Supreme Court DOMA US VS Windsor Transcripts

engaygementringadIN THE SUPREME COURT OF THE UNITED STATES
– – – – – – – – – – – – – – – – – x

UNITED STATES, :
Petitioner : No. 12-307
v. :
EDITH SCHLAIN WINDSOR, IN HER :

CAPACITY AS EXECUTOR OF THE ESTATE:

OF THEA CLARA SPYER, ET AL. :
– – – – – – – – – – – – – – – – – x

Washington, D.C.
Wednesday, March 27, 2013

The above-entitled matter came on for oral
argument before the Supreme Court of the United States
at 10:18 a.m.
APPEARANCES:
VICKI C. JACKSON, ESQ., Cambridge, Massachusetts; for

Court-appointed amicus curiae.

SRI SRINIVASAN, ESQ., Deputy Solicitor General,
Department of Justice, Washington, D.C.; for
Petitioner, supporting affirmance.

PAUL D. CLEMENT, ESQ., Washington, D.C.; for Respondent
Bipartisan Legal Advisory Group of the United States
House of Representatives.


DONALD B. VERRILLI, JR., ESQ., Solicitor General,Department of Justice, Washington, D.C.; for
Petitioner, supporting affirmance.ROBERTA A. KAPLAN, ESQ., New York, New York; for
Respondent Windsor.C O N T E N T SORAL ARGUMENT OF PAGE
VICKI C. JACKSON, ESQ.

For Court-appointed amicus curiae 5
ORAL ARGUMENT OF
SRI SRINIVASAN, ESQ.

For Petitioner, supporting affirmance 18
ORAL ARGUMENT OF
PAUL D. CLEMENT, ESQ.

For Respondent Bipartisan Legal Advisory
Group of the United States House of
Representatives 35

REBUTTAL ARGUMENT OF
VICKI C. JACKSON, ESQ.
For Court-appointed amicus curiae 50

C O N T E N T S

ORAL ARGUMENT OF PAGE

PAUL D. CLEMENT, ESQ.
For Respondent Bipartisan Legal Advisory
Group of the United States House of
Representatives 55

ORAL ARGUMENT OF
DONALD B. VERRILLI, JR., ESQ.
For Petitioner, supporting affirmance 80
ROBERTA A. KAPLAN, ESQ.

For Respondent Windsor 94
REBUTTAL ARGUMENT OF
PAUL D. CLEMENT, ESQ.

For Respondent Bipartisan Legal Advisory
Group of the United States House of
Representatives 110

P R O C E E D I N G S

(10:18 a.m.)

CHIEF JUSTICE ROBERTS: We will hear
argument this morning in Case 12-307, United
States v. Windsor, and we will begin with the
jurisdictional discussion.

Ms. Jackson?
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
question.

In the district court, Ms. Windsor alleged

classical Article III injury for which she sought
redress. Other persons injured by DOMA’s op

eration

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
time.

In addition, the issue of DOMA –

JUSTICE SCALIA: Excuse me. If there is no
jurisdiction here, why was there jurisdiction at the
trial level?

MS. JACKSON: Your Honor –

JUSTICE SCALIA: I mean, the Government
comes in and says “I agree” — or if there was
jurisdiction, why did the Court ever have to get to the
merits?

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
anyway.

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 par

ties to the case agree

on what the law is? What, the — just for fun, the
district judge is — is going to have a hearing?

MS. JACKSON: Well, Your Honor, the
jurisdiction of the Court, it seems to me, is not
affected by the length of the proceedings it undertook.
In Kentucky –

JUSTICE SCALIA: I’m not talking about
jurisdiction now. I’m talking about why the district
court, without getting to the merits, should not have
entered judgment against the Government.

MS. JACKSON: I am not sure I have a
wonderful answer to that question, Justice Scalia, but I
do think the case bears some similarities to Kentucky
against Indiana, which was discussed by the parties,
where Kentucky sued Indiana in this Court’s original
jurisdiction on a contract. The two States had a
contract. Indiana agreed it was obligated to perform,
but it wasn’t performing. There — it was worried about
a State court lawsuit. This Court exercised original
jurisdiction to give Kentucky relief. And I think

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

The issue before us today, I think, is an
issue of appellate jurisdiction. And the U.S. is
seeking to invoke the appellate jurisdiction of Article
III courts, notwithstanding that it doesn’t seek relief;
it seeks affirmance.

JUSTICE ALITO: Well, the Solicitor

General’s standing argument is very abstract. But here
is one possible way of understanding it, perhaps the
Solicitor General will disavow it, but it would go like
this: The President’s position in this case is that he
is going to continue to enforce DOMA, engage in conduct
that he believes is unconstitutional, until this Court
tells him to stop.

The judgment of the Second Circuit told the
Executive Branch to comply with the Equal Protection
Clause immediately. The President disagrees with the
temporal aspect of that, so the Executive is aggrieved
in the sense that the Executive is ordered to do
something prior to the point when the Executive believes
it should do that thing.

Now, wouldn’t that be sufficient to make -to
create injury in the Executive and render the
Executive an aggrieved party?

MS. JACKSON: I think not, Your Honor.

I

think not, because I don’t see how that

would be any

different from any party saying, well, we really don’t
want to pay this judgment until we’re sure all of the
courts agree. And I think this Court’s — this Court
doesn’t have a lot of case law where a party seeks
review to get affirmance.

But in the Princeton University against
Schmidt case, there was a State court conviction, Ohio
State Court overturns it, Princeton University seeks
review, because its regulations were at issue. New
Jersey joins in seeking review, but does not ask for
relief; does not take a position on what relief would
be appropriate.

JUSTICE BREYER: Why — why wouldn’t -imagine
— there in Article II, it says that the
President shall take care that the laws be faithfully
executed. So the President has worked out — I,
personally, and for reasons in — in my department,
others think that this law is unconstitutional, but I
have this obligation. And because I have this
obligation, I will not, I will continue to execute this
law. I will continue to execute it though I disagree
with it. And I execute it until I have an authoritative
determination not to.

Now, how is that different from a trustee

who believes that he has an obligation to a trust to do
something under a certain provision that he thinks
doesn’t require that, but, you know, there’s a debate
about it, but he says, I have the obligation here. I’m
going to follow this through.

There’d be standing in the second case for
any fiduciary, despite his personal beliefs, to
continue. We’d understand that and say there was
standing. Why don’t we here?

MS. JACKSON: Well, the trustee, I think,
would be able to go to a court of first instance to get
an adjudication of the claim. What I’m submitting to
you that the trustee could not do, after getting the
first — the judgment in the court of first instance
stating what the remedy — what the liability is, then
seek review of that judgment, but ask only for it to be
affirmed.

JUSTICE BREYER: And that’s the part I don’t
understand. For — if, in fact, as you agree, the
trustee or other fiduciary in my example would indeed
have standing to act according to the law, even though
he thinks that that law is unconstitutional because of
his obligation such as under Section 2. You agree he
has the — he has — there is standing when he goes into
court in the first place, which surely he could

interpret Article II as saying and you follow it through
as long as you can do it, which includes appeals, until
the matter is determined finally and authoritatively by
a court. If you could do the first, what suddenly stops
you from doing the second?

MS. JACKSON: In the first instance, the

obligations are uncertain the trustee is presumably
subject to potentially adverse competing claims on his
or her action.

CHIEF JUSTICE ROBERTS: Well, I would have
thought –

MS. JACKSON: Those are –

CHIEF JUSTICE ROBERTS: I would have thought
your answer would be that the Executive’s obligation to
execute the law includes the obligation to execute the
law consistent with the Constitution. And if he has
made a determination that executing the law by enforcing
the terms is unconstitutional, I don’t see why he
doesn’t have the courage of his convictions and execute
not only the statute, but do it consistent with his view
of the Constitution, rather than saying, oh, we’ll wait
till the Supreme Court tells us we have no choice.

MS. JACKSON: Mr. Chief Justice, I think
that’s a hard question under Article II. But I think
the Article III questions that this Court is facing turn

on what the parties in the case have alleged, what
relief they’re seeking, and what the posture is.

JUSTICE KENNEDY: In Federal court’s
jurisprudence, are you saying there’s a lack of
adversity here?

MS. JACKSON: I am saying primarily –

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JUSTICE KENNEDY: Can you give us a
pigeonhole?

MS. JACKSON: I — it’s a little difficult,
because the circumstance is unusual, Justice Kennedy,
but I think the most apt of the doctrines, although they
are overlapping and reinforce each other, the most apt
is standing.

This Court has made clear that a party on
appeal has to meet the same Article III standing
requirements of injury caused by the action complained

of and redressable by the relief requested by the
parties.

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
reasons.

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
isn’t.

Now, the Government is willing to pay that
$300,000, would be happy to pay that $300,000, but
whether the Government is happy or sad to pay that
$300,000, the Government is still paying the $300,000,
which in the usual set of circumstances is the classic
Article III injury.

Why isn’t it here?

MS. JACKSON: Justice Kagan, there is a
three-prong test. Even if you treat that as injury, it
does not meet the requirements for standing on appeal,
because the Government has not asked this Court to
remedy that injury. The Government has not asked this
Court to overturn the rulings below so it doesn’t have
to pay the $365,000. It has asked this Court to affirm.
And the case or controversy requirement that we’re
talking about are nested in an adversarial system where
we rely on the parties to state their injuries and make
their claims for relief.

If the Government or any party is not bound
with respect to standing by its articulated request for
a remedy, what that does is it enables the Court to fill
in, to reshape. And for a doctrine that is supposed to

 

be limiting the occasions for judicial review of
constitutionality, that is troubling.

JUSTICE KAGAN: But don’t we often separate
those two things, ask whether there’s injury for Article
III purposes and causation and redressability, as you
say, but then say, well, sometimes when all of those are
met, there’s not going to be adequate presentation of
the arguments, and so we will appoint an amicus or we’ll
restructure things? And we do that when the Government
confesses error, often. I mean, we do that several

times a year in this courtroom.

MS. JACKSON: Yes, Your Honor. But
concession of error cases, with respect, are quite
different, because in concession of error cases
typically both parties at the appellate level end up
being adverse to the judgment below and they are asking
relief from this Court from the judgment below.

But here we have a situation where, putting
BLAG to one side for the moment, between the United
States and Ms. Windsor there is no adversity, they’re in
agreement, and neither of them is asking this Court to
reverse or modify the judgment below. And so I think
the confession of error cases are quite different from
the perspective of Article III.

JUSTICE BREYER: No, they’re — they’re not
in agreement about whether to pay the money or not.
They are in agreement about what arguments are correct
legal arguments, and I can’t think of a case other than
the sham cases which — which this isn’t, where — where

 

you would find no standing or other obstacle. And I can
think of one case, which you haven’t mentioned, namely,
Chadha, which seems about identical.

MS. JACKSON: Your Honor, I don’t think that
Chadha is identical, with respect. In — for two main
reasons. In Chadha, the Court was I think quite careful

to avoid deciding whether the United States had Article
III standing. It intensively analyzed a statute, since
repealed, 1252, which gave this Court mandatory
jurisdiction in cases in which a Federal statute was
held unconstitutional and the U.S. was a party. And it
framed its analysis of whether the statute permitted the
appeal. What I think was — oh, may I reserve my time
for rebuttal?

CHIEF JUSTICE ROBERTS: You can finish your
sentence.

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?
Any case?

MR. SRINIVASAN: Where the parties agreed –

CHIEF JUSTICE ROBERTS: All the parties
agreed with the decision below and we nonetheless upheld

 

appellate jurisdiction.

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

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

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
respect –

CHIEF JUSTICE ROBERTS: So this is totally
unprecedented. You’re asking us to do something we have
never done before to reach the issue in this case.

MR. SRINIVASAN: Let me say two things a

bout

that if I might, Your Honor. First is that it’s — it’s
unusual, but that’s not at all surprising, because
the –

CHIEF JUSTICE ROBERTS: No, it’s not just -it’s
not unusual. It’s totally unprecedented.

MR. SRINIVASAN: Well, it’s totally
unprecedented in one respect, Your Honor. If you look
at Chadha — okay, the second point I’d make. Let me
make one point at the outset, though, which is that
whether it’s totally unusual or largely unusual, I grant
you that it doesn’t happen. But the reason it doesn’t
happen is because — I wouldn’t confuse a numerator with
a denominator. This set of circumstances just doesn’t
arise very often.

Now, it’s true that when this set of
circumstances –

JUSTICE SCALIA: It has not arisen very
often in the past, because in the past, when I was at
the Office of Legal Counsel, there was an opinion of the
Office of Legal Counsel which says that the Attorney
General will defend the laws of the United States,
except in two circumstances: Number one, where the
basis for the alleged unconstitutionality has to do with
presidential powers. When the presidential powers are
involved, he’s the lawyer for the President. So he can
say, we think the statute’s unconstitutional, I won’t
defend it.

The second situation is where no possible

 

rational argument could be made in defense of it. Now,
neither of those situations exists here. And I’m
wondering if we’re living in this new world where the
Attorney General can simply decide, yeah, it’s
unconstitutional, but it’s not so unconstitutional that
I’m not willing to enforce it, if we’re in this new
world, I — I don’t want these cases like this to come
before this Court all the time.

And I think they will come all the time if
that’s — if that’s — if that’s the new regime in the
Justice Department that we’re dealing with.

MR. SRINIVASAN: Justice Scalia, one
recognized situation in which an act of Congress won’t
be defended in court is when the President makes a
determination that the act is unconstitutional. That’s
what happened here. The President made an accountable
legal determination that this Act of Congress is
unconstitutional.

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

 

litigation.

CHIEF JUSTICE ROBERTS: Sometimes you do and
sometimes you don’t. What is the test for when you
think your obligation to take care that the laws be
faithfully executed means you’ll follow your view about
whether it’s constitutional or not or you won’t follow
your view?

MR. SRINIVASAN: Mr. Chief Justice, I’d
hesitate to give you a black-and-white algorithm. There
are — there are several considerations that would
factor into it. One of the considerations –

JUSTICE SCALIA: Excuse me. It’s not your
view. It’s the President’s. It’s only when the
President thinks it’s unconstitutional that you can
decline to defend it? Or what if the Attorney General
thinks it’s unconstitutional?

MR. SRINIVASAN: No, no. Of course –

JUSTICE SCALIA: Or the Solicitor General,
is that enough?

MR. SRINIVASAN: 28 U.S.C. 530(d)
presupposes — Congress presupposes that there are going
to be occasions in which a statute is — is not defended

because of a conclusion by the Attorney General that
it’s unconstitutional.

JUSTICE SCALIA: Oh, it can be either the
Attorney General or the Solicitor General?

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

situation in which the President made the determination.
And when the President makes that determination, there
are a few considerations that I think would factor into
the mix in determining whether enforcement will follow.
One of them would be the consequences of enforcement for
the individuals who are affected.

And so, for example, I would assume that if
it’s a criminal statute that we’re talking about, an
enforcement would require criminal enforcement against
somebody and — which would beget criminal sanctions.
That may be –

JUSTICE SCALIA: So when Congress enacts a
statute, it cannot be defended, it has no assurance that
that statute will be defended in court, if the Solicitor
General in his view thinks it’s unconstitutional?

MR. SRINIVASAN: There have —
Justice Scalia –

JUSTICE SCALIA: Is that right?

MR. SRINIVASAN: — there have been
occasions in the past.

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
appellate authority.

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
participate?

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

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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
aggrieved?

MR. SRINIVASAN: I guess we’d — I’d
subscribe to the aggrievement analysis that the Court
made in Chadha at pages 929 to 931 of its opinion. And
what the Court said is this: “When an agency of the
United States is a party to a case in which an act of
Congress that it administers is held unconstitutional,

it is an aggrieved party. The agency’s status as an
aggrieved party is not altered by the fact that the
Executive may agree with the holding that the statute in
question is unconstitutional.” That description is on
all fours with the circumstances of this case.

JUSTICE ALITO: Could I just — before you
go on to the House group, could I just clear up
something? In your brief, you argue that you are
representing all three branches of the Government, is
that right?

MR. SRINIVASAN: Correct.

JUSTICE ALITO: You’re — you’re
representing the Judiciary as you stand before us here
today –

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
well?

MR. SRINIVASAN: Well, I think — I guess
what I would say is this: The United — the United
States — the Executive Branch represents the sovereign
interests of the United States before the Court. It’s
not — I think the point of this is that it’s not that
the Executive Branch is representing the Executive
Branch alone.

The Executive Branch is representing the
sovereign interests of the United States, and those
interests would include the interests of the Congress
that enacted the law, the interests of the President
that signed it, and the interests of the Judiciary in
pronouncing on what the law is. And the course of
action that the President chose to undertake here is in
keeping with all of those considerations.

JUSTICE KAGAN: Mr. Srinivasan, Chadha says
what you said it said about what it means to be
aggrieved –

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
contrary.

If we were aggrieved in the circumstances of
Chadha, it seems to me it necessarily follows that we’re
injured. We’re injured in a couple of ways. An act of
Congress has been declared unconstitutional, which
Chadha itself says constitutes aggrievement and
therefore constitutes injury. In this case also, we’re
required to pay a judgment –

JUSTICE SCALIA: Didn’t Chadha — didn’t
Chadha suggest that Congress could have standing in -in
Chadha?

MR. SRINIVASAN: I’m sorry?

JUSTICE SCALIA: In Chadha, there was an

argument that Congress had standing, because what was at
issue in the case was precisely a prerogative of
Congress to exercise the one-house or two-house veto.

MR. SRINIVASAN: There wasn’t a — there -that
was an issue in Chadha. I don’t know that that
issue was joined, actually, Justice Scalia. The Court
did say at page 939 of its opinion that Congress is a
proper party to defend the constitutionality of the Act
and a proper petitioner, and I think that’s the best
language for the other side on this issue.

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
it.

And that’s accounted for by an amicus type

role, and I think that’s what the Court had in mind in
Chadha, because the two cases that are cited in support
of that proposition were both cases in which there was
an appointed amicus. So that — that deals with that
aspect of Chadha.

The other aspect of Chadha is the sentence

that I alluded to earlier. And I guess I’m not — I’m
not going to tell you that that sentence doesn’t bear on
the issue at all, but I will say this: What’s cited in
that is 28 U.S.C. 1254.

So I think the point that was directly -directly
being made is that the House and Senate were
parties for purposes of the statute and they were
parties because they had intervened and so they had
party status.

JUSTICE SOTOMAYOR: So are you accepting the
amici’s formulation that somehow the representative has
to be of both houses and not just one?

MR. SRINIVASAN: No. I guess my — my point
is a little bit different. My point is that this was
talking about whether they’re a party for statutory
purposes under 1254. I don’t read this to address the
question of Article III standing.

On the question of Article III standing, I
guess what I would say is this: Chadha at most, if it
says anything about Article III standing — and I don’t
know that it does with respect to the House or Senate -at

most what it would say was in the unique
circumstances of that case, where you had a legislative
veto that uniquely affected a congressional
prerogative –

JUSTICE SOTOMAYOR: So you take the position
that Congress –

MR. SRINIVASAN: — there might be standing
in that situation. Even that I don’t want to concede,
but –

JUSTICE SOTOMAYOR: Well, I want to know
what you’re conceding.

MR. SRINIVASAN: I’m conceding that at
most –

JUSTICE SOTOMAYOR: Let’s assume this very
case. Would — who would ever have standing on behalf
of Congress? Anyone? Or are you saying there’s never
standing?

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
sentence.

MR. SRINIVASAN: — this thought. Thank
you, Mr. Chief Justice.

Here, I don’t think the interest that’s
being asserted is even in the same plane as the one that

was asserted and found deficient in Raines v. Byrd.

CHIEF JUSTICE ROBERTS: Thank you, counsel.

Mr. Clement?

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
legislation.

MR. CLEMENT: Well, Justice Sotomayor –

JUSTICE SOTOMAYOR: It’s a law of the United
States and the person who defends it generally is the
Solicitor — Solicitor General.

MR. CLEMENT: Sure, generally, unless and
until they stop defending it, at which point we
submit –

JUSTICE SOTOMAYOR: Well, then, why
shouldn’t — why shouldn’t taxpayers have a right to
come in? And we say they don’t.

MR. CLEMENT: Because the House is very -in
a very different position in a case like this and in
Chadha from just the general taxpayer. Now, in a case
like Chadha, for example, you’re right, it was the
one-house veto, if you will, that was at issue. But it
would be a strange jurisprudence that says that the
House has standing to come in and defend an

unconstitutional one-house veto, but it doesn’t have
standing to come in and defend its core Article I
prerogative, which is to pass statutes and have those
statutes –

JUSTICE KENNEDY: Well, that — that assumes
the premise. We didn’t — the House didn’t know it was
unconstitutional. I mean –

MR. CLEMENT: Well, with all due respect,
Justice Kennedy, I think the House –

JUSTICE KENNEDY: We are talking about ex
ante, not ex post, what is standing at the outset? And
the House says this is constitutional.

MR. CLEMENT: Sure. And there is a

presumption that its acts are constitutional. That
presumption had real life here because when Congress was
considering this statute it asked the Justice Department
three times whether DOMA was constitutional, and three
times the Justice Department told them that it was in
fact constitutional. So I think it’s a fair assumption
that they at least have standing to have that
determination made by the courts, and this Court has
held that in the context of State legislatures and the
courts have –

JUSTICE KENNEDY: So you don’t think that
there is anything to the argument that in Chadha the
House had its own unique institutional responsibilities
and prerogatives at stake, either the one-house veto or

the legislative veto?

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

JUSTICE KENNEDY: That’s irrelevant?

MR. CLEMENT: I don’t think — I don’t think
it’s irrelevant. I would say two things. One is, I
don’t think there was anything particularized about the
fact that it was the House that exercised the one-house
veto, because the Court allowed the Senate to
participate as well and the Senate’s interest in that
was really just the constitutionality of the legislation

and perhaps the one-house veto going forward.

But what I would say is I just — I would
continue to resist the premise, which is that the
House’s prerogatives aren’t at stake here. The House’s
single most important prerogative, which is to pass
legislation and have that legislation, if it’s going to
be repealed, only be repealed through a process where
the House gets to fully participate.

CHIEF JUSTICE ROBERTS: What if you — what
if you disagree with — the executive is defending one
of your laws, if that’s the way you insist on viewing
it, and you don’t like their arguments, you say, they
are not making the best argument. Is that a situation
in which you have standing to intervene to defend the
law in a different way than the executive?

MR. CLEMENT: No, I would say we would not,
Mr. Chief Justice. I would say in that circumstance the
House would have the prerogative to file an amicus brief
if it wanted to, but that’s because of a sound
prudential reason, which is when the Executive is
actually discharging its responsibility, its traditional
obligation to defend an Act of Congress, if Congress
comes in as a party it has the possibility of
second-guessing the way that they are actually defending
it.

But if the Executive is going to vacate the
premises or, in a case like this, not just vacate the
premises, but stay in court and attack the statute, you
don’t have that prudential concern. And that’s why –

JUSTICE KAGAN: How about a couple of cases
sort of in the middle of the Chief Justice’s and this
one? So let’s say that the Attorney General decides
that a particular application of the statute is
unconstitutional and decides to give up on that
application. Or even let’s say the Attorney General
decides that the application of the statute might be
unconstitutional, so decides to interpret the statute
narrowly in order to avoid that application. Could
Congress then come in?

 

MR. CLEMENT: Well, I think — if in a
particular case, which is obviously not this case, the
Executive decides, we are not going to defend the
statute as applied I think in that situation the House
could come in. I think as a matter of practice it
probably wouldn’t.

And it’s not like the House and the Senate
are very anxious to exercise this prerogative. In the
30 years since the Chadha decision, there’s only been 12
instances in which the — in which the House has come in
and intervened as a party. And I think it’s very

important to recognize that whatever –

JUSTICE GINSBURG: Does that include the -does
that include the courts of appeals or just this
Court?

MR. CLEMENT: That includes all courts, but
excluding the DOMA cases. So from the point of Chadha
until the DOMA cases, there were a total of 12 cases
where the House intervened as a party.

And I do think that particularly in the
lower court cases, it’s very important to understand
that party status is critical. I mean, in this case it
doesn’t make a huge differences if you are an amicus
with argument time versus a party. But in the district
court that makes all the difference. Only a party can
take a deposition.

JUSTICE BREYER: This is what — we have
always had the distinction between the public action and
the private action. A public action, which does not
exist under the Federal Constitution, is to vindicate
the interest in the law being enforced. Now, when the
government, State or Federal, in fact has the interest,
a special interest in executing the law, here given to
the President, and they can delegate that interest to
Congress, if they did, which arguably they didn’t do
here. But to say that any legislator has an interest on

his own without that delegation to defend the law is to
import in that context the public action into the
Federal Government.

Now, that — it hasn’t been done, I don’t
think, ever. I can see arguments for and against it,
but I can’t think of another instance where that’s

happened.

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
situation.

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

EngaygementgolddiamondRing Ad

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
for?

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
unconstitutional.

So I think Coleman is quite close. Karcher,
Arizonans against English, there was an authorization.
We would say H. Res. 5 is enough of authorization for
these purposes.

JUSTICE SOTOMAYOR: Can you tell me where
the authorization is here? I know that there is a
statute that gives the Senate specifically authorization
to intervene and that there was consideration of
extending that right to the House. But the appointment
of BLAG is strange to me, because it’s not in a statute,
it’s in a House rule.

So where — how does that constitute
anything other than a private agreement among some
Senators, the House leadership? And where — from where
do they derive the right, the statutory right, to take

on the power of representing the House in items outside
of the House? I know they control the procedures within
the House, but that’s a very different step from saying
that they can decide who or to create standing in some
way, prudential or otherwise, Article III or otherwise.

MR. CLEMENT: Well, Justice Sotomayor, I can
point you to two places. One is the House rules that
are pursuant to the rulemaking authority and approved by
the institution. They’re approved in every Congress.
Rule 2.8.

JUSTICE SOTOMAYOR: What other House Rule
creates the power of the majority leaders to represent
the House outside of the functions of the House?

MR. CLEMENT: I’m not sure there is another
one, but that’s the sole purpose of Rule 2.8. It
creates the Office of the General Counsel –

JUSTICE SOTOMAYOR: This would be, I think,
sort of unheard of, that –

MR. CLEMENT: I don’t think so,
Justice Sotomayor. That’s the same authority that gave
the House, essentially a predecessor to it — – it would
be the same authority that has had the House appear in
litigation ever since Chadha. In Chadha there was a
vote that authorized it specifically, but we have that
here in H. Res. 5, which is the second place I would

 

point you.

JUSTICE SOTOMAYOR: We don’t even have a
vote here.

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

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

January, the House passed a resolution that passed, that
authorized the BLAG to continue to represent the
interests of the House in this particular litigation.
So I think if there was a question before H. Res. 5,
there shouldn’t be now.

I would like to –

JUSTICE KENNEDY: Under your view, would the
Senate have the right to have standing to take the other
side of this case, so we have the House on one side and
the Senate on the other?

MR. CLEMENT: No, Justice Kennedy, they
wouldn’t have the standing to be on the other side of
this case. They would have standing to be on the same
side of this case, and I think that’s essentially what
you had happen in the Chadha case.

JUSTICE KENNEDY: Well, why not? They’re
concerned about the argument and you say that the House
of Representatives standing alone can come into the
court. Why can’t the Senate standing alone come into

 

court and intervene on the other side?

MR. CLEMENT: It — because it wouldn’t have
the authority to do so under Chadha. What — Chadha
makes the critical flipping of the switch that gives the
House the ability to intervene as a party is that the
Executive Branch declines to defend the statute. So if

the Senate wants to come in and basically take — share
argument time or something as an amicus, they can, but
there’s no need for them to participate as — as a
party.

And I would want to emphasize that in the
lower courts, participation by a party is absolutely
critical. It doesn’t make sense to have the party that
wants to see the statute invalidated be in charge of the
litigation in the district courts, because whether the
statute is going to be invalidated is going to depend on
what kind of record there is in the district court.

It’d be one thing, Justice Scalia, if all
that happened is they entered consent judgment. I
suppose then the thing would end, and then in the long
run, the Executive would be forced to do their job and
actually defend these statutes –

JUSTICE ALITO: Then why is –

MR. CLEMENT: — but if that’s not going to
happen –

JUSTICE ALITO: Then why is it sufficient
for one house to take the position that the statute is
constitutional? The enactment of legislation requires
both houses, and usually the signature of the President.

MR. CLEMENT: Justice Alito, I think it
makes perfect sense in this context, because every –

each individual house has a constitutional rule before a
statute is repealed. And so yes, it takes two of them
to make the law. But each of their’s participation is
necessary to repeal a law. So if the Executive wants to
go into court and effectively seek the judicial repeal
of a law, it makes sense that one house can essentially
vindicate its role in our constitutional scheme by
saying, wait a minute, we passed that law; it can’t be
repealed without our participation.

JUSTICE ALITO: Well, if the law is passed
by a bare majority of one of the houses, then each
member of that — of that house who was part of the
majority has the same interest in defending its
constitutionality.

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 inChadha.

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 comingin and defending the constitutionality of an act of
Congress. Or more to the point, there’s nothing
inherently unlegislative about coming in and making
arguments in defense of the statute.

And if that’s critical, absolutely necessary
to ensure there’s an adverse presentation of the issues,
well, there’s no reason the House should have to do that
with one hand tied behind its back. If its
participation is necessary, it should participate as a
full party. And as I say, that’s critically important
in the lower courts so they can take depositions, build
a factual record, and allow for a meaningful defense of
the statute.

Because the alternative really puts the
Executive Branch in an impossible position. It’s a
conflict of interest. They’re the ones that are making
litigation decisions to promote the defense of a statute
they want to see invalidated. And if you want to see
the problems with their position, look at Joint Appendix
page 437. You will see the most anomalous motion to
dismiss in the history of litigation: A motion to
dismiss, filed by the United States, asking the district
court not to dismiss the case.

I mean, that’s what you get under their view
of the world, and that doesn’t serve as separation of
powers.

JUSTICE KENNEDY: That — that would give
you intellectual whiplash.

I’m going to have to think about that.

(Laughter.)

MR. CLEMENT: It — it does. It does. And
then — you know — and the last thing I’ll say is, we
saw in this case certain appeals were expedited, certain
appeals weren’t. They did not serve the interest of
defending the statute, they served the distinct interest
of the Executive.

Thank you.

CHIEF JUSTICE ROBERTS: Thank you, counsel.

Ms. Jackson, you have 4 minutes remaining.

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
private litigation.

In addition, State and local government
employees might have, for example, FMLA claims in which
the issue could arise. So I think that there are a
number of ways in which the issue could arise.

On the question of what the purpose of 1252
could be if it wasn’t to coincide with Article III
injury that was raised by my — my friend in his
argument, I wonder whether the Court in Chadha wasn’t
saying something like this: 1252 was Congress’s wish
list. It was like — like a citizen suit provision, to
be exercised only to the extent that Article III power
was there. That’s a way to make sense out of what the
Court is doing in the text and footnote there.

As to the question of BLAG, which has been
very fully discussed already, I do want to say that
after-the-fact authorization seems to me quite troubling
and inconsistent with this Court’s approach in Summers

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

plurality in Lujan, where you — you — if a party has
standing, they need to have it in the first court that
they’re in, either when it starts or certainly before
judgment.

And the rule as Justice Sotomayor observed

just doesn’t seem to say anything about authority to
litigate. I think that in addition, the — the big
problem here is the injury being complained of is
inconsistent with the separation of powers.

Bowsher and Buckley make very clear that
once the litigation is enacted, Congress’s authority to
supervise it is at an end. It goes over to the
Executive Branch. And whether the Executive Branch does
it well or badly in the view of Congress, it’s in its
domain. And separation of powers will not be meaningful
if all it means is the Congress has to stay out unless
it thinks that the President is doing it badly.

So I think Article II helps give shape to
what kinds of injuries alleged by parts of Congress can
be cognizable.

Finally, the three — two or three cases
cited by my colleague who last spoke: Coleman, Karcher
and Arizona, all involved State level of government,
where the Federal separation of powers doctrines
articulated in cases like Bowsher and Buckley were not
at issue.

Unless there are other questions, I will sit

down.

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
here.

JUSTICE BREYER: Maybe I — as long as you
have a minute, I — what did you think of Mr. Clement’s
argument this way, that — that the execution — can
I –

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
Constitution.

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
Court.

MS. JACKSON: Thank you, Your Honor.

CHIEF JUSTICE ROBERTS: Thank you.

We’ll now take a very short break and turn
to the merits.

(Recess.)

CHIEF JUSTICE ROBERTS: I meant that we
would take a break, not that — we will continue
argument in the case on the merits.

Mr. Clement?

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
is?

MR. CLEMENT: Well, we’ve never had that,
Your Honor, and I think that there is a difference when
it comes to divorce, because with divorce uniquely, you
could have the — possibility that somebody’s married to
two different people for purposes of State law and
Federal law.

But with the basic question of even whether
to recognize the marriage — or probably the best way to
put it is just whether the Federal law treats you as
married for a particular purpose or not, there always
have been differences between the Federal law treatment
and the State law treatment.

The Federal treatment, for example,
recognizes common law marriages in all States whereas a
lot of States don’t recognize common law marriages, but
Federal law recognizes that for some purposes — the

Social Security Act, I think it’s at page 4 of our
brief. And –

JUSTICE SOTOMAYOR: But only if the State
recognizes it.

MR. CLEMENT: No, I don’t think that is true
for purposes of that provision.

JUSTICE SOTOMAYOR: And so there is a common
law, Federal common law definition?

MR. CLEMENT: That’s my understanding,
that’s — as discussed –

JUSTICE SOTOMAYOR: I thought it was
reverse, that if the State law recognized common law

marriages, the Federal law –

MR. CLEMENT: My understanding is that there
is a Federal — that the Federal law recognizes in — in
the Social Security context even if it doesn’t; and in
all events, there are other situations — immigration
context, tax consequences. For tax consequences, if you
get a divorce every December, you know, for tax
consequences, the State may well recognize that divorce.
The Federal Government has long said, look, we are not
going to allow you get a divorce every December just to
get remarried in January so you’ll have a filing tax
status that works for you that is more favorable to you.

So the Federal Government has always treated

this somewhat distinctly; it always has its own efforts;
and I do think for purposes of the federalism issue, it
really matters that all DOMA does is take this term
where it appears in Federal law and define it for
purposes of Federal law. It would obviously be a
radically different case if Congress had, in 1996,
decided to try to stop States from defining marriage in
a particular way or dictate how they would decide it in
that way.

JUSTICE KENNEDY: Well, it applies to over
what, 1,100 Federal laws, I think we are saying. So
it’s not — it’s — it’s — I think there is quite a bit
to your argument that if the tax deduction case, which
is specific, whether or not if Congress has the power it
can exercise it for the reason that it wants, that it
likes some marriage it does like, I suppose it can do
that.

But when it has 1,100 laws, which in our
society means that the Federal Government is intertwined
with the citizens’ day-to-day life, you are at — at
real risk of running in conflict with what has always
been thought to be the essence of the State police
power, which is to regulate marriage, divorce, custody.

MR. CLEMENT: Well, Justice Kennedy, two
points. First of all, the very fact that there are

1,100 provisions of Federal law that define the terms
“marriage” and “spouse” goes a long way to showing that
Federal law has not just stayed completely out of these
issues. It’s gotten involved in them in a variety of
contexts where there is an independent Federal power

that supported that.

Now, the second thing is the fact that DOMA
involves all 1,100 statutes at once is not really a sign
of its irrationality. It is a sign that what it is, and
all it has ever purported to be, is a definitional
provision. And like every other provision in the
Dictionary Act, what it does is it defines the term
wherever it appears in Federal law in a consistent way.
And that was part and parcel of what Congress was trying
to accomplish with DOMA in 1996.

JUSTICE KENNEDY: Well, but it’s not really
uniformity because it regulates only one aspect of
marriage. It doesn’t regulate all of marriage.

MR. CLEMENT: Well, that’s true but I don’t
think that’s a mark against it for federalism purposes,
and it — it addressed a particular issue at a point,
remember in 1996, Congress is addressing this issue
because they are thinking that the State of Hawaii
through its judicial action is about to change the
definition of marriage from a way that it had been

defined in every jurisdiction in the United States. And
what that meant is that when Congress passed every one
of the statutes affected by DOMA’s definition, the
Congress that was passing that statute had in mind the
traditional definition.

And so Congress in 1996 at that point says,
the States are about to experiment with changing this,
but the one thing we know is all these Federal statutes
were passed with the traditional definition in mind.
And if rational basis is the test, it has to be rational
for Congress then to say, well, we are going to reaffirm
what this word has always meant for purposes of Federal
law.

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
unit?

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.

PL1020

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
differently.

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
nothing.

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 –

(Laughter.)

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.

(Laughter.)

MR. CLEMENT: And — and obviously, every
one of those cases would have to be decided on its own.
But I do think there is a powerful interest when the
Federal Government classifies people –

JUSTICE BREYER: Yes, okay. Fine.

MR. CLEMENT: There’s a powerful interest in
treating –

JUSTICE BREYER: Fine, but once — the first
part. Every one of those cases has to be decided on its
own, okay? Now, what’s special or on its own that
distinguishes and thus makes rational, or whatever basis
you’re going to have here, treating the gay marriage
differently?

MR. CLEMENT: Well, again, if we’re — if
we’re coming at this from the premise that the States
have the option to choose, and then we come at this from
the perspective that Congress is passing this not in a
vacuum, they’re passing this in 1996. And what they’re
confronting in 1996 is the prospect that one State,
through its judiciary, will adopt same-sex marriage and
then by operation of the through full faith and credit
law, that will apply to any — any couple that wants to

go there.

And the State that’s thinking about doing
this is Hawaii; it’s a very nice place to go and get
married. And so Congress is worried that people are
going to go there, go back to their home jurisdictions,
insist on the recognition in their home jurisdictions of
their same-sex marriage in Hawaii, and then the Federal
Government will borrow that definition, and therefore,
by the operation of one State’s State judiciary,
same-sex marriage is basically going to be recognized
throughout the country.

And what Congress says is, wait a minute.
Let’s take a timeout here. This is a redefinition of an
age-old institution. Let’s take a more cautious
approach where every sovereign gets to do this for
themselves. And so Section 2 of DOMA says we’re going
to make sure that on full faith and credit principles
that a decision of one State –

JUSTICE SOTOMAYOR: But what gives the
Federal Government the right to be concerned at all at
what the definition of marriage is? Sort of going in a
circle. You’re saying — you’re saying, we can create
this special category — men and women — because the
States have an interest in traditional marriage that
they’re trying to protect. How do you get the Federal

Government to have the right to create categories of
that type based on an interest that’s not there, but
based on an interest that belongs to the States?

MR. CLEMENT: Well, at least two — two
responses to that, Justice Sotomayor. First is that one
interest that supports the Federal Government’s
definition of this term is whatever Federal interest
justifies the underlying statute in which it appears.
So, in every one of these statutes that affected, by
assumption, there’s some Article I Section 8
authority –

JUSTICE SOTOMAYOR: So they can create a
class they don’t like — here, homosexuals — or a class
that they consider is suspect in the marriage category,
and they can create that class and decide benefits on
that basis when they themselves have no interest in the
actual institution of marriage as married. The State’s
control that.

MR. CLEMENT: Just to clarify, Justice
Sotomayor, I’m not suggesting that the Federal
Government has any special authority to recognize
traditional marriage. So if — the assumption is that
nobody can do it. If the States can’t do it either,
then the Federal Government can’t do it. So the Federal
Government –

JUSTICE SOTOMAYOR: No, I’m — I’m
assuming –

MR. CLEMENT: Okay. So then the question
is –

JUSTICE SOTOMAYOR: Assuming I assume the
States can –

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

JUSTICE SOTOMAYOR: — what creates the
right –

MR. CLEMENT: — the Federal Government has
sort of two sets of authorities that give it sort of a
legitimate interest to wade into this debate. Now, one
is whatever authority gives rise to the underlying
statute. The second and complementary authority is
that, you know, the Federal Government recognizes that
it’s a big player in the world, that it has a lot of
programs that might give States incentives to change the
rules one way or another.

And the best way — one way to stay out of
the debate and let just the — the States develop this
and let the democratic process deal with this is to just
say, look, we’re going to stick with what we’ve always
had, which is traditional definition. We’re not going
to create a regime that gives people an incentive and
point to Federal law and say, well, another reason you

should have same-sex marriage is because then you’ll get
a State tax deduction. They stayed out of it. They’ve
said, look, we’re –

JUSTICE KENNEDY: But I — I understand the
logic in your argument. I — I hadn’t thought of the
relation between Section 2 and Section 3 in the way you
just said. You said, now Section 2 was in order to help
the States. Congress wanted to help the States. But
then Section 3, that Congress doesn’t help the States
which have come to the conclusion that gay marriage is
lawful. So that’s inconsistent.

MR. CLEMENT: No, no. They treat them -which
is to say they — they are preserving, they are
helping the States in the sense of having each sovereign
make this decision for themselves.

JUSTICE KENNEDY: We’re helping the States
do — if they do what we want them to, which is — which
is not consistent with the historic commitment of
marriage and — and of questions of — of the rights of
children to the State.

MR. CLEMENT: With respect, Justice Kennedy,
that’s not right. No State loses any benefits by
recognizing same-sex marriage. Things stay the same.
What they don’t do is they don’t sort of open up an
additional class of beneficiaries under their State law

for — that get additional Federal benefits. But things
stay the same. And that’s why in this sense –

JUSTICE GINSBURG: They’re not — they’re
not a question of additional benefits. I mean, they
touch every aspect of life. Your partner is sick.
Social Security. I mean, it’s pervasive. It’s not as
though, well, there’s this little Federal sphere and
it’s only a tax question.

It’s — it’s — as Justice Kennedy said,
1100 statutes, and it affects every area of life. And
so he was really diminishing what the State has said is
marriage. You’re saying, no, State said two kinds of
marriage; the full marriage, and then this sort of skim
milk marriage.

(Laughter.)

MR. CLEMENT: With respect, Justice
Ginsburg, that’s not what the Federal Government is
saying. The Federal Government is saying that within
its own realm in Federal policies, where we assume that
the Federal Government has the authority to define the
terms that appear in their own statute, that in those
areas, they are going to have their own definition. And
that’s –

JUSTICE KAGAN: Mr. Clement, for the most
part and historically, the only uniformity that the

Federal Government has pursued is that it’s uniformly
recognized the marriages that are recognized by the
State. So, this was a real difference in the uniformity
that the Federal Government was pursuing. And it
suggests that maybe something — maybe Congress had
something different in mind than uniformity.

So we have a whole series of cases which
suggest the following: Which suggest that when Congress
targets a group that is not everybody’s favorite group
in the world, that we look at those cases with some -even
if they’re not suspect — with some rigor to say,
do we really think that Congress was doing this for
uniformity reasons, or do we think that Congress’s
judgment was infected by dislike, by fear, by animus,
and so forth?

I guess the question that this statute
raises, this statute that does something that’s really
never been done before, is whether that sends up a
pretty good red flag that that’s what was going on.

MR. CLEMENT: A couple of responses, Justice
Kagan. First of all, I think I would take issue with
the premise, first of all, that this is such an unusual
Federal involvement on an issue like marriage. If you
look at historically, not only has the Federal
Government defined marriage for its own purposes

distinctly in the context of particular — particular
programs, it’s also intervened in — in other areas,
including in-state prerogatives. I mean, there’s a
reason that four state constitutions include a
prohibition on polygamy. It’s because the Federal
Congress insisted on them. There is a reason that, in
the wake of the Civil War and in Reconstruction,
Congress specifically wanted to provide benefits for
spouses of freed slaves who fought for the Union.

In order to do it, it essentially had to
create state law marriages, because in the Confederacy,
the slaves couldn’t get married. So they developed
their own State — essentially, a Federal, sort of,
condition to define who was married under those laws.
So where there was the needs in the past to get
involved, the Federal Government has got involved.

The other point I would make — but I also
eventually want to get around to the animus point — but
the other point I would make is: When you look at
Congress doing something that is unusual, that deviates
from the way they — they have proceeded in the past,
you have to ask, Well, was there good reason? And in a
sense, you have to understand that, in 1996, something’s
happening that is, in a sense, forcing Congress to
choose between its historic practice of deferring to the

States and its historic practice of preferring
uniformity.

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

intertwined.

MR. CLEMENT: I think — I think there is so
clearly is a Federal power because DOMA doesn’t define
any term that appears anywhere other than in a Federal
statute that we assume that there is Federal power for.
And if there is not Federal power for the statutes in
which these terms appear, that is a problem independent
of DOMA, but it is not a DOMA problem. So I will assume
we have Federal power.

Then the question is –

JUSTICE KENNEDY: Well, I think — I think
it is a DOMA problem. The question is whether or not
the Federal government, under our federalism scheme, has
the authority to regulate marriage.

MR. CLEMENT: And it doesn’t have the
authority to regulate marriages, as such, but that’s not
what DOMA does. DOMA provides certain — DOMA defines a
term as it appears in Federal statutes, many of those
Federal statutes provide benefits. Some of those
Federal statutes provide burdens. Some of those Federal
statutes provide disclosure obligations. It appears in
lots of places, and if any one of –

JUSTICE ALITO: Well, Congress could have
achieved exactly what it achieved under Section 3 by
excising the term “married” from the United States Code

and replacing it with something more neutral. It could
have said “certified domestic units,” and then defined
this in exactly the way that Section 3 — exactly the
way DOMA defines “marriage.”

Would that make a difference? In that
instance, the Federal Government wouldn’t be purporting
to say who is married and who is not married; it would
be saying who is entitled to various Federal benefits
and burdens based on a Federal definition.

MR. CLEMENT: That would make no difference,
Justice Alito. It does — the hypothetical helpfully
demonstrates, though, that when the Federal Government
is defining this term as it appears in the Federal Code,
it is not regulating marriage as such. And it is
important to recognize that people that are married in
their State, based on either the legislative acts or by
judicial recognition, remain married for purposes of
State law.

JUSTICE BREYER: When you started, you
started by, I think, agreeing — maybe not — that
uniformity in and of itself with nothing else is not
likely to prove sufficient, at least if it’s rational
basis-plus. And — and why? Because we can think of
weird categories that are uniform.

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

that’s where you are beginning to get. But so far, what
I’ve heard is, Well, looking at it on the merits, there
is certainly a lot of harms. And on the plus side what
there is, is, one, We don’t want courts deciding this.
But of course, as was just pointed out, in some States
it’s not courts, it’s the voters.

Then you say, Ah, but we want — there are
too many courts deciding it. Now, is — too many courts
might decide it. Now what else is there? What else?
want to — I want to be able to have a list, you know,
of really specific things that you are saying justify
this particular effort to achieve uniformity. And I
want to be sure I’m not missing any.

And so far, I’ve got those two I mentioned.
What else?

JUSTICE SCALIA: I didn’t understand that
courts were so central to your position. I — I thought
you didn’t want the voters in one State to dictate to
other States any more than you would want the courts in
one State to dictate to other States.

MR. CLEMENT: Well, I — I think that’s
true, Justice Scalia. The point about the courts,
though, is — I mean, it’s particularly relevant here.

JUSTICE BREYER: That means courts — the
courts, they do dictate in respect to time. They

dictate in respect to age. They dictate in respect to
all kinds of things. And what I’m looking for is:
What, in your opinion, is special about this homosexual
marriage that would justify this, other than this kind
of pure uniformity, if there is such a thing?

MR. CLEMENT: Well, let me — let me just
get on record that — to take issue with one of the
premises of this, which is we are at somehow rational
basis-plus land, because I would suggest strongly that
three levels of scrutiny are enough.

But in all events, if you are thinking about
the justifications that defend this statute, that
justify the statute, they are obviously in the brief.
But it’s uniformity — but it’s not — it’s not just
that Congress picked this, you know, We need a uniform
term, let’s pick this out of the air.

They picked the traditional definition that
they knew reflected the underlying judgments of every
Federal statute on the books at that point. They knew
it was the definition that had been tried in every
jurisdiction in the United States and hadn’t been tried
anywhere until 2004. And then, of course, it was, as
they correctly predicted, a judicial decision.

And in this context, in particular, they are
thinking about an individual — I mean, this couple goes

to Ontario, they get the — they get a marriage
certificate. A couple could — from Oklahoma, could
have gotten — gone to Ontario and gotten a marriage
certificate that same day and gone back to Oklahoma.
And from the Federal law perspective, there is certainly
a rational basis in treating those two couples the same
way.

If I could reserve my time.
CHIEF JUSTICE ROBERTS: Thank you,
Mr. Clement.
General Verrilli?
ORAL ARGUMENT OF DONALD B. VERRILLI, JR.,
ON BEHALF OF THE PETITIONER
SUPPORTING AFFIRMANCE
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
it?

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
that –

JUSTICE KENNEDY: You think Congress can use
its powers to supercede the traditional authority and
prerogative of the States to regulate marriage in all
respects? Congress could have a uniform definition of
marriage that includes age, consanguinity, etc., etc.?

GENERAL VERRILLI: No, I’m not saying that,
Your Honor. I think if Congress passed such a statute,
then we would have to consider how to defend it. But
that’s not –

JUSTICE KENNEDY: Well, but then there is a
federalism interest at stake here, and I thought you
told the Chief Justice there was not.

GENERAL VERRILLI: Well, with respect to
Section 3 of DOMA, the problem is an equal protection
problem from the point of view of the United States.

JUSTICE KAGAN: Yes, but, General, surely
the question of what the Federal interests are and

whether those Federal interests should take account of
the historic State prerogatives in this area is relevant
to the equal protection inquiry?

GENERAL VERRILLI: It’s central to the
inquiry, Justice Kagan. I completely agree with that
point.

CHIEF JUSTICE ROBERTS: Oh, so it would be
central to the inquiry if Congress went the other way,
too?

GENERAL VERRILLI: Well, the difference is
what Section 3 does is impose this exclusion from
Federal benefits on a class that has undeniably been
subject to a history of terrible discrimination on the
basis of –

CHIEF JUSTICE ROBERTS: I understand that.
That’s your equal protection argument. It’s not very
responsive to my concern I’m trying to get an answer to.
You don’t think federalism concerns come into play at
all in this, right?

GENERAL VERRILLI: Well, I think — I just
want to clarify. The equal protection question would be
different than the other circumstance. That’s a matter
of –

CHIEF JUSTICE ROBERTS: I know the equal
protection argument.

GENERAL VERRILLI: But the federalism
concerns come into play in the following way: In that
Mr. Clement has made the argument that, look, whatever
States can do in terms of recognizing marriage or not
recognizing marriage, the Federal Government has
commensurate authority to do or not do. We don’t think
that’s right as a matter of our equal protection
analysis because we don’t think the Federal Government
should be thought of as the 51st state. States, as we
told the Court, yesterday we believe heightened scrutiny
ought to apply even to the State decisions –

JUSTICE KENNEDY: But you’re — you are
insisting that we get to a very fundamental question
about equal protection, but we don’t do that unless we
assume the law is valid otherwise to begin with. And we
are asking is it valid otherwise. What is the Federal
interest in enacting this statute and is it a valid
Federal interest assuming, before we get to the equal
protection analysis?

GENERAL VERRILLI: Yeah. We think whatever
the outer bounds of the Federal Government’s authority,
and there certainly are outer bounds, would be, apart
from the equal protection violation, we don’t think that
Section 3 apart from equal protection analysis raises a
federalism problem. But we do think the federalism

analysis does play into the equal protection analysis
because the Federal — the Federal Government is not the
51st state for purposes of –of the interests that Mr.
Clement has identified on behalf of BLAG.

JUSTICE ALITO: Can I take you back to the
example that you began with, where a member of the
military is injured. So let’s say three soldiers are
injured and they are all in same-sex relationships, and
in each instance the other partner in this relationship
wants to visit the soldier in a hospital.

First is a spouse in a State that allows
same-sex marriage, the second is a domestic partner in a
State that an allows that but not same-sex marriage, the
third is in an equally committed loving relationship in
a State that doesn’t involve either. Now, your argument
is that under Federal law the first would be admitted,
should be admitted, but the other two would be kept out?

GENERAL VERRILLI: The question in the case,
Justice Alito is whether Congress has a sufficiently
persuasive justification for the exclusion that it has
imposed. And it — and it does not. The only way in
which — that BLAG’s arguments for the constitutionality
of this statute have any prospect of being upheld is if
the Court adopts the minimal rationality standard of Lee
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 SOTOMAYOR: General Verrilli, I have
a question. You think, I think from your brief
yesterday and today, that on some level sexual
orientation should be looked on an intermediate standard
of scrutiny?

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
advocating here.

And what BLAG’s got to do in order to
satisfy equal protection scrutiny is justify the choice
between one and the other, and the difference between
the two is that the Section 3 choice is a choice that –

Section 3 choice is a choice that discriminates. So
it’s not simply a matter sufficient to say, well,
uniformity is enough. Section 3 discriminates.

CHIEF JUSTICE ROBERTS: So as soon as one
State adopted same sex marriage, the definition of
marriage throughout the Federal code had to change?
Because there is no doubt that up until that point every
time Congress said “marriage” they understood they were
acting under the traditional definition of marriage.

GENERAL VERRILLI: Well, I don’t know,
Mr. Chief Justice, why you wouldn’t assume that what
Congress was doing when it enacted a statute,
particularly a statute that had the word “marriage” in
it, was assuming that the normal rule that applies in
the vast majority of circumstances of deference to the
State definition of marriage would be the operative
principle.

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
Clause.

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
there.

JUSTICE SOTOMAYOR: General, your bottom
line is, it’s an equal protection violation for the
Federal Government, and all States as well?

GENERAL VERRILLI: Yes, Your Honor, and
that’s the — we took the position we took yesterday
with respect to marriage — the analysis –

JUSTICE SOTOMAYOR: Is there any argument
you can make to limit this to this case, vis-à-vis the
Federal Government and not the States?

GENERAL VERRILLI: Well, as we said
yesterday, we think it’s an open question with respect
to State recognition of marriage, and they may well be
able to advance interests — they may be able to advance
it. I guess I shouldn’t say “may well,” because I do
think it would be difficult, as we said yesterday. They
may be able to advance interests that would satisfy
heightened scrutiny and justify non-recognition –

JUSTICE BREYER: Then yet — but here –

GENERAL VERRILLI: But — but here, the
Federal Government’s not in the same position because as
BLAG concedes, the Federal Government at the most can
act at the margins in influencing these decisions about
marriage and child rearing at the State level. And the
Second Circuit and the First Circuit both concluded that
there’s no connection at all, and that’s of course
because Section 3 doesn’t make it any more likely that
unmarried men and women in States — that — unmarried
men and women who confront an unplanned pregnancy are
going to get married.

And — and elimination of Section 3 wouldn’t
make it any less likely that unmarried men and women are
going to get married. It doesn’t have any effect at
all. It doesn’t have any connection at all. So it’s
not at the margins. There’s no interest at all at
this — in DOMA in promoting –

JUSTICE BREYER: Or if there’s no
interest — I mean, I’m back where we were yesterday.
It seems to me, forgetting your — your preferable
argument, it’s a violation of equal protection
everywhere. Well, if it is, then all States have to
have something like pacts. And if they have to have
something like pacts, then you say then they also have

to allow marriage.

So then are you not arguing they all have to
allow marriage? And then you say no. So with that
point –

GENERAL VERRILLI: But our point here,
Justice Breyer, is that whatever — may I finish?

Thank you.

Whatever the issue is, with — whatever the
outcome is with respect to States and marriage, that the
Federal Government’s interest in advancing those
justifications through Section 3 of DOMA is so
attenuated that two Federal courts of appeals have seen
it as non-existent, and it cannot justify Section 3.

CHIEF JUSTICE ROBERTS: Thank you, General.

Ms. Kaplan?

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
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. KAPLAN: Right.

CHIEF JUSTICE ROBERTS: — but a federalism
issue, Congress said, we’re going to recognize same-sex
couples — committed same-sex couples — even if the
State doesn’t, for purposes of Federal law?

MS. KAPLAN: Obviously, with respect to
marriage, the Federal Government has always used the
State definitions. And I think what you’re –

Mr. Chief Justice, what you’re proposing is to extend -the
Federal Government extend additional benefits to gay
couples in States that do not allow marriage, to
equalize the system.

CHIEF JUSTICE ROBERTS: I just am asking
whether you think Congress has the power to interfere
with the — to not adopt the State definition if they’re
extending benefits.

Do they have that authority?

MS. KAPLAN: I think the question under the
Equal Protection Clause is what — is what the
distinction is.

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 –

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
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.

(Laughter.)

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.

Would — would you not have essentially the
same equal protection argument there that you have now?

MS. KAPLAN: Well, let me — let me answer
that question very clearly. Our position is only with
respect to the nine States — and I think there are two
others that recognize these marriages. So if my
client — if a New York couple today marries and moves
to North Carolina, one of which has a constitutional
amendment, a State constitutional amendment — and one
of the spouses dies, they would not — and estate taxes
determine where the person dies, they would not be
entitled to the deduction.

That is not our claim here.

Moreover, Justice Alito, in connection with
a whole host of Federal litigation, there has been

Federal litigation for hundreds of years with respect to
the residency of where people live or don’t live, or
whether they are divorced or not divorced throughout the
Federal system. And the Federal Government has always
handled that and has never before — and we believe this
is why it’s unconstitutional — separated out a class of
married gay couples solely because they were gay.

JUSTICE ALITO: Just — if I could follow up
with one — one question. What if the — the
hypothetical surviving spouse, partner in North
Carolina, brought an equal protection argument, saying
that there is no — it is unconstitutional to treat me
differently because I am a resident of North Carolina
rather than a resident of New York. What would be -would
that be discrimination on the basis of sexual
orientation? What would be the level of scrutiny?
Would it survive?

MS. KAPLAN: That would be certainly a
different case. It’d be more similar to the case I
think you heard yesterday than the case that we have
today. We certainly believe that sexual-orientation
discrimination should get heightened scrutiny. If it
doesn’t get heightened scrutiny, obviously, it’d be
rational basis, and the question would be what the State
interests were in not allowing couples, for example, in

North Carolina who are gay to get married.

No one has identified in this case, and I
don’t think we’ve heard it in the argument from my
friend, any legitimate difference between married gay
couples on the one hand and straight married couples on
the other that can possibly explain the sweeping,
undifferentiated and categorical discrimination of DOMA,
Section 3 of DOMA.

And no one has identified any legitimate
Federal interest that is being served by Congress’s
decision, for the first time in our nation’s history to
undermine the determinations of the sovereign States
with respect to eligibility for marriage. I would
respectfully contend that this is because there is none.

Rather, as the title of the statute makes
clear, DOMA was enacted to defend against the marriages
of gay people. This discriminatory purpose was rooted
in moral disapproval as Justice Kagan pointed out.

JUSTICE BREYER: What — what do you think
of his — the argument that I heard was, to put the
other side, at least one part of it as I understand it
said: Look, the Federal Government needs a uniform
rule. There has been this uniform one man – one woman
rule for several hundred years or whatever, and there’s
a revolution going on in the States. We either adopt

the resolution — the revolution or push it along a
little, or we stay out of it. And I think Mr. Clement
was saying, well, we’ve decided to stay out of it –

MS. KAPLAN: I don’t –

JUSTICE BREYER: — and the way to stay out
of it is to go with the traditional thing. I mean, that
— that’s an argument. So your answer to that argument
is what?

MS. KAPLAN: I think it’s an incorrect
argument, Justice Breyer, for the –

JUSTICE BREYER: I understand you do; I’d
like to know the reason.

(Laughter.)

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
Government has.

There is little doubt that the answer to the
question of why Congress singled out gay people’s
marriages for disrespect through DOMA. The answer can’t
be uniformity as we’ve discussed. It can’t be cost
savings, because you still have to explain then why the
cost savings is being wrought at the expense of married
couples who are gay; and it can’t be any of the State
interests that weren’t discussed, but questions of
family law in parenting and marriage are done by the
States, not by the Federal Government.

The only — the only conclusion that can be
drawn is what was in the House Report, which is moral
disapproval of gay people, which the Congress thought
was permissible in 1996 because it relied on the Court’s
Bowers decision, which this Court has said was wrong,
not only at the time it was overruled in Lawrence, but
was wrong when it was decided.

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
1996?

MS. KAPLAN: I — yes, it was much, much
fewer at the time. I don’t have that number, Justice
Ginsburg; I apologize.

CHIEF JUSTICE ROBERTS: I suppose the sea
change has a lot to do with the political force and
effectiveness of people representing, supporting your
side of the case?

MS. KAPLAN: I disagree with that,
Mr. Chief Justice, I think the sea change has to do,
just as discussed was Bowers and Lawrence, was an
understanding that there is no difference — there was
fundamental difference that could justify this kind of
categorical discrimination between gay couples and
straight couples.

CHIEF JUSTICE ROBERTS: You don’t doubt that
the lobby supporting the enactment of same sex-marriage
laws in different States is politically powerful, do
you?

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
the case.

MS. KAPLAN: To flip the language of the
House Report, Mr. Chief Justice, I think it comes from a
moral understanding today that gay people are no
different, and that gay married couples’ relationships
are not significantly different from the relationships
of straight married people. I don’t think –

CHIEF JUSTICE ROBERTS: I understand that.
I am just trying to see how — where that that moral
understanding came from, if not the political
effectiveness of a particular group.

MS. KAPLAN: I — I think it came — is,
again is very similar to the, what you saw between
Bowers and Lawrence. I think it came to a societal
understanding.

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,
Ms. Kaplan.

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
Act –

JUSTICE GINSBURG: Rational basis,

Mr. Clement — is a problem in your briefing. You seem
to say and you repeat it today that there is three
tiers, and if you get into rational basis then it’s
anything goes. But the history of this Court is, in the
very first gender discrimination case, Reed v. Reed, the
Court did something it had never done in the history of
the country under rational basis. There was no
intermediate tier then. It was rational basis.

MR. CLEMENT: Well –

JUSTICE GINSBURG: And yet the Court said
this is rank discrimination and it failed.

MR. CLEMENT: And, Justice Ginsburg,
applying rational basis to DOMA, I think that there are
many rational bases that support it. And the Solicitor
General says, well, you know, the United States is not
the 51st State to be sure, but the Federal Government
has interests in uniformity that no other entity has.

And we heard today that there’s a problem;
when somebody moves from New York to North Carolina,
they can lose their benefits. The Federal Government
uniquely, unlike the 50 States, can say, well, that
doesn’t make any sense, we are going to have the same
rule. We don’t want somebody, if they are going to be
transferred in the military from West Point to Fort Sill
in Oklahoma, to resist the transfer because they are

going to lose some benefits.

It makes sense to have a uniform Federal
rule for the Federal Government. It is not so anomalous
that the term “marriage” is defined in the U.S. Code.
The very next provision of the Dictionary Act defines
“child.” These terms, although they are the primary
province of State governments, do appear in multiple
Federal statutes and it’s a Federal role to define those
terms.

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,
counsel.

The case is submitted.

(Whereupon, at 12:13 p.m., the case in the
above-entitled matter was submitted.)

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23:9 36:25 37:2 correct 16:17 8:9,14,24,24 Court-appointed 66:5,12 74:10
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contexts 60:5 95:1,4,21,21 53:17,19 54:23 cycle 113:11 62:14 64:4,9
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31:8 35:12 definitions 95:25 develop 69:20 directed88:17 distinct 19:5 50:6
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defends 35:24 20:10 63:12 72:3 discharged55:3 distinguishes
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definition 56:9 21:15,17 22:1 differential 58:10 62:4 98:13,14
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definitional 48:7 71:11 100:5 86:7 87:5,7
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90:17,23 93:18 77:16 81:13 entered8:15 eventually 73:18 45:25 46:15
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75:19 90:13,14 91:2 26:2,4 27:7 friend 51:9 89:24 82:2,14,21,24
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goes 11:24 52:7 76:13 77:6,12 20:8,9 25:5,6 86:14 52:25 53:2,7,10
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71:20 72:1,4,25 handled101:5 historically 46:21 47:1,6,12 immune 113:13
73:16 75:11 happen7:11,16 71:25 72:24 48:12 49:3 immunity 48:8

Official – Subject to Final Review123
implicated65:11 influencing 93:5 54:8,9 62:17 invoking 7:20 11:10 12:6,12
implicates 55:21 inherently 48:21 66:6,9 67:24 involve 34:16 12:23 13:6,9,21
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jurisdictions 62:2 55:18 56:11,20 110:14 37:12,18 45:7 Laughter50:1
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part 11:18 14:7 47:8,10 53:14 105:16 106:2 plus 78:3 possible 6:13 9:9
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Official – Subject to Final Review
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reach 5:18 17:13 68:21 77:15 regulate 59:23 representative 33:21 36:21

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27:5 28:10 rooted102:17 98:14,17 12:5 18:14 20:5 Senators 42:21
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Official – Subject to Final Review
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75:5 78:11 79:2 96:10 97:5,6,14 timeout 67:13 63:17,17 65:19 two-house 31:3
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87:10 92:13,19 2.8 44:5,10 8 68:10 107:4
92:23 93:20 20 42:21 65:5 80 4:9
101:20 200 99:19 84 91:8 105:20York 2:3,3 62:21 2004 79:22 105:21
62:22 63:1,19 2007 63:23
63:20 100:7,17 2011 63:20 9
101:14 103:20 2013 1:11 9 106:20,21
111:19 27 1:11 107:4 110:15
York’s 63:9,22 28 23:23 25:3 929 27:22
33:4 931 27:22
$ 287 50:24 939 31:7 32:13
$300,000 14:16 94 4:11

Chicago Tribune – Supreme Court seems wary of broad gay marriage ruling

Supreme Court seems wary of broad gay marriage ruling
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CAPTIONS
1/30
Reuters
3:58 p.m. CDT, March 26, 2013

WASHINGTON – The Supreme Court signaled reluctance on Tuesday to rule broadly on the question of the right to marriage for gays and lesbians as the justices heard arguments on same-sex marriage for the first time.

As thousands of demonstrators on both sides of America’s long-standing gay rights divide rallied outside, the court heard a spirited, 80-minute oral argument on whether to let stand a California ban on same-sex marriage.LOVE IS LOVE

Despite the case being one of the most eagerly anticipated legal showdowns of the year, some of the nine justices showed an unwillingness to dive headfirst into the delicate and divisive issue.

Though polls show growing support among Americans for gay marriage, only nine states recognize it, while 30 states have constitutional amendments prohibiting it.

Justice Anthony Kennedy, a potential swing vote, gave a clear indication of where he stood when he warned of the court entering “uncharted waters.”

It was the first of two days of arguments. On Wednesday, the court will consider the related question of whether the 1996 federal Defense of Marriage Act (DOMA), which denies federal benefits to married same-sex couples, should be struck down.

Rulings in both cases are not expected until June.

In making his antipathy to a broad ruling clear, Kennedy even raised the prospect of the court dismissing the case altogether, a relatively unusual move that would leave intact a federal appeals court ruling that had earlier struck down the California law, known as Proposition 8.

If dismissal were the outcome of the Supreme Court’s consideration of Proposition 8, gay marriages in California could proceed, but the case would have no impact on other states, as gay rights activists had hoped. It would also mean that the high court could stay silent on the issue, at least in the short term.

Kennedy was not the only one with reservations. Justice Samuel Alito also urged caution, noting that gay marriage, as a concept, is “newer than cellphones and the Internet.”

None of the justices indicated support for the Obama administration’s compromise solution, which would strike down Proposition 8 and require the eight other states that already recognize civil unions or domestic partnerships to allow gays and lesbians to marry.

COMPETING RALLIES

Outside the court, demonstrators did not share the justices’ reluctance to take a clear stand, with hundreds gathered representing both sides. Anti-gay marriage protesters marched past the imposing Supreme Court building accompanied by police on motorcycles, drawing jeers and shouts from a pro-gay marriage rally, but there were no physical confrontations.

“No hate – we just disagree!” yelled one marcher, holding a sign that proclaimed children do best with a mother and father.

Jay Golon, a New York City educator who was at the pro-gay marriage rally, said he has many students with same-sex parents.

“It’s a family,” he said. “That’s all.”

Inside the hushed courtroom, filled to capacity with lawyers and spectators, some of whom had waited for days to get a seat, it quickly became apparent that the justices were more interested in legal technicalities than flowery rhetoric.

One key issue is whether California opponents of gay marriage even had a right to be heard in federal court.

If the court were to find the proponents did not have standing, then it would not reach the merits of that case. That would mean that an earlier federal district court ruling that struck down Proposition 8 would be left intact. Further litigation would ensue over whether the district court rule would apply statewide.

U.S. citizens, in general, do not have a right to sue to enforce laws they favor. Chief Justice John Roberts pressed lawyer Charles Cooper, who represents gay marriage opponents, on why his clients are any different as they seek to enforce Proposition 8.

“I don’t think we’ve ever allowed anything like that,” Roberts said.

DEFINITION OF MARRIAGE

On the broader question of same-sex marriage, pressed by attorney Theodore Olson on behalf of two California same-sex couples, some conservative justices seemed eager to raise objections to the court making a definitive statement, citing a lack of scientific data on same-sex couples raising children.

Justice Antonin Scalia said there is “considerable disagreement” about whether gays and lesbians should be able to raise children.

Kennedy agreed that there is “substance to the point that sociological information is new.”

On the liberal wing, justices probed Cooper on his assertion that the government’s interest in promoting procreation is a primary reason for limiting the definition of marriage.

Both Justice Elena Kagan and Justice Stephen Breyer questioned Cooper on how his definition of marriage squares with the fact that infertile opposite-sex couples can marry.

“There are lots of people who get married who can’t have children,” Breyer said.

The court will reconvene on Wednesday morning to weigh the DOMA statute.

Unlike Proposition 8, that case does not give the court the opportunity to issue a broad ruling for or against gay marriage because the case relates only to a federal law that limits the definition of marriage to opposite-sex couples for the purposes of federal benefits.

Copyright © 2013, Reuters

Supreme Court Proposition 8 – Hollingsworth VS Perry Transcripts

IN THE SUPREME COURT OF THE UNITED STATESEngaygement Ring Ad

– – – – – – – – – – – – – – – – – x

 

DENNIS HOLLINGSWORTH, ET AL., : Petitioners : No. 12-144
v. :


KRISTIN M. PERRY, ET AL. :

 

– – – – – – – – – – – – – – – – – x
Washington, D.C.
Tuesday, March 26, 2013

The above-entitled matter came on for oral

argument before the Supreme Court of the United States

at 10:07 a.m.


APPEARANCES:CHARLES J. COOPER, ESQ., Washington, D.C.; on behalf of

Petitioners.

THEODORE B. OLSON, ESQ., Washington, D.C.; on behalf of
Respondents.

DONALD B. VERRILLI, JR., ESQ., Solicitor General,
Department of Justice, Washington, D.C.; for United
States, as amicus curiae, supporting Respondents.

C O N T E N T S

ORAL ARGUMENT OF PAGE
CHARLES J. COOPER, ESQ.
On behalf of the Petitioners 3
ORAL ARGUMENT OF
THEODORE B. OLSON, ESQ.
On behalf of the Respondents 28
ORAL ARGUMENT OF
DONALD B. VERRILLI, JR., ESQ.
For United States, as amicus curiae, 49
supporting Respondents

REBUTTAL ARGUMENT OF
CHARLES J. COOPER, ESQ.
On behalf of the Petitioners 63

P R O C E E D I N G S

(10:07 a.m.)
CHIEF JUSTICE ROBERTS: We’ll hear argument
this morning in Case 12-144, Hollingsworth v. Perry.
Mr. Cooper?
ORAL ARGUMENT OF CHARLES J. COOPER
ON BEHALF OF THE PETITIONERS
MR. COOPER: Thank you, Mr. Chief Justice,
and may it please the Court:

New York’s highest court, in a case similar

 to this one, remarked that until quite recently, it was
 an accepted truth for almost everyone who ever lived in
any society in which marriage existed –

CHIEF JUSTICE ROBERTS: Mr. Cooper, we have
jurisdictional and merits issues here. Maybe it’d be
best if you could begin with the standing issue.

MR. COOPER: I’d be happy to,
Mr. Chief Justice.

Your Honor, the official proponents of
Proposition 8, the initiative, have standing to defend
that measure before this Court as representatives of the
people and the State of California to defend the
validity of a measure that they brought forward.JUSTICE GINSBURG: Have we ever granted
standing to proponents of ballot initiatives?

MR. COOPER: No, Your Honor, the Court has
not done that. But the Court has never had before it a
clear expression from a unanimous State’s high court
that –

 

JUSTICE GINSBURG: Well, this is — this
is — the concern is certainly, the proponents are
interested in getting it on the ballot and seeing that
all of the proper procedures are followed, but once it’s
passed, they have no proprietary interest in it. It’s
law for them just as it is for everyone else. So how

are they distinguishable from the California citizenry
in general?

MR. COOPER: They’re distinguishable, Your
Honor, because the Constitution of the State of
California and its election code provide, according to
the unanimous interpretation of the California Supreme
Court, that the official proponents, in addition to the
other official responsibilities and authorities that
they have in the initiative process, that those official
proponents also have the authority and the
responsibility to defend the validity of that
initiative -JUSTICE SCALIA: I guess the attorney
general of this State doesn’t have any proprietary
interest either, does he?

MR. COOPER: No, Your Honor, nor did –

JUSTICE SCALIA: But — but he can defend
it, can’t he –

MR. COOPER: — nor did –

 

JUSTICE SCALIA: — because the law says he

can defend it.

MR. COOPER: That’s right, Your Honor. Nor

 

did the legislative leaders in the Karcher case have –

JUSTICE KAGAN: Could the State –

MR. COOPER: — any particular enforcement –

JUSTICE KAGAN: — could — could the State

assign to any citizen the rights to defend a judgment of
this kind?

MR. COOPER: Justice Kagan, that would be
a — a very tough question. It’s — it’s by no means
the question before the Court, because — because it
isn’t any citizen, it’s — it is the — it is the
official proponents that have a specific and — and
carefully detailed –

JUSTICE KAGAN: Well, I just — if you would
on the hypothetical: Could a State just assign to

 

anybody the ability to do this?

 

 

MR. COOPER: Your Honor, I think it very

well might. It very well might be able to decide that
any citizen could step forward and represent the

interests of the State and the people in that State –

CHIEF JUSTICE ROBERTS: Well, that would

 

be — I’m sorry, are you finished?

MR. COOPER: Yes, Your Honor.

CHIEF JUSTICE ROBERTS: Okay. That — that

 may be true in terms of who they want to represent,
but — but a State can’t authorize anyone to proceed in
Federal court, because that would leave the definition
under Article III of the Federal Constitution as to who
can bring — who has standing to bring claims up to each
State. And I don’t think we’ve ever allowed anything

like that.

MR. COOPER: But, Your Honor, I guess the

point I want to make is that there is no question the
State has standing, the State itself has standing to
represent its own interests in the validity of its own
enactments. And if the State’s public officials decline
to do that, it is within the State’s authority surely, I
would submit, to identify, if not all — any citizen or
at least supporter of the measure, certainly those, that
that very clear and identifiable group of citizens –

JUSTICE KENNEDY: Well, the Chief — the
Chief Justice and Justice Kagan have given a proper
hypothetical to test your theory. But in this case the
proponents, number one, must give their official

address, they must pay money, and they must all act in
unison under California law. So these five proponents
were required at all times to act in unison, so that
distinguishes — and to register and to pay money for
the — so in that sense it’s different from simply

saying any citizen.

MR. COOPER: But of course it is, and I
think the key –

JUSTICE SOTOMAYOR: But can you tell me -that’s
a factual background with respect to their right
to put the ballot initiative on the ballot, but how does
it create an injury to them separate from that of every
other taxpayer to have laws enforced?

MR. COOPER: Your Honor, the — the question
before the Court, I would submit, is not the injury to
the individual proponents; it’s the injury to the State.
The — the legislators in the Karcher case had no
individual particularized injury, and yet this Court
recognized they were proper representatives of the
State’s interests, the State’s injury –

JUSTICE SOTOMAYOR: At least one of the
amici have suggested that it seems counterintuitive to
think that the State is going to delegate to people who
don’t have a fiduciary duty to them, that it’s going to
delegate the responsibility of representing the State to

individuals who have their own views. They proposed the
ballot initiative because it was their individual views,
not necessarily that of the State. So –

MR. COOPER: Well –

JUSTICE SOTOMAYOR: — Justice Scalia
proffered the question of the Attorney General. The
Attorney General has no personal interest.

MR. COOPER: True.

JUSTICE SOTOMAYOR: He has a fiduciary
obligation.

MR. COOPER: The Attorney General, whether
it’s a fiduciary obligation or not, is in normal
circumstances the representative of the State to defend
the validity of the State’s enactments when they are

challenged in Federal court. But when that officer
doesn’t do so, the State surely has every authority and
I would submit the responsibility to identify
particularly in an initiative — an initiative context.

JUSTICE SOTOMAYOR: Why isn’t the fiduciary
duty requirement before the State can designate a
representative important?

MR. COOPER: Your Honor, I would submit to
you that I don’t think there’s anything in Article III
or in any of this Court’s decisions that suggest that a
representative of a State must be — have a fiduciary

duty, but I would also suggest –

JUSTICE SOTOMAYOR: Well, generally you
don’t need to specify it because generally the people
who get to enforce the legislation of the government are
people who are in government positions elected by the
people.

EngaygementgolddiamondRing Ad

MR. COOPER: And Your Honor –

JUSTICE SOTOMAYOR: Here these individuals
are not elected by the people or appointed by the
people.

MR. COOPER: And the California Supreme
Court specifically addressed and rejected that specific
argument. They said it is in the context when the
public officials, the elected officials, the appointed
officials, have declined, have declined to defend a
statute. A statute that, by the way, excuse me, in this
case a constitutional amendment, was brought forward by
the initiative process.

The Court said it is essential to the
integrity, integrity of the initiative process in that
State, which is a precious right of every citizen, the
initiative process in that State, to ensure that when
public officials — and after all, the initiative
process is designed to control those very public
officials, to take issues out of their hands.

And if public officials could effectively
veto an initiative by refusing to appeal it, then the
initiative process would be invalidated.

JUSTICE BREYER: That’s — historically, I
think, 40 States, many States have what was called a
public action. A public action is an action by any
citizen primarily to vindicate the interest in seeing
that the law is enforced. Now, that’s the kind of
action I think that this Court has interpreted the
Constitution of the United States, case in controversy,

to say that it does not lie in the Federal system.

And of course, if that kind of action is the
very kind that does not lie, well, then to say, but they
really feel it’s important that the law be enforced,
they really want to vindicate the process, and these are
people of special interests, we found the five citizens
who most strongly want to vindicate the interest in the
law being enforced and the process for making the law be
enforced, well, that won’t distinguish it from a public
action.

But then you say, but also they are
representing the State. At this point, the Dellinger
brief which takes the other side of it is making a
strong argument, well, they are really no more than a
group of five people who feel really strongly that we

should vindicate this public interest, and have good
reason for thinking it.

So you have read all these arguments that
it’s not really the agent and so forth. What do you
want to say about it?

MR. COOPER: What I want to say, Your Honor,
is according to the California Supreme Court, the
California Constitution says in terms that among the
responsibilities of official proponents, in addition to
the many other responsibilities that they step forward
and they assume in the initiative process, among those
responsibilities and authorities is to defend that
initiative if the public officials which the initiativ

e

process is designed to control have refused to do it.
It might as well say it in those terms, Your Honor.

CHIEF JUSTICE ROBERTS: Counsel, if you want
to proceed to the merits, you should feel free to do so.

MR. COOPER: Thank you very much, Your
Honor.

My — my — excuse me. As I was saying, the
accepted truth — excuse me. The accepted truth that -that
the New York high court observed is one that is
changing and changing rapidly in this country as people
throughout the country engage in an earnest debate over
whether the age-old definition of marriage should be

changed to include same-sex couples.

The question before this Court is whether
the Constitution puts a stop to that ongoing democratic
debate and answers this question for all 50 States. And
it does so only if the Respondents are correct that no
rational, thoughtful person of goodwill could possibly
disagree with them in good faith on this agonizingly
difficult issue.

The issues, the constitutional issues that
have been presented to the Court, are not of first
impression here. In Baker v. Nelson, this Court
unanimously dismissed for want of a substantial Federal
question.

JUSTICE GINSBURG: Mr. Cooper, Baker v.

Nelson was 1971. The Supreme Court hadn’t even decided
that gender-based classifications get any kind of
heightened scrutiny.

MR. COOPER: That is –

JUSTICE GINSBURG: And the same-sex intimate
conduct was considered criminal in many States in 1971,
so I don’t think we can extract much in Baker v. Nelson.

MR. COOPER: Well, Your Honor, certainly I
acknowledge the precedential limitations of a summary
dismissal. But Baker v. Nelson also came fairly fast on
the heels of the Loving decision. And, Your Honor, I

simply make the observation that it seems implausible in
the extreme, frankly, for nine justices to have — to
have seen no substantial Federal question if it is true,
as the Respondents maintain, that the traditional
definition of marriage insofar as — insofar as it does
not include same-sex couples, insofar as it is a gender
definition is irrational and can only be explained, can
only be explained, as a result of anti-gay malice and a
bare desire to harm.

JUSTICE KENNEDY: Do you believe this can be
treated as a gender-based classification?

MR. COOPER: Your Honor, I –

JUSTICE KENNEDY: It’s a difficult question
that I’ve been trying to wrestle with it.

MR. COOPER: Yes, Your Honor. And we do

not. We do not think it is properly viewed as a
gender-based classification. Virtually every appellate
court, State and Federal, with one exception, Hawaii, in
a superseded opinion, has agreed that it is not a
gender-based classification, but I guess it is
gender-based in the sense that marriage itself is a
gendered institution, a gendered term, and so in the
same way that fatherhood is gendered more motherhood is
gendered, it’s gendered in that sense.

But we — we agree that to the extent that

the classification impacts, as it clearly does, same-sex
couples, that — that classification can be viewed as
being one of sexual orientation rather than –

JUSTICE SOTOMAYOR: Outside of the -outside
of the marriage context, can you think of any
other rational basis, reason, for a State using sexual
orientation as a factor in denying homosexuals benefits
or imposing burdens on them? Is there any other
rational decision-making that the Government could make?
Denying them a job, not granting them benefits of some
sort, any other decision?

MR. COOPER: Your Honor, I cannot. I do not
have any — anything to offer you in that regard. I
think marriage is –

JUSTICE SOTOMAYOR: All right. If that -if
that is true, then why aren’t they a class? If
they’re a class that makes any other discrimination
improper, irrational, then why aren’t we treating them

 

as a class for this one thing? Are you saying that the
interest of marriage is so much more compelling than any
other interest as they could have?

MR. COOPER: No, Your Honor, we certainly
are not. We — we are saying the interest in marriage
and the — and the State ‘s interest and society’s
interest in what we have framed as responsible pro –

procreation is — is vital, but at bottom, with respect
to those interests, our submission is that same-sex
couples and opposite-sex couples are simply not
similarly situated.

But to come back to your precise question, I
think, Justice Sotomayor, you’re probing into whether or
not sexual orientation ought to be viewed as a
quasi-suspect or suspect class, and our position is that
it does not qualify under this Court’s standard and -and
traditional tests for identifying suspectedness.
The — the class itself is — is quite amorphous. It
defies consistent definition as — as the Plaintiffs’
own experts were — were quite vivid on. It — it does
not — it — it does not qualify as an accident of
birth, immutability in that — in that sense.

Again, the Plaintiffs –

JUSTICE SOTOMAYOR: So you — so what — I
don’t quite understand it. If you’re not dealing with
this as a class question, then why would you say that
the Government is not free to discriminate against them?

 

MR. COOPER: Well, Your Honor, I would think
that — that — I think it’s a — it’s a very different
question whether or not the Government can proceed
arbitrarily and irrationally with respect to any group
of people, regardless of whether or not they qualify

under this Court’s traditional test for suspectedness.
And — and the hypothetical I understood you to be
offering, I would submit would create — it would -unless
there’s something that — that is not occurring
to me immediately, an arbitrary and capricious
distinction among similarly situated individuals,
that — that is not what we think is at the — at the
root of the traditional definition of marriage.

JUSTICE KAGAN: Mr. Cooper, could I just
understand your argument. In reading the briefs, it
seems as though your principal argument is that same-sex
and opposite — opposite-sex couples are not similarly
situated because opposite-sex couples can procreate,

 

same-sex couples cannot, and the State’s principal
interest in marriage is in regulating procreation. Is
that basically correct?

MR. COOPER: I — Your Honor, that’s the
essential thrust of our — our position, yes.

JUSTICE KAGAN: Is — is there — so you
have sort of a reason for not including same-sex
couples. Is there any reason that you have for
excluding them? In other words, you’re saying, well, if
we allow same-sex couples to marry, it doesn’t serve the
State’s interest. But do you go further and say that it
harms any State interest?

MR. COOPER: Your Honor, we — we go further

in — in the sense that it is reasonable to be very
concerned that redefining marriage to — as a genderless
institution could well lead over time to harms to that
institution and to the interests that society has
always — has — has always used that institution to
address. But, Your Honor, I –

 

JUSTICE KAGAN: Well, could you explain that
a little bit to me, just because I did not pick this up
in your briefs.

What harm you see happening and when and how
and — what — what harm to the institution of marriage
or to opposite-sex couples, how does this cause and
effect work?

MR. COOPER: Once again, I — I would
reiterate that we don’t believe that’s the correct legal
question before the Court, and that the correct question
is whether or not redefining marriage to include
same-sex couples would advance the interests of marriage
as a –

JUSTICE KENNEDY: Well, then are — are you
conceding the point that there is no harm or denigration
to traditional opposite-sex marriage couples? So you’re
conceding that.

MR. COOPER: No, Your Honor, no. I’m not

conceding that.

JUSTICE KENNEDY: Well, but, then it — then
it seems to me that you should have to address Justice
Kagan’s question.

MR. COOPER: Thank you, Justice Kennedy.
have two points to make on them.
The first one is this: The Plaintiffs’
expert acknowledged that redefining marriage will have
real-world consequences, and that it is impossible for
anyone to foresee the future accurately enough to know
exactly what those real-world consequences would be.
And among those real-world consequences, Your Honor, we
would suggest are adverse consequences.

But consider the California voter, in 2008,
in the ballot booth, with the question before her
whether or not this age-old bedrock social institution
should be fundamentally redefined, and knowing that
there’s no way that she or anyone else could possibly
know what the long-term implications of — of profound
redefinition of a bedrock social institution would be.
That is reason enough, Your Honor, that would hardly be
irrational for that voter to say, I believe that this
experiment, which is now only fairly four years old,
even in Massachusetts, the oldest State that is
conducting it, to say, I think it better for California

to hit the pause button and await additional information
from the jurisdictions where this experiment is still
maturing.

JUSTICE SCALIA: Mr. Cooper, let me — let
me give you one — one concrete thing. I don’t know why
you don’t mention some concrete things. If you redefine
marriage to include same-sex couples, you must — you
must permit adoption by same-sex couples, and there’s -there’s
considerable disagreement among — among

sociologists as to what the consequences of raising a
child in a — in a single-sex family, whether that is
harmful to the child or not. Some States do not — do
not permit adoption by same-sex couples for that reason.

JUSTICE GINSBURG: California — no,
California does.

JUSTICE SCALIA: I don’t think we know the
answer to that. Do you know the answer to that, whether
it — whether it harms or helps the child?

MR. COOPER: No, Your Honor. And there’s -there’s

JUSTICE SCALIA: But that’s a possible
deleterious effect, isn’t it?

MR. COOPER: Your Honor, it — it is
certainly among the –

JUSTICE GINSBURG: It wouldn’t be in

California, Mr. Cooper, because that’s not an issue, is
it? In California, you can have same-sex couples
adopting a child.

MR. COOPER: That’s right, Your Honor. That
is true. And — but — but, Your Honor, here’s -here’s
the point –

JUSTICE SCALIA: I — it’s true, but
irrelevant. They’re arguing for a nationwide rule which
applies to States other than California, that every
State must allow marriage by same-sex couples. And so
even though States that believe it is harmful — and I
take no position on whether it’s harmful or not, but it
is certainly true that — that there’s no scientific
answer to that question at this

point in time.

MR. COOPER: And — and that, Your Honor, is
the point I am trying to make, and it is the
Respondents’ responsibility to prove, under rational
basis review, not only that — that there clearly will
be no harm, but that it’s beyond debate that there will
be no harm.

JUSTICE GINSBURG: Mr. Cooper, you are
defending — you are opposing a judgment that applies to
California only, not to all of the States.

MR. COOPER: That’s true, Your Honor. And
if there were a way to cabin the arguments that are

being presented to you to California, then the concerns
about redefining marriage in California could be
confined to California, but they cannot, Your Honor.

JUSTICE KENNEDY: I — I think there’s -there’s

substantial — that there’s substance to the
point that sociological information is new. We have
five years of information to weigh against 2,000 years
of history or more.

On the other hand, there is an immediate
legal injury or legal — what could be a legal injury,
and that’s the voice of these children. There are some
40,000 children in California, according to the Red
Brief, that live with same-sex parents, and they want
their parents to have full recognition and full status.
The voice of those children is important in this case,
don’t you think?

MR. COOPER: Your Honor, I certainly would
not dispute the importance of that consideration. That
consideration especially in the political process, where
this issue is being debated and will continue to be

debated, certainly, in California. It’s being debated
elsewhere. But on that — on that specific question,
Your Honor, there simply is no data.

In fact, their expert agreed there is no
data, no study, even, that would examine whether or not

there is any incremental beneficial effect from marriage
over and above the domestic partnership laws that were

enacted by the State of California to recognize,
support, and honor same-sex relationships and their
families. There is simply no data at all that would
permit one to draw — draw that conclusion.

I would recall, Justice Kennedy, the point
made in Romer, that under a rational basis of review,
the provision will be sustained even if it operates to
the disadvantage of a group, if it is — if it otherwise
advances rationally a legitimate State interest.

CHIEF JUSTICE ROBERTS: Mr. Cooper, we will
afford you more time. You shouldn’t worry about losing
your rebuttal time, but please continue on.

MR. COOPER: Oh –

JUSTICE BREYER: As long as you are on that,
then I would like to ask you this: Assume you could
distinguish California, suppose we accept your argument
or accept Justice Scalia’s version of your argument and
that distinguishes California. Now, let’s look at
California. What precisely is the way in which allowing
gay couples to marry would interfere with the vision of

marriage as procreation of children that allowing
sterile couples of different sexes to marry would not?

I mean, there are lots of people who get

married who can’t have children. To take a State that
does allow adoption and say — there, what is the

justification for saying no gay marriage? Certainly not
the one you said, is it?

MR. COOPER: You’re –

JUSTICE BREYER: Am I not clear?

Look, you said that the problem is marriage;
that it is an institution that furthers procreation.

MR. COOPER: Yes, Your Honor.

JUSTICE BREYER: And the reason there was
adoption, but that doesn’t apply to California. So
imagine I wall off California and I’m looking just
there, where you say that doesn’t apply. Now, what
happens to your argument about the institution of
marriage as a tool towards procreation? Given the fact
that, in California, too, couples that aren’t gay but
can’t have children get married all the time.

MR. COOPER: Yes, Your Honor. The concern
is that redefining marriage as a genderless institution

will sever its abiding connection to its historic
traditional procreative purposes, and it will refocus,
refocus the purpose of marriage and the definition of
marriage away from the raising of children and to the
emotional needs and desires of adults, of adult couples.

Suppose, in turn –

JUSTICE KAGAN: Well, suppose a State said,
Mr. Cooper, suppose a State said that, Because we think
that the focus of marriage really should be on
procreation, we are not going to give marriage licenses
anymore to any couple where both people are over the age
of 55. Would that be constitutional?

MR. COOPER: No, Your Honor, it would not be
constitutional.

JUSTICE KAGAN: Because that’s the same
State interest, I would think, you know. If you are
over the age of 55, you don’t help us serve the
Government’s interest in regulating procreation through
marriage. So why is that different?

MR. COOPER: Your Honor, even with respect

to couples over the age of 55, it is very rare that both
couples — both parties to the couple are infertile, and
the traditional –

(Laughter.)

JUSTICE KAGAN: No, really, because if the
couple — I can just assure you, if both the woman and
the man are over the age of 55, there are not a lot of
children coming out of that marriage.

(Laughter.)

MR. COOPER: Your Honor, society’s -society’s
interest in responsible procreation isn’t just

with respect to the procreative capacities of the couple
itself. The marital norm, which imposes the obligations
of fidelity and monogamy, Your Honor, advances the
interests in responsible procreation by making it more

likely that neither party, including the fertile party
to that –

JUSTICE KAGAN: Actually, I’m not even –

JUSTICE SCALIA: I suppose we could have a
questionnaire at the marriage desk when people come in
to get the marriage — you know, Are you fertile or are
you not fertile?

(Laughter.)

JUSTICE SCALIA: I suspect this Court would
hold that to be an unconstitutional invasion of privacy,
don’t you think?

JUSTICE KAGAN: Well, I just asked about
age. I didn’t ask about anything else. That’s not -we
ask about people’s age all the time.

MR. COOPER: Your Honor, and even asking
about age, you would have to ask if both parties are
infertile. Again –

JUSTICE SCALIA: Strom Thurmond was — was
not the chairman of the Senate committee when Justice
Kagan was confirmed.

(Laughter.)

MR. COOPER: Very few men — very few men
outlive their own fertility. So I just –

JUSTICE KAGAN: A couple where both people
are over the age of 55 –

MR. COOPER: I –

JUSTICE KAGAN: A couple where both people
are over the age of 55.

MR. COOPER: And Your Honor, again, the

marital norm which imposes upon that couple the
obligation of fidelity –

JUSTICE SOTOMAYOR: I’m sorry, where is
this –

CHIEF JUSTICE ROBERTS: I’m sorry, maybe you
can finish your answer to Justice Kagan.

JUSTICE SOTOMAYOR: I’m sorry.

MR. COOPER: It’s designed, Your Honor, to
make it less likely that either party to that — to that
marriage will engage in irresponsible procreative
conduct outside of that marriage. Outside of that
marriage. That’s the marital — that’s the marital
norm. Society has an interest in seeing a 55-year-old
couple that is — just as it has an interest of seeing
any heterosexual couple that intends to engage in a
prolonged period of cohabitation to reserve that until
they have made a marital commitment, a marital

commitment. So that, should that union produce any
offspring, it would be more likely that that child or
children will be raised by the mother and father who
brought them into the world.

JUSTICE GINSBURG: Mr. Cooper, we said that
somebody who is locked up in prison and who is not going

to get out has a right to marry, has a fundamental right
to marry, no possibility of procreation.

MR. COOPER: Your Honor is referring, I’m
sure, to the Turner case, and –

JUSTICE GINSBURG: Yes.

MR. COOPER: — I think that, with due
respect, Justice Ginsburg, way over-reads — way
over-reads Turner against Safley. That was a ca

se in

which the prison at issue — and it was decided in the
specific context of a particular prison where there were
both female and male inmates, many of them minimum
security inmates. It was dealing with a regulation,
Your Honor, that had previously permitted marriage in
the case of pregnancy and childbirth.

The Court — the Court here emphasized that,
among the incidents of marriage that are not destroyed
by that — at least that prison context, was the
expectation of eventual consummation of the marriage and
legitimation of — of the children. So that –

CHIEF JUSTICE ROBERTS: Thank you,
Mr. Cooper.

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

CHIEF JUSTICE ROBERTS: Mr. Olson?

ORAL ARGUMENT OF THEODORE B. OLSON
ON BEHALF OF THE RESPONDENTS
MR. OLSON: Thank you, Mr. Chief Justice,
and may it please the Court:

I know that you will want me to spend a
moment or two addressing the standing question, but
before I do that, I thought that it would be important
for this Court to have Proposition 8 put in context,
what it does. It walls-off gays and lesbians from
marriage, the most important relation in life, according
to this Court, thus stigmatizing a class of Californians
based upon their status and labeling their most
cherished relationships as second-rate, different,
unequal, and not okay.

CHIEF JUSTICE ROBERTS: Mr. Olson, I cut off
your friend before he could get into the merits.

MR. OLSON: I was trying to avoid that, Your

Honor.

CHIEF JUSTICE ROBERTS: I know –

(Laughter.)

CHIEF JUSTICE ROBERTS: Well, I think it’s

only fair to treat you the same. Perhaps you could
address your jurisdictional argument?

MR. OLSON: Yes. I think that our
jurisdictional argument is, as we set forth in the
brief, California cannot create Article III standing by
designating whoever it wants to defend the State of
California in connection with the ballot.

JUSTICE KENNEDY: But this is not whoever it
wants. These are five proponents of — of the measure,
and if we were to accept your argument, it would give
the State a one-way ratchet. The State could go in and
make a defense, maybe a half-hearted defense of the
statute, and — and then when the statute is held
invalid, simply — simply leave. On the other hand,
if — if the State loses, the State can appeal.

So this is a one-way ratchet as it favors
the State, and allows governors and other constitutional
officers in different States to thwart the initiative
process.

MR. OLSON: That’s the — that’s the way the
California Supreme Court saw it with respect to

California law. The governor and the Attorney General
of California are elected to act in the best interests
of the State of California. They made a professional
judgment given their obli

gations as officers of the

State of California.

The California Supreme Court has said that
proponents — and by the way, only four of the five are
here. Dr. Tam withdrew from the case because of some -many
things he said during the election campaign.

JUSTICE ALITO: Well, Mr. Olson, is it your
position that the only people who could defend a ballot,
a law that’s adopted in California through the ballot
initiative are the Attorney General and the governor, so
that if the Attorney General and the governor don’t like
the ballot initiative, it will go undefended? Is that
your position?

MR. OLSON: I don’t — I don’t think it’s
quite that limited. I think one of your colleagues
suggested that there could be an officer appointed.
There could be an appointee of the State of California

who had responsibility, fiduciary responsibility to the
State of California and the citizens of California, to
represent the State of California along –

JUSTICE SCALIA: Who — who would appoint
him? The same governor that didn’t want to defend the
plebiscite?

MR. OLSON: Well, that happens all the time.
As you recall in the case of — well, let’s not spend
too much time on independent counsel provisions, but –

(Laughter.)

MR. OLSON: The governor — the government

of the State of California frequently appoints an
attorney where there’s a perceived conflict of
interest –

JUSTICE SCALIA: I suppose –

MR. OLSON: — and that person would have a
responsibility for the State and might have
responsibility for the attorneys’ fees.

CHIEF JUSTICE ROBERTS: I suppose there
might be people out there with their own personal
standing, someone who performs marriages and would like

that to remain open to everyone but would prefer not to
perform same-sex marriages, or other people. We seem to
be addressing the case as if the only options are the
proponents here or the State. I’m not sure there aren’t
other people out there with individual personalized
injury that would satisfy Article III.

MR. OLSON: There might well be in — in a
different case. I don’t know about this case. If there
was, for example, this was an initiative measure that
allocated certain resources of the State of California
and the people — maybe it was a binary system of people
got resources and other people didn’t get resources,
there could be standing. Someone would show actual

injury.

The point, I guess, at the bottom of this is
the Supreme Court, this Court, decided in Raines v. Byrd
that Congress couldn’t specify members of Congress in
that context even where the measure depleted or
diminished powers of Congress –

JUSTICE SOTOMAYOR: Mr. Olson, I think the
bottom line –

JUSTICE ALITO: The States are not bound by
the same separation of powers doctrine that underlies
the Federal Constitution. You couldn’t have a Federal
initiative, for example. They’re free of all that.

So start from the proposition that a State
has standing to defend the constitutionality of a State
law un- — beyond dispute. The question then is, who
represents the State?

Now, in a State that has initiative, the
whole process would be defeated if the only people who
could defend the statute are the elected public
officials. The whole point — you know this better than
I do, because you’re from California — the whole point
of the initiative process was to allow the people to
circumvent public officials about whom they were
suspicious.

So if you reject that proposition, what is

left is the proposition that the State — State law can
choose some other person, some other group to defend the
constitutionality of a State law. And the California
Supreme Court has told us that the Plaintiffs in this

case are precisely those people.

So how do you get around that?

MR. OLSON: The only — that’s exactly

what

the California Supreme Court thought. The California
Supreme Court thought that it could decide that the
proponents, whoever they were, and this could be
25 years after the election; it could be one of the
proponents, it could be four of the proponents; they
could have an interest other than the State because they
have no fiduciary responsibility to the State; they may
be incurring attorneys’ fees on behalf of the State or
on behalf of themselves, but they haven’t been
appointed; they have no official responsibility to the
State.

And my only argument, and I know it’s a
close one, because California thinks that this is the
system. The California Supreme Court thought that this
was a system that would be a default system. I’m
suggesting from your decisions with respect to Article

III that that takes more than that under –

JUSTICE SOTOMAYOR: Mr. Olson, I think that

you’re not answering the fundamental fear. And so -and
— and the amici brief that sets forth this test of
fiduciary duty doesn’t quite either.

The assumption is that there are not
executive officials who want to defend the law. They
don’t like it. No one’s going to do that. So how do
you get the law defended in that situation?

MR. OLSON: I don’t have an answer to that
question unless there’s an appointment process either
built into the system where it’s an officer of
California or –

JUSTICE SOTOMAY

OR: So why — why isn’t this

viewed as an appointment process, that the in — the
ballot initiators have now become that body?

MR. OLSON: And that’s the argument –

JUSTICE SOTOMAYOR: Is that your argument –

MR. OLSON: That’s our — that’s the
argument our opponents make. But it — but it must be
said that it happens all of the time, that Federal
officials and State officials decide not to enforce a
statute, to enforce a statute in certain ways. We don’t
then come in and decide that there’s someone else ought
to be in court for every particular –

JUSTICE BREYER: What the brief says is, of
course, you can appoint people. It’s not just that you

appoint them, it’s that the State’s interest, when it
defends a law, is the interest in executing the law of
the State. So all you have to do is give a person that
interest. But when a person has the interest of
defending this law, as opposed to defending the law of
the State of California, there can be all kinds of
conflicts, all kinds of situations.

That’s what I got out of the brief. So give

the person that interest. And that, they say, is what’s
missing here. And you’ll say — I mean, that’s -that’s
here, and you say it’s missing here.

MR. OLSON: Yeah, I don’t –

JUSTICE BREYER: Why is it missing here?

MR. OLSON: It is — what is missing here,
because you’re not an officer of the State of
California, you don’t have a fiduciary duty to the State
of California, you’re not bound by the ethical standards
of an officer of the State of California to represent
the State of California, you could have conflicts of
interest. And as I said, you’d be — could be incurring
enormous legal fees on behalf of the State when the
State hasn’t decided to go that route. I think –

CHIEF JUSTICE ROBERTS: You should feel free
to move on to the merits.

MR. OLSON: Thank you, Your Honor. As I

pointed out at the — at the outset, this is a measure
that walls off the institution of marriage, which is not
society’s right. It’s an individual right that this

Court again and again and again has said the right to
get married, the right to have the relationship of
marriage is a personal right. It’s a part of the right
of privacy, association, liberty, and the pursuit of
happiness.

In the cases in which you’ve described the
right to get married under the Constitution, you’ve
described it as marriage, procreation, family, other
things like that. So the procreation aspect, the
responsibility or ability or interest in procreation is
not a part of the right to get married. Now, that –

CHIEF JUSTICE ROBERTS: I’m not sure,
counsel, that it makes — I’m not sure that it’s right
to view this as excluding a particular group. When the
institution of marriage develop

ed historically, people

didn’t get around and say let’s have this institution,
but let’s keep out homosexuals. The institution
developed to serve purposes that, by their nature,
didn’t include homosexual couples.

It is — yes, you can say that it serves

some of the other interests where it makes sense to
include them, but not all the interests. And it seems

to me, your friend argues on the other side, if you have
an institution that pursues additional interests, you
don’t have to include everybody just because some other
aspects of it can be applied to them.

MR. OLSON: Well, there’s a couple of
answers to that, it seems to me, Mr. Chief Justice. In
this case, that decision to exclude gays and lesbians
was made by the State of California.

CHIEF JUSTICE ROBERTS: Oh, that’s only
because Proposition 8 came 140 days after the California
Supreme Court issued its decision.

MR. OLSON: That’s right.

CHIEF JUSTICE ROBERTS: And don’t you think
it’s more reasonable to view it as a change by the
California Supreme Court of this institution that’s been
around since time immemorial?

MR. OLSON: The California Supreme Court,
like this Supreme Court, decides what the law is. The
California Supreme Court decided that the Equal
Protection and Due Process Clauses of that California

Constitution did not permit excluding gays and lesbians
from the right to get married –

JUSTICE SCALIA: You — you’ve led me right

into a question I was going to ask. The California
Supreme Court decides what the law is. That’s what we

decide, right? We don’t prescribe law for the future.
We — we decide what the law is. I’m curious, when -when
did — when did it become unconstitutional to
exclude homosexual couples from marriage? 1791? 1868,
when the Fourteenth Amendment was adopted?

Sometimes — some time after Baker, where we
said it didn’t even raise a substantial Federal
question? When — when — when did the law become this?

MR. OLSON: When — may I answer this in the
form of a rhetorical question? When did it become
unconstitutional to prohibit interracial marriages?
When did it become unconstitutional to assign children
to separate schools.

JUSTICE SCALIA: It’s an easy question, I
think, for that one. At — at the time that the Equal

Protection Clause was adopted. That’s absolutely true.

But don’t give me a question to my question.

(Laughter.)

JUSTICE SCALIA: When do you think it became
unconstitutional? Has it always been unconstitutional?

MR. OLSON: When the — when the California
Supreme Court faced the decision, which it had never
faced before, is — does excluding gay and lesbian
citizens, who are a class based upon their status as
homosexuals — is it — is it constitutional –

JUSTICE SCALIA: That — that’s not when it
became unconstitutional. That’s when they acte

d in an
unconstitutional matter — in an unconstitutional
matter. When did it become unconstitutional to prohibit
gays from marrying?

MR. OLSON: That — they did not assign a
date to it, Justice Scalia, as you know. What the court
decided was the case that came before it –

JUSTICE SCALIA: I’m not talking about the

California Supreme Court. I’m talking about your
argument. You say it is now unconstitutional.

MR. OLSON: Yes.

JUSTICE SCALIA: Was it always
unconstitutional?

MR. OLSON: It was constitutional when we -as
a culture determined that sexual orientation is a
characteristic of individuals that they cannot control,
and that that –

JUSTICE SCALIA: I see. When did that
happen? When did that happen?

MR. OLSON: There’s no specific date in
time. This is an evolutionary cycle.

JUSTICE SCALIA: Well, how am I supposed to
know how to decide a case, then –

MR. OLSON: Because the case that’s before

you –

JUSTICE SCALIA: — if you can’t give me a
date when the Constitution changes?

MR. OLSON: — in — the case that’s before
you today, California decided — the citizens ofCalifornia decided, after the California Supreme Court decided that individuals had a right to get married
irrespective of their sexual orientation in California,
and then the Californians decided in Proposition 8, wait
a minute, we don’t want those people to be able to get
married.

CHIEF JUSTICE ROBERTS: So — so your
case — your case would be different if Proposition 8
was enacted into law prior to the California Supreme
Court decision?

MR. OLSON: I would make — I would make
the — also would make the — that distinguishes it in
one respect. But also — also — I would also make the
argument, Mr. Chief Justice, that we are — this -marriage
is a fundamental right and we are making a
classification based upon a status of individuals, which
this Court has repeatedly decided that gays and lesbians
are defined by their status. There is no question about
that.

JUSTICE SCALIA: So it would be

unconstitutional even in States that did not allow
civil unions?

MR. OLSON: We do, we submit that. You

could write a narrower decision.

JUSTICE SCALIA: Okay. So I want to know
how long it has been unconstitutional in those –

MR. OLSON: I don’t — when — it seems to
me, Justice Scalia, that –

JUSTICE SCALIA: It seems to me you ought to
be able to tell me when. Otherwise, I don’t know how to
decide the case.

MR. OLSON: I — I submit you’ve never
required that before. When you decided that — that
individuals — after having decided that separate but
equal schools were permissible, a decision by this
Court, when you decided that that was unconstitutional,
when did that become unconstitutional?

JUSTICE SCALIA: 50 years ago, it was okay?

MR. OLSON: I — I can’t answer that
question, and I don’t think this Court has ever phrased
the question in that way.

JUSTICE SCALIA: I can’t either. That’s the
problem. That’s exactly the problem.

MR. OLSON: But what I have before you now,
the case that’s before you today, is whether or not

California can take a class of individuals based upon
their characteristics, their distinguishing
characteristics, remove from them the right of privacy,
liberty, association, spirituality, and identity that -that
marriage gives them.

It — it is — it is not an answer to say
procreation or anything of that nature, because
procreation is not a part of the right to get married.

JUSTICE KENNEDY: That’s really — that’s a

broad argument that you — that’s in this case if the
Court wants to reach it. The rationale of the Ninth
Circuit was much more narrow. It basically said that
California, which has been more generous, more open to
protecting same-sex couples than almost any State in the
Union, just didn’t go far enough, and it’s being
penalized for not going far enough.

That’s a very odd rationale on which to
sustain this opinion.

MR. OLSON: This Court has always looked
into the context. In, for example, the New Orleans case
involving the gambling casinos and advertising, you look
at the context of what was permitted, what was not
permitted, and does that rationalization for prohibiting
in that case the advertising, in this case prohibiting
the relationship of marriage, does it make any sense in

the context of what exists?

JUSTICE ALITO: Seriously, Mr. Olson,

if California provides all the substantive benefits of
marriage to same-sex domestic partnerships, are you
seriously arguing that if California — if the State -if
the case before us now were from a State that doesn’t
provide any of those benefits to same-sex couples, this
case would come out differently?

MR. OLSON: No, I don’t think it would come
out differently, because of the fundamental arguments
we’re making with respect to class-based distinctions
with respect to a fundamental right. However, to the
extent that my opponent, in the context of California,
talks about child-rearing or adoptions or — or of
rights of people to live together and that sort of
thing, those arguments can’t be made on behalf of
California, because California’s already made a decision
that gay and lesbian individuals are perfectly suitable
as parents, they’re perfectly suitable to adopt, they’re
raising 37,000 children in California, and the expert on
the other side specifically said and testified that they
would be better off when their parents were allowed to
get married.

JUSTICE ALITO: I don’t think you can have
it both ways. Either this case is the same, this would

be the same if this were Utah or Oklahoma, or it’s
different because it’s California and California has
provided all these –

MR. OLSON: I — I think that it’s not that
we’re arguing that those are inconsistent. If the
fundamental thing is that denying gays and lesbians the
right of marriage, which is fundamental under your
decisions, that is unconstitutional, if it is — if the
State comes forth with certain arguments — Utah might
come forth with certain justifications. California
might come forth with others. But the fact is that
California can’t make the arguments about adoption or
child-rearing or people living together, because they
have already made policy decisions. So that doesn’t
make them inconsistent.

CHIEF JUSTICE ROBERTS: So it’s just
about — it’s just about the label in this case.

MR. OLSON: The label is –

CHIEF JUSTICE ROBERTS: Same-sex couples
have every other right, it’s just about the label.

MR. OLSON: The label “marriage” means
something. Even our opponents –

CHIEF JUSTICE ROBERTS: Sure. If you
tell — if you tell a child that somebody has to be
their friend, I suppose you can force the child to say,

this is my friend, but it changes the definition of what
it means to be a friend.

And that’s it seems to me what the — what
supporters of Proposition 8 are saying here. You’re -all
you’re interested in is the label and you insist on
changing the definition of the label.

MR. OLSON: It is like you were to say you
can vote, you can travel, but you may not be a citizen.
There are certain labels in this country that are very,
very critical. You could have said in the Loving case,
what — you can’t get married, but you can have an
interracial union. Everyone would know that that was
wrong, that the — marriage has a status, recognition,
support, and you — if you read the test, you know –

CHIEF JUSTICE ROBERTS: How do we know -how
do we know that that’s the reason, or a necessary
part of the reason, that we’ve recognized marriage as a
fundamental right? That’s — you’ve emphasized that and
you’ve said, well, it’s because of the emotional
commitment. Maybe it is the procreative aspect that
makes it a fundamental right.

MR. OLSON: But you have said that marriage
is a fundamental right with respect to procreation and
at the same level getting married, privacy — you said
that in the Zablocki case, you said that in the Lawrence

case, and you said it in other cases, the Skinner case,
for example.

Marriage is put on a pro- — equal footing
with procreational aspects. And your — this Court is
the one that has said over and over again that marriage
means something to the individual: The privacy,
intimacy, and that it is a matter of status and
recognition in this –

JUSTICE SOTOMAYOR: Mr. Olson, the bottom
line that you’re being asked — and — and it is one
that I’m interested in the answer: If you say that
marriage is a fundamental right, what State restrictions
could ever exist? Meaning, what State restrictions with
respect to the number of people, with respect to — that
could get married — the incest laws, the mother and
child, assuming that they are the age — I can — I can
accept that the State has probably an overbearing
interest on — on protecting a child until they’re of
age to marry, but what’s left?

MR. OLSON: Well, you’ve said — you’ve said
in the cases decided by this Court that the polygamy
issue, multiple marriages raises questions about
exploitation, abuse, patriarchy, issues with respect to
taxes, inheritance, child custody, it is an entirely
different thing. And if you — if a State prohibits

polygamy, it’s prohibiting conduct.

If it prohibits gay and lesbian citizens
from getting married, it is prohibiting their exercise
of a right based upon their status. It’s selecting them
as a class, as you described in the Romer case and as
you described in the Lawrence case and in other cases,
you’re picking out a group of individuals to deny them
the freedom that you’ve said is fundamental, important
and vital in this society, and it has status and
stature, as you pointed out in the VMI case. There’s
a — there’s a different –

JUSTICE SOTOMAYOR: Is there any way to
decide this case in a principled manner that is limited
to California only?

MR. OLSON: Yes, the Ninth Circuit did that.
You can decide the standing case that limits it to the
decision of the district court here. You could decide
it as the Ninth Circuit did –

JUSTICE KENNEDY: The problem — the problem

with the case is that you’re really asking, particularly
because of the sociological evidence you cite, for us to
go into uncharted waters, and you can play with that
metaphor, there’s a wonderful destination, it is a
cliff. Whatever that was.

(Laughter.)

JUSTICE KENNEDY: But you’re — you’re doing
so in a — in a case where the opinion is very narrow.
Basically that once the State goes halfway, it has to go
all the way or 70 percent of the way, and you’re doing
so in a case where there’s a substantial question on -on
standing. I just wonder if — if the case was
properly granted.

MR. OLSON: Oh, the case was certainly
properly granted, Your Honor. I mean, there was a full
trial of all of these issues. There was a 12-day trial,
the judge insisted on evidence on all of these
questions. This — this is a –

JUSTICE KENNEDY: But that’s not the issue
the Ninth Circuit decided.

MR. OLSON: The issue — yes, the Ninth

Circuit looked at it and decided because of your
decision on the Romer case, this Court’s decision on the
Romer case, that it could be decided on the narrower
issue, but it certainly was an appropriate case to
grant. And those issues that I’ve been describing are
certainly fundamental to the case. And — and I don’t
want to abuse the Court’s indulgence, that what I — you
suggested that this is uncharted waters. It was
uncharted waters when this Court, in 1967, in the Loving
decision said that interracial — prohibitions

on interracial marriages, which still existed in 16
States, were unconstitutional.

JUSTICE KENNEDY: It was hundreds of years

old in the common law countries. This was new to the
United States.

MR. OLSON: And — and what we have here –

JUSTICE KENNEDY: So — so that’s not
accurate.

MR. OLSON: I — I respectfully submit that
we’ve under — we’ve learned to understand more about
sexual orientation and what it means to individuals.
guess the — the language that Justice Ginsburg used at
the closing of the VMI case is an important thing, it
resonates with me, “A prime part of the history of our
Constitution is the story of the extension of
constitutional rights to people once ignored or
excluded.”

CHIEF JUSTICE ROBERTS: Thank you, counsel.
General Verrilli?
ORAL ARGUMENT OF DONALD B. VERRILLI, JR.,
FOR UNITED STATES, AS AMICUS CURIAE,
SUPPORTING THE RESPONDENTS
GENERAL VERRILLI: Mr. Chief Justice, and
may it please the Court:
Proposition 8 denies gay and lesbian persons

the equal protection of the laws –

CHIEF JUSTICE ROBERTS: You don’t think
you’re going to get away with not starting with the
jurisdictional question, do you?

(Laughter.)

GENERAL VERRILLI: As an amicus, I thought I
might actually, Your Honor. And — and, of course, we
didn’t take a position on standing. We didn’t — we
didn’t brief it, we don’t have a formal position on
standing. But I will offer this observation based on
the discussion today and the briefing.

We do think that while it’s certainly not
free of doubt, that the better argument is that there is
not Article III standing here because — I don’t want to
go beyond just summarizing our position, but — because
we don’t have a formal position.

But we do think that with respect to
standing, that at this point with the initiative process
over, that Petitioners really have what is more in the
nature of a generalized grievance and because they’re
not an agent of the State of California or don’t have
any other official tie to the State that would — would
result in any official control of their litigation, that
the better conclusion is that there’s not Article I

II

standing here.

JUSTICE ALITO: Well, tomorrow you’re going
to be making a standing argument that some parties think
is rather tenuous, but today, you’re — you’re very
strong for Article III standing?

GENERAL VERRILLI: Well, we said this was
a — we said this was a close question, and — and our
interests are, Justice Alito, in tomorrow’s issues where
we have briefed the matter thoroughly and will be
prepared to discuss it with the Court tomorrow.

With respect to the merits, two fundamental
points lead to the conclusion that there’s an equal
protection violation here. First, every warning flag
that warrants exacting scrutiny is present in this case.
And Petitioners’ defense of Proposition 8 requires the
Court to ignore those warning flags and instead apply
highly deferential Lee Optical rational basis review as

though Proposition 8 were on a par with the law of
treating opticians less favorably than optometrists,
when it really is the polar opposite of such a law.

JUSTICE GINSBURG: General Verrilli, I could
understand your argument if you were talking about the
entire United States, but you — your brief says it’s
only eight or nine States, the States that permit civil
unions, and that’s — brings up a question that was
asked before. So a State that has made considerable

progress has to go all the way, but at least the
Government’s position is, if it has done — the State
has done absolutely nothing at all, then it’s — it can
do — do as it will.

GENERAL VERRILLI: That gets to my second

point, Your Honor, which is that I do think the problem
here with the arguments that Petitioners are advancing
is that California’s own laws do cut the legs out from
under all of the justifications that Petitioners have
offered in defense of Proposition 8, and I understand
Your Honor’s point and the point that Justice Kennedy
raised earlier, but I do think this Court’s equal
protection jurisprudence requires the Court to evaluate
the interests that the State puts forward, not in a
vacuum, but in the context of the actual substance of
California law.

And here, with respect to California law,
gay and lesbian couples do have the legal rights and
benefits of marriage, full equality and adoption, full
access to assistive reproduction, and therefore, the
argument about the State’s interests that — that
Petitioners advance have to be tested against that
reality, and — and they just don’t measure up. None of
the –

JUSTICE BREYER: Well, the argument –

JUSTICE ALITO: None of the –

CHIEF JUSTICE ROBERTS: Justice Breyer.

JUSTICE BREYER: What is the one — look, a
State that does nothing for gay couples hurts them much
more than a State that does something. And, of course,
it’s true that it does hurt their argument that they do
quite a lot, but which are their good arguments, in your
opinion? I mean, take a State that really does nothing
whatsoever.

They have no benefits, no nothing, no
nothing. Okay? And moreover, if — if you’re right,
even in California, if they have — if they’re right or,
you know, if a pact is enough, they won’t get Federal
benefits, those that are tied to marriage, because
they’re not married. So — so a State that does nothing
hurts them much more, and yet your brief seems to say
it’s more likely to be justified under the Constitution.

I’d like to know with some specificity how
that could be.

GENERAL VERRILLI: Well, because you have to
measure the — under the standard of equal protection
scrutiny that we think this Court’s cases require.

JUSTICE BREYER: I know the principle, but
I’m saying which are their good arguments, in your
opinion, that would be good enough to overcome for the

State that does nothing, but not good enough to overcome
California where they do a lot?

GENERAL VERRILLI: Well, we — what we’re -what
we’re saying about that is that we’re not prepared
to close the door to an argument in another State where
the State’s interests haven’t cut the legs out from
under the arguments. And I think — I suppose the
caution rationale that Mr. Cooper identified with
respect to the effects on children, if it came up in a
different case with a different record, after all here,
this case was litigated by Petitioners on the theory
that rational basis applied and they didn’t need to show
anything, and so they didn’t try to show anything.

Our view is that heightened scrutiny should

apply, and so I don’t want to — I don’t want to kid
about this, we understand, that would be a very heavy
burden for a State to meet. All we’re suggesting is
that in a situation in which the — the State interests
aren’t cut out from under it, as they — as they are
here, that that issue ought to remain open for a future
case. And I — and I think the caution rationale would
be the one place where we might leave it open. Because
you can’t leave it open in this case.

JUSTICE SOTOMAYOR: General, there is an
irony in that, which is the States that do more have

less rights.

GENERAL VERRILLI: Well — well, I
understand that, Your Honor, but I do think that you
have to think about the claim of right on the other side
of the equation here. And in this situation,
California — the argument here that — that gay and
lesbian couples can be denied access to marriage on the
ground of an interest in responsible procreation and
child rearing just can’t stand up given that the parents
have full equality, the gay and lesbian parents have
full equality apart from –

JUSTICE ALITO: You want us to assess the
effects of same-sex marriage, the potential effects
on — of same-sex marriage, the potential — the effects
of Proposition 8. But what is your response to the
argument which has already been mentioned about the need
to be cautious in light of the newness of the — the

concept of — of same-sex marriage.

The one thing that the parties in this case
seem to agree on is that marriage is very important.
It’s thought to be a fundamental building block of
society and its preservation essential for the
preservation of society. Traditional marriage has been
around for thousands of years. Same-sex marriage is
very new. I think it was first adopted in The

Netherlands in 2000. So there isn’t a lot of data about
its effect. And it may turn out to be a — a good
thing; it may turn out not to be a good thing, as the
supporters of Proposition 8 apparently believe.

But you want us to step in and render a
decision based on an assessment of the effects of this
institution which is newer than cell phones or the
Internet? I mean we — we are not — we do not have the
ability to see the future.

On a question like that, of such fundamental
importance, why should it not be left for the people,
either acting through initiatives and referendums or
through their elected public officials?

GENERAL VERRILLI: I have four points I
would like to make to that in response to that,
Justice Alito, and I think they are all important.

First, California did not through
Proposition 8 do what my friend Mr. Cooper said and push
a pause button. They pushed a delete button. This is a
permanent ban. It’s in the Constitution. It’s supposed
to take this issue out from the legislative process. So
that’s the first point.

Second –

JUSTICE ALITO: Well, just in response to

that, of course the Constitution could be amended,

and — and I think I read that the California

Constitution has been amended 500 times.

GENERAL VERRILLI: But the –

JUSTICE ALITO: So it’s not exactly like the

U.S. Constitution.

GENERAL VERRILLI: But it does — of course
not. But it is — but the aim of this is to take it out
of the normal legislative process.

The second point is that, with respect to
concerns that Your Honor has raised, California has been
anything but cautious. It has given equal parenting
rights, equal adoption rights. Those rights are on the
books in California now, and so the interest of
California is — that Petitioners are articulating with

respect to Proposition 8, has to be measured in that
light.

JUSTICE SCALIA: Yeah, but the rest of the
country has been cautious.

GENERAL VERRILLI: And — and that’s why –

JUSTICE SCALIA: And we’re — and you are
asking us to impose this on the whole country, not just
California.

GENERAL VERRILLI: No, respectfully
Justice Scalia, we are not. Our position is narrower
than that. Our position — the position we have taken,

is about States, it applies to States that have, like
California and perhaps other States, that have granted
these rights short of marriage, but –

CHIEF JUSTICE ROBERTS: I don’t want to — I
want you to get back to Justice Alito’s other points,
but is it the position of the United States that
same-sex marriage is not required throughout the
country?

GENERAL VERRILLI: We are not — we are not

taking the position that it is required throughout the
country. We think that that ought to be left open for a
future adjudication in other States that don’t have the
situation California has.

JUSTICE SCALIA: So your — your position is
only if a State allows civil unions does it become
unconstitutional to forbid same-sex marriage, right?

GENERAL VERRILLI: I — I see my red light
is on.

CHIEF JUSTICE ROBERTS: Well, you can go on.

GENERAL VERRILLI: Thank you.

Our position is — I would just take out a
red pen and take the word “only” out of that sentence.
When that is true, then the Equal Protection Clause
forbids the exclusion of same-sex marriage, and it’s an
open question otherwise.

And if I could just get to the third reason,
which I do think is quite significant.

The argument here about caution is an
argument that, well, we need to wait. We understand
that. We take it seriously. But waiting is not a
neutral act. Waiting imposes real costs in the here and
now. It denies to the — to the parents who want to
marry the ability to marry, and it denies to the
children, ironically, the very thing that Petitioners
focus on is at the heart of the marriage relationship.

CHIEF JUSTICE ROBERTS: But you are willing
to wait in the rest of the country. You saying it’s got
to happen right now in California, but you don’t even
have a position about whether it’s required in the rest
of the country.

GENERAL VERRILLI: If — with respect to a
State that allows gay couples to hav

e children and to

have families and then denies the stabilizing effect –

CHIEF JUSTICE ROBERTS: So it’s got to
happen right away in those States where same-sex couples
have every legal right that married couples do.

GENERAL VERRILLI: Well, we think –

CHIEF JUSTICE ROBERTS: But you can wait in
States where they have fewer legal rights.

GENERAL VERRILLI: What i said is it’s an

open question with respect to those States and the Court
should wait and see what kind of a record a State could
make. But in California you can’t make the record to
justify the exclusion.

And the fourth point I would make on this,
recognizing that these situations are not –

JUSTICE SOTOMAYOR: How would the record be
different elsewhere?

GENERAL VERRILLI: Well, they might try to
make a different record about the effects on children.
But there isn’t a record to that effect here.

And the fourth point I would make, and I do
think this is significant, is that the principal
argument in 1967 with respect to Loving and that the
Commonwealth of Virginia advanced was: Well, the social
science is still uncertain about how biracial children
will fare in this world, and so you ought to apply
rational basis scrutiny and wait. And I think the Court
recognized that there is a cost to waiting and that that
has got to be part of the equal protection calculus.
And so — so I do think that’s quite fundamental.

CHIEF JUSTICE ROBERTS: Can I ask you a

problem about –

GENERAL VERRILLI: Sure.

CHIEF JUSTICE ROBERTS: — I — it seems to

me that your position that you are supporting is
somewhat internally inconsistent. We see the argument
made that there is no problem with extending marriage to
same-sex couples because children raised by same-sex
couples are doing just fine and there is no evidence
that they are being harmed. And the other argument is
Proposition 8 harms children by not allowing same-sex
couples to marriage. Which is it?

GENERAL VERRILLI: Well, I — I think what
Proposition 8 does is deny the long-term stabilizing
effect that marriage brings. That’s — that’s the
argument for — for marriage, that –

CHIEF JUSTICE ROBERTS: But you also tell me
there has been no harm shown to children of same-sex
couples.

GENERAL VERRILLI: California — there are
37,000 children in same-sex families in California now.
Their parents cannot marry and that has effects on them
in the here and now. A stabilizing effect is not there.
When they go to school, they have to, you know — they
don’t have parents like everybody else’s parents.
That’s a real effect, a real cost in the here and now.

JUSTICE BREYER: Well, the real cost right
now would be you’re asking me to write these words: “A
State that has a pact has to say ‘marriage,'” but I’m

not telling you about States that don’t. Well, I would

guess there is a real-world effect there, too. That
States that are considering pacts will all say “we won’t
do it,” or not all, but some would. And that would have
a real effect right now. And at the moment, I’m
thinking it’s much more harmful to the gay couple, the
latter than the former. But you won’t give me advice as
the Government as to how to deal with that.

GENERAL VERRILLI: Well, we — we think
that, as I started my argument, Your Honor, that all the
warning flags for exacting equal protection scrutiny are
present here. This is a group that has suffered a
history of terrible discrimination. The Petitioners
don’t deny it.

Petitioners said at the podium today that
there is no justification for that discrimination in any
realm other than the one posed in this case, and the -and
so when those two factors are present, those are
paradigm considerations for the application of
heightened scrutiny, and so I don’t want to suggest that
the States that haven’t taken those steps –

JUSTICE SOTOMAYOR: But they are not the
only ones.

GENERAL VERRILLI: — that States that
haven’t taken this step, that they are going to have an

easy time meeting heightened scrutiny, which I think has
to apply –

JUSTICE GINSBURG: Suppose one of those
States repeals its civil union laws?

GENERAL VERRILLI: It would be a different
case. And all I’m saying is that the door ought to
remain open to that case, not that it would be easy for
the State to prevail in that case.

CHIEF JUSTICE ROBERTS: Thank you, General.
Mr. Cooper, to keep things fair, I think you
have 10 minutes.
REBUTTAL ARGUMENT OF CHARLES J. COOPER

ON BEHALF OF THE PETITIONERS

MR. COOPER: Thank you very much.

JUSTICE KENNEDY: And you might address why

you think we should take and decide this case.

MR. COOPER: Yes, Your Honor, and that is
the one thing on which I wholeheartedly agree with my
friend Mr. Olson. This case was properly — is now
properly before the Court and was properly granted, even
if, even if, Your Honor, one could defend the — the
specific judgment below for the Ninth Circuit, a defense
that I haven’t heard offered to this Court. Judicial
redefinition of marriage even in — even if it can be
limited to California, is well worthy of this Court’s

attention, particularly, Your Honor, as it come from a

single district court judge in a single jurisdiction.

I would also like –

JUSTICE SOTOMAYOR: I think that begs
your — Mr. Olson doesn’t really focus on this. If the
issue is letting the States experiment and letting the
society have more time to figure out its direction, why
is taking a case now the answer?

MR. COOPER: Because, Your Honor –

JUSTICE SOTOMAYOR: We let issues perk, and
so we let racial segregation perk for 50 years from 1898
to 1954.

MR. COOPER: Your Honor, it is hard to –

JUSTICE SOTOMAYOR: And now we are only
talking about, at most, four years.

MR. COOPER: It is hard to imagine a case
that would be better, or more thoroughly, I should say,
at least, briefed and argued to this Court.

JUSTICE SCALIA: It’s too late for that, too
late for that now, isn’t it? I mean, we granted cert.
I mean, that’s essentially asking, you know, why did we
grant cert. We should let it percolate for another -you
know, we — we have crossed that river, I think.

MR. COOPER: And in this particular case, to
not grant certiorari is to essentially bless a judicial

decision that there — that at least in the State of
California, the people have no authority to step back,
hit the pause button, and allow the experiments that are
taking place in this country to further mature; that in
fact, at least in California — and it’s impossible to
limit this ruling, Your Honor, even to California, even
the Solicitor General’s argument, he says, applies to at
least eight States.

It’s impossible to limit these propositions
to any particular jurisdiction, so this Court would be
making a very real decision with respect to same-sex
marriage if it should simply decide to dismiss the writ
as improvidently granted, Justice Kennedy.

And let’s just step back and just consider
for a moment the Solicitor General’s argument. He is
basically submitting to the Court that essentially the
one compromise that is not available to the States is
the one that the State of California has undertaken;
that is, to go as far as the people possibly can in
honoring and recognizing the families and the
relationships of same-sex couples, while still
preserving the existence of traditional marriage as an
institution. That’s the one thing that’s off the table.

JUSTICE GINSBURG: I thought he was saying,
Mr. Cooper, that it’s not before the Court today. And

remember Loving against Virginia was preceded by the
McLaughlin case. So first there was the question of no
marriage, and then there was marriage.

So, in that sense I understood the Solicitor

General to be telling us that case is not before the
Court today.

MR. COOPER: Forgive me, Justice Ginsburg.
The case of — what case isn’t before the Court?

JUSTICE GINSBURG: I think it was McLaughlin
against Florida.

MR. COOPER: Yes.

JUSTICE GINSBURG: It was cohabitation of
people of different races.

MR. COOPER: Certainly.

JUSTICE GINSBURG: And the Court took that
case and waited to reach the merits case.

MR. COOPER: It’s — yes, Your Honor. And
well, forgive me, Your Honor. I’m not sure I’m
following the Court’s question.

JUSTICE GINSBURG: I may — my memory may be
wrong, but I think the case was that people of different
races were arrested and charged with the crime of
interracial cohabitation. And the Court said that that
was invalid.

MR. COOPER: Yes.

JUSTICE GINSBURG: Unlawful.

MR. COOPER: Yes. Thank you, Your Honor.
Forgive me. And, you know, I’m glad that counsel for
the Respondents mentioned the Loving case, because what
this Court — what this Court ultimately said was
patently obvious, is that the colors of the skin of the
spouses is irrelevant to any legitimate purpose, no more
so than their hair colors, any legitimate purpose of
marriage, that interracial couples and same-race couples
are similarly situated in every respect with respect to
any legitimate purpose of marriage.

That’s what this question really boils down
here, whether or not it can be said that for every
legitimate purpose of marriage, are opposite-sex couples
and same-sex couples indistinguishable,
indistinguishable. And with all due respect to counsel
and to the Respondents, that is not a hard question.

If, in fact, it is true, as the people of
California believe that it still is true, that the
natural procreative capacity of opposite-sex couples
continues to pose vitally important benefits and risks
to society, and that’s why marriage itself is the
institution that society has always used to regulate
those heterosexual, procreative — procreative
relationships.

Counsel — the Solicitor General has said
that the ban that the proposition erects in California
is permanent. Well, it’s — certainly that is not the
view of the Respondents and what we read every day.
This is not an issue that is now at rest in the State of
California, regardless — well, unless this Court
essentially puts it to rest. That democratic debate,
which is roiling throughout this country, will
definitely be coming back to California.

LOVE IS LOVE

It is an agonizingly difficult, for many
people, political question. We would submit to you that
that question is properly decided by the people
themselves.

Thank you, Mr. Chief Justice.

CHIEF JUSTICE ROBERTS: Thank you, counsel,
counsel.

The case is submitted.

(Whereupon, at 11:27 a.m., the case in the
above-entitled matter was submitted.)

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Official – Subject to Final Review
76
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Official – Subject to Final Review
77
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Official – Subject to Final Review
78
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Official – Subject to Final Review
79
regardless 15:25 resonates 49:14 36:5,6,6,10,14 12:19 13:6 14:1 28:17
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Official – Subject to Final Review
80
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Official – Subject to Final Review
81
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55:3,4,25 56:16 treated13:11 understood 16:2 Virginia 60:15 48:4,4 52:1
57:1 58:11 59:2 treating 14:18 66:4 66:1 ways 34:21 43:25

Official – Subject to Final Review
82
weigh 21:7 10 63:11 70 48:4
We’ll 3:3 10:07 1:13 3:2
we’re 43:11 44:5 11:27 68:18 8
54:3,4,4,17 12-day 48:10 8 3:20 28:12
57:20 12-144 1:4 3:4 37:10 40:9,13
we’ve 6:11 45:17 140 37:10 45:4 49:25
49:10,10 16 49:1 51:14,17 52:10
whatsoever53:9 1791 38:4 55:15 56:4,18
wholeheartedly 1868 38:4 57:15 61:7,10
63:18 1898 64:11
willing 59:11 1954 64:12
withdrew30:4 1967 48:24 60:14
woman24:20 1971 12:15,20
wonder48:6
wonderful 47:23 2
word 58:22 2,000 21:7
words 16:22 2000 56:1
61:24 2008 18:14
work 17:14 2013 1:9
world 27:4 60:17 25 33:11
worry 22:13 26 1:9
worthy 63:25 28 2:7
wouldn’t 19:25
wrestle 13:14
writ 65:12
write 41:4 61:24
wrong 45:13
3
3 2:4
37,000 43:20
61:17
66:21 4
X 40 10:5
x 1:2,7 40,000 21:12
49 2:10
Y
Yeah 35:12
57:17
years 18:23 21:7
21:7 33:11
41:18 49:3
55:24 64:11,15
York 11:22
York’s 3:10
5
50 12:4 41:18
64:11
500 57:2
55 24:6,11,15,21
26:4,7
55-year-old
26:21
Z 6
Zablocki 45:25 63 2:14
1 7

Washington Post – How Hillary Clinton evolved on gay marriage

How Hillary Clinton evolved on gay marriage
Posted by Rachel Weiner on March 18, 2013 at 3:11 pm

On Monday, former Secretary of State Hillary Clinton came out in support of gay marriage. It was hardly an out-of-blue announcement; on the contrary, it’s been anticipated for years. Like President Obama, Clinton has long been “evolving” on this issue, under pressure from gay rights activists. A look back at that evolution:
* In 1999, running for Senate in New York, Clinton told a group of gay contributors that she considered her husband’s “Don’t Ask Don’t Tell” policy a failure. “I don’t believe “don’t ask, don’t tell” has worked,” she said. She also voiced support for gay domestic partnership benefits.
EngaygementDiamondTriangleRing Ad* Clinton said in January 2000 that marriage does not include gay unions: ”Marriage has got historic, religious and moral content that goes back to the beginning of time and I think a marriage is as a marriage has always been, between a man and a woman.” She said she would have voted for the 1996 Defense of Marriage Act, but again said she supported partnership benefits for same-sex couples. Gay groups expressed disappointment in her position.
* In October of 2000, Clinton made clear in response to a question from a gay voter that she did back civil unions — implemented in Vermont that fall. ”I don’t support gay marriages, but I do support extending benefits to couples, domestic partner benefits,” she said, “and the kind of civil union that Vermont adopted seems to be the way to create that opportunity for people.”
* When asked about the Defense of Marriage Act in 2003, a Clinton spokesman told The New York Post that ”this issue is in a state of evolution.”

*In early 2006, the head of the group Empire State Pride Agenda called for a boycott of a gay and lesbian Clinton fundraiser over her opposition to gay marriage. ”In the 2008 cycle, I don’t think any candidate can come out and say, ‘I am for gay marriage,’” gay activist and Clinton supporter Ethan Geto said in the senator’s defense.
* In October of 2006, meeting with gay elected officials, Clinton appeared to back away from her past description of marriage as an exclusively heterosexual institution. She defended the Defense of Marriage Act as a strategic decision that helped prevent a constitutional amendment banning gay marriage and said she would not oppose a law legalizing gay marriage in New York. ”I support states making the decision,” she said. As for her own views, she said that after “long conversations” with friends “the way

that I have spoken and I have advocated has certainly evolved.”
* Clinton dodged when asked March of 2007 whether she agreed with Gen. Peter Pace, then-chairman of the Joint Chiefs of Staff, whether homosexuality was immoral. “I am going to leave that to others to conclude,” she said. (Her presidential primary rival, then-Sen. Barack Obama, also dodged). After gay rights activists reacted with anger, Clinton put out a statement saying “I disagree with what he said and do not share his view, plain and simple.”
* Clinton filled out a Human Rights Campaign questionnaire in June of 2007 in which she called for the repeal of the DOMA provision that bars federal recognition of same-sex marriages in states that recognize them. However, she did not come out against the part of the act that allows states to refuse to recognize gay marriages from other states.
* In August of 2007, Clinton reaffirmed her opposition to gay marriage but tried to cast it in a less negative light. “I prefer to think of it as being very positive about civil unions,” Clinton said at a forum held by the gay and lesbian television station Logo. “It’s a personal position … we have made it clear in our country that we believe in equality. How we get to full equality is the debate we’re having

and I am absolutely in favor of civil unions with full equality … of benefits, rights, and privileges.”
* In June of 2011, Clinton hailed the “historic vote in New York” to legalize same-sex marriage. “I’ve always believed that we would make progress because we were on the right side of equality and justice,” she said. But she did not come out in support of gay marriage herself.
* In December of 2011, Clinton gave a speech that she referenced in her video Monday. “Gay rights are human rights, and human rights are gay rights,” she declared in Geneva on International Human Rights Day. “No matter what we look like, where we come from, or who we are, we are all equally entitled to our human rights and dignity.”