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

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.


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 -