 Up next, on America and the Courts, a New York court decides on same-sex marriage. And then the life and legacy of Betty Friedan. After that, Federal Reserve Board Chair Ben Bernanke delivers a commencement address at the Massachusetts Institute of Technology. This is C-SPAN's America and the Courts. Next oral argument in four New York same-sex marriage cases. This week, we'll hear from attorneys arguing against gay marriage. New York's highest court will decide if marriage licenses can be given to same-sex couples based on New York's constitution. 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. Mr. Kernel. Thank you, Your Honor. First, I do want to address one open issue in terms of whether a fundamental right has been recognized in response to Judge Smith's question. The answer is not by any appellate court in the country, including Massachusetts, which relied instead on an idiosyncratic interpretation of rational basis. But I would like, before I address the specific issues, I would like to give a little historical legal development to explain why when we reach the conclusion that what they're asking for is quite dramatic. Historically, the end of the 1800s, in a case may not verse Hill, was one of the first cases of the Supreme Court dealing with the concept of marriage. And essentially, there were two wives, and the man left the first one, went to Oregon, and married the second. And in Oregon, he obtained a divorce from the first one without telling the first one about the divorce. And he also inherited property. And the issue was for the Supreme Court, who gets the property? And essentially what the Supreme Court said was the definition of marriage, who can marry, and how can marriage be dissolved was exclusively for the legislature. And since the Oregon legislature had established the process for divorce, and the man had complied with that process, the second wife would obtain the property. New York was similarly situated. There's this argument that we haven't yet defined marriage, that we can treat it as men, women, men, men, women, men. I understand the argument, but I don't stand ignoring fear and verse trainer. Because in the 1930s, in a case involving the abolition of the cause of action of the right to marry, this court specifically said that the marriage is between a man and a woman. But more than that, said that it's a contract between two people controlled by the state through the legislature. And if the legislature wants to abolish a cause of action, it had the right to do so. The legislature's power over marriage is limited, obviously, by the Equal Protection Clause and her loving interest. That's correct. I'm going to deal with loving, but I'm only in the 1920s, you know. But I will deal with loving, and I'm going to tie it. But at least as of now, there's exclusive control of the definition within the legislature. Maurizio was another case that was decided by this very court, and indeed was the precursor to Skettiverse Oklahoma. And Maurizio, the woman refused to have sex with the man because he wouldn't go through a religious ceremony. And the issue was whether she could sue for abandonment and lack of support. And this court said that the reason for marriage is the begetting of offspring. It was the procreative aspect of marriage that it focused on, not the relationship of the two people, and said it was the foundation of civilization. And since the woman would not participate in the act which would lead to the procreation, she would not be entitled to support. Later on in the 1940s, the Supreme Court in Skettiverse Oklahoma actually mirrored that. And in Skettiverse again, the emphasis was not on the relationship. It was on the procreation aspect because the statute there allowed for sterilization, where an individual was convicted of more than one crime of moral turpitude. If he was, he could be sterilized. And the Supreme Court said that marriage was so fundamental because of the procreative aspect, not the relationship. What relevance is procreation today? The other side seems to say it's not too relevant, or at least that's... The relevance. I may be putting words in their mouths, but it's saying that it is not so central to marriage today. But it is, Your Honor, because the purpose of the regulation of marriage is to encourage stability by having the solemnization where you have two people who procreate and have issue. What you want is encourage stability of the family. Does that mean... A medical advance has changed that situation? Yes, yes. And all that means is an argument can be made before the legislature that there is a reason to include another group that is not exactly similar. But the vast issues still come as a result of biological procreation between man and woman through the marriage. Doesn't the... I'm sorry. Doesn't the... How does allowing same-sex marriage intrude upon that state interest? But that's not the issue. The question... But how does it... Excuse me? How does allowing same-sex marriage intrude on or impair that state... But under the rational base, which I'll get to, it's not... The question is whether or not there's a rational basis. If, as we contend, the purpose is still viable, then the issue is whether there's a constitutional compulsion to include them. Not whether it's desirable because after all, when you decide there's a constitutional compulsion on the least substantive test rational basis, you are saying the legislature cannot choose to include. You are making the... And procreation is the only rational basis for the heterosexual marriage? Or is it? That has the... It is the emphasis, yes. Yes. Is there any other rational basis? Well, it ties in with tradition and the management of tradition, but the main reason... Is the upbringing of children something different from procreation? Ken, could the legislature prefer a... that children be brought up in opposite-sex households? Do I think they can make that judgment based on a study? The answer is yes, but I don't believe that's the original reason. The original reason was to create a process where when men and women get together, society has judged that this would increase stability. They were dealing with a vast look. There's no question you could argue, for example, that people who can have children shouldn't get the benefit of it. But if a statute is over-under-inclusive, you don't throw out the statute, you compel including another group. You say to the legislature, hear their arguments, and if they have legitimate arguments, as the Supreme Court has said, in the end, that those arguments will be sustained and they will be included. How do you deal with Turner against... I was going to get the loving. I didn't forget... No, no, well, yeah, I'm going to distract you again. Okay. Now I'm going to ask you about Turner... That's my next step. How do you deal with Turner against whoever it was, where the Supreme Court held that two prison inmates who were in different prisons are not going to procreate with anybody, that they had a fundamental right to marry? Because, yes. But what they said in that particular case at some point, those inmates would be hoped to be released and you still had the purpose of the marriage and the procreative aspect. Again, marriage does not mean that everybody within it fits the definition, but if it has a purpose that's rational, the fact that it's under-over-inclusive doesn't mean you automatically include another group. Now I'll get the loving, as I promised. In 1967, loving was decided, and it's on this basis that the appellants argue that this created not only a right to marry, but a right to choose. It did not. It was a very limited holding. It was only a right to choose in that case, because, as Your Honor said, it was discrimination based on race. But this is not the idle musings of an orator before this court. This was confirmed five years later in the case Baker v. Nelson, which I have described at length and night. And I'm going to take a few minutes to discuss it because I feel it is very, very important to this case. And Baker, two individuals of the same sex applied for a marriage license in Minnesota, in a small town in Minnesota. They were denied it because the statute only allowed the marriage when a man and a woman. It went up to the Minnesota Supreme Court and the basis of the argument for the Minnesota Supreme Court violated equal protection due process clause of the federal constitution and discriminated based on gender. Another argument you heard before this court. The Supreme Court of Minnesota noted the fact of the procreative purpose said that it was rational based on discriminating between man and woman and people of the same sex, that they are not going to substitute their judgment for a legislature and distinguish loving in the manner I just said. In other words, that loving was based on the racial exclusion and it was not a general right to choose. Well, if you stayed with loving, though, Mr. Kerner. I'm sorry? If you stayed with loving, there was, and there were two bases. There was the equal protection, but there was also the due process, right? Yes. Yes. And your honor, both were raised in the Minnesota case. And Minnesota specifically said it was a racial exclusion. It was not intended to create a general right to choose, which was for the legislature. And it was dealing with the federal constitution, wasn't it? Yes, and I will cover that too. But we are dealing with the New York State Constitution. That's correct. But in New York State, you have consistently held under the equal protection clause that your interpretation of equal protection is no broader than the interpretation given by the Supreme Court. And when you discuss equal protection cases, you cite Supreme Court decisions to that effect. And that's under 21 Catholic Home Bureau, Dorsey vs. Stuyvesant, S. LaVerge Wardens. What about due process? Yes. You say you can go beyond that for due process purpose. But if it is rational and sustainable under equal protection, it's not going to be irrational under due process. Now what happened going back to Baker was that under the procedure, then in effect, you could appeal directly to the Supreme Court. And they did. And the Supreme Court dismissed that case for want of a substantial federal question. This court is held in Brady vs. State, reflecting two Supreme Court decisions, Hicks vs. Miranda and the Washington to the Yucca Indemnation, that that is a decision on the merits as to what was argued before the Supreme Court and what was held. And what was argued before the Supreme Court was whether this violated due process, whether it violated equal protection and whether it was sexual discrimination. After Baker, now two arguments are made that I should deal with at least parenthetically. One is it says, you have the right to make an independent determination under equal protection. And they discuss the case for people versus current. That supports our position. In people versus current, there wasn't equal protection argument. It had to do with jury selection and excluding people based on race. And what you said there were two issues presented for your review. Under a Supreme Court case called Batson. One you said had already been decided in Batson and you were bound. The second one under equal protection, you can make your own independent determination under federal rules because it was never decided. That supports our position. Second, they argue citing people versus an offering that you have don't have to give substantial deference to a decision based on a determination that dismiss for one a substantial federal question. People versus an offering, by the way, it's not fundamental. It's rational basis. That's just a side issue based on an earlier discussion. But in that case, what did you do with a case out of Virginia involving the same issue? You didn't say you didn't have to give it a presidential effect. You, after a page and a half of discussion concluded based on an evaluation of the Virginia case that it was decided on procedural, not meritorious grounds. And you confirmed that in a later opinion by the Supreme Court in which you cited to that Supreme Court opinion in which the lead judge writing for the majority said we had never resolved the issue left open. So people versus an offering was free to be decided without regard to the Supreme Court decision. Mr. Kerner, do we have to agree with your position or do we have to agree with you on the effect of the Supreme Court's decision in Baker for you to win? No. Even if Baker had not been decided, there were two other decisions of the Supreme Court, Cleburne and Gluck's Court. What about Lawrence? I'm sorry? What about Lawrence? What effect does Lawrence have of Baker in your view? One of the arguments made is that Lawrence somehow implies a change in Baker. Lawrence, everybody knows with that. The dissenters in Lawrence certainly seem to think it implied a change. It did. But unfortunately, yes, but I don't think you can assume that dissent would have voted for same-sex marriage. Indeed, the dissent would have concluded that the criminal charges should have been disdained. But what the majority did, it is true, one could speculate in Lawrence in the absence of what I'm going to say that Lawrence represented at least some part of a change in terms of how you view sexual orientation. What is interesting about Lawrence is two things. Even though it involved the right of privacy at home, they did not use heightened scrutiny or compelling interest. They used rational basis. But second, in their holding, they specifically differentiated between the criminal charge and the request which was not present before the court to enter into a formal legal relationship, which they said would be a completely different issue. And justice are kind of the sixth justice confirmed on equal protection grounds noting that this didn't involve an attempt to establish a marriage relations would have been a very different question. So in Lawrence not only it doesn't permit idle speculation, there's a clear rebuke to any implication that Lawrence would change the rule with respect to legal marriage relationships in contrast to criminal prosecution. Justice Scalia, though, says in his dissent, don't believe it. Is he right? No. I don't think so because the majority conclusively responded to Justice Scalia and said, they didn't leave it speculation. But it certainly is not enough. It is not a hint that they're going to recognize it. And as I said, it's striking that they didn't use the right of privacy which could have led to a compelling interest. Instead, did only rational basis. And in Rome of verse 7 is another sexual orientation case. They also use which had to do with a referendum and whether a referendum can prohibit political participation on the behalf of the people of the same sex. So it is clear that the appropriate test is rational basis. Now there was Excuse me. Has the legislature refused to deal with this issue of same sex marriage? And do we take that into consideration in deciding this case? The answer is you should not take it into consideration. The issue should be whether or not there's a constitutional compulsion as long as there's a rational base that should discharge your responsibility. But with respect to same sex, we listed on pages 54 and 55 a brief, all the changes that have been made by the legislature and furtherance of same sex relationships, have they approved marriage? No, they have not. Has the issue been brought up? I really, I couldn't say I'm sure it is raised, but the fact that it's not passed over some period of time doesn't mean there's a constitutional compulsion to give them relief when there is no constitutional basis for it. There is also a hint under equal protection that you've created another tier. I am not sure where that comes from. And for this very reason, I've looked at all the equal protection cases where you have reversed. You apply the same standard. If it's compelling, fundamental, heightened scrutiny, sexual discrimination, I'll deal with that in a minute. And rational base has always been the same and your court has said it's the paradigm of restraint that if it's fairly debatable you shouldn't touch it as has the Supreme Court because then you become a super legislator. I don't know where they get this distinction between personal rights and economic rights. Hope of first paralysis, which had to do with reproductive rights, you applied rational base the same test. In a case, I have, in Mingmen, let me deal with Mingmen since they rely on it. That had to do with the town of Oyster Bay and the zoning regulation which differentiated between people of the same blood where they could have an enormous household and people under related, under related could only be limited to two people. And you said the purpose of the regulation which was given by the town was to reduce noise, reduce overcrowded parking and make the area more attractive. And your point was how does excluding them solve that problem? If you have a large household of related people who are similarly situated to a small, what difference does it make? They're both increasing the problem. And so you apply the general test. I have never seen you apply a different test. Well, we apply, all courts apply a stricter scrutiny to certain categories. And isn't it the categories of people who are most likely to be the victims of abuse and discrimination? Yes. And aren't homosexuals almost a classic example of people who've been abused and discriminated against for a long, long time and who need special protection? And the answer is no for this reason. Have they been discriminated against? Yes. Do they need protection? No, because under Kleberg, which is exactly the test you posit, the issue is do they have political clout? If in that particular case it was... Well, but black people aren't without political clout either. We still apply stricter scrutiny to racial discrimination. Yes. But that's a historic, fundamental basis. The difference here is that we're asking about creating a new right which is either fundamental or strict scrutiny. You should be reluctant to create new rights where they have political power because they've shown they can use the legislature, and you don't want to act as a super-legislature and take away their ability to participate in the political process. And in that particular case involving mental retardation, the court held that they reversed the circuit which had held strict scrutiny because that was a class that had been discriminated against. But then they pointed out that class has been successful in obtaining legislation. Has it been retarded? Have people really been victims of the same kind of discrimination that homosexuals have? It may be a different type, but it still doesn't deal with the issue, are they politically ineffective? And the truth is they are politically effective. Indeed, my client has gone on record of saying he would support before the legislature a legislative change. It's hard to say they're politically ineffective. They do not meet the test on the basis that that is because you don't want to intrude on the legislature's discretion. In effect, these individuals are not similar. The definition has been the reason it's fundamental is it's deeply rooted. And I do not believe there is any constitutional compulsion to include that. And before I conclude on sexual discrimination, I'm only going to make a very brief comment. I don't understand it. As I understood a woman, there is some disability because of the sex. It's been held, hasn't it, that male on male harassment or female on female harassment is sex discrimination. I don't know. I agree. Well, I mean, it's true, isn't it that I mean, there's discrimination in a literal sense. One of their female clients can get married if she marries a man, but not if she marries a woman. I have to disagree with you. There's discrimination based on sexual orientation, but the female is not being treated differently than the male. That is the aim of the sex statute, the sexual discrimination statute. Both of them can get married under the definition. It is true they don't meet the definition, but that's for the legislature. The fact that they can't marry a woman. But the definition takes sex into account. No, I do. It's circle, Your Honor, because the male is being treated exactly the same. Judge K. Can't marry a female. We're being treated exactly the same. The purpose of the legislation was not to change that. Isn't this another one of those things that depends on how you word it? Judge K. Can marry you, subject maybe some impediments. I can't. What's the difference? To be candid with you, I have never seen... I have never been able... I have never been able to follow this argument. I have read it. I have never been able to follow this argument. I have read it. I admit an ignorance on my part. I have read the cases. I don't see a connection. I think I've exhausted this particular issue. I think we should go down a different road. The only other point I do want to make is that trainer is not just an old case. Even as recently as 1970, there was an individual and this really is why this is appropriate for the legislature. It was an individual who committed a crime against his wife and he wanted the benefit of family court prosecution because I guess the rehabilitation portion was easier than if it was in criminal court. Essentially, what he argued was his status was equal to a marriage as defined in the statute. He said, I have a common law marriage which was recognized outside of New York and should be recognized inside New York. This court said, it's up to the legislature to define marriage. Go to the legislature, but in the meantime you don't need the definition. Therefore, citing the very case I cited about a man and a woman and the legislature defines who can marry, the court refused to give them the benefit of the family court act. This is really a classic redefinition and it is one where I do not believe they are similarly situated. They want to get the benefit of a historic definition. There's only one place for that that's been reflected in each of the appellate division decisions and we ask that all those orders be affirmed. Thank you, Mr. Kernner. Mr. Schiff. Judge Kay, may it please the court. Let me talk a little bit about, I mean, our bottom line here is that if there are going to be changes, it ought to be done by the legislature. And I think there have been bills, all sorts of bills. I don't think they will, although I haven't done real research on that question. But I would say that experience shows that while matters are in litigation, and this has now been in litigation for quite a while, the legislature is very reluctant to act and it's not likely to. Now I think when after this court decides hopefully in our favor, there's every reason to think that they change. They won't have the excuse that the matter is in court. And I mean, one case in point that I remember a number of years ago, I argued in the defense of the health department's smoking regulations. And we lost on the ground that the health department didn't have the authority to do that. And very soon thereafter, the legislature, they thought it was right, adopted probably rules or statutes that was even more stringent than the regulation. But there wasn't any reason for them to act and there have been lots of wild things repenting in court and there are a lot of other examples of that sort. So I think I'd like to talk a little bit about what we have said and I think the third department has said, as to why the law is rational. We believe that the state has had a long interest in channeling opposite sex relationships into marriage. And this is so that there would be a full family rather than there would be no family for that. And so that this is in the state's interest and it's also in the family's interest, but both economically and socially. And since opposite sex couples are the only ones that procreate by lying next to each other and we think that this differentiates the situation materially from the request that the same laws be applied to same sex couples. Frankly, I'm not sure it seems to us that they simply aren't comparable. Equal protection requires a comparable situations. We think this is not comparable. And in large measure, I would say that we think that the third department's decision does a splendid job in expressing our views. I'd like to say something about whether there's a fundamental right under due process. And Judge Smith, you have asked, well, isn't it a matter of how you define it? And I suppose it is, but I think it's quite clear and in looking at all the cases, the ones that say that marriage is a fundamental right, it's a recognition that it's always been connected with procreation and the preservation of society. And if you're looking at a fundamental right, you should look at what the basis for the assertion of a fundamental right has been. I only go back to the Skinner against Oklahoma, but then you have the Loving Case and you have others that they cite. What about Turner? What does Turner have to do with procreation? Well, at that point the court had, I mean... That case held, that there's a constitutional right for people who can't possibly procreate to get married. Well, they did indicate, as Mr. Turner said, that there was a prospect of that in the future. So, I mean, at that point the court had consistently talked about the fundamental right relating to marriage between a man and a woman, and, of course, historically that's been how marriage has been viewed. And a fundamental right, both by this court and the Supreme Court, is something that has been deeply rooted. So, if anything's been deeply rooted, it's the marriage between man and a woman, and frankly, as the third department pointed out and as we pointed out to them, I think they're simply asking for redefinition of marriage. And that is something that is really appropriate for the legislature to do, not for the court. Well, but the legislature, obviously, could not constitutionally redefine marriage to mean only marriage between people of the same race. Correct? So, it's not a marriage unless the two people are of the same race? No, of course not. Why, yeah, is there any real difference between a definition and a substantive limitation? Isn't the state in substance saying only people of the opposite sex can get married? Well, the question of a fundamental right is you have to see what's the basis for it. It hasn't been historically that just because two people love each other, it's because there has been this relation to the possibility of procreation. I mean, it's intertwined as how the court said what a fundamental right is. You're what you're really saying, aren't you, is that the definition of marriage to include only opposite sex couples makes sense, that it's a rational definition. But that's different from saying that it's the definition and that's the end of the story. Well, I think it's a rational and I think it's also what it has been historically viewed. And it's so yes. I'd also in terms of the McMinn case, I think it's been relied on a good deal. The main aspect of McMinn and all the predecessor cases are zoning cases and the question is what could the legislature or the local legislature is really what's involved in those cases. How can it restrict the use of somebody's house for the purposes. Now there's an earlier Supreme Court case which had said well you can zone in order to provide for single family housing and the like and they and some of the earlier cases before McMinn, which I think seem to be statutorily based by this court, said well you have to have some alternative it can't be just talking about family and and at McMinn the conclusion was that the definition there where the usage would be was assert but also it's a criminal law that's involved and suppose we disagree with you and say that there is a right to marry what follows from that, what would the consequences be? Well I mean it depends on what you say I mean we certainly hope you don't do that but if you say well I'm sorry that the other side said there were no consequences in Massachusetts and you would expect the same thing here. Would you agree with that? I have no way of really speculating whether in terms of the consequences of whether there would be riots or the like if that's what they were talking about or I mean I'm not speaking of violence in any matter I just want to know what would the practical consequences be in terms of anything, economics or Well I assume that if you say that then at least the benefits and the burdens that exist with respect to married couples now would also apply to the same sex married couples You can't identify any adverse consequence Mr. Schiff can you? No I don't but I would say that Your client's position is that it might be a good idea but the legislature should do it, correct? Well we certainly have no objection to the legislature But could, let me change the question slightly could a legislature see whether your client is saying it or not or whether you're saying it or not could a rational legislature conclude that changing the traditional definition of marriage would have harmful long-term effects on the family There are some of the arguments are made in the amicus briefs What you're saying is other people can make those arguments but you don't want to Well the legislature on a rational basis the legislature can make choices I don't think it's black and white but we aren't making that argument we wouldn't know exactly I don't think the studies have been such but we're not making that argument They can't make choices on moral or religious grounds Absolutely not On the question of the claim for gender discrimination I guess I'm in the same position Actually let me take you back to the answer you just gave to Judge Saperak I understand there are cases that say they can't make choices on moral or religious grounds Was Brown against Board of Education not a morally based decision Does morals have nothing to do with this? Well I guess Well Brown of course I mean we were dealing there with a 14th amendment but isn't there a moral principle underlying the 14th amendment principle of equality that is a moral principle that we all respond to I guess one can say I think Romer was basically saying that you can't discriminate because a particular group is simply morally objectionable which I think is different from Brown Board of Education which after all unbid I don't know, especially against Ferguson about 50 years of probably a bad decision and morally objectionable when it was issued but I mean so maybe my statement is too broad but I think basically I'm still agreeing with Judge Saperak that the state can't act simply because it doesn't like gays and lesbians so it's but I was going to say on gender discrimination I with Miss Kerner I have never been able to understand the argument as to why this would be gender discrimination and we talk about it in a brief and I guess I will leave it at that but I am puzzled and of course in this case the main argument has been that there has been gays and lesbians have been discriminated against for years because of the sexual orientation and if there is any discrimination on just discrimination I think it's based on sexual orientation and not on gender discrimination and it totally puzzles me the answer to one of your questions Judge Kay according to the census 2000 special report which I think we cited in our brief in New York households comprised of same sex unmarried partners represent 1.3% of all coupled households to the extent there is a claim that there is under inclusiveness the fact is that while there is a substantial number of same sex couples it's still a very small percentage of under inclusiveness now the courts have said at least the Supreme Court has said that one should act that in terms of discrimination or the court can act in an incremental fashion you don't have to deal with everything at one time now this is a peculiar situation I mean this statute with domestic relations law is more or less 100 years old and I don't think anybody 100 years the goal is thinking about the this issue it just wasn't on the radar screen of course there wasn't any radar then either but and indeed a good part of the argument that we've heard today and in the briefs has been well the same sex couples have families now this is also a fairly recent phenomenon I think one of the briefs on their side says really something that's become prevalent perhaps in the last 10 years so it's certainly the kind of thing that the legislature is one that can deal with this on an incremental basis and I don't think because there's something relatively new that all of a sudden this law becomes unconstitutional so I think Mr. Kerner covered most of these arguments and I would just ask that you affirm the decisions below. Thank you Mr. Shift. We'll save the time you have left over for your next appearance here. Mr. Jordan. Good afternoon your honours. Good afternoon. My name is Patrick Jordan I'm here with Jeffrey Jamison both our assistant corporation councillors for Albany here for responding to John Marsley City Clerk of Albany the first point and our first point in our brief is simply the fact that City Clerk does not have the ability to do what the petitioners are asking him to do he has to follow the domestic relations law as it is written as it is factually and particularly read and as the department of health has specifically instructed him to do and addressing one of Mr. Kindlin's points I hadn't him saying that it is that he can be read as he can be read as she and can be read as groom that's the first time I've heard that and the response reading of the DRL it never says simply he or she it says he and she, bride and groom man and wife they're very specific the statute needs to be read as a whole and that this particular section of the statute applies only to man and wife and that's who the state says can marry I'm not sure that I want to belabor co-council's points and looking at the anaheim case and under 21 all of your honors have brought those cases to light they do deal in a certain way with sexual orientation and this court has dealt with sexual orientation as a national basis test I cannot this happens is that even looking at it through a national basis test it fails your honor I would respectfully disagree with that looking at anaheim anaheim in particular we're dealing with a state consensual autonomy statute one that dealt with married couples different than unmarried couples in different groups why were they singled out by legislature I don't know it also dealt with what could be a potential harm as in Lawrence, Texas Texas statute was aimed at the possibility that homosexual asotomy or consensual asotomy would somehow endanger the other person how can you say that it was not it could not endanger a married couple in the same fashion therefore it fails a national basis test the state legislature looking at the domestic relations does not have to voice what its rational basis was that the court can infer what that could be the co-counsel has stated several times that and so has in the petition that the state's most likely aim is at procreation and as several your honors have pointed out there is a natural form of procreation that has been brought through the traditions of this country and the state is between man and woman Judge Graffio did point out that insemination is a viable alternative now however the overwhelming majority of couples in this state and country rely on natural pregnancy I would like to point out we discussed this amongst each other that in looking at several of the cases that the petitioners are relying on particularly many of the fundamental cases dealing with racism if you read the cases that have dealt particularly in that area it seems that the state legislatures there were aiming particularly at that group that was the goal of the statute and therefore it struck down as invidious discrimination the state in creating the domestic relations law looked at as we've already discussed the traditional union of man and woman the fact that a that same sex couples at a later point were deemed not to fit into the domestic relations law the goal of this legislation and therefore it may not have been the goal but it has that effect correct your honor but in looking at a rational basis all of the effects do not have to point you in one direction the state legislature has a rational basis for why the law has not been changed and as both sides have pointed out the state legislature is looking into different ways to improve improve how this group is looked upon by the state I know the city of Albany and the city of New York have both taken aim at that the legislature it doesn't sit year round they don't work and overarching goals it has to be taken step by step they are it appears taking incremental steps there's no reason why this court should stop them from taking those steps and as the constitution do you agree with the suggestion co-counselment that maybe they're waiting hoping will bail them out I would doubt that your honor I would assume that if they in fact are going to change this law and how as long as they deem it fit after hearings and your honor has pointed out there is no empirical data maybe they're waiting for that maybe they could have hearings other people come in and explain to them how maybe this law can change however this court should allow them a chance to examine the law and whether or not they should change it thank you this summer thank you there's a lot I'd like to respond to I know that much of it was addressed in our briefs and that Ms. Kaplan will be covering especially the arguments that were made with respect to the rational review failure of this legislation let me first start with the Baker vs. Nelson argument quickly it really is an argument of such little merit that even Mr. Kerner's office Michael in an opinion written March 3, 2004 that's in the record to the defendant in our case Victor Robles pointed out that and this is at page 129 of the Hernandez record that the appellate courts of New York have not addressed whether the statutory exclusion of same sex couples from the opportunity to marry is consistent with the federal and state constitutions and as recently as last year the United States Supreme Court made clear the constitutional question on the federal level remained an undecided one citing Lawrence vs. Texas well can't it be open for them and not for us that is if I mean isn't his logic right that if our equal protection clause is no broader than the federal equal protection clause which we have said right you have said that if that's true and if Baker v. Nelson has not been overruled by the court they may be ready to overrule it tomorrow but we can't overrule it can we you aren't first of all this court has said that the federal equal protection guarantee the state may be no broader however it is in other situations in other cases and Judge K has written an article in which she says this there have been occasions when the court has certainly done an independent analysis and is not bound by the federal analysis in addition there have been subsequent doctrinal developments since Baker vs. Nelson had its summary dismissal and under Supreme Court precedent I assume you're right that there are doctrinal developments which make it possible likely highly likely that the Supreme Court would not follow Baker v. Nelson tomorrow are we free to say then okay Baker v. Nelson is no longer the law or does the Supreme Court have to say that I think you're certainly free to say that we're going to put Baker v. Nelson aside say Baker v. Nelson is not controlling precedent as the Attorney General has said already in an opinion cited in our record and as has been said by some lower federal court cited in our briefing as well we have to say the equal protection clause in New York is broader not necessarily although it not necessarily because I think Baker v. Nelson cannot be viewed as good law or precedent binding on any court federal or state and certainly not on this state at this point. I'll get back to Judge Smith's question isn't it something different to say that they could change their minds tomorrow but while that precedent is still out there it might be it's binding on us to the extent our equal protection clause is co-extensive with the federal one there have been two for example two federal district court cases in recent years cited in our brief the smelt case and in Ray can do that have themselves said that they don't view Baker v. Nelson as binding even on federal courts so I don't think this court even has to go that far I'd like to turn as well so what do you extract as the binding equal protection jurisprudence of the Supreme Court of the United States on this issue well as the opinion I just read says the federal law is still an open question under federal law I think there are important cases such as the Zablaki case just a completely open issue there's a lot of guidance from cases in federal law ranging from Griswold v. Connecticut the Eisenstadt case which held that the right to privacy and autonomy in making decisions about whether or not to use contraception was not just a right for married couples but also a right for the unmarried and required the court not to define a right in narrow group based terms do you agree with Justice Scalia that in Lawrence v. Texas basically makes it impossible for the Supreme Court not to hold that gay marriage is permissible well I certainly do believe that Lawrence v. Texas is teaching and the methodology it follows does mean that any fair application of due process and equal protection doctrine should be to the conclusion that is unconstitutional to deprive same sex couples of access to civil marriage so when they said we're not deciding that Justice Scalia said don't believe it you think he was right actually I believe that Justice Scalia was right about is that Lawrence is a case that makes very clear how other courts need to address the question of marriage rights for same sex couples I think the Lawrence majority certainly didn't reach the question and was careful to make clear that it wasn't but I also think Lawrence is important for questions that have come up earlier about whether we're asking the court to define a new right to so-called same sex marriage or to simply acknowledge that the right to marry the well settled fundamental right to marry can't be defined so narrowly on group based terms to exclude an historically excluded group and in Lawrence the court overruled Bowers versus Hardwick which the Lawrence court said Lawrence's description of the right at stake as and in Bowers court said it was facetious to claim that there was a right to homosexual sodomy the Lawrence court said that misapprehended the nature of the right at stake it was a right to individual autonomy in making decisions about one's private sexual relationships and bonds with another and that it demeaned the dignity of lesbian and gay people had Baker relied on Bowers no Baker predates Bowers I'd like to also turn to the discussion about the Turner versus Southley case because I do believe that Turner is a case that's very on point and important and I don't think that it's fair to characterize it the way I heard it characterized earlier I think Turner versus Southley upholding the right of a prison inmate to marry it's clear that that prison inmate had no ability to engage in procreative activity and if there's any question about it if we just look at the decision of the court below in the 8th circuit it's 777 F2 1307 in which the 8th circuit court rejected the argument that a restriction on a prisoner's right to go through the formal ceremony of marriage does not amount to an infringement on a fundamental right because those aspects of a marriage which make it a basic civil right cohabitation sexual intercourse and the beginning and raising of children are already precluded by the fact of incarceration the court rejected that and said this argument ignores the elements of emotional support and public acknowledgement and commitment which are central to the marital relationship those words were echoed in the supreme court opinion in Turner itself and make clear that it is simply a misstatement and a misunderstanding of what's important about the fundamental right to marry to say it hinges on procreative abilities or intentions that simply never been that has not been the law in any recent decades and especially since Brisbane versus Connecticut in 1965 when the supreme court said there is a fundamental right of married couples to use contraception and they're no less married for having made that decision I'd like to also clear up one other point Miss Kaplan said and I think this is actually it was a misstatement that only heightened scrutiny applies as well to a fundamental rights violation and I don't believe that to be the case it is a question of strict scrutiny when a fundamental right is burdened to this extent I'd like to conclude racing against the clock here to respond to concerns that this is a matter that should be left to the legislature but when constitutional rights are at stake and the legislature is falling short of protecting them it is quintessentially the role of the court and this principle is of such importance that it has been memorialized on the very walls of this courthouse just in the next room hanging in the library are these words never more out today and I'm quoting the chief judge here the role of the courts as impartial protectors of individual rights can provoke controversy especially in hard cases involving unpopular causes or litigants yet it is precisely because independent tribunals decide cases according to the law and not the opinion polls that so many including vocal critics immediately turn to the courts for protection and relief when their own important rights are at stake the legislature can't pick and choose whose fundamental rights will be respected through the birth rights of all New Yorkers and must be guarded by the court for all of us thank you miss summer miss caplan well I'm a little tired at this point your honors but I'm going to try to speak as quickly as Mr. Kerner did so I can get through all my points the Baker v. Nelson point I think need not detain you long take a look at the no fray case this court has talked about what the meaning of a summary dismissal is of the United States Supreme Court and it said as follows in the circumstance the disposition by the Supreme Court does not necessarily signify approval of the reasoning by which the lower court resolved the case your adversaries that was after an analysis of the particular circumstances of that dismissal I mean but we know the circumstances of the Baker v. Nelson was dismissed for want of substantial federal question does not mean what it says Supreme Court has said the exact same thing about its own summary dismissals judge Smith so you're saying that a summary dismissal for want of a substantial federal question is not precedent it's precedent but it's not binding precedent on the reasoning of the court below and the Supreme Court said exactly the same same thing but it does establish that no substantial federal question was raised the Supreme Court dismissed it for want of substantial federal question at the time the Baker v. Nelson was decided Supreme Court about its own summary dismissals has said you can't rely on them for the reasoning below enough for the reasoning below but I don't quite see how there can be no substantial federal question in Baker v. Nelson and there be a substantial question in this case I think that's clear Baker v. Nelson you can't rely on the reasoning below the reasoning below was reasoning at that time forget about the reasoning how can how could Baker how could one of the whichever party lost in Baker v. Nelson lose and you win the Supreme Court basically said you can't rely on our summary dismissals is binding precedent that governs going forward on the reasoning below it's not binding precedent your Honor. Miss Kaplan if rational basis is the standard why hasn't that been met here? If rational basis is the standard why hasn't been met it hasn't been met because every justification that's been offered doesn't work let me let me try the procreation one which is the one that has been so extensively urged by your advocacy. Let me be clear on procreation first of all we're not running away from procreation your Honors we believe that there is of course procreation has something to do with marriage but the problem with the procreation argument it is and I see Judge Smith excuse me laughing it has a lot to do with marriage we can see that too the point is is that in the analysis this court does under the rational basis test in a no fray in McMinn in Liberda in Levin it looks not only at the people who are included in the classification but it looks at the people who are excluded by the classification and to answer one of George Bundy Smith's questions there are 46,000 more than 46,000 families in this state that are same-sex families with children and there is no dispute here that there is no rational interest being served in procreation in stable families or in healthy children happy children and excluding those families from the benefits of marriage if you look at the exclusion as you did in those cases you can't conclude it's rational there's absolutely no connection let me go to there's been a lot of talk this afternoon about the legislature the real question here there is a bill pending in the legislature it's been sitting for a long time with all respect to the co-equal branch of government it's not a legislature that's known for being an activist in the country this court knows that unfortunately all too well in the CFE case but that's not really the question before you the question before you as Judge K just pointed out is whether there's a rational basis if there's no rational basis then this court must strike the statute regardless of what the legislature is doing or isn't doing let me talk about tradition there's been a lot of talk this afternoon about tradition I think we can all agree that tradition standing alone doesn't meet the rational basis test and the reason it doesn't first of all this court said it didn't in a no fran laberta but putting that aside the reason it doesn't as a matter of logic is because there's no difference between the classification and the interest yes there's a tradition of excluding gay men and lesbians for marriage but that tradition doesn't justify continuing the tradition into the future there's no difference and as the court explained in Romer when there's no difference between the classification and the interest that fails rational basis I mean I see a problem shouldn't we have a certain humility in face the fact that for centuries the classification has not only been made but assumed I mean that is until until 50 years ago almost no one would have thought that marriage meant anything else than marriage between a man and woman is that irrelevant? that brings me to my next point Judge Smith I'm glad you asked the question how about first whether is it irrelevant or not? yes if there's no other independent state interest that meets the rational basis marital rape exemption existed in history for hundreds and hundreds of years hundreds of years it was okay for a man to rape his wife and this court did not hesitate for a second to say that that did not meet the rational basis test despite at the time the fact that 40 other states had marital rape exemptions the same thing is true for consensual sodomy again it seems funny today but I think we can all agree that at the time that this court decided a no fray in 1980 it was a long standing multi-century tradition from the beginning of time as I think has been said earlier to criminalize consensual sodomy between consenting adults most states at the time did and the supreme court six years later said it was okay which goes to the question of how the equal protection clauses are interpreted differently by the federal courts and by this court again this court didn't hesitate to say that despite that tradition it was unconstitutional and did not meet rational basis given the reasons that were proffered to have a criminal statute that prohibited consensual sodomy and had a marital exemption let me talk about the brown case you asked a question about the brown case and you said wasn't the result in the brown case moral of course it was but the issue here is whether moral disapproval standing alone is sufficient in brown there were a host of other reasons that compelled the court's result including the fact that it was clearly good public policy to eliminate separate but equal schools again there is no good public policy that has been offered by the city by the state or even by amici for why my clients in these appellants should deny the rights to marriage let me talk about the different standard it is true that in the dorsey case in the cases that followed it this court has said that with respect to the state action requirement the federal constitution and the state constitution are equivalent I want to say a couple things about that first of all let's talk about the dorsey case for a second it was decided in the late 1940s it upheld segregation its divas in town that's what the case did I would respectfully submit to your honors that if this court were to hear the dorsey case again today it would not rule that way in addition the dorsey case was decided before pj video pj video says that in order to decide whether any aspect of the state constitution gets interpreted more broadly you looked at the distinct culture history and tradition of the state this court has said many times that with respect to due process even though the language is identical basically identical this court interprets due process more broadly because of the distinctive history culture and tradition of new york state I would respectfully submit to your honors that there is no difference in the culture history or tradition of new york between protections of due process and the protections of equal protection in addition to that with respect to the way this court conducts rational basis review I said earlier that I didn't want to put words into your mouth about what you do but there's absolutely no doubt that when you're doing rational basis like these you look at the exclusion let me quote judge simons he couldn't have been more clear about this he said by limiting occupancy of single family homes to persons related by blood the oyster bay ordinance impermissively excluded many households who pose no threat to the goal of preserving the character of the traditional single family neighborhood again the same logic applies here there is nothing about excluding my clients many of whom are sitting in this room from the benefits of marriage that does anything to help procreation to help stable families or do any public interest that's been asserted by the city or by the state Judge Smith you asked a question about this does the exclusion have to have a benefit or is it enough to show that the exclusion does not offer the say that the excluded class does not advance the goals of the legislation to the same degree wouldn't that be a rational basis you have to conclude that the excluded class advances the goals of the legislation the goal of the legislation has been proffered here is having stable families for children there is nothing about excluding the class here that in any way furthers that interest my question is does it have to further the interest if it does not obviously there is a certain cost to the institution of marriage people who are married get a lot of benefits which are all over your briefs and the rest of the public pays for them do we have to extend those benefits to another class if the legislature could reasonably conclude that the benefits are not offered to the same degree by including that class in the group well cost the legislature cannot consider if you look at what the court said in Romer the justification in the Romer case was simply cost we should have rights in Colorado because it would be more costly for them to have the rights and the Supreme Court made it really clear that cost alone is insufficient what I was really asking was whether in deciding for whom to incur these costs can the legislature not consider the extent to which the objectives of the legislation will be advanced that is does it have to do with the excluded class does including excluded class actually have to harm the objectives or just say that it does not advance them as much I have to tell you in Min Judge Smith there were a lot of families in Oyster Bay that wanted to live in these homes where it was there was no statistical evidence of how many single people or couples who were unmarried wanted to live in these homes and that didn't hesitate for a second in preventing Judge Simons from saying that women that the under inclusion and that the fact that the exclusion didn't meet the interest didn't failed rational basis there's not a statistical requirement under this case of precedence and surely I think we can all agree that 46,000 more than 46,000 families is not an insignificant number with respect to Judge Smith two real quick things his question about the studies that is cited in the in our brief there's a footnote 64 on page 34 of our brief excuse me the American Psychological Association's brief there are a number of studies cited there if you want to read just one of them I would commend the first one cited and I would point out on that fact that even James Q. Wilson who submitted the amicus brief on the other side even Professor Wilson concedes that there's absolutely no studies that show that there's any harm to children from being raised in gay and lesbian families who has the burden of proof on that issue what? who has the burden on that issue we have the burden but I think we've met the burden and let me go to the final point and the final point has to do with respect to this question of incrementalism and I understand basically the arguments that have been made by the other side is that you should allow the legislature to experiment here what I would submit to your honors is that given the hundreds of protections and issues that are afforded to people based on marriage given the rights and protections that are afforded to at least those 46,000 families to allow the New York state legislature to do it piecemeal where it could be decades and decades before those children and those families have the full rights and protections that the family across the street has is not consistent with this court's jurisprudence thank you all please rise Massachusetts is the only state that currently allows gay couples to marry this is part two of the oral argument in four New York same sex marriage cases you can watch part one with attorneys arguing for gay marriage at C-SPAN.org just click on America and the courts and join us next week for America and the courts Saturday evenings at 7 p.m. Eastern on C-SPAN the house this week passed a non-binding resolution on the Iraq war 256 to 153 it declares that it's not in the national interest to set a date for troop withdrawal but the U.S. will prevail in the war on terror 42 Democrats joined 214 Republicans voting for the resolution the house is back for legislative business Monday next week's agenda includes defense spending a bill giving the president a modified line item veto and reauthorization of the Voting Rights Act the house is live on C-SPAN and the Senate returns Monday to continue work on the defense authorization bill the U.S. Senate is live on C-SPAN