb. 23, 2011); see also Susan Page, Gay Candidates Gain Acceptance, USA Today, July 19, 2011, http://www.usatoday.com/news/politics/2011-07-19-gay-candidates-politics_n.htm; MJ Lee; Obama Backs Bill To End DOMA, Politico, July 19, 2011, http://www.politico.com/politico44/perm/0711/all_due_respect_52655160-80d9-4749-a26a3525888f615a.html; Michael Barbaro, Behind N.Y. Gay Marriage, an Unlikely Mix of Forces, N.Y. Times, June 25, 2011, http://www.nytimes.com/2011/06/26/nyregion/the-road-to-gaymarriage-in-new-york.html?pagewanted=all; Wyatt Buchanan, New State Law Requires LGBT History in Textbooks, S.F. Chron., July 15, 2011, http://www.sfgate.com/cgibin/article.cgi?f=/c/a/2011/07/14/BAL61KAHVQ.DTL; Abby Goodnough, Rhode Island Lawmakers Approve Civil Unions, N.Y. Times, June 29, 2011, http://www.nytimes.com/2011/ 06/30/us/30unions.html; Elisabeth Bumiller, Obama Ends Dont Ask, Dont Tell Policy, N.Y. Times, July 22, 2011, http://www.nytimes.com/2011/07/23/us/23military.html.
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62.
In the equal protection context, the definition of political power is not a
question of fact, but is to be decided by the Court as a matter of law. See, e.g., Lyng v. Castillo, 477 U.S. 635, 638 (1986) (deciding question of political powerlessness without reference to formally adduced evidence). 63. In the equal protection context, the definition of political power and the factors
that evidence it are not questions of fact, but are to be decided by the Court as a matter of law. 64. Disputed. In the equal protection context, the quantum of political power
possessed by a given class of people is not a question of fact, but is to be decided by the Court as a matter of law. Moreover, gay and lesbian persons wield a very significant degree of political power. See evidence cited in 61, supra. 65. Disputed. In the equal protection context, the quantum of political powerlessness
suffered by a given class of people is not a question of fact, but is to be decided by the Court as a matter of law. See Lyng, 477 U.S. at 638. Additionally, the Court may take judicial notice of the fact that gay and lesbian persons form a vastly smaller portion of the population than other groups that have received suspect class protection. Nevertheless, they have come to wield a degree of political power that is proportionately greater than those groups. See evidence cited in 61, supra. 66. Disputed. Gay men and lesbians are very frequently able to achieve their political
goals. See evidence cited in 61, supra. 67. Disputed. In the equal protection context, the definitions of political
powerlessness and political power are not questions of fact, but are to be decided by the Court as a matter of law.
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68.
Disputed. In the equal protection context, the definition of political
powerlessness is not a question of fact, but is to be decided by the Court as a matter of law. Moreover, gay men and lesbians are very frequently able to achieve their political goals. See evidence cited in 61, supra. 69. Disputed. In the equal protection context, the definition and indicators of
political power are not questions of fact, but are to be decided by the Court as a matter of law. 70. Undisputed, on the understanding that Plaintiff is not here asserting that gay men
or lesbians have never secured more than minimal protections, or that every minimal protection they have won has been aggressively repealed or even opposed. Moreover, the indicia of the political power of gays and lesbians are numerous and very strong. See evidence cited in 61, supra. 71. Disputed. Plaintiff has no reliable metric for determining how frequently direct
democracy processes have been used against any social group. See Aff. of Gary Segura (June 24, 2011) (ECF No. 36) 43. 72. 73. Disputed. This is a question of law, not a question of fact. The import of federal law is not a question of fact but is to be answered by the
Court as a matter of law. However, the House does not dispute that there is no federal legislation prohibiting discrimination on the basis of sexual orientation. 74. The import of federal law is not a question of fact but is to be answered by the
Court as a matter of law. However, the House does not dispute that no federal legislation had been passed prior to 2009 to protect people on the basis of sexual orientation. 75. Undisputed.
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76.
The import of state law is not a question of fact but is to be answered by the Court
as a matter of law. 77. 78. 79. Undisputed. Undisputed. Undisputed. However, gay men and lesbians wield great political power,
especially considering the relatively small share of the population they make up. See evidence cited in 61, supra. 80. Disputed, to the extent that whether a given set of conditions amounts to severe
hostility is not a question of fact but of unreviewable opinion. It is also a vague and opaque assertion. 81. Disputed. The House does not dispute that many elected officials do not support
expanded benefits for homosexual persons, but whether denunciation is unthinkable is not a question of fact but of unreviewable opinion. In any event, politicians not infrequently make offensive remarks about various social groups. See, e.g., Tim Reid, Barack Obamas Guns and Religion Blunder Gives Hillary Clinton a Chance, The Times of London, April 14, 2008, http://www.timesonline.co.uk/tol/news/world/us_and_americas/us_elections/article3740080.ece (describing then-Senator Obamas comments concerning blue-collar voters in Pennsylvania and the Midwest); Xuan Thai & Ted Barrett, Bidens Description of Obama Draws Scrutiny, CNN, July 31, 2007, http://articles.cnn.com/2007-01-31/politics/biden.obama_1_braun-and-alsharpton-african-american-presidential-candidates-delaware-democrat?_s=PM:POLITICS (describing then-Senator Bidens comment concerning then-Senator Obama and how he differed from former black presidential candidates).
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82.
The meaning of this assertion is so vague that is does not qualify as a proper
assertion of fact. 83. Disputed. The meaning of federal and state law governing marriage through the
years is not a question of fact, but is a matter of law for the Court to decide. In any event, marriage has largely been a creature of state law, but the federal government has been involved with and injected itself into marriage law when states have deviated from the traditional definition. See, e.g., Morrill Anti-Bigamy Act, ch. 126, 1, 12 Stat. 501, 501 (1862) (codified as amended at U.S. Rev. Stat. 5352) (repealed prior to codification in the U.S.C.) (punishing and preventing the practice of polygamy in the territories of the United States)1; see also Reynolds v. United States, 98 U.S. 145, 165-67 (1878) (holding that law banning polygamy did not violate the Constitutions guarantee of free exercise of religion); Aff. of Nancy F. Cott (June 24, 2011) (ECF No. 33) (Cott Aff.) 77 (discussing the Freedmens Bureaus work in supporting marriage); Dep. of Nancy F. Cott (July 6, 2011) (Cott Dep.) at 17:20-18:1, attached as Ex. D to Dugan Decl. (stating that in dealing with Indians . . . in federal territories and in certain states where the federal government was dealing . . . with native Americans through the Bureau of Indian Affairs, the form of marriage observed by these populations was of concern to that federal agency). 84. The House does not dispute that there have always been some variations in State
marriage rules. Whether these variations are great enough to be described as a patchwork quilt is not a question of fact. Additionally, the Court may take judicial notice that for 228 years after the founding, no state law permitted same-sex marriage. 85.
1
Undisputed.
The House cited statutes and caselaw as evidence of the historical fact of the enactment of provisions of federal law. 15
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86. 87.
Undisputed. The House does not dispute that no state has ever placed upon an individual
would-be spouse the burden of affirmatively proving that he or she individually is able to procreate. The Court, however, may take judicial notice of the fact that human procreation normally involves one man and one woman only, and that for more than two centuries after the Founding these parties and only these were permitted to enter marriage in every State. In addition, impotence has often been regarded as a ground for the dissolution of marriages. Cott Dep. at 20:13-21:18. 88. Whether one variance between the legal rules adopted by different States
resembles or is parallel to another variance is not a question of fact but a matter of unreviewable legal opinion. In any event, the Court may take judicial notice of the fact that while other divergences noted in the Cott Affidavit have been repeated throughout history in numerous other places in the world, same-sex marriage is virtually unprecedented in all of human history. See generally Cott Aff. 89. 90. Undisputed. Undisputed. However, the federal government has certainly concerned itself with
the definition of marriage in other contexts. See evidence cited in 83, supra. 91. Undisputed, so long as it is recognized that the Plaintiffs assertion does not
answer the specific legal question in this case. 92. 93. 94. Undisputed. Undisputed. The House does not dispute that despite other federal efforts to ensure that the
traditional definition of marriage would govern, see supra 83, prior to 1996 the federal
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government had never created a uniform definition of marriage for purposes of federal law. Whether DOMA amounted to a dramatic departure from this history is not a question of fact but of unreviewable opinion. 95. The House does not deny that DOMA prevents same-sex couples from being
recognized as married for purposes of federal law. Whether this reflects and perpetuates stigma is not a question of fact. Instead, it is either a question of law in the equal-protection context for decision by the Court, or else is a matter of unreviewable opinion. 96. Whether a given statute causes a stigma, let alone whether any such stigma
causes harm to anyone, is not a question of fact but of unreviewable opinion, or else of law for the Court to decide. 97. 98. Undisputed. Disputed. The Congressional Budget Office Report is an estimate as stated in the
report itself and this estimate assumes that same-sex marriages are legalized in all 50 states and recognized by the federal government. Cong. Budget Office, The Potential Budgetary Impact of Recognizing Same-Sex Marriages, at 1 (June 21, 2004), http://cbo.gov/ftpdocs/55xx/doc5559/06-21-SameSexMarriage.pdf.
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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, Northwest, Suite 470 Washington, District of Columbia 20036 Telephone: (202) 234-0090 Facsimile: (202) 234-2806 Counsel for the Bipartisan Legal Advisory Group of the U.S. House of Representatives OF COUNSEL: Kerry W. Kircher, General Counsel Christine Davenport, Senior Assistant Counsel Katherine E. McCarron, Assistant Counsel William Pittard, Assistant Counsel Kirsten W. Konar, Assistant Counsel OFFICE OF GENERAL COUNSEL U.S. House of Representatives 219 Cannon House Office Building Washington, District of Columbia 20515 Telephone: (202) 225-9700 Facsimile: (202) 226-1360 August 1, 2011
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CERTIFICATE OF SERVICE I certify that on August 1, 2011, I served one copy of Intervenor-Defendants Local Rule 56.1 Response to Plaintiffs Statement of Material Facts by CM/ECF and by electronic mail (.pdf format) on the following: Roberta A. Kaplan, Esquire, & Andrew J. Ehrlich, Esquire PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP 1285 Avenue of the Americas New York City, New York 10019-6064 rkaplan@paulweiss.com aehrlich@paulweiss.com Alexis Karteron, Esquire, & Arthur Eisenberg, Esquire NEW YORK CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 19th Floor New York City, New York 10004 akarteron@nyclu.org arteisenberg@nyclu.org James D. Esseks, Esquire, Melissa Goodman, Esquire, & Rose A. Saxe, Esquire AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street New York City, New York 10004 jesseks@aclu.org mgoodman@nyclu.org rsaxe@aclu.org Jean Lin, Esquire UNITED STATES DEPARTMENT OF JUSTICE, CIVIL DIVISION 20 Massachusetts Avenue, Northwest, Seventh Floor Washington, District of Columbia 20530 jean.lin@usdoj.gov Simon Heller, Esquire STATE OF NEW YORK OFFICE OF THE ATTORNEY GENERAL 120 Broadway New York, NY 10271 simon.heller@ag.ny.gov
/s/ Kerry W. Kircher Kerry W. Kircher
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EXHIBIT G
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT ____________________________________ ) JOANNE PEDERSEN, et al., ) ) Plaintiffs, ) ) v. ) No. 3:10-cv-1750 (VLB) ) OFFICE OF PERSONNEL ) MANAGEMENT, et al., ) ) Defendants. ) ____________________________________) THE BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES OBJECTIONS AND RESPONSES TO PLAINTIFFS FIRST SET OF REQUESTS FOR ADMISSIONS Pursuant to Rules 26 and 36 of the Federal Rules of Civil Procedure and Rule 26 of the Local Civil Rules of the U.S. District Court for the District of Connecticut, and pursuant to agreement of the parties, Intervenor-Defendant the Bipartisan Legal Advisory Group of the U.S. House of Representatives (Defendant) makes the following amended objections and resposes to Plaintiffs First Set of Requests for Admissions (Requests). GENERAL OBJECTIONS AND RESPONSES 1. Defendant objects to the Requests to the extent that they purport to impose any
requirement or discovery obligation on Defendant beyond those set forth in the Federal Rules of Civil Procedure. 2. Defendant objects to the Requests to the extent they seek information or
documents protected by the attorney-client privilege, the attorney work-product doctrine, the Speech or Debate Clause of the United States Constitution, Art. I, 6, cl. 1, or any other applicable protection or claim of privilege. The responses that follow encompass responsive,
non-privileged, non-exempt information and documents.
Any disclosure of privileged or
confidential information or documents is not intended to waive any applicable privileges or protections. 3. Defendant objects to the Requests to the extent that they seek information or
documents not relevant to the claims or defenses in this litigation and/or not reasonably calculated to lead to the discovery of admissible evidence. 4. Defendant objects to the Requests to the extent they seek information or
documents already known to Plaintiffs, in the possession, custody or control of Plaintiffs, previously filed with the Court in this litigation, or otherwise available through or from a more convenient, less burdensome, or less expensive source. 5. Defendant objects to the Requests to the extent they are unreasonably cumulative
or duplicative; cause annoyance, embarrassment, oppression, undue burden or expense; or are onerous, uncertain, or vague. Defendant further objects to these interrogatories to the extent they use terms that are not defined or understood, or are vaguely or ambiguously defined, and therefore fail to identify with reasonable particularity the information sought. Defendant will not speculate as to the meaning to ascribe to such terms. 6. Defendant has conducted a reasonable investigation concerning the information
sought by the Requests and objects to the extent they seek to require Defendant to maintain or obtain information beyond that available through reasonable investigation and/or in the time permitted for these responses. In addition, Defendant continues to search for additional
information. Defendant reserves the right to amend, supplement, or modify these responses, if necessary, to reflect additional responsive information or documents as they become known or available.
7.
Each of Defendants responses to the Requests is subject to the General
Objections set forth herein. The assertion of the same, similar, or additional objections in the specific responses set forth below, or the failure to assert any additional objections, does not waive any of Defendants General Objections. 8. Defendant objects to Instruction No. 5, which purports to require a detailed
explanation and the identification of factual bases and documents for each denial or qualification. Instruction No. 5 purports to impose requirements beyond those set forth in Rule 36 of the Federal Rules of Civil Procedure. SPECIFIC OBJECTIONS AND RESPONSES 1. Please admit that the plaintiffs are or were lawfully married under state law in their state of residence. Response: Subject to and without waiving the General Objections, Defendant admits that plaintiffs have produced copies of marriage licenses that, if genuine and valid, establish that each plaintiff is or was lawfully married under state law.
2. Please admit that but for DOMA, each of the plaintiffs would have received the benefit for which he or she applied and which is at issue in this litigation. Response: Denied.
3. Please admit that DOMA did not alter the existing panoply of federal marital benefits and burdens available to married persons except for persons married to someone of the samesex. Response: Defendant objects to the Request as compound, and as seeking an admission as to a legal conclusion.
4. Please admit that the only legal consequence of DOMA is to deny married same-sex couples and surviving spouses of such a marriage the benefits and burdens they would have otherwise had under federal law. 3
Response: Defendant objects to the Request as seeking an admission as to a legal conclusion.
5. Please admit that the United States had never, prior to DOMA, enacted an omnibus definition of marriage applicable to all married persons in all states. Response: Defendant objects that the Request seeks an admission as to the coverage of a myriad of federal statutes, and as such seeks an admission as to a large set of legal conclusions.
6. Please admit that the federal government had never, prior to DOMA, enacted a definition of marriage that applies to all federal statutes and regulations. Response: Defendant objects that the Request seeks an admission as to the coverage of a myriad of federal statutes, and as such seeks an admission as to a large set of legal conclusions.
7. Please admit that except for married same-sex couples, federal statutes and programs in which being married is a requirement for eligibility first look to the individuals or couples marital status under their states law for determining eligibility before applying other eligibility requirements, if any, including but not limited to the length of marriage and non-fraudulent intent. Response: Defendant objects that the Request seeks an admission as to the meaning of a myriad of federal statutes, and as such seeks an admission as to a large set of legal conclusions.
8. Please admit that Congress intended DOMA to prevent the array of federal rights, privileges, and benefits that turn on marital status from being extended to same-sex couples married under state law. Response: Defendant objects to the extent the Request seeks an admission as to a legal conclusion. Subject to and without waiving this objection and the General Objections,
Defendant admits that DOMA reserves the array of federal marital rights, privileges and benefits to traditional marriages.
9. Please admit that DOMA requires same-sex married couples to disavow their state marital status for all federal purposes where marital status is a factor, including on federal forms completed under penalties of perjury, such as income tax returns. Response: Defendant objects to the Request as unduly vague in its use of the term disavow. Defendant objects to the extent the Request seeks an admission as to a legal conclusion. Subject to and without waiving this objection and the General Objections, Defendant admits that persons of the same sex cannot be married to each other within the meaning of federal law, and are not permitted to represent themselves as such for purposes of federal law. Defendant denies that a truthful statement of whether a person is married within the meaning of federal law will require that person to disavow his or her marital status under state law.
10. Please admit that states have had and continue to have variations in eligibility for marriage licenses, including different restrictions based on age, consanguinity, and competence, as well as requirements for blood test. Response: Defendant objects to the Request as seeking an admission as to a wide range of legal conclusions.
11. Please admit that states have had and continue to have variations in whether a ceremony or solemnization is required for the marriage to be valid. Response: Defendant objects to the Request as seeking an admission as to a number of legal conclusions.
12. Please admit that DOMA does not eliminate state variations in marriage eligibility. Response: Defendant objects to the Request as seeking an admission as to a legal conclusion and as to abstract legal effects of DOMA.
13. Please admit that even after DOMA, receipt of federal benefits based on marriage for male-female couples varies depending on how a state chooses to define eligibility requirements for marriage. 5
Response: Defendant objects to the Request as seeking an admission as to a legal conclusion.
14. Please admit that the federal government recognizes state-law-created common law marriage for purposes of federal marital benefits and protections. Response: Defendant objects to the Request as seeking an admission as to a legal conclusion.
15. Please admit that common law marriage is legal in only a small minority of jurisdictions in the United States. Response: Defendant objects that the Request as seeking an admission as to a large number of legal conclusions.
16. Please admit that there has never been an openly gay or lesbian President, U.S. Senator, Cabinet level appointee, or Justice of the United States Supreme Court. Response: Defendant objects to the Request as unduly vague in its use of the term openly. Defendant admits that it is not aware at this time of any openly gay or lesbian person having held any of the listed positions within the federal government, although there are or have been openly gay or lesbian Members of Congress. It is also Defendants understanding that there are or have been one or more federal judges who are openly gay, and that there are pending federal judicial nominees who are openly gay. Gays and lesbians, including openly gay or lesbian individuals, have also held many other high-level positions within the Executive Branch of the federal government and within state government.
17. Please admit that while the United States, through Title VII of the Civil Rights Act of 1964, as amended, prohibits employment discrimination based on race, color, religion, sex and national origin, it has not enacted a law prohibiting employment discrimination based on sexual orientation. Response: Defendant objects to the Request as seeking an admission as to legal conclusions.
18. Please admit that while the United States, through Title VIII of the Civil Rights Act of 1968, as amended, prohibits discrimination in the sale, rental, and financing of dwellings, and in other housing-related transactions, based on race, color, national origin, religion, sex familial status (including children under the age of 18 living with parents or legal custodians, pregnant women, and people securing custody of children under the age of 18), and handicap (disability), it has not enacted a law prohibiting such discrimination based on sexual orientation. Response: Defendant objects to the Request as seeking an admission as to legal conclusions.
19. Please admit that while the United States, through Title II of the Civil Rights Act of 1964, as amended, prohibits discrimination in public accommodations engaged in interstate commerce based on race, color, national origin, and sex, it has not enacted a law prohibiting such discrimination based on sexual orientation. Response: Defendant objects to the Request as seeking an admission as to legal conclusions.
20. Please admit that marrying a person of a different sex is not a reasonable option for gay men and lesbians. Response: Defendant objects to the Request as unreasonably vague in its use of the term reasonable option. Subject to and without waiving this objection or the General Objections, Defendant admits that many gay men and lesbians do not wish to marry a person of a different sex.
21. Please admit that affording married couples of the same-sex federal benefits and burdens tied to marriage will not discourage different-sex couples from marrying. Response: Defendant objects to the Request to the extent its use of the term discourage renders it vague. Defendant denies that including same-sex couples in the federal definition of marriage would have no effect on the manner in which individuals and society as a whole regard the idea of entering into the institution of marriage.
22. Please admit that in the twentieth century and through the present, gay men, lesbians, and bisexual people have suffered a history of discrimination in the United States due to their sexual orientation. Response: Defendant objects to this Request on the ground that the phrase suffered a history of discrimination is vague, and on the ground that the Request asks Defendant to admit or deny a sweeping generalization encompassing more than a century of American history. Defendant further objects to the Request to the extent it seeks an admission as to a legal conclusion. Subject to and without waiving these objections and the General Objections, Defendant admits that in the twentieth century and thereafter, some lesbians and gay men have been treated differently in the United States because of their sexual orientation. Defendant does not
understand the Request as seeking an admission, and does not admit, that this is true of all or most lesbians and gay men in the United States, in the twentieth century or at any other time. Likewise, Defendant does not understand the Request as seeking an admission, and does not admit, that the amount of differential treatment faced by gay men and lesbians is the same in 2011 as it was in years or decades past. Defendant does not understand the Request as seeking an admission, and does not admit, that any given, unspecified instance of differential treatment was unlawful.
23. Please admit that in the twentieth century and through the present, gay men, lesbians, and bisexual people have been subjected to violence and verbal harassment in the United States due to their sexual orientation. Response: Defendant objects to this Request on the grounds that it is compound, that the term verbal harassment is vague and undefined, and that the Request asks Defendant to admit or deny a sweeping generalization encompassing more than a century of American history. Subject to and without waiving these objections and the General Objections, Defendant admits that in the twentieth century and thereafter, some gay men and lesbians have faced violence and verbal 8
expressions of disapproval in the United States because of their sexual orientation. Defendant does not understand the Request as seeking an admission, and does not admit, that this is true of all or most lesbians and gay men in the United States, in the twentieth century or at any other time. Likewise, Defendant does not understand the Request as seeking an admission, and does not admit, that the amount of violence and/or disapproval faced by gay men and lesbians is the same in 2011 as it was in years or decades past.
24. Please admit that sexual orientation, including being heterosexual, gay, lesbian, or bisexual, bears no inherent relation to a persons ability to contribute to society. Response: Defendant objects to this Request on the ground that the phrase ability to contribute to society is vague. Defendant further objects to the extent that the Request seeks an admission as to a legal conclusion. Subject to and without waiving these objections or the General Objections, the House admits that contributions to society have been made by heterosexual, gay, lesbian, and bisexual people.
25. Please admit that in terms of population share, openly gay men, lesbians, and bisexual people are substantially under-represented in federal elected office. For purposes of requests 26-28, please use population share reported by the National Association for Research and Therapy of Homosexuality (NARTH) that the percentage of adults who identify as being gay or lesbian is 1.7 percent and the percent of adults who are bisexual is another 1.8 percent. http://narth.com/2011/04/1-7-percent-of-the-18-and-overpopulation-identify-as-gay/ Response: Defendant objects to the Request on the ground that the term substantially underrepresented is vague and undefined. Defendant further objects to the Request insofar as it implies that elected officials who are not openly gay, lesbian, or bisexual cannot represent gay men, lesbians, or bisexuals. Defendant further states that the NARTH website speaks for itself. Subject to and without waiving these objections or the General Objections, Defendant admits
that the number of openly gay men, lesbians, and bisexual people in federal elected office of whom it is aware make up less than 3.5 percent of all federal elected officeholders.
26. Please admit that in terms of population share, openly gay men, lesbians, and bisexual people are substantially under-represented in state elected office. Response: Defendant objects to the Request on the ground that the terms substantially underrepresented and state elected office are vague and undefined. Defendant further objects to the Request insofar as it implies that elected officials who are not openly gay, lesbian, or bisexual cannot represent gay men, lesbians, or bisexuals. Defendant further states that the NARTH website speaks for itself. Defendant further objects that the Request is unduly burdensome, to the extent that answering it would require determining the number of openly gay men, lesbians, and bisexual people among the thousands of state elected officeholders in this country.
27. Please admit that in terms of population share, openly gay men, lesbians, and bisexual people are substantially under-represented on the federal bench. Response: Defendant objects to the request as unreasonably vague in its failure to define substantial under-representation and the federal bench. Defendant further objects to the Request to the extent it assumes that the federal bench is or should be a representative institution, and insofar as it implies that public officials who are not openly gay, lesbian, or bisexual cannot represent gay men, lesbians, or bisexuals. Defendant further states that the NARTH website speaks for itself. Defendant further objects that the Request is unduly burdensome, to the extent that answering it would require determining the number of openly gay men, lesbians, and bisexual people among the hundreds of federal judges in this country. Subject to and without waiving these objections or the General Objections, Defendant admits that the number of openly
10
gay, lesbian, and bisexual Article III judges of whom it is aware make up less than 3.5 percent of all Article III judges.
28. Please admit that a family consisting of two adoptive parents can be an effective social structure for raising children. Response: Defendant objects to the request as unduly vague in its use of the term effective social structure. Subject to and without waiving this objection and the General Objections, Defendant admits that some families consisting of two adoptive parents are effective in raising children. Defendant does not understand the Request as seeking an admission, and does not admit, that any or every family of two adoptive parents constitutes an effective social structure for raising children. Likewise, Defendant does not understand the Request as seeking an
admission, and does not admit, that, other factors being equal, a child cannot most effectively be raised by the childs two biological parents.
29. Please admit that a family consisting of a biological parent and a step-parent of a different sex can be an effective social structure for raising children. Response: Defendant objects to the request as unduly vague in its use of the term effective social structure. Subject to and without waiving this objection and the General Objections, Defendant admits that some families consisting of a biological parent and a step-parent of a different sex are effective in raising children. Defendant does not understand the Request as seeking an admission, and does not admit, that any or every family involving a step-parent constitutes an effective social structure for raising children. Likewise, Defendant does not understand the Request as seeking an admission, and does not admit, that, other factors being equal, a child cannot most effectively be raised by the childs two biological parents.
11
30. Please admit that a family consisting of a biological parent and his or her spouse of the same sex can be an effective social structure for raising children. Response: Defendant objects to the request as unduly vague in its use of the term effective social structure. Subject to and without waiving this objection and the General Objections, Defendant admits that some families consisting of a biological parent and a same-sex spouse are effective in raising children. Defendant does not understand the Request as seeking an
admission, and does not admit, that any or every family involving a same-sex couple constitutes an effective social structure for raising children. Likewise, Defendant does not understand the Request as seeking an admission, and does not admit, that, other factors being equal, a child cannot most effectively be raised by the childs two biological parents.
31. Please admit that a family consisting of a biological parent and his or her spouse of the same sex who made a decision together to have a child can be an effective social structure for raising children. Response: Defendant objects to the request as unduly vague in its use of the term effective social structure. Subject to and without waiving this objection and the General Objections, Defendant admits that some families consisting of a biological parent and a same-sex spouse are effective in raising children. Defendant does not understand the Request as seeking an
admission, and does not admit, that any or every family involving a same-sex couple constitutes an effective social structure for raising children. Likewise, Defendant does not understand the Request as seeking an admission, and does not admit, that, other factors being equal, a child cannot most effectively be raised by the childs two biological parents.
32. Please admit that except for married same-sex couples, married couples and spouses receive federal marital protections and burdens without regard to their ability to beget, bear or raise children in their marriage. Response: Defendant objects to the Request as seeking an admission as to a legal conclusion. 12
33. Please admit that the Congress of the United States has an interest in the welfare of all children, regardless of their parents marital status. Response: Subject to and without waiving the General Objections, Defendant admits that
Congress and the United States have an interest in the welfare of children of parents of any marital status.
34. Please admit that same-sex couples have the capacity to and do raise healthy and welladjusted children. Response: Defendant objects to this Request on the ground that the term well-adjusted is vague and undefined and on the ground that the Request asks Defendant to admit or deny a sweeping generalization. Subject to and without waiving these objections or the General Objections, Defendant admits that some same-sex couples have raised healthy children. Defendant does not understand the Request as seeking an admission, and does not admit, that any or every family involving a same-sex couple constitutes an effective social structure for raising children. Likewise, Defendant does not understand the Request as seeking an admission, and does not admit, that, other factors being equal, a child cannot most effectively be raised by the childs two biological parents.
35. Please admit that gay men, lesbians, and bisexual people are a minority in the United States. Response: Defendant admits that openly gay men, lesbians, and bisexual people are a minority in the United States, although their numbers vary depending on the definitions and counting methods used. 36. Please admit that interventions to attempt to change ones sexual orientation can be harmful to the psychological well-being of those who are subject to such interventions.
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Response: Defendant objects to the Request on the ground that the term interventions and the phrase harmful to the psychological well-being are vague and undefined and on the ground that the Request asks Defendant to admit or deny a sweeping generalization. Defendant also objects on the ground that the Request is not relevant to the issues in this litigation. Subject to and without waiving these objections or the General Objections, Defendant admits that some attempts to change sexual orientation have caused difficulty and pain for the persons involved. Defendant does not understand the Request as seeking an admission, and does not admit, that every attempt to change ones sexual orientation is psychologically harmful, or that for any given individual any attempt to change sexual orientation will inevitably be harmful.
37. Please admit that sexual orientation, whether for heterosexuals, gay men, lesbians, or bisexual people, is highly resistant to change. Response: Defendant objects to this Request on the ground that the phrase highly resistant to change is vague and undefined and on the ground that the Request asks Defendant to admit or deny a sweeping generalization. Subject to and without waiving these objections or the General Objections, Defendant admits that some people who have attempted to change their sexual orientation have experienced difficulty in doing so.
38. Please admit that in 2004, the Congressional Budget Office concluded that federal recognition of marriages of same-sex couples, even if such marriages were authorized in every State, would reduce non-discretionary outlays. Response: Defendant admits that the author of a 2004 Congressional Budget Office publication predicted that federal recognition of same-sex marriages would reduce federal non-discretionary outlays for the period of the CBOs projections. See Douglas Holtz-Eakin, Cong. Budget Office, The Potential Budgetary Impact of Recognizing Same-Sex Marriage (2004). Defendant states that the above-cited document speaks for itself. Defendant does not understand the Request as 14
seeking and does not make an admission that the authors projections were accurate, either at the time they were made or under changed conditions since that time, or that federal recognition of same-sex marriages would reduce non-discretionary federal outlays over a longer time period.
39. Please admit that it is well-established that both men and women have the capacity to be good parents. Response: Defendant admits that both men and women have the capacity to be good parents, although it is unclear exactly what Plaintiffs mean when they use the lawyers term wellestablished. Defendant therefore objects to the extent that the Request seeks admission as to a legal conclusion.
40. Please admit that since the enactment of DOMA, many leading medical, psychological, and social welfare organizations have issued policies opposing restrictions on lesbian and gay parenting upon concluding that, based on numerous studies, children raised by gay and lesbian parents are as likely to be well-adjusted as children raised by heterosexual parents. See, e.g., American Academy of Pediatrics, htt;://aappolicy.aappublications.org/cgi/content/full/pediatrics;109/2/339 (February 2002 policy statement); American Psychological Association, http://www.apa.org/pi/lgbc/policy/parents.html (July 2004 policy statement); American Academy of Child and Adolescent Psychiatry, http://www.aacap.org/cs/root/policy_statements/gay_lesbian_transgender_and_bisexual_ parents_policy_statement (June 1999 policy statement); American Medical Association, htt;://www.ama-assn.org/ama/pub/about-ama/our-people/member-groups-sections/glbtadvisory-committee/ama-policy-regarding-sexual-orientation.shtml (AMA Policy Regarding Sexual Orientation); Child Welfare League of America, http://www.cwla.org/programs/culture/glbtqposition.htm (Position Statement on Parenting of Children by Lesbian, Gay and Bisexual Adults). Response: Defendant objects to the Request on the ground that the policies of particular private organizations are not relevant to the constitutionality of the Defense of Marriage Act. Defendant further states that the websites listed above speak for themselves. Defendant does not understand the Request to be seeking an admission, and Defendant does not admit, that the policy statements or conclusions of any particular private organization are sound or correct.
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/s/ H. Christopher Bartolomucci Paul D. Clement H. Christopher Bartolomucci Conor B. Dugan Nicholas J. Nelson BANCROFT PLLC 1919 M Street, N.W., Suite 470 Washington, D.C. 20036 (202) 234-0090 Counsel for Defendant-Intervenor The Bipartisan Legal Advisory Group of the U.S. House of Representatives Dated: August 2, 2011
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EXHIBIT H
CONFIDENTIAL
CONFIDENTIAL
CONFIDENTIAL
CONFIDENTIAL
CONFIDENTIAL
4 Pages
EXHIBIT I
Department of the Treasury Internal Revenue Service
Your Federal Income Tax

For Individuals
Publication 17
Catalog Number 10311G
For use in preparing Returns
2009
Get forms and other information faster and easier by: Internet www.irs.gov
Nov 24, 2009
Marital Status
In general, your filing status depends on whether you are considered unmarried or married. For federal tax purposes, a marriage means only a legal union between a man and a woman as husband and wife. Unmarried persons. You are considered unmarried for the whole year if, on the last day of your tax year, you are unmarried or legally separated from your spouse under a divorce or separate maintenance decree. State law governs whether you are married or legally separated under a divorce or separate maintenance decree. Divorced persons. If you are divorced under a final decree by the last day of the year, you are considered unmarried for the whole year. Divorce and remarriage. If you obtain a divorce in one year for the sole purpose of filing tax returns as unmarried individuals, and at the time of divorce you intended to and did remarry each other in the next tax year, you and your spouse must file as married individuals. Annulled marriages. If you obtain a court decree of annulment, which holds that no valid marriage ever existed, you are considered unmarried even if you filed joint returns for earlier years. You must file Form 1040X, Amended U.S. Individual Income Tax Return, claiming single or head of household status for each tax year affected by the annulment that is not closed by the statute of limitations for filing a tax return. The statute of limitations generally does not end until 3 years after your original return was filed. Head of household or qualifying widow(er) with dependent child. If you are considered unmarried, you may be able to file as a head of household or as a qualifying widow(er) with a dependent child. See Head of Household and Qualifying Widow(er) With Dependent Child to see if you qualify. Married persons. If you are considered married for the whole year, you and your spouse can file a joint return, or you can file separate returns. Considered married. You are considered married for the whole year if on the last day of your tax year you and your spouse meet any one of the following tests. 1. You are married and living together as husband and wife. 2. You are living together in a common law marriage that is recognized in the state where you now live or in the state where the common law marriage began. 3. You are married and living apart, but not legally separated under a decree of divorce or separate maintenance. 4. You are separated under an interlocutory (not final) decree of divorce. For purposes of filing a joint return, you are not considered divorced. Spouse died during the year. If your spouse died during the year, you are considered Page 22 Chapter 2 Filing Status
married for the whole year for filing status purposes. If you did not remarry before the end of the tax year, you can file a joint return for yourself and your deceased spouse. For the next 2 years, you may be entitled to the special benefits described later under Qualifying Widow(er) With Dependent Child. If you remarried before the end of the tax year, you can file a joint return with your new spouse. Your deceased spouses filing status is married filing separately for that year. Married persons living apart. If you live apart from your spouse and meet certain tests, you may be considered unmarried. If this applies to you, you can file as head of household even though you are not divorced or legally separated. If you qualify to file as head of household instead of as married filing separately, your standard deduction will be higher. Also, your tax may be lower, and you may be able to claim the earned income credit. See Head of Household, later.
separately). Choose the method that gives the two of you the lower combined tax. How to file. If you file as married filing jointly, you can use Form 1040 or Form 1040A. If you have no dependents, are under 65 and not blind, and meet other requirements, you can file Form 1040EZ. If you file Form 1040 or Form 1040A, show this filing status by checking the box on line 2. Use the Married filing jointly column of the Tax Table or Section B of the Tax Computation Worksheet to figure your tax. Spouse died during the year. If your spouse died during the year, you are considered married for the whole year and can choose married filing jointly as your filing status. See Spouse died during the year, earlier, for more information. Divorced persons. If you are divorced under a final decree by the last day of the year, you are considered unmarried for the whole year and you cannot choose married filing jointly as your filing status.
Single
Your filing status is single if, on the last day of the year, you are unmarried or legally separated from your spouse under a divorce or separate maintenance decree, and you do not qualify for another filing status. To determine your marital status on the last day of the year, see Marital Status, earlier. Widow(er). Your filing status may be single if you were widowed before January 1, 2009, and did not remarry before the end of 2009. However, you might be able to use another filing status that will give you a lower tax. See Head of Household and Qualifying Widow(er) With Dependent Child, later, to see if you qualify. How to file. You can file Form 1040EZ (if you have no dependents, are under 65 and not blind, and meet other requirements), Form 1040A, or Form 1040. If you file Form 1040A or Form 1040, show your filing status as single by checking the box on line 1. Use the Single column of the Tax Table or Section A of the Tax Computation Worksheet to figure your tax.
Filing a Joint Return

Both you and your spouse must include all of your income, exemptions, and deductions on your joint return. Accounting period. Both of you must use the same accounting period, but you can use different accounting methods. See Accounting Periods and Accounting Methods in chapter 1. Joint responsibility. Both of you may be held responsible, jointly and individually, for the tax and any interest or penalty due on your joint return. One spouse may be held responsible for all the tax due even if all the income was earned by the other spouse. Divorced taxpayer. You may be held jointly and individually responsible for any tax, interest, and penalties due on a joint return filed before your divorce. This responsibility may apply even if your divorce decree states that your former spouse will be responsible for any amounts due on previously filed joint returns. Relief from joint responsibility. In some cases, one spouse may be relieved of joint liability for tax, interest, and penalties on a joint return for items of the other spouse that were incorrectly reported on the joint return. You can ask for relief no matter how small the liability. There are three types of relief available. 1. Innocent spouse relief. 2. Separation of liability, which applies to joint filers who are divorced, widowed, legally separated, or have not lived together for the 12 months ending on the date election of this relief is filed. 3. Equitable relief. You must file Form 8857, Request for Innocent Spouse Relief, to request any of these kinds of relief. Publication 971, Innocent Spouse Relief, explains these kinds of relief and who may qualify for them. Signing a joint return. For a return to be considered a joint return, both husband and wife generally must sign the return.
Married Filing Jointly

You can choose married filing jointly as your filing status if you are married and both you and your spouse agree to file a joint return. On a joint return, you report your combined income and deduct your combined allowable expenses. You can file a joint return even if one of you had no income or deductions. If you and your spouse decide to file a joint return, your tax may be lower than your combined tax for the other filing statuses. Also, your standard deduction (if you do not itemize deductions) may be higher, and you may qualify for tax benefits that do not apply to other filing statuses. If you and your spouse each have income, you may want to figure your tax both on a joint return and on separate returns (using the filing status of married filing
TIP
Spouse died before signing. If your spouse died before signing the return, the executor or administrator must sign the return for your spouse. If neither you nor anyone else has yet been appointed as executor or administrator, you can sign the return for your spouse and enter Filing as surviving spouse in the area where you sign the return. Spouse away from home. If your spouse is away from home, you should prepare the return, sign it, and send it to your spouse to sign so that it can be filed on time. Injury or disease prevents signing. If your spouse cannot sign because of disease or injury and tells you to sign, you can sign your spouses name in the proper space on the return followed by the words By (your name), Husband (or Wife). Be sure to also sign in the space provided for your signature. Attach a dated statement, signed by you, to the return. The statement should include the form number of the return you are filing, the tax year, the reason your spouse cannot sign, and that your spouse has agreed to your signing for him or her. Signing as guardian of spouse. If you are the guardian of your spouse who is mentally incompetent, you can sign the return for your spouse as guardian. Spouse in combat zone. If your spouse is unable to sign the return because he or she is serving in a combat zone (such as the Persian Gulf Area, Yugoslavia, or Afghanistan), and you do not have a power of attorney or other statement, you can sign for your spouse. Attach a signed statement to your return that explains that your spouse is serving in a combat zone. For more information on special tax rules for persons who are serving in a combat zone, or who are in missing status as a result of serving in a combat zone, see Publication 3, Armed Forces Tax Guide. Other reasons spouse cannot sign. If your spouse cannot sign the joint return for any other reason, you can sign for your spouse only if you are given a valid power of attorney (a legal document giving you permission to act for your spouse). Attach the power of attorney (or a copy of it) to your tax return. You can use Form 2848, Power of Attorney and Declaration of Representative. Nonresident alien or dual-status alien. A joint return generally cannot be filed if either spouse is a nonresident alien at any time during the tax year. However, if one spouse was a nonresident alien or dual-status alien who was married to a U.S. citizen or resident alien at the end of the year, the spouses can choose to file a joint return. If you do file a joint return, you and your spouse are both treated as U.S. residents for the entire tax year. For information on this choice, see chapter 1 of Publication 519.
status may benefit you if you want to be responsible only for your own tax or if it results in less tax than filing a joint return. If you and your spouse do not agree to file a joint return, you may have to use this filing status unless you qualify for head of household status, discussed next. You may be able to choose head of household filing status if you live apart from your spouse, meet certain tests, and are considered unmarried (explained later, under Head of Household). This can apply to you even if you are not divorced or legally separated. If you qualify to file as head of household, instead of as married filing separately, your tax may be lower, you may be able to claim the earned income credit and certain other credits, and your standard deduction will be higher. The head of household filing status allows you to choose the standard deduction even if your spouse chooses to itemize deductions. See Head of Household, later, for more information. Unless you are required to file separately, you should figure your tax both ways (on a joint return and on separate returns). This way you can make sure you are using the filing status that results in the lowest combined tax. However, you will generally pay more combined tax on separate returns than you would on a joint return for the reasons listed under Special Rules, later.
$2,500 (instead of $5,000 if you filed a joint return). For more information about these expenses, the credit, and the exclusion, see chapter 32. 4. You cannot take the earned income credit. 5. You cannot take the exclusion or credit for adoption expenses in most cases. 6. You cannot take the education credits (the American opportunity credit, Hope credit, and lifetime learning credit), the deduction for student loan interest, or the tuition and fees deduction. 7. You cannot exclude any interest income from qualified U.S. savings bonds that you used for higher education expenses. 8. If you lived with your spouse at any time during the tax year: a. You cannot claim the credit for the elderly or the disabled, b. You will have to include in income more (up to 85%) of any social security or equivalent railroad retirement benefits you received, and c. You cannot roll over amounts from an eligible retirement plan (other than a Roth IRA or designated Roth account) into a Roth IRA. 9. The following deductions and credits are reduced at income levels that are half those for a joint return: a. The child tax credit, b. The retirement savings contributions credit, c. Itemized deductions, and d. The deduction for personal exemptions. 10. Your capital loss deduction limit is $1,500 (instead of $3,000 if you filed a joint return). 11. If your spouse itemizes deductions, you cannot claim the standard deduction. If you can claim the standard deduction, your basic standard deduction is half the amount allowed on a joint return. 12. Your first-time homebuyer credit is limited to $4,000 (instead of $8,000 if you filed a joint return). If the special rule for long-time residents of the same main home applies, the credit is limited to $3,250 (instead of $6,500 if you filed a joint return). Individual retirement arrangements (IRAs). You may not be able to deduct all or part of your contributions to a traditional IRA if you or your spouse were covered by an employee retirement plan at work during the year. Your deduction is reduced or eliminated if your income is more than a certain amount. This amount is much lower for married individuals who file separately and lived together at any time during the year. For more information, see How Much Can You Deduct in chapter 17. Rental activity losses. If you actively participated in a passive rental real estate activity that produced a loss, you generally can deduct the loss from your nonpassive income, up to Chapter 2 Filing Status Page 23
TIP
How to file. If you file a separate return, you generally report only your own income, exemptions, credits, and deductions on your individual return. You can claim an exemption for your spouse if your spouse had no gross income and was not the dependent of another person. However, if your spouse had any gross income or was the dependent of someone else, you cannot claim an exemption for him or her on your separate return. If you file as married filing separately, you can use Form 1040A or Form 1040. Select this filing status by checking the box on line 3 of either form. You also must enter your spouses full name in the space provided and must enter your spouses SSN or ITIN in the space provided unless your spouse does not have and is not required to have an SSN or ITIN. Use the Married filing separately column of the Tax Table or Section C of the Tax Computation Worksheet to figure your tax.
Special Rules
If you choose married filing separately as your filing status, the following special rules apply. Because of these special rules, you will usually pay more tax on a separate return than if you used another filing status that you qualify for. 1. Your tax rate generally will be higher than it would be on a joint return. 2. Your exemption amount for figuring the alternative minimum tax will be half that allowed to a joint return filer. 3. You cannot take the credit for child and dependent care expenses in most cases, and the amount that you can exclude from income under an employers dependent care assistance program is limited to
Married Filing Separately

You can choose married filing separately as your filing status if you are married. This filing
EXHIBIT J
Department of the Treasury Internal Revenue Service
Your Federal Income Tax

For Individuals
Publication 17
Cat. No. 10311G
For use in preparing
1995
Returns
2. Filing Status
Introduction
This chapter discusses which filing status you should use. There are five filing statuses to choose from:

Single taxpayers. You are considered single for the whole year if, on the last day of your tax year, you are unmarried or separated from your spouse by a divorce or a separate maintenance decree. Divorced persons. State law governs whether you are married, divorced, or legally separated under a decree of separate maintenance. If you are divorced under a final decree by the last day of the year, you are considered unmarried for the whole year. Exception. If you obtain a divorce in one year for the sole purpose of filing tax returns as unmarried individuals, and at the time of divorce you intended to and did remarry each other in the next tax year, you and your spouse must file as married individuals. Annulled marriages. If you obtain a court decree of annulment, which holds that no valid marriage ever existed, and you do not remarry, you must file as single or head of household, whichever applies, for that tax year. You must also file amended returns (Form 1040X, Amended U.S. Individual Income Tax Return ) claiming single or head of household status for all tax years affected by the annulment that are not closed by the statute of limitations for filing a tax return. The statute of limitations generally does not expire until 3 years after your original return was filed. Head of household or qualifying widow(er) with dependent child. If you are considered unmarried, you may be able to file as a head of household or as a qualifying widow(er) with a dependent child. See Head of Household and Qualifying Widow(er) With Dependent Child to see if you qualify. Married taxpayers. You and your spouse may be able to file a joint return, or you may file separate returns. You are considered married for the whole year if on the last day of your tax year you are either: 1) Married and living together as husband and wife, 2) Living together in a common law marriage that is recognized in the state where you now live or in the state where the common law marriage began, 3) Married and living apart, but not legally separated under a decree of divorce or separate maintenance, or 4) Separated under an interlocutory (not final) decree of divorce. For purposes of filing a joint return you are not considered divorced.
Single Married Filing Jointly Married Filing Separately Head of Household Qualifying Widow(er) With Dependent Child
the next 2 years, you may be entitled to the special benefits described later under Qualifying Widow(er) With Dependent Child. If you remarried before the end of the tax year, you may file a joint return with your new spouse. Your deceased spouses filing status is married filing separately for that year. Married persons living apart. If you live apart from your spouse and meet certain tests, you may be considered unmarried. Therefore, you may file as head of household even though you are not divorced or legally separated. If you qualify to file as head of household instead of as married filing separately, your standard deduction will be higher. Also, your tax may be lower, and you may be able to claim the earned income credit. See Head of Household, later.
If more than one filing status applies to you, choose the one that will give you the lowest tax. Your filing status is a category that identifies you based on your marital and family situation. State law governs whether you are married, divorced, or legally separated under a decree of divorce or separate maintenance. Your filing status is an important factor in determining whether you are required to file (see Chapter 1), the amount of your standard deduction (see Chapter 21), and your correct amount of tax (see Chapter 31). Your filing status is also important in determining whether you can take other deductions and credits. If you file Form 1040 or Form 1040A, indicate your filing status by checking the appropriate box on lines 1 through 5. There are different tax rates for different filing statuses. To determine your correct amount of tax, use the column in the Tax Table or Tax Rate Schedule in your forms package that applies to your filing status.
Single
Your filing status is single if you are unmarried or separated from your spouse by a divorce or separate maintenance decree, and you do not qualify for another filing status. However, if you were considered married for part of the year and lived in a community property state (listed under Separate Returns), special rules may apply in determining your income and expenses. See Publication 555 for more information. Your filing status may be single if you were widowed before January 1, 1995, and did not remarry in 1995. However, you may be able to use another filing status that will give you a lower tax. See Head of Household and Qualifying Widow(er) With Dependent Child to see if you qualify. You may file Form 1040EZ (if you have no dependents and are under 65 and not blind), Form 1040A, or Form 1040. If you file Form 1040A or Form 1040, show your filing status as single by checking the box on line 1. Use the Single column of the Tax Table, or Schedule X of the Tax Rate Schedules, to figure your tax.
Useful Items
You may want to see: Publication 501 Exemptions, Standard Deduction, and Filing Information 519 U.S. Tax Guide for Aliens 555 Federal Tax Information on Community Property Form (and Instructions) 1040X Amended U.S. Individual Income Tax Return
Married Filing Jointly

You may choose married filing jointly as your filing status if you are married and both you and your spouse agree to file a joint return. On a joint return, you report your combined income and deduct your combined allowable expenses. If you and your spouse decide to file a joint return, your tax may be lower than your combined tax for the other filing statuses. Also, your standard deduction (if you do not itemize deductions) may be higher, and you may qualify for tax benefits that do not apply to other filing statuses. You may file a joint return even if one of you had no income or deductions. If you and your spouse each have income, you may want to figure your tax both on a joint return and on separate returns (using the filing status
Marital Status
In general, your filing status depends on whether you are considered single or married. Page 22 Chapter 2 FILING STATUS
Spouse died during the year. If your spouse died during the year, you are considered married for the whole year for filing status purposes. If you did not remarry before the end of the tax year, you may file a joint return for yourself and your deceased spouse. For
of married filing separately). Choose the method that gives you the lower tax. If you file as married filing jointly, you may use Form 1040EZ (if you have no dependents and are under 65 and not blind), Form 1040A, or Form 1040. If you file Form 1040A or Form 1040, show this filing status by checking the box on line 2. Use the Married filing jointly column of the Tax Table, or Schedule Y1 of the Tax Rate Schedules, to figure your tax. Spouse died during the year. If your spouse died during the year, you are considered married for the whole year for filing status purposes. Divorced persons. If you are divorced under a final decree by the last day of the year, you are considered unmarried for the whole year.
1) 10% of your adjusted gross income (AGI) for the preadjustment year, if your AGI was $20,000 or less, or 2) 25% of your AGI for the preadjustment year, if your AGI was more than $20,000. Your preadjustment year is your most recent tax year ending before a deficiency notice was mailed. If you were married to a different person at the end of the preadjustment year, your AGI includes your new spouses income, whether or not you filed a joint return for that year. For purposes of this exception, community property rules do not apply to items of gross income (other than gross income from property). Divorced taxpayer. You may be held jointly and individually responsible for any tax, interest, and penalties due on a joint return filed before your divorce. This responsibility applies even if your divorce decree states that your former spouse will be responsible for any amounts due on previously filed joint returns. Signing a joint return. For a return to be considered a joint return, both husband and wife must sign the return. If your spouse died before signing the return, see Signing the return in Chapter 4. Spouse away from home. If your spouse is away from home, you should prepare the return, sign it, and send it to your spouse to sign so that it can be filed on time. Injury or disease prevents signing. If your spouse cannot sign because of disease or injury and tells you to sign, you may sign your spouses name in the proper space on the return followed by the words By (your name), Husband (or Wife). Be sure to also sign in the space provided for your signature. Attach a dated statement, signed by you, to the return. The statement should include the form number of the return you are filing, the tax year, the reason your spouse cannot sign, and that your spouse has agreed to your signing for him or her. Signing as guardian of spouse. If you are the guardian of your spouse who is mentally incompetent, you may sign the return for your spouse as guardian. Other reasons spouse cannot sign. If your spouse cannot sign the joint return for any other reason, you may sign for your spouse only if you are given a valid power of attorney (a legal document giving you permission to act for your spouse). Attach the power of attorney to your tax return. You may use Form 2848, Power of Attorney and Declaration of Representative. Spouse in combat zone. If your spouse is unable to sign the return because he or she is serving in a combat zone, such as the Persian Gulf Area, and you do not have a power of attorney or other statement, you may sign your joint return if you attach your own signed written statement to your return that explains that
your spouse is serving in the combat zone. When you file, write Desert Storm at the top of your return and on the envelope in which you mail it. For more information on special tax rules for persons who are serving in a combat zone, get Publication 3, Tax Information for Military Personnel. Nonresident alien or dual-status alien. A joint return generally cannot be made if either spouse is a nonresident alien at any time during the tax year. However, if at the end of the year one spouse was a nonresident alien or dual-status alien married to a U.S. citizen or resident, both spouses may choose to file a joint return. If you do file a joint return, you and your spouse are both taxed as U.S. citizens or residents for the entire tax year. See Nonresident Spouse Treated as a Resident in Chapter 1 of Publication 519.
Filing a Joint Return

Both you and your spouse must include all of your income, exemptions, and deductions on your joint return. Accounting period. Both of you must use the same accounting period, but you may use different accounting methods. See Accounting Periods and Accounting Methods in Chapter 1. Joint responsibility. Both of you may be held responsible, jointly and individually, for the tax and any interest or penalty due on your joint return. One spouse may be held responsible for all the tax due even though all the income was earned by the other spouse. Innocent spouse exception. Under certain circumstances, you may not have to pay the tax, interest, and penalties on a joint return. You must establish that you did not know, and had no reason to know, that there was a substantial understatement of tax that resulted because your spouse: 1) Omitted a gross income item, or 2) Claimed a deduction, credit, or property basis in an amount for which there is no basis in fact or law. The facts and circumstances must also indicate that it is unfair for you to pay the tax due. One consideration is whether you significantly benefited from the substantial understatement of tax. Normal support received from your spouse is not a significant benefit. Another consideration may be whether you were later divorced or deserted by your spouse. This exception applies only if your spouses action resulted in an understatement of tax of more than $500. In addition, if the tax understatement resulted from claiming a deduction, credit, or basis, the exception applies only if the additional tax, interest, and penalties are more than:
Married Filing Separately

You may choose married filing separately as your filing status if you are married. This method may benefit you if you want to be responsible only for your own tax or if this method results in less tax than a joint return. If you and your spouse do not agree to file a joint return, you may have to use this filing status. If you live apart from your spouse and meet certain tests, you may be considered unmarried and file as head of household. This is true even though you are not divorced or legally separated. If you qualify to file as head of household, instead of as married filing separately, your tax may be lower, you may be able to claim the earned income credit, and your standard deduction will be higher. The head of household filing status allows you to choose the standard deduction even if your spouse chooses to itemize deductions. See Head of Household, later, for more information. Unless you are required to file separately, you may want to figure your tax both ways (on a joint return and on separate returns). Do this to make sure you are using the method that results in the lower combined tax. However, you will generally pay more combined tax on separate returns than you would on a joint return because the tax rate is higher for married persons filing separately. If you file a separate return, you generally report only your own income, exemptions, credits, and deductions on your individual return. You may file a separate return and claim an exemption for your spouse if your spouse had no gross income and was not a dependent of another person. However, if your spouse had any gross income, or was the dependent of someone else, you may not claim an exemption for him or her on your separate return.
Chapter 2
FILING STATUS
Page 23
EXHIBIT K
Internal Revenue Service Number: INFO 2001-0294 Release Date: 12/31/2001 Index No.: 1.04-00, 6013.03-00
Department of the Treasury

Washington, DC 20224 Person to Contact: Telephone Number:
(202) 622-4920
Refer Reply To:
CC:ITA:4 CONEX-153421-01
Date:
Dear
This responds to your August 30, 2001, letter to Commissioner Rossotti requesting information on the filing status for federal income tax purposes of a party to a Vermont civil union. Section 3 of the Defense of Marriage Act (DOMA), Pub. L. 104-199, 110 Stat. 2419 (1996) provides that in determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the 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. Section 6013 of the Internal Revenue Code provides that a husband and wife may make a single return jointly of income taxes. Section 1(a) provides tax rates for married individuals filing joint returns and surviving spouses. Because parties to a Vermont civil union must be of the same sex, a Vermont civil union cannot, under DOMA, be a marriage for purposes of the Internal Revenue Code. Therefore, parties to a Vermont civil union cannot be considered as married for purposes of 1 or as husband and wife for purposes of 6013. Section 1(c) provides tax rates for unmarried Individuals (other than surviving spouses and heads of households). This status is referred to as Single on Form 1040, U.S. Individual Income Tax Return, and its instructions. Filing as Single on Form 1040 means only that the filer does not claim filing status as a married person, surviving spouse, or head of household. Thus, a party to a Vermont civil union is not precluded from filing as Single. I hope this information is helpful. Please contact the person named above if you need further information. Sincerely, Robert A. Berkovsky Branch Chief Office of Associate Chief Counsel (Income Tax & Accounting)

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Case 3:10-cv-01750-VLB Document 100 Filed 09/14/11

SECOND AFFIDAVIT OF GARY D. BUSECK

/s/ Gary D. Buseck _____________________________________ Gary D. Buseck

Case 3:10-cv-01750-VLB Document 100-1 Filed 09/14/11 7 Pages

Letitia Anne Peplau

June 17, 2011 Page 1

DEPOSITION OF LETITIA ANNE PEPLAU, Ph.D.,

Friday, June 17, 2011

Telephone: 212.349.9692 Facsimile: 212.557.2152

One Penn Plaza

Suite 4715 New York, NY 10119

Letitia Anne Peplau

June 17, 2011 Page 25

L.A. Peplau, Ph.D. acts? Object to the form.

Same objection. You know, how I would classify such a

What research shows is that people orientation

come to understand their sexual

describe the continuum of sexual orientation.

Telephone: 212.349.9692 Facsimile: 212.557.2152

One Penn Plaza

Suite 4715 New York, NY 10119

Letitia Anne Peplau

June 17, 2011 Page 51

lesbians and bisexuals as a group? A. In DOMA, the federal government

Telephone: 212.349.9692 Facsimile: 212.557.2152

One Penn Plaza

Suite 4715 New York, NY 10119

Letitia Anne Peplau

June 17, 2011 Page 52

L.A. Peplau, Ph.D. And that failure to recognize

of a category of people based on some characteristic. In this case on sexual

There are many markers of stigma or So one reflection of

stigma takes many forms.

stigma would be public attitudes of disapproval and lack of acceptance for

Telephone: 212.349.9692 Facsimile: 212.557.2152

One Penn Plaza Suite 4 7 1 5 New York, NY 10119

Letitia Anne Peplau

June 17, 2011 Page 53

Telephone: 212.349.9692 Facsimile: 212.557.2152

One Penn Plaza Suite 4715 New York, NY 10119

Page 100 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 L.A. gay male c o u p l e s Q. Thank Peplau, Ph.D. monogamous.".

classification would be 74.8 percent.

Telephone: 212.349.9692 Facsimile: 212.557.2152

One Penn Plaza

Suite 4715 New York, NY 10119

Case 3:10-cv-01750-VLB Document 100-2 Filed 09/14/11

In The Matter Of:

NANCY F. COTT, PH.D. - Vol. 1

COTT, PH.D. - 7/6/2011

I'm not sure I understand the question.

Merrill Corporation - New York 1-800-325-3376 www.merrillcorp.com/law

COTT, PH.D. - 7/6/2011

neutrality"? A Yes. In much of marriage law in the past,

men and women? MR. EHRLICH: Objection to the form. And

Merrill Corporation - New York 1-800-325-3376 www.merrillcorp.com/law

COTT, PH.D. - 7/6/2011

And other nonconforming groups were

In the final paragraph you write, "The

Merrill Corporation - New York 1-800-325-3376 www.merrillcorp.com/law

COTT, PH.D. - 7/6/2011

I am not entirely sure.

Objection to the form.

I mean, I think it was pretty broad. I mean, what it showed was

I can answer that.