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 2:11 PM ET


MS. KAPLAN: I'm not sure that the Federal Government -- this answers your question, Justice Scalia -- I'm not sure the Federal Government can create a new Federal marriage that would be some kind of marriage that States don't permit.

JUSTICE ALITO: Well, let me get to the question I asked Mr. Clement. It just gets rid of the word "marriage," takes it out of the U.S. Code completely. Substitutes something else, and defines it as same-sex -- to include same-sex couples. Surely it could do that.

MS. KAPLAN: Yes. That would not be based on the State's -

JUSTICE ALITO: So it's just the word "marriage"? And it's just the fact that they use this term "marriage"?

MS. KAPLAN: Well, that's what the Federal Government has always chosen to do. And that's the way the Federal law is structured, and it's always been structured for 200 years based on the State police power to define who's married. The Federal Government I presume could decide to change that if it wanted, and somehow, it would be very strange for all 1,100 laws, but for certain programs -- you have different requirements other than marriage, and that would be constitutional or unconstitutional depending on the distinction.

JUSTICE ALITO: But if the estate tax follows State law, would not that create an equal protection problem similar to the one that exists here? Suppose there were a dispute about the -- the State of residence of your client and her partner or spouse. Was it New York, was it some other State where same-sex marriage would not have been recognized? And suppose there was -- the State court said the State of residence is a State where it's not recognized.

Would -- would you not have essentially the same equal protection argument there that you have now?

MS. KAPLAN: Well, let me -- let me answer that question very clearly. Our position is only with respect to the nine States -- and I think there are two others that recognize these marriages. So if my client -- if a New York couple today marries and moves to North Carolina, one of -- which has a constitutional amendment, a State constitutional amendment -- and one of the spouses dies, they would not -- and estate taxes determine where the person dies, they would not be entitled to the deduction. That is not our claim here.

Moreover, Justice Alito, in connection with a whole host of Federal litigation, there has been Federal litigation for hundreds of years with respect to the residency of where people live or don't live, or whether they are divorced or not divorced throughout the Federal system. And the Federal Government has always handled that and has never before -- and we believe this is why it's unconstitutional -- separated out a class of married gay couples solely because they were gay.

JUSTICE ALITO: Just -- if I could follow up with one -- one question. What if the -- the hypothetical surviving spouse, partner in North Carolina, brought an equal protection argument, saying that there is no -- it is unconstitutional to treat me differently because I am a resident of North Carolina rather than a resident of New York. What would be -would that be discrimination on the basis of sexual orientation? What would be the level of scrutiny? Would it survive?

MS. KAPLAN: That would be certainly a different case. It'd be more similar to the case I think you heard yesterday than the case that we have today. We certainly believe that sexual-orientation discrimination should get heightened scrutiny. If it doesn't get heightened scrutiny, obviously, it'd be rational basis, and the question would be what the State interests were in not allowing couples, for example, in North Carolina who are gay to get married.

No one has identified in this case, and I don't think we've heard it in the argument from my friend, any legitimate difference between married gay couples on the one hand and straight married couples on the other that can possibly explain the sweeping, undifferentiated and categorical discrimination of DOMA, Section 3 of DOMA.

And no one has identified any legitimate Federal interest that is being served by Congress's decision, for the first time in our nation's history to undermine the determinations of the sovereign States with respect to eligibility for marriage. I would respectfully contend that this is because there is none.

Rather, as the title of the statute makes clear, DOMA was enacted to defend against the marriages of gay people. This discriminatory purpose was rooted in moral disapproval as Justice Kagan pointed out.

JUSTICE BREYER: What -- what do you think of his -- the argument that I heard was, to put the other side, at least one part of it as I understand it said: Look, the Federal Government needs a uniform rule. There has been this uniform one man - one woman rule for several hundred years or whatever, and there's a revolution going on in the States. We either adopt the resolution -- the revolution or push it along a little, or we stay out of it. And I think Mr. Clement was saying, well, we've decided to stay out of it -

MS. KAPLAN: I don't -

JUSTICE BREYER: -- and the way to stay out of it is to go with the traditional thing. I mean, that -- that's an argument. So your answer to that argument is what?

MS. KAPLAN: I think it's an incorrect argument, Justice Breyer, for the -

JUSTICE BREYER: I understand you do; I'd like to know the reason.

(Laughter.)

MS. KAPLAN: Of course. Congress did not stay out of it. Section 3 of DOMA is not staying out of it. Section 3 of DOMA is stopping the recognition by the Federal Government of couples who are already married, solely based on their sexual orientation, and what it's doing is undermining, as you can see in the briefs of the States of New York and others, it's undermining the policy decisions made by those States that have permitted gay couples to marry.

States that have already resolved the cultural, the political, the moral -- whatever other controversies, they're resolved in those States. And by fencing those couples off, couples who are already married, and treating them as unmarried for purposes of Federal law, you're not -- you're not taking it one step at a time, you're not promoting caution, you're putting a stop button on it, and you're having discrimination for the first time in our country's history against a class of married couples.

CHIEF JUSTICE ROBERTS: Is the -

JUSTICE SOTOMAYOR: Now, the -- the discriminations are not the sexual orientation, but on a class of marriage; is that what you're -

MS. KAPLAN: It's a class of married couples who are gay.

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