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

ORAL ARGUMENT OF DONALD B. VERRILLI, JR., ON BEHALF OF THE PETITIONER SUPPORTING AFFIRMANCE

GENERAL VERRILLI (pictured left): Mr. Chief Justice, and may it please the Court:

The equal protection analysis in this case should focus on two fundamental points: First, what does Section 3 do; and second, to whom does Section 3 do it?

What Section 3 does is exclude from an array of Federal benefits lawfully married couples. That means that the spouse of a soldier killed in the line of duty cannot receive the dignity and solace of an official notification of next of kin.

CHIEF JUSTICE ROBERTS: Suppose your -- you agree that Congress could go the other way, right? Congress could pass a new law today that says, We will give Federal benefits. When we say "marriage" in Federal law, we mean committed same-sex couples as well, and that could apply across the board.

Or do you think that they couldn't do that?

GENERAL VERRILLI: We think that wouldn't raise an equal protection problem like this statute does, Mr. Chief Justice.

CHIEF JUSTICE ROBERTS: Well, no, my point is: It wouldn't -- you don't think it would raise a federalism problem either, do you?

GENERAL VERRILLI: I don't think it would raise a federalism problem.

CHIEF JUSTICE ROBERTS: Okay.

GENERAL VERRILLI: And I -- but the key for the -- for the -- our purposes is that, in addition to denying these fundamental important -- fundamentally important benefits, is who they are being denied to.

CHIEF JUSTICE ROBERTS: So just to be clear, you don't think there is a federalism problem with what Congress has done in DOMA?

GENERAL VERRILLI: We -- no, we don't, Mr. Chief Justice.

CHIEF JUSTICE ROBERTS: Okay.

GENERAL VERRILLI: The question is: What is the constitutionality for equal protection purposes, and because it's unconstitutional and it's embedded into numerous Federal statutes, those statutes will have an unconstitutional effect. But it's the equal protection violation from the perspective of the United States that -

JUSTICE KENNEDY: You think Congress can use its powers to supercede the traditional authority and prerogative of the States to regulate marriage in all respects? Congress could have a uniform definition of marriage that includes age, consanguinity, etc., etc.?

GENERAL VERRILLI: No, I'm not saying that, Your Honor. I think if Congress passed such a statute, then we would have to consider how to defend it. But that's not -

JUSTICE KENNEDY: Well, but then there is a federalism interest at stake here, and I thought you told the Chief Justice there was not.

GENERAL VERRILLI: Well, with respect to Section 3 of DOMA, the problem is an equal protection problem from the point of view of the United States.

JUSTICE KAGAN: Yes, but, General, surely the question of what the Federal interests are and whether those Federal interests should take account of the historic State prerogatives in this area is relevant to the equal protection inquiry?'

GENERAL VERRILLI: It's central to the inquiry, Justice Kagan. I completely agree with that point.

CHIEF JUSTICE ROBERTS: Oh, so it would be central to the inquiry if Congress went the other way, too?

GENERAL VERRILLI: Well, the difference is what Section 3 does is impose this exclusion from Federal benefits on a class that has undeniably been subject to a history of terrible discrimination on the basis of -

CHIEF JUSTICE ROBERTS: I understand that. That's your equal protection argument. It's not very responsive to my concern I'm trying to get an answer to. You don't think federalism concerns come into play at all in this, right?

GENERAL VERRILLI: Well, I think -- I just want to clarify. The equal protection question would be different than the other circumstance. That's a matter of -

CHIEF JUSTICE ROBERTS: I know the equal protection argument.