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Windsor v. USA: Judge orders Clement’s team to answer key questions

DOMA trials Windsor

By Adam Bink

Via AMERICABlog Gay, Windsor’s lawyers previously asked the judge to order Clement’s team to answer some questions about the case. On Thursday, the judge issued such an order, excerpted as follows:

The two interrogatories pressed by the plaintiff ask “What, if anything, do you contend are the compelling justifications for section 3 of DOMA, 1 U.S.C. § 77” (Interrogatory no. 1) and “What, if anything, do you assert are the legitimate government interests rationally advanced by section 3 of DOMA, 1 U.S.C. § 7?” (Interrogatory no. 3). BLAG objects to both on the ground that, to the extent they are construed as contention interrogatories, they are premature. That argument is disingenuous; at the time BLAG responded, the discovery deadline was three days away, and it is now closed. (emphasis added)

BLAG also objects to Interrogatory no. 1 because “it assumes the legal conclusion that Congress required a compelling justification to enact Section 3 of DOMA.” In fact, the interrogatory assumes only that, if the Court finds st ct scrutiny to be the appropriate standard of review, BLAG may wish to proffer compelling justifications for DOMA. The plaintiff is entitled to know what those justifications are, and BLAG is there directed to answer Interrogatory 1.

In response to Interrogatory no. 3, BLAG sets forth authority for the proposition that under rational basis analysis, there is no need to demonstrate the basis on which the legislature actually chose to create classifications. That may be an accurate summary of the law, but it misses the point. BLAG will presumably suggest to the Court potentially rational grounds for the enactment of DOMA, and it must disclose those to the plaintiff in response to a proper contention interrogatory. Accordingly, BLAG shall answer Interrogatory no. 3 as well.

Joe at AMERICABlog notes how the judge’s use of the word “disingenuous” is interesting. It certainly is.


  • 1. Sagesse  |  July 30, 2011 at 7:41 am

    From earlier this week.

    One Step Forward, More to Take

    and a reply

    Military Chaplains and Same-Sex Marriage

  • 2. FlexSF  |  July 30, 2011 at 8:43 am

    Great news. We deserve to know why the absurd, bigot-Republicans oppose legal equality under the law, and it deserves to be tested under federal judicial review.

  • 3. _BK_  |  July 30, 2011 at 9:11 am

    Six months ago I would have objected to generalizing Republicans like that, but now… *shakes head*

  • 4. FlexSF  |  July 30, 2011 at 8:58 pm

    Where are you from?

  • 5. _BK_  |  July 31, 2011 at 12:26 am

    A conservative family in Utah. But I've since escaped, and I'm now recovering. Hence the "six months ago" portion. I don't think that way now; I definitely don't think that way now. The message I intended to get across with my first comment was, "Republicans can pretty much be generalized on this issue". I know they aren't all bigots, but a substantial number, if not a majority, are. 🙁

    Edit: "Escaped" as in, escaped from the conservative influence. I can now think for myself.

  • 6. Carpool_Cookie  |  August 1, 2011 at 4:46 pm

    I'm glad you made it over to the other side, BK!

    The water's much warmer here : )

  • 7. _BK_  |  August 2, 2011 at 1:44 am

    Thanks, Cookie! Warmer water is always a good thing. Much more relaxing. (:

    Wait, did someone pee??

  • 8. Ronnie  |  July 30, 2011 at 8:48 am

    Subscribing & sharing….

    Pro-Gay Comic Taps 'The Power Within' To Combat Bullying

    "Gay comic creators Mark Brill and Charles 'Zan' Christensen have created what may be the best comic book of the year: The Power Within.

    Published by LGBT comic company Northwest Press, 'The Power Within' follows a 13-year old boy named Shannon who turns to his inner superhero to combat anti-gay bullying."

    (me) Awesome……. <3…Ronnie

  • 9. Bruce Stores  |  July 30, 2011 at 1:01 pm

    I get the impression good things are happening here. But does anyone else feel that for the non-attorneys among us, someone might translate the legalize into ordinary English?

  • 10. Coy  |  July 30, 2011 at 1:48 pm

    I'm pretty sure that this is just ordering them to spell out the justifications and the foundation of their argument for the court and the plaintiffs. It's good for us because, well, they don't really have an argument.

  • 11. Tasty Salamanders  |  July 30, 2011 at 7:54 pm

    Yeah I couldn't understand it but some of the comments over on the AMERICAblog Gay article really help spell out what it means.

    Also I just realise how much Prop 8 Trial Tracker has helped my understanding of legalese, but this was still beyond me.

  • 12. Str8Grandmother  |  July 30, 2011 at 1:37 pm

    This kind of reminds me of,
    "We don't need any evidence" Cooper
    "You don't need any evidence?" Judge Walker

  • 13. Ray in MA  |  July 30, 2011 at 3:36 pm

    Good "catch" SG!

  • 14. Sagesse  |  July 30, 2011 at 4:26 pm

    Very thorough, not very uplifting.

    Not So Fast: Tony Perkins Actually Does Think Same-Sex Attraction Is A Choice

    What is glossed over in this debate is that young people are being pushed in to 'reparative therapy' to correct a sexual orientation that is 'unwanted' by their parents or their church.

  • 15. Sagesse  |  July 30, 2011 at 4:31 pm

    Ignore it, and maybe it didn't happen.

    Fox News Underreports Certification Of DADT Repeal

    Fox News Underreports Beginning Of New York Gay Weddings

  • 16. Lymis  |  August 1, 2011 at 5:38 am

    I think that's wonderful news. If the sources that the bigots use for their echo-chamber knee-jerk opposition to our rights stop telling them how dangerous we are, they'll stop hysterically opposing us.

  • 17. Dana_Jeanne  |  July 30, 2011 at 5:00 pm

    Yeah, that sounds like FOX all right. Sheesh.

    I'm not up on legal-speak, but I'm guessing this report is good news?!

  • 18. Matthew  |  July 30, 2011 at 6:45 pm

    Those paragraphs read like stereo instructions…'Insert interrogatory A into Conjugal Slot B…" I seem to be left with a dangling participle. Can anyone translate the legalese into English?

    It sounds positive…as in the judges know the haters argument is bunk. But then again the SCOTUS has been using the the law as kindling the last several months.

  • 19. Cat  |  July 30, 2011 at 8:32 pm

    Although English is my Second Language, let me take a stab at it…

    The plaintiffs asked 'the government' (now represented by BLAG because Obama/Holder don't want to):

    Question 1: Explain to me the general justification for Section 3 of DOMA?

    Question 3: Explain to me the specific justification for Section 3 of DOMA, i.e. what desirable effect does the government claim to achieve by this?

    Section 3 is the part that prevents the federal government from recognizing marriage of a same-sex couple, even though it is valid in one or more states. Question 3 is especially important if the group target by a law or rule (in this case same-sex couples) deserve extra protection under the law (i.e. are a quasi-suspect or suspect class).

    The judge slaps BLAG on the wrist for not answering these questions and the manner in which they evaded answering the questions, and orders BLAG to answer them. As people on the AMERICAblog point out, you can ignore questions asked by the other party without consequence (and it's often a strategy to keep the other party from timely preparing a counter argument), but the judge may order you to answer them anyway, and then you must.

    It has recently proven to be pretty hard to defend the laws that take or keep rights from gays and gay couples (Prop 8 case, DADT and DOMA cases), because most (all?) of it is based on a history of discrimination and continued ignorance, innuendo, and fear mongering. So yes, having BLAG forced to 'show its cards' is a good thing, and allow our side to debunk any myths and pseudo-science that BLAG may wish to use in its defense.

  • 20. Kate  |  July 31, 2011 at 11:03 am

    I wish that I could respond as well in a second language as you do!

  • 21. Cat  |  July 31, 2011 at 11:36 am

    (*blushes*) Thanks! My former English teacher from high school, a British hippie with beard, pony tail and guitar to match, will be proud!

  • 22. Carol  |  July 31, 2011 at 7:28 pm

    Excellent translation, Cat!

    Some background on the procedural stuff: "Discovery" is the pre-trial phase of litigation during which parties can get information from each other about the case, including the legal contentions that the other party is making. If a judge orders a party to answer specific questions (interrogatories) and the party doesn't answer them, there can be severe penalties; for example, a party could be disallowed from making an argument at the trial that it hadn't previously disclosed in response to a contention interrogatory. So for Clement, this is a "put up or shut up" moment.

  • 23. Joe  |  August 1, 2011 at 4:53 am

    "So for Clement, this is a "put up or shut up" moment."

    Not necessarily. As you can see from the order, Clement forced the judge to limit the scope of the interrogatory:

    "In fact, the interrogatory assumes only that, if the Court finds st[ri]ct scrutiny to be the appropriate standard of review, BLAG may wish to proffer compelling justifications for DOMA."

    So now Clement doesnt have to tell them his entire legal strategy; he only has to answer the interrogatory as clarified by the judge.

    Pretty smart lawyering right there.

  • 24. Ed in South Bend  |  July 31, 2011 at 7:59 am

    OT, but I have been thinking about this since NOM is harping on the 10,000 people to vote thing….
    Ok, population of NYS is around 20 million….So even if NOM is saying 10,000 (a high estimate I would think, but lets take them at their word)….that would only work out to 0.0005 percent of NYS who wanted a vote….Just a random thought i had….

  • 25. Greg  |  July 31, 2011 at 10:54 am

    Actually it's .05% – but still a small number.

  • 26. Straight Supporter  |  July 31, 2011 at 11:01 am

    This is OT but something I was thinking earlier about all the ‘let the people vote’ b/s. It could really apply to anything.

    I am about to go on vacation: let the people vote if I can or not. I want to go to the beach on vacation: let the people vote where I can go. I want to take my girlfriend: let the people vote. We want to get a hotel together: let the people vote. We want to go out to eat at a nice restaurant: let the people vote if we can or where we can go. I want to order the steak and she wants a salad: let the people vote. We want to go back to the hotel: let the people vote when we can leave. I want to buy a new car with my bonus: let the people vote. I want it to be a blue 4-door 6-cylinder: let the people vote what type I can by. I want to marry my girlfriend: let the people vote. We want to Florida for our honeymoon: let the people vote. We want to make love on our honeymoon: let the people vote if we can, what positions, whether we can use protection or not, etc.

    The who ‘let the people vote’ can be such a tyranny and I think the public needs to understand this. There are good reasons why the people should not vote on everything. If a pure democracy, the people could vote and if the majority did not like you they could vote away your right to life itself.

  • 27. nightshayde  |  August 1, 2011 at 10:35 am

    Hey, Folks — I’m not seeing our “Reply” buttons & comments are not threaded. Is it just me, or has something gone wonky?

  • 28. Prop 8 Trial Tracker &raq&hellip  |  August 2, 2011 at 1:58 pm

    […] up on last week’s post, the judge in the Windsor v. USA case ordered Clement’s team to answer two key questions: […]

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