 2 p.m. Eastern. That's on C-SPAN. The Senate takes up the supplemental spending bill after the House passes it. That debate expected Tuesday. Also a bill reauthorizing defense programs and setting military policy. Senators meet Monday at 2 p.m. Eastern. Live coverage on C-SPAN 2. Marriage is the most fundamental institution of civilization. And it should not be redefined by activist judges. You are here because you strongly support a constitutional amendment that defines marriage as a union of a man and a woman. And I am proud to stand with you. This is C-SPAN's America and the Courts. Earlier this week, the U.S. Senate rejected a constitutional amendment banning same-sex marriage. Next oral argument on same-sex marriage from New York's highest court. They'll decide whether gay couple should be allowed to marry in the state. Currently there are legal challenges to same-sex marriages in 10 states. California, Connecticut, Florida, Iowa, Maryland, Nebraska, New Jersey, New York, Oklahoma, and Washington state. This week we'll hear from attorneys arguing for gay marriage. Next week you'll hear arguments against. Judges of the court. Hear ye, hear ye, hear ye. All persons having any business before this court of appeals, held in and for the state of New York may now draw near. Give their attendance and they will be heard. Hernandez against Robles. Ready for court, please. Samuels against New York State Health Department. Ready for court, please. Matter of Cain against Marseille. Ready for court, please. Seymour against Holcomb. Ready for court, please. Esomer. Good afternoon. Good afternoon. May it please the court. I am Susan Summer of Lambda Legal and along with the Kramer Leavens firm, counsel to plaintiffs in Hernandez versus Robles. If I might begin by giving the court a brief roadmap of how the court counsel for plaintiffs appellants in the four cases before you today plan to divide argument and principal focus on the main issues. These cases brought on behalf of a total of 44 same-sex couples from around the state. Present the same essential questions. Whether the New York State Constitution's guarantees of due process and equal protection, permit the government to harm New York's thousands of same-sex couples and their children by denying them access to one of society's most valued and important institutions, the state-created institution of civil marriage. I intend to focus on why New York's restriction of marriage to different sex couples violates the fundamental right to marry guaranteed under the New York State Constitution, requiring that that restriction be subject to strict scrutiny. A standard defendants haven't even suggested they could meet. Although higher scrutiny is required on this end, as will be argued, other bases, Roberta Kaplan, counsel to the Samuel's plaintiffs, will focus on why the government justifications offered in these cases for prohibiting same-sex couples from marrying can't satisfy even rational review. Richard Stumbart, counsel to the Seymour plaintiffs, will focus on why the marriage restriction should also be subjected to heightened scrutiny because it wrongly discriminates on the basis of the sex and the sexual orientation of these lesbian and gay plaintiffs. Because the defendants don't even try to satisfy higher scrutiny, the marriage restriction violates equal protection as well. Finally, Terence Kinlan, counsel to the Kaen plaintiffs, will address the profound harms inflicted on the plaintiffs and thousands of others like them because they are denied the protections for their families and standing that our society confers only through marriage. Ms. Stumbart, just to be clear, the argument will be solely a constitutional argument and solely a state constitutional argument. You do not argue for a reading of the statute that supports your view. Your Honor, actually Mr. Kinlan intends to address that point. He will explain that the only appropriate remedy is to grant same-sex couples full marriage rights, which he will argue, can be done as a matter of statutory construction even without reaching the constitutional questions raised in this case. And Ms. Kaplan and I asked to reserve 10 minutes each for rebuttal following the defendants' arguments. If I might then turn to the fundamental rights point. Plaintiffs in these cases seek to exercise a well-settled, long-recognized fundamental right. The right to marry, which implicitly includes the autonomy to marry the person of one's choice. The decision whether and whom to marry is among life's most mentis, decisions, to enter into one of life's most intimate, significant, and sustaining relationships with one other person that you love. A relationship that the state supports and sanctions in a myriad of tangible and intangible ways. Can I stop you there for a moment because you define the question as the right to marry and your adversary defines the question as the right to same-sex marriage. That's a critical distinction, is it not? It is a critical distinction and we argue that the defendants and the courts below ask the wrong question and misdefine the right at stake. This definitional ploy shouldn't deter the court from recognizing that the fundamental right to marry protects something universal. It derives from the protections for personal autonomy in intimate and family matters that the Constitution safeguards for all adults, central to the promise of ordered liberty. Well, how do you know which is the right question? I mean, in Washington against Glucksburg, the appellant said, I guess it was the respondent said, it's the right to die and the court said, no, that's the wrong question. How do you, what is the criterion for selecting the definition? Well, in this context, in Washington versus Glucksburg, the court was grappling with whether there is a fundamental right at all. Here there's been a long settled fundamental right to marry that's been well recognized. There's a difference between considering who same sex couples have been historically excluded from that right and whether there's a right in the first place. The individual's interest in autonomy and the ability to make choices about personal and family life that are central to what is protected by the fundamental right to marry is protected for all of us, including for same sex couples, for lesbian and gay individuals. So that's presuming that the use of the word married in fundamental right to marry carries a certain meaning then? It's just historically it would not have embraced same sex couples. But again, this court and the U.S. Supreme Court have never focused on whether a fundamental right that has been generally granted can be restricted only to those who historically were permitted to exercise that right. If there was historical discrimination that excluded one word. Isn't it all, I mean isn't it a verbal ploy on both sides? Isn't it all how you manipulate the words? That is, you could have, couldn't you do the same thing in Washington v. Glucksburg? You could say, well, you have a fundamental right that you've given to people who want to refuse life sustaining medication. Why can't you give the same right to people who need life terminating medication and say you're excluding some people from the exercise of the right? Isn't it all in how you phrase it? Is there a real difference? Your Honor, I believe that what's important is to consider what the courts have considered protected by the fundamental right to marry in the first place. The courts have protected the core components of a liberty interest in autonomy in this realm, the freedom to find love with another adult, companionship, a harmony in living, family, intimate connections, intimate bonds, as opposed to the situation in Washington v. Glucksburg where the court had to figure out in the first place, what was the fundamental right being sought? Well, the court had already said that there's a, had already said, or some people understood it to have said that there's a fundamental right to die with dignity. Then they said, but not if you need somebody to help you. Is it fundamentally different to say there's a fundamental right to get married, but not if it's the same sex marriage? Well, I do think that there's an important distinction. I mean, here there is a fundamental right to marry that does describe and support the same interest that lesbian and gay adults have in forming committed bonds with another. In contrast, in what case best supports your position that there's a fundamental right of gays to marry? Cases that support that there's a fundamental right to marry and that it should not be defined to exclude gay people would include from this state jurisprudence people versus an off ray, Cooper versus Marin, their important US Supreme Court precedents as well, loving versus Virginia, Zablaki, Turner. As any court said, there's a fundamental right of gays to marry. Yes, there are a number of courts around the country that- As any high court stated that and if so, which? Your Honor, they so far have been lower level courts and we have the descent of justice sacks. This is a question that this court needs to resolve, needs to resolve under New York State jurisprudence. What exactly are you requesting this court to do? We're requesting this court to give declaratory and injunctive relief requiring that New York State make the civil institution of marriage available to same sex couples and all the attendant legal rights and protections that come with marriage on the same terms available to all others. And the court can do this by ordering a gender neutral construction of the domestic relations law and laws that regulate marriage in the state. In defining the fundamental right to marriage, is it your position that we pay no difference to historical meetings at all? Excuse me. Well, not necessarily. History and tradition have been important touchstones in defining what is a fundamental right in the first place and that is why the right to marry has long been identified as a fundamental right. But where history and tradition shouldn't be used as a straight jacket is when it comes to figuring out who should be entitled to exercise a right that's part of the liberty and the birth right of all of us. We should not turn to history and tradition if it's been a history of discrimination and exclusion and there are a number of cases that illustrate this. So we should pay no attention to or we should not, the history shouldn't be just positive here even though the history hasn't included same sex marriage. That's right. And if it were otherwise then we would not have a right of lesbian and gay individuals to intimacy and to make decisions about their personal relationships. So what is the history and tradition that we look to? You're not saying we don't look to history and tradition at all? Correct. I think it would be fully appropriate for the court to look to the history and tradition that has said there is a fundamental right to marry that protects an individual's autonomy in freedom of choice to make bonds with another in this realm, this intimate and family realm. And then the court also can certainly look to history and tradition of cases that have demonstrated. We have that history here in our court. We have a history of allowing for adoption in matter of Jacob and redefining family and Brashi and Levin case etc. So we've established our own jurisprudence in the area of gay family life. That's exactly right. I mean another element of history and tradition that the court can look to is the respect and recognition for same-sex couples and their families that this court has shown through cases like Brashi and Jacob and Dana. I'm sorry didn't mean to interrupt you, continue. And that the state of New York has shown in other ways in respect for the rights of same-sex couples or lesbian and gay individuals to be foster parents to adopt domestic relationship laws and a respect and awareness that lesbian and gay individuals form families no different from others. Why isn't this a legislative matter? Well it would be wonderful if the legislature tomorrow would declare statutes that open marriage fully on the same terms to same-sex couples. But it hasn't and the legislature is thereby depriving lesbian and gay individuals in New York of their rights to due process and equal protection at which point this court's paramount role as guardian of individual liberties steps in. What do you contend the legislature has refused to do? The legislature has refused to enact legislation that affirmatively allows same-sex couples to marry. You speak of the fundamental right to marry, are there any limitations on that? Of course there are limitations with the fundamental right. Once a right is identified as fundamental the government first of all can still impose incidental burdens and beyond that the government can impose restrictions on that right if it can demonstrate a compelling government interest and that the restriction is narrowly tailored. Here the government doesn't make any effort to satisfy its burden and clearly the restriction would have to fall. If we were to find a fundamental right to marry a person of one's choice then how do you maintain say bigamy statutes or any of the other restrictions that we have against group marriages? Nothing in this case will decide one way or another whether a claim to polygamy is one that establishes a fundamental right and has to do- So does that imply that a claim to polygamy would be open if we decide in this case? No it implies actually the contrary that it would not change. The status of a claim to polygamy- What is that status in your view today? Well there is actually a 19th century Supreme Court precedent that upheld polygamy but it's not an issue that is visited- But you can see that that's still good law? It's a federal case so it probably is a good law. You're giving me something other than a flat yes to that question. It sounds to me that in your mind whether there's some doubt as to whether polygamy can be prohibited. Your Honor first of all I think there are two parts of the equation if there should ever be a claim to polygamy and I just want to point out to give a little historical context that the same argument or questions about polygamy were raised in the context of challenges to anti-miscegenation laws and both the Perez case in 1948 and loving- Yeah there wasn't the response at that point no don't be ridiculous polygamy is illegal and will still be illegal and I'm sort of fascinating about the fact that you seem reluctant to say that. Well first of all your Honor I think the response was we will focus on whether there's a fundamental right to marry that's being wrongly deprived from the litigants before us. And you're requesting a gender neutral construction to our existing statute. Our existing statute only allows marriage of two people. It also prohibits bigamy prohibits incest etc. And you're not looking to to change any of those limitations. Absolutely not. I guess though if we're declaring a fundamental right to marry we would like to be sure that we're not opening up all of these other possibilities. What is your answer? I completely understand that your Honor. First of all I would say that there are two levels of the analysis that some future court would have to do. One is whether they're whether the fundamental right to marry independence and making that choice applies when you're choosing to marry multiple people. And two if so whether there's a compelling government interest that the government can come in with. I think it's pretty easy to hypothesize that the government would come in if there was ever a challenge to the restriction on numerosity in marriage and say that indeed there are a number of interests that the government might assert were compelling that are simply absent here. Here the marriage restriction is the only vestige basically of sex roles that have long been understood to be inappropriate to confine people's liberty within marriage. Does the position you're taking have any implications for the age limitations of marriage? I suppose the state says that the one state says that people can't marry if they're under 60 and the other says it's under 17. And as you interpret the constitution would those have to survive strict scrutiny? Your Honor, I think first of all they might have to survive strict scrutiny and I think they probably could. There are lots of strong reasons. How can 17 survive strict scrutiny if the state next door allows 16? Well, but beyond that as I said the government can still impose incidental burdens on the right and a delay of a year may be possibly viewed. Again, this is not our case may be viewed as an incidental burden. And there are also a lot of significant government interests that might be taken into account in allowing some more leeway there between a 16-year-old and a 17-year-old where the government is very concerned about consent and making sure that it is a mature decision to exercise the independent decision and autonomy to enter into this special relationship with another. So another argument that the defendants in the court below I think significantly rely on related to some of the questions today it has to do with appropriation. They assert that the right to marry is fundamental because of marriage's connection to procreation and that only male-female couples with the potential to procreate sexually together are guaranteed the right to marry. And I'd like to respond to that at the outset to the extent that the interest in marrying the person between you brought children into the world with whom you're parenting your children may bear on the right to marry plaintiffs certainly share that interest. For example, plaintiffs Lauren Abrams and Donna Freeman Tweed want to marry in part to help secure the future of their two young sons who were conceived in the relationship through donor insemination. But the argument that procreation is essential to the fundamental right to marry ignores the relevant case law particularly since Griswold versus Connecticut established that married couples have the constitutionally protected right not to procreate but are no less married for having made that choice and ignores the marriages about much more and why it is protected as fundamental. So Judge Smith asked you a few moments ago about other state high courts it's only the state of Massachusetts is it not that has found this fundamental right that you are urging upon us? That's right the Massachusetts court in in the Goodrich case certainly had an analysis that identifies a strong and profound and someone say fundamental right to marry. Should this be a concern for us the other 48 states? Yeah I don't believe it should be a concern because this state is guided by what its own constitution requires and that is the mandate for this court as well and I believe that the my co-counsel will be addressing a uniformity argument in a moment or two but what's really important is for our state's guarantees to prevail for these plaintiffs living here in New York. Have we found any fundamental rights beyond what the federal government has established in any arena outside of criminal law? Well yes Your Honor there are several for example the Rivers versus Cats case which upheld the fundamental right of involuntarily committed psychiatric patients to refuse psychotropic medications in people versus an off-ray that this court was 23 years ahead of the U.S. Supreme Court in identifying fundamental rights privacy that shields the sexual relations and intimate bonds of unmarried people including lesbian and gay men and it wasn't till Lawrence versus Texas. That was a criminal case. That's true Your Honor although I would I would just like to point out that the criminal prohibition on sodomy had severe impacts in the civil realm and I think it's as the Lawrence Court pointed out it was very important to lift those barriers to make sure that lesbian and gay people could enjoy full share of civil rights. What role does procreation play in marriage? Well procreation is certainly something that can be important for some couples and can motivate or animate some of their decision for why they want to marry and choose to marry but Is it not part is let me broaden it from procreation to children are not children part of the reason a large part of the reason why the state gives a special status to marriage? Children are certainly a part of the reason but I Will you go for a large part? Perhaps. I will point out that my co-counsel will be addressing that in a moment on the end of why there's not even a rational basis for denying the right to marry but to respond to your question I think it's important that to observe that there are many features of what's protected about the fundamental right to marry that don't relate to child rearing or procreation and one need consult a married couple that's childless to you know see that very quickly we protect I guess my question is really not so much why are there aspects that are protected aspects other than children of course there are but is the the I mean you you you make the point that the state gives lots and lots and lots of benefits to married people that it doesn't give to single people isn't the justification for that in very large part to preserve the proper to preserve what the legislature could deem the right environment for the beginning and raising of children I definitely that is a significant part of what's protected and it's something that applies just as well I'm asking what's the reason for the it's a different question what is the reason for the special status the special advantage is giving to me given to married people why to married people why do married people pay lower taxes than single people why is that rational what justifies that I believe you're in it that it's it's a total it's a number of circumstances it's a desire on the part of the state to honor and protect the relationship that two adults enter into and any children that may come in that relationship but there are many features of what's protected by New York's marriage laws that that don't directly in in any way relate to children and are important to couples that don't have them but beyond that as long as you're on that subject how would that be how would that relate to same-sex couples that interest in in raising children that beyond that it is an interest that is fully shared by same-sex couples I mean this court recognized in the Jacob and Dana case that there are thousands of children being raised by same-sex parents who need the protections for their families that that Judge Smith mentioned every bit as much as others and there's not even as Mr. Capitol will explain not even as you understand the Jacob and Dana cases do they say I mean they clearly say that same-sex single people in couple that same-sex couples and homosexual single people can adopt do they say that there can be no preference for for opposite-sex couples that is if if if if two couples want the same baby and they're otherwise identical but one is the same-sex couple the other is an opposite-sex couple is that a violation of the constitution to say it's better to give the kid to the opposite-sex couple well I think that Jacob and Dana case does say that any desire to preference heterosexual families over homosexuals families or gay families would be inappropriate and so so as you as you read it as you as you you understand New York law adoption by same-sex couples is not just permitted but is on an equal footing with with opposite-sex couples yes I see I see nothing and certainly if we decide you're away in this case that would if there's any doubt about it we would resolve it in this case by deciding by deciding in your favor I see nothing in New York law to suggest otherwise and it's not not been the policy of this state the defendants themselves concede that uh lesbian and gay adults same-sex couples are every bit of spit parents I do see thank you miss summer yes I noticed it too thank you miss Kaplan thank you miss some good afternoon your honors afternoon my name is uh Roberta Kaplan I'm from the Paul Weiss firm I together with the ACLU in the New York Civil Liberties Union represent the plane or excuse me the appellants in the Samuel's case which came up through the third department the Pell Division third department and your focus is what my focus is rational basis and I'm going to explain exactly what I'm what I'm here to do my job is to explain to your honors this afternoon that neither the state nor the city of New York can justify the exclusion of same-sex couples from the institution of marriage now are there are several avenues by which you can reach that conclusion all of which we think you should but let me kind of explain the decision tree uh the the obvious threshold question here is what what level of review the court should apply our answer is that the court should apply heightened scrutiny for three reasons first as my colleague heightened but not strict scrutiny high probably heightened scrutiny uh Judge Smith yes where is my judge sex applied in his dissent in um first department correct okay so why do you draw the distinction between strict and heightened because I believe it's strict scrutiny for the most part I know I couldn't swear to it on a book but for the most part has been reserved for racial discrimination um so first it's heightened scrutiny because there's a fundamental right second of all uh it's heightened scrutiny because the drl provisions adhere discriminate on the basis of sex third is heightened scrutiny because the drl provisions discriminate on the basis of sexual orientation all right can you go excuse me you're going to discuss uh discrimination on the basis of sex basis of gender I'm not I was just about to get there those latter two arguments the just a heightened scrutiny argument two and three will be addressed by my colleague mr stumbard okay what I'm here to explain is that the court doesn't really even need to reach the heightened scrutiny argument if it chooses not to and the reason is is because the exclusion of same-sex couples from civil marriage in the state fails even the lowest level of scrutiny under either the equal protection or the due process clause which is called a rational basis review indeed if this court acts in accordance with the precedence it has before this court like people be libera people fee it via no freight and men v oyster bay we believe that you will conclude that the exclusion of same-sex couples from the protection of civil marriage does not satisfy even rational is it is it rational could a legislature rationally conclude again applying the low standard which you say is lower than should be applied could a legislature rationally conclude that on the whole it's preferable for children to have a mother and a father rather than two mothers or two fathers answer that question two ways first of all I believe that no legislature could do that I believe that the scientific evidence that's come in in this case it's American Psychiatric Association American Pediatric Association American Association of Social Workers all is universal based on peer reviewed scientific evidence that there's absolutely no difference in terms of is it that there's absolutely no difference or that the or that no difference has been proven and now the I read the the APA brief all it seemed to say is that there's no evidence no scientific evidence of a difference which is is different from proving there's no difference at all I believe that the scientific evidence that is in some of the amicus briefs Judge Smith actually show that as far as the studies that have done based on peer reviewed competent evidence the way the children are just there is no difference but what's what's the best study showing there is no difference I believe I think the easiest thing to look at is the American Pediatric Association statement on this I mean who would know better well I I I'd rather look at a study than a statement but if I want to look at a study what's the best I you know I will have to I'll have to get you that on Roboto because I don't have an evidence of my fingers but there's a second answer to your question which is even if another state could make could reach that result and I'm not willing to concede that it could and it would be okay or appropriate but assuming another state could do that this state can't reach that conclusion and the reason is as you discussed a bit with Ms. Summers previously in this state there is a clear policy that there is no difference you we are sitting here in this court today with the the lawyers for the largest city in the city in the state of New York the city of New York obviously we are sitting with the lawyers for the state of New York and in their briefs they make a very clear concession one that children in this state are raised in same-sex families all the time two the same-sex couples are good parents and three that there is no policy in the state of discouraging in any respect same-sex couples from having children but but none of those three things say that I'd say that same and opposite-sex couples have to be treated identically it's different to say that we don't discourage same-sex couples the same-sex couples can be fine parents well I disagree with that judge because if you look at the analysis that you did in the you know Fray and the McMinn in the other cases where you looked where you're doing rational basis review quite clearly and you're looking at the people the class of people who are excluded from the statutory protections in those cases you concluded that they weren't rational and I have to tell you the reasons in those cases were a lot better than they are here given the state of the scientific evidence and given the concessions made by the city in the state with respect to same-sex families there are children raised in other kinds of family constructs you could have siblings two sisters who are raising the children of one of the sisters and the legislature hasn't afforded those individuals all the same rights as as a married couple and they may have lived together for more 50, 60, 70 years perhaps but without a sexual relationship but one of them had children and are raising children is that was the legislature denying them due processor or equal protection and denying the benefits of marriage as well no first of all it can't be so what what makes this different it can't be let me it's a good question let me try to answer first of all in due process uh there clearly that what there would not be no fundamental due process right there because I don't think anyone can really believe that a relationship between two sisters raising children is anything like the relationship between the appellants the same-sex couples here so it's just fundamentally different I think we can all the sexual component makes it the intimacy level makes it different the relationship of having someone in your life choose what's going to happen when you're on an operating room table and whether the doctor should perform a heart attack how you will be buried how you want to spend your finances whether you want to buy a house together how what choices you want to make about your children physical intimacy all those things I agree that sister sometimes share those but I think we can agree that for the most part the nature of that relationship is fundamentally different so I don't think the process would be implicated why shouldn't the legislature deal with all of those matters instead of this court what is the basic reason why it cannot do so a couple reasons number one uh the cases there are a lot of cases cited by the other side about that you should defer to the legislature I'm sure you're familiar with those cases to the letter your honor every single one of those cases the Dalton case the Port Jefferson case they're all about economic regulation welfare regulation things of that nature we're frankly deferring to the legislature and legislature experimentation is perfectly appropriate are you arguing that we're arguing that there is no difference to the legislature outside the economic realm social policy issues can't be determined by the legislature they have to be determined by us no no no no we're not it's deciding whether it meets the rational basis test but it under you're not saying that we have a power equivalent to the legislature to decide the contours of marriage are you know what i'm saying is that under this court's jurisprudence and matters involving how new yorkers structure their families how new yorkers structure their personal relationships this court applies the rational basis test with special care and it looks very carefully at the rationales that have been proffered by the legislature or proffered by the state in the case of a case like this and it looks to see not only whether including people in the classification meets whatever interest is being asserted but it looks to see whether excluding a class of people and you would you would acknowledge that when we do that we do that with some degree of deference for the legislature i think that if you look there's always deference to the legislature i think if you look at your decisions in enofre and mcmin and liberta this court i don't think there's any escaping a judge smith looks very very carefully at the justices let me give you an example in um people versus enofre which is the sodomy between consenting adults case one of the there was a marital exemption in that statute so people who were married could engage in sodomy and it wasn't illegal and people who weren't married couldn't the state in that case very similar to the state here said that an interest in that exemption was promoting marriage promoting marriage this court took a look at that exemption look at that justification and said it didn't make any sense because there was no reason why excluding unmarried people from the ability to engage in sodomy promoted marriage for anyone else the exact same reasoning applied to the facts and the rationales here means that the justifications that have been offered can't survive rational basis but it sounds almost like you're asking us to apply a heightened rational basis i i don't want to put words into the court's mouth judge read and i can't you've never characterized exactly what you do in those cases but it's clear that what you're doing in those cases is something different than what you're doing in the dalton cases in the port jefferson cases etc and there's frankly a reason for it because when it comes to issues like this about how new yorkers live in macmillan about whether people had to be related by blood to live in a particular neighborhood when it comes to issues about how new yorkers structure their personal lives this court looks very carefully very carefully to see whether the rationales that have been asserted meet the task and make sense and it just doesn't simply defer it doesn't rubber stamp the way i would put it the legislature and there's a reason for that too why is marriage essential why can't there be a union um suppose we said to the legislature have a union across the state and not just in a few cities why wouldn't that solve the problem well i'm not gonna i'm not gonna kid anyone in this room judge smith if all the protections that are afforded to couples who marry are afforded to same-sex couples and it's called civil union i'm not going to lie to you a significant degree of equal protection issues would be resolved by that i don't deny that however there is also a line of cases that talks about treating people as second class citizens it comes up most recently in the vmi case supreme court's decision where it was talking about virginia wanted to have a school for women that was going to be separate and the supreme court said no no no no when it comes to discrimination you can't treat someone else as a second class citizen so is this an argument for civil union or not i don't know it's an argument for marriage for precisely that reason judge k because i think if you were to grant civil unions here what you would do is be saying to to gay men and lesbians and more importantly be saying to their children that they are second-class citizens and that is something this court has never done why would they be second-class citizens because of the uh word marriage and civil union exactly why would they be second-class i think that's why jit smith i think that that the word marriage is there's some of this in the record below um some of other clients in the samuel case had tried to put together all kinds of uh regimens and contracts so that they would have medical proxies for each other and while it wasn't civil union they did everything they could contractually to make sure that if one was sick and in the emergency room the other person would be consulted and they didn't work they didn't work because marriage if you walk into a room and tell someone you're married to someone that for all the reasons miss summer explains can note something in our society in our culture that civil union doesn't even if you were to direct legislature to um enact civil union legislation there are many benefits that could not be enacted by the state legislature which would which um now when you were to to a married couple federal benefits for example um so wouldn't really be it wouldn't be a total uh that is true if we win this case and walk out of this courtroom tomorrow would not be a total victory i don't deny that the federal law as of today as of the current state of law would not allow these rights but again kind of goes to the you know formity argument judge super this court has never accepted the fact that another jurisdiction whether it be another state or the federal government treats its constitutional rights differently is a reason for new york to follow after all this is a state that has a proud and distinctive tradition of interpreting its state constitution in matters of import to new yorkers in ways that are different so i don't think that that alone would be a justification and it really goes to the uniformity points that have been made in addition to that frankly there is no uniformity in new york's marriage law new york as we all know is one of the few states in the country that doesn't allow um no fault divorce uh first cousins are allowed to marry in new york so it frankly is incredible for the state to come in now and say we want there to be uniformity in the marriage law there isn't uniformity to the extent that you were trying to get uniformity only with respect to the treatment of same sex couples that while it might be a legitimate interest wouldn't be possible because the neighboring states vermont massachusetts new jersey connecticut all to some degree of half statewide protections for same sex couples miss kaplan have uniforming i'm sorry excuse me i'm as part of your part of your argument that the on rational basis is part of your argument that the domestic relations law is hopelessly over inclusive and under inclusive exactly that's a separate argument from the one you've been making no i think you have to as to each interest i think you see it both best probably in procreation or an accidental procreation let me kind of explain that argument that first of all there's the argument about procreation itself you've dealt with that a little bit with miss summers clearly as this court's recognized in jacob and dana and as the new york legislature has recognized same sex couples throughout the state are having children it's good for those couples to be married the state concedes that it would be good for those children for their parents to be married the state concedes that so given the kind of fit that's required in the no fray liberative men procreation in and of itself doesn't work so then you get to accidental procreation which is the latest variant of this this argument what that says is because only heterosexuals can accidentally procreate or procreate with minimal planning although i have to tell you i'm not sure i understand what that means but accidentally because only straight couples are in that situation then it's okay for only straight couples or straight families to be afforded the protections of marriage but that suffers from the same flaw because if you have to look at who's not included which are your jurisprudence in fact you did it recently judge sparrick in the leaven case your jurisprudence requires you to do then there is no you're not helping any children anywhere in new york by excluding same sex couples for marriage and in fact given the state of new york policy given the fact that so many same sex couples exist in the state that it would be good for them and good for their children i think this court could only conclude that drawing the line to keep straight families in and same sex families out is irrational has been mentioned miss kaplan by the way how many same sex couples are there in new york state and children of same sex many thousands uh judge i don't have the number the tip of my hands and frankly there's a lot of under reporting that goes on it's one thing to publicly announce that in in grenich village in new york city where i live it's another thing to do in other parts of the state has the legislature refused to deal with the same sex marriage issue and if you say yes how have they refused my understanding just meant is that a number of bills were submitted have been submitted to the legislature i know there's a bill to do away with marriage altogether i know their bills actually frankly there's been some incremental very piecemeal steps to give medical visitation i know there's legislation pending about choosing what happens to someone when they die the problem with that let me give you the best example why that doesn't work here matter of valentine is a case that was decided by the third department that case involved two men who were domestic partners uh one of whom i think was a steward on the american airlines plane that crashed just after 9 11 out of far rock away and the third department held that because those two gentlemen were could not be married to each other the surviving partner could not recover uh anything from the airline any kind of wrongful and any kind of a wrongful death action what's so arbitrary and capricious and why this is not appropriate for legislative experimentation is had that gentleman died on 9 11 had he died a couple weeks earlier and in the world trade center on 9 11 his spouse would have gotten full benefits well that doesn't mean there are an awful lot of people who are getting who do a lot better because they died on september 11th and another and i mean september 11th was sui generous wasn't it i mean the the the the country is full of people who who died in in tragic circumstances who didn't get the kind of benefits the september 11 survivors got it was sui generous your uh judge smith and it was sui sui generous because on 9 11 even even the people who on this in this country who are opponents to same-sex marriage including the federal government by the way even they realized that it was so unjust to deny these kinds of benefits to same-sex partners that because of 9 11 they granted it but they only granted it on 9 11 so only if yours is a true is a general proposition that whatever benefit was granted on 9 11 is required by the Equal Protection Clause to everyone else i don't know but what that what the point shows judge smith of course is that this is not the kind of situation where experimentation is okay you know it doesn't make sense for the legislature to pass a statute that says it's okay for gay couples to decide what happens to their partner when he has a heart attack but not where his partners remains if he doesn't survive the heart attack should be buried so that does that's irrational what about the reverse in terms of legislation have there been attempts to to ban gay marriages that have been in other states no no no in our legislation absolutely not and that goes i haven't touched it yet that goes to the last point well that also goes to the morality point you can't really make an argument in new york that morality first of all i don't think you can ever make an argument that morality standing alone is sufficient under the rational basis test suppose we agree with you what follows we say okay you've got to give a marriage license gays can be married what will be the result the practical results of that there's an excellent brief on that judge smith that i would refer you to as filed by the gay and lesbian advocates and defenders in massachusetts and they talk about what happened in massachusetts after the good rich i'd like to know what will happen here well what do you contend will happen what i would say is exactly what's happened in massachusetts which is basically nothing there's nothing that's been seen as unusual about this there's not people riding in the streets in the commonwealth of massachusetts there's not a breakdown of civil society in massachusetts and there surely isn't a breakdown of marriage in the commonwealth of massachusetts it's been treated like anything else the state uh the efforts to have a state constitutional amendment in massachusetts appeared to have died public opinion is overwhelmingly in favor of what's happened there so i i would say the same thing what are the numbers in massachusetts i mean what is there bigger in massachusetts than a new yes how many gays have uh uh gotten married as the result of um that case my my co-consult has been gracious enough to write on a piece of paper eight thousand couples and numbers would have never been how many will get the voice of this capplin my light's on so yes thank you thank you thank you mr stumbard may it please the court my name is richard stumbard of bixler and stumbard along with my law partner and my colleagues from lapinto schlather sulk and geldenhuis it is my honor today to represent 25 same sex couples from the ithica area who have been denied the right to marry for no reason other than their sex and sexual orientation my focus here will today will be on the discriminatory classifications created by the new york domestic relations law those discriminatory classifications are to a number the domestic relations law discriminates on the basis of sex because a person's sex determines he or who he or she can marry but for her sex the plaintiff ann bill could and would marry her partner elizabeth linsey the domestic relations law also prohibits same sex couples from marrying and therefore creates a classification based on sexual orientation so we believe that the the burden classes here include classes based on sex and classes based on sexual orientation that decision was made by the legislature that the domestic relation law was passed by the legislature i asked the same question why shouldn't you go back to the legislature and ask them to right any wrongs well i think that the legislature has been petitioned to right any wrongs and in fact have not acted on it we have had for a long time since its inception this disparity this burdening of of new yorkers based on their sexual orientation but aren't you asking this court to define what marriage is and what discrimination is in marriage i i don't believe so that we're asking so much to define what marriage is i believe we're asking the court to compel the legislature to allow the institution of marriage to pertain to all new york citizens without regard to their sexual orientation or sex i believe that these burden classifications have been created the way domestic relations law is interpreted in the state of new york and that they have created these unequal citizens and it is the history and the province of this court to address discriminatory classifications were they unequal at the time that the legislation was passed or has it become unequal only in let's say let's say the last two three four decades well i believe that the legislation the domestic relations law has been interpreted as a law that provides marriage only to heterosexual couples i believe that you say you say that was invalid the day it was enacted it was invalid that limitation was invalid the day it was enacted if that's the way it was to be interpreted so assuming that we have a law in this state that says only opposite sex couples can marry that is and always has been unconstitutional that's it is my belief that that is the case obviously there's been a took some time to recognize it obviously there's been an evolution in constitutional jurisprudence as it's often the case in various civil rights issues burden groups have taken long periods of time to be recognized isn't this the only one where you have literally the whole history of western civilization against you well i i wouldn't say the whole history of western civilization well i mean miss miss summer and her argument referred to a history of discrimination and exclusion which i assume that does go back right to the dawn of civilization doesn't it that discrimination and exclusion well i i can't speak for the dawn of civilization but there is a brief there is a brief submitted by the historians which goes through the changing nature of marriage marriage is not changed miss justin or what's changed what's changed is the the way gender is so is essentially a social construct and marriage is a social construct and the way that social construct is viewed has changed radically is it is it a premise of your argument that the gender is entirely a social construct that there are no differences between men and women that the law can recognize well there are sexual differences but gender is a social construct i would say it is not it is not the fact that the fact that women can get pregnant men cannot it's not a social construct is it no that is a real a sexual reality and then that only and that only man that the only way maybe not the only way the commonest way for women to get pregnant is by intercourse with men i mean that's not a social construct that's not a social construct that is a biological reality it is the roles that people are put in generally that is the issue here of of social construct it is the roles that wife has traditionally been put in which has complicated the matter and and made life in all honesty difficult for both men and women it is the roles that women were put in historically for such things as the ability to practice law like the bradwell case for example those were social constructs and they have an impact on what the institution of marriage has been i say that those social constructs have changed dramatically over the years and we do look at the roles of men and women differently there are obviously biological imperatives and i would not speak against them even our domestic relations law acknowledges that and economic areas etc a role the traditional role of men and women have have really disappeared absolutely when you look at or via or relation to support children etc that's right there's an there's an equality of or via or the alimony as it was called in those days maintenance now goes goes both ways that was a case based on on sexual discrimination although it it inert to benefit of i would say both both sexes what do we i'm sorry i'm sorry i was finished what do we look to to determine whether or not there's discrimination just the gender issue or what well in this case we believe there's two classifications of discrimination that the domestic relations law i understood that yes what do we look to to either support or not support your argument well how society is looking at things our constitution only what is it that we look at well we are here with the constitutional arguments it's true that societies changes and the changes of roles have and no small part led us to this point i would be inaccurate to say that it haven't but we were here on the constitutional issues and we believe that there is a discrimination here based on sex because it is a straight but for argument but for the fact that someone a woman who is otherwise qualified a lesbian who is otherwise qualified cannot marry it is but for her sex that she cannot marry despite the fact that she's otherwise qualified it's it's that one element that impedes her from entering a the a marriage which would be very helpful uh and very important the gateway to so many rights that council has spoken of you you you can see that the um that uh the the it's the restriction of marriage to opposite sex couples or do you concede that it doesn't burden either men or women as a class it burdens men men who want to marry women well not as a class distinct from each other i think it burdens both classes i guess i guess what i'm really saying is does does that restriction favor one sex over the other favor one sex no it equally is deleterious to both sexes uh isn't that isn't that different from say loving against virginia where they the facially neutral uh prohibition on intermarriage obviously was intended to promote the supremacy of one group over the other well that certainly was the intent but the lessing of loving is how to look at a classification is uh clearly loving is a racial case it has compelling interests uh beyond uh the the heightened scrutiny which we believe should should be applied here but the the other lesson of lesson of loving is that to look at how classifications are made and and loving uh the argument from the state of virginia uh was that uh uh both races were burdened equally but that but that was and loving that was clearly untrue it was just ingenuous there's no question about it whereas here here there's you i think you admitted a few minutes ago that both sexes are burdened equally both sexes are burdened equally but it's not the sexes that we look at under the the equal protection jurisprudence we look at the individuals there's an interesting quote from justice kennedy in the j e b versus alabama case which was a case having to do with sex stereotyping and jury selection in fact there's quite a few jury selection cases which are interesting in in addressing this equal application argument but judge uh judge kennedy uh in the j e b case uh says and i quote at the heart of the constitutional guarantee of equal protection lies the simple command that the government must treat citizens as individuals not as simply components of a racial or sexual class i think that is the focus of the equal protection jurisprudence here the the in fact the equal protection clause itself says that no person will be burdened by the state action uh it is directed to the person we talk in classes as a simplification but is that it's that individual it's the individual juror who isn't selected because that individual juror is a person of color or a woman uh that's what's significant here not the fact that the defense can strike uh all the jurors who but based on stereotype they believe are inappropriate for their case and the prosecution can kind of neutralize the strikes of the defense by striking the the other uh a group or a selected class does the state have an interest in promoting marriage between heterosexuals and promoting marriage between heterosexuals as heterosexuals yes i i do not believe so i think the state has an interest in promoting marriage but not exclusive to heterosexuals no there as counsel has argued there is uh no not even a rational basis if we look at the discriminatory classifications that are created by the domestic relations law for example sex discrimination it's well found and well held that we should be looking at a heightened scrutiny uh examination if we look at a heightened scrutiny examination uh the defense here uh has hasn't even attempted to refute or to establish heightened scrutiny they simply uh focus on rational basis and in fact in the lower court the third department there is even a quote about what happened at oral argument concerning uh the attempt to uh uh the questions uh director to defense counsel about heightened scrutiny what is that quote that quote is i have it here uh it uh if the test being employed was not rational basis uh the um uh issue and under inclusive the over inclusive and under inclusive nature of of this basis would create considerable problems for defendants a fact that defendants conceded at oral argument now i think considerable problems was was giving uh giving a little more credit than was due because the argument at oral argument was actually a concession that there wasn't a heightened scrutiny and no argument in support of heightened scrutiny in the in the cases from other states that have upheld either gay marriage or civil unions have any of them found sex discrimination as distinct from discrimination based on sexual preference yes there are several cases that have found sex discrimination um there is a case uh bare versus luan that was the hawaii case uh in ray coordination that was a california case live versus origan that's an organ case browses brows versus the bureau of vital statistics that was an alasby case in fact there was a long ex exegis about sex discrimination and um twins marrying twins and the the opinion was very interesting in that way judge sacks uh dissenting in hernandez uh judge grainy in in goodridge and in baker versus the state of vermont all of those cases made a finding that there was uh uh discrimination based on sex that baker baker rests on sex discrimination as baker there was a there was a quote in that in that case yes that there was sex discrimination if if we agree with you should we give the legislature a chance to act a chance to make the uh i i don't believe that there is a need your honor obviously that is your that is your discretion uh that's what happened in massachusetts and the legislature was found wanting when they came back with uh a essentially a a non-marriage solution and i believe that anything short of a marriage solution in this case would not be appropriate thank you mr stemby thank you mr kimlin may it please the court my name is terry kimlin i'm here with kathy manley from my firm kimlin and shanks were from albany new york and it's my privilege to be representing two couples in our case which is entitled uh cane versus marsalay for the past uh hour you've been soaring through the rarefied air of constitutional theory equal protection and due process and i'm going to ask you i've only i've only requested five minutes from this court i'm going to ask you for these five minutes to please come down to the surface of new york state with me and permit me to discuss the human aspect of our current state of law as it affects my clients bob and george alissa and lin i represent those two couples and i actually have five clients here today the fifth client who's not named is a little girl age nine her name is norah and she is the beloved and well cared for child of lin and alissa there is no better way for me to describe to this court the absurdity of the current situation in new york as it affects same-sex couples than to say this i represent two men and two women the two men have been together as a couple for 30 years now and they will be together for the rest of their lives the two women have been together for almost a decade they are not permitted to get a marriage license in this state because they are same-sex couples however if bob from the male couple wanted to marry lin from the female couple they could walk to city hall get a license today and have a wedding on saturday morning and that's preposterous it isn't fair to them it doesn't make any sense it does not you say it's preposterous yes your honor why given our history of quote western civilization end quote that it's been that way for centuries why is it preposterous well your honor i guess i spend my life uh standing a thwart the winds of history and frankly when we continue to do things the way we've always done things we have many absurd results we are evolving as a society and just because we did something 200 years ago or 100 years or go or 50 years ago it's no not necessarily a good justification to do it now i agree with you entirely and in that circumstance shouldn't we leave it to the legislature to deal with it well that that i'll if if i may your honor that's something i intend to address as quickly as i address in my my second two and a half minutes before this court because it's my position that we don't need the legislature that if we employ the rules of statutory construction the well-known historical rules of statutory construction then it becomes clear that it is permissible now for people of who are members of same-sex couples to marry each other say we should just rewrite the statute i think the only thing we really need to do your honor is this i think we need to call our friends at the lower vision commission and ask them to clean up the language a little bit because the reality is that under the new york state rules of construction and i i think it's uh new york rules of construction section 22 a gender designation can be treated either way in other words a man if we call somebody him we can treat him as her uh if we call somebody a groom we can treat that person as a bride and that is you aren't you aren't really saying that the whole problem here is that the legislature was insufficiently precise in its language when it wrote the statute you mean if they if they just had the if they had you to call the law revision commission then we wouldn't have this problem we said oh yeah let's include the same sex couples well no your honor i don't think anybody was thinking about this in 1909 when the domestic relations law was created however what's very significant is this there is no prohibition under new york state law against same-sex marriage there are only two qualifications for two people to be married one is age and the second is the capability of consent and if a person is of sufficient age and if that person is capable of consenting to a marriage then as the law is written and applying the rules of construction they are entitled to be married but it doesn't that it doesn't that suggest maybe an argument for the other side that for a long long long time it was not only believed it was just assumed without even thinking that only people of opposite sexes could marry i mean that's not true of race we had racial discrimination laws all over the place well your honor nobody nobody even thought it was necessary to limit marriage to opposite sex couples but it seems so obvious for all those years i mean have you can you think of a case where something that was that well accepted for that many centuries was found unconstitutional i think that when you have rules of construction which had been clearly defined by this court and where it is the obligation of the court and the office of the court to attempt to interpret a law so as to avoid constitutional problems and we've been talking about constitutional problems if we follow that maximum then under those circumstances if we avoid the constitutional problems if we employ the rules of construction if we say that for statutory language purposes male is female and female is male then in new york state your honor where there is no prohibition against same-sex marriage even though there have been several efforts in the last couple of years to pass legislation to forbid same-sex marriage as many many many i think most of the other states which have considered same-sex marriage have done new york state despite many opportunities to do so has declined to do so i understand the matter of jacob we did that we did exactly what you're asking us to do here in matter of jacob we know we weren't changing words in the statue well your honor what we can under the rules of construction and i think that it is an appropriate thing to do we really do come right up against the constitutional issue mr. kenland don't we well if we need to do it frontally or whether we do it in some more subversive way as your well subversive is an interesting choice of words and actually it's one of the words that i've liked all my life your honor so but we'll let you end with that thank you very much thank you thank you very much massachusetts is the only state that currently allows same-sex marriages for more information on the proposed constitutional amendment president bush's statements and debate from the senate floor go to c span dot org and join us next week for part two of the oral argument from new york's highest court we'll hear from the attorneys arguing against gay marriage america and the courts saturday evenings at seven eastern on c span tonight on american perspectives commencement speeches from colleges and universities around the country and later a discussion on journalists under fire what happens in a newsroom when one of their own becomes the story that's all ahead tonight on american perspectives yell university holds its traditional class day the day before the official commencement ceremony class day is an informal ceremony to celebrate yell traditions and hand out student awards this year's class day speaker was cnn's anderson cooper who graduated from yell in 1989 this is nearly 20 minutes thank you trey