Listen and Read: Supreme Court DOMA Arguments

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Listen to the full audio of oral arguments made before the Supreme Court about the Defense of Marriage Act and read an entire transcript of the remarks. 


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 Washington, D.C.

 Wednesday, March 27, 2013

 The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:18 a.m. 


VICKI C. JACKSON, ESQ., Cambridge, Massachusetts; for

 Court-appointed amicus curiae. 

SRI SRINIVASAN, ESQ., Deputy Solicitor General,

 Department of Justice, Washington, D.C.; for

 Petitioner, supporting affirmance. 

PAUL D. CLEMENT, ESQ., Washington, D.C.; for Respondent

 Bipartisan Legal Advisory Group of the United States

 House of Representatives. 

DONALD B. VERRILLI, JR., ESQ., Solicitor General, 

Department of Justice, Washington, D.C.; for

 Petitioner, supporting affirmance. 

ROBERTA A. KAPLAN, ESQ., New York, New York; for

 Respondent Windsor. 


 (10:18 a.m.)


argument this morning in Case 12-307, United 

States v. Windsor, and we will begin with the 

jurisdictional discussion.

 Ms. Jackson?



MS. JACKSON: Mr. Chief Justice, and may it 

please the Court:

 There is no justiciable case before this 

Court. Petitioner, the United States, does not ask this 

Court to redress the injuries it asserts. The House of 

Representatives' Bipartisan Legal Advisory Group, the 

BLAG, which does seek redress in the form of reversal, 

asserts no judicially cognizable injury.

 While it is natural to want to reach the 

merits of such a significant issue, as in Raines v. 

Byrd, this natural urge must be put aside because, 

however important the constitutional question, Article 

III prevents its decision here and requires this Court 

to await another case, another day, to decide the 


 In the district court, Ms. Windsor alleged 

classical Article III injury for which she sought 

redress. Other persons injured by DOMA's operation 

could likewise sue in a first instance court and, if 

their challenge succeeds, obtain relief. But to 

exercise jurisdiction on this appeal when the United 

States asked for the judgment below, fully agrees with 

it, and -­

JUSTICE SOTOMAYOR: Who else is going to be 

aggrieved if she is not? Meaning another person who 

is -- whose benefits are withheld, tax refund is 

withheld, is going to be in an identical situation to 

her? Who else could come in?

 MS. JACKSON: Your Honor, it is possible 

that in district courts where other taxpayers sue the 

United States on similar relief, that the district 

courts will rule differently. At least one district 

court that I'm aware of, in a case called 

Louie v. Holder, ruled against -- upheld DOMA even 

though the Government had switched its position at that 


 In addition, the issue of DOMA -­

JUSTICE SCALIA: Excuse me. If there is no 

jurisdiction here, why was there jurisdiction at the 

trial level?

 MS. JACKSON: Your Honor -­

JUSTICE SCALIA: I mean, the Government 

comes in and says "I agree" -- or if there was 

jurisdiction, why did the Court ever have to get to the 


 If you have a, let's say, a lawsuit on an -­

on an indebtedness and the alleged debtor comes in and 

says, yeah, I owe them money, but I'm just not gonna pay 

it, which is the equivalent of the Government saying, 

yeah, it's unconstitutional but I'm going to enforce it 


 What would happen in that -- in that 

indebtedness suit is that the court would enter judgment 

and say, if you agree that you owe it, by God, you 

should pay it. And there would be a judgment right 

there without any consideration of the merits, right? 

Why didn't that happen here?

 MS. JACKSON: Your Honor, the -- the two 

questions that you asked me, why did the district court 

have jurisdiction, the first answer is that the party 

invoking the district court's jurisdiction was Ms. 

Windsor, who did have an injury.

 As to why the district court didn't enter 

judgment when the United States switched its position, 

I -- I imagine that the Court was -- would have wanted 

to have development of that issue, which was achieved 

through the intervention of the BLAG in the trial court, 

so that the judgment of unconstitutionality and of 

refund would have had a robust hearing -­

JUSTICE SCALIA: Really, that's very 

peculiar. When -- when both parties to the case agree 

on what the law is? What, the -- just for fun, the 

district judge is -- is going to have a hearing?

 MS. JACKSON: Well, Your Honor, the 

jurisdiction of the Court, it seems to me, is not 

affected by the length of the proceedings it undertook. 

In Kentucky -­

JUSTICE SCALIA: I'm not talking about 

jurisdiction now. I'm talking about why the district 

court, without getting to the merits, should not have 

entered judgment against the Government.

 MS. JACKSON: I am not sure I have a 

wonderful answer to that question, Justice Scalia, but I 

do think the case bears some similarities to Kentucky 

against Indiana, which was discussed by the parties, 

where Kentucky sued Indiana in this Court's original 

jurisdiction on a contract. The two States had a 

contract. Indiana agreed it was obligated to perform, 

but it wasn't performing. There -- it was worried about 

a State court lawsuit. This Court exercised original 

jurisdiction to give Kentucky relief. And I think 

that's analogous to what the district court did there.

 The issue before us today, I think, is an 

issue of appellate jurisdiction. And the U.S. is 

seeking to invoke the appellate jurisdiction of Article 

III courts, notwithstanding that it doesn't seek relief; 

it seeks affirmance.

 JUSTICE ALITO: Well, the Solicitor 

General's standing argument is very abstract. But here 

is one possible way of understanding it, perhaps the 

Solicitor General will disavow it, but it would go like 

this: The President's position in this case is that he 

is going to continue to enforce DOMA, engage in conduct 

that he believes is unconstitutional, until this Court 

tells him to stop.

 The judgment of the Second Circuit told the 

Executive Branch to comply with the Equal Protection 

Clause immediately. The President disagrees with the 

temporal aspect of that, so the Executive is aggrieved 

in the sense that the Executive is ordered to do 

something prior to the point when the Executive believes 

it should do that thing.

 Now, wouldn't that be sufficient to make -­

to create injury in the Executive and render the 

Executive an aggrieved party?

 MS. JACKSON: I think not, Your Honor. I 

think not, because I don't see how that would be any 

different from any party saying, well, we really don't 

want to pay this judgment until we're sure all of the 

courts agree. And I think this Court's -- this Court 

doesn't have a lot of case law where a party seeks 

review to get affirmance.

 But in the Princeton University against 

Schmidt case, there was a State court conviction, Ohio 

State Court overturns it, Princeton University seeks 

review, because its regulations were at issue. New 

Jersey joins in seeking review, but does not ask for 

relief; does not take a position on what relief would 

be appropriate.

 JUSTICE BREYER: Why -- why wouldn't -­

imagine -- there in Article II, it says that the 

President shall take care that the laws be faithfully 

executed. So the President has worked out -- I, 

personally, and for reasons in -- in my department, 

others think that this law is unconstitutional, but I 

have this obligation. And because I have this 

obligation, I will not, I will continue to execute this 

law. I will continue to execute it though I disagree 

with it. And I execute it until I have an authoritative 

determination not to.

 Now, how is that different from a trustee 

who believes that he has an obligation to a trust to do 

something under a certain provision that he thinks 

doesn't require that, but, you know, there's a debate 

about it, but he says, I have the obligation here. I'm 

going to follow this through.

 There'd be standing in the second case for 

any fiduciary, despite his personal beliefs, to 

continue. We'd understand that and say there was 

standing. Why don't we here?

 MS. JACKSON: Well, the trustee, I think, 

would be able to go to a court of first instance to get 

an adjudication of the claim. What I'm submitting to 

you that the trustee could not do, after getting the 

first -- the judgment in the court of first instance 

stating what the remedy -- what the liability is, then 

seek review of that judgment, but ask only for it to be 


 JUSTICE BREYER: And that's the part I don't 

understand. For -- if, in fact, as you agree, the 

trustee or other fiduciary in my example would indeed 

have standing to act according to the law, even though 

he thinks that that law is unconstitutional because of 

his obligation such as under Section 2. You agree he 

has the -- he has -- there is standing when he goes into 

court in the first place, which surely he could 

interpret Article II as saying and you follow it through 

as long as you can do it, which includes appeals, until 

the matter is determined finally and authoritatively by 

a court. If you could do the first, what suddenly stops 

you from doing the second?

 MS. JACKSON: In the first instance, the 

obligations are uncertain the trustee is presumably 

subject to potentially adverse competing claims on his 

or her action.

 CHIEF JUSTICE ROBERTS: Well, I would have 

thought -­

MS. JACKSON: Those are -­

CHIEF JUSTICE ROBERTS: I would have thought 

your answer would be that the Executive's obligation to 

execute the law includes the obligation to execute the 

law consistent with the Constitution. And if he has 

made a determination that executing the law by enforcing 

the terms is unconstitutional, I don't see why he 

doesn't have the courage of his convictions and execute 

not only the statute, but do it consistent with his view 

of the Constitution, rather than saying, oh, we'll wait 

till the Supreme Court tells us we have no choice.

 MS. JACKSON: Mr. Chief Justice, I think 

that's a hard question under Article II. But I think 

the Article III questions that this Court is facing turn 

on what the parties in the case have alleged, what 

relief they're seeking, and what the posture is.

 JUSTICE KENNEDY: In Federal court's 

jurisprudence, are you saying there's a lack of 

adversity here?

 MS. JACKSON: I am saying primarily -­

JUSTICE KENNEDY: Can you give us a 


 MS. JACKSON: I -- it's a little difficult, 

because the circumstance is unusual, Justice Kennedy, 

but I think the most apt of the doctrines, although they 

are overlapping and reinforce each other, the most apt 

is standing.

 This Court has made clear that a party on 

appeal has to meet the same Article III standing 

requirements of injury caused by the action complained 

of and redressable by the relief requested by the 


 JUSTICE KENNEDY: But it seems to me 

there -- there's injury here.

 MS. JACKSON: Well, Your Honor, I do not 

agree that the injuries alleged by the United States 

should be cognizable by the Article III courts, because 

those injuries are exactly what it asked the courts 

below to -- to produce. But even if we treat the 

injuries as sufficiently alleged, Article III requires 

that the party complaining of injury ask the court to 

remedy that injury. And that's a very important 

requirement, I think, under Article III for several 


 The idea of the case or controversy 

limitation, as I understand it, is part of a broader 

separation of powers picture, to make sure the Federal 

courts perform their proper role. Their proper role is 

the redress of injury, and it is the need to redress 

injury in ordinary litigation that justifies judicial 

review of constitutional issues. But -­

JUSTICE KAGAN: But, Ms. Jackson, I mean, to 

go back to Justice Kennedy's point, we have injury here 

in the most classic, most concrete sense. There's 

$300,000 that's going to come out of the Government's 

treasury if this decision is upheld, and it won't if it 


 Now, the Government is willing to pay that 

$300,000, would be happy to pay that $300,000, but 

whether the Government is happy or sad to pay that 

$300,000, the Government is still paying the $300,000, 

which in the usual set of circumstances is the classic 

Article III injury.

 Why isn't it here? 


MS. JACKSON: Justice Kagan, there is a 

three-prong test. Even if you treat that as injury, it 

does not meet the requirements for standing on appeal, 

because the Government has not asked this Court to 

remedy that injury. The Government has not asked this 

Court to overturn the rulings below so it doesn't have 

to pay the $365,000. It has asked this Court to affirm. 

And the case or controversy requirement that we're 

talking about are nested in an adversarial system where 

we rely on the parties to state their injuries and make 

their claims for relief.

 If the Government or any party is not bound 

with respect to standing by its articulated request for 

a remedy, what that does is it enables the Court to fill 

in, to reshape. And for a doctrine that is supposed to 

be limiting the occasions for judicial review of 

constitutionality, that is troubling.

 JUSTICE KAGAN: But don't we often separate 

those two things, ask whether there's injury for Article 

III purposes and causation and redressability, as you 

say, but then say, well, sometimes when all of those are 

met, there's not going to be adequate presentation of 

the arguments, and so we will appoint an amicus or we'll 

restructure things? And we do that when the Government 

confesses error, often. I mean, we do that several 

times a year in this courtroom.

 MS. JACKSON: Yes, Your Honor. But 

concession of error cases, with respect, are quite 

different, because in concession of error cases 

typically both parties at the appellate level end up 

being adverse to the judgment below and they are asking 

relief from this Court from the judgment below.

 But here we have a situation where, putting 

BLAG to one side for the moment, between the United 

States and Ms. Windsor there is no adversity, they're in 

agreement, and neither of them is asking this Court to 

reverse or modify the judgment below. And so I think 

the confession of error cases are quite different from 

the perspective of Article III.

 JUSTICE BREYER: No, they're -- they're not 

in agreement about whether to pay the money or not. 

They are in agreement about what arguments are correct 

legal arguments, and I can't think of a case other than 

the sham cases which -- which this isn't, where -- where 

you would find no standing or other obstacle. And I can 

think of one case, which you haven't mentioned, namely, 

Chadha, which seems about identical.

 MS. JACKSON: Your Honor, I don't think that 

Chadha is identical, with respect. In -- for two main 

reasons. In Chadha, the Court was I think quite careful 

to avoid deciding whether the United States had Article 

III standing. It intensively analyzed a statute, since 

repealed, 1252, which gave this Court mandatory 

jurisdiction in cases in which a Federal statute was 

held unconstitutional and the U.S. was a party. And it 

framed its analysis of whether the statute permitted the 

appeal. What I think was -- oh, may I reserve my time 

for rebuttal?

 CHIEF JUSTICE ROBERTS: You can finish your 


 MS. JACKSON: Thank you.

 What was -- what was going on there was the 

Court said: Well, the statute wanted to reach very 

broadly, perhaps implicit, not stated, perhaps more 

broadly than Article III.

 Congress said whenever you have this 

configuration, you go up to the Supreme Court. Then the 

Supreme Court in Chadha says, of course, in addition to 

the statute, there must be Article III case or 

controversy, the presence of the congressional 

intervenors here provides it. And that -­

CHIEF JUSTICE ROBERTS: Thank you, counsel. 

That was more than a sentence.

 MS. JACKSON: Oh, I'm sorry. I'm sorry, 

Your Honor. Thank you. 




 MR. SRINIVASAN: Thank you, 

Mr. Chief Justice, and may it please the Court:

 This Court has jurisdiction in this case 

based on the petition filed by the United States for the 

same reasons it had jurisdiction in parallel 

circumstances in Chadha and Lovett. There are two 

issues that have been -- that have been brought up this 

morning and I'd like to address each in turn.

 One is whether there's a concrete case or 

controversy -- case or controversy in the sense of 

adversity in this Court; and the second is the question 

of whether there's Article III standing for the 

Government to bring this case before the Court.

 CHIEF JUSTICE ROBERTS: On the first one, is 

there any case where all the parties agreed with the 

decision below and we upheld appellate jurisdiction? 

Any case?

 MR. SRINIVASAN: Where the parties agreed -­


agreed with the decision below and we nonetheless upheld 

appellate jurisdiction.

 MR. SRINIVASAN: Well, you didn't speak to 

it in Lovett, Your Honor, but that was the circumstance 

in Lovett.


raised -- it wasn't raised or addressed, and that had 

the distinct situation of an appeal, direct appeal from 

an Article I tribunal.

 MR. SRINIVASAN: Well, I don't -- I don't 

know that that matters, because you had to satisfy 

Article III prerequisites to have the case in this 

Court. Now, Your Honor is, of course, correct that 

the -- the Court didn't affirmatively engage on the 

issue of jurisdiction, but that is a scenario -­


Lovett aside, since none of this was discussed, is there 

any, any case?

 MR. SRINIVASAN: No, I don't know of one. 

But these -- but, Mr. Chief Justice, with all due 

respect -­

CHIEF JUSTICE ROBERTS: So this is totally 

unprecedented. You're asking us to do something we have 

never done before to reach the issue in this case.

 MR. SRINIVASAN: Let me say two things about 

that if I might, Your Honor. First is that it's -- it's 

unusual, but that's not at all surprising, because 

the -­

CHIEF JUSTICE ROBERTS: No, it's not just -­

it's not unusual. It's totally unprecedented.

 MR. SRINIVASAN: Well, it's totally 

unprecedented in one respect, Your Honor. If you look 

at Chadha -- okay, the second point I'd make. Let me 

make one point at the outset, though, which is that 

whether it's totally unusual or largely unusual, I grant 

you that it doesn't happen. But the reason it doesn't 

happen is because -- I wouldn't confuse a numerator with 

a denominator. This set of circumstances just doesn't 

arise very often.

 Now, it's true that when this set of 

circumstances -­

JUSTICE SCALIA: It has not arisen very 

often in the past, because in the past, when I was at 

the Office of Legal Counsel, there was an opinion of the 

Office of Legal Counsel which says that the Attorney 

General will defend the laws of the United States, 

except in two circumstances: Number one, where the 

basis for the alleged unconstitutionality has to do with 

presidential powers. When the presidential powers are 

involved, he's the lawyer for the President. So he can 

say, we think the statute's unconstitutional, I won't 

defend it.

 The second situation is where no possible 

rational argument could be made in defense of it. Now, 

neither of those situations exists here. And I'm 

wondering if we're living in this new world where the 

Attorney General can simply decide, yeah, it's 

unconstitutional, but it's not so unconstitutional that 

I'm not willing to enforce it, if we're in this new 

world, I -- I don't want these cases like this to come 

before this Court all the time.

 And I think they will come all the time if 

that's -- if that's -- if that's the new regime in the 

Justice Department that we're dealing with.

 MR. SRINIVASAN: Justice Scalia, one 

recognized situation in which an act of Congress won't 

be defended in court is when the President makes a 

determination that the act is unconstitutional. That's 

what happened here. The President made an accountable 

legal determination that this Act of Congress is 


 JUSTICE KENNEDY: But then why does he 

enforce the statute?

 MR. SRINIVASAN: Well, that's an option 

that's available to him, Justice Kennedy. In certain 

circumstances, it makes sense not to enforce. But I 

don't think the take-care responsibility is an all or 

nothing proposition such that when the President reaches 

a determination that a statute is unconstitutional, it 

necessarily follows that he wouldn't enforce it. That's 

not what happened in Lovett. That's not -­

JUSTICE KENNEDY: But let me ask you, 

suppose that constitutional scholars have grave doubts 

about the practice of the President signing a bill but 

saying that he thinks it's, unconstitutional -- what do 

you call it, signing statements or something like that. 

It seems to me that if we adopt your position that that 

would ratify and confirm and encourage that questionable 

practice, because if the President thinks the law is 

unconstitutional he shouldn't sign it, according to some 

view. And that's a lot like what you're arguing here. 

It's very troubling.

 MR. SRINIVASAN: I -- in the -- in the 

signing statement situation, Your Honor, one example in 

the past is Turner Broadcasting. In Turner 

Broadcasting, that was a circumstance in which it was -­

it was a veto, but in the course of the veto the 

President made the determination that a particular 

aspect of that statute was unconstitutional.

 And what happened as a result of that is 

that the Department of Justice didn't defend that aspect 

of the statute in litigation. Now, a subsequent 

President reached a contrary conclusion. But -- but my 

point is simply that when the President makes a 

determination that a statute is unconstitutional, it can 

follow that the Department of Justice won't defend it in 


 CHIEF JUSTICE ROBERTS: Sometimes you do and 

sometimes you don't. What is the test for when you 

think your obligation to take care that the laws be 

faithfully executed means you'll follow your view about 

whether it's constitutional or not or you won't follow 

your view?

 MR. SRINIVASAN: Mr. Chief Justice, I'd 

hesitate to give you a black-and-white algorithm. There 

are -- there are several considerations that would 

factor into it. One of the considerations -­

JUSTICE SCALIA: Excuse me. It's not your 

view. It's the President's. It's only when the 

President thinks it's unconstitutional that you can 

decline to defend it? Or what if the Attorney General 

thinks it's unconstitutional?

 MR. SRINIVASAN: No, no. Of course -­

JUSTICE SCALIA: Or the Solicitor General, 

is that enough?

 MR. SRINIVASAN: 28 U.S.C. 530(d) 

presupposes -- Congress presupposes that there are going 

to be occasions in which a statute is -- is not defended 

because of a conclusion by the Attorney General that 

it's unconstitutional.

 JUSTICE SCALIA: Oh, it can be either the 

Attorney General or the Solicitor General?

 MR. SRINIVASAN: It could be, but this is a 

situation in which the President made the determination. 

And when the President makes that determination, there 

are a few considerations that I think would factor into 

the mix in determining whether enforcement will follow. 

One of them would be the consequences of enforcement for 

the individuals who are affected.

 And so, for example, I would assume that if 

it's a criminal statute that we're talking about, an 

enforcement would require criminal enforcement against 

somebody and -- which would beget criminal sanctions. 

That may be -­

JUSTICE SCALIA: So when Congress enacts a 

statute, it cannot be defended, it has no assurance that 

that statute will be defended in court, if the Solicitor 

General in his view thinks it's unconstitutional?

 MR. SRINIVASAN: There have --

Justice Scalia -­

JUSTICE SCALIA: Is that right?

 MR. SRINIVASAN: -- there have been 

occasions in the past. 


 MR. SRINIVASAN: Yes. Yes, it's true. And 

28 U.S.C. 530(d) exactly presupposes that. That's the 

exact occasion in which that process is -- is 

occasioned. Congress knew that this would happen. Now, 

it can happen also when -- in the rare instance in which 

the President himself makes that determination. And I 

don't think that the take-care clause responsibility has 

this all or nothing capacity to it. It can be that the 

President decides -­

JUSTICE GINSBURG: Mr. Srinivasan -­

JUSTICE SCALIA: It's not what the OLC 

opinion said, by the way.

 MR. SRINIVASAN: It can be that the 

President decides to enforce it. That's what happened 

in Lovett and that's the course of events that was 

sought -- that happened in Chadha. And there's -­


Government -- when the -- when the case is adjudicated 

in the first instance -- we're talking here about 

appellate authority.


 JUSTICE GINSBURG: The Government sometimes 

loses cases in the first instance and then it doesn't 

appeal. If it agrees with the result that the court 

reached, it doesn't appeal and then the judgment in the 

first instance where there was adversity is -- is the 

last word. So, when does the Government decide, yes, we 

agree with the -- the adjudication in the court of first 

instance and so we'll leave it there, and when does it 

say, yeah, we agree, but we want higher authority to 


 MR. SRINIVASAN: Well, there are -- there 

are a number of considerations that could factor into 

it, Justice Ginsburg. You're right that either of those 

scenarios is possible. The reason that the Government 

appealed in this case is because the President made the 

determination that this statute would continue to be 

enforced, and that was out of respect for the Congress 

that enacted the law and the President who signed it, 

and out of respect for the role of the judiciary in 

saying what the law is.

 The point of taking an appeal here is that 

the Government suffered an injury because a judgment was 

entered against the Government in the court of appeals. 

That's a classic case for injury.

 JUSTICE SOTOMAYOR: Counsel, could you not 

run out of time on the BLAG standing? I know we -- we 

didn't permit Ms. Jackson to -- to address it. So don't 

run out of time on that. 

MR. SRINIVASAN: I -- I won't, Your Honor. 

I'll be happy to turn -- turn to BLAG standing. I would 

like to make a couple of points on the question of our 

own standing to bring the petition before the Court.

 And I think Justice Breyer was right. The 

key precedent here is Chadha. Chadha establishes a 

couple of things. First, Chadha establishes that there 

is aggrievement in the circumstances of this case. And 

I don't see what the difference is between aggrievement 

for purposes of statutory -- the statutory analysis at 

issue in Chadha, and injury for purposes of Article III.

 JUSTICE ALITO: Well, how are you aggrieved? 

"Aggrieved" means that you are deprived of your legal 

rights. And you don't think that you've been deprived 

of your legal rights because your rights -- your 

obligations under the Constitution supercede DOMA, and 

you haven't been deprived of anything that you're 

entitled to under the Constitution. So how are you 


 MR. SRINIVASAN: I guess we'd -- I'd 

subscribe to the aggrievement analysis that the Court 

made in Chadha at pages 929 to 931 of its opinion. And 

what the Court said is this: "When an agency of the 

United States is a party to a case in which an act of 

Congress that it administers is held unconstitutional, 

it is an aggrieved party. The agency's status as an 

aggrieved party is not altered by the fact that the 

Executive may agree with the holding that the statute in 

question is unconstitutional." That description is on 

all fours with the circumstances of this case.

 JUSTICE ALITO: Could I just -- before you 

go on to the House group, could I just clear up 

something? In your brief, you argue that you are 

representing all three branches of the Government, is 

that right?


 JUSTICE ALITO: You're -- you're 

representing the Judiciary as you stand before us here 

today -­


JUSTICE ALITO: -- trying to persuade the 

Court, you're representing the Court?

 MR. SRINIVASAN: We represent the sovereign 

interests of the United States. Of course, in a case 

like this, the -- the -- we're submitting the dispute to 

the Judiciary for resolution, so in that sense, we -­

I'm not going to stand here and tell you that I can 

dictate the -- that the Judiciary comes out in one 

direction or the other. I certainly would like to be 

able to do that, but I don't think I can, in all 

fairness, do that. But I -­

JUSTICE ALITO: It seems very strange. So 

in -- in a criminal case where it's the United States v. 

Smith, appearing before an Article III judge, the United 

States, the prosecutor is representing the court as 


 MR. SRINIVASAN: Well, I think -- I guess 

what I would say is this: The United -- the United 

States -- the Executive Branch represents the sovereign 

interests of the United States before the Court. It's 

not -- I think the point of this is that it's not that 

the Executive Branch is representing the Executive 

Branch alone.

 The Executive Branch is representing the 

sovereign interests of the United States, and those 

interests would include the interests of the Congress 

that enacted the law, the interests of the President 

that signed it, and the interests of the Judiciary in 

pronouncing on what the law is. And the course of 

action that the President chose to undertake here is in 

keeping with all of those considerations.

 JUSTICE KAGAN: Mr. Srinivasan, Chadha says 

what you said it said about what it means to be 

aggrieved -­


JUSTICE KAGAN: -- but Chadha also left open 

the Article III question. Why did Chadha leave it open 

if it's the same thing?

 MR. SRINIVASAN: I don't -- I don't know why 

Chadha didn't engage on it in particular. I think part 

of it, Justice Kagan, is that the Court didn't have the 

methodology at that point in time that it does now. 

don't know that it neatly divided between those 

questions in the same way. So yes, it left the Article 

III question open, but I think the question of Article 

III injury necessarily follows from aggrievement and I 

haven't -- I haven't heard a persuasive argument to the 


 If we were aggrieved in the circumstances of 

Chadha, it seems to me it necessarily follows that we're 

injured. We're injured in a couple of ways. An act of 

Congress has been declared unconstitutional, which 

Chadha itself says constitutes aggrievement and 

therefore constitutes injury. In this case also, we're 

required to pay a judgment -­

JUSTICE SCALIA: Didn't Chadha -- didn't 

Chadha suggest that Congress could have standing in -­

in Chadha?

 MR. SRINIVASAN: I'm sorry?

 JUSTICE SCALIA: In Chadha, there was an 

argument that Congress had standing, because what was at 

issue in the case was precisely a prerogative of 

Congress to exercise the one-house or two-house veto.

 MR. SRINIVASAN: There wasn't a -- there -­

that was an issue in Chadha. I don't know that that 

issue was joined, actually, Justice Scalia. The Court 

did say at page 939 of its opinion that Congress is a 

proper party to defend the constitutionality of the Act 

and a proper petitioner, and I think that's the best 

language for the other side on this issue.


shouldn't be concerned about that part of Chadha because 

the issue wasn't joined there?

 MR. SRINIVASAN: Well, I don't -- I don't 

read the -­

CHIEF JUSTICE ROBERTS: But we should take 

Lovett as a binding precedent even though the issue 

wasn't addressed at all?

 MR. SRINIVASAN: I didn't -- to be -- to be 

fair or, as was suggested this morning, to be cricket, 

I -- I didn't mean to suggest that Lovett is binding 

precedent, Mr. Chief Justice. What I'm saying is Lovett 

is a case in which this same scenario as happens here 

occurred. That's my -- that's my point about Lovett.

 JUSTICE SOTOMAYOR: All right. Let's go to 

the BLAG issue.

 MR. SRINIVASAN: So -- sure.

 JUSTICE SOTOMAYOR: And the issue wasn't 

joined. So what do you think we meant? And I know 

Justice Scalia doesn't care what you think we meant.

 MR. SRINIVASAN: Right. Well -­

JUSTICE SOTOMAYOR: But what is your reading 

of what that means, that Congress can -­

MR. SRINIVASAN: I think that -­

JUSTICE SOTOMAYOR: -- intervene in 

situations in which its interests are injured?

 MR. SRINIVASAN: Sure. So there are two 

aspects of Chadha that are relevant on pages 939 and 

940. The second discussion at page 940, I think, deals 

with prudential considerations that this Court ought to 

take into account to make sure that it has a sufficient 

adverse presentation of the competing arguments before 


 And that's accounted for by an amicus type 

role, and I think that's what the Court had in mind in 

Chadha, because the two cases that are cited in support 

of that proposition were both cases in which there was 

an appointed amicus. So that -- that deals with that 

aspect of Chadha.

 The other aspect of Chadha is the sentence 

that I alluded to earlier. And I guess I'm not -- I'm 

not going to tell you that that sentence doesn't bear on 

the issue at all, but I will say this: What's cited in 

that is 28 U.S.C. 1254.

 So I think the point that was directly -­

directly being made is that the House and Senate were 

parties for purposes of the statute and they were 

parties because they had intervened and so they had 

party status.

 JUSTICE SOTOMAYOR: So are you accepting the 

amici's formulation that somehow the representative has 

to be of both houses and not just one?

 MR. SRINIVASAN: No. I guess my -- my point 

is a little bit different. My point is that this was 

talking about whether they're a party for statutory 

purposes under 1254. I don't read this to address the 

question of Article III standing.

 On the question of Article III standing, I 

guess what I would say is this: Chadha at most, if it 

says anything about Article III standing -- and I don't 

know that it does with respect to the House or Senate -­

at most what it would say was in the unique 

circumstances of that case, where you had a legislative 

veto that uniquely affected a congressional 

prerogative -­

JUSTICE SOTOMAYOR: So you take the position 

that Congress -­

MR. SRINIVASAN: -- there might be standing 

in that situation. Even that I don't want to concede, 

but -­

JUSTICE SOTOMAYOR: Well, I want to know 

what you're conceding.

 MR. SRINIVASAN: I'm conceding that at 

most -­

JUSTICE SOTOMAYOR: Let's assume this very 

case. Would -- who would ever have standing on behalf 

of Congress? Anyone? Or are you saying there's never 


 MR. SRINIVASAN: Well, there are two 

different cases. This case is different, because this 

case doesn't involve the kind of unique congressional 

prerogative that was at issue in Chadha. Chadha 

involved a legislative veto.

 Here, if I could just finish this -­

CHIEF JUSTICE ROBERTS: You can finish your 


 MR. SRINIVASAN: -- this thought. Thank 

you, Mr. Chief Justice.

 Here, I don't think the interest that's 

being asserted is even in the same plane as the one that 

was asserted and found deficient in Raines v. Byrd.

 CHIEF JUSTICE ROBERTS: Thank you, counsel.

 Mr. Clement?





 MR. CLEMENT: Thank you, Mr. Chief Justice, 

and may it please the Court:

 This Court not only addressed the issue of 

the House's standing in Chadha; it held that the House 

is the proper party to defend the constitutionality of 

an Act of Congress when the executive agency charged 

with its enforcement agrees with plaintiff that the 

statute is unconstitutional.

 JUSTICE SOTOMAYOR: Mr. Clement, Chadha was 

somewhat different because there was a unique House 

prerogative in question. But how is this case any 

different than enforcing the general laws of the United 

States? There's no unique House power granted by the 


 MR. CLEMENT: Well, Justice Sotomayor -­

JUSTICE SOTOMAYOR: It's a law of the United 

States and the person who defends it generally is the 

Solicitor -- Solicitor General. 

MR. CLEMENT: Sure, generally, unless and 

until they stop defending it, at which point we 

submit -­

JUSTICE SOTOMAYOR: Well, then, why 

shouldn't -- why shouldn't taxpayers have a right to 

come in? And we say they don't.

 MR. CLEMENT: Because the House is very -­

in a very different position in a case like this and in 

Chadha from just the general taxpayer. Now, in a case 

like Chadha, for example, you're right, it was the 

one-house veto, if you will, that was at issue. But it 

would be a strange jurisprudence that says that the 

House has standing to come in and defend an 

unconstitutional one-house veto, but it doesn't have 

standing to come in and defend its core Article I 

prerogative, which is to pass statutes and have those 

statutes -­

JUSTICE KENNEDY: Well, that -- that assumes 

the premise. We didn't -- the House didn't know it was 

unconstitutional. I mean -­

MR. CLEMENT: Well, with all due respect, 

Justice Kennedy, I think the House -­

JUSTICE KENNEDY: We are talking about ex 

ante, not ex post, what is standing at the outset? And 

the House says this is constitutional. 

MR. CLEMENT: Sure. And there is a 

presumption that its acts are constitutional. That 

presumption had real life here because when Congress was 

considering this statute it asked the Justice Department 

three times whether DOMA was constitutional, and three 

times the Justice Department told them that it was in 

fact constitutional. So I think it's a fair assumption 

that they at least have standing to have that 

determination made by the courts, and this Court has 

held that in the context of State legislatures and the 

courts have -­

JUSTICE KENNEDY: So you don't think that 

there is anything to the argument that in Chadha the 

House had its own unique institutional responsibilities 

and prerogatives at stake, either the one-house veto or 

the legislative veto?

 MR. CLEMENT: Well, I would say two things.

 JUSTICE KENNEDY: That's irrelevant?

 MR. CLEMENT: I don't think -- I don't think 

it's irrelevant. I would say two things. One is, I 

don't think there was anything particularized about the 

fact that it was the House that exercised the one-house 

veto, because the Court allowed the Senate to 

participate as well and the Senate's interest in that 

was really just the constitutionality of the legislation 

and perhaps the one-house veto going forward.

 But what I would say is I just -- I would 

continue to resist the premise, which is that the 

House's prerogatives aren't at stake here. The House's 

single most important prerogative, which is to pass 

legislation and have that legislation, if it's going to 

be repealed, only be repealed through a process where 

the House gets to fully participate.

 CHIEF JUSTICE ROBERTS: What if you -- what 

if you disagree with -- the executive is defending one 

of your laws, if that's the way you insist on viewing 

it, and you don't like their arguments, you say, they 

are not making the best argument. Is that a situation 

in which you have standing to intervene to defend the 

law in a different way than the executive?

 MR. CLEMENT: No, I would say we would not, 

Mr. Chief Justice. I would say in that circumstance the 

House would have the prerogative to file an amicus brief 

if it wanted to, but that's because of a sound 

prudential reason, which is when the Executive is 

actually discharging its responsibility, its traditional 

obligation to defend an Act of Congress, if Congress 

comes in as a party it has the possibility of 

second-guessing the way that they are actually defending 


But if the Executive is going to vacate the 

premises or, in a case like this, not just vacate the 

premises, but stay in court and attack the statute, you 

don't have that prudential concern. And that's why -­

JUSTICE KAGAN: How about a couple of cases 

sort of in the middle of the Chief Justice's and this 

one? So let's say that the Attorney General decides 

that a particular application of the statute is 

unconstitutional and decides to give up on that 

application. Or even let's say the Attorney General 

decides that the application of the statute might be 

unconstitutional, so decides to interpret the statute 

narrowly in order to avoid that application. Could 

Congress then come in?

 MR. CLEMENT: Well, I think -- if in a 

particular case, which is obviously not this case, the 

Executive decides, we are not going to defend the 

statute as applied I think in that situation the House 

could come in. I think as a matter of practice it 

probably wouldn't.

 And it's not like the House and the Senate 

are very anxious to exercise this prerogative. In the 

30 years since the Chadha decision, there's only been 12 

instances in which the -- in which the House has come in 

and intervened as a party. And I think it's very 

important to recognize that whatever -­

JUSTICE GINSBURG: Does that include the -­

does that include the courts of appeals or just this 


 MR. CLEMENT: That includes all courts, but 

excluding the DOMA cases. So from the point of Chadha 

until the DOMA cases, there were a total of 12 cases 

where the House intervened as a party.

 And I do think that particularly in the 

lower court cases, it's very important to understand 

that party status is critical. I mean, in this case it 

doesn't make a huge differences if you are an amicus 

with argument time versus a party. But in the district 

court that makes all the difference. Only a party can 

take a deposition.

 JUSTICE BREYER: This is what -- we have 

always had the distinction between the public action and 

the private action. A public action, which does not 

exist under the Federal Constitution, is to vindicate 

the interest in the law being enforced. Now, when the 

government, State or Federal, in fact has the interest, 

a special interest in executing the law, here given to 

the President, and they can delegate that interest to 

Congress, if they did, which arguably they didn't do 

here. But to say that any legislator has an interest on 

his own without that delegation to defend the law is to 

import in that context the public action into the 

Federal Government.

 Now, that -- it hasn't been done, I don't 

think, ever. I can see arguments for and against it, 

but I can't think of another instance where that's 


 MR. CLEMENT: Well, I would -- a couple of 

things, Justice Breyer. I mean, I would point you to 

Chadha and I realize you can distinguish Chadha.

 JUSTICE BREYER: Chadha is really different 

because of course there is an interest in the 

legislature in defending a procedure of the legislature. 

Now, that's -- that isn't tough. But this is, because 

the only interest I can see here is the interest in the 

law being enforced.

 MR. CLEMENT: Well, if I -­

JUSTICE BREYER: And that's -- I'm afraid of 

opening that door.

 MR. CLEMENT: Well, it's understandable. 

mean, obviously nobody's suggesting, at least in the 

Legislative Branch, that this is a best practices 


 JUSTICE BREYER: No, no. But think of 

another instance where that's happened, where in all of 

the 12 cases or whatever that what this Court has said, 

without any special delegation of the power of the State 

or Federal Government to execute the law, without any 

special delegation, a legislator simply has the power, 

which a private citizen wouldn't have, to bring a 

lawsuit as a party or defend as a party to vindicate the 

interest in the law being enforced, the law he has voted 


 Now I can imagine arguments on both side, so 

I'm asking you only, is there any case you can point me 

to which will help?

 MR. CLEMENT: I can point to you a couple of 

cases that will help but may not be a complete solution 

for some of the reasons you built into your question. 

The cases I would point to help are Coleman v. Miller, 

Karcher v. May, and Arizonans for Official English. And 

all of those -- I don't think Coleman involved any 

specific legislative authorization, but you can 

distinguish it, I suppose.

 But in trying to distinguish it, keep in 

mind that this Court gave those 20 Senators not just 

standing to make the argument about the role of the 

lieutenant governor, but also gave them standing to make 

the separate argument, which is the only one this Court 

reached, because it was divided four to four on the 

lieutenant governor's role, the only issue that the 

Court reached is the issue whether prior ratification 

disabled them from subsequent legislation action, which 

is just a way of saying what they did was 


 So I think Coleman is quite close. Karcher, 

Arizonans against English, there was an authorization. 

We would say H. Res. 5 is enough of authorization for 

these purposes.

 JUSTICE SOTOMAYOR: Can you tell me where 

the authorization is here? I know that there is a 

statute that gives the Senate specifically authorization 

to intervene and that there was consideration of 

extending that right to the House. But the appointment 

of BLAG is strange to me, because it's not in a statute, 

it's in a House rule.

 So where -- how does that constitute 

anything other than a private agreement among some 

Senators, the House leadership? And where -- from where 

do they derive the right, the statutory right, to take 

on the power of representing the House in items outside 

of the House? I know they control the procedures within 

the House, but that's a very different step from saying 

that they can decide who or to create standing in some 

way, prudential or otherwise, Article III or otherwise. 

MR. CLEMENT: Well, Justice Sotomayor, I can 

point you to two places. One is the House rules that 

are pursuant to the rulemaking authority and approved by 

the institution. They're approved in every Congress. 

Rule 2.8.

 JUSTICE SOTOMAYOR: What other House Rule 

creates the power of the majority leaders to represent 

the House outside of the functions of the House?

 MR. CLEMENT: I'm not sure there is another 

one, but that's the sole purpose of Rule 2.8. It 

creates the Office of the General Counsel -­

JUSTICE SOTOMAYOR: This would be, I think, 

sort of unheard of, that -­

MR. CLEMENT: I don't think so, 

Justice Sotomayor. That's the same authority that gave 

the House, essentially a predecessor to it -- - it would 

be the same authority that has had the House appear in 

litigation ever since Chadha. In Chadha there was a 

vote that authorized it specifically, but we have that 

here in H. Res. 5, which is the second place I would 

point you.

 JUSTICE SOTOMAYOR: We don't even have a 

vote here.

 MR. CLEMENT: We do. We do have a vote in 

H. Res. 5. At the beginning of this Congress in 

January, the House passed a resolution that passed, that 

authorized the BLAG to continue to represent the 

interests of the House in this particular litigation. 

So I think if there was a question before H. Res. 5, 

there shouldn't be now.

 I would like to -­

JUSTICE KENNEDY: Under your view, would the 

Senate have the right to have standing to take the other 

side of this case, so we have the House on one side and 

the Senate on the other?

 MR. CLEMENT: No, Justice Kennedy, they 

wouldn't have the standing to be on the other side of 

this case. They would have standing to be on the same 

side of this case, and I think that's essentially what 

you had happen in the Chadha case.

 JUSTICE KENNEDY: Well, why not? They're 

concerned about the argument and you say that the House 

of Representatives standing alone can come into the 

court. Why can't the Senate standing alone come into 

court and intervene on the other side?

 MR. CLEMENT: It -- because it wouldn't have 

the authority to do so under Chadha. What -- Chadha 

makes the critical flipping of the switch that gives the 

House the ability to intervene as a party is that the 

Executive Branch declines to defend the statute. So if 

the Senate wants to come in and basically take -- share 

argument time or something as an amicus, they can, but 

there's no need for them to participate as -- as a 


 And I would want to emphasize that in the 

lower courts, participation by a party is absolutely 

critical. It doesn't make sense to have the party that 

wants to see the statute invalidated be in charge of the 

litigation in the district courts, because whether the 

statute is going to be invalidated is going to depend on 

what kind of record there is in the district court.

 It'd be one thing, Justice Scalia, if all 

that happened is they entered consent judgment. I 

suppose then the thing would end, and then in the long 

run, the Executive would be forced to do their job and 

actually defend these statutes -­

JUSTICE ALITO: Then why is -­

MR. CLEMENT: -- but if that's not going to 

happen -­

JUSTICE ALITO: Then why is it sufficient 

for one house to take the position that the statute is 

constitutional? The enactment of legislation requires 

both houses, and usually the signature of the President.

 MR. CLEMENT: Justice Alito, I think it 

makes perfect sense in this context, because every -­

each individual house has a constitutional rule before a 

statute is repealed. And so yes, it takes two of them 

to make the law. But each of their's participation is 

necessary to repeal a law. So if the Executive wants to 

go into court and effectively seek the judicial repeal 

of a law, it makes sense that one house can essentially 

vindicate its role in our constitutional scheme by 

saying, wait a minute, we passed that law; it can't be 

repealed without our participation.

 JUSTICE ALITO: Well, if the law is passed 

by a bare majority of one of the houses, then each 

member of that -- of that house who was part of the 

majority has the same interest in defending its 


 MR. CLEMENT: I don't think that's right 

after Raines, Justice Alito. In Raines, this Court 

carefully distinguished between the situation of an 

individual legislator and the situation of one of the 

houses as a whole. And it specifically said this might 

be a different case if we had that kind of vote. And 

that's what you have here. That's what you had in 


 And again, I do think that -- I mean, the 

only alternatives here are really to say that the 

Executive absolutely must enforce these laws, and if 

they don't, I mean, because after all -- you know, I --

I really don't understand why it's -- if they're not 

going to -- if they've made a determination that the law 

is unconstitutional, why it makes any sense for them to 

continue to enforce the law and put executive officers 

in the position of doing something that the President 

has determined is unconstitutional.

 I mean, think about the qualified immunity 

implications of that for a minute.

 So that's problematic enough. But if 

they're going to be able to do that and get anything 

more than a consent judgment, then the House is going to 

have to be able to play its role, and it's going to have 

to play the role of a party. An amicus just doesn't get 

it done. And I really think, in a sense, the Executive 

gives the game away by conceding that our participation 

as an amicus here is necessary to solve what would 

otherwise be a glaring adverseness problem.

 Because once you recognize that we can 

participate as an amicus, you've essentially recognized 

that there's nothing inherently executive about coming 

in and defending the constitutionality of an act of 

Congress. Or more to the point, there's nothing 

inherently unlegislative about coming in and making 

arguments in defense of the statute. 

And if that's critical, absolutely necessary 

to ensure there's an adverse presentation of the issues, 

well, there's no reason the House should have to do that 

with one hand tied behind its back. If its 

participation is necessary, it should participate as a 

full party. And as I say, that's critically important 

in the lower courts so they can take depositions, build 

a factual record, and allow for a meaningful defense of 

the statute.

 Because the alternative really puts the 

Executive Branch in an impossible position. It's a 

conflict of interest. They're the ones that are making 

litigation decisions to promote the defense of a statute 

they want to see invalidated. And if you want to see 

the problems with their position, look at Joint Appendix 

page 437. You will see the most anomalous motion to 

dismiss in the history of litigation: A motion to 

dismiss, filed by the United States, asking the district 

court not to dismiss the case.

 I mean, that's what you get under their view 

of the world, and that doesn't serve as separation of 


 JUSTICE KENNEDY: That -- that would give 

you intellectual whiplash.

 I'm going to have to think about that. 


 MR. CLEMENT: It -- it does. It does. And 

then -- you know -- and the last thing I'll say is, we 

saw in this case certain appeals were expedited, certain 

appeals weren't. They did not serve the interest of 

defending the statute, they served the distinct interest 

of the Executive.

 Thank you.

 CHIEF JUSTICE ROBERTS: Thank you, counsel.

 Ms. Jackson, you have 4 minutes remaining.



 MS. JACKSON: Thank you, Your Honor.

 I have five points I'll try to get to.

 Just very quickly, Justice Breyer, I only 

answered part of a question you asked me earlier, and I 

just want to say, the U.S. is asking this Court to tell 

it to pay money.

 It's not asking for relief.

 Justice Sotomayor, you asked me about how 

the issue could come up otherwise. I don't think I had 

a chance to mention, private party litigation, employees 

against employers, there's an interpleader action right 

now pending that was cited in the brief of the 287 

employers -- on page 32 at note 54 -- giving examples of 

how the issue of DOMA's constitutionality could arise in 

private litigation.

 In addition, State and local government 

employees might have, for example, FMLA claims in which 

the issue could arise. So I think that there are a 

number of ways in which the issue could arise.

 On the question of what the purpose of 1252 

could be if it wasn't to coincide with Article III 

injury that was raised by my -- my friend in his 

argument, I wonder whether the Court in Chadha wasn't 

saying something like this: 1252 was Congress's wish 

list. It was like -- like a citizen suit provision, to 

be exercised only to the extent that Article III power 

was there. That's a way to make sense out of what the 

Court is doing in the text and footnote there.

 As to the question of BLAG, which has been 

very fully discussed already, I do want to say that 

after-the-fact authorization seems to me quite troubling 

and inconsistent with this Court's approach in Summers 

v. Earth Institute, and in the -- I think it was in the 

plurality in Lujan, where you -- you -- if a party has 

standing, they need to have it in the first court that 

they're in, either when it starts or certainly before 


 And the rule as Justice Sotomayor observed 

just doesn't seem to say anything about authority to 

litigate. I think that in addition, the -- the big 

problem here is the injury being complained of is 

inconsistent with the separation of powers.

 Bowsher and Buckley make very clear that 

once the litigation is enacted, Congress's authority to 

supervise it is at an end. It goes over to the 

Executive Branch. And whether the Executive Branch does 

it well or badly in the view of Congress, it's in its 

domain. And separation of powers will not be meaningful 

if all it means is the Congress has to stay out unless 

it thinks that the President is doing it badly.

 So I think Article II helps give shape to 

what kinds of injuries alleged by parts of Congress can 

be cognizable.

 Finally, the three -- two or three cases 

cited by my colleague who last spoke: Coleman, Karcher 

and Arizona, all involved State level of government, 

where the Federal separation of powers doctrines 

articulated in cases like Bowsher and Buckley were not 

at issue.

 Unless there are other questions, I will sit 


 JUSTICE ALITO: Well, could I ask you this 

question: On the question of the House resolution -­

MS. JACKSON: Yes, sir.

 JUSTICE ALITO: -- if -- if a house -- if 

one of the houses passes a resolution saying that a 

particular group was always authorized to represent us, 

do you think it's consistent with the separation of 

powers for us to examine whether that's a correct 

interpretation of the rules of that House of Congress?

 MS. JACKSON: Yes, I do, Your Honor, because 

that resolution is not something operating only 

internally within the House. It is having effect in the 

world of the Article III courts, which this Court, in 

proceedings in it, is in charge of.

 Moreover, in the Smith case, the -- this 

Court said that when the Senate passed an after-the-fact 

interpretation of what a prior rule meant, 

notwithstanding the great respect given to the Senate's 

interpretation, this Court could reach and did reach an 

alternative interpretation of the meaning of the Senate 

rules, and I would urge this Court to do the same thing 


 JUSTICE BREYER: Maybe I -- as long as you 

have a minute, I -- what did you think of Mr. Clement's 

argument this way, that -- that the execution -- can 

I -­


JUSTICE BREYER: -- to execute the laws is 

in Article II, but where the President doesn't in a 

particular law, under those circumstances, a member of 

the legislature, appropriately authorized, has the 

constitutional power -- a power that is different than 

the average person being interested in seeing that the 

law is carried out; they can represent the power to 

vindicate the interest in seeing that the law is 

executed. And that's a special interest, existing only 

when the Executive declines to do so.

 MS. JACKSON: Your Honor, I think that when 

the Executive declines to do so, it is exercising its 

Take Care Clause authority. The Take Care Clause says 

that the Executive shall take care that the laws be 

faithfully executed. I think the laws include the 


 So I don't think the distinction offered by 

my colleague is -- is appropriate. I think it would 

result in a significant incursion on the separation of 

powers between the legislature and the Executive Branch, 

and would bring this -- the Federal courts into more 

controversies that have characteristics of interbranch 

confrontation, in which this Court has traditionally 

been very cautious.

 CHIEF JUSTICE ROBERTS: Ms. Jackson, before 

you sit down, I would like to note that you briefed and 

argued this case as amicus curiae at the invitation of 

the Court, and you have ably discharged the 

responsibility, for which you have the gratitude of the 


 MS. JACKSON: Thank you, Your Honor.


 We'll now take a very short break and turn 

to the merits.


 CHIEF JUSTICE ROBERTS: I meant that we 

would take a break, not that -- we will continue 

argument in the case on the merits.

 Mr. Clement?




 MR. CLEMENT: Mr. Chief Justice, and may it 

please the Court:

 The issue of same-sex marriage certainly 

implicates profound and deeply held views on both sides 

of the issue, but the legal question on the merits 

before this Court is actually quite narrow. On the 

assumption that States have the constitutional option 

either to define marriage in traditional terms or to 

recognize same-sex marriages or to adopt a compromise 

like civil unions, does the Federal Government have the 

same flexibility or must the Federal Government simply 

borrow the terms in State law?

 I would submit the basic principles of 

federalism suggest that as long as the Federal 

Government defines those terms solely for purposes of 

Federal law, that the Federal Government has the choice 

to adopt a constitutionally permissible definition or to 

borrow the terms of the statute.

 JUSTICE GINSBURG: Mr. Clement, the problem 

is if we are totally for the States' decision that there 

is a marriage between two people, for the Federal 

Government then to come in to say no joint return, no 

marital deduction, no Social Security benefits; your 

spouse is very sick but you can't get leave; people -­

if that set of attributes, one might well ask, what kind 

of marriage is this?

 MR. CLEMENT: And I think the answer to 

that, Justice Ginsburg, would be to say that that is a 

marriage under State law, and I think this Court's cases 

when it talks about the fundamental right to marriage, I 

take it to be talking about the State law status of 

marriage; and the question of what does that mean for 

purposes of Federal law has always been understood to be 

a different matter. And that's been true certainly in a 

number of situations under a number of statutes, so it's 

simply not the case that as long as you are married 

under State law you absolutely are going to be treated 

as married -­

JUSTICE GINSBURG: How about divorce? Same 

thing? That you can have a Federal notion of divorce, 

and that that doesn't relate to what the State statute 


 MR. CLEMENT: Well, we've never had that, 

Your Honor, and I think that there is a difference when 

it comes to divorce, because with divorce uniquely, you 

could have the -- possibility that somebody's married to 

two different people for purposes of State law and 

Federal law.

 But with the basic question of even whether 

to recognize the marriage -- or probably the best way to 

put it is just whether the Federal law treats you as 

married for a particular purpose or not, there always 

have been differences between the Federal law treatment 

and the State law treatment.

 The Federal treatment, for example, 

recognizes common law marriages in all States whereas a 

lot of States don't recognize common law marriages, but 

Federal law recognizes that for some purposes -- the 

Social Security Act, I think it's at page 4 of our 

brief. And -­

JUSTICE SOTOMAYOR: But only if the State 

recognizes it.

 MR. CLEMENT: No, I don't think that is true 

for purposes of that provision.

 JUSTICE SOTOMAYOR: And so there is a common 

law, Federal common law definition?

 MR. CLEMENT: That's my understanding, 

that's -- as discussed -­

JUSTICE SOTOMAYOR: I thought it was 

reverse, that if the State law recognized common law 

marriages, the Federal law -­

MR. CLEMENT: My understanding is that there 

is a Federal -- that the Federal law recognizes in -- in 

the Social Security context even if it doesn't; and in 

all events, there are other situations -- immigration 

context, tax consequences. For tax consequences, if you 

get a divorce every December, you know, for tax 

consequences, the State may well recognize that divorce. 

The Federal Government has long said, look, we are not 

going to allow you get a divorce every December just to 

get remarried in January so you'll have a filing tax 

status that works for you that is more favorable to you.

 So the Federal Government has always treated 

this somewhat distinctly; it always has its own efforts; 

and I do think for purposes of the federalism issue, it 

really matters that all DOMA does is take this term 

where it appears in Federal law and define it for 

purposes of Federal law. It would obviously be a 

radically different case if Congress had, in 1996, 

decided to try to stop States from defining marriage in 

a particular way or dictate how they would decide it in 

that way.

 JUSTICE KENNEDY: Well, it applies to over 

what, 1,100 Federal laws, I think we are saying. So 

it's not -- it's -- it's -- I think there is quite a bit 

to your argument that if the tax deduction case, which 

is specific, whether or not if Congress has the power it 

can exercise it for the reason that it wants, that it 

likes some marriage it does like, I suppose it can do 


 But when it has 1,100 laws, which in our 

society means that the Federal Government is intertwined 

with the citizens' day-to-day life, you are at -- at 

real risk of running in conflict with what has always 

been thought to be the essence of the State police 

power, which is to regulate marriage, divorce, custody.

 MR. CLEMENT: Well, Justice Kennedy, two 

points. First of all, the very fact that there are 

1,100 provisions of Federal law that define the terms 

"marriage" and "spouse" goes a long way to showing that 

Federal law has not just stayed completely out of these 

issues. It's gotten involved in them in a variety of 

contexts where there is an independent Federal power 

that supported that.

 Now, the second thing is the fact that DOMA 

involves all 1,100 statutes at once is not really a sign 

of its irrationality. It is a sign that what it is, and 

all it has ever purported to be, is a definitional 

provision. And like every other provision in the 

Dictionary Act, what it does is it defines the term 

wherever it appears in Federal law in a consistent way. 

And that was part and parcel of what Congress was trying 

to accomplish with DOMA in 1996.

 JUSTICE KENNEDY: Well, but it's not really 

uniformity because it regulates only one aspect of 

marriage. It doesn't regulate all of marriage.

 MR. CLEMENT: Well, that's true but I don't 

think that's a mark against it for federalism purposes, 

and it -- it addressed a particular issue at a point, 

remember in 1996, Congress is addressing this issue 

because they are thinking that the State of Hawaii 

through its judicial action is about to change the 

definition of marriage from a way that it had been 

defined in every jurisdiction in the United States. And 

what that meant is that when Congress passed every one 

of the statutes affected by DOMA's definition, the 

Congress that was passing that statute had in mind the 

traditional definition.

 And so Congress in 1996 at that point says, 

the States are about to experiment with changing this, 

but the one thing we know is all these Federal statutes 

were passed with the traditional definition in mind. 

And if rational basis is the test, it has to be rational 

for Congress then to say, well, we are going to reaffirm 

what this word has always meant for purposes of Federal 


 JUSTICE ALITO: Suppose we look just at the 

estate tax provision that's at issue in this case, which 

provides specially favorable treatment to a married 

couple as opposed to any other individual or economic 

unit. What was the purpose of that? Was the purpose of 

that really to foster traditional marriage, or was 

Congress just looking for a convenient category to 

capture households that function as a unified economic 


 MR. CLEMENT: Well, I think for these 

purposes actually, Justice Alito, if you go back to the 

beginning of the estate tax deduction, what Congress was 

trying to do was trying to provide uniform treatment of 

taxpayers across jurisdictions, and if you look at the 

brief that Senator Hatch and some other Senators filed, 

they discussed this history, because what was happening 

in 1948 when this provision was initially put into 

Federal law was you had community property States and 

common law States, and actually there was much more 

favorable tax treatment if you were in a community law 

State than a common law State.

 And Congress didn't want to have an 

artificial incentive for States to move from common law 

to community property; it wanted to treat citizens the 

same way no matter what State they were in. So it said, 

we will give a uniform Federal deduction based on 

marriage, and I think what that shows is that when the 

Federal Government gets involved in the issue of 

marriage, it has a particularly acute interest in 

uniform treatment of people across State lines.

 So Ms. Windsor wants to point to the 

unfairness of the differential treatment of treating two 

New York married couples differently, and of course for 

purposes of New York law that's exactly the right focus, 

but for purposes of Federal law it's much more rational 

for Congress to -- to say, and certainly a rational 

available choice, for Congress to say, we want to treat 


the same-sex couple in New York the same way as the 

committed same-sex couple in Oklahoma and treat them the 

same. Or even more to the point for purposes -­

JUSTICE SOTOMAYOR: But that's begging the 

question, because you are treating the married couples 


 MR. CLEMENT: Well -­

JUSTICE SOTOMAYOR: You are saying that New 

York's married couples are different than Nebraska's.

 MR. CLEMENT: But -- but the only way -­

JUSTICE SOTOMAYOR: I picked that out of a 

hat. But the point is that there is a difference.

 MR. CLEMENT: But the -- the only way they 

are different is because of the way the State law treats 

them. And just to be clear how -- you know, what this 

case is about, and how sort of anomalous the -- the 

treatment, the differential treatment in two States is, 

is this is not a case that is based on a marriage 

license issued directly by the State of New York after 

2011 when New York recognized same-sex marriage. This 

is -- the status of Ms. Windsor as married depends on 

New York's recognition of an Ontario marriage 

certificate issued in 2007.

 JUSTICE BREYER: You would say it would be 

the same thing if the State passed a law -- Congress 

passes a law which says, well, there's some States -­

they all used to require 18 as the age of consent. Now, 

a lot of them have gone to 17. So if you're 17 when you 

get married, then no tax deduction, no medical, no 


 Or some States had a residence requirement 

of a year, some have six months, some have four months. 

So Congress passes a law that says, well unless you're 

there for a year, no medical deduction, no tax thing, no 

benefits of any kind, that that would be perfectly 

constitutional. It wouldn't be arbitrary, it wouldn't 

be random, it wouldn't be capricious.

 MR. CLEMENT: Well, I guess I would -- I 

would say two things. I would say that the first 

question would be what's the relevant level of scrutiny 

and I assume the level of scrutiny for the things -­

JUSTICE BREYER: No, I just want your bottom 

line. The bottom line here is we can imagine -- you 

know, I can make them up all day. So can you -­

differences between -­


 JUSTICE BREYER: Differences between States 

have nothing to do with anything, you know, residence 

requirements, whether you have a medical exam, 

whether -- we can think them up all day -- how old you 

are. And Congress just passes a law which takes about, 

let's say, 30 percent of the people who are married in 

the United States and says no tax deduction, no this, no 

that, no medical -- medical benefits, none much these 

good things, none of them for about 20, 30 percent of 

all of the married people.

 Can they do that?

 MR. CLEMENT: Again, I think the right way 

to analyze it would be, you know, is -- is there any 

distinction drawn that implicates what level of scrutiny 

is implicated. If the level of scrutiny is a rational 

basis, then my answer to you would be, yes, they can do 

that. I mean, we'd have to talk about what the rational 

basis would be -­

JUSTICE BREYER: No, there isn't any. I'm 

trying to think of examples, though I just can't imagine 

what it is.

 MR. CLEMENT: Well, I -- I think the uniform 

treatment of individuals across State lines -­

JUSTICE BREYER: All right. So you're 

saying uniform treatment's good enough no matter how odd 

it is, no matter how irrational. There is nothing but 

uniformity. We could take -- no matter. Do you see 

what I'm -- where I'm going?

 MR. CLEMENT: No, I see exactly where you're 

going, Justice Breyer.



 MR. CLEMENT: And -- and obviously, every 

one of those cases would have to be decided on its own. 

But I do think there is a powerful interest when the 

Federal Government classifies people -­

JUSTICE BREYER: Yes, okay. Fine.

 MR. CLEMENT: There's a powerful interest in 

treating -­

JUSTICE BREYER: Fine, but once -- the first 

part. Every one of those cases has to be decided on its 

own, okay? Now, what's special or on its own that 

distinguishes and thus makes rational, or whatever basis 

you're going to have here, treating the gay marriage 


 MR. CLEMENT: Well, again, if we're -- if 

we're coming at this from the premise that the States 

have the option to choose, and then we come at this from 

the perspective that Congress is passing this not in a 

vacuum, they're passing this in 1996. And what they're 

confronting in 1996 is the prospect that one State, 

through its judiciary, will adopt same-sex marriage and 

then by operation of the through full faith and credit 

law, that will apply to any -- any couple that wants to 

go there.

 And the State that's thinking about doing 

this is Hawaii; it's a very nice place to go and get 

married. And so Congress is worried that people are 

going to go there, go back to their home jurisdictions, 

insist on the recognition in their home jurisdictions of 

their same-sex marriage in Hawaii, and then the Federal 

Government will borrow that definition, and therefore, 

by the operation of one State's State judiciary, 

same-sex marriage is basically going to be recognized 

throughout the country.

 And what Congress says is, wait a minute. 

Let's take a timeout here. This is a redefinition of an 

age-old institution. Let's take a more cautious 

approach where every sovereign gets to do this for 

themselves. And so Section 2 of DOMA says we're going 

to make sure that on full faith and credit principles 

that a decision of one State -­

JUSTICE SOTOMAYOR: But what gives the 

Federal Government the right to be concerned at all at 

what the definition of marriage is? Sort of going in a 

circle. You're saying -- you're saying, we can create 

this special category -- men and women -- because the 

States have an interest in traditional marriage that 

they're trying to protect. How do you get the Federal 

Government to have the right to create categories of 

that type based on an interest that's not there, but 

based on an interest that belongs to the States?

 MR. CLEMENT: Well, at least two -- two 

responses to that, Justice Sotomayor. First is that one 

interest that supports the Federal Government's 

definition of this term is whatever Federal interest 

justifies the underlying statute in which it appears. 

So, in every one of these statutes that affected, by 

assumption, there's some Article I Section 8 

authority -­

JUSTICE SOTOMAYOR: So they can create a 

class they don't like -- here, homosexuals -- or a class 

that they consider is suspect in the marriage category, 

and they can create that class and decide benefits on 

that basis when they themselves have no interest in the 

actual institution of marriage as married. The State's 

control that.

 MR. CLEMENT: Just to clarify, Justice 

Sotomayor, I'm not suggesting that the Federal 

Government has any special authority to recognize 

traditional marriage. So if -- the assumption is that 

nobody can do it. If the States can't do it either, 

then the Federal Government can't do it. So the Federal 

Government -­


assuming -­

MR. CLEMENT: Okay. So then the question 

is -­

JUSTICE SOTOMAYOR: Assuming I assume the 

States can -­

MR. CLEMENT: So then, if the States can -­

JUSTICE SOTOMAYOR: -- what creates the 

right -­

MR. CLEMENT: -- the Federal Government has 

sort of two sets of authorities that give it sort of a 

legitimate interest to wade into this debate. Now, one 

is whatever authority gives rise to the underlying 

statute. The second and complementary authority is 

that, you know, the Federal Government recognizes that 

it's a big player in the world, that it has a lot of 

programs that might give States incentives to change the 

rules one way or another.

 And the best way -- one way to stay out of 

the debate and let just the -- the States develop this 

and let the democratic process deal with this is to just 

say, look, we're going to stick with what we've always 

had, which is traditional definition. We're not going 

to create a regime that gives people an incentive and 

point to Federal law and say, well, another reason you 

should have same-sex marriage is because then you'll get 

a State tax deduction. They stayed out of it. They've 

said, look, we're -­

JUSTICE KENNEDY: But I -- I understand the 

logic in your argument. I -- I hadn't thought of the 

relation between Section 2 and Section 3 in the way you 

just said. You said, now Section 2 was in order to help 

the States. Congress wanted to help the States. But 

then Section 3, that Congress doesn't help the States 

which have come to the conclusion that gay marriage is 

lawful. So that's inconsistent.

 MR. CLEMENT: No, no. They treat them -­

which is to say they -- they are preserving, they are 

helping the States in the sense of having each sovereign 

make this decision for themselves.

 JUSTICE KENNEDY: We're helping the States 

do -- if they do what we want them to, which is -- which 

is not consistent with the historic commitment of 

marriage and -- and of questions of -- of the rights of 

children to the State.

 MR. CLEMENT: With respect, Justice Kennedy, 

that's not right. No State loses any benefits by 

recognizing same-sex marriage. Things stay the same. 

What they don't do is they don't sort of open up an 

additional class of beneficiaries under their State law 

for -- that get additional Federal benefits. But things 

stay the same. And that's why in this sense -­

JUSTICE GINSBURG: They're not -- they're 

not a question of additional benefits. I mean, they 

touch every aspect of life. Your partner is sick. 

Social Security. I mean, it's pervasive. It's not as 

though, well, there's this little Federal sphere and 

it's only a tax question.

 It's -- it's -- as Justice Kennedy said, 

1100 statutes, and it affects every area of life. And 

so he was really diminishing what the State has said is 

marriage. You're saying, no, State said two kinds of 

marriage; the full marriage, and then this sort of skim 

milk marriage.


 MR. CLEMENT: With respect, Justice 

Ginsburg, that's not what the Federal Government is 

saying. The Federal Government is saying that within 

its own realm in Federal policies, where we assume that 

the Federal Government has the authority to define the 

terms that appear in their own statute, that in those 

areas, they are going to have their own definition. And 

that's -­

JUSTICE KAGAN: Mr. Clement, for the most 

part and historically, the only uniformity that the 

Federal Government has pursued is that it's uniformly 

recognized the marriages that are recognized by the 

State. So, this was a real difference in the uniformity 

that the Federal Government was pursuing. And it 

suggests that maybe something -- maybe Congress had 

something different in mind than uniformity.

 So we have a whole series of cases which 

suggest the following: Which suggest that when Congress 

targets a group that is not everybody's favorite group 

in the world, that we look at those cases with some -­

even if they're not suspect -- with some rigor to say, 

do we really think that Congress was doing this for 

uniformity reasons, or do we think that Congress's 

judgment was infected by dislike, by fear, by animus, 

and so forth?

 I guess the question that this statute 

raises, this statute that does something that's really 

never been done before, is whether that sends up a 

pretty good red flag that that's what was going on.

 MR. CLEMENT: A couple of responses, Justice 

Kagan. First of all, I think I would take issue with 

the premise, first of all, that this is such an unusual 

Federal involvement on an issue like marriage. If you 

look at historically, not only has the Federal 

Government defined marriage for its own purposes 

distinctly in the context of particular -- particular 

programs, it's also intervened in -- in other areas, 

including in-state prerogatives. I mean, there's a 

reason that four state constitutions include a 

prohibition on polygamy. It's because the Federal 

Congress insisted on them. There is a reason that, in 

the wake of the Civil War and in Reconstruction, 

Congress specifically wanted to provide benefits for 

spouses of freed slaves who fought for the Union.

 In order to do it, it essentially had to 

create state law marriages, because in the Confederacy, 

the slaves couldn't get married. So they developed 

their own State -- essentially, a Federal, sort of, 

condition to define who was married under those laws. 

So where there was the needs in the past to get 

involved, the Federal Government has got involved.

 The other point I would make -- but I also 

eventually want to get around to the animus point -- but 

the other point I would make is: When you look at 

Congress doing something that is unusual, that deviates 

from the way they -- they have proceeded in the past, 

you have to ask, Well, was there good reason? And in a 

sense, you have to understand that, in 1996, something's 

happening that is, in a sense, forcing Congress to 

choose between its historic practice of deferring to the 

States and its historic practice of preferring 


 Up until 1996, it essentially has it both 

ways: Every State has the traditional definition. 

Congress knows that's the definition that's embedded in 

every Federal law. So that's fine. We can defer.

 Okay. 1996 -­

JUSTICE KAGAN: Well, is what happened in 

1996 -- and I'm going to quote from the House Report 

here -- is that "Congress decided to reflect an honor of 

collective moral judgment and to express moral 

disapproval of homosexuality."

 Is that what happened in 1996?

 MR. CLEMENT: Does the House Report say 

that? Of course, the House Report says that. And if 

that's enough to invalidate the statute, then you should 

invalidate the statute. But that has never been your 

approach, especially under rational basis or even 

rational basis-plus, if that is what you are suggesting.

 This Court, even when it's to find more 

heightened scrutiny, the O'Brien case we cite, it 

suggests, Look, we are not going to strike down a 

statute just because a couple of legislators may have 

had an improper motive. We're going to look, and under 

rational basis, we look: Is there any rational basis 

for the statute?

 And so, sure, the House Report says some 

things that we are not -- we've never invoked in trying 

to defend the statute.

 But the House Report says other things, like 

Congress was trying to promote democratic 

self-governance. And in a situation where an unelected 

State judiciary in Hawaii is on the verge of deciding 

this highly contentious, highly divisive issue for 

everybody, for the States -- for the other States and 

for the Federal Government by borrowing principle, it 

makes sense for Congress -­

JUSTICE KENNEDY: Well, but your statute 

applies also to States where the voters have decided it.

 MR. CLEMENT: That's true. I -- but again, 

I don't know that that fact alone makes it irrational. 

And I suppose if that's what you think -­

JUSTICE KENNEDY: Just to be clear, I think 

your answer is fair and rational.

 We've switched now from Federal power to 

rationality. There is -- there is a difference. We're 

talking -- I think we are assuming now that there is 

Federal power and asking about the degree of scrutiny 

that applies to it. Or are we going back to whether 

there is a Federal power? They are -- they are 


 MR. CLEMENT: I think -- I think there is so 

clearly is a Federal power because DOMA doesn't define 

any term that appears anywhere other than in a Federal 

statute that we assume that there is Federal power for. 

And if there is not Federal power for the statutes in 

which these terms appear, that is a problem independent 

of DOMA, but it is not a DOMA problem. So I will assume 

we have Federal power.

 Then the question is -­

JUSTICE KENNEDY: Well, I think -- I think 

it is a DOMA problem. The question is whether or not 

the Federal government, under our federalism scheme, has 

the authority to regulate marriage.

 MR. CLEMENT: And it doesn't have the 

authority to regulate marriages, as such, but that's not 

what DOMA does. DOMA provides certain -- DOMA defines a 

term as it appears in Federal statutes, many of those 

Federal statutes provide benefits. Some of those 

Federal statutes provide burdens. Some of those Federal 

statutes provide disclosure obligations. It appears in 

lots of places, and if any one of -­

JUSTICE ALITO: Well, Congress could have 

achieved exactly what it achieved under Section 3 by 

excising the term "married" from the United States Code 

and replacing it with something more neutral. It could 

have said "certified domestic units," and then defined 

this in exactly the way that Section 3 -- exactly the 

way DOMA defines "marriage."

 Would that make a difference? In that 

instance, the Federal Government wouldn't be purporting 

to say who is married and who is not married; it would 

be saying who is entitled to various Federal benefits 

and burdens based on a Federal definition.

 MR. CLEMENT: That would make no difference, 

Justice Alito. It does -- the hypothetical helpfully 

demonstrates, though, that when the Federal Government 

is defining this term as it appears in the Federal Code, 

it is not regulating marriage as such. And it is 

important to recognize that people that are married in 

their State, based on either the legislative acts or by 

judicial recognition, remain married for purposes of 

State law.

 JUSTICE BREYER: When you started, you 

started by, I think, agreeing -- maybe not -- that 

uniformity in and of itself with nothing else is not 

likely to prove sufficient, at least if it's rational 

basis-plus. And -- and why? Because we can think of 

weird categories that are uniform.

 So you say, Look at it on the merits. Now 

that's where you are beginning to get. But so far, what 

I've heard is, Well, looking at it on the merits, there 

is certainly a lot of harms. And on the plus side what 

there is, is, one, We don't want courts deciding this. 

But of course, as was just pointed out, in some States 

it's not courts, it's the voters.

 Then you say, Ah, but we want -- there are 

too many courts deciding it. Now, is -- too many courts 

might decide it. Now what else is there? What else? 

want to -- I want to be able to have a list, you know, 

of really specific things that you are saying justify 

this particular effort to achieve uniformity. And I 

want to be sure I'm not missing any.

 And so far, I've got those two I mentioned. 

What else?

 JUSTICE SCALIA: I didn't understand that 

courts were so central to your position. I -- I thought 

you didn't want the voters in one State to dictate to 

other States any more than you would want the courts in 

one State to dictate to other States.

 MR. CLEMENT: Well, I -- I think that's 

true, Justice Scalia. The point about the courts, 

though, is -- I mean, it's particularly relevant here.

 JUSTICE BREYER: That means courts -- the 

courts, they do dictate in respect to time. They 

dictate in respect to age. They dictate in respect to 

all kinds of things. And what I'm looking for is: 

What, in your opinion, is special about this homosexual 

marriage that would justify this, other than this kind 

of pure uniformity, if there is such a thing?

 MR. CLEMENT: Well, let me -- let me just 

get on record that -- to take issue with one of the 

premises of this, which is we are at somehow rational 

basis-plus land, because I would suggest strongly that 

three levels of scrutiny are enough.

 But in all events, if you are thinking about 

the justifications that defend this statute, that 

justify the statute, they are obviously in the brief. 

But it's uniformity -- but it's not -- it's not just 

that Congress picked this, you know, We need a uniform 

term, let's pick this out of the air.

 They picked the traditional definition that 

they knew reflected the underlying judgments of every 

Federal statute on the books at that point. They knew 

it was the definition that had been tried in every 

jurisdiction in the United States and hadn't been tried 

anywhere until 2004. And then, of course, it was, as 

they correctly predicted, a judicial decision.

 And in this context, in particular, they are 

thinking about an individual -- I mean, this couple goes 

to Ontario, they get the -- they get a marriage 

certificate. A couple could -- from Oklahoma, could 

have gotten -- gone to Ontario and gotten a marriage 

certificate that same day and gone back to Oklahoma. 

And from the Federal law perspective, there is certainly 

a rational basis in treating those two couples the same 


 If I could reserve my time.


Mr. Clement.

 General Verrilli?




 GENERAL VERRILLI: Mr. Chief Justice, and 

may it please the Court:

 The equal protection analysis in this case 

should focus on two fundamental points: First, what 

does Section 3 do; and second, to whom does Section 3 do 


 What Section 3 does is exclude from an array 

of Federal benefits lawfully married couples. That 

means that the spouse of a soldier killed in the line of 

duty cannot receive the dignity and solace of an 

official notification of next of kin. 

CHIEF JUSTICE ROBERTS: Suppose your -- you 

agree that Congress could go the other way, right? 

Congress could pass a new law today that says, We will 

give Federal benefits. When we say "marriage" in 

Federal law, we mean committed same-sex couples as well, 

and that could apply across the board.

 Or do you think that they couldn't do that?

 GENERAL VERRILLI: We think that wouldn't 

raise an equal protection problem like this statute 

does, Mr. Chief Justice.

 CHIEF JUSTICE ROBERTS: Well, no, my point 

is: It wouldn't -- you don't think it would raise a 

federalism problem either, do you?

 GENERAL VERRILLI: I don't think it would 

raise a federalism problem.


 GENERAL VERRILLI: And I -- but the key for 

the -- for the -- our purposes is that, in addition to 

denying these fundamental important -- fundamentally 

important benefits, is who they are being denied to.

 CHIEF JUSTICE ROBERTS: So just to be clear, 

you don't think there is a federalism problem with what 

Congress has done in DOMA?

 GENERAL VERRILLI: We -- no, we don't, 

Mr. Chief Justice. 


 GENERAL VERRILLI: The question is: What is 

the constitutionality for equal protection purposes, and 

because it's unconstitutional and it's embedded into 

numerous Federal statutes, those statutes will have an 

unconstitutional effect. But it's the equal protection 

violation from the perspective of the United States 

that -­

JUSTICE KENNEDY: You think Congress can use 

its powers to supercede the traditional authority and 

prerogative of the States to regulate marriage in all 

respects? Congress could have a uniform definition of 

marriage that includes age, consanguinity, etc., etc.?

 GENERAL VERRILLI: No, I'm not saying that, 

Your Honor. I think if Congress passed such a statute, 

then we would have to consider how to defend it. But 

that's not -­

JUSTICE KENNEDY: Well, but then there is a 

federalism interest at stake here, and I thought you 

told the Chief Justice there was not.

 GENERAL VERRILLI: Well, with respect to 

Section 3 of DOMA, the problem is an equal protection 

problem from the point of view of the United States.

 JUSTICE KAGAN: Yes, but, General, surely 

the question of what the Federal interests are and 

whether those Federal interests should take account of 

the historic State prerogatives in this area is relevant 

to the equal protection inquiry?

 GENERAL VERRILLI: It's central to the 

inquiry, Justice Kagan. I completely agree with that 


 CHIEF JUSTICE ROBERTS: Oh, so it would be 

central to the inquiry if Congress went the other way, 


 GENERAL VERRILLI: Well, the difference is 

what Section 3 does is impose this exclusion from 

Federal benefits on a class that has undeniably been 

subject to a history of terrible discrimination on the 

basis of -­

CHIEF JUSTICE ROBERTS: I understand that. 

That's your equal protection argument. It's not very 

responsive to my concern I'm trying to get an answer to. 

You don't think federalism concerns come into play at 

all in this, right?

 GENERAL VERRILLI: Well, I think -- I just 

want to clarify. The equal protection question would be 

different than the other circumstance. That's a matter 

of -­

CHIEF JUSTICE ROBERTS: I know the equal 

protection argument. 

GENERAL VERRILLI: But the federalism 

concerns come into play in the following way: In that 

Mr. Clement has made the argument that, look, whatever 

States can do in terms of recognizing marriage or not 

recognizing marriage, the Federal Government has 

commensurate authority to do or not do. We don't think 

that's right as a matter of our equal protection 

analysis because we don't think the Federal Government 

should be thought of as the 51st state. States, as we 

told the Court, yesterday we believe heightened scrutiny 

ought to apply even to the State decisions -­

JUSTICE KENNEDY: But you're -- you are 

insisting that we get to a very fundamental question 

about equal protection, but we don't do that unless we 

assume the law is valid otherwise to begin with. And we 

are asking is it valid otherwise. What is the Federal 

interest in enacting this statute and is it a valid 

Federal interest assuming, before we get to the equal 

protection analysis?

 GENERAL VERRILLI: Yeah. We think whatever 

the outer bounds of the Federal Government's authority, 

and there certainly are outer bounds, would be, apart 

from the equal protection violation, we don't think that 

Section 3 apart from equal protection analysis raises a 

federalism problem. But we do think the federalism 

analysis does play into the equal protection analysis 

because the Federal -- the Federal Government is not the 

51st state for purposes of --of the interests that Mr. 

Clement has identified on behalf of BLAG.

 JUSTICE ALITO: Can I take you back to the 

example that you began with, where a member of the 

military is injured. So let's say three soldiers are 

injured and they are all in same-sex relationships, and 

in each instance the other partner in this relationship 

wants to visit the soldier in a hospital.

 First is a spouse in a State that allows 

same-sex marriage, the second is a domestic partner in a 

State that an allows that but not same-sex marriage, the 

third is in an equally committed loving relationship in 

a State that doesn't involve either. Now, your argument 

is that under Federal law the first would be admitted, 

should be admitted, but the other two would be kept out?

 GENERAL VERRILLI: The question in the case, 

Justice Alito is whether Congress has a sufficiently 

persuasive justification for the exclusion that it has 

imposed. And it -- and it does not. The only way in 

which -- that BLAG's arguments for the constitutionality 

of this statute have any prospect of being upheld is if 

the Court adopts the minimal rationality standard of Lee 


JUSTICE ALITO: Let me take you back to the 

example. Your -- your position seems to me, yes, one 

gets in, two stay out, even though your legal arguments 

would lead to the conclusion that they all should be 

treated the same.

 GENERAL VERRILLI: Well, the question before 

the Court is whether the exclusion that DOMA imposes 

violates equal protection, and it does violate equal 

protection because you can't treat this as though it 

were just a distinction between optometrists and 

ophthalmologists, as the Lee Optical case did. This is 

a different kind of a situation because the 

discrimination here is being visited on a group that has 

historically been subject to terrible discrimination on 

the basis of personal -­

JUSTICE SCALIA: But that's -- that's the 

same in the example that we just gave you, that 

discrimination would have been visited on the same 

group, and you say there it's okay.

 GENERAL VERRILLI: No, I didn't say that. 

said it would be subject to equal protection analysis 

certainly, and there might be a problem.

 JUSTICE SCALIA: So you think that's bad as 

well, that all three of those has to be treated the 

same, despite State law about marriage. 

GENERAL VERRILLI: They have to be analyzed 

under equal protections principles, but whatever is true 

about the other situations, in the situation in which 

the couple is lawfully married for purposes of State law 

and the exclusion is a result of DOMA itself, the 

exclusion has to be justified under this Court's equal 

protection analysis, and DOMA won't do it.

 JUSTICE SOTOMAYOR: General Verrilli, I have 

a question. You think, I think from your brief 

yesterday and today, that on some level sexual 

orientation should be looked on an intermediate standard 

of scrutiny?


 JUSTICE SOTOMAYOR: All right, heightened in 

some way. Going back to the Chief's question about a 

law that was passed recognizing common law 

heterosexual -- homosexual marriages. I think even 

under your theory that might be suspect because -- that 

law might be suspect under equal protection, because 

once we say sexual orientation is suspect, it would be 

suspect whether it's homosexual or heterosexual. The 

law favors homosexuals; it would be suspect because it's 

based on sexual orientation.

 GENERAL VERRILLI: You would have -- you 

would have to impose the heightened scrutiny equal 

protection analysis, sure.

 JUSTICE SOTOMAYOR: Exactly. And so when we 

decided race was a suspect class, people who are not 

blacks have received -­

GENERAL VERRILLI: Yes, that's certainly -­

JUSTICE SOTOMAYOR: -- strict scrutiny on 

whether the use of race as a class, whether they are 

white or a black, is justified by a compelling interest.

 GENERAL VERRILLI: That is certainly true, 

Your Honor. If I could turn to the interest that BLAG 

has actually identified as supporting this statute, I 

think there are -- there are -- I think that you can see 

what the problem is here.

 Now, this statute is not called the Federal 

Uniform Marriage Benefits Act; it's called the Defense 

of Marriage Act. And the reason for that is because the 

statute is not directed at uniformity in the 

administration of Federal benefits. All -- there is two 

equally uniform systems, the system of respecting the 

State choices and the system of -- that BLAG is 

advocating here.

 And what BLAG's got to do in order to 

satisfy equal protection scrutiny is justify the choice 

between one and the other, and the difference between 

the two is that the Section 3 choice is a choice that -­

Section 3 choice is a choice that discriminates. So 

it's not simply a matter sufficient to say, well, 

uniformity is enough. Section 3 discriminates.

 CHIEF JUSTICE ROBERTS: So as soon as one 

State adopted same sex marriage, the definition of 

marriage throughout the Federal code had to change? 

Because there is no doubt that up until that point every 

time Congress said "marriage" they understood they were 

acting under the traditional definition of marriage.

 GENERAL VERRILLI: Well, I don't know, 

Mr. Chief Justice, why you wouldn't assume that what 

Congress was doing when it enacted a statute, 

particularly a statute that had the word "marriage" in 

it, was assuming that the normal rule that applies in 

the vast majority of circumstances of deference to the 

State definition of marriage would be the operative 


 CHIEF JUSTICE ROBERTS: So you don't think 

that when Congress said "marriage" in every one of these 

provisions that they had in mind same-sex marriages?

 GENERAL VERRILLI: No, but they may well 

have had in mind deferring to the normal State 

definition of marriage, whatever it is. Not that they 

were making the specific choice that my friend suggested 

they were. But whatever is the case, when Congress 

enacted DOMA that choice of exclusion has to be 

justified under appropriate equal protection principles.

 So the issue of uniformity just doesn't get 

you there, because there is no uniformity advantage to 

Section 3 of DOMA as opposed to the traditional rule. 

The issue of administration doesn't get you there. I 

mean, at a very basic level administrative concerns 

ought not be an important enough interest to justify 

this kind of a discrimination under the Equal Protection 


 But even if you look at them, there are no 

genuine administrative benefits to DOMA. If anything, 

Section 3 of DOMA makes Federal administration more 

difficult, because now the Federal Government has to 

look behind valid state marriage licenses and see 

whether they are about State marriages that are out of 

compliance with DOMA.

 It's an additional administrative burden. 

So there is no -- there is no administrative -- there is 

no administrative advantage to be gained here by what -­

by what Congress sought to achieve. And the fundamental 

reality of it is, and I think the House report makes 

this glaringly clear, is that DOMA was not enacted for 

any purpose of uniformity, administration, caution, 

pausing, any of that. 

It was enacted to exclude same-sex married, 

lawfully married couples from Federal benefit regimes 

based on a conclusion that was driven by moral 

disapproval. It is quite clear in black and white in 

the pages of the House report which we cite on page 38 

of our brief -­

CHIEF JUSTICE ROBERTS: So that was the view 

of the 84 Senators who voted in favor of it and the 

President who signed it? They were motivated by animus?

 GENERAL VERRILLI: No, Mr. Chief Justice. 

We quoted our -- we quoted the Garrett concurrence in 

our brief, and I think there is a lot of wisdom there, 

that it may well not have been animus or hostility. It 

may well have been what Garrett described as the simple 

want of careful reflection or an instinctive response to 

a class of people or a group of people who we perceive 

as alien or other.

 But whatever the explanation, whether it's 

animus, whether it's that -- more subtle, more 

unthinking, more reflective kind of discrimination, 

Section 3 is discrimination. And I think it's time for 

the Court to recognize that this discrimination, 

excluding lawfully married gay and lesbian couples from 

Federal benefits, cannot be reconciled with our 

fundamental commitment to equal treatment under law. 

This is discrimination in its most very 

basic aspect, and the House Report, whether -- and I 

certainly would not suggest that it was universally 

motivated by something other than goodwill -- but the 

reality is that it was an expression of moral 

disapproval of exactly the kind that this Court said in 

Lawrence would not justify the law that was struck down 


 JUSTICE SOTOMAYOR: General, your bottom 

line is, it's an equal protection violation for the 

Federal Government, and all States as well?

 GENERAL VERRILLI: Yes, Your Honor, and 

that's the -- we took the position we took yesterday 

with respect to marriage -- the analysis -­

JUSTICE SOTOMAYOR: Is there any argument 

you can make to limit this to this case, vis-à-vis the 

Federal Government and not the States?

 GENERAL VERRILLI: Well, as we said 

yesterday, we think it's an open question with respect 

to State recognition of marriage, and they may well be 

able to advance interests -- they may be able to advance 

it. I guess I shouldn't say "may well," because I do 

think it would be difficult, as we said yesterday. They 

may be able to advance interests that would satisfy 

heightened scrutiny and justify non-recognition -­

JUSTICE BREYER: Then yet -- but here -­

GENERAL VERRILLI: But -- but here, the 

Federal Government's not in the same position because as 

BLAG concedes, the Federal Government at the most can 

act at the margins in influencing these decisions about 

marriage and child rearing at the State level. And the 

Second Circuit and the First Circuit both concluded that 

there's no connection at all, and that's of course 

because Section 3 doesn't make it any more likely that 

unmarried men and women in States -- that -- unmarried 

men and women who confront an unplanned pregnancy are 

going to get married.

 And -- and elimination of Section 3 wouldn't 

make it any less likely that unmarried men and women are 

going to get married. It doesn't have any effect at 

all. It doesn't have any connection at all. So it's 

not at the margins. There's no interest at all at 

this -- in DOMA in promoting -­

JUSTICE BREYER: Or if there's no 

interest -- I mean, I'm back where we were yesterday. 

It seems to me, forgetting your -- your preferable 

argument, it's a violation of equal protection 

everywhere. Well, if it is, then all States have to 

have something like pacts. And if they have to have 

something like pacts, then you say then they also have 

to allow marriage.

 So then are you not arguing they all have to 

allow marriage? And then you say no. So with that 

point -­

GENERAL VERRILLI: But our point here, 

Justice Breyer, is that whatever -- may I finish?

 Thank you.

 Whatever the issue is, with -- whatever the 

outcome is with respect to States and marriage, that the 

Federal Government's interest in advancing those 

justifications through Section 3 of DOMA is so 

attenuated that two Federal courts of appeals have seen 

it as non-existent, and it cannot justify Section 3.

 CHIEF JUSTICE ROBERTS: Thank you, General.

 Ms. Kaplan?



 MS. KAPLAN: Mr. Chief Justice, and may it 

please the Court:

 I'd like to focus on why DOMA fails even 

under rationality review. Because of DOMA, many 

thousands of people who are legally married under the 

laws of nine sovereign States and the District of 

Columbia are being treated as unmarried by the Federal 

Government solely because they are gay. 

These couples are being treated as unmarried 

with respect to programs that affect family stability, 

such as the Family Leave Act, referred to by Justice 

Ginsburg. These couples are being treated as unmarried 

for purposes of Federal conflict of interest rules, 

election laws and anti-nepotism and judicial recusal 


 And my client was treated as unmarried when 

her spouse passed away, so that she had to pay $363,000 

in estate taxes on the property that they had 

accumulated during their 44 years together.

 CHIEF JUSTICE ROBERTS: Could I ask you the 

same question I asked the Solicitor General?

 Do you think there would be a problem if 

Congress went the other way, the federalism problem? 

Obviously, you don't think there's an equal protection 

problem -­

MS. KAPLAN: Right.

 CHIEF JUSTICE ROBERTS: -- but a federalism 

issue, Congress said, we're going to recognize same-sex 

couples -- committed same-sex couples -- even if the 

State doesn't, for purposes of Federal law?

 MS. KAPLAN: Obviously, with respect to 

marriage, the Federal Government has always used the 

State definitions. And I think what you're -­

Mr. Chief Justice, what you're proposing is to extend -­

the Federal Government extend additional benefits to gay 

couples in States that do not allow marriage, to 

equalize the system.

 CHIEF JUSTICE ROBERTS: I just am asking 

whether you think Congress has the power to interfere 

with the -- to not adopt the State definition if they're 

extending benefits.

 Do they have that authority?

 MS. KAPLAN: I think the question under the 

Equal Protection Clause is what -- is what the 

distinction is.



 You're following the lead of the Solicitor 

General and returning to the Equal Protection Clause 

every time I ask a federalism question.

 Is there any problem under federalism 


 MS. KAPLAN: With the Federal Government -­


passing a law saying, we are going to adopt a different 

definition of marriage than those States that don't 

recognize same-sex marriage. We don't care whether you 

do as a matter of State law, when it comes to Federal 

benefits, same-sex marriage will be recognized.

 MS. KAPLAN: It has certainly been argued in 

this case by others that -- whether or not that's in any 

way the powers of the Federal Government. For the 

reasons Justice Kagan mentioned, we think the federalism 

principles go forward a novelty question. I think 

whether or not the Federal Government could have its own 

definition of marriage for all purposes would be a very 

closely argued question.

 JUSTICE SCALIA: I don't understand your 

answer. Is your answer yes or no? Is there a 

federalism problem with that, or isn't there a 

federalism problem?

 MS. KAPLAN: I -- I think the Federal 

Government could extend benefits to gay couples to 

equalize things on a programmatic basis to make things 

more equal. Whether the Federal Government can have its 

own definition of marriage, I think, would be -- there's 

a -- it'd be very closely argued whether that's outside 

the enumerated approach.

 JUSTICE SCALIA: Well, it's just -- all 

these statutes use the term "marriage," and the Federal 

Government says in all these statutes when it says 

marriage, it includes same-sex couples, whether the 

State acknowledges them to be married or not. 

MS. KAPLAN: But that -- I don't know if 

that would work, because they wouldn't -­

JUSTICE SCALIA: What do you mean whether or 

not it would work? I don't care if it works.


 JUSTICE SCALIA: Does it -- does it create a 

federalism problem?

 MS. KAPLAN: The power to marry people is a 

power that rests with the States.


 MS. KAPLAN: The Federal Government doesn't 

issue marriage licenses. It never has.

 JUSTICE SCALIA: Well, it's not doing that, 

it's just saying for purposes -- just what it's doing 

here. It says, for purposes of all these Federal 

statutes, when we say marriage, we mean -- instead of 

saying we mean heterosexual marriage, we mean, whenever 

we use it, heterosexual and homosexual marriage.

 If that's what it says, can it do that?

 MS. KAPLAN: As long as the people were 

validly married under State law, and met the 

requirements of State law to get married -­

JUSTICE SCALIA: No, no, no, no. It 

includes -­

MS. KAPLAN: I'm not sure that the Federal 

Government -- this answers your question,

Justice Scalia -- I'm not sure the Federal Government

can create a new Federal marriage that would be some

kind of marriage that States don't permit.

 JUSTICE ALITO: Well, let me get to the 

question I asked Mr. Clement. It just gets rid of the 

word "marriage," takes it out of the U.S. Code 

completely. Substitutes something else, and defines it 

as same-sex -- to include same-sex couples. Surely it 

could do that.

 MS. KAPLAN: Yes. That would not be based 

on the State's -­

JUSTICE ALITO: So it's just the word 

"marriage"? And it's just the fact that they use this 

term "marriage"?

 MS. KAPLAN: Well, that's what the Federal 

Government has always chosen to do. And that's the way 

the Federal law is structured, and it's always been 

structured for 200 years based on the State police power 

to define who's married. The Federal Government I 

presume could decide to change that if it wanted, and 

somehow, it would be very strange for all 1,100 laws, 

but for certain programs -- you have different 

requirements other than marriage, and that would be 

constitutional or unconstitutional depending on the 


 JUSTICE ALITO: But if the estate tax 

follows State law, would not that create an equal 

protection problem similar to the one that exists here? 

Suppose there were a dispute about the -- the State of 

residence of your client and her partner or spouse. Was 

it New York, was it some other State where same-sex 

marriage would not have been recognized? And suppose 

there was -- the State court said the State of residence 

is a State where it's not recognized.

 Would -- would you not have essentially the 

same equal protection argument there that you have now?

 MS. KAPLAN: Well, let me -- let me answer 

that question very clearly. Our position is only with 

respect to the nine States -- and I think there are two 

others that recognize these marriages. So if my 

client -- if a New York couple today marries and moves 

to North Carolina, one of which has a constitutional 

amendment, a State constitutional amendment -- and one 

of the spouses dies, they would not -- and estate taxes 

determine where the person dies, they would not be 

entitled to the deduction.

 That is not our claim here.

 Moreover, Justice Alito, in connection with 

a whole host of Federal litigation, there has been 

Federal litigation for hundreds of years with respect to 

the residency of where people live or don't live, or 

whether they are divorced or not divorced throughout the 

Federal system. And the Federal Government has always 

handled that and has never before -- and we believe this 

is why it's unconstitutional -- separated out a class of 

married gay couples solely because they were gay.

 JUSTICE ALITO: Just -- if I could follow up 

with one -- one question. What if the -- the 

hypothetical surviving spouse, partner in North 

Carolina, brought an equal protection argument, saying 

that there is no -- it is unconstitutional to treat me 

differently because I am a resident of North Carolina 

rather than a resident of New York. What would be -­

would that be discrimination on the basis of sexual 

orientation? What would be the level of scrutiny? 

Would it survive?

 MS. KAPLAN: That would be certainly a 

different case. It'd be more similar to the case I 

think you heard yesterday than the case that we have 

today. We certainly believe that sexual-orientation 

discrimination should get heightened scrutiny. If it 

doesn't get heightened scrutiny, obviously, it'd be 

rational basis, and the question would be what the State 

interests were in not allowing couples, for example, in 

North Carolina who are gay to get married.

 No one has identified in this case, and I 

don't think we've heard it in the argument from my 

friend, any legitimate difference between married gay 

couples on the one hand and straight married couples on 

the other that can possibly explain the sweeping, 

undifferentiated and categorical discrimination of DOMA, 

Section 3 of DOMA.

 And no one has identified any legitimate 

Federal interest that is being served by Congress's 

decision, for the first time in our nation's history to 

undermine the determinations of the sovereign States 

with respect to eligibility for marriage. I would 

respectfully contend that this is because there is none.

 Rather, as the title of the statute makes 

clear, DOMA was enacted to defend against the marriages 

of gay people. This discriminatory purpose was rooted 

in moral disapproval as Justice Kagan pointed out.

 JUSTICE BREYER: What -- what do you think 

of his -- the argument that I heard was, to put the 

other side, at least one part of it as I understand it 

said: Look, the Federal Government needs a uniform 

rule. There has been this uniform one man - one woman 

rule for several hundred years or whatever, and there's 

a revolution going on in the States. We either adopt 

the resolution -- the revolution or push it along a 

little, or we stay out of it. And I think Mr. Clement 

was saying, well, we've decided to stay out of it -­

MS. KAPLAN: I don't -­

JUSTICE BREYER: -- and the way to stay out 

of it is to go with the traditional thing. I mean, that 

-- that's an argument. So your answer to that argument 

is what?

 MS. KAPLAN: I think it's an incorrect 

argument, Justice Breyer, for the -­

JUSTICE BREYER: I understand you do; I'd 

like to know the reason.


 MS. KAPLAN: Of course. Congress did not 

stay out of it. Section 3 of DOMA is not staying out of 

it. Section 3 of DOMA is stopping the recognition by 

the Federal Government of couples who are already 

married, solely based on their sexual orientation, and 

what it's doing is undermining, as you can see in the 

briefs of the States of New York and others, it's 

undermining the policy decisions made by those States 

that have permitted gay couples to marry.

 States that have already resolved the 

cultural, the political, the moral -- whatever other 

controversies, they're resolved in those States. And by 

fencing those couples off, couples who are already 

married, and treating them as unmarried for purposes of 

Federal law, you're not -- you're not taking it one step 

at a time, you're not promoting caution, you're putting 

a stop button on it, and you're having discrimination 

for the first time in our country's history against a 

class of married couples.


JUSTICE SOTOMAYOR: Now, the -- the 

discriminations are not the sexual orientation, but on a 

class of marriage; is that what you're -­

MS. KAPLAN: It's a class of married couples 

who are gay.

 JUSTICE SOTOMAYOR: So I pose the same 

question I posed to the General to you. Do you think 

there's a difference between that discrimination and -­

and the discrimination of States who say homosexuals 

can't get married?

 MS. KAPLAN: I think that it's -- they're 

different cases. I think when you have couples who are 

gay who are already married, you have to distinguish 

between those classes. Again, the Federal Government 

doesn't give marriage licenses, States do, and whatever 

the issues would be in those States would be what 

interest the States have, as opposed to here, what 

interest -- and we think there is none -- the Federal 

Government has.

 There is little doubt that the answer to the 

question of why Congress singled out gay people's 

marriages for disrespect through DOMA. The answer can't 

be uniformity as we've discussed. It can't be cost 

savings, because you still have to explain then why the 

cost savings is being wrought at the expense of married 

couples who are gay; and it can't be any of the State 

interests that weren't discussed, but questions of 

family law in parenting and marriage are done by the 

States, not by the Federal Government.

 The only -- the only conclusion that can be 

drawn is what was in the House Report, which is moral 

disapproval of gay people, which the Congress thought 

was permissible in 1996 because it relied on the Court's 

Bowers decision, which this Court has said was wrong, 

not only at the time it was overruled in Lawrence, but 

was wrong when it was decided.


it's the same question I asked before; 84 Senators based 

their vote on moral disapproval of gay people?

 MS. KAPLAN: No, I think -- I think what is 

true, Mr. Chief Justice, is that times can blind, and 

that back in 1996 people did not have the understanding 

that they have today, that there is no distinction, 

there is no constitutionally permissible distinction -­


mean -- times can blind. Does that mean they did not 

base their votes on moral disapproval?

 MS. KAPLAN: No; some clearly did. I think 

it was based on an understanding that gay -- an 

incorrect understanding that gay couples were 

fundamentally different than straight couples, an 

understanding that I don't think exists today and that's 

the sense I'm using that times can blind. I think there 

was -- we all can understand that people have moved on 

this, and now understand that there is no such 

distinction. So I'm not saying it was animus or 

bigotry, I think it was based on a misunderstanding on 

gay people and their -­

JUSTICE SCALIA: Why -- why are you so 

confident in that -- in that judgment? How many -- how 

many States permit gay -- gay couples to marry?

 MS. KAPLAN: Today? 9, Your Honor.

 JUSTICE SCALIA: 9. And -- and so there has 

been this sea change between now and 1996.

 MS. KAPLAN: I think with respect to the 

understanding of gay people and their relationships 

there has been a sea change, Your Honor. 

JUSTICE GINSBURG: How many States have 

civil unions now?

 MS. KAPLAN: I believe -- that was discussed 

in the arguments, 8 or 9, I believe.

 JUSTICE GINSBURG: And how many had it in 


 MS. KAPLAN: I -- yes, it was much, much 

fewer at the time. I don't have that number, Justice 

Ginsburg; I apologize.

 CHIEF JUSTICE ROBERTS: I suppose the sea 

change has a lot to do with the political force and 

effectiveness of people representing, supporting your 

side of the case?

 MS. KAPLAN: I disagree with that, 

Mr. Chief Justice, I think the sea change has to do, 

just as discussed was Bowers and Lawrence, was an 

understanding that there is no difference -- there was 

fundamental difference that could justify this kind of 

categorical discrimination between gay couples and 

straight couples.

 CHIEF JUSTICE ROBERTS: You don't doubt that 

the lobby supporting the enactment of same sex-marriage 

laws in different States is politically powerful, do 


 MS. KAPLAN: With respect to that category, 

that categorization of the term for purposes of 

heightened scrutiny, I would, Your Honor. I don't -­




tell, political figures are falling over themselves to 

endorse your side of the case.

 MS. KAPLAN: The fact of the matter is, 

Mr. Chief Justice, is that no other group in recent 

history has been subjected to popular referenda to take 

away rights that have already been given or exclude 

those rights, the way gay people have. And only two of 

those referenda have ever lost. One was in Arizona; it 

then passed a couple years later. One was in Minnesota 

where they already have a statute on the books that 

prohibits marriages between gay people.

 So I don't think -- and until 1990 gay 

people were not allowed to enter this country. So I 

don't think that the political power of gay people today 

could possibly be seen within that framework, and 

certainly is analogous -- I think gay people are far 

weaker than the women were at the time of Frontiero.

 CHIEF JUSTICE ROBERTS: Well, but you just 

referred to a sea change in people's understandings and 

values from 1996, when DOMA was enacted, and I'm just 

trying to see where that comes from, if not from the 

political effectiveness of -- of groups on your side of 

the case.

 MS. KAPLAN: To flip the language of the 

House Report, Mr. Chief Justice, I think it comes from a 

moral understanding today that gay people are no 

different, and that gay married couples' relationships 

are not significantly different from the relationships 

of straight married people. I don't think -­

CHIEF JUSTICE ROBERTS: I understand that. 

I am just trying to see how -- where that that moral 

understanding came from, if not the political 

effectiveness of a particular group.

 MS. KAPLAN: I -- I think it came -- is, 

again is very similar to the, what you saw between 

Bowers and Lawrence. I think it came to a societal 


 I don't believe that societal understanding 

came strictly through political power; and I don't think 

that gay people today have political power as that -­

this Court has used that term with -- in connection with 

the heightened scrutiny analysis.


Ms. Kaplan.

 Mr. Clement, you have 3 minutes remaining. 




 MR. CLEMENT: Thank you, Mr. Chief Justice, 

just three points in rebuttal.

 First of all, I was not surprised to hear 

the Solicitor General concede that there is no unique 

federalism problem with DOMA, because in the Gill 

litigation in the First Circuit, the State of 

Massachusetts -- the Commonwealth of Massachusetts 

invoked the Tenth Amendment, and on that issue the 

United States continued to defend DOMA because there is 

no unique federalism problem with it, as the Chief 

Justice's question suggested. If 10 years from now 

there are only 9 States left and Congress wants to adopt 

a uniform Federal law solely for Federal law purposes to 

going the other way, it is fully entitled to do that. 

It has the power to do that.

 I would say also the Federal Government has 

conceded in this litigation that there is a rational 

basis for this statute, something else to keep in mind.

 I would also say that this provision is not 

so unique. The very next provision in the Dictionary 

Act -­

JUSTICE GINSBURG: Rational basis, 

Mr. Clement -- is a problem in your briefing. You seem 

to say and you repeat it today that there is three 

tiers, and if you get into rational basis then it's 

anything goes. But the history of this Court is, in the 

very first gender discrimination case, Reed v. Reed, the 

Court did something it had never done in the history of 

the country under rational basis. There was no 

intermediate tier then. It was rational basis.

 MR. CLEMENT: Well -­

JUSTICE GINSBURG: And yet the Court said 

this is rank discrimination and it failed.

 MR. CLEMENT: And, Justice Ginsburg, 

applying rational basis to DOMA, I think that there are 

many rational bases that support it. And the Solicitor 

General says, well, you know, the United States is not 

the 51st State to be sure, but the Federal Government 

has interests in uniformity that no other entity has.

 And we heard today that there's a problem; 

when somebody moves from New York to North Carolina, 

they can lose their benefits. The Federal Government 

uniquely, unlike the 50 States, can say, well, that 

doesn't make any sense, we are going to have the same 

rule. We don't want somebody, if they are going to be 

transferred in the military from West Point to Fort Sill 

in Oklahoma, to resist the transfer because they are 

going to lose some benefits.

 It makes sense to have a uniform Federal 

rule for the Federal Government. It is not so anomalous 

that the term "marriage" is defined in the U.S. Code. 

The very next provision of the Dictionary Act defines 

"child." These terms, although they are the primary 

province of State governments, do appear in multiple 

Federal statutes and it's a Federal role to define those 


 The last point I would simply make is in 

thinking about animus, think about the fact that 

Congress asked the Justice Department three times about 

the constitutionality of the statute. That's not what 

you do when you are motivated by animus. The first two 

times they got back the answer it was constitutional. 

The third time, they asked again in the wake of Romer, 

and they got the same answer: It's constitutional.

 Now the Solicitor General wants to say: 

Well, it was want of careful reflection? Well, where do 

we get careful reflection in our system? Generally, 

careful reflection comes in the democratic process. The 

democratic process requires people to persuade people.

 The reason there has been a sea change is a 

combination of political power, as defined by this 

Court's cases as getting the attention of lawmakers; 

certainly they have that. But it's also persuasion. 

That's what the democratic process requires. You have 

to persuade somebody you're right. You don't label them 

a bigot. You don't label them as motivated by animus. 

You persuade them you are right.

 That's going on across the country. 

Colorado, the State that brought you Amendment 2, has 

just recognized civil unions. Maine, that was pointed 

to in the record in this case as being evidence of the 

persistence of discrimination because they voted down a 

statewide referendum, the next election cycle it came 

out the other way. And the Federal Congress is not 

immune. They repealed "Don't Ask, Don't Tell." Allow 

the democratic process to continue.

 Thank you, Your Honor.

 CHIEF JUSTICE ROBERTS: Thank you, counsel, 


 The case is submitted.

 (Whereupon, at 12:13 p.m., the case in the 

above-entitled matter was submitted.)