LISTEN AND READ FOR YOURSELF: Audio and Transcript of Windsor Hearing
BY Michelle Garcia
March 27 2013 2:11 PM ET
JUSTICE SOTOMAYOR: All right, heightened in some way. Going back to the Chief's question about a law that was passed recognizing common law heterosexual -- homosexual marriages. I think even under your theory that might be suspect because -- that law might be suspect under equal protection, because once we say sexual orientation is suspect, it would be suspect whether it's homosexual or heterosexual. The law favors homosexuals; it would be suspect because it's based on sexual orientation.
GENERAL VERRILLI: You would have -- you would have to impose the heightened scrutiny equal protection analysis, sure.
JUSTICE SOTOMAYOR: Exactly. And so when we decided race was a suspect class, people who are not blacks have received -
GENERAL VERRILLI: Yes, that's certainly -
JUSTICE SOTOMAYOR: -- strict scrutiny on whether the use of race as a class, whether they are white or a black, is justified by a compelling interest.
GENERAL VERRILLI: That is certainly true, Your Honor. If I could turn to the interest that BLAG has actually identified as supporting this statute, I think there are -- there are -- I think that you can see what the problem is here.
Now, this statute is not called the Federal Uniform Marriage Benefits Act; it's called the Defense of Marriage Act. And the reason for that is because the statute is not directed at uniformity in the administration of Federal benefits. All -- there is two equally uniform systems, the system of respecting the State choices and the system of -- that BLAG is advocating here.
And what BLAG's got to do in order to satisfy equal protection scrutiny is justify the choice between one and the other, and the difference between the two is that the Section 3 choice is a choice that Section 3 choice is a choice that discriminates. So it's not simply a matter sufficient to say, well, uniformity is enough. Section 3 discriminates.
CHIEF JUSTICE ROBERTS: So as soon as one State adopted same sex marriage, the definition of marriage throughout the Federal code had to change? Because there is no doubt that up until that point every time Congress said "marriage" they understood they were acting under the traditional definition of marriage.
GENERAL VERRILLI: Well, I don't know, Mr. Chief Justice, why you wouldn't assume that what Congress was doing when it enacted a statute, particularly a statute that had the word "marriage" in it, was assuming that the normal rule that applies in the vast majority of circumstances of deference to the State definition of marriage would be the operative principle.
CHIEF JUSTICE ROBERTS: So you don't think that when Congress said "marriage" in every one of these provisions that they had in mind same-sex marriages?
GENERAL VERRILLI: No, but they may well have had in mind deferring to the normal State definition of marriage, whatever it is. Not that they were making the specific choice that my friend suggested they were. But whatever is the case, when Congress enacted DOMA that choice of exclusion has to be justified under appropriate equal protection principles.
So the issue of uniformity just doesn't get you there, because there is no uniformity advantage to Section 3 of DOMA as opposed to the traditional rule. The issue of administration doesn't get you there. I mean, at a very basic level administrative concerns ought not be an important enough interest to justify this kind of a discrimination under the Equal Protection Clause.
But even if you look at them, there are no genuine administrative benefits to DOMA. If anything, Section 3 of DOMA makes Federal administration more difficult, because now the Federal Government has to look behind valid state marriage licenses and see whether they are about State marriages that are out of compliance with DOMA.
It's an additional administrative burden. So there is no -- there is no administrative -- there is no administrative advantage to be gained here by what -by what Congress sought to achieve. And the fundamental reality of it is, and I think the House report makes this glaringly clear, is that DOMA was not enacted for any purpose of uniformity, administration, caution, pausing, any of that.
It was enacted to exclude same-sex married, lawfully married couples from Federal benefit regimes based on a conclusion that was driven by moral disapproval. It is quite clear in black and white in the pages of the House report which we cite on page 38 of our brief -
CHIEF JUSTICE ROBERTS: So that was the view of the 84 Senators who voted in favor of it and the President who signed it? They were motivated by animus?
GENERAL VERRILLI: No, Mr. Chief Justice. We quoted our -- we quoted the Garrett concurrence in our brief, and I think there is a lot of wisdom there, that it may well not have been animus or hostility. It may well have been what Garrett described as the simple want of careful reflection or an instinctive response to a class of people or a group of people who we perceive as alien or other.
But whatever the explanation, whether it's animus, whether it's that -- more subtle, more unthinking, more reflective kind of discrimination, Section 3 is discrimination. And I think it's time for the Court to recognize that this discrimination, excluding lawfully married gay and lesbian couples from Federal benefits, cannot be reconciled with our fundamental commitment to equal treatment under law.
This is discrimination in its most very basic aspect, and the House Report, whether -- and I certainly would not suggest that it was universally motivated by something other than goodwill -- but the reality is that it was an expression of moral disapproval of exactly the kind that this Court said in Lawrence would not justify the law that was struck down there.
JUSTICE SOTOMAYOR: General, your bottom line is, it's an equal protection violation for the Federal Government, and all States as well?
GENERAL VERRILLI: Yes, Your Honor, and that's the -- we took the position we took yesterday with respect to marriage -- the analysis -
JUSTICE SOTOMAYOR: Is there any argument you can make to limit this to this case, vis-à-vis the Federal Government and not the States?
GENERAL VERRILLI: Well, as we said yesterday, we think it's an open question with respect to State recognition of marriage, and they may well be able to advance interests -- they may be able to advance it. I guess I shouldn't say "may well," because I do think it would be difficult, as we said yesterday. They may be able to advance interests that would satisfy heightened scrutiny and justify non-recognition --
JUSTICE BREYER: Then yet -- but here -
GENERAL VERRILLI: But -- but here, the Federal Government's not in the same position because as BLAG concedes, the Federal Government at the most can act at the margins in influencing these decisions about marriage and child rearing at the State level. And the Second Circuit and the First Circuit both concluded that there's no connection at all, and that's of course because Section 3 doesn't make it any more likely that unmarried men and women in States -- that -- unmarried men and women who confront an unplanned pregnancy are going to get married.
And -- and elimination of Section 3 wouldn't make it any less likely that unmarried men and women are going to get married. It doesn't have any effect at all. It doesn't have any connection at all. So it's not at the margins. There's no interest at all at this -- in DOMA in promoting -
JUSTICE BREYER: Or if there's no interest -- I mean, I'm back where we were yesterday. It seems to me, forgetting your -- your preferable argument, it's a violation of equal protection everywhere. Well, if it is, then all States have to have something like pacts. And if they have to have something like pacts, then you say then they also have to allow marriage.
So then are you not arguing they all have to allow marriage? And then you say no. So with that point -
GENERAL VERRILLI: But our point here, Justice Breyer, is that whatever -- may I finish?
Whatever the issue is, with -- whatever the outcome is with respect to States and marriage, that the Federal Government's interest in advancing those justifications through Section 3 of DOMA is so attenuated that two Federal courts of appeals have seen it as non-existent, and it cannot justify Section 3.
CHIEF JUSTICE ROBERTS: Thank you, General.
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