LISTEN AND READ FOR YOURSELF: Audio and Transcript of Windsor Hearing

The complete audio and transcript of today's hearing has been released.



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

Mr. Clement?


MR. CLEMENT: Mr. Chief Justice, and may it please the Court: The issue of same-sex marriage certainly implicates profound and deeply held views on both sides of the issue, but the legal question on the merits before this Court is actually quite narrow. On the assumption that States have the constitutional option either to define marriage in traditional terms or to recognize same-sex marriages or to adopt a compromise like civil unions, does the Federal Government have the same flexibility or must the Federal Government simply borrow the terms in State law?

I would submit the basic principles of federalism suggest that as long as the Federal Government defines those terms solely for purposes of Federal law, that the Federal Government has the choice to adopt a constitutionally permissible definition or to borrow the terms of the statute.

JUSTICE GINSBURG: Mr. Clement, the problem is if we are totally for the States' decision that there is a marriage between two people, for the Federal Government then to come in to say no joint return, no marital deduction, no Social Security benefits; your spouse is very sick but you can't get leave; people -if that set of attributes, one might well ask, what kind of marriage is this?

MR. CLEMENT: And I think the answer to that, Justice Ginsburg, would be to say that that is a marriage under State law, and I think this Court's cases when it talks about the fundamental right to marriage, I take it to be talking about the State law status of marriage; and the question of what does that mean for purposes of Federal law has always been understood to be a different matter. And that's been true certainly in a number of situations under a number of statutes, so it's simply not the case that as long as you are married under State law you absolutely are going to be treated as married -

JUSTICE GINSBURG: How about divorce? Same thing? That you can have a Federal notion of divorce, and that that doesn't relate to what the State statute 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 affects 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.