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 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 something 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?

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