think that's quite a critical point that goes to the questions that your honor was asking earlier. i do think lawrence was an important catalyst that has brought us to where we are today. and i think what lawrence did was provide an assurance that gay and lesbian couples could live openly in society as free people and start families and raise families and participate fully in their communities without fear. and there are two things flow from that, i think. one is that has brought us to the point where we understand now, in a way even that we did not fully understand in lawrence, that gay and lesbian people and gay and lesbian couples are full and equal members of the community. and what we once thought of as necessary and proper reasons for ostracizing and marginalizing gay people, we now understand do not justify that kind of impression. justice roberts: the difference, of course, is lawrence, the whole argument is the state cannot intrude on that personal relationship. this, it seems to me, is different in that what the argument is the state must

sanction. it must approve that relationship. they're two different questions. mr. verrilli: it is different, i agree. and i, and it leads to the second thing i think that the that the lawrence catalyzed for our society, was it put gay and lesbian couples, gay and lesbian people, in a position for the first time in our history to be able to lay claim to the abiding promise of the 14th amendment in a way that was just impossible when they were marginalized and ostracized. and you're right, mr. chief justice, this is about equal participation, participation on equal terms in a state-conferred a state-conferred status, a state institution. that is different than lawrence, but -- i do think that what lawrence has allowed us to see is that the justifications for excluding gay and lesbian couples from equal participation in this institution just hold up. and i do think and the court has raised this question about whether what we are talking about here is a is a fundamental change in the nature of marriage. and i think the answer to that

question is that this case can be decided by thinking about marriage in exactly the way the states, the respondent states and other states define marriage now. and i think it's important to think about it this way. heterosexual couples can enter marriage, and they can have families through biological procreation. they can have families through assisted reproduction. they can have families through adoption, or they can not have families at all. justice alito: what do you think are the essential elements of marriage as it exists today? mr. verrilli: well, i think the essential elements of marriage are the ones that are 24 that the obligations of mutual support and responsibility and the benefits surrounding marriage that state law provides to ensure that there is an enduring bond, that enduring bond that continues over time and lasts, hopefully, till death do us part, through the end of life. and that and with and, certainly, childrearing is bound

up in that. but what i would suggest justice alito, is the that way childbearing, bearing is bound up in that is quite different than what my friends on the other side will say. justice alito: well, let's think about two groups of two people. the first is the same-sex couple who have been together for 25 years, and they get married either as a result of a change in state law or as a result of a court decision. the second two people are unmarried siblings. they've lived together for 25 years. their financial relationship is the same as the same-sex couple. they share household expenses and household chores in the same way. they care for each other in the same way. is there any reason why the law should treat the two groups differently? ms. bonauto: well, i'm not sure that the law would -- the law allows 100% of heterosexual people to enter into a marriage that's consistent with their sexual orientation, and in these -- states, it forbids 100% of gay and lesbian people from

entering into a marriage that's consistent with their sexual orientation -- justice alito: well, as far as -- mr. verrilli: and justifies that difference. justice alito: as far as the benefits that federal law confers on married people, such as in windsor, the effect on estate taxes, what would be the reason for treating those two groups differently? mr. verrilli: well, i i'm not entirely sure there would be but, of course, marriage is something more fundamental than that. it is an enduring bond between two people. and to get back to the point about childrearing, i do think this is quite important. i mean, i understand, and in part of their wait-and-see and caution argument, that respondents are that what respondents are saying here is that they that they want to exercise an attitude of caution because of concern about the welfare of children raised in same-sex married households. but there's a quite significant problem with that rationale, and it's this: right now, today hundreds of thousands of children are being raised in same-sex households. that number is only going to grow. all of the evidence so far shows you that there isn't a problem,

and what the and the states' argument really is quite ironic in this respect that it's going to deny marriage, the state -- justice scalia: that that's quite a statement. all of the evidence shows there is no problem. mr. verrilli: well, i -- justice scalia: all of the evidence shows there's not a problem. mr. verrilli: i think all of the leading organizations that have filed briefs have said to you that there is a consensus in that, and -- justice scalia: well, i think some of the some of the briefs contradicted that. mr. verrilli: but even beyond that, i think the more fundamental point, and the point i'm trying to drive at here, is that you have hundreds of thousands of children raised in same-sex households now. and what respondents' position and respondents' caution argument leads you to is the conclusion that those hundreds of thousands of children don't get the stabilizing structure and the many benefits of marriage. justice roberts: counsel, i'd like to follow up in a line of questioning that justice scalia started. we have a concession from your friend that clergy will not be required to perform same-sex marriage, but there are going to be harder questions.

would a religious school that has married housing be required to afford such housing to same-sex couples? mr. verrilli: i guess what i'd like to make three points about that, if i could, mr. chief justice. justice roberts: well, the first part -- mr. verrilli: and i will and i'll go right at the question you asked. the first one is, of course, this court's ruling addresses what the states must do under the 14th amendment. and the and the second point is that when you get to a question like the one your honor asked, that is going to depend on how states work out the balance between their civil rights laws, whether they decide that there's going to be civil rights enforcement of discrimination based on sexual orientation or not, and how they decide what kinds of accommodations they are going to allow under state law. and they could well you know different states could strike different balances. justice roberts: what about federal, it's a federal question if we make it a matter of constitutional law. mr. verrilli: but the question

of what how states use their enforcement power is up to the states. justice roberts: well, you have enforcement power, too. mr. verrilli: right. and -- and well, that's certainly true but there is no federal law now generally banning discrimination based on sexual orientation, and that's where those issues are going to have to be worked out. and i guess the third point i would make, your honor, is that these issues are going to arise no matter which way you decide this case, because these questions of accommodation are going to arise in situations in states where there is no same-sex marriage, where there are and, in fact, they have arisen many times. there are these commitment ceremonies. for example, in the new mexico case in which this court denied cert just a few months back, that did not arise out of a marriage. that arose out of a commitment ceremony, and these, you know, commitment ceremonies are going to need florists and caterers. justice alito: well, in the bob jones case, the court held that a college was not entitled to tax-exempt status if it opposed interracial marriage or interracial dating. so would the same apply to a university or a college if it opposed same-sex marriage?

mr. verrilli: you know, i don't think i can answer that question without knowing more specifics but it's certainly going to be an issue. i don't deny that. i don't deny that, justice alito. it is it is going to be an issue. justice kennedy: let me ask one question. i see your time is going out. i'm interested in your comments on glucksberg, which says what we should have to define a fundamental right in its narrowest terms. a lot of the questions that we're asking your colleague in the earlier part of the argument were had had that in mind, i think. what do we do with the language of glucksberg that says we have to define it in a narrow way? mr. verrilli: justice kennedy, forgive me for answering the question this way. we do recognize that there's a profound connection between liberty and equality, but the united states has advanced only an equal protection argument. we haven't made the fundamental rights argument under glucksberg. and therefore, i'm not sure it would be appropriate for me not having briefed it to comment on that. justice kennedy: well, can you tell me why you didn't make the

fundamental argument? mr. verrilli: well, because we think -- well, because we think while we do see that there is, of course, this profound connection, we do think that for reasons like the ones implicit in the chief justice's question, that this issue really sounds in equal protection, as we understand it, because the question is equal participation in a state conferred status and institution. and that's why we think of it in equal protection terms. and if i could just in the in the little time that i have left, i'd like to suggest this, that what the respondents are ultimately saying to the court is that with respect to marriage, they are not ready yet. and yes, gay and lesbian couples can live openly in society, and yes, they can raise children. yes, they can participate fully as members of their community. marriage, though, not yet. leave that to be worked out later. but the petitioners, the petitioners, these gay and lesbian couples are -- justice scalia: or not. or not. i mean, that's not what they are saying. they are saying leave it to the

people. it will be worked out later or not. mr. verrilli: but what these gay and lesbian couples are doing is laying claim to the promise of the 14th amendment now. and it is emphatically the duty of this court, in this case, as it was in lawrence, to decide what the 14th amendment requires. and what i would suggest is that in a world in which gay and lesbian couples live openly as our neighbors, they raise their children side by side with the rest of us, they contribute fully as members of the community, that it is simply untenable to suggest that they can be denied the right of equal participation in an institution of marriage, or that they can be required to wait until the majority decides that it is ready to treat gay and lesbian people as equals. gay and lesbian people are equal.

they deserve equal protection of the laws, and they deserve it now. thank you. justice roberts: thank you general. mr. bursch. mr. bursch: thank you, mr. chief justice, and may it please the court, respondents are not saying we're not ready yet. respondents are really echoing the questions that that justice breyer was asking. this case isn't about how to define marriage. it's about who gets to decide that question. is it the people acting through the democratic process, or is it the federal courts? and we're asking you to affirm every individual's fundamental liberty interest in deciding the meaning of marriage. and i think this whole case really turns on the questions that justice scalia asked. justice sotomayor: i'm sorry. nobody is taking that away from anybody. every single individual in this society chooses, if they can their sexual orientation or who to marry or not marry. i suspect even with us giving gays rights to marry that

there's some gay people who will choose not to. just as there's some heterosexual couples who choose not to marry. so we're not taking anybody's liberty away. mr. bursch: but we're talking about the fundamental liberty interest in deciding the question of what marriage means, and to get that -- justice breyer: i don't know that that's i mean, leaving that to the side, i thought that i heard the answer to the question being given in respect to tradition of 2000 years, and to the democratic ballot box and so forth was quite simple. what i heard was, one, marriage is fundamental. i mean, certainly that's true for 10,000 years. and marriage, as the states administer it, is open to vast numbers of people who both have children, adopt children, don't have children, all over the place.

but there is one group of people whom they won't open marriage to. so they have no possibility to participate in that fundamental liberty. that is people of the same sex who wish to marry. and so we ask, why? and the answer we get is, well people have always done it. you know, you could have answered that one the same way we talk about racial segregation. or two, because certain religious groups do think it's a sin, and i believe they sincerely think it. there's no question about their sincerity, but is a purely religious reason on the part of some people sufficient? and then when i look for reasons three, four and five, i don't find them. what are they? so therefore, i'm asking there i put a long question, but it gives you an opening to say what all of those reasons are.

mr. bursch: justice breyer those answers one and two are not our answers. justice breyer: good. mr. bursch: our answer number one is that the marriage institution did not develop to deny dignity or to give second-class status to anyone. it developed to serve purposes that, by their nature, arise from biology. now, imagine a world today where we had no marriage at all. men and women would still be getting together and creating children, but they wouldn't be attached to each other in any social institution. now, the marriage view on the other side here is that marriage is all about love and commitment. and as a society, we can agree that that's important, but the state doesn't have any interest in that. if we're trying to solve that social problem i just described, where there's no marriage, we wouldn't solve it by saying well, let's have people identify who they are emotionally committed to and recognize those relationships. justice kagan: mr. bursch, i understand that argument. it's the principal argument that you make in your briefs, that same-sex marriage doesn't advance this state interest in regulating procreation. let's just assume for the moment

that that's so. obviously, same-sex partners cannot procreate themselves. but is there in addition to that, are you saying that recognizing same-sex marriage will impinge upon that state interest, will harm that state interest in regulating procreation through marriage? mr. bursch: we are saying that your honor. now, obviously, under a rational basis, that's not a question that you need to decide, but -- but even leaving that aside -- justice ginsburg: how could that how could that be, because all of the incentives, all of the benefits that marriage affords would still be available. so you're not taking away anything from heterosexual couples. they would have the very same incentive to marry, all the benefits that come with marriage that they do now. mr. bursch: justice kagan and

justice ginsburg, it has to do with the societal understanding of what marriage means. this is a much bigger idea than any particular couple and what a marriage might mean to them or to their children. and when you change the definition of marriage to delink the idea that we're binding children with their biological mom and dad, that has consequences. so, you know, for example, a reasonable -- justice sotomayor: you don't do that. mr. bursch: if i could -- justice sotomayor: that's the problem. mr. bursch: if i could -- justice sotomayor: marriage doesn't do that on any level. how many married couples do fathers with the benefits or the requirements of marriage walk away from their children? mr. bursch: justice -- justice sotomayor: so it's not that the institution alone does it and that without it that father is going to stay in the marriage. he made a choice. mr. bursch: justice -- justice sotomayor: i would say that it could i could it should be gender neutral. some mothers do the same thing. but my point is that i'm not

sure how i get to the point that justice breyer is making -- how does withholding marriage from one group, same, same-sex couples, increase the value to the other group? mr. bursch: justice sotomayor, there's all kinds of societal pressures that are already delinking that reason that the state, again, is for marriage, keeping kids and their biological moms and dads together whenever possible. justice scalia: excuse me. do you have to answer that question? mr. bursch: under rational basis, we don't. justice scalia: is it your burden to show that it will harm marriage between a man and woman if you allow two men or two women to marry? is that your burden? i thought your burden was simply to show that, that the state's reason for this institution is a reason that has nothing to do, that is inapplicable to same-sex couples. mr. bursch: justice scalia you're exactly right, and that's why we prevail. justice kagan: yes, but i don't

think that -- mr. bursch: but i want to answer your question. justice kagan: that's right, mr. bursch. i don't think that that's right. i think before something as fundamental to a society and to individuals as marriage, before an exclusion of this kind can be made in that institution, the state needs some reason for that exclusion. mr. bursch: and that's why i'd like to answer. justice kagan: and i've given you a real opportunity to tell me what that reason is. mr. bursch: yes, i -- justice kagan: what is the reason for the exclusion rather than the reason for the noninclusion? mr. bursch: well, first, it wasn't a reason for an exclusion. it was a definition to solve a particular problem. but the reason why there's harm if you change the definition because, in people's minds, if marriage and creating children don't have anything to do with each other, then what do you expect? you expect more children outside of marriage. now, i want to give you a hypothetical. imagine two couples -- justice kagan: but do you think do you think that that's what it would do, mr. bursch, that if one allowed same-sex marriage, one would be announcing to the world that marriage and children have nothing to do with each other? mr. bursch: not in the abstract, your honor. that kind of example -- justice kagan: well, not in the abstract, not in the concrete.

mr. bursch: well, let me give you an example. we're talking about something that's going to change the meaning of the institution over generations. and, you know, you have things like no-fault divorce where we tweaked what marriage means, and it had consequences over the long term that some people didn't expect. i want you to think about two couples that are identically situated. they've been married for five years, and they each have a 3-year-old child. one grows up believing that marriage is about keeping that couple bound to that child forever. the other couple believes that that marriage is more about their emotional commitment to each other, and if that commitment fades, then they may not stay together. a reasonable voter, which is what we're talking about here, could believe that there would be a different outcome if those two marriages were influenced by those two different belief systems. ideas matter, your honors, and, you know, the out-of-wedlock birth rate -- justice kennedy: but that that assumes that same-sex couples could not have the more noble purpose, and that's the whole point. same-sex couples say, of course, we understand the nobility and

the sacredness of the marriage. we know we can't procreate, but we want the other attributes of it in order to show that we, too, have a dignity that can be fulfilled. mr. bursch: and justice -- justice kennedy: and -- but you argued in your brief and justice kagan was quite correct to say that you're saying that this harms conventional marriage. that was the argument you made in your brief as i understood it. mr. bursch: justice kennedy, to be perfectly clear, the state of michigan values the dignity and worth of every human being, no matter their orientation or how they choose to live their life. that's not what this case is about. our point is that when you change something as fundamental as the marriage definition, as chief justice roberts was saying, the dictionary definition which has existed for millennia, and you apply that over generations, that those changes matter. and it's not unreasonable 50 -- justice breyer: i'm sure that's true. but i mean, the fact is that

that x%, a very high percentage of opposite-sex people don't have children and everybody knows they can't, and a very -- and a high certain percentage, i'm sure probably pretty of high of those who get married, of same-sex people who get married do have children. so where is this going? i mean, what are these two couples to do with it? i mean -- mr. bursch: well, we're -- justice kennedy: how do we get from what i just said -- mr. bursch: right. we're concerned -- justice kennedy: to some kind of rational or important distinction? mr. bursch: what we're concerned about all the children, children of opposite-sex couples and children of same-sex couples. there are 72 million children in this country. if this court ensconces in the constitution a new definition of marriage and it reduces the rate that opposite-sex couples stay together, bound to their children, because of that different understanding, even a 1% change -- justice breyer: well, what evidence -- mr. bursch: is many, many children. justice breyer: is there of that? mr. bursch: a reasonable voter again, looking at the two couples that i just described, one believing that marriage is all about staying with their

kids, the other one believing it's all about emotion and commitment, could have different results. and it's reasonable to believe that. justice sotomayor: but the problem is that even under a rational-basis standard, do we accept a feeling? i mean, why is, why as -- and i think justice kagan put the argument quite clearly, with something as fundamental as marriage, why would that feeling, which doesn't make any logical sense, control our decision-making? mr. bursch: it doesn't make any logical sense to you that if people think love is or a marriage is more about love and commitment than about staying bound to your child forever, that there might be different consequences when people are -- justice kagan: but i do think, mr. bursch -- justice sotomayor: my problem is that i think people who get into marriage think that, heterosexual couples. mr. bursch: i think everyone thinks that. justice sotomayor: everybody has their own vision of what marriage is, but what the state confers is certain obligations -- mr. bursch: yes. justice sotomayor: and they are willing to accept those. whether or not that couple stays together, they are bound to that child. they have to support the child they have to care for him or

her. some people choose voluntarily meaning they just choose because they don't want to, but that happens in -- whether it's same-sex or heterosexual couples. mr. bursch: right. but what you're describing are different ways that people think about marriage, and certainly it's a harm to a child of an opposite-sex couple if they get divorced as opposed to stay together forever. i mean, i think we can all agree that, in general, that we want kids to stay bound to their biological mother and father whenever possible. that's the whole definition. and what i hear are lots of other -- justice sotomayor: no, i think they should be bound to their parent, because there's a lot of adopted children and they are not thinking of biological moms and dads. mr. bursch: oh, sure. that's a completely different situation. justice sotomayor: you know, well -- mr. bursch: right. i mean, that that's a situation where the child doesn't have their biological mom and dad anymore for whatever reason, and so that's a different state interest. justice kagan: mr. bursch, suppose -- suppose this: suppose that there's a state with a very procreation-centered view of marriage of the kind that you're talking about.

and it you know, so emotional commitment and support, all of these, the state thinks are not the purpose of marriage and they want their marriage licenses to be addressed only to the things which serve this procreation purpose. and so they say, well, we're not giving marriage licenses to any to anybody who doesn't want children. so when people come in and ask for a marriage license, they just ask a simple question: do you want children? and if the answer is no, the state says, no marriage license for you. would that be constitutional? mr. bursch: well, that would cut against the state's interest as you've just described it because even people -- justice kagan: no, the state has the state has this it's not a perfect correlation, but the state says that the best the best way to promote this procreation-centered view of marriage is just to limit marriage to people who want children. so that's what it does. would that be constitutional? mr. bursch: but, justice kagan even people who come into a marriage thinking they don't

want to have children often end up with children. and that state's interest isn't binding those -- justice kagan: no, but this state -- justice kennedy: but what is your -- justice kagan: what you said -- justice kennedy: what is your answer to the question? justice roberts: justice kennedy. justice kennedy: what is your answer to the question? mr. bursch: would it be constitutional? justice kennedy: yes. mr. bursch: i think it would be an unconstitutional invasion of privacy to ask the question. justice kagan: to ask if you want children is an unconstitutional invasion of privacy? mr. bursch: i think that would be the case, yes, just like it would be unconstitutional -- justice ginsburg: suppose a couple, a 70-year-old couple comes in and they want to get married. justice ginsburg: you don't have to ask them any questions. you know they are not going to have any children. mr. bursch: well, a 70-year-old man, obviously, is still capable of having children and you'd like keep that within the marriage. but leaving that aside, what you're talking about, justice ginsburg, is a tailoring issue under rational basis, which we submit applies here. vance and heller both say that overinclusiveness is not something you need to worry about. but even if you applied some kind of heightened scrutiny, you know, again, many people get married thinking that they can't have kids or won't have kids, and they end up with children, and that the inclusion of those

couples advances the state's interest because of this greater idea. justice kagan: no, but you're but you're the one who said that rational basis, pure rational basis, applies. and this is a state -- mr. bursch: yes. justice kagan: that's decided that it so wants this procreation-centered view of marriage, that it's going to exclude people who don't want children. it's going to exclude people who can't have children. and the question is, would that be constitutional? and it seems to me it flows directly from your argument that it would be constitutional. but the problem is that we hear about those kinds of restrictions, and every single one of us said that can't be constitutional. and i'm suggesting that the same might be true here. mr. bursch: that it can't be constitutional to keep the marriage definition that, as several justices have mentioned, has been rationally applied for millennia in every culture. justice kagan: to keep the marriage definition as you have described it as so procreation centered that a state can exclude everybody that does not serve that purpose for that reason alone. and that's the reason you've given.

mr. bursch: that that's the primary interest. but if you're concerned about the overinclusiveness, the underinclusiveness, you know the plaintiffs' definition of marriage, other definition of marriages suffer from that same flaw. you know, so, for example, the plaintiffs' definition also excludes relationships, families that have already been discussed this morning that might benefit from having state-recognized marriage. it also includes people who have no real emotional love or commitment towards each other. they get married for other reasons. so if those are the reasons why the state's definitions -- justice alito: if the reason -- mr. bursch: are invalid -- justice alito: the reason for marriage is to provide a lasting bond between people who love each other and make a commitment to take care of each other, i'm not do you see a way in which that logic can be limited to two people who want to have sexual relations -- mr. bursch: it can't be. justice alito: why that would not extend to larger groups, the one i mentioned earlier, two men and two women, or why it would

not extend to unmarried siblings who have the same sort of relationship? mr. bursch: it would be overinclusive and underinclusive. and the underlying point there is that the state doesn't have an interest in love and emotion at all. you know, if justice kagan and i have a close friendship, the government doesn't regulate when that friendship begins or ends. but the government's sole interest in these cases isn't about love. it's about binding children to their biological -- justice breyer: that's fine. mr. bursch: moms and dads -- justice breyer: i'd like to go to direct that. i because i think we can accept that kind of definition, and simply point out that many gay people want to have children and they do. mr. bursch: sure. justice breyer: so it's i'm not certain how that works here, but i'll think about it. the other thing i that you will have a view on, and will be helpful to me, is there is an argument being made, if not by the government -- and i'd like your response to it -- that after all, marriage is about as basic a right as there is, that

the constitution and amendment 14 does say you cannot deprive a person of liberty, certainly of basic liberty, without due process of law, and that to take a group of people where so little distinguishes them from the people you give the liberty to, at least in terms of a of a good reason for not to, and you don't let them participate in this basic institution, that that violates the 14th amendment. now, the reason that i'm interested in that is we don't get into this more scholastic effort to distinguish between rational basis and middle tier and some higher tier and so forth. and it's not going to get into all these questions of balancing free religion rights versus gay rights and so forth. we'd avoid that in this case. and perhaps that's wise, if not legally required, which it may

be. and so i'd like your response to that aspect of the other side's argument. mr. bursch: i think with respect to the right of privacy which you identify, this court already answered that that question in its majority opinion in windsor when you said that the limitation of marriage -- justice breyer: it wasn't a right of privacy. what i said was that the right to be married is as basic a liberty, as basic a fundamental liberty, not the right of privacy, the right to be married, which has existed for all of human civilization, that that is the right which is fundamental. and, therefore, when a state offers that to almost everyone but excludes a group i'm just repeating myself, but that i want that question answered to the best of your ability please. mr. bursch: i'm using right to

privacy interchangeably with the fundamental right that you're speaking about. and in windsor, this court said that the limitation of marriage to opposite-sex couples has always been thought to be fundamental. and so under the glucksberg test, that's dispositive. now, you could change that -- justice breyer: all right. suppose i don't accept, for argument's sake, your notion that the right of privacy and the right to be married are the same thing. ok. now, we'll deal with my hypothetical, please. and my hypothetical is they are different things. mr. bursch: sure. justice breyer: and on that assumption, i would like to know what you think of the argument. mr. bursch: i think windsor compared with glucksberg is dispositive on that because the limitation on the fundamental right -- justice sotomayor: i, you know the problem is that i don't actually accept your starting premise. the right to marriage is, i think, embedded in our constitutional law. it is a fundamental right. we've said it in a number of cases.

the issue is you can't narrow it down to say, but is gay marriage fundamental? has black-and-white marriage been treated fundamentally? the issue was starting from the proposition of, is the right to marry fundamental? and then is it compelling for a state to exclude a group of people? mr. bursch: and, justice -- justice sotomayor: and that, for me, is as simple as the question gets. mr. bursch: justice sotomayor, i'm not arguing with you or justice breyer about how broadly or narrowly we should be defining the fundamental marriage right. i'm simply pointing out that under this court's long-established precedent in the fundamental rights area, which is designed to create a balance where federal courts aren't always interfering with the state democratic process that in windsor, you already answered that question. it doesn't matter how broadly or narrowly we define it. what's been fundamentally understood as a limitation is the opposite sex nature of

marriage. justice roberts: counsel, i'm not sure it's necessary to get into sexual orientation to resolve the case. i mean, if sue loves joe and tom loves joe, sue can marry him and tom can't. and the difference is based upon their different sex. why isn't that a straightforward question of sexual discrimination? mr. bursch: two reasons. all of this court's landmark precedents in this area in sexual discrimination law have always involved treating classes of men and women differently. and that's not what we have here. but even more fundamentally than that, this court has recognized in nguyen v. ins that it's appropriate to draw lines based on sex if it's related to biology. and if you'll indulge me just for a minute, the nguyen case really is important here. you'll recall that's the case where you had a law that determined citizenship of children born to divorced or unmarried individuals overseas. and the law said if it was the child of a citizen mother, then they automatically had citizenship, but if it was the father, then the father had to

one, prove paternity and, two, make child support payments up to age 18. and that's an obvious sex discrimination. and the court said -- justice ginsburg: well, the court, the court, the court's rationale for that was we know who the mother is. we're fearful that the father is claiming to be the father for some benefits that he's going to get from that status, but we can't be sure he is the father. mr. bursch: right. justice ginsburg, that was the justification for the prove the parenthood. but i would like to quote from the opinion about the second interest, the child support. the court said that the government had an important interest in ensuring an opportunity to have a meaningful parent-child relationship between that biological father and a child. and the law substantially advanced that interest, and this is why, and i'm going to quote. "it is almost axiomatic that a policy which seeks to foster the opportunity for meaningful parent-child bonds to develop

has a close and substantial bearing on the governmental interest in the actual formation of that bond." and that is the exact same interest that the respondents are advancing here when they talk about the definition of marriage, which from -- justice ginsburg: it's not it in the nguyen case, the father could get the status of a parent. he just had to do some things that the mother didn't have to do. it wasn't difficult. here it's a total exclusion. and in the nguyen case, the father was complaining that he shouldn't have to do anything other than what a mother did and the court said, yeah, you do have to do something. it's not much. mr. bursch: but the gist of the court's opinion, justice ginsburg, was that the state had an interest in the biological father-child bond, not only improving it, but also ensuring that it sustained. it advanced the exact same interest that the states have when they try to inextricably bind kids to their biological

moms and dads. and if you change that meaning over the long haul, it has consequences. you know, i started to say a few minutes ago that the out-of-wedlock birth rate in this country has gone from 10% to 40% from 1970 to today. and i think everybody would agree that that's not a good result for children. and to the extent that you're changing the meaning of marriage -- justice sotomayor: but that wasn't changed because of the recent gay marriages. mr. bursch: no. i'm not saying that at all. justice sotomayor: in massachusetts, we've got data that it's the rates have remained constant since they changed their laws. mr. bursch: right. but as several justices have noted, you know, that's a very short time frame. the whole idea of same-sex marriage -- justice kennedy: but you're the one that brought the statistic up, and under -- mr. bursch: right. but listen -- justice kennedy: and under your view, it would be very difficult for same-sex couples to adopt some of these children. i think the argument cuts quite

against you. mr. bursch: well, what i'm talking -- justice kennedy: and it goes back to the basic point where you began where you had some premise that only opposite-sex couples can have a bonding with the child. that's that was very interesting, but it's just a wrong premise. mr. bursch: no. that's not my premise. the premise is that we want to encourage children to be bonded to their biological mother and father. we don't deny at all disagree at all that same-sex couples can be bonded to their children. we hope that's the case. justice kagan: well, you see this is what i think is difficult for some people with your argument, is that it's hard to see how permitting same-sex marriage discourages people from being bonded with their biological children. so if you would explain that to me. mr. bursch: because if you're changing the meaning of marriage from one where it's based on that biological bond to one where it's based on emotional commitment, then adults could think, rightly, that this relationship is more about adults and not about the kids. not the case with the plaintiffs in this case. we all agree that they are bonded to their kids and have their best interest at heart. but when we're talking about

justice kennedy, over decades, when laws change, when societal views on marriage change, there are consequences to that. and what this comes down to is whether you not whether you agree or disagree with me or a reasonable voter on when that could happen. it's whether, in drawing these policy lines you know, every marriage definition excludes and includes some people. you know, the possible harm is when you change that definition, is that something -- justice breyer: it's the same point. what directly is your response to the fact that if we assume a basic purpose of marriage is to encourage an emotional and rearing bond between parents and children, that allowing gay people to marry will weaken it? after all, some nongay couples have children, many, and some don't. and some gay people marry and have children, and some don't. so what's the empirical connection? that's what i have a problem with in your argument.

mr. bursch: justice breyer, it's relatively simple. if you delink marriage from creating children, you would expect to have more children created outside the bonds of marriage. and a reasonable voter that's government conduct, right? if right now, take a -- justice breyer: what's the empirical part of what you just said? if you believe that marriage is you i just heard you say it, but i didn't follow it. mr. bursch: right. because you're changing slightly the state's interest. you're talking about the state's interest in bonding parents and children generally. and if that was the interest that motivated this definition to come into being, there would be a different answer to that. just like if -- justice breyer: but i've never heard of a state that said, it is our state policy that we don't like adoption. i've heard of many states who say it's very important to treat adopted children the same way

that you treat natural children. i've never heard the contrary. mr. bursch: yes, we agree. justice breyer: so if your argument depends upon that, i'm stuck. mr. bursch: let me be very clear about that. we love adoption. adopted parents are heroic. there you are talking about children who have, for whatever reason, death, disability, abuse, have already been separated from their biological mom and dad, and so when we're talking about adoption, that's an entirely different social issue that gets solved with different state interests. what we're talking about here is that world where there is no marriage -- justice kagan: but, you know they are connected, right? because if you think about -- mr. bursch: oh, they're related. sure. justice kagan: if you think about the potential who are the potential adoptive parents, many of them are same-sex parents who can't have their own children, and truly want to experience exactly the kind of bond that you're talking about. so how does it make those children better off by preventing that from happening? mr. bursch: well, we allow someone regardless of their sexual orientation to adopt. that's, again, a very different

-- justice kagan: yes. but you, yourself, are saying that the marriage, the recognition of marriage helps the children, aren't you? i mean, you'd rather have the whole basis of your argument is that you want children in marital households. mr. bursch: correct. we want it to be the glue. that's correct. justice kagan: more adopted children and more marital households, whether same sex or other sex seems to be a good thing. mr. bursch: well,that's a policy argument, and reasonable people can disagree simply and compassionately. justice kagan: well, i'm just asking based on your policy how it's not a good thing. i'm not trying to put words in your mouth. i'm just saying if it just seems to me inexplicable given what you've said are your policy interests. mr. bursch: because if you change the societal meaning of what marriage is and society has already started to move away from what we always understood marriage to be, that linkage between kids and their biological mom and dad. the more that link is separated, the more likely it is that when you've got an opposite-sex couple, that link will not be

maintained, because it's more adult-centric, and it's less child-centric. you've got more kids being raised without their biological mom and dad. you have more kids being raised without both parents, you know typically, without a father, though that's not always the case. and it's not unreasonable for the people in thinking about the possible consequences of changing a definition, which has existed, as justice kennedy said, for millennia, might have real consequences. to say otherwise is to say that it's irrational for a person to think that changing an idea about something will have no effect about on how people think about that idea. justice ginsburg: we have changed our idea about marriage is the point that i made earlier. marriage today is not what it was under the common law tradition, under the civil law tradition. marriage was a relationship of a dominant male to a subordinate female. that ended as a result of this court's decision in 1982 when louisiana's head and master rule

was struck down. and no state was allowed to have such a marriage anymore. would that be a choice that a state should be allowed to have? mr. bursch: no. justice ginsburg: to cling to marriage the way it once was? mr. bursch: no. absolutely not, because there the state didn't have a legitimate interest in making anyone subservient to anyone else. but here the state's entire interest springs out of the fact that we want to forever link children with their biological mom and dad when that's possible. and, you know, i want to get back to this point of line drawing, and the marriage definition that the plaintiffs and the federal government proposed. you know, and how, no matter where you draw the lines they're going to leave someone out, too. and what they are asking you to do is to take an institution which was never intended to be dignitary bestowing, and make it dignitary bestowing. that's their whole argument. and when you do that, tens of thousands of other children who don't meet their definition will likewise be left out and suffer those exact same dignitary harms.

when you're talking about a spectrum of marriage definitions, different places to draw the line, and potential harms on both sides, that is the quintessential place for the democratic process to work. and there's another harm -- justice kennedy: just in, just in fairness to you, i don't understand this not dignity bestowing. i thought that was the whole purpose of marriage. it bestows dignity on both man and woman in a traditional marriage. mr. bursch: it's supposed to -- justice kennedy: it's dignity bestowing, and these parties say they want to have that that same ennoblement. mr. bursch: sure. justice kennedy: or am i missing your point? mr. bursch: i think you're missing my point. if we go back to that world where marriage doesn't exist and the state is trying to figure out how do we link together these kids with their biological moms and dads when possible, the glue are benefits and burdens, but not necessarily dignity. you know, dignity may have grown up around marriage as a cultural thing, but the state has no interest in bestowing or taking away dignity from anyone, and

certainly it's not the state's intent to take dignity away from same-sex couples or from anyone based on their sexual orientation. justice kennedy: well, i think many states would be surprised with reference to traditional marriages, they are not enhancing the dignity of both the parties. i'm puzzled by that. but you have another point to make. mr. bursch: well, the main point there is the state's don't intend to bestow dignity, but if you turn it into a dignity bestowing institution, then other family structures and children who are excluded from their definition would suffer a dignitary harm. you know, so you can't draw the line there. and when you're talking about balancing harms and the importance of letting people decide the most fundamental of questions, how do we define marriage in our society, it has other, you know, important things to think about as well. you know, one of those is that when people have to act through the democratic process, it forces neighbors to sit down and civilly discuss an issue and try to persuade each other through reason, love and logic. and we have already seen that happen in eleven states, and if you read some accounts, that could happen in many more very

quickly. when you enact social change of this magnitude through the federal courts, it's cutting off that dialogue and it's saying one group gets their definition and the other is maligned as being irrational or filled with animus. and that's not the way that our democratic process is supposed to work and there are long-term harms to our country and to that fundamental liberty interest to govern ourselves. all the things that this court talked about in the schuette decision, if you take away that dynamic, if it's a court-imposed definition as opposed to one enacted to the people through the democratic process. justice kagan: of course i mean, of course, mr. bursch, we don't live in a pure democracy. we live in a constitutional democracy. and the constitutional the constitution imposes limits on what people can do and this is one of those cases we see them every day where we have to decide what those limits are or whether the constitution speaks to something and prevents the democratic processes from operating purely independently isn't that right?

mr. bursch: it is right. but, justice kagan, as we discussed in our brief and as we've seen in the argument here today, you know, there isn't a constitutional limit that tells people, one, the marriage definition that they've had for millennia is so irrational that it's unconstitutional. we haven't seen that under this court's sex discrimination jurisprudence that these laws shouldn't should be struck down. under the fundamental rights doctrine, windsor already resolved that -- justice kagan: no, but that's the question, is whether there are these equality limits or whether there are these liberty limits. so let's go back to the liberty limits that you were just talking about. mr. bursch: sure. justice kagan: now, the right to marry. we've had we had loving. we had zablocki. we had turner. in all of these cases what we've talked about is a right to marry. we didn't try to define the right more particularly -- is there a right to interracial marriage? is there a right to marry if you're a prisoner? we just said there's a right to marry, that is fundamental and that everybody is entitled to it

unless there's some good reason for the state to exclude it exclude them. so why shouldn't we adopt the exact same understanding here? mr. bursch: well, you walked through those same cases that you just mentioned, you know skinner, maynard, griswold loving, zablocki reemphasize loving itself every single one of those talked about marriage in the context of men and women coming together and creating children, procreative interest. justice kagan: well, they were dealing then with men and women coming together, but the question was, well, there might be a black woman and a and a black man or a white woman or a black woman and a white man and there was no inquiry into whether that was a traditional form of marriage. if there had been such an inquiry in this country, they would have come up pretty short. mr. bursch: right. and historically, that wasn't part of the tradition, and more importantly, invidious discrimination -- justice kagan: historically, it was not a part of the tradition, that's right. and the court said --

mr. bursch: can i finish the answer? justice kagan: irrelevant that that's not a part of the tradition because -- mr. bursch: right. justice kagan: because there's no good reason for it not to be part of the next tradition. mr. bursch: because invidious discrimination based on race had absolutely nothing to do with the states' interest in linking children to their biological -- justice kagan: but loving was very clearly, loving was very clearly not just a racial case that it also was a liberty case? mr. bursch: yes. justice kagan: and indeed, loving was exactly what this case is. it's a case which shows how liberty and equality are intertwined, wasn't it? mr. bursch: no. because in loving, if the couple could not get married, they could not have -- they could not enjoy private intimacy at all because it was subject to criminal prosecution and jail time. and in fact, all of these cases that we've been talking about where this court recognized a fundamental right to marriage, there were other laws that prohibited nonmarital cohabitation -- justice sotomayor: well, what did that have to do with prisoners? if the states' interest is in fostering procreation between

natural parents, the it seems to me that the prison who at issue did that. it said you can get married if there's a child on the way. and that would foster the -- or promote the interest. we, instead, said, that's not enough. the fundamental right to marry does bestow an important connection that we can't deprive the prisoner of, even if the prisoner at least at the moment and presumably those serving life sentences, have no chance of procreation. mr. bursch: justice sotomayor, as you're well aware, this court actually decided two prisoner cases. one was taylor, the one i think you were referring to. the other is butler. this court in taylor said even someone in prison who has an expectation of getting out someday has a right to consummate their marriage. in butler, you said when someone's serving a life sentence, it's appropriate for the state to deny them the opportunity to marry because

they never had that opportunity. so even there, you were tying the state interest that we're asserting here to marriage. and let let's take away all laws regarding cohabitation and intimacy outside of marriage so that there is no criminal conduct, the underlay for all those things. if the state today decided to have no marriage, as some states have proposed, that wouldn't violate a fundamental right. the fundamental right at stake in those cases was the right to be left alone, not the right, as chief justice roberts intimated in the first part of this argument, to force the government to come into your home and recognize something and to give you benefits. those are two very different things. and you can draw the analogy to the abortion context. and i'm reluctant to bring that up, but, you know, in roe v. wade and casey, this court says the government cannot interfere in that private choice. that's a fundamental right. in maher, the court says but a woman cannot force the government to come participate in that by paying for it. likewise here.

lawrence said the government cannot interfere in private, intimate conduct. our position is that the court cannot, as a constitutional matter, say but yes, you can force the state into these relationships by forcing them to recognize and give benefits to anyone. that's not the way that our fundamental rights doctrine works. so, justice kagan, you know, to get back to your point again about how the constitution does put limits, there haven't been any identifiable limits here that that defeat the states' interest. you would have to somehow change one of those doctrines. you'd have to change your fundamental rights doctrine. you'd have to change equal protection doctrine. and when you change those, you also change the balance between the federal courts and the people voting in the democratic process. justice kagan: see, to me it seems as though you are doing something very different that we've never done before, which is you are defining constitutional rights in terms of the kinds of people that can exercise them. and i don't think we've really ever done that. where we've seen a constitutional right, we have

not defined it by these people can exercise it, but these people can't, especially in a case where the claims are both rights based and equality based. i mean, it would be like saying in lawrence, well, there's only a right to intimate activity for heterosexual people and not a right to intimate sexual activity for gays and lesbians. and, of course, we didn't do that. once we understood that there was a right to engage in intimate activity, it was a right for everybody. mr. bursch: absolutely. but that's the state's whole point, is that we're not drawing distinctions based on the identity, the orientation, or the choices of anyone. the state has drawn lines, the way the government has always done, to solve a specific problem. it's not meant to exclude. justice kagan: well, it must be -- mr. bursch: it's not meant to take away dignity. justice kagan: it must be -- mr. bursch: but that's why you're drawing distinctions based on sexual orientation in these laws. oh, gosh, no, because the state doesn't care about your sexual orientation. what the state cares about is that biological reality.

justice kagan: i'm not asking about, i'm not asking about your reasons and whether you have any or not. but whether you have any or not, you are drawing distinctions based on sexual orientation. that's what that's what these laws do. mr. bursch: no. a statute that facially classified based on sexual orientation would look very different. what these statutes do is they have disparate impact, and you would have to demonstrate them under washington v. davis and feeney that there's some animus that motivates this. and this court has said repeatedly in ling and o'brien and other contexts -- justice ginsburg: it is not to start an impact. it's leaving a group out altogether. it's not that more of this group and less of that group. mr. bursch: right. but as you said in bray v. alexandria, a 100% impact doesn't necessarily mean animus. we still have to determine a discriminatory intent. justice kagan: what did what did we say in bray? something about if you prevent people from wearing yarmulkes, you know that it's discrimination against jews. isn't that what we said in bray? same thing here. mr. bursch: the bray v. alexandria case that i was talking about was the one that

affected abortion and your ability to have that, which on its surface affects 100% of women. justice kagan: sorry, the case that i'm talking about said what i said. mr. bursch: right. justice breyer: should i read anything other than i'll certainly go back and read windsor again and i'll certainly go and read glucksberg again. i do recall the cases, at least generally, and i don't believe there's anything in those cases that says the basic liberty or right to be married is a right that extends only to opposite-sex couples. those weren't really issues in the case as they are here, so i'm surprised if this court actually wrote that, but if it did write that and you can immediately call that page to mind, i'll doubly look at it. and i just doubt it's there, but i'll look at it. mr. bursch: i apologize for not having the page cite, but -- justice breyer: no, no. that's quite all right. i'll read the whole opinion. mr. bursch: yeah. you will find in windsor that the court majority said it's the limitation of marriage to opposite-sex couples that has always been thought fundamental. justice breyer: it's the limitation, fine. ok. mr. bursch: yes. you know, so what we're talking about here is having to --

justice scalia: well, that was then and this is now. justice breyer: how could the limitation -- has the fundamental right has to be a right to marry and you said it's the limitation -- mr. bursch: this court acknowledged -- justice scalia: did justice breyer join that opinion that said that? mr. bursch: i believe he did. justice scalia: my lord. well, i -- justice breyer: sometimes, you know, context matters. i'll go in. mr. bursch: if i could briefly continue. justice roberts: sure. justice breyer: i'm surprised we have this case in front of us if that i mean, if it's been so clearly decided, but -- justice roberts: do you want wrap up, counsel? mr. bursch: i do want to wrap up. your honors, these are obviously very emotional issues where reasonable people can disagree. this court has never assumed that people have act out of animus when they're voting in the democratic process. the states generally, michigan specifically, has no animus. it doesn't intend to take away dignity from anyone. we respect all parents, and we hope that they love their children. but this court taking this important issue away from the people will have dramatic impacts on the democratic process, and we ask that you affirm. justice roberts: thank you

counsel. ms. bonauto, you have three minutes remaining. ms. bonauto: first, i just want to say that the idea that the ideas of marriage will change is a false dichotomy. right now, different-sex couples can choose to marry and rear children. they can choose to marry at 70 or 90 because of their commitment to one other. we honor both marriages. it is only same-sex couples who are foreclosed from marrying under either vision. second, we agree that these restrictions are, in fact, linked to gender. there's a facial classification here, and they are sex linked in an additional way, and that is ideas about what is a proper relationship for a man to have a real man or a real woman, and that is obviously not with a person of the same sex. i hear that michigan loves adoption, and, in fact, michigan has placed intensely vulnerable children with these petitioners who have nurtured them to a healthy childhood. does michigan deny the marriage because they didn't conceive those children together, when michigan would let other adoptive parents who are a different-sex couple marry? no.

michigan is drawing a line because it does not approve of the adult relationship, no matter what the protestations they follow. next, we hear a line it's not disrespectful because it's drawn based on biology. i have to say one casualty of the marriage litigation is an impoverished view of what is marriage and what is the role of biological procreation. the state's entire premise here is that if same-sex couples marry, then different-sex couples won't and have their children in a marriage. those two could not be further apart. people make their own decisions. it is beyond attenuated. and the idea also that there are other people who raise children and good for them, it's something, of course, that i hope policymakers would support. but it's adult relationships that we're talking about at the foundation here are different adult relationships, and telling same-sex couples who have made that commitment to one another and have committed to raising

children that they can't is what is stigmatizing. and then, if i may, my last point is that the only way i can really understand michigan's points about procreation and biology and so on is when i look, for example, at page 31 of their brief. and they say that what they care about is people who have children together staying together and providing a long-term, stable situation for their children. that interest applies full force in this context, because by denying marriage to same-sex couples, you are denying not only the protection for the adults, which is independently important, you are denying those protections and that security that would come from having married parents. so with that, thank you. justice roberts: thank you counsel. the court will take a brief break and return to the bench in

five minutes for argument on the second question presented. >> the supreme court wrapping up part one on arguments of same-sex marriage. adjusting the question of does the 14th amendment recognize - require states to recognize same-sex marriage. the next cases involved in cases in ohio, kentucky, and tennessee. the focus was on whether the 14th amendment required states to recognize marriages legally performed in other states. now back to oral argument at the supreme court. chief justice roberts: we'll now hear our argument on the second question presented in this case. mr. hallward-driemeier. mr. hallward-driemeier: mr.

chief justice, and may it please the court, the question 2 petitioners are already married. they have established those enduring relationships, and they have a liberty interest that is of fundamental importance to these couples and their children. a state should not be allowed to effectively dissolve that marriage without a sufficiently important justification to do so. these petitioners have built their lives around their marriages, including bringing children into their families just as opposite-sex couples have done. but the nonrecognition laws undermine the stability of these families, though the states purport to support just such stability. justice alito: i was somewhat surprised by the arguments you made in your brief because they are largely a repetition of the arguments that we just heard with respect to question 1. i thought the point of question 2 was whether there would be a an obligation to recognize a

same-sex marriage entered into in another state where that is lawful even if the state itself, constitutionally, does not recognize same-sex marriage. i thought that's the question in question 2. is am i wrong? mr. hallward-driemeier: it is the question in question 2, and this court's decisions establish that there is not only a right to be married, but a right to remain married, that there is a protected liberty interest in the status of one's marriage once it has been established under law. justice scalia: even if that marriage is not lawful under the receiving state's law, right? mr. hallward-driemeier: that's right. there is definitely -- justice scalia: is that right? no matter i mean, suppose well let's say someone gets married in a in a country that permits

polygamy. does a state have to acknowledge that marriage? mr. hallward-driemeier: well, of course the state could assert justifications for not doing so, and i think there would be justifications -- justice scalia: ok, so -- mr. hallward-dreimeier: for not recognizing such -- justice scalia: what would the justification be? that it's contrary to the state's public policy, i assume, right? mr. hallward-driemeier: well no, your honor. i think that the justification would be that the state doesn't have such an institution. the a polygamous relationship would raise all kinds of questions that the state's marriage laws don't address. justice scalia: well, it would be the same argument. we don't have such an institution. our marriage in this state which we constitutionally can have because the second question assumes that the first question comes out the way the united states does not want it to come out, the state says we only have the institution of heterosexual marriage. we don't have the institution of same-sex marriage. mr. hallward-driemeier: no. the institution is the institution of marriage, and the experience of those states -- justice scalia: well, you're saying that, but the state doesn't. the state says the only institution we have is

heterosexual marriage. mr. hallward-driemeier: the point i'm making, your honor, i think is demonstrated by what has happened in those states where, by court order, states have had to permit same-sex couples to marry. all that has happened under their laws is that they have had to remove gender-specific language and substitute it with gender-neutral language. justice sotomayor: now, could i could i because i don't if you want to finish answering justice scalia's -- mr. hallward-driemeier: i was going to say that that plural relationships raise all manner of questions that are not addressed by this state's current marriage laws. justice alito: what if it's not a plural relationship? what if one state says that individuals can marry at the age of puberty? so a 12-year-old female can marry. would a state would another state be obligated to recognize that marriage? mr. hallward-driemeier: i think probably not. but the state would have, in that instance, a sufficiently important interest in protecting the true consent of the married person. and most states don't recognize minors' ability to consent, certainly not to something that

is as important as marriage. but what we see, in fact, is that, quite in contrast to the nonrecognition laws at issue here, the states do recognize the marriages of person who, by age, would not have been able to marry within their own states. that is the longstanding practice of all of the states, precisely because of the abomination, as it was referred to in the old treatises, of the notion that a persons could have a different marital state in some jurisdictions than others. justice sotomayor: sir, how about the consanguinity situation? virtually all states would recognize cousins through marriage getting married, but there's at least one state that doesn't, right? mr. hallward-driemeier: well, i -- justice sotomayor: are you saying that that state is -- mr. hallward-driemeier: i think that the that the constitutional test is the one that the court set forth in the zablocki, which is does the state have a sufficiently important interest not to recognize it? and certainly in the case of

incest, the state does have a sufficiently important interest. justice sotomayor: this is not incest. they're not biologically tied. mr. hallward-driemeier: well the states that i'm aware of that have the rules against cousin marriage do so under their incest statutes, and they simply define incest in a broad way that would encompass cousins to marry. at some point, certainly the familial relationship is too extenuated that i don't think the state would have a sufficiently important justification. justice kennedy: but justice alito's question points out, the assumption of his hypothetical is and of the way these cases are presented, is that the state does have a sufficient interest so that you need not allow the marriages in those in that state. so there is a sufficient interest, under our arguendo assumption here, to say that this is not a fundamental right.

but then suddenly, if you're out of state it's different. why should the state have to yield? mr. hallward-driemeier: well, at the very least, you would have to analyze differently the interest that the state might assert for not allowing couples to enter marriage versus the interest that they assert as related to a couple who is already married. for example, kentucky has asserted that its interest in only permitting opposite-sex couples to marry is to increase the birthrate. well, now apply that theory to same-sex couples who are already married. they are already married in the states where they were married. they are already married in half the states in the country. kentucky would have the court believe that it is a sufficiently important interest to have that couple disregard their existing marriage vows and obligations to each other to marry someone else in kentucky in order to procreate biologically even though the couple may already have children together. that, i would dare say, is not a rational justification, much

less a sufficiently important one. justice scalia: well, i think i think what kentucky is saying is that the long-term effects of having same-sex couples in kentucky will be, which you didn't agree with, but what counsel for respondent argued in the prior case, will be a reduction in heterosexual marriages and a reduction in the number of children born to those marriages. i mean, that -- mr. hallward-driemeier: your honor, this court has rejected that type of speculation as a basis for drawing these distinctions before as it did in loving. the state in loving argued that it was too soon to know what the effect of interracial marriages would be and what the stigma would be on their children if not the biological -- justice scalia: but we will not have rejected it if we come out the way this question presented assumes we have come out. mr. hallward-dreimeier: well the state -- justice scalia: mainly, saying that it's ok for a state not to permit same-sex marriage. mr. hallward-driemeier: the

state asserts that it has an interest in the stability that marriage provides for children. that interest does not justify extinguishing marriages that already exist. justice ginsburg: may we clear this one thing. if the petitioner prevails in the first case, then the argument is moot, right? mr. hallward-driemeier: that's absolutely right, your honor. justice ginsburg: so you are supposing a situation where the plaintiffs do not prevail, and so a state can retain its ban on same-sex marriage. the question is has does it have to recognize marriage from out of state? would it make any difference if the couple came from the state where there is a ban on same-sex marriage, goes to a neighboring state that allows it, and then comes right back home again? mr. hallward-driemeier: no, your honor. i don't think that there would be such a distinction. and, in fact, none of these four

states draws that kind of line that your honor presupposes. and that's one of the points that's so important here, is that as the court observed with respect to doma in windsor, the nonrecognition laws here are a stark departure from the state's traditional practice of recognizing out-of-state marriages even though they could not have been celebrated within the state. it's precisely that circumstance where the laws diverge that the issue arises. and the three states that have this issue, tennessee, ohio, and kentucky, are, between them, able to identify only 5 instances in which they did not recognize a marriage that was valid outside the state, even though it could not have been celebrated inside. and those instances are incest which we think the state would have sufficiently important justification not to recognize miscegenation laws, not a precedent on which i think the court would want to rely in this instance, or other interests

that i think probably would not survive today, such as the rule against allowing a divorced person to remarry. so they're and more importantly, the most recent of those cases is from 1970. so the rule that the states cite about their ability to disregard, to effectively dissolve marriages that already exist, around which people have already begun to build their lives, is less applied than the federal government's own authority to define the -- justice roberts: yes. but, again, i think you're avoiding the presumption on which we're starting, on the assumption, which is that the state's policy for same supporting same-sex marriage is sufficiently strong, that they are they can, as a matter of public policy, prohibit that in their own state. and yet you're saying it's somehow so much weaker when you're talking about marriages from other states. mr. hallward-driemeier: i think

there are a couple of points that i'd like to make in order to distinguish this situation from the question in the first case. in the first case, it was very significant that respondents' counsel was emphasizing that he thought it was merely rational basis scrutiny that would apply. but that was to the question of whether people should be allowed to marry in the first instance. our petitioners on question 2 are already married. we know from windsor, because the court held, that once married, a couple has a constitutionally protected liberty interest in their marriage. we also know from windsor that where a sovereign disregards that marriage in a way that would be extraordinary and out of character with tradition, that that requires, at the very least, careful consideration. and that's -- justice roberts: it certainly -- mr. hallward-driemeier: what we have here. justice roberts: it certainly undermines the state interest that we would, assuming arguendo, have recognized in the first case, to say that they must welcome in their borders

people who have been married elsewhere. it'd simply be a matter of time until they would, in effect, be recognizing that within the state. mr. hallward-driemeier: well -- justice roberts: because we live in a very mobile society, and people move all the time. mr. hallward-driemeier: and justice roberts: in other words, it would kind of it one state would basically set the policy for the entire nation. mr. hallward-driemeier: well, of course, there would be many fewer such couples raising children within their borders than heterosexual couples who are raising children who are not biologically linked to them. i have to say that i think that the arguments that the state has made are so over and underinclusive at the same time, that they leave the -- the feeling that it can only be pretext. and we know that that's true because the state not only can't draw the lines that they are purporting to, they don't draw the lines that they're would suggest, and they would never draw the lines that they afford to -- justice roberts: wait. i i've lost you there. what lines are you talking about?

mr. hallward-driemeier: a line for example, that limits marriage to those couples who are able to procreate biologically without any assistance. the states don't draw those lines. the states have laws that treat adoptive relationships with the same legal effect as biological ones. they actually have laws that further support and give greater stability 7 justice sotomayor: i thought your -- mr. hallward-driemeier: to marriages that use -- justice sotomayor: your argument -- mr. hallward-driemeier: assisted reproduction. justice sotomayor: would be different. i thought that the states had never categorically passed a law declaring that a particular kind of marriage was against public policy. mr. hallward-driemeier: that that is certainly another way in which 19 justice sotomayor: no one of the four states had ever done that? mr. hallward-driemeier: they have never done that. they've never -- justice sotomayor: until the doma issue came up. mr. hallward-driemeier: that these laws are out of character, unprecedented in the language of romer in many respects. justice alito: you're saying that -- justice sotomayor: well, they -- justice alito: you're saying

that the laws in some states the states that you're referring to that recognize only opposite-sex marriage are pretextual? mr. hallward-driemeier: the their nonrecognition laws are pretextual, yes, because the longstanding practice of these states is to recognize marriages that are validly celebrated elsewhere precisely because of -- justice alito: well -- mr. hallward-driemeier: the fundamental -- justice alito: other than the distinction we have the distinction between same-sex marriage and opposite-sex marriage. what is the next most dramatic variation that exists in the marriage laws of the states? mr. hallward-driemeier: well, at the time, certainly interracial marriage when -- justice alito: at the present time, what is -- mr. hallward-driemeier: well justice alito: most the next most dramatic difference? mr. hallward-driemeier: well, i think that, if i could, the antimiscegenation laws actually are the closest analogy, but what's different between them if i could because it goes to justice sotomayor's question and then i'll try to answer yours is justice alito: well, i had asked a simple question. at the present time, what is the next most dramatic variation in the marriage laws of the states? mr. hallward-driemeier: it probably is age. justice alito: and what is the what

what's the range? mr. hallward-driemeier: i think it goes from 13 to 18. and but as i said before, the tradition of the states the issue does not come up that much, but the tradition of the states is to recognize a marriage that was entered into by someone of an age that could not have been entered within the state, because of the nature of the marriage once it's established, recognizing that the fundamental nature of that relationship is not one that the state should put asunder. justice alito: well, i thought you answered me earlier that a state could refuse to recognize a marriage in contracted in another state where the minimum age was puberty. mr. hallward-driemeier: well they could, and i do believe that if, in the individual case, it was shown that it was because of lack of consent, the state could decide not to recognize the marriage. but with respect to the categorical nature -- justice ginsburg: it would have to be shown, i think, the

presumption would be in such a state that someone age 13 can't consent. mr. hallward-driemeier: the age 13, i think probably you're right, but if it is a matter of 15 instead of 16, that the courts probably would recognize it, especially if, in reliance on their marriage, the 17 the couple had already conceived of a child, it would do no one any good to destroy that marriage and the stable environment that it might provide for the children, just as it does no one any good it certainly doesn't advance the interests of the children of opposite-sex couples to destroy the marriages that provide stability to the children of same-sex couples who are already married under the laws of other states. justice roberts: i think your argument is pretty much the exact opposite of the argument of the petitioners in the prior case. the argument that was presented against them is, you can't do this, we've never done this before, recognized same-sex marriage. and now you're saying, well, they can't not recognize

same-sex marriages because they've never not recognized marriages before that were lawfully performed in other states. mr. hallward-driemeier: well what -- justice roberts: you've got to decide one or the other if you win. mr. hallward-driemeier: no, i don't think so at all, your honor. and i think that what's essential and common between us is that we recognize that the marriage that our petitioners have entered into is a marriage. it is that same institution, that same most important relationship of one's life that this court has held out as fundamental -- justice roberts: and maybe -- mr. hallward-driemeier: in other cases. justice roberts: i'm just repeating myself, but we only get to the second question if you've lost on that point already, if we've said states do not have to recognize same-sex marriage as a marriage. so assuming you've lost on that, i don't see how your argument gets you can't say that they are not treating the marriage as a marriage when they don't have to do that in the first place. mr. hallward-driemeier: well, i think that that actually highlights one of the problems of trying to decide the two cases differently, because, of course, deciding against

petitioners on question 1, even if the court decides in favor of petitioners on question 2, would forever relegate those marriages to second class status and would raise all kinds of questions whether those marriages could be subjected to laws that are not quite so favorable as opposite -- justice scalia: you're rearguing question 1 now? is that is that what you're doing? mr. hallward-driemeier: no. no. i'm suggesting, though -- justice scalia: i thought you were. mr. hallward-driemeier: that even a win on question 2 does not fully validate our petitioners' marriages, but certainly we think that the state cannot disregard them cannot effectively dissolve existing marriages without a sufficiently important reason for doing so. this court recognized in the lawrence case that marriage, procreation, family relationships, childrearing are fundamental aspects of autonomy that same-sex couples can enter into, can choose for purposes of autonomy to the same extent as opposite-sex couples, especially

when those couples have done so, have established a marriage, have brought children into -- i'd like to give an example, if i could, because i think that it sort of brings home what's really happening. matthew mansell and johno espejo married in california in 2008. in 2009, they adopted two children. now, in reliance on the protection that is afforded by marriage, mr. espejo was willing to give up his job to give the primary caregiver of their children. mr. mansell is the primary breadwinner. his job in an international law firm was transferred from california to tennessee, and the cost of that transfer for that job for them was the destruction of their family relationships, all that they had relied on in building their lives together. and in support of that, the

states offer exactly nothing. there is no reason that the state needs to disregard that marriage. no reason the state needs to destroy the reliance that mr. espejo has had in giving up his career to look after their children. they are doing everything -- justice scalia: it would have been it would have been the argument made with respect to the first question, namely, that the existence of same-sex marriages erodes, erodes the feeling of society regarding heterosexual marriages. mr. hallward-driemeier: as i said as i said before, your honor, i don't think that that holds up because opposite-sex couples who have no children who may be beyond childbearing years, when they move into these states, their marriages are entitled to respect, and yet they are situated precisely as our petitioners are. our couples, likewise, have marriages. they may not be able to procreate biologically together,

but they are able to procreate through assisted means, through adoption. they bring children into their families just as opposite-sex couples do. and when, in reliance on their own state where they live, they move into these states, that marriage is destroyed. this court relied on federalism, the vertical kind, in windsor to identify something that was highly unusual. in this case, it's horizontal federalism, i think, that identifies something that's highly unusual. as part of a federal form of government in which the states are equal, the states have ceded some form of their authority. and one is to recognize that when another state creates an enduring relationship, encourages people to, in reliance on the protections the law affords, to establish families, that it is not that other states are simply free to

disregard that which those states have created. in the corporate context, once a corporation is established under the laws of one state, that corporation exists in all other states. certainly, the families that our petitioners have established are entitled to at least that same respect. i think that, your honor, it is quite interesting to note that in the first argument, michigan was forced to argue some positions that i think are quite astonishing, that the state could limit marriage to couples who are capable of procreation without assistance or indeed that it could abolish marriage altogether. it's our clients who take marriage seriously. they took vows to each other and bought into an institution that, indeed, as this court has said predates the bill of rights, that is the most important and fundamental in their lives and the state should offer something more than mere pretext

as ground to destroy it. justice ginsburg: the state's rationale is we treat outsiders the same way we treat insiders. mr. hallward-driemeier: well thank you, your honor. they certainly have offered that, but what the state ignores is that these so-called outsiders are already married. the state, it's true, says well, we have same-sex couples in our state, and we don't allow them to marry, so we're going to treat you the same way. well, they ignore that our clients have already formed those relationships, and i think that it would be, in terms of the interests that distinguish between the two questions, it's helpful to think again, perhaps, about heterosexual couples. we don't think that a state could limit marriage to only those couples who are capable of procreation. we don't think it could preclude marriage by women who are 55

but it would be quite a different and distinct constitutional violation for the state to dissolve the marriages of opposite-sex couples when the woman reaches 55. i don't think that that's constitutionally permissible. the states don't do that and, of course they never would do that because the essential protection against arbitrary laws is that the majority has to live under the same laws that they would subject the minority to. and there is no chance that the majority would subject themselves to such a law as that. i'd like to reserve the remainder of my time. justice roberts: thank you counsel. mr. whalen. mr. whalen: mr. chief justice, and may it please the court, the fourteenth amendment does not require states with traditional marriage laws to recognize marriages from other states between two persons of the same sex. justice scalia: what about article iv? i'm so glad to be able to quote

a portion of the constitution that actually seems to be relevant. "full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state." now, why doesn't that apply? mr. whalen: your honor, this court's cases have made clear that the court draws a distinction between judgments between states and the laws of each state. and the reason in part that the court's decisions have said that is that otherwise, each state would be able to essentially legislate for every other state. justice scalia: public acts? it would include the act of marrying people, i assume. mr. whalen: my understanding of this court's decisions as the reference in the constitution to public acts is that each state's laws. justice scalia: so there there's nothing in the constitution that requires a state to acknowledge even those marriages in other states that that are the same. mr. whalen: that's essentially

correct, your honor. justice scalia: really? mr. whalen: under this court's decisions, that's essentially right. there has been under the jurisprudence with regard to allstate insurance and alaska packers and so forth that there's a minimal due process requirement to decline to apply another state's substantive law. justice scalia: we can say the only marriages we acknowledge in new york are marriages concluded in new york, is that possible? mr. whalen: i'm sorry? i don't 3 justice scalia: new york can say the only marriages we acknowledge in new york are those marriages that have been made under the laws of new york. mr. whalen: yes, your honor. justice scalia: really? mr. whalen: if i'm understanding your if i'm understanding your question correctly. justice roberts: what case is that? what case would you cite to support that proposition? mr. whalen: i'm not sure if i understood the question correctly, your honor. justice breyer: he said i mean i already have several cases to read. i might as well get another one. justice breyer: what is the case that holds that the state of new

york has the right to recognize only marriages made in new york? if you marry in virginia, new york has the constitutional right to say, we treat you as if you weren't married, whoever you are. mr. whalen: i did i did misunderstand the question. my understanding of the question was whether new york could decline to recognize an out-of-state marriage that did not comport with new york's law. justice scalia: that's not what i said. justice ginsburg: because it is clear that if the law of the two states is the same, that was used against fedder, the state cannot say we won't apply the other state's law, even though it's the same as our own. mr. whalen: even though it's the same as ours? justice ginsburg: yes. justice breyer: like new york. for example, i happen to know has a law that a federal judge from washington couldn't marry someone. i mean, you can get married to your own wife, et cetera, but you can't marry two other people, but the district of columbia has the opposite law.

so if i marry two people in washington, d.c., and they happen to move to new york, you are saying that new york doesn't have to recognize that marriage because it doesn't comport with the marriage of new york, is that your point? mr. whalen: yes, your honor. i think that's -- justice breyer: and then what case says that? i think there are a few people going to get nervous about this. mr. whalen: my answer is based on essentially this court's decision in nevada v. hall because the state's own law sets its own policy and the other state's law would be in conflict with that state's policy. justice breyer: but here the policy would be we distrust federal judges from outside the state. and even that, they would get away with, in your view, because i'm next going to ask, and what is the difference between that kind of policy and the policy that says, well, we don't recognize the gay couple's marriage for the reason that we fear that if gay couples get married, even if they have children and adopt them, and

even if we allow people who are not gay to get married and they don't have children, despite all that, this policy, which i've had a little trouble understanding, warrants not recognizing it? did you follow that question? it was a little complicated. mr. whalen: i probably did not but i'm going to try to answer. i think the underlying focus is not just that there's a policy but that there's a legitimate policy. and as this court's questions earlier indicated, i proceed now on the assumption that the court has decided the first question in the state's favor, and is determined that, indeed, the state's policy to maintain a traditional man-woman definition of marriage is, indeed legitimate, and we obviously agree that it is, and the court should so decide. so -- justice sotomayor: so you don't see -- justice scalia: but none of this has anything to do with article iv, right? none of this has anything to do with article iv? full faith and credit, right? mr. whalen: it full faith and credit provides the background for the for the states to be

able to assert that, indeed, we have the right to decline to recognize the out-of-state marriage based on the out-of-state justice ginsburg: you're -- mr. whalen: law justice ginsburg: you're making a distinction between judgments full faith and credit applies to judgments. you can't reject a judgment from a sister state because you find it offensive to your policy, but -- mr. whalen: yes, your honor. justice ginsburg: full faith and credit has never been interpreted to apply to choice of law. mr. whalen: yes, your honor. justice ginsburg: that that's the distinction. mr. whalen: yes, your honor. and so, in essence, by deciding whether or not to recognize another state's marriage, the state is deciding whether or not to recognize the other state's law under which that marriage was performed. justice sotomayor: i'm sorry. you don't see a fundamental difference between creating a marriage and recognizing a marriage? you don't think there's any difference in terms of the rights of people?

if states regularly don't say that the prerequisites to marriage in our state are not necessarily against public policy and they have said it for age differences, they have said it for a lot of things, why would the gay marriage issue be so fundamental that that can lead them to exclude a whole category of people from recognition? mr. whalen: it goes, your honor, to the essence of what i think in fact, both questions before the court today get at. and that is that the fundamental notion of what marriage is. and let me answer the question if i could, in this way. the comparison between how states have operated with regard to recognizing or not recognizing marriages before, in other words, before there was any idea of same-sex marriage, can't be compared at all to how

states are responding across the board with regard to the phenomenon of same-sex marriage. and here's the reason: commentators have observed that when all states are on the same page about what marriage is, that's where the place of celebration rule evolved from, that every state had the same definition. every state shared the same interest, and so there was a liberal policy of recognizing marriages from one state to the other because -- justice sotomayor: you think marriage -- justice scalia: that's just not -- justice sotomayor: decrees are closer to laws? mr. whalen: i'm sorry? justice sotomayor: you think marriage decrees are closer to laws than they are to judgments? mr. whalen: i do -- justice sotomayor: i mean, you need to get a judgment to divorce. and i think that, in my mind that makes the decree much closer to a judgment than it does to a law. mr. whalen: i think that the performing of a marriage is closer to law is because, in

essence, when the marriage is performed, all the rights that flow from that state's laws evolve to that couple. and it's different than judgments and so does not deserve the same kind of treatment that judgments would under the full faith and credit jurisprudence, because of the reason that this court drawn that distinction. justice sotomayor: so what is an order under the constitution, or --mr. whalen: i -- justice sotomayor: an act under the constitution that's not a judgment? mr. whalen: i didn't catch the first part of your question, your honor. justice sotomayor: how do you separate out the terms that justice scalia gave you? they're not all judgments. mr. whalen: no, i -- justice sotomayor: three different terms were used, or four different terms were used. mr. whalen: acts, records, and judicial proceedings is what i understand -- justice sotomayor: acts -- mr. whalen: what i recall and that justice sotomayor: records mr. whalen: and my understanding of the court's jurisprudence has been that that refers to laws and records and judgments of another state. and marriages have always been treated as a conflict of law matter throughout all the years

in fact, it gives rise to the entire conflict of law doctrine on which petitioners rely here which is joseph story's commentaries on the conflict of laws. justice roberts: this second -- outside of the present controversy, when was the last time tennessee declined to recognize a marriage from out of state? mr. whalen: any marriage, your honor? justice roberts: any marriage. mr. whalen: 1970 is the last one that i could point to. that involved a stepfather and stepdaughter. i would i would hasten to add, though, because of where what i was starting to describe with regard to how we got to this point, while states were all playing along under the same definition of marriage, what they confronted in an unprecedented fashion was some states changing the rules of the game, if i can extend the metaphor, and so -- justice roberts: well, but they weren't playing along with the same definition. there have always been distinctions based on age and family relationship. so they weren't playing along under the same definition.

and still, despite that, it apparently is quite rare for a state not to recognize an out-of-state marriage. mr. whalen: it was and is quite rare, so long as we're talking about what marriage is, so long as we're talking about the fundamental man and woman marriage. and that and that's my point, is that as soon as states were confronted with the reality that some states were going to redefine marriage or expand the definition of marriage to include same-sex couples for the first time, then it's unsurprising that they would determine, in keeping with their own laws, that they would not recognize those other states' marriages in tennessee. justice alito: this second question puts both you and mr. hallward-driemeier in a very unusual situation, because first of all, we have to assume that this first question has been decided against the petitioner, or we wouldn't get to the second question. so we have to assume that we would hold that a state has a sufficient reason for limiting marriage to opposite-sex

couples. and mr. hallward-driemeier acknowledged that a state could refuse to recognize an out-of-state marriage if it has a very strong public policy against that marriage, if it's a polygamous marriage, if it's a marriage of very young individuals. so the question is whether there could be something in between. so there there's a sufficient reason to for the state to say we're not going to grant these licenses ourselves, but not a strong enough reason for us not to recognize a marriage performed out of state. i suppose that's possible, isn't it? mr. whalen: well, let me answer it this way, and hopefully i'll i'm answering your question in doing so. let me be clear. the justifications that have grown over time and the requirement for a strong public policy reason to decline to recognize a marriage have grown up around the man-woman definition.

our position is that so long as we're talking about a marriage from another state that is not the man-woman definition, that it is simply the state's interest in maintaining a cohesive and a coherent internal state policy with regard to marriage that justifies not recognizing those marriages. otherwise, as the question that was put earlier indicated, any resident of the state could go to another state, get married, come back and demand to have their marriage recognized. justice sotomayor: that happens already. people who are not permitted to be married in a lot of states go and do that, and they come back to their home states, and the home states follow the rule of marriage celebration. mr. whalen: and, again, we're talking about the fundamental distinction between marriage as the states see it, the traditional definition, and the same-sex marriages that other states have -- justice sotomayor: well, they have -- mr. whalen: have adopted. justice sotomayor: the

prerequisites are always a state's judgment about marriage, about what should be a recognized marriage. mr. whalen: but, your honor, the -- justice sotomayor: they make exceptions. mr. whalen: the difference here, i think, is the landscape that we find ourselves in. tennessee, ohio, kentucky, and other states with a traditional definition of marriage have done nothing here but stand pat. they have maintained the status quo. and yet other states have made the decision, and it certainly is their right and prerogative to do so, to expand the definition, to redefine the definition, and then to suggest that other states that have done nothing but stand pat now must recognize those marriages imposes a substantial burden on the state's ability to self-govern. justice ginsburg: it is it is odd, isn't it, that a divorce does become the decree for the nation? a divorce with proper

jurisdiction in one state must be recognized by every other state, but not the act of marriage. mr. whalen: i understand the point, your honor, and, again, i think it falls within the court's recognition of a distinction between judgments and laws. and here i think we're dealing only with laws, and, again, it would allow one state initially -- literally one state, and now, a minority of states to legislate fundamental state concern about marriage for every other state quite literally. that's an enormous imposition and an intrusion upon the state's ability to decide for itself important public policy questions and to maintain particularly when you're talking about recognition. there is an impact that occurs when one state is asked to recognize another state's same-sex marriage because of the

fact that its entire domestic relations policy has been built around the expectation and the presumption that there is a man-woman relationship. that in windsor, this court recognized and observed that marriage is the foundation of the state's ability to regulate domestic relations. and to give you one concrete example that is that it comes up in this case itself. one of the incidents of marriage is the child the presumption of parentage that comes with a marriage. and for the state to be required to recognize another state's marriage where there is a child of that marriage in a same-sex situation would fundamentally alter the state's definition of parentage, which i can tell you -- justice roberts: well, i don't understand your argument. i understand your argument that it's a fundamental public policy

question about whether you're going to recognize same-sex marriage or not. but i don't see the difficulty in following the consequences of that under domestic relations law as treating a couple as married. and it and so the first question is a big step, but after that, it seems to me that the question of how you apply the domestic relations law is pretty straightforward. mr. whalen: well, it that's part of the reason why i wanted to mention this in particular because a large part of the petitioners' focus has been on the impact on the children that are involved. and i think it's important for the court to recognize that in many states and i can tell you in tennessee that the definition of parent has always been biologically based. that marital presumption of parentage has its foundation in biology. it has its foundation in the man-woman relationship. so when and if a state were required to recognize a same-sex marriage and so therefore, change the pronouns and change

the terminology to apply -- justice sotomayor: oh, but you do that for adoptions. what's the problem? mr. whalen: because -- justice sotomayor: this is a really big deal? mr. whalen: it is a big deal, your honor, because you are changing the way the state defines a parent. and in the adoption context, you have to understand adoption and the traditional definition of marriage, they work in tandem. they work together. and as mr. bursch described, the objective with regard to marriage is to link children with their biological parents. when that breaks down, then there's adoption. and so yes, there's an effort to -- justice sotomayor: do you think that a state can fail to recognize the birth certificate of a particular another state? mr. whalen: i'm not -- justice sotomayor: just that. do you think the word "records" in the constitution includes birth certificates? mr. whalen: yes. justice sotomayor: so california

without any reason, no suspicion of fraud, no anything, could it refuse to recognize another state's birth certificate? mr. whalen: i have to admit, your honor, i can't speak to that intelligently. justice sotomayor: records to me has to have a meaning. mr. whalen: record has a meaning. it does, your honor. the reason that i'm hesitant is that i know that there is disagreement in the in the cases about exactly what the impact of that is between whether that just means we have to acknowledge the existence of the record for the evidentiary purposes, or whether the effect of the record has to be acknowledged. and as i stand here i can't speak to it. justice sotomayor: i recognize that that's an issue. mr. whalen: yes, your honor. justice sotomayor: but if a birth certificate were to be a record, don't you think a marriage certificate it's an official act of a state. mr. whalen: well, the marriage certificate -- justice sotomayor: as a record. mr. whalen: certifies and i guess it goes exactly to the point. it certifies the fact that there

was a marriage. i think that the laws that allowed that marriage to occur when they are different fundamentally with the laws of a state like tennessee, preclude the application of that same principle from one state to the other. with regard to the effect of requiring recognition on a state, i think it's important also to consider the fact that the petitioners have complained about the impact that it has when they move from one state to the next with regard to the rights that they enjoyed under the marriage as it was defined in new york, for example, or california. federalism accommodates this situation. it is the strength of our federal structure to accommodate the very difference of viewpoint and the very difference in

approach that this fundamental debate that we're having about same-sex marriage generates. and so it makes all the sense in the world, with respect to that, to allow the federal structure to do what it was designed to do and to accommodate those different points of view. and that is why we asked the court to determine that the fourteenth amendment does not come in and then disrupt that balance and impose a duty on one state to recognize the laws and recognize the marriage of a different state because of the intrusion that it would have on that state's public policy. justice kagan: mr. whalen, just a quick question. mr. whalen: yes, your honor. justice kagan: you acknowledge that if the state loses on the first question, then the state also loses on the second question? it's a fortiori? that's --

mr. whalen: i do, your honor. justice kagan: ok. mr. whalen: yes, your honor. if there are no further questions, we ask you to affirm. justice roberts: thank you counsel. mr. whalen: thank you. justice roberts: mr. hallward-driemeier , you have five minutes left. mr. hallward-driemeier: thank you, your honor. if i may start with the assertion that tennessee law has always rooted parental relations in biology, that is not so. tennessee law and i'm going to quote from chapter 361.1. i mean sorry. it's 68.3.306 referred to on page 15 of our reply. it provides that a child born to a married woman as a result of an artificial insemination with consent of the married woman's husband, the father is deemed the legitimate child of the husband and wife, though the husband has no biological relationship with the child. tennessee, in other words, just as it does with adoption reinforces the bonds of parent and child irregardless of biology, as long as the a parent or as long as the couple is of

opposite sexes. the import of that for real people, like drs. tanco and jesty, is that they, who fell in love and married while in graduate school in new york, as many academic couples, were only able to find a position at a same university in tennessee. they moved there, and dr. tanco has given birth to their daughter in tennessee. now, as a result of the nonrecognition laws, when, as occurred last week, their daughter is hospitalized tennessee would treat dr. jesty not as mom, but as a legal stranger with no right to visit her child, no right to make medical decisions for her. these laws have real import for real people. and although, i think that counsel was suggesting that

federalism and allowing states to make different laws, if you choose to get married in your state, just don't move to ours. that's the cost of federalism. well, sergeant dekoe and his husband, mr. kostura, didn't have a choice. the united states army moved them to tennessee, and given the location of army bases in this country, it's almost a certainty that anyone serving in the army for any length of time will be stationed at some point in a state that would dissolve their marriage as a matter of state law. i want to get back, justice sotomayor, to your comment about categorical and how unprecedented it is, because even in the age of antimiscegenation laws, the states would give effect, for some purposes, interracial marriages such as for purposes of estate, giving out the proceeds after a death or otherwise.

here, however, the state statutes provide that a marriage shall be given no effect for any reason. even jim obergefell's husband's death certificate will not reflect the fact that he was married or the name of his husband. the state has no legitimate interest for denying them the dignity of that last fact regarding his life. the real import of the state's argument is, i believe, this -- that even when same-sex couples are married, they are not, in their view, married for constitutional purposes, that the states can discriminate against these marriages even in ways that the constitution would not permit the states to disregard the marriages of opposite-sex couples. i urge the court not to enshrine