i am not a member of the nsa team and i do not apologize for that to anyone. thank you for your time and i look forward to the question and answer. over the next few hours or cspan 3, we'll look at federal cases in the national supreme court. up next, oral arguments from a lawsuit transmissioning michigan's bang ban on gay marriages. -- after that, oral argument and american civil liberties union versus clapper on the national security agency's collection of americans' phone records. and the conversation on cameras and the court, and other issues of supreme court transparency, and later, a discussion on judicial independence.

on monday, the supreme court decided not the hear -- michigan was not among those states so it's ban on same-sex marriage was not affected. up next on cspan 3, the oral argument on michigan's ban on gay marriage.

whether a district court can disregard a directly -- namely baker versus nelson, and the bigger picture, it's about what federal rights in the creation of a new federal constitutional right if that should be done through the amendment process or by the courts on the subsequent due process doctrine. so there's common ground on this case, but the u.s. constitution doesn't directly address same-sex marriage, seems to turn to the subject of due process. is whether or not the right that's being asserted is objectively, deeply rooted in this nation's history and tradition. and you can't conceive of liberty and just without it and same-sex marriage does not have that necessary historical deep

root. >> what do you say about the fact that one could have said the same thing about lawrence? >> well, respect to lawrence, the lawrence court has not -- repeatedlied apply the analysis and recognized the continuing way they're supposed to analyze subsequent due process. this court has continued to apply lucksburg has recognized that that's not the relevant standard. lawrence doesn't override or reverse all the cases before it, it takes the same test simply by not mentioning it, so this court is still bound by it and this court's precedent applying lawrence. >> what about baker, you mentioned that early on, it's not a very long opinion, i think you would acknowledge. a lot has happened since then, i

think you would also acknowledge that. how do we deal with it? >> i think this court is bound, the length of it doesn't matter. the united states supreme court has repeatedly said that summary decisions that it makes are binding on the lower courts, there are marriage determinations and this court has reiterated that, such as the spaum -- summary dispositions are still binding unless reversed by the united states supreme court. so i think that -- >> there's a little more give and take in it than that. the doctrinal developments, the doctrine that has grown out of other supreme court cases, we're still dealing with some doctrinal elements in this area of the law, are we not? >> two answers to that, first of all the doctrinal developments

that was mentioned in hicks, hicks also says that courts are supposed to follow the supreme court's decisions, until it overrules them and sweubsequento that, this court has also made this point, if a decision of the supreme court appears to rest on a lot of cases and it has been overruled, it's up to the supreme court to override it. but i disagree on the doctrinal developments point too. for example, roamer doesn't do anything to undermine the fundamental rights aspect of baker versus nelson, both questions were presented in baker versus nelson, whether there was a drew process right and also there was a -- >> you don't think lawrence, a ruling that came out a few years before that indicates a doctrinal development? >> i think that shows a doctrinal development in the area of the right to privacy, i don't know if that necessarily shows a doctrinal development in the area of the fundamental

right to marry, which is a public recognition, it's not a right to privacy. so i think lawrence decided on a different subsequent due process ground, so it doesn't have anything to say about the fundamental right to marry. >> what about the loving case suggests that the policy and the laws against massagenous -- >> it was about the fact that there was racial -- violation of the law with the supreme court in loving recognized. so the fact is racial discrimination. >> what it was, was it not, the law across a huge swathe of southern states at the time. that was a vote by the people of

many states against the possibility of interracial marriage. and the language in loving says the right to choose whom to marry is a fundamental right. >> to the extent that there's an attempt to -- the supreme court rejected that express analogy in the baker case, just as a matter of what has the supreme court done -- >> so what you want us to do is take an 11-word opinion and knock out all the efforts to, all the opinions that have come out involving same-sex marriage in the last ten years, 11 years? >> it hasn't been that many. the first circuit recognized that they were bound by baker, there were other courts who recognized they were bound by baker. that's just a question of judicial hierarchy. if the supreme court wanted to

say that the freedom to choose whom to marry was not limited to someone of the opposite sex, when they had the opportunity to do that and they didn't do that, that question was direct lly presented to them. so that shows there's a difference between race, which does not go to the heart of what marriage is. >> you would have to concede that in terms of what the electorate wanted, the loving decision went against what the electorate wanted in much of the south when it was announced? >> i think it did not. when you talk about what the electorate wanted, the electorate wanted to end racial discrimination. >> the tennessee constitution provided, quote, the intermarriage of white persons with negros, or persons of mixed blood descended from a negro to the third generalati-ration

included. in march of 1978, the tennessee electorate was asked to repeal that provision in the constitution and they did so, but they did so by a mar jing of only 89,0,000 votes out of half million. >> i think it did also choose racial discrimination, that just shows that people can make decent and rational decisions, it didn't moon that the history of this court with respect to the issue here, which is same-sex marriage, and if you look at windsor, it is very instructive, the historical analysis, section 3 of windsor talks about the history and tradition of marriage. and the history and tradition of same-sex marriage.

it recognizes only in recent years that that was even deem possible. >> that's true, but if we take this case to be about the right to marry, and not the right to marry a person of the same sex, isn't what's going to happen around the country pretty clear, and what is happening pretty clear? if what you're saying is are there trends by people to change the law -- >> what is the issue, is the issue right to marry here, or are we dealing with the right to marry, or are we dealing with something like, oh, what were those cases, the right of inmates to marry, the right of deadbeat dads to marry, i think it was judith kay that said fundi fundamental rights are fundamental rights. that's quite different from

saying there's a deep -- so subsequent due process, those cases involve limitations that were not deeply rooted, they were not inherent to what marriage represents through history. the opinion said that the marriage between a man and a woman has for centuries been recognized as fundingmental. the fact that marriage has been defined as between a man and a woman, that was true to the definition of -- it's role and function throughout the history of civilization. >> marriage is always about changes in social mores and maybe originally marriage was encouraging appropriations, channeling possibilities, but marriage is more about love, affection and commitment, and when you look at it that way,

it's hard to rationalize -- not being a fundamental right, that doesn't answer the question that really was the holding in all four of these cases, that it doesn't even survive rational basis, what do you do about the difficulty of if you think about marriage, just through that lens, love, affection and commitment, it does start to get a little difficult to see the difference between the one group eligible and the other group not. >> i agree when you focus on fundamental rights history is the focus, and so the question is, i guess the preliminary starting question for the rational base increase is why is a state interested in marriage in the first place? why is a state interested in emotional connections between people? we discussed this in our brief. the state doesn't have an interest in regulating friendships, doesn't regulate how many people can be in a

friendship or huow long the friendship has to exist. the reason the state has interest in marriage, is because marriage is linked to children, the bringing of new children into society and how is society going the make sure that they're cared for. so it's rational for the state to have an interest in promoting marriage so it will be more likely that a child will be -- have both a mother and a father and will have the benefits of having both a mother and a father. remember in the trial below, the plaintiff's said conceded that there are differences between mothering and fathering and there are differences between each one. >> but what is the basis of excluding everybody else. it doesn't interfere with the procreation of children just because you've got two people of the same-sex marrying, and in some of those marriages, at least one of the partners is able to procreate.

>> i have free marriage responses to that. but i have to first appointment out that under the rational standard of review, that's flipping the question, the robeson case leaves this out very clearly, it points out that the question for rational basis review is whether the state interest that's being put forward is if it's being advanced by including a first group, or including a second group that does not advance that interest is not irrational, does not extend benefits, so that case again was about veteran's benefits, the question is state -- is having people to fight in the armed services and the benefits are extended to benefits and encouraged people to join the military, and the question was through conscientious objectors, are they entitled to these benefits and that would not advance the state's interest in making it more likely for people to fight in the nation's services. >> so you would say that what we're trying to do confining

marriage to opposite sex partners is to encourage procreation? >> i think that is one of the state's interests is making sure that procreation, for one, occurs in long-term committed relationships between opposite sex couples where procreation -- >> isn't that a little hypocritical then to -- to allow people to marry who can't procreate but not allow same-sex couples to marry? >> not at all, your honor, because the state would have the ability to say to the not same-sex couple, are you going to procreate, that, the definition of marriage has always recognized the opposite sex couples are allowed to marry. so you wouldn't even get that perfection question, right? >> you would acknowledge that there are benefits, important benefits to the state beyond procreation, i should think, the benefits attendant, and the

benefits and responsibilities attendant to marriage seem to bear on the question we are adjusting here, is whether or not those matter to a state that says, as virginia did, we have no interest in licensing adult love. but there are these benefits and responsibilities that would be important for the state, taxes, somewhat consistency among the members of the -- married members -- folks in marriages all throughout the state all would have the same responsibility, those sort of thing. >> i think there would be other benefits from people -- >> the question here is what it's at least a rational state interest to try to make it more likely that every child can have both a mother and a father or whether it's at least a rational state interest to try to

recognize that as a biological reality, opposite sex couples can have unplanned pregnancies, whereas same-sex couples can't, so extending marriage to opposite sex couples addresses that concern and offering to same-sex couples doesn't. so there's at least a rational basis, that is also necessary, there are other basises for marriage, but that doesn't undermine that it's rational for the state to be promoting these benefits. >> as everyone acknowledges, recent cases have not assigned pure rational basis review. >> the -- >> we know that from windsor, the subject was difference in rational basis review. >> but windsor--excuse me, roamer starts out by talking about the conventional inquiry of rational base review and talks about whether there's a bare desire to harm. so windsor does the same thing, when we're requiring a bare

desire to harm, in order to set aside a rational basises. the presumption should be what i started out as, the voters are rational. that's what the rational basis test is if there's a conceivable basis, that's a reason to uphold the law. and this is a democracy promoting rule, it allows the people to make the rules, this is something that the people could decide to change tomorrow, by amending the federal constitution. it's not that the court is the only recourse for creating new rights. in fact the court shouldn't be creating new rights. the third basis is the fact that there's uncertainty in this area, it's such a new thing that it's too early to tell. the plaintiff's experts conceded that trying to study children

that are raised in a same-sex household -- there hasn't been a single comprehensive study that's been done of children rationally raised in a same-sex marriage. so a rational person, even somebody who would vote in the future for a same-sex marriage, a rational person might think it's too early to tell, amend it's at least rational to wait and see. so there's a number of different rational basises. >> you were talking about rational basis review, if you get to strict scrutiny or intermedia scrutiny through one path or the other, would you concede the state has a problem? >> no, your honor, it would depend on the intermediate scrutiny under the protection clause, setting aside the fact that this court has three press didn'ts -- even if those weren't there, under intermediate

scrutiny, biological differences between men and women can make a difference. the biological ins case, a case in which mothers and fathers had children from outside the united states, it required men to prove to a higher level or degree that they were the father and required women to prove when they were brought back to the u.s. so it's possible to survive under intermediate scrutiny. and the other question is under the equal protection law, the law is neutral and the law also has no intent to harm. that district court case recognized that it was impossible to say -- the only thing that's left is the spirit impact. and under washington versus davis -- >> how is it -- defining marriage as including one group but not another? >> defining marriage as between a man and a woman.

>> especially neutral gender wise, i agree with that, but i don't understand why it's basically -- >> i think the answer would be that it doesn't prohibit them from marrying, either. and so it's -- there's no evidence this was done to try to exclude them. the evidence is that it was simply continuing the definition of it throughout michigan's history. so the only reason -- that's the answer. >> so can i ask you, you mentioned the sixth circuit. precedence. i assume you're talking about davis? >> davis and quality foundation, yes, your honor. >> the problem with the quality foundation is, as i read it, it depended on, its relied upon the supreme court's bowers decision, which was reversed in lawrence.

so i wonder. >> the equation foundation only mentioned recent history, and it was under roamer. so it doesn't rely on bauer. the reliance doesn't talk about bauer. and this court even after lawrence has continued to apply the same -- >> i have to tell you, we are sometimes perfectly capable of blindly applying cases. i'm not sure i would be willing to say that we did in davis. but that has happened. >> so, you know, if you were to lose under either one possibility is there's a -- another possibility is there's heightened review, which makes life very difficult for justifying the law. were there practical

implementation problems? i mean, you know, with brown, you could say the only implementation problem is resistance. but it was pretty easy rule to implement, right? and i guess what i'm interested in from the state's perspective, is this -- there may be controversy, there may be resistance, but why is it difficult as a matter of implementation to implement this new rule? >> so if the outcome were that same-sex marriage was unconstitutional, it would be hard for the state -- >> what problems result? >> i think if you're talking about what possible harms might come from changing -- >> what implementation problems -- is it difficult to adjust state laws on marriage, divorce, anything else? or is it really pretty simple? you just now include this new group -- >> it would have widespread

impacts. i'm not quite sure how all of those would play out. >> what would they be? that's the question, what would they be? >> as far as changing all the laws about marriage. and in the big picture, one of the things that could happen if it were changed, and this is something that there would be no institution in michigan would say it's important to have both a mother and a father. so in terms of societal impact, i think there might be harms such as to -- there would be nothing to say that it's important for fathers to be there and mothers to be there. >> do you honestly think that's what's happened in the states where same-sex marriage is now valid? >> it's too early to tell, your honor. it's only been 10 years since the first state passed it. >> now we're just something beyond 25% of the jurisdictions in the country, and probably more than that in terms of, maybe more than that in terms of population, as a whole.

and it doesn't look like the sky has fall on ien in. >> the point is it's too early to tell, when you're changing a fundamental element of society, you can't see the possible outcome on children. >> i thought there was a lot of evidence offered at the trial in michigan that indicated in fact that the outcome on children was reasonably benign, given what they know at this point. and you're going to say, i see it coming, it's too early to tell -- >> i'm going to say that, i think that's a valid point, your honor. >> but then the people who tried to come in on your side of the trial and present all these terrible impacts that they said this would have, i mean there was even a texas professor, where they had a disclaimer on

the university of texas website saying don't believe anything this man says. >> your honor, the fact that one particular social scientist -- i think the picture -- the big picture is it's simply -- this is something rational people could agree with, it's a point that justice alito could recognize, that it's too early for social scientists or philosophers to be able to tell. >> isn't it your point, mr. lindstrom, that it's disparaging the votes of citizens of michigan, is that -- i should think that's -- >> i definitely think that it plays into the consideration very heavily. to say that for example, this is under rational basis review, to say that michigan voters didn't have among them, out of all 2.7 million, a single rational basis and it's just not possible to have a person of good will disagree. >> there were two people from ohio, might be able to accept that argument. >> fair enough.

so i think the numbers are in ohio are up. >> your red light is on. >> dates of the last time the people of michigan voted was something like 2020 -- 10 years ago. >> that's why people may decide it's unconstitutional. >> for 50 years the supreme court has recognize that the freedom of personal choice in matters of marriage and family life are liberties protect # by

due process. we find 34 this case that no matter what scrutiny the court provides, the state can't prevail here. the michigan marriage amendment is unconstitutional. a starting disagreement between the parties as the court has already observed, is an articulation of the right itself, it's the right to marry --- >> i realize before windsor, the first and second circuit said that baker is binding, post wind sor sorry, there's no majority recognizing that, i have to say, i find that a very serious issue, the thing that's coming on is you, oddly enough, we treat some reversals as binding precedent no less than a fully written opinion. everyone understands that's

true, there's this language that judge dat try pointed out. it then later says, follow this until i tell you otherwise. but even when you see one line of case crumbling, lower courts are not able to an tis pat forly jufbd -- just as a matter of hierarchy, aren't we stuck with baker? >> this is a one line summary affirmness -- we believe that romer, windser, lawrence constitution that doctrinal

development. >> when you said doctrinal development, is it fair to paraphrase that to mean reasoning that's inseptembtent lines of development. >> there's evolution of these concepts, evolution of due process concepts, evolution of -- >> that is increasingly inconsistent with baker, that's your point, right? >> it's totally inconsistent with baker. >> okay, but isn't that agastini? >> agastini is distinguishable, agastini was a full opinion that had you don't know what the

rationale for the court is, you don't know what the court based its ruling on, and that's what's distinguishable in this type of ruling. >> that's why the supreme court is very casual about ignoring them, but i didn't think that rule applied to the lower courts. >> the second circuit in league of women voters of nassau county -- they can be informed indirectly by doctrinal developments, so they held or or what we would say is here are the doctrinal developments, this court can make this call despite baker, and every court in the country has, you know, ruled this way on baker. >> i wasn't sure on the first and second circuit, before

windsor. >> windsor is at least a reck nix of the same-sex marriage case, so it's the greatest, i would argue, doctrinal development case. >> lawrence and romer were doctrinal developments too, i think you rely on those cases. >> we do. >> and that didn't alter their view of how to look at this? >> didn't alter the second circuit's review before windsor, one of those cases was windsor itself. >> i understand that, the court in perry -- let me do it this way, the supreme court had this issue before it. there was a discussion on the record with i believe justice ginsberg, talking about doctrinal development and the court didn't think anything of that argument. now granted, they decided that case based upon standing, but

you know, the court doesn't think much about that, it didn't even mention baker, and the court allowed california's ban to be struck down. >> it would have been pretty strange for windsor to say anything about baker given that the companion case to windsor is holingsworth. >> i understand that. we are not asking to redefine the marriages relation shims. we're only asking for same-sex couples to marry. >> when you're talking about getting that right, that's what your clients want, the state to

license their relationship? >> that's correct, and the right to marry, yes. >> okay, well the import there is something different than what i thought you were talking about. you want them to recognize it and the state to license it? >> we do. >> okay. >> the central attribute of marriage is the freedom to marry the person of your own choice. the court must make a description of the fundamental right asserted but there's a long history of decisions defining that right, loving versus virginia-- >> take the loving point. i just -- that's a '57 decision, so in 1968 say a gay caucasian man and a gay african-american man go to virginia to speak a license to marry, do you really think loving controls that case in 1968? >> well, i think the court by

citing loving, by tradition thinks there's no difference between an interracial marriage or a same-sex marriage. i think it's going in that direction. >> that's a difference from saying what loving stands for. isn't my question about what happened in 1968 pretty obvious because we had baker in 73. >> i think that lawrence -- that justice kennedy tells us something about how the court may be viewing these cases. and i think what he's saying, and i think you see it in law r lawrence and we sigh it in windsor, we now understand that these are now going to be framed as discriminatory, we didn't know anything about same-sex

couples because of -- they were hiding because their conduct was criminalized. so i think, you know torqu, to would the argument have held water back in 1967, it was a different time. >> i know that there's many significant benefits, some of them monetary, that get extended to same-sex couples if you win here and that's significant. but i have to believe based on a brief that the most important thing is respecting dignity and having the state recognize these marriages the same way heterosexual marriages are recognized. and if the key elements here, it's just something i'm missing. but i would have thought that the best way to get respect and dignity is through the democratic process, forcing one's neighbors, co-employees, friends, to recognize that these marriages or the status deserved

the same respect as the status in a heterosexual couple. it's just funny to me why the democratic process which seems to be going pretty well, nothing happens as quickly as we might like. but i'm just curious how you react to that point? >> the michigan marriage amendment gutted the democratic process in michigan. voters can no longer appeal to their legislators. secondly, the usual deference to the legislative process evaporates if there's a reason to refer antipathy. there's plenty of reason to infer antipathy here. you have historic discrimination, persecution, criminalization of same-sex conduct throughout history. >> michigan voters have put another initiative were put in front of them, certainly it would be a different vote, and it might well be a different outcome. >> the practicality is the michigan voters in order to get this before them, you have to

come up with signatures of 10% of the total number of voters in the last election. secondly, don't you think you're more likely to change hearts and minds through the democratic process? >> fundamental constitutional rightless may not be submitted to popular vote, they depend on the outcome of whole elections. my question is assuming you can win on this, my question is, why do you want this route? it may be the better route for your client and you're lawyer, you have to keep the focus on that. it's not 100% obvious to me it's the better route for the bay

rig gay rights community, that's not at all obvious to me. >> the government made that same argument, they said, just wait for the passage of the era, that was in 1973, we would still be waiting now, there's injury, the band brings injury here, marriage provides unparalleled social legal mutual responsibility, dignity, it is security, it is a status, it is stability. but the plaintiff's losses go well beyond the depravation of the right to marry. michigan's laws are pervasively discriminatory to same-sex couples. they're destabilizing these families. april devore is a legal stranger to her own skon and the -- it also brings the loss of economic resources, the ban brings psychological gyrery.

we had the doctor explain that no matter how confident, how devoted, how caring that second parent is from the child's perspecti perspective, some children will suffer from a seemingly nonperm nemt relationship with the second parent. these bans humiliate families, they deval same-sex couple -- the ban brings shame to these children. a prek459 -- special needs children, hard to place children, foster children, they took them in. >> these arguments seem really powerful if you get heightened scrutiny, and maybe dispositive. but do they suffice such a

rational basis review? >> under rational basis, we think the marriage amendment flunks the national basis, it requires a connection between the state's articulated purpose and the law itself. first of all, the mother-father rationale, the ban as the judge indicated is not increasing those mother-father families. it's not deterring same-sex couples from marrying, from having children, from raising them responsibly. >> but i mean rational basis review allows under collusive and overinclusive laws. that's really the whole point of it, that you can -- the legislature can address a problem one step at a time. and the fact that it's over inclusive or underinclusive, that's what the court means when it means improve denlt decisions will eventually be corrected through the democratic process. it seems like that's your coin here, it's underinclusive, if you care about children, you

should care about the children in these marriages. if you care about love and affection, you should care about these couples. they're just as capable of love and affection as the others. but that's just not how review of national -- >> cases striking down laws that are, quote, riddles -- striking down laws suffering from that mystic classification that identifies reported state interests. >> those are unprecedented laws. windsor and roamer was unprecedented lawings and if there's one thing we know in this case, this definition for better or worse, is not unprecedented. >> well, i think that -- to the extent that the court confers this a one-factor test now, let's just assume for purposes of argument that the test is whether it's -- i don't agree

that it is a one-factor test. what i see the court doing is looking at these laws in full context, a number of factors, using a more totality of the circumstances aapproach, it matters that these are intensely personal rights as opposed to the dance versus brady, beach -- it matters that this was a constitutional amendment and i'll distinguish that in a moment. >> in one of those reps--an age discrimination case, it's a very personal right, it's saying that police officers have to retire at age 50 and there's a correlation between age and physical fitness. of course that's a ridiculous law in terms of overor under collusiveness, because you have 50-year-old triathlons. but the court still upheld the law and i'm sure it was deeply

offense to 50-year-old, 51-year-old police officers who were more fit than their 40-year-old colleagues. but that just gives you a sense of how tough it is to get through rational basis review, or overcome it. >> the rational basis standard is in the a toothless one. social security to some illegitimate children, not others. contraceptives to married but not unmarried persons, courts call that in rational basis review, underinclusion. in moreno, only hippies were denied food stamps. all of those were rational basis cases, johnson versus roberson shows that the state only needs to show that the inclusion of the excluded group shows a misrepresentation of the state. the court found that the line drawn there, rationally distinguished between the two groups, that there was good reasons why conscientious objectors could get veteran --

the court ruled that the groups were not similarly situated in respect to those benefits. the purported justification for the ordinance made no sense in how the law treated other similarly situated in important respects. here's the problem that we have, with the biology of the rationale. in michigan adevelopmentive parents have the same legal rights as -- so the ban doesn't logically further any of those ties. remember, cases are struck down under rational basis that are riddled with exceptions. so the ban doesn't logically fit that rationale. timed appropriation to marriage. another disconnect. people can marry without having children, and people can have

children without marrying. the equal protection constitutional law doctrine distinguishes between marriage and procreation. in griswald, a contraception case, the court found that married persons have a constitutional right not to have children. in skinner, as far back as 1942, habitual criminals can't be subjected to forciblesterization. >> what about the problem with unintended pregnancies? >> with unintended pregnancies, there's e ee there's another disconnect. again, it's the same problem, with procreation, the ban doesn't do anything to disincenti disincentivize -- marriage gives them that already. so this idea of accidental procreation it's really a nonrationale because there's a

disconnect there, between the purported purpose purpose and the classification or the law that was in place. the right to procreate is clearly independent of the right to marry, justice scalia said that in lawrence. and the bottom line is while many people within marriages do in fact procreate, courts do not require procreation as a constitutional right. the state is now argue iing tha the facts will matter. that the voters must have believed that the mother-father families ay s aries are prefera. that claim is based upon the irrational speculation, it's based on disproven irrational speculation. parents are important as people. two parents bring double the resources t parent-child relationship matters most. the relationship between two parents matters, and please note

it's in the district court t state fully engaged in this trial process. they offered expert trial testimony on the mother-father rationale on the biological tie rationale. >> there was a question about pacing, which seems to me to be at the heart of this, at least in one way of looking at it. a book that said in 1985, 25% of americans knew someone who was gay. by the year 2000, it was 74% of americans knew somebody who was gave. and when you see that statistic, you think that social science statistics had nothing to do with this, all of this had to do with the concept of -- knowing they can have great relationships, be great parents and so forth. and what's a little odd to me about the plaintiff's positions in these cases, is it doesn't

show much tolerance for democracy's sometimes being a little slower than we would like. i mean we have columbia, one way or another now recognizing gay marriage. and we have a lot of other states that i suspect are pretty close. and some other states that will probably take a little longer. but the change -- doesn't have to do with social science. the change has to do with people knowing one another and seeing there's no reason for these distinctions. and it's just odd to me that, you know, the supreme court chose not to deal with this 62 years ago. that's something of a pacing decision. it's stayed its hand. it stayed all these decisions. it's something of a pacing decision as to when the right is recognized. and i guess it's just odd to me that state legislatures don't get a little bit of the benefit of the doubt in terms of when the pacing is right for them. >> again, in michigan it doesn't

matter what the legislators do anymore. it's a constitutional ban. >> i think four of the states did this initiatives. in other words, four of the states ruled -- came out the right way from your client's perspective from initiatives. so initiatives are just as effective as legislation on this point. >> ours would have to be repealed. we talked about that already. but in addition, judge freedman found that the constitution is for the hearing now. this court doesn't have the luxury of dodging a constitutional -- dodging a constitutional challenge. and i understand that the court in perry didn't decide the ultimate question. the court looks to be telegraphing in windsor in terms of some dock ternl change. if the court wiz intending on telegraphing it works. 20-straight decisions where bands have been struck down.

the constitution is for the here and now. >> sometimes the federal courts wait until there's little bit more of a majority states. so all you have are outliers. that's when the supreme court steps in. >> well, i don't know about numbers and i don't know how many were in line when the court decided loving. but we are the fly-over states. we are tennessee, michigan, texas and ohio. and nothing has been happening to help gay and lesbian people for decades. and on the coasts, things have worked and that's wonderful. >> cincinnati charter was repealed. >> that's one urban area. i can tell you in my state, nothing is happening to help gay people. in terms of the science you talked about that. the science is not nasent. this is a consensus born of 30 years of research on same sex parenting. 50 years of research on child

development. and we learn from the state's own expert that the government in large universities have stopped funding in this area on this topic because of the social science consensus. the wait and see approach is not itself a rational basis. it's not even a reason at all. there's another invidious underinclusion. no other group in society has to pass a parenting competency test before they're allowed to marry. there are groups of parents in society that we know tend to have children with poorer outcomes on average. parents who have low incomes, parents with lower educational levels, parents who marry, get children, get divorced want to marry again. there's no competency test for these parents but we don't bar them from marrying nor do we bar them from having children. an argument has been raised that a decision striking down the ban would intrude upon religious

freedoms. judgment for the plaintiffs will not require any change for religious institutions. they would be free to practice their sack rimts, their rituals, their traditions as they see fit. and just like the 10th circuit in the kitchen case, this court can specify that no religious cler gi will be required to sol miez of his or her own religious beliefs. religious conflict is not a basis for denying fundamental rights if and when the case is presented to this court alleging a religious conflict the court would have to balance competing constitutional rights the way it always has. again, mar bury versus madison requires the court to do. you would look at the higher archiof rights. the level of intrusion is great and the court would render a decision. we've also alleged that intermediate scrutiny applies here because plaintiffs as gay and lesbian persons qualify for kwauzsy suspect class status.

we renew that argument here and defer to our brief and wonderful brief of the constitutional law professors that scrutiny would apply here based upon quasi suspect class. just briefly, we believe that equality foundation can be revisited by the panel. it does not require a decision because this was -- there's an inconsistent decision, equality foundation was, inconsistent with the supreme court that requires modification. the inconsistent decision we believed that the court -- it either could be lawrence or clee burn. the court has an obligation or did and does now to apply the clee born factors and the court clearly did not apply the clee born factors. davis and scar bro didn't have to address really the standard of scrutiny because, you know, they decided for the plaintiffs on other grounds.

the majority in lawrence through justice kennedy referring to the authors of the equal protection clause and due process clause wrote that they knew that, quote, times can blind us to certain truths. and later generations can see that laws once thought necessary and proper serve, in fact, only to oppress. in our case as well, we should remember that over the course of history on occasion we as a society have lost our footing. and our humanity. and eventually we right ourselves most often through the federal courts. the united states constitution gives us a backbone and a load star in an ever-changing society. it was written for all citizens, for all time. it's simple. it's genius. it's dynamic and most of all it's humane. it can and must be interpreted to acknowledge a changing society. and an emerging recognition that some laws do discriminate against the marginalized, the

unpopular and in this case the most vulnerable members of our society. we know better now. there's no reason to treat people this way. we ask that you affirm. >> thank you, ms. stanyar. mr. lindstrom has some rebuttal? >> just a few quick points, you know. our society has a mechanism for change. that's the amendment process, substantive due process. it's not a mechanism for change. that's a mechanism for preserving things that are deeply rooted in history. there's an amendment process that's available at the federal and state level and that's the state -- for example, the state level, there were six things on the ballot in 2012 through the initiative process. it's quite common in michigan. there were six different measures. and that goes to the point that it is the state that has conferred the dignity that was discussed in windsor. windsor repeatedly in discussing

the dignity talked about it being the dignity conferred about the state and goes back to the point about democracy. they confer that dignity by voting for it. the right process is not through the courts but through the people. for example, in maine, maine went one way in 2009 legislation pased a law recognizing same-sex marriage. people reversed course. so democracy -- >> can i ask mr. lindstrom do you have any idea how long it would have taken in the south? what a shock that was down there? >> well, loving, again, violated the equal protection clause itself because it violated -- imposed invidious racial discrimination. >> all right. well you told me that before. is the point to be made that the reason that there hasn't been

more in the way of analysis of discrimination against gay and lesbian people is because up until just 11 years ago their conduct could land them in prison in many places. so, you know, you can't say, well it's not deeply rooted that they have a right to marry because aside from the right to marry, they might have had the sheriff in the hall outside their bedroom trying to find out what they were doing in privacy in their own homes. >> well, if the question -- i think that would be a question about whether it's the right to marry or the right to same-sex marriage. and i think windsor answers that question. windsor talks about the history of same-sex marriage and recognizes that's not deeply rooted. again, this court has repeatedly -- >> because the conduct at the basis of same-sex marriage was until 2003 potentially criminal.

does that not make any difference at all? and then the supreme court told us that, in fact, it shouldn't be considered criminal. that's where the almost i've heard people refer to it as a tsunami of action has occurred. and it was back in that beginning of that period when we had the michigan marriage amendment. was it not? i mean, i thought we cleared that up. >> michigan occurred in 2004. that's correct, your honor. but, again, lawrence was about substantive due right to privacy. it's not about the public's recognition -- >> it was about the fact that that conduct could no longer be considered a crime. and it could no longer jeopardize somebody who engaged in that conduct with the prospect of going to prison. >> that's true. but this court also recognized, for example, in justice

o'conneller's, applying the same analysis to marriage, there's a difference between private conduct and public recognition when you think about the fundamental right that's at issue. this court has to look at the guide post the supreme court has recognized. the reason for that goes back to the importance of democracy in our system. this is something where the most basic right we have as a people is to decide public policy questions on your own and we can do that by amending the constitution, but it shouldn't be up to the courts to take these out of the hands of people. and it seems particularly interesting here where there does seem to be a particular trend that the political -- that society is moving in. so, it may -- this is one of the points and one of the descents in windsor, but it recognizes that the victory that is earned through the political process a truer victory. and it deprives to -- the court deprives people an honest victory and honest defeat in the political process.

if this is an issue that's left to the states under the constitutional system and rational to the people to continue to promote the idea that in general it's a good thing that children have both a mother and father. so we would ask you to recognize the fact that a decision taking this out of the people's hands undermines democracy and says this is not an issue that people of goodwill, reasonable people of goodwill can disagree about. and i think this is an issue of reasonable people can disagree about as you can tell by all the voters in the sixth circuit that have weighed in on this issue. >> okay. thank you, mr. lindstrom. we appreciate both of your sets of briefs and your oral arguments today. thank you. and the clerk may call the next case. now another court case on gay marriage. this one from ohio. a three-judge panel on the sixth circuit court of appeals heard oral argument in august on whether ohio has to recognize gay marriages from other states.

good afternoon. >> good afternoon. may it please the court, eric murphy for the interment intersect tor of department of health. these two ohio case kas involve state recognition of is out of state same-sex marriage and in that respect they're distinct from the michigan case that was just argued which involved in-state licensing performance of same-sex marriages. but the fundamental question in all of these cases is the same and that fundamental question is not whether ohio should recognize same-sex marriage but who should make that important decision of public policy on behalf of the state. in rejecting the ohio voters decision on this policy issue, the district court ignored its place within the judicial hierarchy and our constitutional democracy. i would like to begin with the baker point because i think it's every bit as significant on this

recognition case as it is on the michigan licensing case. in the prior discussion, the first circuit case of a.j. just versus massachusetts was discussed. in that case, i think that analysis has it exactly right where judge talked about how any right that they recognize has to be consistent with baker, which is a result that does not lead to same-sex marriage and the plaintiffs in this case have not proved really any grounds on which to distinguish the right to recognition and right to licensing. because of that, they make the same approach with respect to baker as the other -- as the other cases have done which is to say that dock ternl developments have superseded baker. now with respect -- i think i heard a question. >> that's not quite true with respect to the non-recognition part of the ohio case because didn't judge black point out that there's this wrinkle that

ohio doesn't seem to equally enforce this prohibition on out of state marriages that aren't consistent with ohio requirements for marriage licenses? >> in the equal protection context, he did suggest that this refusal to recognize out of state same-sex marriage is unprecedented. i don't think that's correct. way the courts have gone about it is to distinguish it between that they call void and voidable marriages. and there is -- void marriages are just those marriages that violate what would be deemed a common law marriage. and so, they would not be recognized whether they were recognized by another state -- >> can you say that over again. a common law marriage, out of state would be considered void in ohio? >> so, no. it depends on -- so, the way the courts undertake the choice of law analysis is to say if the out of state marriage is only voidable, then we'll recognize it here even if it is unlawful

here. that's the maz leeny case, the first cousin marriage case. but for other types of marriages, if the marriage would be deemed void, which the ohio courts would take to mean is not recognize common law essentially, then they wouldn't be recognized now. i would like the styles case, uncle niece case, that was an in-state ohio marriage granted it was a common law marriage, but the court established the rule that that was absolutely void and the court would not recognize it. and that's void versus voidable is the distinction not the same-sex marriage versus opposite sex marriage. and so i think -- so that's one example for why i think baker is all but controlling because they have to make these distinctions and other distinction they try to make is to try to say that there's a substantive due process right not to have marry, but to marriage recognition. and i think that's -- i don't even think you need to get to

the gluxburg analysis because under the supreme court's cases and this court's cases, when you have a specific provision directly on point, a specific textural source of protection, elsewhere within the constitution, you don't even get to substantive due process analysis and i think that's -- that is applicable here. the full faith and credit clause is the clause dealing with one state has to recognize another state's laws and the plaintiffs have no argument with respect to the marriage license itself, that that would violate the full faith and credit clause instead they say there's some type of substantive due right to marriage recognition. the analogy we make is to this court's brandenburg case it refused to engage in any sub tan tooif due process analysis free speech case. substantive due process is super first amendment and we're essentially making the same

point here. substantive due process is not a super full faith and credit clause. so all this goes back to the notion that all the rationals to try to distinguish baker fall flat and would lead -- >> what's your assessment of the phrase dock trial developments that judge daughtrey asked? >> base on this own court's precedence, my interpretation of that phrase is, okay, if you have a case that has all but overruled a summary dismissal but they just didn't know of the summary dismissal so they don't expressly site it because the supreme court maybe just didn't know it because it was a one-line order, that is the type of dock internal development that is necessary in order to implicate that provision. i think that's consistent with that what this court has held in the song case that's sited in our brief where the court in song essentially said that these summary dismissals and regular opinions should have the same

pres deshl value. that means that summary dismissals every bit as regular opinions trigger thing a see theny and rodriguez rule. so i don't thatting a see theny and rodriguez can suggest that that rule is only for regular decisions and not for -- >> aren't there some opinions that suggest if they don't hold that one of those summary dismissals, like this 11-word long one that we were talking about, might have some kind of binding effect on the court from which it came but not against the world? >> i don't think that's true. i think it has -- i think -- at least the distinction that wright miller draws and the distinction that the supreme court cases have drawn that the binding effect it has on the lower courts versus the binding effect it has on the supreme court. and the supreme court is quite clearly -- the statement says, it has less binding effect in

the supreme court but with respect to the lower courts i think -- >> of course that was a michigan -- i'm sorry, minnesota case, came out of the minnesota supreme court, did it not? >> that's true, your honor. >> okay. >> th mr. grun and whether he is standing, is that -- i may just be a little confused here. but you have to address standing because it's jurisdictional if without that party you wouldn't have a case. but i also thought that if you have other parties that clearly do have standing, one doesn't have to address it? do we have to address mr. grun? >> i do think you do. i think that's the rule that you're talking about only applies when they're seeking the same relief and i thought his relief is more facially -- the relief that the plaintiffs sought was just an as-applied, we want our death certificates but he wanted broader injungtsive relief. facial relief allowing him to

put on the death certificate of any future clients. i think the court in the nra case, i think it says, yes, that's the general rule but when they're not seeking identical claims, then you have to -- >> so you're saying here, one claim not involving mr. grun is just as applied to one death certificate but without mr. grun, you can't attack more broadly -- >> you know, the injunction would be more forward-looking. >> i got it. i got it. i lost the other side of that question as well. okay. >> okay. with respect to -- i'm happy to talk about the third party standing point as well now. with respect to that, i think it's pretty straight forward, i think. the easiest route there is the third party standing doctrine that there has to be a close relationship. kowaski made clear that a lawyer's future perspective relationships with clients

insufficient to establish the necessary closeness. and i think that is on all fours i think with this case. i think -- i would hope that a lawyer's relationship with a client is -- >> but those were people that are afemoral at this point, am i correct? the future clients. >> future cliebts, yes, that's correct, your honor. >> this mr. grun has current clients and he is a member of the class and his business actually is primarily dealing with the class that's at issue as the burial, fun yals and burial? >> i would think you can make the same distinction. i believe he is talking about future clients. he hasn't identified any other specific clients other than i believe obergsel.

the response to koe wall ski is to recite craig versus bourn which is the case dealing with beer venders. but koe wall ski itself distinguished craig about being where the transaction between the two parties is itself illegal. and in that case, the venders could not sell beer to minors. >> if we -- there was no impediment to reaching these issues -- essentially the same issue in the tennessee and kentucky cases, then it starts to look insignificant. do you hear what i'm saying? in other words, either by upholding or invalidating, then what do we care about mr. grun in ohio? i mean, you would have a decision -- a ruled decision that would be binding in the sixth circuit and barring a meaningful distinction between the different state non-recognition laws wouldn't make a difference, would it? >> so there's a difference between a matter of precedent and matter of relief.

the state would either depend on what the opinion would say, but either it have to attempt to distinguish the opinion or be bound by it. >> right. >> i don't know that that -- i think that standing still has to be within respect to these cases. so that's -- i think that's the easiest way out with respect to the third party standing. then the other factor for third party standing not only closeness is hindrance. and i mean, these suits are all over the country right now. so there's not too much of a hin drens to the gay and lesbian community asserting their own rights. so -- >> if you get beyond baker, you get the sense from meeting these other sort of appeals decisions that they're measuring a trajectory. it does seem fair to say that the supreme court opinion trajectory favors the plaintiffs even if it is also equally fair

to say that those cases don't necessarily answer the question here but the trajectory does favor them. you know, it just does. from lawrence to windsor, it's true. they've not said anything about baker. it's true they didn't reach today's issue in holingsworth. but what's a lower court to do with that beyond baker? >> setting aside baker, i think that those -- i think those roamer and windsor at least are just garden variety applications of the anmus case and i think judge holmes concurrence in the bishop case was a pretty good analysis as to why this type of anmus doctrine can't apply here. and that's simply because in windsor it was unusual federal intrusion in to what had always been a state matter. and in roamer, it was an

unusual, expansive elimination of one class of people's rights. and that just cannot -- that just cannot explain the traditional definition of marriage which has existed since the founding of the state and can't really explain either, i don't think, the 2004 amendments because i think the 2004 amendments were explained primarily by democracy. and the citizens and the general assembly worrying that this fundamental question of public policy would be taken by -- taken from them either by massachusetts court or by the ohio supreme court. and it's a rational response to that concern to pass a constitutional amendment retaining the traditional definition of marriage. so, i think judge holmes had it

exactly right in bishop by suggesting that in both of those cases what they're really looking at is facially unprecedented laws. and when there's facially unprecedented laws, they raise the judicial eyebrow so to speak to apply this type of anmouse doctrine. i don't think that concern is present with respect to the laws that have existed. there's nothing unusual about following the usual course i would say. so i think those cases are distinguishable on that ground. and with respect to rational basis, we talked about democracy. i think a distinct rational basis in the recognition cases is just uniformity and having one position on this fundamental issue such that the laws cannot be easy evaded. and so that uniformity rational also explains --

>> what imply mentation problems arise if the plaintiffs win? >> i certainly think that it would require -- i don't know if it's an implementation problem, it would certainly require a legislative response, for instance, birth certificates have father and mother. maybe it should be changed to parent one and parent two. this is just a pragmatic response. >> it's a pragmatic question. >> i would imagine those things would happen throughout the ohio revised code where there's references to husbands and wives. so i certainly do think that the general assembly would have to do a pretty thorough read of the oh ohio revised code to determine what needs to be updated in light of whatever constitutional developments arise. >> but other statutes about divorce, adultery, all that, all i'm hearing you say, yeah, you just have to use spouse --

>> spouse or parent. >> that's all that would have to change, nothing else. >> the tax code as well. yeah. i mean, the pragmatic question, you know, frankly, you know, i didn't anticipate the question so i didn't review the revised code. >> you didn't bring it with you? >> maybe i should have. but, yeah, i do think there's no doubt that it would require a new law being passed. >> or forms being reprinted perhaps. >> yeah. >> so what are the -- >> so in addition to the ones already mentioned by michigan, i think the two concrete ones with respect to out of state recognition, democracy is number one and concerns about massachusetts controlling ohioans on this issue, uniformity, i just think

proceeding with caution it strikes me as a rational response to a new concept. >> so if we accept that which is a variation on the pacing point, maybe that's a rational basis, i'm not sure. but let's accept for the sake of argument that it is, it surely can't last forever. so how does the court implement that? you say now they get the benefit of the doubt and you look at it in ten years? how does that work? >> the cautious approach, the court implements that in the eighth amendment the evolving standards they look to how society has changed over the years and they count up the states. i think you look to all the factors. >> so that's -- the way to handle the pacing point and show it doesn't go forever is you hit some trigger, some number of states that recognize same-sex marriage and at that point the appropriate -- >> well, i certainly think that's one response. i think the basic point is that

it's just too new today. the law is always about drawing lines. at one point maybe it becomes an ir rational idea to proceed with caution. i don't think we're there yet. >> i don't know how many states there are in the tenth circuit, but they came in utah and they've added oklahoma. i don't know how many more states there are in there, but if there are three or four, you now got, what, 25 states by your reconning, which is a majority and we throw in four more and then you got almost 30. i'm just -- i mean, hypothetically. >> i do think -- >> it is hypothetical. >> i do think that it just -- the concept itself is too new. i do think they're looking at -- >> well, the fourth circuit just

came down with an opinion that affected virginia. wouldn't your guess be that that's now going to apply to north carolina, south carolina and who else is in there, west virginia? >> uh-huh. >> yeah. that's true. but i think there's a difference between saying if whether it's irrational -- i don't think you can pick the states where the courts have gotten involved rather than through -- >> you just told me i should count the states. i'm telling you i'm counting the states. >> the way to count the states i think is through the states that have the democratic processes have adopted that type of change and ip think that -- if you take that number, i think it's -- >> but we've now got 20-something states that see no reason to fuss about this in the legislation because the courts already decided the question. that of course assumes the supreme court is not going to knock it sideways. but, you know, they can count, too. and it is my feeling that they probably do look at the polls. >> maybe the counting point that

is somewhere between the two of you is you don't necessarily have to count all the states within a circuit that's ruled one way, particularly if there's going to be abappeal, because that doesn't tell you the bottom line. but you do count the states covered by these circuits where the state attorney general or state governor has decided not appeal because in those states it's over as best i can tell. so maybe that's the relevant number and that's the number around 20, 21, i think. >> i still think it's still too -- the fact of the majority is the the states have retained the definition of marriage. the cautious approach makes sense. justice alito's decent goes through this quite well. talks about how changes to the way marriages -- changes to changes in marriage have taken decades to determine whether they be -- the effects of the change. and i think it's just too early to tell when the first state to recognize marriage was in 2004.

>> so what do you think is keeping the opinion in windsor it would have looked like if alito had been in majority and written the opinion? >> what do you think it would have looked like? >> what would he have said? >> well, he makes the distinction that he doesn't think that the federal governments decision with respect to section 3 was face basted on an mouse, so i think he would have distinguished rumor on that ground. but i do think that this is a different question. i think the main focus on windsor was the unusual nature of the federal inintrusion into marriage and that's simply not the case with respect to the state of ohio retaining its traditional definition of marriage. >> think about the methods by which states -- if we are interested in the federal, when we think about the methods by which states adapt to changingmore rays, we're not

speaking so much about the more local aspects that people elect folks to the general assembly in ohio or whatever legislative body whom they have asked what their views are and use of democratic process to try to move things along locally and then statewide. i don't think we're talking about that so much when we're counting states or the impediments to getting change, the pacing speed it up. >> yeah. i just think that this is -- a cautious approach to a fundamental change in marriage when it's only been ten years. it strikes me as completely rational and any voter in ohio might have had that very rational in 2004 when they voted for this law. >> what would you say if a former titan scrutiny applied? you have to concede it's a much harder case. would you concede you would lose

or what's your take on the case? >> i think michigan's response was interesting with respect to the gender discrimination. another response is change -- uncertainty -- uncertain facts does not inevitably mean that the state if it is heightened scrutiny loses. i would point to gonzalez versus carhart. the undue burden standard and the court said we have these facts. we don't know whether the health exception is necessary or not and we're going to defer to the legislative branchs on that fact. i think the same analysis could be undertaken here. i also point to -- the town of greece case that was just decided the last term where the court expressly indicated that the test that you adopt also has to be consistent with the history and practices of the people and so i think that if

you think that heightened scrutiny versus rational basis review actually makes the difference, i think the town of greece is a good indication that rational basis review the appropriate test precisely because the traditional definition of marng has been with this country since its founding. so with the last minute, just briefly talk about the full faith and credit clause claim which is the last claim in the henry case and i think the basic analogy there is full faith and credit clause claims are not cognizable under section 1983 because the clause is just like the supremacy clause, it's a choice of law rule that says when a state has a claim that you should look to the state of judgment preclusion law rather than the law of state where the suit is filed. so essentially a choice of law rule in the same way that the supremacy clause is a choice of law rule. if there's no question -- >> there is a question, mr. murphy.

do you have any knowledge of how -- how many years it was from the start of the campaign until the 19th amendment when women achieved the right to vote? are you familiar? >> i'm not, you knr honor, i'm sorry. >> if i told you it took 78 years of crossing the desert back and forth, back and forth, trying to achieve it through the democratic process, would you be surprised? >> not with respect to the united states constitution because the united states constitution sets a very high bar for constitutional amendment. >> no, no, no. no, no. i'm talking about the going into every state in the country, every city, every school board election for 78 years and trying to get enough going to convince the legislatures to adopt or extend the vote to women, 78 years of it.

and would you be surprised to find out it didn't work? and it took an amendment to the constitution to finally achieve that after 78 years? >> yes. there's no question that the u.s. constitution is very difficult -- >> no, no, no. that's not the question. excuse me. you're not getting the point. the point is you want to do this democratically state by state, legislature by legislature, municipal government by municipal government as far as i know. and it just doesn't always work. >> well, that's the way -- >> 78 years to get the women to go to the polls and vote. you don't have to respond. that's all. >> okay. >> i just thought you would like to know that in case you're ever on jeopardy. [ laughter ]. >> well, you can respond now or you have five minutes for rebuttal to think about that. [ laughter ]. >> and train for jeopardy. okay, mr. gerhardstein?

>> thank you. i'm going to go this way. may it please the court. al gerhardstein. three babies have been born to the henry plaintiffs in the last two months, one adoption has been finalized a few months earlier for another plaintiff couple in henry. all four are same sex couples all were married in one of those 20 to 21 states where the issue is done. they're married for same sex couples is available. sohio refuses to recognize these marriages and in so doing also refuses to these couples and to their children recognition of parentage. so, instead, ohio issues a birth certificate that names only one member of each couple the parent and denies recognition as a parent to the other. that's a real serious harm.

ohio also says to the surviving spouses in obergefell, you have to accept the death certificate for your loved one that is wrong. one that says you are not married even though you are and one that leaves blank the spot where your name should go as a surviving spouse. sohio -- and this is such a big difference the ohio/michigan cases. i totally support and agree with the arguments in terms of the fundamental right to marry. but at this point we're just doing a recognition case. and the ohio marriage -- >> can i ask you a framing question? >> sure. >> i'm fearful is a little simplistic, but i would love to hear your reaction to it. because we do have all these cases and we have all these issues, my rather simplistic way of looking at it is, isn't the first question whether a state can decide for its own purposes, its own citizens, whether to recognize same-sex marriage?

and if it decides it's not going to do that for now and if the u.s. constitution -- here is the key if, if the u.s. constitution permits that choice, i guess it seems really odd to me that they can be told, okay, even though you can make that choice for your own citizen, if someone comes from another state, that public policy choice doesn't bind you. so i guess i just think of the case and vice versa if you win that issue, if the state of ohio under the 14th amendment must recognize same-sex marriages within its state, then, of course, it follows you win the recognition point. >> okay. let's look at our decision grid. all right? and because you're suggesting that the question of states defining marriages is a threshold question for all of us. >> well, it's one way to think about it and maybe it's too simplistic. >> well, it's one way to do it. but when we look at the question of marriage recognition, you've

got your question over here. what is the state's definition of how -- what kind of access will they provide to marriage? and that can be a fundamental right to marriage under turner, under loving, you know, saying that, you know, that it's a bilateral association, it's a fundamental right therefore same sex couples get to marry. a number of other states and courts have ruled that way. if that is the situation, it's simple. then, you have a -- also under due process, the notion that once you're married, that attaches all kinds of vested rights. you have important parenting rights. you have important child rearing rights that have been recognized by the supreme court. and for history, that's been transportable across state lines. so, that's a separate argument of the due process clause that there is a fundamental right to

marriage recognition that it's transportable. and then, you have another line which is windsor. which is equal protection. and that says if you've got a really unusual situation like section 3 where where for history, the federal government has always accepted the states that say, this is a marriage and the federal government says, okay we'll accept it as a marriage. and same-sex marriage couples are getting married, nope, we'll get into the business of defining marriage, that's an unusual discrimination. it requires a special consideration. and when the court applied that test, not trying to label on it, but certainly working within equal protection, it said that that type of discrimination is a violation of equal protection that it is a principle purpose to impose inequality. so it wasn't about whether a

certain state must or must not define marriage. it was about if you've got a pattern and practice over time that you're only changing because of the type of people that now participate in marriage or -- >> or the government that's doing it? >> well, justice kennedy in his decision clearly said that he was not doing this on a federalism basis, that he was -- and the majority ruling should be looked at as an equal protection clause. this case directly fits windsor. it was the first case filed after windsor. we looked at the record in windsor. we went out and hired all the same experts. you have the same record as you had in windsor and you have the same problem because ohio did have a long tradition and it still does of being on the extreme side of the state of celebration rule. so, if you have always accepted

first cousin marriages, underage marriages and common law marriages, that you can't do in ohio and now suddenly because of the people in these 20 states that are getting married, you say, oh, no, no, we're going to change the rules. that raises the bar. >> what is it, maz leeny the ohio supreme court decision? >> that is one of the cases. >> that's the first-cousin decision. >> that's right. >> the language of the decision, doesn't it indicate, well, yes, no the state doesn't have to recognize every marriage in every other state. it's pretty clear. >> but if you go to our brief and look at all the sources that we site including sources that go way back, we can't find another case where ohio is refusing to recognize marriages from other states that, you know, otherwise couldn't be practiced in ohio. so, we really have -- >> there's only three cases. >> well, there's not a lot of case law but they couldn't find

any other. the only case they sited was an in-state case. so we have a rule of law and it is one that ohio has followed. and then you have the added dimensions -- because when you look at windsor and you say, well, what was that special consideration that they entered into? and how does that apply to ohio? you can look to some other rational basis cases because what we're really learning is that rational basis doesn't have just one flavor. i mean, if you've got a group that's targeted because of a history of discrimination, if you've got important, personal interest at stake as in palmore or in gris wald. if you've got a departure from an established past practice like roamer, then those are all factors that if we look at the case law seem to suggest that

we're going to look at things a little more closely. >> how do they apply here? you can't say this is unprecedented, right? because this is the definition that has existed since -- >> no. i'm not talking about the definition. i'm on my third prong. it is unprecedented that ohio would unilaterally say we're not going to accept you as people that we will recognize as people who are married here. >> how would you say it's unprecedented the ohio supreme court and it's the key decision you're relying on says, no, this doesn't mean you have to recognize every marriage even if it's against the state's public policy? >> because>> because ohio -- be was theoretical. they were leaving open the back door. but when we look at the real situation here, this back door involves people who have a history of discrimination, people and an issue that's very personal and carries with it very important rights and it is

a departure from -- >> i agree there's a history of discrimination. i don't think there's any doubt about that. i guess what i'm -- is not so obvious to me is a history of discrimination when it comes to access to marriage. that seems to me a much more recent phenomenon and just a reflection of the current times and a new sensitivity on both sides of the debate. >> well, what we really find is that if you look at how windsor -- a majority analyzed this, they looked at the history in order to determine whether this departure is significant enough to trigger a protection clause. they said it was. it was the essence of the statute. and that it humiliated tens of thousands of children. it said in the federal context that there was no legitimate purpose served in such a

statute. that all applies here. there's no legitimate purpose for ohio to say -- >> in one setting the federal government is doing something it's never done before and worst of all doing it after a state has already decided to recognize same-sex marriage. in today's cases, it's a situation where the state -- each state has always been in charge of this issue. that just seems like pretty serious difference. >> well, they've been in charge of the definition. this is a rule that they have followed, the celebration rule. it was a theoretical discussion as to what they wouldn't follow. the deal that these couples made when they got married in new york, california, massachusetts, maryland and delaware, was that think would have a marriage that they could carry from pennsylvania, which now -- >> should we add into the logic of this that they were well

aware that they were moving to a state where same-sex marriage was not recognized? >> your honor, we're in a situation where the democratic process has evolved. okay? >> but i think that it goes to the thinking that you proposed. >> right. but there's not like a contributory negligence defense to a constitutional right. i mean, either your marriage is transportable or it's not. they got married because they were in love. they didn't get married trying to think of, well, where can i go here and where can i go there? they do expect that their marriage will be transportable. that's a reasonable expectation. in fact, 44% of the people in this country now live in a state where marriage is -- same-sex marriage is available or the freedom to marry has been recognized. and that includes those 20 to 21 states where the deal is done, where there's no more appeals pending and so on.

>> that can go both ways, wouldn't you agree? >> no. because we're now at the point where if we're -- and this is why the recognition case is so significant. because at some point when the democratic process is played out and you are at this scale of -- that we have here nearly half the country is in a situation where they're being told you can't carry your marriage across the state line, that's the point where if ever there was one the constitution requirement of -- >> the reason i think it cuts both ways is on the one hand it helps you in a sense you get -- maybe you're getting some tipping point where it's just out liar states and the courts step in. on the other hand, it suggests the democratic process is working and indeed working effectively and very quickly from your client's perspective. that's what i mean when i say -- >> it's been 27 years since powers. so it's been a long process of

development. but, you know, judge, what i'm suggesting is that the ultimate role of the federal court is to keep states from denying the liberty to certain citizens and here when you've got citizens who have a liberty interest, their marriage already exists, their marriage is done and they've now got children and those children deserve to have two parents and the state is now saying because of our commitment to democracy, we're just going to say no to you and we're just going to wait for you to come up with $7 million and reverse our constitutional amendment. and, you know, we'll see you in a few years when you can pull off that kind of fund raising and that kind of democratic action. the reality is that these rights are very, very profound. and we know from supreme court

case law that a marriage is a very significant thing. it's sol lom, it's precious, it's got all these attributes that allow you to have the relationship with your children or with your spouse. and this can't be just subject to vote. i understand that in this early stages when a state is trying to figure out whether recognition -- >> maybe it shouldn't be subject to vote. i'm just curious why you're so sure about the better path? in other words, let's say that the gay community gets to pick the path. you can get your supreme court decision in june of next year or you can have five years to change hearts and minds through democracy in the remaining 29 states? it's not obvious to me what's the best path. >> well, i'm trying to suggest a constitutional path both under due process and the vested rights that come with the marriage -- >> i get it. the assumption of the question is that you can have either one. that's the assumption of the question. itot