. this is 20 minutes. we are here to rule on the supreme court's ruling on the defense of marriage act and proposition 8. votes of ad the bipartisan majority of congress. this is a dangerous precedent which tips power away from on the national marriage policy. we must work to defend the right of americans to make marriage policy. additionally, the proposition 8 decision is a loss for those who have voiced their support as marriage between one man and one woman.

they abandoned the people of california and. with the supreme court denying standing, they have left people voiceless. -- supreme court that marriagerm exists between a man and a woman and is a necessary building block of a stable society. the debate over marriage will continue with states leading the way. we must defend the right of americans to make policy. we must promote marriage between one man and one woman. we up all the reality that every child deserves a mom and a dad. society as a whole benefits as they do. and now we have statements by some of our other members here. first, steve so lease from louisiana.

>> it's a sad day when unelected judges change the definition of marriage and change their will of elected representatives who have made it clear than want to maintain the tradition of marriage between one man and one woman. far from resolving this issue, the definition of marriage will be fought out in courtrooms by unelected judges as opposed to instead oflatures unelected judges making that decision. .his creates a lot more chaos doma that was passed by a bipartisan coalition of congress was in place.

>> i'm john fleming from louisiana. i would like to comment first on marriage itself. it's a fundamental building block of our civilization. certainly it's the ideal model for which we raise children, marriage between a bond between one man and one woman. with regards to the issue at hand, today's decisions, i agree. the supreme court got it wrong and it is surprising in the case of obamacare, a bill that was passed. on a partisan basis, unpopular, and somehow the supreme court had to make that constitutional. the good part about dilma --

doma is the 38 states that do not recognize anything but traditional marriage are not forced to recognize anything that they themselves do not, through their own laws, deem to be appropriate marriages. lace toan important work from. >> i'm from the 16th congressional district of pennsylvania. i cannot disagree more than with today's supreme court decision. congress was well within its rights. doma did not dictate to states but now the supreme court wants to direction dictate to the american people of what legislators can do. i want to thank speaker boehner for defending the house of representives and law.

their rights were compromised when state officials advocated their responsibility to represent the people. in both of these cases the people acted through the democratic process to define marriage as between one man and one woman and now see their decision invalidated by the court. the majority got it wrong in both cases but they didn't take the more radical step to redefine marriage for every state. i think this decision will have negative consequences for children who are raised by a mom and a dad. if tim is here he's next or scott garrett. >> thank you. i'm scott garrett from new jersey.

it's been the precedent throughout our nation's history that a court's decision cannot decide for the american people. we must not forget that our constitution established for we the people. the court, therefore, obviously got it wrong in both cases. no prop 8 and in doma. in prop 8 the definition of marriage should not be in the hands of the courts, instead it should be returned to the people. the institution of marriage should not be manipulated either by the courts, who are unelected, nor by elected officials who have failed to uphold their responsibility. in doma case, the court's failure leads to states

direction taretting to the federal government and in that case the courts got federalism wrong. regardsless of the ruling today, decisions like this rest in the hands of the people and debate over marriage policy will and should continue. i yield now. >> in my state, michigan, we have a clearly defined marriage to be a relationship between man and a woman. we did not define what a love relationship is or what a relationship is in any case. we did not say those relationships can't continue. we said for the best interest of society itself and more importantly to make sure we understand that the desires of adults are not more important than the needs of children. we have defined marriage to that relationship between a man and a woman for the best interest of

those children. it's also for the best interest of society because without the design building block, the designed building block of a marriage, of a man and woman coming together society itself is at risk and cannot continue. i believe that the bad decision, the wrong decision of the supreme court today, on these two cases taking away the authority and the right of the people, taking away the voice of the people will only continue the debate that goes on and it will probably be good for our country. as we look at what works and what is best for our children and goes away from declaring that our needs being the most important thing and saying how can we do best for those counting on us for the future. i preach standing here with my colleagues today and i preach standing with our -- appreciate

standing with our states. doug has come in so i will turn it over to you. >> good afternoon. well, beside the ideal that marriage is debased by this decision and the moral fibers have been effected long term. as a california legislator i've lived in a state legislator as a citizen as well. as a federal legislator we see this happen today. one thing comes to my mind, when you're out there on the street and you're campaigning going door- to-door, a decision like this makes people's voice muted and make people say why should i even vote. that takes away the faith people have in the system as well as when they see the elected

officials like the attorney general in california who refused, because of politics, to dend what the people had done. not once but twice in california, prop 22 and prop 8 more recently. when politics enter into it and say we're not going defend what the people say no one will stand up for them in court. this is a bad decision for families as well as legal process and voters and people's faith in their government. where do we go from here? i don't know. i don't think it ends here because i believe they won't be satisfied with this decision. they will want to go and force their way into people's religious freedoms. churches may have to perform things they are against within their institutions.

i don't know where it does end. i do know it is a sad day for america. >> thank you, i'm randy weber from texas 14 and i'm extremely disappointed in the supreme court's decision. it seems to me they are in in collusion with the president and his justice department when they decided to not defend doma that they could selectivively enforce whatever laws they feel like they want to. unfortunately, it has been at the expense of children. marriage is the government's least restrictive way of providing a good upbringing of children. it is also at the expense of religious institutions. i believe this is one more attack of the religious institutions. religion is the foundation of our court and once again, we see a supreme court out of control that will override voters wishes

and institute their policy in its place. it's a sad day in america. we need to make sure that we stand up for the least protected among us, those children, whose statisticics will tell you have the best chance of growing up and being protective citizens in our society. they ignored the wishes of american voters and ignored the needs of children. i will remain committed to fighting this decision to be a part of the discussion that will be ongoing and seeing the state's rights are upheld went we'll continue to promote this great society that we have built on those two pillars. i'm going to yield to my good

friend from texas. >> thank you. i appreciate what you've done putting this all together. it is a sad day. some may try to brand us hateful. this is a group that has love and compassion for our country. when you know that the president now we know, he went to a debate with rick warren, a very informal one. he abandoned what he had been saying previously about homosexual marriage and support for it and said what he knew what he needed to say after he was elected. after he won the second term and actually before he won the second term, he comes out and says something different.

we have an attorney general who has come before our judiciary committee and lied. either lied to us or lied to the court. now we have a decision today that includes it has to include for the decision to stand a lie. on page 22 of the windsor decision, the principles purpose is to impose inequality not for reasons like government inefficiency. they know that is a lie. they are smart individuals. they know that is a lie. they know that is not the principle purpose. it is the purpose, you've heard my friends up here site. i read the windsor decision first before i read the prop 8 decision. i knew for the court to be consist, since they said members of congress basically would have a standing to defend a law that

they passed, which gave the supreme court the authority to strike it down. well, at least on the prop 8 case they would have to say those who push through this referendum, the people who pushed it through and passed the referendum, the voters, they would have to have standing to be honest and consistent. they would have to say they have standing and they would have to site all these provisions in wind sore that says the state has total authority to decide what marriage is in that state, in essence.

then you read the prop 8 decision and you find they were intellectually dishonest and inconsistent because they then struck down the party as having standing that actually passed the referendum. so dishonesty, inconsistentcy. for them, i don't know what kind of walls this court has been behind for them to make the statement at the bottom of page 13, for others, however, came the beginnings of a new perspective, a new insight because they just said marriage between a man and a woman no doubt was thought of as essential. the very definition of that term and the role throughout the history of civilization but apparently, they were not aware that the most wiseman in history said there's nothing new under the sun and this isn't new. it is tried over and over and it is usually tried at the great end of great civilization. cy will remind you of the document that allows the united states to claim its independence

and be free to be recognized by england, the treaty of paris. if you look at that document you see big, bold letters at the very top. put yourself in the place of the americans, what would you make britain swear under that they would be so afraid to go back on their word? what would you make them swear under that document that required england to recognize our independence? what our founders came up are these words, in the name of the most holy and undivided trinity. they did not believe that even the adversaries of war would have the nerve to go against

that. what we now have today is a wholly quintet who goes against the laws of nature and nature's god and this is very unfortunate. >> i'm michelle bachman from the sixth district of minnesota. these decisions are offensive on so many levels primarily because we're a nation of laws, not men. we're a nation that existed under the concept of limited government. what the supreme court ruled was on the because of equal protection. yet, in one of the greatest ironies in this decision they denied equal protection to every american in the united states. how did that i do that? because they under cut the people's representives when they voted on the defense of marriage act in the first place. the people were dually represented, they represented the will of their constituencies and the supreme court under cut the equal protection of every person who elected their representive. they did it more so, even more personally in the california

case where voters directly went to the polls and cast their vote. by the way, the same year they voted barack obama preponderate they voted to define marriage between one man and one woman in the state of california. but the supreme court denied the equal protection, the right of that vote to every californian. this is historic. you see what the supreme court is saying is they are asserting the supremacy of the court overall three branches of government. they are saying we do not have equal branches, the executive, the congress, the court.

we have the supreme court. so you have five individuals on a court who have decided it is their morality or immoore mallty they view of morality or immorality, five people, is that a denial of equal protection? now we have an effective oligarchy of five. we are becoming a nation that our founders would no longer recognize because as a nation that exists under the rule of law, as limited government that means we as member of congress, we can't do anything we want. we are constrained by article one and specifically by article one section eight. we are constrained. the executive is constrained by our constitution.

let this be a news flash to the supreme court, they too are constrained by our constitution. every time the supreme court meets, its then another constitutional convention because they say it is. i believe that the people are more important than the supreme court. i do believe that the people will have their sway. this decision is one that is profound because the supreme court not only attacked our constitution today, they not only attacked the equal protection right of every citizen under our constitution, they attacked something they have no jurisdiction over whatsoever, the foundational unit of our society, which is marriage. that is something that god created. that is something that god will define. the supreme court, though they may think so has not arisen to the level of god.

we are here today standing in support of our constitution and for the institution of marriage. i yield back. >> thank you. i'm from the state of kansas i apologize walking in a little bit late and hopefully are not repeat things. one good thing out of the decision, the court did not declare there is a right to same-sex marriage. the state of kansas will be able to maintain its marriage amendment, at the same time, the voters in california, seven million voters have been overruled by the court's ruling. what i'm afraid is that gets lost is a narrow radical part of the court has substituted their will of marriage over voters and their representives here in washington, d.c. those who hurt the most are the children of america. very clearly, every child in america deserves a mom and a

dad. with this attempt to redefine marriage, using the courts because they failed at numerous cases, i think the hurts the most is our children, decades of research and human experience indicated a stable marriage is the best thing to raise their children. i fear for their future. i think we have some options in order to do so and again, it is a sad day for the children of america. i yield back. >> thank you for being here today. this concludes our opportunity here to share with you today our thoughts. >>ank you very much. it's not a press conference if you don't take questions. the supreme court arguments in proposition 8 and defense of marriage act. in discussing the relevance of

broadcasting services. >> coming up on the next "washington journal," discussing the supreme court ruling on the defense of marriage act and immigration legislation in the senate. then more on the supreme court- gay marriage decision, immigration, with seven -- representative joseph crowley from new york. and then a look at diplomatic immunity with matthew lee of the associated press. "washington journal," every morning at 7:00 a.m. eastern on c-span. >> testifying before the house ways and means committee thursday on the targeting of conservative groups. a.m.coverage at 10:00 eastern on c-span 3.

>> there are 1400 monuments and markers on the steel. the peak monument time is the 1880's-1890's. they want to make sure with a did here is remembered. , we have other ways of commemorating things like that, but back in those days, that's how they commemorated the service. this is monument to the .oldiers, to their leaders the monuments really help us interpret the story. they are in the ground where they were fought. most of them are union monuments. be a union victory and, quite honestly, by the time the war and there's not enough money in the south to build monuments, especially in northern states. >> live all-day coverage of the 150th anniversary of the battle of gettysburg sunday starting at 9:30 a.m. eastern with

historians, scholars and authors. 5:30 p.m., your calls and tweets for historians. at 8:00, the commemorative ceremony with doris kearns goodwin's. commemorative readings. and a candlelight for the national cemetery. and then more calls and tweets for civil war institute director. all-day sunday on "american history tv," c-span 3. >> the supreme court cleared the way for supreme -- same-sex marriages to continue. 5-4.ourt decided

they do not have the right to appeal the district court ruling striking down the measure. proposition 8 is a 2008 ballot decision to recognize marriage between one man and one woman. here is the oral argument, one hour and 20 minutes. >> we'll hear argument this morning in case 12-144, hollingsworth v. perry. mr. cooper? >> thank you, mr. chief justice, and may it please the court -- new york's highest court, in a case similar to this one, remarked that until quite recently, it was an accepted truth for almost everyone who ever lived in any society in which marriage existed -- >> mr. cooper, we have jurisdictional and merits issues here. maybe it'd be best if you could begin with the standing issue. >> i'd be happy to, mr. chief justice. your honor, the official proponents of proposition 8, the

initiative, have standing to defend that measure before this court as representatives of the people and the state of california to defend the validity of a measure that they brought forward. >> have we ever granted standing to proponents of ballot initiatives? >> no, your honor, the court has not done that. but the court has never had before it a clear expression from a unanimous state's high court that -- >> well, this is -- this is -- the concern is certainly, the proponents are interested in getting it on the ballot and seeing that all of the proper procedures are followed, but once it's passed, they have no proprietary interest in it. it's law for them just as it is for everyone else. so how are they distinguishable

from the california citizenry in general? >> they're distinguishable, your honor, because the constitution of the state of california and its election code provide, according to the unanimous interpretation of the california supreme court, that the official proponents, in addition to the other official responsibilities and authorities that they have in the initiative process, that those official proponents also have the authority and the responsibility to defend the validity of that initiative -- >> i guess the attorney general of this state doesn't have any proprietary interest either, does he? >> no, your honor, nor did -- >> but he can defend it, can't he -- >> nor did -- >> because the law says he can defend it. >> that's right, your honor. nor did the legislative leaders

in the karcher case have -- >> could the state -- >> any particular enforcement -- >> could -- could the state assign to any citizen the rights to defend a judgment of this kind? >> justice kagan, that would be a -- a very tough question. it's by no means the question before the court, because -- because it isn't any citizen, it's -- it is the -- it is the official proponents that have a specific and carefully detailed >> well, i just -- if you would on the hypothetical -- could a state just assign to anybody the ability to do this? >> your honor, i think it very well might. it very well might be able to decide that any citizen could step forward and represent the interests of the state and the people in that state -- >> well, that would be -- i'm sorry, are you finished? >> yes, your honor. >> ok. that may be true in terms of who

they want to represent, but a state can't authorize anyone to proceed in federal court, because that would leave the definition under article iii of the federal constitution as to who can bring -- who has standing to bring claims up to each state. and i don't think we've ever allowed anything like that. >> but, your honor, i guess the point i want to make is that there is no question the state has standing, the state itself has standing to represent its own interests in the validity of its own enactments. and if the state's public officials decline to do that, it is within the state's authority surely, i would submit, to identify, if not all -- any citizen or at least supporter of the measure, certainly those, that that very clear and identifiable group of citizens >> well, the chief -- the chief justice and justice kagan have given a proper hypothetical to test your theory. but in this case the proponents, number one, must give their official address, they must pay money, and they must all act in unison under california law. so these five proponents were required at all times to act in

unison, so that distinguishes -- and to register and to pay money for the -- so in that sense it's different from simply saying any citizen. >> but of course it is, and i think the key -- >> but can you tell me -- that's a factual background with respect to their right to put the ballot initiative on the ballot, but how does it create an injury to them separate from that of every other taxpayer to have laws enforced? >> your honor, the question before the court, i would submit, is not the injury to the individual proponents, it's the injury to the state. the legislators in the karcher case had no individual particularized injury, and yet this court recognized they were

proper representatives of the state's interests, the state's injury -- >> at least one of the amici have suggested that it seems counterintuitive to think that the state is going to delegate to people who don't have a fiduciary duty to them, that it's going to delegate the responsibility of representing the state to individuals who have their own views. they proposed the ballot initiative because it was their individual views, not necessarily that of the state. so -- >> well -- >> justice scalia proffered the question of the attorney general. the attorney general has no personal interest. >> true. >> he has a fiduciary obligation. >> the attorney general, whether it's a fiduciary obligation or not, is in normal circumstances

the representative of the state to defend the validity of the state's enactments when they are challenged in federal court. but when that officer doesn't do so, the state surely has every authority and i would submit the responsibility to identify particularly in an initiative -- an initiative context. >> why isn't the fiduciary duty requirement before the state can designate a representative important? >> your honor, i would submit to you that i don't think there's anything in article iii or in any of this court's decisions that suggest that a representative of a state must be -- have a fiduciary duty, but i would also suggest -- >> well, generally you don't need to specify it because generally the people who get to enforce the legislation of the government are people who are in government positions elected by

the people. >> and, your honor -- >> here these individuals are not elected by the people or appointed by the people. >> and the california supreme court specifically addressed and rejected that specific argument. they said it is in the context when the public officials, the elected officials, the appointed officials, have declined, have declined to defend a statute. a statute that, by the way, excuse me, in this case a constitutional amendment, was brought forward by the initiative process. the court said it is essential to the integrity, integrity of the initiative process in that state, which is a precious right of every citizen, the initiative process in that state, to ensure that when public officials -- and after all, the initiative process is designed to control those very public officials, to take issues out of their hands. and if public officials could effectively veto an initiative by refusing to appeal it, then the initiative process would be

invalidated. >> that's -- historically, i think, 40 states, many states have what was called a public action. a public action is an action by any citizen primarily to vindicate the interest in seeing that the law is enforced. now, that's the kind of action i think that this court has interpreted the constitution of the united states, case in controversy, to say that it does not lie in the federal system. and of course, if that kind of action is the very kind that does not lie, well, then to say, but they really feel it's important that the law be enforced, they really want to vindicate the process, and these are people of special interests, we found the five citizens who most strongly want to vindicate the interest in the law being enforced and the process for making the law be enforced, well, that won't distinguish it from a public action. but then you say, but also they are representing the state. at this point, the dellinger brief which takes the other side of it is making a strong argument, well, they are really

no more than a group of five people who feel really strongly that we should vindicate this public interest, and have good reason for thinking it. so you have read all these arguments that it's not really the agent and so forth. what do you want to say about it? >> what i want to say, your honor, is according to the california supreme court, the california constitution says in terms that among the responsibilities of official proponents, in addition to the many other responsibilities that they step forward and they assume in the initiative process, among those responsibilities and authorities is to defend that initiative if the public officials which the initiative process is designed to control have refused to do it. it might as well say it in those terms, your honor. >> counsel, if you want to proceed to the merits, you should feel free to do so. >> thank you very much, your

honor. excuse me. as i was saying, the accepted truth -- excuse me. the accepted truth that the new york high court observed is one that is changing and changing rapidly in this country as people throughout the country engage in an earnest debate over whether the age-old definition of marriage should be changed to include same-sex couples. the question before this court is whether the constitution puts a stop to that ongoing democratic debate and answers this question for all 50 states. and it does so only if the respondents are correct that no rational, thoughtful person of goodwill could possibly disagree with them in good faith on this agonizingly difficult issue. the issues, the constitutional issues that have been presented to the court, are not of first

impression here. in baker v. nelson, this court unanimously dismissed for want of a substantial federal question. >> mr. cooper, baker v. nelson was 1971. the supreme court hadn't even decided that gender-based classifications get any kind of heightened scrutiny. >> that is -- >> and the same-sex intimate conduct was considered criminal in many states in 1971, so i don't think we can extract much in baker v. nelson. >> well, your honor, certainly i acknowledge the precedential limitations of a summary dismissal. but baker v. nelson also came fairly fast on the heels of the loving decision. and, your honor, i simply make the observation that it seems implausible in the extreme, frankly, for nine justices to have -- to have seen no

substantial federal question if it is true, as the respondents maintain, that the traditional definition of marriage insofar as -- insofar as it does not include same-sex couples, insofar as it is a gender definition is irrational and can only be explained, can only be explained, as a result of anti- gay malice and a bare desire to harm. >> do you believe this can be treated as a gender-based classification? >> your honor, i -- >> it's a difficult question that i've been trying to wrestle with it. >> yes, your honor. and we do not. we do not think it is properly viewed as a gender-based classification. virtually every appellate court, state and federal, with one exception, hawaii, in a superseded opinion, has agreed that it is not a gender-based

classification, but i guess it is gender-based in the sense that marriage itself is a gendered institution, a gendered term, and so in the same way that fatherhood is gendered more motherhood is gendered, it's gendered in that sense. but we agree that to the extent that the classification impacts, as it clearly does, same-sex couples, that classification can be viewed as being one of sexual orientation rather than -- >> outside of the -- outside of the marriage context, can you think of any other rational basis, reason, for a state using sexual orientation as a factor in denying homosexuals benefits or imposing burdens on them? is there any other rational decision-making that the government could make? denying them a job, not granting them benefits of some sort, any other decision? >> your honor, i cannot. i do not have any -- anything to

offer you in that regard. i think marriage is -- >> all right. if that is true, then why aren't they a class? if they're a class that makes any other discrimination improper, irrational, then why aren't we treating them as a class for this one thing? are you saying that the interest of marriage is so much more compelling than any other interest as they could have? >> no, your honor, we certainly are not. we are saying the interest in marriage and the -- and the state 's interest and society's interest in what we have framed as responsible pro -- procreation is vital, but at bottom, with respect to those interests, our submission is that same-sex couples and opposite-sex couples are simply not similarly situated. but to come back to your precise question, i think, justice sotomayor, you're probing into whether or not sexual orientation ought to be viewed as a quasi-suspect or suspect class, and our position is that

it does not qualify under this court's standard and traditional tests for identifying suspectedness. but to come back to your precise question, i think, justice sotomayor, you're probing into whether or not sexual orientation ought to be viewed as a quasi-suspect or suspect class, and our position is that it does not qualify under this court's standard and traditional tests for identifying suspectedness. the class itself is quite amorphous. it defies consistent definition

as the plaintiffs' own experts were quite vivid on. it does not qualify as an accident of birth, immutability in that sense. again, the plaintiffs -- >> so you -- so what -- i don't quite understand it. if you're not dealing with this as a class question, then why would you say that the government is not free to discriminate against them? >> well, your honor, i would think that -- i think it's a -- it's a very different question whether or not the government can proceed arbitrarily and irrationally with respect to any group of people, regardless of whether or not they qualify

under this court's traditional test for suspectedness. and the hypothetical i understood you to be offering, i would submit would create -- it would -- unless there's something that is not occurring to me immediately, an arbitrary and capricious distinction among similarly situated individuals, that is not what we think is at the -- at the root of the traditional definition of marriage. >> mr. cooper, could i just understand your argument. in reading the briefs, it seems as though your principal argument is that same-sex and opposite -- opposite-sex couples are not similarly situated because opposite-sex couples can procreate, same-sex couples cannot, and the state's principal interest in marriage is in regulating procreation. is that basically correct? >> your honor, that's the essential thrust of our -- our position, yes. >> is there -- so you have sort of a reason for not including same-sex couples. is there any reason that you have for excluding them?

in other words, you're saying, well, if we allow same-sex couples to marry, it doesn't serve the state's interest. but do you go further and say that it harms any state interest? >> your honor, we go further in the sense that it is reasonable to be very concerned that redefining marriage to -- as a genderless institution could well lead over time to harms to that institution and to the interests that society has always used that institution to address. but, your honor, i -- >> well, could you explain that a little bit to me, just because i did not pick this up in your briefs. what harm you see happening and when and how and -- what harm to the institution of marriage or to opposite-sex couples, how

does this cause and effect work? >> once again, i would reiterate that we don't believe that's the correct legal question before the court, and that the correct question is whether or not redefining marriage to include same-sex couples would advance the interests of marriage as a >> well, then are you conceding the point that there is no harm or denigration to traditional opposite-sex marriage couples? so you're conceding that. >> no, your honor, no. i'm not conceding that. >> well, but, then it -- then it seems to me that you should have to address justice kagan's question. >> thank you, justice kennedy. have two points to make on them. the first one is this -- the plaintiffs' expert acknowledged that redefining marriage will have real-world consequences, and that it is impossible for anyone to foresee the future accurately enough to know

exactly what those real-world consequences would be. and among those real-world consequences, your honor, we would suggest are adverse consequences. but consider the california voter, in 2008, in the ballot booth, with the question before her whether or not this age-old bedrock social institution should be fundamentally redefined, and knowing that there's no way that she or anyone else could possibly know what the long-term implications of profound redefinition of a bedrock social institution would be. that is reason enough, your honor, that would hardly be irrational for that voter to say, i believe that this experiment, which is now only fairly four years old, even in massachusetts, the oldest state that is conducting it, to say, i think it better for california to hit the pause button and

await additional information from the jurisdictions where this experiment is still maturing. >> mr. cooper, let me give you one concrete thing. i don't know why you don't mention some concrete things. if you redefine marriage to include same-sex couples, you must -- you must permit adoption by same-sex couples, and there's considerable disagreement among among sociologists as to what the consequences of raising a child in a -- in a single-sex family, whether that is harmful to the child or not. some states do not permit adoption by same-sex couples for that reason. >> california -- no, california does. >> i don't think we know the answer to that. do you know the answer to that, whether it -- whether it harms or helps the child? >> no, your honor. and there's -- >> but that's a possible deleterious effect, isn't it? >> your honor, it is certainly among the -- >> it wouldn't be in california, mr. cooper, because that's not an issue, is it? in california, you can have

same-sex couples adopting a child. >> that's right, your honor. that is true. and -- but, your honor, here's the point -- >> it's true, but irrelevant. they're arguing for a nationwide rule which applies to states other than california, that every state must allow marriage by same-sex couples. and so even though states that believe it is harmful -- and i take no position on whether it's harmful or not, but it is certainly true that there's no scientific answer to that question at this point in time. >> and that, your honor, is the point i am trying to make, and it is the respondents' responsibility to prove, under rational basis review, not only that there clearly will be no harm, but that it's beyond debate that there will be no harm. >> mr. cooper, you are defending you are opposing a judgment that

applies to california only, not to all of the states. >> that's true, your honor. and if there were a way to cabin the arguments that are being presented to you to california, then the concerns about redefining marriage in california could be confined to california, but they cannot, your honor. >> i think there's substantial that there's substance to the point that sociological information is new. we have five years of information to weigh against 2,000 years of history or more. on the other hand, there is an immediate legal injury or legal what could be a legal injury, and that's the voice of these children. there are some 40,000 children in california, according to the red brief, that live with same- sex parents, and they want their parents to have full recognition and full status.

the voice of those children is important in this case, don't you think? >> your honor, i certainly would not dispute the importance of that consideration. that consideration especially in the political process, where this issue is being debated and will continue to be debated, certainly, in california. it's being debated elsewhere. but on that specific question, your honor, there simply is no data. in fact, their expert agreed there is no data, no study, even, that would examine whether

or not there is any incremental beneficial effect from marriage over and above the domestic partnership laws that were enacted by the state of california to recognize, support, and honor same-sex relationships and their families. there is simply no data at all that would permit one to draw that conclusion. i would recall, justice kennedy, the point made in romer, that under a rational basis of review, the provision will be sustained even if it operates to the disadvantage of a group, if it is -- if it otherwise advances rationally a legitimate state interest. >> mr. cooper, we will afford you more time. you shouldn't worry about losing your rebuttal time, but please continue on.

>> oh -- >> as long as you are on that, then i would like to ask you this -- assume you could distinguish california, suppose we accept your argument or accept justice scalia's version of your argument and that distinguishes california. now, let's look at california. what precisely is the way in which allowing gay couples to marry would interfere with the vision of marriage as procreation of children that allowing sterile couples of different sexes to marry would not? i mean, there are lots of people who get married who can't have children. to take a state that does allow adoption and say -- there, what is the justification for saying no gay marriage? look, you said that the problem is marriage, that it is an institution that furthers procreation. >> yes, your honor. >> and the reason there was adoption, but that doesn't apply to california. so imagine i wall off california and i'm looking just there, where you say that doesn't apply. now, what happens to your argument about the institution

of marriage as a tool towards procreation? given the fact that, in california, too, couples that aren't gay but can't have children get married all the time. >> yes, your honor. the concern is that redefining marriage as a genderless institution will sever its abiding connection to its historic traditional procreative purposes, and it will refocus, refocus the purpose of marriage and the definition of marriage away from the raising of children and to the emotional needs and desires of adults, of adult couples. suppose, in turn -- >> well, suppose a state said, mr. cooper, suppose a state said that, because we think that the focus of marriage really should be on procreation, we are not going to give marriage licenses anymore to any couple where both people are over the age of 55. would that be constitutional?

>> no, your honor, it would not be constitutional. >> because that's the same state interest, i would think, you know. if you are over the age of 55, you don't help us serve the government's interest in regulating procreation through marriage. so why is that different? >> your honor, even with respect to couples over the age of 55, it is very rare that both couples -- both parties to the couple are infertile, and the traditional -- [laughter] >> no, really, because if the couple -- i can just assure you, if both the woman and the man are over the age of 55, there are not a lot of children coming out of that marriage. [laughter] >> your honor, society's interest in responsible procreation isn't just with respect to the procreative capacities of the couple itself. the marital norm, which imposes

the obligations of fidelity and monogamy, your honor, advances the interests in responsible procreation by making it more likely that neither party, including the fertile party to that -- >> actually, i'm not even -- >> i suppose we could have a questionnaire at the marriage desk when people come in to get the marriage -- you know, are you fertile or are you not fertile? [laughter] >> i suspect this court would hold that to be an unconstitutional invasion of privacy, don't you think? >> well, i just asked about age. i didn't ask about anything else. that's not -- we ask about people's age all the time. >> your honor, and even asking about age, you would have to ask if both parties are infertile. again -- >> strom thurmond was -- was not the chairman of the senate committee when justice kagan was confirmed. [laughter] >> very few men -- very few men outlive their own fertility. so i just -- >> a couple where both people are over the age of 55 -- >> i -- >> a couple where both people

are over the age of 55. >> and your honor, again, the marital norm which imposes upon that couple the obligation of fidelity -- >> i'm sorry, where is this -- >> i'm sorry, maybe you can finish your answer to justice kagan. >> i'm sorry. >> it's designed, your honor, to make it less likely that either party to that -- to that marriage will engage in irresponsible procreative conduct outside of that marriage. outside of that marriage. that's the marital -- that's the marital norm. society has an interest in seeing a 55-year-old couple that is -- just as it has an interest of seeing any heterosexual couple that intends to engage in a prolonged period of cohabitation to reserve that until they have made a marital

commitment, a marital commitment. so that, should that union produce any offspring, it would be more likely that that child or children will be raised by the mother and father who brought them into the world. >> mr. cooper, we said that somebody who is locked up in prison and who is not going to get out has a right to marry, has a fundamental right to marry, no possibility of procreation. >> your honor is referring, i'm sure, to the turner case, and -- >> yes. >> i think that, with due respect, justice ginsburg, way over-reads -- way over-reads turner against safley. that was a case in which the prison at issue -- and it was decided in the specific context of a particular prison where there were both female and male inmates, many of them minimum security inmates. it was dealing with a regulation, your honor, that had previously permitted marriage in

the case of pregnancy and childbirth. the court -- the court here emphasized that, among the incidents of marriage that are not destroyed by that -- at least that prison context, was the expectation of eventual consummation of the marriage and legitimation of the children. so that -- >> thank you, mr. cooper. >> thank you. >> thank you. >> mr. olson. >> thank you, mr. chief justice and may it please the court. i note you will want me to spend a moment or two addressing the standing question but before i would be thought it important for this court to have opposition eight put in context. what it does. it walls off gay and lesbians from marriage. the most important relation in life according to this court. thus stigmatizing a class of

californians based upon their status and labeling their most cherished relationships as , unequal,e, different and not ok. >> i cut off your friend before he could get into the merits. >> i was trying to avoid that, your honor. [laughter] >> i think it is only fair to treat you the same. perhaps you could address your jurisdictional argument. >> it is as we set forth in the brief. createnia cannot article three standing by designating whoever he wants to defend the state of california. ofthese are five proponents the measure. if we were to accept your argument it would give the state a one-way ratchet. the state could go in and make a defense, maybe a halfhearted defense of the statute and when

the statute is held invalid, simply leave. if the state loses, the state can appeal. this is a one-way ratchet. it allows governors and other constitutional officers in different states to thwart the initiative process. it was is way -- the way seen in respect to california law. they are elected to act in the best interest of the state of california. they made a professional judgment given their obligations as officers of the state of california. the california supreme court said that proponents and only four of the five are here. >> is it your position that the aly people who could defend law that is adopting california

through the ballot initiative are the attorney general and the governor. if the attorney general and the governor do not like the ballot initiative it will go undefended. >> i do not think it is quite that limited. 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 create >> the same government that did not want to defend? >> you recall in the case -- let's not spend too much time on independent counsel provisions. the governor of the state of california frequently appoint an attorney whether it is a perceived conflict of interest. that person would have responsibility and might have responsibility for the attorney's freeze. >> there may be people out there with their

personal standing. someone who performs marriages and would like that to remain same-ut would not prefer sex marriages. i am not sure there are other people at out there with individual personalized injury. >> there might well be in a different case. i do not know about this case. if there was -- this was a measure that allocated certain resources of the state of california and maybe it was a binary system where people got resources and other people did not. there could be standing, someone would show injury. the point is this court decided that congress could not specify members of congress in that context even where the measure depleted or diminished. >> states are not owned by the

same separation of powers doctrine that underlies the federal constitution. you could not have a federal initiative. they are free of all that. start from the proposition that the state has standing to defend the constitutionality of a state law. beyond dispute. who represents the state? ,n a state that has initiative the process would be defeated if the only people who could defend the statute are the elected public officials. you know thist, better than i do. the point was to allow the publicto circumvent officials about whom they were suspicious. oppositionct that what is left is the proposition the state law can choose some other person. some other group to defend the constitutionality of state law.

the plaintiffs are precisely those people. how do you get around that? >> that is exactly what the california supreme court it could decide that the proponents, it could be one they have noents, fiduciary responsibility. they may be incurring attorneys fees on behalf of the state or themselves but they have not been appointed. they have no official responsibility. my only argument -- california supreme court thought this was a system that would be a default system. i am suggesting from your decisions with respect to article three that that takes more than that -- >> i think that you are not answering the fundamental here.

this testshat said the fiduciary duty, the assumption is that there are not executive officials who want to defend the law. they do not like it, no one is going to do that. how do you get the law defended in that situation? >> i do not have an answer to that question unless there is an appointment process either built into the system where it is an officer. why is this not viewed as an questionnt process mark the initiators have become that body. >> that is the argument our opponents make. thatppens all the time federal officials and state officials decide not to enforce the statute in certain ways. we do not then come in and decide that there is someone else who want to come in court.

>> it is not just the appointment. it is the state's interest when it defends a law is the interest in executing the law of the state. are you have to do is give a person and interest. one person has the interest of depend -- defending this law is opposed to defending the law of the state of california, there could be all kinds of conflicts and situations. that is what i got out of the brief. give the person that interest. that is what they say is missing here. missing. >> you are not an officer of the state of california. you do not have the fiduciary duty, you're not bound by the ethical standards of an officer of the state of california. you could have conflicts of

interest. >> you should feel free to move on to the merits. this is a measure that walls off the institution of marriage which is not society's right. it is an individual right that this court has said the right to get married, the right to have the relationship of marriage is a personal right. it is part of the right of privacy, liberty, and the pursuit of happiness. the right to get married, you describe it as marriage, procreation, family, other things like that. or procreation aspect ability or interest in procreation is not a part of the -- geto get married and

married. --eople do not get around the institution developed to serve purposes that by their nature did not include homosexual couples. you can say that it serves some of the other interest where it makes sense to include them but not all the interests. it seems your friend argues on the other side if you have an institution, you do not have to .nclude everybody >> there is a couple of answers to that. in this case that decision to exclude gays and lesbians was made by the state of california. >> that is because proposition eight came 140 days after. don't you think that it is more

reasonable to view it as a change by the california supreme court, an institution that has been around since time immemorial? >> the court decides what the law is. the equal reduction and due process clauses did not permit excluding gays and lesbians from the right to get married. >> that was a question i was going to ask. prescribe law for the future. we decide what the lies. when did it become unconstitutional to exclude homosexual couples from marriage? 1868 on when the 14th amendment was adopted? sometime after baker where we said it did not raise a substantial federal question?

when did the law become this? did it become unconstitutional to prohibit interracial marriages. when did it become unconstitutional to assign children -- that the equal protection clause was adopted. don't give me a question to my question. when do you think it became 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 context 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 that 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. if it prohibits gay and lesbian 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 so 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 8 denies gay and lesbian persons the equal protection of the laws >> you don't think you're going to get away with not starting with the jurisdictional question, do you? [laughter] >> as an amicus, i thought i might actually, your honor. and -- and, of course, we didn't take a position on standing. we didn't -- we didn't brief it, we don't have a formal position on standing. but i will offer this observation based on the discussion today and the briefing. we do think that while it's certainly not free of doubt, that the better argument is that there is not article iii

standing here because -- i don't want to go beyond just summarizing our position, but -- because we don't have a formal position. but we do think that with respect to standing, that at this point with the initiative process over, that petitioners really have what is more in the nature of a generalized grievance and because they're not an agent of the state of california or don't have any other official tie to the state that would -- would result in any official control of their litigation, that the better conclusion is that there's not article iii standing here. >> well, tomorrow you're going to be making a standing argument that some parties think is rather tenuous, but today, you're -- you're very strong for article iii standing? >> well, we said this was a -- we said this was a close question, and our interests are, justice alito, in tomorrow's issues where we have briefed the matter thoroughly and will be prepared to discuss it with 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 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 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. and i think -- i suppose the 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 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 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. so there isn't a lot of data 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 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? >> i have four points i would 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. and so -- so i do think that's 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? >> well, i think what 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. and at the moment, i'm thinking 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 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, is 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. >> it is hard to imagine a case 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 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 general's

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 recognizing 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. and remember loving against 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 or not 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. >> comingis submitted. up on "washington journal." discussing the defense of marriage act and immigration legislation in the senate. and more on the supreme court gay marriage decisions, voting rights, and immigration legislation with joseph crowley of new york. later, a look at diplomatic immunity and the role it plays in the case of edward snowden. live every morning at 7 a.m. eastern on c-span. there are 1400 monuments and

markers. arehe men who fought getting older, they want to make sure what they did here is being remembered and they will do that by building monuments. in modern times we have other ways of commemorating things like that but in those days that is how they commemorated the service here. this is the moment -- monument to the soldiers and their leaders. help us interpret the story. they are placed on the ground. most are union monuments. honestly, by the time the war ends, there is not enough money to build monuments in the south. >> live all-day coverage of the 150th anniversary of the battle

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harvey wilkinson. and a review of the supreme court challenge. that is live saturday at 9 a.m. eastern here on c-span. 5-4 thatme court ruled the defense of marriage act violates the fifth amendment's guarantee of equal rejection. this would give same-sex couples legally married in their states access to federal benefits like the marriage tax exemption and social security survivor benefits. here's a look at the oral arguments from march of this year. this is an hour. >> i meant that we would take a break. .e will continue the argument mr. clement. >> mr. chief justice and may please the the court.

the issue certainly implicates profound and deeply held views on both sides of the issue. the legal question on the merits for this court is quite narrow. on the assumption that states have the constitutional option either to define marriage in traditional terms or to recognize same-sex marriages or to adopt a compromise like civil unions. does the federal government have the same flexibility or must the government borrow the terms in state law. i would submit basic principles suggest that as long as the federal government defines those terms solely for purposes of federal law, that the federal government has the choice, to borrowhe definition or the terms of the statute. >> the problem is it was the state decision that there is a .arriage between two people

for the government to say no social security benefits. your spouse is very sick but you cannot get leave. what kind of marriage is this? >> i think the answer to that would be to say that that is a marriage under state law and this court case when it talks about the fundamental rights of marriage i take it to be talking about the state law status of marriage and the question of what does that mean for purposes of federal law and how is it understood to be a different matter and that has been true in a number of situations under a number of statutes. it is not the case that as long as you're married under state law you are going to be treated -- >> you could have a federal -- on of divorce and

>> we have never had that. there is a difference when it comes to divorce. you could have the possibility that someone married to different people for purposes of state and federal law. with the basic question of whether to recognize the marriage, the best way to put it is whether the federal lot tree there have been differences between the federal law treatment and the state law treatment. the treatment recognizes common- the federal law -- recognizes that. >> only at the state recognizes. >> i do not think that is true. >> is a federal common law definition. -- it is a federal common law definition.

>> in all events there are other for taxns, consequences, if you get a divorce every december for tax consequences, the state may recognize that. the federal government has said we're not going to allow you to get a divorce every december to get married in january so you have a filing filing status that works for you. the governor -- government has had its own efforts to make you think of the -- think of the federalism issue. term and defined in for purposes of federal law. it is a radically different case. stopngress decided to states from defining marriage in a particular way. 1100 federalver laws.

the tax deduction case which is has the, if congress power, it can't exercise it for the reason it once. when it has which in our society means that the federal government is intertwined with the citizens day-to-day life, you are at real risk of running in conflict with what has always of the to be the essence state which is to regulate marriage and divorce and custody. >> the fact that there are 1100 provisions and defined the terms, there is a long way to show that federal law is not staying out of these issues. it has gotten involved in a variety of contexts where there is an independent power that supported that.

the second thing is the fact that it allows -- affects 1100 antutes is not irrationality. like every other provision, what it does is it defines the term wherever it appears in federal law in a consistent way. that is part and parcel of what congress was trying to accomplish. >> it is not really uniformity because it relates one aspect of marriage. it does not regulate all of marriage. >> that is true. that is not a mark against it for federalism purposes. in 1996, congress is addressing this issue because they are thinking that the state is about to change the definition of marriage from the way it has been defining every jurisdiction. what that meant is when congress passed every one of the statutes, the congress had in

mind a traditional definition. congress at that point says the states are about to experiment with changing this. the one thing we know is these statutes had the traditional definition in mind. it has to be rational for congressmen to say we're going to reaffirm what -- how it is meant. >> suppose we look at the state tax provision. this provides favorable treatment to a married couple. as opposed to any other individual or economic unit. what was the purpose of that? was it to foster traditional marriage or was congress looking to a convenient category capture households of functions as a unified economic unit?

>> for these purposes, we can go back to the beginning of the estate tax deduction. congress was trying to provide uniform treatment of taxpayers. if you look at the brief that was filed they discussed its history. what was happening in 1948 issue had community property states and common-law states. there was much more favorable taxes than if you were in a common-law state. congress did not want to have an incentive. it wanted to treat citizens the same way no matter what state they were in. uniformgive you a federal detection based on marriage and what that shows is when the federal government gets involved in the issue of marriage it has an acute interest in in a form treatment of people across state lines. ms. wendy -- windsor wants to point to the unfairness of the differential treatment.

is exactly the right focus. for purposes of federal law it is much more rational for congress to say we want to treat the same-sex couple in new york the same way as the committed same-sex couple in oklahoma and treat them the same. >> your treating the married couples differently. you're saying that new york's married apples are different than nebraska's. >> there is a difference. just to be clear what this case and how anomalous the treatment is, this is not a case that is based on a marriage difference when new york

recognized same-sex marriage. this is -- the status of ms. windsor as married depends on new york's recognition of an ontario marriage certificate issued in 2007. >> you would say it would be the same thing if the state passed a law -- congress passes a law which says, well, e there's some states -they all used to require 18 as the age of consent. now, a lot of them have gone to 17. so if you're 17 when you get married, then no tax deduction, no medical, no nothing. or some states had a residence requirement of a year, some have six months, some have four months.

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[captions copyright national able satellite corp. 2013] [captioning performed by national captioning institute] is this not a time to restructure b.b.g.? streamline it? you all concur with mr. sherman's question that we are still broadcasting in greek. but we're not broadcasting in -- that seems to be a misplaced priority. >> yes, sir. i think that is true. i wouldn't get carried away the duplication issue. i think it is more of a strategy issue. someone needs to make a decision if you have $720 million to spend or whatever the number is, what are the important places where we should put our resources? >> let me interrupt you. the g.a.o. report says 2/3 of

the b.b.g.'s language service overlaps the other language service. that is a big overlap. it identifies 23 instances. involving 43 of b.b.g.'s 69 services. >> right. right, congressman. however, that doesn't mean they are all saying the same word at the same time. nbc has msnbc, cnbc, the golf channel. they are trying to achieve different things. i'm not saying that there is overlap. i'm saying there is a bigger problem here. a strategic problem. >> fair point. sometime an overlap may be a good thing. as somebody in the political profession, i have learned repeat, repeat and repeat again if you want to penetrate consciousness. especially in today's media market. >> i see nothing wrong -- if iran is an important target of american strategy, i see nothing wrong with having persian news

network, v.o.a. radio beamed into iran. i would not mind having several other stations beamed into iran, including entertainment stations. but not into greece and turkey and some other places. >> congressman, i agree entirely with jim glassman on getting strategic. we simply don't have the flexibility within the board structure to get the right program to the right audience on the right platform. we don't have it and i will back that up with the proof. all of the duplication, which you see today, virtually all of it, existed in 1998 when the board was created. 1994, 1998. not a single board has dealt with this in any systematic, any reformist fashion. i can't conclude anything but that the structure of the board

has to relate to that failure. >> i always found that in a time f declining resources, the biggest problem is there are too many language services chasing scarce dollars. so i'm for helping the board and helping the broadcast entities reprioritize some of this because you can't be all things to all people. and even when we tried over the course of time, by the way, to cut some services from our broadcast entities, including some that were overlapping, we had congress said no to us. and in another case that i can recall very well, when we didn't even ask for a service, congress mandated it. now that's your perfect right.

but i don't see that as necessarily a fault of b.b.g. management. >> yeah. and i want to repeat the i.g. report said that some of the fault lies here with the legislative structures we have created, which i think confirms the point that you're making. we have to take responsibility for our own action or lack thereof. let me add -- i don't want to abuse the unlimited time i have. my colleagues are waiting. could i just ask, your thoughts about, ok, let's take that legislative structure concept. if we were starting over again, if we were to look at legislative reform taking cognizance over the changed world and attracting resources, what would you recommend congress consider doing, mr. glassman? >> integrating the b.b.g. into the overall foreign policy structure.

10 years ago, i was on the group which looked at public diplomacy in the arab-muslim world. we concluded this. broadcasting represents nearly half of the spending on public diplomacy and must be part of the process. not marching to its own drummer with its own goals and strategies. sources of funding and board. that was true 10 years ago and it is true today. you can put it into the state department. you can resurrect usia. you can have it stand as a separate entity as mr. wimbush wants, as it is today. but directly reporting to somebody and responsible for someone who is in the foreign policy apparatus. >> i was struck by your testimony when you used the phrase strategic drift and you told that story about the strategy session with the secretary, deputy secretary. it is an amazing story actually when you think about. mr. wimbush?

>> mr. connolly, i don't want to leave the impression that i think that u.s. international broadcasting should report to no one. i just don't think it should report to the state department. the challenge for this committee is going to be how to create the logical foreign policy anchor for international broadcasting within the foreign policy security community. my own view is this should be the national security council, but you to figure out what that connective tissue looks ike. that's -- oh, your question, if you're going to start over, what would you do? it is a no-brainer. if you were going to start over, you would create one organization. and i urge you to start over. >> thank you. >> thank you very much. >> will you allow mr. hirschberg -- >> yes. when i'm done. >> sure. >> i don't share enders view of

having it go to the n.s.c. i do share -- i do believe that you should have an independent agency and entity no matter what you call it and if you have to rebrand something, which is clearly needed here, it ought to be rebranded. the b.b.g. really needs to be rebranded. but i think that there is enough connectivity to our strategic interests as a country now if you want to change that legislatively, you can always do it. but i don't share the view that this is broken. somehow it is not the foreign policy community. its goals are a little different. its objectives are a little different. they are complemently to everything else. why add v.o.a. to it? >> thank you. dr. yoho is recognized. thank you.

thank you. >> thank you guys for being here today. i would like to thank you all or being here today. i have a healthy respect for the voice of the history of americans in related programs from world war ii to the fall of communism. you can't help but feel nostalgic. i commend that whole service. however, in today's fiscal and tech logical climate, i want to make sure that we're maximizing the use of the hard-working americans' tax dollars and ensuring that we were not subsidizing the broadcasting of policies that are counter to our goals. we were talking about we lack funding. that would be one of the big things that would help you. in 2011 there was a study commissioned by b.b.g. for -- by deloitte and they recommended consolidation of the administrative elements of the surrogate broadcast services, r.f.e., r.l., anywhere

from $9 to $14 million a year, but yet it hasn't been done as i understand it. when you commission a study, obviously that costs money and then you get the recommendations and don't follow through and we want more money. it seems like we would follow through on that. so i would like to hear your thoughts on that and then what kind of assessments are made of listenerships? is there an audience for these programs? obviously we're broadcasting in greece, but not in the other areas where we need to be in the arab world. and i understand the communication tools like the internet etc., that we take for granted here may not be the most free and open in these other countries, hence the need for radio broadcast. has there been a recalibration of your distribution that takes into account newer, cheaper communication methods?

i would like to hear your thoughts on that. >> dr. yoho, a couple of thoughts. yes, on the board that i participated in, a study was done to look at consolidating the grantees, the radio-free so to speak. to me it was pretty conclusive. it makes not a whole lot of sense in my view of the radio-free europe, radio liberty, m.b.n., radio-free asia, all with their own h.r. departments, communications departments, their own newsrooms. this is just rampant duplication that should have been fixed a long time ago. >> why wasn't that followed up on? >> it was killed by the board itself within the board. >> ok. >> within the board, there was a majority in favor of it. it was killed and delayed by one or two of the members. >> congressman. can i comment on your question about research? the b.b.g. does an excellent job

of audience research in some really tough places. however, and this gets to the strategic question i've been emphasizing. the real question is what are you doing with these audiences? what is the point? is it just to gather a big group of people or is it to do something with them? it is my belief that it is to do something with them, which is to say to persuade them. and there is not a lot of research on that. it is not easy to do for one thing. but i also don't see it as the major mission of the b.b.g. i think the mission needs to change and the research should follow. >> you said that comes from the state department on policy. if we look in the arab world now with the arab spring, we have a whole different dynamic over there. in the old days when you had mubarak, you could predict how people were going to respond. but today, it is a whole different message. your research should be tailored to reaching that younger crowd.

getting that message out. i heard mr. hirschberg say money. i know that is one of the big problems here with money, money, money. one of the things that you guys touched about was why isn't there more cohesion between the mission and our policy to help stimulate what you are talking about, the target population? where is that being prevented? the management of the b.b.g. or the state department or us, the lack of that cohesion? >> it is -- in certain instance, i commend b.b.g. for that. they are cooperating very well with state and d.o.d., but overall, the b.b.g. does not see it as its mission. let me just use one example. seems to me that it is in the national interest to persuade iranians to oppose the deployment of -- the deployment and development of nuclear weapons.

we have a lot of lines into iran as a result of our b.b.g. broadcasting. yet no one is directing the b.b.g. i think the b.b.g. under the current system would be quite reticent to go along with a directive from the state department to try to persuade iranians but i think that is actually what should be done. >> thank you. ell, if you do that. can i -- >> yes. >> thank you, ma'am. >> if you do that, you better change the mission of the b.b.g. >> that's what i said. >> let me finish, gentlemen. you have to change the legislative intent and the scheme because right now the b.b.g. does not do messaging. it does not do advocacy. it is a pure journalistic mission. hard truth and information will show people what a democratic ociety is all about.

research s, the question at least for the years that i was on the board, every service, every language service, every change in language service, every change in programming was heavily research-driven. there is a first rate department within the b.b.g. >> thank you. >> go ahead. >> thank you, doctor. two points that you raised. the first is i think one should be very cautious about using numbers as an indication of the success of these services. you can get 200 million or 250 million but if it is the wrong 200 million or 250 million, you haven't really accomplished anything. one of the things that u.s. international broadcasting must do is to develop other measures of effectiveness as they would say in the military. we have to know how to measure impact much better. that gets back to jim's point about being more strategic in how we're getting there.

as to funding, jim is absolutely right. it is not in the culture of the b.b.g. to be strategic. to make these kinds of decisions. but there is a huge institutional impediment when you begin your budget process every year and you have all of these duplicate services and you know if you start putting them out of business all of these people are going to run to their congressman that armenian service number two has been put out of business or this is going to cause human resource problems of massive proportions, you fund them. you continue them. and that has got to stop. >> that is a strong, clear mission statement of what we're trying to accomplish. i appreciate your time. madam chair, thank you. >> thank you, dr. yoho. we will now turn to another doctor. dr. bera. doctor, doctor, doctor, doctor. >> thank you. >> it is a fascinating hearing here.

>> information absolutely is critical to getting our message out. i think the b.b.g.'s mission is pretty well said. it is to promote freedom and democracy. now the b.b.g. is not running a commercial enterprise. it is not about increasing your target audience. it is about getting a message out. and that is mission ritical. i've heard folks talk about effective boards, but i have not heard anyone say that the b.b.g. is functioning in an effective manner today. if we don't get that component together where we have a streamlined decision making process, where we're making strategic decisions ? conjunction with our diplomatic core, in conjunction with our

d.o.d., in conjunction with our security apparatus, i think we're missing a key element. let me cite a specific example. the congress, chairwoman and myself and a few others were in afghanistan recently. visiting with our troops. the primary mechanism of getting information to the public of afghanistan is radio. if we are not strategically communicating a message to these populations, we're going to be in a very difficult position to hold on to our gains. i would challenge that it is critical to our mission in a very strategic way, we're a state, d.o.d., a security apparatus are all working in conjunction to put a message out there to the public. it is a very effective way. we have seen how information has been used against us by jihadists. y al qaeda and others. my question is without, you know, we're all in agreement that it is not functioning in an

effective way today. we need to move forward in this because if we lose the information battle, it is going to be very difficult. concrete suggestions on what the makeup and mission of the board should be and should we keep the board structure and concrete recommendation to this body on what we should do to create a much more effective organization. mr. glassman? >> i think first of all, a board of part-time advisors is a good idea. with whatever structure you want to have. but there needs to be somebody who is a leader. who is a c.e.o. now the real question i think is where do you put this agency and we just -- we were just talking about that. i do -- you don't mind, i do want to comment on this. the strategic matter that you talked about. one of the first things that happened to me when i was at the b.b.g., the head of counterterrorism at the state department took me aside and said, you know, we would really like you to broadcast two hours

to somalia instead of one. i said well, it sounds like a good idea to me. i have to convince the board. do you have the money? they did have the money. the point is i could have said to him no, we're not going to do that. we're going to spend the money on greece or somewhere else. that was a voluntary participation in u.s. strategy. that is what needs to end. >> therein lies the challenge. >> mr. bera, a couple of hings. i agree with jeff. i'm not a than of messaging per se. i am a fan of strategic focus, which is where jim has put the emphasis. when you run one of these stations, as i have done, you learn very quickly that there are a lot of ways to get the right message or messages into a target area. during the cold war, the radio

liberty russian service, which was arguably one of the finest ervices ever created, had as one of its most potent programs, film reviews that made all the points that one wanted to get into, get into this udience. i think that where you are located is important and how you connect it to the foreign policy apparatus is important. there has to be congressional input, a lot of it. but i don't think it should go much beyond. i think it should be broad recommendations. our general foreign policy goals this year are to look at the following areas. please put special emphasis on those. and then you to do a lot of experimenting. there is no bureau. nyplace in the united states that can write you messages that will work. t just won't work. >> actually i share a lot of what both of these gentlemen have said.

after dave brubeck went there and had a jazz program, the most popular program in the soviet union at a time and russia afterwards. you can put the c.e.o. of broadcasting into this mix. that's what the board wants. that's what the administration has said that they support and i can support that as long as there is a b.b.g. still in place of private citizens, of diverse backgrounds that connect as a firewall and provide some strategic overall help to the board. and i think with those things, all the back office stuff, offer consolidation, but i don't think it makes a whole lot of difference in some ways what the structure is, whether or not it is an independent agency or whether or not it is something else as long as it retains its credibility.

>> would i be accurate if i said there is unanimous sentiment here that having a strong c.e.o. that is managing the organization makes sense. is that correct? >> it makes a great deal of sense. c.e.o. is one way to look at it. i would say professional management. over the entire corpus of international broadcasting. there is nothing wrong with a board of advisors of some kind. i have no problem with that, but there needs to be a berlin wall put between them and the management of these enterprises. >> having a manager that can interact with state, there is unanimous consent with that, with a board whose function is an oversight role. is that a reasonable structure? >> it is a reasonable structure. yes. >> right. you know what? i think this is an incredibly important topic for us to continue to discuss to make

the -- to win the information war. to win the -- we know based on our values as americans, our values of freedom and democracy, when we get those values out there, they win. but if we're not effectively getting that message out there hen we face severe risks and losing to messages that want to harm us. >> thank you dr. bera. mr. deutsch. my florida colleague is recognized. >> thank you, madam chair. ranking member. thank you for holding this hearing. i understand that you touched on this issue briefly, but i would like to pursue a little further the role that we play in iran and while i believe public broadcasting is vitally important around the world, it is especially true there. we have few opportunities to speak directly to the people to

present accurate information. .n.n. has long been considered an ineffective tool. poor programming, low quality production and mismanagement. it is tremendously unfortunate in a country where an estimate 90% of the population gets their news from tv. they are missing an opportunity to have an influential role in iran by presenting unprofessional low quality newscasts often with an incoherent message. less than two weeks ago, the iran people went to the polls in historic numbers. b.b.c. persian provided 24/7 coverage of the elections. unfortunately none of these criticisms are new. as iran remains a top foreign policy concern. i'm concerned that we're missing a vital opportunity to reach an estimated 25-30 million people in iran. so my question is this.

why is the production quality and editorial content of p.n.n. so lacking? what barriers are there that are preventing the hiring and training of top journalists and then i'll just also ask in a hearing before the middle east subcommittee, it was suggested that p.n.n. back public/private partnership. if you could elaborate about your thoughts on that and help us understand what can be done to make this a more effective diplomatic tool. >> thank you, mr. deutch. i agree with your assessment. i have not looked closely at p.n.n. for about six months or so. everything you just -- every characterization you just made, i would agree with. p.n.n. is a real tough nut to crack. it wasn't put together well in the beginning. it was rushed.

it from about an hour and a half to about six hours. i can't think of any commercial station that could do that. i did a very thorough study of p.n.n. when i joined the board in 2010 at the request of senator coburn. i would be happy to share that with you. it addresses all of the questions you just raised. let me address one of the ossible solutions for you. p.n.n. is unlikely to be fixed because the issues are largely connected to personnel. it is unlikely to be fixed as long as it remains within the voice of america. if you want a solution to p.m.n., take it out of the voice of america like you did the iraq broadcasting when you created the middle east broadcast network and attach it to radio-free liberty where it will be with its sister station. the entire legal regime that affects the management of personnel will change and you will see my guess is something

happen fairly quickly. >> well, we have -- i would be happy to look at the report, but what's -- if you could just give me the upshot of the conclusion, and i understand -- i understand the situation to deal with what you just described. what is it when you say it is mostly personnel? what does that mean? what needs to change for that to happen? who makes the decisions to put programming on about historic maps on a day, on an election day with very significant implications for the entire country and the world? >> that is -- those decisions are taken by the chief editor of the persian news network and i don't know who that is these days. but, i mean, the stories of this re, and the stories like that are just legendary. and p.n.n. doesn't seem to overcome them. i could tell you a bunch of them myself but i won't waste your time with them, but presumably a

chief editor, a head of service is making those decisions. >> do we have these problems with -- do we have these problems anywhere else in the world to this extent? >> i would say from my experience, look, these are media organizations so every now and then there is going to be a slip-up. and there is in almost every one of the services at one point or another, the big service is the most high profile services are the ones that get the attention. we all wring our hands and say why are we doing this so badly? the reality is in most cases we do it really well. we're really good at this. but there are going to be slip-ups. i canned think of in my experience that there has been braggs so consistently below the curb as p.n.n. think your h, i

question reflects something i've tried to say about mission and strategy. imagine if the mission were clarified for the b.b.g. there is an election coming up in iran and the national security advisor or the secretary of state or both of them bring the c.e.o. of the b.b.g. into the white house and they say hey, this is really important. we would like you to direct these resources at this issue. that doesn't happen now and in fact, it can't happen now. in any way where the b.b.g. actually has to take notice of that. >> if i can just -- if i can just ask, is the mission so unclear, is it so muddled that it would be impossible for the editors, for the people who run the station, to know that on an election day, when the entire world is focusing on your country, that the news network might actually cover the news

taking place in that country? and if so, how do we fix that? how do we clarify the mission? who needs to do it? who needs to be told? what has too happen so that they actually behave like a news network so that the iranian people can get clear, real news rom this outlet? >> i think the clarification of the mission has to be done by the u.s. congress. there is no doubt about that. you're -- there are personnel problems within p.n.n. i've been out of it now for four years. i can't really talk to it as well as my colleague here, but, you know, there is no doubt that that's part of the problem. i'm trying to say that there is a bigger problem here, which is that there would be a lack of responsiveness on the part of he b.b.g. and p.n.n.

that's not what they do. they don't want to be told by somebody this is your role. you're supposed to do this, guys. do it. that's not the way it works now. >> just the last question. what percentage of their funding comes from the united states' government? >> p.n.n.? >> yeah. >> all of it. >> ok. thanks. i yield back. >> thank you so much. we thank our witnesses for this timely hearing and i again remind our witnesses, our audience and members that the mission of the broadcasting board of governors is "to inform, engage and connect people around the world in support of freedom and democracy." this is broadcast for freedom and democracy. if you think that this is an -- isn't impartial broadcasting

then you're not full filling your mission, because you are supposed to stand for freedom and democracy. that is a direction. that is what the b.b.g. is supposed to do. we don't have to change the mission. we have to change the folks who are in charge of the programming, who don't have any idea what their mission is. this is an important mission. it's of great interest to this committee. support for freedom and democracy. amen. you have given us a lot of information for us to move forward and this hearing is nowa adjourned. >> coming up on the next "washington journal" will rahn

discusses the supreme court degrees and immigration legislation in the senate. then more on the supreme court gay marriage decisions, votings rights and immigration legislation with representative joseph crowellly of new york. later, a looked at diplomatic immunity and the role it plays in edward snowden. matthew lee of the associated press will be our guest. "washington journal" is live every morning at 7:00 a.m. eastern on crmp span. werfel testifies today on the hearing on i.r.s. target conservative groups. on c-span 3. >> there are about 1,400 monuments and markers on this battlefield. the 1880's and the 1890's. as the men who fought in this

battle are getting older, they want to make sure what they dead here is remembered. they are going to do that by building monoments. in modern times we have other ways of commemorating things like that but back in those days that's how they commemorated service here. monuments really help us interpret the story. the monuments are placed on the ground where the units fought. most of the monuments are union monuments. we're in a northern state. the war is going to be a union victory. there is not a lot of money in the south to build monuments by the time the war ends. >> live all day coverage of the battle of gettysburg sunday starting at 9:00:30 eastern with a story on scholars and authors.

followed at 5:30 with your calls nd tweets. at 8:00 the commemorative ceremony. dramatic readings from witness accounts of the battle followed by candlelight individualle. all day sunday on american istory tv on c-span 3. >> twitter c.e.o. dick costolo discuss prism. he said the company generally responds to specific requests by the government but pushes back when requests are too broad. ecilia kang interviewed him at

the american society of news editors conference. this is about an hour. >> in washington, twitter it is become the talk of the town for actually being omitted from very famous prism slides in the program that we're all reporting about on data collection and the federal government's intelligence gathering. and i will start with this. just simply how did twitter stay ut of prism? >> i think the way that i would answer that is we have taken what i think is a very specific principled approach to request for our users' information which can be summed up when we receive specific legal requests in the countries in which we operate, the u.s. first and foremost, where we started, we react to

those requests and do what we need to do and obey the rule of law. hen we receive broad requests, we push back to ensure that they are legally valid. we challenge requests that we have -- we have been very public about cases like wikileaks, for example, in challenging a request we have not deemed to be valid in defense of our users' rights to know when their information is being requested. we're not petulant about our responses in any of these things. we have a principled stance not to cross that line. if we receive a request that we feel is too broad, we push back on it. >> it is difficult. it seems like we're dancing around this thing that is all in

caps called prism. you can't talk too much about it. does it bother you that you can't talk more about these -- your relationship with the government and these sorts of requests? >> i think that the interesting thing for me is i have commented on this kind of thing publicly before in the context of requests in the u.k. or a kind of injunction in the u.k. that is referred to as a super injunction in which an injunction is issued that not only are you not allowed to say you know, this soccer player is having an affair with this person but you're not allowed to say there is an injunction preventing you -- saying that ou're not allowed to say that. those kind of things have always seen very kafkaesque to me. you know, those kinds of things and those kinds of situations

are different globally in different countries, but those kinds of things i just think are generally disturbing and you know, we have called for and would love to see more transparency around these types of requests. >> indeed. in fact, google has petitioned the government to be able to disclose the number of pfizer requests. break that apart in its transparency report so that there can be more clarity on those specific intelligent requests. is that something you support? is that something you would like to see? >> we haven't taken a formal position on that but generally speaking, our own counsel has tweeted on support for google's position on this. e generally believe and google issues their owniests about request that they can comment on and the way they have responded to those, we do the same thing. we have another transparency report coming out in about a

month on the requests we received at the beginning of the year. that report will be coming out in about a month. we would like to see more transparency from other companies in our field and -- and in reaction to the specific comments you're making about google, generally speaking, yes. we would call for more transparency on both sides. >> one thing your general counsel has said, amp lec mcgillivray. >> you got his name right. >> you start with the philosophy your users own their own data. is that right? can you talk a little bit about that? do you believe that there can be privacy in this age of social media? that your users can expect privacy? >> i think that the answer to your first question is yes. we absolutely believe that users, that there can be

privacy. that just because a technology is possible doesn't mean that you don't go down the path of having a reasonable discussion about what should and shouldn't be done with that. obviously we're going to start seeing this kind of discussion happen around things like geo location services and whether they should be all lopped in or not and is it ok to sense -- is it ok for applications to be using it and passing it around to third parties without any consent of the user? i think those are reasonable discussions and the kinds of discussions that users and consumers of these products should expect everyone here to be having. i absolutely believe that it is perfectly reasonable to have an expectation of privacy and it is incumbent upon policy makers to figure that out and set the right course in a way that obviously doesn't hamper the kinds of innovations that users want to be able to leverage. >> do you think that users should be able to opt in? that should be the starting point? it should be all opt in?

>> our services are opt in. we think that works. we think it makes it easy and obvious when you want to start tweeting your location, you're opting into using the location services. it starts off by default and i think those are the kinds of reasonable expectations and cases that people can -- people should have and as long as you're providing them with that, they can say this tweet is coming from this particular street corner in washington, d.c., then great, the user knows that and has answered that question in the affirmative. >> if you're trying to gather news as a reporter or follow news as an editor or just as a regular reader, it is hard not to be on twitter and get that news first. over the last two days, finding the missing red panda from the national sue was on twitter. last night following the filibuster.

that was amazing to see on twitter and the uprising and the role that twitter played on all of this. >> that wound up being the number one trending topic what was going on last night. i was just noticing last night during -- while that was happening that it had become the number one trend in the country. >> so a small -- not small, but a local event became an international event on this platform. so it sort of begs the question, what is twitter? are you a news organization? >> well, so it is two different questions. the answer to what is twitter, we think about twitter as this global town square where public realtime or live, public live conversational media is distributed. and we feel that we're the only company that really brings all

of those characteristics, public realtime conversational and widely distributed. we just heard in introduction the discussion about the embedded tweet. tweets go everywhere. not just to the 2013 application and -- twitter application but to web sides and print and everywhere else. we think we're the only service that provides that capability and those capabilities create the sort of global town square. via a vis your question about is it a news organization or not? we think of twitter as a technology company in the media business. we think of ourselves as technologists first. 50% of the employees are engineers. that a statistic we try stick to make sure we are focused on the technology. we don't do any -- we don't do ny analysis or sint thinks on the information as it pours in.

so in that regard, no, i don't think of ourselves a news organization. we don't do journalism. we don't report on the tweets that come in. in this global town square, people are saying what they are saying and we think that we're very complementary to news organizations because of course it is the responsibility of journalists to analyze and editorialize the information that is coming in, separate the signal from the noise and provide more depth to it. none of those things we do, all of those things we partner with news organizations, though. we would even go farther to say that one of the reasons that we push and invest so hard in embedded tweets and the notion of embedded tweets is the ability to use our a.p.i. for free. take the tweets out of the system and embed them in the "washington post" for example. one of the reasons we do that is because we think of our service as so complementary to news that it will be helpful for these

services to be able to take this information and plant them on their own pages and use them as they will. >> though, it feels like oftentimes the breaking news of live events particularly, natural disasters, newtown, boston, that reporters are breaking their news on twitter. they are not necessarily -- then they will do a first take, put out the link for to come back to the website. but how does this, how does this contribute back to news organization financially as well? >> well, i think that the participants in the news are putting -- are broadcasting what's happening to them and what they are observing and what they are seeing on twitter. new toup, especially during the -- well, you can think of any unplanned event. the one that i was paying attention to and sort of really dialed into personally recently was the boston marathon because a friend in the office, dennis crowley of four square was

running in it. he hooked the rfid chip that records your miles to a twitter account. we had seen that he had crossed mile 25. >> his feet were tweeting you? >> well, the rfid chip was hooked up to the america as. -- markers. in some sense his feet were tweeting. i guess that is true. we saw the news of the explosions and no tweets from ennis so we were sort of rivetted personally. he sort of said hey, we're all held up half a mile from the finish line. we don't know what's going on. in those cases the participants are telling you what's going on and happening and recording photos and videos of it. i think that is the world we live in now. there are hundreds of millions

of people on this platform. they are everywhere. they are in fukushima, japan and the earthquake and ensuing tsunami. that is what's happening now. that is where the first reports come from. and i think it's incumbent on news organizations and journalists to understand this is just a raw feed of stuff pouring in. 500 million tweets a day now. it took three years and two months for the first billion tweets to be sent. now there are a billion tweets send every two days. as this feed grows ever more, is ever more populated, there is going to be an even bigger role for journalists to synthesize it and help everyone understand what's happening. >> and how do you -- what are your observations on accuracy in those kinds of events, because

it seems like there is so much information. >> yeah, so i think that particularly in the aftermath of chaotic events, boston, the tragic boston marathon bombing, but also, you know, the oklahoma city bomb bombing. it has always been the case that there is rumor and innuendo in the aftermath. in the oklahoma city bombings, there was discussion in the aftermath that authorities were looking for this many men who appeared to be of this ethnicity and appeared to have gone off in this kind of car, all of which were completely wrong. that is just the nature of how information pours in in the aftermath of these chaotic events. the same is true on any platform including ours, when someone thinks they hear one thing on the police scanner and they write that and then actually that was never said. it was something else entirely.

i think the benefit of having, again, hundreds of millions of people on it is that those things can be -- are easier. they get cleared up more quickly. during the london riots people would be tweeting things like there is luth and someone would take pictures of it and it is totally fine. the more people that jump into the platform the better. it gets at dispelling its own rumors. >> ground those filters worked? >> again, it is a raw feed of what people are saying. in this public town square -- we are not playing the role of -- that's more credible than that and we look to -- and i want news organizations that partner with us to play that role. i don't think that is -- you know, you guys are great it a. and have been doing it for years

and years and years. we're just going to be the distribution mechanism. >> ok. one event that happened recently was a security-related issue that the news industry saw with a little bit of -- a lot of terror in that a.p.'s twitter handle was hacked. talk a little bit about the -- the consequences were pretty big. the market moved because of that. because of a false tweet. what is twitter doing and what is your role and your responsibility as this town square, this global platform to make sure that the right people -- that there is right identity. >> so we take our responsibilities in assisting these high authority accounts with securing their accounts seriously. so our security team and our trust and safety team and media team spend a great deal of time with services like yours and the

associated press and reuters and on and on and on. all of these high authorities, in helping them understand one, best practices for securing those accounts and two, the kind s of ways in which those accounts get phished. usually what we call spear phishing attacks. you send out an email and hope someone clicks on the link and gives you their password. a specific account where a specific account's credentials are asked for and you try convince people that they should go click on this link and enter some data that they should not. we have also recently spent a unch of time and energy adding two factor identification for the twitter accounts. it is really -- a factor is --

can be something you know, something you are, something you have. it is something you know, a password and something you have, a phone and will involve things like you have to enter your password and the code we just sent to that mobile phone that is tied to this account so you can't just -- if you know the password, you can't just get in. right? those kinds of additional security measures to lock down these things even further are places we're investing lots of time and personal resources, personnel resources rather and money. engineering dollars. we'll continue to do that because people will start to figure out how the right ways to hack to factor authenticated accounts. we'll spend more time there. >> a couple of very recent ubiquityich showed the of twitter.

turkey. the turkish prime minister called you, twitter, a menace to society because the -- so much of the protests there were driven from the ground and tweeting from there. at the same time he had something like 3 million followers and he tweets several times a day. turkey's app for data. they issued a statement saying they have not responded to that. that request. talk a little bit about your role as this global town square, you say often and what the challenges are. you know, we talked about data requests domesticically, but what is happening globally? >> i think one of the best, anything about this global town quare is it is increasingly --

there is increasingly less friction for people to see the other people who feel the same way they do about some issue. or to see and hear those who feel differently about them around some issue. and that has resulted in all of these fascinating consequences. i remember in the aftermath of he arab awakening we had a group of female egyptian scalors come to the twitter office talking about the fact that it was amazing to them that they could see on social services like twitter that there were these women in pakistan, these female scholars in pakistan who felt similarly about the issues they were concerned about in a way that they have never been able to see or hear before. so i think that is compelling. that is what makes it the global town square. that same thing is happening

right now by the way as you mentioned in turkey and brazil, even though they are very, very different circumstances. you now see these protesters in brazil converseing with these protesters in turkey and just sort of showing this solidarity in defense of things that they believe to be wrong, which is fascinating. you would have never, never seen them before. with regards to requests, i think that this is going to be a very fluid situation and i expect it to continue to evolve. we, again, we -- when we get broad requests for things that we don't feel are legally valid, legally appropriate requests, we push back on those. we push back on those aggressively, but we're also, you know, i think it is fair to

say that we're not petulant and understand that we have to obey the rule of law. if there are valid legal requests in countries in which we operate that we need to react to, we will do that. and i think again in this specific case, it is very fluid and will evolve fairly rapidly. >> is there movement to actually shut down twitter more countries that you have seen? >> i hope not. >> iran, chain, in china we have many users who use it as a platform. we are blocked in those countries. we would obviously love not to be blocked in those countries and have frictionless access to all of the people in those countries and right now, you know, it is the global town square minus a couple and we would like it to truly be the

global town square. i hope that in the future we will be able to operate in those countries, but we're not going to sacrifice principles of the platform in the way we think users should be able to communicate. in order to do so. >> is there a way to work with the twitter equivalent in china? to coordinate? > wavo is a service that was launched by chinese internet company and it is a twitter-like platform china that has -- it started off almost exactly like 140 characters etc. it is fairly different from twitter. i don't think that you will, you know, we would love to be able to just run twitter as twitter in china is the way that i would say that. >> ok. great. at this convention, i think

there has been quite a bit of talk about the future of news and pay walls. a lot of talk about financial models. do you have any thoughts on this -- there is a lot discussion, a lot of debate on what is the right way, the right course to go? what are your thoughts on subscriptions when it comes to online distribution of news? >> that is much more your guys' expertise than mine. it is a funny thing. i'll make a diversion here and come back to your question. when there is a conversation with another c.e.o. in the valley the other week and he said to me, you know, it is funny, the valley will get obsessed with, you know, various points like oh, you know, the founder c.e.o. you have to be the founder to be the c.e.o. of the company, and then it will be no, no, no. you need to bring in a professional c.e.o.. at at, look at jeff weiner

linkedin. on and on. i think the reality is that -- the reality is that, you know, each of these people in the valley and whether it is a founder or the professional c.e.o. or whatever, they kind of this have some super power and then some weakness and at various times people either forget one or the other and say the person is either a genius or the stupidest person who ever existed. i sort of feel that way about this model. people some other weeks some people say they are crazy. there'sity is that probably some correct balance there that works. impressedhave been with how well some of those subscription things have worked. i