Attorney: Same-Sex Couples Are Not ‘Fundamentally Different’ Than Male-Female Couples

By Penny Starr | March 27, 2013 | 3:59pm EDT

Kevin Coyne of Washington holds flags in front of the Supreme Court in Washington, Wednesday, March 27, 2013. (AP Photo/Carolyn Kaster)

( – During oral arguments before the U.S. Supreme Court, Roberta Kaplan, attorney for the lesbian woman whose case could result in the high court’s repeal of the Defense of Marriage Act, told justices on Wednesday that there is nothing “fundamentally different” between homosexual and heterosexual couples.

“The only – the only conclusion that can be drawn is what was in the House report, which is moral disapproval of gay people, which the Congress thought was permissible in 1996 because it relied on the court's Bowers decision, which this court has said was wrong, not only at the time it was overruled in Lawrence, was wrong when it was decided,” said Kaplan, attorney for Edith Schlain Windsor, the respondent in United States v. Edith Schlain Windsor.

Kaplan told the court that Congress passed DOMA, which defines marriage as the union of one man and one woman for federal purposes, because of “disrespect” for gay marriage.

Chief Justice John Roberts asked Kaplan if she was saying Congress’ passage of DOMA was a moral decision.

“So 84 senators – it's the same question I asked before; 84 senators based their vote on moral disapproval of gay people?” Roberts asked.

“No, I think – I think what is true, Mr. Chief Justice, is that times can blind, and that back in 1996 people did not have the understanding that they have today, that there is no distinction, there is no constitutionally permissible distinction,” Kaplan said.

“Well, does that mean – times can blind,” Roberts asked. “Does that mean they did not base their votes on moral disapproval?”

“No; some clearly did,” Kaplan said. “I think it 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, and that's the sense I'm using that times can blind.

“I think there was – we all can understand that people have moved on this, and now understand that there is no such distinction,” Kaplan said.

When Roberts asked Kaplan whether the “sea change” in public opinion on gay marriage was the result of political clout, she disagreed and again said there is “no difference” between homosexual couples and heterosexual couples.

“I suppose the sea change has a lot to do with the political force and effectiveness of people representing, supporting your side of the case?” Roberts asked.

“I disagree with that, Mr. Chief Justice,” Kaplan said. “I think the sea change has to do, just as discussed was Bowers and Lawrence, was an understanding that there is no difference – there was fundamental difference that could justify this kind of categorical discrimination between gay couples and straight couples.”

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.

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