>> i think that the hernandez case, which is a subsequent decision, already addresses that issue, and i think the case that judge reinhardt focused on involving the federal public defender i think was levenson, also addressed that point. >> well, it wasn't the case, unfortunately, but it was an administrative ruling. >> well, i thought the wisdom in that case was superb, your honor. [ laughter ] and the reasoning i think in that, i couldn't do a better job in answering the earlier question than the reasoning set forth in writing in that case. and with respect to the baker case, the supreme court has made it very clear that when the facts are different, and the precise issue is not the same, sexual orientation was not presented in that case, that was strictly a gender case, not a sexual orientation case.

the facts here are different, not just the roemer situation where california has recognized same-sex marriages and then has taken it away, but california has an interesting, crazy quilt system of laws in this state with respect to marriage. you, some people may be married because they're heterosexual and some people may not be married because they wish to marry someone of the same sex. some people were married to someone of the same-sex were to stay married but if they were to get a divorce they couldn't are he marry the same person and some persons that are out of state and if their marriage is legal outside the state, then they are recognized in california. we have an irrational system here, and finally, with respect to the baker case, the doctrinal ground has changed because of the supreme court's sex discrimination cases, and it's changed with respect to the roemer case, and it's changed with respect to lawrence versus texas. what this case comes down to it seems to me that california has

built a fence around its gay and lesbian citizens, and it's built a fence around the institution of marriage, which the supreme court says, not based upon sex or procreation or anything else, is the most important relation in life, and the citizens of california within that one fence, because of their sexual orientation, are denied access to what every other citizen of california has that are imposed within that other fence. that is a violation of the equal protection laws, and it's klaus a violation of the due process clause. >> are we view in the view of the way the supreme court has told us to decide constitutional issues that the broadest should

be avoided and the in a are rowest adopted. are we free to do anything other than california's repeal of an initiative constitutes a violation? your closing speech would require a holding that any state that did not permit gay marriage

would be in violation of the constitution. there say possibility i think in this case of saying that proposition 8's withdrawal of the right of gay marriage from gays and rez beans. lesbians is unconstitutional. lesbians is unconstitutiona under the circumstances they enjoyed that right, given every other aspect of marriage and all that is taken away is the honorrific designation. are we free to go beyond your ruling in your favor? a holding of the repeal to the right to marriage, the right to

use the label "marriage" and to receive -- >> from do i what i think is, i think the answer to your yes is that you could decide this on the narrow ground that the roemer case gives to you and put into conjunction with in re marriage from the california supreme court. but i think this case is -- i

roemer and exclude them from this part of society. awhat goal is california trying to accomplish and what it has accomplished in proposition 8, does it pursue those goals in a proper way. that's where the rational basis falls completely down. you might say left-handed people are color blind, you might make some distinctions but if you're saying they can't participate in a right because of an immutable characteristic you have not only a due process violation but an equal protection violation and ultimately that's the decision i'd like to see this court issue. >> thank you. >> thank you. >> miss stewart?

>> thank you, may it please the court, i want to focus on the circumstances in the context particular to california, that show how singularly irrational proposition 8 really is. first, and there are four things, but the first i want to talk about is that it imposes a special disability on gay people for reasons thaticalical has disavowed, and it doesn't attempt to pursue in any other arena. california regulates child rearing and parentage separately from marriage and proposition 8 has nothing to do with trying to promote one family for risi rai children over another. besides that california laws that do govern parenting and child rearing provide in every way that california law continues to recognize that same-sex couples and opposite sex couples are the same for purposes of family and child rearing in every way that matters. as the california court, supreme court held in strauss, the proposition 8 didn't change any of that. it didn't talk about children.

it had nothing to do with the rights of gay people took form and raise families. >> are we talking about a label here? >> we are talking about a label, your honor, but it's a very important label. it's, it does have great meaning and i think both sides of the table would stipulate to that, and i think the amount spent on this measure is testament to it. so that leads to my second point which is the proposition -- >> the reason i ask that question is, and it follows on a question that my colleague, judge smith, asked the other side, and that's this. is a state which allows, as california apparently does, everything short of the label in a better position to enact the proposition 8 than a state which allows none of it? >> your honor, i don't think it's in the better position or worse position, but what i would say is this. we agree with plaintiffs and we tried the case with them, that deny, treating same-sex couples

differently in regard to family is unconstitutional across the board. but what happens here in california, when you have the panaplea of parenting laws that treats them the same that underscores the rationality of the measure. >> how? >> how? >> because family law in california both recognizes that gay people do procreate, allows them to use assisted reproduction in the same way heterosexual people do, treats them the same way for establishing parentage, when it figures out who are the parents of a child, the sex and sexual orientation is irrelevant to the determination. it recognizes that both heterosexual people and sadly gay people as well can be irresponsible and walk away from their children. it doesn't matter how the child comes into the world. parents do that all the time, and the state's interest is exactly the same. >> but, but nonetheless, if the rational basis is that to do

this in name only is to promote it simply as a vehicle for procreation, then doesn't that survive the rational basis test? >> it does not, your honor, for two reasons. one, if first of all sail sme-s couples do pro-create. they don't do it the old-fashioned way to use from previous terminology cases but california doesn't discourage that in any way or say one is preferable over the other. if you were to think excluding same-sex couples would somehow encourage heterosexual couples to procreate in some different way or to be more responsible for their children you have to assume that there's some reason that including gay people will make heterosexual people less like will toy carry out their paint parental duties. the only way you could k get

there is to say gay marriage taints the marriage constitution. i don't think it does work, your honor. it's not rational and the only way it can be understood is saying there's something so wrong with gay people that they put a stain on marriage and they'll make heterosexual people there avoid being march rid and it just, equal protection doesn't allow that. so prop sis 8 regulates the title and the stature only as the ballot pamphlet pointed out. william estridge filed a brief on some of the law professors and says it better than i can, the fact that proposition 8 is symbolic and leaves rights in place and eliminating stature makes the imsult the legislature visits on lesbian and gay couples is obvious. proposition 8 is demanding the state we call gay relationships different even as it treats them the same and that's the

quintessential classification undertaken for its own sake. the third point is that strauss held that the way that proposition 8 did what it did was that it carved out an exception to the equal protection privacy and due process clauses of our state constitution, and that's pretty extraordinary. it made our equal protection clause in our state constitution. you have to be especially careful to consider whether it's obnoxious to equal protection. now any of those features that i mentioned alone would make i think the court have to have pause in looking at prop 8. when you take them together they leave prop 8 inexplicable by anything other than amnimous towards the class. the fourth point is the court doesn't have animousp the campaign demonstrates the purpose of the campaign was to be sure proponents avoided

associating marriage with lesbian and gay couples because it would demean the institution. it was bis aed. the voters amended the constitution, the state constitution to incorporate the measure after california supreme court rejected an on-state constitutional grounds, why? because it demeaned gay people, treated them as second class citizens, relegated them to inferior status. the voters, the campaign didn't say to the voters gee the court got that wrong. they said we have to put them in inferior status. if we don't -- we need children and everybody else to recognize that same-sex couples are different, they're not the same as opposite sex couples and they're not okay. and it portrayed opposite sex couples as traditional and ideal and it portrayed gay couples as a lifestyle that should be kind of kept in private, and the campaign leaders after the campaign wrote an article in which they said they deliberately tapped into voters' limited tolerance for gay people. the campaign went about portraying gay people --

>> i give you another 30 seconds. you're over, you voluntarily gave up some time. >> let me just say your honor close with this. proponents say in order to affirm the district court this court must find the majority who voted for proposition 8 for bigots and that is not so. prejudice by clee burn defined the belief one group is less deserving than others is not always born hatred. it may as justice kennedy said in garrett it may be the want of careful rational reflection or an instinct to guard against people that we think are different from ourselves. that sort of intent was what was underneath prop 8. it's plain from the face of it. it's plain from the campaign, and equal protection doesn't allow the state to enact a measure based on a view that some people are unworthy. thank you. >> thank you, counsel. mr. cooper.

>> thank you, your on why are. just a few moments, if you will, please, indulge me. first mr. olson spoke of the loving case at great length. but we know if mr. loving had desired to marry mr. jeter that the case would not have come out the same way. we know that with certainty because baker against nelson rejected that very claim and it rejected that claim on the heels of loving where the gay couple who brought that 14th amendment loving claim relied on loving very heavily. we also think that mr. olson is simply wrong when he says the baker case did not involve a claimed classification based on just gender. here's what the plaintiffs in

baker said. "there is no justification --" and this is throughout their jurisdictional statement, your honor, "there is no justification in law for the discrimination against ho homosexuals. appellants are being deprived of a basic right, the right to marry. as a result of this deprivation, they have denied numerous benefits awarded by law to others similarly situated -- for example childless heterosexual couples." this is clearly a case where they challenged the classification as one based upon sexual orientation as well as one based on gender. the loving case would have been on all fours, and would have come out, excuse me, the baker case would have been on all fours with loving, if it were a fact that same-sex sexual relations produced children the

same as opposite sex sexual relations do. then mr. olson would have a lay down case. there would be no basis on which to law a distinction to identify a distinguishing characteristic with respect to any interest that the state has the authority to implement. it would be no difference, and so the question is, does the state, does society have no interest in that distinct characteristic? we submit to you -- >> there's a case that suggest that or is that good argument? do you have a case to suggest that's the distinguishing characteristic or is that good argument? >> i think -- i think it's both, your honor. >> i guess i'd like the case. >> the case i am referring to is the garrett case, which sets forward the standard that i just quoted, and it in turn is

quoting the cleiburn case, they were held on distinguishing characteristics. i would also offer to the court as well the johnson against robison case, where the court said, when inclusion of one group promotes or addresses a state interest, and the addition of others would not, then the state is justified in acting upon those differences and drawing that classification. i would like to also refer the court quickly here, let me just -- >> nothing's been done very quickly here. [ laughter ] >> soi'm sorry? >> nothing has been done very quickly here. >> and when you're in the red that doesn't mean you have much time remaining.

[ laughter ] >> fair enough. if the court will just give me 30 seconds, because this is a point that is clearly very much on the mind of the court. the roemer case i want to share you the passage "yet amendment 2 in explicit terms does more than repeal or rescind these provisions. it prohibits all legislative executive or judicial action at any level of state or local government designed to protect the named class, a class we shall refer to as homosexual persons." the point is that amendment 2 was unprecedented. it was extraordinary, and whether it had repealed anything or not, standing essentially in its own shoes without with regard to the history behind it, it was unconstitutional, it would have been unconstitutional if it singled out and made a stranger to the law any class of

persons. again, your honor, thank you very much for your indulgence. >> thank you very much.indulgen >> thank you very much. thank all of you for a fascinating argument. the court will stand adjourned. >> all rise. >> court is adjourned. >> what?

>> follow me. how many in your party? >> here on c-span 3 we're live on capitol hill at the dirkeson senate office building where the senate judiciary committee will gavel in in a few minutes. the topic of today's meeting, should supreme court proceedings be televised? members will be working on pending legislation, what's called a markup, when they'll debate changes and modificationtors the bill. of course, this isn't the first time this issue has been considered by congress. while we wait for the committee hearing to get under way here's a look at what supreme court justices breyer and scalia had to say about the issue. >> i was very impressed and

moved by your explanation as to why you think it is so important for the public to understand and appreciate what judging is and what role it plays in our system. and i agree with you totally that not only is there the need but there now is the lack really of that understanding. and so i guess i say as not only one who's argued but also as a former law clerk who sat through a year of arguments and learned so much about the system in that process, why not open it to video recordings? why not in the federal courts give the public the benefit of seeing it first hand in your court and other federal courts and so appreciate really the quality as well as the diversity and the extraordinarily often excruciating difficulty of what you do? i'll start.

senator, when i first came on the court i was in favor of -- you're just talking about televising the arguments right? >> correct. >> not the conference. the brazilian supreme court, they televise their conference. >> i would never presume or think of televising the conference. >> thank you. nor would i. i was initially in favor of televising. but the longer i've been there, the less good idea i think it is. now, the justification usually put forward is we want to educate the american people about what the court is and what not. now, if i really thought the american people would get educated, i'd be all for it. and if they sat through a day of our proceedings gavel to gavel, boy, would it teach them a lot. they would learn that we're not most of the time looking up at the sky and saying, should there be a right to this or that? that we're doing real law -- the bankruptcy code, the internal revenue code. people would never again come up

to me and ask as they sometimes do, justice scalia, why do you have to be a lawyer to be on the supreme court? the constitution doesn't say so. no, of course it doesn't. but 99% of what we do is law. it's stuff that only lawyers can do. and if the people would learn that, it would be a great piece of education. but for every ten people who sat through our proceedings gavel to gavel there would be 10,000 who would see nothing but a 30-second takeout from one of the proceedings which i guarantee you would not be representative of what we do. so they would in effect be given a misimpression of the supreme court. i am very sure that would be the consequence and therefore i am not in favor of televising it. >> but it would for high school students or even middle school students and for the general public who were interested in an

important and pertinent case provide a means for them to see what -- right now only a very limited audience can view because of the size of the court. >> but for those who are interested in it, for those intellectual reasons, surely the tapes are good enough. >> well, the tapes, with all due respect, and i understand your argument, don't convey in the same way with as much interest the kind of debate, the back and forth that -- the visual sense of the action in court and i know and you know really how dramatic it can be. >> just sit there like sticks on chairs? there is not a whole lot of visual motion. there really isn't. >> it certainly is gripping if you're answering the questions.

justice breyer, do you have a different view? >> no, i -- sort of -- a little. but i think -- we're conservative and you would be, too, if you were there. the court has lasted the country well and served the country well for a long period of time. we're there for a short time. we're trustees. we don't want to make a decision that will be nonreversible and hurt the courts. you start there. then sometimes i think, you know, when we have the term limits case out of arkansas, i just wish people could have seen that. it was such a good case. i mean, you had jefferson and story on one side and madison and hamilton on the other side. it was the term limits. what you saw is everything evenly balanced with the precedence and what -- i won't go into the case but if they could have seen that across the country people would have been able to see in that oral argument nine individuals struggling with a really difficult and important

constitutional question that would have been good for the court and everybody. all right. so what's the problem? well, one problem is that we're a symbol and if it were us in our court it could probably be in every criminal case in the country and you would get rid of what? what do we do with jurors? what about the criminal witnesses, etcetera? you don't know what happens. or would people come up with a misimpression, namely the oral arguments 5% of the case, 3% of the case, it's really done in writing and they don't see that. more importantly, people relate to people. you relate to people. i do. when you see them, they're your friends or not or whatever. but we're making decisions that are there to affect 309 million people who aren't there. and in our minds, we have to take those 309 million into account. will that come across? then there the problem that justice scalia mentioned, which

is nino says quite right, you know, you can make people look good or you can make them look bad depending on what 30 seconds you take and it's already personality and let's not make it worse. we wear black robes because we are speaking for the law not for ourselves as individuals. and that's a good thing. add those up and you say, i don't know. i would like to know more. i really would. there are places that have it and don't have it. there are courts that have it and others that don't have it. there is canada that has it. there's california in some situations. you have a hundred different situations in respect to for b anybody that has an interest in this? but pew or some of the foundations and see what happens to attitudes, to judicial oths. so what you're getting, i think, and maybe eventually, you know, it's going to be there is no other way to see things but visually and everybody is doing that and it would just seem weird what we do now. and it'll all change.

but before that time, i think -- a little boring but i think information is something that would make me easier. and until i become easy about it, until we become reasonably convinced that won't hurt the institution, you're going to get a conservative reaction. that's what i think is the truth. >> senator, it's maybe unfair to put this question to you since you're such a youngster here. but do you really -- >> that's the best thing said about me in a long time. >> do you really think the process in the senate has been improved since the proceedings have been televised? >> well, just as you took a pass earli earlier, i think that there are mixed views but in generally think that openness and transparency improves institutions. and for all the reasons that you have so eloquently talked about your role in educating the american public,