1:10-cv-08435 #82

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.
10 Civ. 8435 (BSJ) (JCF)
ECF Case
DECLARATION OF
ROBERTA A. KAPLAN
Roberta A. Kaplan declares as follows:
1. I am a partner at the firm of Paul, Weiss, Rifkind, Wharton &
Garrison LLP, 1285 Avenue of the Americas, New York, New York 10019-6064,
counsel for Plaintiff Edith Schlain Windsor. I submit this Declaration in support of
Plaintiffs Reply Memorandum in Support of her Motion for Summary Judgment.
2. Attached to this Declaration as Exhibit A are true and correct
copies of excerpts from the deposition of Professor George Chauncey, Ph.D.
3. Attached to this Declaration as Exhibit B are true and correct
copies of excerpts from the deposition of Professor Letitia Anne Peplau, Ph.D.
4. Attached to this Declaration as Exhibit C are true and correct
copies of excerpts from the deposition of Professor Gary Segura, Ph.D.
5. Attached to this Declaration as Exhibit D are true and correct
copies of excerpts from the deposition of Professor Michael Lamb, Ph.D..
6. Attached to this Declaration as Exhibit E are true and correct
copies of excerpts from the deposition of Professor Nancy F. Cott, Ph.D.
Case 1:10-cv-08435-BSJ -JCF Document 82 Filed 09/15/11 Page 1 of 2
I declare under penalty of perjury, pursuant to 28 U.S.C. 1746 (2006),
that the foregoing is true and current.
Executed at New York, New York on this 15th day of September 2011:
Roberta A. Kaplan, Esq.
Case 1:10-cv-08435-BSJ -JCF Document 82 Filed 09/15/11 Page 2 of 2

EXHIBIT A
Case 1:10-cv-08435-BSJ -JCF Document 82-1 Filed 09/15/11 Page 1 of 26
George A. Chauncey, Ph. D. July 12, 2011
Page 1
--------------------------------------
capacity as Executor of the Estate
of CLARA SPYER,
Plaintiff,
-against- 10-CV-8435
Defendant.
--------------------------------------
(Caption continued on next page.)
DEPOSITION OF GEORGE A. CHAUNCEY, Ph.D.
Tuesday, July 12, 2011
Page 25
1 G. Chauncey
2 the family. And it did this in newspaper ads
3 published in the local papers and the pamphlets
4 that it distributed door to door and so forth.
5 So I would call it demeaning stereotypes and
6 inflammatory rhetoric used by that particular
7 organization.
8 Take another example. In 1992, I
9 believe it was called Coloradoans Against Special
10 Rights, but I need to double check that name, was
11 established in Colorado to enact Amendment 2, a
12 state constitutional amendment that would have
13 overturned existing protections, legislative
14 protections against discrimination against gay
15 people in Denver, Boulder, a couple other places
16 in Colorado, and have prohibited the government
17 from enacting any other such protections
18 legislatively or by regulation.
19 And the group that campaigned for that
20 was connected to groups that campaigned in
21 similar campaigns in other states and cities to
22 overturn such laws, and they distributed door to
23 door and played on churches -- played in churches
24 videos with names like "The Gay Agenda," "Gay
25 Rights/Special Rights," that again demonized
Page 26
1 G. Chauncey
2 homosexuals as child molesters, as people who
3 engaged in the most startlingly strange and
4 disgusting seeming kinds of sexual behavior, who
5 were a wealthy class, privileged class who didn't
6 need these rights and who threatened children.
7 So, those would be two examples.
8 Q. Can you give any examples of anti-gay
9 groups, contemporary anti-gay groups?
10 A. Well, today those groups would include
11 Focus on the Family, the American Family
12 Association, Traditional Values Coalition.
13 Groups of that sort that have organized -- the
14 National Organization For Marriage -- which have
15 organized around the country to pass
16 constitutional amendments prohibiting same-sex
17 couples from getting married. Those would be
18 some examples.
19 Q. Is the Church of Latter Day Saints an
20 anti-gay organization?
21 MS. KAPLAN: You mean the Mormons?
22 MR. DUGAN: Yes.
23 MS. KAPLAN: Objection to form.
24 A. Well, I guess I would want to say that
25 the Church of Latter Day Saints has certainly
Page 29
1 G. Chauncey
2 MR. DUGAN: Today.
3 MS. KAPLAN: Objection to form but you
4 can answer.
5 A. Well, again, your question is still a
6 little vague to me, I have to admit. But I will
7 attempt an answer. I will go in one direction.
8 I think that there is a difference
9 between a group seeking a tax break which might
10 be looked upon favorably at one point and then
11 get attention and be portrayed unfavorably at
12 another point and a group of people who are being
13 denied fundamental civil rights.
14 I think that in the case of gay and
15 lesbian Americans, we have seen in the last
16 decade really just an extraordinary degree to
17 which their basic rights have been subject to the
18 vicissitudes of public opinion, with -- since the
19 seventies, a large number of cases in which their
20 civil rights have been put to the vote in popular
21 referenda and, something like in three quarters
22 of the cases, have been taken away, or in just
23 the last decade you have seen 29 states enact
24 constitutional amendments which write in gay and
25 lesbian inequality into the fundamental law of
Page 30
1 G. Chauncey
2 the states.
3 It is hard to think of many other
4 groups that have been subject to the vicissitudes
5 of public opinion in quite that way.
6 Q. So when you are talking about civil
7 rights that are subject to the whims of public
8 opinion you have in mind things like marriage,
9 housing --
10 A. Freedom from discrimination. Now, we
11 can look in a longer duration and see for a long
12 time black civil rights were subject to the
13 vicissitudes of public opinion and were, even
14 after emancipation, were severely curtailed by
15 legislation across the south and Supreme Court
16 rulings, until a point when the courts said that
17 actually segregation of the schools is
18 unconstitutional.
19 When the court, the Supreme Court said
20 denying the freedom to marry to an interracial
21 couple is unconstitutional, the court said that
22 at a time when the vast majority of white
23 Americans -- and I think it is something like
24 90 percent of white southerners did not believe
25 that interracial couples should have the right to
Page 39
1 G. Chauncey
2 There were crackdowns in Boise, Idaho and Miami.
3 It would just go on and on. I can't give you a
4 precise number.
5 Q. Were there some regions of the country
6 that were not involved in these crackdowns?
7 A. I am unaware of regions through most
8 of the 20th century, certainly the mid 20th
9 century, which I am talking about here, in which
10 this did not happen.
11 Q. Turning to paragraph 12 on the same
12 page, page 5 of Exhibit 2? You write in that
13 first sentence, "Private hostility and
14 discrimination, often encouraged by government
15 officials, has had a similarly profound and
16 enduring negative effect on lesbians and gay men
17 in American society."
18 Is there any way to evaluate how
19 widespread this private hostility and
20 discrimination is and was?
21 MS. KAPLAN: Objection to form. You
22 can answer.
23 A. Well, again it is difficult to give
24 you precise numbers here, but I will give you two
25 examples of this. As I say in the sentence,
Page 40
1 G. Chauncey
2 private hostility and discrimination was often
3 encouraged by government officials. And one
4 example of this is that in President Eisenhower's
5 executive order in 1953, he not only banned
6 homosexuals from serving in civilian as well as
7 military agencies of the government but required
8 companies that had federal contracts to ferret
9 out and discharge their homosexual employees.
10 And at that time, early --
11 significantly, during the cold war, Korean war,
12 et cetera -- about 20 percent of American
13 companies had contracts with the federal
14 government, so they were required by this law to
15 do this.
16 It was just taken as a matter of
17 course on the part of most lesbians and gay men
18 in this period that except for a handful of
19 professions and job niches, they had to be very
20 careful to hide their homosexuality because they
21 would lose their jobs if their employers learned
22 that they were gay.
23 The most horrifying example I heard
24 was someone talking about a close friend of his
25 whose partner of many years was dying from a
Page 41
1 G. Chauncey
2 brain tumor and he was caring for him and he
3 could never tell his employers what was going on
4 and why he was sometimes missing days at work
5 because he knew he would lose his job if he did
6 so.
7 Q. I think you mentioned there were some
8 professions where gays and lesbians could be
9 open. Which professions were those?
10 A. Again, "be open" is a complicated word
11 in this context. There were a handful of
12 professions that were stereotypically associated
13 with gay men or lesbians, which typically were
14 low prestige, low income professions. Being a
15 waiter, low-level clerical work, being a sales
16 clerk at a department store were some of the
17 professions where people felt -- they still
18 typically wouldn't want to let their customers
19 know that they were gay, but often they didn't
20 deal with the public, as it were, and they could
21 get by.
22 But certainly of the many -- at this
23 point I have interviewed more than 180 older gay
24 men, and pretty consistently they felt that there
25 was a ceiling on how far they could progress if
Page 53
1 G. Chauncey
2 homosexual as an individual and to the growing
3 visibility of those individuals, began to
4 classify and discriminate against certain of its
5 citizens on the basis of their status or identity
6 as homosexuals."
7 When you use the term or the phrase
8 "hostility to same-sex conduct," is that the same
9 as hostility to gays or homosexuals?
11 A. Well, as I have tried to say, the
12 category of homosexual or heterosexual, gay
13 people or straight people didn't exist in the
14 same way before, so there was certainly a long
15 history of hostility to the behavior that would
16 come to be identified with and seen as
17 characteristic of the people that would come to
18 be known as homosexuals or gay people.
19 So, that's the longer tradition. But
20 as I have said here, it was in the 20th century
21 that the government began to classify and
22 discriminate against certain of its citizens on
23 the basis of their status as homosexuals. Again,
24 that drew on a longer history of vilification but
25 it took a distinctive form in the 20th century.
Name of Cases:
EDITH SCHLAIN WINDSOR,
in her capacity as Executor of the Estate of THEA CLARA SPYER,
Plaintiff,
v.
Defendant.
(10 Civ. 8435) (BSJ) (JCF)
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,
Plaintiffs,
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.
(310-CV-1750) (VLB)
Date of Deposition: Tuesday, July 12, 2011
Name of Witness: George Chauncey, Ph.D.
George Chauncey Errata Sheet for July 12, 2011 Deposition
2
I wish to make the following changes, for the following reasons:
PAGE LINE: 6:19
CHANGE FROM: Vicki
CHANGE TO: Vickie
REASON: Typographical Error
PAGE LINE: 7:1
CHANGE FROM: plaintiffs
CHANGE TO: plaintiff
REASON: Transcription error
PAGE LINE: 8:20
CHANGE FROM: American history since 1919; courses on American
CHANGE TO: American history since 1919; also courses on American
PAGE LINE: 8:24
CHANGE FROM: in the United States, courses on the history of
CHANGE TO: in the United States, and courses on the history of
PAGE LINE: 11:89
CHANGE FROM: for deposition preparation for the deposition.
CHANGE TO: for preparation for the deposition.
3
PAGE LINE: 12:25
CHANGE FROM: synonymous
CHANGE TO: synonymously
PAGE LINE: 14:4
CHANGE FROM: content to homosociality. So that American
CHANGE TO: content to homosociality. American society
PAGE LINE: 15:12
CHANGE FROM: this subject I wouldnt say that every single
CHANGE TO: this subject. I wouldnt say that every single
REASON: Typographical error
PAGE LINE: 18:23
CHANGE FROM: alone between mid 1920s and mid-1960s
CHANGE TO: alone between the mid-1920s and mid-1960s.
REASON: Transcription and typographical error
PAGE LINE: 23:11
CHANGE FROM: as second class citizens by denying the right to
CHANGE TO: as second class citizens by denying them the right to
4
PAGE LINE: 24:3
CHANGE FROM: courts to decide what they may wish to about this
CHANGE TO: courts to decide what they may wish to do about this
PAGE LINE: 25:810
CHANGE FROM: I believe it was called Coloradoans Against Special Rights, but I
need to double check that name,
CHANGE TO: Colorado for Family Values
REASON: Witness advised he would confirm the groups name and he did.
PAGE LINE: 27:25
CHANGE FROM: it was engaged
CHANGE TO: it has engaged
PAGE LINE: 29:24
CHANGE FROM: write in gay
CHANGE TO: write gay
REASON: Clarification
PAGE LINE: 31:5
CHANGE FROM: have been allow to.
5
CHANGE TO: have been allowed to marry.
PAGE LINE: 34:21
CHANGE FROM: Leviticus,
CHANGE TO: Leviticuss
PAGE LINE: 36:17
CHANGE FROM: accustomed to road shows, but in these days they
CHANGE TO: accustomed to road shows, but in those days they
PAGE LINE: 37:5
CHANGE FROM: I have think you touched on this
CHANGE TO: I think you have touched on this
PAGE LINE: 38:2021
CHANGE FROM: clippings of crackdowns. And so they both published
CHANGE TO: clippings of crackdowns. And so they published
PAGE LINE: 42:1011
6
CHANGE FROM: In the 1990s many clergy condemned and still condemn
homosexuality as sinful. The
CHANGE TO: In the 1990s, many clergy condemned (and still condemn)
homosexuality as sinful. The
PAGE LINE: 43:10
CHANGE FROM: Gods
CHANGE TO: God has
PAGE LINE: 44:13
CHANGE FROM: rights of that equality
CHANGE TO: rights or that equality
PAGE LINE: 48:1112
CHANGE FROM: intermeshed. There is some thought that the
CHANGE TO: intermeshed -- there is some thought that the
PAGE LINE: 51:4
CHANGE FROM: you know,
CHANGE TO: even though it
7
PAGE LINE: 51:5
CHANGE FROM: conduct. It was
CHANGE TO: conduct it was
PAGE LINE: 57:16
CHANGE FROM: of World War
CHANGE TO: in World War
PAGE LINE: 52:22
CHANGE FROM: same paragraph, you write, Between the 1920s and the 1950s
the government, drawing on long
CHANGE TO: same paragraph, you write, Between the 1920s and the 1950s,
the government, drawing on long
PAGE LINE: 63:3
CHANGE FROM: who was psychological better adjusted. And no
CHANGE TO: who was psychologically better adjusted. And no
PAGE LINE: 66:1821
CHANGE FROM: You say that []
CHANGE TO: Omit quotation marks.
REASON: This is a paraphrase of the actual text.
8
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CHANGE FROM: I have mentioned. And so there was much more
CHANGE TO: I have mentioned. And so there was a much more
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CHANGE FROM: that the
CHANGE TO: why the
PAGE LINE: 68:20
CHANGE FROM: campaigns and that
CHANGE TO: campaigns, in that
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CHANGE FROM: demonization and became an occasion for
CHANGE TO: demonization and it became an occasion for
PAGE LINE: 74:1617
CHANGE FROM: Polling data suggests the magnitude of the shift. In 1985 only a
quarter of
CHANGE TO: Polling data suggest the magnitude of the shift. In 1985, only a
quarter of
9
PAGE LINE: 74:20
CHANGE FROM: gay and more than half believed that they did not
CHANGE TO: gay, and more than half believed that they did not
PAGE LINE: 76:6
CHANGE FROM: camp
CHANGE TO: camps
PAGE LINE: 76:9
CHANGE FROM: accepted. It is very regionally and by religion
CHANGE TO: accepted. It varies regionally and by religion
PAGE LINE: 76:19
CHANGE FROM: has been relative more openness, less policing,
CHANGE TO: has been relatively more openness, less policing,
PAGE LINE: 78:12
CHANGE FROM: can be healed. NARTH also lectures partners with
CHANGE TO: can be healed. NARTH also lectures, partners with
10
REASON: Transcription error.
PAGE LINE: 79:21
CHANGE FROM: homosexuals to be disordered in some way, a
CHANGE TO: homosexuals to be disordered in some way, based on a
PAGE LINE: 83:24
CHANGE FROM: And so, their discrimination has taken
CHANGE TO: And so, discrimination has taken
PAGE LINE: 84:19
CHANGE FROM: meant and who was
CHANGE TO: meant and who it was
REASON: Transcription Error
PAGE LINE: 87:7
CHANGE FROM: respectful
CHANGE TO: respectable
PAGE LINE: 88:11
CHANGE FROM: beginning of the 20th century there was much more
CHANGE TO: beginning of the 20th century, it was much more
11
PAGE LINE: 91:13
CHANGE FROM: decision, which was significant, to overturn the
CHANGE TO: decision, which was significant, in overturning the
PAGE LINE: 91:19
CHANGE FROM: at any given
CHANGE TO: in the present
PAGE LINE: 94:19
CHANGE FROM: generic.
CHANGE TO: generic term.
PAGE LINE: 94:20
CHANGE FROM: Fifty years ago no state had a gay rights law
CHANGE TO: Fifty years ago no state had a gay rights law
REASON: Omit quotation marks; transcription error
PAGE LINE: 97:56
CHANGE FROM: changes that have led to decline
CHANGE TO: changes that have led to a decline
12
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CHANGE FROM: because of censorship, less representation at all
CHANGE TO: because of censorship, less representation, if at all,
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CHANGE FROM: that on the
CHANGE TO: that in the
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CHANGE FROM: there have also been persistence and even an
CHANGE TO: there has also been persistence and even an
PAGE LINE: 101:9
CHANGE FROM: Do this strand of gay liberationist
CHANGE TO: Does this strand of gay liberationist
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CHANGE FROM: bit but shared
CHANGE TO: bit, but it shares
13
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CHANGE FROM: Guy
CHANGE TO: Gay
PAGE LINE: 103:2
CHANGE FROM: Why dont you look at it.
CHANGE TO: Why dont you look at it?
PAGE LINE: 105:13
CHANGE FROM: Now as I say here, yes, there is
CHANGE TO: Now, as I say here, yes, there is a
PAGE LINE: 108:11
CHANGE FROM: directly but often
CHANGE TO: directly, but most often
PAGE LINE: 109:1819
CHANGE FROM: people who support anti-gay -- sorry. Laws against discrimination
against gay people but --
14
CHANGE TO: people who support anti-gay -- sorry, laws against discrimination
against gay people but
PAGE LINE: 110:20
CHANGE FROM: Dr. Chauncey that ran in University of Chicago
CHANGE TO: Dr. Chauncey that ran in the University of Chicago
PAGE LINE: 111:25
CHANGE FROM: referring to
CHANGE TO: referring to,
PAGE LINE: 112:23
CHANGE FROM: some of the sailors at this naval station training station in
Newport
CHANGE TO: some of the sailors at this naval training station in Newport
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CHANGE FROM: to page 28. I think it is second page in. This
CHANGE TO: to page 28. I think it is the second page in. This
PAGE LINE: 115:67
15
CHANGE FROM: hand -- I dont think have made a claim that marriage between
two women or two men have been
CHANGE TO: hand -- I dont think they made a claim that marriage between two
women or two men had been
PAGE LINE: 118:7
CHANGE FROM: the Jews or the
CHANGE TO: the Jews, or of
PAGE LINE: 118:8
CHANGE FROM: enslaved people or
CHANGE TO: enslaved people, or

EXHIBIT B
Name of Cases:
Plaintiff,
v.
Defendant.
(10 Civ. 8435) (BSJ) (JCF)
Plaintiffs,
v.
Defendants.
(310-CV-1750) (VLB)
Date of Deposition: Friday, June 17, 2011
Name of Witness: Letitia Anne Peplau, Ph.D.
Letitia Anne Peplau Errata Sheet for June 17, 2011 Deposition
2
PAGE LINE: 16:3
CHANGE FROM: would it
CHANGE TO: would it be
PAGE LINE: 22:23
CHANGE FROM: ASEF (ph)
CHANGE TO: NSF [National Science Foundation]
PAGE LINE: 29:20
CHANGE FROM: questions
CHANGE TO: lesbians
PAGE LINE: 32:13
CHANGE FROM: Does California studies
CHANGE TO: Those California studies
PAGE LINE: 33:23
CHANGE FROM: I see against relationships of lesbians and gay men.
CHANGE TO: I seewhere it says, The relationships of lesbians and gay men
3
PAGE LINE: 41:4
CHANGE FROM: It was always conceivable
CHANGE TO: It is always conceivable
PAGE LINE: 42:1518
CHANGE FROM: All close same sex relationships between friends, relatives,
coworkers, acquaintances or others which shall be considered
hom osexual relationships.
CHANGE TO: Of all close same-sex relationships between friends, relatives,
coworkers, acquaintances, or others, which shall be considered
hom osexual relationships?
PAGE LINE: 49:56
CHANGE FROM: however, it actually an encompasses
CHANGE TO: however, it actually encompasses
PAGE LINE: 51:35
CHANGE FROM: harms not individuals in legal same sex marriage but gay men,
lesbians and bisexuals as a group.
CHANGE TO: harm not only individuals in legal same-sex marriages, but
gay men, lesbians, and bisexuals as a group.
4
PAGE LINE: 57:10
CHANGE FROM: no singular theory
CHANGE TO: no single theory
PAGE LINE: 57:14
CHANGE FROM: the interplay biological,
CHANGE TO: the interplay of biological,
PAGE LINE: 57:24
CHANGE FROM: that is all learning experience
CHANGE TO: that it is all learning, experience
PAGE LINE: 59:22
CHANGE FROM: married that the families would accept
CHANGE TO: married that their families would accept
PAGE LINE: 61:7
CHANGE FROM: protection or lesbians
CHANGE TO: protection for lesbians
5
PAGE LINE: 63:6
CHANGE FROM:
CHANGE TO: Add Q:
PAGE LINE: 66:6
CHANGE FROM: One form that
CHANGE TO: One form that is
PAGE LINE: 67:11
CHANGE FROM: homosexual marriage is one
CHANGE TO: homosexual marriage if one
PAGE LINE: 70:21
CHANGE FROM: I to want pose an objection
CHANGE TO: I want to pose an objection
PAGE LINE: 71:24
CHANGE FROM: will not effect heterosexual
CHANGE TO: will not affect heterosexual
6
PAGE LINE: 76:8
CHANGE FROM: they in partners are
CHANGE TO: that partners are
PAGE LINE: 77:25
CHANGE FROM: expert
CHANGE TO: experiment
PAGE LINE: 78:3
CHANGE FROM: assign peoples conditions
CHANGE TO: assign people to conditions
PAGE LINE: 78:18
CHANGE FROM: simply her asking
CHANGE TO: simply asking her
PAGE LINE: 80:13
CHANGE FROM: mental harm disparities
CHANGE TO: mental health disparities
7
PAGE LINE: 81:24
CHANGE FROM: Fingerhut, et al. Paper
CHANGE TO: Fingerhut, et al. paper
PAGE LINE: 82:16
CHANGE FROM: depressed
CHANGE TO: depression
PAGE LINE: 88:8
CHANGE FROM: an individual as
CHANGE TO: an individuals
PAGE LINE: 96:2
CHANGE FROM: many Americans old
CHANGE TO: many Americans hold
PAGE LINE: 98:4
CHANGE FROM: imagines of lesbian
CHANGE TO: images of lesbian
8
PAGE LINE: 98:6
CHANGE FROM: for trails
CHANGE TO: portrayals
PAGE LINE: 98:14
CHANGE FROM: More the point
CHANGE TO: More to the point

EXHIBIT C
Gary M. Segura, Ph. D. July 8, 2011
Page 1
--------------------------------------
of CLARA SPYER,
Plaintiff,
Defendant.
--------------------------------------
(Caption continued on next page.)
DEPOSITION OF GARY MICHAEL SEGURA, Ph.D.
Page 28
1 G. Segura
2 MS. HENRY: Objection to form.
3 A. The term significant is a very
4 squishy term. Do they have resources? Yes.
5 Do they expend those resources? Certainly.
6 Are their resources sufficient to the needs of
7 the group to defend their basic interests?
8 That's a different question. Are those
9 resources -- let's see what am I looking
10 for -- comparable to the resources that are
11 arrayed against them? That's a different
12 question.
13 So taking a more narrow response to
14 your question, gays and lesbians do expend
15 financial resources in their own defense.
16 Those resources have repeatedly proven
17 insufficient to protect their basic interests
18 because the resources arrayed against them are
19 far superior.
20 Q. Have you studied how much money gay
21 and lesbian advocacy groups have spent on
22 political lobbying?
23 A. Not specifically. I have not summed
24 up their annual budgets.
25 Q. If you could turn to paragraph 13,
Page 29
1 G. Segura
2 page 5, you write "Political power refers to a
3 person's or group's demonstrated ability to
4 extract favorable or prevent unfavorable
5 policy outcomes from the political system."
6 What do you mean by the use of
7 extract in that sentence?
8 A. We want to look at two aspects of a
9 policy outcome. The first aspect is whether
10 or not that policy outcome is consistent with
11 the preferences of the group. The second is
12 whether or not the group themselves are in the
13 position to make that policy outcome happen or
14 if the policy outcome was simply the
15 happenstance of political conditions or a
16 meeting of the minds or an agreement of others
17 who agree with their position.
18 Q. What is the difference between, I
19 think political happenstance is the term you
20 used, and actual extraction of political
21 benefit?
22 A. I think the difference is best
23 illustrated in the following way: If the
24 desirable outcome is not achieved, are gays
25 and lesbians in the political position to
Page 57
1 G. Segura
2 more access to the Republican party than the
3 Democratic party.
4 Would you say that they have limited
5 access to the political process?
6 MS. HENRY: Objection.
7 A. So I do not present myself as an
8 expert on pro-life politics. That
9 notwithstanding, I would actually take issue
10 with the supposition.
11 There is a sizable contingent of
12 quote-unquote pro-life Democrats in the United
13 States Congress. One former Congressman, Bart
14 Stupak actually held up passage of the
15 comprehensive healthcare reform legislation
16 precisely over the issue of abortion. That
17 is, a Democratic legislator held the
18 President's signature policy goal hostage for
19 months over the issue of abortion.
20 So the idea that pro-lifers only have
21 sympathy in one party I think is actually
22 misrepresenting the facts.
23 Q. How is what you write there in
24 paragraph 32 in that final sentence different
25 from the normal give and take of politics?
Page 58
1 G. Segura
3 A. Let's think about a variety of groups
4 who contest for power in the political system.
5 When we think about businesses and the
6 financial sector, both parties seek the
7 support of businesses. This is a group that
8 we normally think of as associated with the
9 Republicans but not exclusively, and certainly
10 the President has made no secret of his effort
11 to keep Wall Street financial folks on board
12 with the Democratic party agenda. The
13 Democratic party would describe itself as
14 probusiness, even though obviously the
15 Republicans disagree. There is a case of both
16 sides trying to lure a group.
17 The same might be true for
18 Evangelical Christians, even though
19 Evangelical Christians are overwhelming
20 identified with the Republican party,
21 President Obama appeared at Saddleback Church
22 during the campaign, had Rick Warren give the
23 invocation at his inauguration, has made
24 frequent and repeated overtures to try to
25 bring some number of Evangelical Christians
Page 59
1 G. Segura
2 whose policy preferences might not be quite as
3 conservative as others into the Democratic
4 fold. Both sides seek their votes.
5 Another example might be police
6 unions or all sorts of peace officer
7 associations. Police unions tend to prefer
8 law and order sorts of policies from
9 Republicans, but they tend to prefer the
10 fiscal policies and public expenditure
11 policies of Democrats, and also, by the way,
12 the gun control policies of Democrats. So
13 both Democrats and Republicans seek the
14 support of police unions.
15 That is the rough and tumble of
16 politics, where one group has their support
17 sought from one political party and the other
18 tries to go in there and peel some away or
19 create an alternative narrative to get the
20 group to switch sides. That's what I think of
21 as the rough and tumble of politics.
22 In the case of gay men and lesbians,
23 there is a political party who, by practice
24 and by platform, is affirmatively
25 disinterested in their issues. That literally
Page 60
1 G. Segura
2 opposes employment nondiscrimination, opposes
3 adoption rights, opposes same-sex marriage
4 equality, opposes service in the military.
5 Opposes essentially every element of equality
6 that gays and lesbians seek.
7 So when gays and lesbian are seeking
8 legislative redress, there is the occasional
9 Republican that they might wish to go to. But
10 by and large, they really only have one party.
11 That sort of party capture is really
12 debilitating to the political power of a
13 group. And I would give you an example
14 outside of gays and lesbians which I think
15 illustrates my point. I think that in recent
16 years, though certainly not in the last year,
17 but in recent years, I think Latinos have been
18 advantaged vis-a-vis African-Americans because
19 African-Americans split 95 to 5 for the
20 Democratic party; whereas, Latinos are about a
21 two-thirds, one-third. And Republicans
22 believe that if they can get up to about 40
23 percent of the Latino vote, then that would
24 make them more competitive and they can win
25 elections. What this means is that at least
Page 143
1 G. Segura
2 I can't think of a group that has to
3 regularly face legislative and electoral
4 challenges to even the simplest effort at
5 securing protection from social hostility,
6 whether that be valid initiatives to overturn
7 gay rights ordinances that protect employment
8 discrimination, or whether that be the
9 same-sex marriage fight or other issues. So,
10 as I have testified earlier, there is no group
11 that has faced these ballot initiatives or
12 public referendum more frequently than gay men
13 and lesbians. Those things together I think
14 constitute a pretty extreme disadvantage.
15 Q. Earlier you talked about the
16 continuum of political power.
17 Is there a way to determine the
18 dividing line between politically powerful and
19 politically powerless?
20 A. The shorts answer is that the
21 dividing line would be contingent, and I
22 believe this was like one of your first
23 questions when you asked me what is the 50
24 percent mark or what is the threshold or
25 whatever.
Page 166
1 G. Segura
2 question. If you ask me a specific question,
3 I may have to read the section.
4 Q. Let me stipulate that this is a
5 letter that was written to President Barack
6 Obama lamenting the fact that his
7 administration was defending DOMA.
8 MS. KAPLAN: Did you get this off a
9 website? How did you get this?
10 MR. DUGAN: I got it from Chris
11 Bartolmucci. I presume he got it from a
12 website. I can fill in that gap.
13 MS. KAPLAN: If you can just let me
14 know.
15 MR. DUGAN: Sure.
16 Q. This letter was written to President
17 Obama June 2009. Sometime thereafter, the
18 President and the Attorney General determined
19 that they believe DOMA to be unconstitutional.
20 Could this be evidence of politically
21 effective power?
23 You can answer.
24 A. It could, but I am not buying it.
25 First of all, this letter was written
Page 167
1 G. Segura
2 almost two years before the administration
3 changed its policy on DOMA, so maybe in the
4 neighborhood of 21 months.
5 Second, the President of the United
6 States receives literally tens of thousands of
7 letters a day. He probably receives hundreds
8 of letters a day from leaders of large
9 organizations. So that a letter precedes a
10 policy change would require me to assume that
11 the order of, the temporal order of the events
12 is causal, and I have no reason to believe
13 that. I need a little bit more than a letter.
14 Q. Fair enough.
15 MR. DUGAN: Mark this as Exhibit 6.
16 I will represent that this was taken
17 from the White House website.
18 (Defendant's Exhibit 6, excerpt
19 from White House website,
20 marked for identification.)
21 Q. What is this Exhibit 6, Dr. Segura?
22 MS. KAPLAN: Objection to the form
23 and foundation.
24 If you know.
25 A. Based on my observation it appears to
Name of Cases:
Plaintiff,
v.
Defendant.
(10 Civ. 8435) (BSJ) (JCF)
Plaintiffs,
v.
Defendants.
(310-CV-1750) (VLB)
Date of Deposition: Friday, July 8, 2011
Name of Witness: Gary Michael Segura, Ph.D.
Gary Michael Segura Errata Sheet for July 8, 2011 Deposition
2
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CHANGE FROM: individuals
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3
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7
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CHANGE FROM: And if answer is
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CHANGE FROM: I can look at two party votes
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8
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CHANGE FROM: those basics rights
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CHANGE FROM: groups interest are
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CHANGE FROM: as or
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9
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CHANGE FROM: but isnt this the in case of any
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10
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11
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12
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13
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CHANGE FROM: Couldnt it simple demonstrate
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CHANGE FROM: last
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14
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15
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16
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17
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18
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19
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20
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21
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22
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23
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24
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25
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26
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27
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28
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30
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31
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32

EXHIBIT D
Michael E. Lamb, Ph.D. June 24, 2011
Page 1
--------------------------------------
of CLARA SPYER,
Plaintiff,
Defendant.
--------------------------------------
--------------------------------------
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.
-against- 310 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
Page 31
1 M. Lamb
2 Q. Have there been any studies of the
3 children of same-sex couples in the state of
4 Massachusetts?
5 A. I am not familiar with studies of
6 children in those circumstances in Massachusetts.
7 Q. Are you aware of any other study --
8 let me rephrase.
9 Are you aware of any studies of
10 children of same-sex parents in jurisdictions
11 where same-sex parents can be married?
12 A. Am I aware -- sorry. Can you repeat
13 it?
14 Q. Yes. Are you aware of any studies
15 that look at the benefits or the detriments
16 obtained by children of same-sex parents in
17 jurisdictions where same-sex marriage is allowed?
18 A. Same-sex marriage has been allowed
19 only quite recently in this country. There are
20 studies such as those by Henny Bos in the
21 Netherlands, where same-sex marriage has been
22 allowed longer, that would be directly relevant
23 to that issue.
24 Q. And what do those studies show?
25 A. The studies show, as I summarized
Page 32
1 M. Lamb
2 earlier, that there is no difference in
3 children's adjustment depending upon the sexual
4 orientation of their parents and that the
5 children's adjustment in those families, as in
6 all other circumstances, depends on the three
7 classes of variables that I have outlined in my
8 affidavit.
9 Q. In paragraph 41, Exhibit 2, you write,
10 "DOMA may convey to children of married same-sex
11 couples that their parents' relationships are
12 less valid or legitimate than the marriages of
13 heterosexual couples."
14 Can you point to any study that
15 confirms this supposition?
16 A. No. Again, I can't point to any
17 study, which is why I used the word "may."
18 Again, it's an extrapolation from the literature
19 that we do have focused on the factors that
20 affect children.
21 Q. In that same paragraph, paragraph 41,
22 you state that "DOMA denies --" let me read the
23 actual quote.
24 You write, "In addition to denying
25 children important federal legal protections,

EXHIBIT E
In The Matter Of:
LDlTHSCHLAlNWlNDSOR
t
THLUNlTLDSTATLSOlAMLRlCA
NANCYlCOTTPHDVoI
]uI

3b8828a4-74af-4853-9ec9-ed3844ff2d5e
NANCY F. COTT, PH.D. - 7/6/2011
1-800-325-3376 www.merrillcorp.com/law
Merrill Corporation - New York
Page 17
1 09:52:19
together.
2 09:52:24
Q I think you talked about the pair, in your
3 09:52:31
previous answer. Did that pair ever include same-sex
4 09:52:36
couples?
5 09:52:36
A Not to my knowledge, in the colonial part of
6 09:52:41
the -- part of North America or at the time of the
7 09:52:44
founding among those who consider themselves part of the
8 09:52:47
new United States.
9 09:52:47
Q Has marriage been a national or federal issue
10 09:53:02
at times during American history?
11 09:53:05
MR. EHRLICH: Objection to the form. Vague and
12 09:53:08
ambiguous.
13 09:53:08
You can answer.
14 09:53:10
A You said a national or a --
15 09:53:13
Q Let me rephrase.
16 09:53:15
Has marriage been an issue of federal law at
17 09:53:17
times during American history?
18 09:53:19
A Yes, marriage in federal territories.
19 09:53:23
Q What about marriage among native Americans?
20 09:53:29
A Yes, that's a good point, that in dealing with
21 09:53:34
Indians, again, in federal territories and in certain
22 09:53:43
states where the federal government was dealing with
23 09:53:51
the -- with native Americans through the Bureau of
24 09:53:56
Indian Affairs, the form of marriage observed by these
25 09:53:59
populations was of concern to that federal agency, yes,
3b8828a4-74af-4853-9ec9-ed3844ff2d5e
Page 18
1 09:54:04
and to certain people in congress.
2 09:54:05
Q In the post civil war era, did the federal
3 09:54:12
government involve itself in the question of the
4 09:54:15
marriage between former slaves?
5 09:54:17
A During the civil war when the South was
6 09:54:21
occupied and in the very beginning of the post civil war
7 09:54:25
period when the southern states were not yet
8 09:54:28
reconstituted, yes, the federal government through the
9 09:54:32
Freedmen's Bureau concerned itself with marriages of the
10 09:54:36
freed men and women.
11 09:54:37
Q I'd like you to turn to Paragraph 13, page 5 of
12 09:54:55
Exhibit 2. This is your expert affidavit.
13 09:54:59
A I'm sorry. I didn't catch which page.
14 09:55:00
Q Page 5, Paragraph 13, right under Section B.
15 09:55:05
A Okay.
16 09:55:07
Q You write there, "What is seen as legitimate
17 09:55:11
marriage in a given society may be, for instance,
18 09:55:14
polygamous, monogamous, matrifocal or patrifocal,
19 09:55:19
patrilineal or matrilineal, lifelong or temporary, open
20 09:55:21
or closed to concubinage, divorce-prone or
21 09:55:25
divorce-averse," and so on.
22 09:55:26
Are you an expert in marriage and world
23 09:55:29
cultures?
24 09:55:30
A As I said at the outset, I am a specialist in
25 09:55:34
the history of the United States, but that is studied in
3b8828a4-74af-4853-9ec9-ed3844ff2d5e
Page 31
1 10:15:59
where did the norm come from?
2 10:16:00
A Both from religious, i.e., Christian, sets of
3 10:16:07
belief and from political theories that were built with
4 10:16:13
that belief system as their base, although, again, that
5 10:16:19
deals with settler populations and not with native
6 10:16:22
Americans in that geographical range.
7 10:16:26
Q Would you turn to Paragraph 74 on page 18. In
8 10:16:39
the first sentence you write, "The U.S. Congress has
9 10:16:41
involved itself directly in making or breaking marriages
10 10:16:44
only in exceptional situations."
11 10:16:49
What do you mean by "exceptional situations" in
12 10:16:55
this line?
13 10:16:55
A I mean situations in which state governments
14 10:16:58
were not functioning, since state governments have
15 10:17:02
historically had jurisdiction over making and breaking
16 10:17:05
marriages.
17 10:17:05
Q And what have those exceptional situations been
18 10:17:10
where the federal government -- excuse me -- the
19 10:17:13
U.S. Congress has involved itself directly in marriage?
20 10:17:15
A First of all, in the federal territories where
21 10:17:20
congress has primary power; and secondly, as I describe
22 10:17:25
here, in the period of the civil war and immediately
23 10:17:33
after when areas that had been states were -- their
24 10:17:39
state governments were crushed and not yet really
25 10:17:43
assembled.
3b8828a4-74af-4853-9ec9-ed3844ff2d5e
Page 32
1 10:17:44
Q Turn to Paragraph 79, page 19 of Exhibit 2.
2 10:18:13
You write, Dr. Cott, "Congress acted not only because
3 10:18:16
the presence of polygamy on the North American continent
4 10:18:20
seemed loathsome but because Utah's intent to apply for
5 10:18:24
statehood loomed on the horizon."
6 10:18:25
What do you mean by "loathsome"?
7 10:18:27
A There was with an American political theory
8 10:18:34
since the founding, an opposition understood between
9 10:18:37
monogony and polygamy that aligned with the difference
10 10:18:41
between a government of laws in alignment with monogony
11 10:18:52
and a despotic government, which to American founders
12 10:18:56
and many Americans through the 19th century aligned with
13 10:18:59
polygamy. So that polygamy was not only foreign to
14 10:19:04
their religious beliefs of Christianity but also foreign
15 10:19:09
to their political intents.
16 10:19:16
Q If one finds something loathsome, does she
17 10:19:19
demonstrate an animus towards the things she finds
18 10:19:22
loathsome?
19 10:19:22
MR. EHRLICH: Objection to the form. Vague as
20 10:19:27
to "animus."
21 10:19:27
You can answer.
22 10:19:28
A Well, I don't understand why "animus" as a word
23 10:19:33
is so important to you in this question, but I would say
24 10:19:36
that just using the word as I do, yes, that 19th century
25 10:19:40
Americans in general and certainly members of congress
3b8828a4-74af-4853-9ec9-ed3844ff2d5e
Page 33
1 10:19:45
who are involved in this action and a series of
2 10:19:49
presidents exhibited great animus against polygamy.
3 10:19:57
They associated it with barbarism. That was the word
4 10:20:02
most used to describe polygamy.
5 10:20:05
Q And as a historical matter, congress had the
6 10:20:15
power to ban polygamy, correct?
7 10:20:17
A Only in the territories.
8 10:20:23
Q And in Paragraph 78 right above the last
9 10:20:43
paragraph we were looking at, you say that bigamy was a
10 10:20:46
crime in every state. Is it fair to say that polygamy
11 10:20:52
was an exceptional situation because it departed from
12 10:20:54
the understanding of monogony that Americans had
13 10:20:58
embraced?
14 10:20:59
MR. EHRLICH: Objection to the form.
15 10:21:01
A I don't understand the question. Polygamy was
16 10:21:04
an exceptional situation? Whose polygamy?
17 10:21:08
Q Well, you write that "U.S. Congress has
18 10:21:10
involved itself directly in making or breaking marriages
19 10:21:12
only in exceptional situations."
20 10:21:14
What made polygamy an exceptional situation?
21 10:21:17
MR. EHRLICH: Objection to the form. I think
22 10:21:18
she already described exceptional situations, and it
23 10:21:21
didn't relate to polygamy.
24 10:21:22
But you can answer.
25 10:21:23
A Well, I mean, exceptional in the general course

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

Case 1:10-cv-08435-BSJ -JCF Document 82-5 Filed 09/15/11 Page 2 of 14

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