LISTEN AND READ FOR YOURSELF: Audio and Transcript of Windsor Hearing
BY Michelle Garcia
March 27 2013 2:11 PM ET
GENERAL VERRILLI: But the federalism concerns come into play in the following way: In that Mr. Clement has made the argument that, look, whatever States can do in terms of recognizing marriage or not recognizing marriage, the Federal Government has commensurate authority to do or not do. We don't think that's right as a matter of our equal protection analysis because we don't think the Federal Government should be thought of as the 51st state. States, as we told the Court, yesterday we believe heightened scrutiny ought to apply even to the State decisions -
JUSTICE KENNEDY: But you're -- you are insisting that we get to a very fundamental question about equal protection, but we don't do that unless we assume the law is valid otherwise to begin with. And we are asking is it valid otherwise. What is the Federal interest in enacting this statute and is it a valid Federal interest assuming, before we get to the equal protection analysis?
GENERAL VERRILLI: Yeah. We think whatever the outer bounds of the Federal Government's authority, and there certainly are outer bounds, would be, apart from the equal protection violation, we don't think that Section 3 apart from equal protection analysis raises a federalism problem. But we do think the federalism analysis does play into the equal protection analysis because the Federal -- the Federal Government is not the 51st state for purposes of --of the interests that Mr. Clement has identified on behalf of BLAG.
JUSTICE ALITO: Can I take you back to the example that you began with, where a member of the military is injured. So let's say three soldiers are injured and they are all in same-sex relationships, and in each instance the other partner in this relationship wants to visit the soldier in a hospital.
First is a spouse in a State that allows same-sex marriage, the second is a domestic partner in a State that an allows that but not same-sex marriage, the third is in an equally committed loving relationship in a State that doesn't involve either. Now, your argument is that under Federal law the first would be admitted, should be admitted, but the other two would be kept out?
GENERAL VERRILLI: The question in the case, Justice Alito is whether Congress has a sufficiently persuasive justification for the exclusion that it has imposed. And it -- and it does not. The only way in which -- that BLAG's arguments for the constitutionality of this statute have any prospect of being upheld is if the Court adopts the minimal rationality standard of Lee Optical.
JUSTICE ALITO: Let me take you back to the example. Your -- your position seems to me, yes, one gets in, two stay out, even though your legal arguments would lead to the conclusion that they all should be treated the same.
GENERAL VERRILLI: Well, the question before the Court is whether the exclusion that DOMA imposes violates equal protection, and it does violate equal protection because you can't treat this as though it were just a distinction between optometrists and ophthalmologists, as the Lee Optical case did. This is a different kind of a situation because the discrimination here is being visited on a group that has historically been subject to terrible discrimination on the basis of personal -
JUSTICE SCALIA: But that's -- that's the same in the example that we just gave you, that discrimination would have been visited on the same group, and you say there it's okay.
GENERAL VERRILLI: No, I didn't say that. said it would be subject to equal protection analysis certainly, and there might be a problem.
JUSTICE SCALIA: So you think that's bad as well, that all three of those has to be treated the same, despite State law about marriage.
GENERAL VERRILLI: They have to be analyzed under equal protections principles, but whatever is true about the other situations, in the situation in which the couple is lawfully married for purposes of State law and the exclusion is a result of DOMA itself, the exclusion has to be justified under this Court's equal protection analysis, and DOMA won't do it.
JUSTICE SOTOMAYOR: General Verrilli, I have a question. You think, I think from your brief yesterday and today, that on some level sexual orientation should be looked at on an intermediate standard of scrutiny?
GENERAL VERRILLI: Yes, Your Honor.