Last week that recruiting is even a problem now because of this issue. Susan thanks to both of you for your time. Tonight on cspans q a, Washington Post reporter walter on the situation in the middle east and the 2003 invasion of iraq. I think one of the things the bush and administration Bush Administration and history has proved it. We look at things from our own point of view and get deceived by it. You can go back to vietnam which is a great example of the first time we sort of did it openly, but we have a history of trying to think other people are like us and what our standards. The world is different. Particularly in the middle east, it is totally different. Tonight at 8 00 eastern and s pacific on cspans q a. Here are a few of the book festivals we will be covering this spring on cspan twos book tv. That is the spring on cspan two loss book tv. The Supreme Court heard to or arguments on tuesday on the constitutionality of samesex marriage. The first question that came before the court is whether states should be required to license samesex marriages based on the constitutions 14th amendment. This is one hour and a half. We are hearing case 145566 and the consolidated cases. Please go ahead. Ms. Bonauto those couples just like those of heterosexual couples, if a legal commitment and responsibility and protection that is marriage is offlimits to gay people as a class, the unworthiness that falls on individuals and families contravenes the ecig constitutional commitment to equal dignity. Indeed, the purpose of the 14 purpose is to preclude relegating classes of persons to secondtier status. Justice ginsburg what do you do when it comes to matters of domestic relations . Ms. Bonauto the laws must respect the constitutional right to persons and where they could not be clear about that. Here we have a whole class of people who have had the equal right to be able to join in very extensive government petitions that provide protections for families. Chief Justice Roberts you say joint into the institution. Argument on the other side is that they are trying to change the institution. Every definition that i look up the fines marriage between a man and woman as husband and wife. If you succeed that core definition will not be operable. Ms. Bonauto what we are really talking about is a class of people who are excluded from partaking in this institution. If your question is about whether this draws Sexual Orientation lines. Chief Justice Roberts no. My question is if you are trying to join institution, or change what the institution is. You want to introduce into a samesex relationship. Ms. Bonauto two points on that, your honor. If youre talking about the fundamental right to marry as a court millphenyl institution, i think the 14th the memo provides guarantees as to what we view the role of gay people in our society. And a sense, in a sense the question is whether gay people share the same liberty to have family relations. Chief Justice Roberts one of the problems when you think about these cases the word that keeps coming back is millennium. First of all, there has not been time for the respondents, for the federal system to engage in this debate. On a larger scale, it was about the same time between brown and loving as between lawrence and this case. About 10 years. For this time, for the scholars and commentators, and the bar and the public to engage in it i dont even know how to count the decimals when we talk about millennium. This definition has been with us for millennium. It is very difficult for the court to say, we know better. Ms. Bonauto i do not think this is a question of the court knowing better. The place of gay people in our Civic Society has been contested for more than one century. In the last century, immigration exclusion, the place of gay people in Public Employment and federal service has often been contested. You can say 10 years for marriage for massachusetts, but it is also the 1970s when the baker case for minnesota reach this court. That is over 40 years ago. It was over 20 years ago that b American People have been debating and discussing this. The bottom line is that gay and lesbian families lived as neighbors throughout this whole country. Justice alito you argue in your brief that the michigan law was to demeaned gay people. Ms. Bonauto the michigan amendment went out of its way to say that gay people are against the good of society. Justice alito you say in your brief that the primary purpose of that was to demean gay people. Is that true just the michigan or true of every other state that has a similar definition of marriage. . Ms. Bonauto if we are trying but the states that have constitutional amendments, many are similar. There are a few states that have just statutes and not amendments. There are some that have of course none of the above. I think the commonality among all the statutes were whether they were not a lot of time ago or recently is that they enact moral judgments about the people. Even if you think of 100 years ago, gay people were not worthy of the concern of the government. Justice alito how do you account for the fact that as far as im aware, to the end of the 20th century, there was never a nation or coulter that recognized marriage between two people of the same sex. Can we infer from that that those nations and cultures all saw us that there was some rational practical purpose for defining marriage in that way, or is it that they were all operating independently, based on irrational stereotypes and prejudice . Ms. Bonauto if you think about the example of sexist termination, again, i assume it was protected by the 14th mimic but it took over 100 years for the court to recognize but then, we went from a rational based approach to a heightened scrutiny of the technology this kind of dissemination. The same thing here. We have lawrence Windsor Justice alito i do not believe you answered my question. Can we and for that these societies all thought there was a rational reason for this and a practical reason for this . Ms. Bonauto i dont know what other societies assume. I do believe that times it takes time to see the common humanity of people who once were ignored or excluded. Justice ginsburg you would not be asking for this if it was impossible. Samesex unions were not have opted into the pattern of marriage relationships. Yes, it was marriage between a man and a woman, but the man decided. There was a change in the institution of marriage. When it wasnt a gala terrien yellenegalitarian, samesex marriages would not fit into what marriage was. Ms. Bonauto that is correct. A woman was absorbed into that of her husband. Women had different prescribed roles. Because of the quality and changing circumstances, although those gender differences and the responsibilities of the married pair have been eliminated. That of course is a system that committed samesex couples chief Justice Roberts around the world, if you look at the basic definition, it, marriages between a man and a woman. It is not always say between a man and women in which a woman is subordinated. Im not sure it is a fair analogy to your situation. Ms. Bonauto your honor, the thing about marriage is that it is controlled and related by the state. The states create the definition of civil marriage and are certainly accountable for those definitions and exclusions which followed. In cases, people behind childsupport payments in a mixed race couple who wanted to join this system. Justice scalia not all societies band mixedrace marriages. Do you know of any Society Prior to the netherlands in 2001 that permitted samesex marriage . As a legal matter. cspanwj i am not ms. Bonauto i am not. Justice scalia not a Single Society before the netherlands in 2001. Ms. Bonauto what i am saying is taking that tradition as it is one still needs the court still needs a reason to maintain that tradition. Justice scalia the issue of course is not whether there should be samesex marriage, but who should decide the point . You are asking us to decide it for the society, when no other society until 2001 ever had it. How many states have voted to have samesex marriage . Their legislator or by referendum. I think it is 11. Ms. Bonauto yes. Justice scalia the state courts will agree with you, but once again, it is not the people deciding. It is judges deciding. Justice sotomayor in terms of this millennium, what has been the status over the views of gay people in most of those countries . Have they been subject to the kind of discrimination that they were subject to hear . Where they welcomed as a Worldwide Community . Was it free of discrimination . Ms. Bonauto if youre speaking of the world, not every legal system around the world has a system with an explicit guarantee of all purpose persons. That immediately sets the United States off from other countries. Whether it is 17 or 18 countries that authorize samesex marriage in europe, south america. Justice alito that is not a worldwide opinion. Ancient greece is an example. It was well accepted within certain bounds. But did they have samesex marriage in ancient greece . Ms. Bonauto i do not think they had anything comparable to what we have. Justice alito will they had marriage, didnt they . And they had samesex marriage did they not . People like plato were in favor of that. Ms. Bonauto in favor of . Justice alito rue approvingly of samesex relationships. Did he not . Ms. Bonauto i believe he did. Justice alito they are limiting marriage to couples of opposite sex was not based on prejudice against gay people, was a . Ms. Bonauto i cannot speak to what was happening with ancient philosophers. Justice alito marriag Justice Kennedy from a historical and anthropological standpoint, Justice Alito talked about coulters. I dont know if you read about the collar hari people were into peoples, they did not have a government ruling, it was themselves. Ms. Bonauto there were marriages prior to the United States forming. We recognize that. When our nation did form into this union and 1787, it affirmed the 14 amendment in 1868, that is what our nation made a commitment to individual liberty and equality. Justice breyer i would like to hear the precise answer to the question you have been asked several times. It has been the law everywhere for thousands of years. Among people who are not discriminating against even gay people. Suddenly, you want nine people outside the ballot box to require states that do not want to do it to change what you have heard, change what marriage is to include gay people. Why can those states not wait and see whether in fact doing so in other states is or is not harmful to marriage . That same question has been put in many many ways in the breeze on our subjects. You have received it in three or four different ways. I would like to know, so i can hear and understand it, just what your response is. Ms. Bonauto i apologize. In our system, with the 14th amendment, which again sets forth principles that we all are governed by, you look at examples like coverture. Even his a was not universal, it is something that was widespread in this nation for a very long time. That changed in marriage change in marriage was deeply unsettling with people. Likewise race is not a means by discriminating. It was incredibly pervasive. Changing that was resisted. 80 of the American People were with virginia on that, but it is a question of the individual liberty of a person that was considered a profound change of its time. Justice alito first we rule favorably in your case and then people will apply for a license with there be any ground to deny them a license . Ms. Bonauto i think there would be. There would be concerns about coercion and consent, and disrupting family relationships when you talk about multiple persons. I want to go back to the late to the question. Justice alito i hope you will come back to mine. These are for people. Two men and two women. It is not the sort of polygamist relationship that have existed in other societies and still exist in some societies today. Lets say they all are consenting adults, highly educated they are all lawyers. [laughter] what would be the ground under the logic of the decision you would like to hand down in this case, what would be the logic of denying them the same rights . Ms. Bonauto number one, i assume the states would rush in if youre talking about multiple people joining into a relationship, that is not the same thing we have had a marriage which is of mutual support and consent of two people. That aside Justice Alito i dont know what kind of distinction that is because a marriage between two people of the same sex is not something that we have had before. Recognizing that is a substantial break, maybe it is a good one. Why is that a greater break . Ms. Bonauto assuming it is within fundamental rights, im assuming states would come in with concerns about consent and coercion. There are issues around who is it that makes the medical decisions in a time of crisis. Im sure there would be several family issues. They do not apply here when we are talking about two consenting adults who want to make the commitment for as long as they shall be. That is my answer on that. If i can turn for moment to latency. Latency by itself has never been considered a justification under the 14th amendment. What were talking about here with latency is the petitioners being denied marriage. Were talking about a secondclass status. Justice kennedy part of it is to ascertain whether the studies are accurate. It seems to me then that we should not consult at all. It is too new. You say we do not need to wait for changes. It seems to me that if we are not going to wait, then it is only fair first to say that we will not consult social science. Ms. Bonauto two points on that, if i may. In terms of waiting, i think the effect of waiting is not neutral. It does confine samesex couples to another status. There will be profound consequences that come from that. Setting that aside visavis science, there have been trials, of course in the michigan case and arkansas, florida with adoption bans. As you all have heard, there is a social science consensus that there is nothing about the sex or Sexual Orientation of parents level affect child outcomes. This is not Just Research about gay people, it is research about what is the effect of ginger . Gender . Chief Justice Roberts you are quite right that the consequences of waiting are not neutral. On the other hand, how quickly has been accepted the Cross Society for your opinion. I do not know what the latest opinion polls show. The case in maine is quite characteristic. In 2012, they enacted it as law. That is quick change that quick change has been characteristic of this debate. If you prevail here, there will be no more debate. Closing debate can close minded and i can have consequence on how this new institution is excepted. People feel very differently about something if they have a chance to vote on it then if it is imposed on them by courts. Ms. Bonauto a few points there. I hope i get them all. With respect to maine, one thing that separates maine from the states that we are talking here is that there was not a constitutional limit in place that really largely shuts down the process. It is externally difficult to amend the constitution. An opinion poll does not measure what the legislator will do as far as approving an amendment. There are structural problems that do not apply in a place like maine. When i think about acceptance, i think about the nation as a whole. There are places where again there are no protections virtually no protections for gay and lesbian people in employment, and parenting and in parenting. Justice scalia im concerned about the wisdom of this court imposing through the constitutional requirement of action which is unpalatable to many of our citizens for religious reasons. They are not likely to change their view about what marriage consist of. Were the states to adopted by law, they could make exceptions to what is required for samesex marriage who has to honor and so forth. Once it is made a matter of constitutional law, those exceptions for example, is it conceivable that a minister, who is authorized by the state to conduct marriage can decline to marry two men, if indeed this Court Upholds that they have a constitutional right to marry . Is it conceivable that that would be allowed . Ms. Bonauto your honor, of course the cubs attrition will continue to apply. To this day, no clergy is forced to marry any couple that they do not want to marry. We have those provisions. Justice scalia but to this day weve never upheld a constitutional right for those people to marry. The minister is an instrument of the state. I do not see how you can possibly allow that minister to say, i will only marry a man and a woman, i will not married to men, which means you wou could have ministers to conduct real marriages that are simply enforceable civilly enforceable at the national cathedral, but not at st. Matthews downtown because that minister refuses to marry two men and therefore cannot be given the state power to make a real state marriage. I do not see any answer to that, i really dont. Ms. Bonauto Justice Sotomayor there have been antidiscrimination laws in many states, correct . Antidiscrimination laws regarding gay people. Ms. Bonauto correct. Justice sotomayor and any of the states have ministers been forced to administer gay marriage is . Marriages . Justice scalia they are laws. If you let the state do it, the state can make an exception. The state can say, yest two men can marry, but ministers will still be authorized to conduct marriage is on behalf of the state. You cannot do that once it is a constitutional prescription. Ms. Bonauto if one thing is for them and i believe it is firm, under the First Amendment that a clergyman does not have to officiate a marriage that he or she does not want to officiate. Justice scalia he will be required to officiate but he will not be given the states power unless he agrees to use the states power in accordance with the constitution. It seems to me that you have to make that exception. You cannot appoint people that will then go ahead and violate the constitution. Ms. Bonauto i think we are talking about a government and individual, a clerk that is a different matter that they will have to follow through unless again, the state decides and makes an exception. In connecticut, after the court permitted marriage they passed a law to deal with these sorts of issues. Justice scalia it was a state law. That is my whole point. When it is a state law, you can make those exemptions. When it is a constitutional law, i do not see how you can. Every state requires ministers to marry people. If indeed we hold as a matter that the state must married to men two men. Justice kagan for example there are many rabbis that will not conduct marriages between jews and nonjews, notwithstanding that we havent constitutional provision against religious discrimination. Those rabbis get all the powers and privileges of the state, even if they have that role. Many many rabbis will not do that. cspanwjJustice Breyer do you agree that ministers will not have to conduct samesex marriages . Ms. Bonauto if they do not want to, that is correct. If i may reserve my time, your honor, in terms of the question as to who decides, it is not about the court. The court versus the state. It is about the individual making the choice to marry with whom to marry. Thank you, council. [indiscernible] would you like to take a moment . I will. Thank you, chief justice. Actually the court is ready. We are ready. Refresher here actually. [laughter] mr. Chief justice, may appease the court . The right to marry is part of dignity and excluding gay and lesbian means to take away the dignity. The the argument we have been discussing is whether this discrimination should persist is something that should be left to the political process or decided by the court. I would like to make three points about that if i could. I think it is important that if the court leaves this up to the what the court is saying that the second class citizenship gay and lesbian are receiving is consistent with equal protection of the law. That is not a wait and see. That is a validation. And to the extent the thought is this could be left to the political process because this issue will take care of itself over time because attitudes are changing i submit to the court no one can see the future but it seems more like to me the outcome we end up with is something that will approximate the nation as a house divided. You may have many states perhaps most states where gay couples can live with equal dignity, but there is going to be a minority of states where gay couples are relegated to secondclass status and i dont know why we would want to repeat back to history. And third i want to expand on what was said and i think you recognized this, the decision to leave it to the political process is going to impose enormous cost the court thought were consititutional stature in windsor. Thousands of thousands ouch people are going to live out their lives and go to death without the state every recognizing the equal dignity of their relationship. You could have said the same thing ten years ago with lawrence. Havent we learned a lot since lawrence in the last ten years . Yes, and your honor, i think that is a critical point that goes to the question your honor was asking earlier. I think lawrence was an important catalyst that brought us to where we were. It provided an assurance gay and lesbians can live open in society as free people and start families and raise families and that is a critical point that participate in their Community Without fear. And two things formed from that i think. One is that brought us to the point where we understand now in a way that we did not fully understand in lawrence that gay and lesbian people and couples are full and equal members of the community. And what we once thought of as necessary and proper reasons for marginalizing gay people we understand do not justify that kind of pressure. The difference is lawrence, the whole argument is the state cant intrude on that personal relationship. This it seems is different in that what the argument is the state must sanctions and approve the relationship. They are two different questions. It is different. I agree. That leads to the second thing lawrence capitalized for the society and that is gay and lesbian people to take claim of the 14th amendment. This is about equal participation. Participation on equal terms in a state confer status, state institution, that is different than lawrence. But lawrence allowed us to see the justification for excluding gay and lesbian couples from par participation in this institution. And the state is talking about a fundamental change in the nature of marriage and i think the answer of this question is the case can be decided by thinking about marriage in the way the states define marriage now. And i think it is important to think about it this way. Heterosexual couples can enter marriage and have families through biological procreation assisted reproduction, families through adoptions or not have families at all. What do you think are the essential elements of marriage as they exist today . I think they are the ones that are obligations of mutual support and responsibility and the benefits surrounding marriage that state law provides to insure there is an enduring bond that continues over time unless hopefully till death do us part and the end of life. And certainly child rearing is bound up in that. But i would suggest, Justice Alito, is the way childbearing is bound in that is different than what my friend on the other side. Lets think about two groups of two people. The first is a samesex couple who have been together 25 years and they get married as a result of the change in state law or a result of a court decision. So the second two people are unmarried, siblings, lived together 25 years, their finance relationship is the same as the samesex couple, they share Household Expenses and chores in the same way and care for each other in the same way; is there any reason the law should treat the two groups differentry . The law allows hundred percent of heterosexual people to enter marriage consistent with their Sexual Orientation and in these states it prohibits hundred percent of gay and lesbian people from entering a relationship as far as the benefits marriage gives couple what is the reason for treating the two differently . Marriage is more fundamental than that. It is an enduring bond between two people. And childbearing it is important. Part of the wait and see caution argument that respondents are drive at is you have hundreds of thousands of children raised in samesex households now and what the respondents caution argument leads you to is the conclusion those hundreds of thousands of children dont get the stabalizing structure and the benefits of marriage. I would like to followup with the line of questions that Justice Scalia started. We have a concession from your friend that clergy is not required to perform samesex marriage. But they are going to be hard questions. Would a Religious School with married housing be required to afford such housing to samesex couples . I would like to make three points about that. And i will go right to the Justice Scalia started. We have a concession from your friend that clergy is not question you ask. The first one is of course this courts ruling addresses what the states must do under the 14th amendment and the second point is when you get to a question like the one your honor asked that is going to depend on how states work out the balance between their civil rights law whether they decide there is going to be civil right enforcement of discrimination based on Sexual Orientation or not, and how they decide what kinds of accommodations they are going to allow under state law and they could well different states could strike difference balances. What about it being a federal question if we make it a matter of constitutional law. But the question of how states use enforcement power is up to not, and how they decide what to the states. You have enforcement power too. And that is certainly true but there is no federal law generally banning discrimination based on Sexual Orientation. And the third point i would make is these issues are going to arise in states where there is no samesex marriage and they have risen many times. There is commitment ceremonies like in new mexico that didnt arrive from a marriage. It arose from a commitment ceremony. Lot of questions we asked your colleague in the earlier part of the argument had that in mind. Justice kennedy, forgive me for answer this way. There is a connection between liberty and equality but we only have an equal protection and we have not made the argument under that and i am not sure it is appropriate to comment without briefing. Why didnt you make the fundamental argument . We think reasons like the ones in the chief justice question this issue sounds equal protection as we understand it because the question is equal participation in a state conferred status and institution and that is why we think of it in equal protection terms. If i could with the time i have left i would like to suggest this. What the respondents are saying to the court is with respect to marriage they are not ready. Yes, gay and lesbian couples can live openly in society, yes they can raise children, yes they can participate fullly fully as members of the community but marriage has to be worked out later. But the petitioners, these gay and lesbian couples or not. They are saying leave it to the people. It will be worked out later or not. What these gay and lesbian couples are doing is playing claim to the promise of the 14th amendment now. It is radically the duty of this court, as it was in lawrence, to decide what the 14th amendment requires. I would suggest that in a world in which gay and lesbian couples live openly as our neighbors raise our children side by side with the rest of us, theytribute theytribute they contribute as members of the community and it is untenable they can be denied the right of equal protection in the institution of marriage or be required to wait until the majority decide they are ready to treat gay and lesbian people as equals. Gay and lesbian people are equal. They deserve the equal protection of the law and they deserve it now. Thank you. Thank you, general. Mr. Burse . Requires. Thank you mr. Chief justice. Respondents are not saying we are ready. This case isnt about how to define marriage. It is about who gets to decide that question. The people through the democratic process or the federal courts. And we are asking you to affirm individuals liberty interest in deciding the meaning of marriage. This case turns on the question no body is taking that away from anybody. Every single individual in this society choses if they can their Sexual Orientation or who to marry or not marry. I suspect even with us giving gays the right to marry there are some gay people who will chose not to just like heterosexual couples chose not to sometimes. We are talking about the fundamental liberty interest in deciding what marriage means. Setting that aside, i heard the answer to the question being given in respect to tradition, the 2,000 years and the democratic ballot box was quite simple. What i heard was, one, marriage is fundamental. I mean, certainly, that is true for 10,000 years. And marriage, as the states administer it, is open to vast the 2,000 years and the numbers of people who both have children, adopt children, dont have children, all over the place. But there is one group of people whom they wont open marriage to. So they have no possibility of taking opportunity in that fundamental ability. And that is samesex marriage. And we ask why . The answer we get is people have and that is samesex marriage. Always done it. You could have answered that one the same way when you talk about racial segregation. Or two because certain religious groups believe it is a sin. And i believe they sincerely think that. But is a purely religious reason on the part of some people sufficient . When i look for reasons three four and five i dont find them. What are they . Therefore i am asking this is a long question but gives you an opening to say what all of those reasons are. Those are not our answers. Our answer number one is the Marriage Institution did not develop to deny dignity or give secondclass status to anyone. It is developed to serve purposes that arrive from biology. Imagine a World Without marriage. Men and women would get together and create children but they would not be attached to each other in social institutions. On the other side, marriage is all about love and commitment and as a society we can agree that is important but the state has no interest in that. If we try to solve the social problem of no marriage we would not solve it by say lets have people identify who they are committed to and recognize those relationships. The principle argument you make in your brief is samesex marriage doesnt advance the state interest in regulating procreation. Lets assume that is so for the moment. Obviously samesex partners can procreate themselves. Make in your brief is samesex cannot procreate themselves. Is there in addition to that are you saying, that recognizing samesex marriage will impede upon that state interest or harm that state interest in regulating procreation through marriage . We are saying that, your hone. Obviously under a rational bases that is not a question you need to decide. But leaving that aside how could that because all of the benefits marriage affords the benefits. They would have the same incentive to marry and the benefits coming with marriage they do now. Justice kagan and Justice Ginsburg it has to do with the society understanding of what marriage means. This is a bigger idea of a couple and what marriage means to them or their children. When you change the definition of marriage to delink the idea we are bonding children with their biological mom and dad there is consequences. We dont do that. That is the problem. How many fathers walk away from their children . Some mothers do the same thing. Some how does withholding marriage from one group increase the value to the other group . It will harm marriage between a man and woman if you allow men or two women to marry . Is that your burden . I thought the burden was to show the states reason for this institution is a reason that has nothing to do, it is not applicable to samesex couples. Justice scalia, you are right. I want to answer your question. I dont think that is right. I think before something that is as fundamental to a society as marriage is before an exclusion can be made in that institution the state needs a reason for that exclusion. I am giving you a real opportunity to tell you what that reason is what is the reason for the exclusion instead of noninclusion. It is definition to solve a problem but the reason there is harm if you change the definition is because in peoples mind if marriage and creating children dont have anything to do with each other what do you expect . You expect more children outside of marriage. I want to give you a hypothetical you think if we allow samesex marriage one is announcing to the world that marriage and children have nothing to do with each other . Not in the abstract. Or in the concrete. If we are talking about something that is going to change the meaning of the institution over generations and you have things where we tweak what marriage means and there is consequences over the long term. Think about two couples that have been married for five years and each have a three year old child. One grows up believing marriage is about keeping that couple bound to that child forever. The other couple believes that that marriage is more about their emotional commitment to each other and if that commitment fades they may not Stay Together. A reasonable voter could believe there could be a different outcome if the marriages were influenced by the different belief systems. Ideas matter. That assumes that samesex couples could not have another purpose and that is the whole point. Samesex couples say of course we understand the nobility and the sacredness of marriage. We know we cannot procreate but what about the other attributes we have to fulfill. But you are saying this harms conventional marriage. That was the argument you made in the brief as i understood it. The state of michigan values the dignity and worth of every human being no matter how they chose to live their life. Our point is when you change the dictionary definition and apply it over generations the changes matter. That is true. But i mean the fact is that a very high percent of opposite sex people dont have children and Everybody Knows they cant and a very High Percentage of those who get married of samesex people do have children. Where is this going . What are these two gay couples to do with it . We are concerned about all of the children. Children of opposite sex couples and children of samesex couples. There are 73 million children in this country. If this court puts a new definition in the constitution and reduces the rate that opposite sex couples stay bound to their children because of the under understanding what evidence is there of that . Looking at the two couples i described, one believing that marriage is all about staying with their kinds and the other believing it is all about emotion and commitment could have different results. Even under a rational bases standard, do we accept a feeling . Described, one believing that i mean why and i think Justice Kagan put the argument clearly would something as fundamental as marriage, why would that feeling, which doesnt make any logical sense control our Decision Making . It doesnt make any logical sense that if people think marriage is more about love and commitment than about staying bound to your children forever there might be different consequences . I think people who get into marriage think that. Everybody has their own vision of what marriage is. But what state confers is certain obligations. And they are willing to accept those. Whether or not that couples Stay Together. They are bound to that child. They have to support the child they have to care for him or her, some people chose voluntarily, meaning they chose because they dont want to, but that happens in samesex and heterosexual couples. It is a harm to a child of an opposite sex couple if they get divorced as oppose today Stay Together forever. We can all agree that we want kids staying bound to their biological mother and father. When i hear i think they should be bound to their parents because there is a lot of adoptive children divorced as oppose today stay and they are not thinking of biological markers that is a situation where the child doesnt have their biological mom or dad and that is a different state interest. Suppose that there is a state with a very procreation centered view of marriage, of the kind you are talking about and so emotional commitment and support, all of these the state thinks are not the purpose of marriage, and they want their marriage license to be addressed only to the things that serve this procreation purpose so they say we are not giving marriage licenses to anybody who doesnt want children. So when people come in and ask for a marriage license they ask a simple question, do you want children . If the answer is no the state says no marriage license for you. Is that constitutional . That would go against the interest. The state says the best way to promote procreation centered view of marriage is to limit to support, all of these the state marriage to people who want children. And that is what it does. Would that be constitutional . Justice kagan, even people who come into a marriage thinking they dont want children end up with children. Answer the question. What is your answer to the question . I think it would be an innovation of privacy. Invasion of privacy. A 70yearold couple comes in [laughing] you dont have to ask questions you know they are not having children. A 70yearold man is capable of having children and you would like to keep that within the marriage. You are the one who said pure rational basis decides. And this is the state that is deciding it is so wants this procreationcentered view of marriage it is going to exclude who dont want children or people who cant have children and the question is would that be constitutional and it seems to me directly from your argument it would be constitutional. The problem is we hear about those restrictions and everyone of us said, that cant be constitutional. Im suggesting the same might be true here. To keep the marriage definition as you have described it, so procreation centered that the states can exclude everybody does not serve that purpose. That is the reason you have given. That is the primary interest. The definition of marriage suffers from that same flaw, the plainest definition, families that have been discussed that might benefit from having state recognized marriage that have emotional love or commitment to each other. Have no real emotional love or commitment to each other. Those are the reasons marriage is to provide a lasting bond between people who love each other and make a commitment to take care of each other. To keep the marriage definition as you have described it, so procreation centered that the states can exclude everybody does not serve that purpose. Do you see a way in which that logic can be limited to two people who want to have sexual relations . Or why that cannot extend to larger groups, the one i mentioned earlier, why it would not extend to unmarried siblings wh ohaveo have the same relationship. Over inclusive and underinclusive. The state does not have an interest in love and emotion. If Justice Kagan and i have a close friendship the government does not regulate when that begins or ends. Is not about love but binding children. I can accept that kind of definition and point out many gay people want have children. Im not certain how that works. The other thing that would be helpful to me is, there is an argument being made not by government, i would like your response to it that marriage is about as basic a right as there is, the constitution and amendment 14 does say you cannot deprive a person of liberty, certainly basic liberty without due process of law and that the taking the people were so little distinguishes them from the people you give the liberty to at least in terms of a good reason, and you cannot let them participate, that that violates the 14th amendment. We dont get into this scholastic effort to distinguish rational basis and middle and higher tier. It is not going to get into these questions about religion. Rights versus gayrights and so forth. We avoid that in this case. Perhaps that is wise, if not legally required, which it may be. I would like your response to that aspect of the other sides argument. With respect to the right of privacy you identified this court already answered that question in the majority opinion when he said the limitation what i said was that the right to be married is as basic a liberty, as basic a fundamental liberty, not the right of privacy, the right to be married which has existed for all of human civilization, that that is the right which is fundamental and therefore when the state offers that to almost everyone but excludes a group. I want that answer to the best of your ability. And this court said the limitation has always been thought to be monumental. Fundamental. I suppose i do not accept for argument sake your notion that the right of privacy and the right to be married of the same thing. Are the same thing. Now, we will deal with my hypothetical, and that is, they are different things. On on that assumption i would like to know what you think of the argument. Windsor on that the problem is i do not accept your starting premise the right to marriage is, i think, embedded in our constitution. It is a fundamental right. We have seen it in a number of cases. The issue is, you cannot narrow it down to say what is gay marriage fundamental. Black and white marriage. Fundamentally. The issue was starting for the proposition is the right to marry fundamental. And then, is it compelling for a state to exclude a group of people. For me that is a simple a question state to exclude a group of people. Justice sotomayor, i am not arguing with you about how broadly or narrowly defined narrowly we should be defining. The longestablished precedent designed to create a balance were federal courts are not interfering with the state democratic process. It does not matter how broadly defined it is, but fundamentally understood as a limitation. I am not sure it is necessary to get into Sexual Orientation to resolve the case. The difference is based upon their different sex. Why isnt that a straightforward question of sexual discrimination . Two reasons. The citizen mother that may automatically have citizenship but if it was the father the father had to prove paternity and make Child Support payments up until age 18 which is obvious sex discrimination. The core rationale for that as we know who the mother is. The father claiming to be the father for some benefit, but we cannot be sure. The father was complaining he should not have to do anything other. Other than what a mother did. Marry will weaken it. After all, some non gay couples have children, and some dont. Some gay some gay people marry and have children command some dont. So what is the empirical connection . That is what i have a problem within your argument. It is relatively simple. If you do you think marriage you would expect to have more children created outside of the bonds of marriage. A reasonable voter, right now the empirical part of what you just said, if you believe that marriage i just heard you say it. Because you are changing a slightly the states interest. You are talking about the states interest and bonding parents and children generally. If that was the interest that motivate this definition there would be a different answer. I have never heard of the state that said it was our state policy that we do not like adoption. I have heard of many states to say, it is very important to treat adopted children the same way that you treat natural children. I have never heard the congress. Contrary. Let me be clear. Adopted parents are heroic. You are talking about children who have for whatever reason death, disability, abuse already separated from their biological mom and dad. That is an entirely different social issue. Were talking here about a world they are connected. They are related, sure. You think about the potential adoptive parents, many of them are samesex parents who cannot have their own children and truly want to experience exactly the kind of bond you are talking about. How does it make those children better off by preventing this from happening . We have someone regardless of Sexual Orientation to adopt. But by saying that the marriage, the recognition of marriage helps the children to children, arent you . Argue . You would rather the whole basis of your argument , children and marital households. More adopted children and more marital households, whether samesex or other sex seems to be a good thing. That is a policy argument and reasonable people can disagree. Im not trying to put words in your mouth. I am just saying, it seems to me inexplicable given what you said are your policy interests. Because if you change the societal meaning of marriage , and society has started to move away from that we understood marriage to be, the more that is separated the more likely it is when you have an opposite sex couple that he will not be maintained. Link will not be maintained. More kids being raised without the biological mom and dad being raised without both parents and typically without a father but not always the case and it is not unreasonable in thinking about the possible consequences of changing a definition that has existed for millennia that might have real consequences. To say otherwise is to say it is irrational or person to think that changing an idea will have no effect on how people think. For a person to think that Justice Kagan come as we discussed, there is not a constitutional limit that tells people to marriage definition they have had for millennia is so irrational that it is unconstitutional. The fundamental rights doctrine but that is the question. Whether they are quality limits. Lets go back to the liberty limits. Sure. The right to marry, within, blocky, turner. And all of these cases will we have talked about is a right a right to marry. We did not try to find the right particularly. Is there a right to interracial marriage, right to marry if you are a prisoner . We just said there is a right to marry is fundamental and everyone is entitled unless there is some good reason for the state to exclude the so so why shouldnt we adopt the exact same understanding hear . Well, the same cases you just mentioned, every single one of those talks about marriage in the context of men and women coming together in creating children. R bursch they cannot celebrate intimacy. Justice sotomayor it seems to me that the principal issue to that. It said that you can get married if there is a child on the way. That would foster, or promote the interest. We have said that is not enough. The fundamental right to marry does but estoy an important connection that we cannot deprive the prisoner of, even if those serving life sentences have no chance of procreation. Mr. Bursch you are well aware this court ruled on to prison cases. And butler, you said someone serving a life sentence, it is appropriate for the state to deny them the right to marry because they do not have the opportunity. Lets take away all laws regarding cohabitation. If the state today decided to have no marriage, as some states have proposed, that would not violate it fundamental right. The fundamental right was to be left alone, not the right for the government to come into your home and recognize something, and give you benefits. They are two very different things. You can d job the analogy to th draw the analogy to the abortion context. In roe versus casey they say that the government cannot interfere. But, the woman cannot force the government to participate by paying for it. Our position is that the court cannot, as a constitutional matter say but yes, the state can recognize and give benefits to anyone. That is not how our fundamental rights doctrine works. Justice kagan, to get back to your point about how the constitution does put limits greater have not been any identifiable limits here that defeat the state interest. You would have to change your fundamental rights doctrine, change the equal protection doctrine. When you change those, you also change the balance between the federal courts and the people voting in the democratic process. Justice kagan to me it seems you are doing something fundamentally different and what we have done before. You are changing the constitutional rights. I dont think we have never done that. Where we have seen constitutional rights, we have not defined it by saying these people can exercise it, but these people cannot. It would be like saying in lawrence, well, there is only a rights into an activity for heterosexual people and not a right to intimate Sexual Activity for gays and lesbians. Of course, we did not do that. Once we understood that there was a right to engage in intimate activity, it was a right for everybody. Mr. Bursch absolutely. That is the states whole point, we are not trying to stepo draw distinctions. It is trying to solve a specific problem. Justice kagan you are drawing to think siobhan Sexual Orientation any laws. Mr. Bursch the state does not care about your sexual line tatian. JustinJustice Kagan that is what these laws do. Mr. Bursch what these laws do is they have disparate impact. You have to show that there is some animus that motivates this. Justice ginsburg it is not that we are of this group and they are of that group. Mr. Bursch a 100 in fact does not mean animus. We have to determine a discriminatory justice to kagan what did we say about people wearing yarmulkes to gas . That was discrimination against jews. The case that i said was what i said. Justice pr breyer i will go back and read windsor. I do not remember anything that says that the right to marry extends to only opposite sex couples. Im surprised if this court actually wrote that. If it did write that, and you can immediately call that page to mine, i will doubly looked at at it. Mr. Nbursch i apologize for not having the page. You will find in winds are that the obligation to opposite sex couples what were talking about is Justice Breyer in the fundamental right has to be a right to marry. You say it is a limitation. Justice scalia did Justice Breyer joined that . My lord Justice Breyer i is of privacy does not have this case in front of him. [laughter] mr. Bursch i do want to wrap up. Hes obviously emotional issues. The state, michigan specifically, has no animus and is not planned to take away dignity from anyone. We respect all parents and hope that they love their children. This court taking this important issue away from the people will have dramatic impacts on the democratic process and we hope that you will affirm. Justice kagan i want to say that the idea that the ms. Bonauto adults