captions copyright national cable satellite corp. 2008 captions copyright national cable satellite corp. 2008 captions copyright national cable satellite corp. 2008 if the people in california in acting and addressing the very legitimate interests and needs of gays and lesbians of 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 8 that it not redefine marriage and to preserve that institution for the specific purposes that it has always served. i don't believe a state, judge

smith -- >> go ahead -- >> has weakened its constitutional position when it goes as far as it can to address the interests of gays and their families. >> i guess my worry is, and this is what i'm really worried about in your particular situation, if i adopt your argument, is that i'm trying to find the rational basis in that particular situation, when california has gone as far as it has, what is the rational basis that we really have? i'm wondering if it's just not to maybe market the marriage of a man and a woman. >> your honor -- >> promote a special relationship in society. is that enough to meet the rational basis? >> your honor, i believe it's to preserve the institution of marriage for the purposes that it has always served.

the unique purposes that flow from the unique interests that society has, that in turn flow from the unique pro-creative natural pro-creative capacities of and men women. the courts that have upheld traditional definition of marriage have uniformly noted that it is entirely rational for, in fact the eighth circuit in the bruning case dealing with a proposition from nebraska that contained identical language to proposition 8, that it was entirely rational for the people in that state to confer and retain the inducements and benefits of the institution of marriage for opposite sex

couples who can procreate and including procreate unintentionally, creating unwanted pregnancies that threaten society's interests, and not extend, not extend marriage to same-sex couples who simply don't represent that same societal interest. the interests of society that are vitally implicationed by sel relationships between opposite sex couples are simply not implicated in the same way. my time is well past. >> yes it is, but i wanted to see if judge smith was through with his questions. >> well, i'll skip the last question, thank you. my last question was, do you think this -- [ laughter ] -- rational, since the good judge has given me opportunity, do you think this rational would

satisfy the more searching form of rational basis justice o'connor elaborated in lawrence? >> your honor, if this case is to be decided by heightened scrutiny, then obviously it is a harder case, but we think it does satisfy heightened scrut y scrutiny. the essential proposition, your honor, being that the main objection to the rationale that i've articulated here is infertile couples are nonetheless allowed to marry, and that is true, no society has ever insisted that marriage produce children, but your

honor, the question then becomes how would society draw that line? how would society do that? it would have to have orwellian measures designed to police fertility before marriage, orwellian measures designed to presumably annul marriages that are not childless, and those measures would undoubtedly violate the constitutional rights of the individuals involved. so we don't think that any less restrictive method could be as a practical matter employed. and i appreciate the court's indulgence. >> thank you, mr. cooper. >> i think he indulged me and i hope he didn't go too long so that he's aggravated with me. thank you. [ laughter ] >> well you didn't save any time

but we'll give you two minutes anyway. >> i appreciate that, your honor. >> may it please the court, my name is theodore olson, i'm here on behalf of the plaintiffs. it is important to focus on the fundamental fact that california has engraved discrimination on the basis of sex and sexual orientation into its fundamental governing charter. the labor given to proposition 8 in the official voter's policeman get said it all. it eliminates the right of same-sex couples to marry. this proposition marginalized and stripped over a million gay and lesbian californians of access to what the supreme court of the united states has repeatedly characterized as the most important relation in life.

>> mr. olson, you do think there's a difference between taking the right-of-way, and not affording it in the first place? >> yes, we do, judge reinhardt. that is what the united states supreme court said in a case going back to wrightman versus malke, in 1964, where the california citizens acted through this process and took away rights with respect to discrimination in housing, and that is what the supreme court said in roehmer versus colorado, that it does make a difference. now i don't think as an original matter that it would be constitutional if congress had enacted proposition 8 five years ago, before the in re marriage cases but i think it makes it worse and that's what the united states supreme court has said, the taking away of the rights in that context enhances the effect

of the constitution of the purported constitutional change. >> what's your answer to the case that mr. cooper referred to several times? it's the one about the the bussing and the methods of bringing diverseit to the schools. >> that's the crawford case. >> yes. >> what the crawford case said was to the extent not required by the constitution remedies for constitutional violations could be restricted by the people of the state of california, but that doesn't change anything. i heard mr. cooper mention the crawford case five times, not once anywhere in the crawford case does it suggest that an initiative measure somehow rises above the 14th amendment to the constitution of the united states, and that's certainly what the wrightman case held and that's certainly what the

roehmer case held. >> are you suggesting a gay marriage is required by the constitution of the united states? >> what is required by the constitution of the united states is the fundamental right of its citizens to marry. mr. cooper defined that as it as it has always been between a man and a woman, but the united states supreme court has never said that. what the united states supreme court has said in 14 cases involving the right to marriage in the context of abortion, in the context of prisoners, in the context of contraception, and in the context of divorce, that the right to marry is an aspect of the right to liberty, privacy, association, and identity. >> what i'm trying to find out is, is your argument here in response to crawford that there is a constitutional right to gay marriage? do we have to reach that point?

because what you're answering is that they're taking away a constitutional right, and if that's your answer, fine. if not, i'd like to know that also. >> my answer is that they are taking away a constitutional right given by the state of california, recognized by the state of california, that in and of itself makes proposition 8 unconstitutional under roehmer and wrightman, but i would also say that it is also constitutional and i would not call it, judge reinhardt, gay marriage or i wouldn't call it single-sex marriage, any more than the supreme corporate of the united states called it ma. what the supreme court said 14 times is that it is the right of liberty, association -- >> you can say whatever you want but in deciding the case i think we're entitled to know whether

your answer to crawford is that, yes, you can't take away a constitutional right, and this is taking away a constitutional right under the 14th amendment. >> yes, i also say -- >> it's dependent upon that? >> pardon me? >> it's depending on our finding that they would be taking away a constitutional -- >> no, it is not, because i went on to say that the right to marriage is a right of an individual, and by the way, mr. cooper talks in temples of the right of society. society's interest in procreation, it is not society's right. the rights under the constitution are not the rights of california. they're not the rights of voters of california. they're rights of citizens of the united states under the bill of rights in the 14th amendment, and if california could insist that it has something to do with procreation be engraved under

the right of marriage, it could take that away. it could say we don't want, we're overpopulated. we don't want prokaegs acreatio we'll deny people the right to marry. this is a fundamental individual right and what the supreme court said, and the reason i'm emphasizing this point, judge reinhardt, is because if you look at it from the standpoint of a right of two particular individuals, maybe they were mr. and mrs. loving in the virginia case of an interracial marriage, it was marriage. it was their right to get together and what the supreme court said in the griswold case, we deal with the right of privacy older than the bill of rights. marriage is a coming together for better or worse, hopefully enduring an intimate degree of being sacred. it is an association that promotes a way of life, and so forth. this is from the griswold case, one of 14 -- >> mr. olson, let me -- i'm not trying to express a view on gay

marriage or any marriage at this point. i'm trying to find out how far we have to go if we are to accept your view of this case. certainly if we start out from the assumption that everybody is entitled to marry everybody else regardless of sex, regardless of sexual orientation, if we have to reach that issue, we would, but as you well know, as you argued the plout case, we are advised not to reach a constitutional question unless we have to. i was not planning on reaching that question for you this early in the discussion, but it seems to come in relation to how we deal with the crawford case. and it was for that reason i was asking you whether in order to distinguish crawford you are

saying that we, it's necessary to take the position that you can only, the only thing you can't take away as a state is a right under the 14th amendment. >> there seems to be two questions in that. how far do you have to go in the significance of crawford? do you not have to go any further than with the roehmer case requires you to go. the roehmer case says taking away the constitutional right of individuals who are homosexuals, because of their classification as homosexuals violates the united states constitution even under a rational basis test and i would say if i get a chance to do that, this is the clearest case i can imagine of heightened scrutiny. but in addition to that answer, which i submit is the answer to your question, how far do we have to go. the additional answer with respect to crawford case is a completely separate thing it

seems to me because crawford was saying yes, the citizens can change nonconstitutionally required remedies for constitutional violations. that's different than this, and so for the crawford case in my judgment, has nothing to do with this case, and i would be happy to put the crawford case against the wrightman case, the roemer case, the loving case, it cannot possibly penetrate the full weight of those four decisions, and i guess one additional answer and i think it's important, since i slipped into mentioning the lawrence case, the united states supreme court has determined that intimate sexual conduct between persons of the same sex is constitutionally protected, and the supreme court has said, as i said, marriage is a fundamental right. how can the fundamental right of marriage be taken away by californians from persons

because they're engaged in a constitutionally protected activity? how can the constitutional right be taken away because of the constitutionally protected activi activity? it cannot exist. if you put the lawrence case together with the marriage cases, loving case and so on and so forth, you cannot take away that right, which is not a right of same-sex persons. it's a right of all citizens, and it's a right to be with the person that they love, to have an association that they select to live a life of privacy, to identify themselves as a self-identification as justice kennedy talked about in both roehmer and lawrence. that right cannot be taken away from individuals in this state because of their sexual orientitiorien orientati orientation. it is discrimination on the basis of sex and it's discrimination on the basis of sexual orientation, and if, even under rational basis test, the

proponents of proposition 8 cannot come up with a reason, they've tried various different reasons throughout the election campaign, and this litigation, for various different reasons, they started off with the proposition and it's in the ballot materials that it was necessary to protect our children from thinking that gay marriage was okay. that was the original rationalization for the statute that was in advertisements and it's in the particular, it's in the ballot measures submitted to the voters, protect our children from thinking that gay marriage is okay. well, what is the matter with that? it must be something about gay people that are getting married that would be disturbing to california voters, and you have to take that risk away from them. they basically retreated from that proposition, and it only appears on pages 107 and 108 of

the brief that they filed, and basically they're now saying that it might, if gay marriage were permitted, this is what they say on page 107 or 108 or 109 of their brief, proposition 8 needs to be enacted because the existence of same-sex marriage will somehow it shall -- they don't use the word somehow -- will make children prematurely occupied with issues of sexsexuality. that is nonsense that you can enact a proposition that walls off the citizens of this state from a fundamental right, because you're worried that otherwise children might be prematurely preoccupied with issues of sexuality. that, of course, if that was a justification, it would equally warrant banning comic books, television, video games, and conversations with other children. [ laughter ]

>> in deciding whether rational basis saves this proposition, what do we look to? >> well, whether -- i am not sure your question is asking me whether it should be rational basis or what -- >> assume it's rational basis, do we look to the record that was made in district court or do the cases suggest to us that we imagine whether there is any conceivable rational basis and apply that? >> it has -- the answer is that, that is too attenuated, just to imagine something from the sky that someone might conceivably imagine, and the city of claiborne case and the roehmer case makes it clear in justice kennedy, in decision for the court in roehmer case says we must look further into the

reasons and they must make sense and they can't be attenuated and motivated by fear of people we don't like or minorities. it's got to be more than that and most of all it has to be rational and that's why i was looking through the reasons that they've advanced. one is to protect our children and we've seen at least i think it's manifestly clear that that is not a rational basis, because you can't do that, because basically that's based upon the idea that there's something wrong with these people, and we must protect our children from them. that won't work. >> suppose just assume this for the purpose of my question, that we were to conclude that this accidental pregnancy argument is, in fact, a rational basis. have the proponents of the proposition or the imperial clerk given up that argument because of the arguments they made in the political process leading up to its passage? >> no, but i think the court has

to look at all of that, in the context, what the court has said, you have to look at the context in which the measure was passed. now, i will say, if i move to that point, this concept rational procreation, there is no way that proposition 8 prevents by keeping individuals of the same sex from getting married have anything to do with heterosexual marriage. same-sex marriage is not going to discourage heterosexual people from getting married. it is not going to keep them from getting divorced. it is not going to have any effect at all on their choice about having children. on the other hand, the elimination of proposition 8 cannot possibly hurt the heterosexual relationship at all. in this case, the w clear from the witnesses in this case, that there would be no

harm as a result of the elimination of proposition 8, and mr. cooper, quite candidly, when he was asked that question of the summary judgment hearing, repeatedly by the district court, what harm can there be? he said, i don't know. now what he meant and i'll let him speak for himself on this, but what he was saying is that we don't know the impact of allowing same-sex marriage and how it might affect this very important institution of marriage. well it's a very important institution of marriage, because it means a great deal to the citizens of this state. >> you know, if people in pocket election campaigns make all sort of non-sensical arguments -- >> i haven't heard that -- [ laughter ] >> -- not to vote for someone or to vote for someone, but you know, my point is this, that my reading of these cases suggests that this is a matter of what is referred to as legislative facts, that it really matters

not what a whole bunch of people might suggest one way or another. this is sort of a legislative fact thing that we look to, and if we can conceive, it can be conceived and argued that there's a rational basis to uphold the constitutionality of prop 8, that satisfies the test. >> several answers to that. one, this idea of legislative facts means that, instead of the witnesses that talked about the history of discrimination, the damage that discrimination has done, the immutable characteristic that we're talking about, people don't choose to become gay, they have a characteristic which this board and in the hernandez case and the california supreme court has talked about, and with respect to the immutability, if i can have a slight digression, is that all of the plaintiffs and other witnesses in this case, and the experts, and the judge's findings suggest that this is a characteristic that's immutable, and we have all of

those reasons why, and the long history of discrimination, which mr. cooper stipulated to, at the trial, the damage that's done as a result of the discrimination, all of this requires heightened scrutiny, but if you were to go to an imagined, irrational basis standard articulateed along the lines that you did, which i don't think is the test, i don't think that's an all consistent with the study of clayburn and not consistent with roehmer at all, but if you were to say that, what can we imagine, what conceivable thing can we think of that would justify doing the damage that's being done to our citizens in california? what is it? i don't know what it is. it can't -- >> well, just a minute. maybe i could maybe suggest a couple of things. do you believe that the idea of distinguishing marriage from domestic partnerships in name

only in order to promote it as a vehicle for procreation, responsible procreation, an inclusion of one group promotes legitimate government purpose, all things being equal, children are most likely to thrive when raised by father and mother, who brought them into this world, do you believe that would survive rational basis review? >> it would be flatly inconsistent with the evidence in this case, number one. number two -- >> it's slightly inconsistent with the evidence in this case, if you naturally jump to the conclusion that the only evidence in this case is that which the judge has suggest in the record -- >> well -- >> -- rather than that legislatures do things for their own reasons, and then the judge might find if there's evidence for it or against it. but i'm suggesting, now just sit

the question, the idea of distinguishing marriage from domestic partnerships in name only to promote it as a vehicle for procreation, all else being equal, children likely to thrive when raised by father and mother, who brought them into this world, that it is irrational? >> yes. in the first place, mr. cooper specifically said, just a few moments ago, the name is the institution. those are his words, virtually verbatim. "the name is the institution," and the witnesses at this trial, the witnesses that came forward and were willing to be cross-examined, and willing to testify under oath, not the law review articles and so forth that were put in by the proponents, but the witnesses that came forward in this case, and the plaintiffs, and other witnesses in this case, talked about what marriage meant to them, and what it means in this

society, as an institution, not just what the supreme court said, but we had what the plaintiffs said, what the experts said, what the supreme court said, and what the district court found, and there's nothing that would suggest that children thrive in a better way in that environment. in fact, the plaintiff, the p propone proponent's experts mr. blankenhorn testified that the children in those relationships would be better off, that we would be a better country, we would be closer to the american ideal if same-sex marriage were permitted. now it's easy to say those things, that you have to have a better situation where a child is in with a mother and a father, but allowing the other problem with that is that the remedy doesn't fit so the called problem. in other words restricting marriage to people of opposite sex doesn't mean that there won't be people in same-sex

marriages. that california permits that, and the court, there's something like 37,000 people -- children in same-sex households inle california today. there are also 18,000 same-sex marriages which are not at issue in this case. it's easy to say that children would be better off in that relationship, but if you have heterosexual relationships permitted in california, and marriages between persons of the same sex, it doesn't change where the children will be raised. if a child is a product of a biological relationship between a man and a woman, that's up to that man and that woman to keep them together. i think judge reinhardt suggested that a better remedy for that would be to prohibit divorce, but that's not something that californians are interested in doing. >> are we free to do, use anything other than the rational

basis test in the ninth circuit? >> oh, yes, i believe very strongly that you are. the hernandez case talks about immutability. to the extent that you're referring to any other aspect that the doctrine of heightened standard, i think that has been ventilated and the issues that would support an enhanced, heightened scrutiny are all present and you would be bound by what the supreme court has said with respect to that. >> but how about our whitten case? >> i think the whit case supports exactly what i was just saying. >> you argue factual circumstances are different in the whit case but i guess do you have authority that the factual circumstances alone would allow us to make a different holding than a prior three-judge panel?