>> 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 irrational grounds. d w 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.

the tennessee constitution provided for the intermarriage dust to the third-generation inclusive. living together as man and wife is prohibited. they were asked to repeal that and they did. by a margin of only 8,000 votes out of almost 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. 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 tarriage just through that lens,

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 prelimin 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. an emerging recognition that some laws to discriminate against the marginalized, the in this case,, the most vulnerable members of our society. we know better now. there is no reason to treat people this way. we ask that you affirm. stanyar. ou ms. just a few quick points, your honor. our society has a mechanism for change. that is the amendment process. due process is not a mechanism

for change, it is a mechanism for preserving things that are deeply rooted in history. there's the amendment process that is available at the federal and state level. that is -- for example, there are six things on the ballot in 2012 through the initiative process. there are six different measures. that goes to the point that there is a state that is conferred. repeatedly, in discussing the dignity better than conferred, talks about being a dignity conferred by the state and that goes back to the point about democracy. the people confer that dignity by voting for it hurts the right process, if there's going to be change in this area, is not through the courts but through the people. her example in maine, maine went one way in 2009 where the legislative pass a law. people rejected it by referendum in 2012 and reversed course. >> may ask if you have any idea how long it would've taken in

the south of the supreme court had not come and what a shock that was down there? >> loving again violated the equal protection clause itself. it imposed invidious racial discrimination. loving case talked about the fact -- white supremacy. >> you told me that fact before. there is a point to be made that the reason that there hasn't analysis in the way of of discrimination against gay and lesbian people is because up until just 11 years ago, their conduct could land them in prison in many places. so you can't say it is not deeply rooted that they have a asideto marry, because from the right to marry, they might have had the sheriff in the hall outside the bedroom

trying to find out what they were doing in privacy in their own homes. >> if the question is whether it is a right to marry or the right to same-sex marriage, i think windsor answered that question. it talks about the history of same-sex marriage and recognizes that it is not deeply rooted it gain, -- >> the conduct at the basis of same-sex marriage was, until 2003, potentially criminal. any that not make difference at all? then the supreme court told us that in fact it shouldn't be considered criminal. where i have heard people refer to it as a tsunami of action that occurred. it was back in the beginning of that. when we had the michigan marriage amendment, was it not? i thought we cleared that up.

is correct, your honor, but again, lawrence was about substantive due right to privacy. it is not about -- >> it was about the fact that that conduct could no longer be considered a crime. it could no longer jeopardize engage in that conduct with a prospect of going to prison. >> that is true, but the court also recognized for example and justice connors conference in applying the same analysis to marriage, there is a difference between prior conduct and public recognition. this court has to look at the guidepost that the supreme court has recognized. the reason for that goes back to the importance of democracy in our system. the system being for the basic right we have as a people. that is to decide what is right on our own. but should be up to the people and not to the courts to take this out of the hands of the

people. this seems particularly interesting here where there does seem to be a particular trend that society is moving in. this may be one of the points in windsor, but recognizes that a victory that is earned through the political process is a truer deprives where the courts have decided, it deprives the people of an honest victory and honest to feed. under our constitutional system, it is rational of the people to have continued -- to continue to promote the idea that in general it is a good thing that children have a mother and a father. we would ask you to recognize the fact of the decision taking the side of the people's hands undermines democracy. it says this is not an issue that people of good will and reasonable people of good will can disagree about. i think this is an issue that reasonable people can disagree about as you can tell by all the voters in the sixth circuit that

have weighed in on this issue. lindstrom.u, mr. thank >> former secretaries of state madeleine albright and condoleezza rice assessing the conflict between ukraine and russia. first lady michelle obama and former first lady laura bush talk about opportunities for women and girls in africa. that, a discussion about campaign spending and dark money. >> while congress is on break, c-span primetime features elliptical topics. a debate on america's greatness. veterans health care. and the center for disease control and prevention. we vishe