Justice Alito on DOMA: Replace Marriage in Federal Statute with ‘Certified Domestic Unit’

March 27, 2013 - 4:51 PM

Supreme Court Gay Marrage

Gabriela Fore, 6, of Upper Darby Pa., holds a sign with her moms in front of the Supreme Court in Washington, Wednesday, March 27, 2013, as the court heard arguments on the Defense of Marriage Act (DOMA). (AP Photo/Carolyn Kaster)

(CNSNews.com)— During oral arguments on Wednesday at the U.S. Supreme Court on a case testing the constitutionality of the Defense of Marriage Act, Justice Samuel Alito suggested that Congress could have used a more “neutral” term than marriage in the law the defines marriage as a union of one man and one woman for federal purposes.

“Congress could have achieved exactly what it achieved under Section 3 by excising the term ‘married’ from the United States Code and replacing it with something more neutral,” Alito said. “It could have said ‘certified domestic units,’ and then defined this in exactly the way that Section 3 -- exactly the way DOMA defines ‘marriage.’

At issue is Section 3 of the law, under the definition of marriage: “In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.”

Alito’s remarks came after Justice Anthony Kennedy asked Paul Clement, the attorney representing the House members who want to preserve DOMA, if the federal government has the authority to regulate marriage.

“And it doesn't have the authority to regulate marriages, as such, but that's not what DOMA does,” Clement said. “DOMA provides certain -- DOMA defines a term as it appears in federal statutes, many of those federal statutes provide benefits.

“Some of those federal statutes provide burdens,” Clement said. “Some of those Federal statutes provide disclosure obligations.”

“Well, Congress could have achieved exactly what it achieved under Section 3 by excising the term ‘married’ from the United States Code and replacing it with something more neutral,” Alito said. “It could have said ‘certified domestic units,’ and then defined this in exactly the way that Section 3 -- exactly the way DOMA defines ‘marriage.’

Clement disagreed.

“That would make no difference, Justice Alito,” Clement said. “It does -- the hypothetical helpfully demonstrates, though, that when the federal Government is defining this term as it appears in the federal Code, it is not regulating marriage as such.

“And it is important to recognize that people that are married in their state, based on either the legislative acts or by judicial recognition, remain married for purposes of state law,” Clement said.

The attorney representing the lesbian woman whose suit sparked the legal challenge to DOMA and the Obama Department of Justice, which announced in 2011 that it would no longer defend the law, both claimed in the oral arguments on Wednesday that DOMA discriminates against same-sex couples who are legally married in the nine states and the District of Columbia where it is legal.

On Tuesday, the court heard arguments in the Dennis Hollingsworth v. Kristin Perry case, a challenge to Proposition 8, an amendment to the California State Constitution voted into law in 2008 that defined marriage as the union between one man and one woman. In a challenge to the law, an appellate court ruled it unconstitutional, and advocates for the law sought a review by the Supreme Court.

A decision in both cases is expected by June.