>> -- prison inmates to marry. >> right. >> your honor, the central, i guess, point that we want to advance here is this. what is the distinguishing characteristics of opposite sex couples that are relevant to interests that the state has authority to implement -- >> are you arguing to me that is enough for a rational basis for the federal court to get involved in that right of marriage? >> we are arguing that the test that applies here is a rational basis. if there is any rational basis for the opposite sex traditional definition of marriage, then

that traditional definition of marriage must be upheld, and only if this court concludes that there is nothing to say in favor of the definition of marriage that has prevailed in this country and in all places essentially at all times since the time this memorial. there's nothing to say in defense of it it. there's no rational basis for it. then this court would have to strike it down. but that is the test that we submit to you that applies, your honor. and we believe that there is clearly a rational basis justifying the traditional definition of marriage. the key reason that marriage has existed at all in any society and at any time is that sexual relationships between men and women naturally produce children.

society has no particular interest in a platonic relationship between a man and a woman no matter how close, no matter how committed it may be, or emotional relationships between other people as well. but when a relationship between a man and a woman becomes a sexual one, society immediately has a vital interest in that for two reasons. one, society needs the creation of new life for the next generation, but secondly, society is -- its vital interests are threatened by the possibility that an unintentional and unwanted pregnancy will mean that the child is born out of wedlock and is raised by, in all likelihood, its mother alone. and that directly implicates society's vital interests, both

in terms of its immediate interests, because society will have to step in and assist that single parent in all likelihood. that is what usually happens in the raising of that child. but as well in the undeniable fact that children raised in that circumstance have poorer outcomes. >> that sounds like a good argument for prohibiting divorce, but i -- [ laughter ] but how does it relate to having two males or two females marry each other and raise children as they can in california and form a family unit where children have a happy, healthy home? i don't understand how that argument says we ought to prohibit that. >> your honor, the point and the

question is whether or not the state of california has a rational reason for drawing a distinction between same-sex couples who cannot, without the intervention of a third party of the opposite sex, proek reeuate, but opposite sex couples who can do so unintentionally and create unwanted pregnancies. that's not a phenomenon that exists with respect to same-sex couples. the overriding -- >> but what is the rational basis for an initiative that when california law really says that homosexual couples have all the rights of marriage, all the rights of child rearing, all the

rights that others have, what is the rational basis then, if, in fact, the homosexual couples have all of the rights that the heterosexual couples have? you're left with a word. marriage. what is the rational basis for that? >> your honor, you are left with a word, but a word that is, essentially, the institution. if you redefine the institution, if you redefine the word, you change the institution. so it is the -- you cannot separate the two. the name of marriage is effectively the institution. the issue here is whether it

will be redefined, essentially, to be a genderless institution that bears little or very no relationship to the traditional historic purpose of marriage. >> why aren't the merits of this had case controlled by romer? after all, before the proposition was passed in california, same sex couples had the right to marry. the proposition takes it away. isn't that exactly what the proposition in colorado did? >> your honor, in romer, the court was dealing with a sweeping law that placed undifferentiated burdens and disqualifications on homosexuals across the board. >> if you take away a bunch of rights, that's bad, but if you take away one right, it's okay?

>> your honor, it isn't a question of taking them away. the supreme court -- >> did or did not same-sex couples have the right to marry before the passage of proposition 8 in california? >> your honor, the california supreme court affirmed that they did, yes. and the people of california disagreed with that, and the people of california reversed it. >> how is that different from what happened in colorado? a few local communities decided that they wanted to extend preferred status to individuals, homosexual, gays, lesbians, et cetera. the voters of colorado passed a proposition saying you cannot do that. you have no right to do that. stop doing that. >> your honor, amendment 2 rendered homosexuals strangers to the law. it essentially eliminated any

and all protections for homosexuals with respect to the ordinary pursuits of civic life as the court put it. it was a sweeping, undifferentiating -- essentially rendered them an isolated class and strangers to the law altogether. the court stressed that it was an unprecedented in our jurisprudence kind of statute. the precedence of marriage is anything but unprecedented. it has existed throughout the history of this country. it has been the governing understanding and definition of marriage in this state since its founding, and basically throughout the country and throughout the world for all

time. the definition of marriage is anything like -- is not anything like the kind of statute that the court was dealing with in romer. in fact, in this case, i would submit to you that the question is -- your question, your honor, is governed by the crawford case, where the court said that it would refuse to interpret the 14th amendment. and these are its words -- to require the people of a state to adhere to a judicial construction of their state constitution when that constitution itself vests final authority in the people. so -- >> but you've told us that the people of california could not reinstitute racial segregation and public education. so we know there are some things they can't do. >> they certainly can't do that. >> without flying in the face of the 14th amendment.

the romer case opens with a quotation from justice harland's decent. the constitution neither knows nor tolerates classes among citizens. those words now are understood to state a commitment to the law's neutrality where the rights of persons are at stake. aren't you flying right in the face of that? >> your honor, if there are no reasons, no rational reasons to distinguish between citizens, then the constitution does not permit the law to distinguish between them and treat them differently -- >> the proponents of the ballot initiative in colorado made the perfectly logical argument that all they were doing was leveling the playing field. justice kennedy said that's not right. that's not correct. >> and, your honor, it wasn't

right. they were doing much more than that. they were essentially opening gays and lesbians to private and public discrimination and disabling any governmental body from intervening in that private discrimination, as justice kennedy emphasized. in common, ordinary civic life from banking to hospitals to hotels to common carriers. all the ordinary pursuits of civic life, homosexuals were rendered strangers to the law. they could be discriminated against in these fashions. that is a far, far more sweeping and different thing than simply adhering to the definition of marriage that has prevailed in

california and everywhere else since time and memorial. again, the question comes down to this. are there distinguishing characteristics relative to an interest of the state has authority to implement at work in the opposite sex definition of marriage? if there are, then the courts cannot say that acting upon those distinguishing characteristics is invidiously discriminatory. so that's the issue. >> that's a terrific response. let me ask a question that's meant entirely to be neutral. is it the preference of the proponents -- let's assume for the moment that we conclude you have standing and you're here to

argue -- defend the proposition. i accept that position. do you want us to get to the merits of the issue here? in other words, do you want us to sidestep baker? >> no, not at all. your honor, i believe that baker is binding on this court. my opening legal point would have been that, in fact, this is not the first court to take up and deal with the very 14th amendment issues that the plaintiffs bring here today. in fact, there have been eight appellates court, state and federal, who have addressed these issues insofar as they relate to proposition 8. all eight of those courts have upheld the traditional marriage laws and have rejected the 14th amendment claims.

one of those cases, your honor, is baker against nelson, a supreme court case that we submit is -- remains a good law, remains binding on this court. >> there are some differences. it was before romer and lawrence, and it didn't deal with with the subject of repealing a constitutional right that existed at the time it was taken away. >> that's a fair point, judge rinehart. that is a distinction with respect to the issue as it came to the supreme court in baker. there had not been the earlier period in which the california -- the supreme court

had essentially legalized same-sex marriage. so that is a fair point. >> the california court, sir, said that's what the constitution says. it said that as citizens, we have to accept that from that moment forward. it was not a matter of pulling rabbits out of a hat or something like that. they said, this is what the constitution says. >> your honor, that's fair enough. they said, this is what the state constitution says. but under the california system, it is the people themselves who retain all the sovereign political governmental power, and they are free to review that decision, to disagree with it, and reverse it. and that's what they did in proposition 8. so, your honor, we would submit to you that the case came to the people of california the same way the case came to the california supreme court. on review from a decision from

the california court of appeals, a lower tribunal. the california electorate disagreed respectfully with their supreme court at a 4-3 decision and reversed it. the crawford case, i would submit to you, judge hawkins, is on the point of this. that was another case where the california courts had interpreted the california constitution, i believe it was, the california constitution that they had interpreted to go beyond what the federal constitution requires. the people of california decided we're going to bring it back to the place that is required by the federal constitution, and the court said in a state like california, where the people retain the ultimate power of the

government -- >> of course, generally, you can amend the constitution. that's true. it depends on the subject and what you're amending. i think that's what judge hawkins was talking about earlier. what is it that you are amending, and can you amend that? nobody had suggested you can't amend the california constitution no matter how the court had interpreted it, as a general rule. the question is, can you amend something -- i'm not suggesting it's a fundamental right for purposes of this discussion, but is there a valid reason to amend this constitution under the standard that we follow? >> well, your honor, i believe that the point of crawford is that the people are free, essentially, to disagree and

reverse -- >> well, not anything, as judge hawkins is pointing out. could you say, we're going to have segregated education? we couldn't say yes to that. >> no, your honor, but that's because the federal constitution would have outlawed that quite apart from whatever the california supreme court had to say about it. so it wouldn't matter if the people did that before a california supreme court decision or after a california supreme court decision. if the california constitution had provided that there will be, you know, racial segregation, as you suggest, in connection with schools, the federal constitution would outlaw that, and it wouldn't matter whether

there had been an intervening supreme court decision from california also outlawing it. the point really is simply this. if proposition 8 had been enacted before the california supreme court ultimately invalidated traditional marriage, if it had been enacted before that, the constitutional case that would come to you is the same as it is coming to you now with proposition 8 having been enacted to reverse the california supreme court. because under crawford, the people of california retain the authority to reverse their supreme court unless the federal constitution is violated then and there by what they did.

>> if you're taking away a right from a particular class without sufficient reason, that's to say without a standard, without any reasonable reason, and it's done for a reason that could only be directed at a class in a manner that is -- i don't want to say invidious, but in a biased manner. you can sometimes derive that view of bias from the action in itself. then you cannot do it. here, you have to take into account all of the circumstances that smith mentioned, for instance. you had all of thes a pe s aspe marriage, other than the title. what is the reason for wanting to take that title away from a group of people who have enjoyed

it? that's where i think you get to the constitutional question. >> well, your honor, and our submission to you is that the people of california needed no reason beyond the fact that they disagreed that their constitution ordained that result. that their constitution outla d ed and invalidated -- >> why isn't that true of romer also then? >> i beg your pardon? >> why isn't that true of romer? the people of colorado decided they wanted to do this, and that's what they wanted. this is what the people of california did. but there's a limit on that. and it doesn't have to be in the federal constitution, except that there has to be a rational basis for it, and it can't be

related to bias. >> yes, your honor, that is true. so if proposition 8 was coming to you without there having been this previous period in which california had approved same-sex marriage t would come to you in the same constitutional profile that it comes to you now. i guess our point is it isn't changed because there has been this previous period where the california supreme court has interpreted the california constitution to invalidate traditional marriage. >> but that's an interesting question, i think, in this case. would it really be the same if the state did not go as far as california had gone? would they be required to go that far? or is it different when you're taking something away?

you can argue there's no difference. i'm not sure that's a settled question. >> well -- >> but i would think that the other side -- and i know the city of san francisco play particularly did. it's different when you're taking it away and not giving. >> your honor, i am not -- i don't deny there's some force to that proposition, but i do commend to you the crawford case, which we think does support the proposition that the people -- they act -- if the california court of appeals had invalidated traditional marriage and the california supreme court had reversed that and said, no, our constitution doesn't do that, no one would say that

during the interim that right had existed and the california supreme court had stripped the people of california of it. what we are submitting to you, and we believe the crawford case supports, is that the people themselves are a tribunal over their constitution standing in those types of shoes. i do credit -- >> could the people of california suppose proposition 8 in addition to addressing the subject of marriage had done what in part the proposition in romer did, which was to disallow civil unions. would you have the same response? would you have the same argument? >> your honor, i believe that the argument i'm making here would be the same, but i do recognize that the argument for the constitutionality of a

proposition that accomplished that result or perhaps i should put it the constitutionality of that result would be on different footing than proposition 8 itself comes to you. >> sounds like you're a little uncertain if they had added civil unions. what if they had said we don't want hospitals allowing visitation with dying loved ones by same-sex partners and they added that to the proposition? would that put it on shakier grounds? >> this proposition i'm advancing now, no. the point being that any time a state goes beyond -- and here i'm assuming this would go beyond what the federal constitution demands -- and if it goes beyond what the federal constitution demand, then the people are free, according to the specific language of

crawford. having gone beyond the requirements of the federal constitution, a state is free to return to the standard prevailing generally throughout the united states. >> so do i understand you to be saying if the proposition had simply done away with civil unions, crawford would say that's okay? >> if it had simply done away -- >> the proposition 8 had simply been addressed to disallowing civil unions, which, as understand it, is allowed under california law. if that's all the proposition had said, crawford would say that's okay? >> yes, your honor, to the extent that civil unions are not required by the federal constitution. >> but what does that mean to the extent -- does that mean they could take it away or they couldn't take it away? >> they would be able to take it away, your honor. unless the federal constitution

itself requires the states to afford civil unions to gays and lesbia lesbians. >> how does that differ from romer? they took things away that aren't required by the federal constitution. so there's more to it than your answer. no, your hon >> no, your honor. i don't believe that the things that were put in place in romer -- in fact, i think justice kennedy said this wasn't just a repeal of the provisions that had been enacted in denver and other municipalities. and he suggested if that's all it had been, it would not have been constitutionally objectionable. it went much farther than that. in going much farther, it became constitutionally objectionable. >> i didn't mean for you to stop your sentence. if i could have permission of the presiding judge here, a

couple questions that i am particularly worried about. some states have not extended domestic partnership rights to homosexuals. do they have a stronger argument for a rational basis than does california? and i want to ask you that straight out because i'm trying to get you to differentiate your argument. it seems to me that your argument can be made as to rational basis if there weren't all kinds of rights already given to those homosexuals and domestic partnership rights. so i'm asking you straight out. some states haven't done it. do they have a stronger argument, then, for rational basis than does california? >> your honor, to the contrary,

i think they do not. it would be quite perverse if the people of california in enacting and addressing the very legitimate interests and needs of gays and lesbians and their families by enacting domestic partnership laws and going as far as a state can do short of redefining marriage. and the state insisted in proposition at redefine marriage and they preserve that institution for the specific purposes that it has always served. i don't believe a state, judge smith, h its constitutional position when it goes as far as it can to address th and their families. >> i