party complaining of injury ask the court to remedy that injury. that is a very real import requirement under article 3. the controversy limitation is that there is a separation of powers here to make sure that the other courts perform properly. their proper role is the redress of injury in ordinary litigation that justifies constitutional issue. >> i need to go back to justice kennedy's point. he has injury in the most classic, most concrete sense. there is $300,000 that will come out of the government treasury uphelds decision is and it will not if it is not. the government is willing to pay that $300,000. we would be happy to pay the

$300,000, but we did the government is happy or sad to pay that $300,000, the government is still paying the $300,000. >> there is a contest. even if you treat that as injury, it does not meet the requirements for standing on appeal because the government has not asked this court to remedy that injury. the government has not asked this court to overturn the ruling so the court does not have to pay the $365,000. it has asked this court to affirm. the controversy requirements we are talking about are nested in an adversarial system where we rely on the parties to state their injuries and make their case for release. if the government or any party is not bound with respect to standings by its it titillated request for a remedy, that

enables support to fill in, to reshape, and for a document that is supposed to be limiting the occasions for judicial review of constitutionality -- >> does it separate these things? it says sometimes, when all of those are met, there is not going to be adequate presentation of the arguments, so we will appoint an amicus, or we will restructure things. we do that several times a year in this courtroom. thees, your honor, but concession of error cases with respect are quite different. both parties at the appellate level in the 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 between the united states and ms. windsor, there is no adversity. they are in agreement. neither of them is asking this court to reverse or modify the judgment below. so i think the concession of error cases are quite different from the perspective of article 3. agreement about correct legal arguments. i cannot think of a case, other than the sham cases -- which this is not -- where you would find no standing or other obstacles. i can think of one case, which you have not mentioned, that seems about identical. >> i do not think it is identical, with respect. for two main reasons. think, quite, i

careful to avoid deciding if the united states had article 3 standing. intensified a statute, and framed its analysis for whether the statute permitted the analysis for appeal. what was going on there was the court said the statute wanted to reach perhaps implicit -- not stated -- perhaps more broadly than article 3. congress said whenever you have this configuration, you go up to the supreme court. the supreme court said a court in addition to the statute, there might be an article 3 case controversy the presence of the

congressional intervenors here provided. >> thank you. that was more than a sentence. .> i am 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 the same reasons it had jurisdictions in perilous circumstances. there are two issues that have been brought up, and i would like to address each in turn. one is if there is a concrete case -- concrete case or controversy in the sense of adversity, and the second is the question of if there is article 3 standing. >> on the first one, is there any case where all the parties agreed with the decision below

and we of held appellate jurisdiction? parties agreed with the decision below and nonetheless of held appellate jurisdiction? not speak to it i love it -- >> that had the distinct situation out an appellate appeal. >> i do not know that that matters. the court is correct that the court did not permanently -- affirmatively engage -- >> putting that aside, any case? >> i do not know of one. >> this is totally unprecedented. 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. first is that it is unusual, but that is not at all surprising. >> it is not unusual. it is totally unprecedented. >> it is totally unprecedented

in one respect. let me make one point at the outset, which is that it is totally unusual. the reason it does not happen -- i would not confuse the numerator with the denominator, but the set of circumstances does not arrive very often. >> it has not arisen very often in the past because in the past when i was at the office of legal counsel, there was an opinion which says that the attorney general will defend the laws of the united states, except in two circumstances -- one, where the basis for the alleged unconstitutional the house to do with presidential powers. when the presidential powers are involved, he is the lawyer for the president, so we can say we think the statute is unconstitutional and he will not defend it. the second is where no possible rational argument could be made

in defense of it. neither of those situations exist here, and i'm wondering if we are living in this new world where the attorney general can "it isdecide, unconstitutional but not so unconstitutional that i'm not willing to enforce it" -- if we are in this new world, i do not want cases like this to come before this court all the time, if that is they will the new regime in the justice department that we are dealing with. scalia, one recognized situation in which an act of congress will not be defended in court is when the president makes the determination that the act is unconstitutional. that is what happened here. the president made an accountable, legal determination that this act of congress is unconstitutional. >> then why the need for a statute? >> that is an option that is

available to him. in certain circumstances, it makes sense to enforce, but i do not think it is an all or nothing proposition sets that when the president bush's determination it necessarily follows he would not enforce it. >> let me ask you -- suppose that constitutional scholars have gone on about the practice of the president sign the bill but saying that it is unconstitutional. it seems to me that if we adopt your position, that that would ratify and confirm and encourage that questionable practice because if the president thinks a lot is unconstitutional, he should not sign it. a lot like your argument here -- it is very troubling. in the past is turner broadcasting. that was a circumstance in which it was a veto, but in the course of the veto, the president made

the determination that particular aspect of that statute was unconstitutional. what happened as a result is that the department of justice did not depend -- defend that. my point is simply that when the president makes a determination that a statute is unconstitutional, it can follow that the department of justice will not defend it in litigation. >> sometimes you do and sometimes you do not. what is the test for when you tonk your obligation faithfully execute means you will follow your view about if it is constitutional or not or you will not follow your view? >> i hesitate to give you a black or white algorithm. several things -- several considerations would factor in. the presidentwhen thinks it is unconstitutional that you can decline to defend it? what if the attorney general thinks it is unconstitutional? or the solicitor general? is that enough? >> congress presupposes that

there will be occasions in which a statute is not defended because of a conclusion by the attorney general that it is unconstitutional. >> nt can be either the attorney general or the solicitor general? >> it could be, but this is a situation in which the president made a determination, and when the president makes that determination, there are two considerations that would factor into the mix in determining if enforcement would follow. one would be the consequences for the individual affected. i would assume that it is a criminal statute we are talking about an enforcement would require criminal enforcement against somebody for which they would get criminal sanctions. >> as he cannot be defended. it has no assurance that that statute will be defended in court if the solicitor general in his view thinks it is unconstitutional? >> there have been occasions in the past -- >> yes or no? ityes, it is true that

exactly presupposes that. that is exactly the case. congress knew that this would happen. it can also happen in the rare instance in which the president himself makes that determination. the president decides to enforce it. that is what happened in love lovett.t it -- >> we are talking about appellate authority. >> correct. >> the government sometimes loses cases, in the first instance, and then it does not appeal. and in the case in the first instance where there was adversity. decidees the government if we agree with the

adjudication, so we will leave it there, and when does it say, "we agree, but we want higher authority"? >> there are a number of considerations that could factor into it. you are right that either of those scenarios as possible. the president made the ,etermination for the statute that it needed to be in force. that was out of respect for the role of the judiciary in saying what the law is. the point of taking the appeal here is that the government suffered an injury because a judgment with issued against the government in the court of appeals. >> councilman, could you not run out of time on the grandstanding? that. run out of time on family-run a, i will be happy be-- >> your honor, i will happy to turn from the klan standing. the key precedent here is chata,

which establishes a couple of things. it establishes that there is agreement in a couple -- agreement -- agrievement. ?> how are you aggrieved that means you are deprived of your legal rights, and you do not think that you have been deprived of your legal rights obligations under the constitution supersede doma, and you have not been deprived of anything you are entitled to under the constitution. >> i subscribe to the analysis the court made in chata, and with the court said is this -- when an agency of the united states is a party to a case in which an act of congress is administered or held unconstitutional, it is an aggrieved party. the agency status of an aggrieved party is not altered madee fact the holding was

that the statute is unconstitutional. >> before you go on, can clear up something? in your brief, you argue you are representing all three branches of the government -- is that right? >> correct. >> you are representing the judiciary as you stand before us here today? you are trying to persuade the court you represent the court? >> we represent the common interest of the united states. we are submitting the dispute to the judiciary, in essence, i will not stand here and tell you that i can dictate that the judiciary comes out in one side or the other. i would like to do that, but i cannot in all fairness to that. m in a criminal case where it is smithited states versus appearing before an article 3 judge of the united states, with united states be the prosecutor as representing the court? >> i guess i would say that the executive branch represents the sovereign interests of the united states before the court.

i think the point of this is that it is not that the executive branch is representing the executive branch alone. it is representing the sovereign interests of the united states, which would include the interest of the congress had enacted the law, the interest of the president has signed it, and the interest of the judiciary pouncing with the law is, and in the course of that -- the course of that the president chose to undertake here is keeping in with all that. also left open the article 3 question. why does it leave it open if it is the same thing? it did not know why engage. the court did not have the methodology at that point in time that it does now. article theeft the question open, but i think it necessarily follows from aggrievement.

and if we are agreed, and to necessarily follows that we are injured. -- if we are aggrieved, it necessarily follows that we are injured. >> you said that congress could have standing in chadha? there was an argument that congress had standing because what was at issue in the case was precisely a prerogative of congress to exercise the one or two house veto. not know that that issue was joined. the court did say on page 939 of its opinion that congress is a proper party and a proper petitioner, and i think that is the best language on this issue. >> you say we should not be concerned about that part of chadha because the issue was not joined? we should take lovett as a

binding precedent even the the issue was not addressed at all? >> i did not mean to suggest that it is binding precedent. i'm saying that it is a case in which the same scenario which happens here occurred. was not joined. what do you think we meant? care, socalia does not what is your reading of what that means? that congress can intervene in situations in which its interests are injured? >> there are two aspects that are relevant. the second discussion deals with considerations that this court ought to take into account to make sure that it has sufficient adverse presentation of competing arguments before it, and that is accounted for by role and thee

cases cited in chadha were both cases in which there was an appointed amicus. the second aspect i alluded to earlier. i will not tell you that the sentence does not bear on the issue at all, but i will say this -- what is cited is 28 usd 1254. the point directly being made is that the house and senate for party for purposes of the statute, and there were parties because they had intervened. >> are you accepting the formulations that somehow the representative has to be of both houses and not just one? >> no, i guess my point is a little bit different. my point is just from talking about if they are a party from statutory purposes, i do not read this as a question of article 3 standing. i guess what i would say is this if it saysat most, anything about article 3 standing, at most what it would say is that in unique circumstances of that case where

you had a legislative veto that uniquely affected a congressional -- >> [inaudible] >> i do not want to can see. >> i want to know what you are conceding. let's take this very case. with whoever has standing on behalf of congress. are you saying there is never standing? >> this case is different. this case does not involve the kind of unique congressional profit of that was issued in chadha. here, i do not think the interest is being asserted even in the same plane as the one that was asserted and found deficient in raines versus [inaudible] you, mr. chief justice. may it please the court, this court not only address the standing of the house in chadha, it held that the house is the proper party to defend the

constitutionality of an act of congress -- >> chadha was somewhat different because there was a unique haus prerogative in question. how is this case any different than enforcing the general laws of the united states? there is no unique house power granted by the legislation here. it is a lot of the united states, and the person who defends it generally is the solicitor general. >> a share, generally, unless and until it stops -- sure, generally, unless and until it stops. >> why should the taxpayers have the right to come in? >> the house is in a different position in a case like this and in chadha from the general taxpayer. in a case like chadha, you are right that it was the one house case. that was the

but the house is not have standing to come and defend its core article one prerogative, which is to pass statutes -- >> that assumes the premise. the house did not know it was unconstitutional. [laughter] respect, justice kennedy -- >> we are talking about standing. what is standing at the outset? the outset of this, it is constitutional. >> it is a presumption that it's acts are constitutional. considerings was the statute, and asked that the justice department three times constitutional, and three times, the justice department told them that it was. i think it is a clear assumption that they should have clear standing to have that determination made by the courts. this court has held that in the context of state legislation. >> you do not think there is anything to the argument that in chadha, the house had its

own unique institutional responsibilities and prerogatives at stake? either one-house veto or legislative veto? that is irrelevant? >> i do not think it is irrelevant. i would say two things. one, i do not think there was anything particular about the fact that it was the house that exercise the one-house veto because the court allowed the senate to participate as well. it was really just the constitutionality of the legislation and perhaps the one- house veto going forward. i would continue to resist the premise, which is that the house prerogative is at stake here. the house single most important for other is to pass legislation and have that legislation, if it will be repealed, only be repealed through a process where the house gets to fully participate. >> you do not 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? >> no, i would say in a circumstance, the house would have the prerogative to file an amicus brief if it wanted to. when the executive is actually discharging its responsibilities, traditional obligations to defend an act of congress, if congress comes in as a party, it has the possibility of second-guessing the way their action is defending it, but if the executive is going to vacate the not have thatdo concern. >> my concern is sort of in the middle of the chief justice's on this one. let's say an attorney general decides a particular part of the statute is -- a particular application of a statute is unconstitutional and decides to give up on that application or decides that the application of

a statute might be unconstitutional so decides to interpret the statute narrowly, could congress then come in? >> in a particular case, which is obviously not this case, the executive decides, "we will not defend the statute as applied," in a situation, the house could come in. i think it is a matter of practice. it probably would not. it is not as though the house and senate are anxious to exercise its prerogative. it 30 years since the chadha decision, there have been few times when the house has come in -- >> does that include the court of appeals for just this court? >> that includes all courts but excluding the doma case. there were a total of 12 cases where the house intervened as a party. it is very important to understand that party status is critical. in this case, it does not make a huge difference, but in the

district court, that makes all the difference. >> we have always had the distinction between the public action and the private action. the public action, which does not exist under the federal constitution, it is to vindicate the interest in the law being enforced. when the government, state or federal, in fact, has the interest especially in executing the laws, that are given to the president, and they could delegate that interest. say that any legislature has an interest on his own without the delegation to defend the law is to import in that context the public action in to the federal government. that just has not been done, i don't think, ever.

i can see arguments for and against it, but i cannot think of another instance where that has happened. >> a couple of things. -- uld point you to chadha >> of course there is an interest in the legislature. in defense, a procedure of the legislature. that is not tough, but this is because the only interest i can see here is the interest in the lobbying and forced. i am afraid of opening that door. >> it is understandable. obviously, nobody is suggesting this is a best practices situation. >> think of another instance where that happens, that what this court has said, without any special delegations of the power of the state or federal government to execute the law, without any special delegation, a legislator simply has the power that a private citizen

would not have to bring a lawsuit as a party or defend as a party to vindicate the interest in the lobbying and forced, the lobbying voted for. i can imagine arguments on both sides. i'm asking you only -- is there any case you can point me to which will help? >> i can point to a couple of cases which may not be a complete solution and given what you have filled in. coleman against miller, which i do not think involves any specific legislative authorization, but you can distinguish it, i suppose. keep in mind that this court gave those 20 senators not just standing to make an argument about the role of the lieutenant governor but also gave them standing to make a separate argument, which is the only one this court reached, divided 4-4. the only issue the court reached was the issue about if prior ratification disables them to

subsequent legislative action, which is just a way of saying what they did is unconstitutional. hres5 is enough of an authorization -- >> could you tell me where the authorization is here? sendings consideration that right to the house, but the appointment that seems strange to me, if it is not in the statute, it is in the house rule. how does that constitute anything other than a private agreement among some senators? her where do they derive right, the statutory right, to take on the power of representing the house? i know they control the

procedures within the house, but it is a very different step than whong that they can decide can create standing in some way, provincial or otherwise, article 3 or otherwise. >> house rules are pursued to the rulemaking authority, approved in every congress -- >> what other house rule creates the power of the majority to represent the house outside of the functions of the house? >> i'm not sure there is another one, but that is the sole purpose of rule 2.8. >> this would be, i think, sort of unheard of. >> i don't think so. that is the same authority they gave the house, essentially predecessor to it, some authority that has been ever since chadha.

>> we do not even have a vote here. >> we do. we have a vote in hres5. the house passed a resolution that passed that authorized that they continue to represent the house in this particular litigation. there was a question before hand, there should not be now. >> under your view, with the senate have the 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 would not have standing to be on the other side of the case. they would have standing to be on the same side of this case. i think that is essentially what had happened. >> why not? you say the representatives standing alone can come into the court. why cannot the feds? >> because you would not have the authority to do so under chadha. chadha makes the critical flipping of the switch that

gives the house ability to intervene is that the executive declines. there is no need for them to in.icipate it does not make sense to have a party that once perceived as such it invalidated defend it in court. if it is invalidated will depend on what kind of record there is. consent judgment, and i suppose the thing would and then in the long run, the executive would be forced to do their job and actually defend the statutes, and that is not going to happen. >> why is it sufficient for one house to take position that the statute is constitutional? >> i think it makes perfect has the constitutional role where a statute is repealed. it takes two to make the law,

but each of their positive it -- participation is not necessary to repeal it. in the executive -- if the executive were to go into court and essentially shake the repeal a law, it makes sense that they say, "with a minute. we passed that law. it cannot be repealed without our participation." and each member of the house was part of the majority has the same interest in defending its constitutionality. >> i do not think that is right. carefully distinguished the role of a specific to the shared and the role of one of specifics -- of a judiciary and the role of one of the houses. i do think that the only alternatives here are to say that the executive absolutely must enforce these laws, and if they do not -- i mean, after all, i really do not understand why if they are not going to --

if they make a determination that the law is unconstitutional, why it makes any sense for them to continue to enforce the law and put executive officers in the position of doing something that the president has determined is unconstitutional. think about the qualified immunity implications for a minute. the house would have to be able to play its role, and it will have to play the role of the party, and amoco is just as not get it done. the executive -- the meat is just does not get it done. -- and the guests -- and meet get it amicus does not done. you recognize there's nothing inherently executive about defending the constitutionality of an act of congress. more importantly, there's nothing inherently un legislative. it is critical and absolutely necessary to ensure that at this presentation of the issue, there is no reason the house should have to do that.

participation is necessary, it should participate at the full party and it is critically important in the lower courts so they can take that position and allow for a meaningful defense of the standard. the alternative for the puts the executive branch in an impossible position. it is a conflict of interest. they are the ones making litigation decisions to promote the statute they want to see invalidated. at john appendix page 437. a motion to dismiss filed by the united states asking the district court not to dismiss the case. that is what you get under their view of the world, and that does not serve the separation -- >> it does give you intellectual whiplashed. i will have to think about it. >> it does. we saw in this case certain appeals were expedited, such appeals were not. they did not serve the interests of defending the statute. they served the distinct

interests of the executive. >> thank you, counsel. ms. jackson, you have four minutes remaining. >> thank you. i have five points i will try to get to. i've only answered part of the question you asked me earlier, and i just want to say the u.s. is asking this court to tell us to pay money. it is not asking for relief. justice sotomayor, you ask about how the issue could come up otherwise. private party litigation, employees against employers -- there is a pending that was cited in the brief of 287 employers on page 32, giving examples of how the issue could arise in private litigation. in addition, state and local government employees might have, claims inle, fmla which the issue could arise. on the question of what is the purpose of 1252 if it is not to

wascide with article 3, it raised by my friend in his argument. i wonder weather the court in -- either the court in chadha -- chadha was court in not voicing a wish list. as to the question of glaad, which has been fully discussed already, i do want to say that after the authorization, and to seems to me quite troubling and inconsistent with the court's was inh -- i think i t the plurality, where if a party has standing, they need to have it in the first court that they are in.

the rule just does not seem to say anything about the authority to litigate. theink that in addition, big problem here is the injury being complained of is inconsistent with the separation of powers. once the litigation is enacted, congress' authority to supervise it is at an end. it goes to vote in the executive branch. if the executive branch does it well or badly in the view of congress is in its domain. separation of powers will not be meaningful if all it means is that congress has to stay out unless it thinks the president is doing it badly. i think article to helps give shape to what kinds of injuries can become viable. finally, the two or three cases quoted by my colleague all

involve state level of government where the federal separation of powers doctrine were not an issue. unless there are other questions, i will sit down. >> could i ask you this question? on the question of the house the house, if one of passes a resolution saying that a particular group was always to represent us, do you think it is consistent with the separation of powers for us to examine if that is a correct interpretation of the rules of that house of congress? >> yes, i do. that resolution is not operating only internally within the house. it is in the world of the article 3 court, which this court and proceedings in it is in charge of. moreover, in the smith case, this court said that when the senate passed and after the fact

interpretation of what's a pyre rule meant, notwithstanding the great respect given to the senate interpretation, this court could reach and did reach an alternative interpretation. >> what did you think of mr. clement's argument that the laws is in- execute article two, but where the president does not in a particular law -- under those circumstances, a member of the legislature has the constitutional power -- a power that is different than the average person being interested in seeing the laws carried out -- they can represent the power to vindicate the interest in ,eeing that the lot is executed and that is a special interest is existing only when the executive declines to do so. >> your honor, i think that when

the executive declines to do so, it is exercising its authority. the executive should take care that the law is faithfully executed. i think the laws include the constitution, so i do not think the distinction offered by my colleague is appropriate. i think it would result in significant incursion on the separation of powers between the legislature and executive branch and would bring this, the federal court, into more controversies and have characteristics of injured branch confrontation in which this court has traditionally been very cautious -- characteristics of interbranch confrontation. >> i would like to note that we have argued the case and you have ably discharge your responsibility for which you have the gratitude of the court. we will not take a very short break. i meant that we would take a break, not the -- [laughter]

we will continue argument of the case on the merits. mr. clement. >> mr. chief justice, and may it please the court, the issue of same-sex marriage certainly implicates profound and deeply held views on both sides of the issue, but the legal question on the merits for this court is actually quite narrow. on the assumption that states have the constitutional option, either to define marriage in traditional terms or to recognize same-sex marriages or to adopt a compromise like civil unions, does the federal government have the same flexibility or must the federal government simply follow the terms in state law? i would submit the basic principles of federalism 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 constitutionally permissible definition or to borrow the terms of the statute. would problem is that it

totally thwart the decision of the state that if there is a marriage between the two people no the federal government, marital junction, no social security benefits. has benefits, but you cannot get leave. one might well ask what kind of marriage is this? >> i think the answer to that would be to say that that is a marriage under state law, and i think this court case is to talk about the fundamental rights of marriage. i take it to be talking about the state laws that is a marriage and the question of what that means for purposes of federal law and how it has been understood for a different matter. that has been true certainly in a number of situations under a number of statutes, it is simply not the case that as long as you are married under state law, you

are going to be treated -- >> [indiscernible] >> we have never had that, and i think there's a difference when it comes to divorce. with the voice uniquely, you have the possibility that somebody is married to two different people for purposes of state and federal law, but with the basic question of if to recognize the marriage, probably the best way to but it is in the federal law treats you as married for a particular purpose or not. there always have been differences between the federal law treatment and state law treatment. federal treatment, for example, recognizes common law marriages in all states where a lot of states do not recognize common law marriages. federal law recognizes that for some purposes. if the state recognizes it. >> i do not think that is true. >> federal common law definition? .> that is my and standing

>> if state law recognizes common law. >> mind standing is that state law recognizes, in social security context, and even if it does not, for tax consequences, even if you get a divorce every december, for tax consequences, the state may well recognize that. the state government has long said, "we will not allow you to get a divorce in december to get remarried in january so you have a filing status that is more favorable." the federal government has always treated this distinctly. i do think for the purposes of the federal is an issue, it matters that all doma does is take this time where it appears in federal law and find it for purposes of federal law, which would be a radically different case if congress had in 1996 decided to try to stop states from defining marriage in a

particular way or dictate how they would decide it. >> that applies to -- what? 1100 federal laws? i think there's quite a bit to your argument that the tax deduction case, which is specific, i of congress has the power, it can exercise it in any way it once. 1100 laws, which in our society means that the federal government is intertwined with the citizens day-to-day life, you are at real risk of running in conflict with what has always been thought to be a sense of the state car, which is to regulate parents, divorce, custody. >> first of all, the very fact that there are 1100 provisions of federal laws that define the terms "marriage" and "spoused",

there is a long way to showing that federal law has not stayed out of getting involved. a to has gotten involved in the context with there is an independent federal power that supported that. the second thing is the fact effects -- affects all 1100 statutes at once is the fact that it is an all it has ever reported to be it's a definitional provision. like all provisions in the dictionary act, and to defines the term wherever it appears in federal law. that was part and parcel of what congress was trying to accomplish with doma -- >> but it is not really uniformity because it regulates only one aspect of marriage. it does not regulate all of marriage. >> that is true, but i do not think that is a mark against it. isember, in 1996, congress addressing this issue because they are thinking that statewide

through its judicial action is about change the way it has been defined in every jurisdiction in the united states. when congress passed all of the statutes affected by the hadnition of doma, congress in mind a traditional definition. congress in 1996 at that point says states are about to experiment with changing this, but the one thing we know is all these federal statutes were passed with the traditional definition in mind, and if -- it has to be rational for congressman to say that we will reaffirm what it meant for purposes of federal law. >> supposedly looking just at the estate tax provision that is at issue in this case, which provides specially favorable asatment to a married couple opposed to any other individual or economic unit, what was the purpose of that? was the purpose of that really to foster traditional marriage, or was congress just looking for

toonvenience category capture households that function as a unified economic unit? >> i think for these purposes, if you go back to the beginning of the estate tax function, congress is trying to provide uniform treatment of taxpayers across jurisdiction. what was happening in 1948 when this provision was initially put into federal law was you had community property states and common law states. actually, a to as much more favorable if you were in a community law states and in a common law state -- it was much more favorable. congress wanted to treat citizens the same way no matter what state they were in. deduction federal based on marriage. that shows when the federal government gets involved in the issue of marriage, it has a

particularly acute interest in the uniform treatment of people across state lines. ms. windsor wants to point to the unfairness of the differential treatment of treating two new york married couples differently. in the court for the purposes of new york law, that is exactly the right note. for the purposes of federal law, it is much more rational for congress to say, "we want to treat the same-sex couple in new york the same way as the committed same-sex couple in oklahoma." or even more to the point -- >> that is begging the question because you are treating the married couples differently. we are saying that new york's married couples are different than nebraska's. 8 lawed that out of a hat treats them. just to be clear, what this case is about and how anomalistic treatment of two states is, this is not a case based on a

marriage license issued directly by the state of new york after 2011 when new york recognize same-sex marriage. of ms. windsor as mary depends on new york's recognition. >> a to would be the same thing if the state passed the law -- or congress passes a law which says it's all use 18 as the age of consent. now the law changes to 17, so if you are 17, you get married, then a tax deduction, and a medical, no nothing. corestates have the residential requirement of a year or six months or four months and congress says that unless you are there for a year, no medical thing, no no tax benefits of any kind. that would be perfectly constitutional? would not be arbitrary, would not be random, would not be capricious. >> i would say two things.

first question would be what is the relevant level of scrutiny? -- as bottom line here is you can imagine, i can make them up all day. differences between states have nothing to do with anything. residence requirements, a medical exam -- how old you are. when congress just passes a law, which takes about 30% of the people in united states who are married and says no tax deductions, no this, know that, no medical benefits, none of these good things, none of them, for about 20%, 30% of all married people. can they do that? >> again, i think the right way to analyze it would be to take what level of scrutiny is implicated -- if the level of scrutiny is rational basis, my answer to you would be yes, they can do that. talking about a rational basis -- >> there is not any. i'm thinking of examples, and i cannot imagine what it is.

no matter how irrational, there is nothing the uniformity. you see where i'm going? >> i see exactly where you are going. in every one of those cases, it would be decided on its own, but i do think there is a powerful interest when the federal government -- >> the first part. every one of those cases has to be decided on its own -- ok. is special that distinguishes and thus makes rational or whatever basis you are going to have here treating the gay marriage differently? >> again, if we are coming at this from the premises that states have the option to choose and then we come at this from the option that congress is passing this not in a vacuum, but passing it in 1996, what they are confronting in 1996 is the prospect that one state in

the judiciary will adopt same- sex marriage and by operating full faith and credit law, that will apply to any couple that wants to go there -- and states are thinking about doing this. it is a nice place to go and get married. congress is worried that people will go there, go back to their home jurisdictions, insist on recognition that they are same- sex marriage in hawaii, and the federal government will borrow that definition, and therefore, by the operation of one state judiciary, same-sex marriage will basically be recognized throughout the country. what congress says is, "wait a minute. let's take a time out here. this is redefinition of an age- old institution. let's take a more cautious approach where every sovereign gets to do this for themselves." says, "we will make sure that full faith and credit principles" -- >> what is the federal government the right -- what gives the federal government the right to be concerned at all the

definition of what traditional marriage is? you are saying, "we can create the special category -- men and women -- because the state has 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 and interest that is not theirs but based on an interest that belongs to the states? >> at least two responses to that. first is that when interest that supports the federal government's definition of this term is whatever federal interest justifies the underlying statute in which it appears. in every one of the statutes that affect it, by assumption, there is some article 1 -- >> so they can create a class they do not like -- hear, homosexuals -- here -- or a class they consider as suspect in the marriage category, and they can create in

that class and decide benefits on that basis, but they themselves have no interest in the actual institution of marriage as marriage. the state's control that. >> just to clarify, i'm not suggesting that the federal government has any special authority to recognize traditional marriage. if the assumption is that nobody can do it, the state cannot do it either, and the federal government cannot do it. >> i assume the states can. >> the federal government has two sets of authority that give it a legitimate interest to way into the debate. one is whatever authority on the underlying statute. the second and complementary authority is the federal government recognizes that it is a big player in the world, that it has a lot of programs that might give states incentives to change the rules one way or the other. one way to stay out of the debate andp

this and let the democratic process deal with this is to just say," look, we are going to stick with what we have always done, which is traditional definition. we will not create a regime that gives people an incentive to support federal law -- thwart federal law." in your more illogic argument. congress wanted to help the states, but in section 3, congress does not help the , so that is inconsistent. >> we are just saying they are preserving, helping the states in the sense of having each sovereign make the decision -- >> we are helping the states if they do what we want them to, which is not consistent with the historic commitment of marriage and questions of the rights of

children. >> that is not right. no state loses any benefits by recognizing same-sex marriage. what they do not do is they do not open up an additional class of beneficiaries under their state law that get additional federal benefits, but things stay the same, and that is why -- >> it is not a question of additional benefits. they touch every aspect of life. your partner is sick. social security. i mean, it is not as though there is this federal tier and it is only a tax question. statutes, and it affects every area of life. really, we are diminishing with the state has said is marriage. the state says there are two kinds of marriage, the full marriage and then this sort of

other marriage. >> the federal government is saying that within its own realm in federal policies, will be assumed that 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 definition. >> for the most part an historic week, the only uniformity that the federal government has pursued is that it uniformly recognizes the marriages that are recognized by the state. so this was a real difference in the uniformity that the federal government was pursuing, and it suggests that maybe congress had something different in mind than uniformity. we have a full series of cases which suggest the following -- which suggests that when congress targets a group that is not everybody's favorite group in the world, that we look at those cases with some -- even if

they are not suspect -- with some vigor to say, "do we really think that congress was doing this for uniformity reasons? or do we think that congress' judgment was affected by this this budget that does something that has never been done before is whether that sense of a pretty good red flag that that is what is going on. >> a couple of responses. i would take issue with the premise first of all that this is such an unusual federal involvement issue like marriage. not only has the federal government defined marriage for some purposes distinctly, it is also intervening in other areas -- the federal congress insisted

on them. in order to do it in have to create stable marriages because in the confederacy the slaves could not get married. they developed their own state to define who was married under those laws and federal government has got involved. we look at congress doing something that is unusual, that deviates from the way they proceeded, was their good reason? and in a sense you have to understand that 1996, something happened that in the sense is forcing congress to choose ofween its historic practice

referring the state and preferring uniformity. every state has the traditional definition. we defer. >> congress decided to express disapproval of homosexuality. is that what happened in 1996? >> the house report says that and that is enough, you should invalidate the statute but that has never been your approach. we're not going to strike down the statute because a couple of legislatures may have had an improper motive. we will look, is there any rational basis? invoked in trying

to defend the statute to. congress was trying to promote democratic self-government. in a situation where the legislature is on the verge of deciding this issue for everyone, for the state and the federal government. it makes sense. >> your statute applies to states where the voters have decided. >> that is true. i do not know that that fact alone makes it irrational and i suppose if that is what you think -- we have switched from federal power to rationale. there is a difference. we're talking -- we're assuming there is federal power and asking about the degree of scrutiny. they're intertwined. we assume that there is

federal power and if there is not federal power for the statutes in which these terms appear that is a problem but is not a doma problem. >> it is. the question is whether or not the federal government under the federalism scheme has the authority to regulate marriage. >> it doesn't have the authority to regulate marriage as such but doma defines the term as it appears in federal statutes. many of those provide benefits, provide burdens, some provide disclosure obligations. it appears in lots of places. >> congress could have achieved what it achieved under section 3 "married"g the term from the united states code and replacing it with something more neutral. it could have said certify domestic units and to find this in the way that section 3,

exactly the way doma defines marriage. with that make a difference? the federal government would not be purporting to say who is married and who is not married and it would be saying who is entitled to various federal benefits and burdens based on a federal definition. >> that would make no difference. the hypothetical hopefully demonstrates that when the federal government is defining this term as it appears in the federal code, it is not regulating marriage as such and it is important to recognize that people that are married in their state based on either the legislative act or by judicial recognition remain married for purposes of state law. >> when you started you started by i think agreeing that uniformity in of itself is not likely to prove sufficient, at least on a rational basis plus.

we can think of categories that are uniform. that is what you're beginning to get. so for what i have heard is, looking at it on the merits, there is a lot of harm and on the plus side what there is is we don't want courts deciding this. but courts as was just pointed out in some states, it is not courts, it is the voters. we do not want any courts deciding it. to many courts might decide it. what else is there? i want to be able to have a list. of release specific things that you are saying justify -- really specific things that you are saying justify the effort. i am -- want to be sure i am not missing it. i have those two that i mentioned, what else? >> i did not understand the courts were so central to your position. i thought you did not want the voters in one state to dictate

to other states and more than you would want the courts in one state to dictate to other states. >> that is true. the point is it is relevant here. the courts to dictate in respected -- respective time and in respect to all kinds of things and what i am looking for is what is special in your opinion about this homosexual marriage that would justify this, other than this kind of pure uniformity, if there is such a thing. let me get on record and take issue with one of the premises of this. i would suggest strongly that the three levels of scrutiny are enough. in all of this if you're thinking about the justification is that this -- and defend the statute there in the brief but it is uniformity. it is not just that, respect to this.

it pegged to the traditional definition that they knew reflected the underlying statute. they knew that it was the definition that was tried in every jurisdiction. a judicial decision. in this context there thinking about an individual, they go to ontario and get a marriage. a couple from oklahoma could have gotten this. the same day and gone back to oklahoma. and to the federal block perspective there is a rational basis in -- in treating this couples the same way. may please the court. the equal protection analysis in this case should focus on two fundamental points. what this section -- what does does, it excludes

lawfully married couples. the spouse of the soldier killed in 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? congress could pass a new law today that says, we will get federal benefits. when we say marriage in federal law, we mean committed same-sex couples as well, and that could apply across the board. or do you think they could not do that? >> we think that would not raise an equal protection problem like the statute does, mr. chief justice. >> well, no, my point is you do not think it would raise a federalism problem either. >> i do not it would raise a federalism problem. >> ok. >> in addition to denying these fundamentally important benefits, is who they are being denied to. >> you do not think there is a problem?,

>> we do not. question is what is the constitutionality for equal protection purposes and because it is unconstitutional and imbedded into numerous federal statutes, those statutes will have an unconstitutional effect. it is the equal protection relation from the perspective of the united states. >> you think congress can use its powers to supersede the traditional authority and credit of the states to regulate marriage in all respects? congress could have a uniform definition of marriage that includes age, constant, but -- >> there is a federalism interest at stake. >> with respect to section 3, the problem is an equal protection problem from the point of view of the united states. >> but the question of what the federal interests are and whether those federal interests should take account of the

historic state prerogatives in this area is relevant to the equal protection. >> it is central to the inquiry. i completely agree with that point. >> it would be central to the inquiry if congress went the other way, to? >> what -- section 3 imposes this exclusion on federal benefits on a class that has been subject to a history of terrible discrimination on the basis of -- >> i understand that. that is your equal protection argument. it is not very responsive to my concern i am turning it in answer to. you do not think federalism concerns come into play in this, right? >> i want to clarify. the equal protection question would be different from the other circumstance. >> i know the equal protection argument. >> that federalism concerns come into play in the following way. in that mr. clement has made the argument that whatever states can do in terms of recognizing

merit or not recognizing marriage, the federal government has commensurate authority to do or not. we do not think that is right as a matter or equal protection analysis because we do not think the federal government should be thought of as the 51st state. states as we told the court yesterday, we believe heightened scrutiny of to apply to the state decisions. >> you are insisting that we get to a very fundamental question about equal protection. we did not do that unless we assume that the lot is valid otherwise to begin with. we're asking is it valid otherwise. what is the federal interest in enacting the statute and is it a valid federal interest assuming before we get to the equal protection analysis? >> yes. we think that whatever the outer bounds of the federal government. the authority and there are certain the outer bounds would be apart from the equal protection violation, we do not think that section 3 apart from people protection analysis raises a federalism problem. but we do think the federal is of analysis does play into the

equal protection analysis because the federal government is not the 51st state for purposes of the interest that mr. clemons has identified on behalf of blag. >> let's get back to the example that you began with, where a member of the military is injured. let's say three soldiers are injured and they are in same-sex relationships and in each instance the other partner in this relationship wants to visit the soldier in a hospit. first is a spouse in a state that allows same-sex marriage, the second is a domestic partner in a state that allows that but not same-sex marriage and the third is in an equally committed loving relationship in a state that does not involve either. now, your argument is under federal law of the first would be admitted, should be admitted but the other two would be kept out? >> the question in this case, justice alito, is whether congress has a sufficiently persuasive justification for the

exclusion it has imposed. it does not. the only way in which that blag's arguments for the constitutionality of the statute have any prospect of being upheld is if the court adopts the minimal rationality standard of lee optical. >> let me take you back to your example. your position seems to me one gets in, two stay out, even though your legal arguments would lead to the conclusion that they should all be treated the same. >> the question before the court is whether the exclusion that doma imposes violates equal protection and it does because you cannot treat this as though it were a distinction between optometrists and ophthalmologists ezell lee optical tasted. this is a different kind of situation because the discrimination here is being visited on a group that historically been subjected terrible discrimination on the basis of personal -- >> but that is the same in the example that we 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. i said it would be subject to equal protection analysis and thereby be a problem. >> you think that as bad as well. all three of those have to be treated the same. >> despite state law. >> they have to be analyzed under equal protection principles but in a situation where the couple is lawfully married for purposes of state law and the exclusion is a result of doma itself, the exclusion has to be justified under the accord's production and analysis and doma will not do it. >> you think i think from her brief today and yesterday that on some level sexual orientation should be looked on as an intermediate standard of scrutiny? >> yes, your honor. >> heightened in some way. going back to the chief pose a question about a law that was passed recognizing common law out -- homosexual marriages, i think even if your theory that

might be suspect because that law might be suspect under equal protection, because once we say sexual orientation is suspect, it would be suspect because whether it is homosexual or heterosexual. the law favors homosexuals, it would be suspect because it is based on sexual orientation. >> you would have to oppose the heightened scrutiny equal 87 protection analysis, yes. >> exactly. and so when we decided race was a suspect class, people who are not blacks have received -- >> that is certainly -- >> strict scrutiny on whether the use of race as a class, whether they're white or black, is used -- is justified by a compelling interest. >> that is certainly true, your honor. if i could turn to the interest ast blag has identified supporting the statute, there are i think -- you can see what the problem is here.

now, the statute is not call the 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. is typically uniform systems, the system of respecting the said -- state choices and a system of -- that blag is advocating here and what blag has got to do to satisfy federal protection scrutiny is justified the choice between one and the other and the difference is the section 3 trace is a choice that -- section 3 choice is a choice that discriminates. so it is not simply a matter of sufficient to say uniformity is enough. section three discriminates. >> as soon as one state adopted same-sex marriage, the definition of marriage throughout the federal code had to change.

because there's no doubt that up until that point every time congress emeritus they understood there were acting under the traditional definition of marriage. >> i do not know. i do not know why you would not assume that what congress was doing when it enacted a statute,. to truly a statute that had the word marriage in it was assuming that the normal rule that applies in the vast majority of circumstances would be the operative principle. >> you do not think that when congress said marriage they had in mind same-sex marriages? >> at a. they may well have had in mind deferring to the normal state definition of marriage what ever it is. not that there were making the specific charges that my friend suggested they were. but whatever is the case, when congress enacted doma that, joyce has to be justified. the issue of uniformity does not just get you there.

because there is no uniformity advantage to section 3 as opposed to the traditional role. at a very basic level administrative concerns ought not to be an import enough interest to justify this kind of a discrimination under the equal protection clause. even if you look at them, there are no genuine administrative benefits to doma. if anything, section 3 makes federal administration more difficult because now the federal government has to look behind valid state marriage licenses and see whether there are about state marriages that are out of compliance with doma. it is an additional administrative burden. there is no administrative advantage to be gained here by what congress saw to achieve. and the fundamental reality of it is and i think the house report makes this clear, is that for any not enacted purpose of uniform become what administration, caution, pausing from any of that. it was enacted to exclude same- sex married, lawfully married

couples from federal benefit regimes based on a conclusion that was driven by moral disapproval. it is quite clear in black-and- white in the pages of the house report which we site on page 38 of our brave. >> that was the view of the 84 senators who voted in favor of it and the president who signed it? they were motivated by animus? no. the garrard conference in our brief and i think there is a lot of wisdom there, that it may well not have been animus or hostility. it may well have been what garrard described as the simple want of careful reflection or an instinctive response to a class of people or group of people who we want -- we perceive as alien or other. but whatever the explanation, whether it is animas, whether it is that more subtle, more on thinking, more reflective kind of discrimination, section 3 is

discrimination. and i think it is time for the court to recognize this discrimination, excluding lawfully married gay and lesbian couples from federal benefits, cannot be reconciled with our fundamental commitment to equal treatment under the law. this is discrimination in its most very basic aspect and the house report, and i certainly would not suggest it was universally motivated by something other than good will -- but the reality is it was an expression of moral disapproval of exactly the kind of this court said in lawrence would not justify the law that was struck down there. general, your bottom line is, it is an equal protection violation for the federal government and all states as well? tooks, your honor, and we the position we took yesterday with respect to marriage, the analysis -- >> is there any argument you can make to limit to this case to the federal government and not

the states? >> as we said yesterday we think is an open question with respect to the state recognition of marriage. they may well be able to a dance interests, they may be able to dance it. i should not say may well because i do think it would be difficult as we said yesterday. they may be able to a dance interests that would satisfy heightened scrutiny and justify non-recognition. >> but here -- >> the federal government is not in the same position. the federal government can act at the margins in influencing these decisions. the second circuit and the first circuit included there is no connection at all and that is because section 3 does not make it more likely that unmarried men and women in states who

confront an unplanned parent -- prevents you're going to get married. and elimination of section 3 would not make it any less likely that i'm married men and women are going to get married. it does not have any affect all. it is not at the margins. there's no interest at all in promoting. >> we're back where we were yesterday. it seems to me that it is a violation of equal protection everywhere. if it is, all states have to have something like pockets. then they have to allow marriage. you're not arguing they all have to allow marriage and you say no. with that point. >> our point here is that what ever -- man finished? whatever the issue is, whatever the outcome is, the federal government policy interests in advancing those justification's

is so attenuated that two federal courts of appeals have seen it as nonexistent and it cannot justify section 3. >> thank you. ?s. kaplan >> rian please the court. i would like to focus on why this fails under rational review. many thousands of people who are really -- legally married are being treated as on married by the federal government because they're gay. these couples are being treated as an married with respect to programs that affect family stability such as the family leave act. these couples are being treated as not married for purposes of interest rules, election laws, and anti-nepotism and.

her spouse passed away and she had to take $363,000 in estate taxes on the property they had accumulated during their 44 years together. >> can i ask you the same question, do you think there was a problem if congress with the other way, the federalism problem? you do not think there is an equal protection problem. >> right. >> congress said we will recognize same-sex couples, a committed same-sex couples even if the state does not for purposes of federal law? >> obviously with respect to mairs the federal government has always use the state definitions. what you're proposing is to extend the federal government extend additional benefits to gay couples in a marriage that do not allow marriage, to equalize the system. >> i am asking whether you think congress has the power to interfere with -- to not adopt the state definition if they are extending benefits. do they have that authority? >> the question is what the

distinction is. >> no. i know that. your following the lead of the solicitor general and returning to the equal protection clause every time i asked a federalism question. is there any problem under federalism principles? >> with the federal government -- >> with congress passing a law saying we're going to adopt a different definition of marriage than the state's one -- that do not recognize same-sex marriage. we do not care whether you do as a matter of state law, when it comes to federal benefits, same- sex marriage will be recognized. >> and has been certainly argued in this case by others that -- whether or not that is in any way the powers of the federal government. for the reasons just as kagan mentioned, we think the principles go forward a novelty question. whether or not the federal government could have its own definition of marriages would be a closely argued question. >> is your answer yes or no? is there federalism problem with that or is there not a federal

is a problem? >> i think the federal government could extend benefits to gay couples to equalize things on a programmatic bases to make things more equal. whether the federal government can have its own definition of marriage -- it would be closely argued whether that is outside the enumerated approach. >> all these statutes used the term marriage and the federal it includes same-sex couples, whether the state of knowledge is them to be married or not. >> i do not know if that would work because they would not -- >> what you mean whether or not it would work? i do not care if it works. does it create a federalism problem? >> the power to marriagemarry people is -- >> for purposes of all these federal statutes when we say marriage, we mean instead of saying we mean heterosexual marriage, we mean whenever we use it, heterosexual and homosexual marriage.

if that is what it says, can it do that? >> as long as the people were validly married under state law and met the requirements of state law to get married. >> no. >> i am not sure that the federal government could create a new federal marriage that would be some kind of marriage that states do not permit. >> let me get to the question. it gets rid of the word marriage, takes it out of the u.s. code completely, substitute something else and defines it as same-sex -- to include same-sex couples. surely it could do that. >> yes. that would not be based on the states -- >> is just the word marriage and the fact the use this term? >> that is what the federal carmen has always chosen to do and that is the way the law is structured and it has always been structured for two ordered years based on the state police power to define who is married. the federal permit could change that it wanted and somehow it would be strange for 1100 laz but for certain programs, you have different requirements of the marriage and that would be

constitutional or unconstitutional depending on the distinction. >> if the estate tax follow state law, would that not create an equal protection problems similar to the one that exists here? suppose there were a dispute about -- the state of residence of your client and her partner or spouse. was in new york, was the other -- some other state where same- sex marriage would not have been recognized? and suppose there was -- the state courts asaid that state of residence is a state where it is not recognized. would you have -- not have essentially the same equal protection argument there that you have now? >> let me answer that question very clearly. our position is in respect to the nine states and i think there are two others recognize these marriages. if my client, if a new york couple today mary's and moved to north carolina, one of which has a constitutional amendment and

what of the spouses dies, they would not -- a state taxes determine where the person dies, they would not be entitled to the deduction. that is not our claim year. moreover, in connection with a whole host of federal litigation there has been federal litigation for hundreds of years with respect to the residency of where people live or do not live or whether they are divorced or not your of the federal system. the federal government has always handle that and has never before -- and we believe this is why is unconstitutional, separated out a class of married gay couples solely because they were gay. >> what if the hypothetical surviving spouse, partner in north carolina brought an equal protection argument saying that there is -- it is not constitutional to treat me differently because i am a resident of north carolina. without any discrimination on the basis of sexual orientation? what would be the level of scrutiny that survives?

>> i would be a different case. similar to the case yesterday than today. we believe this should get heightened scrutiny. if it does not get scrutiny, the question would be what the state interests were in not allowing couples who are gay to get married. no one has identified -- and no one has identified any legitimate federal interest can possibly explain the discrimination of section tthree. -- section 3.

is being served by congress's decision, for the first time in our nation's history to the sovereign states with respect to eligibility for marriage. i would respectfully contend that this is because there is none. rather, as the title of the statute makes clear, doma was enacted to defend against the marriages of gay people. this discriminatory purpose was rooted in moral disapproval as justice kagan pointed out. >> what -- what do you think of his -- the argument that i heard was, to put the other side, at least one part of it as i understand it said: look, the federal government needs a uniform rule. there has been this uniform one man one woman rule for several hundred years or whatever, and there's a revolution going on in the states. we either adopt the resolution -- the revolution or push it along a little, or we stay out of it. and i think mr. clement was saying, well, we've decided to stay out of it >> i don't >> -- and the way to stay out of it is to go with the traditional thing. i mean, that -- that's an argument. so your answer to that argument is what? >> i think it's an incorrect argument, justice breyer, for the >> i understand you do; i'd like to know the reason. [laughter] >> of course. congress did not stay out of it.

section 3 of doma is not staying out of it. section 3 of doma is stopping the recognition by the federal government of couples who are already married, solely based on their sexual orientation, and what it's doing is undermining, as you can see in the briefs of the states of new york and others, it's undermining the policy decisions made by those states that have permitted gay couples to marry. states that have already resolved the cultural, the political, the moral -- whatever other controversies, they're resolved in those states. and by fencing those couples off, couples who are already married, and treating them as unmarried for purposes of federal law, you're not -- you're not taking it one step at a time, you're not promoting caution, you're putting a stop button on it, and you're having discrimination for the first time in our country's history against a class of married couples. >> is the >> now, the -- the discriminations are not the sexual orientation, but on a class of marriage; is that what you're >> it's a class of married

couples who are gay. >> so i pose the same question i posed to the general to you. do you think there's a difference between that discrimination and -and the discrimination of states who say homosexuals can't get married? >> i think that it's -- they're different cases. i think when you have couples who are gay who are already married, you have to distinguish between those classes. again, the federal government doesn't give marriage licenses, states do, and whatever the issues would be in those states would be what interest the states have, as opposed to here, what interest -- and we think there is none -- the federal government has. there is little doubt that the answer to the question of why congress singled out gay people's marriages for disrespect through doma. the answer can't be uniformity as we've discussed. it can't be cost savings, because you still have to explain then why the cost savings is being wrought at the expense of married couples who are gay; and it can't be any of

the state interests that weren't discussed, but questions of family law in parenting and marriage are done by the states, not by the federal government. the only -- the only conclusion that can be drawn is what was in the house report, which is moral disapproval of gay people, which the congress thought was permissible in 1996 because it relied on the court's bowers decision, which this court has said was wrong, not only at the time it was overruled in lawrence, but was wrong when it was decided. >> so 84 senators -it's the same question i asked before; 84 senators based their vote on moral disapproval of gay people? >> no, i think -- i think what is true, mr. chief justice, is that times can blind, and that back in 1996 people did not have the understanding that they have today, that there is no distinction, there is no constitutionally permissible distinction >> well, does that mean -- times can blind. does that mean they did not base their votes on moral disapproval? >> no; some clearly did.

i think it was based on an understanding that gay -- an incorrect understanding that gay couples were fundamentally different than straight couples, an understanding that i don't think exists today and that's the sense i'm using that times can blind. i think there was -- we all can understand that people have moved on this, and now understand that there is no such distinction. so i'm not saying it was animus or bigotry, i think it was based on a misunderstanding on gay people and their >> why -- why are you so confident in that -- in that judgment? how many -- how many states permit gay -- gay couples to marry? >> today? 9, your honor. >> 9. and -- and so there has been this sea change between now and 1996. >> i think with respect to the understanding of gay people and their relationships there has been a sea change, your honor. civil many states have unions now? >> i believe -- that was discussed in the arguments, 8 or 9, i believe. >> and how many had it in 1996? >> i -- yes, it was much, much fewer at the time.

i don't have that number, justice ginsburg; i apologize. >> i suppose the sea change has a lot to do with the political force and effectiveness of people representing, supporting your side of the case? >> i disagree with that, mr. chief justice, i think the sea change has to do, just as discussed was bowers and lawrence, was an understanding that there is no difference -- there was fundamental difference that could justify this kind of categorical discrimination between gay couples and straight couples. >> you don't doubt that the lobby supporting the enactment of same sex-marriage laws in different states is politically powerful, do you? >> with respect to that category, that categorization of the term for purposes of heightened scrutiny, i would, your honor. i don't >> really? >> yes. >> as far as i can tell, political figures are falling over themselves to endorse your side of the case. >> the fact of the matter is, mr. chief justice, is that no other group in recent history has been subjected to popular referenda to take away rights

that have already been given or exclude those rights, the way gay people have. and only two of those referenda have ever lost. one was in arizona; it then passed a couple years later. one was in minnesota where they already have a statute on the books that prohibits marriages between gay people. so i don't think -- and until 1990 gay people were not allowed to enter this country. so i don't think that the political power of gay people today could possibly be seen within that framework, and certainly is analogous -- i think gay people are far weaker than the women were at the time of frontiero. >> well, but you just referred to a sea change in people's understandings and values from 1996, when doma was enacted, and i'm just trying to see where that comes from, if not from the political effectiveness of -- of groups on your side of the case. theo flip the language of house report, mr. chief justice, i think it comes from a moral understanding today that gay people are no different, and that gay married couples' relationships are not significantly different from the relationships of straight

married people. i don't think >> i understand that. i am just trying to see how -- where that that moral understanding came from, if not the political effectiveness of a particular group. >> i -- i think it came -- is, again is very similar to the, what you saw between bowers and lawrence. i think it came to a societal understanding. i don't believe that societal understanding came strictly through political power; and i don't think that gay people today have political power as that -this court has used that term with -- in connection with the heightened scrutiny analysis. >> thank you, ms. kaplan. mr. clement, you have 3 minutes remaining. >> thank you, mr. chief justice, just three points in rebuttal. first of all, i was not surprised to hear the solicitor general concede that there is no unique federalism problem with doma, because in the gill litigation in the first circuit, the state of massachusetts -- the commonwealth of massachusetts invoked the tenth amendment, and on that issue the united states continued to defend doma because there is no unique federalism problem with it, as the chief

justice's question suggested. if 10 years from now there are only 9 states left and congress wants to adopt a uniform federal law solely for federal law purposes to going the other way, it is fully entitled to do that. it has the power to do that. i would say also the federal government has conceded in this litigation that there is a rational basis for this statute, something else to keep in mind. i would also say that this provision is not so unique. the very next provision in the dictionary act >> rational basis, mr. clement -- is a problem in your briefing. you seem to say and you repeat it today that there is three tiers, and if you get into rational basis then it's anything goes. but the history of this court is, in the very first gender discrimination case, reed v. reed, the court did something it had never done in the history of the country under rational basis. there was no intermediate tier then. it was rational basis. >> well >> and yet the court said this is rank discrimination and it failed. >> and, justice ginsburg, applying rational basis to

doma, i think that there are many rational bases that support it. and the solicitor general says, well, you know, the united states is not the 51st state to be sure, but the federal government has interests in uniformity that no other entity has. and we heard today that there's a problem; when somebody moves from new york to north carolina, they can lose their benefits. the federal government uniquely, unlike the 50 states, can say, well, that doesn't make any sense, we are going to have the same rule. we don't want somebody, if they are going to be transferred in the military from west point to fort sill in oklahoma, to resist the transfer because they are going to lose some benefits. it makes sense to have a uniform federal rule for the federal government. it is not so anomalous that the term "marriage" is defined in the u.s. code. thevery next provision of dictionary act defines "child." these terms, although they are the primary province of state governments, do appear in multiple federal statutes and it's a federal role to define those terms. the last point i would simply make is in thinking about animus, think about the fact that congress asked the justice department three times about

the constitutionality of the statute. that's not what you do when you are motivated by animus. the first two times they got back the answer it was constitutional. the third time, they asked again in the wake of romer, and they got the same answer: it's constitutional. now the solicitor general wants to say: well, it was want of careful reflection? well, where do we get careful reflection in our system? generally, careful reflection comes in the democratic process. the democratic process requires people to persuade people. the reason there has been a sea change is a combination of political power, as defined by this court's cases as getting the attention of lawmakers; certainly they have that. but it's also persuasion. that's what the democratic process requires. you have to persuade somebody you're right. you don't label them a bigot. you don't label them as motivated by animus. you persuade them you are right. that's going on across the country. colorado, the state that brought you amendment 2, has just recognized civil unions. maine, that was pointed to in the record in this case as being evidence of the persistence of discrimination because they voted down a statewide

referendum, the next election cycle it came out the other way. and the federal congress is not immune. they repealed "don't ask, don't tell." allow the democratic process to continue. thank you, your honor. >> thank you, counsel, counsel. the case is submitted. the argument this morning, -- newlinates versus >> you can see today's entire oral argument at 8:00 p.m. eastern into can listen to it any time on our website, c- span.org. in 50 minutes we will take you live to boston where candidates vying for senator john kerry's seat will face off in back-to- back debates ahead of the april 30 primary. michael sullivan and state representative daniel winslow and the democrats with congressman john lynch and edward markey. cbb tv.y of w

ms. judd made the announcement, saying i have spoken to so many kentucky fans who expressed their desire for a fighter for the people and a new leader. that will not be me at this time. i will continue to work as hard as i can to ensure the needs of kentucky families are met by returning the sea to whom it likely belongs, the people. last night, david petraeus address the university of southern california in his first public speech since resigning as cia director last november. general petraeus spoke about supporting what it service members and military veterans led his remarks by addressing his affair. we will show you a portion of

the massachusetts senate debate at 7:00 p.m. eastern. >> thank you very much. thank you, good evening to you all. things for that welcome and thanks for your kind introduction. thanks for your visionary, energetic, and inspirational leadership of this great institution. a true national asset and thanks to you and your team for your wonderful efforts to demonstrate such sincere appreciation and impressive support for those who have served our country in uniform. we're all grateful to you for that. [applause] i am very pleased to be here tonight with trojan nation and i think it is a nation, not just family. usd stands out as a leader in the effort to support our veterans,families,

active duty and to support those who currently serve our nation in uniform and will serve in the future as well. in the past day and a half i have been able to get acquainted with a number of your programs. speaking of that, where those intrepid rotc -- where are those rotc members who dewent with me this morning? [applause] it was a privilege to run with them. the and i are still standing. stilly and i are standing. despite experiencing the stairs in the coliseum. i look forward to spending time with all the cadets tomorrow. in any event, from europe

impressive rotc program to your world-class military social work initiatives, and your recent serving those who served endeavour to your office of veterans affairs and student veterans of america chapter, programs are truly exemplary and i know that all here appreciate that deeply. well done on that as well. again it truly is a privilege to be here with you this evening. all the more so given my personal journey over the past five months. i join you keenly aware that i am regarded in a different light now that i was a year ago when president -- the president invited me to speak at this event. i am keenly aware that the reason for my recent journey was my own doing. so please allow me to begin my remarks this evening by reiterating how deeply i regret and apologize for the

circumstances that led to my resignation from the cia and caused such pain for my family, friends, and supporters. but tonight is not about me. it is about your veterans, your active-duty military, and your honor -- rotc cadets and the efforts to support and recognize them and their families, particularly those who have sacrificed so much in the difficult campaigns of the past decade. as one who was truly privileged to serve with many in this room in cold war europe, haiti, the balkans, and above all, iraq and afghanistan, as well as various other places in the middle east, i am very grateful for the opportunity to say a few words this evening. but before continuing i should note that a southern california

native briefed me before coming out here on the usc-ucla rivalry. i used to do intelligence. this is asthat emotional relationship as that between army and navy its football season. theact, discussion of u.s.a.-ucla rival reminds me of a story i heard this afternoon. apparently there was very nearly trouble at a party downtown attended by some usd students a few weeks ago. the way i heard it, one of the leaned over to the eye and said do you want to hear a joke? >> before you tell a joke you should know something. i am 6 foot 5 inches tall and i

weigh 230 pounds and i go to ucla. next to me is a bruin 6 foot 3the next guy is and he goes to ucla. do you want to tell that joke? >> i guess not, the usc student said. not if i am going to have to explain it three times. [laughter] [applause] well, thanks for laughing. you know what they say in this town. i am only as good as the material they give me. [laughter] of course, that ucla student the dewomen's

volleyball championship or women's tennis or all those olympic medals in london. those brands are so sensitive. -- bruins de are so sensitive. is post 911 generation recognized as the new status -- greatest generation. the members of the post-9/11 cold war have responded with valor, purpose, a skill, and courage to the defining conflicts of their day. they have learned their place in along a line of patriot soldiers on whom our country has always

depended. we should also note that america has never had a group of men and women who on average have served so long in combat or have spent so many tourists down range. this is of course the result of our country. the shift from the drafting forces that fought our past wars to the professional force that has prosecuted our post-vietnam and in particular, our link the post-9/11 engagements. that is a policy with which i strongly agree, but one that obviously means that the burdens of military service are borne disproportionately by those who volunteer. well over 2 million servicemen and women have served in iraq and afghanistan and other places in the post-9/11 era. many have left the military. hundreds of thousands more will take on the uniform in the years ahead. in view of that, the focus of my

remarks this evening is these young veterans who have done so much for our country. in particular, i want to offer my view that while our country continues to improve its support for and recognition of these and all our veterans and their families, we can and must do more particularly in certain respects. it is in fact appropriate at an event such as this to ask what our nation owes our veterans. what are our obligations to those who have risked everything in the service of our united states? i believe that our responsibilities are four fold. we must look after the families of our fallen heroes. we must take care of our wounded servicemen and women. we must help our veterans transition successfully to the civilian sector and we must recognize and honor our veterans service.

first it goes without saying -- [applause] firsts without saying that we must do all that is humanly possible to look after our gold star families. our fallen, our fallen in the words of abraham lincoln, gave the last full measure of devotion in the service of our country and we must see to the needs of the loved ones they have left behind. second, our nation has to take care of those who returned for more with once, seen and unseen. changes everyone who has experienced it first hand. in some cases, the changes are positive. many returned home with greater resilience, a former sense of purpose, and a keener awareness of the blessings of life. however,, -- come home scarred and would it. this group includes those with

.hysical scars and wounds it includes those with the unseen wounds, posttraumatic stress and other mental challenges that can lead some of our veterans into a spiral of hopelessness that contributes to a suicide rate that remains far too high. regardless of the injury we must provide the assistance that is needed by those who have been wounded waging our country's wars. third, i believe our country must help our veterans transition successfully to the civilian world. doing so will help enable those who have served to continue to be all they can be in the next chapter of their life's journey. such efforts will not only strengthen our veterans, there will also strengthen our country. some veterans make the

transition relatively seamlessly. they begin applying their skills straightaway. in school and other forms of government service or in the private sector. however other struggle with the transition. we see this most starkly in the post-9/11 veterans unemployment rate which is typically several percentage points above the national average. we also see the transition challenges in some veterans who enter school or find new employment but still have difficulty developing new skills relating to napier's, or finding the meaning in their new pursuits of the experienced while in uniform. let me elaborate. there is often a view that because an individual was a great soldier, he or she will naturally do well in the civilian world. military experiences are seen as so exceptional as they assuredly will carry veterans on to further success.

fromality, the transition military service to civilian pursuits often is quite challenging. as many here now, hanging up the uniform and living ones comrades are very difficult. and neither going back to school or entering the civilian workforce is as easy as it might seem. in light of this reality, we need to ensure that the right transition programs are in place, whether they are the improved military transition assistance program now being offered at the conclusion of active duty service or other initiatives such as the college refresher course. better job skill training, transition measuring, or more in-depth assistance programs for veterans struggling with persistent unemployment or even homelessness. it is not enough just to have all these programs. we must also work hard to connect our veterans to them.

there are two reasons why it is important to help veterans realize their goals and -- in civilian life. first, helping those who have given so much is simply the right thing to do. second, it makes good business sense. veterans to bring distinct capabilities and valuable leadership experiences that often are exactly what businesses are seeking in today's marketplace. i might add that i recently agreed to support several non- profit organizations. the mission continues, american corporate partners, a team rubicon, and team red, white, and blue and i would likely will assist others as well. i am doing so because of the importance of programs that help our veterans identify and then make the most of the opportunities available to them. in fact, their representatives from these organizations and other veterans out its here this evening and i would like to ask

all of them to stand up and be recognized so we can thank them for what they're doing. [applause] while i am at it i should also note to that there are three representatives of the gray u.s. military academy class of 1974 this evening as well. they are small but wonderful bunch of guys. we clearly should recognize them also or will never hear the end of it from my west point classmate. please stand up. good to see that you are still sober. [applause] mentioned, there is one additional commitment our country has that needs to continue to recognize their

service and their sacrifice. this is important not just for our veterans but for our country. much has been made of the fact that a very small portion of the population is carrying out this generation's wars. veterans service is a small part of a larger effort we must continue to insure that the so-called civil military gap is as small as is possible. weer live now for a primary debate a former massachusetts senator john kerry. wo back to back debates with mike sullivan, gabriel gomez and dan winslow.

mocrats at 7:30, congressman john lynch and ed markey. his is courtesy of c-span. >> good evening everybody and welcome to the senate primary debate. 'm from boston massachusetts college. we have something rare in u.s. politics, an open senate seat. we have a chance to hear the democratics and republicans vying for their party's nomination. we'll hear from the republicans first, the democrats second. state representative dan winslow, former u.s. attorney

mike sullivan, and businessman gabriel gomez. thanks for being here tonight. a great opportunity to introduce yourselves to the voters of massachusetts and air some of the headlines today. there are time limits. no filibustering, save that for the united states senate if you get there. let's talk about issues and have a good conversation tonight. this first session one minute responses from each of you then 45 seconds for discussion. >> the republicans party post more tum of the 2012 campaign said the words that characterize the party scary narrow minded stuffy old men. make the case to massachusetts voters and independents that you're not those people. >> i don't need a hundred page power point to tell me what to

do or to talk about what we support as opposed to what we are against and the american core principles which are more personal responsibility and more freedom and a smaller government. we've been doing that in our campaign going out and talking about the core principles of the republican party and why they resonate with the people we are talking to. >> mr. sullivan, make the case you're not a stuffy old man. >> i'm proud to be a republican and proud to be a nominee in the republican primary. the people i'm talking to are concerned about issues around fiscal stability and national security. and they are concerned about issues relating to energy. i think we connect with people best when we listen to them. i've had the opportunity listen in the past and as a result of that had the opportunity to serve. i'm excited about going around

and listening to people in massachusetts. >> i'm proud to be a republican member of the party of lincoln, the core founding principles of lincoln, freedom and respect for individuals and opportunity and responsibility. these are principles that most massachusetts voters agree with. they just don't associate them with republicans anymore. the majority of voters will be women and new americans and we have to show them by reconnecting with who we are and what we stand for we're not the grand old party anymore, the scary party. we're the great opportunity party and gop stands for growth opportunity and promise and that's what we bring to nerve america no matter who you are or what walk of life you come from. >> if one of you is elected have you to try to work with democrats but can you work with

mitch mcconnell? >> absolutely, i can work with democrats and republicans and senator mcconnell as well which i'm a first generation american. i served in the military over nine years. the most diverse organization in this country is the military. we had people with all sorts of views. nothing ever gotten done without getting input from all the people and taking that into accounted and making decisions based on different people, different points of view. we did exactly what was right for the american people and that's what we'll do when i go to the senate. >> very comfortable working with anybody. i've spent my whole professional career doing that both in the private sector and government sector as well. it's something that people expect you to do as an elected member of government is to find common ground for the purposes of best representing the people of massachusetts as well as our nation. >> i've served our state as a

judge for almost 8 years and the chief legal council during the last recession. i have a record of problem solving and reform and result. you can't do that by yourself which you've got to be able to work with people, people of good faith. that's what i've down throughout my career which i'm interested in solving problems. that's what we have to do as americans and to move forward. that's what i commit to do if i'm fortunate enough to twin nomination. >> the supreme court has rapped up two days of arguments on same sex marriage, the prop 8 yesterday and defense of marriage act today. >> is doma constitutional or not? >> i think the united states supreme court is taking that up. i think they are fwoast make that decision. >> what do you think? >> i believe the definition of

marriage is best left to the democratic process. the process at the state level. massachusetts has recognized same sex marriages a decade ago. i'm in support of the repeal of doma regardless of whether or not it's constitutional. i think people in massachusetts that are recognized as married couples should be afforded the exact same benefits. >> i think the government is best governed closest to the people and for that reason i don't like to have federalized government where we can afford it. i think it's ashape the supreme court should decide this issue. the senate should decide by repeal of doma. i am for the right all across the country. >> i'm against any kind of discrimination as well.

i think if two people are in love they should be able to get married. i support repealing doma. this should be decide on a state by state level and i'm proud that massachusetts is the first state to legalize gay marriage. i hope the supreme court repeals doma. >> you would keep this at the state level? what about any constitutional lights for same sex married couples at the state level, can the state say we're not going to recognize it? >> that's on the premise that marriage is best defined by the state. my fed raist principles democracy works best when there is engaged citizenry. states define marriage. that's the best states to make those determinations. that's where significant social policies are best left to be decided at the state level. >> dan, >> i think this goes to the core values of who we are,

quality and freedom. and i think that if one of us are equal, none of us equal. i think we all need to be equal regardless of who you are or who you love. if toirp vote i would work to make sure that those principles were followed throughout my time in the senate. >> this is a state issue and this is coming up on prop 8 as well. the people of california spoke. i don't agree with what they did but you need to respect what they decided on a state by state issue. >> it's not clear to me where mr. winslow's position is. i'm not sure if states should make the decisions. >> i'm not clear on his position.

i support the marriage of quality for all persons throughout country and massachusetts. mr. sullivan wants to have government intrude into the personal lives of people about who they get to marry and i disagree with that. >> i'm very clear on where i stand. i'm against any kind of discrimination. if two people are in love they should be able to get married. it should be decided on the state level. i am for repealing doma. i'm against any kind of discrimination. >> the debate on taxing or cutting our way to a balanced budget focuses on things like social security, like medicare. what's your prescription for cleaning up the balance sheet? how do we save these programs? >> first of all, social security is the most successful domestic program in the history of the united states. it's an old house and needs renovation but we have to make

sure we preserve the house. for that reason in anything we do i will commit anyone receiving social security, that anybody 55 or older on the cups of qualifying, we have to ensure that the safe for those people. we have to make sure social security is available for future generations for people in their 20's thoirts and we have to make sure the system is balanced. i think we need to have something similar to the base relinement closing act. congress is incapable of making complicated decision and i would propose a bipartisan commission to present to congress for an up or down vote the fix that is to make social security solvent again so it's a promise doesn't all american people. >> the first thing we need to make sure is that the promise is kept to the people currently receiving these benefits and those approaching those

benefits as well which there are a lot of ideas out there that have bipartisan support. we have a lack of courage to tackle those issues in d.c. i think means testing should be done. warren buffett probably doesn't mean benefits on social security. you can increase the age by month per year and you'd increase it by two years over a 24 year period. those have bipartisan support and have the support of the people of massachusetts and the american people. what we have is a lack of courage for people to tackle these issues. >>s is, medicare. >> i would not defer my authorities and responsibilities as an elected member of the united states senate to a non-elected commission. that's the duties and responsibilities as a senator and i would be willing to make some of those difficult choices. saving social security starts with a budget that is passed by

the united states senate that is reasonable and begins to address these huge deficits that have been acrewing over the last several years and this enormous debt. the budget that was passed by the senate was four years in the making and it wasn't worth the wait. it proposes $3.7 trillion worth of spending, a trillion dollars worth of additional tax revenue. that does not make sense. as long as you have continued deficits growing social security and medicare will be at risk. >> there is the retirement fund and the disability fund. 20 years ago the trustees of social security warned in 2016 theth disability fund would become insolvent. they were there for at least half of them. in 2016 the disability sfund going to be insolvent.

what have they done about it? >> that's wrong. that's why washington isn't working. we've got to get those guys out of there. >> you are for means testing these programs. what about means testing social security? >> i think the means testing is something that should be on the table but my concern about it is it's not a welfare program. it's ain assurance program and people should pay into it and get their bargain. >> wealthy people can make a determination whether they want to decline the benefits or whether they want to give the benefits to a chartable cause. means testing is not going to save social security. >> president obama signed the healthcare bill into law three years ago this month. do you favor repeal of the affordable care act. what's wrong with it, what's right with it? >> i think the overall theme of

the obama care was right. to have more access at affordable and quality health care. i don't think he went about it the right way at the federal level. i would favor repealing obama care but that's not feezeable. what i would favor is giving the states the wavers they require to actually formalize with obama care and as long as it doesn't raise any taxes i'm for the wavers the states are going to require. >> i'm in favor of repeal of obama care. it makes no sense at all. the things we like about healthcare in our country is access and quality of care. the thing we don't like is the cost. the one problem we didn't like obama care didn't fix. cost is going up significantly. i speak to small businesses and they are getting huge tax

increase as a result of obama care. the two things welike best about healthcare quality care and access are going to continue to decline based on the way they provide reimbursement. fewer people will enter the healthcare profession. i think obama care should be repealed. the fact of the matter is people that are poor and uninsured have access to the quality of care and they have access to good doctors. >> obama care is bad for massachusetts. we didn't need it. we had solved the issue of quality care and access to care here in massachusetts and obama care larryed on federal bureaucracy. it took things away, it imposed taxes ob all of us and is not affordable and it's going to cost us jobs in massachusetts. i've proposed excel and exempt.

if a state has met the level of excellence that the federal government has determined the state is exempt from obama care and exempt from the taxes of obama care. and next week in the house of representativeses i propose healthcare had in massachusetts by 25%. it's called mandate life i'll be testifying on it next week in the house of representatives. >> i want to move on to the next session and that's candidate to candidate questions. brief question one minute to answer, quick follow up question if you want and a rebuttal. >> we'll start mr. sullivan to mr. gomez. >> every time you mention you are a first generation american and you served in the navy i think of my father. thank you for your service. >> it was an honor. >> can you describe the largest budget you've had to manage,

i'm talking about a budget in the private sector you've had to manage and the amount of cuts you had to you make in a budget you had to manage? >> in the private sector in the industry i was in, we invested in a lot of companies, they were small, medium and large. as large at $2 billion in revenue which i sat on the board. we're response to believe make sure that company is successle. we were responsible of managing that budget of over $3 billion and make sure the company was operating effectively. >> did you have an opportunity to manage any budgets at all? >> what i have to offer is i have a lot of experience. i served nine years in the military as a navy pilot and navy sale. i have experience in the private sector helping companies grow and be successful. people don't want people in politics for a good part of

their life. and they want somebody who understands what the economy is how it works. why companies are not hiring, why they are not ininvesting in their people and company. why there is too much uncertainty. i've got leadership experience and i've been effective my whole life. >> i'm not here to ask questions of my fellow candidates to try to tear them down or put them on the spot. however, i do have questions that are outside. >> you have to run against these two fellows first. >> i understand. but i think the people of massachusetts want answers to congressman marky and lynch favor the budget that never balances and have a trillion dollars in tax increases? >> you'll have a chance to ask them that question if you're the nominee. congressman nk

mark ki and lynch should have to answer whether they support the budget that passed for the first time in four years where it never balances and has a trillion tax increase and is it the right thing to do taxes? >> i guarantee you they would have voted yes for a trillion dollar tax increase. that vote was 50 to 49 in favor. if i were in the u.s. senate i would have been the vote that turned it around to be able to have our taxes spent wisely and well and get the federal budget under control. speaking on behalf of ed mark ki and steve lynch is not within my cape ability. we're not going to change washington by sending the same

entrenched democrat to twaug. it's not going to happen. we have to get one of us, any one of us is better than one of them. i just hope i earn that right from the republican primary. >> as i've gone around the -- e, i hear time

>> the annual deficit competed $48 billion. th budget that the senate just passed the government accounting office suggest somewhere between 3 and 5% is lost to waste. the fact of the matter is our senators are careless with regards to being stewards of the taxpayer's purse. i would be vigilant in identifying all that waste in the federal government. >> what are the other two specific propose tols reduce the federal deficit? >> i think have you sto reduce spending across a number of departments. i did it dan when i served in the department of justice in senior leadership positions.

we are called upon to reduce our budget on several occasions particularly to support the war effort. we did it gladly and it didn't effect the overall agency. i would not cut any funds that would put our and women in uniform in peril. the safety and security is vitally important. >> the top sick abortion. the 2012 republican platform says i'm quoting here the unborn child has a fundamental right to life which cannot be infringed. we the republican party support an amendment to the constitution and endorse legislation to make clear the 14th amendment legislation apply to unborn children. do you agree with your own party's position? >> i'm prolife. i've been prolife my whole

life. i don't recall a time i wasn't prolife. the only time people are curious in my position is when i decided to run for public office. i think as a nation we respect life and i'll do whatever i can to protect life. it's not lost on me there are two lives involved, the woman's life and the child's lifmente we have to support women that sometimes find themselves in a situation that they think is a crisis to make sure they are getting all the education and information they need to make the best decision they can make. we also have to be supportive i believe in changes of the adoption process to streamline it so people in our country are able to doment as easily as they are to adopt foreign born children. >> does that reflect your views? >> you read it, i haven't read

it. >> it is what it is. >> i think we have to be tract cal in terms of solutions. and a constitutional amendment requires a 2/3 vote in both houses of congress. we can't get two members down there right now to agree on which day of the week it is. it requires a three quarters vote by the states. that's a democratic process. >> i'm a big ten republican when it comes to social issues. i'm pro-choice. row v. wade is the settled law of the united states and i support a woman's right to choose. for me it's a very personal decision and for me consistent a limited role of government. the decision to have an aboppingsborgs is a question for a person's faith and herself and family i believe

that government has no place being in that. we have to focus on those many more things that unite us, jobs, the economy and deficit and debt. not those that divide us. for me if i'm fortunate enough to be in the senate i will always stand in support of a woman's right to choose. >> i'm catholic, i was raised catholic. i was raised prolife. i'm not going down to washington to change the law. roe v. wade was settled. it's established law and i agree with him. i do not support late term aborgs. i think you should have prent consent and i think the american people when i talk to the american people they are not talking about abortion. they are talking about the economy and the $16 trillion in debt and how we are going to fix that.

how we are going to get companies to invest in their people and themselves. >> we have three minutes left. i want to get at one foreign policy defense related question. >> iran is believed to be developing nuclear weapons and north korea has them. is there a trip wire that warrants military action? >> the greatest threat to the iranian people themselves and we have to increase the sanctions and not lose opportunities like we lost in 2009 when there was a start of the uprising. we need to make sure the iranian people are empowered to take back their country. there should be no daylight between us and israel on these issues. i know israel will not tolerate a went niesed iran.

>> israel is our cloastest ally which we have to support and protect israel. is there a trip wire? israel should do whatever it needs to defend itself. whether they have the ability to protect themselves so they are i mune from an attack f. they can protect their wentization then i think that's a trip wire to give israel the necessary means and green light to do what they need to do to defend themselves. >> there needs to be a trip wire and i'm confident there is a trip wire. there say trip wire put in place by israel. i've had the opportunity to do work with counter arts in israel during my national security work. and the fact of the matter is they have to make sure their national interest is protected. it is greatest ally in the world, we have to support them in every measure as well. >> let me get in one.

bernanke's term snup 2014. does he warrant another one? >> it's up to the senate? >> it's up to you if you're not senate. >> i would like to see somebody different in there. >> i would say no. we are on a bad path. >> i would say no and i will post on dan.com why. >> coming up next second half of our debate this evening. we'll meet the democratic candidates. we'll back with them. more issues to discussion. the debate continues in 60 seconds.

[applause] >> the second half of this debate coming up shortly. the ohn kerry became candidate. a poll among republican voters michael sullivan holding the support of three times as many voters as the other candidates. among the democrats ed mark ki has an 11 point lead over stephen lynch. the primary on april 30. the candidates the republicans were asked about the defense of marriage act in the previous debate and i want to remind you coming up at 8:00 tonight we will bring you today's oral

. gument we'll follow that with your alls and comments. >> welcome back to the second half of the massachusetts senate primary debafmente we turn our attention to the two democrats in this race. stephen lynch and fifth district congressman ed markey. >> we'll direct questions to both of you and then one noin answer. the filibuster is something you save if elected to the senate. i will hurry awe long. a lot to get through in this half hour. >> capitol hill is gridlock, congress's job disapproval

rating is 80%. the people's business is not getting done. why should the voters of massachusetts think that two encome bents more than 30 years on the hill, more than a decade on the hill, why should they think two incumbents are the answer and not the problem? >> well, anyone who knows me know that is i take on the tough issues and i get results. i've passed dozens of bills with republicans bipartisan that are now the law of the nation. i want to take my experience over to the united states senate in order to make that institution work better. we've just lost 75 years of experience with john kerry and with ted kennedy. i took on the nra and their attempts to keep chinese assault weapons to the streets of our country. i was successful in keeping

those guns out of our country. i was successful this legislation that led to tens of thousands of new jobs being created here in massachusetts. i'm leading on a clean energy revolution that is creating jobs in the massachusetts economy. i'm running because the tea party is particle liesing our government. over in the senate we can get things done. >> thanks for having us. i want to thank ed for attending as well. i think your question was how to get people to work together. one of the problems we have in the senate right now that i could help with is you've got -- same as in the house, you've got people on the hard left for the democrats and hard right for republicans and sometimes the party positions solid fy that intract ability.

i think people know my record is i don't work for pelosi and i won't work for harry reid. i've taken positions outside the direction of my party, trot across the aisle when i can. there is a difference between compromise and vender however and i do agree with ed on the one point that sometimes the intractable positions taken on the hard right with tea party members leave us no alternative. >> the healthcare reform bill was signed into law three years ago this month. congressman marky you voted for it, congress lynch you voted fence it. how did you come to different conclusions? >> there were three major flaws with the health affordable care act. one was it gave a trust

exemption to insurance companies that allows them to keep prices high. the second thing it did was it took away the limited amount of competition that we had with a public option which allowed states to go out and create competition in the insurance industry by offering low cost plans. the third flaw was it piled taxes upon taxes upon taxes upon healthcare. and so now we have a situation where employers are running away from their healthcare obligation. it was a very flawed bill and we missed a real opportunity to create real healthcare reform. >> the vote for president obama's healthcare bill was the proudest vote of my career. it ensured that if a person has a preexisting condition that they cannot be denied health insurance, that every child in america would have healthcare.

that if a person in a family became ill that family did not become bankrupt. this was an important bill that ted kennedy had been fighting for for a generation. every republican in the house of representatives voted no on that bill. every republican running for the senate of massachusetts this year is saying they would kill obama care. steve, when that vote came up, you were wrong when you were needed most than bill. that was the only option we had to support president obama and to put that bill on the books. >> rebuttal? >> sure. what we did there was wrong. we had one opportunity provide good healthcare reform. in the negotiations with the healthcare companies and insurance companies and the pharmaceutical companies, what we wanted was affordable health care with wide access.

what the insurance companies wanted, they wanted 31 million new customers. we gave them everything they wanted in that bill. it was like a hostage situation where we not only paid the ran some but we let the insurance companies keep the hostages. now we're in a tough spot. you're supporting repeal of sections of the affordable care thact you voted for because you realize the medical device tax is killing manufacturers in our state. more and more people who voted for it are picking sections out of the bill saying we don't like that but we voted for it. >> from hair truman through ted kennedy, we fought hard as democrats for national health insurance. that bill was the only bill on the floor. scott brown had just won the seat. ed the preexisting conditions, every child covered, seniors

covered for prescription drugs, women not discriminated ever again so they have to pay more than men, all of that was in that bill. the republicans are going to try to repeal it. and i want to go to the senate to make sure they do not repeal that historic piece of legislation based on massachusetts law. >> two very quick followup. are you in fact in favor of repealing sections of the affordable care act as written? >> as long as those repeals do not harm poor people or middle class in our country. >> would you vote to repeal it? >> no, i would vote to fix it. we've already given away everything to the insurance companies. they now have the 31 million new customers and they don't want to come to the table. >> i want to move to abortion which over the years your positions have changed. you first ran with the support

of anti-abortion groups. in the 1980's you changed. mr. lynch you say there say constitution al right to abortion but call yourself prolife. i'd like to you explain how you came to the positions you have today. >> i'm proud to have the support of planned parenthood in this race. for 30 years i have been a consistent supporter of a woman's right to choose. i believe that a woman should make that decision only in consultation with her physician, her family and herself. and it's something i believe has to be protected at all costs. and for 30 years that has been the position which i have taken. and so it just is a core constitutional belief that i have that row v. wade must be protected but even when two

votes like the pac amendment comes up that would deny a woman insurance coverage so that abortion would be covered from an insurance company perspective i made sure i voted against that amendment, steve voted for it. >> square your position for us. where are you? >> i refer to myself -- i consider myself prolife. i've read recently a.m. and heard i'm not prolife or not prolife enough. i'll confess i'm not an expert on church teachings but i am an expert on what i believe and don't believe. i don't believe that attacking row v. wade is part of any solution. attacking row v. wade won't make abortions go away, it will just change the setting from a clinical setting to one that is more dangerous for women. that's why in my time in the house i've taken the floor of

the house of representatives to defend funding for planned parenthood because they are the ones that are out there with birth control counseling to reduce the number of unwanted pregnancies which is the real goal if we want to reduce the number of abortions in this country. that seems to be working. the periods of the last two years where we've had the greatest access to continue september tives we've seen a drop in the number of abortions. that's the approach we should be taking. >> i believe it's a fundamental right. it's a constitutional right. >> why did your position change in the 1980's? >> 30 years ago i just came to the logical conclusion that that is a decision which a woman has to make for herself again in consultation with her physician and her family and it's been 30 years and that is

why planned parenthood has endorsed me in this senate race. >> i want to say one thing, you mentioned the stu pac amendment. even that had an exception for rape and incest. your provisions that you provided before you changed your position actually went after that. you actually supported an amendment to overturn row v. wade. so it's not just an evolution, this is ack bat i cans on this position. >> i've been a consistent supporter. and again that's why i have the support of planned parenthood in this race. 30 years. three years ago steve was denying insurance coverage for this option ve provided to her. >> in this state it's covered by medicaid not the federal

government. >> let's move to candidate to candidate questions. we want to do several round of this. quick question, one minute response, quick follow up and 30 second response to that. >> ed, recently you supported the wall street bailout that bailed out wall street's biggest bank that is caused a massive problem for the american people and destroyed trillions of dollars of wealth for a lot of families. in ook $787 billion taxpayers, you took their money and gave it to wall street. then when the american taxpayer was up against it with the debt limit crisis you voted not to rescue them. so you bail out wall street and you refuse to rescue the american taxpayer. i'm curious how you reconcile

those two votes. >> in 2008, we were in the eight year of bush turning wall street into a casino. he has regulators had turned a blind eye, the economy was collapsing, the banks were clapsing, we agreed that we could not allowing the banking system to collapse on to the hopes and dreams of every family in our country, not just a small number of people without bank accounts, there would have been tens of millions of people without bank accounts if those banks had collapsed. so for me it was a decision not to bail out the bankers but rather to ensure the financial system did not send us back to the great depression which is what many economist were predicting would happen if we did not cast that vote. i voted for mainstreet to make

sure all those hopes and dreams were not destroyed. we are now in the 34th consecutive month of an economic recovery because we made sure our economic system did not collapse. >> the bill you voted for did not bail out mainstreet. the bill was supposed to in theory help mainstreet. but what happened was the banks just stuffed their banks full of cash, number one, and never increased lending and so you can take credit for something that never happened i guess, but the bailout was something that has to this day insured these banks will grow bigger and bigger and they've learned nothing from the lesson. >> i voted against the repeal of glass seeing gallon in 1e9. i did not want them to get bigger. but i have h to deal with the

reality of what happened after george bush turned a blind eye. i'm the author of the laws that would have controlled derivatives and false swaps. newt gring rich blocked me from putting those protective laws on the books. ordinary families had to be protected because if the banks went under there would have been a financial calamity we would not have recovered from for a generation. >> we had a decision to make on 2011. uester back in in that bill we knew that there could be cuts to the national instutes of health budget, two pell grants, to investment and clean technologies. i voted no on the sequester, you voted yes.

could you tell us why? >> absolutely. we were up against the debt limit so we would have defaulted on all of our debt for the entire country. so we over $16 trillion in debt. so if we had not voted to increase the debt limit which mr. marky did, then our ability, our credit rating would have plumented and the interest increase on the $16.3 trillion at the time would have been subject to a much higher interest rate. so we would have dug ourselves a deeper and deeper hole right away. what the debt limit compromise did was it allowed us 18 months i believe it was to come up with a plan that created a super committee that was supposed to come up with a plan with a scalpel go through the

budget and figure out what areas to cut. unfortunately the super committee was never able to do that. but the idea was either we were going to have a disaster right away or give ourselves 18 more months to try to come up with a plan and respond. >> the sequester could lead to the loss of 60,000 jobs in massachusetts this year and that's just the first of nine years in terms of these cuts in programs that are right at the heart of the massachusetts invasion economy plan. that's what we are. beer buy tech, we're clean tech and education and healthcare. when these cuts hit, they hit us hard. they are going to hit our economic growth and hit us where it hurts most which is this future oriented economy which we have which is going to be seriously harmed by sequestration. >> that is contrary to what you did on the affordable care act because you put such a

tremendous tax on medical device manufacturers that the medical device manufacturers in my district are looking at expanding in ireland because the taxes you put in are so high. so that's become a real problem as well. >> in addition to bailing out the wall street banks, you also voted for nafta that shipped hundreds of thousands of jobs to mexico. didn't do much for them either because they are struggling and you decided against the local fisherman. and this is a pattern and it happens in telecommunications industry too where you are siding with the big guys. those are small businesses too. you are the only member of the mass mals delegation that did to put them out of

business and allowing national corporations to control the whole food source in our fishing areas. what's up with that? >> we've got the issue. well i was out on the house floor just six weeks ago trying to get an amendment on the floor to bring disaster relief post hurricane sandy to all of the fisherman in massachusetts. i didn't see you out there during that effort to have that vote on the house floor. i do believe that we have to have a plan for our fishing industry. it has to be based upon conversations with the local industry. but just to tell you, telecommunications i took on the monopoly steve which i broke them down. break them down in the telecommunications act

unleeshed $1 trillion worth of private sector capital that created thousands of jobs, google, and ebay and facebook and twitter. but there are thousands of other companies many in massachusetts whose names we don't know that are the heart beat of the economy in the state of massachusetts and i'm proud of taking on those monopolies because that was stunting our ability to be the engine growth of massachusetts and our country. i want to say look, the fisherman don't want disaster relief, they just want to fish. if you think we've controled the monopolies in telecommunications. i want everyone to open your cable bill and take a peek inside.

do you think you are being treated fairly by the telecommunications industry. >> when i passed my bills in the 1990's people did not pat their pockets to make sure they had their mobile device with them, that they had all of these new information technologies and that revolution has wrapped around the world in 17 years which i'm very proud of that. >> steve, you're a real champion for the va. i'm concerned about what could happen to our veterans coming back from iraq and afghanistan. could you tell us how you view what the solution has to be to make sure that the care is there for the people that served our country? >> that's a very kind question and you're a gentleman for asking that. as you know, when i first came into office one of the first

receptions they'd, ed was there, ted kennedy was there. he said congratulations, you've been assigned to the veterans affairs committee. and he said that's the good news. he said the bad news is they want to close all three of your v.a. hospitals down. i'm happy to say now with the help of not only ed markey but the other members of the delegation and senator kennedy we were able to push back. and now not only are those three hospitals open but they are being expanded. what we are missing right now to your point, ed, is we are getting a lot of our sons and daughters coming home from iraq after three or four or five tours of duty and we are missing something. we are not correctly diagnosising the ptsd and the

t.b.i., the traumatic brain injury and that is a crisis on the horizon we haven't dealt with yet. we need more funding and better diagnosis on those veterans coming home. >> we fought two wars. we did not pay for those two wars, we just put it on the cuff. that was wrong. they are the first wars we did not pay for. i agree with steve. the one thing that we should obligate ourselfs to paying for is the care for these veterans for their retirement, for their healthcare, for their rehabilitation, for their proiment and we should not shortchange any one of these veterans for his work in that area. -- i honor steve for his work in that area. >> unemployment is easing. real estate is coming back, stocks are autopsy.

those are all goods signs. but working and retired folks with savings accounts have in effect subsidized this recovery because of low interest rates. is it time to take the foot off the gas pedal and let rates inch up even if it affect it is pace of the recovery? >> i'd like to believe the economy is doing well but that's not the case of communities of color. if you go to fall river, if you go to brockton massachusetts. last week i did a walk through dudley square, there is some construction there but i need to see more folks from the neighborhood, more people of color on those jobs. if you look at the unemployment rate among people of color across our state, the recovery may be reaching wall street, it may be reaching state street

but it's not reaching blue hill avenue. we had an opening of my headquarters, my campaign headquarters on blue hill avenue. and i've been meeting with black ministers over the past few months. and the unemployment is exceedingly high in those neighbors. the recovery is not here which we need to keep rates low to give them a chance to catch up as well. >> should we let interest rates drift up? >> we have still an economic crisis for many this this country. 44 million americans live in poverty. that's $22,000 for a family of four. 16 million children live in those families. so no we can't raise interest rates at this noint time.

27% of for instance african-americans live in poverty today. nd scragse is going -- sequestration is going to cut economic growth. we need low interest rates to serve as an ack elk dote to sequestration or we are going to see cat trough i can conditions unfold in our country. >> chairman bernanke's term is up in 2014. has he herbed another term? >> in my opinion, yes. >> he has been chairman during one of our most calamitous periods not of his making necessarily but he does deserve -- he's also an expert on recessions and depressions

which i think is -- >> i said yes or no. >> i guess yes. >> i want to get in one fortune policy question here. >> the president says iran cannot be allowed to obtain nuclear. north korea has them already. is there any trip wire under which you would support american military action against either one? >> well, i think that if north korea attacks south korea that we have a military obligation to protect south korea and i think the president has made that very clear. with regard to the iranian nuclear program i'm confident to know jon kerri who is going to be a great secretary of state is now ordinary care straiting the effort to put together the coalition that puts together the tightest sanctions possible every on the

iranian economy. we have to avoid iran having a nuclear weapon at all cost. >> i would toped agree we had on the iran situation. i was in south korea recently, visited the d.m.s. there is need for caution there. it is an unstable government there now and they are very unpredictable but we have to have a good coalition with the russians and japanese and chinese to make sure that part of the world is stabilized. >> that's going to do it. the half hour flew by. thank you both. thank you ed markey and steve teeve for your participation. remember there is just five weeks to go until the primary