There was one rather remarkable exchange during the oral argument on the DOMA case between Justice Kagan and Paul Clement, representing the House Republicans in defending the law. Clement was arguing that Congress had a firm rational basis for passing the law, but Kagan quoted the House report on the passage of the bill:
JUSTICE KAGAN: Mr. Clement, for the most part and historically, the only uniformity that the Federal Government has pursued is that it’s uniformly recognized the marriages that are recognized by the State. So, this was a real difference in the uniformity that the Federal Government was pursuing. And it suggests that maybe something — maybe Congress had something different in mind than uniformity.
So we have a whole series of cases which suggest the following: Which suggest that when Congress targets a group that is not everybody’s favorite group in the world, that we look at those cases with some - even if they’re not suspect — with some rigor to say, do we really think that Congress was doing this for uniformity reasons, or do we think that Congress’s judgment was infected by dislike, by fear, by animus, and so forth? … What happened in 1996 — and I’m going to quote from the House Report here — is that “Congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality.” Is that what happened in 1996?
MR. 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 or even rational basis-plus, if that is what you are suggesting.
Clement knew he was busted, I suspect. As one of the best appellate advocates in the country, he handled it smoothly, but his argument was clearly wrong. If you’re going to argue that Congress had a rational basis for passing the law and was not merely motivated by prejudice against gay people, that quote is simply devastating.
Kagan also shredded Clement’s argument that Congress was only trying to make sure there was uniformity in who was covered under federal law. She is right that there has never been such uniformity before. Some states allow you to marry at age 16, some earlier if you have the permission of the parents. Some states allow you to marry first cousins, some don’t. But there are no provisions in federal law that says there is federal recognition of a marriage only after age 16 or only for those who are not first cousins. In every other case, the federal government recognizes all legal marriages performed in all the states, period. Only same-sex marriages are singled out, and they were singled out in order to “express moral disapproval of homosexuality.” Game, set, match.