Justice Elena Kagan Takes the Spotlight on DOMA

Justice Elena Kagan Takes the Spotlight on DOMA

Justice Elena Kagan Takes the Spotlight on DOMA

For about 68 minutes the debate over the repeal of the DOMA continued.  Then the junior member of the court had her opportunity to invoke the truth and common sense.

Paul Clement, the attorney representing the House GOP, suggested that when DOMA was passed “in 1996, something was happening” — states were considering whether to upset the “traditional” view of marriage and include gay and lesbian couples.

“In a sense,” said Clement, “it was forcing Congress to choose between its historic practice of deferring to the states and its historic practice of preferring uniformity.”

There was an audible pause until Justice Kagan spoke.

“I’m going to quote from the House Report here,” said Kagan firmly, referring to the official recommendation from various congressional committees on the law’s intent. “That ‘Congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality.’ Is that what happened in 1996?”

As the gallery gasped, she continued.

“When Congress targets a group that is not everybody’s favorite group in the world, that we look at those cases — 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’ judgment was infected by dislike, by fear, by animus?” she asked. “And whether that sends up a pretty good red flag that that’s what was going on.”

Although the more liberal of the Justices were somewhat timid yesterday during the consideration of California’s proposition 8, they displayed a new attitude today.

Chief Justice John Roberts and ultra-conservative Antonin Scalia were subdued after the challenge of congressional influence.

Roberta Kaplan, attorney for key plaintiff Edith Windsor, made somewhat of a speech noting the change in attitude towards same-sex marriage which is usually a cue for Scalia to demean the attorneys.  He stayed silent.

Although Kagan had not previously been a judge, she seems at ease with her role, and confident in appearance before the public and her peers.

The conservative justices were not exactly sitting on their hands, but aside from Justice Clarence Thomas, who never speaks at argument, their energy was noticeably absent.

The nine Justices will meet in private this week with no one else present to vote amongst themselves on the two cases.  The actual written opinions are not expected until sometime in June

James Turnage

Columnist-The Guardian Express

9 Responses to Justice Elena Kagan Takes the Spotlight on DOMA

  1. Barbara Negley July 5, 2013 at 8:40 am

    Alderson Court Reporting claimed in its March 27 transcript that Justice Ginsburg stated the following to Mr. Clement, starting on page 56, line 11: JUSTICE GINSBURG: Mr. Clement, the problem is if we are totally for the States’ decision that there is a marriage between two people, for the Federal Government then to come in to say no joint return, no marital deduction, no Social Security benefits; your spouse is very sick but you can’t get leave; people — that set of attributes, one might well ask, what kind of marriage is this?”

    Alderson’s new version (at page 56, line 13) claims that Justice Ginsburg’s words are that “the problem is that it would totally tort the States’ decision that there is a marriage between two people….”

    Both versions are wrong. The recording is clear (at 54 minutes and 54 seconds) that Justice Ginsburg’s concern is that “it would thwart the States’ decision….”

    The revised transcript still misquotes Justice Kagan as well.

  2. Barbara Negley April 11, 2013 at 8:00 pm

    About checking Justice Kennedy’s comment on page 70, line 4, of Alderson Court Reporting’s transcript, please note that Alderson’s transcript posted on March 27 had Justice Kennedy saying to Mr. Clement: “But I — I understand the logic in your argument….” However, Alderson’s more recently posted transcript correctly quotes him as saying “I see an illogic in your argument….” The final version of the transcript might be available through the National Archives in a few months.

  3. Barbara Negley April 11, 2013 at 7:30 pm

    The misquotation is not Kagan’s or any news reporter’s; it comes from Alderson Court Reporting’s flawed transcript of her words on page 74 at line 10. The Court’s MP3 recording, at 1:14:16 (or 74 minutes and 16+ seconds) from the start, is clear. Justice Kagan correctly quotes the House report, saying that “Congress decided ‘to reflect and honor a collective moral judgment….’” This is not the only inaccuracy in the transcript, which had Justice Kennedy saying the opposite of what he said at one point. Alderson Court Reporting has produced inaccurate transcripts of Supreme Court oral arguments for the past six years, and it is an outrage that will apparently continue indefinitely. A rule of thumb: Each page of transcript corresponds to roughly one minute of the recording, so if you want to check page page 70, line 4, for Justice Kennedy’s words, you would find them at about 69 minutes, 14 seconds on the MP3 recording.

  4. old orange March 28, 2013 at 8:12 am

    you will never find kagans twisted and fabricated misquote in the house report. go ahead do a cut and paste search. she made up her quote, probably with help, from the report… the house made it clear doma was not about homosexuality, and dont-ask-dont-tell clinton signed it.

    • Andrew Taylor April 1, 2013 at 3:37 am

      Here is the report:


      It’s on page 15 at the bottom under “B. H.R. 3396 ADVANCES THE GOVERNMENT’S INTEREST IN DEFENDING TRADITIONAL NOTIONS OF MORALITY” and continues to page 16. Here is a little more of the quote.

      “Civil laws that permit only heterosexual marriage reflect and honor a collective moral judgment about human sexuality. This judgment entails both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality.”

      Hope this helps.

      • old orange April 1, 2013 at 11:07 am

        Thank you for confirning that her quote was fabricated and not a quote from the congress: her’s… ‘Congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality’ The report say’s… well you pasted it above…. and 1.) it reads differently, and 2.) is not a quote from congress, 3.) it is from the house report, and 4.) was a quote from supporting documentation from another supreme court case, Bowers v. Hardwick. hence my position is proved. she mis-quoted.

        • Andrew Taylor April 1, 2013 at 1:08 pm

          The house report was made by the committee on the judiciary which was composed of members of the house of representatives who were members of the 104th congress. When the committee put this bill together they were doing so on behalf of congress and the government. The last paragraph from this section states “It is both inevitable and entirely appropriate that the law should reflect such moral judgments. H.R. 3396 serves the government’s legitimate interest in protecting the traditional moral teachings reflected in heterosexual-only marriage laws.” She guilty of paraphrasing.


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