2:12-cv-00887 #33

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Paul D. Clement (DC Bar 433215)
pclement@bancroftpllc.com
H. Christopher Bartolomucci (DC Bar 453423)
cbartolomucci@bancroftpllc.com
Conor B. Dugan (DC Bar 1006458)
cdugan@bancroftpllc.com
Nicholas J. Nelson (DC Bar 1001696)
nnelson@bancroftpllc.com

BANCROFT PLLC
1919 M Street, N.W.
Suite 470
Washington, D.C. 20036
202-234-0090 (telephone)
202-234-2806 (facsimile)

Of Counsel:
Kerry W. Kircher, General Counsel (DC Bar 386816)
Kerry.Kircher@mail.house.gov
William Pittard, Deputy General Counsel (DC Bar 482949)
William.Pittard@mail.house.gov
Christine Davenport, Senior Assistant Counsel (NJ Bar 043682000)
Christine.Davenport@mail.house.gov
Kirsten W. Konar, Assistant Counsel (DC Bar 979176)
Kirsten.Konar@mail.house.gov
Todd B. Tatelman, Assistant Counsel (VA Bar 66008)
Todd.Tatelman@mail.house.gov
Mary Beth Walker, Assistant Counsel (DC Bar 501033)
MaryBeth.Walker@mail.house.gov

OFFICE OF GENERAL COUNSEL,
U.S. HOUSE OF REPRESENTATIVES
219 Cannon House Office Building
Washington, D.C. 20515
202-225-9700 (telephone)
202-226-1360 (facsimile)

Counsel for Proposed Intervenor-Defendant the Bipartisan
Legal Advisory Group of the U.S. House of Representatives
Case 2:12-cv-00887-CBM-AJW Document 33 Filed 04/17/12 Page 1 of 13 Page ID #:269

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
Western Division

) No. 2:12-cv-00887-CBM (AJWx)
TRACEY COOPER-HARRIS and )
MAGGIE COOPER-HARRIS, )
)
Plaintiffs, )
)
)
)
v. )
)
UNITED STATES OF AMERICA, et al., )
) Hearing: May 7, 2012
Defendants. ) Time: 10:00 am
) Hon. Consuelo B. Marshall
)

On April 2, 2012, the Bipartisan Legal Advisory Group of the U.S. House of
Representatives (House) moved for leave to intervene as a party-defendant for
the purpose of defending against plaintiffs equal protection challenges two Acts of
Congress Section 3 of the Defense of Marriage Act, Pub. L. No. 104-109, 110
Stat. 2419 (1996) (DOMA), codified at 1 U.S.C. 7, and 38 U.S.C. 101(3) &
(31) (Section 101) that the Department of Justice refuses to defend. See
Unopposed Mot. of the [House] for Leave to Intervene (Apr. 2, 2012) (ECF No.
17) (Mot. to Intervene). Counsel for plaintiffs represented to us at that time that
their clients did not oppose the motion. See Mot. to Intervene at 3.

REPLY TO PLAINTIFFS
RESPONSE TO
UNOPPOSED MOTION OF
THE BIPARTISAN LEGAL
ADVISORY GROUP OF
THE U.S. HOUSE OF
REPRESENTATIVES FOR
LEAVE TO INTERVENE

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The plaintiffs now have filed a response to the Motion to Intervene which
purports to reserve certain issues and questions the Houses authority to move to
intervene here in the first place. See Pls. Resp. to Mot. of the [House] to Intervene
. . . (Apr. 5, 2012) (ECF No. 26) (Pls. Resp.). We now reply.
DISCUSSION
A. Plaintiffs first purport to reserve the right to challenge the legality of
[the Houses] participation in this action, presumably at some later date,
including, but not limited to, [the Houses] lack of standing to pursue any appeal
under Article III of the U.S. Constitution. Id. at 2. Of course, no reservation is
required for jurisdictional objections of this nature, although common sense and
respect for the courts dictate that these too should be raised in a reasonably prompt
fashion if a party has any basis for raising them.
1

To the extent plaintiffs purport to reserve the right to raise at some later date
any non-jurisdictional issue, their purported reservation fails. Local Rules, not
to mention the orderly administration of justice, require that plaintiffs oppose the
Houses intervention at the time the House seeks such relief if plaintiffs have any
basis for doing so. The Rules do not sanction the wait and see approach that

1
We have explained at some length elsewhere why the House has standing to intervene
here, and why the House, as an intervenor-defendant, would have standing to appeal an adverse
ruling. See Mem. of P. & A. in Supp. of Unopposed Mot. of [House] for Leave to Intervene at
17-21 (April 2, 2012) (ECF No. 19) (House Intervention Memo); Reply to Executive Branch
Defs. Resp. to Unopposed Mot. of the [House] for Leave to Intervene at 4-5 (Apr. 17, 2012)
(ECF No. 31). We incorporate those arguments here.

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plaintiffs appear to envision, and generic statements that plaintiffs reserve the right
to challenge the legality of [the House]s participation, id. at 2 whatever that
means do not relieve them of their procedural obligations under this Courts
Local Rules. See, e.g., L. Civ. R. 7-9 (Each opposing party shall, [at specified
dates], serve [opposing papers] upon all other parties . . . .); L. Civ. R. 7-12 (The
Court may decline to consider any memorandum . . . not filed within the deadline
set by . . . local rule. The failure to file any required paper . . . within the deadline[]
may be deemed consent to the granting . . . of the motion.); People of Cal., ex rel.
Swim v. Dist. Dir., No. 0200495, 2002 WL 1988181, at *1 (C.D. Cal. July 8,
2002) (Under Local Rule 79, a party must file opposition papers no later than 14
days before the date designated for the hearing of the motion. Failure to do so,
under Local Rule 712, may result in a finding that the party has consented to
granting the motion.); City of Santa Clarita v. U.S. Dept of Interior, No. 02-
00697, 2006 WL 4743970, at *11 (C.D. Cal. Jan. 30, 2006) (plaintiffs claims
abandoned and waived where Plaintiffs ha[d] no legal basis for reserving
argument on any claims for relief and briefing schedule was expressly stipulated
to).
2

Inasmuch as plaintiffs specifically have not opposed the relief the House

2
Cf. Safeco Ins. Co. v. Rawstrom, 183 F.R.D. 668, 671-72 (C.D. Cal. 1998)
([Discovery] [o]bjections not interposed in a timely initial response may not be held in reserve
and interposed after the period allowed for response by [the Federal Rules of Civil Procedure].).

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seeks here, they have forfeited the opportunity to raise later any non-jurisdictional
argument against the Houses intervention.
B. We explained earlier that, on March 9, 2011 after the Attorney General
announced in February 2011 that the Department would abandon its constitutional
responsibility to defend DOMA Section 3 against equal protection challenges the
House determined to defend that statute in civil actions in which Section 3s
constitutionality has been challenged. See House Intervention Memo at 3-5. We
also explained that, after the Attorney General announced one year later that the
Department also would abandon its constitutional responsibility to defend Section
101 against equal protection challenges, the House determined that it would defend
that statute in this and other cases in which Section 101s constitutionality has been
challenged. Id. at 5-6.
Notwithstanding the Houses explicit and unambiguous representations to
the Court regarding its decision to defend Section 101, which representations are
entitled to respect here,
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and notwithstanding plaintiffs own admission that such a
decision was in fact made see Pls. Resp. at 4 (some Members of the Bipartisan

3
See Zivotofsky v. Clinton, --- U. S. ---, 132 S. Ct. 1421, 1433, --- L. Ed. 2d --- (2012)
(Sotomayor, J., concurring in part and in judgment) (Because of the respect due to a coequal
and independent department . . . , courts properly resist calls to question the good faith with
which another branch attests to the authenticity of its internal acts.); United States v. Munoz-
Flores, 495 U.S. 385, 409-10, 110 S. Ct. 1964, 109 L. Ed. 2d 384 (1990) (Scalia, J., concurring
in judgment) (Mutual regard between the coordinate branches, and the interest of certainty, both
demand that official representations regarding . . . matters of internal process be accepted at face
value.).

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Legal Advisory Group have called upon the other members . . . to rescind the
decision to defend the constitutionality of [Section 101] in this and similar cases)
(emphasis added) plaintiffs now question the Houses authority to intervene here
to defend Section 101. Specifically, plaintiffs say [the Houses] intervention [to
defend the constitutionality of Section 101 in this case] would appear to exceed the
scope of the resolution authorizing [the House]s participation in the myriad cases
challenging the constitutionality of [DOMA] Section 3, because (plaintiffs claim)
not all Members of the Bipartisan Legal Advisory Group were consulted and no
formal vote was taken. Id. at 3.
4

Plaintiffs seem to be saying one or more of the following: (1) the Speaker,
as a factual matter, did not consult with all Members of the Bipartisan Legal
Advisory Group regarding Section 101; or (2) the decision the House made in
March 2011, to defend DOMA Section 3 does not permit it also to defend Section
101 in this case; or (3) having once made a decision to defend DOMA Section 3,
the House can never thereafter decide to defend another statute that the Department
declines to defend; or (4) the House can only decide in one particular procedural
manner i.e., the manner the House utilized in March 2011 to defend the
constitutionality of statutes whose defense the Department has abandoned; and (5)

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The resolution to which plaintiffs refer was not a resolution at all. It was a simple
motion, as plaintiffs own papers indicate. See Pls. Resp., Ex. 1 (ECF No. 26-1).

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how the House determines whether to defend the constitutionality of Acts of
Congress whose defense the Executive Branch has abandoned is somehow the
concern of the plaintiffs and/or the courts.
Regardless of whichever one or more of these things plaintiffs are saying,
they are wrong for the following three reasons.
The Bipartisan Legal Advisory Group is entirely the creature of the House
of Representatives and its Rules. The Group exists for the purpose of assisting the
Speaker in providing direction to the House General Counsel. See Rule II.8, Rules
of the House of Representatives, 112th Cong. (2011) (The Office of the General
Counsel shall function pursuant to the direction of the Speaker, who shall consult
with a Bipartisan Legal Advisory Group, which shall include the majority and
minority leaderships.), attached as Ex. 1. Rule II.8, like the other rules of the
House, was adopted pursuant to the Rulemaking Clause, U.S. Const., art. I, 5, cl.
2, which is a broad grant of authority, Consumers Union v. Periodical
Correspondents Assn, 515 F.2d 1341, 1343 (D.C. Cir. 1975), that sits [a]t the
very core of our constitutional separation of powers. Walker v. Jones, 733 F.2d
923, 938 (D.C. Cir. 1984) (MacKinnon, J., concurring in part and dissenting in
part). The Supreme Court has made perfectly clear that while House Rules may
not ignore constitutional restraints or violate fundamental rights, they otherwise are

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absolute and beyond the challenge of any other body or tribunal. United States
v. Ballin, 144 U.S. 1, 5 (1892).
It follows, therefore, that determining how to interpret and apply Rule II.8
and, in particular, determining what constitutes appropriate consult[ation] under
that Rule are internal matters for the House, and the House alone, to decide.
Accordingly, plaintiffs assertion (5) that how the House determined to defend
the constitutionality of Section 101 in this case is somehow the concern of the
plaintiffs and/or the courts is incorrect. For the same reason, plaintiffs
assertions (3) and (4) that having once decided to defend DOMA Section 3, the
House can never thereafter decide to defend another statute that the Department
declines to defend; and that the House is required to use only the procedure it used
in March 2011, to determine whether to defend the constitutionality of statutes
whose defense the Department has abandoned also are manifestly incorrect.
Plaintiffs assertion (2) that the decision the House made in March 2011
to defend DOMA Section 3 does not permit it to defend Section 101 here also is
wrong.
The Houses March 2011 decision to defend DOMA Section 3 which was
taken formally by the Speaker and Bipartisan Legal Advisory Group, pursuant to a
written motion directs the House General Counsel to take such steps as he
considers appropriate . . . to protect the interest of the House in litigation in which

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the Attorney General has ceased to defend the constitutionality of section 3 of the
Defense of Marriage Act. Pls. Resp., Ex. 1.
The plaintiffs in this case plainly have challenged the constitutionality of
DOMA Section 3, Compl. for Declaratory, Injunctive, and Other Relief 57, 69
(Feb. 1, 2012) (ECF No. 1), and the Department plainly has ceased to defend the
constitutionality of section 3 of [DOMA], including in this case. See Notice to
the Court (Feb. 24, 2012) (ECF No. 16). Therefore, the Houses Motion to
Intervene falls squarely within the plain language of the March 2011 authorizing
motion, notwithstanding that the Houses defense of Section 3 here also will entail
the defense of a parallel statutory provision (i.e., Section 101) that uses the same
definition as DOMA and performs the same function in its respective statutory
scheme.
Insofar as the House is concerned and, for the reasons stated above, the
scope of the March 2011 authorization motion concerns the House, and only the
House, see supra p. 6-7 no additional authorization was necessary.
Finally, even if some further procedure were necessary (which it is not),
and even if that were a proper matter of inquiry for plaintiffs and/or for the courts
(which it is not), plaintiffs assertion (1) that the Speaker did not consult with
all Members of the Bipartisan Legal Advisory Group in deciding to defend Section
101 is inaccurate. The staff representatives for each Member of the Bipartisan

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Legal Advisory Group were consulted, and that consultation was wholly in
conformity with the method by which the Group routinely and customarily makes
decisions. Memorandum to File from Jo-Marie St. Martin, General
Counsel/Chief of Legislative Operations for the Speaker of the House (April 16,
2012), attached as Ex. 2.
5

C. Finally, we are constrained to point out that, notwithstanding plaintiffs
avowal that the President and Attorney General have determined that [Sections 3
and 101] are unconstitutional, Pls. Resp. at 4 (emphasis added) that
determination is legally meaningless. While the Department can, as a practical
matter, abandon its constitutional responsibilities and refuse to defend duly-
enacted federal statutes, as it has here, the responsibility for determining whether a
statute is consistent with the Constitution remains, under our system of
government, the province of the judiciary. See U.S. Const. art. III; Marbury v.
Madison, 5 U.S. (1 Cranch) 137, 177-80, 2 L. Ed. 60 (1803). The Department
itself recently acknowledged as much: Where a plaintiff properly invokes the

5
We noted earlier and plaintiffs do not appear to dispute that, while the Bipartisan
Legal Advisory Group strives for unanimity, it functions on a majoritarian basis, like the
institution it represents, when unanimity cannot be achieved. See Mot. to Intervene at 2 n.1; see
also Br. Amicus Curiae of the Bipartisan Legal Advisory Group . . . in Supp. of Affirm., at *1
n.2, Dickerson v. United States, No. 99-5525, 2000 WL 271995 (S. Ct. Mar. 9, 2000) (Bipartisan
Legal Advisory Group as amicus; two Members declined to support filing of brief); Br. of the
Speaker & Bipartisan Leadership Group, at *1 n.1, Bowsher v. Synar, Nos. 85-1377, 85-1378 &
85-1379, 1985 WL 669479 (S. Ct. Mar. 19, 1986) (Bipartisan Legal Advisory Group as
intervenor-appellant; one Member declined to support intervention).

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jurisdiction of a court and presents a justiciable challenge, there is no dispute that
courts properly review the constitutionality of Acts of Congress. Letter from Eric
H. Holder, Jr., Atty Gen. to Hon. Jerry E. Smith, Emilio M. Garza, & Leslie H.
Southwick, Cir. Js. at 2, Physician Hosps. of Am. v. Sebelius, No. 11-40631 (5th
Cir. Apr. 5, 2012) (ECF No. 00511812922).
CONCLUSION
For all the reasons stated above and earlier, the Houses Motion to Intervene
should be granted.
Respectfully submitted,

By: /s/ Paul D. Clement
Paul D. Clement

BANCROFT PLLC

Counsel for Proposed Intervenor-Defendant
the Bipartisan Legal Advisory Group of the
U.S. House of Representatives

April 17, 2012

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CERTIFICATE OF SERVICE
I hereby certify that on April 17, 2012, I electronically filed the foregoing
Reply to Plaintiffs Response to Unopposed Motion of the Bipartisan Legal
Advisory Group of the U.S. House of Representatives for Leave to Intervene with
the Clerk of Court by using the CM/ECF system, which provided an electronic
notice and electronic link of the same to the following attorneys of record through
the Courts CM/ECF system:
Caren E. Short
Joseph J. Levin, Jr.
SOUTHERN POVERTY LAW CENTER
400 Washington Avenue
Montgomery, AL 36104
caren.short@splcenter.org
joe.levin@splcenter.org

Christine P. Sun
ACLU of Southern California
1616 Beverly Boulevard
Los Angeles, CA 90026
christine.sun@splcenter.org

Eugene Marder
WILMER CUTLER PICKERING HALE & DORR LLP
950 Page Mill Road
Palo Alto, CA 94304
eugene.marder@wilmerhale.com

Matthew D. Benedetto
350 South Grand Avenue Suite 2100
matthew.benedetto@wilmerhale.com


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Randall R. Lee
350 South Grand Avenue Suite 2100
randall.lee@wilmerhale.com

Jean Lin, Trial Attorney
US DEPARTMENT OF JUSTICE
Civil Division - Federal Programs Branch
20 Massachusetts Avenue NW
Washington, DC 20530
jean.lin@usdoj.gov

/s/ Kerry W. Kircher
Kerry W. Kircher

Exhibit 1

Case 2:12-cv-00887-CBM-AJW Document 33-1 Filed 04/17/12 Page 1 of 4 Page ID #:282
RULES
of the
HOUSE OF REPRESENTATIVES
ONE HUNDRED TWELFTH CONGRESS
PREPARED BY
Karen L. Haas
Clerk of the House of Representatives
JANUARY 5, 2011
(Rev. 10511)
III
C O N T E N T S
Page
RULE I. The Speaker 1
II. Other Officers and Officials 2
III. The Members, Delegates, and Resident Commissioner of Puerto
Rico 3
IV. The Hall of the House 3
V. Broadcasting the House 4
VI. Official Reporters and News Media Galleries 4
VII. Records of the House 4
VIII. Response to Subpoenas 5
IX. Questions of Privilege 5
X. Organization of Committees 6
XI. Procedures of Committees and Unfinished Business 16
XII. Receipt and Referral of Measures and Matters 24
XIII. Calendars and Committee Reports 25
XIV. Order and Priority of Business 27
XV. Business in Order on Special Days 28
XVI. Motions and Amendments 29
XVII. Decorum and Debate 30
XVIII. The Committee of the Whole House on the state of the Union 30
XIX. Motions Following the Amendment Stage 32
XX. Voting and Quorum Calls 32
XXI. Restrictions on Certain Bills 34
XXII. House and Senate Relations 36
XXIII. Code of Official Conduct 38
XXIV. Limitations on Use of Official Funds 39
XXV. Limitations on Outside Earned Income and Acceptance of Gifts 40
XXVI. Financial Disclosure 44
XXVII. Disclosure by Members and Staff of Employment Negotiations 52
XXVIII. [Reserved] 53
XXIX. General Provisions 53
HOUSE OF REPRESENTATIVES 3
Sergeant-at-Arms. Each report shall
include financial statements and a de-
scription or explanation of current op-
erations, the implementation of new
policies and procedures, and future
plans for each function.
(f) The Sergeant-at-Arms shall fully
cooperate with the appropriate offices
and persons in the performance of re-
views and audits of financial records
and administrative operations.
Chief Administrative Officer
4. (a) The Chief Administrative Offi-
cer shall have operational and finan-
cial responsibility for functions as as-
signed by the Committee on House Ad-
ministration and shall be subject to
the oversight of the Committee on
House Administration.
(b) In addition to any other reports
required by the Committee on House
Administration, the Chief Administra-
tive Officer shall report to the Com-
mittee on House Administration not
later than 45 days following the close
of each semiannual period ending on
June 30 or December 31 on the financial
and operational status of each function
under the jurisdiction of the Chief Ad-
ministrative Officer. Each report shall
include financial statements and a de-
scription or explanation of current op-
erations, the implementation of new
policies and procedures, and future
plans for each function.
(c) The Chief Administrative Officer
shall fully cooperate with the appro-
priate offices and persons in the per-
formance of reviews and audits of fi-
nancial records and administrative op-
erations.
Chaplain
5. The Chaplain shall offer a prayer
at the commencement of each days
sitting of the House.
Office of Inspector General
6. (a) There is established an Office of
Inspector General.
(b) The Inspector General shall be ap-
pointed for a Congress by the Speaker,
the Majority Leader, and the Minority
Leader, acting jointly.
(c) Subject to the policy direction
and oversight of the Committee on
House Administration, the Inspector
General shall only
(1) provide audit, investigative, and
advisory services to the House and
joint entities in a manner consistent
with government-wide standards;
(2) inform the officers or other offi-
cials who are the subject of an audit
of the results of that audit and sug-
gesting appropriate curative actions;
(3) simultaneously notify the
Speaker, the Majority Leader, the
Minority Leader, and the chair and
ranking minority member of the
Committee on House Administration
in the case of any financial irregu-
larity discovered in the course of car-
rying out responsibilities under this
clause;
(4) simultaneously submit to the
Speaker, the Majority Leader, the
Minority Leader, and the chair and
ranking minority member of the
Committee on House Administration
a report of each audit conducted
under this clause; and
(5) report to the Committee on Eth-
ics information involving possible
violations by a Member, Delegate,
Resident Commissioner, officer, or
employee of the House of any rule of
the House or of any law applicable to
the performance of official duties or
the discharge of official responsibil-
ities that may require referral to the
appropriate Federal or State authori-
ties under clause 3(a)(3) of rule XI.
Office of the Historian
7. There is established an Office of
the Historian of the House of Rep-
resentatives. The Speaker shall ap-
point and set the annual rate of pay for
employees of the Office of the Histo-
rian.
Office of General Counsel
8. There is established an Office of
General Counsel for the purpose of pro-
viding legal assistance and representa-
tion to the House. Legal assistance and
representation shall be provided with-
out regard to political affiliation. The
Office of General Counsel shall func-
tion pursuant to the direction of the
Speaker, who shall consult with a Bi-
partisan Legal Advisory Group, which
shall include the majority and minor-
ity leaderships. The Speaker shall ap-
point and set the annual rate of pay for
employees of the Office of General
Counsel.
RULE III
THE MEMBERS, DELEGATES, AND
RESIDENT COMMISSIONER OF PUERTO
RICO
Voting
1. Every Member shall be present
within the Hall of the House during its
sittings, unless excused or necessarily
prevented, and shall vote on each ques-
tion put, unless having a direct per-
sonal or pecuniary interest in the
event of such question.
2. (a) A Member may not authorize
any other person to cast the vote of
such Member or record the presence of
such Member in the House or the Com-
mittee of the Whole House on the state
of the Union.
(b) No other person may cast a Mem-
bers vote or record a Members pres-
ence in the House or the Committee of
the Whole House on the state of the
Union.
Delegates and the Resident
Commissioner
3. (a) Each Delegate and the Resident
Commissioner shall be elected to serve
on standing committees in the same
manner as Members and shall possess
in such committees the same powers
and privileges as the other members of
the committee.
(b) The Delegates and the Resident
Commissioner may be appointed to any
select committee and to any con-
ference committee.
RULE IV
THE HALL OF THE HOUSE
Use and admittance
1. The Hall of the House shall be used
only for the legislative business of the
House and for caucus and conference
meetings of its Members, except when
the House agrees to take part in any
ceremonies to be observed therein.
2. (a) Only the following persons shall
be admitted to the Hall of the House or
rooms leading thereto:
(1) Members of Congress, Members-
elect, and contestants in election
cases during the pendency of their
cases on the floor.
(2) The Delegates and the Resident
Commissioner.
(3) The President and Vice Presi-
dent of the United States and their
private secretaries.
(4) Justices of the Supreme Court.
(5) Elected officers and minority
employees nominated as elected offi-
cers of the House.
(6) The Parliamentarian.
(7) Staff of committees when busi-
ness from their committee is under
consideration, and staff of the respec-
tive party leaderships when so as-
signed with the approval of the
Speaker.
(8) Not more than one person from
the staff of a Member, Delegate, or
Resident Commissioner when that
Member, Delegate, or Resident Com-
missioner has an amendment under
consideration (subject to clause 5).
(9) The Architect of the Capitol.
(10) The Librarian of Congress and
the assistant in charge of the Law Li-
brary.
(11) The Secretary and Sergeant-at-
Arms of the Senate.
(12) Heads of departments.
(13) Foreign ministers.
(14) Governors of States.
(15) Former Members, Delegates,
and Resident Commissioners; former
Parliamentarians of the House; and
former elected officers and minority
employees nominated as elected offi-
cers of the House (subject to clause
4).
(16) One attorney to accompany a
Member, Delegate, or Resident Com-
missioner who is the respondent in
an investigation undertaken by the
Committee on Ethics when a rec-
ommendation of that committee is
under consideration in the House.
(17) Such persons as have, by name,
received the thanks of Congress.
(b) The Speaker may not entertain a
unanimous consent request or a motion
to suspend this clause or clauses 1, 3, 4,
or 5.
3. (a) Except as provided in paragraph
(b), all persons not entitled to the
privilege of the floor during the session
shall be excluded at all times from the
Hall of the House and the cloakrooms.
(b) Until 15 minutes of the hour of
the meeting of the House, persons em-
ployed in its service, accredited mem-
bers of the press entitled to admission
to the press gallery, and other persons
Exhibit 2
JOHN A. BOEHNER
OHIO
SPEAKER
TO:
FROM:
DATE:
RE:
(!Congress of tbe Wntteb $tates
of
MEMORANDUM
WASHINGTON OFFICE:
H-232 U.S. CAPITOL BUILDING
WASHINGTON, DC 20515
(202) 225-0600
File j 1
Jo-Marie St. Martin, General Counsel/Chief of Legislative Operations l-1()
April16, 2012
Cooper-Harris, et al. v. United States, et al. , 12-cv-0887 (C.D. Cal.{-
On March 9, 2011, the Speaker met with the other four Members ofthe Bipartisan Legal
Advisory Group to consult on the issue of whether the Group should defend the constitutionality
of Section 3 of the Defense of Marriage Act ("DO MA") - which defines "marriage" and "spouse"
for purposes of federal law generally- after the President and Attorney General announced that
the Department of Justice no longer would do so. At that time, the Bipartisan Legal Advisory
Group decided, by a majority vote, that the Speaker should direct the House General Counsel to
defend the interests of the House in litigation in which the Department of Justice has ceased to
defend the constitutionality of Section 3 of DOMA, and the Speaker so directed the House
General CounseL Subsequently, the Bipartisan Legal Advisory Group sought, and was granted,
leave to intervene in a number of cases around the country in which DOMA Section 3 's
constitutionality was at issue.
On February 1, 2012, a complaint was filed in the case of Cooper-Harris, et al. v. United
States, et al. , No. 12-cv-0887 (C.D. Calif.). The Cooper-Harris plaintiffs challenge the
constitutionality on equal protection grounds ofDOMA Section 3, and 38 U.S.C. 101(3), (31),
which defines "surviving spouse" and "spouse" for purposes of Title 38 of the U.S.
Code. Thereafter, I, in my capacity as General Counsel to the Speaker, consulted with the staff
representatives of the other four Members of the Bipartisan Legal Advisory Group regarding the
Group's defense of Section 3 ofDOMA in cases in which that statute' s constitutionality has been
challenged and, in particular, whether to defend the constitutionality of 38 U.S.C. 101(3), (31) in
such cases. Those four representatives are Nicole Gustafson, Senior Policy Advisor to the
Majority Leader; Steve Pinkos, Policy Director and Counsel to the Majority Whip; Bernard Raimo
Jr. , Counsel to the Democratic Leader; and Keith Abouchar, Senior Policy Advisor to the
Democratic Whip. I, Ms. Gustafson, Mr. Pinkos, Mr. Raimo, and Mr. Abouchar have been the
staff representatives of our respective leaders to the Bipartisan Legal Advisory Group since the
beginning of the 112th Congress in January 2011.
Specifically, on Thursday, March 29, 2012, I spoke by telephone with Messrs. Raimo and
Abouchar who indicated that the Democratic Leader and Democratic Whip, respectively, did not
agree that the Bipartisan Legal Advisory Group should defend the constitutionality of 38 U.S.C.
101 (3), (31) (just as they had not agreed earlier that the Group should defend Section 3 of
DOMA). Earlier, I had discussed the same issue with Ms. Gustafson and Mr. Pinkos who
indicated that the Majority Leader and Majority Whip, respectively, concurred with the Speaker
that the Bipartisan Legal Advisory Group should defend the constitutionality of38 U.S.C.
101(3), (31).
Page 2
Memorandum to File
Cooper-Harris
April16, 2012
As a result of these consultations, a majority of the Bipartisan Legal Advisory Group
indicated that they favored the Group defending the constitutionality of38 U.S.C. 101(3), (31) in
cases in which that statute's constitutionality has been challenged, and I, on behalf of the Speaker,
so directed the House General Counsel on Thursday, March 29, 2012.
The consultation described in the preceding paragraph, while it is not the only manner in
which consultation may occur, is the method by which the Bipartisan Legal Advisory Group
routinely and customarily makes decisions. Accordingly, appropriate consultation preceded the
Bipartisan Legal Advisory Group's decisions to defend the constitutionality of both DOMA
Section 3 and 38 U.S.C. 101(3), (31).

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