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tv   Oral Arguments on Same Sex Marriage Recognition Question  CSPAN  May 3, 2015 12:00pm-1:01pm EDT

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scalia: did justice breyer joined that? my lord! justice breyer: i is of privacy does not have this case in front of him. [laughter] mr. bursch: i do want to wrap up. he's obviously emotional issues. the state, michigan specifically, has no animus and is not planned to take away dignity from anyone. we respect all parents and hope that they love their children. this court taking this important issue away from the people will have dramatic impacts on the democratic process and we hope that you will affirm. justice kagan: i want to say that the idea that the -- ms. bonauto: adults can choose to
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marry at 70 years old or 90 years old because of their love for one another. we agree that restrictions are in fact based on gender classification. based on what is the proper relationship for a real man or a woman. that is obviously not with someone of same-sex. michigan has placed vulnerable children with these petitioners who have nurtured them to a healthy childhood. did michigan let other adoptive parents of other sex is merry? michigan is drawing a line because it does not approve of the adults relationship, no matter what the protestations that follow. next we hear it is not disrespectful because it is
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based on biology. i have to say, one casualty is a view of what is marriage. the state's entire premise here is that a same-sex couples -- if same-sex couples marry then non-same-sex couples want. the idea also the other people who raise children and is good for them is something that i hope policymakers will support. adult relationships, at the foundation are different adult relations hearing telling same-sex couples who have committed to one another and committed to raising children that they can cannot is stigmatizing. the only way i can understand michigan's points about procreation and biology, and so on, is when i look at page 31 of
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their brief and they say that what they care about is people who have children together staying together, and providing a long-term stable situation for their children. that interest of lies full force in this context. by denying marriage to same-sex couples, you are denying not only protection for the adults, which is independently important, you are denying those protections and that security that would come from having married parents. with that, thank you. >> thank you, counsel. >> more from the supreme court now with oral arguments on whether states must recognize same-sex marriages performed legally and other states. this is 50 minutes. >> we will now here arguments on
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the second question presented in this case. mr. driemeier: it is of fundamental importance to the couples and their children. states should not be allowed to effectively dissolve that marriage without a sufficiently important justification to do so. these petitioners have built their lives around their marriages, including bringing children into their families just as opposite-sex couples have done. but the nonrecognition laws undermine the stability of these families, though the states purport to support just such stability. justice alito: i was somewhat surprised by the arguments you made in your brief because they are largely a repetition of the
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arguments that we just heard with respect to question 1. i thought the point of question 2 was whether there would be a an obligation to recognize a same-sex marriage entered into in another state where that is lawful even if the state itself, constitutionally, does not recognize same-sex marriage. i thought that's the question in question 2. am i wrong? mr. hallward-driemeier: it is the question in question 2, and this court's decisions establish that there is not only a right to be married, but a right to remain married, that there is a protected liberty interest in the status of one's marriage once it has been established under law. justice scalia: even if that marriage is not lawful under the receiving state's law, right? mr. hallward-driemeier: that's right. there is definitely -- justice scalia: is that right? no matter i mean, suppose well let's say someone gets married
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in a country that permits polygamy. does a state have to acknowledge that marriage? mr. hallward-driemeier: well, of course, the state could assert justifications for not doing so, and i think there would be justifications. mr. hallward-driemeier: well no, your honor. i think that the justification would be that the state doesn't have such an institution. the a polygamous relationship would raise all kinds of questions that the state's marriage laws don't address. justice scalia: well, it would be the same argument. we don't have such an institution. our marriage in this state which we constitutionally can have because the second question assumes that the first question comes out the way the united states does not want it to come out, the state says we only have the institution of heterosexual marriage. we don't have the institution of same-sex marriage. mr. hallward-driemeier: no. the institution is the institution of marriage, and the
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-- justice scalia: well, you're saying that, but the state doesn't. the state says the only institution we have is heterosexual marriage. mr. hallward-driemeier: the point i'm making, your honor, i think is demonstrated by what has happened in those states where, by court order, states have had to permit same-sex couples to marry. all that has happened under their laws is that they have had to remove gender-specific language and substitute it with gender-neutral language. i was going to say that that plural relationships raise all manner of questions that are not addressed by this state's current marriage laws. justice alito: what if it's not a plural relationship? what if one state says that individuals can marry at the age of puberty? so a 12-year-old female can marry. would another state be obligated to recognize that marriage? mr. hallward-driemeier: i think probably not. but the state would have, in that instance, a sufficiently important interest in protecting the true consent of the married
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person. and most states don't recognize minors' ability to consent, certainly not to something that is as important as marriage. but what we see, in fact, is that, quite in contrast to the nonrecognition laws at issue here, the states do recognize the marriages of person who, by age, would not have been able to marry within their own states. that is the longstanding practice of all of the states, precisely because of the abomination, as it was referred to in the old treatises, of the notion that a persons could have a different marital state in some jurisdictions than others. justice sotomayor: sir, how about the consanguinity situation? virtually all states would recognize cousins through marriage getting married, but there's at least one state that doesn't, right? mr. hallward-driemeier: well, i -- justice sotomayor: are you saying that that state is -
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mr. hallward-driemeier: i think that the constitutional test is the one that the court set forth in the zablocki, which is does the state have a sufficiently important interest not to recognize it? and certainly in the case of incest, the state does have a sufficiently important interest. justice sotomayor: this is not incest. they're not biologically tied. mr. hallward-driemeier: well the states that i'm aware of that have the rules against cousin marriage do so under their incest statutes, and they simply define incest in a broad way that would encompass cousins to marry. at some point, certainly the familial relationship is too extenuated that i don't think the state would have a sufficiently important justification. justice kennedy: but justice alito's question points out, the assumption of his hypothetical is, and of the way these cases are presented, is that the state does have a sufficient interest so that you need not allow the marriages in those in that state. so there is a sufficient interest, under our arguendo
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assumption here, to say that this is not a fundamental right. but then suddenly, if you're out of state it's different. why should the state have to yield? mr. hallward-driemeier: well, at the very least, you would have to analyze differently the interest that the state might assert for not allowing couples to enter marriage versus the interest that they assert as related to a couple who is already married. for example, kentucky has asserted that its interest in only permitting opposite-sex couples to marry is to increase the birthrate. well, now apply that theory to same-sex couples who are already married. they are already married in the states where they were married. they are already married in half the states in the country. kentucky would have the court believe that it is a sufficiently important interest to have that couple disregard their existing marriage vows and obligations to each other to marry someone else in kentucky in order to procreate biologically even though the
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couple may already have children together. that, i would dare say, is not a rational justification, much less a sufficiently important one. justice scalia: well, i think i what kentucky is saying is that the long-term effects of having same-sex couples in kentucky will be, which you didn't agree with, but what counsel for respondent argued in the prior case, will be a reduction in heterosexual marriages and a reduction in the number of children born to those marriages. mr. hallward-driemeier: your honor, this court has rejected that type of speculation as a basis for drawing these distinctions before as it did in loving. the state in loving argued that it was too soon to know what the effect of interracial marriages would be and what the stigma would be on their children if not the biological -- justice scalia: but we will not have rejected it if we come out the way this question
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presented assumes we have come out. mr. hallward-dreimeier: well the state -- justice scalia: mr. hallward-driemeier: the state asserts that it has an interest in the stability that marriage provides for children. that interest does not justify extinguishing marriages that already exist. justice ginsburg: may we clear this one thing. if the petitioner prevails in the first case, then the argument is moot, right? mr. hallward-driemeier: that's absolutely right, your honor. justice ginsburg: so you are supposing a situation where the plaintiffs do not prevail, and so a state can retain its ban on same-sex marriage. the question is has does it have to recognize marriage from out of state? would it make any difference if the couple came from the state where there is a ban on same-sex marriage, goes to a neighboring state that allows it, and then
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comes right back home again? mr. hallward-driemeier: no, your honor. i don't think that there would be such a distinction. and, in fact, none of these four states draws that kind of line that your honor presupposes. and that's one of the points that's so important here, is that as the court observed with respect to doma in windsor, the nonrecognition laws here are a stark departure from the state's traditional practice of recognizing out-of-state marriages even though they could not have been celebrated within the state. it's precisely that circumstance where the laws diverge that the issue arises. and the three states that have this issue, tennessee, ohio, and kentucky, are, between them, able to identify only 5 instances in which they did not recognize a marriage that was valid outside the state, even though it could not have been celebrated inside. and those instances are incest which we think the state would have sufficiently important
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justification not to recognize miscegenation laws, not a precedent on which i think the court would want to rely in this instance, or other interests that i think probably would not survive today, such as the rule against allowing a divorced person to remarry. so they're and more importantly, the most recent of those cases is from 1970. so the rule that the states cite about their ability to disregard, to effectively dissolve marriages that already exist, around which people have already begun to build their lives, is less applied than the federal government's own authority to define the -- justice roberts: yes. but, again, i think you're avoiding the presumption on which we're starting, on the assumption, which is that the state's policy for same supporting same-sex marriage is sufficiently strong, that they are they can, as a matter of public policy, prohibit that in their own state.
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and yet you're saying it's somehow so much weaker when you're talking about marriages from other states. mr. hallward-driemeier: i think there are a couple of points that i'd like to make in order to distinguish this situation from the question in the first case. in the first case, it was very significant that respondents' counsel was emphasizing that he thought it was merely rational basis scrutiny that would apply. but that was to the question of whether people should be allowed to marry in the first instance. our petitioners on question 2 are already married. we know from windsor, because the court held, that once married, a couple has a constitutionally protected liberty interest in their marriage. we also know from windsor that where a sovereign disregards that marriage in a way that would be extraordinary and out of character with tradition, that that requires, at the very least, careful consideration.
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justice roberts: it certainly - it certainly undermines the state interest that we would assuming arguendo, have recognized in the first case, to say that they must welcome in their borders people who have been married elsewhere. it'd simply be a matter of time until they would, in effect, be recognizing that within the state. because we live in a very mobile society, and people move all the time. in other words, it would kind of it one state would basically set the policy for the entire nation. mr. hallward-driemeier: well, of coarse, there would be many fewer such couples raising children within their borders than heterosexual couples who are raising children who are not biologically linked to them. i have to say that i think that the arguments that the state has made are so over and underinclusive at the same time, that they leave the -- the feeling that it can only be pretext. and we know that that's true because the state not only can't draw the lines that they are purporting to, they don't draw the lines that they're would
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suggest, and they would never draw the lines that they afford -- justice roberts: wait. i've lost you there. what lines are you talking about? mr. hallward-driemeier: a line for example, that limits marriage to those couples who are able to procreate biologically without any assistance. the states don't draw those lines. the states have laws that treat adoptive relationships with the same legal effect as biological ones. they actually have laws that further support and give greater stability -- justice sotomayor: i thought your argument would be different. i thought that the states had never categorically passed a law declaring that a particular kind of marriage was against public policy. no one of the four states had ever done that?
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mr. hallward-driemeier: they have never done that. that these laws are out of character, unprecedented in the language of romer in many respects. justice alito: you're saying that -- you're saying that the laws in some states, the states that you're referring to that recognize only opposite-sex marriage are pretextual? mr. hallward-driemeier: the their nonrecognition laws are pretextual, yes, because the longstanding practice of these states is to recognize marriages that are validly celebrated elsewhere precisely because of -- justice alito: other than the distinction we have the distinction between same-sex marriage and opposite-sex marriage. what is the next most dramatic variation that exists in the marriage laws of the states? mr. hallward-driemeier: well, at the time, certainly interracial marriage -- justice alito: at the present time. what is the most next or matter difference? mr. hallward-driemeier: well, i think that, if i could, the antimiscegenation laws actually are the closest analogy, but what's different between them, if i could because it goes to justice sotomayor's question and then i'll try to answer
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-- justice alito: well, i had asked a simple question. at the present time, what is the next most dramatic variation in the marriage laws of the states? mr. hallward-driemeier: it probably is age. justice alito: and what is the range? mr. hallward-driemeier: i think it goes from 13 to 18. and but as i said before, the tradition of the states the issue does not come up that much, but the tradition of the states is to recognize a marriage that was entered into by someone of an age that could not have been entered within the state, because of the nature of the marriage once it's established, recognizing that the fundamental nature of that relationship is not one that the state should put asunder. justice alito: well, i thought you answered me earlier that a state could refuse to recognize a marriage in contracted in another state where the minimum age was puberty. mr. hallward-driemeier: well they could, and i do believe that if, in the individual case, it was shown that it was because of lack of consent, the state could decide not to recognize
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the marriage. but with respect to the categorical nature -- justice ginsburg: it would have to be shown, i think, the presumption would be in such a state that someone age 13 can't consent. mr. hallward-driemeier: the age 13, i think probably you're right, but if it is a matter of 15 instead of 16, that the courts probably would recognize it, especially if, in reliance on their marriage, the 17 the couple had already conceived of a child, it would do no one any good to destroy that marriage and the stable environment that it might provide for the children, just as it does no one any good it certainly doesn't advance the interests of the children of opposite-sex couples to destroy the marriages that provide stability to the children of same-sex couples who are already married under the laws of other states. justice roberts: i think your argument is pretty much the exact opposite of the argument of the petitioners in the prior case. the argument that was presented
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against them is, you can't do this, we've never done this before, recognized same-sex marriage. and now you're saying, well, they can't not recognize same-sex marriages because they've never not recognized marriages before that were lawfully performed in other states. mr. hallward-driemeier: well -- justice roberts: you've got to decide one or the other if you win. mr. hallward-driemeier: no, i don't think so at all, your honor. and i think that what's essential and common between us is that we recognize that the marriage that our petitioners have entered into is a marriage. it is that same institution, that same most important relationship of one's life that this court has held out as fundamental -- justice roberts: maybe i am just repeating myself, but we only get to the second question if you've lost on that point already, if we've said states do not have to recognize same-sex marriage as a marriage. so assuming you've lost on that, i don't see how your argument gets you can't say that they are not treating the marriage as a
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marriage when they don't have to do that in the first place. mr. hallward-driemeier: well, i think that that actually highlights one of the problems of trying to decide the two cases differently, because, of course, deciding against petitioners on question 1, even if the court decides in favor of petitioners on question 2, would forever relegate those marriages to second class status and would raise all kinds of questions whether those marriages could be subjected to laws that are not quite so favorable -- justice scalia: you're rearguing question 1 now? is that is that what you're doing? mr. hallward-driemeier: no. i'm suggesting that even a win on question 2 does not fully validate our petitioners' marriages, but certainly we think that the state cannot disregard them cannot effectively dissolve existing marriages without a sufficiently important reason for doing so. this court recognized in the lawrence case that marriage, procreation, family relationships, childrearing are fundamental aspects of autonomy that same-sex couples can enter
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into, can choose for purposes of autonomy to the same extent as opposite-sex couples, especially when those couples have done so, have established a marriage, have brought children into -- i'd like to give an example, if i could, because i think that it sort of brings home what's really happening. matthew mansell and john espejo married in california in 2008. in 2009, they adopted two children. now, in reliance on the protection that is afforded by marriage, mr. espejo was willing to give up his job to give the primary caregiver of their children. mr. mansell is the primary breadwinner. his job in an international law firm was transferred from california to tennessee, and the cost of that transfer for that job for them was the destruction
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of their family relationships, all that they had relied on in building their lives together. and in support of that, the states offer exactly nothing. there is no reason that the state needs to disregard that marriage. no reason the state needs to destroy the reliance that mr. espejo has had in giving up his career to look after their children. they are doing everything -- justice scalia: it would have been it would have been the argument made with respect to the first question, namely, that the existence of same-sex marriages erodes, erodes the feeling of society regarding heterosexual marriages. mr. hallward-driemeier: as i said as i said before, your honor, i don't think that that holds up because opposite-sex couples who have no children who may be beyond childbearing years, when they move into these states, their marriages are entitled to respect, and yet they are situated precisely as
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our petitioners are. our couples, likewise, have marriages. they may not be able to procreate biologically together, but they are able to procreate through assisted means, through adoption. they bring children into their families just as opposite-sex couples do. and when, in reliance on their own state where they live, they move into these states, that marriage is destroyed. this court relied on federalism, the vertical kind, in windsor to identify something that was highly unusual. in this case, it's horizontal federalism, i think, that identifies something that's highly unusual. as part of a federal form of government in which the states are equal, the states have ceded some form of their authority. and one is to recognize that when another state creates an enduring relationship, encourages people to, in reliance on the protections the
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law affords, to establish families, that it is not that other states are simply free to disregard that which those states have created. in the corporate context, once a corporation is established under the laws of one state, that corporation exists in all other states. certainly, the families that our petitioners have established are entitled to at least that same respect. i think that, your honor, it is quite interesting to note that in the first argument, michigan was forced to argue some positions that i think are quite astonishing, that the state could limit marriage to couples who are capable of procreation without assistance or indeed that it could abolish marriage altogether. it's our clients who take marriage seriously. they took vows to each other and bought into an institution that, indeed, as this court has said predates the bill of rights, that is the most important and fundamental in their lives, and
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the state should offer something more than mere pretext as ground to destroy it. justice ginsburg: the state's rationale is we treat outsiders the same way we treat insiders. mr. hallward-driemeier: well thank you, your honor. they certainly have offered that, but what the state ignores is that these so-called outsiders are already married. the state, it's true, says well, we have same-sex couples in our state, and we don't allow them to marry, so we're going to treat you the same way. well, they ignore that our clients have already formed those relationships, and i think that it would be, in terms of the interests that distinguish between the two questions, it's helpful to think again, perhaps, about heterosexual couples. we don't think that a state
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could limit marriage to only those couples who are capable of procreation. we don't think it could preclude marriage by women who are 55 but it would be quite a different and distinct constitutional violation for the state to dissolve the marriages of opposite-sex couples when the woman reaches 55. i don't think that that's constitutionally permissible. the states don't do that and, of course, they never would do that, because the essential protection against arbitrary laws is that the majority has to live under the same laws that they would subject the minority to. and there is no chance that the majority would subject themselves to such a law as that. i'd like to reserve the remainder of my time. justice roberts: thank you counsel. mr. whalen. mr. whalen: mr. chief justice, and may it please the court, the fourteenth amendment does not require states with traditional marriage laws to recognize
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from other states between two marriages persons of the same sex. justice scalia: what about article iv? i'm so glad to be able to quote a portion of the constitution that actually seems to be relevant. "full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state." now, why doesn't that apply? mr. whalen: your honor, this court's cases have made clear that the court draws a distinction between judgments between states and the laws of each state. and the reason in part that the court's decisions have said that is that otherwise, each state would be able to essentially legislate for every other state. justice scalia: public acts? it would include the act of marrying people, i assume. mr. whalen: my understanding of this court's decisions as the reference in the constitution to public acts is that each state's laws. justice scalia: so there there's
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nothing in the constitution that requires a state to acknowledge even those marriages in other states that that are the same. mr. whalen: that's essentially correct, your honor. justice scalia: really? mr. whalen: under this court's decisions, that's essentially right. there has been under the jurisprudence with regard to allstate insurance and alaska packers and so forth that there's a minimal due process requirement to decline to apply another state's substantive law. justice scalia: we can say the only marriages we acknowledge in new york are marriages concluded in new york, is that possible? mr. whelan: i'm sorry? >> we can say the only marriages we acknowledge in new york are the marriages made under the laws of new york? >> yes, your honor. >> really? >> what case is that? what case would you say to support the proposition?
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>> i am not sure i understand. already have several cases to read. i might as well get another one. what is the case that holds that the state of new york has the right to recognize only marriages made in new york? if you are married in virginia new york has the constitutional right to say we treat you as if you were not married. whoever you are. >> i did not understand the question. why understanding of the question was whether new york could decline to recognize an out-of-state marriage that did not comport with new york law. >> that is not what i said. >> because it is clear it is a law -- if the law of two states is the same, the state cannot say we will not apply the other law, even though it is the same as our law. >> even though it is the same as ours? >> new york, i happen to know --
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a federal judge from washington could not marry someone. you cannot marry other people. but the district of columbia has the opposite law. so if primary 2 people in washington d.c., and they happened to move to new york, you are saying new york does not have to recognize that marriage, because it does not comport with the marriage of new york. is that your point? >> what case says that? i think there are a few people that are going to get nervous about this. >> my answer is based on, essentially, this court's decision in nevada versus hall, because the state law sets its own policy, and the other law would be with that state policy. >> and the policy would be we trust federal judges from outside the state. and even that, they would get away with, in your view. because i am to ask what is the difference
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between that kind of policy and the policy that says, we do not recognize the gay marriage for the reason that we fear that if gay couples get married, even if they have children and adopt them, and even if we allow people who are not gay to get married, or do not have children, despite all of that, this policy, which i have had a little trouble understanding lawrence not recognizing it. did you follow that question? it was congregated. >> i probably did not, but i am going to try to answer. underlying is not just that there is a policy, but that there is a legitimate policy, as this court earlier indicated, i perceive now on the assumption that court has decided the first question in the favor of the states, and has determined that indeed the state policy to maintain a traditional man/woman definition of marriage is legitimate, and we obviously agree that it is, and the court should so decide. >> does this have anything to do
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with article four? none of this has anything to do with article four. full faith and credit, right? >> full faith and credit provides the background for states to be able to assert that indeed we have the right to decline to recognize the out-of-state marriage, based on the out-of-state -- >> you are making a distinction between judgments. full faith and credit applies to judgments. you cannot reject the judgment of a sister state because you find it offensive to your policies. >> that is right. >> full faith and credit has never been interpreted to apply to choice of law. that is your distinction. >> yes, your honor. in essence, by deciding whether or not to recognize another state loss marriage, the state is deciding whether or not to recognize another state possible under which that marriage was performed. >> i am sorry. you don't see a fundamental difference between creating a marriage and recognizing a marriage?
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you do not think there is any difference, in terms of the rights of people? it states regularly do not say that the prerequisites to marriage in our state are not necessarily against public policy, and they have said it for age differences, they have sent it for a lot of things why -- why would the gay marriage issue be so fundamental that that can lead them to exclude a whole category of people from recognition? >> it goes, your honor, to the essence of, i think, in fact both questions before the court today get out and that is the fundamental notion of what marriage is. and let me answer the question if i could in this way.
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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 -- cannot be compared at all to how states are responding across the board with regard to the phenomenon of same-sex marriage, and here is the reason. commentators have observed that when all states were on the same page about what marriage is that is where the rule evolved from. every state had the same definition. every state showed the same difference. there is a liberal policy of recognizing marriages from one state to the other. >> you think marriage decrees are closer to laws than they are to judgments? you need to give a judgment to divorce. and i think that, in my mind,
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that makes the decree much closer to a judgment than it does to a law. >> i think the performing of a marriage is closer to laws because in essence, when the marriage is performed all the rights that flow from that state's laws evolved to that couple. and it is different than judgments, and so does not deserve the same kind of treatment that judgments would under the full faith and credit jurisprudence, because of the reason that this court has drawn. >> so what is in order under the constitution? or an act under the constitution that is not a judgment? >> i did not catch the first part of your question, your honor. >> had you separate out the terms that justice scalia gave you? they are not all judgments. three different terms were used, or four different terms. >> acts and judicial proceedings is what i recall. my understanding of the court
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jurisprudence has been that that refers to laws, records, and judgments in another state. very just have always been treated as a conflict of law matter. throughout all the years -- in fact, it gives rise to the entire conflict of law doctrine on which petitioners go up here. that is commentaries on the conflict of law. >> outside of the present controversy, when was the last time tennessee declined to recognize a marriage? any marriage. >> 1970 is the last i can point to. that involved a stepfather and a stepdaughter. i would hasten to add, because of what i was starting to describe with regard to how i 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.
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>> we are playing along with the same definition. there have always been to stations based on age, and family relationship. we are playing along under the same definition. despite that, it apparently is quite rare for a statement to recognize and out-of-state marriage. >> it is quite rare as long as we are talking about what marriage is, so long as we are talking about the fundamental man and woman marriage. that is 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, it is unsurprising that they would determine, in keeping with their own laws, that they would not recognize those other states -- their marriages. >> this next question could put you in a very unusual situation because first of all, we have to assume this first question has
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been decided against the petitioner. or we would not get to the second question. so we have to assume that we would hold that a state has a sufficient reason for limiting marriage to opposite sex couples. it has been a knowledge that a state could refuse to recognize and out-of-state marriage if it has a very strong public policy against that marriage, if it is a polygamist marriage, if it is a marriage of a very young individual. the question is whether there could be something in between. if there is a sufficient reason for the state to say we are not going to grant these licenses but not a strong enough reason for us not to recognize a marriage performed out-of-state -- i suppose that is possible, isn't it? >> let me answer this way, and hopefully i am answering your question in doing so. let me be clear.
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the justifications that have grown over time, and the requirement for a strong public policy reason to decline to recognize a marriage have grown up around the man-woman definition. our position is that so long as we are talking about a marriage from another state that is not the man-woman definition, that it is simply the state interest in maintaining a cohesive and compare -- coherent internal state policy with regard to marriage that justifies not recognizing those marriages. otherwise, as the question that was put earlier indicated, any indication -- any resident of the state could go to another state, come back, and say -- >> that happens already. people who are not permitted to be married in a lot of states go and do that. they go back to their home states, and the home states follow the rules >> and we are
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talking about the fundamental distinction between marriage as the state see it, the traditional definition, and the same-sex marriages that other states have adopted. >> they have the prerequisite. it is wholly the state judgment about marriage. but what should be a recognize marriage. they make exceptions. >> the difference here, i think, is the landscape we find ourselves in. tennessee, ohio, and kentucky have done nothing here but stand pat. they have maintained the status quo. yet other states have made the decision. certainly, it is their prerogative to do so, to redefine the definition. and to suggest that other states that have done nothing but stand pat now must
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example, or california. federalism accommodates this situation. it's the streppingt of our federal structure to accommodate the very difference of viewpoint and the very difference in approach, that this fundamental debate that we're having about same-sex marriage generates. and so it makes all the sense in the world with respect to that to allow the federal structure to do what it was designed to do and to accommodate those different points of view. and that is why we ask the court to determine that the 14th amendment does not come in and then disrupt that balance and impose a duty on one state to recognize the laws and to recognize the marriage of a different state, because of the
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intrusion it would have on that state's public policy. >> just a quick question. >> yes, your honor. >> you acknowledge that if the state loses on the first question then the state also loses on the second question? >> i do your honor. yes, your honor. no further questions. we ask you to affirm. >> thank you counsel. you have five minutes left. >> thank you, your honor. if i may start with the assertion that tennessee laws always put parental laws in biology, that is not so. tennessee law, and i'm going to quote from 36 -- i'm sorry. 683306 referred to on page 15 of our reply, provides that a child born to a married woman as a result of artificial insemination, with consent of the married woman's husband, the father is deemed the legitimate child of the husband and wife.
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though the husband has no biological relationship with the child. tennessee, in other words, just as it does with adoption, reinforces the bonds of parent and child, irregardless of biology as long as the couple is of opposite sexes. the import of that for real people, like doctors tanko and justy is that they, who fell in love and married while in graduate school in new york, as many academic couples, were only able to find a position as a same university in tennessee. they moved there and their tanko has given birth to their daughter in tennessee. now as a result of the non-recognition laws, when as occurred last week, their daughter is hospitalized tennessee would treat dr. justy not as mom, but as a legal
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stranger, with no right to visit her child, no right to make medical decisions for her. these laws have real import for real people. and although i think that counsel was suggesting that federalism and allowing states to make different laws if you choose to get married in your state, just don't move to ours that's the cost of federalism well sergeant dakoo and his husband didn't have a choice. united states army moved them to tennessee. and given the location of army bases in this country, it's almost a certainty that anyone serving in the army for any length of time will be stationed at some point in a state that would dissolve their marriage as a matter of state law. let me get back to your comment about categorical and how unprecedented it is. because even in the age of
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anti-miss ojination laws the states would give some purposes interracial purposes such as per purposes of estate, giving out the proceeds after a death, or otherwise. here however the state statute provides that a marriage shall be given no effect for any reason, even the husband's death certificate will not reflect the fact that he was married, or the name of his husband. the state has no legitimate interest for denying them the dignity of that last fact 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
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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
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>> today, we had a chance to make the case for helping this country live up to its promise to become a more perfect union. that even those who have been excluded can be included in the opportunities for a fulfilling life. that their marriages can be respected in the same way that people pass marriages have been
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respected in this country for centuries. it was a wonderful chance to speak of their personal stories. to make it real for the justices. that is what this case is about. the real lives of real people. real couples who commit their lives together, and their children who benefit from the stability of those marriages. we welcome the opportunity to answer the justices questions. i know that mary and i trust they will we -- they will reach the right decision. >> i am here today, i'm a plaintiff, we have our children here.
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we are joined here today with five other couples from the state of kentucky. we have very courageous families from kentucky who have stepped forward -- we are so proud to have joined with these other families. they are taking recognition of their families from other legal jurisdictions. we have two couples who have been waiting a very long time to get married in kentucky. each of these families have been so courageous. they have fought a hard battle. you have no idea the investment that our families have made to this cause. the easy thing for our families to do would be to leave kentucky. but we are proud kentuckians and we don't feel like we should have to leave our state to get the same treatment that other
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couples get in other parts of the country. so we are staying in kentucky. we will be together until death do us part, as we vowed, and we ask for equal treatment and protection under the law. that is all we are asking. for all of us in kentucky we are legal -- we are thankful for our legal team and are grateful for all the support we have received. we truly believe the justices when they look down on our family, they sell real people and real lives, and so many love stories. we have the best love stories you can imagine. they are all tremendous love stories and the justices looked at us today, and saw our love and our families, and i don't know how they could come to any conclusion except to recognize
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our marriage as legal and valid. thank you. >> >> my name is april, we took this case on out of production for our children. we stand before you one step closer to being a legalized family in the state of michigan. we are honored to be standing in front of all of you. honored with our attorneys mary dana, ken bob -- and all of the plaintiffs through michigan, kentucky ohio.


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