This is the closest the government came to addressing the issue of animus. To the United States, it doesn’t matter if this law was born of “moral disapproval,” or not. It cannot withstanding equal protection analysis after Lawrence.

7 CHIEF JUSTICE ROBERTS: So that was the view 8 of the 84 Senators who voted in favor of it and the 9 President who signed it? They were motivated by animus? 10

GENERAL VERRILLI: No, Mr. Chief Justice. 11 We quoted our — we quoted the Garrett concurrence in 12 our brief, and I think there is a lot of wisdom there, 13 that it may well not have been animus or hostility. It 14 may well have been what Garrett described as the simple 15 want of careful reflection or an instinctive response to 16 a class of people or a group of people who we perceive 17 as alien or other. 18 But whatever the explanation, whether it’s 19 animus, whether it’s that — more subtle, more 20 unthinking, more reflective kind of discrimination, 21 Section 3 is discrimination. And I think it’s time for 22 the Court to recognize that this discrimination, 23 excluding lawfully married gay and lesbian couples from 24 Federal benefits, cannot be reconciled with our 25 fundamental commitment to equal treatment under law. This is discrimination in its most very 2 basic aspect, and the House Report, whether — and I 3 certainly would not suggest that it was universally 4 motivated by something other than goodwill — but the 5 reality is that it was an expression of moral 6 disapproval of exactly the kind that this Court said in 7 Lawrence would not justify the law that was struck down 8 there

 

That’s funny because Lawrence was a due proces case, not an equal protection case. No one joined O’Connor’s equal protection opinion.

9 JUSTICE SOTOMAYOR: General, your bottom 10 line is, it’s an equal protection violation for the 11 Federal Government, and all States as well?

GENERAL VERRILLI: Yes, Your Honor, and 13 that’s the — we took the position we took yesterday 14 with respect to marriage — the analysis -­