AMY GOODMAN: Two days of historic Supreme Court arguments on the legality of same-sex marriage have concluded. On Wednesday, the Supreme Court considered the constitutionality of the Defense of Marriage Act, which denies federal benefits to legally married same-sex couples. DOMA was signed into law by President Bill Clinton, 1996. The law specified the word “marriage” means only a legal union between one man and one woman for the purposes of, quote, “any act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States,” end-quote.

The lead plaintiff in the case is an 83-year-old lesbian named Edith Windsor. She sued the federal government after she was forced to pay additional estate taxes because it did not recognize her marriage to a woman, Thea Spyer. Before we discuss Wednesday’s hearing, we want to begin with the story of the women behind the case. They are the subjects of the documentary Edie & Thea: A Very Long Engagement.

THEA SPYER: She didn’t just grab. She grabbed her between—

EDIE WINDSOR: I grabbed her head into my breast that night.

THEA SPYER: My head, yeah. I forgot.

EDIE WINDSOR: And we made love all afternoon and went dancing at night.

THEA SPYER: That was it.

EDIE WINDSOR: And that was the beginning.

When was it? About 1962. I suddenly couldn’t take it anymore. And I called an old friend of mine, a very good friend, and I said, “If you know where the lesbians go, please take me.” And somebody brought Thea over and introduced her, and we ended up dancing.

THEA SPYER: And we immediately just fit. Our bodies fit. Well, I mean, we’ve had 42 years.

EDIE WINDSOR: Yeah.

THEA SPYER: And then when I had this bad prognosis, that essentially it was so bad, let me say it, that I had about another year to live and that was it.

EDIE WINDSOR: Having gotten the bad prognosis, she woke up the next morning and said to me, “Do you still want to get married?” And I said, “Yes.” She said, “So do I.”

THEA SPYER: As the years go by, that feeling of attraction stays the same. Each one of us, in fact, looks different from how we looked when we met. But if I look at Edie now, she looks exactly the same to me, exactly the same. And she’ll say the same thing the other way.

JUSTICE HARVEY BROWNSTONE: I, Thea Spyer.

THEA SPYER: I, Thea Spyer, choose you, Edie Windsor, to be my lawful wedded spouse.

EDIE WINDSOR: For richer and for poorer.

JUSTICE HARVEY BROWNSTONE: In sickness and in health.

EDIE WINDSOR: In sickness and in health.

JUSTICE HARVEY BROWNSTONE: Until death do us part.

EDIE WINDSOR: Until death do us part.

AMY GOODMAN: That’s a clip from the trailer, Edie & Thea: A Very Long Engagement, a 2009 documentary. Thea Spyer passed away in 2009. Her widow, Edith Windsor, sued the federal government after she was forced to pay additional estate taxes because it did not recognize their marriage. This is Edie speaking on Wednesday just after the Supreme Court heard her case.

EDIE WINDSOR: Today is like a spectacular event for me. I mean, it’s a lifetime kind of event. And I know that the spirit of my late spouse, Thea Spyer, OK, is right here watching and listening and would be very proud and happy of where we’ve come to. Thank you all.

AMY GOODMAN: Also outside the court on Wednesday, one of Edie Windsor’s lawyers, James Essex of the ACLU, spoke about the potential impact of the case.

JAMES ESSEX: There are 130,000 married same-sex couples in the United States today. And what DOMA says is that it requires the federal government to treat those 130,000 married same-sex couples as unmarried in each of those 1,100 different federal contexts. So, that’s what caused what happened to Edie to happen, that she was treated as unmarried despite her 44 years together with the woman who became her spouse. So Edie and Thea spent four decades together, in good times and in bad, in sickness and in health, just like any other married couple. And for the federal government to pretend that their marriage didn’t exist is unfair, and it’s un-American, and it’s unconstitutional.

AMY GOODMAN: That was James Essex, lawyer and director of the ACLU’s LGBT Project. The lawyer who defended DOMA before the Supreme Court, Paul Clement, did not speak with reporters after the case was heard. During Wednesday’s arguments, a majority of the justices seemed ready to consider striking down the law.

When we come back from break, we’ll talk more about the hearing. We’ll be joined by Marc Solomon, who was at the Supreme Court to hear the arguments, the national campaign director of Freedom to Marry, one of the leading campaigns to overturn DOMA. We’ll be back in a minute.

[break]

AMY GOODMAN: Let’s turn to Wednesday’s Supreme Court hearing, with Justice Elena Kagan’s questioning of Paul Clement, the attorney defending DOMA, the Defense of Marriage Act, which was passed by Congress in 1996.

JUSTICE ELENA KAGAN: Well, is 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?

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’s never been your approach, especially under rational basis or even rational basis plus, if that’s what you’re suggesting. This court, even when it’s applying more heightened scrutiny—the O’Brien case, we cite—it suggests, look, we’re not going to strike down a statute just because a couple of legislatures may have had an improper motive; we’re going to look, and under rational basis, we look—is there any rational basis for the statute?

AMY GOODMAN: That was attorney Paul Clement responding to Supreme Court Justice Elena Kagan’s questions.

Marc Solomon is in the studio with us here in New York. He was at the Supreme Court to hear the arguments Wednesday in the challenge to the constitutionality of the Defense of Marriage Act, national campaign director of Freedom to Marry, one of the leading campaigns to overturn DOMA. Talk about the significance of that interaction and what the court was like yesterday, Marc.

MARC SOLOMON: Sure. That interaction, in particular, was really Justice Kagan highlighting the fact that this law was—you know, was created out of discrimination. And it was really the first time the federal government has created its own sort of definition of marriage to exclude gay people because they were really afraid—Congress was afraid of what was—you know, of progress on the marriage front in Hawaii.

AMY GOODMAN: And talk about this document she cited.

MARC SOLOMON: Yeah, it was a House report that accompanies legislation. There’s a report, and it really talks about the purpose of the legislation. And it talked—you know, it was very clear in talking about moral disapproval of homosexuality. So it’s pretty hard to get away from that.

AMY GOODMAN: There were gasps in the room as she asked the question?

MARC SOLOMON: Yeah. It was a reminder of—you know, of where this law comes from and what its purpose is. And it’s simply to deny loving and committed same-sex couples who are married the federal government’s, you know, huge panoply of protections.

AMY GOODMAN: During Wednesday’s argument, Justice Ruth Bader Ginsburg said DOMA effectively creates two kinds of marriage.

JUSTICE RUTH BADER GINSBURG: [They’re not a] question of additional benefits. I mean, they touch every aspect of life—your partner is sick, Social Security. I mean, it’s pervasive. It’s not as though, well, there’s this little federal sphere and it’s only a tax question. It’s, as Justice Kennedy said, 1,100 statutes, and it affects every area of life. And so, you would be really diminishing what the state has said is marriage. You’re saying, no, state—they have two kinds of marriages: the full marriage and then the sort of skim-milk marriage.

AMY GOODMAN: Justice Ruth Bader Ginsburg, “skim-milk marriage.” Marc?

MARC SOLOMON: Yeah, I actually—when I was getting my bagel and coffee this morning, I asked for whole milk, so—for the first time in a long time. I think, you know, what she was talking about is that in America we don’t have second-class citizens, nor should we have second-class marriages. And that’s exactly what the so-called Defense of Marriage Act does.

AMY GOODMAN: Supreme Court Justice Anthony Kennedy is seen as the possible swing vote in the case. During Wednesday’s hearing, he expressed skepticism about the legality of DOMA. This is Kennedy questioning Paul Clement, the attorney defending the Defense of Marriage Act.

JUSTICE ANTHONY KENNEDY: It applies to over, what, 1,100 federal laws, I think we were saying. So it’s not—I think there’s quite a bit to your argument that if it’s a tax deduction case, which is specific, whether or not—if Congress has the power, it can exercise it for the reason that it wants, that it likes some marriages, doesn’t like. I suppose it can do that. But when it has 1,100 laws, 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.

PAUL CLEMENT: Well, Justice Kennedy, two points. First of all, the very fact that there are 1,100 provisions of federal law that define the terms “marriage” and “spouse” goes a long way to showing that federal law has not just stayed completely out of these issues. It’s gotten involved in them in a variety of contexts where there’s an independent federal power that supported that.

AMY GOODMAN: There you have Paul Clement responding to Supreme Court Justice Anthony Kennedy. Marc Solomon?

MARC SOLOMON: Yeah, I think Justice Kennedy’s position is that marriage has always been in the province of the states, that states determine what a marriage is and what it isn’t, and the federal government simply recognizes—for the purpose of federal treatments and respect, recognizes marriages performed in the state, with the exception of marriages of gay couples. So—and they were talking about how important all these different protections, federal protections, are, from Edie Windsor having to pay $363,000 in estate taxes when her wife died—if her wife’s name—if her partner’s name had been Theo instead of Thea, she would have had to pay no taxes—to, you know, on and on. There are just these really difficult stories of married couples, married in their state of New York or Iowa or now Washington state, you know, and on and on, who are just treated as legal strangers by the federal government.

AMY GOODMAN: I want to play another excerpt of the Supreme Court’s oral arguments Wednesday, when Justice Elena Kagan focused on the underlying motives of Congress in passing the Defense of Marriage Act in 1996.

JUSTICE ELENA KAGAN: 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 suggests the following, which suggests 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?” And I guess the question that this statute raises, this statute that does something that’s really never been done before, is whether that sends up a pretty good red flag that that’s what was going on.

AMY GOODMAN: “Red flag,” Justice Elena Kagan. Marc Solomon?

MARC SOLOMON: Sure. I think she’s exactly right. The arguments that our opponents were making is that the only reason or the primary reason they passed this so-called Defense of Marriage Act was to have some sort of uniform definition federally and not to discriminate against gay and lesbian couples. And she’s saying, “Look, why did you pick this category out of all the different categories you could have chosen? It brings—you know, it raises a giant red flag that, you know, the reason you did it is because, you know, you have a problem with gay people, not because you want one standard.” And, in fact, the consistent—the only real consistent standard is to say we will respect marriages performed in the states, which is what they’ve—what they had always done in the past.

AMY GOODMAN: Now, the reason we’re playing so many clips is it’s unusual, actually, to have the audio clips of the Supreme Court—of the Supreme Court oral arguments so quickly. And, Marc Solomon, your group had something to do with that.

MARC SOLOMON: Yeah, we, along with some of our coalition partners, asked, because we know how—you know, how much interest there is, and that the LGBT community—and America, really—deserves to know what’s going on. And we also know that the more people hear the arguments of our side and our opponents’, we do better, we win. So, we wanted the information out as quickly as possible.

AMY GOODMAN: So, talk about the climate in the court. And was there anything that particularly stood out, that surprised you? Talk about the—everyone talking about the swing voter, Justice Kennedy, and where he stood on this, compared to where he stood the day before on Prop 8.

MARC SOLOMON: Well, sure. I mean, my caveat to that is that you never really know what’s going on based on these questionings. Sometimes people are challenging, you know, being the devil’s advocate for the sake of just processing different arguments.

That having been said, people were certainly listening carefully to what Justice Kennedy was saying. And, you know, he certainly is uncomfortable with this—with this law. The way he talked about his discomfort was it’s intrusion into the historic powers of the state to deal with marriage and family law. But, you know, there was—definitely people were watching very carefully when he—you know, when he spoke up.

I think the other thing that was really fascinating to me and great for this cause is that our opponents didn’t have—you know, didn’t argue in any way, shape or form about, you know, defending why gay people should be excluded from protections or even from marriage. They didn’t talk about these—you know, the different bugaboos they’ve used in the past. It was uniformity, uniformity, uniformity, which you can—you know, you can sort of carve a giant hole through very easily. But there was no sort of anti-gay, explicitly anti-gay arguments about, you know, parenting, etc., etc.

AMY GOODMAN: Talk more about this idea of legal strangers.

MARC SOLOMON: Well, legal strangers means that—you know, we saw the clip of Edie & Thea. They were married. They were—you know, they were married in their hearts for 40 years. Then they got married legally in Canada, and it was recognized by the state of New York. But to the federal government, they are treated as legal strangers. And so, what that means is—I’ll give a very clear example. We have a couple, a lesbian couple, one of whom is a serviceperson. She was killed in Afghanistan. And the military didn’t notify her wife first; they notified her biological family, because they consider her spouse as a legal stranger. And that’s just not American. It really isn’t. And it’s not the way the federal government should be doing things. It should be respecting the marriages performed in the states and respecting their relationships.