IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

MARY BISHOP and SHARON BALDWIN, )

et al., )
)
Plaintiffs, ) No. 04-CV-848-TCK-TLW
)
v. )
)
UNITED STATES OF AMERICA, et al., )
)
Defendants. )
)

BRIEF IN SUPPORT OF MOTION TO DISMISS

BY UNITED STATES OF AMERICA

TONY WEST
Assistant Attorney General

THOMAS SCOTT WOODWARD

Acting United States Attorney

ARTHUR R. GOLDBERG
Assistant Director

W. SCOTT SIMPSON
Senior Trial Counsel

Attorneys, Department of Justice

Civil Division, Room 7210
Post Office Box 883
Washington, D.C. 20044
Telephone: (202) 514-3495
Facsimile: (202) 616-8470
E-mail: scott.simpson@usdoj.gov

COUNSEL FOR DEFENDANT

UNITED STATES OF AMERICA
 TABLE OF CONTENTS

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

BACKGROUND. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

I. The Defense of Marriage Act.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

II. Plaintiffs’ Claims. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

III. Procedural History. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

I. Plaintiffs Lack Standing to Challenge Either Section of DOMA. . . . . . . . . . . . . . 8

A. Plaintiffs Do Not Have Standing to Challenge Section 2 of DOMA.. . . . . 9

B. Plaintiffs Do Not Have Standing to Challenge Section 3 of DOMA.. . . . 10

II. Plaintiffs Fail to State a Claim on Which Relief Can Be Granted

Regarding Section 3 of DOMA, Which Is Consistent with Prevailing
Equal Protection and Due Process Case Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

A. There Is No Fundamental Right to Federal Benefits

Based on Marital Status. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

B. Under Tenth Circuit Law, DOMA Does Not Rest on

Any Recognized Suspect Classification. . . . . . . . . . . . . . . . . . . . . . . . . . 15

C. Section 3 of DOMA Satisfies Rational Basis Review. . . . . . . . . . . . . . . . 16

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
 TABLE OF AUTHORITIES

CONSTITUTION page(s)

U.S. Const. art. III, § 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

CASES

Allen v. Wright, 468 U.S. 737 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Baehr v. Lewin, 852 P.2d 44 (Haw. 1993).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Bigelow v. Virginia, 421 U.S. 809 (1975). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Bishop v. Oklahoma, 447 F. Supp. 2d 1239 (N.D. Okla. 2006). . . . . . . . . . . . . . . . . . . . . . . . 7,13

Mary Bishop, et al. v. Oklahoma, et al., No. 06-5188, 2009 WL 1566802

(10th Cir. June 5, 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Butler v. Apfel, 144 F.3d 622 (9th Cir.1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Califano v. Gautier Torres, 435 U.S. 1 (1978).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. 189 (1989). . . . . . . . . . . . . . . . 14

Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

FCC v. Beach Communications, Inc., 508 U.S. 307 (1993). . . . . . . . . . . . . . . . . . . . . . . . . . 16,17

Friends of Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167 (2000). . . . . . . . . . . . . 9

FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941 (Mass. 2003).. . . . . . . . . . . . . . . . . . . . . . . 11

Haves v. City of Miami, 52 F.3d 918 (11th Cir. 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Heller v. Doe, 509 U.S. 312 (1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

ii
In re Kandu, 315 B.R. 123 (Bankr. W. D. Wash. 2004), appeal dismissed
Kandu v. United States Trustee, Case No. 3:04-cv-05544-FDB
(W.D. Wash. Oct. 26, 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13,15

Kerrigan v. Comm’r of Pub. Health, 957 A.2d 407 (Conn. 2008). . . . . . . . . . . . . . . . . . . . . . . . 11

Lamers Dairy Inc. v. USDA, 379 F.3d 466 (7th Cir. 2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Lawrence v. Texas, 539 U.S. 558 (2003).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Lyng v. Automobile Workers, 485 U.S. 360 (1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Martinez v. County of Monroe, 50 A.D.3d 189 (N.Y. App. Div. 2008). . . . . . . . . . . . . . . . . . . . 12

Massachusetts v. EPA, 549 U.S. 497 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Medeiros v. Vincent, 431 F.3d 25 (1st Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

New State Ice Co. v. Liebmann, 285 U.S. 262 (1932).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Oklahoma Educ. Ass’n v. Alcoholic Beverage Laws Enforcement

Comm’n, 889 F.2d 929, 934-35 (10th Cir. 1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Powers v. Harris, 379 F.3d 1208 (10th Cir. 2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16,18

Price-Cornelison v. Brooks, 524 F.3d 1103 (10th Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Raines v. Byrd, 521 U.S. 811 (1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Reno v. Flores, 507 U.S. 292 (1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Rich v. Secretary of the Army, 735 F.2d 1220 (10th Cir. 1984). . . . . . . . . . . . . . . . . . . . . . . . . . 15

Save Palisade FruitLands v. Todd, 279 F.3d 1204 (10th Cir. 2002). . . . . . . . . . . . . . . . . . 12,13,17

SEC v. Chenery Corp., 332 U.S. 194 (1947). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Seegmiller v. LaVerkin City, 528 F.3d 762 (10th Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Shaw v. Oregon Public Employees’ Retirement Bd., 887 F.2d 947 (9th Cir. 1989). . . . . . . . . . . 16

iii
Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26 (1976). . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Smelt v. County of Orange, 374 F. Supp. 2d 861 (C.D. Cal. 2005),

vacated on other grounds, 447 F.3d 673 (9th Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . 13

Smelt v. County of Orange, 447 F.3d 673 (9th Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . 10,11

Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998).. . . . . . . . . . . . . . . . . . . . . . . . . . 8,10

Summers v. Earth Island Inst., 129 S. Ct. 1142 (2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

United States v. Deters, 143 F.3d 577 (10th Cir. 1998).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

United States v. Phelps, 17 F.3d 1334 (10th Cir. 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

United States v. Pollard, 326 F.3d 397 (3d Cir. 2003).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11,12

Walmer v. Department of Defense, 52 F.3d 851 (10th Cir. 1995). . . . . . . . . . . . . . . . . . . . . . . . 15

Washington v. Glucksberg, 521 U.S. 702 (1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13,14,16

Whitmore v. Arkansas, 495 U.S. 149, 155 (1990).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8,9

Williams v. Attorney Gen. of Ala., 378 F.3d 1232 (11th Cir. 2004).. . . . . . . . . . . . . . . . . . . . . . 14

Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

STATUTES AND LEGISLATIVE HISTORY

1 U.S.C. § 7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,12

28 U.S.C. § 1738C. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,12

Pub. L. No. 104-199, 110 Stat. 2419 (1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

H.R. Rep. No. 104-664, reprinted in 1996 U.S.C.C.A.N. 2905.. . . . . . . . . . . . . . . . . . . . . . . . . . . 5

D.C. Code § 46-405.01. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

iv
LD 1020, An Act To End Discrimination in Civil Marriage & Affirm
Religious Freedom, 2009 Me. Legis. Serv. ch. 82 (West). . . . . . . . . . . . . . . . . . . . . . . . . 11

HB 436, An Act Relative to Civil Marriage & Civil Unions, 2009 N.H. Laws ch. 59. . . . . . . . . 11

S. 115, An Act to Protect Religious Freedom & Recognize Equality in

Civil Marriage, 2009 Vt. Acts & Resolves no. 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

OTHER AUTHORITIES

In re Levenson, 560 F.3d 1145 (9th Cir. Jud. Council 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

American Academy of Child and Adolescent Psychiatry, http://www.aacap.org/

cs/root/policy_statements/gay_lesbian_transgender_and_bisexual_
parents_policy_statement (June 1999 policy statement). . . . . . . . . . . . . . . . . . . . . . . . . . 18

American Academy of Pediatrics, http://aappolicy.aappublications.org/

cgi/content/full/pediatrics;109/2/339 (February 2002 policy statement). . . . . . . . . . . . . . . . . . . . 18

American Medical Association, http://www.ama-assn.org/ama/pub/about-

ama/our-people/ member-groups-sections/glbt-advisory-committee/
ama-policy-regarding-sexual-orientation.shtml (AMA Policy Regarding
Sexual Orientation). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

American Psychological Association, http://www.apa.org/pi/lgbc/policy/

parents.html (July 2004 policy statement). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Child Welfare League of America, http://www.cwla.org/programs/culture/

glbtqposition.htm (Position Statement on Parenting of Children by
Lesbian, Gay, and Bisexual Adults).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Black’s Law Dictionary 972 (6th ed. 1990).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

v
 INTRODUCTION

This case involves, in part, a challenge to the constitutionality of the Defense of Marriage

Act (“DOMA”). As the President has stated previously, this Administration does not support

DOMA as a matter of policy, believes it is discriminatory, and supports its repeal. Consistent

with the rule of law, however, the Department of Justice has long followed the practice of

defending federal statutes as long as reasonable arguments can be made in support of their

constitutionality, even if the Department disagrees with a particular statute as a policy matter, as

it does here.1 The law of this Circuit requires this Court to find that DOMA is constitutionally

permissible because Congress could reasonably have concluded that DOMA is rationally related

to legitimate governmental interests.

Congress passed DOMA in 1996, at a time when States and their citizens were just

beginning to address the legal status of same-sex marriage. Since that time, six States have

enacted statutes or issued court decisions that permit (or will soon permit) same-sex marriage,

and forty States have promulgated statutes or constitutional amendments that define marriage as

between a man and a woman. DOMA reflects Congress’s response to this still-evolving debate

among the States regarding same-sex marriage.

Consistent with our federal system, which allows each State to design its own policies,

see New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting), DOMA

does not address whether a same-sex couple may marry within the United States. Instead, it

permits each State to decide that question for itself. Section 2 of DOMA reserves for each State

the decision of whether to recognize same-sex marriages performed in other States. Section 3 of

1
This longstanding and bipartisan tradition accords the respect appropriately due to a
co-equal branch of government and ensures that subsequent administrations will faithfully defend
laws with which they may disagree on policy grounds.
DOMA, in turn, addresses the effect of new state understandings of marriage on federal programs

that presently tie entitlement to certain federal benefits to marital status.

One of the plaintiff couples in this case, Susan Barton and Gay Phillips, challenge

DOMA, alleging that it “operate[s]” to deny recognition of their California marriage in Okla-

homa and has caused, or will cause, the denial of unspecified “rights and benefits” available to

heterosexual married couples (Doc. 122 ¶¶ 12, 20).2 Plaintiffs’ allegations are inadequate,

however, to establish their standing to challenge either section of DOMA. Plaintiffs lack

standing to challenge Section 2 both because they have not actually sought recognition of their

California marriage in Oklahoma and because any inability to secure such recognition would be

attributable, not to DOMA, but to state law. In relation to Section 3, plaintiffs do not allege any

specific instance in which the federal definitions of “marriage” and “spouse” have been applied

to them for purposes of any federal law. They fail to allege, for example, that they have ever

applied for any federal benefits that are available on the basis of married status, let alone that

they have been denied any such benefits as a result of DOMA. All of plaintiffs’ claims against

the United States should, therefore, be dismissed for lack of standing.

Alternatively in relation to Section 3 of DOMA, plaintiffs’ challenge should be dismissed

for failure to state a claim upon which relief can be granted.3 Although it denies same-sex

2
Only plaintiffs Barton and Phillips seek any relief against the United States herein (Doc.
122 at 9-10); thus, this motion to dismiss addresses only their claims. The other plaintiff couple,
Mary Bishop and Sharon Baldwin, have not been legally married under any jurisdiction, and seek
relief only against the defendant State of Oklahoma (id. at 9-10 & ¶ 11). For the sake of
simplicity, this memorandum will use the term “plaintiffs” as referring only to Barton and
Phillips.
3
Plaintiffs cannot cure their lack of standing to challenge Section 2 of DOMA in this case
because the relief they seek can only be obtained by invalidating Oklahoma law. It is Oklahoma
law – not Section 2 – that prevents Oklahoma from granting them a marriage license or

2
couples certain federal benefits, DOMA – like all federal statutes – is entitled to a presumption of

constitutionality. DOMA does not preclude States from recognizing same-sex marriage.

Properly understood, therefore, the right at issue in this case is not the right to marry (plaintiffs

have married in California), but a right to receive certain federal benefits on the basis of

marriage. No court has found such a right to be fundamental – and the federal courts that have

considered the question in the context of DOMA itself have rejected such a claim. Moreover,

the Tenth Circuit has held that sexual orientation is not a suspect classification.

Accordingly, this Court is bound to review Section 3 under rational basis review. Under

this deferential standard, a court may not act as superlegislature, sitting in judgment on the

wisdom or fairness of a legislative policy. Instead, a legislative policy must be upheld so long as

there is any reasonably conceivable set of facts that could provide a rational basis for it, including

ones that Congress itself did not advance or consider. DOMA satisfies this standard.

The rational basis here arises out of Congress’s ability under the Constitution to address

issues of social reform on a piecemeal, or incremental, basis. Congress has long conferred

various financial and other benefits on the basis of marriage in light of the central role the

institution has played in advancing a variety of societal interests. When States began to consider

allowing gay and lesbian couples to marry, Congress effectively adopted the status quo. It

codified, for purposes of federal benefits, a definition of marriage that all fifty States had adopted

(i.e., the union of a man and a woman) and continued to accord financial and other benefits on

the basis of that understanding.

recognizing their California marriage (see infra at 9-10). Because plaintiffs cannot cure their lack
of standing to challenge Section 2, the United States has limited its alternative argument on the
merits to Section 3.

3
 Congress is permitted to provide benefits only to those who have historically been

permitted to marry, without extending the same benefits to those only recently permitted to do so.

Its decision to maintain the federal status quo while preserving the ability of States to grant

marriage rights to same-sex couples is rational. Congress may subsequently decide to extend

federal benefits to same-sex marriages, and this Administration believes that Congress should do

so. But its decision not to do so to this point is neither irrational nor unconstitutional.

Accordingly, the claims that plaintiffs Barton and Phillips plead against the United States

should be dismissed.

BACKGROUND

I. THE DEFENSE OF MARRIAGE ACT

In 1996, Congress enacted, and President Clinton signed into law, the Defense of

Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419 (1996). Section 2 of DOMA provides that

“[n]o State . . . shall be required to give effect to any public act, record, or judicial proceeding of

any other State . . . respecting a relationship between persons of the same sex that is treated as a

marriage under the laws of such other State.” 28 U.S.C. § 1738C. Section 3 of DOMA defines

the terms “marriage” and “spouse,” for purposes of federal law, to include only the union of one

man and one woman. Specifically, it provides that:

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 wife.

1 U.S.C. § 7.

The House Judiciary Committee explained in its report that DOMA was enacted

following the decision in Baehr v. Lewin, 852 P.2d 44 (Haw. 1993), in which a plurality of the

4
Hawaii Supreme Court concluded that the definition of marriage under Hawaii law (as the union

of one man and one woman) might warrant heightened scrutiny under the state constitution. See

H.R. Rep. No. 104-664, at 2, reprinted in 1996 U.S.C.C.A.N. 2905, 2906. In response, Congress

sought both to “preserve[ ] each State’s ability to decide” what should constitute a marriage

under its own laws and to “lay[ ] down clear rules” regarding what constitutes a marriage for

purposes of federal law. Id. In enacting Section 2 of DOMA, Congress relied on its “express

grant of authority,” under the second sentence of the Constitution’s Full Faith and Credit Clause,

“to prescribe the effect that public acts, records, and proceedings from one State shall have in

sister States,” id. at 25, reprinted in 1996 U.S.C.C.A.N. at 2930, and preserved the power of the

States to decline to give effect to the laws of other States respecting same-sex marriage. In

relation to Section 3 of DOMA, the Committee noted that the statute codifies, for purposes of

federal law, the definition of marriage set forth in “the standard law dictionary.” Id. at 29,

reprinted in 1996 U.S.C.C.A.N. at 2935 (citing Black’s Law Dictionary 972 (6th ed. 1990)).

II. PLAINTIFFS’ CLAIMS

The plaintiffs in this action are two same-sex couples residing in Oklahoma. One of the

couples, Susan Barton and Gay Phillips, “are lesbian individuals who have been in a long-term

committed relationship for twenty-five years,” and were married in California on November 1,

2008 (Doc. 122 ¶ 12). They were married previously in Canada, and were earlier joined in a civil

union in Vermont (id.).

Plaintiffs allege that they have applied for a marriage license in Oklahoma but were

denied because of Article 2, Section 35, of the Oklahoma Constitution, which provides that

“marriage in this state shall consist only of the union of one man and one woman” and that “[a]

marriage between persons of the same gender performed in another state shall not be recognized

5
as valid and binding in this state” (id. ¶¶ 13, 19). Plaintiffs assert that DOMA and the cited

provision of the Oklahoma Constitution “operate to deny” them recognition of their California

marriage (id. ¶ 12). This “inability to have their relationship recognized,” plaintiffs allege, has

also caused them to be “denied access to rights and benefits, both federal and state, provided to

heterosexual couples based solely on their married status” (id. ¶ 20).

As relief against the United States, plaintiffs seek “a declaration that Sections 2 and 3 of

DOMA violate the U.S. Constitution’s Equal Protection and substantive Due Process Rights of

Plaintiffs Barton and Phillips” (id. at 10). Plaintiffs also seek relief against the defendant State of

Oklahoma regarding Oklahoma law.

III. PROCEDURAL HISTORY

This action was initially filed in November 2004, challenging DOMA and Article 2,

Section 35, of the Oklahoma Constitution (Doc. 1). Plaintiffs pled claims under the Due Process

Clause (including its equal protection component), the Full Faith and Credit Clause, and the

Privileges and Immunities Clause. At that time, all four plaintiffs – Susan Barton, Gay Phillips,

Mary Bishop, and Sharon Baldwin – were unmarried, although plaintiffs Barton and Phillips had

been joined in a civil union in Vermont (id. ¶ 13-14).

The United States filed a motion to dismiss, asserting that plaintiffs Bishop and Baldwin

lacked standing to challenge Section 2 of DOMA given that they had not been married under the

laws of any State (Doc. 15). The United States also addressed the merits of plaintiffs’ equal

protection and due process claims, as well as their claims under the Full Faith and Credit Clause

and the Privileges and Immunities Clause.

This Court granted the United States’ motion to dismiss in part and denied it in part. The

Court held that all four plaintiffs lacked standing to challenge Section 2 of DOMA, and that the

6
unmarried plaintiffs (Bishop and Baldwin) lacked standing to challenge Section 3. Bishop v.

Oklahoma, 447 F. Supp. 2d 1239, 1244-51 (N.D. Okla. 2006). The Court sua sponte considered

the standing of plaintiffs Barton and Phillips to challenge Section 3 in light of their Canadian

marriage and Vermont civil union, but declined to resolve the question at that time. Id. at

1249-51.

On the merits, this Court dismissed plaintiffs’ challenges to Section 3 based on the Full

Faith and Credit Clause and the Privileges and Immunities Clause. Id. at 1251-52. The Court

deferred ruling on the due process and equal protection claims in light of the interests relied on in

the government’s rational basis argument, noting that those challenges would be “more

appropriately decided at the summary judgment stage, because they may involve specific factual

findings related to the purpose and justifications for the law.” Id. at 1252-53.4 In the same order,

this Court also addressed standing arguments made by the Governor and Attorney General of

Oklahoma, and all proceedings in this Court were later stayed pending those officials’ appeal

from that aspect of the order (Doc. 109). The Court of Appeals held that plaintiffs lacked

standing to seek relief against the Governor and Attorney General, and remanded to this Court

for further proceedings. See Mary Bishop, et al. v. Oklahoma, et al., No. 06-5188, 2009 WL

1566802 (10th Cir. June 5, 2009).

4
In its earlier motion to dismiss, the United States had relied on two governmental
interests – specifically, “responsible procreation” or “encouraging the development of relation-
ships that are optimal for procreation” (that is, the marriage of a male and a female), and
“encourag[ing] the creation of stable relationships that facilitate the rearing of children by both of
their biological parents” (Doc. 15 at 19-21). The United States does not believe that DOMA can
be justified by any interest in responsible procreation or child-rearing, and does not rely on those
interests here.

7
 Upon remand, the plaintiffs have filed an amended complaint, substantially revising their

claims and the alleged factual and legal bases of those claims (Doc. 122). The United States now

moves to dismiss Plaintiffs’ First Amended Complaint.

ARGUMENT

I. PLAINTIFFS LACK STANDING TO CHALLENGE EITHER SECTION OF DOMA

The power of federal courts extends only to “Cases” and “Controversies,” see U.S. Const.

art. III, § 2, and a litigant’s standing to sue is “an essential and unchanging part of the case-or-

controversy requirement.” See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). To

satisfy this requirement, a plaintiff must demonstrate, as the “irreducible constitutional mini-

mum” of standing to sue, an “injury in fact”, a “fairly traceable” causal connection between the

injury and defendant’s conduct, and redressability. See Steel Co. v. Citizens for a Better Env’t,

523 U.S. 83, 102-03 (1998); see also Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12

(2004) (“The plaintiff must show that the conduct of which he complains has caused him to

suffer an ‘injury in fact’ that a favorable judgment will redress.”). The injury needed for consti-

tutional standing must be “concrete,” “objective,” and “palpable,” not merely “abstract” or

“conjectural.” See Whitmore v. Arkansas, 495 U.S. 149, 155 (1990); Bigelow v. Virginia, 421

U.S. 809, 816-17 (1975).

The redressability element is not satisfied unless plaintiff shows “a likelihood that the

requested relief will redress the alleged injury.” Steel Co., 523 U.S. at 103; accord Simon v.

Eastern Ky. Welfare Rights Org., 426 U.S. 26, 38 (1976) (relief must be “likely” to redress

injury). Standing will not be found, therefore, if it is “speculative whether the desired exercise of

the court’s remedial powers . . . would result” in the relief sought by plaintiffs. Id. at 43. The

standing inquiry, moreover, must be “especially rigorous when,” as here, “reaching the merits of

8
the dispute would force [a court] to decide whether an action taken by [another] branch[ ] of the

Federal Government was unconstitutional.” Raines v. Byrd, 521 U.S. 811, 819-20 (1997). If the

plaintiff lacks standing, the Court lacks subject matter jurisdiction. See FW/PBS, Inc. v. City of

Dallas, 493 U.S. 215, 231 (1990) (“standing ‘is perhaps the most important of [the jurisdictional]

doctrines’”) (quoting Allen v. Wright, 468 U.S. 737, 750 (1984)). Under these principles,

plaintiffs Barton and Phillips lack standing to challenge either Section 2 or Section 3 of DOMA.

A. Plaintiffs Do Not Have Standing to Challenge Section 2 of DOMA

For two reasons, plaintiffs lack every required element of standing to challenge Section 2,

the provision regarding recognition of a same-sex marriage performed in another State. First,

plaintiffs do not allege that they have actually sought and been denied recognition of their

California marriage in Oklahoma. Plaintiffs allege only that they “desire the validity of their

California marriage be recognized in the same way and to the same extent it would be recognized

if they were a heterosexual couple” (Doc. 122 ¶ 12, emphasis added). But a mere “desire” does

not establish that plaintiffs have suffered any “concrete” injury as a result of Section 2. See

Whitmore, 495 U.S. at 155. Plaintiffs’ allegations do not establish that Section 2 has had any

effect on them.

Second, even if plaintiffs had actually been denied recognition of their marriage in

Oklahoma, that denial would not be attributable to DOMA, but to the Oklahoma Constitution. In

order for the plaintiffs to have standing to challenge Section 2 of DOMA, their injury must, at a

minimum, “be fairly traceable to the challenged action of the defendant; and it must be likely that

a favorable judicial decision [with respect to Section 2] will prevent or redress the injury.”

Summers v. Earth Island Inst., 129 S. Ct. 1142, 1149 (2009) (quoting Friends of Earth, Inc. v.

Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000)). Plaintiffs do not and could not

9
satisfy these elements here. It is not Section 2, but rather Oklahoma law, that prevents Oklahoma

from granting them a marriage license or recognizing their California marriage. Nor would any

ruling on Section 2 be “likely” to redress that injury: If the courts were eventually to rule that the

Equal Protection Clause requires Oklahoma to grant plaintiffs a marriage license or recognize

their California marriage, then Section 2 of DOMA will not stand in the way of the relief they are

seeking. Conversely, if the courts rule that it is constitutional for Oklahoma to deny a marriage

license or recognition of plaintiffs’ California marriage, any ruling on the constitutionality of

Section 2 would do nothing to provide any relief.

B. Plaintiffs Do Not Have Standing to Challenge Section 3 of DOMA

Plaintiffs also lack standing to challenge Section 3, which defines “marriage” and

“spouse” for purposes of federal law. Plaintiffs’ only allegation regarding the effect of Section 3

on them is that they have “been, or will be, denied access to rights and benefits, both federal and

state, provided to heterosexual couples based solely on their married status” (Doc. 122 ¶ 20).

Plaintiffs do not allege, however, that they have actually been denied any specific federal benefits

because of DOMA or even that they have applied for benefits under any program to which this

statute might apply. Thus, plaintiffs have not shown that they have suffered any concrete “injury

in fact” due to the definitional provision of DOMA. See Steel Co., 523 U.S. at 102-03.

The Ninth Circuit found a lack of standing to challenge Section 3 in similar

circumstances. In Smelt v. County of Orange, a same-sex couple sought to challenge DOMA,

and the court held, sua sponte, that they lacked standing to challenge Section 3 both because they

were unmarried and because they had failed to allege that DOMA’s definitions of “marriage” and

“spouse” had been applied to them. 447 F.3d 673 (9th Cir. 2006). The court said:

10
 DOMA itself simply does not injure [the plaintiffs] or exclude them from some
undefined benefit to which they might have been or might someday be entitled. In
fact, they do not suggest that they have applied for any federal benefits, much less
been denied any at this point. That they might someday . . . ask for some federal
benefit which they are denied is not enough. In short, they have not spelled out a
legally protected interest, much less one that was injured in a concrete and
particularized way.

Id. at 684 (emphasis added) (citations omitted). As with Smelt, plaintiffs here have “not

suggest[ed] that they have applied for any federal benefits, much less been denied any at this

point.”

Like the plaintiffs in Smelt, the plaintiffs here are without standing to challenge DOMA’s

constitutionality.

II. PLAINTIFFS FAIL TO STATE A CLAIM ON WHICH RELIEF

CAN BE GRANTED REGARDING SECTION 3 OF DOMA,
WHICH IS CONSISTENT WITH PREVAILING EQUAL
PROTECTION AND DUE PROCESS CASE LAW

Alternatively, even if plaintiffs could cure their lack of standing to challenge Section 3 of

DOMA, that challenge should be dismissed for failure to state a claim on which relief can be

granted. Plaintiffs allege that DOMA violates their right to equal protection and due process

under the Fifth Amendment. In recent years, six States have guaranteed gay and lesbian couples

the right to marry. See HB 436, An Act Relative to Civil Marriage & Civil Unions, 2009 N.H.

Laws ch. 59; LD 1020, An Act To End Discrimination in Civil Marriage & Affirm Religious

Freedom, 2009 Me. Legis. Serv. ch. 82 (West); S. 115, An Act to Protect Religious Freedom &

Recognize Equality in Civil Marriage, 2009 Vt. Acts & Resolves no. 3; Varnum v. Brien, 763

N.W.2d 862 (Iowa 2009); Kerrigan v. Comm’r of Pub. Health, 957 A.2d 407 (Conn. 2008);

Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941 (Mass. 2003). In addition, one state – New

York – and the District of Columbia recognize same-sex marriages performed under the laws of

11
other jurisdictions, although neither presently issues marriage licenses to same-sex couples. See

D.C. Code § 46-405.01; Martinez v. County of Monroe, 50 A.D.3d 189 (N.Y. App. Div. 2008).

Forty other States have codified, either by statute or by constitutional amendment, a definition of

marriage as the union of a man and a woman. See Varnum, 763 N.W.2d at 878 n.5.

DOMA reflects what Congress reasonably believed was an appropriate response to this

ongoing debate in the States. It codifies, for purposes of federal statutes, regulations, and rulings,

the understanding of marriage as “a legal union between one man and one woman as husband

and wife,” see 1 U.S.C. § 7, and it preserves to each State the ability to retain that definition as its

policy if the State so chooses, or to alter it, as it sees fit, see 28 U.S.C. § 1738C. In enacting

DOMA, therefore, Congress (1) recognized the right of any State to allow gays and lesbians to

marry while, at the same time, it permitted other States to adhere to their existing understandings

of the institution, and (2) preserved the status quo in relation to the federal definition of marriage,

while the States continued to examine and debate the subject.

Under rational basis review, Congress is entitled to respond to new social mores one step

at a time and to adjust national policy incrementally. DOMA reflects just such a response. It

maintains the status quo on the national level and permits autonomy on the state level. Plaintiffs

cannot overcome the “presumption of constitutionality” that DOMA, like all federal statutes,

enjoys. See, e.g., Califano v. Gautier Torres, 435 U.S. 1, 5 (1978). Congress could view

DOMA as rationally related to legitimate governmental interests. The statute does not make a

distinction based on what the federal courts have held to constitute a “suspect class,” see Save

Palisade FruitLands v. Todd, 279 F.3d 1204, 1210 (10th Cir. 2002), nor have federal courts

found a fundamental right to the marriage-based federal benefits that DOMA restricts. Those

12
federal courts that have specifically addressed the constitutionality of one or both sections of

DOMA have upheld them against constitutional challenges.5 This Court must do likewise here.

A. There Is No Fundamental Right to Federal Benefits

Based on Marital Status

Equal protection and due process claims are typically subject to “rational basis” review,

under which the challenged statute will be upheld as long as it is “rationally related to a legiti-

mate state interest.” See Seegmiller v. LaVerkin City, 528 F.3d 762, 771-72 (10th Cir. 2008).

Only if the statute “target[s] a suspect class or involve[s] a fundamental right” will it be subjected

to a higher standard of review. See Save Palisade FruitLands, 279 F.3d at 1210. DOMA

deprives same-sex couples of certain federal benefits that are tied to marital status. There is no

fundamental right, however, to marriage-based federal benefits.

A fundamental constitutional right protected by the Due Process Clause is one that is

“objectively, deeply rooted in this Nation’s history and tradition” and “implicit in the concept of

ordered liberty.” Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997). The Supreme Court

has mandated extreme caution in elevating individual liberty interests, no matter how genuinely

and profoundly important they may be to the parties asserting them, to the status of fundamental

constitutional rights. As the Court has explained:

5
See, e.g., Smelt v. County of Orange, 374 F. Supp. 2d 861 (C.D. Cal. 2005) (Section 3),
vacated on other grounds, 447 F.3d 673 (9th Cir. 2006); Wilson v. Ake, 354 F. Supp. 2d 1298
(M.D. Fla. 2005) (Section 2 and Section 3); In re Kandu, 315 B.R. 123 (Bankr. W. D. Wash.
2004) (Section 3), appeal dismissed Kandu v. United States Trustee, Case No. 3:04-cv-05544-
FDB (W.D. Wash. Oct. 26, 2006); see also Bishop v. Oklahoma, 447 F. Supp. 2d 1239 (N.D.
Okla. 2006) (rejecting certain constitutional challenges but deferring others pending further
development). But cf. In re Levenson, 560 F.3d 1145, 1149 (9th Cir. Jud. Council 2009)
(Reinhardt, J.) (suggesting, in his capacity as designee of the Chair of the Ninth Circuit’s
Standing Committee on Federal Public Defenders, that DOMA should be subject to heightened
scrutiny, and finding that its denial of federal benefits to the same-sex spouse of federal
employee had “no rational basis” and therefore “contravene[d] the Fifth Amendment”).

13
 By extending constitutional protection to an asserted right or liberty interest, we,
to a great extent, place the matter outside the arena of public debate and legislative
action. We must therefore exercise the utmost care whenever we are asked to
break new ground in this field, lest the liberty protected by the Due Process
Clause be subtly transformed into the policy preferences of the Members of this
Court.

Id. at 720 (citations and internal quotation marks omitted); see Williams v. Attorney Gen. of

Ala., 378 F.3d 1232, 1250 (11th Cir. 2004) (observing that conferring constitutional status on an

asserted right prevents future revision through democratic process). Accordingly, only a “small

number” of substantive rights qualify under the Fifth Amendment as “fundamental.” United

States v. Deters, 143 F.3d 577, 582 (10th Cir. 1998).

A court must reach a “careful description” of the alleged right before determining

whether it is fundamental. Glucksberg, 521 U.S. at 721. Most importantly, the asserted right

must be defined with specificity, rather than in general terms. Only upon reaching this specific,

“careful description” can a court proceed to determine whether the asserted right is fundamental.6

The asserted right on which plaintiffs’ claims rest in this case is not a right to marry.

DOMA does not prohibit gay and lesbian couples from marrying, nor does it prohibit the States

from acknowledging same-sex marriages. Instead, plaintiffs’ claim against Section 3 rests on an

asserted right to receive federal benefits on the basis of their mutual status. There is, however,

no fundamental right to marriage-based federal benefits. See, e.g., DeShaney v. Winnebago

6
For example, in Washington v. Glucksberg, the right was not – properly characterized –
a “right to die,” but rather a “right to commit suicide.” 521 U.S. at 722-23. Similarly, in Reno v.
Flores, in which juvenile aliens challenged their detention by the government, the Supreme Court
rejected an invitation to characterize the asserted right as “freedom from physical restraint,” and
instead characterized it as “the alleged right of a child who has no available parent, close relative,
or legal guardian, and for whom the government is responsible, to be placed in the custody of a
willing-and-able private custodian rather than of a government-operated or government-selected
child-care institution.” 507 U.S. 292, 302 (1993).

14
County Dep’t of Soc. Servs., 489 U.S. 189, 196 (1989) (Due Process Clause “generally confer[s]

no affirmative right to governmental aid, even where such aid may be necessary to secure life,

liberty, or property interests of which the government itself may not deprive the individual”);

Lyng v. Automobile Workers, 485 U.S. 360, 368 (1987) (holding that a decision “not to subsi-

dize the exercise of a fundamental right does not infringe the right.”). Accordingly, the fact that

DOMA denies marriage-based federal benefits to same-sex couples does not subject it to

heightened scrutiny.

B. Under Tenth Circuit Law, DOMA Does Not Rest on

Any Recognized Suspect Classification

The Tenth Circuit has concluded that sexual orientation does not constitute a suspect

classification under the Fifth Amendment, and that holding is binding on this Court. See

Price-Cornelison v. Brooks, 524 F.3d 1103, 1113 n.9 (10th Cir. 2008) (noting that “this court,

like many others, has previously rejected the notion” that sexual orientation is a suspect

classification); Walmer v. Department of Defense, 52 F.3d 851, 854-55 (10th Cir. 1995)

(affirming district court’s rejection of argument that classifications based on sexual orientation

are subject to heightened scrutiny); Rich v. Secretary of the Army, 735 F.2d 1220, 1229 (10th

Cir. 1984) (holding that “[a] classification based on one’s choice of sexual partners is not

suspect”); see also In re Kandu, 315 B.R. 123, 144 (Bankr. W. D. Wash. 2004) (“[T]he Supreme

Court did not hold [in Lawrence v. Texas, 539 U.S. 558, 578 (2003)] that same-sex couples

constitute a suspect or semi-suspect class under an equal protection analysis.”), appeal dismissed

Kandu v. United States Trustee, Case No. 3:04-cv-05544-FDB (W.D. Wash. Oct. 26, 2006).

15
 C. Section 3 of DOMA Satisfies Rational Basis Review

In light of the foregoing analysis, DOMA is necessarily subject only to rational basis

review. See, e.g., Glucksberg, 521 U.S. at 728. The Supreme Court has described the elements

of rational basis review in Heller v. Doe:

[R]ational-basis review . . . is not a license for courts to judge the wisdom,

fairness, or logic of legislative choices. [A] classification neither involving
fundamental rights nor proceeding along suspect lines is accorded a strong
presumption of validity. Such a classification cannot [be found unconstitutional]
if there is a rational relationship between the [challenged government action] and
some legitimate governmental purpose. . . . [A] classification must be upheld . . .
if there is any reasonably conceivable state of facts that could provide a rational
basis for the classification.

[The government], moreover, has no obligation to produce evidence to sustain the

rationality of a statutory classification. A legislative choice is not subject to
courtroom factfinding and may be based on rational speculation unsupported by
evidence or empirical data. [T]he burden is on the one attacking the legislative
arrangement to negative every conceivable basis which might support it, whether
or not the basis has a foundation in the record. Finally, courts are compelled
under rational-basis review to accept a legislature’s generalizations even when
there is an imperfect fit between means and ends.

509 U.S. 312, 319-20 (1993) (emphases added) (citations and internal quotation marks omitted);

see Powers v. Harris, 379 F.3d 1208, 1217 (10th Cir. 2004) (“[Under rational basis review,] it is

entirely irrelevant for constitutional purposes whether the conceived reason for the challenged

distinction actually motivated the legislature.”) (emphasis added) (quoting FCC v. Beach

Communications, Inc., 508 U.S. 307, 315 (1993)). As several federal circuits have held, a court

applying rational basis review “may even hypothesize the motivations of the . . . legislature to

find a legitimate objective promoted by the provision under attack.” Shaw v. Oregon Public

Employees’ Retirement Bd., 887 F.2d 947, 948-49 (9th Cir. 1989) (internal quotation marks

omitted); accord, e.g., Lamers Dairy Inc. v. USDA, 379 F.3d 466, 473 (7th Cir. 2004); United

States v. Pollard, 326 F.3d 397, 408 (3d Cir. 2003); Haves v. City of Miami, 52 F.3d 918, 922

16
(11th Cir. 1995). This test imposes a “very difficult burden” on the plaintiffs, United States v.

Phelps, 17 F.3d 1334, 1345 (10th Cir. 1994); rational basis analysis is “a paradigm of judicial

restraint.” Beach Communications, Inc., 508 U.S. at 314; see Save Palisade FruitLands, 279

F.3d at 1213 (referring to rational-basis test as “minimal scrutiny”).

Section 3 of DOMA withstands review under this deferential standard. DOMA was

enacted in 1996, as the debate regarding marriage equality was just beginning in the States. At

that time, no State had actually permitted gay and lesbian couples to marry. In the intervening

years, six States have enacted statutes or issued court decisions that permit (or will soon permit)

same-sex marriage.7 On the other hand, 29 States have promulgated constitutional amendments

that limit marriage to opposite-sex couples, and 11 more States have enacted statutes to the same

effect.

As demonstrated by the state legislative and constitutional activity in the years since

DOMA’s enactment, same-sex marriage is a contentious social issue. Given the evolving nature

of this issue, Congress was constitutionally entitled to maintain the status quo pending further

evolution in the States. Otherwise, “marriage” and “spouse” for the purposes of federal law

would depend on the outcome of this debate in each State, with the meanings of those terms

under federal law potentially changing with any change in the status of the debate in a given

State. Federal rights would vary dramatically from State to State. Congress could reasonably

have concluded that there is a legitimate government interest in maintaining the status quo and

preserving nationwide consistency in the distribution of marriage-based federal benefits.

7
Those States are New Hampshire, Maine, Vermont, Iowa, Connecticut, and
Massachusetts.

17
 Rational basis review recognizes that the legislature is entitled to respond to new social

phenomena one step at a time and to adjust national policy incrementally. See Oklahoma Educ.

Ass’n v. Alcoholic Beverage Laws Enforcement Comm’n, 889 F.2d 929, 934-35 (10th Cir.

1989); accord Medeiros v. Vincent, 431 F.3d 25, 31-32 (1st Cir. 2005) (“[A] statute or regulation

is not lacking in a rational basis simply because it addresses a broader problem in small or

incremental stages.”) (citation omitted); Butler v. Apfel, 144 F.3d 622, 625 (9th Cir.1998)

(“[R]eform may take one step at a time, addressing itself to the phase of the problem which

seems most acute to the legislative mind.”). As the Supreme Court has observed, legislatures

may “refin[e] their preferred approach as circumstances change and as they develop a more-

nuanced understanding of how best to proceed.” Massachusetts v. EPA, 549 U.S. 497, 524

(2007); see SEC v. Chenery Corp., 332 U.S. 194, 202 (1947) (“Some principles must await their

own development, while others must be adjusted to meet particular, unforeseeable situations.”).

DOMA reflects just such a response. It maintains the status quo on the national level and permits

autonomy and legal evolution on the state level.8

8
The United States no longer relies on certain purported interests described in its earlier
motion to dismiss in this action – that is, the assertions that (1) the government’s interest in
“responsible procreation” justifies limiting marriage to a union between one man and one
woman, and (2) that the government has an interest in promoting the raising of children by both
of their biological parents (Doc. 15 at 19-21). Since the enactment of DOMA, many leading
medical, psychological, and social welfare organizations have issued policies opposing
restrictions on lesbian and gay parenting upon concluding, 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. See American Academy of Pediatrics, http://aappolicy.aappublications.org/
cgi/content/full/pediatrics;109/2/339 (February 2002 policy statement); American Psychological
Association, http://www.apa.org/pi/lgbc/policy/parents.html (July 2004 policy statement);
American Academy of Child and Adolescent Psychiatry, http://www.aacap.org/cs/root/policy_
statements/gay_lesbian_transgender_and_bisexual_parents_policy_statement (June 1999 policy
statement); American Medical Association, http://www.ama-assn.org/ama/pub/about-ama/our-
people/ member-groups-sections/glbt-advisory-committee/ama-policy-regarding-sexual-
orientation.shtml (AMA Policy Regarding Sexual Orientation); Child Welfare League of

18
 CONCLUSION

For the foregoing reasons, the claims against the United States by plaintiffs Barton and

Phillips should be dismissed with prejudice.

Dated this 13th day of October, 2009.

Respectfully submitted,

TONY WEST
Assistant Attorney General

THOMAS SCOTT WOODWARD

Acting United States Attorney

ARTHUR R. GOLDBERG
Assistant Director

s/ W. Scott Simpson
_______________________________
W. SCOTT SIMPSON
Senior Trial Counsel

Attorneys, Department of Justice

Civil Division, Room 7210
Post Office Box 883
Washington, D.C. 20044
Telephone: (202) 514-3495
Facsimile: (202) 616-8470
E-mail: scott.simpson@usdoj.gov

COUNSEL FOR DEFENDANT

UNITED STATES OF AMERICA

America, http://www.cwla.org/programs/culture/glbtqposition.htm (Position Statement on

Parenting of Children by Lesbian, Gay, and Bisexual Adults). Furthermore, in Lawrence v.
Texas, 539 U.S. 558, 605 (2003), Justice Scalia acknowledged in his dissent that encouraging
procreation would not be a rational basis for limiting marriage to opposite-sex couples under the
reasoning of the Lawrence majority opinion – which, of course, is the prevailing law – because
“the sterile and the elderly are allowed to marry.” Thus, the government does not believe that
DOMA can be justified by interests in “responsible procreation” or “child-rearing.”

19
 CERTIFICATE OF SERVICE

I hereby certify that on October 13, 2009, I electronically transmitted the foregoing

document to the Clerk of Court using the ECF System for filing and transmittal of a Notice of

Electronic Filing to the following ECF registrants:

Phillip Craig Bailey

Laura Lea Eakens
Don G Holladay
David Thomas Iski
Martha Ruth Kulmacz
Brently C Olsson
Sandra D Rinehart
Timothy P Studebaker
Kevin Hayden Theriot
Roy Duane Tucker
James E Warner

s/ W. Scott Simpson

W. SCOTT SIMPSON

20