a military operation and we pointed to al jazeera journalists. i didn't know about it. general petraeus didn't know about it before it happened. and it turned out these were guys who were part of the taliban imbed process. we have journalists that go with u.s. soldiers when they take -- undertake an operation. these were guys on the taliban phone tree, and they would get calls that would say, hey, if you set a camera up tuesday night on this block, something might blow up. and we arrested them because they were providing material support to the taliban. the day before this happened, i had been criticizing russia for jailing yet another round of journalists, and i'm going to -- i agree with you. both talking to general petraeus and he's going, what the heck? and that's the challenge. government is very big.

it's very transactional. and being able to look at a potential action and trying to connect it to something larger is hard. looking at an action and saying, okay, what it this becomes public? can i explain it? of i can't explain it, don't do it. later on, the head of strategic communication for general petraeus sat down with the al jazeera bureau chief, and he said, here's what your guys were doing that caused us concern. and the al jazeera bureau chief says they were violating our guidelines on reporting. hmm. and so the moral of the story is, why don't we start there? have that conversation first and say, you know, we've got a problem. either you solve the problem or we'll solve the problem. but doing it where you are able

to handle the situation with public diplomacy in mind before it pops interest the open -- before it becomes a crisis, before it becomes a headline, an unflattering portrayal in this publication or that publication. that's the mindset we have to have. and in a way, i'm always an amirer arer of the marines. every marine is a spokesman for that service. and i think we have to have that same mentality across government. that in today's world, whatever we're doing is going to become public one way or another. and so we have to have a public dimension to what we're thinking, what we're doing, what we're communicating, and just try to figure out if in the process of doing that, we can narrow the gap between what we say and what we do. [applause]

>> thank you. >> talks continue today on the situation in ukraine. sac of state john kerry arrived in geneva wednesday for meetings with representatives from ukraine, russia, and the european union. in the "washington post" this morning, report that pro-russian militants were killed in a crash in a ukrainian port city. it reads: ukrainian forces engaged pro-russian separatistses thursday in what appeared to be the most intense battle yet, killing three militants and wounding 13, after what the interior ministry transcribed as a siege on a military base in the eastern city -- it guess on to say a mob of 300 militants wielding guns, molotov come kales and home-made explosives attacked the ukrainian military outpost in the city overnight. the interior ministry issued a statement saying the attack was

repelled by national guard and police in the city. you can read the story in its entirety at washingtonpost.com. >> things got heated at the united nations wednesday between the ambassadorses of russia and ukraine, at each presented his version of the continued standoff between the two countries, following the annexation of crimea. here's part of the exchange. >> translator: interesting. not the first time we're witnessing this here. for some robe some of our western colleagues believe that if there is some armed coup, it's better for it to be armed. then of course democrats -- it will always result in democrats taking power. thomas jefferson will take the lead in all of thisy. you see these individuals -- the people in authority now, do any of them have a serious reputation as politicians who

are democrats? you won't find any such individuals there. and now these pseudo democrats. have they done anything? have they done anything to forge something that would have to -- the appearance of democracy? nothing but fights. forcefully remove those who object to them. you have military camps. in one has been disarmed and these democrats, having stabbed no democracy in kiev, are now trying to enforce democracy -- law and order some of our colleagues said -- through the deployment of armed forces and trying to -- forces in southeastern ukraine. this is reality. colleagues have referred to the elections are being prepared. what is our concern here? what i do have to agree with my

ukrainian colleague with, -- i don't remember his exact words but there has to be an in-depth change as compared to the past. has to be a break with the past. the ukrainian people are now being asked to buy a pig in a poke. go and elect a president on may 25th but it's entirely unclear what type of authority he will possess. what sorts of government will he preside? significant authority or perhaps will the prime minister have more authority? and more power? but the elections will take place on may 25th, and elections -- this has been full reversed and now these elections are being pushed forward where members of parliaments are going to be elected. is this democracy? is this breaking with the past and building a new democratic ukraine? and now very last but not least, the negotiation in geneva we

feel they should take place. we are preparing carefully for them. if they are not undermined by some sort of action in southeastern ukraine, they will take place. but our western partners of the ukraine ready for this? this is a big question. perhaps this is a secret to you. we fought various formats for involving representatives repree region as -- the response those proposal was negative. let us see what all of this -- i'm referring to the geneva meeting -- we hope it leads to aukraine which well engage on the path of normal to and all regions understand what is they're fate tomorrow, all the religious, all the ethnic groups understand clearly what the future has in store for them, and then we would together look

at the economic problems of ukraine and this is dialogue which we invite our partners to participate in, including in the well-known lesser by president putin sent to a number of european states. madam president, i thank you. >> translator: well, the thought comes to my mind that sometimes there is no point in making comments on certain things because our russian colleagues in any case, will stand by their position and their opinion and will represent a situation the way they wish it to be seen. so, this virtual reality which my russian colleagues are dem -- demonstrating. everybody says something and they live in their own world. you will have to participate in a discussion on crimea.

it's temporarily occupied but until it is returned to us we will continue to discuss it. and we have seen the support demonstrated by the whole world to ukraine. it's unfortunate that when you're making your comments, you're using words such as -- it's a shame that your representative for not addressing the security council meeting with the crimean delegation headed bier a human rights defender who sat in soviet jails for 15 years, defending the rights of the people. and he said just what i said. let us repeat his position. well, the crimean -- will hear you consider this to be lies and provocation. and i have no further comment. because everything that was said

previous to this was nothing more than manipulation and a distortion in a style which is well-known and familiar to all of us. thank you all of you for your attention. >> thank you. for your patience. >> you can see this united nations security council meeting in its entirety anytime on our web site, c-span.org. >> supreme court justices antonin scalia ruth bader ginsburg are guests to discuss the first amendment and how freedom is defined. live today at 6:00 p.m. eastern on c-span. >> edison was a plant scientist as well as interest in the other sciences, and the story is that he knew that it didn't freeze in fort meyer, so interests in this

area were bested on his love of plants. by the 1920s, the united states was relying on foreign rubber and we were headed into war. at that point they decided the plant material and process should be done in this country. edison, ford, and firestone, were traveling around the world collecting plants, and in fact had thousands of people all over this country collecting plants and sending them back their fort myers to his laboratory to find a source of plant material that could produce rubber efficiently commercially. the laboratory was put here because of the reason, they could grow the plants here and then actually do the preliminary research on site. so it's an exciting project. the laboratory was interesting because at that point in american history there was no patent process for plant,

chemical patenting, and so part of the reason why this lab was so important was that it caused the u.s. government to come forward with what was called the patent -- the u.s. patent law, which then said that if you invented something with plants, and it was a process that was worthy of pat tent -- patenting, it was issued a patent. >> this weekend, book tv and american history tv take a look at the history and literary life of fort myers, florida, including a stop at thomas edison's botanical research laboratory, saturday, noon eastern, on c-span2 2 and sunday at 2:00 on c-span3. >> a three judge panel at the tenth circuit court of appeals in denver heard a case challenging the utah same-sex marriage band. the voters passed an amendment to the state's constitution

recognizing marriage as only between a man and woman inch december, a federal district judge tossed out the voter-proofed ban, ruling it violated the 14th amendment's guarantee of due process and equal rights protection under the constitution. this oral argument is an hour. >> we're here this morning for one case, 13-4178. kitchen vs. her hurt, you may protest. >> i'm honored to appear today on ball of the state of utah, its governor, its attorney general, who is here with us today, and its people. and just for the court's information i'm going to try to reserve seven minutes for rebuttal. >> you're the master of your own time. >> thank you, your honor. the issue before the court is obviously not how the emotional and difficult issue of same-sex marriage should be decided. the issue is really one of authority. that is, whether under the federal constitution, the

states' definitional authority over marriage allows them not only to redefine marriage in genderless terms as the supreme court in winsor held it does, but also to retain the traditional man-woman definition of marriage, and to do so through democratic means as new york had done in the opposite direction in winsor, so before i discuss the state interests served by utah's man-woman definition, and what we see as the serious risks posed by the district court's redefinition of major, let me first address why this fundamental question of state authority is govern bid the rational basis standard. all of the appellate court decisions that have addressed the federal question presented here, including the eight circuit, in the minnesota supreme court in baker vs. nelson, which we think is still binding on the lower federal

courts by virtue of the supreme court summary affirmans of that decision, all those decisions have applied rational basis scrutiny rather than heightened. and the rag basis is def rein shall to democracy. the district court and the plaintiffs have nevertheless offered four arguments for some sort of heightened scrutiny but none of those is sound. indeed, the district can court itself recognized, the plaintiffs' argument for height 'ed scrutiny based on sexual orientation is fork -- foreclosed best this court's decision, and most of the plaintiff's other arguments would imply a right to such things as polygamist marriage which is an issue in utah. the example that the plaintiffs have a right to marry the person of their choice. the supreme court has never recognized such a broad

fundamental right to marriage, despite being urged by the united states in the winsor case to adopt that very position. but they declined to do that in winsor. and in fact to the contrary, winsor really destroys that argument as the same-sex marriage by noting that, until recently, most people consider a man-woman union, quote, essential to the very definition of the term "marriage." and that, of course, means, under the supreme court's decision, -- the alleged right to same-sex marriage is not in fact already so imbedded in our laws and our traditions as to be required by ordered liberty. >> before we get to that case, let's focus on loving for a second. in loving you had a classification that the state argued they made an argument of equal application in that case

as well. the man and woman involved. but there was a classification. what bars them from getting married? was race. and in this instance, why is it any different? you have a man who wants to marry another man. the only thing that bars him from getting married is sex, gender, so why is that any different than loving when you're drawing a line based upon a protected classification? why shouldn't this be a situation of evaluating the gender for intermediate scrutiny? >> a couple of answers to that, your honor. first of all the supreme court's decision in loving did not intrude into the state of virginia's definitional authority over marriage. the exclusion of mixed race couples was a regulatory exclusion. when you look at the statutes that are laid out in the supreme court's opinion, they made clear that marriage was defined as the union of a man and a woman and then in a separate provision,

the court made it a -- the state made it a crime for a mixed race couple to marry. >> which made that mixed race couple an other for purposes of marriage. why isn't that any different inning this situation where you're saying this is an other classification and consequently, it is barred from marriage? >> well, your honor, loving was obviously based on a racial classification which is subject to higher scrutiny -- >> right enough i'm not talking about whether it should get a heightened level of scrutiny. i'm talking about it relates to the question whether it gets intermediate scrutiny, not whoa it gets strict scrutiny, as relates to intermediate scrutiny, why does it not matter that it all turned on this protected classification? in lifing it was case inch this case it's gender. >> i think the answer to that your honor, is in loving the

supreme court found that the misogyny statute was designed to give whites an advantage over african-americans. and by the way, even the way the classification works, it was inherent -- racially discriminatory because it treated different races differently. it wasn't just whites versus blacks. there was also discrimination among other races as well. >> the question of whether maintainer is a fundmental right -- whenever the court has spoken, whether it's cleveland board of education, whether it's in kerry, whether it's in the lynnyard v hill, it always speaks of marriage as a fundamental right. and we start that as a first principle. can we agree that marriage is a fundamental right? >> marriage astra divisional -- as traditionally understand is a

right. >> you argue the question is not whether marriage here is a right but whether same-sex marriage marriage is -- same-sex marriage is a right. have we never the court's december -- has it ever parsed so finally as to make that kind of a distinction? for example in loving, never spoke in terms 0 the misogyny issues among races. >> i think in loving, your honor -- it's a good example where the parole presumption was we were talking bat man-woman marriage. one of the things the court said when it -- is that it's fundamental to procrating and maintaining the human race. and that's true in the other fundamental right to marry decisions. the block case, for example,

talked about how people have a fundamental right to marry and raise children in the traditional family setting. >> why is block not a good example of the course parsing more finely. didn't talk about a dead beat dad. it talked about a fundmental right to get married. so the argument raised by opposing counsel, why does its matter who is claiming the right? it's a fundmental right, and why does it matter the participants in that enterprise? if marriage itself -- which they talk about in context other than procreation, why does it matter? >> this races the whole question of what marriage is. you really can't answer that -- the question of how far the fundamental right to marriage extends until you decide what marriage is, which is the point that justice alito raised in

winsor. he said you have on the one hand the traditional child centric vision in which marriage is essentially, and i'm quoting the so many lemmization of a comprehensive exclusive union intrinsically ordered to producing new life, even if it doesn't always do. so so that's the traditional vision of major and that's utah's vision of marriage. opened, as he described it, you have what has come to be called the consent or relationship vision of marriage, which focuses, as he said, on mutual commitment -- you're you're quoting justice alito. >> justice alito. >> it was an assent. >> there was and is no disagreement by member0s the supreme court on this point nobody disputed there is this fundamental underlying issue what major is. >> there is that issue but the

question becomes has the supreme court exclusively defined major to reflect this conjugal -- i think the term justice alito you decide congress -- con yugoal version of marriage. >> under winsor it wouldn't be appropriate for the supreme court to resolve this fundamental clash of different visions of marriage. that was the whole point of winsor. that's not a proper federal function. that's a proper state function. the states have, as the court put it, virtually complete authority over the definition of marriage. >> in turn -- turning to windsor -- there's the question-i think justice schoolie in his dissents highlights it -- that when the court was speaking in wind sore about marriage, it very clearly

indicated and gave a direction it was going to be talking about federalism, but in fact, when it came time to the dispositive language of windsor, it directly disallowed a decision that would be predicated on federalism and instead turned to equal protection and due process as the deciding element to that case. >> to address your view of -- you assert it in your brief but i was not fullly persuaded your view prevails, that is to say that federalism is the only touchstone of that case. >> i agree with you. federalism was not the only touchstone but the federalism premise that the states have virtually complete authority to define marriage, was the premise of the court's analysis of the

individual rights involved. windsor was very much like a takings case, where it's state law that determines the scope of the relevant property right, and then you determine under federal law where there has been a taking. that was exactly the style of analysis that -- windsor undertook. >> didn't wind sore bracket the state's right to define marriage with the qualification subject to constitutional rights rightsn one place in particular cited loving, which would leave to us believe that, yes can the state has the authority, which everybody acknowledges, to define marriage but subject to not violating individual rights of those people involved. >> that's absolutely right. also to loving, it's significant that the court in wind sore did not draw an analogy to loving. the court cited loving for the proposition that the state's

authority is limited by the federal constitution, beginning -- if we're asking, is there a fundamental right to mary -- marry that includes same-sex couples, you first have to decide what major is, and new york insuring windsor, decided they would adopt the more modern adult relationship model of marriage such that marriage could be the union of any two people who love each other -- >> judge shelby -- his decision is under review -- he said that the issue is not the definition of marriage, whether the federal courts should impose a definition of marriage, but, rather, whether the -- in its exercise of its authority the state of utah may properly deny a same-sex marriage without violating the federal constitutional principles. that's really the issue before

us. >> i agree that the district court said that, your honor, but then the court did what it said it wouldn't do. if you look at page 28 of the court's opinion, the court gives its own definition of marriage for purposes of the fundamental right, defines marriage as, quote, a public commitment to form an exclusive relationship and create a family with a partner with whom the person shares an intimate and sustaining emotional bond. >> ear under denovo review and is not relevant to the ultimate determination. >> but it does illustrate the point you can't answer the request whether there's a fundamental right without first decides what major is, and that's a decision that fundamentally, left to the court, subject to some constitutional limits as in block and loving and other cases, but the states have virtually authority to decide what vision of marriage, what

model of marriage, are we going to adopt? >> could i just shift your stage to a somewhat mundane point. you said you were representing the governor and the attorney general. she is not before us on appeal. >> she is a party, i believe. i believe she is technically a -- she has not appeared. >> she has not appeared. and what is the authority of the governor and the attorney general of utah with respect to enforcement of these particular provisions, the ban and the nonrecognition clause? what authority beyond being general law enforcement officers of utah, does the governor and the attorney general have? >> they have the authority to determine the policies, for example, of state government agencies toward marriage, whether those agencies recognize marriages or not, and that's become a big issue in light of the absence of a stay in this

case. there were a number a number ofs that were married and its under the attorney general's authority oh decide how the state agencies treat the marriages. >> do they have the authority -- the two allegations here are, one -- maybe more but the two principle ones are, one, the plaintiffs want to be married and are being denice the right to be married. and, two, one marriage exists and they want recognized as a marriage. what direct role does the governor of the attorney general have in doing either one of those things, between marriage licensers or recognizing foreign marriages established. >> they set the policy for the agencies of the state government with respect to, for example, to marriages that are undertaken outside the state. people go to the state agencies, for example, the state taxing and revenue authority, and that authority will have to determine, are we going to recognize this couple as married for tax purposes or not? and the good and the attorney

general control those matters. >> let me -- while we're on that broad discussion, it seems to me the governor and the attorney general would have broad plenary thought with respect to enforcement of amendment three. let me ask you this. the children of gay marriage couples whose marriages have been recognized in another state, such as iowa, how will the state treat the children of those couples given amendment three and it's statutory scheme and how can that treatment be squared in your argument of the marriage institution being child centric institution? >> ...

let's talk about marriage today. >> but it's both of those at the same time, your honor, and that's why i mention it. as well-versed in virtually all legislation classifies in some way with resulting disadvantage us to some groups and individuals. >> and children. >> the question is are the states interests, are they legitimate, first of all, and is

what the state has chosen, the policy that they have chosen, does that policy adequately advance those interests blacks if i could -- >> can we turn to the first question first and then we will get to that. how will the state of utah treat and recognize the status of children and couples, gay couples, who have been married in the state in which the marriage was properly recognized but then came to utah? i think it's important because i would like to get an answer. >> the answer is simple under amendment number three the state isn't allowed to recognize those marriages. the federal government recognizes the children are able to get federal benefits now. afteafter the state isn't allowd under the amendment to recognize them and so --

>> doesn't stigmatize those children and wasn't precisely the concern for justice expressed to some degree that motivated his decision in that case? >> the stigma that he was talking about being in a second-class marriage is that the couples in windsor were a chilling area to pursue into that state law that the section number three told them even though you are married under the state law, the federal government isn't going to make recognize your marriage and that essentially made them purchase a print of second-class marriages and the court held for that reason that there is no question that there are trade-offs in policies like this and so the question is what are the states interests and is that their decision to justify utah's

decision to maintain the traditional man and woman definition of marriage and again under the rational basis because of the differential to democracy that standard will invalidate the classification only if it doesn't serve any legitimate interest in here there are at least four state interests i would like to discuss briefly that maintains some of the main reasons that the state of utah recognizes and gives benefits to married couples in the first place and also give rise. >> are there any factors that are controverted in this case as it sits before us today? >> i don't think so i think all of the facts are legislative. the district court rejected the plan and obviously we are not

disputing that. but the first interest that i would like to discuss briefly is the state's interest in the gender diverse parenting which reflects the common sense view expressed in the case that the best situation for a child is to have both an involved mother and involved father and gender diversity and parenting we think is as legitimate of governmental interest as gender and racial diversity i in education of whih the supreme court has held in the compelling interest. and i-india, gende indeed, gends one of the reasons the new york court of appeals concluded that new york then man, woman marriage definition had a rational basis. so then you can ask ou how doese man and woman definition have that basis. one is from johnson versus robertson which holds a

classification that includes one group and not another is rational if the included group is in general differently situated with respect to the legitimate government interest. >> i agree the state of utah may indeed have legitimate. let me say parenthetically i found and i believe my colleagues did as well the amicus briefs in this case to be particularly helpful in a broad range topics. they were very helpful to enlighten us on the point. now, to the first point that utah has these policies what i don't understand is how some of the policies somehow is contradictory to allowing a stable relationship between the non- heterosexual couples.

why is a heterosexual couple more likely to get married if gay couples are not allowed to get married. why is the relationship between a heterosexual couple and their children likely to be stronger if because couples are not allowed to have such a relationship. >> i don't understand the connection between the two. >> talking about the amicus briefs there is won by the professor that addresses that very point with respect to the children of heterosexual couples. but let's take the interest and gender diverse parenting to answer that question. we bb that redefining marriage in the terms and moving from the man and woman definition, and the man and woman definition suddenly conveys the message and kennedy said that the law of the

teacher conveys the message that a mom and dad are important and when you redefine marriage in the terms you direct that message and that norm in the law so one of the messages to that is we really don't need you to have a happy or productive marriage and we really don't need for your children because now we have set up this alternative arrangement where two women can get married and they can be impregnated artificially and create their own family without a man and that sends a message that teaches and justice kennedy's words that it is just not really that important and that dads are not that important and in their regard i just want to share with the court something that i found

in one of the record of materials that we submitted and i don't think we highlighted that it is on page 983 of the appendix and this is an explanation from the name about why fathers especially are important in the life of their kids, why they play a unique and invaluable and important role. she said what he gets from the laws of the father is a deep personal experience of masculinity that is pro- social, woman and child command without this personal experience, a boy is deeply driven to seek some meaning for masculinity and is vulnerable through a variety as market-driven alternatives definitions of masculinity and those are often grounded in aggression, physical strength into sexual.

she continues the importance of a father in giving a boy a said social sense of his masculinity may be one reason why a national study found that they raise outside of the impact marriages were a i can to commit a crime leading to imprisonment. >> or those marriages from before? >> we are pointing to the fatherlessness in general as the problem and one of the norms of the current definition of marriage and of the current visit and marriage is that moms and dads are important. they play independent complementary important roles. and if you change the definition of marriage as the district court opinion illustrates you are necessarily also changing the vision that is embodied in

the law and being a teacher that has a real-world effect on individuals where at least there is a significant risk that will happen. as the justice pointed out for there to be conclusive statistical evidence about the impact. >> and on that ground it seems to me something as recently as i guessed yesterday it seems you are backpedaling from the view that you took in support of his theory that same-sex marriage relationships we have been here he has it relates to child-rearing is that true, what is left of your support for his theory if anything? >> we support that letter because we want to be sure that the court understands that we are not trying to overstate what his studies show.

athe bottom line for all of that is that the judge in detroit recognized the bottom line is that science is inconclusive. >> if we are knitting about the rational basis, you would lose on that point, right-click >> i don't think so, your honor, because the court could also rely on common sense and the fact that this is still new and that the state is responding to the risk and government are entitled to legislate and regulate on the basis of risk that they have received to their populations even when those risks have not been proven. >> that same argument would have residence under any media or strict scrutiny you're telling me? >> i think there are cases from the circuit but stay at a minimum that's a legitimate mode

under the intermediate scrutiny, yes. and we cited those in the briefs. [inaudible conversations] >> please pull the microphone downplays there you go. >> sorry about that. good morning. i am here on behalf of the plaintiffs. as the court does, the people of the united states in 1869

amended our constitution to add the 14th amendment. that amendment became a part of our federalist system and remains so today. under the 14th amendment, the people of this nation wanted to ensure that no state could treat citizens within its jurisdiction on equally or deprive them of their fundamental rights and liberty interests. every state including utah is bound by the guarantees of protections of the 14th amendment for every single citizen in its state. utah's marriage discrimination law violates plaintiffs and

other same-sex couples living in utah. equal protection right into process rights guaranteed by the 14th amendment. >> what is the review on the council? what is the standard of review? >> it is a legal issue, your honor. >> what level of scrutiny should we apply to the case? >> our position, your honor, is that with regards to the equal protection claims, the court should apply a heightened level of scrutiny either based on that careful consideration analytical framework established in the position which began in a world where or under a gender or sexual orientation suspect classification. >> what do we do about the case? >> with all due respect we

disagree with the state and the judge's interpretation of that decision. in that decision, the plaintiff who had asserted below that strict, not intermediate scrutiny applied in that case did not present that issue on the appeal and therefore the language of the court first was talking about strict scrutiny, and it was in the sense that it had nothing to do with the issue before the court that was being decided at that time. >> if we disagree with you, do we speak to both the due process and the equal protection or does it speak only to the due process and not equal protection or vice versa?

our reading of the case is that the case speaks to equal protection and not due process because in this particular case, we have made the claim in the district court found that there is a fundamental right to marriage protected by the due process and where you have a fundamental right that is included upon and disallowed the courts traditionally have applied strict scrutiny which is the highest level of scrutiny. >> on the price case would you acknowledge the distinction between sexual orientation as a classification in other words it could be a basis for intermediate scrutiny for gender,/sex discrimination that doesn't exist or sexual

orientation discrimination, write? that's right and we have asked the court to apply heightened scrutiny based on either one of the classifications. and i know that you are not bound by the judge's findings that he did find amendment three in the statute violated the rights because of the gender discrimination. my understanding of his decision your honor is what he said was that while there was gender-based discrimination which would require heightened scrutiny he didn't need to reach that issue because it failed under the basis review. >> just because you disagree with the state reason doesn't make it a rational does it?

>> no, your honor and i don't believe that is our argument. national basis review was discarded as acknowledged in discord has acknowledged and certainly the supreme court and a number of decisions has acknowledged that while it is a differential standard to the legislature, it is not a toothless standard and it may not be based on the rationale that has no reality. >> can we get to the issue of the fact that we need to have a trial? you've presented the rationale and another has presented another. can the court make that determination based on a bunch of social logical papers that were presented to it? >> i would like to answer that in the three parts if i could,

your honor. first of all of you look at the state interests that have been inserted, they are fundamentally and in fact word for word in that sentence is the same rationales that were asserted before the supreme court. without a trial it found that none of those justifications overcame the purpose or the effect to disadvantage to harm the children. >> didn't we focus on the fact that the state had approved, had adopted a particular standard? it would be permitted. the federal government was interfering in the state's decision and the fact that it may have also impacted children

and people when it was certainly. >> our reading is a little broader than that and we bb the courts certainly talked about the power to govern in this area of defining and regulating marriage the court went on to hold that it was striking down doma because of the process and equal protection and the court in fact was looking at the violations of the liberty and the equal protections interest protected by the first amendment when it struck down into the injury and harm that it was looking t into is exactly the se type of injury with regard to the marriage discrimination. in fact the state of utah has conceded that the hand of the plaintiffs have a very large and in fact we have demonstrated as

a result of that but let me come back to tour question on the judgment. no party in the case. there is any material issue or fact. if any of the sociological studies present legislative facts. >> you're saying you can just ignore those. >> they wouldn't be subject to a trial but even with regard to the social science and i think that you saw when the state backed away from and gave up its reliance on the study there is no study presented to this court that in fact measures the only issue that existed as one of the states primary arguments which

was that same-sex parenting is not as good as what they call the man and woman marriage and e and there isn't a single sociological study that they have cited that is on point and every organization in the nation that is responsible for children and adolescents with over 40 years of testing. not marriage, your honor but same-sex couples have been bonding long-term relationships and raising children for many years. >> some of the studies have been criticized for having small samples and not having the sort of analytical that would allow us to draw any conclusions. so my question is this is always going to turn on the standard review. it seems to me that if we end up

in a situation where the best the state can say and right now it appears the best they can say is that it is inconclusive. if we are under any level of heightened scrutiny to the question that i asked the council it seems to me that on that particular point they would lose. >> i would absolutely agree. >> it seems to me that given that same question on a rational basis review i don't see how you would when because it is inconclusive and we have a risk and eight basis to address it it gets back to the point you have a disagreement so why can't the state -- >> i disagree with you. under the rational basis test

there are two requirements. one is that there would be an independent legitimate state interest, and let's assume that a move that because there is an arguable disagreement. we don't agree with that but let's say that's the state of the record. it requires that they are would be in excess and that state interests. and in the case to classification is the exclusion of same-sex couples from marriage. >> you have just taken the position that they are wrong on that and if they are correct, if there were some type of a nexus you can't just say i disagree with the nexus. we have a legislative antidemocratic situation here. we have people that are voting and we have a legislature if we

felt that there was something there can we say that your wrong end of the group stands up loud enough we will ignore what the people have decided it wanted the legislature has done. why should we discriminate against people that want to have two or three lives versus people that want to marry same gender? it seems to me that it all goes together. >> i think there are a number of questions, your honor. this pertains to all of these. i think an overarching question on all of these points is that the very arguments that were made in baker v. nelson in the decisions that were considered by justice kennedy, the very argument about scrutiny and

level of scrutiny were presented to the supreme court as well. and yet the supreme court didn't choose a particular label to place on the scrutiny that it chose to supply, but any reading of that has led every single federal court that has looked at the issue after to conclude that even under the most relaxed of scrutiny is, rational basis, the law does not allow the type of discriminatory behavior that is an issue in these types of cases. so, my question is do we trump all of judge kelly questions on this point?

>> our position is that it is but i will get to why it doesn't matter even if you go under the rational basis review and i will get back to you and kind of run across. your questions are very good. in fact it trumps any argument that the only level of review that these types of law are subject to is a rational basis. the reason i say that is that while he never put a label on the scrutiny that it was applying, what it did is it looked to the decision where the supreme court struck down the second amendment to the colorado constitution and said where you have the law that categorizes a

group of people based on a single trait which in that case was being or, that is a rare law in our jurisprudence and where you have been being discriminated against and treated similarly for the purpose of making them on equal, the pope court -- court applied a careful consideration to make sure that the purpose and the effect of those are not to harm the class. and in looking at the analysis applied careful consideration and analysis that in reading it does not resemble the national basis. it says that beginning point is to look at the design, purpose and practical effect of the law

and if you find them even if you just look at the text as you can certainly do under the decision to determine if there is no attempt to discriminate and you find that the purpose and the effect is to treat this separately and make them on equal and you have the kind of harms the state concedes and exists in the case probably to a higher extent because it is every day they must face the stigma and the harm that's being treated as second-class citizens the burden shifts to the state and the state must come forward with legitimate interest that overcomes the principal purpose and practical effect that damages the individuals who are the targets.

>> i said i would keep quiet about what the object. is this really language or rational basis of heightened scrutiny? i think that is a rational basis isn't it? >> the word legitimate interest comes from the rational basis, your honor. but the court is not a rational basis analysis. and the legitimate interest of the supreme court found is not overcoming the purpose and the effect are not the same that are being asserted here by the court. >> that is a unanimous argument isn't it? and the judge didn't find unanimous and i'm struggling to see how that is applicable here. i think it is the case out of the new york court of appeals where the court spoke about the notion that up until i was caught 2010, no one even thought of the notion of recognizing that as a legal matter same-sex

marriage. so what you talk to you utah has done is validate forever. how can that be viewed on the same footing where they went in and attempted to you sensually say that same-sex couples or anybody on sexual orientation grounds far from the legal relief, those are two different thingthings aren't they? >> they are not, your honor. what the court was looking at him rohmer is what do they do and how are they differentiating between the classes of individuals, and are you differentiating to treat them on equally and if that is the situation, that is a very rare type of the law and you can talk about semantics but there is no question looking at the text of the amendment number three into the other marriage discrimination law the only

thing they did is target same-sex couples and make them on equally. none of them establish the right to marry. their only purpose in fact was to exclude same-sex couples for marriage or marriage recogniti recognition. >> why can't it be the only purpose and effect is to validate what has been a historical practice? why couldn't it be said that is all they are doing? this historical practice is the one that utah supports. >> because, your honor when you have these two statutes into a constitutional amendment that is directed and excluding only one class of individuals, it is not too reaffirm, it is to exclude. if you follow the analysis, and even let me start with the text

of amendment number three. if you look at what they did, in the first part o what they did s they said only men and women can marry. but they didn't stop there. that isn't a validation. >> whether you draw the line, don't you in some cases you are over "-end-quotes of the cases yoas in thecases you may be unde and does that make it your rational because not everybody is in the same class if you will? >> your honor, let me try to answers to that question if i could. first of all, there is no question that there doesn't need to be a perfect fit. but the law is clear where they send the law both underinclusive

and overinclusive and that is exactly what we have here. it is underinclusive because it doesn't prohibit people people who do not want to procreate or can procreate. it is overinclusive because it keeps out same-sex couples who already have children or want to procreate. and if you look at the case, the court in that case in striking down a state law that kept people from getting contraceptives, they said when you have a law that is riddled with exceptions, the court cannot find a rational relationship or a nexus between whatever state purpose the court or the state is trying to assert in accomplishing that purpose, and i want to go back to the second part of the amendment if i could. the state of utah just doesn't

treat same-sex couples were second-class citizens in part a. it goes on to punctuate the point by saying no legal relationship will ever be recognized that gives the same rights and benefits that opposite sex couples get if they get married. and if you are talking about animus you are not talking about people being mean-spirited or it's not about people. animus is used by the supreme court of the united states and it is expressed in windsor talking about and in the proper purpose. >> we don't have a case do we? >> the judge shall be found that there is no animus if that is your question. our argument is just there is. >> that is a fact opinion issue. >> know it is not.

>> i beg to differ with you. you cannot take a legislator's statement on either side of an issue and tag the legislation one way or another. we've never done that in the past. >> what you can do is look at the text of the document. and if you simply look at the text of amendment number three, the end-to-end to end debate could exclude same-sex couples is inherent on the face. >> utah is taking the position it is a violation of the public policy to permit the same gender marriage. now they may be wrong. but does that express from the legal standpoint that there would be mean-spirited and bigoted? as we understand the term, it is a constitutional term of art

that has nothing to do with how good or bad. if a legislative body does something deliberately to hurt somebody that's one thing. if they do something that's for the good of the whole in their opinion not to hurt anybody it's another thing. we can't just ignore what the legislation is doing. we don't like that, so you're animus is bad. what policy has ever been allowed to overrule the constitutional rights in this country? >> could we take a poll as to whether it is applied in the state of colorado for example? >> absolute lee. >> could we declare as a matter of public policy and i think that is what windsor was speaking to when it said that it violates the fifth amendment and

through the 14th amendment speaking to the state it is violating the public policy. the problem that i have is that the arguments were made in windsor and they were considered and justice scalia spoke eloquently about what the law is not in their defense. but we have to look at the majority opinion. to argue that the public policy can trump a declared constitutional right would be a remarkable constitutional proposition not just in utah or colorado but anywhere in the united states. it would not only be remarkable, but it would be contrary to at

least two if not more supreme court decisions included. the supreme court has expressly held that an individual's constitutional rights are not subject to the public vote or the legislative action. >> what we are trying to determine is what is the constitutional right and what has been violated. i don't think that answers the question. before you sit down, i want to raise the ugly head of the article three jurisdiction, and i can juxtapose the case in the panel decision, we held that there was not an article three jurisdiction because they only sued the attorney general and the governor. and in that situation, those two individuals could not affect the causation for purposes of article three jurisdiction. why is that case any different than this one yes you sue the

court clerk but number two it would seem to me that created fundamental basis of concern about where the jurisdiction lies in the case. >> your honor, let me answer this a little broader. it is not just the general power of the government and the attorney general with regard to these matters. >> that's all that is in your complaint. >> it is what is in our complaint, your honor, but let me just say one other thing. what is also in this record is because it is within the motion that was before this court the state has taken the position that it does what the county clerks do, prohibiting them from granting marriage licenses and allowing them to grant licenses.

so it is meant simply a question of what general authority to these individuals have. it is the fact that they exercise that within the realm of the issues before the court which is doesn't violated the equal protection clause and due process x. if in fact it does and the attorney general and the governor as they did in this case basically allow the county clerks not to issue the license and to take the position waiting for the tenth circuit is not simply a general authority. >> that is a reasonable response but what i want to understand is what it be your position -- and i'm going to dig into this later but would it be the position that it would then authorize the

governor and the attorney general to control the action of the county clerks so this situation wouldn't be in some ways where they had a general authority and that was it. >> that is the position that gives the court's jurisdiction under article number three. i want to just and if i could, your honor, and ask that you would affirm the district court's opinion striking down these discriminatory laws that have no basis under any level of scrutiny because they are not the type that our constitution and would permit because as the court has said before the constitution doesn't allow classes between its citizens. thank you for your time.

>> we have a little bit of time left. >> we will give you an extra two minutes. >> i identified a couple of amendments from the panel. i did not finish my answer to you on your question about sexual discrimination. the problem was that there was an intention on the part of the legislature to disadvantage one class of people, one race of people and similarly in the sex discrimination context where there is no discrimination which is true here on the basis of sex, you have to establish the intention to one at the expense of another and there is no suggestion that the man on the definition of marriage is designed to advantage males over females or vice versa.

this could be a much larger conversation that the plaintiff's interpretation which has been picked up by all of the federal district courts to address the issue i would agree with you on that, but they are not reading the opinion. they are reading the opinion that doesn't account for, number one, the fact that it says this opinion as well as the conclusion is limited to those that have been legally married under the state law. second, the fact -- >> i hate to cut into your time. but on that point, there is a case -- there are plaintiffs from iowa who are on a married but they come to utah and they cannot be married.

the door has been lockedand the key thrown away and destroyed. that seems to me like dred scott where a citizenship even obtain citizenship in the wisconsin territories and then dred scott comes back and says i'm entitled to the cloak of protection of the united states constitution and they say no because under the missouri policy we will never allow you that. that sounds to me identical to this situation. >> congress deals with that problem in a section to which governs the same-sex marriage in one state and other states in the buck congress exercising its authority under the full faith and credit law says that marriage in oklahoma does not have to be recognized in utah, and that position was not challenged in this case. if that provision had been

challenged, then this would be a different case as to the people who are married in oklahoma but it doesn't challenge. there are so many other aspects in windsor that it left on the cutting room floor in the opinions written in the various district court. it's repeatedly said that marriage into the definition of marriage drew the distinction between the definition and regulatory authority they said the definition is virtually the exclusive province of the state and then at the end of the opinion, the court talks about again the importance of the state as mechanisms for developing community consensus about important social issues. if that's true then essentially, what the other side says is that

yes the court was telling the federal government you need to butt out of interfering with the states authority over marriage but they assume that at the same time with a wink and a nod the court was telling federal courts that they should interfere with and intrude into the states definition of authority over marriage and that makes no sense at all. >> submitted in the council. we will be in recess subject to the call. >> supreme court justices antonin scully and ruth bader ginsburg are the guests on the reports to discuss the first amendment and how freedom is defined. apply at 6 p.mlive at 6 p.m. onn network c-span.

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next a discussion on same-sex marriage with california proposition eight attorneys david and ted olson. they compare the civil rights movement of the 60s with the current gay writes movement and assess the various rulings surrounding same-sex marriage laws created this was part of a summit commemorating the 50th anniversary of the civil rights act. this from the lbj whether he in austin texas is about an hour. a pasta thank you for yourn 50 s remarks and support. in less than 50 years the fight for gay writes has gone from an york uprising in greenwich village sl known as the stonewall rebellion to the national movement.attle r at present, the battle for same-sex marriage is being waged in courthouses across the country. the two men who brought to the u.s. supreme court case to casei

against the proposition eight california ballot initiative that would have banned same-sex t ted olson and david have foughts against each other in the u.s. patent court case bush versus which gore which decided the outcome f of the 2,000 presidential for o the subj but they joined forces on the subjectec of marriage.el the first panel today we'll talk about how they came together. moderating today's session is the editor of the daily beast. ladies and gentlemen, please welcome john david bois and ted olson. ' which mac >> it is an honor to be with the

first panel such an extraordinary conference. and to have a conversation with two extraordinary gentlemen. at a time when the country often seems deeply divided into the polarization committees to people that fought in court set an example how you can come together from the position of the principles to achieve progress. so i am looking forward to a great conversation over the next hour. first there is no question that our country 50 years after the original civil rights in the midst of the new movement surrounding rights, marriage equality being at the current front of the fight. we have seen a change in the popular opinion around this issue over the last 20 years it would have been unimaginable. my first question is what parallels and what do you see between the current gay-rights movement and the civil rights movement 50 years ago.

>> like the battle for the racial civil rights, for a long time, people denied that this was a civil rights issue on constitutional grounds and grounds of tradition and of protecting the family all of the ways over the course of the country tried to deny one group of the citizens the equal rights but the declaration of independence and the constitution promises to everybody. one of the things that is different is how fast we have moved and how far we have moved so quickly. less than 50 years ago, three years after, a group of activists filed a petition with

the federal civil service commission asking to have the ban, the federal employment ban lifted or at least modified because at that time the federal government would not hire anyone who was openly or. you couldn't be an attorney from you couldn't be a postal service person. and they asked the civil service commission to change that role. so the service commission refused. and so, we have gone from a period of time in which you couldn't be employed by your own government because of your circumstances, and at the point where even almost 20 years after that it was still a crime in texas to engage in homosexual conduct. certainly you have gone from a time when it was criminalized to

the point that we are on the verge of establishing true equality for this group of american citizens and as we have for the senators before them. so i think that parallels are how the same kind of arguments are always used to discriminate and justify the discrimination and part of the same that i think has been very satisfying has been to see how fast we have moved away from that. once this has been exposed to the light of day part of being a good lawyer is to understand what the best argument is for the other side, and i'm usually pretty good at bats. and even in bush v. gore -- this is a case in which the other

side doesn't have an argument. we have a bumper sticker that says marriage is between a man and a woman. that is the question, not the answer. >> are there any differences between that civil rights movement 50 years ago that now seems self-evident and the civil rights movement or is it just a continuous tractor on that effort? >> i think david and i see it as a part of a continuum. the supreme court has said that we do not tolerate putting classes of our citizens into boxes or groups in which we can unite them equal rights and equal dignity. that is what we have done with our and citizens and we are recognizing now throughout the country that that is a cruel and harmful discrimination to think about marriage for example

because we have been so much involved in that. the supreme court has said 14 times over the last hundred 50 years of marriage is a fundamental right and it is a matter of liberty. it is a matter of privacy. it is a matter of association. it is the most important relationship in life is a pain court has said. so, in many of the state including those california have drawn a line of defense around this day and citizens and said to them you may not have in your relationship the most important in life. your relationship is not as good as the relationship with heterosexual individuals to marry the person they love. proposition eight said marriage will only be recognized between a man and a woman. only those kind of marriages will be recognized or invalid. so that was telling and citizens

and everybody in california that those persons are different. they are less worthy and may not have the same relationship their children 37,000 children being raised in gay households in california are in a family that is being discriminated against and by california supreme court called that a second-class citizen. that is what we were doing to the african american citizens. that is what over the years we have done to women and marriage relationships and other individuals in the society because they are a group that we want to put and classify as different. what david and i have been fighting for a long with many other people of course is for us to eliminate that the stage of discrimination against citizens who are just the same as the rest of us that have the same aspirations and the same dreams. >> you spoke briefly about the fight in california which was

successful and preceded to some extent the documentary being made but now there is a new one not just for the different cases around the country but one that you are involved in. you would be arguing that in m may. the symbolism seems rich because the decision of 1967 that banned interracial marriage. to what extent does that venue, that history in over the case and what does that inspire you and clarify? >> the case of 1967 of which the supreme court held unconstitutional for the state to ban interracial marriage was an essential part of what we were arguing because what the supreme court said is that it is not a question of interracial marriage it is a question of marriage. just as it wasn't a question of same-sex it was a question of marriage and are you going to

deprive any class of citizens of the right to the most fundamental relationships and i recall they said a state cannot do that. and i think the symbolism of virginia is important because it was a source, because it is a state that has one of the most discriminatory constitutional provisions with respect to gay and lesbian citizens. .. gay and lesbian citizens far beyond what was the case in proposition 8. yet at the same time it is the home of thomas jefferson and patrick henry and so many people who have contributed so much to the principles of equality that we're all fighting for. so i think the symbolism of trying to go to the home state of jefferson and patrick henry and many, many

others that were our founders and to try to implement the principles and to try to implement the principles that they articulated so eloquently more than 200 years ago in then face of this constitutional ban in the current virginia state constitution is not only important to the state and the south is an important region of the country but in addition the symbolism was something i think we are all drawn to. >> i just want to add one more thing. very seldom can i add anything to a david says that we are arguing this in richmond, virginia which is the home the commonwealth of virginia the home of the author of the declaration of independence. james madison's home the principle author and i think most people will agree the united states constitution will

be at the home in richmond of john marshall the leading chief justice for 34 years, who stands more than anyone else for the constitution for the citizens that we represent in virginia to live in the commonwealth of virginia to look all around them and to see those famous people and to realize that they are not yet being treated equal. that constitution that david mentions says that not only can they not marry. if they were married somewhere else legally their marriage won't be recognized in virginia and at the interim to a domestic partnership or anything that approaches marriage those contracts will not be recognized in virginia. i am in virginia now and i have been since 1981. i feel very strongly and david does too at a pregame make a difference in virginia and maybe that will be the case that goes on to the united states supreme court that will be so important for this country.

>> and beyond the symbolism which is so clear and inspiring, let's drill down on the legal theory at the case for you. this is a case as a loving v. virginia that has precedence in the supreme court that is rooted in the 14th amendment. build that historic argument in the precedent in the constitutional amendment for the audience and the people watching. >> we are talking about the civil rights act of 1964 grew out of a large part the 14th amendment of the constitution of the united states which of course brought the civil war which guarantees that no state may deprive persons within that state of the right to equal protection of the laws in due process of the laws. the united states supreme court says, has said as i said many many times marriage is a fundamental right therefore you have a right not to have that right taken away from you, that

in the mental right taken away from you. that's the due process clause and equal protection clause guarantees with the supreme court has said the right to rejection of equal laws. that is what the supreme court said in the 19th century. so citizens who are gay and lesbian are being denied the fundamental right to marry and they are being denied equal protection of the laws, the protection of equal laws with respect to marriage and that takes away their dignity as justice kennedy has said three times now in lawrence versus texas case involving conduct and roemer involving colorado legislation that took away the protection of laws that were preventing discrimination and in the windsor winter case from last june with respect to individuals under respect of the defense of marriage act. you are taking away the persons decency, their dignity and

calling them different. those all relate to those fundamental rights of due process of laws and access to equal rights, access to the fundamental rights in this country. that's the gist of our constitutional argument and we think it is very simple and we think that it's an enormously significant that since the decision of the united states supreme court last june, federal judges that have dealt with this issue in texas, in oklahoma, in colorado, the district court in virginia and ohio and i think michigan and maybe another state or two that i'm leaving out. every single one of those federal judges have recognized the rights of these constitutional rights of our gay and lesbian citizens with respect to the issue of marriage unanimously. that's enormously significant. >> david i mean this is really really a president and these are

judges appointed by different presidents and different reaches reaches -- regions in the country at a time when marriage equality over and over at a tipping point. judicially it has been basically a clean sweep. that significance may be hard for folks to appreciate in present times. >> it's hard even for a lawyer. there are a few principles that you can get five or 10 lawyers or judges to agree with it completely. here you have had more than 30 federal judges who have considered an issue that gay and lesbian rights, since last june and every one of them appointed by republicans, appointed by democrats, pointed by all of the last four or five presidents in every area of the country, in texas to utah to ohio to oklahoma to michigan north,

south, it east and west every political affiliation they have all ruled the same way. everyone of them has ruled that marriage is a constitutional right and you cannot deprive individual citizens of that right based on their sexual orientation. if that's extraordinary to see something like that move that fast and with that universality and i think what that reflects is what i said earlier which is a matter of principle, as a matter of legal principle. there simply are not true arguments as illegal if -- matter of legal precedence. the argument under under the presidents of the united states supreme court makes it absolutely clear that the state cannot deprive people of the right to marry in the supreme court has ruled some of the cases that ted is talked about. you have the state of wisconsin who said that if you have abused

a prior marriage and you are a child-support scofflaw you can't get a marriage license for another marriage. a rational state approach. the supreme court says that may be rational but that is unconstitutional because marriage is such a fundamental right. the state of missouri says we are not going to allow imprisoned felons to marry. it's disruptive. they can't be together anyway. there is no procreation impossible so we are not going to allow them to marry. the united states supreme court says marriage is such a fundamental spiritual right so inherent in the nation -- nate nature of liberties that this constitution agrees. loving courts say you can't deprive people of the right to marry based on race. lawrence against texas says that

people regardlesregardles s of their sexual orientation are entitled to constitutional protection. you put those presidents together and there aren't two ways that you can come out as a legal matter. people can have different points of view as a matter of religiosity or policy or how they feel about people but as a matter of legal theory you can't come out to two different ways on this issue. i think that is what you are seeing in the federal district judges who have considered this issue. >> when the supreme court does decide to take this up again if they decide to take this up again it will be awfully hard especially with doma and windsor do not take a stand. >> we believe so. the loving versus virginia case at that time 16 states still prohibited inter-racial marriages. that was 1967. that means the president's

mother and father tried to move to virginia to be married and that year they would have been guilty of a felony which is a five-year prison sentence if they dared to marry someone of different race. now the supreme court decided unanimously that violated the constitution. today most people don't believe that could have been the case in the united states of america. and attitudes changed rapidly but not immediately. over time people have changed. the same thing is happening with respect to according to dignity to gabe and lesbian brothers and sisters. when we started this case in may of 2009 took an average of the national polls. there was a margin of 17% difference. most people opposed the rights of gay and lesbian citizens to get married.

there was a differential between those who favored it and those that were against it of 17 points. last june when the supreme court decided the marriage cases that the court decided the polls had changed by a margin of 25% so it was a present or in favor and now it's up to 10 or 11% in favor of allowing gay and lesbian citizens to marry. that's only five years. it used to be just a few years ago it was a wedge issue in this country in political elections. now the people that might be opposed don't want to make it a political issue because they will lose. young people under 30 is 75 to 80% of respect the rights of gay and lesbian citizens to get married so this country is changing very very rapidly. to respect their neighbors, their friends who are gay.

>> and yet there is no question there has been a sea change in its been rapid and perhaps unprecedented and i would like you to speak to that but in contrast to 50 years ago certainly it's clear the legislators aren't waiting on this. i mean in the civil rights bill that lyndon johnson passed through his great skill as a legislative negotiator it was a bipartisan edward derksen's key role with hubert humphrey. if you look at the house of representatives and a half believe only two republicrepublic ans support marriage equality in only six support the nonemployment discrimination act so what does that say about the current state of our politics and the current state of the legislative will and what has gone wrong with the republican party basically? [laughter] >> david will speak for the republican party. >> we aren't defending the republican party entirely.

one of the things to remember is that the civil rights act of 1964 came a decade after the supreme court had decided round against board of education. i think that you didn't see the legislature leading on this issue in the 1950s or the 1940s. >> absolutely true. >> when president reagan desegregated the forces. that was an act of presidential leadership. it was not something he ever could have gotten through congress at that point in time. i am quite hopeful that you will see bipartisan leadership in the legislature on this kind of issue as we go forward. in addition, remember that while this case was pending the legislature repealed "don't ask don't tell" so i think that you

are seeing the beginnings of legislative recognition on this issue but legislative recognition almost always is a trailing and lagging indicator. it takes executive leadership. it takes six executive leadership and to some extent it takes leadership of the people to tell the legislature that they are behind if they want to be a leader of the people. it's. >> it's a reminder to all of us that when we read history it looks cut and dried but it's complicated and difficult. ted for you your partnership that think it's been such a powerful and hopeful symbol for so many people because you have been able to come together on issue principle that you believe you are consistent with your philosophy to move the ball forward and it's a different kind of collision. it's the kind we don't see an congress and you are right

congress has been a lagging leader traditionally. ted i'm interested in your perspective from within the conservative movement. you have been with the reagan administration the federalist society. no one would choose to -- you're conservative issues. that is what i would love for you to reflect on is the pushback you have gotten from one-time allies and how you answer that. >> well, the process is changing and i felt very strongly when i was approached about the possibility of representing gay and lesbian californians. i grew up in california. i felt it was wrong what happened with proposition 8 and i was glad to have the opportunity to do this but i also felt that i might be very suspect not just by conservatives about what is ted olson doing and i don't mean to exaggerate myself here but i knew there was going to be some of that then and knew there was

going to be skepticism and criticism from gay and lesbian organizations and from the left. what is he up to and so forth. that is one of the reasons why david and i came together on this. i thought it was extremely important that we present this as not a left or right conservative or liberal issue but it was an american constitutional issue. [applause] i felt that if the two of us who have been on opposite sides in the bush v. gore case because lots of people watch that legal issue and then could see, it gave us the opportunity not only to reflect opposite parts of the political spectrum and i won't say opposite poles because david and i are awfully close on an awfully lot of issues.

but the american people can see the two of us come together we are in a way representative of the opposite ends of the political spectrum and that people would be curious about why we did come together and what we had to say. it would give us an opportunity to help educate the american people and helped persuade the american people that this cause was just. with respect to conservatives, i felt that if i could just speak to conservatives and talk about the issues among the other things that we talked about. i wrote a piece that was on the cover of "newsweek" that came out the same day that we started or the same week that we started our trial in san francisco. i called it the conservatconservat ives for gay marriage and i made the points there that are very fundamentally true. marriages are coming together of two individuals who love one another who want to build a family, who want to build a relationship in the community.

they want to be part of the community. they want to be part of the school system. they want to be part of municipal government. they want to pay taxes and they want to be respected as a stable conservative part of the community. what could be more conservative than back? and marriage between those loving individuals damage heterosexual relationships or does anybody think that a man and a woman or not going to get married because a gay couple gets married next-door or down the street or they will refrain from having children or they are going to somehow get a divorce? no, that's nonsense. as david says it's the bumper sticker and we have a lot of hombre stickers. yes i did get some pushback from conservative community. >> tell me a little bit about that pushback. >> i would get some messages. i would give some people that were reported in the press saying i was at traitor to my principles and so forth but if you have principles then you have to be true to your

principles, not to what people characterized as your principles and not to have other people identifying your principles for you. so i felt and i have to say for the pushback that i've gotten and i do not want to overstate bat, it's been in some corridors a lot of people might disapprove but haven't said very much. an overwhelming sense that i have gotten this country is we are doing something that's important to america, for america and for the values of america and people come up to david and i and thank us for our role. it might've been a modest role but it was a role somehow in changing how things are going. i have tried to reach out to conservative media outlets to speak to conservatives. i have tried in every way i possibly can and i'm totally convinced that the time is coming very rapidly. if you speak to young republicans are young conservatives, it's over.

that issue is over. there are people that feel strongly because of their religious background and so forth and they metis take some additional convincing but the time will come. my mother is 94 years old and a strong conservative. she told a reporter who got ahold of her -- [laughing] >> i apologize. >> my mother is not afraid of anything. she said if they would just listen, if they would just listen they will agree. >> god bless your mom. [applause] >> so let me ask a tough question at this point with the sea change that has occurred the people who are hunkered down in opposition, it's one of those tough questions. george wallace would always say i'm not racist. i believe in the constitution and states rights. are the people who are deeply

opposed to marriage equality and at this point is it fair to call them prejudiced? is it fair to call them bigoted if they hold those views? david? >> i wouldn't want to call somebody bigoted. i think it is fair to call them prejudiced. that's almost logical conclusion it if you are in favor of depriving certain citizens of certain civil rights i think that can only be described as prejudiced. i think you have got to draw a distinction between what people believe and practice in terms of their own personal life in their own personal religious beliefs and what they try to do in terms of imposing those beliefs on the rest of society. we have a first amendment in the constitution that guarantees everyone freedom to exercise their religion but at the same time that same first amendment forbids anyone from trying to

impose those religious principles on the rest of society. so while i have enormous respect for people's individual religious beliefs and believe that they have a right to hold those beliefs, to practice those beliefs in their own personal lives and their own personal houses of worship but they cannot take those beliefs outside that house of worship and into the congress of the united states or into a state legislative body and impose those beliefs on other people. [applause] >> ted. we are still very much and you know that -- mid-debate and some people are holding on tight and you see some conservatives and one thing you see a lot is that liberals are holy in people and it's an attempt to make people care. this past week the ceo of an internet company mozilla

resigned because it was done that he gave $1000 to the prop 8 effort. how do you navigate that space when you talk to your conservative colleagues who may be raising these concerns? >> well i think in the first place i think that was a situation that was maybe unique to that company because of where it was, its employees and some of its contractors and customers and so forth. as far as the fact that the man made a contribution to support proposition 8, six or seven years ago that's the time when when the president of the united states was opposed to same-sex marriage at the same time. people have the faults with respect to that. i think that was an unfortunate situation but i think we could make too much of that. the major gay and lesbian organizations were not crying out for him not to be able to run that company and that was a matter of the company. what i feel about this in david

has written about this and talked about the fact that when we receive of other people as different than ourselves it's very easy to discriminate against them and to say that they should be treated differently because they are different. once we realize that they aren't any different then it becomes very difficult to discriminate. so with respect to those issues, we strongly feel we have made this point throughout the case that there are citizens in california that voted for proposition 8 because maybe they had a strong religious convictions and maybe they didn't understand the issues. maybe they hadn't been fully educated. the trial that we had in san francisco, 12 state trial with experts from all of the world that works claiming the history of marriage, the history of discrimination in this country, the damage is done by stigma, the raising of families, the raising of children and the happiness that comes from marriage all of those things

were in education duest too. it was an education to the gay and lesbian activists who were with us and in the trial. they kept coming up to us and saying i didn't know some of those things. so it was an education. so when justice ginsburg in one of the cases that she decided said we have come to know more about ourselves and know our fellow citizens that changes our perspective and it changes the way we think about our fellow citizens. this issue of bullying i think it's very important for people. that is why david and i may be can be spokespersons on this thing because we are talking to people and saying we don't want to jam these views down your throat but we do want you to understand what this country is all about. and i want you to ask david about his cross-examination of the leading expert, the leading expert on the other side of this case it was an advocate for only

heterosexual marriage and i will let david explain it. he turned this whole thing around. >> is gets to the question of harm and also how people's hearts can change and sometimes the blowback that occurs after that. tail -- tell the story of david blankenhorn. >> david mike kinnaird was the chief expert for the other side in a proposition 8 case and he was a longtime advocate of limiting marriage to a man and a woman. but he was somebody who was a serious person who thought about issues and during the cross-examination which was lengthy and sometimes quite bitter, we took him through what damage this kind of discrimination did to people and he admitted that it caused

serious harm both economic and emotional to gay and lesbian couples. he admitted that it caused great harm to the children that they were raising and he finally admitted that it was inconsistent with the american ideals of equality and at one point, at the end of the cross-examination agreed that we would be more american that day we permitted same-sex marriage. [applause] >> that's a good lawyer. and while he didn't completely change on the stand thinking about it a month after the trial led him to write an op-ed page in "the new york times" in which he said that he was wrong and that he believed that everyone

should have the right to marry the person that he loved and he was sorry for the pain, the position that he had taken and others had taken in the cause of his fellow citizens. this is something that people's views even advocates, even harsh advocates, their views can change and i think what you are seeing in this country is the openness of people to think about issues and to change. i think that if ted and i have made a contribution to this it has been in part by having the ability to make people listen. the odd couple aspect of it sometimes is overblown but it did get us a lot of attention and the ability to talk to the american people.

adlai stevenson's promise to talk sense to the american people did not work out perfectly for him at the presidential level. but i think that we have had a lot of success on this issue talking sense to the american people. on the mozilla thing i think the right thing is not to attack or criticize people. it's an attempt to show them why they are wrong. you won't always succeed but you will succeed as david blankenhorn's example shows. you can succeed and my personal religious faith is one that believes in redemption and i would say that this is a country that depends on redemption. all of us have discriminated at various times and people as old as ted and i are, we grew up in

an air of discrimination and an era in which we were not nearly as sensitive as we should have been two extended discrimination and the pain and damage caused. i think that we all need to be sensitive and we need redemption and everybody else does too. we need to bring people and. i wouldn't call it bullying but not attack them but try to reason with them. >> only to add one more thing, one of the things that we learned or among the things that we learned during the course of this case and during the course of the trial the experts talk about discrimination and the effect of discrimination on people's lives and the victims of discrimination. it taught us more about racial discrimination and religious discrimination. discrimination based upon characteristics that people have no control over. i think i learned an enormous amount.