Oral Argument Legal Case Summary

Oral Audio Transcript(Beta version)

. It says that the President shall take care that the laws be faithfully executed. So the President has worked out, I personally, and for reasons in my department, others think, that this law is unconstitution, but I have this obligation. And because I have this obligation, I will not. I will continue to execute this law. I will continue to execute it, though I disagree with it. And I execute it until I have an authoritative determination, not to. How is that different from a trustee who believes that he has an obligation to a trust, to do something under a certain provision that he thinks doesn't require that, but there's a debate about it, but he says, I have the obligation here. I'm going to follow this through. There would be standing in the second case for any fiduciary, despite his personal beliefs, to continue. We'd understand that and say there was standing. Why don't we hear? Well, the trustee, I think, would be able to go to a court of first instance to get an adjudication of the claim. What I'm submitting to you that the trustee could not do. After getting the first, the judgment in the court of first instance, stating what the remedy, what the liability is, then seek review of that judgment, but ask only for it to be a- But that's the part I don't understand. If, in fact, as you agree, the trustee or other fiduciary, in my example, would indeed have standing to act according to the law, even though he thinks that that law is unconstitutional because of his obligation, such as under Section 2. You agree he has the idea that there is standing when he goes into court in the first place, which surely he could interpret. Article 2 is saying, and you follow it through, as long as you can do it, which includes appeals until the matter is determined, finally, and authoritatively, by a court. If you could do the first, what suddenly stops you from doing the second? In the first instance, the obligations are uncertain that trustee is presumably subject to potentially adverse competing claims on his or her action. Well, I would have thought your answer would be that the executive's obligation to execute the law includes the obligation to execute the law consistent with the Constitution. 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 to the Supreme Court, tells us we have no choice. Mr. Chief Justice, I think that's a hard question under Article 2, but I think the Article 3 questions that this Court is facing. Turn on what the parties in the case have alleged, what relief they're seeking, and what the posture is. In the infeidel court, St. jurisprudence, are you saying there's a lack of adversity here? I am saying, Prime Minister, can you give us a pigeonhole? It's a little difficult because the circumstances unusual, Justice Kennedy, but I think the most apt of the doctrines, although they are overlapping and reinforce each other, the most apt is standing. This Court has made clear that a party on appeal has to meet the same Article 3 standing requirements of injury caused by the action complained of and redressable by the relief requested by- Well, it seems to me there's- there's injury here. Well, Your Honor, I do not agree that the injuries alleged by the United States should be cognizable by the Article 3 courts because those injuries are exactly what it asked the courts below to produce. But even if we treat the injuries as sufficiently alleged, Article 3 requires that the party complain of injury ask the court to remedy that injury. And that's a very important requirement, I think, under Article 3 for several reasons. The idea of the case or controversy limitation, as I understand it, is part of a broader separation of powers picture to make sure the Federal courts perform their proper role. And the reason why the Court has to be aware of the legal obligation that justifies judicial review of constitutional issues- For 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 3 injury. Why isn't it here? Justice Kagan, there is a three-pronged test. Even if you treat that as injury, it does not meet the requirements for standing on appeal because the government has not asked this Court to remedy that injury. The government has not asked this Court to overturn the rulings below so it doesn't have to pay the $365,000. It has asked this Court to affirm. And the case or controversy requirements that we're talking about are nested in an adversarial system where we rely on the parties to state their injuries and make their claims for relief. If the government or any party is not bound with respect to standing by its articulated request for a remedy, what that does is it enables the Court to fill in, to reshape, and for a doctrine that is supposed to be limiting the occasions for a judicial review of constitutionality, that is troubling. But don't we often separate those two things, ask whether there is injury for Article 3 purposes and causation and redressability, as you say, but then say, well, sometimes when all of those are met, there's not going to be adequate presentation of the arguments. And so we will appoint an amicus or will restructure things. And we do that when the government confesses error often. I mean, we do that several times a year in this courtroom. Yes, Your Honor, but confession of error cases with respect are quite different because in confession of error cases typically both parties at the appellate level end up being adverse to the judgment below. And they are asking relief from this Court, from the judgment below. But here we have a situation where a putting black to one side for the moment, between the United States and Ms. Windsor, there is no adversity, their inagreement. And neither of them is asking this Court to reverse or modify the judgment below. And so I think the confession of error cases are quite different from the perspective of Article 3. No, they are not in agreement about whether to pay the money or not

. They are in agreement about what arguments are, or are correct legal arguments. And I can't think of a case other than the sham cases, which this isn't, where you would find no standing or other obstacle. And I can think of one case which you haven't mentioned, namely Chatta, which seems about identical. Your Honor, I don't think that Chatta is identical with respect in, for two main reasons. In Chatta, the Court was, I think, quite careful to avoid deciding whether the United States had Article 3 standing. It intensively analyzed a statute since repealed 1252, which gave this Court mandatory jurisdiction in cases in which a Federal statute was held unconstitutional and the U.S. was a party. And it framed its analysis of whether the statute permitted the appeal. What I think was, oh, may I reserve my time for a moment? You can finish your sentence. Thank you. What was going on there was the Court said, well, the statute was not the same. You wanted to reach very broadly, perhaps implicit, not stated, perhaps more broadly than Article 3. Congress said, whenever you have this configuration, you go up to the Supreme Court. Then the Supreme Court in Chatta says, of course, in addition to the statute, there must be Article 3 case or controversy. The presence of the congressional interveners here provides it. Thank you, Councillor. That was more than a sentence. Oh, I'm sorry. Sorry, Your Honor. Thank you. Mr. Schrinner-Rosson. Thank you, Mr. Chief Justice, and may it please the Court. This Court has jurisdiction in this case, based on the petition filed by the United States, for the same reasons it had jurisdiction in parallel circumstances in Chatta and Lubbock. There are two issues that have been brought up this morning, and I'd like to address each in turn. One is whether there's a concrete case or controversy, case or controversy, in the sense of adversity in this Court. And the second is the question of whether there's Article 3 standing for the government to bring this case before the Court. On the first one, is there any case where all the parties agreed with the decision below and we upheld the Pellet jurisdiction? Any case? Well, the parties agreed. All the parties agreed with the decision below and we nonetheless upheld the Pellet jurisdiction. Well, you didn't speak to it and love it, Your Honor, but the Court didn't raise it. No, it wasn't raised or addressed, and that had the distinct situation of an appeal, direct appeal, from an Article 1 tribunal. Well, I don't know that that matters because you had a satisfied Article 3 prerequisites to have the case in this Court. Now, Your Honor, of course, correct that the Court didn't affirmatively engage on the issue of jurisdiction, but that is a serious matter. So, putting love at the side since none of this was discussed there. Any case? No. I don't know of one, but this is the only one that's been done. So, all the young back. You're asking us to do something we have never done before to reach the issue in this case. Let me say two things about that if I'm out, Your Honor. First is that it's unusual, but that's not at all surprising, because the ‑‑ Well, it's totally unprecedented in one respect, Your Honor. If you look at Chata, the second one on Mecklenburg, let me make one point of the outset, though, which is that whether it's totally unusual, largely unusual, I grant you that it doesn't happen. But the reason it doesn't happen is because I wouldn't confuse the numerator with the denominator. This set of circumstances just doesn't arise very often. Now, it's true that when this set of ‑‑ It has not arisen very often in the past, because in the past, when I was at the Office of Legal Counsel, there was an opinion of the Office of Legal Counsel, which says that the attorney general will defend the laws of the United States, except in two circumstances, number one, where the basis for the alleged unconstitutionality has to do with presidential powers. When the presidential powers are involved, he's the lawyer for the president, so he can say we think the statute's unconstitutional, I won't defend it. The second situation is where no possible rational argument could be made in defense of it. Now, neither of those situations exist here, and I'm wondering if we're living in this new world where the attorney general can simply decide it's unconstitutional, but it's not so unconstitutional that I'm not willing to enforce it. If we're in this new world, I don't want these cases like this to come before this court all the time, and I think they will come all the time if that's the new regime in the Justice Department that we're dealing with. Justice Glea, one recognized situation in which an act of Congress won't be defended in court is when the President makes a determination that the act is unconstitutional

. That's what happened here. The President made an accountable legal determination that this act of Congress is unconstitutional. But then why does he enforce the statute? Well, that's an option that's available to him, Justice Kennedy. In certain circumstances, it makes sense not to enforce, but I don't think the take care responsibility is an all-or-nothing proposition such that when the President reaches the determination that a statute's unconstitutional, it necessarily follows that he wouldn't enforce it. That's not what happened and love it. Well, let me ask you, suppose that constitutional scholars have graved out about the practice of a President signing a bill but saying that he thinks it's unconstitutional. What do you call it? Signing statements or something like that? It seems to me that if we adopt your position that that would ratify and confirm and encourage that question will practice, because if the President thinks the law is unconstitutional, he shouldn't sign it according to some view. And it's a lot like what you're arguing here. It's very troubling. In the signing statement situation, you're on one example in the past is Turner Broadcasting. In Turner Broadcasting, that was a circumstance in which it was a veto. But in the course of the veto, the President made the determination that a particular aspect of that statute was unconstitutional. And what happened as a result of that is that the Department of Justice didn't defend that aspect of the statute in litigation. Now, Subsequent President reached a contrary conclusion, 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. Why is it 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? The Mr. Chief Justice, I'd hesitate to give you a black and white algorithm. There are several considerations that would factor into it. One of the considerations would be- Excuse me, it's not your view, it's the President. 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? No, of course that's- Or the Solicitor General, is that enough? 28 U.S.C.530D presupposes, Congress presupposes that are going to be occasions in which a statute is not defended because of a conclusion by the Attorney General that it's unconstitutional. Oh, it can be either the Attorney General or the Solicitor General? It could be, but this is a situation in which the President made the determination. And when the President makes that determination, there are a few considerations that I think would factor into the mix in determining whether enforcement will follow. One of them would be the consequences of enforcement for the individuals who are affected. And so, for example, I would assume that if it's a criminal statute that we're talking about, an enforcement would require criminal enforcement against somebody and which would be get criminal sanctions. Oh, and Congress and Axis statute, it cannot be defended. It has no assurance that that statute will be defended in court if the Solicitor General, in his view, thinks it's unconstitutional. There have just a Scalia, there have been occasions in the past. Yes or no? Yes. Yes, it's true. And 28 USC530D exactly presupposes that. That's the exact occasion in which that process is occasion. Congress knew that this would happen. Now, it can happen also when in the rare instance in which the President himself makes that determination. And I don't think that the take care clause responsibility has this all or nothing capacity to it. It can be a conclusion of the decision. Not with the OLC opinion, said by the way. It can be that the President decides to enforce it. That's what happened in Love it and that's the course of events that we saw that have been adopted. But when the government, when the cases are duplicated in the first instance, we're talking here about a pellet authority. Correct. The government sometimes loses cases in the first instance and then it doesn't appeal. Well, it agrees with the result that the Court reached. It doesn't appeal and then the judgment in the first instance where there was adversity is the last word. So when does the government decide, yes, we agree with the adjudication in the Court of First Instance. And so we'll leave it there. And one does it say, yeah, we agree, but we want higher authority to participate. Well, there are a number of considerations that could factor into it, Justice Ginsburg, you write that either of those scenarios is possible. The reason that the government appealed in this case is because the President made the determination that this statute would continue to be enforced

. And that was out of respect for the Congress that enacted the law and the President who signed it and out of respect for the role of the judiciary in saying what the law is. The point of taking an appeal here is that the government suffered an injury because a judgment was entered against the government in the Court of Appeals. That's a classic case for him. I don't know if it should not run out of time on the Black Standing. I know, Miss Lee, we didn't permit Ms. Jackson to address it. So don't run out of time on that. I want, Your Honor, I'll be happy to turn to Black Standing. I would like to make a couple of points on the question of our own standing to bring the petition before the Court. And I think Justice Breyer was right. The key precedent here is Chata. Chata establishes a couple of things. First, Chata establishes that there is agreement in the circumstances of this case. And I don't see what the difference is between agreement for purposes of statutory analysis, that issue in Chata, an injury for purposes of Article 3. How are you briefed? Agreeved means that you are deprived of your legal rights. And you don't think that you've been deprived of your legal rights because your obligations under the Constitution supersede Doma. And you haven't been deprived of anything that you're entitled to under the Constitution. So how are you aggrieved? I guess we'd, I'd subscribe to the agreement analysis that the Court made in Chata at pages 929 to 931 of its opinion. And what the Court said is this, when an agency of the United States is a party to a case in which an act of Congress that administers as a held on constitutional, it is an aggrieved party. The agency's status as an aggrieved party is not altered by the fact that the executive may agree with the holding that the statute in question is unconstitutional. So that description is on all fours with the circumstances of this case. Before you go on to the House Group, could I just clear up something? In your brief, you argue that you are representing all three branches of the government. Is that right? Correct. You're representing the judiciary as you stand before us here today, trying to persuade the Court. You're representing the Court? We represent the sovereign interests of the United States. Of course, in a case like this, we're submitting the dispute to the judiciary for resolution. So in that sense, I'm not going to stand here and tell you that I can dictate that the judiciary comes out in one direction or the other. I certainly would like to be able to do that, but I don't think I can and I'll fairness do that. It seems very strange. So in a criminal case where it's the United States versus Smith appearing before an Article III judge the United States, the prosecutor is representing the Court as well. Well, I think, I guess what I would say is this, the United States, the executive branch represents the sovereign interests of the United States before the Court. It's not, I think, the point of this is that it's not that the executive branch is representing the executive branch alone. The executive branch is representing the sovereign interests of the United States. And those interests would include the interests of the Congress that enacted the law, the interests of the President that signed it, and the interests of the judiciary in pronouncing on what the law is. And the course of action that the President chose to undertake here is in keeping with all of those considerations. Mr. Srinivasan, Chata says what you said it said about what it means to be agreed, but Chata also left open the Article III question. Why did Chata leave it open if it's the same thing? I don't know why Chata didn't engage on it in particular. I think part of it, Justice Kagan, is that the Court didn't have the methodology at that point in time that it does now. I don't know the neatly divided between those questions in the same way. So yes, it left the Article III question open, but I think the question of Article III injury necessarily follows from agreement. And I haven't heard a persuasive argument to the contrary. If we were agreed in the circumstances of Chata, it seems to me necessarily follows that we're injured. We're injured in a couple of ways. That act of Congress has been declared unconstitutional, which Chata itself says constitutes agreement and therefore constitutes injury. In this case, Chata, we're required to suggest that Congress could have standing in Chata. I'm sorry? In Chata, there was an argument that Congress had standing because what was at issue in the case was precisely a prerogative of Congress to exercise the one-houser to House Fido. There wasn't a, there, there, that was an issue in Chata. I don't know that that issue was joined actually, Justice Scalia. The Court did say at page 939 of its opinion that Congress is a proper party to defend the constitutionality of act and a proper petitioner, and I think that's the best language for you on the slide on this issue. So you say we should be concerned about that part of Chata because the issue wasn't joined there? Well, I don't, I don't read that

. But we should take love it as a binding precedent, even though the issue wasn't addressed at all. I didn't, to be fair or as was suggested this morning to be crickets. I, I didn't mean to suggest that love it as binding precedent, Mr. Chief Justice, what I'm saying is love it is a case in which the same scenario as happens here occurred. That's my, that's my problem. All right, let's go to the black issue. So, sure. And the issue wasn't joined. So what do you think we meant? And I suggest to Scalia, it doesn't care what you think we meant. Right. Well, what is your reading of what that means that Congress can? I think that the interbeing in situations in which its interests are injured. Sure. So there are two aspects of Chata that are relevant. I've pages 939 and 940. The second discussion at page 940, I think deals with potential considerations that this court ought to take into account to make sure that it has a sufficient adverse presentation of the competing arguments before it. And that's accounted for by an Amicus type role. And I think that's what the court had in mind in Chata because the two cases that are cited and support to that proposition were both cases in which there was an appointed Amicus. So that, that deals with that aspect of Chata. The other aspect of Chata is the sentence that I alluded to earlier. And I guess I'm not, I'm not going to tell you that, that sentence doesn't bear on the issue at all. But I will say this, what's cited in that sentence is 28 U.S.E. 1254. So I think the point that was directly, directly being made is that the House and Senate were parties for purposes of the statute. And they were parties because they had intervened. And so they have to do with that. So are you accepting the Amicus formulation that somehow the representative has to be of both houses and not just one? No, I guess my point is a little bit different. My point is that this was talking about whether they're a party for statutory purposes under 1254. I don't read this to address the question of Article III standing. On the question of Article III standing, I guess what I would say is this, Chata at most, if it says anything about Article III standing, and I don't know that it does with respect to the House or Senate, at most what it would say was in the unique circumstances of that case where you had a legislative veto that uniquely affected a congressional process. So you take my position and that's- Even that, I don't want to concede. Well, I want to know what you're conceding. I'm conceding that at most. Well, let's, this very case, would, who would ever have standing on behalf of Congress? Anyone are you saying there's never standing? Well, there are two different cases. This case is different because this case doesn't involve the kind of unique congressional prerogative that was issued in Chata. Chata involved a legislative veto. Here, if I could just- This is an infinite percentage. Just thought, thank you, Mr. Chief Justice. Here, I don't think the interest that's being asserted is even in the same plan as the one that was asserted and found deficient in Reigns vs. Bird. Thank you, counsel. Mr. Clement? Thank you, Mr. Chief Justice, may it please the Court. This Court not only addressed the issue of the House's esteemed in Chata, it held that the House is the proper party to defend the Constitutionality of an act of Congress when the executive agency charged with its enforcement agrees with plaintiff that the statute is unconstitutional. Mr. Clement, Chata was somewhat different because there was a unique House prerogative question. But how is this case any different than enforcing the general laws of the United States? There is no unique House power granted by the legislation. Well, it's a law of the United States and the person who defends it generally is the solicitor general

. Sure, generally in less than a two, they stop defending it. Why should the taxpayers have a right to come in and we say they don't? Because the House is very in a very different position in a case like this, end in Chata, from just the general taxpayer. Now, in a case like Chata, for example, you're right. It was the one House veto, if you will, that was at issue, but it'd be a strange, serious prudence that says that the House has standing to come in and defend an unconstitutional one House veto, but it doesn't have standing to come in and defend its core Article I prerogative, which is the past statutes and have those statutes. Well, that assumes the premise. The House didn't know it was unconstitutional. I mean. Well, with all due respect Justice Kennedy, I mean, I think that House- We're talking about X-Anti, that X-Post, what is standing at the outset and the House says this is constitutional? Sure, and there's a presumption that its acts are constitutional, that presumption had real life here, because when Congress was considering this statute, it asked the Justice Department three times whether Domo was constitutional, and three times the Justice Department told them that it was, in fact, constitutional. So I think it's a fair assumption that they at least have standing to have that determination made by the courts. And this Court has held that in the context of State Legislature. So you don't think there's anything to the argument that in Chata, the House had its own unique institutional responsibilities and prerogatives at stake, either one House veto or the legislative veto? Well, I would say too. That's irrelevant. I don't think it's irrelevant. I would say two things. One is, I don't think there was anything particularized about the fact that it was the House that exercised the one House veto, because the Court allowed the Senate to participate as well. And the Senate's interest in that was really just the constitutionality, the legislation, and perhaps the one House veto going forward. But what I would say is, I would continue to resist the premise, which is that the House's prerogatives aren't at stake here. The House is single most important prerogative, which is to pass legislation and to have that legislation, if it's going to be repealed, only be repealed through a process where the House gets to fully participate. What if you disagree with the executive is defending one of your laws, that's the way you insist on viewing it, and you don't like their arguments. You say, in question, they are three. They are not making the best argument. Is that a situation in which you have standing to intervene, to defend the law in a different way than the executive is? No, I would say we would not, Mr. Chief Justice, I would say in that circumstance, the House would have the prerogative, followed me, as briefly if it wanted to. But that's because of sound credential reason, which is when the executive is actually discharging its responsibility, its traditional obligation to defend and act Congress, if Congress comes in as a party, it has the possibility of second guessing the way that they are actually defending it. But if the executive is going to vacate the premises, or in a case like this, not just vacate the premises, but stay in an important attack statute, you don't have that potential concern. And that's part of what I- Well, how about a couple of cases sort of in the middle of the Chief Justice's in this one? So let's say that the Attorney General decides that a particular application of a statute is unconstitutional and decides to give up on that application, or even, let's say, the Attorney General decides that the application of a statute might be unconstitutional, so decides to interpret the statute narrowly in order to avoid that application? Could Congress then come in? Well, I think if it- if it- if it- in a particular case, which is obviously not this case, the executive decides we're not going to defend the statute as a plot, I think in that situation the House could come in. I think as a matter of practice, it probably wouldn't. And it's not like the House and the Senate are very anxious to exercise this progative. In the 30 years since the Chauda decision, there's only been 12 instances in which the exact- in which the House has come in and intervened as a party. And I think it's very important to recognize- Is that- is that included in the course of appeals or justice courts? That includes all courts, but excluding the Doma cases. So from the point of Chauda, until the Doma cases, there were a total of 12 cases where the House intervened as a party. And I do think that particularly in the lower court cases, it's very important to understand that party status is critical. I mean, in this case, it doesn't make a huge difference if you're in a meekest with argument time versus a party. But in the district court, that makes all the difference. Only a party can take deposition. This is what- we've always had the distinction between the public action and the private action. A public action which does not exist under the Federal Constitution is to vindicate the interest in the law being enforced. Now, when the government, state, or federal, in fact, has the interest- a special interest in executing the law, you're given to the President, and they could delegate that interest to Congress if they didn't, which argued that they didn't do here. But to say that any legislature has an interest on his own, without that delegation, to defend the law is to import in that context the public action into the Federal Government. Now, that's- it hasn't been done, I don't think, ever. I can see arguments for and against it, but I can't think of another instance where that's happened. Well, I would- a couple of things, Justice Breyer. I mean, I would point you to the chart, and I realize you can distinguish the chart. You thought it was really different because, of course, there is an interest in the legislature, in defending a procedure of the legislature. Now, that's- that- that isn't tough. But this is because the only interest I can see here is the interest in the law being enforced. And- And- And- And- And- And- And- And- And- And- And- And- And- And- Well, it's understandable, and I mean, obviously, you know, nobody's suggesting, at least in the legislative branch, this is a best practice situation. No, no, but when- Think of another instance where that's happened, where in all the 12 cases or whatever. But what this Court is said, without any special delegation of the power of this date or federal government to execute the law, without any special delegation, a legislator simply has the power, which a private citizen wouldn't have. To bring a lawsuit as a party or a defend as a party, to vindicate the interest in the law being enforced, the law he's voted for. Now, I can imagine arguments on both sides, so I'm asking you only, is there any case you can point me to, which will help? I can point you to a couple of cases that will help, but may not be a complete solution for some of the reasons you built into your question

. The cases I would point to help are Coleman against Miller, are culture against May, and Arizona's for official English. And all of those, I don't think Coleman involved any legislative, legislative authorization, but you can distinguish it, I suppose. But in trying to distinguish it, keep in mind that this Court gave those 20 Senators not just standing to make the argument about the role of the Lieutenant Governor, but also gave them standing to make a separate argument, which is the only one this Court reached, is a divided four to four on the Lieutenant Governor's role. The only issue that the Court reached was this issue about whether prior ratification disabled them, their subsequent legislative action, which is just a way of saying what they did as unconstitutional. So I think Coleman is quite close. Culture, Arizona's against English, there was an authorization. We would say HRES-5 is enough of an authorization for the Court. The Court is not in consideration of extending that right to the House, but the appointment of the Black is strange to me, because it's not in a statute, it's in a House rule. So how does that constitute anything other than a private agreement among some Senators, the House leadership, and where do they derive the right, the statutory right, to take on the power of representing the House in items outside of the House? I know they control the procedures within the House, but it's a very different step than saying that they can decide who or to create standing in some way, for dendular otherwise, or to go through your otherwise. Well, Justice Sotomayor, I can put you to two places. One is the House rules that are pursuant to the rulemaking authority and approved by the institution, and they're approved in every Congress, rule 2.2. What other House rule creates the power of the majority leaders to represent the House outside of the functions of the House? I'm not sure there is another one, but that's the sole purpose of rule 2.8. It creates offices in general. This would be, I think, sort of unheard of, that- I don't think so, Justice Sotomayor. That's the same authority that gave the House, you know, essentially a predecessor to it, to the same authority that had the House appear in litigation ever since Chauda, and Chauda there was a vote that authorized it specifically, but we have that here in H-Res 5, which is the second place- We don't even have a vote here. We do. We have to have a vote in H-Res 5, beginning of this Congress in January, the House passed a resolution that passed that authorized the Black to continue to represent the interest of the House in this particular litigation. So I think if there was a question before H-Res 5, there shouldn't be now. I'd like- Under your view, would the Senate have the right to have standing to take the other side of this case, so we have the House on one side of the Senate on the other? No, Justice Kennedy, they wouldn't have the standing to be on the other side of this case. They would have to be on the same side of this case. And I think that's what essentially you have had happened. Well, why not? It's concerned about the argument, and you say as a House of Representatives standing alone can come into the court, why can't the Senate stand alone coming to court, intervening on the other side? Because it wouldn't have the authority to do so under Chauda. What Chauda makes the critical flipping of the switch that gives the House the ability to intervene as a party is that the executive branch declines to defend the statute. So if the Senate wants to come in and basically take chair argument time or something as an amicus, they can. But there's no need for them to participate as a party. And I would want to emphasize that in the lower courts, participation by a party is absolutely critical. It doesn't make sense to have the party that wants to see the statute invalidated, being charged with litigation in the district courts, because whether the statute is going to be invalidated is going to depend on what kind of record there is in the district court. It would be one thing, Justice Scalia, of all that happened as they entered consent judgment. I suppose then the thing would end, and then in the long run, the executive would be forced to do their job and actually defend these statutes. Why is it not going to happen? And why is it sufficient for one House to take a position that the statute is constitutional? The enactment of legislation requires both houses and usually the signature of the President. Justice Lido, I think it makes perfect sense in this context, because each individual House has a constitutional role before a statute is repealed. And so, yeah, it takes two of them to make the law, but each of theirs participation is necessary to repeal a law. So if the executive wants to go into court and effectively seek the judicial repeal of a law, it makes sense that one House can essentially vindicate its role in our constitutional scheme by saying, wait a minute, we passed that law, it can't be repealed without our participation. Well, if a law is passed by a bare majority of one of the houses, then each member of that house, who was part of the majority, has the same interest in defending its constitutionality. I don't think that's right after Reigns, Justice Lido, and Reigns, this court, carefully distinguished between the situation of an individual legislator and the situation of one of the houses as a whole. And it specifically said, this might be a different case if we had that kind of vote. And that's what you have here, that's what you had in Chatta. And again, I do think that, I mean, the only alternatives here are really to say that the executive absolutely must enforce these laws, and if they don't, I mean, because after all, I really don't understand why it's, if they're not going to, if they've made a determination that the law is unconstitutional, why it makes any sense for them to continue to enforce the law, and people put executive off the position of doing something that the president has determined is unconstitutional. I mean, think about the qualified immunity implications of that for a minute. So that's problematic enough, but if they're going to be able to do that and get anything more than a consent judgment, then the house is going to have to be able to play its role, and it's going to have to play the role of a party, and Amicus just doesn't get it done. And I really think in a sense, the executive gives the game away by conceding that our participation as an Amicus here is necessary to solve what would otherwise be a glaring adversities problem. Because once you recognize that we can participate as an Amicus, you've essentially recognized that there's nothing inherently executive about coming in and defending the constitutionality of an act of Congress, or more to the point, there's nothing inherently unlegislative about coming in and making arguments and defense of the statute. And if that's critical, absolutely necessary to ensure there's an adverse presentation of the issues, well, there's no reason the house should have to do that with one hand tied behind its back. If its participation is necessary, it should participate as a full party. And as I say, that's critically important in the lower courts, so that they can take the positions, build a factual record, and allow for a meaningful defense of the statute. Because the alternative really puts the executive branch in an impossible position, it's a conflict of interest. They're the ones that are making litigation decisions to promote the defense of the statute they want to see invalidate. And if you want to see the problems with their position, look at Joint Appendix page 437. You will see the most anomalous motion to dismiss in the history of litigation

. A motion to dismiss filed by the United States, asking the district court not to dismiss the case. I mean, that's what you get under their view of the world, and that doesn't serve as separation. That does give you intellectual whiplash, I'm going to have to think about that. It does, it does. And then, you know, and the last thing I'll say is, we saw in this case certain appeals were expedited, certain appeals weren't. They did not serve the interest of defending the statute. They served the distinct interest of the executive. Thank you. Council, Ms. Jackson, you have four minutes remaining. Thank you, Your Honor. I have five points. I'll try to get to just very quickly Justice Breyer. I only answered part of a question you asked me earlier, and I just want to say the U.S. is asking this court to tell it to pay money. It's not asking for relief. Just a so-to-my-your-you asked me about how the issue could come up otherwise. I don't think I had a chance to mention private party litigation, employees against employers. There's an inter-pleter action right now pending that was cited in the brief of the 287 employers on page 32 at note 54. Giving examples of how the issue of domic constitutionality could arise in private litigation. In addition, state and local government employees might have, for example, FMLA claims in which the issue could arise. So I think that there are a number of ways in which the issue could arise. On the question of what the purpose of 1252 could be if it wasn't to coincide with Article III injury that was raised by my friend in his argument, I wonder whether the court in Chatta wasn't saying something like this. 1252 was Congress's wish list. It was like a citizen's suit provision to be exercised only to the extent that Article III power was there. That's a way to make sense out of what the court is doing in the text and footnote there. As to the question of Black, which has been very fully discussed already, I do want to say that after the fact authorization seems to be quite troubling and inconsistent with this court's approach in some Reverearth Institute and in the, I think it was in the plurality in Luhan, where you, if a party has standing, they need to have it in the first court that they're in, either when it starts or certainly before judgment. And the rule as Justice Sotomayor observed just doesn't seem to say anything about authority to litigate. I think that in addition, the big problem here is the injury being complied of is inconsistent with the separation of powers. Bowser and Buck, we make very clear that once the litigation is enacted, Congress's authority to supervise it is at an end. It goes over to the executive branch. And whether the executive branch does it well or badly in the view of Congress, it's in its domain. And separation of powers will not be meaningful if all it means is the Congress has to stay out unless it thinks that the president is doing it badly. So I think Article 2 helps give shape to what kinds of injuries alleged by parts of Congress can be cognizable. Finally, the two or three cases cited by my colleague, who last spoke Coleman, Carcher, and Arizona, all involved state level government, where the federal separation of powers doctrines articulated in cases like Bowser and Buckley were not at issue. Unless there are other questions, I will sit down. What could I ask you this question on the question of the House resolution? If one of the House's passes a resolution saying that a particular group was always authorized to represent us, do you think it's consistent with the separation of powers for us to examine what we're doing? Whether that's a correct interpretation of the rules of that House of Congress? Yes, I do your honor, because that resolution is not something operating only internally within the House. It is having effect in the world of the Article 3 courts, which this Court in preceding the fair rule meant notwithstanding the great respect given to the Senate's interpretation of this Court could reach and did reach an alternative interpretation of the meaning of the Senate rules. And I would urge this Court to do that. As long as you have a minute, what did you think of Mr. Clement's argument this way, that the execution and the execute laws is in Article 2, but where the President does not in a particular law? Under those circumstances, a member of the legislature appropriately authorized House, the constitutional power, a power that is different than the average person being interested in seeing that the law is carrying out. Well, they can represent the power to vindicate the interest in seeing that the law is executed. And that's a special interest, existing only when the executive declines to do so. Your honor, I think that when the executive declines to do so, it is exercising its take care clause authority. The take care clause says that the executive shall take care that the laws be faithfully executed. I think the laws include the Constitution. So I don't think the distinction offered by my colleague is appropriate. I think it would result in a significant incursion on the separation of powers between the legislature and the executive branch and would bring this, the Federal courts, into more controversies that have characteristics of inter-branch confrontation in which this Court has traditionally been very cautious. Ms. Jackson, before you sit down, I would like to note that you briefed and argued this case as Amika's Curiee at the invitation of the Court, and you have ably discharged your responsibility for which you have the gratitude of the Court

. Thank you. Thank you. We'll now take a very short break and turn to the merits. Please, ladies and gentlemen. I meant that we would take a break, not the, we'll continue argument in the case on the merits. Mr. Clement. Mr. Chief Justice and may have pleased the Court. The issue of same-sex marriage certainly implicates profound and deeply held views on both sides of the issue. But the legal question on the merits before this Court is actually quite narrow. On the assumption that states have the constitutional option, either to define marriage in traditional terms, or to recognize same-sex marriages, or to adopt a compromise like civil unions, does the federal government have the same flexibility or must the federal government simply borrow the terms in state law? I would submit the basic principles of federalism suggests that as long as the federal government defines those terms solely for purposes of federal law, that the federal government has the choice to adopt a constitutionally permissible definition or to borrow the terms of the statute. Mr. Clement, the problem is that it would totally thwart the state's decision that there is a marriage between two people for the federal government then to come in and 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's set of attributes, one might well ask, what kind of marriage is this? And I think the answer to that, Justice Ginsburg, would be to say that that's a marriage under state law. And I think this Court's case is 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. And that's been true certainly in a number of situations under a number of statutes, so it's simply not the case that as long as you're married under state law, you absolutely are going to be treated as a matter of the state. How about the worse? Same thing. It's going to have a federal notion of divorce and it doesn't relate to what the state statute is. Well, we've never had that, Your Honor, and I think that there is a difference when it comes to divorce because with divorce uniquely, you could have the possibility that somebody's married to two different people for purposes of state law and federal law. But with the basic question of even whether to recognize the marriage or probably the best way to put it is just whether the federal law treats you as married for a particular purpose or not, there are always had been differences between the federal law treatment and the state law treatment, the federal treatment for example recognizes common law marriages in all states, whereas a lot of states don't recognize common law marriages, but federal law recognizes that for some purposes. The Social Security Act, I think it's a page four of our brief. And so only if the state recognizes it. No, I don't think that's true for purposes of that. There's a common law, federal, common law definition. That's my understanding. And as the best. I thought it was reversed that if the state law recognizes common law marriages, the federal. My understanding is that the federal law recognizes in the Social Security context, even if it doesn't. And in all events, there are other situations, immigration, contacts, tax consequences for tax consequences. If you get a divorce every December, you know, for tax consequences, the state may well recognize that divorce. The federal government has long said, look, we're not going to allow you to get a divorce every December just to get remarried in January, so you have a filing status that works for you that's more favorable to you. So the federal government has always created this somewhat distinctly. It always has its own efforts. And I do think for purposes of the federalism issue, it really matters that all DOMA does is take this term where it appears in federal law and define it for purposes of federal law. It would obviously be a radically different case if Congress had in 1996 decided to try to stop states from defining marriage in a particular way or dictate how they would decide it in that way. Suppose we have a applies to over what, 1100 federal laws, I think we were saying so it's not. I think there's quite a bit to your argument that if it's a tax deduction case, which is specific, whether or not, if Congress has the power, it can exercise it for the reason that it wants, like some marriage, it doesn't like, I suppose it can do that. But when it has 1100 laws, which in our society, it means that the federal government is intertwined with the citizens' day-to-day life, you are 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. Well, just to the Kennedy two points, first of all, the very fact that there are 1100 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 context where there's an independent federal power that supported that. Now, the second thing is the fact that DOMA affects all 1100 statutes at once is not really a sign of its irrationality. It's a sign that what it is, and all it is 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 1997. Well, but it's not really uniformity because it regulates only one aspect of marriage. It doesn't regulate all of marriage. Well, that's true, but I don't think that's a mark against it, for federalism purposes, and it addressed a particular issue at a point. Remember, in 1996, Congress is addressing this issue because they are thinking that state of a why through its judicial action is about to change the definition of marriage from a way that it had been defined in every jurisdiction in the United States. And what that meant is that when Congress passed every one of the statutes affected by DOMA's definition, the Congress that was passing that statute had in mind the traditional definition

. And so Congress in 1996, at that point, says, the states are about to experiment with changing this. But the one thing we know is all these federal statutes were passed with the traditional definition in mind. And if rational basis is the test, it has to be rational for Congress, then, to say, well, we're going to reaffirm what this word has always meant for purposes of federal law. Suppose we look just at the estate tax provision that's at issue in this case, which provides especially 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? 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 provide uniform treatment of taxpayers across jurisdiction. And if you look at the brief that Senator Hatson and some other senators filed, they discussed this history. Because what was happening in 1948 when this provision was initially put into the 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 if you were in a common law state. And Congress didn't want to have an artificial incentive for states to move from common law to community property, and it wanted to treat citizens the same way, no matter what state they were in, so that said, will give a uniform federal deduction based on marriage. And I think what that shows is that when the federal government gets involved in the issue of marriage, it has a particularly cute interest in uniform treatment of people across state loans. So Ms. Windsor wants to point to the unfairness of the differential treatment of treating two New York married couples different. And of course, for purposes of New York law, that's exactly the right focus. But for purposes of federal law, it's much more rational for Congress to say, certainly a rational available choice for Congress to say, we want to treat the same sex couple in New York, the same way as the committed same sex couple in Oklahoma and treat them the same. Or even more to the point for purposes of the same. But that's begging the question, because you're treating the married couples differently. Well, you're saying that New York's married couples are different than Nebraska's? But the only way that out of a hat is there's a difference. The only way they're different is because of the way that state law treats them. And just to be clear how, you know, what this case is about and how sort of anomalous the treatment, the differential treatment of two states is, this is not a case that's based on a marriage license issued directly by the State of New York after 2011 when New York recognized same sex marriage. This is the status of Ms. Windsor as married depends on New York's recognition of an Ontario marriage certificate issued in 2007. Now, if you'd say it would be the same thing if the State passed a law, a Congress passes a law which says, well, there are some states they all used to require 18 as the age of consent. Now, a lot of them have gone to 17. So if you're 17 when you get married, then no tax deduction, no medical, no nothing. Or some state TETA residents require them to be years. Some have six months, some have four months, so Congress passes a law, says, well, unless you're there for a year, no medical deduction, no tax thing, no benefits of any kind, that that would be perfectly constitution. Wouldn't be arbitrary, wouldn't be random, wouldn't be capricious. Well, I guess I would say two things. I would say that the first question would be what's the relevant level of scrutiny, and I assume the level of scrutiny for the things that happen. No, I just want your bottom line. The bottom line here is we can imagine, you know, I can make them up all day. So can you? The difference is between states have nothing to do with anything. You know, residents requirements, they have a medical exam, we can think of them all day, with how old you are, and Congress just passes a law, which takes about, let's say, 30% of the people who are married in the United States and says, no tax deduction, no this, no that, no medical benefits, none of these good things, none of them, for about 20, 30% of all of them are married people. Could I do that? Again, I think the right way to analyze it would be, you know, is there any distinction drawn that implicates what level of scrutiny is implicated? If the level of scrutiny is rational basis, then my answer to you would be yes. They can do that. I mean, we have to talk about what the rational basis. No, there isn't any. I'm trying to think of examples where I just can't imagine what it is. Well, I think the uniform of the treatment of individuals. All right, so you're saying uniform treatment is good enough, no matter how odd it is, no matter how irrational. There is nothing but uniformity. We could take the, no matter, you see what I'm going? No, it's exactly where you're going, Justice Breyer. And obviously, every one of those cases would have to be decided on its own, but I do think there is a powerful interest when the Federal Government classifies the White House. There's a powerful interest in treatment. But once, the first part, every one of those cases has to be decided on its own. Okay? Now, what's special or on its own that distinguishes and thus makes rational or whatever basis you're going to have here, treating the gay marriage differently? Well, again, if we're, if we're coming at this from the premise that the States have the option to choose, and then we come at this from the perspective, the Congress is passing this, not in the vacuum, they're passing this in 1996. And what they're confronting in 1996 is the prospect that one state, through its judiciary, will adopt the same-sex marriage. And then, by operation of the full faith and credit law, that will apply to any, any couple that wants to go there. And the state that's thinking about doing this is who I, is a very nice place to go and get married. And so, Congress's word, people are going to go there, go back to their home jurisdictions, insist on the recognition in their home jurisdictions of their same-sex marriage in who I, and then the Federal Government will borrow that definition. And therefore, by the operation of one state's state judiciary, same-sex marriage is basically going to be decided to be recognized throughout the country. And what Congress says is, wait a minute, let's take a time out here. This is a redefinition of an age-old institution. Let's take a more cautious approach where every sovereign gets to do this for themselves. And so, Section 2 of DOMA says we're going to make sure that, on full faith and credit principles, that a decision of one state- is sort of going in a circle. You're saying, you're saying, we can create the special category, men and women, because the states have an interest and traditional marriage that they're trying to protect. How do you get the Federal Government to have the right to create categories of that type based on an interest that's not there, but based on an interest that belongs to the states? Well, at least two responses to that, Justice Sotomayor. First is that one interest that supports the Federal Government's definition of this term is whatever Federal interest justifies the underlying statute in which it appears. So in every one of these statutes that are affected by assumption, there's some Article 1 section. So the word- they can create a class they don't like here or most actuals, or a class that they consider is suspect in the marriage category, and they can create that class and decide benefits on that basis. When they themselves have the new interest in the actual institution of marriage as marriage, the states control that. Just to clarify, Justice Sotomayor, I'm not suggesting that the Federal Government has any special authority to recognize traditional marriage. So if the assumption is that nobody can do it, if the states can't do it either, then the Federal Government can't do it. So the Federal Government- I'm assuming a state- So then I assume the states can. So what- Then what it creates to run a Federal Government has sort of two sets of authorities that give it sort of a legitimate interest to wait into this debate. Now one is whatever authority gives rise to the underlying statute. The second and complementary authority is that, you know, the Federal Government recognizes that it's a big player in the world, that it has a lot of programs that might give states and Senives to change the rules one way or another. And the best way- One way to stay out of the debate, let just the states develop this, and let the Democratic process deal with this, is to just say, look, we're going to stick with what we've always had, which is traditional definition. We're not going to create a regime that gives people an incentive and point to Federal law and say, well, another reason you should have same-sex marriage is then you'll get a state tax deduction. They just stayed out of it. But I see an illogic in your argument. I hadn't thought of the relation between Section 2 and Section 3 in a way you just said. You said, when that Section 2 was in order to help the states, the Congress wanted to help states. But then Section 3, the Congress doesn't help the states, which have come to the conclusion that gay marriage is lawful. So that's inconsistent. No, no, they treat them- Which is to say they are preserving, they're helping the states in the sense of having each sovereign make this decision to come out. We're helping the states do if they do what we want them to, which is not consistent with the historic commitment of marriage and of questions of the rights of children to the state. With respect to Justice Glennady, 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 that get additional federal benefits. But things stay the same. And that's why- It's 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 task question. It's, as Justice Kennedy said, 1100 statutes and it affects every area of life. And so you would really diminishing what the state has said is marriage. You're saying, no state, there are two kinds of marriages, the full marriage and then the sort of skimmed milk marriage. With respect, Justice Ginsburg, that's not what the federal government is saying. The federal government is saying that within its own realm and 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. Mr. President, 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 suggests the following, which suggests 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 think that's 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. A couple of responses, Justice Kagan. First of all, I think I would take issue with premise. First of all, that this is such an unusual federal involvement on an issue like marriage. Look at historically, not only has the federal government defined marriage for its own purposes distinctly in the context of particular programs

. And what Congress says is, wait a minute, let's take a time out here. This is a redefinition of an age-old institution. Let's take a more cautious approach where every sovereign gets to do this for themselves. And so, Section 2 of DOMA says we're going to make sure that, on full faith and credit principles, that a decision of one state- is sort of going in a circle. You're saying, you're saying, we can create the special category, men and women, because the states have an interest and traditional marriage that they're trying to protect. How do you get the Federal Government to have the right to create categories of that type based on an interest that's not there, but based on an interest that belongs to the states? Well, at least two responses to that, Justice Sotomayor. First is that one interest that supports the Federal Government's definition of this term is whatever Federal interest justifies the underlying statute in which it appears. So in every one of these statutes that are affected by assumption, there's some Article 1 section. So the word- they can create a class they don't like here or most actuals, or a class that they consider is suspect in the marriage category, and they can create that class and decide benefits on that basis. When they themselves have the new interest in the actual institution of marriage as marriage, the states control that. Just to clarify, Justice Sotomayor, I'm not suggesting that the Federal Government has any special authority to recognize traditional marriage. So if the assumption is that nobody can do it, if the states can't do it either, then the Federal Government can't do it. So the Federal Government- I'm assuming a state- So then I assume the states can. So what- Then what it creates to run a Federal Government has sort of two sets of authorities that give it sort of a legitimate interest to wait into this debate. Now one is whatever authority gives rise to the underlying statute. The second and complementary authority is that, you know, the Federal Government recognizes that it's a big player in the world, that it has a lot of programs that might give states and Senives to change the rules one way or another. And the best way- One way to stay out of the debate, let just the states develop this, and let the Democratic process deal with this, is to just say, look, we're going to stick with what we've always had, which is traditional definition. We're not going to create a regime that gives people an incentive and point to Federal law and say, well, another reason you should have same-sex marriage is then you'll get a state tax deduction. They just stayed out of it. But I see an illogic in your argument. I hadn't thought of the relation between Section 2 and Section 3 in a way you just said. You said, when that Section 2 was in order to help the states, the Congress wanted to help states. But then Section 3, the Congress doesn't help the states, which have come to the conclusion that gay marriage is lawful. So that's inconsistent. No, no, they treat them- Which is to say they are preserving, they're helping the states in the sense of having each sovereign make this decision to come out. We're helping the states do if they do what we want them to, which is not consistent with the historic commitment of marriage and of questions of the rights of children to the state. With respect to Justice Glennady, 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 that get additional federal benefits. But things stay the same. And that's why- It's 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 task question. It's, as Justice Kennedy said, 1100 statutes and it affects every area of life. And so you would really diminishing what the state has said is marriage. You're saying, no state, there are two kinds of marriages, the full marriage and then the sort of skimmed milk marriage. With respect, Justice Ginsburg, that's not what the federal government is saying. The federal government is saying that within its own realm and 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. Mr. President, 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 suggests the following, which suggests 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 think that's 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. A couple of responses, Justice Kagan. First of all, I think I would take issue with premise. First of all, that this is such an unusual federal involvement on an issue like marriage. Look at historically, not only has the federal government defined marriage for its own purposes distinctly in the context of particular programs. It's also intervened in other areas, including in state paragogatives. I mean, there's a reason that four state constitutions include prohibition to the regime. It's because the federal Congress insisted on them. There's a reason that, in the wake of the Civil War and in reconstruction, Congress specifically wanted to provide benefits for spouses of freed slaves who fought for the use of it. In order to do it, it essentially had to create state law marriages. Because in the Confederacy, the slaves couldn't get married. So they developed their own state essentially, a federal sort of condition to define who was married under those laws. So where there are the needs in the past to get involved, the federal government has gotten involved. The other point I would make, but I also eventually want to get around to the animus point. But the other point I would make is, when you look at Congress doing something that is unusual, the deviates from the way they've proceeded in the past, you have to ask, well, what's there a good reason? And in a sense, you have to understand that in 1996, something's happening that is, in a sense, forcing Congress to choose between its historic practice of deferring to the States and its historic practice of preferring uniformity. 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. It's as fine. We can defer. Okay, 1996. 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? Is 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's never been your approach, especially under rational basis or even rational basis plus, if that's what you're suggesting. This Court, even when it's applying more heightened scrutiny, the O'Brien-based we cite. It suggests, look, we're not going to strike down a statute just because a couple of legislatures may have had an improper motive. We're going to look at an under rational basis. We look as there any rational basis for the statute. And so, sure, the House report says some things that 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. And in a situation where an unelected state judiciary in Hawaii is on the verge of deciding this highly contentious, highly divisive issue for everyone, for the states, for the other states, and for the federal government by borrowers principles, it makes sense. Well, but your statute applies also to states where the voters have decided it. That's true, but again, I don't know that that fact alone makes it irrational, and I suppose if that's what you think, but- Well, just to be clear, I think your answer is fair on rationality. We switch now from federal power to rationality. There is a difference. We're talking, I think we're assuming now that there's federal power and asking about the degree of scrutiny that applies to it. Or are we going back to whether there's a federal power? Well, I think there is a federal power because DOMA doesn't define any term that appears anywhere other than in a federal statute that we assume that there's federal power for, and if there's not federal power for the statutes in which these terms appear, that's a problem independent of DOMA, but it's not a DOMA problem. So I'll assume we have federal power. I think it is a DOMA problem. The question is whether or not the federal government under federalism scheme has the authority to regulate merits. And it doesn't have the authority to regulate marriages as such, but that's not what DOMA does. DOMA provides certain- DOMA defines a term as it appears in federal statutes. Many of those federal statutes provide benefits. Some of those federal statutes provide burdens. Some of those federal statutes provide disclosure obligations. It appears in lots of places. Congress could have achieved exactly what it achieved under Section 3 by exercising the term married from the United States Code, and replacing it with something more neutral. It could have said certified domestic units, and then defined this in exactly the way that Section 3, exactly the way DOMA defines marriage. Would that make a difference? In that instance, the federal government wouldn't be purporting to say who's married and who's not married, it would be saying who is entitled to various federal benefits and burdens based on a federal definition. That would make no difference, Justice Alito. It does, the hypothetical, helpfully demonstrates, though, that when the federal government is defining this term as it appears in the federal code, it is not regulating marriage as such, and it is important to recognize that people that are married in their state based on either the legislative acts or by judicial recognition remain married for purposes of state law. You started by, I think, agreeing, maybe not, that uniformity in and of itself with nothing else is a lot likely to prove sufficient, at least if it's rational basis plus. And why? Because we can think of weird categories that are uniform. So you say, look at it on the merits. Now, that's where you're beginning to get

. It's also intervened in other areas, including in state paragogatives. I mean, there's a reason that four state constitutions include prohibition to the regime. It's because the federal Congress insisted on them. There's a reason that, in the wake of the Civil War and in reconstruction, Congress specifically wanted to provide benefits for spouses of freed slaves who fought for the use of it. In order to do it, it essentially had to create state law marriages. Because in the Confederacy, the slaves couldn't get married. So they developed their own state essentially, a federal sort of condition to define who was married under those laws. So where there are the needs in the past to get involved, the federal government has gotten involved. The other point I would make, but I also eventually want to get around to the animus point. But the other point I would make is, when you look at Congress doing something that is unusual, the deviates from the way they've proceeded in the past, you have to ask, well, what's there a good reason? And in a sense, you have to understand that in 1996, something's happening that is, in a sense, forcing Congress to choose between its historic practice of deferring to the States and its historic practice of preferring uniformity. 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. It's as fine. We can defer. Okay, 1996. 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? Is 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's never been your approach, especially under rational basis or even rational basis plus, if that's what you're suggesting. This Court, even when it's applying more heightened scrutiny, the O'Brien-based we cite. It suggests, look, we're not going to strike down a statute just because a couple of legislatures may have had an improper motive. We're going to look at an under rational basis. We look as there any rational basis for the statute. And so, sure, the House report says some things that 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. And in a situation where an unelected state judiciary in Hawaii is on the verge of deciding this highly contentious, highly divisive issue for everyone, for the states, for the other states, and for the federal government by borrowers principles, it makes sense. Well, but your statute applies also to states where the voters have decided it. That's true, but again, I don't know that that fact alone makes it irrational, and I suppose if that's what you think, but- Well, just to be clear, I think your answer is fair on rationality. We switch now from federal power to rationality. There is a difference. We're talking, I think we're assuming now that there's federal power and asking about the degree of scrutiny that applies to it. Or are we going back to whether there's a federal power? Well, I think there is a federal power because DOMA doesn't define any term that appears anywhere other than in a federal statute that we assume that there's federal power for, and if there's not federal power for the statutes in which these terms appear, that's a problem independent of DOMA, but it's not a DOMA problem. So I'll assume we have federal power. I think it is a DOMA problem. The question is whether or not the federal government under federalism scheme has the authority to regulate merits. And it doesn't have the authority to regulate marriages as such, but that's not what DOMA does. DOMA provides certain- DOMA defines a term as it appears in federal statutes. Many of those federal statutes provide benefits. Some of those federal statutes provide burdens. Some of those federal statutes provide disclosure obligations. It appears in lots of places. Congress could have achieved exactly what it achieved under Section 3 by exercising the term married from the United States Code, and replacing it with something more neutral. It could have said certified domestic units, and then defined this in exactly the way that Section 3, exactly the way DOMA defines marriage. Would that make a difference? In that instance, the federal government wouldn't be purporting to say who's married and who's not married, it would be saying who is entitled to various federal benefits and burdens based on a federal definition. That would make no difference, Justice Alito. It does, the hypothetical, helpfully demonstrates, though, that when the federal government is defining this term as it appears in the federal code, it is not regulating marriage as such, and it is important to recognize that people that are married in their state based on either the legislative acts or by judicial recognition remain married for purposes of state law. You started by, I think, agreeing, maybe not, that uniformity in and of itself with nothing else is a lot likely to prove sufficient, at least if it's rational basis plus. And why? Because we can think of weird categories that are uniform. So you say, look at it on the merits. Now, that's where you're beginning to get. And so far what I've heard is, well, looking at it on the merits, there's certainly a lot of harms. And on the plus side, what there is is one, we don't want courts deciding this. But of course, as was just pointed out, in some states it's not courts, it's the voters. And then you say, ah, but we want to, there are too many courts deciding it. Now, is too many courts might decide it? Now, what else is there? What else? I want to be able to have a list, you know, really specific things that you are saying justify this particular effort to achieve uniformity. And I want to be sure I'm not missing any. So far I've got those two I mentioned. What else? I didn't understand that courts were so central to your position. I thought you didn't want the voters in one state to dictate to other states. Any more than you would want the courts in one state to dictate to other states. Well, I think that's true, Justice Scalia. The point about courts, though, is, I mean, it's particularly relevant here. I mean, of course, the courts, they do dictate in respect of time, they would dictate in respect of age, they dictate in all respect to all kinds of things. And what I'm looking for is what, in your opinion, is special about this homosexual marriage that would justify this other than this kind of pure uniformity. Well, if there is such a thing. Let me just get on record that to take issue with one of the premises of this, which is where it's somehow rational basis plus land, because I would suggest strongly that three levels of scrutiny are enough. But in all events, if you're thinking about the justifications that defend this statute, that justify the statute, they're obviously in the brief. But it's uniformity, but it's not just the Congress picked this, you know, we need a uniform term. Let's pick something out of the air. They picked the traditional definition that they knew reflected the underlying judgments of every federal statute on the books at that point. They knew it was the definition that had been tried in every jurisdiction in the United States and hadn't been tried anywhere until 2004. And then, of course, it was, as they correctly predicted, a judicial decision. And in this context, in particular, they're thinking about an individual, I mean, this couple goes to Ontario, they get a married certificate. A couple could have, from Oklahoma, could have gotten, gone to Ontario, and got a married certificate. The same day, and gone back to Oklahoma. And from the federal law perspective, there is, it's certainly a rational basis in treating those two couples the same way. I'm a reserve of my time. Thank you, Mr. Comet. General Verily? Mr. Chief Justice, and may it please the Court. 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 a line of duty cannot receive the dignity and solace of an official notification of next of kin. I suppose 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? We think that wouldn't raise an equal protection problem like this statute does, Mr. Chief Justice. My point is, you don't think it would raise a federalism problem, either, do you? I don't think it would raise a federalism problem. But the key for the, for the, our purposes is that in addition to denying these fundamental important, fundamentally important benefits is who they're being denied too. So just to be clear, you don't think there's a federalism problem with what Congress has done in DOMA? No, we don't, Mr. Chief Justice. The question is, what is the constitutionality for equal protection purposes? And because it's unconstitutional and it's embedded into numerous federal statutes, those statutes will have an unconstitutional effect. But it's the equal protection violation from the perspective of the United States. You think Congress can use its powers to supersede the traditional authority and prerogative of the state's to regulate marriage in all respect. Congress can have a uniform definition of marriage that includes age, a kind of thing, winety, et cetera, et cetera. No, I'm not saying that, Your Honor. I think if Congress passed such a statute, then we'd have to consider how to defend it. Well, that's not. But then there is a federalism interest at stake, you know

. And so far what I've heard is, well, looking at it on the merits, there's certainly a lot of harms. And on the plus side, what there is is one, we don't want courts deciding this. But of course, as was just pointed out, in some states it's not courts, it's the voters. And then you say, ah, but we want to, there are too many courts deciding it. Now, is too many courts might decide it? Now, what else is there? What else? I want to be able to have a list, you know, really specific things that you are saying justify this particular effort to achieve uniformity. And I want to be sure I'm not missing any. So far I've got those two I mentioned. What else? I didn't understand that courts were so central to your position. I thought you didn't want the voters in one state to dictate to other states. Any more than you would want the courts in one state to dictate to other states. Well, I think that's true, Justice Scalia. The point about courts, though, is, I mean, it's particularly relevant here. I mean, of course, the courts, they do dictate in respect of time, they would dictate in respect of age, they dictate in all respect to all kinds of things. And what I'm looking for is what, in your opinion, is special about this homosexual marriage that would justify this other than this kind of pure uniformity. Well, if there is such a thing. Let me just get on record that to take issue with one of the premises of this, which is where it's somehow rational basis plus land, because I would suggest strongly that three levels of scrutiny are enough. But in all events, if you're thinking about the justifications that defend this statute, that justify the statute, they're obviously in the brief. But it's uniformity, but it's not just the Congress picked this, you know, we need a uniform term. Let's pick something out of the air. They picked the traditional definition that they knew reflected the underlying judgments of every federal statute on the books at that point. They knew it was the definition that had been tried in every jurisdiction in the United States and hadn't been tried anywhere until 2004. And then, of course, it was, as they correctly predicted, a judicial decision. And in this context, in particular, they're thinking about an individual, I mean, this couple goes to Ontario, they get a married certificate. A couple could have, from Oklahoma, could have gotten, gone to Ontario, and got a married certificate. The same day, and gone back to Oklahoma. And from the federal law perspective, there is, it's certainly a rational basis in treating those two couples the same way. I'm a reserve of my time. Thank you, Mr. Comet. General Verily? Mr. Chief Justice, and may it please the Court. 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 a line of duty cannot receive the dignity and solace of an official notification of next of kin. I suppose 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? We think that wouldn't raise an equal protection problem like this statute does, Mr. Chief Justice. My point is, you don't think it would raise a federalism problem, either, do you? I don't think it would raise a federalism problem. But the key for the, for the, our purposes is that in addition to denying these fundamental important, fundamentally important benefits is who they're being denied too. So just to be clear, you don't think there's a federalism problem with what Congress has done in DOMA? No, we don't, Mr. Chief Justice. The question is, what is the constitutionality for equal protection purposes? And because it's unconstitutional and it's embedded into numerous federal statutes, those statutes will have an unconstitutional effect. But it's the equal protection violation from the perspective of the United States. You think Congress can use its powers to supersede the traditional authority and prerogative of the state's to regulate marriage in all respect. Congress can have a uniform definition of marriage that includes age, a kind of thing, winety, et cetera, et cetera. No, I'm not saying that, Your Honor. I think if Congress passed such a statute, then we'd have to consider how to defend it. Well, that's not. But then there is a federalism interest at stake, you know. But what you told the Chief Justice, there was not. Well, with respect to Section 3 of DOMA, the problem is an equal protection problem from the point of view of the United States. Yes, but General, surely the question of what the Federal interests are and whether those Federal interests should take account of the historic state prerogatives in this area is relevant to the equal protection inquiry. It's central to the inquiry, Justice Kagan. I completely agree with that point. And it would be central to the inquiry of Congress went the other way, too. Well, the difference is what Section 3 does is impose this exclusion from Federal benefits on a class that has undeniably been subject to a history of terrible discrimination on the basis of the Federal. I understand that. That's your equal protection argument. It's not very responsive to my concern that I'm trying to get an answer to. You don't think federalism concerns come into play at all in this, right? Well, I think the equal protection question would be different in the other circumstance. That's a matter of, I know the equal board, that's an argument. But the Federalism concerns come into play in the following way. And that the, Mr. Clement has made the argument that, look, whatever states can do in terms of recognizing marriage or not recognizing marriage, the Federal government has commensurate authority to do or not do. We don't think that's right as a matter of our equal protection analysis because we don't think the Federal government should be thought of as the 51st state. Now, as we told the Court yesterday, we believe heightened scrutiny ought to apply even to the state decisions. But you're insisting that we get to a very fundamental question about equal protection. But we don't do that unless we assume that the law is valid otherwise to begin with. And we're asking is that valid otherwise? Is what is the Federal interest in enacting this statute and is it a valid Federal interest assuming, but before we get to the equal protection analysis? No. We think whatever the outer bounds of the Federal government's authority, and there certainly are outer bounds, would be, apart from the equal protection violation, we don't think that section 3, apart from equal protection analysis, raises a Federalism problem. But we do think the Federalism analysis does play into the equal protection analysis because the Federal government is not the 51st state for purposes of the interest that Mr. Clement has identified in the back. Could I take you back to the example that you began with where a member of the military is injured? So let's say three soldiers are injured and they're all in same-sex relationships. And in each instance, the other partner in this relationship wants to visit the soldier in a hospital. The first is a spouse in a state that allows same-sex marriage. The second is a domestic partner in a state that allows that, but not same-sex marriage. The third is in an equally committed loving relationship in a state that doesn't involve either. Now, your argument is that under Federal law, the first would be admitted, should be admitted, but the other two would be kept out. The question in the case, Justice Alito, is whether Congress has a sufficiently persuasive justification for the exclusion that it has imposed. And it does not. The only way in which the Black's arguments for the Constitutionality of the statute have any prospect of being upheld is if the Court adopts the minimal rationality standard of leopards. But if I could just take you back to the example, your position seems to be, yes, one gets in to stay out, even though your legal arguments would lead to the conclusion that they all should be treated. The question before the Court is whether the exclusion that DOMA imposes violates equal protection, and it does violate equal protection because you can't treat this as though it were just a distinction between optometrist and optomologist as the leoptical case did. This is a different kind of a situation because the discrimination here is being visited on a group that has historically been subjected to terrible discrimination on the basis of a person. That's the same in the example that he just gave you. The discrimination would have been visited on the same group, and you say, there, it's okay. Well, no, I didn't say that. It would be subject equal protection analysis, certainly, and there might be a problem. You think that's bad as well, but all three of those have to be treated the same. Well, despite State law, by my actions. They'd have to be analyzed under equal protection principles, but whatever is true about the other situations, in a situation in which the couple is lawfully married for purposes of State law, and the exclusion as a result of DOMA itself, the exclusion has to be justified under this Court's equal protection analysis in DOMA as he did it. You think, I think from your brief yesterday and today, that on some level sexual orientation should be looked at on an intermediate standard of scrutiny? Yes, Your Honor. All right, heightened in some way. Going back to the chief's question about a law that was passed recognizing common law, heterosexual, homosexual marriages. I think even under your theory, that might be suspect, because that law might be suspect under equal protection, because once we say sexual orientation is suspect, it would be suspect whether it's homosexual or heterosexual. A lot of favors homosexuals. It would be suspect because it's based on sexual orientation. You would have to impose the heightened scrutiny equal protection. Exactly. And so in when we decided race was a suspect class, people who are not blacks have received scrutiny on whether the use of race as a class, whether they're wider or black, is justified by a compelling interest

. But what you told the Chief Justice, there was not. Well, with respect to Section 3 of DOMA, the problem is an equal protection problem from the point of view of the United States. Yes, but General, surely the question of what the Federal interests are and whether those Federal interests should take account of the historic state prerogatives in this area is relevant to the equal protection inquiry. It's central to the inquiry, Justice Kagan. I completely agree with that point. And it would be central to the inquiry of Congress went the other way, too. Well, the difference is what Section 3 does is impose this exclusion from Federal benefits on a class that has undeniably been subject to a history of terrible discrimination on the basis of the Federal. I understand that. That's your equal protection argument. It's not very responsive to my concern that I'm trying to get an answer to. You don't think federalism concerns come into play at all in this, right? Well, I think the equal protection question would be different in the other circumstance. That's a matter of, I know the equal board, that's an argument. But the Federalism concerns come into play in the following way. And that the, Mr. Clement has made the argument that, look, whatever states can do in terms of recognizing marriage or not recognizing marriage, the Federal government has commensurate authority to do or not do. We don't think that's right as a matter of our equal protection analysis because we don't think the Federal government should be thought of as the 51st state. Now, as we told the Court yesterday, we believe heightened scrutiny ought to apply even to the state decisions. But you're insisting that we get to a very fundamental question about equal protection. But we don't do that unless we assume that the law is valid otherwise to begin with. And we're asking is that valid otherwise? Is what is the Federal interest in enacting this statute and is it a valid Federal interest assuming, but before we get to the equal protection analysis? No. We think whatever the outer bounds of the Federal government's authority, and there certainly are outer bounds, would be, apart from the equal protection violation, we don't think that section 3, apart from equal protection analysis, raises a Federalism problem. But we do think the Federalism analysis does play into the equal protection analysis because the Federal government is not the 51st state for purposes of the interest that Mr. Clement has identified in the back. Could I take you back to the example that you began with where a member of the military is injured? So let's say three soldiers are injured and they're all in same-sex relationships. And in each instance, the other partner in this relationship wants to visit the soldier in a hospital. The first is a spouse in a state that allows same-sex marriage. The second is a domestic partner in a state that allows that, but not same-sex marriage. The third is in an equally committed loving relationship in a state that doesn't involve either. Now, your argument is that under Federal law, the first would be admitted, should be admitted, but the other two would be kept out. The question in the case, Justice Alito, is whether Congress has a sufficiently persuasive justification for the exclusion that it has imposed. And it does not. The only way in which the Black's arguments for the Constitutionality of the statute have any prospect of being upheld is if the Court adopts the minimal rationality standard of leopards. But if I could just take you back to the example, your position seems to be, yes, one gets in to stay out, even though your legal arguments would lead to the conclusion that they all should be treated. The question before the Court is whether the exclusion that DOMA imposes violates equal protection, and it does violate equal protection because you can't treat this as though it were just a distinction between optometrist and optomologist as the leoptical case did. This is a different kind of a situation because the discrimination here is being visited on a group that has historically been subjected to terrible discrimination on the basis of a person. That's the same in the example that he just gave you. The discrimination would have been visited on the same group, and you say, there, it's okay. Well, no, I didn't say that. It would be subject equal protection analysis, certainly, and there might be a problem. You think that's bad as well, but all three of those have to be treated the same. Well, despite State law, by my actions. They'd have to be analyzed under equal protection principles, but whatever is true about the other situations, in a situation in which the couple is lawfully married for purposes of State law, and the exclusion as a result of DOMA itself, the exclusion has to be justified under this Court's equal protection analysis in DOMA as he did it. You think, I think from your brief yesterday and today, that on some level sexual orientation should be looked at on an intermediate standard of scrutiny? Yes, Your Honor. All right, heightened in some way. Going back to the chief's question about a law that was passed recognizing common law, heterosexual, homosexual marriages. I think even under your theory, that might be suspect, because that law might be suspect under equal protection, because once we say sexual orientation is suspect, it would be suspect whether it's homosexual or heterosexual. A lot of favors homosexuals. It would be suspect because it's based on sexual orientation. You would have to impose the heightened scrutiny equal protection. Exactly. And so in when we decided race was a suspect class, people who are not blacks have received scrutiny on whether the use of race as a class, whether they're wider or black, is justified by a compelling interest. That's certainly true, Your Honor. If I could turn to the interest that black is actually identified as supporting the statute, I think they're, I think you can see what the problem is here. Now, this statute is not called the Federal Uniform Marriage Benefits Act. It's called the Defense of Marriage Act. And the reason for that is because the statute is not directed at uniformity in the administration of federal benefits. All, there's two equally uniform systems, the system of respecting the state choices, and the system of that black is advocating here. And what blacks got to do in order to satisfy equal protection scrutiny is justify the choice between one and the other. And the difference between the two is that the Section 3 choice is a choice that, Section 3 choice is a choice that discriminates. And so it's not simply a matter of sufficient to say, well, uniformity is enough. Section 3 discriminates. And what's so is, as soon as one State adopted same-sex marriage, the definition of marriage throughout the Federal Code had to change, because there's no doubt that up until that point, every time Congress said marriage, they understood that they were acting under the traditional definition of marriage. Well, I don't know, Mr. Chief Justice, why you wouldn't assume that what Congress was doing when it enacted a statute, a particular statute that had to word marriage, and it was assuming that the normal rule that applies in the vast majority of circumstances of deference to the State definition of marriage would be the operative principle. So you don't think that when Congress said marriage in every one of these provisions, and they had in mind same-sex marriages? No. But they may well have had in mind that deferring to the normal State definition of marriage, whatever it is, not that they were making a specific choice that my friends suggest they were. But whatever is the case, when Congress enacted DOMA, that choice of exclusion has to be justified under appropriate equal protection principles. And so the issue of uniformity just doesn't get you there, because there's no uniformity advantage to Section 3 of DOMA as opposed to the traditional rule. The issue of administration doesn't get you there. I mean, at a very basic level, administrative concerns ought not be an important enough interest to justify this kind of discrimination under the equal protection clause. But even if you look at them, there are no genuine administrative benefits to DOMA. If anything, DOMA Section 3 of DOMA makes federal administration more difficult, because now the federal government has to look behind valid State marriage licenses and see whether they are about State marriages that are out of compliance with DOMA. It's an additional administrative burden, so there's no administrative advantage to be gained here by what Congress sought to achieve. And the fundamental reality of it is, and I think the House report makes this glaringly clear, is that DOMA was not enacted for any purpose of uniformity, administration, caution, pausing any of that. It was enacted to exclude same-sex lawfully married couples from federal benefit regimes based on a conclusion that was driven by moral disapproval. It is quite clear and black and white in the pages of the House report, which we cite on page 38. So that was the view of the 84 senators who voted in favor of it and the President who signed it. They were motivated by animus. No, Mr. Chief Justice, we quoted the Garrett concurrence in our brief, and I think there's a lot of wisdom there, that there may well not have been animus or hostility. It may well have been what Garrett described as the simple want of careful reflection or an instinctive response to a class of people, a group of people who we perceive as alien or other, but whatever the explanation, whether it's animus, whether it's that more subtle, more unthinking, more reflective kind of discrimination, section three is discrimination. And I think it's time for the Court to recognize that this discrimination, excluding lawfully married gay and lesbian couples from federal benefits, cannot be reconciled with our fundamental commitment to equal treatment under law. This is discrimination in its most very basic aspect, and the House report, whether, and I certainly would not suggest that it was universally motivated by something other than goodwill, but the reality is that it was an expression of moral disapproval of exactly the kind that this Court said in Lawrence would not justify the law that was struck down. General, your bottom line is it's an equal protection violation for the federal government in all states as well. Yes, you know, we took the position, we took yesterday with respect to marriage, it would be in the analysis of the question. Yesterday, but it didn't make to limit this to this case, these would be the federal government did not. Well, as we said yesterday, we think it's an open question with respect to state recognition of marriage, and they may well be able to advance interests. They may be able to advance interests, I shouldn't say may well, because I do think it would be difficult as we said yesterday. They may be able to advance interests that would satisfy heightened scrutiny and justify non-recognition. But here, the federal government is not in the same position, because as Black concedes, the federal government at the most can act at the margins in influencing these decisions about marriage and child wearing at the state level. And the second circuit on the first circuit both concluded that there's no connection at all, and that's of course because Section 3 doesn't make it any more likely that unmarried men and women in states that unmarried women in states. And the elimination of Section 3 wouldn't make it any less likely that unmarried men and women are going to get married. It doesn't have any effect at all, it doesn't have any connection at all, so it's not at the margins. There's no interest at all at this in Delming and Promoting. If there's no interest, I mean, I'm back. We were a yes today. It seems to me for getting your preferable argument, it's a violation of equal protection everywhere. Well, if it is, then all states have to have something like Pax. And if they have to have something like Pax, then you say then they also have to allow marriage. I say then are you not arguing they all have to allow marriage? And then you say no. All right, so at that point, I get right. And I'm somewhat

. That's certainly true, Your Honor. If I could turn to the interest that black is actually identified as supporting the statute, I think they're, I think you can see what the problem is here. Now, this statute is not called the Federal Uniform Marriage Benefits Act. It's called the Defense of Marriage Act. And the reason for that is because the statute is not directed at uniformity in the administration of federal benefits. All, there's two equally uniform systems, the system of respecting the state choices, and the system of that black is advocating here. And what blacks got to do in order to satisfy equal protection scrutiny is justify the choice between one and the other. And the difference between the two is that the Section 3 choice is a choice that, Section 3 choice is a choice that discriminates. And so it's not simply a matter of sufficient to say, well, uniformity is enough. Section 3 discriminates. And what's so is, as soon as one State adopted same-sex marriage, the definition of marriage throughout the Federal Code had to change, because there's no doubt that up until that point, every time Congress said marriage, they understood that they were acting under the traditional definition of marriage. Well, I don't know, Mr. Chief Justice, why you wouldn't assume that what Congress was doing when it enacted a statute, a particular statute that had to word marriage, and it was assuming that the normal rule that applies in the vast majority of circumstances of deference to the State definition of marriage would be the operative principle. So you don't think that when Congress said marriage in every one of these provisions, and they had in mind same-sex marriages? No. But they may well have had in mind that deferring to the normal State definition of marriage, whatever it is, not that they were making a specific choice that my friends suggest they were. But whatever is the case, when Congress enacted DOMA, that choice of exclusion has to be justified under appropriate equal protection principles. And so the issue of uniformity just doesn't get you there, because there's no uniformity advantage to Section 3 of DOMA as opposed to the traditional rule. The issue of administration doesn't get you there. I mean, at a very basic level, administrative concerns ought not be an important enough interest to justify this kind of discrimination under the equal protection clause. But even if you look at them, there are no genuine administrative benefits to DOMA. If anything, DOMA Section 3 of DOMA makes federal administration more difficult, because now the federal government has to look behind valid State marriage licenses and see whether they are about State marriages that are out of compliance with DOMA. It's an additional administrative burden, so there's no administrative advantage to be gained here by what Congress sought to achieve. And the fundamental reality of it is, and I think the House report makes this glaringly clear, is that DOMA was not enacted for any purpose of uniformity, administration, caution, pausing any of that. It was enacted to exclude same-sex lawfully married couples from federal benefit regimes based on a conclusion that was driven by moral disapproval. It is quite clear and black and white in the pages of the House report, which we cite on page 38. So that was the view of the 84 senators who voted in favor of it and the President who signed it. They were motivated by animus. No, Mr. Chief Justice, we quoted the Garrett concurrence in our brief, and I think there's a lot of wisdom there, that there may well not have been animus or hostility. It may well have been what Garrett described as the simple want of careful reflection or an instinctive response to a class of people, a group of people who we perceive as alien or other, but whatever the explanation, whether it's animus, whether it's that more subtle, more unthinking, more reflective kind of discrimination, section three is discrimination. And I think it's time for the Court to recognize that this discrimination, excluding lawfully married gay and lesbian couples from federal benefits, cannot be reconciled with our fundamental commitment to equal treatment under law. This is discrimination in its most very basic aspect, and the House report, whether, and I certainly would not suggest that it was universally motivated by something other than goodwill, but the reality is that it was an expression of moral disapproval of exactly the kind that this Court said in Lawrence would not justify the law that was struck down. General, your bottom line is it's an equal protection violation for the federal government in all states as well. Yes, you know, we took the position, we took yesterday with respect to marriage, it would be in the analysis of the question. Yesterday, but it didn't make to limit this to this case, these would be the federal government did not. Well, as we said yesterday, we think it's an open question with respect to state recognition of marriage, and they may well be able to advance interests. They may be able to advance interests, I shouldn't say may well, because I do think it would be difficult as we said yesterday. They may be able to advance interests that would satisfy heightened scrutiny and justify non-recognition. But here, the federal government is not in the same position, because as Black concedes, the federal government at the most can act at the margins in influencing these decisions about marriage and child wearing at the state level. And the second circuit on the first circuit both concluded that there's no connection at all, and that's of course because Section 3 doesn't make it any more likely that unmarried men and women in states that unmarried women in states. And the elimination of Section 3 wouldn't make it any less likely that unmarried men and women are going to get married. It doesn't have any effect at all, it doesn't have any connection at all, so it's not at the margins. There's no interest at all at this in Delming and Promoting. If there's no interest, I mean, I'm back. We were a yes today. It seems to me for getting your preferable argument, it's a violation of equal protection everywhere. Well, if it is, then all states have to have something like Pax. And if they have to have something like Pax, then you say then they also have to allow marriage. I say then are you not arguing they all have to allow marriage? And then you say no. All right, so at that point, I get right. And I'm somewhat... What a point here, Justice Breyer, is that whatever, may have been interesting, whatever the issue is, whatever the outcome is with respect to states and marriage, that the federal government's interest in advancing those justifications through Section 3 of Delming is so attenuated that two federal courts of appeals have seen it as non-existent, and it cannot justify Section 3. Thank you, General. Just a moment. 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. The ex-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 accusal statutes. And my client was treated as unmarried when her spouse passed away so that she had to pay $363,000 in a state taxes on the property that they had accumulated during their 44 years together. Could I ask you the same question I asked that solicitor general, do you think there would be a problem if Congress went the other way, federalism problem? Obviously, you don't think there's an equal protection problem, 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. Well, obviously with respect to marriage, the federal government has always used the state definitions. And I think what you're, the 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. 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? I think the question under the equal protection clauses is what the distinction is. No, no, I know that you're following the lead of this solicitor general in returning to the equal protection clause every time I ask the federalism question. Is there any problem under federalism principles? With the federal government. 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. It has certainly been argued in this case by others that whether or not that's in the enumerated powers of the federal government. For the reason just as 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. I don't understand your answer. Your answer yes or no. Is there a federalism problem with that or isn't there a federalism? 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 could have its own definition of marriage I think would be very closely argued whether that's outside the enumerated powers. Well, all these statutes use the term marriage and the federal government says in all of these statutes when it says marriage it includes same-sex couples. Whether the state acknowledges them to be married or not. But I don't know if that would work because they wouldn't be- The power to marry people is the power that rests with the states. The federal government doesn't issue marriage licenses. It never has. No, 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. That's what it says. How long is the people- And do that? As long as people were valiantly married under state law and met the requirements of state law to get married- No, no, no, no, no. I'm not sure that the federal government has to answer your question just to Scalia. I'm not sure that the federal government could create a new federal marriage that would be some kind of marriage that states don't permit. Well, let me get to the question I asked Mr. Clement. It just gets rid of the word marriage. It takes it out of the U.S. code completely, substitute something else and defines it as same-sex couples. Yes, surely it can do that. Yes, that would not be based on the state- So it's just the word marriage. It's just the fact that they use this term marriage

... What a point here, Justice Breyer, is that whatever, may have been interesting, whatever the issue is, whatever the outcome is with respect to states and marriage, that the federal government's interest in advancing those justifications through Section 3 of Delming is so attenuated that two federal courts of appeals have seen it as non-existent, and it cannot justify Section 3. Thank you, General. Just a moment. 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. The ex-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 accusal statutes. And my client was treated as unmarried when her spouse passed away so that she had to pay $363,000 in a state taxes on the property that they had accumulated during their 44 years together. Could I ask you the same question I asked that solicitor general, do you think there would be a problem if Congress went the other way, federalism problem? Obviously, you don't think there's an equal protection problem, 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. Well, obviously with respect to marriage, the federal government has always used the state definitions. And I think what you're, the 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. 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? I think the question under the equal protection clauses is what the distinction is. No, no, I know that you're following the lead of this solicitor general in returning to the equal protection clause every time I ask the federalism question. Is there any problem under federalism principles? With the federal government. 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. It has certainly been argued in this case by others that whether or not that's in the enumerated powers of the federal government. For the reason just as 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. I don't understand your answer. Your answer yes or no. Is there a federalism problem with that or isn't there a federalism? 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 could have its own definition of marriage I think would be very closely argued whether that's outside the enumerated powers. Well, all these statutes use the term marriage and the federal government says in all of these statutes when it says marriage it includes same-sex couples. Whether the state acknowledges them to be married or not. But I don't know if that would work because they wouldn't be- The power to marry people is the power that rests with the states. The federal government doesn't issue marriage licenses. It never has. No, 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. That's what it says. How long is the people- And do that? As long as people were valiantly married under state law and met the requirements of state law to get married- No, no, no, no, no. I'm not sure that the federal government has to answer your question just to Scalia. I'm not sure that the federal government could create a new federal marriage that would be some kind of marriage that states don't permit. Well, let me get to the question I asked Mr. Clement. It just gets rid of the word marriage. It takes it out of the U.S. code completely, substitute something else and defines it as same-sex couples. Yes, surely it can do that. Yes, that would not be based on the state- So it's just the word marriage. It's just the fact that they use this term marriage. 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 his marriage. The federal government, I think we could decide to change that if it wanted and somehow very strange for all 1100 laws, but for certain programs to have different requirements other than marriage. And that would be constitutional or unconstitutional depending on the distinction. 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 state of residence of your client and her partner spouse. Was it New York? Was it some other state where same-sex marriage would not have been recognized? And suppose the state court said the state of residence is a state where it's not recognized. Would you not have essentially the same equal protection argument there that you have now? 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, and one of which has a constitutional amendment and a state constitutional amendment, and one of the spouses dies, they would not, since a state tax is determined 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're 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. Just if I could follow up with one question. What if 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 that be discrimination on the basis of sexual orientation? What would be the level of scrutiny would it survive? That would be certainly a different case, it would 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, it should be a rational basis, and the question would be what the state interests were, and not allowing couples, for example, 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 for my friend. Any legitimate difference between made, made, re-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 three 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 not. 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 K. K. Well, what do you think of his argument that I heard was to put the other side, at least one part, that as I understand it, to 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. The way to stay out of it is to go with the traditional thing. I mean, that's an argument. So your answer to that argument is what? I think it's an incorrect argument, just a spire for this week. I understand you do. I'd like to know the reason. Of course. Congress did not stay out of it. Section three of Doma is not staying out of it. Section three 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 up, couples who are already married and treating them as unmarried for purposes of the Federal law, 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. Now the discrimination is not the sexual orientation, but on a class of marriage. Is that what you're? It's a class of married couples. So I pose the same question, I pose to the general, to you. Do you think there's a difference between that discrimination and the discrimination of states who say homosexuals can't get married? I think that it's their 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 to, and whatever the issues would be in those states would be what interests the states have

. 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 his marriage. The federal government, I think we could decide to change that if it wanted and somehow very strange for all 1100 laws, but for certain programs to have different requirements other than marriage. And that would be constitutional or unconstitutional depending on the distinction. 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 state of residence of your client and her partner spouse. Was it New York? Was it some other state where same-sex marriage would not have been recognized? And suppose the state court said the state of residence is a state where it's not recognized. Would you not have essentially the same equal protection argument there that you have now? 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, and one of which has a constitutional amendment and a state constitutional amendment, and one of the spouses dies, they would not, since a state tax is determined 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're 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. Just if I could follow up with one question. What if 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 that be discrimination on the basis of sexual orientation? What would be the level of scrutiny would it survive? That would be certainly a different case, it would 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, it should be a rational basis, and the question would be what the state interests were, and not allowing couples, for example, 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 for my friend. Any legitimate difference between made, made, re-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 three 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 not. 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 K. K. Well, what do you think of his argument that I heard was to put the other side, at least one part, that as I understand it, to 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. The way to stay out of it is to go with the traditional thing. I mean, that's an argument. So your answer to that argument is what? I think it's an incorrect argument, just a spire for this week. I understand you do. I'd like to know the reason. Of course. Congress did not stay out of it. Section three of Doma is not staying out of it. Section three 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 up, couples who are already married and treating them as unmarried for purposes of the Federal law, 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. Now the discrimination is not the sexual orientation, but on a class of marriage. Is that what you're? It's a class of married couples. So I pose the same question, I pose to the general, to you. Do you think there's a difference between that discrimination and the discrimination of states who say homosexuals can't get married? I think that it's their 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 to, and whatever the issues would be in those states would be what interests the states have. As opposed to here, what interests, and we think there is none, the Federal Government has. There is a 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 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 force-bower's decision, but this support has said was wrong not only at the time it was overruled and mourns, but was wrong when it was decided. So, 84 is the same question I asked before. 84 senators base their vote on moral disapproval of gay people? No, I think what's 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 was no constitutionally permissible distinction. Well, does that mean times can blind? Does that mean they did not base their votes on moral disapproval? No, some clearly did. I think it was based on an understanding that gay, that 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 the 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 of gay people in their eyes. Why are you so confident in that judgment? How many states permit gay couples to marry? Today, nine years. And so there has been this sea change between now and 1996. I think with respect to the understanding of gay people in their relationship, there has been a sea change, Your Honor. How many states have civil unions now? I believe it's, that was, we were discussing the ideas eight or nine I think. And how many had it in 1996? I was much, much, much fewer at the time. I don't have that number, Justice Ginsburg, I apologize. 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. I disagree with that, Mr. Chief Justice. I think the sea change has to do just as was discussed in the Bowers and Lawrence with an understanding that there is no difference. There is no fundamental difference that could justify this kind of courticate, a categorical discrimination between gay couples. You don't doubt that the law be supporting the enactment of same-sex marriage laws in different states is politically powerful, do you? With respect to that categorization of the term for purposes of high-incurring, I would, Your Honor. I don't really. As far as I can tell, political figures are falling over themselves to endorse your side of the case. 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 of 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 women were at the time of front-to-air. 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 groups on your side of the case. So flip the language of the House of Court, 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 than the relationships of the straight married couples. I don't think that- Well, I understand that. I'm just trying to see where that moral understanding came from, if not the political effectiveness of particular groups. I think it came, again, very similar to what you saw between powers and norms. I think it came to a societal understanding. I don't believe that a societal understanding came strictly through political power, and I don't think that gay people today have political power. As vast this Court has used that term in connection with the heightened scrutiny analysis. Thank you, Ms. Kaplan. Mr

. As opposed to here, what interests, and we think there is none, the Federal Government has. There is a 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 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 force-bower's decision, but this support has said was wrong not only at the time it was overruled and mourns, but was wrong when it was decided. So, 84 is the same question I asked before. 84 senators base their vote on moral disapproval of gay people? No, I think what's 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 was no constitutionally permissible distinction. Well, does that mean times can blind? Does that mean they did not base their votes on moral disapproval? No, some clearly did. I think it was based on an understanding that gay, that 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 the 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 of gay people in their eyes. Why are you so confident in that judgment? How many states permit gay couples to marry? Today, nine years. And so there has been this sea change between now and 1996. I think with respect to the understanding of gay people in their relationship, there has been a sea change, Your Honor. How many states have civil unions now? I believe it's, that was, we were discussing the ideas eight or nine I think. And how many had it in 1996? I was much, much, much fewer at the time. I don't have that number, Justice Ginsburg, I apologize. 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. I disagree with that, Mr. Chief Justice. I think the sea change has to do just as was discussed in the Bowers and Lawrence with an understanding that there is no difference. There is no fundamental difference that could justify this kind of courticate, a categorical discrimination between gay couples. You don't doubt that the law be supporting the enactment of same-sex marriage laws in different states is politically powerful, do you? With respect to that categorization of the term for purposes of high-incurring, I would, Your Honor. I don't really. As far as I can tell, political figures are falling over themselves to endorse your side of the case. 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 of 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 women were at the time of front-to-air. 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 groups on your side of the case. So flip the language of the House of Court, 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 than the relationships of the straight married couples. I don't think that- Well, I understand that. I'm just trying to see where that moral understanding came from, if not the political effectiveness of particular groups. I think it came, again, very similar to what you saw between powers and norms. I think it came to a societal understanding. I don't believe that a societal understanding came strictly through political power, and I don't think that gay people today have political power. As vast this Court has used that term in connection with the heightened scrutiny analysis. Thank you, Ms. Kaplan. Mr. Clement, you have three minutes remaining. Thank you, Mr. Chief Justice. Excuse me, just three points in rebuttal. First of all, I was not surprised here that the solicitor general concede that there's no unique federalism problem with DOMA, because in the GIL litigation in the first circuit, the State of Massachusetts, the Commonwealth of Massachusetts, in both the 10th 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 question suggested. If ten years from now, there are only nine states left, and Congress wants to adopt a uniform federal law solely for federal law purposes, going the other way, it is fully entitled to do that, it has the power to do that. I would say also that a government has conceded in this litigation that there is a rational basis for the statute, something else to keep in mind. I would also say that this provision is not so unique, the very next provision in the Dix area. Mr. Clement, it is a problem in your breathing. You seem to say, and repeated today, there are three years, 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, re-re-re-re, the Court did something that had never done in the history of the country under rational basis. There was no intermediate here, then. It was rational basis. And yet, the Court said this is ranked discrimination, and it fails. And Justice Ginsburg, I mean, applying rational basis to DOMA, I think that there are many rational basis 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 interest 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, that they can lose their benefits. The Federal Government uniquely, unlike the 50 states, can say, well, that doesn't make any sense, we're going to have the same rule. We don't want somebody, if they're going to be transferred in the military, from West Point to Fort Sill in Oklahoma to resist the transfer because they're going to lose some benefits. It makes sense to have a uniform federal rule for the Federal Government. It's 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 Constitutional law, and the fact that it's the same rule that the Constitutional law is the most important thing to do. It's not what you do when you're 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 Roma, and they got the same answer, it's Constitution. 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's been a sea change is a combination of political power, it's defined by the support's cases, it's getting the attention of lawmen, for 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're right. That's going on across the country. Colorado, the state that brought you amendment two, has just recognized civil unions. Maine, that was pointed to in the record in this case as being evidence, 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, allowed the democratic process to continue. Thank you. Thank you, Council. Council, the case is submitted.

We'll hear argument this morning in case 12307 United States versus Windsor and we'll begin with jurisdictional discussion. Ms. Jackson. Mr. Chief Justice, and may it please the court. There is no justishable case before this court. Petitioner, the United States, does not ask this court to redress the injuries it asserts. The House of Representatives by partisan legal advisory group, the Black, which does seek redress in the form of reversal asserts no judicially cognizable injury. While it is natural to want to reach the merits of such a significant issue, as in rains against bird, this natural urge must be put aside because, however important, the constitutional question. Article 3 prevents its decision here and requires this court to await another case, another day, to decide the question. In the district court, Ms. Windsor alleged classical Article 3 injury for which she sought redress. Other persons injured by domas operation could likewise sue in a first instance court and if their challenge succeeds, obtain relief. But to exercise jurisdiction on this appeal, when the United States asked for the judgment below, fully agrees with it. And who else is going to be agree if she's not? Meaning another person who is, whose benefits are withheld, tax refund is withheld, is going to be in an identical situation to her. Who else could come in? Your Honor, it is possible that in district courts where other taxpayers sue the United States on similar relief that the district courts will rule differently, at least one district court that I'm aware of in a case called Louis B. Holder, ruled against upheld doma even though the government had switched its position at that time. In addition, the issue of domas operation. Excuse me, if there's no jurisdiction here, why was there jurisdiction at the trial level? I mean, the government comes in and says, I agree. Or if there was jurisdiction, why did the court ever have to get to the merits? If you have a, let's say, a lawsuit on an indebtedness and the alleged debtor comes in and says, yeah, I owe the money, but I'm just not going to pay it. Which is the equivalent of the government saying, yeah, it's unconstitutional, but I'm going to enforce it anyway. What would happen in that indebtedness suit is that the court would enter judgment and say, if you agree that you owe it, by God, you should pay it. And there would be a judgment right there without any consideration of the merits, right? Why didn't that happen here? Your Honor, the two questions that you asked me, why did the district court have jurisdiction? The first answer is that the party invoking the district court's jurisdiction was Ms. Windsor, who did have an injury. As to why the district court didn't enter judgment when the United States switched its position, I, I imagine that the court would have wanted to have development of that issue, which was achieved through the intervention of the Black and the trial court so that the judgment of unconstitutionality and of refund would have had a robust hearing. That's very peculiar. When both parties, to the case, agree on what the law is, what, just for fun, the district judge is going to have a hearing? Well, Your Honor, the jurisdiction of the court, it seems to me, is not affected by the length of proceedings it undertook. In constiction now on talking about why the district court, without getting to the merits, should not have rendered judgment against the government. I am not sure I have a wonderful answer to that question, Justice Scalia, but I do think the case bears some similarities to Kentucky against Indiana, which was discussed by the parties, where Kentucky sued Indiana in this court's original jurisdiction on a contract. The two states had a contract. Indiana agreed it was obligated to perform, but it wasn't performing. It was worried about a state court lawsuit. This court exercised original jurisdiction to give Kentucky relief. And I think that's analogous to what the district court did there. The issue before us today, I think, is an issue of a peltier restriction. And the U.S. is seeking to invoke the peltier restriction of Article III courts, not withstanding that it doesn't seek relief, it seeks affirmance. Well, the Solicitor General's standing argument is very abstract, but here is one possible way of understanding it. Perhaps the Solicitor General will disavow it. But it would go like this. The President's position in this case is that he is going to continue to enforce DOMA, engaging conduct that he believes is unconstitutional until this court tells him to stop. The judgment of the Second Circuit told the executive branch to comply with the equal protection laws immediately. The President disagrees with the temporal aspect of that. So the executive is aggrieved in the sense that the executive is ordered to do something prior to the point when the executive believes it should do that thing. Now, wouldn't that be sufficient to create injury in the executive and render the executive an aggrieved party? I think not, Your Honor. I think not because I don't see how that would be any different from any party saying, well, we really don't want to pay this judgment until we're sure all of the courts agree. And I think this court doesn't have a lot of case lower, a party seeks review to get affirmance. But in the Princeton University against Schmitt case, there was a state court conviction, a high state court overturns it. Princeton University seeks review because its regulations were at issue. New Jersey joins in seeking review, but does not ask for relief, does not take a position on what relief would be. Well, I wouldn't imagine there in article two. It says that the President shall take care that the laws be faithfully executed. So the President has worked out, I personally, and for reasons in my department, others think, that this law is unconstitution, but I have this obligation. And because I have this obligation, I will not. I will continue to execute this law. I will continue to execute it, though I disagree with it. And I execute it until I have an authoritative determination, not to. How is that different from a trustee who believes that he has an obligation to a trust, to do something under a certain provision that he thinks doesn't require that, but there's a debate about it, but he says, I have the obligation here. I'm going to follow this through. There would be standing in the second case for any fiduciary, despite his personal beliefs, to continue. We'd understand that and say there was standing. Why don't we hear? Well, the trustee, I think, would be able to go to a court of first instance to get an adjudication of the claim. What I'm submitting to you that the trustee could not do. After getting the first, the judgment in the court of first instance, stating what the remedy, what the liability is, then seek review of that judgment, but ask only for it to be a- But that's the part I don't understand. If, in fact, as you agree, the trustee or other fiduciary, in my example, would indeed have standing to act according to the law, even though he thinks that that law is unconstitutional because of his obligation, such as under Section 2. You agree he has the idea that there is standing when he goes into court in the first place, which surely he could interpret. Article 2 is saying, and you follow it through, as long as you can do it, which includes appeals until the matter is determined, finally, and authoritatively, by a court. If you could do the first, what suddenly stops you from doing the second? In the first instance, the obligations are uncertain that trustee is presumably subject to potentially adverse competing claims on his or her action. Well, I would have thought your answer would be that the executive's obligation to execute the law includes the obligation to execute the law consistent with the Constitution. 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 to the Supreme Court, tells us we have no choice. Mr. Chief Justice, I think that's a hard question under Article 2, but I think the Article 3 questions that this Court is facing. Turn on what the parties in the case have alleged, what relief they're seeking, and what the posture is. In the infeidel court, St. jurisprudence, are you saying there's a lack of adversity here? I am saying, Prime Minister, can you give us a pigeonhole? It's a little difficult because the circumstances unusual, Justice Kennedy, but I think the most apt of the doctrines, although they are overlapping and reinforce each other, the most apt is standing. This Court has made clear that a party on appeal has to meet the same Article 3 standing requirements of injury caused by the action complained of and redressable by the relief requested by- Well, it seems to me there's- there's injury here. Well, Your Honor, I do not agree that the injuries alleged by the United States should be cognizable by the Article 3 courts because those injuries are exactly what it asked the courts below to produce. But even if we treat the injuries as sufficiently alleged, Article 3 requires that the party complain of injury ask the court to remedy that injury. And that's a very important requirement, I think, under Article 3 for several reasons. The idea of the case or controversy limitation, as I understand it, is part of a broader separation of powers picture to make sure the Federal courts perform their proper role. And the reason why the Court has to be aware of the legal obligation that justifies judicial review of constitutional issues- For 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 3 injury. Why isn't it here? Justice Kagan, there is a three-pronged test. Even if you treat that as injury, it does not meet the requirements for standing on appeal because the government has not asked this Court to remedy that injury. The government has not asked this Court to overturn the rulings below so it doesn't have to pay the $365,000. It has asked this Court to affirm. And the case or controversy requirements that we're talking about are nested in an adversarial system where we rely on the parties to state their injuries and make their claims for relief. If the government or any party is not bound with respect to standing by its articulated request for a remedy, what that does is it enables the Court to fill in, to reshape, and for a doctrine that is supposed to be limiting the occasions for a judicial review of constitutionality, that is troubling. But don't we often separate those two things, ask whether there is injury for Article 3 purposes and causation and redressability, as you say, but then say, well, sometimes when all of those are met, there's not going to be adequate presentation of the arguments. And so we will appoint an amicus or will restructure things. And we do that when the government confesses error often. I mean, we do that several times a year in this courtroom. Yes, Your Honor, but confession of error cases with respect are quite different because in confession of error cases typically both parties at the appellate level end up being adverse to the judgment below. And they are asking relief from this Court, from the judgment below. But here we have a situation where a putting black to one side for the moment, between the United States and Ms. Windsor, there is no adversity, their inagreement. And neither of them is asking this Court to reverse or modify the judgment below. And so I think the confession of error cases are quite different from the perspective of Article 3. No, they are not in agreement about whether to pay the money or not. They are in agreement about what arguments are, or are correct legal arguments. And I can't think of a case other than the sham cases, which this isn't, where you would find no standing or other obstacle. And I can think of one case which you haven't mentioned, namely Chatta, which seems about identical. Your Honor, I don't think that Chatta is identical with respect in, for two main reasons. In Chatta, the Court was, I think, quite careful to avoid deciding whether the United States had Article 3 standing. It intensively analyzed a statute since repealed 1252, which gave this Court mandatory jurisdiction in cases in which a Federal statute was held unconstitutional and the U.S. was a party. And it framed its analysis of whether the statute permitted the appeal. What I think was, oh, may I reserve my time for a moment? You can finish your sentence. Thank you. What was going on there was the Court said, well, the statute was not the same. You wanted to reach very broadly, perhaps implicit, not stated, perhaps more broadly than Article 3. Congress said, whenever you have this configuration, you go up to the Supreme Court. Then the Supreme Court in Chatta says, of course, in addition to the statute, there must be Article 3 case or controversy. The presence of the congressional interveners here provides it. Thank you, Councillor. That was more than a sentence. Oh, I'm sorry. Sorry, Your Honor. Thank you. Mr. Schrinner-Rosson. Thank you, Mr. Chief Justice, and may it please the Court. This Court has jurisdiction in this case, based on the petition filed by the United States, for the same reasons it had jurisdiction in parallel circumstances in Chatta and Lubbock. There are two issues that have been brought up this morning, and I'd like to address each in turn. One is whether there's a concrete case or controversy, case or controversy, in the sense of adversity in this Court. And the second is the question of whether there's Article 3 standing for the government to bring this case before the Court. On the first one, is there any case where all the parties agreed with the decision below and we upheld the Pellet jurisdiction? Any case? Well, the parties agreed. All the parties agreed with the decision below and we nonetheless upheld the Pellet jurisdiction. Well, you didn't speak to it and love it, Your Honor, but the Court didn't raise it. No, it wasn't raised or addressed, and that had the distinct situation of an appeal, direct appeal, from an Article 1 tribunal. Well, I don't know that that matters because you had a satisfied Article 3 prerequisites to have the case in this Court. Now, Your Honor, of course, correct that the Court didn't affirmatively engage on the issue of jurisdiction, but that is a serious matter. So, putting love at the side since none of this was discussed there. Any case? No. I don't know of one, but this is the only one that's been done. So, all the young back. You're asking us to do something we have never done before to reach the issue in this case. Let me say two things about that if I'm out, Your Honor. First is that it's unusual, but that's not at all surprising, because the ‑‑ Well, it's totally unprecedented in one respect, Your Honor. If you look at Chata, the second one on Mecklenburg, let me make one point of the outset, though, which is that whether it's totally unusual, largely unusual, I grant you that it doesn't happen. But the reason it doesn't happen is because I wouldn't confuse the numerator with the denominator. This set of circumstances just doesn't arise very often. Now, it's true that when this set of ‑‑ It has not arisen very often in the past, because in the past, when I was at the Office of Legal Counsel, there was an opinion of the Office of Legal Counsel, which says that the attorney general will defend the laws of the United States, except in two circumstances, number one, where the basis for the alleged unconstitutionality has to do with presidential powers. When the presidential powers are involved, he's the lawyer for the president, so he can say we think the statute's unconstitutional, I won't defend it. The second situation is where no possible rational argument could be made in defense of it. Now, neither of those situations exist here, and I'm wondering if we're living in this new world where the attorney general can simply decide it's unconstitutional, but it's not so unconstitutional that I'm not willing to enforce it. If we're in this new world, I don't want these cases like this to come before this court all the time, and I think they will come all the time if that's the new regime in the Justice Department that we're dealing with. Justice Glea, one recognized situation in which an act of Congress won't be defended in court is when the President makes a determination that the act is unconstitutional. That's what happened here. The President made an accountable legal determination that this act of Congress is unconstitutional. But then why does he enforce the statute? Well, that's an option that's available to him, Justice Kennedy. In certain circumstances, it makes sense not to enforce, but I don't think the take care responsibility is an all-or-nothing proposition such that when the President reaches the determination that a statute's unconstitutional, it necessarily follows that he wouldn't enforce it. That's not what happened and love it. Well, let me ask you, suppose that constitutional scholars have graved out about the practice of a President signing a bill but saying that he thinks it's unconstitutional. What do you call it? Signing statements or something like that? It seems to me that if we adopt your position that that would ratify and confirm and encourage that question will practice, because if the President thinks the law is unconstitutional, he shouldn't sign it according to some view. And it's a lot like what you're arguing here. It's very troubling. In the signing statement situation, you're on one example in the past is Turner Broadcasting. In Turner Broadcasting, that was a circumstance in which it was a veto. But in the course of the veto, the President made the determination that a particular aspect of that statute was unconstitutional. And what happened as a result of that is that the Department of Justice didn't defend that aspect of the statute in litigation. Now, Subsequent President reached a contrary conclusion, 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. Why is it 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? The Mr. Chief Justice, I'd hesitate to give you a black and white algorithm. There are several considerations that would factor into it. One of the considerations would be- Excuse me, it's not your view, it's the President. 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? No, of course that's- Or the Solicitor General, is that enough? 28 U.S.C.530D presupposes, Congress presupposes that are going to be occasions in which a statute is not defended because of a conclusion by the Attorney General that it's unconstitutional. Oh, it can be either the Attorney General or the Solicitor General? It could be, but this is a situation in which the President made the determination. And when the President makes that determination, there are a few considerations that I think would factor into the mix in determining whether enforcement will follow. One of them would be the consequences of enforcement for the individuals who are affected. And so, for example, I would assume that if it's a criminal statute that we're talking about, an enforcement would require criminal enforcement against somebody and which would be get criminal sanctions. Oh, and Congress and Axis statute, it cannot be defended. It has no assurance that that statute will be defended in court if the Solicitor General, in his view, thinks it's unconstitutional. There have just a Scalia, there have been occasions in the past. Yes or no? Yes. Yes, it's true. And 28 USC530D exactly presupposes that. That's the exact occasion in which that process is occasion. Congress knew that this would happen. Now, it can happen also when in the rare instance in which the President himself makes that determination. And I don't think that the take care clause responsibility has this all or nothing capacity to it. It can be a conclusion of the decision. Not with the OLC opinion, said by the way. It can be that the President decides to enforce it. That's what happened in Love it and that's the course of events that we saw that have been adopted. But when the government, when the cases are duplicated in the first instance, we're talking here about a pellet authority. Correct. The government sometimes loses cases in the first instance and then it doesn't appeal. Well, it agrees with the result that the Court reached. It doesn't appeal and then the judgment in the first instance where there was adversity is the last word. So when does the government decide, yes, we agree with the adjudication in the Court of First Instance. And so we'll leave it there. And one does it say, yeah, we agree, but we want higher authority to participate. Well, there are a number of considerations that could factor into it, Justice Ginsburg, you write that either of those scenarios is possible. The reason that the government appealed in this case is because the President made the determination that this statute would continue to be enforced. And that was out of respect for the Congress that enacted the law and the President who signed it and out of respect for the role of the judiciary in saying what the law is. The point of taking an appeal here is that the government suffered an injury because a judgment was entered against the government in the Court of Appeals. That's a classic case for him. I don't know if it should not run out of time on the Black Standing. I know, Miss Lee, we didn't permit Ms. Jackson to address it. So don't run out of time on that. I want, Your Honor, I'll be happy to turn to Black Standing. I would like to make a couple of points on the question of our own standing to bring the petition before the Court. And I think Justice Breyer was right. The key precedent here is Chata. Chata establishes a couple of things. First, Chata establishes that there is agreement in the circumstances of this case. And I don't see what the difference is between agreement for purposes of statutory analysis, that issue in Chata, an injury for purposes of Article 3. How are you briefed? Agreeved means that you are deprived of your legal rights. And you don't think that you've been deprived of your legal rights because your obligations under the Constitution supersede Doma. And you haven't been deprived of anything that you're entitled to under the Constitution. So how are you aggrieved? I guess we'd, I'd subscribe to the agreement analysis that the Court made in Chata at pages 929 to 931 of its opinion. And what the Court said is this, when an agency of the United States is a party to a case in which an act of Congress that administers as a held on constitutional, it is an aggrieved party. The agency's status as an aggrieved party is not altered by the fact that the executive may agree with the holding that the statute in question is unconstitutional. So that description is on all fours with the circumstances of this case. Before you go on to the House Group, could I just clear up something? In your brief, you argue that you are representing all three branches of the government. Is that right? Correct. You're representing the judiciary as you stand before us here today, trying to persuade the Court. You're representing the Court? We represent the sovereign interests of the United States. Of course, in a case like this, we're submitting the dispute to the judiciary for resolution. So in that sense, I'm not going to stand here and tell you that I can dictate that the judiciary comes out in one direction or the other. I certainly would like to be able to do that, but I don't think I can and I'll fairness do that. It seems very strange. So in a criminal case where it's the United States versus Smith appearing before an Article III judge the United States, the prosecutor is representing the Court as well. Well, I think, I guess what I would say is this, the United States, the executive branch represents the sovereign interests of the United States before the Court. It's not, I think, the point of this is that it's not that the executive branch is representing the executive branch alone. The executive branch is representing the sovereign interests of the United States. And those interests would include the interests of the Congress that enacted the law, the interests of the President that signed it, and the interests of the judiciary in pronouncing on what the law is. And the course of action that the President chose to undertake here is in keeping with all of those considerations. Mr. Srinivasan, Chata says what you said it said about what it means to be agreed, but Chata also left open the Article III question. Why did Chata leave it open if it's the same thing? I don't know why Chata didn't engage on it in particular. I think part of it, Justice Kagan, is that the Court didn't have the methodology at that point in time that it does now. I don't know the neatly divided between those questions in the same way. So yes, it left the Article III question open, but I think the question of Article III injury necessarily follows from agreement. And I haven't heard a persuasive argument to the contrary. If we were agreed in the circumstances of Chata, it seems to me necessarily follows that we're injured. We're injured in a couple of ways. That act of Congress has been declared unconstitutional, which Chata itself says constitutes agreement and therefore constitutes injury. In this case, Chata, we're required to suggest that Congress could have standing in Chata. I'm sorry? In Chata, there was an argument that Congress had standing because what was at issue in the case was precisely a prerogative of Congress to exercise the one-houser to House Fido. There wasn't a, there, there, that was an issue in Chata. I don't know that that issue was joined actually, Justice Scalia. The Court did say at page 939 of its opinion that Congress is a proper party to defend the constitutionality of act and a proper petitioner, and I think that's the best language for you on the slide on this issue. So you say we should be concerned about that part of Chata because the issue wasn't joined there? Well, I don't, I don't read that. But we should take love it as a binding precedent, even though the issue wasn't addressed at all. I didn't, to be fair or as was suggested this morning to be crickets. I, I didn't mean to suggest that love it as binding precedent, Mr. Chief Justice, what I'm saying is love it is a case in which the same scenario as happens here occurred. That's my, that's my problem. All right, let's go to the black issue. So, sure. And the issue wasn't joined. So what do you think we meant? And I suggest to Scalia, it doesn't care what you think we meant. Right. Well, what is your reading of what that means that Congress can? I think that the interbeing in situations in which its interests are injured. Sure. So there are two aspects of Chata that are relevant. I've pages 939 and 940. The second discussion at page 940, I think deals with potential considerations that this court ought to take into account to make sure that it has a sufficient adverse presentation of the competing arguments before it. And that's accounted for by an Amicus type role. And I think that's what the court had in mind in Chata because the two cases that are cited and support to that proposition were both cases in which there was an appointed Amicus. So that, that deals with that aspect of Chata. The other aspect of Chata is the sentence that I alluded to earlier. And I guess I'm not, I'm not going to tell you that, that sentence doesn't bear on the issue at all. But I will say this, what's cited in that sentence is 28 U.S.E. 1254. So I think the point that was directly, directly being made is that the House and Senate were parties for purposes of the statute. And they were parties because they had intervened. And so they have to do with that. So are you accepting the Amicus formulation that somehow the representative has to be of both houses and not just one? No, I guess my point is a little bit different. My point is that this was talking about whether they're a party for statutory purposes under 1254. I don't read this to address the question of Article III standing. On the question of Article III standing, I guess what I would say is this, Chata at most, if it says anything about Article III standing, and I don't know that it does with respect to the House or Senate, at most what it would say was in the unique circumstances of that case where you had a legislative veto that uniquely affected a congressional process. So you take my position and that's- Even that, I don't want to concede. Well, I want to know what you're conceding. I'm conceding that at most. Well, let's, this very case, would, who would ever have standing on behalf of Congress? Anyone are you saying there's never standing? Well, there are two different cases. This case is different because this case doesn't involve the kind of unique congressional prerogative that was issued in Chata. Chata involved a legislative veto. Here, if I could just- This is an infinite percentage. Just thought, thank you, Mr. Chief Justice. Here, I don't think the interest that's being asserted is even in the same plan as the one that was asserted and found deficient in Reigns vs. Bird. Thank you, counsel. Mr. Clement? Thank you, Mr. Chief Justice, may it please the Court. This Court not only addressed the issue of the House's esteemed in Chata, it held that the House is the proper party to defend the Constitutionality of an act of Congress when the executive agency charged with its enforcement agrees with plaintiff that the statute is unconstitutional. Mr. Clement, Chata was somewhat different because there was a unique House prerogative question. But how is this case any different than enforcing the general laws of the United States? There is no unique House power granted by the legislation. Well, it's a law of the United States and the person who defends it generally is the solicitor general. Sure, generally in less than a two, they stop defending it. Why should the taxpayers have a right to come in and we say they don't? Because the House is very in a very different position in a case like this, end in Chata, from just the general taxpayer. Now, in a case like Chata, for example, you're right. It was the one House veto, if you will, that was at issue, but it'd be a strange, serious prudence that says that the House has standing to come in and defend an unconstitutional one House veto, but it doesn't have standing to come in and defend its core Article I prerogative, which is the past statutes and have those statutes. Well, that assumes the premise. The House didn't know it was unconstitutional. I mean. Well, with all due respect Justice Kennedy, I mean, I think that House- We're talking about X-Anti, that X-Post, what is standing at the outset and the House says this is constitutional? Sure, and there's a presumption that its acts are constitutional, that presumption had real life here, because when Congress was considering this statute, it asked the Justice Department three times whether Domo was constitutional, and three times the Justice Department told them that it was, in fact, constitutional. So I think it's a fair assumption that they at least have standing to have that determination made by the courts. And this Court has held that in the context of State Legislature. So you don't think there's anything to the argument that in Chata, the House had its own unique institutional responsibilities and prerogatives at stake, either one House veto or the legislative veto? Well, I would say too. That's irrelevant. I don't think it's irrelevant. I would say two things. One is, I don't think there was anything particularized about the fact that it was the House that exercised the one House veto, because the Court allowed the Senate to participate as well. And the Senate's interest in that was really just the constitutionality, the legislation, and perhaps the one House veto going forward. But what I would say is, I would continue to resist the premise, which is that the House's prerogatives aren't at stake here. The House is single most important prerogative, which is to pass legislation and to have that legislation, if it's going to be repealed, only be repealed through a process where the House gets to fully participate. What if you disagree with the executive is defending one of your laws, that's the way you insist on viewing it, and you don't like their arguments. You say, in question, they are three. They are not making the best argument. Is that a situation in which you have standing to intervene, to defend the law in a different way than the executive is? No, I would say we would not, Mr. Chief Justice, I would say in that circumstance, the House would have the prerogative, followed me, as briefly if it wanted to. But that's because of sound credential reason, which is when the executive is actually discharging its responsibility, its traditional obligation to defend and act Congress, if Congress comes in as a party, it has the possibility of second guessing the way that they are actually defending it. But if the executive is going to vacate the premises, or in a case like this, not just vacate the premises, but stay in an important attack statute, you don't have that potential concern. And that's part of what I- Well, how about a couple of cases sort of in the middle of the Chief Justice's in this one? So let's say that the Attorney General decides that a particular application of a statute is unconstitutional and decides to give up on that application, or even, let's say, the Attorney General decides that the application of a statute might be unconstitutional, so decides to interpret the statute narrowly in order to avoid that application? Could Congress then come in? Well, I think if it- if it- if it- in a particular case, which is obviously not this case, the executive decides we're not going to defend the statute as a plot, I think in that situation the House could come in. I think as a matter of practice, it probably wouldn't. And it's not like the House and the Senate are very anxious to exercise this progative. In the 30 years since the Chauda decision, there's only been 12 instances in which the exact- in which the House has come in and intervened as a party. And I think it's very important to recognize- Is that- is that included in the course of appeals or justice courts? That includes all courts, but excluding the Doma cases. So from the point of Chauda, until the Doma cases, there were a total of 12 cases where the House intervened as a party. And I do think that particularly in the lower court cases, it's very important to understand that party status is critical. I mean, in this case, it doesn't make a huge difference if you're in a meekest with argument time versus a party. But in the district court, that makes all the difference. Only a party can take deposition. This is what- we've always had the distinction between the public action and the private action. A public action which does not exist under the Federal Constitution is to vindicate the interest in the law being enforced. Now, when the government, state, or federal, in fact, has the interest- a special interest in executing the law, you're given to the President, and they could delegate that interest to Congress if they didn't, which argued that they didn't do here. But to say that any legislature has an interest on his own, without that delegation, to defend the law is to import in that context the public action into the Federal Government. Now, that's- it hasn't been done, I don't think, ever. I can see arguments for and against it, but I can't think of another instance where that's happened. Well, I would- a couple of things, Justice Breyer. I mean, I would point you to the chart, and I realize you can distinguish the chart. You thought it was really different because, of course, there is an interest in the legislature, in defending a procedure of the legislature. Now, that's- that- that isn't tough. But this is because the only interest I can see here is the interest in the law being enforced. And- And- And- And- And- And- And- And- And- And- And- And- And- And- Well, it's understandable, and I mean, obviously, you know, nobody's suggesting, at least in the legislative branch, this is a best practice situation. No, no, but when- Think of another instance where that's happened, where in all the 12 cases or whatever. But what this Court is said, without any special delegation of the power of this date or federal government to execute the law, without any special delegation, a legislator simply has the power, which a private citizen wouldn't have. To bring a lawsuit as a party or a defend as a party, to vindicate the interest in the law being enforced, the law he's voted for. Now, I can imagine arguments on both sides, so I'm asking you only, is there any case you can point me to, which will help? I can point you to a couple of cases that will help, but may not be a complete solution for some of the reasons you built into your question. The cases I would point to help are Coleman against Miller, are culture against May, and Arizona's for official English. And all of those, I don't think Coleman involved any legislative, legislative authorization, but you can distinguish it, I suppose. But in trying to distinguish it, keep in mind that this Court gave those 20 Senators not just standing to make the argument about the role of the Lieutenant Governor, but also gave them standing to make a separate argument, which is the only one this Court reached, is a divided four to four on the Lieutenant Governor's role. The only issue that the Court reached was this issue about whether prior ratification disabled them, their subsequent legislative action, which is just a way of saying what they did as unconstitutional. So I think Coleman is quite close. Culture, Arizona's against English, there was an authorization. We would say HRES-5 is enough of an authorization for the Court. The Court is not in consideration of extending that right to the House, but the appointment of the Black is strange to me, because it's not in a statute, it's in a House rule. So how does that constitute anything other than a private agreement among some Senators, the House leadership, and where do they derive the right, the statutory right, to take on the power of representing the House in items outside of the House? I know they control the procedures within the House, but it's a very different step than saying that they can decide who or to create standing in some way, for dendular otherwise, or to go through your otherwise. Well, Justice Sotomayor, I can put you to two places. One is the House rules that are pursuant to the rulemaking authority and approved by the institution, and they're approved in every Congress, rule 2.2. What other House rule creates the power of the majority leaders to represent the House outside of the functions of the House? I'm not sure there is another one, but that's the sole purpose of rule 2.8. It creates offices in general. This would be, I think, sort of unheard of, that- I don't think so, Justice Sotomayor. That's the same authority that gave the House, you know, essentially a predecessor to it, to the same authority that had the House appear in litigation ever since Chauda, and Chauda there was a vote that authorized it specifically, but we have that here in H-Res 5, which is the second place- We don't even have a vote here. We do. We have to have a vote in H-Res 5, beginning of this Congress in January, the House passed a resolution that passed that authorized the Black to continue to represent the interest of the House in this particular litigation. So I think if there was a question before H-Res 5, there shouldn't be now. I'd like- Under your view, would the Senate have the right to have standing to take the other side of this case, so we have the House on one side of the Senate on the other? No, Justice Kennedy, they wouldn't have the standing to be on the other side of this case. They would have to be on the same side of this case. And I think that's what essentially you have had happened. Well, why not? It's concerned about the argument, and you say as a House of Representatives standing alone can come into the court, why can't the Senate stand alone coming to court, intervening on the other side? Because it wouldn't have the authority to do so under Chauda. What Chauda makes the critical flipping of the switch that gives the House the ability to intervene as a party is that the executive branch declines to defend the statute. So if the Senate wants to come in and basically take chair argument time or something as an amicus, they can. But there's no need for them to participate as a party. And I would want to emphasize that in the lower courts, participation by a party is absolutely critical. It doesn't make sense to have the party that wants to see the statute invalidated, being charged with litigation in the district courts, because whether the statute is going to be invalidated is going to depend on what kind of record there is in the district court. It would be one thing, Justice Scalia, of all that happened as they entered consent judgment. I suppose then the thing would end, and then in the long run, the executive would be forced to do their job and actually defend these statutes. Why is it not going to happen? And why is it sufficient for one House to take a position that the statute is constitutional? The enactment of legislation requires both houses and usually the signature of the President. Justice Lido, I think it makes perfect sense in this context, because each individual House has a constitutional role before a statute is repealed. And so, yeah, it takes two of them to make the law, but each of theirs participation is necessary to repeal a law. So if the executive wants to go into court and effectively seek the judicial repeal of a law, it makes sense that one House can essentially vindicate its role in our constitutional scheme by saying, wait a minute, we passed that law, it can't be repealed without our participation. Well, if a law is passed by a bare majority of one of the houses, then each member of that house, who was part of the majority, has the same interest in defending its constitutionality. I don't think that's right after Reigns, Justice Lido, and Reigns, this court, carefully distinguished between the situation of an individual legislator and the situation of one of the houses as a whole. And it specifically said, this might be a different case if we had that kind of vote. And that's what you have here, that's what you had in Chatta. And again, I do think that, I mean, the only alternatives here are really to say that the executive absolutely must enforce these laws, and if they don't, I mean, because after all, I really don't understand why it's, if they're not going to, if they've made a determination that the law is unconstitutional, why it makes any sense for them to continue to enforce the law, and people put executive off the position of doing something that the president has determined is unconstitutional. I mean, think about the qualified immunity implications of that for a minute. So that's problematic enough, but if they're going to be able to do that and get anything more than a consent judgment, then the house is going to have to be able to play its role, and it's going to have to play the role of a party, and Amicus just doesn't get it done. And I really think in a sense, the executive gives the game away by conceding that our participation as an Amicus here is necessary to solve what would otherwise be a glaring adversities problem. Because once you recognize that we can participate as an Amicus, you've essentially recognized that there's nothing inherently executive about coming in and defending the constitutionality of an act of Congress, or more to the point, there's nothing inherently unlegislative about coming in and making arguments and defense of the statute. And if that's critical, absolutely necessary to ensure there's an adverse presentation of the issues, well, there's no reason the house should have to do that with one hand tied behind its back. If its participation is necessary, it should participate as a full party. And as I say, that's critically important in the lower courts, so that they can take the positions, build a factual record, and allow for a meaningful defense of the statute. Because the alternative really puts the executive branch in an impossible position, it's a conflict of interest. They're the ones that are making litigation decisions to promote the defense of the statute they want to see invalidate. And if you want to see the problems with their position, look at Joint Appendix page 437. You will see the most anomalous motion to dismiss in the history of litigation. A motion to dismiss filed by the United States, asking the district court not to dismiss the case. I mean, that's what you get under their view of the world, and that doesn't serve as separation. That does give you intellectual whiplash, I'm going to have to think about that. It does, it does. And then, you know, and the last thing I'll say is, we saw in this case certain appeals were expedited, certain appeals weren't. They did not serve the interest of defending the statute. They served the distinct interest of the executive. Thank you. Council, Ms. Jackson, you have four minutes remaining. Thank you, Your Honor. I have five points. I'll try to get to just very quickly Justice Breyer. I only answered part of a question you asked me earlier, and I just want to say the U.S. is asking this court to tell it to pay money. It's not asking for relief. Just a so-to-my-your-you asked me about how the issue could come up otherwise. I don't think I had a chance to mention private party litigation, employees against employers. There's an inter-pleter action right now pending that was cited in the brief of the 287 employers on page 32 at note 54. Giving examples of how the issue of domic constitutionality could arise in private litigation. In addition, state and local government employees might have, for example, FMLA claims in which the issue could arise. So I think that there are a number of ways in which the issue could arise. On the question of what the purpose of 1252 could be if it wasn't to coincide with Article III injury that was raised by my friend in his argument, I wonder whether the court in Chatta wasn't saying something like this. 1252 was Congress's wish list. It was like a citizen's suit provision to be exercised only to the extent that Article III power was there. That's a way to make sense out of what the court is doing in the text and footnote there. As to the question of Black, which has been very fully discussed already, I do want to say that after the fact authorization seems to be quite troubling and inconsistent with this court's approach in some Reverearth Institute and in the, I think it was in the plurality in Luhan, where you, if a party has standing, they need to have it in the first court that they're in, either when it starts or certainly before judgment. And the rule as Justice Sotomayor observed just doesn't seem to say anything about authority to litigate. I think that in addition, the big problem here is the injury being complied of is inconsistent with the separation of powers. Bowser and Buck, we make very clear that once the litigation is enacted, Congress's authority to supervise it is at an end. It goes over to the executive branch. And whether the executive branch does it well or badly in the view of Congress, it's in its domain. And separation of powers will not be meaningful if all it means is the Congress has to stay out unless it thinks that the president is doing it badly. So I think Article 2 helps give shape to what kinds of injuries alleged by parts of Congress can be cognizable. Finally, the two or three cases cited by my colleague, who last spoke Coleman, Carcher, and Arizona, all involved state level government, where the federal separation of powers doctrines articulated in cases like Bowser and Buckley were not at issue. Unless there are other questions, I will sit down. What could I ask you this question on the question of the House resolution? If one of the House's passes a resolution saying that a particular group was always authorized to represent us, do you think it's consistent with the separation of powers for us to examine what we're doing? Whether that's a correct interpretation of the rules of that House of Congress? Yes, I do your honor, because that resolution is not something operating only internally within the House. It is having effect in the world of the Article 3 courts, which this Court in preceding the fair rule meant notwithstanding the great respect given to the Senate's interpretation of this Court could reach and did reach an alternative interpretation of the meaning of the Senate rules. And I would urge this Court to do that. As long as you have a minute, what did you think of Mr. Clement's argument this way, that the execution and the execute laws is in Article 2, but where the President does not in a particular law? Under those circumstances, a member of the legislature appropriately authorized House, the constitutional power, a power that is different than the average person being interested in seeing that the law is carrying out. Well, they can represent the power to vindicate the interest in seeing that the law is executed. And that's a special interest, existing only when the executive declines to do so. Your honor, I think that when the executive declines to do so, it is exercising its take care clause authority. The take care clause says that the executive shall take care that the laws be faithfully executed. I think the laws include the Constitution. So I don't think the distinction offered by my colleague is appropriate. I think it would result in a significant incursion on the separation of powers between the legislature and the executive branch and would bring this, the Federal courts, into more controversies that have characteristics of inter-branch confrontation in which this Court has traditionally been very cautious. Ms. Jackson, before you sit down, I would like to note that you briefed and argued this case as Amika's Curiee at the invitation of the Court, and you have ably discharged your responsibility for which you have the gratitude of the Court. Thank you. Thank you. We'll now take a very short break and turn to the merits. Please, ladies and gentlemen. I meant that we would take a break, not the, we'll continue argument in the case on the merits. Mr. Clement. Mr. Chief Justice and may have pleased the Court. The issue of same-sex marriage certainly implicates profound and deeply held views on both sides of the issue. But the legal question on the merits before this Court is actually quite narrow. On the assumption that states have the constitutional option, either to define marriage in traditional terms, or to recognize same-sex marriages, or to adopt a compromise like civil unions, does the federal government have the same flexibility or must the federal government simply borrow the terms in state law? I would submit the basic principles of federalism suggests that as long as the federal government defines those terms solely for purposes of federal law, that the federal government has the choice to adopt a constitutionally permissible definition or to borrow the terms of the statute. Mr. Clement, the problem is that it would totally thwart the state's decision that there is a marriage between two people for the federal government then to come in and 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's set of attributes, one might well ask, what kind of marriage is this? And I think the answer to that, Justice Ginsburg, would be to say that that's a marriage under state law. And I think this Court's case is 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. And that's been true certainly in a number of situations under a number of statutes, so it's simply not the case that as long as you're married under state law, you absolutely are going to be treated as a matter of the state. How about the worse? Same thing. It's going to have a federal notion of divorce and it doesn't relate to what the state statute is. Well, we've never had that, Your Honor, and I think that there is a difference when it comes to divorce because with divorce uniquely, you could have the possibility that somebody's married to two different people for purposes of state law and federal law. But with the basic question of even whether to recognize the marriage or probably the best way to put it is just whether the federal law treats you as married for a particular purpose or not, there are always had been differences between the federal law treatment and the state law treatment, the federal treatment for example recognizes common law marriages in all states, whereas a lot of states don't recognize common law marriages, but federal law recognizes that for some purposes. The Social Security Act, I think it's a page four of our brief. And so only if the state recognizes it. No, I don't think that's true for purposes of that. There's a common law, federal, common law definition. That's my understanding. And as the best. I thought it was reversed that if the state law recognizes common law marriages, the federal. My understanding is that the federal law recognizes in the Social Security context, even if it doesn't. And in all events, there are other situations, immigration, contacts, tax consequences for tax consequences. If you get a divorce every December, you know, for tax consequences, the state may well recognize that divorce. The federal government has long said, look, we're not going to allow you to get a divorce every December just to get remarried in January, so you have a filing status that works for you that's more favorable to you. So the federal government has always created this somewhat distinctly. It always has its own efforts. And I do think for purposes of the federalism issue, it really matters that all DOMA does is take this term where it appears in federal law and define it for purposes of federal law. It would obviously be a radically different case if Congress had in 1996 decided to try to stop states from defining marriage in a particular way or dictate how they would decide it in that way. Suppose we have a applies to over what, 1100 federal laws, I think we were saying so it's not. I think there's quite a bit to your argument that if it's a tax deduction case, which is specific, whether or not, if Congress has the power, it can exercise it for the reason that it wants, like some marriage, it doesn't like, I suppose it can do that. But when it has 1100 laws, which in our society, it means that the federal government is intertwined with the citizens' day-to-day life, you are 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. Well, just to the Kennedy two points, first of all, the very fact that there are 1100 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 context where there's an independent federal power that supported that. Now, the second thing is the fact that DOMA affects all 1100 statutes at once is not really a sign of its irrationality. It's a sign that what it is, and all it is 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 1997. Well, but it's not really uniformity because it regulates only one aspect of marriage. It doesn't regulate all of marriage. Well, that's true, but I don't think that's a mark against it, for federalism purposes, and it addressed a particular issue at a point. Remember, in 1996, Congress is addressing this issue because they are thinking that state of a why through its judicial action is about to change the definition of marriage from a way that it had been defined in every jurisdiction in the United States. And what that meant is that when Congress passed every one of the statutes affected by DOMA's definition, the Congress that was passing that statute had in mind the traditional definition. And so Congress in 1996, at that point, says, the states are about to experiment with changing this. But the one thing we know is all these federal statutes were passed with the traditional definition in mind. And if rational basis is the test, it has to be rational for Congress, then, to say, well, we're going to reaffirm what this word has always meant for purposes of federal law. Suppose we look just at the estate tax provision that's at issue in this case, which provides especially 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? 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 provide uniform treatment of taxpayers across jurisdiction. And if you look at the brief that Senator Hatson and some other senators filed, they discussed this history. Because what was happening in 1948 when this provision was initially put into the 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 if you were in a common law state. And Congress didn't want to have an artificial incentive for states to move from common law to community property, and it wanted to treat citizens the same way, no matter what state they were in, so that said, will give a uniform federal deduction based on marriage. And I think what that shows is that when the federal government gets involved in the issue of marriage, it has a particularly cute interest in uniform treatment of people across state loans. So Ms. Windsor wants to point to the unfairness of the differential treatment of treating two New York married couples different. And of course, for purposes of New York law, that's exactly the right focus. But for purposes of federal law, it's much more rational for Congress to say, certainly a rational available choice for Congress to say, we want to treat the same sex couple in New York, the same way as the committed same sex couple in Oklahoma and treat them the same. Or even more to the point for purposes of the same. But that's begging the question, because you're treating the married couples differently. Well, you're saying that New York's married couples are different than Nebraska's? But the only way that out of a hat is there's a difference. The only way they're different is because of the way that state law treats them. And just to be clear how, you know, what this case is about and how sort of anomalous the treatment, the differential treatment of two states is, this is not a case that's based on a marriage license issued directly by the State of New York after 2011 when New York recognized same sex marriage. This is the status of Ms. Windsor as married depends on New York's recognition of an Ontario marriage certificate issued in 2007. Now, if you'd say it would be the same thing if the State passed a law, a Congress passes a law which says, well, there are some states they all used to require 18 as the age of consent. Now, a lot of them have gone to 17. So if you're 17 when you get married, then no tax deduction, no medical, no nothing. Or some state TETA residents require them to be years. Some have six months, some have four months, so Congress passes a law, says, well, unless you're there for a year, no medical deduction, no tax thing, no benefits of any kind, that that would be perfectly constitution. Wouldn't be arbitrary, wouldn't be random, wouldn't be capricious. Well, I guess I would say two things. I would say that the first question would be what's the relevant level of scrutiny, and I assume the level of scrutiny for the things that happen. No, I just want your bottom line. The bottom line here is we can imagine, you know, I can make them up all day. So can you? The difference is between states have nothing to do with anything. You know, residents requirements, they have a medical exam, we can think of them all day, with how old you are, and Congress just passes a law, which takes about, let's say, 30% of the people who are married in the United States and says, no tax deduction, no this, no that, no medical benefits, none of these good things, none of them, for about 20, 30% of all of them are married people. Could I do that? Again, I think the right way to analyze it would be, you know, is there any distinction drawn that implicates what level of scrutiny is implicated? If the level of scrutiny is rational basis, then my answer to you would be yes. They can do that. I mean, we have to talk about what the rational basis. No, there isn't any. I'm trying to think of examples where I just can't imagine what it is. Well, I think the uniform of the treatment of individuals. All right, so you're saying uniform treatment is good enough, no matter how odd it is, no matter how irrational. There is nothing but uniformity. We could take the, no matter, you see what I'm going? No, it's exactly where you're going, Justice Breyer. And obviously, every one of those cases would have to be decided on its own, but I do think there is a powerful interest when the Federal Government classifies the White House. There's a powerful interest in treatment. But once, the first part, every one of those cases has to be decided on its own. Okay? Now, what's special or on its own that distinguishes and thus makes rational or whatever basis you're going to have here, treating the gay marriage differently? Well, again, if we're, if we're coming at this from the premise that the States have the option to choose, and then we come at this from the perspective, the Congress is passing this, not in the vacuum, they're passing this in 1996. And what they're confronting in 1996 is the prospect that one state, through its judiciary, will adopt the same-sex marriage. And then, by operation of the full faith and credit law, that will apply to any, any couple that wants to go there. And the state that's thinking about doing this is who I, is a very nice place to go and get married. And so, Congress's word, people are going to go there, go back to their home jurisdictions, insist on the recognition in their home jurisdictions of their same-sex marriage in who I, and then the Federal Government will borrow that definition. And therefore, by the operation of one state's state judiciary, same-sex marriage is basically going to be decided to be recognized throughout the country. And what Congress says is, wait a minute, let's take a time out here. This is a redefinition of an age-old institution. Let's take a more cautious approach where every sovereign gets to do this for themselves. And so, Section 2 of DOMA says we're going to make sure that, on full faith and credit principles, that a decision of one state- is sort of going in a circle. You're saying, you're saying, we can create the special category, men and women, because the states have an interest and traditional marriage that they're trying to protect. How do you get the Federal Government to have the right to create categories of that type based on an interest that's not there, but based on an interest that belongs to the states? Well, at least two responses to that, Justice Sotomayor. First is that one interest that supports the Federal Government's definition of this term is whatever Federal interest justifies the underlying statute in which it appears. So in every one of these statutes that are affected by assumption, there's some Article 1 section. So the word- they can create a class they don't like here or most actuals, or a class that they consider is suspect in the marriage category, and they can create that class and decide benefits on that basis. When they themselves have the new interest in the actual institution of marriage as marriage, the states control that. Just to clarify, Justice Sotomayor, I'm not suggesting that the Federal Government has any special authority to recognize traditional marriage. So if the assumption is that nobody can do it, if the states can't do it either, then the Federal Government can't do it. So the Federal Government- I'm assuming a state- So then I assume the states can. So what- Then what it creates to run a Federal Government has sort of two sets of authorities that give it sort of a legitimate interest to wait into this debate. Now one is whatever authority gives rise to the underlying statute. The second and complementary authority is that, you know, the Federal Government recognizes that it's a big player in the world, that it has a lot of programs that might give states and Senives to change the rules one way or another. And the best way- One way to stay out of the debate, let just the states develop this, and let the Democratic process deal with this, is to just say, look, we're going to stick with what we've always had, which is traditional definition. We're not going to create a regime that gives people an incentive and point to Federal law and say, well, another reason you should have same-sex marriage is then you'll get a state tax deduction. They just stayed out of it. But I see an illogic in your argument. I hadn't thought of the relation between Section 2 and Section 3 in a way you just said. You said, when that Section 2 was in order to help the states, the Congress wanted to help states. But then Section 3, the Congress doesn't help the states, which have come to the conclusion that gay marriage is lawful. So that's inconsistent. No, no, they treat them- Which is to say they are preserving, they're helping the states in the sense of having each sovereign make this decision to come out. We're helping the states do if they do what we want them to, which is not consistent with the historic commitment of marriage and of questions of the rights of children to the state. With respect to Justice Glennady, 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 that get additional federal benefits. But things stay the same. And that's why- It's 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 task question. It's, as Justice Kennedy said, 1100 statutes and it affects every area of life. And so you would really diminishing what the state has said is marriage. You're saying, no state, there are two kinds of marriages, the full marriage and then the sort of skimmed milk marriage. With respect, Justice Ginsburg, that's not what the federal government is saying. The federal government is saying that within its own realm and 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. Mr. President, 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 suggests the following, which suggests 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 think that's 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. A couple of responses, Justice Kagan. First of all, I think I would take issue with premise. First of all, that this is such an unusual federal involvement on an issue like marriage. Look at historically, not only has the federal government defined marriage for its own purposes distinctly in the context of particular programs. It's also intervened in other areas, including in state paragogatives. I mean, there's a reason that four state constitutions include prohibition to the regime. It's because the federal Congress insisted on them. There's a reason that, in the wake of the Civil War and in reconstruction, Congress specifically wanted to provide benefits for spouses of freed slaves who fought for the use of it. In order to do it, it essentially had to create state law marriages. Because in the Confederacy, the slaves couldn't get married. So they developed their own state essentially, a federal sort of condition to define who was married under those laws. So where there are the needs in the past to get involved, the federal government has gotten involved. The other point I would make, but I also eventually want to get around to the animus point. But the other point I would make is, when you look at Congress doing something that is unusual, the deviates from the way they've proceeded in the past, you have to ask, well, what's there a good reason? And in a sense, you have to understand that in 1996, something's happening that is, in a sense, forcing Congress to choose between its historic practice of deferring to the States and its historic practice of preferring uniformity. 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. It's as fine. We can defer. Okay, 1996. 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? Is 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's never been your approach, especially under rational basis or even rational basis plus, if that's what you're suggesting. This Court, even when it's applying more heightened scrutiny, the O'Brien-based we cite. It suggests, look, we're not going to strike down a statute just because a couple of legislatures may have had an improper motive. We're going to look at an under rational basis. We look as there any rational basis for the statute. And so, sure, the House report says some things that 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. And in a situation where an unelected state judiciary in Hawaii is on the verge of deciding this highly contentious, highly divisive issue for everyone, for the states, for the other states, and for the federal government by borrowers principles, it makes sense. Well, but your statute applies also to states where the voters have decided it. That's true, but again, I don't know that that fact alone makes it irrational, and I suppose if that's what you think, but- Well, just to be clear, I think your answer is fair on rationality. We switch now from federal power to rationality. There is a difference. We're talking, I think we're assuming now that there's federal power and asking about the degree of scrutiny that applies to it. Or are we going back to whether there's a federal power? Well, I think there is a federal power because DOMA doesn't define any term that appears anywhere other than in a federal statute that we assume that there's federal power for, and if there's not federal power for the statutes in which these terms appear, that's a problem independent of DOMA, but it's not a DOMA problem. So I'll assume we have federal power. I think it is a DOMA problem. The question is whether or not the federal government under federalism scheme has the authority to regulate merits. And it doesn't have the authority to regulate marriages as such, but that's not what DOMA does. DOMA provides certain- DOMA defines a term as it appears in federal statutes. Many of those federal statutes provide benefits. Some of those federal statutes provide burdens. Some of those federal statutes provide disclosure obligations. It appears in lots of places. Congress could have achieved exactly what it achieved under Section 3 by exercising the term married from the United States Code, and replacing it with something more neutral. It could have said certified domestic units, and then defined this in exactly the way that Section 3, exactly the way DOMA defines marriage. Would that make a difference? In that instance, the federal government wouldn't be purporting to say who's married and who's not married, it would be saying who is entitled to various federal benefits and burdens based on a federal definition. That would make no difference, Justice Alito. It does, the hypothetical, helpfully demonstrates, though, that when the federal government is defining this term as it appears in the federal code, it is not regulating marriage as such, and it is important to recognize that people that are married in their state based on either the legislative acts or by judicial recognition remain married for purposes of state law. You started by, I think, agreeing, maybe not, that uniformity in and of itself with nothing else is a lot likely to prove sufficient, at least if it's rational basis plus. And why? Because we can think of weird categories that are uniform. So you say, look at it on the merits. Now, that's where you're beginning to get. And so far what I've heard is, well, looking at it on the merits, there's certainly a lot of harms. And on the plus side, what there is is one, we don't want courts deciding this. But of course, as was just pointed out, in some states it's not courts, it's the voters. And then you say, ah, but we want to, there are too many courts deciding it. Now, is too many courts might decide it? Now, what else is there? What else? I want to be able to have a list, you know, really specific things that you are saying justify this particular effort to achieve uniformity. And I want to be sure I'm not missing any. So far I've got those two I mentioned. What else? I didn't understand that courts were so central to your position. I thought you didn't want the voters in one state to dictate to other states. Any more than you would want the courts in one state to dictate to other states. Well, I think that's true, Justice Scalia. The point about courts, though, is, I mean, it's particularly relevant here. I mean, of course, the courts, they do dictate in respect of time, they would dictate in respect of age, they dictate in all respect to all kinds of things. And what I'm looking for is what, in your opinion, is special about this homosexual marriage that would justify this other than this kind of pure uniformity. Well, if there is such a thing. Let me just get on record that to take issue with one of the premises of this, which is where it's somehow rational basis plus land, because I would suggest strongly that three levels of scrutiny are enough. But in all events, if you're thinking about the justifications that defend this statute, that justify the statute, they're obviously in the brief. But it's uniformity, but it's not just the Congress picked this, you know, we need a uniform term. Let's pick something out of the air. They picked the traditional definition that they knew reflected the underlying judgments of every federal statute on the books at that point. They knew it was the definition that had been tried in every jurisdiction in the United States and hadn't been tried anywhere until 2004. And then, of course, it was, as they correctly predicted, a judicial decision. And in this context, in particular, they're thinking about an individual, I mean, this couple goes to Ontario, they get a married certificate. A couple could have, from Oklahoma, could have gotten, gone to Ontario, and got a married certificate. The same day, and gone back to Oklahoma. And from the federal law perspective, there is, it's certainly a rational basis in treating those two couples the same way. I'm a reserve of my time. Thank you, Mr. Comet. General Verily? Mr. Chief Justice, and may it please the Court. 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 a line of duty cannot receive the dignity and solace of an official notification of next of kin. I suppose 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? We think that wouldn't raise an equal protection problem like this statute does, Mr. Chief Justice. My point is, you don't think it would raise a federalism problem, either, do you? I don't think it would raise a federalism problem. But the key for the, for the, our purposes is that in addition to denying these fundamental important, fundamentally important benefits is who they're being denied too. So just to be clear, you don't think there's a federalism problem with what Congress has done in DOMA? No, we don't, Mr. Chief Justice. The question is, what is the constitutionality for equal protection purposes? And because it's unconstitutional and it's embedded into numerous federal statutes, those statutes will have an unconstitutional effect. But it's the equal protection violation from the perspective of the United States. You think Congress can use its powers to supersede the traditional authority and prerogative of the state's to regulate marriage in all respect. Congress can have a uniform definition of marriage that includes age, a kind of thing, winety, et cetera, et cetera. No, I'm not saying that, Your Honor. I think if Congress passed such a statute, then we'd have to consider how to defend it. Well, that's not. But then there is a federalism interest at stake, you know. But what you told the Chief Justice, there was not. Well, with respect to Section 3 of DOMA, the problem is an equal protection problem from the point of view of the United States. Yes, but General, surely the question of what the Federal interests are and whether those Federal interests should take account of the historic state prerogatives in this area is relevant to the equal protection inquiry. It's central to the inquiry, Justice Kagan. I completely agree with that point. And it would be central to the inquiry of Congress went the other way, too. Well, the difference is what Section 3 does is impose this exclusion from Federal benefits on a class that has undeniably been subject to a history of terrible discrimination on the basis of the Federal. I understand that. That's your equal protection argument. It's not very responsive to my concern that I'm trying to get an answer to. You don't think federalism concerns come into play at all in this, right? Well, I think the equal protection question would be different in the other circumstance. That's a matter of, I know the equal board, that's an argument. But the Federalism concerns come into play in the following way. And that the, Mr. Clement has made the argument that, look, whatever states can do in terms of recognizing marriage or not recognizing marriage, the Federal government has commensurate authority to do or not do. We don't think that's right as a matter of our equal protection analysis because we don't think the Federal government should be thought of as the 51st state. Now, as we told the Court yesterday, we believe heightened scrutiny ought to apply even to the state decisions. But you're insisting that we get to a very fundamental question about equal protection. But we don't do that unless we assume that the law is valid otherwise to begin with. And we're asking is that valid otherwise? Is what is the Federal interest in enacting this statute and is it a valid Federal interest assuming, but before we get to the equal protection analysis? No. We think whatever the outer bounds of the Federal government's authority, and there certainly are outer bounds, would be, apart from the equal protection violation, we don't think that section 3, apart from equal protection analysis, raises a Federalism problem. But we do think the Federalism analysis does play into the equal protection analysis because the Federal government is not the 51st state for purposes of the interest that Mr. Clement has identified in the back. Could I take you back to the example that you began with where a member of the military is injured? So let's say three soldiers are injured and they're all in same-sex relationships. And in each instance, the other partner in this relationship wants to visit the soldier in a hospital. The first is a spouse in a state that allows same-sex marriage. The second is a domestic partner in a state that allows that, but not same-sex marriage. The third is in an equally committed loving relationship in a state that doesn't involve either. Now, your argument is that under Federal law, the first would be admitted, should be admitted, but the other two would be kept out. The question in the case, Justice Alito, is whether Congress has a sufficiently persuasive justification for the exclusion that it has imposed. And it does not. The only way in which the Black's arguments for the Constitutionality of the statute have any prospect of being upheld is if the Court adopts the minimal rationality standard of leopards. But if I could just take you back to the example, your position seems to be, yes, one gets in to stay out, even though your legal arguments would lead to the conclusion that they all should be treated. The question before the Court is whether the exclusion that DOMA imposes violates equal protection, and it does violate equal protection because you can't treat this as though it were just a distinction between optometrist and optomologist as the leoptical case did. This is a different kind of a situation because the discrimination here is being visited on a group that has historically been subjected to terrible discrimination on the basis of a person. That's the same in the example that he just gave you. The discrimination would have been visited on the same group, and you say, there, it's okay. Well, no, I didn't say that. It would be subject equal protection analysis, certainly, and there might be a problem. You think that's bad as well, but all three of those have to be treated the same. Well, despite State law, by my actions. They'd have to be analyzed under equal protection principles, but whatever is true about the other situations, in a situation in which the couple is lawfully married for purposes of State law, and the exclusion as a result of DOMA itself, the exclusion has to be justified under this Court's equal protection analysis in DOMA as he did it. You think, I think from your brief yesterday and today, that on some level sexual orientation should be looked at on an intermediate standard of scrutiny? Yes, Your Honor. All right, heightened in some way. Going back to the chief's question about a law that was passed recognizing common law, heterosexual, homosexual marriages. I think even under your theory, that might be suspect, because that law might be suspect under equal protection, because once we say sexual orientation is suspect, it would be suspect whether it's homosexual or heterosexual. A lot of favors homosexuals. It would be suspect because it's based on sexual orientation. You would have to impose the heightened scrutiny equal protection. Exactly. And so in when we decided race was a suspect class, people who are not blacks have received scrutiny on whether the use of race as a class, whether they're wider or black, is justified by a compelling interest. That's certainly true, Your Honor. If I could turn to the interest that black is actually identified as supporting the statute, I think they're, I think you can see what the problem is here. Now, this statute is not called the Federal Uniform Marriage Benefits Act. It's called the Defense of Marriage Act. And the reason for that is because the statute is not directed at uniformity in the administration of federal benefits. All, there's two equally uniform systems, the system of respecting the state choices, and the system of that black is advocating here. And what blacks got to do in order to satisfy equal protection scrutiny is justify the choice between one and the other. And the difference between the two is that the Section 3 choice is a choice that, Section 3 choice is a choice that discriminates. And so it's not simply a matter of sufficient to say, well, uniformity is enough. Section 3 discriminates. And what's so is, as soon as one State adopted same-sex marriage, the definition of marriage throughout the Federal Code had to change, because there's no doubt that up until that point, every time Congress said marriage, they understood that they were acting under the traditional definition of marriage. Well, I don't know, Mr. Chief Justice, why you wouldn't assume that what Congress was doing when it enacted a statute, a particular statute that had to word marriage, and it was assuming that the normal rule that applies in the vast majority of circumstances of deference to the State definition of marriage would be the operative principle. So you don't think that when Congress said marriage in every one of these provisions, and they had in mind same-sex marriages? No. But they may well have had in mind that deferring to the normal State definition of marriage, whatever it is, not that they were making a specific choice that my friends suggest they were. But whatever is the case, when Congress enacted DOMA, that choice of exclusion has to be justified under appropriate equal protection principles. And so the issue of uniformity just doesn't get you there, because there's no uniformity advantage to Section 3 of DOMA as opposed to the traditional rule. The issue of administration doesn't get you there. I mean, at a very basic level, administrative concerns ought not be an important enough interest to justify this kind of discrimination under the equal protection clause. But even if you look at them, there are no genuine administrative benefits to DOMA. If anything, DOMA Section 3 of DOMA makes federal administration more difficult, because now the federal government has to look behind valid State marriage licenses and see whether they are about State marriages that are out of compliance with DOMA. It's an additional administrative burden, so there's no administrative advantage to be gained here by what Congress sought to achieve. And the fundamental reality of it is, and I think the House report makes this glaringly clear, is that DOMA was not enacted for any purpose of uniformity, administration, caution, pausing any of that. It was enacted to exclude same-sex lawfully married couples from federal benefit regimes based on a conclusion that was driven by moral disapproval. It is quite clear and black and white in the pages of the House report, which we cite on page 38. So that was the view of the 84 senators who voted in favor of it and the President who signed it. They were motivated by animus. No, Mr. Chief Justice, we quoted the Garrett concurrence in our brief, and I think there's a lot of wisdom there, that there may well not have been animus or hostility. It may well have been what Garrett described as the simple want of careful reflection or an instinctive response to a class of people, a group of people who we perceive as alien or other, but whatever the explanation, whether it's animus, whether it's that more subtle, more unthinking, more reflective kind of discrimination, section three is discrimination. And I think it's time for the Court to recognize that this discrimination, excluding lawfully married gay and lesbian couples from federal benefits, cannot be reconciled with our fundamental commitment to equal treatment under law. This is discrimination in its most very basic aspect, and the House report, whether, and I certainly would not suggest that it was universally motivated by something other than goodwill, but the reality is that it was an expression of moral disapproval of exactly the kind that this Court said in Lawrence would not justify the law that was struck down. General, your bottom line is it's an equal protection violation for the federal government in all states as well. Yes, you know, we took the position, we took yesterday with respect to marriage, it would be in the analysis of the question. Yesterday, but it didn't make to limit this to this case, these would be the federal government did not. Well, as we said yesterday, we think it's an open question with respect to state recognition of marriage, and they may well be able to advance interests. They may be able to advance interests, I shouldn't say may well, because I do think it would be difficult as we said yesterday. They may be able to advance interests that would satisfy heightened scrutiny and justify non-recognition. But here, the federal government is not in the same position, because as Black concedes, the federal government at the most can act at the margins in influencing these decisions about marriage and child wearing at the state level. And the second circuit on the first circuit both concluded that there's no connection at all, and that's of course because Section 3 doesn't make it any more likely that unmarried men and women in states that unmarried women in states. And the elimination of Section 3 wouldn't make it any less likely that unmarried men and women are going to get married. It doesn't have any effect at all, it doesn't have any connection at all, so it's not at the margins. There's no interest at all at this in Delming and Promoting. If there's no interest, I mean, I'm back. We were a yes today. It seems to me for getting your preferable argument, it's a violation of equal protection everywhere. Well, if it is, then all states have to have something like Pax. And if they have to have something like Pax, then you say then they also have to allow marriage. I say then are you not arguing they all have to allow marriage? And then you say no. All right, so at that point, I get right. And I'm somewhat... What a point here, Justice Breyer, is that whatever, may have been interesting, whatever the issue is, whatever the outcome is with respect to states and marriage, that the federal government's interest in advancing those justifications through Section 3 of Delming is so attenuated that two federal courts of appeals have seen it as non-existent, and it cannot justify Section 3. Thank you, General. Just a moment. 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. The ex-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 accusal statutes. And my client was treated as unmarried when her spouse passed away so that she had to pay $363,000 in a state taxes on the property that they had accumulated during their 44 years together. Could I ask you the same question I asked that solicitor general, do you think there would be a problem if Congress went the other way, federalism problem? Obviously, you don't think there's an equal protection problem, 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. Well, obviously with respect to marriage, the federal government has always used the state definitions. And I think what you're, the 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. 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? I think the question under the equal protection clauses is what the distinction is. No, no, I know that you're following the lead of this solicitor general in returning to the equal protection clause every time I ask the federalism question. Is there any problem under federalism principles? With the federal government. 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. It has certainly been argued in this case by others that whether or not that's in the enumerated powers of the federal government. For the reason just as 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. I don't understand your answer. Your answer yes or no. Is there a federalism problem with that or isn't there a federalism? 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 could have its own definition of marriage I think would be very closely argued whether that's outside the enumerated powers. Well, all these statutes use the term marriage and the federal government says in all of these statutes when it says marriage it includes same-sex couples. Whether the state acknowledges them to be married or not. But I don't know if that would work because they wouldn't be- The power to marry people is the power that rests with the states. The federal government doesn't issue marriage licenses. It never has. No, 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. That's what it says. How long is the people- And do that? As long as people were valiantly married under state law and met the requirements of state law to get married- No, no, no, no, no. I'm not sure that the federal government has to answer your question just to Scalia. I'm not sure that the federal government could create a new federal marriage that would be some kind of marriage that states don't permit. Well, let me get to the question I asked Mr. Clement. It just gets rid of the word marriage. It takes it out of the U.S. code completely, substitute something else and defines it as same-sex couples. Yes, surely it can do that. Yes, that would not be based on the state- So it's just the word marriage. It's just the fact that they use this term marriage. 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 his marriage. The federal government, I think we could decide to change that if it wanted and somehow very strange for all 1100 laws, but for certain programs to have different requirements other than marriage. And that would be constitutional or unconstitutional depending on the distinction. 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 state of residence of your client and her partner spouse. Was it New York? Was it some other state where same-sex marriage would not have been recognized? And suppose the state court said the state of residence is a state where it's not recognized. Would you not have essentially the same equal protection argument there that you have now? 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, and one of which has a constitutional amendment and a state constitutional amendment, and one of the spouses dies, they would not, since a state tax is determined 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're 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. Just if I could follow up with one question. What if 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 that be discrimination on the basis of sexual orientation? What would be the level of scrutiny would it survive? That would be certainly a different case, it would 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, it should be a rational basis, and the question would be what the state interests were, and not allowing couples, for example, 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 for my friend. Any legitimate difference between made, made, re-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 three 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 not. 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 K. K. Well, what do you think of his argument that I heard was to put the other side, at least one part, that as I understand it, to 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. The way to stay out of it is to go with the traditional thing. I mean, that's an argument. So your answer to that argument is what? I think it's an incorrect argument, just a spire for this week. I understand you do. I'd like to know the reason. Of course. Congress did not stay out of it. Section three of Doma is not staying out of it. Section three 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 up, couples who are already married and treating them as unmarried for purposes of the Federal law, 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. Now the discrimination is not the sexual orientation, but on a class of marriage. Is that what you're? It's a class of married couples. So I pose the same question, I pose to the general, to you. Do you think there's a difference between that discrimination and the discrimination of states who say homosexuals can't get married? I think that it's their 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 to, and whatever the issues would be in those states would be what interests the states have. As opposed to here, what interests, and we think there is none, the Federal Government has. There is a 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 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 force-bower's decision, but this support has said was wrong not only at the time it was overruled and mourns, but was wrong when it was decided. So, 84 is the same question I asked before. 84 senators base their vote on moral disapproval of gay people? No, I think what's 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 was no constitutionally permissible distinction. Well, does that mean times can blind? Does that mean they did not base their votes on moral disapproval? No, some clearly did. I think it was based on an understanding that gay, that 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 the 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 of gay people in their eyes. Why are you so confident in that judgment? How many states permit gay couples to marry? Today, nine years. And so there has been this sea change between now and 1996. I think with respect to the understanding of gay people in their relationship, there has been a sea change, Your Honor. How many states have civil unions now? I believe it's, that was, we were discussing the ideas eight or nine I think. And how many had it in 1996? I was much, much, much fewer at the time. I don't have that number, Justice Ginsburg, I apologize. 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. I disagree with that, Mr. Chief Justice. I think the sea change has to do just as was discussed in the Bowers and Lawrence with an understanding that there is no difference. There is no fundamental difference that could justify this kind of courticate, a categorical discrimination between gay couples. You don't doubt that the law be supporting the enactment of same-sex marriage laws in different states is politically powerful, do you? With respect to that categorization of the term for purposes of high-incurring, I would, Your Honor. I don't really. As far as I can tell, political figures are falling over themselves to endorse your side of the case. 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 of 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 women were at the time of front-to-air. 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 groups on your side of the case. So flip the language of the House of Court, 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 than the relationships of the straight married couples. I don't think that- Well, I understand that. I'm just trying to see where that moral understanding came from, if not the political effectiveness of particular groups. I think it came, again, very similar to what you saw between powers and norms. I think it came to a societal understanding. I don't believe that a societal understanding came strictly through political power, and I don't think that gay people today have political power. As vast this Court has used that term in connection with the heightened scrutiny analysis. Thank you, Ms. Kaplan. Mr. Clement, you have three minutes remaining. Thank you, Mr. Chief Justice. Excuse me, just three points in rebuttal. First of all, I was not surprised here that the solicitor general concede that there's no unique federalism problem with DOMA, because in the GIL litigation in the first circuit, the State of Massachusetts, the Commonwealth of Massachusetts, in both the 10th 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 question suggested. If ten years from now, there are only nine states left, and Congress wants to adopt a uniform federal law solely for federal law purposes, going the other way, it is fully entitled to do that, it has the power to do that. I would say also that a government has conceded in this litigation that there is a rational basis for the statute, something else to keep in mind. I would also say that this provision is not so unique, the very next provision in the Dix area. Mr. Clement, it is a problem in your breathing. You seem to say, and repeated today, there are three years, 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, re-re-re-re, the Court did something that had never done in the history of the country under rational basis. There was no intermediate here, then. It was rational basis. And yet, the Court said this is ranked discrimination, and it fails. And Justice Ginsburg, I mean, applying rational basis to DOMA, I think that there are many rational basis 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 interest 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, that they can lose their benefits. The Federal Government uniquely, unlike the 50 states, can say, well, that doesn't make any sense, we're going to have the same rule. We don't want somebody, if they're going to be transferred in the military, from West Point to Fort Sill in Oklahoma to resist the transfer because they're going to lose some benefits. It makes sense to have a uniform federal rule for the Federal Government. It's 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 Constitutional law, and the fact that it's the same rule that the Constitutional law is the most important thing to do. It's not what you do when you're 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 Roma, and they got the same answer, it's Constitution. 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's been a sea change is a combination of political power, it's defined by the support's cases, it's getting the attention of lawmen, for 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're right. That's going on across the country. Colorado, the state that brought you amendment two, has just recognized civil unions. Maine, that was pointed to in the record in this case as being evidence, 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, allowed the democratic process to continue. Thank you. Thank you, Council. Council, the case is submitted

Legal Case Summary

United States v. Windsor

Date Argued: Wed Mar 27 2013

Case Number:

Docket Number: 437034

Judges:Not available

Duration: N/A minutes

Court Name:

Case Summary

United States v. Windsor

Oral Audio Transcript(Beta version)