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tv   Key Capitol Hill Hearings  CSPAN  April 28, 2015 8:00pm-6:01am EDT

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foreign relations committee voted for this bill, all ten of them from senator rand paul and senator are rubio and senator johnson, all nine democrats on the foreign relations committee supported this bill as well. all 19 senators on this foreign relations committee represent as wise arange of foreign views as could exist. so i would urge my colleagues on both sides to pause and reflect before supporting amendments that would make this a partisan exercise rather than a prudent use of congressional authority. if they want congress to play a responsible role overseeing any potential deal, this bill gives us that chance. the alternative >> the alternative to this bill is not a better bill. it is a deal without any meaningful congressional input. i have been as critical of iran and distrusting as anyone in the body but if unrelated amendments become attached to the bill i will not support its final
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passage. we have a rare moment for the senate foreign relation committee and the senate as a whole to demonstrate this. and coming together to demonstrates our ability to give constructive input on one of the most important national security issues of the day and strain our divisive influences in this body and demonstrate our ability to overcome them and show the relevance and work together to come together in the best interest of our nation. with that, madam president, i yield the floor. >> next, the supreme court court hears oral argument in several same-sex marriage cases. then we open it up to you and
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later a debate on same-sex marriage on today's washington journal. throughout the day we have been seeing comments from a number viewers. this one from maxwell who says it has been legal in the uk for a while and their society is still entact and no one else's marriages have been ruined. get the government out of marriage all together. facebook.com/cspan. and on twitter jennifer who covered the case for huffingtonpost wrote now i can understand why people are pushing for streaming of the oral arguments. the first cases involved michigan and kentucky cases. the first question was about whether the 14th amendment
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required states to license same-sex marriage and the second part addressed the 4th amendment as well and whether that required states to recognize those marriages that were legally performed in other states. today's supreme court oral argument now: >> we will hear argument in 14256 obergefell v. hodges and the consolidate case. >> the intimate and committed relationships of same-sex couples just like those of heterosexual couples provide support. if a commitment responsibility and protection that is marriage is off-limit do is gay people as class the stain of unworthy ness that following on individuals
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and families condridicts the purpose of the 14th amendment. >> what to you do as a windsor case where the court said the federal government will leave to state on marriage and domestic relations. >> states do have privacy but their laws must respect the constitutional rights of persons and this couldn't have been clearer. we have a whole class denied the equal right of the government institution that provides protection. >> you say join in the institution. the argument on the other side is they are seeking to redefine the institution. every definition i found defines
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marriage between a husband and wife man and woman, if you succeed that definition is no longer optimal. >> we are talking about a class of people who by state law are excluded from being able to participate in this institution. if your honor's question is about does this really draw such orientation lines. >> no my question is you are not seeking to join the institution. you are seeking to change what the institution is. a fundamental core of the institution is the opposite sex relationship and you want to introduce into it a same-sex relationship. >> two points on that. to the extent if row are talking about the fundamental right to marry as male-female institution it provides guarantee for the
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role of gay people in society. just as the lawrence court called out the court for not appreciating the extent of the liberty at stake the same thing here; whether gay people share the same liberty. >> one of the problems is when you think about these cases you think about words or cases and the word that keeps coming back to me is millennial and plus time. first of all there hasn't been time so the respondants say for the federal system to engage in this debate; a separate state. but on a larger scale, it has been -- it was about the same time between brown and loving between lawrence and this case; about ten years. it is time for the scholars and
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comment to begin. i don't know how to talk about the definitions when we talk about millennial and this definition being with us for millennial. it is difficult for the court to say we know better. >> i don't think this is a question of the court knowing better. the place of gay people in our civic society is something that has been contested for more than a century. in the last century, immigration exclusion took place of gay people in public employment and federal service. these have been contested and you can see ten years of marriage for massachusetts but in the 1970's bigger case from minnesota reached this court and that is over 40 years ago. it was over 20 years ago that the hawaii supreme court seemed to indicate it would rule in favor of marriage and the american people have been debating and discussing this and the bottom line is that gay and
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lesbian family live in communities as neighbors throughout the country. >> you are arguing your brief fast. the primary purpose of the michigan law, marriage between a man and woman, was to demean gay people, is that correct? >> the michigan statute went out of their way to say gay people were anthetical to society. scombl did you say the primary purpose was to demean gay people? >> i think it has had that effect. >> is that true in michigan or every state that has a similar definition? >> many of the states with additional amendments many are similar. there are some with statutes and some having none of the above. i think the commonality against
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all of the statutes is they have moral judgments and stereotypes about gay people. a hundred years ago gay people were not worthy of the concern of the government. >> how do you counter the fact that as far as i am aware until the end of the 20th century there never was a nation or a culture that recognized marriage between two people of the same-sex. now can we infer those nations and cultures all thought there was some rational practical purpose for defining marriage in that way? or is it your argument they were operating independently based solely on irrational stereotypes and prejudice? >> your honor the position is that time is blind. if you think about the examples of sex discrimination that were protected by the 14th amendment
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but took a hundred years for the court to recognize the sex classification. and we went from a rational base approach to heightened scrutiny acknowledging this discrimination is not fair. we have a nation here of windsor and others. >> we infer that these societies all thought there was a rational and practical reason for this. >> i don't know what other societies assumed. but i believe times can blind, it takes time to see stereotypes and the common humanity of people who were once ignored. >> we would not be asking for this release if the law of marriage was what it was millennial ago. it wasn't possible. same-sex unions would not have
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made it into the pattern of marriage without a relationship a dominant and subordant relationship. it was marriage between a man and a woman but the man decided to tough it out. there was a change in institution of marriage to make it galitary. it wasn't galitarian if same-sex unions wouldn't be mentioned in what marriage was. >> and for centuries we had a system where it was absorbed of that and men and women had different prescribed legal roles. because of the quality and changing social circumstances all of those gender differences in the right and responsibility of the married pair have been eliminated and that is a system
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which committed same-sex couples -- >> this is not a universal aspect of marriage around the world. then again if you look at the basic definition it is between a man and a woman. it does not always say between a man and woman in which the woman is subordnant so i am not sure it is fair analogy. >> the thing about marriage is it is controlled by the states. the states create the definition of civil marriage and are accountable for the definitions and exclusions that follow. we know there were exclusions in cases like turner where in each case with prisoners but people behind on their child support cases with a mixed race couple wanted to join the institution and some of the exclusions were
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traditional -- >> not all societies banned mixed race marriages. not even all states in this country banned such. i don't know of any -- do you know of any society prior to the netherlands in 2011 that permitted same-sex marriage? >> as a legal manner? >> as a legal manner. >> i am not. >> not a single other society until the netherlands in 2011. >> taking that tradition as it is, one still needs, the court still needs the reason to maintain that tradition when it has that effect -- >> the resolution of course is not whether there should be same-sex marriage but who should decide the point. >> yes. >> you are asking us to decide it for this society when no
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other society until 2001 ever had it. and how many states have voted to have same-sex marriage? or their legislature or by referend referendum referendum? i think it is 11. >> i would count the state courts that interpret the constitution? >> yes. the state courts that agree with you. that is not the people deciding it. it is judge's deciding. >> in terms of this millennial, what has been the status or the view of gay people in most of those countries? have they been subject to the kinds of discrimination that they were subject to here? were they welcomed into the world wide community? was it free of discrimination? >> if you are thinking of the world not every system around
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the world has a system with an explicit explicit explicit guarantee for equal rights. there are 17-18 countries that do offer same-sex marriage benefits in europe and south america. >> there have been cultures that didn't frown on homosexually and ancient greek is an example. but did they have same-sex marriage in ancient greek? >> i don't believe they have anything similar to what we have. >> they had marriage didn't they? >> yes. >> and they have same-sex marriage relations, did they not? >> yes. people like plato wrote in favor of that or approvingly of same-sex relationship.
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did he not? >> i believe so. >> so they are limiting marriage to couples of the opposite sex was not based on prejudice against gay people, was it? >> i cannot speak to what was happening with the ancient greek people. >> but you said that -- well marriage is different because it controlled by the government. but from a historical standpoint, justice scalia was careful talking about society, and justice alito talks about cultures if you read about the ancient peoples, they didn't have a government rule. they made it themselves and it was man and wife. >> there were certainly prior to marriages prior to the united states forming and we recognize that. but in this union in 1787 and affirmed the 14th amendment and
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our nation made a commitment to individual equality. >> i would like to hear the answer to the precise question you have been asked several times. this has been the law everywhere for thousands of year among people who were not dis discriminating against gay people. and suddenly you want nine people outside of the ballot box to require states, that don't want to do it to change what you have heard is change what marriage is to include gay people. why cannot those states at least wait and see whether in fact doing so in the other states is or is not harmful to marriage? that same question has been put in many many ways in the briefs on our subject, you received it in three or four different ways and i would like to know so
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quarterbacking -- i can hear and understand what your response is. >> i apologize if i haven't. in our system, with the 14th amendment which is set for principles we are all governed by, you look at examples like curvature, even if not universal, it was widespread in this nation for a very, very long time and that change in marriage was deeply unsettling to people. likewise even if race wasn't used as the bases of discriminate discriminating it was persuasive and virginia resisted in the loving case and said policelease wait and see. 80% of the public was with virginia on that but it was a question of the individual liberty of the persons to do something that was considered a
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profound change in its time. >> first we ruled in favor of this case and after that a group consisting of two men and two women apply for a marriage license; is there any ground for denying them? >> i believe so. >> what are the reasons? >> whether the state would say that is a marriage and then there are concerns about consent and disrupting family relationships when you talk about multiply persons. i want to go back to the other question if i may. >> i didn't understand your answer. >> i hope you will come back to mind if you want to go back to the earlier one. >> what if there is no reason two men and two women, it is not the sort of polygamous marriages that existed in other societies and still exist in some societies today. let's say they are all
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consenting adults educated -- they are all lawyers. what is the ground you would like to hand down? what is the logic of denying them the same right? >> number one, i would assume the states would rush in when you talk about multiply people joining in that is not the same thing we have had in marriage which is the mutual support and consent of two people. >> i don't know what kind of distinguishment that is. a marriage between two people of the same sex is not something we have had before. recognizing that is a substantial break. maybe a good one. but this is -- why is that a greater break? >> the question is assuming this is the fundamental right, the question is one of justification and i would assume states say there is a concern about consent. if there is a divorce from the
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second wife does the fourth wife have access to the child of the second wife? there is discussions about who makes the medical decisions and there would be family issues that don't apply when we talk about two consenting adults who want to make that mutual commitment for as long as they shall be. and dernturning to wait and see by itself it has never been considered a free standing justification under the 14th amendment. we are talking about the petitioners being denied marriage and a second-class status. >> part of wait and see is to ascertain whether the science studies are accurate. but that seems to me we should
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not consult at all the social science on this. you say we don't need to wait for changes. so it seems if we don't wait it is only fair to seeay we will not consult social science. >> i think the effects of waiting makes same-sex couples second class citizens and setting that aside there have been trials, in the michigan case and in arkansas and florida, about adoption bans and they have been aired repeatedly and individuals heard about the social science agreement that there is nothing about the sexual orientation of the parent that will affect the child's outcome. this is not research just about
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gay people but the affects of gender. >> you are right the consequences waiting are not neutral. on the other hand one of the things that is extraordinary about this issue is how quickly has been the acceptance of your position across broad elements of society. the situation in maine is characteristic. in 2009 they banned gay marriage, in 2012 they enacted it as law. that is a quick change and it has been a characteristic of this debate. if you prevail there is no more debut. closing the debut closes minds. it has consequences about how this new institution is accepted. people feel differently if they have a chance to vote on it then if it is imposed on them by the
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court. >> there is a few points and i hope i get them all. one thing that separates maine from the states we are talking about is there wasn't a constitutional amendment in place that shuts down the process and it is difficult to amend the constitution. an opinion pole is not a measure of what a legislature is going to do -- poll -- to approve an amendment to go to the voters and serious structural problems didn't apply. when i think about acceptance i think about the nation as a whole. there are places with no protection for gay and lesbian people in parenting. the michigan petitioners have placed and approved of the adoptions.
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>> i am concerned about the wisdom of this court imposing through the constitution a requirement of action which impalatable to many because of religious regions. they are not likely to change their view on what marriage consist of. and were the states to adopt it by law, they could make exceptions to what is required for same-sex marriage and who has to honor it and so forth. but once it is made a matter of constitutional law, those exceptions, for example, it is conceivable that a minister who is authorized by the state to conduct marriage, can decline to marry marry if indeed this court holds
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they have a constitutional right to marry? is that conceivable that would be allowed? >> your honor, of course the constitution will continue to apply in right to the state and no clergy is forced to marry anyone. >> but to this day we never held there is a constitutional right for these two people to marry and to the extent the minter is conducting a civil marriage he is an instrument of the state. i don't see how you can allow that minister to say i will only marry a man and a woman, not two men, which means you could have ministers who conduct real marriages that are civilally enforceable at the national cathedral but not at st. matthews downtown because that minister refuses to marry two men and therefore cannot be
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given the state power to make a real state marriage. i don't see any answer to that. i really don't. >> counciler there is anti discrimination laws in states right? >> yes. >> involving gay people correct? >> yes. >> and in any of those states have ministers been forced to gay same-sex marriage? >> of course not. >> they are laws. not constitutional requirements. that is the whole point of my question. if you let the states do it you can make an exception. the state can say yes two men can marry but ministers who do not believe in same-sex marriage will still be authorized to conduct marriages on behalf of the state. you cannot do that once it is a constitutional prescription. >> for me it is firm that under the first amendment that a
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clergy person cannot be forced to officiate a marriage. >> he is just not given the state's power unless he agrees to use that power in accordance with the constitution. i don't know. seems to me you have to make that exception. you cannot appoint people who will then go ahead and violate the constitution. >> i think if we are talk about a government individual a clerk or judge who is empowered to authorize marriage that is a different matter and they will follow through unless the state makes exception. in connecticut, the court permitted marriage but passed a law to deal with these issues >> because it is a state law. that is the whole point. if it is a state law you can make exceptions but if it is a
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constitutional matter i don't so how you can. that will not be the case if we hold as a constitutional matter that the state must marry two men. >> your honor, maybe you are not understanding justice scalia's question. but there are many rabbis that will not conduct marriages between jews and non-jews not withstanding we have a prohibition against religious discrimination and the rabbis have the power and privilege of the state even with that rule. many, many rabbis will not do that. >> that is precisely -- >> congress shall make no law respecting the freedom of religion. >> yes, and i would say briefly -- >> you agree that ministers will not have to conduct same-sex
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marriage? >> if they do not want to that is correct and i believe that is firm in the first amendment. and i will say before sitting down in terms of the question who decides it is not about the court verses the state. it is about the individual making the choice to marry and whom to marry not the government. >> thank you, council. >> would you tlieklike to take a moment? >> i will. thank you, chief justice.
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>> actually the court is ready. >> we are ready. refresher here actually. >> mr. chief justice, may appease the court? the right to marry is part of dignity and excluding gay and lesbian means to take away the dignity. the the argument we have been discussing is whether this discrimination should persist is something that should be left to the political process or decided boy the court. i would like to make three points about that if i could. i think it is important that if
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the court leaves this up to the what the court is saying that the second class citizenship gay and lesbian are receiving is consistent with equal protection of the law. that is not a wait and see. that is a validation. and to the extent the thought is this could be left to the political process because this issue will take care of itself over time because attitudes are changing i submit to the court no one can see the future but it seems more like to me the outcome we end up with approxi approximate the nation. you may have many states perhaps most states where gay couples can live with equal dignity, but there is going to be a minority of states where gay couples are relegated to second-class status and i don't know why we would want to repeat back to history. and third i want to expand on
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what was said and i think you recognized this, the decision to leave it to the political process is going to impose enormous cost the court thought were stature in windsor. thousands of thousands ouch people are going to live out their lives and go to death without the state every recognizing the equal dignity of their relationship. >> you could have said the same thing ten years ago with lawrence. haven't we learned a lot since lawrence in the last ten years? >> yes, and your honor i think that is a critical point that goes to the question your honor was asking earlier. i think lawrence was an important catalyst that brought us to where we were. it provided an assurance gay and lesbians can live open in society as free people and start families and raise families and
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participate in their community without fear. and two things formed from that i think. one is that brought us to the point where we understand now in a way that we did not fully understand in lawrence that gay and lesbian people and couples are full and equal members of the community. and what we once thought of as necessary and proper reasons for marginalizing gay people we understand do not justify that kind of pressure. >> the difference is lawrence the whole argument is the state can't intrude on that personal relationship. this it seems is different in that what the argument is the state must sanctions and approve the relationship. they are two different questions. >> it is different. i agree. that leads to the second thing lawrence capitalized for the society and that is gay and lesbian people to take claim of
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the 14th amendment. this is about equal participation. participation on equal terms in a state confer status state institution, that is different than lawrence. but lawrence allowed us to see the justification for excluding gay and lesbian couples from par participation in this institution. and the state is talking about a fundamental change in the nature of marriage and i think the answer of this question is the case can be decided by thinking about marriage in the way the states define marriage now. and i think it is important to think about it this way. heterosexual couples can enter marriage and have families through biological procreation,
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assisted reproduction families through adoptions or not have families at all. >> what do you think are the essential elements of marriage as they exist today? >> i think they are the ones that are obligations of mutual support and responsibility and the benefits surrounding marriage that state law provides to insure there is an enduring bond that continues over time unless hopefully till death do us part and the end of life. and certainly child rearing is bound up in that. but i would suggest, justice alito, is the way childbearing is bound in that is different than what my friend on the other side. >> let's think about two groups of two people. the first is a same-sex couple who have been together 25 years and they get married as a result of the change in state law or a result of a court decision.
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so the second two people are unmarried, siblings lived together 25 years their finance relationship is the same as the same-sex couple, they share household expenses and chores in the same way and care for each other in the same way; is there any reason the law should treat the two groups differentry? >> the law allows hundred percent of heterosexual people enter marriage consistent with their sexual orientation and in these states it prohibits hundred percent of gay and lesbian people from entering a relationship -- >> as far as the benefits marriage gives couple what is the reason for treating the two differently? >> marriage is more fundamental
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than that. it is an induring bond between two people. and childbearing it is important. part of the wait and see caution argument that respondents are saying they want to exercise an attitude of caution because of concern about the welfare of children raised in same-sex marriage households but there is a problem with that rational. right now today, hundreds of thousands of children are being raised in same-sex households and that number is only growing. all of the evidence is showing you that is not the problem and the state's argument is ironic in that it will deny marriage -- >> all of the evidence shows -- >> i think all of the leading organizations that filled briefs have said there is an agreement on that. >> and i think some of the
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briefs contradicted that. >> i think the fundamental point and the point i am trying to drive at is you have hundreds of thousands of children raised in same-sex households now and what the respondents caution argument leads you to is the conclusion those hundreds of thousands of children don't get the stabalizing structure and the benefits of marriage. >> i would like to follow-up with the line of questions that justice scalia started. we have a concession from your friend that clergy is not required to perform same-sex marriage. but they are going to be hard questions. would a religious school with married housing be required to afford such housing to same-sex couples? >> i would like to make three points about that. and i will go right to the question you ask. the first one is of course this court's ruling addresses what
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the states must do under the 14th amendment and the second point is 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 law, whether they decide there is going to be civil right 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 -- different states could strike difference balances. >> what about it being a federal question if we make it a matter of constitutional law. but the question of how states use enforcement power is up to the states >> you have enforcement power, too. >> and that is certainly true but there is no federal law generally banning discrimination based on sexual orientation. and the third point i would make
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is these issues are going to arise in states where there is no same-sex marriage and they have risen many times. there is commitment ceremonies like in new mexico that didn't arrive from a marriage. it arose from a commitment ceremony. this commitment ceremonies are going to need florist and such. >> the court held a college was not entitled to tax exempt status if they opposed interracial marriage or dating would the same apply to a university or college if they oppose same-sex marriage? >> i don't think i can answer without knowing the specifics. it is going to be an issue. i don't deny that justice scalia. >> why don't you answer my question -- i see your time going out.
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i am interested in your comments on the case that says we will have to define marriage and a lot of questions we asked your colleague in the earlier part of the argument had that in mind. >> justice kennedy, forgive me for answer this way. there is a connection between liberty and equality but we only have an equal protection and we have not made the argument under that and i am not sure it is appropriate to comment without briefing. >> why didn't you make the fundamental argument? >> we think reasons like the ones in the chief justice question this issue sounds equal protection as we understand it because the question is equal participation in a state conferred status and institution and that is why we think of it in equal protection terms.
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if i could with the time i have left i would like to suggest this. what the respondents are saying to the court is with respect to marriage they are not ready. yes, gay and lesbian couples can live openly in society, yes they can raise children yes they can participate fullly -- fully as members of the community but marriage has to be worked out later. but the petitioners, these gay and lesbian couples -- >> or not. they are saying leave it to the people. it will be worked out later or not >> what these gay and lesbian couples are doing is playing claim to the promise of the 14th amendment now. it is radically the duty of this court, as it was in lawrence to decide what the 14th amendment
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requires. i would suggest that in a world in which gay and lesbian couples live openly as our neighbors, raise our children side by side with the rest of us theytribute theytribute -- they contribute as members of the community and it is untenable they can be denied the right of equal protection in the institution of marriage or be required to wait until the majority decide they are ready to treat gay and lesbian people as equals. gay and lesbian people are equal. they deserve the equal protection of the law and they deserve it now. thank you. >> thank you general. >> mr. burse? >> thank you mr. chief justice.
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respondents are not saying we are ready. this case isn't about how to define marriage. it is about who gets to decide that question. the people through the democratic process or the federal courts. and we are asking you to affirm individual's liberty interest in deciding the meaning of marriage. this case turns on the question -- >> no body is taking that away from anybody. every single individual in this society choses if they can their sexual orientation or who to marry or not marry. i suspect even with us giving gays the right to marry there are some gay people who will chose not to just like heterosexual couples chose not to sometimes. >> we are talking about the fundamental liberty interest in deciding what marriage means. >> setting that aside, i heard
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the answer to the question being given in respect to tradition, the 2,000 years and the democratic ballot box was quite simple. what i heard was one marriage is fundamental. i mean certainly, that is 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 of taking opportunity in that fundamental ability. and that is same-sex marriage. and we ask why?
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the answer we get is people have always done it. you could have answered that one the same way when you talk about racial segregation. or two because certain religious groups believe it is a sin. and i believe they sincerely think that. but is a purely religious reason on the part of some people sufficient? when i look for reasons three four and five i don't find them. what are they? therefore i am asking -- this is a long question but gives you an opening to say what all of those reasons are. >> those are not our answers. our answer number one is the marriage institution did not develop to deny dignity or give second-class status to anyone. it is developed to serve purposes that arrive from biology. imagine a world without
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marriage. men and women would get together and create children but they would not be attached to each other in social institutions. on the other side, marriage is all about love and commitment and as a society we can agree that is important but the state has no interest in that. if we try to solve the social problem of no marriage we would not solve it by say let's have people identify who they are committed to and recognize those relationships. >> the principle argument you make in your brief is same-sex marriage doesn't advance the state interest in regulating procreation. let's assume that is so for the moment. obviously same-sex partners can procreate themselves. is there in addition to that, are you saying, that recognizing same-sex marriage will impede upon that state interest or harm that state interest in
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regulating procreation through marriage? >> we are saying that your hone. obviously under a rational bases that is not a question you need to decide. but leaving that aside -- >> how could that because all of the benefits marriage affords the benefits. they would have the same incentive to marry and the benefits coming with marriage they do now. >> justice kagan and justice ginsburg it has to do with the society understanding of what marriage means. this is a bigger idea of a couple and what marriage means to them or their children. when you change the definition of marriage to delink the idea we are bonding children with their biological mom and dad there is consequences >> we don't do that.
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that is the problem. marriage
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it will harm marriage between a man and woman if you allow men or two women to marry. i thought the burden was to show the state's reason for this institution is a reason that has nothing to do it is not applicable to same-sex couples. >> justice scalia you are right. i want to answer your question. >> i don't think that is right. i think before something that is as fundamental to a society as marriage is before an exclusion can be made in that institution the state needs a reason for that exclusion. i am giving you a real opportunity to tell you what that reason is what is the
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reason for the exclusion instead of non-inclusion. >> it is definition to solve a problem but the reason there is harm if you change the definition is because in people's mind if marriage and creating children don't have anything to do with each other what do you expect? you expect more children outside of marriage. i want to give you a hypothetical -- >> you think if we allow same-sex marriage one is announcing to the world that marriage and children have nothing to do with each other? >> not in the abstract. >> or in the concrete. >> if we are talking about something that is going to change the meaning of the institution over generations and you have things where we tweak what marriage means and there is consequences over the long term. think about two couples that have been married for five years and each have a three year old
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child. one grows up believing 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 they may not stay together. a reasonable voter could believe there could be a different outcome if the marriages were influenced by the different belief systems. ideas matter >> that assumes that same-sex couples could not have another purpose and that is the whole point. same-sex couples say of course we understand the nobility and the sacredness of marriage. we know we cannot procreate but what about the other attributes we have to fulfill. but you are saying this harms
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conventional marriage. that was the argument you made in the brief as i understood it. >> the state of michigan values the dignity and worth of every human being no matter how they chose to live their life. our point is when you change the dictionary definition and apply it over generations the changes matter. >> that is true. but i mean the fact is that a very high percent of opposite sex people don't have children and everybody knows they can't and a very high percentage of those who get married of same-sex people do have children. where is this going? what are these two gay couples to do with it?
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>> we are concerned about all of the children. children of opposite sex couples and children of same-sex couples. there are 73 million children in this country. if this court puts a new definition in the constitution and reduces the rate that opposite sex couples stay bound to their children because of the under understanding -- >> what evidence is there of that? >> looking at the two couples i described, one believing that marriage is all about staying with their kinds and the other believing it is all about emotion and commitment could have different results. >> even under a rational bases standard, do we accept a feeling? i mean why and i think justice kagan put the argument clearly would something as fundamental as marriage why would that feeling, which doesn't make any
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logical sense control our decision making? >> it doesn't make any logical sense that if people think marriage is more about love and commitment than about staying bound to your children forever there might be different consequences? >> i think people who get into marriage think that. everybody has their own vision of what marriage is. but what state confers is certain obligations. and they are willing to accept those. whether or not that couples stay together. they are bound to that child. they have to support the child, they have to care for him or her, some people chose voluntarily, meaning they chose because they don't want to but that happens in same-sex and heterosexual couples >> it is a harm to a child of an opposite couple if they get divorced as oppose today stay
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together forever. we can all agree that we want kids staying bound to their biological mother and father. when i hear -- >> i think they should be bound to their parents because there is a lot of adoptive children and they are not thinking of biological markers >> that is a situation where the child doesn't have their biological mom or dad and that is a different state interest. >> suppose that there is a state with a very procreation centered view of marriage of the kind you are talking about, and so emotional commitment and support, all of these the state thinks are not the purpose of marriage and they want their marriage license to be addressed only to the things that serve this procreation purpose so they say we are not giving marriage licenses to anybody who doesn't
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want children. so when people come in and ask for a marriage license they ask a simple question; do you want children? if the answer is no the state says no marriage license for you. is that constitutional? >> that would go against the interest. >> the state says the best way to promote procreation centered view of marriage is to limit to marriage to people who want children. and that is what it does. would that be constitutional? >> justice kagan, even people who come into a marriage thinking they don't want children end up with children. >> answer the question. what is your answer to the question? >> >> would it be constitutional? >> i think it would be an innovation of privacy. >> 70-year-old couple comes
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in -- [laughing] >> you don't have to ask questions you know they are not having children. >> a 70-year-old man is capable of having children and you would like to keep that within the marriage. leaving that aside, what you are talking about justice ginsburg is a justification and saying overinclusiveness is not something you need to worry about. applying a heightened scrutiny many are married thinking they will not have children but end up with children. and that advances the state's interest. >> you are the one who said rational bases applies. and this is the state that is deciding it is so wants this procreation-centered view of marriage it is going to exclude who don't want children or people who can't have children
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and the question is would that be constitutional and it seems to me directly from your argument it would be constitutional. ... >> the definition of marriage suffers from that same flaw the truest definition families that
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have been discussed that might benefit from having state recognized marriage that have emotional love or commitment to each other. of those are the reasons -- >> marriage is to provide a lasting bond between people who love each other and make a commitment to take care of each other. do you see a way in which that logic can be limited to two people who want to have sexual relations? cannot extend to larger groups the one i mentioned earlier why it would not extend to unmarried siblings >> over inclusive and underinclusive. the state does not have an interest. if justice kagan and i have
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a close friendship the government does not regulate when that begins or ends. is not about love but finding children. >> place i can accept that kind of definition and.out many gay people want have children. i'm not certain how that works. the other thing that would be helpful to me is there is an argument being made not by government command i would like your response to it that marriage is about as basic a right as there is the constitution and amendment 14 does say you cannot deprive a person of liberty certainly basic liberty without due process of law and that the taking the people were so little distinguishes them from the people you give the liberty
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to at least in terms of a good reason and you cannot let them participate that that violates the 14th amendment. rational basis. it is not going to get into these questions about religion. rights versus gay-rights and so forth. we avoid that in this case. perhaps that is wise if not legally required, which it may be. i would like your response to that aspect of the other side's argument. >> with respect to the right of privacy you identified this court already answered that question in the majority opinion when he
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said the limitation -- 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 the state offers that to almost everyone but excludes a group. i want that answer to the best of your ability. and this court said the limitation has always been thought to be monumental. so under that test command you could change -- >> i suppose i do not accept
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for argument sake your notion that the right of privacy and the right to be married of the same thing. now, we will deal with my hypothetical and that is they are different things. on on that assumption i would like to know what you think of the argument. >> windsor on that -- >> the problem is i do not accept your starting premise the right to marriage is i think, embedded in our constitution. it is a fundamental right. we have seen it in a number of cases. the issue is, you cannot now it down to say what is gay marriage? black and white marriage. fundamentally. the issue was starting for the proposition is the right
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to marry fundamental. and. and then, is it compelling for a state to exclude a group of people. for me that is a simple a question -- >> justice so the mayor, i am not arguing with you about how broadly or narrowly defined narrowly we should be defining. the long-established precedent designed to create a balance were federal courts are not interfering with the state democratic process. it does not matter how broadly unifying but fundamentally understood as a limitation. >> i am not sure it is necessary to get into sexual orientation to resolve the case. the difference is based upon their different sex.
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why isn't that a straightforward question of sexual discrimination? >> two reasons. always involved training classes of men and women differently. it's appropriate to draw lines based on sex if related to biology and indulgence for a minute that it is important. you will recall that is the case a lot of determined citizenship of children born to unmarried individuals overseas. the citizen mother that may automatically have citizenship but if it was the father the father had to prove paternity and make child support payments up until age 18 which is obvious sex discrimination. >> the core rationale for that as we know who the mother is.
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the father claiming to be the father for some benefit, but we cannot be sure. >> that was the justification for the proof of parenthood. i would like to quote from the opinion about the 2nd interest, child support. the court said the government had an important interest in ensuring an opportunity to have a meaningful parent-child relationship between the biological father and child and the law substantially advance that interest, and this is why. the policy which seeks to foster the opportunity to meaningful parent-child bond has a close and substantial bearing on the governmental interest in the actual formation of that pond, the exact same interest being advanced here when we talk about the definition of marriage.
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>> give the status of a parent. it was not difficult. here there is a total exclusion. the father was complaining he should not have to do anything other. you do. it's not much. >> but that is the gist of the court's opinion, the state had an interest in the biological bond ensuring that it is sustained, the exact same interest the states have when they try to bind children to the biological moms and dads which means over the long haul it has consequences. the out of wedlock has gone from 10 percent to 40 percent.
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everyone would agree that is not a good result for children. to the extent you are changing that -- >> the recent gay marriages massachusetts, the rates have remained constant. >> but as federal justices have noted it's a very short timeframe. >> you are the one that brought the statistic up. [laughter] >> right. >> and under your view it would be difficult for same-sex couples to adopt some of these children. i think the argument cuts against you. the basic.where you have some premise that only opposite sex couples can have a bonding with the child. interesting how it is just a wrong premise. >> the premise is not we want to encourage children to be bonded to the
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biological mother and father we do not deny or disagree. we hope that is the case. >> this is what i think is difficult for some people with your argument. it is hard to see how permitting same-sex marriage discourages people from being bonded with their biological children. if you could explain that to me. >> you are changing the meaning of marriage. adults can think rightly that this relationship is more about adults and not the kids. we all agree they are bonded to the kids and have the best interests at heart but what we are talking about over decades laws change and societal views change, there are consequences. what this comes down to is not whether you agree or disagree but whether in drawing policy lines every marriage definition includes and exclude some people.
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the possible harm you change the definition -- >> what is your response to the fact? we assume, assume, a, basic purpose of marriage is to encourage an emotional enduring bond between parents and children allowing gay people to marry the week. after all some non- gay couples have children, and some don't. some gay some gay people marry and have children command some don't. so what is the empirical connection? that is what i have a problem within your argument >> it is relatively simple. if you do you think marriage you would expect to have more children created outside of the bonds of marriage. a reasonable voter right now --
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>> the empirical part of what you just said if you believe that marriage -- i just heard you say it. >> because you are changing a slightly the state's interest. you are talking about the state's interest and bonding parents and children generally. if that was the interest that motivate this definition there would be a different answer. >> i have never heard of the state that said it was our state policy that we do not like adoption. i have heard of many states to say it is very important to treat adopted children the same way that you treat natural children. i have never heard the congress. >> let me be clear. adopted parents are heroic.
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you are talking about children who have for whatever reason, death disability, abuse, already separated from their biological mom and dad. that is an entirely different social issue. we're talking here about a world -- >> they are connected. >> they are related, sure. >> you think about the potential adoptive parents many of them are same-sex parents who cannot have their own children and truly want to experience exactly the kind of bond you are talking about. how does it make those children better off by preventing this from happening? >> we have someone regardless of sexual orientation to adopt. >> but by saying that the marriage, the recognition of marriage helps the children to argue? you would rather -- the whole basis of your argument children and marital households.
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more adopted children and more marital households whether same-sex or other sex seems to be a good thing >> that is a policy argument and reasonable people can disagree. >> i'm not trying to put words in your mouth. i am just saying it seems to me inexplicable given what you said are your policy interests. >> because if you change the societal meaning of marriage and society has started to move away from that we understood marriage to be the more that is separated the more likely it is when you have an opposite sex couple that he will not be maintained. more kids being raised without the biological mom and dad being raised without both parents and typically without a father but not always the case and it is not unreasonable in
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picking about the possible consequences of changing a definition that has existed for millennia that might have real consequences. consequences. to say otherwise is to say it is irrational or person to think that changing an idea will have no effect on how people think. >> you can't change some idea about marriage is the.i made earlier. today it today it is not what it was under the common law tradition. the relationships, dominant male to the subordinate female. implemented in 1982. it's just that. no state is allowed to have such anymore. would that be a choice? marriage the way that it was. >> absolutely not because
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the state did not have a legitimate interest in making anyone subservient to anyone else, but here the states entire interest stems out of the fact we want to link children with the biological mom and dad when possible. i want to get back to line drawing and how no matter where you draw the line what there asking you to do is take an institution never intended. and when you do that tens of thousands of other children we will likewise be left out and so for those exact same dignitary harms. you talk you talk about the spectrum of marriage definitions, different places to draw the lines and potential harms that is the quintessential place for the democratic process to work. >> just in fairness i don't understand.
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i thought that was the whole purpose. it bestows dignity. these parties want to have that same in a moment. >> you are missing my. if we go back to the world where marriage does not exist and we're trying to link together these kids and their biological mom and dads when possible it's not necessarily about dignity. dignity may have grown up around marriage as a cultural thing but the state has no interest in bestowing are taking away dignity from anyone. certainly not same-sex couples or anyone. >> states would be surprised with reference to traditional marriage they are not enhancing dignity of both parties.
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>> the main issue is the states do not intend to the stowe dignity. if you turn it into a dignity a dignity bestowing institution of the family structures and institutions would suffer dignitary harms. you cannot draw the line there. we're talk about balancing harms, the most fundamental of questions has other, you know, important things to be thought about one of which is what people have to act through the democratic process it is worth it to sit down and civilly discuss an issue and try to persuade each other command we have seen that happen in 11 states. if you read some accounts that could happen in many more. when you enact social change of this magnitude it is coming off that dialogue and saying one group gets their definition and the other is maligned is being irrational which is not the way our
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democratic process is supposed to work and there are long-term harms our country and that fundamental liberty interest to govern ourselves. if you take away that dynamic from a court imposed decision. >> i mean,, of course we do not live in a pure democracy, a constitutional democracy, the constitution imposes limits on what can be done done and this is one of those places. we see them every day. we have to decide what those limits are. operate purely independently. >> justice kagan come as we discussed there is not a constitutional limit that tells people to marriage definition they have had for millennia is so irrational
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that it is unconstitutional. we have not seen that under these courts. the fundamental rights doctrine -- >> but that is the question. whether they are quality limits. let's go back to the liberty limits. >> sure. >> the right to marry within, blocky, turner. and all of these cases will we have talked about is a right a right to marry. we did not try to find the right particularly. is there a right to interracial marriage right to marry if you are a prisoner? we just sit there is a right to marry is fundamental and everyone is entitled unless there is some good reason for the state to exclude the so so why shouldn't we adopt the exact same understanding hear? >> well, the same cases you just mentioned every single
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one of those talks about marriage in the context of men and women coming together in creating children. >> but there were dealing than with men and women coming together. the question was, there might be a black man and a white woman or a black carbon and a white man and there was no inquiry into whether that was a traditional form of marriage. if there had been they would have come up pretty short. >> historically that was not part of the tradition. >> it tradition. >> it is not a part of the tradition, that is right. it is irrelevant that that is not part of the tradition because there is no good reason for it not to be. >> discrimination has nothing to do with the state interest. >> very clearly not just a
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racial case but a liberty case and indeed exactly what this case is it shows how liberty and equality are intertwined. >> no. if the couple could not get married they cannot enjoy private intimacy because it was subject to criminal prosecution of jail time. all of these cases there were other models that prohibited. >> that has to do with prisoners. if the state interest is in fostering procreation it seems to me you can get married if there is a child on the way. and that would promote the interest. we said that is not enough.
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the fundamental rights to marry this does an important connection even if the prisoner at the moment had no chance of procreation. >> justice so to mayor, you are well aware of this court decided to cases. even someone in prison with the expectation of getting out sunday has the right to consummate the marriage. appropriate for the state to deny them the opportunity to marry. even they're you are tying state interest asserted here to marriage. let's take away all laws regarding cohabitation and intimacy outside of marriage so that there is no criminal conduct. if the state today decided
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to have no marriage, that would not violate a fundamental right. it was the right to be left alone not the right to force the government to come into your home and recognize something and give you benefits. those are two different things. i am reluctant to bring that up. roe. roe v wade, this court said the government cannot interfere in that private choice. it is a fundamental choice. a woman cannot force the government to participate in that by paying for it. cannot interfere in private intimate conduct. the court cannot say as a constitutional matter you cannot force the state into those relationships by forcing them to recognize and give benefits.
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that is not the way it works so back to your.about how the constitution does put limits, there have not been any identifiable limits. you would have to somehow change one of those doctrines, change your fundamental rights doctrine, change equal protection doctrine, and to change those features the balance between the federal courts and the people voting in the democratic process. >> it seems as though you are doing something very different than we have ever done before, defining constitutional rights in terms of the kind of people that can exercise them and i don't think we have ever done that will you have seen a constitutional right we have not defined it by these people can exercise it but these people cannot, especially in the case with the claims are rights -based and equality based. it would be like saying there is only a right to intimate activity for
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heterosexual people and not for gays and lesbians. of course we did not do that once we understood there was a right to engage in intimate activity it was a right for everybody. >> but that is the states whole. the state has drawn lines the way the government has always done. >> it must be. >> you are drawing distinctions based on sexual orientation. >> zero, gosh, no. the state does not care about your sexual orientation. >> i'm not asking about your reasons and bloody you have any. whether you have any are not you are drawing distinctions based upon sexual orientation. that is what these laws do. >> based upon sexual orientation, very different.
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>> the context. >> altogether. >> as you said, that does not necessarily mean animus. >> what do we say? something about if you prevent people from wearing yarmulkes it is discrimination against jews. >> the case i was talking about was the one that affected abortion. >> said what i said. >> right. [laughter] >> read anything, i will certainly go back. i do recall the case generally and do not believe there is anything that says
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basically a pretty all right to be married is a right that extends only to opposite sex couples. those were not really issues in the case as they are here i would be surprised if this court wrote that. if it did, if it did and you can immediately call that to mind, i will look at it. i doubt it is there. >> i apologize. >> that is quite all right. >> you will find the court said it is the limitation of marriage to opposite sex couples. >> how can the limitation -- the fundamental right has to be a right to marry. the limitation -- >> did he join that opinion?
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>> i believe he did. >> my lord. >> if i can briefly. so clearly decided. >> i want to wrap up. obviously emotional issues are reasonable people can disagree. the state generally has no animus and does not intend to take away dignity. but this court taking this important issue will have dramatic impact on the democratic process. >> thank you, counsel. >> i just want to say the ideas will change. they can choose to marry because of the commitment.
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they are marriages same-sex couples. second, we agree that restrictions are linked to gender, classification. ideas about what is a proper relationship. that is obviously not the person of the same sex. intensely vulnerable children. a healthy child. denied the marriage because they did not conceive those children together. now, drawing a line because it does not approve of the relationship no matter what the protestations. next not respectful because it is drawn based on biology one casualty is the
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impoverished view of marriage and the role of biological probe creation. the entire premise is a same-sex couples marriage those two cannot be further apart. people make sure their own decision is beyond attenuated. other people who raise children. these relationships we are talking about the foundation different adult relationships same-sex couples who have committed to raising children is stigmatizing. if i may the only way i can understand the.about procreation in biology and so on his work on a brief.
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they care about people who have children together stay together providing a long-term stable situation for they're children. that interest applies for force in this context because by denying marriage you are denying that or the protection for adults which is independently important denying protections and security that would come from having married parents. with that -- >> thank you, counsel. the court will take a brief break in return for argument on the 2nd question presented. >> the supreme court wrapping up part one of oral arguments on same-sex marriage dealing with cases from michigan in kentucky and addressing the question of whether the 14th amendment require states to recognize same-sex marriage
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looking at some of the video outside the court and obviously do a lot of attention at the court online as well but not done with just part one. situations in ohio kentucky in tennessee and the 14th amendment but this time the focus was on one of the 14th 14th amendment requires the states to recognize marriages legally performed in other states. back to oral argument at the supreme court >> we'll now hear argument on the second question in this case. mr. hall. >> may it please the court. >> they have established enduring relationships and have a liberty interest
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the nonrecognition laws undermine the stability of these families to support just such stability. >> i was surprised by the arguments made in your brief. there was a repetition of the arguments about the.was whether there would be an obligation to recognize same-sex marriage enter into another state where was lawful even if the state constitutionally does not recognize same-sex marriage. am i wrong?
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>> this court's decision to establish that there is not only a right to be married but a right to remain married but there is a protected liberty interest in the status of one's marriage. >> even if that marriage is not lawful under the receiving state's law. >> let's say someone gets married in the country that permits polygamy. does the state have to acknowledge that? >> the state can assert justification. >> well with the justification be? contrary to public policy? >> the state does not have such an institution.
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a polygamist relationship would raise all kinds of questions. >> i don't have such an institution. in this state which we constitutionally can have because the 2nd question assumes the 1st question comes out the way the us does not want it to come out we only have the institution of heterosexual marriage. we don't have that. >> the institution is the institution of marriage. >> heterosexual marriage. >> demonstrated by what has happened or by court order states have had to permit same-sex couples to marry. all that has happened is they have had to remove gender specific language.
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>> if you want to finish answering. >> that relationship raises all manner of questions not addressed. >> what if one state says that individuals can marry at the age of puberty. a 12-year-old female can marry. marry. another state be obligated to recognize that? >> probably not. the state would have a sufficiently important interest in protecting the true consent of the married person command most states do not recognize the minors ability to consent. don't recognize is quite in contrast the states to recognize the marriage is a person who by age would not have been able to marry within their state.
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that is that is the long-standing practice of all estates precisely because of the obama -- the abomination of the notion that persons can have a different marital state in some jurisdictions and others. >> virtually all states would recognize cousins through marriage getting married is at least one state that does not. came at the state. >> at the constitutional test of the court set forth. does the state have a sufficiently important interest. the state does have a sufficiently important -- >> this is not incest. >> the states i am aware of do so under the incest statutes and simply define it in a broadway that would
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encompass cousins to marry. had some.this is extenuate it. >> as just as the leaders question points out the assumption is hypothetical. the way these cases are presented. the state does have a sufficient interest to need not allow the marriages and that state. there is a sufficient interest under our assumption here that this is not a fundamental right. why should the state have to yield? >> you have to analyze the interest the state might assert for not allowing couples to enter marriage versus the interest as related to a couple is
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already married. it's interest and only in only permitting opposite sex couples to marry is to increase the birthrate. apply the theory the same-sex couples who are already married in states where they were already married and half the states in the country. they would have the courts believe it was sufficiently important interest to have that couple disregard their existing marriage vows and obligations to marry someone else and kentucky's order to procreate biologically even though the couple may already have children together. that is not a rational -- >> the long-term effects in kentucky will be which he did not agree with but what counsel responded, argued in
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the prior case will be a reduction in heterosexual marriages and a a reduction in the number of children born into those marriages. >> this court has rejected that type of speculation as a basis for drawing distinctions before. the state argued that it was too soon to know the effect of interracial marriage and with the stigma would be. >> not have rejected it if we come out the way this question presented assumes we have come out saying that it is okay for state not to permit same-sex marriage. >> the state asserts it has an interest in the stability marriage provides for children. that interest does not justify extinguishing marriages that already exist >> if the petitioner prevails in the 1st case
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than the argument is moot. >> that is absolutely -- >> so you are supposing a situation where the plaintiff did not prevail in the state can retain it's been on same-sex marriage the question marriage, the question is just does it have to recognize marriages from out of state. does it make any difference if the couple came from the state where there is a van on same-sex marriage, go to a neighboring state that allows it comes right back home again? >> no, your honor, i don't think there would be such a distinction. none of that is presupposed. as as the court observed with respect to delma and windsor, the recognition was
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stark departure from the states traditional practice of recognizing out-of-state marriages even though they could not have been celebrated within the state. it is precisely that circumstance. and the three states that have this issue are able to identify only five instances in which they did not recognize a marriage that was valid outside the state even though it could not have been celebrated inside. those instances are incest which we think the state would have a sufficiently important justification not to recognize miscegenation laws, not a precedent that i think the court would want to rely upon, or other interests that probably would not survive today such as the rule against allowing a divorced person.
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[inaudible] again, i think you are avoiding the assumption which is that the state's policy for supporting same-sex marriage is sufficiently strong. they can as a matter of public policy prohibit that. somehow so much weaker we are talking about marriages from other states. >> there are a couple of points i i would like to make in order to distinguish the situation from the question. it was significant that respondent's counsel was emphasizing he thought it was scrutiny that would apply but that was to the
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question of whether people should be allowed to marry. our petitioners are already married. we know from windsor that once married a couple has a constitutionally protected liberty interest in their marriage. we also know 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. >> it undermines the state interest that we would recognize in the 1st case to say that they must welcome people who have been married elsewhere. it is a matter of time until they would be recognizing. >> a very mobile society. one state would basically set the policy for the
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entire nation. >> of course there would be fewer such couples raising children within their borders in heterosexual couples raising children not biologically linked. i think that the argument the state is made are so over and underinclusive that they believe the feeling that can only be a pretext. they don't draw the lines and never draw the lines. >> lost you. >> one that limits marriage to those couples able to procreate biologically without assistance. the states do not draw those lines. they have laws that treat adopted relations with the same legal effect as biological and have laws
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that further support and give greater stability. >> different. i thought that the states had never categorically passed a law declaring that a particular kind of marriage was against public policy no one of the four states had ever done that. >> until the issue. >> out of character, unprecedented in many respects. >> you are saying the laws in some states the ones you are referring to recognizing as pretextual? >> non- recognition laws are potential because the long-standing practice is to recognize marriages that are validly celebrated elsewhere
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>> we have a distinction between same-sex marriage and opposite sex marriage. what is the next dramatic variation? >> at the time it is a racial marriage. >> the next most dramatic difference. >> if i could it was the closest analogy. what is different. >> i asked a simple question what is the next most dramatic variation in the marriage laws of the state? >> it probably is age eight. >> thirteen to 18. the tradition of the states the issue does not come up that much. it is to recognize a marriage entered into by someone of an age could not
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have been entered within the state because of the nature of the marriage recognizing the fundamental nature is not one that the state should put asunder. >> i thought i thought you answered earlier that the state could refuse to recognize a marriage contracted in another state with a minimum wage was puberty. >> well, they could, and i do believe if in the individual any 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 -- >> the presumption would be that age 13 cannot consent. >> probably your right. if it's a matter of 15 instead of 16 the courts probably would recognize it especially if the couple had
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conceived of a child. if. if you do no one any good to destroy that marriage in the environment that it might provide for the children just as it certainly does not advance the interest of the children of opposite sex couples to destroy the marriages the provide stability to the children of same-sex couples were already married under the laws of other states. >> your argument is pretty much the exact opposite of the argument of the petitioners in the prior case. the argument we can do this, we've never done this before recognize same-sex marriage now you are saying they can't not recognize same-sex marriage because they have never not recognize them before. >> you have to decide one of the other. >> i do not think so at all. i think what is essential in common between us is that we recognize that the marriage
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that our petitioners have entered into is a marriage that same institution that same most important relationship that this court has held out. >> we only get the 2nd question if you have lost on that.already. states don't have to recognize same-sex marriage as a marriage. i don't see how your argument -- you can't say they are not treating a marriage as a marriage. >> that actually highlights one of the problems of trying to decide the two cases differently. deciding against the issues even if the court decides in favor would forever relegate those marriages to second-class status is and would raise all kinds of questions whether they could be subjected --
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>> are we arguing question one? >> no, i am suggesting that a win on question two does not fully validate petitioners marriages, but we think the state cannot disregard the my cannot effectively dissolve existing marriages without a sufficiently important reason for doing so. this court recognized that marriage, marriage procreation, family relationships, childbearing fundamental assets of autonomy the same-sex couples can enter into and choose for purposes of autonomy the same extent as opposite sex couples especially when they have established a broad children in. i would like to give an example. it brings home what is happening. they married in california
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in 2,008. in 2,009 they adopted two children. in reliance upon the protection afforded by marriage willing to give up his job to become the primary caregiver children. he is the primary breadwinner. his job and international law firm was transferred. the cost of that transfer was the destruction of the family relationships. in support of that the states offer exactly nothing no reason the state needs to disregard that marriage, no reason the state needs to destroy the appliance and giving up his career to look after their children. >> the argument made respect
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to the 1st question namely that the existence of same-sex marriages -year-olds erodes the feeling of society regarding heterosexual marriages. >> as i said before i don't think that holds up. opposite sex couples who have no children they move into the states, their marriages are entitled to respect and are situated precisely is our petitioners they may not be able to procreate biologically, but they are able to procreate through assisted means and when reliance on their own state where they live move into the states that marriage is destroyed.
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this court relies on federalism, the vertical kind to identify something that was highly unusual. it's horizontal federalism that identify something highly unusual. as part of a federal form of government in which the states are equal the states have ceded some form of authority to recognize the one another state creates an enduring relationship and encourages people reliance on the protection law affords that it is not in the corporate context once a corporation is established that corporation exists in all other states certainly the families our petitioners have established are
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entitled to at least the same respect. i think that it is quite interesting to note in the 1st argument michigan was argued limiting marriage to couples capable of procreation without assistance. it is our clients who take marriage seriously. indeed, as this court has said it predates the bill of rights the most important and fundamental. the state should offer something more than mere pretext. >> we treat outsiders the same way we treat insiders. >> they certainly have offered that.
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what the state ignores is the so-called outsiders are already married. the state says we have same-sex couples and our state and don't allow them to marry so we will treat you the same way. they ignore our clients have already formed as a nation shoots and in terms of the interest to think again perhaps about heterosexual couples we don't think that a the state could marriage to only those couples capable of procreation could preclude marriage 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 the woman reaches 55. i don't think that's constitutionally permissible
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states don't and never would do that because the essential protection against arbitrary law is that the majority has to live under the same laws they would subject the minority to. .. laws that they could subject the minority too. there's no chance that the majority would subject themselves to such a law as that. i'd like to reserve the remainder of my time. >> thank you, counsel. >> mr. article 4? 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
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other state. now, why doesn't that apply? >> 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. >> public act, it would include the act of marrying people i assume. >> my understanding of this court's decion, so there's there is nothing in the constitution that requires the state to acknowledge even those marriages in other states that are the same. >> that's essentially correct your honor. this court decision says that's essentially right. there has been under the jurisprudence with regard to allstate insurance and alaska and so forth that there is a minimum due process requirement to decline to apply in another state.
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>> we can say the only marriages in new york or marriages concluded in new york. >> i'm sorry? >> you can say the only marriages we acknowledge in new york are those marriages that have been made under the laws of new york. >> yes your honor. >> really? >> what case would decide to support that? >> i'm not sure binders to the question correctly. >> i already have several cases to read. i might as well get another one. what is the case that holds that the state of new york has the right to recognize marriages made in new york and when you marry in virginia and new york has the constitutional right to say we treat u.s. if you were married whoever you are. >> let me make sure i understand the question.
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if i understand the question was whether new york would recognize and not a state marriage but did not comport with new york's law? >> because it is clear if the same. the state cannot say it applies than that other states aren't. >> even though is the same as ours? >> like new york for example. a federal judge from washington could marry someone. you can get married to your own wife but you can't married to other people. the district of columbia if i marry two people in washington d.c. and they happen to move to new york they are saying new york doesn't have direct nice that marriage because it doesn't comport with the marriage in new york. is that your point? >> there are few people that are
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going to get nervous about this. >> my answers based on the court's decision because the state's own its own policy in the other states would be in conflict with that states policy policy. >> in the policy would need we trust judges from outside of the state and even that they could get away with in your view. and i'm next going to ask what is the difference between that kind of policy and the policy that says while we don't recognize gay couples marriage for the reason we fear that gay couples get married even if they have children and adopt them and even if we allow a gay to get married and they don't have children despite all that this policy was to have a little trouble understanding warrants. did you follow that question? >> i'm going to try to answer.
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i think your underlying focus is not just that there is a policy but that there is a legitimate policy and is this court questions earlier indicated i perceive now that the court has decided the first question in the states favor in its determined the states policy to maintain a traditional man woman definition of marriage is indeed legitimate and we obviously agree that it is in the court should set aside. >> it doesn't have anything to do with article iv. none of this has anything to do with article iv. >> full faith and credit. >> full faith and credit provides the back run for the states to be able to assert that we have the right to decline to recognize the out-of-state marriage based on the out-of-state -- is the full faith and credit applies to judgment. you find it offensive to your
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policy. that's the decision. >> yes your honor so in essence by deciding whether not to recognize other state marriage the state is deciding whether not direct nice another state's law under which that marriage was performed. >> i'm sorry you don't cf. bundled the -- 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? it states regularly don't say that the progress -- prerequisites to marriage in our state are not necessarily against public policy. they may have set it for age differences. they have set up for a lot of
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things. why wouldn't the gay marriage issue bestows -- that it could lead them to exclude a whole category of people from recognition? >> it goes your honor to the essence of what i think both questions before the court today get out and that is this fundamental notion of what marriage is. 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. we have observed that when all states were on the same page about what marriage is that's
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where it evolves from that every state has the same definition. every state shares the same interest that there was a liberal policy of recognizing marriages from one state to the other. >> do you think marriage decrees are closer to laws than they are two judgments? you need to get a judgment to divorce and i think in my mind that makes the decree much closer to a judgment that it does to a law. >> i think the performing of a marriage is closer to laws because in essence when the marriages performed all the rights that flow from that states laws evolve to that couple and it's different than judgments. it does not deserve the same kind of treatment that judges work under the full faith and credit jurisprudence because of the reason this court has drawn.
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>> what is the order of the constitution or act under the constitution that is not a judgment? >> that's the first -- i didn't catch the first part of your statement your honor. >> not all judgments terms were used or four different terms were used. >> tax records and judicial proceedings. my understanding of the court's jurisprudence has been that refers to to laws in record and judgments in other states. marriages have always been treated as a conflict of law matter throughout all the years. in fact he gives rise to the entire conflict of law doctrine which is commentaries on the conflict of law. >> outside of the present controversy when was the last time tennessee declined to
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recognize a marriage? >> any marriage are on a? 1970 was last when i can refer to that involved step daughter and step-daughter. i would hasten to add because of what i started to describe with where we got to this point while states were all playing along under the same definition of marriage but they confront in an unprecedented fashion was some states changing the rules of the game if i could extend the metaphor. >> so they weren't playing along with the same definition. there buys than stations based on age and family relationship so they want playing along under the same definition and still despite that it is apparently quite rare for state not to recognize an out-of-state marriage. >> it was and is quite rare salon as we are talking about what marriage is so long as we are talking about fundamental man and woman marriage and that's my point as soon as the
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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 not surprising that they determined in keeping with their own laws that they would not recognize those other states marriages. >> it puts you in a very unusual situation because first of all we have to assume the first question has been decided against the petitioner. we have to assume that we would hold that this is sufficient reason for limiting marriage to opposite sex couples. and he acknowledged that the state could refuse to recognize an out-of-state marriage if it has a strong public policy against that marriage if it's a
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marriage of very young individuals. the question is whether there could be something in between. if there's a sufficient reason for the state to say we will not grant these licenses ourselves but not a strong enough reason for us not to recognize a marriage performed out of state and i suppose that is possible isn't it? >> let me answer it this way and hopefully i answer your question doing so. let me be clear the justifications have grown over time worst on public policy reason to decline to recognize marriage have grown up around the man woman definition. our position is so long as we are talking about a marriage from another state that is not a man woman definition that is simply interest in maintaining a cohesive and coherent internal state policy with regard to marriage that justifies not
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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 -- >> people who are not permitted to be married do they come back to their home states and their home states follow the rule to a marriage celebration? >> again we are talking about the fundamental distinction between marriage as the traditional definition and the same-sex marriages that other states have adopted. >> the prerequisites are always the state's judgment about marriage but what should be a recognize marriage. >> your honor the difference here is that the landscape that we find ourselves in tennessee
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ohio kentucky and other states with the traditional definition of marriage have done nothing here but stand pat or they have maintained the status quo and other states have made the decision and is certainly their right and prerogative to do so to expand the definition to redefine the definition and then to suggest other states that have done nothing but pat must now recognize those marriages imposes a substantial burden on the states ability. >> a divorce does become decreasing in the nation. it must be recognized by any other state. it's not the act of marriage. >> understand your point your honor and again i think it falls within the court's recognition of distinction between judgments
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and laws and here i think we are dealing only with laws and again it would allow one state initially we really one state and now a minority state to legislate fundamental state concern about marriage for every other state quite literally. that's an enormous imposition and intrusion upon the states ability to decide for itself important public policy questions. and to maintain particular talking about recognition there is an impact that occurs when once they are asked to recognize another state's same-sex marriage because of the fact the relations policy has been built the expert patient that there is a man woman relationship. in winter this court observed that marriage is the foundation
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of the states ability to regulate domestic relations and to give you one concrete example, that comes up in this case itself, one of the incidents of marriage is the presumption for parents -- parentage that comes with a marriage. for the state to be required to read nice another state's marriage where there's a child of that marriage in a same-sex situation would fundamentally alter the state's definition of parentage. >> i understand your argument as if on the mental public policy question as whether we would recognize same-sex marriage are not that i don't see the difficulty in following the consequences of domestic relations laws. the first question is a big step but after that it seems to me the question of how you applied the domestic relations laws is
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pretty straightforward. >> as. >> as part of the reason i wanted to mention this in particular because a large part of the focus has been on the impact on the children that are involved. i think it's important for the court to recognize that in many states and i can tell you in tennessee the definition of parents has always been biologically raised. that marital resumption of heritage -- parentage has its foundation in man/woman relationships so if this they were required to recognize same-sex marriage and therefore change the pronouns and change the date. >> they do that for adoptions. what's the problem? this is a really big deal. >> it is a big deal your honor because you are changing the way the state defines a parent and you have to understand adoption
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and the traditional definition of marriage work in tandem. they work together and as mr. mr. birch describes the objective with regard to marriage is children with a biological parent. without rates down theirs. >> do you think the state would fail to recognize the birth certificate of a particular state? >> do you think the word records in the constitution includes birth certificates? california without any reason no suspicion of fraud no anything. could it refuse to recognize another state's birth certificate? >> i have to admit your honor i can't speak to that.
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>> records to me have to have the meaning. >> it does your honor. the reason i know there is disagreement in those cases about exactly what the impact of that is between whether or not we acknowledge the existence of the record or evidentiary purposes or whether the effect of the record has to be acknowledge. >> i recognize that that's an issue but if a birth certificate were to be a record don't you think the marriage certificate is an official act of the state? >> the marriage certificate is a record and i guess it goes to the point, it it certifies the fact that there was a marriage. i think the laws that allow that marriage to occur when they are different fundamentally with the laws of a state like tennessee precludes the application of that same principle from one state to the other.
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with regard to the effect over acquiring recognition of the state it's important also to consider the fact petitioners have complained about the impact that it has when they moved from one state to the next with regard to the rights that they enjoy under the marriage as it was defined in new york for example or california. federalism accommodates the situation. it is the strength of our federal structure to accommodate the very difference in viewpoint and a very different approach that this fundamental debate we are having about same-sex marriage generates.
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and so it makes all the sense in the world with respect to that to allow the federal structure to do what is designed to do and to accommodate those different points of view and that is why we asked the court -- asked the court to determine to disrupt that balance and impose a duty on one state to wreck a nice the of laws and to recognize the marriage of a different state because of the intrusion would have on that state's public policy. mr. wheelan just a quick question. you would knowledge if the state loses on the first question than the state also loses on the second question? >> yes, your honor. >> no further questions. >> thank you mr. -- thank you counsel. >> thank you your honor. if i may start with the assertion that tennessee's laws laws -- in biology. that is not so.
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tennessee and i'm going to quote from 3611, i'm sorry 683306 referred to on page 15 of our reply provides that a child born to a married woman as a result of an artificial and dissemination with consent of the married woman's husband the father is deemed illegitimate child of the husband and wife. of 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 couple is of opposite sexes. the import of that for real people like doctors tonko and jesse is that they have fell in love and married in new york as
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academic couples were able to sign a petition at the same university in tennessee. they moved their and he has given birth to their daughter in tennessee. as a result of the nonrecognition clause as occurred last week their daughter is hospitalized in tennessee would treat dr. jesse, not his mom as a legal stranger with no right to visit her child, no right to make medical decisions for her. these have real import for real people. although i think counsel was suggesting that federalism and among 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 he and his husband didn't have a choice. united states army moved them to
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tennessee and given the location of army bases is 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 is a matter of state law. i want to get back to you just as sotomayor about categorical and how on precedent that it is. even in the age of antidiscrimination laws such as for purposes of a state giving out the proceeds after a death or otherwise. he helped lead for the state statutes provide that a marriage shall be given no effect for any reason even with the husbands death certificate will not reflect the fact that he was married by the name of his
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husband. the state has no legitimate interest for denying them the dignity of that last fact regarding his life. the report of the state's argument as i believe this. even when same-sex couples are married they are not in their view married for constitutional purposes. the states can't 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 in our constitution a second-class status of these petitioners marriages. thank you very much. >> i think the council. the case is submitted. >> wrapping up two hours and 20 minutes of oral arguments on same-sex marriage in the supreme court today here on c-span2 we are going to light up or phone
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lines on your thoughts and your view on same-sex marriage. here's senator in the conversation. you support same-sex marriage number to call is (202)748-8920, if you oppose 202-4878921. i just want to let you know we will re-air all of the oral arguments beginning tonight at 11:00 or so eastern and be 8:00 p.m. pacific coming up here on c-span2. just a recap these are cases that the 91st 90 minutes cases from michigan and kentucky. in that case they looked at whether the 14th amendment required that states like same-sex marriages. the argument that just wrapped up the shorter the two arguments the focus was on whether the 14th amendment required states to recognize same-sex marriages that are otherwise legally performed in other states so
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again we want to hear from you. you can also join us on facebook at facebook.com/c-span. we will look for your tweets as well as c-span chat. a busy facebook page today. we look at some of the comments previous diane this is fine for traditional marriage and if people want to live together as their choice. they are just between a man and woman that's god's plan. linda says that we believe in the declaration of independence and our constitution? you cannot profess belief in our core document and against marriage equality. james says come on judges keep marriage between a man and a woman. that's the way god made it and can thus says the hope we are all watching and learning from this. again you can get a chance to see it coming up tonight at 11:00 eastern on c-span2 and you can watch it anytime including oliver coverage from outside the court in today's "washington journal" program anytime on line
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at c-span.org. let's get to some calls. first we go to debbie in texas who supports. go ahead. >> caller: yes people can't help who they fall in love with and the times are changing. it's really a personal choice so why are the courts and the government trying to put their nose into the business where it doesn't belong? >> host: what is the law in texas? >> caller: i'm not really sure but what's the difference in the two men adopting a baby than a single woman adopting a child? that wasn't addressed on the show. you don't have to have two parents to be a good parent.
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>> host: thank you for your call. the congressman has adopted a child one of the gay members of congress. he posted this three. a historic day in the supreme court. we all deserve equal protection under the law. that is jared polis. across the street from u.s. capital asking you your thoughts on same-sex marriage do you support or oppose. albert belle alabama bruce, good evening. go ahead. you are on the air, go ahead. >> caller: okay, i have those same-sex marriage because marriage as we all know was designed way before there was united states of america. it was designed -- defined by religion. we know that -- >> host: hey bruce listen to
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your phone and you won't get confused. go ahead. >> caller: squirrels don't get married, people do. the survival of the fittest is the only thing that tells you about secularism. it's always defined by religion. way before there was the united states of america people were getting married and it was by religion. even native americans were married by religion and it was always defined as a man and a woman. >> host: vespers from alabama. reminder the phone lines (202)748-8920 and (202)748-8921 if you oppose. we remind you to turn down your television or radio. we welcome listeners with us. he went c-span2. next is -- what are your thoughts?
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cocco i am in support of same-sex marriage. i'm very concerned about the brother described in this country and the growth of the religious right. that's really i -- i'll have to say. >> host: one of the cases today dealt with whether the state will recognize the 14th amendment requires states to recognize same-sex marriage. what is your sense from people in michigan on how they feel about the issue? >> caller: well i will tell you it's very much divided. in michigan we are blue state that i want to say i live in a rural area and is the same for practically any state you go to. if you go out in the rural areas where the corn grows you are in a red state so i am surrounded by people where i live who are against this.
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and they do it for religious reasons primarily. and that's a big concern for me because we should not be controlled by the religious right in this country. >> host: let's go to our other line for opposing same-sex marriage greenwood florida, georgia. go ahead. >> caller: i opposed gay marriage in the first place. they have the right to adopt children and put them through living hell when they start school. most children know that it takes a man and a woman to produce a child. when that child is eight years old -- when you get that child in school people pick on the menu called bullying. it ain't bullying. it's a damnation of our country. it's destroying that child life
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to have 22 parents at the same sex. >> host: have you seen some evidence of the examples you are talking about in greenwood? cocco there was a couple that adopted a black child, a white couple and he had some trouble and they gave the child back. the children at school said hey you have gay parents and if they gay lost a former contract to have a relationship with a gay that's their business that marriage is between a man and a woman. >> host: hashtag we are using here's one from kevin that tweets this isn't about religious marriage. this is about civil marriage and religion has no grounds here. support or oppose same-sex marriage, two hours and 20 minutes in the supreme court
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today. we are going to hear it again at 11:00 eastern on c-span2 anytime on line at c-span.org. charles town west virginia tony good evening, go ahead. you support same-sex marriage. >> caller: good evening, how are you doing? is the fact that those who oppose it have to twist themselves into such pretzels to oppose it. it makes no sense to restrict people and prevent people from living their life how they want to and it's not the governments job. so people who are opposed to same-sex marriage they really have no basis to do so. >> host: we are looking at a video interview of steve king of iowa and he is pretty vocal in his opposition to same-sex
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marriage in a number of speeches on the house floor. another tom huelskamp of kansas tweeting i will stand with the 50 million americans talking about today's -- and let's hear from morris morrison houston texas also opposing, i'm sorry houston we will get to a second. shirley go ahead. you oppose same-sex marriage. were you calling from? >> caller: arizona. >> host: go ahead with your comment. >> caller: my comment is the definition of marriage does not fit same-sex so therefore's impossible to make a decision on this the way they have argued it because the definition would be a merger and there can be no merger in same-sex marriage in order to create children. therefore they would be arguing that way maybe they would, then conclusion. civil contract would produce any of the things they needed to
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protect themselves and that's what they should do rather than trying to be something they cannot be. >> host: what is the situation in arizona? what is a lot of? >> caller: we voted for the definition of only a man and a woman as defined. many generations ago cultures and creation marriage between a man and a woman. instinctively there was a ban on same-sex relationships historically and nearly all generations of time until recently. my note was undercover stuff as far as making legal action possible to support this. >> they are not quite done with their terms. they have another not quite two months to make a decision on this case likely late in june.
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the cases because the two parts are a combination of several cases from kentucky michigan ojai a and tennessee. let's go to tennessee next. we hear from ccn nashville supporting same-sex marriage. >> caller: hi how are you doing sir? i am who i am. we can't sit up there and say that two sexes cannot raise a child. thank god that i had a father in my life. my mother didn't try to be my life because she was always thinking about money but at the same time i don't sit up here and raised two kids and adopt to more. they turned out perfect and right now my oldest is graduating high school. at the same time to sit up there
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and say who are we to say who can laugh and you can't. that's a problem now with the world. where's the love love? where's the peace? we are sitting here looking at all the stuff going on right now with guns and everything. they were into the streets because they feel like they're not look. as a couple more minutes are your calls same-sex marriage. let's hear from houston and this is maurice who opposes same-sex marriage. paul: thank you very much. i have to tell you i'm so glad i can add a voice to this. first and foremost we need to recognize that marriage was never defined by man. who decided marriage was an i.d.
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of bringing two different opposing individuals together. that is what constitutes marriage. if in the course of human history we have tried to rationalize something from an original concept that is where challenges coming from. we have to understand marriage is defined by a woman and a man and we don't marry animals and we don't allow these to be called marriages. we have to be able to respect the sanctity. a woman is totally different from a man. it's only when you put the two of them together is when
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marriage becomes reasonable and sensible and the eyes of every sense you can apply. >> host: let's hear from fayetteville north carolina and carlos good evening. go ahead. >> caller: good evening, how are you doing? the two cases between -- before the court i believe the question on whether same-sex couples should be allowed to marry but i also believe the constitution -- the reason being that the states have to be allowed it to recognize licensing and license ensuring as they see fit. eight dr. doctor who is licensed in florida and minnesota recognizes its license to
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practice medicine. the same thing with lawyers. the other thing is as far as that goes writes people out there it would require states that fail to recognize a legal concealed carry license is granted. that rings up all sorts of havoc that the petitioners in this case have got to realize. >> host: but me recapitalize. you believe should states recognize same-sex marriage but they won't change the ruling on whether states should recognize a legal marriage same-sex marriage from another state tax. >> caller: yes my belief one of the justices let on to that question thing if we answer yes on question one will it involve question 200 gives him that
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train of thought. i think they are believing the same thing. >> host: a couple of comments on twitter don says i support same-sex marriage and john says why don't people understand gay is a sickness. jerry and stafford virginia opposing same-sex marriage. did you get a chance to hear much of the jury today? >> caller: i listen to all of it. i actually watched it live. my concerns are number one the majority of people have failed to define a word for what that word means in the majority of the population in the united states defines marriage between a man and a woman. i am not opposed for them to be united with the same exact
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rights. my concern is why are they so bent on making sure that it's defined as marriage? legal unions, anything else we did find that the term marriage was created by religious factions and religious factions should not be forced to marry anyone but if they don't fit the definition of that and that there are religious right protected by the constitution. >> host: what you do you do about the civil situation where you have cities that have town clerks and justices of the peace who issue marriage licenses that are not related to her religion obviously. what do you do there? >> guest: >> caller: the state has a right like the state of virginia we have a constitutional amendment that says the definition of marriage is a union between a man and a woman
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and it was -- by all the constituents of the state of virginia and we did it as a constitutional amendment. therefore we decided that the definition. we have that right as a state to define what the meaning of marriage is. it doesn't mean they can't be united under the same guidelines with the same rights and privileges as a married couple but they insist on using the term marriage. that is what i can understand. if they have the same rights as a married couple than what's wrong with it if it's defined as something else? >> host: let's hear from pittsburgh. david is there and he supports same-sex marriage. hi david. >> caller: you know i support same-sex marriage although i don't know why anyone would want to get married but that's beyond the point. the arguments against same-sex
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marriage i've been hearing recently are based on religion and they all talk about the definition of marriage. i have never ever seen anywhere definition of marriage anywhere. one of the lawyers in the argument today in the supreme court used the word dictionary. this is an accepted definition in the dictionary but i don't think the dictionary is a legal document. the point is there really is no definition. there is a tradition that tradition doesn't necessarily mean that it can't change. the religious argument only holds up if there is a god or you believe in a god. i don't believe in a god so they don't mean anything to me number one. number two top the arguments that this marriage is defined in the bible what bible are you talking about? there was no bible dug up out of the ground. the bible there are many bibles written by many different
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versions by different authors so i don't think you can point to god or the bible to say this is the way it has to be in the supreme court has no right to violate these religious traditions. >> host: what about people who do believe in a god who are concerned that perhaps some states making laws that legalize same-sex marriage somehow infringes on their first amendment that congress shall make no law affecting the practice of religion. what do you do about that? >> caller: well i don't think giving people equal rights violates someone's religious rights. it's not like i was going to force somebody to accept gay marriage to go to a gay marriage ceremony or anything like that. people have the right to their beliefs and they can stand by their principles. there is nothing forcing them to do anything in this regard. >> host: thanks for your call.
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let's hear from john ruiz in arizona. hi there. go ahead. >> caller: i sort of agree with the previous caller where he said marriage is defined tradition between a man and a woman and it's been that way for thousands of years. anybody but thinks that they should call it something else is trying to take that institution and use it for their own use. i suspect and i don't have anything, any agendas here at all not even a religious agenda but i suspect the real impetus between trying to help a marriage ceremony applied to men
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and men and women and women is an attempt to try to normalize their particular situations with the rest of society which they can have -- though they are smart and they have good lawyers. they can have a civil union and they can have all the rights and privileges of people who live in the same household for whatever purpose. but marriage is between a man and woman and they ought to have the right. why does the supreme court and why does anybody have the right to change the definition of what marriage is? >> host: we appreciate your call. we have a couple more coming up. the hashtag is c-span chat figures one from andre the tweet
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same-sex marriage should shouldn't be an issue. marriage is about love. no one should be a second-class citizen. tony says wayzata requirement that married couples have two procreate. we need to adapt to the changing times and changing ideas. the lbg t. q. community deserves equal rights in the tweet from gary palmer congressman from arizona says the supreme court should not strike down -- two years ago. we go to alabama next alexander city in alabama. this is donnie who is supporting same-sex marriage. good evening. >> caller: how are you doing? the reason i'm calling is i'm looking at this and worrying about the think its round versus virginia. >> host: the loving case?
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>> caller: the loving case and worrying about the ramification of the state going one step further in saying that inter-racial couples who don't recognize their marriages from another state. we can go further along in every state can start recognizing these issues and is just one step further from gay marriage. >> host: appreciate your input. let's get one more from james who is in tennessee. welcome. >> caller: hello sir. wiscoy uber on the air james. >> caller: i'm opposed to gay marriage and the fact that it's always been created in the law as a man and a woman and it makes me nervous that a gay couple would want to go to the
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point that they would be able to adopt children. as their children get older and they are middle school kids and high school kids, they may make new friends in the future and it's like you have two daddies? do you have two mommies. now what's going on? >> host: james you said it makes you nervous. why is that? >> caller: it's just upsetting. i don't want to see children at all getting picked on. >> host: i appreciate your call on all all of the calls this evening. more tomorrow as the conversation continues on "washington journal" on c-span beginning at 7:00 a.m. eastern preview can see some of the videos that we have in court all day today. we also heard from a lawyers, several of the lawyers involved in the many cases that have been
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combined in the oral argument you are today. let's take a look at what some of the attorneys had to say this afternoon outside of the court. [inaudible conversations] >> hello everybody. thank you very much for being here. today was a fantastic day. the basic issues of equality and family are before the united states supreme court. there are so many people, millions of people across the nation who helped create the state to make a possible, people whose names we will never know but certainly the legal team the political team people in every state to try to stand up for equal dignity of gay people
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because gay people are part of our common humanity and citizenship in this country as well. we are very happy to be here and again. grateful to everyone having have this opportunity today. last but not least the real heart of this issue always every day as real people who are committed to one another who simply want to make that commitment a legal one and take responsibility for one another to have that support and that is where we hope it will all end up in the end. thank you very much. [inaudible conversations] >> it promises equal protection and due process and liberty for all right now. it's not a popularity contest.
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it's their job to make sure that every individual's liberty and equality is protected regardless of state law. i would certainly say what happens is people see the joy, they see the commitment and they support the marriage. thank you. >> today we had the chance to make a case for helping this country live up to its promise to become a more perfect union and even those who have been excluded can be included in the opportunities for a fulfilling life and that their marriages can be respected in the same way as people's marriages have been respected in this country for centuries. it was a wonderful chance to speak of their personal story to make it real for the justices
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because in court that's what this case is about, the real lives of real people, real couples and the children who obviously benefit from the stability of those marriages. we welcome the opportunity to answer the justices questions and i know that mary and i trust that they will reach the right result. thank you. speak -- i am greg bird care of my husband today michael. we are plaintiffs in the kentucky case and we also have our two children here. we are joined today with five other couples from the state of kentucky. we have six plaintiff couples, very courageous families from kentucky have stepped forward to it challenge kentucky's ban
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against same-sex marriages. we are so proud to have joined with these other families. we have for families who are seeking recognition of their legal marriages from other legal jurisdictions and we have to couples who have been waiting a very long time to get married in the commonwealth of kentucky. each of these six families have all been so courageous. they have fought a hard battle. they have put so much time and effort into this. you have no idea the investment or families have made it to this cause. it's an easy thing for our family to do than then to pack up and leave the commonwealth of kentucky. we are proud kentuckians and we don't feel that we should have to leave our state so we can get the same treatment that other couples get in other parts of the country. we are staying in kentucky. we will be together until death do us part as we thought when we got married and we ask for equal
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treatment and protection under the law. that's all we are asking. for all of us in kentucky we are grateful for our legal team. we recognize the work that they have done and we are so grateful for all the support we have received and of course we truly believe the justices when they look down on all of our plaintiff families. these are real people and i saw a real lives and they saw so many love stories. we have the best love story you can imagine. to get to know the plaintiffs in kentucky or ohio or michigan or tennessee they are all tremendous love stories and the justices looked at us today. they saw our families and base our love and i don't see how they can come to any other conclusion except they have to recognize our marriages as legal and valid. they can't tell same-sex marriage that they can't get married in the commonwealth. thank you.
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>> my name is april before. we are a michigan plaintiff. we took this case on for the protection of our children. we stand before you one step closer to being a legalized recognize family in the state of michigan. we are honored to be standing in front of all of you honored with our attorney mary dana carol cass and bob and all of the plaintiffs who in michigan tennessee ohio and kentucky. spend an honor and hopefully we are on the right side of history and our kids will now have equal protection. thank you. [applause]
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>> i am an american citizen. i walked up the steps into that courtroom today as an american citizen and i read those words engraved over the front door equal justice under the law. my husband was an american citizen. he died and i am fighting for our right to be recognized and respected as full united states citizens. i deserve to have my husband death certificate recognized me as his surviving spouse. i deserve the respect to know that my state, the state ride grew up come the stage where john and i built a life together where we were productive members of society cannot change that death certificate. we deserve the same respect as any other couple.
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i have a friend who is joined in this case who are raising children. they are committed married couples with children. they deserve the same rights, respect and responsibilities as every other family and our country. our country is based on the constitution and the constitution demands equal rights and equal treatment under the law. i walked into the courtroom today expecting that to be the outcome. i hope that is the outcome. i am positive and i trust in the supreme court to uphold this ideal that our constitution enshrined, equal justice under the law and equal treatment. we all deserve the same civil rights. i'm honored to have been able to be part of this and to stand up for my friends kelly and kelly
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pam and nicole brittany and brittany, joe and rob and yes my husband john. ..
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and i really hope that we will be considered equal under the law. thank you. [applause] [speaking in native tongue] 's. >> and now questions. [inaudible conversations] >> i guess there's some speculation. anything in their questions.
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[inaudible conversations] >> i think it is hazardous to guess based upon the questions that the justices asked. they happen to be very interested in all of the issues in the case. [inaudible conversations] [inaudible conversations] >> the very process by design is the judiciary decides these questions. the constitution guarantees equal protection because of equal dignity under the law
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which is the very question facing them. you don't decide fundamental rights and equality by headcount. over 100 years. [inaudible conversations] what were your thoughts about them? >> the telling thing is the case is loving the virginia. the court affirmed their right without referencing. so i suspect the resolution here will likewise be on that basis.
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[inaudible conversations] [inaudible conversations] >> the job of the justices is to ask questions. certainly they had a lot of questions. the questions all the way up to how far this would go. test everything. and that is what we heard. >> same-sex couples. whether or not that regulated. >> the question was about the significance of the children of same-sex couples and we think it is critical to the primary interest the well-being of children. of course the children of same-sex couples no less
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than the children of opposite sex couples. the state denies them. it is highly significant that the court recognizes that same-sex couples do have children. their interest is very much at stake. >> i would like to add to that, michigan is in a position of placing potentially vulnerable children with the michigan petitioners healthy, young kids. a position now saying because these parents did not conceive them together that somehow they are to be denied the protection of having married parents when michigan in a heartbeat would allow any same-sex couple to adopt.
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these rules are not good for children, not good for families and not get under the constitution. [inaudible conversations] >> don't answer that. >> the state said wait and see how this turns out but that is not neutral. ruling against the petitioners. without a doubt you are constitutional rising a second-class status and endorsing the families are inferior and will invite discrimination that the court has recognized when a law projects people to an outlier status. they will be a difficult time in our nation's history [inaudible conversations]
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>> were going to go home and relax. >> i represent the state of michigan. this case is about love and democracy. you can love your neighbor no matter their sexual orientation and still have a disagreement about what mitch -- what marriage means
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people acting through the democratic process with the government. our position is it has been the people. >> an issue about how you cannot offer. >> different marriage laws. the three key justices are justice kennedy. he said, this is the definition we have had for millennia. how are we in a position to the side. the same. wise of the nine of us get to decide. chief justice roberts said we did this question it will cut off the debate that people will normally have to
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the democratic process. [inaudible question] >> that really does have to do with people deciding. equal protection. the court has long said the state has a legitimate interest. michigan as a number of justices noted had a reasonable a reasonable reason for defining marriage the way that it has. it has everything to do with people sitting down with each other and talking about these issues. when the court takes social decisions like this away from the people it cuts off debate hardens positions and people are forced to sit down and talk civilly and
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compassionately where a much better democracy for that. [inaudible question] >> exactly the way we expected. they asked great questions, and we look forward to a decision. [inaudible question] >> you are against same-sex marriage. >> the state is not against any kind of marriage the people can change that if they want to after a dialogue and passionate debate. >> a lot of discussion about substituting their position. >> absolutely. that is our core position. it is not the job of the
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federal court to decide for the whole country with something as important as marriages. you have to let people decide. >> chief roberts sexual discrimination. >> that was a fair question. the president specifically in that case mentioned. having any kind of state law based upon biological differences that are legitimate. the colloquy that we had the government has a legitimate interest in forming bonds between parents and biological children and that the state has a substantial way of advancing at i trying to make that stronger which is what our argument is all about. >> this argument that somehow recognizing same-sex marriages would lead to more
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children being born out of wedlock. can you explain it? >> you talk about something as fundamental as marriage anytime you tweak the definition there will be consequences as applied over many generations. no file divorce laws which everyone thought would be beneficial. we see that that is not the case. it it is not our position we have to prove or can prove a we will happen. reasonable reasonable voters might think when you change the definition something will happen and there is a reason regardless of religion all the way back to plato and aristotle and that the people have to make the decision whether to make a change. >> absolutely. i think what i i just
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mentioned acknowledges that people have to make fundamental choices. the fundamental liberty interest is the right to participate in the democratic process and decide for ourselves how we will govern society. [inaudible question] >> john birch. >> all right. thanks. >> all right. [inaudible conversations] >> on washington journal we will hear from the heads of the national organization for marriage. this is one hour. www.c-span.org. there a page you can find and check it out for yourself later. as the supreme court meets today, two guests are joining us to talk about the court decisions and the implications of what the justices have to decide. we are joined by brian brown the president of the national organization for marriage, and also joined by evan wolfson
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founder of the group freedom to marry. he is the founder and president. gentlemen, if i read it correctly, at the center of the case is the 14th amendment. why does it center on that particular amendment? guest: the 14th amend it embodies to central guarantees that are at take here, what is the freedom to marry itself, and the other is the constitution command of equal protection under the laws for all americans, that the government cannot discriminate against any of us unless it has a sufficient and sometimes compelling reason to do so. the denial of gay people's reason to marry has been a refusal to allow gay americans like any other americans, to enter into this commitment based on love and security in being treated equally by the government. and there has also been a denial of equal protection because there is an -- there is no good reason for exclusion of gay marriage.
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65 quarts and said that, and now we are before the supreme court hoping they will affirm, but -- what the majority of the american people have come to understand. host: what do you think about the argument in the 14th amendment to go ahead and litigate these cases? guest: i think everyone around this country who even has a entering of -- a smattering of looking at constitutional law and the history of this case would say, how can any judge claim that in passing the 14th of them and that somehow we got same-sex marriage? and that is just the know when you would until now? that is preposterous. we are being asked to believe that in 1868 same-sex marriage was at stake with the passage of the 14th amendment. that was not true, and only a few years after, congress said, utah and other western states, you cannot become states if you allow polygamy. all of the arguments evan is
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making, equally all of those arguments could be made, why not three or four or five people? there is nothing in the constitution that states that states have to redefine marriage and there is nothing in the constitution that is somehow a bridging anyone's rights. it is a false analogy to compare laws that define marriage, laws based on marriage being between a man and a woman, defining them as anything that has to do with a long history of race going back before the 14th amendment. host: if the 14th limit is used in this case and the justices allow same-sex marriages? caller: no, what gay people are not saying is let's have no rules. gay people are saying, let us have what you have. just as you have the freedom to
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marry the person that is precious to you, the person you want to build a life with and take responsibility for and be cared by -- be cared for by, government should not be putting restrictions on that choice based on race or religion or sects or any other categories. categories do not follow love. people fall in love. and the government ought to make sure that we are all free in our exercise of freedom to marry to choose the person that we love without restriction, especially restrictions that have no good reason. and what we have seen over the years and through ruling and ruling and in court after court -- it's not just my opinion -- is that when given a chance to come into court to come in with evident to show a reason for this restriction or that restriction, the government has not been able to do that. and mr. brown and his group have not been able to come up with any reason that withstand the
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test of analysis. and that is why we are hopeful that the supreme court going to do what so many other courts have done will stop guest: the reality is, the court that counts mainly is the court of public opinion in the ballot box. when we disagree on an issue people should have their votes counted and respected. mr. wilson going before the supreme court, that is not winning the law -- winning in the court of public opinion. only three states through a public vote have in any way moved in the direction of same-sex marriage. to say 37 states have same-sex marriage is simply to say that in 37 states, judges that they had the right to trump the will of the people to impose their public policy views. and luckily, one circuit got a red -- got it right, the sixth. and the picture that evan is
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painting is simply untrue because one of the circuits did make very strong argument saying whatever the judge's policy preferences are, the judge does not have the right to say the people have no voice in this issue, and also clearly nothing in the 14th amend it -- amendment protects same-sex marriage. the reason we are in this issue is because the circuit courts did define marriage as between a man and woman. and he says we don't want to support polygamy. what about their rights? what about equal protection for people who want three or four or five people? you have to make the case as to why it is not abridgment of their civil rights in the same way he is claiming i'm doing, or that the millions of americans
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who are voting for gay marriage are doing. host: if you would like to join the conversation, the numbers are on the screen. my apologies, mr. wilson, go ahead -- mr. wolfson, go ahead. guest: 63% of the american people now support the freedom to marry up from 27% when i started doing the trial in hawaii. and the reason for that is that people have had a chance not to just here fear and scary stereotypes, but to think about real people and real values and to think about who gave people are and why gay marriage matters -- who gay people are and why gay marriage matters. that is why we have the majority of support under age 50.
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the other thing that mr. brown gets wrong is that not everything in the united states gets put up to a vote. we don't vote on whether i like you and therefore whether you should have right. we'll vote on whether you should have freedom of speech or whether mr. brown should have freedom to marry or whether i -- we do not vote on whether you should have freedom of speech or whether mr. brown should have freedom to marry or whether -- sometimes politicians get it wrong. when it comes to those individual freedoms that define us as americans we have the opportunity to say i'm being denied something i deserve. that is not a question of policy. it is not whether i like mr. brown and he should have free speech. he has free speech. he has free-speech whether i like what he says or not because that is his right as an american and it is the constitution and the courts that enforce that. and that is why we are in court today, because states have taken away a basic freedom that
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belongs to every american. as the state have had a chance to think it through and the courts of looked at the arguments and the evidence, they say there is nothing that violates the constitution and that is my hope the court will affirm in this case. host: mr. brown? guest: clearly, our founders understood that free speech was a key part of what our rights are. they did not think that same-sex marriage was an essential right. you are seeing an attempt to create out of the history of the law something that does not exist. we have seen bogus polls like this. we saw them in california. one poll said about 63% of californians were going to oppose proposition eight. instead, we won by 52%. fast-forward to north carolina. many polls predicted we would
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lose in north carolina. instead, visit vote -- the vote for protection of marriage one by 62%. the poll that counts is the fact that people went to the ballot box and voted in overwhelming numbers to support marriage as the union of a man and woman. the only way that evan and his group get around that is by making are committed that is more damaging to our civil discourse, and that is to say if all of those americans who voted for -- that all of those americans who voted for traditional marriage were bigots. that it was in a rational vote and it was motivated by animus. if the supreme court chooses to support this then do they think that those who know the truth simply will go away? no, just like what was done with row, you have created a polarization that will not go away. -- just like what was done with roe, you will have created a
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polarization that will not go away. host: let's take our first phone call from bruce. caller: good morning mr. brown i'm glad you are there. you are just the fellow i want to talk to. in 1971, i published an article called "glitter and be gay" and at the end of the article i suggested that gay marriage was an inevitability. the reason i want to speak to you this morning, aside from the fact that i am the grandfather of this issue as far as i know. as i say, somebody else may actually be ahead of me. but i don't know it. as far as i know i am grandpa. the reason i want to address you, sir, is that you are dead wrong on the year 1868. two years before that, the only widely know gay person in america was walt wittman.
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he was -- walt whitman. he was introduced to abraham lincoln and his response upon meeting him was, i had no idea he was clear. -- queer. he doesn't look what a woman to me. if abraham lincoln, the father of america, could not see through the stereotypes into the concrete bumper -- bunker where gay. -- for gay people resided then, then how will the law? the law has always been right as far as the option, but it has never been moved because of the concrete hideaway that your comfort requires of my conduct. i'm sorry, sir. gay marriage is coming, and it coming because of live like mine
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-- lives like mine and matthew shepard, who want protection for ourselves and the people we love and our children. we have no hope of living in the future p simply under protection of law. you have no -- peaceably under protection of law. you have no right to keep us from that. guest: we are entitled to our opinions, but not our facts. we are essentially arguing by folks -- by the way, you can support same-sex marriage and not believe the united states supreme court should create out of thin air a constitutional right to redefine marriage. but again, what we just heard is essentially, if you can rewrite our entire constitutional history, then why not rewrite our history altogether? now we are talking about abraham lincoln secretly supporting same-sex marriage. we are talking about walt whitman meeting with abraham
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lincoln. look, it's very clear that no one up until maybe early 1960's, 1970's would ever make the claim that our constitution includes within it the right to redefine marriage. i think it was in 1971 1972, the baker versus nelson case goes to the supreme case. it's still a binding precedent. it said that the constitution supports gay marriage. the supreme court dismisses it. why? it says this case is for want of a federal question. there is nothing in the constitution that creates the redefinition of marriage. and for the court to say otherwise, again, is not going to end the issue. i'm hopeful that justice kennedy will see what i'm saying. i know that many on the other
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side think this is a done deal. i think you are counting your chickens before they hatch if you think it is just going to rule in your favor. guest: the one thing i agree with that he said is that it is not eight done deal until it is done. guest: good, we agree. [laughter] guest: yes but it will not be over until we go to the people and if necessary, to the courts and an this dissemination. that is why we will keep winning and we will keep doing it. we have one in the last two years all kinds of state courts, federal appellate courts, judges appointed by democrat and republican presidents and governors. we have all lost only three are for the last two years. 14 out of 19 republican appointed judges have ruled in the freedom to marry. and in all of those rulings, my favorite passage was something written by judge shelby indicates that was brought in
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utah. what judge shelby wrote was it's not the constitution that has changed, but our knowledge of what it means to be lesbian or gay. that profound truth is exactly why the courts have ruled in our favor. it is because command of the constitution is always there equal protection for all of us. the freedom to marry for all americans. but at different times in our country's history we have not always seen the "other" and we have not always understood the claim of color to full rights the claim of the minorities, the existence and claim of gay people to participate in america's promise. but as we open our hearts and see people for who they are and see them as americans, then we understand the constitution does apply to them. that is the transformation that will occur. it will be outliers and holdouts who refuse to see and refuse to
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open their hearts and minds, and clean to their prejudices and ideologies and do not go there. there will be son. -- there will be some. but that is why the courts have now been able to apply the law to the people they now see before them and to whom they have come to understand. host: let's go to beverly in chicago on the opposed line. caller: good morning. can you please just let me get what i got to say out? i think this guy sitting here should take this argument up with god. god said a marriage is between a man and woman. he also said to mary and multiply. you cannot mary and -- said to marry and multiply. you cannot marry and multiply. this is god's rule. this is not man's rule.
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and another thing he said, is an abomination. sir, what you will need to do is take it up with god, because he set the rules down. you could not have even been born circa makes it has not been fr ymother and f >> you could not have even been born if it would've been for your mother and father. so if they want to do this okay, but you cannot take away from what god says in this world. when he told noah to come on the arc coming decentering females and males. and if you've forgotten about this, take this up with god. and there is no such thing as a match between two men and two women and i hope this guy sitting here will go to court and let it be known that this is what god says. someone that has domain against all of us. >> that is beverly in chicago. >> yes, beverly in chicago is entitled to review.
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we have freedom of religion and freedom of speech and she can believe whatever she wants. but the united states is not a machine in which any one person with religious views has the ability to impose them on anyone else. the way that we preserve her freedom of religion is to make sure that the government is not used as a weapon to impose upon everly's religious views on the views and beliefs of people who do not agree with her idea of what god wants or the bible says or so on and so forth. there's there is a range of views and i spoke yesterday [inaudible] about the support of freedom to marry, protestant denominations presbyterians episcopalians many and support the freedom to marry, many clergy's in this case urge support for the freedom to marry and only a handful of voices were heard on the other side some of the people just disagree and they are free to do that, i know that
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mr. brown has his religious faith and i would never try to change that, that's a to him. but that is not we will to the courts to do. we don't look to them to tell us who is right and wrong when it comes to religion but to enforce the law under our constitution and our constitution says that all people are entitled to equal protection and freedom to marry. >> the reality when marriage laws are defined as between a man and a woman, it is not at all equivalent with laws that and interracial marriage with laws like that were about keeping races apart, they were fundamentally flawed, it's about ringing the two sectors together, male and female connecting them with any children they might bear. and so i love the call from the lady that called earlier. look, we have 12 to 15,000 folks diverse at the mall on
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saturday at the march for marriage, we had a huge turnout from the african-american and bandit community and it highlighted the interreligious agreement on this issue. and the catholic faith evangelical, pentecostal comedy overwhelming majority of believers worldwide know that marriage is the union of a man and a woman contrary to what some try to argue, we are not about weaponizing the government to punish gays and lesbians that's totally wrong. we are standing up for the truth and beauty that marriage is between a man and a woman. but now the shoe is on the other foot and we are saying that freedom to marry and human rights campaigns, saying that it's okay for you to have your complete david religious beliefs, keep them in the four walls of your church because if you bring them out to the public square a baker or a florist that says i cannot in good faith support this they are trying to
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repress and marginalize them and that is not going to happen, people like the caller called in, myself come in the thousands of people are gathered here, we are not going to the band and this truth of marriage i am hopeful that the supreme court will do the right thing, but if the supreme court is the wrong thing we have some idea that somehow the people of this country are going to abandon the truth of marriage and there will be a few holdouts like the catholic church, evangelical churches or judaism, people of no faith at all they are not just going to abandon their deeply held beliefs, there will be a division and that is the reality and we will work to amend the u.s. constitution to define the unit as being between a man and a woman and to those who stand for that truth. >> to those joining us you just heard from brian brown president of the national organization for marriage joined by evan wolfson coming up next
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we have james on our support line, please go ahead. >> caller: sir, can you hear me? >> please go ahead, sir. >> caller: okay. i kind of think that both sides got a little wrong. it appears to me that if you are going to respect human beings in this and you are going to respect the battle as well you're going to have to learn to get along with one another regardless of what the law says. that's what human now that he is. and so i'm thinking that nobody is seeming to understand we are not going backwards, if that were the case we would still be rioting. as you can understand what is going on in the middle east right now because of what the bible says. and so sometime -- and i am
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truly quite religious and i tried to be but something is wrong how everybody seems not to understand and respect and love is the answer to it all. >> i think that the caller is making a good point and it explains why a majority of americans have moved including a majority of the people of faith they moved because they thought about real values like the golden rule of treating others as you would want to be treated. of respecting other people, of sharing the space of the limited time on this planet and allowing people to fill themselves and to find their path in life and rendering to caesar what is caesar and god what is god and judge not lest ye be judged. there are many values that matter to many of us people who don't think of themselves as people of faith but of the people. they are the central values of
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every religion teaching you to respect one another, love one another, teaching you to be modest in their own views and in your ideas to impose them and most religions in the united states in this era teach that there is a sphere of religion in the sphere of government. so i absolutely agree that with the respect in treating others that you would want to be treated as very important in america and it is in short supply. one of the places we have seen it is on the freedom to marry and instead they have pulled back and said let them share in love and the love and stability and protection and we now have 37 states where gay people can marry and people have been doing
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so and not one of these places have they been using up the marriage licenses in denying the people anything. the people have been able to improve their lives, strengthen their families, kids have walked taller knowing that their parents are respected. no one has been harmed and nothing has been taken away. mr. brown likes to bring up issues that are not related to the western because of his larger agenda of opposing any kind of action against discrimination for gay people and mr. brown believes that businesses who go into the marketplace should have a special license to discriminate. if anyone says the word religion they are allowed to turn away people that they don't like. and that is not the point. we have allowed religious liberty and civil rights and what the law of the civil rights of 1964 says is when you go into business you serve the public. you don't turn people away based on race or religion was a smart war sexual orientation.
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>> it is hard to know where to begin with the faucets that are being put forth. it is about respect and it is about love and it is about civil rights to stand up for the core truth. the government recognizes something that is prior to that. marriage and family are a progressive institution and a further number of ends and they teach children the reality that mothers and fathers are both important and they are not interchangeable. and the claim that i somehow personally that i support this discrimination amongst individuals is patently false. it is not discrimination for a business owner to say that i won't be coerced to use my talent as a photographer to take part in a ceremony with which i can never agree. the fundamental reality is that
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rather from reason or faith or both together ideally the majority of americans to understand that marriage is a union of a man and a woman and they should not be punished but were coerced by their government to go against that. and because more recently illinois because they are catholic and will not place children with these couples, and then using same-sex marriage as a bludgeon to say that you cannot put those children anywhere at all if you don't play somewhat same-sex couples, that is not about civil rights, that is about using the law to punish an oppressed and marginalized those that disagree with this new idea of marriage. >> it is also not true. if the ground repeats the same stuff. >> but it is at the core. >> no, it's not, because in court we look at it under the oath of telling the truth and
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with cross examination. >> i encourage everyone to look at what you are referring to. >> please do. look at boston catholic charities. >> exactly. what happened is that they were told that they cannot have government funding. and that is the law of this country. and we don't have to take taxpayer money given to people that don't want to play by the rules that everyone else agreed to and by the way the board of catholic charities -- [talking over each other] >> it was because of antidiscrimination laws. not because of government funding. >> there's another point, if anything is at stake it was antidiscrimination laws and that has nothing to do with that. >> we are subsumed under the same-sex marriage laws. evangelical family services other groups placing them for adoption. immediately after because of
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this redefinition of marriage they are told they can no longer do that. and ask yourself the question, why. >> andrew is from florida. you are on now with our guest. >> hello guys. i want to you that i really appreciate you and the work that you are doing for us. and i know it's hard sometimes when people like to get on here and say hurtful things. and i just wanted to tell you that and i wanted to say that i appreciate what you are doing. i came out to my family this
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year this past year and it was very, very difficult for me because my mother and father are very religious people. i felt like i was letting them down when i called them and they could not have been more accepting of me and i just wanted, i really wanted to tell you that what you are doing right now, even though there are a lot of people that say hurtful things i just want to let you know that those people don't make up the majority people come in the majority of people when people like me to get married into it lawfully and i wanted to let you know that even people
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like sam brownback can rollback legislation that protects gay people like me and greg abbott can cut a cake and celebrate this ban they don't make up the majority of people. and i am very hopeful that after a lot of depression and hardship that i have gone through, i hope that in a few weeks that the supreme court will rule in favor of my right to marry. and all i have ever wanted is just to have the same rights as people and be treated as a normal human being and i am very grateful for people like you.
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people like you are the reasons why people like me have a voice in america and i couldn't sit by and just not let people come on here and say that me getting married is a perversion and all of these horrible things. >> okay, we appreciate you telling us a story. >> well, thank you very much, and encourage that you have showed them coming out to your parents, from what you say found encourage in them to open their hearts and to push back on some of those things that they have been taught and to be able to the love and see you and to see it is the right thing to do and that is the journey that america has been on and the journey that the majority of americans have taken there are those that cling to division and cleaning to hurt, they refuse to see what
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is in front of them, but the great thing is that with enough people speaking out other people do feel that and i feel grateful for the opportunity to do what the court said that we need to do, to let people understand who we are and to let them take about what would it be like to be told that you can never dream of finding the person that you want to build a life with. what would it feel like to have a lot tell you that your love is unworthy and everything you do does not count. and then to go forward and try to undo civil rights laws and to be able to say that you should be shut out of businesses, turned away, that is not the america that we want or have and it's because enough people like yourself in difficult circumstances that you have encourage to believe in yourself into believing others, that they also will rise and that is why
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we are seeing this progress. because we have told the story is, we are helping people understand who people really are. >> i think that anyone going through this has had a difficult time, we need to take care of and love everyone that has had a difficult time like that. >> what you do in a time like that? >> i have left the reality that religious liberty is important and that the civil rights are not being a bridge in a country that says that there is something unique and special about mothers and fathers, it's not being undermined and marriage is something unique and special and it's not going to solve the problems of those that actually do wish to discriminate by redefining marriage. in the call leader the idea that if only i'm allowed to get
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married. gays and lesbians even before this had to write to live as they choose but they don't have the right to redefine marriage. and i think that what other groups are doing are asking that if the supreme court comes down and create a constitutional right to redefine marriage, they are presenting this as somehow solving all these other problems and no, it will create problems or problems with what we are seeing on the attack of people's fundamental rights when you bring up this attempt to equate discrimination with those not wanting to take part in a same-sex union ceremony. do you honestly believe that by doing that you are furthering them thing that -- punishing a pizza parlor down the street because it's not going to cater a same-sex wedding, punishing a 70-year-old because she doesn't want to use her talents to create a floral arrangement for a same-sex union ceremony when
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there are plenty of folks are willing to do that. this is not about discrimination against individuals but a core question that our founders saw as critical and it remains critical and that is are we truly a country where people can disagree and where they can truly be diversity or are we a country in which someone who believes what i believe or believes what the majority of churches and other countries believe we are going to be told that it needed that it's prejudiced, that it's people clinging to an outdated view of thinking. is that truly the country that we are the understanding of marriage and cultures and societies that we have had for thousands of years that it's now going to be told by the supreme court that it's motivated by hatred? >> the only person that uses the words hatred and bigotry are those when they come welling out of mr. broun.
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i have never used any of those words. >> you use the word prejudice. >> i didn't say say you, but what i did say was that mr. broun mr. brown gets one thing fundamentally wrong here among many and that is that he keeps talking about redefine marriage. gay people are not trying to redefine marriage and the courts are not redefining marriage, marriage is not defined by who has denied it. when gay people share in marriage a dozen redefine marriage, it doesn't change marriage, mr. brown is still married to his wife. i am still very to my husband. we shared marriage and we share it because we found the person that we loved and we found someone who will put up with us and we have built a life together. that commitment that we made to each other has been respect it under the law for both of us. it did not take his marriage away. it did not change his commitment
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ended did not redefine it it meant that more people can share shared and that is what the american people are seeing. mr. brown loves to use that phrase. but it has nothing to do with that. >> we have two different views of marriage, my view is based upon the fundamental reality the biological reality of male and female, that mothers and fathers are unique and special, you disagree with that. the begging the question and saying well, the folks on this side don't understand that it's not redefining marriage, that is exactly what it is. >> that is the second thing that he has long which is that he keeps suggesting that when gay people can marry, that it does something to displace mothers and fathers and men and women. i have a mother and other and we are here to celebrate their 60th wedding anniversary. we are going to gather together with our siblings and respective spouses and friends and we are
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going to celebrate her parents wedding. my being married did not undo my parents wedding or displace my mother, it didn't knock over my father. we are still family. gay people have families and they form families and with a lot to do in a free country is respect the freedom and the family that each of us pursues in this precious time on this planet and if we disagree, it's okay to disagree, the law should not be taking sides. >> please go ahead on our north carolina line. >> good morning i would like to bring out one thing about the constitution and there is such a thing as freedom of religion or in which if you look at it this way, which is the correct way have a right as a priest or a pastor to refuse to marry a gay couple because of my religious beliefs. this country come this is the way that it is. there is no such thing as gay marriage and we have been through this and i believe let
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it be california, they say we believe in god and we will marry normal people and that is the way it should be. but you cannot force the state to change their beliefs in god. you cannot force that upon him. the other thing with the supreme court that i would like to bring up which is very good, the supreme court everyone swears on the holy bible, therefore the supreme court recognizes the bible in one god there is no gay marriage in the bible. therefore by the court forcing themselves forcing people and religion to change this they are a bunch of hypocrites because they make people swear on the bible and they live by that saying that there is one god and one law and so how can they enforce this on a state that does not believe in gay marriage. and that is my question and i will leave it for you guys to
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figure out. >> i agree with that color on to a certain degree, he is right, the government has no authority and should never be telling a clergyperson if that is what he is who he or she must marry. every church in temple gets to decide who they will married, they get to decide what they will teach about that, whether they want to teach that someone else's wrong or whatever, they have every right to do that. there is no way in which a gay couple on what the law can go down to mr. brown's church and demand to be married anymore than a jewish couple can go down to mr. brown's church and demand to be married, any more than a catholic couple can go to their own priest and say that we were divorced and now we want to get married. and that is up to the people and the houses of worship and the clergy. government can never dictate what they need to do but
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religion, and there are many and people disagree, religion should not be dictating to the government who gets a civil marriage license and that is how we protect the freedom of religion that the caller is talking about and i would be the first one out there to defend if there ever were a lawsuit or sing a minister as he claims to be to perform a wedding he doesn't want to do. one florida ended the exclusion they didn't say to anyone that you have to issue this license, you have to celebrate the wedding. what they said is that the government in issuing licenses will make them available without discrimination and those clergy who do want to bless those unions. there are many of those that will be able to do so in the exercise of their freedom of religion. >> i'm glad to hear that they still believe and i'm honest about this that one of the core principles of the first amendment pertains to a priest that should never be forced to
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marry people of the same facts. and so you're only giving that an acting is that this is what it is. we have a long history of protecting people's consciences. we have gone so far as to say that mennonites and amish do not have to serve in the armed forces, we have gone so far as to say that they don't -- that certain religions don't have to go to public schools, we have done all sorts of things to respect as any different consciences and freedom of expression but would not be america if we had police coming into a church and saying you better marry this couple are you're going to be arrested, that is absurd. but what religious liberty is is that it won't be punished by being part of its refusal to recognize same-sex marriage.
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so the catholic church refusing to place children with same-sex couples. one increasingly calls that federal contracts could never go to with churches or individuals that believe and act out the church that marriage is between a man and a woman. the key difference is what is marriage and there's a lot of reasons to believe what i believe about marriage and faith is one of them. i believe that marriage is based upon the fundamental reality of male and female and husband-and-wife. because of that even if the state in the 37 states put this to the law same-sex marriages will never be and are never marriage. that means that those of us to believe this are put into positions where we are conscientious objectors are we have this day that we cannot do that. and that's not only a pastor or priest that says this, that is
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also the individual who could be coerced or punished because they don't users bills to take part in a same-sex union ceremony in that happening across the country. >> we have a caller from wisconsin, please go ahead and. >> hello my comments, actually i have two of them than i need to make, the first is that you can't have it both ways, you can't have it that you guys are always saying that we are risen that we are this and that and that we are not serious about our relationships. and because being married is not just about the whole part about getting married, it is about everything else that goes along with it in terms of being a responsible citizen. like being a responsible
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homeowner and paying your taxes, if the same thing. so you cannot have it both ways and this whole idea of marrying in that way that's just -- [inaudible] the other piece that i need to say is that when you talk about the marriage portion, you are talking about the marriage piece and you are talking about -- when you talk about you like there's so many -- their art divorce rates are so high that if you guys take up the issue maybe that is the issue you should take that. in terms of procreation, there are thousands and thousands of heterosexuals that he married and never have children. so maybe they should be getting married. and so there are a lot of these particular requirements that you are using that do not apply and
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society has changed. >> okay, collar. >> i have never claimed that this is procreation, procreation has an interest because of procreation, but there is also the issue that marriage brings together two different parts of humanity, male and female. and so that is why it it is. so as far as having your cake and eating it too it goes back to the key question of what is marriage and i have already talked about the rational reasons why marriage is between a man and woman and some of the consequences of redefining it. and the court has a different question and that is the u.s.
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constitution wires what has never been the case in this country, after they decide that the federal government dictates that marriage across the country is not based on the reality of male or female but two people. and again you say that society has changed and that no one is advocating for six or seven or eight people. and there should be -- [inaudible] if you make that argument back in 1971 almost no one was thinking of same-sex marriage. just because no one may be talking about it doesn't mean that it does not logically follow. the binary nature of marriage is gone, the trueness of marriage is based upon males and females,
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once you do it that it's all about love makes a family, a dull desire come it's not about the needs of children are you discriminating against me i don't see how the court stops that. >> men do not fall in love and then marry all women, african-americans don't fall in love to fall in love with just african-americans. people follow up with people. the basic freedoms that we have our individual freedoms and they are based upon the idea that each one of us pursues happiness and contributes. what is at stake is that gay people have the same desire to be able to love and commit to an take responsibility for this under the law the person that is precious to him or her, whether it's a man or woman and that is in each one of our hearts and our life journey.
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but you have to marry a latino or a man or a woman or a jew. these are choices that belong to each person and each of those aspects of identity are very important and they are part of what makes up the person we fall in love with. there's another set of voices that i believe will be very resonant which is the children being raised by gay parents today, there are hundreds of thousands if not millions being raised by their parents that they have an apparent that they know and those that love them and at what the exclusion for marriage does it harm those children by denying their families the integrity and respect the support that comes with marriage to the kids. for that reason the american academy of pediatrics, the american medical association psychological association, every leading mainstream scientific and public health and welfare
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associations have filed this urging them to do it the other courts have done, recognizing that the denial of marriage harms real kids and real families while held in no one else. >> this is melissa, please go ahead. >> hello, i have heard this mandate on about three different occasions, i really wish that the homosexual community would stop that. you know if you have a man and a woman walking down the street, how do you know which one is gay? you don't. and so to sit here and say that the movement is the same as the civil rights movement, it is not the same you are [inaudible]
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because of your actions. so to sit here and try to say that the african-american community is now supporting or somehow should sympathize with the homosexual community because of discrimination is ridiculous to me. you don't know that someone is gay until they confirm that. second of all you are redefining marriage. marriages between a man and a wife. and so this goes before the supreme court and that definition is going to have to be changed. because it's not the same between a man and female, and so
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to say that you are not trying to redefine marriage i think it's absolutely ridiculous and you need to go ahead and re-examine that again. >> for many decades the women were not allowed to vote. we fought hard in this country about that and women won the vote, when they were able to win the vote, it did not redefine what voting is coming it didn't change the word voting or mean a new kind of voting. it meant that more people were able to vote as they always should have been. so this is not redefining this. in most places gay people can now share and the freedom to marry and the freedoms that they should always be able to sharon they are doing what more people are doing with what marriage is.
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and then one president obama and his second inaugural address and then again in this year's state of the union, when they talked about the freedom of right to marry during the civil rights journey, the president use the words and he would write about this, he said what civil rights are are the ability of each one of us to participate fully and equally without being excluded based on a characteristic such as race or religion or sex. are all of these the same? no they are not. the way in which african-americans or most of them have experienced discrimination may be different from the way in which most italian-americans experience discrimination or women discriminate experienced discrimination. they do not have to be the same two potatoes and injustice and when you are denied nothing
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important because of who you are, whether it's a characteristic that people see or that they see when you are true to the love that you have, it triggers discrimination and if it does that, the question is should it be allowed, should the government engage in that discrimination. and one a gay person seeks to marry someone he or she loves, there is a moment of potential discrimination. >> i am so glad that so many of the callers are catching the false analogies that are being made. of course it should have nothing to do with our gender, but of course marriage does. so you take all of these other rights. and they say that we must have the right to redefine marriage marriage is based upon this distinction and not all distinctions in the world are
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bad. some of them motherhood fatherhood, being a husband, being a wife, those are good. the reason that a state has an interest at all in marriage and the overwhelming majority of countries throughout the world come of the 200 so members of the united nations only 19 have moved in the direction of same-sex marriage and only one has been forced by a court to do that. so the majority of countries throughout the world understand this truth and have rejected time and again many different levels of law that have said that there is no fundamental right to read my marriage. because again the marriage is based upon the reality of male and female voting and the analogy does not stand. they are not the same. >> the problem with this point is that it's easy to say now when they have lost the battle to deny women the freedom to vote or when they have lost the
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battle to prevent african-americans from participating in interracial marriage. >> somehow we supported bands on interracial marriage? >> that is a slur on the good people of this country. the 50 million people who voted to protect marriage or somehow the equivalent of that racism? >> no, i did not say that. we all know that the majority of people had to work to change it and they are forced to adjust that change even after it happens. there are people who did not want african-americans and white people to share. >> again come you're making my point for me. >> my point is that it's easy when those battles are done to save about one was fine even
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though they make the same arguments that were made at the time. and it's easy to say that but that one is different but the reality is the story of america is to go to court and hold of the constitution and we see what the command is and we are better off on our country moves to embrace civil rights. >> brian brown of the national organization for marriage. founder and president of freedom to marry gentlemen, thank you so much. >> thank you. >> sean duffy of the financial services committee will discuss the upcoming debate over the house and senate budget deal. then we have john delaney of maryland talking about american hostages captured by terrorists and the need for u.s. officials to oversee the rescue process.
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after that, judy collins and john madigan at the american foundation for suicide prevention will join a for a look at them efforts to prevent suicides. those conversations and your calls and tweets and e-mails. this show is live at 7:00 a.m. eastern, 4:00 o'clock pacific, on c-span2. >> remarkable partnerships, iconic women. their stories and first ladies, the book. >> she did say that the portrait of washington, which was one of the things that endeared her to the entire nation. >> what she was wearing who she was seeing, that was going to help. >> she had an enormous influence because she would move the mountain to make sure that her
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husband was protected. >> looking inside the personal life of every first lady of based on original interviews from the first ladies series learn about their lives and ambitions and families and unique partnerships with presidential spouses. filled with lively stories of fascinating women who survive the scrutiny of the white house sometimes at a great personal cost often changing history. it is in the illuminating and inspiring read available for your favorite bookstore or online bookseller. >> today the attorneys argued for and against same-sex marriage laws, the high court considered to legal questions and the first whether states are constitutionally rip wired to
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licensing same-sex marriage and the second is whether dates must recognize other states where they are legal, the supreme court oral arguments are two hours and 20 minutes. >> we are hearing case 145566 and the consolidated cases. please go ahead. >> those couples just like those of heterosexual couples, if a legal commitment and responsibility and protection that is marriage is off-limits to the people, there is a class those contravene the basic
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commitment and the abiding purpose is to preclude relegating classes of persons. >> [inaudible] >> we do have this except the laws must respect the constitutional rights of persons and here we have a class of people that were denied the equal rights to be able to join in this very extensive government institution for families. >> the argument on the other side is that they are to redefine the institution and every destination that i looked up prior to a dozen years ago but i'm marriage as a unity between a man and a woman and
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husband-and-wife and obviously if you succeed that core definition will no longer be operable. >> what we are talking about here is a class of people that have been excluded from being able to participate in this. >> my question is do you are not seeking to join the institution but change what the institution it. and the fundamental core is the opposite sex relationship and you want want to introduce into it a same-sex relationship. >> if you're talking about a fundamental right to marry and a quarter female institution, male and female institution know that it provides enduring guarantees and this role is something that has change in our society.
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in a sense not appreciating the liberty at stake in the same things here, it's whether or not they share that same liberty. >> one of the problems is when you think about these cases you think about a word that keeps coming back to me in this case which is millennia. and so percival there has not been time for the federal system to engage in this debate. but on a larger scale it was the same time between brown and others about 10 years. and so i don't even know how to
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count the decimals when we talk about millennia. this definition has been with us >> we will think about the debates [inaudible] something has been contested, in the last century it was a place of public employment and federal service and these are things that have been contested and you can say 10 years of marriage in massachusetts, but also there was a case for minnesota to reach this court and that was over 20 years ago but they seem to indicate that it would rule in favor of marriage and that they have been debating and discussing this and the bottom line is that gay and lesbian families throughout this whole country --
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>> you argue in your brief that the primary purpose of the michigan law marriage between a man and woman, is to demean gay people. is that correct? >> the michigan statute certainly went out of their way to say that gay people were in some sense antithetical to the good of society. >> did you see in your brief that the primary purpose was to demean gay people we met. >> i think that it has that effect. >> is that true just in michigan or of every other state that has a similar definition of marriage act welcome if we are talking about the state that has constitutional amendments, there are many states that are similar, there are some that have none of the above. but i think the commonality among all of those statutes is
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that they encompass moral judgment and stereotypes about gay people. that they were not worthy and the moral judgments -- >> as far as i'm aware until the end of the 20th century, there was never a culture that recognized marriage to those of the same sex. can we infer that those nations and cultures all thought that there was some rational and practical purpose or defining marriage in that way? or is that your argument that they were all operating based solely on irrational circuits and prejudices? >> if you think about the example of this, it took over 100 years for the court to recognize that this contravened
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with the constitution. but then in short order they went from a rational basis approach to scrutiny and we have the foundation [inaudible] >> we inferred that we all thought that there was a rational reason for this and a practical reason for this. >> i don't know what other societies assume. but i do believe that it takes time to see the common humanity of people who have once been ignored or excluded. >> we would not be asking for this relief if the law of marriage was what it was and it was impossible. same-sex unions would not have opted into this pattern of
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marriage with a relationship in this way having obligation to follow them [inaudible] and so [inaudible] this is a part of what it was. >> that is correct, and the first century we had this system were a woman's identity was absorbed in that of her husband and many women had different prescribed roles and again because of the quality and changing social circumstances, all of those gender differences have been a laminated and that is something in which committed couples that quite well.
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>> this is not a universal aspect of marriage around the world. if you look at the basic definition it is between a man and a woman. it does not always stay between a man and woman in which the situation is a subordinate kurds i'm not sure that this is trickier situation. >> the thing about marriage is that it is controlled and regulated by the state and the states create the definition of civil marriage and certainly are accountable for those definitions and any exclusions which follow. we all know that there are exclusions and cases like this where in each case the people behind on child support payments with a mixed-race couple who wanted to be able to join this institution, even though some of those exclusions were right traditional. >> not all societies and
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mixed-race marriages and honor in all states in this country. but i don't know of any. do you know of any society in 2001 that permitted same-sex marriage? >> as a legal matter? >> no, i am not. >> not a single other society. are you telling me that they are all, i don't know -- >> what i'm saying is taking that tradition as it is the court still needs a reason to maintain that tradition wanted has the effect. >> it is not whether there should be same-sex marriage. you are asking us to decide it when no other society until 2001
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-- how many other state or by referendum? i think that it's 11. >> once again that is not the people deciding it is judges deciding its. >> in terms of this will blini him, what is the status over the view of gay people in most of those countries? have they been subject to the kinds of discrimination [inaudible] where they welcome into the worldwide community wasn't free of discrimination remap. >> if you are speaking of that not everyone has the kind of system with a explicit guarantee
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for all persons and that immediately sets the united states off from so many other countries 17 or 18 countries that actually do authorize this. >> there have been cultures that do not focus on this, that is not a universal opinion. ancient greece as an example and it was within certain bounds, but do they have this in ancient greece? >> they didn't prove that they have anything comparable. and they have these relations. >> people like plato wrote in favor of that, did he not been met. >> he wrote approvingly of same-sex relationships. >> okay, they are limiting
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marriage to couples of the opposite sex not based on prejudiced. >> it's different because it controlled the government, but from an anthropological standpoint the justices very careful to talk about societies and cultures. [inaudible] and they made it themselves. >> we recognize that, what our nation did for this union in 1787, it affirmed the 14th amendment in 1868 and that is when we made -- the nation collectively made a commitment to equality.
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>> maybe you are doing that but i would like to hear the precise answer to the question that you have been asked of all times. and it has been the law everywhere for thousands of years. and among people who are not discriminating even against gay people and suddenly you want nine people outside of the ballot box or higher states that do not want to do it those to change change what you have heard and change what marriages to gay people. like in those states not wait and see and in fact doing so is not always harmful to marriage and that the question has been put in many ways in the briefs on our subject, you have received it in three or four different ways and i would like to know so that i can hear and understand it with just what your response is.
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>> i apologize if i haven't. in our them, the 14th amendment, these are principles that we were all governed by and they govern our lives and you look at examples like this. it was still something that was widespread in this nation for a long time and that changed in marriage and it was deeply unsettling to people. and every single state was a matter of common constitutional line that was incredibly pervasive. virginia resisted this 80% of the american public was with virginia on that and it was a question of the individual liberty is the person was doing something that was considered a profound change in its time.
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>> a group consisting of two men and two women apply for a marriage license, would there be any ground for denying them for the light? .. there are concerns about consent and disrupting family relationships when you talk about multiply persons. i want to go back to the other question if i may. >> i didn't understand your answer. >> i hope you will come back to mind if you want to go back to the earlier one. >> what if there is no reason two men and two women, it is not the sort of polygamous marriages that existed in other societies and still exist in some societies today. let's say they are all consenting adults educated --
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they are all lawyers. what is the ground you would like to hand down? what is the logic of denying them the same right? >> number one, i would assume the states would rush in when you talk about multiply people joining in that is not the same thing we have had in marriage which is the mutual support and consent of two people. >> i don't know what kind of distinguishment that is. a marriage between two people of the same sex is not something we have had before. recognizing that is a substantial break. maybe a good one. but this is -- why is that a greater break? >> the question is assuming this is the fundamental right, the question is one of justification and i would assume states say there is a concern about consent. if there is a divorce from the second wife does the fourth wife have access to the child of the second wife?
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there is discussions about who makes the medical decisions and there would be family issues that don't apply when we talk about two consenting adults who want to make that mutual commitment for as long as they shall be. and dernturning to wait and see by itself it has never been considered a free standing justification under the 14th amendment. we are talking about the petitioners being denied marriage and a second-class status. >> part of wait and see is to ascertain whether the science studies are accurate. but that seems to me we should not consult at all the social
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science on this. you say we don't need to wait for changes. so it seems if we don't wait it is only fair to seeay we will not consult social science. >> i think the effects of waiting makes same-sex couples second class citizens and setting that aside there have been trials, in the michigan case and in arkansas and florida, about adoption bans and they have been aired repeatedly and individuals heard about the social science agreement that there is nothing about the sexual orientation of the parent that will affect the child's outcome. this is not research just about gay people but the affects of gender. >> you are right the consequences waiting are not neutral. on the other hand one of the
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things that is extraordinary about this issue is how quickly has been the acceptance of your position across broad elements of society. the situation in maine is characteristic. in 2009 they banned gay marriage, in 2012 they enacted it as law. that is a quick change and it has been a characteristic of this debate. if you prevail there is no more debut. closing the debut closes minds. it has consequences about how this new institution is accepted. people feel differently if they have a chance to vote on it then if it is imposed on them by the court. >> there is a few points and i hope i get them all. one thing that separates maine from the states we are talking
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about is there wasn't a constitutional amendment in place that shuts down the process and it is difficult to amend the constitution. an opinion pole is not a measure of what a legislature is going to do -- poll -- to approve an amendment to go to the voters and serious structural problems didn't apply. when i think about acceptance i think about the nation as a whole. there are places with no protection for gay and lesbian people in parenting. the michigan petitioners have placed and approved of the adoptions. >> i am concerned about the wisdom of this court imposing through the constitution a requirement of action which
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impalatable to many because of religious regions. they are not likely to change their view on what marriage consist of. and were the states to adopt it by law, they could make exceptions to what is required for same-sex marriage and who has to honor it and so forth. but once it is made a matter of constitutional law, those exceptions, for example, it is conceivable that a minister who is authorized by the state to conduct marriage, can decline to marry marry if indeed this court holds they have a constitutional right to marry? is that conceivable that would be allowed? >> your honor, of course the
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constitution will continue to apply in right to the state and no clergy is forced to marry anyone. >> but to this day we never held there is a constitutional right for these two people to marry and to the extent the minter is conducting a civil marriage he is an instrument of the state. i don't see how you can allow that minister to say i will only marry a man and a woman, not two men, which means you could have ministers who conduct real marriages that are civilally enforceable at the national cathedral but not at st. matthews downtown because that minister refuses to marry two men and therefore cannot be given the state power to make a real state marriage. i don't see any answer to that. i really don't.
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>> counciler there is anti discrimination laws in states right? >> yes. >> involving gay people correct? >> yes. >> and in any of those states have ministers been forced to gay same-sex marriage? >> of course not. >> they are laws. not constitutional requirements. that is the whole point of my question. if you let the states do it you can make an exception. the state can say yes two men can marry but ministers who do not believe in same-sex marriage will still be authorized to conduct marriages on behalf of the state. you cannot do that once it is a constitutional prescription. >> for me it is firm that under the first amendment that a clergy person cannot be forced
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to officiate a marriage. >> he is just not given the state's power unless he agrees to use that power in accordance with the constitution. i don't know. seems to me you have to make that exception. you cannot appoint people who will then go ahead and violate the constitution. >> i think if we are talk about a government individual a clerk or judge who is empowered to authorize marriage that is a different matter and they will follow through unless the state makes exception. in connecticut, the court permitted marriage but passed a law to deal with these issues >> because it is a state law. that is the whole point. if it is a state law you can make exceptions but if it is a constitutional matter i don't so how you can. that will not be the case if we
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hold as a constitutional matter that the state must marry two men. >> your honor, maybe you are not understanding justice scalia's question. but there are many rabbis that will not conduct marriages between jews and non-jews not withstanding we have a prohibition against religious discrimination and the rabbis have the power and privilege of the state even with that rule. many, many rabbis will not do that. >> that is precisely -- >> congress shall make no law respecting the freedom of religion. >> yes, and i would say briefly -- >> you agree that ministers will not have to conduct same-sex marriage? >> if they do not want to that is correct and i believe that is firm in the first amendment.
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and i will say before sitting down in terms of the question who decides it is not about the court verses the state. it is about the individual making the choice to marry and whom to marry not the government. >> thank you, council. >> would you tlieklike to take a moment? >> i will. thank you, chief justice. >> actually the court is ready. >> we are ready.
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refresher here actually. >> mr. chief justice, may appease the court? the right to marry is part of dignity and excluding gay and lesbian means to take away the dignity. the the argument we have been discussing is whether this discrimination should persist is something that should be left to the political process or decided boy the court. i would like to make three points about that if i could. i think it is important that if the court leaves this up to the what the court is saying that the second class citizenship gay
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and lesbian are receiving is consistent with equal protection of the law. that is not a wait and see. that is a validation. and to the extent the thought is this could be left to the political process because this issue will take care of itself over time because attitudes are changing i submit to the court no one can see the future but it seems more like to me the outcome we end up with approxi approximate the nation. you may have many states perhaps most states where gay couples can live with equal dignity, but there is going to be a minority of states where gay couples are relegated to second-class status and i don't know why we would want to repeat back to history. and third i want to expand on what was said and i think you
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recognized this, the decision to leave it to the political process is going to impose enormous cost the court thought were stature in windsor. thousands of thousands ouch people are going to live out their lives and go to death without the state every recognizing the equal dignity of their relationship. >> you could have said the same thing ten years ago with lawrence. haven't we learned a lot since lawrence in the last ten years? >> yes, and your honor i think that is a critical point that goes to the question your honor was asking earlier. i think lawrence was an important catalyst that brought us to where we were. it provided an assurance gay and lesbians can live open in society as free people and start families and raise families and participate in their community without fear. and two things formed from that i think. one is that brought us to the point where we understand now in
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a way that we did not fully understand in lawrence that gay and lesbian people and couples are full and equal members of the community. and what we once thought of as necessary and proper reasons for marginalizing gay people we understand do not justify that kind of pressure. >> the difference is lawrence the whole argument is the state can't intrude on that personal relationship. this it seems is different in that what the argument is the state must sanctions and approve the relationship. they are two different questions. >> it is different. i agree. that leads to the second thing lawrence capitalized for the society and that is gay and lesbian people to take claim of the 14th amendment. this is about equal
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participation. participation on equal terms in a state confer status state institution, that is different than lawrence. but lawrence allowed us to see the justification for excluding gay and lesbian couples from par participation in this institution. and the state is talking about a fundamental change in the nature of marriage and i think the answer of this question is the case can be decided by thinking about marriage in the way the states define marriage now. and i think it is important to think about it this way. heterosexual couples can enter marriage and have families through biological procreation, assisted reproduction families through adoptions or not have families at all.
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>> what do you think are the essential elements of marriage as they exist today? >> i think they are the ones that are obligations of mutual support and responsibility and the benefits surrounding marriage that state law provides to insure there is an enduring bond that continues over time unless hopefully till death do us part and the end of life. and certainly child rearing is bound up in that. but i would suggest, justice alito, is the way childbearing is bound in that is different than what my friend on the other side. >> let's think about two groups of two people. the first is a same-sex couple who have been together 25 years and they get married as a result of the change in state law or a result of a court decision. so the second two people are unmarried, siblings lived together 25 years their finance relationship is the same as the
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same-sex couple, they share household expenses and chores in the same way and care for each other in the same way; is there any reason the law should treat the two groups differentry? >> the law allows hundred percent of heterosexual people enter marriage consistent with their sexual orientation and in these states it prohibits hundred percent of gay and lesbian people from entering a relationship -- >> as far as the benefits marriage gives couple what is the reason for treating the two differently? >> marriage is more fundamental than that. it is an induring bond between two people. and childbearing it is
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important. part of the wait and see caution argument that respondents are saying they want to exercise an attitude of caution because of concern about the welfare of children raised in same-sex marriage households but there is a problem with that rational. right now today, hundreds of thousands of children are being raised in same-sex households and that number is only growing. all of the evidence is showing you that is not the problem and the state's argument is ironic in that it will deny marriage -- >> all of the evidence shows -- >> i think all of the leading organizations that filled briefs have said there is an agreement on that. >> and i think some of the briefs contradicted that. >> i think the fundamental point and the point i am trying to drive at is you have hundreds of
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thousands of children raised in same-sex households now and what the respondents caution argument leads you to is the conclusion those hundreds of thousands of children don't get the stabalizing structure and the benefits of marriage. >> i would like to follow-up with the line of questions that justice scalia started. we have a concession from your friend that clergy is not required to perform same-sex marriage. but they are going to be hard questions. would a religious school with married housing be required to afford such housing to same-sex couples? >> i would like to make three points about that. and i will go right to the question you ask. the first one is of course this court's ruling addresses what the states must do under the 14th amendment and the second point is when you get to a question like the one your honor
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asked that is going to depend on how states work out the balance between their civil rights law, whether they decide there is going to be civil right 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 -- different states could strike difference balances. >> what about it being a federal question if we make it a matter of constitutional law. but the question of how states use enforcement power is up to the states >> you have enforcement power, too. >> and that is certainly true but there is no federal law generally banning discrimination based on sexual orientation. and the third point i would make is these issues are going to arise in states where there is
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no same-sex marriage and they have risen many times. there is commitment ceremonies like in new mexico that didn't arrive from a marriage. it arose from a commitment ceremony. this commitment ceremonies are going to need florist and such. >> the court held a college was not entitled to tax exempt status if they opposed interracial marriage or dating would the same apply to a university or college if they oppose same-sex marriage? >> i don't think i can answer without knowing the specifics. it is going to be an issue. i don't deny that justice scalia. >> why don't you answer my question -- i see your time going out. i am interested in your comments on the case that says we will
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have to define marriage and a lot of questions we asked your colleague in the earlier part of the argument had that in mind. >> justice kennedy, forgive me for answer this way. there is a connection between liberty and equality but we only have an equal protection and we have not made the argument under that and i am not sure it is appropriate to comment without briefing. >> why didn't you make the fundamental argument? >> we think reasons like the ones in the chief justice question this issue sounds equal protection as we understand it because the question is equal participation in a state conferred status and institution and that is why we think of it in equal protection terms. if i could with the time i have left i would like to suggest this. what the respondents are saying
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to the court is with respect to marriage they are not ready. yes, gay and lesbian couples can live openly in society, yes they can raise children yes they can participate fullly -- fully as members of the community but marriage has to be worked out later. but the petitioners, these gay and lesbian couples -- >> or not. they are saying leave it to the people. it will be worked out later or not >> what these gay and lesbian couples are doing is playing claim to the promise of the 14th amendment now. it is radically the duty of this court, as it was in lawrence to decide what the 14th amendment requires. i would suggest that in a world in which gay and lesbian couples live openly as our neighbors,
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raise our children side by side with the rest of us theytribute theytribute -- they contribute as members of the community and it is untenable they can be denied the right of equal protection in the institution of marriage or be required to wait until the majority decide they are ready to treat gay and lesbian people as equals. gay and lesbian people are equal. they deserve the equal protection of the law and they deserve it now. thank you. >> thank you general. >> mr. burse? >> thank you mr. chief justice. respondents are not saying we are ready. this case isn't about how to define marriage.
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it is about who gets to decide that question. the people through the democratic process or the federal courts. and we are asking you to affirm individual's liberty interest in deciding the meaning of marriage. this case turns on the question -- >> no body is taking that away from anybody. every single individual in this society choses if they can their sexual orientation or who to marry or not marry. i suspect even with us giving gays the right to marry there are some gay people who will chose not to just like heterosexual couples chose not to sometimes. >> we are talking about the fundamental liberty interest in deciding what marriage means. >> setting that aside, i heard the answer to the question being given in respect to tradition,
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the 2,000 years and the democratic ballot box was quite simple. what i heard was one marriage is fundamental. i mean certainly, that is 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 of taking opportunity in that fundamental ability. and that is same-sex marriage. and we ask why? the answer we get is people have always done it. you could have answered that one the same way when you talk about racial segregation.
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or two because certain religious groups believe it is a sin. and i believe they sincerely think that. but is a purely religious reason on the part of some people sufficient? when i look for reasons three four and five i don't find them. what are they? therefore i am asking -- this is a long question but gives you an opening to say what all of those reasons are. >> those are not our answers. our answer number one is the marriage institution did not develop to deny dignity or give second-class status to anyone. it is developed to serve purposes that arrive from biology. imagine a world without marriage. men and women would get together and create children but they would not be attached to each other in social institutions.
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on the other side, marriage is all about love and commitment and as a society we can agree that is important but the state has no interest in that. if we try to solve the social problem of no marriage we would not solve it by say let's have people identify who they are committed to and recognize those relationships. >> the principle argument you make in your brief is same-sex marriage doesn't advance the state interest in regulating procreation. let's assume that is so for the moment. obviously same-sex partners can procreate themselves. is there in addition to that, are you saying, that recognizing same-sex marriage will impede upon that state interest or harm that state interest in regulating procreation through marriage? >> we are saying that your hone. obviously under a rational bases that is not a question you need
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to decide. but leaving that aside -- >> how could that because all of the benefits marriage affords the benefits. they would have the same incentive to marry and the benefits coming with marriage they do now. >> justice kagan and justice ginsburg it has to do with the society understanding of what marriage means. this is a bigger idea of a couple and what marriage means to them or their children. when you change the definition of marriage to delink the idea we are bonding children with their biological mom and dad there is consequences >> we don't do that. that is the problem. marriage
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it will harm marriage between a man and woman if you allow men or two women to marry. i thought the burden was to show the state's reason for this institution is a reason that has nothing to do it is not applicable to same-sex couples. >> justice scalia you are right. i want to answer your question. >> i don't think that is right. i think before something that is as fundamental to a society as marriage is before an exclusion can be made in that institution the state needs a reason for that exclusion. i am giving you a real opportunity to tell you what that reason is what is the reason for the exclusion instead of non-inclusion. >> it is definition to solve a
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problem but the reason there is harm if you change the definition is because in people's mind if marriage and creating children don't have anything to do with each other what do you expect? you expect more children outside of marriage. i want to give you a hypothetical -- >> you think if we allow same-sex marriage one is announcing to the world that marriage and children have nothing to do with each other? >> not in the abstract. >> or in the concrete. >> if we are talking about something that is going to change the meaning of the institution over generations and you have things where we tweak what marriage means and there is consequences over the long term. think about two couples that have been married for five years and each have a three year old child. one grows up believing marriage is about keeping that couple bound to that child forever. the other couple believes that
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that marriage is more about their emotional commitment to each other and if that commitment fades they may not stay together. a reasonable voter could believe there could be a different outcome if the marriages were influenced by the different belief systems. ideas matter >> that assumes that same-sex couples could not have another purpose and that is the whole point. same-sex couples say of course we understand the nobility and the sacredness of marriage. we know we cannot procreate but what about the other attributes we have to fulfill. but you are saying this harms conventional marriage. that was the argument you made in the brief as i understood it.
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>> the state of michigan values the dignity and worth of every human being no matter how they chose to live their life. our point is when you change the dictionary definition and apply it over generations the changes matter. >> that is true. but i mean the fact is that a very high percent of opposite sex people don't have children and everybody knows they can't and a very high percentage of those who get married of same-sex people do have children. where is this going? what are these two gay couples to do with it? >> we are concerned about all of the children. children of opposite sex couples and children of same-sex couples. there are 73 million children in this country.
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if this court puts a new definition in the constitution and reduces the rate that opposite sex couples stay bound to their children because of the under understanding -- >> what evidence is there of that? >> looking at the two couples i described, one believing that marriage is all about staying with their kinds and the other believing it is all about emotion and commitment could have different results. >> even under a rational bases standard, do we accept a feeling? i mean why and i think justice kagan put the argument clearly would something as fundamental as marriage why would that feeling, which doesn't make any logical sense control our decision making? >> it doesn't make any logical sense that if people think marriage is more about love and commitment than about staying
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bound to your children forever there might be different consequences? >> i think people who get into marriage think that. everybody has their own vision of what marriage is. but what state confers is certain obligations. and they are willing to accept those. whether or not that couples stay together. they are bound to that child. they have to support the child, they have to care for him or her, some people chose voluntarily, meaning they chose because they don't want to but that happens in same-sex and heterosexual couples >> it is a harm to a child of an opposite couple if they get divorced as oppose today stay together forever. we can all agree that we want kids staying bound to their
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biological mother and father. when i hear -- >> i think they should be bound to their parents because there is a lot of adoptive children and they are not thinking of biological markers >> that is a situation where the child doesn't have their biological mom or dad and that is a different state interest. >> suppose that there is a state with a very procreation centered view of marriage of the kind you are talking about, and so emotional commitment and support, all of these the state thinks are not the purpose of marriage and they want their marriage license to be addressed only to the things that serve this procreation purpose so they say we are not giving marriage licenses to anybody who doesn't want children. so when people come in and ask for a marriage license they ask a simple question; do you want
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children? if the answer is no the state says no marriage license for you. is that constitutional? >> that would go against the interest. >> the state says the best way to promote procreation centered view of marriage is to limit to marriage to people who want children. and that is what it does. would that be constitutional? >> justice kagan, even people who come into a marriage thinking they don't want children end up with children. >> answer the question. what is your answer to the question? >> >> would it be constitutional? >> i think it would be an innovation of privacy. >> 70-year-old couple comes in -- [laughing]
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>> you don't have to ask questions you know they are not having children. >> a 70-year-old man is capable of having children and you would like to keep that within the marriage. leaving that aside, what you are talking about justice ginsburg is a justification and saying overinclusiveness is not something you need to worry about. applying a heightened scrutiny many are married thinking they will not have children but end up with children. and that advances the state's interest. >> you are the one who said rational bases applies. and this is the state that is deciding it is so wants this procreation-centered view of marriage it is going to exclude who don't want children or people who can't have children and the question is would that be constitutional and it seems to me directly from your
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argument it would be constitutional. ... >> the definition of marriage suffers from that same flaw the truest definition families that have been discussed that might benefit from having state recognized marriage
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that have emotional love or commitment to each other. of those are the reasons -- >> marriage is to provide a lasting bond between people who love each other and make a commitment to take care of each other. do you see a way in which that logic can be limited to two people who want to have sexual relations? cannot extend to larger groups the one i mentioned earlier why it would not extend to unmarried siblings >> over inclusive and underinclusive. the state does not have an interest. if justice kagan and i have a close friendship the government does not regulate when that begins or ends. is not about love but finding children.
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>> place i can accept that kind of definition and.out many gay people want have children. i'm not certain how that works. the other thing that would be helpful to me is there is an argument being made not by government command i would like your response to it that marriage is about as basic a right as there is the constitution and amendment 14 does say you cannot deprive a person of liberty certainly basic liberty without due process of law and that the taking the people were so little distinguishes them from the people you give the liberty to at least in terms of a good reason and you cannot let them participate that
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that violates the 14th amendment. rational basis. it is not going to get into these questions about religion. rights versus gay-rights and so forth. we avoid that in this case. perhaps that is wise if not legally required, which it may be. i would like your response to that aspect of the other side's argument. >> with respect to the right of privacy you identified this court already answered that question in the majority opinion when he said the limitation -- what i said was that the right to
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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 the state offers that to almost everyone but excludes a group. i want that answer to the best of your ability. and this court said the limitation has always been thought to be monumental. so under that test command you could change -- >> i suppose i do not accept for argument sake your notion that the right of privacy and the right to be married of the same thing.
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now, we will deal with my hypothetical and that is they are different things. on on that assumption i would like to know what you think of the argument. >> windsor on that -- >> the problem is i do not accept your starting premise the right to marriage is i think, embedded in our constitution. it is a fundamental right. we have seen it in a number of cases. the issue is, you cannot now it down to say what is gay marriage? black and white marriage. fundamentally. the issue was starting for the proposition is the right to marry fundamental. and. and then, is it compelling for a state to exclude a
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group of people. for me that is a simple a question -- >> justice so the mayor, i am not arguing with you about how broadly or narrowly defined narrowly we should be defining. the long-established precedent designed to create a balance were federal courts are not interfering with the state democratic process. it does not matter how broadly unifying but fundamentally understood as a limitation. >> i am not sure it is necessary to get into sexual orientation to resolve the case. the difference is based upon their different sex. why isn't that a straightforward question of sexual discrimination? >> two reasons.
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always involved training classes of men and women differently. it's appropriate to draw lines based on sex if related to biology and indulgence for a minute that it is important. you will recall that is the case a lot of determined citizenship of children born to unmarried individuals overseas. the citizen mother that may automatically have citizenship but if it was the father the father had to prove paternity and make child support payments up until age 18 which is obvious sex discrimination. >> the core rationale for that as we know who the mother is. the father claiming to be the father for some benefit, but we cannot be sure.
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>> that was the justification for the proof of parenthood. i would like to quote from the opinion about the 2nd interest, child support. the court said the government had an important interest in ensuring an opportunity to have a meaningful parent-child relationship between the biological father and child and the law substantially advance that interest, and this is why. the policy which seeks to foster the opportunity to meaningful parent-child bond has a close and substantial bearing on the governmental interest in the actual formation of that pond, the exact same interest being advanced here when we talk about the definition of marriage. >> give the status of a parent. it was not difficult.
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here there is a total exclusion. the father was complaining he should not have to do anything other. you do. it's not much. >> but that is the gist of the court's opinion, the state had an interest in the biological bond ensuring that it is sustained, the exact same interest the states have when they try to bind children to the biological moms and dads which means over the long haul it has consequences. the out of wedlock has gone from 10 percent to 40 percent. everyone would agree that is not a good result for children. to the extent you are changing that -- >> the recent gay marriages
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massachusetts, the rates have remained constant. >> but as federal justices have noted it's a very short timeframe. >> you are the one that brought the statistic up. [laughter] >> right. >> and under your view it would be difficult for same-sex couples to adopt some of these children. i think the argument cuts against you. the basic.where you have some premise that only opposite sex couples can have a bonding with the child. interesting how it is just a wrong premise. >> the premise is not we want to encourage children to be bonded to the biological mother and father we do not deny or disagree. we hope that is the case.
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>> this is what i think is difficult for some people with your argument. it is hard to see how permitting same-sex marriage discourages people from being bonded with their biological children. if you could explain that to me. >> you are changing the meaning of marriage. adults can think rightly that this relationship is more about adults and not the kids. we all agree they are bonded to the kids and have the best interests at heart but what we are talking about over decades laws change and societal views change, there are consequences. what this comes down to is not whether you agree or disagree but whether in drawing policy lines every marriage definition includes and exclude some people. the possible harm you change the definition -- >> what is your response to the fact?
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we assume, assume, a, basic purpose of marriage is to encourage an emotional enduring bond between parents and children allowing gay people to marry the week. after all some non- gay couples have children, and some don't. some gay some gay people marry and have children command some don't. so what is the empirical connection? that is what i have a problem within your argument >> it is relatively simple. if you do you think marriage you would expect to have more children created outside of the bonds of marriage. a reasonable voter right now -- >> the empirical part of what you just said if you believe that marriage -- i just heard you say it.
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>> because you are changing a slightly the state's interest. you are talking about the state's interest and bonding parents and children generally. if that was the interest that motivate this definition there would be a different answer. >> i have never heard of the state that said it was our state policy that we do not like adoption. i have heard of many states to say it is very important to treat adopted children the same way that you treat natural children. i have never heard the congress. >> let me be clear. adopted parents are heroic. you are talking about children who have for whatever reason, death disability, abuse, already separated from their biological mom and dad. that is an entirely different social issue.
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we're talking here about a world -- >> they are connected. >> they are related, sure. >> you think about the potential adoptive parents many of them are same-sex parents who cannot have their own children and truly want to experience exactly the kind of bond you are talking about. how does it make those children better off by preventing this from happening? >> we have someone regardless of sexual orientation to adopt. >> but by saying that the marriage, the recognition of marriage helps the children to argue? you would rather -- the whole basis of your argument children and marital households. more adopted children and more marital households whether same-sex or other sex seems to be a good thing
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>> that is a policy argument and reasonable people can disagree. >> i'm not trying to put words in your mouth. i am just saying it seems to me inexplicable given what you said are your policy interests. >> because if you change the societal meaning of marriage and society has started to move away from that we understood marriage to be the more that is separated the more likely it is when you have an opposite sex couple that he will not be maintained. more kids being raised without the biological mom and dad being raised without both parents and typically without a father but not always the case and it is not unreasonable in
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picking about the possible consequences of changing a definition that has existed for millennia that might have real consequences. consequences. to say otherwise is to say it is irrational or person to think that changing an idea will have no effect on how people think. >> you can't change some idea about marriage is the.i made earlier. today it today it is not what it was under the common law tradition. the relationships, dominant male to the subordinate female. implemented in 1982. it's just that. no state is allowed to have such anymore. would that be a choice? marriage the way that it was. >> absolutely not because the state did not have a
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legitimate interest in making anyone subservient to anyone else, but here the states entire interest stems out of the fact we want to link children with the biological mom and dad when possible. i want to get back to line drawing and how no matter where you draw the line what there asking you to do is take an institution never intended. and when you do that tens of thousands of other children we will likewise be left out and so for those exact same dignitary harms. you talk you talk about the spectrum of marriage definitions, different places to draw the lines and potential harms that is the quintessential place for the democratic process to work. >> just in fairness i don't understand. i thought that was the whole purpose. it bestows dignity.
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these parties want to have that same in a moment. >> you are missing my. if we go back to the world where marriage does not exist and we're trying to link together these kids and their biological mom and dads when possible it's not necessarily about dignity. dignity may have grown up around marriage as a cultural thing but the state has no interest in bestowing are taking away dignity from anyone. certainly not same-sex couples or anyone. >> states would be surprised with reference to traditional marriage they are not enhancing dignity of both parties.
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>> the main issue is the states do not intend to the stowe dignity. if you turn it into a dignity a dignity bestowing institution of the family structures and institutions would suffer dignitary harms. you cannot draw the line there. we're talk about balancing harms, the most fundamental of questions has other, you know, important things to be thought about one of which is what people have to act through the democratic process it is worth it to sit down and civilly discuss an issue and try to persuade each other command we have seen that happen in 11 states. if you read some accounts that could happen in many more. when you enact social change of this magnitude it is coming off that dialogue and saying one group gets their definition and the other is maligned is being irrational which is not the way our democratic process is supposed to work and there are long-term harms our country and that fundamental liberty interest to govern ourselves.
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if you take away that dynamic from a court imposed decision. >> i mean,, of course we do not live in a pure democracy, a constitutional democracy, the constitution imposes limits on what can be done done and this is one of those places. we see them every day. we have to decide what those limits are. operate purely independently. >> justice kagan come as we discussed there is not a constitutional limit that tells people to marriage definition they have had for millennia is so irrational that it is unconstitutional. we have not seen that under these courts. the fundamental rights doctrine -- >> but that is the question.
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whether they are quality limits. let's go back to the liberty limits. >> sure. >> the right to marry within, blocky, turner. and all of these cases will we have talked about is a right a right to marry. we did not try to find the right particularly. is there a right to interracial marriage right to marry if you are a prisoner? we just sit there is a right to marry is fundamental and everyone is entitled unless there is some good reason for the state to exclude the so so why shouldn't we adopt the exact same understanding hear? >> well, the same cases you just mentioned every single one of those talks about marriage in the context of
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men and women coming together in creating children. >> but there were dealing than with men and women coming together. the question was, there might be a black man and a white woman or a black carbon and a white man and there was no inquiry into whether that was a traditional form of marriage. if there had been they would have come up pretty short. >> historically that was not part of the tradition. >> it tradition. >> it is not a part of the tradition, that is right. it is irrelevant that that is not part of the tradition because there is no good reason for it not to be. >> discrimination has nothing to do with the state interest. >> very clearly not just a racial case but a liberty case and indeed exactly what
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this case is it shows how liberty and equality are intertwined. >> no. if the couple could not get married they cannot enjoy private intimacy because it was subject to criminal prosecution of jail time. all of these cases there were other models that prohibited. >> that has to do with prisoners. if the state interest is in fostering procreation it seems to me you can get married if there is a child on the way. and that would promote the interest. we said that is not enough.
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the fundamental rights to marry this does an important connection even if the prisoner at the moment had no chance of procreation. >> justice so to mayor, you are well aware of this court decided to cases. even someone in prison with the expectation of getting out sunday has the right to consummate the marriage. appropriate for the state to deny them the opportunity to marry. even they're you are tying state interest asserted here to marriage. let's take away all laws regarding cohabitation and intimacy outside of marriage so that there is no criminal conduct. if the state today decided to have no marriage, that would not violate a fundamental right. it was the right to be left
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alone not the right to force the government to come into your home and recognize something and give you benefits. those are two different things. i am reluctant to bring that up. roe. roe v wade, this court said the government cannot interfere in that private choice. it is a fundamental choice. a woman cannot force the government to participate in that by paying for it. cannot interfere in private intimate conduct. the court cannot say as a constitutional matter you cannot force the state into those relationships by forcing them to recognize and give benefits. that is not the way it works so back to your.about how the constitution does put
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limits, there have not been any identifiable limits. you would have to somehow change one of those doctrines, change your fundamental rights doctrine, change equal protection doctrine, and to change those features the balance between the federal courts and the people voting in the democratic process. >> it seems as though you are doing something very different than we have ever done before, defining constitutional rights in terms of the kind of people that can exercise them and i don't think we have ever done that will you have seen a constitutional right we have not defined it by these people can exercise it but these people cannot, especially in the case with the claims are rights -based and equality based. it would be like saying there is only a right to intimate activity for heterosexual people and not for gays and lesbians. of course we did not do that
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once we understood there was a right to engage in intimate activity it was a right for everybody. >> but that is the states whole. the state has drawn lines the way the government has always done. >> it must be. >> you are drawing distinctions based on sexual orientation. >> zero, gosh, no. the state does not care about your sexual orientation. >> i'm not asking about your reasons and bloody you have any. whether you have any are not you are drawing distinctions based upon sexual orientation. that is what these laws do. >> based upon sexual orientation, very different.
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>> the context. >> altogether. >> as you said, that does not necessarily mean animus. >> what do we say? something about if you prevent people from wearing yarmulkes it is discrimination against jews. >> the case i was talking about was the one that affected abortion. >> said what i said. >> right. [laughter] >> read anything, i will certainly go back. i do recall the case generally and do not believe there is anything that says basically a pretty all right to be married is a right that extends only to
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opposite sex couples. those were not really issues in the case as they are here i would be surprised if this court wrote that. if it did, if it did and you can immediately call that to mind, i will look at it. i doubt it is there. >> i apologize. >> that is quite all right. >> you will find the court said it is the limitation of marriage to opposite sex couples. >> how can the limitation -- the fundamental right has to be a right to marry. the limitation -- >> did he join that opinion? >> i believe he did. >> my lord. >> if i can briefly. so clearly decided.
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>> i want to wrap up. obviously emotional issues are reasonable people can disagree. the state generally has no animus and does not intend to take away dignity. but this court taking this important issue will have dramatic impact on the democratic process. >> thank you, counsel. >> i just want to say the ideas will change. they can choose to marry because of the commitment. they are marriages same-sex couples. second, we agree that
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restrictions are linked to gender, classification. ideas about what is a proper relationship. that is obviously not the person of the same sex. intensely vulnerable children. a healthy child. denied the marriage because they did not conceive those children together. now, drawing a line because it does not approve of the relationship no matter what the protestations. next not respectful because it is drawn based on biology one casualty is the impoverished view of marriage and the role of biological probe creation.
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the entire premise is a same-sex couples marriage those two cannot be further apart. people make sure their own decision is beyond attenuated. other people who raise children. these relationships we are talking about the foundation different adult relationships same-sex couples who have committed to raising children is stigmatizing. if i may the only way i can understand the.about procreation in biology and so on his work on a brief. they care about people who have children together stay together providing a long-term stable situation for they're children.
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that interest applies for force in this context because by denying marriage you are denying that or the protection for adults which is independently important denying protections and security that would come from having married parents. with that -- >> thank you, counselperformed in
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states where it's legal. this is about 50 minutes. >> >> we now hear an argument on the second question. >> mr. chief justice of it may please the court the question is the petitioners are already married and they have a liberty interest of fundamental importance. a state shed not effectively dissolve with the important
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justification to do so. >> they put their lives around their marriages just as opposite sex couples have done. but to undermine the stability for the states to support such stability. >> i was surprised to hear argument with the arguments we just heard whether there would be an obligation to recognize the same-sex marriage and enter into another state without was lawful even if the state itself does not recognize same-sex marriage. this court's decisions to
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establish not just a right to be very, very been married it is in the status of one's marriage. >> even if that is not lawful under the receiving states lock? >> that's right. >> let say someone gets married in a country that permits polygamy add to the states have to a knowledge that marriage? >> there are implicate -- implications for not doing so simic that this state -- contrary to state's public policy. >> no. i think it doesn't have such an institution in.
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it would raise all kinds of questions. >> we don't have such an institution because the second question assumes that the first comes out that the united states does not want it to come now. only to have the institution of heterosexual marriage we don't have the institution of same-sex marriage. >>. >> the only institution we have is heterosexual marriage. >> also happens under their laws to remove gender specific language with gender neutral language.
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but that plural of the relationship are those questions that are not addressed. >> what if one state says individuals could very at the age of puberty at a total female with the other state be obligated to recognize that marriage? >> what it would have is an interest to protect the true consent of the married person. lowe's states don't recognize minors' ability to consent certainly not to something as important as marriage. but states to recognize marriage by age that they cannot marry within their own state. that is a longstanding practice precisely because of the abomination of the
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different marital state and others. >> what about those situations? >> what about getting married? at least one state does not. >> the constitutional test test, does it have an interest not to recognize it? >> this is not incest. >> this states that i am aware of that has the rules do so under incest. said to be in a broadway for
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because is to marry. when that relationship is to extenuated i don't think it does. >> but the question points out is the assumption the way they are presented is the state does have a sufficient interest stood views to say this is not a fundamental right to. why should the state have to yield? >> that it could serve for not allowing couples to enter marriage as related to those who are already married.
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sunday interested only permitting opposite sex couples to marry. by that theory they're already married in half the states of the country. if it was sufficiently important but to have that obligation to each other to be hard biologically even though they already have children together. >> that is not rational. >> so though long-term effects of same-sex couples said kentucky that you did not agree with with
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heterosexual marriages and a reduction of the number of children born in those marriages. >> but the court has rejected that speculation as the basis to draw those distinctions. so what would be on their children. >> but if it comes out the way this question presented to say it is okay to say same-sex marriage. >> but to have the stability that marriage provides for children that interest does not justify for those and already a cyst. >> then the argument is
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newt? so with that situation the state's can retain its banner to recognize marriage from route estate. good if there is a ban on same-sex marriage. >> no your honor. i don't think there is a distinction none of them draw that line. but as the court observes the nonrecognition laws are a stark departure through the traditional practice to recognize that a state marriages it is precisely
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that circumstance where the issue arises. the three states that with the five instances could not recognize a marriage. that is incest that is justification not to recognize not the president that the court would want to rely on in this instance but such as the rule to allow a divorced person to rebury. but from 1970 the ruble to disregard for those that
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already exist in is less applied then the federal government's own authority. >> you are avoiding the perception that the state's policy is sufficiently strong but to prohibit that. but you say it is so much weaker? >> there are a couple of points to distinguish but it was very significant on a rational basis but being allowed to vary in the first instance.
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but we also know with that sovereign disregard from marriage connected the extraordinary and out of character at the very least careful consideration. it undermines the state interest. >> but to say those that are married elsewhere. to be a matter of time to be in effect. >> but of one state set the policy for the entire nation
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>> there would be fewer such couples but for those setter not biologically from them but the arguments of the feelings it could only be a pretext. we know that is true. because they don't draw the lines and they would never draw the lines. >> those lines that marriage for those couples that can prebiological be without assistance. the states don't draw those lines. but they actually have laws to support with stability.
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>> i thought the states never categorically passed a law declaring that type of marriage from public policy. >> edits they have never done that. . . are out of character. unprecedented in the language of rumber in many respects. >> you're saying that the laws in some states, the states that you're referring to that recognize only opposite sex marriage are pretextual? >> they're nonrecognition laws yes, because the long standing practice of the states is to recognize marriages validly celebrating everywhere. >> we have the distinction between same sex marriage and
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opposite sex. what is is next most dramatic variation that exists in the major laws of the states? >> at the time, certainly sper rational. >> present time. the next most dramatic difference. >> well -- the laws are the closest analogy. but what's different if i could because it goes to justice sotomayor's question. >> i asked a simple question. at the present time what is the next most dramatic variation in marriage laws of the states? >> it probably is age. >> and what's the range? >> i think it goes from 13 to 18. but as i said before, the tradition of the states, the issue does not come wup much, but but the tradition of the states is to recognize a marriage that was entered into by someone of an age that could
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not have been entered into, recognizing that the fundamental nature of that relationship is not one that the state should put asunder. >> i thought you answered me earlier that a state could refuse to recognize a marriage contracted in another state where the minimum age was puberty. >> 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 category cal nature -- >> i think the presumption would be that a state that's among age 13 can't consent. >> 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 couple had already conceived of a child, it would do no one any good to
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destroy that marriage and for the children. just as it does no one any good it certainly doesn't advance the interest of the children of opposite sex couples to destroy the marriages of same-sex couples who are already married. >> i think your argument is the opposite of the petitions in the prior case. the argument was can't do this, never done this before. recognize same-sex marriage. 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. >> well we have to decide one of the other of you win. >> i don't think so at all, your honor. and i think what's essential and common between us is that we recognize that the marriage that our petitioners have entered
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into is a marriage. it is that same institution that same most important relationship of one's life that this court has held out -- >> maybe i'm just repeated 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 marriages as a marriage. so many have lost on that. you can't say that they're not treating the marriage as a marriage, when they don't have to do that in the first place. >> i think that that actually highlights one of the problems of trying to decide two cases differently. because deciding against petitioners on question one, even if the court decides in favor of the petitioners on question two, 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 so favorable -- >> are you arguing question one now, is that what you're doing? >> no. >> but you were.
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>> i'm suggesting that even a win on question two does not fully validate our petitioners marriages. but we think the state cannot disregard them cannot dissolve existing marriages without a sufficiently important reason for doing so. this court recognized in the case that marriage procreation, family relationships, child rearing, are fundamental aspects of autonomy that same-sex couples can enter into, can choose for purposes of autonomy the same extent as opposite-sex couples. especially when those couples have done so have established a marriage, have brought children into it. i'd like to give an example if i could. because i think it brings home what's really happening. matthew and jonathan married in california in 2008. in 2009 they adopted two
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children. now, in reliance on the protection that is afforded by marriage, he's willing to give up his job to become the primary caregiver of their children. mr. mensal is the primary bread-winner. his job at an international law firm was transferred from colorado 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 they've had in giving up his career to look after their children. >> it would have been the argument made with respect to the first question. namely, that the existence of
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same-sex marriages erodes the feeling of society regarding had the -- regarding heterosexual marriages. >> as i said before, your honor, i don't think that holds up because opposite sex couples who have no children, who may be beyond child-bearing 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 procrete biologically together but through assisted means and adoption, they bring children into their families just as opposite-sex couples do. and when in relinss on theirance of their own states they move into these states that marriage is destroyed. the court relied on federalism, the vertical kind in windsor
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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, in reliance on the protections the law affords, to establish families, that it is not that the 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
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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 as mere pretext as grounds to destroy it. >> the state's rationale is we treat outsiders the same way we treat insiders. >> well thank you. they certainly have offered that. but what the state ignores is that these so-called outsiders
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are already married. the state it's true, said 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. 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 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 to dismiss the marriage when a woman reaches 55. that's not permissible the states don't that and they never would do that. the essential protection against
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arbitrary laws is that the majority has to live under the same laws that they could subject the minority too. there's no chance that the majority would subject themselves to such a law as that. i'd like to reserve the remainder of my time. >> thank you, counsel. >> mr. article 4? 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? >> your honor, this court's cases have made clear that the court draws a distinction
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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. >> public act, it would include the act of marrying people i assume. >> my understanding of this court's decision, the reference in the constitution to public act systems is each state's laws. >> so there's nothing in the constitution that requires a state to acknowledge even those marriages in other states that are the same? >> that's essential correct your honor. >> really? >> under this court's decisions, that's essentially right. under the jurisprudence with regard to allstate in alaska packers and so forth that there's minimal due process requirement to decline to apply another state -- >> we can say the only marriages
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we acknowledge in new york are marriages concluded in new york is that possible? >> i'm sorry? >> 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? >> yes, your honor. >> really? [ all speak at once ] >> what case is that? what case would you cite to support that? >> i'm not sure i understood the question properly. >> i already have several cases to read, i might as well get another one. but what is the case that holds that the state of new york has the right to recognize only marriages made in new york? and if you're married in virginia, new york has the constitutional right to say, we treat you as if you weren't married, whoever you are. >> i did misunderstand the question. my understanding of the question was whether new york could decline to recognize an
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out-of-state marriage that did not comport with new york's law. >> that's not what i said. >> because it is clear that it's the law of two states that's the same that was used against fedder. and the state cannot say we won't apply the other state's law, even though it's the same as our own. >> even though it's the same as ours? >> yes. >> like, new york, for example, has a law that i happen to know that a federal judge from washington couldn't marry someone. you could get married to your own wife, but you can't marry two other people. but the district of columbia has the opposite law. so if i married two people in washington, d.c. and they happen to move to new york you're 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? >> i think that -- >> and what case is that? i think there are a few people going to get nervous about this.
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[ laughter ] >> my answer is based on essentially this court's decision in nevada versus hall. because the states own law sets its own policy and the other state's law would be in conflict of that state's policy. >> 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 couples marriages for the reasons that we fear that if gay couples get married, even if they have children and adopt them, and 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? did you follow that question? it's a little complicated. >> i probably did not, but i'm going to try to answer. i think the underlying focus is
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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 agreed and -- >> i don't know if this has anything to do with article 4, right? none of this has anything to do with article 4? full faith and credit right? >> full faith and credit provides the background 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 -- >> you're making distinctions between judgments. this whole thing applies to judgments. you can't refuse a decision in a sister state because you don't
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agree with -- >> yes your honor. 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. >> 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 tuesday for a lot of things. why would the gay marriage issue
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be so funeral that that can lead them to exclude a whole category of people from recognition? >> it goes your honor, to the essence of what i think, in fact, both questions before the court today get at and that is it's a 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 evolves from,
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that every state has the same definition, every state shared the same interests, so there was a liberal policy of recognizing marriages from one state to the other -- >> you think -- >> i'm sorry? >> you think marriage decrees are closer to laws than they are to judgments? you need to get a judgment for divorce. and i think that, in my mind, that makes the decree much closer to a judgment than it does to a law. >> i think that the performing of a marriage is closer to law, 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 judgment, 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 has drawn?
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>> what is an order -- an act under the constitution that's not a judgment? >> i didn't catch the first part of your question, your honor. >> how do you separate out the terms that justice scalia gave you? they're not all judgments. >> no. >> three different terms were used, or four different terms were used. >> records and judicial proceedings is what i recall and my understanding of the court's jurisprudence is that that refers to laws and records and judgments in other states. 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 the petitioners relying on which is the commentaries on the conflict of law. >> outside of the present controversy, when was the last time tennessee declined to recognize marriage from out-of-state? >> any marriage, your honor? >> any marriage.
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>> 1970 that involved a stepfather and a stepdaughter. i would hasten to add though because of 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. >> 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. >> it was and it 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's my point. as soon as states were confronted with the reality that some states were going to
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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 -- >> a question is a very unusual situation. first of all, we have to assume that the 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 he 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 a marriage of very young individuals.
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so the question is whether there could be something in between. there's a sufficient reason 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 the marriage performed out of state. i suppose that's possible, isn't it? >> well, let me answer it this way and hopefully i'm answering your question in doing so. let me be clear the justifications that have grown over time in 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 it's not the man-woman definition that it is simply the state's interest in maintaining a cohesive and coherent internal state policy with regard to marriage that justifies not recognizing those marriages. otherwise, as the question that was put earlier indicated, any
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resident of the state could go to another state, get married come back, and demand to have their marriage -- >> 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 self-marriage celebration. >> and we're talking about the fundamental difference between marriage of the traditional definition and the same-sex marriages that other states have adopted. >> the prerequisites are always a state's judgment about marriage. but what should be a recognized marriage, they make exceptions. but, your honor, the difference here is the landscape that we find ourselves in. tennessee, ohio, kentucky, other states with a traditional definition of marriage, have
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done nothing here but stand pat. they've maintained the status quo, yet other states have made the decision and it's 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. >> it is odd isn't it? that a divorce does come a 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. >> i understand the point, your honor, and again, i think it falls within the court's distinction between the recognition of judgments and
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law. 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 intrusion upon the state's ability to decide for says it important public policy questions. >> and to maintain -- particularly when you're talking about recognition, there's 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's a man-woman relationship. in windsor, this court recognized and observed that marriage is the foundation of the state's ability to regulate domestic relations.
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and to give you one concrete example, that comes up in this case itself, one of the incidents of marriage is the child -- the presumption for parentage that comes with a marriage. and for the state to be required to recognize another state's marriage where there's a child of that marriage in a same-sex situation, would fundamentally alter the state's definition of parentage -- >> i understand your argument that it's a fundamental public policy question about whether you're going to recognition same-sex marriage or not but i don't see the difficulty in following the consequences of that under domestic relations law, treating a couple as married. the first question is a big step, but after that it seems to me the question of how you apply the domestic relations law is pretty straightforward. >> this is part of the reason why i wanted to mention this in
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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, 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 terminology -- >> but you do that for adoption. what's the problem? this is a really big deal? >> it is a big deal your honor. because you're changing the way the state defines a parent. and in the adoption context you have to understand, adoption and the traditional definition of
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marriage, they work in tandem. they work together. and as mr. burkes 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 -- >> do you think that a state can fail to recognize the birth certificate of a particular -- another state? >> i'm not -- >> just that. do you think the word "records" in the constitution includes birth certificates? >> yes. >> so california without any reason no suspicion of fraud, no anything could it refuse to recognize another state's birth certificate? >> i have to admit your honor i can't speak to that. >> records to me have to have a meaning. >> record has a meaning it
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does, your honor. the reason i'm hesitant is because i know there's disagreement in the cases about exactly what the impact of that is between whether that just means we have to knowledge the existence of the record for evidentiary purposes or whether the effect of the record has toon acknowledged. and as i stand here -- >> i recognize that's an issue, 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. >> the marriage certificate -- >> it's a record. >> -- certifies, and i guess it goes to the point t 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.
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[ inaudible ] -- have complained about -- [ inaudible ] -- the rights that they enjoyed under the marriage as it was defined in new york for example, or california. federalism accommodates this situation. it's the streppingt 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
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structure to do what it was designed to do and to accommodate those different points of view. and that is why we ask the court to determine that the 14th amendment does not come in and then disrupt that balance and impose a duty on one state to recognize the laws and to recognize the marriage of a different state, because of the intrusion it would have on that state's public policy. >> just a quick question. >> yes, your honor. >> you acknowledge that if the state loses on the first question then the state also loses on the second question? >> i do your honor. yes, your honor. no further questions. we ask you to affirm. >> thank you counsel. you have five minutes left. >> thank you, your honor. if i may start with the assertion that tennessee laws always put parental laws in biology, that is not so. tennessee law, and i'm going to
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quote from 36 -- i'm sorry. 683306 referred to on page 15 of our reply, provides that a child born to a married woman as a result of 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 couple is of opposite sexes. the import of that for real people, like doctors tanko and justy is that they, who fell in love and married while in graduate school in new york, as many academic couples, were only
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able to find a position as a same university in tennessee. they moved there and their tanko has given birth to their daughter in tennessee. now as a result of the non-recognition laws, when as occurred last week, their daughter is hospitalized tennessee would treat dr. justy 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 dakoo and his husband didn't have a choice. united states army moved them to tennessee. and given the location of army bases in this country, it's
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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. let me get back to your comment about categorical and how unprecedented it is. because even in the age of anti-miss ojination laws the states would give some purposes interracial purposes such as per purposes of estate, giving out the proceeds after a death, or otherwise. here however the state statute provides that a marriage shall be given no effect for any reason, even the 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
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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
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