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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA __________________________________________ ) COZEN OCONNOR, P.C., ) ) Plaintiff, ) ) No. 2:11-cv-00045 v. ) ) Judge: C. Darnell Jones, II JENNIFER J. TOBITS, et al., ) ) Defendants, ) ) BIPARTISAN LEGAL ADVISORY GROUP OF ) THE U.S. HOUSE OF REPRESENTATIVES, ) ) Intervenor. ) __________________________________________) SUR-REPLY MEMORANDUM OF THE BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES IN OPPOSITION TO JENNIFER TOBITSS MOTION TO STRIKE Ms. Tobitss reply memorandum in support of her never-filed motion to strike, see ECF No. 132 (Aug. 7, 2012) (Reply), appears to concede that materials cited by the House go to legislative facts. Other than this, her Reply adds little to the analysis except misinformation. The first of Ms. Tobitss contentionsthat the Houses briefing should be limited to discussing the allegations in the pleadings, see Reply 2-3requires little response. The Court surely knows what kind of briefing it will find helpful at this stage, and so Ms. Tobitss attempts to educate the Court about what its own order meant are beside the point. The balance of Ms. Tobitss Reply argues that (1) the materials cited by the House are too complicated or unreliable for the Court to consider as legislative facts, and (2) those materials are not cognizable as a matter of law because they were published after DOMA was enacted. Neither contention has an ounce of merit.

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I.

The Houses Citations Go to Classic Issues of Legislative Fact and Are Wholly Reliable. Ms. Tobits appears to concede that the materials cited by the House go to issues of

legislative fact, and that it is entirely in the Courts power to consider them. Reply 3 & n.2. She can hardly do otherwise: During the pendency of her motion, the Court of Appeals for the First Circuit accepted very similar citations by the House in another DOMA case, noting in passing that its review was informed by background information as to legislative purpose and legislative facts bearing upon the rationality or adequacy of distinctions drawn by statutes. Such information is normally noticed by courts with the assistance of briefs, records and common knowledge. Massachusetts v. HHS, 682 F.3d 1, 7 (1st Cir. 2012) (internal citation omitted). Although Ms. Tobits correctly notes that the legislative-facts doctrine gives the Court discretion whether to consult or rely on these sources, id. (quoting Fed. R. Evid. 201(a) Adv. Committees Note)), she cites no authority supporting the notion that such citations should or even can be stricken from the record. Instead, Ms. Tobits now limits herself to arguing that the Court should not give weight to the Houses citations. Reply 3 (emphasis omitted). This by itself should end the matter: If the dispute no longer is about whether the Court can consider these materials at all, but simply how persuasive it should find them after considering them, then they self-evidently should not be stricken. Nevertheless, Ms. Tobits offers an extended critique of the substance of the sources cited by the House which amounts, in essence, to this: The Court should disregard the Houses contentions regarding legislative facts simply because Ms. Tobits and others disagree with those contentions. Reply 3-7. But this reflects a misunderstanding of the cases on which Ms. Tobits relies, of the inquiry the Court must engage in if it determines that DOMAs constitutionality is

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at issue in this case, and indeed of the sources cited by the House. Ms. Tobitss contention that only generally accepted truths should be recognized as legislative facts, Reply 4, contradicts longstanding judicial practice. The Houses opposition to the motion to strike referred to numerous cases where the Supreme Court and other courts found legislative facts that were not at all generally accepted truths and indeed likely were contested by the parties to the case. See House Strike Opp. 6-7, ECF No. 98 (Jan. 4. 2012). Ms. Tobits does not and cannot deny this. Indeed, she cites only one case that even superficially supports her contention regarding generally accepted truths. But on closer examination, even Landell v. Sorrell, 382 F.3d 91, 135 n.24 (2d Cir. 2004), revd and remanded sub nom. Randall v. Sorrell, 548 U.S. 230 (2006), tells squarely against Ms. Tobits. As is reflected in the footnote she relies on, in Landell the Second Circuit declined to resolve disputed legislative facts . . . on an insufficiently developed record on appeal. 382 F.3d at 135 n.24. But its solution was to remand so the district court could make these very same findings of legislative fact, giving absolutely no indication that the district court was required to follow formal rules of evidence in doing so. See id. at 135 & 136 n.24, 148. Indeed, the dissenting judge in Landell assume[d] that the majority did not contemplate that the district court will take testimony , resolve credibility issues, and find facts on these issues. id. at 205 (Winter, J., dissenting), and the majority said nothing to the contrary. Perhaps most tellingly, the Landell majority itself relied on at least one law review article in assessing the effects of campaign fundraising pressures on the quality of democratic representationforeclosing any argument that broader, less generally accepted questions are somehow inherently unsuited for legislative fact-finding. See id. at 123 (majority opinion) (quoting Vincent Blasi, Free Speech and the Widening Gyre of Fund-Raising: Why Campaign Spending Limits May Not Violate the First Amendment After All,

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94 Colum. L. Rev. 1281, 1282-83 (1994)). 1 Even if the complexity of the issues had any bearing on whether the Houses citations should be stricken (which it does not), the real inquiry the Court must undertake here is not nearly as complex as Ms. Tobits suggests. As the House has explained, on rational-basis review the Court need notindeed must notinquire whether a preponderance of the evidence demonstrates the truth of the facts on which a law is predicated. Instead, the statute must be upheld unless those challenging the legislative judgment convince the court that the legislative facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decisionmaker. Vance v. Bradley, 440 U.S. 93, 111 (1979) (emphasis added). So it simply is not relevant that the materials the House has cited are controverted, even strongly, unless it is downright irrational to agree with these sources. And under this standard, or indeed under any standard, Ms. Tobitss narration of her disagreement with the sources cited by the House is so riddled with factual inaccuracies that it cannot demonstrate that the Houses citations are too unreliable for the Courts consideration. For instance, Ms. Tobits encourages this Court to conclude, as other courts have, that [certain] sources either have no indicia of reliability or that [the House] and the Farleys have distorted and mischaracterized them such that they are unusable in this case. Reply 7. But she provides no citation for her assertion that other courts have come to this conclusion, because she cannot: Most of the other cases cited by Ms. Tobits merely give examples of legislative factfinding that are fully consistent with this case. FEC v. National Conservative PAC, 470 U.S. 480, 499-500 (1985), demonstrates only that sometimes a party will not cite enough evidence to support a given finding of legislative fact that it advocatesit certainly does not say or suggest that the citations themselves should be disregard[ed], as Ms. Tobits argues. See Reply 4 n.3. Likewise, in United States v. Gould, 536 F.2d 216, 220 (8th Cir. 1976), the court noted that legislative facts do not change from case to case but apply universally, while adjudicative facts are those developed in a particular case. The determinants of whether sexual orientation is a suspect class, or whether there is a rational basis for DOMA, will apply universally and are not likely to change from case to case.
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The House has intervened in fourteen cases involving DOMA Section 3; in none of those cases has the court concluded that any authority cited by the House is unusable, should not be considered, or should be stricken from the record. 2 Ms. Tobits also asserts that at least two authors of the sources [the House has] cites have filed affidavits in other cases adamantly opposing [the House]s characterization of their findings. Reply 6. But she identifies only one such author, Lisa Diamond (whose criticism the House has refuted earlier, see House Strike Opp. 14-15). The House is aware of no other, and Professor Diamonds declarations in the Windsor case suggest that she disagrees with the House regarding the legal implications of her research because she uses a different definition of sexual orientation. Professor Diamond agrees that many people experience fluidity in same-sex and opposite-sex attraction over their lifetimes, but she contends that a persons capacity to experience homosexual attractions is an immutable characteristic for equal protection purposes even during periods of attraction to the opposite sex. Supp. Decl. of Lisa M. Diamond, Windsor v. United States, No. 10-cv-8435 (S.D.N.Y. Sept. 15, 2011) (ECF No. 86), attached as Ex. A. This does nothing to establish that her work is unreliable or that the Houses citation to it is untrustworthy. It only demonstrates that Professor Diamond thinks the courts should use her own definition of sexual orientation, upon which the House has not relied. Another wellrespected researcher in the fieldwho has been retained as an expert by numerous plaintiffs challenging DOMAapparently was using a different definition when she cited Professor Diamonds research as demonstrating that multiple changes in sexual orientation are possible A few courts have disagreed with the House about the legal or factual import of some of these sourcesalthough none of those opinions had issued when Ms. Tobits filed her proposed Reply in January. E.g., Pedersen v. OPM, No. 10-cv-1750, 2012 WL 3113883 (D. Conn. July 31, 2012); Windsor v. United States, 833 F. Supp. 2d 394 (2012); Golinski v. U.S. OPM, 824 F. Supp. 2d 968 (N.D. Cal. 2012). None of those courts have refused to consider the materials, let alone actually stricken them from the record.
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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)). Ms. Tobits also claims more generally that the Houses sources have been disproven or heavily discredited by later research. Reply 6. But again, her support for this is not only inadequate, but demonstrably inaccurate: In support of this contention, Ms. Tobits only cites to a paid experts affidavit in another DOMA case, which affidavit addresses a work (by Dr. Norval Glenn) that the House did not cite either in this case or the case in which the affidavit was originally offered. See id. Things get no better when Ms. Tobits attempts to discredit a specific source. Discussing an article by Dr. Stanley Kurtz regarding marriage in Scandinavia, Ms. Tobits states that these sources [sic] have been thoroughly discredited in other cases. Reply 8. 3 But she identifies not a single instance in which Dr. Kurtzs work (or the other works discussed in Part C of her reply, if she means to refer to them as well) has been criticized in the least in any litigation, much less discredited. 4 The result is that Ms. Tobits has offered exactly zero cognizable support for her accusations that the Houses sources have been disproven or discredited. Ms. Tobitss discussion of Dr. Kurtzs article is equally untrustworthy. She claims that

As an initial matter, of course, the House did not cite to this article directly, but rather to the Congressional Record in which Congress took note of the article. The fact that Ms. Tobitss position regarding the law of evidence would require the Court to use a redacted version of the Congressional Record should be enough by itself to refute it. Nearly seven months after Ms. Tobits filed her proposed Reply, the district court in Pedersen found that the Kurtz article did not provide a rational basis for DOMAbut contrary to Ms. Tobitss request to exclude the article from the record here, the court did so only after an extensive consideration of the substance of Kurtzs findings. 2012 WL 3113883 at *38-39.
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the most the author [i.e., Dr. Kurtz] could state was that an undesired social consequence arguably occurred. Reply 8 n.7 (providing no attribution for quotation marks). But the word arguably does not appear in Dr. Kurtzs article, which actually opens as follows: Marriage is slowly dying in Scandinavia. A majority of children in Sweden and Norway are born out of wedlock. Sixty percent of first-born children in Denmark have unmarried parents. Not coincidentally, these countries have had something close to full gay marriage for a decade or more. Same-sex marriage has locked in and reinforced an existing Scandinavian trend toward the separation of marriage and parenthood. The Nordic family patternincluding gay marriage is spreading across Europe. And by looking closely at it we can answer the key empirical question underlying the gay marriage debate. Will same-sex marriage undermine the institution of marriage? It already has. Stanley Kurtz, The End of Marriage in Scandinavia, Wkly. Standard, Feb 2, 2004 at 1, reprinted in 150 Cong. Rec. S8003 (daily ed. July 13, 2004). 5 Finally, the only DOMA court to consider a request to strike materials similar to Ms. Tobits squarely rejected that request. In Windsor v. United States, No. 10-cv-8435 (S.D.N.Y. Aug. 29, 2012), the plaintiff made virtually the same arguments that Ms. Tobits makes here. Far from declining to consider the challenged evidence, the Windsor court sought additional information from the plaintiff on the same topics. Id. Ms. Tobitss suggestion that the Windsor courts denial of the request to strike the Houses citations was based on something other than its lack of merit, see Reply 2 n.1, is wholly unsupported and implausible. In sum, even if Ms. Tobitss disagreement with the materials cited by the House were based on an accurate understanding of those materials (which it is not), the mere fact of her

The House itself has stated that this article provides, at a minimum, an arguabl[e] basis for Congress to conclude that same-sex marriage has had some deleterious impacts in Scandinaviawhich it certainly does, and which is all that is required under rational basis review. House Strike Opp. at 13. But the notion that his conclusions are merely arguabl[e] cannot be attributed to Dr. Kurtz, as Ms. Tobits doesand it certainly should not be characterized as the most [he] could state. Reply 8 n.3.

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disagreement would not remotely require, or even warrant, this Courts striking them from the record. But in fact, her contentions that the materials are unreliable or discredited are so poorly supported that they amount to nothing more than bare expressions of dislike for the Houses briefing. Accordingly, there is no basis on which anything can be stricken. II. A Rational Basis for A Statute Can Be Demonstrated by Materials Published at Any Time, Not Only Before the Statutes Enactment. For the first time in her Reply, Ms. Tobits has adopted a novel and radical theory regarding rational-basis review. Claiming that it is impossible that Congress could have

considered arguments not yet made at the time it passed certain legislation, Reply 7, she maintains that the House cannot cite, and the Court cannot consider, materials created after DOMAs passage in order to determine if there is a rational basis for it. See Reply 7-8. This argument appears to be premised on the wholly incorrect notion that any rational basis supporting a law must actually have been considered by Congress. This clearly is wrong as a matter of black-letter law. Under rational-basis review, a statute is valid if there is any reasonably conceivable state of facts that could provide a rational basis for it. FCC v. Beach Commcns, Inc., 508 U.S. 307, 313 (1993) (emphasis added). [A] legislative choice may be based on rational speculation unsupported by evidence or empirical data, and it is entirely irrelevant for constitutional purposes whether the conceived reasons for the challenged distinction actually motivated the legislature. Id. at 315. The legislature need not actually articulate at any time the purpose or rationale supporting its classification. Heller v. Doe, 509 U.S. 312, 320 (1993) (citation and quotation marks omitted). See also Houses Mem. Re Constitutionality of DOMA at 39-42 (Dec. 2, 2011) (ECF No. 71); Houses Resp. Mem. Re Constitutionality of DOMA at 2-4, 7, 8 n.3 (Dec. 21, 2011) (ECF No. 89). There simply is no doctrinal room for a rule that Congress must actually have considered the rational basis in

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question. But for the Houses citations to be improper here, Ms. Tobits would have to do even more than overturn this cornerstone of rational-basis jurisprudence: She also would have to persuade the Court that the rationality of the government interests actually considered by the Congress that enacted DOMA cannot be supported by any materials published post-enactment. As the House has explained, in enacting DOMA Congress expressly stated its concern with promoting responsible childrearing and preserving traditional marriage, among other issues. See Houses Mem. Re Constitutionality of DOMA 7-8, Dec. 2, 2011 (ECF No. 71). Several of the citations that Ms. Tobits complains of, see Reply 7-8, demonstrate that the same concerns remain relevant now by referring to post-enactment materials that clarify why mothers and fathers (preferably biological ones) are both important for children, and by referencing Congress own post-enactment recognition that legal recognition for same-sex relationships in Scandinavia may have contributed to a decline in marriage generally there. Far from being simply irrelevant to Congress actions in 1996 as Ms. Tobits strangely claims, Reply 8, these materials demonstrate precisely why Congress concerns in 1996 were rational, both then and now. Indeed, Ms. Tobits has herself cited post-enactment articles in an attempt to disprove the rational bases articulated by the House. See Tobitss Resp. to Supp. Brs. 13 n.6 (Dec. 21, 2011) (ECF No. 92) (citing M.V. Lee Badgett, Will Providing Marriage Rights to Same-Sex Couples Undermine Heterosexual Marriage?, 1.3 Sex. Res. & Soc. Poly J. 1, 8 (Sept. 2004); William Eskridge & Darren Spedale, Gay Marriage, For Better or For Worse? (2006)). And she has argued that DOMA does not further another of the rational bases put forward by the House (cost savings) because, she contends, the predicate facts on which Congress passed DOMA later turned out to be false. Id. at 10 (referring to a 2004 report by the Congressional Budget Office; also citing United States v. Carolene Prods. Co., 304 U.S. 144, 153 (1938) ([T]he

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constitutionality of a statute predicated upon the existence of a particular state of facts may be challenged by showing to the court that those facts have ceased to exist.)). It would be bizarre indeed, and wholly unworkable, if rational-basis review meant that a plaintiff attacking a statute could resort to the full range of post-enactment materials in an attempt to demonstrate that the concerns that motivated the statute are inaccurate or have become irrational since its enactment, while the courts were required to strike from the record any post-enactment citations offered by the statutes defenders demonstrating that those same concerns were and remain relevant. III. No Further Briefing Is Necessary or Desirable. Perhaps recognizing that her request to have the Houses citations stricken cannot succeed, Ms. Tobits reiterates her request to file yet more briefing on the merits of DOMA Section 3s constitutionality. Reply 8-9. But she already has had 40 pages to respond to the Houses and the other briefing in this case, including, as we have explained, to address the very citations she now complains of. As the Court is aware, this case already has given rise to dozens of briefs by parties, intervenors, and amici. Allowing Ms. Tobits yet another brief is neither necessary nor warranted. CONCLUSION For all the foregoing reasons, as well as those stated in the Houses Opposition to Ms. Tobitss memorandum, the Court should deny Ms. Tobitss motion to strike.

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Respectfully submitted, /s/ H. Christopher Bartolomucci Paul D. Clement H. Christopher Bartolomucci Nicholas J. Nelson Michael H. McGinley BANCROFT PLLC 1919 M Street, N.W., Suite 470 Washington, D.C. 20036 202/234-0090 (phone); 202/234-2806 (fax) Counsel for Intervenor-Defendant the Bipartisan Legal Advisory Group of the U.S. House of Representatives 6 Of Counsel: Kerry W. Kircher, General Counsel William Pittard, Deputy General Counsel Christine Davenport, Senior Assistant Counsel Todd B. Tatelman, Assistant Counsel Mary Beth Walker, Assistant Counsel OFFICE OF GENERAL COUNSEL, U.S. HOUSE OF REPRESENTATIVES 219 Cannon House Office Building Washington, D.C. 20515 202/225-9700 (phone); 202/226-1360 (fax) Dated: September 27, 2012

The Bipartisan Legal Advisory Group, which speaks for the House in litigation matters, is currently comprised of the Honorable John A. Boehner, Speaker of the House, the Honorable Eric Cantor, Majority Leader, the Honorable Kevin McCarthy, Majority Whip, the Honorable Nancy Pelosi, Democratic Leader, and the Honorable Steny H. Hoyer, Democratic Whip. The Democratic Leader and the Democratic Whip decline to support the filing of this sur-reply.

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CERTIFICATE OF SERVICE I hereby certify that on September 27, 2012, I electronically filed the foregoing Memorandum in Support of Motion of Defendant-Intervenor the Bipartisan Legal Advisory Group of the U.S. House of Representatives for Leave to File A Sur-Reply in Opposition to Jennifer Tobitss Motion to Strike with the Clerk of the Court for the U.S. District Court for the Eastern District of Pennsylvania using the CM/ECF system. I further certify that all parties in this case are registered CM/ECF users and will be served by the CM/ECF system.

/s/ H. Christopher Bartolomucci H. Christopher Bartolomucci

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