it was remanded in light of roemer and now it's under roemer. so, it does not rely on bours.esn't talk about bours and again, this court, even after lawrence has continued to apply the same -- i have to tell you, we are sometimes perfectly capable of blindly applying cases. i'm not sure i would be willing to say that we did in davis, but that has happened. judge sutton: if you were to lose under either one possibility, a possibility of same-sex marriage and the other possibility is the review which makes life difficult for justifying the law, would a practical implementation problems, you know, with brown you could say the only implementation problem was resistance, but it's a pretty easy rule to implement, right? i guess what i'm interested in from the state's perspective is this may be controversy, there may be resistance, but why is it difficult as a matter of implementation to implement this new rule? mr. lindstrom: so, in other words the outcome were that same-sex marriage is constitutionally protected would it be harder for the states? judge sutton: yeah, what problems

it was remanded in light of roemer and now it's under roemer. so, it does not rely on bours. it doesn't talk about bours and again, this court, even after lawrence has continued to apply the same -- judge daughtrey: i have to tell you that we are sometimes perfectly capable blindly, i am not sure that i would be willing to say that we didn't in davis. but, that has happened. judge of sutton: which makes life very difficult for justifying the law. what are the practical implementation problems? with brown, you could say that the only implement -- implementation process. it is a pretty easy rule to implement. this may be controversial, there may be resistance, that why is it difficult, as a matter of implementation to implement this new role? -- this new rule? mr. lindstrom: what it be harder for the state to implement? i guess, i think that if you are talking about what harms might come from changing -- judge sutton: is it difficult to adjust state laws on marriage, divorce, or is it really very simple? do you now include this new group -- i am not sure exactly how it would al

we see that kind of judgement i think in cases like roemer, lawrence and windsor. okay. so, let me quote justice stevens's famous statement. there is only one equal protection clause. it requires every state to govern impartially. it does not direct the court to apply one standard of review in some cases and a different standard in other cases. these words open justice stevens's fame must concurring opinion in craig versus boren. this is the first case the court applied intermediate to gender based classification. third tier equal protection analysis between strict scrutiny andrx rational basis scrutiny. craig was decided in 1976 at the begin of justice stevens's long and distinguished tenure on the court. with these words he served notice that he was an independent thinker and that he was to be a justice of standards, not a justice of rules. here was a person not going to claim he could avoid making normative judgments in applying doctrinal frameworks or enforcingologynal meaning of the constitution. what does justice stevens mean when he says not withstanding all these

for example, roemer doesn't do anything to undermine the fundamental rights aspect of baker versus nelsonboth questions were presented in baker versus nelson whether there was a due process right and also -- judge daugherty: you don't think lawrence overruling a case that came out just a few years before that indicates a doctrinal development? aaron linstrom: i think that shows a doctrinal development in the area of right to privacy. but i don't know that that necessarily shows doctrinal development in the fundamental right to marry which is public recognng, not a right to privacy. lawrence has decided on a different substantive due process crown and doesn't have anything to say about the fundamental right to marry. judge daughtrey: what about the case that just, that the policy and the laws against ma psychological nation were not deeply rooted in our american society and yet that went by the by? >> the case is primarily about the fact that there was racial discrimination, violation of the protection clause which the supreme court recognized that the primary court component of the 14th a

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