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JAMES R. MCGUIRE (CA SBN 189275) JMcGuire@mofo.com GREGORY P. DRESSER (CA SBN 136532) GDresser@mofo.com RITA F. LIN (CA SBN 236220) RLin@mofo.com AARON D. JONES (CA SBN 248246) AJones@mofo.com MORRISON & FOERSTER LLP 425 Market Street San Francisco, California 94105-2482 Telephone: 415.268.7000 Facsimile: 415.268.7522 JON W. DAVIDSON (CA SBN 89301) JDavidson@lambdalegal.org SUSAN L. SOMMER (pro hac vice) SSommer@lambdalegal.org TARA L. BORELLI (CA SBN 216961) TBorelli@lambdalegal.org LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 3325 Wilshire Boulevard, Suite 1300 Los Angeles, California 90010-1729 Telephone: 213.382.7600 Facsimile: 213.351.6050 Attorneys for Plaintiff KAREN GOLINSKI UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

KAREN GOLINSKI, Plaintiff, v. UNITED STATES OFFICE OF PERSONNEL MANAGEMENT, and JOHN BERRY, Director of the United States Office of Personnel Management, in his official capacity, Defendants.

Case No.

3:10-cv-0257-JSW

PLAINTIFFS REPLY TO BIPARTISAN LEGAL ADVISORY GROUPS SUPERSEDING OPPOSITION TO HER MOTION FOR SUMMARY JUDGMENT Date: Time: Dept.: Judge: December 16, 2011 9:00 a.m. Courtroom 11 Hon. Jeffrey S. White

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TABLE OF CONTENTS Page TABLE OF AUTHORITIES........................................................................................................ ii

4 SUMMARY OF ARGUMENT.....................................................................................................v 5 LEGAL STANDARD ...................................................................................................................1 6 ARGUMENT ................................................................................................................................2 7 I. 8 9 10 11 12 C. 13 D. 14 II. 15 III. 16 IV. 17 18 A. 19 B. 20 C. 21 22 23 24 25 CONCLUSION ...........................................................................................................................15 26 27 28
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HIGH TECH GAYS POSES NO BARRIER TO SUBJECTING DOMA TO HEIGHTENED SCRUTINY, WHICH IS THE CORRECT LEVEL OF REVIEW FOR LAWS THAT DISCRIMINATE ON THE BASIS OF SEXUAL ORIENTATION. ...............................................................................................................2 A. B. There Is a Long History of Discrimination Against Lesbians and Gay Men........3 Sexual Orientation Bears No Relation to the Ability to Contribute to Society. ..................................................................................................................3 Sexual Orientation Is a Fundamental, Enduring Aspect of Ones Identity. ..........4 Lesbians and Gay Men Remain a Politically Vulnerable Minority. .....................6

DOMA DISCRIMINATES BASED ON PLAINTIFFS SEX. ........................................7 DOMA INFRINGES ON PLAINTIFFS FAMILY AUTONOMY. ................................8 EVEN IF RATIONAL BASIS REVIEW APPLIED, THE UNDISPUTED EVIDENCE ESTABLISHES THAT DOMA DOES NOT RATIONALLY ADVANCE ANY LEGITIMATE GOVERNMENT INTEREST....................................9 Rational Basis Scrutiny Should Be Particularly Searching Here. .........................9 DOMA Cannot Be Justified as a Rational Act of Caution. .............................10 The Denial of Equal Spousal Health Coverage Cannot Be Justified as an Attempt to Promote Responsible Procreation..................................................12 1. The Undisputed Evidence Shows that There Is No Basis to Conclude that Different-Sex Parents Are Superior to Same-Sex Parents. ....................................................................................................12 There Is No Rational Basis to Believe that DOMA Will Cause Heterosexuals to Procreate More Responsibly. ...................................14

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TABLE OF AUTHORITIES Page(s)

Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982) ................................................................................................... 3 Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) .................................................................................................................. 6 Addisu v. Fred Meyer, Inc., 198 F.3d 1130 (9th Cir. 2000) ................................................................................................... 1 Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912 (9th Cir. 2001) ..................................................................................................... 1 Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356 (2001) ................................................................................................................ 15 Bowers v. Hardwick, 478 U.S. 186 (1986) .................................................................................................................. 3 Christian Legal Socy Chapter of the Univ. of Cal. v. Martinez, 130 S. Ct. 2971 (2010) .............................................................................................................. 5 City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) ............................................................................................................ 6, 15 Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632 (1974) .................................................................................................................. 8 Collins v. Brewer, 727 F. Supp. 2d 797 (D. Ariz. 2010) ......................................................................................... 9 Diaz v. Brewer, 656 F.3d 1008 (9th Cir. 2011) ........................................................................................... v, 3, 9 Dragovich v. U.S. Dept of Treasury, 764 F. Supp. 2d 1178 (N.D. Cal. 2011)..................................................................................... 8 Frontiero v. Richardson, 411 U.S. 677 (1973) .............................................................................................................. 4, 7 Gill v. Office of Pers. Mgmt., 699 F. Supp. 2d 374 (D. Mass. 2010).......................................................................... 10, 11, 14 Hernandez-Montiel v. INS, 225 F.3d 1084 (9th Cir. 2000) ................................................................................................... 5 High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563 (9th Cir. 1990) ............................................................................................passim

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In re Golinski, 587 F.3d 901 (9th Cir. 2009) ..................................................................................................... 8 Karouni v. Gonzalez, 399 F.3d 1163 (9th Cir. 2005) ............................................................................................... 5, 6 Lawrence v. Texas, 539 U.S. 558 (2003) .........................................................................................................passim Lazy Y Ranch LTD v. Behrens, 546 F.3d 580 (9th Cir. 2008) ..................................................................................................... 1 Lofton v. Kearney, 157 F. Supp. 2d 1372 (S.D. Fla. 2001).................................................................................... 13 Lofton v. Secy of the Dept of Children & Family Servs., 358 F.3d 804 (11th Cir. 2004) ........................................................................................... 13, 14 Loving v. Virginia, 388 U.S. 1 (1967) .................................................................................................................. 7, 8 Lui v. Holder, No. 2:11-cv-01267-SVW (JCGx) (C.D. Cal. Sept. 28, 2011)................................................... 3 Lyng v. Castillo, 477 U.S. 635 (1986) ................................................................................................................. 4 Mass. Bd. of Ret. v. Murgia, 427 U.S. 307 (1976) .................................................................................................................. 4 Mathews v. Diaz, 426 U.S. 67 (1976) .............................................................................................................. 9, 10 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) .................................................................................................................. 1 McLaughlin v. Florida, 379 U.S. 184 (1964) .................................................................................................................. 7 Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003) (en banc) ..................................................................................... 2 Moore v. City of E. Cleveland, 431 U.S. 494 (1977) .................................................................................................................. 8 Perry v. Proposition 8 Official Proponents, 587 F.3d 947 (9th Cir. 2009) ..................................................................................................... 3 Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010)................................................................................... 2, 7 Romer v. Evans, 517 U.S. 620 (1996) .........................................................................................................passim

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U.S. Dept of Agric. v. Moreno, 413 U.S. 528 (1973) .................................................................................................................. 1 United States v. Virginia, 518 U.S. 515 (1996) .................................................................................................................. 6 Weinberger v. Wiesenfeld, 420 U.S. 636 (1975) ................................................................................................................ 15 Williams v. Vermont, 472 U.S. 14 (1985) .................................................................................................................. 15 Witt v. Dept of Air Force, 527 F.3d 806 (9th Cir. 2008) ............................................................................................... 8, 14 STATUTES 8 U.S.C. 1186a(b)(1) .................................................................................................................. 11 42 U.S.C. 416 ............................................................................................................................. 11 Morrill Anti-Bigamy Act, ch. 126, 1, 12 Stat. 501 (1862) ......................................................... 11 OTHER AUTHORITIES

14 15 16 17 18 H.R. Rep. No. 104-664 (1996), reprinted in 1996 U.S.C.C.A.N. 2905 .......................................... 8 19 Bureau of Indian Affairs, FAQ, http://www.bia.gov/FAQs/index.htm ........................................ 11 20 21 22 23 24 25 26 27 28
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Adam P. Romero, The Williams Institute, Census Snapshot, (December 2007), available at http://www.policyarchive.org/handle/10207/bitstreams/18082.pdf ................................... 14 Fed. R. Civ. P. Rule 26(a)(2) ............................................................................................................................. 1 Rule 37(c)(1) ............................................................................................................................. 1 Rule 56 ...................................................................................................................................... 1

M.V. Lee Badgett, Will Providing Marriage Rights to Same-Sex Couples Undermine Heterosexual Marriage? ......................................................................................................... 14 William Eskridge & Darren Spedale, Gay Marriage, For Better or For Worse? (2006)............. 15

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SUMMARY OF ARGUMENT The Ninth Circuit recently upheld an order preliminarily enjoining an Arizona law, agreeing that the law likely violates equal protection by denying family health coverage to samesex life partners. Diaz v. Brewer, 656 F.3d 1008 (9th Cir. 2011). DOMAs denial of equal spousal health coverage is similarly unjustified. BLAG cannot escape heightened scrutiny by relying on High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563 (9th Cir. 1990), a case whose reasoning has been significantly undermined. Because lesbians and gay men contribute equally to society, but have traditionally been subjected to discrimination, laws targeting them are constitutionally suspect. Though BLAG points to limited legislative gains, Plaintiffs unrebutted expert testimony demonstrates that gay people still face significant political barriers and remain vulnerable to the majoritarian political process. BLAGs assertion that sexual orientation is not immutable does not alter that analysis. Immutability has never been a requirement for heightened scrutiny, but the evidence on which BLAG relies only confirms that, for the overwhelming majority of gay people, sexual orientation is the type of core trait one should not be forced to change in order to escape discrimination. DOMA is subject to heightened scrutiny because it discriminates on the basis of sexual orientation and sex and burdens the fundamental interest in family autonomy. DOMA, however, cannot survive even rational basis review, let alone heightened scrutiny. Though BLAG insists that DOMA is an act of caution, state marriage law has gone through many other unprecedented, contested changes, such as the development of no-fault divorce, without federal intervention. BLAG identifies no legitimate basis to single out the marriages of same-sex couples for special caution. Nor can DOMA be justified as encouraging responsible procreation. Overwhelming evidence establishes that same-sex parents are just as capable as heterosexual parents. BLAG cannot cite a single empirical study to the contrary. And, regardless, there is no rational basis to believe that denying rights to same-sex couples will cause more heterosexuals to marry or have children. To the contrary, by denying federal recognition to the relationships of numerous same-sex married couples that are raising children, DOMA harms those children and undermines the connection between marriage and childrearing.
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LEGAL STANDARD On summary judgment, once the moving party has met its initial burden, the opposing party must demonstrate specific facts . . . from which a reasonable jury could return a verdict in its favor. Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 919 (9th Cir. 2001) (citations omitted). It is not enough to show some metaphysical doubt as to the material facts, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986), or [a] scintilla of evidence or evidence that is merely colorable or not significantly probative. Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). That Rule 56 standard governs regardless of the level of scrutiny applicable here. Lazy Y Ranch LTD v. Behrens, 546 F.3d 580, 590-91 (9th Cir. 2008) (under rational basis review, our circuit has allowed plaintiffs to rebut the facts underlying defendants asserted rationale for a classification, to show that the challenged classification could not reasonably be viewed to further the asserted purpose).1 BLAG does not dispute the material facts regarding the discrimination suffered by Ms. Golinski. Nor does it present any evidence supporting its factual assertions about DOMA. Plaintiffs expert testimony demonstrates that DOMA carries all the hallmarks of a law subject to heightened scrutiny. (Dkt. 142 at 5-10.) Ms. Golinski also introduced expert testimony showing that, even if the Court were to apply rational basis review, DOMA could not rationally be deemed to promote responsible procreation and childrearing, or indeed any legitimate governmental interest at all. (Id. at 12-14.) BLAG admits that discovery [is] complete in this matter (Dkt. 168-3 3), but offers no rebuttal expert testimony, or any other admissible evidence, on any material issues. Instead, BLAG merely cites a handful of articles outside the record that do not rebut or undermine Plaintiffs undisputed expert evidence. If this case were to proceed to trial, BLAG would have no evidence to present. See Fed. R. Civ. P. 26(a)(2) and 37(c)(1).

See also Romer v. Evans, 517 U.S. 620, 632-33 (1996) (even in the ordinary equal protection case calling for the most deferential of standards, challenged law must be narrow enough in scope and grounded in a sufficient factual context to ascertain some relation between the classification and the purpose it served); U.S. Dept of Agric. v. Moreno, 413 U.S. 528, 53338 (1973) (examining closely whether an exclusion regarding unrelated household members constituted a rational effort to minimize fraud in the programs administration).
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BLAGs approach appears to be a calculated effort to shield its assertions from the adversarial process of expert disclosure and deposition, where such arguments have fared poorly in the past. See Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 944-52 (N.D. Cal. 2010) (finding testimony offered by proponents of Proposition 8 on similar topics to be unreliable). For example, in Perry, the Proposition 8 proponents initially designated Professor Loren Marks, upon whom BLAG relies here (Dkt. 174 at 24), as an expert, but withdrew him after plaintiffs filed a Daubert challenge objecting to his qualifications to testify about child adjustment. Id. (See Reply Declaration of Rita Lin (Lin Decl.) Ex. A.)2 BLAGs attempt to short-circuit that process here betrays a fundamental lack of evidence supporting its position. ARGUMENT HIGH TECH GAYS POSES NO BARRIER TO SUBJECTING DOMA TO HEIGHTENED SCRUTINY, WHICH IS THE CORRECT LEVEL OF REVIEW FOR LAWS THAT DISCRIMINATE ON THE BASIS OF SEXUAL ORIENTATION. Heightened scrutiny applies to DOMAs unabashed discrimination on the basis of sexual orientation. BLAG incorrectly asserts that High Tech Gays requires application of only rational basis review. As the Ninth Circuit emphasized in Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003) (en banc), district courts are not governed by earlier appellate precedent that has been undercut by higher authority to such an extent that it has been effectively overruled by such higher authority. Id. at 899. Plaintiff already has explained how High Tech Gays reasoning has been undercut by the Supreme Court. (Dkt. 133 at 8-9, 12; Dkt. 154 at 2-4.) BLAGs invocation of non-binding district court decisions, including one vacated on this very point, does not justify

Though BLAG cites Professor Marks as criticizing the research on child adjustment described by Plaintiffs experts, Professor Marks admitted in deposition in Perry that his primary research interest is in faith and families, and that he does not study the specific concept of child adjustment. (Lin Decl. Ex. B, Marks Dep. at 53:21-54:17, Oct. 30, 2009.) He has never conducted any original research on families headed by lesbian or gay parents or published writings or articles in the press discuss[ing] children raised by lesbian or gay parents. (Id. at 58:3-12.) He further admitted that he formed his beliefs about the ideal family structure before doing any research and, indeed, before graduating from college. (Id. at 275:5-22.)
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disregarding that Supreme Court authority.3 (Dkt. 174 at 5.) And, contrary to BLAGs assertion, Lawrence v. Texas, 539 U.S. 558 (2003), and Romer v. Evans, 517 U.S. 620 (1996), did not analyze this question. Since Lawrence overturned Bowers v. Hardwick, 478 U.S. 186 (1986), no federal appellate court has examined meaningfully the appropriate level of review (Dkt. 133 at 9 n.4), and the question thus remains open.4 A. There Is a Long History of Discrimination Against Lesbians and Gay Men.

BLAG expressly does not dispute that lesbians and gay men have been subjected to a history of discrimination (Dkt. 174 at 6); nor could it. See Perry v. Proposition 8 Official Proponents, 587 F.3d 947, 954 (9th Cir. 2009) (a party would be hard pressed to deny that gays and lesbians have experienced discrimination in the past in light of the Ninth Circuits ruling in High Tech Gays); High Tech Gays, 895 F.2d at 573; Dkt. 145 at 6-13.5 BLAG misleadingly quotes from Plaintiffs expert historian to quibble about the precise vintage of the discrimination, but does not deny that this crucial prong of the heightened scrutiny analysis is met.6 B. Sexual Orientation Bears No Relation to the Ability to Contribute to Society.

BLAG conflates the second factor for determining if heightened scrutiny applies to laws targeting gay peoplewhich asks the broad question whether sexual orientation overall bears a relation to the ability to contribute to societywith the specific question whether DOMA itself furthers any legitimate government goals. (Dkt. 174 at 7.) BLAGs argument goes to whether

For example, Lui v. Holder, No. 2:11-cv-01267-SVW (JCGx) (C.D. Cal. Sept. 28, 2011), recognized that its ruling arose in the immigration context and distinguished nonimmigration DOMA challenges. Slip Op. at 5 n.7. Plaintiff also has explained why Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982), upon which Lui relies, is not controlling. (See Dkt. 133 at 7-8.) Contrary to BLAGs representation, Diaz is the latest Ninth Circuit opinion to leave this question open. 656 F.3d at 1012 (We do not need to decide whether heightened scrutiny might be required.). BLAG has elsewhere admitted that, for much of the twentieth century, gay people have been subjected to significant discrimination. (Lin Decl., Exs. C & D, at Nos. 22-27.) Plaintiffs expert, Professor Chauncey, testified at his deposition that there was a long history of hostility to the behavior that would come to be identified with gay people, and twentieth century discrimination drew on that history of vilification. (Lin Decl., Ex. E, Chauncey Dep. at 53:11-25, July 12, 2011.) Professor Chauncey also was clear that this discriminatory treatment continues to the present day. (Id. at 29:14-30:5.)
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DOMA can survive equal protection scrutiny (which DOMA cannot), not to the level of scrutiny applicable to any classification based on sexual orientation. Heightened scrutiny indicia are tested with respect to the general characteristics of the targeted group, not with respect to any particular law. See, e.g., Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (finding that the sex characteristic frequently bears no relation to ability to perform or contribute to society, not with respect to the challenged statutes, but as a general matter). BLAG leaves unchallenged the scientific consensus that sexual orientation implies no impairment in judgment, stability, reliability, or general social or vocational capabilities. (Dkt. 142 at 7 (quoting the American Psychological Association); see also Peplau Decl., Dkt. 137 11-12, 29-33.) C. Sexual Orientation Is a Fundamental, Enduring Aspect of Ones Identity.

Immutability of a trait is not a prerequisite for heightened scrutiny, as demonstrated by the application of such scrutiny to discrimination based on religion, legitimacy, and alienage.7 Regardless, BLAG introduces no dispute of material fact that sexual orientation is indeed a core, defining aspect of ones identity. BLAG admits that sexual orientation is a significant component of ones personality (Lin Decl., Ex. F at No. 8) and stable in many people (Id. Exs. C & D at No. 50).8 These are the very characteristics the Ninth Circuit has cited in holding that the sexual identities of gay people are so fundamental to their human identities that they Though BLAG asserts that heightened scrutiny requires a showing of immutability and political powerlessness (Dkt. 174 at 5-6), the case law contradicts that view. (Dkt. 142 at 6-7; Dkt. 133 at 14 n.13.) See, e.g., Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 313 (1976) (focusing on history of discrimination and ability to contribute to society as most important factors and holding that heightened scrutiny is appropriate where a group has been saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to . . . a position of political powerlessness) (internal quotation marks and citation omitted) (emphasis added). BLAG makes no attempt to distinguish that case law. Instead, the sole authority on which BLAG relies undercuts its point. Lyng v. Castillo, 477 U.S. 635, 638 (1986) (holding that close family members do not exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group; and they are not a minority or politically powerless) (emphasis added); High Tech Gays, 895 F.2d at 573 (same). BLAG further admits that [m]ost adults are attracted to and form relationships with members of only one sex (id., Exs. C & D at No. 53); [t]he significant majority of adults exhibit a consistent and enduring sexual orientation (id., No. 54); there is an absence of evidence for the effectiveness of efforts to change a persons sexual orientation (id., No. 55); [n]o major mental health professional organization has approved interventions to change sexual orientation (id., No. 56); and it likely would be psychologically harmful to force lesbians or gay men to deny a core part of their identity (id., No. 58).
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should not be required to change them. See Karouni v. Gonzalez, 399 F.3d 1163, 1173 (9th Cir. 2005), quoting Hernandez-Montiel v. INS, 225 F.3d 1084, 1093-94 (9th Cir. 2000), overruled in part on other grounds, Thomas v. Gonzales, 409 F.3d 1177 (9th Cir. 2005). BLAG claims that the authorities on which it relies conflict with High Tech Gays (Dkt. 174 at 7-8), but, as Plaintiff already has explained, the Supreme Court definitively has rejected High Tech Gays reasoning (Dkt. 154 at 4-5). Compare High Tech Gays, 895 F.2d at 573 (Homosexuality is not an immutable characteristic; it is behavioral . . . .), with Christian Legal Socy Chapter of the Univ. of Cal. v. Martinez, 130 S. Ct. 2971, 2990 (2010) (rejecting attempt to characterize gay people only by their behavior). Christian Legal Society renders High Tech Gays unsound on this point, and Hernandez-Montiel and Karouni control instead. BLAG claims that the terms lesbian and gay do not describe a particular class. (Dkt. 174 at 9.) But surely the Supreme Court understood the class of people it considered in Romer, Lawrence, and Christian Legal Societyand so did Congress when it targeted gay people for differential treatment under DOMA. (See Dkt. 133 at 2-3, quoting from DOMAs legislative history.) BLAGs point that newborns do not exhibit a sexual orientation also is inapposite. Of what constitutional significance is the fact that sexual orientation is not plain on the face of an infant, when most people come to understand their sexual orientation during adolescence? (Dkt. 174 at 9; Lin Decl. Ex. G, Peplau Dep. at 25:18-23, June 17, 2011; Further Peplau Decl. 7.) BLAG attempts to compensate for its failure to introduce its own expert evidence by selectively quoting from three articles (Dkt. 174 at 9-10)with the result that Professor Diamond, the author of two of them, has submitted a declaration describing how BLAG misrepresents her work. (Diamond Decl. 6-13.) Both Professors Diamond and Peplau clarify that the third article BLAG cites, by Nigel Dickson (Dkt. 174 at 10), does not conflict with their conclusions about the immutability of sexual orientation. (Diamond Decl. 12; Further Peplau Decl. 6.)9 Even the BLAG cites an article discussed at Professor Peplaus deposition suggesting that some percentage of gay people report having choice with respect to their sexual orientation (Dkt. 174 at 9; Dkt. 175-2, Ex. B), but Professor Peplau testified that what these respondents meant was unclear, and that they could have been reporting that they chose to accept rather than try to suppress their same-sex attractions. (Lin Decl. Ex. G, Peplau Dep. at 101:2-18.)
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statistics BLAG misleadingly quotes demonstrate that for the vast majority of gay people, sexual orientation is a fundamental, core trait of the type protected under heightened scrutiny standards from discriminatory government treatment. See Karouni, 399 F.3d at 1173. D. Lesbians and Gay Men Remain a Politically Vulnerable Minority.

Though BLAG relies heavily on High Tech Gays, subsequent Supreme Court decisions have so eroded High Tech Gays analysis of political powerlessness as to render it unsound. 895 F.2d at 574. Even when decided, High Tech Gays could not be reconciled with the Supreme Courts analysis of race- and sex-based classifications. (Dkt. 133 at 12-13; see also Dkt. 145 at 16.) But since then, the Supreme Court has noted that lesbians and gay men constitute a politically unpopular group, Romer, 517 U.S. at 634 (quotation marks and citation omitted), and reaffirmed the application of heightened scrutiny for race- and sex-based classifications despite further political progress achieved by those groups. United States v. Virginia, 518 U.S. 515, 524 (1996); Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995). BLAG introduces nothing to rebut the evidence from Plaintiffs expert Professor Segura, showing that a pervasive lack of formal anti-discrimination protections and modest successes in remediating existing discriminationat least some of which remain dependent on the whim of a governing majority and subject to reversaldemonstrate that lesbians and gay men continue to suffer discrimination unlikely to be soon rectified by legislative means, City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985). (Segura Decl., Dkt. 138 23-44.) Though BLAG cites some examples of lesbians and gay mens purported political power, those exceptions simply prove the rule. As Professor Segura explained, the repeal of Dont Ask, Dont Tell faced long delays and virulent opposition, and even now, some presidential candidates and House majority members have vowed to reinstate that law. (Id. 23, 32.) BLAG offers nothing to rebut that testimony.10 BLAGs reference to marriage rights offered to

By its own terms, the DOJs position on DOMA is not a political calculation, but an assessment of the constitutionality of DOMA. (Dkt. 133 at 1 n.1.) Though BLAG cites a letter from a gay advocacy group to the President on the topic, that letter was sent nearly two years before the President announced his current position. (Lin Decl. Ex. H, Segura Dep. at 166:16(Footnote continues on next page.) PLAINTIFFS REPLY TO BLAGS SUPERSEDING OPP. TO SUMMARY JUDGMENT CASE NO. 3:10-CV-0257-JSW sf-3060180

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same-sex couples in a handful of states and second-class statuses offered in some others (Dkt. 174 at 13, 15) runs headlong into BLAGs earlier acknowledgment that [u]ndeniably . . . same-sex marriage jurisdictions remain a small minority in this country. (Dkt. 119-1 at 17.) California had been one of them, and despite spending (marginally) more money (Dkt. 174 at 15), the gay community was powerless to stave off a substantial margin of voter approval for Proposition 8. Because Plaintiffs expert does not rely on the extreme assumption that in no place, at no time have gay people won any outcome (Segura Decl., Dkt. 138 21), BLAG introduces no dispute of material fact.11 II. DOMA DISCRIMINATES BASED ON PLAINTIFFS SEX. BLAG admits that Plaintiff would qualify for spousal coverage if she were a man but is denied that important compensation as a woman. (Lin Decl., Ex. I, RFA No. 1.) That is sex discrimination. Perry, 704 F. Supp. 2d at 996. BLAGs principal response is to argue that DOMA was intended to distinguish between same-sex and opposite-sex relationships, and therefore does not discriminate on the basis of sex itself. (Dkt. 174 at 18 (emphasis in original).) Plaintiff already has demonstrated that this argument contravenes Supreme Court precedent. (Dkt. 133 at 16; Dkt. 142 at 10.) Loving v. Virginia, 388 U.S. 1 (1967), explains that a classification prohibiting interracial relationships discriminates based on race. Id. at 2 (prosecution based on a marriage); see also McLaughlin v. Florida, 379 U.S. 184, 195-96 (1964) (statute unconstitutionally prohibited an individual from cohabiting with a partner of another race). The same principles apply here. See Frontiero, 411 U.S. at 678-79 (overturning a statute that discriminated by virtue of female servicemembers marriage). BLAGs only response is that Loving overturned a law premised on white supremacy. (Dkt. 174 at 18.) But Loving made clear
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167:13, July 8, 2011.) Moreover, BLAGs intervention in this litigation confirms the continued political strength of those seeking to block any repeal of DOMA. On this issue too BLAG already has admitted a number of relevant facts: lesbians and gay men continue to face obstacles to rectifying their unequal treatment in the United States through the political process (Lin Decl., Ex. F at No. 9); [l]ike other minority groups, gay men and lesbians often must rely on judicial decisions to secure equal rights (Lin Decl., Exs. C & D at No. 32); and [t]he fact that sexual orientation is not a visible trait has undermined gay men and lesbians ability to mobilize and exercise meaningful political power (id. at No. 79).
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that even a neutral, even-handed state purpose could not excuse discrimination, 388 U.S. at 12 n.11, and rejected the notion that the mere equal application of a statute . . . is enough to remove the classification[] from the ambit of equal protection. Id. at 8. BLAG cannot escape that DOMA prohibits equal coverage for Ms. Golinski by virtue of the fact that she is a woman, rather than a man, married to a woman. III. DOMA INFRINGES ON PLAINTIFFS FAMILY AUTONOMY. BLAG cannot dispute that the courts long have recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment, Moore v. City of E. Cleveland, 431 U.S. 494, 499 (1977), and that gay people possess an equal liberty interest in such personal spheres. Lawrence, 539 U.S. at 574. BLAGs primary argument appears to be that Plaintiffs claim does not merit heightened review. (Dkt. 174 at 19-20.) BLAG ignores, however, the binding authority that answers this question. See Witt v. Dept of Air Force, 527 F.3d 806, 818-19 (9th Cir. 2008) (holding that Lawrence requires heightened scrutiny of laws burdening same-sex relationships). A law need not bar a family relationship or tear it asunder to intrude in a manner warranting heightened scrutiny. A penalty that burdens only a government privilege can impermissibly infringe. See Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 640 (1974) (mandatory maternity leave can constitute a heavy burden); In re Golinski, 587 F.3d 901, 904 (9th Cir. 2009) (Kozinski, C.J., EDR proceeding) (Plaintiffs monthly cost for private insurance exceeded the small fine at issue in Lawrence). Indeed, the claim that DOMA does not burden such a relationship is particularly disingenuous when that is exactly what DOMA seeks to do by repudiating Plaintiffs marriage for all federal purposes (Golinski Decl., Dkt. 143 14-16). See H.R. Rep. No. 104-664 at 12, 16 (1996), reprinted in 1996 U.S.C.C.A.N. 2905, at *2916, *2920 (DOMA was intended to convey moral disapproval of homosexuality, and Congress was not supportive of (or even indifferent to) the notion of same-sex marriage). Regardless, DOMA cannot survive the rational basis review that is required, at a minimum, to decide any due process claim. See Dragovich v. U.S. Dept of Treasury, 764 F. Supp. 2d 1178, 1192 (N.D. Cal. 2011).

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IV.

EVEN IF RATIONAL BASIS REVIEW APPLIED, THE UNDISPUTED EVIDENCE ESTABLISHES THAT DOMA DOES NOT RATIONALLY ADVANCE ANY LEGITIMATE GOVERNMENT INTEREST. In Diaz, the Ninth Circuit recently held that a state law granting health coverage to

spouses of heterosexual state employees while denying such coverage to same-sex life partners likely violates equal protection. 656 F.3d at 1014-15. The court determined that it need not evaluate whether heightened scrutiny applied because the challenged law was not rationally related to furthering [legitimate government] interests. Id. at 1015. In so holding, the Ninth Circuit affirmed the district courts conclusion that denial of benefits to same-sex domestic partners cannot promote marriage. Id. at 1014; see also Collins v. Brewer, 727 F. Supp. 2d 797, 806 (D. Ariz. 2010) (rejecting the states argument that the law would further the long-standing and well-recognized government interest in favoring marriage). That reasoning applies with equal force here, and confirms the conclusions of three district courts that have held DOMA fails rational basis review. (Dkt. 133 at 20.) A. Rational Basis Scrutiny Should Be Particularly Searching Here.

The Supreme Court has repeatedly emphasized that a more searching form of rational basis review applies to a law, such as DOMA, that targets a politically unpopular group or inhibits personal relationships. Lawrence, 539 U.S. at 579-80 (OConnor, J., concurring) (collecting cases). (See also Dkt. 133 at 18-19 (collecting cases).) Offering no authority to the contrary, BLAG baldly asserts that [r]ational basis is rational basis. (Dkt. 174 at 20.) Then, in an about-face, BLAG cross-references the argument in its motion to dismiss reply brief that a less stringent version of rational basis should apply because DOMA involves line-drawing. (Dkt. 150 at 17-19.) In addition to undermining its own assertion that there is supposedly only one form of rational basis scrutiny, BLAG fundamentally misconstrues what constitutes linedrawing. As explained in the principal case on which BLAG relies, line-drawing measures are those where differences between the eligible and the ineligible are differences in degree rather than differences in the character of their respective claims. Mathews v. Diaz, 426 U.S. 67, 83-84 (1976). Mathews found that Congress rationally required five years of continuous residency for Medicare eligibility, though the line could just as easily have been drawn at six years or four. Id.
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at 69. DOMA does not involve such differences in degree along a continuum. Congress accepted without question all the various lines states have drawn around marriage (such as age of eligibility to marry), but carved out a single exception to the otherwise unitary class of valid statelaw marriages in order to exclude lesbian and gay couples alone. That is a deliberate act of exclusion, not just line-drawing. As such, it is subject to more, not less, searching review. B. DOMA Cannot Be Justified as a Rational Act of Caution.

DOMA fails any level of rational basis scrutiny, let alone the searching review required. Though BLAG asserts that DOMA can be justified as an exercise in caution about what a future with married same-sex couples might hold (Dkt. 174 at 21), BLAG identifies no reason why this evolution in state marriage law could legitimately be viewed with any greater caution than other controversial changes over the years. At best, this is an argument that, some day, a rational basis may surface to justify DOMA, even if none exists today. Nothing in equal protection law, however, permits the government to single out a disfavored group for discrimination today, based solely on the hope that a legitimate excuse might materialize tomorrow. See Gill v. Office of Pers. Mgmt., 699 F. Supp. 2d 374, 390-94 (D. Mass. 2010). Indeed, the Supreme Court has rejected that view. In Romer, the state characterized the law as a response to the deeply divisive issue of homosexuality and claimed to need leeway to handle matters calmly over time. (Lin Decl. Ex. J (No. 94-1039, Brief for Petitioners at 47 (April 21, 1995)).) The Court disagreed, finding no rational basis for the law. Romer, 517 U.S. at 635-36. Even if a wait-for-a-basis-to-develop approach were rational, marriages of same-sex couples were untested when DOMA was enacted only because states historically discriminated against gay people by refusing to recognize their unions. (Dkt. 150 at 24.) That discrimination no longer prevails in a growing number of jurisdictions, and in any event, historic discrimination is a basis for striking down DOMA, not enshrining prejudice in federal law. (See Dkt. 133 at 23.) Regardless, there is nothing cautious about DOMAs radical departure from the federal governments longstanding deference to state marriage law. BLAG attempts to downplay this long-established deference by arguing that up until the eve of DOMA, there was general uniformity in those states laws. (Dkt. 174 at 21.) That assertion ignores the undisputed history
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of marriage law. As explained in the unrebutted testimony of Plaintiffs expert Professor Nancy Cott, state marriage laws have undergone radical shifts in highly divisive contexts. For decades, interracial marriage was an issue that bitterly divided the states, with some recognizing those marriages and others not. (Cott Decl., Dkt. 135 57.) Similarly, in the 1960s, states began for the first time to permit no-fault divorce, a previously unprecedented approach in this country and the subject of great social debate. (Id. 58-63.) The federal government continued to defer to states during these unprecedented, hotly contested shifts in state marriage law, and has continued to do so in every respectexcept when it comes to the sex of the spouses. (Id. 37-38, 40-41, 43-44.) See Gill, 699 F. Supp. 2d at 392. BLAGs assertion that the federal government has involved itself in marriage law in three isolated instances only serves to reinforce this point.12 (Dkt. 174 at 21-22.) As Professor Cott has explained, the federal government addressed marriage in those three situations only because no state was regulating marriage. First, BLAG cites the Morrill Anti-Bigamy Act, ch. 126, 1, 12 Stat. 501, 501 (1862), in which Congress banned polygamy in the Utah Territory. Congress, however, deliberately enacted this statute before Utah became a State, recognizing that it would have no power to define or regulate marriage in Utah once it obtained statehood. (Cott Decl., Dkt. 135 78-79.) Second, BLAG references Civil War era actions by Union military and reconstruction authorities to promote marriages of former slaves. In that instance, when Confederate states crumbled, Union authorities took steps in the occupied South (where state legislatures had not yet been reconstituted) to permit ex-slaves to marry, a right they had been denied. (Id. 75-76.) Then, [o]nce state governments were reconstituted, the [Union] gave up its unusual authority, and Southern states resumed their jurisdiction over marriage law, subject however to the authority of the Fourteenth Amendment. (Id. 77.) Third, BLAG points to BLAG also references an argument in its motion to dismiss reply brief that some federal statutes require more than just a valid state-law marriage to obtain benefits. (Dkt. 150 at 28.) For example, some couples must be married for at least one year to obtain certain Social Security benefits. See 42 U.S.C. 416. Immigration law discounts marriages entered solely to obtain immigration status. 8 U.S.C. 1186a(b)(1). Those statutes do not purport to create a federal definition of marriage. Rather, they impose requirements in addition to marriage to further particular legislative goals.
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unidentified actions of the Bureau of Indian Affairs in connection with certain tribes, which are subject to special sovereignty rules and are not governed by the states. See, e.g., Bureau of Indian Affairs, FAQ, http://www.bia.gov/FAQs/index.htm (describing the federal governments unique relationship with Indian tribes). BLAGs examples only highlight DOMAs extraordinary nature. BLAG also insists that DOMA merely preserves Congresss intent to limit marriage to heterosexual couples in all federal statutes. BLAG, however, still cannot cite any legislative history indicating that Congress intended the word spouse in the Federal Employee Health Benefits Act (FEHBA), the statute at issue here, to be so limited. To the contrary, FEHBAs legislative history indicates a desire that benefits evolve with state law. (See Dkt. 133 at 22 n.19.) BLAG continues to offer no response to this point. The undisputed evidence is that DOMA broke new ground by, for the first time, overriding state marriage determinations. Though BLAG protests that this argument confuses novelty and irrationality (Dkt. 174 at 21), it is BLAG that has attempted to justify DOMA as a purported act of caution. Caution is hardly a rational basis for a wholly unprecedented law. C. The Denial of Equal Spousal Health Coverage Cannot Be Justified as an Attempt to Promote Responsible Procreation. 1. The Undisputed Evidence Shows that There Is No Basis to Conclude that Different-Sex Parents Are Superior to Same-Sex Parents.

Plaintiffs expert Professor Michael Lamb has testified that it is beyond scientific dispute that same-sex married couples are nothing less than equally capable parents. (Lamb Decl., Dkt. 136 14.) The author of the principal article on which BLAG relies concedes that Professor Lamb is an expert and an authority in the field. (Lin Decl. Ex. B, Marks Dep. at 69:7-16.) Professor Lamb cites over 50 peer-reviewed empirical studies regarding same-sex parenting undertaken over the past 30 years, all of which have unanimously concluded that there is no basis to find same-sex parents to be inferior. (Id. 29-32.) BLAG offers no expert testimony to the contrary or a single empirical study reaching a different conclusion. Instead, BLAG points to three snippets of articles shown to Professor Lamb during his deposition. (Dkt. 174 at 23.) As Professor Lamb explained at deposition, however, none of those creates a material dispute of fact. The first excerpt stated that there have been fewer studies on
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gay male parents than lesbian parents, but as Professor Lamb explained, the studies of gay male parents had the same results as the lesbian family research: that child outcomes did not vary depending on the parents sexual orientation. (Further Lamb Decl. 7; see also Lin Decl. Ex. K, Lamb Dep. at 76:6-17, June 24, 2011.) The second excerpt noted that there are fewer studies on adolescents than younger children, but it is undisputed that there are several . . . studies that have looked at adolescent offspring living with same-sex parents and those studies have uniformly reported positive outcomes. (Further Lamb Decl. 9-10; see also Lin Decl. Ex. K, Lamb Dep. at 82:15-83:21.) The third excerpt does not discuss gay parenting at all, and therefore ignores the existence of studies regarding gay parenting with representative sample sizes. (Further Lamb Decl. 11-12, 16; see also Lin Decl. Ex. K, Lamb Dep. at 85:10-86:7.) BLAG then cites three sources, none of which involve any empirical study showing samesex parents to be inferior. One is a three-page Slate.com piece by Ann Hulbert, who has no professional expertise in child development. (Further Lamb Decl. 15.) Another is an article by Norval Glenn about the size of the samples used in these studies. As Professor Lamb explains, such sampling is routinely used in psychological research, and in any event, a number of the studies on which Professor Lamb relied have used representative samples. (Id. 16.) The last is an unpublished piece posted online by Professor Loren Marks. That document criticizes a 2005 brief issued by the American Psychological Association concluding that social science research indicates that gay parents provide a home environment equally likely to support childrens psychosocial growth. (Id. 20.) The Marks piece deliberately ignores the many studies published after 2005 (in addition to many published before 2005) supporting the conclusion that parents sexual orientation is unrelated to their childrens adjustment. (Id. 21-27.) Professor Marks does not purport to offer any opinion on the current state of research on this topic. BLAG also cites an Eleventh Circuit opinion in Lofton v. Secy of the Dept of Children & Family Servs., 358 F.3d 804, 824 (11th Cir. 2004). That case, however, involved no expert testimony on this topic. See Lofton v. Kearney, 157 F. Supp. 2d 1372, 1383 (S.D. Fla. 2001) (noting that plaintiffs did not submit evidence and did not object to nor disagree with Defendants statements that married heterosexual families provide children with a more stable
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home environment). Without such record evidence, the Eleventh Circuit was left to rely on a booklet from an advocacy organization opposing marriage of same-sex couples, a 1995 review article calling for the types of studies that have since been published, and another review article that in fact concluded there is no evidentiary basis for considering parental sexual orientation in decisions about childrens best interest. (Further Lamb Decl. 17-19.) Cf. Witt, 527 F.3d at 818 n.6 (criticizing Lofton for fail[ing] to appreciate key aspects of Lawrence). As Professor Lamb explains, it remains beyond scientific dispute that same-sex parents are as fit as different-sex parents. (Further Lamb Decl. 28.) None of the sources cited by BLAG identifies a single reliable scientific study to the contrary, and none identifies any basis to ignore the conclusive empirical evidence that is well-accepted in the scientific community. (Id.) 2. There Is No Rational Basis to Believe that DOMA Will Cause Heterosexuals to Procreate More Responsibly.

In any event, regardless of the relative merits of same-sex and different-sex parents, there is no rational basis to believe DOMA or its denial of equal health coverage to same-sex spouses 14 will cause more heterosexuals to marry or to have children. See Gill, 699 F. Supp. 2d at 389 15 ([D]enying marriage-based benefits to same-sex spouses certainly bears no reasonable relation to 16 any interest the government might have in making heterosexual marriages more secure.). 17 BLAGs principal response is to insist that DOMA will foster the link between marriage 18 and childrearing. (Dkt. 174 at 25.) That makes no sense. Same-sex married couples often rear 19 20 which those children are raised only increases the number of children being raised outside 21 22 23 24 25 26 27 28 See Adam P. Romero, The Williams Institute, Census Snapshot, at 1, 2 (December 2007) (census data show that 20% of same-sex couples in the U.S. are raising children and as of 2005 an estimated 270,313 of the countrys children were living in households headed by samesex couples), available at http://www.policyarchive.org/handle/10207/bitstreams/18082.pdf BLAG cross-references its motion to dismiss reply brief, which speculates that there may be a connection between declining birth rates and the recognition of marriages between same-sex spouses in Scandinavia and the Netherlands. (Dkt. 150 at 26-27 n.18.) That connection has been conclusively disproven. See M.V. Lee Badgett, Will Providing Marriage Rights to Same-Sex Couples Undermine Heterosexual Marriage?, Sexuality Research and Social Policy Journal, at 8 (Sept. 2004) (finding that no evidence supports that connection; birth rates have
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children, as Plaintiff and her spouse are doing.13 Refusing federal recognition to the marriages in

federally recognized wedlock, further decoupling marriage from childrearing.14

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Moreover, if Congresss intent was truly to send a message that marriage is intertwined with childrearing, the denial of rights to same-sex spouses is an irrational way to accomplish that goal. Congress could easily have provided such rights only to married persons with children instead. Although BLAG is correct that rational basis review does not require legislative classifications to be narrowly tailored, the Supreme Court has expressly refused to credit a legislatures choice of an attenuated path toward a supposed goal when a far more direct path is readily available. Cleburne, for example, invalidated under rational basis review a zoning ordinance barring a home for the mentally disabled. The Court held that, if the citys interest was truly to prevent overcrowding, it could have easily passed a zoning regulation limiting the number of occupants. 473 U.S. at 449-50. The same skepticism should apply here. See Weinberger v. Wiesenfeld, 420 U.S. 636, 648 n.16 (1975) (This Court need not in equal protection cases accept at face value assertions of legislative purposes, when an examination of the legislative scheme and its history demonstrates that the asserted purpose could not have been a goal of the legislation.) (citations omitted); Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 366 n.4 (2001) (finding that law failed rational basis review where purported justifications . . . made no sense in light of how the [government] treated other groups similarly situated); Williams v. Vermont, 472 U.S. 14, 23-24 (1985) (holding that distinction in tax obligation between similarly situated groups bore no relation to statutory purpose and thus failed rational basis review). CONCLUSION For the forgoing reasons, plaintiffs motion for summary judgment should be granted. Dated: November 1, 2011 MORRISON & FOERSTER LLP LAMBDA LEGAL By: /s/ Rita F. Lin RITA F. LIN Attorneys for Plaintiff

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changed across Scandinavia, Europe, and the United States regardless of whether or not they adopted same-sex partnership laws; and this trend was underway well before the passage of laws that gave same-sex couples rights in Scandinavia); see also William Eskridge & Darren Spedale, Gay Marriage, For Better or For Worse? (2006) (concluding that the Scandinavian evidence shows that marriages between same-sex couples strengthen the institution).
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JAMES R. McGUIRE (CA SBN 189275) JMcGuire@mofo.com GREGORY P. DRESSER (CA SBN 136532) GDresser@mofo.com RITA F. LIN (CA SBN 236220) RLin@mofo.com AARON D. JONES (CA SBN 248246) AJones@mofo.com MORRISON & FOERSTER LLP 425 Market Street San Francisco, California 94105-2482 Telephone: 415.268.7000 Facsimile: 415.268.7522 JON W. DAVIDSON (CA SBN 89301) JDavidson@lambdalegal.org SUSAN L. SOMMER (Pro Hac Vice motion pending) SSommer@lambdalegal.org TARA L. BORELLI (CA SBN 216961) TBorelli@lambdalegal.org LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 3325 Wilshire Boulevard, Suite 1300 Los Angeles, CA 90010-1729 Telephone: 213.382.7600 Facsimile: 213.351.6050 Attorneys for Plaintiff KAREN GOLINSKI UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

KAREN GOLINSKI, Plaintiff, v. UNITED STATES OFFICE OF PERSONNEL MANAGEMENT, and JOHN BERRY, Director of the United States Office of Personnel Management, in his official capacity, Defendants,

Case No.

3:10-cv-0257-JSW

DECLARATION OF LISA M. DIAMOND IN SUPPORT OF PLAINTIFFS MOTION FOR SUMMARY JUDGMENT Hearing: December 16, 2011; 9 a.m.

24 25 26 Defendant-Intervenor. 27 28
DECL. OF LISA DIAMOND IN SUPPORT OF PLTF.S MOTN FOR SUMMARY JUDGMENT Case No. 3:10-cv-0257-JSW

THE BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES,

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I, LISA M. DIAMOND, Ph.D., hereby declare and state as follows: 1. I have actual knowledge of the matters stated in this affidavit and could and would

testify as such if called as a witness. 2. I am an associate professor of developmental psychology at the University of

Utah, where I have been teaching since 1999. I received a Ph.D. from Cornell University in 1999 in Human Development, or developmental psychology. My areas of specialty include the nature and development of affectional bonds and the nature and development of same-sex sexuality. 3. I have reviewed the papers submitted by the Bipartisan Legal Advisory Group of

the United States House of Representatives (BLAG) in opposition to the Plaintiffs motion for summary judgment in the above-referenced lawsuit. BLAG cites my work numerous times in those papers. 4. Counsel for BLAG never requested that I serve as an expert witness for them in

the above-referenced lawsuit. If they had so requested, I would not have agreed to do so because I do not think their position on immutability is supported by the science. 5. I am providing these clarifications of my work on a scientific basis, and I have no

other interest or involvement in this case. I have received no compensation for providing this affidavit. 6. BLAG misconstrues my research findings, which do not support the propositions

for which BLAG cites them. Specifically, on page 9 of BLAG Superseding Opposition to Plaintiffs Motion for Summary Judgment (Dkt. 174), BLAG quotes the following statement from one of my papers: There is currently no scientific or popular consensus on the exact constellation of experiences that definitively qualify an individual as lesbian, gay or bisexual as support for its claim that sexual orientation is not immutable. This is incorrect. My quoted statement concerns the scientific and popular debates over the defining characteristics of lesbian, gay and bisexual individuals, and it says nothing whatsoever about the immutability of sexual orientation itself. Hence, BLAG has incorrectly characterized my research. 7. As part of its argument that sexual orientation is not a definable, immutable trait,

BLAG provides the following quote from one of my articles: 50% of the respondents had
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changed their identity label more than once since first relinquishing their heterosexual identity. This quoted statement refers to sexual identity labels (i.e., how individuals describe and interpret their sexuality), not to sexual orientation. 8. BLAG cites three additional quotes from the same article (Dkt. 174, p. 10), but

uses them out of context and in ways that misrepresent their meaning. BLAG claims that my published work examining bisexuality (which I sometimes refer to as nonexclusivity) constitutes evidence against the immutability of sexual orientation. But my work does not support BLAGs claim, which is scientifically incorrect. BLAGs reasoning is based on a faulty, although fairly common, conflation of distinct concepts: on the one hand, the stability in a persons expression of a particular trait, and on the other, whether the underlying trait is changeable. 9. Laypeople frequently presume that if a trait is immutable, it will express itself in a

rigid deterministic fashion, but this is simply not true. For example, persons with the same genotype (genetic pattern) can have different phenotypes (expression of the genetic pattern). The different phenotypes (expressions) do not change the existence of a common genotype. 10. By analogy, in the context of sexual orientation, periodic changes over the life

course in the conscious experience of same-sex attraction are changes in the expression of sexual orientation, not in orientation itself (i.e., the underlying capacity for same-sex attraction). The fact that some individuals may show different expressions of same-sex attraction over time does not change the fact that they belong to a meaningful, scientifically acknowledged class of individuals who share a fundamental and distinctive trait: the capacity for same-sex attractions. Patterns in the degree of same-sex attraction different individuals experience over time have been documented in the scientific literature on sexual orientation for many years, and are reviewed in my book, Lisa M. Diamond, Sexual Fluidity: Understanding Womens Love and Desire (2008). These patterns reflect naturally occurring variability in sexual expression over the life course; they do not constitute evidence against the existence of sexual orientation as a basic immutable trait.

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11.

Changes in the expression of same-sex attractions or behavior over the life course

are also easily explained by the fact that bisexual patterns of same-sex attraction (which includes a pattern such as mostly but not completely attracted to the same-sex) are actually more common than most people think (especially among women). Edward O. Laumann, et al., The Social Organization of Sexuality: Sexual Practices in the United States (1994). Individuals with bisexual patterns of attraction often report differing degrees of same-sex versus other-sex attraction at different periods of time, depending on factors like their social environment and who they are involved with at the time. But the trait of capacity for same-sex attraction remains stable. I am aware of no research suggesting that a bisexual individuals capacity for same-sex attraction disappears even if its expression may vary over the life course. 12. The other study cited by BLAG about changing sexual attractions is Nigel Dickson

et al., Same Sex Attraction in a Birth Cohort: Prevalence and Persistence in Early Adulthood, 56 Soc. Sci. & Med. 1607, 1611-12 (2003), an article with which I am familiar. (Dkt. 174, p. 10.) BLAG misunderstands this article as well, conflating immutability of sexual orientation with perfect stability of its outward expression. This article does not speak to immutability of sexual orientation (which the authors themselves never claim to have measured), but to the expression of same-sex attraction and behavior over time. 13. If the question is whether gays, lesbians and bisexuals are a group of people with a

distinct, immutable characteristic, my scientific answer to that question is yes. The fact that the characteristic expresses itself in different ways across the group does not mean that the group itself does not exist. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on this 21st day of October, 2011. /s/ Lisa M. Diamond, Ph.D. Lisa M. Diamond, Ph.D.

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GENERAL ORDER 45 ATTESTATION In accordance with General Order 45, concurrence in the filing of this document has been obtained from the signatory and I shall maintain records to support this concurrence for subsequent production for the court if so ordered or for inspection upon request by a party.

/s/ Rita F. Lin Rita F. Lin Attorney for Plaintiff KAREN GOLINSKI

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JAMES R. McGUIRE (CA SBN 189275) JMcGuire@mofo.com GREGORY P. DRESSER (CA SBN 136532) GDresser@mofo.com RITA F. LIN (CA SBN 236220) RLin@mofo.com AARON D. JONES (CA SBN 248246) AJones@mofo.com MORRISON & FOERSTER LLP 425 Market Street San Francisco, California 94105-2482 Telephone: 415.268.7000 Facsimile: 415.268.7522 JON W. DAVIDSON (CA SBN 89301) JDavidson@lambdalegal.org SUSAN L. SOMMER (Pro Hac Vice motion pending) SSommer@lambdalegal.org TARA L. BORELLI (CA SBN 216961) TBorelli@lambdalegal.org LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 3325 Wilshire Boulevard, Suite 1300 Los Angeles, CA 90010-1729 Telephone: 213.382.7600 Facsimile: 213.351.6050 Attorneys for Plaintiff KAREN GOLINSKI

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FURTHER DECL. OF MICHAEL LAMB IN SUPPORT OF PLTF.S MOTN FOR SUMMARY JUDGMENT1 Case No. 3:10-cv-0257-JSW

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION KAREN GOLINSKI, Plaintiff, v. UNITED STATES OFFICE OF PERSONNEL MANAGEMENT, and JOHN BERRY, Director of the United States Office of Personnel Management, in his official capacity, Defendants, THE BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES, Defendant-Intervenor. Case No. 3:10-cv-0257-JSW

FURTHER DECLARATION OF MICHAEL LAMB IN SUPPORT OF PLAINTIFFS MOTION FOR SUMMARY JUDGMENT Hearing: December 16, 2011; 9 a.m.

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I, MICHAEL LAMB, Ph.D., hereby declare and state as follows: 1. I am Professor of Psychology in the Social Sciences and Head of the Division of

Social and Developmental Psychology in the Faculty of Social, Human and Political Science at the University of Cambridge. 2. On June 24, 2011, I submitted my expert declaration in this matter, which set forth

my relevant background and experience (my Original Declaration, Dkt. 136), and attached my curriculum vitae and a list of my publications from the last 10 years, as Exhibits A and B respectively. 3. That Original Declaration set forth the principal opinion that I am offering in this

case: that children and adolescents raised by same-sex parents are as likely to be well-adjusted as children raised by heterosexual parents, including biological parents. 4. I have read the relevant portions of the Defendant-Intervenor Bipartisan Legal

Advisory Group (BLAG) of the United States House of Representatives Superseding Opposition to Plaintiffs Motion for Summary Judgment (Dkt. 174), and BLAGs prior briefing on this subject (Dkt. 119). More specifically, text on pages 23 through 25 of BLAGs superseding summary judgment opposition brief suggests that the research on the psychological adjustment of children with gay and lesbian parents is not valid or reliable because it has serious flaws. (Dkt. 174, p. 23.) In its brief, BLAG suggests that children are best adjusted when raised by co-resident mothers and fathers. (Dkt. 174, p. ix (described as responsible procreation and child-bearing); p. 23.) I submit this further declaration in order to respond to these statements, with which I strongly disagree. There Is No Basis for Dismissal of the Studies Referenced in My Affidavit as Flawed. 5. First, BLAG asserts that studies in my Original Declaration comparing gay or

lesbian parents to heterosexual parents have serious flaws, and as supposed support for this position, quote from three articles discussed at my deposition. (Dkt. 174, p. 23.) I was deposed by counsel for Defendant-Intervenor BLAG in a joint deposition taken for purposes of Windsor v. United States, No. 1:10-cv-8435 (S.D.N.Y.) and Pedersen v. Office of Personnel Management,

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No. 3:10-cv-01750, on June 24, 2011, in connection with a substantively identical version of my Original Declaration submitted on my behalf in those cases. 6. BLAGs assertion is incorrect. When these quotations from other scholars

articles were presented to me at my deposition, I explained how they had been taken out of context and that the scientific research on gay parent families is robust, meets the accepted rigorous standards for research in the field, and supports the central conclusion provided in my Original Declaration and reiterated here: that children with gay and lesbian parents are just as likely to be well-adjusted as those with heterosexual parents. 7. Specifically, in response to the first quotation from a report I had cited, Studies of

children raised by same-sex parents have almost exclusively focused on families headed by lesbian mothers rather than gay fathers (Dkt. 174, p. 23), I explained at my deposition: [I]ts a fact that there have been more studies that are focused on the adjustment of children raised by lesbians rather than gay parents. Its a fact that results of studies that are focused on the children in both of those contexts are similar to one another. And its a fact that in both contexts one finds that the adjustment of children is affected not by the sexual orientation or by the family structure but by the family process variables that we talked about earlier this morning. (Dep. Tr. at 76:6-17.) For example, Farr, Forsell and Patterson (2010) Parenting and child development in adoptive families: Does parental sexual orientation matter? Applied Developmental Science, 14(3), 164-178 (referenced in my Original Declaration) studied a sample of children raised since infancy in families headed by gay male couples. The results were the same as in the lesbian family researchchild outcomes did not vary depending on the parents sexual orientation. 8. In other words, there is sufficient, indeed overwhelming, evidence that the

adjustment of children is not affected by their parents sexual orientation, and the fact that more studies have focused on children raised by lesbians, rather than gay men, does nothing to undercut that conclusion. 9. In response to BLAGs second quotationWe still have relatively few studies of

adolescent offspring of lesbian or gay parents however, and some have advised caution when
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generalizing the results of research conducted with young children of adolescents (Dkt. 174, p. 23)I explained at my deposition as follows: There are fewer studies of adolescents than there are of younger children. I think that this statement here is part of a way of underscoring the importance of this research. And it is important research. But there are several other studies that have looked at adolescent offspring living with same-sex parents. Q. Does the fact that there are, I think you said, fewer studies on adolescents counsel us to be cautious about drawing conclusions about adolescents who are raised by same-sex parents? Well, I dont think it does because the results of those fewer studies are consistent with the results of other research that looks at childrens adjustment and other research that looks at adolescents and the factors that are associated with their adjustment. Again, I think whats important to underscore is how important it is to look at any set of findings in context. In that context, the fact that studies like this show that children being raised by same-sex parents are as likely to be well adjusted as children raised by -sorry -- as adolescents raised by heterosexual parents and that when one looks at the correlates of better or worse adjustment, that its the same factors regardless of sexual orientation. It is the convergence between the findings and the broader body of literature that is really the key thing we want to look at. (Dep. Tr. at 82:15-83:21.) 10. As explained, although there is less research on adolescents than on younger

children, there have been several such studies about adolescents and they have uniformly reported positive outcomes on the part of adolescents raised by gay parents. Further, the correlates of positive adolescent adjustment are the same regardless of the parents sexual orientation. 11. The third quotation presented to me at my deposition and used by BLAG in its

brief was the following statement by Lawrence Kurdek: Future research on gay and lesbian couples needs to address several key issues. One is sampling. Because most studies have used convenience samples of mostly white and well-educated partners, the extent to which findings generalize to the larger population of gay and lesbian couples is unknown. Most studies on gay and lesbian couples have used self-report surveys. Future work could address some of the biases associated with self-report data . . . . (Dkt. 174, p. 23.) When presented with this quote at my deposition, I explained as follows: Well, hes certainly correct in noting these issues in the literature on gay and lesbian couples, particularly research of the sort that he has done, which has painstakingly, and I think very usefully, shown
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that the dynamics of relationships in gay and lesbian couples are characterized by the same dimensions as those in heterosexual families and that clearly elaborating on that and doing more research may be helpful for those who are interested in further understanding couple dynamics. I do want to underscore that this, his research, is focused on gay and lesbian couples, mostly couples without children, and that these studies dont look at the relationship between the couple variables and the childrens adjustment. They are nevertheless very useful because they do show that the research on the dynamics of those couples is subject to and has the same sorts of correlates and variables as do heterosexual couples, both those that are married as well as those who are co-habiting. (Dep. Tr. at 85:10-86:7.) 12. In other words, researchers typically identify areas for future research in their

studies. This does not mean, as BLAG suggests, that the studies are invalid or unreliable. As I explained, Kurdeks research on same-sex couples relationships is both rigorous and reliable. But it is also important to note that he was not discussing research on gay parents as BLAG incorrectly suggests. 13. Contrary to BLAGs presentation, therefore, I have never suggested that the

scientific research on gay parent families is flawed or deficient; rather, I made it clear that the research is not only robust, but reliably shows equally good outcomes for children of gay and heterosexual parents. None of the quotations that BLAG cites undercuts the validity of the research. BLAG fundamentally mischaracterizes the scientific evidence, more fully summarized in my Original Declaration, to which an extended bibliography was appended (Dkt. 136). The Sources BLAG Cites Do Not Reflect the Science. 14. In further attempts to support its position that the gay parenting research should be

dismissed because of methodological flaws, BLAG also makes reference to two articles and to a decision of the Eleventh Circuit Court of Appeals in the Lofton case (addressing a challenge to a Florida law banning adoption by gay people). Based on these writings, BLAG claims that, Numerous studies have pointed to methodological flaws in those studies comparing heterosexual and homosexual parents. (Dkt. 174, p. 24.) 15. That is not the case. The article by Anne Hulbert, a writer, is a non-scientific

three-page article published in a popular online magazine, www.slate.com. Anne Hulbert has no
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professional expertise with respect to child psychology, her article was not published in a peerreviewed scientific journal, and it contains an errata footnote acknowledging her earlier misunderstanding of statistics presented in a study. The article thus is not a reliable scientific source from which to draw sound conclusions regarding the social science research on children raised by gay parents. 16. The second article, Norval D. Glenns criticism of the sampling used in research

on gay parents published in The Struggle for Same-Sex Marriage (Dkt. 174, p. 24) is without merit for the same reasons discussed above. While Glenn dismisses this body of research for using small convenience samples, such sampling is appropriate and routinely used in psychological research. Moreover, a number of the studies on gay parent families did use representative samples. See, e.g., Wainright et al. (2004); Wainright & Patterson (2006, 2008); Rosenfeld (2010). 17. The Eleventh Circuits characterization of the gay parenting research also does not

match reality. The sources cited by the Lofton court purporting to show that the research is flawed include: (1) a 1995 review article by Baumrind calling for the very kinds of studies that have been published in the years since; (2) a booklet written by Lerner and Nagai that was published by the Marriage Law Project, an advocacy organization that opposes marriage for same-sex couples; and (3) a review article written by Stacey and Biblarz that, contrary to the Courts characterization, deems the research sufficiently strong and reliable to draw the following conclusion: Because every relevant study to date shows that parental sexual orientation, per se, has no measurable effect on the quality of parent-child relationships or on childrens mental health or social adjustment, there is no evidentiary basis for considering parental sexual orientation in decisions about childrens best interest.1 18. Contrary to the conclusion of the Lofton court, the research on gay parent families

is a robust body of research that meets the rigorous methodological standards demanded for

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publication in the leading academic journals. There is simply no basis to dismiss this body of research as invalid or unreliable due to methodological deficiencies. 19. Of the two studies cited by the Lofton court to purportedly show worse outcomes

for children of gay parents, the first, a publication by Paul Cameron, is worthless. Cameron, the founder of an anti-gay advocacy organization called the Family Research Institute, has been discredited as biased with respect to the research on homosexuality and reportedly had his membership in the American Psychological Association revoked. Although Camerons publication claims to show that children are more likely to be molested by gay parents than heterosexual parents, it makes clear that the researchers did not even ask respondents about the sexual orientation of their parents. The second, the Stacey and Biblarz review article discussed above, did not conclude that children with gay parents fared worse than children with heterosexual parents. In fact, it concluded that there is no evidentiary basis for considering parental sexual orientation in decisions about childrens best interest. As discussed more fully in my Original Declaration, the research on children raised by gay parents consistently shows that parental sexual orientation has no bearing on child outcomes. There can be no reasonable doubt that this is a matter of scientific consensus. 20. BLAG also appends to its filing a document by Dr. Loren Marks, posted on an

open-access web-site on October 3, 2011. This document criticizes a brief issued by the American Psychological Association (APA) in 2005, concluding that the social science research existing prior to that date suggested that lesbian and gay parents provide a home environment equally likely to support childrens psychosocial growth. Importantly, Markss critique is neither a study nor published in a peer-reviewed journal, and its analysis does not conform to the basic, general standards for such articles. 21. For example, although Marks authored this document in 2011, he limited his

review of the literature on children raised by lesbian and gay parents to studies through 2005, rendering his analysis incomplete and outdated. Marks thus avoids having to acknowledge that not only the studies published prior to 2005, but also the many studies published since then, consistently have confirmed the central conclusion stated in the APAs brief as well as in my
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Original Declarationthat children raised by gay and lesbian parents are as likely to be welladjusted as children raised by heterosexual parents. 22. This flaw infects a number of Markss assertions in the document. Marks claims

broadly that the literature on lesbian and gay parents lacks ethnically and economically diverse samples, though some studies prior to 2005 (see, e.g., Wainright et al. (2004)) and even more since then (see, e.g., Wainright & Patterson (2006, 2008); Rosenfeld (2010)) have been published using samples that include both lesbian and gay parents from a representative variety of ethnic and economic backgrounds. Their findings all confirm that parents sexual orientation is not related to childrens adjustment. 23. Marks also questions the comparison groups used in some studies, but fails to

acknowledge that researchers necessarily choose different methods and procedures depending on the specific questions they address, and accordingly, many valuable studies do not need comparison groups.2 Where studies do require comparison groups to justify their conclusions, the comparison groups should control for factors likely to create differences between the groups, making it appropriatecontrary to Markss assertionsto include single heterosexual parents in the control group when the focal group comprises single lesbian and gay parents. Where appropriate, researchers have compared coupled lesbian or gay parents with coupled heterosexual parents. It is a strength rather than a weakness of the field that the studies have compared lesbian, gay and heterosexual parents in a variety of circumstances, which broadens the research and allows us to be even more confident about the results. 24. Marks is critical of the fact that a number of studies in this field focus on certain

outcomes, such as the emotional functioning and behavioral adjustment of individuals raised by same-sex parents, and not others, such as intergenerational poverty and criminality, but fails to acknowledge that researchers choose outcome measures that are theoretically meaningful. Thus, Indeed, Marks himself is a qualitative researcher who has published many studies that do not involve comparison groups. Marks lack of objectivity is further evidenced by his citation to non-comparative research when it suits him. For example, Marks illustrates the importance of longitudinal research by citing at length a study by Wallerstein, et al. (2001) without noting that the study had no comparison group.
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in response to speculation as to whether children raised by same-sex parents might have emotional difficulties or lack appropriate sex role models, researchers understandably focused many studies on psychological well-being and gender-related outcomes. Researchers have examined many other outcomes as well, compiling compelling evidence that children and adolescents raised by lesbian and gay parents are as likely to be well-adjusted as those raised by heterosexual parents, and that the same factors are associated with better and worse adjustment in same-sex- and heterosexual-headed families. These studies have focused on children and adolescents of varying ages and have involved both cross-sectional and longitudinal methods. Because there is no theoretical reason to hypothesize elevated rates of poverty or criminality, for example, among children raised by same-sex couples, there would be no reason to conduct research on these outcomes. 25. Markss lack of scholarly objectivity is illustrated by his focus on a 1996 study by

Sarantakos published in an obscure publication, Children Australia, which is not a scientific journal relied on by researchers and is not even included in the key databases of scientific journals. It is impossible to draw conclusions from this study about the impact of parental sexual orientation on children because, as acknowledged by Sarantakos himself in his article (but not by Marks), many children in the study with lesbian, gay and cohabiting heterosexual parents, but not those in the married comparison group, had recently experienced their parents separations and had also moved recentlyfactors likely to affect their adjustment. In addition, as acknowledged by Sarantakos himself in his article, the teachers who rated the childrens adjustment had homophobic attitudes. 26. Markss paper concludes with a lengthy section making the simple point that

studies may fail to find differences between comparison groups either because there are no differences or because the differences are too small to be detected with the number of participants studied. He ignores, however, that the research on this topic has involved both large and small samples, so we can be confident that there are no reliable differences of statistical or practical significance.

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27.

Fundamentally, Marks fails to acknowledge that multiple cross-sectional and

longitudinal studies have repeatedly revealed no significant differences in the psychological adjustment of children and adolescents raised by lesbian or gay parents as opposed to heterosexual parents, regardless of the methods, measures, mode of recruitment, characteristics of the families, and sizes of the samples. 28. The conclusion stated in my Original Declarationthat it is beyond scientific

dispute that children with gay, lesbian, and heterosexual parents are as likely as one another to be well-adjusted because it is the quality of parenting and parent-child relationships, the quality of the parents relationships with partners and other significant adults, and their social and economic resources, rather than their family structure or type that determines childrens outcomesis well supported by the empirical research literature. None of the sources cited by BLAG identifies a single reliable scientific study to the contrary, and none identifies any basis to ignore the conclusive empirical evidence that is well-accepted in the scientific community. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on this 24th day of October, 2011. /s/ Michael E. Lamb, Ph.D. Michael E. Lamb, Ph.D.

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GENERAL ORDER 45 ATTESTATION In accordance with General Order 45, concurrence in the filing of this document has been obtained from the signatory and I shall maintain records to support this concurrence for subsequent production for the court if so ordered or for inspection upon request by a party. /s/ Rita F. Lin Rita F. Lin Attorney for Plaintiff KAREN GOLINSKI

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JAMES R. McGUIRE (CA SBN 189275) JMcGuire@mofo.com GREGORY P. DRESSER (CA SBN 136532) GDresser@mofo.com RITA F. LIN (CA SBN 236220) RLin@mofo.com AARON D. JONES (CA SBN 248246) AJones@mofo.com MORRISON & FOERSTER LLP 425 Market Street San Francisco, California 94105-2482 Telephone: 415.268.7000 Facsimile: 415.268.7522 JON W. DAVIDSON (CA SBN 89301) JDavidson@lambdalegal.org SUSAN L. SOMMER (Pro Hac Vice motion pending) SSommer@lambdalegal.org TARA L. BORELLI (CA SBN 216961) TBorelli@lambdalegal.org LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 3325 Wilshire Boulevard, Suite 1300 Los Angeles, CA 90010-1729 Telephone: 213.382.7600 Facsimile: 213.351.6050 Attorneys for Plaintiff KAREN GOLINSKI UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION KAREN GOLINSKI, Plaintiff, v. UNITED STATES OFFICE OF PERSONNEL MANAGEMENT, and JOHN BERRY, Director of the United States Office of Personnel Management, in his official capacity, Defendants, THE BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES, Defendant-Intervenor. Case No. 3:10-cv-0257-JSW

FURTHER DECLARATION OF LETITIA ANNE PEPLAU IN SUPPORT OF PLAINTIFFs MOTION FOR SUMMARY JUDGMENT Hearing: December 16, 2011; 9 a.m.

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I, LETITIA ANNE PEPLAU, Ph.D., hereby declare and state as follows: 1. I have actual knowledge of the matters stated in this declaration and could and

would testify as such if called as a witness. 2. I have already provided an expert declaration filed on June 24, 2011 (my Original

Declaration) in this litigation. (Dkt. 137.) A complete explanation of my professional background, experience, publications and compensation appears in my Original Declaration. 3. I have been asked to respond to the discussion on pages 8 through 11 of the

Superseding Opposition to Plaintiffs Motion for Summary Judgment of Defendant-Intervenor Bipartisan Legal Advisory Group of the United States House of Representatives (BLAG) (Dkt. 174), filed on October 14, 2011, and to address three articles cited therein: (a) Nigel Dickson et al., Same-Sex Attraction in a Birth Cohort: Prevalence and Persistence in Early Adulthood, 56 Soc. Sci. & Med. 1607 (2003); (b) Lisa M. Diamond, New Paradigms for Research on Heterosexual and Sexual Minority Development, 32 J. Clinical Child & Adolescent Psychol. 492 (2003); and (c) Lisa M. Diamond & Ritch C. Savin-Williams, Explaining Diversity in the Development of Same-Sex Sexuality Among Young Women, 56 J. Soc. Issues 297 (2000) (together, the Articles). I was deposed by counsel for BLAG in a joint deposition taken for purposes of Windsor v. United States, No. 1:10-cv-8435 (S.D.N.Y.) and Pedersen v. Office of Personnel Management, No. 3:10-cv-01750, on June 17, 2011, in connection with a substantively identical version of my Original Declaration submitted on my behalf in those cases. None of the Articles was introduced by BLAG as an exhibit or discussed during that deposition. 4. In preparing this declaration I reviewed the cited portion of the above referenced

Superseding Opposition (Dkt. 174), as well as the Articles. I am also generally familiar with the scholarship of Lisa M. Diamond, the author of two of the Articles. 5. None of the Articles changes, in any way, any of the expert opinions I expressed in

my Original Declaration, including that [s]exual orientation refers to an enduring pattern of emotional, romantic, and/or sexual attractions to men, women, or both sexes; that sexual orientation is a multi-faceted phenomenon involving attractions, related behaviors, and identity; that [m]ost adults are attracted to and form relationships with members of only one sex; that
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the significant majority of adults exhibit a consistent and enduring sexual orientation; and that sexual orientation is highly resistant to change. (Declaration 10, 17, 23, 26.) 6. The Dickson, et al. article in fact provides further evidence in support of these

opinions. Among the participants in the Dickson study, the overwhelming majority of individuals who reported only opposite sex attraction at age 21 also reported only opposite sex attraction at age 26. Similarly, the vast majority of those who reported major attraction to the same sex at age 21 reported this at age 26 as well. The data show that only of 1% of the male participants and 1.3% of the female participants shifted from only opposite sex attraction to major attraction to the same sex or vice versa. Of the small number that did shift, virtually all had already reported being attracted at least once to their own sex. Dickson, et al., at p. 1609 (explaining which responses were classified as occasional same-sex attraction). 7. BLAG also quotes out of context my deposition testimony in Windsor and

Pedersen that, looking at a newborn, I would not be able to tell you what the childs sexual orientation is going to be (Dep. Tr. at 25:21-23), and claims this undermines the opinions I have expressed (Dkt. 174, p. 9). As I explained in my deposition, most individuals typically come to understand their sexual orientation during adolescence. (Dep. Tr. at 25:18-20.) This fact is consistent with my opinion that most adults exhibit a consistent and enduring sexual orientation highly resistant to change. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on this 20th day of October, 2011. /s/ Letitia Anne Peplau, Ph.D. Letitia Anne Peplau, Ph.D.

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GENERAL ORDER 45 ATTESTATION In accordance with General Order 45, concurrence in the filing of this document has been obtained from the signatory and I shall maintain records to support this concurrence for subsequent production for the court if so ordered or for inspection upon request by a party. /s/ Rita F. Lin Rita F. Lin Attorneys for Plaintiff KAREN GOLINSKI

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JAMES R. MCGUIRE (CA SBN 189275) JMcGuire@mofo.com GREGORY P. DRESSER (CA SBN 136532) GDresser@mofo.com RITA F. LIN (CA SBN 236220) RLin@mofo.com AARON D. JONES (CA SBN 248246) AJones@mofo.com MORRISON & FOERSTER LLP 425 Market Street San Francisco, California 94105-2482 Telephone: 415.268.7000 Facsimile: 415.268.7522 JON W. DAVIDSON (CA SBN 89301) JDavidson@lambdalegal.org SUSAN L. SOMMER (pro hac vice) SSommer@lambdalegal.org TARA L. BORELLI (CA SBN 216961) TBorelli@lambdalegal.org LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 3325 Wilshire Boulevard, Suite 1300 Los Angeles, California 90010-1729 Telephone: 213.382.7600 Facsimile: 213.351.6050 Attorneys for Plaintiff KAREN GOLINSKI UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

KAREN GOLINSKI, Plaintiff, v. UNITED STATES OFFICE OF PERSONNEL MANAGEMENT, and JOHN BERRY, Director of the United States Office of Personnel Management, in his official capacity, Defendant.

Case No.

3:10-cv-0257-JSW

DECLARATION OF RITA F. LIN IN SUPPORT OF PLAINTIFFS SUPERSEDING REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDMGENT Date: Time: Dept..: Judge: December 16, 2011 9:00 a.m. Courtroom 11 Hon. Jeffrey S. White

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I, RITA F. LIN, declare as follows: 1. I am an associate at the law firm of Morrison & Foerster LLP, which is counsel of

record for defendants. I am licensed to practice law in the State of California. I make this declaration of my own personal knowledge, and if called as a witness could and would testify competently to the matters stated herein. 2. Attached as Exhibit A is a true and correct copy of Plaintiffs and Plaintiff

Intervenors Notice of Motion and Motion in Limine to Exclude the Expert Reports, Opinions, and Testimony of Katherine Young, Loren Marks and David Blankenhorn, filed December 7, 2009 in Perry v. Schwarzenegger, No. 09-CV-2292 VRW (N.D. Cal.). 3. Attached as Exhibit B is a true and correct copy of excerpts from the certified

deposition transcript of Loren Marks taken on October 30, 2009 in Perry v. Schwarzenegger, No. 09-CV-2292 VRW (N.D. Cal.). 4. Attached as Exhibit C is a true and correct copy of Plaintiffs Statement Pursuant

to Local Rule 56.1 filed June 24, 2011 in Windsor v. United States, No. 10-cv-08435-BSJ-JCF (S.D.N.Y.). 5. Attached as Exhibit D is a true and correct copy of Intervenor-Defendant BLAGs

Local Rule 56.1 Response to Plaintiffs Statement of Material Facts, filed August 1, 2011 in Windsor v. United States, No. 10-cv-08435-BSJ JCF (S.D.N.Y.). 6. Attached as Exhibit E is a true and correct copy of excerpts from the certified

deposition transcript of George Chauncey, Ph.D., taken on July 12, 2011, jointly in Windsor v. United States, No. 10-cv-08435-BSJ-JCF (S.D.N.Y.) and Pedersen v. Office of Personnel Management, No. 3:10-cv-01750 (D. Conn.). 7. Attached as Exhibit F is a true and correct copy of Intervenor-Defendant BLAGs

Responses to Plaintiff Karen Golinskis Interrogatories, Set One, dated September 15, 2011. 8. Attached as Exhibit G is a true and correct copy of excerpts from the certified

deposition transcript of Leticia Anne Peplau, Ph.D., taken on June 17, 2011, jointly in Windsor v. United States, No. 10-cv-08435-BSJ-JCF (S.D.N.Y.) and Pedersen v. Office of Personnel Management, No. 3:10-cv-01750 (D. Conn.).
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9.

Attached as Exhibit H is a true and correct copy of excerpts from the certified

deposition transcript of Gary Segura, Ph.D., taken on July 8, 2011, jointly in Windsor v. United States, No. 10-cv-08435-BSJ-JCF (S.D.N.Y.) and Pedersen v. Office of Personnel Management, No. 3:10-cv-01750 (D. Conn.). 10. Attached as Exhibit I is a true and correct copy of Intervenor-Defendant BLAGs

Responses to Plaintiff Karen Golinskis Requests for Admission, Set One, dated September 15, 2011. 11. Attached as Exhibit J is a true and correct copy of excerpts from the Brief for

Petitioners, filed April 21, 1995 in Romer v. Evans, No. 94-1039 (Supreme Ct.). 12. Attached as Exhibit K is a true and correct copy of excerpts from the certified

deposition transcript of Michael Lamb, Ph.D., taken on June 24, 2011, jointly in Windsor v. United States, No. 10-cv-08435-BSJ-JCF (S.D.N.Y.) and Pedersen v. Office of Personnel Management, No. 3:10-cv-01750 (D. Conn.). I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct. Executed this 1st day of November, 2011 at San Francisco, California.

/s/ Rita F. Lin Rita F. Lin

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GIBSON, DUNN & CRUTCHER LLP Theodore B. Olson, SBN 38137 tolson@gibsondunn.com Matthew D. McGill, pro hac vice 1050 Connecticut Avenue, N.W., Washington, D.C. 20036 Telephone: (202) 955-8668, Facsimile: (202) 467-0539 Theodore J. Boutrous, Jr., SBN 132009 tboutrous@gibsondunn.com Christopher D. Dusseault, SBN 177557 Ethan D. Dettmer, SBN 196046 333 S. Grand Avenue, Los Angeles, California 90071 Telephone: (213) 229-7804, Facsimile: (213) 229-7520 BOIES, SCHILLER & FLEXNER LLP David Boies, pro hac vice dboies@bsfllp.com 333 Main Street, Armonk, New York 10504 Telephone: (914) 749-8200, Facsimile: (914) 749-8300 Jeremy M. Goldman, SBN 218888 jgoldman@bsfllp.com 1999 Harrison Street, Suite 900, Oakland, California 94612 Telephone: (510) 874-1000, Facsimile: (510) 874-1460 Attorneys for Plaintiffs KRISTIN M. PERRY, SANDRA B. STIER, PAUL T. KATAMI, and JEFFREY J. ZARRILLO Dennis J. Herrera, SBN 139669 Therese M. Stewart, SBN 104930 Danny Chou, SBN 180240 One Dr. Carlton B. Goodlett Place San Francisco, California 94102-4682 Telephone: (415) 554-4708, Facsimile (415) 554-4699 Attorneys for Plaintiff-Intervenor CITY AND COUNTY OF SAN FRANCISCO UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA KRISTIN M. PERRY, et al., Plaintiffs, and CITY AND COUNTY OF SAN FRANCISCO, Plaintiff-Intervenor, v. ARNOLD SCHWARZENEGGER, et al., Defendants, and PROPOSITION 8 OFFICIAL PROPONENTS DENNIS HOLLINGSWORTH, et al., Defendant-Intervenors. 1
09-CV-2292 VRW PLAINTIFFS AND PLAINTIFF-INTERVENORS NOTICE OF MOTION AND MOTION IN LIMINE TO EXCLUDE PROPOSED EXPERTS YOUNG, MARKS, AND BLANKENHORN

CASE NO. 09-CV-2292 VRW PLAINTIFFS AND PLAINTIFFINTERVENORS NOTICE OF MOTION AND MOTION IN LIMINE TO EXCLUDE THE EXPERT REPORTS, OPINIONS, AND TESTIMONY OF KATHERINE YOUNG, LOREN MARKS AND DAVID BLANKENHORN PLAINTIFFS MIL NO. 1 OF 2 [Declaration of Rebecca Justice Lazarus and Proposed Order Filed Concurrently Herewith] Final Pretrial Conference Date: December 16, 2009 Time: 10:00 a.m. Judge: Chief Judge Walker Location: Courtroom 6, 17th Floor

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TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD HEREIN: PLEASE TAKE NOTICE that on December 16, 2009, at 10:00 a.m., or as soon thereafter as counsel may be heard, in the United States District Court for the Northern District of California, San Francisco Division, Courtroom 6, located at 450 Golden Gate Avenue, San Francisco, California 94102, Plaintiffs Kristin M. Perry, Sandra B. Stier, Paul T. Katami, and Jeffrey J. Zarillo (collectively, Plaintiffs) and Plaintiff-Intervenor the City and County of San Francisco (PlaintiffIntervenor) will and hereby do move in limine for an order excluding the expert reports, opinions, and testimony of the following individuals, each of whom were designated as an expert witness in this matter by Defendant-Intervenors Dennis Hollingsworth, Gail J. Knight, Martin F. Gutierrez, Hak-Shing William Tam, Mark A. Jansson, and ProtectMarriage.com Yes on 8, A Project of California Renewal (Proponents): (1) (2) (3) Katherine Young; Loren Marks; and David Blankenhorn.

This Motion is made pursuant to Rules 104, 403, and 702 of the Federal Rules of Evidence, on the grounds that Katherine Young, Loren Marks and David Blenkhorn are not qualified experts and the opinions and testimony of Proponents Proposed Experts are neither relevant nor reliable pursuant to the standards set forth in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) and its progeny. Moreover, the expert opinions and testimony of the Proposed Experts are inadmissible because any probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, waste of time, undue delay, and needless presentation of cumulative evidence. See Fed. R. Evid. 403. Because the purported expert testimony of Katherine Young, Loren Marks, and David Blankenhorn does not meet the standards set forth in Daubert, it should not be admitted into evidence or, at the very least, should be accorded little to no weight. Given that this is a bench trial, Plaintiffs and Plaintiff-Intervenor leave to the Courts discretion whether it wishes to exclude this evidence in advance of trial or, alternatively, explore these experts qualifications during trial through direct and cross-examination and make the determination based on that more complete testimony. In any event, 2
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the testimony offered by Proponents is not admissible to prove or refute any issue germane to this case. This Motion is based upon this Notice of Motion and Motion, the attached Memorandum of Points and Authorities, the pleadings, records, and papers on file with this Court, all matters upon which this Court may take judicial notice, and such oral arguments as the Court may receive.

DATED: December 7, 2009

GIBSON, DUNN & CRUTCHER LLP Theodore B. Olson Theodore J. Boutrous, Jr. Christopher D. Dusseault Ethan D. Dettmer Matthew D. McGill Amir C. Tayrani Sarah E. Piepmeier Theane Evangelis Kapur Enrique A. Monagas

By: and

/s/ Theodore B. Olson

BOIES, SCHILLER & FLEXNER LLP David Boies Jeremy M. Goldman Roseanne C. Baxter Richard J. Bettan Beko O. Richardson Theodore H. Uno Attorneys for Plaintiffs KRISTIN M. PERRY, SANDRA B. STIER, PAUL T. KATAMI, and JEFFREY J. ZARRILLO // // //

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DENNIS J. HERRERA City Attorney THERESE M. STEWART Chief Deputy City Attorney DANNY CHOU Chief of Complex and Special Litigation RONALD P. FLYNN VINCE CHHABRIA ERIN BERNSTEIN CHRISTINE VAN AKEN MOLLIE M. LEE Deputy City Attorneys

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/s/ Therese M. Stewart

Attorneys for Plaintiff-Intervenor CITY AND COUNTY OF SAN FRANCISCO

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TABLE OF CONTENTS Page I. INTRODUCTION ............................................................................................................................. 1 II. THE LEGAL STANDARD GOVERNING EXPERT TESTIMONY ............................................ 3 A. B. The Witness Must Qualify as an Expert ....................................................................... 3 The Witness Testimony Must Be Based on Scientific, Technical, or Other Specialized Knowledge and Must Concern a Matter Beyond a Laypersons Common Knowledge................................................................................ 4 The Witness Testimony Must be Reliable and Relevant............................................. 4 1. 2. D. Reliability.......................................................................................................... 4 Relevance .......................................................................................................... 6

C.

The Probative Value of the Purported Experts Testimony Must Outweigh its Prejudicial Effect ..................................................................................... 6

III. THE COURT SHOULD EXCLUDE THE TESTIMONY OF PROPONENTS PROPOSED EXPERTS YOUNG, MARKS AND BLANKENHORN ................................ 7 A. Katherine Young ........................................................................................................... 7 1. Dr. Young is Not Qualified to Offer an Expert Opinion on Any Issue in This Case ............................................................................................. 7 Dr. Youngs Opinion Lacks Relevance to the Factual Issues of this Case ............................................................................................................ 8 Dr. Youngs Opinion Lacks a Reliable Methodology ...................................... 9 Dr. Youngs Testimony Would Waste Time and Create Confusion and is thus Inadmissible Under Federal Rule of Evidence 403................................................................................................... 11

3. 4.

B.

Loren Marks ................................................................................................................ 11 1. Dr. Marks is Not Qualified to Offer an Expert Opinion in this Case................................................................................................................. 11 Dr. Marks Report, Opinions, and Testimony Have No Relevance to this Litigation ............................................................................ 12 Dr. Marks Report, Opinions, and Testimony are Unreliable......................... 14 Dr. Marks Report, Opinions, and Testimony Lack Probative Value and are thus Inadmissible Under Federal Rule of Evidence 403................................................................................................... 16

3. 4.

C.

David Blankenhorn ..................................................................................................... 16 i

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3 1. 4 5 6 7 4. 8 9 10 11 V. CONCLUSION .............................................................................................................................. 22 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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Mr. Blankenhorn is Not Qualified to Offer an Expert Opinion in this Case .......................................................................................................... 16 Mr. Blankenhorn Has No Relevant Opinions to Offer ................................... 17 Mr. Blankenhorns Conclusions Are Not Based on a Discernible Methodology and are Unreliable ................................................. 17 Mr. Blankenhorns Testimony Would Waste Time and Create Confusion and is thus Inadmissible Under Federal Rule of Evidence 403................................................................................................... 20

2. 3.

IV. THE COURT SHOULD EITHER EXCLUDE THE TESTIMONY OF THESE PROPOSED EXPERTS BEFORE TRIAL OR REJECT SUCH TESTIMONY AFTER EXPLORING THEIR QUALIFICATIONS DURING TRIAL ................................ 21

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TABLE OF AUTHORITIES Page(s) CASES Beech Aircraft Corp. v. United States, 51 F.3d 834 (9th Cir. 1995)................................................................................................................ 4 Carnegie Mellon Univ. v. Hoffman-LaRoche, Inc., 55 F. Supp. 2d. 1024 (N.D. Cal. 1999) .............................................................................................. 5 CFM Commc'ns, LLC v. Mitts Telecasting Co., 424 F. Supp. 2d 1229 (E.D. Cal. 2005)............................................................................................ 21 Daubert v. Merrell Dow Pharms., 43 F.3d 1311 (9th Cir. 1995).................................................................................. 5, 9, 14, 15, 16, 20 Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993)................................................................................... 4, 5, 6, 7, 9, 11, 12, 13, 17 Domingo ex rel. Domingo v. T.K., 289 F.3d 600 (9th Cir. 2002)........................................................................................................ 6, 20 Fechtig v. Sea Pac. Inc., No. C 03-4056 JL 2006 WL 2982148 (N.D. Cal. Oct. 17, 2006).................................................................................. 22 Gen. Elec. v. Joiner, 522 U.S. 136 (1997)......................................................................................................... 6, 13, 14, 18 Jinro Am. Inc. v. Secure Invs., Inc., 266 F.3d 993 (9th Cir. 2001), amended by 272 F.3d 1289 (9th Cir. 2001) ............................................................................. 3, 9, 20 Jones v. United States, 127 F.3d 1154 (9th Cir. 1997).......................................................................................................... 22 Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999)................................................................................................. 4, 5, 9, 14, 15, 21 Laconner Assocs. Ltd. Liab. Co. v. Island Tug & Barge Co., 2008 WL 2077948 (W.D. Wash. May 15, 2008)............................................................................. 21 LuMetta v. U.S. Robotics, Inc., 824 F.2d 768 (9th Cir. 1987).............................................................................................. 3, 8, 11, 12 Mukhtar v. Cal. State Univ., 299 F.3d 1053 (9th Cir. 2002), amended by 319 F.3d 1073 (9th Cir. 2003) ........................................................................... 5, 10, 20 Thomas v. Newton Intl Enters., 42 F.3d 1266 (9th Cir. 1994).............................................................................................................. 3 United States v. Alatorre, 222 F.3d 1098 (9th Cir. 2000).......................................................................................................... 21 United States v. Hankey, 203 F.3d 1160 (9th Cir. 2000)............................................................................................................ 3 United States v. Vallejo, 237 F.3d 1008 (9th Cir. 2001), amended by 246 F.3d 1150 (9th Cir. 2001) ....................................................................................... 4 United States v. Verduzco, 373 F.3d 1022 (9th Cir. 2004)...................................................................................................... 6, 21 iii
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Varnum v. Brien, No. CV5965 (Iowa Dist. Ct. 2007) ................................................................................................ 1, 9 Volk v. United States, 57 F. Supp. 2d 888 (N.D. Cal. 1999) ............................................................................................... 21 RULES Fed. R. Evid. 104 ................................................................................................................. 1, 3, 4, 7, 17 Fed. R. Evid. 403 ..................................................................................................... 1, 3, 6, 7, 11, 16, 21 Fed. R. Evid. 702 ....................................................................................................... 1, 2, 3, 4, 6, 7, 8, 9

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MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION

Proponents have offered three purported experts Katherine Young, Loren Marks, and David Blankenhorn who fail to meet even the minimum requirements imposed by the Federal Rules of Evidence.1 Katherine Young. A self-described expert in comparative religion with an emphasis on Hinduism, Proponents offer Dr. Youngs testimony on what universally constitutes marriage and why. But Dr. Young lacks any relevant expertise to opine on this topic, and the conclusions set forth in her report and deposition consist of little more than her own personal reflections on the meaning of marriage. They are based on no scientific or specialized methodology; indeed, Dr. Young has not even reviewed the vast majority of the relevant literature and policy statements produced by professional associations in the fields of anthropology, psychology, medicine, or child welfare (to name only a few) because she deems them irrelevant to her inquiry. For many of these same reasons, Dr. Youngs testimony was excluded in Varnum v. Brien, No. CV5965 (Iowa Dist. Ct. 2007), a case in which she offered testimony on the same issues. Because Dr. Young lacks the necessary qualifications to serve as an expert on any issues relevant to this matter and has no reliable support for her conclusions, her testimony should be found inadmissible. Loren Marks. Dr. Marks seeks to opine generally on why the biological, marriage-based family is the ideal structure for child outcomes, but lacks any relevant qualifications or background to address that question with respect to the issues presented by this case whether biological, marriage-based families produce child outcomes that are better, worse or the same as same-sex parent families, or even opposite-sex parent, adoptive families. Dr. Marks has no discernible methodology on which to base his claims (indeed, at several points, he disavowed his own conclusions on the

Rebuttal expert discovery is ongoing and, pursuant to this Courts order of August 19, 2009, does not conclude until December 31, 2009. Doc #160. Proponents rebuttal experts have not yet been deposed. Accordingly, Plaintiffs and Plaintiff-Intervenor reserve the right to move in limine to exclude rebuttal expert reports, opinions, and testimony pursuant to Rules 104, 403, and 702 of the Federal Rules of Evidence following the completion of rebuttal expert discovery. 1

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importance of a biological link to child outcomes) and as such, his opinions are unreliable and irrelevant under Federal Rule of Evidence 702. Thus, this Court should find Dr. Marks testimony, opinions, and report inadmissible. David Blankenhorn. Mr. Blankenhorn has no expertise in any academic field relevant to this litigation, but nonetheless purports to offer expert opinion based on nothing more than his reading and reflection on works from various fields in which he lacks expertise. Mr. Blankenhorns report eschews any mention of either Prop. 8 or California generally. Instead, he seeks to offer his general conclusions on the purpose of the institution of marriage and the harms he personally believes will result from allowing marriage of gay and lesbian individuals. He has neither reviewed, nor is aware of any data that support his belief that the institution of marriage is designed primarily to provide a stable and loving environment for the biological children produced from that marriage. Instead, he supports his views by stringing together quotations from various other authors and pointing to his list of the supposed harms of allowing gay and lesbian individuals to marry. This list consists of nothing more than a partial regurgitation of a list produced during an anonymous group thought experiment, and thus is not based on a reliable methodology as is required of admissible expert conclusions under the Federal Rules of Evidence. As such, his opinions should be deemed inadmissible. In short, these individuals are not qualified to serve as expert witnesses. More importantly, each of their generic conclusions, untethered to any of the specific factual issues in this case, combined with the lack of any discernible methodology to support them, renders each of their opinions unreliable and irrelevant under Federal Rule of Evidence 702. For the reasons explained herein, it is entirely appropriate for this Court to exclude these witness testimony in advance of trial. However, if the Court determines that it would be appropriate to explore their qualifications at trial through direct and cross-examination, Plaintiffs and Plaintiff-Intervenor ask the Court to exclude their testimony from evidence, or accord it little or no weight, after such evidence is presented during trial.

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II.

THE LEGAL STANDARD GOVERNING EXPERT TESTIMONY

Federal Rule of Evidence 702 provides that expert testimony relating to scientific, technical, or other specialized knowledge is admissible only if it will assist the trier of fact to understand the evidence or to determine a fact in issue. Fed. R. Evid. 702. A witness qualified as an expert may only offer testimony in the form of an opinion or otherwise, if: (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. Fed. R. Evid. 702. In practical terms, this means that: (1) Proponents Proposed Experts must qualify as experts, (2) the testimony, reports, and opinions of Proponents Proposed Experts must be based on scientific, technical, or other specialized knowledge and concern a matter beyond a laypersons understanding; and (3) the testimony, reports, and opinions of Proponents Proposed Experts must be reliable and relevant. See, e.g., United States v. Hankey, 203 F.3d 1160, 1168 (9th Cir. 2000). Additionally, expert testimony is subject to general evidentiary rules, such as Federal Rule of Evidence 403. See id. A. The Witness Must Qualify as an Expert As a preliminary matter, a witness must first qualify as an expert before he or she may proffer expert testimony. See Fed. R. Evid. 104(a). A witness may be qualified as an expert on the basis of knowledge, skill, experience, training or education. See Fed. R. Evid. 702. While Rule 702 contemplates a broad conception of expert qualifications that may be satisfied by a minimal foundation of knowledge, skill, and experience, see Thomas v. Newton Intl Enters., 42 F.3d 1266, 1269 (9th Cir. 1994), a witness still must have some foundation of knowledge, skill, or experiencea witness with cursory or very limited experience does not satisfy this foundation requirement. See, e.g., Jinro Am. Inc. v. Secure Investments, Inc., 266 F.3d 993, 10051006 (9th Cir. 2001), amended by 272 F.3d 1289 (9th Cir. 2001) (finding purported expert on Korean business culture unqualified because witness lacked legal, business, or financial expertise to evaluate substance of transaction at issue, and witness had no education or training as a cultural expert or on Korean culture specifically); LuMetta v. United States Robotics, Inc., 824 F.2d 768, 771 (9th Cir. 1987) (affirming district courts

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finding that proffered witnesses were unqualified to serve as experts because of their minimal experience and personal knowledge regarding the subject of their proposed testimony). B. The Witness Testimony Must Be Based on Scientific, Technical, or Other Specialized Knowledge and Must Concern a Matter Beyond a Laypersons Common Knowledge In order to be admissible expert testimony, the testimony must be based on scientific, technical, or other specialized knowledge [that] will assist the trier of fact. Fed. R. Evid. 702. A witness may not testify as an expert unless he or she testifies about matters that are beyond the ability and experience of the average layperson. See United States v. Vallejo, 237 F.3d 1008, 1019 (9th Cir. 2001), amended by 246 F.3d 1150 (9th Cir. 2001) (explaining expert testimony must also address an issue beyond the common knowledge of the average layman); Beech Aircraft Corporation v. United States, 51 F.3d 834, 842 (9th Cir. 1995) (excluding purported experts who were to offer testimony deciphering audio recordings because hearing is within the ability and experience of the trier of fact.) Testimony on an issue not outside a laypersons understanding does not assist the trier of fact and is thus not admissible expert testimony. C. The Witness Testimony Must be Reliable and Relevant Under Federal Rule of Evidence 702, the trial judge is charged with the task of ensuring that an experts testimony both rests on a reliable foundation and is relevant to the task at hand. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 591592 (1993). This gatekeeping obligation applies not only to scientific testimony, but also to testimony based on technical and other specialized knowledge. See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147150 (1999). Accordingly, Proponents bear the burden of establishing by a preponderance of the evidence that the testimony, opinions, and reports of Proponents Proposed Experts are relevant and reliable. See Fed. R. Evid. 104(a); Daubert, 509 U.S. at 589593. 1. Reliability

To be reliable, an experts conclusions must be based on the knowledge and experience of his or her discipline, rather than on subjective belief or unsupported speculation. See, e.g., Daubert, 509 U.S. at 589590; Kumho Tire, 526 U.S. at 148. The trial court must make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom 4
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the same level of intellectual rigor that characterizes the practice of an expert in the relevant field. Kumho Tire, 526 U.S. at 152 (emphasis added). In cases of scientific testimony, this means that an experts testimony must not only reflect scientific knowledge, but it also must be derived by the scientific method and the work product must amount to good science. See Daubert v. Merrell Dow Pharmaceuticals, 43 F.3d 1311, 1315 (9th Cir. 1995) (emphasis added) (Daubert II). In cases of technical or other specialized testimony, the same standard applies, as would be applied to that particular field. See Kumho Tire, 526 U.S. at 147150. In essence, the Court must ensure that junk science plays no part in the decision. Mukhtar v. Cal. State Univ., 299 F.3d 1053, 1063 (9th Cir. 2002), amended by 319 F.3d 1073 (9th Cir. 2003). The following non-exclusive factors may be considered in evaluating the reliability of an experts methodology or technique: (1) whether the methodology or technique used can be (and has been) tested; (2) whether the methodology or technique has been subjected to peer review and publication; (3) whether the methodology or technique has a known potential rate of error; and (4) whether the methodology or technique is generally accepted in the relevant scientific or technical community. See Daubert, 509 U.S. at 591, 593594; Kumho Tire, 526 U.S. at 149150. Whether the experts testimony grow[s] naturally and directly out of research they have conducted independent of the litigation, or whether they have developed their opinions expressly for purposes of testifying is particularly significant in evaluating reliability. Daubert II, 43 F.3d at 1317 (emphasis added). The Court, with few exceptions, may not ignore the fact that a scientists normal workplace is in the lab or the field, not the courtroom or the lawyers office. Id. If evidence of prelitigation research or peer review is not available, the expert must (1) explain precisely how they went about reaching their conclusions and (2) point to some objective source a learned treatise, a policy statement of a professional association, a published article in a reputable science journal or the like to show that they have followed the scientific method as it is practiced by (at least) a recognized minority of scientists in their field. Carnegie Mellon Univ. v. Hoffman-LaRoche, Inc., 55 F. Supp. 2d. 1024, 1030, 1034 (N.D. Cal. 1999), citing Daubert II, 43 F.3d at 1319. Finally, the Court must inquire into whether the witness has applied the principles and methods reliably to the facts of the case. See Daubert, 509 U.S. at 593. Although the trial court may 5
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not decide upon the correctness of the experts conclusion, it may conclude that there is simply too great an analytical gap between the data and the opinion proffered. Domingo ex rel. Domingo v. T.K., 289 F.3d 600, 607 (9th Cir. 2002) (quoting General Electric v. Joiner, 522 U.S. 136, 146 (1997)). In other words, the necessary connection between the experts methodology and ultimate conclusion may not be established on speculation alone. Joiner, 522 U.S. at 146 ([N]othing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert.) 2. Relevance

In addition to being based reliable, an experts testimony must be relevant. The Court must assess whether the proffered expert testimony is sufficiently tied to the facts of the case such that it will assist the trier of fact to understand the evidence or to determine a fact in issue. Daubert, 509 U.S. at 591 (citing Fed. R. Evid. 702). Specifically, there must be a fit or valid connection between the experts reasoning or methodology and the pertinent inquirythe facts at issuebefore the Court. Daubert, 509 U.S. at 591593. In the context of this case, this Court has already identified areas of factual dispute that may be relevant to the issues presented in three areas: (1) the appropriate level of scrutiny under the Equal Protection clause; (2) evaluation of the state interests Proponents assert as bases for Prop. 8; and (3) whether Prop. 8 discriminates based on sexual orientation or gender or both; and (4) whether Prop. 8 was passed with a discriminatory intent. Doc #76 at 69. With respect to each of these categories, the Court elaborated the areas of factual development that may assist the Court in deciding these issues: D. The Probative Value of the Purported Experts Testimony Must Outweigh its Prejudicial Effect Finally, as with all evidence, expert testimony may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, waste of time,

25 undue delay, or needless presentation of cumulative evidence. Fed. R. Evid. 403; United States v. 26 Verduzco, 373 F.3d 1022, 10321035 (9th Cir. 2004) (affirming trial courts exclusion of testimony 27 of expert witness under Fed. R. Evid. 403). Because expert evidence may be misleading and is 28
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difficult to evaluate, a judge exercises more control over experts than lay witnesses in weighing prejudice against probative value. Daubert, 509 U.S. at 595 (quoting Jack B. Weinstein, Rule 702 of the Federal Rules is Sound, 138 F.R.D. 631, 632 (1991)). III. THE COURT SHOULD EXCLUDE THE TESTIMONY OF PROPONENTS PROPOSED EXPERTS YOUNG, MARKS AND BLANKENHORN Proponents offer Katherine Young, Loren Marks and David Blankenhorn as expert witnesses in this case. The reports of each of these witnesses and their statements during their depositions

7 establish that they do not meet the requirements set forth in Federal Rule of Evidence 104, 403 and 8 702. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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A.

Katherine Young 1. Dr. Young is Not Qualified to Offer an Expert Opinion on Any Issue in This Case

Proponents proffer Katherine Young, a professor in the Faculty of Religious Studies at McGill University, as an expert in comparative religion. (Young Expert Report (Young Rep.) 1.) Dr. Young seeks to offer her expertise to explain what universally constitutes marriage and why. (Id.) Dr. Young is not an expert in sociology, psychology, anthropology, biology, medicine, child development, statistics, survey construction and methodology or political science. (Young Dep. 7:820; 37:14-38:9, November 13, 2009.) She admits she has not submitted any articles for peer review in any relevant field. (See, e.g., id. at 11:19-13:5.) Indeed, her expertise is far more narrow than the term comparative religion might indicate. She considers herself an expert only in the field of religious studies, and then only in Hinduism. (Id. at 29:11-19; 60:19-25.) She does not specialize in American religions, and she is not an expert on American denominations. (Id. at 65:14-16; 67:5-11.) She has not studied marriage of same-sex couples in California, the United States, or in the world generally. (Id. at 104:14-25.) As an academic in the field of Hindu religious studies, Dr. Young simply has no foundation of knowledge, skill or experience necessary to serve as an expert on comparative religion and certainly not on any of the factual issues presented by this case. Indeed, she has acknowledged that the separation of church and state renders any comparison between legal regimes based on religion (i.e., Hindu) to western civil law regimes inapposite to the question of whether Prop. 8 is unconstitutional under Equal Protection Clause. (Id. at 232:21-233:6.) 7
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Accordingly, Dr. Young lacks even a minimal foundation of knowledge required by Federal Rule of Evidence 702 to qualify her as an expert in this case. See, e.g., LuMetta, 824 F.2d at 771 (affirming exclusion of experts for their minimal experience and lack of substantial personal knowledge of the subject matter relevant to the case). 2. Dr. Youngs Opinion Lacks Relevance to the Factual Issues of this Case

This Court has identified certain factual issues that may be pertinent to the resolution of the issues presented by this litigation. Doc #76 at 69. Those issues are specific to the factual situation presented in this case the passage of Prop. 8 in California and the resulting deprivation of the constitutional rights of gay and lesbian individuals in California. Not only does Dr. Youngs testimony in her expert report and deposition have no relationship to any of the issues identified by the Court, but Dr. Young has expressly disclaimed her willingness or ability to offer expert testimony on those issues, even when those issues might have some interplay with her study of religion. Specifically, Dr. Young has stated that she has no opinion on: (1) whether permitting marriage of same-sex couples would affect the number of heterosexual marriages or divorces (id. at 120:3-14); (2) whether permitting marriage of same-sex couples affects the desire of heterosexuals to marry (id. at 120:15-18); (3) whether or not discrimination against gay and lesbian individuals causes stress or psychological damage (id. at 172:5-16; 173:18-25); (4) whether or not prohibiting gay and lesbian individuals from marrying would have an adverse effect on them or their children, or whether permitting them to marry would benefit them and their children. (Id. at 191:17-192:1.) She has further stated that she has no opinion on what proportion of people opposed to marriage of same-sex couples in California were motivated primarily by their religious beliefs. (Id. at 69:6-13.) In short, Dr. Young seeks to testify on some broad-based conception of the universal features and functions of marriage that have no relationship to any of the factual issues in dispute and is based on little more than her speculation that such musings might be relevant. They are not and, even if testimony on such supposed universal truths were somehow relevant, any opinion Dr. Young might provide could not meet the standards for reliable expert testimony under Federal Rule of Evidence 702. Indeed, any opinions Dr. Young has by her own admission are not based on review of any studies that might enable her to offer conclusions on any issue in this case, and thus her 8
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opinions are based on nothing more than the subjective belief or unsupported speculation found insufficient in Daubert. Daubert, 509 U.S. at 589590. 3. Dr. Youngs Opinion Lacks a Reliable Methodology

As an initial matter, Dr. Young lacks any methodology for arriving at the conclusions stated in her report and deposition. Her report consists of nothing more than her examination of a random selection of societies to search for patterns that she categorizes as universal. (Young Rep. 2, 8.) And her comparative study of the worldview of major cultures and religions and the worldviews of small-scale societies is based on nothing more than her review of the work of one other academic who did not consider the possibility of marriage of same-sex couples. (Young Rep. 2, 12; Young Dep. 137:1-141:18.) Dr. Young has no systematic criteria for determining what constitutes a pattern or what can determine universality and even concedes that these characterizations are not absolute. (Young Rep. 2.) This haphazard sampling cannot constitute a methodology and amounts to little more than a recitation of Dr. Youngs personal musings on what might be included in the definition of marriage. The absence of any discernible methodology renders Dr. Youngs testimony inadmissible as unreliable under Federal Rule of Evidence 702. Daubert, 509 U.S. at 590 (Proposed testimony must be supported by appropriate validation); Daubert II, 43. F.3d at 1319 (experts must explain precisely how they went about reaching their conclusions); Jinro America Inc., 266 F.3d at 1006 (excluding impressionistic generalizations based on haphazard experiences, anecdotal examples, and news articles). Indeed, Dr. Young previously offered virtually identical testimony in litigation raising similar issues in Varnum v. Brien, No. CV5965 (Iowa Dist. Ct. 2007), and the trial court there ruled Dr. Youngs testimony inadmissible under the Iowa rules of evidence for precisely this reason. (See Declaration of Rebecca Justice Lazarus, Exh. G at 67.) Moreover, by definition, Dr. Young cannot bring the same level of intellectual rigor that characterizes the practice of an expert in the relevant field, Kumho Tire, 526 U.S. at 152, to her testimony because she admits that she has not studied any issues central to the factual disputes in this case. She purports to offer opinions and conclusions on the importance of protecting her defined norm of marriage and predicts that changes in those norms would destabilize marriage. (Young Rep. 11; Young Dep. 222:12-15.) But Dr. Young has not studied whether allowing gay and lesbian 9
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individuals to marry would actually affect that norm. For example, Dr. Young has not studied: (1) the extent to which permitting marriage of same-sex couples affects the desire of heterosexuals to marry (id. at 120:15-18); (2) the extent to which permitting marriage of same-sex couples affects the stability or number of heterosexual marriages (id. at 119:10-120:18); (3) whether civil unions are equally as successful as marriage at creating durable relationships (id. at 87:20-88:23); or (4) the effects of domestic partnership laws or civil unions on marriage (id at. 95:4-97:18; 98:7-101:2). In effect, Dr. Youngs failure to offer any support for her conclusions renders her opinions little more than junk science that the Court must ensure takes no part in the decision. Mukhtar, 299 F.3d at 1063. Indeed, the lack of any objective data results in internal inconsistencies in Dr. Youngs analysis that further undermines the reliability of her conclusions. She acknowledges that it is not necessarily harmful (and, in fact, can be beneficial) if norms of the past change to accommodate alterations in social values and understandings (id. at 197:12-18), but has not studied the conditions in the United States that might be relevant to whether it is desirable for the United States and its citizens to end the prohibition on marriage by gay and lesbian individuals. (Id. at 211:16-23.) Dr. Young also cannot offer reliable testimony because she has failed to consult, review or evaluate any of the relevant authorities (and their associated methodologies) in any academic field on the issues surrounding the marriage rights of gay and lesbian individuals. She has not endeavored to determine what the various professional associations who have issued opinions on the implications of marriage of same-sex couples have said with respect to any of the opinions she advances in her expert report. (Id. at 152:15-153:23.) Indeed, she believes that such information would not be relevant to her analysis. (Id. at 156:5-19.) She does not know whether the professional associations in the fields of psychology, anthropology or sociology have taken a position on whether gay and lesbian individuals should be permitted to marry one another, much less what those positions are. (Id. at 105:8-106:4; 152:15-153:23.) She offers opinions on the likely effects of legalizing same-sex marriage on children (Young Rep. 18), but she has not studied what proportion of children are being raised by two married people of the opposite sex. (Id. at 73:6-19.) Similarly, she has no knowledge of any statements by professional organizations concerning whether or not same-sex parents are as 10
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effective as heterosexual parents in raising well-adjusted children. (Id. at 106:5-107:16; 108:15109:22.) She has not looked at the question of whether psychologists and sociologists believe it is necessary to have time series data to address the effect of marriage of same-sex couples on child welfare. (Id. at 91:21-92:3.) Dr. Young simply ignores what others with actual expertise in relevant academic fields have concluded or considered in analyzing the same question she purports to answer. Such willful blindness renders her report unreliable. See, e.g., Daubert, 509 U.S. at 589590 (holding expert conclusions must be based on the knowledge and experience of his or her discipline, not on subjective belief or unsupported speculation); LuMetta, 824 F.2d at 771 (affirming exclusion of witnesses who lacked knowledge about the relevant subject matter). Even in the area of religion, in which Dr. Young purports to have some expertise, she has failed to review or study any information that might provide a basis for her conclusions in this case. For example, she has not studied how the major Western religions or U.S. churches view homosexuality. (See, e.g., Young Dep. 63:7-20 (Roman Catholicism), 69:21-70:10 (Baptist), 70:1112 (Presbyterianism)). These deficiencies underscore that Dr. Young has not (and cannot) apply the principles she espouses to the facts of this case in any reliable manner. 4. Dr. Youngs Testimony Would Waste Time and Create Confusion and is thus Inadmissible Under Federal Rule of Evidence 403

Dr. Young does not even purport to offer any opinion on any factual dispute in this case, and her opinions are unreliable. Thus, consideration of Dr. Youngs testimony would waste time and 19 create confusion. See Fed. R. Evid. 403. Accordingly, Dr. Youngs testimony also fails to satisfy the 20 requirements of Federal Rule of Evidence 403 and should be excluded. 21 22 23 24 at Louisiana State University. (Marks Expert Report (Marks Rep.) 1.) Dr. Marks seeks to testify 25 as an expert on whether a biological, marriage-based family is the ideal structure for child 26 outcomes. (Id.) But Dr. Marks does not have the experience or education necessary to make a 27 determination on what type of family structure is ideal for child outcomes. His self-described areas 28
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B.

Loren Marks 1. Dr. Marks is Not Qualified to Offer an Expert Opinion in this Case

Proponents also proffer Dr. Loren Marks, an associate professor at the College of Agriculture

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of research interest include faith and families and African American families discrete areas that hardly provide Dr. Marks an adequate foundation to opine on an ideal structure for child outcomes. (Marks Dep. 44:10-16, October 30, 2009.) He has never conducted original research on children with gay or lesbian parents, and has never published or even written any works on the issue. (Id. at 58:312.) Similarly, Dr. Marks work has not even focused on the general subject area of child adjustment. (Id. at 53:21-54:10.) Dr. Marks expert report further demonstrates his lack of qualifications. As Dr. Marks has no experience in the field in which he is purported to be an expert, Dr. Marks expert report contains no references to his own work, and he did not consider any of his own work for the report. See Marks Rep. Thus, Dr. Marks lacks the experience or knowledge required to qualify as an expert on the ideal family structure for child outcomes. See LuMetta, 824 F.2d at 771 (excluding experts who had some knowledge, but lacked experience with either the specific contract in question or the specific type of company in question). 2. Dr. Marks Report, Opinions, and Testimony Have No Relevance to this Litigation

Dr. Marks expert report, opinions, and testimony should be excluded because the subjects upon which Dr. Marks opines have no relevance to the factual issues in this litigation. To be 16 admissible, an expert opinion must be sufficiently tied to the facts of the case that it will aid the jury 17 in resolving a factual dispute. See, e.g., Daubert, 509 U.S. at 591. The only factual dispute that Dr. 18 Marks has been proffered to opine on is Proponents claim that the state has an interest in preventing 19 marriage of gay and lesbian individuals because it would negatively affect child outcomes. This 20 Court has specified that this specific factual dispute is whether a married mother and father provides 21 the optimal child-rearing environment and whether excluding same-sex couples from marriage 22 promotes this environment. Doc #76 at 78. Dr. Marks report does not assist in answering those 23 questions, however, because he does not address child outcomes when the parents are of the same-sex 24 and thus cannot possibly illuminate any relevant factual disputes. Dr. Marks himself admits that his 25 expert report does not express an opinion about child outcomes for same-sex couples. (Id. at 114:226 115:14.) Dr. Marks report only addresses the comparison of outcomes for children in biological, 27 intact families with non-marital, divorced, and/or step-families. (Id. at 88:17-90:9.) All three of 28
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these categories exclude the relevant family unit at issue herea couple gay or straight, that biologically cannot have children, but together decide to adopt or utilize an egg or sperm donor. As Dr. Marks has asserted that his expert opinions are limited to those cited in his expert report and whatever shows up in [his] rebuttal,2 the universe of what Dr. Marks has to offer the Court, in way of expert opinion, lies in his expert report. (Id. at 61:10-62:4.) However, Dr. Marks expert report entirely fails to address the relevant issue at hand the outcomes of children of same-sex couples as compared to children of opposite sex couples who are biologically related to their children. Thus, Dr. Marks expert opinions must be excluded as they will not assist the Court to understand whether the Proponents claim that excluding same-sex couples from marrying will promote optimal outcomes. See Daubert, 509 U.S. at 591 (explaining expert opinion must assist trier of fact to resolve a factual dispute to be admissible). Further, Dr. Marks would be unable to draw any relevant conclusions from his understanding of studies comparing child outcomes in a biological, in-tact family with non-marital, divorced, and step-families, as he concedes that same-sex parents should be studied as their own discrete category. (See id. at 239:14-22.) Accordingly, Dr. Marks complete reliance on studies excluding same-sex parents undermines his ability to opine on the impact same-sex parents have on child outcomes. Joiner, 522 U.S. at 144145 (upholding district courts rejection of expert opinions because the opinions were based on studies that were too dissimilar to the facts presented in the relevant litigation and the experts failed to explain how and why they were able to extrapolate their opinions from the dissimilar studies). Moreover, in his deposition, Dr. Marks withdrew his claim that genetic parentchild relationships are important to child outcomes and noted that he knows of no empirical research that identifies biology as the cause of good outcomes for children. (Id. at 81:18-82:9; 147:9-21.) Dr. Marks also has no opinion as to the best family form for a child for which the intact, biological family (as he defines it) is unavailable. (Id. at 102:7-10.) Thus, Dr. Marks should not be permitted

Given the major deficiencies in Dr. Marks expert report, during his deposition, Dr. Marks claimed that he planned to prepare and submit a rebuttal report to specifically address literature on same-sex parents. (Marks Dep. 32:13-33:1, 37:8-40:1, 61:10-62:4.) Dr. Marks never submitted such a rebuttal. 13

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to extrapolate any opinions, as he has admitted that he has no familiarity with any material that would be able to support his conclusions without causing the analytical gap prohibited in Joiner, 522 U.S. at 145. 3. Dr. Marks Report, Opinions, and Testimony are Unreliable

In addition to being irrelevant, Dr. Marks expert opinions are unreliable. To arrive at his conclusions, Dr. Marks utilizes no discernible methodology. See Daubert II, 43 F.3d at 1319 (explaining that a failure to explain the methodology utilized to arrive at a conclusion does not satisfy the Daubert reliability requirement). At best, Dr. Marks expert report and testimony are akin to a shallow book report. As evidenced by his expert report and deposition testimony, Dr. Marks opinions are nothing more than brief, out-of-context quotations of other scholars. Reciting the conclusions or summaries of others, without offering explanation or elaboration on how these out-ofcontext conclusions from other studies relate to the immediate case, cannot be considered to meet the same level of intellectual rigor that characterizes the practice of an expert in the relevant field. See Kumho Tire, 526 U.S. at 152. Further, not only does Dr. Marks simply parrot the conclusions of others, Dr. Marks makes no effort to explain why such conclusions are applicable in the immediate case. Although [t]rained experts commonly extrapolate from existing data, opinion evidence that is connected to existing data only by the ipse dixit of the expert may be excluded. See Joiner, 522 U.S. at 146. Further, without any context or insight into the quoted studies, it is impossible to determine if the studies themselves are reliable or being cited in a reliable manner that is true to their full findings. Not only does Dr. Marks fail to offer any analysis or insight into any of the studies he quoted, but he admits that he did not even completely read the studies cited in his report. (Marks Dep. 65:1066:6; 67:6-13.) Failing to read the sources upon which one entirely relies to draw conclusions can hardly be considered a hallmark of a reliable methodology.3 More critically, Dr. Marks did not know

Further calling into question Dr. Marks diligence, Dr. Marks admits that some of the work he has done should not be considered high quality social science. (Marks Dep. 50:10-14; 51:952:7; 54:12-17.) Dr. Marks also admits that none of his own published articles can be characterized as gold standard, high end work. (Id. at 71:1-7.) 14

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how the studies he cited actually defined the terms biological or intact an essential piece to understanding the meaning of the studies Dr. Marks relies upon for making his conclusions. (See, e.g., 158:12-159:8.) Dr. Marks was similarly unable to verify that the studies he cited that used the term biological parent defined it in a manner which excluded adoptive parents, as Dr. Marks purports the term biological parent should. In one instance, Dr. Marks even cites a study, which cited another study, that states most studies do not distinguish biological parents from adoptive parents. (Id. at 144:3-13.) This lack of clarity in how his sources use biological is clearly not because the definition of biological is unimportant to Dr. Marks findings Dr. Marks himself admits that using two sources, that each define the term differently, to draw one conclusion is problematic. (See id. at 139:14-140:9.) Thus, it would be hard for Dr. Marks to credibly claim that he employed the same level of intellectual rigor that an expert in his field would be expected to employ. See Kumho Tire, 526 U.S. at 152 (holding trial court must make certain that an expert . . . employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field). Dr. Marks himself also lacks familiarity with relevant studies that would assist him in coming to his conclusions. At the time of Dr. Marks deposition, Dr. Marks could only name two studies, one from 1996 and one from 2004, that compared different family structures, including same-sex parents. (See Marks Dep. 30:4-32:10.) Dr. Marks was unable to provide any specificity about either study at his deposition and did not cite either study in his expert report or list either study in his materials considered index. (See id; Marks Rep.) Dr. Marks was also unable to name or even generally describe any other studies comparing child outcomes by same-sex couples and heterosexual couples. (See id.) Dr. Marks stated that if he [was] a betting person he would assume that there have been studies that have come out recently that Im unaware of. (Marks Dep. 33:3-7.) Dr. Marks lack of relevant knowledge not only indicates a likely lack of methodology, it also indicates the opinions Dr. Marks has to offer about ideal child outcomes or child outcomes in same-sex families were developed purely for this litigation. An important hallmark of evaluating reliability is whether the purported experts opinions are based in research that was conducted independently from the litigation. See Daubert II, 43 F.3d at 1317. Clearly, Dr. Marks opinions asserted in this 15
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litigation were developed for the first time after being commissioned for this litigation. Accordingly, Dr. Marks was required to explain precisely how [he] went about reaching [his] conclusions which he has entirely failed to do. Id. Further, Dr. Marks admitted personal, religious views towards traditional marriage also undermine the objectivity (and thus reliability) of his conclusions. Dr. Marks religious conviction and personal dogma is that children are entitled to be born within the bonds of matrimony and to be reared by a father and mother who honor marital vows with complete fidelity. (Marks Dep. 260:15262:6.) This personal dogma was developed before Dr. Marks graduated from college and well before Dr. Marks began to consider himself a social scientist. (Id. at 275:5-276:3.) Dr. Marks admitted that this personal dogma ran around in [his] head when he wrote his expert report. (Id. at 274:8-275:4.) Accordingly, not only does Dr. Marks lack of methodology cast severe doubt about the admissibility of his conclusions, but Dr. Marks own possible personal bias calls his unsupported conclusions further into question. 4. Dr. Marks Report, Opinions, and Testimony Lack Probative Value and are thus Inadmissible Under Federal Rule of Evidence 403

The complete irrelevance of Dr. Marks conclusions to any issue in the case demonstrates the lack of any probative value his conclusions may offer the Court. Thus, Dr. Marks report, opinions, 17 and testimony are inadmissible under Fed. R. Evid. R. 403. 18 19 20 21 well-being with a particular focus on the institution of marriage. (Blankenhorn Expert Report 22 (Blankenhorn Rep.) 1.) Mr. Blankenhorn considers himself to be an expert on marriage, 23 fatherhood and family structure. (Blankenhorn Dep. 116:8-22, November 3, 2009.) But none of Mr. 24 Blankenhorns undergraduate or graduate course work focused on any of these issues. Indeed, he did 25 not take any courses in anthropology, psychology, child welfare or sexual orientation. (Id. at 19:1826 22; 22:6-17; 24:18-22.) Rather, his undergraduate course work was focused on labor history, and his 27 masters thesis researched the comparative contributions of two British cabinetmakers trade unions 28
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C.

David Blankenhorn 1. Mr. Blankenhorn is Not Qualified to Offer an Expert Opinion in this Case

Proponents submit David Blankenhorn as an expert on issues of family policy and family

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in shaping the emergence of the British working people. (Id. at 20:3-9; 23:11-24:17.) Other than his bachelors and masters work focused on labor history, Mr. Blankenhorn has no other academic training. (Id. at 25:6-11.) He does not have a Ph.D. (Id.) His claim to expertise in the areas in which he seeks to testify is based on nothing more than his work with the Institute for American Values and his continuing anthropological, historical and cultural study of the institution of marriage. (Id. at 30:1-6; 54:3-15.) This study consists of reading and reflecting on the texts in the field and discussions with other scholars. (Id. at 54:3-15.) He has never published any work in any peer-reviewed journal; most of his published work is produced by his organization, the Institute for American Values. (Id. at 55:19-56:14.) In short, Mr. Blankenhorn has no expertise in any relevant academic field and is not qualified to serve as an expert under Federal Rule of Evidence 104. 2. Mr. Blankenhorn Has No Relevant Opinions to Offer

It is not at all clear what relevance Mr. Blankenhorns self-described personal views on marriage and family have to the specific factual issues in this case. (Id. at 92:20-93:2.) Mr. Blankenhorn has not reviewed the Complaint in this action. (Id. at 74:12-18.) He is not offering any opinions about the actual motivation of voters or official proponents in passing Prop. 8. (Id. at 84:1585:2.) Indeed, he does not mention either Prop. 8 or the state of California in his report. (See generally Blankenhorn Rep.; see also Blankenhorn Dep. 76:13-17; 77:21-78:2; 89:21-90:18.) In these circumstances, Mr. Blankenhorn is incapable of tying his proffered testimony to the facts of the case, and any testimony he might give would be irrelevant to the issues in this case. See Daubert, 509 U.S. at 591 (holding expert testimony must be sufficiently tied to the facts of the case such that it will assist the trier of fact to understand the evidence or to determine a fact in issue to be admissible). 3. Mr. Blankenhorns Conclusions Are Not Based on a Discernible Methodology and are Unreliable

Given the lack of Mr. Blankenhorns expert qualifications, it is not surprising that his conclusions are based on no objective data or discernible methodology, and that there are numerous 27 inconsistencies in his testimony. In his report, Mr. Blankenhorn states that [a]s an intellectual 28
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matter, whether or not to grant equal marriage rights to gay and lesbian persons depends importantly on ones answer to the question, What is marriage? (Blankenhorn Rep. 3.) He then groups quotations taken from a number of sources into two categories those quotations he believes support the argument that marriage is fundamentally a private adult commitment and those that support the argument that marriage is fundamentally a pro-child social institution. (Blankenhorn Rep. 311.) Although he acknowledges that it is not possible to demonstrate empirically that the view that marriage is fundamentally a pro-child social institution is the only valid view (Blankenhorn Rep. 11), Mr. Blankenhorn nonetheless asserts that it is possible to demonstrate that that view is consistent with much of the most respected scholarship of the modern era and widely embraced by intelligent, fair-minded leaders and citizens of good will. (Blankenhorn Rep. 11.) He then argues that marriage as an institution focuses on bringing together the male and female of the species into a common life (Blankenhorn Rep. 12) because humans favor the survival and success of the human child. (Id. at 13.) To support this claim, Mr. Blankenhorn again lists several pages of quotations taken from various selected articles and reports. (Id. at 13-15.) This list of quotations, together with Mr. Blankenhorns personal views, are the sole basis for his conclusion that [i]f human beings were not sexually embodied creatures who everywhere reproduce sexually and give birth to helpless, socially needy offspring who remain immature for long periods of time and who therefore depend decisively on the love and support of both of the parents who brought them into existence, the world almost certainly would not include the institution of marriage. (Blankenhorn Rep. 15; Blankenhorn Dep. at 105:16-106:9.) Indeed, this type of testimony embodies the very type of expert testimony prohibited in General Electric v. Joiner, 522 U.S. at 146. In a nutshell, Mr. Blankenhorns conclusion is that the primary purpose of marriage is to insure that children receive love and support from their biological parents. But that conclusion is unsupported by logic let alone data or research. Mr. Blankenhorn admits that the law governing who can marry does not inquire into the motivation of those individuals to marry procreative or otherwise. (Blankenhorn Dep. 174:19-190:2; 189:17-190:2.) Indeed, he acknowledges that people who cannot procreate at all are still allowed to marry, as are people who have had children previously and abandoned them. (Id. at 189:17-190:2;195:4-199:17.) He also admits that a lesbian or gay 18
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couple that adopts a child is no less attentive or loving or caring toward their children than a heterosexual couple. (Id. at 211:8-21.) Indeed, in a situation in which biological parents do not want a child, he is not opposed to a gay or lesbian couple adopting that child. (Id. at 231:6-22.) Although Mr. Blankenhorn personally opposes marriage of same-sex couples on these grounds (id. at 92:20-93:2), he relies on no discernible methodology to support his views. Indeed, he summarizes the process through which he arrived at these views for purposes of this litigation as devoting some days and weeks to reading and trying to organize my thoughts and trying to refresh my recollection about other previous work that I have done. (Id. at 116:8-22.) He has expressly disclaimed relying on anything more rigorous to form his opinion in this case (id. at 105:16-106:9) and admits he has not even read all of the materials considered listed in his expert report in their entirety. (Id. at 110:8-22.) Despite Mr. Blankenhorns thesis that marriage confers advantages on children biologically related to both parents in the marriage, in his deposition, he could not provide the name or authors of any published studies that compare one family where both parents have a biological connection to the child and a family where one or both parents is not biologically connected to the child. (Id. at 267:5-272:16.) And he admits that he certainly did not consider any such study in assembling his report. Id. Similarly, he is aware of no studies supporting the view that children raised from birth by gay or lesbian couples have any worse outcomes than those raised by biological different sex parents. (Id. at 272:17-21.) He candidly admits that allowing a same-sex couple with children to marry would likely be beneficial for both the couple and their children. (Id. at 282:21-283:10.) Mr. Blankenhorn also purports to offer the opinion that marriage of gay and lesbian individuals will deinstitutionalize marriage, transforming it from a pro-child social institution into a post-institutional private relationship. (Blankenhorn Rep. 22.) Of course, Mr. Blankenhorns conclusion on this point is built on his argument that marriage is a pro-child institution and, as explained above, he has no reliable methodology or basis to support that conclusion. Moreover, Mr. Blankenhorn admits that the deinstitutionalization of marriage was occurring long before marriage of gay and lesbian individuals was legalized in any jurisdiction. (Blankenhorn Dep. 293:21-294:13.) Indeed, he identifies the primary drivers of the phenomenon as: divorce, out of wedlock 19
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childbearing and nonmarital cohabitation, not marriage between people of the same-sex. (Id. at 288:13-290:2.) Mr. Blankenhorn lists nineteen specific answers to the question of the potential harms he believes will result from allowing gay and lesbian individuals to marry. (Blankenhorn Rep. 22-24.) But these answers can hardly constitute reliable expert testimony. The list is taken word for word from his book Future of Marriage with the exception that five answers in the book were omitted. (Blankenhorn Dep. 314:2-315:11.) But Mr. Blankenhorn did not develop the list in either Future of Marriage or his report. Rather, the list represents Mr. Blankenhorns report on the results of a group thought experiment in which the list was developed by a group of anonymous4 individuals who met in three one-day sessions. (Id. at 315:12-316:10; 318:6-18.) The methodology employed by the group to generate the list consisted of writing ideas voiced by members of the group on chalkboards and poster paper over the course of these three meetings. (Id. at 316:21-317:16; 320:1014; 320:21-321:3; 322:1-6.) This is a far cry from what courts in this Circuit and elsewhere have required to constitute a reliable methodology on which to base expert testimony and conclusions. See, e.g., Domingo, 289 F.3d at 607 (reasoning between steps in a theory must be based on objective, verifiable evidence and scientific methodology of the kind traditionally used by experts in the field). Indeed, it would be impossible to even apply, much less evaluate, the factors courts generally consider in evaluating the reliability of the experts methodology because Mr. Blankenhorns group thought experiment is based on no methodology at all. See Daubert II, 43. F.3d at 1319 (experts must explain precisely how they went about reaching their conclusions); Mukhtar, 299 F.3d at 1063 (the trial judge must ensure that junk science plays no part in the decision); Jinro Am. Inc., 266 F.3d at 1006 (excluding impressionistic generalizations). 4. Mr. Blankenhorns Testimony Would Waste Time and Create Confusion and is thus Inadmissible Under Federal Rule of Evidence 403

Mr. Blankenhorn possesses no expertise in any relevant academic field. He does not offer opinions relevant to the specific facts in dispute, and his conclusions do not even approach the 26 27 28
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Mr. Blankenhorn refused to identify the participants in the group thought experiment when asked to do so at his deposition. (Blankenhorn Dep. 334:21-335:21.) 20

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requirements for reliable expert testimony under the Federal Rules of Evidence. Because inclusion of his testimony and conclusions would provide no benefit to the Court and, indeed, is likely to waste time and confuse the issues in this case, this Court should find Mr. Blankenhorns testimony inadmissible. IV. THE COURT SHOULD EITHER EXCLUDE THE TESTIMONY OF THESE PROPOSED EXPERTS BEFORE TRIAL OR REJECT SUCH TESTIMONY AFTER EXPLORING THEIR QUALIFICATIONS DURING TRIAL For the reasons set forth above, Plaintiffs and Plaintiff-Intervenor believe that this Court properly could exclude the reports and testimony of Katherine Young, Loren Marks, and David Blankenhorn in advance of trial and bar Proponents from calling them as witnesses. Even in a bench trial, this Court may exclude the expert testimony in limine if it wishes, as the trial judge acting as trier of fact has broad discretion to admit or exclude expert testimony that is helpful to its decision. CFM Comm., LLC v. Mitts Telecasting Co., 424 F. Supp. 2d 1229, 1234 (E.D. Cal. 2005) (citing Beech Aircraft, 51 F.3d at 842 (holding that the court properly excluded from a bench trial expert opinion concerning what could be heard in a tape recorded conversation because the trial judge was in a better position to make that determination)). However, if the Court determines that it would be appropriate to explore these experts qualifications during trial, see Kumho Tire, 526 U.S. at 142; Verduzco, 373 F.3d at 1032; United States v. Alatorre, 222 F.3d 1098, 11031104 (9th Cir. 2000), Plaintiffs and Plaintiff-Intervenor are willing to defer any decision on their motion until after the Proponents Proposed Experts offer full testimony via direct and cross examination. This approach is commonly used in bench trials because the Court is both the gatekeeper and the finder of fact. See, e.g., Volk v. United States, 57 F. Supp. 2d 888, 896 n.5 (N.D. Cal. 1999) (noting that the Daubert gatekeeping obligation may be less pressing in connection with a bench trial and the court may properly consider Daubert challenges either in limine or at trial); Laconner Assoc. Ltd. Liab. Co. v. Island Tug & Barge Co., 2008 WL 2077948, at *2 (W.D. Wash. May 15, 2008) (reserving ruling on admissibility of expert testimony until after vigorous cross examination and presentation of contrary evidence); Fechtig v. Sea Pac.

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Inc., 2006 WL 2982148 (N.D. Cal. 2006) (rejecting experts theoretical conclusions after hearing expert testimony and determining what weight to give the testimony).5 V. CONCLUSION

For the reasons set forth above, Plaintiffs and Plaintiff-Intervenor request that the Court find that the expert testimony of Katherine Young, Loren Marks, and David Blankenhorn is inadmissible at trial, or accord such testimony little or no weight. Plaintiffs and Plaintiff-Intervenors leave to this Courts discretion whether it wishes to exclude the testimony in advance of the bench trial in this matter or to do so after exploring each witness qualifications on the witness stand. // // //

In so doing, Plaintiffs and Plaintiff-Intervenor do not waive the objections set forth in this motion by their participation in examination of Proponents Proposed Experts. See, e.g., Jones v. United States, 127 F.3d 1154, 1156 (9th Cir. 1997) (noting that after two week bench trial, trial court granted Plaintiffs Daubert motion in limine to exclude expert). 22

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Respectfully Submitted, DATED: December 7, 2009 GIBSON, DUNN & CRUTCHER LLP Theodore B. Olson Theodore J. Boutrous, Jr. Christopher D. Dusseault Ethan D. Dettmer Matthew D. McGill Amir C. Tayrani Sarah E. Piepmeier Theane Evangelis Kapur Enrique A. Monagas

By: and

/s/ Theodore B. Olson

BOIES, SCHILLER & FLEXNER LLP David Boies Jeremy M. Goldman Roseanne C. Baxter Richard J. Bettan Beko O. Richardson Theodore H. Uno Attorneys for Plaintiffs KRISTIN M. PERRY, SANDRA B. STIER, PAUL T. KATAMI, and JEFFREY J. ZARRILLO DENNIS J. HERRERA City Attorney THERESE M. STEWART Chief Deputy City Attorney DANNY CHOU Chief of Complex and Special Litigation RONALD P. FLYNN VINCE CHHABRIA ERIN BERNSTEIN CHRISTINE VAN AKEN MOLLIE M. LEE Deputy City Attorneys

By:

/s/ Therese M. Stewart

Attorneys for Plaintiff-Intervenor CITY AND COUNTY OF SAN FRANCISCO

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ATTESTATION PURSUANT TO GENERAL ORDER NO. 45 Pursuant to General Order No. 45 of the Northern District of California, I attest that concurrence in the filing of the document has been obtained from each of the other signatories to this document. By: /s/ Theodore B. Olson

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v.

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA KRISTIN M. PERRY, et al., )

Plaintiffs, ) ) No. 09-CV-2292 VRW ) ) ) ) Defendants. )

ARNOLD SCHWARZENEGGER, in his official capacity as Governor of California, et al.,

Washington, D.C. Friday, October 30, 2009 Deposition of LOREN DEAN MARKS, called for examination by counsel for Plaintiffs in the above-entitled matter, the witness being duly sworn by CHERYL A. LORD, a Notary Public in and for the District of Columbia, taken at the offices of COOPER & KIRK PLLC, 1523 New Hampshire Avenue N.W., Washington, D.C., at 9:31 a.m., and the proceedings being taken down by Stenotype by CHERYL A. LORD, RPR, CRR.

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Dunn & Crutcher, for the plaintiffs. MS. KATSUR: Melanie Katsur, of Gibson

Dunn & Crutcher, also for the plaintiffs. MS. BERNSTEIN: Erin Bernstein, for

plaintiff intervenor, city and county of San Francisco. MR. THOMPSON: David Thompson, of Cooper &

Kirk, for the defendant intervenors. THE WITNESS: Loren Dean Marks.

Whereupon, LOREN DEAN MARKS was called as a witness by counsel for Plaintiffs, and, having been duly sworn by the Notary Public, was examined and testified as follows:

EXAMINATION BY COUNSEL FOR PLAINTIFF BY MR. McGILL: Q. Thank you for joining us today, Dr. Marks. Would you please state your full name for today's record. A. Yes.

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A.

The way that I just used, expert, was in

connection with the -- the lay audience with the general population. Q. As of approximately what date do you

believe that you became an expert? MR. THOMPSON: Objection to the extent it

calls for a legal conclusion. A. In connection with this -- this expert

report, the first one, in -- in academia generally, once -- once one has achieved tenure, that would be a widely accepted benchmark, not just landing a first job or receiving a Ph.D. degree, but achieving tenure would be a significant landmark. I think that's -- that's as good as most. Still inadequate, probably. BY MR. McGILL: Q. And do I remember correctly that you

became a tenured professor about -- was it June of 2008 that you said? A. Q. June of 2008. Do you consider yourself to be an expert

in your areas of primary research interest?

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A.

In the areas of faith and families and

specifically strong African American families, yes, yes, I would. Q. Are you an expert in child adjustment? MR. THOMPSON: A. Objection, vague.

Child adjustment is one of -- again one of

the many, many areas that I'm responsible for knowing something about. Is it one of my focal interest areas? No, it is not. BY MR. McGILL: Q. But you still consider yourself to be an

expert in child adjustment? A. By the standards of my field, I don't I do

study the specific concept of child adjustment. study child outcomes at some length, and family outcomes. Q. And you would not have contended in --

earlier than your date of being a tenured professor that you were an expert in any field, would you? MR. THOMPSON: the testimony. Objection, mischaracterizes

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generally. BY MR. McGILL: Q. Am I correct that you have never conducted

any original research on families headed by lesbian or gay parents? A. Q. Yes. Do any of your published writings or

articles in press discuss children raised by lesbian or gay parents? A. No, Mr. McGill, I don't believe they do

one way or the other, meaning positively or negatively. Q. Are there any other qualifications

that you have that we have not discussed that relate to your opinion as you've set it forth in your report? A. question. None come to mind at the moment that directly bear on it, but there -- there may be. Q. A. When were you retained as an expert? Mr. Thompson contacted me by phone in In the expert report -- that's a broad

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definition, any reasonable social scientist is going to admit that there are differences of interpretation. Certainly Dr. Lamb and I would agree on that point, I think. BY MR. McGILL: Q. You mentioned Dr. Lamb. Is he an authority in his field? MR. THOMPSON: A. He is. BY MR. McGILL: Q. field? MR. THOMPSON: Objection to the extent it Would you consider him an expert in his Objection, vague.

calls for a legal conclusion. A. I would. BY MR. McGILL: Q. Let us at last turn to your actual report. Could you please turn to paragraph 42, which appears on page 10 of what has been marked as exhibit 2. There you state: Based on available

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my earlier statement that I also have taken upon me the burden of challenge. This is -- you know,

scholarship is about strengths and challenges, not just dogmatically presenting one. Q. When is the first time you held the belief

that the ideal family structure is marriage between a man and a woman and a child biologically related to each? MR. THOMPSON: A. Objection, relevance. I don't know

Mr. McGill, I don't know.

how to answer that question. BY MR. McGILL: Q. Is it -- is it fair to say that you held

that view, you held that belief before your engagement as an expert in this case? A. Q. Yes. Is it fair to say you held that belief

before you received your Ph.D. degree? A. Q. Yes. Did you hold that belief before you

graduated from college? A. Yes.

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MR. McGILL: Thank You-

z
J

As Melanie wrote to
THE VIDEOGRAPHER:

me,

"you are done.

"

This concludes the

4
5

deposition of Dr. Loren Marks. The time is now 6:18 PM. The total nmber of videotapes used were l.
Thank you. (Whereupon,

l
B

at

6: 18 P.m.
)

, the taking of

the instant deposition ceased.

9 l_0

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L2
1_3

Signature of the Witness


SUBSCRIBED AND SWORN to

1-4
1_5

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Case3:10-cv-00257-JSW Document176-6
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Filed11/01/11 Page10 of 10 281


October 30, 2009

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CERTIFICATE OF COURT REPORTER UNITED STATES OF AMERICA DISTRICT OF COLUMBIA ) )

I, CHERYL A. LORD, the reporter before whom the foregoing deposition was taken, do hereby certify that the witness whose testimony appears in the foregoing deposition was sworn by me; that the testimony of said witness was taken by me in machine shorthand and thereafter transcribed by computer-aided transcription; that said deposition is a true record of the testimony given by said witness; that I am neither counsel for, related to, nor employed by any of the parties to the action in which this deposition was taken; and, further, that I am not a relative or employee of any attorney or counsel employed by the parties hereto, or financially or otherwise interested in the outcome of this action.

CHERYL A. LORD Notary Public in and for the District of Columbia My Commission expires April 30, 2011

Alderson Reporting Company 1-800-FOR-DEPO

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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. Pursuant to Local Rule 56.1, Plaintiff Edith Schlain Windsor submits this statement of material facts as to which there can be no dispute: I. Facts Relevant to Plaintiffs Claim A. The Parties 1. Plaintiff, Edith Schlain Windsor (Edie), is a citizen of the United States.

10 Civ. 8435 (BSJ) (JCF) ECF Case PLANTIFFS STATEMENT PURSUANT TO LOCAL RULE 56.1

She resides in New York County, New York. 2. Plaintiff is the sole executor of the estate of her late spouse, Thea Clara

Spyer (Thea). Affidavit of Edith Schlain Windsor (Windsor Aff.) 1. 3. Defendant United States of America is a proper defendant in this action.

Order and Mem. of June 2, 2011 at 9. 4. Defendant-Intervenor Bipartisan Legal Advisory Group of the United

States House of Representatives (BLAG) has intervened in this action for the limited purpose of defending the constitutionality of the challenged legislation, Section 3 of the Defense of Marriage Act. Order and Mem. of June 2, 2011 at 10; Def.-Intervenor Mot. to Intervene at 1.

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B.

Edie and Thea Were Legally Married 5. Edie met her late spouse Thea in 1963 at a restaurant in New York City,

and the two began a committed relationship that spanned five decades. Windsor Aff. 5. 6. After an engagement that lasted more than forty years, Edie and Thea

were legally married in a ceremony performed in Toronto, Canada, on May 22, 2007. Id. 26; id. Ex. A (Marriage License No. E485225 (registered June 25, 2007, Ontario, Canada)); id. Ex. B (Marriage Certificate No. 2007-05-013109 (issued March 10, 2008, Ontario, Canada)). 7. Edie and Theas marriage was valid in New York State and provided them

with the same status, responsibilities, and protections as other married people. Affidavit of Andrew J. Ehrlich 10. 8. Edie and Thea spent two years as a married couple before Thea

succumbed to complications from a heart condition on February 5, 2009, and died. Windsor Aff. 28; id. Ex. D (Death Certificate of Thea Clara Spyer). 9. After Theas passing, Edie was hospitalized with stress cardiomyopathy,

an ailment commonly known as broken heart syndrome, which required the insertion of an implantable cardioverter-defibrillator (ICD), and has resulted in serious, irreversible damage to her heart. Id. 29. 10. After Thea died, her Last Will and Testament, dated September 7, 2004,

was admitted to probate by the Surrogates Court of New York County (Index No. 2009-1162), and Edie was appointed as executor of Theas estate on April 24, 2009. Id. 30; id. Ex. E (Last Will and Testament of Thea Clara Spyer); id. Ex. F. (Letters Testamentary).

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11.

In accordance with Article Third of Theas Last Will and Testament, her

executor is directed to distribute her entire estate to the TCS Revocable Trust created by Thea. Id. 31; id. Ex. G (TCS Revocable Trust). 12. In accordance with Article III of the trust agreement creating the TCS

Revocable Trust, because Edie survived Thea, the trustees were directed to distribute the remaining trust property, after the payment of taxes and administration expenses, to the trustees of the ESW Revocable Trust created by Edie. Edie is a trustee and the sole beneficiary of the ESW Revocable Trust during her life, and she has the power, exercisable by her alone, to invade the trust property and to revoke the trust agreement in its entirety at any time. Id. 32; id. Ex. H. (ESW Revocable Trust). C. Edie and Theas Marriage Was Not Recognized Under Federal Law Solely by Operation of Section 3 of the Defense of Marriage Act 13. Edie and Thea were not considered married under federal law because,

pursuant to Section 3 of the Defense of Marriage Act (DOMA), the federal government refuses to recognize valid marriages of same-sex couples. 1 U.S.C. 7 (2006). 14. Solely because of the operation of Section 3 of DOMA, the Internal

Revenue Service (IRS) determined that the estate of Thea, a decedent whose surviving spouse, Edie, is a person of the same sex as the decedent, was not entitled to the marital deduction under 26 U.S.C. 2056(a). Windsor Aff. Ex. L (Ltr. from R.A. Mitchell, Internal Revenue Service, to Edith Schlain Windsor (May 26, 2010)). 15. Consequently, because Theas taxable estate and adjusted taxable gifts

exceeded the applicable exclusion amount, a federal estate tax was imposed on Theas estate that would not otherwise have been imposed if Edie and Theas marriage were recognized under federal law. Id.

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16.

As a direct result of the federal governments exclusion of same-sex

surviving spouses like Edie from the protections of the estate tax marital deduction, $363,053 (three hundred sixty-three thousand fifty-three dollars) in federal estate tax was imposed on Theas estate. Id. 17. As a direct result of Section 3 of DOMA, Edie has also been prevented

from being eligible for a Social Security lump-sum death benefit and Social Security widows insurance benefits that would otherwise be available to her as a surviving spouse. 42 U.S.C. 402 (2006). II. Constitutional Facts Supporting Heightened or Strict Scrutiny A. Gay men and lesbians have suffered a long history of purposeful discrimination 18. Gay men and lesbians have suffered a long history of discrimination at the

hands of both governmental and private actors. Expert Affidavit of George Chauncey, Ph.D., 5, 6, 1055, 6586, 90103. 19. In early colonial America, the strong influence of Puritanical clergy and

the adoption of anti-sodomy legislation verbatim from the book of Leviticus led to the execution of several men for the crime of sodomy. Id. 19. 20. In the early twentieth century, the medical community condemned

homosexuality as a mental defect or disease, with this ostensibly scientific view (now rejected) helping to legitimize much anti-gay bias. Id. 2627. 21. The early twentieth century also saw the promulgation and selective

enforcement of state and local ordinances against disorderly conduct, vagrancy, lewdness, and loitering directed at lesbians and gay men who attempted to gather together. Id. 29.

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22.

In addition to subjecting lesbians and gay men to police harassment, states

and localities embarked upon widespread censorship campaigns designed to suppress gay peoples freedom of speech and ability to discuss gay issues. Id. 3134. 23. During and after World War II, the military systematically attempted to

screen out lesbians and gay men from the armed forces, and discharge and deny benefits to those that served and were discovered later. Id. 3941. 24. By the middle of the twentieth century, all federal agencies were

prohibited from hiring lesbians and gay men, and the federal government engaged in far-reaching surveillance and investigation to identify and purge supposed homosexuals from the federal civil service. Id. 4250. 25. Lesbians and gay men were also demonized by the media between the late

1930s and late 1950s. Id. 5153. 26. The modern anti-gay rights movements commenced as a response to the

slightest advancements in the direction of equality for lesbians and gay men in the 1970s. Id. 6668. 27. Campaigners against gay rights have spread false stereotypes of lesbians

and gay men as child molesters, unfit parents, and threats to heterosexualsstereotypes that linger to this day. Id. 6874. 28. The anti-gay rights movement has endeavored to repeal and block even

basic nondiscrimination protections for lesbians and gay men, and has contributed to the promulgation of overtly discriminatory legislation at the state and federal level, including restrictions on adoption by same-sex couples and marriage rights. Id. 7586.

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29.

To this day, lesbians and gay men are subjected to continued public

opprobrium from leading political and religious figures and the ever-present threat of anti-gay violence. Id. 91102. 30. Despite social and legal progress in the past thirty years towards greater

acceptance of homosexuality, gay men and lesbians continue to live with the legacy of historical antigay measures and the attitudes that motivated those measures; this legacy is evident both in laws that remain on the books and in the many legal protections that have not been enacted. Id. 7, 8. 31. Today, the limited civil rights enjoyed by gay and lesbian Americans vary

substantially from region to region and are still subject to the vicissitudes of public opinion. Id. 9. 32. Like other minority groups, gay men and lesbians often must rely on

judicial decisions to secure equal rights. Id. B. Sexual orientation has no bearing on ones ability to contribute to or perform in society. 33. Sexual orientation refers to an enduring pattern of emotional, romantic, Sexual orientation is most often

and/or sexual attractions to men, women or both sexes.

discussed in terms of three categories: heterosexual (having attractions to members of the opposite sex), gay or lesbian (having attractions to members of ones own sex), and bisexual (having attractions to both men and women). Expert Affidavit of Letitia Anne Peplau, Ph.D. (Peplau Aff.), 14, 15. 34. Being gay or lesbian has no inherent association with a persons ability to

lead a happy, healthy, and productive life or to contribute to society. Id. 11, 2933.

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35. 11, 29. 36. 37.

Being gay or lesbian is a normal expression of human sexuality. Id.

Being gay or lesbian is not a mental illness. Id. Empirical evidence and scientifically rigorous studies have consistently

found that gay men and lesbians are as able as heterosexuals to form loving, committed relationships. Id. 22, 31. 38. Like their heterosexual counterparts, many lesbian, gay, and bisexual

individuals form loving, long-lasting relationships, including marriage, with a partner of the same sex. Id. 12. 39. Sexual orientation is centrally linked to the most important human

relationships that adults form with other adults in order to meet their basic human needs for love, attachment and intimacy, and is an essential part of an individuals personal identity. Id. 18. 40. Numerous studies of youths raised by same-sex parents conducted over

the past 25 years by respected researchers and published in peer-reviewed academic journals demonstrate that the children raised by same-sex parents are just as well-adjusted as those of heterosexual parents, including biological parents. Expert Affidavit of Michael Lamb, Ph.D., 12, 2837. 41. Parental sexual orientation has no effect on childrens and adolescents

adjustment. Expert Affidavit of Michael Lamb, Ph.D. (Lamb Aff.), 12, 2831. 42. The factors that best account for the adjustment of children and

adolescents are the quality of the youths relationships with their parents, the quality of the relationship between the parents or significant adults in the youths lives, and the availability of economic and socio-economic resources. Id. 13, 1820.

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43.

There is a scientific consensus that the same factors affect the adjustment

of children, whatever the sexual orientation of their parents. Id. 2837. 44. The parents sex or sexual orientation does not affect the capacity to be

good parents or their childrens healthy development. Id. 13, 1820. 45. There is consensus in the scientific community that parental sexual

orientation has no effect on childrens and adolescents adjustment. Id. 31. 46. Numerous organizations representing mental health and child welfare

professionals have issued statements confirming that same-sex parents are as effective as heterosexual parents in raising well-adjusted children and adolescents and should not face discrimination. Id. 47. There is no empirical support for the notion that the presence of both male

and female role models in the home promotes childrens adjustment or well being. Id. 13, 21 27. 48. The absence of a male or female parent in the home does not impair a

childs development because men and women both have the capacity to be good parents, it is not harmful to children when parents (male or female) do not assume traditional gender roles with respect to parenting styles, and society is replete with male and female role models. Id. 23 27. 49. Gay men and lesbians experience and respond to life experiences and

events as any member of society would; this is despite the pervasive social stigma and unique social stresses lesbians and gay men must endure. Peplau Aff. 2933; Lamb Aff. 12, 13, 20, 2840

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C.

Sexual orientation is a defining or immutable characteristic for constitutional purposes 50. There is a scientific consensus that accepts that sexual orientation is a

characteristic that is immutable. Peplau Aff. 1928; Letter of Atty Gen. Holder to Speaker Boehner of the U.S. House of Rep., at 3 (Feb. 23, 2011) (Docket Entry No. 10-2). 51. Sexual orientation is a characteristic of an individual, like their biological

sex or race. It also is about relationships because sexual orientation is not merely about sexual behavior but also about building enduring intimate relationships. These relationships are an essential part of an individuals personal identity. Peplau Aff. 14, 18. 52. The factors that cause an individual to become heterosexual, gay or

lesbian, or bisexual are not currently well understood. Most social and behavioral scientists view sexual orientation as resulting from the interplay of biological, psychological, and social factors. Id. 19. 53. Most adults are attracted to and form relationships with members of only

one sex. Id. 10, 20. 54. orientation. Id. 23. 55. Efforts to change a persons sexual orientation through religious or The significant majority of adults exhibit a consistent and enduring sexual

psychotherapy interventions have not been shown to be effective. Id. 10, 26, 27. 56. No major mental health professional organization has approved

interventions to change sexual orientation, and virtually all of them have adopted policy statements cautioning professionals and the public about these treatments. Id. 27.

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57.

The fact that a small minority of people may experience some change in

their sexual orientation over their lifetime does not suggest that such change is within their power to effect. Id. 23. 58. It is psychologically harmful to ask lesbians and gay men to deny a core

part of their identity by ignoring their attraction to same-sex partners and instead marry a different-sex partner. Id. 24. D. Gay men and lesbians are a relatively powerless political minority 59. 60. Gay men and lesbians are a minority in the United States. Id. 40. At any level above a local precinct or neighborhood, there is no

geographic place in the United States with a gay majority. Expert Affidavit of Gary M. Segura, Ph.D., 49. 61. Gay men and lesbians do not possess a meaningful degree of political

power and are politically vulnerable. Id. 985. 62. Political power means a persons or groups demonstrated ability to

extract favorable or prevent unfavorable policy outcomes from the political system. Id. 13. 63. Traditional markers of political powerlessness include systematic

disadvantages in the political process; the existence of significant prejudice, stigmatization, or de facto or de jure second-class status; or an inability, alone or in concert with reliable coalition partners, to secure basic rights or equal treatment from and within the political process. Id. 27. 64. Gay men and lesbians frequently lack the political power to secure basic

rights within the normal political processes or to defend themselves and their civil rights against a hostile majority. Id. 9, 26.

10

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65.

Gay men and lesbians are the subject of political exclusion and suffer

political disabilities greater than other groups that have received suspect class protection from the courts. Id. 9, 8185. 66. In the political arena, gay men and lesbians must rely almost exclusively

on allies who are regularly shown to be insufficiently strong or reliable to achieve their goals or protect their interests. Id. 9, 7577. 67. Positive policy outcomes that remediate or repeal express, de jure

discrimination and bias against the group do not demonstrate a groups affirmative political power but should rather be viewed as a sign of political powerlessness. Id. 25. 68. The political powerlessness of gay men and lesbians is evidenced by their

inability to bring an end to pervasive prejudice and discrimination, and to secure desired policy outcomes and prevent undesirable outcomes on fundamental matters that closely and directly impact their lives. Id. 28. 69. The demonstrated vulnerability of occasional and geographically confined

policy gains to reversal or repeal is indicative of a role played by affinity or sympathy, rather than the exercise of meaningful political power by gay men and lesbians. Id. 28. 70. Even when gay men and lesbians have successfully secured minimal

protections in state courts and legislatures, opponents have aggressively used state ballot initiatives and referenda to repeal favorable laws and even amend state constitutions to preclude favorable court decisions. Id. 2223, 3444. 71. These direct democracy processes have been used against gay men and

lesbians more than any other social group. Id. 43.

11

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72.

At the time the Supreme Court first began articulating the factors that call

for heightened judicial scrutiny, women and racial minorities already had far more protection from discrimination than gay men and lesbians have today. Id. 8185. 73. There is no federal legislation prohibiting discrimination on the basis of

sexual orientation in employment, education, access to public accommodations, or housing. Id. 29. 74. Until sexual orientation was added to the federal hate crimes laws in

2009 (over significant opposition), no federal legislation had ever been passed to protect people on the basis of the sexual orientation. Id. 31. 75. Congress only recently authorized the repeal of the militarys ban on gay

and lesbian service members, and it did so only in a lame-duck session and after two courts had declared the policy unconstitutional. Id. 32. 76. On the state level, there is no statutory protection against discrimination in

employment or public accommodations for gay men and lesbians in twenty-nine states. Id. 33. 77. FBI statistics demonstrate that in 2009, almost one-fifth of all hate crime

incidents for the previous year were committed because of sexual orientation, and that gay men, along with Jewish Americans, are most likely to be victimized by a bias crime. Id. 52, 54. 78. In 2008, seventy-three percent of all hate crimes committed against gay

men and lesbians included an act of violence; seventy-one percent of all hate motivated murders in the United States were of gay men and lesbians; and fifty-five percent of all hate-motivated rapes were against gay men and lesbians. Id. 53. 79. The fact that sexual orientation is not a visible trait has undermined gay

men and lesbians ability to mobilize and exercise meaningful political power. Id. 5664.

12

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80.

Gay men and lesbians face severe hostility from non-gay citizens in many

parts of the country and opinion data shows that they are held in considerably lower regard than many groups currently receiving the protection of heightened scrutiny from the courts. Id. 6671, 78. 81. Gay men and lesbians face outspoken denunciation by elected officials in

a manner that would be unthinkable if directed toward almost any other social group. Id. 72 74. V. History of Marriage and the Defense of Marriage Act 82. The institution of marriage in the United States is a particular, not a

universal, form of the institution. Expert Affidavit of Nancy F. Cott, Ph.D., 8. 83. Marriage in the United States has been defined and controlled historically

at the state level. Id. 2428. 84. Since the founding of the United States, there has been a patchwork quilt

of marriage rules across the country. Id. 2428. 85. Marriage has been shaped by legislators and judges in the various states to

adjust to changing needs from the founding of the nation until today. Id. 1323. 86. State marriage laws have varied in accordance with political and economic

environments, religious forces, changes in the ethnic composition of a states residents, and many other local conditions. Id. 2528. 87. The ability to procreate has never been an eligibility criterion to enter into

marriage. Id. 1923.

13

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88.

States variances regarding the validity of marriages of same-sex couples

resembles and is parallel to the history of states divergences with respect to many other dimensions of marriage validity. Id. 3264. 89. States have varied from one another in defining the basic elements of

marriage, including whether or not ceremonies are required for validation, age at marriage, what other race may marry a white person, how marriage may be dissolved, and other issues, and how spousal roles shall be defined and enforced. Id. 3273. 90. There remains substantial variation in state rules on marriage to this day

including whether common law marriages will be recognized, minimum age required for marriage, hygienic requirements (such as degree of relatedness that will be permitted between spouses), and marriage dissolution rulesyet the federal government has never stepped in to create uniform requirements for purposes of federal law. Id. 3244, 5864. 91. Heated controversy often surrounded changes to the features of marriage

on which state laws diverged in the past; the controversies today focusing on marriage between couples of the same sex, and state variance on the matter, resemble these past disagreements. Id. 36, 5057, 6061. 92. Since the Revolutionary War era, the federal government has used

marriage as a vehicle to convey benefits to adult citizens and their dependents. Id. 81. 93. The extent of federal laws and policies using marriage in this way has

grown to cover vast and important areas, including income tax, Social Security, and citizenship and naturalization privileges and limits. Id. 82. 94. DOMA represents a dramatic departure from the federal governments

longstanding tradition of deferring to states determinations of marital status, as prior to 1996 the

14

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federal government never stipulated a uniform definition of marriage for purposes of federal law, and instead relied upon states determinations. Id. 38, 44, 57, 64, 83, 88. 95. By denying federal recognition to legally married same-sex couples,

DOMA both reflects and perpetuates stigma against lesbians, gay men, and same-sex couples. Peplau Aff. 3941. 96. The stigma and discrimination perpetuated by DOMA harm not only

individuals in legal same-sex marriages, but gay men, lesbians, and bisexuals as a group. Id. 13. 97. According to the legislative history, DOMAs exclusion in 1996 of all

same-sex couples who might one day get married from all federal marital protections and obligations was intended to: (a) defend[] and nurtur[e] the institution of traditional,

heterosexual marriage, (b) promot[e] heterosexuality, (c) encourag[e] responsible procreation and child-rearing, (d) protect[] . . . democratic self-governance, (e) preserve scarce government resources by preventing marital benefits from hav[ing] to be made available to homosexual couples and surviving spouses of homosexual marriages, and (f) promote a moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality. H.R. Rep. No. 104-664, at 12, 13, 15, 17, 18 (1996). 98. The recognition of the marriages of same-sex couples would actually

increase annual net federal revenue. Cong. Budget Office, U.S. Cong., The Potential Budgetary Impact of Recognizing Same-Sex Marriages, at 1 (June 21, 2004), http://www.cbo.gov/ftpdocs/ 55xx/doc5559/06-21-SameSexMarriage.pdf.

15

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Dated: New York, New York June 24, 2011 PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP /s/ Andrew J. Ehrlich /s/ ____________________________________ Roberta A. Kaplan, Esq. Andrew J. Ehrlich, Esq. 1285 Avenue of the Americas New York, New York 10019-6064 (212) 373-3000 rkaplan@paulweiss.com aehrlich@paulweiss.com and James D. Esseks, Esq. Rose A. Saxe, Esq. AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street New York, New York 10004-2400 (212) 549-2500 jesseks@aclu.org rsaxe@aclu.org and Alexis Karteron, Esq. Melissa Goodman, Esq. Arthur Eisenberg, Esq. NEW YORK CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 19th Floor New York, New York 10004 (212) 607-3300 akarteron@nyclu.org mgoodman@nyclu.org aeisenberg@nyclu.org Attorneys for Plaintiff Edith Schlain Windsor

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UNITED STATES DISTRICT COURT FOR THE 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. ) ____________________________________)

Civil Action No. 10-CV-8435 (BSJ)(JCF)

INTERVENOR-DEFENDANTS LOCAL RULE 56.1 RESPONSE TO PLAINTIFFS STATEMENT OF MATERIAL FACTS Pursuant to Local Rule 56.1, Intervenor-Defendant the Bipartisan Legal Advisory Group of the United States House of Representatives (the House) submits this Response to Plaintiffs Statement Pursuant To Local Rule 56.1: 1. 2. 3. Undisputed. Undisputed. Whether the United States of America is a proper defendant in this action is not a

question of fact, but is for the Court to determine as a matter of law. This is illustrated by the fact that Plaintiff cites no admissible evidence in support of this proposition. 4. 5. Undisputed. The House does not dispute that Plaintiff had a long-standing relationship with

Thea Spyer. Aff. of Edith Schlain Windsor (June 24, 2011) (ECF No. 31) (Windsor Aff.) 5, 7-9. 1

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6.

The House does not dispute the length of Plaintiffs and Spyers engagement or

that Plaintiff and Spyer participated in a ceremony in Toronto, Canada on May 22, 2007. Windsor Aff. 26-27 & Exs. A & B. The legal validity of that ceremony is not a question of fact, but is for the Court to determine as a matter of law. 7. Disputed. The legal validity of Plaintiffs marriage, and the status,

responsibilities, and protections it entailed, are not questions of fact, but are for the Court to decide as a matter of law. This is illustrated by the fact that the only evidence cited by Plaintiff in support of her assertions in this regard is the affidavit of her attorney. 8. The House does not dispute that Plaintiff and Spyer continued their relationship

until Spyers death, or that her death occurred two years after their Canadian ceremony. Windsor Aff. 28 & Ex. D. Whether they were legally a married couple during that period is not a question of fact, but is for the Court to determine as a matter of law. 9. Any health problems suffered by Plaintiff are not relevant to the issues presented

in this case, and thus would not be admissible in evidence. The House disputes Plaintiffs apparent implication that her health problems somehow resulted from Spyers death. Plaintiff offers no support for this proposition whatsoever. See Windsor Aff. 29. 10. 11. Undisputed. The House does not dispute that Plaintiffs Exhibit G is a copy of a genuine trust

document. See Windsor Aff. 31. The legal significance of that document is not a question of fact, but is for the Court to determine as a matter of law. 12. The House does not dispute that Plaintiffs Exhibit H is a copy of a genuine trust

document. See Windsor Aff. 32. The legal significance of that document is not a question of fact, but is for the Court to determine as a matter of law.

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13.

While the House agrees that, for federal purposes, DOMA states that marriage

includes only opposite-sex relationships, the meaning of DOMA and whether it or any other statute precludes recognition of same-sex relationships as marriages for purposes of federal law is not a question of fact, but is for the Court to decide as a matter of law. This is illustrated by the fact that Plaintiff cites no admissible evidence in support of this proposition. 14. The House does not dispute that the IRS determined that Spyers estate was not

entitled to the marital deduction. See Windsor Aff., Ex. L. The House disputes that this determination was [s]olely due to DOMA. Plaintiffs evidence supports only that the IRS regarded DOMA as a sufficient reason for denying the deduction, not the only reason, and Plaintiff cites no additional evidence that would support a finding that there was no other reason for the IRSs action. See id. Whether any other federal statute actually would bar the deduction is not a question of fact, but is for the Court to decide as a matter of law. 15. Undisputed, except to the extent that the word [c]onsequently implies that the

tax levied on Spyers estate was [s]olely due to DOMA. In that respect the House incorporates by reference Paragraph 14, supra. 16. 17. Undisputed. The House does not dispute that Plaintiff is not eligible for a Social Security

lump-sum death benefit or widows insurance benefits, although it notes that she has cited no admissible evidence in support of this proposition. Whether this is a direct result of Section 3 of DOMA, or whether the same result would have occurred under federal law prior to DOMA, is not a question of fact but for the Court to decide as a matter of law. This is illustrated by the fact that Plaintiff also cites no admissible evidence in support of this proposition.

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18.

Disputed. In equal protection jurisprudence the question of whether a class of

persons has suffered a history of discrimination is not a question of fact but is for the Court to decide as a matter of law. As a factual matter the House does not dispute that at various times some homosexual persons have been treated differently because of their sexual orientation, but Plaintiffs evidence is not sufficient to establish a history of discrimination for purposes of equal protection. See generally Aff. of George Chauncey (June 24, 2011) (ECF No. 35) (Chauncey Aff.). 19. Undisputed. However, colonial sodomy prosecutions were aimed not at

homosexual persons or conduct per se but rather at non-procreative sexual conduct in general, including such conduct between persons of opposite sexes. Dep. of George Chauncey, Ph.D. (July 12, 2011) (Chauncey Dep.) at 34:9-34:24, attached as Ex. A to Dugan Decl. 20. Undisputed. However, Plaintiff submits no evidence that medical views of

homosexuality have themselves been based on bias, as opposed to past understandings of scientific knowledge. See Chauncey Aff. 26-27. 21. 22. Undisputed. Undisputed, on the understanding that the assertion refers to occurrences in the

early 20th Century. 23. 24. 25. 26. 27. Undisputed. Undisputed. Undisputed. Undisputed. Undisputed.

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28.

Disputed. Whether federal legislation is overtly discriminatory is a question of

law for the Court to decide not a question of fact. 29. Undisputed, on the understanding that the phrase ever-present threat of anti-gay

violence does not mean that all or most homosexual persons fear violence every minute of every day. 30. The House does not dispute that many persons still oppose homosexual conduct

and the homosexual lifestyle, and that gay and lesbian interest groups continue to regard some laws as against their interests. However, Plaintiff substantially understates the social and legal progress that gay men and lesbians have experienced. See, e.g., evidence cited in 61, infra. 31. The mere facts that homosexual persons rights are not unlimited, vary from place

to place, and are subject to changing public opinion, are not relevant to any issue in this case and thus not admissible in evidence. Few if any classes of persons enjoy civil rights that are not limited in some way, or that are absolutely identical in every place in the county. And, all political gains, no matter the class at issue, are subject to the vicissitudes of public opinion. As a result, these characteristics cannot be relevant to whether a given class of people is a suspect class for equal protection purposes. 32. Undisputed. However, gay-rights groups have made great advances through the

political process. See evidence cited in 61, infra. 33. Disputed. Enduring is not an accurate description of everyones experience of

sexual orientation. As evidence shows, a not insignificant number of people who described themselves at one time as homosexual, later describe themselves as heterosexual. See, e.g., Lisa M. Diamond, New Paradigms for Research on Heterosexual and Sexual Minority Development, 32 J. of Clinical Child and Adolescent Psychol. 492 (2003); Lisa M. Diamond & Ritch C. Savin-

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Williams, Explaining Diversity in the Development of Same-Sex Sexuality Among Young Women, 56 J. of Soc. Issues 297, 301 (2000) (50% [of studys] respondents had changed their identity label more than once since first relinquishing their heterosexual identity.); Nigel Dickson, et al., Same Sex Attracting in a Birth Cohort: Prevalence and Persistence in Early Adulthood, 56 Soc. Sci. & Med. 1607, 1612-13 (2003) (at age 21 [t]en percent of men and nearly a quarter of the women [in the study group] reported same-sex attraction at any time, but this nearly halved for current attraction at age 26). 34. Disputed. In the equal protection context, the ability of a class of persons to

contribute to society is not a question of fact, but is for the Court to decide as a matter of law. 35. The House does not dispute that many thousands of persons in modern society

identify themselves as gay and lesbian, and that many people regard this as normal. What is a normal expression of human sexuality, however, is not a question of fact but a matter of unreviewable opinion. 36. 37. 38. Undisputed. Undisputed. Undisputed, except that whether any given relationship or type of relationship is

or can be a marriage is a question of law rather than fact. 39. Undisputed. However, many persons experience fluidity or change in their sexual

orientation in a manner that suggests that maintaining any particular sexual orientation may not be essential to their identities. See evidence cited in 33, supra. 40. Disputed. Numerous studies, including those relied upon by Plaintiffs expert,

show that homosexual parenting studies are flawed because of sampling errors, a major focus on lesbian mothers rather than homosexual fathers, and other design flaws. Dep. of Michael Lamb,

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Ph.D. (June 24, 2011) (Lamb Dep.), Ex. 6 at 327, attached as Ex. E to Dugan Decl. (Studies of children raised by same-sex parents have almost exclusively focused on families headed by lesbian mothers rather than gay fathers.) (emphasis added); Id., Ex. 8 at 526 (We still have relatively few studies of adolescent offspring of lesbian or gay parents, however, and some have advised caution when generalizing the results of research conducted with young children to adolescents) (emphasis added); Id., Ex. 9 at 254 (Future research on gay and lesbian couples needs to address several key issues. One is sampling: Because most studies have used convenience samples of mostly white and well-educated partners, the extent to which findings generalized to the larger population of gay and lesbian couples is unknown. . . . Most studies on gay and lesbian couples have used self-report surveys. Future work could address some of the biases associated with self-report data.) (emphasis added); see also studies cited in Lofton v. Sec. of Dept. of Children & Fam. Servs., 358 F.3d 804, 825 nn.24-25 (11th Cir. 2004) (demonstrating serious methodological problems in gay parenting studies); Ann Hulbert, The Gay Science: What Do We Know About the Effects of Same-Sex Parenting?, Slate, March 12, 2004, http://www.slate.com/id/2097048/ (stating that both camps in the gay marriage debate have converged lately on a very basic point: The existing science is methodologically flawed and ideologically skewed). 41. Disputed, as one would expect with regard to such a contentious issue. See

evidence cited in 40, supra. Furthermore, Plaintiff does not define the term adjustment. 42. The House does not dispute that these factors affect the adjustment of children

and adolescents. The House disputes the assertion to the extent it is rooted in the assertions of the prior paragraphs. See evidence cited in 40, supra. 43. Disputed. See evidence cited in 40, supra.

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44.

Disputed. Homosexuals of course can be good parents, but the House disputes

whether parents sexual orientation has no effect on children. See evidence cited in 40, supra. 45. 46. Disputed. See evidence cited in 40, supra. The House does not dispute that certain organizations have stated that the

evidence suggests that same-sex parents are as effective as heterosexual parents in raising welladjusted children and adolescents. See also evidence cited in 40, supra. 47. Disputed. See, e.g., sources cited in Irizarry v. Bd. of Educ. of Chi., 251 F.3d 604,

607 (7th Cir. 2001) ([S]o far as heterosexuals are concerned, the evidence that marriage provides a stable and nourishing framework for child-rearing . . . refutes any claim that policies designed to promote marriage are irrational.) (namely, Linda J. Waite & Maggie Gallagher, The Case for Marriage: Why Married People Are Happier, Healthier, and Better Off Financially (2000); David Popenoe, Life without Father: Compelling New Evidence That Fatherhood and Marriage Are Indispensable for the Good of Children and Society (1996); George W. Dent, Jr., The Defense of Traditional Marriage, 15 J.L. & Pol. 581 (1999)); see also source cited in Bowen v. Gilliard, 483 U.S. 587, 614 (1987) (Brennan, J., dissenting) (noting that considerable scholarly research . . . indicates that [t]he optimal situation for the child is to have both an involved mother and an involved father) (quoting H. Biller, Paternal Deprivation 10 (1974)); Lofton, 358 F.3d at 820 (Although social theorists from Plato to Simone de Beauvoir have proposed alternative child-rearing arrangements, none has proven as enduring as the marital family structure, nor has the accumulated wisdom of several millennia of human experience discovered a superior model.). 48. Disputed. See evidence cited in 40 & 47, supra.

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49.

Disputed. The classes of gay men and lesbians are defined by a different

experience of sexuality. Aff. of Letitia Anne Peplau, Ph.D. (June 24, 2011) (ECF No. 32) (Peplau Aff.) 14, 15, 18. The issue of how any member of society would experience and respond to life experiences is not a question of fact but of unreviewable opinion. 50. In the equal protection context, whether a characteristic is immutable is not a

question of fact but is for the Court to decide as a matter of law. In a non-legal sense, while the House does not dispute that sexual orientation is stable in many people, it disputes that immutable is an accurate descriptor for sexual orientation as a whole. Dep. of Letitia Anne Peplau, Ph.D. (June 17, 2011) (Peplau Dep.) at 25:20-25:23, attached as Ex. B to Dugan Decl. ([L]ooking at a newborn, I would not be able to tell you what that childs sexual orientation is going to be.); id. at 36:24-37:24; id., Ex. 4 at 186 (over 12% of self-identified gay men and nearly one out of three lesbians reported that they experienced some or much choice about their sexual orientation); Lisa Diamond, New Paradigms for Research on Heterosexual and Sexual Minority Development, 32 J. of Clinical Child and Adolescent Psychol. 492 (2003); Lisa M. Diamond & Ritch C. Savin-Williams, Explaining Diversity in the Development of Same-Sex Sexuality Among Young Women, 56 J. of Soc. Issues 301 (2000) (50% [of studys] respondents had changed their identity label more than once since first relinquishing their heterosexual identity.); Nigel Dickson, et al., Same Sex Attracting in a Birth Cohort: Prevalence and Persistence in Early Adulthood, 56 Soc. Sci. & Med. 1607, 1612-13 (2003) (at age 21 [t]en percent of men and nearly a quarter of the women [in the study group] reported same-sex attraction at any time, but this nearly halved for current attraction at age 26).

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51.

The House does not dispute that sexual orientation is an individual characteristic.

The House disputes whether it is as immutable or essential as sex or race. See evidence cited in 33 & 50, supra. 52. 53. 54. Undisputed. Undisputed. Undisputed. However, evidence indicates that a great many people who

experience homosexual attraction at one period in their adult lives do not in another. See evidence cited in 33, supra. 55. The House does not dispute the absence of evidence for the effectiveness of such

interventions. However, evidence does indicate that, even absent such interventions, changes in sexual orientation occur with some frequency. See evidence cited in 33 & 54, supra. 56. Undisputed, with the understanding that Plaintiff is not here asserting that the

policies referenced in the Peplau Affidavit are correct on the current evidence or that future evidence might not emerge that would cause these policies to be changed. 57. Disputed. The fact that some people experience change in their sexual orientation

is not fully understood. See, e.g., Peplau Dep., Ex. 3 at 2, attached as Ex. B to Dugan Decl. (There is no consensus amongst scientists about the exact reasons that an individual develops a heterosexual, bisexual, gay, or lesbian orientation. . . . [N]o findings have emerged that permit scientists to conclude that sexual orientation is determined by any particular factor or factors.); Diamond & Savin-Williams, supra 50, at 301. 58. The House does not dispute that it likely would be psychologically harmful to

force lesbians or gay men to take these steps or attempt to persuade them to do so against their will. The House disputes that every noncoercive, non-aggressive request will inherently be

10

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psychologically harmful to its recipient. To the extent Plaintiffs evidence suggests otherwise, it is wholly implausible and not entitled to be credited by the finder of fact. See, e.g., Peplau Aff. 24. 59. 60. 61. Undisputed. Undisputed. Disputed. In the context of equal protection jurisprudence, whether a given class

of persons has political power or is politically vulnerable is not a question of fact, but is for the Court to decide as a matter of law. Moreover, in this very case Plaintiff has demonstrated the significant political power that gays and lesbians hold. See, e.g., Letter of Atty Gen. Holder to Speaker Boehner of the U.S. House of Rep. (Feb. 23, 2011); see also Susan Page, Gay Candidates Gain Acceptance, USA Today, July 19, 2011, http://www.usatoday.com/news/politics/2011-07-19-gay-candidates-politics_n.htm; MJ Lee; Obama Backs Bill To End DOMA, Politico, July 19, 2011, http://www.politico.com/politico44/perm/0711/all_due_respect_52655160-80d9-4749-a26a3525888f615a.html; Michael Barbaro, Behind N.Y. Gay Marriage, an Unlikely Mix of Forces, N.Y. Times, June 25, 2011, http://www.nytimes.com/2011/06/26/nyregion/the-road-to-gaymarriage-in-new-york.html?pagewanted=all; Wyatt Buchanan, New State Law Requires LGBT History in Textbooks, S.F. Chron., July 15, 2011, http://www.sfgate.com/cgibin/article.cgi?f=/c/a/2011/07/14/BAL61KAHVQ.DTL; Abby Goodnough, Rhode Island Lawmakers Approve Civil Unions, N.Y. Times, June 29, 2011, http://www.nytimes.com/2011/ 06/30/us/30unions.html; Elisabeth Bumiller, Obama Ends Dont Ask, Dont Tell Policy, N.Y. Times, July 22, 2011, http://www.nytimes.com/2011/07/23/us/23military.html.

11

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62.

In the equal protection context, the definition of political power is not a

question of fact, but is to be decided by the Court as a matter of law. See, e.g., Lyng v. Castillo, 477 U.S. 635, 638 (1986) (deciding question of political powerlessness without reference to formally adduced evidence). 63. In the equal protection context, the definition of political power and the factors

that evidence it are not questions of fact, but are to be decided by the Court as a matter of law. 64. Disputed. In the equal protection context, the quantum of political power

possessed by a given class of people is not a question of fact, but is to be decided by the Court as a matter of law. Moreover, gay and lesbian persons wield a very significant degree of political power. See evidence cited in 61, supra. 65. Disputed. In the equal protection context, the quantum of political powerlessness

suffered by a given class of people is not a question of fact, but is to be decided by the Court as a matter of law. See Lyng, 477 U.S. at 638. Additionally, the Court may take judicial notice of the fact that gay and lesbian persons form a vastly smaller portion of the population than other groups that have received suspect class protection. Nevertheless, they have come to wield a degree of political power that is proportionately greater than those groups. See evidence cited in 61, supra. 66. Disputed. Gay men and lesbians are very frequently able to achieve their political

goals. See evidence cited in 61, supra. 67. Disputed. In the equal protection context, the definitions of political

powerlessness and political power are not questions of fact, but are to be decided by the Court as a matter of law.

12

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68.

Disputed. In the equal protection context, the definition of political

powerlessness is not a question of fact, but is to be decided by the Court as a matter of law. Moreover, gay men and lesbians are very frequently able to achieve their political goals. See evidence cited in 61, supra. 69. Disputed. In the equal protection context, the definition and indicators of

political power are not questions of fact, but are to be decided by the Court as a matter of law. 70. Undisputed, on the understanding that Plaintiff is not here asserting that gay men

or lesbians have never secured more than minimal protections, or that every minimal protection they have won has been aggressively repealed or even opposed. Moreover, the indicia of the political power of gays and lesbians are numerous and very strong. See evidence cited in 61, supra. 71. Disputed. Plaintiff has no reliable metric for determining how frequently direct

democracy processes have been used against any social group. See Aff. of Gary Segura (June 24, 2011) (ECF No. 36) 43. 72. 73. Disputed. This is a question of law, not a question of fact. The import of federal law is not a question of fact but is to be answered by the

Court as a matter of law. However, the House does not dispute that there is no federal legislation prohibiting discrimination on the basis of sexual orientation. 74. The import of federal law is not a question of fact but is to be answered by the

Court as a matter of law. However, the House does not dispute that no federal legislation had been passed prior to 2009 to protect people on the basis of sexual orientation. 75. Undisputed.

13

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76.

The import of state law is not a question of fact but is to be answered by the Court

as a matter of law. 77. 78. 79. Undisputed. Undisputed. Undisputed. However, gay men and lesbians wield great political power,

especially considering the relatively small share of the population they make up. See evidence cited in 61, supra. 80. Disputed, to the extent that whether a given set of conditions amounts to severe

hostility is not a question of fact but of unreviewable opinion. It is also a vague and opaque assertion. 81. Disputed. The House does not dispute that many elected officials do not support

expanded benefits for homosexual persons, but whether denunciation is unthinkable is not a question of fact but of unreviewable opinion. In any event, politicians not infrequently make offensive remarks about various social groups. See, e.g., Tim Reid, Barack Obamas Guns and Religion Blunder Gives Hillary Clinton a Chance, The Times of London, April 14, 2008, http://www.timesonline.co.uk/tol/news/world/us_and_americas/us_elections/article3740080.ece (describing then-Senator Obamas comments concerning blue-collar voters in Pennsylvania and the Midwest); Xuan Thai & Ted Barrett, Bidens Description of Obama Draws Scrutiny, CNN, July 31, 2007, http://articles.cnn.com/2007-01-31/politics/biden.obama_1_braun-and-alsharpton-african-american-presidential-candidates-delaware-democrat?_s=PM:POLITICS (describing then-Senator Bidens comment concerning then-Senator Obama and how he differed from former black presidential candidates).

14

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82.

The meaning of this assertion is so vague that is does not qualify as a proper

assertion of fact. 83. Disputed. The meaning of federal and state law governing marriage through the

years is not a question of fact, but is a matter of law for the Court to decide. In any event, marriage has largely been a creature of state law, but the federal government has been involved with and injected itself into marriage law when states have deviated from the traditional definition. See, e.g., Morrill Anti-Bigamy Act, ch. 126, 1, 12 Stat. 501, 501 (1862) (codified as amended at U.S. Rev. Stat. 5352) (repealed prior to codification in the U.S.C.) (punishing and preventing the practice of polygamy in the territories of the United States)1; see also Reynolds v. United States, 98 U.S. 145, 165-67 (1878) (holding that law banning polygamy did not violate the Constitutions guarantee of free exercise of religion); Aff. of Nancy F. Cott (June 24, 2011) (ECF No. 33) (Cott Aff.) 77 (discussing the Freedmens Bureaus work in supporting marriage); Dep. of Nancy F. Cott (July 6, 2011) (Cott Dep.) at 17:20-18:1, attached as Ex. D to Dugan Decl. (stating that in dealing with Indians . . . in federal territories and in certain states where the federal government was dealing . . . with native Americans through the Bureau of Indian Affairs, the form of marriage observed by these populations was of concern to that federal agency). 84. The House does not dispute that there have always been some variations in State

marriage rules. Whether these variations are great enough to be described as a patchwork quilt is not a question of fact. Additionally, the Court may take judicial notice that for 228 years after the founding, no state law permitted same-sex marriage. 85.
1

Undisputed.

The House cited statutes and caselaw as evidence of the historical fact of the enactment of provisions of federal law. 15

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86. 87.

Undisputed. The House does not dispute that no state has ever placed upon an individual

would-be spouse the burden of affirmatively proving that he or she individually is able to procreate. The Court, however, may take judicial notice of the fact that human procreation normally involves one man and one woman only, and that for more than two centuries after the Founding these parties and only these were permitted to enter marriage in every State. In addition, impotence has often been regarded as a ground for the dissolution of marriages. Cott Dep. at 20:13-21:18. 88. Whether one variance between the legal rules adopted by different States

resembles or is parallel to another variance is not a question of fact but a matter of unreviewable legal opinion. In any event, the Court may take judicial notice of the fact that while other divergences noted in the Cott Affidavit have been repeated throughout history in numerous other places in the world, same-sex marriage is virtually unprecedented in all of human history. See generally Cott Aff. 89. 90. Undisputed. Undisputed. However, the federal government has certainly concerned itself with

the definition of marriage in other contexts. See evidence cited in 83, supra. 91. Undisputed, so long as it is recognized that the Plaintiffs assertion does not

answer the specific legal question in this case. 92. 93. 94. Undisputed. Undisputed. The House does not dispute that despite other federal efforts to ensure that the

traditional definition of marriage would govern, see supra 83, prior to 1996 the federal

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government had never created a uniform definition of marriage for purposes of federal law. Whether DOMA amounted to a dramatic departure from this history is not a question of fact but of unreviewable opinion. 95. The House does not deny that DOMA prevents same-sex couples from being

recognized as married for purposes of federal law. Whether this reflects and perpetuates stigma is not a question of fact. Instead, it is either a question of law in the equal-protection context for decision by the Court, or else is a matter of unreviewable opinion. 96. Whether a given statute causes a stigma, let alone whether any such stigma

causes harm to anyone, is not a question of fact but of unreviewable opinion, or else of law for the Court to decide. 97. 98. Undisputed. Disputed. The Congressional Budget Office Report is an estimate as stated in the

report itself and this estimate assumes that same-sex marriages are legalized in all 50 states and recognized by the federal government. Cong. Budget Office, The Potential Budgetary Impact of Recognizing Same-Sex Marriages, at 1 (June 21, 2004), http://cbo.gov/ftpdocs/55xx/doc5559/06-21-SameSexMarriage.pdf.

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Respectfully submitted, /s/ Paul D. Clement Paul D. Clement H. Christopher Bartolomucci Conor B. Dugan Nicholas J. Nelson BANCROFT PLLC 1919 M Street, Northwest, Suite 470 Washington, District of Columbia 20036 Telephone: (202) 234-0090 Facsimile: (202) 234-2806 Counsel for the Bipartisan Legal Advisory Group of the U.S. House of Representatives OF COUNSEL: Kerry W. Kircher, General Counsel Christine Davenport, Senior Assistant Counsel Katherine E. McCarron, Assistant Counsel William Pittard, Assistant Counsel Kirsten W. Konar, Assistant Counsel OFFICE OF GENERAL COUNSEL U.S. House of Representatives 219 Cannon House Office Building Washington, District of Columbia 20515 Telephone: (202) 225-9700 Facsimile: (202) 226-1360 August 1, 2011

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CERTIFICATE OF SERVICE I certify that on August 1, 2011, I served one copy of Intervenor-Defendants Local Rule 56.1 Response to Plaintiffs Statement of Material Facts by CM/ECF and by electronic mail (.pdf format) on the following: Roberta A. Kaplan, Esquire, & Andrew J. Ehrlich, Esquire PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP 1285 Avenue of the Americas New York City, New York 10019-6064 rkaplan@paulweiss.com aehrlich@paulweiss.com Alexis Karteron, Esquire, & Arthur Eisenberg, Esquire NEW YORK CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 19th Floor New York City, New York 10004 akarteron@nyclu.org arteisenberg@nyclu.org James D. Esseks, Esquire, Melissa Goodman, Esquire, & Rose A. Saxe, Esquire AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street New York City, New York 10004 jesseks@aclu.org mgoodman@nyclu.org rsaxe@aclu.org Jean Lin, Esquire UNITED STATES DEPARTMENT OF JUSTICE, CIVIL DIVISION 20 Massachusetts Avenue, Northwest, Seventh Floor Washington, District of Columbia 20530 jean.lin@usdoj.gov Simon Heller, Esquire STATE OF NEW YORK OFFICE OF THE ATTORNEY GENERAL 120 Broadway New York, NY 10271 simon.heller@ag.ny.gov

/s/ Kerry W. Kircher Kerry W. Kircher

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Case3:10-cv-00257-JSW Document176-9

Filed11/01/11 Page1 of 11

Case3:10-cv-00257-JSW Document176-9 George A. Chauncey, Ph. D.

Filed11/01/11 Page2 of 11 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

Case3:10-cv-00257-JSW Document176-9 George A. Chauncey, Ph. D.

Filed11/01/11 Page3 of 11 July 12, 2011 Page 6

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 the record? MS. KAPLAN: For plaintiff and Whereupon, GEORGE A. CHAUNCEY, having been first duly sworn/affirmed, was examined and testified as follows: EXAMINATION BY MR. DUGAN: Q. Good morning, Dr. Chauncey. I know

you have done depositions before but I will just go through a few ground rules. will introduce myself. Bancroft PLLC. Could the attorneys put their names on First of all, I

I am Conor Dugan from

representing the witness is Roberta Kaplan from the Paul Weiss firm. I am also here with my

colleague, Neil Kelly, and a summer associate. MS. HENRY: Vicki Henry from Gay and

Lesbian Advocates and Defenders, for the Pedersen plaintiffs. MS. GOODMAN: Melissa Goodman with the

NYCLU, New York Civil Liberties Union, also here with my colleague Robert Hodgson. MR. ESSEKS: James Esseks, for

Case3:10-cv-00257-JSW Document176-9 George A. Chauncey, Ph. D.

Filed11/01/11 Page4 of 11 July 12, 2011 Page 28

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. start over. campaigns. Q. Exhibit 2.

G. Chauncey

Turn to paragraph 9, page 4 of You write, "Today the limited civil

rights enjoyed by gay and lesbian Americans varies substantially from region to region and are still subject to the vicissitudes of public opinion. Like other minority groups, gay men and

lesbians often must rely on judicial decisions to secure equal rights." How would you differentiate -- let me

How is it different for gays and lesbians to be subject to the vicissitudes of public opinion from any other group that deals with legislative gains or losses? MS. KAPLAN: I am sorry. Objection to form. Can I ask you to

reformulate that question? Q. Yes. That wasn't very eloquent.

You say that gays and lesbians are subject to the vicissitudes of public opinion. How is that different from any other group that obtains benefits legislatively? MS. KAPLAN: Talking about today?

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G. Chauncey MR. DUGAN: MS. KAPLAN: can answer. A. Well, again, your question is still a But I will Today. Objection to form but you

little vague to me, I have to admit. attempt an answer.

I will go in one direction.

I think that there is a difference between a group seeking a tax break which might be looked upon favorably at one point and then get attention and be portrayed unfavorably at another point and a group of people who are being denied fundamental civil rights. I think that in the case of gay and lesbian Americans, we have seen in the last decade really just an extraordinary degree to which their basic rights have been subject to the vicissitudes of public opinion, with -- since the seventies, a large number of cases in which their civil rights have been put to the vote in popular referenda and, something like in three quarters of the cases, have been taken away, or in just the last decade you have seen 29 states enact constitutional amendments which write in gay and lesbian inequality into the fundamental law of

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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 the states.

G. Chauncey

It is hard to think of many other groups that have been subject to the vicissitudes of public opinion in quite that way. Q. So when you are talking about civil

rights that are subject to the whims of public opinion you have in mind things like marriage, housing -A. Freedom from discrimination. Now, we

can look in a longer duration and see for a long time black civil rights were subject to the vicissitudes of public opinion and were, even after emancipation, were severely curtailed by legislation across the south and Supreme Court rulings, until a point when the courts said that actually segregation of the schools is unconstitutional. When the court, the Supreme Court said denying the freedom to marry to an interracial couple is unconstitutional, the court said that at a time when the vast majority of white Americans -- and I think it is something like 90 percent of white southerners did not believe that interracial couples should have the right to

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G. Chauncey

So if they had been subject to the vicissitudes of public opinion, they would not have been allowed to. So in this case they had

to rely on the court's interpretation of the promises of equality in the constitution. Q. If we can turn to paragraph 10, same You write in the

page, page 4 of Exhibit 2?

first sentence, "While there is ample evidence that same-sex love and intimacy have persisted across the ages, most historians now agree that the concept of the homosexual and the heterosexual as distinct categories of people emerged only in the late 19th century." Are there historians that disagree with that conclusion? A. Yes. Historians always disagree

amongst themselves. Q. A. Fair enough. That's what we do. But I would say

that amongst historians who study this issue, there is a pretty strong consensus that the concept of the homosexual and the heterosexual as distinct categories of people emerged only in the

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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 recognized? A.

G. Chauncey about discrimination against homosexuals. In the

final sentence you write, "This discrimination reached remarkable and still largely unrecognized proportions." What do you mean that it hasn't been

I mean that I am really struck by

people's ignorance about the history of anti-gay discrimination. I teach a fairly large lecture

course at Yale with a lot of very bright, well-educated students who have never heard of this. And when I talk with colleagues outside of

this field or when I talk with just everyday acquaintances, I am repeatedly struck by the fact that they don't know this history since it's not a part of the curriculum, certainly in the vast majority of high schools or lower schools in the country. And the sort of course I teach at Yale

is still very rare. Q. In the second to last sentence in the

same paragraph you write, "Between the 1920's and the 1950's the government, drawing on long traditions of hostility to same-sex conduct and responding both to new conceptions of the

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G. Chauncey homosexual as an individual and to the growing visibility of those individuals, began to classify and discriminate against certain of its citizens on the basis of their status or identity as homosexuals." When you use the term or the phrase "hostility to same-sex conduct," is that the same as hostility to gays or homosexuals? MS. KAPLAN: Objection to form.

Well, as I have tried to say, the

category of homosexual or heterosexual, gay people or straight people didn't exist in the same way before, so there was certainly a long history of hostility to the behavior that would come to be identified with and seen as characteristic of the people that would come to be known as homosexuals or gay people. So, that's the longer tradition. But

as I have said here, it was in the 20th century that the government began to classify and discriminate against certain of its citizens on the basis of their status as homosexuals. Again,

that drew on a longer history of vilification but it took a distinctive form in the 20th century.

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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 ________________________ DEBRA STEVENS, RPR-CRR IN WITNESS WHEREOF, I have hereunto set my hand this _______ 2011. day of _________________, I, DEBRA STEVENS, a Registered Professional Shorthand Reporter and notary public, within and for the State of New York, do hereby certify: That GEORGE A. CHAUNCEY, the witness whose examination is hereinbefore set forth, was first duly sworn by me, and that transcript of said testimony is a true record of the testimony given by said witness. I further certify that I am not related to any of the parties to this action by blood or marriage, and that I am in no way interested in the outcome of this matter. C E R T I F I C A T I O N

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DEPOSITION ERRATA SHEET

Our Assignment No.: Case Caption:

321173

Windsor Vs. United States

DECLARATION UNDER PENALTY OP PEfRJURY

I declare under penalty of perjury that I have read the entire transcript of my Deposition taken in the captioned matter or the same has been read to me, and the same is true and accurate, save and except for changes and/or corrections, if any, as indicated by me on the DEPOSITION ERRATA SHEET hereof, with the understanding that I offer these changes as if still under oath.

GEORGE A. CHAUNCEY Subscribed and sworn to on the /{J day of

J&tyjbtL.

20 JJ__ bef r e o

me.
Subscribed and sworn to before me

22 23 24 25

Notary Public, in and for the State of

thi

C-^ Avy-er^oJnT""

J O S E P H I N E D E BRIDQITA Notary Public, State of Connecticut My Commission Expires Sept 30,2015

ESQUIRE

Telephone: 212.349.9692 Facsimile; 212.557.2152

HUM***.

One Penn Plaza Suite 4715 New York, NY 10119

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PAUL D. CLEMENT (DC Bar 433215) pclement@bancroftpllc.com H. CHRISTOPHER BARTOLOMUCCI (DC Bar 453423) cbartolomucci@bancroftpllc.com CONOR B. DUGAN (MI Bar P66901) cdugan@bancroftpllc.com NICHOLAS J. NELSON (MD Bar) nnelson@bancroftpllc.com BANCROFT PLLC 1919 M Street, NW, Suite 470 Washington, DC 20036 202-234-0090 (phone); 202-234-2806 (fax) OF COUNSEL: KERRY W. KIRCHER, GENERAL COUNSEL (DC Bar 386816) Kerry.Kircher@mail.house.gov CHRISTINE DAVENPORT, SR. ASST COUNSEL (NJ Bar) Christine.Davenport@mail.house.gov KATHERINE E. MCCARRON, ASST COUNSEL (DC Bar 486335) Katherine.McCarron@mail.house.gov WILLIAM PITTARD, ASST COUNSEL (DC Bar 482949) William.Pittard@mail.house.gov KIRSTEN W. KONAR, ASST COUNSEL (DC Bar 979176) Kirsten.Konar@mail.house.gov OFFICE OF GENERAL COUNSEL U.S. House of Representatives 219 Cannon House Office Building Washington, DC 20515 202-225-9700 (phone); 202-226-1360 (fax) Counsel for Intervenor-Defendant The Bipartisan Legal Advisory Group of the U.S. House of Representatives

Intervenor-Defendant the Bipartisan Legal Advisory Group of the U.S. House of Representatives Responses to Plaintiff Karen Golinskis Interrogatories, Set One 3:10-cv-0257-JSW

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

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA ) ) ) Plaintiff, ) ) v. ) ) UNITED STATES OFFICE OF PERSONNEL ) MANAGEMENT, et al., ) ) Defendants. ) __________________________________________)

Case No. 3:10-cv-0257-JSW INTERVENOR-DEFENDANT THE BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES RESPONSES TO PLAINTIFF KAREN GOLINSKIS INTERROGATORIES, SET ONE

Pursuant to Rules 26 and 33 of the Federal Rules of Civil Procedure, and Local Civil Rule 49, Intervenor-Defendant the Bipartisan Legal Advisory Group of the U.S. House of Representatives (Defendant) objects and responds to Set One of Plaintiffs Interrogatories (the Interrogatories) as follows:1 GENERAL OBJECTIONS Defendant objects to the Interrogatories to the extent that they purport to impose

any requirement or discovery obligation on Defendant beyond those set forth in the Federal Rules of Civil Procedure and/or the Local Rules. 2. Defendant objects to the Interrogatories to the extent they seek information or

documents protected by the attorney-client privilege, the attorney work-product doctrine, the Speech or Debate Clause of the United States Constitution, art. I 6, cl. 1, or any other
1

The Bipartisan Legal Advisory Group currently is comprised of the Honorable John A. Boehner, Speaker of the House, the Honorable Eric Cantor, Majority Leader, the Honorable Kevin McCarthy, Majority Whip, the Honorable Nancy Pelosi, Democratic Leader, and the Honorable Steny H. Hoyer, Democratic Whip. The Democratic Leader and the Democratic Whip decline to support the filing of these Responses.

Intervenor-Defendant the Bipartisan Legal Advisory Group of the U.S. House of Representatives Responses to Plaintiff Karen Golinskis Interrogatories, Set One 3:10-cv-0257-JSW

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applicable privilege, protection, or restriction on discovery.

This objection includes the

Interrogatories requests for the identification of facts in support of various hypothetical contentions, to the extent the requested facts include legal rules or theories. The responses that follow encompass responsive, non-privileged, non-exempt information and documents. Any disclosure of privileged or confidential information or documents is not intended to waive any applicable privileges or protections. 3. Defendant objects to the Interrogatories to the extent that they seek information or

documents not relevant to the claims or defenses in this litigation and/or not reasonably calculated to lead to the discovery of admissible evidence, and to the extent Plaintiff is requesting information that may include hearsay and other forms of information that are neither reliable nor admissible in evidence. 4. Defendant objects to the Interrogatories to the extent they seek information or

documents already known to Plaintiff, in the possession, custody, or control of Plaintiff, previously filed with the Court in this litigation, or otherwise available through or from a more convenient, less burdensome, or less expensive source. 5. Defendant objects to the Interrogatories to the extent they are unreasonably

cumulative or duplicative; cause annoyance, embarrassment, oppression, undue burden or expense; or are onerous, uncertain, or vague. Defendant further objects to these Interrogatories to the extent they use terms that are not defined or understood, or are vaguely or ambiguously defined, and therefore fail to identify with reasonable particularity the information sought. Defendant will not speculate as to the meaning to ascribe to such terms.

Intervenor-Defendant the Bipartisan Legal Advisory Group of the U.S. House of Representatives Responses to Plaintiff Karen Golinskis Interrogatories, Set One 3:10-cv-0257-JSW

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7.

Defendant has conducted a reasonable investigation concerning the information

sought by the Interrogatories and objects to the extent they seek to require Defendant to maintain or obtain information beyond that available through reasonable investigation and/or in the time permitted for these responses. In addition, Defendant continues to search for additional

information. Defendant reserves the right to amend, supplement, or modify these responses, if necessary, to reflect additional responsive information or documents as they become known or available. 8. Each of Defendants responses to the Interrogatories is subject to the General

Objections set forth herein. The assertion of the same, similar, or additional objections in the specific responses set forth below, or the failure to assert any additional objections, does not waive any of Defendants General Objections. SPECIFIC OBJECTIONS AND RESPONSES Interrogatory No. 1: Identify every legitimate government interest to which you contend the denial of spousal health coverage to federal employees married to someone of the same sex is rationally related or rationally could be understood to be related. For the purposes of this interrogatory, identify means state every such government interest, explain how such denial relates to or rationally could be understood to relate to every such interest, and provide all facts, studies, and evidence that support your contentions. Response: Defendant objects to this Interrogatory on the ground that, given its multi-part definition of identify, it constitutes (at least) three interrogatories and must be counted as such. Defendant

Intervenor-Defendant the Bipartisan Legal Advisory Group of the U.S. House of Representatives Responses to Plaintiff Karen Golinskis Interrogatories, Set One 3:10-cv-0257-JSW

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objects to the Interrogatory as assuming the erroneous legal conclusion that DOMAs application to health coverage for federal employees must be subjected to constitutional scrutiny independently of (i) DOMAs overall provisions, and (ii) the overall provisions of all federal statutes applicable by their terms to marriages and spouses. Accordingly, Defendant objects to this Interrogatory on the grounds that it seeks information that is neither relevant to the claims or defenses asserted in this action nor reasonably calculated to lead to the discovery of admissible evidence. Defendant objects that an Act of Congress can and must be upheld under rationalbasis review under any conceivable rational basis, and that it would be unduly burdensome to identify every conceivable rational basis supporting Section 3 of DOMA, or to anticipate every rational basis that a court might conceive of, any and all of which Defendant contends support DOMA. On rational basis review, DOMA must be upheld if there is any reasonably

conceivable state of facts that could provide a rational basis for the classification. FCC v. Beach Commcns, Inc., 508 U.S. 307, 313 (1993). Furthermore, it is entirely irrelevant for constitutional purposes whether the conceived reason for the challenged distinction actually motivated the legislature. Id. at 315. Rather, those challenging the legislative judgment must 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). Defendant has no obligation to produce evidence to sustain the rationality of a statutory classification. Heller v. Doe, 509 U.S. 312, 320 (1993). According to Supreme Court precedent, a legislative choice is not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data. Beach Commcns, 508 U.S. at 315. Defendant further objects that the Interrogatory improperly calls for legal

Intervenor-Defendant the Bipartisan Legal Advisory Group of the U.S. House of Representatives Responses to Plaintiff Karen Golinskis Interrogatories, Set One 3:10-cv-0257-JSW

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conclusions.

Defendant objects to the Interrogatory to the extent it seeks information or

documents protected by the attorney-client privilege, the attorney work-product doctrine, the Speech or Debate Clause of the United States Constitution, art. I 6, cl. 1, or any other applicable privilege, protection, or restriction on discovery. To any extent that the Interrogatory might be construed as a contention interrogatory, Defendant further objects that a response is not required at this time, before the conclusion of discovery. Defendant additionally objects to the Interrogatory as improperly requesting that Defendant provide all studies and evidence supporting its contentions. Such requests for production are beyond the scope of interrogatories. Subject to and without waiving these objections or the General Objections, Defendant responds that some of the rational bases it contends support DOMA may be found in its briefing filed in this case, in Windsor v. United States, No. 1:10-cv-08534-BSJ-JCF (S.D.N.Y.), Pedersen v. OPM, No. 3:10-cv-1750 (VLB) (D.Conn.), and Lui v. Holder, No. 2:11-cv-01267-SVW-JCG (C.D. Cal.); and in its forthcoming briefing in Massachusetts v. OPM, No. 10-2204 (1st Cir.), and Bishop v. Holder, No. 4:04-cv-00848-TCK-TLW (N.D. Ok.).

Interrogatory No. 2: Identify every exceedingly persuasive justification or important government interest that you contend the denial of spousal health coverage to federal employees married to someone of the same sex serves. For the purposes of this interrogatory, identify means state every such persuasive justification or important government interest, explain how such denial substantially relates thereto, and provide all facts, studies, and evidence that support your contentions. Response:

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Defendant objects to this Interrogatory on the ground that, given its multi-part definition of identify, it constitutes (at least) three interrogatories and must be counted as such. Defendant objects to the Interrogatory as assuming the erroneous legal conclusion that DOMAs application to health coverage for federal employees must be subjected to constitutional scrutiny independently of DOMAs overall provisions, and the overall provisions of all federal statutes applicable by their terms to marriages and spouses. Accordingly, Defendant objects to this Interrogatory on the grounds that it seeks information that is neither relevant to the claims or defenses asserted in this action nor reasonably calculated to lead to the discovery of admissible evidence. Defendant objects to the Interrogatory as assuming the erroneous legal conclusion that Congress required an important government interest or exceedingly persuasive justification to enact DOMA. conclusions. Defendant further objects that the Interrogatory improperly calls for legal Defendant objects to the Interrogatory to the extent it seeks information or

documents protected by the attorney-client privilege, the attorney work-product doctrine, the Speech or Debate Clause of the United States Constitution, art. I 6, cl. 1, or any other applicable privilege, protection, or restriction on discovery.To any extent that the Interrogatory might be construed as a contention interrogatory, Defendant further objects that a response is not required at this time, before the conclusion of discovery. Defendant additionally objects to the Interrogatories as improperly requesting that Defendant provide all studies and evidence supporting its contentions. Such requests for production are beyond the scope of interrogatories. Subject to and without waiving these objections or the General Objections, Defendant responds that some of the government interests it contends support DOMA may be found in its briefing filed in this case, in Windsor v. United States, No. 1:10-cv-08534-BSJ-JCF (S.D.N.Y.), Pedersen

Intervenor-Defendant the Bipartisan Legal Advisory Group of the U.S. House of Representatives Responses to Plaintiff Karen Golinskis Interrogatories, Set One 3:10-cv-0257-JSW

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v. OPM, No. 3:10-cv-1750 (VLB) (D.Conn.), and Lui v. Holder, No. 2:11-cv-01267-SVW-JCG (C.D. Cal.); and in its forthcoming briefing in Massachusetts v. OPM, No. 10-2204 (1st Cir.), and Bishop v. Holder, No. 4:04-cv-00848-TCK-TLW (N.D. Ok.).

Interrogatory No. 3: Identify every compelling government interest that you contend the denial of spousal health coverage to federal employees married to someone of the same sex is narrowly tailored to serve. For the purposes of this interrogatory, identify means state every such compelling government interest, explain how such denial is narrowly tailored thereto, and provide all facts, studies, and evidence that support your contentions. Response: Defendant objects to this Interrogatory on the ground that, given its multi-part definition of identify, it constitutes (at least) three interrogatories and must be counted as such. Defendant objects to the Interrogatory as assuming the erroneous legal conclusion that DOMAs application to health coverage for federal employees must be subjected to constitutional scrutiny independently of DOMAs overall provisions, and the overall provisions of all federal statutes applicable by their terms to marriages and spouses. Accordingly, Defendant objects to this Interrogatory on the grounds that it seeks information that is neither relevant to the claims or defenses asserted in this action nor reasonably calculated to lead to the discovery of admissible evidence. Defendant objects to the Interrogatory as assuming the erroneous legal conclusion that Congress was required to narrowly tailor DOMA to address a compelling government interest. Defendant further objects that the Interrogatory improperly calls for legal conclusions.

Intervenor-Defendant the Bipartisan Legal Advisory Group of the U.S. House of Representatives Responses to Plaintiff Karen Golinskis Interrogatories, Set One 3:10-cv-0257-JSW

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Defendant objects to the Interrogatory to the extent it seeks information or documents protected by the attorney-client privilege, the attorney work-product doctrine, the Speech or Debate Clause of the United States Constitution, art. I 6, cl. 1, or any other applicable privilege, protection, or restriction on discovery. To any extent that the Interrogatory might be construed as a contention interrogatory, Defendant further objects that a response is not required at this time, before the conclusion of discovery. Defendant additionally objects to the Interrogatories as improperly requesting that Defendant provide all studies and evidence supporting its contentions. Such requests for production are beyond the scope of interrogatories. Subject to and without waiving these objections or the General Objections, Defendant responds that some of the government interests it contends support DOMA may be found in its briefing filed in this case, in Windsor v. United States, No. 1:10-cv-08534-BSJ-JCF (S.D.N.Y.), Pedersen v. OPM, No. 3:10cv-1750 (VLB) (D.Conn.), and Lui v. Holder, No. 2:11-cv-01267-SVW-JCG (C.D. Cal.); and in its forthcoming briefing in Massachusetts v. OPM, No. 10-2204 (1st Cir.), and Bishop v. Holder, No. 4:04-cv-00848-TCK-TLW (N.D. Ok.).

Interrogatory No. 4: If you contend that Section 3 of the Defense of Marriage Act, 1 U.S.C. 7, can be supported on the ground that, if the federal government were to provide health coverage to same-sex spouses of its employees, different-sex couples would be less likely to marry, or to stay married, or to raise children while married rather than outside of a marriage, identify all facts, studies, and evidence on which you base your contention.

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Response: Defendant objects to the conditional nature of the Interrogatory as an attempt to disguise a contention interrogatory, as to which a response is premature before the close of discovery. Defendant objects that it has made no contentions with respect to the likely effects, in isolation, of providing health coverage to same-sex spouses of federal employees. Accordingly, Defendant objects to this Interrogatory on the grounds that it seeks information that is neither relevant to the claims or defenses asserted in this action nor reasonably calculated to lead to the discovery of admissible evidence. Defendant objects to the Interrogatory to the extent it seeks information or documents protected by the attorney-client privilege, the attorney work-product doctrine, the Speech or Debate Clause of the United States Constitution, art. I 6, cl. 1, or any other applicable privilege, protection, or restriction on discovery. Defendant further objects to the Interrogatory to the extent it assumes the erroneous legal conclusions that (1) DOMAs application to health coverage for federal employees must be subjected to constitutional scrutiny independently of (i) DOMAs overall provisions, and (ii) the overall provisions of all federal statutes applicable by their terms to marriages and spouses; and (2) that Defendant bears the burden of producing evidence to support a rational basis served by DOMA.

Interrogatory No. 5: If you contend that Section 3 of the Defense of Marriage Act, 1 U.S.C. 7, can be supported on the ground that children raised by same-sex married couples are less likely to be well-adjusted or healthy than children raised by different-sex married couples, identify all facts, studies, and evidence on which you base the contention.

Intervenor-Defendant the Bipartisan Legal Advisory Group of the U.S. House of Representatives Responses to Plaintiff Karen Golinskis Interrogatories, Set One 3:10-cv-0257-JSW

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Response: Defendant objects to the conditional nature of the Interrogatory as an attempt to disguise a contention interrogatory, as to which a response is premature before the close of discovery. Defendant objects to the Interrogatory to the extent it seeks information or documents protected by the attorney-client privilege, the attorney work-product doctrine, the Speech or Debate Clause of the United States Constitution, art. I 6, cl. 1, or any other applicable privilege, protection, or restriction on discovery. Defendant objects to the Interrogatory to the extent it assumes the erroneous legal conclusion that Defendant bears the burden of producing evidence to support a rational basis served by DOMA. Defendant objects to the Interrogatory as unduly vague in its use of the undefined term well-adjusted.

Interrogatory No. 6: If you dispute that lesbians and gay men have experienced a history of unequal treatment in the United States because of their sexual orientation, identify all facts, studies, and evidence on which you base that position. Response: Defendant objects to the conditional nature of the Interrogatory as an attempt to disguise a contention interrogatory, as to which a response is premature before the close of discovery. Defendant further objects that the Interrogatory is unduly vague in that it provides no metric for determining how much unequal treatment is required to amount to a history of such. Defendant objects to the Interrogatory to the extent it seeks information or documents protected by the attorney-client privilege, the attorney work-product doctrine, the Speech or Debate Clause of the United States Constitution, art. I 6, cl. 1, or any other applicable privilege, protection, or restriction on discovery. Subject to and without waiving these

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objections and the General Objections, Defendant responds that it does not dispute the statement by Plaintiffs expert witness that antigay discrimination . . . [was] a unique and relatively shortlived product of the twentieth century, George Chauncey, Why Marriage?: The History

Shaping Todays Debate Over Gay Equality 14 (2004), and that, as a result, some lesbians and gay men in the United States have been treated differently because of their sexual orientation, although Defendant does not admit that any unidentified instance of differential treatment was illegal or otherwise wrongful.

Interrogatory No. 7: If you dispute that most individuals, whether lesbian, gay, bisexual, or heterosexual, would find it difficult or harmful to change their sexual orientation, identify all facts, studies, and evidence on which you base that position. Response: Defendant objects to the conditional nature of the Interrogatory as an attempt to disguise a contention interrogatory, as to which a response is premature before the close of discovery. Defendant objects to the Interrogatory as seeking information related to an issue that is neither relevant to this case nor reasonably calculated to lead to admissible evidence. Although the ability of homosexual persons to change their sexual orientation and the extent to which a homosexual orientation is a choice may be relevant to this case, the ability of the general class of heterosexual persons to change their sexual orientation is not. But the answers to questions regarding the ability of most individuals to change their sexual orientation most likely will be entirely determined by this irrelevant question, because most estimates state that greater than

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95% of all individuals are heterosexual. E.g., Gary J. Gates, How Many People are Lesbian, Gay Bisexual, and Transgender?, http://services.law.ucla.edu/williamsinstitute/pdf/How-manypeople-are-LGBT-Final.pdf. In light of these observations, and subject to and without waiving these objections or the General Objections, Defendant therefore further responds that it has not formed any opinion as to the degree of difficulty or harm, if any, that most individuals would experience if they hypothetically attempted to change their sexual orientation.

Interrogatory No. 8: If you dispute that sexual orientation is an important aspect of a persons identity, identify all facts, studies, and evidence on which you base that position. Response: Defendant objects to the conditional nature of the Interrogatory as an attempt to disguise a contention interrogatory, as to which a response is premature before the close of discovery. Defendant objects that the Interrogatory is unduly vague in its use of the phrase important aspect of a persons identity. Subject to and without waiving this objection and the General Objections, Defendant responds that it does not dispute that sexual orientation is a significant component of ones personality.

Interrogatory No. 9: If you dispute that lesbians and gay men continue to face obstacles to rectifying their unequal treatment in the United States through the political process, identify all facts, studies, and evidence on which you base that position. Response: Defendant objects to the conditional nature of the Interrogatory as an attempt to disguise a contention interrogatory, as to which a response is premature before the close of

Intervenor-Defendant the Bipartisan Legal Advisory Group of the U.S. House of Representatives Responses to Plaintiff Karen Golinskis Interrogatories, Set One 3:10-cv-0257-JSW

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discovery. Defendant objects to the Interrogatory to the extent it assumes that any unidentified instance of differential treatment of homosexual persons by government is wrongful and requires rectifying. Defendant further objects that the Interrogatory is unduly vague in that it provides no metric for determining whether an obstacle exists to achieving a specified outcome through the political process. The Interrogatory appears to seek the identification of facts, studies and evidence in support of the position that lesbians and gay men face no meaningful political opposition anywhere in the country to repealing any laws that they regard as discriminating against them, enacting laws that will prevent any private conduct that they regard as discriminatory, or enacting laws mandating some unspecified form of compensation for past instances of government and private discrimination. On that understanding, and subject to and without waiving these objections or the General Objections, Defendant responds that it does not advance any such contention.

Interrogatory No. 10: If you contend that sexual orientation is related to an individuals ability to perform or contribute to society, identify all facts, studies, and evidence on which you base that contention. Response: Defendant objects to the conditional nature of the Interrogatory as an attempt to disguise a contention interrogatory, as to which a response is premature before the close of discovery. Defendant further objects that, in the equal protection context, whether or not a particular characteristic is related to persons ability to perform or contribute to society is a legal conclusion. To the extent the Interrogatory uses this phrase in a non-legal sense, Defendant objects that it is unduly vague and a matter of unverifiable opinion.

Intervenor-Defendant the Bipartisan Legal Advisory Group of the U.S. House of Representatives Responses to Plaintiff Karen Golinskis Interrogatories, Set One 3:10-cv-0257-JSW

Case3:10-cv-00257-JSW Document176-10

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Intervenor-Defendant the Bipartisan Legal Advisory Group of the U.S. House of Representatives Responses to Plaintiff Karen Golinskis Interrogatories, Set One 3:10-cv-0257-JSW Interrogatory No. 12: If you dispute that married lesbian and gay federal employees and their children would be helped if the federal government afforded them the same employee health benefits that the federal government affords to different-sex married couples, identify all facts, studies, and evidence on which you base that position. Response: Defendant objects to the conditional nature of the Interrogatory as an attempt to disguise a contention interrogatory, as to which a response is premature before the close of discovery. Defendant further objects to the Interrogatory as unduly vague in its reference to help[ing] federal employees and their children. The Interrogatory appears to be seeking the identification of facts, studies and evidence in support of a contention that the federal governments provision of health benefits to same-sex state-law spouses of its employees would not in fact benefit any of those persons. On that understanding, and subject to and without waiving these objections and Interrogatory No. 11: If you contend that married same-sex couples generally are less fit as parents than married different-sex couples, identify all facts, studies, and evidence on which you base that contention. Response: Defendant objects to the conditional nature of the Interrogatory as an attempt to disguise a contention interrogatory, as to which a response is premature before the close of discovery. Defendant further objects to the Interrogatory as unduly vague in its reference to the undefined concept of fitness for parenthood.

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the General Objections, Defendant states that it advances no such contention. To the extent the Interrogatory seeks facts, studies, and evidence supporting a contention that providing federal employee health benefits to same-sex state-law spouses would not benefit any of those persons children, subject to and without waiving these objections or the General Objections, Defendant states that it has not formed an opinion on this matter. To the extent that the Interrogatory seeks the identification of facts, studies and evidence in support of a contention that the provision of federal employee health benefits to any unidentified individual same-sex state-law spouse would not benefit that person or his or her children, Defendant objects that the Interrogatory cannot be answered without additional information about such unidentified person and children.

Interrogatory No. 13: If you contend that providing federal employees married to someone of the same sex the same spousal health benefits that the federal government provides to its employees married to someone of a different sex will destabilize or otherwise affect different-sex marriages, identify all facts, studies, and evidence on which you base that contention. Response: Defendant objects to the conditional nature of the Interrogatory as an attempt to disguise a contention interrogatory, as to which a response is premature before the close of discovery. Defendant further objects to the Interrogatory as unduly vague in its reference to destabilize[ing] or affect[ing] marriages. Defendant objects that it has made no contentions with respect to the likely effects, in isolation, of providing health benefits to same-sex spouses of federal employees. Accordingly, Defendant objects to this Interrogatory on the grounds that it seeks information that is neither relevant to the claims or defenses asserted in this action nor reasonably calculated to lead to the discovery of admissible evidence. Defendant further objects

Intervenor-Defendant the Bipartisan Legal Advisory Group of the U.S. House of Representatives Responses to Plaintiff Karen Golinskis Interrogatories, Set One 3:10-cv-0257-JSW

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to the Interrogatory to the extent it assumes the erroneous legal conclusions that DOMAs application to health coverage for federal employees must be subjected to constitutional scrutiny independently of DOMAs overall provisions, and the overall provisions of all federal statutes applicable by their terms to marriages and spouses; and that Defendant bears the burden of producing evidence to support a rational basis served by DOMA.

Interrogatory No. 14: If you contend that providing federal employees married to someone of the same sex the same spousal health benefits that the federal government provides to its employees married to someone of a different sex will cause fewer heterosexuals to marry, identify all facts, studies, and evidence on which you base that contention. Response: Defendant objects to the conditional nature of the Interrogatory as an attempt to disguise a contention interrogatory, as to which a response is premature before the close of discovery. Defendant objects that it has made no contentions with respect to the likely effects, in isolation, of providing health benefits to same-sex spouses of federal employees. Accordingly, Defendant objects to this Interrogatory on the grounds that it seeks information that is neither relevant to the claims or defenses asserted in this action nor reasonably calculated to lead to the discovery of admissible evidence. Defendant further objects to the Interrogatory to the extent it assumes the erroneous legal conclusions that DOMAs application to health coverage for federal employees must be subjected to constitutional scrutiny independently of DOMAs overall provisions, and the overall provisions of all federal statutes applicable by their terms to marriages and spouses;

Intervenor-Defendant the Bipartisan Legal Advisory Group of the U.S. House of Representatives Responses to Plaintiff Karen Golinskis Interrogatories, Set One 3:10-cv-0257-JSW

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and that Defendant bears the burden of producing evidence to support a rational basis served by DOMA.

Interrogatory No. 15: If you contend that denying or blocking the provision of spousal employee health insurance to married lesbian and gay federal employees will cause more heterosexual individuals to procreate or raise children within a marriage rather than outside of a marriage, identify all facts, studies, and evidence on which you base that contention. Response: Defendant objects to the conditional nature of the Interrogatory as an attempt to disguise a contention interrogatory, as to which a response is premature before the close of discovery. Defendant objects that it has made no contentions with respect to the likely effects, in isolation, of providing health benefits to same-sex spouses of federal employees. Accordingly, Defendant objects to this Interrogatory on the grounds that it seeks information that is neither relevant to the claims or defenses asserted in this action nor reasonably calculated to lead to the discovery of admissible evidence. Defendant further objects to the Interrogatory to the extent it assumes the erroneous legal conclusions that DOMAs application to health coverage for federal employees must be subjected to constitutional scrutiny independently of DOMAs overall provisions, and the overall provisions of all federal statutes applicable by their terms to marriages and spouses; and that Defendant bears the burden of producing evidence to support a rational basis served by DOMA.

Intervenor-Defendant the Bipartisan Legal Advisory Group of the U.S. House of Representatives Responses to Plaintiff Karen Golinskis Interrogatories, Set One 3:10-cv-0257-JSW

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Interrogatory No. 16: For each response to Requests for Admission Nos. 1 through 4 in Plaintiffs Requests for Admission, Set One, propounded on August 12, 2011, that is other than an unqualified admission, please explain in detail the basis for your response, including making clear which parts of the Request you admit and which you do not and why, and identify all facts, studies, and evidence on which you base that response. Response: Defendant incorporates by reference its General Objections to the Requests for Admission and its specific objections to the respective Requests for Admission. Subject to and without waiving these objections and the General Objections herein, Defendant states that the bases for its responses to the Requests for Admission are set forth in those responses. /s/ H. Christopher Bartolomucci Paul D. Clement H. Christopher Bartolomucci Conor B. Dugan Nicholas J. Nelson BANCROFT PLLC 1919 M Street, N.W., Suite 470 Washington, D.C. 20036 (202) 234-0090 Counsel for Defendant-Intervenor, the Bipartisan Legal Advisory Group of the U.S. House of Representatives Dated: September 15, 2011

Intervenor-Defendant the Bipartisan Legal Advisory Group of the U.S. House of Representatives Responses to Plaintiff Karen Golinskis Interrogatories, Set One 3:10-cv-0257-JSW

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VERIFICATION Pursuant to 28 U.S.C. 1746, I declare under penalty of perjury that the foregoing responses to interrogatories are true and correct to the best of my knowledge and belief Executed on September 15, 2011, in Washington, D.C.

Kerry W. Kircher General Counsel United States House of Representatives

Intervenor-Defendant the Bipartisan Legal Advisory Group of the U.S. House of Representatives' Responses to Plaintiff Karen Golinski's Interrogatories, Set One 3:10-cv-0257-JSW

Case3:10-cv-00257-JSW Document176-11

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Case3:10-cv-00257-JSW Document176-11 Letitia Anne Peplau

Filed11/01/11 Page2 of 8 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

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1 2 3 4 5 6 7 Whereupon, LETITIA ANNE PEPLAU, Ph.D., after having been first duly sworn, was examined and testified as follows: EXAMINATION BY MR. DUGAN: Q. Good morning, Dr. Peplau. I am going to go through some ground 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 briefly. rules. I know you have done at least one

deposition before, but please wait for my guestions. other. We will try not to speak over each

And give verbal responses instead of

nods, that won't be put on the record. If you don't understand a guestion, ask me to rephrase it. I can get bolloxed up

at times, so feel free to ask me to rephrase it or try to come at you a different way. Is there any reason you can't be truthful today? A. Q. No. Oh, and if you need a break, just And I may do the same thing.

please ask.

I want to go through your background

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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. homosexual

L.A. Peplau, Ph.D. acts? Object to the form.

MR. BENSON:

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 orientation

come to understand their sexual

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 orientation is going to be. Q. In paragraph 15 of Exhibit 2, you sexual

describe the continuum of sexual orientation.

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L.A. gay male c o u p l e s Q. Thank

Peplau,

Ph.D. monogamous.".

t o be s e x u a l l y

you.

Next, I would like you to turn to Exhibit 4, which is the Herek article entitled, "Demographic, Psychological and Social Characteristics of Self-Identified Lesbian, Gay and Bisexual Adults in a U.S. Probability Sample." When you have it, Dr. Peplau, if I could ask you to turn to table 3, please. A. Q. Yes. Do you recall that during his

questioning Mr. Dugan asked you some questions about the final column on the right of this article? A. Q. Yes. Can you please comment on the

percentage of total gay men, lesbians and bisexual men and women who recorded having either no choice at all or only a small amount of choice or perceived choice about their sexual orientation? A. Yes. The total percent in that

classification would be 74.8 percent.

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L.A. Peplau, Ph.D. Q. Can I ask you, Dr. Peplau, do we know

what the respondents meant here when they were reporting on their perceived choice about sexual orientation? A. We really do not know what the

respondents meant when they indicated that they had, for example, a fair amount of choice. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I think one possibility is that what

they are really saying is that they recognize that they had same sex romantic sexual attractions and then they chose rather than denying or suppressing those attractions, that they chose to act upon them by, for example. forming a same sex relationship. We do not

know, but I think there are many -- there are possible interpretations of what choice might have meant to the respondents. Q. If I could ask you please to turn to

Exhibit 2, which is your expert affidavit. The first passage I would like to focus you on is paragraph 37 on page 17. Do you recall that Mr. Dugan asked you a number of questions relating to this paragraph?

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^^^^ ^2aB^

A.

Absolutely.

I am not an attorney, I

never studied these issues, so that's certainly possible. MR. BENSON: I would like to consult

for one moment with my colleagues. (Discussion held off the record.) MR. BENSON: All right, we are done

with our questions pending any further questions from you. MR. DUGAN: (Time noted: I am done. 2:35 p.m.)

LETITIA ANNE PEPLAU, Ph.D.

Subscribed and sworn to before me this T n


Of ^VA^V

day

)u_20ii
-

JOSUE GUARDADO Commission # 1888339

Notary Public - California i Los Angeles County g My Comm. Expires May 6,2014 L

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Page 107
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 MARGARET EUSTACE I, MARGARET EUSTACE, a Shorthand Reporter and notary public, within and for the State of New York, do hereby certify: C E R T I F I C A T I O N

That LETITIA ANNE PEPLAU, Ph.D., the witness whose examination is hereinbefore set forth, was first duly sworn by me, and that transcript of said testimony is a true record of the testimony given by said witness. I further certify that I am not related to any of the parties to this action by blood or marriage, and that I am in no way interested in the outcome of this matter. IN WITNESS WHEREOF, I have hereunto set my hand this , 2011. day of

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Case3:10-cv-00257-JSW Document176-12 Gary M. Segura, Ph. D.


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

Filed11/01/11 Page2 of 6 July 8, 2011


Page 3

DEPOSITION OF GARY MICHAEL SEGURA, Ph.D.

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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.

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. --------------------------------------

Page 4
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APPEARANCES: PAUL WEISS RIFKIND WHARTON & GARRISON, LLP Attorneys for Plaintiffs 1285 Avenue of the Americas New York, New York 10019-6064 BY: ROBERTA A. KAPLAN, ESQ. NEIL P. KELLY, ESQ. JANNA BERKE, ESQ. AMERICAN CIVIL LIBERTIES UNION FOUNDATION Attorneys for Plaintiff Windsor 125 Broad Street - 18th floor New York, New York 10004-2400 BY: JAMES D. ESSEKS ESQ. GAY & LESBIAN ADVOCATES & DEFENDERS Attorneys for Plaintiffs in Pedersen Case 30 Winter Street - Suite 800 Boston, Massachusetts 02108 BY: VICKIE I. HENRY, ESQ.

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Page 5
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Filed11/01/11 Page3 of 6 July 8, 2011


Page 7

BANCROFT PLLC Attorneys for Defendants 1919 M. Street, N.W. - Suite 470 Washington, D.C. 20036 BY: CONOR DUGAN, ESQ. U.S. DEPARTMENT OF JUSTICE Attorneys for Defendants 20 Massachusetts Avenue, N.W., Room 7218 Washington, D.C. 20530 BY: CHRISTOPHER HALL, ESQ. NEW YORK CIVIL LIBERTIES UNION Attorneys for Plaintiff 125 Broad Street - 19th floor New York, New York 10004-2400 BY: MELISSA GOODMAN, ESQ.

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Whereupon, GARY MICHAEL SEGURA, Ph.D., after having been first duly sworn, was examined and testified as follows: EXAMINATION BY MR. DUGAN: Q. Good morning, Professor Segura. A. Good morning. Q. Let me just go over some of the ground rules of a deposition. I know you have done a deposition or two before but I just want to reiterate some of these things. First of all, my name is Conor Dugan from Bancroft PLLC -MR. DUGAN: I was wondering if the other attorneys could put their names on the record. MS. KAPLAN: Sure. Roberta Kaplan from Paul Weiss. I am here with a number of my colleagues including Janna Berke, Neil Kelly and some summer associates. MS. HENRY: Vickie Henry from Gay & Lesbian Advocates & Defenders, counsel in the Pedersen matter.

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Page 8
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IT IS HEREBY STIPULATED AND AGREED that all objections, except as to the form of the questions, shall be reserved to the time of the trial; IT IS FURTHER STIPULATED AND AGREED that the within examination may be subscribed and sworn to before any notary public with the same force and effect as though subscribed and sworn to before this court.

G. Segura MS. GOODMAN: Melissa Goodman from the New York Civil Liberties Union, and I am here with colleague as well. MR. ESSEKS: James Esseks from ACLU, counsel in the Windsor matter. MR. HALL: Christopher Hall from Department of Justice and representing defendants in this matter. MR. DUGAN: Okay, thank you. Q. So just to go over the ground rules, wait for my question so we don't speak over each other, and give verbal responses. If you need a break, just ask, and I am sweating up a storm here, so I know I will need a break? MS. KAPLAN: No one will be offended if you take off your jacket. MR. DUGAN: Thank you. Q. If don't understand a question, ask me to rephrase it and I will try to explain it to you in better language. Is there any reason why you can't be deposed today? A. No. Q. Is there any reason you couldn't

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Page 167

G. Segura and has one associate. Some law firm are more important. Some law firms have a history of being on the left and some law firms have a history of being on the right. So it less clear, for example, that the word made would apply if we have a liberal law firm that decides not to take the case, for example. So I need to know more specifics before drawing a conclusion. MR. DUGAN: Can I have this marked Exhibit 5. (Defendant's Exhibit 5, June 15, 2009 letter, marked for identification.) Q. Can you familiarize yourself with that. {Witness complies.) A. I am generally familiar with it now that I have skimmed it. I have not, of course, read it cover to cover. That would take some time. I don't know if you would like me to. Q. Only if you want to. A. No -- well, it depends on the

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 almost two years before the administration changed its policy on DOMA, so maybe in the neighborhood of 21 months. Second, the President of the United States receives literally tens of thousands of letters a day. He probably receives hundreds of letters a day from leaders of large organizations. So that a letter precedes a policy change would require me to assume that the order of, the temporal order of the events is causal, and I have no reason to believe that. I need a little bit more than a letter. Q. Fair enough. MR. DUGAN: Mark this as Exhibit 6. I will represent that this was taken from the White House website. (Defendant's Exhibit 6, excerpt from White House website, marked for identification.) Q. What is this Exhibit 6, Dr. Segura? MS. KAPLAN: Objection to the form and foundation. If you know. A. Based on my observation it appears to

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Page 168
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G. Segura question. If you ask me a specific question, I may have to read the section. Q. Let me stipulate that this is a letter that was written to President Barack Obama lamenting the fact that his administration was defending DOMA. MS. KAPLAN: Did you get this off a website? How did you get this? MR. DUGAN: I got it from Chris Bartolmucci. I presume he got it from a website. I can fill in that gap. MS. KAPLAN: If you can just let me know. MR. DUGAN: Sure. Q. This letter was written to President Obama June 2009. Sometime thereafter, the President and the Attorney General determined that they believe DOMA to be unconstitutional. Could this be evidence of politically effective power? MS. KAPLAN: Objection to form. You can answer. A. It could, but I am not buying it. First of all, this letter was written

G. Segura be a speech that the president gave last week. Q. I will stipulate for the record that this is a speech that the president gave observing LGBT Pride Month. On the third page, middle paragraph, the president stated, "But the bottom line is, I am hopeful. I am hopeful because of the changes we've achieved just in these past two years. Think about it. It's astonishing. Progress that just a few years ago people would have thought were impossible. And more than that, what gives me hope is the deeper shift we're seeing that's a transformation not just in our laws but in the hearts and minds of people - the progress led not by Washington but by ordinary citizens." Does that speech demonstrate that gays and lesbians have influence with the Obama administration? A. I am not sure I would ever say such a thing. The speech demonstrates that the Obama administration reaches out to gays and lesbians for political support, maybe agrees with them on a series of issues, but a speech

42 (Pages 165 to 168)

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Gary M. Segura, Ph. D.

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tf

G. Segura hopefully a somewhat longer weekend. Thank you. (Time noted: 1:40 p.m.)

GARY ^KCHAEL SEGURA, Ph.D.

Subscribed and sworn to before me this IfJTi^iay

Notary

A^A. lll A.^^^ to ^^.,A>^^v^w t A fc . OFFICIAL. 3EAL.

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ALBERT SIUTOUNG 3 NOTARY PUBLIC- CALIFORNIA 0 Commission #1923121 A v County of San Mateo My Commission mp\m )m, 24,2015

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Case3:10-cv-00257-JSW Document176-12 Gary M. Segura, Ph. D.


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G. Segura of the affirmative exercise of power. I will say that that brief helps gays and lesbians towards achieving one of their goals, and if that, in fact, comes to pass, they would be better off in society then they were before, and, hence, marginally more powerful. So, yes, the switch and the brief contribute in the end to gay and lesbian political power, but it is not -- and would make them more powerful should it come to pass. But it is not necessarily evidence that they exercise power in making it happen, because I don't have knowledge of that. It didn't happen for X number of years and it is not clear to me that there would have been any price that the administration would have paid. Q. That was my final question. MS. KAPLAN: Just give us two seconds to see if we have any follow-up. MR. DUGAN: Sure. (Discussion held off the record.) MS. KAPLAN: Back on record. This is Roberta Kaplan to say we have nothing further and everyone can go home for

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INDEX NO. WITNESS G. Segura EXAMINATION BY Mr. Dugan 5 PAGE

DEFENDANT'S EXHIBIT NO. DESCRIPTION 1 - Curriculum Vitae 8 2 - Expert Affidavit 3 - List of Sources 9 9

PAGE

4 - Article from Political Research Quarterly 159 5 - June15, 2009 letter 163 165

6 - Excerpt from White House website 7 - Excerpt from DNC website

168

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G. Segura hopefully a somewhat longer weekend. Thank you. (Time noted: 1:40 p.m.) ________________________ GARY MICHAEL SEGURA, Ph.D. Subscribed and sworn to before me this day of , 2011. _______________________ Notary Public

CERTIFICATION I, Margaret Eustace, a Shorthand Reporter and notary public, within and for the State of New York, do hereby certify: That GARY MICHAEL SEGURA, Ph.D., the witness whose examination is hereinbefore set forth, was first duly sworn by me, and that transcript of said testimony is a true record of the testimony given by said witness. I further certify that I am not related to any of the parties to this action by blood or marriage, and that I am in no way interested in the outcome of this matter. IN WITNESS WHEREOF, I have hereunto set my hand this _____ day of ________________, 2011. ________________________ MARGARET EUSTACE

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PAUL D. CLEMENT (DC Bar 433215) pclement@bancroftpllc.com H. CHRISTOPHER BARTOLOMUCCI (DC Bar 453423) cbartolomucci@bancroftpllc.com CONOR B. DUGAN (MI Bar P66901) cdugan@bancroftpllc.com NICHOLAS J. NELSON (MD Bar) nnelson@bancroftpllc.com BANCROFT PLLC 1919 M Street, NW, Suite 470 Washington, DC 20036 202-234-0090 (phone); 202-234-2806 (fax) OF COUNSEL: KERRY W. KIRCHER, GENERAL COUNSEL (DC Bar 386816) Kerry.Kircher@mail.house.gov CHRISTINE DAVENPORT, SR. ASST COUNSEL (NJ Bar) Christine.Davenport@mail.house.gov KATHERINE E. MCCARRON, ASST COUNSEL (DC Bar 486335) Katherine.McCarron@mail.house.gov WILLIAM PITTARD, ASST COUNSEL (DC Bar 482949) William.Pittard@mail.house.gov KIRSTEN W. KONAR, ASST COUNSEL (DC Bar 979176) Kirsten.Konar@mail.house.gov OFFICE OF GENERAL COUNSEL U.S. House of Representatives 219 Cannon House Office Building Washington, DC 20515 202-225-9700 (phone); 202-226-1360 (fax) Counsel for Intervenor-Defendant The Bipartisan Legal Advisory Group of the U.S. House of Representatives

Intervenor-Defendant the Bipartisan Legal Advisory Group of the U.S. House of Representatives Responses to Plaintiff Karen Golinskis Requests for Admission, Set One 3:10-cv-0257-JSW

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

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA ) ) ) Plaintiff, ) ) v. ) ) UNITED STATES OFFICE OF PERSONNEL ) MANAGEMENT, et al., ) ) Defendants. ) __________________________________________)

Case No. 3:10-cv-0257-JSW INTERVENOR-DEFENDANT THE BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES RESPONSES TO PLAINTIFF KAREN GOLINSKIS REQUESTS FOR ADMISSION, SET ONE

Pursuant to Rules 26 and 36 of the Federal Rules of Civil Procedure, and Local Civil Rule 51, Intervenor-Defendant the Bipartisan Legal Advisory Group of the U.S. House of Representatives (Defendant) objects and responds to Plaintiffs Requests for Admission, Set One (Requests) as follows:1 GENERAL OBJECTIONS AND RESPONSES Defendant objects to the Requests to the extent that they purport to impose any

requirement or discovery obligation on Defendant beyond those set forth in the Federal Rules of Civil Procedure. 2. Defendant objects to the Requests to the extent they seek information or

documents protected by the attorney-client privilege, the attorney work-product doctrine, the Speech or Debate Clause of the United States Constitution, art. I, 6, cl. 1, or any other
1

The Bipartisan Legal Advisory Group currently is comprised of the Honorable John A. Boehner, Speaker of the House, the Honorable Eric Cantor, Majority Leader, the Honorable Kevin McCarthy, Majority Whip, the Honorable Nancy Pelosi, Democratic Leader, and the Honorable Steny H. Hoyer, Democratic Whip. The Democratic Leader and the Democratic Whip decline to support the filing of these Responses.

Intervenor-Defendant the Bipartisan Legal Advisory Group of the U.S. House of Representatives Responses to Plaintiff Karen Golinskis Requests for Admission, Set One 3:10-cv-0257-JSW

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applicable privilege, protection, or restriction on discovery.

The responses that follow

encompass responsive, non-privileged, non-exempt information and documents. Any disclosure of privileged or confidential information or documents is not intended to waive any applicable privileges or protections. 3. Defendant objects to the Requests to the extent that they seek information or

documents not relevant to the claims or defenses in this litigation and/or not reasonably calculated to lead to the discovery of admissible evidence, and to the extent Plaintiff is requesting documents and information which may include hearsay and other forms of information, which are neither reliable or admissible in evidence. 4. Defendant objects to the Requests to the extent they seek information or

documents already known to Plaintiff, in the possession, custody, or control of Plaintiff, previously filed with the Court in this litigation, or otherwise available through or from a more convenient, less burdensome, or less expensive source. 5. Defendant objects to the Requests to the extent they are unreasonably cumulative

or duplicative; cause annoyance, embarrassment, oppression, undue burden or expense; or are onerous, uncertain, or vague. Defendant further objects to these interrogatories to the extent they use terms that are not defined or understood, or are vaguely or ambiguously defined, and therefore fail to identify with reasonable particularity the information sought. Defendant will not speculate as to the meaning to ascribe to such terms. 6. Defendant has conducted a reasonable investigation concerning the information

sought by the Requests and objects to the extent they seek to require Defendant to maintain or obtain information beyond that available through reasonable investigation and/or in the time

Intervenor-Defendant the Bipartisan Legal Advisory Group of the U.S. House of Representatives Responses to Plaintiff Karen Golinskis Requests for Admission, Set One 3:10-cv-0257-JSW

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permitted for these responses.

In addition, Defendant continues to search for additional

information. Defendant reserves the right to amend, supplement, or modify these responses, if necessary, to reflect additional responsive information or documents as it or they become known or available. 7. Each of Defendants responses to the Requests is subject to the General

Objections set forth herein. The assertion of the same, similar, or additional objections in the specific responses set forth below, or the failure to assert any additional objections, does not waive any of Defendants General Objections.

SPECIFIC OBJECTIONS AND RESPONSES Request for Admission No. 1: If Ms. Golinski were a man, rather than a woman, she would be permitted to enroll her spouse in her employer-sponsored family health insurance plan. Response: Defendant objects to this Request for Admission as follows: (a) Defendant objects to this Request for Admission as vague and ambiguous insofar as it is premised on a hypothetical scenario that does not specify elements necessary to provide the basis for an informed response. (b) Defendant further objects that the hypothetical situation described calls for an undue amount of speculation, including as to the gender of Ms. Golinskis spouse in the counter-factual hypothetical suggested by Plaintiff. Subject to and without waiving this objection and the General Objections, Defendant admits that if Plaintiff were a man married to one woman, Plaintiffs federal employment would qualify that woman for a government-sponsored family health insurance plan.

Intervenor-Defendant the Bipartisan Legal Advisory Group of the U.S. House of Representatives Responses to Plaintiff Karen Golinskis Requests for Admission, Set One 3:10-cv-0257-JSW

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Intervenor-Defendant the Bipartisan Legal Advisory Group of the U.S. House of Representatives Responses to Plaintiff Karen Golinskis Requests for Admission, Set One 3:10-cv-0257-JSW Request for Admission No. 3: Under the governments current contractual arrangement with Blue Cross and Blue Shield, an employee who has elected a self and family coverage plan under the Blue Cross and Blue Shield Service Benefit Plan can enroll additional eligible family members at no additional cost in premiums to the government. (b) Request for Admission No. 2: If Ms. Golinski were a man, rather than a woman, she would be permitted to enroll her spouse in her employer-sponsored family health insurance plan regardless of her or her spouses ability or intention to procreate. Response: Defendant objects to this Request for Admission as follows: (a) Defendant objects to this Request for Admission as vague and ambiguous insofar as it is premised on a hypothetical scenario that does not specify elements necessary to provide the basis for an informed response. Defendant further objects that the hypothetical situation described calls for an undue amount of speculation, including as to the gender of Ms. Golinskis spouse in the counter-factual hypothetical suggested by Plaintiff. Subject to and without waiving this objection and the General Objections, Defendant admits that if Plaintiff were a man married to one woman, Plaintiffs federal employment would qualify that woman for a government-sponsored family health insurance plan without regard for either that womans or Plaintiffs ability or intention to procreate.

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Response: Defendant objects to this Request for Admission as follows: (a) Defendant objects to this Request for Admission on the grounds that it seeks information that exceeds the scope of discovery as set forth in Federal Rule of Civil Procedure 26(b). (b) Defendant further objects to this Request for Admission on the grounds that it seeks information that is neither relevant to the claims or defenses asserted in this action nor reasonably calculated to lead to the discovery of admissible evidence. Subject to and without waiving the General Objections, Defendant does not admit that the total number of eligible or enrolled family members has no bearing on the cost in premiums (paid either by the employer or the employee) that Blue Cross and Blue Shield (or any other insurer) will or may demand when negotiating a new contractual arrangement or an extension of an expiring one.

Request for Admission No. 4: If Ms. Golinski were a man, rather than a woman, she would be permitted to enroll her spouse in her employer-sponsored family health insurance plan regardless of whether or not her spouse has the option to enroll in her own employer-sponsored plan. Response: Defendant objects to this Request for Admission as follows: (a) Defendant objects to this Request for Admission as vague and ambiguous insofar as it is premised on a hypothetical scenario that does not specify elements necessary to provide the basis for an informed response.

Intervenor-Defendant the Bipartisan Legal Advisory Group of the U.S. House of Representatives Responses to Plaintiff Karen Golinskis Requests for Admission, Set One 3:10-cv-0257-JSW

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(b)

Defendant further objects that the hypothetical situation described calls for an undue amount of speculation, including as to the gender of Ms. Golinskis spouse in the counter-factual hypothetical suggested by Plaintiff.

Subject to and without waiving this objection and the General Objections, Defendant admits that if Plaintiff were a man married to one woman, Plaintiffs federal employment would qualify that woman for a government-sponsored family health insurance plan without regard for her other insurance options.

/s/ H. Christopher Bartolomucci Paul D. Clement H. Christopher Bartolomucci Conor B. Dugan Nicholas J. Nelson BANCROFT PLLC 1919 M. Street, N.W., Suite 470 Washington, D.C. 20036 Telephone: (202) 234-0090 Fax: (202) 234-2806 Counsel for Intervenor-Defendant, the Bipartisan Legal Advisory Group of the United States House of Representatives September 15, 2011

Intervenor-Defendant the Bipartisan Legal Advisory Group of the U.S. House of Representatives Responses to Plaintiff Karen Golinskis Requests for Admission, Set One 3:10-cv-0257-JSW

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OPINIONS BELOW ... 2 For Opinion See 116 S.Ct. 1620 Roy ROMER, as Governor of the State of Colorado, and the State of Colorado, Petitioners, v. Richard G. EVANS, Angela Romero, Linda Fowler, Paul Brown, Priscilla Inkpen, John Miller, the Boulder Valley School District RE-2, the City and County of Denver, the City of Boulder, the City of Aspen, and the City Council of Aspen, Respondents. No. 94-1039. October Term, 1994. April 21, 1995. On Writ of Certiorari to the Supreme Court of the State of Colorado Brief for Petitioners [FN*] Gale A. Norton , Attorney General of Colorado, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, John Daniel Dailey, Deputy Attorney General, Paul Farley, Deputy Attorney General, Colorado Department of Law, 1525 Sherman Street, 5th Floor, Denver, Colorado 80203, Telephone: (303) 866-4500, Rex E. Lee, Carter G. Phillips, Special Assistant Attorneys General, 2840 Iroquois Drive, Provo, Utah 84604, Telephone: (801) 373-3342, Attorneys for Petitioners FN* Counsel of Record QUESTION PRESENTED Whether a popularly enacted state constitutional amendment precluding special state or local legal protections for homosexuals and bisexuals violates a fundamental right of independently identifiable, yet non-suspect, classes to seek such special protections. *iii TABLE OF CONTENTS QUESTION PRESENTED ... i JURISDICTION ... 2 CONSTITUTIONAL PROVISIONS ... 2 STATEMENT OF THE CASE ... 3 A. Proceedings Below. ... 4 B. Statement of Facts. ... 5 C. Colorado Supreme Court Opinions. ... 8 SUMMARY OF ARGUMENT ... 9 ARGUMENT AMENDMENT 2 DOES NOT VIOLATE THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT ... 13 A. A State's Allocation of Authority Between Political Subdivisions Should Not Be Disturbed Absent Exceptional Circumstances. ... 14 B. There is No Suspect or Quasi-Suspect Class Issue in this Case. ... 16 *iv C. There is No Fundamental Right for Every Independently Identifiable Group to Unfettered Participation at Every Level of Government. ... 18 1. This Court's Decisions in Hunter v. Erickson and Its Progeny Do Not Support the Fundamental Right Identified by the Colorado Supreme Court. ... 18 2. Amendment 2 Does Not Infringe the Right to Vote or Any Other Recognized Right Relating to Political Participation ... 25 3. The Right Recognized by the Court Below Cannot Be Upheld Under the Accepted Constitutional Analysis Embraced by this Court. ... 28 4. The Rationale of the Decision Below is Sweeping and its Consequences are Devastating. ... 34

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D. Amendment 2 is Subject to, and Readily Satisfies, Rational Basis Review. ... 39 1. Amendment 2 Maintains the Integrity of Civil Rights Laws. ... 41 *v 2. Amendment 2 Enhances Individual Freedoms. ... 43 3. Amendment 2 Achieves Statewide Uniformity and Deters Factionalism ... 47 CONCLUSION ... 49 NOTE: Page vi missing in original document. *vii TABLE OF AUTHORITIES CASES Adams v. Howerton, 486 F. Supp. 1119 (S.D. Cal. 1980) , aff'd, 673 F.2d 1036 (9th Cir.), cert. denied, 458 U.S. 1111 (1982) ... 36 Anderson v. Celebrezze, 460 U.S. 780 (1983) ... 48 Arthur v. City of Toledo, 782 F.2d 565 (6th Cir. 1986) ... 25 Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185 (1971), appeal dismissed, 409 U.S. 810 (1972) ... 36 Beal v. Doe, 432 U.S. 438 (1977) ... 37 Ben-Shalom v. Marsh, 881 F.2d 454 (7th Cir. 1989), cert. denied sub. nom., 494 U.S. 1004 (1990) ... 17 Bernal v. Fainter, 467 U.S. 216 (1984) ... 15 Board of Directors of Rotary International v. Rotary Club of Duarte, 481 U.S. 537 (1987) ... 44 Bob Jones Univ. v. United States, 461 U.S. 574 (1983) ... 41 Bowers v. Hardwick, 478 U.S. 186 (1986) ... 29 *viii Cabell v. Chavez-Salido, 454 U.S. 432 (1982) ... 16

Citizens for Responsible Behavior v. Superior Court, 2 Cal. Rptr. 2d 648 (Cal. App. 4th Dist. 1991) ... 25 City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985) ... 13, 17 City of Eastlake v. Forest City Enterprises, Inc., 426 U.S. 668 (1976) ... 30 City of Springfield v. Kibbe, 480 U.S. 257 (1987) ... 18 Coyle v. Oklahoma, 221 U.S. 559 (1911) ... 15 Crawford v. Los Angeles Bd. of Educ., 458 U.S. 527 (1982) ... 32, 33, 48 Davis v. Bandemer, 478 U.S. 109 (1986) ... 35 Donahue v. Fair Employment & Housing Comm'n, 2 Cal. Rptr.2d 32 (Cal. App. 2d Dist. 1991), review dismissed, 23 Cal. Rptr.2d 591, 859 P.2d 671 (Cal. 1993) ... 44 *ix Dronenburg v. Zech, 741 F.2d 1388 (D.C. Cir. 1984), reh'g denied, 746 F.2d 1579 (D.C. Cir. 1984) ... 32 Eisenstadt v. Baird, 405 U.S. 438 (1972) ... 47 Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati, 838 F. Supp. 1235 (S.D. Ohio 1993), injunction made permanent, 860 F. Supp. 417 (S.D. Ohio 1994), appeal filed, Nos. 94-3855 and 94-3973 (6th Cir. 1994) ... 35 Ginsberg v. New York, 390 U.S. 629 (1968) ... 46 Gordon v. Lance, 403 U.S. 1 (1971) ... 23 Graham v. Richardson, 403 U.S. 365 (1971) ... 17 Grant v. Meyer, 828 F.2d 1446 (10th Cir. 1987), aff'd, 486 U.S. 414 (1988) ... 31 Gregory v. Ashcroft, 501 U.S. 452 (1991) ... 10, 15, 31, 39, 40 Griswold v. Connecticut, 381 U.S. 479 (1965) ... 46

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entation laws. Id. at 9-10. Preventing this sort of intrusion into personal matters of the utmost privacy is a legitimate interest. The choice of household companions -- of whether a person's intellectual or emotional needs' are best met by living with family, friends, professional associates, or others -- involves deeply personal considerations as to the kind and quality of intimate relationships within the home. Village of Belle Terre v. Boraas , 416 U.S. 1, 15 (1974) (Marshall, J., dissenting). Ordinances of the type repealed by Amendment 2 also affect familial privacy and the ability of parents to convey values to their children. This Court has expressly acknowledged that: the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation's history and tradition. *46 It is through the family that we inculcate and pass down many of our most cherished values, moral and cultural. Moore v. City of East Cleveland, 431 U.S. 494, 503-04 [FN32] (1977). The implicit endorsement of homosexuality fostered by laws granting special protections could undermine the efforts of some parents to teach traditional moral values. It is certainly rational for the State to seek to prevent this kind of confusion. FN32. See also Wisconsin v. Yoder, 406 U.S. 205, 213-14, 232 (1972); Ginsberg v. New York , 390 U.S. 629, 639 (1968); Griswold v. Connecticut, 381 U.S. 479, 496 (1965) (Goldberg, J., Warren, C.J., and Brennan, J., concurring); Prince v. Massachusetts, 321 U.S. 158, 166 (1944). The decision of the people of Colorado both to restore and preserve these liberties -- as well as an even more general right of association or non-association which exists in the absence of special protection laws -- is reflective of the time-honored view that [t]hat govern[FN33] ment is best which governs least. Clearly, Amendment 2's restoration and preservation of individual freedom, through removal or prevention of governmental regulation, is a legitimate public purpose. As this Court has recognized,

FN33. Thomas Paine, quoted in G. Seldes, The Great Thoughts 320 (1985); although variously attributed to Thomas Jefferson and Henry David Thoreau. The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. . . . They conferred, as against the Government, the right to be let alone -- the most comprehensive *47 of rights and the right most valued by civilized man. Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting) (quoted with approval in Stanley v. Georgia, 394 U.S. 557, 564 (1969), and Eisenstadt v. Baird, 405 U.S. 438, 453-54 n.10 (1972)). 3. Amendment 2 Achieves Statewide Uniformity and Deters Factionalism. It is advantageous to the State to have uniform civil rights laws, both to promote efficient enforcement, and to maximize individual liberty, including the preservation of traditional social norms. The State also benefits from creating an environment where large employers and property owners may operate under uniform laws, thereby providing greater economic and legal predictability in their affairs. Equally important is the necessity of ensuring that the deeply divisive issue of homosexuality does not serve to seriously fragment Colorado's body politic. Df. Aff. 9 (James Hunter) at 14 (J.A. [FN34] 264-65, v. 18, p. 1341, v. 19, 1349-51). FN34. In addition, Harvard University Government Professor Harvey Mansfield testified that enacting Amendment 2 through the initiative process supported stability and respect for the political process, by giving the people a sense that . . . government is not alien to them, and that they can get together by their own initiative . . . to produce a result that gives them a sense of satisfaction and accomplishment. (J.A. 197-98). *48 Ensuring the stability of a State's political system through combatting unrestrained factionalism, such as here, is certainly a legitimate, indeed compelling, in-

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terest. Storer v. Brown, 415 U.S. 724, 736 (1974) (upholding statutory provisions barring independent candidates from the general election ballot if they had been defeated in a party primary that year, or had been registered with a political party within the past year); Anderson v. Celebrezze, 460 U.S. 780 (1983) (noting the importance of the State's interest in avoiding political fragmentation in the context of elections wholly within state boundaries). Amendment 2 furthers this interest by eliminating city-by-city and county-by-county battles over the political issue of homosexuality and bisexuality. (J.A. 210). Consequently, Amendment 2 serves an important state interest by promoting statewide uniformity on this issue. *** Amendment 2 infringes upon no fundamental right and is amply supported by numerous rational bases. It does GALE A. NORTON [FN*]

not encourage or authorize public or private discrimination in contravention of the Fourteenth Amendment. While a state or local government can grant more protection than that required by the United States Constitution, a state or local government can also rescind that additional protection -- and prohibit its subsequent reextension -- without committing a federal constitutional violation. Crawford v. Los Angeles Bd. of Educ., 458 U.S. at 538-39. Amendment 2 does nothing more. *49 CONCLUSION For the foregoing reasons, the judgment of the Colorado Supreme Court should be reversed. Respectfully submitted this 21st day of April, 1995.

REX E. LEE CARTER G. PHILLIPS Special Assistant Attorneys General 2840 Iroquois Drive Provo, Utah 84604 Telephone: (801) 373-3342

Attorney General of Colorado STEPHEN K. ERKENBRACK Chief Deputy Attorney General TIMOTHY M. TYMKOVICH Solicitor General JOHN DANIEL DAILEY Deputy Attorney General PAUL FARLEY Deputy Attorney General Colorado Department of Law 1525 Sherman Street, 5th Floor Denver, Colorado 80203 Telephone: (303) 866-4500 FN* Counsel of Record

ATTORNEYS FOR PETITIONERS

Roy ROMER, as Governor of the State of Colorado, and the State of Colorado, Petitioners, v. Richard G. EVANS, Angela Romero, Linda Fowler, Paul Brown, Priscilla Inkpen, John Miller, the Boulder Valley School District RE-2, the City and County of Denver, the City

of Boulder, the City of Aspen, and the City Council of Aspen, Respondents. 1995 WL 17008429 (U.S. ) (Appellate Brief ) END OF DOCUMENT

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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

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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 Whereupon, M I C H A E L E. L A M B,

having been first duly sworn/affirmed, was examined and testified as follows: EXAMINATION BY MR. DUGAN: Q. being here. I just want to go over some ground rules of depositions. I know you have done Good morning, Dr. Lamb. Thank you for

depositions before but just to be safe. When I ask a question, just wait until the end and don't speak over me, if you could. Give verbal responses. If you don't understand a

question, which with my mangled syntax can happen at times, please ask me to rephrase it. Is there any reason you can't be deposed today? A. Q. No. If you need a break, just ask me.

Where do you currently teach? A. Q. At the University of Cambridge. How long have you been a teacher, a

professor at Cambridge?

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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. A.

M. Lamb on a compilation of the studies. This one is

designed to focus on one element of that, which is the relationship between the sexual orientation of the mother and the children's adjustment, holding constant whether or not -- or the fact that they are all not in couple circumstances. MR. DUGAN: I will hand out what will

be marked Exhibit 6. (Lamb Exhibit 6, Golombok/Tasker chapter, was marked for identification as of this date.) Dr. Lamb, do you recognize this? Yes. This is a chapter on gay fathers

by Susan Golombok and Fiona Tasker that was included in a book I edited called "The Role of the Father in Child Development." Q. If you could turn to page 327,

specifically I would like to focus right under "Consequences For Child Development." The

authors write, "Studies of children raised by same-sex parents have almost exclusively focused on families headed by lesbian mothers rather than gay fathers."

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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.

M. Lamb Does that fact limit what one can predict about children raised by male, same-sex partners? MR. RIEMAN: Objection to form.

Well, as I said earlier, it's a fact

that there have been more studies that are focused on the adjustment of children raised by lesbians rather than by gay parents. It's a fact

that results of studies that are focused on the children in both of those contexts are similar to one another. And it's a fact that in both

contexts one finds that the adjustment of children is affected not by the sexual orientation or by the family structure but by the family process variables that we talked about earlier this morning. Q. Are the authors right to say that

studies of same-sex parents have almost exclusively focused on families headed by lesbian mothers? MR. RIEMAN: Objection to form.

As I said, it is the case that there

are fewer studies of gay fathers than of lesbian mothers. And so at the time that this was

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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 literature? A.

M. Lamb written, yes, that seems like a reasonable thing to say. Q. A. When was this written? No. 2006?

I would have thought it was

written probably in 2008-ish. Q. If you can turn to page 329? I am

looking at the section "Children Who Live With Gay Fathers." The authors write, "At present

little is known about the psychological development and well-being of the increasing number of children who are being raised by gay fathers, that is, children who live with their gay fathers and have done so from birth or early childhood." Is that a fair statement of the

Well, I think it's what they are --

because this is a chapter focused on gay fathers, they are talking narrowly about that literature. And as I said earlier, it is the fact that there are fewer studies that have looked at children being raised by gay fathers. What this chapter doesn't do to the extent that I have been doing in my statement and

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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. Dr. Lamb? A. Q. A. Yes, I do.

M. Lamb intimate partners and other social figures had better adjusted children again is consistent with a larger body of research on the way in which the family context affect children's adjustment. So as part of that larger body of research, these are interesting and valuable studies that add to this larger, more complete body of evidence. Q. Exhibit 8. (Lamb Exhibit 8, Wainright/Patterson report, was marked for identification as of this date.) Do you recognize this document, I am handing you what will be marked

And what is this? This is one of the reports written by

Jennifer Wainright and Charlotte Patterson that involves, in this case, focusing on the delinquency, victimization and substance abuse of adolescents being raised by lesbians in comparison with a like number of adolescents

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M. Lamb matched on a variety of factors who have been raised by heterosexual parents. Q. If I can direct you to the second

paragraph on the first page, the second sentence of that paragraph, the authors write, "We still have relatively few studies of adolescent offspring of lesbian or gay parents however, and some have advised caution when generalizing the results of research conducted with young children to adolescents." Is it still the case that there are relatively few studies of adolescent offspring of lesbian or gay parents? A. There are fewer studies of adolescents I think that

than there are of younger children.

this statement here is part of a way of underscoring the importance of this research. And it is important research. But there are

several other studies that have looked at adolescent offspring living with same-sex parents. Q. Does the fact that there are, I think

you said, fewer studies on adolescents counsel us to be caution about drawing conclusions about

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M. Lamb adolescents who are raised by same-sex parents? A. Well, I don't think it does because

the results of those fewer studies are consistent with the results of other research that looks at children's adjustment and other research that looks at adolescents and the factors that are associated with their adjustment. Again, I think what's important to underscore is how important it is to look at any set of findings in context. In that context, the

fact that studies like this show that children being raised by same-sex parents are as likely to be well adjusted as children raised by -sorry -- as adolescents raised by heterosexual parents and that when one looks at the correlates of better or worse adjustment, that it's the same factors regardless of sexual orientation. It is the convergence between the findings and the broader body of literature that is really the key thing we want to look at. MR. DUGAN: marked Exhibit 9. (Lamb Exhibit 9, Kurdek article, was marked for identification as of I hand out what will be

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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. Dr. Lamb? A. Q. A. Yes, I do.

M. Lamb this date.) Do you recognize this document,

And what is it? It's a relatively brief summary of

literature that is concerned with the dynamics of gay and lesbian relationships conducted by Larry Kurdek. Q. page 254? If I can direct you to the final page, Professor Kurdek writes at the

beginning, under "Issues for future research," "Future research on gay and lesbian couples needs to address several key issues. One is sampling.

Because most studies have used convenience samples of mostly white and well-educated partners, the extent to which findings generalize to the larger population of gay and lesbian couples is unknown. "Problems with regard to sampling may be eased as specialized populations -- such as couples with civil unions from states with open records -- become identified. research methods: Another issue is

Most studies on gay and

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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.

M. Lamb lesbian couples have used self-report surveys. Future work could address some of the biases associated with self-report data by employing behavioral observations as well as peer or partner ratings." Do you agree with Dr. Kurdek that this has been a limitation in the studies? MR. RIEMAN: Objection to form.

Well, he's certainly correct in noting

these issues in the literature on gay and lesbian couples, particularly research of the sort that he has done, which has painstakingly, and I think very usefully, shown that the dynamics of relationships in gay and lesbian couples are characterized by the same dimensions as those in heterosexual families and that clearly elaborating on that and doing more research may be helpful for those who are interested in further understanding couple dynamics. I do want to underscore that this, his research, is focused on gay and lesbian couples, mostly couples without children, and that these studies don't look at the relationship between the couple variables and the children's

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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. adjustment.

M. Lamb They are nevertheless very useful

because they do show that the research on the dynamics of those couples is subject to and has the same sorts of correlates and variables as do heterosexual couples, both those that are married as well as those who are co-habiting. Q. Is it fair to conclude that you are a

supporter of gay marriage? A. Q. Yes. If there were no studies about gay

parenting, would you still be in favor of -studies that you say demonstrate well-adjusted children, would you still support gay marriage? MR. RIEMAN: Objection to form.

Well, I think that's a hard question

to answer in that it sort of requires me to ignore the research that we do have. I mean, I

have come to support gay marriage because I have spent 35 or so years studying the factors that affect children's adjustment. And most of that

research, of course, is research that involves looking at children with opposite-sex orientation on the part of their parents. There is an increasing body of

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M. Lamb in other nontraditional family circumstances likewise have less traditional, less conventional attitudes. So, for example, you would find that there is some evidence that children being raised by, say, women who are employed outside the home have less sex-stereotyped attitudes than children whose mothers are not employed. And you find

similar sorts of patterns across different types of nontraditional family structures. Q. Based on the science, could anyone

rationally believe children's well-being is better promoted by being raised by a heterosexual couple as opposed to a same-sex couple? A. No, I don't think so. MR. RIEMAN: (Time noted: No further questions. 12:04 p.m.)

________________________ Michael E. Lamb, Ph.D. Subscribed and sworn to before me this day of , 2011. _________________________ Notary Public

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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 _________________________________ DEBRA STEVENS, RPR-CRR IN WITNESS WHEREOF, I have hereunto set my hand this ____ day of ___________________, 2011. I, DEBRA STEVENS, a Registered Professional Shorthand Reporter and notary public, within and for the State of New York, do hereby certify: That MICHAEL E. LAMB, the witness whose examination is hereinbefore set forth, was first duly sworn by me, and that transcript of said testimony is a true record of the testimony given by said witness. I further certify that I am not related to any of the parties to this action by blood or marriage, and that I am in no way interested in the outcome of this matter. C E R T I F I C A T I O N

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