Marcos German Domingues stands with rainbow flags outside the Supreme Court with hundreds of other marriage equality supporters and protesters.
Clement: “Look at Joint Appendix page 437. You will see the most anomalous motion to dismiss in the history of litigation: A motion to dismiss, filed by the United States, asking the district court not to dismiss the case.” Kennedy: “That — that would give you intellectual whiplash. I’m going to have to think about that.”
10. Kennedy was also troubled by the president’s decision not to defend DOMA in the courts. He said: “But let me ask you, suppose that constitutional scholars have grave doubts about the practice of the president signing a bill but saying that he thinks it’s, unconstitutional — what do you call it, signing statements or something like that. 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 the law is unconstitutional he shouldn’t sign it, according to some view. And that’s a lot like what you’re arguing here. It’s very troubling.”
11. Verrilli attempted to pull heart strings in giving an example of DOMA’s discrimination: “That means that the spouse of a soldier killed in the line of duty cannot receive the dignity and solace of an official notification of next of kin.”
12. Roberts questioned why the president is still enforcing DOMA, even though he thinks it is unconstitutional: “I don’t see why he doesn’t have the courage of his convictions and execute not only the statute, but do it consistent with his view of the Constitution, rather than saying, ‘Oh, we’ll wait ‘til the Supreme Court tells us we have no choice.’”
13. Clement, defending DOMA, explained why the federal government would want a uniform definition of marriage: “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.”
14. Clement urged the justices to let the democratic process sort out marriage: “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. ... And the federal congress is not immune. They repealed ‘Don’t Ask, Don’t Tell.’ Allow the democratic process to continue.”