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.

marriage. th is live coverage on c-spa

>> 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 ne 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 exale, 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 mix-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 absole 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 rional 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 belie 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 relationshipetween a man and woman, no matter how close, no matter how comtted 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-parentnd 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 mb -- 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 o 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 bas 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 together. 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 califnia 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 quotationf 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 ratiol 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 hor, it wasn't right. they were doing much more than that. it they were essentially opening days and lesbis to private and public discrimination and disabling any governmental body from

intervening in that private discriminati. as justice kennedy and besides. -- emphasized. in common everyday civic life from banking,o 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 annterest 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 fars they relate to challenges to traditional marriage laws just ke 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. at 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 urt, 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 und 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 qution is canou 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 peopldid it before a california supreme court decision or after a california supreme court decision. if the california conitution 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 had been enacted before that, the constitutional case tt 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 constituon is violated then and there by what they did >> if yoare 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 rson 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 ere 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. soif 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 toou 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 seled 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,ur 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 suppor, is that the people themselves are a tribunal over

theironstitution, standing in those types of shoes democrat the people of california -- suppose proposition -- >> could the people of california -- suppose proposition 8 in addition to addrsing the subject of marriage had donin 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 theame, 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 oposition? 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 wt the federal constitution demands -- and if it goes beyond what the federal constitution demands, the 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 h simpl-- >> 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 rationa 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 rightslready giveno those homosexuals and domestic partnersp rights? i am asking you saight 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 constitutionalosition 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 t read the magic -- rational basis? >> i believe it is to preserve the institution of marriage for the purposes that it has always served, the unique purposes that flow from the unique interest in that society has that in turn flow from the unique procreative, nural procreative capacity of men and women. the courts that have upheld the traditional definition of marriage have uniformly noted that it is entirely rational for

-- in fact, the eighth circuit in the brunning case and dealing with a proposition from nebraska that contained identical language to proposition 8, that it was entirely rational for the people of that state to confirm -- comfort and retain inducements and benefits of the institution of marriage or oppositeex couples who can procreates and including procreate unintentionally, creang unwanted pregnancies that threatens the society's interests, and not extend marriage to same-sex couples who simply don't represent that same societal interest. the interest of 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 ratnal basis justice o'connor elaborated in lawrence? >> your honor, if this case was to be decided b 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 difrence. i do not think, as an original matter, it would be constitutional if congress h 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 th 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 constitutnal 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 constitutn and the united states is the fundamental right of its citizens to marry. mr. cooper defined that as it has always bee 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 constutional 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 unconstitutional under rummer and reitman.

i would also say, judge reinhardt, a gay marrie 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 alssay -- >> is dependent upon our finding that they would be taken away constitutional right? >> no. the right of maiage is the right of an individual. mr. cooper talks in right of

society. society's intest in procreation. it is not society's right. thrights 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 relationo 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 additn 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 ratiol 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. thatas 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 gettingmarried 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,hey 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 proposion -- 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 t justice kennedy, it says we must look further than that. we must look into the reasons and the must make sense. they cnot be attenuated and they can be motivated by the fear of people we do not lik or minorities. it has to be more than that. most of all, it haso 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 t 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 ople from getting married. it will not keep them from getting divorced. it will not have any effect at all on their choice of having chdren. 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. coor, 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 vo 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 thainstead o witnesses who talked about the history of discrimination, the damage that discrimination has done, the immutable

characteristic we are talking about tt 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 youere to go to and imagine on a rational bis standard articulated along the lines that you did, which do not think is the test, i do not think that is all consistent with claybur 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 proted 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 thisase if you naturally drawn to th 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 pcreation, 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 t

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 expes 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 cntry. we would be closer to the american ideal of same-sex

marriages were committed. now, it is easy tsay 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? >> ielieve 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 sutiny are all present and you would bbound

by what the supreme court has said. i think that case supports exactly what i news just saying. >> t 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. [lghter]

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 ere 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 peoe 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 cognized 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 cafornia has been closed within the other fence. that is aiolation 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 theircumstances 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, wther 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 wou 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 talkbout 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 n, 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 prefeble, 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 ttheir 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 tre 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 propositio8 is largely symbolic that while commanding stature it makes the insults that the measure visits on lesbian and gay coles 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 ishat 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 pp. 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? >> thankou, your honor. just a few moments if you will, please indulge me. mr. alden -- mr. olsen spoke of thlevin 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 neln rejected that

claim on the heels of loving on the gay couple who brought that claim relied on loving very heavily. we also thi 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 ofeing 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 -- t 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 ggests 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 distitions 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 quily 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 carly 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]

hosted by the american institute of certified public accountants. this is live coverage on c-span2, and it's just getting underway. >> we wanted to find a way to provide greater assurance to investors, that their accounts actually held the money that their investment advisers said ey held. we enacted rules called upon independent public accountants, to serve as a second set of eyes in support of our investment adviser examination team. the rules mandate annual surprise examinations of advisor held accounts, by independent public accountants. in addition, when an adviser or

an affiliate service as custodian of client assets the advisor must obtain a written report prepared by an account that is wretched with the pcaob to assure appropriate internal controls are in place to prote client assets. as a result of that rule, we believe it will be more difficult for an advisor who has misused investor assets to get away with that. currently, we are contemplating ways to further leverage by updating the custody rule for broker dealers as well. that rule requires auditors to provide assurance that the numbers are accurate, as well as controls and compliance. but the rules 1785, was first implemented nearly 30 years ago. and so, among other things, we are consiring strengthening compliance controls over the commissions founation of financial responsibility and customer protection requiremen requirements. we are considering preparing a 21st century foundation on

which the pcaob can implement its new oversight authority over broker-dealer audits. we are considering eliminating regulatory overlap for broker dealers that are also ustodians of a registered investment advisor. and we are considerg enhancing oversight of broker-dealer custody by providing new information and tools to regulatory examiners. once more, our actions will underscore your importance to the financial system. of course custody rules have been far from our only concern recently, and our efforts range well beyond areas that directly touch the accounting profession. i think it's fair to say that our investor protection efforts have been in overdrive for the past two years. since i arrived we have revitalizrevitalized our enforcement in examination units so those that may be tempted to harm investors have a real fear of being caught. we adopted comprehenve rules to strengthen the resiliency of money market funds and rules

that give investors better information regarding the qualifications of their advisers in the keys they are charged. we begin a detailed review of the structure of today's high speed computer driven market, review that to respond quickly to the events of may 6 with circuit breakers and other measures intended to reduce the chances of another similar event. and more recently we have stepped up efforts to increase transparency in areas that may bleed six democrats like the asset-backed securities market and private funds. and since the passage of the dodd-frank act, we have begun to great the contours of renew record regime ran over-the-counter derivatives. these are just a few highlights of a robust rule-making agenda that is the cornerstone of our efforts to restore faith in our financial markets. but rule-making and our old reforms are not enough to achieve that goal. i believe that effective coordination between regulators and accounting professionals

must be an important part of that effort as well. in fact, in our quest to restore confidence, there is one area in particular that we cannot dismantle without your help. one barrier aainst which you have to lead the fight. and that is the investor skepticism that sprang from a decade that they perceive as markedy restatements, misleading windowdressing and quarterly reports, and off-balance-sheet exposures that prevented them from making fully informed investment decisions. the fact is that any central touchstone of functioning capital markets is an investor's ability to get an unvarnished assessment of a company's financial condition. that is why the foundation of successful markets is accurate and transparent financial reporting. and honest verification of their reporting by independent objective party. and the commission's role in promoting uniform principles for

these vital tasks is an important chapter in our history. while accurate and transparent reporting begins with a detailed reporting from every corner of an enterprise, which generates numbers that actually add up at the bottom line, it doesn't end there. that's beause accurate reporting is also about timely, full, and fair disclosure of those numbers. it's about getting to numbers that mean the same thing, from company to company, and from country to country. and it's about pushing back to assure yourselves that investors can rely on those numbers. i appreciate that you have a difficult ob, translating and increasingly complex and global financial world into something that can be understood, not only by market professionals and regulators, but by individuals with less investment experience or sophisticated financial training. and i recognize that your responsibilities are only growing, as we all appreciate today's capital markets are far

more complex than those navigated by the accountants who form the aicpa's predecessor organization, more than 120 years ag. yet your profession fundamental role remains more important than ever. as spelled out in your code of conduct, your obligation is to discharge her duties with integrity, objectivity, do professional care, and a genuine interest in service to the public. that is why we see your profession as an important line of defense, an ally in the effort to protect our markets and the quest to restore investor confidence. of course for most investors the most visible front in the sec's fight is our enforcement efforts. one of my top priorities on returning to the commission was restructuring our enforcement unit and streamlining our enforcement procedures. today, our enforcement teams continue to pursue cases stemming from actions that contribute to the financal crisis of the past several

years. these have included successful actions against countrywide, american home mortgage, new century, and citigroup. in these cases public companies failed to disclose millions of dollars in losses and billions of dollars in exposure to subprime mortgages. these material facts, when unidentified, or were in some cases actively concealed by the prepares and executives charged with making them public. their failure is not only caused immense economic damage to shareholders, but to the financial market and the economy as a whole. we ctinue to demonstrate our willingness to prosecute those who betray the trust of the public markets. but bringing actions after the fact is no substitute for full and honest disclosure at the outset. enforcement actions are cold comfort for investors who lost their savings after relying on misrepresentations, or half-truths. into many investigations, we

have been struck by the magnitude of the misrepresentations we uncovered. even when these investations lead to high profile charges against ceos or cfos, comptroller, as in the type of cases i just mentioned, they can also raise troubling questions about the many others involved in preparing and auditing the filings and reports. we wonder if questions could have been asked early on by prepares and auditors, or if warning flags were ignored. we wonder if the eventual losses to shareholders and investors were multiplied many times because material information was not made available in a timely fashion i people who should have been able to produce accurate disclosures. rather than acc prosecution after the fact, shareholders should be able to rely on accurate accounting and effective auding of front and through transparent financial reporting. i urge all of you to ask yourselves the critical questions when you scan with the

numbers. questions like could i be doing more to ensure that the information is accurate? are the results i am reporting an exercise in wishful thinking, are a true report of actual results? do i understand the company i am auditing well enough to recognize red lags, and have i taken all necessary steps to respond to them? even if the numbers that are reported are accurate, do they convey a fair picture, or is there a need for additional disclosure? d if you these questions do not yield the answers you need, i urge you to have thecourage to challenge those aswers, a willingness to take your judgments about the quality of disclosures to the highest leve of management and to the audit committee. that said, we appreciate that it is not always pleasant to report results that are not ideal. and we know this firsthand. earlier this month the sec completed our performance and accountability report. it's really the equivalent of a

company's annual report, and we posted it online. our gao audit found that the financial statements included in the report represented fairly and in conformity with u.s. gaap. at we discovered to material weaknesses in internal controls of a financial reporting. while it's good to know what the weaknesses are, they are in no way acceptable. and we are already moving to address them. we will be migrating our core financial system to a shared service provider designated by the office of management and budget, one with proven ability to be the high standards the erican people deserve. just as we relied on our prepares and auditors, investors rely on you to find and identify weaknesses so that they can be addresd. your honest assessment of what the accounting standards invision, what a goo management team expects, and what investors and capitamarkets deserve. of course the challenge of

restoring public confidence is complicated by the fact that today's investors relied not only on accurate information about u.s. entities, but about entities across the globe as well. today, a tucson-based investor trading on the new york stock exchange may be trying to analyze a german chemical company with subsidiaries in thailand and chile, and a paris-based auditor. so the sec is working on several fronts to bring regulation in line with a more complex realities of today's financial world. to bring needed cross-border consistenconsistency to accounting and auditing. for instance, we are supporting the pcaob in its efforts to remove obstacles that have kept it rom carrying out its congressionally mandated responsibility to inspect non-us firms registered with them. i applaud recent e.u. decision that allows the pcaob to negotiate agreements with individual countries that will permit the pcaob to perform its

inspection role. and i look forard to the final agreements with individual countries that will allow those inspections to go forward. in this and other important areas, we are now looking forward to a pcaob that function with renewed energy and effectiveness in the months ahead. for many months, as you know, two positions on the board were filled on an interim basis by members whose appointments had expired, and one seat remained vacant. this was largely the result of a constitutional challenge to the very existence of the board. but with the supreme court's summer ruling, the sec is now searching for a new chair and two new board members. ensuring that these positions are filled with individuals of integrity and spotless reputations, and demonstrated commitment to the interest of investors, and the public, is a top priority. and we are now in th final steps of the selection process. i want to be the first to say that during these trying times i

think the board did an extraordinary job, but we are cited at the prospect of dedicated and highly qualified members taking their seats, and a board able to focus on their critical role without a legal challenge hanging over its head. in addition to the pc a obese negotiations there is of course another international issue of significant interest to the sec and to the accounting profession. in addition to international auditing responsibilities we are of course focusing on accounting standards and convergence. because investors should be able to make accurate comparisons and judgments regardless of entities line of business, ownership status, or corporate domicile. and so the sec continues to monitor the progress being made by the fasb andy iasb on the convergence of international accounting standards. as expected, the path towards convergence has proved steep and winding at times, but both boards have responded to the

challenges. for example, fasb and the isp launch intensified efforts to deliver issues jointly in monthly meetings which ill allow board members to discuss and resolve issues face-to-face. they have increased efforts to work to unify project teams which would members of both boards. and both have gave it to periodic public reports on the stus of their effort. i believe these actions will continue to increase the effectiveness of the collaborative efforts by the boards, and i'm sure that fasb acting chair leslie seidman and iasb chair sir david tweedie, we'll have much more to say on this subject when they join me tomorrow. convergence is a top priority for the sec, but it's both boards recognize the resulting standard in addition to being in uniform must be high quality improvements over current standards. constituent review and comment are important parts of the process that will produce hh quality standards that investo

need. for example, they were driving force behind the board's decision to modify and reprioritize the standards being developed under joint agenda. the resulting staggered schedule for issuing the boards exposure draft will allow for greater input by stakeholders. and this will create an enhanced ability to consider whether the standards result in a consistent, high quality, globally accepted accounting standards and solutions we all seek. hopefully, many of you that a chance to read the progress report by the sec staff that we posted in october. as you will hear later, the staff is highlighted several preliminary observations based upon their work to date, including observations on important implications related to different methods of corporations, the iasb funding model, and observations regarding the important role that could be playd by fasb if the commission were to mandate

ifrs for domestic companies. i am pleased with progress to date, and i remain optimistic about achieving a convergence that benefits invested in the u.s. and around the world. a significant portion of the work plan remains in progress, and the commission works for two preceding period reports on the step into making more progress in the year ahead. today, instors are trying to shake theirs giddiness. they are asking if everyone from regulators to accounting, doing the job they expect us to do. and that's a fair question. and because investor caution makes it harder for dynamic enterprises to raise the money they need to expand and grow, it's important that investors get the answers they need. i believe the sec is on track doing the job that is expected of us as a rule maker, an examiner, and a law enorcer. but the importance of the accounting professionals cannot be overstated either.

it's not just new rules and regulations that protect investors. it's accurate, honest and complete accounting i men and women who, as chief jusice burger wrote in u.s. v. arthur young, emonstrate complete fidelity to the public trust. our markets depend on competent investors, and their confidence rests in part on large part in ur hands. i know that's a great deal of responsibility but that's important role you play. the sec and other agencies can increase the confidence invested into our financial markets, but our effort succeeds only those inveors believe the numbers you write on the bottom line. thank you very much. [applause] >> okay, the first question relates to ifrs workplan come

and what a my personal expectations regarding when will the commission make a decision on dopting ifrs for u.s. companies, what is the commission likely to decide, and wh it's implementation likely to occur? okay. are not in the middle question. you know, it's still our plan to make a decision on the incorporation of ifrs into the u.s. reporting system next year. and despite a common perception that it will be by june of next year, we have not held ourselves to the june date. so sometime next year. we expect to be able to make a decision. one of the reaso we have the staff so vigorously engaged on the worklan and making their progress public is so that everyone can see the areas where we have concerns over the areas where we think significant progress is being made. implementation, one of the things we heard in respons to the comments when we republish

the work plan in february was a great desire, pretty much across the board you can while ifrs was not b any stretch uniform embrace the u.s. public companies, or by investors, there was a lot of unanimity around if we go in this direction allowing sufficint time for companies to adjust. so i think it's likely to be a minimum of four years, although again that a point for the commission after we make the more fundamental decision about the extent to which, if at all, we will be incorporating ifrs. next question is, some singular the sec's timeline requires the commission to address the possible adoption of ifrs by june 2011. however, that timeline was established before the passage of the dodd-frank wall street rerm and consumer protection act. given a significant amount of rulemaking that dodd-frank requires of the sec's in the

next 12 to 18 months, is june 2011 realistic? how does the demand of dodd-frank affect the commission's timeline? as i said, we are not strictly committed to june 2011 decision date, or rather sometime in 2011. i will say that while, you know, i'm sure you read in the pess we have been extorted amount of work to do with respect to dodd-frank, over 100 rules to write, many within the first 12 months, certainly within the first 18 months, 20 studies to conduct, a number of new offices degrade within the agency, i will say that on a small amount of that burden is falling on the office of the chief accountant, jim kroeker can probably speak to this later. much of that burden of dodd-frank rulemaking really falls on other divisions, most notably trading and markets for all other derivatives, regulation, division of investment management for the private nds, regulation and a division of finance for the new public company disclosure requirements that has been

decreed by the law. so i think we will be able to not have ifrs or other accounting initiatives delayed in any wa by the dodd-frank effort. many of those have commented on the possible adoption of ifrs by domestic registrants, have been larger companies, investors and audit firms. healthy sec identifies the issues and concerns of the rest of corporate america? i.e. the vast majority of domestic registrants, ivestors and audit firms who do not have the resources to write comment letters or to invest in preliminary and -- evaluations of the effect of adopting ifrs. it's a great question and one we've been very focused on, and in our workplan, you will note that we talk extensively about our desire and really need and determination to understand what the impact of incorporating ifrs

would be on smaller u.s. public companies who mighnot see the benefits, frankly, of being comparable and having operability with issuers in other countries just because of the nature of the shareholder base. so we are highly focused on the costs and burdens of smaller companies. we did actually get quite a number of comment letters that raise that issue. we try to make the comment process very simple. it doesn't have to -- you don't have to hire a law firm to write a comment letter. you don't have to do sophisticated analysis. you can e-mail to us to a comment mailbox. we try to make s simple as possible for smaller companies and those who can't expend the resources or the time to go out and hire somebody to write full-blown comment letters. so we have actually heard from lots of smaller companies come and our office of chief accountant has also made an effort to reach out to smaller public companies to understand the issues that they think ifrs

uniquely presents for them. but on that note i would encourage you to make sure that your clients views are heard at the sec directly. the next question, let me take a sip of water, on the disclosure project. about a year ago, we heard about a core disclosures project to review the commission's disclosure requirements and evaluate whether they should be revised to elicit the right, not more, disclosures. we haven't heard much about this since then, what is the status of it. do you think we'll see any action, anytime soon? when we announced the core disclosure project in our defense, i will say that it was a longer-term project. it was before dodd-frank was actually passed but we were anticipating lots of work ahe, and particularly for a

corporation finance division. but we did think it was a very important to put out on the record set at we could begin to get comment and commentary from others. our desire to really review all of our disclosure requirements from a-z, to understand what we have competitive disclosure, when we have disclosures that no longer are relevant, where we have gaps where disclosure might be more appropriate. and i would point perhaps to our window dressing proposal that we did in august or september of this year, one of those areas wherwe sa gapin disclosur as a way to try to take a coherent and cohesive look at all of the disclosure obligations,to minimize redundancy in particular. so we have an internal task force that is working on it, and it had been working assiduously over the past year. i can't tell you a timeline for when we might see the larger

picture unveiled, but it's still very much one of those projects, along with a market structure along with proxy, that we are not going to let be pushed off the agenda just by the exigencies of the current rulemaking workload. what changes have been made or are anticipated to be made to the sec's internal structure to meet the deadlines imposed by the odd frank act? for example, you've indicated you expect the commission to hire a number of people to meet the mandate, can you discredit in general the skill set that you pect to focus on, lawyers or accountants -- accounts? and in what are do you expect about the most people. you know, have, we are often criticized for being an overbloated agency, and i take exception to that, not because i'm a lawyer but because we are inside a law enforcement agency.

so our lawyers are very important to us and we also write a lot of rules and we do in the law. that said, there's a great need at the sec for our accountants the really critical to almost every division and every function we perform. but also for some less traditnal skill sets in the context of the work of the sec. so we've been bringing people om trading desks, from investment banking firms, from credit rating agencies, from hedge funds, from financial risk analysis organizations, from risk management operations within all kinds of financial entities. and we've had tremendous response to the positions that we have posted, including in areas like quantitative analysis, which has been very exciting for us. and in just the last year, in terms of the numbers of people we have brockton with new skill sets, they are not huge numbers, but they are significant. they are high focused for us in

the recruiting area, and they are making an enormous difference. i can say that when we had to reconstruct the train from a six, which is a convoluted and difficult process in equity markets i because there's not a single consolidated audit trail, it letss look at all the order and transaction data in one place. we have to assemble and analyze multiple different audit trails, formatted in different ways with different data contained in each of them. had we not have some of our new risk management employees and people who were used to handling massive amounts of data, it might've taken is even longer than the project did take. soe are finding that in enforcement as well, people with expertise and structured products, are enormously helpful to us in understanding some of the products that wall street introduced over the last sveral years, with her impact was on the market. we are looking at algorithmic traders having, help us understand how they operate in

different markets,tress and is, enormously helpful. so throughout the organization we have really tried to focus on bringing in skill sets that help us keep up with wall street a little bit better. in addition we created a division of risk, strategy and financial innovation which has been a focus for a number of these new skill sets, but they argiving us the ability to think about how to connect the dots more effectively and have to take a mre interdisciplinary approach to some of the problems that we see. so, it's a work in progress for sure, but it's a very exciting toee the sec bring in some new talent. lots of dodd-frank questions. we will move away, proxy access. the commission's proxy access rules are being retooled and

reviewed will this cause the rules do not go into effect as proxy season, if the ruling strikes down some or all of the new proxy asset rules, what do you expect will happen next? well, when the sec was sued by the chamber and others over the proxy access rules, we actually made the decision to suspend the effectiveness of the rules during the litigation. we did not want companies to go to the proxy access process, and he left in a very difficu situation if the court in fact invalidate the rule. so they will not and are not in effect for this coming proxy season. if the ruling strikes down some or all of the new rules, what happens next totally dends on what the court says to us. and there could be a range of outcomes there, and i really would want to predict what those might be, but we will have to see what the court says, and respond accordingly.

i would say that we feel very confident about the rules. we think that they were well done and done for all the right reasons, and will improve governance in this country there and so we're going to obviously defend them in the court of appeals. there's a flashing red light here. >> unfortunately we're out of time, but please join me in thanking chairman schapiro for please proceed.

>> good morning, your honor and may it please the court, i and arles cooper and i represent the appellants in 10-1966-96 the appellate artificial proponents of proposition 8 and the official campaign comttee. there are two juriictional 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 proponts, 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 attendanceth court allowed the spker of the assbly and prident of the senate on behalf of the legislatureo 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 bere or after his arizonafficial 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 t

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 whh 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 vy 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 se 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 mak

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 a 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 authori 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 legislive officers in that case had authority to represent the state's intest in dending 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 propones 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 sauss 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 autrized 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 o 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 comssioner 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 yr 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 yr position she is found by the junction? >> yes, your honor. i thought your brief said tohe 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 ste registerear be bound. dge 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 ste 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 termined 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 thclerks 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 clers 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 ca 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 interve, 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 y-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 generais 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 licses. 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 efforto get a mandate requiring the attorney

general to appeal. that wasimply 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 issueith 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 oer 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 issuef scargay 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 gernor 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 aft 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 not believe it would be necessary. >> the attorney general could have spped 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 nam 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 aeles 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 districtourt decision, but they could have based on the district court decisio 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 leglation could not amend them unless approved by the voters? to god that is correct, your honor. >> if that is so, iuess 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 answeis 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 contry to a system where the government is not allowed to to this measure but he can an effective veto it if he and the attorney generawill 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 thathey 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 californ appellate courts and the california supreme court said in a proposition 22 litigation, that it is clear that whenever the intervention rights maye, 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 quick if they would like. >> i think if you concluded that it was unclear and concluded that thawould 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 out the arizona initiative that what she wanted to kw 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 legislatur 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

ate. 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 --rovide 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 ithstate supre 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. >>f 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 l 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

woulde 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 uld 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 belve so,our honor. >> you are suggestg 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 awaref for that. >> you are sayg 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 dictly 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 californiaho 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 theerits 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 imptant 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 constituonal and policy reasons that underli 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 integrate 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 dendant 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 on 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 particite

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 gro 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 youery 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 pointininitiative 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 senaterings is -- to the supreme court? they bught in a jersey supreme court decision aowing 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 neral 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 ste. 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 officersrought 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 intervene, to do so, standing alone. judge reinhar, 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.

marriage. this is live coverage on c-span. >> good morning again, mr. cooper. >> good morning again, mr. your

honor. we are engaged in an earnest in profound debate about the meaning, purposes, and definition of marriage. the issue is a momentous one. it goes to the very nation -- nature of a nation. 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.bun 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 unique purposes that flow from the unique interest in that society has that in turn flow from the unique procreative, natural procreative capacity of men and women. the courts that have upheld the traditional definition of marriage have uniformly noted that it is entirely rational for -- in fact, the eighth circuit in the brunning case and dealing with a proposition from nebraska

that contained identical language to proposition 8, that it was entirely rational for the people of that state to confirm -- comfort and retain inducements and benefits of the institution of marriage or opposite sex couples who can procreates and including procreate unintentionally, creating unwanted pregnancies that threatens the society's interests, and not extend marriage to same-sex couples who simply don't represent that same societal interest. the interest of societe -- society that are vitally implicated by sexual relationship between opposite sex couples are not implicated in the same way. mye