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

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 the court a class the -- applies the cleburne factors. davis scarborough did not have to address the standard of scrutiny because they decided for the plaintiffs on other grounds. the majority in lawrence through justice kennedy referring to the authors of the equal retention clause and the due process clause wrote that the new 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." in our case is what we should remember that over the course of history on occasion we as a society have lost our footing. and our humanity. eventually we right ourselves. it was written for all citizens for all time. it is simple, it is dynamic to my and most of all, it is humane. it can and does be interpreted to acknowledge a changing society. in an emerging recognition that some laws do discriminate against the marginalized, the unpopular, and, in this case the most vulnerable members of the society. we know better now. there is no reason to treat people this way. we ask that you affirm.

>> thank you. mr. lindstrom, you have some rebuttal? linstrom: just a a few quick points, your honor. our society has a mechanism for change, the amendment process. that is not a mechanism for change, that is a mechanism for preserving things that are deeply rooted so there is an amendment process that is available at the federal and state level. there are six things on the ballot in 2012 to the initial process. there were six different measures. that goes to the point that there is a state that has conferred -- to discuss in windsor. in discussing the dignity that had been conferred, that goes back to the point about democracy.

people can for that by voting for it. if there is going to be change it is not through the courts but through the people. in maine, maine went one way and people rejected the referendum. people reversed course. >> if you have a long idea -- any idea how long this would take in a south. and what a shock that was down there. >> living violated the equal protection clause itself. it imposed invidious racial discrimination. >> you told me that before. it is the point being made that the reason that there has not been more in the way of analysis of discrimination against gay and lesbian people is up until 11 years ago their conduct could land them in prison. in many places.

you cannot say it is not deeply rooted, that they have a right to marry. because aside from the right to marry him i have had the sheriff in the hall outside their bedroom trying to find out what they were doing in privacy in their own homes. lindstrom: it would be a question about whether it is the right to marry or the right to same-sex marriage and windsor entered that western. windsor talks about the history and recognizes it is not deeply rooted. >> because the conduct at the basis of things -- same-sex marriage was until 2003 potentially criminal. does that not make any difference at all and then the supreme court told us that it should not be considered criminal.

that is where i have heard people refer to it as us and him he of action has occurred. and it was back in that beginning of that time when we had the michigan marriage amendment. was it not? i thought we cleared that up. lindstrom: that is correct. lawrence was about subsidy rights, privacy. it is not about -- >> it was about the fact that that conduct could no longer be considered a crime edit could no longer jeopardize someone engaged in that conduct with the prospect of going to prison. lindstrom: that is true but the court recognized in justice o'connor's conference, there is a difference between private conduct and public recognition. this court -- has to look at the guideposts in the reason goes back to this importance of democracy in our system. how the -- most basic right we

have is the people. and we can do that by amending the constitution. it should not be up to the courts to take these of the hands of the people. it seems particularly interesting here where it does seem to be a particular trend that society is moving in. it recognizes that the victory is a truer victory and a place -- the courts decided it deprives people of an honest picture. this is an issue that has left the states and it is rational for the people who have continued to promote the idea that in general, it is a good thing. we would ask you to recognize the fact that the decision

taking the set of people's hands undermines democracy. this is not an issue that people of goodwill, 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 the voters in the six circuit who have weighed in on this issue. judge: thank you. we appreciate both of your sets of briefs and your oral arguments today. thank you. the clerk can call the next case. >> that is a case that people are queuing up for. they will discuss same-sex marriage licenses under the 14th amendment all stop -- amendment. they will decide if they will recognize same-sex marriages in other states.

here is what some had to say. >> we have appealed to congress to restrain the judges and congress has heard our cries. steve king has introduced hr 19682 restrain -- 1968 to restrain the judges. the case before the supreme court is appellate. congress has the ability to remove appellate jurisdiction. we can take out their right to rule on marriage before they rule on marriage. >> i am from birmingham, michigan and we were married a year ago. we are here to listen to the oral argument and i hope the judges say "i odo." >> i'm here to see the supreme

court wrangle with and hopefully come up with the right decision so that i can travel from california to other states and have my marriage go with me. i'm scared of entering a state that does not recognize it. >> coverage of the case begins tomorrow at 10:00 a.m. we will bring you the sights and sounds and possible remarks from attorneys. we will play the oral argument in its entirety. tomorrow on washington journal, brian brown of the national organization of marriage and evan from the freedom to marry will discuss the oral arguments. david savage covers the cases and he will examine what the ruling either way means to the

status of same-sex marriage. plus, phone calls and tweets live tomorrow. now, the sixth circuit court of appeals argument on the same-sex marriage ban involving james and his husband, john, who was terminally ill. they married in a state that recognize same-sex marriage and had to sue to have the marriage recognize on a desert of to. it was the first major gay marriage law after victories and set up a split in the appellate courts. this is one hour.

eric murphy, interim director of ohio department of health. these cases involve state recognition of out-of-state same-sex marriage. in that respect, up from the michigan case that was just argued, which involved in state licensing for performance of same-sex marriages. in rejecting the ohio voters' d ecision on this public policy issue, the district court ignored its place in the judicial hierarchy and our constitutional democracy. the bigger point, it is as significant on this case as the michigan licensing case.

in the prior discussion, the first circuit case -- in that case, i think that analysis had it exactly right. the judge talks about how any right or they recognize has to be consistent with acre, -- with baker, which is a result that does not lead to same-sex marriage. the plaintiffs in this case have not proffered any ground in which to distinguish the right to recognition from the right to licensing. essentially, mimic the same approach with respect to baker. that is to say doctrinal developments have superseded baker. >> with respect to the nonrecognition part of the ohio case, didn't judge black line out there is this wrinkle that ohio does not seem to equally enforce this prohibition on out-of-state marriages that are not consistent with ohio requirements for marriage licenses?

>> in the equal protection context, he did suggest this refusal to recognize out-of-state same-sex marriages was unprecedented, which i do not think is correct. the courts have gone about it to distinguish between what they call void and voidable marriages. void marriages violate what would be deemed a common-law marriage. it would not be recognized whether they were recognized by another state. judge: a common-law marriage out-of-state would be considered void in ohio? >> it depends. the way the courts undertake the choice of law analysis is to say out-of-state marriage is only voidable, we will recognize it here even if it is unlawful here. that is the first cousins marry kate -- marriage case. for other types of marriages, if the marriage would be deemed void, which ohio courts would take to mean -- common-law is not recognized and would not be recognized.

the henry sales case, that was an in-state ohio marriage, a common-law marriage. the court established the rule that it was absolutely void and the court would not recognize it. that void versus voidable is the distinction, not same-sex marriage versus opposite sex marriage. that is one example for why i think baker is controlling. another distinction may try to make is to say that there is a substantive due process right not to marry, but marriage recognition. i do not even think you need to get to the analysis, because under the supreme court cases and this court's cases, when you have a specific provision directly on point, a specific textural source of protection, elsewhere within the constitution, you do not even get to substantive due process analysis.

i think that is applicable here. the full faith and credit clause is the clause dealing with, one state has to recognize another state possible is. the plaintiffs have made no argument, at least with respect to the marriage license itself that that would violate the full faith and credit clause. they say there is some suspect due process right to marriage recognition. the analogy we make in the breeze is, the brandenburg case, it refused to engage in substantive due process analysis with respect to a free-speech case. we are essentially making the same point here. substantive due process is not a super full faith and credit clause. all this goes back to the notion that all the rationales to try to distinguish baker fall flat. >> what is your assessment of this doctrinal development?

>> i think based on this court's own precedents, my interpretation of that phrase is, if you have a case that is all but overruled, a summary dismissal, but they did not go with a summary dismissal -- they do not expressly cited. the supreme court may be did not know, because it was a one night order. that is the type of doctrinal development that is necessary in order to implicate that provision. i think that is consistent with what this court has already held in the case cited in our brief. regular opinions and summary judgment should have the same president value. that means summary dismissals, every bit as regular opinions, trigger the agostini and rodriguez rule. i do not think they can be established in a manner

consistent with this court's cases, to suggest this rule is only for regular decisions. judge: aren't there some opinions that suggest, if they don't hold, that one of those summary dismissals might have some kind of binding affect on the court from which it came but not against the world? eric murphy: i do not think that is true. i think at least the right and distinction in the supreme court cases, the binding affect it has on the lower courts, versus the binding affect on the supreme court -- the supreme court has quite clearly, as you can see, said it has less binding affect in the supreme court. with respect to the lower courts -- judge: that was from michigan. i am sorry, the minnesota case. came out of the minnesota supreme court, did it not? eric murphy: that is true, your

honor. judge: whether he has standing -- is that -- i may be a little confused here. you have to address standing because it is jurisdictional, if without that party, you would not have a case. if you have other parties that clearly do have standing, one does not have to address it. to we have to address it? >> i do think you do. the rule you are talking about only applies when they are seeking the same relief. his relief is more -- the relief the plaintiffs sought was just as applied -- he wanted broader injunctive relief variant you can put it on the death certificates of any future clients. the general rule, when they are not seeking identical claims --

judge: as applied to one death certificate, but without it, you cannot attack more broadly -- eric murphy: the injunction. it would have to essentially be more forward-looking. with respect to -- i am happy to talk about the third-party standing point. with respect to that, i think it is pretty straightforward. the easiest route, the third-party standing doctrine -- there has to be a close relationship. the decision and kowalski made clear that a lawyer's future prospective relationships with clients was insufficient to establish the necessary closeness. and i think that is on all fours, i think, with this case. a relationship with a client is --

judge: that those were people that are ephemeral at this point. am i correct? >> future clients. that is correct. >> does he have current clients, and he is a member of the class, and his business actually is primarily dealing with the class that is at issue, as to funerals and burials. eric murphy: i would think you could make the same distinction. i think he is talking about future clients. he has not identified any other specific clients. the response to kowalski is to cite craig versus warren, which was the case dealing with beer vendords. kowalski established craig as being to be where the transaction between the two

parties is itself illegal. in that case, the vendors cannot sell beer to minors. judge: if there was no impediment to reaching these issues -- essentially the same issue in the tennessee and kentucky cases. it starts to look insignificant. do here hear what i am saying? either by opposing or invalidating, but do we care about in ohio? you would have a decision that would be binding. eric murphy: and barring a meaningful position -- distinction would not make a difference, would it? there is a difference between president and relief. i would completely concede that the state -- it would depend on what the opinion would say. i do not know that that -- the standings with respect to these cases. i think that is the easiest way

out, with respect to third-party standing. the other factor, not only closeness, but hindrance. it is not too much of a hindrance. they have been asserting their own rights. judge: you get the sense, for me, with these other district court decisions -- they say they are measuring a trajectory. it does seem fair to say the supreme court trajectory favors the plaintiffs. it is equally fair to say these cases do not compel an answer, you not necessarily answer the question. the trajectory does favor them. it just does. they are not saying it about

baker. hollingsworth -- but what is a lower court to do about that? eric murphy: i think with windsor, it is a garden-variety application of the animus case. judge holmes's concurrence in the bishop case was a pretty good analysis, this doctrine can apply. in windsor, it was an unusual federal intrusion into what had always been a state matter. and in romer, it was an unusual experience of illumination of one class of people's rights. that just cannot explain the traditional definition of marriage, which has existed since the founding of the states , and you cannot really explain

either, i don't think, the two thousand four amendments. i do not think the 2004 amendments were explained primarily by democracy. the citizens or the general assembly worrying that this fundamental question of public policy would be taken from them, either by a massachusetts court or by the ohio supreme court. it is a rational response to that concern to pass a constitutional amendment retaining the traditional definition of marriage. i think judge holmes had it exactly right in bishop why suggesting that in both of those cases, what they are really looking at is facially unprecedented laws. they raise the judicial eyebrow, so to speak, to apply this type

of animus doctrine. i do not think that concern is present with respect to the laws that have existed. there is something unusual about following the usual course. i think those cases are distinguishable on that ground. with respect to rational basis we talked about democracy. with recognition cases, there is uniformity, and having just one position on this fundamental issue, so that the laws cannot be easily evaded. the uniformity rationale also. judge: implementation problems arise if the plaintiffs win? eric murphy: require a

legislative response. birth certificates have fathers and mothers. maybe it should be changed. judge: it is a pragmatic question. eric murphy: i would imagine these things would happen throughout the revised code. there are references to husbands and wives. i certainly think that the general assembly would have to do a thorough read of the revised code to determine what needs to be updated. constitutional developments arise. judge: adultery and all of that, all i am hearing you say is that you have to use "spouse." that is all that would have to change. eric murphy: yeah. the pragmatic question, i did not anticipate it.

maybe i should have. yeah, i think there is no doubt that it would require -- it would require a new law being passed. judge: forms. eric murphy: the two country ones, with respect -- concrete ones, with respect to democracy and massachusetts controlling ohio on this issue, proceeding with caution seems a rational response. judge: you expect that and it is a variation on the pacing point. maybe that is rational basis. let's except that it is.

it cannot last forever. how does the court move on that? do they get the benefit of the doubt? how does it work? mr. murphy: the court implements it with the eighth amendment standards and they look at how society has changed over the years. you look at all of the facts. judge sutton: the way to handle the pacing point, you hit a trigger of states that recog nize same-sex marriage. mr. murphy: that is one response and it is new. the law is about drawing lines. i will point, it becomes

an irrational idea. judge daughtrey: i do not know how many states there are. they came in utah and they added oklahoma. i do not know how many more states there are. but if there are three or four you have 25 states. throw in four more and you almost have 30. hypothetically. [laughter] judge daughtrey: it is hypothetical. mr. murphy: the concept is too new. judge daughtrey: wouldn't your

guess be that it is going through north carolina, south carolina, west virginia? mr. murphy: i do not think you can pick states where courts have gotten involved. judge daughtrey: you are telling me that i should count the states and i am telling you that i am counting. mr. murphy: there are states that have democrat processes. if you take that number -- judge daughtrey: we have 20 states. the courts have already decided. that assumes that the supreme court is not going to knock it sideways. you know that they can count too. it is my feeling that they look at the polls. mr. murphy: maybe the counting point, you don't count all of the states in a circuit that has ruled one way and you do count the states where the attorney

general has decided not to appeal because, in those states, it is over. that number is around 20, 21. judge sutton: the fact of the matter is that a majority of states have pertained the -- mr. murphy: the fact of the matter is that a majority of states have retained the traditional definition of marriage and a cautious approach makes sense. justice alito handles this quite well. he talked about changes in marriages taking decades. i think it is too early to tell on the first day -- when the first state to recognize marriage was in 2004. judge daughtrey: what would've look like if alito was in the

the majority, written the windsor opinion? mr. murphy: he makes a distinction that he does not think that the federal government decision was based on animus and i think that he would have distinguished romer on that ground. i think it is a different question and the main focus of windsor was on the unusual nature of a federal intrusion into marriage. that would be the case. judge cook: the method by which you think about the methods by which -- if we are interested in the federalism idea -- the methods by which states adapt to changing mores? i am not just speaking about local aspects that people let folks in the general assembly or

whatever legislative body who there have asked -- whom they have asked to move things along locally. mr. murphy: yes. judge cook: i do not think we are talking about that so much. we're talking about impediments and getting pacing's speeded up. mr. murphy: a fundamental change in marriage when it has only been 10 years is irrational. what we're trying to say is that -- judge sutton: what we're trying to say is that there is a form of heightened scrutiny applied. you would have to concede. what is your take on the case of heightened review? mr. murphy: the michigan response was interesting, with respect to gender discrimination.

uncertain facts does not mean that a state with heightened scrutiny loses. there are uncertain facts in what seems to be a higher standard in the court and we have these facts. we are going to defer to the legislative branch on this, and i think the same analysis could be undertaken here. i think that the case that was just decided last term, the test you adopt has to be consistent with history and practices of the people. i think that if you think that heightened scrutiny versus a interesting, with respect to rational basis review makes the

difference, it is the test. the traditional definition of marriage has been with this country since its founding. with the last minute, i will talk briefly about the language and the last frame in the henry case. the full faith and credit clause are not recognizable under section 1983. the full faith and credit clause is like the supremacy clause. when a state has a claim, you should go to the preclusion law rather than the law the state -- it is a choice of law rule. judge daughtrey: there is a question. do you have any knowledge of how many years it was, from the start of the campaign until the 19th amendment when women achieved the right to vote? are you familiar? mr. murphy: i am not.

judge daughtrey: if i told you it took 78 years of crossing the desert back and forth trying to achieve it through a democratic process, would you be surprised? mr. murphy: no. not with respect to the united states constitution because it sets a high bar for a constitutional amendment. judge daughtrey: no. i'm talking about going into every state in the country. every school board election. 78 years. trying to get enough going to convince the legislatures to adopt or extend the vote to women. 78 years of it. would you be surprised to find out it did not work and it took an amendment to the constitution to finally achieve that after 78 years? mr. murphy: yes. there is no question the united states constitution is

different -- judge daughtrey: no, no, no excuse me. you are forgetting the point. you want to do this democratically, state-by-state and municipal government by municipal government, and it does not always work. it does not always work. 78 years to get women the right to go to the polls and vote. that is all. you do not have to respond. it is ok. [laughter] judge daughtrey: i thought you would want to know that in case you are ever on "jeopardy!" [applause] judge sutton: you have five minutes rebuttal to think about that and train for jeopardy. mr. gerhardstein: thank you.

may it please the court, three babies have been born to the plaintiffs in the last month and one adoption was finalized for another plaintiff couple. all were married in one of the 20 to 21 states where the issue is done. where marriage for same-sex couples is available. ohio refuses to recognize these marriages and also refuses to these couples and children recognition of parentage. ohio issues a birth certificate that denies recognition of parenthood to a parent. that is a serious harm. ohio says to surviving spouses

you must except a death certificate for your loved one that is wrong. it is one that says you are not married and leaves blank the spot where your name should go as the surviving spouse. this is such a big difference between the ohio and michigan cases. i support and agree with the arguments and terms towards the fundamental rights of marriage. we are doing a recognition case. judge sutton: can i ask a framing question that i fear is simplistic? i would love to hear your reaction. we have all these cases and issues and my simplistic way of looking at it is whether a state can decide, for its own purposes and citizens, whether to recognize same-sex marriage? if it decides it is not going to do that and if the u.s. constitution permits the choice,

it seems odd to me that they can be told even though you can make that choice for your citizens, as someone comes from another place, you in that issue. it follows that you will win the recognition. mr. gerhardstein: ok. let's look at the decision grid. you suggest that this is a threshhold question for all of us. judge sutton: it is a way of thinking about this and maybe it is simplistic. mr. gerhardstein: it is one way to do it. you look at the question over here and what is the state definition of the access they will provide to marriage. and that can be a fundamental

right to marriage, saying it is a bilateral association and it is a fundamental right to marry. a number of states have already ruled that way. if that is the situation, our case is simple. then you have, under due process, a notion that once you are married, that attaches all kinds of vested rights. you have important parenting rights and child-rearing rights that are recognized by the supreme court. for history, that has been transportable across state lines. so that is a separate argument that there is a fundamental right to marriage recognition that is transportable. then you have another line

windsor, which is equal protection. if you have an unusual situation like section three of doma where the federal government always accepted something as a marriage and same-sex couples, they say we are not getting into the business of defining marriage. that is unusual discrimination that requires special consideration. and when the court applies that test, not putting a doctrinal label on it, it said that that type of discrimination is a violation of equal protection, and it is a principled purpose to oppose inequality. is not whether or not a state defines marriage. it is about a pattern of practice over time that you are only changing because of the

type of people that now participate in marriage -- judge sutton: that is the government that is doing that. mr. gerhardstein: well, kennedy said he is not doing this on a federalism basis. the majority ruling should look at it as a equal protection case. the first case filed after windsor, we went out and hired the same experts and the same problems. ohio did have a long tradition and still does, of being on the extreme side of the state of celebration rule. so if you have always accepted underage marriages and common-law marriages, now, because of these 20 people in

these 20 states, you say, we are going to change the rules. that raises the bar. judge sutton: the supreme court decision? that is a first cousin decision. it is a case where the state does not have to recognize every marriage in every other state. mr. gerhardstein: if you go to our brief and you look at all of the sources that we cite and the ones that go way back, we cannot find another case where ohio has refused to recognize marriages from other states, that otherwise could not be practiced in ohio. judge sutton: there are like three cases. mr. gerhardstein: there is not a lot of case law. so, we have a rule of law and it is one that ohio has followed. then you have the added dimensions -- because when you look at windsor and you say,

what was the special consideration they introduced and how does it apply to ohio, you can look at other rational basis cases. rational basis does not just have one flavor. if you have discrimination and important personal interests at stake, as in griswold, where you have personal autonomy issues, if you got a departure from an established past practice, those are all factors that, if we look at the case law, it seems to suggest that we are looking at things more closely. judge sutton: you cannot say it

is unprecedented, because this is a definition that has existed. mr. gerhardstein: i am on my third prong. it is unprecedented that ohio would say to a group of people who are married in another state that they are not going to accept them as people they recognize as married here. judge sutton: it is it is unprecedented for the ohio supreme court says no, this is not mean that you have to recognize every marriage. mr. gerhardstein: it was theoretical and they are on the back door. when we look at the real situation, this back door involves people who have a history of discrimination and an issue that is personal and carries very important rights. judge sutton: i agree that there is a history of discrimination and there is no doubt about that. what is not so obvious to me is a history of discrimination when it comes to access to marriage.

that seems to me to be a recent phenomenon and a reflection of the current times. there is a sensitivity on both sides of the debate. mr. gerhardstein: what we really find is if you look at the windsor majority, the history of doma was looked at to determine if the departure was significant enough to trigger a violation of the equal protection clause. they said that it was and there was equal dignity being denied. and that it humiliated tens of thousands of children. in the federal context, it said there was no legitimate purpose. that all applies here. there is no legitimate purpose for ohio to say -- judge sutton: in one setting, the federal government is doing something it has never done

before and is doing after a state has decided to recognize same-sex marriage. in the case today, is a situation where each state has always been in charge of this issue. it seems like a serious difference. mr. gerhardstein: they have been in charge of definitions, and it is a rule that they have followed. it was a theoretical discussion as to what they would not follow. the deal that the couples made when they got married in new york, california, massachusetts, and delaware, was that they could have a marriage that would be -- judge cook: could it be added

into the logic of this that they were aware that they were moving to a state where same-sex marriage was not recognized? mr. gerhardstein: your honor, we are in a situation -- judge cook: it goes to the thinking you propose. mr. gerhardstein: there is not a negligence defense to a constitutional right. either your marriage is transportable or it is not. they got married because they are in love and they did not get married to think about where they could go. 44% of the people in this country live in a state where marriage -- same-sex marriage is available and the freedom of marriage has been recognized. that includes 20 to 21 states where the deal is done and there are no more deals pending. judge sutton: that should go both ways, don't you agree? mr. gerhardstein: no. this is why the recognition case is significant.

when the democratic process has played out and you are at this scale that we have here, nearly half of the country in a situation where they are told you cannot carry your marriage across state lines, that is the point, if ever there was one that the constitution requirement -- judge sutton: the reason i say it cuts both ways is, on the one hand, it helps you get to a tipping point where it is just outlier states. on the other hand, it suggests the democratic process is working effectively and quickly from the client's perspective. mr. gerhardstein: it has been 27 years. it has been a long process of development. judge, what i'm suggesting is

the ultimate role of the federal courts is to keep states from denying the liberty to certain citizens. here, when you have citizens who have a legitimate interest their marriage exists and is done and they can have children, the children deserve to have two parents and the state is saying, because of our commitment to democracy, we are saying no to you and we are waiting for you to reverse a constitutional amendment. we will see you when you can pull that off, when you can pull off that kind of funding and democratic action. the reality is these rights are very, very profound. we know, from supreme court case law, that marriage is solomon and precious.

-- solemn and precious. it has all these attributes. this cannot just be subject to those. i understand that a state is trying to figure out -- judge sutton: i am just curious why you are so sure about the better path. in other words, let's say the gay community gets to pick the path and you get your supreme court decision. or you can have five years to change hearts and minds in the remaining 29 states. it is not obvious to me what is the best path. mr. gerhardstein: i am suggesting a constitutional path under due process and the vested rights that come with marriage. judge sutton: the assumption of the question is that you can have either one. it is not obvious to me why a supreme court ruling in 2015 is a better path for the community, not necessarily your clients the community at large. changing hearts and minds happens through democracy. mr. gerhardstein: i understand.

but i represent four couples who have kids that deserve two parents today. and they are entitled to those under due process and equal protection. this is a loving situation which, by the way, was a recognition case. that couple got married and came back to virginia because virginia would not recognize the d.c. marriage. at the time of the decision, there were 15 states that had repealed a ban on interracial marriage. there was momentum going in their favor, but the supreme court still struck down the prosecution. there were 16 states that prohibited interracial marriage. judge sutton: that does not seem

helpful. that is not the analysis that the supreme court follows in loving. it is not the fact that virginia would not recognize the d.c. marriage. it is that virginia would not recognize interracial marriages. that path goes back so first question that i asked about the inquiry as to whether the state has the right to deny a same-sex couple a marriage license. mr. gerhardstein: even in windsor -- those facts came from loving and they did consider it relevant. but even in windsor, the supreme court makes a point to say that it assumes state recognition of marriage is consistent within the states. they say that twice in the majority opinion. what we are developing here is a

second tier of marriages in ohio. people come in with various legal hiccucps. ohio says, never mind. people with same-sex marriages ohio does, no. it goes to why special consideration should trigger an equal protection finding under animus. we have all of these facts that went into the passage of the 2004 ohio supreme court and ohio constitutional amendment. one of them, to name one, it is the state description of the measure that was published by the secretary of state blackwell, and it is on the website.

they have the pros and cons. it says this measure will prevent the state from spending any money and allowing homosexuals, described as being in deviant relationships. there is a prejudice there, and this notion that bears some weight. i remember -- i recommend to you that the amicus brief, there is 1 -- judge sutton: i have a lot of sympathy for the judge on this point. it is not to create a new category of people who are bigots. mr. gerhardstein: that is not the point. it is not about labeling somebody a bigot. it is like an unemployment case and my client was fired because

they would not accede to a customer's demand, in a title vii case, it is not a defense to honor customer prejudice. in this type of situation, under palmore, a case where a custody decision was made and the child was removed from a situation because the judge thought that living in an interracial family creates too much tension. the judge did not have any prejudice. the judge was acceding to the prejudice of others. what the supreme court said was not to pass laws that implement private kindness of others. it is not a finding that somebody is a bigot. judge sutton: how is it a complement to the people who pass this that they had animus? mr. gerhardstein: this is not

about it being a complement or not. this is about all of the factors we ought to look at to determine whether this measure, targeting this narrow group of people, the same group of people targeted in windsor, is constitutional. prediscrimination, with history of targeting even in the measures, description by the secretary of state. the text itself, think about the text, the constitutional amendment in ohio says not only that we aren't going to define marriage to include other than a man and a woman, it says no civil union, nothing that approximates marriage. it's saying get away from us, as far as you can, and those are the types of things that the supreme court looks at when -- even if we're doing rational basis. i won't use labels. i'm saying these are the factors. they all line up to say this deserves the same special consideration that the court

gave the federal measure in windsor and when you do that, especially in light of the role of the federal courts, to prevent states from denying liberty from people to defeat a backstop, it's appropriate to act now. was it appropriate before? i don't know, we weren't in this case before. i say that now with half the country practically, in a situation where they're going to want to bring their marriages across state lines and with those children in the balance, yes, now is the time to act. and it's appropriate to act. i would say, also that we ought to think about the harm that -- that we're dealing with in a situation like this. the couples that are our plaintiffs in this case, three of them, were impregnated by artificial insemination so there's no need to go to state court and deal with fathers that are claiming rights. and under ohio law if you're

married, and you use the process of artificial insemination the father is deemed the parent of the child. so that same rule should apply here and by the way, the implementation question is easily answered. just do a definition for all your laws. get away from "husband and wife" and "father and mother" and go gender neutral. i don't think that's a serious impediment to implementing marriage recognition as it would be here. and the difference is huge in this case. you've got the non-birth mothers of these three babies saying, i am a parent, sue me if my kid doesn't get my support. call me if my kid doesn't show up for school. prosecute me if there's neglect of my kid and ohio's saying no? we don't want that? we'll let this kid only have one

parent but if you're an opposite-sex kid you'll have two parents? that's a super harm to these children and that's part of why this matter is urgent because as we get more and more couples with children as we have in this case presenting themselves in ohio, we can't wait on the democratic process and suffer the harm at this level that they are suffering. both of those names need to be on the birth certificate and that's very practical. windsor talked 11 separate times about the dignity that was owed to same-sex couples and in that opinion, it said over and over, targeting these couples for this sort of second-tier status, humiliating these children who are in these relationships causes -- the very purpose and

the actual core of the statute is to treat them unequally and that's exactly what's happened in ohio. so we have both the same lack of dignity that was recognized in windsor and we have these very practical problems of children getting only half the parents. they should get both parents. the district court was correct when it said that the birth certificate is a basic currency by which parents can freely exercise those protective parental lights on -- rights on the parent's side and responsibilities is the only common governmental inferred uniformly recognized readily accepted record that establishing identity, parentage and citizenship and it's required in an array of legal context. so in this case, what you see in ohio is harms that come from marriage recognition from

cradle as in the henry plaintiffs, to grave as in the obergefell plaintiffs, and everything in between. without recognition, these couples are denied entstate secession, denied lack of consortium in wrongful death cases, they're denied tax benefits, other benefits. and these are benefits that are taken very granted by different-sex couples. i have been married to the same woman for 42 years. three great kids. the law is rigged in my favor because i get tax benefits, i get other benefits. and if -- and that's fair in a sense to rig it in favor of marriage because we pay our taxes. we buy our houses. we buy stuff at the mall. we take care of our kids. we put less demands on the government. and same-sex couples deserve a piece of that. there's absolutely no reason to treat them unfairly with respect to this balance that the

government has drawn with respect to favoring marriage. and it's important. and the death certificate is the same thing. it's important that it be accurate. it's the last record of a person's life on earth in this country and to be wrong, i mean, talk about a dignity violation. i mean, that is absolutely huge, and i think it bears -- it's sobering really. so each of the four children in the henry case have two parents not one. and affirming the district court will cause ohio to recognize these families and the marriages that anchor them, affirming the district court will also cause the death certificates of william ives and john arthur to

reflect their marriages and allow those men to rest in peace. thank you. judge sutton: their mr. gerhardstein. mr. murphy, i think you have a few minutes here. mr. murphy: thank you, your. honor. just a few quick points. first with respect to the question of isn't this case entirely impending on the outcome of the other case. how this case comes out most likely explains how this case comes out and if michigan comes out upholding the traditional definition of marriage, i haven't heard any basis for having an exception for out-of-state recognition but the first point that was made was substantive due process right deeply rooted in recognizing out-of-state marriages but that doesn't take on the notion that you don't create substantive due

process rights when you -- ignores the equally long standing policy. judge daughtrey: couldn't we say if we wanted to that ohio is perfectly free to refuse to recognize -- sort of reifies to issue -- refuse to recognize people who get into common law marriages within the state but then apparently allow somebody whose marriage is, a commonlaw marriage is considered valid in another state, to come in and recognize that marriage. mr. murphy: it's a notion of what ohio's public policy is. i think there's no question that ohio would recognize some marriages that would not be lawful in ohio but i think ohio has always retained the exception for those marriages that violate public policy and this public policy exception long redates this debate so i don't think there's any way you can say that the exception is

tied toward animus or there's no deeply rooted notion to the exception since it's cited in massrainian and brown which starts about the exception dating back to the 1890's. with respect to windsor i disagree that the federal rationale played no part in the ruling. it wasn't a constitutional case but the federal rationale was the entire rationale for why there was animus there and that federalism rationale is entirely gone here. the federal government had engaged in an unusual intrution and it was that unusual law that triggered the animus scrutiny under the equal protection clause and you just can't say that for these types of laws for the reason i just stated, this public policy exception has been around in ohio for a long time and certainly creates the

current controversy. judge daughtrey: but the public policy is not recognizing same-sex marriages, the content which would possibly have been illegal, a crime in ohio, for most of the time that you're talking about. mr. murphy: that just goes to show that there's no deeply rooted right with with respect to out-of-state recognition of same-sex marriage and the third point i'd like to point out briefly is the citations of some of the record materials and equality foundation this court made quite clear that legislative motivation especially in the referenda context are impossible to determine precisely because it's a referenda so it depends on the intent of all the three million voters who voted for this constitutional amendment and that's an analysis that is literally impossible. you can't gauge into the minds of everybody who voted yet for proposition 1. i think that is distinguishable

from roemer and windsor precisely because the court in those cases didn't engage in the legislative intent in the metaphysical intent and said the laws on their face are unusual and that's just not the case here so if there's no further questions, i respectfully ask the court to reverse the district court in these two cases. judge daughtrey: mr. murphy, can we go back to the 19th century history we were talking about. it occurred to me after you sat down, you thought i was talking about the sufroggists trying to get an amendment to the united states constitution. that's not at all what they did. they knew that was virtually impossible. they were going to the local people trying to get the right to vote on the school boards. they were going to each state legislature saying please enfranchise women so we can vote

on the state ballots in this state and they it state by state by state and when it came to the end -- and they did get the right to vote, finally in a few of those states -- there was still the question of whether they could vote in national elections and that's why the constitutional amendment was required. so i just wanted -- i wanted us not be talking past each other if you understand. mr. murphy: yes. democracy might be slow but in the end i think it has more legitimacy and i don't think it's going all that slow in this case. i know the process undertaken now, for instance, repeals the constitutional amendment but with that, there's no other questions -- judge daughtrey: you might have had a question? judge sutton: i'm fine. thank you, mr. murphy. appreciate your argument. the case will be submitted. >> our live coverage of tomorrow's supreme court same-sex marriage cases begins at 10:00 a.m. eastern on espn 3.

c-span3. we'll bring you the sights and sounds, those waiting outside the court. at 4:00 p.m. eastern, we'll play the entire oral argument on c-span3. it all starts tomorrow morning on "washington journal" as we hear from brian brown of the national organization for marriage and evan wolfson from freedom of marriage discussing tuesday's supreme court cases and after that more on the cases with david savage who covers the court for the "los angeles times" and "chicago tribune." he'll examine what a ruling either way would mean. and your phone calls, facebook comments and tweets. "washington journal" live tuesday at 7:00 a.m. eastern on c-span. and now back to today's "washington journal," a discussion on the obama administration's current approach to whistleblowers and current view of u.s. military action against isis. this is 45 minutes. host: and for a discussion on

federal whistle blowers, we turn now to a man with a unique and personal perspective on the subject, daniel elsberg. before we talk about this administration and how whistleblowers have been treated by this administration, for those who aren't as familiar with the history of it, can you explain what the pentagon papers are and your role? guest: my unique role is unfortunately no longer unique. i was the first person prosecuted for leaking classified information to the american public. in 1971, i gave 7,000parages of top-secret information actually first in the senate in 1969, and then 4,000 of those pages eexcluding some that i gave only to the senate, i gave 4,000 top secret pages to the "new york times" when they were enjoined. i gave much of that to "the washington post," they were enjoined. first time in american history that a newspaper had been told to stop the presses for a reason of national security.

and i gave it to 17 other newspapers 19 in all, in the face of four injunctions. the supreme court finally ruled that the injunctions were invalid and the papers, "new york times" and others, could continue printing to the public but i was indicted, eventually facing 12 felony counts, a possible 115 years in prison, for leaking -- in fact, for copying the papers. there was going to be a later trial on actually distributing them which would have involved the "new york times," as well, and the others, but in my trial i and my co-defendant, anthony russo, who helped me copy the papers, for the next two years were under indictment. eventually all charges were dropped when it came out in the courtroom that the president richard nixon, had conducted a number of criminal operations against me, operations that were then criminal, now legalized since 9/11 but sending assets

into my psychologist's office. the pentagon papers ended a study of u.s. decision making in vietnam from 1945 to 1968, top secret, 47 volumes. that ended in 1968 so it didn't implicate president nixon. he feared, correctly, that i had information on measures he was taking and in the war in what he claimed was ending the war or really trying to win it which included nuclear threats secret from the american public but well known to the targets of vietnam and their allies, russia and china. he was afraid that i would expose those threats which he hadn't yet carried out and might lead to heavy opposition to expanding the war in that way so he tried to stop me. eventually he brought 12 c.i.a. assets up from miami to washington to assault me on the steps of the capitol there actually, the words were, "to

incapacitate elsberg totally." i remember asking the prosecutor, what does that mean kill me? and he said, the words were "to incapacitate you totally." these guys never used the word "kill. " they were c.i.a. assets and talked about neutralizing and terminating with extreme prejudice. when these facts came out in the court, my charges were dropped but more importantly, nixon was eventually faced with prosecution or impeachment first and had to resign and that made the war endable so nine months after he resigned, the war ended. host: in all your years on this topic, is it easier or more difficult to be a whistleblower today? guest: it's subject to prosecution. i was the first to be prosecuted. not that i was the first person to leak information. that happened every day and still does to some degree, most

favorable to the administration or agency that serves their purpose but occasionally serving an investigative journalist purpose, there had been that too, but no one had been prosecuted because having had a revolution and the first amendment, we don't have an official secrets act as britain does so no one was prosecuted. the experiment in my case was to use the espionage act which was intended against and had been used against spies frequently and still is and was designed for that purpose they used it against someone who had given information to the american public. only two people after me, after my charges were dropped, were tried after that, until president obama. you ask how is it different now? president obama, who i supported in two elections, by the way president obama has indicted three times as many people for leaking as all previous presidents put together and the latest was general patraeus. host: and to give a visual of

that. here is the prosecution of you for leaking classified information under nixon. under reagan, samuel morrison. under george w. bush, lawrence franklin and the rest of those on this list have been prosecuted under the obama administration, names viewers here know very well, including bradley, chelsea manning, edward snowden, as well. guest: i'd like to get a copy of that visual. i'm giving a press conference on that subject. i could use that chart. host: i'll let you take that with you. talk about why you're in town today. guest: for this press conference. it was usually mentioned that he was prosecuting more people. at first it was three, four, five. it's rarely mentioned that he's prosecuted three times as many people as all previous presidents and it's not easy to explain why. all presidents hate

whistleblowers that help investigative journalists. why he's decided to use the espionage act, which is totally unjust, against leakers, and we can go into that reason. there should never have been one case, including mine. no whistleblower who's trying to inform the public, who a jury might not agree had done the right thing, but no whistleblower should be tried under the espionage act and that's the act under which they have been tried. it's designed for spies, not designed for people who in their hearts and in their efforts are trying to inform the american republic so that it can better exercise public sovereignty. host: what questions do you think they should ask themselves before they go ahead and become a whistleblower? guest: good question. to start with, when they're looking at secrets, which i did for a dozen years basically with high clearances, higher than top secret, i wish i had started asking myself much

earlier than i did in the government, do i have a right to keep this secret? naturally, the burden of proof is on the government -- on the idea of going against your promise to keep secrets. the burden of proof is to let the president decide what should be known and what should not be known. but by now anyone who's over 30 or 40, has been in the government for a while, should know that the president often conceals material that the public should know, that is wrongly withheld because it reveals crimes or misjudgments, deceptions reckless wars, and when people see that, which they often do, i wish they would ask themselves do i have a right to keep this secret? should i to fulfill my promise? or is my oath to the constitution, to support and defend the constitution, overriding in this particular case? i didn't ask myself that until late in the game.

edward snowden and chelsea manning asked that question. host: if someone asks that question and the answer is yes what is your suggestion? guest: i went to the senate and wasted a year and a half. they were afraid, not that they'd be prosecuted, senator fulbright, no chance to that, but that he would lose access to classified information in his job of ruling on foreign military aid. it would go to the more friendly right winged senate armed services committee instead of foreign relations so he didn't do what he promised me to do, bring out the material in hearings. in the end, i had to go to the newspapers. i wish i had done that a year earlier. i wish to say right now in advice to people, do it as there's a lot of material as often as it should be. how often should a large amount come out like the pentagon papers? once every 40 years? which is the current standard, i

would thinky not. about every year. somewhere in the world every month. some exposé like that. but it doesn't happen, i waited 40 years for a comparable leak and that was by chelsea manning. chelsea made the mistake of admitting it to someone who was a government informant at that point. so she's in prison facing -- serving 35 years at this point totally unfair. edward snowden i think did it right under current circumstances. he had complained to colleagues about this. had he done -- gone to the inspector general of n.s.a. or the d.o.d. at it as senator kerry said he should have done, he would have suffered the same fate as tom drake, curt wiebe ed loomis, bill bennie, who went to the i.e.g. and later went to congress and in both cases did nothing but infuriate their

bosses lose their jobs and fingered for possible leakers later so they were suspected of leaking when someone else did what they should have done in the first place and that was go to the newspapers so i would say snowden made the right choice. he went to the press, he went to greenwald and poythress and others put it out and could not have done what he did in this country. he would have from the moment he did that be in isolation like chelsea manning for 10 1/2 months never talking to a reporter. chelsea manning was arrested about five years ago, has never been interviewed by a reporter to explain why she did what she did, what it was about. so the idea that kerry and clinton have both said, you should make your case in court and in the public, neither of those is valid they're talking through their hat. they would have no chance to do it. host: daniel ellsberg is with us for the next 40 minutes on the "washington journal," author of

"secrets, a memoir of vietnam and the pentagon papers" and will be taking your questions. our phone lines are open. we'll start on our line for democrats. joe is waiting in fort washington, maryland. joe, good morning. caller: good morning, how are you? thank you so much for taking my call. mr. ellsberg, i just would like to speak on the fact that espionage has always been a serious crime in this country from the dates going back. guest: could you turn up the volume? host: concerned about esmessage-- espionage being a serious crime. judge, go ahead. caller: mr. ellsberg, i appreciate and thank you for your services but you sit there and represent edward snowden and you shouldn't even be up there with whistleblowers. he should be up there with with

espionage, benedict arnold. guest: i'm certain that edward snowden is no more than a traitor or a spy than i am and i'm not and i think accusations of that sort, which are plausible, people can suspect what they want, but i've met snowden, i've talked to him, i've followed his case very thoroughly. he may have made mistakes, he may have made things he shouldn't have done that i don't know of but so far as i know he's an extremely patriotic american who, like chelsea manning, was willing to really go into exile and face possible assassination, as i did under the white house in 1973 1972. i regard him as a courageous and patriotic american. the question of espionage, of course it's serious. i don't condone espionage, secret giving of information to a foreign power, especially an enemy, especially in time of war, i don't criticize any use of the espionage act against

such a case. no prosecutor has really suspected any of these leak cases as being in that category any more than general patraeus recently. but general parace -- patraeus would not have been fairly charged and the espionage act either, any more than jeffrey sterling or chelsea manning or i and i have to tell you why. the espionage act is designed for people who give secrets to foreign powers for the interests of the foreign power of the united states and it doesn't allow for any nawrmt court for your motive of doing that. it's assumed your motive can't justify what you did and i would agree with that. someone facing 18 u.s.c. 1893d and e, those are the charges, i can roll that off because i was the first person charged under them for leaking for a non-espionage case allows for

no argument in court by me or anyone else, why i did what i did, what the possible damage was that i was risking, what the actual damage was, what my motives were and what was risked by keeping it secret that was wrongfully kept secret. no argument can be made like that. i wasn't allowed to nor any of these other people. patraeus wasn't allowed to if he'd been given the charges in court that the f.b.i. wanted to give him under the espionage act. i'm not saying that to apologize or condone what general patraeus did in the way of his leaks. i'm just saying the espionage act is absolutely unjust as an application to someone who is clearly a leaker or a whistleblower and the congress has the ability to change that by changing the law by allowing for what's called a public interest defense or necessity defense so that the public interest defense so that any of these people charged of the 10 that have been charged there could at least present their

case to a jury as to their motives and why they did what they did and in the abence of that it's really the use of that act is unconstitutional. host: so a question from our twitter page from rick who writes in "so what is the current president's motivation to silence so many whistleblowers?" your thoughts on the obama administration? guest: i've asked that 100 times of people that i hoped would know better than i what it is. it is mysterious. i know of no one who expected president obama, republican, democrat, left, right or whoever, really foresaw this particular process. and i really don't know. one hypothesis is that he depends very much on mr. brennan who's a very hard-line c.i.a. person who advised him to use the act in this way. another is that came out recently i saw that he had -- was angry about one particular

leak and indeed all presidents are angry about all leaks that make them look bad, that are embarrassing. they give leaks every day that make them look good, but if it looks bad, they're all very angry. they asked that the justice department of how many people referred to the justice department for possible prosecution and the answer was 150. how many were actually indicted? zero. that is rather striking, of course. any other president could've said the same. the reason for the zero is that we don't have an official secrets act. congress passed one once and president clinton -- this was in november of 2000 -- clinton vetoed it on constitutional grounds. we don't have one and that is why there are no indictments. however, as in my case, the language of the espionage act is

there to use, unconstitutionally really, against it. apparently the justice department was saying to start using in a way that has not been done the before. that is a way of giving it the best benefit of the doubt. that is the least incriminating. i don't know what else to say. he is angry at people. of course, all presidents were. he does have more surveillance of metadata to show as in the case of jeffrey sterling to show what the context was even if he doesn't testify. how they talk to him when they talk. actually, george w. bush have the same though, but he didn't use it. i'm left with something of a puzzle. host: you mentioned jeffrey sterling who is awaiting charges about efforts to sabotage the iranian nuclear program. on that list, the title of that list is obama and hot pursuit of leakers, talking about this government workers who have been charged for allegedly leaking classified information.

garland is waiting to chat with you in cortland, ohio, on the line for democrats. guest: is interesting to note that in the jeffrey sterling case that all the facts leaked to george w. bush's term. he was investigated, but not indicted under george w. bush. he was indicted under obama and has not been employed for five years because somebody under charge of the espionage act has trouble getting a job. host: good morning, sir. caller: i'm concerned we are going too far the other way. there are methods and sources being released that are endangering our security apparatus and people that work for it. i'm not a lackey for the cia but they are doing valuable work. you don't know enough to know what the threats are you or i either. you have no idea. these dumps that were made by manning and more recently -- you don't know what they did in terms of harm to us.

guest: it is true that i don't know all the facts in this case. if all the facts, perhaps the ones that the government has not chosen to bring out, could convince me that something has been done here. in the case of chelsea manning and edward snowden, and both cases, the charge was made with some plausibility. there's blood on their hands. people will die as a result of this. in fact, high officials said of chelsea manning that people have died almost certainly as a result of this. that was five years ago. i would have not been astonished if they had come out with some evidence of that, and that would change the nature of the discussion very much. over the five years, not one instance of harm was brought even in chelsea manning's trial possible evidence was placed in

front of a judge. there was no blood. in the case of edward snowden, again, terrible disasters were forecast, and yet, three years have gone by -- two years have gone by, and no actual evidence. in one case, i think it was general carter who said 58 terror incidents have been prevented by the mass warrantless surveillance that snowden was exposing. 58. when senator wyden pressed, what were the specifics? what were the 58 cases? eventually the nsa came back and said it was not 58 prevented by the surveillance. it was one. what was the one?

$8,000 was sent by taxi worker in the u.s. to a group in the middle east possibly associated with terrorism. that was the one case. in short, you and i both have the expertise to follow this and see what the government comes up with in their claims. there's no question at all of the claims were elevated and expanded with very little base and saying how well the surveillance is necessary to fix those. on the other hand, you'll never hear from the official of judgment. how many lives are lost by keeping the secrets? i went to vietnam and lied into it like so many other americans. 3 million. that's a civilian. i walked in combat using my former marine experience. but i was a civilian. the people who were risking their lives and lost their lives

were lied into it, as were the people in iraq in 2003. all those lives like 15,000 in vietnam and several thousand in iraq could have been saved had someone like edward snowden or chelsea manning, who knew those lies were occurring, had blown the whistle beforehand and risk their careers and risk the lives imprisoned and told us what was really happening. so the risks of not telling the truth certainly have to be balanced against the risks of telling a truth that the president does not want told already. although it appears to be fairly embarrassing or incriminating to an experienced person who has access to it. i feel we would be better off with far more edward snowdens

and chelsea mannings than we have had. host: you talk about those risking their lives. richard rogers writes in on her twitter page, why would anyone risk their lives obtaining intelligence if someone like snowden can put it on the front page of "the new york times"? guest: for a patriotic reason. if he believes that intelligence would help the united states and improve security. i would hope that his experience and a handful past leakers -- how would it keep him from getting intelligence? i put more confidence in the patriotism and courage of those people who serve our country as intelligence agents. and it's cia people and nsa people. the problem is that when snowden was very well aware at nsa and having earlier enlisted in the special forces for iraq when he erroneously believed that that was for the security of the

united states and he broke both legs and training and that why he couldn't stay in special forces and worked for the cia and nsa, what he found was that all his colleagues were all saying is that what we are doing is terrible. this mass, warrantless surveillance of all americans and most people in the world serves no real purpose. it is not necessary. it is not right. the targeted surveillance we should be doing you can get a warrant for as long requires and the constitution requires. to do it without a warrant is unconstitutional and shouldn't be happening. so what do they do about it? they had kids and careers ahead of them. so snowden was, like manning

and, if i may say like me, was one of those rare people given the responsibility who says this is wrong and should not be happening. somebody should put this out. we were the unusual ones who said that if no one else is going to do it, it will have to be me. host: let's hear from peter online for independents. caller: i would like to thank mr. ellsberg and disagree with the caller who didn't. people should think what would it take someone who are risk their career and go to jail, here is mr. ellsberg today still standing by his principles. what is going on is that we have lost our constitution. we had people in prison with no speedy trial for years. that is pretty much all i've got to say. guest: thank you very much. well, obviously, i agree that the motives of these people deserve to be argued in court

and recognized. they deserve a fair trial. the espionage act cannot give them a fair trial. keep in mind that i'm not saying that people with good motives whether me or manning or anyone else or petraeus -- his motives of giving information to a mistress were a more favorable biography are not once he wanted to argue in front of a jury. he still have the right to do it. other people like jeffrey sterling who had very good motives and manning and others -- that doesn't mean that they should automatically get out. the jury can decide that the motives are not good enough. i don't believe you. nevertheless coming in, you should not have done what you did, if the jury has the chance to hear. in my case, i was not allowed to answer. host: this is attorney general

holder speaking at the press club. [video clip] attorney general holder: when you have people who are disclosing the identities of people who work in our intelligence agencies, that's the kind of case that we have to bring. this is a question for members of the press, as we have asked ourselves about national surveillance. we have the ability to do certain things, should we? members of the press have to ask that same question. simply because of a leak or information that you have, you have the ability to expose that to the public, should you? it is for you to decide, it's not for the government to decide. i will use an extreme example, perhaps unfair in world war ii, if a reporter

four out about the manhattan project, is that something that should have been disclosed grade i know it's an extreme example. i think there's a question that members of the press should ask about whether or not the disclosure of the information has a negative impact on the national security of the nation. we have tried to be appropriately sensitive in bringing those cases that warranted prosecution. we have turned away cases that were presented to us. guest: i have to agree. i do agree with everything he just said. it's ironic that he should the -- be raising this in the week

that general petraeus has been given two years probation and no jail time having consciously given a person who is not cleared to see it. he just described the most information that we have, the identities of covert agents. it's almost the highest of high grade he did it give it to her. we really don't know what she did with that. how many copies did she make? where did she store them? petraeus himself having lied to the fbi that he kept this information was found to have it in an unlocked drawer in his house. where does paula keep her copies of that information? we don't know and he doesn't know. i don't think he should go to prison for that. the irony of saying this is very

serious -- of course. i would not have given that information. the public does not need to know that. are there good secrets that should be kep, bad ones that should not occur? of course. should they be tried under the espionage act? frankly, no one would have a good reason for giving covert identities. a person whom petraeus had denounced days before he lied to the fbi himself. he said he knew the man had in a covert agent. he had not intended to do that. he is in jail for 30 months. the reason he gave the name was the person was involved in the torture program. it was a criminal activity that he believed should have been known.

these are judgments for the jury to look at. what holder's example shows, if you are a white high-level general still being consulted by the white house, you can even give tons of stuff, including covert material like secret war plans, all higher than i did you can be charged with a misdemeanor and get two years probation. if i had put up the pentagon papers, the history of our illegal, wrongly lied-into war in vietnam like iraq, i have no doubt at all i would be facing

115 years under holder and probably get it. host: we've got about 15 minutes left with daniel ellsberg. dylan is in south dakota. good morning. caller: i am a vietnam veteran. i appreciate everything you have done. you are a good american. we have a lot of whistleblowers in the v.a. that are getting discriminated against. i can't even understand our president. it's so ridiculous. what if there were whistleblowers in vietnam when they dropped all the agent orange and 10 years later we find out that we've got cancer. guest: the lack of whistleblowers is still to me at 84 startling and shocking. i can't understand it.

why there are not more people speak out. when you do, you risk punishment without various kinds of prosecution. only a tiny number of whistleblowers are indicted. a much larger number lose their access, their jobs, possibly their marriages with the loss of income. the sanctions quite apart from prosecution keep most mouths shut even when people know that others are being harmed by their not speaking out. it's surprising to me that there is not more than a handful or a few dozen who do. there is a very recent article in "the washington spectator" on the fact that nerve gas demolition in the gulf war

has unmistakably resulted in an enormous number of cancers and other problems ever since that have been blown away, saying you were not affected, it was enough to harm you, but too much time has elapsed. i urge you to look at that. i think it deserves a pulitzer prize. it depends on an investigative journalist seeking out sources from 20 years ago and giving information that is highly classified. why? because it was important to the iraqis? no, because it would confront the v.a. to take responsibility and start treating these people and that expense is enough to keep that secret. without investigative journalists, we don't have a democracy. without sources, you don't have investigative journalism.

we need more people willing to risk their jobs, their clearance, their good relations with their employees. that's a lot to ask, but not too much to ask patriotic americans who understand that the lives of other people are at risk and are endangered by their silence. host: will, good morning. caller: i am grateful to get to speak with you. i consider you a great american. more importantly, a great human being. i was 17 in 1969. i did serve after vietnam in the all-volunteer army. but my question has to do with this espionage act, and why has this not -- or has it been brought to the supreme court?

guest: the answer is only once the only one convicted by a jury trial. this was under reagan. he did appeal his case, but the supreme court did not hear it. the supreme court has never because most of the cases have been settled by plea bargains because prosecutors threaten very high sentences. each count is worth 10 years. i faced one of them as conspiracy. i faced 115 years altogether. totally unfair. that has to do with spying cases. the british official secrets act

, which they use in britain, has a maximum sentence per count of 24 months. far fairer if you want to have a democracy, they should not have an official secrets act and all. interestingly, the first american before me who is tried for giving secrets to americans was nathan hale, very familiar to me. young people don't know the name. he was george washington's spy during the revolutionary war who famously said to the british just before they hanged him, "i regret that i have but one life to give for my country." i think we see manning and

snowden like nathan hale. when i heard chelsea manning say i am ready to give this information about war crimes and torture, i want to get it out even if it means jail for life. when i read that, i thought i have waited 40 years to hear that. i have a very strong sense of identification with her. and likewise with edward snowden, who has spoken to reporters to talk about the background of what he has given to them and to further the conversation, he said, some things are worth dying for. and that's true. i agree with that, and i hope other people will be inspired by

that. news. it is time for one or two more calls. a couple of minutes left. steve, good morning. caller: good morning. it's a privilege to speak to you this morning. as i sat and listened to you you have made me broader in the aspect that when a whistleblower does have something he feels the country does need to know, there should be a just court where that person can go and present the case. i was not aware that was not available. by the same token, i must tell you that when i hear you say that you put snowden on the same level as nathan hale as a

patriot, i take pause with that. in my opinion, snowden betrayed his country. he hurt a lot of people. he gave us a bad reputation with a lot of countries. you yourself said in saying that even though obama goes after , more whistleblowers than most presidents have done, you would have to admit that the obama administration has been the least respected administration in the history of the country. then to put that in place and say of course he's going to have to go after more people about the level of disrespect that they show his administration -- guest: thank you what you said about me.

you have heard me say that i do identify with what i know so far about snowden very strongly. now, you have every right to have concluded from what you've heard about snowden from the government and elsewhere what you do, which she said he is a disreputable person who is harmed the country. the reason you have been able to form judgment on that is because we do have a good deal of information because snowden has chosen exile not in russia. he was stuck there when the president took away his passport. he was on his way to latin america. this was not the place he would have chosen. given that he is there, he has been able to give you a good deal of information which you do not agree with, in

contrast to chelsea manning whoe has not been able to give her case to the american people. i am open to hearing from the government specifics. you haven't heard any. they have been greatly challenged senators wyden and udall to give specifics and the government has given zero specifics as to what harm has been actually done. we await that. i have a personal opinion having talked to snowden in moscow. i have a very strong opinion of him, and i know his motive was to help this country and not to harm it. the last thing he wants to do is harm it. if he inadvertently did so, we await evidence of that. but so far, i do regard him without any question as a patriot, certainly as much as any i know, including nathan hale. host: we will let you get your

speech later this morning. daniel ellsberg is the author. you can follow him on twitter. we appreciate your time this morning. guest: thank you for the opportunity. >> on the next "washington journal," we look forward to the supreme court oral argument whether states can ban same-sex marriages and whether they can recognize same-sex marriages performed in other states. we will hear from brian brown and evan wolfson. after that, a reporter from the "l.a. times" will discuss the cases. "washington journal" is live every morning at 7:00 a.m. on

c-span, and you can join the calls with your comments on facebook and twitter. at the international consumer electronics show in las vegas, we spoke with a cardiologist about developments in medical technology and the future of medicine. >> you have to bring together these two very different organizations and cultures to get to that place where we need to be because as an academic health center, we will not build huge databases. that is what they will do, but they do not know about clinical processes or doing trials, discovering what works in biological systems. so we are working on these novel partitions, trying to attack this space. >> tonight :00 at 8:00 eastern on c-span2. >> you're watching c-span.

just about 8:00 here in east. an unusual time for the house to be coming in. they are coming and we think to file the budget conference report. that budget fiscal 2016 budget blueprint that was passed by the joint committees last week. we expect to see that in a very brief session coming up shortly. the main attention over the weekend in today, including today has been the upcoming cases tomorrow on same-sex marriage. looking at video that our camera crew shot today, at the supreme court holding. our coverage of those cases against outside the courtroom tomorrow at 10:00 a.m. eastern. we will have the sights and sounds of the people you're seeing there and more and possible briefings from attorneys and others involved in the cases as well. it is quite a long argument. there are two essential cases five states in four states and

two cases, and we will play all about getting at 4:00 p.m. eastern tomorrow, and that will be on c-span3. all that coming up on tomorrow. right now we take you to [captioning made possible by the national captioning institute, inc., in cooperation with the united states house of representatives. any use of the closed-captioned coverage of the house proceedings for political or commercial purposes is expressly prohibited by the u.s. house of representatives.] the speaker pro tempore: the house will be in order. the chair lays before the house a communication from the speaker. the clerk: the speaker's room washington, d.c.,, april 27 2015, i appoint steve weemack to act as speaker pro tempore signed john a. boehner. th