In a letter filed on July 18 with the magistrate judge overseeing the discovery -- or evidentiary -- portion of Edith Windsor's ACLU-led challenge to Section 3 of the Defense of Marriage Act, Windsor's lawyers criticize the Bipartisan Legal Advisory Group's failure to respond to its requests that are part of that process -- and ask the court to compel BLAG to do so.
Noting that BLAG chose to intervene in the case, Windsor's lead attorney, Roberta Kaplan of Paul, Weiss, Rifkind, Wharton & Garrison LLP, noted to Judge James Francis that "the obligations that come with party status include good faith participation in and compliance with the discovery process."
Despite this, Kaplan writes, BLAG has not responded to hardly any of Windsor's requests. She continues:
In attempting to justify its failure to respond, BLAG has not objected on the ground that plaintiffs requests seek information that is not relevant or is not reasonably calculated to lead to the discovery of admissible evidence. Nor has BLAG identified any substantial burden in responding to plaintiffs requests. Rather, BLAG appears to have simply made the tactical decision that it would prefer not to respond substantively to plaintiffs requests for written discovery. This, however, the Federal Rules of Civil Procedure do not permit.
The ACLU's legislative representative, Ian Thompson, explained that although the discovery process at play in the case was ordinary, BLAG's responses -- "or lack thereof" -- were extraordinary.
Referencing the July 20 hearing scheduled for the Senate Judiciary Committee about the Respect for Marriage Act -- a bill to repeal DOMA -- and describing some of the requests that went unanswered by BLAG, Thompson told Metro Weekly, "It simply defies logic that on the eve of a landmark congressional hearing that will explore how a federal law has led to the discriminatory treatment of tens of thousands of gay and lesbian couples and their families that the House BLAG can't even admit that there has been a long, and very well-documented history of discrimination against lesbians and gay men in this country."
He continued, "Further ... they refuse to admit that lesbians and gay men have been denied jobs and other opportunities in the U.S. as a result of their sexual orientation. Have they never heard of Executive Order 10450, which was signed by President Eisenhower in 1953, and had the result of requiring the termination of all gay people from federal employment?"
The executive order was, however, discussed in the July 1 brief filed by the Department of Justice in federal court employee Karen Golinski's lawsuit seeking equal health insurance benefits to cover her wife.
As Thompson noted, "Particularly in light of the Justice Department’s recent brief in the Golinski case, the House BLAG's admissions response is striking in its refusal to admit to the obvious."