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 1:11 PM ET


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 of 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.

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