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.

JUDGE HOLMES: In Turner? How so in Turner?

CAMPBELL: In Turner, the Supreme Court specifically talked about the consummation of the marriage, and it also talked about legitimizing children. But if there were any doubt on that point, whether what the Supreme Court has meant when it’s previously talked about the fundamental right to marry - if there were any doubt that they were referring to the relationship of husband and wife, the Court has twice removed it. First, just five years after Loving was decided, the Supreme Court in Baker, summarily and unanimously, rejected the argument that the fundamental right to marry includes the right to unite two people of the same sex. And more recently, just last year-

JUDGE

LUCERO:

What

do

you

say

to...

the

suggestion...

not

the

suggestion... the direct statement in the trial court opinion in this case that Baker has been implicitly overruled by Windsor?

CAMPBELL: Our... our response to that, as we've indicated in our briefing is that whatever the subsecu“subsequent doctrinal developments” dicta might mean, it cannot mean that a lower Court is free to depart from directly on-point precedent from the Supreme Court.

JUDGE LUCERO: But... but, the case was before the Supreme Court. Questions were asked about it at the Supreme Court. And the majority chose to disregard it, and essentially, overrule it. They didn't say "we overrule it." They... they... the... worse, they just ignored it. Left in the corner. All by itself.

CAMPBELL: Your Honor, are you specifically referencing what the Court did in... in Windsor?

JUDGE LUCERO: Yes.

CAMPBELL: Well, your Honor, it was a... it was a different question. It was-

JUDGE LUCERO: Let me... let me put the question differently. Could the Court have done in Windsor, what it did, if the question... [paraphrasing] if the proposition that Baker did not raise a fundamental federal question, was in fact correct?

CAMPBELL: Absolutely. The Court could still have done what it did in Windsor, and still left Baker intact. Because the questions are different. If... If we look at Windsor, we see many distinguishing characteristics - first and foremost, is the fact that the Court repeatedly... Well, let’s start with the fact that the Court premised its analysis... its careful consideration analysis on its conclusion that the federal Government unusually departed from its history and tradition of deferring to State laws on marriage. So, that raised a unique situation that isn't present here, wasn't present in Baker, and thus is an entirely different case. Returning to-

JUDGE LUCERO: But... well... hold on, one second...

CAMPBELL: Sure.

JUDGE LUCERO: Not so quick. If the Court had done that, and said, this is a federalism issue - the federal Government has no right to intrude into the terrain of the States - that would've ended the case. But the Court didn't do that. The Court went much further, and it said that this was a fundamental Fifth Amendment violation, Fourteenth Amendment violation (theoretically, by virtue of application to the States)... and... that is the very federal question involved in Baker.

CAMPBELL: I w... I would disagree with that, your Honor. The cases are distinguishable in many points - I would also direct the Court to Windsor's statement, right at the end of the decision, where it confined not only its holding, but also its opinion, to the unique situation where the federal Government declined to recognize same sex marriages made lawful by the States. So, again, there is significant differences... Moreover, if Windsor was foreclosing this case, or if Windsor was displacing the Baker decision, much of what the Court said there doesn't make any sense. The Court emphasized the right of States to define marriage for themselves. The Court also mentioned that States may differ in terms of who I'm may marry within their the States. Windsor That Court question... that... that recognition makes no sense if this question is foreclosed. Moreover,... sorry. Moreover, expressly extolled the virtues of allowing the formation of consensus when the people decide the definition of marriage. That's EXACTLY what the people of Oklahoma did.

JUDGE HOLMES: And all of this was qualified by the need to respect the individual Constitutional rights of the people involved, SEE LOVING. So... it seems to me - and the district court here found that significant - I think, in fact, it is significant. Wh... Why doesn't that matter? I mean... the State cannot define marriage in any way it wants and trample Constitutional rights, right?

CAMPBELL: Th... That's correct. The State certainly has limitations on the definition of marriage. But the citation to Loving - the lower court said it was a qualification of significance or something of that sort - I... And we would resist that, your Honor, because Loving is a clearly distinguishable case. Loving is a case that involves racial discrimination, and race is irrelevant for any legitimate purpose of marriage. In contrast, the sex of the spouses is directly relevant to the Government's interest in procreation and child-rearing. I'd like to, if there are no other questions, reserve the remainder of my time for rebuttal. Thank you. =====================================================================

HOLLADAY: May it please the Court: My name is Don Holladay. I represent the Plaintiffs below, also Appellees, and Cross-Appellants here. There are so many things legally wrong with the Oklahoma same sex marriage ban that triggers and fails Constitutional scrutiny on at least four different levels.

JUDGE KELLY: Before we get there, uh, I’m a little concerned about standing in this case, in that you have not challenged any of the statutes uhh... that are on the books in Oklahoma. Uh... And it doesn’t seem that, assuming we agreed, uh... that it would... it would give you any relief, because of that fact.

HOLLADAY: If I can address... Judge Kelly...

JUDGE KELLY: Certainly...

HOLLADAY: When we... When the Constitutional amendment was passed banning same sex marriage in Oklahoma, there were two statutes on the books. That Constitutional amendment constituted a complete scheme over the subject matter of those two statutes. It in effect, subsumed those two statutes, and left them, I’m afraid to use the Latin term functus officio, but... dead on the books, so to speak, because-

JUDGE KELLY: They were not in contradiction to the Constitutional amendment though.

HOLLADAY: Beg your pardon?

JUDGE KELLY: They were NOT contrary to the Constitutional amendment.

HOLLADAY: No, they were identical.

JUDGE KELLY: It’s one thing if... if the Constitutional amendment contradicts the statutes – the Constitutional amendment will control, it will take over the whole area. Do you have any case as to the contrary in that respect?

HOLLADAY: Yes, actually we do, your Honor. We had... We cited, I believe, the Fent case, and we also cited the Hardwick [sic, should be Hendrick] case, both of which stand for the proposition that the time honored rule that has been in Oklahoma for over 100 years, is that when a Constitutional amendment or a new statute replaces, in its entirety, the subject matter of an existing statute, then that statute passes out of existence. This isn’t some type of repeal-by-implication where you’re just simply appending statutes on the books and you have to decide whether it is an amendatory provision that comes later. The latest...

The Constitutional amendment that was passed by the people on November 2, 2004, in its entirety, covered the entire subject matter of the two statutes that were on the books. And so that Constitutional amendment, in the words of the Oklahoma cases that I’ve cited, became a complete scheme that took out whatever subject matter was left in those two statutes. [pause] Then the other standing issue that is before the Court is the one that this... a panel of this Court decided on June 5, 2009 in this same case, where that panel of the Tenth Circuit raised sua sponte, the question of whether or not we have sued the appropriate Defendants, both of whom were members of the executive branch – the Governor and the Attorney General. And this Court... this panel of the Tenth Circuit found, and correctly so, that we had not sued the proper person, because the recording, the licenses – the licensing itself, and the recognition of marriage licenses falls under the umbrella of the Judicial branch of the Government, and not the Executive branch.

JUDGE LUCERO: How so recognition?

HOLLADAY: [big sigh] Well, I can... There’s two or three examples I can give to you, but the Judicial branch, and by that I mean ultimate recognition, recognizes marriage licenses – the issue may have to do with divorce, it may have to do with child custody, it may have to do with an inheritance matter, it may have to do with bigamy. The Judicial branch of the State of Oklahoma is one to make the ultimate determination as to whether or not to recognize that marriage license for any of those purposes.

JUDGE KELLY: We don’t have those cases here, though.

HOLLADAY: Beg your pardon?

JUDGE KELLY: You have any of those situations before us?

HOLLADAY: No, we don’t. What you have before you, your Honor, is on June 5, 2009, you had the question of whether or not there was, for Article III justiciability purposes, whether or not there was “some connection” between this two Defendants that we had sued – the Governor and the Attorney General – and the claims of non-recognition that were in the complaint. And this Court correctly ruled, that the Executive branch does not have - at least with respect to the recording, and the licensing, and the recognition - the ultimate responsibility over that function. We need somebody who, in an official capacity, has more of a connection.

JUDGE KELLY: Well, I understand that. But... we don’t have any of those situations that you’re talking about. And... when a person moves into Oklahoma, they don’t have to go down and register their marriage, do they?

HOLLADAY: I’m sorry, your Honor... one... I missed that last part.

JUDGE KELLY: When a person moves into Oklahoma, there is no provision for them to go down to the courthouse, or to the County Clerk, or whomever... and register their marriage... If they are married in New York, or New Mexico, or wherever.

HOLLADAY: No, I would agree with that. But certainly the... certainly...

JUDGE KELLY: Well, in the event you have a situation like that, then you’d have something that was... that we could get a handle on. Can we just say, well, it might happen in the future?

HOLLADAY: Oh, I don’t think so, your Honor. If a person moves in to Oklahoma, and let’s say, wants to get married to someone-

JUDGE KELLY: That’s diff-

HOLLADAY: -then the Court Clerk-

JUDGE KELLY: Right.

HOLLADAY: -as part of her statutory or his statutory duties, by statute, is going to have to make sure that those applicants are qualified to marry. And one thing that they have to do-

JUDGE KELLY: No, we’re... I think we’re together on THAT. But what about the non-recognition of out-of-state...

HOLLADAY: Well... Well, that-

JUDGE KELLY: -situations...

JUDGE HOLMES: And what about the affidavit-

HOLLADAY: Respectfully, I understand- beg your pardon?

JUDGE HOLMES: What about the affidavit here?

HOLLADAY: Let me... Let me answer both of those questions by finishing the sentence that the Court Clerk has to determine that the parties getting married are qualified. And we have another statute that says, you cannot have two marriages at one time. So, every time a Court Clerk is looking at the qualifications of applicants, they must first determine whether or not there is another marriage in existence. Now with respect to the affidavit, Judge Holmes, I think the short answer to that is that the affidavit was... uh... under-inclusive and too narrow for two reasons – it did not take into account the judicial reasoning that it happened with respect to the June 5, 2009 decision which said, this person IS the official... is official judicial personnel, acts as an arm of the Court, in effect a representative of the Court, in effect an agent of the Court, and, having that type of connection makes the district court Clerk, a more suitable connected Defendant than the ones that you have. The affidavit, on the other hand, simply said, I have no official duties to recognize licenses, whether from out-of-state or in-state. Well, of course, the Clerk does! She has to determine, by asking the applicant, do you have another license, and if so, has to do something about that. Can you imagine what’s going to happen if the district courts affirms... if this Court affirms the district court’s ruling that the licensing provision is invalid? You’re going to have hundreds and hundreds and hundreds of applicants that’ve been married in California, that’ve been married in New Mexico, going to be lining up at the Court Clerk’s offices in Oklahoma saying, we want to be remarried. And the first thing that Clerk is going to have to do is to decide whether or not those California licenses are valid or invalid, whether those New Mexico licenses are valid or invalid.

JUDGE HOLMES: You lost me at the connectedness. I... I was with you there... until you got to that point-

HOLLADAY: Okay.

JUDGE HOLMES: -why... why would they have to do that? I mean, these Plaintiffs here didn’t have to go to the Clerk... Court Clerk and say, you know I’m married in California, would you recognize me and give me an Oklahoma marriage? They’re either married or they aren’t, right?

HOLLADAY: Well, if you have a marriage license that you have obtained, and now you want to have the Court Clerk issue you a marriage license, yes, that Court Clerk is going to have to determine whether that first one is valid or not-

JUDGE HOLMES: Yes, but the factual predicate is, why would you have to do that? I mean, if you’re married in California and you’re living in Oklahoma, if we were to affirm that the... the district court as it relates to the ban provision, then there is no reason to ever go in, is there? And there is no reason to go in, period! I mean, you... you’re either married or you’re not! I mean, and... and... at least as it relates to the Court Clerk, I can see her factual scenario where somebody comes and says, I really want to be an Oklahoma... I want an Oklahoma marriage. And then the Court Clerk has to decide whether their marriage is valid. But if they don’t do that...

HOLLADAY: Well... [sigh]... And I... I understand your position for sure, Judge Holmes. I would say that if the California couple has a valid license, excuse me, a valid marriage, and moves to Oklahoma, the first thing that Court Clerk is going to have to decide is whether or not that same sex marriage in Oklahoma.

JUDGE KELLY: Why would the Court Clerk ever even have to decide anything? Why would it even come before the Court Clerk?

HOLLADAY: [stumbles]

JUDGE KELLY: Well, I see there is a situation where it MIGHT, but you don’t have that situation here. HOLLADAY: Well, it will come before the Court Clerk, or in litigation it will come before the Judicial branch-

JUDGE KELLY: It MIGHT. I mean... that’s all out in the future, down the road, maybe it will, maybe it won’t.

HOLLADAY: This Court explicitly, really, instructed us to sue the Court Clerk as a more appropriate party, and really, the only other party that would have ever been appropriate would have been the Court itself.

JUDGE LUCERO: I think the OJ did a little more than that, actually. The OJ said that the determination of marriage – and actually used the word ‘recognition’ – was a judicial function, not an executive function. And I take it that Oklahoma is structured constitutionally like all the other states, that is to say that the Governor, the Attorney General, all the executive officers were therefore under the law... in the case... the executive officers immune from suit. Really, the OJ left no other relief than the suit against the judicial officers, and that what in fact happened.

HOLLADAY: I... I think you have stated that uh... correctly, Judge Lucero.

JUDGE HOLMES: So, in that situation, would the Court Clerk be the face, essentially, of the judiciary for purposes of this matter?

HOLLADAY: We think so, Judge Holmes. It... You’re left with... of course... this Court... this panel of the Tenth Circuit determination that the Court Clerk was the more appropriate Defendant. The unsaid part was, under this panel’s analysis was, the only other Defendant would have been the Court itself. And there is-

JUDGE LUCERO: The action is a declaratory judgment action, is it not? The action for injunctive relief combined-

HOLLADAY: It’s an action for declaratory relief, Judge Lucero, as well as well as to enjoin – and in fact, the injunction has been entered with respect to the licensing provision, but then suspended, and... on appeal here. And the other issue that’s connected with this in some way, Judge Kelly, but, in another way separately, is the severability issue that is going alo... side by side with the standing issue, because of the ulterior posture that this case came to... to this Court. At the... at the conclusion of the district court’s action below, it found the licensing provision of the ban to be unconstitutional. But then, in reliance of the affidavit that Judge Holmes referred to, it decided that there was no standing to address the non-recognition portion of this unitary ban which has one effect – banning all same sex... in marriage... in Oklahoma. The district c... A severability analysis is required under State law to be made once a part of a pr... of a statute is cut out as unconstitutional. You... At that point in time... as a matter of State law, the federal court has to see what the effect of cutting that portion out-

JUDGE HOLMES: And... And isn’t part of that test, an enquiry into whether the enactor would have wanted that other provision to stand – whether it would have effectuated a purpose that that enactor wanted. And if that’s the case, it would seem to me that there would be at least a reasonable argument that 70% of the Oklahoma electorate would have wanted that non-recognition provision to stand irrespective of what happens to the ban. And is there any basis to... to believe otherwise?

HOLLADAY: Oh, I would have to respectfully disagree, Judge Holmes-

JUDGE HOLMES: And where is the foundation for your disagreement?

HOLLADAY:

Uh... You can’t... If... If the licensing provision is

upheld... is deemed constitutionally infirm, you can’t be giving out licenses at the front door and saying at the back door, no, we aren’t going to recognize those licenses.

JUDGE KELLY: But who’s doing that?

HOLLADAY: Well-

JUDGE

KELLY:

Who

is

standing

at

the

back

door,

not

recognizing

something?

HOLLADAY: Well, I was trying to make-

JUDGE KELLY: -no obligations to recognize or not recognize-

HOLLADAY: I was trying to make the analogy to Judge Holmes’s question that on severability, you know... if the severability analysis comes out that this is a uniform statute... unitary statute, mutually [indiscernible], then the second one falls with the first. Of course, you don’t reach standing law of the case with the constitutionality of the non-recognition provision. They all collapse. Because, the first one was intricately tied to the second one. My time is up?

JUDGE KELLY: Thank you very much. We appreciate your argument. =====================================================================

CAMPBELL: [big sigh] Just to... start where... the questioning was... uh... was focusing, and that is on the... this idea of standing and severability. Specifically, on those points, I would emphasize that the prior panel of this Court, all of the case laws that it cited from Oklahoma, it only focused on the issuance of marriage licenses in state, and the processing of those licenses. There is NO authority anywhere in Oklahoma law to support the idea that my client, Mrs. Smith, recognizes out-of-state marriages.

JUDGE LUCERO: Counsel, let me ask you this. Because it is [stumbles] ... concerning me about these Plaintiffs. These Plaintiffs could never come to the court to sue the Governor or the Attorney General because that’s, for better or for worse, we don’t re-litigate, and that’s decided. And, if we agree with you that they can’t see... sue the Clerk, then... then you’re in a situation where they can’t sue anybody. Uh... Why don’t we then give in to “capable of repetition, yet evading review,” for these particular Plaintiffs?

CAMPBELL: I would disagree with the fact that they can’t sue anyone. They certainly-

JUDGE LUCERO: Who... Who’d they sue?

CAMPBELL: In fact, we’ve suggested, in our briefing that it depends first and foremost on the purpose for which they seek the recognition. But, we would... we could surmise that they seek recognition of their out-of-state marriage license maybe for tax purposes, in which case they would sue the State official that’s in charge of that process.

JUDGE LUCERO: In Oklahoma, wouldn’t that be the Governor and the... Isn’t the Department of Revenue of Oklahoma under the control of the Governor? Isn’t it an appointment at will?

CAMPBELL: Probably, but one of the things that the prior panel said, is that the mere supervisory control isn’t enough, so you have to sue the precise official who can give you that authority, and that is the official in charge of taxes and... and things of that nature.

JUDGE HOLMES: Well then, we’re still stuck with the “law of the case” issue, and trying to understand why it wouldn’t be the law of the case that in fact, the Court or the Clerk would be the face of the Oklahoma judiciary for purposes of this matter, and you say you relied, I think, on part of the case called Baca, and I’m not going to try and fish through your... in terms of... talking about the notion that jurisdiction... was sort of... look aside the law of the case if there is a jurisdictional matter. Well, is it a distinction with a difference that in that case, the ruling that sought to be given effect was a district court ruling, whereas the ruling in this case that is at play for a law of the case is OURS? In other words, WE’VE said, that’s who you should sue, and therefore, shouldn’t THAT govern over whether some district court did that?

CAMPBELL:

We...

we

think

that

that

is

a

distinction

without

a

difference-

JUDGE HOLMES: Okay...

CAMPBELL: In addition, we’ve cited a Third Circuit case and it’s cited right next to it in the brief – I don’t know the name of it offhand – that also stands for the proposition that the law of the case doctrine does not absolve this Court from its obligation to satisfy itself of Article III jurisdiction. But-

JUDGE HOLMES: Well, that’s... I mean... that’s a general proposition. That doesn’t address the specific point... and... and the reason I focus on Baca was, it’s OURS, right? And so, that... so I was trying to see whether there’s some binding precedent out of that that we have to adhere to.

CAMPBELL: Well, to address that point, it is - the question underlying this issue of whether the recognition claim was properly brought against Mrs. Smith – it is an Article III jurisdiction, because, it rests on causation and redressability. If Mrs. Smith was not the proper party to sue, then she has no ability to redress the alleged injuries in this case.

JUDGE HOLMES: I don’t want to keep on eating up your time, but wouldn’t it be... I mean, but if we had made an Article III determination previously, wouldn’t that resolve the issue? I mean, if it’s perceived that we said, sue that person, and that’s the proper Defendant, isn’t

that implicitly an Article III determination that there would be jurisdiction for such a suit?

CAMPBELL: But this Court must reassess its Article III jurisdiction in this case, and specifically, the... the language-

JUDGE KELLY: Don’t we need concrete... don’t [indiscernible] “concrete problem”?

CAMPBELL: A concrete problem in order to have standing, your Honor?

JUDGE KELLY: Yes.

CAMPBELL: A... Absolutely. In this Court, that is certainly an element and an aspect of standing, and in THIS case, by not suing the proper Defendant, we’re lacking that concrete problem-

JUDGE KELLY: But there is no... Even if we sued the proper Defendant – I don’t know who that would be, because it’s a... - there is no issue with respect to non-recognition anyway.

CAMPBELL: Well, I-

JUDGE KELLY: Maybe I’m missing something, but, it seems to me that when the panel... our previous panel... they were not looking at every single potential that might come down the road. They were confined to the facts of... of that case. And... there was no particular issue on nonrecognition then either.

CAMPBELL: I... I think that one thing that... that the question is getting to is the fact that the Plaintiffs seeking recognition of their out-of-state marriage licenses never approached Mrs. Smith and sought recognition.

JUDGE KELLY: They never approached anybody! CAMPBELL: That... that’s correct.

JUDGE KELLY: Alright, thank you.

JUDGE LUCERO: May I ask a question?

JUDGE KELLY: Sure.

JUDGE LUCERO: I think we decided before that we could ask a little... few more questions if we... had the time. You may know from the last hearing that... the questions I asked of Utah if you’ve heard that tape. I’m concerned about the children of... of gay par- gay married couples whose marriage has been recognized in a sister State. With respect to those children, what will be their legi- relationship in Oklahoma under this amendment? Are those recognized as legitimate children or not?

CAMPBELL: If one of the parents adopts that child, they will be recognized as having a parent-child relationship. That’s correct.

JUDGE LUCERO: But what if they both adopt?

CAMPBELL: Under Oklahoma law, they cannot both adopt the child-

JUDGE LUCERO: But that... that... that’s... that’s clearly... I mean, you’ve got the case of... [stammers] I hesitate because I do not know the exact pronunciations... Heather-Finston? [sic] In that case, doesn’t that case involve the adoption of an out-of-state adoptee by the... by two women? CAMPBELL: It does, your Honor, and... Let me address that case. That case is different from what we’re dealing with here. That case was brought under the full faith and credit clause, and it involves the recognition of an out-of-state adoption. This case – there are no adoptions at issue, so yeah – in the State of Oklahoma, if a same sex couple comes from another State with a... an adoption judgment, then that must be recognized in the State of Oklahoma.

JUDGE LUCERO: So doesn’t that undermine all of your arguments about... the fact that children should be raised by a mother and a father... and they shouldn’t... ideally, they shouldn’t be adopted... ideally, they shouldn’t be... have any other kind of relationships? I understand your argument, but you’re saying, that’s not so, because any couple can go out of State, adopt a child as long as it is consistent with the laws of the out-of-state adoption authority, and bring them to Cali- bring them to Oklahoma from California for instance, and have that marriage recognized in Oklahoma.

CAMPBELL: Your Honor, there is no contradiction between that and the policies that the marriage laws of the State of Oklahoma are seeking to further, and let me explain why. Because, adoption and marriage are different laws with different policies. The purpose of marriage in Oklahoma committed is to channel in naturally to procreative stability relationships to the into of unions order provide types

relationships that are capable of producing unintended children and are capable of providing children with full biological parents-

JUDGE LUCERO: Well, we say we agree with you a hundred percent that in an ideal world, that’s wonderful. But, why would a gay marriage... a gay couple electing to marry and having a stable relationship, and adopting a child, or otherwise participating in the creation of a child – why... how would that affect this policy of the... that you’re otherwise defining?

CAMPBELL: First and foremost, it’s just a different interest – it’s not the interest that the State of Oklahoma has in marriage, as I just explained what THAT interest is. That interest isn’t implicated by the same sex couple, or the same sex couple adopting or raising a child. That is a separate interest. The State of Oklahoma has preserved marri-

JUDGE LUCERO: That’s right. What I’m asking you is, why is THAT interest - the gay couple interest - in ANY way, going to affect the heterosexual couples that want to get married? I mean... I don’t... I don’t understand the nexus – the connection – you’re making, that if gay marriage is allowed, that somehow, that’s going to be a poison pill to marriage by heterosexual couples. I don’t understand.

CAMPBELL: Well, your Honor, we’ve explained that argument in-

JUDGE LUCERO: I... I’ve... I’ve read your briefs – every word – I understood the words, I didn’t understand what they were saying. [AUDIBLE LAUGHTER IN THE COURTROOM] CAMPBELL: Fair enough. Well, let me try to explain it again.

JUDGE LUCERO: Right.

CAMPBELL: First, let me... let me start by saying, no one knows for sure what the long term effects of redefining marriage will be. BUT, people on both sides of the marriage debate acknowledge that it WILL have real world consequences. And it’s Plaintiffs’ burden to show that there is no risk that any of those consequences will be adverse. So they have the burden, and they haven’t satisfied-

JUDGE

LUCERO:

Adverse

to

WHAT?

I

mean...

Because,

one

of

those

consequences can be, if the sociological studies that we’ve read are correct, and that children are best brought up in a stable marriage relationship, one of the consequences could be, you may find an explosion of adoption, and children in... who become children of gay couples. How does that affect the... quotient A, the heterosexual couples who are also getting married and having children, hopefully not getting divorced, and hopefully not becoming dysfunctional and, you know, all the things that happen in society – why does B affect A?

CAMPBELL: Let me... point the Court to two specific amicus briefs that I think address this issue very well. The first is the amicus brief filed by Professor Robert George and his co-amici – I think they do a good job of laying out this issue. The second one is the amicus brief filed by Professor Alan Hawkins and his co-amici. In addition-

JUDGE HOLMES: The American Sociological Association had a different take on both of those, right? In terms of its amicus brief took the position that this no-difference was, in fact, the rule, and there was no foundation for the belief that... that there would be a different outcome, or... or an inferior outcome by virtue of STABLE gay relationships – in other words, they emphasized that the two key

components in determining good outcomes for children were stability and family resources – parental resources. And both of those have nothing to do with gender, correct?

CAMPBELL: That... that is the position of that professional association. But it is not without dispute.

JUDGE HOLMES: And I... No, I don’t deny that. And... and to that point... the... the... premise of the decision about the burden turns on whether we are under rational basis review or not, right? I mean, it’s your burden, if we’re not.

CAMPBELL: That... that is correct, with one caveat, your Honor. I would point out that even if we’re under a heightened form of scrutiny, that the burden would not be on the Government to show the potential of harm from redefining marriage. And, I would specifically point this Court to two cases that I think bear on that issue. The first one is Nguyen versus INS, a Supreme Court decision that we cited in our brief, and the second one is Michael M versus Superior Court of Sonoma County. In both of those cases, the Court applied heightened scrutiny. And in both of those cases, the... the law issued through a biological distinction. The Court upheld both of those biological distinctions even under heightened scrutiny, because the Court found that the two classes at issue weren’t similarly situated, and the critical point is that in both of the cases, the Supreme Court did NOT require the Government to show that changing the line at issue would adversely affect the Government’s interests. So, I would... I would recommend the Court review those cases, because I believe they support the proposition that even under heightened scrutiny, the Government doesn’t need to show harm. harm. Now having said that, we believe that... that... we have introduced sufficient evidence and our amici have amply explained the

JUDGE HOLMES: Thank you.

CAMPBELL: Thank you, your Honors. =====================================================================