Highlights from the hearing
On the purpose of federal marriage benefits:
JUSTICE ALITO: Suppose we look just at the estate tax provision that's at issue in this case, which provides specially favorable treatment to a married couple, as opposed to any other individual or economic unit. What was the purpose of that? Was the purpose of that really to foster traditional marriage, or was Congress just looking for a convenient category to capture households that function as a unified economic unit?
On the president's responsibility to enforce the law:
CHIEF JUSTICE ROBERTS: I would have thought your answer would be that the Executive's obligation to execute the law includes the obligation to execute the law consistent with the Constitution. And if he has made a determination that executing the law by enforcing the terms is unconstitutional, I don't see why he doesn't have the courage of his convictions and execute not only the statute, but do it consistent with his view of the Constitution, rather than saying, oh, we'll wait till the Supreme Court tells us we have no choice.
On states' power vs. federal power:
JUSTICE KENNEDY: Well, [DOMA] applies to over, what, 1,100 federal laws, I think we are saying....Which, in our society, means that the federal government is intertwined with the citizens' day-to-day life, you are at real risk of running in conflict with what has always been thought to be the essence of the State police power, which is to regulate marriage, divorce, custody.
On DOMA creating two classes of marriage:
JUSTICE GINSBERG: It's, as Justice Kennedy said, 1,100 statues, and it affects every area of life. And so he was really diminishing what the State has said is marriage. You're saying, no, State said two kinds of marriage; the full marriage, and then this sort of skim milk marriage.
On the Justice Department not defending the law:
CHIEF JUSTICE ROBERTS: No, it's not just -- it's not unusual. It's totally unprecedented.
On 'new world' in which the Justice Department doesn't defend the law:
JUSTICE SCALIA: When I was at the Office of Legal Counsel, there was an opinion...which says that the Attorney General will defend the laws of the United States, except in two circumstances:
Number one, where the basis for the alleged unconstitutionality has to do with presidential powers....The second situation is where no possible rational argument could be made in defense of it.
Now, neither of those situations exists here. And I'm wondering if we're living in this new world where the Attorney General can simply decide, yeah, it's unconstitutional, but it's not so unconstitutional that I'm not willing to enforce it, if we're in this new world, I -- I don't want these cases like this to come before this Court all the time.
And I think they will come all the time if that's -- if that's -- if that's the new regime in the Justice Department that we're dealing with.