Excerpts of gay marriage cases at high court

Thursday - 3/28/2013, 3:13am EDT

The Associated Press

Excerpts from arguments before the Supreme Court on Wednesday about a federal law that prevents legally married gay couples from receiving a range of benefits afforded straight married Americans, from a transcript released by the court:


On why President Barack Obama is still enforcing the law if he believes it is unconstitutional (Chief Justice John Roberts):

ROBERTS: If (President Obama) 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.


On the question of whether the definition of marriage should be a federal matter (Justice Anthony Kennedy and Paul Clement, the lawyer representing the House Republican leadership in defending the law):

KENNEDY: But when it has 1,100 laws, which in our society means that the federal government is intertwined with the citizens' day-to-day life, you are at -- at real risk of running in conflict with what has always been thought to be the essence of the state police power, which is to regulate marriage, divorce, custody.

CLEMENT: Well, Justice Kennedy, two points. First of all, the very fact that there are 1,100 provisions of federal law that define the terms "marriage" and "spouse" goes a long way to showing that federal law has not just stayed completely out of these issues. It's gotten involved in them in a variety of contexts where there is an independent federal power that supported that. Now, the second thing is the fact that (the Defense of Marriage Act) involves all 1,100 statutes at once is not really a sign of its irrationality. It is a sign that what it is, and all it has ever purported to be, is a definitional provision. And like every other provision in the Dictionary Act, what it does is it defines the term wherever it appears in federal law in a consistent way. And that was part and parcel of what Congress was trying to accomplish with DOMA in 1996.


On the issue of benefits (Justice Ruth Bader Ginsburg and Clement):

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.


On what Congress intended when it passed the bill in 1996 (Justice Elena Kagan and Clement):

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. This Court, even when it's to find more heightened scrutiny, the O'Brien case we cite, it suggests, look, we are not going to strike down a statute just because a couple of legislators may have had an improper motive. We're going to look, and under rational basis, we look: Is there any rational basis for the statute? And so, sure, the House Report says some things that we are not -- we've never invoked in trying to defend the statute. But the House Report says other things, like Congress was trying to promote democratic self-governance.


On whether there has been a "sea change" in opinion on gay marriage since the law was enacted in 1996 (Roberta Kaplan, the lawyer for the 83-year-old New York woman who sued over DOMA, and Justice Antonin Scalia):

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