proposition 8. here is "the baltimore sun." they say justices show signs of their normal split and fear of going too far too fast. and then "the new york times" this morning says justices take same-sexbe wrong for marriage ruling. >> the procedural protections. right. >> a look at some of the headlines from newspapers around the country covering the same- sex marriage issue. as we continue to look outside of the supreme court today, the nine justices did date the doma issue we are waiting for nancy pelosi holding a briefing to

discuss same-sex marriage.

>> our live coverage continues outside of the supreme court today has the supreme court justices debated the defense of marriage act. i do expect to have the oral arguments from the deliberations today. that will happen about 2 p.m. eastern. we will try to bring that to you along with your phone calls, e-mails and weeks. we are also witty remarks from house minority leader nancy pelosi. she is in the u.s. capitol and she will be talking about what the supreme court did today. we will bring you that when it gets underway.

[captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2013]

[chanting] >> good afternoon. that was pretty exciting this morning. it was really, i believe, to the five preceding -- dignified proceeding. the questions that were asked by the justices i thought were very -- evoked information and

responses that i think were very in. -- i think were very constructive. this is as big as our constitution, as big as our asntry at self, something personal as marriage in our , the dream of same-sex parties. i had the privilege of being there with karen and amy. karen is a federal employee and she has a case at the court about whether her wife amy can get benefits as a spouse as a federal employee. she was married in that window 8 tookifornia before prop eight away the opportunity to continue weddings in california.

on the basis of what i heard, the questions of the justices, the response of the process offense -- of the participants, i am very confident that dilma will be struck down. will be struck down. it does not appear to have any justification for being. i should probably save first, full protection of all people in our country. been al protection has principal that our country was founded on, that our constitution was written on. and i think, on the basis of the debate going back and forth, is it about equal protection or irrational races come on either score, the arguments, the debates seemed to favor striking down doma.

justices made the point on a ,umber of occasions that, say over a thousand laws in the books and regulations that relate to marriage that do not give equal protection to people who are married in the same-sex marriage. they used the word homosexual marriage. that is the word that they used. you will hear the report for the sin. .- pretty soon sitting there with amy and karen, like i said, this is as big as our country, as big as our constitution, as big as equal protection to the world, it's as personal as every family. and to sit there with them and -- you have probably seen edie windsor.

she is the aggrieved party in the case that is coming before the supreme court. i'm not sure that is a technical term. maybe the federal government is the aggrieved party if the court strikes down doma and they have to pay her back the taxes, over $300,000 that she had to pay when her spouse died because it was a same-sex marriage. her spouse died and the internal revenue service did not recognize that this was a married couple. edie windsor is a very courageous woman. it was a joy to see her sitting there in the court, hel and held high about her marriage and the different she is making for other people as well as for herself. and, of course, having amy and karen in the courtroom. you may see that happily

married couple doing just that. it was thrilling, i have to say. how does the fight for marriage rights compare with the initial fight in the 1970s? >> all of those were very important at the time. the subject tested the, whether it was aids funding and the rest, it was always in the issue of discrimination, because it was to end discrimination against people with hiv and aids. one of the first issues that i came here in 54 when i came over 25 years ago was the hate crimes legislation, again, to make sure people knew that it was very wrong to harm people on the basis of race, religion, sexual

orientation. and then the other part of this, of course, it's a long fight for us. with president obama in office, we were able to repeal don't ask/don't tell. and we were able to get military families what they need. hopefully, doma will be struck down, but we will have work to do. i hope all of these people who are coming out in favor of marriage equality will be there for us for equal -- for employment equality, too. what is for me personally gratifying is that coming our community, we have a large gay community, gay, lesbian, transgender, bisexual community. that we don't know them that way.

we know them as being part of our community, whether it's the theomy, the social fabric, healthcare providers or leaders -- in every aspect of a community's life. over the years, one of the questions i would be asked, especially when i became part of the leadership, when i first became quick and after that, one of the first questions that a journalist asked me would be do you support gay marriage? and i would always say that i support gay marriage. i don't believe in dissemination kind. kind and -- of any and it was like we have labeled you. it was a badge of honor for me. now it's a badge of honor for a lot of people that, for a long time, it was something that we knew was inevitable. from our beautiful place in san francisco, the city of st.

francis, we knew it was inevitable that all of this would happen. it was inconceivable to others that it would. and it was our job to use whatever influence we could have to shorten the distance between the inevitable and inconceivable. and i think that is what is happening at the court because of many people's courage, especially those directly and personally affected. yesterday, i had gavin newsom as one of our attendees, people who have been working on this. jim parnell, the first openly gay ambassador, all of the san franciscans who have been in public service who have fought the fight. so it's pretty exciting. i feel pretty good. what i told you about but we won.3,

>> you got it right. >> i got it right. [laughter] next friday,day we can start all over again on that one. >> leadership has been so quiet on doma. >> you could say this about that question. --n you get the soundtrack is that what we are calling it? the audio -- [laughter] the soundtrack of the supreme court. [laughter] the soundtrack of the supremes. oh, you're too young. [laughter] anyway. what was really interesting to a spokesperson for doma.

what a stale role to play in life. but nonetheless, when he was up there, he was defending the house is standing on this issue periodsof the b;lag bipartisan legislative advisory group. first of all, it wasn't bipartisan. we showed up one day. three-two, the republicans voted to defend doma. never again did we need. that day. $500,000 and not in a bipartisan way. ballag as if title there was some bipartisan support on that. has spent about $3 million by now. so it is very strange.

i don't know if they are silent or if they are speaking with the taxpayers dollars being spent without benefit of votes dedicating it on a vote that says that blag having the vote, but not taking action. i think their behavior has been not a model for the future. let's put it that way. it has really been disappointing. it has such an impact not only on marriage equality families, but also on our whole country as to who we are. i don't know where they are on the subject. have you asked them?\ , $3 million speaks very loudly, especially $3 million that has gone forth without in a fit of votes in the so-called

bipartisan legislative advisory group. >> can we ask you on another subject? rex until we are finished with this, no. you hadously this week, senator rockefeller, warner, baggage and others. it took so long and why is this all coming out now on the democratic side? >> i have been there 25 years. so it did not take me long. here's the thing. question may take it to a little different place. his question kept coming up in the court. why is it that now all of these people are tripping each other -- tripping all over each other to come out for marriage bill passedn the there was bipartisan support for it?

was there animistic came up? they read a report from the house that said it was about morality. it was a little bit on the spirit inside. but he you painted everybody with that brush -- but you painted everybody with that brush. i think that what wasn't said part of i think that it, since then and now, many more family members have come forward -- whether it's somebody's sister, brother, uncle, mother, father, whatever it is -- have come forward with their interest in marriage equality. beenhat has since translated into our popular culture. whether it is tv or movies or whatever. we are in a different place. and it is a generational change as well. he look at the statistics and

you will see a generation gap in terms of approval of marriage equality and acceptance of marriage equality. people now -- somebody used the term there -- times can , one of justice kennedy's phrases on another case related to texas previously. but anyway, times can blind. whatever the public mood was the on the suppertime and also -- on the subject at the time and also a change in movement about this being about discrimination, about depriving people of eagle protection -- of equal protection, about not having a rational basis for the defense of marriage act.

do sometimes gets tired of hearing me say this. one of the questions that came up in the court today was the justices asked -- did the originators of doma at the time think that it was constitutional? to mr. clement claimed times that, oh, yes, they asked the administration, the justice department and the justice department said, three times, yes, it was constitutional. so that meant, you know, ok, why would you ask that question unless you find out the intent of the republican initiative at the time. what they didn't say, which was in my op-ed today in "usa today"

on the web, is that the republicans knew and they know right now that doma is not constitutional. in 2005 monday introduced a ill, respective marriage act, son of doma. for marriage act stated that, in the case of doma, the court did not have the right to judicial review, the right to review on a constitutionality of the act. in theld you pass a bill congress, in the house, that says the courts do not have the right to rule on the constitutionality of the bill if you thought it could withstand that test? because you don't think it can withstand that test. and that is why you engage in

what is called court stripping. stripping of the court of the right of judicial review. some at that time even said that marbury versus madison, a case that established judicial review, was wrongly decided. so that is what we are dealing with here. so they know that that was not constitutional. and that is what i would have what i would-- have responded. a boehner spokesperson said [indiscernible] >> when you pass a bill in the house, like the health care bill, we made it ironclad constitutional. you have the responsibility to

honor the constitution. that is the oath that president obama is up holding. you weigh equities. congress passes a bill. it's questionable in terms of constitutionality. there is no question about your oath to the constitution of the united states. and the behavior of the republicans in the house of representatives on the subject has been sober responsible. first of all, why in this time would you pass a bill that decreases -- that increases discrimination? they are voting in favor of more justice, not discrimination. why would you do such a thing in the first place. and then, when it is questioned in constitutionality, would you spend money to the tune of millions outside the regular order of how that money should

be spent to defend increasing discrimination in our society? it's just plain wrong. and given a choice, i think we would all say that we are honoring come as a president does, the constitution, not anything that has passed the house and has not passed the cost to shouting -- passed the test of constitutionality. [indiscernible] there has been some talk from senator reed and others about a gun bill in terms of the [indiscernible] he said the assault weapons ban will not be a part of this. [indiscernible] president then those in favor of gun control lose momentum with serious incidents

about whether the financial sector and others [indiscernible] and what they propose to do with the fiscal cliff intro to pass something? >> no, i don't think we have lost momentum. we could stay here more day so that we can get our work done more expeditiously. i have been to a number of states since this congress has gone in and many parts of different states. and the public is so far ahead of the congress on the subject. i believe that whatever passes in the congress now will not be the end of the day for this issue. reed, i respect enormously. he knows how to count votes. that i believe, when the public sentiment is very strong on the subject and we want to come out with the boldest, denominator

that we can get, -- boldest common denominator that we can get, when senator feinstein puts the bill forward and the public knows what is at stake, we will see what i the votes ar. it argues all the more strongly for having the toughest, best, most effective background checks. instead of-- diluting the background checks, withse we may not succeed the assault weapons ban, it's to make that even more effect if. -- more effective. harking back 20 years, i was one of the whips on the assault weapons ban then. it was tucked. we did not win the -- it was tough even then. we did not win the first time the bill came up. members knew, if they voted for

that in their district, it would be the end of their career in congress. but they did. they lost their election. they came back and they said, if it saves lives, it was worth losing my race to do that here is is a very big guilt for the public. then again, it's a legislative body and we have to go forward as boldly as we possibly can. , if an assault weapons ban isn't there, that that means that less will happen down the road. i think miller -- i think more should happen up the road as we go forward. but the interest that people have been jobs -- that is what we are here to do, restore confidence in our economy, restore confidence in the safety of our communities passing violence prevention act, confidence in who we are as a people, we are a nation of

immigrants passing an immigration act in the we have to do that expeditiously. but the longer these things go, some lack of urgency might set in on how strong it should be. i think we have to reverse that still assumption of the past and make the intensity only increase. of course, i come from california. supportthe people background checks. hunter's support background checks and it's just this congress that has to catch up with the american people on the subject of safety. and that raised me back to protect and defend, the oath that we take to defend the constitution and every guaranteed. i don't think it will be until june when we know what their

decision is. but i feel very confident having heard the debate. and really, the quite thoughtful questions of the justices. i won't give you a number. [laughter] >> your thoughts on the giants this year? >> threepete. [laughter] getting agreements familyping some of the the grievances [indiscernible] the question is how do these people still come in? secure our borders. that is our sovereign responsibility here in protect their workers. and we do that by not exploiting workers coming into the country.

, pathway tocation legalization and therefore citizenship. these are all parts of what has been our principles. they are house democratic caucus chair present those developed by our -- house democratic raucous principles developed by our hispanic contingency. is something that is being debated. i am not at liberty to say, because our group works with each other. they are not in the position to confirm or deny that they even exist. so i won't even say anything about what they are doing because i don't know. but i will say, at the end of the day, we still want family unification however we get to that place. an i am confident about

immigration bill, the gun bill can we just have to get the jobs legislation moving as well. americaeantime, make more american by ending discrimination by overturning the ill-conceived doma. thank you. >> thank you. >> remarks from house minority leader nancy pelosi addressing a number of issues are adding this briefing. immigration, gun legislation. congress is away on its two- week easter break. she was also on the scene when the supreme court debated the defense of marriage act emma indicating her -- indicating her support for striking down doma. , at 2 p.m. minutes eastern, the supreme court will feed it to us. we will include your phone calls and comments afterwards. while we wait for that to get

underway, we will hear reaction from attorneys this afternoon as they spoke to enter -- to reporters. we also have remarks from edith windsor who brought the case after she was faced with an estate tax bill of over $300,000 when her partner died. if she had been married to a man, she would not have faced the same charges.

>> [cheers and applause] "]hanting "edie >> good afternoon, everybody. i am director of the lgbt project at aclu am proud to be one of the counsel for edith windsor. we will have statements from a

series of people. roberta kaplan, who argued the case. emma carlin, who is a professor at stanford law school and his counsel in the case. from myself, from donna lieberman who is executive director of the new york civil liberties union. and then, what you're all waiting for, a statement from edith windsor and then we will take westerns. >> -- we will take questions. >> good afternoon. today's a role -- today's world arguments tells the lesson on why it is that we have a constitution, to bind us together as citizens of one nation, all of whom are guaranteed the equal protection of the law. and there is no one individual who better personifies the concept of equal protection than my client edie windsor. a few facts. edie windsor met her late spouse you'd aspire in the

early 1960s. they ring gauged to each other in 1967. take a moment and and about that. 1967. that was two years before the stonewall movement that led to the modern concept of equal rights for gay people. come about the self-esteem of the courage, the bravery, and the self-respect it took for two women in 1967 to become engaged. but the truly heroic part of edie windsor's life is what happened for the next 40 years. when people get married to each other, they give a traditional marriage vow. and that marriage vow is to have and to hold, to love in sickness and in health until death do us part. 12 years into their relationship, thea spire valid

a horrible disease of progressive multiple sclerosis. described it, that disease happen to the both of them. throughout her illness, as she went from hurricane to using a wheelchair to being only able to move one finger, they fought together to make sure that thea 's life changed in no way, that she continued to see her patients and to live the full life that she did. that is heroism. or orne of us, straight gay, would be so blessed and so lucky to have as a spouse edie windsor. so when i said that edie windsor personifies the concept of equal protection, she truly does. our constitution deserves edie windsor. and edie windsor deserves our constitution. thank you very much. [applause] >> roberta kaplan.

i argued the case. my name is pamela carlin. i am codirector of the cocounsel for ms. windsor. we came out of the front door of the supreme court. over that door is written the words "equal justice under law ." that is what we are asking for today. equal justice under federal law for all the legally married date couples in the united states. emmalked down 44 steps which coincidently is how many years edie windsor and thea spire spent together as a committed couple. and we ask for equal justice under law here. as you heard in the courtroom today, the evolution of gay people's rights in the supreme court has been a long road. in the 1960s, the supreme court upheld the exclusion of gay aliens from the united states.

in the 1980s, it upheld laws criminalizing intimate sexual behavior by gay couples. today, however, the supreme court has changed its understanding of the words of our cost to send and we are -- of our constitution and we are confident that in your times in the future that equal justice under the law will be a really valid he for -- a reality for gay people as straight people under the law. >> director of at the aclu.ect i want to say a few words about with the defense of marriage act does. we know that the government doesn't married people. the states married people. but we also know, whether you are married or not, it makes a efferen dax it makes a difference -- it makes a difference in federal laws. your social security benefits and your survivor benefits change a son whether you are

married or not, whether you get family medical leave to take care of your spouse depends on whether the drill government government recognizes that your spouse is your spouse here and veterans benefits change in taxes as well. at the same time, where marriage makes a difference, there are 130,000 married same-sex couples in the united states today. what oma says is that it requires the federal government to treat those couples as unmarried in each of those 1100 and federal context. that is what happened to cause what happened to edie. spent four decades together, in good times and in that come in sickness and in health, just like any other married couple. and for the federal government to pretend that their marriage didn't exist is unfair. it's un-american. and it's -- and it's

unconstitutional. >> i'm donna lieberman, executive director of the new york civil liberties union. i am proud to stand here today as part of team he edie windsor to topple the defense of marriage act. my state, the state of new york, as that's the rights of all couples -- respects the rights of all couples to marry. but so long as doma is on the books, these marriages are not truly equal in the federal government treats new york lesbian and gay families as if they don't even exist. it's time to put an end to doma and the two-tier system of marriage it has forced on our state. and it's time to make sure that the federal government treats marriages of all new yorkers with the dignity and respect and

equality they deserve. the federal government should never again be allowed to reduce the love of a married couple like edie and thea to the legal status of strangers. thank you. hi, i'm edie windsor. somebody wrote me a large speech which i won't make good that there are a couple of things i wanted to say. i wanted to tell you what marriage meant to me. it's kind of crazy. we lived together for 40 years. we were engaged with a circle diamond and because i wouldn't wear a ring because i was still in the closet. , ok,today an out lesbian who just sued the united states of america, which is kind of overwhelming for me. when my beautiful sparkling thea died, i was overcome with

grief. within a month, i was hospitalized with a heart attack. that is pretty common. it is usually look that as broken heart syndrome can in the midst of my grief, i realized that the federal government had been treating us like strangers and i paid a humongous estate tax if it meant selling a lot of stuff to do it. it wasn't easy. i live on a fixed income and it wasn't easy. many people ask me why get married? was 75 andd thea maybe we were older at that point. but the fact is that everybody treated us different. it turns out that marriage is different. i asked a number of long-range who havegay couples, gotten married, i asked them if it was a difference the next morning and the differences of -- and the answer is always yes. there is a huge difference. when our marriage of.

in "the new york times," we heard literally from hundreds , playmates and schoolmates and colleagues in relatives and colleagues all congratulating us because we were married. so it's a magic word. for anybody who doesn't understand why we wanted and why we needed it, ok, it is magic. i guess the only other thing i want to say, today is like a spectacular event for me. it is a lifetime kind of event. and i know that the spirit of my late spouse thea spire is right here watching and listening and would be very proud and happy of where we have come to. thank you all. >> [indiscernible] >> what was going through your mind?

>> i felt very serious. very serious. and listening carefully. hadhalfway deaf, but i hear things on and i listen to every word. >> how do you think it went in there? >> i'm not hearing. --hink it was great hearing i think it is great. i think the justices were gentle. they were direct and they asked all the right questions. but i didn't feel any hostility or any sense of inferiority. . felt we were very respected and i think it will be good. [laughter] how did you feel, especially

about chief justice roberts, with his questions about clinical power? >> i think the justices asked all of the questions we expected. we had good answers. and i will dot my clients question. i think it was good. >> do you think it will break down the law? >> again, we are very hopeful that they are. i am not in the business of addicting what any particular justice will do. but we are opal that they will confirm the decisions of the justices below. that theyare hopeful will confirm the decisions of the justices below. -- as i said before and as edie put it, it went well. it was good. >> what do you think about justices and their question about jurisdiction? >> as you probably know, the

court added those questions to the case here and they are very serious and technical questions. i think they are what would be expected, how they will resolve those technical questions erie it we feel -- technical questions. but we feel confident. and we think edie will get her money back from the federal government. >> how much sway do you think there will be in the justice delivery? why itink the reason has a lot of them wants on the court is that this is an incredibly unusual statute. it is not within our constitutional tradition to enact laws like doma. was it difficult to get into this space? >> i did not think that at all. i think the court understands it has the responsibility of

deciding on the constitutionality of national aspects. >> why have more people come around? >> edie wants to answer that. >> i think what happened is, at some point, somebody came out and said i'm gay. it gave a couple more people the guts to do it. and we all lived really behind that. as we increasingly came out, people saw that we did not have horns. people learn that we were their kids and their cousins and their friends, all of whom were coming out for the first time. grew toink it just where we were human beings like everybody else. and i really think that is what made the change.

i am talking to you freely. i would have been hiding in a closet 10 years ago. [laughter] >> what does it feel like to the here? can you believe that you are here? exuberant andd humbled. i am very humbled. great. >> we don't want to wait for the audio transcript. >> i didn't memorize everything that was said. i'm sorry. that doma is an extremely unusual statute did it cuts across all federal law. it affects 1100 different federal programs, from notification of the death of a spouse when someone dies -- it means that the spouse can't be properly notified and they cannot get the five on the coffin. it means that gay marriage couples do not get the benefits

a family federal ethical leave act. and it means that someone like edie windsor has to pay 360 thousand dollars estate tax bill just by virtue of the fact that her spouse happened to be gay. and that she happens to be gay. that is unconstitutional. it is unconstitutional no matter what the standard is of supply. >> do you believe the justices seem to be accepting a marriage is as a fact and it is a question of how rather than if? >> i'm not surprised. marriage for gay people is a fact. it is a fact in nice to its already. i don't think that it -- in nine states already. it should be the facts on the ground today. >> what about the point of

unequal nature. that seem to be one of the more emotional moments. >> i think that the court can't help but be affected by how the law has a redefinition of singling out, fencing off couples who are already married under federal law i think the justices are acutely aware of that. >> can you talk about the pin you are wearing? -- first of ea all, we were driving in a car and she said what would you do if you became engaged. and i worked with a bunch of people i loved. we went out together a lot. i never told the truth until five years ago when i finally told the truth. so thea said to me, what would

you do if you wanted to be engaged and you wore an engagement ring to work, what would people say? they would want to know who is he and where is he and when do we meet him. instead she gave me this pin which is a circle of diamonds .nstead of a diamond ring that's my pin. i'm going to try to excuse myself if everybody won't be mad at me. there are a lot of people there who came to see me and i want to go see them. > come this way.

>> the scene outside the u.s. supreme court on this wednesday, day two of oral arguments on the issue of gay marriage. yesterday was california's proposition 8 which restricts marriage between a man and a woman. in just a couple of minutes we'll take you inside the court. the media requesting same day release of the oral arguments. you'll have a chance to listen in its entirety.

it's runs just under two hours. today is about doma. it states marriage is a union between one man and one woman. it was signed into law by bill clinton in 1996 and the former president issued a statement on doma. the justices must decide whether it is consistent with the principles of a nation that honors quality and justice above all and is therefore constitutional. as the president who signed it into law i believe doma is incompable with our constitution. that's what the court will be taking up today. they will begin the proceedings , it's one hour and 55 minutes and then we'll open up phones and take your calls about the issue of gay marriage before the supreme court.

>> case 12307 united states versus windsor and weem begin with the jurisdiction al. mrs. jackson. >> mr. chief justice and may it please the court, there is no case before this court. petitioner the united states does not ask this court to readdress the injuries ate serts. the house of representativeses bipartisan legal advisory group, the blak which does aspert injury. while it is natural to want to reach the merits of such significant issue, this natural

urge must be put aside because however important the constitution al question article iii prevents its decision here and has this court another day decide the question. ms. windsor alleged injury for article iii. other persons injured could like wise too in a first instance court and obtain relief. but to exercise jurisdiction on this apeal when the united states asked for the judgment below fully agrees with it -- who else is going to if she's not meaning another person's whods benefits with held will be in an identical situation with her. who else could come in?

>> it is possible in district courts where other taxpayers sue for similar relief the district courts will rule differently. n one case of lee wee v. holder upheld it's decision. in addition -- >> if there is no jurisdiction here, why was there jurisdiction at the trial level? the government comes in and says i agree. or if there was jurisdiction why did the court have to get to the merits. if you have a lawsuit on an indebtness and the alleged debter comes in and says i owe the money but i'm not going to pay it. . which is the equivalent of the government saying it's unconstitutional but i'm going to enforce it anyway. what would happen is the court would enter judgment and say if

you agree you owe it, by god, you're going to pay it. >> why didn't that happen here? >> your honor, the two questions that you asked me, why the district court has jurisdiction? the first answer is the party invoking the jurisdiction did have an injury. as to why the district court dn't enter judgment when the united states switched its position, i imagine that the court would have wanted to have development of that issue which was achieved through the intervention of the blag in the trial court so that the judgment of unconstitutionality and a refund would have had a robust -- >> that's peculiar when both parties to the case agree on what the law is. 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. >> i'm not talking about jurisdiction. i'm talking about the district court without the merits should not have entered judgment. >> i'm not sure i have an answer to that. but i believed the similarities to kentucky versus indiana where kentucky sued indiana in this jurisdiction. they had a contract. indiana agreed it was obligated to perform but it wasn't performing. it was worried about a lawsuit. this court exercised original jurisdiction to give kentucky relief. i think that's analogous to what the district court did there. the issue before us today is an issue of upheld jurisdiction.

and the u.s. is seeking to invoke the appellate jurisdiction notwithstanding that it doesn't seek relief, it seeks affirm answer. >> the aurms is very abstract but here is one possible way of understanding it, it would go like this. the president's position in this case is that he is going to continue to enforce doma engaging conduct he believes is unconstitutional until this court tells him to stop. the judgment of the second circuit told the executive brangs to comply with the equal protection clause immediately. president disagrees with the temporal aspect of that. so the executive is agreaved in the sense that the expect stive ordered to do something prior to the point when the executive

believes it should do that thing. wouldn't that be sufficient to create injury in the executive and render the executive an agrieved party? >> i think not your honor. i think not because i don't see how that would be different than any party saying we don't want to pay this judgment until we are sure all of the courts agree. i think this court doesn't have a lot of case party seeks review to get affirm mans but in the princeton university versus schmidt case there was a high state court case. princeton seeks review because its regulations were at issue. new jersey joins in seeking review but does not ask for relief, does not take position on what relief would be -- imagine 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 others think this law is unconstitutional 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 wit. and i execute it until i have an authoritative determination not to. how is that different from a trustee who believes he has an obligation to a trust to do something under a certain provision that he thinks doesn't require that but there is 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 to continue. we'd understand that and say there was standing. why don't we here?

>> well the trustee would be able to go to a court of first instance to get an ajudd indication of the claim. what i'm submitting he cannot do after getting the judgment in the court of first instance stating what the liability is, then seek review of that judgment but ask only for it to be -- >> that's the part i don't understand. if in fact, awse agree, the trustee or other fy dureyare in my example would have to act according to the law even though he thinks that law is unconstitutional. there is standing when he goes into court in the first place you agree. which certainly he could sbrerpt article two you follow through as long as you can do it which includes appeals until

the matter is defined finally and authoritatively by a court. if you could do the first, what suddenly stops you from doing the second? >> the obligations are uncertain the trustee is subject to potentially adverse competing claims on his or her action. >> i would have thought your answer would be the executive's only fwation to execute the law includes the obligation to execute the law consistent with the constitution. d by executed the law by enforcing the 2er78s is unconstitutional. i don't see why he doesn't have the courage of his convictions but do it with his view of the constitution rather than waiting until the supreme court tells us we have no choice. >> i think that's a hard question under article two. but i think the article iii

questions that this court is facing turn on what the parties in the case have alleged, what relief they are seeking and what the posture is. >> are you saying there is a lack of adversity here? >> i am saying primarily -- >> can you give us a general? >> it's a little difficult because the circumstance is unusual, justice kennedy, but i think the most appoint of the doctrines although they overlap, the most appoint is understanding. this court made clear that a party on appeal has to meet the same article iii standing requirements of injury caused by the action complained of and redressable by the relief requested by the -- >> it seems there is injury here. >> i do not agree that the injuries by the united states should be recognizeable because those injuries are exactly what

it asked the courts below to produce. even if we treat the injuries as sufficiently alleged, article iii requires that the party complaining of injury ask the court to remember d.u.i. that injury and that is a -- remedy that injury and that is a very important part under article iii for several reasons. the limitation as i understand it is a broader picture of powers to make sure the courts perform their proper role. the proper role is the redress of injury and it is the need to redress injury in ordinary litigation that just fice judicial review of constitutional issue. >> to go back to justice kennedy's point. we have injury. there is $300,000 that is 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, the government is still paying that $300,000. which in the usual set of circumstances is the classic article iii injury. why isn't it here? >> there is a three prong test. even if you treat that as injury, it does not meet the requirements for standing on ppeal because the government does not ask this court to remedy that injury. the government has not asked this court to overturn the ruling below so it doesn't have to pay the $300,000. it has asked this court to affirm. the requirements we're talking about are nested in an add ver airline is 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 standings by its art lated request for a remedy, what that does is enable the court to nil, to rep shape. and for a doctrine that is supposed to limit constitutionality that is troubling. >> don't we often separate those two things whether there is injury for article iii and redress ability as you sarkse but 24e7b say well sometimes when all of those are met, there is not going to be adequate presentation of the arguments and so we will appoint an am cuss or restructure things. and we do that when the government confesses error. we do that several times a year in this courtroom. >> yes, your honor. ut with this error cases are

different. error cases both parties 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 put it to one side for a moment, the united states and ms. windsor there is no adversity, they are in agreement. and negotiate of them is asking this court to reverse or modify the judgment below. so i believe our cases are quite different from the erspective of article iii. >> in agreement about whether to pay the money. they are in argument about the correct arguments. i can't think of a case other than the sham cases where you can find no obstacle and i can think of one case which you

haven't mention which had seems about identical. >> your honor i don't think it is identical with respect for two main reasons. in chada, the court was quite careful to avoid deciding whether the united states had article iii standing. it intensively analyzed a statute since repealed, 1252 which gave this court mandatory jurisdiction, and it framed its analysis of whether the statute permitted the appeal. may i reserve my time? >> you may finish your sentence. >> thank you. what was going on there it was court said the statute wanted to reach very broadly, props more broadly an article iii. congress said whatever you have

this configuration you go to the supreme court. then the supreme court says in addition to the statute, there must be article iii case or controversy the case of the interveners here. >> that was more than a sentence. >> i'm sorry, your honor. thank you. >> 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 he same reasoned the jurisdiction in chad da. one is whether there is a case or controversy in the sense of

adversity in this court. and the second is whether there is article iii standing. >> on the first one, is there any case where all the parties agreed with the decision below and we upheld appellate jurisdiction? any case? >> all the parties agreed with the decision below, we nonls upheld apell lass jurisdiction. >> it wasn't upheld. >> i don't know that that matters because you have to have article iii prerecommend sits to have a case in this court. the court didn't engage on the case of jurisdiction. >> since none of this was discussed there, any case? >> i don't know of one. you are asking us to do something we have never done before to reach the issue in this case. >> let me say two things if i might, your honor.

first, it's unusual but that's not all surprising. >> it's not unusual, it's totally unprecedented. >> it's totally unprecedented in one respect your honor. let me make a second point. whether it's totally unusual or largely unusual it doesn't happen. the reason it doesn't happen, this set of circumstances doesn't arise very often. it's true when this -- >> it's not very often in the past arisen because in the past when i was at the office of legal council there is an opinion of the office of legal council 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 is unconstitutional i won't defend it. the second wation is where no possible rational argument could be made in defense of it. negotiate 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. >> one recognized situation in which an act of congress won't be defended in court is when the president makes the determination the act is

unconstitutional. that's what happened here. the president made a decision this sact unconstitutional. >> why does he enforce the statute? >> that's an option available to him. in certain circumstances it makes sense not to enforce. ut it's not an all or nothing, that it necessarily follows he wouldn't enforce it. >> suppose the constitutional scholars have grave doubts about the practice of the president signing the bill but saying he thinks it's unconstitutional, signing statements or something like that. it seems to me if we adopt your position that that would ratify and encourage that questionable practice. because if the president thinks the law is unconstitutional he shouldn't sign it. it's very trouble ling.

>> it's in the signing statement one example is turner broadcasting. that was the circumstance in which it was a veto but in the course of the veto the president made a determination that a particular aspect of that statute was unconstitutional. what happened is the department of justice didn't defend that in litigation. my spoint simply 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. >> sometimes you do and sometimes you don't. what is the test for when you think your obligation to take care of the laws be executed means you'll follow you're views about whether it's constitutional or not or won't? you an al te to give go rithm. >> it's only when the president

thinks it's unconstitutional you can decline to defend it. usc-530-b, congress presupposes there are going to be cases where a statute is not defended by the attorney general where it's not constitutional. >> this is a situation in which the president made the determination. and when the president makes that determination, there are a few consideration that is would factor into the mix whether enforcement would follow. one would be the consequences for individuals affected. i would assume criminal statutes we are talking about, criminal enforcement would require criminal enforcement which would require criminal sanctions. >> when it's a statute that cannot be defended, it has no assurance that statute will be defended in court if the so liss ter general in his view

thinks it's unconstitutional, is that right? >> there have been occasions in the past? >> yes or no. > yes, it's true and 26-u.s.-a530-b supposes that. congress knew this would happen. it could happen in the rare instance the president makes that determination. i don't think it has this all or nothing capacity to it. >> it can be that the president decides to enforce it. that was the course of events that south -- >> when a case is adjudicated in the first instance, we're talking about appellate thourt? >> correct. >> the government sometimes loses cases in the first instance and then it doesn't appeal if it agrees with the results that the court reached, it doesn't appeal and 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 so we'll leave it there? and when does it say we agree but we want higher thourt to participate? >> there are a number of situations that can factor in. either of those scenarios is possible. the government made the determination 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 the judicial in saying what the law is. the point in taking an appeal here is the government suffered and injury in the judgment that was issued in the court of appeal. > we didn't permit ms. jackson to address it.

>> i won't your honor, i'll be happy to turn. i want to make a couple of points on our standing to bring the petition before the court. he key principle here is chada. that establishes there is a grievement in this case. >> how are awe grieved? you are d means that deprived of your legal right. 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 you are entitled to under the constitution so how are awe ? ieved -- awe grieved

>> when the united states is a party to a case when held unconstitutional, it is an agreaved party. it is not altered by the fact that the statute in question is unconstitutional. that description is in all fours of the circumstances of this case. >> before you go on, could i clear up something. in your brief you are representing all three branches of the government, is that right? >> correct. >> you represent the judicial as you stand here before today, are you trying to convince the court you trept court? >> in a case like this we are submitted the disspute for resolution. so in that sense i'm not going to tell you i can dictate it comes out in one way or the other. i would like to do that but i can't do that. >> it seems strange n. a criminal case writs the united states versus smith appearing

before an article iii judge, the united states, the prosecutor is representing the court as well? >> i guess guess the executive branch represent it is sovereign interest of the united states before the court. it's not that the executive branch is representing the executive branch alone. they are representing the sovereignness of the united states. that includes the interest of the law, the interest of the president that signed it and the interest of the congress. it is in keeping with all of those considerations. >> it says what you said it said about what it means to be agrieved. it also left open the article iii question. why did chada leave it open if it's the same thing? >> i don't know. i think part of it is the court didn't have a methodology at hat point in time it does now.

yes, hit left the article iii question open but injury follows the agreement and i haven't heard argument to the contrary. if we were agrieved, it follow that is we're injured. we're injured in a couple of case. an act of congress has been decleared unconstitutional which constitutes agreevement and therefore constitutes injury. >> congress would have standing in chad ashes? >> i'm sorry. >> in chada there was an thaurment congress had standing because what was at issue in the case was precisely a prerogative of congress to exercise the one house or two house veet toe. chada. was an issue in >> the court did say in its opinion that congress as a proper party to defend the act and a constitutioner and i

think that's best language. >> so you say we should be concerned about that part of that because the issue wasn't joined there and we should take love vet as a binding issue. >> to be fair, i didn't mean to suggest that love set binding precedence. scenario it's a same as happened here. >> let's go to the blag issue. meant? do you think we >> what is your reading of what can eans that congress intervene in situations in which its interest are injured? >> so there are two aspects hat are relevant on page 93957bd940. on page 940 it deals with

things this court ought to take into account and make sure it has competing arguments before it. an amick ounted for cuss type role. that deals with that aspect. the other aspect is the sentence i eluded to earlier. i'm not going to tell you that sentence doesn't bear on the issue at all. was the point being made that was the house and senate were parties for purposes of the statute and they were parties because they had intervened. >> are you assessing the formulation that somehow the house of representatives has to be of both houses and not just one? >> my point is a little different whether they are a party. i don't read this to address article iii stanged.

on the question of article iii standing, it at most if it says anything with respect to article iii standing, and i don't know it does. in the unique circumstances of that case where you had a veto -- >> you take that decision to congress? >> i don't concede. >> i want to know what you are conceding. >> i'm conceding at most -- >> who would ever have standing on behalf of congress, anyone or is there never standing in >> this case is different because it doesn't involve the prerogative that was involved. it involved legislative veto. here i don't think the interest being asserted is in the same plains that was asserted in rains. >> thank you counsel. >> thank you mr. chief justice,

may it please the court. this court not only addressed the house standing, it upheld the house is the proper party to defend the act of congress when the executive agency charged with enforcement agrees with the plaintiff that it's unconstitutional. >> it was somewhat different because there was a unique house progress nive question. how is this case any different than enforcing the general laws of the united states? there is no unique how power granted by the. it's a law of the united states and the person who defend it is the so list ter general. >> why should the taxpayers have a right to come in and we say they don't. >> because the house is in a very different position in a case like this from the general

taxpayer. in a case like that you're right it was the one house veto that was at issue. but it was be estranged jurs prudence to say the house can demom and defend a one house veet toe and not defend its core article one prerogative which is the statutes and have those -- >> that assumes the premise. the house didn't know it was unconstitutional. >> well with all due respect, justice kennedy -- >> it was at the outset and the house says this is constitutional. >> there is a presumption that it is constitutional because when congress was considering the statute it asked the justice department three times whether doma was constitutional and three times the justice department told them it was in fact constitutional. so i think it's a fair

assumption they have standing to have that determination made by the courts this. court has that he would in the case of state legislatures. >> you don't think there is anything to the argument that in chada the house had its own unique institutional responsibilities and prerogatives at stake, either one has veet toe or the legislative veet toe. would that be really sflant >> i don't think it's irrelevant. i would say two things. i don't think it was the house that exercised the house to exercise the veet toe because the senate participated as well. whalede say is i would continue to resist the premise that the house's prerogatives aren't at stake here. the house's single most important prerogative is to pass legislation and have that legislation fits going to be repealed only be repealed in a

process where the house gets to participate. what if you disagree as the executive defending one of your laws and you don't like their arguments. 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? >> we would not. i would say in that circumstance the house would have a prerogative to file an ameek cuss because it's of sound reason. when the house is discharging its responsibility to defend an act of congress, if congress demoms as a party, it has the possibility of second guessing the way they are defending it. but if the executive is going to vacate the premises or stay the tax statute but have concern. >> how about a couple of cases in the middle 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 if the attorney general decides that the application of a statute might be unconstitutional and decides to interpret it marrowly, could congress then come in? >> in a particular case which is not this case, the executive decides we are not going to defend the statute as applied, i think in that situation the house could come in. as a matter of practice it probable wouldn't. it's not that i can they are anxious to exercise this prerogative. there have only been 12 instances since chada the house has come in and intervened as a party. >> is that in the of appeals or just this court? >> all courts. >> from the point of chada to

doma there were 12 cases where the house intervened as a party. i think in the lower court cases it's important to understand that party status is critical. it doesn't make a different. in the district court that makes all the difference. >> we've always had the distinction between the public action tapped private action. the public action which does not exist under the federal constitution is to vindicate the interest of the law being enforced. when the covenant state or federal in fact has the interest, especially in executing the law, they are given to the president. and they could delegate that interest to congress if they didn't, which they didn't do here. but to say that any legislature has an interest on his own without that delegation to defend a law is to import it in

that context the public action into the federal government. now 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. > i would point to charks hada because it's different. >> of course there is an interest in the legislature in defending a procedure of the legislature. that is not tough. but this is because the only interest i can see here is the nterest in the law being enforced. and i'm afraid of opening that door. >> it's understandable and obviously nobody is suggesting at least in the legislative branch this is the best practices situation. >> think of another instance where that's happeds in all of the 12 cases or whatever that

this court assessed without any special delegation, a legislature has the power which a private citizen wouldn't have to bring a lawsuit as a party or 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 uck point me to which will help? >> i can point you to a couple of cases but not a total solution. homeland against miller. any llman didn't involve legislative thorsization. you can distinguish it i suppose. this court gave those senators not just standing to make roles

about lieutenant governor but make the standing about the separate argument, the only issue that the court reached was the issue about whether prior ratification disabled their subsequent legislation. i think pullman is close. arsaffers against english, there was an authorization. we would say there is enough of the thoffersization. >> can you tell me where the authorization is here? i 2340e there say statute that gave the senate to intervene and there was consideration of extending that right to the house. but it's strange to me it's not in a statute to the house rule. so where -- how does that constitute anything other than a private agreement among some senators, the house leadership and from where do they derive

the right -- statutory right to take on the power of representing the house in items outside of the house? i 2340e they control the procedures -- i know they control the procedures within the house. but this say different then than saying they can decide who or to create standing in some way potential or otherwise, article iii or otherwise. >> i can point you to two place. one are the house rules that are approved by the institution, approved in every congress. >> what other house rule create it is 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. >> this was, i think, sort of unheard of. >> i don't think so.

with that same authority that gave the house essentially a predecessor to it that had the house appear in litigation since chada. we have that in hr-5. >> we decropt a vote here. >> we do. >> the house passed a resolution that passed that authorized that blag continue to represent the interest of the house in this particular litigation. if there was a question before, there shouldn't be now. >> 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 and the senate on the other? >> no they wouldn't have the standing to be on the other side of this case, they would have standing to be on the same side of this case. and that's essentially what happened. >> why not? you are concerned about the argument and the house of representatives standing alone

come in court, why can't the defendant come in and stand on the other side? >> because it wouldn't have the authority to do that. it gives the house to intervene as a party is that the expect tive branch declines to defend the statute. if they want to share argumenttime, they can. but there is no need for them to participate as a party. i would want to emphasize the lower court's participation by the party is critical. it doesn't make sense to see them be in charge of the litigation in the district courts. whether the statute is going to be invalidated will depend on the record in the district court f. they only entered judgment, it would end and the executive would be forced to do their job and defend these stauts and that's not going to happen. >> why is it sufficient to for the house to take position it's

constitutional. it usually requires both houses and the signature of the president. >> each individual house has a constitutional role before a statute is repealed. it takes two of them to make the law but each of their participation is necessary to repeal the law. if an executive wants to go into court and get the repeal of a law, one house vind indicates its role by saying wait a minute, we passed that law, it can't berepealed without our participation. >> the house and each member of that house who was part of the majority has the same interest in defending it's constitutionality. >> i don't think that's right after rains. in rains it distinguished the situation of an individual legislator and the house as a whole. it said this might be a different case if we had that kind of vote. that's what you have here and you had in chada.

the only alternative is to say the executive must enforce those laws and if they don't -- after all, i don't understand why if they made a determination is law is unconstitutional why they should continue to enforce the law and do something the president has determined unconstitutional. that's problematic enough. if they are going to do that and get anything more than a consent judgment then the house has to play its role as a party. the executive gives the game away by conceding our participation is necessary to solve what would otherwise be a graring problem. once you recognize we participate, you recognize there is nothing executive about defending the constitutionality of an act of

congress and nothing legislative about making arguments in defense of a statute. that's necessary to ensure there is an adverse presentation of the issues there is no reason the house should do that with one hand tied behind its back. it should participate as a full party. that's critical in the lower courts so they can take depositions and build a record. the alternative futs executive branch in an impoblee position, conflict of interest. they are making litigation decisions to promote the defense of the statute they want to see invalidated. if you want toe see the problems look at joint apen dicks page 437, a motion to dismiss filed by the united states asking the district court not to dismiss the case. that's what you get under their view of the world. >> that gives you sbeleckchule

whiplash. i'm governor cuomo to have to think about that. >> it does. to -- i'm going to have think about that. >> it does. >> thank you counsel. mrs. jackson, you have four minutes remaining. >> thank you your honor. i have five points which quickly i only answered part of a question you asked me earlier i want to say the u.s. is asking this court to tell it to pay money. it's not asking for relief. you asked me object the issues have come up otherwise. i don't think i had a mention chance to mention there are 287 employers on page 32 at note 54 giving examples of how doma's constitutionality could arise in private litigation. in addition state and local

government employees might have fmla in which the issue could arise. there are a number of ways in which the issue could arise. on 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 wasn't saying something like this, 1252 was congress's wish list. it was like a citizen suit provision to be exercised only to the extheant article iii power was there. that's a way to make sense out what the court is doing in the text and footnotes there. as to the question of blag which has been fully discussed already, i do want to say after the fact authorization seems to be quite trouble ling and inconsistent with this court's has ach where if a party

standing, they need to have it in the first court they are in when it starts or certainly before judgment. and the rule doesn't seem to say anything about authority to lit gapet. i think that -- litigate. i think that the injury being complained of is inconsistent with separation of powers. they make clear once the litigation is enacted, congress's authority to sup vice is isn't there, it goes to the executive branch and whether it does it well or badly in the view of congress, it's in its domain and separation of powers will not be meaningful if it only means congress has to stay out unless they think the president is doing it bad lifment house gives shape to what kinds of

injuries by congress can be cog niesable. cited by three cases my colleague all involve state level government where the is al separation of power not art cue lated in cases were not at ishe unless there are other questions i will is it down. >> on the question of the house resolution, if one of the houses 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 whether that's a correct sbrerpation of the rules of of the interpretation rules of that? >> yes, i do. it is having effect in the rules of articles which this

supreme court in charge of. more over, in the smith case, the court said that when the senate passed an after the fact interpretation of what a prior rule meant, not with decanding the great respect given to the senate's interpretation this court and did reach of interpretation of the senate rules and i would turg court to -- >> what did you think of mr. cle meant's argument this way is in e execution laws article two. but where the president demupt a particular law, under those circumstances a member of the legislature appropriately authorized as the constitutional power -- a power that is different than the average person being interested in seeing that the law is carried out, 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 when the executive declines to do , so it is exercising its take care clause authority. they should take care the laws be executed. the laws include the constitution so i don't think the distinction offered by my colleague is appropriate. it would result in separation of powers on the lethure and executive branch and would bring the federal courts into more continue verse sis that have confrontation in which this court has traditionally been very caution. >> i would like to note you argued this case as amick cuss at the invitation of the court and have you discharged your

responsibility which you have the gratitude of the court. >> thank you. >> we will now turn to the erits. >> wir about half way through the oral argument on the defense of marriage act. the court deliberated an hour and 55 minutes. paul arguing for the defense, the plaintiff defended by the supreme court attorney. the case focusing on plaintiff 83-year-old edie windsor who was handed an estate tax bill after the death of her partner. she would not have faced that same tax bill if her husband

was a man. you heard chief justice roberts announce a two minute break before the argument on the merits of the case. so far the nine justices have been hooking at two questions, whether the supreme court had jurisdiction to hear the case. >> mr. chief justice and may it please the court, the issue of same sex marriage certainly imp indicates profound and deeply held views on both sides of the issue. but the question on the merits before this court is quite narrow. on the assumption that states are the constitutional option to define marriage in traditional terms or recognize same sex marriages or adopt several unions, does the federal government have the same flex ability or must the federal government borrow the terms in state law? i would submit the basic principles of fed ra i678 suggest 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 the traditional definition or bow row the terms of the statute. >> the problem is it would totally thwart the decision if there say marriage between two people for the federal government then to come in and no marital return, deduction, no social security benefits, your spouse the very sick, but you can't get leave. it's that set of attributes, one might ask what kind of marriage is this >> and i think that is a marriage under state law and this court's cases when it talks about the fundamental rights of marriage, i taket to be talking about the state law status of marriage and what is

that for the purposes of law. that's been true certainly in a number of situations under a number of stauts so it's simply not the case as long as you are married under state law you are absolutely going >> how about divorce? same thing? >> we have never had that, your honor. i think there is a difference when it comes to divorce because with divorce, uniquely, you can have the possibility that somebody is married d.o.t. to go different people. with the basic question of whether to recognize, is whether the federal law treats you as married for a particular purpose or not, there have always been differences. they recognize common-law marriages in all states were a lot of states do not recognize common-law marriages. the federal law recognizes that

-- of the social security act, page four of our grief. >> only if the state recognizes the. >> i do not think that is true. >> there is a federal common law definition. my understanding is that the federal law recognizes it in the context, even if it doesn't. taxe are situations, consequences, if you get a divorce every december, the state may well recognize that. they will not allow you to get a divorce if you have a filing status that works for you and is more favorable for you. efforts.s own i do think the purposes of federalism issue, it really matters. all it does is take this term where it appears in federal law

and define it for purposes of federal law, which obviously would be a radically different case if congress had in 1996 decided to stop states from defining marriage in a particular way or dictate how they would decide it. >> that applies to, what? 1100 federal laws? tohink there is quite a bit the argument that the tax deduction case, which is specific about whether or not congress has the power, it can exercise it for the reason that it wants. i suppose it can do that. but when it has 1100 laws, which, in our society, means the federal government is intertwined with the citizens day to daylight, -- day to day to day life,

to regulate divorce. >> the very fact that there are a 1100 provisions that define the term marriage and spouse, goes a long way of showing that federal law has not just stayed completely out of these issues. it has gotten involved in them in a variety of contexts where there is an independent federal power that supported that. the second thing is the fact affects all- doma statutes that once is not a sign of its irrationality, it is a sign that what it is is a definitional provision. like every other provision in the dictionary, it defines the term forever it appears in federal law in a consistent way. that is partly what congress was trying to accomplish with doma. >> it is not uniformity. it does not regulate all. >> that is true, but i don't think that is a mark against it

for federalism purchase -- federalism purposes. remember, in 1996, congress is addressing this issue because they are thinking that through its judicial action it is about to change the definition of marriage in a way that it has been defined in every jurisdiction in the united sthat at.ant is that when congress passed every one of the statutes by doma's definition, they had a definition. congress at that point said, the states are about to experiment in changing this, that the one thing we know is all these federal statutes were passed with the traditional definition in mind. in the rational basis defense, it has to be rational. they said, well, we are going to reaffirm with how this is meant for the purposes of federal law. >> suppose we look just at the state tax provision which is an issue in this case which provides especially favorable treatment to a married couple as

individualany other or economic unit. what was the purpose of that? was the purpose really to foster traditional marriage? or was congress just looking for a convenient category to capture households that function as a unified economic unit? ,> i think for these purposes when you go back to the beginning of estate taxes, what congress was trying to do is provide uniform treatment of taxpayers. if you look at the senators, they discuss this history. what happened when this provision was initially put into the federal law, you had community property states and common-law. actually, there was much more favorable taxes if you in a community law state in a common- law state. robbers did not want to have an artificial incentive for states to move from common-law to community property and wanted to

treat citizens the state -- the same way no matter what state they were in. is thatwhat that shows when the federal government gets involved in the issue of marriage, it has a particularly acute interest in uniform treatment of people across state lines. ms. a windsor wants to point to of treating to new york couples differently. that is exactly right. purposes of federal law, it is much more rational to say, we want to treat the same-sex couple in new york the same way as the same-sex couple in oklahoma and treat them the same. >> that is taking the question, because you are treating the married couples differently. you are saying that new york's married couples are different than nebraska's. you are taking that out of a hat. the point is, there is a

difference. >> the only way they are different is because of the way the state law treats them. just to be clear, because of what the state -- what this case a caset, is this is not based on a marriage license issue by the state of new york after 2011 when new york recognize same-sex marriage. this is the status of ms. windsor as a married depends on the certificate issued in 2007. >> that would be the same thing at the state passed the law, if congress passes the law, some states see it as the age of consent. if you are 17 when you get marriedth no tax deduction, no medical, nothing. or, some states have a residence requirement of a year. horace passes a law that says, well, unless you are there for a nor, no medical deduction,

tax thing, no benefits of any kind. that would be perfectly constitutional. it would not be arbitrary. it would not be random. two guess i would say things. the first question would be what is the relevant level of scrutiny? >> your bottom line. the bottom line here, as you can imagine, i can make them up all day. differences between states have nothing to do with anything. residence requirements, a .edical exam, how old you are congress just passes a law which takes about 30% of the people who are married in the united states and says, no tax deductions, know this, no .edical benefits, for about 20% can they do that? >> again, i think the right way to analyze it would be, is there any distinction or indicates what level of scrutiny is indicated?

be, yes. would they could do that. >> i am trying to think of examples. i just cannot imagine what it is. >> i think the uniform treatment of individuals. >> use a uniform is good enough no matter how obvious, no matter how irrational, there is nothing but uniformity. you see where i'm going? >> i see exactly where you are going. and honestly, every one of those cases would have to be decided on its own. i do think there is a powerful interest. >> the first part. every one of those cases has to be decided on its own. ok? what is special or on its own that distinguishes and thus makes rational or whatever basis you are going to have here, treating the gay marriage to friendly? treating the gay marriage

differently? >> we come at it that they have the option to choose, and what they are confronting in 1996 is the prospect that one state through its judiciary will adopt same-sex marriage and then by operation of the law, that will apply to any couple that wants to go there. it is a very nice place to go and get married. congress is worried that people will go there, go back to their home jurisdictions, insist on the recognitions of their same- sex marriage in hawaii and then the federal government will borrow that definition and therefore by the operation of one state judiciary, same-sex marriage is basically going to be recognized throughout the country. what congress says is, wait a minute. let's take a time out here. let's take a more cautious approach where everyone gets do this for themselves. section two of doma says that we will --

>> what is the federal government -- what gives the federal government the right to be concerned at all about what the definition of marriage is? we can create, this special category, men and women, because the states have an interest in traditional marriage that they are 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 is not there or that he longs the states? >> two responses to that, justice sotomayor. supports thethat federal government's definition is whatever federal interest justifies the underlying statute in which it hears. in every one of these statutes that affected, but assumption, there is some article 1 -- >> they can create a class they , homosexuals.ere

or a class that they consider is suspect in the marriage category, and they can create that class and the side benefits on that basis when they themselves have no interest in the actual institution of marriage as marriage. the states control that. >> just to clarify. i am not suggesting that the federal government has any special authority to recognize traditional marriage. if the assumption is that nobody can do it, if the states cannot do it either, than the federal government cannot do it. >> i am assuming -- i assume the states can. >> the federal government has two sets of authority that is a legitimate interest in this debate. one is whatever authority is in the underlying statute. the second is a complementary of authority. the federal government recognizes that it is a big

player in the world. gives programs that might states incentives to change the rules one way or the other. one way is to let the democratic process and deal with this and just say, look. we will stick with what we have always had, which is traditional definition. we are not going to create a regime that gives people an incentive. then you will get estate tax. >> ice and the logic in your argument. -- anee an analogic illogic in your argument. congress wanted to help the states. they come toree, the conclusion that gay marriage is awful. that is inconsistent. >> they are preserving and helping the states and a sense of having them -- >> we are having them do what we

want them to, which is not consistent with the historic anditment of marriage questions of the rights of children to the state. lex with respect, that is not right. no state loses any benefit by recognizing same-sex marriage. things stay the same. what they do not do is open up an additional class of bennett sheri's under their state law -- an additional class of beneficiaries under their state law. >> every aspect of life, where your partner is sick, social security, it is basic. it is not this federal sphere. it is not only a tax question. as justice kennedy said, 1100 statutes. . that affects every area of life.

what really diminishing the state has said is marriage. the states have two kinds of marriage. -- >> that is not what the federal government is saying. it is saying within its own realm and federal policies where we assume the federal government has the authority to define the terms that appear in their own statutes, that in those areas they will have their own definitions. >> for the most part and historically, the only uniformity that the federal government has pursued is to uniformly recognized marriage recognized by the state. this was a real difference in the uniformity that the federal government was pursuing. it suggests that maybe something -- maybe congress had something different in mind then uniformity.

we have a full series of cases which suggests the problem, which suggests that when congress targets the group that is not everybody's favorite group in the world, that we will look at to those cases with some, even if they are not suspect, with some rigor to say, do we really think that congress is doing this for uniformity reasons? or do we think that congress's ,udgment was infected by fear by animus, and so forth? the question that the statute raises that does something that has never been done before, is whether that sends up a pretty good read a flag that that is what was going on. >> a couple of responses, justice kagan. first of all, i think i would take issue with the premise 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 in the context of particular programs, it has also intervened in other areas, concluding -- including state prerogatives. on federal congress insisted them. there is a reason why in the wake of the civil war congress specifically wanted to provide benefits for spouses of freed slaves. in order to do it, it had to create a state law marriages. in the confederacy, this -- the slaves could not get married. they had to define who was married and who was not. whether there was a need in the past to get involved, the federal government got involved. another point i would like to make, when you look at congress doing something that is unusual , a way they have not proceeded in the past, you have to ask, was there a good reason?

you have to understand that in 1996, something happened that is, in a sense, forcing congress to choose between this historic practice of the states and its historic practice of uniformity. up until 1996, it was both ways. every state has the traditional definition. coversis the definition in every federal law. in 1996,t happened and i will quote the report here, that congress decided to reflect and honor of moral judgment and express moral disapproval of homosexuality. is that what happened in 1996? >> does the house report say that? of course it is says that. if that is enough to invalidate the statute, then you should invalidate it. that has never been your approach, especially under rational basis. [indiscernible] we are not going to strike down

a statute just because a couple of legislatures may have had an improper motive. we are going to look at it on a rational asus. is there any rational basis for the statute. sure, the house report says some things. but the house report says other things like congress was trying to promote democratic self- government. in a situation where an unelected state judiciary is on the verge of deciding this highly contentious issue, for the states and for the federal government, by borrowing, it makes sense. >> your statute applies where the bonuses are decided. >> that is true, but i do not think that fact alone makes it a rational. , i thinko be clear your answer is fair and right. we have switched now from federal power to rationality. there is a difference. i think we are assuming now that there is federal power in

asking about the degree of scrutiny that applies. we going back to where there is a federal power? >> i think there is where it applies anywhere other than in a federal statute. if there is not federal power for which these terms are, that is a problem independent of doma. i assume we have federal power. >> i think the question is whether or not the federal government, under our federalism scheme has the authority to regulate marriage. thet does not have authority to regulate marriage as such, but that is not what doma does. it defines the term as it appears in a federal statute. many of those statutes did -- provide benefits. it appears in lots of places. >> commerce could have achieved exactly what it achieved under the term by excising

married from the united states code. and replacing it with something more neutral and then defined this in exactly the way that section three, exactly the way that doma defines marriage. would that make a difference? they would not be purporting to say who is married and two is not. it would be saying who is to various federal benefits and burdens based on a federal definition. >> that would make no difference, justice alito. has the federal government been hiding this term as it appears in the federal code, it is not regulating marriage as such and it is important to recognize that people who are married in their state based on the legislative acts or by recognition remain per -- remain very for purposes of state law. >> you started, i think by

agreeing, maybe not, then uniformity in and of itself is not likely to prove sufficient at least on a rational basis. and why? because we can think of categories that are uniform. so far, what i have heard, is looking at it on the merits, there is certainly a lot of harm. on the plus side, we do not want courts deciding this. of course, as was just pointed out, in some states it is not courts. it is the voters. and then you say, but we want many courts deciding it. many courts might decide it. want to be able to have a list of really specific things that you are saying that justify this particular effort to achieve uniformity. i have those two i

mentioned. what else? >> i did not understand what is so central to your position. i think he did not want the voters in one state to dictate any more than you would want the courts to dictate. ,> i think that, justice scalia i think the point about the courts is that it is particularly relevant here. >> they do dictate in respect of time, respective age, but what i am looking for is what in your opinion is special about this homosexual marriage that would justify this other than this kind of pure uniformity. if there is such a thing. >> let me just get on record and take issue with one of the premises. i would suggest that three

levels of scrutiny are a enough. if you are looking at what defends the statute, they're obviously in the brief. it is not just uniformity. it is not just we need a uniform term and let's pick it out of the air. they knew that every federal statute on the books at the point. they knew it had been tried in every jurisdiction in the united states. of course, it was correctly predicted. in this context, they are thinking about an individual. this couple goes to ontario and gets a marriage certificate. a couple from oklahoma would have gone to ontario and got a marriage certificate and come back to oklahoma. from the federal law perspective, there is a rational basis in treating those two couples the same way. i reserve my time. >> thank you, mr. clement. theay it please the court,

equal protection analysis should focus on two fundamental points. section 3 does is exclude from an array of 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. >> you agree that congress could go the other way, right? they could pass a new law to date that says we will give federal benefits -- when we say marriage in federal law, we mean same-sex couples as well. that could apply across the board, or do you think they could not do that? >> we do not think that would raise an equal protection like the statute does. >> no. my point is, you do not think it would raise a federalism problem, do you? >> i do not, but the key or our purposes is, in addition to

denying these fundamentally important benefits, is who they are being denied to. >> just to be clear, you do not think there is a outer alyssum problem with what congress has done in doma. >> no, we do not. the question is whether the constitutionality for equal protection purchase -- purposes, and because it can get into numerous statues, those statutes effect.e an >> you think congress can use its powers to supersede the traditional authority and prerogative of states to regulate marriage? to have a uniform definition of marriage that includes age, etc., etc.? >> i am not saying that. congress passes this is a statute we have to consider how to defend it. >> there is a enteral is an interest in stake -- at stake here.

>> with respect to section 3 of dilma, from the point of view of doma,ted states -- of from the point of view of the united states. >> whether those should take account is relevant to the equal protection. >> it is central for the inquiry. justice kagan, i completely agree with that point. >> it would be central for the inquiry of congress want the other way, too. >> what section three does is impose this exclusion from federal benefits of a class that has been history to terrible discrimination. >> i understand that. that is your equal protection argument, but is not responsive to my concern. you do not think better lives and concerns play in this? >> i want to clarify that the equal protection is different. >> i know the argument is --

they come into play in the following way. >> mr. clement has made the argument that whatever states can do in terms of recognizing marriage or not recognizing marriage, the federal government has authority to do or not to do. we do not think that is right as a matter of our equal protection analysis because we do not think the federal government should be thought of as the 51st state. we told the court yesterday that we believe high scrutiny for state decisions -- >> you are insisting we get to equal protection, but we do not do that unless we assume that the law is a valid otherwise to begin with. we are asking, is it valid otherwise? what is the federal government in an acting the statute and is it a valid federal interest, assuming before we get to the equal protection part? think, whatever the outer

bounds of the federal authority would be, arch from equal protection violation, we do not think that section 3 raises a federalism problem. but, we do think the federalism analysis does play into the thel protection because federal government is not to the 51st state for purposes of the interest that mr. clement has identified. >> can you go back to the example you began with? where a member of the military is injured? let's say three soldiers are injured and they are all in same-sex relationships and and in each instance the other partner in this relationship wants to visit the soldier in a hospital. his spouse in a state that allows same-sex marriage. the other is 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 does not involve either. your argument is that, under federal law, the first would be admitted. should be admitted, but the other two would be kept out? case,the question in the justice alito, is whether congress has sufficiently persuaded the exclusion that it has imposed. it is not -- the only way in which the arguments of this statute have any prospect of eing upheld -- >> your position seems to be that one gets in, to stay out. even though your legal arguments would lead to the conclusion that they should all be the same. >> the question before the court is whether the exclusion that doma imposes violates the protection, and it does because you cannot treat this as though it were just a distinction to join an optometrist and ophthalmologist.

this is a different kind of a situation because discrimination here is being visited on a group that has historically been subject to terrible discrimination. >> that is the same example he just gave you. that discrimination would have been visited on the same group. and you say, there, it is ok. >> i did not say that. it is subject to analysis, certainly. >> you think that is bad? or all three should be treated the same? >> they have to be analyzed under equal protection. whatever is true about the situation, whatever is true but the couple who was lawfully married for purposes of state law, and the exclusion as a itself, thema exclusion has to be justified under the equal protections analysis. >> general, i have a question. i think from your brief yesterday and today, on some level, sexual orientation should be looked at as a matter of

scrutiny. >> yes, your honor honor. >> are heightened in some way. owing back to the chiefs question -- going back to your chief question about heterosexual and homosexual marriage, i think under your theory that might be suspect because that law might be suspect under equal protection it does once we say that sexual orientation is suspect,, it would be suspect whether it is homosexual or heterosexual. it would be suspect because it is based on sexual orientation. >> you would have to impose the heightened scrutiny. >> exactly. -- when weided it decided race was a suspect class, people who were not black have received scrutiny on whether the use of race as a class, whether they are white or .lack, is justified

>> that is certainly true, your honor. what thed turn to statute identifies as a supporting the statute, i think you can see what the problem is. the statute is not called federal uniform marriage benefits act. it is called the defense of marriage act. the reason for that is because the statute is not directed at uniformity in the administration of federal benefits. there are two equally uniform systems. the system of respecting the states and the system that the flag is indicating here. what it has to do is justify the choice between one and the other. the difference between the two is the section three choice is a choice -- it is a choice that discriminates. not simply a matter of

sufficiency and uniformity. section three discriminates. as soon as one states adopted marriage, there is no doubt that up until that point every time congress said marriage, they understood they were acting under the traditional definition of marriage. >> i cannot no mr. chief justice why you would not assume what congress was doing when it enacted a statute that had the word marriage in it was assuming that the normal role that applies to the vast majority of circumstances and the state definitions of marriage would be the operative principle. >> you do not think that when congress said marriage that they had in mind same-sex marriage. they had in mind, referring to the normal state's definition whatever it is. after they were making a specific choice. whatever the case, when congress enacted goma, it is that choice

of exclusion. doma -- enacted that choice of exclusion. the administration does not get you there. administration concerns ought not be a concern for this kind of diminished -- of this kind of discrimination under the equal protection clause. even if you look at them, there are no genuine administrative benefits. it makes it more difficult to now the federal government has to look behind state marriage licenses. it is an additional administrative burden. there is no administrative advantage to be gained here. the fundamental reality of it housed i think the

report makes this glaringly clear, is that doma was not enacted for any purpose of uniformity, administration, caution, any of that. it's was enacted to exclude same-sex married, lawfully married couples from federal and if it regimes based upon the that was driven by moral disapproval. it was quite clear, in black- and-white. 84that was the view of the senators that voted in favor and that presidents that signed it? they were voted -- motivated by animus? >> i think there is a lots of wisdom there, it may not have been animus or hostility. it may have been what was described as the simple want of

careful reflection or a distinctive response to a class of people, a group of people who we perceive as alien or other, but whatever the explanation, whether it is animus, whether it is that, more subtle, unthinking, reflective, discrimination, section 3 is discrimination. i think it is 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, 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 would not justify the law. wax general, your bottom line is -- >> general, your bottom protectionequal violation. >> yes. >> is there anything you can make to limit this case, vis-à- vis, the federal government? >> as we said yesterday, we think it is an open question with respect to state recognition of marriage. they may well be able to advance interests. i should not say may well, because i do think it would be difficult. they may be able to advance interests that would satisfy heightened scrutiny. , the federal government is not in the same position. the federal government, as the most, can act in the margins.

in the second circuit and on the first circuit, they both believe that there is no connection at all. that is because section 3 does not make it any more likely that unmarried men and women in unmarried men and women who have an unplanned privity and get married, deal limitation of section 3 would not make it any less ugly, it does not have any -- any less likely, it does not have any affect at all. >> i am back where we were yesterday. it seems like your argument is the violation of equal protection of everyone. if it is, all states have to have something like that. if they have to have something like that, they have to allow marriage. then they all have to allow marriage. and you say, no. my point here, justice

,reyer, whatever the issue is what ever the outcome is with respect to states and marriage, that's the federal government's interest in advancing those justifications is so in tenuate, that two federal courts of appeal are seen as nonexistent and they cannot justify section 3. >> thank you, general. >> mr. chief justice, may it please the court. i would like to focus on why goma fails. because of goma, many thousands of people who are legally married under the laws of nine sovereign states in the district of columbia are being treated as unmarried by the federal government solely because they are gay. these couples are being treated as unmarried with respect to to by justicered

ginsburg. they are being treated as unmarried. was married. when her spouse passed away, she has to take three hundred 63,000 dollars from estate taxes on the property they had accumulated during their years together. >> and i asked you the same question i asked the solicitor general? do you think there would be a problem if congress went the other way? obviously cannot think there is an equal protection problem, but if congress said, we are going to recognize same-sex couples, committed same-sex couples, even if the state doesn't for purposes of federal law. >> obviously, with respect to marriage, the federal government has always used the state definition. i think what you are proposing is to extend additional benefits to gay couples in

states that do not allow marriage -- gay marriage. >> i am asking if you think congress has the power to not adopt a state that the nation. do they have that authority? >> the question under the equal protection clause is what the distinction is. >> i know that. you are following the lead of the solicitor general and returning to the equal protection clause. problem under federalism principles? >> with the federal government -- >> and that congress pass a law that says they can adopt a different law of marriage than those states that do not recognize same-sex marriage? if we said, we do not care but they will be recognized. >> it has certainly been argued in this case by others whether or not that should be a power of the federal government. we think the federalism principle is a novelty question.

i think whether or not the federal government could have its own definition of marriage for all purposes would be a closely argued? . >> i just understand your answer. is it yes or no. problem a federalism or not? >> i think the federal government could extend benefits to gay couples. whether they should have their own definition of marriage, i think would be closely argued. >> for all of these statues, use the term marriage. the federal government says, in all of the statutes, it includes same-sex couples. whether the state acknowledges them to be married or not. >> i do not know if that would work. >> never mind whether it would work i cannot care if it would work. [laughter] does it create a federalism problem? >> the power to marry people lies with the states. >> it is not doing that. it says here for purposes of

all these federal statutes, when we say marriage, we mean, instead of saying we mean heterosexual marriage, we mean heterosexuals and homosexuals. if that is what it says. can we do that? >> as long as the board validly married under state law -- >> no. the federalsure government can create a new federal marriage that will be some kind of marriage the states to recognize. word just gets rid of the marriage. it takes it out of the code completely. substantive of something else. to include same-sex couples. surely we can do that. >> yes. >> so just as the word marriage? -- so is it just the word

marriage? >> that is what the federal government has chosen to do. the federal government can decide to change that if it wanted. but for certain programs, requirements other than marriage, that would be constitutional, unconstitutional, depending on the issue. >> state law, would not that creates an equal protection problem similar to the one that exists here? suppose there were a dispute about the state of residence of and her partner or spouse. was it new york home a was it some other state, where same-sex marriage would not have been recognized. it was a state where it was not recognized. would you not have essentially the same equal protection argument there that you have now? >> let me answer that question clearly. our position is only with

respect to the nine states. i think there are two others that recognize these marriages. if my client is a new york couple today and marries, and moves to north carolina which has a constitutional amendment and one of the spouses dies, the state determines where the person dies, they would not be entitled to that deduction. that is not our claim. moreover, justice alito, there has been litigation for hundreds of years with respect to the residency of where people lived or don't live or whether they are divorced or not divorced throughout the federal system. the federal government has always handled that and never before, and we believe this is why it is unconstitutional, separated out a class of married couples. >> let me follow-up with 11 question. what is the hypothetical -- with one question. what is the hypothetical with

the surviving spouse, saying it is unconstitutional to treat any afferently because of being resident of north carolina or a resident of new york? would that be a basis on the level of sexual orientation? >> if you look at the case you heard yesterday, that in the case you had today, we certainly believe that the sexual orientation should get heightened scrutiny. if it doesn't, then the rational basis would be that the state interests were in not allowing couples, for example, north carolina, to allow them to get married. no one has identified in this case, and they do nothing we have heard in the argument from my friends, any legitimate difference between married gay couples on the one hand and straight married couples on the other that can possibly explain the sweeping, undifferentiated discrimination of doma -- a

section 3 of doma. no one has identified federal interest that is being served by congress for the first time in our nations history to undermine undermine the determinations of the sovereign states to respect to eligibility for for marriage. i respectfully contend that this is because there is none. as the title of the statute wass clear, the --doma enacted to defend marriage. it was rooted in a moral disapproval. >> the argument i heard from the other side -- at least as i understand it, is look, the federal government needs a uniform rule. uniform one-this man-one-woman rule for several years. there is a revolution going on in the states. we either adopt the resolution or push it along and stay out of it. i think mr. clement was saying, we have decided to stay out of

it. the way to stay out of it is to go with the traditional thing. that is an argument. your answer is what? i understand. [laughter] >> congress should not stay out of it. section 3 of doma is not staying out of it. it is stopping the recognition of the federal government of couples that are already married asa solely on their sexual orientation. it is undermining, as you can the it is undermining policy decisions made by those states that have permitted gay couples to marry. states that have already resolved the cultural, political, moral, what ever other consequences, they have resolved in the states. couples who are already married and treating them as unmarried for purposes of federal law, you are not taking it one step at a time. andre putting a stop on it having discrimination for the

first time in our countries history against a class of married couples. -- on discriminations on a class of marriage. >> is is a class of married couples, gay. >> i pose the same question to you. do you think there is a difference between that discrimination and the discrimination of states who say homosexuals cannot get married? >> i think it is a different case. when you have couples who are gay and already married, you have to distinguish between those classes. again, the federal government does not give license to what the states can do. the federal government has. there is little doubt that the answer to the question of why

congress singled out gay people with respect to doma. the answer cannot be uniformity as we discussed. you still have to explain why the cost savings are at the expense of married couples who are gay. it cannot be any of the -- that were discussed. parenting and marriage is done by the states, not 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 congress but was permissible in 1996 because it relied on the decision which has been said was wrong not only at the time, but it was wrong when it was decided. >> the same question before. 84 senators based their vote on moral disapproval of gay people? >> no. i think what is true is that times can blind.

back in 1996, people did not have the understanding that they have today. there was no distinction. no constitutionally permissible distinction. >> does that mean they did not base their votes on moral disapproval? >> some certainly did. i think it was based on an understanding -- an incorrect understanding that gay couples were fundamentally different than straight couples. an understanding that i do not think exists today. that is why i am saying that times can blind. we all can understand that people have moved on this and that there is no such the sanction. i am not saying it was enemas or bigotry, i think it was based on a misunderstanding. >> -- i am not saying it was , and it was atry misunderstanding. >> how many states permit gay couples to marry? 9. >> there's been this sea change in sense now and 19 96. >> i think with respect to the

understanding of gay and their relationships. >> how many states have unions now? >> i believe it is eight or nine. >> how many had it in 1996? >> it was much fewer at the time. i do not have that number, just as james byrd. i apologize. >> i suppose it has a lot to do with the -- i do not have that number, justice ginsburg. i disagree with that. i think there is an understanding that there is no fundamental difference to justify this kind of category of discrimination to gay couples. >> each not doubt that lobbies supporting the enactment of same-sex marriage is politically powerful, do you? termth respect to that for purposes of high scrutiny,

i would, your honor. >> really? >> yes. >> as far as i can tell, political figures are falling over themselves to support your side. >> the fact of the matter is there is no other group in recent history that has been subjected to popular referendum to take away rights that have already been given or exclude those rights the way gay people have. only two of those referendums have ever lost. one was in minnesota. one was in arizona. 1990,ot think, and until gay people were not allowed to enter this country. so, i do not think that the political powers today could possibly be seen within that framework. certainly, it is an alchemist -- analogous with the way women were. quick you just referred to a sea whene from 1996 to win -- doma was enacted.

>> flip of the language. i think -- flip the language. i think it comes from a moral understanding that gay people are no different and they are not significantly different than straight, married couples. >> i understand that, i'm just trying to understand where that moral understanding came from if not the political effectiveness. >> i think it is similar to what cameaw in -- i think it from a societal understanding. i do not think it came strictly from political power. i do not think that gay people today have elliptical power in connection with the heightened scrutiny -- have political power in connection with the heightened scrutiny. >> thank you. >> enqueue. -- thank you. first of all, i was not surprised to hear the solicitor because inceed -

massachusetts, the 10th amendment. on that issue, the united states continues to defend doma because there is no unique federalism problem with it at the chief justice question suggests. 10 years from now, there are only nine states (congress wants to adopt a uniform federal law. it is fully entitled to do that. it has the power to do that. there is a rational basis. it is not so unique. in the problem in your ,riefing, you seem to say anything goes. in the very first gender discrimination, the court did

something it had never done in the history of the country. there is no intermediate. >> it is a fine rational basis to doma. we heard today that there is a problem. when somebody moves from new york, they can lose their benefits. the federal government, uniquely, can say, that does not make any sense. we will have the same role. which not want somebody yet they'll be transferred in the military from russ point two oklahoma to resist the transfer is they will lose some benefits. it makes sense to have a uniform federal role for the federal government. it is not synonymous with the way marriage is defined in the code.

these terms, do appear in multiple enteral statutes. -- in federal statutes. think about the fact that congress asked the justice department three times about the constitutionally. that is not what you do. the first two times the cost back that it was constitutional. the third time they asked and got the same answer, it is constitutional. where do we get careful reflection? it comes from the democratic process. ,t declares people to persuade there has been a sea change. political power, to find by getting the intention. it is also persuasion. that is what it requires. to persuade somebody, you are right. you do not label them a ticket.

you persuade them you are right. that is going on across the country. colorado just recognized civil unions. in maine, evidence of persistent discrimination as they voted down a state-wide referendum. in the next election cycle, it came down the other way. they repeal don't ask don't tell. thank you thank you. >> thank you, counsel. the case is submitted. for your argument this morning, the united states versus -- >> by the u.s. supreme court, one hour and 55 minutes of oral arguments. our cameras are still outside. available today on our website. our phone lines are open. you support same-sex marriage --

yesterday, the decision to be decided, proposition 8, passed back in 2008. it basically says marriage is between a man and a woman. today, the defense of marriage act, which was this was signed by bill clinton. under the 1996 statute, dictates that federal law defines marriage between one man and one woman. yesterday, we checked in with robert and barns. we're joined live from the "washington post" news room. thank you for being with us. let's compare and contrast what you heard. guest: yesterday, we were

talking about the constitutional right to get married. today's argument was about when couples were already legally married and the federal government decides they will not recognize those marriages. today was more of a state's rights and questions of federalism. a little bit less about gay rights. what was the centerpiece of this argument? guest: this was brought by a woman named to edith windsor who had a partner for 44 years. they were married in canada. they lived in new york. when her partner died, she left her estate to miss windsor.

she had to pay more than $360,000 in taxes, which she would not have had to pay if she was recognized as the surviving spouse. with his questioning today, what did you learn? isest: we learned that doma suspect it's not doomed. -- if not doomed. he seemed to think that marriage is defined by the states. the nine states and the dishes at columbia that now recognize the same sex marriage. if they decide it, then the federal government should accept it. host: obviously the founding

fathers and the constitution establishing states' rights. there are nine states and the district of columbia that allow same-sex marriage. yet, you have the federal issues on social security, financial issues that come up by the federal government. that bothered justice kennedy. there are more than 900 references to marriage in the federal codes. this is intertwined in the daily lives of the citizens. far to that was going not have the federal law touch all of those marriages. makingthe chief justice a reference to barack obama. can you explain that? >> he was talking about the unusual way the case has come to the court.

the president and the attorney general decided that it was unconstitutional in couple of years ago for the very reasons argued now. it creates two classes of citizens, both of whom are legally married but the federal benefits only help one of them. the administration believes that this law is unconstitutional, but we're going to continue to enforce it and hope that it gets to the supreme court for a final determination of whether or not it is unconstitutional. the chief justice thought that that was a problem. he said of the president felt that the law was unconstitutional, he wondered why he did not have the courage of his convictions to just stop enforcing the law, which would have made it easier getting this case to the court. host: the first amendment in

full display. what was it like when you arrive at the court? give us a sense of what was like inside of the court. guest: it was another busy day. lots of protesters. a lot more gay rights protesters then i would say then there was those who are defending the traditional marriage as people would call it. in sight of another packed house, today's arguments for a lot longer because they had this question about whether or not the court should even be hearing the case. it took a little bit longer. there was a steady stream of supporters saying hello including the house democratic leader. by the lot is defended

something called the bipartisan legal advisory committee which is five house members made up of republicans and democrats. only the republicans wanted to be involved in this lawsuit but there are three of them and only two democrats. even though the former speaker is on the committee, she did not support this defense. host: you began your story with these words, "the majority of the supreme court questioned the constitutionality of the 1996 -- defense ofyor ja marriage act." guest: i think that you certainly heard from the liberal justices, a strong defense of a gay-rights.

talked about how the law was not a way to call a timeout with what has been going on with the debates about marriage but really an effort to discriminate against same-sex couples. she read from a house report that talked about the moral disapproval of homosexuality. i think that you have the liberal members very skeptical of this lot on those grounds. then, you had justice kennedy raising a number of questions. he seems more concerned about states' rights and whether the federal government is taking over something which is the definition of marriage that should belong to the states. host: what happens next? how did they decide on these

cases? what is the process? >> they will meet on friday and talk about them. they will probably take some preliminary votes and figure out where they come down on it. then they will sign writing the opinions. the chief justice, if he is in the majority. he decides who is going to write it. these questions contain some sort of threshold legal issues about whether the court should even be hearing them. i would imagine that it will take some time for the justices to sort out. i think that we should expect to find the answer to these questions are on the last week of june which is when the court finishes its work for the term. host: our guest was in accord.

his report is available on-line. thank you for being with us. now, on to your phone calls. again, whether you support or oppose same-sex marriage. you can also weigh in on our social media. we're joined from austin texas. one of my big issues is why is this even discussed if there are all of these grades in justice. people's rights are not being heard. there is a whole group of people that i feel that are not being talked about, not being considered. if your child, someone said, let themng to not

have -- america is a land of opportunity. if you are born in the u.s., you should be able to follow your dreams. someone is now telling you that you don't have the same civil liberties as everyone else just because their life style might be not a conventional. appreciate the call. the oral arguments are on our website. if two people of the same sex want to be a relationship, that's fine. charlotte is joining us from missouri. go ahead. caller: i believe that a child

deserves a mother and a father. where has this country's religion gone? you never hear them preach about this in church. ifthe bible, it plainly says a man lays with a man like a man, then his blood is on his own hands. what is god telling us? the country is not listening anymore. not listening. there are no more morals. what are we teaching our children when we bring them up? call.thank you for the you can also weigh in on our facebook page. your reaction to the argument on the issue of same-sex marriage. i just feel that everyone should have a right to love who they want to loves.

they want to get married, i don't see what the issue is. ever but it grows up entrance about their wedding. should they not have that because of their sexual preference? -- everybody grows up dreaming about their wedding. i think that everybody should be able to marry whoever they choose whether is a man or a woman. it should not be a big issue. host: thank you for the call. caller: i definitely oppose same-sex marriage. i do feel that our nation, starting with the founders have straight and we should follow our integrity being the u.s. that does not mean that something is permissible and

allowable is right. ok, thanks. caller: i think that everyone has a right to be happy, whether it is same sex or not. when it comes to the marriage license, i think that we should find out if people should agree to just call it a union license. they should have the same rights as any other human being on the planet. if it was separated that way, it would keep the religious people happy and also help the individuals that don't understand it. it would help them understand how to respect fully dressed as people. help everybody progress

and treat each other like human beings. we are all here with this gift of life. host: thank you for the call. there is some renovation work going on outside of the accord. has this point -- beforeintiffs appearing cameras after the cameras concluded. here is what she had to say. furious, very furious. listen carefully. really every word and i -- >> how do you think it went? >> i think it went beautifully.

i thought the justices were gentle. they were direct, they answered all of the right questions. orid not feel any hostility any sense of inferiority. and i very respected think it is going to be good. catherine, how did you feel in there? especially with chief justice roberts and his questions about political power. >> what they asked all the questions we expected them to ask and we had good answers. >> i can see my cousin. thatey are very hopeful

they will affirm the decisions of the courts below. anything stand out to give you a sense of optimism? >> i think all of the arguments gave me a sense that it went well, that it is good. herdsor and attorney is speaking in front of the supreme court. the high court taking up the significant issue with same-sex marriage and two days of oral arguments. nearly two hours today on the defensive marriage act, which was signed into law by president bill clinton back in 1996. today, president clinton issued a statement saying that the justices must decide whether it is consistent with the principles of a nation that honors freedom, a quality, and

justice. we go to alabama. you oppose same-sex marriage. why? guest: i believe that this is an abomination. if two people want to live together, they should call it a union and not a marriage. since the beginning of time, marriage has consisted of one man and one woman. thank you for the call. you can follow if the conversation on our facebook page as well.

can join the conversation, we're joined from colorado .prings, colorado guest: i and a stand how people feel, but since there is a separation of church and state, i don't believe that they can judge other people's marriages religious connotations. if there is a separation of church and state, someone else might define marriage in a different way. therefore, i don't think that they can support this. if they had done this with blacks and whites not being able to marry, a lot of people felt that that was against the bible and also an abomination. i think that there is no way

that they can uphold the slot. host: thanks for the call. we have this on our twitter page. we're joined from oklahoma. caller: i believe they are going against the bible. the guide was the first one to write the rules before the constitution was written. -- god was the first one to write the rules. they are headed straight to hell. georgia.go to you support same-sex marriage? caller: yes, i do. i think they should look at it differently. god said to love thy neighbor as

thyself. let us be who we are. i am gay. my family and friends love me. we should have the same rights as everybody else. why should a judge who we marry or don't marry? it feels like black and whites. black and white people get married everyday parent of this colored is merit to that color. it is nobody business whether we get married to this person or not. host: we go to stafford, texas. an opponent of gay marriage. caller: i am opposed to same-sex marriage but i have no opposition to them having a civil union. i believe that everyone has equal rights. i have no problem with them having a civil union but i don't believe they should have a marriage. i believe that is between a man

and woman. that is governed by god. host: thanks for the call. caller: this is sean from austin, texas. . am in a 28 year relationship that shouldthing not be judged. host: what do you mean by that? caller: nobody has the right to tell us how we can live, what we

cannot have. the constitution grants us equal i hearion under the law individuals coming in and quoting the bible. half the time they don't even know what they are saying in regard to the bible. someone called in and was quoting leviticus. she got it wrong. it was not god's words. that was other people who came .fter there are 10 commandments that you have to live by. it says that we should not judge our neighbor. thou shalt not bear false witness.

host: one of the questions the court will decide is whether the federal government defines a marriage. is that the responsibility of the supreme court to define marriage? what is a marriage? caller: it has to be done. ican tell you for a fact that have seen instances where we hade lost everything to go to a major corporation and represent our side of the story for domestic partnerships. they had decided that they were going to give the domestic partnerships. they wrote in a policy which did not give heterosexual living under the same roof the same

rights because they have the right to marry. marriage, whenever you want to call it, it is the right that i need. i had a major trauma, i was hospitalized. at that time, you find out what is not available to you. they have restricted life in such a way that you were treated like second-class citizens. it is time that it ends. you look at the federal statutes, look at the federal hate crimes. is this not hate? not people not

understanding a group of individuals and enact the laws against those individuals? because youderstand have given yourself to these moral obligations or whatever you are. int: thank you for coming and sharing with us. did you listen to the full two hours of 4 to arguments? caller: yes. i have hope that it will be overturned. host: thank you. we appreciate the call. a reminder that you have a chance to hear the oral arguments in their entirety at 8:00 eastern time. 5:00 for those of you on the west coast. also, a chance on c-span radio.

you can listen to it any time. mark is joining us from chicago. toler: i am totally opposed this with a the morality issue of the children and not growing up with men and women. marriage has been between man and wife. it started that way. it should finish that way.

will let you listen to this apparent to disrupt the 20 minutes. i if [applause] [applause]

>> could afternoon, everybody. i am the director of the lgbt project at the aclu and proud to be the council for each is indsor. -- for edith w i am joined by the other council in this case. we have with us the executive director of the new york civil

liberties union. then, a statement from edith w indsor. >> good afternoon. today's story tells a lesson of why we have a constitution. to bind us together as citizens of the one nation, all of whom are guaranteed to the equal protection of the law. that is no one individual personifies the concept of equal protection than my client. her latets, she met spouse in the early 1960's. they were engaged to each other in 1967. take a moment and think about that. in 1967. that was two years before the stone wall movement that led to

the modern concept. think about the self-esteem, the courage, the bravery, and the self-respect it took for two 1967 to become engaged. of her truly heroic part life is what happened for the next 40 years. when people get married to each other, they give a traditional marriage vow. that marriage vow is to have and to hold, to love in sickness and in health until death do us part. 12 years into their relationship, unfortunately her partner develop a terrible disease. if she had -- as she described it, the diagnosis happened to the both of them. throughout her illness, as she went from using a cane to using

a wheelchair, to only being able to use one finger, they fought together to make sure that her life changed in no way. she has continued to live a full life that she did. that is here with some. anyone of us, straight or gay, would be so blessed and lucky to have the spouse -- spouse of edith windsor. when i say that she purse on the sock -- personifies the concept of equal protection, she truly does. she deserves our constitution. thank you very much. >> hello, my name is pamela carlin, co-director of the stamford supreme court

litigation clinic, part of the co-counsel for miss windsor. over the door of the supreme court is written the words -- equal justice under the law. that is what we are asking for here today. equal justice for all the legally married gay couples in the united states. we walked down 44 steps, coincidentally how many years they spent together as a committed couple. we ask for people -- equal justice under the law here. the evolution of the rights of gay people has been a long road. in the 1960's the supreme court upheld the exclusion of gay aliens from the united states. in the 1980's the upheld laws limit -- making illegal the sexual behavior of gay couples. the supreme court has changed its understanding of the words of our constitution and we are

confident that today and in the future equal justice under law will be a reality for gay people as it is first-rate people in the united states. thank you very much. >> my name is james, director of the lgbt project at the aclu. about the defense of marriage act. the federal government does not very people, the state's married people. we also know that whether you are married or not makes a difference in a lot of different federal contexts. there are over 100 different federal laws that depend on whether you're married or not in some way. dependent benefits and survivor benefits, family medical leave to take care of your spouse depends on whether the federal government recognizes that your spouse does your spouse. yes, taxes change as well. at the same time there are these

different contexts and 130,000 married same-sex couples in the united states today. it requires the federal government to treat 130,000 married same-sex couples as unmarried. that is what caused this to happen. she was treated as on marry despite their 44 years together. -- on married -- not marry despite their 44 years together. in good times and bad, sickness and health, just like any other married couple. for the federal government to pretend that their marriage did not exist is on fair, an american, and unconstitutional. >> hello, my name is donna lieberman. the executive director of the new york civil liberties union. i am proud to stand here today

as part of teen windsor to chapel -- topple the defense of marriage act. my state, the state of new york, respects the rights of all couples, straight or gay, to marry. on the books,a is these marriages will not be equal. the federal government treats these families as if they do not even exist. it is time to put an end to doma and the two-tiered system of marriage it has forced on our state. time to make sure the federal government treats the marriages of all yorkers with dignity and respect, and the equality that they deserve. the federal government should never again be allowed to reduce the love of a married eedie and thea to

the deal -- legal status of strangers. >> hello, someone wrote me a large speech that i am not going to make, but there are a couple of things i wanted to say. i wanted to tell you what marriage meant to me. it is kind of crazy. we lived together for 40 years. the closet and could not wear rings. today i am out lesbian, ok? kind of overwhelming for me. when my beautiful, sparkling thea died of years ago, i was overcome with grief. one month later i was hit with a heart attack, known as broken heart syndrome. i realize the federal government was treating us as

strangers. i paid a humongous estate tax. it meant selling a lot of stuff to do it. it was not easy. i live on a fixed income. many people asked me -- why get married? we were older than 75 at that point. the fact is that everyone treated it as different. turns out that marriage is different. i have asked the number of long- range couples, gay couples, when they got married, i asked them if it was different the next morning. the answer is always yes. it is a huge difference. when our marriage appeared in the new york times we literally ,eard from hundreds of people playmates, schoolmates, friends and relatives, all of them congratulating us. because we were married.

it is a magic word, for anyone who does not understand why we , it is magic.ded i guess the other thing that we would say is that we did win in the lower courts and today is like a spectacular event for me. a lifesize kind of event. i know that the spirit of my late spouse is right here, watching and listening, and would be very proud and happy of where we have come to. thank you all. what was going through your mind? >> very serious. very serious. listening carefully. i have things on -- i am halfway death, but i had things on and heard every word, really paying attention. >> how do you think it went in

there? >> how do you think it went? >> i am not hearing. >> how did it go? >> i think it went great. i thought the justices were , if that's the word that i want. there were direct, they ask the right questions. i did not sense hostility or any sense of superiority. . felt very respected and i think it is going to be good. [laughter] >> how did you feel in there, catherine? especially about chief justice roberts and some of his questions about political power? >> the justices asked all the questions that we expected, we have good answers.

i think it was good. did. move right down the line? >> i see my cousins. hopeful. very we are not in the business of predicting what any justice will do. we hope that they will affirm the decisions of the court below. >> did you get that sense of optimism? >> all of the arguments gave me a sense, as i said before, that it went well. did you make of the earlier parts?e >> as you probably know, the court added those questions to the case. they're very serious, very technical questions. it will be up to the court, but we do feel confident that they will solve it for the case.

even if they do not, everyone else believes that she gets her money back from the federal government. >> there was a house republican report. how much sway do you think it will have? reasons whyhat the it will have influence on the below, this iss an incredibly unusual statute not within the constitutional provision to enact laws like doma, will influence the court. >> the court was skeptical to get into this debate. >> i did not have that sense at all. i think the court realizes it has the obligation to determine the constitutionality of this statute. in views and opinions nationwide, could you address that? people comee

around to accepting this? >> eedie to answer that. go ahead. >> at some point someone came out and said they were gay, which gave a couple of more people the ok to do it. behind masks and in closets, indeed. what happened is as we increasingly came out, people realize we did not have horns. people learned that we were their kids, their cousins, their friends, all of whom coming out for the first time. we weregrew to where like everyone else. it is the need to change. i would have been hiding in the closet 10 years ago. [laughter] >> what does it feel like to be here? can you believe that you are here?

>> thrilled. humble, it is great. >> [inaudible] >> doma cuts across federal law. the spouse cannot be properly notified. they married couples do not get the benefits of the family federal act when they need it. it means someone like eediedomas to pay a $300,000 estate tax bill by virtue of the fact that her spouse happens to be gay.

, on is unconstitutional constitutional matter the standard. we are hopeful the court will agree. >> are you hopeful that they will be accepting gay marriage as a fact? >> marriage for gay people is a fact. it is a fact in nine states already and is likely to be a fact in other states as it progresses. there was nothing unusual about the justices in the court understanding that as the facts on the ground today. excuse me for all the people who live in the district of columbia. i am a new yorker, i cannot help myself. >> this seemed like one of the most emotional moment. >> the court cannot be helped but be affected by the statute. it is not just one statute, not just one program. couplesredefinition,

who are already married under federal law. i think that the justices are acutely aware of that. >> can you talk about the pin you are wearing? >> what? >> the pin. , she said what would you do if we became engaged? i worked with some people that i loved, we went out together a lot. i never told the truth until five years ago, when i finally told the truth. what would you do if you wanted to be engaged, she asked, and you wore a ring to work? what would people say? they would want to know who he was. instead she gave me this pin,

which is a circle of diamonds, instead of a diamond ring. ok? that is my pen. -- pin. i am trying to excuse myself, if the people will not be mad at me. a lot of people came to see me and i am going to excuse myself to go see them. have got your bag. >> your name? >> anthony romero. romero. romero. national [inaudible] >> hello. >> hello, how are you? >> reaction from the attorney

and supporters arguing for the supreme court to overturn the defense of marriage act. a programming note, in a couple of minutes we will be able to show you the entire oral argument. it is also coming up this evening at 8:00 eastern. you will be able to call in with your comments afterwards as well. you can also listen to the oral argument on our website. coming up later this afternoon we will -- we will switch gears and bring you live coverage of the u.s. senate debate, democratic and republican hopefuls vying for john kerry's si. first up will be the republican candidates, former u.s. attorney michael sullivan, gabriel gomez, and daniel winslow. and then democrats stephen lynch and edward markey. again, our live coverage of that massachusetts debate gets

underway at 7:00 p.m. eastern here on c-span. the live look at the supreme court from earlier today, when attorneys and justices consider the constitutionality of the defense of marriage act, the federal law defining marriage as between one man and one woman, denying benefits to couples legally married in their states. the case was bought by a 83- year-old woman from new york yearsho married after 40 with her spouse. when her spouse died, ms. winter, whose marriage was recognized in new york, was the night exemption under the federal estate taxes. -- denied exemption under the federal estate taxes. they're looking for a real hot -- refund of -- refund of $363,000 in estate taxes. the argument begins with the question of jurisdiction and standing.

the oral argument is just under two hours. >> the petitioner of the united states does not ask this court for redress. the bipartisan legal advisor regroup still seeks redress in the form of reversal and asserts no recognizable injury. the merits of such a significant issue, this natural urge must be put aside because however important the constitutional question, article 3 prevents this decision here and requires this court and to await another

case on another day to decide this question. in the district court she alleged classical article 3 injury for which we -- for which she sought to redress. there challenge succeeds, they could obtain release, but to exercise jurisdiction on this appeal, when the united states asked for the judgment below, fully agrees -- >> who else is going to be aggrieved? meaning another person whose benefits or tax refund is withheld will be in an identical situation as sir. who else could comment? >> your honor, it is possible that in district courts where other taxpayers sued the united states that they would rule differently, at least one district court i am aware of doma even though

the government had switched positions. >> excuse me, if there is no jurisdiction here, why was their jurisdiction that the trial level? jurisdiction, why did the court ever have to get into the merits? if you have, let's say, a lawsuit on indebtedness and the debtor comes out and says they owe money, but i am just not going to pay it, that is the equivalent of the government saying -- yes, it is unconstitutional, but i will enforce it anyway. what would happen there is the court would enter judgment and say that if you agree that you owe it, by god you should pay. there be judgment right there without consideration of the merits. why did that happen here? questionsnor, the two

that you asked me, the importance of jurisdiction, the first answer is that the party invoking the jurisdiction had injury. as to why the district court did not enter judgment when the united states switched its i imagine that the court would have wanted to have development of that issue that was achieved through the intervention of the flag in the trial court so that the judgment of on constitutionality -- un constitutionality -- >> that is peculiar, from both parties agree. just for fun and they're going to have a hearing? your honor, the jurisdiction of the court is not affected by the length of the proceedings it

undertook. the am talking about why district court, without getting to the merits, should not have entered a judgment against the government. >> i am not sure i have a wonderful answer to that question, but i think the case bears some similarities to kentucky against indiana, where kentucky sued in the and in this court for original jurisdiction of the contract. indiana agreed that they were obligated to perform, but there were not performing. they were worried about the state court lawsuits. this court exercised jurisdiction to give kentucky relief. this is the analysis of what they did there. the issue today is the issue of up held the jurisdiction. the u.s. is seeking to invoke the appellate jurisdiction, not withstanding that it does not seek relief. >> the solicitor general

standing argument is very abstract. here is one possible way of understanding it. perhaps the solicitor general will disavow it. it will go like this. the president's position is that he is going to continue to engaging in, contact -- conduct that he believes the unconstitutional. the judgment of the second circuit tells the executive the equalcomply with protection laws immediately. the president disagrees with the key aspect of that. so, the executive is agreed in the sense that the executive is ordered to do something prior to the point when the executive believes they should do that thing. would that not be sufficient to create injury in the executive, rendering the executive an aggrieved party?

>> i think not. i do not see how that would be any different from any party saying -- well, we really do not want to take this judgment until we are sure that all of the courts agree. in the princeton university against schmidt case, there was a court conviction, where the state court overturned it. princeton university sought review for regulations at issue. the jersey joins in seeking review, but does not ask for release or take a position. >> i would not imagine. in an article two it says that the president shall take care that the law be faithfully executed. so, the president has worked out, personally and for reasons [indiscernible]

i have this obligation. because i have this obligation, i will not -- i will continue to thisaw. i will continue to execute it even though i disagree. i will execute with an authoritative this agreement not to. how is that different from a trusty? who believes he has an obligation to a trust? to do something under a certain provision that he thinks this not require that. but there is some debate about it and he says there is an obligation here and i will follow this through. there would be standing in the second case for any judiciary despite the personal beliefs to continue. >> i think the first would be able to go to a court of first instance. i am submitting to you that what the trusty could not do, after

getting the judgment from the court stating what the remedy of the volatility is, seek review of that judgment and ask only for -- >> that is the part that i do not understand. they would indeed have standing to act according to the law, even though he thinks the law as unconstitutional because of his obligation. you agree that there is standing when he goes into court the first time, which he could interpret as article two, and you follow it through. as long as you can do it. which he appeals until the matter is determined, finely and authoritatively by the court. if you can do the first, what suddenly stops you from the second? >> in the first instance the

obligations are that the trustee this subject to presumably adverse competing claims on his or her actions. >> i would have thought the executive obligation to execute the law includes the obligation to execute the law consistently with the constitution. that enforcing the terms is unconstitutional, i do not see why he does not have the courage of his convictions to execute the statute under his view of the constitution. rather than saying that they will wait for the supreme court to tell them they have no shores -- no choice. >> that is a hard question in article two. but the article 3 question that the court faces turns on what the parties in the case have alleged, what relief they are seeking, and what the posture is. >> you are saying there is a

lack of diversity here? >> the circumstances are unusual, but i think that the acts of the doctrines, although they reinforce each other, the most apt is standing. has toe party on appeal meet the same article freestanding requirements of addressable. i do not agree that it should be advisable. asked the court below to produce. article 3 requires that