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FORMER FEDERAL INTELLIGENCE OFFICER AS AMICUS CURIAE in SUPPORT of PETITIONER and RESPONDENT (Merits)

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FORMER FEDERAL INTELLIGENCE OFFICER AS AMICUS CURIAE in SUPPORT of PETITIONER and RESPONDENT (Merits) No. 12-307 In the Supreme Court of the United States UNITED STATES OF AMERICA, PETITIONER v. EDITH SCHLAIN WINDSOR, IN HER CAPACITY AS EXECUTOR OF THE ESTATE OF THEA CLARA SPYER ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT BRIEF OF FORMER FEDERAL INTELLIGENCE OFFICER AS AMICUS CURIAE IN SUPPORT OF PETITIONER AND RESPONDENT (Merits) JAMES F. SEGROVES Counsel of Record PROSKAUER ROSE LLP 1001 Pennsylvania Ave., NW Washington, DC 20004 (202) 416-6800 [email protected] QUESTION PRESENTED Section 3 of the Defense of Marriage Act (DOMA) defines the term “marriage” for all purposes under federal law, including the provision of federal bene- fits, as “only a legal union between one man and one woman as husband and wife.” 1 U.S.C. § 7. It simi- larly defines the term “spouse” as “a person of the opposite sex who is a husband or a wife.” Id. The question presented is as follows: Whether Section 3 of DOMA violates the Fifth Amendment’s guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their State. (i) ii TABLE OF CONTENTS Page QUESTION PRESENTED...........................................i TABLE OF AUTHORITIES...................................... iii INTEREST OF AMICUS CURIAE ............................1 SUMMARY OF ARGUMENT.....................................4 ARGUMENT ...............................................................5 DOMA HAMPERS THE FEDERAL GOVERNMENT’S ABILITY TO ATTRACT AND RETAIN PERSONNEL WITH SKILL SETS ESSENTIAL TO THE DEFENSE OF NATIONAL SECURITY...........................................5 A. Workforce Diversity Is Essential to the Defense of National Security ...........................6 B. DOMA Negatively Affects Employee Recruitment and Retention In Areas Critical to National Security..........................10 CONCLUSION ..........................................................14 APPENDIX: Intelligence Community Joint Statement on Commitment to Equal Employment Opportunity and Diversity (2013) …1a iii TABLE OF AUTHORITIES Page Cases: City of Cleburne, Tex. v. Cleburne Living Ctr., Inc., 473 U.S. 432 (1985).......................................5 Lawrence v. Texas, 539 U.S. 558 (2003)...............................................5 Massachusetts v. U.S. Dep’t of Health & Human Servs., 682 F.3d 1 (1st Cir. 2012) .........................3 Constitutional Provisions: U.S. Const. amend. V................................................4 Statutes: Defense of Marriage Act § 3, 1 U.S.C. § 7 ......passim Don’t Ask, Don’t Tell Repeal Act of 2010, Pub. L. No. 111-321, 124 Stat. 3515.....................9 Religious Freedom and Civil Marriage Equality Amendment Act of 2009, D.C. Act No. 18-248, 57 D.C. Reg. 27 (Jan. 1, 2010) ..............................3 Legislative Materials: Hearing on H.R. 2517, Domestic Partnership Benefits & Obligations Act of 2009, Before the Subcomm. on Fed. Workforce of the H. Comm. on Oversight & Gov’t Reform, 111th Cong. (2009)........................................11, 12 Presidential Statement on Signing the Don’t Ask, Don’t Tell Repeal Act of 2010, as reprinted in 2010 U.S.C.C.A.N. vol. 5, S47 .....9 iv Executive Materials: Page David H. Petraeus, Dir., U.S. Cent. Intelligence Agency, Diversity at CIA: The Critical Value of Diversity (2012) .................................................7 Exec. Order 12,968, 60 Fed. Reg. 40,245 (Aug. 7, 1995) ........................................................9 Exec. Order 13,087, 63 Fed. Reg. 30,097 (June 2, 1998)........................................................9 Intelligence Community Joint Statement on Commitment to Equal Employment Opportunity and Diversity (2013).........................8 James R. Clapper, Dir., U.S. Office of Nat’l Intelligence, Statement on Intelligence Community Equal Employment Opportunity and Diversity (2010)..............................................8 Nat’l Clandestine Serv., U.S. Cent. Intelligence Agency, Clandestine Service, https://www.cia.gov/offices-of-cia/clandestine- service/index.html (last visited Jan. 30, 2013) ....1 Nat’l Clandestine Serv., U.S. Cent. Intelligence Agency, Core Values, https://www.cia.gov/ offices-of-cia/clandestine-service/code-of- ethics.html (last visited Jan. 30, 2013)................3 Press Release, U.S. Cent. Intelligence Agency, CIA Officer Receives EEOD Award (Nov. 1, 2012) ......................................................13 Press Release, U.S. Cent. Intelligence Agency, CIA Serves as Corporate Sponsor for National LGBT Conference (Nov. 8, 2012) ........................10 v Executive Materials—Continued: Page Press Release, U.S. Cent. Intelligence Agency, Director Leon E. Panetta Speaks on the Importance of Workforce Diversity (Mar. 15, 2011)......................................................7 U.S. Cent. Intelligence Agency, Diversity, https://www.cia.gov/careers/diversity/ index.html (last visited Jan. 30, 2013).................7 U.S. Cent. Intelligence Agency, Sexual Orientation and the CIA: Answers to Common Questions (2006) ..................................10 U.S. Def. Intelligence Agency, Diversity, http://www.dia.mil/careers/diversity (last visited Jan. 30, 2013)....................................8 U.S. Nat’l Sec. Agency, Diversity, http://www.nsa.gov/careers/diversity/ index.shtml (last visited Jan. 30, 2013)...............8 Other Authorities: Br. for U.S. as Amicus Curiae, Brown v. Bd. of Educ. of Topeka, Kan., OT-1952 No. 8 (U.S. Dec. 3, 1952).....................................14 David G. Allen, Retaining Talent: A Guide to Analyzing and Managing Employee Turnover (SHRM Found. 2008) ..........................................12 David K. Johnson, The Lavender Scare: The Cold War Persecution of Gays and Lesbians in the Federal Government (2004) ........9 Mission Diversify: CIA Begins LGBT Recruiting (Nat’l Pub. Radio, All Things Considered, broadcast Dec. 2, 2012).......................................10 vi Other Authorities—Continued: Page Nancy E. Day & Patricia G. Greene, A Case For Sexual Orientation Diversity Management in Small and Large Organizations, 47 Hum. Res. Mgmt. 637 (2008).........................10 Pew Research Ctr., The Generation Gap and the 2012 Election (Nov. 3, 2011)...............................11 The 9/11 Commission Report: Final Report of the National Commission on Terrorist Attacks Upon the United States (2004) ................6 U.S. Gov’t Accountability Office, Human Capital: Federal Workforce Challenges in the 21st Century, Rep. No. GAO-07-556T (2007).............12 1 INTEREST OF AMICUS CURIAE Amicus curiae Graham M. Segroves served as an employee of the Central Intelligence Agency (CIA or Agency) from 2002 to 2012.1 During his tenure with the Agency, Mr. Segroves acted in various capacities within the CIA’s National Clandestine Service, which is responsible for the coordination, de- confliction, and evaluation of clandestine operations across the United States intelligence community.2 For example, from 2002 to 2007, Mr. Segroves served as a Collection Management Officer and Branch Chief, where he managed overseas collection of clas- sified human intelligence on counterterrorism issues for the CIA’s Counterterrorism Center; served as a substantive expert on counterterrorism issues involv- 1 All statements of fact, opinion, or analysis expressed are those of the amicus and do not reflect the official positions or views of the CIA or any other United States Government agency. Nothing in the contents should be construed as assert- ing or implying United States Government authentication of information or the CIA endorsement of the amicus’s views. This material has been reviewed by the CIA to prevent the disclo- sure of classified information. No counsel for a party authored this brief in whole or in part, and no person other than the amicus or his counsel made a monetary contribution intended to fund the preparation or submission of this brief. Petitioner United States and intervenor Bipartisan Legal Advisory Group of the United States House of Representatives have filed letters with the Clerk granting blanket consent to the filing of amicus briefs. Respondent Edith Schlain Windsor’s written consent to the filing of this brief has been filed with the Clerk. 2 Nat’l Clandestine Serv., U.S. Cent. Intelligence Agency, Clandestine Service, https://www.cia.gov/offices-of-cia/clandest ine-service/index.html (last visited Jan. 30, 2013). 2 ing Africa, Europe, global terrorism finance, and terrorism involving weapons of mass destruction; and interacted with United States intelligence and law-enforcement personnel to identify, prioritize, and fill intelligence gaps. From 2009 to 2012, Mr. Segroves helped improve the manner in which the Agency as a whole accom- plishes its vital mission using a diverse workforce operating in a world of diverse threats to our na- tional security. He received the CIA Director’s Award for Diversity in 2010 for significant impact on aware- ness and on the corporate strategic view of diversity and inclusion, laying a broad foundation for thinking and acting on diversity within the Agency. In 2011, Mr. Segroves received the Office of the Director of National Intelligence Community Equal Employ- ment Opportunity and Diversity Exceptional Service Award. Moreover, Mr. Segroves served as a chairper- son of the CIA’s employee group for gay, lesbian, bisexual, and transgender employees and allies, a role that led him to function as an institutional re- source and occasional public representative on
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