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us on twitter. >> a panel in since natty heard oral arguments on the constitutionality on the same-sex marriage ban. they have yet to issue the decision in the case. on monday, the supreme court decided not to hear cases involving gay marriage bans in other states. michigan was not among the states so the ban was not affected. up next, the oral argument in the case michigan's ban on gay marriage. >> good afternoon. on behalf of the people of the state of michigan, may it please the court, as justice kennedy explained a few months ago, it is a fundamental premises of our democratic system that the people can be trusted to decide even divicive issues on decent

and rational grounds. that's what it case is about. who gets to decide what the definition of marriage is and not what the definition must be. who gets to decide on two different levels. the hiearchy is about whether a district court can disregard and directly on point holding the u.s. supreme court amy baker versus nelson and the bigger picture, it's about whether federal rights that should be done through the amendment process and courts discussing the due process doctrine. the common ground in this case that the u.s. constitution is not directly addresses same-sex marriage that means the turn of the question with the due process is whether or not the right being asserted is objectively deeply rooted in this history's tradition. liberty and you can't conceive of liberty or justice without it. same-sex marriage does not have

that necessary historical deep root. >> what do do you about the fact that one could have said the same about lawrence? >> with respect to lawrence, the lawrence court didn't direct the address, but since then this court repeatedly applied it and recognizes the continuing way to recognize the process both in the u.s. association case and this court continued to apply as recognized that that sets off the relevant standard. they don't reverse all of the cases before simply by not mentioning it. this court is bound by it and applying post lawrence. >> what are about baker? you mentioned that early on. it's not of our long opinion, i

think you would acknowledge that a lot happened since then. you also acknowledged that. how do we deal with it? >> the length of it doesn't matter. a question is a question of hierarchy. the united states supreme court repeatedly said that the summary decisions that it makes are binding him to lower courts. this court reiterated that in the song versus the city a& combined by the united states stream court. >> the development that doctrine that has grown out of other supreme court cases.

they are supposed to file the supreme court decision and subsequent to that n rodriguez and this court has also made this point. i disagree on the development's point too. both were presented on baker versus nelson. you don't think it came out a few years before that indicates a doctrinal development? >> that are shows an area in the right to privacy and i don't know if that shows a development

in the fundamental right to marry. they won't have any say on the fundamental right to marry. >> it's just that the policy and they are deeply rooted in the american society and that went by the bye. >> it's about the fact that there is racial discrimination and violation of the cause which the supreme court recognized the components of the 14th amendment. the fact that it was -- >> it was, was it not, the law across a huge swath of southern

states. and against the possibility of interracial marriage. the language said the right to choose whom to marry is a fundamental right. >> to the extent that there is an attempt to analogize loving with same-sex marriage, they rejected that express analogy in the baker case. it's a matter of what they have done. >> what you want us to do is take an 11-word opinion and knockout all the efforts. and everything involving same-sex marriage in the last 10 or 11 years. >> in the first circuit, it was bound by baker and there have been other courts that recognized they were bound by baker. that's a simple question of

hierarchy. if they wanted to say the freedom to choose who to marry was not for the opposite sex and they didn't do that, that question was directly presented to them. that shows that there is a difference between race which does not go to the heart of what marriage is. >> you would have to concede in terms of what the electorate wanted, the loving decision went against what the electorate wanted in much of the south when it was announced. >> for did not when you talk about the erect rate passed to end racial discrimination. they wanted to end it. >> you might be interested in knowing that as recently as 1978 they provided the interracial marriage of negroes and persons of mixed blood sdebded from a negro to the third generation inclusive or they are living together as man and wife is

prohibited. the legislature shall support this section by appropriate legislation and march of 1978 and the tennessee electorate was asked to repeal that decision in the constitution. they did so and they did so by a margin of only 8,000 votes out of almost a half million. they did also choose later to end racial discrimination. that shows that the people can make the decisions. that doesn't mean that the history and tradition of this here which is skmarnlg if if you look at windsor, this is talking about the history and tradition of marriage and separately talks about the history and tradition of same-sex marriage. with respect to same-sex marriage, it recognizes that it

was only until recent years when that was even possible. >> that's true, but if we take this case to be about the right to marry and not the right to marry a person of the same sex, isn't what's going to happen pretty clear? people ever passing laws to change the laws. >> the issue is the right to marry here or are we dealing with the right to marry ordealing with something like what were those cases. the right of inmates to marry or deadbeat dads to marry. they said fundamental rights are fundamental rights. simple as that. the only people are not getting

the child support payments can marry. that's different from saying there is a deep root that only people of the opposite sex can marry. those cases involve limitations that were not deeply rooted and inherent to what marriage had been. the u.s. supreme court recognized this and talking about history and tradition in the windsor continue. marriage between a man and a woman was for centuries and recognized as fundamental. the fact that marriage has been defined between a man and a woman is fundamental to the definition of the term and said that was true to the definition and the term throughout the history of civilization. >> a reality that the marriage is always about the changes with social morse and maybe it was about procreative possibilities and modern conceptions of marriage are more about love, affection, and commitment. when you think of it that way,

it seems harder to justify even on a rational basis grounds. everything you are talking about is nothing fundamentally right. that doesn't answer the question that really was the holding in all four of these cases. it starts to get difficult to see the difference between one group eligible and the other not. >> i agree. when you focus on rights, history is the focus. under the protection analysis, the question is the starting question for the increase, why is the state interested in marriage in the first place and emotional connections between

people they don't say how long the friendship has to be. the reason the state has interest in marriage is because marriage is to children and the bringing of neutral society and how they are going to make sure that they are cared for. it's rational for them to have the interest and promoting marriage. it will be more likely that a child will have the benefits of having a mother and a father. >> why is rational excluding everyone else. it doesn't. it cuttings down on the procreation of children and interfered with the procreation and in some of those marriages, at least one of the partners is able to procreate.

that they are flipping the question. they lay this out clearly. the question is whether the state interest is advanced by including the first group and a second group that does not advance that interest. that case was about about veterans benefits and have them start. the benefits encouraged people to join the military. and the question was are they entitled to the benefits and the question they would not advance the state's interest in making it more likely to be able to fight the nation's services.

it's to encourage procreation. >> making sure that procreation occurs in long-term relationships. >> isn't that hypocritical to allow couples to marry that can't procreate. >> they are asked are you going to procreate? the definition of marriage is always recognize, but opposite sex couples have the right to marry. >> you would acknowledge that there important benefits to the state beyond procreation, i

should think. the benefits and responsibilities attended to marriage seem to bear on the question that we are adjusting here. whether or not those matter to a state that said as virginia did, we have no interest in balancing adult love. there these benefits and responsibilities that would be important to the state and the taxes and consistency with the married members and folks in marriages throughout the state. they would have the same response. there would be those with multiple state interests. the question here is whether it's at least a rational state interest to make it more likely that every child would have a mother and father or if it's a

rational state interest to try to recognize it as a biological reality. opposite sex couples can have unplanned pregnancies where as same-sex couples can't. they address that concern extending it to same-sex couples. there is at least a rational basis. that's all that's necessary. there other benefits to marriage, but the fact that that doesn't undermine that it's rational promoting this marriage or these benefits. >> if everyone acknowledges recent cases have not applied to a rational basis review. >> we know from windsor, for example, the focus was. >> it is different. >> they start out by talking about the inquiry and the rational basis review and talks about whether or not there is a entire to harm.

windsor does the same thing by setting the requirement to harm. in order to set aside the rational basis. if there were a desire to arm, you might be able to tell that if there was no rational basis. there is no one reason to fall back on the desire to harm. the presumption should be what i started out with. the voters are decent and rational. that's what the rational basis test is. there is a conceivable basis then that's a reason to uphold the law. this is a democracy promoting rule. it allows the people to make the decisions. remember this is something that the people can decide to change tomorrow by mending the federal constitution. it's not that the court is the only recourse. the court shouldn't be. the third basis is the fact that there is uncertainty in the area. such a new thing that it's too early to tell. the plaintiff's experts conceded

that trying to study children raised in same-sex households, there hasn't been a single study that has been done of children who were raised in a same-sex marriage. a rational person might think even someone who would vote in the future for same-sex marriage, a rational person might think it's too early to tell. it's rational to wait and see. there is a number of additional rational basis. >> we can talk about the rational basis review. if you get to skrut crutiny, wo you concede the state has a problem? >> no. it would depend on the framework. the intermediate scrutiny setting aside the fact that these this court restrict it from adopting the sexual

orientation even if they were not there. biological differences between men and women can make a difference. in the wynn versus inf case with mothers and fathers born outside the united states. they upheld the distinction that required men to prove to a higher level of degree that they were the father and required women to prove back to the u.s. it's possible to survive under scrutiny and i guess the other question is under the equal protection clause still, this is simply a discouraging case. the law is neutral. the law also has no intent to harm the district court and recognized that it wasn't possible to say there was an intent on their part. the only thing that is left is washington versus davis. even with race. >> how is it neutral? >> it's neutral -- >> define marriage as including group and not another? >> by defining marriage between

a man and a woman. >> neutral as gender-wise, i understand and i agree with that, but i don't understand neutral as between people of one sexual orientation and another. >> i think the answer is it doesn't prohibit them from marrying either and so it's neutral. there is no evidence this was done to try to exclude them. the evidence is that it was simply continuing throughout history. the only reason i think -- that's the answer. >> you mentioned the 6th circuit. i have seen you talking about davis. >> as a friend of davis, yes, your honor. >> the problem with the quality foundation is as i read it, it depended and relied on the

supreme court's bauer's decision reversed in lawrence. i wonder. >> the equality foundation opinion mentions bauers only when it's talking about prior history and then it's based on roemer. the analysis is under rumor. it doesn't rely on that. again, this court even after lawrence continued to apply the same. >> i have to tell you, we are sometimes perfectly capable of blindly applying cases. i'm not sure i would be willing to say we did. that happened. >> if you were to lose possibility, there is another possibility with the heightened

review. that makes it difficult for justifying the law. are there practical implementation problems and with brown, the only implementation problem is resistance. it's an easy rule to implement. i'm interested from the state's perspective and there may be controversy and resistance, but why is it difficult as a matter of implementation to implement this new rule. >> so if the out come were that same-sex marriage is protected, would it be hard for the states? >> what problems result? >> you would be talking about what harms might come from changing. >> with the implementation problems, is it difficult on marriage, divorce, or anyone else or is it simple?

you include this new group. >> you would have widespread impacts. i'm not sure how those would play out. >> but what would they be? >> it's part of changing how the laws are about marriage. in the big picture, one of the things that could happen is something that there would be no institution in michigan to say it's important to have both a mother and a father. in terms of societal impact, there might be harms to say that there would be nothing to say it's important for fathers and mothers to be there. it's different things. >> do you think that's what happened in the states where same-sex marriage is now valid? >> it's too early to tell. it has been ten years. >> but we are now to something beyond 25% of the jurisdictions in the country. and probably more than that in

terms of population as a whole. it doesn't look like the sky has fallen in. >> point is that it's too early to tell when you are changing a red rock society to ten years. that's not even a single generation of children. it could be possible to assess the out come on children. >> i thought there was a lot of evidence offered in the trial in michigan. that indicated in fact that the out come on children was recently benign given what they know at this point. i know you are going to say, i see it coming, it's too early to tell. >> i am going to say that. that's a valid point, your honor. >> then the people who tried to come in on your side of the trial and present all these terrible impacts that they said this would have, there was even the texas professor where they

had the disclaimer on the university of texas website saying don't believe anything this man says. >> your honor, the fact that one particular social scientist -- i think the big picture is that it's too early to tell. this is something rational people could agree with and something the justice made that rational people could recognize it is too early for them to be able to tell. >> there is a bigger point that that the votes of citizens of michigan is that i should think that -- under review, they didn't that among them. that's a person of good will to

disagree. >> fair enough. the i think the numbers are up talking about that. >> the red light is on. >> the dates that was were voted something like ten years ago. >> people can change their mind in the future. people say it's unconstitutional. >> you will get your rebuttal time. >> may it please the court, for 50 years the supreme court recognized that the freedom of personal choice in matters of marriage and family life are protected by due process.

they have a constitutional right to share a life to marry, to form a family to raise their children. we show in the case that no matter what standard of scrutiny the court uses and no matter what doctrine applies. this is unconstitutional. the court observed is the articulation of the right itself. is it the right to marry or the right to what the state is called same-sex marriage? >> what about -- i realize before the first and second circuit said finding, there is no ma norities recognizing that. this is a serious issue and the thing that is going on. oughtly enough there reassurances of a binding

precedent and everyone understands that's true. there is this damage that the judge pointed out. doctrinal developments. that's mainly from a 75 case. follow this until we tell you otherwise, then in the american express, the court is pretty clear about say ing saying they allowed to defer with the other line of cases. they always stuck with it. >> i don't think so. >> this is the one line of order and it binds unless it's subsequent. we believe they will constitute

that development. the case was a -- >> doctrinal development, is it fair to paraphrase that to me, reasoning that is inconsistent with other lines of precedent. isn't that what you mean? >> there is evolution of the concepts. evolution of due process concepts. equal protection in lawrence. i think the court -- >> that is increasingly inconsistent with baker. that's your point. reasoning and other cases that seem inconsistent with baker. >> it's totally consistent. >> agsteiny is distinguishable. it was a full opinion that had written opinions and a conclusion and the distinction between that type of situation is the fact that you don't know

what the rational for the court is. it's an 11-word order. you don't know what they are ruling on. >> i think that's why they are not fining on the supreme court. they are very casual about ignoring them. i didn't think it applies to lower courts. >> the second surk uh in league of women voters explained that lower courts can be informed directly by an earlier decision or informed indirectly by doctrinal developments. what we would say is here the doctrinal developments are the way this court is informed. therefore this court can make the call despite baker. every court in the country has ruled this way on baker. >> that wasn't true in the first

and second circuit before windsor. >> windsor is doctrinal development that we have because at least as a recognition same-sex marriage case. it's the degree that i would argue the do doctrinal development case. >> i think you rely on those cases. >> we do. >> that didn't alter the view of how to look at this. >> it didn't alter the view? >> the first and second circuit's view before windsor. >> one of the cases was windsor itself. >> i understand that. the court in perry certainly -- 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 begins berg talking about doctrinal development and the court didn't think anything of that. they decided that based upon

standing, but the court doesn't think much about that. they didn't even mention baker and talk about it. the court allowed california's ban to be struck down. >> it would have been strange for windsor to say anything about baker given that the contaping case to windsor is hollingsworth and they decided about the issue presented in today's case. >> i understand. i understand what the court is saying. in this case this court can reach it because there has been doctrinal development. >> i understand the argument. >> we are not asking to redefine the marital relationship only an end to the exclusion of same-sex couples from the right to marry. due process focuses on the attributes of the right itself. >> when you talk about getting that right, it requires state licensing. that's what your client wants.

>> right. state license. >> state license their relationship. >> and the right to marry, yes. >> the import there is something different than i thought you were talking about. >> you want them to recognize it and license it by the state to licensing. >> we do. the central attribute of marriage is the freedom to marry the person of your choice. the state said the court must make a difficult description of the right and the long history of decisions defining broader level. >> take the loving point. in 1968, a gay caucasian and a gay african-american man seek a license to marry. do you think loving controls that case in 1968? >> well, i think the court by

citing loving in windsor thinks there is not much difference between marriage by same-sex couples and marriage by an interracial couple. they cited it. i think the trend is certainly in that direction. i think the -- >> the trend lines are different from saying what loving stands for. isn't the consider pretty obvious? we have baker in 73. >> justice kennedy told us something about how the court may be viewing the cases and think you see it in lawrence and you see it in windsor and the court is saying that decades ago, certain practices were accepted. now we understand more about these things and we now understand that these are now going to be framed and discrimination. we didn't know about same-sex

couples. they were hiding because the conduct was criminalized. to say that with the argument have held water in 1967, it was a different time. >> i know that there is many significant benefits and some of them monetary that get extended to same-sex couples and i think that's significant. i have to believe based on that is 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 and the key elements here, it's just something i'm missing. i would have thought the best way to get respect and dignity is through the democratic process, forcing one's neighbors and employees and friends to

recognize that these marriages or the status deserves the same respect, the status in a heterosexual couple. it's fine to me why the democratic process that seems to be going pretty well, nothing happens as quickly as we might like, but i'm curious how you react to that point. >> the michigan marriage amendment gutted the democratic process in michigan. voters can no longer appeal to the legislators. the usual deference evaporates if there is a reason to get the beach communications and plenty of reasons to refer anti-pathy here. persecution and criminalization of same-sex conduct throughout history. >> with michigan voters, if another initiative was put in front of them, it might be a different out come, even today. >> the practicality, the michigan voters to get this

before them, they would have to come up with the signatures of 10% of the total number of voters that were in the last general election and it's very cost-prohibited for a minority to be doing that. >> the hearts and minds is one of the key goals. isn't it worth the expense? aren't you more likely to change the heards and the minds through the democratic process than a decision by the five justices? >> the constitutional rights may not be submit and they depend on the out come of the election. >> i'm assuming you win. i am assuming you can win on this. why do you want this route? it's not 100% obvious why it's the better route. it may be better for your clients and as a lawyer, you have to keep the focus on that. it's not 100% obvious to me it's

the better route for the gay rights community. that's not obvious to me. >> i am not optimistic that we can get that in michigan. the government made that same argument and said just wait for the passage of the e.r.a. that was 1973. we would be waiting now. the band bringing injury here. marriage provides unparallel social, legal, and mutual meaning. responsibility, dignity. it is security, it is a status, it is stability. but the plaintiff's losses go well beyond the deprivation to the right to marry. michigan's laws are discriminating same-sex couples. they are destabilizing and all parties agree on during this stril. a legal stranger to her sons and the legal stranger to her own daughter. they bring the loss of the

economic resources and bring psychological injury. they explain that no matter how confident and how devoted the second parent is from the child's perspective, some children will suffer from an ambiguousuously nonpermanent relationship with the second parent. the majority added more on wind sor. these humiliate children. the injury is especially unjust and especially cruel for the plaintiffs. a nicu nurse or emergency room nurse taking in the babies left behind. they are struggling to live. special needs and hard to place children and children of color and foster children. they took them in. these arguments will seem powerful if you get heightened

scrutiny and maybe just positive. do they suffice if it's rational basis review? >> under rational basis, the test there would be it requires a connection between the law itself. first of all the mother-father rational. they indicated it is not increasing the mother-father families. it's not deterring same-sex couples from marrying and having children and raising them responsibly. >> the national basis review allows under and over inclusive laws. that's the whole point. the legislature can address a problem one step at a time. the fact that it's over or under inclusive. the decisions will be corrected through the democratic process. it seems like that's your point.

it's under inclusive and if you care about the children in these marriages. if you care about love and affection, they are just as capable of love and affection as the others. that's not a review of how it works. >> the court struck down laws outlining what the court called under inclusion. striking down laws that are riddled with exceptions. striking down laws suffering for that misfit classification that identifies purr ported interests. >> those are unprecedented laws. they were unpress decedented la. thing we know, this definition for better or worse is not unprecedented. >> well, i think to the extent that the court considers this a one-factor test, and let's assume for the purpose of argument that the test is whether it's unprecedented in the sense of never allowing

same-sex couples before. whether or not it fits the roemer winder 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. losing a more totality of the circumstances approach. it matters that these are intensely personal rights as the vance versus brady economic interest. it matters that this was a constitutional amendment and i will distinguish that in a moment. >> this is an age discrimination case and saying police officers have to retire at age 50 and there is a correlation between age and physical fitness. that's a ridiculous law in terms of inclusive because you have

50-year-olds doing triathlons. i'm sure it was deeply offensive to 50-year-old or 51-year-old police officers that are more fit than 41-year-old colleagues. that gives you a sense of how tough it is to get through a rational basis or overcome it. >> the rational basis standard is not toothless. social security to some illegitimate children and not others. contra exception to married and not unmarried persons. only hippies were denied food stamps. all of those were irrational basis cases. johnson versus roberson saying that the inclusion of the included group furthers a legitimate interest of the state. the state is misreading that case. the court found that the line drawn there rationally distinguished between the two groups, there was good reasons why conscientious objectors can

be denied veterans benefits. they were not similarly situated with respect to the benefits. the law failed rational basis because the purported justification made no sense in how the law treated other similarly situated and important respects. this is the problem that we have. with the biology rational, gi michigan has a robust policy. adoptive parents have the same rights as biological parents. michigan allows artificial insemination so they don't further any of those ties. cases are struck down under bases that are riddled with exceptions. the band doesn't fit that rational. time to marriage. another disconnect. people can marry without having

children and people can have children without being married. the voluntarily childless, they can all marry. equal protection law doctrine distinguishes between marriage and procreation. in griz withold, a contraception case, they found that married persons have a right not to have children and in skinner, as far back as 1942, criminals can't be subjected to sterilization. not a marriage case at all. >> the problem of unintended pregnancies? >> with unintended pregnancies, there is another disconnect. again, it's the same problem. the band doesn't do anything to disincentivize heterosexual couples from marrying. marriage gives them that. it doesn't do anything to take it, way. this accidental procreation is a

non-rational because there is a disconnect. there is a purported purpose or the law that is in place. clearly with the right to marry, the bottom line is while many purposes do in fact procreate, the courts do not require that as a precondition to a constitutional right. the state is now arguing as the factual matter than we face and the voters must believe that they are preferable. that claim is based on the irrational speculation and based on disproven speculation. the social science consensus. two parents bring double the resources. the parent-child relationship

matters most. the relationship between the two parents matters. the state fully engaged in the process, they offered expert trial testimony from the doctor on the mother-father rational and they don't summarize the witnesses before the court. >> can i ask a question that seems to be to be at the heart of this. i saw in book, i think it's michael carmen's book who said in 1985, 25% of americans knew someone who was gay. by 2000, it was 74% of americans knew somebody who was gay. when you see that statistic, you realize social science had nothing to do with this. all of this change was the result of the concrete trumping the abstract and people knowing gay people and knowing they can have great relationships and be great parents and so forth.

what is odd to me about the plaintiff's position in these cases, it doesn't show much tolerance for democracies and it being slower than we would like. we have 21 states including columbia, one way or another now recognizing gay marriage. and we have a lot of other states that i suspect are pretty close. and some other states that will probably take a little longer. but the change -- doesn't have to do with social science. the change has to do with people knowing one another and seeing there's no reason for these distinctions. and it's just odd to me that, you know, the supreme court chose not to deal with this 62 years ago. that's something of a pacing decision. it's stayed its hand. it stayed all these decisions. it's something of a pacing decision as to when the right is recognized. and i guess it's just odd to me that state legislatures don't get a little bit of the benefit of the doubt in terms of when the pacing is right for them.

>> again, in michigan it doesn't matter what the legislators do anymore. it's a constitutional ban. >> i think four of the states did this through initiatives. did this initiatives. in other words, four of the states ruled -- came out the right way from your client's perspective from initiatives. so initiatives are just as effective as legislation on this point. >> ours would have to be repealed. we talked about that already. but in addition, judge freedman found that the constitution is for the hear 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.

and if the court was intending on telegraphing it works. 20-straight decisions where bands have been struck down. the constitution is for the here and now. >> sometimes the federal courts wait until there's little bit more of a majority states. so all you have are outliers. five or ten 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 nasent. this is a consensus born of 30 years of research on same-sex

parenting. 50 years of research on child development. and we learn from the state's own expert that the government in large universities have stopped funding in this area on this topic because of the social science consensus. the wait-and-see approach is not itself a rational basis. it's not even a reason at all. there's another invidious under inclues problem with the state's 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, 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 believes. religious conflict is not a basis for denying fundamental rights if and when the case is presented to this court alleging a religious conflict the court would have to balance competing constitutional rights the way it always has. again, mar bury versus madison requires the court to do. you would look at the 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 to the wonderful brief of the constitutional law professors that scrutiny would apply here based upon quasi suspect class. just briefly, we believe that equality foundation can be revisited by the panel. it does not require a decision because this was -- there's an inconsistent decision, equality foundation was, inconsistent with the supreme court that requires modification. the inconsistent decision we believe 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. so 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, you have some rebuttal? >> just a few quick points, your honor. our society has a mechanism for change. that's the amendment process. substantive due process is 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. the right process is not through the courts but through the people. for example, in maine, maine went one way in 2009 where the legislation passed a law recognizing same-sex marriage. people reversed course. so democracy -- >> can i ask, mr. lindstrom, do you have any idea how long it would have taken in the south? what a shock that was down there? >> well, loving, again, violated the equal protection clause itself because it violated -- it imposed invidious racial discrimination. the loving case talks about the fact that 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 the court also recognized, for example, in justice o'conner's, applying the same analysis to marriage. there's a difference between private conduct and public recognition when you think about the fundamental right that's at issue. this court has to look at the guide post the supreme court has recognized. and the reason for that, again, goes back to the importance of democracy in our system. this is something where the most basic right we have as a people is to decide public policy questions on your own and we can do that by amending the constitution, but it shouldn't be up to the courts to take these out of the hands of people. and it seems particularly interesting here where there does seem to be a particular trend that the political -- that society is moving in. so, it may -- this is one of the points and one of the descents in windsor, but it recognizes that the victory that is earned through the political process is a truer victory. and it deprives to -- the court deprives people of an honest

victory and honest defeat in the political process. 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. it says this is not an issue that people of goodwill, reasonable people of goodwill can disagree about. and i think this is an issue of reasonable people can disagree about, as you can tell by all the voters in the sixth circuit that have weighed in on this issue. >> okay. thank you, mr. lindstrom. we appreciate both of your sets of briefs and your oral arguments today. thank you. and the clerk may call the next case. now another court case on gay marriage. this one from ohio. a three-judge panel on the sixth circuit court of appeals heard oral argument in august on whether ohio has to recognize

gay marriages from other states. good afternoon. >> good afternoon. may it please the court, eric murphy for the interment department of health. these two ohio cases involve state recognition of is out of state same-sex marriage and in that respect they're distinct from the michigan case that was just argued which involves in-state licensing performance of same-sex marriages. but the fundamental question in all of these cases is the same, and that fundamental question is not whether ohio should recognize same-sex marriage, but who should make that important decision of public policy on behalf of the state. in rejecting the ohio voters' decision on this public policy issue, the district court ignored its place within the judicial hierarchy and our

constitutional democracy. i would like to begin with the baker point, because i think it's every bit as significant on this recognition case as it is on the michigan licensing case. in the prior discussion, the first circuit case of a.j. just versus massachusetts was discussed. in that case, i think that analysis has it exactly right where the 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 and right to licensing. because of that, they make the same approach with respect to baker as the other -- as the other cases have done, which is to say that 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 marriages was unprecedented. i don't think that's correct. the way the courts have gone about it is to distinguish it between that they call void and voidable marriages. and there is -- void marriages are just those marriages that violate what would be deemed a common law marriage. and so, they would not be recognized whether they were recognized by another state -- >> can you say that over again. a common law marriage, out of state would be considered void in ohio? >> so, no. it depends on -- so, the way the courts undertake the choice of law analysis is to say if the

out-of-state marriage is only voidable, then we'll recognize it here even if it is unlawful here. and that's the mazzolini case. that's the first cousin marriage case. but for other types of marriages, if the marriage would be deemed void, which the ohio courts would take to mean is not recognize common law essentially, then they wouldn't be recognized now. i would like the styles case, for instance, uncle niece case, that was an in-state ohio marriage granted it was a common law marriage, but the court established the rule that that was absolutely void and the court would not recognize it. and that 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 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, then you don't even get to substantive due process analysis and i think that's -- that is applicable here. the full faith and credit clause is the clause dealing with one state has to recognize another state's laws. and the plaintiffs have no argument with respect to the marriage license itself, that that would violate the full faith and credit clause instead they say there's some type of substantive due right to marriage recognition. the analogy we make in the briefs is to this court's brandenburg case it refused to engage in any substantive due process analysis free speech case.

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

sited in our brief where the court in song essentially said that these summary dismissals and regular opinions should have the same presidential value. and i think that means that summary dismissals every bit as regular opinions trigger the agestini and rodriguez rule. so i don't that agestini and rodriguez can be distinguished in the manner of these cases to suggest that that rule is only for regular decisions and not for -- >> aren't there some opinions that suggest if they don't hold that one of those summary dismissals, like this 11-word long one that we were talking about, might have some kind of binding effect on the court from which it came but not against the world? >> i don't think that's true. i think it has -- i think that -- 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 -- or, 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 know, 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. because 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. so 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.

and kowalski -- the u.s. supreme court's decision in 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 has -- 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 about -- where the transaction between the two parties is itself illegal. and in that case, the vendors could not sell beer to minors. >> if we -- there was no impediment to reaching these issues -- essentially the same issue in the tennessee and kentucky cases, then it starts to look insignificant. do you hear what i'm saying? in other words, either by upholding or invalidating, then what do we care about mr. grun in ohio? i mean, you would have a decision -- a ruled decision that would be binding in the sixth circuit and barring a meaningful distinction between the different state non-recognition laws wouldn't make a difference, would it?

>> so there's a difference between as a matter of precedent and matter of relief. the state would either depend on what the opinion would say, but either it have to attempt to distinguish the opinion or be bound by it. >> right. >> i don't know that that -- i think that standing still has to be within -- 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 some of these other sort of appeals decisions that they're measuring a trajectory. it does seem fair to say that the supreme court opinion

trajectory favors the plaintiffs, even if it is also equally fair to say that those cases don't compel an answer here, don't necessarily answer the question here but the trajectory does favor them. you know, it just does. from romer to lawrence to 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 this romer and windsor at least are just garden variety applications of the animus case. and i think judge 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 romer, 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 just 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 also just uniformity and having just one position on this fundamental issue such that the laws cannot be easy evaded. and so that uniformity rational

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

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

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

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

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

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

to tell when the first state to recognize marriage was in 2004. >> so what do you think the opinion in windsor it would have looked like if alito had been in majority and written the opinion? >> what do you think it would have looked like? >> what would he have said? >> well, he makes the distinction that he doesn't think that the federal governments decision with respect to section 3 was face basted on animus. so i think he would have distinguished rumor on that ground. but i do think that this is a different question. i think the main focus on windsor was the unusual nature of the federal intrusion into marriage, and that's simply not the case with respect to the state of ohio retaining its traditional definition of marriage. >> think about the methods by which states -- if we are interested in the federalism idea, when we think about the

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

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

history and practices of the people. and so i think that if you think that heightened scrutiny versus rational basis review actually makes the difference, i think the town of greece is a good indication that rational basis review is the appropriate test precisely because the traditional definition of america has been with this country since its founding. so with the last minute i will just briefly talk about the full faith and credit clause claim which is the last claim in the henry case. and i think the basic analogy there is full faith and credit clause claims are not cognizable under section 1983, because the clause is just like the supremacy clause. it's a choice of law rule that says when a state has a claim that you should look to the state of judgment preclusion law rather than the law of state where the suit is filed. so it's essentially a choice of law rule in the same way that the supremacy clause is a choice of law rule.

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

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

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

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

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

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

lines. so, that's a separate argument of the due process clause that there is a fundamental right to marriage recognition, that it's transportable. and then, you have another line which is windsor. which is equal protection. and that says, if you've got a really unusual situation like section 3 of doma, where for history, the federal government has always accepted the states that say, this is a marriage and the federal government says, okay we'll accept it as a marriage. and same-sex marriage couples are getting married, nope, we'll get into the business of defining marriage, that's an

unusual discrimination. it requires a special consideration. and when the court applied that test, not trying to put a label on it, but certainly working within equal protection, it said that that type of discrimination is a violation of equal protection, that it is a principle of purpose to impose inequality. so it wasn't about whether a

define marriage. it was about if you've got a pattern and practice over time that you're only changing because of the type of people that now participate in marriage or -- >> or the government that's doing it. >> well, justice kennedy, in his decision, clearly said that he was not doing this on a federalism basis. that he was -- and the state of celebration rule. so if you have always accepted first cousin marriages, underage marriages and common law marriages that you can't do in ohio, and now suddenly because of the people in these 20 states that are getting married, you say, oh, no, no, we're going to change the rules, that raises the bar. >> what is it, mazzolini the ohio supreme court decision? >> that is one of the cases. >> that's the first-cousin decision. >> that's right. >> the language of the decision, doesn't it indicate, well, yes, no the state doesn't have to recognize every marriage in

every other state. it's pretty clear. >> but if you go to our brief and look at all the sources that we site including sources that go way back, we can't find another case where ohio is refusing to recognize marriages from other states that, you know, otherwise couldn't be practiced in ohio. so, we really have -- >> there's only three cases the only case they cited was an in-state case. so we have a rule of law and it is one that ohio has followed. and then you have the added dimensions -- because when you look at windsor and you say, well, what was that special consideration that they entered into and how does that apply to ohio?

you can look to some other rational basis cases because what we're really learning is that rational basis doesn't have just one flavor. i mean, if you've got a group that's targeted because of a history of discrimination, if you've got important, personal interest at stake as in palmore or in griswald where you've got personal autonomy issues, if you've got a departure from an established past practice like romer, then those are all factors that, if we look at the case law, seem to suggest that we're going to look at things a little more closely. >> how do they apply here? you can't say this is unprecedented, right? because this is the definition that has existed since -- >> no. i'm not talking about the definition. i'm on my third prong. it is unprecedented that ohio would unilaterally say to a whole group of people who are

married in another state that we're not going to accept you as

people that we will recognize as people who are married here. >> how would you say it's unprecedented the ohio supreme court and it's the key decision you're relying on says, no, this doesn't mean you have to recognize every marriage even if it's against the state's public policy? married in another state that we're not going to accept you as people that we people who are married here. >> how would you say it's unprecedented the ohio supreme court and it's the key decision you're relying on says, no, this doesn't mean you have to recognize every marriage even if it's against the state's public policy? >> because ohio -- because it was theoretical. they were leaving open the back doo i don't think there's any doubt about that. i guess what i'm -- is not so obvious to me is a history of discrimination when it comes to access to marriage. that seems to me a much more recent phenomenon and just a reflection of the current times and a new sensitivity on both sides of the debate. >> well, what we really find is the state line, that's the point where if ever there was one the constitution requirement of -- >> the reason i think it cuts both ways is on the one hand it helps you in a sense you get -- maybe you're getting some tipping point where it's just

outlier states and the courts step in. on the other hand, it suggests the democratic process is working and indeed working effectively and very quickly from your client's perspective. that's what i mean when i say -- >> it's been 27 years since powers. so it's been a long process of development. but, you know, judge, what i'm suggesting is that the ultimate role of the federal court is to keep states from denying the liberty to certain citizens and here when you've got citizens who have a liberty interest, their marriage already exists, their marriage is done and they've now got children and those children deserve to have two parents and the state is now saying because of our commitment to democracy, we're just going to say no to you and we're just going to wait for you to come up with $7 million and reverse our constitutional amendment. and, you know, we'll see you in a few years when you can pull off that kind of fundraising and that kind of democratic action. the reality is that these rights

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

>> i get it. the assumption of the question is that you can have either one. that's the assumption of the question. it's not obvious why the supreme court ruling by five justices in june of 2015 is the better path for the community, not necessarily your clients, the community at large. changing hearts and minds happens through democracy much more effectively than it happens through court decisions. >> i understand, judge, but i represent four couples. their kids deserve two parents. they deserve them today and that's -- and they are entitled to those based on these notions of due process and equal protection. and especially when you look at the movement that's occurred, this is similar to the loving situation which, by the way, was a recognition case. i mean, that couple moved to d.c., got married, then 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, but the supreme court still struck down their prosecution. there were still 16 states that prohibited interracial marriage. >> that doesn't seem very helpful to your non-recognition point because that's not the analysis that the supreme court follows in loving. the analysis the supreme court follows in loving is not the fact that virginia wouldn't recognize a d.c. marriage. it was the fact that virginia wouldn't recognize for in-state or out-of-state couples interracial marriages. so that actual path suggests -- goes back to the first question i asked, which is, we really should start this inquiry from the perspective of whether the state in the first instance has authority to deny same-sex couples a marriage license. >> you know, even in windsor -- and by the way, those facts came from footnote 5 in loving. so they did consider it relevant.

but even in windsor, the supreme court makes a point to say that it assumes state recognition of marriage is consistent within the state. they say that twice in the majority opinion. what we're developing here is a second tier of marriages in ohio. opposite-sex couples that come in with various legal hiccups in their marriages from other states that ohio says, oh, never mind. and then same-sex couples that ohio says, no, you can't have your marriage recognized. and this does get us to the other aspect of equal protection and why special consideration should trigger an equal protection finding and a violation in this case. and that is the notion of animus. we've got in this record a remarkable collection of all the 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 becker declaration, it's exhibit q is the state's description of measure. this is published by secretary of state blackwell is still on the website. 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. so there's a real prejudice there. and this notion that the measure gave effect to the private prejudice against gays is one that bears some weight. and i would recommend to you that the amicus brief from the professor said -- >> i have a lot of sympathy for judge holmes, i think it is, on this point. the whole idea is to eliminate

otherness. it's not to create a new category of people we're going to label bigots. >> it's just like in an employment case where if i represent somebody and my client was fired because they wouldn't exceed to a customer's demand, then i don't have -- you know, 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 and the child was removed from a situation because the judge thought, oh, living in an interracial family, that creates too much tension. the judge didn't have any prejudice, but the judge was exceeding to the prejudice of others. and what the supreme court said was, don't let us pass laws that actually implement private prejudice of others.

so it isn't a finding that somebody is a bigot, it's a finding that the court -- that a law could get passed -- >> how is it a compliment to the people who passed this that they had animus? all the factors we ought to look at. in order to determine whether this measure targeting this narrow group of people, the same people targeted in windsor is constitutional. the text itself, by the way -- 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 approximates marriage. it's saying get away from us. as far as you can. and those are the types of things that the supreme court

looks at when it's even -- if we're doing rational basis. i won't use labels pp i'm just saying, these are the factors. they line up here to say, this deserves the same special consideration that the court gave the federal measure in windsor. when do you 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 now. was it appropriate before? i don't know. we weren't in this case before. i will say that now with half the country practically in a situation where they're going to want to bring their marriages across state lines and with those children in the balance -- i would say also, that we ought to think about the harm that we're dealing with in a situation like this.

the couples that are plaintiffs in this case, three of them were impregnated by artificial insemination. there's no need to go to state court and deal with fathers that are claiming rights. and under ohio law, if you are married and you use the process of artificial insemination, the father is deemed the parent of the child. so same rule should apply here. by the way, the implementation question is easily answered. just do a definition for all your 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 these 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 and ohio is saying no, we don't want that. we will let this kid only have one parent. but if you're an opposite sex kid, then you will have two parents. that's a super harm to these children. and that's part of why the matter is urgent, because as we get more and more couples with children as we have in this case, presenting themselves in ohio, we can't wait on the democratic process and suffer the harm at this level that they are suffering. both of those names need to be on the birth certificate. and that's very practical. windsor talked 11 separate times about the dignity that was owed to same-sex couples. and in that opinion, it said repeatedly over and over,

targeting these couples for this sort of second tier status, humiliating these children who are in these relationships causes the very purpose and -- the actual core of the statute is to treat them unequally and that's exactly what's happened in ohio. so we have both the same lack of dignity that was recognized in windsor and we have these very practical problems of children getting only half the parents. and they should get both parents. this report was correct when it said the birth certificate is the basic currency by which parents can freely exercise those protective parental rights on the parent side and responsibilities. it is the only common governmentally conferred uniformly recognized readily

accepted record that establishes identity, parentage and citizenship and it's required in an array of legal context. so in this case, what you see in ohio is harms that come from marriage recognition from cradle, as in the henry plaintiffs to grave, as in the obergefell plaintiffs. and everything in between. without recognition, these couples are denied lack of consortium in wrongful death. they are 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 for 42 years. three great kids. the law is rigged in my favor, because i get tax benefits, i get other benefits. and if -- it's fair in a sense to rig it in favor of marriage, because we pay our taxes. we buy our houses.

we buy stuff at the mall. we take care of our kids. we put less demands on the government. and same-sex couples deserve a piece of that. there's absolutely no reason to treat them unfairly with respect to this balance that the government has drawn with respect to favoring marriage. and it's important. and 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. and to be wrong -- i mean, talk about a dignity violation. i mean, that is absolutely huge. and i think it bears -- it's sobering, really. so each of the four children in the henry case have two parents. not one. and 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 ives and john arthur to reflect their marriages and allow those men to rest in peace. thank you. >> thank you. i think you have a few minute rebuttal. >> thank you, your honor. a few quick points. first with respect to the question about isn't this case entirely dependent on the outcome of the other case. i think that's exactly correct, how it comes out most likely explains how this case will come out. if michigan comes out upholding the traditional definition of marriage, i haven't heard any basis for having an exception for out of state recognition.

the first point that was made was substantive due process right. that was deeply rooted in recognizing out of state marriages. that doesn't take on the notion that you don't create due process rights when there's a source of commitment in the full credit cause. it ignores the equally longstanding -- >> but couldn't we say if we wanted to that ohio is perfectly free to refuse to recognize -- to refuse to issue -- refuse to recognize people who get into common law marriages within the state but then apparently allow somebody whose marriage is a common law marriage is considered valid in another state to come in and recognize that marriage? >> just -- it's a notion of what ohio's public policy is. there's no question that ohio would recognize some marriages that would not be lawful in ohio.

but i think ohio has always retained the exception for those marriages that violate public policy. it's public policy exception long predates this debate. there's no way you can say the exception is tied towards -- there's no deeply rooted notion to the exception. it's cited in cases. we cite state versus brown which talks about the exception. that's from the 1890s. with respect to windsor, i disagree that the federalism rationale played no part in the ruling. it wasn't a structural constitution case. it wasn't on the outcome. but the federalism rationale was the entire rationale for why there was animus there. the federal government engaged in an unusual intrusion. it was that unusual law that triggered the animus scrutiny.

you can't say that for these types of laws for the reasons i just suggested, that this public policy exception has been around in ohio for a long time and it certainly predates the present controversy. the public policy exception -- >> the public policy is not recognizing same-sex marriages. the content of which would possibly have been illegal and a crime in ohio for most of that time that you are talking about. >> well, that just goes to show that there's no deeply rooted right with respect to out of state recognition of same-sex marriage and then the third point i'd like to point out briefly is the citation to some of the record material in a quality foundation this court made quite clear that legislative motivations, especially in the referendum context are impossible to determine, precisely because it's a referendum.