Paul Clement, the attorney defending the federal Defense of Marriage Act, said during oral arguments before the Supreme Court Wednesday that there is precedent for defining marriage on a federal level because the government recognized marriages of freed slaves in the South.
Justice Elena Kagan, one of the court's liberal-leaning justices, suggested that DOMA throws up a "red flag" in a rather unprecedented attempt by the federal government to "uniformly recognize" marriage, according to court transcripts.
Clement responded by naming various examples of the federal government intervening in the definition of marriage.
Clement brought up the fact that Congress insisted on polygamy prohibitions in four state constitutions. He also brought up the recognition of post-Civil War recognition of freed slave marriages.
"There is a reason that, in the wake of the Civil War and in Reconstruction, Congress specifically wanted to provide benefits for spouses of freed slaves who fought for the Union," Clement said. "In order to do it, it essentially had to create state law marriages, because in the Confederacy, the slaves couldn't get married.
"So they developed their own State — essentially, a Federal, sort of, condition to define who was married under those laws. So where there was the need in the past to get involved, the Federal Government has got involved."
Kagan also suggested that she thought Congress may have discriminated when it passed the law in 1996.
"When Congress targets a group that is not everybody's favorite group in the world, 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' judgment was infected by dislike, by fear, by animus, and so forth?" Kagan said.
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