aaron linstrom: i agree, when you focus on fundamental rights, history is the focus. and i guess the preliminary question, is why is the state interested in marriage in the first place? why is the state interested in emotional connections between people? we discussed this in our brief. state doesn't have interest in regulating friendships, it doesn't regulate how many people can be in a friendship or how long a friendship has to exist. the thing that changes and the reason state has interest in marriage is because marriage leads to children, hence bringing new children into society in houses ideas going to make sure they are cared war. so it is rational for the state to have an interest in promoting marriage so that it is more likely a child will have both a mother and a father and will have the benefits of having both

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

in the armed services and the benefits were extended to them the benefits encouraged people to join the military. the question was do conscientious objectivors are they entitled to these benefits, they would not advance the state's interest in making it more like being able to fight in the nation's services. judge daughtrey: you would say that what we're trying to do in the confining marriage to opposite sex partners is to encourage pro creation? aaron linstrom: i think that is one of the state's interests is making sure that pro creation for one occurs in long-term committed relationships with opposite sex couples where pro creations. judge daughtrey: isn't that a little hypocritical then to

have, allow people to marry who can't procreate but prevent same-sex partners from marrying? aaron linstrom: not at all, your honor, state for a same-sex couple applying their marriage license, are they going to procreate, the definition of marriage is always going to recognize that opposite sex couples have the right to marry. that would be a limitation on the right to marry. you wouldn't get to that question. >> you would acknowledge that there are benefits, important benefits to the state beyond pro creation, the benefits and responsibilities attendant to marriage seem to bear on the question we're suggesting here is whether or not those matter to a state that says as virginia did, we have no interest in rights in seeing adult love. there are these benefits and responsibilities that would be important to the state, taxes, somewhat consistency among the married members, marriages throughout the state all would have the same responsibilities those sort of things?

aaron linstrom: i think there would be other benefits from people standing together. the question here would be is it at least a rational interest of for them to want a child to have at least a mother and father or do they want to recognize it as a biological reality opposite sex couples can have unplanned pregnancy, whereas same-sex couples cannot. so extending it to same-sex couples does not, so there is at least a rational basis which is all that is necessary. that does not undermine what is rational in the state for promoting this marriage.

>> as you would have notice, we know that from windsor, for example, right? the focus was the difference in rational basis review. aaron linstrom: romer starts out talking about the rational inquiry. whether or not there is a desire to harm. windsor does the same thing about desire to harm. if there were a bigger desire to harm you might be able to tell that. here there are no rational basis so there is no reason to fall back. you said the first assumption should be the one i started out with that voters are reasonable and rational. that is what the reasonable

basis test is. that is the reason to uphold the law. this is a democracy upholding rule. this is something the people can decide to change tomorrow by amending the federal constitution. it's not that the court is the only recourse for creating a new right. in fact, the court shouldn't be creating new rights. the third rational basis i haven't brought up yet is the fact that there is uncertainty in this area. it's simply such a new thing, it's hard to tell. again, plaintiff expert conceded that trying to study children raised in a same-sex household is a needle in a haystack population. they can say there hasn't -- an expert says there hasn't been a single comprehensive study of children that were actually raised in same-sex marriage. so a rational person might think even somebody who would vote in the future for same-sex markings a rational person might think it's too early to tell. it's rational to wait and see. so there is a number of different rational bases.

>> you were starting with fundamental rights and talking about rational basis review. the if you get to intermediate scrutiny through one path or the other, would you concede the state has a problem? aaron linstrom: no, your honor, it would depend on which framework it would be scrutiny. intermediate yacht scrutiny -- intermediate scrutiny under the equal protection clause setting aside the fact that the , court has three precedents sexual orient indication, even if those weren't there, under immediate scrutiny, biological differences between men and women can make a difference. in a case which is about the difference between mothers and fathers who had children who were born outside the united states, the united states supreme court upheld they treat men and women difficulty and required men to prove to a higher degree they were the father than a woman when they brought the child back in the u.s. it's possible to survive under intermediate yacht -- intermediate scrutiny.

and i guess, under the equal protection clause, the law stayed neutral and the law has no intent to harm. the district court in michigan's case will be recognized it wasn't possible to say that there was an intent or an an mouse on the part of michigan -- in intent or an animus on the part of michigan voters. so that means the only thing that is left is the impact and under washington versus davis -- judge sutton: how did they stay neutral? basically neutral as genderwise, i understand that. i agree with that. but i understand why it's neutral as between people of one sexual orientation and another. aaron linstrom: i think the answer would be that it doesn't prohibit them from marrying either.

so neutral, there was no evidence that this was done to exclude them. the evidence that it was simply continuing the definition throughout michigan's history. so the only reason, that's the answer. judge daughtrey: can i ask you you mentioned the sixth circuit. i assume you're talking about davis? aaron linstrom: as a friend of davis, yes, your honor. judge daughtrey: you know the problem with the quality foundation as i read it, it depended on, it relied upon the supreme court's decision which was reversed in lawrence. so i wonder -- aaron linstrom: your honor, the equality foundation opinion mentions bowers only when talking about prior history and it's based on roemer. it was remanded in light of roemer and now it's under roemer. so it doesn't rely on bours. it doesn't talk about bours and again, this court, even after lawrence has continued to apply the same --

judge daughtrey: i have to tell you, we are sometimes perfectly capable of blindly applying cases. i'm not sure i would be willing to say that we did in davis, but that has happened. judge sutton: if you were to lose under either one possibility, a possibility of same-sex marriage and the other possibility is the review which makes life difficult for justifying the law, would a practical implementation problems, you know, with brown you could say the only implementation problem was resistance, but it's a pretty easy rule to implement, right? and i guess what i'm interested , in from the state's perspective is this already controversy, there may be resistance, but why is it difficult as a matter of implementation to implement this new rule?

aaron linstrom: so, in other words the outcome were that same-sex marriage is constitutionally protected would it be harder for the states? judge sutton: yeah, what problems result? limitation problems, is it difficult to adjust state laws on marriage, divorce, anything else, or is it really pretty simple, you just now include this new group within -- aaron linstrom: it would have widespread impacts, i'm not quite sure how exactly all those would play out. judge daughtrey: what would they be? that's the question. what would they be? aaron linstrom: as far as changing how michigan's laws about marriage?

and the big picture, one of the things that could happen if it were changed, this is something that there would be no institution in michigan would stay, it's important to have both a mother and father. in terms of societal impact there might be harms which is to say there would be say there is nothing important for mothers to be there and fathers to be there. judge daughtrey: do you honestly thinks that's what happened in the states where same-sex marriage is now valid? aaron linstrom: i think it's too early to tell, your honor. it's only been 10 years since the first state passed it. judge daughtrey: we're beyond 25% of the jurisdictions in the country and probably more than that in terms of, maybe more than that in terms of population as a whole. and it doesn't look like the sky has fallen in. aaron linstrom: i think the point is that it's too early to tell when you're changing such a fundamental bedrock of society in just 10 years. that's not even a single generation of children. so i don't know how it could be possible to assess the outcome of children. judge daughtrey: i thought there was a lot of evidence offered in

the second trial in michigan that indicated, in fact, that the outcome on children was reasonably benign given what they know at this point. and i know you're going to say, it's too early to tell. aaron linstrom: i think that's a valid point, your honor. judge daughtrey: but then the people who tried to come in on your side of this trial and present all these terrible impacts that they said this would have, i mean there was even the texas professor where he had a disclaimer on the university of texas website saying don't believe anything this man says. aaron linstrom: your honor, the fact that one particular social scientist, i think the picture the big picture is this is something rational people could agree. it's a point that justice alito made in his assent in windsor that rational people could recognize that it's too early for social scientists or fill -- philosophers or historians to be able to tell. the animus -- >> to your point

mr. lindstrom, that the votes of citizens of michigan is that, i should think? aaron linstrom: i definitely think that weighs in consideration very heavily to say that, for example, this is under rational basis review to say that michigan voters didn't have among them, 2.7 million of them, a single rational basis and it's not possible to have a person of good will to disagree. >> the panel are people from ohio. we might be able to accept that argument. judge daughtrey: well, fair enough. so i think the numbers in ohio are also quite, maybe more sensitive. >> my red light is on? >> the dates of the lifetime the people in michigan voted was something like 10 years ago. aaron linstrom: it was 2004 that's correct, your honor, people can change their mind in the future. >> your full rebuttal time thank you.

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

calling same-sex marriage? >> what about -- i mean, i realize before windsor, the first and second circuits said baker is binding. post-windsor, there is a majority recognizing that, but i have to say, i really find that a very serious issue. the thing that is going on is you oddly enough treat the summary as binding precedent no less the in a fully-written opinion. everyone understands that is true. there is this language that the judge pointed out, doctrinal development. that's mainly from a 1975 case, hicks. it's not clear what hicks means because it then later says, you know, follow this until we tell you otherwise. then in american express, the court is pretty clear about saying even when you see one

line of cases crumbling, you the lower courts aren't allowed to invert and anticipatory only overrule this other line of cases. i guess it is really a matter of hierarchy. are we stuck with baker? carole: i don't believe so. this is one line from the order. it binds the court unless there are doctrinal developments that are subsequent. roemer, windsor, and lawrence constitute that doctrinal development. judge sutton: you say doctrinal development. is it fair to paraphrase that to me reasoning that is inconsistent with other lines of precedent? isn't that what you mean by doctrinal development?

carole stanyar: there is evolution of these concepts, evolution of due process concepts, evolution of equal protection in lawrence and in, i think, the court -- >> that is grown increasingly inconsistent with baker, that's your point, right? >> it's totally inconsistent with baker. >> ok. isn't that agustini? isn't that what is going on? carole stanyar: it is distinguishable. it was a full opinion that was -- that had written opinion, it had oral argument and a conclusion and the distinction between the summary and that type of situation is the fact that in a summary affirming order, you don't know what the rationale for the court is. it's an 11-word order. you don't know what the rationale is. you don't know what the court based its ruling on. that is what distinguishable about these type of rulings. judge sutton: i think that's why summaries aren't binding on the supreme court. they're very casual about ignoring them, but i didn't think that rule applied to lower

courts. carole stanyar: the second circuit in league of women voters of nassau county explained that lower courts can be informed directly by an outright reversal of an earlier decision or they can be informed indirectly by doctrinal developments. so they help or what we would say is that here are the doctrinal developments are the way that this court is informed, and, therefore, this court can make the call, this court can make the call despite baker and every court in the country has ruled this way on baker. judge sutton: that wasn't true on the first and second circuit for windsor. carole: before windsor, right? >> windsor is doctrinal development, the most doctrinal development that we have, it's a recognition of the same-sex marriage case. it's the degree that i would argue doctrinal development case.

judge sutton: lawrence and roemer were doctrinal development. i think you rely on those cases. >> we do. >> that didn't fall through their view to look at this? >> it didn't alter the sixth circuit -- >> in the second circuit's view before windsor? one of those cases was windsor itself? carole stanyar: i understand that, the court in perry certainly -- let me put it this way, the court, the supreme court had that issue before it. there was a discussion on the record with i believe justice ginsburg talking about don doctrinal development and the court didn't think anything on that. the court doesn't think much about that. it didn't even mention baker. it didn't even talk about it. and the court allowed california's ban to be struck down. judge sutton: it would have been pretty strange for windsor to say anything about baker given

that the companion case to windsor is hollingsworth and they decided there was a jurisdictional impediment for getting to the issue presented in today's case. carole stanyar: i understand. i understand what the court is saying. i think in this case, this court can reach it because, you know there has been doctrinal development. >> we are not asking to redefine the marital relationship. we are only asking for an end that prevents same-sex couples from the right to marry. due process focuses on the attributes of the right itself not on the fact that the person -- >> when you're talking about getting that right, it requires statewide, that's what your clients want. >> they want state license. license, fair relationship. carole stanyar: that's correct and the right to marry, yes. judge cook: well, the import there is something different than i thought you were talking about. you want them to recognize it and to license it by the -- the state to license it.

carole stanyar: we do. the central attribute of the marriage is the freedom to marry the person of your own choice. the state citeses glovesburg that the court must make a careful of the right asserted. loving versus virginia, turner and the list -- judge sutton: i mean, i just that is 1967 decision so in 1968, say a gay caucasian man and a gay african-american man go to virginia to seek a license to marry. do you really think loving controls that case in 1968? carole stanyar: well, i think the court by citing loving in windsor thinks that there is not much difference between marriage by a same-sex couple and marriage by an interracial couple. they didn't decide the case but they cited it. the trend is certainly in that direction. i think the court -- judge sutton: it's different

from saying what loving stands for. isn't the answer to my question about what happened in 1968 pretty obvious because we have baker in 1973. carole stanyar: i think that lawrence, excuse me, that justice kennedy tells us something about how the court may be viewing these cases. i think what he is saying and i think you see it in lawrence and you see it in windsor. the court is saying that back decades ago, certain practices were accepted. now we understand more about these things and we now understand that these are now going to be framed as discriminatory. we didn't know anything about same-sex couples back at the at the time of loving. these were hiding because their conduct was criminalized. i think to say that this is, with the argument hold water back in 1967, it was a different time. judge sutton: what about, i know that there is many significant benefits, some of them monetary and extended to same-sex couples if you win here and i think that's significant, but i have to believe based on the briefs

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

voters can no longer appeal to their legislators. the usual deference to the process evaporates, there is plenty of reason to infer antipathy here. you have historic discrimination, prosecution of same-sex conduct throughout history. judge sutton: michigan voters have put, another initiative were put in front of them, it may be a different vote and may well be a different outcome today. carole stanyar: the practicality, the michigan voters, to get this before them, you would have to come up, the signatures of 10% of the total number of voters that were in the last general election for, it's very cost prohibitive for a disfavored minority to be doing that.

judge sutton: if the goal is to change of hearts and minds which i believe is one of the key goals, isn't that worth the expense? isn't it more likely to change hearts and mind through the democratic process than you are by five justices of the u.s. supreme court? carole stanyar: fundamental constitutional rights may not be submitted to popular vote. they depend on the outcome of no election. judge sutton: assuming you win, my question is assuming you can win on this, i'm asking you a question, why do you want this route? it's not 100% obvious to me why it's the better route, it may be the better route for your clients and as a lawyer, you have to keep the focus on that but it's not 100% obvious to me it's the better route for the gay rights community, that's not obvious to me. carol: -- carole stanyar: i'm not at all optimistic that we could get that in michigan secondly, the government made that same argument. they said, just wait for the passage of the e.r.a., that would be better. that was 1973.

we would still be waiting now. it brings injury here, marriage provides unparalleled social legal, and personal meaning, commitment, mutual reciprocal responsibility, dignity. it is security, it is a status it is stability. it goes well beyond the deprivation of the right to marry. michigan's laws are pervasively discriminatory to same-sex couples. they are destabilizing to these families, something that i think all parties agree during this trial. april deboer is a legal stranger to her son and jane rouse is a legal stranger to her own daughter. the ban also brings the loss of important economic resources, we have lists all those. it brings psychological injury. we had a doctor explain that no matter how confident, how devoted, how caring that second parent is from the child's perspective, some children will suffer from an am bigous -- from in ambiguous socially unrecognized seemingly not permanent relationship with the second parent. in a majority of the supreme court added more on windsor. they humiliate children.

they devalue same-sex couple families in comparison with their opposite sex counterparts. it brings shame to these children. the injury is especially unjust, especially cruel for our plaintiffs. a nicu nurse, an emergency room nurse taking in the babies that were left behind, a premature infant in an incubator struggling to live, special needs children, hard to place children, children of color, foster children, they took them in. judge sutton: these arguments seem really powerful if you get heightened scrutiny and maybe dispositive, but do they survive a rational basis review? stanyar: under a rational basis, we think it flunks on a rational basis. the test would be it requires a connection between the purpose and the law itself. that connection is missing here. first of all, the mother/father rational. the ban as the judge indicated is not increasing those mother-father families. it's not detering same-sex couples from marrying, from having children, from raising them responsibly.

judge sutton: but i mean rational basis review allows under inclusive and overinclusive laws. that's really the whole point of it, that you can, the legislature can address a problem one step at a time and the fact that it's overinclusive or underinclusive, that's what the court means is that decisions will be corrected through the democratic process. it seems like that's your point here. it's underinclusive. if you care about children, you should care about the children in these marriages. if you care about love and affection, you should care about these couples. they're just as capable of love and affection as the others. but that is just not how rational review basis works. carole stanyar: in a series of cases, the court struck down lines calling what the court calls riddled with exceptions, striking down laws suffering

from that miss fit classification. this definition is not unprecedented. >> this assumes that the argument is whether it is unprecedented in terms of never allowing same-sex couples before , whether it fits the characterization. i don't agree that it is a one factor test. what i see the court doing is looking at these laws in full context. a number of factors. using a totality of circumstances.

it matters that this was a constitutional amendment. >> it is a very personal right. it is saying police officers have to retire at age 50. saying there is a correlation between age and physical fitness. of course, that is a ridiculous law. the court upheld the law and i'm sure it was deeply offensive to 61-year-old police officers who were more fit than their colleagues. that just gives you a sense of how tough it is to get through a rational basis review and overcome it. >> the rational basis one -- contrary centers -- contraceptives to married -- and

rational basis review, it is under conclusion. the state talks about the robison case. saying that the state only needs to show that the inclusion needs to show the state. the state is misreading that case. the line drawn that rationally distinguishes between two groups allowed conscientious objectors to be denied benefits. the groups were not similarly situated with respect to those benefits. the purported justifications made no difference in how the law treated those similarly situated in important respects. this is the problem that we have. with the biology rationale.

in michigan, parents of the same rights as biological parents. the band does not logically further any of those ties. cases that are struck down under rational basis are riddled with exceptions. tying appropriation to marriage. people can marry without having children. people can have children without marrying. an equal perception under the constitutional law doctrine distinguishes between marriage and procreation. in griswold, the court found that married persons have a constitutional right not to have children. in skinner, have been to a criminals cannot be subjected to forcible sterilization.

>> unintended pregnancies? >> with unintended pregnancies there is another disconnect. it is the same problem. the band does not do anything to diss incentivize heterosexual couples from marrying. marriage gives them that already. the band does not do anything to take it away. it is a non-ration now. there is a disconnect between a purported purpose and the for classification that is in place. the right to procreate is independent of the right to marry. courts cannot require procreation as a precondition to a constitutional right. the state is now arguing as a

factual matter. voters must have believed that mother-father families are preferable. that claim is based upon a rational speculation, disproven irrational speculation. parents are important as people. two parents bring double the resources. the parent-child relationship matters most. the relationship between two parents matters. the state fully engaged in this trial process. they offered expert testimony on the mother-father rationale, on the biological rationale. >> have a question about pacing which seems to be at the heart of this. i saw a statistic in one book that said in 1985, 20 5% of

americans knew somebody who is gay. by the year 2000, it was 74%. when you see that statistic, you realize that social science statistics have nothing to do with this. all that has changed is the result of the concrete trumping the abstract. people knowing they can have great relationships and great -- be great parents and so forth. what is odd to me about the plaintiff's position as it does not show much tolerance for democracy sometimes being a little 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 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] -- quasi-sexubsex status. 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

could be laurents or it could be cleburne. the court clearly did not apply the cleburne factors. 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 is humane. 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 what was passed in windsor. 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] loving violated the equal protection cause. the loving case talks about the fact of white supremacy. 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 daughtrey: 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 tsunami 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. 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. we appreciate your briefs. the clerk may call the next case. >> the supreme court hears oral arguments tuesday. -- today in two cases regarding 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 -- we will be live with the sights and sounds outside of the cord beginning at 10:00 a.m. eastern and we will bring you the audio of the oral arguments beginning at 4:00 p.m. 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. >> 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 -- 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, the vendors could not sell beer 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 explainur -- 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 -- >> 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: 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. >> 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.

>> 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 20-21 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 -- where the democratic process has evolved -- 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 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. -- hiccups. 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 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 intestate 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 refuse to issue -- refuse to recognize people who get into common-law marriages within the state, but then apparently allow somebody whose marriage is, a common-law 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 predates 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 intrusion 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 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 suffragettes 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. >> the supreme court hears oral arguments in two cases regarding 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 must recognize lawful same-sex marriages performed in other states. we will be alive with the sights and sounds outside the court beginning at 10:00 a.m. eastern and beginning at 4:00 p.m. we will bring you the audio of the oral arguments. all of that on c-span 3. >> this weekend, the c-span

cities tour has partnered with coxe communications to learn about the history and literary life of topeka. >> when the kansas-nebraska act was signed in 1854, the act of signing it, of just signing that piece of paper was viewed by missourians as an act of war. when northerners decided that popular sovereignty would decide -- would decide the fate of kansas, we would send people to settle, that was viewed as an act of war by many missourians. there are raids back and forth across the kansas border. almost immediately. in may of 856, john brown -- in may of 1856, john brown and his sons dragged five men from their cabins and they are shot and hacked with broad sorts. that effectively cleared that area of southern settlers. >> in topeka, if you look to the

schools just standing outside you would be hard-pressed to determine whether white students or african-american students attended because the school board really did provide all of the same materials that white schools offered. and what is even more interesting for most people when they come to visit if they find out that after graduating from elementary school african-american students attended integrated middle and high schools. while they certainly were no supporters of segregation and saw the injustice of having to attend separate elementary schools, the african-american community also was very proud of their schools because these were excellent facilities. so while there was support for the idea of integration, there was also some resistance especially from the teachers and the local chapter of the naacp who fear the loss of these institutions and the loss of those jobs. >> watch all of our events from topeka saturday at noon on

c-span 2'xss book tv. and sunday morning on american history tv on c-span 3. >> loretta lynch officially became the first female african-american u.s. attorney general monday. she was sworn in as the 83rd attorney general by vice president biden in a ceremony at the justice department. it is 20 minutes. >> ladies and gentlemen, please welcome attorney general designate ms. loretta lynch and vice president of the united states joe biden. [applause]

vice president biden: i first stepped into this room during the nixon administration. i remember walking into this building and inking about the majesty of this place and how much we rely on it. for all of our basic rights and protections. your whole family is here today. i hope you will forgive as we used to say in the senate a point of personal privilege. i am so happy to meet your dad.

dad, stand up. [applause] this is a man who never thought it paid to be silent in the face of oppression and prejudice. so many people, so many people not only in your home state of north carolina and into the country ou so much, not just for your wisdom but the courage it took back in those days to speak out as you did. a baptist minister who always thought his children that anything is possible. think about that are in a lot of his teller children that, but in the face of jim crow in north carolina, raising a lovely bright young woman as well as her brother and saying anything,

anything is possible. the truth of the matter was, he not only taught it, he fought for it. as i understand, he made it clear they had to work for it as well. taking young loretta to the courthouse to see important cases was in those days fairly innovative. why does he have his young daughter with him in the courthouse? at the local library, he would drop her off where there was some security. she was surrounded by all those works, just an incredible love of learning and language.

this is an incredible moment. a baptist minister who preached during the sit-ins in greensboro finds himself 50 years later with his daughter in this magnificent room, now leading the march to a more perfect union. this is something he fought or his whole life and still fights for. it's about time. it's about time this woman is being sworn in. [applause] it's about time. remember what she is to say? i'm tired of being tired. we got tired of this weight. you showed such grace and humility during this process.

this is a woman who is incredibly qualified, just like eric holder whom i have known for years. he is among one of the finest attorneys general we have had. he has been in this environment such of political hostility, he has stood his ground on a principal and he has been right. [applause] the reason he was always so nice to me is he was on the committee to choose vice president. he owed me for what he did. that is a joke, press. that is a joke.

for the past six and a half years, eric sat next to me in cabinet meetings. there is a protocol where each seat is. you will sit on my left during those cabinet meetings. eric sat there and i do know how many meetings we have had in the situation room. he served the department with distinction and our country with honor and i thank him and his wife and his family. he has a beautiful family of brilliant kids. [applause] i want to thank them for their service. i have confidence that loretta

lynch will exceed the high standards. she is cut from the same cloth. they embody the mantra of their predecessor, the man after whom this building is named. "the purpose of life is to contribute to making things better." five generations, your brother is also a baptist minister. your dad taught you to stand up for what's right and speak out for what's just and get up when you get knocked down and move on. if there is anything you need to know about loretta lynch, she excelled in everything she has