Last week, we wrote about the request from Edie Windsor's lawyers for an order compelling John Boehner's lawyers to answer questions. Today, the Judge issued that order, telling Paul Clement that he must answer two of the key questions. I've posted the order here.
Here's the key passage from the order:
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)So, Boehner and Clement must answer those two very important questions.
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.
Yes, the court called BLAG's argument "disingenuous." Yikes. That's very strong language for a judge to use. It's accurate, but that has to sting Mr. Paul Clement.
Anyway, we're keeping a close eye on this case. It's the first one where we've seen Boehner's legal team in action. And, they're not doing so well.
Disingenuous, indeed.
