are the attorney general and the governor, so that if the attorney general and the governor don't like the ballot initiative, it will go undefended? is that your position? >> i don't think it's quite that limited. i think one of your colleagues suggested that there could be an officer appointed. there could be an appointee of the state of california who had responsibility, fiduciary responsibility to the state of california and the citizens of california, to represent the state of california along -- >> who would appoint him? the same governor that didn't want to defend the plebiscite? >> well, that happens all the time. as you recall in the case of -- well, let's not spend too much time on independent counsel provisions, but -- [laughter] >> the governor -- the government of the state of california frequently appoints an attorney where there's a perceived conflict of interest -- >> i suppose -- >> and that person would have a

responsibility for the state and might have responsibility for the attorneys' fees. >> i suppose there might be people out there with their own personal standing, someone who performs marriages and would like that to remain open to everyone but would prefer not to perform same-sex marriages, or other people. we seem to be addressing the case as if the only options are the proponents here or the state. i'm not sure there aren't other people out there with individual personalized injury that would satisfy article iii. >> there might well be in a different case. i don't know about this case. if there was, for example, this was an initiative measure that allocated certain resources of the state of california and the people -- maybe it was a binary system of people got resources and other people didn't get resources, there could be standing. someone would show actual injury. the point, i guess, at the bottom of this is the supreme court, this court, decided in raines v. byrd that congress couldn't specify members of congress in that context even where the measure depleted or diminished powers of congress -- >> mr. olson, i think the bottom line -- >> the states are not bound by the same separation of powers doctrine that underlies the federal constitution. you couldn't have a federal

initiative, for example. they're free of all that. so start from the proposition that a state has standing to defend the constitutionality of a state law un- -- beyond dispute. the question then is, who represents the state? now, in a state that has initiative, the whole process would be defeated if the only people who could defend the statute are the elected public officials. the whole point -- you know this better than i do, because you're from california -- the whole point of the initiative was to allow the people to circumvent public officials about whom they were suspicious. so if you reject that proposition, what is left is the proposition that the state -- state law can choose some other person, some other group to defend the constitutionality of a state law. and the california supreme has told us that the

plaintiffs in this case are precisely those people. so how do you get around that? >> the only -- that's exactly what the california supreme court thought. the california supreme court thought that it could decide that the proponents, whoever they were, and this could be 25 years after the election, it could be one of the proponents, it could be four of the proponents, they could have an interest other than the state because they have no fiduciary responsibility to the state, they may be incurring attorney'' fees on behalf of the state or on behalf of themselves, but they haven't been appointed, they have no official responsibility to the state. and my only argument, and i know it's a close one, because california thinks that this is the system. the california supreme court thought that this was a system that would be a default system. i'm suggesting from your decisions with respect to article iii that that takes more than that under -- >> mr. olson, i think that you're not answering the fundamental fear. and so -- and the amici brief that sets forth this test of fiduciary duty doesn't quite either. the assumption is that there are not executive officials who want to defend the law.

they don't like it. no one's going to do that. so how do you get the law defended in that situation? >> i don't have an answer to that question unless there's an appointment process either built into the system where it's an officer of california or -- >> so why -- why isn't this viewed as an appointment process, that the in -- the ballot initiators have now become that body? >> and that's the argument -- >> is that your argument -- >> that's our -- that's the argument our opponents make. but it -- but it must be said that it happens all of the time, that federal officials and state officials decide not to enforce a statute, to enforce a statute in certain ways. we don't then come in and decide that there's someone else ought to be in court for every particular -- >> what the brief says is, of course, you can appoint people. it's not just that you appoint

them, it's that the state's interest, when it defends a law, is the interest in executing the law of the state. so all you have to do is give a person that interest. but when a person has the interest of defending this law, as opposed to defending the law of the state of california, there can be all kinds of conflicts, all kinds of situations. that's what i got out of the brief. so give the person that interest. and that, they say, is what's missing here. and you'll say -- i mean, that's -- that's here, and you say it's missing here. >> yeah, i don't -- >> why is it missing here? >> it is -- what is missing here, because you're not an officer of the state of california, you don't have a fiduciary duty to the state of california, you're not bound by the ethical standards of an officer of the state of california to represent the state of california, you could have conflicts of interest.

and as i said, you'd be -- could be incurring enormous legal fees on behalf of the state when the state hasn't decided to go that route. i think -- >> you should feel free to move on to the merits. >> thank you, your honor. as i pointed out at the -- at the outset, this is a measure that walls off the institution of marriage, which is not society's right. it's an individual right that this court again and again and again has said the right to get married, the right to have the relationship of marriage is a personal right. it's a part of the right of privacy, association, liberty, and the pursuit of happiness. in the cases in which you've described the right to get

married under the constitution, you've described it as procreation, family, other things like that. so the procreation aspect, the responsibility or ability or interest in procreation is not a part of the right to get married. now, that -- >> i'm not sure, counsel, that it makes -- i'm not sure that it's right to view this as excluding a particular group. when the institution of marriage developed historically, people didn't get around and say let's have this institution, but let's keep out homosexuals. the institution developed to serve purposes that, by their nature, didn't include homosexual couples. it is -- yes, you can say that it serves some of the other interests where it makes sense to include them, but not all the interests. and it seems to me, your friend argues on the other side, if you have an institution that pursues additional interests, you don't have to include everybody just because some can bespects of it applied to them. >> well, there's a couple of answers to that, it seems to me, mr. chief justice. in this case, that decision to exclude gays and lesbians was made by the state of california. >> oh, that's only because proposition 8 came 140 days

after the california supreme court issued its decision. >> that's right. >> and don't you think it's more reasonable to view it as a change by the california supreme court of this institution that's been around since time immemorial? >> the california supreme court, like this supreme court, decides what the law is. the california supreme court decided that the equal protection and due process clauses of that california constitution did not permit excluding gays and lesbians from the right to get married -- >> you -- you've led me right into a question i was going to ask. the california supreme court decides what the law is. that's what we decide, right? we don't prescribe law for the future. we decide what the law is. i'm curious, when -- when did -- when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the fourteenth amendment was adopted? sometimes -- some time after baker, where we said it didn't even raise a substantial federal question? when -- when -- when did the law become this? >> when -- may i answer this in

the form of a rhetorical question? when did it become unconstitutional to prohibit interracial marriages? when did it become unconstitutional to assign children to separate schools. >> it's an easy question, i think, for that one. at -- at the time that the equal protection clause was adopted. that's absolutely true. but don't give me a question to my question. [laughter] >> when do you think it became unconstitutional? has it always been unconstitutional? >> when the -- when the california supreme court faced the decision, which it had never faced before, is -- does excluding gay and lesbian citizens, who are a class based upon their status as homosexuals -- is it -- is it constitutional -- >> that -- that's not when it became unconstitutional. that's when they acted in an unconstitutional matter -- in an unconstitutional matter. when did it become

unconstitutional to prohibit gays from marrying? >> that -- they did not assign a date to it, justice scalia, as you know. what the court decided was the case that came before it -- >> i'm not talking about the california supreme court. i'm talking about your argument. you say it is now unconstitutional. >> yes. >> was it always unconstitutional? >> it was constitutional when we -- as a culture determined that sexual orientation is a characteristic of individuals that they cannot control, and that that -- >> i see. when did that happen? when did that happen? >> there's no specific date in time. this is an evolutionary cycle. >> well, how am i supposed to know how to decide a case, then -- >> because the case that's before you -- >> if you can't give me a date when the constitution changes? >> in -- the case that's before you today, california decided -- the citizens of california decided, after the california supreme court decided that individuals had a right to get married irrespective of their sexual orientation in california, and then the californians decided in proposition 8, wait a minute, we don't want those people to be able to get married. >> so -- so your case -- your

case would be different if proposition 8 was enacted into law prior to the california supreme court decision? >> i would make -- i would make the -- also would make the -- that distinguishes it in one respect. but also -- also -- i would also make the argument, mr. chief justice, that we are -- this -- marriage is a fundamental right and we are making a classification based upon a status of individuals, which this court has repeatedly decided that gays and lesbians are defined by their status. there is no question about that. >> so it would be unconstitutional even in states that did not allow civil unions? >> we do, we submit that. you could write a narrower decision. >> ok. so i want to know how long it has been unconstitutional in those -- >> i don't -- when -- it seems to me, justice scalia, that -- >> it seems to me you ought to be able to tell me when. otherwise, i don't know how to decide the case. >> i submit you've never required that before. when you decided that

individuals -- after having decided that separate but equal schools were permissible, a decision by this court, when you decided that that was unconstitutional, when did that become unconstitutional? >> 50 years ago, it was ok? >> i can't answer that question, and i don't think this court has ever phrased the question in that way. >> i can't either. that's the problem. that's exactly the problem. >> but what i have before you now, the case that's before you today, is whether or not california can take a class of individuals based upon their characteristics, their distinguishing characteristics, remove from them the right of privacy, liberty, association, spirituality, and identity that marriage gives them. it is -- it is not an answer to say procreation or anything of that nature, because procreation is not a part of the right to get married. >> that's really -- that's a broad argument that you -- that's in this case if the court wants to reach it. the rationale of the ninth

circuit was much more narrow. it basically said that california, which has been more generous, more open to protecting same-sex couples than almost any state in the union, just didn't go far enough, and it's being penalized for not going far enough. that's a very odd rationale on which to sustain this opinion. >> this court has always looked into the context. in, for example, the new orleans case involving the gambling casinos and advertising, you look at the context of what was permitted, what was not permitted, and does that rationalization for prohibiting in that case the advertising, in this case prohibiting the relationship of marriage, does it make any sense in the of what exists? >> seriously, mr. olson, if california provides all the

substantive benefits of marriage to same-sex domestic partnerships, are you seriously arguing that if california -- if the state -- if the case before us now were from a state that doesn't provide any of those benefits to same-sex couples, this case would come out differently? >> no, i don't think it would come out differently, because of the fundamental arguments we're making with respect to class- based distinctions with respect to a fundamental right. however, to the extent that my opponent, in the context of california, talks about child- rearing or adoptions or of rights of people to live together and that sort of thing, those arguments can't be made on behalf of california, because california's already made a decision that gay and lesbian individuals are perfectly suitable as parents, they're perfectly suitable to adopt, they're raising 37,000 children in california, and the expert on the other side specifically said and testified that they would be better off when their parents were allowed to get married. >> i don't think you can have it both ways.

either this case is the same, this would be the same if this were utah or oklahoma, or it's different because it's california and california has provided all these -- >> i think that it's not that we're arguing that those are inconsistent. if the fundamental thing is that denying gays and lesbians the right of marriage, which is fundamental under your decisions, that is unconstitutional, if it is -- if the state comes forth with certain arguments -- utah might come forth with certain justifications. california might come forth with others. but the fact is that california can't make the arguments about adoption or child-rearing or people living together, because they have already made policy decisions. so that doesn't make them inconsistent. >> so it's just about -- it's just about the label in this case. >> the label is -- >> same-sex couples have every other right, it's just about the label. >> the label "marriage" means something. even our opponents -- >> sure. if you tell -- if you tell a child that somebody has to be their friend, i suppose you can force the child to say, this is my friend, but it changes the definition of what it means to be a friend. and that's it seems to me what the -- what supporters of proposition 8 are saying here. you're -- all you're interested in is the label and you insist on changing the definition of the label. >> it is like you were to say you can vote, you can travel,

but you may not be a citizen. there are certain labels in this country that are very, very critical. you could have said in the loving case, what -- you can't get married, but you can have an interracial union. everyone would know that that was wrong, that the -- marriage has a status, recognition, support, and you -- if you read the test, you know -- >> how do we know -- how do we know that that's the reason, or a necessary part of the reason, that we've recognized marriage as a fundamental right? that's -- you've emphasized and you've said, well, it's because of the emotional commitment. maybe it is the procreative aspect that makes it a fundamental right. >> but you have said that marriage is a fundamental right with respect to procreation and at the same level getting married, privacy -- you said that in the zablocki case, you

said that in the lawrence case, and you said it in other cases, the skinner case, for example. marriage is put on a pro -- equal footing with procreational aspects. and your -- this court is the one that has said over and over again that marriage means something to the individual -- the privacy, intimacy, and that it is a matter of status and recognition in this -- >> mr. olson, the bottom line that you're being asked -- and it is one that i'm interested in the answer -- if you say that marriage is a fundamental right, what state restrictions could ever exist? meaning, what state restrictions with respect to the number of people, with respect to -- that could get married -- the incest laws, the mother and child, assuming that they are the age -- i can -- i can accept that the state has probably an overbearing interest on -- on protecting a child until they're of age to marry, but what's left? >> well, you've said -- you've said in the cases decided by this court that the polygamy issue, multiple marriages raises questions about exploitation, abuse, patriarchy, issues with respect to taxes,

inheritance, child custody, it is an entirely different thing. and if you -- if a state prohibits polygamy, it's prohibiting conduct. lesbianohibits gay and citizens from getting married, it is prohibiting their exercise of a right based upon their status. it's selecting them as a class, as you described in the romer case and as you described in the lawrence case and in other cases, you're picking out a group of individuals to deny them the freedom that you've said is fundamental, important and vital in this society, and it has status and stature, as you pointed out in the vmi case. there's a -- there's a different -- >> is there any way to decide this case in a principled manner that is limited to california only? >> yes, the ninth circuit did that. you can decide the standing case that limits it to the decision of the district court here. you could decide it as the ninth circuit did -- >> the problem -- the problem with the case is that you're

really asking, particularly because of the sociological evidence you cite, for us to go into uncharted waters, and you can play with that metaphor, there's a wonderful destination, it is a cliff. whatever that was. [laughter] >> but you're -- you're doing in a -- in a case where the opinion is very narrow. basically that once the state goes halfway, it has to go all the way or 70 percent of the way, and you're doing so in a case where there's a substantial question on -- on standing. i just wonder if the case was properly granted. >> oh, the case was certainly properly granted, your honor. i mean, there was a full trial of all of these issues. there was a 12-day trial, the judge insisted on evidence on all of these questions. this -- this is a -- >> but that's not the issue the ninth circuit decided. >> the issue -- yes, the ninth circuit looked at it and decided because of your decision on the romer case, this court's decision on the romer case, that

it could be decided on the narrower issue, but it certainly was an appropriate case to grant. and those issues that i've been describing are certainly fundamental to the case. and i don't want to abuse the court's indulgence, that what i -- you suggested that this is uncharted waters. it was uncharted waters when this court, in 1967, in the loving decision said that interracial -- prohibitions on interracial marriages, which still existed in 16 states, were unconstitutional. >> it was hundreds of years old in the common law countries. this was new to the united states. >> and what we have here -- >> so -- so that's not accurate. >> i respectfully submit that we've under -- we've learned to understand more about sexual orientation and what it means to individuals. guess the language that justice ginsburg used at the closing of the vmi case is an important thing, it resonates with me, "a prime part of the history of our constitution is the story of the extension of constitutional rights to people once ignored or excluded." >> thank you, counsel. general verrilli? >> mr. chief justice, and may it please the court -- proposition

>> -- >> you don't think you are going to get away with not starting? >> i thought i might. we don't have a formal position on standing, but i will observe that -- i will offer this observation based on a briefing. we do think that while it is not free of doubt, the better argument is that there is not

article 3 standing here. i want to go beyond summarizing. we do think with respect to standing that at this point, but the process over, petitioners have what is in that nature of a generalized grievance. have another official tie to the state that would result in any official control. rather tenuous, but today, question, and our interests are, justice alito, in tomorrow's issues where we have briefed the court tomorrow. with respect to the merits, two fundamental points lead to the conclusion that there's an equal protection violation here.

first, every warning flag that warrants exacting scrutiny is present in this case. and petitioners' defense of proposition 8 requires the court to ignore those warning flags and instead apply highly deferential lee optical rational basis review as though proposition 8 were on a par with the law of treating opticians less favorably than optometrists, when it really is the polar opposite of such a law. >> general verrilli, i could understand your argument if you were talking about the entire united states, but you -- your brief says it's only eight or nine states, the states that permit civil unions, and that's -- brings up a question that was asked before. so a state that has made considerable progress has to go all the way, but at least the

government's position is, if it has done -- the state has done absolutely nothing at all, then it's -- it can do -- do as it will. >> that gets to my second point, your honor, which is that i do think the problem here with the arguments that petitioners are advancing is that california's own laws do cut the legs out from under all of the justifications that petitioners have offered in defense of proposition 8, and i understand your honor's point and the point that justice kennedy raised earlier, but i do think this court's equal protection jurisprudence requires the court to evaluate the interests that the state puts forward, not in a vacuum, but in the context of the actual substance of california law. and here, with respect to california law, gay and lesbian couples do have the legal rights and benefits of marriage, full equality and adoption, full access to assistive

reproduction, and therefore, the argument about the state's interests that -- that petitioners advance have to be tested against that reality, and they just don't measure up. none of the -- >> well, the argument -- >> none of the -- >> justice breyer. >> what is the one -- look, a state that does nothing for gay couples hurts them much more than a state that does something. and, of course, it's true that it does hurt their argument that they do quite a lot, but which are their good arguments, in your opinion? i mean, take a state that really does nothing whatsoever. they have no benefits, no nothing, no nothing. ok? and moreover, if -- if you're right, even in california, if they have -- if they're right or, you know, if a pact is enough, they won't get federal benefits, those that are tied to marriage, because they're not married. so -- so a state that does nothing hurts them much more, and yet your brief seems to say it's more likely to be

justified under the constitution. i'd like to know with some specificity how that could be. >> well, because you have to measure the -- under the standard of equal protection scrutiny that we think this court's cases require. >> i know the principle, but i'm saying which are their good arguments, in your opinion, that would be good enough to overcome for the state that does nothing, but not good enough to overcome california where they do a lot? >> well, we -- what we're -- what we're saying about that is that we're not prepared to close the door to an argument in another state where the state's interests haven't cut the legs out from under the arguments. thei think -- i suppose caution rationale that mr. cooper identified with respect to the effects on children, if it came up in a different case with a different record, after all here, this case was litigated by petitioners on the theory that rational basis applied and they didn't need to show anything, and so they didn't try to show anything. our view is that heightened scrutiny should apply, and so i don't want to -- i don't want

to kid about this, we understand, that would be a very heavy burden for a state to meet. all we're suggesting is that in a situation in which the state interests aren't cut out from under it, as they -- as they are here, that that issue ought to remain open for a future case. and i -- and i think the caution rationale would be the one place where we might leave it open. because you can't leave it open in this case. >> general, there is an irony in that, which is the states that do more have less rights. >> well -- well, i understand that, your honor, but i do think that you have to think about the claim of right on the other side of the equation here. and in this situation, california -- the argument here that -- that gay and lesbian couples can be denied access to marriage on the ground of an interest in responsible procreation and child rearing just can't stand up given that the parents have full equality, the gay and lesbian parents have full equality apart from --

>> you want us to assess the effects of same-sex marriage, the potential effects on -- of same-sex marriage, the potential -- the effects of proposition 8. but what is your response to the argument which has already been mentioned about the need to be cautious in light of the newness of the concept of -- of same-sex marriage. the one thing that the parties in this case seem to agree on is that marriage is very important. it's thought to be a fundamental building block of society and its preservation essential for the preservation of society. traditional marriage has been around for thousands of years. same-sex marriage is very new. i think it was first adopted in the netherlands in 2000. dataere isn't a lot of about its effect. and it may turn out to be a -- a good thing; it may turn out not to be a good thing, as the

supporters of proposition 8 apparently believe. but you want us to step in and render a decision based on an assessment of the effects of this institution which is newer than cell phones or the internet? i mean we -- we are not -- we do not have the ability to see the future. on a question like that, of such fundamental importance, why should it not be left for the people, either acting through initiatives and referendums or through their elected public officials? wouldave four points i like to make to that in response to that, justice alito, and i think they are all important. first, california did not through proposition 8 do what my friend mr. cooper said and push a pause button. they pushed a delete button. this is a permanent ban. it's in the constitution. it's supposed to take this issue out from the legislative process. so that's the first point. second -- >> well, just in response to that, of course the constitution could be amended,

and i think i read that the california constitution has been amended 500 times. >> but the -- >> so it's not exactly like the u.s. constitution. >> but it does -- of course not. but it is -- but the aim of this is to take it out of the normal legislative process. the second point is that, with respect to concerns that your honor has raised, california has been anything but cautious. it has given equal parenting rights, equal adoption rights. those rights are on the books in california now, and so the interest of california is -- that petitioners are articulating with respect to proposition 8, has to be measured in that light. >> yeah, but the rest of the country has been cautious. >> and that's why -- >> and we're -- and you are asking us to impose this on the whole country, not just california. >> no, respectfully justice scalia, we are not. our position is narrower than that. our position -- the position we have taken, is about states, it applies to states that have, like california and perhaps other states, that have granted these rights short of marriage, but --

>> i don't want to -- i want you to get back to justice alito's other points, but is it the position of the united states that same-sex marriage is not required throughout the country? >> we are not -- we are not taking the position that it is required throughout the country. we think that that ought to be left open for a future adjudication in other states that don't have the situation california has. >> so your -- your position is only if a state allows civil unions does it become unconstitutional to forbid same-sex marriage, right? >> i see my red light is on. >> well, you can go on. >> thank you. our position is -- i would just take out a red pen and take the word "only" out of that sentence. when that is true, then the equal protection clause forbids the exclusion of same-sex marriage, and it's an open question otherwise. and if i could just get to the third reason, which i do think is quite significant. the argument here about caution

is an argument that, well, we need to wait. we understand that. we take it seriously. but waiting is not a neutral act. waiting imposes real costs in the here and now. it denies to the -- to the parents who want to marry the ability to marry, and it denies to the children, ironically, the very thing that petitioners focus on is at the heart of the marriage relationship. >> but you are willing to wait in the rest of the country. you saying it's got to happen right now in california, but you don't even have a position about whether it's required in the rest of the country. >> if -- with respect to a state that allows gay couples to have children and to have families and then denies the stabilizing effect -- >> so it's got to happen right away in those states where same-sex couples have every legal right that married couples do. >> well, we think -- >> but you can wait in states where they have fewer legal rights. >> what i said is it's an open question with respect to those states and the court should wait and see what kind of a record a state could make.

but in california you can't make the record to justify the exclusion. and the fourth point i would make on this, recognizing that these situations are not -- >> how would the record be different elsewhere? >> well, they might try to make a different record about the effects on children. but there isn't a record to that effect here. and the fourth point i would make, and i do think this is significant, is that the principal argument in 1967 with respect to loving and that the commonwealth of virginia advanced was -- well, the social science is still uncertain about how biracial children will fare in this world, and so you ought to apply rational basis scrutiny and wait. and i think the court recognized that there is a cost to waiting and that that has got to be part of the equal protection calculus. that's-- so i do think quite fundamental. >> can i ask you a problem about -- >> sure. >> i -- it seems to me that your position that you are supporting is somewhat internally inconsistent. we see the argument made that there is no problem with extending marriage to same-sex

couples because children raised by same-sex couples are doing just fine and there is no evidence that they are being harmed. and the other argument is proposition 8 harms children by not allowing same-sex couples to marriage. which is it? whatll, i think proposition 8 does is deny the long-term stabilizing effect that marriage brings. that's -- that's the argument for -- for marriage, that -- >> but you also tell me there has been no harm shown to children of same-sex couples. >> california -- there are 37,000 children in same-sex families in california now. their parents cannot marry and that has effects on them in the here and now. a stabilizing effect is not there. when they go to school, they have to, you know -- they don't have parents like everybody else's parents. that's a real effect, a real cost in the here and now. >> well, the real cost right now would be you're asking me to write these words -- "a state

that has a pact has to say 'marriage,'" but i'm not telling you about states that don't. well, i would guess there is a real-world effect there, too. that states that are considering pacts will all say "we won't do it," or not all, but some would. and that would have a real effect right now. thinkinge moment, i'm it's much more harmful to the gay couple, the latter than the former. but you won't give me advice as the government as to how to deal with that. >> well, we -- we think that, as i started my argument, your honor, that all the warning flags for exacting equal protection scrutiny are present here. this is a group that has suffered a history of terrible discrimination. the petitioners don't deny it. petitioners said at the podium today that there is no justification for that discrimination in any realm other than the one posed in this case, and the -- and so when those two factors are present, those are paradigm considerations for the

application of heightened scrutiny, and so i don't want to suggest that the states that haven't taken those steps -- >> but they are not the only ones. >> -- that states that haven't taken this step, that they are going to have an easy time meeting heightened scrutiny, which i think has to apply -- >> suppose one of those states repeals its civil union laws? >> it would be a different case. and all i'm saying is that the door ought to remain open to that case, not that it would be easy for the state to prevail in that case. >> thank you, general. mr. cooper, to keep things fair, i think you have 10 minutes. >> thank you very much. >> and you might address why you think we should take and decide this case. >> yes, your honor, and that is the one thing on which i wholeheartedly agree with my friend mr. olson. this case was properly -- is now properly before the court and was properly granted, even if, even if, your honor, one could defend the specific judgment below for the ninth circuit, a defense that i haven't heard

offered to this court. judicial redefinition of marriage even in -- even if it can be limited to california, well worthy of this court's attention, particularly, your honor, as it come from a single district court judge in a single jurisdiction. i would also like -- >> i think that begs your -- mr. olson doesn't really focus on this. if the issue is letting the states experiment and letting the society have more time to figure out its direction, why is taking a case now the answer? >> because, your honor -- >> we let issues perk, and so we let racial segregation perk for 50 years from 1898 to 1954.

>> your honor, it is hard to -- >> and now we are only talking about, at most, four years. case is hard to imagine a that would be better, or more thoroughly, i should say, at least, briefed and argued to this court. >> it's too late for that, too late for that now, isn't it? i mean, we granted cert. i mean, that's essentially asking, you know, why did we grant cert. we should let it percolate for another -- you know, we -- we have crossed that river, i think. >> and in this particular case, to not grant certiorari is to essentially bless a judicial decision that there -- that at least in the state of california, the people have no authority to step back, hit the pause button, and allow the experiments that are taking place in this country to further mature; that in fact, at least in california -- and it's impossible to limit this ruling, your honor, even to california, even the solicitor argument, he says,

applies to at least eight states. it's impossible to limit these propositions to any particular jurisdiction, so this court would be making a very real decision with respect to same- sex marriage if it should simply decide to dismiss the writ as improvidently granted, justice kennedy. and let's just step back and just consider for a moment the solicitor general's argument. he is basically submitting to the court that essentially the one compromise that is not available to the states is the one that the state of california has undertaken; that is, to go as far as the people possibly can in honoring and the families and the relationships of same-sex

couples, while still preserving the existence of traditional marriage as an institution. that's the one thing that's off the table. >> i thought he was saying, mr. cooper, that it's not before the court today. againstmber loving virginia was preceded by the mclaughlin case. so first there was the question of no marriage, and then there was marriage. so, in that sense i understood the solicitor general to be telling us that case is not before the court today. >> forgive me, justice ginsburg. the case of -- what case isn't before the court? >> i think it was mclaughlin against florida. >> yes. >> it was cohabitation of people of different races. >> certainly. >> and the court took that case and waited to reach the merits case.

>> it's -- yes, your honor. and well, forgive me, your honor. i'm not sure i'm following the court's question. >> i may -- my memory may be wrong, but i think the case was that people of different races were arrested and charged with the crime of interracial cohabitation. and the court said that that was invalid. >> yes. >> unlawful. >> yes. thank you, your honor. forgive me. and, you know, i'm glad that counsel for the respondents mentioned the loving case, because what this court -- what this court ultimately said was patently obvious, is that the colors of the skin of the spouses is irrelevant to any legitimate purpose, no more so than their hair colors, any legitimate purpose of marriage, that interracial couples and same-race couples are similarly situated in every respect with

respect to any legitimate purpose of marriage. that's what this question really boils down here, whether it can be said that for every legitimate purpose of marriage, are opposite-sex couples and same-sex couples indistinguishable, indistinguishable. and with all due respect to counsel and to the respondents, that is not a hard question. if, in fact, it is true, as the people of california believe that it still is true, that the natural procreative capacity of opposite-sex couples continues to pose vitally important benefits and risks to society, and that's why marriage itself

is the institution that society has always used to regulate those heterosexual, procreative -- procreative relationships. counsel -- the solicitor general has said that the ban that the proposition erects in california is permanent. well, it's -- certainly that is not the view of the respondents and what we read every day. this is not an issue that is now at rest in the state of california, regardless -- well, unless this court essentially puts it to rest. that democratic debate, which is roiling throughout this country, will definitely be coming back to california. it is an agonizingly difficult,

for many people, political question. we would submit to you that that question is properly decided by the people themselves. thank you, mr. chief justice. >> thank you, counsel, counsel. the case is submitted. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2013]

>> lets get over here. good. those of you who were in court today saw why i like get a lot better when this guy is on my side as opposed to against me. we had a very thoughtful

hearing. appreciate the court's attention to this issue and the preparation of all the justices. there were a number of thoughtful and tough questions to both sides. it is now in the hands of the supreme court. long a few years and we are all encouraged that we are within a few months of a final decision on this terribly important case. i think they're most remarkable thing that happened was that there was no attempt to defend the ban on gay and lesbian marriage. there was no indication that any harm. all that was said was this important constitutional right ought to be decided at the same level. but it is the federal constitution we have in the federal constitution that guarantees fundamental rights to every citizen in every state.

when we are down simply to the question of how do you establish marriage equality, you can see how far we have come in the last few years. to hear in aing moment from chris and sandy to have been at the beginning of this case right up to now, they are the people about him, for whom this case is about. they and others like them in california and the united states. their right to be treated with dignity, respect and equality under the law in california and throughout the united states. one of the most important things that happened today was the fact the american people were listening to the argument. as david was saying, the other side, nobody really of lord a defense for the awful discrimination that takes place when gay and lesbian citizens are denied the right to have

their family relationship recognized and respected equally. everybody starting later this afternoon, people are going to be able to listen to these arguments and decide for themselves. we are, but where the american people are going with it. we do not know what the supreme court is going to do, we are gratified that listened, they heard, they ask hard questions and there is no denying where the right is and we hope the supreme court will come out in that way when they make this decision in june. >> based on the questions, do you feel confident the court is ready to make a sweeping ruling in this case? >> based on the questions the justices asked, i have no idea. the court has several ways to decide this case, from a very broad, sweeping conclusion with

respect to the rights of citizens in this country to a narrow ruling that would be limited to california. the court never gives you an idea of how they're going to decide. they have read the briefs, they care about the issue, then we will see what they decide. david and i will answer more questions, but i one everyone to hear from the individuals who this case is about. sandy, chris, jeff, and paul the of that everyone 0 right from the beginning of this case that we are in love with them and we are humbled by the fact we get to speak for them in the ad state supreme court. i am chris perry, the plaintiff and the case you just heard of the supreme court. in this country, as children, we learned there is a founding principle -- all men and women

are created equal. we want is equality because this is a founding principle. unfortunately, with the passage of proposition 8, we have learned there are a group of people in california who are not being treated equally. that was recognized by a federal court and the ninth circuit. we look forward to a day when proposition 8 is finally and officially eliminated and equality is restored to the state of california. am sande spear, and like all americans, i believe in equality. i also believe in our judicial system and i have great faith in it. but more than anything, i believe in love. proposition 8 is a discriminatory law that hurts people. hertz gays and lesbians in california. it hurts the children we are raising and it does so for no good reason. it is our hope we can move forward and remove this harm

from societies of gays and lesbians in california can go back to their lives, living equally among their neighbors with the same rights and protections as everybody else. thank you very much. beginning,from the this case has been about securing the right to marry the person i love and having the equal access to the most important relationship i know in life, and that is marriage. i look forward to the day where i can be married to the person i love. it is exactly that and i cannot wait to start my family with jeff. we are so pleased to have had this opportunity to present his case to the supreme court today. it has been the culmination of a long and amazing journey and we are so thankful for ted koppel

some. looking forward to the court's decision. thank you. sandy and i would like to introduce you to two of our sons. spencer and elliott. >> hello. my name is spencer. this is my twin brother, elliott. we are two of chris and sandy path very proud sons. on behalf of myself and my twin brother, i just want to say how incredibly proud we note -- how incredibly proud we of our of our parents. we love them, we love our family and we look forward to the day when we will be treated equally just like our neighbors and family. [applause] >> and david and i will be willing to answer questions, but it is important to introduce at

griffin, the chairman and president of the human rights campaign who has been with this case from the beginning, right from the very start. he he recruited me and together, we recruited david to handle this case. has been almost four years since we filed the case. it has been for a half years since we first met and started talking about what we would do in this case. i cannot say enough wonderful things about chad griffin and everything he has done for the rights of gay and lesbian citizens and what the american foundation for equal rights, the foundation that has supported this campaign and the human rights campaign has done for equal rights for american citizens. >> it thank you very much. is bank tagged and david who enabled us to lift the partisan bail from which this issue has so often been

discussed and for the first time, the spotlight on the human faces of suffering. paul and jeff, to look them in the face and tell them they and their families deserve anything other than equality under the law is something i challenge anyone to do. we are honored that our court system has worked and we have gone from the district court in northern california always here to washington before the united states supreme court, and we are cautiously optimistic as we wait and see what this court will do. thank you very much. >> if you have any questions other than how the court is going to decide the case. rule the court were to petitioners don't have standing, that would be a win for you, would it not? >> yes.

i will mention briefly, there are four ways we could succeed in this case. because the state of california decided proposition 8 was unconstitutional, and all day -- although they were enforcing it, they quit defending it once the district judge ruled it was unconstitutional. then you have the law that no one could appeal his case and the proponents in here today, the author of the measure did not have the right to carry it forward. finding proposition 8 unconstitutional stands and the officials of california will be enjoined from enforcing it and that would be and of proposition 8. or the ninth circuit besides because of the circumstances in california, proposition 8 was on a constitutional because of those circumstances in california. the states that

ise decided that structure unconstitutional because california and the states have admitted gay and lesbian individuals can live together, have families, and raise children and they do not have any defense on that. we made ist argument that it just wrong. it is not consistent with the ideals, laws and constitution of this country to take our gay and lesbian brothers and sisters and put them in a class and deny the rights we give everyone else. that is the broadest possible out, and any one of those four outcomes would be a success in overturning proposition 8. >> i got the impression they did not find an argument anywhere they really loved. i don't think you can read that much into the questions.

i think what they are doing is they are trying to probe but both sides in terms of arguments. they did have four alternatives and i think the questions jumped around as they tried to evaluate each of the alternatives. intog to read too much those questions is a risky proposition. they were very reluctant -- >> i think there were a number of questions about the broad issues. i think a number of questions went directly to whether it ought to be a broad ride. they are exploring every one of the different for alternatives. >> they seem incredibly energized.

would you describe them? >> the supreme court is a marvelous institution. they hear the cases the people bring to them and their lawyers get to stand in front of the justices and anyone standing in front of the coram, they are dealing with the issues that asking hard questions and listening to the answers and they will write an opinion. the supreme court is a marvelous institution and they don't miss the opportunity when an argument is presented to ask penetrating hard questions. the questions may not reveal how they are thinking that they want to know the answer to those questions so they put every advocate to the test. to say one thing about david and i coming together. we come from different perspectives on the political

spectrum, so to speak. our coming together is intended to make the point to america that this is not a democratic issue, republican issue, this is an issue of american constitutional rights and everyone should agree on a thing is we have been talking about. the equal protection of the laws it is due protection of laws and david and i are trying to make the point that it is not something that is partisan or anything like that. it is about american values. >> this is in terms of the outcome, whether this is a landmark case or will it be a landmark case, it is so valuable to so many of our citizens to be treated equally and with dignity and as david

said, it is maybe the major civil rights battle we're fighting in this country and it is so important to our values as americans that it be decided in the right way. thank you very much. >> please identify yourself and make sure you face the camera. >> my name is charles cooper. i represent the petitioners in this case. the parties and their lawyers have litigated this case for almost four years. finally to this point. the case as you have seen it was presented to the court. court asked some penetrating, measured questions on both sides.

now what is in the hands of the court. hopefully we'll have a prompt response. it's a difficult, controversial issue. there is no way to some of my argument in a couple of sentences. we believe proposition 8 is constitutional and the plays for the decision to be made it is with people, not with the courts. >> thank you very much. >> good afternoon. i'm the general counsel for the protect marriage coalition. today, we feel we presented the winning case for marriage. we think our lead counsel did withanding job delivering

great clarity and we think the hearing went very well. thank everybody who helped pass proposition 8 and stepped through this long, lengthy battle of nearly four years. a propositiond to that will impose the will of the people. [inaudible] >> we are going to stand on all the arguments we made today and we're not going to read argue the case on the sidewalk. we think we were able to say everything we wanted to say. we thought the questions from

the court were probing but a good question them thoughtful questions for both sides. i think we will see a very reasoned decision cannot of this court. to thateactions question inside there were that the court seems to be reluctant to issue a sweeping kind of rule. what does that tell you in terms of how this is going to play out? theithout predicting results, there are multiple options the court is exploring. to see whicho have direction the court does. different views were represented by proponents of proposition 8, the challengers of proposition 8, and the solicitor general's office. the court will have to choose between those visions of the outcome of that case. are you prepared to accept

that? >> that is not an issue in this case because the california supreme court has already said marriage is created for the brief time it was created in california will be recognized. >> then this whole battle starts all over again. >> our position has been the political process state by state, states deciding for themselves, that is where this debate belongs. this is not something that should be imposed by the judiciary, by the court. returns tois issue the legislature and the representatives were belongs. >> one of the big issues in this case is the integrity not only of states' rights, but the integrity of the initiative process. if it is determined the

initiatives passed by voters can be vetoed by that government then that would be a fatal blow to the initiative process. >> think we're done? >> yes. >> yes? the ideahat leave open that this is a state issue and will be a referendum again in other states? >> i am not going to make a prediction on that. thank you for your question. can you talk about -- they were asking about the harm that would be done by asking same-sex couples to marry. what is your answer? >> briefly but, i'll make a small exception talk about the merits -- both sides have agreed

in this case that it's impossible to know with any certainty the changes that would be worked on society by redefining a fundamental change in marriage. thank you for your questions. >> you can find more from last week's oral arguments on same- sex marriage, including stakeouts with attorneys on both cases and forums breeding and reacting to cases online in our c-span video archive. >> on the next "washington dirl" we will talk about the air traffic control towers that are being closed due to sequestration.

schiavo. is mary been a look at the future cost of health care. we will explore the irs and how it processes the 237 million tax returns filed last year worth more than $2 trillion. "washington journal is live at 7:00 eastern on c-span. >> mr. secretary, we will put them down as undecided. [laughter] [applause] >> mr. chairman, as i listened to those comments, it struck me what a wonderful thing free- speech is. >> that was the hearing where doldrums fell was making the

justifications for attacking iraq. what you did not hear in that clip for questions we got a chance to ask him which is a much money is halliburton going to make? how many u.s. soldiers will be killed in this war? how many iraqi civilians will die from this venture? i would like those questions answered now. >> more from the founder of code &ak, tonight on c-span's "q ." >> president obama attended church at st. john's church today. every president has visited the church since james madison. s as you can see the obama they walked back.