Listen and Read: Supreme Court DOMA Arguments
Wednesday, March 27, 2013
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.
IN THE SUPREME COURT OF THE UNITED STATES
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UNITED STATES, : Petitioner : No. 12-307 v. : EDITH SCHLAIN WINDSOR, IN HER : CAPACITY AS EXECUTOR OF THE ESTATE: OF THEA CLARA SPYER, ET AL. :
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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
P R O C E E D I N G S
CHIEF JUSTICE ROBERTS: We will hear
argument this morning in Case 12-307, United
States v. Windsor, and we will begin with the
ORAL ARGUMENT OF VICKI C. JACKSON
ON BEHALF OF THE COURT-APPOINTED AMICUS CURIAE
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
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
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
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
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
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
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.
CHIEF JUSTICE ROBERTS: Mr. Srinivasan?
ORAL ARGUMENT OF SRI SRINIVASAN,
ON BEHALF OF THE PETITIONER, SUPPORTING AFFIRMANCE
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?
MR. SRINIVASAN: Where the parties agreed -
CHIEF JUSTICE ROBERTS: All the parties
agreed with the decision below and we nonetheless upheld
MR. SRINIVASAN: Well, you didn't speak to
it in Lovett, Your Honor, but that was the circumstance
CHIEF JUSTICE ROBERTS: No, it wasn't
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 -
CHIEF JUSTICE ROBERTS: Okay. So putting
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
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
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
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
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
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
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.
JUSTICE SCALIA: Yes or no?
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 -
JUSTICE GINSBURG: But when the
Government -- when the -- when the case is adjudicated
in the first instance -- we're talking here about
MR. SRINIVASAN: Correct.
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
MR. SRINIVASAN: Correct.
JUSTICE ALITO: You're -- you're
representing the Judiciary as you stand before us here
MR. SRINIVASAN: Well -
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
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
MR. SRINIVASAN: Yes.
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 -
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.
CHIEF JUSTICE ROBERTS: So you say we
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
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
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,
JUSTICE SOTOMAYOR: Well, I want to know
what you're conceding.
MR. SRINIVASAN: I'm conceding that at
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.
ORAL ARGUMENT OF PAUL D. CLEMENT
ON BEHALF OF THE RESPONDENT BIPARTISAN LEGAL
ADVISORY GROUP OF THE UNITED STATES
HOUSE OF REPRESENTATIVES
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
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
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
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
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
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.
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
JUSTICE SOTOMAYOR: We don't even have a
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
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
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.
CHIEF JUSTICE ROBERTS: Thank you, counsel.
Ms. Jackson, you have 4 minutes remaining.
REBUTTAL ARGUMENT OF VICKI C. JACKSON
ON BEHALF OF THE COURT-APPOINTED AMICUS CURIAE
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
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
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
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
CHIEF JUSTICE ROBERTS: Sure.
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.
CHIEF JUSTICE ROBERTS: Thank you.
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.
ORAL ARGUMENT OF PAUL D. CLEMENT
ON BEHALF OF THE RESPONDENT BIPARTISAN LEGAL
ADVISORY GROUP OF THE UNITED STATES
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
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
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
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
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.
JUSTICE BREYER: All right.
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
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
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
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
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
JUSTICE SOTOMAYOR: No, I'm -- I'm
MR. CLEMENT: Okay. So then the question
JUSTICE SOTOMAYOR: Assuming I assume the
States can -
MR. CLEMENT: So then, if the States can -
JUSTICE SOTOMAYOR: -- what creates the
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
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
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
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.
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.
CHIEF JUSTICE ROBERTS: Thank you,
ORAL ARGUMENT OF DONALD B. VERRILLI, JR.,
ON BEHALF OF THE PETITIONER
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.
CHIEF JUSTICE ROBERTS: Okay.
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.
CHIEF JUSTICE ROBERTS: Okay.
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
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
CHIEF JUSTICE ROBERTS: I know the equal
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
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
GENERAL VERRILLI: Yes, Your Honor.
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
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
GENERAL VERRILLI: But our point here,
Justice Breyer, is that whatever -- may I finish?
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.
ORAL ARGUMENT OF ROBERTA A. KAPLAN
ON BEHALF OF THE RESPONDENT WINDSOR
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
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
Do they have that authority?
MS. KAPLAN: I think the question under the
Equal Protection Clause is what -- is what the
CHIEF JUSTICE ROBERTS: No, no. I know
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 -
CHIEF JUSTICE ROBERTS: With Congress
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
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
MS. KAPLAN: The power to marry people is a
power that rests with the States.
JUSTICE SCALIA: Yes.
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
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
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
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.
CHIEF JUSTICE ROBERTS: Is the -
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
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.
CHIEF JUSTICE ROBERTS: So 84 Senators -
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 -
CHIEF JUSTICE ROBERTS: Well, does that
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
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 -
CHIEF JUSTICE ROBERTS: Really?
MS. KAPLAN: Yes.
CHIEF JUSTICE ROBERTS: As far as I can
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
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.
CHIEF JUSTICE ROBERTS: Thank you,
Mr. Clement, you have 3 minutes remaining.
REBUTTAL ARGUMENT OF PAUL D. CLEMENT
ON BEHALF OF THE RESPONDENT BIPARTISAN LEGAL
ADVISORY GROUP OF THE UNITED STATES
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
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.)