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Unofficial Transcript of Oral Argument in Bishop v. Smith before the Tenth Circuit Court of Appeals

Unofficial Transcript of Oral Argument in Bishop v. Smith before the Tenth Circuit Court of Appeals

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Unofficial Transcript of Oral Argument in Bishop v. Smith before the Tenth Circuit Court of Appeals on April 17, 2014
Unofficial Transcript of Oral Argument in Bishop v. Smith before the Tenth Circuit Court of Appeals on April 17, 2014

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Published by: ragad3199 on Apr 18, 2014
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04/23/2014

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 14-5003 & 14-5006 Bishop v. Smith U.S. Court of Appeals for the Tenth Circuit Oral Argument – April 17, 2014
[Transcript Created From Official Audio by Ragavendran G.]
CAMPBELL:
 Good afternoon. May it please the Court: James Campbell on behalf of the Defendant Sally Howe Smith. From Oklahoma's inception, marriage has been a man-woman union. Plaintiffs' efforts to change that are subject to deferential rational basis review, because their arguments seeking to invoke heightened scrutiny have failed. To begin with, the marriage amendment does not impermissibly discriminate on the basis of sex. Even though this argument has been raised, repeatedly, in the many same sex marriage cases that have been litigated around the country, no appellate court, state or federal, with the exception of a 2-justice plurality in Hawaii's Baehr versus Lewin decision has ever credited the sex discrimination claims that the Plaintiffs press here. Specifically, a law does not impermissibly discriminate on the basis of sex, unless it treats men in the class more favorably than women in the class, or, vice versa. Here, the marriage amendment treats the sexes equally-
JUDGE HOLMES:
 Well why... why would that be the case? I mean, in Loving, although the line was race, the State raised an equal application argument, and the Supreme Court went on to find that there was an equal protection violation. And the line that's being drawn here, arguably, is the line that is entirely predicated on sex. On gender. And so why would it NOT be the case that there would be an intermediate scrutiny as it relates to that?
 
 CAMPBELL:
 Your Honor, Loving, to be sure, observed, as you just acknowledged, the fact that equal application does not immute- immunize a law from strict scrutiny. But, and this is the critical point, the Supreme Court has never extended that principle to sex discrimination claims. In fact, in VMI, the Supreme Court was explicitly clear that it has always treated race and sex discrimination differently. In fact, in that case, the Court said, race discrimination... I'm sorry... gender discrimination exists when the Government closes a door, or denies to men or women an opportunity. And that simply isn't the case here, because the marriage law treats men and women the same. It's not as if the State, for example, said that men can marry other men, but women couldn't marry other women. THAT would be sex discrimination. What's at issue here is an equal treatment of the sexes, and thus, this case does not involve impermissible sex discrimination. Furthermore, the Supreme Court, in the Cleburne decision, provides another explanation for why rational basis is the proper standard here. In Cleburne, the Court said that rational basis review applies whenever the group at issue has distinguishing characteristics relevant to interests the State has authority to implement. Here, the natural procreative potential of opposite-sex couples distinguishes that group from same sex couples. And THAT difference is relevant to the procreative and child-rearing interests in marriage that the State has authority to implement. So for that reason, under the Supreme Court's guidance in Cleburne, the rational basis standard applies. And I... I would add to that that that is the precise analysis that the Eighth Circuit in the Bruning case, and New York's High Court in the Hernandez case, used in deciding that equal protection challenges to man-woman marriage laws are subject to rational basis review. [pause] Regarding Plaintiffs' fundamental rights argument, the Court must start, as Glucksberg instructs, with a careful description of the asserted liberty interests.
 
JUDGE HOLMES:
 And why are we at Glucksberg, to begin with, when we have the argument that this is a fundamental right to marriage, therefore there is no need to go into the Glucksberg analysis at all?
CAMPBELL:
 Your Honor, the Glucksberg analysis applies in ALL fundamental rights claims.
JUDGE HOLMES:
 Well, there is a fundamental right to marriage, and so, when... what... what more needs to be described? We have that.
CAMPBELL:
 The Glucksberg analysis cannot be discarded simply because the litigant comes to the Court and says that they are claiming a... an already established right. The Court still has to carefully describe the right at issue in order to ensure that the litigant isn't trying to refashion a new right in the garb of an old right. So, the Glucksberg careful description analysis MUST apply in ALL fundamental rights claims, not just where somebody is admittedly claiming a new fundamental right, but also in instances where they are trying to fit their claims into an already established fundamental right.
JUDGE HOLMES:
 Well, let's assume that's so, then why don't you explain why this isn't... why this doesn't fit into the existing pattern of marriage?
CAMPBELL:
 Sure. Umm... The established fundamental right to marry is the right to enter the relationship of husband and wife. And the Supreme Court's past decisions in Loving, Zablocki, and Turner - all those cases involved marriages between a man and a woman AND, in all of those opinions, the Court expressly reflected marriage’s abiding connection with procreation and child-rearing.

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