The first segment is not in chronological order, but arguably the most important, as it relates the likely outcome of these proceedings. It is part of the reason the justices have been reticent to make any sweeping judgments regarding DOMA. The plaintiff poorly addressed the federalism argument, and the consequences of a ruling that trumps the states’ right to regulate marriage would seem reflect what Justice Alito describes.
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 Optical.
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 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.
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.
MR. CLEMENT: 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.
GENERAL VERILLI: Now, this statute is not called the Federal Uniform Marriage Benefits Act; it’s called the Defense of Marriage Act. And the reason for that is because the statute is not directed at uniformity in the administration of Federal benefits. All — there is two equally uniform systems, the system of respecting the State choices and the system of — that BLAG is advocating here.
And what BLAG’s got to do in order to satisfy equal protection scrutiny is justify the choice between one and the other, and the difference between the two is that the Section 3 choice is a choice that Section 3 choice is a choice that discriminates. So it’s not simply a matter sufficient to say, well, uniformity is enough. Section 3 discriminates.
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 terms.
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 statutes. And my client was treated as unmarried when her spouse passed away, so that she had to pay $363,000 in estate taxes on the property that they had accumulated during their 44 years together.
CHIEF JUSTICE ROBERTS: Could I ask you the same question I asked the Solicitor General? Do you think there would be a problem if Congress went the other way, the federalism problem? Obviously, you don’t think there’s an equal protection problem -MS.
CHIEF JUSTICE ROBERTS: — but a federalism issue, Congress said, we’re going to recognize same-sex couples — committed same-sex couples — even if the State doesn’t, for purposes of Federal law?
MS. KAPLAN: Obviously, with respect to marriage, the Federal Government has always used the State definitions. And I think what you’re Mr. Chief Justice, what you’re proposing is to extend -the Federal Government extend additional benefits to gay couples in States that do not allow marriage, to equalize the system.
CHIEF JUSTICE ROBERTS: I just am asking whether you think Congress has the power to interfere with the — to not adopt the State definition if they’re extending benefits. Do they have that authority?
MS. KAPLAN: I think the question under the Equal Protection Clause is what — is what the distinction is.
CHIEF JUSTICE ROBERTS: No, no. I know that. 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 principles?
MS. KAPLAN: With the Federal Government –
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 federalism problem?
MS. KAPLAN: I — I think the Federal Government could extend benefits to gay couples to equalize things on a programmatic basis to make things more equal. Whether the Federal Government can have its own definition of marriage, I think, would be — there’s a — it’d be very closely argued whether that’s outside the enumerated approach.
JUSTICE SCALIA: Well, it’s just — all these statutes use the term “marriage,” and the Federal Government says in all these statutes when it says marriage, it includes same-sex couples, whether the State acknowledges them to be married or not.
MS. KAPLAN: But that — I don’t know if that would work, because they wouldn’t -JUSTICE
SCALIA: What do you mean whether or not it would work? I don’t care if it works.
JUSTICE SCALIA: Does it — does it create a federalism problem?
MS. KAPLAN: The power to marry people is a power that rests with the States.
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 includes –
MS. KAPLAN: I’m not sure that the Federal Government — this answers your question, Justice Scalia — I’m not sure the Federal Government can create a new Federal marriage that would be some kind of marriage that States don’t permit.
JUSTICE ALITO: Well, let me get to the question I asked Mr. Clement. It just gets rid of the word “marriage,” takes it out of the U.S. Code completely. Substitutes something else, and defines it as same-sex — to include same-sex couples. Surely it could do that.
MS. KAPLAN: Yes. That would not be based on the State’s –
JUSTICE ALITO: So it’s just the word “marriage”? And it’s just the fact that they use this term “marriage”?
MS. KAPLAN: Well, that’s what the Federal Government has always chosen to do. And that’s the way the Federal law is structured, and it’s always been structured for 200 years based on the State police power to define who’s married. The Federal Government I presume could decide to change that if it wanted, and somehow, it would be very strange for all 1,100 laws, but for certain programs — you have different requirements other than marriage, and that would be constitutional or unconstitutional depending on the distinction.
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.
GENERAL VERRILLI: Well, as we said yesterday, we think it’s an open question with respect to State recognition of marriage, and they may well be able to advance interests — they may be able to advance it. I guess I shouldn’t say “may well,” because I do think it would be difficult, as we said yesterday. They may be able to advance interests that would satisfy heightened scrutiny and justify non-recognition
JUSTICE BREYER: Then yet — but here -GENERAL
VERRILLI: But — but here, the Federal Government’s not in the same position because as BLAG concedes, the Federal Government at the most can act at the margins in influencing these decisions about marriage and child rearing at the State level. And the Second Circuit and the First Circuit both concluded that there’s no connection at all, and that’s of course because Section 3 doesn’t make it any more likely that unmarried men and women in States — that — unmarried men and women who confront an unplanned pregnancy are going to get married. And — and elimination of Section 3 wouldn’t make it any less likely that unmarried men and women are going to get married. It doesn’t have any effect at all. It doesn’t have any connection at all. So it’s not at the margins. There’s no interest at all at this — in DOMA in promoting –
JUSTICE BREYER: Or if there’s no interest — I mean, I’m back where we were yesterday. It seems to me, forgetting your — your preferable argument, it’s a violation of equal protection everywhere. Well, if it is, then all States have to have something like pacts. And if they have to have something like pacts, then you say then they also have to allow marriage. So then are you not arguing they all have to allow marriage? And then you say no. So with that point –
GENERAL VERRILLI: But our point here, Justice Breyer, is that whatever — may I finish. Thank you.
Whatever the issue is, with — whatever the outcome is with respect to States and marriage, that the Federal Government’s interest in advancing those justifications through Section 3 of DOMA is so attenuated that two Federal courts of appeals have seen it as non-existent, and it cannot justify Section 3.
KAPLAN: No one has identified in this case, and I don’t think we’ve heard it in the argument from my friend, any legitimate difference between married gay couples on the one hand and straight married couples on the other that can possibly explain the sweeping, undifferentiated and categorical discrimination of DOMA, Section 3 of DOMA. And no one has identified any legitimate Federal interest that is being served by Congress’s decision, for the first time in our nation’s history to undermine the determinations of the sovereign States with respect to eligibility for marriage. I would respectfully contend that this is because there is none.
Rather, as the title of the statute makes clear, DOMA was enacted to defend against the marriages of gay people. This discriminatory purpose was rooted in moral disapproval as Justice Kagan pointed out.
JUSTICE BREYER: What — what do you think of his — the argument that I heard was, to put the other side, at least one part of it as I understand it said: Look, the Federal Government needs a uniform rule. There has been this uniform one man – one woman rule for several hundred years or whatever, and there’s a revolution going on in the States. We either adopt the resolution — the revolution or push it along a little, or we stay out of it. And I think Mr. Clement was saying, well, we’ve decided to stay out of it -MS.
KAPLAN: I don’t –
JUSTICE BREYER: — and the way to stay out of it is to go with the traditional thing. I mean, that — that’s an argument. So your answer to that argument is what?
MS. KAPLAN: I think it’s an incorrect argument, Justice Breyer, for the –
JUSTICE BREYER: I understand you do; I’d like to know the reason.
MS. KAPLAN: Of course. Congress did not stay out of it. Section 3 of DOMA is not staying out of it. Section 3 of DOMA is stopping the recognition by the Federal Government of couples who are already married, solely based on their sexual orientation, and what it’s doing is undermining, as you can see in the briefs of the States of New York and others, it’s undermining the policy decisions made by those States that have permitted gay couples to marry.
States that have already resolved the cultural, the political, the moral — whatever other controversies, they’re resolved in those States. And by fencing those couples off, couples who are already married, and treating them as unmarried for purposes of Federal law, you’re not — you’re not taking it one step at a time, you’re not promoting caution, you’re putting a stop button on it, and you’re having discrimination for the first time in our country’s history against a class of married couples.
JUSTICE 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.
JUSTICE GINSBURG: And yet the Court said this is rank discrimination and it failed.
MR. CLEMENT: 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.