what is a little odd to me about the plaintiff's position in these cases is that it doesn't show much tolerance for democracies -- for democracies being a little bit slower than we would 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 stanyar: ourselves would have to be repealed.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 judge sutton: it was repealed.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 that no other group in society has to pass apparent competency test for they are allowed to marry. parents who have low incomes pirates -- parents with lower educational levels. there is no competency test that we do not bar them from marrying nor do we are them from having children. the argument has been raised

that the decision would intrude upon religious freedom but marriage is a civil institution. judgment for the plaintiff's will not require any change for religious institutions. they would be free to practice their sacraments, their rituals, their traditions as they see fit. just like the 10th circuit in the kitchen case, this court can specify that no religious clergy would be required to solemnize a marriage encounter mention of his or her own religious beliefs. religious conflict is not a basis for denying fundamental rights. if and when the case is presented to this court preventing a religious conflict, we have to balance constitutional rights. marguerite versus madison required the court to do this. you look at the hierarchy of rights, at the level of intrusion, it is great and it or would render it sufficient. we also alleged that immediate scrutiny applies here.

as gay and lesbian persons qualify for [inaudible] we renew that argument here and defer to the brief of the constitutional law professors that this would apply based on class. just briefly, we believe that the equality foundation can be revisited by the panel. this was -- there is an inconsistent decision inconsistent with the supreme court that requires modification. the inconsistent decision could be [inaudible] or it could be cleveland. -- cleburne. davis and 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 protection clause and the due process clause, if they knew that "time can blind us to certain truths and later generations will see that laws once thought necessary and proper serve, in fact, only to oppress." in our cases well we should remember that over the course of history on occasion, we as a society have lost her footing. and our humanity. eventually we write ourselves the u.s. constitution gives us a back on and alone star and it never changes society. it was written for all citizens for all times. it is simple it is genius, it is dynamic and most of all it remains. it can and must be interpreted to acknowledge a changing society. in an emerging recognition that

some laws do discriminate against the marginalized. an popular and in this case, the most vulnerable members of our society. we know better now. there is no reason to treat people this way. we ask that you affirm. >> thank you. do you have some rebuttal? >> our society has a mechanism for change. due process is not a mechanism for change but a mechanism preserving things that are deeply rooted in history so there is the amendment process that is available at the state level and that is -- there are six things on the ballot in 2012. there were six different measures. that goes to the point that it is a state that is conferred

[inaudible] windsor in discussing the dignity talked about it, that goes back to the point about democracy. you have heard that so the right process if there is going to be change in this area is not through the courts but through the people. for example, in maine, maine went one way and 2009 and the legislature passed same-sex marriage and people reversed course. judget daughtrey: do you realize a much of a shock it would be there? mr. lindstrom: [inaudible] judge daughtrey: there is the point to be made that the reason

that there has not been more in the way of analysis of discrimination against gay and lesbian people, it is because 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, they might have had the sheriff in the hall outside their bedroom trying to find out what they were doing and privacy in their own homes. mr. lindstrom: windsor recognizes that it is not deeply rooted. this court has -- judge dauhghtrey: marriage

was potentially criminal. does not make any difference at all russian mark then the supreme court told us that in fact, it should not be considered common all. that is where almost, i have heard people refer to it as a salami of action has occurred. it was back in that beginning of that time when we had the michigan marriage marriage amendment, was it not? i thought we cleared that up. mr. lindstrom: laurence was about due rights and published -- privacy. judge daughtrey: that condit could no longer be considered a crime and it could no longer jeopardize anyone engaged in that conduct with the prospect

of going to prison. mr. livestrong:lindstrom: this court has to look at the guidepost and the reason for that goes back to democracy in our system. how this is something -- we decide public policies and are owned -- on our own. it should not be to the courts. it seems particularly interesting here where does seem to be a particular trend that society is moving in. so this is one of the points but it recognizes the victory that is owing to the political --

this is an issue that it is rational to people to have continued to promote the idea in general. it is a good thing that children have a mother and father. we would ask you to recognize the fact and the decision taking this out of the people's hands undermines democracy. this is not an issue of goodwill. i think this is an issue reasonable people can disagree about area -- you can tell by all the voters in the six circuit who have weighed in on this issue. judge cook: thank you. >> the supreme court hears oral arguments tuesday. in two cases are guarding same-sex marriage.

the cases from michigan and ohio would determine whether states are required to issue marriage licenses to same-sex couples and whether states most recognized marriages performed in other states. beginning at 4 p.m. eastern, we will bring you the oral -- the audio for the oral arguments. next, another oral argument in a same-sex marriage case being reviewed by the supreme court on tuesday. this involves two separate consolidated cases with same-sex couples legally married in other states seeking to have their unions recognized in ohio. this oral argument is one hour. >> matt please the court. -- may it please the court.

based on the ohio cases involved , the state recognition of out-of-state same-sex marriage and in that respect [inaudible] but the fundamental question in all these cases is the same. that fundamental question is not whether ohio should recognize same-sex marriage, but who should make that important decision in public policy on behalf of the state area ohio voters -- the district court ignored its place within the hierarchy and constitutional democracy. i would like to begin with the bigger point. it is significant on this recognition case. in the prior discussion

[inaudible] was discussed. the analysis has it right when the judge talked about the rights have to be consistent [inaudible] a result that does not lead to same-sex marriage and the plaintiffs have not proffered any grounds on which to distinguish the right to recognition. because of that, they made the same approach with respect to baker as the other cases. doctrinal deponents have superseded baker. i think i heard the question. >> that is not quite true. didn't judge black point out that there is [inaudible] doesn't seem to equally enforce this prohibition on out-of-state marriages but are consistent

with ohio requirements for marriage licenses? i did suggest that this -- the way that the courts have gone about it is to distinguish between why they call void and voidable marriages. void marriages, those marriages aren't what violate what be deemed a common-law marriage. judge daughtrey: could you say that again? mr. murphy: if the out-of-state marriage is only voidable than we would recognize it here even if it is unlawful here. that is the first cousin case. the ohio courts did take to mean

it did not recognize common-law and it would not be recognized now. that was a common-law marriage. the court established the role that it was void and the court would not recognize it. that void versus voidable is the distinction, not the same-sex marriage versus opposite sex marriage. another distinction they make is marriage recognition. i think -- i do not think you need to get to the analysis because under the supreme court's case and this court's case, when you have a specific provision directly on point a

specific textual source of protection, you do not get that analysis. i think that is applicable here. the full faith and credit clause is the clause where one state has to recognize and other states laws -- and other states laws. -- another state's laws. the analogy we make is the court refused to engage in any kind of practice analysis. it is a [inaudible] we are making the same point here where due process is not [inaudible] all this goes back to the notion that all the rationale tries to

establish baker falls flat. >> what is your assessment of the phrase doctrinal development? mr. murphy: my interpretation is if you have a case that was overruled, they do not [inaudible] because the supreme court [inaudible] that is the type of doctrinal development that is necessary in order to implicate that provision and that is what this court has already held. the court essentially said that the summary dismissal and regular opinions should have the same value. i think that means that summary dismissals as every bit as regular opinions trigger the

agostini and rodriguez role. -- rule. to suggest that is for regular decisions. judge daughtrey: i there some opinions that suggest they do not hold that one of those dismissals like this 11 word long and we are talking about -- might have some kind of binding effect on the court from which it came but not against the world. mr. murphy: i think the distinction that is drawn is the binding effect that it has on the lower courts just as the binding effect it has on the supreme court. the supreme court said it has less binding effect in the supreme court but with respect to both courts, i think -- judge daughtrey: that is the -- the this came out of the

minnesota supreme court, did it not? mr. murphy: is that [inaudible] i may be a little confused. you have to address standing because jurisdictional if without that party is not a case. if you have other parties, one doesn't have to address it. mr. murphy: i think you do. the rule that you are talking about only applies when they are seeking the same relief. the relief that the plaintiff sought was as applied. i think according to the nra case, it says that is the general role that when they are

not seeking identical claims they would have to -- >> one claim, you cannot attack more broadly. >> the injunction would be more forward-looking. with respect to that i think it is pretty straightforward. there is the third-party standing doctrine that there has to be a close relationship. while skate cash i think that is on [inaudible]

i would hope that a lawyer's relationship with the client -- judge daughtrey: those are people that are [inaudible] the future clients. does he have mr. -- current clients and he is a member of the class and his business is primarily dealing with the class that is at issue as to burial, funerals and burial. mr. murphy: he has not identified other specific clients other than [inaudible] it is the future client world. the response to coffee -- kowalski is, call ski itself distinguished craig as being

about the transaction between the two parties is itself illegal. in that case, [inaudible] to minors. there was no impediment to reaching these issues. it is essentially the same issue in the kentucky cases. either by upholding or invalidating then what do we care about? you have the decision and barring a meaningful distinction between the state and nonrecognition laws, it would make a difference. >> the state would either, depending on what the opinion would say.

i think that is within the perspective of these cases. that is the easiest way out with respect to third party standing. the other factor is a hindrance. these are all over the country right now. there is not too much of a hindrance to the gay and lesbian community asserting a right. >> you get the sense that they are measuring a trajectory. and it is fair to say to -- that the supreme court opinion trajectory favors the plaintiffs. it is fair to say that those cases do not necessarily answer the question here. it just does.

from -- to windsor, it is true. it is true they did not reach today's issue. what is the lower court to do with that? >> i think this is the adam's case. the judge [inaudible] this was a get -- good analysis as to why this type of animus doctrine cannot apply here. that is -- and windsor, it was an unusual federal intrusion. it was an expanse of elimination . that cannot explain the

traditional definition of marriage which has existed since the founding of the states. i cannot -- it cannot explain your -- either. they were explained primarily by democracy. the citizens and the general assembly worrying that the fundamental question of public policy would be taken from them either by massachusetts court or by the ohio supreme court. and it is a rational response to that concern retaining the true definition of marriage. judge holmes had it right in suggesting that in both those cases what they are looking at is -- when there is facially

unprecedented laws, it raised a judicial eyebrow to apply this type of animus doctrine. i do not think that concern with -- is present. there is nothing unusual about following the usual course. a distinct rational basis and the recognition cases is uniformity. having one position on the fundamental issue. the laws cannot be easily evaded. that uniform rationale also explains -- >> what implementation problems arise? >> i think it would require, it

would certainly require a legislative response. maybe i should be changed to parent 1 and parent 2. i would imagine this would happen throughout the ohio revised code where there is reference to husbands and wives. i certainly do think that the general assembly would have to do a pretty thorough read of the ohio revised code to determine what needs to be updated in light of what is her constitutional developments arise. you have to use spouse. that is all that would have to change. >> the pragmatic question i did

think there is no doubt that it would require any laws being passed. >> in addition to the ones already mentioned the two concrete ones with respect to out-of-state recognition democracy, number one, and concerns about massachusetts controlling ohio. i think proceeding with caution strikes me as a rational response. it is a variation on the pacing

point. let's except for the sake of argument it is. it shows it cannot last forever. how does the court and command that? you say now the get the benefit of the doubt? how did this work? >> they have all been standards. they look to how society has changed over the years. i think you look to all the facts. mr. murphy: the way you show the pacing point, you trigger some number of states that recognize same-sex marriage and that -- at that point -- judge sutton: the law is always about drying lines. mr. murphy: i do not think we are there.

judge daughtrey: i do not know how many states there are in the 10th cert -- circuit. i do not know how many more states there are and if there are three or four, that would be 24 states by your reckoning which is a majority. and they you have almost -- you have almost 30. hypothetically. it is hypothetical. mr. murphy: the concept itself is too new. we are looking at -- judge daughtrey: the fourth circuit came down with an opinion that affected virginia. winter guess be that that would apply in north carolina, south carolina and who else is there

west virginia? mr. murphy: i do not think you can pick the states where the courts have gotten involved rather than through democratic means. judge daughtrey: i am telling you i am counting. mr. murphy: the way to count the states is how they have adopted that type of change. if you take that number --judge daughtrey: judge daughtrey: the courts have already decided to question. the supreme court is not going to knock it sideways. they can count too, and it is my feeling they probably do look at the polls. mr. murphy: maybe the counting point, you do not necessarily count all the states that are really one way particularly if

there is an appeal. you do count the states covered by those [inaudible] where the state attorney general or state governor has decided not to appeal. in those states, it is over. that is the number around 20 or 21. mr. murphy: the majority of the states are retaining a traditional definition of marriage. [inaudible] changes in marriage have taken decades to determine whether the effects of the change, it is too early to tell on the first state to recognize marriage. judge daughtrey: what do you think he has been writing the

opinion. what would it look like? what would he have said? mr. murphy: he makes the distinction he does not think that the federal government's decision with respect -- was based on animus. i think this is a different question. i think the faint -- the same focus was the unusual nature of the federal intrusion into marriage and that is the case with ohio retaining its traditional definition of marriage. judge daughtrey: >> when we think about the ways in which states adapt to judging -- changing mores, it is the local aspects.

who may have asked what their views are and use the democratic process to try to move things along locally and statewide. i do not think we are talking about those month -- about those so much. mr. murphy: our conscious approach to a change in marriage when it has only been 10 years -- any voter in ohio may have had that rationale in 2004 when they voted for this law. judson: you -- would you concede or take on the case? mr. murphy: michigan's response was interesting with respect to

-- uncertainty, uncertain facts that mean that the state loses. the court said we have these facts. we do not know whether the perception is important not. we will defer to the legislative branches. the same could be undertaken here. i think -- the court communicated that this has to be consistent with history and practices of the people. i think that if you think that heightened gurney makes the difference, i think the town of greece is a rational indication.

because the traditional definition of marriage has been with this country since its founding. the last thing i will briefly talk about is the full flavor than credit claim. the basic analogy there is full faith and credit caused -- clause claims -- it is like the supremacy clause. it is a rule that says when the state has a claim that you should go to the state of judgment preclusion lot rather than the law -- the state where the suit is filed. if there is no questions on that area -- questions on that. judge daughtrey: do you have any knowledge of common years it was from the start of the campaign until the night of the 19th amendment, when women achieved

the right to vote? are you familiar? if i told you that it took 78 years crossing the desert back and forth, trying to achieve it through the democratic process would you be surprised? mr. murphy: not with the united states. judge daughtrey: i am talking about going into every state in the country, every city, every school board election, for 78 years and trying to get enough going to convince the legislatures to adopt or to 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: there is very difficult. judge daughtrey: you want to do this democratically, state-by-state, legislator by legislator in a civil government by minas will government as far as i know, and it does not always work area do does not always work. 78 years to get women just the right to go to the polls and vote. i decide would like to know that in case you're ever on "jeopardy." [laughter] judge sutton: you can respond to that. you have five minutes to think about rebuttal. mr. gerhardstein: three babies

have been born to the henry plaintiffs in the last two months. one adoption has been finalized a few months earlier for another date -- plaintiff couple. all for same-sex couples, all were married in one of those 2221 states where the issue is done. marriage -- that marriage for same-sex couple -- couples is available. they refuse to these couples and their children recognition of parentage. so instead, ohio issues of birth certificate that names only one member of each couple as the parent and denies recognition as a parent to the other area that is a real serious harm. what is says to the surviving spouses, you must accept the 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 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 recommend to you that the amicus brief, there is -- 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 and the child was removed from a situation because the judge thought, oh, living in an interracial family that creates too much tension. the judge wasack exceeding to the prejudice of others. don't let us pass laws that implement prejudice of others.

in order to determine whether this measure targeting this narrow group of people, the same people targeted in windsor, it's constitutional. history of discrimination, this history of targeting, even in the murmureasure measure' description. not only are we going to define marriage to include other than a man and woman, it says no civil union, that nothing that aapproximates marriage and says get away from us as far as you can. and those are the types of things that the supreme court looks at when it'se -- even if wraour doing rational basis. these are the factors. they all line up here to say this deserves the same special

consideration that the court gave the federal measure in windsor. when you do that especially in light of the role of the federal courts to prevent states from denying liberty to people, to be the backstop it's appropriate to act now. was it before? i don't know. we weren't in this case before. i'll 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. they don't think about the harm. the couples that plaintiff's in this case three of them were impregnated by artificial

insemination so. there is no need to deal with fathers rights and they 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 imphre mentation is easily answered. i don't think that that's a serious impediment implementing marriage recognition as it would be here. the difference is huge in this case. you've got the non-birth mother's of these three babies saying i'm a parent, sue me if my kid doesn't get my support. call me if i'm kid doesn't show up for school, prosecute me if

there's next of my kid and ohio is saying no. if you're an opposite sex kid then you'll have two parents. that's a super harm to these children and that's part of why the matter is urgent. 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. windsor talked 11 separate times about the dignity that was owed to same sex couples. in that opinion it said 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 they should get both parents. the district court was correct when it said that the birth certificate is the basic currency by which parents can freely exercise those protected parental rights and responsibilities and the only commonly conferred humanly formed recognized that establishes identity, parentage and citizenship and 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 to grave and everything in between. without recognition these couples are denied tax benefits and other benefits and these are benefits that are taken for granted by different sex couples. i've been married to the same woman for 42 years and the law is rigged in my favor because i get tax benefits and other benefits and if -- and that's fair in a sense to rig it in favor of marriage because we pay our taxes and buy our house and we take care of our kids and put

less demands and same-sex couples deserve a piece of that. it's important. 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. 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 ill

also cause the death certificates of william yves and john arthur to reflect their marriages and allow those men to rest in peace. thank you. >> thank you. mr. murphy i think you have a few minutes here. >> isn't this case entirely dependant on the other case, i think that's correct. and whether they're uphold holding the traditional marriage. i don't hear any basis for out of state recognition. that was the first and the that was made with substantive due process right recognizing these out of state marriages but that

doesn't take on the notion that ignores the equally long standing -- >> but couldn't we say if we wanted to that ohio is perfectly free to refuse to recognize or issue people who get into common law marriages within the state. >> it's a notion of what ohio's public policy is. i think no question ohio would recognize some marriages that would not be lawful in ohio and i think ohio has always retained the exception for those marriage that's violate public policy and

it's public policy deposition long predates this debate. i don't think you can say the exception is tied -- that there's no deeply rooted notions to the exception. with respect to windsor, i can completely disagree that it played no part in the ruling. of course it wasn't a structural constitution case. and that federal rationale is entirely gone. it was that unusual law that triggered the scrutiny under the equal protection clause and you can't say that for these types of laws for the reasons 1 so the

public policy exception can't be explained -- >> it's not recognizing same sex marriages. >> the content of which would possibly have been illegal and a crime in ohio for most of that time that you're talking about. and there's an analysis that's

literally impossible. you can can't gauge into the mind of everybody who voted yes for proposition one. that's distinguishable from rumor and windsor because the court in those cases didn't engage in the intent and said the laws and that's not the case here. so if there is no further questions we ask the court to reverse the district court in these two cases. >> can we go back to the 19th century history that we were talking about. it occurred to me after you sat down that you thought i was talking about when they were crisscrossing the country trying get to an amendment. 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 and they did it state by state by state. 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 were the constitution amendment was required. i wanted us not to be talking past each other. >> thank you mr. murphy. we appreciate your argument.

the case will be submitted. >> the supreme court hears oral argue you'lls in two cases regarding same sex marriage. the cases from michigan and ohio will determine whether they're required to issue marriage licenses to same sex couples and lawful same sex marriages in other states. we'll be live outside of the court and possible comments from the participants beginning at 10:00 a.m. eastern and 4:00 p.m. we'll bring you the audio of the oral arguments. that's live on our companion network c-span3. >> during this month c-span is please to present the winning entries in this year's documentary competition. it's c-span's annual competition that encourages students to think critically. they were asked to based on the theme three branchs and you.

by one of the three muches of government has effect the them or their community. she is one of our prize winners. her entry focused on federal funding for natural resource management.

today maybe there's half a foot which means most of the riverbed is dry. >> it also impacts the tulsa community aesthetically recreationally and economically. >> it's important. the one thing people forget about when they're talking about putting together a program to encourage industry to move to other places is the beauty 1k3 liveability. they want to move where they can enjoy life. it's something often overlooked when we look at how can we encourage people who are

offering jobs. >> they're are all kinds of studies being done. people want to work and to live where people have something to do. >> the arkansas river is a big economic stimulant for us. people love to sit outside. the mood and ambiance completes the picture. >> we want to feel the sunday and air and we want tock know if it's hot or cold. >> healthy lifestyles and active population in the community is valuable. when we say that these parks are along the arkansas river people expect to see water. >> over the years many people have put the blame of the lack of water in the arkansas city on the army core of engineers. >> i was a manager for ten years at keystone and my friends from tulsa would kid me and say, why don't you put in water in the river. i always try to remind you we

tried to make releases that are going to minimize negative impacts. >> they have authorized purposes of flood control, water supply, navigation fish and wildlife and recreation. >> the primary reason why a lot of lakes were constructed were for blood risk management. so all the other things are important. but whenever we have to store or release flood waters that's going to be a priority. >> we must move very carefully very thoughtfully and deliberately as we look to the prospects of of trying to put water in the river. >> it would have many positive impacts. many of these benefits are made possible through the reform and development act which gives the u.s. army core of engineers the flexibility to work with non

federal entities to help manage products products. >> first bill is the water resources reform and development act. it will put americans to work modernizing our water infrastructure and restoring the most vital ecosystems. >> the development act gives the core of engineers the authority to look out for flood control and other things having to do with the waterways. i'm an advocate because i see the opportunities we have in tulsa that we're not doing. >> the current determiner of water levels throughout the community is keystone. the core of engineers must consider how much they let out to ensure people's safety and well being and account for the wildlife of the area and prevent flooding and ensure hydro power production. their releases are often minimal. when the downstream portions of the river don't receive water

large sand banks welcome visible. it has become increasingly ineffective with passing years. in addition to the necessary damn repairs they're going to put in low water damns in the stretch of the river. >> the development of damns is long term essential for people to be able to be on the water. >> this would open up the river to a new recreational fan base. where will the funding come from? >> this funding can be done first of all, by the increase in the value of the land. they haven't tried that yet, but it can have a part in it. then the funding coming from the benefactors. >> ub fortunately they'll not

fund the repair. the funding is coming from the federal and local government in addition to local benefactors. much of the current philanthropy is construction of the gathering place which is one of the largest public parks in the united states. we need to develop and pass legislation with all the benefits of the water resources reform and development act but that will also allocate funding for community projects. as businesses grow there will be a bigger tax base which means more money for local state and federal government. so it's possible that could possibly pay for itself. >> i travel around. i see other communities that have a river resource that runs through the town. and how other communities are

able to capture that and utilize that resource and i would very much like to have that as an option here. >> to watch all the videos and to learn more about our competition go to c-span.org and click on student cam and tell us what you think about the issue this student addressed on facebook and twitter. >> remarkable partnerships and iconic women and their stories in first ladies, the book. >> she did save the portrait of washington which was one of the things that endeared her to the entire nation. >> whoever could find where francis was staying, what she was wearing, what she was doing and who she was seeing, that was going to help sell papers. >> she takes over a radio station and starts running it. how do you do that? and she did it. >> she exerted enormous

influences because she would move a mountain to make sure her husband was protected. >> first ladies, now a book. looking inside the personal life of every theirsfirst lady in american history. learn about their lives, ambitions and unique partnerships with their presidential spoupbsz presidential and filled with fascinating women. sometimes at a great personal cost changing history. c-span's "first ladies" is illuminating and inspiring read. now available as a hard cover or e-book through your favorite bookstore or online book seller. next constitutional law attorneys preview the supreme court same sex marriage oral argument. speaks include constitutional

law attorney paul smith. he argued laurence versus taxes before the supreme court, 2003 case challenging an anti-sodomy law that was on the books in 13 states. this discussion is an hour and 20 minutes. >> good afternoon, everybody. i would like to welcome you to our briefing on the marriage equality cases. i'm caroline fredrickson. i'm the president of the american constitutions society. i'd like to thank for all the firm has done to promote lbgt quality. just one of the many ways that its recognized is it's 100% ranking on the human rights corporate quality index for over

ten years. congratulations for being such a force for justice in the united states. for those of you who are not familiar with the american constitutions society, we are a national network of lawyers and law students, that the law should be a force to improve the lives of all people. a cs works for positive change and vitally important legal and constitutional questions and our mission to ensure fundamental principals of human dignity and rights and liberties and enjoy their place in american law. many view the fight for lbgt quality is one of this generation's most impressive struggles. they worked to bring the realities of discrimination and inequality that effect this community to the forefront of

the national dialogue. we continue this work with our focus on marriage equality. in the fight for nationwide marriage equality we've seen remarkable success. 37 states and the district of columbia now recognize same sex i marriage and poised to rule on the constitutionalt on same sex marriage. the experts we've gathered here will discuss the history of the fight for marriage equality from bowers versus hardwick to laurence versus texas and united states versus windsor. what are the ways in which the court could decide this monumental case? what will the potential outcomes mean for lbgt rights in other context?

here to lead the discussion on these and other important questions is amy. she's a partner with goldstein and russell here in d.c. where she serves as counsel and co-counsel. she's also editor of an award winning website covering the supreme court and author of the regular column about the court and good friend to acs. please welcome amy. >> i start by introducing our panel of experts and we'll spend about an hour with them and then we'll try to leave plenty of time somewhere between 25 and 30 minutes of questions. i'll keep our panelists short and give them plenty of them of

accumulated wisdom. they're in alphabetical order. steve sanders is a professor. he teaches constitutional law there and spent four years in private practice before becoming a law professor at appellate group. he managed to squeeze in an argument of his own at the supreme court. in this roundsame sex marriage cases over 200,000 people who joined the brief, it's called the people's brief. on my right is paul smith. he's a partner here at jenner. he has argued that the supreme court on everything from the first amendment to voting rights and most recently on the clean air act but delighted to have him here today.

if there's great talking points memo you can get the link in the round-up today but he is the lawyer who set the stage for marriage equality with his victory in 2003. and on my far right, she's the leader focused on federal state and local policies and coordinating the efforts on lbgt issues among other things. great to have all of you here today. we'll start with paul -- we'll start by looking back and talk about the cases and then we'll look forward at what the cases might mean for the future. so we'll start with paul who is going to take us all the way back to 1972 and baker versus nelson and talk a little bit about that case and how he got from baker versus nelson to the

marriage act in the clinton administration. >> a lot of people ask me how did we get to it so quickly and reality is we've been working so hard for a very long time f you want a starting point is way back in '72 or so in which the court was asked to recognize a christ of a same-sex couple to marry and they dismissed the appeal, so it was a one line rejection of the claim. you about this of course clear at a time when we were not in the stone age is at least the there was no recognition of the fundamental right to marry. nobody thought pilot relevant to a same-sex couple. most states criminalized same-sex relationship. so this was not a surprising outcome. it was along step-by-step struggle to get from here to there.

for much of that period of time focused not only on the recognition of the relationship and marriage. at the area to meeting out and open lines in the community. -- a barrier to living out and open life in the community. after baker versus nelson, most people know that was unfortunately rejected by the court. in fairly harsh opinion said that it was suspicious to claim that the constitution protected two men from having engaged in sexual intimacy in the privacy of a home. the next phase was trying to deal with going step-by-step and state by state to try to make the progress eliminating these laws. which was reasonably successful,

after a large case that i argued. by 2003, we finally got rid of the sodomy problem. the argument could no longer be made that you can't argue constitutional rights because they can't be put in jail. they got rid of that. and they did it in a important way for marriage equality. it did two useful thing that you can no longer argue discrimination against gays and lesbians. we will recognize it is not up to the government to recognize who you should spend your life with or engage in sexual intimacy with. the other blue made was to recognize that gay couples had the same kind of lifelong

relationships as everybody else and deserve respect. if you take those two elements and put them together, the argument for marriage equality is strong. justice scalia said so at the time in his dissent. you could say for the other shoe to drop, this is not an easy process either. at that point, the movement went back to the state-by-state strategy used to chip away at the sodomy laws. first very successfully in massachusetts in the goodridge case, a few months after lawrence in 2003. and i'm sure you all remember, quite a remarkable national focus on the marriage issue out of the blue. but then there was a great chasm of failure to move forward. the next state in which success was had in terms of recognizing the right to marry of same-sex

couples was not until 2008. in between there were something like 25 states. constitutional amendments to prevent marriage equality with other state constitutions and losses in places like new york and washington and maryland. but eventually things started to move unmarried. we had victories in places like iowa california, although that was overturned in prop 8. the next decision made by the movement lawyers for donating these things was, we should go back to the supreme court. but there he was to go to the supreme court on the challenge of the marriage act, not the right to marry. so in we filed the challenge 2009 against the act. the law that said, if you are married in massachusetts or wherever, the federal government will not treat you as a couple.

the constitutional arguments were very strong. in that case, it took a while to get on the filing in 2009 to the supreme court. we had a different case going up there. the windsor case ends up there in 2013. during that same time, we had the challenge to prop eight filed in california. those two cases wound their way up simultaneously culminating on arguments in the supreme court two years ago. that is the brief history from 1972 to 2013. caroline frederickson: you mentioned the prop 8 case. and they decided not to move forward. but the decision to file was not

necessarily well received throughout the movement. thinking that it was too soon? paul m. smith: right, the groups have been working together for 20 years at that point. first on the sodomy issue and then on the marriage issue erred --. they got with only one state two states having marriage equality was too soon to ask that supreme court to nationalize it. on the other hand, the fact that proposition 8 had been overruled, it meant for people in california there was no other option than a federal claim. that was the dilemma everyone faced in 2009 after the 2008 election. there was a disagreement about whether to go ahead and ask the supreme court to recognize marriage equality in that year. the movement was still aware of problems caused by bowers versus hardwick. into the generation to get rid

of that decision. when you lose in the court, it can make things considerably worse than if you had never gone there in the first place. the disagreement over that issue, while emotional at the time has gone away. people have worked effectively at litigating the case. the experts were prepared. i think there is also a sense now that somebody was going to bring that challenging proposition eight, at least it was done by the really high quality legal team put together. those issues are behind us, fortunately. caroline frederickson: before we move on, let's move on to sarah.

she was the director of the human rights campaign. you were also on the ground in a lot of these times. sarah warbelow: that's right. we were trying to have a dual strategy. how do we then marriage equality in states that don't have constitutional amendments, where there are legislatures finally to having conversations. new hampshire, maryland washington state. at the same time, fighting back against constitutional amendments. we were happy -- having an interesting trajectory. disproportionately, as we work the state legislatures, we were finding success. many people have an unrealistic expectation of how quickly legislation moves as a result of those successes. within two state sessions,

marriage equality was passing. simultaneously, we had states running in place bans on same-sex couples being able to marry. the only time we had truly effectively prohibited a ban on same-sex couples marrying was in minnesota in 2012. that was the same year in which people voted in maryland and maine, and washington state to affirmatively granted same-sex couples the right to marry. that same year we also lost a constitutional amendment in north carolina. it really was a very tricky balance, determining where to put resources. we always knew that the supreme court would have to be the final arbiter of this decision. caroline frederickson: let's

bring us back to 2013. the prop 8 case and windsor. not so much to rehash old history, but the arguments in justice kennedy's arguments about being revised. paul m. smith: the decision we ultimately got ended up vindicating those people who thought this was the right move. we got a very eloquent decision by justice kennedy. while talking about states rights, ultimately ended up ruling the 14th amendment doesn't allow the federal government to distinguish between two classes of married couples. that kind of disrespect that it showed for one group of those couples was simply intolerable under the 14th amendment obviously there is a great deal of language, but it proved very

useful in the litigation that came since. the sears people had about the case -- fears people have and the hopes, none of those came to be. it was somewhat of a fizzle in the outcome. there was never a pellet jurisdiction in the case -- ap pellate jurisdiction in the case. the reason being is because the california attorney general and california governor refused to amend proposition eight. while we had a great deal of discussion and a side trip to california supreme court ultimately the decision of the supreme court was that people didn't appeal to say private individuals who had campaigned to put proposition eight on the ballot did not have standing to represent the state of california, and did not have standing in their own right therefore there was nobody for the court to have constitutional

standing to defend proposition eight. there was nothing for them to decide. the effective proposition eight was not to create new laws. it did however because judge walker's decision was left in place, means that proposition eight was no more and we suddenly had marriage equality in the state of california heard in that sense it was a tremendous victory. the largest state in the country had marriage equality. that added a lot to the movement in that outcome. then, of course, the federal courts have gotten very much involved in a way that they were not. people started filing federal lawsuits all over the country. the data windsor case came down and the defense of marriage act was no more, everybody decided we know what the next step is going to be.

a supreme court decision. most people thought it would take more than two years. it started being filed left and right and center. the federal courts saw the same thing. they figured out where this was going. we had a remarkable string of victories in federal courts starting in 2013 and through 2014. something like 21 decisions in a row. and then federal circuits all affirmed those. it looked like we might have to wait for a supreme court case . things did eventually change. sarah warbelow: there were governors and attorney general's not defending the state bans. where you involved in theat? sarah warbelow:: we made the

argument that bans were clearly unconstitutional. the state attorney general does not have to defend a lawsuit with the law in question is a clear violation of the federal constitution. a handful of attorney general's accepted that proposition. including california pennsylvania oregon, virginia which came about as a rather surprising election in which democrats swept the lieutenant governor and attorney general seat. the attorney general one by a very small number of votes. but was in a position to really analyze what would happen. each of the attorney general's really had to dig in and make an assessment about what would happen if they refused to defend. the laws from state to state can

vary dramatically. some states have clear mechanisms for who gets to defend a lawsuit. if the attorney general refuses to dispute. while others are absolutely silent on the matter. it really drew attention from the general populace. they started to pay attention to attorney generals for the first time ever in a new way. they saw what type of power those positions can wield. amy howe: that brings us to october of next year. -- last year. there were 21 or 22 decisions in a row on same-sex marriage. the supreme court comes back and has all these decisions were you surprised? paul m. smith: totally.

we thought the court was going to grant one of those petitions. there were petitions in the 10th and fourth circuits. i was on the phone that sunday with one reporter, hopefully not somebody in the room. it just seems like all of these federal courts were holding these state laws unconstitutional, and that is almost always a prescription for a grand court. to have that volume thrown out without having the supreme court saying that was the right direction of the constitution, seemed like they would have to weigh in. for whatever reason they decided they would wait until a split. it turns out they did not have to wait very long. it was an interesting moment.

steve sanders: when the court got around to it in january, it immediately raised a few eyebrows when it rewrote questions. does the 14th amendment require states to license same-sex marriages? another issue i think often has been forgotten or at least underplayed in this whole issue the second question, does the 14th amendment require a state to recognize that a marriage that has been licensed and performed in another state. presumably if the court answers yes on the first, the second is irrelevant. if they cannot deny same-sex

marriage, it cannot deny recognition. it raises the possibility that the court might say no on the first and have to decide the second question. i among others, floated the possibility. this might have something to do with some sort of conniving involving justice kennedy and maybe the chief. that would be a modest approach, a federalism compromise that might appeal to justice kennedy. the idea that we won't force states to license same-sex marriages that we will say they can't deny recognition to marriages sister states have performed. it could be a much more innocent explanation. it could be of the four cases coming out of the circuit, two of them just involve couples seeking recognition of in -- existing marriages and to involve couples actually seeking to get married. we will see how that plays out. and everyone of these cases there have been two

constitutional questions presented. equal protection clause theory is the denial of same-sex marriage that they couples are a violation of people protection and if so, what is the appropriate standard of review? secondly, due process clause argument. it's been married a fundamental right, and if so, how does it apply to same-sex couples? is it a different fundamental right, or is it simply a matter of fundamental rights to marriage, and who gets access to those fundamental rights and who doesn't. those are the issues that the parties in one way or another addressed. i've read all the briefs, i have to say i think the quality of the briefing by varies. -- varies. these are not briefs that were written by law professors and so -- that may be a good thing. [laughter] they are not as rigorous as we would like to have one more teaching our were teaching our

-- teaching our students but it's also fair to say that in many cases they weren't written by or meet the standards of the supreme court briefs. that's not say they are badly done, is just to say that they somewhat vary. the petitioners in their briefs all emphasize a mix of doctrine, major cases under both due process and equal protection clauses. personal stories about their clients and their parties, appeals to justice kennedy which are an inevitable feature in any case like this. and preemptive strikes making their response brief. and arguments that the sixth circuit had made in its decision. the respondent's briefs, i emphasized a mix of arguments centered around caution go slow, it is a legitimate thing for a state not to be forced to plunge ahead into the unknown

consequences of legalizing same-sex marriage and all that means for children and other unknown factors. there are certainly federalism arguments attempting to distinguish windsor, for as much power windsor had in getting at here, the state says windsor was really a federalism decision. everything the court said about the equal dignity of same-sex marriages is premised on the idea that it is state that choose whether or not to confront that dignity. there are arguments that direct democracy, that all of these state bans came about through people. i think that is problematic. these amendments were intended to set off the debate and prevent future democracy --

democratic action, legislative action from revisiting the issue. when you lock something away in an amendment, you are attempting to decipher all time. and then there is the argument for responsible creation. they really can't seem to be making arguments based on morality or tradition for its own sake. there's no indication in any briefs that the states are saying that gay people make that parents or are dangerous. what they say are that states national basis, is that it wants to encourage straight people have the possibility of having accidentally pregnant and producing babies to get married. it's reserving marriage for that purpose of encouraging responsible procreation. of course there is no evidence of this argument ever having been made in any debates. it really emerged in 1990, in

the writings of people like for dell, a professor at brigham young one religious oppositions had to come up with something that sounded reasonable and possible as the state interest yet did not seem to be disparaging gay people are making moral judgments about gay people. i think i'll leave it at that and take specific questions. amy howe: paul you might want to , weigh-in on the windsor argument. another case they rely on is the decision from last term on whether or not they could ban affirmative action at a public university. paul m. smith: as you very often see in cases about whether the constitution ought to be interpreted to overturn state laws the people who say no

saying we should let the people decide. and the people say yes, say the constitution. those are the terms. there is a great deal of discussion in the debates. the windsor case does give the states a great deal of ammunition. there is a long first section about family law is reserved the states and the federal government should not condone or interfere. the federal government said -- should just accept whatever point they make. there is a great deal of language there that can be pointed to. the other case, the case about proctor vote to ban affirmative

action in education in michigan, which had been held unconstitutional by lower courts help constitutional by supreme court. especially how the people have the right to use democratic power. that vote ought to be respected. that was the case justice kennedy joined the majority in. steve sanders: i'm just going to say, the decision has i think a 650 word passage of justice kennedy purple prose about the virtues of direct democracy and edison's coming together to think about and resolve difficult issues together. that is being quoted back to him in some briefs and legal commentary about this issue. i think a couple of things remember justice kennedy is also the same person who in 1986 also involving the constitutional amendment where people came together and talked,

had no difficulty whatsoever saying it smacked of animus. in justice kennedy's passage there is not a single citation to any case law. all of the other cases discussed , race cases all say just because something was decided through the democratic process does not mean we given a passport look at it any less critically. i have always of that passage of justice kennedy wrestling with his attitudes of race. paul m. smith: a big believer in popular democracy. it should be standing for the proponents of the referendum to appeal, because otherwise the officials of california, the very people who were supposed to be bypassed by this popular vote have the power by not appealing

to popular will. he is in dissent even when it was clear he was happy not to. he has that side. on the other hand, it seems to be the popular vote, argument is weak in the situation where the majority vote say we can keep getting more varied and you can't. it just doesn't seem like an appealing argument. steve sanders: and it doesn't bode in a way to make law for the moment just majority rules and statutes. these are constitutional amendments. attempts to lock the issue up and prevent future legislature or state courts from ever dealing with the issue. if people change their minds they have to go to an extremely long and asked the process. -- extensive process. this is not about to democracy. people about it, but in a way that was intended to settle the issue to make sure it did not come back. paul m. smith: maybe a little bit more on the other argument.

the argument that the reason why it limits marriage to opposite sex is they are the only ones who could get accidentally pregnant. the only ones who can become accidentally pregnant, therefore have to have marriage as a special thing for them to channel been into it. this argument has never seemed persuasive. there's a whole variety of reasons why. it is an impoverished view of what marriage is about just a device to get married when they have kids. marriage is about commitment support, love, a lot of other things you'd it can be that. the idea that marriage is just

about this is wrong. the second thing that is odd children are children, regardless. the results of this limitation of marriage to one group of couples and not the other is you have all these children with unmarried parents. if that is your concern, why don't you let everybody get married? it is bizarre. they were reduced to hinting at it, but they could never quite say what the problem was when same-sex parents get married is other people will not be married because the institution will somehow be tainted they don't say it out loud, but does anybody really believe that? that people will stop getting married? the only people who want to be getting married are gay people. [laughter] amy howe: i think what this also --steve sanders: i think this

also gets to the standard of review. they go through great lengths to say, this may be overinclusive underinclusive, post hoc. it may not be coherent. doesn't have to be perfect but just something the legislator could review and so i think as long of states are pressing for a most deferential process of review, review, they can't come up with the flimsiest rationale for their review but i don't think that will happen. if you look at the kind of analysis the court did even if you put a label on it, the court has never applied the economic on a rational basis. we demand to know what the relationship is. >> align is being drawn and it's