12-3273 #24

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
Thurgood Marshall U.S. Courthouse 40 Foley Square, New York, NY 10007 Telephone: 212-857-8500
MOTION INFORMATION STATEMENT
Docket Number(s): _1_2_3_2_73____________________________ __________ _
Motion for: Recognition of Status as Party to the Appeal
Set forth below precise, complete statement of relief sought:
Pedersen v. Office of Personnel Management
The House seeks an order recognizing it as a party to this appeal.
MOVING pARTY: The Bipartisan Legal Advisory Group of the U.S. House of Representatives OPPOSING pARTY: JoAnne Pedersen (Please see addendum for additional opposing party)
0Plaintiff [{]Defendant
OAppellant/Petitioner OAppellee/Respondent
MOVING ATTORNEY: _H_._c_hn_s_to.:..p_he_r_B_art_o_lo_m_u_cc_i_________ _ OPPOSING ATTORNEY: _K_e_nn_e_th_J_._s_art_s_ch_i ___________ _
Bancroft PLLC
[name of attorney, with firm, address, phone number and e-mail]
Horton. Shields & Knox, P.C.
1919 M Street, N.W., Suite 470 90 Gillett Street
Washington, D.C. 20036 Hartford, CT 06105
202-234-0090 pclement@bancroftpllc.com 860-522-8338 kbartschi@hortonshieldsknox.com
Court-Judge/Agency appealed from: . .:._Jo_:n:..:.e:..:.s/_:S.:.::.D:..:..N:..:._:Y_.----------------------------------
Please check appropriate boxes:
Has movy.n;.potified opposing counsel (required by Local Rule 27.1):
[{JYesONo (explain): ____________ _
position on motion:
[{JUnopposed Gpposed [Joon't Know
Does opposing counsel intend to file a response:
0Yes[{]No Gon'tKnow
FOR EMERGENCY MOTIONS, MOTIONS FOR STAYS AND
INJUNCTIONS PENDING APPEAL:
Has request for relief been made below?
Has this relief been previously sought in this Court?
DYes 0No
DYes 0No
Requested return date and explanation of emergency: _________ _
Is oral argument on motion requested? DYes [{]No (requests for oral argument will not necessarily be granted)
Has argument date of appeal been set? DYes [{]No If yes, enter date:. ________________________ _
08/27/2012
Service by: D CM/ECF [{]Other [Attach proof of service]
Circuit address, NewCases@CA2.USCourts.gov.
ORDER
IT IS HEREBY ORDERED THAT the motion is GRANTED DENIED.
FOR THE COURT:
CATHERINE O'HAGAN WOLFE, Clerk of Court
Date:---------------------
By:
Form T-1080 (rev. 7-12)
Case: 12-3273 Document: 24 Page: 1 08/27/2012 704914 30
Addendum

Additional Opposing Party:
Office of Personnel Management

Additional Opposing Attorney:
Judson O. Littleton, Trial Attorney
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW
Washington, DC 20530
Telephone: (202) 305-8714
judson.o.littleton@usdoj.gov

CERTIFICATE OF SERVICE
I certify that on August 27, 2012, I served one copy of the foregoing Motion
of the Bipartisan Legal Advisory Group of the U.S. House of Representatives for
Recognition of Status as a Party to the Appeal by electronic mail to the Second
Circuit address, NewCases@CA2.USCourts.gov, and on the following by
electronic mail (.pdf format) and first-class mail, postage prepaid:
Karen L. Dowd
Kenneth J. Bartschi
HORTON, SHIELDS & KNOX, P.C.
90 Gillett Street
Hartford, CT 06105
kdowd@hortonshieldsknox.com
kbartschi@hortonshieldsknox.com

Gary D. Buseck
Mary L. Bonauto
Vickie L. Henry
Janson Wu
GAY & LESBIAN ADVOCATES & DEFENDERS
30 Winter Street, Suite 800
Boston, MA 02108
gbuseck@glad.org
mbonauto@glad.org
vhenry@glad.org
jwu@glad.org


Paul M. Smith
Luke C. Platzer
Matthew J. Dunne
Melissa Cox
JENNER & BLOCK
1099 New York Avenue, NW, Suite 900
Washington, DC 20001-4412
psmith@jenner.com
lplatzer@jenner.com
mdunne@jenner.com
mcox@jenner.com

David J. Nagle
SULLIVAN & WORCESTER LLP
One Post Office Square
Boston, MA 02109
dangle@sandw.com

Judson O. Littleton
UNITED STATES DEPARTMENT OF JUSTICE, CIVIL DIVISION
Federal Programs Branch

Helen L. Gilbert
Room 7228
950 Pennsylvania Avenue, NW
Helen.L.Gilbert@usdoj.gov

Sandra Slack Glover
UNITED STATES ATTORNEYS OFFICE, DISTRICT OF
CONNECTICUT
23rd Floor
157 Church Street
New Haven, CT 06510
sandra.glover@usdoj.gov


David Christopher Nelson
CONNECTICUT
450 Main Street
Hartford, CT 06103
David.C.Nelson@usdoj.gov

/s/ William Pittard
William Pittard


No. 12-3273
____________________

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
____________________

JOANNE PEDERSEN, et al.
Plaintiffs-Appellees,
v.
OFFICE OF PERSONNEL MANAGEMENT, et al.
Defendants-Appellants,
and

BIPARTISAN LEGAL ADVISORY GROUP
OF THE U.S. HOUSE OF REPRESENTATIVES,
Defendant.
____________________

UNOPPOSED MOTION OF THE BIPARTISAN LEGAL ADVISORY
GROUP OF THE U.S. HOUSE OF REPRESENTATIVES
FOR RECOGNITION OF STATUS AS A PARTY TO THE APPEAL
The Bipartisan Legal Advisory Group of the U.S. House of Representatives
(House) a party in the court below and the only party defending the
constitutionality of Section 3 of the Defense of Marriage Act against Plaintiffs-
Appellees equal-protection challenge hereby moves the Court to recognize the
House as a party to this appeal.
2

The House contacted counsel for Plaintiffs-Appellees and the Executive
Branch. Neither Plaintiffs-Appellees nor the Executive Branch opposes the relief
sought by this motion; both consent to the Houses participation in this appeal.
BACKGROUND
This case concerns the constitutionality of Section 3 of the Defense of
Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419 (1996) (DOMA), codified at
1 U.S.C. 7, which defines marriage and spouse for purposes of federal law.
Plaintiffs-Appellees, same-sex couples who have obtained marriage certificates
from various states, claim that DOMAs definition of marriage violates the
Constitutions guarantees of equal protection as to them.
As the Court is aware, it is the constitutional responsibility of the President
to take Care that the Laws be faithfully executed, U.S. Const. art. II, 3, and of
the United States Department of Justice (DOJ) in furtherance of that
responsibility to defend the constitutionality of duly-enacted federal laws when
they are challenged in court. Accordingly, prior to February 2011, DOJ repeatedly
defended the constitutionality of DOMA Section 3 against all constitutional
challenges.
In February 2011, however, DOJ abruptly reversed course. The Attorney
General publicly notified Congress of the Presidents and his conclusion that
DOMA Section 3, as applied to same-sex couples who are legally married under
3

state law, violates the equal protection component of the Fifth Amendment, and
their decision that, as a result, DOJ no longer would defend Section 3 in court
against equal protection challenges. Letter from Eric H. Holder, Jr., Atty Gen., to
the Honorable John A. Boehner, Speaker, U.S. House of Representatives at 1, 5
(Feb. 23, 2011) (Holder Letter), attached as Ex. 1.
1
The Attorney General,
however, recognized the role of the judiciary as the final arbiter of the
constitutional claims raised, and the need for adversarial presentation of the issues
to the judiciary, and so committed to providing Congress a full and fair
opportunity to participate in the litigation. Id. at 5, 6.
In response, the House determined to defend DOMA Section 3 in civil
actions in which that statutes constitutionality has been challenged. Specifically,
the Bipartisan Legal Advisory Group, through which the House articulates its
institutional litigation positions, and which directs the House General Counsel,

1
In so deciding, the Attorney General acknowledged, correctly, that (i) DOJ
has a longstanding practice of defending the constitutionality of duly-enacted
statutes if reasonable arguments can be made in their defense, Holder Letter at 5;
(ii) binding precedents of ten U.S. Circuit Courts of Appeals (actually eleven) had
rejected his conclusion that sexual orientation classifications are subject to a
heightened standard of scrutiny, and instead had held that rational-basis scrutiny is
appropriate for such classifications, id. at 3-4 nn.4-6; and (iii) reasonable
argument[s] for Section 3s constitutionality may be proffered under th[e] [rational
basis] standard, id. at 6. In short, the Attorney General effectively conceded that
the decision to abandon the defense of DOMA Section 3 was a sharp departure
from past precedent and was not predicated primarily on constitutional or other
legal considerations.
4

instructed the General Counsel to initiate a legal defense of [DOMA Section 3].
Press Release, Speaker of the House John Boehner, House Will Ensure DOMA
Constitutionality Is Determined by the Court (Mar. 9, 2011), available at
http://www.speaker.gov/News/DocumentSingle.aspx?DocumentID=228539.
While the House most often appears in judicial proceedings as amicus
curiae,
2
it also intervenes in judicial proceedings where appropriate. See, e.g.,
North v. Walsh, 656 F. Supp. 414, 415 n.1 (D.D.C. 1987); Am. Fedn of Govt
Emps. v. United States, 634 F. Supp. 336, 337 (D.D.C. 1986). In particular, the
House has intervened to defend the constitutionality of federal statutes when the
Department has abandoned its responsibility to do so.
3

2
See, e.g., Br. of Amicus Curiae the Bipartisan Legal Advisory Group of
the U.S. House of Representatives in Supp. of Petr, Renzi v. United States (U.S.
Dec. 2, 2011) (No. 11-557), 2011 WL 6019914; Dickerson v. United States, 530
U.S. 428, 430 n.* (2000); Raines v. Byrd, 521 U.S. 811, 818 n.2 (1997); Am.
Foreign Serv. Assn v. Garfinkel, 490 U.S. 153, 154 (1989); Morrison v. Olson,
487 U.S. 654, 659 (1988); Japan Whaling Assn v. Am. Cetacean Socy, 478 U.S.
221, 223 (1986); Helstoski v. Meanor, 442 U.S. 500, 501 (1979); United States v.
Helstoski, 442 U.S. 477, 478 (1979); United States v. Renzi, 651 F.3d 1012, 1015
(9th Cir. 2011); In re Grand Jury Subpoenas, 571 F.3d 1200 (D.C. Cir. 2009);
Fields v. Office of Eddie Bernice Johnson, 459 F.3d 1, 3 (D.C. Cir. 2006) (en
banc); Beverly Enters., Inc. v. Trump, 182 F.3d 183, 186 (3d Cir. 1999); United
States v. McDade, 28 F.3d 283, 286 (3d Cir. 1994); In re Search of the Rayburn
House Office Bldg., 432 F. Supp. 2d 100, 104-05 (D.D.C. 2006), revd sub nom.
United States v. Rayburn House Office Bldg., 497 F.3d 654 (D.C. Cir. 2007).
3
See, e.g., INS v. Chadha, 462 U.S. 919, 930 n.5 (1983); Adolph Coors Co.
v. Brady, 944 F.2d 1543, 1545 (10th Cir. 1991); In re Koerner, 800 F.2d 1358,
1360 (5th Cir. 1986); Synar v. United States, 626 F. Supp. 1374, 1378-79 (D.D.C.),
affd sub nom. Bowsher v. Synar, 478 U.S. 714 (1986); Ameron, Inc. v. U.S. Army
(Continued . . .)
5

With respect to its defense of DOMA, over the past twelve months, the
House has moved to intervene in fifteen cases, including this case, that present the
issue of DOMA Section 3s constitutionality. All fourteen federal courts that have
ruled to date on such House motions to intervene, including the district court
below, have permitted House intervention.
4

Corps of Engrs, 607 F. Supp. 962, 963 (D.N.J. 1985), affd, 809 F.2d 979 (3d Cir.
1986); Barnes v. Carmen 582 F. Supp. 163, 164 (D.D.C. 1984), revd sub nom.
Barnes v. Kline, 759 F.2d 21, 22 (D.C. Cir. 1985), revd on mootness grounds sub
nom. Burke v. Barnes, 479 U.S. 361, 362 (1987); In re Prod. Steel, Inc., 48 B.R.
841, 842 (M.D. Tenn. 1985); In re Moody, 46 B.R. 231, 233 (M.D.N.C. 1985); In
re Tom Carter Enters., Inc., 44 B.R. 605, 606 (C.D. Cal. 1984); In re Benny, 44
B.R. 581, 583 (N.D. Cal. 1984), affd in part & dismissed in part, 791 F.2d 712
(9th Cir. 1986).
4
See Minute Order, Pedersen v. U.S. Office of Pers. Mgmt., No. 3:10-cv-
01750 (D. Conn. May 27, 2011) (ECF No. 55); see also Order, Torres-Barragan v.
Holder, No. 10-55768 (9th Cir. Apr. 10, 2012) (ECF No. 56); Order of Ct.,
Massachusetts v. U.S. Dept of HHS, Nos. 10-2204, 10-2207, & 10-2214 (1st Cir.
June 16, 2011) (ECF No. 5558549); Order, Blesch v. Holder, No. 1:12-cv-01578
(E.D.N.Y. May 31, 2012); Minutes (In Chambers): Order, Cooper-Harris v. United
States, No. 2:12-cv-00887 (C.D. Cal. May 22, 2012); Electronic Order,
McLaughlin v. Panetta, No. 1:11-cv-11905 (D. Mass. May 16, 2012); Mem. Op. &
Order at 16-20, Revelis v. Napolitano, No. 1:11-cv-01991 (N.D. Ill. Jan. 5, 2012)
(ECF No. 33); Order, Cozen OConnor, P.C. v. Tobits, No. 2:11-cv-00045 (E.D.
Pa. Dec. 16, 2011) (ECF No. 82); Order, Bishop v. United States, No. 4:04-cv-
00848 (N.D. Okla. Aug. 5, 2011) (ECF No. 181); Order, Lui v. Holder, No. 2:11-
cv-01267 (C.D. Cal. July 13, 2011) (ECF No. 25); Order Granting Mot. of [the
House] to Intervene for a Limited Purpose, Dragovich v. U.S. Dept of the
Treasury, No. 4:10-cv-01564 (N.D. Cal. June 10, 2011) (ECF No. 88); Order
Granting the Mot. of the [House] to Intervene for a Limited Purpose, Golinski v.
U.S. Office of Pers. Mgmt., No. 3:10-cv-0257 (N.D. Cal. June 3, 2011) (ECF No.
116); Windsor v. United States, 797 F. Supp.2d 320, 323-24 (S.D.N.Y. 2011);
Stamp Order, Cardona v. Shinseki, No. 11-3083 (Vet. App. May 23, 2012).
6

PROCEDURAL HISTORY
The Houses Intervention in This Case, and the Current Appeal: Plaintiffs-
Appellees in this case are several same-sex couples who have obtained marriage
certificates from various states. They seek, among other things, declarations that
DOMA Section 3 is unconstitutional in various broad contexts, and corresponding
injunctions against its enforcement. See First Am. Compl. pp. 77-80 (Prayers for
Relief), Pedersen v. OPM, No. 3:10-cv-01750 (Jan. 14, 2011) (ECF No. 33).
Following the Attorney Generals public announcement in February 2011,
DOJ notified the district court that it no longer would defend the constitutionality
of DOMA Section 3 in this case. See Notice to Ct. at 1, Pedersen, No. 3:10-cv-
01750 (Feb. 25, 2011) (ECF No. 39). The district court then suspended all
deadlines in the case to permit Congress to intervene. Order, Pedersen, No. 3:10-
cv-01750 (Mar. 9, 2011) (ECF No. 43). The House then intervened, without
opposition from any party. See Mot. to Intervene for a Limited Purpose at 2,
Pedersen, No. 3:10-cv-01750 (Apr. 26, 2011) (ECF No. 48); Order, Pedersen, No.
3:10-cv-01750 (May 27, 2011) (ECF No. 55) (granting House motion to
intervene).
In July 2011, Plaintiffs-Appellees moved for summary judgment, see Mot.
for Summ. J., Pedersen, No. 3:10-cv-01750 (July 15, 2011) (ECF No. 60), and in
August 2011 the House moved to dismiss, see [House]s Mot. to Dismiss, No.
7

3:10-cv-01750 (Aug. 15, 2011) (ECF No. 80). DOJ aligned itself with Plaintiffs-
Appellees, as it has done in other cases, and filed a brief arguing that DOMA is
unconstitutional and indeed that the Congress that enacted DOMA many of
whose Members still serve did so out of animus. Defs Mem. of Law in Resp.
to Pls. Mot. for Summ. J. & [House]s Mot. to Dismiss at 9 n.1, 28-30, 34,
Pedersen, No. 3:10-cv-01750 (Sept. 14, 2011) (ECF No. 98). DOJ has filed
similar briefs attacking DOMAs constitutionality in other DOMA cases.
5
The
House was the only party to defend DOMAs constitutionality.
On July 31, 2012, the district court ruled, without oral argument, that
DOMA violates the equal protection principles incorporated in the Fifth
Amendment. Order at 104, Pedersen, No. 3:10-cv-01750 (ECF No. 116).

5
See, e.g., Br. for the United States, Windsor v. United States, Nos. 12-
2335, 12-2435 (2d Cir. Aug. 10, 2012) (ECF No. 120); Superseding Br. for the
U.S. Dept of HHS, Massachusetts v. U.S. Dept of HHS, Nos. 10-2204, 10-2207,
& 10-2214 (1st Cir. Sept. 22, 2011) (ECF No. 5582082); Mem. in Oppn to
[House]s Mot. to Dismiss Pls. Compl., Revelis v. Napolitano, No. 1:11-cv-01991
(N.D. Ill. Apr. 9, 2012) (ECF No. 50); Fed. Defs. Br. in Partial Supp. of Pls. Mot.
for Summ. J., Dragovich v. U.S. Dept of Treasury, No. 4:10-cv-01564 (N.D. Cal.
Jan. 19, 2012) (ECF No. 108); Br. of [DOJ] Regarding the Constitutionality of
Section 3 of DOMA, Cozen OConnor, P.C. v. Tobits, No. 2:11-cv-00045 (E.D.
Pa. Dec. 30, 2011) (ECF No. 97); Resp. of Defs. [DOJ] to [House]s Cross-Mot.
for Summ. J., Bishop v. United States, No. 4:04-cv-00848 (N.D. Okla. Nov. 18,
2011) (ECF No. 225); Defs. Oppn to [House]s Mot. to Dismiss, Lui v. Holder,
No. 2:11-cv-01267 (C.D. Cal. Sept. 2, 2011) (ECF No. 28); Defs. Br. in Oppn to
Mots. to Dismiss at 3-23, Golinski v. OPM, No. 3:10-cv-00257 (N.D. Cal. July 1,
2011) (ECF No. 145) (arguing in all of these briefs that Section 3 is subject to
heightened scrutiny and is unconstitutional under that standard).
8

Judgment was entered on August 2, 2012. See Judgment, Pedersen, No. 3:10-cv-
01750 (ECF No. 118). Fifteen days later, despite having obtained all the relief it
sought in the district court, DOJ filed a notice of appeal, see Notice of Appeal,
Pedersen, No. 3:10-cv-01750 (Aug. 17, 2012) (ECF No. 119). The House, as an
intervenor-defendant, is entitled to notice its own appeal, see, e.g., Stringfellow v.
Concerned Neighbors in Action, 480 U.S. 370, 375-76 (1987) (An intervenor,
whether by right or by permission, normally has the right to appeal an adverse final
judgment by a trial court.), which would be due by October 1, 2012. See 28
U.S.C. 2107(b). The House currently is considering whether to file its own
appeal.
The Need for the Instant Motion: DOJs appeal was docketed in this Court
on August 21, 2012. That same day, Plaintiffs-Appellees filed a Motion to
Expedite Appeal (ECF No. 9) and also a Petition for a Writ of Certiorari Before
Judgment in the United States Supreme Court, see Pet. for Writ of Cert. Before J.,
Pedersen v. OPM (S. Ct. Aug. 21, 2012) (No. 12-231), 2012 WL 3613467 (Cert.
Pet.). In their Motion to Expedite, Plaintiffs-Appellees named the House as the
opposing party. ECF No. 9 at 1. Plaintiffs-Appellees expressly requested that
the Houses merits brief in this case be filed by September 12, 2012. Mem. of L.
in Supp. of Mot. for Expedited Appeal at 3 (ECF No. 9). In their Cert. Petition,
Plaintiffs-Appellees listed the House as one of the Parties to the Proceeding and
9

referred to the House as the Intervenor-Appellant in the Court of Appeals. Cert.
Pet. at ii.
On August 22, 2012, personnel from this Courts Clerks Office contacted
counsel for the House, inquiring whether the House intended to file a response to
the motion to expedite. However, the Clerks Office personnel now have advised
the House that, because the House is not designated as a party in this case, it will
not be permitted to file documents with the Court unless the House receives such
status (or else files its own appeal and obtains consolidation of the two). Further
discussions between counsel for the House and the Clerks Office have made clear
that a motion such as this one is the appropriate way to clarify the Houses status
as a party to this appeal.
ARGUMENT
The House seeks an order of the Court recognizing the House as a party to
this appeal. The Supreme Court has long held that Congress is the proper party to
defend the validity of a statute when an agency of government agrees with
Plaintiffs-Appellees that the statute is inapplicable or unconstitutional. INS v.
Chadha, 462 U.S. 919, 940 (1983). And in this case, from the Attorney Generals
initial letter regarding DOJs abandonment of DOMAs defense, to the Houses
intervention in the court below, to Plaintiffs-Appellees filings in this appeal and
before the Supreme Court in this case, every party has contemplated that the
10

defense of DOMA would be undertaken by the House. But that is not possible if
the House is prevented from filing pleadings because the Clerk does not recognize
the House as a party to the appeal.
Consistent with the Supreme Courts holding in Chadha, the House was a
party to the proceedings and judgment below, having been granted intervention by
the district court. Indeed, the House is the only party in this case whose interests
are adverse to those of the other parties DOJ and Plaintiffs-Appellees all share
the position that DOMA is unconstitutional and that Plaintiffs-Appellees are
entitled to the relief they seek. DOJs purported appeal of the district courts
judgment certainly is not an expression of disagreement with it. In this Court and
the Ninth Circuit, DOJ has submitted merits briefs in other DOMA cases arguing
that DOMA is unconstitutional and defending district court judgments to that
effect. See Br. for the U.S., Windsor v. United States, Nos. 12-2335 & 12-2435 (2d
Cir. Aug. 10, 2012) (ECF No. 120); Br. for the Office of Pers. Mgmt., et al.,
Golinski v. OPM, Nos. 12-15388 & 12-15409 (9th Cir. July 3, 2012) (ECF No. 82).
It has taken the same position before the Supreme Court. E.g., Pet. for a Writ of
Cert., U.S. Dept of HHS v. Massachusetts (S. Ct. July 3, 2012) (No. 12-15), 2012
WL 2586937. The instant appeal, then, is merely DOJs attempt to obtain this
Courts affirmance of the judgment below. It makes no sense for the Court to
11

proceed with an appeal without the participation of the only party to the case that
opposes the appellant, and the relief the appellant seeks from this Court.
The House urges the Court to rule promptly on this unopposed motion. As
noted above, Plaintiffs-Appellees moved on August 21, 2012, to expedite this
appeal, and earlier today they asked the Court to shorten the Houses time to
respond to that motion from Tuesday, September 4, 2012, to Wednesday, August
29, 2012. See Letter to Clerk (Aug. 27, 2012) (ECF No. 21).
6

CONCLUSION
The Court should enter an order permitting the House to file documents on
the docket as a party to this appeal.
Respectfully submitted,
/s/ H. Christopher Bartolomucci
Paul D. Clement
H. Christopher Bartolomucci
Nicholas J. Nelson

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

6
Because the House cannot yet use the ECF system to file in this case,
attached as Ex. 2 is the Houses response to Plaintiffs-Appellees August 27, 2012
letter (ECF No. 21).
12

Counsel for the Bipartisan Legal Advisory
Group of the U.S. House of Representatives
7

Of Counsel:

Kerry W. Kircher, General Counsel
William Pittard, Deputy General Counsel
Christine Davenport, Senior Assistant Counsel
Todd B. Tatelman, Assistant Counsel
Mary Beth Walker, Assistant Counsel

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

August 27, 2012

7
The Bipartisan Legal Advisory Group, which speaks for the House in
litigation matters, currently is comprised of the Honorable John A. Boehner,
Speaker of the House, the Honorable Eric Cantor, Majority Leader, the Honorable
Kevin McCarthy, Majority Whip, the Honorable Nancy Pelosi, Democratic Leader,
and the Honorable Steny H. Hoyer, Democratic Whip. The Democratic Leader
and the Democratic Whip have declined to support the position taken by the Group
on the merits of DOMA Section 3s constitutionality in this case.

CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing with the Clerk of the
Court for the United States Court of Appeals for the Second Circuit by electronic
mail to the Second Circuit address, NewCases@CA2.USCourts.gov, and on the
following by electronic mail (.pdf format) and first-class mail, postage prepaid:
Karen L. Dowd
Kenneth J. Bartschi
HORTON, SHIELDS & KNOX, P.C.
90 Gillett Street
Hartford, CT 06105
kdowd@hortonshieldsknox.com
kbartschi@hortonshieldsknox.com

Gary D. Buseck
Mary L. Bonauto
Vickie L. Henry
Janson Wu
GAY & LESBIAN ADVOCATES & DEFENDERS
30 Winter Street, Suite 800
Boston, MA 02108
gbuseck@glad.org
mbonauto@glad.org
vhenry@glad.org
jwu@glad.org


Paul M. Smith
Luke C. Platzer
Matthew J. Dunne
Melissa Cox
JENNER & BLOCK
1099 New York Avenue, NW, Suite 900
Washington, DC 20001-4412
psmith@jenner.com
lplatzer@jenner.com
mdunne@jenner.com
mcox@jenner.com

David J. Nagle
SULLIVAN & WORCESTER LLP
One Post Office Square
Boston, MA 02109
dangle@sandw.com

Judson O. Littleton
Federal Programs Branch

Helen L. Gilbert
Room 7228
950 Pennsylvania Avenue, NW
Helen.L.Gilbert@usdoj.gov

Sandra Slack Glover
CONNECTICUT
23rd Floor
157 Church Street
New Haven, CT 06510
sandra.glover@usdoj.gov


David Christopher Nelson
CONNECTICUT
450 Main Street
Hartford, CT 06103
David.C.Nelson@usdoj.gov

/s/ William Pittard
William Pittard

Exhibit 1
of t4t 1\ttorntt!
Bas m. Ql. 205:30
The Honorable John A. Boehner
Speaker
U.S. House of Representatives
February 23, 2011
Re: Defense of Marriage Act
Dear Mr. Speaker:
After careful consideration, including review of a recommendation from me, the
President of the United States has made the determination that Section 3 ofthe Defense of
Marriage Act ("DOMA"), 1 U.S.C. 7,
1
as applied to same-sex couples who are legally married
under state law, violates the equal protection component of the Fifth Amendment. Pursuant to
28 U.S.C. 530D, I am writing to advise you of the Executive Branch's determination and to
inform you of the steps the Department will take in two pending DOMA cases to implement that
determination.
While the Department has previously defended DOMA against legal challenges involving
legally married same-sex couples, recent lawsuits that challenge the constitutionality of DOMA
Section 3 have caused the President and the Department to conduct a new examination of the
defense ofthis provision. In particular, in November 2011, plaintiffs filed two new lawsuits
challenging the constitutionality of Section 3 ofDOMA in jurisdictions without precedent on
whether sexual-orientation classifications are subject to rational basis review or whether they
must satisfy some form ofheightened scrutiny. Windsor v. United States, No. 1:10-cv-8435
(S.D.N.Y.); Pedersen v. OPM, No. 3:10-cv-1750 (D. Conn.). Previously, the Administration has
defended Section 3 in jurisdictions where circuit courts have already held that classifications
1
DOMA Section 3 states: "In determining the meaning of any Act of Congress, or of any ruling, regulation, or
interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means
only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a
person of the opposite sex who is a husband or a wife."
based on sexual orientation are subject to rational basis review, and it has advanced arguments to
defend DOMA Section 3 under the binding standard that has applied in those cases.
2
These new lawsuits, by contrast, will require the Department to take an affirmative
position on the level of scrutiny that should be applied to DOMA Section 3 in a circuit without
binding precedent on the issue. As described more fully below, the President and I have
concluded that classifications based on sexual orientation warrant heightened scrutiny and that,
as applied to same-sex couples legally married under state law, Section 3 of DOMA is
unconstitutional.
Standard of Review
The Supreme Court has yet to rule on the appropriate level of scrutiny for classifications
based on sexual orientation. It has, however, rendered a number of decisions that set forth the
criteria that should inform this and any other judgment as to whether heightened scrutiny applies:
( 1) whether the group in question has suffered a history of discrimination; (2) whether
individuals "exhibit obvious, immutable, or distinguishing characteristics that define them as a
discrete group"; (3) whether the group is a minority or is politically powerless; and (4) whether
the characteristics distinguishing the group have little relation to legitimate policy objectives or
to an individual's "ability to perform or contribute to society." See Bowen v. Gilliard, 483 U.S.
587,602-03 (1987); City ofCleburne v. Cleburne Living Ctr., 473 U.S. 432,441-42 (1985).
Each of these factors counsels in favor of being suspicious of classifications based on
sexual orientation. First and most importantly, there is, regrettably, a significant history of
purposeful discrimination against gay and lesbian people, by governmental as well as private
entities, based on prejudice and stereotypes that continue to have ramifications today. Indeed,
until very recently, states have "demean[ed] the[] existence" of gays and lesbians "by making
their private sexual conduct a crime." Lawrence v. Texas, 539 U.S. 558, 578 (2003).
3
2
See, e.g., Dragovich v. U.S. Department of the Treasury, 2011 WL 175502 (N.D. Cal. Jan. 18, 2011 ); Gill v. Office
of Personnel Management, 699 F. Supp. 2d 374 (D. Mass. 2010); Smelt v. County of Orange, 374 F. Supp. 2d 861,
880 (C.D. Cal.,2005); Wilson v. Ake, 354 F.Supp.2d 1298, 1308 (M.D. Fla. 2005); In re Kandu, 315 B.R. 123, 145
(Bkrtcy. W.D. Wash. 2004); In re Levenson, 587 F.3d 925, 931 (9th Cir. E.D.R. Plan Administrative Ruling 2009).
3
While significant, that history of discrimination is different in some respects from the discrimination that burdened
African-Americans and women. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200,216 (1995)(classifications
based on race "must be viewed in light of the historical fact that the central purpose of the Fourteenth Amendment
was to eliminate racial discrimination emanating from official sources in the States," and "[t]his strong policy
renders racial classifications 'constitutionally suspect."'); United States v. Virginia, 518 U.S. 515,531 (1996)
(observing that '"our Nation has had a long and unfortunate history of sex discrimination'" and pointing out the
denial of the right to vote to women until 1920). In the case of sexual orientation, some of the discrimination has
been based on the incorrect belief that sexual orientation is a behavioral characteristic that can be changed or subject
to moral approbation. Cf Cleburne, 473 U.S. at 441 (heightened scrutiny may be warranted for characteristics
"beyond the individual's control" and that "very likely reflect outmoded notions of the relative capabilities of' the
group at issue); Boy Scouts of America v. Dale, 530 U.S. 640 (2000) (Stevens, J., dissenting) ("Unfavorable opinions
about homosexuals 'have ancient roots."' (quoting Bowers, 478 U.S. at 192)).
2
Second, while sexual orientation carries no visible badge, a growing scientific consensus
accepts that sexual orientation is a characteristic that is immutable, see Richard A. Posner, Sex
and Reason 101 (1992); it is undoubtedly unfair to require sexual orientation to be hidden from
view to avoid discrimination, see Don't Ask, Don't Tell Repeal Act of2010, Pub. L. No. 111-
321, 124 Stat. 3515 (2010).
Third, the adoption of laws like those at issue in Romer v. Evans, 51 7 U.S. 620 ( 1996),
and Lawrence, the longstanding ban on gays and lesbians in the military, and the absence of
federal protection for employment discrimination on the basis of sexual orientation show the
group to have limited political power and "ability to attract the [favorable] attention of the
lawmakers." Cleburne, 473 U.S. at 445. And. while the enactment of the Matthew Shepard Act
and pending repeal of Don't Ask, Don't Tell indicate that the political process is not closed
entirely to gay and lesbian people, that is not the standard by which the Court has judged
"political powerlessness." Indeed, when the Court ruled that gender-based classifications were
subject to heightened scrutiny, women already had won major political victories such as the
Nineteenth Amendment (right to vote) and protection under Title VII (employment
discrimination).
Finally, there is a growing acknowledgment that sexual orientation "bears no relation to
ability to perform or contribute to society." Frontiero v. Richardson, 411 U.S. 677, 686 (1973)
(plurality). Recent evolutions in legislation (including the pending repeal of Don't Ask, Don't
Tell), in community practices and attitudes, in case law (including the Supreme Court's holdings
in Lawrence and Romer), and in social science regarding sexual orientation all make clear that
sexual orientation is not a characteristic that generally bears on legitimate policy objectives. See,
e.g., Statement by the President on the Don't Ask, Don't Tell Repeal Act of2010 ("It is time to
recognize that sacrifice, valor and integrity are no more defined by sexual orientation than they
are by race or gender, religion or creed.")
To be sure, there is substantial circuit court authority applying rational basis review to
sexual-orientation classifications. We have carefully examined each of those decisions. Many
of them reason only that if consensual same-sex sodomy may be criminalized under Bowers v.
Hardwick, then it follows that no heightened review is appropriate a line of reasoning that does
not survive the overruling of Bowers in Lawrence v. Texas, 538 U.S. 558 (2003).
4
Others rely on
claims regarding "procreational responsibility" that the Department has disavowed already in
litigation as unreasonable, or claims regarding the immutability of sexual orientation that we do
not believe can be reconciled with more recent social science understandings.
5
And none
4
See Equality Foundation v. City ofCincinnati, 54 F.3d 26I, 266-67 & n. 2. (6th Cir. I995); Steffan v. Perry, 4I
F.3d 677, 685 (D.C. Cir. I994); Woodward v. United States, 871 F.2d I 068, I 076 (Fed. Cir. 1989); Ben-Shalom v.
Marsh, 88I F.2d 454, 464 (7th Cir. 1989); Padula v. Webster, 822 F.2d 97, I03 (D.C. Cir. I987).
5
See, e.g, Lofton v. Secretary ofthe Dep't ofChildren & Family Servs., 358 F.3d 804, 818 (lith Cir. 2004)
(discussing child-rearing rationale); High Tech Gays v. Defense Indust. Sec. Clearance Office, 895 F.2d 563, 571
(9th Cir. 1990) (discussing immutability). As noted, this Administration has already disavowed in litigation the
3
engages in an examination of all the factors that the Supreme Court has identified as relevant to a
decision about the appropriate level of scrutiny. Finally, many of the more recent decisions have
relied on the fact that the Supreme Court has not recognized that gays and lesbians constitute a
suspect class or the fact that the Court has applied rational basis review in its most recent
decisions addressing classifications based on sexual orientation, Lawrence and Romer.
6
But
neither of those decisions reached, let alone resolved, the level of scrutiny issue because in both
the Court concluded that the laws could not even survive the more deferential rational basis
standard.
Application to Section 3 of DOMA
In reviewing a legislative classification under heightened scrutiny, the government must
establish that the classification is "substantially related to an important government objective."
Clark v. Jeter, 486 U.S. 456, 461 (1988). Under heightened scrutiny, "a tenable justification
must describe actual state purposes, not rationalizations for actions in fact differently grounded."
United States v. Virginia, 518 U.S. 515, 535-36 (1996). "The justification must be genuine, not
hypothesized or invented post hoc in response to litigation." !d. at 533.
In other words, under heightened scrutiny, the United States cannot defend Section 3 by
advancing hypothetical rationales, independent of the legislative record, as it has done in circuits
where precedent mandates application of rational basis review. Instead, the United States can
defend Section 3 only by invoking Congress' actual justifications for the law.
Moreover, the legislative record underlying DOMA's passage contains discussion and
debate that undermines any defense under heightened scrutiny. The record contains numerous
expressions reflecting moral disapproval of gays and lesbians and their intimate and family
relationships - precisely the kind of stereotype-based thinking and animus the Equal Protection
Clause is designed to guard against.
7
See Cleburne, 473 U.S. at 448 ("mere negative attitudes, or
argument that DOMA serves a governmental interest in "responsible procreation and child-rearing." H.R. Rep. No.
I 04-664, at 13. As the Department has explained in numerous filings, since the enactment of DOMA, many leading
medical, psychological, and social welfare organizations have concluded, based on numerous studies, that children
raised by gay and lesbian parents are as likely to be well-adjusted as children raised by heterosexual parents.
6
See Cook v. Gates, 528 F.3d 42, 61 (1st Cir. 2008); Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 866 (8th Cir.
2006); Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004); Veney v. Wyche, 293 F.3d 726, 732 (4th Cir. 2002);
Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati, 128 F.3d 289,292-94 (6th Cir. 1997).
7
See, e.g., H.R. Rep. at 15-16 (judgment [opposing same-sex marriage] entails both moral disapproval of
homosexuality and a moral conviction that heterosexuality better comports with traditional (especially Judeo-
Christian) morality"); id. at 16 (same-sex marriage "legitimates a public union, a legal status that most people ...
feel ought to be illegitimate" and "put[s] a stamp of approval ... on a union that many people ... think is
immoral"); id. at 15 ("Civil laws that permit only heterosexual marriage reflect and honor a collective moral
judgment about human sexuality"); id. (reasons behind heterosexual marriage-procreation and child-rearing-are
"in accord with nature and hence have a moral component"); id. at 31 (favorably citing the holding in Bowers that an
"anti-sodomy law served the rational purpose of expressing the presumed belief ... that homosexual sodomy is
immoral and unacceptable"); id. at 17 n.56 (favorably citing statement in dissenting opinion in Romer that "[t]his
Court has no business ... pronouncing that 'animosity' toward homosexuality is evil").
4
----------------------------------------
fear" are not permissible bases for discriminatory treatment); see also Romer, 517 U.S. at 635
(rejecting rationale that law was supported by "the liberties of landlords or employers who have
personal or religious objections to homosexuality"); Palmore v. Sidotti, 466 U.S. 429, 433 (1984)
("Private biases may be outside the reach of the law, but the law cannot, directly or indirectly,
give them effect.").
Application to Second Circuit Cases
After careful consideration, including a review of my recommendation, the President has
concluded that given a number of factors, including a documented history of discrimination,
classifications based on sexual orientation should be subject to a heightened standard of scrutiny.
The President has also concluded that Section 3 of DOMA, as applied to legally married same-
sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion,
the President has instructed the Department not to defend the statute in Windsor and Pedersen,
now pending in the Southern District of New York and the District of Connecticut. I concur in
this determination.
Notwithstanding this determination, the President has informed me that Section 3 will
continue to be enforced by the Executive Branch. To that end, the President has instructed
Executive agencies to continue to comply with Section 3 of DOMA, consistent with the
Executive's obligation to take care that the laws be faithfully executed, unless and until Congress
repeals Section 3 or the judicial branch renders a definitive verdict against the law's
constitutionality. This course of action respects the actions of the prior Congress that enacted
DOMA, and it recognizes the judiciary as the final arbiter of the constitutional claims raised.
As you know, the Department has a longstanding practice of defending the
constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense, a
practice that accords the respect appropriately due to a coequal branch of government. However,
the Department in the past has declined to defend statutes despite the availability of
professionally responsible arguments, in part because the Department does not consider every
plausible argument to be a "reasonable" one. "[D]ifferent cases can raise very different issues
with respect to statutes of doubtful constitutional validity," and thus there are "a variety of
factors that bear on whether the Department will defend the constitutionality of a statute." Letter
to Hon. Orrin G. Hatch from Assistant Attorney General Andrew Fois at 7 (Mar. 22, 1996). This
is the rare case where the proper course is to forgo the defense of this statute. Moreover, the
Department has declined to defend a statute "in cases in which it is manifest that the President
has concluded that the statute is unconstitutional," as is the case here. Seth P. Waxman,
Defending Congress, 79 N.C. L.Rev. 1073, 1083 (2001).
In light of the foregoing, I will instruct the Department's lawyers to immediately inform
the district courts in Windsor and Pedersen of the Executive Branch's view that heightened
scrutiny is the appropriate standard of review and that, consistent with that standard, Section 3 of
5
DOMA may not be constitutionally applied to same-sex couples whose marriages are legally
recognized under state law. If asked by the district courts in the Second Circuit for the position
ofthe United States in the event those courts determine that the applicable standard is rational
basis, the Department will state that, consistent with the position it has taken in prior cases, a
reasonable argument for Section 3's constitutionality may be proffered under that permissive
standard. Our attorneys will also notifY the courts of our interest in providing Congress a full
and fair opportunity to participate in the litigation in those cases. We will remain parties to the
case and continue to represent the interests of the United States throughout the litigation.
Furthermore, pursuant to the President's instructions, and upon further notification to
Congress, I will instruct Department attorneys to advise courts in other pending DOMA litigation
of the President's and my conclusions that a heightened standard should apply, that Section 3 is
unconstitutional under that standard and that the Department will cease defense of Section 3.
A motion to dismiss in the Windsor and Pedersen cases would be due on March 11, 2011.
Please do not hesitate to contact us if you have any questions.
6
Sincerely yours,
Eric H. Holder, Jr.
Attorney General
Exhibit 2
1919 M Street, N.W. Suite 470 Washington D.C. 20036

Telephone 202.234.0090 www.bancroftpllc.com Facsimile 202.234.2806
August 27, 2012

Catherine OHagan Wolfe, Clerk of the Court
U.S. Court of Appeals for the Second Circuit
Thurgood Marshall U.S. Courthouse
40 Foley Square
New York, NY 10007

Re: Pedersen v. Office of Personnel Management, et al. and the Bipartisan Legal
Advisory Group of the U.S. House of Representatives, No. 12-3273 (2d Cir.)
Dear Ms. OHagan Wolfe:
I write on behalf of the Bipartisan Legal Advisory Group of the U.S. House of
Representatives (House) the intervenor-defendant below in response to Plaintiffs-
Appellees counsels August 27, 2012 letter (ECF No. 21) (August 27 Letter). That letter
purports to supplement Plaintiffs-Appellees Motion for Expedited Appeal (Aug. 21, 2012) (ECF
No. 9) (Motion to Expedite); in reality, it seeks additional relief from the Court in the form of
an order shortening, from September 4, 2012, to August 29, 2012, the time for the House (and
the Department of Justice) to respond to the Motion to Expedite. The Court should not consider
this request because it is not in the form of a motion, as required by Rule 27(a)(1) of the Federal
Rules of Appellate Procedure and Local Rule 27.1(a)(1). If the Court does consider Plaintiffs-
Appellees request, the Court should deny that request for the following reasons.
1. Clerks Office personnel advised counsel for the House last week that, because the
House is not designated as a party in this case, the House will not be permitted to file documents
with the Court unless the House receives such status. The House today has filed a Motion . . . for
Recognition of Status as Party to the Appeal (Aug. 27, 2012) (Motion for Recognition). Until
the Motion for Recognition is granted, it appears the House will not be permitted by the Clerk to
respond to the Motion to Expedite at all, let alone two days hence. Assuming the Motion for
Recognition is granted promptly, the House intends to respond to the Motion to Expedite by
September 4, 2012, consistent with Rule 27(a)(3)(A) of the Federal Rules of Appellate
Procedure.
2. The underlying appeal by the Executive Branch parties is improper because the
Executive Branch parties prevailed below and, accordingly, lack standing to appeal. The House
intends to raise this issue by way of a motion to dismiss once the Houses Motion for
Recognition is granted. The Court should not rush to judgment on the Motion to Expedite until it
Catherine OHagan Wolfe, Clerk of the Court
August 27, 2012
Page 2 of 2

rules on the antecedent question of the legitimacy of the Executive Branch parties appeal.

3. Nothing in Plaintiffs-Appellees August 27 Letter suggests any legitimate reason for
requiring the House (and the Department) to respond to the Motion to Expedite on such an
accelerated schedule. On the other hand, that proposed accelerated schedule would work a
severe hardship on the House which is currently working on, and must file by Friday, August 31,
2012, substantial briefs in four other cases that, like this one, raise the issue of whether Section 3
of the Defense of Marriage Act, 1 U.S.C. 7, comports with the equal protection component of
the Fifth Amendments Due Process Clause: (i) response to plaintiff-appellees Pet. for Writ of
Cert. Before J., Windsor v. United States, No. 12-63 (S. Ct. July 16, 2012), 2012 WL 2904038;
(ii) response to Executive Branch parties Pet. for a Writ of Cert., U.S. Dept of HHS v.
Massachusetts, No. 12-15 (S. Ct. July 3, 2012), 2012 WL 2586937; (iii) response to Executive
Branch parties Pet. for Writ of Cert. Before J., Office of Pers. Mgmt. v. Golinski, No. 12-16 (S.
Ct. July 3, 2012), 2012 WL 2586938; and (iv) a merits brief inCardona v. Shinseki, No. 11-3083
(Vet. Ct. App.).

Respectfully submitted,
/s/ H. Christopher Bartolomucci
H. Christopher Bartolomucci
Counsel for the Bipartisan Legal Advisory
Group of the U.S. House of Representatives

cc: Gary D. Buseck, Esq.
Paul M. Smith, Esq.
Karen L. Dowd, Esq.
David J. Nagle, Esq.
Judson O. Littleton, Esq.
Helen L. Gilbert, Esq.
Sandra Slack Glover, Esq.


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UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

1919 M Street, N.W. Suite 470 Washington D.C. 20036

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