provisions. what did you hear? >> he was noncommittle on it. but those are the thing that is is going to engender the most debate, the thing that is are going to force a filibuster. so given the lack of time, they may have no choice but to really strip it down. >> did you hear defense authorization over start is the priority? over the start treaty? >> as the chairman of the armed services committee, it's his role to advocate for the defense authorization bill but he didn't say that it should go ahead of start. ideally he would like to see both but the reality is that we may get neither. >> what are either one of you hearing from the majority leaders' office about the schedule for the senate? >> it's so fluid, here we are december 12. they want to leave december 18, saturday, they can go probably as late as the 22nd, 32rd. so you have all these things to

do. you look what happened thursday on the floor where from one minute to the next it seemed like we are ping ponging between the dream act the immigration, don't ask don't tell, firefighters bill, tax cuts, i think every journalist knows in the closing days of any legislative session, state, local, national, you just have got to be ready for anything. tax cuts are obviously the priority. they're going to vote cloture at 3:00 p.m. monday. if they get cloture, the 30-hour clock is ticking. you're probably talking about a tuesday-wednesday vote. then the flood gates open. i wouldn't predict anything right now past that. >> even though the chairman was pessimistic and even though i don't see that much time, i've also seen them pull a lot of rabbits out of the hat especially in the waning days of the session. >> and you asked about tax cuts. is this a liberal, democrat, from michigan. what did you hear from him? >> i was struck by his displeasure, shall we say, with

president obama, although it's not a difficult quote to obtain for a journalist these days. the house of representatives thursday of course voted behind closed doors to object the obama white house deal. many senators are quite upset about it. senators sanders of vermont spent much of friday rallying against the bill. he still won't rule. senator levin still won't rule out a vote. i think in many ways he symbolizes the liberal conflict here. he dislikes so much but he also knows there are parts that will help his state. what do you do? we'll see. >> thanks for being on "newsmakers." >> pleasure. >> thank you. this month quay expands to two

programs this. tonight, matthew, former member of parliament who now writes for the times of london. this week on prime minister's questions, prime minister david cameron talks about concerns over increases in university tuition and support for school sports programs. he also reaffirms his commitment of troops out of afghanistan and utilities to return profits to customers. prime minister's questions tonight at 9:00 p.m. eastern on c-span. >> a three-judge panel in san francisco heard oral argument monday on california's ban against same-sex marriage. in the november 2008 elections california voters approved proposition 8, an amendment to california's constitution that limits marriage to a man and a woman.

the court will decide if a lower court rightly struck down the voter-approved ban as unconstitution nal. this is two and a half hours. please proceed. >> good morning, your >> my name is charles cooper. i reapt the pealents in number 10-166966789 the appellate artificial proponents of proposition 8 and the official campaign committee. there are two jurisdictional

issues before the court this morning. the first is whether this court has who restriction to review the merits of the decision striking down proposition 8 as unconstitutional and the second jurisdictional issue is whether they were able to join proposition 8 despite the fact that the complaint itself was brought forth by individual plaintiffs seeking relief on behalf of themselves without any claims on behalf of a class or any request for class certification. speaking to the standing issue, your honor, the question is whether it the proponents has standing. mr. tyler will speak to that issue momentarily. with respect to proponents, we submit this issue is controlled by the supreme court's decision in carter vs. mackay.

in that case the plaintiffs brought a first amendment challenge to a moment of silence law in the state of new jersey, 1983 suit. they sued the state's education officials and no one else. the attorney general in that case and the state and local education officials declined to defend the moment of silence of statutes. in the default of the official attendance, the court allowed the speaker of the assembly and president of the senate on behalf of the legislature to represent the state's interest in defending its statutes. the supreme court rejected the claim that the speaker and the president of the senate were not

proper parties defendant. they did not have standing. the reason they did was because the new jersey supreme court had previously in a case called for site allowed the legislative officers to intervene on behalf of the legislature to represent the state's interest in defending a statute in that case. that was a reduced the strength statute. >> was that before or after his arizona official that you just referred to? >> a departure -- the carture case? >> yes. >> before. >> the court has never allowed article 3 sandlin? >> that is true. it could not have, but opponents

in this case are really in precisely the same shoes as the legislative officers work in that case. because, your honor, under the law of the state of california, the proponents, in fact proponents of initiative measures are routinely and rarely allowed to intervene to defend the measures that they have proposed. >> but in state court proceedings? >> yes, your honor. what is your best case for allowing for article measure standing in federal court on appeal? >> your honor, i do not have a case for allowing a proponent article 3 standing. i am here advocating that this case the one that allows

opponents to just -- >> justice ginsberg said in an arizona case that she was not aware at any arizona case, which supported standing to the proponents. and did you believe there is a california case which enacted arizona law which may have included not only as statute but a supreme court ruling or may not? are you aware of any california law which states that the proponents do have standing? >> your honor, in fact the case of strauss, which involve these very proponents being allowed to intervene to defend the live -- validity of this very proposition is directly on point

and precisely analogous to the foresight case. >> strauss did not really talk about where you as proponents as agents of the case. strauss only talks about you as proponents as the agents of your proposition. we are in a different situation here. >> your honor, foresight itself talk about the legislative officers being allowed to intervene on behalf of the legislature in that case as of the rise to represent the state's interest. >> let me ask you a little bit different question. there is no question the attorney general has a duty to defend all of the causes to which the state or any state officer is a party in his

official capacity. did you ever seek an injunction or an order for anything suggesting that the attorney general said appear and appealed, and if in fact he did not appeal, allow you to appeal? >> we did not seek to enjoin or otherwise course through some additional measures to -- >> the attorney general has the power to do it in his official capacity or duty to defend all causes to which the state is a party, would not that have been inappropriate way for you to have made sure of your ability to seek standing here? >> did someone do that? did someone there to the california supreme court and seek to appeal --

>> i believe you are correct. a lawsuit brought, but not one that my client was involved in. the suit was unsuccessful. and the point that i would make is that i have little doubt that in the forsythe case, referenced in karcher that the attorney general also had authority to defend the new jersey statute at issue and to take an appeal, but that attorney general declined to do that. the new jersey attorney general declined to do that just as the california attorney general has declined to do it. and yet, in karcher the united states supreme court recognized

that the legislative officers had the authority to not only intervene at the trial level and defend the moment of silence peaked statute but to notice and take appeal that there were parties not just in the trial court but also in the third circuit. again, i would urge the court that the law, the state law relied upon by the karcher court as demonstrating that the legislative officers in that case had authority to represent the state's interest in defending s statutes was a new jersey supreme court decision, just like the california supreme

court decision that we submit establishes the law on which we rely. that is the law involving these very proponents with the california supreme court allowed these proponents to intervene in the strongest case and defend the constitutionality. when no one else would do so. and all in the state defendants refuse to defend that statute. or at least to challenge the constitutionality of that statute. the only party defending the constitutionality of the defendant across the board were these proponents. and the california supreme court

denied intervention status to another group. a group that had been an active group involved in the campaign itself and sought to come in and intervene as well. in in the strauss case also at the court of appeals level -- it was not in the strongest case, it was in the marriage cases at the court of appeals level, the court of appeals denied intervention to a group that was not be official proponents, but it stated that we make no ruling with respect to under our law the official proponents would be authorized in default of the state officials in lieu of state

officials who have declined to defend would be authorized to come in and represent the state's interest in defending a state statute. to go one further question about that earlier discussion about whether anyone tried to get this court to appeal the attorney general. that was a a writ of mandate case. did the court say anything about that? >> per did me, i do not have the specific recollection of the court's ruling in that case. >> better to say you do not know than to guess. -- four give me. and-- forgive me. >> we can certainly check that. there are two of you in this

hour. and to go your designated only one of us would be eligible -- that was a wise decision. >[laughter] >> in light of that directive and the fact that i am at the podium first, i would like to reserve the balance of my time, which is just a couple of minutes for rare bottle. >> certainly. >> thank you. >> sorry for the delay. may it please the court, my name is robert tyler. the plaintiffs think that justice is served where

appellate review is frustrated in this case, where the state depended circumvent any evidence to state law that they are politically opposed to. >> i think they're talking about procedural rules. >> yes, your honor. >> why don't you start by telling us where dolores is. >> could you tell us where delores is? you know who she is. she is the clark. >> she is not our clients. i cannot speak on her behalf. the fact is that the deputy clerk is a commissioned officer. in she is under the government code for a civil commissioner for marriage. and she is all the same responsibilities. >> is there anything in the record to suggest that she is acting with the cleric's authority?

>> the answer is no, isn't it? >> there is nothing that shows the clerk has designated her. we have visited bridgette we have a designation from the supervisor. we have the declaration of mr. vargas -- miss vargas that said she has these responsibilities. the court is to assume the facts to be true. >> what facts can we assume about the fact that there is nothing in their record to indicate that your clients, as any authority whatsoever to attend to intervene in the litigation? >> in her declaration she says she has responsibility. >> you are repeating yourself now. there is nothing in the record to indicate she is acting on the authority of the clerk, correct? >> that is correct, --

>> is the clerk elected or appointed -- appointed? to go she is appointed. takeshi is appointed by the board of supervisors. in this particular case what is important is the fact that the official duties of an officer are altered as a result of the outcome of the case. >> it seems to me that if we read 1922 case of california and says all political functions of an office remain vested in the county of an officer. who would continue to exercise them himself when present and an absence they would only be exercised by the deputy in the name of a war as an act of the

principal. so i guess i am again worried that this clerk can only act as an agent of the principal and if the clerk is not here, we have our problem. >> i would disagree because the cases -- >> you disagree with [inaudible] ? >> i disagree that --- >> their ability to act is what we are really about here. given foult, which was about what deputies may do or given sauder vs sikqe county, and both of those cases this against they are only mere agents of the

principal. >> your honor, i understand, but the fact is that this is a government position. this is a person that has duties that are designated by the california family law code. designated by the california health and safety code. these are acts that this person is carrying out. as a result, her duties will be altered. she is an joined by the court's injunction. she is -- >> is it your position she is found by the junction? >> yes, your honor. i thought your brief said to the contrary? take up the fact is that judge walker's order finds her. the order says that all persons under the control and authority are to state registerear be bound. judge walker in its denial the intervention said that all

county clerks are subordinates were under the supervision and have nord authority to disregard state officers. >> i thought she was an independent officer? >> we believe that is correct. and the fact of the matter is that judge walker issued an order -- >> that is a different question. whether shue was found in that capacity as supportive of the register and that may lead you to a different theory. that may give her some ground to complain that she is bound or in risk of being bound. but as far as actually being bound, the marriage capacity, as

far as i understand she is an independent office sent with duties that is set forth in the code and not subordinate to the registrar. is that correct? >> that is right. and >> the fact that we believe to determine the statutory requirements, to turn -- determine whether they are satisfied when an applicant becomes before her, she comes under the board of supervisors. >> let me ask you about a question about that. are you suggesting that clerks are state officers? >> your honor, they are statutory officers. >> are they stayed officers performing state functions qwest >> no, your honor. they are local. i believe they are local officers.

they are individuals that are statutory recreated under the government. it had you get around the fact that they are state officers and the duty they undertake. they do come because they are performing estate function and that is the issuance of a marriage license, which is a state concern. >> your honor, i would can see. i am not sure what this case turns on. whether it turns on is whether or not her capacity at the local duties willher her judy' be altered as a result of this case. >> if you are insisting upon that, let me turn to language in wall. it says it however the controlling role of wall

requires an official to carry out a ministerial duty dictated by statute, unless and until the statute has been judicially determined to be unconstitutional, it follows that such an additional cannot a court rule on the constitutionality of the issue. >> , your honor -- >> that is the language. >> you are right. in that situation this city and county of san francisco is attempting to violate the law. the county of imperial stand here today is seeking to uphold the law. it >> i understand klerk is not attempting to get the court to make a ruling. the court attempted to make the clerk perform the duty.

what year was four offices circumstance. -- lockeyear was up for different circumstances. >> if the clerks are state officers and cannot compel the court to rule and the attorney general has the duty to defend those officers, then why would the clerics have standing separate from the attorney general? >> your honor, let me refer you to a case, richardson vs. trimeris. and that case there were three clerks who were sued and the secretary of state in regard to registration of felons for purposes of voting. in that case the mendocino county clerk had the ability to take this case and defend where there were no other defenders. that is what is so important about this case, there is not a single governmental defender defending this action.

here we have a governmental defender who is willing to come to this court and wants to ensure that they are not placed and illegally conflicted position that is the outcome of the incentive order. >> suppose it's set in every case in which first-degree murder is charged, the prosecutor shall seek the death penalty. and the deputy county attorney and imperial county attorney did not want to seek the death penalty. could they challenge the constitutionality from the provision? >> the deputy in their individual capacity could file an action and to challenge it in state law. they could not on their own decide to violate their law, which is exactly what happened. >> supports the u.s. district

court held the proposition unconstitutional and a deputy county attorney and who wanted to seek the death penalty in every first-degree murder case sought to intervene, would they have ed? >> i believe the deputy attorney what havould have -- the state code provision that authorizes the deputy prosecutors to perform those duties the same as the district attorney of the county? >> your honor, and our particular case, ms. vargas has the same responsibilities. >> under the code she is given the same duties as the clerk. >> she has the same responsibilities. she has stated that in her

declaration. >> do you know the deputy prosecutor has the same duties as the county attorney? >> [inaudible] >> why don't you say you do not know the answer? >> i do not know the answer, but that case does not turn on it. and >> when you're asked a question and do not know the answer, say so. >> to county clerks were named in this lawsuit. -- two county clerks were named in this lawsuit. and they both responded saying they did not want to defend the proposition where they were comfortable with their ruling that said it was unconstitutional. am i correct so far? >> that is correct. >> could a deputy clerk come in and see expanding saying i do not agree with my boss? >> your honor, i believe they

should have the ability, if they have official duties -- >> how long do you think it would last taking that action? [laughter] >> precisely the problem and may be why we do not have any other governmental defenders coming to the court. when we have the county of imperial and the court saying i performed the its responsibilities on a day-to-day basis -- >> we have a deputy clerk. but us not forget that. we are left at complete mystery to let us know why the clerk is not before us. >> again, i do not speak for the clark herself. if she wanted to prohibit the deputy clerk from being involved in this case, she could have -- >> we just do not know. >> i do not believe that is an issue that this case should be decided upon, whether or not she is involved or not.

>> it is an issue that concerns some of us on the panel. >> i can understand that, your honor. and to go we're wondering why there is not a single sentence in her affidavit saying she is acting on the authority of the clerk. >> your honor -- >> issue with the board of supervisors on this case? -- is she joined with the board of supervisors on this case? >> yes. i was mistaken. the clerk is elected. as my time is coming to a close, if i may just conclude -- >> let me ask you one more question about this. i read a california case that suggests that the attorney general is the only person to whom authority given by the law to appear for the people, it may

delegate the authority to appear. in that case did. did you ask the attorney authority tothe appear? >> we did not appear y. we are appearing on behalf of the county and county clerk who had direct responsibilities to issue a marriage licenses. just like the county clerk in every other marriage case that has been brought before the curtain. it is the county clerk's that are sued. the outcome of this case will alter my clients official duties. and ms. vargas is bound by an injunctive order that has placed her in a legally consenting position. does she comply with the california constitution or comply with judge walker's order? the cases are clear that that gives hurt not only our right to intervene, a standing in this case. to go deadlock percent your client was found by the

injunction -- >> jusdge walker said your client was found by the injunction? >> we're taking other people's time. yes or no did judge walker said your client was found by the injunction? >> no, but he did so through two different orders in my opinion. he did so by saying that in the denial of intervention our client is subordinate to the state registrar and stating that ms. vargas had no authority to disregard. we do believe that there is in error, but my client is therefore bound by the injection. >> thank you. mr. cooper. and i am sorry. >> mena please the court, my name is david boyce.

we represent the plaintiffs. let me begin by interim one of the court's questions with respect to the effort to get a mandate requiring the attorney general to appeal. that was simply a one-sentence denial. the court did not provide any further analysis. i also would like to just be certain their record is clear that permanent injunction that was issued by judge walker relates only to the official defendants, and persons under the control or supervision of those defendants. >> sewed judge walker was wrong about the register -- so if judge walker was wrong, and she is not bound by the injunction, correct? did a that is correct. >> if she is not bound by the injunction, how does she have

standing? >> we do not believe she does. we believe the decision makes absolutely clear that individuals like mr. argus, even if she were the actual clerk, which he obviously is not, would not have standing. -- individuals like ms. vargas, even issue with actual clerk, which she obviously is not, would not have standing. >> what about clerks? day klerk's issued the licenses. are they found by the injunction? >> they're not directly bound by the injunction. >> how are they found but not directly? >> marriage is a statewide concern, not a local ordinance of all concerned. and the forums in their roles come from the states to the locality. >> if our state was lifted and

the injunction was in force, could the county clerk in san diego county refuse a marriage license to a same-sex couple? >> she could without violating this injunction, however, if she did so, then the attorney general would as they did and locklier act to make it uniform. >> what would happen is no one is bound by the injunction other than the two counties. if they want to enforce the court order that have to go to state court, which would be free to determine the issue of scargy marriage again. is that right? >> yes, and no, your honor. that is right with respect to

the counties. with respect to the remainder of the states, under its california state law, article 5 sections 1 and 13 give the power to execute the laws and enforce laws to the governor and attorney general. is it, since the invention does run not only to the counties, but to the governor and the attorney general in their official capacities as well, those individuals would have responsibility for making the law uniform. >> what does ms. vargas do? is she supposed to run the risk of contempt? her lawyer is sitting here today. i suppose after this proceeding is over he will go over and tell her that in the opinion of the plaintiff's counsel that she is not bound by the injunction. what is she supposed to do? >> if the curve. a court work to a form -- if the

court were to confirm that the thingst below, thean two would happen. the state defendants, the attorney general and governor, would move to try to make uniform the law within california. and to go where will you move this? >> they will move in the state courts just like they did and locklier.in >> and we're back to where we started. the attorney general can move to a state court and we do not know what the state court will do. in >> no, i think we do know what the state court will do because and lock clear, what the state supreme court held was that the county clerks were just ministerial officials and they had to apply the law as set forth by the attorney general

and by the governor. what you would find is that that is an enforcement proceeding. and i do not believe it would be necessary. >> the attorney general could have stepped this whole proceeding? day is it that we find a proposition to be unconstitutional and you go and forced it because we have decided that? >> not exactly, your honor. and what happened was that we have the trial before judge walker. after the trial he enjoined the governor and the attorney general. all of the defendants. and it >> that phrase was the

make of all defendants was chosen by plaintiffs' counsel and you chose to name only as danita and los angeles clerics. >> that is exactly right. we proceeded exactly as >> that was a no-win tactical choice? -- >> that was a knowing tactical choice? >> just as the locklier case was not a class action were the california attorney general proceeded against the county of san francisco -- >> i do not understand your

answer, other than that as of now, no one is found in except for the clerks in los angeles and alameda hi. >> no other clerks are directly bounds. but because all of the county clerks are ministerial officials who simply issue marriage licenses to whoever the state determines is entitled to marriage licenses, that is simply a ministerial function. that function is the same before or after this court's decision. >> if the attorney general consult the clerks with a lot is or the governor can, you did not need this case at all. >> an absence of the case the attorney general would not have told --

>> i think at least the attorney general would have told them that. and [laughter] i think he made it pretty clear. and i think the attorney general would have liked to uphold a match, but an absence of a judicial determination that that was the law, i do not think the attorney general would have. both the attorney general and the governor have a continue to enforce this law while this case has been proceeding. and that is the score stayed the district court decision, but they could have based on the district court decision, tried to change what in california. they have not done that. >> let me ask you a question about that. it is my understanding that these particular initiatives could not have been vetoed by the governor. correct? >> yes, sir. >> it is also my understanding

that the legislation could not amend them unless approved by the voters? to god that is correct, your honor. >> if that is so, i guess my problem is that in fact become a nurse actions and the attorney general's actions had essentially nullified the considerable efforts that were made on behalf of the initiative to be placed on the ballot and obtain passage. >> i would disagree with you for the following reasons. >> they do not appeal and therefore no one can appeal. had they effectively nullify the effects? >> is only in the sense that in every standing case that if an official does not appear in its molokai's its. >> and answer is yes.

>> honest answer is yes, because what we have is an attorney general and governor with no ability to notify axe of the people and then by just not appealing, they in fact do it. what they do is they do not appeal the federal district court decision after the trial. that is exactly the same thing that happened and diamond against charles. >> my worry is that by suggesting they will not appeal, are they really suggesting they are not willing to enforce the initiative? >> >> you are suggesting that they need to do at the present, but have said i'd give up, i do

not care. it is over. and i am not going to enforce. >> what i suggest to you is that that is true in every standing case. and every time the united states supreme court decides as they did in diamond against charles that because of who the state of illinois officials have decided not to continue to defend after the initial story -- her initial -- after the initial -- >> what did they do in this case? >> in this case they did not actively defend. the people are supposed to be able to elect to pass a proposition unless it is

unconstitutional. no officials will defend an issue that does not seem to be consistent with the initial system or the people are allowed to pass a measure and it is the state -- and if the state does not defend its, it is costing in the towel. >> with respect, i think there is a different issue as to who has standing to appeal. >> i know that, of what i am asking you isn't this contrary to a system where the government is not allowed to veto this measure but he can an effective veto it if he and the attorney general will not defend it? justice ginsburg's speak to this in the arizona case? >> we were on the wrong side.

>> i thought it was the right side. [laughter] >> ultimately the arizona supreme court ruled the same weight. he made that argument, and i thought it was a strong and engaging argument, but justice in spurts and not think a lot of its. >> i think that is exactly right. -- he made that argument, and i thought that was a strong and engaging arguments, but justice ginsburg did not think a lot of the. >> my worry is not necessarily to the standing, but to another issue which is pretty vital to you in the fact that they will not offend or will not even appeal to let those who would defend the initiative argue. and are they in fact not enforcing the statute?

>> your honor, i do not think so. and i think that is a question of california state law in any event. that is not something that affects the jurisdiction of the scourge. >> do i have any california law directly on point? -- that is not something that affects the jurisdiction of this court. the only case, your honor, that i would ask you to look at in that respect would be the lock lier case, which referred to before. >> at the california law is not clear -- if the california law is not clear in does not have precedence specifically authorized the proponents and with what justice ginsberg said what she did not find any arizona law that authorized it,

why shouldn't we asked the california supreme court whatsits the law is in california? >> i believe that if this court believes it is unclear what the law is, that would be inappropriate approach. however, i would urge you that took based on what both the california appellate courts and the california supreme court said in a proposition 22 litigation, that it is clear that whenever the intervention rights may be, they do not have standing. >> the purpose and its to not have standing. for example, in the proposition 22 case, the son of and that was involved -- the fund that was involved, they were put forth as

proponents -- >> that does not pull the court. i do not know was strictly a man's. they were not the proponents. >> they claimed to be the proponents. >> but they were not. >> one board member was on both. >> i do not see what we would have to lose by asking the california supreme court to certify the question and they can tell us very quickly if they would like. >> i think if you concluded that it was unclear and concluded that that would in fact provide article 3 standing, that would be the appropriate approach. i would urge the court that while that kind of authorization is a necessary condition, it is not a sufficient condition for article 3 standing in any event. >> why, given what justice

ginsburg said about the arizona initiative that what she wanted to know was whether under the arizona law krona would have standing? in fact, i think they even asked the proponents to supply them with the arizona law. why do you't -- think that would not be enough? >> in her opinion, after stating that in karcher state legislatures were given authority, she said however, these proponents are not elected officials, and this court has never recognized proponents. and she goes on to say that under arizona law, they are not authorized to act, but she does not address what would happen if there had been authorization.

for example, the united states supreme court in rains verses burke, you had an explicit authorization from members accord to come in and challenge the constitutionality ever to give their line item be duveto statute. that is not sufficient to give article 3 standing, even if california work to intervene, and even if they were permit promise to have standing, that would not, in our view, article 3 standing -- provide article 3 standing. >> if that has not been decided by a california supreme court and the supreme court whether than kill an initiative by the voters have passed, would it be advisable to attempt to get a

legal answer to this question of for saying -- before saying we're going to let the district judge make a final decision without finding out from the california supreme court in the united states supreme court whether it is standing and then we can reach the merits. would that be advisable? >> i would suggest that because it is so clear that in order to have an ability to invoke the jurisdiction of this court, the appellate must have a personal concrete's, in particular is injury, and they do not. there is nothing that the california courts could say that with regard article 3 -- which provide article 3

constitutional standing. it does not make any difference whether or not the california law or anybody else tries to get these people standing. under the federal constitution, the case and controversy, they do not have standing unless they have a personal, concrete, and its allies injury. the united states supreme court has held that over and over again. the in the state supreme court said even members of congress, even if they are acting pursuant to a grant of jurisdiction by the congress of the united states do not have thought article 3 standing because they do not have that personal interests. >> if zooey did certified this decision to the california supreme court and they came back said reading the callous touche -- the constitution of california together, we do not think it is our part. but the governor and attorney

general can veto a proposition, therefore we think under california law that is appropriate for opponents of proposition to stand in when they refused comment that even if the california supreme court said what i just described, you would be back here arguing what you just argued? >> we would, your honor. i would say that if the california supreme c court believes in order to save the initiative and have to be defended, the way for it to of done that would be to grant the mandate requiring the attorney general to come in and do so. they did not do so. these analysts and not even ask them to do so. >> let me move to another question. proponents did note even do so. >> do we have any authority to

address the scope of the injunction? >> i did not believe so, your honor. >> you are suggesting there is no authority anyplace which would allow us to determine the scope of the injunction? concluded thatt the scope of the injunction was somehow beyond the subject matter jurisdiction of the court below, then i am not prepared to say that the court does not have the power to respond to do something about it. but i do not believe there is any precedent that i am aware of for that. >> you are saying in any event that the scope of the injunction is quite limited. >> it is. you are counting on the attorney

general to go to state court and have state court expand and the injunction to the other counties. >> i would not put it exactly that way. >> it may not be the best legal terms, but it is the practical-- >> the practical terms is we do have to depend on the governor and the attorney general. >> you're lucky the election came out the way it did. [laughter] >> suppose we were to agree with the position that you just take would ms. vargas be able to declare its position on whether this finds her or other county clerks? >> i believe that she could do

that, your honor. i believe she could do that. >> if the court determined that she was found by the injunction, what would happen then? >> then she could have an appeal and she could have standing in that situation. the courtk that' below what interpret its injunction as applying only to pass the defendants in that case. she would not be bound to directly bounds. take up that is what you would argue? -- >> that is what you would argue and debate agreed, she would be free to refuse a marriage license to same-sex couples? >> shue would to the extent that the attorney general and governor of california moved,

as i believe that obligation to under the california constitution, to make marriage laws uniform throughout the state and abide by the injunction that has been issued against them in the case below. >> why not bring all of these issues together and decide them right here? so that it is clear in california who has the right to marry into does not and what what clerks are supposed to do when same-sex couples asked for the issuance of a marriage license? >> your honor, that was exactly the situation that was addressed by the united states supreme court. and when the court said we must put aside the natural urge to proceed directly to the merits of this import disputes and

sublet for the sake of convenience and efficiency. and what the court said is that constitutional standing serves as so many important purposes that it is not open to the courts to simply say let's get it all together and settle it now, that is the most efficient way to do with. there are important constitutional and policy reasons that underlie the standing requirements. where it is clear, and i respectfully suggest to the court, it is crystal clear in this case. >> it is hard to believe that you deliberately only wanted to get a judgment in alameda and los angeles and did not want to get a judgment -- this judge's ruling applies throughout the state. for get that. it is hard for me to believe that a lawyer with your ability and whatever else you

have -- [laughter] nevertheless, it is hard for me to believe that. let me ask you one other question. this marriage system we have in california is an integrated system. as you say, the state is supposed to give the court order spirit anrs. they all act in concert to get people married. it takes a lot of people to do this. they are all acting together. doesn't the injunction brunn to all of those that are acting in concert to perform, give this marriage done between two people? those people covered by the injunction? >> the injunction itself did not

go as broad as that might have under rule 65. the injunction at self-help is directed to the defendants and their official capacities and all persons under the control or supervision of defendants. and that is the limitation of the injunction that was actually entered. and now, one of the defendants that we have not mentioned is the registrar. that is the person responsible for the form and content of the marriage license. the registrar, who is the defendant here, will enter the injunction have to change the form and content of a marriage license. >> for that reason i am some surprise by a your answer to whether the clerk could even bring the motion for a

declaratory judgment. as i understand locklier, the registrar puts together the form, the questions to be asked, all of a particular things about the court needs to know, and as i understand what clear, -- locklier only completes the ministerial forms. how would the clerk then bring a or appropriate case about >> i think you are exactly right and i do not think the court could. i think the one possibility is if the court were to say, i am concerned the injunction that you have issued binds me before the registrar has even given me

any further instruction or additional -- she would have the narrow ability to simply ask the court whether the injunction binds her, the deputy clerk, directly or not. but i agree with your honor that the deputy clerk, even the color, if the real clerk was here, would not have any standing to contest that issue or even litigate that issue. it is purely a ministerial function. i would try to end with two points. one is that this case is at the federal level of reflection of what happened at the state level in the marriage cases in which you didn't have the clerks, and you didn't have other defendants. what you had was the state defendant and the attorney general and the governor and of

registrar as respondents. those are the proper respondents. the appellants here do not have been the personal, concrete, particularized injury that this court and the city of lake tahoe made absolutely clear was law, that the united states supreme court repeatedly made clear is no longer, that justice ginsburg's opinion, i think, makes particularly clear is the law. they do not have standing. and because they do not have standing, all of the other concerns -- and they are of legitimate concerns from a policy standpoint. we could have a different system of government where you didn't need that kind of standing baird but those gains of concerns exist in any standing case. abortion -- >> you are running over. we know how important standing is, but let me ask you one other question. under rule 65, anyone who has

served and is acting in concert with the people against whom the injunction -- people named in the injunction, people will act in the concert or participate with them are bound of they are served. would that not apply to any clerk who is involved in the marriage business in california? in this group i described to you, where it is an integrated process, so what not anyone bound by the injunction have a right to an appeal? >> i think people directly down by the injunction would have the right to appeal. i do not believe these appellants are directly bound by that injunction because the injunction makes clear who is bound. if they are acting in concert

with somebody and we serve them with injunction, which we have not done, and would not do, then the issue would be whether that binds them or not. i did point out to the court that the form of the injunction here does not use the "in concert" language. >> rule 65 does. it doesn't have to be in the injunction. the rule says that anyone who does that is bound. i am not sure whether you have the knowledge -- if that would be enough, or you have to be served. you might serve them, it would help us clear up the case. [laughter] >> i've got will decline that, your honor. >> thank you very much. >> thank you very much. you must have a lot to say after hearing all of that. >> a lot to say but little time to say it. the one thing that is most important to say, your honor, it

is you put your finger, i believe, precisely, judge reinhardt, on the key point of from arizonans as justice ginsburg -- this is what she said and the language i think you were referring to. she distinguished did this way. no one in arizona identified arizona law pointing initiative sponsors as agents of the people of arizona to defend in lieu of public officials the constitutionality of an assistance made lot of this state. what law from new jersey did of the speaker and the president of the senate brings is -- to the supreme court? they brought in a jersey supreme court decision allowing them in of the forsythe case to intervene and to defend the constitutional challenge to new jersey state statute. >> one quick point -- wasn't

the state attorney general willing to defend? >> the state attorney general did not defend. i did not believe he was willing to defend accept to the extent that the decision might result in attorneys fees against the state. he was willing to reserve some of a right to defend in that respect, but it is at least my understanding that the only individuals who took a notice of appeal -- appeal, and that is what we are dealing with -- notice of appeal of the third circuit were the presidents and the speaker. what long do i bring you? i bring you exactly the same law the legislative officers brought the supreme court -- because i bring you the strauss case, in which these very proponents were allowed to intervene in lieu of the state officials who did not defend the statute, allowed to intervene, to do so, standing alone.

judge reinhardt, my time is expired, but i would like to conclude by saying that if you don't agree with me that we have standing by virtue of of the analogy tocarture, then i urge you to ask the california supreme court this issue -- before you dismiss this case and that allowed to stand a single district court decision, single district court judge decision nullifying the will of the people of over 7 million californians. thank you very much, your honor. >> thank you. the court will break a brief 10- minute recess and will return for the second hour. >> all rise.

rriage. this is live coverage on c-span. >> good morning, again, mr. cooper. >> good morning agn 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. 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 cstitution. >> 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 meing 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 distinishing characteristics of opposite sex couples that are relevant to interests that the state has authority to implement -- >> argue arguing to mehat 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, an 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 tsay 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, naturly produce children. society has no particular interest in a platonic relationship between a man and woman, no matter how close, no matter how committed it may be, or emotional relationship is between other people as well. but when a relationship between a man and a woman becomes a sexual one, society immediately has a vital interest in that, for two reasons. one, society needs of the creation of new life for the next generation, but secondly,

society -- its vital interests are actually threatened by the possibilities that unintentional and unwanted pregnancy would mean that the child is born out of wedlock and is raised by, in all likelihood, its mother alone. and that directly implicates society is vital interests. both in terms of its immediate interests because society would have to step in and desist backed single -- a system that single-parent and all likelihood -- that is what usually happens --n 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 itelate to having two males and females marry each other and raise children, as they can, in california and form a family unit wreas 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 couple have all of the rights that the heterosexual couples he? 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 e 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 whethert will be redefined, essentially, to be 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 rer? 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 o 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 differe 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 ha 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 fe 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] >> 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 hor, 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 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 unendin 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 -- simplyhis -- if proposition 8 ha been enacted before the california supreme court ultimately it invalidated traditional marriage -- if it had been enacted before that,

the constitional 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 calornia retained the authority 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 -- usin 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 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 constituonal profile that it comes to you now. i gue 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 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 marrge 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 tt that might have existed and the california supreme court had it ripped the people of california of it. what we are submitting, and what we believehe 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 addressedo 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 b 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, yo 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 sd 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 particurly 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 legitima 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 interes 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 rational basis justice o'connor elaborated in lawrence? >> your honor, if this case w to be decided by heightened scrutiny, then obviously it is a harder case. but we think it does this satisfy a heightened scrutiny. the essential proposition, your honor, being that the main objection to the rationale that i have articulated here is that

infertile couples are nonetheless allowed to marry, and that is true, no society has ever insisted that marriage produced children. but, your honor, the question becomes how would society draw that line? how would society do that? it would have to have orwellian measures designed to police fertility before marriage, orwellian measures designed to presumably an all marriages that are childless. those measures would undoubtedly by a constitutional rights of the individuals involved. we do not think that any less restrictive method could be, as a practical matter, employed.

i appreciate the court's indulgence. >> thank you, mr. cooper. >> i think you indulge me, and i hope you did not go too long so he is aggravated with me. thank you. >> we will give you two minutes anyway. >> we appreciate that, your honor. >> may it please the court, my name is theodore olson and i am here on behalf of the plaintiffs. it is important to focus on the fundamental fact that califoia 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 ters 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 righ away and not affording it in the first place? >> yes, we do, judge reinhardt. that is what the united states supreme court said in a case going back to 1964 were the california citizens acted through this process and it took away rights with respect to discrimination in housing. that is what the supreme court said in cromer vs. colorado. it does make a difference. i do not think, as an original matter, it would be constitutional if congress had enacted proposition 85ears

ago before the marriage cases, but i think it makes it worse. that is what the supreme court has said. the taking away of the rights in that context enhances the effect of the constitution -- the reported conitutional change. >> what is your answer to the case mr. cooper referred to several times? blessing and of bringing diversity to the schools on? >> that is the crawford case. it said that to the extent not required by the constitution, remedies for constitutional violations could be restricted by the people of the state of california. that does not change anything. i heard mr. cooper mention the crawford case five times. not once anywhere in the

crawford case does it suggest that an initiative measure somehow rises above the 14th amendment to the constitution of the united states. that is certainly what the right man case held and it certainly what the rumor case held. >> are y suggesting then that gay marriages required by the constitution othe united states >> record reddick constitution and the united states is the fundamental right of its citizens to marry. mr. cooper defined that as it has always bn 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 toiberty, privacy,

association, and identity. >> what i am trying to find out is if your argument here in response to crawford that there is a constitutional right to gay marriage. do we have to reach that point? what you are answering is that they are taking away a constitutional right. if that is your answer, fine. if it is not, i would like to know that also. >> my answer is that they are taking away a constitutional right given by the state of california and recognized by the state. that in and of itself makes proposition 8 unconstitutional under rummer and reitman. i would also say, judge reinhardt, a gay marriage or single-sex marriage anymore than the supreme court of the united states called the interracial marriage.

what the supreme court has said 14 times is that it is a rite of liberty, association, privacy. >> you can say whatever you want in deciding the case. i think we are entitled to know whether your answer to crawford is that if you cannot take a constitutional right away and this is it taking away a nstitutional right under the 14th amendment. >> yes. i would also say -- >> is dependent upon our finding that they would be taken away constitutional right? >> no. the right of marriage is the right of an individual. mr. cooper talks in right of society. society's interest in procreation. it is not society's right. the rights of the cotitution 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 aw. it could save that we're over populated and we do not want procreation and we will the nine people the right to marry. this is a fundamental coming individual right. the reason i am emphasizing this, judge reinhardt, is because of the look at this from the standpoint of the right of two particular individuals, maybe they were mr. and mrs. loving in the virginia case of interracial marriage, it was marriage. it was their right to get together. what the supreme court said in the griswold case is that we deal with the right to privacy, older than the bill of rights. marriage is a coming together, for better or worse, hopefully

in during, and intimate to the degree of being sacred. it is is an association that promotes a way of life and so forth. from the griswold case, this is one of the -- >> mr. olson, i am not trying to express the view on gay marriage or any marriage at this point. i'm trying to find out how far we have to go if we are to except your view of this case. certainly, if we start out from the assumption that everybody is entitled to marry anyone else regardless of sex, sexual orientation, if we have to reach that issue, we would. as you well know, and as you have argued, we are advised not to reach a constitutional question unless we have to. i was not planning on reaching

-- preaching that question this early in the discussion, but it seemed to come in relation to how we deal with the crawford case. for that reason, that was why i was asking whether in order to distinguish crawford you are saying that, if necessary, to take the positn that you can ly -- the only thing you cannot take away as a state is a right under the 14th amendment. >> it seems to me there are two questions. how far you have to go in the significance of crawford? you do not have to go any further damage the romer case says to go. it's just taking away the constitutional right of individuals who are homosexuals because of their classification that as homosexuals violates the united states constitution even under a rational basis. i would say, if i get a chance to do so, this is the clearest

case. in addition to that answer which i submit, how far do we have to go? the additional answer with respect to the crawford case is separate thing because crawford was saying is, yes, citizens can change a non- constitutionally required remedies for constitutional violations. that is different than this. therawford ce, in my judgment, has nothing to do with this case. i would be happy to put the crawford case against romer, loving, and texas. it cannot possibly, but it does corporate decisions. one additional lancer, and i think it is important since i slipped into mentioning the lawrence case is that the united states supreme court has determined that that intimate sexual conduct between persons of the same sex is

constitutionally protected. the supreme court has said, as i said, and that marriage is a fundamental right. how can the fundamental right of married to be taken away by californians for persons because they are engaged in a constitutionally protected activity? how can the constitutional right be taken away because of the constitutionally protected activity? it cannot exist. if you put the together with the marriage cases, loving, so on and so forth, you cannot take away that right, which is not a writer of same-sex persons. it is a right of all persons and it is a right to be with the person that they love, to have an association that they select, to live a life of privacy, to identify themselves using self identification as justice kennedy talked about in both romer and lawrence.

that right cannot be taken away from individuals because of their sexual orientation. it is discrimination on the basis of sex and it is discrimination on the basis of sexual orientation. even under a rational basis test and the have tried various reasons in this litigation. they started off with the proposition that in the ballot materials that it was necessary to protect our childn from thinking that gay marriage was ok. that was the original rationalization in advertisements and it is in the ballot measure proxy information. protect our children from thinking that gay marriages ok. what is the matter with that? it must be something about gay

people getting married that would be discerning to california voters. you have to take that risk away from them. basically, they retreated from a proposition and it only appears on pages 107-108 of the brief that the filed. basically, they are now saying that if a marriage were permitted, and this is on page 107-109 of their brief -- "prosition 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 nonsse that you can enacted proposition -- with the issues of sexuality. you are worried that otherwise

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

just imagine something from the sky that someone could imagine. romer makes it clear, and in the justice kennedy, it says we must look further than that. we must look into the reasons and the must make sense. they cannot be attenuated and they can be motivated by the fear of people we do not like or minorities. it has to be more than that. most of all, it has to be rational. that is why i was looking through the reasons they have advanced. one is to protect our children. we have seen, i think, that is manifestly clear that it is that a rational basis. you nnot 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 lk at the context in which the measure was passed. i will say that if i move to that point, this conce of raonal procreation -- and there is no way that proposition 8 prevents him, by keeping of individuals of same- sex to get married, have anything to do with heterosexual marriage. same-sex marriage is not calling to discourage a heterosexual people from getting married. it will not keep them from getting divorced. it will not have any effect at all on their choice of having children. on the other hand, the alleged

-- the elimination of proposition 8 cannot possibly hurt the heterosexual relationship battled -- at all. the evidence was clear from the witnesses in this case then there would be no harm as a relt of the elimination of proposition 8. mr. cooper, quite candidly, when he was asked that question that the summary judgment meeting, "what harm can there be"? he said, "i do not know." what he was saying is that we do not know the impact of allowing same-sex marriage and how it may affect this very important institution of marriage. it is a very important institution of marriage because it means a great deal to the citizens of this state. >> people in the popular election campaigns make all sorts of nonsensical arguments. >> i have not heard that.

[laughter] >> not to vote for someone or to vote to someone, but my point is this. my reading suggests that this is a matter a what is referred to as legislative facts. it matters not what a whole bunch of people would sugst one way or another but that this is a legislative fact that we look to. if it can be conceived and argued that there is a rational basis to uphold the constitutionality of prop. 8, that satisfies the test. >> several answers to that. one is the idea of legislative facts means that instead of witnesses who talked about the history of discrimination, the damage that discriminationas done, the immutable characteristic we are talking about that people do not choose to become gay, the have the characteristic which this court in the hernandez case and the

california supreme court has talked about and with respect to the inability if i could have a slight digression is that all the plaintiffs and other witnesses in this case, and the experts, the judge's findings suggest that this is a characteristic that is immutable. in the long history of discrimination, which mr. cooper stipulated to at the trial, the damagehat is done as a result of the discrimination, all of this requires tighten scrutiny. if you were to go to and imagine on a rational basis standard articulated along the lines that you did, which do not think is the test, i do not think that is all consistent with clayburn or romer. if you were to say that, what conceivable thing can we thi of it that would justify doi th damage that is being done to our citizens in california? what is it?

i do not know what it is. >> just a minute. maybe i could suggest a couple of things. do you believe that the idea of distinguishing marriage from domestic partnerships in name only in order to promoted as a vehicle for procreation, responsible procreation, and inclusion of one group promotes legitimate government purpose? all things being equal, children are most likely to thrive when raised by a father and mother who brought them into this world, do you believe that would survive a rational basis review? >> that would be inconsistent with the evidence in this cas >> it is slightly in consistent with the evidence in this case if you naturally drawn to the conclusion that the only evidence in this case is that

which the judge has suggested is in the record rather than that legislatures do thgs 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 parerships, in name only, to promote it as a vehicle for procreation, all else being equal, children likely to thrive when raised by a father and mother who brought them into this world, that it is rational? -- irrational? >> yes. mr. cooper said just a few moments ago that the name the institution. those are his words virtually verbatim. the name is the institution. the witnesses at this trial, the witnesses that came forward and were willing to be cross-

examined and willing to testify under oath, not the law-review articles that wereut 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 plaintiffsaid, the experts said, the supreme court said, and there's nothing that would suggest that children to ride in a better way in that environment. in fact, the proponents expert testified that the children in those relationships would be better off. we would be a better country. we would be closer to the american ideal of same-sex marriages were committed. now, it is easy to say those things but you have a better situation were a child is with a mother and father, but allowing

that the other problem with that is that the remedy does not fit the so-called problem. restricting marriage to people of opposite sex does not mean that there will not be people in same-sex marriages. california permits that. there is something like 37,000 children in same-sex households in california today. there are also 18,000 same-sex marriages which are not at issue in this case. is easy to see that children will be better off in that relationship, but if you have a heterosexual relationships permitted in california and marriages between persons of the same sex, it does not change where the children will be raised. if a child is a product of a biological relationship between man and a woman, it is up to that man and that woman to keep them together. i think judge reinhardt

suggested that a better remedy would be to prohibit divorce, but that is not something that californians are interested in doing. >> are we free to use anything other than the rational basis test in the ninth circuit? >> i believe very strongly that you are. the hernandez case talks about the amiability -- imutability with respect of talking about any other aspect of the doctrine of heighten the standard. i think it has been ventilated and the issues that would support and enhance, and heightened scrutiny are all present and you would be bound by what the supreme court has said. i think that case supports exactly what i news just saying. >> the factual circumstances argue that they are in

different. i guess you have authority that the factual circumstances alone would allow us to make a difference holding than the prior three-judge panel? >> i think been hernandez case, a subsequent decision, already addresses that issue. and i think the federal public the fender case, i think it was levenson, also addressed that point. >> it was in the administrative ruling. >> i thought the wisdom in that case was superb, your honor. [laughter] the reasoning, i think it, i could not do a better job in answering the reasoning set forth in writing in that case. with respect to the baker case, the supreme cot has made it

very clear that when the facts are different and the precise issue is not the same, sexual orientation was not presented in that case and it was strictly about gender. the facts here are different, not just the romer situation where california has recognized same-sex marriages, but california has an interesting crazy quilt of laws in this state with respect to marriage. some people may be married because they are heterosexual and some people may not because they wish to marry someone of the same sex. some people who were married to someone of the same sex may stay married, but they were to get a divorce they could not even remarry the same person. so persons out of state and if their marriage is legal outside of thetate, then they are recognized in california. we have an irrational system. with respect tthe 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 californiaas been closed within the other fence. that is a violation of the equal protection clause and it is a violation of due process. >> are we free and in view of the way that the supreme court has told us to decide

constitutional issues that the narrowest should be adopted? are we free to do anything oth than decide the issue of whether california's repeal of the initiative constitutes a violation? you're closing speech would require that any state that did not permit gay marriage would be in violation of the constitution. there is a possibility, i think, in this case the proposition 8 would draw the right of gay marriage from gays and lesbians is unconstitutional. under the circumstances that they have enjoyed the right, that they're given every other aspect of marriage and it has been taken away.

-- all that is taken away is the hon. designation. are we free to go beyond a holding, if we were to rule in your favor, a repeal of the right to use the label "a marriage" and to receive the certificate that under those circumstances it is a violation? can wean go further than that? >> i do not think he mentioned was involved in that case. i do not think that case should come in any way, and have you from what you are doing. the answer to your question is that you could decide this on the narrow ground that the romer case gives to you from the california supreme court. i do not think there's anything in the united states supreme court jurisprudence that

suggests that you cannot look at the larger constitutional question which is subsumed within a. what has california done? california has taken a class of citizens and put them in a separate category, whether they had a different category before or not. that act of discrimination, there is no doubt that it is discrimination, and there is no doubt that it does great harm. the only question is,an be justified under any standard of constitutional analysis? i submit that it cannot be justified under any standard of constitutional analysis because the lowest standard, rational basis, you would have to know what is rational. all the arguments that my opponent is making with respect to how valuable the institution of marriage is are not rational when it comes to the question of

the, "why did you draw that line"? heterosexual people are different. gay and lesbian people are different. that does not mean you can classify them, to use justice kennedy's words, and then exclude them from this part of society. the rational basis analysis has to go to the justification for the exclusion. what goes california trying to accomplish, and what it has accomplished in the proposition 8? does pursue those goals in a proper way? that ishere 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 vlation. ultimately that is the decision

i would like to see this court issue. >> thank you, mr. olson. >> thank you. may it please the court, i want to focus on the circumstances and the context particular the california to show how singularly a rational proposition 8 really is. there are four things, but first i want to talk about is that it imposes a special disability on gay people for reasons that california has disavowed and it does not attempt to pursue them in a other arena. california regulates child- reing and parentageeparate from marriage and proposition 8 has nothing to do with trying to promote one family from raing children from another. besides that, california was not doing governing and

parenting. the law continueto recognize that same-sex and opposite sex couples are the same for the rposes 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 tha 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 i 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 pmote this simply as a vehicle for procreation then, does that not survive the crash -- the rational basis test? >> it does not, your hor, for twoeasons. same-sex couples to procreate. they do not have to do it "the old-fashioned way," but they do procreate. california does not discourage that in any way to say one way is preferable, but if you were to think that excluding same-sex couples would somehow encourage heterosexual couples to procreate in a different way or to be more responsible to their children, you have to assume that there is some reason that

including gay people will make hetesexual 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 law i do not think it works, your honor. it is not rational, and the only way can be understood is to say that there is something so wrong with gay people that they put a stain on marriage and it will make heterosexual people, erefore, avoid being married. equal protection does not allow that. proposition 8 regulates the title and stature on in -- only. william s. courage filed a brief on behalf of some law professors. he said this better than i can. he said, "the fact that proposition 8 is largely symbolic that while commanding

stature it makes the insults that the measure visits on lesbian and gay couples obvious. what proposition 8 is doing is demanding we call them "a different" even if it treats them the same." that is the quintessential classification it is undertaking for their own sake. strauss says it carved out an exception to the equal protection, privacy, and due process clause. that is pretty extraordinary. and made are equal protection clause in our state constitution unequal. romer says with discrimination you have to be careful to consider whether it is obnoxious to equal protection. any of those features i mentioned alone would make the court take pause, but when you take them together, they leave a prop 8.

the fourth point is that the court does not have to infer, the context of the measure itself in the campaign really demonstrates that the purpose of the campaign was to be sure that proponents avoided it associating marriage with lesbian and gay couples because it would demean the institution. it was biased. the voters amended the state constitution to incorporate the measure after the california supreme court rejected it on a state constitutional grounds. why? because of the means gay people and treat them as second-class citizens. and relegates them to an inferior status. the campaign did not say that it got that wrong. they said we have to put them in an inferior status because if we do not we need children and everyone else to recognize that same-sex couples are different. they are not the same as opposite sex couples and they are not ok. it betrays the opposite sex couples as a "traditional

clothes "and "ideal." and is same-sex couples us something that to be kept in private. after the campaign, they wrote an article saying they deliberately tapped into the limited tolerance of gay people. they went about per trading days -- >> 30 seconds over into voluntarily give up some time. >> let me close with this. proponents say that this court must find that the majority who voted for proposition 8 are bigots. that is not so. prejudice, defined as thbelief that oneroup 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 reful, rational, reflection or an instinct to guard against people that we think are different than ourselves. that, sort of, intent is what is undeth