president, gave us a rousing call to arms, and many of us stood justifiably and applauded, all of us who cover the beat or have covered the beat. stand and be recognized. [applause] you saw the video, we will get to the award winners in a moment. there's another award that honors excellent to news coverage of significant national or regional nature. it is a $2500 award, we have two

winners, one group from "the wall street journal," gary fields, john entweiler, rob coulter jones. our judges said this about their series called america's rap sheet. they said it explored the roots and consequences of a country's current policing crisis, illuminating the dysfunction of the system that contributes to the disenfranchisement of our most honorable citizens. though award winner, ladies and gentlemen, a round of applause please.

so when there is a co-award winner, we are waiting for the next award winner. that would be carrie leone from "the washington post." [applause] i think we all know what she is getting this award for. breaking news coverage of problems within the secret service that our judges found to be compelling and illuminating for many reasons. carol leoni, congratulations. you saw the video. it has been around since 1970, it honors excellence and reporting about the white house under breaking news pressure. josh lederman of "the associated press."

i'm delighted to say that there is a broadcast component to the award. the recipient, as you saw in the video, abc's jim avalon. before we hand out this last award, i really want to hear a cheer from "the new york times"

table. i really want to hear it now. peter maker of "the new york times," ladies and gentlemen. one last round of applause for these outstanding journalists. [applause] christi: thank you, major. and now, what is by tradition our only toast of the evening. i first started covering barack obama in 1997.

that is when he showed up at the illinois statehouse to take his seat in the illinois senate. my keen political intuition kicked in right away. i was one of the first to see it. if he worked hard and really applied himself, he could go all the way. he could one day be mayor of the city of chicago. [laughter] keep shooting for the stars. it's a big job. a lot has changed since then. for one thing, he is much harder to get on the phone. it is harder to get an interview one-on-one until tonight. mr. president, we appreciate your presence here, and we recognize that your information -- it as your affirmation of

the importance of the free and adversarial press. [laughter] ladies and gentlemen, police joining, raise a glass and the toast, to the president of the united states of america. the podium is yours. [applause] >> the president, often criticized for his caution, is now doing things his own way. he's trying to deal with china. we will see how far he can take it. ♪ i don't care i love it i don't care i love it i love it i don't care io love it i love it i don't care

i love it ♪ ♪ pres. obama: good evening. welcome to the white house correspondents' dinner, a night when washington celebrates itself. [laughter] somebody's got to do it. welcome to the fourth quarter of my presidency. [laughter] it's true, i -- that was michelle cheering. the fact is i feel more loose and relaxed than ever. those joe biden shoulder they're like magic. [laughter] you should try one. oh, you have? [laughter]

i am determined to make the most of every moment i have left. after the midterm elections, my advisors asked me, mr. president, do you have a bucket list? i said, well, i have something that rhymes with bucket list. [laughter] [applause] take executive action on immigration? bucket. [laughter] more climate regulations? bucket. it is the right thing to do. [laughter] and my new attitude is paying off. look at my cuba policy, the castro brothers are here tonight. [laughter]

welcome to america, amigos! the castros are from texas? oh, hello. anyway, being president is never easy. i still have to fix a broken immigration system, issue veto threats, negotiate with iran all while finding time to play ray five times a day. it is no wonder that people keep pointing out how the presidency has aged me. i look so old john boehner has invited benjamin netanyahu to speak at my funeral. [laughter]

meanwhile, michelle has not aged a day. [applause] i asked her what her secret is. she says, fresh fruit and vegetables. it is aggravating. [laughter] [applause] the fact is though at this point, my legacy is finally beginning to take shape. the economy is getting better. nine and death in 10 americans -- nine in 10 americans have health coverage. you no longer have to worry about losing your insurance if

you lose your job. you are welcome, democrats. [laughter] [applause] look, it is true that i have not managed to make everybody happy. six years into my presidency some people say i am arrogant and aloof, condescending. some people are so dumb. [laughter] no wonder i don't meet with them. that's not all people say about me. a few weeks ago, dick cheney says that he thinks i am the worst president of his lifetime. which is interesting, because i think dick cheney is the worst president of my lifetime.

[laughter] [applause] quiet a coincidence. [laughter] i mean everybody has something to say these days. mike huckabee recently said, people should not join our military until a true conservative is elected president. think about that. it was so outrageous, 47 ayatollahs wrote is a letter trying to explain to mike huckabee how our system works. [laughter] it gets worse. just this week, michele bachmann actually predicted that i would bring about the biblical in the days. [laughter] now that is a legacy. that's big. i mean, lincoln, washington, they did not do that. [laughter]

in fact, i have to put this aside and stay focused on my job. because for many americans this is still a time of deep uncertainty. for example, i have one friend just a few weeks ago she was making millions of dollars in year and she is now living out of a van in iowa. [laughter] meanwhile, back here in our nations capital, we are dealing with the challenges. i'm happy to report that the secret service thanks to excellent reporting by white house correspondents, they are really focusing on some of the issues that have come up, and

finally figured out a full proof way to keep people off my lawn. [laughter] it works. it's not just fence jumpers some of you know that a few months ago a drone crash landed. that was serious. don't worry. we have installed a new state-of-the-art security system. [laughter] you know what, let me set the record straight. i tease joe sometimes, but he has been at my site for seven years. i love that man. [applause] he's not just a great vice president, he is a great friend. we have gotten so close they won't service pizza in indiana anymore. -- serve us pizza in indiana anymore.

[laughter] i want to thank our host for the evening, the incredibly talented

sicily strong -- cicily strong. [applause] she impersonates cnn anchor, which is surprising. usually the only people in president journalists on cnn are journalists on cnn. [laughter] abc is here with some of the stars from his new comedy, blackish. [applause] it's a great show, but i should give abc fair warning, being blackish only makes you popular for so long. [laughter] there is a shelf life to that. [laughter] as always, the reporters here have had a lot to cover over the past year. on the east coast, one big story with the brutal winter. the polar vortex -- they renamed it msnbc. [laughter] of course, let's face it, there is one issue on every reporters has seen, and mind you that is 2016. we have seen some missteps. jeb bush identified himself as hispanic in 2009. you know what question mark i understand. it is an innocent mistake and it reminds me when i identified myself as an american back in 1961. [laughter] a ted cruz said denying the existence of climate change made him like galileo.

[laughter] that is not really an apt comparison. and that seems really self-centered, and when the guy who has his face i hope poster is telling you -- his face on a hope poster, you know that you are self-centered. meanwhile, rick santorum said he would not attend the gay wedding or marriage of a loved one to which gay people across america said, that's not going to be a problem. [laughter] and donald trump is here. still. [laughter]

anyway, it is an exciting time, we have the presidential race, and i can't wait to see who the koch brothers will pick. who will finally get that red rose? the winner gets a billion-dollar war chest, and the runner-up gets to be the bachelor on the next season of "the bachelor." a billion dollars! from just two guys!

is it just me or does that seem a little excessive? they need to spend $1 billion to get someone to like their people. i know, i have raise money to, but in all fairness, my middle name is hussein. [laughter] [applause]

and i really like barry sanders of vermont. he is a pot smoking socialist. if he is elected for president we could get a third obama term after all! [laughter] i often joke about tensions between me and the press, but honestly we have and add the serial system, and i am a mellow sort of guy, so that is why i

invited luther, my anger translator. [applause] luther: hold on to your lily white butts! pres. obama in a fast-changing world, the white house correspondents:' dinner is so important. luther: i mean, really! what is with this dinner?! jeb bush, do you really want to do this?!

president obama: we count on the press to shed light on the most important issues. luther: and we can count on fox news to terrify some old white people with some nonsense! ya'll is ridiculous! [laughter] president obama: cnn, thank you so much for the wall-to-wall ebola coverage. luther: we were one step away from "the walking dead!" that was awesome! oh, and by the way, you don't have ebola! president obama: i appreciate the work that you do. luther: ya'll remember when we had that big old hole in the gulf of mexico? and i plugged that? which obama's katrina was that one? i can't remember! president obama: protecting democracy is more important than ever. the supreme court ruled that the donor who gave ted cruz $6 million was exercising free

speech. luther: yeah, it's the kinda' speech like this, i just wasted $6 million. [laughter] president obama: hillary will have to raise huge sums of money, too. luther: oh, yeah. she gon' get that money! she gon' get all the money! [laughter] khalesi is coming to westoros! [applause] watch out. president obama: it creates problems for democracy. luther: and that's why we running for a third term. president obama: no, we're not. we need to stay focused on big challenges, like climate change.

luther: listen, y'all, if you haven't noticed, california is bone dry! it looks like a trailer for a new "mad max" movie up in there. ya'll think bradley cooper came here to talk to a judge? he needs a glass of water! [laughter] president obama: the science is clear. nine out of the 10 hottest years ever were in the past decade. luther: now i'm not a scientist, but i do know how to count to 10. president obama: rising seas violent storms. luther: mosquitos, sweaty people on the train stanking it up, it's just nasty. president obama: i mean, look at what is happening right now, every scientist says we need to act! the pentagon says it is a national security risk! we have elected officials throwing snowballs in the

senate! it is crazy! what kind of a shortsighted, irresponsible bull- luther: ok! whoa! [laughter] [applause] luther: all due respect sir, you do not need an anger translator, you need counseling. i am out of here, man. i'm not trying to get into all of this. [laughter] [applause] president obama: luther, my anger translator, ladies and gentlemen. [applause] now that i have that off my chest.

investigative journalism explanatory journalism journalism that exposes corruption, injustice, and gives voice to the marginalized, the voiceless. that is power. is a privilege. it is as important to america's trajectory, to our values and ideals, than anything we can do in elected office. we were member journalists we lost over the past year. journalists like james foley murdered for nothing than trying to shine a light in the world's darkest corners. [applause] we remember the journalists unjustly imprisoned around the

world. [applause] for nine months, jason has been imprisoned in tehran for nothing more than writing about the hopes and fears of the iranian people. his brother is here tonight, and i have told them personally we will not rest until we bring him home to his family, safe and sound. [applause] these journalists do their work as so much more than a profession, and indispensable pillar of society. i want to give a toast to them.

i raise a glass to them and all of you for the words of the american foreign correspondents' dorothy thompsons. it is a way to liberty is exercised that determines whether liberty itself survives. thank you for your devotion and exercising liberty and telling our american story. god bless you, god bless the united states of america. [applause]

christi: before i introduce our final speaker, let me take a moment to acknowledge several people whose assistance and friendship has been so valuable during this year. i want to thank the people sitting at the head table, the eight members of the board. they fight hard every day at the white house to do their jobs with excellence and to help you do yours. [applause] i especially want to thank vice president carol lee. nobody fights harder than carol. she is a fierce advocate for press freedom and she will be your president next year. [applause]

i want to acknowledge our incredible executive director, julia. julia, thank you for keeping this association's heart in the right place for so many years. [applause] thank you, george, our lawyer. for your insightful counsel and devotion to our core mission of fighting for openness and transparency. i think the tribune publishing bureau for their support especially david. and my white house colleagues. i thank the visionary editors. all of us are fortunate to work for wise corporate leaders at

tribune publishing. finally, my family visiting from alabama and tennessee. i say hi to my dad who is watching this on fox news. [laughter] and my family right here in washington, d.c. let me introduce our next speaker, cecily strong. [applause] like the president and the first lady, she is from chicago. she came up through second city comedy, and is now one of the most recognized members of the "snl" cast. she is no stranger to political journalism or it her father was an ap bureau chief in the illinois statehouse.

i'm sure that tonight, he is a proud father. bill, welcome. [applause] at last year's dinner, steve drew attention to the increasing diversity of the white house press corps area tonight, we strike a blow for diversity and political commentary. i don't know why, but women almost never serve in a position that cecily assumes tonight. it is about time. [applause] cecily, i gladly welcome you to this podium. [applause] cecily: ok, feels right to have a woman follow president obama doesn't it? good evening, i am cecily strong. you may know me from "saturday night live," or as the ethnically ambiguous girl from every college brochure. i am sort of a mash-up of all the people in hillary's announcement video. [laughter]

i'm also the first straight women to host this in 20 years so, we finally made it, straight people. where my heterosexuals at, huh? [laughter] no, you're lying, i know it -- and let me say something here, just because i am a woman doesn't mean i'm going to go easy on you. i'm going to go easy on you people the government brain is -- on you because my brain is smaller. i feel very lucky to be here. last year's host, joel mchale, proves that speaking at this dinner is an amazing opportunity

that can take you from starring on a show on nbc all the way to starring on that same show, but on yahoo! i took amtrak here. it was way more luxurious than i thought. did you know they have massage seats available? all you have to do is sit in front of joe biden. those hands don't get tired, somehow. i hope everybody enjoyed dinner. we try to get pizza to cater this event, but they hired a rumor that party frank might be here, so thanks a lot, barney. we should of had that world famous indiana pizza. i can make that joke about indiana because i am from illinois. [laughter] the white house correspondents' dinner is a chance for all of you to unwind, relax, and laugh as soon as you notice someone slightly more powerful than you laughing. [laughter] just so weird to be up here. since i'm only a comedian, i'm not going to try to tell you politicians how to do politics or whatever.

that's not my job. that would be like you guys telling me what to do with my body, i mean, can you even imagine? [laughter] [applause] tonight's event is being broadcast on c-span. so to some viewers watching at home, hello. but to most viewers watching at home on c-span, meow. [laughter] if you don't know how to find c-span, you just press the guide button on your remote, and hit page up until your thumb cramps up. i just wanted your camera check. ok, camera one. and that's it. [laughter] it is great to be here at the washington hilton.

which is something of a prostitute might say to a congressman. the washington hilton, you guys. man, if these walls could talk they would probably say, clean me. [laughter] it's crazy to think that our president is right here in the ballroom of the washington hilton. it's even crazier to think that our vice president is right now and the ball pit washington chuck e cheese. but seriously, the washington hilton is great. i bet that, when the president walks in and saw the bellhops, he thought, some decent security. [laughter] i'm just kidding, let's give it up for the secret service. yeah. [applause] they are the only law enforcement agency in the

country that will get in trouble if a black man gets shot. are you saying "boo?" or "true?" you are all in this together from the networks at front, to the internet and cable at the back, all the way to the print journalists who are busing the tables. [laughter] msnbc is here. i love msnbc. even their call letters are long-winded. just a great variety of shows.

rachel maddow, locked up abroad, locked up suv, locked up en espanol, msnbc has so many locked up shows. fox news is here. fox news has been losing a lot of viewers lately, and may they rest in peace. that's nice to say. it's all just hot blonde ladies and all dudes. it looks at a party scene from "weekend at bernie's." you've got to give it up for cnn. it's comforting to know that whenever a big story breaks, i can turn to cnn and watch anthony bourdain eat a cricket. [laughter] buzz feed is here, i can show you a listicle of 17 reasons why they shouldn't be. usa today is here. they are only here because they

were slipped under the hotel door. that's usa today, unless today is saturday or sunday. [laughter] npr is here. npr had a lot of success with the "serial" podcast, which finally answered the question, what would it be like if somebody whispered to me an episode of dateline? next season, pick somebody who definitely did it, like amanda knox. there was dna on the knife you guys. nbc is here. even us at snl got criticized

this year for making fun of isis. if anybody is guilty of taking isis to lightly, it's -- you know -- you know? [laughter] what can i say about brian williams? nothing, because i work for nbc. [laughter] [applause] there are so many stars from so many great shows here. we are in a golden age of television. i still see so many negative or portrayals of black and gay people. i mean, it's 2015, and we still have characters like john lemon, it's ridiculous. the cast of blackish is here which i think is inappropriate after the way they treated those whales at sea world.

have characters like john lemon, [laughter] the cast of game of thrones is here, and they tell me that even they have never seen this many nerds before. naomi campbell is here. naomi, you are lucky hillary is not here, because if you through your blackberry at her, she would delete everything right off of it. [laughter] hillary said she used her private e-mails because she didn't want to use more than two devices. if that sounds familiar, it's also one of the roles from the sex contract in 50 shades of grey. the cast of downton abbey is here. speaking of aaron, you may notice i'm a little tan. i just got back from the most fabulous trip that aaron took me

on, and i brought a instagram photos to share with you, so. you are probably familiar with this picture of him surfing in hawaii. see, there's me. i didn't even need a surfboard, i just use his abs. then he went diving into this swimming pool he had built. it hurt when i landed. here is me and aaron skydiving. he said his made his own parachute out of gifts his constituents made him. isn't that sweet? here we are at the eiffel tower. paris is so beautiful. mr. president, you should think about going there sometime. i hear the weather is nice in january. here we are in our trip to california. we must have done this for hours and hours, just so much wasted water. fun.

here we are at his own dinosaur island. here we are after hunting the dinosaurs. is that -- brian williams? what you doing, you rascal? aaron and i, we had so much fun. it was not romantic, it was strictly a friendship trip, he reminded in the every day. just because aaron schock resigned, it doesn't mean that are smoking hot congressman left. looking out tonight, i see so many tens. well, washington tens, but new york fours.

indiana 30's? harry reid was a boxer for he spent five terms as a punching bag. one of my favorite things that happened in congress this year was when senator jim inhofe brought in a snowball to prove that climate change isn't real. i mean, that blew my mind. i don't even need to see the other science projects. first prize, jim. you brought science to life, man! so cool. senator tom cotton got other senators to sign an open letter he wrote to iran. the most surprising thing is that a guy named tom cotton is a u.s. senator, and not a rabbit from an old racist disney cartoon. oh please, brer bear, don't throw allol' tom cotton in the

brier patch! in tom cotton's defense, he was just trying to repair america's strain relationship with israel. he doesn't need to worry about that. all relationship will be better in the next administration, as soon as israel is a generous donation to the clinton foundation. "true?" or "boo?" now, it's been a great year for women, as always. [laughter] this year, a representative from hobby lobby said they didn't want to pay for health care if it included things like contraceptive. which is weird, because all i asked him was what i'll is the -- was what aisle is the yarn in? i do love hobby lobby.

i weather this morning, and i bought the cutest wicker basket to hold all of my morning after pills. [laughter] a representative recently asked if gynecological exams could be conducted by a woman. use a camera that she can swallow, and now he and his wife have a perfectly good -- ruined a go-pro. so much to talk about this year. the big story, the republicans finally succeeded, and obama is being forced out of office in 18 months. you did it! so many great people have already announced they are running. who should i even vote for? hillary. it's like, who is better than marco rubio? hillary. who's better than rand paul? hillary. who's better on the economy than hillary? bill. [laughter] hillary's campaign slogan is

it's your time. which i assume she says herself in the mirror what she dead lifting 200 pounds. i'm excited about hillary running. i'm not sure she's excited about having to run, i think she feels the same way meryl streep feels when she has to audition for something -- " are you kidding me?" this next part is a repeat after me. i want all the media to put their hands up and swear something this election season ok? i solemnly swear not to talk about hillary's appearance because that is not journalism. [laughter] [applause] also, cecily strong looks great

tonight. [laughter] i don't want you to take any of this as an endorsement for hillary clinton, because i would never blindly endorse a candidate i do not play on snl. hillary clinton has her work cut off for her. her democratic challengers are a who's who of who's that? jim webb, lincoln chafee, and a few of them are characters from the adventures of huckleberry finn, but you didn't even notice, did you? let's not forget martin o'malley. i don't have anything to add that's just his actual campaign slogan. let's not forget martin o'malley. [laughter]

lincoln chafee is running for president is like watching a dog look for its owner. -0-- dead owner. it's like, oh, he doesn't know. [laughter] a lot of people want elizabeth warren to run, but many think she is too idealistic and her policies are too liberal. but look at president obama. he didn't end up doing any of that stuff. [laughter] the republican field is diverse, including people like ted cruz rand paul, and even people like chris christie, who is a democrat. jeb bush is probably in the race. the presidential race, not hispanic race. that was an accident. jeb is an accurate -- acronym for john ellis bush, which is like he is way over compensating for something.

marco rubio is running. when jeb bush found out he said, ay, dios mio. he makes mitt romney seem relaxed on the air. i just hope he gets comfortable before he gets on camera to endorse jeb. chris christie has said that he will crack down on legalized marijuana, because he believes it is a gateway drug. so, like a bridge to other drugs? and he wants to shut down a bridge? i'm just checking. polls show that his approval ratings in new jersey are low. the only thing new jerseyans approve of less is "that

dominican guy who's datin' ya' sistah." ted cruz, it's like the right-wing thought, what's the opposite of a black president? how about a canadian latino who will never be president? is true. he was born in canada, a child of cuban immigrants. i can't believe he wasn't in hillary's announcement video. [laughter] seems like a lot of work just to be a fox news pundit. rand paul has announced he is taking over the not being president business, and yes, that is rand, as in, he didn't get elected, but at least he "rand." [laughter] he is a libertarian, which is just a republican you have to block on twitter. rand paul's campaign slogan is defeat the washington machine, unleash the american dream. the american dream, of course, is the model name of rand paul's

wigs. defeat the washington machine, let's talk about the most important person in the room, my leader, the person i am so glad is in the white house, michelle obama. [laughter] [applause] michelle, take care of that garden while you can, because in 18 months, you know bill is going to turn that thing into an above ground pool. [laughter] seriously, michelle obama, what an amazing woman. a harvard educated lawyer, and a fierce advocate for lgbt rights, and the founder of the let's move campaign to combat child obesity. it is a dream to sit next year but it's a nightmare to eat next to you. actually, i have a confession, you know when i got up to go to the bathroom for like 20

minutes? i ate a cheese pizza behind the toilet and there, and i ate it. i'm sorry. [laughter] and of course, mr. president. thank you for taking time away from being on jimmy kimmel to be here. i know this must have cost a ton of food stamps, said thank you. i can say that, a lot of you probably don't know this, but obama and i grew up together in chicago. i remember when we used to go down to the basketball court. i would lace up a pair of jordans, he would slip on my mom's jeans. we would just miss three-pointers until sundown. of course, that's when it have to stop and pray to mecca. those were simpler times. now you have problems with

congress, vladimir putin israel. you said it yourself. we can't solve problems by holding hands and singing come kumbaya. kumbaya is a village in africa he was born. after six years in office, your approval rating is at 48%. your gray hair is that 85%. your hair is so white, it can talk back to the police. [laughter] [applause] we will high-five about that later. i bet you wish you were coming into office in 2016 instead of 2008. mr. president, you probably get this a lot, you are a lot like madonna. you have both given this country so much, but you gotta' stop. mr. president, it was an honor to be here tonight. thank you to the white house

correspondents' association whatever that is. i have to finish up, as the exterminators need to get into this room. i have a bathroom pizza to finish. thank you so much, good night. [laughter] [applause] christi: cecily strong, thank you. wonderful. now to bring our evening to a close, i would like for you all to remain seated while carol lee escorts the president and the first lady from the stage. [applause]

[captions copyright national cable satellite corp. 2015] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org]

>> at the international consumer electronics show earlier this year, we spoke with dr. michael bluhm about developments in medical technology and the future of medicine. >> you have to bring together these two different cultures, these two different dna's. they are great at that stuff but they do not know anything about process or doing clinical

trials, discovering what really works in biological systems. we are marrying the two up. >> tonight at 8:00 eastern on the communicators on c-span2. the supreme court, the center of attention the last couple of days. a look outside the court today. tomorrow the court hears oral arguments whether states must grant same-sex couples marriage licenses under the 14th imminent. -- amendment. several people on both sides of the issue have taken their places outside the supreme court, as you can see. here is a quick look. and just a reminder, our live

coverage begins outside the supreme court tomorrow, 10:00 a.m. eastern. we will bring you the sights and sounds again outside the courtroom. remember too, we will bring you the entire oral argument from tomorrow beginning at 4:00 p.m. eastern and that will be on c-span3. tomorrow on washington journal we will hear from brian brown and evan wolfson discuss tuesday's supreme court oral arguments. after that, more of those cases with david savage who will examine what a ruling either way would mean for the status of same-sex marriage in the u.s. today. plus, your phone calls and tweets. right now on c-span, a sixth circuit court of appeals oral argument in a case from last august that upheld same-sex marriage bans in michigan, ohio,

and tennessee. it involved a couple that initially challenged their state's ban against allowing same-sex couples to adopt children. it was responsible for setting up the case for the appellate court before the supreme court tomorrow. this is about an hour. >> may it please the court -- as justice kennedy explained 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, not 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 without 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? mr. lindstrom: 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 substantive 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. judge sutton: 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? mr. lindstrom: 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. for example a case specifically , said that summary dispositions are still binding unless reversed by the united states supreme court. so i think that -- judge daughtrey: 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? mr. lindstrom: 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 rest on a line of cases that have been overruled. so if the supreme courts override it, but i disagree on the doctrinal developments point, too. 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 -- judge daughtrey: you don't think lawrence overruling a case that came out just a few years before that indicates a doctrinal development? mr. lindstrom: 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 ground, and doesn't have anything to say about the fundamental right to marry.

judge daughtrey: what about the loving case that suggests, that the policy and the laws against miscegenation were not deeply rooted in our american society and yet that went by the by? mr. lindstrom: 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 -- judge daughtrey: 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 possibility of interracial marriage. and we language i am loving --

the language in loving says the right to choose whom to marry is a fundamental right. mr. lindstrom: to the extent that there is an attempt to analogies the question of same-sex marriage, the supreme court rejected that express analogy in the baker case. so it just doesn't matter what the supreme court has previously done -- judge daughtrey: so, what you want us to do is take an 11-word opinion and knock out all of the arguments for same-sex marriage in the last 10, 11 years? mr. lindstrom: there have been other courts that have recognized being bound by baker. 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 had the opportunity to do that, they didn't do that, that question was directly presented to that. so that shows there was a

different between race which does not go to the heart of what marriage is. judge daughtrey: but you would have to concede that there were in terms of what the electorate wanted, the loving decision went against what the electorate wanted in much of the south when it was announced? mr. lindstrom: i think it did not. when you talk about the electorate wanted, the electorate passed the 14th amendment to end racial discrimination. the electorate that wanted to end -- judge daughtrey: you might be understood in knowing that as recently as 1978 the tennessee constitution provided, "the intermarriage of white persons with negros, mulattos or persons of mixed blood descended by a negro to the third generation exclusive or living together as man or wife in this state is prohibited. the legislature shall support this section by appropriate legislation." in march of 1978, the tennessee electorate was asked to appeal that provision in the constitution and they did so but

they did so by a margin of only 8,000 votes out of almost half a million. mr. lindstrom: 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. judge daughtrey: 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? mr. lindstrom: if what you're saying is people are passing laws to change the law? judge daughtrey: 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. mr. lindstrom: 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. for substantive due process, they had limitations that were not deeply rooted throughout the

tradition of what marriage had been. again, the supreme court is talking about history and tradition of the windsor opinion. the marriage between a man and a woman for centuries has been recognized as fundamental. the supreme court was talking about the fact that the marriage is defined as being between a man in a woman as fundamental to the very definition of the term. that was true to the definition of the term and function throughout the history of civilization. judge cook: -- judge sutton: what do we do about the reality that the marriage is always about, it changes with social mores and maybe originally marriage was encouraging pro creation, channeling procreative possibilities. 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? mr. lindstrom: 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 thing that changes, and the reason the state has interest in marriage, marriage leads to children and the bringing of new children in society and how is society going to make sure that

they're cared for. so it's rational for the states to have an interest in promoting marriage 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. judge daughtrey: what is the rational basis for excluding everybody else? i mean, it doesn't cut down on the pro creation of children interfere with the pro creation of children just because you got two people of the same-sex marrying and in some of those marriages, at least one of them, one of the partners is able to procreate. mr. lindstrom: 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 advanced 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 objectors, are they entitled to these benefits, and extending benefits for college and just objectors would not advance the state's interest in making it more like being able to fight in the nation's services -- judge daughtrey: you would say that what we're trying to do in the confining marriage to opposite sex partners is to encourage procreation? mr. lindstrom: 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 pro creations. judge daughtrey: isn't that a little hypocritical then to have, allow people to marry who can't procreate but prevent same-sex partners from marrying? mr. lindstrom: 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 fundamental right to marry. you wouldn't get to that question. judge cook: you would acknowledge that there are benefits, important benefits to the state beyond procreation, i would think, 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 licensing 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, folks in marriages throughout the state all would have the same responsibilities those sort of things? mr. lindstrom: i think there would be other benefits from people -- judge cook: procreation. mr. lindstrom: 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 -- it is rational for the state to be promoting these marriages? judge cook: as everyone acknowledges, recent cases have not applied here rational basis review? we know that windsor, for example, placed the focus on difference in rational basis review. mr. lindstrom: 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. instead 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 too early to tell. the plaintiff's experts conceded that trying to study children raised in a same-sex household is a needle in a haystack population. they also conceded -- excuse me the 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 -- same-sex marriage, 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. judge sutton: you were starting with fundamental rights and talking about rational basis review. if you get to strict scrutiny or intermediate scrutiny through one path or the other, would you concede the state has a problem? mr. lindstrom: no, your honor, it would depend on which framework. if it were intermediate scrutiny, setting aside the fact that the court has three presidents, even if those weren't there, under immediate scrutiny, biological differences between men and women can make a difference. for example in the wynn versus ins 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. the other part under the equal , protection clause, the law stayed neutral and the law has no intent to harm. the district court in michigan's case specifically recognized it wasn't possible to say that there was an intent or an animus on the part of michigan voters. so that means the only thing that is left is the impact and under washington versus davis -- judge sutton: how did they stay neutral? mr. lindstrom: neutral -- judge sutton: marriage is including one group but not another? mr. lindstrom: by defining

marriage to be between a man and a woman -- judge sutton: 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. mr. lindstrom: 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. judge daughtrey: you mentioned the sixth circuit's presidents. i assume you're talking about davis? mr. lindstrom: as a friend of davis, yes, your honor. judge daughtrey: 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 -- mr. lindstrom: 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 does not 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. judge sutton: 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 may be controversy, there may be resistance, but why is it difficult as a matter of implementation to implement this new rule? mr. lindstrom: so, in other words the outcome were that same-sex marriage is constitutionally protected would it be harder for the states? judge sutton: yeah, what problems result? mr. lindstrom: i guess i think if you're talking about what possible harms might come from changing -- judge sutton: 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 -- mr. lindstrom: it would have widespread impacts, i'm not quite sure how exactly all those would play out. judge daughtrey: what would they be? that's the question. what would they be? mr. lindstrom: 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. judge daughtrey: do you honestly thinks that's what happened in the states where same-sex marriage is now valid? mr. lindstrom: i think it's too early to tell, your honor. it's only been 10 years since the first state passed it. judge daughtrey: we're now 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. mr. lindstrom: 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. judge daughtrey: 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. mr. lindstrom: i think that's a valid point, your honor. judge daughtrey: 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. mr. lindstrom: 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 philophers or historians to be able to tell. judge cook: to your point, mr. lindstrom, that the votes of citizens of michigan is that, i should think? mr. lindstrom: 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. judge sutton: the panel are people from ohio. we might be able to accept that argument. mr. lindstrom: well, fair enough. so i think the numbers in ohio are also quite, maybe more sensitive. judge daughtrey: the dates of the lifetime the people in michigan voted was something

like 10 years ago. mr. lindstrom: it was 2004 that's correct, your honor, people can change their mind in the future. judge sutton: your full rebuttal time, thank you. ms. stanyar. 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 starting 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? judge sutton: what about -- i mean, i realize before windsor the first and second circuits said baker is binding. post-windsor, there is no majorities 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 reverals or affirmatives 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 anticipatorily overrule this over line of cases. i guess it really is a matter of heirarchy. aren't we stuck with baker? ms. stanyar: 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. judge sutton: 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? ms. stanyar: there is evolution of these concepts, evolution of due process concepts, evolution equal protection in lawrence. and in, i think, the court -- judge sutton: that is grown increasingly inconsistent with baker, that's your point, right? ms. stanyar: it's totally inconsistent with baker. judge sutton: ok. isn't that agustini? isn't that what is going on? ms. stanyar: 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. judge sutton: i think that's why summaries aren't binding on the supreme court.

that's why they're very casual about ignoring them, but i didn't think that rule applied to lower courts. ms. stanyar: 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 held 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. judge sutton: lawrence and

roemer were doctrinal development. i think you rely on those cases. ms. stanyar: we do. judge sutton: that didn't fall through their view to look at this? ms. stanyar: it didn't alter the sixth circuit -- judge sutton: in the second circuit's view before windsor? one of those cases was windsor itself? ms. stanyar: 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 ginsburg talking about -- 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. judge sutton: 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. ms. stanyar: 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 person -- judge cook: when you're talking about getting that right, it requires statewide, that's what your clients want. ms. stanyar: they want state license. judge cook: license, fair relationship. ms. stanyar: that's correct and

the right to marry, yes. judge cook: 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. ms. stanyar: we do. the central attribute of the marriage is the freedom to marry the person of your own choice. the state citeses glovesburg that the court must make a careful of the right asserted. loving versus virginia, turner and the list -- judge sutton: 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? ms. stanyar: 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 --

judge sutton: >> trend lines are 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. ms. stanyar: 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. judge sutton: 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 democracy 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. ms. stanyar: 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. judge sutton: 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. ms. stanyar: 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. judge sutton: change of hearts

and minds which i believe is one of the key goals, isn't that worth the expense? don't you think it's more likely to change hearts and mind through the democratic process than you are by five justices of the u.s. supreme court? ms. stanyar: fundamental constitutional rights may not be submitted to popular vote. they depend on the outcome of no election. judge sutton: 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. ms. stanyar: 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 laws 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 listed all those. the ban 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 ambiguous socially unrecognized seemingly

nonpermanent relationship with the second parent. in a majority of the supreme court added more in windsor. they humiliate children. they devalue same-sex couple families in comparison with their opposite sex counterparts. it brings shame to these children. the injury is especially unjust, especially cruel for our plaintiffs. a nicu nurse, an emergency room nurse taking in the babies that were left behind, a premature infant in an incubator struggling to live, special needs children, hard to place children, children of color, foster children, they took them in. judge sutton: these arguments seem really powerful if you get heightened scrutiny and maybe dispositive, but do they survive a rational basis review? ms. stanyar: 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 deterring same-sex couples from marrying, from having children, from raising them responsibly. judge sutton: but i mean, rational basis review allows underinclusive 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 when it says improvident 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. ms. stanyar: 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 -- judge sutton: 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. ms. stanyar: 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. judge sutton: one of those rights emerging as an age discrimination case, it's a very personal right. police officers 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. ms. stanyar: 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, in rational basis review and conclusion. 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 furthers 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 while veterans could not. the court found the groups were not similarly situated with respect to those benefits. in cleveland, the law failed rational basis because the purported justification made no sense in how the law treated other similarly situated in

important respects. here this the problem that we have with the biology rationale. 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. michigan 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 childless, 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. judge sutton: the problem of unintended pregncies? ms. stanyar: with unintended pregnants, there is another disconnect. again, it's the same problem with pro creation, but the end doesn't do anything to disincentivize heterosexual couples from marrying. marriage gives them that 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 people. 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 this child process. they offered expert testimony on the mother-father rationale, on the biological tie rationale. they don't even summarize those

witnesses before this court. judge sutton: 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, 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 gay people, knowing they can have relationships, be great parents and so forth and what is a little odd to me about the plaintiffs' positions in these cases is it doesn't show much tolerance for democracy, 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. the change 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 of the benefit of the doubt in terms of when the pacing is right for them. ms. stanyar: again, in michigan it doesn't matter what the legislators do anymore. it's a constitutional ban. judge sutton: 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. ms. stanyar: 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. but 20 straight decisions where, you know, where bans have been struck down. so i think the constitution is for the here and now. judge sutton: sometimes the federal courts wait until there is a little bit more of a majority of states so that all you have are outliers, five or 10 outlier states and that's

when the supreme court steps in. ms. stanyar: 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 are tennesee, 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. judge sutton: it was repealed. ms. stanyar: 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 born of 30 years of research on same-sex parenting, 50 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 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