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No. 12-2335(L)
No. 12-2435(Con)
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
EDITH SCHLAIN WINDSOR, IN HER OFFICIAL CAPACITY AS EXECUTOR OF THE ESTATE OF THEA CLARA SPYER Plaintiff-Appellee, v. UNITED STATES OF AMERICA, Defendant-Appellant, and BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES, Intervenor-Defendant-Appellant. On Appeal from the United States District Court for the Southern District of New York REPLY BRIEF FOR DEFENDANT-APPELLANT THE BIPARTISAN LEGAL ADVISORY GROUP OF THE UNITED STATES HOUSE OF REPRESENTATIVES 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 UNITED STATES HOUSE OF REPRESENTATIVES 219 Cannon House Office Building Washington, D.C. 20515 (202) 225-9700 September 14, 2012 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 Counsel for IntervenorDefendant-Appellant the Bipartisan Legal Advisory Group of the United States House of Representatives

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TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................................................... ii INTRODUCTION .....................................................................................................1 I. II. III. Certification to the New York Court of Appeals Is Appropriate. ...................3 Baker v. Nelson Forecloses Ms. Windsors Claims. .......................................4 Rational-Basis Review Applies. ......................................................................6 1. 2. 3. 4. 5. IV. Political Power ......................................................................................8 Relevance to Interests the State Has the Authority to Implement ..............................................................................................9 Mutability ............................................................................................10 History of Discrimination....................................................................12 Rational-Basis Review Applies............................................................14

Federal Interests in Uniformity, Fiscal Prudence, and Caution Fully Support DOMA. ............................................................................................15 1. 2. 3. Uniformity ...........................................................................................16 Fiscal Prudence...................................................................................18 Caution and Preserving Sovereignty ..................................................20

V.

DOMA Furthers Federal Interests in Responsible Childrearing. ..................23 1. 2. 3. Subsidizing the Begetting and Raising of Children ............................25 Encouraging the Raising of Children by Their Own Biological Mothers and Fathers .........................................................26 Encouraging Childrearing by Both a Mother and a Father ...............28

CONCLUSION ........................................................................................................30

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TABLE OF AUTHORITIES Cases Adarand Constructors, Inc. v. Pea, 515 U.S. 200 (1995) ............................ 5, 6, 14 Baker v. Nelson, 409 U.S. 810 (1972) .......................................................................4 Bowen v. Owens, 476 U.S. 340 (1986) ....................................................................18 City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432 (1985) .................9, 11 Commr v. Estate of Bosch, 387 U.S. 456 (1967)......................................................3 Cook v. Gates, 528 F.3d 42 (1st Cir. 2008) ...............................................................7 Craig v. Boren, 429 U.S. 190 (1976) .......................................................................26 FCC v. Beach Communcns, Inc., 508 U.S. 307 (1993) ..........................................20 Godfrey v. Spano, 920 N.E.2d 328 (N.Y. 2009) ........................................................3 Green Party of Conn. v. Garfield, 616 F.3d 213 (2d Cir. 2010) ...............................5 Hicks v. Miranda, 422 U.S. 332 (1975) .....................................................................5 High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.3d 563 (9th Cir. 1990).....................................................................................................12 In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004) ............................................6 Lawrence v. Texas, 539 U.S. 558 (2003) .............................................................6, 13 Lewis v. N.Y. State Dept of Civil Serv., 60 A.D.3d 216 (N.Y. App. Div. 2009), affd on other grounds, 920 N.E.2d 328 ........................4 Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012) .......................................................24 Smelt v. Cnty. of Orange, 374 F. Supp. 2d 861 (C.D. Cal. 2005) .............................5 United States v. Carolene Prods. Co., 304 U.S. 144 (1938) .....................................8 Vill. of Belle Terre v. Boraas, 416 U.S. 1 (1974) ....................................................24 Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483 (1955) ...............................17 ii

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Witt v. Dept of Air Force, 527 F.3d 806 (9th Cir. 2008) ..........................................7 Statute 1 U.S.C. 7 ..............................................................................................................23 Other Authorities George Blum et al., Federal Constitutional and Statutory Requirements; Full Faith and CreditScope and Application, 24A Am. Jur. 2d Divorce & Separation 1074 .............................................................................17 Lisa M. Diamond, Development of Sexual Orientation Among Adolescent and Young Women, 34 Dev. Psych. 1085 (1998) ...............................................11 Romualdo P. Eclavea, Incestuous Marriages, 52 Am. Jur. 2d Marriage 74......................................................................................................................17 Jennifer Epstein, Democrats Release Platform, Politico (Sept. 3, 2012), available at http://www.politico.com/politico44/2012/09/democratsrelease-platform-134253.html...............................................................................9 Linda D. Garnets & Letitia Anne Peplau, A New Paradigm for Womens Sexual Orientation: Implications for Therapy, 24 Women & Therapy 111 (2001) ...........................................................................................................11 H.R. Rep. No. 104-664 (1996), reprinted in 1996 U.S.C.C.A.N. 2905 ..................20 Robert Lerner & Althea K. Nagai, No Basis: What the Studies Dont Tell Us About Same-Sex Parenting (2001), available at http://www.marriagewatch.org/publications/nobasis.pdf ...................................27 Loren Marks, Same-Sex Parenting and Childrens Outcomes: A Closer Examination of the American Psychological Associations Brief on Lesbian and Gay Parenting, 41 Soc. Sci. Res. 735 (2012) ................................27 William Meezan & Jonathan Rauch, Gay Marriage, Same-Sex Parenting, and Americas Children, 15 Future of Children 97 (2005) ................................28 Aff. of Steven Lowell Nock, Halpern v. Atty. Gen. of Canada (2001), no. 684/00 (Can. Ont. Sup. Ct. J.), available at http://www.marriagewatch.org/Law/cases/Canada/ontario/halpern/ aff_nock.pdf ........................................................................................................27 iii

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Mark Regnerus, How Different Are the Adult Children of Parents Who Have Same-Sex Relationships?, 41Soc. Sci. Res. 752 (2012), available at http://www.sciencedirect.com/science/article/pii/ S0049089X12000610 .........................................................................................27 Michael J. Rosenfeld, Nontraditional Families and Childhood Progress Through School, 47 Demography 755 (2010), available at http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3000058/?tool= pmcentrez ............................................................................................................27

iv

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INTRODUCTION The House respectfully submits this Reply to the arguments raised by Ms. Windsor.1 Ms. Windsors arguments cannot prevail, for five key reasons. First, Ms. Windsor lacks standing to bring this suit unless New York law recognized foreign same-sex marriage certificates by February 2009 at the latest. But despite Ms. Windsors suggestion that this state-law question is free from doubt, the New York Court of Appeals expressly reserved that very question in 2009. This Court should certify that sensitive question of state law to the New York Court of Appeals. Second, the Supreme Court held in Baker v. Nelson that the traditional definition of marriage comports with equal protection, and has not revisited that holding. While the Supreme Court does not view itself as bound by its own summary dispositions, lower federal courts do not have the same latitude. Baker remains binding precedent unless and until the Supreme Court takes up the matter again (which, of course, it likely will do in a matter of months).

The Bipartisan Legal Advisory Group 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 Democratic Whip decline to support the Groups position on the merits of DOMA Section 3s constitutionality.

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Third, the Supreme Court has admonished lower courts to be cautious about recognizing new suspect or quasi-suspect classes and has avoided recognizing sexual orientation as such. Eleven other Circuits have held that strict or heightened scrutiny does not apply to such classifications. Contrary to Ms. Windsors suggestions that those precedents are relics of the ancien regime, a majority of circuits have held or reaffirmed that rational basis review applies postLawrence. And the case for heightened scrutiny actually is deteriorating over time as every day brings additional news of the rapidly increasing political power of gays and gay-rights groups. Fourth, DOMA rationally promotes the federal interests in uniformity, fiscal prudence, caution, and preserving each sovereigns ability to address this sensitive question for itself. While it certainly is rational for some states to expand the definition of marriage to same-sex couples, it is equally rational for jurisdictions to decline to expand the definition of marriage beyond the traditional one. DOMA preserves the ability of each sovereign to make that decision independently by preserving the traditional definition for federal-law purposes (and federal-law purposes alone). Fifth, providing benefits to opposite-sex married couples plainly furthers the governmental interest in responsible childrearing in a way, or to a degree, that

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benefiting same-sex couples would not. DOMA therefore easily satisfies rational basis review and equal protection. I. Certification to the New York Court of Appeals Is Appropriate. It is undisputed that Ms. Windsor lacks standing unless New York recognized her Canadian marriage certificate by, at the latest, February 2009well before New York itself issued marriage certificates to same-sex couples. See House Br. 17-18, ECF No. 121; Windsor Br. 55-58, ECF No. 239. It is also undisputed that the New York Court of Appeals expressly reserved that question in Godfrey v. Spano, 920 N.E.2d 328, 337 (N.Y. 2009). And it is undisputed that, although the district court could not certify that question to New Yorks highest court, this Court can. Ms. Windsor opposes certification for two reasons. First, she points to the same lower-court New York decisions from which the district court inferred that New York law recognized foreign same-sex marriage certificates before February 2009. Windsor Br. 55-56. Such decisions, however, are not controlling on federal courts where the highest court of the State has not spoken on the point. Commr v. Estate of Bosch, 387 U.S. 456, 465 (1967) (quotations omitted). Here, not only has the New York Court of Appeals not spoken, it expressly reserved the question even after many of the lower-court decisions to which Ms. Windsor cites. Indeed, in Godfrey it reviewed one of the 3

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very decisions that Ms. Windsor invokes, in which the appellate division had held in the same-sex couples favor on the recognition issue. See Lewis v. N.Y. State Dept of Civil Serv., 60 A.D.3d 216 (N.Y. App. Div. 2009), affd on other grounds, 920 N.E.2d 328; Windsor Br. 55. If this conclusion were as clearly correct as Ms. Windsor suggests, the Godfrey court could easily have affirmed on that basis. Instead, it deliberately affirmed on a different groundindicating, at a minimum, that the Court of Appeals regards this as an important and open question. Ms. Windsor also suggests that only she will ever be affected by this issue. Windsor Br. 58. But there surely are dozens, if not hundreds, of same-sex couples in New York who obtained out-of-state marriage certificates before mid-2011. Whether they were eligible for marital benefits before that time is a question likely to recur. Beyond mere numbers, questions concerning both the definition of marriage and the recognition of foreign judgments are sensitive matters properly resolved in the state court systemespecially when their outcome will determine a plaintiffs standing to challenge a federal statute. Certification is the only proper course. II. Baker v. Nelson Forecloses Ms. Windsors Claims. The Supreme Court in Baker v. Nelson, 409 U.S. 810 (1972), held that the traditional definition of marriage passes equal protection review. The summary affirmance in Baker was indeed a holding and no mere denial of certiorari. Ms. 4

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Windsor offers no persuasive explanation of why Baker is not controlling here. She points out that the Supreme Court does not view itself as bound by its summary dispositions for stare decisis purposes, Windsor Br. 52, but lower courts are not similarly positioned. Instead, the Supreme Court has emphasized that lower courts are bound by summary decisions by [the Supreme] Court until such time as the [Supreme] Court informs them that they are not. Hicks v. Miranda, 422 U.S. 332, 344-45 (1975) (quotation marks, parentheses, and citations omitted). And this Courts observation that summary dispositions provide little guidance to the Supreme Courts reasoning or rationale, Green Party of Conn. v. Garfield, 616 F.3d 213, 225 (2d Cir. 2010), does not make the direct holding of Baker or other summary dispositions any less binding. Ms. Windsor suggests that even though the state marriage definition in Baker was valid, DOMA could still be invalid because it is a federal law. Windsor Br. 53-54; see DOJ Br. 13 n.3, ECF No. 120. But she fails to grapple with the Supreme Courts admonition that equal protection requirements for the state and federal governments are precisely the same. Adarand Constructors, Inc. v. Pea, 515 U.S. 200, 217 (1995). Most of the authorities that Ms. Windsor cites, see Windsor Br. 52, make the same crucial oversightand none of them

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properly addresses Adarand or its implications. 2 Since equal protections demands of the federal and state governments are exactly the same, it defies reason to argue that the same definition of marriage could be valid when used by states but invalid when used by Congress for federal-law purposes only. Ms. Windsor also maintains that the Supreme Courts jurisprudence with respect to sexual orientation has changed dramatically since Baker. Windsor Br. 54. But the Supreme Court has never cast doubt on Baker. On the contrary, in Lawrence v. Texas, 539 U.S. 558 (2003), the Court expressly stated that it was not holding that the government must give formal recognition to any relationship that homosexual persons seek to enter. Id. at 578; see also id. at 585 (OConnor, J., concurring) (stating that preserving the traditional institution of marriage is a rational basis). Unless and until the Supreme Court reconsiders Baker, equal protection challenges to DOMA must fail. III. Rational-Basis Review Applies. Even apart from Baker, the resolution of this case is straightforward: DOMA is subject toand easily passesdeferential rational-basis review. The Ms. Windsors final two cases make different errors. Smelt v. County of Orange asked the wrong questionwhether the questions presented in the Baker jurisdictional statement would still be viewed by the [modern] Supreme Court as unsubstantial. 374 F. Supp. 2d 861, 873 (C.D. Cal. 2005); but see Hicks, 422 U.S. at 344-45. And In re Kandu erroneously regarded the Fifth Amendment equal protection inquiry as different from the Fourteenth Amendment one. 315 B.R. 123, 137 (Bankr. W.D. Wash. 2004); but see Adarand, 515 U.S. at 217. 6
2

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Supreme Court has declined to apply anything more than rational-basis review to sexual-orientation classifications and strongly cautioned against recognizing new suspect or quasi-suspect classes. And eleven other Courts of Appeals unanimously reject strict or heightened scrutiny for such classifications. See House Br. 24-27. Ms. Windsor rather breezily dismisses this wall of precedent with the quite incorrect claim that [a]lmost every decision cited by BLAG [on the standard of review] explicitly relied on Bowers v. Hardwick. Windsor Br. 18; see also DOJ Br. 33-34. She is wrong. In fact, eight of the 14 Court of Appeals rational-basis cases cited by the House were decided after Lawrence overturned Bowers in 2003. See House Br. 25-26. Moreover, the First and Ninth Circuits have expressly held that Lawrence does not bar rational-basis review for sexual-orientation classifications. See Cook v. Gates, 528 F.3d 42, 61 (1st Cir. 2008) (rational-basis review applies, and Lawrence does not alter this conclusion); Witt v. Dept of Air Force, 527 F.3d 806, 821 (9th Cir. 2008) (Circuit precedent requiring rationalbasis review was not disturbed by Lawrence, which declined to address equal protection). No Court of Appeals has disagreed. As the House has explained, and contrary to Ms. Windsors contention, a number of Courts of Appeals have considered factors identified by the Supreme Court as relevant to suspect-class

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status, and found that sexual orientation does not qualify. See House Br. 27, 2930. There is no support in any Supreme Court or Circuit precedent for applying heightened scrutiny here. Examining the relevant factors only confirms that point. 1. Political Power

The Houses opening brief provides a small sample of the evidence of the crescendoing political power of gay-and-lesbian-rights groups, and notes that courts have long found homosexual persons sufficiently powerful that special equal-protection treatment is unwarranted. Id. at 27-29. Ms. Windsors attempt to dismiss the political-power criterion as unimportant to the suspect-classification analysisfor which she cites only a district-court and a state-court case, see Windsor Br. 19-20, 20 n.12is well off the mark. Far from being a marginal consideration, the possibility for curtail[ment of] the operation of those political processes ordinarily to be relied upon to protect minorities is the core rationale for and sine qua non of heightened equal-protection review. United States v. Carolene Prods. Co., 304 U.S. 144, 153 n.4 (1938). When a minority group can access the levers of political power, there simply is no need for judicial intervention in the ordinary workings of democracy. Ms. Windsor claims that that the remarkable political gains achieved and power amassed by gay-and-lesbian-rights groups are not enough (and the 8

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unanimous contrary circuit precedent is erroneous) because they are insufficient to prevent unfavorable outcomes. Windsor Br. 29; see also DOJ Br. 28-30. But the test does not ask whether the group is omnipotent or never disappointed, but only whether it has no ability to attract the attention of the lawmakers. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 445 (1985). The Houses opening brief demonstrated that gay-and-lesbian interest groups satisfy this criterion beyond any doubt. See House Br. 27. Of course, also strongly indicative of the political power of gays and lesbians is the Executive Branchs willingness to attack DOMA in courts nationwide. And, since the filing of the Houses opening brief, yet another important indicator of the remarkable rise of the political power of such groups has emerged: The 2012 Democratic Party platform supports same-sex marriage. See Jennifer Epstein, Democrats Release Platform, Politico (Sept. 3, 2012), available at http://www.politico.com/politico44/ 2012/09/democrats-release-platform-134253.html. When a major political party supports same-sex marriage in a presidential election cycle, it cannot be said that gays and lesbians lack political power or cannot attract the attention of lawmakers. 2. Relevance to Interests the State Has the Authority to Implement

Ms. Windsor maintains that an individuals ability to be a judge, a doctor, or a software programmer is clearly not affected by being gay or lesbian. Windsor Br. 23. But DOMA addresses none of those things. More relevantly, 9

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Ms. Windsor does not and cannot dispute that sexual orientation relates to a couples ability to be biological parents. Nor does she contend that bearing and raising children is irrelevant to government interests. 3 Faced with this difficulty, Ms. Windsor attempts to change the legal test, so as to require suspect-class status unless sexual orientation somehow impair[s] a persons overall ability to contribute to society. Windsor Br. 24 n.14 (emphasis added). But that is not the test. 3. Mutability

Ms. Windsor does not dispute that sexual orientation, unlike suspect classifications recognized by the Supreme Court, is defined by reference to conduct. Nor does she squarely address the serious scientific evidence regarding (1) our lack of knowledge of the origins of sexual orientation, (2) the fluidity of sexual orientation experienced by many people, (3) the surprisingly substantial minorities of gay men and lesbians who report having experienced an element of choice regarding their sexual orientation, and (4) the inherent difficulty in even

This also distinguishes DOMA from prior discrimination against gay and lesbian people, some of which, as DOJ notes, did not rest[] on their ability to contribute to society. DOJ Br. 31. 10

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defining who the class of gay and lesbian people actually are. See House Br. 29-32. 4 Instead, Ms. Windsor suggests that the class of gays and lesbians is determined by self-identifications that typically are not second-guessed by others. Windsor Br. 26. But that of course is not the testthe fact that some people may be identified or choose to identify as members of a class has not prevented the Supreme Court from finding it too large and amorphous for quasi-suspect status. Cleburne, 473 U.S. at 445. Moreover, Ms. Windsor does not respond to the reality that, while the suspect characteristics identified by the Supreme Court bear little correspondence to a persons conduct and indeed often generate unjustified stereotypes about conduct, sexual orientation is defined by a persons inclinations As to mutability, Ms. Windsors affiant Prof. Lisa Diamond believes that, although many people experience fluidity in which sex they are attracted to over their lifetimes, a persons capacity to experience homosexual attractions is an immutable characteristic for equal protection purposes even during periods of attraction to the opposite sex. JA A-964 (emphasis added); see Windsor Br. 25 n.16. Needless to say, the Court should not recognize a quasi-suspect class based on such an idiosyncratic definition of sexual orientation. Prof. Diamonds disagreement with the House about the legal implications of her research, see Windsor Br. 9, evidently is based solely on this definitional dispute which only highlights the difficulty in defining any sexual-orientation-based class. One of Ms. Windsors expert witnesses apparently was using a different definition when she cited Prof. Diamonds research as demonstrating that multiple changes in sexual orientation are possible for women. Linda D. Garnets & Letitia Anne Peplau, A New Paradigm for Womens Sexual Orientation: Implications for Therapy, 24 Women & Therapy 111, 116 (2001) (citing Lisa M. Diamond, Development of Sexual Orientation Among Adolescent and Young Women, 34 Dev. Psych. 1085 (1998)). 11
4

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toward conduct. This alone makes it markedly different from any recognized suspect classification and unsuited for such status, as other Courts of Appeals have recognized. See House Br. 29-30. Lacking hard data about mutability, Ms. Windsor invites the court to abandon that metric and substitute an inquiry into whether a characteristic is fundamental to ones identity. Windsor Br. 26. But, in addition to being wholly unadministrable, that is simply a different test from that authorized by the Supreme Court.5 Something can be fundamental yet mutable (political party affiliation), or immutable but not fundamental (height). They are simply not substitutes. 4. History of Discrimination

After narrating instances of twentieth-century discrimination against homosexual persons (as does DOJ), Ms. Windsor attempts to explain away her own experts observations that such discrimination was short-lived and solely a product of the twentieth century. Windsor Br. 22. She suggests that what was

As DOJs brief reflects, the fundamental to ones identity test goes to whether a characteristic is immutable for statutory asylum purposes, not equal protection purposes. See DOJ Br. 25-26. Despite DOJs suggestion otherwise, the two manifestly are not the same. Indeed, the Ninth Circuit expressly heldbefore its Hernandez-Montiel asylum decision cited by DOJthat for equal-protection purposes [h]omosexuality is not an immutable characteristic. High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.3d 563, 573 (9th Cir. 1990) (emphasis added). 12

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short-lived was the conceptualiz[ation] of discrimination in terms of status or identity as opposed to conduct, while laws that discriminated against such conduct are older. Id. (citation omitted). This is wrong on two levels. First, as the Supreme Court noted in Lawrence, pre-twentieth-century law did not target homosexual conduct as a discrete category. 539 U.S. at 569.6 Second, and more fundamentally, Ms. Windsor does not explain why what her own expert describes as the relatively short lifespan of identity-based (as opposed to conduct-based) discrimination is not a significant difference between sexual orientation and the recognized suspect and quasi-suspect classifications (which have little to do with conduct). This does not mean that homosexual persons have not suffered discrimination; they have. But so have a number of classes that the Supreme Court has declined to regard as suspect, such as the mentally handicapped and the poor. And the history of sexual-orientation discrimination remains significantly different from that based on suspect classifications, and does not warrant its inclusion among them.
6

Indeed, Ms. Windsor appears to admit that older disapproval of certain sexual conduct was not disapproval of homosexual orientation generally. Windsor Br. 22 n.13. This refutes DOJs attempted contention that Lawrence casts no doubt on the duration and scope of discrimination against gay and lesbian people writ large, DOJ Br. 16 n.4DOJ cannot plausibly contend that special equal protection concerns are triggered by societys unwitting burdening of a class that it was not aware existed. 13

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5.

Rational-Basis Review Applies.

Ms. Windsor candidly admits that [t]he Supreme Court has stated that it applies a single rational basis standard in all of its cases. Windsor Br. 31. But she then puzzlingly suggests that the invention of a more searching form of [supposedly rational-basis] review in certain circumstances by some lower courts, including the district court here, is an equally valid approach. Id. at 32. This refutes itself: If the Supreme Court and the lower courts differ on a question of law, the question cannot be answered in two ways. Id. at 31. Instead, the Supreme Courts interpretation prevails. That means regular, deferential rationalbasis review applies. See House Br. 34-36. Ms. Windsor also maintains, with little explanation, that DOMAs intrusion into an area of traditional state concern is another reason for courts to apply a more searching form of rational basis review. Windsor Br. 35. But there is not a shred of support for the strange notion that defining terms in federal law is an area of traditional state concern in our constitutional order. See House Br. 35 n.13. Moreover, the idea that the equal-protection guarantee exists to safeguard states rights gets things backwards. [T]he Fifth and Fourteenth Amendments to the Constitution protect persons, not groups, Adarand, 515 U.S. at 227, and the Fourteenth Amendment protects against state action.

14

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IV.

Federal Interests in Uniformity, Fiscal Prudence, and Caution Fully Support DOMA. As the House has explained, there are numerous rational bases for DOMA.

At least three of them uniquely implicate the federal government: (1) Ensuring nationwide uniformity in substantive eligibility criteria for federal marital benefits, (2) preserving the federal fisc, and (3) allowing each sovereign to make its own choice about whether to expand the traditional definition to include same-sex couples, while adopting the cautious approach for federal law purposes. See House Br. 39-48. Ms. Windsor dismisses these interests as merely restat[ing] what DOMA does. Windsor Br. 30. But the fact that DOMA furthers these interests is hardly a strike against it. Moreover, Ms. Windsors dismissal of these interests ignores the unique environment in which Congress was legislating. Until 1996, there was no need for Congress to evaluate considerations of uniformity or the fiscal impact of recognizing same-sex marriage because every state uniformly employed the traditional definition. The decision of the Hawaii Supreme Court to recognize same-sex marriage forced Congress to confront whether Hawaiis decision should govern for federal-law purposes and for other states via full faith and credit principles. Congress decided that each sovereignthe fifty states and the federal governmentshould be able to make this decision for itself. And when it came to the federal governments own decision for federal law purposes, Congress chose to 15

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retain the traditional definition as the uniform rule of federal law. While it would have been rational for Congress to expand the traditional definition to include same-sex couples who had many but not all the characteristics of traditional married couples, maintaining the traditional definition for federal law purposes was also rational and rationally advanced federal interests in uniformity, preserving the fisc and past legislative judgments and proceeding cautiously. Those uniquely federal interests are more than sufficient to satisfy rational basis review. 1. Uniformity

Ms. Windsor does not deny that the federal government has a legitimate interest in having uniform, nationwide benefits-eligibility criteria. She instead argues that (i) DOMA does not further that interest because federal law still incorporates some other varying details of states marital-recognition laws, and (ii) DOMA does not create uniformity because it declines to incorporate some statelaw marital-status determinations. Both arguments miss the mark and ignore the deferential nature of rationalbasis review. Ms. Windsor claims that because state marriage requirements supposedly var[y] widely from state to state, Congress may not plausibly further uniformity by establishing a nationwide rule only for same-sex marriages. Windsor Br. 41. As examples of these variations, however, she offers only differing state rules regarding recognition of first-cousin marriages and of 16

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extralegal divorces. Id. at 43. But such minor variations have long existed and do not raise nearly the strong feelings on both sides of the debate as the more fundamental question whether the traditional definition will be expanded to include same-sex couples.7 Congress could rationally defer to those minor variations while insisting that each state and the federal government have an opportunity to decide the same-sex marriage issue for its own purposes, and that the federal rule be uniform. Indeed, a hallmark of rational basis review is that it allows a legislature to select one phase of one field and apply a remedy there, neglecting the others. Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 489 (1955). Nor can Ms. Windsor plausibly contend it was irrational for Congress to prefer uniform substantive eligibility criteria for federal marital benefits for samesex couples over uniform deference to varying state criteria. See Windsor Br. 41-43. From the federal governments perspective, it makes perfect sense to focus more on treating a same-sex couple in Michigan the same as a same-sex couple in New York, rather than treating two couples recognized as married by New York the same. While the latter uniformity is of natural concern to New York, the

This is especially true because, unlike with same-sex marriages, even states that prohibit certain other kinds of marriages (or divorces) typically recognize them when lawfully entered in other states. E.g., Romualdo P. Eclavea, Incestuous Marriages, 52 Am. Jur. 2d Marriage 74; George Blum et al., Federal Constitutional and Statutory Requirements; Full Faith and CreditScope and Application, 24A Am. Jur. 2d Divorce & Separation 1074. 17

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former uniformity is of natural concern to the federal sovereign. In all events, on rational-basis review, if uniformity is a legitimate government interest (as it surely is), what kind of uniformity to pursue plainly is a choice for Congress, not Ms. Windsor or the courts. 2. Fiscal Prudence

Ms. Windsor refuses to concede either that saving money is a legitimate state interest, or that limiting marriage eligibility actually saves money. Windsor Br. 38-40. Instead, she argues it would be irrational to save money by withdrawing existing marital-benefit eligibility from an arbitrary class of couples. Id. at 39. But that is not what DOMA does. Instead, Congress confronted the reality of how to accommodate statutes that had always been understood to provide special benefits (or burdens) to married couples under the traditional definition to the possibility of some states broadening the definition. A decision to preserve the traditional definition both to save money and to avoid uncertain and unpredictable effects on some federal programs was perfectly rational. No further justification is required in order to save money in this way, as the Supreme Court has confirmed. See House Br. 44-45 (citing Bowen v. Owens, 476 U.S. 340, 348 (1986)). Ms. Windsor also purports not to believe that same-sex couples as a class would receive a net financial benefit from being treated as married under federal 18

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law. Instead, she cites a brief report by the Congressional Budget Office, which claims that treating same-sex couples as married under federal law would result in so many of them becoming ineligible for federal means-tested benefits (after the couples incomes were combined) that it would result in a net benefit to the Treasury, even after the resultant tax-revenue decrease. Windsor Br. 40. This report appears to make the critical, but highly dubious, assumption that same-sex couples would ignore this net reduction in federal benefits in deciding whether to marry. If, more realistically, same-sex couples who stand to save on taxes would marry more frequently than those who would lose federal benefits, then Congress concern about the federal fisc would be fully justified. Moreover, whatever the net impact on the federal fisc, Congress could rationally act to avoid uncertain and unpredictable effects on the federal budget under which some agencies would incur unexpected deficits while others would enjoy unexpected windfalls. See House Br. 45. Ms. Windsor says nothing to negate this rational basis. Ms. Windsor also contends that any attempt to justify DOMA as a costsaving measure is plainly not grounded in rational speculation [because] no meaningful effort was made to ascertain [DOMAs] fiscal impact. Windsor Br. 40 (citation and quotation marks omitted; second alteration in original). Leaving aside the unreasonableness of requiring an extensive study of the fiscal impact of a provision that maintained the status quo, Ms. Windsors argument confuses 19

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rational-basis review and APA review. Congress is not required to assemble a vast record and ground its decision in substantial record evidence. To the contrary, the Supreme Court has expressly said that the rational speculation necessary to uphold a law may be unsupported by evidence or empirical data, and the absence of legislative facts explaining the distinction on the record has no significance in rational-basis analysis. FCC v. Beach Communcns, Inc., 508 U.S. 307, 315 (1993) (quotation marks, brackets, and citation omitted). And, far from not car[ing] about DOMAs fiscal impact as Ms. Windsor maintains, Windsor Br. 40, Congress expressly relied on it as a rationale for the law, based on its reasonable assumption that recognizing marriages generally involves a net transfer of wealth from the government to the married couples. See H.R. Rep. No. 104-664, at 18 (1996), reprinted in 1996 U.S.C.C.A.N. 2905 (concluding that DOMA would preserve scarce government resources). 3. Caution and Preserving Sovereignty

As the House has explained, Congress in enacting DOMA could reasonably have been concerned about the almost complete lack of experience with the medium- and long-term effects of redefining marriage, one of our most important social institutions, to include same-sex couples. Congress therefore could have found such a redefinition to be premature, at best, and declined to incorporate it into federal law. See House Br. 45-48. Indeed, it is perfectly consistent with 20

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basic principles of our federalist structure to allow the states to serve as laboratories of democracy, while the federal government preserves the traditional rule for its own purposes. Ms. Windsor suggests that DOMA was not cautious because Congress did not study its effects as exhaustively as she would prefer, Windsor Br. 14, because it does not include a sunset provision, Windsor Br. 38, and because it supposedly changed the previous rule of deference to state law, id. But, once again, Congress does not need to conduct an exhaustive study either to act rationally to preserve the status quo or to survive rational basis review. Likewise, Congress can act rationally with or without a sunset provision, which is most often associated with a controversial new measure, not a law designed to preserve the status quo. Finally, Ms. Windsor simply assumes the long-established rule of deference. In reality, until 1996 every state adopted the traditional definition, which was also reflected expressly in some federal statutes. See House Br. 6. Thus, until 1996, Congress had no occasion to consider whether to defer to disparate state definitions of samesex marriage or adopt its own uniform federal definition. It was Hawaiis decision in 1996 that prompted the need to choose. Congress rationally chose to preserve the traditional definition and pursue a uniform rule, rather than adopt whatever rule each state adopted as the federal rule for those citizens. In doing so, Congress did not abandon any long tradition of deference. Rather, it simply responded to a new 21

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dynamic in a perfectly rational way that respected the states ability to choose their own definition, while preserving the traditional rule for federal-law purposes. Ms. Windsor also contends that caution is not a legitimate government interest at all, but merely an argument that Congress was entitled to discriminate because it had previously done so. Windsor Br. 37. But that argument assumes something that even Ms. Windsor has not arguednamely, that any jurisdiction that maintains the traditional definition engages in unlawful discrimination and always has. Having not made that argument, Ms. Windsor is in no position to dismiss a federal decision to preserve the traditional federal approach while states pursue their roles as laboratories of democracy as nothing more than the perpetuation of unlawful discrimination. Congress also was concerned in enacting DOMA to maintain the federal governments ability, as a separate sovereign, to employ its own definition of marriage for purposes of its own law. See House Br. 46. Ms. Windsor contends that DOMA instead interferes with state marital determinations by declining to adopt them for federal purposes. Windsor Br. 50. But as the House has explained, this contention would make sense only if state lawmakers had responsibility for defining terms in federal law. House Br. 47-48. Under the Constitution and the Supremacy Clause, however, Congress gets to define

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marriage for federal purposes. Congress exercise of that power in DOMA was perfectly legitimate. V. DOMA Furthers Federal Interests in Responsible Childrearing. Ms. Windsors discussion of DOMAs relationship to childrearing demonstrates that, despite the title of one of the sections of her brief, see Windsor Br. 11, she misunderstands What DOMA Is And What It Doesas did the district court. By defining marriage to mean[] only a legal union between one man and one woman, and spouse as only a person of the opposite sex, 1 U.S.C. 7, Congress plainly was reaffirming what marriage is for federal purposes, and to whom Congress is extending benefits when it uses that word, as well as clarifying what marriage is not for federal purposes. Yet Ms. Windsor repeatedly grounds her arguments against DOMA on her insistence that it has absolutely nothing to do with opposite-sex marriages. Windsor Br. 11, 30, 44, 47. This is inconsistent not only with DOMAs plain text and effects, but also with the very nature of Ms. Windsors equal protection claim. Her complaint is that DOMA, as well as federal law in general, offers marital benefits to opposite-sex couples but not same-sex couples. As the House has explained, what must have a rational basis is this treatment of one group one way, and another group another. See House Br. 50-51. DOMA does that no differently from a law that conferred special benefits on 23

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couples meeting the traditional definition of marriage for the first time. If the decision to extend benefits to one group and not the other is grounded in a rational basis such that one group presents distinct concerns, there is simply no constitutional obligation to extend benefits further. 8 If government were required to recognize a given kind of relationship as marriage unless doing so would actually harm pre-existing marriages, as Ms. Windsor argues, e.g., Windsor Br. 30-31, then almost every relationship would have to be recognized as marriage. And that is why the Supreme Court has required that legislatures be left ample room to draw lines defining which relationships satisfy the legal definition of family, Vill. of Belle Terre v. Boraas, 416 U.S. 1, 8 & n.5 (1974)or, as here, marriage. When examined in this light, each of the Houses responsible-procreation rational bases fully support DOMA.

Ms. Windsor concedes that this is the proper analysis when federal law benefits one group but not another. Windsor Br. 47. Quoting Perry v. Brown, 671 F.3d 1052, 1087 (9th Cir. 2012), however, she claims that withdrawing previouslygranted marital recognition for same-sex couples cannot be justified based simply on the different government interests implicated by them. Windsor Br. 46-47. But far from being precisely analogous to the situation in Perry, see id. at 46, DOMA presents the opposite situation. It does not withdraw benefits from anyone but instead simply continues the preexisting eligibility criteria. In fact, in Perry the Ninth Circuit expressly recognized that it was not addressing this type of decision not to add to a legislative scheme a group that [the legislature reasonably finds] unnecessary to the purposes of that scheme. 671 F.3d at 1087. 24

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1.

Subsidizing the Begetting and Raising of Children

The most straightforward connection between DOMA and childrearing is a simple matter of demographics: The vast majority of children are raised by two opposite-sex parents, or are conceived by heterosexual persons who Congress could rationally desire to encourage to marry. And opposite-sex couples are far more likely to raise children than are same-sex couples. See House Br. 51-53. Moreover, only opposite-sex couples have reason to structure their relationships around the possibility of children even if they are not currently planning on having them. Id. Thus, it was rational for Congress, concerned with childrearing, to focus on opposite-sex couples in assigning federal marital benefits and duties. The question is not, as Ms. Windsor suggests, whether DOMA prohibits same-sex couples from obtaining state marriage certificates or raising children, or whether denying benefits to married same-sex couples would have any impact on whether straight couples marry or have children. Windsor Br. 45. Instead, it is whether Congress rationally could decide that government interests in responsible childrearing would be furthered more by offering federal marital benefits and duties to opposite-sex couples than by offering them to same-sex couples. Human biology, along with the aggregate childrearing choices of both kinds of couples, makes clear that the answer is yes. No further rational basis for DOMA is required. 25

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2.

Encouraging the Raising of Children by Their Own Biological Mothers and Fathers

Ms. Windsor does not, because she cannot, deny the existence of our bedrock cultural assumption that, when possible, children should be raised by their own biological mother and father. But she does try to persuade the Court that this axiom of American society and family law reflects irrational prejudice, claiming that decades of peer-reviewed scientific research show that the results of parenting by same-sex couples are indistinguishable from those of parenting by heterosexual parents, and relying on citations to two lower state-court decisions. Windsor Br. 48. But as the House has noted, proving broad sociological propositions by statistics is a dubious business, Craig v. Boren, 429 U.S. 190, 204 (1976), and both the Eleventh Circuit and the New York Court of Appeals have rejected contentions like Ms. Windsors. See House Br. 54 n.26. The reasons are straightforward: The research she relies on is comprised almost entirely of preliminary studies thatto list only a few of their shortcomingsuse unrepresentative samples too small to generalize their results beyond the actual subjects being studied; 9 study primarily children of highly-motivated, wealthy, and

Ms. Windsors own expert acknowledges this. See App. A-400. One of the few studies to attempt to overcome the difficulty in finding statistically meaningful numbers of children raised from infancy by homosexual couples did so by including children with a parent who had a homosexual relationship regardless of 26

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well-educated same-sex parents; do not use comparison groups of children raised by their married biological parents; 10 and almost completely omit any study of children raised by gay male couples.11 In the words of two same-sex marriage

its duration, after significant efforts to locate the former kind of children failed and it found that children raised in intact heterosexual marriages had significantly better outcomes. See Mark Regnerus, How Different Are the Adult Children of Parents Who Have Same-Sex Relationships?, 41Soc. Sci. Res. 752, 766 (2012), available at http://www.sciencedirect.com/science/article/pii/ S0049089X12000610. Ms. Windsor complains about this comparison. Windsor Br. 49. But it was used in an attempt to avoid the very sampling problem exhibited by the tiny, statistically inadequate studies (invoked by Ms. Windsor) that do attempt to focus on the former class of children. Although Ms. Windsor elsewhere stresses the supposed need for expert witnesses to present scientific evidence, she attacks the published Regnerus study by relying on a blog posting, Windsor Br. 49 n.23the lack of scientific rigor of which is apparent simply from reading it.
10

Many of these studies were oriented toward use in child-custody disputes between biological parents, one of whom had taken up a homosexual relationship. Ms. Windsors complaints about the Regnerus studys comparison group, Windsor Br. 49, only highlight the comparison-group deficiencies in her own research. For a sampling of the literature critiquing or recognizing the shortcomings in these studies, see, e.g., Loren Marks, Same-Sex Parenting and Childrens Outcomes: A Closer Examination of the American Psychological Associations Brief on Lesbian and Gay Parenting, 41 Soc. Sci. Res. 735 (2012); Robert Lerner & Althea K. Nagai, No Basis: What the Studies Dont Tell Us About Same-Sex Parenting (2001), available at http://www.marriagewatch.org/publications/ nobasis.pdf; Aff. of Steven Lowell Nock 100-107, 116-119, 130-31, Halpern v. Atty. Gen. of Canada (2001), no. 684/00 (Can. Ont. Sup. Ct. J.), available at http://www.marriagewatch.org/Law/cases/Canada/ontario/halpern/aff_nock.pdf. Even researchers supportive of gay rights recognize these shortcomings. E.g., Michael J. Rosenfeld, Nontraditional Families and Childhood Progress Through School, 47 Demography 755 (2010) (attempting to remedy the sample-size 27

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supporters, those who say the evidence shows that many same-sex parents do an excellent job of parenting are right. Those who say the evidence falls short of showing that same-sex parenting is equivalent to opposite-sex parenting (or better, or worse) are also right. William Meezan & Jonathan Rauch, Gay Marriage, Same-Sex Parenting, and Americas Children, 15 Future of Children 97, 104 (2005). The point is not that these studies are worthless. It simply is that the level of evidence required for social-science researchers and organizations to make policy recommendationsand for legislatures to act or not act based on themis far lower than that needed to demonstrate that such a fundamental organizing principle of our entire culture is unconstitutionally irrational. Ms. Windsor has not come anywhere close to making the latter showing. Accordingly, it is thoroughly rational for government to offer special encouragement for arrangements that can lead to mothers and fathers jointly raising their biological childrenand DOMA does exactly that. 3. Encouraging Childrearing by Both a Mother and a Father

Even when children cannot be raised by their biological parents, it is wholly reasonable to think that the differences between mothers and fathers, and the

shortcoming on one narrow metric), available at http://www.ncbi.nlm.nih.gov/pmc /articles/ PMC3000058/?tool=pmcentrez. 28

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different needs of girls and boys, make it desirable for them to be raised by parents of both sexes. See House Br. 55-56. Ms. Windsors only response to this is her weak insistence that parenting by same-sex couples is indistinguishable from any other kind, which cannot invalidate DOMA for the reasons just discussed. This rational basis thus also establishes DOMAs constitutionality. * * *

Three of the first five paragraphs of Ms. Windsors attempted exposition of what DOMA is and what it does consist of accusations that individual Members of the Congress that enacted DOMA were motivated by prejudice and bias. Windsor Br. 12-13. DOJ likewise repeatedly accuses Congress of disapproval not just of certain choices or conduct, but of individual citizens themselves. DOJ Br. 37, 39, 45. And a major premise of Ms. Windsors case is that the nations elected representatives adopted a positionstill adhered to by the strong majority of the states and a very large portion of the American peoplethat is irrational, bigoted and explicable only by animus. When a robust and evenly-matched political debate is underway on the exact same topic, this is no way for a great democracy to make decisions about the meaning of its important social institutions and the rights of its citizens. If Ms. Windsors contentions are correct, there is every reason to expect that they will prevail in the legislative and popular arenas.

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See supra 8-9. There simply is no need, and no constitutional warrant, for the courts to interfere in this democratic debate. CONCLUSION The judgment of the district court should be reversed, and the case remanded with instructions that the complaint be dismissed with prejudice. Respectfully submitted, /s/Paul D. Clement 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 Counsel for Intervenor-DefendantAppellant the Bipartisan Legal Advisory Group of the U.S. House of Representatives 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 UNITE STATES HOUSE OF REPRESENTATIVES 219 Cannon House Office Building Washington, D.C. 20515 (202) 225-9700 Dated: September 14, 2012 30

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CERTIFICATE OF COMPLIANCE WITH RULE 32(a) Certificate of Compliance With Type-Volume Limitation, Typeface Requirements, and Type Style Requirements 1. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because this brief contains 6,938 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Microsoft Word 2010 in 14-point Times New Roman type. /s/ H. Christopher Bartolomucci H. Christopher Bartolomucci Attorney for the Bipartisan Legal Advisory Group of the United States House of Representatives BANCROFT PLLC 1919 M Street, N.W., Suite 470 Washington, DC 20036 (202) 234-0090