Legal Case Summary

Timothy Bostic v. George Schaefer


Date Argued: Tue May 13 2014
Case Number: D-14-0002
Docket Number: 2591190
Judges:Paul V. Niemeyer, Roger L. Gregory, Henry F. Floyd
Duration: 71 minutes
Court Name: Court of Appeals for the Fourth Circuit

Case Summary

**Case Summary: Timothy Bostic v. George Schaefer** **Docket Number:** 2591190 **Court:** [Specify Jurisdiction if Known] **Filing Date:** [Specify Date if Known] **Background:** Timothy Bostic filed a legal action against George Schaefer, seeking [specific legal remedy or relief sought by Bostic]. The case arises from events that transpired on [briefly describe relevant facts leading to the case, such as actions taken by Schaefer and Bostic's response]. **Issues:** The primary legal issues presented in this case include: 1. [Issue 1: e.g., Breach of Contract, Tort Claims] 2. [Issue 2: e.g., Negligence, Liability Questions] 3. [Other relevant legal questions pertaining to the dispute] **Arguments:** - **Plaintiff (Bostic):** - Bostic argues that [summarize Bostic's claims, the basis of his argument, and any supporting evidence or legal precedent]. - **Defendant (Schaefer):** - Schaefer contends that [summarize Schaefer's defense, counterclaims, and any legal theories or evidence he presents to refute Bostic's claims]. **Court’s Ruling:** The court [briefly outline the decision reached, including whether Bostic's claims were upheld, dismissed, or if the court ruled in Schaefer's favor]. **Conclusion:** The case of Timothy Bostic v. George Schaefer addresses significant legal questions regarding [mention the broader legal implications or relevance of the case]. The court's ruling [summarize implications of the ruling on both parties and any potential impacts on future cases or legal precedents]. **Note:** Additional details such as specific dates of hearings, evidence presented, and the judges involved may further enrich the summary based on further accessible court records. --- [Always verify the specifics of the case, including the jurisdiction and context, based on court documents, legal databases, or public records for completeness and accuracy.]

Timothy Bostic v. George Schaefer


Oral Audio Transcript(Beta version)

All right, we're gonna hear the first case, Bostic versus Schaefer, and Mr. Oakley, I think you lead off. Thank you, Judge Neymar. Good morning. May I please the court? I am David Oakley, and I represent George Schaefer in his official capacity as the Norfolk Circuit Clerk. This is an appeal from a district court order, which is a broad and sweeping order in a dramatic departure from existing law. In fact, for the appellaries to win here today, to win on appeal, they must show a doctrinal change in Supreme Court jurisprudence. However, there's been consistent application of the law when it comes to laws dealing with persons based upon their sexuality, and specifically laws dealing with same-sex marriage has been consistent application of the law from the Supreme Court in several respects. First, stating back over four decades to Baker V. Nelson, a state refusing to recognize. Same-sex marriages does not violate the 14th Amendment to process or equal protection clauses. Second, laws based upon person sexuality are only entitled to rational basis review. Third, the states have the near exclusive right power and ability to define what is marriage and to regulate marriage. And finally, number four is when it's an issue of important societal interests and it's part of the public debate, then the courts should defer to the democratic process and the fundamental rights of the voters. And that's where I'd like to start my argument, is with the case of shoe-and-short to speak. Did the Supreme Court have decided to winzer and left Baker intact? Yes, I believe the court and winzer by specifically not addressing Baker had left it intact. And the Second Circuit Court of Appeals, the Second Circuit specifically found Baker was no longer controlling law. And on appeal to the Supreme Court, the parties asked the Supreme Court to again address Baker and decide whether it was controlling. And there was a small amount of argument, an oral argument over that discussion. But the Supreme Court in its final opinion did not address Baker and in fact winzer is consistent with the holding in Baker. And so Baker still remains controlling. But the case of shoe-and-versus-BAMN is when a matter is part of the public debate. It's best left for the states to decide and allow the democratic process to continue because the states can continue to develop the rights of their citizens. And obviously, of course that has been well-recognized. And the court is very much interested in leaving issues like this to the states, I believe. But, and this is a big but, the states must conduct themselves in accordance with the overall structure, the design of the Constitution

. So that even if you leave a decision to the states, the states still can't trample rights that are protected in the 14th Amendment. And that really is the issue that we have here is whether this becomes a constitutional issue of magnitude or whether this is a democratic issue that's resolvable by the states. You're absolutely correct. The states cannot create a law that's otherwise constitutional. And the example that the court gives in winzer is loving V for Genial, which was decided on in videos, racial discrimination grounds. And at the time that loving was decided, racial discrimination laws that were based upon that for a long period of time had already been subject to strict scrutiny. And that's a different situation from the case we have here where laws that deal with persons based upon their sexuality or laws dealing with same sex marriage do not have that long history of receiving strict scrutiny. And the Marshall Newman Amendment in 2006 was passed by 57% of the voters. I was over 1.3 million voters in Virginia chose to reaffirm that the traditional definition of marriage would stay. And Justice Kennedy tells us that there are competing interests here. There's the individual liberty interest that's being asserted, but there's also the fundamental rights of the voters. And if society changes its views, the democratic process is still there. And the Marshall Newman Amendment certainly can be unwound by the voters again. The appellees here, they argue that not recognizing their relationships as qualifying, the same sex marriage qualifying for the fundamental right of marriage is demeaning. However, if we look at the reasoning of Justice Kennedy, what's equally of not more demeaning is to presume that the voters of the Commonwealth are incapable of deciding an issue of this importance and that their votes are to be ignored. Well, he gives you a little bit, and he takes a little bit away in his opinion. As you know, he also spends a fair amount of time talking about the rights of the states to resolve this type of question. And then he goes on to talk in some respects in language that would not be totally useful here cause. You're absolutely correct. However, the the Shoah case certainly is consistent with prior opinions from the court, and it merely enhances the discussion and Windsor, which, which itself is based upon federalism and letting the states continue to decide the issue of marriage. Because Windsor, one of the most important lessons out of many that we learned from Windsor is that the regulation of marriage is almost the exclusive province of the states back to Judge Neymar's point. In Windsor, they kind of gave short shift to the argument of federalism and they went on and emphasized the due process of the protection. They did go on to do a due process analysis, however, it was still couched in the idea and that this was federalism and that it was the state. The state of New York had specifically gone forward and made that recognition of same-sex marriages and given those marriages to the people of New York, but then it was taken away by the federal government

. The federal government by passing section 3 of Dome of the federal definition took away that right from the from those citizens and the law was found to be one of an unusual character because it did take away those rights from the voters. And Windsor tells us that that regulating marriage not only is it part of is it reserved to the states, but specifically the definition of marriage is the foundation of the state's broader authority to regulate the subject of domestic relations. And the notion that the states can define marriage, how they choose, at the time Windsor was decided there was really only two ways that states had to find marriage. That's either the traditional historical sense of a man, woman marriage or this newer version of recognizing same-sex marriages. And so the Windsor by specifically saying that the states have that foundation to be able to define what marriage is. They could have said that they have to define it to include same-sex persons, that that's a fundamental right, but they chose not to do so. But do you agree that marriage has been described as a fundamental right? Absolutely. It has a loving-vivirginia describes it as a fundamental right. However, with the exception of Windsor, every single Supreme Court case that has dealt with the fundamental right of marriage has only been between one man and one woman. So it's presumed that that fundamental right is only the traditional, the traditional notion of marriage, unless the states choose, as they didn't Windsor, the state of New York didn't Windsor, the states choose to expand that definition to include same-sex couples. But the fundamental right to marry is that an individual right? It is an individual right, but it's also a right of the pairing of the couple. How could it be that the essence of the right to marry is an individual choice to marry the person that they choose? Is that the essence of the right? Correct. Just like Anne Wright-Hell. Do you agree with that? Yes, just like Anne Wright-Hell. But then why do you then shift over and say now when you define it, it now becomes couple with someone? It's choice, individual choice. It's autonomy, and you agree it's one of the most important decisions and rights that we have in America. It is an extremely important decision and it is an individual right that affects the couple together. How can Virginia define it to a point that its fundamental essence is unrecognizable? It's where I would disagree, it's not unrecognizable. It's the way that marriage has been defined throughout the centuries. Marriage has been defined throughout the centuries as between being between one man and one woman. Marriage is for the people, but the people are for marriage. I mean, as you admit that marriage existed before government did, correct? Yes. But the whole idea is choice and people make a decision. And you said that you could define it any way the state wants to? The state as long as it's otherwise constitutional that they're not placing an additional barrier on the right to marriage such as the Invitious Racial Discrimination and Loving V. Virginia or the Prohibition on persons who owe child support and there's a blocky case

. Child support? Our internal case? Our internal case involving Invit. Correct. That was another situation which actually was decided on rational based review because applied a lower level of scrutiny because it was dealing with a penological interest. Yet prisoners couldn't marry. That does not change because in the internal case it would be in prison the ward of the state and you can make a commitment to love and share someone in the state could not prevent that. Absolutely. And there's numerous issues. Yet a person because of a person's sexual orientation, they don't have that right in Virginia. There are numerous interests and marriage. Love and commitment are certainly personal interests and marriage. However, the governmental interest and marriage is that. The governmental interest and marriage, particularly here, is to steer the procreate of potential of opposites tax couples towards the notion of marriage in order to protect the children and counsel for protect the children from Clark McQuig is going to address that further but uh. It sounds like it's a totalitarian system where you like people are baby makers and you get married for the interests of the state. Do you require married people to have children? Absolutely not. You ban nine-year-old couples from getting married? Do you ban nine-year-old couples from getting married? Absolutely not. Well why not? Because you can't. There would be no way to constitutionally put a procreation requirement on marriage. However, it's still a legitimate argument. Oh, you said there's no way to constitution put procreation requirement on marriage. Did you say that? Yes, Judge. Okay. And if we are going to- So how is that a legitimate interest that Virginia prof is here now? A procreation in child's center? I'm sorry can you repeat the question? Is that the rational basis that you're profaring to a court? Absolutely. Absolutely. However, it's not our burden. It's not the government's burden to prove the rational basis

. It's the plaintiff's burden but that is one of the many rational basis that have been profored by the parties and by the Amicus. But your rational basis must have some reasonable connection with what you're trying, which you port in to achieve. Correct. And that rational basis, it's not irrational to know and to assume that only offs its ex-couples have the biological potential to have a child. That's the only pairing that potentially could have an accidental pregnancy. And so it's the state interest to protect children in those sort of situations. And one of the other issues that we do need to address is defining the assertive liberty interest here. The appellate certainly wants to argue that marriage, the broader definition or the broader fundamental idea of marriage is the assertive liberty interest. However, Gluxberg, the Washington to be Gluxberg case tells us that the assertive liberty interest must be carefully described and then you have to look to the history and tradition to see if that assertive liberty interest is deeply rooted for it to be a fundamental right. And same-sex marriage, obviously that is the careful description of the assertive liberty interest here. And it certainly does not have deep roots in America's history and tradition. The Supreme Court and Windsor recognized that only until just a few short years ago, nobody would have considered same-sex marriage even to be a possibility. And indeed, just the last few years, the current count is 17 states now permit same-sex marriages. However, the majority of states, 33 still do not recognize same-sex marriages. And so there is nothing- So anything was true in loving. Nobody would have considered interracial marriages in Virginia in the 1920s, 30s? You're absolutely correct, sir. However, there is a history of, prior to the Jim Crow era laws, the anti-misage nation laws, the idea of interracial marriage was not prohibited. It still fit within the fundamental right of marriage, the idea of a man-woman marriage. And before Virginia passed those affirmative anti-misage nation laws, people could, it might not have been the social norm, people certainly could have married, and indeed did marry across racial lines. Pocahontas married John Rolf in the early 1600s, and their marriage wasn't declared unconstitutional. And it appears I am running short of time here. And so in conclusion, the appellaries do have a heavy burden here, and they ask that this court set aside the public debate and the democratic process, in favor of a policy determination by this court, and marriage is a fundamental right, but the voters of Virginia have spoken. They chose not to expand that right to include same-sex couples, and the binding precedent of Baker V. Nelson has not been altered in the last four decades. The consistent- It was a summary dismissal, and the- You want to hear it wait, it's real silent, too? Absolutely, and I don't think that anybody here disagrees that a summary dismissal by the Supreme Court is a binding decision on the merits, however the appellaries argue that there's been a doctrinal change in the Supreme Court jurisprudence, and they cite to three cases for that proposition, that's the Windsor case, the Lawrence case, and Roman V

. Evans. Those cases are not a doctrinal sea change, as the solicitor general points out. Instead, they are a consistent message from the Supreme Court. Each one of those cases deals with persons based upon their sexuality to some extent, and each one of those cases applies rational basis review only, so it is a consistent message from the Supreme Court, and it has not changed. I believe I'm out of time, thank you very much. Thank you, Mr. Oakley. Mr. Nimmitz? I'm going to go to my cup. Pull the mic up, to me. Good morning, and may it please the court, Austin Nimics, on behalf of the intervener, Michelle McQuig. Before I address the three primary points I want to address this morning, I want to put this case in context. This case arises amidst a great debate in our nation right now over the true essence and meaning of marriage. And this court to decide this case does not need to take size in that debate. It only needs to determine whether the answer to that debate is dictated by the United States Constitution, or whether the people are free to decide it. The first point in this regard that I would address is that the right ascribed is the right to enter into the union of husband and wife. That is the fundamental right on the table. And all of the Supreme Court's historic cases, every single one of them dating back to the Murphy case in the 1800s, all the way up into the modern era, support the fundamental right to enter into the union of husband and wife, a fundamental right that is inextricably linked to procreation. And this even includes, for example, cases like the Turner case that was mentioned a moment ago. A key point in the Turner case, the NMA case, was that the Supreme Court, Justice O'Connor, specifically recognized that inmates are expected to be released, and they are expected to consummate marriages that they will enter into. And in the very next paragraph, I think this is a really important point about Turner, is the Supreme Court distinguished it from a case called Butler, which was a summary of firmance from a case out of the Southern District of New York, where a prisoner was denied the right to marry because he was incarcerated for life with no possibility of parole. The distinction between the prisoners in those two cases is that one was expected to get out and consummate his marriage, reaffirming the procreative links to the fundamental right, and one was not and thereby denied the fundamental right. And that important part of Turner cannot be overlooked. And even in the Skinner case involved in NMA, and the Supreme Court directly recognized that the procreative right of this inmate that would be implicated by the sterilization, did implicate his fundamental right to marry. And I think also implicitly recognizing the idea that this inmate and Skinner would get out, he was not incarcerated for life without permission, I think his crime was robbery

. So all of the cases about the fundamental right to marry support the right to enter into the union of husband and wife. And that has been affirmed by the Supreme Court in a multitude of cases, all of them of course involve a union between husband and wife. Judge Floyd, you asked about whether the Supreme Court can decide Windsor without addressing Baker. And I agree with my co-counsel that they absolutely can. And I want to make this point about Baker, and I think this is important. The reason this Court should lend credence to Baker is not what I say, but with the Supreme Court said. The Supreme Court has been explicit that summary affirmances like Baker remain binding and tell the Supreme Court says otherwise, and tell they say otherwise, they said that in the Hicks case, and they said that in the Tollie case. And one of the common errors of all the courts that have addressed Baker since the Windsor decision is that they have refused to acknowledge that fact that the Supreme Court said it belongs to them, not the lower courts, but only the Supreme Court to determine that when a summary affirmance like Baker is no longer binding. That's probably pretty evident that you're here in Richmond as a waste station up 95 to Washington. That very well could be said to probably have our say, and ultimately this issue will be decided again, I think, by the Supreme Court either out of the 10th Circuit or our circuit, or one of the other circuits that's issuing, considering this issue. So, acknowledging that Judge Neymar that the Supreme Court may very well have a say, again, as it pertains to Baker. But we do not believe that the plaintiffs claims that they ascribe fit within the fundamental right to marriage. And the the common error we believe- You know this fundamental right to marriage is language of the Supreme Court, but it built on a longer recognition of marriage as the core of the family unit, which is a political unit, that society does have an interest in recognizing, for a lot of good reasons. I mean, every person in this room has as a parent one woman and one man, regardless of this orientation. And a grand parent is one woman and one man of the parents. And that family unit over history has been recognized as stable and has been elevated by requiring a declaration publicly in a contractual relationship in order to promote it. I mean, the Supreme Court in the Maynard case, it talked about marriage being the foundation of family and society. So, it seems to me a state might be able to latch onto that and say we are interested in continuing that. But that said, why couldn't a legislature just as well say we can think it's in furtherance of the stability of society to recognize the union of same-sex couples and to provide them the same economic benefits and to give them recognition to raise the dignity of the relationship. That would be within the scope of the state's authority, too, wouldn't it? It would judge Neymire and the Windsor Court expressly recognize that what New York did with its marriage laws was perfectly constitutional. What the Windsor Court did not say is that what New York did was constitutionally required of all the other states. And if that is true, that the United States Constitution answers this question for the court, then I believe that the Windsor opinion in its entirety becomes meaningless. The essence of the Windsor opinion is that the federal government must defer to the states. That is the essence of the opinion. That's what the Supreme Court concluded

. But if the US Constitution already tells us what the outcome is, what is the basis for difference? To what must the federal government defer coming from the states? If in fact, the source of the answer is already the constitution. It obliterates the entire meaning of the opinion. The seven pages that the court spent talking about the state's fundamental authority over the marital relationship, it makes it utterly meaningless if the US Constitution, as the plaintiffs claim, already answered this question. And remember that Windsor was a same-sex marriage case. If there was a time for the Supreme Court to say that the constitution disposes of this issue, it was then it was not a time to say that the states possess inherent authority over the marriage. That's the only, I think, rational way to read the Windsor opinion. And so that really answers the question, I believe, before this court, that the constitution does not compel the outcome. This is a great debate. There are impassioned people on both sides. Our president has acknowledged that there are people of goodwill on both sides. But the constitution does not require that Virginia do what New York does, or that what New York must do what Virginia has done in this particular case. And that really gets into why does Virginia have its marriage laws? What are the rational bases for the marriage laws? Because if this right that the plaintiffs are claiming does not implicate a fundamental right, then we are under rational basis review. And the marriage laws are dependent on the distinguishing characteristics of the Supreme Court used in the Cleveland case of men and women and man-woman couples and their unique ability to procreate intentionally and oftentimes unintentionally as that may be. The state of Virginia is entitled to recognize, as we stated in our brief, that 99% of the kids born in this country are the products of man-woman relationships and children are essential to the future of any society. The Supreme, excuse me, the state of Virginia is legislating at the core here, talking about 99% of the offspring and upholding with the marriage laws, the idea that men and women bring diversity to parenting, bring the essence of both sexes to the idea of parenting, connecting as best as possible, as much as possible, children to the mother and the father that brought them into this world, and providing stability to the families that are generally producing the next generation. Those are eminently rational concerns that the state of Virginia is entitled to have and they have had them from the very beginning. Virginia became a colony in 1607, the marriage laws are nothing new in Virginia. The constitutional amendment did not change the law. The statutes that the plaintiffs have claimed are unconstitutional that were enacted in 1997 and 2004 are not new to the extent that they affirm Virginia's consistent and always definition of marriage as the union of one man and one woman. Well, I haven't heard either one of you talk about California couples who were awfully married under the California law and they come to Virginia and try to get their marriage recognized. What do you got to say about that? Judge Floyd, the claim there rings as I understand it by the plaintiffs only in equal protection and that Virginia violates the Constitution by recognizing some marriages and not others. And I would say to this that Virginia and no state has ever been required constitutionally to recognize any marriage from another jurisdiction, but the very idea of recognition implicates notions of full faith and credit. But more specifically, Virginia has always consistently maintained the right throughout its jurisprudence and case law to not recognize marriages that are inconsistent with its public policy. And so as far as that is concerned, it is consistent and if Virginia has to recognize a same-sex marriage from California, then I see my time is on may I finish my answer, Judge Meant, thank you. It lays waste to the entire public policy

. So what difference does it make? In Virginia, it doesn't have to issue the license, but it must recognize it from another state. It's really an end-around Virginia's public policy. So it has an interest in upholding its public policy through recognition policies in the same way it would with concealed handgun licenses. How far to policy was child centered? What about the child, the children of those marriages? They were consummating out of state legalized, and they come to Virginia. What about the children? Judge Gregory, there are of course all kinds of children and all kinds of families in the state of Virginia. The Commonwealth has an interest in all of them. Why do you want to deny them that all of those warm and wholesome things about marriage? Well, specifically because the animating purposes of the marriage laws, but I don't think Virginia denies anything to the children of same-sex couples any more than it denies to the children of single mother or a grandfather who's raising a grandson, they don't have the rights or benefits of marriage. Is this the commonwealth? But they can marry the person they want to marry. That's the whole point. Well, the single mother or single father you just talked about, they can marry the person they want to marry, correct? They could. They cannot marry the person they want to marry. The opposite sex person they want to marry is under Virginia law and under another fundamental right, they have the right to do that. Do you think the child loves their parents less because they're same-sex parents? Not at all. Not at all. Do you think the child wants less the embracement of the dignity of marriage, what it offers in the other child? Not at all, but that if you're concerned about the child, why does Virginia rip that from the child? As we stated, there are three primary reasons why the state of Virginia is involved in the marriage business together. But why does Virginia want to rip that embracement from the child? We're talking about the child. You said it's child-centered. Let's go to the core of your rational basis. Same-sex couples do not. No, we're not talking about couples. We're talking about children. You said that it's child-based. Why do you want to rip that from a child? That's the question. And let me try to answer it, Judge Gregg. Please

. Same-sex couples do not provide the child with both a mother and father. And if we want to look at it from the child's perspective, Virginia has stated over and over in its public policy that a child is entitled to have a connection to both its legal mother and father. Virginia Supreme Court said that just last year. And Virginia accepts the proposition that the two sexes are not flungible, something that is a mainstay in the Supreme Court jurisprudence. We recognize gender diversity and all kinds of arenas in our social society. The value of women and education in the workplace in juries where we administer justice is the state of Virginia really prohibited from saying that we value men and women as parents and role models in our families. We don't believe that that is an unconstitutional proposition. All right, thank you, Mr. President. All right, Mr. Thank you, Your Honor. May it please the Court. I'm theodore Olson on behalf of the Bostic Plainus. Virginia's marriage laws single out for discrimination a class of Virginians, according to their sexual orientation and the gender of the person that they love, and exclude them from not only marriage, which the Supreme Court has said again and again is the most fundamental and important relation in life. But prohibit Virginia goes on and prohibits and invalidates any domestic partnership, relationship, or legal status that approximates quote, the design, quality, significant, or effects of marriage. That is what this case is about. Marriage, a fundamental right, and it is not- I'll just add a little bit to the here colleague. Indeed, the Supreme Court has elevated marriage to an important relationship. And I think one of the problems I had with the briefs in this case is that everybody was using the word marriage to talk about different things, different relationships. It seems to me what Virginia was trying to do was to recognize the fact that every person in this room is the product of a marriage and that the stability of a family created by those unions was important to society. And of course, as we all know, every society in history basically has found it so important they have required usually public contracts, public declarations, and many societies have elevated it to a sacred relationship. Now that relationship A, which is the core of a family and of the family unit as part of society, was what Maynard recognized when it said the found- that marriage was the foundation of the family and society. That doesn't mean that society and a state can't recognize a different relationship, call it relationship B. And not until recently has there been a proposal to have that relationship recognized. Now to call both relationships marriage doesn't make sense if traditionally and historically it's always been thought up to be the core of a family

. It's now thought to be- the state can redefine it and call it marriage, but we have two relationships and we now have a new relationship that I think a state can well show respect to by recognizing the same sex relationship which gives a lot of the benefits, but it can't create the same family unit that has been recognized through history because it ends, it physically ends because the right to have you and you and everybody here cannot happen to the same sex marriage. So the state is making a decision, we're going to favor marriage by, for instance, inheritance. We're going to let the child inherit from the grandfather or the state I think has inheritance default inheritance on that basis. So there are tax laws that promote benefits for people in a family relationship. That can be changed and a state could change it, but I don't think it's useful to start comparing the new relationship of the same sex unit and the old relation of a heterosexual union. These are two different relationships that have totally two different purposes in society and I think it would be- it's very positive for you to present strong arguments that the state increases stability, increases the dignity of this new relationship, increases the economic benefits, but to mix the two is to play with the language I think. Well let me answer that in a number of ways you're on. In the first place, a number of those arguments many of the same arguments were made in the loving case. That has- I was been this way since- That's racist, but I'm into the many. I mean that's racial discrimination. I don't think that- I respectfully descend from that point of view, Your Honor, because the Supreme Court in the Zablaki case went on to say it involved race in that case, but it involved marriage in that case and right to marriage is all individuals. The loving case is not just an equal protection case, it's a due process case. You take marriage as a relationship that has been recognized for what it is. That is the unit of society that keeps society going, that keeps humankind going. A black man and a white woman or a black woman and a white man can still do that. It's benign, it's irrelevant. The problem in loving was racial discrimination. But the Supreme Court of the United States has repeatedly said that the loving case was not just a racial case and that marriage is for all individuals. This is- the Supreme Court has described marriage as a fundamental relationship in 14 cases. Now those cases have involved divorce, sterilization, contraception, twice, divorce twice, abortion, maternity leave, childcare, and in the Lawrence versus Texas case, the Supreme Court of the United States said persons in a homosexual relationship are entitled to those same attributes of relationship. Now what the Supreme Court has said that marriage is all about is liberty, association, spirituality, privacy, and no state has ever- How far do you want to carry that? For instance, would we- we were to rule that this is a personal liberty that can't be infringed by a state. Would people rule then that a man could marry six wives? No, Your Honor, in the Supreme Court. Or could marry his daughter? There are justifications. The state does have to come forth and it has come forth in previous cases with respect to polygamy statutes that there are societal overwhelming societal reasons with respect to polygamy and with respect to incestuous relationship. What is a heavy interest in interfering with the relationship between a man and three women? Well, the Supreme Court of the United States has said that it leads to tyranny between men and women and high-archival society. It creates problems with childcare, child division, divorce, and a whole number of things like that. More fundamentally, fundamentally, discrimination on the basis of sexual orientation and gender, because as Judge Gregory was pointing out, this is an issue of choice. At the last line of the loving decision, it said pretty much the same thing that Judge Gregory was saying that the under-our constitution, the freedom to marry or not marry, resides with the individual and cannot be infringed upon by the state. Now, yes, that was a case about race, but subsequent decisions made it clear that the right of choosing your spouse in a marital relationship is an individual choice. It's not the right of the state. Can the state say to a two persons, a man and a woman, that you have to enter to be married, you have to enter into a contractual relationship and publicly declare that relationship and a state do that? Well, the state can regulate marriage in certain different ways and all of the states have done so, but what the states have never done is make procreation the desire to procreate or the willingness to procreate or the ability to procreate, procreate a condition of marriage never once. In all of those cases that the Supreme Court procreation is not, that's backwards. You've got exactly backwards. I don't think they've said that. What they have recognized is that marriage is the driving force for the family. The family doesn't have to exist. A man and a woman don't have to have a child. They can go together and marriages aren't always the product of love. Sometimes they've been arranged throughout the years, but a marriage is a unit that's important to society for a lot of reasons. And the state can elevate that importance without saying we're not going to recognize any other relationship. That's not even on the table. The idea is to support this unit and to give it support through inheritance and to say it creates stability in society. And that's what Virginia has been saying. But with all to respect, what the Supreme Court decided in a number of pages just last June, in the Windsor case, it talked about families that involve people of the same sex and families of different sexes. And it says that if you are excluding from that relationship that you yourself pointed out is so important. It's important for tax benefits. It's important for child custody. It's important for inheritance and it's important for welfare. It's important for health insurance. All of those advantages are being held withheld from individuals because they have sexual orientation, which is different than heterosexual orientation

. It creates problems with childcare, child division, divorce, and a whole number of things like that. More fundamentally, fundamentally, discrimination on the basis of sexual orientation and gender, because as Judge Gregory was pointing out, this is an issue of choice. At the last line of the loving decision, it said pretty much the same thing that Judge Gregory was saying that the under-our constitution, the freedom to marry or not marry, resides with the individual and cannot be infringed upon by the state. Now, yes, that was a case about race, but subsequent decisions made it clear that the right of choosing your spouse in a marital relationship is an individual choice. It's not the right of the state. Can the state say to a two persons, a man and a woman, that you have to enter to be married, you have to enter into a contractual relationship and publicly declare that relationship and a state do that? Well, the state can regulate marriage in certain different ways and all of the states have done so, but what the states have never done is make procreation the desire to procreate or the willingness to procreate or the ability to procreate, procreate a condition of marriage never once. In all of those cases that the Supreme Court procreation is not, that's backwards. You've got exactly backwards. I don't think they've said that. What they have recognized is that marriage is the driving force for the family. The family doesn't have to exist. A man and a woman don't have to have a child. They can go together and marriages aren't always the product of love. Sometimes they've been arranged throughout the years, but a marriage is a unit that's important to society for a lot of reasons. And the state can elevate that importance without saying we're not going to recognize any other relationship. That's not even on the table. The idea is to support this unit and to give it support through inheritance and to say it creates stability in society. And that's what Virginia has been saying. But with all to respect, what the Supreme Court decided in a number of pages just last June, in the Windsor case, it talked about families that involve people of the same sex and families of different sexes. And it says that if you are excluding from that relationship that you yourself pointed out is so important. It's important for tax benefits. It's important for child custody. It's important for inheritance and it's important for welfare. It's important for health insurance. All of those advantages are being held withheld from individuals because they have sexual orientation, which is different than heterosexual orientation. Strict scrutiny and heightened scrutiny is involved in this case because what the Supreme Court- Only if we are talking about the relationship that the Supreme Court is described as a fundamental right, that is to enter into the relationship of marriage that has been favored by societies for thousands of years. The American laws simply recognized what had been in existence literally as long as human memory continues. The question is the new relationship that just appeared what 30 years, 40 years ago, the proposal that we recognize a formal relationship between same sex people. When we do that, we are entering into a new type of relationship. And I think it'd be well worth doing everything you're saying. That is to provide economic benefits, to provide. But you cannot make that union the same as the union that is talked about in the Supreme Court. It is the same. Then the Supreme Court Windsor decision talked about all the reasons why went with holding that relationship. All of those benefits and imposing that stigma, you're saying that these individuals, my clients, have a second class relationship. They're not entitled to those benefits. Their children are demeaned by that relationship. The United States Supreme Court said those children are humiliated because they are not in the same status as the people that are living next door. So you have a relationship that's exceedingly important because of all the benefits, because of what society recognizes, and all the damages that are done when you withhold that from a class of persons, 14 times or 12 times in the Supreme Court decision, the Supreme Court and Windsor recognizing. I'm sure you're making good policy arguments that 17 states have now bought, and my guess is that number will grow. In other words, states will recognize it for the very same reasons you're talking about. But that's a different story than saying relationship A is a relationship in which people in relationship B can dissipate in the original sense. They can have a new relationship that's parallel with less attributes because they can never be the core of this. With holding that relationship from same sex individuals does not discourage heterosexual persons from getting married, having children, remaining married, or procreating in any way whatsoever. So the damage is being done without serving what the state says is its purpose. Don't you think that would be a good argument for a legislature to recognize us as same sex union? Of course it is a good argument for the legislature, but fundamentally we are in a court created by Article 3 to protect the fundamental rights and equal protection of the citizens of the United States, and we are withholding that benefit. That's very, very, very important. Most fundamental relationship in life, the marines of court said it's an intensely important relationship. We're withholding that from a class of arts citizens on the basis of their sexual orientation and the gender of the person that they love. That does grave damage

. Strict scrutiny and heightened scrutiny is involved in this case because what the Supreme Court- Only if we are talking about the relationship that the Supreme Court is described as a fundamental right, that is to enter into the relationship of marriage that has been favored by societies for thousands of years. The American laws simply recognized what had been in existence literally as long as human memory continues. The question is the new relationship that just appeared what 30 years, 40 years ago, the proposal that we recognize a formal relationship between same sex people. When we do that, we are entering into a new type of relationship. And I think it'd be well worth doing everything you're saying. That is to provide economic benefits, to provide. But you cannot make that union the same as the union that is talked about in the Supreme Court. It is the same. Then the Supreme Court Windsor decision talked about all the reasons why went with holding that relationship. All of those benefits and imposing that stigma, you're saying that these individuals, my clients, have a second class relationship. They're not entitled to those benefits. Their children are demeaned by that relationship. The United States Supreme Court said those children are humiliated because they are not in the same status as the people that are living next door. So you have a relationship that's exceedingly important because of all the benefits, because of what society recognizes, and all the damages that are done when you withhold that from a class of persons, 14 times or 12 times in the Supreme Court decision, the Supreme Court and Windsor recognizing. I'm sure you're making good policy arguments that 17 states have now bought, and my guess is that number will grow. In other words, states will recognize it for the very same reasons you're talking about. But that's a different story than saying relationship A is a relationship in which people in relationship B can dissipate in the original sense. They can have a new relationship that's parallel with less attributes because they can never be the core of this. With holding that relationship from same sex individuals does not discourage heterosexual persons from getting married, having children, remaining married, or procreating in any way whatsoever. So the damage is being done without serving what the state says is its purpose. Don't you think that would be a good argument for a legislature to recognize us as same sex union? Of course it is a good argument for the legislature, but fundamentally we are in a court created by Article 3 to protect the fundamental rights and equal protection of the citizens of the United States, and we are withholding that benefit. That's very, very, very important. Most fundamental relationship in life, the marines of court said it's an intensely important relationship. We're withholding that from a class of arts citizens on the basis of their sexual orientation and the gender of the person that they love. That does grave damage. That violates the equal protection clause and it violates the due process clause and you cannot read loving, Lawrence, Roma, and the Windsor decision and come out any other way. Thank you, Mr. Olson. Thank you. Mr. Essex. Yes, you are. May please the court, James Essex, for the Harris interveners. I'd like to take us to equal protection, Your Honours. I might have overlooked it. What are the facts of the Harris? I do know the circumstances of the other two couples that are involved in this case. In the Harris couple, apparently, represented class, do they? Yes, Your Honour, there are two class representatives of couples. One of them is a couple that is unmarried in Virginia and which is to marry. The other is a couple that is married in DC, but lives in Virginia and wants their marriage as respected. They represent respectively two subclasses of all same-sex couples in Virginia, about 14,000 couples who cover both the recognition. I was just looking at the individuals, our reps and the class. I understand there's a class, so we have two couples, one living in Virginia and another living in DC. Well, actually, both living in Virginia and Your Honour, one is unmarried and wishes to marry in Virginia. The other is married in the District of Columbia and wants that marriage recognized here. The marriage bans in Virginia, Violet Equal Protection on any level of review, but we urge this court to hold that government discrimination based on sexual orientation is not entitled to a presumption of constitutionality because applying a rational basis review to this law does just that. It says that there's a presumption of constitutionality. Instead, the court should require government to come forward with an explanation for why in any given instance it needs to rely on and make distinctions based on sexual orientation. Applying a differential level of review to sexual orientation discrimination by the government would be inappropriate because, in the words of Justice Kennedy, it would demean the dignity and worth of a person to be judged by his or her own merit and essential qualities. But the Supreme Court did not put a label on the type of security in applied in Windsor. How does Windsor support your argument that heightened security applies in this case? You're on two things

. That violates the equal protection clause and it violates the due process clause and you cannot read loving, Lawrence, Roma, and the Windsor decision and come out any other way. Thank you, Mr. Olson. Thank you. Mr. Essex. Yes, you are. May please the court, James Essex, for the Harris interveners. I'd like to take us to equal protection, Your Honours. I might have overlooked it. What are the facts of the Harris? I do know the circumstances of the other two couples that are involved in this case. In the Harris couple, apparently, represented class, do they? Yes, Your Honour, there are two class representatives of couples. One of them is a couple that is unmarried in Virginia and which is to marry. The other is a couple that is married in DC, but lives in Virginia and wants their marriage as respected. They represent respectively two subclasses of all same-sex couples in Virginia, about 14,000 couples who cover both the recognition. I was just looking at the individuals, our reps and the class. I understand there's a class, so we have two couples, one living in Virginia and another living in DC. Well, actually, both living in Virginia and Your Honour, one is unmarried and wishes to marry in Virginia. The other is married in the District of Columbia and wants that marriage recognized here. The marriage bans in Virginia, Violet Equal Protection on any level of review, but we urge this court to hold that government discrimination based on sexual orientation is not entitled to a presumption of constitutionality because applying a rational basis review to this law does just that. It says that there's a presumption of constitutionality. Instead, the court should require government to come forward with an explanation for why in any given instance it needs to rely on and make distinctions based on sexual orientation. Applying a differential level of review to sexual orientation discrimination by the government would be inappropriate because, in the words of Justice Kennedy, it would demean the dignity and worth of a person to be judged by his or her own merit and essential qualities. But the Supreme Court did not put a label on the type of security in applied in Windsor. How does Windsor support your argument that heightened security applies in this case? You're on two things. One is you're right that the court in Windsor didn't give a traditional label to the level of review that was applying. It talked about careful consideration and the court could look at that as either some form of heightened rational basis review or as the Ninth Circuit did, the court could look at it as heightened scrutiny full force. But regardless of that, the Supreme Court in the series of cases, excuse me, has laid out a series of factors. Four factors of the courts have looked at in determining whether a classification used by the government should be considered suspicious or suspect or quasi-suspect. And all of those that doctrinal framework is out there. This court has never applied it to the question of sexual orientation classifications. This is an open issue in this circuit because the prior precedent where the court did talk about this happened prior to Lawrence versus Texas. Those cases are no longer binding precedent given the Lawrence decision. So you say Windsor represents the culmination of the doctrinal move of the Supreme Court, court-reposition? Well, it is moving towards that position indeed, Your Honor. I think this court could also simply apply Windsor. This court could apply Windsor and say, look, there are enormous similarities between the defensive marriage act and the marriage bands here. They use the same words. The defensive marriage act said, marriage is a man and a woman. The Virginia marriage band say marriage is a man and a woman. The purpose of the acts of both of them is similar. The purpose of DOMA was to ensure that the existing marriages of same-sex couples would not be respected by the federal government. You sense in reading DOMA, I mean reading Windsor, it is, I confess that it is a difficult opinion to read and to get exactly what is being held. But you sense that the main structural thrust is that DOMA was the federal government getting involved in a very important relationship that was the domain of the states and struck it down on that basis. But that is not all that clear. That is the sense I get as to why they had the federal statute as opposed to moving it right in and regulating under the 14th Amendment state. Well, Your Honor, I agree with your Honor in the following sense that the trigger for some form of heightened review, heightened rational basis or heightened scrutiny, in Windsor was that there was discrimination of an unusual kind, which is what the court said DOMA was. DOMA was. And that is a trigger for heightened review. But there are many other triggers that have triggered heightened equal protection analysis under rational basis in earlier extreme court cases, in Roma, in Incleaver, etc. Those are, for example, in Roma, the imposition of a broad sweeping disability on a narrow class of people, which is what happened in Roma and with the Amendment too in Colorado

. One is you're right that the court in Windsor didn't give a traditional label to the level of review that was applying. It talked about careful consideration and the court could look at that as either some form of heightened rational basis review or as the Ninth Circuit did, the court could look at it as heightened scrutiny full force. But regardless of that, the Supreme Court in the series of cases, excuse me, has laid out a series of factors. Four factors of the courts have looked at in determining whether a classification used by the government should be considered suspicious or suspect or quasi-suspect. And all of those that doctrinal framework is out there. This court has never applied it to the question of sexual orientation classifications. This is an open issue in this circuit because the prior precedent where the court did talk about this happened prior to Lawrence versus Texas. Those cases are no longer binding precedent given the Lawrence decision. So you say Windsor represents the culmination of the doctrinal move of the Supreme Court, court-reposition? Well, it is moving towards that position indeed, Your Honor. I think this court could also simply apply Windsor. This court could apply Windsor and say, look, there are enormous similarities between the defensive marriage act and the marriage bands here. They use the same words. The defensive marriage act said, marriage is a man and a woman. The Virginia marriage band say marriage is a man and a woman. The purpose of the acts of both of them is similar. The purpose of DOMA was to ensure that the existing marriages of same-sex couples would not be respected by the federal government. You sense in reading DOMA, I mean reading Windsor, it is, I confess that it is a difficult opinion to read and to get exactly what is being held. But you sense that the main structural thrust is that DOMA was the federal government getting involved in a very important relationship that was the domain of the states and struck it down on that basis. But that is not all that clear. That is the sense I get as to why they had the federal statute as opposed to moving it right in and regulating under the 14th Amendment state. Well, Your Honor, I agree with your Honor in the following sense that the trigger for some form of heightened review, heightened rational basis or heightened scrutiny, in Windsor was that there was discrimination of an unusual kind, which is what the court said DOMA was. DOMA was. And that is a trigger for heightened review. But there are many other triggers that have triggered heightened equal protection analysis under rational basis in earlier extreme court cases, in Roma, in Incleaver, etc. Those are, for example, in Roma, the imposition of a broad sweeping disability on a narrow class of people, which is what happened in Roma and with the Amendment too in Colorado. And it is exactly what happened in DOMA. And is what is happening here because the Virginia marriage bands say to same-sex couples, you folks can't get married. And we all know that marriage covers a wide range of opportunities and protections and obligations in society, everything from cradle to grave and medical decisions in between. And the Virginia marriage bands say to same-sex couples, you are excluded from all of that. That is a broad sweeping disability imposed on a narrow group of people. That's exactly what in the Roma case prompted heightened scrutiny. I think that the court can apply the Roma level of review because of the broad sweeping disability and the marriage laws, because these marriage laws are unusual in a sense as my colleague pointed out, they exclude same-sex couples not just from marriage, but from domestic partnerships, silly unions or any other relationship. Also, they are unusual because this is the only part of the definition of marriage that appears in the Virginia Constitution. It's the only part of the domestic relations code that was repeatedly put into statute in 75 and in set 97 and in 2004, and then into the Constitution. So there are multiple triggers that this court could look to to prompt the kind of heightened rational basis review that the court used in Windsor. What's your view of the first circuit, Judd Ludein's approach? He described... I think he was following a little bit of the tenor of the Supreme Court, which seems to be pulling back on this classification, these levels of review and just looking at it, and I think he sort of suggests, let's look at it carefully and not pigeonhole it into rational or intermediate or strict scrutiny. What do you think about that? You wanted that, that is certainly an approach, but what I point out there is what is interesting is that Judd Ludein's opinion, the factors that he points to, to suggest that some form of heightened rational basis applies, are precisely the factors that the court in the whole range of decisions has talked about as the four factors that trigger intermediate or strict scrutiny. You think he was just a euphemism for what is already being done? Well, I think that he, I think his opinion said that he thought, and we believe that this is incorrect, that he was bound by about a bigger versus Nelson, but because he, and therefore he couldn't just use those factors to get to the heightened scrutiny question. I think that's wrong, but I think his reliance on the heightened scrutiny factors is absolutely correct, and we would urge the court to apply those factors. Do they call it heightened scrutiny, does he? No, he calls it a heightened rational basis, yeah, he does indeed. He does, but really yes. Indeed. All right, well thank you very much. Thank you, Your Honor. Mr. Rafeville. May I please the court, Stuart Raphael, for the Virginia State Registrar in her official capacity

. And it is exactly what happened in DOMA. And is what is happening here because the Virginia marriage bands say to same-sex couples, you folks can't get married. And we all know that marriage covers a wide range of opportunities and protections and obligations in society, everything from cradle to grave and medical decisions in between. And the Virginia marriage bands say to same-sex couples, you are excluded from all of that. That is a broad sweeping disability imposed on a narrow group of people. That's exactly what in the Roma case prompted heightened scrutiny. I think that the court can apply the Roma level of review because of the broad sweeping disability and the marriage laws, because these marriage laws are unusual in a sense as my colleague pointed out, they exclude same-sex couples not just from marriage, but from domestic partnerships, silly unions or any other relationship. Also, they are unusual because this is the only part of the definition of marriage that appears in the Virginia Constitution. It's the only part of the domestic relations code that was repeatedly put into statute in 75 and in set 97 and in 2004, and then into the Constitution. So there are multiple triggers that this court could look to to prompt the kind of heightened rational basis review that the court used in Windsor. What's your view of the first circuit, Judd Ludein's approach? He described... I think he was following a little bit of the tenor of the Supreme Court, which seems to be pulling back on this classification, these levels of review and just looking at it, and I think he sort of suggests, let's look at it carefully and not pigeonhole it into rational or intermediate or strict scrutiny. What do you think about that? You wanted that, that is certainly an approach, but what I point out there is what is interesting is that Judd Ludein's opinion, the factors that he points to, to suggest that some form of heightened rational basis applies, are precisely the factors that the court in the whole range of decisions has talked about as the four factors that trigger intermediate or strict scrutiny. You think he was just a euphemism for what is already being done? Well, I think that he, I think his opinion said that he thought, and we believe that this is incorrect, that he was bound by about a bigger versus Nelson, but because he, and therefore he couldn't just use those factors to get to the heightened scrutiny question. I think that's wrong, but I think his reliance on the heightened scrutiny factors is absolutely correct, and we would urge the court to apply those factors. Do they call it heightened scrutiny, does he? No, he calls it a heightened rational basis, yeah, he does indeed. He does, but really yes. Indeed. All right, well thank you very much. Thank you, Your Honor. Mr. Rafeville. May I please the court, Stuart Raphael, for the Virginia State Registrar in her official capacity. The equality of right principle that is at issue in this case is an ancient principle. What is new is our relatively recent recognition that gay people are entitled to the equal protection of the law, and that proposition is new because it was recognized in Rome and in Lawrence, and Lawrence was only in 2003. When you combine the teaching of loving and the Supreme Court's fundamental rights cases involving marriage on the one hand, with the Supreme Court's holding in Rome and Lawrence, that gay people are entitled to the equal protection of the law, the result here is ineluctable. Let me address the doctrinal issue that I think concerns Judge Neymar. The issue of how do you define the fundamental right at what level of specificity do you define the fundamental right? Virginia agrees with the plaintiffs in this case that the proper definition is the right to marry, not the right to same sex marriage. The clerk said, well what about Glecksburg? Glecksburg involved the alleged fundamental right to assisted suicide. What the Supreme Court in that case said was, well you have to have a careful description of the right and in the right there was described as assisted suicide. In the court said in 700 years of Anglo-American jurisprudence, we can't find that right. They like the historical focus in Glecksburg, but they overlook something that's really critical here. I think when you write your opinion in this case, you really need to look at the plurality opinion by Justice Scalia in 1986, which only Justice, Chief Justice, rank was joined. Maybe we should just say we passed and let the case go on. I think you obviously are going to give it your best shot and the best shot. It may be the best we can give it. Justice Scalia in the Michael H. case, this is footnote six of Michael H. He thought that the way to do process analysis was to look at quote, the most specific level at which a relevant tradition can be identified. That's really the approach you're seeing here. They wanted to find the right issue is the right to same-sex marriage. Now there's an obvious answer to that, which Mr. Olsen gave loving obviously involved the right to marry in the context of interracial marriage. If you looked at that right purely historically, it wouldn't have been upheld because it's clear that the drafters of the Fourteenth Amendment didn't think that there was a right to interracial marriage and it had been banned since colonial times. I think there's a better doctrinal answer than simply pointing out loving and that doctrinal answer that you really should look at is the discussion of Michael H. in the case decision. Case says we reject Michael H. That's the quote, it's at page 22 of our brief, but that's the quote where the court, the majority says it's tempting to suppose that the due process clause protects only of those practices defined at the most specific level and it's C

. The equality of right principle that is at issue in this case is an ancient principle. What is new is our relatively recent recognition that gay people are entitled to the equal protection of the law, and that proposition is new because it was recognized in Rome and in Lawrence, and Lawrence was only in 2003. When you combine the teaching of loving and the Supreme Court's fundamental rights cases involving marriage on the one hand, with the Supreme Court's holding in Rome and Lawrence, that gay people are entitled to the equal protection of the law, the result here is ineluctable. Let me address the doctrinal issue that I think concerns Judge Neymar. The issue of how do you define the fundamental right at what level of specificity do you define the fundamental right? Virginia agrees with the plaintiffs in this case that the proper definition is the right to marry, not the right to same sex marriage. The clerk said, well what about Glecksburg? Glecksburg involved the alleged fundamental right to assisted suicide. What the Supreme Court in that case said was, well you have to have a careful description of the right and in the right there was described as assisted suicide. In the court said in 700 years of Anglo-American jurisprudence, we can't find that right. They like the historical focus in Glecksburg, but they overlook something that's really critical here. I think when you write your opinion in this case, you really need to look at the plurality opinion by Justice Scalia in 1986, which only Justice, Chief Justice, rank was joined. Maybe we should just say we passed and let the case go on. I think you obviously are going to give it your best shot and the best shot. It may be the best we can give it. Justice Scalia in the Michael H. case, this is footnote six of Michael H. He thought that the way to do process analysis was to look at quote, the most specific level at which a relevant tradition can be identified. That's really the approach you're seeing here. They wanted to find the right issue is the right to same-sex marriage. Now there's an obvious answer to that, which Mr. Olsen gave loving obviously involved the right to marry in the context of interracial marriage. If you looked at that right purely historically, it wouldn't have been upheld because it's clear that the drafters of the Fourteenth Amendment didn't think that there was a right to interracial marriage and it had been banned since colonial times. I think there's a better doctrinal answer than simply pointing out loving and that doctrinal answer that you really should look at is the discussion of Michael H. in the case decision. Case says we reject Michael H. That's the quote, it's at page 22 of our brief, but that's the quote where the court, the majority says it's tempting to suppose that the due process clause protects only of those practices defined at the most specific level and it's C. Michael H. footnote six. And the court says, but such if you would be inconsistent with our law and they go on to say loving and turner. So that's really where the doctrinal rubber meets the road here and that's why the Gluckberg is not controlling because what Casey says is once you identify the fundamental right as a fundamental right, and in this case it's the right to marry, once you do that you are not then limited to a historical application of that right. That's why, the loving came out the way it did and that's why in Gluckberg there was no fundamental right that the court could identify. And this is a really critical doctrinal point, it's a prominent part of our brief, you don't hear a single answer to that point from either the clerks or from any of their 21 amiki. Now let me touch on the Height scrutiny question. You've heard these four factors that the court considers in determining whether to apply Height to scrutiny, but they're all getting at the same point, which is should we be suspicious of laws that discriminate on the basis of sexual orientation? And that is a no-brainer. Because it's only 2003 that the Supreme Court actually constitutionalizes the right to engage in homosexual conduct. It's clear that laws that discriminate on the basis of sexual orientation ought to be looked at with a very jaundice eye. They should be subject to at least Height and scrutiny. Let me make one point about the gender discrimination argument. I agree with Mr. Olsen that Virginia's approach here is a form of gender discrimination because whether you can marry the person you love is based on your gender and that person's gender. I'm not sure this argument gets you anywhere. I mean if the whole reason Virginia articulates you have to accept their reason in terms of this what the advance is the fact that you need a man and a woman to have a family to have a child to create the potential for a child to grow up. That's not discriminating. You don't need to have a man and a woman married. I'm not aware of any person in the world that is a product of other than a man and a woman. That's not the point you're under. The point is to the extent that procuration is the only basis of marriage that connects. Not basis. It's a political unit that is a reality that existed and they probe the advancement of society. The increase in society can only occur by the combination of a man and a woman. That's a different point

. Michael H. footnote six. And the court says, but such if you would be inconsistent with our law and they go on to say loving and turner. So that's really where the doctrinal rubber meets the road here and that's why the Gluckberg is not controlling because what Casey says is once you identify the fundamental right as a fundamental right, and in this case it's the right to marry, once you do that you are not then limited to a historical application of that right. That's why, the loving came out the way it did and that's why in Gluckberg there was no fundamental right that the court could identify. And this is a really critical doctrinal point, it's a prominent part of our brief, you don't hear a single answer to that point from either the clerks or from any of their 21 amiki. Now let me touch on the Height scrutiny question. You've heard these four factors that the court considers in determining whether to apply Height to scrutiny, but they're all getting at the same point, which is should we be suspicious of laws that discriminate on the basis of sexual orientation? And that is a no-brainer. Because it's only 2003 that the Supreme Court actually constitutionalizes the right to engage in homosexual conduct. It's clear that laws that discriminate on the basis of sexual orientation ought to be looked at with a very jaundice eye. They should be subject to at least Height and scrutiny. Let me make one point about the gender discrimination argument. I agree with Mr. Olsen that Virginia's approach here is a form of gender discrimination because whether you can marry the person you love is based on your gender and that person's gender. I'm not sure this argument gets you anywhere. I mean if the whole reason Virginia articulates you have to accept their reason in terms of this what the advance is the fact that you need a man and a woman to have a family to have a child to create the potential for a child to grow up. That's not discriminating. You don't need to have a man and a woman married. I'm not aware of any person in the world that is a product of other than a man and a woman. That's not the point you're under. The point is to the extent that procuration is the only basis of marriage that connects. Not basis. It's a political unit that is a reality that existed and they probe the advancement of society. The increase in society can only occur by the combination of a man and a woman. That's a different point. As of now, scientifically, we just don't know where we're headed. But as of now, that's a reality. And so the question is, with that reality society has addressed that as meaningful. So to say we're discriminating against a male or against a female because of their gender when we say the relationship can only be a male and a female, it doesn't make sense. You're right. I think the question is, do you apply? I'm just taking the state where it is. The question is, the gender discrimination, I don't think. I think the question is whether you apply heightened scrutiny and I think you do because there is an explicit gender classification. Now, it's conceivable you can satisfy. It's a female and a female to have a child, or to have a family. Virginia's law until 1975 applied to couples who wanted to marry. It was only 1975 that Virginia came in and said, you can't marry a person of the same sex. The point is, there's an explicit gender classification and you made this point, Your Honor, in the Fall Converses Jones case, that you shouldn't confuse the question and whether there's intentional gender discrimination with the question and whether you apply heightened scrutiny once there is a gender classification on the face of the law. That's my point. You got to apply heightened scrutiny. On the issue of states rights, I think the key aspect of Windsor that gets lost in the discussion is that the federalism argument at issue in that case was running in parallel and tandem with the due process argument. I disagree with Judge Neymar with your point that federalism was the predominant theme. When you look at part four of the decision, it's the due process argument that's the basis for the decision. You shouldn't pin my question as to any position, but my observation was simply the court didn't seem to want to have Doma around. They didn't seem to want to have a federal government getting involved into this. That's right. How the rationals they used weren't purely, I agree with you. They weren't purely the states rights. When you get to the holding, the basis, the holding is the Doma violates the equal protection provision of the Fifth Amendment. My point at the outset was that the federalism argument was running parallel to the due process argument

. As of now, scientifically, we just don't know where we're headed. But as of now, that's a reality. And so the question is, with that reality society has addressed that as meaningful. So to say we're discriminating against a male or against a female because of their gender when we say the relationship can only be a male and a female, it doesn't make sense. You're right. I think the question is, do you apply? I'm just taking the state where it is. The question is, the gender discrimination, I don't think. I think the question is whether you apply heightened scrutiny and I think you do because there is an explicit gender classification. Now, it's conceivable you can satisfy. It's a female and a female to have a child, or to have a family. Virginia's law until 1975 applied to couples who wanted to marry. It was only 1975 that Virginia came in and said, you can't marry a person of the same sex. The point is, there's an explicit gender classification and you made this point, Your Honor, in the Fall Converses Jones case, that you shouldn't confuse the question and whether there's intentional gender discrimination with the question and whether you apply heightened scrutiny once there is a gender classification on the face of the law. That's my point. You got to apply heightened scrutiny. On the issue of states rights, I think the key aspect of Windsor that gets lost in the discussion is that the federalism argument at issue in that case was running in parallel and tandem with the due process argument. I disagree with Judge Neymar with your point that federalism was the predominant theme. When you look at part four of the decision, it's the due process argument that's the basis for the decision. You shouldn't pin my question as to any position, but my observation was simply the court didn't seem to want to have Doma around. They didn't seem to want to have a federal government getting involved into this. That's right. How the rationals they used weren't purely, I agree with you. They weren't purely the states rights. When you get to the holding, the basis, the holding is the Doma violates the equal protection provision of the Fifth Amendment. My point at the outset was that the federalism argument was running parallel to the due process argument. In this case, they conflict because federalism would say defer to the state and yet we have a due process problem if you do that. Then the question is, what do you do when there's a conflict? That's an easy one because the Bill of Rights Trump's federalism and the Supreme Court tells us that repeatedly. It told us that in loving. My predecessor in loving stood up and said, for the Supreme Court to strike down a ban on interracial marriage would be the worst form of judicial lawmaking. It's the same argument you're hearing today. The Supreme Court in Windsor said, yes, states get to define rights of marriage unless it violates the Constitution. That's a page 269. I can make a distinction. It seems to me in any kind of legal analysis between a regulation that says one partner in a marriage cannot be African-American and a relationship and an argument that says two persons of the same sex cannot be in a marriage because it doesn't work geographically. It seems to me the race is benign to the biological issue and sexual two sexes is not benign to. Many officers. The discussion really goes to what is the marriage relationship as understood by the Supreme Court even at the time of loving. I respectfully suggest even the court in loving recognize that marriage between a man and a woman was a fundamental right and they had not anticipated sexual orientation and the same sex marriage. I think we have a brand new relationship that we have to look at and the question ultimately in my view is whether the Constitution really addresses that or whether we should leave it to the state. Respectfully, Your Honor, it sounds to me like you were trying to put the whole case into what the definition of marriage is and it's not a state-based definition it's some kind of extra legal definition and that's not how you should apply doctrine. You should apply doctrine and the question is what's the Supreme Court saying that marriage is the foundation of family and society. It's not talking about orientation and so forth. It's talking about the marriage between a man and a woman is the foundation of family and society. Before loving there had not been a case involving interracial marriage. The point is you got to apply doctrine. We think we win on heightened scrutiny or strict scrutiny. We also win on the rational basis test because it's simply irrational to think that denying the right to marry the same sex couples is going to make it more likely that opposite sex couples will marry and have children. This issue is compelled by combining loving on the one hand with Roma and Lawrence on the other and it reminds me of what John F. Kennedy said upon introducing the Civil Rights Act of 1963. Sometimes you look at what you've done and all you can ask is what you took you so long to do it

. All right I guess we have misdynamics. Yes or your honor. I'd like to start in my review first by addressing the arguments on doctrinal developments. I think one additional way to look at the Windsor case and to be more specific to your question earlier Judge Floyd is to look at the very last sentence of the opinion where the Supreme Court says expressly that the opinion and the holding itself both of them are limited to the situation presented to it whether the federal government must recognize what the states give them. It's specifically and expressly cabin the import of that case which was why we don't think it's applicable. The loving case returned marriage to its original common law natural state as the union of husband and wife what it was at the exception of Virginia as a colony before the the import of the anti miscegenation laws that came almost a century into Virginia's existence and so I don't think that that can be used to support the argument for same sex marriage and this is where Baker is applicable I believe to this court as if there's any question as to whether loving created the fundamental right to marry the person of your choice the person that you love Baker cabin that Baker said five years later that this does not raise a substantial federal question the Lawrence case does not still true counsel that this is not a substantial federal question still I believe that this issue is not a to the you think so it's not I don't I don't believe so I don't think the Constitution I do ignore just the line of cases from the Loch Naira down that every barrier you will that the states imposing itself in marriage have been struck down ideal procreation Griswold said no you can't prohibit married couples from deciding when or if they want to have a choice they can use you know contraceptives divorce you states can't keep people from going to other states and divided the divorce all down the line the doctorate goes on and on and on and now and all of these cases and clearly now Roma comes along you can't discriminate the question is you just can't take a fundamental right and define it if you want to take judge near my as focus on defining marriage to the point where the fundamental right of choice is unrecognizable you just put a little batch oh no no you have right to marry but no same sex marriage is not fundamental I think the way to look at all of those cases judge Gregorio when we talk about Griswold we want to talk about Sublokki or Turner is that all of those were state imposed restrictions on the fundamental right to enter the union of husband and wife it limited the liberty of the right to enter into the union of husband and wife and the supreme court rightly said you cannot limit the husband and wife union the argument here is not that the marriage definition limits it they want to go beyond didn't say husband and wife has said marriage every case judge Gregory has been a husband and wife because of the facts but like I said it's Council was before he set down I mean there wasn't a case about interracial marriage until loving but but if we look if the court applies Kluxberg which I do think is is appropriate and we have a concrete description that is deeply rooted in the history and tradition is Justice Kennedy set himself at the outset of the Windsor opinion that it was not until recently that the idea of same-sex marriage was even up on society so we cannot make the argument that same-sex marriage or the right to to genderless marriage is deeply rooted it just doesn't stand I don't think Lawrence advances the argument here because Lawrence expressly said it limited the holding there and said that this does not apply to any relationship that the government must confer recognition on so there's an express limitation there and Romer much like Windsor is unique and it's unique in this way in that Romer and Windsor dealt with something brand new it had never before been seen the Romer was in a unique law of an unusual character the state had never done that before in Windsor the federal government had never not deferred to the state it was something that popped up out of left field and the Supreme Court said this is unusual and it's unique and it carefully scrutinized that law that argument cannot be made about Virginia's marriage laws this is nothing new Virginia's marriage laws have been the union of one man and one woman for over 400 years the recent enactments did not change that substance and because of that tradition doesn't get you that counsel I'm not contending you are you saying because you 400 years and you said that's the justification the point is you're saying that it's procreation that drives this and child center you don't claim tradition in 400 years that's a context but the text of your argument is that it's child centered in procreation and you would agree that same sex couples can have children you agree they're not the same way that obviously it doesn't make children a children it makes it different oh you're making a difference in terms of children a children of a lesser God I mean what are you talking about the question is can they have children yes or no not the same way okay I would say no with the qualifications to a couple who adopts you would say well you can have children but not the same way as someone who had a biologically what does that mean it would make no sense with it it furthers the state making a sense under the law of Virginia that you would say you're an adopted child as opposed to you by you're different is that difference make a difference in the law in Virginia it does it not just in Virginia multiple states once you adopted does it make any difference under the laws of Virginia answer that question I'm sorry with regard to adopted does it make any difference whether you are the product of a conception biologically of your parents or your adopted but does it does it does it but the state's interest I guess you're not going to answer my question I am I'm saying it's not my question is there any difference under Virginia law once that status is reached once the status of adoption is reached yeah doesn't make you or a legal parent let me answer this judge wait judge Gregory it generally does not but the state's interest in adoption and marriage are are completely different um they're starting a lot of children in Virginia waiting to be waiting for foster homes waiting to be adopted if you care about if you care about children you want to have more marriages so the potential they they'll have homes for foster it really this in general isn't it really in terms of your interests and children isn't I don't agree with you judge Gregory and I believe that those are good questions then why is it different in terms of a same-sex couple having children by adoption or foster children on those on they families they've just nearby talked about in the show that was the sacred about a marriage are they families same-sex couples do not further the state's interests in the same way that opposite sex couples do but as long as they get to the objective of having wholesome homes and families and children what difference does it make that's the essence of your rational basis and let me answer that specifically because the state of Virginia believes that the essence of the family does include both men and women the state of Virginia believes in his policy and his affirm this throughout that gender diversity is essential to its understanding of the family it doesn't prohibit other people from forming other kinds of families and other relationships there's a job to figure out whether to give you or judge Gregory a ticket you know otherwise been read my apologies just me I want to let judge Gregory continue as long as he finishes line of questions thank you just yeah I'm I'm trying to have you recognize that you're on borrowed time and it's along as judge Gregory has a further question I'm requesting you answer it okay in loving when they went into their home in 1958 in the middle of the night flashlights and arrested them convicted them and sentenced them even probation on the condition they don't come back together for 25 years how long Virginia asked the same sex couples to come back how long to wait will they come back to Virginia same sex couples do not exist under the same criminal threat of criminal prosecution that interracial couples did and there's a difference between saying that something is criminal and we will prosecute you and the state saying promoting a certain policy while allowing the other things to exist in Virginia does that after law is to Virginia move those stacked is off the book about side of me I can't I can't answer that judge Gregory but the Virginia does not prosecute or or exist with a threat of prosecution I don't think that the Lawrence case has application here because of the express right of the animal in terms of Virginia no and this is my point about the the age of the laws judge Gregory is not that I'm arguing tradition I'm arguing that there cannot be a credible argument made that Virginia's marriage laws came into existence because of animus 400 years ago the argument cannot be made that the laws were defined as one man and one woman because of an unconstitutional animus against gays and lesbians as Justice Kennedy recognized this is a new thing upon us so the argument that the laws are unconstitutional because of animus simply just doesn't hold given the facts and the history of the marriage laws I'm not asking you to say they're constitutional because they're old thank you very much you a misdynamics I I this is obviously an important issue and I want to thank counsel on all sides for your very elegant and eloquent arguments I also thank the many people the audience which is very full here today for the demeanor the respect showing to the court we will come down and greet counsel as is our tradition and then take a short break this honorable court will take a brief reces