swer on that and if i may turn to the wait-and-see for a moment wait and see by itself is never being considered a legitimate justification under the 14th amendment. ..

there have been trials about adoption bans. social science consensus that there is nothing about the sex or social orientation of the parent that will affect child outcomes which is not just research about gay people but about the effect of gender. goes for 50 years. >> you are quite right that the consequences of waiting are not neutral. on the on the other hand one of the things that is truly extraordinary is how quickly has been the acceptance of your position across broad elements of society. the situation is characteristic.

the next several quickchange , closing debate this institution if it's imposed with respect to me one thing that separates me from the states that we are talking about here is this amendment that nearly largely shuts down the process and makes it is generally difficult. the opinion poll is not a measure in any way of legislature in terms of improving an amendment to go after the voters that there are serious structural problems that did not apply in a place in terms of

acceptance, when i think about acceptance i think about relation as a whole and that there are places where there are no protections are virtually no protections for people in employment and parenting initiative petitioners are not allowed. they have heard of their adoptions. i am concerned about the wisdom of this court in closing to the constitution a requirement of action which is unpalatable to any of our citizens. they are not likely to change their view about what marriage consists of. and we -- were the states to adopted by law they could make exceptions to what is

required for same-sex marriage, who has to honor it and so forth but once it is made a matter of constitutional law those exceptions -- for example is it conceivable that a minister who is authorized by the state to conduct marriage can decline to marry two men if indeed this court court holds that they have a constitutional right to marry? is it conceivable that that could be allowed? clicks your honor, of course the constitution will continue to apply. they have those protections. >> but to this day we have never held there is a constitutional right for these to the marry and the minister is to the extent conducting a simple marriage

, an instrument of the state. i do not see how you could possibly an octave up possibly allow that minister to say hello only marry a man or woman which means you would -- you could have ministers who conduct real marriages that are simply enforceable at the national cathedral but not a st. matthew's downtown because that minister refuses to marry two men and therefore cannot be given the state power to make a real estate marriage. i see i see no answer to that. i really don't. >> counselor, there have been antidiscrimination laws in various states. >> antidiscrimination laws regarding a people. >> correct. >> in any of the states have

they been forced to do gay marriages? >> of course not, your honor. >> they are laws, not laws, not constitutional requirements. that was the whole topic of my question. the state can say, yes, two men can marry. ministers who do not believe in same-sex marriage will still be authorized to conduct marriages on behalf of the state. you you cannot do that once it is a constitutional prescription. >> under the first amendment a clergy person cannot be forced to associate. since there were several other questions -- >> not being required to officiate, just not given the states power unless he agrees to use that power in accordance with the constitution. it seems to me that you have to make that exception. you cannot appoint people who will then go ahead and violate the constitution

clicks i think if we are talking about the government individual cleric or judge authorized in a different matter that they are going to have to follow through. once again it did not pass a law. >> it was a state law. >> you can make those exceptions. if it exceptions. if it is a constitutional requirement i do not see how you can. every state allows ministers to marry people in their marriages are effective understand law. for example there are many rabbis that will not conduct marriages between jews and non-jews. against discrimination.

the powers and privileges of the state even if they have that will, many many rabbis will not do that which is precisely. >> congress shall make no law respecting the freedom of religion. >> yes. very briefly. >> you agreed that ministers will not have to discuss same-sex marriages. >> that is correct. if i may reserve my time it is not about the court versus the state but the individual making the choice clicks thank you, counsel. [inaudible conversations]

[inaudible conversations] [inaudible conversations] [inaudible conversations] >> chairman, would you chairman, would you like to take a moment? >> i will. thank you, mr. chief justice. >> if the chief justice of the court is ready. >> we're ready. >> rather refreshing actually. >> mr. chief mr. chief justice, may it please the court the opportunity to marry is not human dignity. the dignity of these couples , it denies the birth

couple and the children the stabilizing structure the marriage affords. what we have been discussing this morning so far is whether this issue of whether this discrimination should persist is something that should be left in the political process or whether it should be something decided by the court, and i would like to make three points about that. first,. first, it is important understand this court if it includes this issue should be left to the political process the demeaning second-class status that they now inhabit and in states that do not provide for marriage is consistent with the protection of the law. second to the extent that the thought is that this could be left to the particle put in the process because this issue will take care of itself over time because attitudes are changing no one can see the future perfectly.

third, i want to just expand on what was said. >> you could he could not have said the same thing ten years ago.

pretty people as our families and raise families participate fully in their communities without fear. two things go from that, i think. that has that has brought us to the.where we understand now in a way you only did not fully understand and warrant that gay and lesbian people and gay and lesbian couples are foreign equal members of the community. what what we once thought of as necessary and proper reasons for ostracizing and marginalizing day people we now understand do not justify that kind of impression. the difference of course, the state cannot intrude on

that personal relationship. it seems to me it is different in that the argument is that the state must sanction must approve their relationship. they are two different questions. >> it is different. i agree. it leads to the second thing to put gay and lesbian couples in a position for the first time in history that they are able to lay claim to the promise of the 14th amendment in a way that was impossible when they were marginalized and ostracized. you are right, you are right, this is about equal participation for participation on equal terms in a state conferred status, state institution.

the court has raise this question about whether this is a fundamental change in marriage and the answer to that question is that this case can be decided by thinking about marriage in exactly the way the states, respondent states and other states to find marriage now and it is important to think about this way. heterosexual couples can enter marriage and have families through biological procreation families through assisted reproduction, families through adoption and not have families of all. >> the ones who are the obligations of mutual support responsibility and the benefits running marriage. and certainly childrearing

is bound up in that. quite different than what my friends on the other side -- >> let's think about two groups of two people. the first is a same-sex couple who have have been together for 25 years and get married with changes to state law or court decisions. the second unmarried siblings over the other for 25 years confidential relationship is the same. they share households expenses and chores in the same way care for each other the same way. any reason why the law should treat the two groups differently? >> the law allows 100% of hundred percent of heterosexual people to

answer to a marriage consistent with their sexual orientation. in the state it is for been. a marriage consistent. >> as far as the benefits of federal law confers the effect on state taxes. >> well, not entirely sure that there would be. more fundamental, and enduring bond between two people the back to the. this is important. i understand that respondents responded that they want to exercise them to caution because concerned about the welfare of children raised in same-sex marriage households. a quite significant problem with that rationale. hundreds of thousands of children are being raised in

same-sex households. all the evidence shows you that there is not a problem. the states argument is quite ironic in this respect clicks based on your statement all the evidence shows there is a problem. clicks on the leading organizations have said there is a consensus. >> on the briefs contradicted that. quakes beyond that the more fundamental.that i'm trying to drive that is you have hundreds of thousands of children raised in same-sex households now. the conclusion that those hundreds of thousands of children don't get the stabilizing structure in the many benefits of marriage. >> we have the concession from a friend that clergy

will not be required to perform same-sex marriage. there will be harder questions. what a religious school that has married housing be required to afford such housing for same-sex couples? >> i would like to make three points about that. what the states must do one of the 14th amendment and when you get to a question like the one your asked that will depend on how the states work out the balance between their civil rights laws whether they decide they will be civil rights enforcement of the discrimination based on sexual orientation or not and how they decide what kinds of accommodations you are going to allow under state law. they they could well -- different states constructive balances clicks

it is a a federal question if we make it a matter of constitutional law. but the but the question of how states use their enforcement power is up to the states. >> you have enforcement power, to. >> that is certainly true because there is no federal law now generally banning discrimination based on sexual orientation. the third topic is that this issue will arise no matter which way you decide this case because these questions of accommodation horizon situations and they have arisen many times. arise out of the commitment ceremony. you will need florists. clicks the court held the college was not entitled to

tax exempt status and impose interracial marriage are interracial dating. with the same apply to university or college? >> i don't i don't think i can answer that question without knowing more specifics but it will be an issue. i do not deny that. it will be an issue. >> one final question. i am interested in your comments the solution have to find a fundamental right arrows terms. a terms. a lot of the questions we're asking your colleague in your earlier part of the argument had that in mind, i think. what do we do with the language? >> forgive me for answering the question is why. we have not made the fundamental rights argument

and are not sure it would be appropriate. all you think there is a profound connection like the ones that have been posted in the question, this sounds and equal protection as we understand it the is the question is equal participation in that can stick -- the state conferred status institution. if i could in the time i have left i would like to suggest what the respondents are ultimately saying to the court's with respect to marriage they are not ready. and yes gay and lesbian couples can ultimately live in society and raise children and participate fully as members of the community. marriage, though not yet. leave that to be worked out later. the petitioners these gay

and lesbian couples -- >> for not. that is not what they are saying. they are saying. they are saying leave it to the people to be worked out later. what these gay and lesbian couples are doing is laying claim to the promise of the 14th amendment now and it is emphatically the duty of this court in this case as it was in lawrence to decide what the 14th amendment requires. what. what i would suggest is that in a world in which gay and lesbian couples openly is our neighbor stories the children side-by-side with the rest of this toy contribute fully as members of the community and it is simply untenable untenable to suggest that they can be denied the right to equal participation in institution of marriage or that they can be required to wait until the majority decides that it

is ready to treat gay and lesbian people as equals. game lesbian people are equal. they deserve equal protection of the laws and they deserve it now. thank you. >> thank you. mr. byrd. clicks thank you, mr. chief justice. may it please the court, court, respondents are not saying we are not ready. they are echoing questions that justice breyer was asking how to define marriage, about who gets to decide that question the people acting through the democratic process with the federal court and we are asking to affirm every individual fundamental liberty interest in deciding the meaning of marriage in this whole case turns on the question -- >> know what is taking that away from anybody.

refuse not to marry. talking about the fundamental liberty interest clicks i thought i i thought i heard the answer to the question being given 2000 years of the democratic ballot box quite simple. what i heard was marriage is fundamental. certainly that is true. and marriage as the states administer it is open to vast numbers of people who

both have children, adopt children, don't have children call of the place. there is one group of people whom they will not open marriage to. they have no possibility to participate in that fundamental liberty people always senate certain religious groups i believe they sincerely think it. a purely religious reason on the part of some people and when i look for reasons three, four, and five i do not find them. what are they? therefore i am asking a long

question that gives you an opening to say what those reasons are. >> those answers are not our answers. number one is the marriage is the institution did not develop to deny dignity what to give second-class fast anyone they would now be a test to each other on the other side here all about love and commitment and we can agree that is important. but the state has no interest. trying to solve a social problem whether is no marriage we would not solve it by saying the type of people who identify who they are emotionally committed to and recognizes relationships clicks i understand the principle argument that same-sex marriage does not

advance the state interest in regulating procreation. let's assume that is so. obviously same-sex partners cannot procreate themselves. but is but is there in addition to that are you saying that recognizing same-sex marriage will impinge upon that state interest harvested interest in regulating procreation. >> how could that be? it would still be of benefit we are not taking away anything. heterosexual couples would have the very same incentive to marry come all the benefits that come with

marriage that they do now. >> justice kagan and ginsburg, it has to do with the societal understanding of what marriage means. this is a much bigger idea of any individual couple. when you change the definition of marriage to d-link the idea we are binding children with their biological mom and that has consequences. for example on any level how many married couples the fathers reap the benefits and then walk away from their children? it is not that the institution alone does it and that without it that father is going to stay in the marriage. he made a choice. it should be gender-neutral. some others do the same thing.

my.is that i am not sure how i get to the.that justice breyer is making. how does withholding marriage from one group same-sex couples increase the value to the others? >> justice, there justice, there are all kinds of societal pressures that are already delinking the reason that the state advances for marriage. >> excuse me do you have to answer that? is it important to show that it will harm marriage between a man a man and woman if you allow to men or women to marry? i thought the bird was simply to show that the states reason for this institution is the reason that has nothing to do and applicable to same-sex couples.

>> you are right and i want to answer your question quakes i do not think that is right. before something is fundamental to society and individuals and exclusion of this kind could be made, the state needs some reason for that exclusion. a real opportunity to tell me what that is. the reason for the reason for the exclusion rather than the reason for the noninclusion. >> first, first, it was not a reason for an exclusion but the definition to solve this particular problem. the reason why there is harm in people's minds of marriage and creating children have nothing to do with each other than what do you expect? more children outside of marriage. i want to give you a hypothetical. >> you think that is what it would do? allowed same-sex marriage one would be announcing to the world that marriage and

children have nothing to do with each other? >> out in the not in the abstract quakes not in the abstract. >> we are talking about something that will change the meaning of the institution over generations. you have things like no-fault divorce it has consequences over the long-term. think about to couples ideally situated. one grows one grows up believing that marriage is about keeping that couple bound to that child forever. the other believes that marriage is more about their emotional commitment to each other and if that commitment phase they will not stay the other. a reasonable voter to believe there would be a different outcome if those two marriages were influenced by those two different belief systems. ideas matter, your honors. the out of out of wedlock

birthrate. >> that assume same-sex couples do not have the purpose which is the whole. same-sex couples, of course we understand the nobility and the sacredness through marriage. we know we cannot procreate. the other attributes of it in order to show that we too, have the dignity. but you will argument in brief, and the justices quite correct you are saying that this harms conventional marriage, the argument you made in your brief as i understood it. >> justice kennedy, to be perfectly clear the state of michigan values the dignity and worth of every human being the matter their orientation or how they live their life. when you change something as fundamental as the marriage definition, the dictionary definition which has existed for millennia and apply that over generations to those changes matter, and it is not unreasonable.

>> the fact is very high percent of opposite sex people do not have children, and everyone knows they cannot. a high certain percentage of same-sex people get married and do have children. where is this going? what are these couples to do? how do you get from what i just said? some kind of rational or important distinction. >> we are concerned about all the children of opposite same-sex and same-sex. 73 million in this country. if the war and scott thing in the constitution a new definition of marriage the reduces the rate because of the different understanding. >> what evidence? >> a reasonable voter looking at those two

couples: believing marriage is all about staying with their kids and the other believing it is about emotion and commitment could have different results clicks the problem, even under a rational basis standard do we accept a feeling? i mean why is -- why -- and i think the justice but the argument quite clearly something as fundamental as marriage why would that feeling which makes no logical sense control our decision-making? clicks it does not make any logical sense to you. they might be different consequences. >> people who get into marriage think that. heterosexual couples. >> everybody has their own vision of what marriage is. what the state confers is certain obligations, and they are willing to accept those.

whether or not that couple stays together, they are bound to that child. child. they must support the child care for hear her. some people choose voluntarily meaning they just choose because they do not want to come up talk with that happens whether it is same-sex or heterosexual. >> you are describing different ways people think about marriage and certainly it is a harm to a child of an opposite sex couple if they get divorced as opposed to staying together forever and we can all agree in general what we want is to stay bounds bound to the biological mother and father whenever possible. what i hear -- >> they should be bound to their parents because there is a lot of adopted children that are not thinking of biological. >> for sure. that is completely different that is a situation where the child does not is not have a biological mother or father for whatever reason which is a different state

interest quick suppose there is a stay with the procreation centric view of marriage of the kind you are talking about. emotional commitment and support all of these the state thinks and at the purpose of marriage, and they want their marriage licenses to be addressed fully to the things which service procreation purpose. and so they say, well we are not giving marriage licenses to anyone who does not want children. when people come and ask for a marriage license they asked the simple question. if the answer is no space has no marriage license for you. would that be constitutional? >> not against the states interest as you describe it. the best way to promote this procreation centered view of marriage is to limit

marriage to people who want children, so that is what it does. would does. would that be constitutional? >> even people who come into a marriage. >> what is your answer? clicks when to be constitutional? i think it would be an unconstitutional invasion of privacy. >> to ask if you want children is an unconstitutional invasion of privacy? >> i think that is the case. >> a 70 -year-old couple abcaseven you don't ask them any questions and you know they are going to have any children clicks a 70 -year-old man is still capable of having children. leaving that aside you are talking about an issue on rational basis. over inclusiveness is not something you need to worry

about. even if about. even if you apply some type of titan scrutiny can't or won't have kids and at the inclusion of those couples because of this idea. >> he said rational basis applies in this has been decided, if so wants the procreation centered view of marriage that it is going to exclude people who do not want children people who cannot have children, and the question is, would that be constitutional? is seems it seems to me that it flows directly from your argument and would be constitutional. the problem is we hear about those kind of restrictions, and every single one of us said that cannot be constitutional. i i am suggesting the same might be true here clicks that cannot be constitutional. rationally applied for millennia clicks as you have described it so

procreation centered that a state can exclude everybody they does not serve that purpose for that reason alone, and that is the reason you have given clicks that is the primary interest. so concerned interest. so concerned about the overinclusive this and under inclusiveness suffers from that same flaw. the plaintiffs definition excludes relationships families that have been discussed this morning that might benefit from having state recognized marriage and includes people who have no emotional level commitment toward each other and get married for other reasons. if if those are the reasons why the state -- >> marriage provides a lasting bond between people who love each other and make a a commitment to take care of each other ucla and lets that logic can be limited to two people who want to have

sexual relations and would not extend to larger groups the one i mentioned earlier two-minute to women will i and it would not extend to unmarried siblings who have some sort of relationship clicks over and underinclusive. my.is that the state does not have an interest in emotion at all. if we have a close the government does not regulate when that begins or ends. the government sole interest is not about love. >> i would like to direct that idea. i'd like to accept that kind of definition and.out many people want children. it is -- am not certain works, but i will think about it. the other thing you will have a view on it will be helpful there is an argument being made if not by the government, and i

government, and i would like your response to it, after all marriage is about as basic a right is there is, that the constitution and amendment 14 does say you cannot define -- deprived person of liberty without due process of law and that to take a group of people were so little distinguishes them from the people you give liberty to, at least in terms of a good reason and you don't let them participate in this basic institution, that violates the 14th amendment. the reason i am interested in that is we do not get into this more scholastic effort to distinguish between rational basis and middle tier and some higher tier and so forth. rights versus gay-rights.

we avoid that in this case. perhaps that is wise if not legally required which it may be. i would like your response to that aspect of the other side's argument. >> with respect to the right of privacy which you identified this court already answered that question in the majority opinion when you said the limitation of marriage clicks it was not a right to privacy. what i said was that the right to be married is is basically liberty, fundamental liberty not the right of privacy, the right to be married which has existed for all of human civilization, that is the right which is fundamental and therefore where state offers that to almost

everyone but excludes -- from repeating myself. i want that question answered to the best of your ability please. clicks the right to privacy interchangeably with the right you are speaking about. the limitation of marriage has always been thought to be fundamental. under the test you could change. >> i don't accept for arguments sake your notion that the right of privacy and the right to be married to the same thing. people do with my hypothetical if you please. they are different things. and on that assumption i would like to know what you think of the argument. >> limitation. >> i don't actually accept your starting premise. the rights of marriages i think embedded in our

constitutional law. law. it is a family to follow fundamental right which stated that the issue is you cannot narrow it down to say what is the fundamentally of gay marriage. has black and white marriage been treated fundamentally. the issue is starting from the fund the mental of is the right to marry fundamental and it tenant is a compelling for states to exclude of the people. for me that is as simple as a question gets. >> i am not arguing with you are justice breyer about how broadly or narrowly we should be defining the fundamental marriage right pointing out under the court's long-established precedent which is designed to create a balance for

federal courts are not always interfere with the stick commit to have democratic process it does not matter how broadly or narrowly we do find it but it is understood as a limitation, the opposite sex nature of marriage. >> am not sure it is necessary to get into sexual orientation to resolve the case. if sue loves joan thomas joe sue can marry him and tom cannot. the difference is based upon the different sex. why is that not a straightforward question of sexual discrimination? >> to reasons, all of these courts have involved in treating classes of men and women differently which is now we have here. even more fundamentally than that the court has recognized that it is appropriate to draw lines based upon sex difference related to biology and endorsement for a minute that it really is important and you will recall that is the case we had a law by

determining citizenship of children born to the voiced or unmarried individuals overseas. the law said if it was the child of the citizens mother they automatically have citizenship. if it was the father and the father had to prove paternity and make child support payments up to age 18 which is an obvious sex discrimination. >> we know who the mother is. claiming to be the father. we cannot be sure. clicks that was the justification for the proof of parenthood. i would like to quote from the child support. the courts of the government had an important interest in ensuring an opportunity that meaningful parent-child relationship turnup biological father and child

and the law substantially advance that interest him in this and this is why. almost axiomatic a policy which seeks to foster the opportunity for meaningful parent-child bonds to develop as a close and substantial variant of the governmental interest in the actual formation of that bond, and that is the exact interest that the respondents are advancing here. they talk about the definition of marriage. >> your father could get the status. you just have to do some things. it was not difficult. a total exclusion. father was complaining that you should not have to do anything other than what the mother did.

it's not much. >> but the court's opinion was that the state has an interest in the biological father child bond not only improving it but also ensuring that its estate and the exact same interest the state has may try to combine and if you change that meaning over the long haul it has consequences. i started to say a few minutes ago the rate has gone from 10 percent to 40 percent. and to the extent -- >> the reasons gay marriages clicks you are one of brought it up.

clicks very difficult for same-sex couples to adopt some of these children. clicks the basic.where you began with some premise that only opposite sex couples can have a bonding with the child. it was interesting how it was a long premise. >> we want to encourage. we don't deny this at all. >> changing the meaning of marriage adults could think

we all agree they are bonded to the kids. normally talk about justice kennedy over decades societal views on marriage change there are consequences. with this what this comes down to is not whether you agree or disagree or are a reasonable voter but whether it could happen when drawing policy lines every marriage definition excludes and include some people. the possible harms way change the definition -- >> what exactly is your response to the fact? we assume a, basic purpose of knowledge is to encourage an emotional and enduring bond between parents and children allowing gay people to marry will weaken it. some don't and someday people married and have children.

so what is the empirical connection you expect to have more children created outside the bounds of marriage. a reasonable alert. that is government conduct. right now right now take the speed limit clicks part of what you just said -- i just heard you say it clicks because you are changing slightly the state interest. you are talking about the state interest in bonding parents and children generally.

adoptive parents are heroic. talking about children you have for whatever reason gun disability abuse and have been separated from the biological mom and dad. talking about adoption, that is an entirely different social issue that gets all the different state interest we are we are talking about here is a world where there is no -- >> you are connected. >> the potential adoptive parents, many of them are same-sex parents who cannot have their own children and truly want to experience

exactly the kind of bond you are talking about. how does it make those children better off by preventing that? >> we allow someone regardless of sexual orientation to adopt. >> saying that the recognition of marriage helps the children are you not? the whole basis of the argument, children and marital households clicks we wanted to be the glue. >> more adoptive children adopted children and more marital households whether same-sex or other sex seems to be a good thing. >> that is a policy argument that reasonable people can disagree on. >> leading to newer policy and it is not a good thing.

i am not trying to put words in your mouth. it just seems to me inexplicable given what is said are your policy interests. >> if you change the societal media what marriages and society has started to move away from what we understood marriage to be the more that link is separated the more likely it is when you have an opposite sex couple that link will not be maintained because it is more adult centric and less child centric, more kids being raised at the biological mom and dad for more kids being raised by both parents, statistically without a father although that is not always the case from a not unreasonable for other people and thinking about the possible consequences of changing a definition which has existed for millennia might have real consequences. to say otherwise is to say that it is irrational for a person to think that changing an idea about something will have no affect about how

people think of the issue clicks the idea about marriage, what i said earlier. marriage today today is not what it was. a relationship of the dominant male to a subordinate female. that ended as a result of this course decision in 1982 , and no state was allowed. would that be a choice that a state should be allowed to have? >> according to marriage the way was. >> absolutely not. as they did not have a legitimate interest. >> the biological mom and dad when possible. i want to get back to this.of line drawing and the various definition and how no matter where you draw the line they will leave someone

out. but they are asking me to do is to take an institution that was never intended to be dignitaries -- dignitary bestowing and make it so. when you do that tens of thousands of other children will likewise be left out and suffer those exact dignitary harms. when you're talking about a spectrum of marriage definitions, draw the line and potential harms on both sides, that is the quintessential place for the democratic process to work. clicks in fairness, i do not understand that it is not dignity bestowing. i thought that was the whole purpose. these say that they want to have that same enablement.

clicks how to relate together kids, the glue. they did he may have grown up around marriage is a cultural thing that the state has no interest in bestowing are taking away dignity for anyone and certainly it is not the state's intent to take dignity way for same-sex couples or from anyone based upon orientation. >> with reference to traditional marriages enhancing the dignity about the parties. >> the states don't intend to vista dignity. others who who are excluded from the definition with suffer dignitary harms. you cannot draw the line. when you're talking about balancing harms and the importance of letting people decide the most fundamental of questions has other important things to think about as well when people must act through the

democratic process they must persuade themselves and we have seen that happen. enacting social change of this magnitude through the federal court cuts off the dialogue is is one group fits their definition and the other is on the line of being irrational or filled with animus which is not the way our democratic process is supposed to work for and there are long-term harms to the country and to that fundamental liberty interest to govern ourselves. you take away that dynamic. one enacted by the people through the democratic process. >> of course, we do not live in a pure democracy but a constitutional democracy. the constitution the constitution imposes limits on what people can do and

this is one of those places we see every day where we have to decide what those limits are all whether the constitution speaks to something and presents. >> right. clicks it is right. as as we discussed in our briefing, continuing the argument there is not a constitutional limit that help people want the marriage definition i have had for millennia the jurisprudence and the fundamental rights doctrine -- >> but that is the question, whether there question, whether there are equality limits or liberty limits. let's go back to liberty limits. >> sure. >> the race to marry, we had turner. in all these cases will we have talked about is our right to marry, not

defining the right more particularly to my right to interracial marriage, right to marry if you are a prisoner. here is a right to marry which is fundamental and that everyone is entitled to it unless there is good reason for the state to exclude. why should we not adopt the exact same understanding year? >> the same cases you just mentioned, skynyrd, maynard the other type himself. they all talk about marriage in the context of men and women coming together and creating children. >> they were dealing with men and women coming together. the the question was, there might be a black woman, a black man and a white woman or a black woman in a white man and there was no inquiry into whether that was a traditional form of marriage. if it had been such an inquiry in this country they would have come up pretty short.

>> and historically that was not part of the tradition and more importantly -- >> not a part of the tradition, that is right. irrelevant that it is not part of the tradition. >> right. >> because there is no good reason for it not to be. clicks discrimination based on race has nothing to do with state interest. ..

>> >> when a butler that serves

a life sentence is appropriate for the state to deny because they never have that opportunity. so that is the interest asserted here to marriage. then take away all the laws with cohabitation and intimacy outside of marriage to take away criminal conduct. if they had no marriage that would not violate a fundamental right in those cases it is the right to be left alone not as chief justice roberts intimated to force the government to come into your home to recognize and give you benefits. surtout different things than you can draw the analogy to the abortion context. of the government cannot

interfere with the court says of a woman cannot force the government likewise they cannot interfere with private intimate contact for go our position as a constitutional matter that yes you can force by forcing them to give benefits to anyone. there have not been any identifiable limits you have to change schaede doctrine of the fundamental right and equal protection in when you change those you also change the balance between the federal court and the people in the democratic process was. >> is seen as a you are doing something different to define constitutional rights

for the people that can exercise them an adult think we have ever done that or we have seen a constitutional right we have not defined by these people can exercise but these cannot was specially when the claims are equality based. tuesday in law -- lawrence there is a right for intimate activity for heterosexuals but not for gays and lesbians. of course, we did not do that. was then understood there was a right it was for everybody. >> absolutely. that is the point is not based on the identity or the choices it is the way the government has always done to solve a specific problem.

>> drawing distinctions based on sexual orientation. >> no. because the state does not care about your sexual orientation. >> i am not asking your reasons if you have any or not but it is based on sexual orientation. >> no. it is very different they have a disparate impact and you have to demonstrate that that there is an illness that motivates this and there is a link. >> it is not more of this or less of that. >> 100 percent impact does not mean animus. >> if we would prevent

people from wearing a of a cut it is discrimination against the jewish people? >> what i was talking about is about abortion in their ability to have that one. >> but that is what i said when. >> i could with read windsor again i don't believe there is anything in those cases that says basic liberty or right to be buried is a right that extends only to opposite sex couples so let. >> those are the issues alliance surprised the court actually wrote that but if it did end you can immediately call that page to mind i will look at it and. >> i apologize it don't have the page. >> the majority said it is

the limitation of marriage that was fundamental of same-sex couples where we. >> but this is now. has the fundamental right that it is the limitation? >> sometimes context matters. [laughter] was surprised we have this case in front of us the fed has been so clearly decided. [laughter] >> i do want to wrap up these are the emotional issues when never have been a missile and voting in the process but specifically to have no animus and does not take away from anyone with

but to talk about this important issue will have a dramatic impact on the democratic process. >> you have three minutes remaining when. >> the idea of a false dichotomy that same-sex couples can choose to marry and have children as 70 or 90 because of their commitment to honor both marriages and with the classification and one in what is the proper relationship for a real man or a real woman not with the person of the same sex.

to have been tense the vulnerable children to encourage them to a healthy child could because they did not conceive those children together? with adoptive parents are different sextupled to be married? they do not approve of the adult relationship with it is not disrespectful based on biology. one casualty what it is marriage is in the role of population. and different sex couples won't those to cannot be further apart and the idea people that raised children then it good for them so what we you talk about are a

different kind of adult relationships telling same-sex couples were -- said they can't is what is stigmatizing. but i can really understand but biology and so one to say what they care about is those who are together stayed together to provide a stable situation for their children will end by denying marriage to the same-sex couples denying protection for the adults were those protections when or the

security so with that, thank you. >> we will return to the bench in five minutes for argument of the second question presented. >> you now hear the second question presented in the case. >> if it pleases the court question number two petitioners are already married and have established those enduring relationships and they have a liberty interest is of fundamental importance that the states should not be allowed to dissolve that marriage without sufficiently important justification to do so. they have built their lives around their urges bringing children into their families just as opposite sex couples

have done. and to undermine the stability to support stability. >> i was surprised with the arguments made in your brief because largely there are the arguments that we just heard of question number one. i thought number two in is that there was an obligation to recognize a same-sex marriage entered into in another state where it is lawful even if the state itself constitutionally does not recognize same-sex marriage? web when there is not only a right to be married but remain married and there is a protected liberty interest in the status of one's marriage when.

>> even if that is not lawful and under the receiving state's law. >> right. >> let say as someone gets married in a country of polygamy does the state have to of knowledge that marriage? >> my think there would be justifications spec that is contrary to the state public policy? >> no the justification would be of such an institution but a polygamist relationship would raise all kinds of questions. >> but our marriage in this day which we constitutionally can have of this assumes the first is

that the united states does not want of us to but with heterosexual marriage we don't have the institution of same-sex marriage. >> with the state says just to have heterosexual marriage. >> rousseau in those states where by court order may have to commit same-sex couples to marry. >> the plural relationships was all a matter of questions not addressed. >> what if one state says that individuals can marry

at the age of puberty so when 12 year-old female can marry with another state be obligated to recognize that marriage? >> probably not. with the true consent of a married person most states don't recognize minors' ability to consent one the white -- quite in contrast that the states to recognize my age would not have been able to marry within their home state. one because of the abomination for some jurisdictions over than others. >> what about cousins

through marriage getting married? one state doesn't. the constitutional past is the one that they have set forth to have a sufficiently interest that in the case of incest it does have a sufficiently important. >> they are not biologically tied. >> rules against college marriage that simply define incest in a broadway that encompasses cousins to marry him whether it is to extenuated i don't think the state would have. >> the assumption the way it

is presented that the state does have a sufficient interest but there is a sufficient interest with the assumption that it is not a fundamental right. >> to analyze different name to allow couples to enter a marriage for one who was already married. kentucky has asserted its interest of opposite sex couples to marry will be to increase the birth rate. apply that theory to same-sex couples were already married or in half

of the states of the country. to be a sufficiently important interest to have those existing marriage vows and obligations to marry someone else to appropriate biologically even though they may already have children together i would dare say it is a rational justification. >> so the long-term effects in kentucky that you did not agree with but was argued in the prior case is a reduction of heterosexual marriages end children born to those marriages. >> this court has rejected that type of speculation to

draw these distinctions it argued it is too soon to know of what the stigma would be on their children. >> but if we cover all the way it is presented assumes that we come out. for a state not to permit same-sex marriage. >> that interest is not by extinguishing marriages that already exist. >> if the petitioner prevails, so if a state can retain its bay and does it

have to recognize a marriage from out of state? moi if there is a ban on same-sex marriage that allows it men and women of the four states draws that type of flying but what is so important with riffs -- with respect to dome of -- was doma to recognize out-of-state marriages even though they could not be celebrated with in the state is the circumstance where the issue arises.

>> but are we able to identify five instances to not recognize a marriage for what they would have that justification not to recognize the losses that the court would want to rely in this instance such as the rule to allow a divorced person to remarry. more importantly the most recent is 1970. the rule that the state's site to dissolve marriages that they use to begin their lives is less applied.

>> but you are avoiding the perception that the state's policy for supporting same-sex marriage is sufficiently strong man where it is so much weaker talking about marriages from other states. >> in order to distinguish the situation in the first case that the council is emphasizing task for other people are allowed to in the first place. we know through windsor because the court held once married they have the constitutional protected liberty interest in their marriage. we also know from windsor

with a sovereign disregard with marriage in a way that would be extraordinary and out of character at the very least careful consideration in nevada is what we have here. >> to undermine the state's interest to recognize in the first case that they must welcome in their borders one until they would be recognizing that within the state because we live in a very noble society. one state would set the policy for the entire nation >> from heterosexual couples raising children that are not biologically linked to them but the arguments the

state has made are so over and under inclusive at the same time that they indeed the feeling that we know that is true because that they don't but they suggested they would never draw the line. >> i lost to. what lines? >> that when his marriage to those couples who were able to procreate biologically without assistance. the state's don't draw those lines they treat the adoptive relationships that further support with greater stability. >> i thought the state had never categorically passed a law declaring a particular

kind of marriage was against public policy? >> none of the four states have never done that even with the doma issue. >> these lots are out of character and unprecedented in the language of many respects. >> solo law of some states that you refer to that recognize opposite sex are contextual? >> the nonrecognition laws are contextual because it is to recognize precisely because of that spirit we have that obligation but what is the most dramatic variation? >> at the time it is racial -- racial what is the next

most dramatic difference? >> if i could if they are the closest analogy because it goes to the question. >> i asked a simple question what is the next most dramatic variation of the laws of the state? >> it is probably age. >> what is the range? direct 33 teen men -- 13 through 18 but it does not come up that much but it is to recognize a marriage entered into because of the nature once it is established that the fundamental nature is not that the state should be put

asunder some iraqis said the state could refuse to recognize a marriage contracted in another state with the minimum age was puberty? >> they could but if any individual case when it was shown with lack of consent that they would not recognize the marriage. >> but the procession would be of age 13? >> right that the courts probably would recognize it if the couple had already conceived of a child and it would do no one any good to you destroy that marriage and what it would provide for their children is certainly doesn't experience the interest of the children

of opposite sex couples to provide stability to the children of same-sex couples who are already married and other states. >> i think it is the exact opposite in the prior case that we have never done this before to recognize same-sex marriage weapon now you say they cannot because they never have so decide what and/or the other if you win. >> and don't think so. but what is essential and common is that we recognize the marriage our practitioners have went in to is that the most important relationship of one life. >> but we only get to the

second question if you have lost on that point already. >> so assuming you have lost a robot crane to say you're not treating it as a marriage. >> that highlights one of the problems to decide the two cases differently because even on question one or question to live forever relegate those marriages to the second class status if they could be subjected to. >> are we arguing question number one now? >> but even a win on question number two does not validate the petitioners marriages but we think the state cannot disregard or

dissolve existing marriages without an important reason for doing so. to recognize in the war in case the marriage or do you relationship's child-rearing hour fundamental assets of the economy that same-sex couples can go into for purposes of autonomy especially when they have done so to establish a marriage for cry would like to give an example it brings home what is happening. to be married in california 2008 and 2009 they adopted two children. the reliance on the protection that is afforded by marriage he was willing to give up his job to be the

primary caregiver. but his job in international law firm was transferred from california to tennessee and that was the destruction of the family relationship and all that they had relied on to build their lives together and in support of that the offer exactly nothing. no reason they could disregard that marriage for him to give up his career to look after their children. >> but that was made with respect to the first question that mainly the existence of same-sex marriage perrault's the feeling of society regarding heterosexual marriages.

>> i don't think that holds up because opposite sex couples who have known children beyond childbearing years with the move into the state's the marriages are entitled to respect especially as the petitioners are. likewise the may not be able to procreate biologically but they could procreate through adoption just as opposite sex couples do with the reliance on their own state they move into the state's. support relies on federalism the vertical current with windsor to identify something that is highly unusual. it is horizontal federalism

but as part of a form of government that they have some form of authority and one is to recognize one another state creates the enduring relationship with the reliance on the protection as though law of warrants to establish family is that they are free to do disregard that of what they have created if that has established a law that exist in all other states certainly they are entitled to that same respect. >> pure honor it is interesting to note to those positions and are astonishing that the state

could limit marriage that our capable of procreation without assistance or to abolish marriage altogether ours take marriage seriously with vows to each other to buy into the institution that predates the bill of rights the most important fundamental in their lives and should offer more than a pretext. >> the state's rationale is the same way we treat insiders as outsiders it? >> they have offered that but these outsiders are already married so it is true when what we have same-sex couples that we will allow them the same way

when it in terms between the two questions with heterosexual couples to limit marriage to only those sarah capable of procreation but it would be a different distinct violation to dissolve the marriages when the woman reaches 55 for the states don't do that because the essential protection against arbitrary laws is the majority has to live under the same was the subject of the minorities to there is no chance they would subject themselves to such a law as that.

i would like to reserve the remainder of my time. >> mr. chief justice if it pleases the court the 14th amendment does the require states to a traditional marriage was to recognize marriages from other states between two people of the opposite sex. >> what about article iv? to mccracken actually'' a part of the constitution that is relevant. >> it should be given in each state to the public act record and judicial proceedings of every other ships stay. >> why doesn't that apply? >> they have made clear that the distinction between judgments between states and the laws of each state because otherwise each could

legislate. >> that includes the act of marrying. >> maya understanding is that each state's laws there is nothing that requires of state, that are the same senate is essentially correct. there has been under the jurisprudence with allstate insurance with alaska that there is a minimal due process to apply. >> we can save your marriages we acknowledge in new york or concluded in new york? >> i'm sorry. >> so the only marriage's we'll acknowledge in new

york are those that have been made under the laws of new york. >> yes your honor. >> really? what case is that what would you cite some american not sure if i understood the question correctly. [laughter] >> boehner you have several cases to read and write is will get another. [laughter] is the case the state that it recognizes marriages only made in your then they can treat you as if you are not married? >> i did misunderstand the right to have the honesty marriage. >> it is clear that the law is the same and the state

cannot say multiplied even though it is the same. >> the same as ours? >> for example, a half -- happened to lead washington judge could not marry someone but you cannot marry to other people in the district of columbia has the opposite wall ossify married to people in washington d.c. and they moved to new york you were saying that new york does not have to recognize that marriage because it does not comport with the marriage of new york? what case is that? i have a few people that may get nervous about this. [laughter] >> my answer is based on the court's decision because it

would be in conflict with the policy smith that we distrust federal judges from outside the state. >> and what is the difference the we don't recognize the gay couples marriage for what we fear if they get married and adopt them even if we allow people if they don't have children despite that which i have a little trouble understanding warrants not recognizing. >> i probably did not understand but i want to try to insert the underlying focus that there is a legitimate policy. but to proceed on the assumption that the court has decided the first

question that it is determined indeed this states policy to maintain the man woman definition is legitimate and we agree the court shall decide. >> anything to do with article four? >> none of this has to do with article four. n to a surge we have right to recognize the odyssey marriage. >> you seem to be in judgments from a sister state of full faith and credit is not a choice of law. >> yes your honor. so by deciding whether or not to recognize another

state's marriage or to recognize the other states' laws that it was performed. >> i'm sorry you do see a fundamental difference between creating a marriage that there is no difference in terms of the rights of people? it states regularly that the prerequisites for marriage in our state are not necessarily against public policy. for age differences why would they gave marriage issue be so fundamental to lead them to exclude a whole category of people from recognition?

>> goes to the essence of both questions that the fundamental notion of what marriage is. and i will answer in this way that the comparison between how states have operated to recognize marriages before, before there was any idea of same-sex marriage cannot be compared of how states are responding across the board with the phenomenon of same-sex marriage and here's the reason. commentators have observed that is the celebration ruled that evolves from every state has the same definition, the same interest so liberal policy to recognize marriages from one state to another.

>> du think marriage decrees are closer to a law of them a judgment? you have to get a judgment to divorce and in my mind that brings a decree much closer to a judgment they ago loss. >> the performing of the marriages closer because in essence for what flow from that state's laws it is different than judgments does not deserve that same treatment because of the reason. >> but under the constitution to act under the constitution that is not a judgment. >> have you separate out the terms that justice scalia

gave you? is for different terms my judicial proceedings and and jurisprudence refers to the law and records and judgments in other states in marriage has always been treated that you're out all the years it gives rise to the in tired doctrine of which petitioners rely for the commentary on the conflict of law ; the present controversy when is the last time tennessee declined to recognize any marriages. >> 1970 was the last one that involved a stepfather and stepdaughter. i would hasten to add with regard to how we got to this

point while the states were playing along under the same definition but what they confronted was some states changing the rules of the game if i could extend the metaphor. >> then there has always been distinctions based on age and family relationships under the same definition and despite that apparently it is quite rare for the state not to recognize the august date marriage. >> it is rare live we talk about what marriage is of the fundamental man/woman of marriage as soon as a state's were confronted to read define marriage to include same-sex couples for the first time that it is unsurprising that to keep up

with their own laws there would not recognize the other states marriages. >> the question to put us in the unusual situation we have to assume that has been decided against of petitioner first or we don't get to the second so we would hold a state has a sufficient reason. to a acknowledge that the state could recognize the out-of-state marriage with a strong public policy if it is polygamist with very young individual. so there is an is a sufficient reason to grant these licenses ourself but not a strong enough reason

for us not to recognize a marriage performed out of state. that is possible? >> i will answer this way. let me be clear the justification that has grown over time for a strong reason to recognize marriage grows up and around the man or woman definition but as long as we talk about a marriage from another state that it is the state's interest with a cohesive and coherent that does not recognize those marriages otherwise what was put earlier indicated any resident of the state to go to another state to get married and come back. >> absolutely people lorna

and permitted to be married could not do that and come back to their home states involved rules of marriage celebration. >> we talked a primary distinction with the traditional definition and same-sex marriages. >> it is a prerequisite of the state's judgment with the marriage but what should be a recognized marriage. >> but this is the landscape refined ourselves. to this the ohio or kentucky with the traditional definition but other states have made the decision that has the prerogative to do so

and to suggest that other states that have done nothing but stand pat must recognize those marriages with a substantial burden to self govern. >> it is tied batted divorce that it is in a decree for the nation to be recognized by every other state but not be active marriage. >> i understand the point to have it within the court's recognition but it would allow one state initially are literally now a ninth -- minority state to legislate

fundamental concern about marriage for every other state quite literally that is enormous and position and intrusion upon the state's ability to decide for itself important public policy questions to maintain, talk about recognition there is the 11 state is recognized -- asked to recognize another when the whole policy is built around the expectation and resumption there is a man woman relationship that the court recognized and observed the marriages that foundation of the state's ability for domestic relations to give a concrete example, that comes up in this case is the

presumption that comes with a marriage. to recognize another state's marriage whether a child would fundamentally offer the state's definition of parentage. >> so whether they recognize same-sex marriage or not i'll see the difficulty to treated couple was married but the first question is a big step but then it seems i you apply the domestic relations law is straightforward. >> what i wanted to mention this is a large part is the impact on the children involved and it is important

for the court to recognize in many states the definition of parent has always been violent -- biologically based that narrow presumption has a foundation in biology of a man woman relationship. if the state were required to recognize same-sex marriage to change the pronoun or the target -- terminology. >> what about adoptions? what is the problem? >> it is a big deal because you change the way the state defines a parent with adoption you have to understand the traditional definition working in tandem and the objective with regards to marriage to link them with their biological

parents so there is the adoption. >> have the states failed to recognize the of birth certificate of another state? >> i'm not --. >> is the word records in the constitution including a birth certificate? so california for no reason with no suspicion or fraud or anything, it could refuse to recognize another state's birth certificate? >> i have to read mitt i cannot speak to that. >> records have to have a meaning. >> it does prime has a tent -- i am hesitant about exactly what the impact is between we have to read knowledge the existence for

evidentiary purposes or the effect of the record the past to be acknowledged. >> recognize that is an issue but if it were to be a record don't you think the marriage certificate as an official act of the state? >> the marriage certificate and i guess it goes to the point that there was a marriage that though laws that allow the average to occur when they're different fundamentally with the laws of the states like tennessee preclude the application of that same principle from one state to another. , but with regard to the effect of requiring the recognition it is important to consider the fact that

the petitioners have complained about the impact it has when they move from one state to the next with regard to the rights that they enter enjoyed as the marriage was to find in new york or california for example,. federalism accommodates this situation which is a string of our federal structure to accommodate the very difference of viewpoints or approach that this fundamental debates we have with same-sex marriage generates. it makes all the sense in the world with respect to that to allow the federal structure to do what it is designed to do and that is why we ask the court to determine the 14th

amendment to disrupt that balance and impose a duty on one state to recognize the laws in the marriage of a different state because of the intrusion on the state. >> to a knowledge of the state's also loses on the second question? >> yes your honor. >> you have five minutes left. >> thank you. if i may start with the assertion that tennessee law with relation of biology is not so. tennessee law and i will quote 3611 i'm sorry it is referred to on page 15 of the reply that a child born to unmarried woman as a

result of artificial insemination with consent of a married woman's husband husband, the father is deemed the illegitimate child of a husband and wife even though the husband has no biological relationship with the child. tennessee does just with the adoption reenforce the bond of parent and child care regardless of biology passalong as the couple is the opposite sex. the import of that for real people like the doctors doctors, that it brandes' they that fell in love during graduate school in new york for academic couples could only be epicene university in tennessee and doctor has given birth to their daughter in tennessee.

now with the nonrecognition clause their daughter is hospitalized tennessee would treat dr. not as mom vitiligo stranger with no rights to visit her child, no right to make medical decisions. they have real importance for real people. and although i think counsel was suggesting federalism to allow states to make different laws if you choose to get married just don't move to ours that is the cost but the sergeant and his husband have a choice the united states army moved them to tennessee and given the location of freebases in this country it is almost a certainty anyone serving for any length of time will be stationed at some point in the state that would dissolve their marriage as a matter of stat