13-4178 Kitchen v. Herbert U.S. Court of Appeals for the Tenth Circuit

Oral Argument April 10, 2014

[Transcript Created From Official Audio by Ragavendran G.]

SCHAERR: Thank you, your Honors, and good morning. Im Gene Schaerr, and Im honored to appear today on behalf of the State of Utah, its Governor, its Attorney General, who is here with us today, and its people. And, just for the Courts information, Im going to try to reserve 7 minutes for rebuttal.

JUDGE KELLY: You are the master of your own time.

SCHAERR: Thank you, your Honor. The issue before the Court is obviously not HOW the emotional and difficult issue of same sex marriage should be decided. The issue is really one of authority. That is, whether, under the federal Constitution, the States definitional authority over marriage... um... allows them not only to redefine marriage in genderless terms as the Supreme Court in Windsor held that it does, but also to retain the traditional man-woman definition of marriage, and to do so through democratic means as New York had done in the opposite direction in Windsor. So before I discuss the State interests that are served by Utahs man-woman definition, and what we see is the serious risks posed by the district courts redefinition of marriage, let me first address why this fundamental question of State authority is governed by the rational basis standard. All of the appellate court decisions that have addressed the federal question presented here, including the Eighth Circuit in Bruning, the Minnesota Supreme Court in Baker versus Nelson, which... which we think is still binding on the

lower federal courts by virtue of the Supreme Courts summary affirmance of that decision all those decisions have applied rational basis review rather than heightened scrutiny. And theyve done that because rational basis is the standard thats appropriately deferential to democracy. The district court and the Plaintiffs have nevertheless offered four arguments for some form of heightened scrutiny, but none of those is sound indeed, as the district court itself recognized, the Plaintiffs argument for heightened scrutiny based on sexual orientation is foreclosed by this Courts decision in Price-Cornelison. And in fact, most of the Plaintiffs other arguments would imply a right to such things as polygamous marriages, which as the Court may know, is a significant issue in Utah. Now, one example is the argument that the Plaintiffs have a fundamental right to marry the person of their choice. The Supreme Court has never recognized such a broad fundamental right to marriage, despite being urged by the United States, in the Windsor case, to adopt that very position. But they declined to do that in Windsor. And in fact, to the contrary, Windsor really destroys that argument as to same sex marriage by noting that until recently, most people considered a man-woman union essential to the very definition of the term marriage. And that of course means - under the Supreme Courts decision in Glucksberg - that means that the alleged right to same sex marriage is not, in fact, already so embedded in our laws and our traditions as to be required by ordered liberty.

JUDGE HOLMES: Before we get to Glucksberg, lets focus on Loving for a second.

SCHAERR: Sure.

JUDGE HOLMES: In Loving, you had a classification that the State argued they made an argument of equal application in that case as well as it relates to the man and the woman involved, but there was a

classification - what barred them from getting married, was race. And, in this instance, why is that any different? You have a man, who wants to marry another man - the only thing that bars him from getting married, is sex. Gender. So why is that any different than Loving, when you are drawing a line that is based upon a protected classification? Why shouldnt this be the situation of evaluating the gender for inter... intermediate scrutiny?

SCHAERR: Well, a couple of answers to that, your Honor. First of all, the Supreme Courts decision in Loving did not intrude into the State of Virginias definitional authority over marriage. The exclusion of mixed race couples was a regulatory exclusion. In fact, when you look at the statutes that are laid out in the Supreme Courts opinion, they made clear that marriage was defined as the union of a man and a woman, and then in a separate provision, the Court made it a cr... or the State made it a crime for a mixed race couple to marry.

JUDGE HOLMES: Which made that mixed race couple, in fact, sort of an other for purposes of marriage, and why isnt that any different than this situation where, essentially, were saying that this is an other classification, and consequently, is barred from marriage?

SCHAERR: Well, your Honor, for one thing, Loving was obviously based on a racial classification, which is... which is subject to higher scrutiny-

JUDGE HOLMES: Right, but right now, Im not talking about whether to get susp... get... a heightened level of scrutiny. What Im talking about as it relates to the question whether it gets intermediate scrutiny- Im sorry - not talking about whether it gets strict scrutiny as it relates to intermediate scrutiny, why does it matter th... why

does it NOT matter that it all turned on the protected classification? In Loving it was race, in this case it is gender.

SCHAERR: I think the answer to that, your Honor, is... is because in Loving, the Supreme Court found that the miscegenation statute was designed to maintain white supremacy, that is, it was designed to give whites an advantage over African Americans. And, by the way, even the way the classification worked, it was... it was inhere... it was racially discriminatory because it... it treated different... different races differently it wasnt just whites versus blacks, there wa... there... there was also discrimination among other races as well. But-

JUDGE LUCERO: Th... The question of whether marriage is a fundamental right-

SCHAERR: Yes.

JUDGE LUCERO: Whenever the Court has spoken whether its Cleveland Board of Education, whether its in Carey, whether its in Miller v... Maynard v. Hill, any of these cases it always speaks as a... marriage is a fundamental right.

SCHAERR: Yes.

JUDGE LUCERO: We start that as a... as a first principle, can we agree that... that marriage is a fundamental right?

SCHAERR: Marriage, as traditionally understood, is a fundamental right. Thats correct, your Honor.

JUDGE LUCERO: In your briefs, you argue that the question is not whether marriage, HERE, is a right, but whether same sex marriage is a right. Has... have we ever... In the Courts determination in any of its cases, has it ever parsed so finely as to... as to make that kind of a distinction? For exa... example, in Loving it never spoke in terms of... of... in... in the misc... in the miscegenation issues, whether it was a right as among races, for example.

SCHAERR: Right. Well, I think in Loving, your Hono... your Honor Loving is a good example where the whole presumption in Loving is that we were talking about a man-woman marriage, because one of the things that the Court said when it was talking about the importance of the right to marriage, is that its fundamental to procreating and maintaining the... the human race. Um... And... um... and thats true in the other fundamental right to marry decisions Zablocki, for example, talked about how people have a fundamental right to marry and raise children in the traditional family setting.

JUDGE HOLMES: But why isnt Zablocki a good example of a situation where the Court did NOT parse more finely in terms of defining a fundamental right to marry it didnt talk about fundamental rights to get marry for deadbeat dads, it talked about a fundamental right to get married. And so, in other words, to the argument that was raised by your... opposing counsel WHY does it matter whos claiming the right? I mean, its a fundamental right, and why does it matter the participants in that enterprise? In marriage itself, which the Supreme Court has talked about in contexts other than procreation, uh... why does it matter?

SCHAERR: Because, your Honor, this raises the whole question of what marriage IS. You really cant answer that - the question of how far the

fundamental right to marriage extends until youve decided what marriage IS, which is the point that Justice Alito raised, um... in Windsor. And he... he said that... you have on the one hand, uh... the traditional, child-centric vision, in which marriage as he quoted is essentially - and Im quoting is essentially the solemnization of a comprehensive, exclusive... union, intrinsically ordered to producing new life, even if it doesnt always do so. So thats... thats the traditional vision of marriage, and that is Utahs vision of marriage. On the other hand, as he described it, you have whats c... whats come to be called the consent or the relationship vision of marriage, which focuses, as he said, on... on mutual commitment-

JUDGE LUCERO: Here... Here you are quoting Justice Scalia?

SCHAERR: Im quoting Justice Alito.

JUDGE LUCERO: Alito?

SCHAERR: Right. The focus... He says-

JUDGE HOLMES: This- Its a dissent, right?

SCHAERR: It was a dissent, but-

JUDGE HOLMES: Okay.

SCHAERR: -ther... there was no... ther... there was and is no disagreement expressed by the members of the Supreme Court on THIS

point. Nobody dis... nobody disputed that there is this fundamental underlying issue about what marriage is.

JUDGE HOLMES: There is that issue, but the question becomes, has the Supreme Court exclusively defined marriage, to reflect this conjugal I think that was the term that Justice Alito used, right? the conjugal vision of marriage?

SCHAERR: Yes, I... And, I think that was Justice Alitos term as well, a... and... and no, the an... the Supreme Court has not done that. Indeed, under Wi... under Windsor, it... it... it wouldnt be appropriate for the Supreme Court uh... to resolve this fundamental clash of different visions of marriage that was the whole point of Windsor is thats not a proper federal function, thats a proper State function. The States have, as the Court put it, uh... virtually complete authority over the definition of marriage.

JUDGE LUCERO: In turning to Windsor, I mean... let me tell you what causes ME concern.

SCHAERR: Okay.

JUDGE LUCERO: There is no question, and I think, Justice Scalia in his dissent, I mean, REALLY highlights it, that when the Court was speaking in Windsor about marriage, that, it very clearly indicated gave a direction that it was going to be talking about federalism-

SCHAERR: Yes.

JUDGE LUCERO: But in fact, when it came time to the dispositive language of... of Windsor, it... it essentially not even essentially, but directly disavowed a... a decision that would be predicated on federalism, and instead turned to equal protection and due process as the deciding elements of that case. I address YOUR view of - and... you... you assert in your brief, but I was not fully persuaded that your view prevails, that is to say that federalism is the ONLY touchstone of that case.

SCHAERR: I agree with you federalism was not the only touchstone, but the... the federalism premise - that the States have virtually complete authority to define marriage - was the premise of the Courts analysis of the individual rights involved. I mean... Windsor was very much like a takings case, right, where, its State law that determines the scope of the relevant property right, and then you determine under federal law where there has been a taking. Win... That was exactly the style of analys... analysis that Windsor undertook.

JUDGE HOLMES: Didnt Windsor, in at least two places, bracket this concept of the States right to define marriage with the... with the qualification: subject to Constitutional rights? And in one place in particular, cited Loving for that proposition, which would lead us to believe that, YES, the State has this authority, which everybody acknowledges,-

SCHAERR: Sure.

JUDGE HOLMES: -to define marriage, but subject to not violating individual rights of those people who are involved, right?

SCHAERR: That... Thats absolutely right, but also to the Loving point, your Honor, its significant that... that the Court in Windsor did NOT draw an analogy to Loving, uh... of the sort that the Plaintiffs have done here, and that the district court did below. The Court simply cited Loving for that uncontestable proposition that the States authority is limited by the federal Constitution. Again, if were asking, is there a fundamental right to marry that includes same sex couples, you have to first decide what marriage is. And... and, New York, in Windsor, had decided that marriage was... that... they were going to adopt the more modern, adult relationship model of marriage such that marriage could be a union of any two people who love each other, essentially. Uh-

JUDGE LUCERO: Judge Shelby - and... and his decision is under review he said that the issue is NOT the definition of... definition of marriage whether the federal court should impose a definition of marriage but rather, whether the... in its exercise of its authority, the State of Utah may properly deny a... a same sex marriage, uh... without violating the federal Constitutional principles. And... I... I... I... thats... thats really the issue before-

SCHAERR: Well, I agree. And I agree that the district court said that, your Honor, but then the Court went on and did exactly what it said it was not going to do if you look at page 28 of the Courts opinion, the Court gives its OWN definition of marriage for purposes of the fundamental right it defines marriage as a public commitment to form an exclusive relationship and create a family with a partner with whom the person shares an intimate and sustaining emotional bond.

JUDGE HOLMES: We... Were under de novo review-

SCHAERR: I... I understand. But-

JUDGE HOLMES: What the district court chooses to do, really, is not particularly relevant to the ul... ultimate determination, is it?

SCHAERR: Uh... Understood, your Honor, but it does illustrate the point that you really cant answer the question of whether theres a fundamental right without first deciding what marriage IS, and thats a decision that is fundamentally left to the Courts subject to some Constitutional limits, um... as in Zablocki, and... and Loving, and other cases, but um... but the States have virtually plenary authority to decide what vision of marriage... what model of marriage are we going to adopt in this State.

JUDGE HOLMES: Could... Could I just shift your attention-

SCHAERR: Yes-

JUDGE HOLMES: -somewhat mundane point for a moment? When you... When you got up, you said that you were representing the Governor and the Attorney General of Utah.

SCHAERR: Yes.

JUDGE HOLMES: The Salt... Clerk of Salt Lake City was sued below, right?

SCHAERR: Right.

JUDGE HOLMES: And she is not... before us on appeal?

SCHAERR: She is a party, I believe. I... I believe she is technically a... a... an... an Appellee, but she has not appeared.

JUDGE HOLMES: Okay, she has not appeared. And... and, what is the authority of the Governor and the Attorney General of Utah with respect to enforcement of these particular provisions the ban and the non-recognition clause? What authority, beyond being general law enforcement officers of Utah, does the Governor and the Attorney General have?

SCHAERR: Wh... they have the authority to determine the policies, for example, of... of State Government agencies toward marriage whether... whether those agencies will recognize marriages or not, and of course, thats become a big issue in light of the... the absence of a stay in this case - that there were a number of couples that were married, and then... its under the Governors and the Attorney Generals authority to decide how the agencies of the State are going to treat those marriages.

JUDGE HOLMES: But could they stop... do they have the authority... I mean... the two allegations here are, one... or maybe more, but the two principal ones are, one, uh... the Plaintiffs want to be married and are being denied the right to be married, two, uh... one marriage exists and they want it recognized as a marriage what direct role does the Governor or the Attorney General have in doing either one of those things-

SCHAERR: Well, they-

JUDGE HOLMES: -issuing marriage licenses or recognizing uh... foreign marriages that have been established?

SCHAERR: They set the policy for the agencies of the State Government with respect to... for example, with respect to marriages that are undertaken outside the State, uh... people will go to the State agencies, for example, the... the State Taxing and Revenue Authority, uh... and... and that authority will have to determine, are we going to recognize this couple as married, for tax purposes, or not? And the Governor and the Attorney General control those... those matters.

JUDGE LUCERO: Let... Let me... let me... while were on that broad... is... it seems to me that the Governor and the Attorney General would have broad plenary a... authority with respect to the enforcement of Amendment 3, but... let me ask you... this. Because our time will run short. The children of gay marriage couples, whose marriages have been recognized in another State, such as, Iowa-

SCHAERR: Yes.

JUDGE LUCERO: How will the State, uh... treat the children of those couples, given Amendment 3 and its statutory scheme? And how can that treatment be squared with your argument uh... of a... marriage is... the marriage institution being a child-centric uh... institution?

SCHAERR: Oh... well... To answer the... the more technical question first, your Honor... um... Well, y... um... let me answer the second question first. In fact, um... the... there i... there is no question that children of same sex couples would likely be better off, if their... er... guardians or parents were... were allowed to marry, just

as the children of... of some forty thousand polygamous um... men and women [interruption] in Utah would be... would be better off-

JUDGE LUCERO: Therell be plenty of time to talk about polygamy someday-

SCHAERR: Well, thats right.

JUDGE LUCERO: -but lets talk about gay marriage today.

SCHAERR: But... but... y... but the State has to worry about both of those things at the same time, your Honor. And thats why... thats why I mention it. But as... as Romer said, virtually all legislation classifies in some way with resulting disadvantages to some groups and individuals-

JUDGE LUCERO: In this case, children.

SCHAERR: -and, and... and the question is, is... are the States interests of... er... are they... are they legitimate, first of all, and is what the State has chosen the policy that the State has chosen does that policy adequately advance those interests, um... and on that point, your Honor, if I could, Id like to er... Id like to discuss [interrupted] what those interests are-

JUDGE LUCERO: Could... could we... could we turn to my first question-

SCHAERR: Yes.

JUDGE LUCERO: -first, and then... then well get to that. How will the State of Utah treat and recognize the status of children of couples... of gay couples who have been married in a State in which that marriage was properly recognized, uh... but then came to Utah?

SCHAERR: And Im sorry, your Honor, I didnt... I wasnt ready, I made your-

JUDGE LUCERO: Well, I know youre not, but I think its important-

SCHAERR: It is.

JUDGE LUCERO: -because Id like to get an answer-

SCHAERR: Yes.

JUDGE LUCERO: -to that question.

SCHAERR: And... And the answer is very simple: Under Amendment 3, the State is not ALLOWED to recognize those marriages in any form. Now the federal Government recognizes them, and so those couples and their children are able to get federal benefits now, uh... but the State is not allowed, under Amendment 3, to recognize them, and so that... that really raises that question-

JUDGE LUCERO: Doesnt that... doesnt that stigmatize those children that... wasnt that precisely uh... the concern that Justice Kennedy expressed in Windsor, and that, to some degree, motivated his decision in that case?

SCHAERR: Well, I think the stigma that he was talking about, specifically, was the stigma of being in a second class marriage that is, the couples there in Windsor were actually married pursuant to State law, but Section 2 of DOMA... Section 3 of DOMA told them, even though youre legally married under State law, the federal Government is not going to recognize your marriage and that... and that essentially made them... er... participants of second class marriages, and... and the Court held that th... that demeaned them for that reason. But... you know, theres... there is no question that theres... that there are tradeoffs in... in policies like this, and so the real question is, what are the States interests, and are those interests sufficient to justify Utahs decision to re... to retain the traditional man-woman definition of marriage [clears throat] excuse me. And again, under the rational basis standard, because its [clears throat] deferential to democracy, uh... that standard will invalidate uh... classification only if it doesnt serve any legitimate interest. And here, there are at least four State interests that Id like to discuss briefly that pertain to parenting, and in... indeed, are some of the main reasons that the State of Utah recognizes and gives benefits to married couples in the first place, and those interests also give rise to the risks that weve identifies in our brief-

JUDGE KELLY: In... In that respect, are there any adjudicative facts that are controverted in this case, as it... as it sits before us today?

SCHAERR: I dont think so, your Honor. I think all the relevant facts are legislated facts. Uh...

JUDGE KELLY: You dont think animus is an adjudicative fact?

SCHAERR: Well, the district court rejected the Plaintiffs argument for animus.

JUDGE KELLY: Alright.

SCHAERR: So... so... and obviously, were not disputing that conclusion. Uh... But the first interest that Id like to discuss briefly is the States interest in gender diverse parenting. Uh... which reflects Justice Brennans common sense view expressed in the Bowen case that the best situation for a child is to have both an involved mother and an involved father. And, gender diversity in parenting, we think, is as legitimate a Governmental interest as the interest in gender and racial diversity in education, which, the Supreme Court has held, is a compelling interest. Uh... and indeed, gender diversity was one of the reasons that the New York Court of Appeals plurality in Hernandez concluded that New Yorks then man-woman marriage definition had a rational basis. So you might ask, well, HOW does the man-woman definition of marriage advance THAT interest? One answer to that flows from the Supreme Courts decision in Johnson versus Robinson, which holds that a classification that includes one group and not another is rational, if the included group is, in general, differently situated with respect to a legitimate Governmental interest.

JUDGE LUCERO: But-

SCHAERR: And that principle-

JUDGE LUCERO: -and... and I agree with you that the State of Utah may indeed have a legitimate... points to make at that. Let me say... just parenthetically that... I... I found and I believe my colleagues did

as well the... the amicus briefs in THIS case to be particularly helpful in a broad range of topics... They were very helpful to enlighten us uh... on the point. Now, TO the point th... your first point, that Utah has these policies. What I dont understand, is how pursuing those policies, somehow, is contradictory to allowing a stable relationship between non-heterosexual couples. I mean... WHY is a heterosexual couple MORE likely to get married if... if gay couples ARENT allowed to get married? WHY is the relationship between a heterosexual couple and their children why would it be stronger if... merely because gay couples arent allowed to have such a relationship? I dont... I dont understand the causal connection between the two.

SCHAERR: Well, and your Honor mentioned talking about amicus briefs, theres an amicus brief by Professors Hawkins and Carroll that addresses that very point with respect to the children of heterosexual couples. Um... But... but lets just take, for a moment, the States interest in gender diverse parenting to answer your... to answer that question. Um... We believe that redefining marriage in genderless terms, uh... and moving from the man-woman definition, uh... and... and the man-woman definition inherently, although subtly, conveys a message and Justice Kennedy has said that the law is a teacher the man-woman marriage conveys the message that a mom and dad are important. Okay? And when you redefine marriage in general... in... in genderless terms, uh... you dilute that message, and you... and you dilute that norm in the law. And so, as Professor... Professors Hawkins and Carroll say, one of the messages of that to heterosexual men is, we really dont need you to have a happy marriage, or a... a productive marriage, and we really dont need you for your children, because weve now set up this alternative arrangement, where... where two women can get married, and... and they could be impregnated art... artificially and they can create their own family without a man, and that... and that sends a message that teaches, in Justice Kennedys words, that... that gender is just not really that important, and that... and that dads are not

that important. And, um... in that regard, I... I just wanted to share with the Court, something that I found in... in one of the record materials that we submitted I dont think we highlight it in our brief but its on page 983 of the Appendix, and this is an explanation from a... a... a commentator by the name of Maggie Gallagher about why fathers, especially, are important in the lives of their kids, why they play a unique and valuable and an important role. She says, what a boy gets from experiencing the dependable love of a father is a deep, personal experience of masculinity that is pro-social, pro-woman, and pro-child. And without this personal experience of maleness, a boy, who, like all human beings, or at least all boys, is deeply driven to seek some meaning for masculinity, is vulnerable to a variety of peer and market driven alternative definitions of masculinity and those are often grounded in aggression, physical strength, and sexual proclivities. And she continues that the importance of a father in giving a boy a deeply pro-social sense of his own masculinity may be one reason why wh... one large national study found that boys raised outside of intact marriages were two to three times more likely to commit a crime leading to imprisonment.

JUDGE LUCERO: But, is that... were those marriages of gay couples, or marriages from divorce? And are you pointing to divorce as the problem, or to gay marriage as the problem?

SCHAERR: Well, were po... were pointing to fatherlessness, in general, as the problem, and... and, one of the norms of the current man-woman definition of marriage and the... and the current conjugal vision of marriage, is that moms and dads are important. They play independent, complementary, but important roles, and... and if you change the definition of marriage, you are, as the... as the district courts opinion illustrates, you are necessarily also changing the vision of marriage thats embodied in the law, and the law being a teacher,

that... that has real world effects um... on... on individuals. Or, at least, your Honor, there is a significant risk that that will happen. Same sex marriage is too new, obviously, to... as Justice Alito pointed out in Windsor, for... for there to be conclusive statistical evidence about its impacts.

JUDGE HOLMES: And... and on that ground, it seems to me, how do you pronounce his name, Professor Regnerus, or something of that sort-

SCHAERR: Yes.

JUDGE HOLMES: -as... as recently as, I guess yesterday, it seemed that you were backpedalling from the view that you took in the brief as... in support of his theory that uh... that uh... same sex marriage uh... relationships, we have inferior results as it relates to child rearing. If... if... is that true? Whats left of your support for his... his theory, if anything?

SCHAERR: Well, we submitted that letter just because we wanted to be sure that the Court understands that we are not trying to overstate uh... what his... what his studies show. The bottom line from all of that is that um... and... and the judge in Detroit recognized this same fact the bottom line is that the science is inconclusive, as-

JUDGE HOLMES: Well, if the science is inconclusive, and were at anything above rational basis, you lose on that point, right?

SCHAERR: [long pause] I dont think so, your Honor.

JUDGE HOLMES: Why?

SCHAERR: Because the Court... becau... because the Court can also rely on... can also rely on common sense, it can rely on the fact that this is still new, it can rely on the fact that... that the State is responding to the risk, and... and Governments are entitled to legislate and regulate on the basis of risks that they perceive to their populations even when those risks have not been proven uh... to be a problem.

JUDGE HOLMES: That same argument, then, would have resonance under intermediate or... or... or strict scrutiny, youre telling me?

SCHAERR: I... I think it would. In fact, there are... there are cases from this circuit that say at a minimum, that thats... that thats a legitimate mode of enquiry under inter... under intermediate scrutiny, yes. Uh... and we cited those in our briefs. Um...

JUDGE LUCERO: Youre... uh... just under your time... just...

SCHAERR: Th... Thank you, your Honor. Um... well, thank you.

[JUDGES WHISPER AMONGST THEMSELVES; SOME DISCERNIBLE PHRASES: maybe we can give him (HOLMES?), a few more minutes? (HOLMES?), if you want to, we can (LUCERO?)] =====================================================================

TOMSIC: Good morning, your Honors. Peggy Tomsic-

JUDGE KELLY: You want to pull that microphone down, please? There you go.

TOMSIC: Yes. Sorry about that Im not quite as tall.

JUDGE KELLY: Right.

TOMSIC: Good morning. Im Peggy Tomsic. Im here on behalf of the Plaintiffs and Appellees. As this Court knows, the people of the United States, in 1869, amended our Constitution to add the Fourteenth Amendment. That amendment became part of our federalist system, and remains so today. Under the Fourteenth Amendment, the people of this Nation wanted to ensure that no State could treat citizens within its jurisdiction unequally, or deprive them of their fundamental rights and liberty interests. Every State, including the State of Utah, is bound by the guarantees and protections of the Fourteenth Amendment for every single citizen in its State. Utahs marriage discrimination laws violate Plaintiffs and other same sex couples living in Utah equal protection rights and due process rights guaranteed by the Fourteenth Amendment.

JUDGE KELLY: What is our standard of review in this case, Counsel?

TOMSIC: Im sorry?

JUDGE KELLY: What is our standard of review in-

TOMISC: It is a de novo review, because it is a legal issue, your Honor.

JUDGE KELLY: Alright. And... and, what level of scrutiny should we apply to this case?

TOMSIC: Our position, your Honor, is that, with regard to the equal protection claims, this Court should apply a heightened level of scrutiny, either based on the careful consideration analytical framework established in the Windsor decision, which began in Romer, or, under a gender or sexual orientation suspect classification.

JUDGE KELLY: And what do we do about our Price-Cornelison case?

TOMSIC: Your Honor, with all due respect, we disagree with the States and with Judge Shelbys interpretation of that decision. In that decision, the Plaintiff, who had asserted below that strict, not intermediate, scrutiny applied in that case, did not present that issue on appeal. And, therefore, the language of the Court, first, was talking about strict scrutiny, and it was dicta in the sense it had nothing to with the issue before the Court that was being decided at that time. And even the ca-

JUDGE LUCERO: If we disagree with you, uh... do we... does Price-Cornelius [sic] speak to both the due process and the equal protection arguments, or do... or does it speak only to due process and not equal protection, or vice versa?

TOMSIC: Uh... Your Honor, our reading of that case is that the case speaks to equal protection and not due process. Because, in this particular case, we have made the claim, and the district court found, that there is a fundamental right to marriage protected by the to...

due process clause, and where you have a fundamental right that is intruded upon and disallowed, the Courts trateg... traditionally have applied strict scrutiny, which is the highest level of scrutiny as your Honors know.

JUDGE HOLMES: And on Price-Cornelis... uh... on the Price case, um... would you acknowledge there is a distinction between sexual orientation uh... as a suspect class... as a classification, and sex? Gender? In other words, they are two distinct things... I mean, there could be a basis for intermediate scrutiny for gender/sex discrimination that doesnt exist for sexual orientation discrimination, right?

TOMSIC: Uh... That is exactly right, your Honor. And we have asked this Court to apply heightened scrutin... scrutiny based on either one of those classifications, and in fact - I know youre not bound by Judge Shelbys findings, but he did find that Amendment 3 and the related marriage discrimination statutes uh... violated the Plaintiffs rights because of gender discrimination.

JUDGE KELLY: Well, he was basing that on rational review, was he not?

TOMSIC: Uh... my understanding of his decision, your Honor, is, what he said was that, while there was gender based discrimination, which would require heightened scrutiny, he did not need to reach that issue, because the laws fail under rational basis review.

JUDGE KELLY: Alright. And under rational basis review, uh... just because you disagree with the States reason, doesnt make it irrational, does it?

TOMSIC: Uh... No, your Honor. And I dont... I dont believe that that is our argument. Rational basis review, as this Court, in a number of decisions has acknowledged, and certainly the Supreme Court, in a number of decisions has acknowledged, that while it is a deferential standard to the legislature, it is not a toothless standard. And it may not be based on flimsy rationales that have no footing in reality. And our point is that we-

JUDGE KELLY: Do we then get to a... a... an issue of fact, that we need to have a trial on? Is this summary judgment.

TOMSIC: Uh-

JUDGE KELLY: And... you know... one sides presented one rational... rationale, and the other side has presented another. And... can the Court make that determination based on a bunch of sociological papers that were presented to it?

TOMSIC: Id like to answer that in three parts-

JUDGE KELLY: Okay.

TOMSIC: -if I could, your Honor. Is... First of all, if you look at the State interests that have been asserted here, they are fundamentally, and in fact, word for word in some instances, the same rationales that were asserted by BLAG before the Supreme Court in Windsor. And Windsor, without a trial, found that none of those justifications overcame the purpose or effect to disadvantage and to harm the children.

JUDGE KELLY: Well... Didnt Windsor though, focus on the fact that the State had approved... had... had adopted a... a particular uh... standard? Theyd agreed that... that gay marriage - or same sex marriage is a better term, I think uh... would be permitted, and under DOMA, the federal Government was interfering with that States decision? And in fact, that it may have also impacted uh... children and people uh... was... it was there, certainly.

TOMISC: Uh... your Honor, our reading of Windsor is a little broader than that, and that is that, while the Court certainly talked about the States power to govern in this area... uh... of defining marriage and regulating marriage, the Court went on to expressly hold that it was striking down DOMA because it violated basic principles of due process and equal protection. And, the Court in fact, was looking at the violations of liberty and equal protection interests protected by the Fifth Amendment - when it struck down DOMA - and the injury and harm it was looking to, is exactly the same type of injury and harm that occurs with regard to these marriage discrimination laws. In fact, the State of Utah has conceded that the harm that the Plaintiffs have alleged and in fact we have demonstrated, in fact exists as a result of those. But let me come back to your question on it... on the question of summary judgment. And the other thing I think that is important, your Honor, is, second, no party in this case believes there is any material issue of fact. If anything, the sociological studies present... uh... legislative facts. And-

JUDGE KELLY: Well, youre saying that the legislative facts... you... you can just ignore those.

TOMSIC: Uh... No, what Im saying is, those legislative facts would not be subject to a trial. But even with regard to the social science - and I think you saw it when the State backed away from and it gave up its

reliance on the Regnerus study is, there is no study presented to this Court that in fact measures the only issue that existed as one of the States primary arguments, which was that same sex parenting is not as good as what they call uh... the man-woman marriage. And there isnt a single sociological study they cited that is on point. And every organization in this Nation that is responsible for the mental and physical health of children and adolescents, over forty years of testing, have-

JUDGE KELLY: Forty years?! We havent had same gender marriage but for, about TEN years!

TOMSIC: Not marriage, your honor, but same sex couples have been forming bonded, long term relationships and raising children for many, many years.

JUDGE HOLMES: But, some of those studies have been cri... criticized for having small samp... samples and not having the sort of analytical rigor that would allow us to draw any conclusions, so my... my question, it seems to me, is that, this all is going to turn on standard of review and... and... and... and let me hear you respond to this: it seems to me that, if we end up in a situation where the best the State can say and right now, it appears the best the State can say is that it is inconclusive whether same sex marriage will result in inferior results, and that there is a debate about that. If we are at... under any heightened level of scrutiny to the question that I asked opposing counsel, it seems to me on THAT particular point, they lose. Do you agree?

TOMSIC: I absolutely agree-

JUDGE HOLMES: Alright. Well, this is what you may NOT agree with it seems to me, given that same question, under rational basis review, I dont see how you win. Because they have a... because if its inconclusive, and they have a risk, and they have a valid basis to address it, why does that allow - you know, again, it gets back to the point Judge Kelly made, youve a disagreement. So, why cant the... the State do what it wants to do?

TOMSIC: With all due respect-

JUDGE HOMES: Yea-

TOMSIC: -your Honor, [small laugh] uh... I disagree with you, and... I... I want to look at it from this point of view is... under the rational basis test, there are really two requirements one is that there be a... an independent and legitimate State interest. And lets assume that they meet that because there is this arguable disagreement. Well, we dont agree with that, but lets just say thats the state of the record. The second part of the test requires that there be a nexus between that State interest and the classifications at issue. And in this case, the classification is the exclusion of same sex couples from marriage. There is-

JUDGE KELLY: But youve just taken the position that theyre just wrong on that. And if they were correct, if there was some type of a nexus, uh... you cant just say, I... I... I disagree with your nexus.

TOMSIC: Well, er-

JUDGE KELLY: It is a democ... weve got a legislative and a... and a democratic uh... situation here. Weve got people thatve voted, weve got a legislature that has legislated. Uh... and if they thought there was something there, uh... can we just say, well, youre wrong? And if a... if a group stands up and says loud enough, well just ignore what the people have... have decided and what the legislature has done, i.e., polygamy, why... why should we discriminate against people that want to have two wives or three wives versus people that want to marry the same gender? It seems to me it all goes together.

TOMSIC: Uh... I think there are a number of questions in there, er... your Honor.

JUDGE LUCERO: There... There are a number of questions that Id like to interpose one uh... as well-

[JUDGES LOL, ESPECIALLY KELLY] TOMSIC: [laughing] Okay, so welc... alright...

JUDGE LUCERO: -and then have you consider the whole, because this is... pertains to all of these.

TOMSIC: Alright.

JUDGE LUCERO: I think an overarching question to all of these points is that, the very arguments that were made in Baker v. Nelson here, were made to the Supreme Court in the decisions that were considered by Justice Kennedy. The very argument about scrutiny, and the level of scrutiny, were presented to the Supreme Court as well. And yet, the Supreme Court, in deciding Windsor, did not choose to pick a particular label to place on the scrutiny that it chose to apply, but any reading

of that has led EVERY SINGLE FEDERAL COURT that has looked at the issue after Windsor to conclude that even under the most relaxed of scrutinies rational basis that the... the... that the law does not allow the type of discriminatory behavior uh... that is pres... that is at issue in these types of cases. So my question is, does Windsor trump all of Jus... Judge Kellys and all of Judge Holmess and all of Judge Luceros questions on this point?

TOMSIC: Our position is, it is, but, Ill get to why it doesnt matter even if you go under rational basis review so... and Ill get back to you, Judge Kelly, if I could start uh... with Judge Lucero, and kind of run across uh-

JUDGE HOLMES: Ill keep my mouth shut for the moment, counsel. [AUDIBLE LAUGHTER IN THE COURTROOM] TOMSIC: Oh... Oh, please dont, your Honor. Your questions are very good. Uh... Windsor, in fact, trumps any argument that the only level of review that these type of laws are subject to is rational basis. The reason I say that, is while Windsor never put a label on the scrutiny that it was applying, what it did is, it looked to the Romer decision, where the Supreme Court struck down the Second Amendment of the Colorado Constitution, and where Romer said, where you have a law that categorizes a group of people based on a single strait... uh... trait, which in that case was being gay or lesbian, that is a rare law in our jurisprudence. And where you have them being discriminated against and pre... treated dissimilarly for the purpose of making them unequal, the Court applies careful consideration to make sure that the purpose and effect of those laws are not to harm the class. And, in Windsor, in looking at the analysis in Romer, applied a careful consideration analysis that - in reading it - does not resemble rational basis. Instead, the beginning point is to look at the design, purpose, and practical effect of the law, and if you find even if you just look at

the text of the law, as you can certainly do under this Courts Vigil decision to determine if there is an intent to discriminate and you find that the purpose and effect is to treat this class separately... separately, and make them unequal, and you have these kind of harms that the ca... State concedes exist in this case - probably to a higher extent than they existed under DOMA, because it is everyday of these Utah citizens lives that they ma... must face this stigma, the harm, the being treated as second class citizens the burden shifts to the State, and the State must come forward with legitimate interests that overcome the pr... the principal purpose and practical effect that damages these individuals who are the target.

JUDGE HOLMES: Well, is legitimate interests I said I would keep quiet, but let me interject here is legitimate interests really language of rational ba... uh... uh... of heightened scrutiny? I think that is rational basis talk, isnt it?

TOMSIC: Uh... the word legitimate interests comes from rational basis, your Honor.

JUDGE HOLMES: Yes...

TOMSIC: But the analysis that the Court used in Windsor is not a rational basis analysis, and the legitimate interests that the Supreme Court in Windsor found did not overcome the purpose and effect, are the same interests that are being asserted here by the Court... uh... by the State.

JUDGE HOLMES: But thats... but thats an animus argument, isnt it? And... and... and the... Judge... Judge Shelby didnt find animus,

and... and Im struggling to see how that really is applicable here. I think it... is the Hernandez case perhaps a... out of... out of the New York Court of Appeals, where the Court spoke about the notion that up until what 2010, no one even thought of the notion of recognizing, as a legal matter, same sex marriage. So what has Utah done is validated what has been an historical practice for EVER. How could that be viewed on the same footing as Romer, where they went in and attempted to essentially say that same sex couples or anybody on... on se... on uh... sexual orientation grounds is barred from legal relief. Those are two different things, arent they?

TOMSIC: They are not, your Honor. In Romer, what the Court was looking at was, what does the targeted to the class do? That is, how are you differentiating between these classes of individuals, and are you differentiating to treat them unequally? And if thats the situation, that is a very rare type of law. And you can talk about semantics, but there is no question, looking at the text of Amendment 3 and the other marriage discrimination laws, is... that the only thing those laws did was target same sex couples and make them unequally. None of those laws established the right to marry, gave benefits, or gave incentives. Their only purpose and effect was to exclude same sex couples from marriage or marriage recognition.

JUDGE HOLMES: Why couldnt it be viewed as saying that the only purpose and effect was to validate what has been an historical practice for eons? Why is that... why couldnt it be said thats all theyre doing? We want to be CLEAR this historical practice is the one that Utah supports. Period.

TOMSIC: Because, your Honor, when you have at least three... two statutes and a Constitutional amendment that is directed at excluding only one class of individuals from marriage, it is not to reaffirm. It

is to exclude. And if you follow the analysis in Windsor, and even... let me start with the text of Amendment 3. If you look at what they did, in the first part, what they did is, they... they said - only man and woman can marry. But they didnt stop there. Thats not just a validation, your Honor.

JUDGE KELLY: If they stopped there, would that be okay?

TOMSIC: No, it would not. Because, still um... they are treating same sex couples unequally. What Im doing-

JUDGE KELLY: But, whenever you draw lines, dont you... in some cases, you are over-inclusive and in other cases, you may be under-inclusive? And does that make it irrational, because everybodys not in the same class, if you will?

TOMSIC: Uh... your Honor, let me try two answers to that question, if I could. First of all, theres no question that under rational basis review, there does not need to be a perfect fit. But the law is clear and I think you can look at Romer again, where they found the law both over-inclusive and under-inclusive. And thats exactly what we have here. It is under-inclusive because it doesnt prohibit people from getting married who do not want to procreate or cant procreate. It is over-inclusive because it keeps out same sex couples who already have children or want to procreate. And if you look at the Zablocki case, the Court in that case, in striking down the State law that kept uh... single people from getting contraceptives, they said, when you have law that is so riddled with exceptions, the Court cannot find a rational relationship or a nexus between whatever State purpose the Court... or the State is trying to assert, and accomplishing that purpose. And I want to go back to the second part of Amendment 3 if I

could. The State of Utah just doesnt treat same sex couples as second class citizens in Part A, it goes on to punctuate the point by saying, no legal relationship will ever be recognized that gives the same rights and benefits that opposite sex couples get if they get married. And if youre talking about animus, your Honor, youre not talking about people being mean-spirited, or having ill-will, or being bad people. Animus is used by the Supreme Court of the United States - both in Romer and as expressed in Windsor - is talking about an improper purpose-

JUDGE KELLY: Well, we dont have animus at issue in this case, do we?

TOMSIC: Uh... Judge Shelby found there was no animus, if thats your question. Our... Our argument is yes, there is animus, because animus is a-

JUDGE KELLY: Well, now, thats a fact-opinion issue.

TOMSIC: No, it is not, your Honor-

JUDGE KELLY: I beg to differ with you. You... you cannot take a legislators statement on either side of an issue, and tag the legislation one way or the other. Weve never done that in the past.

TOMSIC: Uh... what you CAN do, your Honor, is look at the text of the document. And, if you simply look at the text of Amendment 3, the intent to exclude same sex couples and make them unequal is inherent in... on the face of the document.

JUDGE KELLY: Well, it is. It is a violation... Utahs taken the position that its a violation of their public policy... to... to permit same gender marriage. Now, they may be wrong, uh... but does that express um... from a legal standpoint that they were being mean-spirited and bigoted?

TOMSIC: Uh... your Honor, the... is... uh... we understand the term animus. It is a Constitutional term of art that has nothing to do with how good or bad you are as a hu-

JUDGE KELLY: Sure it does. Sure it does. If... if... if... if a legislative body does something deliberately to hurt somebody, thats one thing. If they do something thats to the good of the whole in their opinion, not to hurt anybody, its another thing. As published, we cant just ignore what the legislature has done... so... we dont like that, so your... your animus is bad. That-

TOMSIC: Your Honor-

JUDGE LUCERO: Has public policy ever been allowed to overrule Constitutional rights in this country?

TOMSIC: No, your Honor-

JUDGE LUCERO: Could we take a poll as to whether the... whether free speech is... applies in the State of Colorado, for example?

TOMSIC: Absolutely not, your Honor.

JUDGE LUCERO: And, could we declare, as a matter of public policy and I think thats what Windsor was speaking to when... when... when it said that... that it violates the... the Fifth Amendment and through the Fifth... Fourteenth Amendment, speaking to the States, it... it... it is violative of public policy. Wh... The problem I have, with all of these arguments, is that these arguments were made in Windsor, they were considered in Windsor. And... and, Justice Scalia... Justice Alito has spoken very eloquently about what the law is NOT, in their dissents. But we have to look at the majority opinion in Windsor, and with all due respect, it seems to me that to argue that public policy can trump a declared Constitutional right uh... it would be a REMARKABLE Constitutional proposition. Not just in Utah or in Colorado, but ANYWHERE in the Untied States.

TOMSIC: Uh... your Honor, it would not only be remarkable, it would be contrary to... at least two, if not more, Supreme Court decisions including Cleburne, where the Supreme Court has expressly held that an individuals Constitutional rights are not subject to public vote or legislative action.

JUDGE HOLMES: True, but what were... what were trying to endeavor to determine, is what is the Constitutional right, and what right has been violated, so I dont think that really answers the question. Before you sit down, I need to raise the ugly head of Article III jurisdiction. And I compare, juxtaposed this case to Bishop. And in Bishop, in a non panel decision, we held, that there was NOT Article III jurisdiction because they only sued the Attorney General and the Governor. And in tho... that... in that situation, those two individuals could not affect causation for purposes of Article III jurisdiction. WHY is that case any different than this one, in which, yes, you sued the Clerk of Court below, but the Clerk of Court is NOT on appeal number one, and number

two, it... it would seem to me that that creates a fundamental basis of concern about where the jurisdiction lies in this case.

TOMSIC: Your Honor, let me answer this a little broader than Mr. Schaerr answered that. It is not just the general power of the Governor and the Attorney General with regard to these matters.

JUDGE HOLMES: Thats all thats in your complaint.

TOMSIC: It is what is in our complaint, your Honor. But, let me just say one other thing what is also in this record, is... because it is... was in the Motion to Stay that was before your... before this Court is the State has taken the position that it can in fact, and it does direct what the County Clerks do prohibiting them from granting marriage licenses and allowing them to grant licenses. So it is not simply a question of what general authority do these individuals have. It is the fact within carrying out those general authorities they, in fact, exercise that authority within the very realm of the issues which are before your Court, which is, does it violate the equal protection clause, and does it violate due process. And, if, in fact, it does, and the Attorney General and Governor, as they did in this case, basically allowed the County Clerks not to issue marriage licenses and take the position they were waiting for the Tenth Circuit, its not just simply a general authority-

JUDGE HOLMES: Well... Well, thats a... thats a... thats a... thats a reasonable response. What I... What I want to understand, then, on that front is, would it be your position and Im going to dig into this later, but would it be your position then that Utah law then would authorize the Governor and the Attorney General to essentially control the action of the County Clerks such that this situation would

NOT be in some ways like Bishop, where, essentially, they had general authority, and that was it?

TOMSIC: That is exactly our position, which gives this Court jurisdiction under Article III. I want to just end, if I could, your Honors, and ask that you affirm the district courts opi... pinion striking down these discriminatory laws that have no basis under any level of scrutiny, for these laws are not the type of laws that our Constitution will permit, because as the Court has said before, the Constitution does not allow classes between its citizens. I thank you for your time.

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JUDGE KELLY: Counsel, you have a little bit of time left. [JUDGES WHISPER SOMETHING ABOUT two minutes] JUDGE KELLY: And well give you an extra two minutes.

SCHAERR: Thank you, your Honor. Uh... very briefly, I... I identified a couple of questions from members of the panel. Uh... first of all, Judge Holmes, I realize I did not finish my answer to you on your question about uh... sex discrimination. Uh... The problem in Loving was that there was an intention on the part of the legislature to disadvantage uh... one class of people one race of people versus white people. And similarly, in the sex discrimination context, where there is no facial discrimination, which is true here, on the basis of sex, uh... you have to establish an intention to advantage one sex at the expense of the other, and there is no suggestion here that the man-woman definition of marriage is designed to advantage males over females, or vice versa. Um... Judge Lucero, to your questions about... about Windsor, and this could be a much longer conversation, um... but, in... in fact, the... the Plaintiffs interpretation of Windsor, which

has been picked up by all of the federal district courts to address this issue since Windsor I agree with you on that but theyre not reading the opinion. Uh... They... theyre... their reading of the opinion does not account for, number one, the fact that... that in the end... end of the opinion, it says, this opinion, as well as the conclusion, are limited to those couples thatve been legally married under State law! The C... Court expressly limited its opinion to those. Uh... Secondly, the Court says, in several places, that... that-

JUDGE LUCERO: But that... But on that point and I hate to cut into your time... I... [stammers] give you more time but-

SCHAERR: Ill take it. [AUDIBLE LAUGHTER IN THE COURTROOM] JUDGE LUCERO: -on that point, th... there is a case for... th... there are Plaintiffs here from Iowa who are validly married in Iowa. But they come to Utah, and they can never, forever, be married. That... the... The doors been locked, the keys been thrown away, and its... then its been destroyed... uh... by whoever found it. I mean... it... that seems to be more like Dred Scott, where... where a citizenship... even when you obtain citizenship - in the Wisconsin territories or wherever - and then Dred Scott comes back and he says, now I am entitled to the cloak of protection of the United States Constitution, and uh... Missouri says, NO. Because, under Missouri policy, we will NEVER allow you that. It sounds to me identical to this situation.

SCHAERR: Heres why its different, your Honor. Congress expressly dealt with THAT very problem in Section 2 of DOMA, which governs the effect of a same sex marriage in one State in other States. And Congress, exercising its... its authority under the Full Faith and Credit Clause, said, that that marriage in Oklahoma is... does not have to be

recognized in Utah. And... and that provision of DOMA was not challenged in this case. Uh... if... if that provision had been challenged, then... then... this could be a different case as to the people who were married in Oklahoma, but it wasnt challenged. But to go back to Windsor, theres so many other aspects of Windsor that are simply... uh... left on the... on the cutting room floor in the opinions thatve been written by these various district courts. Uh... The... The Court, in Windsor, as weve discussed before, repeatedly said that marriage - and especially the definition of marriage and the Court drew a distinction between the definition... definitional authority and regulatory authority the Court said the definition of marriage is virtually the exclusive province of the State, and then, at the end of the... the Windsor opinion, the Court talks about, again, the importance of the States as mechanisms for developing community consensus about important social issues. Well, if thats true, um... then... er... essentially what... what the other side says is that, yes, the federal Government, the... the... Court in Windsor was telling the federal Government, you need to butt out of... interfering with the... the States definitional authority over marriage. But they assume that by the same... at the same time, with a wink and a nod, the Court was telling federal courts that THEY should interfere with and intrude into the States definitional authority over marriage, and that makes no sense at all!

JUDGE KELLY: Thank you, counsel.

SCHAERR: Thank you. =====================================================================