Transcripts For CSPAN3 Michigan Same-Sex Marriage Oral Argument 20141009

I am not a member of the nsa team and i do not apologize for that to anyone. Thank you for your time and i look forward to the question and answer. Over the next few hours or cspan 3, well look at federal cases in the National Supreme court. Up next, oral arguments from a lawsuit transmissioning michigans bang ban on gay marriages. After that, oral argument and American Civil Liberties union versus clapper on the National Security agencys collection of americans phone records. And the conversation on cameras and the court, and other issues of Supreme Court transparency, and later, a discussion on judicial independence. On monday, the Supreme Court decided not the hear michigan was not among those states so its ban on samesex marriage was not affected. Up next on cspan 3, the oral argument on michigans ban on gay marriage. Whether a District Court can disregard a directly namely baker versus nelson, and the bigger picture, its about what federal rights in the creation of a new federal constitutional right if that should be done through the amendment process or by the courts on the subsequent due process doctrine. So theres Common Ground on this case, but the u. S. Constitution doesnt directly address samesex marriage, seems to turn to the subject of due process. Is whether or not the right thats being asserted is objectively, deeply rooted in this nations history and tradition. And you cant conceive of liberty and just without it and samesex marriage does not have that necessary historical deep root. What do you say about the fact that one could have said the same thing about lawrence . Well, respect to lawrence, the Lawrence Court has not repeatedlied apply the analysis and recognized the continuing way theyre supposed to analyze subsequent due process. This court has continued to apply lucksburg has recognized that thats not the relevant standard. Lawrence doesnt override or reverse all the cases before it, it takes the same test simply by not mentioning it, so this court is still bound by it and this courts precedent applying lawrence. What about baker, you mentioned that early on, its not a very long opinion, i think you would acknowledge. A lot has happened since then, i think you would also acknowledge that. How do we deal with it . I think this court is bound, the length of it doesnt matter. The United States Supreme Court has repeatedly said that summary decisions that it makes are binding on the lower courts, there are marriage determinations and this court has reiterated that, such as the spaum summary dispositions are still binding unless reversed by the United States Supreme Court. So i think that theres a little more give and take in it than that. The Doctrinal Developments, the doctrine that has grown out of other Supreme Court cases, were still dealing with some doctrinal elements in this area of the law, are we not . Two answers to that, first of all the Doctrinal Developments that was mentioned in hicks, hicks also says that courts are supposed to follow the Supreme Courts decisions, until it overrules them and sweubsequento that, this court has also made this point, if a decision of the Supreme Court appears to rest on a lot of cases and it has been overruled, its up to the Supreme Court to override it. But i disagree on the Doctrinal Developments point too. For example, roamer doesnt do anything to undermine the fundamental rights aspect of baker versus nelson, both questions were presented in baker versus nelson, whether there was a drew process right and also there was a you dont think lawrence, a ruling that came out a few years before that indicates a Doctrinal Development . I think that shows a Doctrinal Development in the area of the right to privacy, i dont know if that necessarily shows a Doctrinal Development in the area of the fundamental right to marry, which is a public recognition, its not a right to privacy. So i think lawrence decided on a different subsequent due process ground, so it doesnt have anything to say about the fundamental right to marry. What about the loving case suggests that the policy and the laws against massagenous it was about the fact that there was racial violation of the law with the Supreme Court in loving recognized. So the fact is racial discrimination. What it was, was it not, the law across a huge swathe of Southern States at the time. That was a vote by the people of many states against the possibility of interracial marriage. And the language in loving says the right to choose whom to marry is a fundamental right. To the extent that theres an attempt to the Supreme Court rejected that express analogy in the baker case, just as a matter of what has the Supreme Court done so what you want us to do is take an 11word opinion and knock out all the efforts to, all the opinions that have come out involving samesex marriage in the last ten years, 11 years . It hasnt been that many. The First Circuit recognized that they were bound by baker, there were other courts who recognized they were bound by baker. Thats just a question of judicial hierarchy. If the Supreme Court wanted to say that the freedom to choose whom to marry was not limited to someone of the opposite sex, when they had the opportunity to do that and they didnt do that, that question was direct lly presented to them. So that shows theres a difference between race, which does not go to the heart of what marriage is. You would have to concede that in terms of what the electorate wanted, the loving decision went against what the electorate wanted in much of the south when it was announced . I think it did not. When you talk about what the electorate wanted, the electorate wanted to end racial discrimination. The tennessee constitution provided, quote, the intermarriage of white persons with negros, or persons of mixed blood descended from a negro to the third generalatiration included. In march of 1978, the tennessee electorate was asked to repeal that provision in the constitution and they did so, but they did so by a mar jing of only 89,0,000 votes out of half million. I think it did also choose racial discrimination, that just shows that people can make decent and rational decisions, it didnt moon that the history of this court with respect to the issue here, which is samesex marriage, and if you look at windsor, it is very instructive, the historical analysis, section 3 of windsor talks about the history and tradition of marriage. And the history and tradition of samesex marriage. It recognizes only in recent years that that was even deem possible. Thats true, but if we take this case to be about the right to marry, and not the right to marry a person of the same sex, isnt whats going to happen around the country pretty clear, and what is happening pretty clear . If what youre saying is are there trends by people to change the law what is the issue, is the issue right to marry here, or are we dealing with the right to marry, or are we dealing with Something Like, oh, what were those cases, the right of inmates to marry, the right of deadbeat dads to marry, i think it was judith kay that said fundi fundamental rights are fundamental rights. Thats quite different from saying theres a deep so subsequent due process, those cases involve limitations that were not deeply rooted, they were not inherent to what marriage represents through history. The opinion said that the marriage between a man and a woman has for centuries been recognized as fundingmental. The fact that marriage has been defined as between a man and a woman, that was true to the definition of its role and function throughout the history of civilization. Marriage is always about changes in social mores and maybe originally marriage was encouraging appropriations, channeling possibilities, but marriage is more about love, affection and commitment, and when you look at it that way, its hard to rationalize not being a fundamental right, that doesnt answer the question that really was the holding in all four of these cases, that it doesnt even survive rational basis, what do you do about the difficulty of if you think about marriage, just through that lens, love, affection and commitment, it does start to get a little difficult to see the difference between the one Group Eligible and the other group not. I agree when you focus on fundamental rights history is the focus, and so the question is, i guess the preliminary starting question for the rational base increase is why is a state interested in marriage in the first place . Why is a state interested in emotional connections between people . We discussed this in our brief. The state doesnt have an interest in regulating friendships, doesnt regulate how many people can be in a friendship or huow long the friendship has to exist. The reason the state has interest in marriage, is because marriage is linked to children, the bringing of new children into society and how is society going the make sure that theyre cared for. So its rational for the state to have an interest in promoting marriage so it will be more likely that a child will be have both a mother and a father and will have the benefits of having both a mother and a father. Remember in the trial below, the plaintiffs said conceded that there are differences between mothering and fathering and there are differences between each one. But what is the basis of excluding everybody else. It doesnt interfere with the procreation of children just because youve got two people of the samesex marrying, and in some of those marriages, at least one of the partners is able to procreate. I have free marriage responses to that. But i have to first appointment out that under the rational standard of review, thats flipping the question, the robeson case leaves this out very clearly, it points out that the question for rational basis review is whether the state interest thats being put forward is if its being advanced by including a first group, or including a second group that does not advance that interest is not irrational, does not extend benefits, so that case again was about veterans benefits, the question is state is having people to fight in the Armed Services and the benefits are extended to benefits and encouraged people to join the military, and the question was through Conscientious Objectors, are they entitled to these benefits and that would not advance the states interest in making it more likely for people to fight in the nations services. So you would say that what were trying to do confining marriage to opposite sex partners is to encourage procreation . I think that is one of the states interests is making sure that procreation, for one, occurs in longterm committed relationships between opposite sex couples where procreation isnt that a little hypocritical then to to allow people to marry who cant procreate but not allow samesex couples to marry . Not at all, your honor, because the state would have the ability to say to the not samesex couple, are you going to procreate, that, the definition of marriage has always recognized the opposite sex couples are allowed to marry. So you wouldnt even get that perfection question, right . You would acknowledge that there are benefits, important benefits to the state beyond procreation, i should think, the benefits attendant, and the benefits and responsibilities attendant to marriage seem to bear on the question we are adjusting here, is whether or not those matter to a state that says, as virginia did, we have no interest in licensing adult love. But there are these benefits and responsibilities that would be important for the state, taxes, somewhat consistency among the members of the married members folks in marriages all throughout the state all would have the same responsibility, those sort of thing. I think there would be other benefits from people the question here is what its at least a rational state interest to try to make it more likely that every child can have both a mother and a father or whether its at least a rational state interest to try to recognize that as a biological reality, opposite sex couples can have unplanned pregnancies, whereas samesex couples cant, so extending marriage to opposite sex couples addresses that concern and offering to samesex couples doesnt. So theres at least a rational basis, that is also necessary, there are other basises for marriage, but that doesnt undermine that its rational for the state to be promoting these benefits. As everyone acknowledges, recent cases have not assigned pure rational basis review. The we know that from windsor, the subject was difference in rational basis review. But windsorexcuse me, roamer starts out by talking about the conventional inquiry of rational base review and talks about whether theres a bare desire to harm. So windsor does the same thing, when were requiring a bare desire to harm, in order to set aside a rational basises. The presumption should be what i started out as, the voters are rational. Thats what the rational basis test is if theres a conceivable basis, thats a reason to uphold the law. And this is a democracy promoting rule, it allows the people to make the rules, this is something that the people could decide to change tomorrow, by amending the federal constitution. Its not that the court is the only recourse for creating new rights. In fact the court shouldnt be creating new rights. The third basis is the fact that theres uncertainty in this area, its such a new thing that its too early to tell. The plaintiffs experts conceded that trying to study children that are raised in a samesex household there hasnt been a single comprehensive study thats been done of children rationally raised in a samesex marriage. So a rational person, even somebody who would vote in the future for a samesex marriage, a rational person might think its too early to tell, amend its at least rational to wait and see. So theres a number of different rational basises. You were talking about rational basis review, if you get to strict scrutiny or intermedia scrutiny through one path or the other, would you concede the state has a problem . No, your honor, it would depend on the intermediate scrutiny under the protection clause, setting aside the fact that this court has three press didnts even if those werent there, under intermediate scrutiny, biological differences between men and women can make a difference. The biological ins case, a case in which mothers and fathers had children from outside the United States, it required men to prove to a higher level or degree that they were the father and required women to prove when they were brought back to the u. S. So its possible to survive under intermediate scrutiny. And the other question is under the equal protection law, the law is neutral and the law also has no intent to harm. That District Court case recognized that it was impossible to say the only thing thats left is the spirit impact. And under washington versus davis how is it defining marriage as including one group but not another . Defining marriage as between a man and a woman. Especially neutral gender wise, i agree with that, but i dont understand why its basically i think the answer would be that it doesnt prohibit them from marrying, either. And so its theres no evidence this was done to try to exclude them. The evidence is that it was simply continuing the definition of it throughout michigans history. So the only reason thats the answer. So can i ask you, you mentioned the sixth circuit. Precedence. I assume youre talking about davis . Davis and Quality Foundation, yes, your honor. The problem with the Quality Foundation is, as i read it, it depended on, its relied upon the Supreme Courts bowers decision, which was reversed in lawrence. So i wonder. The equation foundation only mentioned recent history, and it was under roamer. So it doesnt rely on bauer. The reliance doesnt talk about bauer. And this court even after lawrence has continued to apply the same i have to tell you, we are sometimes perfectly capable of blindly applying cases. Im not sure i would be willing to say that we did in davis. But that has happened. So, you know, if you were to lose under either one possibility is theres a another possibility is theres heightened review, which makes life very difficult for justifying the law. Were there practical implementation problems . I mean, you know, with brown, you could say the only implementation problem is resistance. But it was pretty easy rule to implement, right . And i guess what im interested in from the states perspective, is this there may be controversy, there may be resistance, but why is it difficult as a matter of implementation to implement this new rule . So if the outcome were that samesex marriage was unconstitutional, it would be hard for the state what problems result . I think if youre talking about what possible harms might come from changing what implementation problems is it difficult to adjust state laws on marriage, divorce, anything else . Or is it really Pretty Simple . You just now include this new group it would have widespread impacts. Im not quite sure how all of those would play out. What would they be . Thats the question, what would they be . As far as changing all the laws about marriage. And in the big picture, one of the things that could happen if it were changed, and this is something that there would be no institution in michigan would say its important to have both a mother and a father. So in terms of societal impact, i think there might be harms such as to there would be nothing to say that its important for fathers to be there and mothers to be there. Do you honestly think thats whats happened in the states where samesex marriage is now valid . Its too early to tell, your honor. Its only been 10 years since the first state passed it. Now were just something beyond 25 of the jurisdictions in the country, and probably more than that in terms of, maybe more than that in terms of population, as a whole. And it doesnt look like the sky has fall on ien in. The point is its too early to tell, when youre changing a fundamental element of society, you cant see the possible outcome on children. I thought there was a lot of evidence offered at the trial in michigan that indicated in fact that the outcome on children was reasonably benign, given what they know at this point. And youre going to say, i see it coming, its too early to tell im going to say that, i think thats a valid point, your honor. But then the people who tried to come in on your side of the trl trial and present all these terrible impacts that they said this would have, i mean there was even a texas professor, where they had a disclaimer on the university of texas website saying dont believe anything this man says. Your honor, the fact that one particular social scientist i think the picture the big picture is its simply this is something rational people could agree with, its a point that Justice Alito could recognize, that its too early for social scientists or philosophers to be able to tell. Isnt it your point, mr. Lindstrom, that its disparaging the votes of citizens of michigan, is that i should think thats i definitely think that it plays into the consideration very heavily. To say that for example, this is under rational basis review, to say that michigan voters didnt have among them, out of all 2. 7 million, a single rational basis and its just not possible to have a person of good will disagree. There were two people from ohio, might be able to accept that argument. Fair enough. So i think the numbers are in ohio are up. Your red light is on. Dates of the last time the people of michigan voted was Something Like 2020 10 years ago. Thats why people may decide its unconstitutional. For 50 years the Supreme Court has recognize that the freedom of personal choice in matters of marriage and family life are liberties protect by due process. We find 34 this case that no matter what scrutiny the court provides, the state cant prevail here. The michigan marriage amendment is unconstitutional. A starting disagreement between the parties as the court has already observed, is an articulation of the right itself, its the right to marry i realize before windsor, the first and Second Circuit said that baker is binding, post wind sor sorry, theres no majority recognizing that, i have to say, i find that a very serious issue, the thing thats coming on is you, oddly enough, we treat some reversals as binding precedent no less than a fully written opinion. Everyone understands thats true, theres this language that judge dat try pointed out. It then later says, follow this until i tell you otherwise. But even when you see one line of case crumbling, lower courts are not able to an tis pat forly jufbd just as a matter of hierarchy, arent we stuck with baker . This is a one line summary affirmness we believe that romer, windser, lawrence constitution that Doctrinal Development. When you said Doctrinal Development, is it fair to paraphrase that to mean reasoning thats inseptembtent lines of development. Theres evolution of these concepts, evolution of due process concepts, evolution of that is increasingly inconsistent with baker, thats your point, right . Its totally inconsistent with baker. Okay, but isnt that agastini . Agastini is distinguishable, agastini was a full opinion that had you dont know what the rationale for the court is, you dont know what the court based its ruling on, and thats whats distinguishable in this type of ruling. Thats why the Supreme Court is very casual about ignoring them, but i didnt think that rule applied to the lower courts. The Second Circuit in league of women voters of Nassau County they can be informed indirectly by Doctrinal Developments, so they held or or what we would say is here are the Doctrinal Developments, this court can make this call despite baker, and every court in the country has, you know, ruled this way on baker. I wasnt sure on the first and Second Circuit, before windsor. Windsor is at least a reck nix of the samesex marriage case, so its the greatest, i would argue, Doctrinal Development case. Lawrence and romer were Doctrinal Developments too, i think you rely on those cases. We do. And that didnt alter their view of how to look at this . Didnt alter the Second Circuits review before windsor, one of those cases was windsor itself. I understand that, the court in perry let me do it this way, the Supreme Court had this issue before it. There was a discussion on the record with i believe justice ginsberg, talking about Doctrinal Development and the court didnt think anything of that argument. Now granted, they decided that case based upon standing, but you know, the court doesnt think much about that, it didnt even mention baker, and the Court Allowed californias ban to be struck down. It would have been pretty strange for windsor to say anything about baker given that the companion case to windsor is holingsworth. I understand that. We are not asking to redefine the marriages relation shims. Were only asking for samesex couples to marry. When youre talking about getting that right, thats what your clients want, the state to license their relationship . Thats correct, and the right to marry, yes. Okay, well the import there is Something Different than what i thought you were talking about. You want them to recognize it and the state to license it . We do. Okay. The central attribute of marriage is the freedom to marry the person of your own choice. The court must make a description of the fundamental right asserted but theres a long history of decisions defining that right, loving versus virginia take the loving point. I just thats a 57 decision, so in 1968 say a gay caucasian man and a gay africanamerican man go to virginia to speak a license to marry, do you really think loving controls that case in 1968 . Well, i think the court by citing loving, by tradition thinks theres no difference between an interracial marriage or a samesex marriage. I think its going in that direction. Thats a difference from saying what loving stands for. Isnt my question about what happened in 1968 pretty obvious because we had baker in 73. I think that lawrence that Justice Kennedy tells us something about how the court may be viewing these cases. And i think what hes saying, and i think you see it in law r lawrence and we sigh it in windsor, we now understand that these are now going to be framed as discriminatory, we didnt know anything about samesex couples because of they were hiding because their conduct was criminalized. So i think, you know torqu, to would the argument have held water back in 1967, it was a different time. I know that theres many significant benefits, some of them monetary, that get extended to samesex couples if you win here and thats significant. But i have to believe based on a brief that the most important thing is respecting dignity and having the state recognize these marriages the same way heterosexual marriages are recognized. And if the key elements here, its just something im missing. But i would have thought that the best way to get respect and dignity is through the democratic process, forcing ones neighbors, coemployees, friends, to recognize that these marriages or the status deserved the same respect as the status in a heterosexual couple. Its just funny to me why the democratic process which seems to be going pretty well, nothing happens as quickly as we might like. But im just curious how you react to that point . The michigan marriage amendment gutted the democratic process in michigan. Voters can no longer appeal to their legislators. Secondly, the usual deference to the legislative process evaporates if theres a reason to refer antipathy. Theres plenty of reason to infer antipathy here. You have historic discrimination, persecution, criminalization of samesex conduct throughout history. Michigan voters have put another initiative were put in front of them, certainly it would be a different vote, and it might well be a different outcome. The practicality is the michigan voters in order to get this before them, you have to come up with signatures of 10 of the total number of voters in the last election. Secondly, dont you think youre more likely to change hearts and minds through the democratic process . Fundamental constitutional rightless may not be submitted to popular vote, they depend on the outcome of whole elections. My question is assuming you can win on this, my question is, why do you want this route . It may be the better route for your client and youre lawyer, you have to keep the focus on that. Its not 100 obvious to me its the better route for the bay rig gay rights community, thats not at all obvious to me. The government made that same argument, they said, just wait for the passage of the era, that was in 1973, we would still be waiting now, theres injury, the band brings injury here, marriage provides unparalleled social legal mutual responsibility, dignity, it is security, it is a status, it is stability. But the plaintiffs losses go well beyond the depravation of the right to marry. Michigans laws are pervasively discriminatory to samesex couples. Theyre destabilizing these families. April devore is a legal stranger to her own skon and the it also brings the loss of economic resources, the ban brings psychological gyrery. We had the doctor explain that no matter how confident, how devoted, how caring that second parent is from the childs perspecti perspective, some children will suffer from a seemingly nonperm nemt relationship with the second parent. These bans humiliate families, they deval samesex couple the ban brings shame to these children. A prek459 special needs children, hard to place children, foster children, they took them in. These arguments seem really powerful if you get heightened scrutiny, and maybe dispositive. But do they suffice such a rational basis review . Under rational basis, we think the marriage amendment flunks the national basis, it requires a connection between the states articulated purpose and the law itself. First of all, the motherfather rationale, the ban as the judge indicated is not increasing those motherfather families. Its not deterring samesex couples from marrying, from having children, from raising them responsibly. But i mean rational basis review allows under collusive and overinclusive laws. Thats really the whole point of it, that you can the legislature can address a problem one step at a time. And the fact that its over inclusive or underinclusive, thats what the court means when it means improve denlt decisions will eventually be corrected through the democratic process. It seems like thats your coin here, its underinclusive, if you care about children, you should care about the children in these marriages. If you care about love and affection, you should care about these couples. Theyre just as capable of love and affection as the others. But thats just not how review of National Cases striking down laws that are, quote, riddles striking down laws suffering from that mystic classification that identifies reported state interests. Those are unprecedented laws. Windsor and roamer was unprecedented lawings and if theres one thing we know in this case, this definition for better or worse, is not unprecedented. Well, i think that to the extent that the court confers this a onefactor test now, lets just assume for purposes of argument that the test is whether its i dont agree that it is a onefactor test. What i see the court doing is looking at these laws in full context, a number of factors, using a more totality of the circumstances aapproach, it matters that these are intensely personal rights as opposed to the dance versus brady, beach it matters that this was a constitutional amendment and ill distinguish that in a moment. In one of those repsan age discrimination case, its a very personal right, its saying that Police Officers have to retire at age 50 and theres a correlation between age and physical fitness. Of course thats a ridiculous law in terms of overor under collusiveness, because you have 50yearold triathlons. But the court still upheld the law and im sure it was deeply offense to 50yearold, 51yearold Police Officers who were more fit than their 40yearold colleagues. But that just gives you a sense of how tough it is to get through rational basis review, or overcome it. The rational basis standard is in the a toothless one. Social security to some illegitimate children, not others. Contraceptives to married but not unmarried persons, courts call that in rational basis review, underinclusion. In moreno, only hippies were denied food stamps. All of those were rational basis cases, johnson versus roberson shows that the state only needs to show that the inclusion of the excluded group shows a misrepresentation of the state. The court found that the line drawn there, rationally distinguished between the two groups, that there was good reasons why Conscientious Objectors could get veteran the court ruled that the groups were not similarly situated in respect to those benefits. The purported justification for the ordinance made no sense in how the law treated other similarly situated in important respects. Heres the problem that we have, with the biology of the rationale. In michigan adevelopmentive parents have the same legal rights as so the ban doesnt logically further any of those ties. Remember, cases are struck down under rational basis that are riddled with exceptions. So the ban doesnt logically fit that rationale. Timed appropriation to marriage. Another disconnect. People can marry without having children, and people can have children without marrying. The equal protection constitutional law doctrine distinguishes between marriage and procreation. In griswald, a contraception case, the court found that married persons have a constitutional right not to have children. In skinner, as far back as 1942, habitual criminals cant be subjected to forciblesterization. What about the problem with unintended pregnancies . With unintended pregnancies, theres e ee theres another disconnect. Again, its the same problem, with procreation, the ban doesnt do anything to disincenti disincentivize marriage gives them that already. So this idea of accidental procreation its really a nonrationale because theres a disconnect there, between the purported purpose purpose and the classification or the law that was in place. The right to procreate is clearly independent of the right to marry, Justice Scalia said that in lawrence. And the bottom line is while many people within marriages do in fact procreate, courts do not require procreation as a constitutional right. The state is now argue iing tha the facts will matter. That the voters must have believed that the motherfather families ay s aries are prefera. That claim is based upon the irrational speculation, its based on disproven irrational speculation. Parents are important as people. Two parents bring double the resources t parentchild relationship matters most. The relationship between two parents matters, and please note its in the District Court t state fully engaged in this trial process. They offered expert trial testimony on the motherfather rationale on the biological tie rationale. There was a question about pacing, which seems to me to be at the heart of this, at least in one way of looking at it. A book that said in 1985, 25 of americans knew someone who was gay. By the year 2000, it was 74 of americans knew somebody who was gave. And when you see that statistic, you think that social science statistics had nothing to do with this, all of this had to do with the concept of knowing they can have great relationships, be great parents and so forth. And whats a little odd to me about the plaintiffs positions in these cases, is it doesnt show much tolerance for democracys sometimes being a little slower than we would like. I mean we have columbia, one way or another now recognizing gay marriage. And we have a lot of other states that i suspect are pretty close. And some other states that will probably take a little longer. But the change doesnt have to do with social science. The change has to do with people knowing one another and seeing theres no reason for these distinctions. And its just odd to me that, you know, the Supreme Court chose not to deal with this 62 years ago. Thats something of a pacing decision. Its stayed its hand. It stayed all these decisions. Its something of a pacing decision as to when the right is recognized. And i guess its just odd to me that state legislatures dont get a little bit of the benefit of the doubt in terms of when the pacing is right for them. Again, in michigan it doesnt matter what the legislators do anymore. Its a constitutional ban. I think four of the states did this initiatives. In other words, four of the states ruled came out the right way from your clients perspective from initiatives. So initiatives are just as effective as legislation on this point. Ours would have to be repealed. We talked about that already. But in addition, judge freedman found that the constitution is for the hearing now. This court doesnt have the luxury of dodging a constitutional dodging a constitutional challenge. And i understand that the court in perry didnt decide the ultimate question. The court looks to be telegraphing in windsor in terms of some dock ternl change. If the court wiz intending on telegraphing it works. 20straight decisions where bands have been struck down. The constitution is for the here and now. Sometimes the federal courts wait until theres little bit more of a majority states. So all you have are outliers. Thats when the Supreme Court steps in. Well, i dont know about numbers and i dont know how many were in line when the court decided loving. But we are the flyover states. We are tennessee, michigan, texas and ohio. And nothing has been happening to help gay and lesbian people for decades. And on the coasts, things have worked and thats wonderful. Cincinnati charter was repealed. Thats one urban area. I can tell you in my state, nothing is happening to help gay people. In terms of the science you talked about that. The science is not nasent. This is a consensus born of 30 years of research on same sex parenting. 50 years of research on child development. And we learn from the states own expert that the government in large universities have stopped funding in this area on this topic because of the social science consensus. The wait and see approach is not itself a rational basis. Its not even a reason at all. Theres another invidious underinclusion. No other group in society has to pass a parenting competency test before theyre allowed to marry. There are groups of parents in society that we know tend to have children with poorer outcomes on average. Parents who have low incomes, parents with lower educational levels, parents who marry, get children, get divorced want to marry again. Theres no competency test for these parents but we dont bar them from marrying nor do we bar them from having children. An argument has been raised that a decision striking down the ban would intrude upon religious freedoms. Judgment for the plaintiffs will not require any change for religious institutions. They would be free to practice their sack rimts, their rituals, their traditions as they see fit. And just like the 10th circuit in the kitchen case, this court can specify that no religious cler gi will be required to sol miez of his or her own religious beliefs. Religious conflict is not a basis for denying fundamental rights if and when the case is presented to this Court Alleging a religious conflict the court would have to balance competing Constitutional Rights the way it always has. Again, mar bury versus madison requires the court to do. You would look at the higher archiof rights. The level of intrusion is great and the court would render a decision. Weve also alleged that intermediate scrutiny applies here because plaintiffs as gay and lesbian persons qualify for kwauzsy suspect class status. We renew that argument here and defer to our brief and wonderful brief of the constitutional law professors that scrutiny would apply here based upon quasi suspect class. Just briefly, we believe that eQuality Foundation can be revisited by the panel. It does not require a decision because this was theres an inconsistent decision, eQuality Foundation was, inconsistent with the Supreme Court that requires modification. The inconsistent decision we believed that the court it either could be lawrence or clee burn. The court has an obligation or did and does now to apply the clee born factors and the court clearly did not apply the clee born factors. Davis and scar bro didnt have to address really the standard of scrutiny because, you know, they decided for the plaintiffs on other grounds. The majority in lawrence through Justice Kennedy referring to the authors of the equal protection clause and due process clause wrote that they knew that, quote, times can blind us to certain truths. And later generations can see that laws once thought necessary and proper serve, in fact, only to oppress. In our case as well, we should remember that over the course of history on occasion we as a society have lost our footing. And our humanity. And eventually we right ourselves most often through the federal courts. The United States constitution gives us a backbone and a load star in an everchanging society. It was written for all citizens, for all time. Its simple. Its genius. Its dynamic and most of all its humane. It can and must be interpreted to acknowledge a changing society. And an emerging recognition that some laws do discriminate against the marginalized, the unpopular and in this case the most vulnerable members of our society. We know better now. Theres no reason to treat people this way. We ask that you affirm. Thank you, ms. Stanyar. Mr. Lindstrom has some rebuttal . Just a few quick points, you know. Our society has a mechanism for change. Thats the amendment process, substantive due process. Its not a mechanism for change. Thats a mechanism for preserving things that are deeply rooted in history. Theres an amendment process thats available at the federal and state level and thats the state for example, the state level, there were six things on the ballot in 2012 through the initiative process. Its quite common in michigan. There were six different measures. And that goes to the point that it is the state that has conferred the dignity that was discussed in windsor. Windsor repeatedly in discussing the dignity talked about it being the dignity conferred about the state and goes back to the point about democracy. They confer that dignity by voting for it. The right process is not through the courts but through the people. For example, in maine, maine went one way in 2009 legislation pased a law recognizing samesex marriage. People reversed course. So democracy can i ask mr. Lindstrom do you have any idea how long it would have taken in the south . What a shock that was down there . Well, loving, again, violated the equal protection clause itself because it violated imposed invidious racial discrimination. All right. Well you told me that before. Is the point to be made that the reason that there hasnt been more in the way of analysis of discrimination against gay and lesbian people is because up until just 11 years ago their conduct could land them in prison in many places. So, you know, you cant say, well its not deeply rooted that they have a right to marry because aside from the right to marry, they might have had the sheriff in the hall outside their bedroom trying to find out what they were doing in privacy in their own homes. Well, if the question i think that would be a question about whether its the right to marry or the right to samesex marriage. And i think windsor answers that question. Windsor talks about the history of samesex marriage and recognizes thats not deeply rooted. Again, this court has repeatedly because the conduct at the basis of samesex marriage was until 2003 potentially criminal. Does that not make any difference at all . And then the Supreme Court told us that, in fact, it shouldnt be considered criminal. Thats where the almost ive heard people refer to it as a tsunami of action has occurred. And it was back in that beginning of that period when we had the michigan marriage amendment. Was it not . I mean, i thought we cleared that up. Michigan occurred in 2004. Thats correct, your honor. But, again, lawrence was about substantive due right to privacy. Its not about the publics recognition it was about the fact that that conduct could no longer be considered a crime. And it could no longer jeopardize somebody who engaged in that conduct with the prospect of going to prison