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4. The heart of Kaplan’s argument for opposing DOMA centered on unlawful discrimination and states’ rights: “No one has identified in this case ... any legitimate difference between married gay couples on the one hand and straight married couples on the other that can possibly explain the sweeping, undifferentiated and categorical discrimination of DOMA, Section 3 of DOMA. And no one has identified any legitimate federal interest that is being served by Congress’s decision, for the first time in our nation’s history, to undermine the determinations of the sovereign states with respect to eligibility for marriage. I would respectfully contend that this is because there is none.”
5. Roberts and Kaplan got into a conversation on whether Congress was motivated by animus against gay people when it passed DOMA. Roberts: “So 84 senators ... based their vote on moral disapproval of gay people?” Kaplan: “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.”
6. Solicitor General Donald B. Verrilli Jr. also addressed the notion that DOMA was passed intentionally to discriminate: “The fundamental reality of it is, and I think the House report makes this glaringly clear, is that DOMA was not enacted for any purpose of uniformity, administration, caution, pausing, any of that. It was enacted to exclude same-sex 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.” Roberts: “So that was the view of the 84 senators who voted in favor of it and the president who signed it? They were motivated by animus?” Verrilli: “Whatever the explanation, whether it’s animus, whether it’s that more subtle, more unthinking, more reflective kind of discrimination, Section 3 is discrimination. And I think it’s time for the court to recognize that this discrimination, excluding lawfully married gay and lesbian couples from federal benefits, cannot be reconciled with our fundamental commitment to equal treatment under law.”
7. Kennedy posited a key question under DOMA: “The question is whether or not the federal government, under our federalism scheme, has the authority to regulate marriage.” Attorney Paul Clement, defending DOMA on behalf of House Republicans: “And it doesn’t have the authority to regulate marriages, as such, but that’s not what DOMA does. DOMA provides certain — DOMA defines a term as it appears in federal statutes.”
8. Clement spoke to Congress’ decision to define marriage in DOMA: “They picked the traditional definition that they knew reflected the underlying judgments of every federal statute on the books at that point. They knew it was the definition that had been tried in every jurisdiction in the United States and hadn’t been tried anywhere until 2004.”
9. Kennedy and Clement had a spirited exchange on the federal government’s decision not to defend DOMA while simultaneously not wanting the case dismissed.