with three total dissenting votes. both houses. 97-3 in the senate, unanimous in the house. sponsored by ted kennedy, signed by president clinton. this past week, every senate democrat voted to overturn the hobby lobby decision which was based on protections in that bill. we are not dealing with our democratic party any more. not even close. all this attention to how the republican party has gone to the right. they never talk about how radical the democratic party has become. [applause] so i wanted to make that point, which is not responsive to the question, but it is important to point out. >> we are on a hard break. i need any more to. >> i will now -- a name or two. >> i will answer that question. i have watched with scott walker has done in wisconsin with great admiration. they have thrown everything they have at the guy, and he has

d out theto them, lai facts, treated the people like ,dults, got his agenda through and he is in for a very tough fight again this year. the media is out to get him. the long knives are out. if you can win for the third time in wisconsin, he should at least get a look from our side heading into 2016. [applause] >> he looks great kicking off the summit a year ago. lots of us were here. as we wrap up the panel, we catherine hamm, james goldman and guy benson, and as the rookie,, katie, we want to initiate you. i hope we have the slide. -- thanks. back up

[applause] [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2014] houseing up next, white press secretary josh earnest briefing reporters on the situation in iraq. and then the court of appeals hears oral arguments on the same-sex average band -- marriage ban in michigan. after that, a debate in the virginia senate race. on the next "washington journal," the latest on u.s. military strike on isis forces in iraq. dave leventhal discusses his six-month-long investigation into the irs exempt organizations division, and a doctor from the association of american medical colleges talks about the doctor shortage in the u.s. and the impact it could have on patients. and we can take your calls and conversation on facebook and

twitter. live at 7:00 a.m. eastern on c-span. >> while congress is on break this month, c-span primetime features a wide range of political views and topics. this week, a debate on america's .reatness, veterans health care we visit the atlanta press club for the future of news, and we take a history tour looking at the civil war. c-span primetime, monday through friday at 8:00 p.m. eastern. let us know what you think about the programs you are watching. call us or e-mail us at -span.org. join the conversation. >> earlier today, white house spokesman josh earnest briefed reporters on air strikes and humanitarian in iraq, and countering the threat posed on

iraqis civilians and u.s. personnel. president obama told americans in a statement late thursday night that they will not be u.s. boots on the ground in iraq. after the briefing was held, the u.s. launched a second round of airstrikes. this is about 90 minutes. >> good afternoon. nice to hear you are all in a good mood on this friday afternoon. there is just a nice little buzz. maybe it's anticipation. either way, i like it. get a seat here. pretty close. thank you. set the record straight. there you go. i don't have any announcements so we will go straight to

questions. darlene? >> follow-up on iraq and the airstrike by the drones earlier today. do you anticipate additional strikes today and over the weekend? can you give a sense of how long these are expected? >> i'm glad he described it that way. the authorization the president has given for military action is very limited in scope and was clearly described in the remarks that he delivered last night. i do not have any operational at -- updates to share in terms of additional military action. as you pointed out the , department of defense did confirm this morning that a military strike was carried out in iraq. any additional updates will come directly from them. the department of defense does have significant capability and will be prepared to use it in pursuit of the goals the

president articulated last night. >> what is your best definition of "limited?" >> there are two ways the president described it. i will describe it in three different ways. first and foremost, the protection of american personnel. there are americans, military and diplomatic officials, there. the artillery position that was maintained by isil hit early this morning east coast time was focused on targets that were defending and that is why it occured. the protection of personnel in iraq is a top priority and one that merits the use of military force. the second is related to this urgent humanitarian situation

that exists. there is a religious and ethnic minority, a population of thousands who were stranded at the top of this mountain. at therces are marshaled base of the mountain vowing to kill those who defend and it is an urgent humanitarian situation. the united states military last night upon the authorization of the president successfully carried out an air drop of supplies, food and water, to those individuals stranded to try to provide some humanitarian relief. the president is authorized military strikes that could be used to address the situation at the mountain. there are kurdish forces seeking to dislodge the situation. if american military can be helpful in supporting kurdish

forces, airstrikes could be carried out in pursuit of that goal. the third is slightly broader but it is related to our belief and commitment in supporting integrated iraqi security forces and kurdish security forces as they unite the country to repel the threat that is posed by the isil advance. what will be required is an integrated, inclusive, political leadership in iraq. it is why this country stands ready to support the formation of an inclusive government in iraq. there have been significant progress on that front in the last few weeks. there has been the appointment of a president, a speaker, and two deputy speakers that reflect the diversity of their population. the head of the government is

the prime minister and he has not been appointed. -- selected. that will be the responsibility of the iraqi people. once that government has formed, we would anticipate and we would be continuing to urge the government to pursue an inclusive governing agenda to confront the threat posed by isil. the united states stands prepared to support that government formation. and the efforts to repel the events of isil, including where necessary the deployment of military force. it will not include, however, the additional american combat troops being deployed to iraq. >> on the humanitarian situation, is there a plan to get those people up in the mountains and is there a role for the u.s. in operations? >> what is, the strategy right the basictry to meet and immediate humanitarian needs of those who are trapped in

these pretty terrible conditions. that is what prompted the airdrop of supplies. the second prong as the president described it in his remarks last night is the possibility of targeted military strikes that could dislodge the isil forces. that would be in support of kurdish security forces. they're also trying to disrupt that siege. so we would be working in support of kurdish forces who are trying to free those who are trapped at the top of the mountain. but again, what is not contemplated here is the introduction of american troops in a combat role to alleviate the situation. >> can you comment on the president's involvement in this -- we know about the phone call with jordan's king abdullah.

-- our other leaders trying to get allies to join this campaign? >> i'm not in a time to read at phone calls. if the president places other phone calls that we can read out, we will mention that later today. the president got an overnight update on the situation. he was briefed on the military strike that was carried out this morning east coast time and the president will stay in close touch with the national security team today so that he can be updated as necessary. >> as we have seen isis making gains, the u.s. has sent military advisers. the president took the action he took last night. you and he had said that there is no military solution to this and that the united states should not get dragged into a war. what is to stop that from happening? and what is to stop the islamist forces from progressing further into iraq?

>> let me try to take that -- you asked a couple different questions, so let me take those individually. the first one, which in some ways is the most important for the american people to understand and the president said clearly in his remarks last night, if you will indulge me, i will repeat them. " as commander-in-chief, the president said, i will not allow the united states to be dragged into fighting another war in iraq. even as we support iraqis as they take the fight to these terrorists, american combat troops will not be returning to fight in iraq. so that is a very clear expression from the commander in chief about what the limit of any military action will be. that is a clear enunciation of the kind of principle that is at stake here, which is this belief that there are many challenges facing the people of iraq right now and it's the view of the

president that those challenges cannot be solved by the american military. they can only be solved by an inclusive government of the people of iraq. they have made progress in trying to form that government. and we are hopeful that, once that government is formed, they will pursue the kind of inclusive governing agenda that is required to unite that country in the face of the threat that exists in that country right now. if there is a role in the american military to play in supporting the iraqi people and that inclusive government and an integrated security force that is capable of secure in the -- defending the country we will , use that american military prowess in pursuit of that goal as well. it is the clear national security interest of the united states for there to be a stable iraqi government that can

preside over a stable iraq and a security force that has necessary capability to address the security situation in that country. these are all difficult challenges and i don't mean to minimize them. but we have a very clear point of view that is based on our recent experience about the limits of american involvement in that kind of endeavor. and what that means is this is the situation that is a very difficult challenge but it is not a challenge that can be solved by the american military. there is support that can be provided by the american military, but this is a situation that will only be solved by the iraqi people and a government that reflects the views of iraq's diverse population.

>> does the president believe or hope that the actions he authorized will by times of the iraqis can organize the government and their defense forces to repel isis? >> i would not describe it that way and i don't think the president did either. the primary goal of the mission the president authorized was the protection of american personnel. the president authorized military action to address an urgent, even dire humanitarian situation on the mountain and more generally a willingness on the part of the american people to continue to stand with the people of iraq as they pursue a future that is reflective of the population of iraq and that is under threat by isis extremists who are making advances across the country. our desire is in clear interest of national security for us to support the iraqi people as they confront that threat. but again this is a threat that

, we cannot confront for them. it is a threat that can only be met and defeated by a unified iraq in support of an integrated, capable iraq he -- iraqi security force. if that requires the support of the american military, that a support that we are ready to offer. but we will not offer it in the form of a prolonged military conflict that involves the united states of america. and it will not involve american troops returning in a combat role. >> let me ask about immigration. border patrol data show a decline in the number of children being apprehended at the border illegally and adults as well. how does that data factor into the president's thinking and acting unilaterally to address the situation? >> let me say a few things about the data. the first thing that is important to understand as we have seen a downward trend over the last four to six weeks.

of the rate at which unaccompanied children are apprehended at the border. however, it is important to understand that compared to a year ago or even two years ago, there are still apprehensions taking place at an elevated rate. so while they have come down from the peak we saw earlier this summer, the rate is still high when you compare it to broader historical trends. the second point i wanted to make on this committee -- on this historical trends , also indicate that, as the weather cools and we enter the following winter season, traditionally the rate of apprehension, the rate of those who try to enter the country go back up. the volatility in these numbers is something that the administration remains concerned about and it is why we have taken some steps within the executive branch to reprogram some funds and to devote some resources to the border.

even though we have seen a decline in the rate, we want to make sure that resources are necessary if and when volatility is reintroduced and number start to go back up, we want to make sure we are ahead of the curve on that. we continue to urge congress to take action to provide additional resources to ensure the federal government has necessary resources to deal with the problem. congress left town for the august recess without acting on specific requests ordered for additional resources, but we are hopeful that when they return they will take steps to provide those resources. as it relates to the president's commitment to act unilaterally, to address the problems are broken -- of our broken immigration system, i say two things about that. the first is congress's failure and house republicans' failure to address a problem that we all

know exists as evidence of how poorly congress has performed in trying to address this problem. and because congress has failed to act, the president is going to use the power that is nested -- invested within the executive branch to try to take some stance that will address this problem. again, those steps will not be as robust or impactful or as long-lasting as an enactment of legislation. but there may be some things that the resident can do within the confines of the law to address the problem. and if there are, the president will not hesitate to act on them. the final thing i will say about this, immigration, in the course of the last couple of years in debate, our political with something talked about quite a bit. the need to reform the system was a view that was held pretty intensely by certain segments of the population.

but i think many americans consider this to be something less than top priority. the president considers it to be a high priority because of the economic benefits that exist and the potential for addressing some of these problems in a common sense way were great. there is an important piece of bipartisan legislation that passed the senate to address these problems. as a result of the media attention around the border, i think we have seen in some of the public polling that your news organizations have done on this issue, there is a broader awareness among the american electorate and that this is a significant problem. there's also awareness that congress has done nothing to solve this problem. in fact, there is broader awareness in the american electorate that republicans have been actively blocking efforts to solve this problem. that only strengthens the hand of the president to make the kinds of decisions necessary, within the confines of the law

, to try to solve some of these problems. >> president obama is the fourth u.s. president in a row to engage in military action in iraq. he ran for president on a platform of ending the war in iraq. was he reluctant to make this decision? >> i think the president was determined to use military action to protect american personnel in harm's way in iraq. he was determined to use american military assets to address a urgent humanitarian situation, and the president is just as determined to make sure the united states is not right back into prolonged military conflict in iraq. >> given the fact that he ended the war in iraq, maybe this might not be a good idea. >> i think the president on numerous occasions has amply demonstrated his commitment to using american military might to protect american people all around the world. that was evident last night. that has been evident in other situations as well. that hasn't changed.

what is also evident is the president's determination to ensure the united states is not dragged back into a military conflict in iraq. >> in january, he told the new yorker when addressing the isis threat, the analogy we use sometimes is if the jv team puts on lakers uniforms, that does not make them kobe bryant. is it safe to say that isis is no longer the jv's? >> what is appropriate to say is that there is no question that the laker uniforms that were , to, to use that analogy draw out that analogy a little bit, that were worn by the al qaeda leadership in afghanistan has been decimated and defeated in afghanistan. there is a question about that. that is the result of the many decisions made by the president and the courageous service of

our men and women in uniform and our men and women in the intelligence agencies. what is also true is that there are other organizations that subscribe to the violent extremist ideology that is espoused and promulgated by al qaeda. many of those groups and nations across the globe are not particularly sophisticated, are focused on local sectarian conflicts that don't pose a significant or immediate threat to u.s. interests or the u.s. homeland. let me finish. there are a couple of other organizations that do pose a more substantial threat to the united states and our interests. al qaeda in the arabian peninsula. you have seen the united states in concert with our allies and partners take significant steps, important steps to mitigate the threat that is those by those organizations that do have the

designs and some capability to try to strike the united states and, in some case, even try to strike the homeland. we do remain concerned about the military proficiency demonstrated by isil, and that is why you have seen the president take steps, including the operation of military force, that would protect american citizens who might be harmed by isil. >> ultimately, is it up to the iraqis to eliminate the isis threat? >> it is up to the iraqi people and the iraqi government to address the security situation in their country. we talked about what will be required. they will be american support provided, but there will not be american troops returning to iraq in a combat role. the president is determined to make sure that the united states is not drawn back into a military conflict there. ultimately the challenges that face iraq now are the challenges

that can only be addressed by the iraqi people. let's move a little bit. jessica. >> the first, the rationale between military strikes here and no military strikes in syria. for humanitarian purposes. >> there are more than a couple of differences between the situation in syria and the situation in iraq. let me highlight a couple of the more important ones that would illustrate the things that are driving the president's decision-making. first and importantly, the united states's involvement in iraq is by invitation by the iraqi government. that is important distinction between the relationship, if there is one, between the united states and the assad regime./ second thing, the united states has in iraq significant

intelligence, surveillance, and reconnaissance resources in iraq that ensures that american decision-makers, the american military, and the american intelligence officers have a pretty good visibility of the situation on the ground in iraq. those kinds of assets and that kind of intelligence to that extent does not exist as it relates to the situation in syria. a consequence of those intelligence efforts that have been underway in iraq sometime is that we have enhanced military capability in iraq. using intelligence and using the partnership that exists between the united states, kurdish security forces and iraqi scary -- security forces, there is more capability to take beneficial steps for the security in a country. this highlights the need for people trying to make decisions about confronting the

situations, to consider them on a case-by-case basis. there are lessons that can be drawn to our involvement in other places, but there is no direct correlation between action in one place and action in another in terms of guiding the decisions that are made solely >> the white house continues do et criticism over not having assi assigned. if there was a remnant of icy would not have got then big and we would point. e come to this >> i have heard of that argument made by some. the argument that those individuals are making is that the situation might be different tens of were still thousands of troops in the role in iraq. he consequence of that posture american men and woman

iraq.ng all across the president does not believe hat that would be in the national security interest in the united states of america and the military. nd there is a fund mental disagreement about that. however, i would submit that i vast phopblg of the american public would be on the side of the president in reaching the conclusion that the in iraq is the best resolved is people and force that has the ability to represent and protect the interests of every citizen in iraq. the united states can be in a position to offer support to the and otherwise

raqi security forces but the president does not believe that it would be in the interest for tens of thousands to be on the in iraq fighting them right now and that is just an onest disagreement that exists between the president and of his capital hill. you add ou add -- say thousands of american troops on the ground in iraq they would be would sition where they be on the front lines fighting iraqi towns tect and cities. not believe does that that would be in the interests of american national security. mark. h it was conveyed by iraq's political leadership in terms of what that conversation was like

either end of that conversation i'd refer to the ante department, but that is invitation that they -- the that the iraqi people have talked publicly. >> do you know when it was conveyed? >> i do not. if iraq is ell us the subject of the weekly address tomorrow? i don't believe the president has taped the weekly address but i wouldn't be surprise fire the topic. hat was state department said there was a meeting at the white house to ordinary nate allies. partners and i'm wondering if part of the conversations with allies bringing them in for iraq. ry operations in >> i would actually refer to the department defense on that matter. let me say a come of other things about that that might be

instructive for you. is that there are these joint operation centers iraq.exist in these are operation centers that military e american personnel, officials from personnel rces and from iraq security forces. those jocks as the military call are up and running and they are important to coordinating efforts of all those involved right now on the ground. operation se joint centers, for example, the iraqi able ty forces have been to deploy assets in support of kurdish security forces ground. that'se been a pretty effective tactic to something we'll continue consult with them about. there are other partners in the that the united states has worked with to try to onfront this and other challenges and the broader

region.lity in the those are like jordan. the president spoke to the king just this morning and we will be in touch with them as we confront the on going situation iraq. and that's also true with turkey uae and there are also other nato allies of the concernedtes that are and have made public their concerns both about the in iraq ian situation and the tpwroder security in iraq and we'll consult with them in the days ahead. to continue to consult and cooperate with them asksf we have any specific to make this have 'em we'll make directly. was boehner said he dismayed and accused the president for political reasons .efusing to reengage that?u have reaction to

>> well, the speaker might be ne of those individuals who they should might fighting. frontlines i'll allow him to state his own position. that there hasut been extensive consultation with the president and leaders in this ent in confronting issue, if you'll indulge me i'll review the highlights. he president con sraoefd a meeting with the congressional leadership. it also included members of committees on this topic. hat was a follow-up to a meeting that the president met n mid june with the four

leaders of the senate and house. in advance of the president's and his official authorizationf an to use military force in iraq phone ere a number of calls that were made from senior members of the national security to members of congress. this included the bipartisan and senate he house the chair and ed ouse and senate foreign relations committee and some embers of the appropriations committee in both the house and senate. there has been a genuine and sincere effort to closely members of congress. we welcome the partnership and support those members of confront these very difficult challenges. i would point out there were

issued by democrats and republicans that were come men tetry. >> it indicates a sincere commitment to coordinate closely. good r was talk about the things that happened that triggered that intervention. as it a particular movement of them in a particular place. up on the llowing last question, a lot of the

the hill while there have been statements from yes, we think this is a good idea, most of the it's too have said late. it should have been sooner and encourage it to be more and the a more comprehensive plan. are there efforts of the longer this point?y at >> i think mr. mc carthy may be n the category of individuals whose view was raised by jessica earlier. >> he may, but he's not saying wanted tens of thousands of boots on the ground but there lots of people the very limited targets that you are talking about should be and is there some reaction to that?

i only raise that to note that it seems likely even that mr. mc carthy may have a with the of opinion president about what our core ational security interests are and how they're best served. hat difference of agreement inhibit us as we move forward in iraq. but this -- make no mistake that that are made in iraq in consultation with ongress will be decided or guided by the president's views bout the equities relating to national security. it's our view that the personnel of american is a paramount concern and a stated willingness on the part act militaryent to in support of a unified iraqi more capable a security ated iraq force. >> as it relates to the president's briefings it's

to talk in a lot of detail about those. numbersident did receive of updates over the course of the day yesterday. of included department defense personnel many of you put up photo that was that was shown by the president. >> i'm talking about what was it that ledst week or two the president to decide after holding backths of on air strikes, what was it pecifically that sort of triggered in him the decision that, okay, we're going to have direction? his or did it happen all yesterday? >> well, i think there are three can i site for you, robably not in the detail you like, but there are three things that come to mind here. first is urgent reports that were seeing about the dire

deteriorating ing /* /- state of the country there is no doubt about that. >> over the course of this week. e saw those reports ort course of this week. the second thing i would note is hat this were reports and many f these were public reports of were staging they in the directi that direction ae safety and about the security of american personnel who are there. and that also led to the president's conclusion that a robust military action could be required to ensure the afety and security of those american officials. the third thing i would note and

part s also an important this have and this relates it a principal that the president mid junecussed back in when there were reports of the firstes that was made the time around here. that relates to the progress have made in s forming their government. few s only within the last weeks that we have seen the takes political leadership the necessary steps it appoint a a aker who was sunni to one who deputy speaker, was a shia. one who so the success that they had or i shea the progress they have forming that government procedures laid out in the constitution was a

encouragement iraq was willing to do. of work that needs to be made and we encourage to kind of progress. the vice president has been on president phone over the last touch with the olitical leadership on this issue. he was in touch to discuss some of the issues. has played a very important ole in both urging iraq's political leadership but also coordinating with them assessment. >> josh, in terms of the for air strikes, it is open ended in terms of time or is there an end date? has not laid nt out a specific end date.

this approachtake in which those kinds of evaluated re regularly and are driven by the ity situations on ground both as it relates to the safety and security of american and supporting the on going efforts of both kurdish forces and iraqi securities for. >> when the president come back those meteings going to be related to this? >> i don't have an update when return. i wouldn't be surprised if he has a conversation on this topic he's back in the white house not next week but the week after. planned to resident return to the white house before recent announcement fpl

>> the president has called "the" top priority. that's the case then why not simply evacuate like you did in libya. way to make sure. option.certainly is an however there is very important and at t's being done the joint operations center that i mentioned earlier. a higher priority? >> right. position where we can conduct the kind of military action that will protect them to do t allow the very important work that's what we then that's would like to do. again, that is what we're now.uing right >> is there any discussion -- not that i'm aware of but you can check with the department of tate about our posture when it comes to our personnel in the

conflict. of the humanitarian effort, given 200,000 or so have been in syria and more than 2 million forced from their homes, how did that not rise to the level of a humanitarian but this with a significantly smaller number of people involved did? a significant en intervention in syria. >> military. military t a intervention. the united states remains the of est bilateral donor atense to syria and syrian violence in scape that country. there have been significant resources dedicated to try to the modern opposition o try to counter the threat both posed by some extremists in withstand the assault from the regime. it's important to understand are he oh the

situation on the ground in both is different. and that has consequences for military of capabilities and risks. he president is constantly evaluating both of these situations to determine what is in the best interest of the that what curity and is is driving the decisions he's both countries. >> there is no specific end date our ou mentioned earlier military will not be prolonged. the white e us what house definition of prolonged is? >> i'm not in a position to from here.cific date but the president is determined -- the president ran office determined to try to wind down the conflict in raq responsibly and to bring service men and woman home. so the -- there is no end date but it's not going to be prolonged? the american what people should expect?

is not a time frame now.t the is a determination on part of the president to use american military force to personnel in an iraq and address the on going humanitarian situation and a goal that is in the clear interest of the national security which is a stable iraqi government that is able to exercise some control over the security situation in that country. because we're y talking about a volatile region world and trying to restore some stability to that is an in that region important goal of the national security. the president e is determined to ensure that the united states is not dragged into a military conflict in

iraq. that is not event return combat troops to or american troops in a combat role iraq. and that will also apply in the situation. military onged conflict that includes u.s. the table is not on here. >> my follow-up question, i wanted to get your reaction to side of the criticism. what are your thoughts on that? >> well, i read he willier a president's m the remarks last night, and there's that i truncated

that i should not have cut off it's important. the president said american combat troops will not be iraq.ing to fight in that's where i ended. he continued to say, because no solution to the larger crisis in iraq. that is an indication that the believes in a principal that i spent some time yesterday.ng there is no military solution to problems in iraq. our efforts including our are in support governmentsive iraqi that can bring backstab it back to iraq. the confidence of all the diverse population looking government is out for the security. bombings has the potential to be counter productive. this t shared in

administration? >> well, of course that is considered.at is but there are these other in terms of stake protection of american personnel the humanitarian service. tpwut president i think has been pretty clear about what he thes the best way to balance those equities in a way that maximum izes it.m my what are you saying happens if their government forms in the to the is satisfactory

u.s.. >> these are the kinds of decisions made by the president the on conditions on grouped if based on the capability of the american military and the decisions that by iraq's political leadership. we'll also be evaluating the and integration of iraq security forces and testing to which they're able o coordinate with kurdish security forces. ofll be monitoring what sort condition they're in and whether or not they continue to have capability to destabilize the security situation in iraq. lot of factors at play here. factors there se is one under principal. this is a situation we cannot iraqi people. they must solve for themselves. stands ed states prepared as they confront this difficult challenge. ultimately it will be the

esponsibility of the security forces to confront the threat. if military assistance from the necessary, the resident will evaluate that request to determine what's in the best interest of the security. what will not occur is the nited states will not be dragged back into a prolonged military conflict and the president will not send american combat role back to iraq. >> you're not exposing the door somewhat of a broader tkefp , broader than defending the mountains or personnel.u.s. sounds like it's broader epending on the political situation. >> the president indicated in his remarks last night and or 8 weeks ago a willingness to use military in support of an

government that is successfully inspiring the iraqi public the and representing the interests population.verse there is a long standing military o relationship that exists between united states and iraq and olitical ties between the american government and the iraqi government and the united states is committed to with our partners as they confront these threats. they're limits and rooted in the fact that these are only challenges that can be iraqi people. >> the president said iraq's not we're ct place but leaving by a sovereign stable self-reliant iraq. why is that so wrong? sued an agenda

that was not inclusive. not succeed in unifying the security forces. that meant that iraq was not withstand the pressure and eventually an assault. that is why the president for a number of months now has been urging. is he's been urging if months, han a number of even years encouraging to pursue agenda that would country.

the president has also said if iraq's political leaders are willing to take the necessary to unify the country to face the threat that the american military can come in and offer support to confront. been to defeat

and decimate al-qaida. to defeat and decimate isis? the goal to this specific situation is the lead nor iraq o confront the threat that is imposed. the difference is -- let's walk hrough this because this is important. al-qaida was operating with in the area of pakistan and d they were able to set up a around the globe al-qaida ed the core leadership in afghanistan to and carry outnize catastrophic attacks against the homeland. the situation with isis is it's why it's so important for iraq with the support of the united states to threat that they

currently pose to the stability populations o including some minority now are ns that might being persecuted and that is what accounts for the different in dealing with these two different situations. threat that's posed -- the threat that is one that the president takes very seriously. hey have demonstrated a pretty sophisticated military capability in the last few weeks in the terms of the success they advancing in iraq even in the case of some opposition forces and kurdish security forces. >> i understand that isis can't attacks against the united states but secretary f state john kerry had a news conference where he with a you saying that the president believes isis is a threat in the term and could be a long threat to u.s. security. so, there's a fear at least that hey could be a long term

threat. why is the goal not to defeat and decimate them? offer support to to the iraqi government which is shambles? >> i think i noted the progress have made in terms. i think they made progress in utting together a governmentment that can be country lly unify the to confront them. that is the key to defeating threat and reducing the attack l that isis can the united states or our interest in allies both in that around theeventually globe. >> last one is, i don't know if ou saw this documentary where officials were quoted as saying, and raise iate them fall a h in the white house. the president spoke

pretty forcefully about the united states resolve and to use nt and lgtness military force to support the fforts of iraq's security forces to defeat them and using iraq as om base of operations and strengthen the security iraq and prevent terrorists from terror populations in iraq. we are deeply disturbs by that are christian villages that are being violently by them. here are a wide range of

actions that of been perpetrated are of deep concern to the united states and it's why you are seeing the kind of you've seen from the president and the military. tes >> some military analysts have initial air strike. what i can speak to is the stated goal of that that's by the military of defense. t was to take a military asset that was threatening a city where american personnel were located. and that is why that strike was authorized by the commander in chief.

>> do you have any indication if it slowed their advance? not in position to offer n updated on the ground assessment of the security situation in iraq. next the question of what that the president might be onsidering, would he consider arming the forces? military to strong military relationship with the iraqi security forces and they shared assets with kurdish security forces. e have also demonstrated a out.ngness in our caring these septemberers have been helpful in coordinating the activities of the militaries are acting there. as i mentioned earlier we have pleased and continue to

ncourage efforts to integrate iraqi air assets with the ground offensives of the kurdish forces and that kind of ntegration and cooperation is critical. but to the extent they needed a ugs natural resources we're looking to increase the flow of those resources including arms united states. >> the president last night in there was a aying mandate from iraq, is

satisfied he's done enough to prevent that massacre? >> well, i think you're things.ing two e was talking about the urgent crisis.arian you have seen the united states government closely coordinate international aid organizations including the u.n. nd the governments that are ousing those refugees right now. provided states has

simply how tically plan to at is the u.s. do that? because there is worth 90ness to feed them and give them a little water. they'll be slaughtered in four days as opposed to two. how will they get off the mountain? well, there are -- there's a strategy that's in place that is first meeting their immediate basic humanitarian the air that's what

was. >> we would assume there would coming of those in the days. >> as needed the military stands conduct additional perations to additional life saving supplies. separate from that the president military rdered that action could be used to try to end that siege. this are kurdish security forces that are countering at are other forces and if there is could be ight that deployed that could tip the balance in support of kurdish we'll look fortunety to do that. the opportunity to drive orces away in the air and then operate and evacuate. >> well, the kurdish security have been operating for

some time and there is an military y to use force in support of those on operations then the president's authorized the military to take that kind of the n in the hope that siege of the mountain would end. it seems in both places the united states is offering air in the opens of what place in rejuvenated both plays. strategy? overall rely on ground forces to retake and retake places, retake damns, electrical plants with the added benefit of support which is what would them and get them

back in the field. speaking i with say yes, but let me take a shot describe.hat i can first thing that's important it's important to understand we kurdish idence in the fighting forces. that we do assess the fighting orces are demonstrating a willingness to fight as evidenced by several counter launchedthat have been over the last several days n kurdish forces withdrawn. while the kurdish withdrawals to be orderly they continue to face challenges so positioned to offenses. forces are security and they ghting force

continue to fight forces in iraq. what may be necessary in some support from the american military to enhance fighting position or to take out keytar gets that would them to have greater discuss. of factors couple here. the first is that the notident's determination to send american troops back in a ensure this is done in way that it's broader ed with the iraqi security forces and an iraq government. >> the iraqi army is not in this relevant fight. the kurdish army is and the ones from the air. all that is relevant right now and that seems to be a urning point not only with dealing with isis but the future in iraq. the fighters right now to rid northern part of iraq

kurdish army. about is if the united states say, no new york on't do that and we won't help with you that. the overall reaction going to be if they get involved fight and start rolling them back >> we have seen that they are into the o get back fight. i first want to dispute the your question. we believe there's an important role to play in this broader fight. that's why they are included in the joint operation sent skprt united states the close o maintain military to military coordination that exists. he reason according to the assessment of our analysts, the we saw a -- a

capability of iraq's security forces is that it was not integrated in way reflects iraq's diverse is a tion and that consequence of failed political leadership. when you have a political eadership that is not demonstrating a commitment to an inclusive governoring agenda have to an impact on their ability to control an force.ted security that is why this all starts as difficult and challenging and as it is, this starts with the political leadership making the kind of are cult decisions that necessary to form an inclusive government and pursue an agenda will inspire the diverse iraq.ation of if the people of iraq are invested in the success of the will make it easier for the security forces and better nto

the advance we've seen. >> if they accomplish military bjectives that are relevant to pushing him back will they get air assistance from the united states? made on a l be case-by-case basis. we are closely coordinating in a variety of settings and ncreasing the flow of arms and assistance and we're closely coordinating our efforts in the of the joint operation centers. but in terms -- it's difficult generalize in that situation. these are made on a case-by-case that knowse military this area very well and by the assessment teams that are currently on the team that the a few weeks ago nd by american officials are evaluating this -- these kinds f objectives through the lens

of america's national security priorities. will this change the president's vacation plans at all? >> i don't have any changes to announce. is he still going to do that fund-raiser? >> the president's schedule for changed either. the president will be traveling array achusetts with an of communications equipment and national security advisors and to ensure that he has the capacity to make the kinds of are required for the commander in chief. if there's a need for the return to the white hois house it's not a long flight rom martha's vineyard to washington, d.c. he wanted to return to day or two and meet in person for meetings. position to read

those meetings out because they're still more than a week away. >> thank you so much. how do you change the attitudes? >> the united states stands as a freedom and respect for basic human rights. that is what distinguishes the it is so tes and critical to the founding values of this country. have condemned in clear terms efforts of extremist groups o target and in some cases massacre minority populations because of their religious or ethnic identity. you saw a willingness last night from this president to authorize military force to try to humanitarian gent situation that was predicated on of this intentions

extremist group. he president's commitment to those kinds of values and the bravery of our service men and to take the kinds of actions that are necessary to try to prevent the situations occurring, again, is that ing and is something speaks to the core american dear. that we hold so i think way we deal with them is evident based on the resident's strong words and military action. you've been asked about the situation between the in iraq. is it -- just wondering is it an -- this where iraq country has a certain iraq and s to circumstances on the ground? you can just expand a little bit to why the situation

necessitating a response versus any sort of similar situations, beyond just anywhere in the ountry getting a humanitarian response? >> well, i think in terms of the ore objectives and the core priorities, the president laid out those pretty clearly last night. true and i think this is what you're alluding to, me, is the top significant investment and sacrifice that has already been but hundreds and service of american men a and woman who served that country. they served in very difficult conditions. many of them were injured and died.of them and that is evident -- that is of the ation united states's commitment to iraq's success. have -- that service was in

upport of the iraqi people having access to the opportunity of theirine the future country. disappointed that iraq's political leaders has not seized that opportunity in the we believe is necessary for iraq to remain the kind of secure, stable country that i think the vast majority of iraq's diverse population would to see. and that is why the united states dustin to urge political leaders to pursue a more governing agenda speak to the commitment of the american people to stand iraq, de the people of even in very difficult times as they pursue and make the kinds that are required to ultimately achieve the future likeeir country they would to see. >> that is that history that role here and makes that

ituation than any number of others. >> i think the thing that is harder harder -- there is no doubt that the history is obvious. hat is harder what consequence that has for our on going ational security and how decisions are made about our on going national security. i readily acknowledge the that it you're highlighting, but in terms of what is driving the decision the president has made to authorize military reaction in raq, i would refer to his emarks in terms of those priorities are. do they have a role in any sort of way ? >> i'm not in a position to speak to the report, i haven't seen it. establishment of that is

a testament to some of the were discussed last night which is the united states does remain a and protectionom of basic human rights and pplies in this country but applies that principal to populations including minority populations all around the globe. that means that the united states stands squarely ith those minority populations that are target because of their identity. or ethnic the american people stand with hem and the christians who are being persecuted. the president's commitment to kinds of issues and strong statements that indicate our being for populations persecuted is clear and goes to toore value of what it means be an american. > aware of any specific

actions that are taken but we can look into that for you. i would say that the creation of is evidence of how deeply held the president's area. are in this alexis. >> i want to follow up on what was asked earlier. that between june and now the formation of a more in iraq wasvernment the source of encouragement. june to clarify between and now, was the president's greement to respond to the request conditional it was it ever communicated as conditional to the iraqi government on that progress? >> i think the president was pretty clear. remarks with his me. i regret not doing. that when the president spoke on june 13th he delivered a short statement on the south line prior to boarding in the contexthe of those comments, i think it might have been in response it a question, the president indicated that the key to underlying 's

problems and to stabilizing ther security situation was formation of a government that diverse iraq's population and the president was resolute about his commitment military nited states ould not be used to prop up an iraqi government that didn't reflect the diverse iraqi opulation and diversity of views of the iraqi people. evident to think anybody who was trying to design president's priorities that military nt to use force could not be separated of iraq's mmitment political leaders to form the government andve pursue the kind of government agenda that ning would be required to unite that of this n the face

threat. >> just to follow up. sayinge and apart you're that the president was responding in large measures to humanitarian situation. that he would ng not have done that if the that ss had not been seen he made clear he needed to see before the united states -- i'm not in a position to valuate that hypothetical situation. fortunately we have seen a lightly more optimistic scenario. we have seen the political take at least some steps. there's still really an remaining which is the appointment of head a ernment and that is not mine yor nor step /* /- -- minor step. he now out of the picture in terms approving the actual of this?on

>> the president has authorized military to use force in the on the limited scope that he has articulated. will not be in a situation where he's signing off in an strike but there will be regular consultation to the ommander in chief about the situation on the ground and the strategy they're pursuing. again, he's not going to be position to authorize individual strikes but he'll be by his y consulted military commanders about their trategy and about the assessment that they've reached. i'll do three more and then we'll go. so, bob. what about air strikes on the

and the surroundings there, would the president have to sign off ton that? the president has already authorized military action in upport of the humanitarian efforts that are underway on the mountain. >> been very clear about forming a nce about government. e >> ultimately it will be the esponsibility of iraq's political leadership to should lead their government. it's a not a decision that dictated by any outside person. this should be made by their people and political leaders. what we're focused on is not is but what person is the governing agenda that they pursue. governing sue a

agenda that has the support of population and makes clear to every citizen in iraq that they have a government is representing their interests that is fighting for future, that that's the kind of government that will the country ifying and having unified country is facing a when you're extremist group. we obviously are going to ontinue to stay in regular touch with the political leaders to encourage them to continue to ursue the kind of inclusive government that they have started to form. we have been encouraging them step of the way and there continues to be regular consultation with them as they move down this path. obviously would like to sew them move quickly. if you could look at the history,it would indicate that there is not a history of iraq oving quickly to make these

kinds of decisions, but we have seen significant progress in just the last few weeks. hope that that momentum will be sustained and that there be an announcement about a prime minister soon. this will be the last one. couple of have a requests. does the president plan to abide y the work powers that calls for him to submit an authorization request within 60 days? well, there are some administration has been consulting closely with congress, as i said earlier. we have consulted with the relevant members of congress issues.se

the president will comply with work ourcable resolutions. sometimes they are classified and sometimes they are not. it isd anticipate that something we would likely be able to release publicly. up to request for congressional action, right? this 60 day time where the president supposed to go back and that? complying with the notification requirements of the war powers act. can they live with isis holding any type of territory whether it is carved out of iraq or syria? >> that the hypothetical difficult to deal with.

>> that goes back to the longer-term treaded you regarding i sold -- isil. and say this.shot it's difficult to imagine a scenario where you would have a stable iraq under control where freely operating in the countryside. worked soy we have closely with the security government in kurdish security forces to counter this threat. it is the belief of the united states that it is only the iraqis that can confront this problem. they have already shown a willingness to do so but this is a problem for iraq to solve. typically on a friday i would do a week ahead. you know the president is

planning to depart the white inse to begin his vacation martha's vineyard and looking forward to spending the next week or so with his family up there. there is one item on the president schedule, a fundraiser monday afternoon on martha's vineyard. i believe there will be some press access to the president's remarks. the president is currently returning to washington next sunday to return to martha's vineyard to spend a few days thenhis family and returning the next sunday back at the white house to get back to business, ok? not anticipate there will be briefings at the white house during this two days not the wax -- next week but the week after. the president is traveling with members of the national security staff in his a bold deputy press secretary will be on the trip so

you will be informed from highly qualified in the know sources about what the president is doing while spending time up there. i'm sorry? in terms of the family travel schedule, we will have to get you some additional details when the travel begins. i do not have a schedule in terms of what that looks like and we will keep you well informed. we will do a briefing in here and a couple of weeks, ok? tanks, everybody. thank you. [captions copyright national cable satellite corp. 2014] [captioning performed by national captioning institute]

>> next the sixth circuit court of appeals hears debates on same-sex marriage ban. then the virginia senate race. to midwestern conservative conference. tim phillips, presidents for americans for prosperity, talking about the issues they are focusing on. at 10:00rs" sunday a.m. and 6:00 p.m. eastern here on c-span. watch the tv in prime time. , a widet 8:30 p.m. range of topics including legal of booknd coverage fairs and festivals from across the country. know what you think about the girlfriends are watching. call us -- comments@c-spt

an.org. like us on facebook and follow us on twitter. >> the sixth circuit court of appeals heard the prostitution now that he and michigan's same-sex marriage ban, one of four the court heard. the others were from kentucky, ohio, tennessee. a lower court struck down the ban as a violation of the equal protection clause. is one hour. >> good afternoon, i'm here on behalf of the people of the state of michigan. may it please the court, justice kennedy explained just a few months ago, it is a fundamental

premise of our democratic system that the people can be trusted to decide even divisive issues on decent and rational grounds. that's what this case is about. it's about to who gets to decide what the definition of marriage is and what that definition must be and it's about who gets to decide on two different levels, the judicial hierarchy has felt whether a district court can disregard a directly on point holding by the united states supreme court, namely baker versus nelson and the bigger picture, it's whether federal rights, if there is a creation of a new federal constitutional right if that should be done under the amendment process or by the courts under a doctrine. there is common ground in this state that the u.s. constitution does not directly address same-sex marriage which means to turn to the question substantive due process. the right being asserted is objectively deeply rooted in this nation's history and tradition and puts it in the

concept of the words liberty, such that you can conceive of liberty and justice about it. same-sex marriage doesn't have the deep root. >> what do you do about the fact that one could have said the same thing about lawrence? >> well, with respect to lawrence, the lawrence court didn't directly address that analysis. this court has repeatedly applied the analysis and recognizes the continuing way that you're supposed to analyze due process both in the u.s. citizen association case and lawrence, this court has continued to apply glovesburg has recognized as that as the relevant standard. lawrence doesn't override or reverse all of the cases before it simply by not mentioning it. >> so this court is still bound about it and by this court's precedence applying glovesburg

post-lawrence? >> what about baker, you mentioned that early on. not a very long opinion, i think you would acknowledge, a lot has happened since then, i think you also knowledge that, so how do we deal with it? >> well, this court is bound by the length of it doesn't matter because the question is a question of hierarchy, and i would say that the supreme court has repeatedly said that summary decisions that it makes are binding on the lower courts. it merits determinations and this court has reiterated that. a case specifically said that summary dispositions are still binding unless reversed by the united states supreme court. so i think that -- >> it's a little more give and

take in it than that. the doctrinal developments, doctrine that has grown out of other supreme court cases, we're clearly dealing with doctrinal developments in this area of the law, are we not? >> well, there are two answers to that. first of all, the doctrinal developments language in hicks is that hicks also said that courts are supposed to follow the supreme court's decisions until it overrules that and subsequent to that, in rodriguez and the cases this court has also made this point, it's a decision that the supreme court wrestles on cases and overruled. so if the supreme courts override it, but i disagree on the doctrinal development point two. roemer doesn't do anything to undermine the fundamental rights aspect of baker versus nelson. both questions were presented in

baker versus nelson whether there was a due process right and also -- >> you don't think lawrence overruling a case that came out just a few years before that indicates a doctrinal development? >> i think that shows a doctrinal development in the area of right to privacy. but i don't know that that necessarily shows doctrinal development in the fundamental right to marry which is public recognition to something, not a right to privacy. lawrence has decided on a different substantive due process crown and doesn't have anything to say about the fundamental right to marry. >> what about the case that just, that the policy and the laws against ma psychological

nation were not deeply rooted in our american society and yet that went by the by? >> the case is primarily about the fact that there was racial discrimination, violation of the protection clause which the supreme court recognized that the primary court component of the 14th amendment is to end racial discrimination. the fact is that racial discrimination -- >> was it not the law across huge swaths of southern states at the time, i mean that was a vote by the people of many states against the pocket of interracial marriage and the language says the right to choose whom to marry is a fundamental right. >> to the extent that there is an attempt to analogize the question of same-sex marriage, the supreme court rejected that express analogy in the baker case. >> what -- but with respect to the loving analogy, the supreme court, if the supreme court wanted to say that the freedom to choose who to marry wasn't

limited to someone of the opposite sex and they didn't do that, that question was directly presented to that. .

there is manner and wife in the in 1978, theh tennessee electorate was asked to repeal the provision provision in the constitution that they did so by a margin of only 8000 votes out of only half a million. >> i think the points show that the people did choose to try to end racial discrimination with the 14th amendment and did also later choose to end racial discrimination. that just showed that the people can make decent and rational decisions. it doesn't mean that history and tradition of this court with respect to an issue here which is same-sex marriage, having to look at windsor, it's very instructive, the historical analysis. section 3 of windsor talks about the history and tradition of

marriage and certainly talks about the history and tradition of same-sex marriage and with respect to same-sex marriage, it recognizes that it was only until recent years when that was even possible. >> that's true, that's true. if we take this case to be about the right to marry and not the right to marry a person of the same-sex, isn't what is going to happen around the country pretty clear and what is happening pretty clear? >> if what you're saying is people are passing laws to change the law? >> that's not what i'm saying. what is the issue, the issue to right to marry, dealing with the right to marry or dealing with something like, oh, what were those cases, the right of inmates to marry, the right of deadbeat dads to marry? i think it was judas kay that said fundamental rights are fundamental rights, simple as that. >> for example, if you're

looking at whether there is deep historical roots within the definition of marriage that only people not behind on their child support payments can marry is different than only people from the opposite sex can marry. those due process, they had limitations that were not deeply rooted throughout the sthurs. the supreme court is talking about history and tradition of the windsor opinion. the marriage between a man and a woman is centuries and recognized as fundamental. the supreme court was talking about the fact that the marriage is defined as being between a man and a woman is fundamental to the very definition of the term. that was true to the definition of the term and function throughout the history of civilization. >> what do we do about the reality that the marriage is always about, it changes with social morets and maybe originally marriage was

encouraging procreation, channeling procreative possibilities. modern morets are love and commitment. it seems harder to justify on basis grounds. everything you're talking about is not being a fundamental right, that doesn't answer the question that really was the holding in all four of these cases, that it doesn't even survive rational basis for view. what do you do about the difficulty of if you think about marriage just through that lens, love, affection, commitment, it does start to get a little difficult to see the difference between the one group eligible and the other group not. >> i agree, when you focus on fundamental rights, history is the focus. the protection, a rational basis and so the question is, i guess,

the preliminary starting question for the rational basis inquiry, why is the state interested in marriage in the first place? why is the state interested in emotional connections between people? we discussed this in our brief. it doesn't have interest in regulating friendships, it doesn't regulate how many people can be in a friendship or how long a friendship has to exist. the reason it changes and why the state has interest in marriage, marriage leads to children and in society and how is society going to make sure that they're cared for. so it's rational, so the states have an interest in promoting interest so it will be more likely that a child will have both a mother and a father and have the benefits of having both

a mother and father. remember, in the trial below, the experts on the plaintiff's side conceded there are differences between mothering and fathering, there are different benefits for each one. >> what is the rational basis for excluding everybody else? i mean, it doesn't cut down on the procreation of children, interfere with the procreation of children just because you got two people of the same-sex marrying and in some of those marriages, one of them, one of the partners is able to procreate. >> first i have to point out that the rational basis with a different view, that is flipping the question. the robison case lays this out very clearly by the united states supreme court where it points out that the question for rational basis for view is whether the state interest that is being put forward, if it's being vabsed by including a

first group and by including a second group that does not advance that interest is not irrational, it does not extend benefits. that case again was about veterans benefits. the question the state interest asserted was having people fight in the armed services and the benefits were extended to them, the benefits encouraged people to join the military. the question was do conscientious objectivors are they entitled to these benefits, they would not advance the state's interest in making it more like being able to fight in the nation's services. >> you would say that what we're trying to do in the confining marriage to opposite sex partners is to encourage procreation? >> i think that is one of the state's interests is making sure that procreation for one occurs in long-term committed relationships with opposite sex couples where procreations. >> isn't that a little hypocritical then to have, allow people to marry who can't procreate but prevent same-sex partners from marrying? >> not at all, your honor, state for a same-sex couple applying their marriage license, are they going to procreate, the definition of marriage is always going to recognize that opposite

sex couples have the right to marry. that would be a limitation on the right to marry. you wouldn't get to that question. >> you would acknowledge that there are benefits, important benefits to the state beyond procreation, the benefits and responsibilities attendant to marriage seem to bear on the question we're suggesting here is whether or not those matter to a state that says as virginia did, we have no interest in rights in seeing adult love. there are these benefits and responsibilities that would be important to the state, taxes, somewhat consistency among the members of the -- married members, marriages throughout the state all would have the same responsibilities, those sort of things? >> i think there would be other

benefits from people -- >> procreation. >> staying together. there may be multiple state interests, but the question here is whether it's a rational state interest to make it more likely that every child have both a mother and a father or whether it's at least a rational state interest to try to recognize that as a biological reality opposite sex couples can have unplanned pregnancies where as same-sex couples can't. so extending marriage to opposite sex couples addresses that concern, to same-sex couples doesn't. it's a rational basis which is all that is necessary. there are other benefits for marriage, but the fact that that doesn't undermine its rational for the state to be promoting these marriages? >> are there benefits? >> acknowledging recent cases have not applied pure rational basis review?

we know that windsor, for example, placed the focus on difference in rational basis with you? >> well, windsor, roemer and then windsor. roemer talks about conventional inquiry and talked about whether there is a desire to harm so windsor does the same thing, roemer requiring a desire to harm in order to set aside the rational basis. if there were a desire to harm, you may not be able to tell that if there was no rational basis. there is a rational basis. there is no reason to fall back on the desire to harm. the presumption is what i started out with. the voters are decent and rational. if there is a plausible -- i mean that's what the rational basis test is. there is a conceivable basis, then that's reason to uphold the law and this is a democracy promoting rule. it allows the people to make these decisions. remember, this is something that the people can decide to change tomorrow by amending the federal constitution. it's not that the court is the

only recourse for creating a new right. in fact, the court shouldn't be creating new rights. the third rational basis i haven't brought up yet is the fact that there is uncertainty in this area. it's simply such a new thing, it's hard to tell. police officers experts conceded that trying to study children raised in a same-sex household is a needle in a haystack population. they can say there hasn't -- an expert says there hasn't been a single comprehensive study of children that were actually raised in same-sex marriage. so a rational person might think even somebody who would vote in the future for same-sex markings a rational person might think it's too early to tell. it's rational to wait and see. so there is a number of different rational bases. >> you were starting with fundamental rights and talking about rational basis review. the if you get to intermediate scrutiny through one path or the other, would you concede the state has a problem? >> no, your honor, it would depend on which framework it would be scrutiny. intermediate scrutiny setting

aside the fact that the court has three precedents, sexual orientation, even if those weren't there, under immediate scrutiny, biological differences between men and women can make a difference. in a case which is about the difference between mothers and fathers who had children who were born outside the united states, the united states supreme court upheld they treat men and women difficulty and required men to prove to a higher degree they were the father than a woman when they brought the child back in the u.s. it's possible to survive under intermediate scrutiny. under the equal protection

clause, the law stayed neutral and the law has no intent to harm. the district court in michigan's case will be recognized it wasn't possible to say that there was an intent or an an mouse on the part of michigan voters. so that means the only thing that is left is the impact and under washington versus davis -- >> how did they stay neutral? >> neutral -- >> marriage is including one group but not another? >> by defining marriage to be between a man and a woman -- >> basically neutral as genderwise, i understand that. i agree with that. but i understand why it's neutral as between people of one sexual orientation and another. >> i think the answer would be that it doesn't prohibit them from marrying either. so neutral, there was no evidence that this was done to exclude them. the evidence that it was simply continuing the definition throughout michigan's history. >> so the only reason, that's

the answer. >> can i ask you, you mentioned the sixth circuit. i assume you're talking about davis? >> as a friend of davis, yes, your honor. >> you know the problem with the quality foundation as i read it, it depended on, it relied upon the supreme court's decision which was reversed in lawrence. so i wonder -- >> your honor, the equality foundation opinion mentions bowers only when talking about prior history and it's based on roemer. it was remanded in light of roemer and now it's under roemer. so it doesn't rely on bours. it doesn't talk about bours and again, this court, even after lawrence has continued to apply the same -- >> i have to tell you, we are sometimes perfectly capable of blindly applying cases. i'm not sure i would be willing to say that we did in davis, but that has happened. >> if you were to lose under either one possibility, a possibility of same-sex marriage and the other possibility is the review which makes life

difficult for justifying the law, would a practical implementation problems, you know, with brown, you could say the only implementation problem was resistance, but it's a pretty easy rule to implement, right? i guess what i'm interested in from the state's perspective is this already controversy, there may be resistance, but why is it difficult as a matter of implementation to implement this new rule? >> so, in other words the outcome were that same-sex marriage is constitutionally protected, would it be harder for the states? >> yeah, what problems result? >> i guess i think if you're talking about what possible harms might come from changing -- >> limitation problems, is it difficult to adjust state laws on marriage, divorce, anything

else, or is it really pretty simple, you just now include this new group within -- >> it would have widespread impacts, i'm not quite sure how exactly all those would play out. >> what would they be? that's the question. what would they be? >> as far as changing how michigan's laws about marriage? and the big picture, one of the things that could happen if it were changed, this is something that there would be no institution in michigan would stay, it's important to have both a mother and father. in terms of societal impact there might be harms which is to say there would be say there is nothing important for mothers to

be there and fathers to be there. >> do you honestly think that's what happened in the states where same-sex marriage is now valid? >> i think it's too early to tell, your honor. it's only been 10 years since the first state passed it. >> we're beyond 25% of the jurisdictions in the country and probably more than that in terms of, maybe more than that in terms of population as a whole. and it doesn't look like the sky has fallen in. >> i think the point is that it's too early to tell when you're changing such a fundamental bedrock of society in just 10 years. that's not even a single generation of children. so i don't know how it could be possible to assess the outcome of children. >> i thought there was a lot of evidence offered in the second trial in michigan that indicated, in fact, that the outcome on children was reasonably benign given what they know at this point. and i know you're going to say, it's too early to tell. >> i think that's a valid point, your honor. >> but then the people who tried to come in on your side of this trial and present all these terrible impacts that they said this would have, i mean there was even the texas professor where he had a disclaimer on the

university of texas website saying don't believe anything this man says. >> your honor, the fact that one particular social scientist, i think the picture, the big picture is this is something rational people could agree. it's a point that justice alito made in his assent in windsor that rational people could recognize that it's too early for social scientists or fill loss fers or historians to be able to tell. >> to your point, mr. lindstrom, that the votes of citizens of michigan is that, i should think? >> i definitely think that weighs in consideration very heavily to say that, for example, this is under rational basis review to say that michigan voters didn't have among them, 2.7 million of them,

a single rational basis and it's not possible to have a person of good will to disagree. >> the panel are people from ohio. we might be able to accept that argument. >> well, fair enough. so i think the numbers in ohio are also quite, maybe more sensitive. >> my red light is on? >> the dates of the lifetime the people in michigan voted was something like 10 years ago. >> it was 2004, that's correct, your honor, people can change their mind in the future. >> your full rebuttal time, thank you. ms. stanyar.

>> may it please the court, carol stanyar. for 50 years the supreme court has recognized that the freedom of personal choice in matters of marriage and family life are liberties protected by due process. april deboer and jane rouse have a constitutional right to share a life, to marry, to form a family, to raise their children. we show in this case that no matter what standard of scrutiny the court uses, no matter what doctrine the court applies, the state can't prevail here. the michigan marriage amendment is unconstitutional. a startling disagreement between the parties as the court has already observed is the articulation of the right itself. is it the right to marry or is the right to what the state is calling same-sex marriage? >> what about -- i mean, i realize before windsor, the first and second circuits said

baker is binding. post-windsor, there is a majority recognizing that, but i have to say, i really find that a very serious issue. the thing that is going on is you oddly enough treat the summary as binding precedent no less than a fully read opinion. everyone understands that is true. there is this language that the judge pointed out, doctrinal development. that's mainly from a 1975 case, hicks. it's not clear what hicks means because it then later says, you know, follow this until we tell you otherwise. then in american express, the court is pretty clear about saying even when you see one line of cases crumbling, you the lower courts aren't allowed to infer overrulling this other line of cases. i guess it really is a matter of

hiarchy. aren't we stuck with baker? >> i don't believe so. this is one line from the order. it binds the court unless there are doctrinal developments that are subsequent. roemer, windsor, and lawrence constitute that doctrinal development. >> you say doctrinal development. is it fair to paraphrase that to me reasoning that is inconsistent with other lines of precedent? isn't that what you mean by doctrinal development? >> there is evolution of these concepts, evolution of due process concepts, evolution of equal protection in lawrence and in, i think, the court -- >> that is grown increasingly inconsistent with baker, that's your point, right? >> it's totally inconsistent with baker. >> ok. isn't that agustini? isn't that what is going on? >> it is distinguishable. it was a full opinion that was -- that had written opinion, it had oral argument and a conclusion and the distinction between the summary and that type of situation is the fact that in a summary affirming order, you don't know what the rationale for the court is.

it's an 11-word order. you don't know what the rationale is. you don't know what the court based its ruling on. that is what distinguishable about these type of rulings. >> i think that's why summaries aren't binding on the supreme court. they're very casual about ignoring them, but i didn't think that rule applied to lower courts. >> the second circuit in league of women voters of nassau county explained that lower courts can be informed directly by an outright reversal of an earlier decision or they can be informed indirectly by doctrinal developments. so they help or what we would say is that here are the doctrinal developments are the way that this court is informed, and, therefore, this court can make the call, this court can make the call despite baker and every court in the country has ruled this way on baker. >> that wasn't true on the first

and second circuit for windsor. >> before windsor, right? >> windsor is doctrinal development, the most doctrinal development that we have, it's a recognition of the same-sex marriage case. it's the degree that i would argue doctrinal development case. >> lawrence and roemer were doctrinal development. i think you rely on those cases. >> we do. >> that didn't fall through their view to look at this? >> it didn't alter the sixth circuit -- >> in the second circuit's view before windsor? one of those cases was windsor itself? >> i understand that, the court in perry certainly -- let me put it this way, the court, the supreme court had that issue before it. there was a discussion on the record with i believe justice jeansberg talking about --

beginsberg talking about don doctrinal development and the court didn't think anything on that. the court doesn't think much about that. it didn't even mention baker. it didn't even talk about it. and the court allowed california's ban to be struck down. >> it would have been pretty strange for windsor to say anything about baker given that the companion case to windsor is hollingsworth and they decided there was a jurisdictional impediment for getting to the issue presented in today's case. >> i understand. i understand what the court is saying. i think in this case, this court can reach it because, you know, there has been doctrinal development. >> we are not asking to redefine the marital relationship.

we are only asking for an end that prevents same-sex couples from the right to marry. due process focuses on the attributes of the right itself, not on the fact that the person -- >> when you're talking about getting that right, it requires statewide, that's what your clients want. >> they want state license. >> license, fair relationship. >> that's correct and the right to marry, yes. >> well, the import there is something different than i thought you were talking about. you want them to recognize it and to license it by the -- the state to license it. >> we do. >> ok. >> the central attribute of the marriage is the freedom to marry the person of your own choice. the state cites glovesburg that

the court must make a careful of the right asserted. loving versus virginia, turner and the list -- >> i mean, i just, that is 1967 decision so in 1968, say a gay caucasian man and a gay african-american man go to virginia to seek a license to marry. do you really think loving controls that case in 1968? >> well, i think the court by citing loving in windsor thinks that there is not much difference between marriage by a same-sex couple and marriage by an interracial couple. they didn't decide the case but they cited it. the trend is certainly in that direction. i think the court -- >> it's different from saying what loving stands for. isn't the answer to my question about what happened in 1968 pretty obvious because we have baker in 1973. >> i think that lawrence, excuse me, that justice kennedy tells us something about how the court may be viewing these cases.

i think what he is saying and i think you see it in lawrence and you see it in windsor. the court is saying that back decades ago, certain practices were accepted. now we understand more about these things and we now understand that these are now going to be framed as discriminatory. we didn't know anything about same-sex couples back at the at the time of loving. these were hiding because their conduct was criminalized. i think to say that this is, with the argument hold water back in 1967, it was a different time. >> what about, i know that there is many significant benefits, some of them monetary and extended to same-sex couples if you win here and i think that's

significant, but i have to believe based on the briefs that the most important thing is respecting dignity and having the state recognize these marriages the same way heterosexual marriages are recognized. if respect and dignity are critical or the key elements here, maybe there is something i'm missing. i would have thought the best way to get respect and dignity is through the democratic process, forcing one's neighbors, co-employees, friends to recognize that these marriages or the status deserves the same respect as the status in a heterosexual couple. so it's just funny to me why the democractic process which seems to be going pretty well. nothing happens as quickly as we might like, i'm just curious how you react to that point.

>> the michigan marriage amendment gutted the democratic process in michigan. voters can no longer appeal to their legislators. the usual deference to the process evaporates, there is plenty of reason to infer antipathy here. >> michigan voters have put, another initiative were put in front of them, it may be a different vote and may well be a different outcome today. >> the practicality, the michigan voters, to get this before them, you would have to come up, the signatures of 10% of the total number of voters that were in the last general election for, it's very cost prohibitive for a disfavored minority to be doing that. >> change of hearts and minds which i believe is one of the key goals, isn't that worth the expense? isn't it more likely to change hearts and mind through the democratic process than you are by five justices of the u.s. supreme court? >> fundamental constitutional rights may not be submitted to popular vote. they depend on the outcome of no election. >> assuming you win, my question is assuming you can win on this, i'm asking you a question, why do you want this route? it's not 100% obvious to me why it's the better route, it may be the better route for your

clients and as a lawyer, you have to keep the focus on that, but it's not 100% obvious to me it's the better route for the gay rights community, that's not obvious to me. >> i'm not at all optimistic that we could get that in michigan, secondly, the government made that same argument. they said, just wait for the passage of the e.r.a., that would be better. that was 1973. we would still be waiting now. it brings injury here, marriage provides unparalleled social, legal, and personal meaning, commitment, mutual reciprocal responsibility, dignity. it is security, it is a status, it is stability. it goes well beyond the deprivation of the right to marry.

michigan's loss are pervasively discriminatory to same-sex couples. they are destabilizing to these families, something that i think all parties agree during this trial. april deboer is a legal stranger to her son and jane rouse is a legal stranger to her own daughter. it also brings the loss of important economic resources, we have lists all those. it brings psychological injury. we had a doctor explain that no matter how confident, how devoted, how caring that second parent is from the child's perspective, some children will suffer from an am bigous socially unrecognized seemingly nonpermanent relationship with the second parent. in a majority of the supreme court added more in sinned sore. they humiliate children. they devalue same-sex couple families in comparison with their opposite sex counterparts. the injury is especially unjust, especially cruel for our plaintiffs.

they took them in. >> these arguments seem really powerful if you get heightened scrutiny and maybe dispositive, but do they survive a rational basis review? >> on a rational basis, we think it flunks on a rational basis. the test would be it requires a connection between the purpose and the law itself. that connection is missing here. first of all, the mother/father rational. the ban as the judge indicated is not increasing those mother-father families. it's not detering same-sex couples from marrying, from having children, from raising them responsibly. >> but i mean, rational basis review allows under inclusive and overinclusive laws. that's really the whole point of it, that you can, the legislature can address a problem one step at a time and the fact that it's overinclusive or underinclusive, that's what the court means is that decisions will be corrected

through the democratic process. it seems like that's your point here. it's underinclusive. if you care about children, you should care about the children in these marriages. if you care about love and affection, you should care about these couples. they're just as capable of love and affection as the others. that is just not how rational review basis works. >> in a series of cases, the court struck down lines calling what the court calls riddled with exceptions, striking down laws suffering from that classification that -- >> those were unprecedented laws. windsor and roemer were unprecedented laws. if there is one thing we know in this case, this definition for

better or worse is not unprecedented. >> well, i think that to the extent that the court considers this a one factor test now, just assume for the purpose of argument that the test is whether it's unprecedented in the sense of never allowing, you know, never allowing same-sex couples before, whether it's, whether or not it fits the roemer, windsor characterization. i don't agree that it is a one factor test. what i see, what i see the court doing is looking at these laws in full context, a number of factors, using a more totality of the circumstances approach. it matters that these are intensely personal rights as opposed to say beach communications economic interest. it matters that this was a constitutional amendment and

i'll distinguish that in a moment. >> one of those rights emerging as an age discrimination case, it's a very personal right. plaintiffs have to retire at age 50 under the theory there is a correlation between age and physical fitness. of course, that's a ridiculous law in terms because you have 50-year-olds doing triathlons. the court upheld the law and i'm sure it was deeply offensive to 50-year-old, 51-year-old police officers who were more fit than their 40-year-old colleagues. that just gives you a sense of how tough it is to get through rational basis review or overcome it. >> the rational basis standard is not a toothless one. in jimenez case, social security to some illegitimate children

and not others, contraceptives to married but not unmarried persons, a rational basis review and conclusion. only hippies were denied food stamps, all were rational basis catches. the state talks about the robison case, johnson versus robison saying that the state only needs to show that the inclusion of the included group further a legitimate of the state. the state is misreading that case. the court found that the line drawn there rationally distinguished between the two groups, there was good reasons why conscientious objectivors could be denied veteran benefits and veterans could not. they were not similarly situated with respect to those benefits. here is the problem that we have with the biology rational. michigan has a robust policy of adoption. it allows single, gay, and

lesbian people to adopt. in michigan, adoptive parents have the same legal rights as biological parents. it allows donor sperm. it allows artificial insemination. cases are struck down under rational basis that are riddled with exceptions. so the ban doesn't face that rationale. another disconnect. people can marry without having children and people can have children without being married. infertile, involuntary, they can all marry. equal protection under constitutional law doctrine distinguishes between marriage and procreation. in griswold, a contraception case, a court found that married persons have a constitutional right not to have children. in skinner, 1942, habitual criminals can't be subjected to forcible sterilization, not a marriage case at all. >> the problem of unintended pregnants? >> with unintended pregnants, there is another disconnect. proof again it's the same problem with procreation, but the end doesn't do anything to disincentivize heterosexual couples from marrying. marriage gives that to them already. the ban doesn't do anything to

take it away. the idea of accidental pro creation, it's a nonrationale, there is a disconnect there between the purported purpose and the classification or the law that is in place. the right to procreate is clearly independent of the right to marry. just scalia said that in lawrence. the bottom line is while many persons within marriages do in fact procreate, courts cannot require procreation as a precondition to a constitutional right. the state is now arguing as a factual matter, which this is a different argument than we faced in the district court. voters must have believed that the mother/father families are preferable. that claim is based upon irrational speculation. it's based upon disproven

irrational speculation. the social science consensus answer is not what matters. parents are important as p.m. two parents bring double the resources. the parent-child relationship matters the most. the relationship between two parents matters. and please note in the district court, the state fully engaged in the child process. they offered expert testimony on the mother-father rationale, on the biological tie rationale. they don't summarize those witnesses before this court. >> the question about pacing which seems to be at the heart of this as we are looking at it, i saw a statistic in one book, i think it's michael harmon's book that says in 1985, 25% of americans knew someone who was gay.

by the year 2000, it was 74% of americans knew somebody who was gay. and when you see that statistic, you realize social science statistics have nothing to do with this. all of this change is as a result of the concrete trumping the abstract, people knowing they can have relationships, be great parents and so forth and what is a little odd to me about the police officers' positions in these cases is it doesn't show much tolerance for democracy's, sometimes being a little slower than we like. i mean, we have 21 states including the district of columbia, in one way or another now recognizing gay marriage and we have a lot of other states that i suspect are pretty close and some other states that will probably take a little longer. it doesn't have with social

signs. the change has to do with people knowing one another and seeing there is no reason for these distinctions. it's just odd to me that the supreme court chose not to deal with this issue two years ago, that's something of a pacing decision. it stayed all these decisions. it's something of a pacing decision as to when the right is recognized. i guess it's just odd to me that state legislatures don't get a little bit. benefit of the doubt in terms of when the pacing is right for them. >> again, in michigan it doesn't matter what the legislators do anymore. it's a constitutional ban. >> four of the states did this through initiatives. in other words, four of the states ruled that it came out the right way in your clients' perspective through initiatives. initiatives are just as effective as legislation on this

point. >> ourselves would have to be repealed. we talked about that already. in addition, judge freedman found that the constitution is for the here and now. this court doesn't have the luxury of dodging a constitutional, dodging a constitutional challenge. i understand that the court in perry didn't decide the ultimate question. the court looks to be telegraphing in windsor in terms of some doctrinal change and if the court was intending on telegraphing, it worked. 20 straight decisions where, you know, bans have been struck down. so i think the constitution is for the here and now. i don't know about numbers and i don't know how many were in line when the court decide loving, we are the flyover states. we have a tendency, tennessee, michigan, texas, and ohio and nothing has been done to help gay and lesbian people for decades. on the coast, things have worked and then that's wonderful. >> it was repealed. >> that was one urban area. i can tell you in my state, nothing is happening to help gay people. in terms of the science that you talked about that, the science, this is a consensus borne of 30 years of research on same-sex parenting, 30 years of research of child development. we learned from the state's own

expert that the government and universities have stopped funding in this area on this topic because of the social science consensus, the wait and see approach is not itself a rational basis. it's not even a reason at all. >> there is another problem with the state's child outcome rational. no other group in society has to pass apparent competency test for they are allowed to marry. parents who have low incomes, lower educational levels, who want to marry again. there is no competency test but we do not bar them from marrying, nor do we borrow -- are them from having children. the argument has been raised that a decision striking down the band would improve -- intrude on religious freedoms. judgment will not require any change for religious institutions. they would be free to practice their sacraments, rituals, traditions as they see fit. like the 10th circuit this court can specify that no religious

current -- clergy will be required to solemnize the marriage. religious conflict is not a basis for denying fundamental rights. if and when the case was presented the court would have to balance competing constitutional rights the way it always has. the court is required to do this. you look at the hierarchy of rights and the level of intrusion. the court would render a decision. we have alleged that

intermediate scrutiny applies here because plaintiffs as gay and lesbian persons qualify because of class status. we renew that argument here and differ to the brief and the wonderful brief of the lot institution professors. just briefly we believe the equality foundation could be revisited. it does not require a decision because there is an inconsistent decision, equality foundation was inconsistent with the supreme court that requires modification. the decision, it could be lawrence of cleveland. the court clearly does not applies the cleburne factors. davis scarborough did not have to address the standard of the majority in lawrence

through justice kennedy, referring to the office of the due process clause wrote that times can blind" us to certain truths. and later generations can see that laws once thought necessary and proper serve in fact only to oppress. so in our case as well we should remember that over the course of history, on occasion, we as a society have lost our footing area and our humanity. eventually we write ourselves. constitutionates gives us the backbone and a lodestar in an ever-changing society. it was written for all citizens for all time. itis simple, it is genius, is dynamic, and most of all it is humane. it can and must be interpreted to acknowledge a changing society.