sixth circuit court of appeals in cincinnati heard oral argument on the constitutionality of michigan's same-sex marriage ban. the court has yet to issue its 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 those states so its ban on same-sex marriage was not affected. of next on c-span3, the oral argument in the case on michigan's ban on gay marriage. >> good afternoon. may it please the court it is a fundamental premise of our democratic system that the people can be trusted to decide even divisive rfshs and that's what this case is b it gets to

decide what it is and who gets to decide on two issues and whether a district court can disregard a directly on point holding by the united states supreme court namely baker versus nation and whether term rights whether there will be a new right whether it should be done through the amendment process or courts on the due process doctrine. so there's common ground on this case, but the u.s. constitution doesn't directly address same-sex marriage, seems to turn to the subject of due process. the relevant test is is whether or not the right that's being asserted is objectively, deeply rooted in this nation's history and tradition. and implicit in the concept of liberty such that you can't conceive of liberty or justice without it and same-sex marriage does not have that necessary historical deep root. it's something -- >> what do you say about the fact that one could have said

the same thing about lawrence? >> well, with respect to lawrence, the lawrence court has not directly addressed it but something the court repeatedly applied, the analysis and recognize its continuing way they're supposed to analyze subsequent due process. both in the u.s. association case and repeatedly in lawrence, this court has continued to apply glucksburg has recognized that that's not the relevant standard. lawrence doesn't override or gluksburg or reverse all the cases before it, it takes the same test simply by not mentioning it, so this court is still bound by it and by this court's precedent applying gluksburg post-lawrence. >> what about baker, you mentioned that early on, it's not a very long opinion, i think you would acknowledge. a lot has happened since then, i think you would also acknowledge that.

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

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

which is, you know, a public recognition of something, it's not a right to privacy. so i think lawrence decided on a different subsequent due process ground, so it doesn't have anything to say about the fundamental right to marry. >> well, what about the loving case suggests that the policy and the laws against misogyni misogynist -- that went by theby. >> the loving case was primarily about the fact that there was racial discriminatiodiscriminata violation of the law with the supreme court in loving recognized the components of the 14'd amendment to end racial discriminate says. so the fact is racial discrimination -- >> what it was, was it not, the law across a huge swathe of southern states at the time. i mean, that was a vote by the people of many states against

the possibility of interracial marriage, and the language in loving says the right to choose whom to marry is a fundamental right. >> well, to the extent that there's an attempt to anall joust loving for same-sex marriage, the supreme court rejected that express analogy in the baker case, so just as a matter of what has the supreme court has previously done -- >> so what you want us to do is take an 11-word opinion and knock out all the efforts to, all the opinions that have come out involving same-sex marriage in the last 10 years, 11 years? >> it hasn't been that many. the first circuit, for example, recognized that they were bound by baker, but there were other courts who recognized they were bound by baker. that's just a question of judicial hierarchy. but with respect to the loving analogy, the supreme court -- if the supreme court wanted to

say that the freedom to choose whom to marry was not limited to someone of the opposite sex, when in baker they had the opportunity to do that and they didn't do that, that question was directly presented to them. so, that shows there's a difference between race, which does not go to the heart of what marriage is -- >> but you would have to concede that in terms of what the electric wanted, the loving decision went against what the electorate wanted in much of the south when it was announced. >> i think it did not. i mean, when you talk about what the electorate wanted, the electorate wanted the 14'd amendment to end racial discrimination. >> you might be interested in knowing as recently as 1978, the tennessee constitution provided, quote, the intermarriage of white persons with negros, mew lattas or persons of mixed blood descended from a negro to the third generation inclusive or their living together as man or wife in this state is prohibited. the legislature shall support

this section by appropriate legislation. in march of 1978, the tennessee electorate was asked to repeal that provision in the constitution, and they did so, but they did so by a margin of only 8,000 votes out of almost 500,000. >> i think these points show that the people did choose to end racial discrimination in the 14th amendment, but that just shows that people can make decent and rational decisions. it doesn't mean that the history and tradition of this court with respect to the issue here, which is same-sex marriage, i think if you look at windsor, it is very instructive, the historical analysis, section 3 of windsor talks about the history and tradition of marriage. and the history and tradition of same-sex marriage. with respect to same-sex

marriage it recognizes it was only in recent years that that was even deemed possible. >> that's true, but if we take this case to be about the right to marry and not the right to marry a person of the same sex, isn't what's going to happen around the country pretty clear, and what is happening pretty clear? >> if what you're saying is that there are there trends where people are changing the law -- >> what is the issue, is the issue the right to marry here, or are we dealing with the right to marry, or are we dealing with something like, oh, what were those cases, the right of inmates to marry, the right of deadbeat dads to marry, i think it was judith kaye that said fundamental rights are fundamental rights. simple as that. >> well, for example, if you're looki looking at whether there is deep historical roots within the definition of marriage the only people not behind in their child support payments with marry,

that's quite different from saying there is a deep and h historical root that only members of the opposite sex can mar i. those cases involve limitations that were not deeply rooted, they were not inherent to what marriage had been throughout the centuries and the supreme court recognized this when they were talking about is tri and tradition of the windsor opinion. the opinion said that the marriage between a man and a woman has for centuries been recognized as fundingmental. so the sfrkt was talking point fact that marriage has been defined between a man and a woman as fundamental to the definition of the term and so that was true to the definition of the role and function throughout the history of civilization. >> what do we do about, i think, the reality that the -- >> marriage is always about changes with social mores and maybe originally marriage was about encouraging procreation, channeling procreation possibilities, but, you know, modern conceptions of marriage are more about love, affection and commitment, and when you think of it that way, it does seem a little hard toer

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

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

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

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

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

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

aside the rational bases if there was a desire to arm, you might be able to tell that if there were no rational basis. but there is and instead the presumption should be what i started out with, the voters are decent and rational and if there's a plausible -- i mean, that's whats rational basis test is, if there's a conceivable basis, that's a reason to uphold the law. and this is a democracy promoting rule, it allows the people to make these decisions. remember, this is something that the people could decide to change tomorrow by amending the federal constitution. it's not that the court is the only recourse for creating new rights. in fact, the court shouldn't be creating new rights. the third rational basis i haven't brought up yet is the fact that there is uncertainty in this area, it's simply such a new thing that it's too early to tell. again, the plaintiffs' experts conceded trying to study children that are raised in a same-sex

household -- it's a needle in a haystack. there hasn't been a single comprehensive study that's been done of children rationally raised in a same-sex marriage. so a rational person might think -- even somebody who would vote in the future for a same-sex marriage, a rational person might think it's too early to tell, it's at least rational to wait and see, so there's a number of different rational bases. >> you were starting with fundamental rights and talking about rational basis review, if you get to strict scrutiny or intermediate scrutiny through one path or the other, would you concede the state has a problem? >> no, your honor, it would also depend on which an literal framework you got on intermediate scrutiny. first if it was intermediate scrutiny under the protection clause, setting aside the fact that this court has three precedents restricted from adopting sexual orientation, even if those weren't there

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

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

lawrence, so i wonder -- >> your honor, equality foundation opinion mentions bowers only when it's talking about prior history, and then it's based on romer. it was remanned in light of romer and its analysis is under romer so it doesn't rely on bauer. the analysis doesn't talk about bowers and, again, this court even after laurent has continued to apply the same -- >> i have to tell you, we are sometimes perfectly capable of blindly applying cases. i'm not sure i would be willing to say that we did in davis. but that has happened. >> so, you know, if you were to lose under either one possibility is there's a -- constitutional to same-sex marriage. another possibility is there's heightened review, which makes life very difficult for

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

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

population, as a whole. and it doesn't look like the sky has fallen in. >> i think the point is that it's too early to tell when you're changing such a fundamental bedrock of society, just ten year, that's not even a single generation of children so i don't think it could be possible to assess the outcome on children. >> i thought there was a lot of evidence offered at the trial in michigan that indicated, in fact, that the outcome on children was reasonably benign given what they know at this point. and i know you're going to say -- i see it coming -- it's too early to tell. classify classify >> i'm going to say that, i think that's a valid point, your honor. >> but then the people who tried to come in on your side of the trial and present all these terrible impacts that they said this would have, i mean, there was even a texas professor where they had a disclaimer on the university of texas website

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

>> well, fair enough, so i think the numbers are in ohio may be -- >> your red light is on. >> the dates of the last time the people in michigan voted was something like ten years ago. >> it was 2004. that's correct, your honor and that's the reason that the people could change their mind in the future. not a reason to stay it's unconstitutional. >> okay, your full rebuttal time. thank you. >> may it please the court, carole stanyar for the april deboer family. for 50 years the supreme court has recognized that the

freedom of personal choice in matters of marriage and family life are liberties protect # by due process. they have a constitutional right to raise a family. we though that no matter what scrutiny the court uses or no matter what doctrine they apply 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 the articulation of the right itself is the right to marry or what the state is calling same-sex marriage -- >> what about -- i mean, i realize that -- before windsor, the first and second circuit said that baker is binding, post-windsor, there's no majority recognizing that, but i have to say i find that a very serious issue, and the thing that's going on, oddly enough we treat these summary reversals or summary --

as a binding precedent no less than a fully written opinion. everyone understands that's true. there's language that judge daughtry pointed out,. it's not clear what hicks means because it then later says, follow this until we tell you otherwise, but then in -- american express and agostini, the court is pretty clear about saying even when you see one line of cases crumbling, you the lower courts aren't allow to infer anticipate pa torely overrule this other line of cases so i guess really as a matter of hierarchy aren't we stuck with baker? >> i don't think so. this is a one line summary affirm -- we believe that romer, windsor, lawrence constitute that dock tratrinal

development. >> when you said doctrinal development, is it fair to paraphrase that to mean reasoning that is inconsistent with other lines of development? isn't that what you mean by a doctrinal -- >> there's evolution of these concepts, evolution of due process concepts, evolution of equal pretekz in lawrence and in -- i think the court -- >> that is increasingly inconsistent with baker, that's your point, right? reasoning in other cases that seems somewhat inconsistent with baker. >> it's totally inconsistent with baker. >> okay, but isn't that agastini? isn't that -- >> what was going on? >> agastini is distinguishable, agastini was a full opinion that was -- that had written opinion, it had oral argument, it had a conclusion and the distinction between a summary affirmance in that type of situation is the fact that in a summary affirmance order you don't know what the

rationale for the court is, it's an 11-word order. you don't know what the court based its ruling on, and that's what's distinguishable in this types of rulings. >> i think that's why summary affirmances aren't biden binding on the court, the supreme court. that's why they're very casual about ignoring them but i didn't think that humrule applied to lr courts. >> the second circuit in league of women voters of nassau county explained that lower courts with be informed directly by an outright reversal aven earlier decision or indirectly by doctrinal developments, so they held or or what we would say is that here are 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, and every court in the country has, you know, ruled this way on baker. >> i wasn't sure on the first and second circuit before windsor. >> before windsor. >> right.

>> windsor is doctrinal document and probably the most that we have because it's a recognition of the same-sex marriage case, so it's the greatest, i would argue, doctrinal development case. >> lawrence and romer were doctrinal developments too, i mean 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 sixth circuit's review before windsor, and -- >> one of those cases was windsor itself. >> i understand that, the court in perry -- let me do it this way, the supreme court had this issue before it. there was a discussion on the record with i believe justice ginsburg 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 it didn't even talk about it 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 hollings worth and they decided there was a jurisdictional impediment to getting to the issue presented in that case. >> i understand. i understand what the court is saying. i think in this case the court can reach it because, you know, there's been doctrinal development. i guess we don't have anything bow beyond ha. >> i think i understand the argument. >> we are not asking to redesign the marriage relationship. we're only asking for same-sex couples for the right to marry. due process focuses on the attributes of rights itself -- >> when you're talking about getting that right, it requires state licensing. that's what your clients want, the state to license their relationship? >> that's correct, and the right

to marry, yes. >> okay, well, the import there is something different than what i thought you were talking about. you want them to recognize it and to license it by the -- 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 state cites gloksburg that the court make make a careful description of the fundamental right asserted but there's a long history defining it at a broader level of generate. loving versus virginia, turner vos sablocki. >> take the loving point. that's a eisenhower 6decision so in 1968 say a day caucasian man and a gay african-american man go to virginia to speak a license to marry, do you really think loving controls that case in 1968? >> well, i think the court by citing loving

in windsor thinks there's not much difference between sarge by a same-sex couple or interracial couple. the trend is certainly in that direction and i think the court -- >> that's different from saying what loving stands for. isn't the question to my question about what happens in 1968 pretty obvious because we had baker in '73. >> i think that lawrence -- excuse me, 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 we see it in windsor, and the court is saying that decades ago certain practices are accepted and now we understand more about these things and we now understand these are now going to be framed as discriminatory. we didn't know anything about same-sex couples back at the time of loving.

they were hiding because their conduct was criminalized. so i think, you know, to say that would this have -- that would the argument have held water back in 1967, it was a different time. >> what about -- i mean 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 the briefs that the most important thing is respecting dignity and having the state recognize these marriages the same way heterosexual marriages are recognized. and if respect and dignity are critical or the key elements here, i mean, maybe it's just something i'm missing. but i would have thought that the best way to get respect and dignity is through the democratic process, forcing one's neighbors, co-employees, friends, to recognize that these marriages or the status deserved

the same respect as the status in a heterosexual couple. so it's just funny to me why the democratic process which seems to be going pretty well, you know, 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. beech communications and there's plenty of reason to infer antipathy here. you have historic discrimination, persecution, criminalization of same-sex conduct throughout history. >> aren't you optimistic that michigan voters if another initiative were put in front of them, certainly it would be a different vote, and it might well be a different outcome today. >> the practicality is the michigan voters in order to get this before them, you have to come up with the signatures of

10% of the total number of voters in the last election. it's very cost prohibitive for a disfavored minority to be doing that but, secondly -- >> all to change hearts and minds which i have to believe is one of the key goals, isn't it worth the expense? i mean and don't you think you're more likely to change hearts and minds through the democratic process than a decision of five justices of the supreme court? >> fundamental constitutional rights may not be submitted to popular vote. they depend on the outcome of whole elections. that's barring that from the supreme court. more recently assuming you win, my question is assuming you can win on this, i'm asking you a question why do you want this route? i don't -- it's not 100% obvious to me why it's the better route. it may be the better route 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 at all obvious to me. >> i'm not at all optimistic we could get that in michigan but secondly the government made that same argue they said, just wait for the passage of the e.r.a. that was in 1973, we would still be waiting now, there's injury, the band brings injury here, marriage provides unparalleled social legal mutual reciprocal responsibility. dignity, it is a security. it is a status. it is stability. but the plaintiff's losses go well beyond the deprivation of the right to marry. michigan's laws are pervasively discriminatory to same-sex couples. they're destabilizing to these families. something i think all party as grow. april deboer is a legal stranger to her son and it also brings the loss of economic resources. we listed all those and the ban brings psychological injury and

we had dr. brzezinski explain no matter how devoted, how caring that second parent is from the child's perspective some will suffer from a relationship with that second parent. they added more in windsor, these bans humiliate children. they devalue same-sex couples in compare ton to their h heterosexual counterparts and the ban brings shame to these children. it's especially cruel to them. a nicu nurse taking in the babies left behind, premature infant struggling to live, 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 may be dispositive.

but do they suffice a rational basis review? >> under rational basis, we think the marriage amendment flunks under rational basis, and the test would be it requires a connection between the state's articulated purpose and the law itself. ands th and that's missing here. the ban as judge daughtry, 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 overinclusive or underinclusive, that's what the court means when it means impro s improvident des 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 rational basis review works. >> in a series of cases the court struck down laws outlying what the court calls invidious underinclusion striking down laws riddled with exceptions and suffering from that mystic classification that identifies reported state interests. >> those were unprecedented laws. windsor and roamer were unprecedented lawings and if there's one thing we know in this case, this definition for better or worse is not unprecedented. >> well, i think that -- to the extent that the court confers or consider this is a one-fact test now, let's just assume for purposes of argument that the test is whether it's unprecedented in the sense of never allowing -- never allowing same-sex couples

before. whether it's, you know, whether or not it fits the romer/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 say the dance verification brady beech communication. it matters that this was a constitutional amendment and i'll distinguish that in a moment. >> one of those, mergi is an age discrimination case, it's a very personal right, it's saying that police officers have to retire at age 50 and there's a correlation between age and physical fitness. of course, that's a ridiculous law in terms of over or underinclusiveness, because you

have 50-year-olds in triathlons. but the court still upheld the law and i'm sure it was deeply offensive 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 case. in jiminez, social security to some illegitimate children, not others. eisenstaedt, contraceptives to married but not unmarried persons, courts call that in rational basis review invidious underinclusion. in moreno, only hippies were denied food stamps. all of those were rational basis cases. the state talks about the robson case. johnson versus robson that the state only needs to show that the inclusion of the excluded group shows a further inclusion but the state is misriding that and 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 benefits but

veterans could not. the court ruled that the groups were not similarly situated in respect to those benefits. in klebor, it failed because the, quote, purported justification for the ordinance made no sense in how the law treated other similarly situated in important respects. and here this is the problem that we have with the biology of the rationale, michigan allows single, gay and lesbians to adopt. it allows donor sperm and artificial insemination so it doesn't further any of those ties. remember, cases are struck down under rational basis that are riddled with exceptions. so the ban doesn't logically fit that rationale. time procreation to marriage. again, another disconnect. people can marry without having children, and people can have children without being marrying.

inmates, infertile, they can all marry and 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 sterization. again thought a marriage case at all. the right to -- >> 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 cups from marrying. marriage gives them that already. so the ban doesn't do anything to take it away so this idea of accidental procreation, it's really a nonrationale because there's 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, procreate, courts cannot require procreation as a precondition to a constitutional right. the state is now arguing that the facts will matter. which is this a different argument than we faced in 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 issue. 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 from dig rigner. s 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 seems to me to be at the heart of this, at least in one way of looking at it. i saw a 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 a result of the concrete trumping the abstract, people knowing gay people, knowing they can have great relationships, be great parents and so forth. and what's a little odd to me about the plaintiff's positions in these cases is it doesn't show much tolerance for

democracy's sometimes being a little slower than we would like. i mean, we have 21 states including the district of columbia in one way or another now recognizing gay marriages. 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 issue two 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. >> but i mean a lot of the -- i think four of the states did this through initiatives. in other words, four of the states ruled -- came out the right way from their 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 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. and if the court was intending on telegraphing, it worked. 20 straight decisions where

bans have been struck down. so i think the constitution is for the here and now. >> sometimes the federal courts wait until there's a 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. or ten out lliers ands when supreme court steps in. >> i don't know about numbers but we are the fly over states, tennessee, michigan, texas and ohio. nothing is happening to help gay and lesbian people for decades. on the coast things have with worked and that's wonderful. >> 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. this is a consensus of 30 years of research on same-sex parenting. 50 years of research on child

development and we have learned from the state's own experts that the government in large universitys have stopped funding in this area because of the social science consensus. the wait and see approach is not a rational basis. it's not even a reason at all. another problem under inclusion, no under group in society has to pass the parenting competency test before getting married. some parents have low income or low education levels, parent who's marry, have children, get divorced want to marry again, there is no competency test for these parents but we don't bar them from marrying nor having children. an argument raises striking down

the ban intrusion on religious freedom. judgment will not can require changes for religious institutions. they are free to practice their rituals as they see fit. just like the tenth circuit, this court could specify no one can marry in contradiction to his or her religious belief. it is not a case for denying fundamental rights. if and when the case comes before this court the court would have so balance the constitutional rights it always has. you look at the higher arcy of rights and the level of intrusion and the court then renders a decision. we have also alleged that intermediate scrutiny applies because plaintiffs of gay and lesbian persons qualify for --

status. we refer to the wonderful brief of law professors that an intermittent scrutiny would apply here. just briefly we believe equality can be revisited by the panel. equality foundation had an inconconsistent decision with the streamline court. the inconsistent decision we believe could be either, the court has an -- has to apply the factor. didn't have to address really the standard of scrutiny because they zdecided on other grounds.

. >> the majority in lawrence referring to the due process clause wrote that they knew that, quote, time can blind us to certain truths and later generations can see that laws once thought necessary and proper serve in fact only to owe press" in our case we should remember over the course of history on occasion we as a society has lost our footing and our humanity and evan en eventu write ourselves. the constitution was written for all citizens for all time. it is simple, genius, dynamic, and humane. it must acknowledge a changing society. and recognize that some laws discriminate against the margin

alliesed, unpopular and in this case the most vulnerable members of our society. we know there is no reason to treat people this way. we ask you affirm. >> thank you. is there a rebuttal? >> just a few quick points, your honor. our society has a mechanism for change. there's an amendment process. at the state level there were six things on the ballot, six different measures. goes to the point of discussing

the dignity conferred by the state, going back to democracy. so if there's going to be change will be through the people. for example in maine it went one way in 2009 where legislation passed law recognizing same-sex and people rejected by 2012 and reversed course. >> can i ask if you have any idea how long it would have taken in the south, with loving versus virginia what a shock that was. >> loving violated the equal protection law itself. the loving case talks about that case -- white supremecy. >> you told me before,cy. >> you told me beforacy. >> you told me before -- there

hasn't been discrimination between gay and lesbian people because up until eleven years ago their conduct could land them in prison in many places. so 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 to share us in the hall outside their bedroom trying to find out what they were doing in privacy in their own homes. >> i think that is a question whether it is a right to marry or the right to same-sex marriage. i think windsor recognizes it is not deeply rooted. >> because the conduct of the basis of same-sex marriage was until 2003 potential criminal.

does that 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 so psunami of action that has occurred. ifs it was back in that position with michigan i thought we cleared it up. >> michigan occurred in 2004, that's correct, your honor, but again lawrence was about right to privacy. >> it was about the fact that that conduct could no longer be considered a crime. and it could no longer jeopardize somebody engaged in that conduct with the prospect of going to prison. >> that's true. but the court also recognized, for example, applying the same

analysis to marriage. when you think about fundamental rights being an issue, this court has to look at the guide post and the reason for that again goes back to the importance of dem democracy in our system. the system where most basic right we have as a them is to decide public policy questions on our own and we can do that by amending the constitution and take it out of the hands of the people. it seems particularly interesting here where there does seem to be a particular trend, quote unquote, that society is moving in. this is one of the points that recognizes that the victories of the political process is a truer victory and the courts have decided deprives people of an honest victory in the democratic process. so this is an issue left to the

states under the constitutional system and for the people to have continued to promote the idea that in general it is good for children to have both a mother and father. we would ask you to recommend the fact, decision, taking this out of people's hands under mines democracy, it says this is not an issue that reasonable people can disagree about. and i think this is an issue reasonable people can disagree about as you can tell about all the voters in the sixth circumstance utah has weighted in on this issue. >> thank you. we appreciate your arguments today, thank you. the court may call the next case. >> over the next few hours we will show you congressional hearings on professional and student athletics. up next house hearing from brain injuries from football, hockey and othe