My set-up is from this Washington Post story on the oral arguments:
Paul D. Clement, representing Republican House leaders who are defending the law, said Congress was not discriminating but simply staying out of experiments by the states on same-sex marriage.Remember this: DOMA denied the recognition of same-sex marriage under more than 1,000 Federal laws.
The law does not punish states that allow such unions, he said, but simply lets the federal government decide how it wants to allocate its benefits.
Clement is arguing that if states want to experiment with the terms of marriage, the Federal government should not be required to grant recognition to what they did.
Now let me take you back to 1967, to just before Loving v. Virginia overturned bans on interracial marriage. 16 states had such bans, and some, like Virginia, attempted to criminalize an interracial couple from living together as man and wife even though they ha been legally married in another jurisdiction.
What was NOT in question, for Robert and Mildred Loving, or for any other interracial couple at the time, before the Supreme Court decided in their favor, was that in the eyes of the Federal Government and all applicable laws and procedures, their marriage was recognized, for tax or any other purpose.
I have not read the transcript of the oral arguments, but i have to wonder what Paul Clement was not challenged with this, why the Justices having any doubt the constitutionality of that section of DOMA did not have this put on the record, publicly.
In fact, why was Clement not challenged to cite a single example of where prior to DOMA a marriage granted by a state was NOT recognized by the Federal government?
UPDATE to clarify - what i wanted is to have Clement provide an example of a statutory bar to recognizing a marriage legally contracted by a state. Justice Kagan made a general statement. I wanted the specific citation of pre-Loving on interracial followed by a challenge to Clement. Having that on the record would really have put some of the wavering Justices on the spot.
I am not a lawyer.
But to me this seems basic.
As Rachel used to say, anyone want to talk me down?