Excerpts From Oral Arguments In Defense Of Marriage Act Case

Mar 27, 2013
Originally published on March 27, 2013 9:55 pm
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Now, we're going to take a few minutes to listen to some of today's examination of the Defense of Marriage Act in the Supreme Court. The court usually doesn't provide such speedy access to audio, so this is a rare opportunity to hear the arguments on the same day they happened.


We'll begin with lawyer Paul Clement, who was speaking in defense of the law. He argued that the federal government has the right to define marriage for the purposes of federal law and that DOMA does not harm states that allows same-sex marriage. We'll hear Justice Ruth Bader Ginsburg challenge him on that. First, here's Paul Clement.

PAUL CLEMENT: No state loses any benefits by recognizing same-sex marriage. Things stay the same. What they don't do is they don't sort of open up an additional class of beneficiaries under their state law for - that get additional federal benefits. But things stay the same. And that's why in this sense...

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


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

SIEGEL: That was lawyer Paul Clement arguing today on behalf of House Republicans defending DOMA.

CORNISH: Now, here's an exchange between Roberta Kaplan, the lawyer representing plaintiff Edith Windsor, and Justice Antonin Scalia on the tension between state's rights and the powers of the federal government.

ROBERTA KAPLAN: 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 can have its own definition of marriage, I think, would be - there's a - it'd be very closely argued whether that's outside the enumerated...

JUSTICE ANTONIN SCALIA: Well, it's just - 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.

KAPLAN: But that - I don't know if that would work because they wouldn't...

SCALIA: Never mind whether it would work. I don't care if it works.


SCALIA: Does it create a federalism problem?

KAPLAN: Look, the power to marry people is a power that rests with the states. The federal government...


KAPLAN: ...doesn't issue marriage licenses. It never has.

SCALIA: Well, 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. If that's what it says, can it do that?

KAPLAN: As long as the people were validly married under state law and met the requirements of state law to get married...

SCALIA: No, no, no, no, no. It...

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

SIEGEL: That spirited exchange between lawyer Roberta Kaplan and Justice Scalia in oral arguments today at the U.S. Supreme Court. Transcript provided by NPR, Copyright NPR.