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

ORAL ARGUMENT OF ROBERTA A. KAPLAN, ON BEHALF OF THE RESPONDENT WINDSOR

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

I'd like to focus on why DOMA fails even under rationality review. Because of DOMA, many thousands of people who are legally married under the laws of nine sovereign States and the District of Columbia are being treated as unmarried by the Federal Government solely because they are gay.

These couples are being treated as unmarried with respect to programs that affect family stability, such as the Family Leave Act, referred to by Justice Ginsburg. These couples are being treated as unmarried for purposes of Federal conflict of interest rules, election laws and anti-nepotism and judicial recusal statutes.
And my client was treated as unmarried when her spouse passed away, so that she had to pay $363,000 in estate taxes on the property that they had accumulated during their 44 years together.

CHIEF JUSTICE ROBERTS: Could I ask you the same question I asked the Solicitor General?

Do you think there would be a problem if Congress went the other way, the federalism problem? Obviously, you don't think there's an equal protection problem -

MS. KAPLAN: Right.

CHIEF JUSTICE ROBERTS: -- but a federalism issue, Congress said, we're going to recognize same-sex couples -- committed same-sex couples -- even if the State doesn't, for purposes of Federal law?

MS. KAPLAN: Obviously, with respect to marriage, the Federal Government has always used the State definitions. And I think what you're -- Mr. Chief Justice, what you're proposing is to extend -- the Federal Government extend additional benefits to gay couples in States that do not allow marriage, to equalize the system.

CHIEF JUSTICE ROBERTS: I just am asking whether you think Congress has the power to interfere with the -- to not adopt the State definition if they're extending benefits. Do they have that authority?

MS. KAPLAN: I think the question under the Equal Protection Clause is what -- is what the distinction is.

CHIEF JUSTICE ROBERTS: No, no. I know that.

You're following the lead of the Solicitor General and returning to the Equal Protection Clause every time I ask a federalism question.

Is there any problem under federalism principles?

MS. KAPLAN: With the Federal Government -

CHIEF JUSTICE ROBERTS: With Congress passing a law saying, we are going to adopt a different definition of marriage than those States that don't recognize same-sex marriage. We don't care whether you do as a matter of State law, when it comes to Federal benefits, same-sex marriage will be recognized.

MS. KAPLAN: It has certainly been argued in this case by others that -- whether or not that's in any way the powers of the Federal Government. For the reasons Justice Kagan mentioned, we think the federalism principles go toward the novelty question. I think whether or not the Federal Government could have its own definition of marriage for all purposes would be a very closely argued question.

JUSTICE SCALIA: I don't understand your answer. Is your answer yes or no? Is there a federalism problem with that, or isn't there a federalism problem?

MS. KAPLAN: I -- I think the Federal Government could extend benefits to gay couples to equalize things on a programmatic basis to make things more equal. Whether the Federal Government can have its own definition of marriage, I think, would be -- there's a -- it'd be very closely argued whether that's outside the enumerated approach.

JUSTICE SCALIA: Well, it's just -- all these statutes use the term "marriage," and the Federal Government says in all these statutes when it says marriage, it includes same-sex couples, whether the State acknowledges them to be married or not.

MS. KAPLAN: But that -- I don't know if that would work, because they wouldn't -

JUSTICE SCALIA: What do you mean whether or not it would work? I don't care if it works.

(Laughter.)

JUSTICE SCALIA: Does it -- does it create a federalism problem?

MS. KAPLAN: The power to marry people is a power that rests with the States.

JUSTICE SCALIA: Yes.

MS. KAPLAN: The Federal Government doesn't issue marriage licenses. It never has.

JUSTICE SCALIA: Well, it's not doing that, it's just saying for purposes -- just what it's doing here. It says, for purposes of all these Federal statutes, when we say marriage, we mean -- instead of saying we mean heterosexual marriage, we mean, whenever we use it, heterosexual and homosexual marriage.

If that's what it says, can it do that?

MS. KAPLAN: As long as the people were validly married under State law, and met the requirements of State law to get married -

JUSTICE SCALIA: No, no, no, no. It includes -