Constitutional Law, Elena Kagan, Federal Government, Paul Clement, SCOTUS, Sonia Sotomayor, Supreme Court

The Big Week at SCOTUS: What Stands Out Most

Looking back, the part of last week’s arguments at the U.S. Supreme Court that stands out most for me is the last hour (DOMA merits) — a fitting finale to two days of historic argument on same-sex marriage.

The way things unfolded, the last hour is why we all came. It is why people slept on the sidewalk for days. It is why Americans tuned in and logged on for updates. It is why the attorneys signed up to argue.

We were there to discuss the future of marriage in this country, how different people see it, and where state and federal governments fit in.

The Prop 8 argument went to those core issues the day before, but in fits and starts. A muddy hybrid of standing and merits.

The last hour of DOMA went there and stayed there. Merits were the only thing on the menu, and we ate it up….

Here are some of the memorable moments from different parts of the argument (other “money quotes” are linked here):

Paul Clement
“Does the House Report say that? Of course, the House Report says that. And if that’s enough to invalidate the statute, then you should invalidate the statute. But that has never been your approach, especially under rational basis….” (responding to Justice Elena Kagan’s quotation of the DOMA House Report expressing “moral disapproval of homosexuality”).

Justice Sonia Sotomayor
“[W]hat gives the Federal Government the right to be concerned at all at what the definition of marriage is?”

Paul Clement
“You have to persuade somebody you’re right. You don’t label them a bigot. You don’t label them as motivated by animus. You persuade them you are right. That’s going on across the country….And the Federal Congress is not immune. They repealed ‘Don’t Ask, Don’t Tell.’ Allow the democratic process to continue.”

Solicitor General Donald Verrilli
“I think it’s time for the Court to recognize that this discrimination, excluding lawfully married [same-sex] couples from Federal benefits, cannot be reconciled with our fundamental commitment to equal treatment under law.”

This type of discussion — that’s what I’m talking about. And that’s what America is talking about.

So, what is it all going to mean? Only heaven and the justices know (and those lucky clerks!).

If the Court reaches the merits, DOMA looks to be going down. There could be a split baby, though, with Prop 8 getting a narrow ruling or even being upheld.

DOMA has something for both liberals and conservatives to hate: discrimination against gay people and, at the same time, disrespect for states, i.e., ignoring their definitions of marriage, traditionally a state bailiwick.

Prop 8 involves discrimination, but the state concern is flipped. Rejecting Prop 8 would be a federal stamp-out of a state marriage definition.

Can the Court trumpet states’ marriage role in one case and scuttle it in another? That’s a tougher sell to the full Court.

Equal Protection could harmonize the two cases, though, if Justice Anthony Kennedy hears that tune.

Attorney Michelle Olsen writes for the National Law Journal’s Supreme Court section and publishes Appellate Daily, a Twitter feed and blog about federal appeals. She can be reached at

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