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Excerpts: ‘Sea of Change’

‘There has been a sea change’

On why President Obama is still enforcing the law if he believes it is unconstitutional (Chief Justice John G. Roberts Jr.):

ROBERTS: If [President Obama] has made a determination that executing the law by enforcing the terms is unconstitutional, I don’t see why he doesn’t have the courage of his convictions and execute not only the statute, but do it consistent with his view of the Constitution, rather than saying, “Oh, we’ll wait till the Supreme Court tells us we have no choice.’’

On the question of whether the definition of marriage should be a federal matter (Justice Anthony Kennedy and Paul Clement, the lawyer representing the House Republican leadership in defending the law):


KENNEDY: You are at, 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.

CLEMENT: 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 is an independent federal power that supported that.

On whether there has been a ‘‘sea change’’ in opinion on gay marriage since the law was enacted in 1996 (Roberta Kaplan, the lawyer for the 83-year-old New York woman who sued over
DOMA, and Justice Antonin Scalia):

KAPLAN: I think [the 1996 law] was based on an understanding that gay . . . an incorrect understanding that gay couples were fundamentally different than straight couples, an understanding that I don’t think exists today. . . . So I’m not saying it was animus or bigotry. I think it was based on a misunderstanding on gay


SCALIA: Why . . . why are you so confident in that, in that judgment? How many . . . how many states permit gay . . . gay couples to marry?

KAPLAN: Today? Nine, your honor.

SCALIA: Nine. And so there has been this sea change between now and 1996.

KAPLAN: I think with respect to the understanding of gay people and their relationships there has been a sea change, your honor.