Sunday, December 8, 2013
By ROBERT BARNES The Washington Post
(Continued from page 1)
Gabriela Fore, 6, of Upper Darby Pa., holds a sign with her moms in front of the Supreme Court in Washington on Wednesday as the court heard arguments on the constitutionality of the Defense of Marriage Act.
With the Capitol in the background, supporters of gay marriage carry signs in front of the Supreme Court on Wednesday, before the court began hearing arguments on a constitutional challenge to the law that prevents legally married gay Americans from collecting federal benefits generally available to straight married couples.
The liberal justices sharply questioned former George W. Bush administration solicitor general Paul Clement, who is representing House Republican leaders who are defending DOMA.
He said the law, passed by overwhelming majorities in each chamber of Congress and signed by President Bill Clinton, was a reaction to the prospect that Hawaiian courts were on the verge of approving same-sex marriage.
Congress feared that "by the operation of one state's state judiciary, same-sex marriage is basically going to be recognized throughout the country," Clement said. "And what Congress says is: 'Wait a minute. Let's take a timeout here. This is a redefinition of an age-old institution.'"
Clement said Congress was within its powers to define marriage for the benefits it bestows and to strive for "uniformity" nationwide by limiting those benefits to heterosexual couples.
He was strongly challenged by Justice Elena Kagan. She said that when Congress "targets a group that is not everybody's favorite group in the world," the court has an obligation to examine, "with some rigor, to say, 'Do we really think that Congress was doing this for uniformity reasons or do we think that Congress' judgment was infected by dislike, by fear, by animus and so forth?'"
She caused a stir in the courtroom, which appeared to be mostly filled with supporters of same-sex marriage, when she quoted language from a House committee's analysis of the law: "Congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality."
Clement replied: "Does the House report say that? Of course, the House report says that." But he added that the court has never struck a statute "just because a couple of legislators may have had an improper motive."