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Paul D. Clement (DC Bar 433215)

[email protected]

H. Christopher Bartolomucci (DC Bar 453423)[email protected]

Conor B. Dugan (DC Bar 1006458)

[email protected] J. Nelson (DC Bar 1001696)

[email protected]

BANCROFT PLLC

1919 M Street, N.W.Suite 470

Washington, D.C. 20036

202-234-0090 (telephone)

202-234-2806 (facsimile)

Of Counsel:

Kerry W. Kircher, General Counsel (DC Bar 386816)

[email protected]

William Pittard, Deputy General Counsel (DC Bar 482949)[email protected]

Christine Davenport, Senior Assistant Counsel (NJ Bar 043682000)[email protected]

Kirsten W. Konar, Assistant Counsel (DC Bar 979176)[email protected]

Todd B. Tatelman, Assistant Counsel (VA Bar 66008)

[email protected] Beth Walker, Assistant Counsel (DC Bar 501033)

[email protected]

OFFICE OF GENERAL COUNSEL,

U.S. HOUSE OF REPRESENTATIVES

219 Cannon House Office Building

Washington, D.C. 20515202-225-9700 (telephone)

202-226-1360 (facsimile)

Counsel for Proposed Intervenor-Defendant the Bipartisan

Legal Advisory Group of the U.S. House of Representatives

Case 2:12-cv-00887-CBM-AJW Document 33 Filed 04/17/12 Page 1 of 13 Page ID #:269

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

Western Division

) No. 2:12-cv-00887-CBM (AJWx)

TRACEY COOPER-HARRIS and )MAGGIE COOPER-HARRIS, )

)Plaintiffs, )

)))

v. )

)

UNITED STATES OF AMERICA, et al., )) Hearing: May 7, 2012

Defendants. ) Time: 10:00 am) Hon. Consuelo B. Marshall

)

On April 2, 2012, the Bipartisan Legal Advisory Group of the U.S. House of

Representatives (House) moved for leave to intervene as a party-defendant for

the purpose of defending against plaintiffs equal protection challenges two Acts of

Congress Section 3 of the Defense of Marriage Act, Pub. L. No. 104-109, 110

Stat. 2419 (1996) (DOMA), codified at 1 U.S.C. 7, and 38 U.S.C. 101(3) &

(31) (Section 101) that the Department of Justice refuses to defend. See

Unopposed Mot. of the [House] for Leave to Intervene (Apr. 2, 2012) (ECF No.

17) (Mot. to Intervene). Counsel for plaintiffs represented to us at that time that

their clients did not oppose the motion. See Mot. to Intervene at 3.

REPLY TO PLAINTIFFS

RESPONSE TO

UNOPPOSED MOTION OF

THE BIPARTISAN LEGAL

ADVISORY GROUP OF

THE U.S. HOUSE OF

REPRESENTATIVES FOR

LEAVE TO INTERVENE


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The plaintiffs now have filed a response to the Motion to Intervene which

purports to reserve certain issues and questions the Houses authority to move to

intervene here in the first place. See Pls. Resp. to Mot. of the [House] to Intervene

. . . (Apr. 5, 2012) (ECF No. 26) (Pls. Resp.). We now reply.

DISCUSSION

A. Plaintiffs first purport to reserve the right to challenge the legality of

[the Houses] participation in this action, presumably at some later date,

including, but not limited to, [the Houses] lack of standing to pursue any appeal

under Article III of the U.S. Constitution. Id. at 2. Of course, no reservation is

required for jurisdictional objections of this nature, although common sense and

respect for the courts dictate that these too should be raised in a reasonably prompt

fashion if a party has any basis for raising them.1

To the extent plaintiffs purport to reserve the right to raise at some later date

any non-jurisdictional issue, their purported reservation fails. Local Rules, not

to mention the orderly administration of justice, require that plaintiffs oppose the

Houses intervention at the time the House seeks such relief if plaintiffs have any

basis for doing so. The Rules do not sanction the wait and see approach that

1We have explained at some length elsewhere why the House has standing to intervene

here, and why the House, as an intervenor-defendant, would have standing to appeal an adverse

ruling. See Mem. of P. & A. in Supp. of Unopposed Mot. of [House] for Leave to Intervene at17-21 (April 2, 2012) (ECF No. 19) (House Intervention Memo); Reply to Executive Branch

Defs. Resp. to Unopposed Mot. of the [House] for Leave to Intervene at 4-5 (Apr. 17, 2012)

(ECF No. 31). We incorporate those arguments here.


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plaintiffs appear to envision, and generic statements that plaintiffs reserve the right

to challenge the legality of [the House]s participation, id. at 2 whatever that

means do not relieve them of their procedural obligations under this Courts

Local Rules. See, e.g., L. Civ. R. 7-9 (Each opposing party shall, [at specified

dates], serve [opposing papers] upon all other parties . . . .); L. Civ. R. 7-12 (The

Court may decline to consider any memorandum . . . not filed within the deadline

set by . . . local rule. The failure to file any required paper . . . within the deadline[]

may be deemed consent to the granting . . . of the motion.); People of Cal., ex rel.

Swim v. Dist. Dir., No. 0200495, 2002 WL 1988181, at *1 (C.D. Cal. July 8,

2002) (Under Local Rule 79, a party must file opposition papers no later than 14

days before the date designated for the hearing of the motion. Failure to do so,

under Local Rule 712, may result in a finding that the party has consented to

granting the motion.); City of Santa Clarita v. U.S. Dept of Interior, No. 02-

00697, 2006 WL 4743970, at *11 (C.D. Cal. Jan. 30, 2006) (plaintiffs claims

abandoned and waived where Plaintiffs ha[d] no legal basis for reserving

argument on any claims for relief and briefing schedule was expressly stipulated

to).2

Inasmuch as plaintiffs specifically have not opposed the relief the House

2Cf. Safeco Ins. Co. v. Rawstrom, 183 F.R.D. 668, 671-72 (C.D. Cal. 1998)

([Discovery] [o]bjections not interposed in a timely initial response may not be held in reserve

and interposed after the period allowed for response by [the Federal Rules of Civil Procedure].).


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seeks here, they have forfeited the opportunity to raise later any non-jurisdictional

argument against the Houses intervention.

B. We explained earlier that, on March 9, 2011 after the Attorney General

announced in February 2011 that the Department would abandon its constitutional

responsibility to defend DOMA Section 3 against equal protection challenges the

House determined to defend that statute in civil actions in which Section 3s

constitutionality has been challenged. See House Intervention Memo at 3-5. We

also explained that, after the Attorney General announced one year later that the

Department also would abandon its constitutional responsibility to defend Section

101 against equal protection challenges, the House determined that it would defend

that statute in this and other cases in which Section 101s constitutionality has been

challenged. Id. at 5-6.

Notwithstanding the Houses explicit and unambiguous representations to

the Court regarding its decision to defend Section 101, which representations are

entitled to respect here,3

and notwithstanding plaintiffs own admission that such a

decision was in fact made see Pls. Resp. at 4 (some Members of the Bipartisan

3See Zivotofsky v. Clinton, --- U. S. ---, 132 S. Ct. 1421, 1433, --- L. Ed. 2d --- (2012)

(Sotomayor, J., concurring in part and in judgment) (Because of the respect due to a coequaland independent department . . . , courts properly resist calls to question the good faith with

which another branch attests to the authenticity of its internal acts.); United States v. Munoz-

Flores, 495 U.S. 385, 409-10, 110 S. Ct. 1964, 109 L. Ed. 2d 384 (1990) (Scalia, J., concurringin judgment) (Mutual regard between the coordinate branches, and the interest of certainty, both

demand that official representations regarding . . . matters of internal process be accepted at face

value.).


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Legal Advisory Group have called upon the other members . . . to rescind the

decision to defend the constitutionality of [Section 101] in this and similar cases)

(emphasis added) plaintiffs now question the Houses authority to intervene here

to defend Section 101. Specifically, plaintiffs say [the Houses] intervention [to

defend the constitutionality of Section 101 in this case] would appear to exceed the

scope of the resolution authorizing [the House]s participation in the myriad cases

challenging the constitutionality of [DOMA] Section 3, because (plaintiffs claim)

not all Members of the Bipartisan Legal Advisory Group were consulted and no

formal vote was taken. Id. at 3.4

Plaintiffs seem to be saying one or more of the following: (1) the Speaker,

as a factual matter, did not consult with all Members of the Bipartisan Legal

Advisory Group regarding Section 101; or (2) the decision the House made in

March 2011, to defend DOMA Section 3 does not permit it also to defend Section

101 in this case; or (3) having once made a decision to defend DOMA Section 3,

the House can never thereafter decide to defend another statute that the Department

declines to defend; or (4) the House can only decide in one particular procedural

manner i.e., the manner the House utilized in March 2011 to defend the

constitutionality of statutes whose defense the Department has abandoned; and (5)

4The resolution to which plaintiffs refer was not a resolution at all. It was a simple

motion, as plaintiffs own papers indicate. See Pls. Resp., Ex. 1 (ECF No. 26-1).


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how the House determines whether to defend the constitutionality of Acts of

Congress whose defense the Executive Branch has abandoned is somehow the

concern of the plaintiffs and/or the courts.

Regardless of whichever one or more of these things plaintiffs are saying,

they are wrong for the following three reasons.

The Bipartisan Legal Advisory Group is entirely the creature of the House

of Representatives and its Rules. The Group exists for the purpose of assisting the

Speaker in providing direction to the House General Counsel. See Rule II.8, Rules

of the House of Representatives, 112th Cong. (2011) (The Office of the General

Counsel shall function pursuant to the direction of the Speaker, who shall consult

with a Bipartisan Legal Advisory Group, which shall include the majority and

minority leaderships.), attached as Ex. 1. Rule II.8, like the other rules of the

House, was adopted pursuant to the Rulemaking Clause, U.S. Const., art. I, 5, cl.

2, which is a broad grant of authority, Consumers Union v. Periodical

Correspondents Assn, 515 F.2d 1341, 1343 (D.C. Cir. 1975), that sits [a]t the

very core of our constitutional separation of powers. Walker v. Jones, 733 F.2d

923, 938 (D.C. Cir. 1984) (MacKinnon, J., concurring in part and dissenting in

part). The Supreme Court has made perfectly clear that while House Rules may

not ignore constitutional restraints or violate fundamental rights, they otherwise are


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absolute and beyond the challenge of any other body or tribunal. United States

v. Ballin, 144 U.S. 1, 5 (1892).

It follows, therefore, that determining how to interpret and apply Rule II.8

and, in particular, determining what constitutes appropriate consult[ation] under

that Rule are internal matters for the House, and the House alone, to decide.

Accordingly, plaintiffs assertion (5) that how the House determined to defend

the constitutionality of Section 101 in this case is somehow the concern of the

plaintiffs and/or the courts is incorrect. For the same reason, plaintiffs

assertions (3) and (4) that having once decided to defend DOMA Section 3, the

House can never thereafter decide to defend another statute that the Department

declines to defend; and that the House is required to use only the procedure it used

in March 2011, to determine whether to defend the constitutionality of statutes

whose defense the Department has abandoned also are manifestly incorrect.

Plaintiffs assertion (2) that the decision the House made in March 2011

to defend DOMA Section 3 does not permit it to defend Section 101 here also is

wrong.

The Houses March 2011 decision to defend DOMA Section 3 which was

taken formally by the Speaker and Bipartisan Legal Advisory Group, pursuant to a

written motion directs the House General Counsel to take such steps as he

considers appropriate . . . to protect the interest of the House in litigation in which


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the Attorney General has ceased to defend the constitutionality of section 3 of the

Defense of Marriage Act. Pls. Resp., Ex. 1.

The plaintiffs in this case plainly have challenged the constitutionality of

DOMA Section 3, Compl. for Declaratory, Injunctive, and Other Relief 57, 69

(Feb. 1, 2012) (ECF No. 1), and the Department plainly has ceased to defend the

constitutionality of section 3 of [DOMA], including in this case. See Notice to

the Court (Feb. 24, 2012) (ECF No. 16). Therefore, the Houses Motion to

Intervene falls squarely within the plain language of the March 2011 authorizing

motion, notwithstanding that the Houses defense of Section 3 here also will entail

the defense of a parallel statutory provision (i.e., Section 101) that uses the same

definition as DOMA and performs the same function in its respective statutory

scheme.

Insofar as the House is concerned and, for the reasons stated above, the

scope of the March 2011 authorization motion concerns the House, and only the

House, see supra p. 6-7 no additional authorization was necessary.

Finally, even if some further procedure were necessary (which it is not),

and even if that were a proper matter of inquiry for plaintiffs and/or for the courts

(which it is not), plaintiffs assertion (1) that the Speaker did not consult with

all Members of the Bipartisan Legal Advisory Group in deciding to defend Section

101 is inaccurate. The staff representatives for each Member of the Bipartisan


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Legal Advisory Group were consulted, and that consultation was wholly in

conformity with the method by which the Group routinely and customarily makes

decisions. Memorandum to File from Jo-Marie St. Martin, General

Counsel/Chief of Legislative Operations for the Speaker of the House (April 16,

2012), attached as Ex. 2.5

C. Finally, we are constrained to point out that, notwithstanding plaintiffs

avowal that the President and Attorney General have determinedthat [Sections 3

and 101] are unconstitutional, Pls. Resp. at 4 (emphasis added) that

determination is legally meaningless. While the Department can, as a practical

matter, abandon its constitutional responsibilities and refuse to defend duly-

enacted federal statutes, as it has here, the responsibility for determining whether a

statute is consistent with the Constitution remains, under our system of

government, the province of the judiciary. See U.S. Const. art. III;Marbury v.

Madison, 5 U.S. (1 Cranch) 137, 177-80, 2 L. Ed. 60 (1803). The Department

itself recently acknowledged as much: Where a plaintiff properly invokes the

5We noted earlier and plaintiffs do not appear to dispute that, while the Bipartisan

Legal Advisory Group strives for unanimity, it functions on a majoritarian basis, like the

institution it represents, when unanimity cannot be achieved. See Mot. to Intervene at 2 n.1; see

also Br.Amicus Curiae of the Bipartisan Legal Advisory Group . . . in Supp. of Affirm., at *1

n.2,Dickerson v. United States, No. 99-5525, 2000 WL 271995 (S. Ct. Mar. 9, 2000) (Bipartisan

Legal Advisory Group as amicus; two Members declined to support filing of brief); Br. of theSpeaker & Bipartisan Leadership Group, at *1 n.1,Bowsher v. Synar, Nos. 85-1377, 85-1378 &

85-1379, 1985 WL 669479 (S. Ct. Mar. 19, 1986) (Bipartisan Legal Advisory Group as

intervenor-appellant; one Member declined to support intervention).


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jurisdiction of a court and presents a justiciable challenge, there is no dispute that

courts properly review the constitutionality of Acts of Congress. Letter from Eric

H. Holder, Jr., Atty Gen. to Hon. Jerry E. Smith, Emilio M. Garza, & Leslie H.

Southwick, Cir. Js. at 2, Physician Hosps. of Am. v. Sebelius, No. 11-40631 (5th

Cir. Apr. 5, 2012) (ECF No. 00511812922).

CONCLUSION

For all the reasons stated above and earlier, the Houses Motion to Intervene

should be granted.

Respectfully submitted,

By: /s/ Paul D. Clement

Paul D. Clement

BANCROFT PLLC

Counsel for Proposed Intervenor-Defendant

the Bipartisan Legal Advisory Group of theU.S. House of Representatives

April 17, 2012


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CERTIFICATE OF SERVICE

I hereby certify that on April 17, 2012, I electronically filed the foregoing

Reply to Plaintiffs Response to Unopposed Motion of the Bipartisan Legal

Advisory Group of the U.S. House of Representatives for Leave to Intervene with

the Clerk of Court by using the CM/ECF system, which provided an electronic

notice and electronic link of the same to the following attorneys of record through

the Courts CM/ECF system:

Caren E. ShortJoseph J. Levin, Jr.

SOUTHERN POVERTY LAW CENTER400 Washington Avenue

Montgomery, AL 36104

[email protected]@splcenter.org

Christine P. Sun

ACLU of Southern California1616 Beverly Boulevard

Los Angeles, CA 90026

[email protected]

Eugene Marder

WILMER CUTLER PICKERING HALE & DORR LLP950 Page Mill Road

Palo Alto, CA 94304

[email protected]

Matthew D. Benedetto

WILMER CUTLER PICKERING HALE & DORR LLP350 South Grand Avenue Suite 2100

Los Angeles, CA 90071

[email protected]


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Randall R. Lee

WILMER CUTLER PICKERING HALE & DORR LLP

350 South Grand Avenue Suite 2100Los Angeles, CA 90071

[email protected]

Jean Lin, Trial Attorney

US DEPARTMENT OF JUSTICECivil Division - Federal Programs Branch

20 Massachusetts Avenue NW

Washington, DC [email protected]

/s/ Kerry W. Kircher

Kerry W. Kircher


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Exhibit 1

Case 2:12-cv-00887-CBM-AJW Document 33-1 Filed 04/17/12 Page 1 of 4 Page ID #:282

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RULES

of the

HOUSE OF REPRESENTATIVES

ONE HUNDRED TWELFTH CONGRESS

PREPARED BY

Karen L. Haas

Clerk of the House of Representatives

JANUARY 5, 2011

(Rev. 10511)


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III

C O N T E N T S

Page

RULE I. The Speaker 1

II. Other Officers and Officials 2

III. The Members, Delegates, and Resident Commissioner of Puerto

Rico 3

IV. The Hall of the House 3

V. Broadcasting the House 4

VI. Official Reporters and News Media Galleries 4

VII. Records of the House 4

VIII. Response to Subpoenas 5

IX. Questions of Privilege 5

X. Organization of Committees 6

XI. Procedures of Committees and Unfinished Business 16

XII. Receipt and Referral of Measures and Matters 24

XIII. Calendars and Committee Reports 25

XIV. Order and Priority of Business 27

XV. Business in Order on Special Days 28XVI. Motions and Amendments 29

XVII. Decorum and Debate 30

XVIII. The Committee of the Whole House on the state of the Union 30

XIX. Motions Following the Amendment Stage 32

XX. Voting and Quorum Calls 32

XXI. Restrictions on Certain Bills 34

XXII. House and Senate Relations 36

XXIII. Code of Official Conduct 38

XXIV. Limitations on Use of Official Funds 39

XXV. Limitations on Outside Earned Income and Acceptance of Gifts 40

XXVI. Financial Disclosure 44

XXVII. Disclosure by Members and Staff of Employment Negotiations 52

XXVIII. [Reserved] 53

XXIX. General Provisions 53


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HOUSE OF REPRESENTATIVES 3

Sergeant-at-Arms. Each report shall

include financial statements and a de-

scription or explanation of current op-

erations, the implementation of new

policies and procedures, and future

plans for each function.

(f) The Sergeant-at-Arms shall fully

cooperate with the appropriate offices

and persons in the performance of re-

views and audits of financial recordsand administrative operations.

Chief Administrative Officer

4. (a) The Chief Administrative Offi-

cer shall have operational and finan-

cial responsibility for functions as as-

signed by the Committee on House Ad-

ministration and shall be subject to

the oversight of the Committee on

House Administration.(b) In addition to any other reports

required by the Committee on House

Administration, the Chief Administra-

tive Officer shall report to the Com-

mittee on House Administration not

later than 45 days following the close

of each semiannual period ending on

June 30 or December 31 on the financial

and operational status of each function

under the jurisdiction of the Chief Ad-

ministrative Officer. Each report shall

include financial statements and a de-

scription or explanation of current op-

erations, the implementation of new

policies and procedures, and future

plans for each function.

(c) The Chief Administrative Officer

shall fully cooperate with the appro-

priate offices and persons in the per-

formance of reviews and audits of fi-

nancial records and administrative op-

erations.

Chaplain

5. The Chaplain shall offer a prayerat the commencement of each days

sitting of the House.

Office of Inspector General

6. (a) There is established an Office of

Inspector General.

(b) The Inspector General shall be ap-

pointed for a Congress by the Speaker,

the Majority Leader, and the Minority

Leader, acting jointly.

(c) Subject to the policy direction

and oversight of the Committee on

House Administration, the Inspector

General shall only

(1) provide audit, investigative, and

advisory services to the House and

joint entities in a manner consistent

with government-wide standards;

(2) inform the officers or other offi-

cials who are the subject of an audit

of the results of that audit and sug-

gesting appropriate curative actions;

(3) simultaneously notify the

Speaker, the Majority Leader, the

Minority Leader, and the chair and

ranking minority member of the

Committee on House Administration

in the case of any financial irregu-

larity discovered in the course of car-

rying out responsibilities under this

clause;

(4) simultaneously submit to the

Speaker, the Majority Leader, the

Minority Leader, and the chair and

ranking minority member of the

Committee on House Administration

a report of each audit conducted

under this clause; and

(5) report to the Committee on Eth-

ics information involving possible

violations by a Member, Delegate,

Resident Commissioner, officer, or

employee of the House of any rule of

the House or of any law applicable tothe performance of official duties or

the discharge of official responsibil-

ities that may require referral to the

appropriate Federal or State authori-

ties under clause 3(a)(3) of rule XI.

Office of the Historian

7. There is established an Office of

the Historian of the House of Rep-

resentatives. The Speaker shall ap-

point and set the annual rate of pay for

employees of the Office of the Histo-

rian.

Office of General Counsel

8. There is established an Office of

General Counsel for the purpose of pro-

viding legal assistance and representa-

tion to the House. Legal assistance and

representation shall be provided with-

out regard to political affiliation. The

Office of General Counsel shall func-

tion pursuant to the direction of the

Speaker, who shall consult with a Bi-

partisan Legal Advisory Group, which

shall include the majority and minor-

ity leaderships. The Speaker shall ap-

point and set the annual rate of pay for

employees of the Office of General

Counsel.

RULE III

THE MEMBERS, DELEGATES, AND

RESIDENT COMMISSIONER OF PUERTO

RICO

Voting

1. Every Member shall be present

within the Hall of the House during its

sittings, unless excused or necessarily

prevented, and shall vote on each ques-

tion put, unless having a direct per-

sonal or pecuniary interest in the

event of such question.

2. (a) A Member may not authorize

any other person to cast the vote of

such Member or record the presence of

such Member in the House or the Com-

mittee of the Whole House on the state

of the Union.

(b) No other person may cast a Mem-

bers vote or record a Members pres-ence in the House or the Committee of

the Whole House on the state of the

Union.

Delegates and the ResidentCommissioner

3. (a) Each Delegate and the Resident

Commissioner shall be elected to serve

on standing committees in the same

manner as Members and shall possess

in such committees the same powers

and privileges as the other members of

the committee.

(b) The Delegates and the Resident

Commissioner may be appointed to any

select committee and to any con-

ference committee.

RULE IV

THE HALL OF THE HOUSE

Use and admittance

1. The Hall of the House shall be used

only for the legislative business of the

House and for caucus and conference

meetings of its Members, except when

the House agrees to take part in any

ceremonies to be observed therein.2. (a) Only the following persons shall

be admitted to the Hall of the House or

rooms leading thereto:

(1) Members of Congress, Members-

elect, and contestants in election

cases during the pendency of their

cases on the floor.

(2) The Delegates and the Resident

Commissioner.

(3) The President and Vice Presi-

dent of the United States and their

private secretaries.

(4) Justices of the Supreme Court.

(5) Elected officers and minority

employees nominated as elected offi-

cers of the House.

(6) The Parliamentarian.(7) Staff of committees when busi-

ness from their committee is under

consideration, and staff of the respec-

tive party leaderships when so as-

signed with the approval of the

Speaker.

(8) Not more than one person from

the staff of a Member, Delegate, or

Resident Commissioner when that

Member, Delegate, or Resident Com-

missioner has an amendment under

consideration (subject to clause 5).(9) The Architect of the Capitol.

(10) The Librarian of Congress and

the assistant in charge of the Law Li-

brary.

(11) The Secretary and Sergeant-at-

Arms of the Senate.

(12) Heads of departments.

(13) Foreign ministers.

(14) Governors of States.

(15) Former Members, Delegates,

and Resident Commissioners; former

Parliamentarians of the House; and

former elected officers and minority

employees nominated as elected offi-

cers of the House (subject to clause

4).

(16) One attorney to accompany a

Member, Delegate, or Resident Com-

missioner who is the respondent in

an investigation undertaken by the

Committee on Ethics when a rec-

ommendation of that committee is

under consideration in the House.

(17) Such persons as have, by name,

received the thanks of Congress.

(b) The Speaker may not entertain a

unanimous consent request or a motion

to suspend this clause or clauses 1, 3, 4,

or 5.

3. (a) Except as provided in paragraph

(b), all persons not entitled to the

privilege of the floor during the session

shall be excluded at all times from the

Hall of the House and the cloakrooms.

(b) Until 15 minutes of the hour of

the meeting of the House, persons em-

ployed in its service, accredited mem-

bers of the press entitled to admission

to the press gallery, and other persons


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Exhibit 2


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JOHN A. BOEHNEROHIO

SPEAKER

TO:FROM:DATE:RE:

(!Congress of tbe Wntteb $tatesJ ! ) o u ~ e of l \ e p r e ~ e n t a t i b e ~ MEMORANDUM

WASHINGTON OFF ICE:H-232 U.S. CAPITOL BUILDIN

WASHINGTON, DC 20515(202) 225-0600

File j Jo-Marie St. Martin, General Counsel/Chief of Legislative Operations l-1()April16, 2012Cooper-Harris, et al. v. United States, et al. , 12-cv-0887 (C.D. Cal.{-

On March 9, 2011, the Speaker met with the other four Members ofthe Bipartisan LegalAdvisory Group to consult on the issue of whether the Group should defend the constitutionalityof Section 3 of the Defense of Marriage Act ("DOMA") - which defines "marriage" and "spouse"for purposes of federal law generally- after the President and Attorney General announced thatthe Department of Justice no longer would do so. At that time, the Bipartisan Legal AdvisoryGroup decided, by a majority vote, that the Speaker should direct the House General Counsel todefend the interests of the House in litigation in which the Department of Justice has ceased todefend the constitutionality of Section 3 of DOMA, and the Speaker so directed the HouseGeneral CounseL Subsequently, the Bipartisan Legal Advisory Group sought, and was granted,leave to intervene in a number of cases around the country in which DOMA Section 3 sconstitutionality was at issue.

On February 1, 2012, a complaint was filed in the case of Cooper-Harris, et al. v. UnitedStates, et al. , No. 12-cv-0887 (C.D. Calif.). The Cooper-Harris plaintiffs challenge theconstitutionality on equal protection grounds ofDOMA Section 3, and 38 U.S.C. 101(3), (31),which defines "surviving spouse" and "spouse" for purposes of Title 38 of the U.S.Code. Thereafter, I, in my capacity as General Counsel to the Speaker, consulted with the staffrepresentatives of the other four Members of the Bipartisan Legal Advisory Group regarding theGroup's defense of Section 3 ofDOMA in cases in which that statute' s constitutionality has beenchallenged and, in particular, whether to defend the constitutionality of 38 U.S.C. 101(3), (31) insuch cases. Those four representatives are Nicole Gustafson, Senior Policy Advisor to theMajority Leader; Steve Pinkos, Policy Director and Counsel to the Majority Whip; Bernard RaimoJr., Counsel to the Democratic Leader; and Keith Abouchar, Senior Policy Advisor to theDemocratic Whip. I, Ms . Gustafson, Mr. Pinkos, Mr. Raimo, and Mr. Abouchar have been thestaff representatives of our respective leaders to the Bipartisan Legal Advisory Group since thebeginning of the 112th Congress in January 2011.

Specifically, on Thursday, March 29, 2012, I spoke by telephone with Messrs. Raimo andAbouchar who indicated that the Democratic Leader and Democratic Whip, respectively, did notagree that the Bipartisan Legal Advisory Group should defend the constitutionality of 38 U.S.C. 101 (3), (31) (just as they had not agreed earlier that the Group should defend Section 3 ofDOMA). Earlier, I had discussed the same issue with Ms. Gustafson and Mr. Pinkos whoindicated that the Majority Leader and Majority Whip, respectively, concurred with the Speakerthat the Bipartisan Legal Advisory Group should defend the constitutionality of38 U.S.C. 101(3), (31).


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Page 2Memorandum to FileCooper-HarrisApril16, 2012

As a result of these consultations, a majority of the Bipartisan Legal Advisory Groupindicated that they favored the Group defending the constitutionality of38 U.S.C. 101(3), (31) incases in which that statute's constitutionality has been challenged, and I, on behalfof the Speaker,so directed the House General Counsel on Thursday, March 29, 2012.

The consultation described in the preceding paragraph, while it is not the only manner inwhich consultation may occur, is the method by which the Bipart isan Legal Advisory Grouproutinely and customarily makes decisions. Accordingly, appropriate consultation preceded theBipartisan Legal Advisory Group 's decisions to defend the constitutionality of both DOMASection 3 and 38 U.S .C. 101(3), (31).


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