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11 key moments from the argument over the Defense of Marriage Act

The Supreme Court on Wednesday appeared highly skeptical of the Defense of Marriage Act, the 1996 law that blocks federal recognition of gay marriages, according to courtroom observers.

Here are 11 key moments from the arguments, which followed Tuesday's session on California's ban on same-sex marriage. The two cases could reshape the legal status of hundreds of thousands of gay couples.


1. Early in the proceedings, Vicki Jackson, a law professor appointed by the court to argue that it does not have the jurisdiction to decide the constitutionality of DOMA, makes the heart of her case:

Jackson: "While it is natural to want to reach the merits of such a significant issue, as in Raines v. Byrd, this natural urge must be put aside because, however important the constitutional question, Article III prevents its decision here and requires this Court to await another case, another day, to decide the question."


2. Chief Justice John Roberts strongly takes issue with the Obama administration’s decision to continue enforcing DOMA while believing that it is unconstitutional -- and appears to question the courage of the president:

Roberts: "And if he has made a determination that executing the law by enforcing the terms is unconstitutional, I don't see why he doesn't have the courage of his convictions and execute not only the statute, but do it consistent with his view of the Constitution, rather than saying, oh, we'll wait till the Supreme Court tells us we have no choice."


3. Justice Elena Kagan speaks of $300,000, an apparent reference to the $363,000 that Edith Windsor claims she had to pay in federal taxes on her late wife’s estate because of DOMA. She's addressing the issue of whether Windsor meets the legal standard of injury.

Kagan: "But, Ms. Jackson, I mean, to go back to Justice Kennedy's point, we have injury here in the most classic, most concrete sense. There's $300,000 that's going to come out of the government's treasury if this decision is upheld, and it won't if it isn't. Now, the Government is willing to pay that $300,000, would be happy to pay that $300,000, but whether the Government is happy or sad to pay that $300,000, the government is still paying the $300,000, which in the usual set of circumstances is the classic Article III injury."


4. Roberts again takes issue with the administration’s decision to enforce DOMA while opposing it on constitutional grounds. He is addressing Deputy Solicitor General Sri Srinivasan, arguing for the administration:

Roberts: "So this is totally unprecedented. You're asking us to do something we have never done before to reach the issue in this case."

Srinivasan: "Let me say two things about that if I might, Your Honor. First is that it's -- it's unusual, but that's not at all surprising, because the -- "

Roberts: "No, it's not just -- it's not unusual. It's totally unprecedented."


5. Later, as Roberts and Srinivasan continue to argue about the administration's enforcement of DOMA, Justice Antonin Scalia joins the fray:

Srinivasan: "But -- but my point is simply that when the president makes a determination that a statute is unconstitutional, it can follow that the Department of Justice won't defend it in litigation."

Roberts: "Sometimes you do and sometimes you don't. What is the test for when you think your obligation to take care that the laws be faithfully executed means you'll follow your view about whether it's constitutional or not or you won't follow your view?"

Srinivasan: "Mr. Chief Justice, I'd hesitate to give you a black-and-white algorithm. There are -- there are several considerations that would factor into it. One of the considerations --"

Scalia: "Excuse me. It's not your view. It's the president's. It's only when the president thinks it's unconstitutional that you can decline to defend it? Or what if the attorney general thinks it's unconstitutional?"

Srinivasan: "No, no. Of course -- "

Scalia: "Or the solicitor general, is that enough?"

Srinivasan: "28 U.S.C. 530(d) presupposes -- Congress presupposes that there are going to be occasions in which a statute is -- is not defended because of a conclusion by the attorney general that it's unconstitutional."

Scalia: "Oh, it can be either the attorney general or the solicitor ceneral?"

Srinivasan: "It could be, but this is a situation in which the president made the determination."


6. Paul Clement, defending the law on behalf of House Republicans, returns to the point about the administration’s enforcement of the law, and suggests that the move is undermining Congress:

Clement: "But what I would say is I just -- I would continue to resist the premise, which is that the House's prerogatives aren't at stake here. The House's single most important prerogative, which is to pass legislation and have that legislation, if it's going to be repealed, only be repealed through a process where the House gets to fully participate."


7. Justice Ruth Bader Ginsburg cites some of the federal benefits denied to gay couples under DOMA:

Ginsburg: "Mr. Clement, the problem is if we are totally for the states' decision that there is a marriage between two people, for the federal government then to come in to say no joint return, no marital deduction, no Social Security benefits; your spouse is very sick but you can't get leave; people -- if that set of attributes, one might well ask, what kind of marriage is this?"

Clement: "And I think the answer to that, Justice Ginsburg, would be to say that that is a marriage under state law, and I think this court's cases when it talks about the fundamental right to marriage, I take it to be talking about the state law status of marriage; and the question of what does that mean for purposes of federal law has always been understood to be a different matter."


8. Justice Samuel Alito questions the intent of certain benefits provided by the federal government -- challenging the pro-DOMA side:

Alito: "Suppose we look just at the estate tax provision that's at issue in this case, which provides specially favorable treatment to a married couple as opposed to any other individual or economic unit. What was the purpose of that? Was the purpose of that really to foster traditional marriage, or was Congress just looking for a convenient category to capture households that function as a unified economic unit?"

Clement: "Well, I think for these purposes actually, Justice Alito, if you go back to the beginning of the estate tax deduction, what Congress was trying to do was trying to provide uniform treatment of taxpayers across jurisdictions, and if you look at the brief that Senator Hatch and some other senators filed, they discussed this history, because what was happening in 1948 when this provision was initially put into federal law was you had community property states and common law states, and actually there was much more favorable tax treatment if you were in a community law state than a common law state."


9. Justice Anthony Kennedy suggests that the federal government should leave questions of marriage to the states. Ginsburg says the benefits at the heart of the argument over DOMA have a wide scope -- with an analogy to a dairy product. And Kagan questions the motives of Congress when it passed DOMA:

Kennedy: "We're helping the states do -- if they do what we want them to, which is -- which is not consistent with the historic commitment of marriage and -- and of questions of -- of the rights of children to the state."

Clement: "With respect, Justice Kennedy, that's not right. No state loses any benefits by recognizing same-sex marriage. Things stay the same. What they don't do is they don't sort of open up an additional class of beneficiaries under their state law for -- that get additional Federal benefits. But things stay the same. And that's why in this sense -- "

Ginsburg: "They're not -- they're not a question of additional benefits. I mean, they touch every aspect of life. Your partner is sick. Social Security. I mean, it's pervasive. It's not as though, well, there's this little Federal sphere and it's only a tax question. It's -- it's -- as Justice Kennedy said, 1,100 statutes, and it affects every area of life. And so he was really diminishing what the state has said is marriage. You're saying, no, state said two kinds of marriage; the full marriage, and then this sort of skim milk marriage."


Clement: "With respect, Justice Ginsburg, that's not what the federal government is saying. The federal government is saying that within its own realm in federal policies, where we assume that the federal government has the authority to define the terms that appear in their own statute, that in those areas, they are going to have their own definition. And that's -- "

Kagan: "Mr. Clement, for the most part and historically, the only uniformity that the federal government has pursued is that it's uniformly recognized the marriages that are recognized by the state. So, this was a real difference in the uniformity that the federal government was pursuing. And it suggests that maybe something -- maybe Congress had something different in mind than uniformity. So we have a whole series of cases which suggest the following: Which suggest that when Congress targets a group that is not everybody's favorite group in the world, that we look at those cases with some -- even if they're not suspect -- with some rigor to say, do we really think that Congress was doing this for uniformity reasons, or do we think that Congress's judgment was infected by dislike, by fear, by animus, and so forth? I guess the question that this statute raises, this statute that does something that's really never been done before, is whether that sends up a pretty good red flag that that's what was going on."


10. Later, Kagan presses Clement directly on the intent of Congress.

Clement: "Up until 1996, it essentially has it both ways: Every state has the traditional definition. Congress knows that's the definition that's embedded in every federal law. So that's fine. We can defer. OK. 1996 -- "

Kagan: "Well, is what happened in 1996 -- and I'm going to quote from the House report here -- is that "Congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality." Is that what happened in 1996?"

Clement: "Does the House report say that? Of course, the House Report says that. And if that's enough to invalidate the statute, then you should invalidate the statute. But that has never been your approach, especially under rational basis or even rational basis-plus, if that is what you are suggesting."


11. Solicitor General Donald Verrilli, also representing the administration, lays out his case against DOMA, and the chief justice poses a hypothetical. Section 3 is a reference to part of the law that says that marriage shall be considered a legal union between one man and one woman:

Verrilli: "The equal protection analysis in this case should focus on two fundamental points: First, what does Section 3 do; and second, to whom does Section 3 do it? What Section 3 does is exclude from an array of federal benefits lawfully married couples. That means that the spouse of a soldier killed in the line of duty cannot receive the dignity and solace of an official notification of next of kin."

Roberts: "Suppose your -- you agree that Congress could go the other way, right? Congress could pass a new law today that says, We will give federal benefits. When we say 'marriage' in federal law, we mean committed same-sex couples as well, and that could apply across the board. Or do you think that they couldn't do that?"

Verrilli: "We think that wouldn't raise an equal protection problem like this statute does, Mr. Chief Justice."