Paul Clement, representing the Bi-Partisan Legal Advisory Group (BLAG), was first on this part of the case. To read about the standing issue that was discussed before the merits, click here.
Clement accomplished two main goals in his time. One, to make clear the Federal Government indeed has the authority to define marriage for federal purposes, and two, to clarify that this is not in any way unprecedented. “[T]he 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,” he said.
Justice Kennedy seemed concerned with how broad the issue of marriage is in Federal law. “Well, it applies to over what, 1,100 Federal laws,” he cried. “[Y]ou 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.”
Kennedy’s concern should set off alarms for us because he seemed to be buying the emotional arguments presented by same-sex proponents. As Clement pointed out, all DOMA did was say “that when Congress passed every one of the statutes affected by DOMA’s definition, the Congress that was passing that statute had in mind the traditional definition.” By re-defining the term “marriage,” the different law’s intent is also frustrated, or, at least, altered beyond what they intended to do at the time.
If you create a law for people 18 years and older and then you re-define the definition of a year, so that a month is considered a year, you are, of course, altering the intent of the law, as it now will apply to 18-month-old babies, when that was never its intent.
To Justice Sotomayor this was a matter of pure discrimination:
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 marriage. The States control that.
That view was shared by Solicitor General Donald Verrilli, who argued next. “What Section 3 does is exclude from an array of Federal benefits lawfully married couples,” he said. The Justices tried every which way to ask him if he saw any federalism problems with DOMA, but he seemed very reluctant to admit that he did not. “Section 3 is discrimination,” he would say. “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.”
But when confronted with his assertion, he retreated (as did Kaplan).
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. It may well have been the simple want of careful reflection
Still the bottom line was clear:
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
Next it was time for Miss Roberta Kaplan, representing the Respondent Windsor, the woman “married” to her partner in Canada who sued for loss of federal benefits in New York where she lived.
The Chief Justice tried once again to raise the federalism question, to no avail.
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?
MISS 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?
No progress. “Is there a federalism problem with that or isn’t there a federalism problem,” Justice Scalia asked in frustration but they came no closer to an answer. It seemed odd how reluctant they were being in this line of questioning until Miss Kaplan touched the subject on the other side, as it relates to the federal government and same-sex “marriage.”
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.
To Miss Kaplan, all DOMA does is discriminate, also. But she again retreated when confronted with her argument by the Chief Justice: “84 Senators based their vote on moral disapproval of gay people?”
MISS 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.
Miss Kaplan’s was also confronted with the inconsistency of her arguments when she talked about the “sea change” when it comes to “homosexuality.”
JUSTICE SCALIA: How many States permit “gay” couples to marry?
MISS KAPLAN: Today? Nine, your Honor.
JUSTICE SCALIA: Nine. And — and so there has been this sea change between now and 1996.
MISS KAPLAN: I think with respect to the understanding of “gay” people and their relationships there has been a sea change, your Honor.
But when the Chief Justice pointed out the implications of her argument, Miss Kaplan ran as far as possible from her own assessment. This was the point where the theme of CWA’s important amicus brief was discussed and Miss Kaplan had already agreed with us, though she would try to walk it back now.
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?
MISS KAPLAN: I disagree with that, Mr. Chief Justice
And she fought that connotation the rest of the day. You see, one of the considerations the Court will look at when considering whether homosexuals are a “suspect class” deserving of protection, as with race, is whether they are “politically powerless.” This is, of course, laughable, as CWA’s brief clearly shows, but that is the argument they are trying to make the Court buy. The Chief Justice was not:
CHIEF JUSTICE ROBERTS: Really?
MISS KAPLAN: Yes.
CHIEF JUSTICE ROBERTS: As far as I can tell, political figures are falling over themselves to endorse your side of the case.
On rebuttal, Clement was simply brilliant:
[I]n 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.
We pray the Justices heed that call and refrain from inserting their preferences regarding marriage on the rest of the country.
Audio and transcript of oral arguments can be found here.