What the justices said in Supreme Court arguments on the Defense of Marriage Act (Chart, Audio, PDF)

The name of the case is United States v. Windsor, 12-307. It challenges the 1996 law that bars federal recognition of same-sex marriages, which prevents those couples from getting tax breaks and other benefits for married couples. Does it violate the Fifth Amendment (which is the guarantee of equal protection of the law) for the federal government not to recognize gay couples legally married under the laws of their state?

But with the Supreme Court, things are rarely straightforward. The Obama administration has decided not to defend the law. So now the court also has to decide whether that means it doesn't have jurisdiction to rule on the case and whether House Republicans can defend the law instead.

The background: Edith Windsor sued because, as she put it: "I couldn't believe that our government would charge me $350,000 because I was married to a woman and not a man." When her spouse died, Windsor had to pay federal estate taxes that wouldn't have been required if her marriage had been recognized by the government.

What other courts have ruled: Lower courts have ruled in Windsor's favor, saying the part of the Defense of Marriage Act that defines marriage as "only a union between one man and one woman" is unconstitutional.

RELATED: Prop 8, DOMA arguments end 2 days of same-sex marriage cases before Supreme Court (Photos)

Below are some of the major issues discussed during the hearing with corresponding page numbers to read more. You can also listen to the complete oral arguments and read a full transcript below.

justice arguments

John Roberts
  • On Obama's point of view and enforcement: "And if [Obama] has made a determination that executing the law by enforcing the terms is unconstitutional, I don't see why he doesn't have the courage of his convictions and execute not only the statute, but do it consistent with his view of the Constitution, rather than saying, oh, we'll wait till the Supreme Court tells us we have no choice." (Page 12)
  • On the "sea change" of views on same-sex couples, questioning Kaplan: "I suppose the sea change has a lot to do with the political force and effectiveness of people representing, supporting your [pro-same-sex marriage] side of the case? ... As far as I can tell, political figures are falling over themselves to endorse your [pro-same-sex marriage] side of the case." (Pages 106-107)

Antonin Scalia
  • On the appeal itself: "So when Congress enacts a 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?" (Page 24)
  • On the "sea change" in attitude toward gay marriage: "Why are you so confident in that judgement?" (Page 106)

Anthony Kennedy
  • On the appeal itself: “It seems to me there – there's injury here.” (Page 13)
  • To Clement: "But when it has 1,100 laws, which in our society means that the Federal Government is intertwined with the citizens' day-to-day life, you are at – at real risk of running in conflict with what has always been thought to be the essence of the State police power, which is to regulate marriage, divorce, custody." (Page 59)

Clarence Thomas
  • As is his custom, he made no comments.

Ruth Bader Ginsburg
  • On the analogy of marriage as different types of "milk", to Clement: "They're not – they're not a question of additional benefits. I mean, they touch every aspect of life. Your partner is sick. Social Security. I mean, it's pervasive. It's not as though, well, there's this little Federal sphere and it's only a tax question." (Page 71)
  • She went on: "You're saying, no, State said two kinds of marriage; the full marriage, and then this sort of skim milk marriage." (Page 71)

Stephen Breyer
  • On the difference between states, to Clement: "Differences between States have nothing to do with anything, you know, residence requirements, whether you have a medical exam, whether – we can think them up all day – how old you are. And Congress just passes a law which takes about, let's say, 30 percent of the people who are married in the United States and says no tax deductions, no this, no that, no medical – medical benefits, none much these good things, none of them for about 20, 30 percent of all married people. Can they do that? ... No, there isn't any [rational basis]." (Pages 64-65)

Samuel Alito
  • On terminology: "Well, Congress could have achieved exactly what it achieved under Section 3 by excising 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 same way that Section 3 – exactly the way DOMA defines "marriage." Would that make a difference?" (Pages 76-77)

Sonia Sotomayor
  • On terminology to Clement: "But what gives the federal government the right to be concerned at all about what the definition of marriage is? Sort of going in a circle. You're saying – you're saying, we can create this special category – men and women – because the States have an interest in 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?" (Pages 67-68)
  • On States and classes: "So they can create a class they don't like – here, homosexuals – 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 no interest in the actual institution of marriage as married. The State's control that." (Page 68)

Elena Kagan
  • To Jackson: "...we have injury here in the most classic, most concrete sense. There's $300,000 that's going to come out of the Government's treasury if this decision is upheld, and it won't if it isn't. Now the Government is willing to pay that $300,000, would be happy to pay that $300,000, but whether the Government is happy or sad to pay that $300,000, the Government is still paying the $300,000, which in the usual set of circumstances is the classic Article III injury." (Page 14)
  • On Congress and prejudice: "...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?" (Page 72)

Sources: SupremeCourtUS.gov, NPR


Listen to the arguments: Listen to the oral arguments and comment on the parts that affect you or that you found interesting. Just type your thoughts into the box that says "Add your comment" and hit the post button.


Read the transcript and notes: Click the "Document" tab to read the transcript in full. To see highlights, click "Notes."

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