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Religious Tolerance logo

Windsor v. United States lawsuit attempting to have the federal
"Defense of marriage act" (DOMA) declared unconstitutional

2011/12: BLAG's failure to respond criticized.
New York State's Attorney General files brief.

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This topic is a continuation of an earlier essay

The acronym SSM refers to "same-sex marriage"

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2011-JUL-11: Plaintiff's lawyers criticize BLAG's "Failure to Respond:"

Edit Windsor's lawyers filed a complaint with Judge James Francis -- the magistrate judge who is overseeing the discovery or evidentiary portion of her case. They were critical of the Bipartisan Legal Advisory Group's (BLAG) lack of response to their request.

Roberta Kaplan of Paul, Weiss, Rifkind, Wharton & Garrison LLP, discussed:

"... the obligations that come with party status include good faith participation in and compliance with the discovery process. ... In attempting to justify its failure to respond, BLAG has not objected on the ground that plaintiffs requests seek information that is not relevant or is not reasonably calculated to lead to the discovery of admissible evidence. Nor has BLAG identified any substantial burden in responding to plaintiffs requests. Rather, BLAG appears to have simply made the tactical decision that it would prefer not to respond substantively to plaintiffs requests for written discovery. This, however, the Federal Rules of Civil Procedure do not permit.

The ACLU's legislative representative, Ian Thompson, said:

"It simply defies logic that on the eve of a landmark congressional hearing that will explore how a federal law has led to the discriminatory treatment of tens of thousands of gay and lesbian couples and their families that the House BLAG can't even admit that there has been a long, and very well-documented history of discrimination against lesbians and gay men in this country."

"Further ... they refuse to admit that lesbians and gay men have been denied jobs and other opportunities in the U.S. as a result of their sexual orientation. Have they never heard of Executive Order 10450, which was signed by President Eisenhower in 1953, and had the result of requiring the termination of all gay people from federal employment?" 1

The "B" in "BLAG" stands for "bipartisan," which is a bit of a joke.  The committee itself is bipartisan because it contains three Republcans and two Democrats. But it is definitely non-bipartisan in action, becuase all of its decisions are believed to have been by a vote of 3 to 2, strictly along party lines.

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2011-JUL-26: NY Attorney General's office files amicus curiae declaration:

New York Attorney General Eric Schneiderman, and other members of his office, filed an amicus curiae (friend of the court) brief at the U.S. District Court for the Southern District of New York in Manhattan. 2,3 Supporting Edith Windsor's case, the brief says that the Defense of Marriage Act (DOMA) violates the rights of same-sex married couples to receive equal protection from the federal government. It is in conflict with the fifth amendment of the U.S. Constitution, and is thus unconstitutional. The brief argues that DOMA intrudes upon the traditional right of state to regulate marriage. It says in part:

"New York enacted the Marriage Equality Act, ... which allows same-sex couples to marry in New York. This statute represents the next step along a path on which New York long ago embarked, the path of extending equal treatment under law to same-sex couples. ..."

"Despite the long-standing tradition of state control over the definition of marriage, Section 3 of DOMA redefines marriage for federal purposes to exclude same-sex marriages that are valid under state law. ... By discriminating among married couples based on [their] sexual orientation and sex, DOMA deprives New York [State] of the ability to extend true equality to all marriages valid in the State. ... By refusing to recognize for federal purposes marriages that are valid under state law, DOMA intrudes on matters historically within the control of the States, and undermines and denigrates New York’s law designed to ensure equality of same-sex and different-sex married couples. Thus DOMA threatens basic principles of federalism. Moreover, it classifies and determines access to rights, benefits, and protections based on sexual orientation, and also based on sex."

"For each of these reasons, considered separately or together, DOMA should be subjected to heightened scrutiny under the equal protection component of the Fifth Amendment, and it cannot withstand such scrutiny. ... DOMA fails such heightened constitutional scrutiny because it discriminates between same-sex married couples and different-sex married couples without serving any important federal interest, and therefore violates the equal protection component of the Fifth Amendment. ..."

"Moreover, a statute is unconstitutional even under rational-basis review if it reflects 'a bare congressional desire to harm a politically unpopular group.' ... DOMA falls squarely within this category because Congress sought to harm married same-sex couples, and therefore the Court should invalidate DOMA under any applicable standard of review. ..."

"Section 3 of DOMA does not merely determine eligibility for a particular federal program. It literally redefines the term marriage, and it does so in a blunt, across-the-board manner that has no connection to the particular contexts in which federal laws rely on marital status. This interferes with New York’s exercise of its sovereign authority to define marriage and to eliminate discrimination based on sexual orientation. ..."

"... the Supreme Court [has] recognized that since the creation of the Constitution -- more than 200 years before the passage of DOMA -- the definition of marriage was within the province of the States ... Until DOMA, federal law generally treated the definition of marriage as a subject within the control of the States. ..."

"In sum, DOMA does not advance any legitimate governmental interest. It cannot survive the scrutiny that is warranted because of the groups that it disadvantages and because of the intrusion on an area that is at the heart of state sovereign power. Accordingly, it must be invalidated as a violation of the equal protection component of the Fifth Amendment’s Due Process Clause. ... This Court should grant plaintiff’s motion for summary judgment and declare section 3 of DOMA unconstitutional." 3,4,5

He also explained why the Tenth amendment of the U.S. Constitution is relevant in this case:

"Although plaintiff has not raised a Tenth Amendment claim in her complaint, principles of federalism should inform this Court’s review of her equal-protection claim as well. Federalism protects not merely the interests of state governments, but also individual liberty: 'By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power.' [Bond v. United States, 131 S. Ct. 2355, 2364 (2011)]. The power of Congress is at its lowest when it seeks to discourage States from enacting statutes, like the Marriage Equality Act, that are at the core of the States’ sovereignty. In analyzing the validity of the Gun-Free School Zones Act under the Commerce Clause, Justice Kennedy instructed that '[A]t the least we must inquire whether the exercise of national power seeks to intrude upon an area of traditional state concern.' [United States v. Lopez, 514 U.S. 549, 580 (1995) (Kennedy, J., concurring)]. So too here, the analysis of the statute must take into account that it intrudes on an area of traditional state concern." 6,7

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This topic continues...

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Chris Geidner, "Edith Windsor's Lawyers Slam BLAG's 'Failure to Respond' in DOMA Challenge," Metro Weekly, 2011-JUL-19, at:
  2. "New York challenges Defense of Marriage Act," Reuters, 2011-JUL-26, at:
  3. Eric T. Schneiderman, et al., "Brief for the State of New York as Amicus Curiae in support of the plaintiff," NY Attorney General's office, 2011-JUL-26, at: This is a PDF file.
  4. Chris Geidner. "One State, Two Lawsuits. Empire State marriage opponents and supporters head to court," Metro Weekly, 2011-JUL-28, at:
  5. Thomas Kaplan, "New York Challenges U.S. Defense of Marriage Act," City Room blog, New York Times, 2011-JUL-26, at:
  6. Chris Geidner, "New York Attorney General Takes Edith Windsor's Side in DOMA Challenge," Metro Weekly, 2011-JUL-26, at:
  7. Simon Heller, "Brief for the State of New York as Amicus Curiae in support of the plaintiff," 2011-JUL-26, at:

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Home > Religious info. > Basic > Marriage > SSM > SSM menu > DOMA > Declared unconstitutional > Windsor v. U.S. > here

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Copyright © 2011 and 2012 by Ontario Consultants on Religious Tolerance
Originally written: 2011-JUL
Latest update: 2012-NOV-26
Author: B.A. Robinson

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