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

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

BY Michelle Garcia

March 27 2013 2:11 PM ET

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 provide uniform treatment of taxpayers across jurisdictions, and if you look at the brief that Senator Hatch and some other Senators filed, they discussed this history, because what was happening in 1948 when this provision was initially put into Federal law was you had community property States and common law States, and actually there was much more favorable tax treatment if you were in a community law State than a common law State.

And Congress didn't want to have an artificial incentive for States to move from common law to community property; it wanted to treat citizens the same way no matter what State they were in. So it said, we will give a uniform Federal deduction based on marriage, and I think what that shows is that when the Federal Government gets involved in the issue of marriage, it has a particularly acute interest in uniform treatment of people across State lines.

So Ms. Windsor wants to point to the unfairness of the differential treatment of treating two New York married couples differently, and of course for purposes of New York law that's exactly the right focus, but for purposes of Federal law it's much more rational for Congress to -- to say, and certainly a rational available choice, for Congress to say, we want to treat the same-sex couple in New York the same way as the committed same-sex couple in Oklahoma and treat them the same. Or even more to the point for purposes -

JUSTICE SOTOMAYOR: But that's begging the question, because you are treating the married couples 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.)

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