have among them, out of all 2.7 million, a single rational basis and it's just not possible to >> 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 ten years ago? >> it was 2004, your honor. that's why people may change their mind in the future that it's unconstitutional.

>> may it please the court. for 50 years the supreme court has recognize that the freedom of personal choice in matters of marriage and family life are libertied protected by due process. april and jane have a constitutional right to share a life, to marry, to form a family, to raise their children. we show in this case that no matter what standard of scrutiny the court uses, no matter what doctrine the court applies, 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 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 and it's just a matter of hierarchy, aren't we stuck with baker? >> when you said doctrinal development, is it fair to paraphrase that to mean reasoning that's instent wither 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.

>> 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.

>> 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 explained that lower courts can be informed directly by an outright reveersal of an earlier decision or they can be informed indirectly by doctrinal developments. we would say here the doctrinal developments are the way this court is informed and therefore

this court can make the call, this court can make the call despite baker. every court in the country has ruled this way on baker. >> i wasn't sure on the 1st and 2nd circuit before windsor. >> windsor at least is a recognition same-sex marriage case. >> lawrence and roemer 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 6th circuit's view? >> didn't alter the 2nd circuit's review before wind son. one of those cases was windsor itself. >> i understand that, the court in perry -- let me do it this way. the supreme court had that 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 hollingsworth. they decide there had was a jurisdictional impredmeediment getting to the jurisdiction in today's case. >> i understand that. in this case this court can reach it because there's been doctrinal development. we are not asking to redefine the marital relationship. we are asking for an end to the exclusion of same-sex couples the right to marry. due process focuses on the

attributes of the right itself -- >> when you're talking about getting that right, that's what your clients want, state licensing. >> yes. >> state license for their relationships. >> 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 at a broader level of generality. >> 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 seek 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 same-sex couple and marriage by an interracial couple. no, they didn't decide the case but at the cited is, so the think the trend is in that direction. >> trend lines are different from saying what loving stands for. isn't my question about what happened in 1968 pretty obvious because of 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 lawrence and you see it in winds windsor. the court is saying that, back, decades ago, certain practices

were accepted. and now we understand more about these things and we now understand that these are now going to be framed as discriminatory. we didn't know anything about same-sex couples back at the time of loving. we didn't know anything about -- and they were hiding. they were hiding because their conduct was criminalized. so i think, you know, to say 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 i think 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. if respect and dignity are critical or the key elements here, i mean its he'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 infer 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 -- if 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 general election for -- it's very cost prohibitive for a disfavored minority to be doing that. >> the role is to change hearts and minds whichvy to believe is one of the key goals. isn't it worth the expense? and don't you think you're more likely to change hearts and minds through the democratic process than you are with a decision by five justices of the u.s. supreme court? >> fundamental constitutional rights may not be submitted to popular vote. they depend on the outcome of whole elections. >> my question is not assuming you -- my question is assuming you can win. my question is why do you round

this route? it is not 100% obvious to me why it is the better route. it may be the better route for your clients and as a lawyer you have to keep the focus on that. but it's not 100% obvious to me it is the better route for the gay rights community. that's not obvious to me. >> i'm not at all optimistic we could get that in michigan. but secondly, the government had made that same argument. just wait for the passage of e.r.a. that was in 1973. we would still be waiting now. there's injury, the ban brings gentlemen 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.

i think that's something all parties agree during this trial. april is a legal stranger to her son and jane is a legal stranger to her own daughter. the ban also brings the loss of important economic resources. we've listed all those. ban brings psychological injury. we had the doctor explain that no matter how competent, how xwoeted, how caring that second parent is from the child's perspective, some children are suffer from an ambiguous socially unrecognized seemingly non-permanent relationship with a second parent. the supreme court added -- these bans humiliate families, they deval same-sex couple -- the ban brings shame to these children. an injury is especially unjust, especially cruel for our plaintiffs. a nik u. nurse.

special needs children. hard to place children. children of color. 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. that connection is missing here. 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 under inclusive, that's what the court means when it means improper 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 basis review works. >> in a series of cases, the court struck down laws outlining what the court calls invidious under inclusion, cases striking down laws that are "riddled with exceptions." striking down laws under that miss feith classification. >> those are unprecedented laws. windsor and roemer were unprecedented laws. if there's one thing we know in this case, this definition for better or worse is not precedented.

>> 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 unprecedented in the since of never allowing same-sex couples before, whether it's -- whether or not it fits the roemer/windsor characterization. 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 approach, it matters that these are intensely personal rights as opposed to economic interests. it matters that this was a constitutional amendment and i'll distinguish that in a moment. >> one of those is an age discrimination case. it is a very personal right. it's saying police officers have to retire at age 50 and that

they're either is a correlation between age and physical fitness. of course that's a ridiculous law in terms of over or under inclusiveness because you have 50 year-olds doing 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 not a toothless one. in jimenez case, social security to some illegitimate children, not others. contraceptives to married but not unmarried persons, courts call that in rational basis review, invidious under inclusion. in moreno, only hippies were denied food stamps. all of those were rational basis cases. state talks about the roberson case saying that the state only needs to show that the inclusion of the included group furts the

legitimate interest of the state but the state is misreading that case. the court found that the line drawn there, rationally distinguished between the two groups, that there was good reasons why conscientious objectors could be denied veterans's benefits. the court ruled that the groups were not similarly situated in respect to those benefits. in cleburne the law failed rational basis because "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. michigan has a robust policy of adoption. it allows single gay and lesbian people to adopt. in michigan, adoptive parents have the same legal rights as biologic parents. ties.

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 forcible sterilization. again, not a marriage case at all. >> what about the problem with unintended pregnancies? >> with unintended pregnancies, there's another disconnect. again, it's the same problem, with procreation, the ban doesn't do anything to

disincentivize heterosexual couples from marrying. marriage gives them that already. so the ban doesn't do anything to take it away. so this idea of accidental pro creation is really a non-rationale because there is a disconnect there between the purported purpose and the classification or the law that is 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 persons within marriages do in fact pro create, courts cannot require pro creation as a precondition to a constitutional right. the state is now arguing that the facts will matter. this is a different argument than we faced if the district court. that the voters must have believed that the mother-father families are preferable. that claim is based upon the irrational speculation, it's

based upon disproven irrational speculation. the social science consensus answer. that's not what matters. parents are important as people. two parents bring double the resources. the parent-child relationship matters most. the relationship between two parents matters, and please note it's in the district court, the state fully engaged in this trial process. they offered expert trial testimony on the mother-father rationale on the biological tie rationale. they don't even summarize those witnesses before this court. >> can i ask you a question about pacing, which seals to me to be at the heart of this. at least one way of looking at it. i saw statistic in one 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 gay. and when you see that statistic, you realize social science statistics have nothing to do with this. all of this change is the result

of the concrete trumping the i abstract. people knowing gay people, knowing they can 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 21 states including the district of columbia, in one way or another now recognizing gay marriages. recognizing gay marriage. and we have a lot of other states that i suspect are prett 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 to 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 friedman found that the constitution is for the here and 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 doctrinal change. if the court was intending on telegraphing, it worked. 20 straight decisions where bans 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 that you have are outliers. 5 or 10 outlier states and 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 nascent. 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 and large universities have stopped funding on 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 under inclusion problem with the state's child outcome rationales. 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, have

children, get divorced, and 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. but marriage is a civil institution. judgment for the plaintiffs will not require any change for religious institutions. they would be free to practice their sacraments, 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 clergy will be required to solemnize a marriage in contravention 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, marbury versus madison requires the court to do this.

you would look at the hierarchy of 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 quasi suspect class status. we renew that argument here and defer to our brief and wonderful brief of the constitutional law professors that intermediate 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 an en banc decision. 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 cleburne. the court has an obligation or did and does now to apply the

cleburne factors and the court clearly did not apply the cleburne factors. davis and scarbrough 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 honor. 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. the people confer that dignity by voting for it so the right process, if there's going to be change in this area, is not through the courts but through the people. for example, in maine, maine went one way in 2009 where the legislature passed a law recognizing same-sex marriage. people reversed course. >> can i ask mr. lindstrom do you have any idea how long it would have taken in the south if the supreme court hadn't come with loving versus virginia and what a shock that was down there? >> well, loving, again, violated the equal protection clause itself because it violated -- imposed invidious racial discrimination. the loving case talks about the

fact of that statute -- >> all right. well, you told me that before. there 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'connor's concurrence which was applying the same analysis to marriage, there is 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 dissents

in windsor. but it recognizes that the victory that is earned through political process is a truer victory and for courts to decide it deprives people of an honest victory and honest defeat in a 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 6th 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 6th 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 interim director of the ohio department of health. these two ohio cases involve state recognition of out-of-state same-sex marriage and in that respect they're distinct from the michigan case that was just argued which involves in-state licensing or 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 1st circuit case in 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 proffered really any grounds on which to distinguish the right to recognition from the 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 doctrinal 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. i think the way the courts have gone about it is to distinguish it between what they call void and voidable marriages. and there is -- void marriages are just those marriages that violate what would be deemed a common law marriages so they would not be recognized. >> 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 mazzolini 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. like the stiles case, 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 in the recognize it and that 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 glucksberg 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 process right to marriage recognition.

the analogy we make is to this court's brandenburg case it refused to engage in any substantive due process analysis with respect to free speech case essentially saying substantive due process is a super first amendment and we're essentially making that same point here. substantive due process is not a super full faith in credit clause. so all this goes back to the notion that all the rationales to try to distinguish baker fall flat and would lead -- >> what's your assessment of the phrase doctrinal developments? >> my interpretation of that phrase, if you have a case that's all but overruled a summary dismissal, they don't know of the summary dismissal. they don't expressly cite it

because the supreme court maybe just didn't know it because it was a one-line order. that is the type of doctrinal development that is necessary if order to implicate that provision. i think that's consistent with that what this court has held in the song case that's cited in our brief where the court in song essentially said that these summary dismissals and regular opinions should have the same presidential value. that means that summary dismissals every bit as regular opinions trigger the agostini and rodriguez rule. >> aren't there some opinions that suggest, if if they don't hold, that one of those summary dismissals, like this 11-word long one that we're 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. >> 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 injunctive 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. kowalski 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 ephemeral at this point, am i correct? the future clients. >> future clients, 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, funerals 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 kowalski is to recite craig versus bourn which is the case dealing with beer venders. but kowalski 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 6th circuit and barring a meaningful distinction between the different state non-recognition 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 with 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 hindrance to the gay and lesbian community asserting their own rights. so -- >> if you get beyond baker, you get the sense from meeting these

other district court decisions and court 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 compel an answer here, don't necessarily answer the question here, but the trajectory does favor them. you know, it just does. from roemer to lawrence to winds windsor, it's true. they've not said anything about baker. it's true they didn't reach today's issue in hollingsworth. but what's a lower court to do with that beyond baker? >> setting aside baker, i think that those -- i think those roemer and windsor at least are just garden variety applications of the animus case and i think judges holmes' concurrence in the bishop case was a pretty

good analysis as to why this type of animus 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 roemer, 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 animus 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 -- evaded. that uniform rational explains the -- >> what im -- what implementation problems a rise if the plaintiffs win? >> i certainly think it would require a -- i don't know if it's an implementation problem. maybe it should be changed to parent one and parent two. this is a pragmatic response. >> this is a pragmatic questioniquestion. >> i imagine that would happen throughout the code where there's husbands and wives. i think the general assembly

would have to do a thorough read of the ohio code of what needs to be updated in light of constitutional developments a rise. >> statutes about divorce, adultery, all that. all i'm hearing you say is yeah the spouse. that's all that would change. >> the tax code as well. the pragmatic question -- i didn't review the revised code and all weather. >> you want know explain it with you? >> maybe i should have. i do think there's no doubt it would require new laws being passed. >> or forms being reprinted perhaps. >> yeah. >> what are the -- >> in addition to the ones

already mentioned, i think the two concrete ones with respect to out of state recognition, democracy is number one. concerns about massachusetts controlling ohio on this issue, uniformity. i think proceeding with caution strikes me as a rational response to a new concept is. >> to september that in what you said a variation on the pacing point. maybe that's a rational basis. i'm not sure. let's accept for the sake of argument it is. it surely can't last forever. how does the court implement that? you say now they get the benefit of the doubt and you relist in ten years or how does that work? >> the cautious approach, the court in the eighth amendment for instance other involving standards. they look at how society has changed over the years. they count up the states.

>> so the way to hand it will pacing point and show it doesn't go forever, you hit some trigger, some number of states that recognize same sex marriage. at that point -- >> i certainly think that's one response. i think the basic point is that it's too new today. maybe -- i i mean -- the law is always about drawing lines. at one point maybe it becomes irrational idea to proceed with caution. i don't think we're there yet. >> i don't know how states there are in the tenth circuit, but they came in with utah and they've added oklahoma. i don't know how many more states there are in there. if there are three or four, you've now got what 25 states by your recommending which is a majority. you throw in four more. then you've got almost 30. i mean, hypothetically.

it is hypothetical. >> i do think that the concept except is too new. >> the circuit just came down with an opinion that affected virginia. wouldn't your guess be that's now going to apply in north carolina, south carolina and who else, west virginia? >> that's true. i think there's a difference between -- whether it's irrational -- i don't think you can pick the states where the courts have gotten involved rather through democratic -- >> you told me i shouldn't count the states. i'm telling you i'm counting. >> the way to count the states are through the democratic processes that have adopt had the type of change. if you take that number, i think it's -- >> but we've now got 20 something states and see no

reason to fuss about this in the legislator. the courts have already decided to question. that of course assumes the supreme court is not going to knock it sideways. you know, they can count too. 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 count all states within the circuit ruled one way particularly if there's an appeal. that's the pay the bottom line. you doesn't the states covered by circuits where the state attorney general or state governor decided not to appeal. in those state as, it's over. best i can tell. that's the relevant number. that's the number around 20-21 i think. >> i still think -- the fact of the matter is the majority of states have retained the general approach of marriage. just as a leader of decent goes through this quite well.

he talks about how changes to the way marriages -- changes in marriage have taken decades to determine with whether the effects of the change -- i think it's just too early to tell when the first states are recognize marriage was in 2004. >> what do you think is riding the opinion in windsor would have looked like if aleto hadma opinion? >> what do i think it would have looked like? >> uh-huh. >> he doesn't think section 3 is based on -- i think he would have distinguished rumor on that ground. i do think this is a different question. i think the main focus on windsor was the unusual nature of the federal intrusion into marriage. that's simply not the case with respect to state of ohio retaining traditional definition

of marriage. >> when we speak methods by which -- if we're thinking about the message by which state adapt to changing, we're not i don't think speaking so much about the more local aspects that people elect folks to the general assembly in ohio or legislative body whom they have asked what their views are and used the democratic process to move things along locally and statewide. i don't think we're talking about that so much when counting states or the impediments to getting change to speed it up. >> yeah i just think it's a cautious approach to fundamental change to marriage when its been

ten years. it strikes me as irrational. any voter in ohio may have had that in 2004 when they voted for this law. >> what do you say about the former scrutiny applied. it's a harder case. would you concede you lose or what's your take on the case? >> the michigan response was interesting with respect to the gender discrimination. another response is change -- uncertain facts does not inevitably mean it loses. there's uncertain facts there under what is a higher standard in the court said we have these facts. we don't know whether the health exception is necessary or not. we're going to defer to legislative branches on that fact. i think the same analysis could be undertaken here.

i also think the town of greece hates -- that was decided last term where the court indicated the test that you adopt also has to be consistent with the history and practices of the people. i think that if you think that heightened scrutiny versus rational basis review actually makes the difference, the town of greece is a good indication that rational basis should review the appropriate test precisely because the traditional definition has been with this country since the founding. with last minute, i briefly talk about the last claim in the henry case. i think that the basic analogy there is full faith in credit claims are not recognizable under section 1983. the clause is just like the supremacy clause, choice of law rule that says when a state has

a claim that should look to state judgment law. if there's no questions on that -- >> there is a question. do you have any knowledge of 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 sure. >> 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 the suspect to the united states constitution. the united states constitution sets a high bar for constitutional amendment. >> 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 did legislators to adopt or to extend the vote to women. 78 years of it. would you be surprised to find out it didn't work and took an amendment to the constitution to finally a chief that after 78 years? >> there's no question that the u.s. constitution is very different. >> no, no. that's not the question. the point is you want to do this democratically state by state, legislator by legislator, municipal government by municipal government as far as i know. it doesn't always work. >> well that's -- it doesn't work. >> 78 years to get women the right to go to the poll and vote. that's okay. you don't have to respond.

i just thought you'd like to know that in case you're ever on jeopardy. >> well, you can respond now. you have five minutes rebuttal to think about that. and train for jeopardy. okay. >> thank you. may it please the court, for the obergefell and henry. three babies have been born to henry plaintiffs in last two months. one adoption has been finalized for another couple henry. all same sex couples all married in one of the 20 to 21 state says where the issue is done. they're married for same sex couples is available. ohio refuses to recognize these marriages and in so doing also refuses to these couples and to

their children recognition of parenting. instead, ohio issues a birth certificate that names one member of each couple the parent and denies recognition as a parent to the other. that's a real serious problem. ohio also says to surviving spouses in obergerfell you must accept a death certificate that's wrong. one that does not say you are married even though you are and one that leaves blank the spot where your name should go as surviving spouse. so ohio -- this is a big difference from the ohio michigan cases. i totally support and agree the arguments in terms of the fun fundamental rights. this is a recognition case. >> can i assess a framing case? i'd love to hear your reaction

to it. we do have all these cases and 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, own citizens whether to recognize same sex marriage? if it decides it's not going to do that for now and if the u.s. constitution permits that choice, i guess it seems odd to me that they can be told -- even though you make that choice for your own citizens, coming from another state, that public policy choice doesn't bind you. 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. you're suggesting that the question of states defining marriages is a threshold for all of us. >> it's one way to think about it. maybe it's too simplistic. >> it's one way to do it. 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. that can be a fundamental rights to marriage under turner saying that it's a bilateral association, a fundamental right therefore same sex couples get to marry. a number of states have already done that, number of courts have ruled that way. if that's the situation, our case is 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 are recognized by the supreme court. for history that's transportable across state lines. that's a separate argument of the due process clause that there's a fundamental right to marriage recognition that it's trans portable. then you have another line which is windsor and equal protection. that says if you've got an unusual situation like section three where for history the federal governments always accepted the states that say this is a marriage and the government says okay, we'll accept it as a marriage. same sex couples are getting married. federal government says we're now going to get into the business of defining marriage. that's an unusual discrimination and requires a special consideration. when the court applied that

test, not putting a duck tape label on it but working with equal protection, it said that type of discrimination is violation of equal protection. it is a principle purpose to impose inequality. 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 the government doing it. >> well, justice kennedy and his decision clearly said he was not doing this on a federalism basis. that he was and majority ruling should be looked at as equal protection clause. this case directly fits windsor. it was the first case filed after windsor. we looked at record in windsor. we hired the same experts.

you have the same record in windsor and have the same problem. ohio did have a long tradition and 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. thousand suddenly because of people in 20 states that are getting married you say no, no we're going to change the rules. that raises the bar. >> is it ohio supreme court decision? that's a first cousin decision. isn't it the language of the decision is that indicates yes, the state doesn't have to recognize every marriage in every other state. it's pretty clear. >> if you go and look at all sources that we cite 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 three cases. >> there's not a lot of case law. they couldn't find any either. the only case they stated was in state case. we have a rule of law that ohio has followed. then you have the added dimensions. when you look at windsor and say, what was that special consideration that they entered into and how does that apply to ohio, you can look to other rational basis cases because what we're really learning is that rational bay since doesn't have one flavor. 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 griswald where personal autonomy issues are triggered. if you've got departure from established past practice, those are all factors that if we look at the case law seem to suggest we're going to look at things more closely. >> how do they apply here? can't say this is unprecedented right? this is the definition that existed -- >> i'm not talking about the definition. i'm on my i third prong. it's unprecedent had the ohio would say to a whole group of people who are married in another state, we're not going to accept you as people that we will recognize as married here. >> it's unprecedented if the ohio supreme court itself and key decision joyou're relying o. it says no, it doesn't have to recognize every marriage.

>> because it was theoretical. when we look at the real situation here, this back door involves people who have a history of discrimination. people in the issue that's very personal and carries with it very important rights and it is a departure. >> i agree there's a history of discrimination. i don't think there's any doubt about that. i guess what is not so obvious to me is 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 a new sensitivity on both sides of the debate. >> what we really find is that if you look at how the windsor majority analyzed this, they looked at the history of enactment and own text in order to determine whether this departure is significant enough to trigger a violation of equal

protection clause. they said it was. they said there's equal dignity denied to same sex marriages and it was the essence of the statute and humiliated tens of thousands of children. it said in the federal context 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 its 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. it seems like a serious difference. >> they've been in charge of the issue of definition, but when it comes to place of celebration rule, this is a rule that they have followed. as i say, it is a theoretical discussion as to what they

wouldn't follow. the deal that these couples made when they got married in orthotic, k massachusetts, delaware. they would have a marriage they could carry from pennsylvania -- >> should we add into the logic of this they were well aware 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 it goes to the thinking that you proposed. >> right. but there's not 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 where can i go here and go there. they do expect 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, freedom to marry is recognized. that includes 20 to 21 states where the deal is done. >> that goes both ways, wouldn't you agree? >> no because we're now at the point where if -- this is why the recognition case is so significant. because at some point when the democratic process is played out, you are at the scale that with we have here, nearly half the country in the 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 -- >> the reason i think it cuts both ways is on the one hand, it helps you in the sense maybe you're getting tipping point it's out lining states and

course of that. on the other hand it's suggesting the democratic process is working and working effectively and very quickly from the client's perspective. >> in 27 years. it's been a long process of development. you know, judge, what i'm suggesting is that if ultimate role of the federal court is keep states from denying the liberty to certain citizens. 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, those children deserve to have two parents. the state is now saying because of our commitment to democracy, we're going to say no to you. we're going to wait for you to come up with $7 million and reverse our constitutional

amendment. you know, we'll see you in a few years when you can pull off that kind of fund raising and democratic action. the reality is that these rights are very, very profound. we know from supreme court case law that a marriage is a very significant thing. it's solemn, precious, got all these attributes that allow you to have the relationship with your children and spouse. 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 -- >> it isn't just subject to vote. i'm curious why you're so sure about the better path. in other words, let's say the gay community gets to pick the path. you can get your supreme court decision in june of next year or 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. >> i'm trying to suggest the constitutional path under due process and vested rights that comes with marriage. >> the assumption of the question is you can have either one. it's not obvious to me why the supreme court ruling of five justices in june 2015 is the better path for the community. not necessarily clients, the community at large. changing hearts and minds happens through democracy more effectively than through court decisions. >> i understand judge. i represent four couples. their kids deserve two parents today. they are entitled to those based on notions of due process and equal protection. especially when you look at the movement that has occurred. this is to the loving situation which by the way was a recognition case. i mean, that couple moved to

d.c., got married, came back to virginia and were prosecuted because virginia wouldn't recognize the d.c. marriage. at the time of the decision in 1967, there were 15 states that had repealed the ban on interracial marriage. there was momentum going in their favor. supreme court still struck down their prosecution. there were still 16 states that prohibited interracial marriage. >> that doesn't seem helpful to your non recognition point. that's not the analysis that the supreme court follows. the analysis followed is not the fact that virginia wouldn't recognize a d.c. marriage. it was the fact virginia wouldn't recognize for instate or out of state couples inner racial marriages. that path goes back to the first question i asked which is we really should start this inquiry from the perspective of whether

the state and first instance has authority to deny same sex couples a marriage license. >> even in windsor -- and by the way the facts came from footnote five in loving. they considered it. it assumes state recognize of marriage is consistent within the state. they say that twice in the majority opinion. what we're developing here is second tier of marriages in ohio. opposite sex couples that come in with various legal hiccups in their marriages from other states that a ohio says oh never mind. and then same sex couples ohio says no. you can't have your marriage recognized. this does get us to the other aspect of equal protection and why special consideration should trigger an equal protection

finding and violation in this case. that is the notion. we've got in this record the remarkable collection of all facts that went into the passage of the 2004 ohio supreme court or ohio constitutional amendment. one of them just to name one in the declaration that's exhibit q is the state description of the measure. this is published by secretary of state black well. it's still on the website. they have the pros and cons. under the pros it says this measure will prevent the state from spending any money and allowing homosexuals which they describe as being in deviant relationships. there's a real prejudice there. this notion that the measure gave effect to the private prejudice against gays is one that bears some weight. i recommend to you the brief

from professor pollbot -- >> i have sympathy for judge holmes on this point. the idea is not to create a new category of people we're going to label big gots. >> that's the point. it's not labeling people. it's just like an unemployment case. if i represent somebody and my client was fired because they wouldn't exceed to a customer's demand, then i don't have -- in a title 7 case, you don't have to -- it isn't a defense to honor customer prejudices. in this type of situation, under palmore you had a supreme court case where a custody decision was made. the child was removed from a situation because the judge thought oh, living in an interracial family, that creates

tension. the judge didn't have prejudice, but the judge was exceeding to the prejudice of others. what the supreme court said was don't let us pass laws that actually implement private prejudice of others. it isn't a finding that somebody is i big et. it's the finding that a law could get pass. >> i would say a compliment to people that passed this that they had an mouse. >> this isn't about being a compliment or not. it's about the factors we ought to look at in order to determine whether this measure targeting this narrow group of people, same people targeted in windsor is constitutional. history of discrimination, history of targeting even in the measures description by the secretary of state. think about the text. the constitutional amendment in ohio says not only that we aren't going to define marriage

to include other than a man and woman, it says no civil union. nothing that a proximates marriage. it says get away from us as far as you can. those are the types of things the supreme court looks at when even if doing rational basis. i won't use labels. these are the factors. they line up here to say this deserves the special consideration the court gave the federal measure in windsor. when you do that, especially in light of the role of the federal courts, to prevent states from denying liberty to people, to be the backstop, it's appropriate to act thousand. was it appropriate before? i don't know. we weren't many this case before. i say that now with half the country practically in a situation where they're going to want to bring their marriage across state lines. with those children in the balance, yes. now is the time to act.

it's appropriate to act. i would say also that we ought to think about the harm we're dealing with in a situation like this. the couples that are our plaintiffs in this case, three were impregnated by artificial insemination. there's no need to go to state court and deal with fathers that are claiming rights. under ohio law, if you're married, and you use the process of artificial insemination, the father is deemed the parent of the child. so that same rule should apply here. by the way the implementation question is easily answered. do a definition for all laws. get away from husband and wife. get away from father and mother and go gender neutral. i don't think that that's a serious impediment to

implementing marriage recognition as it would be here. and the difference is huge in this case. you've got the non birth mothers of three babies saying i am a parent. sue me if my kid doesn't get my support. call me if my kid doesn't show up for school. prosecute me if there's neglect of my kid. ohio saying no, we don't want that. we'll let this kid only have one parent. if you're an opposite sex kid, then you will have two parents. that's a super harm that's why the matter urgent. as we get more and more couples with children presenting thepsi themselves in ohio we can't wait on the democratic process and suffer the harm at this level they are suffering. both of those names need to be on the birth certificate.

that's practical. windsor talked 11 separate times about the dignity that was owed to same sex couples. in that opinion, it said repeatedly over and over, targeting these couples for second tier status, humiliating children in these relationships causes the very purpose and the actual core of the statue to treat them unequally. that's exactly what happened in ohio. we have both the same lack of dignity that was recognized in windsor and these very practical problems of children getting only half the parents. they should get both parents. the district court was correct

when it said the birth certificate is where parents freely reflect on rights on the parent side and responsibilities. this is the only common governmentally uniformly recognized readily accepted record that establishes identity, parenting and citizenship. it's required in an array of legal context. in this case, what you see in ohio is harms that come from marriage recognition from cradle in the henry plaintiffs to grave as in the obergefell case. these couples are denied lack of con sorgs in wrongful death cases, denied tax benefits, other benefits. these are benefits that are taken for granted by different sex couples. i've been married to the same

woman 42 years, three great kids. laws are rigged in my favor. i get tax benefits and other benefits. that's fair in a sense to rig it in favor of marriage because we pay our taxes, buy our houses, buy stuff at the mall, take care of our kids. put less demands on the government. same sex couples deserve a piece of that. there's no reason to treat them unfairly with respect to this balance that the government has drawn with respect to favoring marriage. it's important. the death certificate is the same thing. it's important it be accurate. it's the last record of a person's life on earth in this country. to be wrong, i mean talk about a dignity violation. i mean that is absolutely huge. i think it bears -- it's

sobering really. so each of the four children in the henry case have two parents. affirming the district court will cause ohio to recognize these families and the marriages that anchor them. affirming the district court will also cause the death certificates of william mize and john arthur to reflect their marriages and a allow those men to rest in peace. thank you. >> thank you. mr. murphy, you have a few minutes for rebuttal. just a few quick points. first the question about isn't this case entirely dependant on the other case, i think that's

exactly right. how it comes out explains how this will come out. if michigan comes out upholding the traditional marriage, i haven't heard any basis for having exception for out of state recognition. the first point that was made was due process right deeply routed recognizing out of state marriages. that doesn't take on the notion that you don't create such due process rights when there's a source of commendment in the clause and ignores the equally long standing -- >> but couldn't we say, if we wanted to, that ohio is perfectly free to refuse to recognize -- refuse to issue -- refuse to recognize people who get into common law marriages within the state but then apparently allow somebody who's marriage is a common law

marriage considered valid in another state to come in and recognize that marriage? >> it's a notion of what ohio's public policy is. there's no question ohio would recognize some marriages that would not be lawful in ohio. i think ohio has always retained the exception for those marriages that violates public policy. public policy exception long goes beyond this debate. there's no way you can say there's no deeply rooted notions to the exception. it's cited in cases. in state versus brown, it talks about the exception in 1890s. with respect to windsor, i completely disagree that the federal and rational played no part in the ruling. it wasn't a federal constitution case on the outcome. federals and rational was the

entire rational was why there was an mouse there. that's entirely gone here. federal government had engaged in unusual intrusion. unusual law triggered the an mouse scrutiny under the protection clause. you can't say that for these types of laws for reasons i just suggest had the this public policy exception has been around in ohio for a long time and certainly predates the present controversy. the public policy exception can't be explained -- >> the public policy is not recognizing same sex marriages. >> yeah. >> the content of which would possibly have been illegal and a crime in ohio for most of that time that you're talking about. >> well, that just goes to show there's no deeply rooted right with respect to out of state recognition of same sex marriage. then the third point i'd like to point out briefly is that the citation to some of the record

materials in equality foundation this court made quite clear that legislative motivations in the referendum context are impossible to determine precisely because it's a referendum. it depends on intent of 3 million voters that actually voted for this constitutional amendment. that's an analysis that's completely -- that is literally impossible. you can't engage into minds of everybody that voted yes. that is distinguishable from rumor and windsor precisely because a court in those cases didn't engage in the legislative intent in the sense of what laws on their face and said laws on their face are unusual. that's not the case here. so if there's no further questions, i'll respectfully ask the course to reforce the cou--

reverse the cases. >> can we go back? you thought i was talking about the suffrages crisscrossing the country tying together an amendment to the united states constitution. that's not at all what they did. they knew that was virtually impossible. they were going to local people trying to get the right to vote on the school boards. they were going to each state legislator saying please infranchise women so we can vote on state ballots in this state. they did it state by state by state. when it came to the end and they did get the right to vote finally in i a few of those states, there was still the question of whether they could vote in national elections. that's why the constitutional amendment was required. i just wanted -- i wanted us not to be talking past each other if you understand? >> yes. democracy might be slow. it has more legitimacy.

i don't actually think it's going all that slow in this case. >> right. >> i know the initial process is undertaken now for instance repealed the ohio constitutional amendment. with that, flthere's no other questions. >> i'm fine. thank you mr. murphy. appreciate your help. the case will be submitted. cspan 2015 student cam competition is underway. this competition for high school students will award 150 prizes totaling 100,000. create a three to five minute

documentary. it needs to show varying points of view and be submitted by january 20, 2015. go to student cam.org for more information. virginia's democratic senator mark warner is seeking a second term, challenged be by a former republican national committee chair ed gilespi. they debated earlier in the week. here are a few minutes of that. >> when you're not in the white house, my party doesn't have one thing to stand up to right now. i'll share things i'm at odds with members of my party. i believe in the early 90s when congress passed mandatory minimum sentences in the u.s. congress that we swung too far and that i believe we need to revisit those.

in particular for non violent offenders and allow more discretion for judges and frankly more for states to make determinations. i think we went overboard in terms of federal sentencing, mandatory minimum sentences. i'm someone that believes in redemption and then reconciliation. i also believe we need to look at the prospect of banning the box in terms of checking after you served your time and paid your price in terms of time in prison for certain crimes and for certain jobs. i don't think you should be required to check the box as a felon which increases resit vichl. if people have paid debt to society, people need to welcome them back to society and make it easy for them to come back to society. for certain crimes and certain positions. >> i i appreciate you asking

that question. my whole campaign -- my opponent's whole campaign has been based on this bogus charge, 97% charge. independent political analysts have called it misleading and not reflective of my record. i am ranked in the center. where do i stand up against my party? let me go through the list. i support r drilling offer the coast of virginia as long as we get a share of royalties. i support the keystone pipeline. as a matter of fact i've been protested against in harrisburg because of that support. i stood up for the president on foreign policy choices around isil but also in terms of being stronger against putin and russia. start calling early in march for stronger opposition to his activities in ukraine and around europe. it's that reason that virginians

know my record. it's that reason why again in this campaign i'm so proud to have the support of more republican, former republican legislators than when i ran the first time. the claim had merit. i don't think that would be the case. what it is though is the kind of political sound bite charge that comes from somebody that spent their career as an operative. this weekend on the cspan networks friday night 9:00 p.m. eastern on cspan, a memorial

service for james brady. on saturday night at 9:00 p.m. eastern, former secretary of state colin powell talks about world affairs. friday night at 8:00 on cspan 2, ralph nader calls for appliance between parties to take on issues that playing america. saturday night at 10:00, author atul gawande on why he feels science should be doing more for the dying. friday at 8:00 on american history tv on cspan 3 curator and director of cia museum.

saturday, the king george's war history. how they gained fighting experience for their own revolution. sunday night at 8:00 p.m., president ford's' testimony on the nixon pardon. find our television schedule at cspan.org and let us know what you think about the programs you're watching. call us at 2026263400. e-mail at comments @cspan.org. join the cspan conversation. like us on facebook, follow us on twitter. a federal appeals court in new york city heard a case last month on the national security agency collection of american phone records. the american civil liberties union is suing to stop the program and have all data deleted. the oral argument is an hour 45

minutes. the court of appeals please be seated everyone. good morning again. we're about to proceed here the case of american civil union. i thought i would say one thing. this case apparently is sufficient interest that it's being broadcast. i don't know who is going to watch it if anyone, but to the

extent that it's going to be watched by people who aren't lawyers and aren't familiar with appellate argument, i thought i would say one thing about what is not likely to be seen here. this case is about the bulk data collection program operated by the national security agency. what viewer are about to see is not a debate on the merits of that program whether it's a good thing or bad thing. that's the two reasons. one as a matter of substance the issues before us start with legal issues about whether this court even has the jurisdiction to resolve any or all of the questions raised by the plaintiffs. then continue the questions raised by the plaintiffs on about whether the program is a good thing or bad thing but

about whether it's authorized or perhaps forbidden by statutory divisions of congress and provisions of the constitution of the united states. that's what's before us. it's not also a debate as a matter of form. the procedure here is not involving lawyers making arguments. there are likely to be interpreted and ask a lot of questions by the judges. that's not because we're rude or because we don't want them to make their case in an uninterrupted manner. they've already had the opportunity to present writings in an uninterrupted manner. this is to some degree our time to ask questions of the lawyers to clarify points they're making and implications of those points to perhaps raise issues that haven't been fully addressed by the parties and to give each side the opportunity and indeed the obligation to not just say

their best points but respond to the best points of the other side. it's not going to be a sort of free ranging debate where everybody gets to say everything they want about these programs. it's much more limited than that. all right. so i don't know whether that was useful or not. it's not useful to lawyers here who already know what's going to happen. you may proceed. you have reserved time for rebuttal. >> thank you your honor. good morning. may i please the court. everyday the nsa collects records of the phone calls made by millions -- >> i'm going as residing to threaten. i'm going to interrupt you at the outset. i have two questions that are essentially questions of fact. i find it kind of difficult to approach this argument without

understanding that at the outset. one is that as i read them and i did read them in some cases more than once, it's not clear to me whether e-mails are covered by this program or not. it's possible that's a big secret as to whether they are or not. i don't know sitting here whether i can get a hold of my mistresses and say let's do it by e-mail because the government can't watch. i'm sure my wife isn't going to watch this program. i'm terribly serious about the question in so far as we're allowed to know and if e-mails are covered. >> e-mails are not covered by this program. this program solely concerns records of phone calls made by americans made everyday. the government has operated programs in the past under similar interpretation with relevance to allow it to collect same information for e-mails.

that's not what the case concerns. >> okay. so we cannot take into account one way or another whether somebody can say -- lord knows i mean this very seriously that they can say to a coconspirator of some sort, well let's just use e-mails. i don't use the phone anymore anyhow. >> i think the court can take that into account when court considers breath of the interruption of the word relevance and section 215. the court can take into account when it considers the breath of the government's interpretation of smith and fourth amendment jurisprudence. >> it's your position if the government is correct here, congress has authorized the same sort of order made with respect to everyone's bank records in the country. >> that's exactly right. if section 215 permits bulk

collection, bulk collection would not just be phone records but any records. permitted not just under section 215 but every run of the mill subpoena statute and not just terror investigations but any crime involving more than one person. >> let me ask this though. if the data remained in the possession of the telephone companies and the government saw it and it may be through tens or hundreds of subpoenas to get the same information they're basically gathering by using queries against the database the government has collected, would that be constitutional? >> the government has that authority now under a number of statutes. we don't challenge the government's ability to issue targeted demands for records from the telephone companies or any other company. >> that's not -- when you say targeted demands are you saying because the government have a number that the fbi or whatever

organization comes in and says we have a number that we have are asked for. we want the phone companies to apply this number across the data set that would be assuming it's the same data set that the government currently has. i'm asking is it your position is it constitutional or unconstitutional. >> it would be constitutional for the government to issue a targeted demand for a limited set of data as it has always done. what is unconstitutional about this program are several things. first that the government is collecting in bulk everything at the outset in a way that has never been permitted ad. it runs queries on that data. our principle complaint is about the government's collection of that data. >> that raises what a said is my second question. that is -- there appears

throughout this particularly -- i mean, this case was brought, was begun less than a week after the disclosure of the program if i'm not >> that's right. >> there's been a fair amount of water under the bridge since then. what we refer to as the red brief, which is to say the government's brief, they mention three things. one, if i remember, the number of hops, that is two degrees of separation, rather than three, and also having to get the court approval before entering and quarry, that's my understanding, is the second thing that's done and has been done already. the third thing is this notion that they are going to go back -- they haven't yet but they're going to go back to congress and they're going to say no more -- we don't want to do this anymore.

we want to keep all this information in the hands of the service providers and not -- instead of being -- being able to query them in one way or another, and i gather that's not a simple thing to do. but we're going to take this out of the hands of the government and out of -- the data will no longer be sitting there in the hands of the government. it's going to be put back where it started and will be queried from there. if that was done, if congress were to pass such a law, would that essentially end the controversy here? there's kind of a technical question as to what your standing would be if they did that. leaving that aside, i would have thought, having read that, that if they did what the president said in march they were going to do, would you have embraced it

and said, yeah, that's why we started this. i can't -- i apologize. but i think of senator aken 40-some odd years ago saying declare victory and withdraw. >> we would love if the government ended the bulk collection of american phone records. if the government did that and it also purged our record from the databases it currently has, that would resolve everything put in place -- put at issue by put in place by our preliminary injunction motion. that is not the current state of affairs. >> continue. >> i think it would be maybe unwise to expect congress -- this congress or the next to act in that way so soon. there are two bills, one before the house and one before the senate, that have differences. they haven't yet reconciled those differences. and there are only a handful of days left in the session of this term. >> i understand. they are thinking of other things at the moment.

>> i sure say that the injury is ongoing on a daily basis. even if congress acts in several months, we're entitled to a remedy today for the violations that continue and are ongoing. if i may, i'll return, i suppose, where i was going to be to begin weather the statute, which i think offers a narrower ground for decision. we eventually have two positions under section 215. >> the government insists that we don't have jurisdiction to reach the statutory issues because congress has precluded implicitly what would normally be our jurisdiction under the procedure act. >> that's right. >> i assume you're going to address that. >> i am. i think the government is wrong for a couple of reasons. first, the apa creates a strong presumption of judicial preview for prejung tif claims for conduct. that can only be overcome if it's clear and convincing evidence that congress intended

to preclude the injunctive claims such as the ones we bring here. there isn't that evidence. the government points first to section 2713 of the communications act. but that statute by its term is preclusive only as to claims within its purview. second 215 is not within purview of section 2712 of the sword communications act. it applies to several unrelated subchapters of fisa and not even the government contends that it applies at least as a texture ral matter to our claims here. the government also argues that section $215 itself implicitly preclude our claims. but the supreme court made clear time and again that congress is providing for a cause of action for one class of plaintiffs does not deprive other plaintiffs of a cause of action. if that were the case, then the presumption of review under the apa as justice scalia said would not be much of a presumption at all.

instead the question turns on one of congressional intent. what did congress intend when it enacted 215? on that score i think the legislative record is clear. congress enacted the recipient review procedures of 215 after a district court in the southern district of new york had invalidated the national security statute because it failed to provide for a clear avenue for review for recipients of national security letters. congress fixed that problem in 2006. it similarly provided in the same legislation review for recipients of section 215 orders. but it spoke not at all about review -- >> perhaps you can make clear how we're going to deal with the red light after 12 minutes. >> this is clearly a matter that will go on as long as at least we find it valuable to go on. >> i should warn you, i went on the c-span website, which that

technical i am. and i went on for the purpose of finding out what c-span stands for, which i'd be happy to share with you at another time. but i found out that they, unlike what it says here, they have set aside two hours for this broadcast. >> we have something to shoot for. >> we will go on at greater length. go ahead. >> thank you. so i think what i was saying is that the legislative history of section 215 makes clear that the recipient review procedures did not decide the question at all about whether congress wanted the targets of 215 orders to have available statutory review. in that context where the legislative intent is -- cannot be discerned, the te fault rule of the epa governs and provides for injunctive relief.

>> with respect to the -- the government makes an argument further that no one would have anticipated a lawsuit like this, that is one brought by someone whose records were demanded because the intent was that people in your position would never know that this was going on. does that mean that congress didn't anticipate this kind of lawsuit or intended to preclude this kind of lawsuit? >> no. this is a point on which we disagree with the government. congress clearly provided for the possibility that targets of 215 orders would learn about those orders. it contemplated that recipients would have a right to challenge the gag orders imposed upon their ability to tell customers about the orders and that they might in due course tell their customers. so i think congress clearly contemplated that targets would learn, that it did not then go on to preclude whatever claims it wanted to preclude i think speaks clearly that congress simply had no view on the matter. >> you are talking about

recipients, which is the service companies, and not individuals whose records were being collected. is that right? >> i'm talking about the gag orders imposed on recipients by section 215. those recipients can challenge those gag order provisions. and i think -- >> if they win, then a person whose records were at issue would learn of it? >> that's exactly right. and i think there's something a bit bizarre about the government's arguments. it attributes to congress the intent to derive this court. for a narrower path for decision. there's no question that this court will have to at least resolve our constitutional claims. the only consequence of the government's claim of preclusion is that the narrower ground for decision would not be available to it. that's very strange intent to attribute to congress. there's not a coherent theory offered by the government on why congress would have wanted to preclude our statutory claims knowing full well that our constitutional ones could proceed.

>> that's assuming congress actually gave that thought at the time. i mean, i'm not sure that that necessarily would be the case. when you are talking about the statute, congress did address the issue of the recipients. and they didn't say recipients and others. is there anything to suggest that congress at the time they were dealing with recipients thought about others possibly having the ability to challenge this statute? >> i don't think there's anything in the legislative history. and that, i think, is fatal to the government's claim. because in that situation, where there's no intent one way or the other, the background rule of the apa controls. i think it's important to point out that when congress amended section 215 to add the recipient review procedure, it asks the government its view of the necessity of those procedures. and the government went to congress and said, we think as a statutory matter that those --

that there is already an avenue for judicial review for recipients of these orders. that was their position in the litigation over the national security letter statute, and that was also their position in congress. we don't think that clarification of the law is necessary, but we welcome it because it brings no harm. it clarifies the species of judicial review that the government will told the district court was available to recipients of these orders. congress was addressing the narrow problem of the -- of it being potentially unconstitutional for congress not to have provided ready judicial review for recipients. >> your basic argument with respect to it the secrecy point at least an argument with respect to the secrecy point, is that if congress didn't imagine that this thing was ever likely to happen, assuming that -- i understand you have an argument that they should have foreseen this possibility, at least some contingent circumstances. but if they didn't think about this at all, then you win,