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Case 1:10-cv-08435-BSJ -JCF Document 62

Filed 08/02/11 2 Pages

Case 1:10-cv-08435-BSJ -JCF Document 62-1

Filed 08/02/11 14 Pages

Exhibit A

George A. Chauncey, Ph. D.

July 12, 2011 Page 1

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -------------------------------------EDITH SCHLAIN WINDSOR, in her capacity as Executor of the Estate of CLARA SPYER, Plaintiff, -againstTHE UNITED STATES OF AMERICA, Defendant. -------------------------------------(Caption continued on next page.) 10-CV-8435

DEPOSITION OF GEORGE A. CHAUNCEY, Ph.D.

Tuesday, July 12, 2011

George A. Chauncey, Ph. D.

July 12, 2011 Page 2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Defendants. -------------------------------------OFFICE OF PERSONNEL MANAGEMENT, TIMOTHY F. GEITHNER, in his official capacity as the Secretary of the Treasury, and HILDA L. SOLIS, in her official capacity as the Secretary of Labor, et al., -againstPlaintiffs, Civil Action No. 310 CV 1750 (VLB) UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT -------------------------------------JOANNE PEDERSEN & ANN MEITZEN, GERALD V. PASSARO II, LYNDA DEFORGE & RAQUEL ARDIN, JANET GELLER & JOANNE MARQUIS, SUZANNE & GERALDINE ARTIS, BRADLEY KLEINERMAN & JAMES GEHRE DAMON SAYVOY & JOHN WEISS,

George A. Chauncey, Ph. D.

July 12, 2011 Page 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DEPOSITION OF GEORGE A. CHAUNCEY, Ph.D., a Witness herein, taken by Intervenors, pursuant to Notice, at the offices of Paul, Weiss, Rifkind, Wharton & Garrison LLP, 1285 Avenue of the Americas, New York, New York 10019 on Tuesday, July 12, 2011, at 10:00 a.m., before DEBRA STEVENS, a Registered Professional Reporter and notary public, within and for the State of New York.

George A. Chauncey, Ph. D.

July 12, 2011 Page 12

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. deposition? A.

G. Chauncey No, I am not an attorney. What did you do to prepare for today's

I reviewed the affidavit I submitted, I

the deposition and testimony in Perry.

reviewed some of the materials related to the case and I re-read part of my book on marriage. Oh, I met with counsel yesterday to prepare for the deposition. Q. I would like to ask you some questions You use the

about terminology in the affidavit. term "homosexual." homosexual? A.

How do you define a

I have generally defined "homosexual"

as someone who has an identity based on their sexual attraction to people of the same sex. someone for whom that is a core part of their identity. Q. And you also used the term "gay" How do you define So,

throughout the affidavit. "gay"? A.

I know that some people distinguish

"gay" and "homosexual," but I use them synonymous.

George A. Chauncey, Ph. D.

July 12, 2011 Page 13

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q.

G. Chauncey And you use the term "lesbian" How do you define

throughout the affidavit. "lesbian"? A.

In similar terms, as a woman who

identifies herself on the basis of her sexual attraction to women. Q. Do you know what percentage of the

American population is gay, lesbian or bisexual? A. I don't know. I think that the

estimates that I have seen that seem most authoritative would put it somewhere between 3 and 5 percent or 3 and 4 percent of the population. Q. I don't think it was in the affidavit

but I saw somewhere you used the term "homosociality." What does that mean? Objection to form. You

MS. KAPLAN: can answer. A.

Well, let's see.

"Homosociality" has But as academics

been used in different ways.

use the term, it typically would refer to a social group that is same sex or to patterns of association that are same sex. Q. How does that term differ from

George A. Chauncey, Ph. D.

July 12, 2011 Page 14

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Sorry. A. "homosexuality"? A.

G. Chauncey

There is not necessarily a homoerotic So that American

content to homosociality.

society historically was once more sex-segregated than it is today in everyday life and in politics and business and so forth. So, there were often That

groups of men together and women together.

didn't mean that they were erotically attracted to each other. It was the social organization of

gender at that time. Q. And have you consistently used the

same definition of homosexuality throughout the affidavit? MS. KAPLAN: Just so I understand,

throughout Defendant's 2? MR. DUGAN: Defendant Exhibit 2. Yes.

I believe I have.

I would have to

look -- it depends -- probably in some cases, and I actually don't remember the instances here, but I would distinguish between "homosexual" as a noun, referring again to someone who is distinguished from others on the basis of their primary sexual attraction to people of the same

George A. Chauncey, Ph. D.

July 12, 2011 Page 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

G. Chauncey sex, and "homosexual" as an adjective, which could just describe erotic sexual relations between people of the same sex who do not identify themselves as homosexual. Q. And have you consistently used the

same definition of homosexuality throughout your career? MS. KAPLAN: can answer. A. Well, I have written so many pages on Objection to form. You

this subject I wouldn't say that every single time I used the term I have used it exactly this way. But broadly, this has been the way I have

used these terms. Q. If we can turn to Defendant's You

Exhibit 2, paragraph 2 on the first page?

list some of the cases you have either testified in or been a deposed expert in. Can you just

tell me what kind of case Donaldson v Montana was? A. It was a case in the State of Montana

in which there is a constitutional amendment banning marriage but this is a case seeking relationship -- legal recognition of same sex

George A. Chauncey, Ph. D.

July 12, 2011 Page 34

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

G. Chauncey prohibitions against sodomy and unnatural acts, penalized a wide range of non-procreative behavior, including many forms of what now would be called homosexual conduct." Is it the case that these legislators -- they were not legislating against homosexual acts per se; correct? A. Well, there is -- again, the word

"homosexual" wasn't available to them and so they were operating out of the conceptual framework that I just began to describe. The laws varied. Broadly, the

southern colonies adopted the secular legislation of England, and so they typically criminalized buggery, which included male anal penetration of a woman, a man or a beast, whereas in the puritan colonies in New England, although they certainly penalized a wide range of nonmarital sexual behavior, they were likely -- for instance, in Massachusetts -- to simply quote Leviticus, prohibition against a man lying with another man, and make that a capital offense. Q. You mentioned the British tradition of How did

a secular prohibition against buggery.

George A. Chauncey, Ph. D.

July 12, 2011 Page 48

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

G. Chauncey What are some of the reasons historians have given to explain this? A. Well, one reason that historians have

given for the apparent inconsistency between the vehemence of the denunciation of sodomy from the pulpit and the relatively small number of prosecutions is that -- and we're talking about very small communities and towns in colonial New England in which people's lives were deeply intermeshed. There is some thought that the severity of the punishment -- this is a capital crime -- dissuaded people from pressing charges even if they had some concerns about people; again, people they were closely related to. And some have wondered if the demonization of sodomy was so enormous that it was just hard to connect it to the everyday people they knew in their communities. But again I would stress that this is still an enigma that historians are trying to understand. Q. Turning to paragraph 21 on the same

page, page 9 of Exhibit 2, you write there,

George A. Chauncey, Ph. D.

July 12, 2011 Page 49

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

G. Chauncey starting in the second sentence, "Current historical research suggests that the concept of the homosexual as a distinct category of person developed as recently as the late 19th century. The word 'homosexual' appeared for the first time in a German pamphlet in 1868 and was introduced to the American lexicon only in 1892." Can you explain how this historical process of the idea of the homosexual as a distinct category arose? MS. KAPLAN: can answer. A. We're going to be all day if you want Objection to form. You

me to explain this. Q. A. Can you give the CliffsNotes version? Okay. We'll switch from the graduate

seminar to -MS. KAPLAN: lecture. A. Well, again I will say, as I did Go to the freshman

before, historians think about and write about this question a lot and, so, have pointed to earlier periods in which people seemed to have had persistent interest in people of the same sex

George A. Chauncey, Ph. D.

July 12, 2011 Page 50

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

G. Chauncey without being categorized as homosexuals, those categories being unavailable. Their emergence has been attributed, for instance, to the growth of the medical profession and scientific research, which helped produce and circulate terms of this sort. There

is a general impetus towards classification of people. People have talked about the growth of large cities, in which it was easier for people to separate themselves from the family or household economy and to create lives as lesbians or gay men who lived outside of constraints that they had experienced in small towns. Those would be two of the major factors people have pointed to. Q. What was the nature of the reference

to homosexuality or the term "homosexual" in that 1868 pamphlet? A. I believe this was a pamphlet that

was -- I could be wrong about this since I am not a German historian, which is where this appeared. But I believe this was a pamphlet written in the context of discussions of the sodomy law in

George A. Chauncey, Ph. D.

July 12, 2011 Page 51

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

G. Chauncey Germany or in Prussia. So again it gives us an indication of the degree to which sodomy was -- you know, encompassed more than homosexual conduct. It was

understood as being primarily by this time an anti-homosexual measure. Q. Then how did the word "homosexual"

enter the American lexicon in 1892? A. I believe that it first appeared in an

American medical journal in 1892. Q. Did it take time for "homosexual" to

be recognized as a specific social category in the United States? A. Well, again, we're talking here about Then as

a precise medical or scientific term.

now, there were a wide range of vernacular terms used in the streets: Fairies, pansies --

"lesbian" actually had been used for a time since it drew on classical references to the poetry of Saphho, who lived on the isle of Lesbos. "Homosexual" spread but there were other terms that had similar or related meanings that were probably used more commonly. Q. In that same paragraph you are talking

George A. Chauncey, Ph. D.

July 12, 2011 Page 84

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

G. Chauncey people of Asian descent, women, lesbians and gay men. One would just need to sort of think about

the historical specificity while still recognizing that these groups have all experienced a general pattern of discrimination. Q. At the time of the adoption of the

14th amendment was it illegal for two men to have anal intercourse with each other in every state in the union? A. I believe it was illegal in every

state to have anal intercourse, yes. Q. In the 19th century, was marriage

implicitly understood in America to be the union of one man and one woman? MS. KAPLAN: can answer. A. Well, expectations about what marriage Objection to form. You

meant and who was available to -- who had access to marriage have changed over time, so that I think in the 19th century one could say that it was generally assumed that marriage would involve only a man and a woman. It was also generally

assumed that a black person and a white person could not marry.

Case 1:10-cv-08435-BSJ -JCF Document 62-2

Filed 08/02/11 51 Pages

Exhibit B

Letitia Anne Peplau

June 17, 2011 Page 1

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -------------------------------------EDITH SCHLAIN WINDSOR, in her capacity as Executor of the Estate of CLARA SPYER, Plaintiff, -againstTHE UNITED STATES OF AMERICA, Defendant. -------------------------------------(Caption continued on next page.) 10-CV-8435

DEPOSITION OF LETITIA ANNE PEPLAU, Ph.D.,

Friday, June 17, 2011

Letitia Anne Peplau

June 17, 2011 Page 2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT -------------------------------------JOANNE PEDERSEN & ANN MEITZEN, GERALD V. PASSARO II, LYNDA DEFORGE & RAQUEL ARDIN, JANET GELLER & JOANNE MARQUIS, SUZANNE & GERALDINE ARTIS, BRADLEY KLEINERMAN & JAMES GEHRE, and DAMON SAVOY & JOHN WEISS, 310 CV 1750 Plaintiffs, (VLB) v. OFFICE OF PERSONNEL MANAGEMENT, TIMOTHY F. GEITHNER, in his official capacity as the Secretary of the Treasury, and HILDA L. SOLIS, in her official capacity as the Secretary of Labor, MICHAEL J. ASTRUE, in his official capacity as the Commissioner of the Social Security Administration, UNITED STATES POSTAL SERVICE, JOHN E. POTTER, in his official capacity as The Postmaster General of the United States of America, DOUGLAS H. SHULMAN, in his official capacity as the Commissioner of Internal Revenue, ERIC H. HOLDER, JR., in his official capacity as United States Attorney General, JOHN WALSH, in his official capacity as Acting Comptroller of the Currency, and THE UNITED STATES OF AMERICA, Defendants. --------------------------------------

Letitia Anne Peplau

June 17, 2011 Page 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
DEPOSITION OF LETITIA ANNE PEPLAU, Ph.D., an Expert Witness herein, taken by Defendant, pursuant to Agreement, at the offices of Paul Weiss Rifkind Wharton & Garrison, LLP, 1285 Avenue of the Americas, New York, New York, on Friday, June 17, 2011, at 10:40 a.m., before Margaret Eustace, a Shorthand Reporter and notary public, within and for the State of New York.

Letitia Anne Peplau

June 17, 2011 Page 11

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. Q. A. Q.

L.A. Peplau, Ph.D. Yes, I have. How many times? I have testified twice. Have you ever been excluded as an

expert in a case? A. Q. No. Do you know the plaintiffs in both

these cases? A. Q. A. Q. No, I don't. You have never met any of them? No. I know the answer to this, but I will Are you an attorney?

ask it for the record: A. Q. No.

I would like to go into the question

of sexuality. How do you define homosexuality? Homosexuality isn't actually a term I I would think of it in the terms

would use.

of the broader term of sexual orientation. That is what I addressed in my affidavit. Q. How would you define sexual

orientation? A. I would define sexual orientation as

Letitia Anne Peplau

June 17, 2011 Page 12

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A.

L.A. Peplau, Ph.D. an enduring set of emotional sexual attractions towards men, toward women or toward both. I would as well define sexual orientation as including a person's identity as gay or lesbian or heterosexual or bisexual. And I would also include it under the rubric of sexual orientation related behavior. For

example, forming a relationship with a person of the same sex or of the other sex. Q. Within the definition of sexual

orientation, do you define gay differently from that? MR. BENSON: Object to the form.

I think the term gay is used in a It is one of the sexual

variety of ways.

orientation identity labels that some people might adopt. The term is, I think, most

commonly used with regard to men, but it is sometimes used in a generic way to apply to women as well. Q. A. How would you define lesbian? I think of lesbian as an identity

label or category that would be used for women

Letitia Anne Peplau

June 17, 2011 Page 13

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A.

L.A. Peplau, Ph.D. whose enduring attractions are toward other women. Q. A. How would you define bisexual? Again, I would define it as an

identity label for a person whose emotional and romantic and sexual attraction are towards persons of both sexes. Q. Do different fields of study use

different definitions of sexual orientation? MR. BENSON: Object to the form.

You know, I really am not an expert

on how philosophy or political science or other fields might define sexual orientation. So I don't have a good answer for that question. Q. What about in the social sciences? MR. BENSON: Object to the form.

You know, I am a psychologist, so the

definition of sexual orientation that I use and that I am most familiar with is one that is -- has been used by the American Psychological Association, which is our national professional association, it has been used by them in their educational materials

Letitia Anne Peplau

June 17, 2011 Page 14

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q.

L.A. Peplau, Ph.D. for the public and for practitioners. It is a

widely accepted definition within psychology, but I really couldn't tell you what is a standard sociology definition of sexual orientation would be. MR. DUGAN: this marked Exhibit 3. I am going to have This is the APA

answers to your questions. (APA answers were marked as Defendants' Exhibit 3 for identification.) Dr. Peplau, do you recognize this

document? A. Q. A. Yes. What is this document? It's a document prepared by the It is It has

American Psychological Association. called "Answers to your questions."

been prepared as an educational material by the APA. Q. I direct you to page 2 of this There is a question that says, What

document.

causes a person to have a particular sexual orientation?"

Letitia Anne Peplau

June 17, 2011 Page 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. Q. record.

L.A. Peplau, Ph.D. And I will read this in for the

"There is no consensus amongst scientists about the exact reasons that an individual develops a heterosexual, bisexual, gay or lesbian orientation. Although much

research has examined the possible genetic, hormonal, developmental, social and cultural influences on sexual orientation no findings have emerged that permit scientists to conclude that sexual orientation is determined by any particular factor or factors. Many

think that nature and nuture both play complex roles. Most people experience little or no

choice about their sexual orientation." Do you agree with this? Yes. And is this a consensus for you

amongst scientists? MR. BENSON: Object to the form.

I think it is a widespread view.

There are many ideas here, but in the main, I think the ideas that the causes of sexual orientation are not understood is an idea that

Letitia Anne Peplau

June 17, 2011 Page 16

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. record.

L.A. Peplau, Ph.D. is accepted by many researchers. Q. Would it fair to say that scientists

don't know what causes a particular sexual orientation? A. Q. I will say that. Paragraph 11 of your expert report

you stated -MR. BENSON: Exhibit 2 for the

MR. DUGAN:

Yes.

-- you stated that, "It is well

established that homosexuality is a normal expression of human sexuality." What do you mean by "normal" in that sentence? A. What I really mean is explained in

the following sentence, which says, "It is not a mental illness, and being gay or lesbian has no inherent association with a person's ability to lead a happy, healthy or productive life or to contribute to society." I mean it in that way, that homosexuality is part of a wide array of forms of sexual orientation and that there is

Letitia Anne Peplau

June 17, 2011 Page 18

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A.

L.A. Peplau, Ph.D. one that suggests that unlike some of the past views that linked sexual orientation with mental health that that is a view that psychologists and I no longer accept. Q. I want to go back to the question of

sexual orientation. Is there a difference between sexual orientation and sexual attraction? A. I think sexual orientation is a

fairly broad term that encompasses many components, and attraction would be one of the ingredients of sexual orientation. Q. Do scientists know what percentage of

the American population is homosexual? MR. BENSON: Object to the form.

There are a variety of estimates that

have been made based on research projects. So, for example, in the national representative probability sample by Laumann and others, a project I reference, they used people's sexual orientation identity self-definition of being lesbian, gay or bisexual or heterosexual. And according to their data,

Letitia Anne Peplau

June 17, 2011 Page 19

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A.

L.A. Peplau, Ph.D. somewhere between 1 and 2 percent of women identified as lesbian, and somewhere between 2 and 3 percent of men identified as gay. think that's a reasonable estimate, using self-identification as a measure of sexual orientation. Q. Have these estimates varied And I

throughout time? MR. BENSON: Object to the form.

It is fairly new that we have

estimates based on representative probability samples. And so prior to research by Laumann

and others, there were certainly estimates that were based on nonrepresentative samples and sometimes those estimate were different. Q. A. Q. You cite Dr. Kinsey's work. Yes. I believe he said that -- he had that

famous 10 percent number about homosexuals. Has that number been discredited? MR. BENSON: Yes. Objection to form.

I would say that people have a

better understanding of Kinsey's numbers, that Kinsey's sample of men, just where the number

Letitia Anne Peplau

June 17, 2011 Page 20

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A.

L.A. Peplau, Ph.D. comes from was not representative, and that it is, I think, now widely believed to have been too large a number. Q. Does the percentage of people who

consider themselves homosexual differ in different areas of the country? MR. BENSON: Object to the form.

The data that I know that have

representative samples are not differentiated by region of the country. For instance, the

Laumann data are not differentiated by region, so I don't have a basis for answering that question. Q. The term LGBT, lesbian, gay, bisexual

and transgender, what does that term mean? MR. BENSON: Object to the form.

Sometimes when people are trying to

find a shorthand way to talk about people who are not sort of traditionally heterosexual, they will use acronyms. And I think that's

really just a way of saying here are a set of people. For instance, in many colleges there

might be an LGBT resource center for students, and that would be a center that provided

Letitia Anne Peplau

June 17, 2011 Page 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A.

L.A. Peplau, Ph.D. homosexual acts? MR. BENSON: Object to the form.

Same objection. You know, how I would classify such a

person would depend on the goal of the research project. Researchers who are

interested in studying the transmission of sexually transmitted diseases might be particularly interested in studying men who have sex with men regardless of whether they identify as heterosexual or gay. And a term

that is commonly used for that for those men is men who have sex with men, MSM. Q. birth? MR. BENSON: Objection to form. Can sexual orientation be defined at

What research shows is that people

come to understand their sexual orientation most typically during adolescence, so I would say that looking at a newborn, I would not be able to tell you what that child's sexual orientation is going to be. Q. In paragraph 15 of Exhibit 2, you

describe the continuum of sexual orientation.

Letitia Anne Peplau

June 17, 2011 Page 36

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Q. A. Q. A.

L.A. Peplau, Ph.D. (Copy of paper by Herek Norton Allen and Sims was marked as Defendants' Exhibit 4 for identification.) Do you recognize that, Dr. Peplau? Yes. What is that? This is a copy of the paper by Herek

Norton Allen and Sims that I was referring to in paragraph 25. Q. If I could have you turn to page 186,

which is table 3 of this article. You wrote, "95 percent of gay men experience no choice at all or very little choice about their sexual orientation." Looking at table 3, is it fair to say that nearly 7 percent of gay men felt that they had a small amount of choice in their sexuality and 5.2 percent said that they experienced a fair amount or a great deal of choice in their sexuality? MR. BENSON: Objection to form.

Let me split that up. Is it fair to say that 7 percent of

Letitia Anne Peplau

June 17, 2011 Page 37

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q.

L.A. Peplau, Ph.D. gay men felt that they had a small amount of choice in their sexuality? A. Q. Yes. And is it fair to say that 5.2

percent experienced a fair amount or great deal of choice in their sexuality? A. Q. Yes. With regard to lesbians, doesn't the

study show that 31.6 percent of lesbian women experience a small amount or a fair amount of choice in their sexuality? MR. BENSON: Compound. I will split that up. Does this study show that 15.2 percent of lesbians experience a small amount of choice in their sexual orientation? A. Q. Yes, that's what the study shows. And does this study show that 16.4 Objection to form.

percent of lesbians experience a fair amount or a great deal of choice in their sexual orientation? A. Q. Yes, that's what this study shows. And looking at the last column there,

Letitia Anne Peplau

June 17, 2011 Page 38

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. shows.

L.A. Peplau, Ph.D. on table 3, if one factors in gays, lesbians and bisexuals, both bisexual men and women, isn't it true that 14.2 percent experience a small amount of choice in their sexual orientation? A. Q. Yes, that's what the table shows. Is it true that 25.2 percent

experience a fair amount or a great deal of choice in their sexual orientation? A. So just so I am clear, what we are

doing here is we are adding in bisexuals, who are people who are attracted to both men and women, and when you do that you find that the percent of lumping together lesbians, gay men and bisexuals who report they have a fair amount or a great deal of choice is 25 percent. And, yes, that's what the table

MR. DUGAN:

Mark that Exhibit 5.

(Paper by Greg Herek was marked as Defendants' Exhibit 5 for identification.) Do you recognize Exhibit 5,

Name of Cases: UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK EDITH SCHLAIN WINDSOR, in her capacity as Executor of the Estate of THEA CLARA SPYER, Plaintiff, v. THE UNITED STATES OF AMERICA, Defendant. (10 Civ. 8435) (BSJ) (JCF) UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT JOANNE PEDERSEN & ANN MEITZEN, GERALD V. PASSARO II, LYNDA DEFORGE & RAQUEL ARDIN, JANET GELLER & JOANNE MARQUIS, SUZANNE & GERALDINE ARTIS, BRADLEY KLEINERMAN & JAMES GEHRE, and DAMON SAVOY & JOHN WEISS, Plaintiffs, v. OFFICE OF PERSONNEL MANAGEMENT, TIMOTHY F. GEITHNER, in his official capacity as the Secretary of the Treasury, and HILDA L. SOLIS, in her official capacity as the Secretary of Labor, MICHAEL J. ASTRUE, in his official capacity as the Commissioner of the Social Security Administration, UNITED STATES POSTAL SERVICE, JOHN E. POTTER, in his official capacity as The Postmaster General of the United States of America, DOUGLAS H. SHULMAN, in his official capacity as the Commissioner of Internal Revenue, ERIC H. HOLDER, JR., in his official capacity as United States Attorney General, JOHN WALSH, in his official capacity as Acting Comptroller of the Currency, and THE UNITED STATES OF AMERICA, Defendants. (310-CV-1750) (VLB) Date of Deposition: Name of Witness: Friday, June 17, 2011 Letitia Anne Peplau, Ph.D.

Letitia Anne Peplau Errata Sheet for June 17, 2011 Deposition I wish to make the following changes, for the following reasons:

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33:23 I see against relationships of lesbians and gay men. I seewhere it says, The relationships of lesbians and gay men

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42:1518 All close same sex relationships between friends, relatives, coworkers, acquaintances or others which shall be considered homosexual relationships. Of all close same-sex relationships between friends, relatives, coworkers, acquaintances, or others, which shall be considered homosexual relationships? Transcription error

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51:35 harms not individuals in legal same sex marriage but gay men, lesbians and bisexuals as a group. harm not only individuals in legal same-sex marriages, but gay men, lesbians, and bisexuals as a group. Transcription error

Letitia Anne Peplau Errata Sheet for June 17, 2011 Deposition PAGE LINE: CHANGE FROM: CHANGE TO: REASON: 57:10 no singular theory no single theory Transcription error

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57:14 the interplay biological, the interplay of biological, Transcription error

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59:22 married that the families would accept married that their families would accept Typographical error

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61:7 protection or lesbians protection for lesbians Typographical error

Letitia Anne Peplau Errata Sheet for June 17, 2011 Deposition PAGE LINE: CHANGE FROM: CHANGE TO: REASON: Add Q: Typographical error 63:6

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70:21 I to want pose an objection I want to pose an objection Transcription error

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71:24 will not effect heterosexual will not affect heterosexual Typographical error

Letitia Anne Peplau Errata Sheet for June 17, 2011 Deposition PAGE LINE: CHANGE FROM: CHANGE TO: REASON: 76:8 they in partners are that partners are Transcription error

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80:13 mental harm disparities mental health disparities Transcription error

Letitia Anne Peplau Errata Sheet for June 17, 2011 Deposition PAGE LINE: CHANGE FROM: CHANGE TO: REASON: 81:24 Fingerhut, et al. Paper Fingerhut, et al. paper Typographical error

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96:2 many Americans old many Americans hold Typographical error

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98:14 More the point More to the point Typographical error

Case 1:10-cv-08435-BSJ -JCF Document 62-3

Filed 08/02/11 12 Pages

Exhibit C

Gary M. Segura, Ph. D.

July 8, 2011 Page 1

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -------------------------------------EDITH SCHLAIN WINDSOR, in her capacity as Executor of the Estate of CLARA SPYER, Plaintiff, -againstTHE UNITED STATES OF AMERICA, Defendant. -------------------------------------(Caption continued on next page.) 10-CV-8435

DEPOSITION OF GARY MICHAEL SEGURA, Ph.D.

Gary M. Segura, Ph. D.

July 8, 2011 Page 2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT -------------------------------------JOANNE PEDERSEN & ANN MEITZEN, GERALD V. PASSARO II, LYNDA DEFORGE & RAQUEL ARDIN, JANET GELLER & JOANNE MARQUIS, SUZANNE & GERALDINE ARTIS, BRADLEY KLEINERMAN & JAMES GEHRE, and DAMON SAVOY & JOHN WEISS, 310 CV 1750 Plaintiffs, (VLB) v. OFFICE OF PERSONNEL MANAGEMENT, TIMOTHY F. GEITHNER, in his official capacity as the Secretary of the Treasury, and HILDA L. SOLIS, in her official capacity as the Secretary of Labor, MICHAEL J. ASTRUE, in his official capacity as the Commissioner of the Social Security Administration, UNITED STATES POSTAL SERVICE, JOHN E. POTTER, in his official capacity as The Postmaster General of the United States of America, DOUGLAS H. SHULMAN, in his official capacity as the Commissioner of Internal Revenue, ERIC H. HOLDER, JR., in his official capacity as United States Attorney General, JOHN WALSH, in his official capacity as Acting Comptroller of the Currency, and THE UNITED STATES OF AMERICA, Defendants. --------------------------------------

Gary M. Segura, Ph. D.

July 8, 2011 Page 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DEPOSITION OF GARY MICHAEL SEGURA, Ph.D., an Expert Witness herein, taken by Defendant, pursuant to Agreement, at the offices of Paul Weiss Rifkind Wharton & Garrison, LLP, 1285 Avenue of the Americas, New York, New York, on Friday, July 8, 2011, at 9:15 a.m., before Margaret Eustace, a Shorthand Reporter and notary public, within and for the State of New York.

Gary M. Segura, Ph. D.

July 8, 2011 Page 14

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. answer?

G. Segura questions that attorneys might choose to ask me. And I had a preparation session yesterday

with counsel. MR. DUGAN: Can you read back that

(Record read.) What was the question that was posed

to you for your affidavit? A. The question I was asked to address

was the relative powerfulness or powerlessness of gays and lesbians in the political system. Q. I want to ask about some of the

terminology you use in your affidavit, throughout your affidavit you use the term gay men or gays. How do you define gay? I would define gay as an individual

who has primarily the same sex sexual attraction and has adopted a public persona consistent with that sexual attraction. would distinguish it from homosexual or homosexual acts, which I think is a more complex undertaking. Q. What -- how do you define homosexual? And I

Gary M. Segura, Ph. D.

July 8, 2011 Page 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A.

G. Segura So there is a broad class of

individuals who have same sex sexual attraction. Some individuals have same sex

sexual attraction alongside opposite sex sexual attraction and they are generally referred to as bisexual. But people who have primarily same sex sexual attraction fall into a number of categories. Some have same sex sexual

attraction and never act on it for whatever reason, social convention, religious upbringing, et cetera. They would be, in

terms of orientation, homosexual, but they are not engaging in homosexual acts and I would not classify them as gay. The second category is the more technical one. These are individuals who do

act on their same sex sexual attraction, but, again, for whatever reason, choose not to socially identify as a person of that sort or that type. The Centers for Disease Control,

for example, when looking at STD transmission or HIV transmission, never refers to gay or homosexual. They refer to men having sex with

Gary M. Segura, Ph. D.

July 8, 2011 Page 16

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A.

G. Segura men because that is the clinical activity that they are interested in, whether or not those individuals choose to identify publicly as a gay person or to identify themselves in that community. For gay and lesbian, I am talking about individuals who not only have same sex sexual attraction and act on it but choose to identify it as part of their life structure. Q. I think you hinted at it there, but

when you use the term lesbian, how do you define it? A. A woman with primarily same sex

sexual attraction. Q. Do you know what percentage of the

American population is gay, lesbian or bisexual? MS. KAPLAN: I do not know. So the most recent report I have seen puts the number between 3 and a half and 4 percent for gay men and lesbians. The Objection to form.

research I have read to prior to the most recent report suggests that the rate is uneven

Gary M. Segura, Ph. D.

July 8, 2011 Page 17

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

G. Segura for men and women, that it might be more common among men than women. And for bisexuals, I am less informed. bisexuals. Q. Have you written any articles on the I don't know the percentage of

question of gay and lesbian political power? A. I have written articles on gay and

lesbian issues, and in least in one instance it was specifically on electoral opportunities for gays and lesbians, so I guess that would yes, but not around and abstract notion of political power as that being the entire purpose of the study. Q. Have you taught classes on gay and

lesbian political power? A. Yes. So in the 1990s I taught a

class called either Politics and Homosexuality or Gay and Lesbian Politics, the name was different at different institutions. And in that course, we considered in depth whether or not gays and lesbians possess sufficient political power to protect their basic interests, so this was a very live topic

Case 1:10-cv-08435-BSJ -JCF Document 62-4

Filed 08/02/11 11 Pages

Exhibit D

In The Matter Of:


EDITHSCHLAINWINDSOR v. THEUNITEDSTATESOFAMERICA

___________________________________________________

NANCYF.COTT,PH.D.Vol.1
July6,2011
___________________________________________________

NANCY F. COTT, PH.D. - 7/6/2011 Page 1


UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK - - - - - - - - - - - - - - - - - - x EDITH SCHLAIN WINDSOR, in her capacity as Executor of the estate of THEA CLARA SPYER Plaintiff v. No. 1:10-cv-08435(BSJ)(JCF)

THE UNITED STATES OF AMERICA Defendant - - - - - - - - - - - - - - - - - - x

DEPOSITION of NANCY F. COTT, PH.D. Wednesday, July 6, 2011 9:34 a.m. Gay & Lesbian Advocates & Defenders 30 Winter Street Boston, Massachusetts

Michelle Keegan, Court Reporter

Merrill Corporation - New York 1-800-325-3376 www.merrillcorp.com/law

NANCY F.

COTT, PH.D. - 7/6/2011 Page 2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

A P P E A R A N C E S: GAY & LESBIAN ADVOCATES & DEFENDERS By Mary Bonauto, Esq. 30 Winter Street Boston, Massachusetts 02108 (617) 426-1350 mbonauto@glad.org Counsel for Plaintiffs in Peterson Case

PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP By Andrew J. Ehrlich, Esq. 1285 Avenue of the Americas New York, New York 10019 (212) 373-3166 aehrlich@paulweiss.com Counsel for Plaintiffs in Windsor Case

BANCROFT PLLC By Conor B. Dugan, Esq. 1919 M Street, N.W. Washington, D.C. 20036 (202) 234-0090 cdugan@bancroftpllc.com Counsel for the Defendant

UNITED STATES DEPARTMENT OF JUSTICE By Jean Lin, Esq. Federal Programs Branch 20 Massachusetts Avenue, N.W. Washington, D.C. 20530 (202) 514-3716 jean.lin@usdoj.gov Conusel for the Defendant Also Present: Shira Hoffman Peter Dunne Suzanne Love Ashley Dunn

1-800-325-3376

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NANCY F.

COTT, PH.D. - 7/6/2011 Page 3

1 2 3 4 5 6 7 8 9
No.

I N D E X Videotaped Deposition of: NANCY F. COTT, PH.D. Examination by Mr. Dugan Examination by Mr. Ehrlich Further Examination by Mr. Dugan 4 59 61 Page

E X H I B I T S Page Portion of deponent's CV Deponent's expert affidavit Bibliography Excerpts from deponent's book, "Public Vows" 7 8 8 42

10
Exhibit 1

11
Exhibit 2

12
Exhibit 3

13
Exhibit 4

14 15 16 17 18 19 20 21 22 23 24 25

Original exhibits retained by court reporter

1-800-325-3376

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NANCY F.

COTT, PH.D. - 7/6/2011 Page 17

09:52:19 09:52:24 09:52:31 09:52:36 09:52:36 09:52:41 09:52:44 09:52:47 09:52:47

1 2 3 4 5 6 7 8 9

together. Q I think you talked about the pair, in your Did that pair ever include same-sex

previous answer. couples? A

Not to my knowledge, in the colonial part of

the -- part of North America or at the time of the founding among those who consider themselves part of the new United States. Q Has marriage been a national or federal issue

09:53:02 10 09:53:05 11 09:53:08 12 09:53:08 13 09:53:10 14 09:53:13 15 09:53:15 16 09:53:17 17 09:53:19 18 09:53:23 19 09:53:29 20 09:53:34 21 09:53:43 22 09:53:51 23 09:53:56 24 09:53:59 25

at times during American history? MR. EHRLICH: ambiguous. You can answer. A Q You said a national or a -Let me rephrase. Has marriage been an issue of federal law at times during American history? A Q A Yes, marriage in federal territories. What about marriage among native Americans? Yes, that's a good point, that in dealing with Objection to the form. Vague and

Indians, again, in federal territories and in certain states where the federal government was dealing with the -- with native Americans through the Bureau of Indian Affairs, the form of marriage observed by these populations was of concern to that federal agency, yes,

1-800-325-3376

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NANCY F.

COTT, PH.D. - 7/6/2011 Page 18

09:54:04 09:54:05 09:54:12 09:54:15 09:54:17 09:54:21 09:54:25 09:54:28 09:54:32

1 2 3 4 5 6 7 8 9

and to certain people in congress. Q In the post civil war era, did the federal

government involve itself in the question of the marriage between former slaves? A During the civil war when the South was

occupied and in the very beginning of the post civil war period when the southern states were not yet reconstituted, yes, the federal government through the Freedmen's Bureau concerned itself with marriages of the freed men and women. Q I'd like you to turn to Paragraph 13, page 5 of This is your expert affidavit. I didn't catch which page.

09:54:36 10 09:54:37 11 09:54:55 12 09:54:59 13 09:55:00 14 09:55:05 15 09:55:07 16 09:55:11 17 09:55:14 18 09:55:19 19 09:55:21 20 09:55:25 21 09:55:26 22 09:55:29 23 09:55:30 24 09:55:34 25

Exhibit 2. A Q A Q

I'm sorry.

Page 5, Paragraph 13, right under Section B. Okay. You write there, "What is seen as legitimate

marriage in a given society may be, for instance, polygamous, monogamous, matrifocal or patrifocal, patrilineal or matrilineal, lifelong or temporary, open or closed to concubinage, divorce-prone or divorce-averse," and so on. Are you an expert in marriage and world cultures? A As I said at the outset, I am a specialist in

the history of the United States, but that is studied in

1-800-325-3376

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NANCY F. COTT, PH.D. - 7/6/2011 Page 20 09:57:40 1 09:57:43 2 09:57:46 3 09:57:49 4 09:57:57 5 09:58:02 6 09:58:03 7 09:58:04 8 09:58:06 9 09:58:07 10 09:58:09 11 09:58:09 12 09:58:10 13 09:58:14 14 09:58:21 15 09:58:25 16 09:58:29 17 09:58:38 18 09:58:39 19 09:58:42 20 09:58:47 21 09:58:49 22 09:58:53 23 09:58:53 24 09:58:57 25
A law? MR. DUGAN: That's right. Q to divorce his wife because she was past child-bearing age. Men and women known to be sterile have not been

prevented from marrying, nor could a marriage be annulled for an inability to bear or beget children." What about the case of impotence? been a bar to marriage? MR. EHRLICH: Objection to form. In -Has that

-- in the United States, from the founding

until now. MR. EHRLICH: Under federal law or any state

Federal law, so far as I know, has never dealt Certainly in colonial law there -- in New

with this.

England, yes, impotence or impotency was a reason to dissolve a marriage if there had been no knowledge of that by the partner who was deprived before the marriage. Knowledge that the person he or she was marrying could not engage in sexual intercourse would -if that knowledge was there before the marriage, then the inability was not a cause for dissolving the marriage. Q Does this mean that consummation has been

required to validate marriages in the United States,

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NANCY F.

COTT, PH.D. - 7/6/2011 Page 21

09:59:00 09:59:02 09:59:04 09:59:07 09:59:10 09:59:16 09:59:19 09:59:24 09:59:28

1 2 3 4 5 6 7 8 9

federal or state subdivisions? A Well, certainly federal law has never dealt

with this, so far as I am aware. No, I do not think that consummation has been required. I'm not aware of any law in a state or colony

that required consummation through sexual intercourse for a marriage to be valid. sufficient. Consent was considered

And prior and more important and even the

Christian church from the beginning of the period considered consent more important than consummation to a marriage. Q And in returning to the question of impotence,

09:59:31 10 09:59:34 11 09:59:34 12 09:59:38 13 09:59:40 14 09:59:42 15 09:59:49 16 09:59:55 17 09:59:57 18 10:00:01 19 10:00:15 20 10:00:19 21 10:00:22 22 10:00:26 23 10:00:29 24 10:00:32 25

do you know why impotence has been a grounds for annulment or divorce in American law? A Yes. I believe that it is because sexual It was not

intimacy was assumed to be part of marriage.

required for a marriage, but it was assumed to be part of marriage. Q And that was the reason.

Would you turn to Paragraph 21, which goes from Dr. Cott,

the bottom of page 6 to the top of page 7.

you write, "The notion that the main purpose of marriage is to provide an ideal or optimal context for raising children was never the prime mover in states' structuring of the marriage institution of the United States, and it cannot be isolated as the main reason for

1-800-325-3376

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NANCY F.

COTT, PH.D. - 7/6/2011 Page 28

10:11:15 10:11:18 10:11:21 10:11:38 10:11:40 10:11:43 10:11:44 10:11:46 10:11:49

1 2 3 4 5 6 7 8 9

characteristics and in their skills and in their strengths and weaknesses. Q Yes.

Has monogony been a central part of the

American understanding of marriage? MR. EHRLICH: Objection to the form. At all

points since the founding? MR. DUGAN: At all points since the founding in

the states and in federal law. A Has monogony be a central understanding of what I would say yes.

10:11:52 10 10:11:54 11 10:11:57 12 10:11:58 13 10:12:00 14 10:12:01 15 10:12:02 16 10:12:11 17 10:12:15 18 10:12:23 19 10:12:27 20 10:12:45 21 10:12:49 22 10:12:52 23 10:12:53 24 10:12:55 25

marriage is? Q from?

And where does the concept of monogony come

MR. EHRLICH:

Objection to the form and beyond

the scope of the affidavit. But you can answer if you know. A I believe it is Christianity that has been the

most important philosophical trend in enforcing monogony -- Christianity as compared to Judaism or Islam or Buddhism or other world religions. Q And the understanding of monogony in the United

States from the founding until, let's say, 15 years ago, monogony was understood to be between one man and one woman, correct? MR. EHRLICH: Understanding by whom? Objection to the form.

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NANCY F.

COTT, PH.D. - 7/6/2011 Page 29

10:12:56 10:12:57 10:12:58 10:12:59 10:13:05 10:13:09 10:13:15 10:13:17 10:13:28

1 2 3 4 5 6 7 8 9

Q A Q A 15 years.

The public understanding. The general public understanding? Yes. Yes, although I would put it back more than I would say that really from the 1970s

certain people thought that monogony could -- was appropriate for two people of the same sex, but it wasn't a general majority view. Q I want to paraphrase. I hope I'm accurately

10:13:45 10 10:13:48 11 10:13:54 12 10:14:00 13 10:14:05 14 10:14:07 15 10:14:12 16 10:14:12 17 10:14:15 18 10:14:18 19 10:14:19 20 10:14:20 21 10:14:22 22 10:14:27 23 10:14:32 24 10:14:37 25

paraphrasing your testimony about Christianity's influence in establishing monogony. I think you said it

was a -- sort of the chief philosophical -- not principle but philosophical sort of thread that led to monogony in the west. A yes. Q Does that mean monogony has been the norm in Is that correct?

Well, that valorized or celebrated monogony,

Western society for 2,000 years? MR. EHRLICH: Objection to the form.

Definitely beyond the scope of the affidavit. But if you know, you can answer. A No, not that long. In Roman -- Christian Rome,

for instance, monogony with concubinage was quite typical for elites. history than that. So no, I think it's a much shorter

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Case 1:10-cv-08435-BSJ -JCF Document 62-5

Filed 08/02/11 18 Pages

Exhibit E
(First Part)

Michael E. Lamb, Ph.D.

June 24, 2011 Page 1

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -------------------------------------EDITH SCHLAIN WINDSOR, in her capacity as Executor of the Estate of CLARA SPYER, Plaintiff, -againstTHE UNITED STATES OF AMERICA, Defendant. -------------------------------------UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT -------------------------------------JOANNE PEDERSEN & ANN MEITZEN, GERALD V. PASSARO II, LYNDA DEFORGE & RAQUEL ARDIN, JANET GELLER & JOANNE MARQUIS, SUZANNE & GERALDINE ARTIS, BRADLEY KLEINERMAN & JAMES GEHRE DAMON SAYVOY & JOHN WEISS, Plaintiffs, Civil Action No. -against310 CV 1750 (VLB) OFFICE OF PERSONNEL MANAGEMENT, TIMOTHY F. GEITHNER, in his official capacity as the Secretary of the Treasury, and HILDA L. SOLIS, in her official capacity as the Secretary of Labor, et al., Defendants. -------------------------------------DEPOSITION OF MICHAEL E. LAMB, Ph.D. Friday, June 24, 2011 10-CV-8435

Michael E. Lamb, Ph.D.

June 24, 2011 Page 2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DEPOSITION OF MICHAEL E. LAMB, Ph.D., a Witness herein, taken by Intervenors, pursuant to Notice, at the offices of Paul, Weiss, Rifkind, Wharton & Garrison LLP, 1285 Avenue of the Americas, New York, New York 10019 on Friday, June 24, 2011, at 8:45 a.m., before DEBRA STEVENS, a Registered Professional Reporter and notary public, within and for the State of New York.

Case 1:10-cv-08435-BSJ -JCF Document 62-6

Filed 08/02/11 18 Pages

Exhibit E
(Second Part)

Case 1:10-cv-08435-BSJ -JCF Document 62-7

Filed 08/02/11 2 Pages

Exhibit F