Parents Involved in Community Schools v. Seattle School District No. 1 Brief for Amici Curiae

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12-2335 (L)
No. 12-2435 (Con)

IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

EDITH SCHLAIN WINDSOR, In her Official capacity as 
Executor of ihe estate of Thea Clara Spyer,

Plaintiff-Appellee,

v.

BIPARTISAN LEGAL ADVISORY GROUP OF 
THE UNITED STATES HOUSE OF REPRESENTATIVES,

Intervenor-Defendant-Appellant,

UNITED STATES OF AMERICA,
Defendant-Appellant.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE SOUTHERN DISTRICT OF NEW YORK

BRIEF OF AMICUS CURIAE
NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC. 

IN SUPPORT OF PLAINTIFF-APPELLEE AND AFFIRMANCE

NAACP Legal Defense &
Educational Fund, Inc .

Debo P. Adegbile, Acting Director-Counsel 
Counsel o f Record 

Elise C. Boddie
Rachel M. Kleinman Joshua Civin
Ria A. Tabacco 1444 I Street, NW 10th Floor
99 Hudson Street, 16th Floor Washington, DC 20005
New York, NY 10013 (202) 682-1300
(212) 965-2200



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CORPORATE DISCLOSURE STATEMENT

Pursuant to Federal Rule of Appellate Procedure 29(c)(1), amicus curiae 

NAACP Legal Defense and Educational Fund, Inc., through undersigned counsel, 

certifies that it is a non-profit corporation with no parent companies, subsidiaries, 

or affiliates that have issued shares to the public.

Dated: September 7, 2012 /s/ Debo P. Adegbile 
Debo P. Adegbile 
NAACP Legal Defense & 

Educational Fund, Inc.
99 Hudson Street, 16th Floor
New York, NY 10013
(tel) 212-965-2234
(fax) 212-226-7592
(e-mail) dadegbile@naacpldf.org

Attorney for Amicus Curiae

l

mailto:dadegbile@naacpldf.org


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TABLE OF CONTENTS

CORPORATE DISCLOSURE STATEMENT...........................................................i

TABLE OF AUTHORITIES..................................................................................... iii

INTEREST OF AMICUS CURIAE............................................................................1

SUMMARY OF THE ARGUMENT......................................................................... 2

ARGUMENT................................................................................................................ 3

I. An essential function of equal protection law is to guard against
government action that subordinates historically marginalized groups........ 3

II. DOMA, which relegates gays and lesbians to a subordinate social
status, should be subject to heightened scrutiny.............................................. 8

A. DOMA’s clear purpose is to impose significant burdens on gays
and lesbians who are legally married under state law.......................  11

B. DOMA imposes significant burdens on gays and lesbians.................14

III. The role of the courts is to safeguard the rights of historically
subordinated groups by applying heightened scrutiny to laws, like 
DOMA, that disadvantage them as a class.....................................................15

CONCLUSION........................................................................................................... 17

CERTIFICATE OF COMPLIANCE.........................................................................18

CERTIFICATE OF SERVICE.................................................................................. 19

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TABLE OF AUTHORITIES

Cases

Anderson v. King County, 138 P.3d 963 (Wash. 2006)............................................11

Baehr v. Lewin, 852 P.2d 44 (Haw. 1993)................................................................ 12

Bowen v. Gilliard, 483 U.S. 587 (1987)....................................................................10

Brown v. Board o f  Education, 347 U.S. 483 (1954).....................................  1, 3, 5, 6

City o f Cleburne, Texas v. Cleburne Living Center, 473 U.S. 432
(1985)..............................................................................................................  10, 15

Conaway v. Deane, 932 A.2d 571 (Md. 2007)....................................................  1,11

Craig v. Boren, 429 U.S. 190 (1976)..........................................................................2

Frontiero v. Richardson, 411 U.S. 677 (1973)..................................................  13, 15

Golinski v. Office o f Personnel Management, 824 F. Supp. 2d 968
(N.D. Cal. 2012).....................................................................................................10

Hernandez v. Texas, 347 U.S. 475 (1954)..............................................................4, 7

Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006)...................................................... 1

In re Marriage Cases, 183 P.3d 384 (Cal. 2008)...................................................... 1

Kerrigan v. Commissioner o f Public Health, 957 A.2d 407 (Conn.
2008)......................................................................................................................  11

Lawrence v. Texas, 539 U.S. 558 (2003)....................................................................... 9

Loving v. Virginia, 388 U.S. 1 (1967)............................................................... passim

McLaughlin v. Florida, 379 U.S. 184 (1964)........................................................  1, 6

McLaurin v. Oklahoma State Regents for Higher Education, 339 U.S.
637 (1950)............................................................................................................ 1,4

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Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938).................................  1, 4, 6

Northwest Austin Municipal Utility District Number One v. Holder,
557 U.S. 193 (2009)................................................................................................ 1

Parents Involved in Community Schools v. Seattle School District No.
1, 551 U.S. 701 (2007).......................................................................................... 3

Pedersen v. Office o f Personnel Management, No. 3:10-cv-1750, 2012
WL 3113883 (D. Conn. July 31, 2012)..............................................8, 10, 14, 15

Perry v. Schwarzenegger, 591 F.3d 1147 (9th Cir. 2009)......................................... 1

Plessy v. Ferguson, 163 U.S. 537 (1896)...................................................... 4, 15, 16

Plyler v. Doe, 457 U.S. 202 (1982)...........................................................................10

Romer v. Evans, 517 U.S. 620 (1996).................................................................. 1, 11

Sipuel v. Board o f Regents o f the University o f Oklahoma, 332 U.S.
631 (1948)............................................................................................................ 1,4

Strauder v. West Virginia, 100 U.S. 303 (1880)....................................................  3, 4

Strauss v. Horton, 207 P.3d 48 (Cal. 2009)............................................................ 1

Sweatt v. Painter, 339 U.S. 629 (1950).................................................................. 1,5

United States v. Carolene Products Co., 304 U.S. 144 (1938)................................ 8

United States v. Virginia, 518 U.S. 515 (1996)...............................................  2, 7, 13

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

Yick Wo v. Hopkins, 118 U.S. 356 (1886)................................................................ 6

Statutes

5 U.S.C. § 8901 etseq............................................................................................... 14

IV



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26 U.S.C. § 2056(a).....................................................................................................15

29 U.S.C. § 2601 et seq............................................................................................... 14

42 U.S.C. § 301 et seq..................................................................................................14

Defense of Marriage Act, Pub. L. No. 104-199, § 3(a), 110 Stat. 2419
(1996)........................................................................................................................ 9

Legislative Materials

H.R. Rep. No. 104-664 (1996)............................................................................  12, 14

Other Authorities

Jane S. Schacter, Ely at the Altar: Political Process Theory Through
the Lens o f the Marriage Debate, 109 Mich. L. Rev. 1363 (2011)....................11

Letter from Eric H. Holder, Jr., Attorney General, to John A. Boehner,
Speaker, U.S. House of Representatives (Feb. 23, 2011)............................  10, 13

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INTEREST OF AMICUS CURIAE1

The NAACP Legal Defense and Educational Fund, Inc. (LDF) is a non­

profit legal organization established under New York law. For more than seven 

decades, LDF has fought to enforce the guarantees of the United States 

Constitution against discrimination. See, e.g., Nw. Austin Mun. Util. Dist. No. One 

v. Holder, 557 U.S. 193 (2009); Brown v. Bd. o f Educ., 347 U.S. 483 (1954); 

McLciurin v. Okla. State Regents for Higher Educ., 339 U.S. 637 (1950); Sweatt v. 

Painter, 339 U.S. 629 (1950); Sipuel v. Bd. o f Regents ofUniv. o f Okla., 332 U.S. 

631 (1948); Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938). LDF has 

sought to eradicate barriers to the full and equal enjoyment of social and political 

rights, including in the context of partner or spousal relationships, see, e.g., Loving 

v. Virginia, 388 U.S. 1 (1967); McLaughlin v. Florida, 379 U.S. 184 (1964), and 

has participated as amicus curiae in cases across the nation that affect the rights of 

gay people, including Romer v. Evans, 517 U.S. 620 (1996); Perry v. 

Schwarzenegger, 591 F.3d 1147 (9th Cir. 2009); Strauss v. Horton, 207 P.3d 48 

(Cal. 2009); In re Marriage Cases, 183 P.3d 384 (Cal. 2008); Conaway v. Deane, 

932 A.2d 571 (Md. 2007); and Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006).

1 This brief is filed with the consent of all parties. Pursuant to Federal Rule of 
Appellate Procedure 29(c)(5), counsel for amicus states that no counsel for a party 
authored this brief in whole or in part, and that no person other than amicus, its 
members, or its counsel made a monetary contribution to the preparation or 
submission of this brief.

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Consistent with its opposition to all forms of discrimination, LDF has a strong 

interest in the fair application of the Fifth and Fourteenth Amendments to the 

United States Constitution, which provide important protections for all Americans, 

and submits that its experience and knowledge will assist the court in this case.

SUMMARY OF THE ARGUMENT 

A critical function of heightened scrutiny under equal protection law is to 

guard against government action that intentionally relegates individual members of 

historically subordinated groups to an inferior social status. See, e.g., Loving v. 

Virginia, 388 U.S. 1, 9 (1967) (describing state’s “heavy burden” in justifying law 

barring interracial marriage). Over time, courts have expanded the application of 

heightened scrutiny to various groups for different reasons. See, e.g., Craig v. 

Boren, 429 U.S. 190, 202 n.14 (1976) (suggesting that “social stereotypes” about 

“‘reckless’ young men” informed adoption of law that limited ability of young 

males, but not their female counterparts, to purchase alcohol). But this anti­

subordination function—which rejects classifications that “create or perpetuate the 

legal, social, and economic inferiority” of a group that has been subjected to 

sustained discrimination, see United States v. Virginia, 518 U.S. 515, 534 (1996) 

[hereinafter VML]—lies at the heart of heightened scrutiny, and should apply with 

the same force against laws, such as the Defense of Marriage Act (DOMA), that 

unquestionably disadvantage gays and lesbians. The application of heightened

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scrutiny has been essential to striking down government classifications that 

categorically exclude individuals, based on their status as members of a particular 

group, from equal participation in our country’s social and political community 

and, accordingly, is essential to our forward progress as a nation. C f Parents 

Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 787 (2007) 

(Kennedy, J., concurring in part and concurring in the judgment) (“Our Nation 

from the inception has sought to preserve and expand the promise of liberty and 

equality on which it was founded. Today we enjoy a society that is remarkable in 

its openness and opportunity. Yet our tradition is to go beyond present 

achievements, however significant, and to recognize and confront the flaws and 

injustices that remain.”).

ARGUMENT

I. An essential function of equal protection law is to guard against
government action that subordinates historically marginalized groups.

A seminal role of equal protection law is to guard against government action 

that promotes or reinforces social hierarchy to the specific disadvantage of groups 

that have long been the subject of discrimination. The courts’ focus on 

government action that perpetuates subordination is most apparent in early equal 

protection cases leading up to and following Brown v. Board o f Education, 347 

U.S. 483 (1954). These cases rejected state laws that subordinated African 

Americans as a class based on their presumed “inferiority.” Strauder v. West

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Virginia pointedly articulated this view of equal protection, striking down a state 

law that limited jury service to certain “white male” citizens. 100 U.S. 303, 305, 

310 (1880); see also Hernandez v. Texas, 347 U.S. 475 (1954) (striking down state 

law that excluded persons of Mexican descent from jury service). The Strauder 

Court objected that the purpose of the law was to “single[] out and expressly 

den[y] [African Americans] by a statute all right to participate in the administration 

of the law, as jurors, because of their color, though they are citizens, and may be in 

other respects fully qualified.” 100 U.S. at 308. In its categorical exclusion of 

African Americans from jury service, the Court observed that the state law “affixed 

. . .  an assertion of their inferiority, and a stimulant to that race prejudice which is 

an impediment to securing to individuals of the race that equal justice which the 

law aims to secure to all others.” Id. The Court focused on the demeaning and 

stigmatizing aspects of the law, which functioned “practically [as] a brand upon 

[African Americans]” and, in so doing, codified their subordinate status. Id.

In the years before Brown v. Board o f Education, LDF successfully brought 

a series of higher education cases to dismantle the “separate but equal” doctrine, 

established under Plessy v. Ferguson, 163 U.S. 537 (1896), which consigned 

African Americans, by law, to an inferior social position. See, e.g., McLaurin v. 

Okla. State Regents for Higher Educ., 339 U.S. 637 (1950); Sipuel v. Bd. o f 

Regents o f Univ. o f  Okla., 332 U.S. 631 (1948) (per curiam); Missouri ex rel.

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Gaines v. Canada, 305 U.S. 337 (1938). In Sweatt v. Painter, for example, the 

Supreme Court in 1950 mandated that the University of Texas Law School (UT) 

admit Heman Sweatt, who had been rejected based solely on his “Negro” status, 

notwithstanding that the state had created a separate law school specifically for 

African Americans. 339 U.S. 629, 631 (1950). Reasoning that Sweatt’s exclusion 

from UT denied him the “standing in the community, traditions and prestige” that 

were customarily accorded white matriculants, id. at 634, the Court rejected UT’s 

argument that the education offered Sweatt at the newly-created black school was 

“substantially equal.” Id. This unmooring of “separate but equal” reflected the 

Court’s evolving view that the doctrine was simply a subterfuge for a system that 

had both the purpose and effect of creating and entrenching a racial caste system.

The Court’s reasoning in Sweatt, taken together with the unmistakable 

impact of the segregation doctrine on the lives of school children, and indeed on 

the nation, crystallized fully in Brown v. Board o f Education. Perhaps more than 

any other case, Brown points to the role that equal protection law has played in 

rooting out government action that relegates historically marginalized groups to an 

inferior social status. Rejecting the systemic subordination of African-American 

children in public education under the doctrine of “separate but equal,” the 

Supreme Court concluded that forced racial separation by law “denot[es] the 

inferiority of the negro group” and “generates a feeling of inferiority as to their

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status in the community that may affect their hearts and minds in a way unlikely 

ever to be undone.” 347 U.S. at 494. The Court’s condemnation of de jure 

segregation and the notion that “separate” could ever be “equal” cemented its 

rejection of laws that purposefully perpetuated racial subordination.

Similarly, in McLaughlin v. Florida, the Court applied heightened scrutiny 

to strike down a state law that penalized the cohabitation of interracial couples. 

379 U.S. 184 (1964). While the Court accepted as valid the state’s interest in 

punishing “promiscuity,” id. at 193, it concluded that racial classifications that 

were designed to “single[] out the promiscuous interracial couple for special 

statutory treatment,” id. at 196, “bear a far heavier burden of justification,” id. at 

194, and indicated its presumptive suspicion of “invidious” laws that “‘select[] a 

particular race or nationality for oppressive treatment,”’ id. (citing Gaines, 305 

U.S. 337; Yick Wo v. Hopkins, 118 U.S. 356 (1886)). While not stating so 

explicitly, the Court’s analysis reflected its underlying concern that the criminal 

penalty against interracial cohabitation furthered a system in which African 

Americans—and anyone who associated with them—were deemed to be socially 

inferior.

Loving v. Virginia, which followed McLaughlin, also illustrates this point 

and has particular relevance here. In Loving, the Supreme Court struck down 

Virginia’s “comprehensive statutory scheme aimed at prohibiting and punishing

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interracial marriages.” 388 U.S. at 4. Virginia argued that the Court should “defer 

to the wisdom of the state legislature in adopting its policy of discouraging 

interracial marriages” based on rational basis review. Id. at 8.

Importantly, the Court rejected that argument, finding that the apparent 

purpose of the statute was to “maintain White Supremacy.” Id. at 11. As in its 

earlier decisions, the Court’s analysis reflected its underlying concern with state 

measures that create and/or entrench the social subordination of groups that have 

been the subject of persistent discrimination. Contrary to the deference that the 

state urged its legislative judgment was owed, the Court concluded that Virginia 

failed to satisfy its “very heavy burden of justification which the Fourteenth 

Amendment has traditionally required of state statutes drawn according to race.” 

Id. at 9.

Loving, like Strauder, Sweatt, Brown, and McLaughlin, illustrates the 

Supreme Court’s repudiation under equal protection law of measures that are 

intended to foster a social hierarchy to the disadvantage of historically 

marginalized groups. Although equal protection law has evolved over time, this 

function lies at its core. Cf. VM1, 518 U.S. at 534 (holding that classifications may 

be appropriate to compensate women for past economic suffering but “may not be 

used, as they once were, to create or perpetuate the legal, social, and economic 

inferiority of women” (internal citations omitted)); Hernandez, 347 U.S. at 478

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(“[C]ommunity prejudices are not static, and from time to time other differences 

from the community norm may define other groups which need the same 

protection.”); United States v. Carotene Prods. Co., 304 U.S. 144, 152 n.4 (1938) 

(suggesting that the role of the courts is to safeguard “discrete and insular 

minorities” against discrimination by state actors).

Of course, the nature of discrimination against gays and lesbians differs 

fundamentally from de jure racial segregation. But DOMA and other laws that 

purposefully infringe on the rights of gay people are analogous to the racial caste 

system effectuated under “separate but equal” in an important respect: they create 

and perpetuate a social hierarchy that is premised on the superiority of one group 

over another. DOMA’s denial of marital benefits under federal law to gays and 

lesbians subordinates them within the institution of marriage and, like early laws 

that were designed to oppress African Americans, relegates them to an unequal and 

inferior status as a group. This is contrary to the core purpose of equal protection.

II. DOMA, which relegates gays and lesbians to a subordinate social status,
should be subject to heightened scrutiny.

By virtually any measure, gays and lesbians have been subjected to systemic 

discrimination throughout our nation’s history, resulting in their ongoing 

subordination as a class. And DOMA’s express purpose is to create and perpetuate 

a hierarchy that disadvantages gay people based on their sexual orientation. See 

Pedersen v. Office o f  Personnel Mgmt., No. 3:10-cv-1750, 2012 WL 31 13883, at

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*1 (D. Conn. July 31, 2012). Section 3 of DOMA defines “marriage” as a “legal 

union between one man and one woman,” and it defines “spouse” as “a person of 

the opposite sex who is a husband or a wife” for the purpose of all federal laws and 

regulations. Defense of Marriage Act, Pub. L. No. 104-199, § 3(a), 110 Stat. 2419 

(1996) (codified at 1 U.S.C. § 7). DOMA, therefore, expressly denies marital 

benefits under federal law to gays and lesbians who are legally married under state 

law, while extending these same benefits to married heterosexual couples. See id. 

By categorically excluding gay people from the federal protections and obligations 

that come with marriage, DOMA treats gays and lesbians as legally and socially 

inferior. This exclusion—which is premised on stereotypes regarding the fitness of 

gay and lesbian partnerships, see Amicus Br. of American College of Pediatricians 

4-10, and moral condemnation of gay people more generally— is both stigmatizing 

and demeaning and perpetuates the historical discrimination that gay people have 

long suffered as a group. C f Lawrence v. Texas, 539 U.S. 558, 575-76 (2003) 

(observing dignity harms of state law that targets same-sex sodomy but not 

sodomy between people of different sexes). This scheme— like any other that 

demeans and denigrates an entire class of people—should be subject to heightened 

scrutiny, not rational basis.

To determine whether a particular classification should be subjected to 

heightened scrutiny, courts have considered the following four factors: ‘“ (1) the

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history of invidious discrimination against the class burdened by the legislation; (2) 

whether the characteristics that distinguish the class indicate a typical class 

member’s ability to contribute to society; (3) whether the distinguishing 

characteristics are “immutable” or beyond the class members’ control; and (4) the 

political power of the subject class.’” Pedersen, 2012 WL 3113883, at *13 

(quoting Golinski v. Office o f Personnel Mgmt., 824 F. Supp. 2d 968, 983 (N.D. 

Cal. 2012)); Letter from Eric H. Holder, Jr., Att’y Gen., to John A. Boehner, 

Speaker, U.S. House of Rep., at 2 (Feb. 23, 2011) [hereinafter Holder Letter] 

(citing Bowen v. Gilliard, 483 U.S. 587, 602-03 (1987); City o f Cleburne, Tex. v. 

Cleburne Living Ctr., 473 U.S. 432, 441-42 (1985)). Any one of these factors, 

standing alone, indicates that the classification at issue is “more likely than others 

to reflect deep-seated prejudice rather than legislative rationality in pursuit of some 

legitimate objective.” Plyler v. Doe, 457 U.S. 202, 216 n.14 (1982).2

2 A faithful application of the four-factor test to gays and lesbians reveals that 
laws which burden them as a group should be subject to heightened scrutiny. 
Courts have acknowledged a long history of discrimination against gays and 
lesbians. See Pedersen, 2012 WL 3113883, at *20 (listing cases in which Courts 
have recognized the history of discrimination against gays and lesbians in this 
country). As noted by Attorney General Eric H. Holder, Jr. in his letter setting 
forth the United States’ decision to cease defending the constitutionality of DOMA 
and advocating for heightened scrutiny for classifications that burden gays and 
lesbians: “[Tjhere is, regrettably, a significant history of purposeful discrimination 
against gay and lesbian people, by governmental as well as private entities, based 
on prejudice and stereotypes that continue to have ramifications today.” Holder 
Letter at 2. And gays and lesbians as a class lack political power. Section 3 is but 
one of numerous laws that disadvantage gays and lesbians. Three-fifths of the

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A. DOMA’s clear purpose is to impose significant burdens on gays 
and lesbians who are legally married under state law.

DOMA does not just incidentally burden gays and lesbians; it was explicitly

fashioned to ensure that legally married gay and lesbian couples would not be

states have amended their constitutions to prohibit gay and lesbian people from 
marrying. (Segura Affi, JA-594.) Gays and lesbians also lack federal protection 
from discrimination in employment, housing, and public accommodations. In 
more than half of the 50 states, gay and lesbian people lack any legal protection 
from discrimination in private sector employment (29 states), housing (30 states), 
and public accommodations (29 states). (Chauncey Affi, JA-557; Segura Affi, JA- 
591.) Cf. Romer v. Evans, 517 U.S. 620, 631 (1996) (“Homosexuals are forbidden 
the safeguards that others enjoy or may seek without constraint. . . . These are 
protections taken for granted by most people either because they already have them 
or do not need them; these are protections against exclusion from an almost 
limitless number of transactions and endeavors that constitute ordinary civic life in 
a free society.”).

Despite the political realities described above, courts have come to widely 
divergent conclusions in their assessment of the political power of gays and 
lesbians. While some courts have emphasized the lack of political strength that 
gays and lesbians possess to end discrimination through the traditional democratic 
process, see, e.g., Kerrigan v. Comm’r o f Pub. Health, 957 A.2d 407, 444 (Conn. 
2008); accord Varnum v. Brien, 763 N.W.2d 862, 896 (Iowa 2009), other courts 
have concluded that the success of gay rights advocates in securing the passage of 
antidiscrimination legislation bars a finding of political powerlessness, see 
Conaway v. Deane, 932 A.2d 571, 611-12 (Md. 2007); Anderson v. King Cnty., 
138 P.3d 963, 974-75 (Wash. 2006) (en banc). This latter conclusion is illogical. 
“It hardly follows that a group is politically ‘powerful’ because it has achieved 
some success in securing legal remedies against some formal and informal 
discrimination that has long burdened the group.” Jane S. Schacter, Ely at the 
Altar: Political Process Theory Through the Lens o f the Marriage Debate, 109 
Mich. L. Rev. 1363, 1393 (2011). Any meaningful analysis of political power 
must consider the history of discrimination that led to the need for 
antidiscrimination legislation in the first place. Under such an analysis there can 
be no question that gays and lesbians lack political power.

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afforded the same status and benefits of federal law as heterosexual married 

couples.

As noted by the District Court, DOMA was passed in large measure in 

response to the Hawaii Supreme Court’s decision in Baehr v. Lewin, 852 P.2d 44 

(Haw. 1993), which suggested that the state’s ban on same-sex marriages likely 

violated the equal rights amendment to the Hawaii Constitution. H.R. Rep. No. 

104-664, at 2 (1996) [hereinafter House Report]. The House Report on DOMA 

referred to the Baehr decision and described it as being part of an “orchestrated 

legal assault being waged against traditional heterosexual marriage by gay rights 

groups and their lawyers.” Id. at 2-3. The House Report explicitly identified 

“defending traditional notions of morality” as one of four governmental interests 

advanced by DOMA: “Civil laws that permit only heterosexual marriage reflect 

and honor a collective moral judgment about human sexuality. This judgment 

entails both moral disapproval of homosexuality, and a moral conviction that 

heterosexuality better comports with traditional (especially Judeo-Christian) 

morality.” Id. at 12, 15-16. The House Report goes on to state that “civil society 

has an interest in maintaining and protecting the institution of heterosexual 

marriage because it has a deep and abiding interest in encouraging responsible 

procreation and child-rearing. Simply put, government has an interest in marriage 

because it has an interest in children.” Id. at 13.

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This kind of targeted response, and its explicit legislative record, makes 

plain that Section 3 of DOMA was motivated by disapproval of gay and lesbian 

people and gay marriage, based primarily on the belief that gays and lesbians are 

immoral and on an inaccurate stereotype that they are unfit parents. This moral 

disapproval of gay and lesbian families, on which DOMA was overtly premised, is 

“precisely the kind of stereotype-based thinking” that cannot form the basis of our 

laws and which ought to receive a heightened degree of scrutiny from the court. 

See Holder Letter at 4 (“[T]he legislative record underlying DOMA’s passage . . . 

contains numerous expressions containing moral disapproval of gays and lesbians 

and their intimate family relationships—precisely the kind of stereotype-based 

thinking and animus the Equal Protection Clause is designed to protect against.”). 

Indeed, laws like DOMA that are based on and designed to perpetuate harmful 

stereotypes have historically been scrutinized closely by the courts in part because 

of the dangers that such stereotypes may entrench prejudice against groups that 

have been the target of persistent discrimination. See VMI, 518 U.S. at 533 

(classifications based on sex “must not rely on overbroad generalizations about the 

different talents, capacities, or preferences of males and females”); Frontiero v. 

Richardson, 411 U.S. 677, 685 (1973) (plurality opinion) (observing that through 

the operation of historical stereotyping “our statute books gradually became laden 

with gross, stereotyped distinctions between the sexes”).

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B. DOMA imposes significant burdens on gays and lesbians.

In defining marriage as between a man and a woman only, Section 3 affects 

“myriad federal laws and regulations” as applied to gay and lesbian people who are 

legally married under state law. Pedersen, 2012 WL 3113883, at *2; see also H.R. 

Rep. No. 104-664, at 10. The practical effects of this restricted federal definition 

of marriage are vast. The U.S. District Court for the District of Connecticut 

estimated that Section 3 affects “at least 1,138 federal laws and regulations and . . . 

deprive[s] an estimated 100,000 legally married same-sex couples of the benefits 

afforded to married couples under such federal laws and regulations.” Pedersen, 

2012 WL 3113883, at *2; see also H.R. Rep. No. 104-664, at 10-11.

For example, Section 3 curtails the ability of gay and lesbian people who are 

legally married under state law to obtain health insurance as spouses of federal 

employees, see Federal Employees Health Benefits Program, 5 U.S.C. § 8901 et 

seq.; Pedersen, 2012 WL 3113883, at *2, 5, 7, to receive Social Security benefits 

payable to a surviving spouse on the death of the other spouse, see Social Security 

Act, 42 U.S.C. § 301 et seq.; Pedersen, 2012 WL 3113883, at *3, 5, and to take 

leave to care for an ill spouse, see Family and Medical Leave Act, 29 U.S.C. 

§ 2601 et seq.; Pedersen, 2012 WL 3113883, at *3, 6; H.R. Rep. No. 104-664, at 

11. See generally Pedersen, 2012 WL 3113883, at *2-3, 5-7. As a result of 

Section 3, while married heterosexuals may file joint federal income tax returns,

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married gays and lesbians may not. See id. at *6-7. And as was the case here, 

Section 3 requires gays and lesbians to pay federal estate tax on the estate of their 

deceased spouses— in this case, a penalty of $363,053—while a person in a 

heterosexual marriage would qualify for an unlimited marital tax deduction. See 

26 U.S.C. § 2056(a).

III. The role of the courts is to safeguard the rights of historically
subordinated groups by applying heightened scrutiny to laws, like
DOMA, that disadvantage them as a class.

DOMA puts gays and lesbians who choose to marry on a separate, unequal, 

and lesser footing than married heterosexuals and, therefore, subordinates gay 

people as a class. Cf. Plessy, 163 U.S. at 559-60 (Harlan, J., dissenting). First, by 

denying federal benefits to legally married gay and lesbian couples, which are 

granted to otherwise similarly situated heterosexual couples, DOMA codifies a 

social hierarchy based on sexual orientation that has destructive social and 

economic consequences. Second, DOMA promotes harmful and inaccurate 

stereotypes of gays and lesbians as immoral and as unfit parents in ways that 

reinforce their status as a lesser class. Cf. Cleburne, 473 U.S. at 440 (observing 

that classifications based on race, alienage, or national origin “are deemed to 

reflect prejudice and antipathy— a view that those in the burdened class are not as 

worthy or deserving as others”); Frontiero, 411 U.S. at 686-87 (plurality opinion) 

(statutory distinctions between the sexes can “have the effect of invidiously

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relegating the entire class of females to inferior legal status without regard to the 

actual capabilities of its individual members”); Loving, 388 U.S. at 11 (concluding 

that purpose of anti-miscegenation law is to maintain white supremacy); Plessy, 

163 U.S. at 560 (Harlan, J., dissenting) (noting that the “real meaning” of the law 

was “that colored citizens are so inferior and degraded that they cannot be allowed 

to sit in public coaches occupied by white citizens”).

In every sense, DOMA demeans and stigmatizes gays and lesbians generally 

and consigns married gay men and lesbians in particular, by operation of law, to an 

inferior status. Consistent with the core function of equal protection law, the 

application of heightened scrutiny to DOMA is crucial, even assuming that it could 

not pass constitutional muster under a much more relaxed standard of review. 

Heightened scrutiny locates in the judiciary the responsibility of forcing society to 

reexamine assumptions that are rooted in animus, bigotry, and social stereotypes 

that in turn entrench social caste. The application of heightened scrutiny to 

degrading and oppressive laws has been instrumental in pushing past 

discriminatory barriers of all kinds by signaling that such laws should have no 

place in our society. More searching judicial review is critical to advancement of 

civil rights for all, and to our progress as a nation.

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CONCLUSION

For the foregoing reasons, as well as those outlined by Windsor as Appellee, 

the judgment of the district court should be affirmed on the alternative grounds that 

Section 3 of DOMA is unconstitutional under heightened scrutiny.

Dated: September 7, 2012 Respectfully submitted,

NAACP LEGAL DEFENSE & 
EDUCATIONAL FUND, INC.

By:_ /s/ Debo P. Adegbile________
Debo P. Adegbile, Acting Director-Counsel 

Counsel o f Record 
Elise C. Boddie 
Rachel M. Kleinman 
Ria A. Tabacco 
99 Hudson Street, 16th Floor 
New York, NY 10013 
(tel) 212-965-2200 
(fax) 212-226-7592

Joshua Civin
1444 I Street, NW, 10th Floor 
Washington, DC 20005

Attorneys for Amicus Curiae

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CERTIFICATE OF COMPLIANCE
WITH TYPE-VOLUME LIMITATION, TYPEFACE REQUIREMENTS, 

AND TYPE STYLE REQUIREMENTS

Pursuant to Fed. R. App. P. 32(a)(7)(C)(i), I hereby certify that:

1. This brief complies with the type-volume limitations of Fed. R. App. P. 

32(a)(7)(B), because this brief contains 4,167 words, excluding the parts of the 

brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

2. This brief complies with the typeface requirements of Fed. R. App. P. 

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this 

brief has been prepared in a proportionally spaced typeface using Microsoft Office 

Word 2003 in Times New Roman 14-point font.

Dated: September 7, 2012 /s/ Debo P. Adesbile
Debo P. Adegbile 
NAACP Legal Defense & 

Educational Fund, Inc.
99 Hudson Street, 16th Floor
New York, NY 10013
(tel) 212-965-2234
(fax) 212-226-7592
(e-mail) dadegbile@naacpldf.org

Attorney for Amicus Curiae

18

mailto:dadegbile@naacpldf.org


Case: 12-2335 Document: 234 Page: 25 09/07/2012 714119 25

CERTIFICATE OF SERVICE

I certify that, on September 7, 2012, pursuant to Local Rule 25.1(c)(1), I 

electronically filed the foregoing Brief of Amicus Curiae NAACP Legal Defense 

& Educational Fund, Inc. in Support of Plaintiff-Appellee and Affirmance with the 

Clerk of the Court for the United States Court of Appeals for the Second Circuit by 

using the appellate CM/ECF system. I further certify that all participants in this 

case are registered CM/ECF users and that service will be accomplished by the 

appellate CM/ECF system.

I further certify that, pursuant to Local Rule 31.1, I caused six paper copies 

of the brief to be delivered by hand to the Clerk of the Court on September 7, 2012.

/s/ Debo P. Adegbile 
Debo P. Adegbile 
NAACP Legal Defense & 

Educational Fund, Inc.
99 Hudson Street, 16th Floor
New York, NY 10013
(tel) 212-965-2200
(fax) 212-226-7592
(e-mail) dadegbile@naacpldf.org

Attorney for Amicus Curiae

19

mailto:dadegbile@naacpldf.org