information telecommunications, and medical knowledges. it is on the success of all of these projects that the quality of life of our people depend on. dear colleagues, everything that i have just been talking about, modernization, it is by no means an end in itself. it is nothing t a tool. a tool using which we will be able to solve lo standing problems in our economy and in the social area and to support those who need that support more than anyone else. and to create an environment in which the talents of those who we are pinning high hopes on, that is our children. our young people. afterall, modernization is being pursued for them before anybody else or anything else. and we should not be ashamed for what country we'll turn over to

our children and grandchildren. however, it is just as important in who's hands the future of russia will end up. 26 million children and teenagers who currently living in russia must be able to grow healthy, happy, and as full fledged individuals and to become decent and worthy citizens. this is priority number one for all of us. [applause] >> translator: thank you. taking care of the future generations is something that represents and has the most reliable, smart, and noble investments. a society where in real fact the rights of children are protect, and his or her personal dignity is respected. the society is more kind and humane, but also society can develop faster has a favorable and more predictable future ahead of it. i believe that what we need dramatically is an effective

government policy in thearea of childhood. a policythat would be modern, a policy that would meet the interest of national development. and that is exactly why in this address i will give the largest amount of attention to this subject. and i will dwell on what, in my view, requires new solutions and new approaches. first on how to improve the demographics. compared to 2005, russia has increased by 21%. this is among the best such indicators worldwide. infant fatality has dropped by a quarter. last year for the first time in 15 years, we were able t actually see an increase in the russian population. largely, this, of course, is the result of the workings of the so-called maternity capital, or

payments to the new mothers of the ntional project health and other measures of social support for families. we have sunk our teeth in the demographics problem in the most earnest way. we have to understand though, over the next 15 years, we'll still be living through the consequences of the democratic define in the 1990s. however, the number of woman who can still bear children will significantly reduce over the next 15 years. this is a serious threat, this is a challenge entire nation. what must be done? we have to make more accessible and of better quality both medical and social assistance for mothers and childrennd to develop the birth certificate program and treatment for children under three years of age for newly borns with small body weight. we also have to increase support for treating childlessness, including using invitro

semination techniques. we need to modernize children's outpatient and inpatient clinics to improve the training of the personnel. as soon as next year, significant sources will have to be channeled. at least 25% of the funds collectively allocated for modernization of the public health system will have to be used to build up the children's public health system. this is a great amount of money. in practical terms, it may amount to 100 billion rubles in the course of two years. today, almost 1/3 first graders have identifiable health issues. even worse is the stats when it comes to teenagers. 2/3 of teenagers have health issues. starting in 2011, i'm issues an instruction to conduct an in depth health checkups for teenagers.

especially importance needs to be given to vaccination, to accessibility for children and teenagers of high quality medical preparations and early diagnostics in them of tb, and other dangerous ailments. these purposes -- these programs also need to be adequately funded. the third and highly important question is that of support for new and large families. one of the most acute problems and it remains that way is housing. starting i 2008, the law has allowed to use the use of maternity capital to repay mortgages which has been signed up until december 31st, 2010. that is before -- that is without having to wait until the child turns three. this has been taken advantage of by almost 1/4 million of our citizens, whereas the housing market has been given an

incentive, has been given a boost. which is important in the postcrisis period. i believe that starting next year, this regulation has to become permanent. mr four, in expert opinion, the main path of overcoming the crisis is to increase the number of families that have three or more children. recently, i saw an interesting bit of information on the internet that concerned the all high territory where they were holds was an interesting social advertising campaign. it's a simple idea. but one that i think is very attractive. that is to tell the publicwhich of our famous russians happened to be born as child number three. among them are antoine, nicholas, and without the great individuals, withou their creativy, and without their achievements, this world would be a different place. humanities would be poor both

morally and in a clture -- and from the perspective of culture. therefore, i believe that large families the most favorite nation regime has set up in certn regions when a family has a third child. the decision has been made to provide to them free of charge a plot of land so that they can build a country house or primary residence. this is, i believe, is an appropriate measure and also example for other parts of the country to follow. i believe this practi should be rolled out nationwide. [applause] >> translator: i'm also instructing the government jointly with the regions to work through the procedue of providing free plots of land for the construction of the first residence for a second home when a family has a third or a next child. of course, this rule could be phased in on the gradual basis

given the specifics of the territories. in the region other forms of support for large family that can be takenadvantage of. in the liana region, a 1,000 google certificate is issued to new families when they have a third or fourth or separate child. i suggest all of the parts think the regional maternity capital. this measure, obviously will cost money. it depends on how he things are in specific parts of the restoration. but the results are worth it. number fie, there should be additional tax references. specifically, the tax should be 3,000 rubles a month for every family starting with child number three. i'm instructing the government to prepare the appropriate proposals and increase te tax deductions for all families with children while reducing the so-called standard deductions

which for the majority of the citizens of this cuntry have simply acquired a symbolic ture. number six, many foundations, the mass media are organizing direct collection of funds for children suffering from grave diseases. they are also individual businessman who without advertising themselves, which is especially important, or supporting orphanaging, and investing in childrens recreation and sports. we have been improving legislation on charity. however, the problems remain. for instance, a repeat charity action with respect to the child, even a child who's suffering from a grve disease is nevertheless includes in his or her parents taxable base. this is unfair. funds received to support children sent by charity organizations must be completely eliminated, removed from the taxable income. i am counting on this state to

pass an appropriate piece of legislation a.s.a.p. according to the applause, this is what is going to happen. mber seven, an issue that is extremely sensitive for new families that which concerns preschool establishments and kindergartens. wherever i go in this country, i'm almost always in meeting with local residents and asked this question. as of years beginning, a 1,0 -- 1,674,000 are signed p for kindergarten. often the parents put their list before the child is born. it's because there's not enough vacanciesthat young families delay having children or limit themselves just to one child. here's what i suggest needs to be done. a program, a nationwide program,

programs in every region should be established to rebui the old kindergartens or build new ones that would meet the modern requirements or provide appropriate premises for them. and such requirements must be both well grounded and feasible. i already said they should not be gratuitous. second, lternative force of preschool education to be given support. in particular, a system of nongovernment children establishments and family kindergartns and to consider reducing rent and establishing tax benefits on property tax for children who do not go to kindergartens, preschool groups in general education schools need to be established. dear colleagues, for two years now, we have been awarding the order parental glory. it's an order that was

established my initiative among those rewarded are fathers and mothers of biological and adoptive children. we take -- we chose to take pride in such families. i have to tell you that frankly even just talking to them makes me extremely happy. when they come here to the kremlin to be given their state awards. unfortunately, in this country, to this day, 130,000 children are parentless. they don't have parents, they don't have guardians, they don't have families. they are deprived of what is the main thing for them. family. and a great deal has to be done with the very notion ofuote abandoned children unque to become an an acronym. we must find foster families for

children. the must not be quote nobodies children unquote in the country. [applause] >> translator: a serious problem is the correctional orphanages. they work to isolate rather than to create them and make them part of society. that's why what is happening there is something that both the government authorities and civil society must keep an eye on. custodial awards need to be established at every orphanage at every correctinal facility and those custodial must work in an open manner. also we need programs and social adoptation to company those who go to orphanages and then graduated. it's not enough to educate and feed children. we have to bring them into the new adult life and prepare and have self-confidence.

this is not just something that teachers need to do and the local authorities. the local authorities, for instance, could pa for those who just left orphanages to undergo training within the system of secndary and higher professional education. our childhood policy is based on universal international standards, the declaration of the rights of children adopted by the u.n. assembly declares that the humanity must -- that humankind must give the children the best of what it has. whereas the childrens right convention has established the priority of the interest of children before the interest of society and the government. in 2009, under the president, the institute of the commissioner for the childrens rights was established. and his work is cut out for him. last year, there were flagrant violations of safety norms in children's summertime facilities which resulted in children

getting sick and sometimes dying. it's necessary to prevent the repetition of this. both local administration and supervisory authorities must in advance, now, start preparing for the next summer season. these are matters that have been to be the responsible for both the issues of children's rights, and there are those in already 58 regions of this country. by the way, i believe this institution could be established in virtually any contituent part of this country. about federation. horrendous problem is vilence against children. according to the official data of the minister of interior, in 2009, over 100,000 childrens and teenagers were victims of crimes. just think about this real hard. many facts turned inside out.

children, mostly orphans, children from families that are not doing well are being drgged into substance abuse, drug use, prostitution, and other criminal endeavors. and the jerks that are doing that must be punished in the harshest of manners. [applause] >> translator: last year we provided for harsher punishment for sex crimes against pre-age people. however, preventing such crime is just as important. i believe that once and for all, acss must be closed to educational etablishments to those who have ever been found guilty of any violent crime or dragged children or teenagers into crimina endeavors. such individuals should not be allowed to be close to children under any circumstances.

[applause] >> translator: an appropriate craft with editions to the labor code has been sbmitted to the state, and i hope will be passed before the years end. members of the council have took into consideration to take care of the life and child is the direct responsibility of his or her family. it's more heinous when violence occurs in the family. it is known that cruelty generates reciprocal. then they use it in their own lives, schools with armd forces, and in their own families. it's the duty of the entire society to create an atmosphere of intolerance towards any cruelty against children, to identify and cut short such occurrences. i note that in our region,

crisis center have been set up to provide assistance in case of family violence and such experience has been amassed in st. petersburg, and in the direct, and must be rolled out elsewhere in this country of ours. there's another problem that i cannot be silent about. we virtually don't have any infrastructure to support the lives of people with disabilities or grave diseases. there's no way to say how hard it is for school. it's torture to find a bus thas equipped to carry wheelchairs for childrenwith muscular skeletal symptom disorders is a problem. and navigating around buildings or offices n wheelchairs is often just impossible.

although i have to say that new houses that ae being built, already built to new standards. and yet i have to say that people with health problems and restrictions nevertheless achieve very high results in sports. of course, what our pair -- para lympics have achieved, creating full fledged environment for dsabled children must become a priority in implementing a new government program called an enabling environment. [applause] ! >> translator: raising the future generations is linked with the assistance of modernizing the education system. as part of our initiative, the standard of early school has

been renewed and centers for the high school has been changed as well. it's important that now in the middle of what is known as the teachers year, that new qualification requirements for teachers ave been published. in addition, teachers must be given opportunities to undergo advance training in the best schools and in the best educational establishments. in 2011, 2,000 rubles were dedicated. however, authorities must provide finance towards these purposes to school teachers have power that prime ministers can only dream of. that is what winston churchill said once. said this power must be targeted in a way as to opeup the talents and capabilities of every individual child and to prepare him or her to choose the profession.

that he orhe will have. and for this purpose, first and foremost during 2011 for every school, a project of the school of the future must be prepared. the vision of how school can develop. developing this project is, of course, something that teaches me to do both current and former pupils and the parents. but i believe the regional authorities could develop a mechanism for their implementation by engaging business entities if and when necessary, second. it is necessary to complete creating the national system for identifying and supporting talented children. it is important to be able to develop ones talent at an early age and everybody must have the opportunity, irrespective of where the children live. i'm instructing the government to take it into account as it produced new educational standards and to develop a rule for per capita financing for paragoge call and gifted

children. : teachers must know about th. raising children is soething that needs to be done by both

the educational system and culture and the society at large. we must create new qualitative -- qualitatively new and high quality films, movies, that will be of interest to modern children. let us remember what impact was made on entire generations by fascinating science fiction. we all read it th inspire children and urge them to fix thr own discoveries an entire generation grew on those sci-fi books. more attention has to be given to the patriotic education of the young people. yes, it is necessary after rejuvenate this effort by serious efforts by patriotic games, smart demand. they helped inculcate with strong character and teach skills that acquired the most complex conditions, and i would like to note the importance of the operations and that identify

the names of those who died during the war and in such expeditions young people in the or acquiring the skills and patriotism not patriotism for short, but genuine patriotism. i spoke to the government to deliberate the observations and to update the monuments and everything is great in the area but i believe all levels of government must be doing it, not ju on the anniversary year ke this one. number six, the strategic priority for the policy is to create and promote healthy lifestyle values. naturally this is not just concerned children. we must lead by example. elbridge entire society must get over infantile approaches when it comes to a halthy lifestyle.

without educating oneself, it is difficult to educate one's children. that is what was once said, in the meantime, 80% of the russians do not egage in any kind of a fitness or sport. we are talking about for a five people. also, this country suffers from one of the highest levels of tobacco smoking in the world, and people are taking a both tobacco and alcohol at an increasingly young age and those alcoholic beverages to those that come of age must remember that thewill be sanctioned, including the go to jail for committing a crime. [applause] i hope the support you just shown me that provides for the responsibility for such sales which is currently will soon

become law. the elimination to him on -- dependent what tional legacy's we need despite the unique features and the nature. today it is not in the best of shape and the problem can only be solved by setting up a modern and effective environmental conservation and management system. the following has to be done i the short term. the tradition of the territories must be delegated and this level must be seen as a benchmark, as a seline in order to implement programs to minimize the negative impact on the environment and the previous environmental damage. certain experts also believe that is necessary to conduct the so-called environmental amnesty provided that a company undertakes very harsh obligations as far as environmental rehabilitation of

producti and the territory which it is based on and affect spirit i believe this is a asonablend some idea, not just to repair those programs withhose that actually implementing such programs and investg money in such programs. they should not be harassed with fines which will make it difficult for them and the mechanisms should be taken full advantage of private estate partnership. also, the government must work out norms for the call the environment that might be specific attributes of the territories. this is the foundation for the activities of the national authority and the would be a very clear benchmark for the citizens and rtners from other countries. number three, crucial principle role in the protection of the environment must be played by the civil society. i have heard more than once that

environmental thinking does not take on, does not stick in this country because our society's aren't prepared for it. well, i guess perhaps tt is partially true. that is why as mentioned before how great importance is the role of environmntal the education and upbringing and that too must be taken into account and to do ucational standards. the environment must be one of the key indicators of the quality-of-life a one of the key indicators of the socio-economic of a limit of the territories an appropriately and must be seen as a criterium against which to judge the effectiveness of the work of local bodies of government and the heads of the editors of the federation are theby instructed to annually report on the status of the environment and their regions and of the population of those regions must be fully and completely reliable informed as far as the

non-governmental entities. those who are in real terms working to maintain the natural environment given the production and infrastructure must be engaged in a dialogue and acceptable solutions must be found by summing up this particular subject i would like to empathize childhood and the ten years the period of time when his or her future is defined. , people open things for themselves, when they are not of it for anything, the immigration, the design to something new, the audacity of thoughts. these are all things this country desperately needs right now and we are counting heavily on the energy and ambition of the young and on their wish to work jointly to gather for the goals stated.

members of council and federation, modernization creates a smart economy, but modernization requires a smart policy, one tt ensures condition for comprehensive rejuvenation of the life of society. what we need is nw standards in the operation of the government and the provision of public services, high quality of the work of the traditional and the law enforcement system and more interaction between the citizens in the developing of their communities and the greater impact on the activities of municipalities. for this i am proposing the following steps. first, we have to achieve transparency and simplicity in the every day relationship between the state and the citizen. and i repeat, every day relationship. understanding of the fact that bureaucrats serve the people, rather than determine the people's states is the foundation of the space system.

to the citizen, steve is a bureaucrat, a specific bureaucrat who has come to see, a judge who has passed a ruling and this is a case, a tax inspector or local policemen. anybody come any bureaucrat who is empowered to solve his problems, all as present in this room. the activity of -- activities of all officials such that must not disavow the state. their job is to improve the quality-of-life of people. the standard of living. we are optimizing the system of providing states. even today, many regions of the country without the fee leaving your house you can electronically file for new passport [inaudible] aunt that has already been accumulated conduct, to obtain a

driver's license. so part of the news is already in effect. although -- and i will not hide it because people are writing to be -- the way the system works is that something people still have a lot of problems with. it has to be me to work better. the remainder the rules will be effective this year. the most important of them is the principal of the one-stop window. people don't have to run around all kind of establishment and get the pieces of paper. asarents have to do, who have to take advantage of measures of support for their children that are provided for the law. it is necessary to legislatively and make idividuals who are officials responsible for violating the periods of time during which they are expected to provide government services, and i have instructed the government to provide such proposals within four weeks. second, modernizing the system of government of public service must be given to the public.

i believe that we should more accurately involved in the provision of such services, non-profit organizations often in the field are better than even the coeditors and experience and they are helping people who find themselves in difficult situations. i believe the involvement of the nonprofit organizations can make social services more specific and more targeted and what is more important, it will reduce the level of corruption in the big overnment. the federal agencies must come up with a clear and transparent system of selecting nonprofits for reforming such functions and selections should be made of organizations that have already -- that already have a good record and that enjoy -- that want trust among the public have been working for a number of years and who are based on organizations that have relevant experience. i am telling the government to finalize the legal framework for the involvement of the

noncommercial rganizations in the system of providing government social services and to use tenders to a greater extent in financing them. in every region, they're must be coherent program adopted to improve the climate and to create new highly productive jobs on the basis of the -called best regional office. such include the reduction of the period of time, which is taken up by the issues of crime is required to start a business to create preparing industrial sites and other measures. on the whole, we must encourage rather than discourage and support the regions that have been able to increase their own revenues. and to take this into account, as we distribute federal subsidies. however, even this is not enough. the government must prepare

proposals to change the current proportion of the distributional revenue between th different levels as the result of such measures the role f the regions and municipalities in solving ki socio-economic tasks must increase. the bulk of the responsibility for the future or a region that fits with the governor. how successful his or her work is will be based on how much investment he has been able to correct and how many new jobs especially in the commodities have been created. and the personnl decisions have to be related to that. number four, the bodies of government must get rid of property that is not directly linked to their direct conferences. always seems that there is no such thing as unnecessaryr excessive property. in fact, managing excess of property requires a lot of strength, come investment, and

everybody's here to know about that, a lot of funds which is the worst part. at because it often generates corruption. this year i ha signed a decree to reduce by 80% of the strategic companies. my instruction to government has come up with a large plan to privatize large companies. the main goal of the privatization is to incase the efficiency of the companies and to bring to the economy additional investments and serious investments, whereas the privatization proceeds will be used primarily to modernize this economy. appropriate decisions must be made the what the regional and local levels. the law n the general principles of organizing the bodies of of doherty of the constituent of the federation defines that property of the regional authorities can comprise property that is necessary for them to perform their functions and powers,

therefore, other facilities and other pieces of property must be privatized. bodies of government must not own plts, newspapers and ships. everybody must do what he or she decide to do. [applause] five, modernization will only provide the expected effect when the society has fair laws, and ferre laws they're actually working when the independent and respected courts and law enforcement agencies are functioning. those that in july true respect on the part of the citizens. all these links undoubtedly, of course all are linked among ourselves closely and the entire system of the reform of just individual institutions. that is why, along with developing the legislation of the judicial reform, which is something that we have been

doing and are doing, we are reforming the minister of the interior and the legislative level creating an environment in which to improve the qualy of the work of the investigive authorities and the prosecutor's office. to this progress, i have submitted to the state, to the draft legislation on the police and on the investigative committee of the federal and the regional and municipal leaders must prepare to effectively implement these new acts. indeed, they have a lot of new things, and not to hide in their offices and watch criminal operators increase their activities and feel like they can get away with anything in their territory. th must do everything to make sure that people who live in their territories are not worried about their own lives and the lives of their families are not afraid to lose their health, property and human dignity. recently unfortunately a number

of tragic events have taken result as which our citizens have come have been murdered. the of the reasons among others are the sloppiness of law enforcement authorities and the otr bodiesof government, and oftentimes, they're direct merger with criminal entities with regard to one such episode i have a decision to relief from his position the head of the department of the interior of the terriry, whereas if the general for the office, the efforts of the investigative committee have been instructed to make poposals regarding holding why of all individuals who worked in those individually areas of resnsibility that were supposed to ensure enforcement. number six, in my previous address, i talked about the need to improve the criminal

legislation, and that this legislation must be tough but at the same time modern and humane in the reasonable sense of the word, whereas restoring justice by way of the courtroom and for justice and the protection of the rights of the victims must not result in building up the criminal world with new blood. i will emphasize one more time, punishment for significant crimes to the extent this possible must not involve the provision of freedom. this is relevant in the situation when we talk about young people, teenagers, first offenders. today i will submit to the state which will enable the court to apply a differentiated approach in assigning punishment in a number of different trends the

lower limits of the sections will be eliminated and courts will have an opportunity to more broadly use such alternative measures of punishment as fines and community work. the main thing is the insistence of the lower limit of criminal sanctions of court should not see the upper limit as the only benchmark as the same punishment. the strength of the court is not as in the toughness of the punishment, but in the fact that punishment is irreversible and inevitable. whereas the mission of the justice is not just to punish, but also to rehabilitate. number seven, our crucial goal is to continue to fight corruption. i believe the decisions have already been madere being executed and to keep moving ahead. experience indicates that even 12 years, 12 years behind does

not seem to e enough to prevent people from giving bribes. on a number of occasions economic measures can be more productive, therefore the commercial bribery, the giving and the receipt of a lot can be punished wi fines in the amount of up to 100 times the amount. in fact, the kind of criminal behavior has occurred as mediation and bribery of other courts and other government bodies and the revenues it perfectly well there are a lot of scumbags who assure that they know how to take care of any particular court case and who and how much needto be given to take care of that business. i believe that bribery mediation as well as many fines re to be made part of the criminal law. number eight, another subject

th i would like to raise, i will not not demonize number 94 that everybody knows about. it has been criticized in a blanket ways to savethe situation has reached the work of what is reasonable, and the goal stated in the mall unfortunately to what extent have never gotten off paper. nontarget expenses including the direct effect kickbacks and misuse of funds amount to at least a thousand billion unfortunately, therefore we have to start working on a new edition of the law of government procurement. one that will be better fought through. [applause] i also believe that the plan

there must be a special internet web site that will preliminarily publish information that will have feedback opportunity for companies regarding their enforcement in the tenders and expert opinion about the extent to which such plans meet this requirement and are in sync with the current crisis situations, so the next three years the forecast plans for the procurement of the state of that equipment and medication and high-tech products on behalf of the government and large state-owned companies and subsequently and forecasting should be extended five to seven years in which case both investors and researchers will know exactly the product of the work will be in demand. for increasing deman of the year if technology can be accomplished for the modernization of the forces would you like it or not but in different periods of history

science and technology were pushed ahead specifically by the defense means and the government in the new technical solution in the area of defense. the recurrence is facing the fundamental goal of creating the new high-tech and what we are going to do is to spend over 20 trillion rubles owards those services. this is a lot of money and such investments will pay for themselves and be twice effective is thathe end of e day to give s the use of the technologies, thus helping us to modernize production and develop the fundamental and applied research and university research. that is why we are setting up a special entity whose job will be to identify and develop eaks of technologies for the defense industry. such entities are in other countries where many of them will find a use in everyday life

and most indicate to call the of life is the quality of the political system to improve it as the federal and the regional level in number of decisions have been made. as i stood up this very place back in 2008, i formulated to in potions and in 2009i formulated yet another ten positions which are involved in and purpose in the political system a democracy once again i would like to thank everybody who was involved in this discussing those initiatives and the members of the council of e federal. at the self-government we need additional steps to be made local, self-government, an important element and the majority is virtually nonexistent as the local level of all the parties are functioning on the little old

organizations and my proposals to make it mandatory to use proportionate to the electoral system after the elections of representatives bodies and in the municipal municipalities for the numbeof deputies at least 20. we set out to deeply modernize the forces. we have already updated the forces and the system of combat readiness and we also started conducting my regular basis war games. next year the special focus has to be given to boosting this aerospace defense of this country and of modern russia definitely and it also needs to shed goals and functions that should not be performing. also, we are not just building of ourrmed forces but to some of the national cooperation in the security area.

russia is prepared with the country to work on enhancing mechanisms of current directing recently at a russn major summit in lisbon i shared my consideration regarding the possle architecture of about a european abn system which would make use of the potentials of the north atlantic alliance and what put you up against missile strikes. our alternative is either we agree on an anti-missile defense and create a joint mechanism for the cooperation were a spiral of the arms race will begin and we will have to make a decision on deploying new strike capabilities. it is completely obvious that this latter scenario would be very brief. in lisbon the decisions were

made to build a modern partnership, a partnership based on the principles of indivisibility of security and mutual trust country's currency and predictability. we have determined how we will work and how we will work on the creation of a single spac of peace and security in the region. this gives of some cautious optimism if you will in the prospects of working on the russian initiative concerning a treaty. we have to build p economic diplomacy correlating its results with practical tcomes for modernization and the foreign policy must be expressed not only in missiles but also in specific and clearly understood achievements by citizens in the creation of russia are joint ventures and mentions of

high-quality inexpensive goods and the increase of number of jobs and i should say that this approach has understanding and our partners and i believe that we should work of a targeted manner with countries and companies that are prepared for th thinks to the professional interest we already are she made up modernization partnerships with germany and france, great potential in the building of inhibition component of the cooperation with china, india, brazil, republic of korea, singapore, italy, and several other countries in such partnerships will seek to accomplish the release of russia's technological modernization. the substantial reserve for reaching those goals i see an expanding the cooperation with the union and the united states

of america and the mechanisms of the russia u.s. partnership must be used to establish full still economic consolation and improve the investment climate and ensure interaction in the high-tech area. the agreement between russia and the european union partnership for the modernization and that is an idea that we formulated its ackley a year ago must work on. first, it involves the natural extension techlogy, harmonization of technical norms and regulations, practical assistance of the european union as far as russia's exception to the wto. second is a simplification of the visa regime with its complete elimination in the short term and third, considerable expansion of professional and academic changes. it is in this regard next week i

will engage our partners in brussels that of russia european union. extremely relevant is the task of the regionalintegration ad economic space of the asia-pacific. active use not being made of the potential particpation in the forum and other forms which takes place expanding the relationships between the countries in the region requiring the strategic character and that is something that is borne out by the example of the relationship with china and unprecedented level of cooperation projects partnership internationally and in turn is also helping increase the prestige and influence of such entities. serious reserve is available in terms of developing a long-term mutual beneficial cooperation with latin american and african nations of special priority

importance with what his course and our foreign policy the cis and thus es keogh entities that are operating. we have set up a customs union and are creating the only single economic space within the year of sector framework. we are flying out new integration schemes and at the end of the day we should work towards building a single economic space stretching from the arctic to the pacific that will take up the entire territory of eurasia. [applause] number eight, as it relies on the experience, technical and resources, russia can become the initiator of a global system of fighting merchants. effigy 20 summit i launched the initiative concerning the modernization efforts to

preserve the marine environment from oil spills. now we have to tackle our main goal, the ange of the best acticing in this area and prevention or liquidation of consequences of the oil spills. international ight to piracy must be made more energetic. we have lost initiative to the mechanism to try pilot. we believe it will help bring pilots to create responsibility. after all it is the fact that they can get away with it that remains as an incentive for them. i am expecting the foreign policy agency to come up with specific results of work in all these areas. defense. together we have to implement the plans that have no point

today. i have not the slightest doubt the world of great job at that. i would just add a few more words now, words that are normally not in official documents, but they could be the most important. we are rejuvenating this country. we are rejuvenating were society. we are changing our life, and we ourselves are changing. and everythin we are doing we are doing for those who are left more than anyone or anything else by our children. because we wanted them to live better than us. we want them to be better than us. we wanted them to be able todo things that perhaps we won't have time to do. so that out of their successes, a successful future of our great

russia will come together. i am positive that this, indeed, will be the case. [applause] ♪ ♪ ♪

♪ [applause] >> a live picture from the james r. browning courthouse in san francisco where this afternoon a three-judge panel on the ninth circuit court of appeal -- appealed will hear about same- sex marriage. during the november, 2000 elections, california voters approved proposition 8. it limited marriage to a man and

woman. the court will decide if i lower court was right in striking down the ban is unconstitutional. when it gets under way, the oral argument will be -- be divided into two two-hour sessions. during the first hour, the parties will address the standing in any other procedural matters that may properly be raised. the second hour will deal with the constitutionality of proposition 8. both parties will be given time to examine that point. we will have live coverage when proceedings get under way here on c-span. el a little later today, former new york times editor will join mark whitaker for a conversation on the changing nature of journalistic responsibility in the era of newt media. at 6:25 eastern, we will have it here on c-span. >> ever weekend on c-span 3, experts american history tv starting saturday at 8:00 a.m.

eastern. 48 hours of people and events telling the american story. here historic speeches by historic leaders and eyewitness accounts of events that shaped our nation. visit museums, historical sites, and college campuses as top history professors and leading historians delve into america's past grade american history tv, all weekend every weekend on cspan 3. >> i live picture again today from california's ninth circuit court of appeals as the court prepares to hear oral argument on proposition -- proposition 8. >> the two cases. please proceed. >> good morning, your honor and may it please the court, i and charles cooper and i represent the appellants in 10-1966-96

the appellate artificial proponents of proposition 8 and the official campaign committee. there are two jurisdictional issues before the court this morning. the first is whether this court has who restriction to review the merits of the decision striking down proposition 8 as unconstitutional and the second jurisdictional issue is whether they were able to join proposition 8 despite the fact that the complaint itself was brought forth by individual plaintiffs seeking relief on behalf of themselves without any claims on behalf of a class or any request for class certification. speaking to the standing issue,

your honor, the question is whether it the proponents has standing. mr. tyler will speak to that issue momentarily. with respect to proponents, we submit this issue is controlled by the supreme court's decision in carter vs. mackay. in that case the plaintiffs brought a first amendment challenge to a moment of silence law in the state of new jersey, 1983 suit. they sued the state's education officials and no one else. the attorney general in that case and the state and local education officials declined to defend the moment of silence of statutes. in the default of the official attendance, the court allowed the speaker of the assembly and

president of the senate on behalf of the legislature to represent the state's interest in defending its statutes. the supreme court rejected the claim that the speaker and the president of the senate were not proper parties defendant. they did not have standing. the reason they did was because the new jersey supreme court had previously in a case called for site allowed the legislative officers to intervene on behalf of the legislature to represent the state's interest in defending a statute in that case. that was a reduced the strength statute. >> was that before or after his arizona official that you just referred to? >> a departure -- the carture case? >> yes.

>> before. >> the court has never allowed article 3 sandlin? >> that is true. it could not have, but opponents in this case are really in precisely the same shoes as the legislative officers work in that case. because, your honor, under the law of the state of california, the proponents, in fact proponents of initiative measures are routinely and rarely allowed to intervene to defend the measures that they have proposed. >> but in state court proceedings? >> yes, your honor. what is your best case for

allowing for article measure standing in federal court on appeal? >> your honor, i do not have a case for allowing a proponent article 3 standing. i am here advocating that this case the one that allows opponents to just -- >> justice ginsberg said in an arizona case that she was not aware at any arizona case, which supported standing to the proponents. and did you believe there is a california case which enacted arizona law which may have included not only as statute but a supreme court ruling or may not? are you aware of any california law which states that the proponents do have standing? >> your honor, in fact the case

of strauss, which involve these very proponents being allowed to intervene to defend the live -- validity of this very proposition is directly on point and precisely analogous to the foresight case. >> strauss did not really talk about where you as proponents as agents of the case. strauss only talks about you as proponents as the agents of your proposition. we are in a different situation here. >> your honor, foresight itself talk about the legislative officers being allowed to intervene on behalf of the legislature in that case as of

the rise to represent the state's interest. >> let me ask you a little bit different question. there is no question the attorney general has a duty to defend all of the causes to which the state or any state officer is a party in his official capacity. did you ever seek an injunction or an order for anything suggesting that the attorney general said appear and appealed, and if in fact he did not appeal, allow you to appeal? >> we did not seek to enjoin or otherwise course through some additional measures to -- >> the attorney general has the power to do it in his official capacity or duty to defend all causes to which the state is a party, would not that have been

inappropriate way for you to have made sure of your ability to seek standing here? >> did someone do that? did someone there to the california supreme court and seek to appeal -- >> i believe you are correct. a lawsuit brought, but not one that my client was involved in. the suit was unsuccessful. and the point that i would make is that i have little doubt that in the forsythe case, referenced in karcher that the attorney general also had authority to defend the new jersey statute at issue and to take an appeal, but that attorney general declined to do that.

the new jersey attorney general declined to do that just as the california attorney general has declined to do it. and yet, in karcher the united states supreme court recognized that the legislative officers had the authority to not only intervene at the trial level and defend the moment of silence peaked statute but to notice and take appeal that there were parties not just in the trial court but also in the third circuit. again, i would urge the court that the law, the state law relied upon by the karcher court as demonstrating that the

legislative officers in that case had authority to represent the state's interest in defending s statutes was a new jersey supreme court decision, just like the california supreme court decision that we submit establishes the law on which we rely. that is the law involving these very proponents with the california supreme court allowed these proponents to intervene in the strongest case and defend the constitutionality. when no one else would do so. and all in the state defendants refuse to defend that statute.

or at least to challenge the constitutionality of that statute. the only party defending the constitutionality of the defendant across the board were these proponents. and the california supreme court denied intervention status to another group. a group that had been an active group involved in the campaign itself and sought to come in and intervene as well. in in the strauss case also at the court of appeals level -- it was not in the strongest case, it was in the marriage cases at the court of appeals level, the court of appeals denied intervention to a group that was not be official proponents, but

it stated that we make no ruling with respect to under our law the official proponents would be authorized in default of the state officials in lieu of state officials who have declined to defend would be authorized to come in and represent the state's interest in defending a state statute. to go one further question about that earlier discussion about whether anyone tried to get this court to appeal the attorney general. that was a a writ of mandate case. did the court say anything about that? >> per did me, i do not have the specific recollection of the court's ruling in that case.

>> better to say you do not know than to guess. -- four give me. and-- forgive me. >> we can certainly check that. there are two of you in this hour. and to go your designated only one of us would be eligible -- that was a wise decision. >[laughter] >> in light of that directive and the fact that i am at the podium first, i would like to reserve the balance of my time, which is just a couple of minutes for rare bottle. >> certainly. >> thank you.

>> sorry for the delay. may it please the court, my name is robert tyler. the plaintiffs think that justice is served where appellate review is frustrated in this case, where the state depended circumvent any evidence to state law that they are politically opposed to. >> i think they're talking about procedural rules. >> yes, your honor. >> why don't you start by telling us where dolores is. >> could you tell us where delores is? you know who she is. she is the clark. >> she is not our clients. i cannot speak on her behalf. the fact is that the deputy clerk is a commissioned officer.

in she is under the government code for a civil commissioner for marriage. and she is all the same responsibilities. >> is there anything in the record to suggest that she is acting with the cleric's authority? >> the answer is no, isn't it? >> there is nothing that shows the clerk has designated her. we have visited bridgette we have a designation from the supervisor. we have the declaration of mr. vargas -- miss vargas that said she has these responsibilities. the court is to assume the facts to be true. >> what facts can we assume about the fact that there is nothing in their record to indicate that your clients, as any authority whatsoever to

attend to intervene in the litigation? >> in her declaration she says she has responsibility. >> you are repeating yourself now. there is nothing in the record to indicate she is acting on the authority of the clerk, correct? >> that is correct, -- >> is the clerk elected or appointed -- appointed? to go she is appointed. takeshi is appointed by the board of supervisors. in this particular case what is important is the fact that the official duties of an officer are altered as a result of the outcome of the case. >> it seems to me that if we read 1922 case of california and says all political functions of an office remain vested in the

county of an officer. who would continue to exercise them himself when present and an absence they would only be exercised by the deputy in the name of a war as an act of the principal. so i guess i am again worried that this clerk can only act as an agent of the principal and if the clerk is not here, we have our problem. >> i would disagree because the cases -- >> you disagree with [inaudible] ? >> i disagree that --- >> their ability to act is what we are really about here. given foult, which was about

what deputies may do or given sauder vs sikqe county, and both of those cases this against they are only mere agents of the principal. >> your honor, i understand, but the fact is that this is a government position. this is a person that has duties that are designated by the california family law code. designated by the california health and safety code. these are acts that this person is carrying out. as a result, her duties will be altered. she is an joined by the court's injunction. she is -- >> is it your position she is found by the junction? >> yes, your honor. i thought your brief said to the contrary? take up the fact is that judge

walker's order finds her. the order says that all persons under the control and authority are to state registerear be bound. judge walker in its denial the intervention said that all county clerks are subordinates were under the supervision and have nord authority to disregard state officers. >> i thought she was an independent officer? >> we believe that is correct. and the fact of the matter is that judge walker issued an order -- >> that is a different question. whether shue was found in that capacity as supportive of the register and that may lead you to a different theory.

that may give her some ground to complain that she is bound or in risk of being bound. but as far as actually being bound, the marriage capacity, as far as i understand she is an independent office sent with duties that is set forth in the code and not subordinate to the registrar. is that correct? >> that is right. and >> the fact that we believe to determine the statutory requirements, to turn -- determine whether they are satisfied when an applicant becomes before her, she comes under the board of supervisors. >> let me ask you about a question about that.

are you suggesting that clerks are state officers? >> your honor, they are statutory officers. >> are they stayed officers performing state functions qwest >> no, your honor. they are local. i believe they are local officers. they are individuals that are statutory recreated under the government. it had you get around the fact that they are state officers and the duty they undertake. they do come because they are performing estate function and that is the issuance of a marriage license, which is a state concern. >> your honor, i would can see. i am not sure what this case turns on. whether it turns on is whether or not her capacity at the local duties willher her judy'

be altered as a result of this case. >> if you are insisting upon that, let me turn to language in wall. it says it however the controlling role of wall requires an official to carry out a ministerial duty dictated by statute, unless and until the statute has been judicially determined to be unconstitutional, it follows that such an additional cannot a court rule on the constitutionality of the issue. >> , your honor -- >> that is the language. >> you are right. in that situation this city and county of san francisco is attempting to violate the law. the county of imperial stand

here today is seeking to uphold the law. it >> i understand klerk is not attempting to get the court to make a ruling. the court attempted to make the clerk perform the duty. what year was four offices circumstance. -- lockeyear was up for different circumstances. >> if the clerks are state officers and cannot compel the court to rule and the attorney general has the duty to defend those officers, then why would the clerics have standing separate from the attorney general? >> your honor, let me refer you to a case, richardson vs. trimeris. and that case there were three clerks who were sued and the secretary of state in regard to

registration of felons for purposes of voting. in that case the mendocino county clerk had the ability to take this case and defend where there were no other defenders. that is what is so important about this case, there is not a single governmental defender defending this action. here we have a governmental defender who is willing to come to this court and wants to ensure that they are not placed and illegally conflicted position that is the outcome of the incentive order. >> suppose it's set in every case in which first-degree murder is charged, the prosecutor shall seek the death penalty. and the deputy county attorney and imperial county attorney did not want to seek the death penalty. could they challenge the constitutionality from the

provision? >> the deputy in their individual capacity could file an action and to challenge it in state law. they could not on their own decide to violate their law, which is exactly what happened. >> supports the u.s. district court held the proposition unconstitutional and a deputy county attorney and who wanted to seek the death penalty in every first-degree murder case sought to intervene, would they have ed? >> i believe the deputy attorney what havould have -- the state code provision that authorizes the deputy prosecutors to perform those duties the same as the district attorney of the county? >> your honor, and our

particular case, ms. vargas has the same responsibilities. >> under the code she is given the same duties as the clerk. >> she has the same responsibilities. she has stated that in her declaration. >> do you know the deputy prosecutor has the same duties as the county attorney? >> [inaudible] >> why don't you say you do not know the answer? >> i do not know the answer, but that case does not turn on it. and >> when you're asked a question and do not know the answer, say so. >> to county clerks were named in this lawsuit. -- two county clerks were named in this lawsuit. and they both responded saying they did not want to defend the proposition where they were

comfortable with their ruling that said it was unconstitutional. am i correct so far? >> that is correct. >> could a deputy clerk come in and see expanding saying i do not agree with my boss? >> your honor, i believe they should have the ability, if they have official duties -- >> how long do you think it would last taking that action? [laughter] >> precisely the problem and may be why we do not have any other governmental defenders coming to the court. when we have the county of imperial and the court saying i performed the its responsibilities on a day-to-day basis -- >> we have a deputy clerk. but us not forget that. we are left at complete mystery to let us know why the clerk is not before us. >> again, i do not speak for the

clark herself. if she wanted to prohibit the deputy clerk from being involved in this case, she could have -- >> we just do not know. >> i do not believe that is an issue that this case should be decided upon, whether or not she is involved or not. >> it is an issue that concerns some of us on the panel. >> i can understand that, your honor. and to go we're wondering why there is not a single sentence in her affidavit saying she is acting on the authority of the clerk. >> your honor -- >> issue with the board of supervisors on this case? -- is she joined with the board of supervisors on this case? >> yes. i was mistaken. the clerk is elected. as my time is coming to a close, if i may just conclude --

>> let me ask you one more question about this. i read a california case that suggests that the attorney general is the only person to whom authority given by the law to appear for the people, it may delegate the authority to appear. in that case did. did you ask the attorney authority tothe appear? >> we did not appear y. we are appearing on behalf of the county and county clerk who had direct responsibilities to issue a marriage licenses. just like the county clerk in every other marriage case that has been brought before the curtain. it is the county clerk's that are sued. the outcome of this case will alter my clients official duties. and ms. vargas is bound by an injunctive order that has placed her in a legally consenting

position. does she comply with the california constitution or comply with judge walker's order? the cases are clear that that gives hurt not only our right to intervene, a standing in this case. to go deadlock percent your client was found by the injunction -- >> jusdge walker said your client was found by the injunction? >> we're taking other people's time. yes or no did judge walker said your client was found by the injunction? >> no, but he did so through two different orders in my opinion. he did so by saying that in the denial of intervention our client is subordinate to the state registrar and stating that ms. vargas had no authority to disregard.

we do believe that there is in error, but my client is therefore bound by the injection. >> thank you. mr. cooper. and i am sorry. >> mena please the court, my name is david boyce. we represent the plaintiffs. let me begin by interim one of the court's questions with respect to the effort to get a mandate requiring the attorney general to appeal. that was simply a one-sentence denial. the court did not provide any further analysis. i also would like to just be certain their record is clear that permanent injunction that was issued by judge walker relates only to the official defendants, and persons under the control or supervision of

those defendants. >> sewed judge walker was wrong about the register -- so if judge walker was wrong, and she is not bound by the injunction, correct? did a that is correct. >> if she is not bound by the injunction, how does she have standing? >> we do not believe she does. we believe the decision makes absolutely clear that individuals like mr. argus, even if she were the actual clerk, which he obviously is not, would not have standing. -- individuals like ms. vargas, even issue with actual clerk, which she obviously is not, would not have standing. >> what about clerks? day klerk's issued the licenses. are they found by the injunction? >> they're not directly bound by the injunction. >> how are they found but not

directly? >> marriage is a statewide concern, not a local ordinance of all concerned. and the forums in their roles come from the states to the locality. >> if our state was lifted and the injunction was in force, could the county clerk in san diego county refuse a marriage license to a same-sex couple? >> she could without violating this injunction, however, if she did so, then the attorney general would as they did and locklier act to make it uniform. >> what would happen is no one is bound by the injunction other than the two counties. if they want to enforce the court order that have to go to state court, which would be free

to determine the issue of scargy marriage again. is that right? >> yes, and no, your honor. that is right with respect to the counties. with respect to the remainder of the states, under its california state law, article 5 sections 1 and 13 give the power to execute the laws and enforce laws to the governor and attorney general. is it, since the invention does run not only to the counties, but to the governor and the attorney general in their official capacities as well, those individuals would have responsibility for making the law uniform. >> what does ms. vargas do? is she supposed to run the risk of contempt? her lawyer is sitting here today. i suppose after this proceeding

is over he will go over and tell her that in the opinion of the plaintiff's counsel that she is not bound by the injunction. what is she supposed to do? >> if the curve. a court work to a form -- if the court were to confirm that the thingst below, thean two would happen. the state defendants, the attorney general and governor, would move to try to make uniform the law within california. and to go where will you move this? >> they will move in the state courts just like they did and locklier.in >> and we're back to where we started. the attorney general can move to a state court and we do not know what the state court will do.

in >> no, i think we do know what the state court will do because and lock clear, what the state supreme court held was that the county clerks were just ministerial officials and they had to apply the law as set forth by the attorney general and by the governor. what you would find is that that is an enforcement proceeding. and i do not believe it would be necessary. >> the attorney general could have stepped this whole proceeding? day is it that we find a proposition to be unconstitutional and you go and forced it because we have decided that? >> not exactly, your honor. and what happened was that we have the trial before judge

walker. after the trial he enjoined the governor and the attorney general. all of the defendants. and it >> that phrase was the make of all defendants was chosen by plaintiffs' counsel and you chose to name only as danita and los angeles clerics. >> that is exactly right. we proceeded exactly as >> that was a no-win tactical choice? -- >> that was a knowing tactical choice? >> just as the locklier case

was not a class action were the california attorney general proceeded against the county of san francisco -- >> i do not understand your answer, other than that as of now, no one is found in except for the clerks in los angeles and alameda hi. >> no other clerks are directly bounds. but because all of the county clerks are ministerial officials who simply issue marriage licenses to whoever the state determines is entitled to marriage licenses, that is simply a ministerial function. that function is the same before or after this court's decision.

>> if the attorney general consult the clerks with a lot is or the governor can, you did not need this case at all. >> an absence of the case the attorney general would not have told -- >> i think at least the attorney general would have told them that. and [laughter] i think he made it pretty clear. and i think the attorney general would have liked to uphold a match, but an absence of a judicial determination that that was the law, i do not think the attorney general would have. both the attorney general and the governor have a continue to enforce this law while this case has been proceeding. and that is the score stayed the district court decision, but they could have based on the district court decision, tried to change what in california. they have not done that.

>> let me ask you a question about that. it is my understanding that these particular initiatives could not have been vetoed by the governor. correct? >> yes, sir. >> it is also my understanding that the legislation could not amend them unless approved by the voters? to god that is correct, your honor. >> if that is so, i guess my problem is that in fact become a nurse actions and the attorney general's actions had essentially nullified the considerable efforts that were made on behalf of the initiative to be placed on the ballot and obtain passage. >> i would disagree with you for the following reasons. >> they do not appeal and therefore no one can appeal. had they effectively nullify the

effects? >> is only in the sense that in every standing case that if an official does not appear in its molokai's its. >> and answer is yes. >> honest answer is yes, because what we have is an attorney general and governor with no ability to notify axe of the people and then by just not appealing, they in fact do it. what they do is they do not appeal the federal district court decision after the trial. that is exactly the same thing that happened and diamond against charles. >> my worry is that by suggesting they will not appeal,

are they really suggesting they are not willing to enforce the initiative? >> >> you are suggesting that they need to do at the present, but have said i'd give up, i do not care. it is over. and i am not going to enforce. >> what i suggest to you is that that is true in every standing case. and every time the united states supreme court decides as they did in diamond against charles that because of who the state of illinois officials have decided not to continue to defend after the initial story -- her initial -- after the initial -- >> what did they do in this

case? >> in this case they did not actively defend. the people are supposed to be able to elect to pass a proposition unless it is unconstitutional. no officials will defend an issue that does not seem to be consistent with the initial system or the people are allowed to pass a measure and it is the state -- and if the state does not defend its, it is costing in the towel. >> with respect, i think there is a different issue as to who has standing to appeal. >> i know that, of what i am asking you isn't this contrary to a system where the government is not allowed to veto this

measure but he can an effective veto it if he and the attorney general will not defend it? justice ginsburg's speak to this in the arizona case? >> we were on the wrong side. >> i thought it was the right side. [laughter] >> ultimately the arizona supreme court ruled the same weight. he made that argument, and i thought it was a strong and engaging argument, but justice in spurts and not think a lot of its. >> i think that is exactly right. -- he made that argument, and i thought that was a strong and engaging arguments, but justice ginsburg did not think a lot of the. >> my worry is not necessarily to the standing, but to another

issue which is pretty vital to you in the fact that they will not offend or will not even appeal to let those who would defend the initiative argue. and are they in fact not enforcing the statute? >> your honor, i do not think so. and i think that is a question of california state law in any event. that is not something that affects the jurisdiction of the scourge. >> do i have any california law directly on point? -- that is not something that affects the jurisdiction of this court. the only case, your honor, that i would ask you to look at in that respect would be the lock lier case, which referred to before. >> at the california law is not

clear -- if the california law is not clear in does not have precedence specifically authorized the proponents and with what justice ginsberg said what she did not find any arizona law that authorized it, why shouldn't we asked the california supreme court whatsits the law is in california? >> i believe that if this court believes it is unclear what the law is, that would be inappropriate approach. however, i would urge you that took based on what both the california appellate courts and the california supreme court said in a proposition 22 litigation, that it is clear that whenever the intervention rights may be, they do not have standing. >> the purpose and its to not

have standing. for example, in the proposition 22 case, the son of and that was involved -- the fund that was involved, they were put forth as proponents -- >> that does not pull the court. i do not know was strictly a man's. they were not the proponents. >> they claimed to be the proponents. >> but they were not. >> one board member was on both. >> i do not see what we would have to lose by asking the california supreme court to certify the question and they can tell us very quickly if they would like. >> i think if you concluded that it was unclear and concluded that that would in fact provide article 3 standing, that would

be the appropriate approach. i would urge the court that while that kind of authorization is a necessary condition, it is not a sufficient condition for article 3 standing in any event. >> why, given what justice ginsburg said about the arizona initiative that what she wanted to know was whether under the arizona law krona would have standing? in fact, i think they even asked the proponents to supply them with the arizona law. why do you't -- think that would not be enough? >> in her opinion, after stating that in karcher state legislatures were given authority, she said however,

these proponents are not elected officials, and this court has never recognized proponents. and she goes on to say that under arizona law, they are not authorized to act, but she does not address what would happen if there had been authorization. for example, the united states supreme court in rains verses burke, you had an explicit authorization from members accord to come in and challenge the constitutionality ever to give their line item be duveto statute. that is not sufficient to give article 3 standing, even if california work to intervene, and even if they were permit promise to have standing, that would not, in our view, article 3 standing -- provide article 3

standing. >> if that has not been decided by a california supreme court and the supreme court whether than kill an initiative by the voters have passed, would it be advisable to attempt to get a legal answer to this question of for saying -- before saying we're going to let the district judge make a final decision without finding out from the california supreme court in the united states supreme court whether it is standing and then we can reach the merits. would that be advisable? >> i would suggest that because it is so clear that in order to have an ability to invoke the jurisdiction of this court, the appellate must have a personal

concrete's, in particular is injury, and they do not. there is nothing that the california courts could say that with regard article 3 -- which provide article 3 constitutional standing. it does not make any difference whether or not the california law or anybody else tries to get these people standing. under the federal constitution, the case and controversy, they do not have standing unless they have a personal, concrete, and its allies injury. the united states supreme court has held that over and over again. the in the state supreme court said even members of congress, even if they are acting pursuant to a grant of jurisdiction by the congress of the united states do not have thought article 3 standing because they do not have that personal interests. >> if zooey did certified this

decision to the california supreme court and they came back said reading the callous touche -- the constitution of california together, we do not think it is our part. but the governor and attorney general can veto a proposition, therefore we think under california law that is appropriate for opponents of proposition to stand in when they refused comment that even if the california supreme court said what i just described, you would be back here arguing what you just argued? >> we would, your honor. i would say that if the california supreme c court believes in order to save the initiative and have to be defended, the way for it to of done that would be to grant the mandate requiring the attorney general to come in and do so. they did not do so.

these analysts and not even ask them to do so. >> let me move to another question. proponents did note even do so. >> do we have any authority to address the scope of the injunction? >> i did not believe so, your honor. >> you are suggesting there is no authority anyplace which would allow us to determine the scope of the injunction? concluded thatt the scope of the injunction was somehow beyond the subject matter jurisdiction of the court below, then i am not prepared to say that the court does not have the power to respond to do

something about it. but i do not believe there is any precedent that i am aware of for that. >> you are saying in any event that the scope of the injunction is quite limited. >> it is. you are counting on the attorney general to go to state court and have state court expand and the injunction to the other counties. >> i would not put it exactly that way. >> it may not be the best legal terms, but it is the practical-- >> the practical terms is we do have to depend on the governor and the attorney general. >> you're lucky the election came out the way it did. [laughter] >> suppose we were to agree with the position that you just take would ms. vargas be able to

declare its position on whether this finds her or other county clerks? >> i believe that she could do that, your honor. i believe she could do that. >> if the court determined that she was found by the injunction, what would happen then? >> then she could have an appeal and she could have standing in that situation. the courtk that' below what interpret its injunction as applying only to pass the defendants in that case. she would not be bound to directly bounds. take up that is what you would

argue? -- >> that is what you would argue and debate agreed, she would be free to refuse a marriage license to same-sex couples? >> shue would to the extent that the attorney general and governor of california moved, as i believe that obligation to under the california constitution, to make marriage laws uniform throughout the state and abide by the injunction that has been issued against them in the case below. >> why not bring all of these issues together and decide them right here? so that it is clear in california who has the right to marry into does not and what what clerks are supposed to do when same-sex couples asked for the issuance of a marriage license? >> your honor, that was exactly

the situation that was addressed by the united states supreme court. and when the court said we must put aside the natural urge to proceed directly to the merits of this import disputes and sublet for the sake of convenience and efficiency. and what the court said is that constitutional standing serves as so many important purposes that it is not open to the courts to simply say let's get it all together and settle it now, that is the most efficient way to do with. there are important constitutional and policy reasons that underlie the standing requirements. where it is clear, and i respectfully suggest to the court, it is crystal clear in this case. >> it is hard to believe that you deliberately only wanted to

get a judgment in alameda and los angeles and did not want to get a judgment -- this judge's ruling applies throughout the state. for get that. it is hard for me to believe that a lawyer with your ability and whatever else you have -- [laughter] nevertheless, it is hard for me to believe that. let me ask you one other question. this marriage system we have in california is an integrated system. as you say, the state is supposed to give the court order spirit anrs. they all act in concert to get people married. it takes a lot of people to do this. they are all acting together. doesn't the injunction brunn to all of those that are acting in

concert to perform, give this marriage done between two people? those people covered by the injunction? >> the injunction itself did not go as broad as that might have under rule 65. the injunction at self-help is directed to the defendants and their official capacities and all persons under the control or supervision of defendants. and that is the limitation of the injunction that was actually entered. and now, one of the defendants that we have not mentioned is the registrar. that is the person responsible for the form and content of the marriage license. the registrar, who is the

defendant here, will enter the injunction have to change the form and content of a marriage license. >> for that reason i am some surprise by a your answer to whether the clerk could even bring the motion for a declaratory judgment. as i understand locklier, the registrar puts together the form, the questions to be asked, all of a particular things about the court needs to know, and as i understand what clear, -- locklier only completes the ministerial forms. how would the clerk then bring a or appropriate case about

>> i think you are exactly right and i do not think the court could. i think the one possibility is if the court were to say, i am concerned the injunction that you have issued binds me before the registrar has even given me any further instruction or additional -- she would have the narrow ability to simply ask the court whether the injunction binds her, the deputy clerk, directly or not. but i agree with your honor that the deputy clerk, even the color, if the real clerk was here, would not have any standing to contest that issue or even litigate that issue. it is purely a ministerial function. i would try to end with two points. one is that this case is at the

federal level of reflection of what happened at the state level in the marriage cases in which you didn't have the clerks, and you didn't have other defendants. what you had was the state defendant and the attorney general and the governor and of registrar as respondents. those are the proper respondents. the appellants here do not have been the personal, concrete, particularized injury that this court and the city of lake tahoe made absolutely clear was law, that the united states supreme court repeatedly made clear is no longer, that justice ginsburg's opinion, i think, makes particularly clear is the law. they do not have standing. and because they do not have standing, all of the other concerns -- and they are of legitimate concerns from a policy standpoint. we could have a different system of government where you didn't need that kind of standing

baird but those gains of concerns exist in any standing case. abortion -- >> you are running over. we know how important standing is, but let me ask you one other question. under rule 65, anyone who has served and is acting in concert with the people against whom the injunction -- people named in the injunction, people will act in the concert or participate with them are bound of they are served. would that not apply to any clerk who is involved in the marriage business in california? in this group i described to you, where it is an integrated process, so what not anyone bound by the injunction have a right to an appeal?

>> i think people directly down by the injunction would have the right to appeal. i do not believe these appellants are directly bound by that injunction because the injunction makes clear who is bound. if they are acting in concert with somebody and we serve them with injunction, which we have not done, and would not do, then the issue would be whether that binds them or not. i did point out to the court that the form of the injunction here does not use the "in concert" language. >> rule 65 does. it doesn't have to be in the injunction. the rule says that anyone who does that is bound. i am not sure whether you have the knowledge -- if that would be enough, or you have to be served. you might serve them, it would

help us clear up the case. [laughter] >> i've got will decline that, your honor. >> thank you very much. >> thank you very much. you must have a lot to say after hearing all of that. >> a lot to say but little time to say it. the one thing that is most important to say, your honor, it is you put your finger, i believe, precisely, judge reinhardt, on the key point of from arizonans as justice ginsburg -- this is what she said and the language i think you were referring to. she distinguished did this way. no one in arizona identified arizona law pointing initiative sponsors as agents of the people of arizona to defend in lieu of public officials the constitutionality of an assistance made lot of this state. what law from new jersey did of the speaker and the president of the senate brings is -- to the

supreme court? they brought in a jersey supreme court decision allowing them in of the forsythe case to intervene and to defend the constitutional challenge to new jersey state statute. >> one quick point -- wasn't the state attorney general willing to defend? >> the state attorney general did not defend. i did not believe he was willing to defend accept to the extent that the decision might result in attorneys fees against the state. he was willing to reserve some of a right to defend in that respect, but it is at least my understanding that the only individuals who took a notice of appeal -- appeal, and that is what we are dealing with -- notice of appeal of the third circuit were the presidents and the speaker. what long do i bring you? i bring you exactly the same law

the legislative officers brought the supreme court -- because i bring you the strauss case, in which these very proponents were allowed to intervene in lieu of the state officials who did not defend the statute, allowed to intervene, to do so, standing alone. judge reinhardt, my time is expired, but i would like to conclude by saying that if you don't agree with me that we have standing by virtue of of the analogy tocarture, then i urge you to ask the california supreme court this issue -- before you dismiss this case and that allowed to stand a single district court decision, single district court judge decision nullifying the will of the people of over 7 million californians. thank you very much, your honor.

>> thank you. the court will break a brief 10- minute recess and will return for the second hour. >> all rise. >> live coverage of the ninth circuit court of appeals in second step -- san francisco as the court hears oral argument on proposition 8 approving a ban on same-sex marriage. this meant the first hour discussing whether either side has a legal right to challenge

the constitutionality of proposition 8. after they reconvene at this 10 minute break, they will look at the constitutionality of the proposition and hearing from either side. more live coverage in just a couple of moments. more live program coming up tonight here on c-span. former "new york times" editor clark hoyt will join mark would occur on a conversation on the changing of journalistic responsibility in an era of new media. live coverage starting at 6:25 p.m. eastern here on c-span biff and a quick reminder than -- that when the senate comes into session tomorrow they will pick of the impeachment trial of u.s. district judge of louisiana. the judge was impeached in the house earlier this year on corruption charges, a two-thirds vote of the senate is needed. if he is found guilty he could become just the eighth federal judge to be removed from the bench. see live coverage tomorrow when the senate babbled in starting

at 10:00 a.m. eastern on our companion network c-span2. we go back now to the beginning of testimony in this case -- were heard first from the attorneys arguing against same- sex marriage and the leader of the opposition did just under 15 minutes. >> my name is charles cooper, i represent the appellants. it is a pleasure to be here, judge reinhardt. thank you very much. the appellants, official proponents of proposition 8, and the official campaign committee protect marriage.com. there are two jurisdictional issues before the court. the first one is whether this court has jurisdiction to review the merits of the district

court's decision striking down proposition 8 as unconstitutional. the second jurisdictional issue is whether district court itself had jurisdiction to enter a sweeping statewide order enjoining enforcement of proposition 8 on behalf of all same-sex couples, despite the fact that the complaint itself was brought by four individual plaintiffs seeking relief on behalf of themselves without any claims on behalf of a class nor any request for class certification. speaking to the standing issue, your honor, the question is whether the proponents have standing or whether imperial county has standing. mr. tyler will speak to that issue momentarily. with respect to the proponents, we've -- this issue is controlled by the supreme court decision in carture against may.

in that case the plaintiffs brought a challenge to moment of silence law and new jersey in 1983 said. they sued the state education officials, state and local officials, and no one else. the attorney general and that k -- case declined to defend the moment of silence statute. and in of the default of the official defendants, the court allowed the speaker of the assembly and the president of the senate's, on behalf of the legislature, to represent the state's interest in defending its statutes. the supreme court rejected the claim that the speaker and the president of the senate were not proper parties defendants, that they did not have standing. the reason they did is because the new jersey supreme court had

previously, in a case called forsythe, allowed the legislative offices to intervene on behalf of the legislature to represent the state's interest in defending a statutes in that case -- that was a redistricting statute. >> was that before after arizona for official language? >> the carture, ks? your honor, that was before arizonans. >> could not have discussed judge ginsburg's statement in arizonans -- the court never allowed proponents of ballot initiative to advance -- article 3 standing? >> that is true, your honor, it could not have, but the proponents in this case are really in precisely the same

issues. as the legislative officers were in the carture case. your honor, under the law of the state in california -- of california, the proponents of initiative measures are rarely allowed to intervene to defend -- to defend the measures they propose. >> state court proceedings. >> yes, your honor, in state court proceedings. >> what is your best case for allowing the proponent of a ballot measure article 3 standing in federal court on appeal? >> your honor, i don't have a case for allowing a proponent article freestanding. i am here advocating that this case be one that allows proponents article 3 standing -- >> just as ginsberg said -- it may have been -- but said and

errors on a case that she was not aware of any errors on a case which reported standing to the proponents. do you believe that there is a california case -- actually ever some of law, which may have included not only a statute but a supreme court ruling or may have not? are you aware of any california law which states that the proponents do have standing? >> your honor, in fact, the case of strauss, which involved in these very proponents being allowed to intervene to defend the validity of this a very proposition is, we would submit, directly on point and precisely analogous to the forsythe case -- >> but strauss did not talk

about where you have proponents are agents of the state. strauss only talks about you as proponents as agents of your proposition. we are in a different situation here. >> your honor, forsythe itself talked about the legislative officer is being allowed to intervene on behalf of the legislature in that case, has authorized to represent the state's interests. >> let me ask a question, in little bit different question. there is no question the attorney general has the duty to defend all the causes in which the state or any state officer is a party, in his official capacity. did you ever sink -- seek an

injunction or an order or anything suggesting the attorney general should appear and appeal, and if in fact it did not appeal, allow you to appeal? >> your honor, we didn't seek to enjoin or otherwise course through some judicial method -- >> is the attorney general has the power to do it in his official capacity or a duty to defend all causes to which the state is the party, wouldn't that be an appropriate way for you to have made sure of your ability to -- seek standing here? >> didn't someone do that, didn't someone go to the california supreme court and seek to compel the attorney general to appear? >> judge reinhardt, i believe you are correct. and lawsuit was brought it was not one that i or my clients were in any way involved in and

the suit was unsuccessful. but the point, i guess, your honor, i would make that i have little doubt that in the forsythe case, referenced in carture, that the attorney general there clearly had authority to defend it the new jersey statute at issue there and to take an appeal, but that the attorney general declined to do that. just as the california attorney general has declined to do it. yet, ian cartcher, the united states supreme court recognized that the lead this late of officers had at the authority to not only intervene at the trial

level and defend the moment of silence that she'd but also to take an appeal -- park is not just in the trial court also the third circuit. of -- i would urge the court that the law, the state law, relied upon by a va cartcher court demonstrating the legislative officers in that case had authority to represent the state's interest in representing a statute is a new jersey supreme court decision, just like the california supreme court decisions that we submit establishes the lot on which we rely, the law, in fact,

involving these components where the california supreme court a lot of these promised to intervene in the strauss case and defend the constitutionality understate competition, just like foresight, to defend the constitutionality of proposition 8. when no one else would do so. all of these state defendants refused to defend the statute or at least in fact challenge the constitutionality. the only party defending the constitutionality of the statute across the board in strauss is these proponents. and it that case, i hasten to add the california supreme court denied intervention status to another group, a group that was

not an official component of proposition 8 but an active group. in the strauss case also, at the court of appeals level -- excuse me, it was not in the strauss case, but the marriage cases, at the court of appeals level, the court of appeals denied intervention to a group that was not the official proponents, but it stated that we make no ruling with respect to under whether under our law, the official proponents would be authorized in the default of the state officials, in lieu of state officials who have declined to defend. would be authorized to come in and represent essentially the

state's interest in defending a state statute. >> one further question about the earlier discussion about whether or not anyone tried to get the court to compel the attorney general. did the court say anything about that or just denied? >> judge reinhardt, forgive me, i don't have a specific recollection of the court's ruling in that case. >> better to say you don't know, than to guess. [laughter] we can certainly check that. there are two of you arguing in this half-hour or so i guess you will each save whatever time you want. only one would respond. >> the designated that only one of us would be eligible --

>> that was a wise decision. [laughter] and in light of that directive and the fact i am at the podium first, i would like to reserve the balance of my time, just a couple of minutes -- >> returning now to live coverage of the ninth circuit court of appeals in san francisco and the case on proposition 8, ballot measure approving a ban on same-sex marriage. this is live coverage on c-span. >> good morning, again, mr. cooper. >> good morning again to you, as well, your honor. the people of california and americans brought the country are engaged in an earnest and profound debate about the meaning, purposes, and definition of marriage. the issue is a momentous one, for it goes to the very nature of an ancient and ubiquitous social institution that is, in the words of the united states

supreme court, fundamental to the very existence and survival of the human race. this court is presented with, in our submission, this fundamental question. it is whether the definition of marriage, that momentous issue, is one for the people themselves to resolve through the democratic process as they did in enacting proposition at eight. it or whether our constitution takes that issue it essentially out of their hands and the sides and for them, as of the plaintiffs argue here. >> the people love, deede california reinstitute school segregation by a public vote -- good people of california resident shot -- school segregation by public would? >> that would be instant -- inconsistent with the united states constitution. >> as interpreted by the u.s. supreme court. >> yes, your honor, --

>> but it probably could have done that in 1870 or 1880 or 8090, right? >> very possibly, your honor, yes. very possibly. >> how is this a difference? >> your honor, this is nothing like the, for example, the racial restrictions at issue in loving where there is simply no legitimate rational basis whatsoever on any purpose of marriage that one could possibly conceive to deny the right of a mixed-race couple to marry. on every basis on which one can identify a purpose of marriage, a mixed-race couple satisfies

those purposes. so, the question is it -- >> do you suggest that baker would mandate that the state has an absolute right to prescribe the conditions upon which the marriage relationship between its own citizens should be created, correct? >> not an absolute right, your honor. we all agree that that right is a limited by what ever restrictions the united states constitution a place on its. >> so, loving v. virginia falls right into that restriction? >> directly, your honor, and the supreme court said that the racial restriction violated the central meaning of the 14th amendment, both its due process clause and equal protection. >> so, if i agree with that, what do i say is the general notion when confronting turner v. saffley?

>> the case in dealing with the prison inmates -- the right of prison inmates to marry. your honor, the central i guess point that we want to advance here is this -- what is the distinguishing characteristics of opposite sex couples that are relevant to interests that the state has authority to implement -- >> argue arguing to me that it is enough for a rational basis for the federal court to get involved in that right of a marriage? >> we are arguing that the test that applies here is a rational

basis, a test, and that if there is any rational basis for the opposite sex, traditional definition of marriage, then that traditional definition of marriage must be of help. and only if this court concludes that there is nothing to say in favor of the definition of marriage that has prevailed in this country and in all places it essentially at all times since time immemorial, there is nothing to say in defense of it, there is no rational basis for it, then this court would have to strike it down. but that is the test that we submit to you that applies, your honor. and we believe that there is clearly a rational basis and justifying the traditional definition of marriage. the key reason that marriage had

existed at all in any society and at any time is that sexual relationships between men and women, naturally produce children. society has no particular interest in a platonic relationship between a man and woman, no matter how close, no matter how committed it may be, or emotional relationship is between other people as well. but when a relationship between a man and a woman becomes a sexual one, society immediately has a vital interest in that, for two reasons. one, society needs of the creation of new life for the next generation, but secondly, society -- its vital interests are actually threatened by the possibilities that unintentional and unwanted pregnancy would mean that the

child is born out of wedlock and is raised by, in all likelihood, its mother alone. and that directly implicates society is vital interests. both in terms of its immediate interests because society would have to step in and desist backed single -- a system that single-parent and all likelihood -- that is what usually happens -- in the raising of that child, but as well, in the undeniable fact that children raised in that circumstance have a poor outcomes. >> that sounds like a good argument for prohibiting divorce. [laughter] but how does it relate to having two males and females marry each other and raise children, as they can, in california and form a family unit whereas the

children have a happy, healthy comb -- a home. i do not understand how that argument says we ought to prohibit that. >> your honor, the point and the question is whether or not the state of california has a rational reason for drawing a distinction between same-sex couples who cannot, without the intervention of a third party of the opposite sex, procreate, and opposite sex couples who not only can appropriate but can do so unintentionally and create unwanted pregnancies. that is not a phenomenon that exists with respect to same-sex couples. >> what is the rational basis for an initiative backed went --

that when california law really says that homosexual couples have all the rights of a marriage, all the rights of child rearing, all the right to that all the others have -- what is the rational basis then if, in fact, the homosexual couples have all of the rights that the heterosexual couples have? we are left with a word, marriage. what is the rational basis for that? >> your honor, you are left with a word, but a word that is essentially the institution. and if you read the fine in the institution, if you redefine the word, and you change the institution. you cannot separate -- you

cannot separate the two. the name of marriage is effectively the institution. and the issue is whether it will be redefined, essentially, to be a genderless institution that bears little or no relationship to the traditional historic purpose of marriage. >> why aren't the merits of this case controlled by romer? after the proposition was passed in california, same-sex couples had the right to marry. the proposition takes it away. isn't it exactly what the proposition in colorado did? >> your honor, in romer, the court was dealing with a sweeping new -- law that placed

on differentiated girtin's and disqualifications on homosexuals -- >> if you take away a bunch of rights it is bad, but if you take away one right, it is ok? >> your honor, it is not a question of taking them away. it thus a. -- >> this rate -- it same-sex couples had the right to marry before the passage of proposition 8. >> your honor, the california supreme court affirmed that they did, yes, and the people with california disagreed with that and the people of california reversed it. >> how is that different from what happened in colorado? a few local communities decided they wanted to extend preferred status to individuals, homosexuals, gays, lesbians, etc., and the voters of

colorado passed a provision saying you cannot do that, you have no right, stop doing that. >> your honor, amendment 2 rendered a message about -- homosexual strangers to the law. eliminated any or all protections with respect to the ordinary pursuits of civic life, as the court put it. it was a sweeping, undifferentiated, essentially rendered them an isolated class and strangers to the law altogether. the court stressed it was an unprecedented -- it kind of statute. the traditional definition of marriage, your honor, is anything but unprecedented in our jurisprudence. it has existed throughout the history of this country. it has been the governing

understanding and definition of marriage in this state since its founding. and basically throughout the country and throughout the world for all time. the definition of marriage is anything like -- not anything like the kind of statute that the court was dealing with in romer and in fact in this case, i would submit that the question is -- your question, your honor, it is governed by the crawford case where the court said that it would refuse to interpret the 14th amendment -- these were its words -- to require the people of the state to adhere to the judicial construction of their state constitution when that constitution itself, vet final authority in the people. >> you told us that the people

of california could not reinstitute racial segregation in public education. so, we know there are some things they can't do. >> they certainly can't do that. >> without flying in the face of the 14th amendment. >> of the romer case opens from a quotation of the descent and pleasant and this is what justin -- justice kennedy says -- the constitution by the nose or tolerates classes among citizens. those words are now understood to state a commitment to the long process neutrality where the rights of persons are at stake. aren't you flying right in the face of that? >> your honor, if there are no reasons, no rational reasons to distinguish between citizens then the constitution does not permit the law to distinguish between them and treat them differently. >> proponents of the ballot

initiative in colorado made a perfectly logical argument is all they were doing was leveling the playing field, and justice kennedy said that not right -- right, not correct. >> and, your honor, it wasn't right. they were doing much more than that. it they were essentially opening days and lesbians to private and public discrimination and disabling any governmental body from intervening in that private discrimination. as justice kennedy and besides. -- emphasized. in common everyday civic life from banking, to hospitals, to hotels, to common carriers, all the ordinary pursuits of civic life, homosexuals were rendered strangers to the law. they could be discriminated against in these fashions.

that is a far, far, more sweeping and different thing than simply adhering to the definition of merit to that has prevailed in california and everywhere else since time and memorial. and again, the question comes down to this -- are their distinguishing characteristics relevant to an interest to the state has authority to implement at work? in the opposite sex definition of marriage? and if there are, the courts cannot saying that acting upon those of distinguishing characteristics is invidiously discriminatory. then a tricky response. let me ask you a request -- been a tricky response. let me ask you a question meant

to be entirely neutral. the preference of opponents -- let me -- let us say you are probably here and argue to defend the proposition. >> i accept that assumption, sir. [laughter] >> do you want us to get to the merits of the issue here? in other words, the you want us to sidestep baker? >> no, not at all. i believe baker is binding on this court. my opening legal point of -- point, would have been in fact this is not the first court to take up and deal with the very 14th amendment issues that the plaintiffs to bring here today. in fact, there have been eight appellate courts, state and federal, who have addressed these issues and so far as they

relate to challenges to traditional marriage laws just like proposition 8. and all eight of those courts have upheld the traditional marriage laws and rejected the 14th amendment claims. and one of those cases, your honor, is baker v. nelson, the supreme court case that we submit remains a good law, remains binding on this court. >> there are some differences. it was before romer and lawrence and didn't deal with the subject of appealing a constitutional right to that existed at the time it was taken away. >> that is a fair point, judge reinhardt. that is a distinction with respect to the issue as it came to the supreme court in a baker. -- in baker.

there had not been an earlier period in which the supreme court had essentially legalize same-sex marriage. >> california court, sir, said it, that is what the constitution says. as a citizens will have to accept that from that moment forward. it is not a matter of pulling rabbits out of that hat, it said this is what the constitution says. >> your honor, that is fair enough. it said the this is what the state constitution says. but under the california system, it is the people themselves who retain all of a sovereign political governmental power, and they are free to review that decision, to disagree with it and reverse it, and that's what they did in proposition 8.

your honor, we submit to you that the case came to the people of california the same way the case came to the california supreme court. on review from a decision of the california court of appeals, the lower tribunal. and the california electorate disagreed respectfully with their supreme court -- and the reverse the. in the crawford case, i would submit to you, at the point of this. another case where the california courts had interpreted the california constitution, i believe it was, the california constitution that they interpreted to go beyond what the federal constitution requires. and the people of california decided we are going to bring it

back to the place that is required by the federal constitution. and the court said, in a state like california where the people retain the ultimate power of the government -- >> generally you can amend the constitution. that is true. it depends on this subject and what you are unending. i think that is what judge hawkins was talking about earlier. what is it you are unending and can you recommend that? no one is suggesting you cannot amend the california constitution. no matter how the courts have interpreted as a general rule. the question is can you amend something -- not suggesting it is a fundamental right for the purposes of this discussion, a valid reason to amend this constitution under the standard that we followed?

>> your honor, i believe that the point of crawford is that the people are freed is essentially to disagree and reversed -- >> not anything. could you say we are going to now have segregated education? we couldn't say yes to that. >> no, your honor, because the federal constitution would have outlawed that quite apart from whatever the california supreme court had to say about that. so, it would not back -- matter of the people did it before a california supreme court decision or after a california supreme court decision. if the california constitution had provided that there will be racial segregation, as you

suggest, in connection with schools, the federal constitution would outlaw all that and it would not matter whether there had been an intervening supreme court decision from california also outlawing it. the point really is simple -- simply this -- if proposition 8 had been enacted before the california supreme court ultimately it invalidated traditional marriage -- if it had been enacted before that, the constitutional case that would come to you is the same as it is it coming to you now with proposition 8 having been enacted into reverse the california supreme court. because in crawford, the people

of california retained the authority to reverse their supreme court unless the federal constitution is violated then and there by what they did. >> if you are taking away a right from a particular class without sufficient reason -- using the standard -- without a reasonable reason, and and it is done for a reason that could only vague directed -- could only be directed at a class in a manner that is -- i will not say invidious, but a biased manner, and you can sometimes the ride that view of bias from the action in itself, then you cannot do it. here you have to take into account all of the circumstances.

you had all the aspects of marriage other than a title. what is the reason for wanting to take that title away from a group of people who have enjoyed it? that is where i think you get to the constitutional question. >> your honor, in our submission to you is that the people of california needed no reason beyond the fact that they disagreed that there constitution ordained that result that there constitution outlawed and by letter traditional definition of marriage -- i beg your pardon? >> why isn't it true of romer? the people of california -- , data decided they wanted to do

that. and like what the people of california did. but there is a limit on that. it does not have to be in the federal constitution, except that there has to be a rational basis for it and it can be related to bias. >> yes, your honor, that is true. so, if proposition 8 were coming to you without their having been this previous period in which california had approved of same- sex marriage, it would come to you in at the same constitutional profile that it comes to you now. i guess our point is, it is not changed because there has been this previous period when the california supreme court has interpreted the california constitution to invalidate putin -- >> that is an interesting question, i think, in this case. would it really be the same if the state did not go as far as

california had gone? would it be required to go that far? in addition, when you are taking something away. you could argue there is no difference. i an not sure that is a settled question. but i would think that the other side -- i know the city of san francisco particularly did -- said it is different when you are taking away than when you are not giving. >> well, your honor, i don't deny that there is some force to that proposition but i do commend it to you the crawford case, which i think doesn't support the proposition that the people -- they act -- if the california court of appeals had invalidated traditional marriage and the california

supreme court had reversed that and said, no, our constitution doesn't do that, no one would say that during the interim that that might have existed and the california supreme court had it stripped the people of california of it. what we are submitting, and what we believe the crawford case supports, is that the people themselves are a tribunal over their constitution, standing in those types of shoes. democrat the people of california -- suppose proposition -- >> could the people of california -- suppose proposition 8 in addition to addressing the subject of marriage had done in part of the proposition in romer did was to disallow sobel unions, would you have the same response, the same argument? >> your honor, i believe that

the argument i am making here would be the same, but i do recognize that the argument for the constitutionality of proposition that accomplished that result -- or perhaps i should put it, the constitutionality of that result would be on different footing that proposition 8 itself. >> that sounds like you are a little uncertain if they added civil unions. what if they had said we don't want hospitals allowing visitation of dying of the ones by same-sex partners, and added that to the proposition? would that put it on shakier ground? >> this proposition i am advancing now, no, the point being that any time a state goes beyond -- and here i am assuming that this would go beyond what

the federal constitution demands -- and if it goes beyond what the federal constitution demands, then the people are free, according to the specific language of crawford, having gone beyond the requirements of the federal constitution, a state is free to return to the standard prevailing generally throughout the united states. >> if the proposition had simply done away with the civil unions, crawford would say that is ok? >> if it had simply -- >> if proposition 8 had simply been addressed to disallowing civil unions which, as i understand, and out under california law, if that is all the proposition said, crawford would say that is okay? >> yes, your honor, to the extent that civil unions are not required by the federal constitution. >> what does that mean to the

extent that? they could take it away or they could not? >> they would be able to take it away, your honor, unless the federal constitution itself requires the states to afford civil unions to gays and lesbians. >> how does that differ from romer? they took things away and roemer are not required by the federal constitution. there is more to it then your answer. >> no, your honor, i don't believe that the things that were put in place in romer -- in fact, justice kennedy said this was not just a repeal of the provisions that had been enacted in denver and other municipalities. and he suggested that it has -- had always had been, it would not be constitutionally injectable. it went much farther than that

and then going much farther it became a constitutionally objectionable. then i did not need for you to stop your sentence. the dam i did not need for it -- mean for you to stop your sentence. there are about couple of questions that i am particularly worried about. some states have not extended domestic partnership rights to homosexuals. do they have a stronger argument or not rational basis a band of california? -- on a rational basis than california? i am trying to get you to differentiate your argument. it seems to me your argument can be made as to rational basis if there weren't all kinds of rights already given to those homosexuals and domestic partnership rights? i am asking you straight out,

some states haven't done it. do they have a stronger argument then for rational basis than does california? >> your honor, to the contrary, i think they do not. i do not think they have as strong an argument. it would be quite perverse and the people of california in enacting and addressing the very legitimate interest and needs of gays and lesbians and their families, by enacting domestic partnership law, and going as far as the state can do short of redefining marriage. and the state insisted in proposition 8 that it not redefine marriage and that it preserves that institution for the specific purposes that it has always served. i don't believe the state, judge

smith, has weakened its constitutional position when it goes as far as it can't do addressed the interests of -- to address the interest of gays and their families -- >> this is what i am worried about and your particular situation if i adopt your argument, is i am trying to find a rational basis in this particular situation, when california has gone as far as it has, what is the rational basis that we really have? i am wondering if it is just not to maybe market of the marriage of a man and woman, or promote a special relationship in society? is that enough to read the magic -- rational basis? >> i believe it is to preserve the institution of marriage for the purposes that it has always served, the societe --

society that are vitally implicated by sexual relationship between opposite sex couples are not implicated in the same way. my time is well past -- >> wanted to see if judge smith was through with his question. >> i will skip the last question, thank you. my last question was -- [laughter] since the good judge has given the opportunity, do you think this rationale would satisfy the more searching form of rational basis justice o'connor elaborated in lawrence? >> your honor, if this case was to be decided by heightened scrutiny, then obviously it is a harder case. but we think it does this satisfy a heightened scrutiny. the essential proposition, your

honor, being that the main objection to the rationale that i have articulated here is that infertile couples are nonetheless allowed to marry, and that is true, no society has ever insisted that marriage produced children. but, your honor, the question becomes how would society draw that line? how would society do that? it would have to have orwellian measures designed to police fertility before marriage, orwellian measures designed to presumably an all marriages that are childless. those measures would

undoubtedly by a constitutional rights of the individuals involved. we do not think that any less restrictive method could be, as a practical matter, employed. i appreciate the court's indulgence. >> thank you, mr. cooper. >> i think you indulge me, and i hope you did not go too long so he is aggravated with me. thank you. >> we will give you two minutes anyway. >> we appreciate that, your honor. >> may it please the court, my name is theodore olson and i am here on behalf of the plaintiffs. it is important to focus on the fundamental fact that california has in graved discrimination on the basis of sex and sexual orientation into its fundamental

governing charter. he latent given to proposition 8 in the official voters pamphlet says it all. it eliminates the right of same- sex couples to marry. this proposition marginalized and restricted over 1 million lesbian and gay californians of access to what the supreme court of the united states has repeatedly characterized as "the most important relation in life ." a you do think there's difference between taking the right away and not affording it in the first place? >> yes, we do, judge reinhardt. that is what the united states supreme court said in a case going back to 1964 were the california citizens acted through this process and it took away rights with respect to discrimination in housing. that is what the supreme court

said in cromer vs. colorado. it does make a difference. i do not think, as an original matter, it would be constitutional if congress had enacted proposition 85 years ago before the marriage cases, but i think it makes it worse. that is what the supreme court has said. the taking away of the rights in that context enhances the effect of the constitution -- the reported constitutional change. >> what is your answer to the case mr. cooper referred to several times? blessing and of bringing diversity to the schools on? >> that is the crawford case. it said that to the extent not required by the constitution,

remedies for constitutional violations could be restricted by the people of the state of california. that does not change anything. i heard mr. cooper mention the crawford case five times. not once anywhere in the crawford case does it suggest that an initiative measure somehow rises above the 14th amendment to the constitution of the united states. that is certainly what the right man case held and it certainly what the rumor case held. >> are you suggesting then that gay marriages required by the constitution of the united states? >> record reddick constitution and the united states is the fundamental right of its citizens to marry. mr. cooper defined that as it has always been between a man and woman. the united states supreme court has never said that. what the united states supreme court has said in the 14 cases involving the right to marriage is that in the context of

abortion, in the context of prisoners, in the context of contraception, and in the concept of divorce that their right to marry is an aspect of the right to liberty, privacy, association, and identity. >> what i am trying to find out is if your argument here in response to crawford that there is a constitutional right to gay marriage. do we have to reach that point? what you are answering is that they are taking away a constitutional right. if that is your answer, fine. if it is not, i would like to know that also. >> my answer is that they are taking away a constitutional right given by the state of california and recognized by the state. that in and of itself makes proposition 8 unconstitutional under rummer and reitman.

i would also say, judge reinhardt, a gay marriage or single-sex marriage anymore than the supreme court of the united states called the interracial marriage. what the supreme court has said 14 times is that it is a rite of liberty, association, privacy. >> you can say whatever you want in deciding the case. i think we are entitled to know whether your answer to crawford is that if you cannot take a constitutional right away and this is it taking away a constitutional right under the 14th amendment. >> yes. i would also say -- >> is dependent upon our finding that they would be taken away constitutional right? >> no. the right of marriage is the right of an individual. mr. cooper talks in right of

society. society's interest in procreation. it is not society's right. the rights of the constitution are not the rights of california. they're not the rights of the voters of california. their rights of citizens of the united states under the bill of rights and the 14th amendment. if california could insist that something to do with procreation be engraved on to the rights of marriage, it could take that away. it could save that we're over populated and we do not want procreation and we will the nine people the right to marry. this is a fundamental coming individual right. the reason i am emphasizing this, judge reinhardt, is because of the look at this from the standpoint of the right of two particular individuals, maybe they were mr. and mrs. loving in the virginia case of interracial marriage, it was marriage. it was their right to get

together. what the supreme court said in the griswold case is that we deal with the right to privacy, older than the bill of rights. marriage is a coming together, for better or worse, hopefully in during, and intimate to the degree of being sacred. it is is an association that promotes a way of life and so forth. from the griswold case, this is one of the -- >> mr. olson, i am not trying to express the view on gay marriage or any marriage at this point. i'm trying to find out how far we have to go if we are to except your view of this case. certainly, if we start out from the assumption that everybody is entitled to marry anyone else regardless of sex, sexual orientation, if we have to reach that issue, we would. as you well know, and as you

have argued, we are advised not to reach a constitutional question unless we have to. i was not planning on reaching -- preaching that question this early in the discussion, but it seemed to come in relation to how we deal with the crawford case. for that reason, that was why i was asking whether in order to distinguish crawford you are saying that, if necessary, to take the position that you can only -- the only thing you cannot take away as a state is a right under the 14th amendment. >> it seems to me there are two questions. how far you have to go in the significance of crawford? you do not have to go any further damage the romer case says to go. it's just taking away the constitutional right of

individuals who are homosexuals because of their classification that as homosexuals violates the united states constitution even under a rational basis. i would say, if i get a chance to do so, this is the clearest case. in addition to that answer which i submit, how far do we have to go? the additional answer with respect to the crawford case is a separate thing because crawford was saying is, yes, citizens can change a non- constitutionally required remedies for constitutional violations. that is different than this. the crawford case, in my judgment, has nothing to do with this case. i would be happy to put the crawford case against romer, loving, and texas. it cannot possibly, but it does corporate decisions.

one additional lancer, and i think it is important since i slipped into mentioning the lawrence case is that the united states supreme court has determined that that intimate sexual conduct between persons of the same sex is constitutionally protected. the supreme court has said, as i said, and that marriage is a fundamental right. how can the fundamental right of married to be taken away by californians for persons because they are engaged in a constitutionally protected activity? how can the constitutional right be taken away because of the constitutionally protected activity? it cannot exist. if you put the together with the marriage cases, loving, so on and so forth, you cannot take away that right, which is not a writer of same-sex persons. it is a right of all persons and it is a right to be with the person that they love, to have an association that they select,

to live a life of privacy, to identify themselves using self identification as justice kennedy talked about in both romer and lawrence. that right cannot be taken away from individuals because of their sexual orientation. it is discrimination on the basis of sex and it is discrimination on the basis of sexual orientation. even under a rational basis test and the have tried various reasons in this litigation. they started off with the proposition that in the ballot materials that it was necessary to protect our children from thinking that gay marriage was ok. that was the original rationalization in

advertisements and it is in the ballot measure proxy information. protect our children from thinking that gay marriages ok. what is the matter with that? it must be something about gay people getting married that would be discerning to california voters. you have to take that risk away from them. basically, they retreated from a proposition and it only appears on pages 107-108 of the brief that the filed. basically, they are now saying that if a marriage were permitted, and this is on page 107-109 of their brief -- "proposition 8 needs to be enacted because the existence of same-sex marriage will somehow make children prematurely

occupied with issues of sexuality peacoat that is nonsense that you can enacted proposition -- with the issues of sexuality. you are worried that otherwise children may be prematurely occupied with issues of sexuality. if that was a justification, it would equally warrant that in the ko'd books, television, and video games in conversations with other children. [applause] -- [laughter] >> in deciding whether or rational basis saves this proposition, what should we look to? sure your question is asking me whether it should be a rational basis and what would be the jet -- justification. >> do we look to the record made in the district court or do the cases suggest that we imagine

whether there is any conceivable rational basis and apply that? >> the answer is that that is too attenuated. just imagine something from the sky that someone could imagine. romer makes it clear, and in the justice kennedy, it says we must look further than that. we must look into the reasons and the must make sense. they cannot be attenuated and they can be motivated by the fear of people we do not like or minorities. it has to be more than that. most of all, it has to be rational. that is why i was looking through the reasons they have advanced. one is to protect our children. we have seen, i think, that is manifestly clear that it is that a rational basis. you cannot do that. basically, that is based upon the idea that there is something wrong with these people and we must protect our children from

them. that will not work. >> injustice in this for the purpose of my question that we were to conclude that this accidental pregnancy argument is, in fact, a rational basis. have the proponents of the proposition for the imperial clerk given up that argument because of the arguments they made in the political process leading up to its passage? >> no, but i think the court needs to look at all of that in the context. you need to look at the context in which the measure was passed. i will say that if i move to that point, this concept of rational procreation -- and there is no way that proposition 8 prevents him, by keeping of individuals of same- sex to get married, have anything to do with heterosexual marriage. same-sex marriage is not calling

to discourage a heterosexual people from getting married. it will not keep them from getting divorced. it will not have any effect at all on their choice of having children. on the other hand, the alleged -- the elimination of proposition 8 cannot possibly hurt the heterosexual relationship battled -- at all. the evidence was clear from the witnesses in this case then there would be no harm as a result of the elimination of proposition 8. mr. cooper, quite candidly, when he was asked that question that the summary judgment meeting, "what harm can there be"? he said, "i do not know." what he was saying is that we do not know the impact of allowing same-sex marriage and how it may affect this very important institution of marriage. it is a very important

institution of marriage because it means a great deal to the citizens of this state. >> people in the popular election campaigns make all sorts of nonsensical arguments. >> i have not heard that. [laughter] >> not to vote for someone or to vote to someone, but my point is this. my reading suggests that this is a matter as what is referred to as legislative facts. it matters not what a whole bunch of people would suggest one way or another but that this is a legislative fact that we look to. if it can be conceived and argued that there is a rational basis to uphold the constitutionality of prop. 8, that satisfies the test. >> several answers to that. one is the idea of legislative facts means that instead of witnesses who talked about the history of discrimination, the damage that discrimination has

done, the immutable characteristic we are talking about that people do not choose to become gay, the have the characteristic which this court in the hernandez case and the california supreme court has talked about and with respect to the inability if i could have a slight digression is that all the plaintiffs and other witnesses in this case, and the experts, the judge's findings suggest that this is a characteristic that is immutable. in the long history of discrimination, which mr. cooper stipulated to at the trial, the damage that is done as a result of the discrimination, all of this requires tighten scrutiny. if you were to go to and imagine on a rational basis standard articulated along the lines that you did, which do not think is the test, i do not think that is all consistent with clayburn or romer.

if you were to say that, what conceivable thing can we think of it that would justify doing the damage that is being done to our citizens in california? what is it? i do not know what it is. >> just a minute. maybe i could suggest a couple of things. do you believe that the idea of distinguishing marriage from domestic partnerships in name only in order to promoted as a vehicle for procreation, responsible procreation, and inclusion of one group promotes legitimate government purpose? all things being equal, children are most likely to thrive when raised by a father and mother who brought them into this world, do you believe that would survive a rational basis review?

>> that would be inconsistent with the evidence in this case. >> it is slightly in consistent with the evidence in this case if you naturally drawn to the conclusion that the only evidence in this case is that which the judge has suggested is in the record rather than that legislatures do things for their own reasons and then the judge might find if there is evidence for it or against it. i am suggesting that the idea of distinguishing marriage from domestic partnerships, in name only, to promote it as a vehicle for procreation, all else being equal, children likely to thrive when raised by a father and mother who brought them into this world, that it is rational? -- irrational? >> yes. mr. cooper said just a few moments ago that the name is the

institution. those are his words virtually verbatim. the name is the institution. the witnesses at this trial, the witnesses that came forward and were willing to be cross- examined and willing to testify under oath, not the law-review articles that were put in by the proponents, but the witnesses that came forward in this case, plaintiffs, and other witnesses talked about what marriage meant to them. what it means in this society as an institution, not just with the supreme court said, but we ended with the plaintiffs said, the experts said, the supreme court said, and there's nothing that would suggest that children to ride in a better way in that environment. in fact, the proponents expert testified that the children in those relationships would be better off. we would be a better country. we would be closer to the american ideal of same-sex

marriages were committed. now, it is easy to say those things, but you have a better situation were a child is with a mother and father, but allowing that the other problem with that is that the remedy does not fit the so-called problem. restricting marriage to people of opposite sex does not mean that there will not be people in same-sex marriages. california permits that. there is something like 37,000 children in same-sex households in california today. there are also 18,000 same-sex marriages which are not at issue in this case. it is easy to see that children will be better off in that relationship, but if you have a heterosexual relationships permitted in california and marriages between persons of the same sex, it does not change

where the children will be raised. if a child is a product of a biological relationship between man and a woman, it is up to that man and that woman to keep them together. i think judge reinhardt suggested that a better remedy would be to prohibit divorce, but that is not something that californians are interested in doing. >> are we free to use anything other than the rational basis test in the ninth circuit? >> i believe very strongly that you are. the hernandez case talks about the amiability -- imutability with respect of talking about any other aspect of the doctrine of heighten the standard. i think it has been ventilated and the issues that would support and enhance, and heightened scrutiny are all

present and you would be bound by what the supreme court has said. i think that case supports exactly what i news just saying. >> the factual circumstances argue that they are in different. i guess you have authority that the factual circumstances alone would allow us to make a difference holding than the prior three-judge panel? >> i think been hernandez case, a subsequent decision, already addresses that issue. and i think the federal public the fender case, i think it was levenson, also addressed that point. >> it was in the administrative ruling. >> i thought the wisdom in that case was superb, your honor. [laughter]

the reasoning, i think it, i could not do a better job in answering the reasoning set forth in writing in that case. with respect to the baker case, the supreme court has made it very clear that when the facts are different and the precise issue is not the same, sexual orientation was not presented in that case and it was strictly about gender. the facts here are different, not just the romer situation where california has recognized same-sex marriages, but california has an interesting crazy quilt of laws in this state with respect to marriage. some people may be married because they are heterosexual and some people may not because they wish to marry someone of the same sex. some people who were married to someone of the same sex may stay married, but they were to get a divorce they could not even remarry the same person.

some persons out of state and if their marriage is legal outside of the state, then they are recognized in california. we have an irrational system. with respect to the baker case, the grounds have changed because of the supreme court's sex role discrimination cases -- sexual discrimination cases and with respect to lawrence of the taxes. what this comes down to -- lawrence verses texas. california has built a fence around their gay and lesbian citizens. it has built a fence around the institution of marriage, which the supreme court says, "not based upon sex, procreation, or anything else it is the most important association in life." the citizens of california, because of their sexual orientation, are denied access to what every other citizen in california has been closed within the other fence.

that is a violation of the equal protection clause and it is a violation of due process. >> are we free and in view of the way that the supreme court has told us to decide constitutional issues that the narrowest should be adopted? are we free to do anything other than decide the issue of whether california's repeal of the initiative constitutes a violation? you're closing speech would require that any state that did not permit gay marriage would be in violation of the constitution. there is a possibility, i think, in this case the proposition 8 would draw the right of gay marriage from gays and lesbians

is unconstitutional. under the circumstances that they have enjoyed the right, that they're given every other aspect of marriage and it has been taken away. -- all that is taken away is the hon. designation. are we free to go beyond a holding, if we were to rule in your favor, a repeal of the right to use the label "a marriage" and to receive the certificate that under those circumstances it is a violation? can wean go further than that? >> i do not think he mentioned was involved in that case. i do not think that case should come in any way, and have you from what you are doing. the answer to your question is that you could decide this on the narrow ground that the romer case gives to you from the

california supreme court. i do not think there's anything in the united states supreme court jurisprudence that suggests that you cannot look at the larger constitutional question which is subsumed within a. what has california done? california has taken a class of citizens and put them in a separate category, whether they had a different category before or not. that act of discrimination, there is no doubt that it is discrimination, and there is no doubt that it does great harm. the only question is, can be justified under any standard of constitutional analysis? i submit that it cannot be justified under any standard of constitutional analysis because the lowest standard, rational

basis, you would have to know what is rational. all the arguments that my opponent is making with respect to how valuable the institution of marriage is are not rational when it comes to the question of the, "why did you draw that line"? heterosexual people are different. gay and lesbian people are different. that does not mean you can classify them, to use justice kennedy's words, and then exclude them from this part of society. the rational basis analysis has to go to the justification for the exclusion. what goes california trying to accomplish, and what it has accomplished in the proposition 8? does pursue those goals in a proper way? that is where rational basis falls down. he may say left-handed people are colorblind and make some distinctions, but if you are

saying they cannot participate in a right because of a characteristic, you have a new process violation, but an equal protection violation. ultimately that is the decision i would like to see this court issue. >> thank you, mr. olson. >> thank you. may it please the court, i want to focus on the circumstances and the context particular the california to show how singularly a rational proposition 8 really is. there are four things, but first i want to talk about is that it imposes a special disability on gay people for reasons that california has disavowed and it does not attempt to pursue them in any other arena. california regulates child- rearing and parentage separate

from marriage and proposition 8 has nothing to do with trying to promote one family from raising children from another. besides that, california was not doing governing and parenting. the law continues to recognize that same-sex and opposite sex couples are the same for the purposes of family and child rearing in every way that matters. as the californium supreme court held, proposition 8 did not change any of that. it had nothing to do with the rights of gay people to raise families. >> are we talking about a label here? >> we are talking about a label, but it is very important. it has great meaning and i think both sides of the table with stipulate to that. the amount spent on the measure is a testament to that. that leads to my second point -- >> that leads to a question that my colleague answer the other

side -- asked the other side. is a state which allows, as california apparently does, everything short of the label, in a better position to enacted proposition 8 that a state which allows none of it? >> i do not think it is a better or worse position, but what i would say is this. we agree with the plaintiffs and we tried the case with them that treating same-sex couples differently with regards to family is unconstitutional across the board. when happens here in a californian when you have a child rearing laws and family- planning laws that treats families the same, and it undermines the rationality of the measure. >> how? >> family law in california both recognizes that gay people do procreate, allows them to use assisted reprieved -- assisted reproduction, trees their

families the same way for establishing parentage. when it figures out how the parents are the chart -- of the child are, sexual orientation is irrelevant. and recognizes that both heterosexual people and gay people can be irresponsible in walking away from their children. it does not matter how the child comes into the world. children -- appears to battle the time. >> nonetheless, if the rational basis is to do this in name only is to promote this simply as a vehicle for procreation then, does that not survive the crash -- the rational basis test? >> it does not, your honor, for two reasons. same-sex couples to procreate. they do not have to do it "the old-fashioned way," but they do procreate. california does not discourage that in any way to say one way is preferable, but if you were

to think that excluding same-sex couples would somehow encourage heterosexual couples to procreate in a different way or to be more responsible to their children, you have to assume that there is some reason that including gay people will make heterosexual people less likely to carry out their parental duties. the only way you can get their is to assume that the association of gays and lesbians came to the institution. that is not a basis in which equal protection allows the state to enact laws. i do not think it works, your honor. it is not rational, and the only way can be understood is to say that there is something so wrong with gay people that they put a stain on marriage and it will make heterosexual people, therefore, avoid being married. equal protection does not allow that. proposition 8 regulates the title and stature on in -- only. william s. courage filed a brief

on behalf of some law professors. he said this better than i can. he said, "the fact that proposition 8 is largely symbolic that while commanding stature it makes the insults that the measure visits on lesbian and gay couples obvious. what proposition 8 is doing is demanding we call them "a different" even if it treats them the same." that is the quintessential classification it is undertaking for their own sake. strauss says it carved out an exception to the equal protection, privacy, and due process clause. that is pretty extraordinary. and made are equal protection clause in our state constitution unequal. romer says with discrimination you have to be careful to consider whether it is obnoxious to equal protection.

any of those features i mentioned alone would make the court take pause, but when you take them together, they leave a prop 8. the fourth point is that the court does not have to infer, the context of the measure itself in the campaign really demonstrates that the purpose of the campaign was to be sure that proponents avoided it associating marriage with lesbian and gay couples because it would demean the institution. it was biased. the voters amended the state constitution to incorporate the measure after the california supreme court rejected it on a state constitutional grounds. why? because of the means gay people and treat them as second-class citizens. and relegates them to an inferior status. the campaign did not say that it got that wrong. they said we have to put them in an inferior status because if we do not we need children and

everyone else to recognize that same-sex couples are different. they are not the same as opposite sex couples and they are not ok. it betrays the opposite sex couples as a "traditional clothes "and "ideal." and is same-sex couples us something that to be kept in private. after the campaign, they wrote an article saying they deliberately tapped into the limited tolerance of gay people. they went about per trading days -- >> 30 seconds over into voluntarily give up some time. >> let me close with this. proponents say that this court must find that the majority who voted for proposition 8 are bigots. that is not so. prejudice, defined as the belief that one group is less worthy or less deserving than others is not always born of hatred. as justice kennedy said in garrett, it may be the result of

careful, rational, reflection or an instinct to guard against people that we think are different than ourselves. that, sort of, intent is what is underneath prop. 8. equal protection does not allow the state to enact a measure based on a view that some people are on were the. thank you. >> thank you. mr. cooper? >> thank you, your honor. just a few moments if you will, please indulge me. mr. alden -- mr. olsen spoke of the levin case. we know that if mr. levin had desired to marry mr. jeter that it would not have come at the same way. baker v nelson rejected that

claim on the heels of loving on the gay couple who brought that claim relied on loving very heavily. we also think that mr. olson is simply wrong when he suggests that the baker case did not involve a claim to classification based upon sexual orientation, just gender. here is what the plaintiffs in baker said. this is the route the jurisdictional statement. >> there is no discrimination and the law against homosexuals. appellant of being denied a numerous right, they have been denied numerous rights order to assemble -- others similarly situated. this was clearly a case where

they charge the classification is one based on sexual orientation as well as one based on gender. the levin case would have been the, on all fours, would have -- the baker case would have been on all fours with loving it same-sex sexual relations produced children the same as opposite sex sexual relations do. then mr. olson would have a laydown case. there were be no basis on which to draw a distinction to identify a distinguishing characteristic with respect to any interest the state has the authority to implement. there would be no difference. the question is, does the society have no interest in that

distinct characteristic? we submit to you -- >> is there a state that suggests that? or do you have a good argument? -- is there a case that suggests that? >> i think it is both, your honor. >> than i would like the case. >> in the case i am referring to is the garrett case which sets forward the standard i quoted. it, in turn, is quitting the cleburne case -- quoting the cleburne case. it upheld distinctions were they were drawn on distinguishing characteristics. i would also offer to the court as well the johnson against robison case. inclusion of one group promotes or dresses a state interest and the addition of others would not. then the state is justified in

acting upon those differences in drawing that classification. i like to also were firm to the court very quickly here -- >> nothing is done very quickly here. [laughter] >> when you are in the red, and does not mean you have that much time remaining. [laughter] >> there enough. if the court would give me 30 seconds, because this is a point that is clearly very much on the mind of the court. that is the romer case. "amendment two does more to repeal or defend these positions. it prohibits all legislative and judicial action at any level of state or local government

designed to protect the name to class, because we shall refer to as "homosexual persons." and then in two was unprecedented. it was extraordinary. -- amendment two was unprecedented. standing in its own shoes with regards to the history behind it, it was unconstitutional. and would have been unconstitutional if it would have singled out and made a stranger to the lot in the class of persons. again, your honor, thank you for your indulgence. >> thank you to all of you for a fascinating argument. the court will stand adjourned. >> all rise. [captioning performed by national captioning institute] [captions copyright national

cable satellite corp. 2010]

>> as you heard the oral argument come to a close, you heard frequent reference to the loving v. virginia case. it was featured this past weekend on c-span radio's landmark supreme court cases. you can hear the oral argument on the seas and radio website at cspanradio.org. we have more live programming coming up on c-span. later, former "the new york times" editor clark hoyt will join the nbc news washington bureau chief to talk about the changing nature of journalistic responsibility in an era of the media. live coverage begins at 6:25 p.m. eastern on c-span.

>> middle and high school students, as you work under documentaries for the student competition, here are a few tips. >> one thing i look for when watching your videos is you, the student. i want to see you and your personality which helps make your video stand out from the rest. >> what i like to see most in the student entries are a real investment and care in the topic that you will be telling us about. be sure to be interested in what you are telling us. if you are interested, chances are we probably will not be either. >> 1 tie-breaker for me a lot last year was the requirement on using c-span video. i want to find videos where they have looked at the c-span video content and have a downed the video elements that make the most compelling story. >> for all the roles including deadlines, price information, and how to unplug your video, go to studentcam.org.

>> last week, the supreme court did united states heard oral arguments in schwarzenegger case. i want to know if they rightly ordered the release of 45,000 inmates regard to health care to prisoners. this is about one hour, 20 minutes. "but the court has under review is an extraordinary and unprecedented issued requiring the release of between 36,0405000 inmates currently incarcerated in the -- 36,000

and 45,000 inmates in the california penal system. the order in this case particularly remarkable because it strikes me that, at a minimum, it is extraordinarily premature. it may come at some point in this process, probably substantially smaller, may become a corporate, but if this is supposed to be an order or remedy of last resort. with the district court has done is to leapfrog a series of steps that should have been taken ahead of going. >> one case has been pending for 20 years? >> that is correct. >> it seems to me there was something like 70 orders from the district court on that case. >> that is absolutely true. >> how much longer do we have to wait?

another 20 years? >> know, justice ginsburg. the length of time you have to wait some ties depends on where the state is any particular case. in this case, and in recognition of the substantial problems that were inherent in the penal system as it existed during the 1990's and up in the early 2000's, a receiver was appointed, there were also connections even in the coleman in cause even before the camera was convened. given their extraordinary power that has been accorded, the most logical course, if this is supposed to be a remedy of last resort was to allow an opportunity to implement the extraordinary powers conferred upon him and then see. if it turns out we're not making process -- >> excuse me. from your brakes, i just have

not understood what the alternative steps are. the cord below talked-about some proposals like construction said the legislature had struck them down. the fiscal crisis has gotten worse so construction is really not an option. i do not see how you wait for an option that does not exist. they talk about hiring more staff, but the conclusion was that even if he maximize the staff that you do not have the facilities to add more staff which is what you need. tell me what specific steps, outside of this order, should have been given time to be implemented? the receiver has said it they have tried and the progress they have made has been reversed because the population just keeps growing so they can never

get ahead of the problem -- of the problem. away from the rhetoric, give me concrete details about what the least resistive means would have been. they are saying they do not have a solution. >> i do not think that is a fair characterization of with the receiver said. they said -- >> that was one statement. it was years ago. is that what we are relying on? dig me concrete steps that have been released. >> all you have to do is look at what the receiver has done over the course of the period of time since his appointment and particularly when the second receiver was put in place. there is significant construction. the receiver has had

extraordinary success in the hiring process. we're close to -- >> what this case was about that the receiver has said, the master has said that they cannot make any progress at all until there are fewer people. the first step, not the last step, given what we are dealing with here the first step is that we have fewer people so there is more room for the health facilities, more room for staff to operate. >> justice ginsberg, the fundamental issue in this case is what is the real cause of the justice -- of the constitutional violation here? the real cause has always been the culture of disregard for the inmates. when the receiver was put in place for, the reason he was appointed, and properly so, this was the state's intense and not

our objection, was to change the fundamental culture and to provide, 1, construction, increased numbers, to provide -- which he cannot provide construction when the state does not provide money. >> august 8th, 2008, during that period of time literally hundreds of millions of dollars have gone to construction specifically and more than $4 billion have been spent on health care in this particular system. a great deal of that -- >> is there are these great changes in circumstances said that now that medical care can be administered in something approaching the sense, you could go back and say you are moving on and that circumstances have

changed. it is no longer the case that it is impossible to run it decent health care. >> i do not know if we could get that relief from a district court unless you're asking me to seek to remove the entirety of the claim. the order says that we have to get to 137.5% of design capacity was a pre-judgment. >> so you go back to the panel decision. circumstances change and come back. >> that will always be the case. the fundamental question here is a congress shifted dramatically the approach you're supposed to take as a court of equity in this case. this is supposed to be a matter of last resort meeting would give the receiver and a full opportunity to do with the receiver -- >> the receiver says in his brief on page 9, it is two paragraphs. as you read those two

paragraphs and sounds as if overcrowding is a big, big cause of this problem which is horrendous if you think is accurately described. in the first two paragraphs, is that a fair description for the record, if so that is a horrendous problem. the receiver says overcrowding is a big problem. "our plan and turnaround plan believes we can provide constitutional levels of care." you look at the turnaround plan and it says to spend $8 billion been -- building more buildings and the legislature rejects it. ok. there we are. more time? what is supposed to happen? >> today approved a smaller, but nonetheless, multi million dollar structure. >> did they approve that?

>> yes. >> they said they needed $8 billion and they only got $2.35 billion. i take it from your answer that the answer is no. >> there is evidence that the receiver asked for intense why he did not get the billion dollars and withdrew the motion. there is some sense in which the receiver is satisfied with $2.35 billion as an opening. again, all of this goes to come in my perspective, the fundamental question that the court should have evaluated in the first instance in which is are we ready to give up hope that this point? >> with the receiver says about the $2.35 billion is the date is a significant step forward and it is better than no construction at all. however, that is not equivalent to a conclusion that the current compromise will result in sustainable constitutional health care at the current

population density level. that is what he said. we have his views and i am back to my question. what else is supposed to happen? >> justice prior, when the receiver said that -- justice breyer, his brief is very clear. it does not urge the court to affirm the particular order in this case. canthis is dropped since the prr case, and given the prior actions by the legislature there are a lot of expenditures on the table and substantial reduction in the population size. even under the receiver -- >> do we have this information about that substantial reduction? in this record, no matter how

many efforts have been made -- now you say the population has gone down. from what point in time and how much has it gone down? >> it fell to around 147,000 from a high of 165,000, and it has dropped because there has been a change in that good time credit and a significant number of transfers. that was the purpose of the governor's proclamation. >> within the two-year period you're going to hit the mark? >> that is what the three judge panel said. if you implemented most of the proposals being made, you are likely to hit the mark. what you're saying is that you are going to do it. and then you do not, you come back -- you really do not think that if you hit 140,000% -- 140

percentage there is going to be in order of release over the limit. and they're going to ask what you put in to place over what additional period of time. >> there is the federalism answer and then the basic point to be made here. i think this is important. when we made our initial proposal for the three-judge court, what would be reasonable reduction when a reasonable period of time, there was a motion for contempt and a summary rejection out of hand, notwithstanding. >> we're fighting about the plan was wrong or are we fighting about that you are angry that you were told to do it in two years as opposed to do it in. -- 22 years as opposed to 25

years. >> from the federalism. the area >> can you do it in 25 years? >> is it in the best interest of the california? >> is in it to deliver adequate constitutional care to the people that you incarcerate or to mark that as a constitutional obligation. >> absolutely. >> when you going to avoid the needless deaths reported in this record? when you going to get around people sitting in their feces for days in a dazed state? when would you deliver care that will be adequate. >> don't be rhetorical. >> if elected to receive first 2009 best review which came out in september of 2010, it says

there has been a significant downward trend over the past four years. it was 66% of the average, and then 60% of the average, significant improvement. the more important point in response to your question, justice of the more your, the records were cut off in 2008. >> the problem i have with that, mr. phillips, is that at some point the court has to say you have been given enough time, the constitutional violation still persists, as the state itself enologist. this is the principal cause as experts have testified and it is now time for a remedy. the court has to focus on remedy and that is what it did. it seems a reasonable decision. >> justice kennedy, i agree with everything you say an ally

statement. you needed a significant remedy, no question about it. but you got a significant remedy when the receiver was appointed in 2005 and implemented a program in 2006. >> how much time should the court had given the receiver to develop his plan and implement his plan? >> there is node justice -- there is no specific time frame. they are entitled to reasonable opportunity to comply with the receivers orders and bring ourselves into compliance. >> the state itself said that if it had seven years, it got down to 1 37.5% and did not object to that. >> given all the evidence, constraints -- the fundamental difference between what you do under the hammer of the district court order, which is what we had under the circumstances, and what the state will do -- that said, the state is absolutely committed.

go back to their root cause of the constitutional violation. it is not overcrowding. when california violated the constitutional rights of the mentally ill in the 1990's, the prisons were not crowded. they were being rigid there was a fundamental lack of attentiveness to medical care under those circumstances. and that is to -- and that is unfortunate. that was the reason to go back -- that is why the receiver. it is an extraordinary remedy. to give a private individual the entire authority to run the entire department of corrections and medical health provisions, it is incredible. >> that officer himself said i cannot do this without a first of reducing the population. nothing will work until you reduce the population. then there is room for medical

personnel operating. that was the view of the district judge the receiver in the other case, they all agreed reducing the population is not going to cure it up without doing that as a first that, there will be no cure. >> even if you except that, and i do not think that is precisely how i would interpret what the receiver said under the circumstances, but even if you accept that, the idea of a 137.5% designed to cap that has to be implemented between fewer than two years is not necessary nor sufficient. it is not aimed at a specific class. it is not limited to specific

civil rights required by the prisoners litigation reform act. >> you cannot have a remedy without the class. and wanted have personnel's someplace outside of -- you cannot deal with this problem by just giving it to the people with medical problems. you have to provide space for facilities. >> the fundamental point is that it may eventually be that you have to get to that stage, but if you look at the receiver report since august 2008, which consistently analyzes this issue, and they say, we have been able to successfully bring in very qualified personnel and significantly larger numbers. we know there's construction employees. it may not be as substantial as proposed but it is very significant.

congress was very explicit that the remedy of a prisoner release order should be the remedy -- >> what i did was, it refers to online evidence and i went and looked at the pictures. the pictures are pretty horrendous. i would say page 10 of the religious reeves, for example, shows you one of them. what they are saying is that it is obvious. just look at yet. you cannot have mental health facilities that will stop people from killing themselves and you cannot have medical facilities that will stop staff with tubercular infection in conditions like these. and then you look at it. and you have looked at them. i have looked at them. what is the answer to that? there is nothing in here -- a special master said $8 billion is the answer. and they have not come close.

if you are in my position, which you say in an opinion that says that these three judges who have 200 pages of findings, what would you say as an answer to what i just said? >> i would say that the prisoner litigation reform act has a very specific requirements that the federal court has to comply with. in deciding to go to a three- judge district court in the first instance, you have to examine the orders in place, what of those orders have had a reasonable time within which to operate. >> but the state did not claim that either order in either case has succeeded in achieving the remedy. they never claimed that. >> it depends on what you mean. >> and if i could have your attention for a moment. i have this problem with the case. if i am running a hotel or looking at a highway system,

that is fairly simple. i recognize that congress has imposed a special duty on us. i think it means that overcrowding must not be ordered unless that is the only efficacious remedy in a permissible period of time. it seems to me there is massive expert testimony to support that proposition on the part of the prisoners. >> it seems to me that, first of all, i'm not sure it is consistent with the primary language and not the primary implement -- primary impediment. i think it is difficult and open as to how to proceed. but is still strikes me that the sequence that congress envisions and one that would make the most sense an alternate way that would hopefully accommodate both the plaintiffs

interests in the state's interests and the department of corrections interest is to allow the receiver to stay on a course they will get you there. one of the real flaws in this case is that no one doubts for a moment that there have been very significant violation of constitutional rights years gone by. and indeed, the failure ultimately to get to the point man where we are in fact providing signature it remedy. the reality is that over the last three or four years under the guidance of the receiver, who accordance with a special master on the mental health side, there has been a significant movement in the right direction. if the court had not jump the gun and said, we are not going to let that play out. we will lead heading to a three- judge court and go to a prisoner release order, this process would have played itself out and we would not be here.

>> all this talk about what the receiver may think can be done and seems perplexing to me. the receiver did not testify before the three-judge court, is that not correct course of margin was not allowed to. >> now he is submitting what is styled in the meet this brief where he does not address issues of law, he has blamed his views about -- he tries to explain prior statements and supplement prior statements. is that a problem? >> i'm a longtime believer that the amicus brief this open season in terms of what you want to present in the. >> can a witness submit an affidavit? >> that is not appropriate.

>> there were representations about the special master, and you must understand this in context. he pointed to put into context what you had used. you have quoted his statements. >> to be sure, we have referred to some of the same statements even in the jurisdictional statement of this litigation. this up and part of the case for quite some time. i don't know what motivated the special master to file at a brief period we did not object to it. i do think the most important part of that to keep in mind is that the procedure did not ask for this court to affirm. the receiver simply clarified certain statements that and made and put them in some kind of context. that is fine. we do not have any quarrel with that particular presentation.

i think to say that the receiver has insisted that he cannot get to a constitutionally permissible result without the order that has been imposed in this particular case is simply not consistent with the record and certainly not within that amicus. >> experts testified to that of that. >> they reach that specific conclusion. >> and the strike force and the governor's commission reach the same conclusion. strike team, i think the college. >> it seems a very big difference between what you need to accomplish in order to remedy what ever the constitutional violation has, recognize in the first incident that the biggest element of the eighth amendment violation is the bond which absolutely seems to have been completely eliminated by the conduct of the state over the course of the last three or four years. >> at the moment, we could go

through and have all of these breeds. there are all of these exports, all the reports, everyone saying you need to spend the money and we had if you really want to stir it -- you're the constitutional violation, but -- and nothing and give us more time. i read the newspaper, it doesn't seem that california has been voting a lot of new money for new programs. what is it specifically that would happen if we cure this problem, were we to say -- i see the human rights problem. what would we say, what would happen if we were to say no, this panel is wrong? what would happen if we cure the problem? the constitutional problem which the state excess as a constitutional problem, or the governor has said publicly that there is a tremendous safety and health problem in the prison?

what would happen? >> the court were to conclude that the three-judge panel should not have been convened, or 137.5% was not it would go back to the court of equity. the receiver is in place. he has a complemented -- up plan in place which is implementing as we speak. >> they did not come up with the 8 million but they came up with that. [unintelligible] there is a footnote in latin that says it is dependent [unintelligible] it ultimately may not be forthcoming.

>> $400 million of that has already and spent. the other has been earmarked for this particular purpose and the expectation from the state of california is that that money is going forward. construction is as we speak under way. [unintelligible] >> you said earlier that this was a done deal. but this is a note telling us not so. >> the receiver is saying it is not etched in stone. i understand that. our assumption and our expectation and our belief is that that money is going to be used for construction. there were projects that are finished. there are produce under way, and project scheduled to begin within the next six weeks. all of which will be funded out of that 2.3 $5 million. >> the legislative budget committee said know. >> ask for additional

information, to be sure. the expectation from the governor and the governor-elect is that that money will ultimately be approved in that facility will be built and we're moving along very rapidly to get that construction under way. we're talking about an enormous facility under these particular circumstances. >> mr. phillips, my trouble listening to you is that it seems as though you're asking us to refund fact. you have these judges who have been involved in this case for 20 years in one case. who have done everything they can come up the receiver has done everything his can, this is not going anywhere, and it will not go anywhere until we can address this root cause of the problem. that was the view of the judge's within closest to the cases from the beginning. in the view of the three-judge court generally. without refining the facts that

have been in place for 20 years first of all, remember that the receiver phillips of motion for up three-judge court, and it convene this up before the receiver has even finalize the comprehensive plan to bring everyone into compliance in the first instance. the reality is that that is the fund a mongol error that i it -- i am asking this court to correct. if you look at the primary cause analysis, it seems at best a mixed question and it is the kind of standard that this court ought to analyze to determine on independent review whether or not the overcrowding is the primary cause of the violation, and what makes that inquiry particularly important for this court rather than deferring to the district court, is that the district court arbitrarily cut off the record in august 2008.

>> it was confusing in the brief. i thought that the state had said we do not walk the plank to tour the facilities and more. we do not want discoverer to go beyond from 2008. i thought it was the state that was searching no more discovery, no more inspection tours. how could the plaintiff do more than they did when the state said it is enough? 2008 should be to cut off. >> there is a huge difference between not allowing formal tours and all the mayor richard the rigmarole that goes with it which is what the state specifically objected to. what the state wanted to do it

and others was to bring forth evidence to prove that in the period of time there had been significant improvement. as i sit here today, justice kennedy, they conceded that the brief that we are in constitutional and have been in constitutional violation. [unintelligible] >> you can see that it is a constitutional violation. you have the burden of selling -- of showing that this was generally solid. >> [unintelligible] sitting good idea what justice ginsburg's question first? we're talking about an order under the prisoners litigation reform act. it is quite clear that that

statute could not be any plan of its shifts the burden on to the plaintiff when you're going for remedy as extreme as insisting that somewhere between potentially 36,000 or 40,000 inmates be released in a certain period of time. at that time that all this was in place come up the receiver had been appointed and had had in knowledge spending an enormous amount of money, $4 million on health care, to get the system through -- moving in the right direction with the right attitude in order to bring itself into constitutional compliance. we have napoli had an assessment of where we are in the constitution which we have not really had an assessment of where we are in the constitution. what about the one in 1990? >> it is a much more serious problem. i do not doubt that.

if the court were to conclude ultimately that: ought to go back for another analysis based on problems there, i could understand that. it would be a very different puller -- prisoner release order under those circumstances. even then, it seems it would be a mistake and to the circumstances come up with a special master receiver joint at the hip in a variety of ways, and it only makes sense that the receiver is controlling the professional medical care in the cdc are and the special master is taking care -- it is a very small slice of that. in the scheme of that, the receiver consistently gets the ultimate authority to make the decisions to help provide that kind of resources for the quality and quantity and staff and construction and access to health care. >> council, if this issue about evidence -- due to proffer to

the judge anywhere in this record what the additional evidence was that you wanted to show? i know the decrease in suicides happen post-trial, so you could not show that pre-trial. but i presume that you could have yourself without discovery set forth the proper for the court that says we have a way time between diagnosis and treatment that was 60 days, 90 days, when they did 20 days in the past, and we have reduced that down to two weeks. or whatever the reality is. >> because the district court could not have been plainer. when the council stood up and opening statement said, i want to start talking about the beneficial changes and where the status is today as opposed to where it was clear back when,

the three-judge court said we had been as clear as we can be that we're not entertaining any evidence on that. baker the notion of coming forward with a proper, it was a and we get annoyed the judges by making reference to. it's not an appropriate response to say that we should have put forward more. >> you did not have to proffer it. you could say that we are no longer constitutionally violating this. instead, it says we will take whatever you have to proffer to show that it is inappropriate. >> i am not one to tell you exactly what the constitutional violation is today. we will not get into that. we're going to assume that there

is a constitutional violation. prove to me now that the remedy will work under the circumstances. it seems to me that the opposite is the way to do it. >> the speakers time is about to expire. again thank you, chief justice. >> mr. spector. >> thank you. mr. chief justice, may it please the court. for 20 years the over crowding has caused prisoners suffering from psychosis and life- threatening illnesses to language in their cells because treatment facilities have no room for them. visitors are committing suicide -- they are committing suicide at a rate twice the national average.

>> you're talking about current figures are passed. >> that is from the trial court's opinion. >> that is what i thought. had you address your adversaries. at the adequacy of the remedy cannot be measured unless you measure the state of the situation at the time to remedy is imposed? >> i think, your honor, there was a massive amount of evidence about the constitutional violations that existed at the time that the remedy was imposed. i can point to the traditional statement of one appendix, page 30-day, the court said nonetheless, as we described below, fundamental constitutional insufficiency is caused primarily by overcrowding and continues to exist. >> any evidence? >> with all respect, that

massive amounts of evidence up to the date of trial about all the conditions as they relate to the remedy. to do or they entered into the record? >> current as of the time. >> what was your friend talking about when he said that they rejected the effort to show the current situation? >> my friend and i have a disagreement. i think justice of a mile or -- justice sotomayor captured a. you cannot -- this is not the place for you to come in and say everything is fine, everything is constitutional. with a three-judge panel said considered all the evidence, they have experts from the state, toward the prison in august 2008, the experts' reports, they testified about the conditions, and one of them

-- i was the time of the trial, your honor. >> they have a cutoff date of some two months before the trial. but before that, the experts that testified were where the conditions that existed. >> exactly. >> what was the remedy imposed? >> the final word -- the close of evidence was in december 2008. in the three-judge court, they closed evidence in december 2008. we then argue that case in the post-trial briefing in february 2009. then the court came out with a tentative decision about 20 days later, and in august 2009, it issued the 183-page opinion of an order. to get what we keep track here. the evidence was cut off when in

2008? in the trial close in december 2008 after all parties had submitted all evidence. to and then there was a post- trial briefing for a month. then we had arguments in february of that year, and then a few weeks later, they issued a brief summary of their conclusions in an attempt to get the state and the party to settle. >> you do not dispute the statement of the response of the intervenors that between october 2006 and october 2010, the population of the adult facilities declined by 40,832 inmates? >> i agree with my friend mr. phillips that the population has declined by about 10,000 prisoners, most of that decline due to transfer to out of state prisons. there is some amount as of

assault of a marginal increase in good time credits which the state elected to pursue on its own. >> what about the argument that there was evidence that should been administered that was not with reference to new construction? >> there was no evidence that was not considered by the three- judge panel, your honor. they considered all the evidence. there are -- there 183-page opinion is scrupulous in considering all the evidence in supporting the order in distinguishing the evidence and credibility determinations based on the evidence. >> could you explain what the connection is between the 137.5% figure and the constitutional violations relating to the provision of medical care in general and treatment for mental illness? my understanding of the 1 37.5%

figure is that that has to do with the total number of prisoners in the system, in relation to capacity. >> that is correct. >> that does not speak to the number of personnel who are available in the system to attend a medical needs for mental illness. it does not speak to the extent of the facilities that are available for those purposes. it seems to be -- there seems to be a disconnect between those two. could you explain why that is? >> the court made findings the 137.5% was the maximum number of prisoners for the design capacity of the prison that would enable the state to provide -- have all those things that you just mentioned --

staffing, facilities come up medication management -- be effective and reach the actual prisoners who are seriously ill. shouldn't that is what i do not understand. could you not have the prison where the cells are somewhat crowded, and once hundred 37.5% of design capacity is not unconstitutional in itself. >> it is a remedy, your honor. cheating you could have the prison where the cells are crowded and yet there are other facilities available for medical care and plenty of staff to attend to those things. what is the connection? >> you are right. if the cells were crowded but the prison at all the other facilities available, then there might not be a problem. i hope you can understand that in this case, the prisons were built to double sell the prisoners but not built to

provide to under% of health-care needs. as -- 200% of health care needs. they're literal housing needs were in the cell, but they could not meet the needs of the health care. that is why the 137.5% figure is reasonable. the court went almost 2 1/3 overcrowding above the u.s. experts recommendation. >> why would the release of over 40,000 prisoners, many of whom are not going to be within the class and either of these lawsuits, why would the release of all of those people rather than ordering the provision of the construction of facilities for medical care, facilities for the treatment of mental illness, hiring staff -- why are they directly to the problem rather than addressing what seems to be a different issue altogether?

>> i have two responses to that. first -- it is important to understand that this is not a release order. it is a population overcrowding reduction order. the court is not ordering the state to open its doors and release -- and reduce crowding with transfers. if the states so chooses, it can construct new facilities to increase the capacity, and the three-judge panel said if you increase the capacity, and you can increase the population. >> all they do is build more cells and not address the problem. >> that goes to the second part of your question. why don't they try other things like ordering the prisoners to hire more doctors better medication management, all those kind of things? the answer is in the appendix to the brief whip's list 70 discrete orders which the

coleman court tried over 15 years which has been proven to be ineffective. that is why the court analyzed all of those things and make a finding of fact that based on the statements by the special master, but the receivers' report, and by the general state of the horrendous conditions which we have in these prisons, those discrete orders would not solve the problem. given the level of harm -- >> i still didn't get it. they did not comply, and in order to provide some kind of remedy, we're point of order something else that does not address the problem. these lawsuits aimed at addressing them. >> to the country, i think the court believes that based on the facts that it found that this would be an ineffective remedy. all of the testimony that they heard from experts from texas,

pennsylvania, washington state, all of whom had suffered and dealt with crowding in their systems, said that when you reduce the crowding, that is the critical thing that you have to do now. unless you reduce the crowding, nothing else is going to work. the court found that that was exactly true. nothing else -- over 20 years, it in one case, and over eight years and another case, that has worked. massive amounts of evidence shows that the primary reason it has not worked is that overcrowding. when you reduce overcrowding, the prison can operate and provide those services that it cannot provide now because the doctors will have room to be able to work, which they do not have now. officers will be able to take them from one place to another to get treatment. there will not be so many lockdowns. ofit's an indirect way

addressing the problem. it has collateral consequences. if i were a citizen of california, i would be concerned. the release of 40,000 prisoners -- i do not care what you term become a prisoner release order or whatever, but 40,000 prisoners are born to be released. you really believe that if you were to come back here two years after that, you would be able to say they have contributed to an increase in crime in the state of california? in the amicus brief extended by at couple of states, one discussion of one police religious order in philadelphia, after a period of time, they tallied up what the cost of that was, the number of murders, the number of rapes, the number of armed robbers, number of assaults. that is not when happened in

california? to in the trial court found based on expert testimony, not only from our experts from from the state's experts, they all came to the unanimous conclusion that there are methods by which you can reduce crowding which will not increase crime in our state. the secretary of the department of correction, the secretary at the time of trial, testified that he was in favor of increasing prisoners good time credits. that is one way to reduce crowding. moreover, there was physical evidence looking at all the other states that reduce the prison population over period of 15 years, and they all came to the same conclusion. although studies came to the same conclusion. there is no increase in the crime rate. >> but that's not what the

three-judge district court determined. the prisoner mitigation reform act requires that court to give substantial way to adverse impact of safety. that set the stage, you come up with a plan that gives you to 1 37.5% in two years. the state did and the state did not say emphatically this will have an adverse impact on public safety. sorry for the double negative there. what the district court said, it did not examine this. we're sure the state is not born to do anything that has an adverse impact on public safety, from looking at pagea 4atof the jurisdictional statement. in these to get substantial way to the public safety issue, and as a basis for overturning the

remedy here course -- and i respectfully disagree with that. >> i thought that you would. [laughter] at least it was respectful. >> i'll tell you why i think that. the court examined all the methods that are commonly used and the governor himself has proposed to reduce crowding. the governor himself wanted to reduce the prison population by 37,000. that was in one of his legislative enactments, and the secretary of corrections testified that those numbers were safe. >> did he want to do it in a two-year period crush margin yes, your honor. he submitted legislation to the legislature for that. not takelatioure would it. he said reacting after a riot at one of the presence in california, he said that the

politicians in sacramento have swept the problem under the rug. shouldn't my question is specifically to that two-year plan and not like an answer to that. i do not see that the district court did what was required by the act with respect to the planet was ordering. it just said that the state would not do anything to hurt public safety, after giving the state two years. >> it did not analyze the plan because the court was trying -- well, there was no plan. the court, what the court did was to say, we want to give the state the maximum flexibility for comity reasons to determine how best to eliminate the constitutional violations. i am certain they also said that this -- they were sure the state could do it in a safe way.

>> i am quoting, but we trust that the state will comply with this duty to ensure public safety as it is the constitutionally required production. the state is saying that it cannot meet it without an adverse impact on the state. to and that is the state's position and has been the state's position all along. the court's finding that a reduction of this magnitude is clear and the court said. like -- said. like -- said pointblank that it can reduce to 1 37.5%. it was shown to be clearly erroneous. they did not factor the particulars in an effort to give the state the maximum flexibility to -- that they want the state to choose the methods that they wanted.

>> of course they could do it safely. if they'd had you prisons. did and that could also do it safely by a good time credits. >> do good time credits let people out that would not otherwise be out? >> the evidence was and the court's finding about that evidence was and the state official so testified that giving -- giving prisoners good time credits was not a threat to public safety. >> why would it not have been the better course for the state to say he can do this in five years without any public safety problems. what we let them take those five years? >> because, your honor, as justice ginsburg and others have said before, the constitutional violations have been going on for 20 years.

we're dealing with cases of life and death and serious injury. after all these years, when they heard the evidence that said that population -- and then make the finding, which the state does not argue was clearly erroneous, and in those findings that it could be reduced safely, they have an obligation to provide constitutional adequate care in the safest manner poppel -- possible. [inaudible] >> didn't that district court discussed different safe ways of reducing the population? they're saying they're not opposing them because they want the state to choose among them. in the state's final plan, i

find the basis of fact not only accepting all the recommendations but they added a couple of additional remedies that the court had not suggested. shooting yes, your honor. it is a fair statement that the three-judge panel was saying, if you delete things, that is their findings? you could do it without affecting public safety, wasn't that what they were saying? >> if i did not make that clear, i meant to. >> something that justice scalia asked you -- you made the statement that no one was dropped from proffering conditions about -- evidence about conditions before the trial. what evidence was excluded? at what point is the other side making that they were excluding from making? and as we said and our briefs, there was no evidence that was excluded.

the state's witnesses testified about conditions current as of that date of their testimony. it was very current and nothing was excluded. the court may ruling in error which we do not believe it was. >> i was puzzled by the same thing that justice sotomayor was. i read on page two under 53 of the appendix, a conclusion for the district court said that they can reduce it by how many people -- 30,000? that is a lot. 35,000, that this could be done safely. there are about six pages where they summarize evidence of all kinds of criminologists that say that there are 17,000 technical parole violators that are being sent to prison who have not committed additional crimes and could be perhaps for some of the

time that they are staying in prison. then they go on to this good time, people who are 50 or 60 years old, in prison for 40 years, could be released at age 55 instead of age 75. i guess there's some category there. they had several other things. >> in the results of testimony, the department of corrections was using a risk assessment instrument to identify the low risk prisoners. >> isn't it true that one of the main programs that was cited as providing a safeguard is evidence-based rehabilitation programs? >> yes, your honor, all of the witnesses from the state and local witnesses, they all found that those would help reduce crime and would be most effective. to do what is the general

success of rehabilitation efforts? >> we cannot say generally because the programs have different -- >> what about the sentencing format. >> i do not know. >> i have this question which goes just a remedy. the district court has to be given considerable discretion. it shows 1 37.5% figure because it is between 100th 35% and whenever 40%. -- 137.5% figure because it is between 135% and 140%. there was substantial expert opinion that 145% would be sufficient. tosn't the evidence indicate you that at least 145% ought to

begin -- ought to be the beginning. maine? wrong. correct me if i'm or experts testified that 145% rather than 130 was necessary? >> i respectfully disagree with the record. the water 45% figure came from a report from former gov. and they said that they could operate a credit system and 145% of capacity. that figure was high, the district court found, because it did not take into account health care needs. >> that is the issue here. our experts testified that because it did not take into account health care needs, 137 -- whether to 30% was a better number. it is the number that the strike team that thought of the month

the administration's own strike team, and the number that these professional experts believed would be sufficient to remedy the population. to answer justice alito, the health care facilities themselves were built to provide services to only 100% of prisoners. >> the experts who are testifying were quite aware of the fact that overcrowding related to the constitutional violations. any number of them suggested that one order 45% -- >> only one expert suggested 145%. the majority experts suggested with a 30%. it has not been challenged as clearly run is that the weight of the evidence went to 130%. they wanted to minimize --

maximize the population, even though they'd found that the courts at temple basis to issue an order saying it should be 130%, they said to give the state the benefit of the doubt and make sure that we get it pumped it up, and additional 7.5%. >> i see no evidence that 145% would not work. >> maybe you can answer. >> my recollection of the testimony was that our experts said it had to be down to 130% in order for the other remedies to be effective. >> the experts being the one for 45% -- order 45%. shouldn't there was maybe one has spurred the said in the best of circumstances you get to

145%. he was a psychologist who had expertise in prison health care. >> he said that at 145%, you could deliver healthcare safely. >> at the outer reaches, it might be true. i want to emphasize that the district court has allowed the state to come back at any time to modify its order and to modify this percentage point if the circumstances change. >> there have been at least two significant changes. california did pass a law that up the good time credit and also addressed deprivation of parolees, technical violators, to promote them through the

system. you have any information about what that legislation, passed since january? today i think it went into effect of july of last year. >> do we know at all what effect it has had? >> it has have a marginal effect on reducing the population. there been no reports that it does lead to an increase in crime. >> to get back to my earlier point, justice kennedy, about the remedy -- this order is set to take effect over a two-year period. during that two-year period, he is correct that our conditions are unconstitutional and they can deliver services at 145%,

then the state is free to come in and make a motion to bring those change circumstances to the court. and the court has been incredibly sensitive to the needs and desires of the state. it was extremely reluctant to end its order in the first place. and it would bend over backwards to give the state discretion. >> i do not see a finding by the three-judge court that the 145% would not be an efficacious remedy. i know that it went for one with 37.5%. -- 137%. should i don't think it said it explicitly, but it discuss the figure in context of the fat that it could not provide for health care services. it came down about 7% but it came close to it, i believe. >> let's say that you had the

district court entering on order saying that you had to bring it down to 137.5% in two years. that was sold in the release of 40,000 prisoners. the state comes back and makes a showing supported by experts saying, look, if you give us four years, we can reach the figure without releasing any prisoners. would it violate the prisoner litigation reform act to say that it needs to be done in two years, not quite true years? -- not quite true years? -- four years. >> under those circumstances, under those hypothetical circumstances, there is always the possibility that the degree of public safety problems might

outweigh the harm. that is not this case. they found that they could do it -- the three-judge panel found that they could reduce the population safety. and there was no suggestion in the record that the period would make that much of a difference. california releases 120,000 prisoners every year on parole. that is a lot of prisoners. the findings of the district court is that even when california increases the number of parolees in the communities, that does not increase the crime rate. jim what is the recidivism rate for those parolees? jindal depends on the parolees. >> in general. >> overall the risk is around 70%. for low-risk prisoners, the risk is 17%.

>> was the first? >> of all parolees altogether, it is 70%. within three years. that is the situation we have now. and that is the situation for the governor, the secretary, what the court described this as a failure. the court described how you could do that. >> for low-risk prisoners, it is 17%. genin there was a risk assessment instruments that the court found could be used the what happened in philadelphia does not happen again. >> if only the lowest people are released around 3000 of them will commit another crime. >> but they do not have to be released. i want to make sure to emphasize this. this is a crowd reduction measure. you do not have to release them.

>> if you can build enough cells. >> or you can improve the parole system so that parole violators do not commit some many crimes, rehabilitation alternatives, if