Toward the end of the arguments today, an anti-DOMA plea was made to the Court by Roberta Kaplan to grant political power to those who oppose DOMA. It did not seem to compute with the chief justice who noted that “As far as I can tell, political figures are falling over themselves to endorse your side of the case.” Paul Clement ended the session by speaking to, perhaps, Justice Kennedy:
The last point I would simply make is in thinking about animus, think about the fact that Congress asked the Justice Department three times about the constitutionality of the statute. That’s not what you do when you are motivated by animus. The first two times they got back the answer it was constitutional. The third time, they asked again in the wake of Romer, and they got the same answer: It’s constitutional.Now the Solicitor General wants to say: Well, it was want of careful reflection? Well, where do we get careful reflection in our system? Generally, careful reflection comes in the democratic process. The democratic process requires people to persuade people.The reason there has been a sea change is a combination of political power, as defined by this Court’s cases as getting the attention of lawmakers; certainly they have that. But it’s also persuasion. That’s what the democratic process requires. You have to persuade somebody you’re right. You don’t label them a bigot. You don’t label them as motivated by animus. You persuade them you are right.
That persuasion campaign seems like it has only just begun on the side of those seeking to protect marriage as we’ve known it, and to genuinely build up a marriage culture. The Court ought not shut down (potential) careful reflection.