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 1:11 PM ET

JUSTICE SOTOMAYOR: So I pose the same question I posed to the General to you. Do you think there's a difference between that discrimination and -and the discrimination of States who say homosexuals can't get married?

MS. KAPLAN: I think that it's -- they're different cases. I think when you have couples who are gay who are already married, you have to distinguish between those classes. Again, the Federal Government doesn't give marriage licenses, States do, and whatever the issues would be in those States would be what interest the States have, as opposed to here, what interest -- and we think there is none -- the Federal Government has.

There is little doubt that the answer to the question of why Congress singled out gay people's marriages for disrespect through DOMA. The answer can't be uniformity as we've discussed. It can't be cost savings, because you still have to explain then why the cost savings is being wrought at the expense of married couples who are gay; and it can't be any of the State interests that weren't discussed, but questions of family law in parenting and marriage are done by the States, not by the Federal Government. The only -- the only conclusion that can be drawn is what was in the House Report, which is moral disapproval of gay people, which the Congress thought was permissible in 1996 because it relied on the Court's Bowers decision, which this Court has said was wrong, not only at the time it was overruled in Lawrence, but was wrong when it was decided.

CHIEF JUSTICE ROBERTS: So 84 Senators -it's the same question I asked before; 84 Senators based their vote on moral disapproval of gay people?

MS. KAPLAN: No, I think -- I think what is true, Mr. Chief Justice, is that times can blind, and that back in 1996 people did not have the understanding that they have today, that there is no distinction, there is no constitutionally permissible distinction -

CHIEF JUSTICE ROBERTS: Well, does that mean -- times can blind. Does that mean they did not base their votes on moral disapproval?

MS. KAPLAN: No; some clearly did. I think it was based on an understanding that gay -- an incorrect understanding that gay couples were fundamentally different than straight couples, an understanding that I don't think exists today and that's the sense I'm using that times can blind. I think there was -- we all can understand that people have moved on this, and now understand that there is no such distinction. So I'm not saying it was animus or bigotry, I think it was based on a misunderstanding on gay people and their -

JUSTICE SCALIA: Why -- why are you so confident in that -- in that judgment? How many -- how many States permit gay -- gay couples to marry?

MS. KAPLAN: Today? 9, Your Honor.

JUSTICE SCALIA: 9. And -- and so there has been this sea change between now and 1996.

MS. KAPLAN: I think with respect to the understanding of gay people and their relationships there has been a sea change, Your Honor.

JUSTICE GINSBURG: How many States have civil unions now?

MS. KAPLAN: I believe -- that was discussed in the arguments, 8 or 9, I believe.

JUSTICE GINSBURG: And how many had it in 1996?

MS. KAPLAN: I -- yes, it was much, much fewer at the time. I don't have that number, Justice Ginsburg; I apologize.

CHIEF JUSTICE ROBERTS: I suppose the sea change has a lot to do with the political force and effectiveness of people representing, supporting your side of the case?

MS. KAPLAN: I disagree with that, Mr. Chief Justice, I think the sea change has to do, just as discussed was Bowers and Lawrence, was an understanding that there is no difference -- there was fundamental difference that could justify this kind of categorical discrimination between gay couples and straight couples.

CHIEF JUSTICE ROBERTS: You don't doubt that the lobby supporting the enactment of same sex-marriage laws in different States is politically powerful, do you?

MS. KAPLAN: With respect to that category, that categorization of the term for purposes of heightened scrutiny, I would, Your Honor. I don't -

CHIEF JUSTICE ROBERTS: Really?

MS. KAPLAN: Yes.

CHIEF JUSTICE ROBERTS: As far as I can tell, political figures are falling over themselves to endorse your side of the case.

MS. KAPLAN: The fact of the matter is, Mr. Chief Justice, is that no other group in recent history has been subjected to popular referenda to take away rights that have already been given or exclude those rights, the way gay people have. And only two of those referenda have ever lost. One was in Arizona; it then passed a couple years later. One was in Minnesota where they already have a statute on the books that prohibits marriages between gay people.

So I don't think -- and until 1990 gay people were not allowed to enter this country. So I don't think that the political power of gay people today could possibly be seen within that framework, and certainly is analogous -- I think gay people are far weaker than the women were at the time of Frontiero.

CHIEF JUSTICE ROBERTS: Well, but you just referred to a sea change in people's understandings and values from 1996, when DOMA was enacted, and I'm just trying to see where that comes from, if not from the political effectiveness of -- of groups on your side of the case.

MS. KAPLAN: To flip the language of the House Report, Mr. Chief Justice, I think it comes from a moral understanding today that gay people are no different, and that gay married couples' relationships are not significantly different from the relationships of straight married people. I don't think -

CHIEF JUSTICE ROBERTS: I understand that. I am just trying to see how -- where that that moral understanding came from, if not the political effectiveness of a particular group.

MS. KAPLAN: I -- I think it came -- is, again is very similar to the, what you saw between Bowers and Lawrence. I think it came to a societal understanding. I don't believe that societal understanding came strictly through political power; and I don't think that gay people today have political power as that -this Court has used that term with -- in connection with the heightened scrutiny analysis.

CHIEF JUSTICE ROBERTS: Thank you, Ms. Kaplan.

Mr. Clement, you have 3 minutes remaining.

REBUTTAL ARGUMENT OF PAUL D. CLEMENT ON BEHALF OF THE RESPONDENT BIPARTISAN LEGAL ADVISORY GROUP OF THE UNITED STATES

MR. CLEMENT: Thank you, Mr. Chief Justice, just three points in rebuttal.

First of all, I was not surprised to hear the Solicitor General concede that there is no unique federalism problem with DOMA, because in the Gill litigation in the First Circuit, the State of Massachusetts -- the Commonwealth of Massachusetts invoked the Tenth Amendment, and on that issue the United States continued to defend DOMA because there is no unique federalism problem with it, as the Chief Justice's question suggested. If 10 years from now there are only 9 States left and Congress wants to adopt a uniform Federal law solely for Federal law purposes to going the other way, it is fully entitled to do that. It has the power to do that.

I would say also the Federal Government has conceded in this litigation that there is a rational basis for this statute, something else to keep in mind.

I would also say that this provision is not so unique. The very next provision in the Dictionary Act -

JUSTICE GINSBURG: Rational basis, Mr. Clement -- is a problem in your briefing. You seem to say and you repeat it today that there is three tiers, and if you get into rational basis then it's anything goes. But the history of this Court is, in the very first gender discrimination case, Reed v. Reed, the Court did something it had never done in the history of the country under rational basis. There was no intermediate tier then. It was rational basis.

MR. CLEMENT: Well -

JUSTICE GINSBURG: And yet the Court said this is rank discrimination and it failed.

MR. CLEMENT: And, Justice Ginsburg, applying rational basis to DOMA, I think that there are many rational bases that support it. And the Solicitor General says, well, you know, the United States is not the 51st State to be sure, but the Federal Government has interests in uniformity that no other entity has.

And we heard today that there's a problem; when somebody moves from New York to North Carolina, they can lose their benefits. The Federal Government uniquely, unlike the 50 States, can say, well, that doesn't make any sense, we are going to have the same rule. We don't want somebody, if they are going to be transferred in the military from West Point to Fort Sill in Oklahoma, to resist the transfer because they are going to lose some benefits.

It makes sense to have a uniform Federal rule for the Federal Government. It is not so anomalous that the term "marriage" is defined in the U.S. Code. The very next provision of the Dictionary Act defines "child." These terms, although they are the primary province of State governments, do appear in multiple Federal statutes and it's a Federal role to define those terms.

The last point I would simply make is in thinking about animus, think about the fact that Congress asked the Justice Department three times about the constitutionality of the statute. That's not what you do when you are motivated by animus. The first two times they got back the answer it was constitutional. The third time, they asked again in the wake of Romer, and they got the same answer: It's constitutional.

Now the Solicitor General wants to say: Well, it was want of careful reflection? Well, where do we get careful reflection in our system? Generally, careful reflection comes in the democratic process. The democratic process requires people to persuade people.

The reason there has been a sea change is a combination of political power, as defined by this Court's cases as getting the attention of lawmakers; certainly they have that. But it's also persuasion. That's what the democratic process requires. You have to persuade somebody you're right. You don't label them a bigot. You don't label them as motivated by animus. You persuade them you are right.

That's going on across the country. Colorado, the State that brought you Amendment 2, has just recognized civil unions. Maine, that was pointed to in the record in this case as being evidence of the persistence of discrimination because they voted down a statewide referendum, the next election cycle it came out the other way. And the Federal Congress is not immune. They repealed "Don't Ask, Don't Tell." Allow the democratic process to continue.

Thank you, Your Honor.

CHIEF JUSTICE ROBERTS: Thank you, counsel, counsel.

The case is submitted.

(Whereupon, at 12:13 p.m., the case in the above-entitled matter was submitted.)

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