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tv   Politics Public Policy Today  CSPAN  June 30, 2015 11:00am-1:01pm EDT

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and give benefits to anybody. that's not the way our fundamental rights doctrine works. so, justice kagan, to get back to your point about how the constitution does put limits, there haven't been any identify abl limits here that defeat the state's interest. you would have to change one of those doctrines. you would have to change your fundamental rights doctrine and your equal rights doctrine, and you change those, you change the balance between the federal courts and people vote ng the democratic process. >> to me, it seems you are doing something very different, you are defining constitutional rights in terms of the kinds of people that can exercise them and i don't think we've really ever done that. where we've seen a constitutional right, we have not defined it by these people can exercise it, but these can't. especially in a case where the claims are both right spaced and equality based. i mean, it would be like saying in lawrence, well, there's only a right to intimate activity for heterosexual people and not a right --
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>> distinctions based on the -- once we understand there was a right to engage in intimate activity, it was a right for everybody. >> we are not drawing distinct distinctions based on identity or the orientation or the choices of anybody. dignity -- what the state cares about -- >> that's what these laws do. >> no. the state doesn't care about your sexual orientation. what the state cares about -- >> i am not asking about your reasons and whether you have any or not, but whether you have any or not, you are drawing distinct distinctions based on sexual orientation. that's what these laws do. a statute that's classified based on sexual orientation is
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very different. they have impact and you would have to demonstrate them under washington b. davis what motivates this and this court has said repeatedly in lain and o'brien. >> altogether, it's not that more of -- and less of that. >> as we said in bray versus alexandria, a 1100% impact doesn't mean that. we have to determine a discriminatory -- >> what did we say? something about if you prevent people from wearing yam kais, you know it's discrimination against jews? isn't that what we said, and it's the same thing here. >> the break i was talking about was the one that affected abortion and the ability to have that, which -- >> sorry -- said what i said. >> right. >> i do call cases generally and i don't believe there's anything
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in those cases that says the basic liberty or right to be married is a right that extended only to opposite sex couples. those were really issues in the case as they are here, so i'm surprised if this court actually wrote that, but if it did write that and you can immediately call that page to mind, i'll doubly look at it, but i just doubt it's there. >> i apologize for not having the page. >> that's quite all right. >> you will find in windsor that the court majority said it's the limitation of marriage to opposite sex couples that has always been thought fundamental. so what we are talking about -- >> that was this and this is now. how could the limitation -- the right, the fundamental right has to be a right to marry. you said it's limitation. >> this court has --
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>> >> join that opinion that said that? >> i believe he did. >> sometimes, context matters. surprised we have this case in front of us. it's been so clearly decided. you want to wrap up? >> i do. your honors, these are obviously very emotional issues where people can disagree. the states generally michigan specifically has no an tau phus and does not intend to take away dignity for everybody, and we respect all parents and hope they love their children, but this court taking this important issue away from the people will have dramatic impacts on democratic process and we ask you affirm. >> thank you, counsel. three minutes remaining. >> first i just want to say that the idea that the ideas of marriage will change is a false dichotomy.
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different sex couples can choose to marry and rear children. they can choose to marry at 70 or 90 because of their commitment to one another. we honor both marriages. it's only same sex couples who are foreclosed from marrying under either vision. second, we agree that these restrictions lead to gender classification here and they're sex linked in an additional way. that is ideas about what is a proper relationship for a real man or real woman and that is not with a person of the same sex. i hear that michigan loves adoption and has placed children with these petitioners who have nurtured them. does michigan deny them marriage because they didn't conceive those children together when michigan would let other adoptive parents who are a different sex couple marry? no michigan is drawing a line because it does not approve of the adult relationship no matter of
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the protestations they follow. does not disrespectful because it's drawn based on biology. i have to say one casualty of the marriage -- is an impoverished view of what marriage and the role of biological procreation. the state's premise is that same sex couples marry and different sex couples won't and have their children in a marriage. those two could not be further apart. people make their own decisions is beyond attenuated and the idea also that there are others who raise children and good for them. it's something that i hope policymakers will support, but adult relationships we're talking about at the foundation here are different adult relationships and telling same sex couples who have made that commitment to one another, that have committed to raising children is stigmatizing. if i may, my last point is that the only way i can really understand michigan's points about procreation and biology and so on is when i look for example page 31 of their brief. and they say that what they care
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about is people who have children together staying together. and providing a long-term, stable situation for their children. that interest applies full force in this context because by denying marriage to same sex couples, we're denying not only the protection for the adults, which is independently important, we are denying those protections and a security that will come from having married parents. so, with that, thank you. >> thank you, counsel. court will take a brief break and return to the bench in five minutes for an argument on the second question presented. we will allow here the argument on the second question in this case.
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>> the question to petitions are already married and established those relationships and have a liberty interests that is of fundamental importance to these couples and their children. these petitioners have built their lives around their marriages, including bringing children into their marriages just as opposite-sex couples have done. but the nonrecognition was undermined the stability of these families though the states purport to support just such stability. >> i was somewhat surprised by the arguments you made in your brief because they are largely a petition of the arguments we just heard with respect to question one. i thought the point of question two was whether there would be a obligation the recognize the
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same sex marriage and turning into another state where that is lawful, even if the state itself does not recognize same sex marriage. i thought that's the question in question two. am i wrong? >> it is the question. and this court's decisions established that there is not only a right to be married, but a right to remain married. that there is a protected liberty interest in the status of one's marriage once it has been established. >> even if that marriage is not lawful under the receiving state's law, right? >> that's right. >> i mean suppose -- well, let's say someone gets married in a country that permits polygamy, does the state have to acknowledge that marriage?
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>> well, of course the state could assert justifications for not doing so and i think there would be for not recognizing -- >> what would the justification be that it's contrary to the state's public policy, i assume, right? >> well, no your honor i think the justification would be that the state doesn't have such a constitution. the, a polygamist relationship would raise all kinds of questions that the states -- >> we don't have such an institution. our marriage in this state, constitutionally can have because the second question assumes that the first question comes out the way the united states does not want it to come out. the state says we only have the constitution of heterosexual marriage, not of same sex marriage. >> the institution is the institution of marriage. >> you say that, the state doesn't. the state says the only institution we have is
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heterosexual marriage. >> the point i'm making your honor is demonstrated by what has happened in those states where by court order, states have had to permit same sex couples to marry. all that has happened under their laws is that they have had to remove gender specific language and substitute it with gender neutral language. >> could i -- if you want to finish answering -- >> i was going to say that plural relationships raise all manner of questions that are not addressed by the states. >> what if it's -- what if one sate says that individuals can marry at the age of puberty, so, a 12-year-old female can marry. would the state, would another state be obligated to recognize that marriage? >> i think probably not. that the state would have in that instance, a sufficiently important interest in protecting the true consent of the married person and most states don't recognize minors ability to consent. certainly not to something that is as important as marriage. but what we see in fact is that quite in contrast to the
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nonrecognition laws at issue here, the states do recognize the marriages of person who by age would not have been able to marry within their own state. that is the long standing practice of all of the states. precisely because of the abomination as it was referred to in the old treaty of the notion that a persons could have a different marital state in some jurisdictions than some others. >> and how about the -- situations. virtually, all-states would recognize cousins through marriage. getting married. there's at least one state that doesn't. saying that state is -- >> i think that the constitutional test is the one that the court set forth in -- which is does the state have a sufficiently important interest not to recognize it? and certainly, in the case of
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incest the state does have a sufficiently important -- >> this is not incest. they're not -- >> they define incest in a broad way that would encompass cousins to marry. at some point, the relationship is too extenuated, i don't think the state would have -- >> the question points out the assumption of his hypothetical is in the way these cases are presented, is is that the state does have a sufficient interest so that need not allow the marriages in that state. so, there is a sufficient interest under our assumption here to say this is not a fundamental right. if you're out of state, it's different. why should the state have to yield?
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>> at the least, you would have to analyze differently the interest that the state might assert for not allowing couples to enter a marriage versus the interest they assert to a couple that is already asserted. kentucky has asserted its interest in only permitting opposite sex couples to marry is to increase the birthrate. now, apply that theory to same sex couples who are married. in the states where they were married. they're already married in half the states of the country. kentucky would have the court believe it was a sufficiently important interest to have that couple disregard their existing marriage vows and obligations to each other to marry someone else in kentucky in order to procreate biologically even though the couple may already have children together, and that
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is not a rational justification -- >> i think what they are saying is the long-term affects of having same-sex couples in kentucky, will be which you didn't agree with, but what counsel for the respondent argued in the prior case, already a reduction in the heterosexual marriages and a reduction in the number of children born to those marriages. >> this court has rejected that type of speculation as a basis for drawing these distinctions before as it did in loving. the state in the loving argued that it was too soon to know what the affect of interracial
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marriages would be and what the stigma would be on their children if not the biological -- >> not have rejected it if we come out the way this question presented assumes we have come out. >> well, the state -- >> saying it's okay for a state not to permit same sex marriage. >> the state asserts it has an interest in the stability that marriage provides for children. that interest is not justify extinguishing marriages that already exist. >> may we -- >> one thing. if the petitioner prevails in the first place, then young is moot, right? >> that's right. >> so, you are supposing a situation where the state can retain its ban on same-sex marriage, and the question is does it have to recognize marriage from out of state, but would it make any difference if the couple came from the state where there is a ban on same-sex marriage, goes to a neighboring state that allows it and comes right back home again? >> no, your honor i don't think
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there would be such a distinction. that's one of the points that's so important here is that as the court observed with respect to doma in windsor, the nonrecognition laws here are a stark departure from the state's traditional practice of recognizing out of state marriages even though they could not have been celebrated within the state. it's precisely that circumstance where the laws diverge that the issue arises. the three states that have this issue, tennessee, ohio and kentucky, are between them, able to identify only five instances in which they did not recognize a marriage, it was valid outside the state even though it could have not have been celebrated inside. those instances are incest, which we think the state would have a sufficiently important justification not to recognize. not a precedent on which the court i think would want to rely or other interests that probably would not survive today, such as the rule against allowing a
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divorced person to remarry. so, they are and more importantly, the most recent of those cases is from 1970. so, the rule that the states site about their able thety to disregard, to effectively dissolve marriages that already exist around which people have begun to build their lives is less applied than the federal government's own authority to define. >> again, i think you're avoiding the presumption on which we are starting the assumption, which is that the state's policy for supporting same-sex marriage is sufficiently strong, that they can as a matter of public policy prohibit that in their own state, and you are saying it's so much weaker when you are talking about marriages from other states.
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>> i think that there are a couple of points i'd like to make in order to distinguish this situation from the question in the first case. in the first case, it was very significant that respondents counsel was emphasizing they thought it was a rational basis scrutiny that would apply, but that was to the question of whether people should be allowed to marry in the first instance. our petitioners in question are already married. we know from windsor that once married, a couple has a constitutional protected liberty interest in their marriage. we also know that from a sovereign disregards that marriage in a way that would be extraordinary and out of character with tradition that that requires at the least, careful consideration. and that's what we have here. >> certainly undermines the state interest that we would assuming our end of recognizing the first case, to say they must welcome in their borders people who have been married elsewhere. it's going to be a matter of
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time until they would in effect be recognizing that within the state. we live in a very emotional society and people move all the time. one state would set the idea. >> there are couples raising children within their borders than heterosexual couples not biologically linked to them. they're so under and overinclusive that they leave the feeling it can only be pretext and we know that's true. because the state not only can't draw the lines that they are purporting to, they don't draw the lines they would suggest and they would never draw the lines. >> i've lost you there. what lines are you talking about? >> a line, for example, that
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limits marriage to those couples that are able to procreate biologically without any assistance. the states don't draw those lines. the states have laws that treat adoptive relationships with the same legal affect as biological ones, and they have laws that further support and give greater stability -- >> your argument would be different. i thought that the states had never categoringly passed a draw declaring that a particular kind of marriage was against public policy. >> that is certainly another -- >> no one of the four states had ever done that. >> they have never done that -- >> until the doma issue came up. >> these laws are out of character and unprecedented in the language of rumber in many respect. >> you're saying that the laws in some states, the states that you're referring to, that recognize only opposite sex
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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 appears sex. what is the next most dramatic variation that exists in the marriage laws of the states? >> at the time it's interracial -- >> 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?
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>> i think it goes from 13 to 18. but as i said before, the tradition of the states, the issue does not come up that much, but the tradition of the states is to recognize a marriage that was entered into by somebody of an age that could not have been entered within the state because of the nature of the marriage once it's established recognizing the fundamental nature of that relationship is not one the states should put us under. >> 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 categorical -- >> i think the presumption would
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be that a state that's among age 13 can't consent. >> age 13, i think you are probably right but if it's a matter of 15 instead of 16 that the courts would probably recognize it especially if in reliance on their marriage, the couple already conceived a child, it would do no one any good to destroy that marriage and that the stable environment it might provide for the children. it certainly doesn't advance the interest of the children of opposite sex couples to destroy the marriages that provide stability to the children of same sex couples who are p already married under the laws of other states. >> 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
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that were lawfully performed in other states. >> well -- >> we have to decide one or the other if 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 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 assuming you have already 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
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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. i'm suggesting -- >> but you were. >> 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.
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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 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.
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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 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
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adoption, they bring children into their families just as opposite-sex couples do. and when in reliance of their own states they move into these states that marriage is destroyed. the court relied on federalism, the vertical kind, in windsor, to identify something that was highly unusual. in this case, it's horizontal federalism, i think, that identifies something that's highly unusual. as part of a federal form of government in which the states are equal, the states have ceded some form of their authority, and one is to recognize that when another state, 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.
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in the corporate context, once a corporation is established under the laws of one state, that corporation exists in all other states. certainly the families that our petitioners have established are entitled to at least that same respect. i think that, your honor, it is quite interesting to note that in the first argument, michigan was forced to argue some positions that i think are quite astonishing, that the state could limit marriage to couples who are capable of procreation without assistance or indeed that it could abolish marriage altogether. it's our clients who take marriage seriously. they took vows to each other and bought into an institution that indeed as this court has said, predates the bill of rights, that is the most important and fundamental in their lives and the state should offer something more as mere pretext as grounds to destroy it. >> the state's rationale is we treat outsiders the same way we treat insiders.
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>> well, thank you. they certainly have offered that. but what the state ignores is that these so-called outsiders 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
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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 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. whalen, the 14th >> mr. chief justice, the 14th amendment doesn't recognize -- >> what about article 4? >> i am so glad to be able to
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quote a portion of the constitution that actually seems to be relevant. 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 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 acts 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.
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there has been 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 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
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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 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.
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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. [ 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
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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 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
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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 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
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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 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
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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, 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
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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 -- >> so what is an order under the cops tuition or act under the constitution that's not a judgment? >> i dependant catch the first part of your question, your honor. >> how do you separate out the terms of justice scalia gave you? they are 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
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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. >> 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
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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 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
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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. 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
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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 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.
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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 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 that a divorce does become a degree for the nation a. divorce
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with proper jurisdiction in one state must be recognized by every other state but not the act of marriage. interesting. >> i understand the point, your honor, and again, i think it falls within the court's distinction between the recognition of judgments and laws. here, i think we are 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
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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. 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 which -- >> i understand your argument that it's a fundamental public policy question about whether you're going to recognition
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same-sex marriage or not, but i don't see the difficulty in following the consequences of that under domestic relations law as treating a couple as married. 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 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 to recognize for many states, and i can tell you in tennessee 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
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change the 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. the way the state defines a parent. and in the adoption context you have to understand adoption and the traditional definition of marriage they work in tandem. they work together. and as mr. birch described the objective with regard to marriage is to link children with their biological parents. when that breaks down then there is adoption. >> do you think that a state can fail to recognize the birth certificate of a particular another state? >> i'm not -- >> do you think the word records in the constitution includes birth certificates? >> yes.
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>> california without any reason no suspicion of fraud, no anything could it refuse to recognize another state's birth certificate? >> i have to admit i can't speak to that. >> records to me has to have a meaning. >> record has a meaning. the reason that i'm hesitant is that i know there is disagreement in the cases about exactly what the impact of that is between whether that just means we have to acknowledge the existence of the record or whether the effect of the record has to be acknowledged. as i stand here -- >> i recognize that that is an issue. if a birth certificate were to be a record don't you think a marriage certificate is an official act of a state? >> the marriage certificate certifies the fact that there was a marriage. i think that the laws that allow
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that marriage to occur when they are different fundamentally with the laws of state like tennessee preclude the application of that same principle from one state to the other. with regard to the effect of requiring recognition on state, i think it is important, also, to consider the fact that petitioners have complained about the impact that it has when they move from one state to the next with regard to the rights that they enjoy under the marriage as it was defined in new york, for example, or california. federalism accommodates this situation.
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it is the strength of our federal structure to accommodate the very difference of view point and the very difference in approach that this fundamental debate that we are having about same-sex marriage generates. and so it makes all the sense in the world with respect to that to allow the federal structure to do what it was designed to do and to accommodate those different points of view. that is why we ask the court to determine that the 14th amendment does not come in and disrupt that balance and impose a duty on one state to recognize the laws and recognize the marriage of a different state because of the intrusion it would have on that state's public policy. >> just a quick question. you acknowledge that if the state loses on the first question then the state also loses on the second question? >> i do. yes, your honor.
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>> we ask you to affirm. >> you have five minutes left. >> thank you, your honor. if i may start with the assertion that tennessee law rooted parental relations in biology . that is not so. tennessee law 68-3-306 referred to on page 316 a child born to a married woman as result of artificial insemination with consent of the married woman's husband the father is deemed the legitimate child of the husband and wife. the husband has no biological relationship with the child. tennessee, in other words, just as with adoption reinforces the bonds of parent of child irregardless of biology as long as the couple is of opposite
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sexes. the import of that for real people is that they who fell in love and married while in graduate school in new york as many academic couples, were only able to find a position at the same university in tennessee. they moved there. and they have given birth. as a result of the nonrecognition laws when as occurred last week their daughter is hospitalized tennessee would treat her 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 council was suggesting that
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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 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 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 as a matter of state law. going to get back to your comment about categorical and how unprecedented it is. even in the age of antimesedge nation laws the state would give effect interracial marriages such as for purpose of a state giving out the proceeds after a death or otherwise, here, however, the state statutes
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provide that a marriage should be given no effect for any reason even the death certificate will not reflect the fact that he was married or the name of his husband. the state has no legitimate interest for denying them the dignity of that last fact regarding his life. the real import of the state's argument is, i believe this. that even when same-sex couples are married they are not in their view married for constitutional purposes that the states can discriminate against these marriages even in ways that the constitution would not permit the states to disregard the marriages of opposite sex couples. i urge the court not to enshrine in our constitution a second
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class status of these petitioners' marriages. thank you very much. >> case is submitted. the c-span cities tour is partnering with our cable affiliates as we travel across the states. join us as we look at the history and literary life of omaha, nebraska where the deporres club fighting for equality. >> it had a reputation as a city that when you came in if you were black you needed to keep your head down and needed to be aware that you weren't going to be served in restaurants and weren't going to stay in hotels. when the deporres club began the term civil rights wasn't part of the national lexicon at that time. the idea of civil rights was so far removed from the idea of the
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greater community of omaha or the united states that they were kind of operating in a vacuum. i like to say they were operating without a net. there were not support groups and were not the prior experiences of other groups to challenge racial discrimination. >> we look back to the union pacific and how the construction of union station helped omaha's economy. >> union pacific is one of the premiere railroad companies of america. it was founded in 1862 with the pacific railway act signed into law by abraham lincoln. it combined several railroad companies to make union pacific and then they were charged to building the trans continental railroad that connects east and west coast. they started here, was moving west and central pacific started on the west coast and moving east. they met up in utah. and that's really what propels us even farther.
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we become that point of moving west, one of the gateways to the west. >> see all of our programs from omaha on c-span 2's book tv and sunday afternoon at 2:00 on american history tv on c-span 3. as you know the supreme court ruled last week that all 50 states must recognize same-sex marriage. the vote was 5-4. we are live here at the heritage foundation here in washington for discussion. scholars examine the court's ruling whether it will impact religious liberty and how the states are utilizing the supreme court's ruling.
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professor and author of this book. ten years ago the supreme court ruled that under certain circumstances it was acceptable for the government to seize private property known as imminent domain. explain this case. >> this was when the government
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can seize your land for various purposes. the constitution says it can only seize it for a public use but in this case what you had going on was the government seizing 15 residential properties in new london for the purpose of giving it to a private development. and the question is that a public use being given to a private party. the supreme court in a very close decision said it was because in their view a public use is just anything that might potentially benefit the public in some way even if the government doesn't prove that the benefit will actually materialize. >> why was this included in the fifth amendment? what constitutes public use? >> the very simple answer is included because james madison wanted it to be there and he played the big role in drafting
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the fifth amendment. i think the deeper reason is that while in some cases it may be necessary for the government to take private property the founding fathers and americans throughout most of the history were suspicious of the idea that the government should just be able to take your property for any reason that they wanted. >> in this case what did the justices point to in this 5-4 decision to say this is a public use? >> i think they pointed to two things. first they pointed to precedence going back to 1950s which said a public use could be almost anything the government said it was. i have to admit they were on the books. the second thing they said the city has a plan. they call it a carefully considered plan and said we are not good at figuring out whether it is a good plan or not so we are going to defer to the city and experts. >> so what happened since the case? >> the plan wasn't as good as
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the justices thought it was and many people recognize that at the time. today ten years later still nothing has been built on the con demnation site. the only regular users are a colony of cats that have taken up residents there and there are improvised cat shelters. there is now a plan to build a memorial on the site to the victims of imminent domain. not the kind of development that was expected. >> here is the editorial on june 23 of this year. it's hard to blame new london for trying. with seven square miles of land it is the second smallest gee ographical municipality in the state. a large swath of land became available the city's ears perked up. >> i don't blame them for wanting to promote development.
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i'm against trying to develop in a way that destroyed existing homes and businesses and in the long run tends to cause economic harm rather than benefit which is what happened here and also in many other cases throughout american history since we have moved to the doctrine that a public use can be almost anything the government says. we welcome those joining us on our heritage.org website. we would remind everyone in house please check cell phones as a courtesy to our speakers. and for those watching online we are always welcome to send questions or comments to simply e-mailing speaker@heritage.org. we will post the program following today's presentation for your reference in the future. hosting our program is direct of our richard and helen devause
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center for religion and civil society. he earned jd from harvard law school. he is an alumnist and is also most recently served in the civil rights division of the u.s. department of justice. please join me in welcoming roger. [ applause ] >> thanks john. so glad to be here. so glad to see such a large turnout for a discussion of what may be the defining issue of our generation, the future of marriage religious liberty and the law. as you know the supreme court recently issued its decision a monumental one with deep implications for the future of society. we had a significant setback. all americans ss who believe in the constitution and marriage of the union of one man and one woman should pay close attention. the supreme court got it wrong.
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we have a distinguished panel to give us perspective and help inform our responses to this decision. please hold your applause until the end of the introduction. we have a washington, d.c. based attorney who specialized in constitutional litigation. he served as associate council to the president and law clark. he argued and won dozens of cases in various form. he is a graduate of byu, holds a masters degree in economics from yale university. dr. ryan anderson at the end, researches and writes about marriage and religious liberty and is a senior research fellow at the heritage foundation. he focuses on justice and moral principles and has expertise in bio ethics and natural law
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theory. he filed a brief. the book which he co-authored is "what is marriage, man and woman" cited twice in the case. ryan is the author of a book which is available for preorder on amazon and will ship in a few weeks. ryan received his bachelors from princeton university, political philosophy where he received his masters degree. carey is chief council and policy director of crisis network. she has written on a wide range of issues. she has filed briefs in numerous cases, testified before congress and is a regular contributor on
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national review online. if you have interest in courts you have probably read her materials or seen her on tv. she was previously a law clerk to clarence thomas. she is a graduate of harvard law school, duke university, holds master's degree from michigan state university and married to the luckiest man in the world, me. please join me in welcoming our panelists. [ applause ] >> so a giantdition with desints and i'm sure there are many take aways. i want to focus on three. i think i might split up. what are the big take aways that you folks saw in terms of the law, religious liberty and
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marriage culture? >> sure. thanks for being here. it's nice to be on a panel where i don't have to tell the introducer how to pronounce my last name. i will start by talking about what the legal basis of the decision is and talk about how it plays out in terms of religious freedom in the culture, as well. justice kennedy's decision he wrote was based fundamentally on the idea of substantive due process and the fundamental right to marry. i would agree that there is a fundamental right to marry. it is something recognized by a lot of cases and most famously in loving versus virginia. however, justice kennedy gets it wrong because he acknowledges court sass that talk about a fundamental right to marriage
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take as presupposition that marriage means union of a man and woman. it is dangerous when we redefine the terms that we are dealing with because you can easily shift the meaning. so, for example, if we were to have freedom of speech and define speech to mean something else then we have freedom to something else. all terms have to carry content. the challenge here is that he redefined the term marriage in the process of attempting to uphold the fundamental right to marry. the way he did so is by looking at some of the cases the court decided previously and four principles from the cases that he viewed as central to this institution of marriage. one is that it was an expression of individual autonomy through personal choice. one is a unique two person union that have particular importance to individuals. third was that it safe guards children and families and
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particularly draws on the rights of child rearing, procreation and education and the fourth is that it forms a keystone of our social order. there are undeniably themes of all of these in the previous supreme court literature, however justice kennedy seems to have cherry picked which principles to look like. the features of the fundamental right to marry doesn't matter if it is a man and woman and therefore the fundamental right to marry isn't defined by that. unfortunately, when by assuming the conclusion he chose the principles that would support it. it is interesting that he didn't actually choose -- it is simply difficult to understand how a particular right to procreation has nothing to do with an opposite sex union when that is
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obviously how procreation happens. so there is a real problem with justice kennedy's bait and switch on this. he takes things that are really there as part of the definition of marriage, isolates only those and not even only those but mostly only those that don't have an obvious connection to the opposite sex couple union and says marriage is about two people having a unit of relationship. additionally after deciding the due process clause that the fundamental right is being denied he claims that the equal protection clause is implicated. it is true that the discussion of equal protection clause and due process liberties are very intertwined and can be confusing
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at times. he didn't follow traditional analysis which is to say what is the level of scrutiny. we know when we look at traditional law there are different levels of scrutiny to give certain distinctions requiring strict scrutiny so it is hard on the basis of race. on the basis of sex there are certain things where there are differences that the government can take into account. he didn't talk about what level of scrutiny we should be given. that i think is a line of cases we see coming out of this going forward. to talk quickly there were four major deissents in the case. in large part all touched on few major themes. one is the decision as a legal matter is not correct, whatever your policy views on the issue -- i actually would wager there pay be different policy views on whether or not they would vote in a referendum who
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would say i want to create same-sex marriage. i think they come out differently on that but all agree as a legal matter the constitution is not where that happens. the constitution is completely ag nostic as to how marriage is defined and if anything the windsor case that happened a couple years ago got it right on this point that the states have traditionally defined marriage law and for state purposes states should be able to do so. that is one feature. another is talking about concerns about the democratic process, concerns about the way that this decision was reached and how that under mines the ability to have this debate in the public sphere. we were all talking about this issue. there were a lot of referenda and state laws in both directions and that has been cut off by this decision. justice kennedy basically said there are all sorts of briefs.
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we have had this discussion. we are done. time's up and now we make the call. i think they say the court doesn't get to be the one that makes that call of you have had enough talking. when it is an issue that the constitution leaves open even if you feel you are sick of hearing the debate you don't get to cut it off. finally, i think some of the panelists will talk about the concerns about religious freedom coming out of the decision. justice kennedy's decision did allude to the fact that as solicitor general said this is going to be an issue going forward. it's taking things out of the democratic process does mean our back stop is the courts. we have first amendment protections but the courts do it. to highlight justice thomas is my favorite having worked for him he pointed out two errors in
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the decision. first it assumes that dignity is something conferred by the government. if we look at our declaration of independence and the constitution dignity is presumed to either come from our creator if one goes declaration or independence or to be innate in a person and not something the government can confer or deny. furthermore he pointed out the inversion of liberty that our nation and really the american legal tradition has history of liberty being freedom from coercion and not liberty being a government grant of benefits. that is what happened in this case the idea that the government conferring the benefit of marriage and the associated benefits is actually
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increasing people's liberty. i will hand it back to roger. >> so you mentioned the dissent there were four that wrote and spoke on religious liberty. what do you think about the extent of the dissent being for them and how much weight is to be given to those arguments compared to what justice kennedy had to say about it. >> what is interesting to me is the extent of the recognition that there really is a conflict between same-sex marriage or institutionalized same-sex marriage and religious liberty. you might wonder why is that. what a lot of people don't seem to recognize or remember is that all three of the major abrahamic religions and all other major world religions have for
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millennia have taught that a man/woman union is not just an incidental feature of marriage but is central to marriage. and that of course, is fundamentally different from some religious teachings about interracial marriage which, of course, was the issue in the loving versus virginia case. i spent high school years in the south and never heard of any religion that viewed racial as a central defining feature of marriage. there were some people who thought that was preferable for sometimes religious reasons. i'm not aware that any small or large religious body has ever taught that racial is the central defining feature of marriage. that is fundamentally different from the situation that we have with respect to same-sex marriage. there are a few religious groups
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that have broken from that tradition. if you look at the number of people that claim to adhere to those religions it's a pretty minuscule percentage of the population of all believeers. and so there is this enormous conflict or at least enormous potential for conflict between same-sex marriage in general and the decision in obergefell and religious freedom. that may be one reason that justice kennedy sort of went out of his way in numerous places in his opinion to try to suggest respect for the religious view point on this issue. in fact i think of all of the opinions that have been written in the course of this litigation over the last couple of years that have ruled in favor of same-sex marriage, justice kennedy's opinion is probably the most respectful of religion. so those of us who care about
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religious liberty can be grateful for that. and just for example, justice kennedy did not rule the traditional marriage laws were based on animus or hostility or bigotry towards gays and lesbians. a number of people were urging the court to rule that way. he did not rule that traditional marriage laws are irrational as judge posener ruled for the seventh circuit not long ago. either of thosinge rulings would have been taken as a holding in opposition that same-sex marriage was manifestation of religion and other bigotry against gays and lesbian rather than defensive position. justice kennedy also implicitly rejected the u.s. justice
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department's position that sexual orientation is suspect class and that kind of ruling would have created a whole host of religious liberty problems outside of the marriage context. so those of us who care about religious liberty can be grateful that justice kennedy's opinion dodged some big bullets, but the opinion unintentionally i think launched a number of grenades that are still in the air. as i thought about it i have identified really 12 concrete threats to religious liberty, what i call the dirty dozen. and in the very short time that we have i'm not going to try to explain them in detail but let me list them and maybe we can talk about them later. one is the issue that was raised at the oral argument about tax exempt status.
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you probably remember that exchange between justice aledo asking if we rule in favor of same-sex marriage doesn't that create a risk that religious organizations that believe in the traditional view of marriage would have their tax exemptions revoked. and after initially appearing like he was going to try to dismiss the question decided that he needed to be frank and honest and he said i can't deny that's going to bowe an issue. it's going to be an issue. and so that's certainly -- it is going to be an issue, i suspect. the fact that the obama administration has not done anything to walk back from what he said at the oral argument suggests to me there may be people within the obama administration who are actually planning to issue a regulation
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or some kind of decision that would, in fact deny tax exemptions to some religious institutions that choose to adhere to traditional understanding of marriage. and my first six examples are in the area of what i call institutional religious freedom that is the ability of religious institutions to carry out their self defined religious missions. the second one is an issue that justice scalia raised which is a church's authority to have marriages performed by its pastors recognized by the state, by civil government. that is the standard practice. any minister who marries people in the united states, that marriage is recognized not only for religious purposes but for legal purposes, as well. justice scalia raised the
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question if we rule that same-sex marriage is required by the constitution isn't that going to set up a situation where churches that don't believe that a same-sex marriage can be religiously legitimate aren't they denied the ability to marry people and have those marriages recognized by the state? aren't they going to be denied ability to marry anybody and have the marriages recognized by the state? that i think is likely to be a serious issue over time. chief justice roberts raised the issue of religious school housing policies. as you probably know most religious colleges in the country have policies that they have special housing for married students, but in order to use that married student housing you have to be married in accordance with the beliefs of that particular religious college.
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the chief justice raised the question aren't those policies going to be cast into doubt if we rule in favor of same-sex marriage. that is a another serious issue. and even scarier prospect from my standpoint is the licensing area which is very important in higher education, religious colleges, like every other college they depend on their ability to get accredited by a wide variety of accrediters in order for their students to be able to get federal funding and in order for their students to get jobs in a lot of professions and so if same-sex marriage is really the law of the land and really constitutionally required isn't there a risk that accrediting bodies are going to start pressuring religious colleges to recognize same-sex marriages for all purposes on
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their campuses as a condition of accreditation? and we have seen a similar issue with regard to other religious organizations like catholic charities that in some circumstances need licenses to carry on their works, for example, licenses to place children for adoption and those sorts of things and catholic charities has been forced to withdraw from providing adoption services in some states as a result of licensing policies that told them in order to be licensed in our state to provide adoption services you have to place children you have to be willing to place children with same-sex couples on equal terms with opposite sex couples. to do that would have violated the religious beliefs of catholic charities so they chose to withdraw. that is going to become now a nationwide problem, not just a state by state problem. and then more generally
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religious institutions constantly face the question of can we apply religious criteria in making employment decisions and deciding whom to hire and whom to promote and all of that? and, of course, for churches and religious colleges and other religious institutions that adhere to the traditional definition of marriage they want to be able to hire people who agree with them about core issues like marriage and the purpose of sexuality and all of those sorts of things. but the obergefell decision casts into doubt because there is exemption in federal law but a lot of laws don't have similar religious exemptions so religious organizations in those states face a serious issue of
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to what extent they can continue to apply religious criteria. >> you list a whole lot of institutions that is mediating between government and civil society. i want to take the conversation to the broader culture, see if you can speak on how the institutions are addressed by the decision because kennedy does speak about the wider culture. these institutions are caught in the middle. what are your thoughts on the cultural question? >> the cultural question is probably most important question in the long run. the central thesis of my new book is that the promarriage movement is in the same situation culturally that pro life movement found itself in. the work that needs to be done in is three steps, the three steps that we divvied up. the first step is correctly identifying this marriage ruling
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as judicial activism. we have never accepted row v wade as final word on constitution. for 42 years we have been bearing witness to that truth, the same thing needs to happen with this supreme court ruling. the second point, one of the first things that the pro life movement did was protect the rights of conscience for all american citizens to never have to pay for aboergz or perform an abortion if it violated their beliefs. in the same way the promarriage movement will need to protect our rights not to be coerced by the government into violating our belief that marriage is between a man and a woman. step three is the harder more difficult long term program of bearing witness to the truth about marriage in a legal
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culture. every year on january 22 hundreds of thousands of citizens come for the march for life. feminists for life, silent no more. women speak for themselves. students for life. the list of groups that sprung up in the wake of the decision has been remarkable. there has been a concerted cultural effort. what do we do on the marriage front? because the reason that the government was in the marriage business in the first place is that marriage places a limit on the state. marriage in civil society limit the government's proper domain. the state has to recognize the truth about marriage and not free to redefine what marriage is. the same way the state has to recognize the truth about our natural right the state is not free to redefine who has a
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natural right to life. we have to remind citizens of the basic fundamental truths especially of political fillacy off which justice kennedy seems to ignore. justice kennedy the driving part of his opinion is his philosophy of marriage. as carey mentioned that has no basis in the constitution but it didn't come out of thin air. justice kennedy's philosophy of marriage is the natural result, the logical result of the past 50 years of the break down of the american family. it's the natural logical conclusion of the sexual revolution. it is only a culture that has had the spike in nonmarital child bearing, the fundamentally misunderstood the nature of the family and human sexuality that 50 years later would even contemplate redefining what marriage is and having five unelected judges redefine
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marriage for the entire country. let me quote a law professor who went through kennedy's opinion and collected all of the words that he used to describe what marriage is. she says the supreme court rules instead that marriage is about adults defining and expressing their identity adults desire for fulfillment aspirations autonomy, self definition. the avoiding of loneliness and desire for companionship and understanding. nowhere is there any discussion about a child's right to a relationship with a mother and a father. the central defining feature of what got government in the marriage business in the first place to make sure that men and women commit to each other permanently and exclusively as husband and wife so children have a mom and a dad totally ignored. never seriously engage any of
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the arguments that litigators like gene were making the attorney representing the state of utah and state of idaho. didn't engage the briefs that people like me filed didn't engage it at all, just to say in one throw away paragraph that it is counter intuitive argument. it is true. and the best way to see this is think what happened after we redefine marriage of no fault divorce. under certain circumstances you could file for a divorce and common law tradition abuse abandonment and adultry serious reasons for saying relationship is being terminated. with no fault divorce you could file for divorce for any reason or no reason. we saw divorce rate more than doubled because ideas have consequences and bad ideas have
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bad consequences. what happens now? take washington, d.c. the children who live in georgetown are by and large born into married families and raised into adulthood. other children are born to single mothers that have absent fathers. how do we as a culture rebuild a strong marriage culture insisting fathers are essential when anthony kennedy redefined marriage to say fathers are optional? that is the cultural message we have to respond to. in the same way that row v wade told a lie about a child that is a clump of cells. we now have to respond to a bad idea about what marriage is what the right to procreation with respect to marriage entails. is it a right for adults to have children or a right for children to have moms and dads? what direction does this work
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in? that's what i think the long term consequence is. we have to call the decision what it is and protect our rights to live in accordance with the truth and we have to commit ourselves to a long term program of rebuilding a truthful strong marriage culture. that won't be resolved in the next vote of congress. this will be a generational campaign, not that the next vote in congress or next election doesn't matter. they do. this is going to be something that our children and grandchildren will be responding to. >> so you mentioned a couple possible responses to the cultural issues. speaking more broadly and more immediately what are concrete responses that you think can be done near to medium term to respond to this decision to make sure that marriage culture is restored, law is restored.
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>> i will give one that i think is bothand that is a commitment to nominating and confirming judges who have a principled view of the constitution and of the law and have demonstrated willingness to stand up for that view when it's challenging and when they are under fire. because this is something that while obviously this is rebuilding culture, the next president will likely have maybe three supreme court nominations. we saw that last week's decision was a very close decision. this is not the only decision. we saw a series of decisions leading to this. it was lawrence versus texas decision in 2003. this won't be the last one in that series. it is important to have judges in the court that are going to be interpreting the constitution
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and make sure there is a president in place and senators in place who recognize the overarching importance of this issue. whoever is next in the supreme court will be there for decades and have generational impact has a life term and we need to make sure our politicians realize the stakes worth plopping down political capital on because all other issues they are doing. you look at doma. you have a great congress and signed by a president and then later have it undone by a supreme court. so whatever you do in all these other fields the courts ultimately have the final word on it in many ways or the final legal word in our system. >> i guess on the religious freedom front i would add a couple of things that could be done concretely. i think it is important to continue to press for laws that both the federal and the state
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level that will protect the religious liberty of believers both individuals and institutions from the various obvious problems that the decision creates. one is the first amendment defense act which was proposed by senator lee and also proposed in the house. i think that law deserves our support because at least at the federal level it would deal with a number of the issues that we talked about today including tax exemption issue and government contracts and licensing and those sorts of things. a lot of the problems are going to arise at the state level. we have seen the challenges of getting state level religious freedom restoration acts passed. and those would be very helpful if they could get passed. i think at this point it may be more productive depending on the state to get a more narrowly
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targeted law that just deals with the religious liberty fallout of same-sex marriage. so i can envision a whole lot of miniature first amendment defense acts getting passed in the states. and, of course short of that many governors and some attorneys general actually have enough authority that they can mitigate some of the religious freedom problems arising from the decision by an executive order or memorandum to the people that report to them or what not. we saw governor jindal of louisiana do this with executive order that for example, protects clerks and other people in louisiana from having to perform marriages that would conflict with their religion-based conscience. we saw the attorney general in texas issue a similar directive to the people who report to him that we are going to protect the
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religious liberty of the people of texas wherever we can. i have a whole book full of ideas of what we can do at the cultural level. >> available on amazon right now. >> i get a nickel if you purchase it. let me mention three. all will draw parallels. the first is we should conduct rigorous social science into family struckturestructure. what we know is that a child who grows up without a father whether with a single mother, a cohabiting couple, divorced family, all of those family structures produce poorer outcomes for children. we know this beyond a shadow of a doubt for 40 years of consensus. why would it be being raised by two mothers would be the exception? why is it father absence matters
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to the child being raised by cohabiting couple why doesn't it matter to the child being raised by two mothers? that is counter intuitive. i suggest we give the space to conduct rigorous investigations into family structures and let the data speak for themselves in the same way ultrasound science was best friend in pro life movement. the second is we need to find better spokes people in the same way silent no more, women speak for themselves were some of the best spokespersons on the abortion debate i think some children raised by same-sex couples and gay and lesbian people will be some of our best advocates. both groups filed amicus briefs and neither group was acknowledged by justice kennedy. there were passionate letters written. they love their two moms and
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wish they would have had a father. their argument was that redefining marriage institutionalizes missing parents and it is not just a result of human frailty but institutionalizes it. there was a brief filed doug divorced his wife and came out of the closet as a gay man and realized he committed a great injustice. the children needed a mom and a dad. he reconciled with his wife. he makes an argument titled i'm gay and i'm against gay marriage. these are some of the voices i think will be helpful. the third is that science and philosophy are important but they are not the only thing that is important. here beauty and holiness and goodness motivate people more so than philosophers. i speak as someone with a phd in political philosophy. i think unless we live out the
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truth about marriage and bear witness about the truth about marriage our lives will never rebuild a marriage culture. it is important to rebuild the fact that gays and lesbians did not cause the break down of the family. redefining marriage will not do anything to strengthen the family but will likely make it family weaker. i would say the third thing is look what the pro life movement did. it was setting up centers and project rachel having all of these sisters for life, all of these outreached to women in crisis pregnancies. we need better marriage prep programs and better programs to help people both understand and live out marriage in their own lives. >> so we have time for questions.
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there will be microphones on either side. the event is being broadcast. i ask that you identify yourselves and the organization you may represent and keep your questions brief. please make it end with a question mark. >> hi. what about the possibility of the term limits for the supreme court? is that something that could happen? there are people that suggest it and it would certainly open up the idea that we wouldn't have people in the position of power for a whole lifetime? >> that is certainly something raised before. i think it is really interesting idea. it would be challenging to implement it because both sides would be worried about who is president when term limits kick in.
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but i think if you could get a bipartisan consensus it is definitely something to consider. what would worry me about that and other proposals is how we can exert more limitations is i would worry about anything that emboldened the president or senators to say we have this back stop here. we have a check on this. we don't have to pay as much attention to vetting candidates as well because we know they are only there for a certain amount of time. if there were a term limit it would probably be a long one but i think that never can minimize the importance of getting it right the first time and doing everything we can to make sure we have principled judges in place. it is certainly a thought just not something that would require in the short term. just a quick lamenting that kennedy replaced boric.
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if children have a fundamental right to mother and father can you think of legal standing to create basis for suit that a child has a right to a mother and father? just thinking out of the box. >> i could see this. justice kennedy several times in his opinion says that the court's opinion is based on new insights into marriage. i could see a situation in which the court has a different composition, chances are the next president will have up to four seats to fill. three of the justices will be in ' 80s. and if there are new insights into marriage and new insights into the rights of children that could be a possibility for the court to reconsider. i would think the outcome of that would be that we don't know any better than the people so let people decide policy for themselves.
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if he continues doing social science research if they keep speaking out and that gets the attention of litigators and the attention of justices, this isn't the last word in the same way we have seen in the abortion context having ultrasound and new insights has allowed us to have better abortion law. i wouldn't accept this as the final word. i preface my question with a brief quote. be not deceived god is not mocked. and it seems like the government of this world is sort of strengthened by even sowing chaos by confusion over meaning of words that look to regulate more. it's all kind of a lie. i wonder if three of the great lies of activism starting with
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marriage and back and looking at abortion and maybe the nature of money when the supreme court began to imply that we need isn't it even the decisions about credit, ious fueling the whole power in washington that much of the country will want to take back. and the states really arguably can under section 110 disempower washington. and, you know, let truth reign in faith. >> essentially who decides the nature of truth is that a good way to recapitulate. >> in our legal system i think it's best to focus on now that some of the practical things that we can do in the short term. those are theoretical possibilities, i doubt any come to fruition. what we do know is that in the immediate future you know, even looking down to the hope of
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saying this isn't the final word legally, that's a very long-term project. in the short-term there are real and immediate concerns about religious freedom we need to focus our energy on. what are the ways whether it's through executive orders whether it's through legal legislative efforts, to try to bring that back now to allow the room for everyone to have a free understanding of where truth initiates. >> and on that i would just have -- you mentioned redefinition. we're seeing that the obama administration has redefined the free exercise to worship. that has to be something not allowed to continue, not allowed to proceed. the founders wanted to exercise free exercise, freedom to live out your faith monday through sunday. not just sunday morning in the four walls of your chapel. we've seen it be reduced. this is why they sued -- why the owners of hobby bobby had to sue the government because they were saying, no, once you go into
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business you lose your right. they're arguing once you open up a center to care for elderly, you lose your rights. this is why the little sisters of the poor are still in federal court suing the obama administration. they're free to pray however they want to in the chapel but if they want to take care of elderly people they have to pay for abortion causing drugs. that's how ridiculous things are. we can't allow the redefinition of religion and religious liberty. >> we can't allow the -- you can ride a treadmill in your church but that's the extent of your ability to freely exercise your religion. >> over there. >> hi, my name is jennifer kirk. i work for the heritage foundation. i know this is extreme. i'm just curious what your thoughts are in the concept of completely removing all government, federal, state, local involvement in marriage all tax benefits, all anything and allowing it to be purely a
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religious institution as it was a millenia ago. >> i don't think it was ever purely a religious institution. i would question the premise of the question. we've seen political communities have always been recognizing and to a certain extent regulating the marital relationship because it's not purely a private or religious institution. it's not like baptism and bar mitzvah. those really are purely religious personal institutions. the state's in the marriage business because while your church can marry you your church can't marry you or enforce alimony payments or child support payments or settle custody battles. you either have the opportunity of the state setting up an institution to do that at the front end or growing government beyond any imagination by doing each and every one of these cases one by one. so, if you get the state out of the marriage business on the front end, you will simply explode the reach of the state
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on the back end when doing a case-by-case basis of regulating these disputes. much better to have the state recognize an institution and civil society marriage than have the state either redefine it or fail to acknowledge it. >> and let me add one point to that, if i may. there are a lot of people in this country who are not religious, so if you say, marriage is only going to be a religious sacrament, we'll get the government out of it entirely, there will they be be no -- for a majority of the population, there will then be no institution that is encouraging young heterosexual couples to get married either before or even after they have kids. and so i think that would -- that would exacerbate the social problems that we've had with fatherlessness especially. if we said well, we're -- if we said, now the government's just going to throw up its hands and get out of the marriage business all together. >> so, we got a question from
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carolyn online mailed in association of mature american citizens. is constitutional amendment defining marriage between one man and one woman politically feasible or worth while for advocacy groups to pursue. >> it would be wonderful if it could get passed but it's -- >> the politics of it i guess we'll see. but at this point at least with the current makeup of judges, that's what it would take to change things. >> or even amendment -- an amendment like the proposed ted cruz amendment, which would leave the decision to the states. that would also be a big improvement over the status quo. >> again it's a long process getting constitutional amendment passed so it's a longer term strategy. >> back there. way at the back. >> i'm peggy with faith and action. when the decision came down our phones were flooded with pastors in a panic. can you kind of really state
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exactly what happens with pastors? they use the term they're going to have to be forced to marry things as couples or where are they with this with their licenses to marriage through the church or whether you're a pastor that works for nonprofit and you perform marriages? >> i think the -- can i answer that? i think the first amendment quite clearly forces someone to marry a couple he or she doesn't want to marry. so, i've never really viewed that as a substantial risk. img i think the other risk we talked about earlier are serious risks but i think that is probably not a serious risk. >> i'm a student at georgetown university. i'm wondering if you guys can speak to this pattern that we've seen with the courts redefining terms. is there a way we can stop this
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from happening in the future in another argument? >> good luck. i think the way we can do that is get judges who have a strong commitment to be faithful to the constitution of the laws. we notice it in a case like this one, wow this is a term they totally redefined. this is not a unique case because it's a common problem within the law that either someone will say this is the standard i'm applying. i'm applying for example, rational basis. then they basically define -- define it and use it in a different way than it's been defined in every court case previously. so this is really a fundamental problem of judicial philosophy and judicial integrity that we need to address. we saw it again the discussion of -- most important thing we can do for a lot of issues in our culture that because this decision took place in the
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courts rather than in the public sphere, it's the kind of thing we got a give and take at the compromise, we have to protect religious freedom. it is still subject to interpretation by the same judges who are engaging in some of these questionable interpretive linguistic practices. so, i think we need to -- we can never underestimate the importance of judges. >> final question? >> ron cruz. there's already been a call for one activist for all chaplains who hold a traditional view of marriage to resign their commission because they're no longer able to support the constitution as defined by this supreme court but that would apply only to chaplains but to all military officers who would hold a traditional view. is that a concern? that military officers should resign from the military if they hold a view of natural marriage?
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>> on one level the constitution doesn't actually say that. if the constitution actually said that all four dissenters would have to promptly resign. they've taken the same oath. i think that's not something -- i hope we don't see a massive exdouseex exodus of our military leaders. >> it's to the constitution not the supreme court's interpretation of it. >> and that should be the final word. thank you very much, panelists. this conclusion our program. please join us for lunch in the hall afterwards. thank you very much.
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