Official - Subject to Final Review 1 IN THE SUPREME COURT OF THE UNITED STATES 2 - - - - - - - - - - - - - - - - - x 3 UNITED STATES, 4 5 : Petitioner : v. No. 12-307 : 6 EDITH SCHLAIN WINDSOR, IN HER : 7 CAPACITY AS EXECUTOR OF THE ESTATE: 8 OF THEA CLARA SPYER, ET AL. 9 - - - - - - - - - - - - - - - - - x : 10 Washington, D.C. 11 Wednesday, March 27, 2013 12 The above-entitled matter came on for oral 13 14 argument before the Supreme Court of the United States 15 at 10:18 a.m. 16 APPEARANCES: 17 VICKI C. JACKSON, ESQ., Cambridge, Massachusetts; for 18 Court-appointed amicus curiae. 19 SRI SRINIVASAN, ESQ., Deputy Solicitor General, 20 Department of Justice, Washington, D.C.; for 21 Petitioner, supporting affirmance. 22 PAUL D. CLEMENT, ESQ., Washington, D.C.; for Respondent 23 Bipartisan Legal Advisory Group of the United States 24 House of Representatives. 25 DONALD B. VERRILLI, JR., ESQ., Solicitor General, 1 Alderson Reporting Company Official - Subject to Final Review 1 Department of Justice, Washington, D.C.; for 2 Petitioner, supporting affirmance. 3 4 ROBERTA A. KAPLAN, ESQ., New York, New York; for Respondent Windsor. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2 Alderson Reporting Company Official - Subject to Final Review 1 C O N T E N T S 2 ORAL ARGUMENT OF 3 VICKI C. JACKSON, ESQ. 4 PAGE For Court-appointed amicus curiae 5 ORAL ARGUMENT OF 6 5 SRI SRINIVASAN, ESQ. 7 For Petitioner, supporting affirmance 8 ORAL ARGUMENT OF 9 18 PAUL D. CLEMENT, ESQ. 10 For Respondent Bipartisan Legal Advisory 11 Group of the United States House of 12 Representatives 35 13 REBUTTAL ARGUMENT OF 14 VICKI C. JACKSON, ESQ. 15 For Court-appointed amicus curiae 16 17 18 19 20 21 22 23 24 25 3 Alderson Reporting Company 50 Official - Subject to Final Review 1 C O N T E N T S 2 ORAL ARGUMENT OF 3 PAUL D. CLEMENT, ESQ. PAGE 4 For Respondent Bipartisan Legal Advisory 5 Group of the United States House of 6 Representatives 55 7 ORAL ARGUMENT OF 8 DONALD B. VERRILLI, JR., ESQ. 9 10 11 For Petitioner, supporting affirmance 80 ROBERTA A. KAPLAN, ESQ. For Respondent Windsor 12 REBUTTAL ARGUMENT OF 13 94 PAUL D. CLEMENT, ESQ. 14 For Respondent Bipartisan Legal Advisory 15 Group of the United States House of 16 Representatives 110 17 18 19 20 21 22 23 24 25 4 Alderson Reporting Company Official - Subject to Final Review 1 P R O C E E D I N G S 2 (10:18 a.m.) 3 CHIEF JUSTICE ROBERTS: We will hear 4 argument this morning in Case 12-307, United 5 States v. Windsor, and we will begin with the 6 jurisdictional discussion. 7 Ms. Jackson? 8 ORAL ARGUMENT OF VICKI C. JACKSON 9 ON BEHALF OF THE COURT-APPOINTED AMICUS CURIAE 10 11 MS. JACKSON: Mr. Chief Justice, and may it please the Court: 12 There is no justiciable case before this 13 Court. Petitioner, the United States, does not ask this 14 Court to redress the injuries it asserts. 15 Representatives' Bipartisan Legal Advisory Group, the 16 BLAG, which does seek redress in the form of reversal, 17 asserts no judicially cognizable injury. 18 The House of While it is natural to want to reach the 19 merits of such a significant issue, as in Raines v. 20 Byrd, this natural urge must be put aside because, 21 however important the constitutional question, Article 22 III prevents its decision here and requires this Court 23 to await another case, another day, to decide the 24 question. 25 In the district court, Ms. Windsor alleged 5 Alderson Reporting Company Official - Subject to Final Review 1 classical Article III injury for which she sought 2 redress. 3 could likewise sue in a first instance court and, if 4 their challenge succeeds, obtain relief. 5 exercise jurisdiction on this appeal when the United 6 States asked for the judgment below, fully agrees with 7 it, and -- Other persons injured by DOMA's operation 8 9 JUSTICE SOTOMAYOR: aggrieved if she is not? But to Who else is going to be Meaning another person who 10 is -- whose benefits are withheld, tax refund is 11 withheld, is going to be in an identical situation to 12 her? Who else could come in? 13 MS. JACKSON: Your Honor, it is possible 14 that in district courts where other taxpayers sue the 15 United States on similar relief, that the district 16 courts will rule differently. 17 court that I'm aware of, in a case called 18 Louie v. Holder, ruled against -- upheld DOMA even 19 though the Government had switched its position at that 20 time. At least one district 21 In addition, the issue of DOMA -- 22 JUSTICE SCALIA: Excuse me. If there is no 23 jurisdiction here, why was there jurisdiction at the 24 trial level? 25 MS. JACKSON: Your Honor -- 6 Alderson Reporting Company Official - Subject to Final Review 1 JUSTICE SCALIA: I mean, the Government 2 comes in and says "I agree" -- or if there was 3 jurisdiction, why did the Court ever have to get to the 4 merits? 5 If you have a, let's say, a lawsuit on an -- 6 on an indebtedness and the alleged debtor comes in and 7 says, yeah, I owe them money, but I'm just not gonna pay 8 it, which is the equivalent of the Government saying, 9 yeah, it's unconstitutional but I'm going to enforce it 10 11 anyway. What would happen in that -- in that 12 indebtedness suit is that the court would enter judgment 13 and say, if you agree that you owe it, by God, you 14 should pay it. 15 there without any consideration of the merits, right? 16 Why didn't that happen here? 17 And there would be a judgment right MS. JACKSON: Your Honor, the -- the two 18 questions that you asked me, why did the district court 19 have jurisdiction, the first answer is that the party 20 invoking the district court's jurisdiction was Ms. 21 Windsor, who did have an injury. 22 As to why the district court didn't enter 23 judgment when the United States switched its position, 24 I -- I imagine that the Court was -- would have wanted 25 to have development of that issue, which was achieved 7 Alderson Reporting Company Official - Subject to Final Review 1 through the intervention of the BLAG in the trial court, 2 so that the judgment of unconstitutionality and of 3 refund would have had a robust hearing -- 4 JUSTICE SCALIA: Really, that's very 5 peculiar. 6 on what the law is? 7 district judge is -- is going to have a hearing? 8 9 When -- when both parties to the case agree What, the -- just for fun, the MS. JACKSON: Well, Your Honor, the jurisdiction of the Court, it seems to me, is not 10 affected by the length of the proceedings it undertook. 11 In Kentucky -- 12 JUSTICE SCALIA: I'm not talking about 13 jurisdiction now. 14 court, without getting to the merits, should not have 15 entered judgment against the Government. 16 I'm talking about why the district MS. JACKSON: I am not sure I have a 17 wonderful answer to that question, Justice Scalia, but I 18 do think the case bears some similarities to Kentucky 19 against Indiana, which was discussed by the parties, 20 where Kentucky sued Indiana in this Court's original 21 jurisdiction on a contract. 22 contract. 23 but it wasn't performing. 24 a State court lawsuit. 25 jurisdiction to give Kentucky relief. The two States had a Indiana agreed it was obligated to perform, There -- it was worried about This Court exercised original 8 Alderson Reporting Company And I think Official - Subject to Final Review 1 that's analogous to what the district court did there. 2 The issue before us today, I think, is an 3 issue of appellate jurisdiction. 4 seeking to invoke the appellate jurisdiction of Article 5 III courts, notwithstanding that it doesn't seek relief; 6 it seeks affirmance. 7 JUSTICE ALITO: And the U.S. is Well, the Solicitor 8 General's standing argument is very abstract. But here 9 is one possible way of understanding it, perhaps the 10 Solicitor General will disavow it, but it would go like 11 this: 12 is going to continue to enforce DOMA, engage in conduct 13 that he believes is unconstitutional, until this Court 14 tells him to stop. 15 The President's position in this case is that he The judgment of the Second Circuit told the 16 Executive Branch to comply with the Equal Protection 17 Clause immediately. 18 temporal aspect of that, so the Executive is aggrieved 19 in the sense that the Executive is ordered to do 20 something prior to the point when the Executive believes 21 it should do that thing. 22 The President disagrees with the Now, wouldn't that be sufficient to make -- 23 to create injury in the Executive and render the 24 Executive an aggrieved party? 25 MS. JACKSON: I think not, Your Honor. 9 Alderson Reporting Company I Official - Subject to Final Review 1 think not, because I don't see how that would be any 2 different from any party saying, well, we really don't 3 want to pay this judgment until we're sure all of the 4 courts agree. 5 doesn't have a lot of case law where a party seeks 6 review to get affirmance. 7 And I think this Court's -- this Court But in the Princeton University against 8 Schmidt case, there was a State court conviction, Ohio 9 State Court overturns it, Princeton University seeks 10 review, because its regulations were at issue. 11 Jersey joins in seeking review, but does not ask for 12 relief; does not take a position on what relief would 13 be appropriate. 14 JUSTICE BREYER: New Why -- why wouldn't -- 15 imagine -- there in Article II, it says that the 16 President shall take care that the laws be faithfully 17 executed. 18 personally, and for reasons in -- in my department, 19 others think that this law is unconstitutional, but I 20 have this obligation. 21 obligation, I will not, I will continue to execute this 22 law. 23 with it. 24 determination not to. 25 So the President has worked out -- I, And because I have this I will continue to execute it though I disagree And I execute it until I have an authoritative Now, how is that different from a trustee 10 Alderson Reporting Company Official - Subject to Final Review 1 who believes that he has an obligation to a trust to do 2 something under a certain provision that he thinks 3 doesn't require that, but, you know, there's a debate 4 about it, but he says, I have the obligation here. 5 going to follow this through. 6 I'm There'd be standing in the second case for 7 any fiduciary, despite his personal beliefs, to 8 continue. We'd understand that and say there was 9 standing. Why don't we here? 10 MS. JACKSON: Well, the trustee, I think, 11 would be able to go to a court of first instance to get 12 an adjudication of the claim. 13 you that the trustee could not do, after getting the 14 first -- the judgment in the court of first instance 15 stating what the remedy -- what the liability is, then 16 seek review of that judgment, but ask only for it to be 17 affirmed. 18 JUSTICE BREYER: What I'm submitting to And that's the part I don't 19 understand. For -- if, in fact, as you agree, the 20 trustee or other fiduciary in my example would indeed 21 have standing to act according to the law, even though 22 he thinks that that law is unconstitutional because of 23 his obligation such as under Section 2. 24 has the -- he has -- there is standing when he goes into 25 court in the first place, which surely he could 11 Alderson Reporting Company You agree he Official - Subject to Final Review 1 interpret Article II as saying and you follow it through 2 as long as you can do it, which includes appeals, until 3 the matter is determined finally and authoritatively by 4 a court. 5 you from doing the second? 6 If you could do the first, what suddenly stops MS. JACKSON: In the first instance, the 7 obligations are uncertain the trustee is presumably 8 subject to potentially adverse competing claims on his 9 or her action. 10 11 CHIEF JUSTICE ROBERTS: Well, I would have thought -- 12 MS. JACKSON: Those are -- 13 CHIEF JUSTICE ROBERTS: I would have thought 14 your answer would be that the Executive's obligation to 15 execute the law includes the obligation to execute the 16 law consistent with the Constitution. 17 made a determination that executing the law by enforcing 18 the terms is unconstitutional, I don't see why he 19 doesn't have the courage of his convictions and execute 20 not only the statute, but do it consistent with his view 21 of the Constitution, rather than saying, oh, we'll wait 22 till the Supreme Court tells us we have no choice. 23 MS. JACKSON: And if he has Mr. Chief Justice, I think 24 that's a hard question under Article II. 25 the Article III questions that this Court is facing turn 12 Alderson Reporting Company But I think Official - Subject to Final Review 1 on what the parties in the case have alleged, what 2 relief they're seeking, and what the posture is. 3 JUSTICE KENNEDY: In Federal court's 4 jurisprudence, are you saying there's a lack of 5 adversity here? 6 MS. JACKSON: 7 JUSTICE KENNEDY: 8 I am saying primarily -- Can you give us a pigeonhole? 9 MS. JACKSON: I -- it's a little difficult, 10 because the circumstance is unusual, Justice Kennedy, 11 but I think the most apt of the doctrines, although they 12 are overlapping and reinforce each other, the most apt 13 is standing. 14 This Court has made clear that a party on 15 appeal has to meet the same Article III standing 16 requirements of injury caused by the action complained 17 of and redressable by the relief requested by the 18 parties. 19 20 21 JUSTICE KENNEDY: But it seems to me there -- there's injury here. MS. JACKSON: Well, Your Honor, I do not 22 agree that the injuries alleged by the United States 23 should be cognizable by the Article III courts, because 24 those injuries are exactly what it asked the courts 25 below to -- to produce. But even if we treat the 13 Alderson Reporting Company Official - Subject to Final Review 1 injuries as sufficiently alleged, Article III requires 2 that the party complaining of injury ask the court to 3 remedy that injury. 4 requirement, I think, under Article III for several 5 reasons. 6 And that's a very important The idea of the case or controversy 7 limitation, as I understand it, is part of a broader 8 separation of powers picture, to make sure the Federal 9 courts perform their proper role. Their proper role is 10 the redress of injury, and it is the need to redress 11 injury in ordinary litigation that justifies judicial 12 review of constitutional issues. 13 JUSTICE KAGAN: But -- But, Ms. Jackson, I mean, to 14 go back to Justice Kennedy's point, we have injury here 15 in the most classic, most concrete sense. 16 $300,000 that's going to come out of the Government's 17 treasury if this decision is upheld, and it won't if it 18 isn't. 19 There's Now, the Government is willing to pay that 20 $300,000, would be happy to pay that $300,000, but 21 whether the Government is happy or sad to pay that 22 $300,000, the Government is still paying the $300,000, 23 which in the usual set of circumstances is the classic 24 Article III injury. 25 Why isn't it here? 14 Alderson Reporting Company Official - Subject to Final Review 1 MS. JACKSON: Justice Kagan, there is a 2 three-prong test. Even if you treat that as injury, it 3 does not meet the requirements for standing on appeal, 4 because the Government has not asked this Court to 5 remedy that injury. 6 Court to overturn the rulings below so it doesn't have 7 to pay the $365,000. 8 And the case or controversy requirement that we're 9 talking about are nested in an adversarial system where 10 we rely on the parties to state their injuries and make 11 their claims for relief. The Government has not asked this It has asked this Court to affirm. 12 If the Government or any party is not bound 13 with respect to standing by its articulated request for 14 a remedy, what that does is it enables the Court to fill 15 in, to reshape. 16 be limiting the occasions for judicial review of 17 constitutionality, that is troubling. 18 And for a doctrine that is supposed to JUSTICE KAGAN: But don't we often separate 19 those two things, ask whether there's injury for Article 20 III purposes and causation and redressability, as you 21 say, but then say, well, sometimes when all of those are 22 met, there's not going to be adequate presentation of 23 the arguments, and so we will appoint an amicus or we'll 24 restructure things? 25 confesses error, often. And we do that when the Government I mean, we do that several 15 Alderson Reporting Company Official - Subject to Final Review 1 times a year in this courtroom. 2 MS. JACKSON: Yes, Your Honor. But 3 concession of error cases, with respect, are quite 4 different, because in concession of error cases 5 typically both parties at the appellate level end up 6 being adverse to the judgment below and they are asking 7 relief from this Court from the judgment below. 8 9 But here we have a situation where, putting BLAG to one side for the moment, between the United 10 States and Ms. Windsor there is no adversity, they're in 11 agreement, and neither of them is asking this Court to 12 reverse or modify the judgment below. 13 the confession of error cases are quite different from 14 the perspective of Article III. JUSTICE BREYER: 15 And so I think No, they're -- they're not 16 in agreement about whether to pay the money or not. 17 They are in agreement about what arguments are correct 18 legal arguments, and I can't think of a case other than 19 the sham cases which -- which this isn't, where -- where 20 you would find no standing or other obstacle. 21 think of one case, which you haven't mentioned, namely, 22 Chadha, which seems about identical. 23 MS. JACKSON: And I can Your Honor, I don't think that 24 Chadha is identical, with respect. 25 reasons. In -- for two main In Chadha, the Court was I think quite careful 16 Alderson Reporting Company Official - Subject to Final Review 1 to avoid deciding whether the United States had Article 2 III standing. 3 repealed, 1252, which gave this Court mandatory 4 jurisdiction in cases in which a Federal statute was 5 held unconstitutional and the U.S. was a party. 6 framed its analysis of whether the statute permitted the 7 appeal. 8 for rebuttal? And it What I think was -- oh, may I reserve my time 9 10 It intensively analyzed a statute, since CHIEF JUSTICE ROBERTS: You can finish your sentence. 11 MS. JACKSON: Thank you. 12 What was -- what was going on there was the 13 Court said: 14 broadly, perhaps implicit, not stated, perhaps more 15 broadly than Article III. 16 Well, the statute wanted to reach very Congress said whenever you have this 17 configuration, you go up to the Supreme Court. 18 Supreme Court in Chadha says, of course, in addition to 19 the statute, there must be Article III case or 20 controversy, the presence of the congressional 21 intervenors here provides it. 22 23 And that -- CHIEF JUSTICE ROBERTS: Thank you, counsel. That was more than a sentence. 24 25 Then the MS. JACKSON: Your Honor. Oh, I'm sorry. Thank you. 17 Alderson Reporting Company I'm sorry, Official - Subject to Final Review 1 CHIEF JUSTICE ROBERTS: 2 ORAL ARGUMENT OF SRI SRINIVASAN, 3 ON BEHALF OF THE PETITIONER, SUPPORTING AFFIRMANCE 4 5 MR. SRINIVASAN: Mr. Srinivasan? Thank you, Mr. Chief Justice, and may it please the Court: 6 This Court has jurisdiction in this case 7 based on the petition filed by the United States for the 8 same reasons it had jurisdiction in parallel 9 circumstances in Chadha and Lovett. There are two 10 issues that have been -- that have been brought up this 11 morning and I'd like to address each in turn. 12 One is whether there's a concrete case or 13 controversy -- case or controversy in the sense of 14 adversity in this Court; and the second is the question 15 of whether there's Article III standing for the 16 Government to bring this case before the Court. 17 CHIEF JUSTICE ROBERTS: On the first one, is 18 there any case where all the parties agreed with the 19 decision below and we upheld appellate jurisdiction? 20 Any case? 21 MR. SRINIVASAN: Where the parties agreed -- 22 CHIEF JUSTICE ROBERTS: All the parties 23 agreed with the decision below and we nonetheless upheld 24 appellate jurisdiction. 25 MR. SRINIVASAN: Well, you didn't speak to 18 Alderson Reporting Company Official - Subject to Final Review 1 it in Lovett, Your Honor, but that was the circumstance 2 in Lovett. 3 CHIEF JUSTICE ROBERTS: No, it wasn't 4 raised -- it wasn't raised or addressed, and that had 5 the distinct situation of an appeal, direct appeal from 6 an Article I tribunal. 7 MR. SRINIVASAN: Well, I don't -- I don't 8 know that that matters, because you had to satisfy 9 Article III prerequisites to have the case in this 10 Court. Now, Your Honor is, of course, correct that 11 the -- the Court didn't affirmatively engage on the 12 issue of jurisdiction, but that is a scenario -- 13 CHIEF JUSTICE ROBERTS: Okay. So putting 14 Lovett aside, since none of this was discussed, is there 15 any, any case? 16 MR. SRINIVASAN: No, I don't know of one. 17 But these -- but, Mr. Chief Justice, with all due 18 respect -- 19 CHIEF JUSTICE ROBERTS: So this is totally 20 unprecedented. 21 never done before to reach the issue in this case. 22 You're asking us to do something we have MR. SRINIVASAN: Let me say two things about 23 that if I might, Your Honor. First is that it's -- it's 24 unusual, but that's not at all surprising, because 25 the -- 19 Alderson Reporting Company Official - Subject to Final Review 1 2 CHIEF JUSTICE ROBERTS: it's not unusual. 3 No, it's not just -- It's totally unprecedented. MR. SRINIVASAN: Well, it's totally 4 unprecedented in one respect, Your Honor. 5 at Chadha -- okay, the second point I'd make. 6 make one point at the outset, though, which is that 7 whether it's totally unusual or largely unusual, I grant 8 you that it doesn't happen. 9 happen is because -- I wouldn't confuse a numerator with 10 a denominator. 11 If you look Let me But the reason it doesn't arise very often. 12 13 This set of circumstances just doesn't Now, it's true that when this set of circumstances -- 14 JUSTICE SCALIA: It has not arisen very 15 often in the past, because in the past, when I was at 16 the Office of Legal Counsel, there was an opinion of the 17 Office of Legal Counsel which says that the Attorney 18 General will defend the laws of the United States, 19 except in two circumstances: 20 basis for the alleged unconstitutionality has to do with 21 presidential powers. 22 involved, he's the lawyer for the President. 23 say, we think the statute's unconstitutional, I won't 24 defend it. 25 Number one, where the When the presidential powers are So he can The second situation is where no possible 20 Alderson Reporting Company Official - Subject to Final Review 1 rational argument could be made in defense of it. Now, 2 neither of those situations exists here. 3 wondering if we're living in this new world where the 4 Attorney General can simply decide, yeah, it's 5 unconstitutional, but it's not so unconstitutional that 6 I'm not willing to enforce it, if we're in this new 7 world, I -- I don't want these cases like this to come 8 before this Court all the time. And I'm 9 And I think they will come all the time if 10 that's -- if that's -- if that's the new regime in the 11 Justice Department that we're dealing with. 12 MR. SRINIVASAN: Justice Scalia, one 13 recognized situation in which an act of Congress won't 14 be defended in court is when the President makes a 15 determination that the act is unconstitutional. 16 what happened here. 17 legal determination that this Act of Congress is 18 unconstitutional. 19 20 21 That's The President made an accountable JUSTICE KENNEDY: But then why does he enforce the statute? MR. SRINIVASAN: Well, that's an option 22 that's available to him, Justice Kennedy. 23 circumstances, it makes sense not to enforce. 24 don't think the take-care responsibility is an all or 25 nothing proposition such that when the President reaches 21 Alderson Reporting Company In certain But I Official - Subject to Final Review 1 a determination that a statute is unconstitutional, it 2 necessarily follows that he wouldn't enforce it. 3 not what happened in Lovett. 4 JUSTICE KENNEDY: That's That's not -- But let me ask you, 5 suppose that constitutional scholars have grave doubts 6 about the practice of the President signing a bill but 7 saying that he thinks it's, unconstitutional -- what do 8 you call it, signing statements or something like that. 9 It seems to me that if we adopt your position that that 10 would ratify and confirm and encourage that questionable 11 practice, because if the President thinks the law is 12 unconstitutional he shouldn't sign it, according to some 13 view. 14 It's very troubling. 15 And that's a lot like what you're arguing here. MR. SRINIVASAN: I -- in the -- in the 16 signing statement situation, Your Honor, one example in 17 the past is Turner Broadcasting. 18 Broadcasting, that was a circumstance in which it was -- 19 it was a veto, but in the course of the veto the 20 President made the determination that a particular 21 aspect of that statute was unconstitutional. 22 In Turner And what happened as a result of that is 23 that the Department of Justice didn't defend that aspect 24 of the statute in litigation. 25 President reached a contrary conclusion. Now, a subsequent 22 Alderson Reporting Company But -- but my Official - Subject to Final Review 1 point is simply that when the President makes a 2 determination that a statute is unconstitutional, it can 3 follow that the Department of Justice won't defend it in 4 litigation. 5 CHIEF JUSTICE ROBERTS: Sometimes you do and 6 sometimes you don't. 7 think your obligation to take care that the laws be 8 faithfully executed means you'll follow your view about 9 whether it's constitutional or not or you won't follow 10 What is the test for when you your view? 11 MR. SRINIVASAN: Mr. Chief Justice, I'd 12 hesitate to give you a black-and-white algorithm. 13 are -- there are several considerations that would 14 factor into it. 15 There One of the considerations -- JUSTICE SCALIA: It's the President's. Excuse me. It's not your 16 view. It's only when the 17 President thinks it's unconstitutional that you can 18 decline to defend it? 19 thinks it's unconstitutional? Or what if the Attorney General 20 MR. SRINIVASAN: No, no. 21 JUSTICE SCALIA: Or the Solicitor General, 22 23 Of course -- is that enough? MR. SRINIVASAN: 28 U.S.C. 530(d) 24 presupposes -- Congress presupposes that there are going 25 to be occasions in which a statute is -- is not defended 23 Alderson Reporting Company Official - Subject to Final Review 1 because of a conclusion by the Attorney General that 2 it's unconstitutional. 3 4 5 JUSTICE SCALIA: Oh, it can be either the Attorney General or the Solicitor General? MR. SRINIVASAN: It could be, but this is a 6 situation in which the President made the determination. 7 And when the President makes that determination, there 8 are a few considerations that I think would factor into 9 the mix in determining whether enforcement will follow. 10 One of them would be the consequences of enforcement for 11 the individuals who are affected. 12 And so, for example, I would assume that if 13 it's a criminal statute that we're talking about, an 14 enforcement would require criminal enforcement against 15 somebody and -- which would beget criminal sanctions. 16 That may be -- 17 JUSTICE SCALIA: So when Congress enacts a 18 statute, it cannot be defended, it has no assurance that 19 that statute will be defended in court, if the Solicitor 20 General in his view thinks it's unconstitutional? 21 22 MR. SRINIVASAN: There have -- Justice Scalia -- 23 JUSTICE SCALIA: Is that right? 24 MR. SRINIVASAN: -- there have been 25 occasions in the past. 24 Alderson Reporting Company Official - Subject to Final Review 1 JUSTICE SCALIA: Yes or no? 2 MR. SRINIVASAN: Yes. Yes, it's true. And 3 28 U.S.C. 530(d) exactly presupposes that. 4 exact occasion in which that process is -- is 5 occasioned. 6 it can happen also when -- in the rare instance in which 7 the President himself makes that determination. 8 don't think that the take-care clause responsibility has 9 this all or nothing capacity to it. 10 Congress knew that this would happen. Now, And I It can be that the President decides -- 11 JUSTICE GINSBURG: 12 JUSTICE SCALIA: 13 That's the Mr. Srinivasan -- It's not what the OLC opinion said, by the way. 14 MR. SRINIVASAN: It can be that the 15 President decides to enforce it. 16 in Lovett and that's the course of events that was 17 sought -- that happened in Chadha. 18 JUSTICE GINSBURG: That's what happened And there's -- But when the 19 Government -- when the -- when the case is adjudicated 20 in the first instance -- we're talking here about 21 appellate authority. 22 MR. SRINIVASAN: 23 JUSTICE GINSBURG: Correct. The Government sometimes 24 loses cases in the first instance and then it doesn't 25 appeal. If it agrees with the result that the court 25 Alderson Reporting Company Official - Subject to Final Review 1 reached, it doesn't appeal and then the judgment in the 2 first instance where there was adversity is -- is the 3 last word. 4 agree with the -- the adjudication in the court of first 5 instance and so we'll leave it there, and when does it 6 say, yeah, we agree, but we want higher authority to 7 participate? 8 9 So, when does the Government decide, yes, we MR. SRINIVASAN: Well, there are -- there are a number of considerations that could factor into 10 it, Justice Ginsburg. 11 scenarios is possible. 12 appealed in this case is because the President made the 13 determination that this statute would continue to be 14 enforced, and that was out of respect for the Congress 15 that enacted the law and the President who signed it, 16 and out of respect for the role of the judiciary in 17 saying what the law is. 18 You're right that either of those The reason that the Government The point of taking an appeal here is that 19 the Government suffered an injury because a judgment was 20 entered against the Government in the court of appeals. 21 That's a classic case for injury. 22 JUSTICE SOTOMAYOR: Counsel, could you not 23 run out of time on the BLAG standing? 24 didn't permit Ms. Jackson to -- to address it. 25 run out of time on that. 26 Alderson Reporting Company I know we -- we So don't Official - Subject to Final Review 1 MR. SRINIVASAN: I -- I won't, Your Honor. 2 I'll be happy to turn -- turn to BLAG standing. 3 like to make a couple of points on the question of our 4 own standing to bring the petition before the Court. 5 I would And I think Justice Breyer was right. The 6 key precedent here is Chadha. Chadha establishes a 7 couple of things. 8 is aggrievement in the circumstances of this case. 9 I don't see what the difference is between aggrievement First, Chadha establishes that there And 10 for purposes of statutory -- the statutory analysis at 11 issue in Chadha, and injury for purposes of Article III. 12 JUSTICE ALITO: Well, how are you aggrieved? 13 "Aggrieved" means that you are deprived of your legal 14 rights. 15 of your legal rights because your rights -- your 16 obligations under the Constitution supercede DOMA, and 17 you haven't been deprived of anything that you're 18 entitled to under the Constitution. 19 aggrieved? 20 And you don't think that you've been deprived MR. SRINIVASAN: So how are you I guess we'd -- I'd 21 subscribe to the aggrievement analysis that the Court 22 made in Chadha at pages 929 to 931 of its opinion. 23 what the Court said is this: 24 United States is a party to a case in which an act of 25 Congress that it administers is held unconstitutional, And "When an agency of the 27 Alderson Reporting Company Official - Subject to Final Review 1 it is an aggrieved party. 2 aggrieved party is not altered by the fact that the 3 Executive may agree with the holding that the statute in 4 question is unconstitutional." 5 all fours with the circumstances of this case. 6 The agency's status as an JUSTICE ALITO: That description is on Could I just -- before you 7 go on to the House group, could I just clear up 8 something? 9 representing all three branches of the Government, is 10 In your brief, you argue that you are that right? 11 MR. SRINIVASAN: 12 JUSTICE ALITO: Correct. You're -- you're 13 representing the Judiciary as you stand before us here 14 today -- 15 MR. SRINIVASAN: 16 JUSTICE ALITO: 17 18 Well -- -- trying to persuade the Court, you're representing the Court? MR. SRINIVASAN: We represent the sovereign 19 interests of the United States. Of course, in a case 20 like this, the -- the -- we're submitting the dispute to 21 the Judiciary for resolution, so in that sense, we -- 22 I'm not going to stand here and tell you that I can 23 dictate the -- that the Judiciary comes out in one 24 direction or the other. 25 able to do that, but I don't think I can, in all I certainly would like to be 28 Alderson Reporting Company Official - Subject to Final Review 1 fairness, do that. 2 But I -- JUSTICE ALITO: It seems very strange. So 3 in -- in a criminal case where it's the United States v. 4 Smith, appearing before an Article III judge, the United 5 States, the prosecutor is representing the court as 6 well? 7 MR. SRINIVASAN: Well, I think -- I guess 8 what I would say is this: The United -- the United 9 States -- the Executive Branch represents the sovereign 10 interests of the United States before the Court. 11 not -- I think the point of this is that it's not that 12 the Executive Branch is representing the Executive 13 Branch alone. 14 It's The Executive Branch is representing the 15 sovereign interests of the United States, and those 16 interests would include the interests of the Congress 17 that enacted the law, the interests of the President 18 that signed it, and the interests of the Judiciary in 19 pronouncing on what the law is. 20 action that the President chose to undertake here is in 21 keeping with all of those considerations. 22 JUSTICE KAGAN: And the course of Mr. Srinivasan, Chadha says 23 what you said it said about what it means to be 24 aggrieved -- 25 MR. SRINIVASAN: Yes. 29 Alderson Reporting Company Official - Subject to Final Review 1 JUSTICE KAGAN: 2 the Article III question. 3 -- but Chadha also left open if it's the same thing? 4 Why did Chadha leave it open MR. SRINIVASAN: I don't -- I don't know why 5 Chadha didn't engage on it in particular. I think part 6 of it, Justice Kagan, is that the Court didn't have the 7 methodology at that point in time that it does now. 8 don't know that it neatly divided between those 9 questions in the same way. I So yes, it left the Article 10 III question open, but I think the question of Article 11 III injury necessarily follows from aggrievement and I 12 haven't -- I haven't heard a persuasive argument to the 13 contrary. 14 If we were aggrieved in the circumstances of 15 Chadha, it seems to me it necessarily follows that we're 16 injured. 17 Congress has been declared unconstitutional, which 18 Chadha itself says constitutes aggrievement and 19 therefore constitutes injury. 20 required to pay a judgment -- 21 We're injured in a couple of ways. JUSTICE SCALIA: An act of In this case also, we're Didn't Chadha -- didn't 22 Chadha suggest that Congress could have standing in -- 23 in Chadha? 24 MR. SRINIVASAN: I'm sorry? 25 JUSTICE SCALIA: In Chadha, there was an 30 Alderson Reporting Company Official - Subject to Final Review 1 argument that Congress had standing, because what was at 2 issue in the case was precisely a prerogative of 3 Congress to exercise the one-house or two-house veto. 4 MR. SRINIVASAN: There wasn't a -- there -- 5 that was an issue in Chadha. 6 issue was joined, actually, Justice Scalia. 7 did say at page 939 of its opinion that Congress is a 8 proper party to defend the constitutionality of the Act 9 and a proper petitioner, and I think that's the best 10 I don't know that that The Court language for the other side on this issue. 11 CHIEF JUSTICE ROBERTS: So you say we 12 shouldn't be concerned about that part of Chadha because 13 the issue wasn't joined there? 14 15 MR. SRINIVASAN: Well, I don't -- I don't read the -- 16 CHIEF JUSTICE ROBERTS: But we should take 17 Lovett as a binding precedent even though the issue 18 wasn't addressed at all? 19 MR. SRINIVASAN: I didn't -- to be -- to be 20 fair or, as was suggested this morning, to be cricket, 21 I -- I didn't mean to suggest that Lovett is binding 22 precedent, Mr. Chief Justice. 23 is a case in which this same scenario as happens here 24 occurred. 25 What I'm saying is Lovett That's my -- that's my point about Lovett. JUSTICE SOTOMAYOR: All right. 31 Alderson Reporting Company Let's go to Official - Subject to Final Review 1 the BLAG issue. 2 MR. SRINIVASAN: So -- sure. 3 JUSTICE SOTOMAYOR: And the issue wasn't 4 joined. So what do you think we meant? 5 Justice Scalia doesn't care what you think we meant. 6 MR. SRINIVASAN: 7 JUSTICE SOTOMAYOR: 8 Well -- But what is your reading of what that means, that Congress can -- 9 MR. SRINIVASAN: 10 11 Right. And I know I think that -- JUSTICE SOTOMAYOR: -- intervene in situations in which its interests are injured? 12 MR. SRINIVASAN: Sure. So there are two 13 aspects of Chadha that are relevant on pages 939 and 14 940. 15 with prudential considerations that this Court ought to 16 take into account to make sure that it has a sufficient 17 adverse presentation of the competing arguments before 18 it. The second discussion at page 940, I think, deals 19 And that's accounted for by an amicus type 20 role, and I think that's what the Court had in mind in 21 Chadha, because the two cases that are cited in support 22 of that proposition were both cases in which there was 23 an appointed amicus. 24 aspect of Chadha. 25 So that -- that deals with that The other aspect of Chadha is the sentence 32 Alderson Reporting Company Official - Subject to Final Review 1 that I alluded to earlier. And I guess I'm not -- I'm 2 not going to tell you that that sentence doesn't bear on 3 the issue at all, but I will say this: 4 that is 28 U.S.C. 1254. What's cited in 5 So I think the point that was directly -- 6 directly being made is that the House and Senate were 7 parties for purposes of the statute and they were 8 parties because they had intervened and so they had 9 party status. 10 JUSTICE SOTOMAYOR: So are you accepting the 11 amici's formulation that somehow the representative has 12 to be of both houses and not just one? 13 MR. SRINIVASAN: No. I guess my -- my point 14 is a little bit different. 15 talking about whether they're a party for statutory 16 purposes under 1254. 17 question of Article III standing. 18 My point is that this was I don't read this to address the On the question of Article III standing, I 19 guess what I would say is this: Chadha at most, if it 20 says anything about Article III standing -- and I don't 21 know that it does with respect to the House or Senate -- 22 at most what it would say was in the unique 23 circumstances of that case, where you had a legislative 24 veto that uniquely affected a congressional 25 prerogative -- 33 Alderson Reporting Company Official - Subject to Final Review 1 2 JUSTICE SOTOMAYOR: So you take the position that Congress -- 3 MR. SRINIVASAN: 4 in that situation. 5 -- there might be standing but -- 6 7 JUSTICE SOTOMAYOR: Well, I want to know what you're conceding. 8 9 Even that I don't want to concede, MR. SRINIVASAN: I'm conceding that at most -- 10 JUSTICE SOTOMAYOR: 11 case. 12 of Congress? 13 Let's assume this very Would -- who would ever have standing on behalf standing? Anyone? Or are you saying there's never MR. SRINIVASAN: 14 Well, there are two 15 different cases. This case is different, because this 16 case doesn't involve the kind of unique congressional 17 prerogative that was at issue in Chadha. 18 involved a legislative veto. Chadha 19 Here, if I could just finish this -- 20 CHIEF JUSTICE ROBERTS: 21 22 23 24 25 You can finish your sentence. MR. SRINIVASAN: -- this thought. Thank you, Mr. Chief Justice. Here, I don't think the interest that's being asserted is even in the same plane as the one that 34 Alderson Reporting Company Official - Subject to Final Review 1 was asserted and found deficient in Raines v. Byrd. 2 CHIEF JUSTICE ROBERTS: 3 Mr. Clement? 4 ORAL ARGUMENT OF PAUL D. CLEMENT 5 ON BEHALF OF THE RESPONDENT BIPARTISAN LEGAL 6 ADVISORY GROUP OF THE UNITED STATES 7 HOUSE OF REPRESENTATIVES 8 9 Thank you, counsel. MR. CLEMENT: Thank you, Mr. Chief Justice, and may it please the Court: 10 This Court not only addressed the issue of 11 the House's standing in Chadha; it held that the House 12 is the proper party to defend the constitutionality of 13 an Act of Congress when the executive agency charged 14 with its enforcement agrees with plaintiff that the 15 statute is unconstitutional. 16 JUSTICE SOTOMAYOR: Mr. Clement, Chadha was 17 somewhat different because there was a unique House 18 prerogative in question. 19 different than enforcing the general laws of the United 20 States? 21 legislation. But how is this case any There's no unique House power granted by the 22 MR. CLEMENT: Well, Justice Sotomayor -- 23 JUSTICE SOTOMAYOR: It's a law of the United 24 States and the person who defends it generally is the 25 Solicitor -- Solicitor General. 35 Alderson Reporting Company Official - Subject to Final Review 1 MR. CLEMENT: Sure, generally, unless and 2 until they stop defending it, at which point we 3 submit -- 4 JUSTICE SOTOMAYOR: Well, then, why 5 shouldn't -- why shouldn't taxpayers have a right to 6 come in? And we say they don't. 7 MR. CLEMENT: Because the House is very -- 8 in a very different position in a case like this and in 9 Chadha from just the general taxpayer. Now, in a case 10 like Chadha, for example, you're right, it was the 11 one-house veto, if you will, that was at issue. 12 would be a strange jurisprudence that says that the 13 House has standing to come in and defend an 14 unconstitutional one-house veto, but it doesn't have 15 standing to come in and defend its core Article I 16 prerogative, which is to pass statutes and have those 17 statutes -- 18 JUSTICE KENNEDY: 19 the premise. 20 unconstitutional. 21 22 23 But it Well, that -- that assumes We didn't -- the House didn't know it was I mean -- MR. CLEMENT: Well, with all due respect, Justice Kennedy, I think the House -- JUSTICE KENNEDY: We are talking about ex 24 ante, not ex post, what is standing at the outset? 25 the House says this is constitutional. 36 Alderson Reporting Company And Official - Subject to Final Review 1 MR. CLEMENT: Sure. And there is a 2 presumption that its acts are constitutional. That 3 presumption had real life here because when Congress was 4 considering this statute it asked the Justice Department 5 three times whether DOMA was constitutional, and three 6 times the Justice Department told them that it was in 7 fact constitutional. 8 that they at least have standing to have that 9 determination made by the courts, and this Court has So I think it's a fair assumption 10 held that in the context of State legislatures and the 11 courts have -- 12 JUSTICE KENNEDY: So you don't think that 13 there is anything to the argument that in Chadha the 14 House had its own unique institutional responsibilities 15 and prerogatives at stake, either the one-house veto or 16 the legislative veto? 17 MR. CLEMENT: Well, I would say two things. 18 JUSTICE KENNEDY: 19 MR. CLEMENT: That's irrelevant? I don't think -- I don't think 20 it's irrelevant. I would say two things. 21 don't think there was anything particularized about the 22 fact that it was the House that exercised the one-house 23 veto, because the Court allowed the Senate to 24 participate as well and the Senate's interest in that 25 was really just the constitutionality of the legislation 37 Alderson Reporting Company One is, I Official - Subject to Final Review 1 and perhaps the one-house veto going forward. 2 But what I would say is I just -- I would 3 continue to resist the premise, which is that the 4 House's prerogatives aren't at stake here. 5 single most important prerogative, which is to pass 6 legislation and have that legislation, if it's going to 7 be repealed, only be repealed through a process where 8 the House gets to fully participate. 9 CHIEF JUSTICE ROBERTS: The House's What if you -- what 10 if you disagree with -- the executive is defending one 11 of your laws, if that's the way you insist on viewing 12 it, and you don't like their arguments, you say, they 13 are not making the best argument. 14 in which you have standing to intervene to defend the 15 law in a different way than the executive? 16 MR. CLEMENT: Is that a situation No, I would say we would not, 17 Mr. Chief Justice. I would say in that circumstance the 18 House would have the prerogative to file an amicus brief 19 if it wanted to, but that's because of a sound 20 prudential reason, which is when the Executive is 21 actually discharging its responsibility, its traditional 22 obligation to defend an Act of Congress, if Congress 23 comes in as a party it has the possibility of 24 second-guessing the way that they are actually defending 25 it. 38 Alderson Reporting Company Official - Subject to Final Review 1 But if the Executive is going to vacate the 2 premises or, in a case like this, not just vacate the 3 premises, but stay in court and attack the statute, you 4 don't have that prudential concern. 5 JUSTICE KAGAN: And that's why -- How about a couple of cases 6 sort of in the middle of the Chief Justice's and this 7 one? 8 that a particular application of the statute is 9 unconstitutional and decides to give up on that So let's say that the Attorney General decides 10 application. 11 decides that the application of the statute might be 12 unconstitutional, so decides to interpret the statute 13 narrowly in order to avoid that application. 14 Congress then come in? 15 Or even let's say the Attorney General MR. CLEMENT: Could Well, I think -- if in a 16 particular case, which is obviously not this case, the 17 Executive decides, we are not going to defend the 18 statute as applied I think in that situation the House 19 could come in. 20 probably wouldn't. 21 I think as a matter of practice it And it's not like the House and the Senate 22 are very anxious to exercise this prerogative. In the 23 30 years since the Chadha decision, there's only been 12 24 instances in which the -- in which the House has come in 25 and intervened as a party. And I think it's very 39 Alderson Reporting Company Official - Subject to Final Review 1 important to recognize that whatever -- 2 JUSTICE GINSBURG: Does that include the -- 3 does that include the courts of appeals or just this 4 Court? 5 MR. CLEMENT: That includes all courts, but 6 excluding the DOMA cases. 7 until the DOMA cases, there were a total of 12 cases 8 where the House intervened as a party. 9 So from the point of Chadha And I do think that particularly in the 10 lower court cases, it's very important to understand 11 that party status is critical. 12 doesn't make a huge differences if you are an amicus 13 with argument time versus a party. 14 court that makes all the difference. 15 take a deposition. 16 JUSTICE BREYER: I mean, in this case it But in the district Only a party can This is what -- we have 17 always had the distinction between the public action and 18 the private action. 19 exist under the Federal Constitution, is to vindicate 20 the interest in the law being enforced. 21 government, State or Federal, in fact has the interest, 22 a special interest in executing the law, here given to 23 the President, and they can delegate that interest to 24 Congress, if they did, which arguably they didn't do 25 here. A public action, which does not Now, when the But to say that any legislator has an interest on 40 Alderson Reporting Company Official - Subject to Final Review 1 his own without that delegation to defend the law is to 2 import in that context the public action into the 3 Federal Government. 4 Now, that -- it hasn't been done, I don't 5 think, ever. 6 but I can't think of another instance where that's 7 happened. 8 9 10 I can see arguments for and against it, MR. CLEMENT: things, Justice Breyer. Well, I would -- a couple of I mean, I would point you to Chadha and I realize you can distinguish Chadha. 11 JUSTICE BREYER: Chadha is really different 12 because of course there is an interest in the 13 legislature in defending a procedure of the legislature. 14 Now, that's -- that isn't tough. 15 the only interest I can see here is the interest in the 16 law being enforced. 17 MR. CLEMENT: 18 JUSTICE BREYER: 19 But this is, because Well, if I -- And that's -- I'm afraid of opening that door. 20 MR. CLEMENT: Well, it's understandable. 21 mean, obviously nobody's suggesting, at least in the 22 Legislative Branch, that this is a best practices 23 I situation. 24 25 JUSTICE BREYER: No, no. But think of another instance where that's happened, where in all of 41 Alderson Reporting Company Official - Subject to Final Review 1 the 12 cases or whatever that what this Court has said, 2 without any special delegation of the power of the State 3 or Federal Government to execute the law, without any 4 special delegation, a legislator simply has the power, 5 which a private citizen wouldn't have, to bring a 6 lawsuit as a party or defend as a party to vindicate the 7 interest in the law being enforced, the law he has voted 8 for? 9 Now I can imagine arguments on both side, so 10 I'm asking you only, is there any case you can point me 11 to which will help? 12 MR. CLEMENT: I can point to you a couple of 13 cases that will help but may not be a complete solution 14 for some of the reasons you built into your question. 15 The cases I would point to help are Coleman v. Miller, 16 Karcher v. May, and Arizonans for Official English. 17 all of those -- I don't think Coleman involved any 18 specific legislative authorization, but you can 19 distinguish it, I suppose. And 20 But in trying to distinguish it, keep in 21 mind that this Court gave those 20 Senators not just 22 standing to make the argument about the role of the 23 lieutenant governor, but also gave them standing to make 24 the separate argument, which is the only one this Court 25 reached, because it was divided four to four on the 42 Alderson Reporting Company Official - Subject to Final Review 1 lieutenant governor's role, the only issue that the 2 Court reached is the issue whether prior ratification 3 disabled them from subsequent legislation action, which 4 is just a way of saying what they did was 5 unconstitutional. 6 So I think Coleman is quite close. Karcher, 7 Arizonans against English, there was an authorization. 8 We would say H. Res. 5 is enough of authorization for 9 these purposes. 10 JUSTICE SOTOMAYOR: Can you tell me where 11 the authorization is here? 12 statute that gives the Senate specifically authorization 13 to intervene and that there was consideration of 14 extending that right to the House. 15 of BLAG is strange to me, because it's not in a statute, 16 it's in a House rule. 17 I know that there is a But the appointment So where -- how does that constitute 18 anything other than a private agreement among some 19 Senators, the House leadership? 20 do they derive the right, the statutory right, to take 21 on the power of representing the House in items outside 22 of the House? 23 the House, but that's a very different step from saying 24 that they can decide who or to create standing in some 25 way, prudential or otherwise, Article III or otherwise. And where -- from where I know they control the procedures within 43 Alderson Reporting Company Official - Subject to Final Review 1 MR. CLEMENT: 2 point you to two places. 3 are pursuant to the rulemaking authority and approved by 4 the institution. 5 Rule 2.8. 6 Well, Justice Sotomayor, I can One is the House rules that They're approved in every Congress. JUSTICE SOTOMAYOR: What other House Rule 7 creates the power of the majority leaders to represent 8 the House outside of the functions of the House? 9 MR. CLEMENT: I'm not sure there is another 10 one, but that's the sole purpose of Rule 2.8. 11 creates the Office of the General Counsel -- 12 13 JUSTICE SOTOMAYOR: It This would be, I think, sort of unheard of, that -- 14 MR. CLEMENT: I don't think so, 15 Justice Sotomayor. 16 the House, essentially a predecessor to it -- - it would 17 be the same authority that has had the House appear in 18 litigation ever since Chadha. 19 vote that authorized it specifically, but we have that 20 here in H. Res. 5, which is the second place I would 21 point you. 22 23 In Chadha there was a JUSTICE SOTOMAYOR: We don't even have a vote here. 24 25 That's the same authority that gave MR. CLEMENT: H. Res. 5. We do. We do have a vote in At the beginning of this Congress in 44 Alderson Reporting Company Official - Subject to Final Review 1 January, the House passed a resolution that passed, that 2 authorized the BLAG to continue to represent the 3 interests of the House in this particular litigation. 4 So I think if there was a question before H. Res. 5, 5 there shouldn't be now. 6 I would like to -- 7 JUSTICE KENNEDY: Under your view, would the 8 Senate have the right to have standing to take the other 9 side of this case, so we have the House on one side and 10 the Senate on the other? 11 MR. CLEMENT: No, Justice Kennedy, they 12 wouldn't have the standing to be on the other side of 13 this case. 14 side of this case, and I think that's essentially what 15 you had happen in the Chadha case. 16 They would have standing to be on the same JUSTICE KENNEDY: Well, why not? They're 17 concerned about the argument and you say that the House 18 of Representatives standing alone can come into the 19 court. 20 court and intervene on the other side? Why can't the Senate standing alone come into 21 MR. CLEMENT: It -- because it wouldn't have 22 the authority to do so under Chadha. 23 makes the critical flipping of the switch that gives the 24 House the ability to intervene as a party is that the 25 Executive Branch declines to defend the statute. 45 Alderson Reporting Company What -- Chadha So if Official - Subject to Final Review 1 the Senate wants to come in and basically take -- share 2 argument time or something as an amicus, they can, but 3 there's no need for them to participate as -- as a 4 party. 5 And I would want to emphasize that in the 6 lower courts, participation by a party is absolutely 7 critical. 8 wants to see the statute invalidated be in charge of the 9 litigation in the district courts, because whether the It doesn't make sense to have the party that 10 statute is going to be invalidated is going to depend on 11 what kind of record there is in the district court. 12 It'd be one thing, Justice Scalia, if all 13 that happened is they entered consent judgment. 14 suppose then the thing would end, and then in the long 15 run, the Executive would be forced to do their job and 16 actually defend these statutes -- 17 JUSTICE ALITO: 18 MR. CLEMENT: 19 20 I Then why is -- -- but if that's not going to happen -- JUSTICE ALITO: Then why is it sufficient 21 for one house to take the position that the statute is 22 constitutional? 23 both houses, and usually the signature of the President. 24 25 The enactment of legislation requires MR. CLEMENT: Justice Alito, I think it makes perfect sense in this context, because every -- 46 Alderson Reporting Company Official - Subject to Final Review 1 each individual house has a constitutional rule before a 2 statute is repealed. 3 to make the law. 4 necessary to repeal a law. 5 go into court and effectively seek the judicial repeal 6 of a law, it makes sense that one house can essentially 7 vindicate its role in our constitutional scheme by 8 saying, wait a minute, we passed that law; it can't be 9 repealed without our participation. 10 And so yes, it takes two of them But each of their's participation is So if the Executive wants to JUSTICE ALITO: Well, if the law is passed 11 by a bare majority of one of the houses, then each 12 member of that -- of that house who was part of the 13 majority has the same interest in defending its 14 constitutionality. 15 MR. CLEMENT: I don't think that's right 16 after Raines, Justice Alito. 17 carefully distinguished between the situation of an 18 individual legislator and the situation of one of the 19 houses as a whole. 20 be a different case if we had that kind of vote. 21 that's what you have here. 22 Chadha. 23 In Raines, this Court And it specifically said this might And That's what you had in And again, I do think that -- I mean, the 24 only alternatives here are really to say that the 25 Executive absolutely must enforce these laws, and if 47 Alderson Reporting Company Official - Subject to Final Review 1 they don't, I mean, because after all -- you know, I -- 2 I really don't understand why it's -- if they're not 3 going to -- if they've made a determination that the law 4 is unconstitutional, why it makes any sense for them to 5 continue to enforce the law and put executive officers 6 in the position of doing something that the President 7 has determined is unconstitutional. 8 9 I mean, think about the qualified immunity implications of that for a minute. 10 So that's problematic enough. But if 11 they're going to be able to do that and get anything 12 more than a consent judgment, then the House is going to 13 have to be able to play its role, and it's going to have 14 to play the role of a party. 15 it done. 16 gives the game away by conceding that our participation 17 as an amicus here is necessary to solve what would 18 otherwise be a glaring adverseness problem. 19 An amicus just doesn't get And I really think, in a sense, the Executive Because once you recognize that we can 20 participate as an amicus, you've essentially recognized 21 that there's nothing inherently executive about coming 22 in and defending the constitutionality of an act of 23 Congress. 24 inherently unlegislative about coming in and making 25 arguments in defense of the statute. Or more to the point, there's nothing 48 Alderson Reporting Company Official - Subject to Final Review 1 And if that's critical, absolutely necessary 2 to ensure there's an adverse presentation of the issues, 3 well, there's no reason the House should have to do that 4 with one hand tied behind its back. 5 participation is necessary, it should participate as a 6 full party. 7 in the lower courts so they can take depositions, build 8 a factual record, and allow for a meaningful defense of 9 the statute. 10 If its And as I say, that's critically important Because the alternative really puts the 11 Executive Branch in an impossible position. 12 conflict of interest. 13 litigation decisions to promote the defense of a statute 14 they want to see invalidated. 15 the problems with their position, look at Joint Appendix 16 page 437. 17 dismiss in the history of litigation: 18 dismiss, filed by the United States, asking the district 19 court not to dismiss the case. 20 It's a They're the ones that are making And if you want to see You will see the most anomalous motion to A motion to I mean, that's what you get under their view 21 of the world, and that doesn't serve as separation of 22 powers. 23 24 25 JUSTICE KENNEDY: That -- that would give you intellectual whiplash. I'm going to have to think about that. 49 Alderson Reporting Company Official - Subject to Final Review 1 (Laughter.) 2 MR. CLEMENT: It -- it does. It does. And 3 then -- you know -- and the last thing I'll say is, we 4 saw in this case certain appeals were expedited, certain 5 appeals weren't. 6 defending the statute, they served the distinct interest 7 of the Executive. They did not serve the interest of 8 Thank you. 9 CHIEF JUSTICE ROBERTS: 10 11 12 Thank you, counsel. Ms. Jackson, you have 4 minutes remaining. REBUTTAL ARGUMENT OF VICKI C. JACKSON ON BEHALF OF THE COURT-APPOINTED AMICUS CURIAE 13 MS. JACKSON: Thank you, Your Honor. 14 I have five points I'll try to get to. 15 Just very quickly, Justice Breyer, I only 16 answered part of a question you asked me earlier, and I 17 just want to say, the U.S. is asking this Court to tell 18 it to pay money. 19 It's not asking for relief. 20 Justice Sotomayor, you asked me about how 21 the issue could come up otherwise. 22 a chance to mention, private party litigation, employees 23 against employers, there's an interpleader action right 24 now pending that was cited in the brief of the 287 25 employers -- on page 32 at note 54 -- giving examples of 50 Alderson Reporting Company I don't think I had Official - Subject to Final Review 1 how the issue of DOMA's constitutionality could arise in 2 private litigation. 3 In addition, State and local government 4 employees might have, for example, FMLA claims in which 5 the issue could arise. 6 number of ways in which the issue could arise. 7 So I think that there are a On the question of what the purpose of 1252 8 could be if it wasn't to coincide with Article III 9 injury that was raised by my -- my friend in his 10 argument, I wonder whether the Court in Chadha wasn't 11 saying something like this: 12 list. 13 be exercised only to the extent that Article III power 14 was there. 15 Court is doing in the text and footnote there. 1252 was Congress's wish It was like -- like a citizen suit provision, to 16 That's a way to make sense out of what the As to the question of BLAG, which has been 17 very fully discussed already, I do want to say that 18 after-the-fact authorization seems to me quite troubling 19 and inconsistent with this Court's approach in Summers 20 v. Earth Institute, and in the -- I think it was in the 21 plurality in Lujan, where you -- you -- if a party has 22 standing, they need to have it in the first court that 23 they're in, either when it starts or certainly before 24 judgment. 25 And the rule as Justice Sotomayor observed 51 Alderson Reporting Company Official - Subject to Final Review 1 just doesn't seem to say anything about authority to 2 litigate. 3 problem here is the injury being complained of is 4 inconsistent with the separation of powers. 5 I think that in addition, the -- the big Bowsher and Buckley make very clear that 6 once the litigation is enacted, Congress's authority to 7 supervise it is at an end. 8 Executive Branch. 9 it well or badly in the view of Congress, it's in its It goes over to the And whether the Executive Branch does 10 domain. 11 if all it means is the Congress has to stay out unless 12 it thinks that the President is doing it badly. 13 And separation of powers will not be meaningful So I think Article II helps give shape to 14 what kinds of injuries alleged by parts of Congress can 15 be cognizable. 16 Finally, the three -- two or three cases 17 cited by my colleague who last spoke: 18 and Arizona, all involved State level of government, 19 where the Federal separation of powers doctrines 20 articulated in cases like Bowsher and Buckley were not 21 at issue. 22 23 Unless there are other questions, I will sit down. 24 25 Coleman, Karcher JUSTICE ALITO: question: Well, could I ask you this On the question of the House resolution -- 52 Alderson Reporting Company Official - Subject to Final Review 1 MS. JACKSON: Yes, sir. 2 JUSTICE ALITO: -- if -- if a house -- if 3 one of the houses passes a resolution saying that a 4 particular group was always authorized to represent us, 5 do you think it's consistent with the separation of 6 powers for us to examine whether that's a correct 7 interpretation of the rules of that House of Congress? 8 9 MS. JACKSON: Yes, I do, Your Honor, because that resolution is not something operating only 10 internally within the House. 11 world of the Article III courts, which this Court, in 12 proceedings in it, is in charge of. 13 It is having effect in the Moreover, in the Smith case, the -- this 14 Court said that when the Senate passed an after-the-fact 15 interpretation of what a prior rule meant, 16 notwithstanding the great respect given to the Senate's 17 interpretation, this Court could reach and did reach an 18 alternative interpretation of the meaning of the Senate 19 rules, and I would urge this Court to do the same thing 20 here. 21 JUSTICE BREYER: Maybe I -- as long as you 22 have a minute, I -- what did you think of Mr. Clement's 23 argument this way, that -- that the execution -- can 24 I -- 25 CHIEF JUSTICE ROBERTS: 53 Alderson Reporting Company Sure. Official - Subject to Final Review 1 JUSTICE BREYER: -- to execute the laws is 2 in Article II, but where the President doesn't in a 3 particular law, under those circumstances, a member of 4 the legislature, appropriately authorized, has the 5 constitutional power -- a power that is different than 6 the average person being interested in seeing that the 7 law is carried out; they can represent the power to 8 vindicate the interest in seeing that the law is 9 executed. 10 11 And that's a special interest, existing only when the Executive declines to do so. MS. JACKSON: Your Honor, I think that when 12 the Executive declines to do so, it is exercising its 13 Take Care Clause authority. 14 that the Executive shall take care that the laws be 15 faithfully executed. 16 Constitution. 17 The Take Care Clause says I think the laws include the So I don't think the distinction offered by 18 my colleague is -- is appropriate. 19 result in a significant incursion on the separation of 20 powers between the legislature and the Executive Branch, 21 and would bring this -- the Federal courts into more 22 controversies that have characteristics of interbranch 23 confrontation, in which this Court has traditionally 24 been very cautious. 25 CHIEF JUSTICE ROBERTS: 54 Alderson Reporting Company I think it would Ms. Jackson, before Official - Subject to Final Review 1 you sit down, I would like to note that you briefed and 2 argued this case as amicus curiae at the invitation of 3 the Court, and you have ably discharged the 4 responsibility, for which you have the gratitude of the 5 Court. 6 MS. JACKSON: 7 CHIEF JUSTICE ROBERTS: 8 We'll now take a very short break and turn 9 Thank you, Your Honor. Thank you. to the merits. 10 (Recess.) 11 CHIEF JUSTICE ROBERTS: I meant that we 12 would take a break, not that -- we will continue 13 argument in the case on the merits. 14 Mr. Clement? 15 ORAL ARGUMENT OF PAUL D. CLEMENT 16 ON BEHALF OF THE RESPONDENT BIPARTISAN LEGAL 17 18 19 20 ADVISORY GROUP OF THE UNITED STATES MR. CLEMENT: Mr. Chief Justice, and may it please the Court: The issue of same-sex marriage certainly 21 implicates profound and deeply held views on both sides 22 of the issue, but the legal question on the merits 23 before this Court is actually quite narrow. 24 assumption that States have the constitutional option 25 either to define marriage in traditional terms or to 55 Alderson Reporting Company On the Official - Subject to Final Review 1 recognize same-sex marriages or to adopt a compromise 2 like civil unions, does the Federal Government have the 3 same flexibility or must the Federal Government simply 4 borrow the terms in State law? 5 I would submit the basic principles of 6 federalism suggest that as long as the Federal 7 Government defines those terms solely for purposes of 8 Federal law, that the Federal Government has the choice 9 to adopt a constitutionally permissible definition or to 10 11 borrow the terms of the statute. JUSTICE GINSBURG: Mr. Clement, the problem 12 is if we are totally for the States' decision that there 13 is a marriage between two people, for the Federal 14 Government then to come in to say no joint return, no 15 marital deduction, no Social Security benefits; your 16 spouse is very sick but you can't get leave; people -- 17 if that set of attributes, one might well ask, what kind 18 of marriage is this? 19 MR. CLEMENT: And I think the answer to 20 that, Justice Ginsburg, would be to say that that is a 21 marriage under State law, and I think this Court's cases 22 when it talks about the fundamental right to marriage, I 23 take it to be talking about the State law status of 24 marriage; and the question of what does that mean for 25 purposes of Federal law has always been understood to be 56 Alderson Reporting Company Official - Subject to Final Review 1 a different matter. 2 number of situations under a number of statutes, so it's 3 simply not the case that as long as you are married 4 under State law you absolutely are going to be treated 5 as married -- 6 And that's been true certainly in a JUSTICE GINSBURG: How about divorce? Same 7 thing? That you can have a Federal notion of divorce, 8 and that that doesn't relate to what the State statute 9 is? 10 MR. CLEMENT: Well, we've never had that, 11 Your Honor, and I think that there is a difference when 12 it comes to divorce, because with divorce uniquely, you 13 could have the -- possibility that somebody's married to 14 two different people for purposes of State law and 15 Federal law. 16 But with the basic question of even whether 17 to recognize the marriage -- or probably the best way to 18 put it is just whether the Federal law treats you as 19 married for a particular purpose or not, there always 20 have been differences between the Federal law treatment 21 and the State law treatment. 22 The Federal treatment, for example, 23 recognizes common law marriages in all States whereas a 24 lot of States don't recognize common law marriages, but 25 Federal law recognizes that for some purposes -- the 57 Alderson Reporting Company Official - Subject to Final Review 1 Social Security Act, I think it's at page 4 of our 2 brief. 3 4 5 6 7 8 9 10 11 And -- JUSTICE SOTOMAYOR: But only if the State recognizes it. MR. CLEMENT: No, I don't think that is true for purposes of that provision. JUSTICE SOTOMAYOR: And so there is a common law, Federal common law definition? MR. CLEMENT: That's my understanding, that's -- as discussed -- JUSTICE SOTOMAYOR: I thought it was 12 reverse, that if the State law recognized common law 13 marriages, the Federal law -- 14 MR. CLEMENT: My understanding is that there 15 is a Federal -- that the Federal law recognizes in -- in 16 the Social Security context even if it doesn't; and in 17 all events, there are other situations -- immigration 18 context, tax consequences. 19 get a divorce every December, you know, for tax 20 consequences, the State may well recognize that divorce. 21 The Federal Government has long said, look, we are not 22 going to allow you get a divorce every December just to 23 get remarried in January so you'll have a filing tax 24 status that works for you that is more favorable to you. 25 So the Federal Government has always treated For tax consequences, if you 58 Alderson Reporting Company Official - Subject to Final Review 1 this somewhat distinctly; it always has its own efforts; 2 and I do think for purposes of the federalism issue, it 3 really matters that all DOMA does is take this term 4 where it appears in Federal law and define it for 5 purposes of Federal law. 6 radically different case if Congress had, in 1996, 7 decided to try to stop States from defining marriage in 8 a particular way or dictate how they would decide it in 9 that way. 10 It would obviously be a JUSTICE KENNEDY: Well, it applies to over 11 what, 1,100 Federal laws, I think we are saying. 12 it's not -- it's -- it's -- I think there is quite a bit 13 to your argument that if the tax deduction case, which 14 is specific, whether or not if Congress has the power it 15 can exercise it for the reason that it wants, that it 16 likes some marriage it does like, I suppose it can do 17 that. 18 So But when it has 1,100 laws, which in our 19 society means that the Federal Government is intertwined 20 with the citizens' day-to-day life, you are at -- at 21 real risk of running in conflict with what has always 22 been thought to be the essence of the State police 23 power, which is to regulate marriage, divorce, custody. 24 25 MR. CLEMENT: points. Well, Justice Kennedy, two First of all, the very fact that there are 59 Alderson Reporting Company Official - Subject to Final Review 1 1,100 provisions of Federal law that define the terms 2 "marriage" and "spouse" goes a long way to showing that 3 Federal law has not just stayed completely out of these 4 issues. 5 contexts where there is an independent Federal power 6 that supported that. It's gotten involved in them in a variety of 7 Now, the second thing is the fact that DOMA 8 involves all 1,100 statutes at once is not really a sign 9 of its irrationality. It is a sign that what it is, and 10 all it has ever purported to be, is a definitional 11 provision. 12 Dictionary Act, what it does is it defines the term 13 wherever it appears in Federal law in a consistent way. 14 And that was part and parcel of what Congress was trying 15 to accomplish with DOMA in 1996. 16 And like every other provision in the JUSTICE KENNEDY: Well, but it's not really 17 uniformity because it regulates only one aspect of 18 marriage. 19 It doesn't regulate all of marriage. MR. CLEMENT: Well, that's true but I don't 20 think that's a mark against it for federalism purposes, 21 and it -- it addressed a particular issue at a point, 22 remember in 1996, Congress is addressing this issue 23 because they are thinking that the State of Hawaii 24 through its judicial action is about to change the 25 definition of marriage from a way that it had been 60 Alderson Reporting Company Official - Subject to Final Review 1 defined in every jurisdiction in the United States. 2 what that meant is that when Congress passed every one 3 of the statutes affected by DOMA's definition, the 4 Congress that was passing that statute had in mind the 5 traditional definition. 6 And And so Congress in 1996 at that point says, 7 the States are about to experiment with changing this, 8 but the one thing we know is all these Federal statutes 9 were passed with the traditional definition in mind. 10 And if rational basis is the test, it has to be rational 11 for Congress then to say, well, we are going to reaffirm 12 what this word has always meant for purposes of Federal 13 law. 14 JUSTICE ALITO: Suppose we look just at the 15 estate tax provision that's at issue in this case, which 16 provides specially favorable treatment to a married 17 couple as opposed to any other individual or economic 18 unit. 19 that really to foster traditional marriage, or was 20 Congress just looking for a convenient category to 21 capture households that function as a unified economic 22 unit? 23 What was the purpose of that? MR. CLEMENT: Was the purpose of Well, I think for these 24 purposes actually, Justice Alito, if you go back to the 25 beginning of the estate tax deduction, what Congress was 61 Alderson Reporting Company Official - Subject to Final Review 1 trying to do was trying to provide uniform treatment of 2 taxpayers across jurisdictions, and if you look at the 3 brief that Senator Hatch and some other Senators filed, 4 they discussed this history, because what was happening 5 in 1948 when this provision was initially put into 6 Federal law was you had community property States and 7 common law States, and actually there was much more 8 favorable tax treatment if you were in a community law 9 State than a common law State. 10 And Congress didn't want to have an 11 artificial incentive for States to move from common law 12 to community property; it wanted to treat citizens the 13 same way no matter what State they were in. 14 we will give a uniform Federal deduction based on 15 marriage, and I think what that shows is that when the 16 Federal Government gets involved in the issue of 17 marriage, it has a particularly acute interest in 18 uniform treatment of people across State lines. 19 So it said, So Ms. Windsor wants to point to the 20 unfairness of the differential treatment of treating two 21 New York married couples differently, and of course for 22 purposes of New York law that's exactly the right focus, 23 but for purposes of Federal law it's much more rational 24 for Congress to -- to say, and certainly a rational 25 available choice, for Congress to say, we want to treat 62 Alderson Reporting Company Official - Subject to Final Review 1 the same-sex couple in New York the same way as the 2 committed same-sex couple in Oklahoma and treat them the 3 same. Or even more to the point for purposes -- 4 JUSTICE SOTOMAYOR: But that's begging the 5 question, because you are treating the married couples 6 differently. 7 MR. CLEMENT: 8 JUSTICE SOTOMAYOR: 9 Well -- York's married couples are different than Nebraska's. 10 MR. CLEMENT: 11 JUSTICE SOTOMAYOR: 12 You are saying that New hat. 13 But -- but the only way -- I picked that out of a But the point is that there is a difference. MR. CLEMENT: But the -- the only way they 14 are different is because of the way the State law treats 15 them. 16 case is about, and how sort of anomalous the -- the 17 treatment, the differential treatment in two States is, 18 is this is not a case that is based on a marriage 19 license issued directly by the State of New York after 20 2011 when New York recognized same-sex marriage. 21 is -- the status of Ms. Windsor as married depends on 22 New York's recognition of an Ontario marriage 23 certificate issued in 2007. 24 JUSTICE BREYER: 25 And just to be clear how -- you know, what this This You would say it would be the same thing if the State passed a law -- Congress 63 Alderson Reporting Company Official - Subject to Final Review 1 passes a law which says, well, there's some States -- 2 they all used to require 18 as the age of consent. 3 a lot of them have gone to 17. 4 get married, then no tax deduction, no medical, no 5 nothing. 6 Now, So if you're 17 when you Or some States had a residence requirement 7 of a year, some have six months, some have four months. 8 So Congress passes a law that says, well unless you're 9 there for a year, no medical deduction, no tax thing, no 10 benefits of any kind, that that would be perfectly 11 constitutional. 12 be random, it wouldn't be capricious. 13 It wouldn't be arbitrary, it wouldn't MR. CLEMENT: Well, I guess I would -- I 14 would say two things. 15 question would be what's the relevant level of scrutiny 16 and I assume the level of scrutiny for the things -- 17 I would say that the first JUSTICE BREYER: No, I just want your bottom 18 line. The bottom line here is we can imagine -- you 19 know, I can make them up all day. 20 differences between -- 21 (Laughter.) 22 JUSTICE BREYER: So can you -- Differences between States 23 have nothing to do with anything, you know, residence 24 requirements, whether you have a medical exam, 25 whether -- we can think them up all day -- how old you 64 Alderson Reporting Company Official - Subject to Final Review 1 are. And Congress just passes a law which takes about, 2 let's say, 30 percent of the people who are married in 3 the United States and says no tax deduction, no this, no 4 that, no medical -- medical benefits, none much these 5 good things, none of them for about 20, 30 percent of 6 all of the married people. 7 Can they do that? 8 MR. CLEMENT: 9 Again, I think the right way to analyze it would be, you know, is -- is there any 10 distinction drawn that implicates what level of scrutiny 11 is implicated. 12 basis, then my answer to you would be, yes, they can do 13 that. 14 basis would be -- If the level of scrutiny is a rational I mean, we'd have to talk about what the rational JUSTICE BREYER: 15 No, there isn't any. I'm 16 trying to think of examples, though I just can't imagine 17 what it is. MR. CLEMENT: 18 19 Well, I -- I think the uniform treatment of individuals across State lines -- JUSTICE BREYER: 20 All right. So you're 21 saying uniform treatment's good enough no matter how odd 22 it is, no matter how irrational. 23 uniformity. 24 what I'm -- where I'm going? 25 There is nothing but We could take -- no matter. MR. CLEMENT: Do you see No, I see exactly where you're 65 Alderson Reporting Company Official - Subject to Final Review 1 going, Justice Breyer. 2 JUSTICE BREYER: 3 (Laughter.) 4 MR. CLEMENT: All right. And -- and obviously, every 5 one of those cases would have to be decided on its own. 6 But I do think there is a powerful interest when the 7 Federal Government classifies people -- 8 JUSTICE BREYER: 9 MR. CLEMENT: 10 Yes, okay. Fine. There's a powerful interest in treating -- 11 JUSTICE BREYER: Fine, but once -- the first 12 part. 13 own, okay? 14 distinguishes and thus makes rational, or whatever basis 15 you're going to have here, treating the gay marriage 16 differently? 17 Every one of those cases has to be decided on its Now, what's special or on its own that MR. CLEMENT: Well, again, if we're -- if 18 we're coming at this from the premise that the States 19 have the option to choose, and then we come at this from 20 the perspective that Congress is passing this not in a 21 vacuum, they're passing this in 1996. 22 confronting in 1996 is the prospect that one State, 23 through its judiciary, will adopt same-sex marriage and 24 then by operation of the through full faith and credit 25 law, that will apply to any -- any couple that wants to 66 Alderson Reporting Company And what they're Official - Subject to Final Review 1 go there. 2 And the State that's thinking about doing 3 this is Hawaii; it's a very nice place to go and get 4 married. 5 going to go there, go back to their home jurisdictions, 6 insist on the recognition in their home jurisdictions of 7 their same-sex marriage in Hawaii, and then the Federal 8 Government will borrow that definition, and therefore, 9 by the operation of one State's State judiciary, And so Congress is worried that people are 10 same-sex marriage is basically going to be recognized 11 throughout the country. 12 And what Congress says is, wait a minute. 13 Let's take a timeout here. 14 age-old institution. 15 approach where every sovereign gets to do this for 16 themselves. 17 to make sure that on full faith and credit principles 18 that a decision of one State -- 19 This is a redefinition of an Let's take a more cautious And so Section 2 of DOMA says we're going JUSTICE SOTOMAYOR: But what gives the 20 Federal Government the right to be concerned at all at 21 what the definition of marriage is? 22 circle. 23 this special category -- men and women -- because the 24 States have an interest in traditional marriage that 25 they're trying to protect. Sort of going in a You're saying -- you're saying, we can create How do you get the Federal 67 Alderson Reporting Company Official - Subject to Final Review 1 Government to have the right to create categories of 2 that type based on an interest that's not there, but 3 based on an interest that belongs to the States? 4 MR. CLEMENT: Well, at least two -- two 5 responses to that, Justice Sotomayor. First is that one 6 interest that supports the Federal Government's 7 definition of this term is whatever Federal interest 8 justifies the underlying statute in which it appears. 9 So, in every one of these statutes that affected, by 10 assumption, there's some Article I Section 8 11 authority -- 12 JUSTICE SOTOMAYOR: So they can create a 13 class they don't like -- here, homosexuals -- or a class 14 that they consider is suspect in the marriage category, 15 and they can create that class and decide benefits on 16 that basis when they themselves have no interest in the 17 actual institution of marriage as married. 18 control that. 19 MR. CLEMENT: The State's Just to clarify, Justice 20 Sotomayor, I'm not suggesting that the Federal 21 Government has any special authority to recognize 22 traditional marriage. 23 nobody can do it. 24 then the Federal Government can't do it. 25 Government -- So if -- the assumption is that If the States can't do it either, 68 Alderson Reporting Company So the Federal Official - Subject to Final Review 1 2 JUSTICE SOTOMAYOR: assuming -- 3 4 MR. CLEMENT: Okay. JUSTICE SOTOMAYOR: Assuming I assume the States can -- 7 MR. CLEMENT: 8 JUSTICE SOTOMAYOR: 9 So then the question is -- 5 6 No, I'm -- I'm So then, if the States can -- -- what creates the right -- 10 MR. CLEMENT: -- the Federal Government has 11 sort of two sets of authorities that give it sort of a 12 legitimate interest to wade into this debate. 13 is whatever authority gives rise to the underlying 14 statute. 15 that, you know, the Federal Government recognizes that 16 it's a big player in the world, that it has a lot of 17 programs that might give States incentives to change the 18 rules one way or another. Now, one The second and complementary authority is 19 And the best way -- one way to stay out of 20 the debate and let just the -- the States develop this 21 and let the democratic process deal with this is to just 22 say, look, we're going to stick with what we've always 23 had, which is traditional definition. 24 to create a regime that gives people an incentive and 25 point to Federal law and say, well, another reason you 69 Alderson Reporting Company We're not going Official - Subject to Final Review 1 should have same-sex marriage is because then you'll get 2 a State tax deduction. 3 said, look, we're -- 4 They stayed out of it. JUSTICE KENNEDY: They've But I -- I understand the 5 logic in your argument. I -- I hadn't thought of the 6 relation between Section 2 and Section 3 in the way you 7 just said. 8 the States. 9 then Section 3, that Congress doesn't help the States You said, now Section 2 was in order to help Congress wanted to help the States. But 10 which have come to the conclusion that gay marriage is 11 lawful. 12 So that's inconsistent. MR. CLEMENT: No, no. They treat them -- 13 which is to say they -- they are preserving, they are 14 helping the States in the sense of having each sovereign 15 make this decision for themselves. 16 JUSTICE KENNEDY: We're helping the States 17 do -- if they do what we want them to, which is -- which 18 is not consistent with the historic commitment of 19 marriage and -- and of questions of -- of the rights of 20 children to the State. 21 MR. CLEMENT: With respect, Justice Kennedy, 22 that's not right. No State loses any benefits by 23 recognizing same-sex marriage. 24 What they don't do is they don't sort of open up an 25 additional class of beneficiaries under their State law Things stay the same. 70 Alderson Reporting Company Official - Subject to Final Review 1 for -- that get additional Federal benefits. 2 stay the same. 3 But things And that's why in this sense -- JUSTICE GINSBURG: They're not -- they're 4 not a question of additional benefits. 5 touch every aspect of life. 6 Social Security. 7 though, well, there's this little Federal sphere and 8 it's only a tax question. 9 I mean, they Your partner is sick. I mean, it's pervasive. It's not as It's -- it's -- as Justice Kennedy said, 10 1100 statutes, and it affects every area of life. And 11 so he was really diminishing what the State has said is 12 marriage. 13 marriage; the full marriage, and then this sort of skim 14 milk marriage. You're saying, no, State said two kinds of 15 (Laughter.) 16 MR. CLEMENT: With respect, Justice 17 Ginsburg, that's not what the Federal Government is 18 saying. 19 its own realm in Federal policies, where we assume that 20 the Federal Government has the authority to define the 21 terms that appear in their own statute, that in those 22 areas, they are going to have their own definition. 23 that's -- 24 25 The Federal Government is saying that within JUSTICE KAGAN: Mr. Clement, for the most part and historically, the only uniformity that the 71 Alderson Reporting Company And Official - Subject to Final Review 1 Federal Government has pursued is that it's uniformly 2 recognized the marriages that are recognized by the 3 State. 4 that the Federal Government was pursuing. 5 suggests that maybe something -- maybe Congress had 6 something different in mind than uniformity. 7 So, this was a real difference in the uniformity And it So we have a whole series of cases which 8 suggest the following: 9 targets a group that is not everybody's favorite group 10 in the world, that we look at those cases with some -- 11 even if they're not suspect -- with some rigor to say, 12 do we really think that Congress was doing this for 13 uniformity reasons, or do we think that Congress's 14 judgment was infected by dislike, by fear, by animus, 15 and so forth? 16 Which suggest that when Congress I guess the question that this statute 17 raises, this statute that does something that's really 18 never been done before, is whether that sends up a 19 pretty good red flag that that's what was going on. 20 MR. CLEMENT: A couple of responses, Justice 21 Kagan. First of all, I think I would take issue with 22 the premise, first of all, that this is such an unusual 23 Federal involvement on an issue like marriage. 24 look at historically, not only has the Federal 25 Government defined marriage for its own purposes 72 Alderson Reporting Company If you Official - Subject to Final Review 1 distinctly in the context of particular -- particular 2 programs, it's also intervened in -- in other areas, 3 including in-state prerogatives. 4 reason that four state constitutions include a 5 prohibition on polygamy. 6 Congress insisted on them. 7 the wake of the Civil War and in Reconstruction, 8 Congress specifically wanted to provide benefits for 9 spouses of freed slaves who fought for the Union. 10 I mean, there's a It's because the Federal There is a reason that, in In order to do it, it essentially had to 11 create state law marriages, because in the Confederacy, 12 the slaves couldn't get married. 13 their own State -- essentially, a Federal, sort of, 14 condition to define who was married under those laws. 15 So where there was the needs in the past to get 16 involved, the Federal Government has got involved. 17 So they developed The other point I would make -- but I also 18 eventually want to get around to the animus point -- but 19 the other point I would make is: 20 Congress doing something that is unusual, that deviates 21 from the way they -- they have proceeded in the past, 22 you have to ask, Well, was there good reason? 23 sense, you have to understand that, in 1996, something's 24 happening that is, in a sense, forcing Congress to 25 choose between its historic practice of deferring to the When you look at 73 Alderson Reporting Company And in a Official - Subject to Final Review 1 States and its historic practice of preferring 2 uniformity. 3 Up until 1996, it essentially has it both 4 ways: Every State has the traditional definition. 5 Congress knows that's the definition that's embedded in 6 every Federal law. So that's fine. 7 Okay. 8 JUSTICE KAGAN: 9 We can defer. 1996 -- Well, is what happened in 1996 -- and I'm going to quote from the House Report 10 here -- is that "Congress decided to reflect an honor of 11 collective moral judgment and to express moral 12 disapproval of homosexuality." 13 Is that what happened in 1996? 14 MR. CLEMENT: Does the House Report say 15 that? 16 that's enough to invalidate the statute, then you should 17 invalidate the statute. 18 approach, especially under rational basis or even 19 rational basis-plus, if that is what you are suggesting. 20 Of course, the House Report says that. And if But that has never been your This Court, even when it's to find more 21 heightened scrutiny, the O'Brien case we cite, it 22 suggests, Look, we are not going to strike down a 23 statute just because a couple of legislators may have 24 had an improper motive. 25 rational basis, we look: We're going to look, and under Is there any rational basis 74 Alderson Reporting Company Official - Subject to Final Review 1 for the statute? 2 And so, sure, the House Report says some 3 things that we are not -- we've never invoked in trying 4 to defend the statute. 5 But the House Report says other things, like 6 Congress was trying to promote democratic 7 self-governance. 8 State judiciary in Hawaii is on the verge of deciding 9 this highly contentious, highly divisive issue for And in a situation where an unelected 10 everybody, for the States -- for the other States and 11 for the Federal Government by borrowing principle, it 12 makes sense for Congress -- 13 14 JUSTICE KENNEDY: Well, but your statute applies also to States where the voters have decided it. 15 MR. CLEMENT: That's true. I -- but again, 16 I don't know that that fact alone makes it irrational. 17 And I suppose if that's what you think -- 18 19 JUSTICE KENNEDY: Just to be clear, I think your answer is fair and rational. 20 We've switched now from Federal power to 21 rationality. There is -- there is a difference. We're 22 talking -- I think we are assuming now that there is 23 Federal power and asking about the degree of scrutiny 24 that applies to it. 25 there is a Federal power? Or are we going back to whether They are -- they are 75 Alderson Reporting Company Official - Subject to Final Review 1 2 intertwined. MR. CLEMENT: I think -- I think there is so 3 clearly is a Federal power because DOMA doesn't define 4 any term that appears anywhere other than in a Federal 5 statute that we assume that there is Federal power for. 6 And if there is not Federal power for the statutes in 7 which these terms appear, that is a problem independent 8 of DOMA, but it is not a DOMA problem. 9 we have Federal power. 10 Then the question is -- 11 JUSTICE KENNEDY: So I will assume Well, I think -- I think 12 it is a DOMA problem. 13 the Federal government, under our federalism scheme, has 14 the authority to regulate marriage. 15 The question is whether or not MR. CLEMENT: And it doesn't have the 16 authority to regulate marriages, as such, but that's not 17 what DOMA does. 18 term as it appears in Federal statutes, many of those 19 Federal statutes provide benefits. 20 Federal statutes provide burdens. 21 statutes provide disclosure obligations. 22 lots of places, and if any one of -- 23 DOMA provides certain -- DOMA defines a JUSTICE ALITO: Some of those Some of those Federal It appears in Well, Congress could have 24 achieved exactly what it achieved under Section 3 by 25 excising the term "married" from the United States Code 76 Alderson Reporting Company Official - Subject to Final Review 1 and replacing it with something more neutral. 2 have said "certified domestic units," and then defined 3 this in exactly the way that Section 3 -- exactly the 4 way DOMA defines "marriage." 5 Would that make a difference? It could In that 6 instance, the Federal Government wouldn't be purporting 7 to say who is married and who is not married; it would 8 be saying who is entitled to various Federal benefits 9 and burdens based on a Federal definition. 10 MR. CLEMENT: That would make no difference, 11 Justice Alito. 12 demonstrates, though, that when the Federal Government 13 is defining this term as it appears in the Federal Code, 14 it is not regulating marriage as such. 15 important to recognize that people that are married in 16 their State, based on either the legislative acts or by 17 judicial recognition, remain married for purposes of 18 State law. 19 It does -- the hypothetical helpfully JUSTICE BREYER: And it is When you started, you 20 started by, I think, agreeing -- maybe not -- that 21 uniformity in and of itself with nothing else is not 22 likely to prove sufficient, at least if it's rational 23 basis-plus. 24 weird categories that are uniform. 25 And -- and why? Because we can think of So you say, Look at it on the merits. 77 Alderson Reporting Company Now Official - Subject to Final Review 1 that's where you are beginning to get. 2 I've heard is, Well, looking at it on the merits, there 3 is certainly a lot of harms. 4 there is, is, one, We don't want courts deciding this. 5 But of course, as was just pointed out, in some States 6 it's not courts, it's the voters. 7 But so far, what And on the plus side what Then you say, Ah, but we want -- there are 8 too many courts deciding it. 9 might decide it. Now, is -- too many courts Now what else is there? What else? 10 want to -- I want to be able to have a list, you know, 11 of really specific things that you are saying justify 12 this particular effort to achieve uniformity. 13 I want to be sure I'm not missing any. 14 15 16 And I And so far, I've got those two I mentioned. What else? JUSTICE SCALIA: I didn't understand that 17 courts were so central to your position. 18 you didn't want the voters in one State to dictate to 19 other States any more than you would want the courts in 20 one State to dictate to other States. 21 MR. CLEMENT: I -- I thought Well, I -- I think that's 22 true, Justice Scalia. 23 though, is -- I mean, it's particularly relevant here. 24 25 The point about the courts, JUSTICE BREYER: That means courts -- the courts, they do dictate in respect to time. 78 Alderson Reporting Company They Official - Subject to Final Review 1 dictate in respect to age. 2 all kinds of things. 3 What, in your opinion, is special about this homosexual 4 marriage that would justify this, other than this kind 5 of pure uniformity, if there is such a thing? 6 They dictate in respect to And what I'm looking for is: MR. CLEMENT: Well, let me -- let me just 7 get on record that -- to take issue with one of the 8 premises of this, which is we are at somehow rational 9 basis-plus land, because I would suggest strongly that 10 11 three levels of scrutiny are enough. But in all events, if you are thinking about 12 the justifications that defend this statute, that 13 justify the statute, they are obviously in the brief. 14 But it's uniformity -- but it's not -- it's not just 15 that Congress picked this, you know, We need a uniform 16 term, let's pick this out of the air. 17 They picked the traditional definition that 18 they knew reflected the underlying judgments of every 19 Federal statute on the books at that point. 20 it was the definition that had been tried in every 21 jurisdiction in the United States and hadn't been tried 22 anywhere until 2004. 23 they correctly predicted, a judicial decision. They knew And then, of course, it was, as 24 And in this context, in particular, they are 25 thinking about an individual -- I mean, this couple goes 79 Alderson Reporting Company Official - Subject to Final Review 1 to Ontario, they get the -- they get a marriage 2 certificate. 3 have gotten -- gone to Ontario and gotten a marriage 4 certificate that same day and gone back to Oklahoma. 5 And from the Federal law perspective, there is certainly 6 a rational basis in treating those two couples the same 7 way. A couple could -- from Oklahoma, could 8 If I could reserve my time. 9 CHIEF JUSTICE ROBERTS: 10 Thank you, Mr. Clement. 11 General Verrilli? 12 ORAL ARGUMENT OF DONALD B. VERRILLI, JR., 13 ON BEHALF OF THE PETITIONER 14 SUPPORTING AFFIRMANCE 15 16 GENERAL VERRILLI: Mr. Chief Justice, and may it please the Court: 17 The equal protection analysis in this case 18 should focus on two fundamental points: 19 does Section 3 do; and second, to whom does Section 3 do 20 it? 21 First, what What Section 3 does is exclude from an array 22 of Federal benefits lawfully married couples. 23 means that the spouse of a soldier killed in the line of 24 duty cannot receive the dignity and solace of an 25 official notification of next of kin. 80 Alderson Reporting Company That Official - Subject to Final Review 1 CHIEF JUSTICE ROBERTS: Suppose your -- you 2 agree that Congress could go the other way, right? 3 Congress could pass a new law today that says, We will 4 give Federal benefits. 5 Federal law, we mean committed same-sex couples as well, 6 and that could apply across the board. When we say "marriage" in 7 Or do you think that they couldn't do that? 8 GENERAL VERRILLI: 9 10 We think that wouldn't raise an equal protection problem like this statute does, Mr. Chief Justice. 11 CHIEF JUSTICE ROBERTS: 12 is: 13 Well, no, my point federalism problem either, do you? 14 15 It wouldn't -- you don't think it would raise a GENERAL VERRILLI: I don't think it would raise a federalism problem. 16 CHIEF JUSTICE ROBERTS: 17 GENERAL VERRILLI: Okay. And I -- but the key for 18 the -- for the -- our purposes is that, in addition to 19 denying these fundamental important -- fundamentally 20 important benefits, is who they are being denied to. 21 CHIEF JUSTICE ROBERTS: So just to be clear, 22 you don't think there is a federalism problem with what 23 Congress has done in DOMA? 24 25 GENERAL VERRILLI: We -- no, we don't, Mr. Chief Justice. 81 Alderson Reporting Company Official - Subject to Final Review 1 CHIEF JUSTICE ROBERTS: 2 GENERAL VERRILLI: Okay. The question is: What is 3 the constitutionality for equal protection purposes, and 4 because it's unconstitutional and it's embedded into 5 numerous Federal statutes, those statutes will have an 6 unconstitutional effect. 7 violation from the perspective of the United States 8 that -- 9 But it's the equal protection JUSTICE KENNEDY: You think Congress can use 10 its powers to supercede the traditional authority and 11 prerogative of the States to regulate marriage in all 12 respects? 13 marriage that includes age, consanguinity, etc., etc.? 14 Congress could have a uniform definition of GENERAL VERRILLI: No, I'm not saying that, 15 Your Honor. 16 then we would have to consider how to defend it. 17 that's not -- 18 I think if Congress passed such a statute, JUSTICE KENNEDY: But Well, but then there is a 19 federalism interest at stake here, and I thought you 20 told the Chief Justice there was not. 21 GENERAL VERRILLI: Well, with respect to 22 Section 3 of DOMA, the problem is an equal protection 23 problem from the point of view of the United States. 24 25 JUSTICE KAGAN: Yes, but, General, surely the question of what the Federal interests are and 82 Alderson Reporting Company Official - Subject to Final Review 1 whether those Federal interests should take account of 2 the historic State prerogatives in this area is relevant 3 to the equal protection inquiry? 4 GENERAL VERRILLI: 5 inquiry, Justice Kagan. 6 It's central to the point. 7 I completely agree with that CHIEF JUSTICE ROBERTS: Oh, so it would be 8 central to the inquiry if Congress went the other way, 9 too? 10 GENERAL VERRILLI: Well, the difference is 11 what Section 3 does is impose this exclusion from 12 Federal benefits on a class that has undeniably been 13 subject to a history of terrible discrimination on the 14 basis of -- 15 CHIEF JUSTICE ROBERTS: I understand that. 16 That's your equal protection argument. 17 responsive to my concern I'm trying to get an answer to. 18 You don't think federalism concerns come into play at 19 all in this, right? 20 GENERAL VERRILLI: It's not very Well, I think -- I just 21 want to clarify. 22 different than the other circumstance. 23 of -- 24 25 The equal protection question would be CHIEF JUSTICE ROBERTS: protection argument. 83 Alderson Reporting Company That's a matter I know the equal Official - Subject to Final Review 1 GENERAL VERRILLI: But the federalism 2 concerns come into play in the following way: In that 3 Mr. Clement has made the argument that, look, whatever 4 States can do in terms of recognizing marriage or not 5 recognizing marriage, the Federal Government has 6 commensurate authority to do or not do. 7 that's right as a matter of our equal protection 8 analysis because we don't think the Federal Government 9 should be thought of as the 51st state. We don't think States, as we 10 told the Court, yesterday we believe heightened scrutiny 11 ought to apply even to the State decisions -- 12 JUSTICE KENNEDY: But you're -- you are 13 insisting that we get to a very fundamental question 14 about equal protection, but we don't do that unless we 15 assume the law is valid otherwise to begin with. 16 are asking is it valid otherwise. 17 interest in enacting this statute and is it a valid 18 Federal interest assuming, before we get to the equal 19 protection analysis? 20 GENERAL VERRILLI: And we What is the Federal Yeah. We think whatever 21 the outer bounds of the Federal Government's authority, 22 and there certainly are outer bounds, would be, apart 23 from the equal protection violation, we don't think that 24 Section 3 apart from equal protection analysis raises a 25 federalism problem. But we do think the federalism 84 Alderson Reporting Company Official - Subject to Final Review 1 analysis does play into the equal protection analysis 2 because the Federal -- the Federal Government is not the 3 51st state for purposes of --of the interests that Mr. 4 Clement has identified on behalf of BLAG. 5 JUSTICE ALITO: Can I take you back to the 6 example that you began with, where a member of the 7 military is injured. 8 injured and they are all in same-sex relationships, and 9 in each instance the other partner in this relationship 10 So let's say three soldiers are wants to visit the soldier in a hospital. 11 First is a spouse in a State that allows 12 same-sex marriage, the second is a domestic partner in a 13 State that an allows that but not same-sex marriage, the 14 third is in an equally committed loving relationship in 15 a State that doesn't involve either. 16 is that under Federal law the first would be admitted, 17 should be admitted, but the other two would be kept out? 18 GENERAL VERRILLI: Now, your argument The question in the case, 19 Justice Alito is whether Congress has a sufficiently 20 persuasive justification for the exclusion that it has 21 imposed. 22 which -- that BLAG's arguments for the constitutionality 23 of this statute have any prospect of being upheld is if 24 the Court adopts the minimal rationality standard of Lee 25 Optical. And it -- and it does not. 85 Alderson Reporting Company The only way in Official - Subject to Final Review 1 JUSTICE ALITO: Let me take you back to the 2 example. 3 gets in, two stay out, even though your legal arguments 4 would lead to the conclusion that they all should be 5 treated the same. 6 Your -- your position seems to me, yes, one GENERAL VERRILLI: Well, the question before 7 the Court is whether the exclusion that DOMA imposes 8 violates equal protection, and it does violate equal 9 protection because you can't treat this as though it 10 were just a distinction between optometrists and 11 ophthalmologists, as the Lee Optical case did. 12 a different kind of a situation because the 13 discrimination here is being visited on a group that has 14 historically been subject to terrible discrimination on 15 the basis of personal -- 16 JUSTICE SCALIA: This is But that's -- that's the 17 same in the example that we just gave you, that 18 discrimination would have been visited on the same 19 group, and you say there it's okay. 20 GENERAL VERRILLI: No, I didn't say that. 21 said it would be subject to equal protection analysis 22 certainly, and there might be a problem. 23 JUSTICE SCALIA: So you think that's bad as 24 well, that all three of those has to be treated the 25 same, despite State law about marriage. 86 Alderson Reporting Company I Official - Subject to Final Review 1 GENERAL VERRILLI: They have to be analyzed 2 under equal protections principles, but whatever is true 3 about the other situations, in the situation in which 4 the couple is lawfully married for purposes of State law 5 and the exclusion is a result of DOMA itself, the 6 exclusion has to be justified under this Court's equal 7 protection analysis, and DOMA won't do it. 8 JUSTICE SOTOMAYOR: 9 a question. General Verrilli, I have You think, I think from your brief 10 yesterday and today, that on some level sexual 11 orientation should be looked on an intermediate standard 12 of scrutiny? 13 GENERAL VERRILLI: 14 JUSTICE SOTOMAYOR: Yes, Your Honor. All right, heightened in 15 some way. 16 law that was passed recognizing common law 17 heterosexual -- homosexual marriages. 18 under your theory that might be suspect because -- that 19 law might be suspect under equal protection, because 20 once we say sexual orientation is suspect, it would be 21 suspect whether it's homosexual or heterosexual. 22 law favors homosexuals; it would be suspect because it's 23 based on sexual orientation. 24 25 Going back to the Chief's question about a GENERAL VERRILLI: I think even The You would have -- you would have to impose the heightened scrutiny equal 87 Alderson Reporting Company Official - Subject to Final Review 1 protection analysis, sure. 2 JUSTICE SOTOMAYOR: Exactly. And so when we 3 decided race was a suspect class, people who are not 4 blacks have received -- 5 GENERAL VERRILLI: 6 JUSTICE SOTOMAYOR: Yes, that's certainly -- -- strict scrutiny on 7 whether the use of race as a class, whether they are 8 white or a black, is justified by a compelling interest. 9 GENERAL VERRILLI: That is certainly true, 10 Your Honor. 11 has actually identified as supporting this statute, I 12 think there are -- there are -- I think that you can see 13 what the problem is here. 14 If I could turn to the interest that BLAG Now, this statute is not called the Federal 15 Uniform Marriage Benefits Act; it's called the Defense 16 of Marriage Act. 17 statute is not directed at uniformity in the 18 administration of Federal benefits. 19 equally uniform systems, the system of respecting the 20 State choices and the system of -- that BLAG is 21 advocating here. 22 And the reason for that is because the All -- there is two And what BLAG's got to do in order to 23 satisfy equal protection scrutiny is justify the choice 24 between one and the other, and the difference between 25 the two is that the Section 3 choice is a choice that -- 88 Alderson Reporting Company Official - Subject to Final Review 1 Section 3 choice is a choice that discriminates. 2 it's not simply a matter sufficient to say, well, 3 uniformity is enough. 4 So Section 3 discriminates. CHIEF JUSTICE ROBERTS: So as soon as one 5 State adopted same sex marriage, the definition of 6 marriage throughout the Federal code had to change? 7 Because there is no doubt that up until that point every 8 time Congress said "marriage" they understood they were 9 acting under the traditional definition of marriage. 10 GENERAL VERRILLI: Well, I don't know, 11 Mr. Chief Justice, why you wouldn't assume that what 12 Congress was doing when it enacted a statute, 13 particularly a statute that had the word "marriage" in 14 it, was assuming that the normal rule that applies in 15 the vast majority of circumstances of deference to the 16 State definition of marriage would be the operative 17 principle. 18 CHIEF JUSTICE ROBERTS: So you don't think 19 that when Congress said "marriage" in every one of these 20 provisions that they had in mind same-sex marriages? 21 GENERAL VERRILLI: No, but they may well 22 have had in mind deferring to the normal State 23 definition of marriage, whatever it is. 24 were making the specific choice that my friend suggested 25 they were. Not that they But whatever is the case, when Congress 89 Alderson Reporting Company Official - Subject to Final Review 1 enacted DOMA that choice of exclusion has to be 2 justified under appropriate equal protection principles. 3 So the issue of uniformity just doesn't get 4 you there, because there is no uniformity advantage to 5 Section 3 of DOMA as opposed to the traditional rule. 6 The issue of administration doesn't get you there. 7 mean, at a very basic level administrative concerns 8 ought not be an important enough interest to justify 9 this kind of a discrimination under the Equal Protection 10 11 I Clause. But even if you look at them, there are no 12 genuine administrative benefits to DOMA. 13 Section 3 of DOMA makes Federal administration more 14 difficult, because now the Federal Government has to 15 look behind valid state marriage licenses and see 16 whether they are about State marriages that are out of 17 compliance with DOMA. 18 If anything, It's an additional administrative burden. 19 So there is no -- there is no administrative -- there is 20 no administrative advantage to be gained here by what -- 21 by what Congress sought to achieve. 22 reality of it is, and I think the House report makes 23 this glaringly clear, is that DOMA was not enacted for 24 any purpose of uniformity, administration, caution, 25 pausing, any of that. 90 Alderson Reporting Company And the fundamental Official - Subject to Final Review 1 It was enacted to exclude same-sex married, 2 lawfully married couples from Federal benefit regimes 3 based on a conclusion that was driven by moral 4 disapproval. 5 the pages of the House report which we cite on page 38 6 of our brief -- 7 It is quite clear in black and white in CHIEF JUSTICE ROBERTS: So that was the view 8 of the 84 Senators who voted in favor of it and the 9 President who signed it? 10 They were motivated by animus? GENERAL VERRILLI: No, Mr. Chief Justice. 11 We quoted our -- we quoted the Garrett concurrence in 12 our brief, and I think there is a lot of wisdom there, 13 that it may well not have been animus or hostility. 14 may well have been what Garrett described as the simple 15 want of careful reflection or an instinctive response to 16 a class of people or a group of people who we perceive 17 as alien or other. 18 It But whatever the explanation, whether it's 19 animus, whether it's that -- more subtle, more 20 unthinking, more reflective kind of discrimination, 21 Section 3 is discrimination. 22 the Court to recognize that this discrimination, 23 excluding lawfully married gay and lesbian couples from 24 Federal benefits, cannot be reconciled with our 25 fundamental commitment to equal treatment under law. And I think it's time for 91 Alderson Reporting Company Official - Subject to Final Review 1 This is discrimination in its most very 2 basic aspect, and the House Report, whether -- and I 3 certainly would not suggest that it was universally 4 motivated by something other than goodwill -- but the 5 reality is that it was an expression of moral 6 disapproval of exactly the kind that this Court said in 7 Lawrence would not justify the law that was struck down 8 there. 9 JUSTICE SOTOMAYOR: General, your bottom 10 line is, it's an equal protection violation for the 11 Federal Government, and all States as well? 12 GENERAL VERRILLI: Yes, Your Honor, and 13 that's the -- we took the position we took yesterday 14 with respect to marriage -- the analysis -- 15 JUSTICE SOTOMAYOR: Is there any argument 16 you can make to limit this to this case, vis-?-vis the 17 Federal Government and not the States? 18 GENERAL VERRILLI: Well, as we said 19 yesterday, we think it's an open question with respect 20 to State recognition of marriage, and they may well be 21 able to advance interests -- they may be able to advance 22 it. 23 think it would be difficult, as we said yesterday. 24 may be able to advance interests that would satisfy 25 heightened scrutiny and justify non-recognition -- I guess I shouldn't say "may well," because I do 92 Alderson Reporting Company They Official - Subject to Final Review 1 JUSTICE BREYER: Then yet -- but here -- 2 GENERAL VERRILLI: But -- but here, the 3 Federal Government's not in the same position because as 4 BLAG concedes, the Federal Government at the most can 5 act at the margins in influencing these decisions about 6 marriage and child rearing at the State level. 7 Second Circuit and the First Circuit both concluded that 8 there's no connection at all, and that's of course 9 because Section 3 doesn't make it any more likely that 10 unmarried men and women in States -- that -- unmarried 11 men and women who confront an unplanned pregnancy are 12 going to get married. And the 13 And -- and elimination of Section 3 wouldn't 14 make it any less likely that unmarried men and women are 15 going to get married. 16 all. 17 not at the margins. 18 this -- in DOMA in promoting -- It doesn't have any effect at It doesn't have any connection at all. 19 So it's There's no interest at all at JUSTICE BREYER: Or if there's no 20 interest -- I mean, I'm back where we were yesterday. 21 It seems to me, forgetting your -- your preferable 22 argument, it's a violation of equal protection 23 everywhere. 24 have something like pacts. 25 something like pacts, then you say then they also have Well, if it is, then all States have to And if they have to have 93 Alderson Reporting Company Official - Subject to Final Review 1 to allow marriage. 2 So then are you not arguing they all have to 3 allow marriage? 4 point -- 5 6 And then you say no. GENERAL VERRILLI: So with that But our point here, Justice Breyer, is that whatever -- may I finish? 7 Thank you. 8 Whatever the issue is, with -- whatever the 9 outcome is with respect to States and marriage, that the 10 Federal Government's interest in advancing those 11 justifications through Section 3 of DOMA is so 12 attenuated that two Federal courts of appeals have seen 13 it as non-existent, and it cannot justify Section 3. 14 CHIEF JUSTICE ROBERTS: 15 Thank you, General. Ms. Kaplan? 16 ORAL ARGUMENT OF ROBERTA A. KAPLAN 17 ON BEHALF OF THE RESPONDENT WINDSOR 18 19 20 MS. KAPLAN: Mr. Chief Justice, and may it please the Court: I'd like to focus on why DOMA fails even 21 under rationality review. Because of DOMA, many 22 thousands of people who are legally married under the 23 laws of nine sovereign States and the District of 24 Columbia are being treated as unmarried by the Federal 25 Government solely because they are gay. 94 Alderson Reporting Company Official - Subject to Final Review 1 These couples are being treated as unmarried 2 with respect to programs that affect family stability, 3 such as the Family Leave Act, referred to by Justice 4 Ginsburg. 5 for purposes of Federal conflict of interest rules, 6 election laws and anti-nepotism and judicial recusal 7 statutes. These couples are being treated as unmarried 8 And my client was treated as unmarried when 9 her spouse passed away, so that she had to pay $363,000 10 in estate taxes on the property that they had 11 accumulated during their 44 years together. 12 13 CHIEF JUSTICE ROBERTS: Could I ask you the same question I asked the Solicitor General? 14 Do you think there would be a problem if 15 Congress went the other way, the federalism problem? 16 Obviously, you don't think there's an equal protection 17 problem -- 18 MS. KAPLAN: Right. 19 CHIEF JUSTICE ROBERTS: -- but a federalism 20 issue, Congress said, we're going to recognize same-sex 21 couples -- committed same-sex couples -- even if the 22 State doesn't, for purposes of Federal law? 23 MS. KAPLAN: Obviously, with respect to 24 marriage, the Federal Government has always used the 25 State definitions. And I think what you're -- 95 Alderson Reporting Company Official - Subject to Final Review 1 Mr. Chief Justice, what you're proposing is to extend -- 2 the Federal Government extend additional benefits to gay 3 couples in States that do not allow marriage, to 4 equalize the system. 5 CHIEF JUSTICE ROBERTS: I just am asking 6 whether you think Congress has the power to interfere 7 with the -- to not adopt the State definition if they're 8 extending benefits. 9 Do they have that authority? 10 MS. KAPLAN: I think the question under the 11 Equal Protection Clause is what -- is what the 12 distinction is. 13 14 CHIEF JUSTICE ROBERTS: No, no. I know that. 15 You're following the lead of the Solicitor 16 General and returning to the Equal Protection Clause 17 every time I ask a federalism question. 18 19 Is there any problem under federalism principles? 20 MS. KAPLAN: With the Federal Government -- 21 CHIEF JUSTICE ROBERTS: With Congress 22 passing a law saying, we are going to adopt a different 23 definition of marriage than those States that don't 24 recognize same-sex marriage. 25 do as a matter of State law, when it comes to Federal We don't care whether you 96 Alderson Reporting Company Official - Subject to Final Review 1 benefits, same-sex marriage will be recognized. 2 MS. KAPLAN: It has certainly been argued in 3 this case by others that -- whether or not that's in any 4 way the powers of the Federal Government. 5 reasons Justice Kagan mentioned, we think the federalism 6 principles go forward a novelty question. 7 whether or not the Federal Government could have its own 8 definition of marriage for all purposes would be a very 9 closely argued question. 10 JUSTICE SCALIA: For the I think I don't understand your 11 answer. Is your answer yes or no? 12 federalism problem with that, or isn't there a 13 federalism problem? MS. KAPLAN: 14 Is there a I -- I think the Federal 15 Government could extend benefits to gay couples to 16 equalize things on a programmatic basis to make things 17 more equal. 18 own definition of marriage, I think, would be -- there's 19 a -- it'd be very closely argued whether that's outside 20 the enumerated approach. 21 Whether the Federal Government can have its JUSTICE SCALIA: Well, it's just -- all 22 these statutes use the term "marriage," and the Federal 23 Government says in all these statutes when it says 24 marriage, it includes same-sex couples, whether the 25 State acknowledges them to be married or not. 97 Alderson Reporting Company Official - Subject to Final Review 1 2 MS. KAPLAN: that would work, because they wouldn't -- 3 4 But that -- I don't know if JUSTICE SCALIA: not it would work? What do you mean whether or I don't care if it works. 5 (Laughter.) 6 JUSTICE SCALIA: 7 federalism problem? 8 9 MS. KAPLAN: The power to marry people is a power that rests with the States. 10 JUSTICE SCALIA: 11 MS. KAPLAN: 12 Does it -- does it create a issue marriage licenses. 13 Yes. The Federal Government doesn't It never has. JUSTICE SCALIA: Well, it's not doing that, 14 it's just saying for purposes -- just what it's doing 15 here. 16 statutes, when we say marriage, we mean -- instead of 17 saying we mean heterosexual marriage, we mean, whenever 18 we use it, heterosexual and homosexual marriage. It says, for purposes of all these Federal 19 If that's what it says, can it do that? 20 MS. KAPLAN: As long as the people were 21 validly married under State law, and met the 22 requirements of State law to get married -- 23 24 25 JUSTICE SCALIA: No, no, no, no. It includes -- MS. KAPLAN: I'm not sure that the Federal 98 Alderson Reporting Company Official - Subject to Final Review 1 Government -- this answers your question, 2 Justice Scalia -- I'm not sure the Federal Government 3 can create a new Federal marriage that would be some 4 kind of marriage that States don't permit. 5 JUSTICE ALITO: Well, let me get to the 6 question I asked Mr. Clement. 7 word "marriage," takes it out of the U.S. Code 8 completely. 9 as same-sex -- to include same-sex couples. 10 Substitutes something else, and defines it Surely it could do that. 11 12 It just gets rid of the MS. KAPLAN: Yes. That would not be based on the State's -- 13 JUSTICE ALITO: 14 "marriage"? 15 So it's just the word And it's just the fact that they use this term "marriage"? 16 MS. KAPLAN: Well, that's what the Federal 17 Government has always chosen to do. 18 the Federal law is structured, and it's always been 19 structured for 200 years based on the State police power 20 to define who's married. 21 presume could decide to change that if it wanted, and 22 somehow, it would be very strange for all 1,100 laws, 23 but for certain programs -- you have different 24 requirements other than marriage, and that would be 25 constitutional or unconstitutional depending on the And that's the way The Federal Government I 99 Alderson Reporting Company Official - Subject to Final Review 1 2 distinction. JUSTICE ALITO: But if the estate tax 3 follows State law, would not that create an equal 4 protection problem similar to the one that exists here? 5 Suppose there were a dispute about the -- the State of 6 residence of your client and her partner or spouse. 7 it New York, was it some other State where same-sex 8 marriage would not have been recognized? 9 there was -- the State court said the State of residence 10 Was And suppose is a State where it's not recognized. 11 Would -- would you not have essentially the 12 same equal protection argument there that you have now? 13 MS. KAPLAN: Well, let me -- let me answer 14 that question very clearly. Our position is only with 15 respect to the nine States -- and I think there are two 16 others that recognize these marriages. 17 client -- if a New York couple today marries and moves 18 to North Carolina, one of which has a constitutional 19 amendment, a State constitutional amendment -- and one 20 of the spouses dies, they would not -- and estate taxes 21 determine where the person dies, they would not be 22 entitled to the deduction. So if my 23 That is not our claim here. 24 Moreover, Justice Alito, in connection with 25 a whole host of Federal litigation, there has been 100 Alderson Reporting Company Official - Subject to Final Review 1 Federal litigation for hundreds of years with respect to 2 the residency of where people live or don't live, or 3 whether they are divorced or not divorced throughout the 4 Federal system. 5 handled that and has never before -- and we believe this 6 is why it's unconstitutional -- separated out a class of 7 married gay couples solely because they were gay. 8 9 And the Federal Government has always JUSTICE ALITO: with one -- one question. Just -- if I could follow up What if the -- the 10 hypothetical surviving spouse, partner in North 11 Carolina, brought an equal protection argument, saying 12 that there is no -- it is unconstitutional to treat me 13 differently because I am a resident of North Carolina 14 rather than a resident of New York. 15 would that be discrimination on the basis of sexual 16 orientation? 17 Would it survive? 18 What would be -- What would be the level of scrutiny? MS. KAPLAN: That would be certainly a 19 different case. It'd be more similar to the case I 20 think you heard yesterday than the case that we have 21 today. 22 discrimination should get heightened scrutiny. 23 doesn't get heightened scrutiny, obviously, it'd be 24 rational basis, and the question would be what the State 25 interests were in not allowing couples, for example, in We certainly believe that sexual-orientation 101 Alderson Reporting Company If it Official - Subject to Final Review 1 North Carolina who are gay to get married. 2 No one has identified in this case, and I 3 don't think we've heard it in the argument from my 4 friend, any legitimate difference between married gay 5 couples on the one hand and straight married couples on 6 the other that can possibly explain the sweeping, 7 undifferentiated and categorical discrimination of DOMA, 8 Section 3 of DOMA. 9 And no one has identified any legitimate 10 Federal interest that is being served by Congress's 11 decision, for the first time in our nation's history to 12 undermine the determinations of the sovereign States 13 with respect to eligibility for marriage. 14 respectfully contend that this is because there is none. 15 I would Rather, as the title of the statute makes 16 clear, DOMA was enacted to defend against the marriages 17 of gay people. 18 in moral disapproval as Justice Kagan pointed out. 19 This discriminatory purpose was rooted JUSTICE BREYER: What -- what do you think 20 of his -- the argument that I heard was, to put the 21 other side, at least one part of it as I understand it 22 said: Look, the Federal Government needs a uniform 23 rule. There has been this uniform one man - one woman 24 rule for several hundred years or whatever, and there's 25 a revolution going on in the States. 102 Alderson Reporting Company We either adopt Official - Subject to Final Review 1 the resolution -- the revolution or push it along a 2 little, or we stay out of it. 3 was saying, well, we've decided to stay out of it -- 4 MS. KAPLAN: 5 JUSTICE BREYER: And I think Mr. Clement I don't -- -- and the way to stay out 6 of it is to go with the traditional thing. 7 -- that's an argument. 8 is what? 9 10 MS. KAPLAN: So your answer to that argument I think it's an incorrect argument, Justice Breyer, for the -- 11 12 I mean, that JUSTICE BREYER: I understand you do; I'd like to know the reason. 13 (Laughter.) 14 MS. KAPLAN: Of course. Congress did not 15 stay out of it. 16 it. 17 the Federal Government of couples who are already 18 married, solely based on their sexual orientation, and 19 what it's doing is undermining, as you can see in the 20 briefs of the States of New York and others, it's 21 undermining the policy decisions made by those States 22 that have permitted gay couples to marry. 23 Section 3 of DOMA is not staying out of Section 3 of DOMA is stopping the recognition by States that have already resolved the 24 cultural, the political, the moral -- whatever other 25 controversies, they're resolved in those States. 103 Alderson Reporting Company And by Official - Subject to Final Review 1 fencing those couples off, couples who are already 2 married, and treating them as unmarried for purposes of 3 Federal law, you're not -- you're not taking it one step 4 at a time, you're not promoting caution, you're putting 5 a stop button on it, and you're having discrimination 6 for the first time in our country's history against a 7 class of married couples. 8 CHIEF JUSTICE ROBERTS: 9 JUSTICE SOTOMAYOR: Is the -- Now, the -- the 10 discriminations are not the sexual orientation, but on a 11 class of marriage; is that what you're -- 12 13 14 MS. KAPLAN: It's a class of married couples who are gay. JUSTICE SOTOMAYOR: So I pose the same 15 question I posed to the General to you. 16 there's a difference between that discrimination and -- 17 and the discrimination of States who say homosexuals 18 can't get married? 19 MS. KAPLAN: Do you think I think that it's -- they're 20 different cases. I think when you have couples who are 21 gay who are already married, you have to distinguish 22 between those classes. 23 doesn't give marriage licenses, States do, and whatever 24 the issues would be in those States would be what 25 interest the States have, as opposed to here, what Again, the Federal Government 104 Alderson Reporting Company Official - Subject to Final Review 1 interest -- and we think there is none -- the Federal 2 Government has. 3 There is little doubt that the answer to the 4 question of why Congress singled out gay people's 5 marriages for disrespect through DOMA. 6 be uniformity as we've discussed. 7 savings, because you still have to explain then why the 8 cost savings is being wrought at the expense of married 9 couples who are gay; and it can't be any of the State The answer can't It can't be cost 10 interests that weren't discussed, but questions of 11 family law in parenting and marriage are done by the 12 States, not by the Federal Government. 13 The only -- the only conclusion that can be 14 drawn is what was in the House Report, which is moral 15 disapproval of gay people, which the Congress thought 16 was permissible in 1996 because it relied on the Court's 17 Bowers decision, which this Court has said was wrong, 18 not only at the time it was overruled in Lawrence, but 19 was wrong when it was decided. 20 CHIEF JUSTICE ROBERTS: So 84 Senators -- 21 it's the same question I asked before; 84 Senators based 22 their vote on moral disapproval of gay people? 23 MS. KAPLAN: No, I think -- I think what is 24 true, Mr. Chief Justice, is that times can blind, and 25 that back in 1996 people did not have the understanding 105 Alderson Reporting Company Official - Subject to Final Review 1 that they have today, that there is no distinction, 2 there is no constitutionally permissible distinction -- 3 CHIEF JUSTICE ROBERTS: Well, does that 4 mean -- times can blind. 5 base their votes on moral disapproval? 6 MS. KAPLAN: Does that mean they did not No; some clearly did. I think 7 it was based on an understanding that gay -- an 8 incorrect understanding that gay couples were 9 fundamentally different than straight couples, an 10 understanding that I don't think exists today and that's 11 the sense I'm using that times can blind. 12 was -- we all can understand that people have moved on 13 this, and now understand that there is no such 14 distinction. 15 bigotry, I think it was based on a misunderstanding on 16 gay people and their -- 17 I think there So I'm not saying it was animus or JUSTICE SCALIA: Why -- why are you so 18 confident in that -- in that judgment? 19 many States permit gay -- gay couples to marry? 20 MS. KAPLAN: 21 JUSTICE SCALIA: 22 23 Today? 9. How many -- how 9, Your Honor. And -- and so there has been this sea change between now and 1996. MS. KAPLAN: I think with respect to the 24 understanding of gay people and their relationships 25 there has been a sea change, Your Honor. 106 Alderson Reporting Company Official - Subject to Final Review 1 2 JUSTICE GINSBURG: civil unions now? 3 4 MS. KAPLAN: I believe -- that was discussed in the arguments, 8 or 9, I believe. 5 6 How many States have JUSTICE GINSBURG: And how many had it in 1996? 7 MS. KAPLAN: 8 fewer at the time. 9 I -- yes, it was much, much Ginsburg; I apologize. 10 I don't have that number, Justice CHIEF JUSTICE ROBERTS: I suppose the sea 11 change has a lot to do with the political force and 12 effectiveness of people representing, supporting your 13 side of the case? 14 MS. KAPLAN: I disagree with that, 15 Mr. Chief Justice, I think the sea change has to do, 16 just as discussed was Bowers and Lawrence, was an 17 understanding that there is no difference -- there was 18 fundamental difference that could justify this kind of 19 categorical discrimination between gay couples and 20 straight couples. 21 CHIEF JUSTICE ROBERTS: You don't doubt that 22 the lobby supporting the enactment of same sex-marriage 23 laws in different States is politically powerful, do 24 you? 25 MS. KAPLAN: With respect to that category, 107 Alderson Reporting Company Official - Subject to Final Review 1 that categorization of the term for purposes of 2 heightened scrutiny, I would, Your Honor. 3 CHIEF JUSTICE ROBERTS: 4 MS. KAPLAN: 5 CHIEF JUSTICE ROBERTS: I don't -- Really? Yes. As far as I can 6 tell, political figures are falling over themselves to 7 endorse your side of the case. 8 9 MS. KAPLAN: The fact of the matter is, Mr. Chief Justice, is that no other group in recent 10 history has been subjected to popular referenda to take 11 away rights that have already been given or exclude 12 those rights, the way gay people have. 13 those referenda have ever lost. 14 then passed a couple years later. 15 where they already have a statute on the books that 16 prohibits marriages between gay people. 17 And only two of One was in Arizona; it One was in Minnesota So I don't think -- and until 1990 gay 18 people were not allowed to enter this country. 19 don't think that the political power of gay people today 20 could possibly be seen within that framework, and 21 certainly is analogous -- I think gay people are far 22 weaker than the women were at the time of Frontiero. 23 CHIEF JUSTICE ROBERTS: So I Well, but you just 24 referred to a sea change in people's understandings and 25 values from 1996, when DOMA was enacted, and I'm just 108 Alderson Reporting Company Official - Subject to Final Review 1 trying to see where that comes from, if not from the 2 political effectiveness of -- of groups on your side of 3 the case. 4 MS. KAPLAN: To flip the language of the 5 House Report, Mr. Chief Justice, I think it comes from a 6 moral understanding today that gay people are no 7 different, and that gay married couples' relationships 8 are not significantly different from the relationships 9 of straight married people. 10 I don't think -- CHIEF JUSTICE ROBERTS: I understand that. 11 I am just trying to see how -- where that that moral 12 understanding came from, if not the political 13 effectiveness of a particular group. 14 MS. KAPLAN: I -- I think it came -- is, 15 again is very similar to the, what you saw between 16 Bowers and Lawrence. 17 understanding. 18 I think it came to a societal I don't believe that societal understanding 19 came strictly through political power; and I don't think 20 that gay people today have political power as that -- 21 this Court has used that term with -- in connection with 22 the heightened scrutiny analysis. 23 24 25 CHIEF JUSTICE ROBERTS: Thank you, Ms. Kaplan. Mr. Clement, you have 3 minutes remaining. 109 Alderson Reporting Company Official - Subject to Final Review 1 REBUTTAL ARGUMENT OF PAUL D. CLEMENT 2 ON BEHALF OF THE RESPONDENT BIPARTISAN LEGAL 3 ADVISORY GROUP OF THE UNITED STATES 4 5 MR. CLEMENT: Thank you, Mr. Chief Justice, just three points in rebuttal. 6 First of all, I was not surprised to hear 7 the Solicitor General concede that there is no unique 8 federalism problem with DOMA, because in the Gill 9 litigation in the First Circuit, the State of 10 Massachusetts -- the Commonwealth of Massachusetts 11 invoked the Tenth Amendment, and on that issue the 12 United States continued to defend DOMA because there is 13 no unique federalism problem with it, as the Chief 14 Justice's question suggested. 15 there are only 9 States left and Congress wants to adopt 16 a uniform Federal law solely for Federal law purposes to 17 going the other way, it is fully entitled to do that. 18 It has the power to do that. 19 If 10 years from now I would say also the Federal Government has 20 conceded in this litigation that there is a rational 21 basis for this statute, something else to keep in mind. 22 I would also say that this provision is not 23 so unique. 24 Act -- 25 The very next provision in the Dictionary JUSTICE GINSBURG: Rational basis, 110 Alderson Reporting Company Official - Subject to Final Review 1 Mr. Clement -- is a problem in your briefing. 2 to say and you repeat it today that there is three 3 tiers, and if you get into rational basis then it's 4 anything goes. 5 very first gender discrimination case, Reed v. Reed, the 6 Court did something it had never done in the history of 7 the country under rational basis. 8 intermediate tier then. 9 11 But the history of this Court is, in the MR. CLEMENT: 10 You seem There was no It was rational basis. Well -- JUSTICE GINSBURG: And yet the Court said this is rank discrimination and it failed. 12 MR. CLEMENT: And, Justice Ginsburg, 13 applying rational basis to DOMA, I think that there are 14 many rational bases that support it. 15 General says, well, you know, the United States is not 16 the 51st State to be sure, but the Federal Government 17 has interests in uniformity that no other entity has. 18 And the Solicitor And we heard today that there's a problem; 19 when somebody moves from New York to North Carolina, 20 they can lose their benefits. 21 uniquely, unlike the 50 States, can say, well, that 22 doesn't make any sense, we are going to have the same 23 rule. 24 transferred in the military from West Point to Fort Sill 25 in Oklahoma, to resist the transfer because they are The Federal Government We don't want somebody, if they are going to be 111 Alderson Reporting Company Official - Subject to Final Review 1 going to lose some benefits. 2 It makes sense to have a uniform Federal 3 rule for the Federal Government. 4 that the term "marriage" is defined in the U.S. Code. 5 The very next provision of the Dictionary Act defines 6 "child." 7 province of State governments, do appear in multiple 8 Federal statutes and it's a Federal role to define those 9 terms. 10 It is not so anomalous These terms, although they are the primary The last point I would simply make is in 11 thinking about animus, think about the fact that 12 Congress asked the Justice Department three times about 13 the constitutionality of the statute. 14 you do when you are motivated by animus. 15 times they got back the answer it was constitutional. 16 The third time, they asked again in the wake of Romer, 17 and they got the same answer: 18 That's not what The first two It's constitutional. Now the Solicitor General wants to say: 19 Well, it was want of careful reflection? Well, where do 20 we get careful reflection in our system? Generally, 21 careful reflection comes in the democratic process. 22 democratic process requires people to persuade people. 23 The The reason there has been a sea change is a 24 combination of political power, as defined by this 25 Court's cases as getting the attention of lawmakers; 112 Alderson Reporting Company Official - Subject to Final Review 1 certainly they have that. 2 That's what the democratic process requires. 3 to persuade somebody you're right. 4 a bigot. 5 You persuade them you are right. 6 But it's also persuasion. You have You don't label them You don't label them as motivated by animus. That's going on across the country. 7 Colorado, the State that brought you Amendment 2, has 8 just recognized civil unions. 9 to in the record in this case as being evidence of the Maine, that was pointed 10 persistence of discrimination because they voted down a 11 statewide referendum, the next election cycle it came 12 out the other way. 13 immune. 14 the democratic process to continue. And the Federal Congress is not They repealed "Don't Ask, Don't Tell." 15 Thank you, Your Honor. 16 CHIEF JUSTICE ROBERTS: Allow 17 Thank you, counsel, counsel. 18 The case is submitted. 19 (Whereupon, at 12:13 p.m., the case in the 20 above-entitled matter was submitted.) 21 22 23 24 25 113 Alderson Reporting Company Official - Subject to Final Review 114 A ability 45:24 able 11:11 28:25 48:11,13 78:10 92:21,21,24 ably 55:3 above-entitled 1:13 113:20 absolutely 46:6 47:25 49:1 57:4 abstract 9:8 accepting 33:10 accomplish 60:15 account 32:16 83:1 accountable 21:16 accounted32:19 accumulated 95:11 achieve 78:12 90:21 achieved7:25 76:24,24 acknowledges 97:25 act 11:21 21:13 21:15,17 27:24 30:16 31:8 35:13 38:22 48:22 58:1 60:12 88:15,16 93:5 95:3 110:24 112:5 acting 89:9 action 12:9 13:16 29:20 40:17,18 40:18 41:2 43:3 50:23 60:24 acts 37:2 77:16 actual 68:17 acute 62:17 addition 6:21 17:18 51:3 52:2 81:18 additional 70:25 71:1,4 90:18 96:2 address 18:11 26:24 33:16 addressed19:4 31:18 35:10 60:21 addressing 60:22 adequate 15:22 adjudicated 25:19 adjudication 11:12 26:4 administers 27:25 administration 88:18 90:6,13 90:24 administrative 90:7,12,18,19 90:20 admitted85:16 85:17 adopt 22:9 56:1,9 66:23 96:7,22 102:25 110:15 adopted89:5 adopts 85:24 advance 92:21 92:21,24 advancing 94:10 advantage 90:4 90:20 adversarial 15:9 adverse 12:8 16:6 32:17 49:2 adverseness 48:18 adversity 13:5 16:10 18:14 26:2 Advisory 1:23 3:10 4:4,14 5:15 35:6 55:17 110:3 advocating 88:21 affect 95:2 affirm 15:7 affirmance 1:21 2:2 3:7 4:9 9:6 10:6 18:3 80:14 affirmatively 19:11 affirmed11:17 afraid 41:18 after-the-fact 51:18 53:14 age 64:2 79:1 82:13 agency 27:23 35:13 agency's 28:1 age-old 67:14 aggrieved6:9 9:18,24 27:12 27:13,19 28:1,2 29:24 30:14 aggrievement 27:8,9,21 30:11 30:18 agree 7:2,13 8:5 10:4 11:19,23 13:22 26:4,6 28:3 81:2 83:5 agreed8:22 18:18,21,23 agreeing 77:20 agreement 16:11 16:16,17 43:18 agrees 6:6 25:25 35:14 Ah 78:7 air 79:16 AL 1:8 algorithm 23:12 alien91:17 Alito 9:7 27:12 28:6,12,16 29:2 46:17,20,24 47:10,16 52:24 53:2 61:14,24 76:23 77:11 85:5,19 86:1 99:5,13 100:2 100:24 101:8 alleged5:25 7:6 13:1,22 14:1 20:20 52:14 allow49:8 58:22 94:1,3 96:3 113:13 allowed37:23 108:18 allowing 101:25 allows 85:11,13 alluded33:1 altered28:2 alternative 49:10 53:18 alternatives 47:24 amendment 100:19,19 110:11 113:7 amici's 33:11 amicus 1:18 3:4 3:15 5:9 15:23 32:19,23 38:18 40:12 46:2 48:14,17,20 50:12 55:2 analogous 9:1 108:21 analysis 17:6 27:10,21 80:17 84:8,19,24 85:1 85:1 86:21 87:7 88:1 92:14 109:22 analyze 65:9 analyzed17:2 87:1 animus 72:14 Alderson Reporting Company 73:18 91:9,13 91:19 106:14 112:11,14 113:4 anomalous 49:16 63:16 112:3 answer7:19 8:17 12:14 56:19 65:12 75:19 83:17 97:11,11 100:13 103:7 105:3,5 112:15 112:17 answered50:16 answers 99:1 ante 36:24 anti-nepotism 95:6 anxious 39:22 anyway 7:10 apart 84:22,24 apologize 107:9 appeal 6:5 13:15 15:3 17:7 19:5 19:5 25:25 26:1 26:18 appealed26:12 appeals 12:2 26:20 40:3 50:4 50:5 94:12 appear 44:17 71:21 76:7 112:7 APPEARANC... 1:16 appearing 29:4 appears 59:4 60:13 68:8 76:4 76:18,21 77:13 appellate 9:3,4 16:5 18:19,24 25:21 Appendix 49:15 application 39:8 39:10,11,13 Official - Subject to Final Review 115 applied39:18 applies 59:10 75:14,24 89:14 apply 66:25 81:6 84:11 applying 111:13 appoint 15:23 appointed32:23 appointment 43:14 approach 51:19 67:15 74:18 97:20 appropriate 10:13 54:18 90:2 appropriately 54:4 approved44:3,4 apt 13:11,12 arbitrary 64:11 area 71:10 83:2 areas 71:22 73:2 arguably 40:24 argue 28:8 argued55:2 97:2 97:9,19 arguing 22:13 94:2 argument 1:14 3:2,5,8,13 4:2,7 4:12 5:4,8 9:8 18:2 21:1 30:12 31:1 35:4 37:13 38:13 40:13 42:22,24 45:17 46:2 50:11 51:10 53:23 55:13,15 59:13 70:5 80:12 83:16,25 84:3 85:15 92:15 93:22 94:16 100:12 101:11 102:3,20 103:7 103:7,10 110:1 arguments 15:23 16:17,18 32:17 38:12 41:5 42:9 48:25 85:22 86:3 107:4 arisen20:14 Arizona 52:18 108:13 Arizonans 42:16 43:7 array 80:21 Article 5:21 6:1 9:4 10:15 12:1 12:24,25 13:15 13:23 14:1,4,24 15:19 16:14 17:1,15,19 18:15 19:6,9 27:11 29:4 30:2 30:9,10 33:17 33:18,20 36:15 43:25 51:8,13 52:13 53:11 54:2 68:10 articulated15:13 52:20 artificial 62:11 aside 5:20 19:14 asked6:6 7:18 13:24 15:4,5,7 37:4 50:16,20 95:13 99:6 105:21 112:12 112:16 asking 16:6,11 19:20 42:10 49:18 50:17,19 75:23 84:16 96:5 aspect 9:18 22:21,23 32:24 32:25 60:17 71:5 92:2 aspects 32:13 asserted34:25 35:1 asserts 5:14,17 assume 24:12 34:10 64:16 69:5 71:19 76:5 76:8 84:15 89:11 assumes 36:18 assuming 69:2,5 75:22 84:18 89:14 assumption 37:7 55:24 68:10,22 assurance 24:18 attack 39:3 attention 112:25 attenuated94:12 Attorney 20:17 21:4 23:18 24:1 24:4 39:7,10 attributes 56:17 authoritative 10:23 authoritatively 12:3 authorities 69:11 authority 25:21 26:6 44:3,15,17 45:22 52:1,6 54:13 68:11,21 69:13,14 71:20 76:14,16 82:10 84:6,21 96:9 authorization 42:18 43:7,8,11 43:12 51:18 authorized44:19 45:2 53:4 54:4 available 21:22 62:25 average 54:6 avoid 17:1 39:13 await 5:23 aware 6:17 a.m 1:15 5:2 50:12 55:16 80:13 85:4 B 94:17 110:2 B 1:25 4:8 80:12 beliefs 11:7 back 14:14 49:4 believe 84:10 61:24 67:5 101:5,21 107:3 75:24 80:4 85:5 107:4 109:18 86:1 87:15 believes 9:13,20 93:20 105:25 11:1 112:15 belongs 68:3 bad 86:23 beneficiaries badly 52:9,12 70:25 bare 47:11 benefit 91:2 base 106:5 benefits 6:10 based18:7 62:14 56:15 64:10 63:18 68:2,3 65:4 68:15 77:9,16 87:23 70:22 71:1,4 91:3 99:11,19 73:8 76:19 77:8 103:18 105:21 80:22 81:4,20 106:7,15 83:12 88:15,18 bases 111:14 90:12 91:24 basic 56:5 57:16 96:2,8 97:1,15 90:7 92:2 111:20 112:1 basically 46:1 best 31:9 38:13 67:10 41:22 57:17 basis 20:20 69:19 61:10 65:12,14 big 52:2 69:16 66:14 68:16 bigot 113:4 74:18,25,25 bigotry 106:15 80:6 83:14 bill 22:6 86:15 97:16 binding 31:17,21 101:15,24 Bipartisan 1:23 110:21,25 3:10 4:4,14 111:3,7,8,13 5:15 35:5 55:16 basis-plus 74:19 110:2 77:23 79:9 bit 33:14 59:12 bear 33:2 black 88:8 91:4 bears 8:18 blacks 88:4 began 85:6 black-and-white beget 24:15 23:12 begging 63:4 BLAG 5:16 8:1 beginning 44:25 16:9 26:23 27:2 61:25 78:1 32:1 43:15 45:2 behalf 5:9 18:3 51:16 85:4 34:11 35:5 88:10,20 93:4 Alderson Reporting Company Official - Subject to Final Review 116 BLAG's 85:22 88:22 blind 105:24 106:4,11 board 81:6 books 79:19 108:15 borrow56:4,10 67:8 borrowing 75:11 bottom 64:17,18 92:9 bound 15:12 bounds 84:21,22 Bowers 105:17 107:16 109:16 Bowsher52:5,20 Branch 9:16 29:9 29:12,13,14 41:22 45:25 49:11 52:8,8 54:20 branches 28:9 break 55:8,12 Breyer10:14 11:18 16:15 27:5 40:16 41:9 41:11,18,24 50:15 53:21 54:1 63:24 64:17,22 65:15 65:20 66:1,2,8 66:11 77:19 78:24 93:1,19 94:6 102:19 103:5,10,11 brief 28:8 38:18 50:24 58:2 62:3 79:13 87:9 91:6 91:12 briefed55:1 briefing 111:1 briefs 103:20 bring 18:16 27:4 42:5 54:21 Broadcasting 22:17,18 broader14:7 broadly 17:14,15 brought 18:10 101:11 113:7 Buckley 52:5,20 build 49:7 built 42:14 burden90:18 burdens 76:20 77:9 button 104:5 Byrd 5:20 35:1 25:19 26:12,21 27:8,24 28:5,19 29:3 30:19 31:2 31:23 33:23 34:11,15,16 35:18 36:8,9 39:2,16,16 40:11 42:10 45:9,13,14,15 47:20 49:19 50:4 53:13 55:2 55:13 57:3 59:6 59:13 61:15 63:16,18 74:21 80:17 85:18 C 86:11 89:25 C 1:17 3:1,3,14 92:16 97:3 4:1 5:1,8 50:11 101:19,19,20 call 22:8 102:2 107:13 called6:17 88:14 108:7 109:3 88:15 111:5 113:9,18 Cambridge 1:17 113:19 capacity 1:7 25:9 cases 16:3,4,13 capricious 64:12 16:19 17:4 21:7 capture 61:21 25:24 32:21,22 care 10:16 23:7 34:15 39:5 40:6 32:5 54:13,13 40:7,7,10 42:1 54:14 96:24 42:13,15 52:16 98:4 52:20 56:21 careful 16:25 66:5,12 72:7,10 91:15 112:19 104:20 112:25 112:20,21 categorical carefully 47:17 102:7 107:19 Carolina 100:18 categories 68:1 101:11,13 77:24 102:1 111:19 categorization carried54:7 108:1 case 5:4,12,23 category 61:20 6:17 8:5,18 67:23 68:14 9:11 10:5,8 107:25 11:6 13:1 14:6 causation 15:20 15:8 16:18,21 caused13:16 17:19 18:6,12 caution 90:24 18:13,16,18,20 104:4 19:9,15,21 cautious 54:24 67:14 central 78:17 83:4,8 certain 11:2 21:22 50:4,4 76:17 99:23 certainly 28:24 51:23 55:20 57:1 62:24 78:3 80:5 84:22 86:22 88:5,9 92:3 97:2 101:18,21 108:21 113:1 certificate 63:23 80:2,4 certified77:2 Chadha 16:22,24 16:25 17:18 18:9 20:5 25:17 27:6,6,7,11,22 29:22 30:1,2,5 30:15,18,21,22 30:23,25 31:5 31:12 32:13,21 32:24,25 33:19 34:17,17 35:11 35:16 36:9,10 37:13 39:23 40:6 41:10,10 41:11 44:18,18 45:15,22,22 47:22 51:10 challenge 6:4 chance 50:22 change 60:24 69:17 89:6 99:21 106:22 106:25 107:11 107:15 108:24 112:23 changing 61:7 characteristics 54:22 charge 46:8 Alderson Reporting Company 53:12 charged35:13 Chief 5:3,10 12:10,13,23 17:9,22 18:1,5 18:17,22 19:3 19:13,17,19 20:1 23:5,11 31:11,16,22 34:20,23 35:2,8 38:9,17 39:6 50:9 53:25 54:25 55:7,11 55:18 80:9,15 81:1,10,11,16 81:21,25 82:1 82:20 83:7,15 83:24 89:4,11 89:18 91:7,10 94:14,18 95:12 95:19 96:1,5,13 96:21 104:8 105:20,24 106:3 107:10 107:15,21 108:3,5,9,23 109:5,10,23 110:4,13 113:16 Chief's 87:15 child 93:6 112:6 children70:20 choice 12:22 56:8 62:25 88:23,25,25 89:1,1,24 90:1 choices 88:20 choose 66:19 73:25 chose 29:20 chosen99:17 circle 67:22 Circuit 9:15 93:7 93:7 110:9 circumstance Official - Subject to Final Review 117 13:10 19:1 22:18 38:17 83:22 circumstances 14:23 18:9 20:10,13,19 21:23 27:8 28:5 30:14 33:23 54:3 89:15 cite 74:21 91:5 cited32:21 33:3 50:24 52:17 citizen42:5 51:12 citizens 59:20 62:12 civil 56:2 73:7 107:2 113:8 claim 11:12 100:23 claims 12:8 15:11 51:4 CLARA 1:8 clarify 68:19 83:21 class 68:13,13 68:15 70:25 83:12 88:3,7 91:16 101:6 104:7,11,12 classes 104:22 classic 14:15,23 26:21 classical 6:1 classifies 66:7 clause 9:17 25:8 54:13,13 90:10 96:11,16 clear 13:14 28:7 52:5 63:15 75:18 81:21 90:23 91:4 102:16 clearly 76:3 100:14 106:6 Clement 1:22 3:9 4:3,13 35:3,4,8 35:16,22 36:1,7 36:21 37:1,17 37:19 38:16 39:15 40:5 41:8 41:17,20 42:12 44:1,9,14,24 45:11,21 46:18 46:24 47:15 50:2 55:14,15 55:18 56:11,19 57:10 58:5,9,14 59:24 60:19 61:23 63:7,10 63:13 64:13 65:8,18,25 66:4 66:9,17 68:4,19 69:3,7,10 70:12 70:21 71:16,24 72:20 74:14 75:15 76:2,15 77:10 78:21 79:6 80:10 84:3 85:4 99:6 103:2 109:25 110:1,4 111:1,9,12 Clement's 53:22 client 95:8 100:6 100:17 close 43:6 closely 97:9,19 code 76:25 77:13 89:6 99:7 112:4 cognizable 5:17 13:23 52:15 coincide 51:8 Coleman 42:15 42:17 43:6 52:17 colleague 52:17 54:18 collective 74:11 Colorado 113:7 Columbia 94:24 combination 112:24 come 6:12 14:16 21:7,9 36:6,13 36:15 39:14,19 39:24 45:18,19 46:1 50:21 56:14 66:19 70:10 83:18 84:2 comes 7:2,6 28:23 38:23 57:12 96:25 109:1,5 112:21 coming 48:21,24 66:18 commensurate 84:6 commitment 70:18 91:25 committed63:2 81:5 85:14 95:21 common57:23 57:24 58:7,8,12 62:7,9,11 87:16 Commonwealth 110:10 community 62:6 62:8,12 compelling 88:8 competing 12:8 32:17 complained 13:16 52:3 complaining 14:2 complementary 69:14 complete 42:13 completely 60:3 83:5 99:8 compliance 90:17 comply 9:16 compromise 56:1 concede 34:4 110:7 conceded110:20 concedes 93:4 conceding 34:7,8 48:16 concern 39:4 83:17 concerned31:12 45:17 67:20 concerns 83:18 84:2 90:7 concession 16:3 16:4 concluded93:7 conclusion 22:25 24:1 70:10 86:4 91:3 105:13 concrete 14:15 18:12 concurrence 91:11 condition 73:14 conduct 9:12 Confederacy 73:11 confesses 15:25 confession 16:13 confident 106:18 configuration 17:17 confirm 22:10 conflict 49:12 59:21 95:5 confront 93:11 confrontation 54:23 confronting 66:22 confuse 20:9 Congress 17:16 21:13,17 23:24 24:17 25:5 26:14 27:25 29:16 30:17,22 Alderson Reporting Company 31:1,3,7 32:8 34:2,12 35:13 37:3 38:22,22 39:14 40:24 44:4,25 48:23 52:9,11,14 53:7 59:6,14 60:14 60:22 61:2,4,6 61:11,20,25 62:10,24,25 63:25 64:8 65:1 66:20 67:4,12 70:8,9 72:5,8 72:12 73:6,8,20 73:24 74:5,10 75:6,12 76:23 79:15 81:2,3,23 82:9,12,15 83:8 85:19 89:8,12 89:19,25 90:21 95:15,20 96:6 96:21 103:14 105:4,15 110:15 112:12 113:12 congressional 17:20 33:24 34:16 Congress's 51:11 52:6 72:13 102:10 connection 93:8 93:16 100:24 109:21 consanguinity 82:13 consent 46:13 48:12 64:2 consequences 24:10 58:18,18 58:20 consider68:14 82:16 consideration 7:15 43:13 Official - Subject to Final Review 118 23:13,14 24:8 26:9 29:21 32:15 considering 37:4 consistent 12:16 12:20 53:5 60:13 70:18 constitute 43:17 constitutes 30:18 30:19 Constitution 12:16,21 27:16 27:18 40:19 54:16 constitutional 5:21 14:12 22:5 23:9 36:25 37:2 37:5,7 46:22 47:1,7 54:5 55:24 64:11 99:25 100:18 100:19 112:15 112:17 constitutionality 15:17 31:8 35:12 37:25 47:14 48:22 51:1 82:3 85:22 112:13 constitutionally 56:9 106:2 constitutions 73:4 contend 102:14 contentious 75:9 context 37:10 41:2 46:25 58:16,18 73:1 79:24 contexts 60:5 continue 9:12 10:21,22 11:8 26:13 38:3 45:2 48:5 55:12 113:14 continued110:12 105:9 106:8,9 contract 8:21,22 106:19 107:19 contrary 22:25 107:20 109:7 30:13 courage 12:19 control 43:22 course 17:18 68:18 19:10 22:19 controversies 23:20 25:16 54:22 103:25 28:19 29:19 controversy 14:6 41:12 62:21 15:8 17:20 74:15 78:5 18:13,13 79:22 93:8 convenient 61:20 103:14 conviction 10:8 court 1:1,14 5:11 convictions 5:13,14,22,25 12:19 6:3,17 7:3,12 core 36:15 7:18,22,24 8:1 correct 16:17 8:9,14,24,24 19:10 25:22 9:1,13 10:4,8,9 28:11 53:6 11:11,14,25 correctly 79:23 12:4,22,25 cost 105:6,8 13:14 14:2 15:4 counsel 17:22 15:6,7,14 16:7 20:16,17 26:22 16:11,25 17:3 35:2 44:11 50:9 17:13,17,18 113:16,17 18:5,6,14,16 country 67:11 19:10,11 21:8 108:18 111:7 21:14 24:19 113:6 25:25 26:4,20 country's 104:6 27:4,21,23 couple 27:3,7 28:17,17 29:5 30:16 39:5 41:8 29:10 30:6 31:6 42:12 61:17 32:15,20 35:9 63:1,2 66:25 35:10 37:9,23 72:20 74:23 39:3 40:4,10,14 79:25 80:2 87:4 42:1,21,24 43:2 100:17 108:14 45:19,20 46:11 couples 62:21 47:5,16 49:19 63:5,9 80:6,22 50:17 51:10,15 81:5 91:2,23 51:22 53:11,14 95:1,4,21,21 53:17,19 54:23 96:3 97:15,24 55:3,5,19,23 99:9 101:7,25 74:20 80:16 102:5,5 103:17 84:10 85:24 103:22 104:1,1 86:7 91:22 92:6 104:7,12,20 94:19 100:9 105:17 109:21 111:4,6,10 courtroom16:1 courts 6:14,16 9:5 10:4 13:23 13:24 14:9 37:9 37:11 40:3,5 46:6,9 49:7 53:11 54:21 78:4,6,8,8,17 78:19,22,24,25 94:12 court's 7:20 8:20 10:4 13:3 51:19 56:21 87:6 105:16 112:25 Court-appointed 1:18 3:4,15 5:9 50:12 create 9:23 43:24 67:22 68:1,12,15 69:24 73:11 98:6 99:3 100:3 creates 44:7,11 69:8 credit 66:24 67:17 cricket 31:20 criminal 24:13 24:14,15 29:3 critical 40:11 45:23 46:7 49:1 critically 49:6 cultural 103:24 curiae 1:18 3:4 3:15 5:9 50:12 55:2 custody 59:23 cycle 113:11 day 5:23 64:19 64:25 80:4 day-to-day 59:20 deal 69:21 dealing 21:11 deals 32:14,23 debate 11:3 69:12,20 debtor 7:6 December58:19 58:22 decide 5:23 21:4 26:3 43:24 59:8 68:15 78:9 99:21 decided59:7 66:5,12 74:10 75:14 88:3 103:3 105:19 decides 25:10,15 39:7,9,11,12 39:17 deciding 17:1 75:8 78:4,8 decision 5:22 14:17 18:19,23 39:23 56:12 67:18 70:15 79:23 102:11 105:17 decisions 49:13 84:11 93:5 103:21 declared30:17 decline 23:18 declines 45:25 54:10,12 deduction 56:15 59:13 61:25 62:14 64:4,9 65:3 70:2 D 100:22 D 1:22 3:9 4:3,13 deeply 55:21 5:1 35:4 55:15 defend 20:18,24 110:1 22:23 23:3,18 Alderson Reporting Company Official - Subject to Final Review 119 31:8 35:12 36:13,15 38:14 38:22 39:17 41:1 42:6 45:25 46:16 75:4 79:12 82:16 102:16 110:12 defended21:14 23:25 24:18,19 defending 36:2 38:10,24 41:13 47:13 48:22 50:6 defends 35:24 defense 21:1 48:25 49:8,13 88:15 defer74:6 deference 89:15 deferring 73:25 89:22 deficient 35:1 define 55:25 59:4 60:1 71:20 73:14 76:3 99:20 112:8 defined61:1 72:25 77:2 112:4,24 defines 56:7 60:12 76:17 77:4 99:8 112:5 defining 59:7 77:13 definition 56:9 58:8 60:25 61:3 61:5,9 67:8,21 68:7 69:23 71:22 74:4,5 77:9 79:17,20 82:12 89:5,9,16 89:23 96:7,23 97:8,18 definitional 60:10 definitions 95:25 degree 75:23 delegate 40:23 delegation 41:1 42:2,4 democratic 69:21 75:6 112:21,22 113:2,14 demonstrates 77:12 denied81:20 denominator 20:10 denying 81:19 department 1:20 2:1 10:18 21:11 22:23 23:3 37:4 37:6 112:12 depend 46:10 depending 99:25 depends 63:21 deposition 40:15 depositions 49:7 deprived27:13 27:14,17 Deputy 1:19 derive 43:20 described91:14 description 28:4 despite 11:7 86:25 determination 10:24 12:17 21:15,17 22:1 22:20 23:2 24:6 24:7 25:7 26:13 37:9 48:3 determinations 102:12 determine 100:21 determined12:3 48:7 determining 24:9 develop 69:20 developed73:12 development 7:25 deviates 73:20 dictate 28:23 59:8 78:18,20 78:25 79:1,1 Dictionary 60:12 110:23 112:5 dies 100:20,21 difference 27:9 40:14 57:11 63:12 72:3 75:21 77:5,10 83:10 88:24 102:4 104:16 107:17,18 differences 40:12 57:20 64:20,22 different 10:2,25 16:4,13 33:14 34:15,15 35:17 35:19 36:8 38:15 41:11 43:23 47:20 54:5 57:1,14 59:6 63:9,14 72:6 83:22 86:12 96:22 99:23 101:19 104:20 106:9 107:23 109:7,8 differential 62:20 63:17 differently 6:16 62:21 63:6 66:16 101:13 difficult 13:9 90:14 92:23 dignity 80:24 diminishing 71:11 direct 19:5 directed88:17 direction 28:24 directly 33:5,6 63:19 disabled43:3 disagree 10:22 38:10 107:14 disagrees 9:17 disapproval 74:12 91:4 92:6 102:18 105:15 105:22 106:5 disavow9:10 discharged55:3 discharging 38:21 disclosure 76:21 discriminates 89:1,3 discrimination 83:13 86:13,14 86:18 90:9 91:20,21,22 92:1 101:15,22 102:7 104:5,16 104:17 107:19 111:5,11 113:10 discriminations 104:10 discriminatory 102:17 discussed8:19 19:14 51:17 58:10 62:4 105:6,10 107:3 107:16 discussion 5:6 32:14 dislike 72:14 dismiss 49:17,18 49:19 dispute 28:20 100:5 disrespect 105:5 Alderson Reporting Company distinct 19:5 50:6 distinction 40:17 54:17 65:10 86:10 96:12 100:1 106:1,2 106:14 distinctly 59:1 73:1 distinguish41:10 42:19,20 104:21 distinguished 47:17 distinguishes 66:14 district 5:25 6:14 6:15,16 7:18,20 7:22 8:7,13 9:1 40:13 46:9,11 49:18 94:23 divided30:8 42:25 divisive 75:9 divorce 57:6,7 57:12,12 58:19 58:20,22 59:23 divorced101:3,3 doctrine 15:15 doctrines 13:11 52:19 doing 12:5 48:6 51:15 52:12 67:2 72:12 73:20 89:12 98:13,14 103:19 DOMA 6:18,21 9:12 27:16 37:5 40:6,7 59:3 60:7,15 67:16 76:3,8,8,12,17 76:17,17 77:4 81:23 82:22 86:7 87:5,7 90:1,5,12,13 Official - Subject to Final Review 120 90:17,23 93:18 94:11,20,21 102:7,8,16 103:15,16 105:5 108:25 110:8,12 111:13 domain 52:10 DOMA's 6:2 51:1 61:3 domestic 77:2 85:12 DONALD 1:25 4:8 80:12 door 41:19 doubt 89:7 105:3 107:21 doubts 22:5 drawn 65:10 105:14 driven91:3 due 19:17 36:21 duty 80:24 D.C 1:10,20,22 2:1 77:16 81:13 85:15 102:25 election 95:6 113:11 eligibility 102:13 elimination 93:13 embedded74:5 82:4 emphasize 46:5 employees 50:22 51:4 employers 50:23 50:25 enables 15:14 enacted26:15 29:17 52:6 89:12 90:1,23 91:1 102:16 108:25 enacting 84:17 enactment 46:22 107:22 enacts 24:17 encourage 22:10 endorse 108:7 E enforce 7:9 9:12 E 3:1 4:1 5:1,1 21:6,20,23 22:2 earlier33:1 25:15 47:25 50:16 48:5 Earth 51:20 enforced26:14 economic 61:17 40:20 41:16 61:21 42:7 EDITH 1:6 enforcement effect 53:10 82:6 24:9,10,14,14 93:15 35:14 effectively 47:5 enforcing 12:17 effectiveness 35:19 107:12 109:2 engage 9:12 109:13 19:11 30:5 effort 78:12 English42:16 efforts 59:1 43:7 either24:3 26:10 ensure 49:2 37:15 51:23 enter7:12,22 55:25 68:23 108:18 entered8:15 26:20 46:13 entitled27:18 77:8 100:22 110:17 entity 111:17 enumerated 97:20 equal 9:16 80:17 81:9 82:3,6,22 83:3,16,21,24 84:7,14,18,23 84:24 85:1 86:8 86:8,21 87:2,6 87:19,25 88:23 90:2,9 91:25 92:10 93:22 95:16 96:11,16 97:17 100:3,12 101:11 equalize 96:4 97:16 equally 85:14 88:19 equivalent 7:8 error 15:25 16:3 16:4,13 especially 74:18 ESQ 1:17,19,22 1:25 2:3 3:3,6,9 3:14 4:3,8,10 4:13 essence 59:22 essentially 44:16 45:14 47:6 48:20 73:10,13 74:3 100:11 establishes 27:6 27:7 estate 1:7 61:15 61:25 95:10 100:2,20 ET 1:8 events 25:16 58:17 79:11 eventually 73:18 everybody 75:10 everybody's 72:9 evidence 113:9 ex 36:23,24 exact 25:4 exactly 13:24 25:3 62:22 65:25 76:24 77:3,3 88:2 92:6 exam 64:24 examine 53:6 example 11:20 22:16 24:12 36:10 51:4 57:22 85:6 86:2 86:17 101:25 examples 50:25 65:16 excising 76:25 exclude 80:21 91:1 108:11 excluding 40:6 91:23 exclusion 83:11 85:20 86:7 87:5 87:6 90:1 Excuse 6:22 23:15 execute 10:21,22 10:23 12:15,15 12:19 42:3 54:1 executed10:17 23:8 54:9,15 executing 12:17 40:22 execution 53:23 executive 9:16 9:18,19,20,23 9:24 28:3 29:9 29:12,12,14 35:13 38:10,15 38:20 39:1,17 Alderson Reporting Company 45:25 46:15 47:4,25 48:5,15 48:21 49:11 50:7 52:8,8 54:10,12,14,20 Executive's 12:14 EXECUTOR 1:7 exercise 6:5 31:3 39:22 59:15 exercised8:24 37:22 51:13 exercising 54:12 exist 40:19 existing 54:9 exists 21:2 100:4 106:10 expedited50:4 expense 105:8 experiment 61:7 explain 102:6 105:7 explanation 91:18 express 74:11 expression 92:5 extend 96:1,2 97:15 extending 43:14 96:8 extent 51:13 F facing 12:25 fact 11:19 28:2 37:7,22 40:21 59:25 60:7 75:16 99:14 108:8 112:11 factor 23:14 24:8 26:9 factual 49:8 failed111:11 fails 94:20 fair 31:20 37:7 Official - Subject to Final Review 121 75:19 fairness 29:1 faith 66:24 67:17 faithfully 10:16 23:8 54:15 falling 108:6 family 95:2,3 105:11 far 78:1,14 108:5 108:21 favor 91:8 favorable 58:24 61:16 62:8 favorite 72:9 favors 87:22 fear 72:14 Federal 13:3 14:8 17:4 40:19 40:21 41:3 42:3 52:19 54:21 56:2,3,6,8,8,13 56:25 57:7,15 57:18,20,22,25 58:8,13,15,15 58:21,25 59:4,5 59:11,19 60:1,3 60:5,13 61:8,12 62:6,14,16,23 66:7 67:7,20,25 68:6,7,20,24 68:24 69:10,15 69:25 71:1,7,17 71:18,19,20 72:1,4,23,24 73:5,13,16 74:6 75:11,20,23,25 76:3,4,5,6,9,13 76:18,19,20,20 77:6,8,9,12,13 79:19 80:5,22 81:4,5 82:5,25 83:1,12 84:5,8 84:16,18,21 85:2,2,16 88:14 88:18 89:6 90:13,14 91:2 91:24 92:11,17 93:3,4 94:10,12 94:24 95:5,22 95:24 96:2,20 96:25 97:4,7,14 97:17,22 98:11 98:15,25 99:2,3 99:16,18,20 100:25 101:1,4 101:4 102:10 102:22 103:17 104:3,22 105:1 105:12 110:16 110:16,19 111:16,20 112:2,3,8,8 113:12 federalism56:6 59:2 60:20 76:13 81:13,15 81:22 82:19 83:18 84:1,25 84:25 95:15,19 96:17,18 97:5 97:12,13 98:7 110:8,13 fencing 104:1 fewer107:8 fiduciary 11:7,20 figures 108:6 file 38:18 filed18:7 49:18 62:3 filing 58:23 fill 15:14 finally 12:3 52:16 find 16:20 74:20 fine 66:8,11 74:6 finish17:9 34:19 34:20 94:6 first 6:3 7:19 11:11,14,14,25 12:4,6 18:17 19:23 25:20,24 26:2,4 27:7 51:22 59:25 64:14 66:11 68:5 72:21,22 80:18 85:11,16 93:7 102:11 104:6 110:6,9 111:5 112:14 five 50:14 flag 72:19 flexibility 56:3 flip 109:4 flipping 45:23 FMLA 51:4 focus 62:22 80:18 94:20 follow11:5 12:1 23:3,8,9 24:9 101:8 following 72:8 84:2 96:15 follows 22:2 30:11,15 100:3 footnote 51:15 force 107:11 forced46:15 forcing 73:24 forgetting 93:21 form 5:16 formulation 33:11 Fort 111:24 forth 72:15 forward 38:1 97:6 foster61:19 fought 73:9 found 35:1 four 42:25,25 64:7 73:4 fours 28:5 framed17:6 framework 108:20 freed73:9 friend 51:9 89:24 102:4 Frontiero 108:22 full 49:6 66:24 67:17 71:13 fully 6:6 38:8 51:17 110:17 fun 8:6 function 61:21 functions 44:8 fundamental 56:22 80:18 81:19 84:13 90:21 91:25 107:18 fundamentally 81:19 106:9 G G 5:1 gained90:20 game 48:16 Garrett 91:11,14 gay 66:15 70:10 91:23 94:25 96:2 97:15 101:7,7 102:1,4 102:17 103:22 104:13,21 105:4,9,15,22 106:7,8,16,19 106:19,24 107:19 108:12 108:16,17,19 108:21 109:6,7 109:20 gender111:5 general 1:19,25 9:10 20:18 21:4 23:18,21 24:1,4 24:4,20 35:19 35:25 36:9 39:7 39:10 44:11 80:11,15 81:8 81:14,17,24 Alderson Reporting Company 82:2,14,21,24 83:4,10,20 84:1 84:20 85:18 86:6,20 87:1,8 87:13,24 88:5,9 89:10,21 91:10 92:9,12,18 93:2 94:5,14 95:13 96:16 104:15 110:7 111:15 112:18 generally 35:24 36:1 112:20 General's 9:8 genuine 90:12 getting 8:14 11:13 112:25 Gill 110:8 Ginsburg 25:11 25:18,23 26:10 40:2 56:11,20 57:6 71:3,17 95:4 107:1,5,9 110:25 111:10 111:12 give 8:25 13:7 23:12 39:9 49:23 52:13 62:14 69:11,17 81:4 104:23 given40:22 53:16 108:11 gives 43:12 45:23 48:16 67:19 69:13,24 giving 50:25 glaring 48:18 glaringly 90:23 go 9:10 11:11 14:14 17:17 28:7 31:25 47:5 61:24 67:1,3,5 67:5 81:2 97:6 103:6 God 7:13 Official - Subject to Final Review 122 goes 11:24 52:7 60:2 79:25 111:4 going 6:8,11 7:9 8:7 9:12 11:5 14:16 15:22 17:12 23:24 28:22 33:2 38:1 38:6 39:1,17 46:10,10,18 48:3,11,12,13 49:25 57:4 58:22 61:11 65:24 66:1,15 67:5,10,16,21 69:22,23 71:22 72:19 74:9,22 74:24 75:24 87:15 93:12,15 95:20 96:22 102:25 110:17 111:22,23 112:1 113:6 gonna 7:7 good 65:5,21 72:19 73:22 goodwill 92:4 gotten60:4 80:3 80:3 government 6:19 7:1,8 8:15 14:19,21,22 15:4,5,12,24 18:16 25:19,23 26:3,11,19,20 28:9 40:21 41:3 42:3 51:3 52:18 56:2,3,7,8,14 58:21,25 59:19 62:16 66:7 67:8 67:20 68:1,21 68:24,25 69:10 69:15 71:17,18 71:20 72:1,4,25 73:16 75:11 76:13 77:6,12 84:5,8 85:2 90:14 92:11,17 93:4 94:25 95:24 96:2,20 97:4,7,15,17 97:23 98:11 99:1,2,17,20 101:4 102:22 103:17 104:22 105:2,12 110:19 111:16 111:20 112:3 governments 112:7 Government's 14:16 68:6 84:21 93:3 94:10 governor 42:23 governor's 43:1 grant 20:7 granted35:20 gratitude 55:4 grave 22:5 great 53:16 group 1:23 3:11 4:5,15 5:15 28:7 35:6 53:4 55:17 72:9,9 86:13,19 91:16 108:9 109:13 110:3 groups 109:2 guess 27:20 29:7 33:1,13,19 64:13 72:16 92:22 H H 43:8 44:20,25 45:4 hand 49:4 102:5 handled101:5 happen7:11,16 20:8,9 25:5,6 45:15 46:19 happened21:16 22:3,22 25:15 25:17 41:7,25 46:13 74:8,13 happening 62:4 73:24 happens 31:23 happy 14:20,21 27:2 hard 12:24 harms 78:3 hat 63:12 Hatch 62:3 Hawaii 60:23 67:3,7 75:8 hear 5:3 110:6 heard 30:12 78:2 101:20 102:3 102:20 111:18 hearing 8:3,7 heightened 74:21 84:10 87:14,25 92:25 101:22,23 108:2 109:22 held 17:5 27:25 35:11 37:10 55:21 help 42:11,13,15 70:7,8,9 helpfully 77:11 helping 70:14,16 helps 52:13 hesitate 23:12 heterosexual 87:17,21 98:17 98:18 higher26:6 highly 75:9,9 historic 70:18 73:25 74:1 83:2 historically 71:25 72:24 86:14 history 49:17 62:4 83:13 102:11 104:6 108:10 111:4,6 Holder6:18 holding 28:3 home 67:5,6 homosexual 79:3 87:17,21 98:18 homosexuality 74:12 homosexuals 68:13 87:22 104:17 honor 6:13,25 7:17 8:8 9:25 13:21 16:2,23 17:25 19:1,10 19:23 20:4 22:16 27:1 50:13 53:8 54:11 55:6 57:11 74:10 82:15 87:13 88:10 92:12 106:20,25 108:2 113:15 hospital 85:10 host 100:25 hostility 91:13 house 1:24 3:11 4:5,15 5:14 28:7 33:6,21 35:7,11,17,20 36:7,13,19,22 36:25 37:14,22 38:8,18 39:18 39:21,24 40:8 43:14,16,19,21 43:22,23 44:2,6 44:8,8,16,17 45:1,3,9,17,24 46:21 47:1,6,12 48:12 49:3 Alderson Reporting Company 52:25 53:2,7,10 74:9,14,15 75:2 75:5 90:22 91:5 92:2 105:14 109:5 households 61:21 houses 33:12 46:23 47:11,19 53:3 House's 35:11 38:4,4 huge 40:12 hundred102:24 hundreds 101:1 hypothetical 77:11 101:10 I idea 14:6 identical 6:11 16:22,24 identified85:4 88:11 102:2,9 II 10:15 12:1,24 52:13 54:2 III 5:22 6:1 9:5 12:25 13:15,23 14:1,4,24 15:20 16:14 17:2,15 17:19 18:15 19:9 27:11 29:4 30:2,10,11 33:17,18,20 43:25 51:8,13 53:11 imagine 7:24 10:15 42:9 64:18 65:16 immediately 9:17 immigration 58:17 immune 113:13 immunity 48:8 Official - Subject to Final Review 123 implicated65:11 implicates 55:21 65:10 implications 48:9 implicit 17:14 import 41:2 important 5:21 14:3 38:5 40:1 40:10 49:6 77:15 81:19,20 90:8 impose 83:11 87:25 imposed85:21 imposes 86:7 impossible 49:11 improper74:24 incentive 62:11 69:24 incentives 69:17 include 29:16 40:2,3 54:15 73:4 99:9 includes 12:2,15 40:5 82:13 97:24 98:24 including 73:3 inconsistent 51:19 52:4 70:11 incorrect 103:9 106:8 incursion 54:19 indebtedness 7:6 7:12 independent 60:5 76:7 Indiana 8:19,20 8:22 individual 47:1 47:18 61:17 79:25 individuals 24:11 65:19 infected72:14 influencing 93:5 inherently 48:21 48:24 initially 62:5 injured6:2 30:16 30:16 32:11 85:7,8 injuries 5:14 13:22,24 14:1 15:10 52:14 injury 5:17 6:1 7:21 9:23 13:16 13:20 14:2,3,10 14:11,14,24 15:2,5,19 26:19 26:21 27:11 30:11,19 51:9 52:3 inquiry 83:3,5,8 insist 38:11 67:6 insisted73:6 insisting 84:13 instance 6:3 11:11,14 12:6 25:6,20,24 26:2 26:5 41:6,25 77:6 85:9 instances 39:24 instinctive 91:15 Institute 51:20 institution 44:4 67:14 68:17 institutional 37:14 intellectual 49:24 intensively 17:2 interbranch 54:22 interest 34:24 37:24 40:20,21 40:22,23,25 41:12,15,15 42:7 47:13 49:12 50:5,6 54:8,9 62:17 66:6,9 67:24 68:2,3,6,7,16 69:12 82:19 84:17,18 88:8 88:10 90:8 93:17,20 94:10 95:5 102:10 104:25 105:1 interested54:6 interests 28:19 29:10,15,16,16 29:17,18 32:11 45:3 82:25 83:1 85:3 92:21,24 101:25 105:10 111:17 interfere 96:6 intermediate 87:11 111:8 internally 53:10 interpleader 50:23 interpret 12:1 39:12 interpretation 53:7,15,17,18 intertwined 59:19 76:1 intervene 32:10 38:14 43:13 45:20,24 intervened33:8 39:25 40:8 73:2 intervenors 17:21 intervention 8:1 invalidate 74:16 74:17 invalidated46:8 46:10 49:14 invitation 55:2 invoke 9:4 invoked75:3 110:11 invoking 7:20 involve 34:16 85:15 involved20:22 34:18 42:17 52:18 60:4 62:16 73:16,16 involvement 72:23 involves 60:8 in-state 73:3 irrational 65:22 75:16 irrationality 60:9 irrelevant 37:18 37:20 issue 5:19 6:21 7:25 9:2,3 10:10 19:12,21 27:11 31:2,5,6 31:10,13,17 32:1,3 33:3 34:17 35:10 36:11 43:1,2 50:21 51:1,5,6 52:21 55:20,22 59:2 60:21,22 61:15 62:16 72:21,23 75:9 79:7 90:3,6 94:8 95:20 98:12 110:11 issued63:19,23 issues 14:12 18:10 49:2 60:4 104:24 items 43:21 it'd 46:12 97:19 101:19,23 11:10 12:6,12 12:23 13:6,9,21 14:13 15:1 16:2 16:23 17:11,24 26:24 50:10,11 50:13 53:1,8 54:11,25 55:6 January 45:1 58:23 Jersey 10:11 job46:15 joined31:6,13 32:4 joins 10:11 joint 49:15 56:14 JR 1:25 4:8 80:12 judge 8:7 29:4 judgment 6:6 7:12,14,23 8:2 8:15 9:15 10:3 11:14,16 16:6,7 16:12 26:1,19 30:20 46:13 48:12 51:24 72:14 74:11 106:18 judgments 79:18 judicial 14:11 15:16 47:5 60:24 77:17 79:23 95:6 judicially 5:17 judiciary 26:16 28:13,21,23 29:18 66:23 67:9 75:8 jurisdiction6:5 6:23,23 7:3,19 7:20 8:9,13,21 J 8:25 9:3,4 17:4 Jackson 1:17 3:3 18:6,8,19,24 3:14 5:7,8,10 19:12 61:1 6:13,25 7:17 79:21 8:8,16 9:25 jurisdictional 5:6 Alderson Reporting Company Official - Subject to Final Review 124 jurisdictions 62:2 55:18 56:11,20 67:5,6 57:6 58:3,7,11 jurisprudence 59:10,24 60:16 13:4 36:12 61:14,24 63:4,8 Justice 1:20 2:1 63:11,24 64:17 5:3,10 6:8,22 64:22 65:15,20 7:1 8:4,12,17 66:1,2,8,11 9:7 10:14 11:18 67:19 68:5,12 12:10,13,23 68:19 69:1,5,8 13:3,7,10,19 70:4,16,21 71:3 14:13,14 15:1 71:9,16,24 15:18 16:15 72:20 74:8 17:9,22 18:1,5 75:13,18 76:11 18:17,22 19:3 76:23 77:11,19 19:13,17,19 78:16,22,24 20:1,14 21:11 80:9,15 81:1,10 21:12,19,22 81:11,16,21,25 22:4,23 23:3,5 82:1,9,18,20 23:11,15,21 82:24 83:5,7,15 24:3,17,22,23 83:24 84:12 25:1,11,12,18 85:5,19 86:1,16 25:23 26:10,22 86:23 87:8,14 27:5,12 28:6,12 88:2,6 89:4,11 28:16 29:2,22 89:18 91:7,10 30:1,6,21,25 92:9,15 93:1,19 31:6,11,16,22 94:6,14,18 95:3 31:25 32:3,5,7 95:12,19 96:1,5 32:10 33:10 96:13,21 97:5 34:1,6,10,20 97:10,21 98:3,6 34:23 35:2,8,16 98:10,13,23 35:22,23 36:4 99:2,5,13 100:2 36:18,22,23 100:24 101:8 37:4,6,12,18 102:18,19 38:9,17 39:5 103:5,10,11 40:2,16 41:9,11 104:8,9,14 41:18,24 43:10 105:20,24 44:1,6,12,15 106:3,17,21 44:22 45:7,11 107:1,5,8,10 45:16 46:12,17 107:15,21 46:20,24 47:10 108:3,5,9,23 47:16 49:23 109:5,10,23 50:9,15,20 110:4,25 51:25 52:24 111:10,12 53:2,21,25 54:1 112:12 113:16 54:25 55:7,11 Justice's 39:6 110:14 justiciable 5:12 justification 85:20 justifications 79:12 94:11 justified87:6 88:8 90:2 justifies 14:11 68:8 justify 78:11 79:4 79:13 88:23 90:8 92:7,25 94:13 107:18 37:12,18 45:7 Laughter50:1 45:11,16 49:23 64:21 66:3 59:10,24 60:16 71:15 98:5 70:4,16,21 71:9 103:13 75:13,18 76:11 law8:6 10:5,19 82:9,18 84:12 10:22 11:21,22 Kennedy's 14:14 12:15,16,17 Kentucky 8:11 22:11 26:15,17 8:18,20,25 29:17,19 35:23 kept 85:17 38:15 40:20,22 key 27:6 81:17 41:1,16 42:3,7 killed80:23 42:7 47:3,4,6,8 kin 80:25 47:10 48:3,5 kind 34:16 46:11 54:3,7,8 56:4,8 47:20 56:17 56:21,23,25 K 64:10 79:4 57:4,14,15,18 Kagan 14:13 86:12 90:9 57:20,21,23,24 15:1,18 29:22 91:20 92:6 99:4 57:25 58:8,8,12 30:1,6 39:5 107:18 58:12,13,15 71:24 72:21 kinds 52:14 59:4,5 60:1,3 74:8 82:24 83:5 71:12 79:2 60:13 61:13 97:5 102:18 knew25:5 79:18 62:6,7,8,9,11 Kaplan 2:3 4:10 79:19 62:22,23 63:14 94:15,16,18 know11:3 19:8 63:25 64:1,8 95:18,23 96:10 19:16 26:23 65:1 66:25 96:20 97:2,14 30:4,8 31:5 69:25 70:25 98:1,8,11,20 32:4 33:21 34:6 73:11 74:6 98:25 99:11,16 36:19 43:11,22 77:18 80:5 81:3 100:13 101:18 48:1 50:3 58:19 81:5 84:15 103:4,9,14 61:8 63:15 85:16 86:25 104:12,19 64:19,23 65:9 87:4,16,16,19 105:23 106:6 69:15 75:16 87:22 91:25 106:20,23 78:10 79:15 92:7 95:22 107:3,7,14,25 83:24 89:10 96:22,25 98:21 108:4,8 109:4 96:13 98:1 98:22 99:18 109:14,24 103:12 111:15 100:3 104:3 Karcher42:16 knows 74:5 105:11 110:16 43:6 52:17 110:16 L keep 42:20 lawful 70:11 110:21 label 113:3,4 lawfully 80:22 keeping 29:21 lack 13:4 87:4 91:2,23 Kennedy 13:3,7 land 79:9 lawmakers 13:10,19 21:19 language 31:10 112:25 21:22 22:4 109:4 Lawrence 92:7 36:18,22,23 largely 20:7 105:18 107:16 Alderson Reporting Company Official - Subject to Final Review 125 109:16 laws 10:16 20:18 23:7 35:19 38:11 47:25 54:1,14,15 59:11,18 73:14 94:23 95:6 99:22 107:23 lawsuit 7:5 8:24 42:6 lawyer20:22 lead 86:4 96:15 leaders 44:7 leadership 43:19 leave 26:5 30:2 56:16 95:3 Lee 85:24 86:11 left 30:1,9 110:15 legal 1:23 3:10 4:4,14 5:15 16:18 20:16,17 21:17 27:13,15 35:5 55:16,22 86:3 110:2 legally 94:22 legislation 35:21 37:25 38:6,6 43:3 46:22 legislative 33:23 34:18 37:16 41:22 42:18 77:16 legislator 40:25 42:4 47:18 legislators 74:23 legislature 41:13 41:13 54:4,20 legislatures 37:10 legitimate 69:12 102:4,9 length 8:10 lesbian 91:23 let's 7:5 31:25 34:10 39:7,10 65:2 67:13,14 79:16 85:7 level 6:24 16:5 52:18 64:15,16 65:10,11 87:10 90:7 93:6 101:16 levels 79:10 liability 11:15 license 63:19 licenses 90:15 98:12 104:23 lieutenant 42:23 43:1 life 37:3 59:20 71:5,10 likes 59:16 likewise 6:3 limit 92:16 limitation 14:7 limiting 15:16 line 64:18,18 80:23 92:10 lines 62:18 65:19 list 51:12 78:10 litigate 52:2 litigation 14:11 22:24 23:4 44:18 45:3 46:9 49:13,17 50:22 51:2 52:6 100:25 101:1 110:9,20 little 13:9 33:14 71:7 103:2 105:3 live 101:2,2 living 21:3 lobby 107:22 local 51:3 logic 70:5 long 12:2 46:14 53:21 56:6 57:3 58:21 60:2 98:20 mark 60:20 look 20:4 49:15 marriage 55:20 58:21 61:14 55:25 56:13,18 62:2 69:22 70:3 56:21,22,24 72:10,24 73:19 57:17 59:7,16 74:22,24,25 59:23 60:2,18 77:25 84:3 60:18,25 61:19 90:11,15 62:15,17 63:18 102:22 63:20,22 66:15 looked87:11 66:23 67:7,10 looking 61:20 67:21,24 68:14 78:2 79:2 68:17,22 70:1 lose 111:20 70:10,19,23 112:1 71:12,13,13,14 loses 25:24 72:23,25 76:14 70:22 77:4,14 79:4 lost 108:13 80:1,3 81:4 lot 10:5 22:13 82:11,13 84:4,5 57:24 64:3 85:12,13 86:25 69:16 78:3 88:15,16 89:5,6 91:12 107:11 89:8,9,13,16 lots 76:22 89:19,23 90:15 Louie 6:18 92:14,20 93:6 Lovett 18:9 19:1 94:1,3,9 95:24 19:2,14 22:3 96:3,23,24 97:1 25:16 31:17,21 97:8,18,22,24 31:22,24 98:12,16,17,18 loving 85:14 99:3,4,7,14,15 lower40:10 46:6 99:24 100:8 49:7 102:13 104:11 Lujan51:21 104:23 105:11 112:4 M marriages 56:1 main 16:24 57:23,24 58:13 Maine 113:8 72:2 73:11 majority 44:7 76:16 87:17 47:11,13 89:15 89:20 90:16 making 38:13 100:16 102:16 48:24 49:12 105:5 108:16 89:24 married57:3,5 man102:23 57:13,19 61:16 mandatory 17:3 62:21 63:5,9,21 March 1:11 64:4 65:2,6 margins 93:5,17 67:4 68:17 marital 56:15 73:12,14 76:25 Alderson Reporting Company 77:7,7,15,17 80:22 87:4 91:1 91:2,23 93:12 93:15 94:22 97:25 98:21,22 99:20 101:7 102:1,4,5 103:18 104:2,7 104:12,18,21 105:8 109:7,9 marries 100:17 marry 98:8 103:22 106:19 Massachusetts 1:17 110:10,10 matter1:13 12:3 39:19 57:1 62:13 65:21,22 65:23 83:22 84:7 89:2 96:25 108:8 113:20 matters 19:8 59:3 mean 7:1 14:13 15:25 31:21 36:20 40:11 41:9,21 47:23 48:1,8 49:20 56:24 65:13 71:4,6 73:3 78:23 79:25 81:5 90:7 93:20 98:3,16,17,17 103:6 106:4,4 meaning 6:9 53:18 meaningful 49:8 52:10 means 23:8 27:13 29:23 32:8 52:11 59:19 78:24 80:23 meant 32:4,5 53:15 55:11 Official - Subject to Final Review 126 61:2,12 medical 64:4,9 64:24 65:4,4 meet 13:15 15:3 member47:12 54:3 85:6 men67:23 93:10 93:11,14 mention 50:22 mentioned16:21 78:14 97:5 merits 5:19 7:4 7:15 8:14 55:9 55:13,22 77:25 78:2 met 15:22 98:21 methodology 30:7 middle 39:6 military 85:7 111:24 milk 71:14 Miller42:15 mind 32:20 42:21 61:4,9 72:6 89:20,22 110:21 minimal 85:24 Minnesota 108:14 minute 47:8 48:9 53:22 67:12 minutes 50:10 109:25 missing 78:13 misunderstand... 106:15 mix 24:9 modify 16:12 moment 16:9 money 7:7 16:16 50:18 months 64:7,7 moral 74:11,11 91:3 92:5 102:18 103:24 105:14,22 106:5 109:6,11 morning 5:4 18:11 31:20 motion 49:16,17 motivated91:9 92:4 112:14 113:4 motive 74:24 move 62:11 moved106:12 moves 100:17 111:19 multiple 112:7 99:3 100:7,17 101:14 103:20 111:19 nice 67:3 nine 94:23 100:15 nobody's 41:21 non-existent 94:13 non-recognition 92:25 normal 89:14,22 North 100:18 101:10,13 102:1 111:19 note 50:25 55:1 notification 80:25 notion 57:7 notwithstanding 9:5 53:16 novelty 97:6 number20:19 26:9 51:6 57:2 57:2 107:8 numerator20:9 numerous 82:5 occasioned25:5 occasions 15:16 23:25 24:25 occurred31:24 odd 65:21 offered54:17 Office 20:16,17 44:11 officers 48:5 official 42:16 80:25 oh 12:21 17:7,24 24:3 83:7 Ohio 10:8 okay 19:13 20:5 66:8,13 69:3 N 74:7 81:16 82:1 N 3:1,1 4:1,1 5:1 86:19 narrow55:23 Oklahoma 63:2 narrowly 39:13 80:2,4 111:25 nation's 102:11 OLC 25:12 natural 5:18,20 old 64:25 neatly 30:8 once 48:19 52:6 Nebraska's 63:9 60:8 66:11 necessarily 22:2 87:20 30:11,15 ones 49:12 necessary 47:4 one-house 31:3 48:17 49:1,5 36:11,14 37:15 O need14:10 46:3 37:22 38:1 51:22 79:15 O 3:1 4:1 5:1 Ontario 63:22 needs 73:15 obligated8:22 80:1,3 102:22 obligation 10:20 open30:1,2,10 neither16:11 10:21 11:1,4,23 70:24 92:19 21:2 12:14,15 23:7 opening 41:19 nested15:9 38:22 operating 53:9 neutral 77:1 obligations 12:7 operation 6:2 never19:21 27:16 76:21 66:24 67:9 34:12 57:10 observed51:25 operative 89:16 72:18 74:17 obstacle 16:20 ophthalmologi... 75:3 98:12 obtain 6:4 86:11 101:5 111:6 obviously 39:16 opinion 20:16 new2:3,3 10:10 41:21 59:5 66:4 25:13 27:22 21:3,6,10 62:21 79:13 95:16,23 31:7 79:3 62:22 63:1,8,19 101:23 opposed61:17 63:20,22 81:3 occasion 25:4 90:5 104:25 Alderson Reporting Company Optical 85:25 86:11 option 21:21 55:24 66:19 optometrists 86:10 oral 1:13 3:2,5,8 4:2,7 5:8 18:2 35:4 55:15 80:12 94:16 order39:13 70:7 73:10 88:22 ordered9:19 ordinary 14:11 orientation 87:11 87:20,23 101:16 103:18 104:10 original 8:20,24 ought 32:15 84:11 90:8 outcome 94:9 outer84:21,22 outset 20:6 36:24 outside 43:21 44:8 97:19 overlapping 13:12 overruled105:18 overturn 15:6 overturns 10:9 owe 7:7,13 O'Brien74:21 P P 5:1 pacts 93:24,25 page 3:2 4:2 31:7 32:14 49:16 50:25 58:1 91:5 pages 27:22 32:13 91:5 parallel 18:8 parcel 60:14 parenting 105:11 Official - Subject to Final Review 127 part 11:18 14:7 30:5 31:12 47:12 50:16 60:14 66:12 71:25 102:21 participate 26:7 37:24 38:8 46:3 48:20 49:5 participation 46:6 47:3,9 48:16 49:5 particular22:20 30:5 39:8,16 45:3 53:4 54:3 57:19 59:8 60:21 73:1,1 78:12 79:24 109:13 particularized 37:21 particularly 40:9 62:17 78:23 89:13 parties 8:5,19 13:1,18 15:10 16:5 18:18,21 18:22 33:7,8 partner71:5 85:9 85:12 100:6 101:10 parts 52:14 party 7:19 9:24 10:2,5 13:14 14:2 15:12 17:5 27:24 28:1,2 31:8 33:9,15 35:12 38:23 39:25 40:8,11 40:13,14 42:6,6 45:24 46:4,6,7 48:14 49:6 50:22 51:21 pass 36:16 38:5 81:3 passed45:1,1 47:8,10 53:14 61:2,9 63:25 82:15 87:16 95:9 108:14 passes 53:3 64:1 64:8 65:1 passing 61:4 66:20,21 96:22 PAUL 1:22 3:9 4:3,13 35:4 55:15 110:1 pausing 90:25 pay 7:7,14 10:3 14:19,20,21 15:7 16:16 30:20 50:18 95:9 paying 14:22 peculiar 8:5 pending 50:24 people 56:13,16 57:14 62:18 65:2,6 66:7 67:4 69:24 77:15 88:3 91:16,16 94:22 98:8,20 101:2 102:17 105:15 105:22,25 106:12,16,24 107:12 108:12 108:16,18,19 108:21 109:6,9 109:20 112:22 112:22 people's 105:4 108:24 perceive 91:16 percent 65:2,5 perfect 46:25 perfectly 64:10 perform 8:22 14:9 performing 8:23 permissible 56:9 105:16 106:2 permit 26:24 99:4 106:19 permitted17:6 103:22 persistence 113:10 person 6:9 35:24 54:6 100:21 personal 11:7 86:15 personally 10:18 persons 6:2 perspective 16:14 66:20 80:5 82:7 persuade 28:16 112:22 113:3,5 persuasion 113:1 persuasive 30:12 85:20 pervasive 71:6 petition 18:7 27:4 petitioner1:4,21 2:2 3:7 4:9 5:13 18:3 31:9 80:13 pick 79:16 picked63:11 79:15,17 picture 14:8 pigeonhole 13:8 place 11:25 44:20 67:3 places 44:2 76:22 plaintiff 35:14 plane 34:25 play 48:13,14 83:18 84:2 85:1 player69:16 please 5:11 18:5 35:9 55:19 80:16 94:19 plurality 51:21 plus 78:3 point 9:20 14:14 20:5,6 23:1 26:18 29:11 30:7 31:24 33:5 33:13,14 36:2 40:6 41:9 42:10 42:12,15 44:2 44:21 48:23 60:21 61:6 62:19 63:3,12 69:25 73:17,18 73:19 78:22 79:19 81:11 82:23 83:6 89:7 94:4,5 111:24 112:10 pointed78:5 102:18 113:8 points 27:3 50:14 59:25 80:18 110:5 police 59:22 99:19 policies 71:19 policy 103:21 political 103:24 107:11 108:6 108:19 109:2 109:12,19,20 112:24 politically 107:23 polygamy 73:5 popular108:10 pose 104:14 posed104:15 position 6:19 7:23 9:11 10:12 22:9 34:1 36:8 46:21 48:6 49:11,15 78:17 86:2 92:13 93:3 100:14 possibility 38:23 57:13 Alderson Reporting Company possible 6:13 9:9 20:25 26:11 possibly 102:6 108:20 post 36:24 posture 13:2 potentially 12:8 power35:20 42:2 42:4 43:21 44:7 51:13 54:5,5,7 59:14,23 60:5 75:20,23,25 76:3,5,6,9 96:6 98:8,9 99:19 108:19 109:19 109:20 110:18 112:24 powerful 66:6,9 107:23 powers 14:8 20:21,21 49:22 52:4,10,19 53:6 54:20 82:10 97:4 practice 22:6,11 39:19 73:25 74:1 practices 41:22 precedent 27:6 31:17,22 precisely 31:2 predecessor 44:16 predicted79:23 preferable 93:21 preferring 74:1 pregnancy 93:11 premise 36:19 38:3 66:18 72:22 premises 39:2,3 79:8 prerequisites 19:9 prerogative 31:2 Official - Subject to Final Review 128 33:25 34:17 35:18 36:16 38:5,18 39:22 82:11 prerogatives 37:15 38:4 73:3 83:2 presence 17:20 presentation 15:22 32:17 49:2 preserving 70:13 President 9:17 10:16,17 20:22 21:14,16,25 22:6,11,20,25 23:1,17 24:6,7 25:7,10,15 26:12,15 29:17 29:20 40:23 46:23 48:6 52:12 54:2 91:9 presidential 20:21,21 President's 9:11 23:16 presumably 12:7 presume 99:21 presumption 37:2,3 presupposes 23:24,24 25:3 pretty 72:19 prevents 5:22 primarily 13:6 primary 112:6 Princeton 10:7,9 principle 75:11 89:17 principles 56:5 67:17 87:2 90:2 96:19 97:6 prior9:20 43:2 53:15 private 40:18 42:5 43:18 50:22 51:2 probably 39:20 57:17 problem48:18 52:3 56:11 76:7 76:8,12 81:9,13 81:15,22 82:22 82:23 84:25 86:22 88:13 95:14,15,17 96:18 97:12,13 98:7 100:4 110:8,13 111:1 111:18 problematic 48:10 problems 49:15 procedure 41:13 procedures 43:22 proceeded73:21 proceedings 8:10 53:12 process 25:4 38:7 69:21 112:21,22 113:2,14 produce 13:25 profound 55:21 programmatic 97:16 programs 69:17 73:2 95:2 99:23 prohibition73:5 prohibits 108:16 promote 49:13 75:6 promoting 93:18 104:4 pronouncing 29:19 proper14:9,9 31:8,9 35:12 property 62:6,12 95:10 proposing 96:1 proposition 21:25 32:22 prosecutor 29:5 prospect 66:22 85:23 protect 67:25 protection 9:16 80:17 81:9 82:3 82:6,22 83:3,16 83:21,25 84:7 84:14,19,23,24 85:1 86:8,9,21 87:7,19 88:1,23 90:2,9 92:10 93:22 95:16 96:11,16 100:4 100:12 101:11 protections 87:2 prove 77:22 provide 62:1 73:8 76:19,20 76:21 provides 17:21 61:16 76:17 province 112:7 provision 11:2 51:12 58:6 60:11,11 61:15 62:5 110:22,23 112:5 provisions 60:1 89:20 prudential 32:15 38:20 39:4 43:25 public 40:17,18 41:2 pure 79:5 purported60:10 purporting 77:6 purpose 44:10 51:7 57:19 61:18,18 90:24 102:17 purposes 15:20 27:10,11 33:7 33:16 43:9 56:7 56:25 57:14,25 58:6 59:2,5 60:20 61:12,24 62:22,23 63:3 72:25 77:17 81:18 82:3 85:3 87:4 95:5,22 97:8 98:14,15 104:2 108:1 110:16 pursuant 44:3 pursued72:1 pursuing 72:4 push103:1 put 5:20 48:5 57:18 62:5 102:20 puts 49:10 putting 16:8 19:13 104:4 p.m113:19 99:1,6 100:14 101:9,24 104:15 105:4 105:21 110:14 questionable 22:10 questions 7:18 12:25 30:9 52:22 70:19 105:10 quickly 50:15 quite 16:3,13,25 43:6 51:18 55:23 59:12 91:4 quote 74:9 quoted91:11,11 R R 5:1 race 88:3,7 radically 59:6 Raines 5:19 35:1 47:16,16 raise 81:9,12,15 raised19:4,4 Q 51:9 qualified48:8 raises 72:17 question 5:21,24 84:24 8:17 12:24 random64:12 18:14 27:3 28:4 rank 111:11 30:2,10,10 rare 25:6 33:17,18 35:18 ratification 43:2 42:14 45:4 ratify 22:10 50:16 51:7,16 rational 21:1 52:25,25 55:22 61:10,10 62:23 56:24 57:16 62:24 65:11,13 63:5 64:15 69:3 66:14 74:18,19 71:4,8 72:16 74:25,25 75:19 76:10,12 82:2 77:22 79:8 80:6 82:25 83:21 101:24 110:20 84:13 85:18 110:25 111:3,7 86:6 87:9,15 111:8,13,14 92:19 95:13 rationality 75:21 96:10,17 97:6,9 85:24 94:21 Alderson Reporting Company Official - Subject to Final Review 129 reach 5:18 17:13 19:21 53:17,17 reached22:25 26:1 42:25 43:2 reaches 21:25 read 31:15 33:16 reading 32:7 reaffirm 61:11 real 37:3 59:21 72:3 reality 90:22 92:5 realize 41:10 really 8:4 10:2 37:25 41:11 47:24 48:2,15 49:10 59:3 60:8 60:16 61:19 71:11 72:12,17 78:11 108:3 realm 71:19 rearing 93:6 reason 20:8 26:11 38:20 49:3 59:15 69:25 73:4,6,22 88:16 103:12 112:23 reasons 10:18 14:5 16:25 18:8 42:14 72:13 97:5 rebuttal 3:13 4:12 17:8 50:11 110:1,5 receive 80:24 received88:4 Recess 55:10 recognition 63:22 67:6 77:17 92:20 103:16 recognize 40:1 48:19 56:1 57:17,24 58:20 68:21 77:15 91:22 95:20 96:24 100:16 recognized21:13 48:20 58:12 63:20 67:10 72:2,2 97:1 100:8,10 113:8 recognizes 57:23 57:25 58:4,15 69:15 recognizing 70:23 84:4,5 87:16 reconciled91:24 Reconstruction 73:7 record 46:11 49:8 79:7 113:9 recusal 95:6 red72:19 redefinition 67:13 redress 5:14,16 6:2 14:10,10 redressability 15:20 redressable 13:17 Reed 111:5,5 referenda 108:10,13 referendum 113:11 referred95:3 108:24 reflect 74:10 reflected79:18 reflection 91:15 112:19,20,21 reflective 91:20 refund 6:10 8:3 regime 21:10 69:24 regimes 91:2 regulate 59:23 60:18 76:14,16 82:11 regulates 60:17 regulating 77:14 regulations 10:10 reinforce 13:12 relate 57:8 relation 70:6 relationship 85:9 85:14 relationships 85:8 106:24 109:7,8 relevant 32:13 64:15 78:23 83:2 relied105:16 relief 6:4,15 8:25 9:5 10:12,12 13:2,17 15:11 16:7 50:19 rely 15:10 remain 77:17 remaining 50:10 109:25 remarried58:23 remedy 11:15 14:3 15:5,14 remember60:22 render9:23 repeal 47:4,5 repealed17:3 38:7,7 47:2,9 113:13 repeat 111:2 replacing 77:1 report 74:9,14 74:15 75:2,5 90:22 91:5 92:2 105:14 109:5 represent 28:18 44:7 45:2 53:4 54:7 representative 33:11 Representatives 1:24 3:12 4:6 4:16 5:15 35:7 45:18 representing 28:9,13,17 29:5 29:12,14 43:21 107:12 represents 29:9 request 15:13 requested13:17 require 11:3 24:14 64:2 required30:20 requirement 14:4 15:8 64:6 requirements 13:16 15:3 64:24 98:22 99:24 requires 5:22 14:1 46:22 112:22 113:2 Res 43:8 44:20 44:25 45:4 reserve 17:7 80:8 reshape 15:15 residence 64:6 64:23 100:6,9 residency 101:2 resident 101:13 101:14 resist 38:3 111:25 resolution 28:21 45:1 52:25 53:3 53:9 103:1 resolved103:23 103:25 respect 15:13 16:3,24 19:18 20:4 26:14,16 Alderson Reporting Company 33:21 36:21 53:16 70:21 71:16 78:25 79:1,1 82:21 92:14,19 94:9 95:2,23 100:15 101:1 102:13 106:23 107:25 respectfully 102:14 respecting 88:19 respects 82:12 Respondent 1:22 2:4 3:10 4:4,11 4:14 35:5 55:16 94:17 110:2 response 91:15 responses 68:5 72:20 responsibilities 37:14 responsibility 21:24 25:8 38:21 55:4 responsive 83:17 restructure 15:24 rests 98:9 result 22:22 25:25 54:19 87:5 return 56:14 returning 96:16 reversal 5:16 reverse 16:12 58:12 review10:6,10 10:11 11:16 14:12 15:16 94:21 revolution 102:25 103:1 rid 99:6 right 7:14,15 24:23 26:10 Official - Subject to Final Review 130 27:5 28:10 31:25 32:6 36:5 36:10 43:14,20 43:20 45:8 47:15 50:23 56:22 62:22 65:8,20 66:2 67:20 68:1 69:9 70:22 81:2 83:19 84:7 87:14 95:18 113:3,5 rights 27:14,15 27:15 70:19 108:11,12 rigor 72:11 rise 69:13 risk 59:21 ROBERTA 2:3 4:10 94:16 ROBERTS 5:3 12:10,13 17:9 17:22 18:1,17 18:22 19:3,13 19:19 20:1 23:5 31:11,16 34:20 35:2 38:9 50:9 53:25 54:25 55:7,11 80:9 81:1,11,16,21 82:1 83:7,15,24 89:4,18 91:7 94:14 95:12,19 96:5,13,21 104:8 105:20 106:3 107:10 107:21 108:3,5 108:23 109:10 109:23 113:16 robust 8:3 role 14:9,9 26:16 32:20 42:22 43:1 47:7 48:13 48:14 112:8 Romer112:16 rooted102:17 rule 6:16 43:16 44:5,6,10 47:1 51:25 53:15 89:14 90:5 102:23,24 111:23 112:3 ruled6:18 rulemaking 44:3 rules 44:2 53:7 53:19 69:18 95:5 rulings 15:6 run 26:23,25 46:15 running 59:21 S S 3:1 4:1 5:1 sad 14:21 same-sex 55:20 56:1 63:1,2,20 66:23 67:7,10 70:1,23 81:5 85:8,12,13 89:20 91:1 95:20,21 96:24 97:1,24 99:9,9 100:7 sanctions 24:15 satisfy 19:8 88:23 92:24 savings 105:7,8 saw50:4 109:15 saying 7:8 10:2 12:1,21 13:4,6 22:7 26:17 31:22 34:12 43:4,23 47:8 51:11 53:3 59:11 63:8 65:21 67:22,22 71:12,18,18 77:8 78:11 82:14 96:22 98:14,17 101:11 103:3 106:14 says 7:2,7 10:15 11:4 17:18 20:17 29:22 30:18 33:20 36:12,25 54:13 61:6 64:1,8 65:3 67:12,16 74:15 75:2,5 81:3 97:23,23 98:15,19 111:15 Scalia 6:22 7:1 8:4,12,17 20:14 21:12 23:15,21 24:3,17,22,23 25:1,12 30:21 30:25 31:6 32:5 46:12 78:16,22 86:16,23 97:10 97:21 98:3,6,10 98:13,23 99:2 106:17,21 scenario 19:12 31:23 scenarios 26:11 scheme 47:7 76:13 SCHLAIN 1:6 Schmidt 10:8 scholars 22:5 scrutiny 64:15 64:16 65:10,11 74:21 75:23 79:10 84:10 87:12,25 88:6 88:23 92:25 101:16,22,23 108:2 109:22 sea 106:22,25 107:10,15 108:24 112:23 second 9:15 11:6 12:5 18:14 20:5 20:25 32:14 44:20 60:7 69:14 80:19 85:12 93:7 second-guessing 38:24 Section 11:23 67:16 68:10 70:6,6,7,9 76:24 77:3 80:19,19,21 82:22 83:11 84:24 88:25 89:1,3 90:5,13 91:21 93:9,13 94:11,13 102:8 103:15,16 Security 56:15 58:1,16 71:6 see 10:1 12:18 27:9 41:5,15 46:8 49:14,14 49:16 65:23,25 88:12 90:15 103:19 109:1 109:11 seeing 54:6,8 seek 5:16 9:5 11:16 47:5 seeking 9:4 10:11 13:2 seeks 9:6 10:5,9 seen 94:12 108:20 self-governance 75:7 Senate 33:6,21 37:23 39:21 43:12 45:8,10 45:19 46:1 53:14,18 Senate's 37:24 53:16 Senator 62:3 Alderson Reporting Company Senators 42:21 43:19 62:3 91:8 105:20,21 sends 72:18 sense 9:19 14:15 18:13 21:23 28:21 46:7,25 47:6 48:4,15 51:14 70:14 71:2 73:23,24 75:12 106:11 111:22 112:2 sentence 17:10 17:23 32:25 33:2 34:21 separate 15:18 42:24 separated101:6 separation 14:8 49:21 52:4,10 52:19 53:5 54:19 series 72:7 serve 49:21 50:5 served50:6 102:10 set 14:23 20:10 20:12 56:17 sets 69:11 sex 89:5 sexual 87:10,20 87:23 101:15 103:18 104:10 sexual-orienta... 101:21 sex-marriage 107:22 sham 16:19 shape 52:13 share 46:1 short 55:8 showing 60:2 shows 62:15 sick 56:16 71:5 side 16:9 31:10 Official - Subject to Final Review 131 42:9 45:9,9,12 45:14,20 78:3 102:21 107:13 108:7 109:2 sides 55:21 sign 22:12 60:8,9 signature 46:23 signed26:15 29:18 91:9 significant 5:19 54:19 significantly 109:8 signing 22:6,8,16 Sill 111:24 similar 6:15 100:4 101:19 109:15 similarities 8:18 simple 91:14 simply 21:4 23:1 42:4 56:3 57:3 89:2 112:10 single 38:5 singled105:4 sir 53:1 sit 52:22 55:1 situation 6:11 16:8 19:5 20:25 21:13 22:16 24:6 34:4 38:13 39:18 41:23 47:17,18 75:7 86:12 87:3 situations 21:2 32:11 57:2 58:17 87:3 six 64:7 skim 71:13 slaves 73:9,12 Smith 29:4 53:13 Social 56:15 58:1 58:16 71:6 societal 109:16 109:18 society 59:19 solace 80:24 soldier80:23 85:10 soldiers 85:7 sole 44:10 solely 56:7 94:25 101:7 103:18 110:16 Solicitor 1:19,25 9:7,10 23:21 24:4,19 35:25 35:25 95:13 96:15 110:7 111:14 112:18 solution 42:13 solve 48:17 somebody 24:15 111:19,23 113:3 somebody's 57:13 something's 73:23 somewhat 35:17 59:1 soon 89:4 sorry 17:24,24 30:24 sort 39:6 44:13 63:16 67:21 69:11,11 70:24 71:13 73:13 Sotomayor 6:8 26:22 31:25 32:3,7,10 33:10 34:1,6,10 35:16 35:22,23 36:4 43:10 44:1,6,12 44:15,22 50:20 51:25 58:3,7,11 63:4,8,11 67:19 68:5,12,20 69:1 69:5,8 87:8,14 88:2,6 92:9,15 104:9,14 sought 6:1 25:17 90:21 sound 38:19 sovereign 28:18 29:9,15 67:15 70:14 94:23 102:12 speak 18:25 special 40:22 42:2,4 54:9 66:13 67:23 68:21 79:3 specially 61:16 specific 42:18 59:14 78:11 89:24 specifically 43:12 44:19 47:19 73:8 sphere 71:7 spoke 52:17 spouse 56:16 60:2 80:23 85:11 95:9 100:6 101:10 spouses 73:9 100:20 SPYER 1:8 SRI 1:19 3:6 18:2 Srinivasan 1:19 3:6 18:1,2,4,21 18:25 19:7,16 19:22 20:3 21:12,21 22:15 23:11,20,23 24:5,21,24 25:2 25:11,14,22 26:8 27:1,20 28:11,15,18 29:7,22,25 30:4 30:24 31:4,14 31:19 32:2,6,9 32:12 33:13 34:3,8,14,22 stability 95:2 stake 37:15 38:4 82:19 stand 28:13,22 standard 85:24 87:11 standing 9:8 11:6 11:9,21,24 13:13,15 15:3 15:13 16:20 17:2 18:15 26:23 27:2,4 30:22 31:1 33:17,18,20 34:3,11,13 35:11 36:13,15 36:24 37:8 38:14 42:22,23 43:24 45:8,12 45:13,18,19 51:22 started77:19,20 starts 51:23 state 8:24 10:8,9 15:10 37:10 40:21 42:2 51:3 52:18 56:4,21 56:23 57:4,8,14 57:21 58:3,12 58:20 59:22 60:23 62:9,9,13 62:18 63:14,19 63:25 65:19 66:22 67:2,9,18 70:2,20,22,25 71:11,12 72:3 73:4,11,13 74:4 75:8 77:16,18 78:18,20 83:2 84:9,11 85:3,11 85:13,15 86:25 87:4 88:20 89:5 89:16,22 90:15 90:16 92:20 Alderson Reporting Company 93:6 95:22,25 96:7,25 97:25 98:21,22 99:19 100:3,5,7,9,9 100:10,19 101:24 105:9 110:9 111:16 112:7 113:7 stated17:14 statement 22:16 statements 22:8 States 1:1,3,14 1:23 3:11 4:5 4:15 5:5,13 6:6 6:15 7:23 8:21 13:22 16:10 17:1 18:7 20:18 27:24 28:19 29:3,5,9,10,15 35:6,20,24 49:18 55:17,24 56:12 57:23,24 59:7 61:1,7 62:6,7,11 63:17 64:1,6,22 65:3 66:18 67:24 68:3,23 69:6,7 69:17,20 70:8,8 70:9,14,16 74:1 75:10,10,14 76:25 78:5,19 78:20 79:21 82:7,11,23 84:4 84:9 92:11,17 93:10,23 94:9 94:23 96:3,23 98:9 99:4 100:15 102:12 102:25 103:20 103:21,23,25 104:17,23,24 104:25 105:12 106:19 107:1 107:23 110:3 110:12,15 Official - Subject to Final Review 132 111:15,21 statewide 113:11 State's 67:9 68:17 99:12 stating 11:15 status 28:1 33:9 40:11 56:23 58:24 63:21 statute 12:20 17:2,4,6,13,19 21:20 22:1,21 22:24 23:2,25 24:13,18,19 26:13 28:3 33:7 35:15 37:4 39:3 39:8,11,12,18 43:12,15 45:25 46:8,10,21 47:2 48:25 49:9,13 50:6 56:10 57:8 61:4 68:8 69:14 71:21 72:16,17 74:16,17,23 75:1,4,13 76:5 79:12,13,19 81:9 82:15 84:17 85:23 88:11,14,17 89:12,13 102:15 108:15 110:21 112:13 statutes 36:16 36:17 46:16 57:2 60:8 61:3 61:8 68:9 71:10 76:6,18,19,20 76:21 82:5,5 95:7 97:22,23 98:16 112:8 statute's 20:23 statutory 27:10 27:10 33:15 43:20 stay 39:3 52:11 69:19 70:23 71:2 86:3 103:2 103:3,5,15 stayed60:3 70:2 staying 103:15 step 43:23 104:3 stick 69:22 stop 9:14 36:2 59:7 104:5 stopping 103:16 stops 12:4 straight 102:5 106:9 107:20 109:9 strange 29:2 36:12 43:15 99:22 strict 88:6 strictly 109:19 strike 74:22 strongly 79:9 struck 92:7 structured99:18 99:19 subject 12:8 83:13 86:14,21 subjected108:10 submit 36:3 56:5 submitted 113:18,20 submitting 11:12 28:20 subscribe 27:21 subsequent 22:24 43:3 Substitutes 99:8 subtle 91:19 succeeds 6:4 suddenly 12:4 sue 6:3,14 sued8:20 suffered26:19 sufficient 9:22 32:16 46:20 77:22 89:2 sufficiently 14:1 85:19 suggest 30:22 31:21 56:6 72:8 72:8 79:9 92:3 suggested31:20 89:24 110:14 suggesting 41:21 68:20 74:19 suggests 72:5 74:22 suit 7:12 51:12 Summers 51:19 supercede 27:16 82:10 supervise 52:7 support 32:21 111:14 supported60:6 supporting 1:21 2:2 3:7 4:9 18:3 80:14 88:11 107:12,22 supports 68:6 suppose 22:5 42:19 46:14 59:16 61:14 75:17 81:1 100:5,8 107:10 supposed15:15 Supreme 1:1,14 12:22 17:17,18 sure 8:16 10:3 14:8 32:2,12,16 36:1 37:1 44:9 53:25 67:17 75:2 78:13 88:1 98:25 99:2 111:16 surely 11:25 82:24 99:9 surprised110:6 surprising 19:24 survive 101:17 surviving 101:10 suspect 68:14 72:11 87:18,19 87:20,21,22 88:3 sweeping 102:6 switch 45:23 switched6:19 7:23 75:20 system15:9 88:19,20 96:4 101:4 112:20 systems 88:19 taxpayer36:9 taxpayers 6:14 36:5 62:2 tell 28:22 33:2 43:10 50:17 108:6 113:13 tells 9:14 12:22 temporal 9:18 Tenth 110:11 term 59:3 60:12 68:7 76:4,18,25 77:13 79:16 T 97:22 99:15 T 3:1,1 4:1,1 108:1 109:21 take 10:12,16 112:4 23:7 31:16 terms 12:18 32:16 34:1 55:25 56:4,7,10 40:15 43:20 60:1 71:21 76:7 45:8 46:1,21 84:4 112:6,9 49:7 54:13,13 terrible 83:13 54:14 55:8,12 86:14 56:23 59:3 test 15:2 23:6 65:23 67:13,14 61:10 72:21 79:7 83:1 text 51:15 85:5 86:1 Thank 17:11,22 108:10 17:25 18:4 takes 47:2 65:1 34:22 35:2,8 99:7 50:8,9,13 55:6 take-care 21:24 55:7 80:9 94:7 25:8 94:14 109:23 talk 65:13 110:4 113:15 talking 8:12,13 113:16 15:9 24:13 THEA 1:8 25:20 33:15 their's 47:3 36:23 56:23 theory 87:18 75:22 thing 9:21 30:3 talks 56:22 46:12,14 50:3 targets 72:9 53:19 57:7 60:7 tax 6:10 58:18,18 61:8 63:25 64:9 58:19,23 59:13 79:5 103:6 61:15,25 62:8 things 15:19,24 64:4,9 65:3 19:22 27:7 70:2 71:8 100:2 37:17,20 41:9 taxes 95:10 64:14,16 65:5 100:20 70:23 71:1 75:3 Alderson Reporting Company Official - Subject to Final Review 133 75:5 78:11 79:2 97:16,16 think 8:18,25 9:2 9:25 10:1,4,19 11:10 12:23,24 13:11 14:4 16:12,18,21,23 16:25 17:7 20:23 21:9,24 23:7 24:8 25:8 27:5,14 28:25 29:7,11 30:5,10 31:9 32:4,5,9 32:14,20 33:5 34:24 36:22 37:7,12,19,19 37:21 39:15,18 39:19,25 40:9 41:5,6,24 42:17 43:6 44:12,14 45:4,14 46:24 47:15,23 48:8 48:15 49:25 50:21 51:5,20 52:2,13 53:5,22 54:11,15,17,18 56:19,21 57:11 58:1,5 59:2,11 59:12 60:20 61:23 62:15 64:25 65:8,16 65:18 66:6 72:12,13,21 75:17,18,22 76:2,2,11,11 77:20,23 78:21 81:7,8,12,14 81:22 82:9,15 83:18,20 84:6,8 84:20,23,25 86:23 87:9,9,17 88:12,12 89:18 90:22 91:12,21 92:19,23 95:14 95:16,25 96:6 96:10 97:5,6,14 97:18 100:15 101:20 102:3 102:19 103:2,9 104:15,19,20 105:1,23,23 106:6,10,11,15 106:23 107:15 108:17,19,21 109:5,9,14,16 109:19 111:13 112:11 thinking 60:23 67:2 79:11,25 112:11 thinks 11:2,22 22:7,11 23:17 23:19 24:20 52:12 third 85:14 112:16 thought 12:11,13 34:22 58:11 59:22 70:5 78:17 82:19 84:9 105:15 thousands 94:22 three 28:9 37:5,5 52:16,16 79:10 85:7 86:24 110:5 111:2 112:12 three-prong 15:2 tied49:4 tier111:8 tiers 111:3 till 12:22 time 6:20 17:7 21:8,9 26:23,25 30:7 40:13 46:2 78:25 80:8 89:8 91:21 96:17 102:11 104:4,6 105:18 107:8 108:22 112:16 timeout 67:13 times 16:1 37:5,6 105:24 106:4 106:11 112:12 112:15 title 102:15 today 9:2 28:14 81:3 87:10 100:17 101:21 106:1,10,20 108:19 109:6 109:20 111:2 111:18 told 9:15 37:6 82:20 84:10 total 40:7 totally 19:19 20:2,3,7 56:12 touch 71:5 tough 41:14 traditional 38:21 55:25 61:5,9,19 67:24 68:22 69:23 74:4 79:17 82:10 89:9 90:5 103:6 traditionally 54:23 transfer111:25 transferred 111:24 treasury 14:17 treat 13:25 15:2 62:12,25 63:2 70:12 86:9 101:12 treated57:4 58:25 86:5,24 94:24 95:1,4,8 treating 62:20 63:5 66:10,15 80:6 104:2 treatment 57:20 57:21,22 61:16 62:1,8,18,20 63:17,17 65:19 91:25 treatment's 65:21 treats 57:18 63:14 trial 6:24 8:1 tribunal 19:6 tried79:20,21 troubling 15:17 22:14 51:18 true 20:12 25:2 57:1 58:5 60:19 75:15 78:22 87:2 88:9 105:24 trust 11:1 trustee 10:25 11:10,13,20 12:7 try 50:14 59:7 trying 28:16 42:20 60:14 62:1,1 65:16 67:25 75:3,6 83:17 109:1,11 turn 12:25 18:11 27:2,2 55:8 88:10 Turner22:17,17 two 7:17 8:21 15:19 16:24 18:9 19:22 20:19 32:12,21 34:14 37:17,20 44:2 47:2 52:16 56:13 57:14 59:24 62:20 63:17 64:14 68:4,4 69:11 71:12 78:14 80:6,18 85:17 86:3 88:18,25 94:12 100:15 108:12 112:14 Alderson Reporting Company two-house 31:3 type 32:19 68:2 typically 16:5 U uncertain 12:7 unconstitutional 7:9 9:13 10:19 11:22 12:18 17:5 20:23 21:5 21:5,15,18 22:1 22:7,12,21 23:2 23:17,19 24:2 24:20 27:25 28:4 30:17 35:15 36:14,20 39:9,12 43:5 48:4,7 82:4,6 99:25 101:6,12 unconstitution... 8:2 20:20 undeniably 83:12 underlying 68:8 69:13 79:18 undermine 102:12 undermining 103:19,21 understand 11:8 11:19 14:7 40:10 48:2 70:4 73:23 78:16 83:15 97:10 102:21 103:11 106:12,13 109:10 understandable 41:20 understanding 9:9 58:9,14 105:25 106:7,8 106:10,24 107:17 109:6 109:12,17,18 understandings Official - Subject to Final Review 134 108:24 understood 56:25 89:8 undertake 29:20 undertook 8:10 undifferentiated 102:7 unelected75:7 unfairness 62:20 unheard 44:13 unified61:21 uniform 62:1,14 62:18 65:18,21 77:24 79:15 82:12 88:15,19 102:22,23 110:16 112:2 uniformity 60:17 65:23 71:25 72:3,6,13 74:2 77:21 78:12 79:5,14 88:17 89:3 90:3,4,24 105:6 111:17 uniformly 72:1 Union 73:9 unions 56:2 107:2 113:8 unique 33:22 34:16 35:17,20 37:14 110:7,13 110:23 uniquely 33:24 57:12 111:21 unit 61:18,22 United1:1,3,14 1:23 3:11 4:5 4:15 5:4,13 6:5 6:15 7:23 13:22 16:9 17:1 18:7 20:18 27:24 28:19 29:3,4,8 29:8,10,15 35:6 35:19,23 49:18 55:17 61:1 65:3 76:25 79:21 82:7,23 110:3 110:12 111:15 units 77:2 universally 92:3 University 10:7 10:9 unlegislative 48:24 unmarried93:10 93:10,14 94:24 95:1,4,8 104:2 unplanned93:11 unprecedented 19:20 20:2,4 unthinking 91:20 unusual 13:10 19:24 20:2,7,7 72:22 73:20 upheld 6:18 14:17 18:19,23 85:23 urge 5:20 53:19 use 82:9 88:7 97:22 98:18 99:14 usual 14:23 usually 46:23 U.S 9:3 17:5 50:17 99:7 112:4 U.S.C 23:23 25:3 33:4 variety 60:4 various 77:8 vast 89:15 verge 75:8 Verrilli 1:25 4:8 80:11,12,15 81:8,14,17,24 82:2,14,21 83:4 83:10,20 84:1 84:20 85:18 86:6,20 87:1,8 87:13,24 88:5,9 89:10,21 91:10 92:12,18 93:2 94:5 versus 40:13 veto 22:19,19 31:3 33:24 34:18 36:11,14 37:15,16,23 38:1 VICKI 1:17 3:3 3:14 5:8 50:11 view12:20 22:13 23:8,10,16 24:20 45:7 49:20 52:9 82:23 91:7 viewing 38:11 views 55:21 vindicate 40:19 42:6 47:7 54:8 violate 86:8 violates 86:8 V violation 82:7 v 1:5 5:5,19 6:18 84:23 92:10 29:3 35:1 42:15 93:22 42:16 51:20 visit 85:10 111:5 visited86:13,18 vacate 39:1,2 vis-?-vis 92:16 vacuum 66:21 vote 44:19,23,24 valid 84:15,16,17 47:20 105:22 90:15 voted42:7 91:8 validly 98:21 113:10 values 108:25 voters 75:14 78:6,18 votes 106:5 W wade 69:12 wait 12:21 47:8 67:12 wake 73:7 112:16 want 5:18 10:3 21:7 26:6 34:4 34:6 46:5 49:14 49:14 50:17 51:17 62:10,25 64:17 70:17 73:18 78:4,7,10 78:10,13,18,19 83:21 91:15 111:23 112:19 wanted7:24 17:13 38:19 62:12 70:8 73:8 99:21 wants 46:1,8 47:4 59:15 62:19 66:25 85:10 110:15 112:18 War 73:7 Washington 1:10 1:20,22 2:1 wasn't 8:23 19:3 19:4 31:4,13,18 32:3 51:8,10 way 9:9 25:13 30:9 38:11,15 38:24 43:4,25 51:14 53:23 57:17 59:8,9 60:2,13,25 62:13 63:1,10 63:13,14 65:8 69:18,19,19 70:6 73:21 77:3 77:4 80:7 81:2 Alderson Reporting Company 83:8 84:2 85:21 87:15 95:15 97:4 99:17 103:5 108:12 110:17 113:12 ways 30:16 51:6 74:4 weaker108:22 Wednesday 1:11 weird 77:24 went 83:8 95:15 weren't 50:5 105:10 West 111:24 we'll 12:21 15:23 26:5 55:8 we're 10:3 15:8 21:3,6,11 24:13 25:20 28:20 30:15,16,19 66:17,18 67:16 69:22,23 70:3 70:16 74:24 75:21 95:20 we've 57:10 69:22 75:3,20 102:3 103:3 105:6 whiplash49:24 white 88:8 91:4 willing 14:19 21:6 Windsor 1:6 2:4 4:11 5:5,25 7:21 16:10 62:19 63:21 94:17 wisdom91:12 wish51:11 withheld 6:10,11 woman102:23 women67:23 93:10,11,14 108:22 wonder51:10 Official - Subject to Final Review 135 wondering 21:3 word 26:3 61:12 89:13 99:7,13 work 98:2,4 worked10:17 works 58:24 98:4 world 21:3,7 49:21 53:11 69:16 72:10 worried8:23 67:4 wouldn't 9:22 10:14 20:9 22:2 39:20 42:5 45:12,21 64:11 64:11,12 77:6 81:8,12 89:11 93:13 98:2 wrong 105:17,19 wrought 105:8 X x 1:2,9 Y yeah 7:7,9 21:4 26:6 84:20 year 16:1 64:7,9 years 39:23 95:11 99:19 101:1 102:24 108:14 110:14 yesterday 84:10 87:10 92:13,19 92:23 93:20 101:20 York 2:3,3 62:21 62:22 63:1,19 63:20 100:7,17 101:14 103:20 111:19 York's 63:9,22 $ $300,000 14:16 14:20,20,22,22 $363,000 95:9 $365,000 15:7 1 1,100 59:11,18 60:1,8 99:22 10 110:14 10:18 1:15 5:2 110 4:16 1100 71:10 12 39:23 40:7 42:1 12-307 1:4 5:4 12:13 113:19 1252 17:3 51:7 51:11 1254 33:4,16 17 64:3,3 18 3:7 64:2 1948 62:5 1990 108:17 1996 59:6 60:15 60:22 61:6 66:21,22 73:23 74:3,7,9,13 105:16,25 106:22 107:6 108:25 2 2 11:23 67:16 70:6,7 113:7 2.8 44:5,10 20 42:21 65:5 200 99:19 2004 79:22 2007 63:23 2011 63:20 2013 1:11 27 1:11 28 23:23 25:3 33:4 287 50:24 3 3 70:6,9 76:24 77:3 80:19,19 80:21 82:22 83:11 84:24 88:25 89:1,3 90:5,13 91:21 93:9,13 94:11 94:13 102:8 103:15,16 109:25 30 39:23 65:2,5 32 50:25 35 3:12 38 91:5 940 32:14,14 4 4 50:10 58:1 437 49:16 44 95:11 5 5 3:4 43:8 44:20 44:25 45:4 50 3:15 111:21 51st 84:9 85:3 111:16 530(d) 23:23 25:3 54 50:25 55 4:6 8 8 68:10 107:4 80 4:9 84 91:8 105:20 105:21 9 9 106:20,21 107:4 110:15 929 27:22 931 27:22 939 31:7 32:13 94 4:11 Alderson Reporting Company