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1 2 3 4 5 6 7 8 9 10 PLAINTIFFS, 11 VS. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 GARY R.

HERBERT, IN HIS OFFICIAL CAPACITY AS GOVERNOR OF UTAH; JOHN SWALLOW, IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL OF UTAH; AND SHERRIE SWENSEN, IN HER OFFICIAL CAPACITY AS CLERK OF SALT LAKE COUNTY, DEFENDANTS.

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH CENTRAL DIVISION ______________________________________________________________ DEREK KITCHEN, INDIVIDUALLY; MOUDI SBEITY, INDIVIDUALLY; KAREN ARCHER, INDIVIDUALLY; KATE CALL, INDIVIDUALLY; LAURIE WOOD, INDIVIDUALLY; AND KODY PARTRIDGE, INDIVIDUALLY.

CASE NO. 2:13-CV-217

SALT LAKE CITY, UTAH DECEMBER 4, 2013

______________________________________________________________ MOTIONS FOR SUMMARY JUDGMENT BEFORE THE HONORABLE ROBERT J. SHELBY UNITED STATES DISTRICT COURT JUDGE

1 2 3 4 5 6 7 FOR THE PLAINTIFFS: 8 9 10 11 12 13 14 15 16 17 18 19 20 21 COURT REPORTER: 22 23 24 25 RAYMOND P. FENLON 350 SOUTH MAIN STREET, #242 SALT LAKE CITY, UTAH 84101 (801) 809-4634 FOR DEFENDANT SWENSEN: SALT LAKE COUNTY DISTRICT ATTORNEY BY: RALPH E. CHAMNESS, ESQ. DARCY M. GODDARD, ESQ. 2001 SOUTH STATE STREET, ROOM S3700 SALT LAKE CITY, UTAH 84190 (385) 468-7700 MAGLEBY & GREENWOOD BY: JAMES E. MAGLEBY, ESQ. JENNIFER F. PARRISH, ESQ. PEGGY A. TOMSIC, ESQ. 170 SOUTH MAIN STREET, SUITE 850 SALT LAKE CITY, UTAH 84101 (801) 359-9000 FOR DEFENDANTS HERBERT AND SWALLOW: OFFICE OF THE UTAH ATTORNEY GENERAL BY: PHILIP S. LOTT, ESQ. STANFORD E. PURSER, ESQ. 160 EAST 300 SOUTH, SIXTH FLOOR P.O. BOX 140856 SALT LAKE CITY, UTAH 84114 (801) 366-0100 APPEARANCES:

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT:

P-R-O-C-E-E-D-I-N-G-S (10:14 A.M.) GOOD MORNING EVERYONE. MY APOLOGIES FOR

KEEPING ALL OF YOU FOR A FEW MOMENTS.

LET ME JUST SAY AT THE

OUTSET THAT WE'VE JUST LEARNED WITHIN THE LAST HOUR OR SO THAT WE'VE HAD A SIGNIFICANT AND TRAGIC LOSS IN THE COURT COMMUNITY THIS MORNING. ONE OF OUR DEAREST FRIENDS AND MOST RESPECTED

COLLEAGUES WAS FOUND DEAD THIS MORNING, AND THE COURT AND THE STAFF AND EVERYONE IS THINKING ABOUT HIM AND HIS FAMILY. OF COURSE WE HAVE IMPORTANT WORK TO DO TODAY AS WELL, AND SO WE'RE HERE AND WE'RE EXCITED TO SEE ALL OF YOU. ON THE RECORD NOW IN CASE NUMBER 2:13-CV-217. KITCHEN, ET AL. VERSUS HERBERT, ET AL. COUNSEL, WHY DON'T YOU TAKE A MOMENT, IF YOU WOULD, PLEASE, AND MAKE YOUR APPEARANCES. MR. MAGLEBY: YOUR HONOR, PEGGY TOMSIC, JAMES AND I WE'LL GO

THIS IS

MAGLEBY AND JENNIFER FRASER PARRISH FOR THE PLAINTIFFS.

WOULD JUST LIKE THE RECORD TO REFLECT THAT OUR PLAINTIFFS ARE ALL HERE WITH THE EXCEPTION OF KAREN ARCHER, WHO WAS TOO ILL TO MAKE THE TRIP, AND I WOULD ASK THE COURT TO EXCUSE HER PRESENCE. THE COURT: ALL OF YOU. MR. LOTT: GOOD MORNING, YOUR HONOR, PHIL LOTT, STAN OF COURSE. THANK YOU. GOOD MORNING TO

PURSER AND SHAWN ALLEN, A PARALEGAL FROM OUR OFFICE, ON BEHALF

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OF THE STATE DEFENDANTS. THE COURT: MR. PURSER: THANK YOU. YOUR HONOR, DARCY GODDARD AND RALPH

CHAMNESS FROM THE DISTRICT ATTORNEY'S OFFICE REPRESENTING CO-DEFENDANT SALT LAKE COUNTY. THE COURT: GOOD MORNING TO ALL OF YOU. THIS IS THE

TIME SET FOR HEARING ON CROSS-MOTIONS FOR SUMMARY JUDGMENT. WE'VE HEARD FROM BOTH OF YOU. WE'VE RECEIVED AMPLE BRIEFING,

AND IT WAS VERY HELPFUL BRIEFING, SO WE APPRECIATE THE HARD WORK THAT ALL OF YOU HAVE ALREADY PUT INTO THIS. THE UPSIDE TO THAT IS I'M CONFIDENT THAT WE HAVE OUR ARMS SQUARELY AROUND THE ISSUES, CASE LAW AND YOUR ARGUMENTS. BE

HAPPY TO HEAR FROM ALL OF YOU TODAY, OF COURSE, AND ANYTHING YOU HAVE TO SHARE WITH US TO SUPPLEMENT WHAT YOU'VE ALREADY SUBMITTED. I THINK THE PLAINTIFFS HAVE SOME WORK TO DO IN THIS CASE GIVEN THE NATURE OF THE RELIEF THAT YOU'RE SEEKING, SO, MS. TOMSIC, LET ME INVITE YOU TO BEGIN IF YOU WOULD. MS. TOMSIC: THANK YOU, YOUR HONOR. YOUR HONOR,

THIS CASE EMBODIES THE CIVIL RIGHTS MOVEMENT OF OUR TIME. THIS COURT IS NOW BEING CALLED UPON TO FINALLY RECOGNIZE AND PROTECT THE RIGHT OF PLAINTIFFS, SAME-SEX COUPLES, THAT ARE GUARANTEED BY THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION TO EVERY CITIZEN IN THE UNITED STATES, NO MATTER IN WHICH STATE THEY RESIDE, NO MATTER WHAT THEIR SEXUAL

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PREFERENCE. THIS IS THE TIME AND THIS IS THE PLACE FOR THIS COURT TO MAKE CLEAR THAT EVEN IN UTAH THE FOURTEENTH AMENDMENT IS ALIVE AND WELL, NO MATTER HOW POLITICALLY UNPOPULAR OR RELIGIOUSLY UNPOPULAR THAT CONCEPT IS. BECAUSE PLAINTIFFS ARE ENTITLED TO

THE SAME CONSTITUTIONAL PROTECTIONS GIVEN TO ALL U.S. CITIZENS AND UTAH RESIDENTS, AND THEY SHOULD NOT BE DISCRIMINATED AGAINST, STIGMATIZED, TREATED AS SECOND-CLASS CITIZENS, AND DEPRIVED OF THEIR CONSTITUTIONAL RIGHTS JUST BECAUSE THEY DO NOT SHARE THE POLITICAL AND RELIGIOUS MAJORITY'S VIEW OF SAME-SEX COUPLES, AND BECAUSE THEY ARE IN LOVE WITH AND COMMITTED TO SOMEONE OF THE SAME GENDER AND WANT TO BE CIVILLY MARRIED OR HAVE THEIR LEGAL MARRIAGE RECOGNIZED IN THE STATE OF UTAH, JUST LIKE OPPOSITE-SEX COUPLES DO EVERY DAY IN THIS STATE, WITH ALL OF THE RESPECT AND STABILITY THAT COMES WITH THAT STATE RECOGNITION, AND ALL OF THE LEGAL RIGHTS, BENEFITS AND OBLIGATIONS THAT FLOW AS A NATURAL COURSE OF HAVING THIS STATE SANCTION AND RECOGNIZE CIVIL MARRIAGE. PLAINTIFFS ARE NO DIFFERENT FROM THE PLAINTIFFS IN THE LOVING CASE WHO DID NOT SHARE THE WHITE MAJORITY'S VIEW OF WHITE SUPREMACY. AND THE SUPREME COURT STRUCK DOWN

ANTI-MISCEGENATION LAWS AS UNCONSTITUTIONAL UNDER BOTH THE DUE PROCESS CLAUSE AND THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT, SO BLACK AND WHITE CITIZENS ALIKE IN LOVING, COMMITTED RELATIONSHIPS COULD EXERCISE THEIR

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CONSTITUTIONAL RIGHT OF CHOICE, THE CONSTITUTIONAL RIGHT TO CHOOSE THE PERSON WITH WHOM THEY WOULD SPEND THE REST OF THEIR LIFE IN A CIVILLY SANCTIONED COMMITTED RELATIONSHIP. JUST LIKE THE SUPREME COURT IN BROWN VERSUS BOARD OF EDUCATION HELD THAT IT WAS UNCONSTITUTIONAL TO SEGREGATE WHITE CITIZENS FROM BLACK CITIZENS IN GRANTING ACCESS TO EDUCATION, BECAUSE THAT IS A CONTEXT THAT SHAPES PEOPLE'S LIVES AND THEIR FUTURES, JUST LIKE MARRIAGE DOES IN THIS CASE. THIS COURT MUST HOLD HERE THAT IT IS LIKEWISE UNCONSTITUTIONAL TO SEGREGATE SAME-SEX COUPLES FROM OPPOSITE-SEX COUPLES IN GRANTING A CIVIL RIGHT TO -FUNDAMENTAL RIGHT TO MARRIAGE. FOR IF SEPARATE EQUALITY IS

INHERENTLY UNEQUAL WHEN IT COMES TO EDUCATION, AS THE BROWN COURT HELD, PROVIDING NO FORM OF MARRIAGE EQUALITY IN THIS STATE BUT ALLOWING IT FOR OPPOSITE-SEX COUPLES SURELY IS UNCONSTITUTIONAL. THERE ARE A NUMBER OF THINGS ON WHICH THE PLAINTIFFS AND THE DEFENDANTS AGREE IN THIS CASE, AND ONE OF THOSE IS THAT THE PLAINTIFFS ARE SAME-SEX COUPLES WHO ARE IN LOVING, COMMITTED RELATIONSHIPS. AND LIKE OPPOSITE-SEX COUPLES, THEY

DESIRE TO CIVILLY MARRY IN THE STATE WHERE THEY LIVE, WHERE THEIR FAMILIES RESIDE, AND WHERE THEY WORK, AND WHERE THEY CONTRIBUTE TO THE PRODUCTIVITY OF THIS STATE, JUST LIKE ANY OPPOSITE-SEX COUPLE. ONE OF THE PLAINTIFF COUPLES IN FACT, MS. ARCHER AND

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MS. CALL, HAVE SOLEMNIZED THEIR MARRIAGE BY GETTING MARRIED IN THE STATE OF IOWA. BUT UNLIKE OPPOSITE-SEX COUPLES WHO ARE

LEGALLY MARRIED IN OTHER STATES, THIS STATE WILL NOT RECOGNIZE THE LEGALITY OF THAT MARRIAGE. PLAINTIFFS OF COUPLE -- AS COUPLES MEET EVERY REQUIREMENT UNDER STATE LAW TO MARRY AND HAVE THEIR OUT-OF-STATE MARRIAGE RECOGNIZED IN THE STATE, WITH THE ONE SINGLE EXCEPTION, THAT THEY ARE THE SAME GENDER. FROM ONE ANOTHER. UNDER UTAH'S MARRIAGE DISCRIMINATION LAWS, PLAINTIFFS AS COUPLES ARE BARRED FROM MARRYING ONE ANOTHER BASED SOLELY ON THEIR GENDER AND THE FACT THEY LOVE SOMEONE OF THE SAME GENDER. PLAINTIFFS AS LEGALLY MARRIED COUPLES ARE BARRED THEY ARE NOT THE OPPOSITE GENDER

RECOGNITION IN THIS STATE SOLELY BECAUSE THEY ARE MARRIED TO SOMEONE OF THE SAME GENDER AND LOVE SOMEONE OF THE SAME GENDER. THAT IS THE BEGINNING OF -- AND ENDING OF WHY THERE

IS MARRIAGE EQUALITY IN THIS STATE. THERE IS NO MARRIAGE EQUALITY SOLELY BECAUSE OF PLAINTIFFS' SEXUAL ORIENTATION AND PLAINTIFFS' GENDER. THAT

BAN ON SAME-SEX MARRIAGE BASED SOLELY ON SEXUAL ORIENTATION AND GENDER VIOLATES BOTH THE EQUAL PROTECTION CLAUSE AND THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION. THE COURT: IF I FIND THAT, WILL I BE THE FIRST

FEDERAL COURT IN THE NATION TO MAKE THAT FINDING?

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 HONOR.

MS. TOMSIC:

IT'S A YES AND NO ANSWER, YOUR HONOR.

AND THE REASON I SAY THAT IS I THINK, AND AS I GET TO WINDSOR YOU WILL SEE THIS, IS THAT THE SUPREME COURT IN WINDSOR WAS DEALING WITH THE FIFTH AMENDMENT, WHICH IS A DUE PROCESS CLAUSE, AND THE SUPREME COURT FOUND THAT THAT RIGHT INCLUDED BOTH DUE PROCESS AND EQUAL PROTECTION. AND WHILE IT WAS A -- A FEDERAL LAW, I THINK BECAUSE THE COURT FOUND A VIOLATION BOTH OF DUE PROCESS AND EQUAL PROTECTION, YOU CAN READ INTO WINDSOR AT LEAST THAT HOLDING. BUT IN TERMS OF AN EXPRESS HOLDING BY ANY COURT IN THIS NATION, AT THIS LEVEL, POST-WINDSOR, YES, YOUR HONOR, YOU WOULD BE THE FIRST. CONGRATULATIONS. LET'S MAKE UTAH THE

18TH STATE SINCE TIDE IS MOVING. THE COURT: VIEW OF IT. MS. TOMSIC: I HAVE READ THAT IN HIS PAPERS, YOUR EITHER OF THOSE VIOLATIONS, YOUR I THINK MR. LOTT MAY HAVE A DIFFERENT

IT SURPRISES ME.

HONOR, REQUIRE THIS COURT TO DECLARE UTAH'S MARRIAGE DISCRIMINATION LAWS UNCONSTITUTIONAL AND TO GRANT THE PLAINTIFFS A PERMANENT INJUNCTION ENJOINING THE ENFORCEMENT OF THOSE UNCONSTITUTIONAL LAWS AND TO DO IT NOW. THE

DISCRIMINATION HAS GONE ON LONG ENOUGH WITHOUT CHALLENGE AND WITHOUT RESOLUTION. FOR THOSE REASONS, PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT MUST BE GRANTED AND THE STATE'S MOTION DENIED. THE

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UNITED STATES SUPREME COURT IN WINDSOR IN JUNE OF THIS YEAR MADE THAT CONCLUSION INEVITABLE AND REMOVED ANY LINGERING DOUBT THAT MARRIAGE INEQUALITY IS UNCONSTITUTIONAL. DURING MY ORAL ARGUMENT, AND I'M SURE YOU'RE GOING TO BE HAPPY TO HEAR THIS, YOUR HONOR, I'M NOT GOING TO ADDRESS EVERY ISSUE AND EVERY ARGUMENT THAT WE HAVE PUT FORTH IN -- AND I DON'T KNOW WHY WE CALL THEM BRIEFS BECAUSE THEY'RE ANYTHING BUT THAT IN THIS CASE. BUT WHAT I AM GOING TO DO IS FOCUS ON

SOME OF THE MORE IMPORTANT ISSUES THAT WE BELIEVE MAY HELP YOU DECIDE IN OUR FAVOR. THE FACT I DON'T ADDRESS A PARTICULAR ARGUMENT OR POSITION DOESN'T MEAN WE DON'T FULL-HEARTEDLY BELIEVE IN IT OR BELIEVE THAT THE COURT'S DECISION COULD IN FACT BE BASED ON THOSE GROUNDS AND THOSE ARGUMENTS. LET ME TURN FIRST, IF I COULD, TO THE EQUAL PROTECTION CLAIMS THAT THE PLAINTIFFS IN THIS CASE HAVE MADE. THE EQUAL

PROTECTION CLAUSE, YOUR HONOR, AS YOU KNOW, OF THE FOURTEENTH AMENDMENT PROVIDES, AND I'M QUOTING, NO STATE SHALL DENY TO ANY PERSON WITHIN ITS JURISDICTION THE EQUAL PROTECTION OF THE LAWS. IT DOES NOT EXCEPT OUT GAY MEN OR LESBIANS. IT DOES

NOT EXCEPT OUT SAME-SEX COUPLES.

IT APPLIES TO GAY AND

LESBIAN INDIVIDUALS AND SAME-SEX COUPLES, JUST AS IT DOES TO ANY OTHER CITIZEN OF THE UNITED STATES. THE OFT-STATED REQUIREMENT FOR EQUAL PROTECTION IS THAT PEOPLE WHO ARE SIMILARLY SITUATED SHALL -- AND THE WORD IS

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SHALL -- BE TREATED ALIKE.

THE PLAINTIFFS, THE SAME-SEX

COUPLES WHO WANT TO BE LEGALLY MARRIED AND HAVE THEIR LEGAL MARRIAGE RECOGNIZED IN THIS STATE, ARE SIMILARLY SITUATED TO THEIR OPPOSITE-SEX COUNTERPARTS WHO ARE IN THE SAME RELATIONSHIPS THAT THE PLAINTIFFS ARE IN. COMMITTED RELATIONSHIPS. THEY ARE IN LOVING,

THEY WANT TO HAVE THE RIGHT TO BE

LEGALLY MARRIED AND RECEIVE THE LEGAL BENEFITS, RIGHTS AND OBLIGATIONS THAT FLOW FROM IT, AND HAVE THEIR LEGAL MARRIAGE RECOGNIZED IN UTAH TO GIVE THE STABILITY AND THE SANCTION FROM THE STATE AS WELL AS THOSE LEGAL RIGHTS AND OBLIGATIONS THAT NATURALLY FLOW TO SIMILARLY SITUATED OPPOSITE-SEX COUPLES IN THIS STATE. THERE IS NO MATERIAL DIFFERENCE BETWEEN THOSE COUPLES WHO ARE OPPOSITE-SEX COUPLES AND SAME-SEX COUPLES FOR PURPOSES OF THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT. THE COURT: MS. TOMSIC: WHAT CASE STANDS FOR THAT PROPOSITION? I WOULD SAY YOU COULD LOOK AT WINDSOR.

YOU COULD LOOK AT JUDGE WALKER'S DECISION IN THE DISTRICT OF CALIFORNIA. YOU COULD LOOK AT THE SECOND CIRCUIT'S DECISION GOSH, THERE ARE JUST -- EVERY CASE THAT

IN THE WINDSOR CASE.

HAS HELD AT A LOWER COURT LEVEL PRE -- OR PRE WINDSOR THAT -OTHER THAN NEVADA AND HAWAII AND A COUPLE OUTLYING CASES THAT HAVE BROUGHT MARRIAGE EQUALITY TO THEIR STATES, HAVE HELD THAT THE PLAINTIFFS -- I MEAN THAT SAME-SEX COUPLES AND OPPOSITE-SEX COUPLES FOR EQUAL PROTECTION PURPOSES ARE

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SIMILARLY SITUATED. AND, YOUR HONOR, I THINK IF YOU LOOK AT THE RECORD, WHICH IS UNDISPUTED IN THIS CASE, THERE IS NO QUESTION THAT THESE PLAINTIFFS HAVE TESTIFIED UNDER OATH IN THOSE DECLARATIONS IN TERMS OF THEIR LOVING, COMMITTED RELATIONSHIPS THE FACT THAT THEY, LIKE OPPOSITE-SEX COUPLES, ARE PRODUCTIVE MEMBERS OF THE COMMUNITY. THEY DO WHAT EVERYBODY ELSE IN THIS COMMUNITY

DOES, WHICH IS LIVE THEIR LIVES AND CONTRIBUTE TO THIS SOCIETY. AND THE OTHER THING I WOULD SAY, YOUR HONOR, WE SUBMITTED THE DECLARATION OF DR. PEPLAU, WHO IS ONE OF THE FOREMOST EXPERTS IN THE PSYCHOLOGY FIELD IN THIS AREA, AND SHE EMPHATICALLY TESTIFIES THAT THEY ARE SIMILARLY SITUATED IN EVERY MATERIAL RESPECT. THE COURT: OF COURSE IT'S JUST NOT THAT SIMPLE

UNDER OUR FOURTEENTH AMENDMENT JURISPRUDENCE, IS IT? MS. TOMSIC: THE COURT: I THINK IT DEPENDS -WE HAVE COMPLICATED TESTS AND ANALYSES, THE SUPREME COURT INSTRUCTS ME THAT

FOUR-PART TESTS WE APPLY.

WE TREAT DIFFERENT CLASSES OF PEOPLE DIFFERENTLY UNDER THE EQUAL PROTECTION CLAUSE. IT'S NOT JUST AS SIMPLE AS SAYING,

WELL, YOU'RE SIMILARLY SITUATED SO IT'S THE SAME SAME. MS. TOMSIC: WELL, YOUR HONOR, I THINK YOU HAVE TO

LOOK AT THE PURPOSE FOR WHICH YOU'RE MAKING THAT DETERMINATION. AND IF YOU SAY ARE SAME-SEX COUPLES SIMILARLY

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SITUATED TO OPPOSITE-SEX COUPLES IN TERMS OF BOTH PEOPLE IN THE RELATIONSHIP HAVING OPPOSITE GENDERS, YEAH, THEY'RE NOT THAT WAY. I MEAN THEY ARE NOT SIMILARLY SITUATED. BUT FOR

PURPOSES OF THE EQUAL PROTECTION CLAUSE THAT DIFFERENCE DOESN'T MATTER. I MEAN YOU COULD -BUT THE COURTS SAY THAT IT DOES. THE

THE COURT:

SUPREME COURT TELLS ME FOR EXAMPLE THAT THERE'S A DIFFERENCE WHEN I'M EVALUATING A CLASS BASED ON RACE OR BASED ON GENDER OR BASED ON SOCIOECONOMIC STATUS. MS. TOMSIC: WELL, YOUR HONOR, I THINK -- AND I

GUESS WHERE I'M HAVING A LITTLE DISCONNECT HERE -- AND I THINK REALLY WHEN I LOOK AT THOSE CASES AND THOSE CHARACTERISTICS IN TERMS OF CLASS DIFFERENTIATION, WHERE YOU SEE THE PLETHORA OF ANALYSIS IS WHEN COURTS ARE STRUGGLING TO DETERMINE WHETHER A CLASS IS A QUASI OR ACTUAL SUSPECT CLASSIFICATIONS. REALLY IN THAT CONTEXT, WHICH I'M NOT ARGUING YET. GOT THERE. AND IT'S I HAVEN'T

BUT I THINK WHERE YOU'RE SEEING THAT REAL

DIFFERENTIATION IS IN THE AREA OF WHAT LEVEL OF SCRUTINY DO YOU APPLY. DO WE INCLUDE THIS IN THE QUASI-SUSPECT OR IN THE AND WHAT I'M TALKING ABOUT IS

SUSPECT CLASSIFICATION?

SIMILARLY SITUATED FOR PURPOSES OF EQUAL PROTECTION UNDER THE FOURTEENTH AMENDMENT. THE COURT: MS. TOMSIC: UNDERSTOOD. NOW, THAT KIND OF DOVETAILS INTO ONE OF

THE ARGUMENTS THAT THE STATE DEFENDANTS MADE, AND THAT IS,

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GEE, THESE GUYS ARE NOT SIMILARLY SITUATED FOR PURPOSES OF EQUAL PROTECTION FOR TWO REASONS. GENDER. ONE, THEY'RE DIFFERENT

BUT MY POINT IS, YOUR HONOR, THAT DIFFERENCE DOESN'T

MAKE ANY DIFFERENCE BECAUSE YOU COULD MAKE THAT ARGUMENT IN LOVING. BLACK CITIZENS AND WHITE CITIZENS HAVE DIFFERENT

PHYSICAL CHARACTERISTICS, IF YOU'RE LOOKING AT A GENERALIZATION. IT IS A NONMATERIAL FACTOR. AND WHEN I LOOK

AT THAT ARGUMENT, I SAY, MY GOSH, THE STATE IS GRASPING AT STRAWS TO GET THIS COURT TO MAKE A FUNDAMENTAL ERROR IN ANALYZING THIS CASE. THE OTHER THING THAT THE STATE DOES, YOUR HONOR, IS THEY SAY, GOSH, THERE'S A DIFFERENCE BASED ON PROCREATION, THEREFORE, THEY'RE NOT SIMILARLY SITUATED. FOR TWO REASONS, AND LET ME TELL YOU WHY. WELL, THAT'S WRONG NUMBER ONE,

PROCREATION HAS NEVER, EVER, EVER BEEN A CONDITION OF GRANTING A LICENSE TO GET MARRIED CIVILLY IN THIS STATE. AND IN FACT I

KNOW YOU'VE READ THE STATE'S BRIEFS, THEY'RE EMPHATIC THEY'RE NEVER GOING TO MAKE IT A CONDITION. AND THE SUPREME COURT HAS MADE IT CLEAR IN -- GOSH, I -THE TURNER CASE AND GRISWOLD CASE THAT PROCREATION IS NOT A FUNDAMENTAL CHARACTERISTIC OF MARRIAGE. AND IF IT IS NOT A

FUNDAMENTAL CHARACTERISTIC TO DETERMINE THAT THE RIGHT TO MARRIAGE IS A FUNDAMENTAL RIGHT UNDER THE DUE PROCESS CLAUSE, IT SURE AS HECK CANNOT BE A CHARACTERISTIC THAT DIFFERENTIATES SAME-SEX COUPLES FROM OPPOSITE-SEX COUPLES FOR PURPOSES OF THE

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EQUAL PROTECTION CLAUSE. AND NOT ONLY THAT, YOUR HONOR, THEY'RE JUST WRONG. SAME-SEX COUPLES CAN AND DO PROCREATE. THEY HAVE CHILDREN.

THEY HAVE CHILDREN JUST LIKE OPPOSITE-SEX COUPLES THROUGH SEXUAL INTERCOURSE. INSEMINATION. RELATIONSHIPS. THEY HAVE CHILDREN THROUGH ARTIFICIAL

THEY HAVE CHILDREN THROUGH SURROGATE IT'S JUST, ONE, IT DOESN'T MATTER, BUT EVEN IF

IT DID, IT'S NOT TRUE. SO AT THE END OF THE DAY, YOUR HONOR, WHEN YOU'RE LOOKING AT THE EQUAL RIGHTS ISSUE OF SIMILARLY SITUATED, THE PLAINTIFFS HAVE ABSOLUTELY DEMONSTRATED FOR ALL RELEVANT PURPOSES THE PLAINTIFFS ARE SIMILARLY SITUATED TO THEIR COUNTERPART OPPOSITE-SEX COUPLES WHO ARE IN THE SAME POSITION OF WANTING TO BE MARRIED. UTAH'S DISCRIMINATION LAWS VIOLATE THE EQUAL PROTECTION CLAUSE BY NOT TREATING PLAINTIFFS THE SAME AS THEIR SIMILARLY SITUATED OPPOSITE-SEX COUNTERPARTS. WHILE THERE ARE THREE

LAWS THAT ARE THE SUBJECT OF OUR LAWSUIT, I AM GOING TO FOCUS ON AMENDMENT 3 BECAUSE IF AMENDMENT 3 FALLS, THE REST OF THESE LAWS FALL. AMENDMENT 3, WHICH WENT INTO EFFECT ON JANUARY 1ST, 2005, EXCLUDES AND ONLY EXCLUDES SAME-SEX COUPLES FROM MARRYING OR HAVING THEIR LEGAL MARRIAGE RECOGNIZED FROM ANOTHER STATE. JENNIFER, IF YOU'D PUT UP 1.2, PLEASE. AMENDMENT 3 STATES, ONE, MARRIAGE CONSISTS ONLY OF THE

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LEGAL UNION BETWEEN A MAN AND A WOMAN.

TWO, NO OTHER DOMESTIC

UNION, HOWEVER DENOMINATED, MAY BE RECOGNIZED AS A MARRIAGE OR GIVEN THE SAME OR SUBSTANTIALLY EQUIVALENT LEGAL EFFECT. BY SINGLING OUT THE CATEGORY OF SAME-SEX COUPLES, IT'S A CATEGORIZATION BASED ON SEXUAL ORIENTATION, WHO ARE SIMILARLY SITUATED TO THEIR COUNTERPART OPPOSITE-SEX COUPLES WHO ARE ALLOWED TO MARRY. AND DENYING THEM THE RIGHT TO MARRY, THEY

VIOLATE THE PLAINTIFFS' EQUAL PROTECTION RIGHTS UNDER THE FOURTEENTH AMENDMENT. WINDSOR IS THE BEGINNING AND ENDING POINT FOR THIS COURT TO DETERMINE THE EQUAL PROTECTION CLAIM OF THE PLAINTIFFS IN THIS CASE. WINDSOR IS THE SUPREME COURT PRECEDENT IN WHICH

THIS COURT MUST WRAP ITSELF IN DECIDING PLAINTIFFS' EQUAL PROTECTION CLAIM. WINDSOR IS THE ONLY SUPREME COURT DECISION

TO ADDRESS WHETHER A LAW BANNING SAME-SEX MARRIAGE VIOLATES THE EQUAL PROTECTION AND DUE PROCESS RIGHTS GUARANTEED BY THE UNITED STATES CONSTITUTION. IN WINDSOR THE SUPREME COURT SCRUTINIZED DOMA, WHICH IS ALMOST THE MIRROR IMAGE OF UTAH'S MARRIAGE DISCRIMINATION LAWS, EXCEPT UTAH'S LAWS ARE MORE INVIDIOUSLY DISCRIMINATING THAN DOMA BASED ON THE HARM AND INJURY THEY CAUSE TO SAME-SEX COUPLES LIVING IN UTAH. SAME-SEX COUPLES UNDER UTAH'S LAW ARE NOT JUST EXCLUDED FROM BEING PROVIDED CERTAIN LEGAL BENEFITS, THEY ARE DEPRIVED COMPLETELY WITH THE RIGHT TO GET MARRIED OR HAVE THEIR

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MARRIAGE RELATIONSHIP RECOGNIZED IN THIS STATE.

BUT NOT ONLY

THAT, THEY ARE EXCLUDED UNDER THE EXPRESS WORDS OF AMENDMENT 3 PART 2 FROM EVEN ENTERING INTO ANY LEGAL RELATIONSHIP THAT WOULD GIVE THEM THE SAME LEGAL RIGHTS AND BENEFITS OF MARRIAGE. THIS AMENDMENT IS ONE OF THE MOST DRACONIAN

DEPRIVATIONS OF RIGHTS IN THE UNITED STATES. AND IN ADDITION, BECAUSE THIS IS A STATE LAW AND IT BEARS DIRECTLY ON RESIDENTS LIVING IN THIS STATE, THE INJURY AND HARM IS EVEN WORSE. EVERY DAY OF THESE PLAINTIFFS' LIVES THEY IT'S JUST NOT WHEN THEY FILE THEIR

DEAL WITH DISCRIMINATION. FEDERAL TAX RETURNS.

THEY HAVE TO DEAL WITH THE HUMILIATION,

THE STIGMATIZATION AND THE DEPRIVATION OF RIGHTS AT HOME, AT WORK, IN THEIR NEIGHBORHOODS, WHEN THEY GO TO SOCIAL EVENTS. SO IF YOU'RE EVEN COMPARING THE IMPACT BETWEEN DOMA AND THESE LAWS, YOU HAVE GOT TO FIND IT'S EVEN WORSE FOR THESE PLAINTIFFS. THROUGHOUT MY ARGUMENT REGARDING WINDSOR I AM GOING TO QUOTE LANGUAGE, AND I'M DOING IT FOR TWO REASONS, YOUR HONOR. THE LANGUAGE ITSELF IS VERY IMPORTANT IN TERMS OF RESOLVING THESE ISSUES, BUT BECAUSE IT'S THE SUPREME COURT OF THE UNITED STATES DEALING WITH THE ISSUE OF UNEQUAL TREATMENT IN THE MARRIAGE CONTEXT, IT IS THE PRECEDENCE THAT BINDS THIS COURT. IN WINDSOR THE SUPREME COURT HELD -AND, JEN, CAN I HAVE 1.3, PLEASE. THE DESIGN, PURPOSE AND EFFECT OF THE LAWS SHOULD BE

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CONSIDERED AS THE BEGINNING POINT IN DECIDING WHETHER THEY ARE VALID UNDER THE CONSTITUTION. IN LOOKING AT THE ACTUAL PURPOSE, WHICH -- DESIGN AND PURPOSE, WHICH IS WHAT THE SUPREME COURT HAS SAID IS THE BEGINNING POINT, THE SUPREME COURT CONSIDERED AND REJECTED CONGRESS' EXPRESS PURPOSE IN PASSING DOMA. STATEMENTS THAT CONGRESS MADE. AND THESE ARE THE

TO DEFEND THE INSTITUTION OF

TRADITIONAL HETEROSEXUAL MARRIAGE, TO EXPRESS MORAL DISAPPROVAL OF HOMOSEXUALITY, AND TO PROMOTE AN INTEREST IN PROTECTING THE TRADITION OF MORAL TEACHINGS REFLECTED IN HETEROSEXUAL-ONLY MARRIAGE LAWS. IN ADDITION, THE SUPREME COURT CONSIDERED AND REJECTED CLAIMS THAT DOMA WAS JUSTIFIED BY A GOVERNMENTAL INTEREST TO RATIONALLY PROCEED WITH CAUTION WHEN FACED WITH UNKNOWN CONSEQUENCES OF ALLOWING SAME-SEX COUPLES TO MARRY, TO PROVIDE A STRUCTURE TO RAISE UNINTENDED AND UNPLANNED OFFSPRING, TO ENCOURAGE THE REARING OF CHILDREN BY THEIR BIOLOGICAL PARENTS WHO ARE THE MOST SUITABLE GUARDIANS AND CAREGIVERS, AND TO PROMOTE CHILD REARING BY BOTH A MOTHER AND FATHER. THE COURT: AND AT LEAST ONE OF THOSE COMMENTS WAS

VERY IMPORTANT TO JUSTICE KENNEDY, AND I THINK THE OPINION TURNS IN PART ON THE PASSAGE WHERE JUSTICE KENNEDY NOTES THAT ESPECIALLY IN LIGHT OF THE ANIMUS, THAT HE CONCLUDES, THE MAJORITY CONCLUDES, MOTIVATED THE LAW THAT THE OTHER BASES THAT WERE OFFERED COULD NOT POSSIBLY PROVIDE A RATIONAL BASIS

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FOR CONGRESS' LAW.

THERE'S NO SUCH ANIMUS HERE, IS THERE? OH, THERE ABSOLUTELY IS, YOUR HONOR.

MS. TOMSIC:

AND I WANT TO TALK ABOUT IT BECAUSE I THINK THE STATE ARGUES THIS, IS THAT YOU CAN'T LOOK AT THE VOTER INFORMATION PACKET. WELL, I'M GOING, JUDGE, WAIT. I'LL GET TO THAT IN A MINUTE.

BUT IF YOU GO BACK TO THE FLOOR DEBATE -- AND WE PUT A TRANSCRIPT WHERE REPRESENTATIVE CHRISTENSEN GOT UP BEFORE THE OTHER REPRESENTATIVES TO PITCH AMENDMENT 3 TO GET A JOINT RESOLUTION TO PUT THIS ON THE BALLOT. AND IN HIS IMPASSIONED

PLEA TO GET HIS LEGISLATORS TO STAND BEHIND THIS, THERE IS NO QUESTION THAT IT WAS NOT -- THE EXCLUSION WAS NOT BASED ON ANY OF THESE INTERESTS BUT WAS BASED ON ANIMUS, PURE AND SIMPLE. AND LET ME JUST HOP AHEAD BECAUSE I WANT TO DEAL WITH THAT BECAUSE -THE COURT: WELL, WHILE YOU'RE LOOKING FOR THAT, LET

ME ASK YOU A RELATED QUESTION. MS. TOMSIC: THE COURT: CERTAINLY. SO WHEN THE SUPREME COURT IS LOOKING AT

CONGRESS' INTENT, THEY HAVE A RECORD THEY CAN EVALUATE, FLOOR SPEECHES BY LEGISLATORS, STATEMENTS MADE BY LEGISLATORS WHO THEN CAST VOTES, WHO ENACT THE LEGISLATION. IN THIS INSTANCE,

AT LEAST WITH RESPECT TO AMENDMENT 3, WE'RE TALKING ABOUT A REFERENDUM PUT TO THE CITIZENS OF THE STATE. AND DO WE IMPUTE

TO THE CITIZENS WHO VOTED IN FAVOR OF THIS AMENDMENT REPRESENTATIVE CHRISTENSEN'S THOUGHTS?

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MS. TOMSIC: HIS THOUGHTS.

WELL, YOUR HONOR, I THINK IT'S NOT JUST

IT WAS NOT ONLY -- I MEAN AND I THINK IF YOU

LOOK AT THAT TRANSCRIPT, HIS THOUGHTS ARE SHARED BY THE OTHER LEGISLATORS TRYING TO GET EVERYBODY TO VOTE FOR IT. AND JUST

AS CONGRESS PUT IN WRITING WHAT ITS PURPOSE WAS, THIS COURT IS ABSOLUTELY ENTITLED IN FOLLOWING THE SUPREME COURT'S DIRECTIVE TO LOOK AT THE DESIGN AND PURPOSE OF THE LAW TO DETERMINE THE PEOPLE WHO PASSED IT TO PUT IT ON THE BALLOT WHAT WAS THEIR INTENDED PURPOSE. YES, IT IS -- AND LET ME TELL YOU, JUDGE, YOU CAN LOOK AT ROMER, WHICH IS A FOURTEENTH AMENDMENT CASE BASED ON A COLORADO AMENDMENT, AND THE COURT ALLOWED LOOKING AT WHAT WAS EXPRESSED AS AN INTENT. AND WHERE YOU HAVE A REFERENDUM, THE

PLACES YOU'VE GOT TO LOOK ARE WHAT DID THE LEGISLATURES EXPRESS AS THE INTENT BEHIND THE AMENDMENT, AND THEN LOOK AT WHAT WERE THE VOTERS TOLD. THE COURT: WELL, HOW DO WE SQUARE THAT APPROACH

THAT YOU'RE URGING ME TO TAKE WITH THE CASE LAW DIRECTING ME THAT IF I APPLY A RATIONAL BASIS REVIEW, I DON'T LOOK AT THAT. I LOOK AT WHATEVER RATIONALE THE STATE MIGHT PUT FORWARD. WHETHER IT WAS THE REAL RATIONALE OR NOT, I DON'T MAKE A DETERMINATION, I DON'T MAKE A FACTUAL JUDGMENT ABOUT WHETHER WHAT THE LEGISLATURE SAID AT THE TIME MOTIVATED THEM OR WHAT THEY COME FORWARD WITH NOW. THE STATE -- DOESN'T -- I GUESS

WHAT I'M SAYING IS DOESN'T THE ANSWER TO THIS QUESTION TURN ON

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WHAT LEVEL OF SCRUTINY WE'RE GOING TO APPLY? MS. TOMSIC: THE COURT: RATIONAL BASIS -MS. TOMSIC: I DON'T. BUT FOR PURPOSES OF MY I DON'T BELIEVE SO. I WANT TO --

DO YOU AGREE WITH ME THAT UNDER A

ARGUMENT I'M GOING TO AGREE WITH YOU WHEN I GET TO RATIONAL BASIS BECAUSE I -- I DON'T EVEN WANT TO GO THERE. BUT I'LL

TELL YOU WHAT MY VIEWPOINT IS, HAVING READ ALL THESE DECISIONS AND TRIED TO DIGEST THEM AND UNDERSTAND THEM, IS IF YOU LOOK AT THE 1993 CASES THAT ARE CITED BY THE STATE WHERE YOU'VE GOT THOSE LOOSEY-GOOSEY ANYTHING GOES, WHICH TO ME IS JUST A USELESS EXERCISE, I MEAN IF THAT'S THE STANDARD, WHY DO YOU EVEN LOOK AT IT? BUT IF YOU LOOK AT THE RECENT SUPREME COURT DECISIONS -AND I'M GOING TO COME BACK TO ROMER, YOUR HONOR, BECAUSE IN THAT CASE THE SUPREME COURT ABSOLUTELY DID NOT USE THAT STANDARD OF ASSUMING ANYTHING. IF YOU LOOK AT ROMER, ROMER YOU

SAID YOU'VE GOT TO DO EXACTLY WHAT THE SUPREME COURT DID.

HAVE GOT TO LOOK AT THE DESIGN AND PURPOSE AND EFFECT AS YOUR BEGINNING POINT. AND ONCE YOU LOOK AT THE REAL PURPOSE BEHIND IT, THEN WHAT YOU CAN DO IS STEP BACK AND SAY, OKAY, STATE, WHAT OTHER INTERESTS ARE YOU TELLING ME YOU'VE GOT ONCE WE LOOK AND WE FIND ANIMUS IN THE PURPOSE? SO I WOULD SAY, ONE, I JUST DON'T

THINK YOU'RE RIGHT, IN ALL DUE RESPECT, YOUR HONOR, BUT EVEN

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IF YOU ARE, I WILL SHOW YOU WHY IT DOESN'T MATTER. THE COURT: MS. TOMSIC: YOU'D BE EXCITED. I CAN'T WAIT. OKAY. I KNEW YOU'D BE EXCITED. I KNEW

BUT WHAT I DO WANT TO SHOW YOU, YOUR HONOR,

IS I WANT TO SHOW YOU WHY THERE IS NO QUESTION THAT AMENDMENT 3 IS BASED ON ANIMUS, AND IT ABSOLUTELY IS WORSE THAN WHAT CONGRESS SAID, IF IT COULD BE, IN TERMS OF THE PURPOSE FOR AMENDMENT 3. JENNIFER, WOULD YOU PUT UP 1.5. THIS IS REPRESENTATIVE CHRISTENSEN STANDING BEFORE THE LEGISLATURE TALKING ABOUT WHAT A MOMENTOUS OCCASION IT IS FOR THIS STATE TO BE ABLE TO PASS -- OR PUT THIS AMENDMENT ON THE BALLOT. AND HE SAYS, WE'VE COME FACE TO FACE WITH WHAT

ABRAHAM LINCOLN LONG AGO SAID IN HIS DAY WOULD CONTINUE TO BE THE ETERNAL STRUGGLE BETWEEN RIGHT AND WRONG THAT WOULD GO ON FOR EVER AND EVER. WE SHOULD NOT SHY AWAY FROM THE NOTION

THAT THIS IS INDEED A MORAL QUESTION, FOR SURELY IT IS, AND WE MAKE NO APOLOGIES FOR THAT. YOU CAN BE COMPASSIONATE AND

EMPATHETIC, KIND AND CONSIDERATE, WITHOUT LOWERING STANDARDS OR TRANSFORMING FUNDAMENTAL PRINCIPLES UPON WHICH OUR SOCIETY IS BASED. IT WAS JOHN ADAMS LONG AGO THAT SAID THE IT IS

CONSTITUTION IS ONLY SUITED AND FIT FOR A MORAL PEOPLE. UNFIT FOR ANY OTHER. JEN, GO TO THE NEXT PAGE.

IT WAS WASHINGTON LONG AGO THAT SAID IT IS IMPOSSIBLE TO

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GOVERN WITHOUT THE BIBLE.

WE MEASURE TIME FORWARD AND

BACKWARDS FROM THE BIRTH OF JESUS CHRIST, AND WE LOOK TO HIM. WE NOT ONLY PRAY EACH MORNING, BUT WE LOOK TO HIM FOR THE EXEMPLAR HE IS. HE LOVED ALL PEOPLE. HE BLESSED ALL PEOPLE. BUT HE DIDN'T LOWER HIS

HE SHOWED GREAT COMPASSION AND MERCY.

STANDARDS WHILE HE WAS DOING IT, END QUOTE. AND, YOUR HONOR, I SAY THIS COURT IN FOLLOWING THE DIRECTION OF WINDSOR, FOLLOWING THE DIRECTION OF THE SUPREME COURT IN ROMER, MUST LOOK AT THE ACTUAL EXPRESS INTENT FOR AMENDMENT 3, AND HE IS THE SPONSOR. AND I'LL GET TO ONE OF

THE LEGISLATORS WHO CALLED HIM ON IT, WHO CALLED HIM ON IT. THE COURT: BUT WE CODIFY MORALITY, DON'T WE? ISN'T

OUR CRIMINAL CODE AN ENTIRE SET OF STATUTES CRIMINALIZING CONDUCT ON THE BASIS THAT WE DETERMINE THAT CONDUCT IS IMMORAL? YOU CAN'T COME TO MY HOUSE AND STEAL MY STUFF WE

BECAUSE WE MAKE A MORAL JUDGMENT THAT THAT'S WRONG. LEGISLATE MORALITY, DON'T WE? MS. TOMSIC: OF SOCIETY.

IN CERTAIN CIRCUMSTANCES FOR THE BETTER

THERE IS NO QUESTION THAT THERE IS A MORAL BUT THE SUPREME COURT HAS

COMPONENT IN THE CRIMINAL LAWS.

MADE VERY CLEAR THAT A COURT CANNOT IMPOSE MORALITY IN THE FACE OF INEQUALITY THAT IS GUARANTEED BY THE SUPREME COURT -OR I MEAN UNDER THE CONSTITUTION. AND WHERE YOU HAVE A BILL THAT IS NOT FURTHERING -- ITS PURPOSE IS NOT TO FURTHER A SOCIETAL PURPOSE TO PROTECT

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SOCIETY, TO ENSURE THAT PEOPLE ARE TEARING APART THE FOUNDATION OF THIS NATION, BUT IS BASED ON ANIMUS AND A RELIGIOUS AND POLITICAL DISAGREEMENT FROM A MORAL STANDPOINT WITH THE LIFE CHOICE DESTINY AND IDENTIFICATION OF WHO A HUMAN IS, THERE IS A DIFFERENTIATION. THE COURT: ICE, AREN'T WE? BUT NOW WE'RE TREADING INTO -- ONTO THIN

I MEAN ONE THING THE JUDICIARY HAS TO BE

CAREFUL OF IS NOT TO ENGAGE IN LEGISLATING, NOT TO LOOK AT LEGISLATION AND THE PURPOSES OR INTENT OF LEGISLATION AND SELF-SELECT THOSE PARTS THAT THE COURT FINDS MIGHT BE BAD OR MIGHT BE GOOD. I'M NOT ALLOWED TO SUBSTITUTE MY JUDGMENT FOR

THE STATE LEGISLATURE, AM I? MS. TOMSIC: IT, YOUR HONOR. AND I'M NOT ASKING YOU TO SUBSTITUTE

I THINK AS A GENERAL PROPOSITION, I THINK AS BUT YOU KNOW WHAT,

AN ETHEREAL CONCEPT, THAT MAY BE TRUE. YOU'RE BOUND BY WINDSOR. DO.

THAT IS NOT WHAT WINDSOR SAYS YOU

YOU HAVE TO LOOK AT THE DESIGN AND PURPOSE OF THIS

CONSTITUTIONAL AMENDMENT. THE COURT: AND SO HOW DO I DO THAT WHERE AN I KNOW

ELECTORATE WENT TO THE POLLS AND CAST THEIR BALLOTS? LEGISLATORS SAID THINGS, PROBABLY ON BOTH SIDES.

I SUSPECT

MR. LOTT CAN STAND UP AND PROVIDE TO ME OTHER BASES THAT WERE OFFERED BY OTHER LEGISLATORS IN SUPPORT OF THIS. DO I

SELF-SELECT THE GOOD PARTS AND BAD PARTS, ESPECIALLY WHEN THE ELECTORATE CAME AFTER THE FACT AND MADE THE DECISION

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THEMSELVES? MS. TOMSIC: YOU'RE NOT SELECTING ANYTHING. YOU

HAVE THE SPONSOR OF THIS BILL TELLING THE SENATE -- I MEAN, EXCUSE ME, TELLING THE HOUSE WHAT THE PURPOSE OF THIS AMENDMENT IS. YOU HAVE OTHER MEMBERS OF THE HOUSE JUMPING ON I

BOARD AND SAYING THOSE RELATIONSHIPS ARE NOT SANCTIFIED.

MEAN THERE IS NO QUESTION THAT YOU HAVE TO LOOK AT THE PRIMARY PURPOSE. BUT, YOUR HONOR, I WANT TO GIVE YOU A LITTLE COMFORT HERE. EVEN IF YOU DON'T BELIEVE THAT YOU COULD LOOK AT THE

FLOOR DEBATES, WHICH I THINK UNDER WINDSOR YOU'VE GOT TO BECAUSE IT IS THE LEGISLATURE EXPRESSING WHY THEY'RE DOING WHAT THEY'RE DOING. WHAT DID THE VOTERS LOOK AT BEFORE THEY CAST THEIR VOTES? THE STATE OF UTAH UNDER THE DIRECTIVE OF THE LIEUTENANT GOVERNOR PREPARED A VOTERS INFORMATION PAMPHLET, YOUR HONOR. AND IF YOU CAN'T LOOK AT THAT TO DETERMINE WHAT THE PURPOSE AND DESIGN IS, I MEAN BASICALLY WINDSOR WILL MEAN NOTHING, ROMER WILL MEAN NOTHING. YOU WILL BASICALLY BE WALKING AWAY

FROM TWO SUPREME COURT DECISIONS THAT DIRECT YOU TO LOOK AT THAT AND NOT SIMPLY THROW YOUR HANDS IN THE AIR AND SAY, GOSH, THE VOTERS VOTED ON IT. MIND. WELL, YOU KNOW WHAT, IN ROMER IT WAS A CONSTITUTIONAL AMENDMENT. AND THE COURT DIDN'T SAY, OH, GOSH, WE CAN'T DO I DON'T KNOW WHAT WAS IN JOHN DOE'S

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THAT.

THEY DID LOOK AT WHAT THE PURPOSE WAS.

THEY DID

EXACTLY THE ANALYSIS UNDER WINDSOR.

AND YOU ARE REQUIRED TO

DO IT TOO AND NOT SIDESTEP IT AND SIMPLY SAY, OH, GOSH, I CAN'T FIND ANY PURPOSE. AND I WOULD SAY LET'S LOOK AT THE

VOTER INFORMATION PAMPHLET BECAUSE THAT IS A CRITICAL PIECE OF UNCONTROVERTED EVIDENCE IN THIS CASE. THE COURT: THE COURT IN ROMER DID THAT UNDER A

RATIONAL BASIS REVIEW AS WELL, IS THAT TRUE? MS. TOMSIC: THEY SAY -- THEY USE THAT WORD, BUT IF

YOU LOOK AT WHAT THEY DID, IT IS ABSOLUTELY CONTRARY TO THE CASES THAT THE STATE HAS CITED. THE COURT: WELL, THIS IS WHY I'M ASKING. IS IT A

NEW RATIONAL BASIS REVIEW? MS. TOMSIC: I WOULD SAY -- YOU KNOW, I DON'T WANT

TO GET TRAPPED ON THIS BECAUSE I'M GOING TO HAVE TO BE ARGUING THIS ON APPEAL. BUT LET ME TELL YOU MY PERSPECTIVE ON THIS,

IS I THINK IF YOU LOOK AT ROMER, IT IS A TOTALLY DIFFERENT TYPE OF ANALYSIS THAN THE SUPREME COURT HAS USED PRIOR TO WINDSOR WITH REGARD TO STATE LAWS. AND I THINK THERE IS NO

QUESTION IN MY MIND IF YOU WANT TO CALL IT RATIONAL BASIS, GOSH, I DON'T KNOW, I THINK IT IS NOT RATIONAL BASIS. IT'S ANOTHER FORM OF HEIGHTENED SCRUTINY. I THINK

AND I THINK THE

FACT THAT WINDSOR DIDN'T EVEN TALK ABOUT WHAT THE STANDARD WAS IS AN INDICATION THAT THIS STANDARD THAT'S BEING APPLIED IS NOT THE TRADITIONAL RATIONAL BASIS SCRUTINY. IT IS A

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HEIGHTENED LEVEL WHERE YOU ARE DEALING WITH SOME KIND OF DISCRIMINATION AND ANIMUS TOWARD A MINORITY GROUP BASED ON SEXUAL ORIENTATION. THE COURT: IS THAT SOMETHING THAT YOU THINK I HAVE

TO CONCLUDE IS PRESENT HERE FOR ME TO REACH THE SORT OF ANALYSIS WE SAW IN ROMER AND WINDSOR? MS. TOMSIC: THE COURT: MS. TOMSIC: THAT THERE IS ANIMUS? YES. I WOULD SAY NO, BUT I THINK YOU'LL BE

HARD PRESSED IF YOU REALLY FOLLOW THE DIRECTIVES OF THOSE TWO CASES NOT TO FIND IT HERE BASED ON THE ONLY EVIDENCE BEFORE YOUR HONOR. THE COURT: OF THAT EVIDENCE. MS. TOMSIC: OUTLINE. I DO. I LIKE HOPPING AROUND IN MY I KEEP INTERRUPTING YOU. YOU HAVE SOME

IT KEEPS ME ACTIVE.

LET'S LOOK AT 1.7, JEN, IF YOU CAN PUT IT UP. NOW, YOUR HONOR, YOU'LL REMEMBER FROM LOOKING AT THE VOTER INFORMATION PAMPHLET THIS IS THE OFFICIAL DOCUMENT THAT IS SENT OUT TO POTENTIAL VOTERS WITH REGARD TO VARIOUS ISSUES, INCLUDING PROPOSED CONSTITUTIONAL AMENDMENTS. AND IN 2004

WHEN AMENDMENT 3 WAS PUT ON THE BALLOT FOR THE GENERAL ELECTION, VOTER INFORMATION PAMPHLET WAS SENT OUT AND THE LIEUTENANT GOVERNOR BLESSED IT. AND THERE ARE TWO SECTIONS IN IT. THERE IS THE

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IMPARTIAL.

AND I THINK, JUDGE, IF YOU'RE WORRIED ABOUT TAKING

SIDES, YOU CAN SURE AS HECK LOOK AT THE IMPARTIAL. THE COURT: I'M NOT WORRIED ABOUT TAKING SIDES. I'M

WORRIED ABOUT TRYING TO FIGURE OUT WHAT -MS. TOMSIC: BUT WHAT I'M SAYING IS ANALYTICALLY IF

YOU'RE WORRIED ABOUT SAYING, GOSH, I DON'T WANT TO PICK WHAT ONE PERSON SAYS OVER THE OTHER, THIS PROVISION, THIS PORTION OF THE VOTER INFORMATION PAMPHLET SHOULD PUT THAT CONCERN TO REST. I DIDN'T MEAN IT IN A DEROGATORY MANNER, YOUR HONOR. THE COURT: MS. TOMSIC: YOU'RE NOT OFFENDING MY SENSIBILITIES. OKAY. THIS IS OUT OF THE IMPARTIAL AND I'VE TAKEN THE

SECTION OF THE VOTER INFORMATION PAMPHLET.

LIBERTY OF HIGHLIGHTING SOME OF THE WORDS THAT I THINK ABSOLUTELY DRIVE HOME THE FACT THAT ANIMUS IS THE BASIS OF THIS. AND WHILE THE LANGUAGE IS NOT AS COLORFUL AND TO MANY

PEOPLE OFFENSIVE AS THE FLOOR DEBATES, IT WILL DRIVE THE POINT HOME. AND I'M QUOTING. THE AMENDMENT, THAT'S THE AMENDMENT

WE'RE TALKING ABOUT, PROHIBITS ANY OTHER DOMESTIC UNION FROM BEING GIVEN THE SAME OR SUBSTANTIALLY EQUAL LEGAL EFFECT AS IS GIVEN TO A MARRIAGE BETWEEN A MAN AND A WOMAN. PRESENTLY WHEN

A MAN AND WOMAN MARRY, THEY RECEIVE CERTAIN RIGHTS, BENEFITS, AND OBLIGATIONS PROVIDED IN THE LAW. A MARRIED MAN AND WOMAN

RECEIVE THOSE RIGHTS, BENEFITS, AND OBLIGATIONS AUTOMATICALLY, BY OPERATION OF LAW AND SOLELY BY VIRTUE OF BEING MARRIED.

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THE AMENDMENT PROHIBITS A DOMESTIC UNION FROM BEING GIVEN THOSE SAME OR SIMILAR RIGHTS, BENEFITS, AND OBLIGATIONS. YOUR HONOR, I COULDN'T HAVE DRAFTED SOMETHING, OTHER THAN THE MORE COLORFUL LANGUAGE OUT OF THE FLOOR DEBATE, THAT DRIVES THIS POINT HOME. LOOK AT THE LANGUAGE THEY ARE TELLING YOU'RE

THE VOTERS ABOUT THE PURPOSE OF THIS AMENDMENT.

PROHIBITING A CLASS OF INDIVIDUALS FROM HAVING RELATIONSHIPS THAT HAVE EQUAL LEGAL EFFECT. OR SIMILAR LEGAL RIGHTS. AND WHEN YOU TALK ABOUT ANIMUS, I THINK I WANT TO MAKE SURE YOU AND I ARE ON THE SAME PAGE. WHEN THE SUPREME COURT THEY ARE PROHIBITING THE SAME

HAS LOOKED AT THE CONCEPT OF ANIMUS, IT IS ASKING THE QUESTION ARE YOU CLASSIFYING FOR CLASSIFICATION'S SAKE? THAT IS, ARE

YOU CREATING THIS DIVISION SOLELY TO PUT THIS CLASS IN A WORSE POSITION THAN THE COUNTERPARTS? AND IF YOU LOOK AT THIS

LANGUAGE, THERE IS NO QUESTION IN WHAT THEY CALL THE IMPARTIAL VIEW THAT IS EXACTLY WHAT THE VOTERS ARE BEING TOLD. THE COURT: THERE'S A LOT OF -MS. TOMSIC: THE COURT: I'M SORRY? ROBINSON. THERE'S A LOT OF DISCUSSION IT STANDS FOR THE SO WHAT DO WE MAKE OF ROBINSON THEN?

IN THE GOVERNMENT'S BRIEF ABOUT THIS.

PROPOSITION THAT THE STATE MAY CHOOSE TO SELECT A GROUP OF CITIZENS AND GIVE TO THAT GROUP CERTAIN ADDITIONAL BENEFITS OR RIGHTS OR PRIVILEGES. AND THE FACT THAT NOT EVERYBODY CAN

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PARTICIPATE DOESN'T MEAN THAT IT'S IMPROPER IN ANY WAY. MS. TOMSIC: THAT THE JOHNSON CASE? THE COURT: JOHNSON AND ROBINSON, RIGHT, ISN'T IT? I'VE BEEN CALLING IT ROBINSON. I JUST WANT TO MAKE SURE I'VE WELL, TWO ANSWERS TO THAT QUESTION. IS

IS JOHNSON THE FIRST NAME? MS. TOMSIC: GOT THE RIGHT CASE.

OKAY.

FIRST OF ALL, YOUR HONOR, THAT CASE WAS

BEFORE WINDSOR, SO I THINK YOU NEED TO TAKE THAT INTO ACCOUNT. BUT I THINK THE OTHER THING THAT IS EQUALLY IMPORTANT ABOUT THE ROBISON CASE IS THAT IN TERMS OF WHAT THE SUPREME COURT WAS LOOKING AT, YOU'LL REMEMBER THAT THE DRAFTED CONSCIENTIOUS OBJECTOR, WHO WAS THE PLAINTIFF, THEY MADE AN ARGUMENT TO THE -- TO THE COURT AND SAID, LOOK, THE WHOLE PURPOSE OF THIS IS A CLASSIFICATION FOR CLASSIFICATION SAKE, AND IT'S BECAUSE THEY'RE PREJUDICED AGAINST US BECAUSE WE'RE CONSCIENTIOUS OBJECTORS. AND THE SUPREME COURT LOOKED AT ALL THE EVIDENCE -- OR NOT THE SUPREME COURT -- YEAH, IT IS THE SUPREME COURT. LOOKED AT ALL THE EVIDENCE AND SAID, YOU KNOW WHAT, WE DON'T SEE THAT. YOU HAVEN'T SHOWN US ANYTHING THAT WOULD EVEN THEY'VE SHOWN US WHY THEY'RE MAKING THAT

BORDER ON THAT. DIFFERENTIATION.

BUT IF YOU READ THE LANGUAGE OF THAT DECISION, WHAT THE SUPREME COURT SAYS IS REALLY IMPORTANT, BECAUSE WHAT THE SUPREME COURT SAID WAS IF IN FACT THIS LAW IS BASED ON, AND

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THE PRINCIPLE PURPOSE OF THIS LAW IS TO EXCLUDE CONSCIENTIOUS OBJECTORS BECAUSE OF PREJUDICE, IT WOULD BE UNCONSTITUTIONAL. AND THAT HAS GOT TO FRAME ANY LANGUAGE THAT YOU LOOK AT IN A SUPREME COURT DECISION AND PARTICULARLY A PRE-WINDSOR SUPREME COURT DECISION. AND THE OTHER THING I WOULD SAY, YOUR HONOR, IS THERE IS NO DIFFERENCE BETWEEN SAME-SEX COUPLES AND OPPOSITE-SEX COUPLES, SO THERE'S NO REASON TO DIFFERENTIATE. SO I THINK ON

THREE BASES THE ROBISON CASE IS ABSOLUTELY IRRELEVANT AND NOT APPLICABLE. YOUR HONOR, JUST BECAUSE I LIKE DOING THIS, AND IT'S KIND OF FUN FOR ME, I WANT TO POINT OUT TO SOME OF THE THINGS THAT WERE IN THE PROPONENT PART OF THE VOTER INFORMATION PAMPHLET BECAUSE I THINK IT TOO COLORS WHAT THE VOTERS ARE BEING TOLD AS THE REASON THEY OUGHT TO VOTE FOR AMENDMENT 3. AND I JUST

WANT TO READ A COUPLE OF THEM BECAUSE IT IS AS GOOD AS THE FLOOR DEBATES. QUOTE: VOTE YES ON THIS AMENDMENT TO ENSURE THAT THAT'S

SAME-SEX MARRIAGE IS NOT ALLOWED IN UTAH. EXCLUSIONARY.

THAT'S CATEGORIZATION FOR THE SAKE OF

DIMINISHING THE CITIZENSHIP AND STANDING OF A CLASS FOR DISCRIMINATION SAKE. QUOTE: THAT IS ANIMUS, YOUR HONOR.

HERE IN UTAH LET US HEED THE WARNING OF LINCOLN

AND NOT ALLOW OTHERS TO BLOW OUT THE MORAL LIGHTS AROUND US, END QUOTE. YOUR HONOR, THAT'S WHAT THE VOTERS WERE READING

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WHEN THEY WENT INTO THOSE WHEREVER BOX OR -- AND CHECKED YES ON AMENDMENT 3. I MEAN SO WHAT I WOULD SAY TO YOUR HONOR, UNDER THE DIRECTIVE OF WINDSOR, UNDER THE DIRECTIVE OF ROMER YOU HAVE GOT TO LOOK AT THE FLOOR DEBATES, YOU'VE GOT TO LOOK AT THE PROPONENTS ARGUMENTS TO THE VOTERS, AND YOU SURE AS HECK NEED TO LOOK AT THE IMPARTIAL VIEW OF WHAT THIS LAW IS ABOUT. LET ME COME BACK TO WINDSOR IF I COULD. IN WINDSOR, YOUR

HONOR, IN DOING THIS ANALYSIS THAT IT SAID IS THE MANDATED ANALYSIS AS OF THE WINDSOR DECISION IN JUNE OF THIS YEAR, IT DETERMINED AFTER -THE COURT: ANALYSIS? WHAT DO YOU MEAN WITH THE MANDATED

WHERE DO YOU SEE THAT? MS. TOMSIC: WELL, LET ME PUT IT THIS WAY. I

SHOULDN'T SAY MANDATED, BUT THEY SURE AS HELL -- HECK STATED WHAT YOU DO. SORRY. THEY SURE AS HECK STATED --

CAN YOU PUT THAT BACK UP, 1.2. THE COURT: MS. TOMSIC: WELL, THEY -- GO AHEAD. THE DESIGN, PURPOSE AND EFFECT OF THE

LAWS SHOULD BE CONSIDERED AS THE BEGINNING POINT IN DECIDING WHETHER THEY ARE VALID UNDER THE CONSTITUTION. AND MAYBE YOU

DON'T READ THAT AS A DIRECTIVE, YOUR HONOR, BUT I READ IT A LITTLE HEAVIER THAN A SUGGESTION. JUST LIKE I READ THE RULES THEY'RE A RULE. AND

OF EVIDENCE, THEY'RE NOT A SUGGESTION.

IF YOU LOOK AT WHAT THE ROMER COURT -- AND I REALLY ENCOURAGE

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YOU TO LOOK AT ROMER.

IF YOU LOOK AT WHAT THE ROMER COURT

DID, THEY DID EXACTLY THIS ANALYSIS, PRECISELY THIS ANALYSIS. AND SO, YEAH, I THINK IT'S MANDATED. WHEN THEY WENT THROUGH THIS ANALYSIS, WHAT THEY DETERMINED IN TERMS OF THE DESIGN AND PURPOSE OF DOMA WAS THAT DOMA'S PRINCIPLE PURPOSE WAS TO IMPOSE INEQUALITY, NOT FOR OTHER REASONS. QUOTE: THE AVOWED PURPOSE AND PRACTICAL

EFFECT WAS TO IMPOSE A DISADVANTAGE, A SEPARATE STATUS AND SO A STIGMA UPON ALL WHO DESIRE TO ENTER INTO SAME-SEX MARRIAGE. AND SO, YOUR HONOR, WHEN THEY'RE -- THEY'RE NOT SAYING CONGRESS IS EVIL. THAT'S NOT WHAT WE'RE TALKING ABOUT HERE.

THEY'RE TALKING ABOUT THE PRINCIPLE PURPOSE FOR DIVIDING SAME-SEX COUPLES FROM OPPOSITE-SEX COUPLES, WHICH IS WHAT THE ENTIRE PURPOSE BEHIND AMENDMENT 3 WAS, AS WELL AS THE OTHER MARRIAGE DISCRIMINATION STATUTES. AND IF YOU GO ON TO READ THE LANGUAGE IN WINDSOR, AGAIN IT'S IMPORTANT IN TERMS OF WHAT AMENDMENT 3 DOES. THE COURT

SAID DOMA SINGLED OUT A CLASS OF PERSONS -- THAT WOULD BE THE SAME AS OUR PLAINTIFFS -- AND IMPOSED A DISABILITY ON THE CLASS. HERE. THERE CANNOT BE AN ARGUMENT A DISABILITY WAS IMPOSED THEY CAN'T MARRY, AND THEY DON'T GET ANY BENEFITS, AND

NOT ONLY THAT, THEY CAN'T ENTER INTO ANY OTHER LEGAL RELATIONSHIP THAT GIVES LEGAL STATUS OR BENEFITS. IT TOLD THOSE COUPLES AND ALL THE WORLD THAT THEIR RELATIONSHIPS ARE UNWORTHY OF RECOGNITION. BOY, YOUR HONOR,

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IT'S AS IF THEY WROTE THIS LANGUAGE FOR US, AND I THINK THEY DID, FRANKLY. IMPORTANTLY, AND I CAN'T EMPHASIZE THIS PART OF

WINDSOR ENOUGH, THE DIFFERENTIATION DEMEAN THE COUPLE WHOSE MORAL AND SEXUAL CHOICES THE CONSTITUTION PROTECTS. ANY CLEARER THAN THAT, YOUR HONOR. SO ACCORDINGLY -- AND IF YOU'LL PUT UP SLIDE 1.4 -- THE HOLDING IN WINDSOR, THE FEDERAL STATUTE IS INVALID, FOR NO LEGITIMATE PURPOSE OVERCOMES THE PURPOSE AND EFFECT TO DISPARAGE AND TO INJURE. AND I WANT TO LOOK AT UTAH'S MARRIAGE DISCRIMINATION LAWS, AND I THINK I'VE ALREADY GONE OVER THE PURPOSE AND DESIGN AND I'M NOT GOING TO TAKE ANYMORE OF THE COURT'S TIME ON THAT. BUT I WANT TO TALK ABOUT THE EFFECTS, AND I THINK I CAN'T BE

ALLUDED TO THEM EARLIER OF BEING MORE DRAMATICALLY PRONOUNCED BECAUSE THIS IS A STATE LAW THAT IMPACTS MY PLAINTIFFS' LIVES EVERY DAY. BUT LET'S LOOK AT THE LANGUAGE THAT THEY USE. PUT UP SLIDE 1.9. WHEN THEY ARE DESCRIBING THE EFFECT OF DOMA, IT INJURES, IT STIGMATIZES, IT DEMEANS, IT DEGRADES, PUTS THEM IN A SECOND-CLASS POSITION, A SECOND-TIER POSITION, UNWORTHY OF RECOGNITION, HUMILIATES TENS OF THOUSANDS OF CHILDREN NOW BEING RAISED BY SAME-SEX COUPLES, FINANCIALLY HARMS THESE CHILDREN BY DENYING FEDERAL BENEFITS. IT HAS A SUBSTANTIAL

SOCIETAL IMPACT IN THE DAILY LIVES AND CUSTOMS.

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YOUR HONOR, THAT IS THE HARM THAT HELPED TIP THE SCALE IN WINDSOR. AND, YOUR HONOR, IT IS UNCONTROVERTED THAT THAT IS A

LEGAL FINDING OF WHAT DENYING RECOGNITION OF SAME-SEX RELATIONSHIPS HAS ON THOSE PEOPLE, ON THEIR CHILDREN AND ON THE COMMUNITY. AND I WOULD SAY, YOUR HONOR, THERE IS NOT A

SCINTILLA OF EVIDENCE IN THE STATE'S BRIEF, THERE IS NOT A CASE THEY CITE THAT WOULD IN ANY WAY PERMIT THIS COURT TO WALK AWAY FROM FINDING THAT THAT INJURY IS IDENTICAL BUT AMPLIFIED IN TERMS OF UTAH'S MARRIAGE DISCRIMINATION LAWS. THE COURT: I CAN'T BE SURE, BUT I THINK MR. LOTT I DON'T THINK

WILL TELL ME THAT THAT'S THE WRONG FOCUS.

MR. LOTT WILL DENY THAT THERE'S HARM TO THESE PLAINTIFFS OR TO SAME-SEX COUPLES WHO WISH TO MARRY BUT CAN'T, BUT I THINK HE'LL DIRECT ME TO LAW THAT SAYS YOU DON'T LOOK AT THE HARM THAT FOLLOWS. YOU LOOK AT THE PURPOSE AND WHETHER THERE'S A

RATIONAL BASIS FOR THE STATE'S DECISION FOR THE LAW. WE HARM PEOPLE ALL THE TIME. THERE ARE -- RECENTLY IN

THE NEWS THERE WAS DISCUSSION, RIGHT, ABOUT MOMS WHO WOULD LIKE TO HAVE MARIJUANA TREATMENTS AVAILABLE FOR CHILDREN WHO ARE UNDERGOING CANCER THERAPY. BUT THAT THOSE CHILDREN SUFFER. THERE CAN'T BE ANY QUESTION THEIR PARENTS CAN'T PROVIDE

THE MARIJUANA THERAPY BECAUSE WE'VE DETERMINED IT'S GOING TO BE UNLAWFUL. WE DON'T LOOK AT THE HARMS THAT FOLLOW, DO WE?

WHAT PART OF THE COURT'S ANALYSIS FOCUSES ON THE HARMS? MS. TOMSIC: YOUR HONOR, WELL, I THINK YOU'VE GOT TO

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LOOK AT WINDSOR AGAIN.

I MEAN DO I THINK THE STATE WANTS TO

RUN AS FAR AWAY FROM WINDSOR AS THEY CAN? THE COURT: WINDSOR. THEY'RE EMBRACING THE OTHER PART OF

THERE'S PLENTY IN WINDSOR FOR BOTH SIDES. MS. TOMSIC: WELL, OTHER THAN THE EXPRESS LANGUAGE LET ME TALK ABOUT FEDERALISM BECAUSE I

OF THE SUPREME COURT.

KNOW YOU'RE TALKING ABOUT THAT, AND LET ME JUST TALK ABOUT IT BECAUSE REALLY WHAT THE STATE, WITH ALL DUE RESPECT, HAS DONE AND THEY HAVE TO DO IS SAY YOU KNOW WHAT, WINDSOR IS NOT ABOUT EQUALITY. IT'S NOT ABOUT EQUALITY OR DUE PROCESS. THE COURT: LET ME JUMP AHEAD JUST A LITTLE BIT. I UNDERSTAND WHY THE I

ON THIS POINT I THINK YOU'RE BOTH WRONG.

PLAINTIFFS ARE FOCUSED ON THE EQUAL PROTECTION ANALYSIS. UNDERSTAND WHY THE STATE IS FOCUSED ON THE FEDERALISM ANALYSIS. THE TRUTH IS THAT OPINION CONTAINS BOTH.

AND AT

LEAST AS BEST I CAN TELL, THERE'S NOT A CLEAR, DEFINITIVE STATEMENT FROM THE COURT ABOUT EXACTLY WHICH OF THOSE ELEMENTS THE DECISION IS TURNING ON. IN FACT THE PARAGRAPH THAT I THINK REALLY BRINGS IT TO FOCUS -- I THINK YOU JUST CITED FROM PART OF THAT PARAGRAPH, AND MR. LOTT MIGHT READ TO ME THE FIRST SENTENCE FROM THAT PARAGRAPH. THEY'RE -- THOSE TWO COMPETING AND UNRELATED LINES

OF JURISPRUDENCE SEEM TO COME TO A HEAD IN THAT DECISION, AND I DON'T SEE THAT THE COURT TOLD ME CLEARLY WHICH ONE GOVERNED. MS. TOMSIC: CAN I DISAGREE WITH YOU?

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THE COURT: MS. TOMSIC:

PLEASE.

I'M HERE TO LEARN.

WELL, I THINK YOU PROBABLY KNOW MORE

ABOUT THIS THAN I DO, BUT LET ME GIVE IT MY BEST SHOT AS TO WHY I THINK YOU'RE WRONG. IF YOU WOULD LOOK AT PAGE 2692 OF

THE DECISION, THE SUPREME COURT TELLS US, QUOTE, IT IS UNNECESSARY TO DECIDE WHETHER THIS FEDERAL INTRUSION ON STATE POWER IS A VIOLATION OF THE CONSTITUTION, END QUOTE. ON PAGE 2692, YOUR HONOR. THE COURT: SUPREME COURT OPINION. MS. TOMSIC: THE COURT: ONE MORE TIME. MS. TOMSIC: YOU BET. IT SAYS, QUOTE, IT IS YOU KNOW, I THINK I'M READING FROM THE DO YOU HAVE THE OTHER PAGINATION? I DO NOT. I APOLOGIZE, YOUR HONOR. WILL YOU READ THAT THAT'S

I'M WITH YOU NOW.

UNNECESSARY TO DECIDE WHETHER THIS FEDERAL INTRUSION ON STATE POWER IS A VIOLATION OF THE CONSTITUTION, END QUOTE. BUT THEN

THE COURT GOES ON TO STATE, QUOTE, THE STATE'S POWER IN DEFINING THE MARITAL RELATIONSHIP IS OF CENTRAL IMPORTANCE IN THIS CASE QUITE APART FROM PRINCIPLES OF FEDERALISM BECAUSE THE STATE'S DECISION TO GIVE THIS CLASS OF PERSONS THE RIGHT TO MARRY CONFERRED UPON THEM A DIGNITY AND STATUS OF IMMENSE IMPORT. THE COURT: BUT THAT'S EXACTLY IT. MR. LOTT WILL NEW YORK,

STAND UP AND TELL ME THAT WAS THE WHOLE POINT.

EXERCISING ITS SOVEREIGN POWER AND AUTHORITY, MADE A

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DETERMINATION TO GRANT THAT RIGHT. IN. THERE WAS A PUBLIC DEBATE.

THE CITIZENS THERE WEIGHED

IT WAS THE LEGISLATIVE AND

DEMOCRATIC PROCESS.

THEY GRANTED THAT, AND NOW THE CONGRESS

SEEKS TO TAKE THAT AWAY FROM THE STATE. MS. TOMSIC: WELL, YOUR HONOR, IF YOU WERE RIGHT AND

MR. LOTT WERE RIGHT, THE SUPREME COURT WOULD HAVE FOUND THIS UNCONSTITUTIONAL UNDER THE TENTH AMENDMENT, AND IT DIDN'T DO THAT. AND IF YOU GO ON IN THIS DECISION AND YOU LOOK AT PAGES

2691 TO 92, IT SAYS, NOT ONCE BUT TWICE, OH, YES, THE STATE HAS SOVEREIGN AUTHORITY OVER DOMESTIC RELATIONSHIPS, BUT GUESS WHAT, IT'S, QUOTE, SUBJECT TO CONSTITUTIONAL GUARANTEES, END QUOTE, AND QUOTE, OF COURSE MUST RESPECT THE CONSTITUTIONAL RIGHTS OF PERSONS, END QUOTE. AND NOT ONLY THAT, YOUR HONOR, IT'S NO BIG NEWS. IF YOU

LOOK AT ACTUAL CASES WHERE THE ISSUE IS CAN THE STATE REGULATE MARRIAGE WITHIN ITS BOUNDARIES REGARDLESS OF THE VIOLATION OF THE CONSTITUTION, THE ANSWER IS NO. THE MOST OBVIOUS CASE. LOOK AT LOVING. THAT'S THOSE ARE

AND THEN LOOK AT ZABLOCKI.

ALL STATE LAWS WHERE THE STATE HAS MADE A DECISION ABOUT MARRIAGE, AND THE SUPREME COURT SAID YOU KNOW WHAT, YOU CAN'T DO THAT. BUT LET ME TELL YOU SOMETHING ELSE ABOUT WINDSOR. A ROLL HERE. I'M ON

IF YOU LOOK AT 2692 TO 93, THEY TELL YOU WHAT IT SAYS, QUOTE, DOMA RESULTS IN INJURY AND

THEIR HOLDING IS.

INDIGNITY THAT IS A DEPRIVATION OF AN ESSENTIAL PART OF THE

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LIBERTY PROTECTED BY THE FIFTH AMENDMENT. PROCESS AND EQUAL PROTECTION PRINCIPLES.

DOMA VIOLATES DUE DOMA IS

UNCONSTITUTIONAL AS A DEPRIVATION OF THE LIBERTY OF THE PERSON PROTECTED BY THE FIFTH AMENDMENT OF THE CONSTITUTION. THE

LIBERTY PROTECTED BY THE FIFTH AMENDMENT'S DUE PROCESS CLAUSE CONTAINS WITHIN IT PROHIBITION AGAINST DENYING TO ANY PERSON THE EQUAL PROTECTION OF THE LAWS. THERE IS NOT A STATEMENT IN THE WINDSOR DECISION THAT TELLS YOU IT IS FINDING ON THE TENTH AMENDMENT, THAT TELLS YOU THAT EVEN THOUGH IN THE HISTORY OF THE JURISPRUDENCE OF THE SUPREME COURT IT'S NEVER LET A STATE OR ANY OTHER GOVERNMENT VIOLATE EQUAL PROTECTION AND DUE PROCESS RIGHTS, THAT SUDDENLY THAT'S OKAY, BUT IN THIS CASE THE STATE DIDN'T DO IT. NOT WHAT IT SAYS. AND I WOULD ASK MR. LOTT TO SHOW ME WHERE THE SUPREME COURT IN WINDSOR SAYS WE ARE HOLDING THIS UNCONSTITUTIONAL BECAUSE THE STATE HAS A RIGHT TO GOVERN THIS AND THE FEDERAL GOVERNMENT OUGHT TO STAY OUT OF IT. AND YOU KNOW, YOUR HONOR, THAT'S

AND WE'VE QUOTED THIS IN OUR BRIEF, JUSTICE SCALIA -- AND YOU KNOW AND I KNOW AND EVERYBODY IN THIS COURTROOM KNOWS HE IS NO FRIEND OF SAME-SEX MARRIAGE. THE COURT: TALKING ABOUT. MS. TOMSIC: WELL, YOU'VE READ HIS OPINIONS. I'M I'M SURE I DON'T KNOW WHAT YOU'RE

NOT SAYING WHETHER YOU AGREE OR DISAGREE.

BUT HE'S CRYSTAL

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CLEAR.

HE'S CRYSTAL CLEAR.

AND THE ONLY PEOPLE -- PERSON ON

WHOM ARE THE ONLY EVIDENCE, BESIDES THESE STATEMENTS THAT THE SUPREME COURT HAS DISAVOWED, IS ROBERTS, CHIEF JUSTICE ROBERTS. BUT YOU KNOW WHAT? IT'S CONTRARY TO THE ACTUAL

LANGUAGE IN THE MAJORITY.

AND I'LL TELL YOU, IF ANYBODY WAS

GOING TO TRY TO DEFEND THAT CASE ON FEDERALISM GROUNDS, JUSTICE SCALIA SURE AS HECK WOULD HAVE DONE IT TO PREVENT PEOPLE LIKE ME FROM USING WINDSOR THE WAY IT NEEDS TO BE USED AND FOR THE FOUNDATION OF THE DECISION WE'RE HOPING YOU'LL WRITE IN THIS CASE IN OUR FAVOR. I WANT TO TALK ABOUT THE DIFFERENCE BETWEEN NEW YORK LAW AND UTAH LAW BECAUSE NEW YORK LAW WAS AT ISSUE IN WINDSOR. THE DIFFERENCE, YOUR HONOR, AND THE IMPORT OF THE LANGUAGE OF THE SUPREME COURT IN WINDSOR WITH REGARD TO NEW YORK, THEY USE WORDS LIKE EQUALITY. THE STATE IS GRANTING EQUALITY. THEY'RE

RECOGNIZING UNDER THE TRADITION OF MARRIAGE THAT IT NEEDS TO MOVE FORWARD AND EMBRACE THESE PRINCIPLES. THE COURT DIDN'T STRIKE DOWN THE NEW YORK LAW OR ALLOW DOMA TO OVERRIDE IT BECAUSE THAT STATE LAW WAS CONSISTENT WITH THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION. IT DID WHAT UTAH DEPRIVES THESE CITIZENS OF. IT IS A

DIFFERENT CONTEXT, A TOTALLY DIFFERENT CONTEXT. AND ONE OF THE REASONS THAT'S IMPORTANT, YOUR HONOR, IS UNLIKE THE PLAINTIFFS IN THE NEW YORK CASE, THE CHILDREN IN THIS STATE -- AND WE'VE PUT IN THE EVIDENCE SHOWING THAT THERE

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ARE APPROXIMATELY 3,000 KIDS BEING RAISED BY SAME-SEX COUPLES -- DON'T HAVE THE SAME STABILITY AND DIGNITY THAT CHILDREN OF SAME-SEX COUPLES HAD IN NEW YORK. IN NEW YORK

THEIR PARENTS' SAME-SEX RELATIONSHIP WAS SANCTIFIED AND RECOGNIZED BY THE STATE SO THOSE CHILDREN KNEW THEIR FAMILIES HAD EQUAL DIGNITY AND STATUS WITH HETEROSEXUAL MARRIED COUPLES' CHILDREN. HERE THE OPPOSITE IS TRUE. THESE KIDS EVERY DAY OF THEIR

LIVES ARE FACING A SOCIAL STIGMA HAVING TO EXPLAIN WHY THEY HAVE TWO MOMS AND TWO DADS AND WHY THEY DON'T HAVE ANY PROTECTION UNDER THE LAW. THE HARM IS IMMENSE IN THIS STATE AND I'LL TELL YOU, THE

IN TERMS OF THE HARM TO CHILDREN.

SUPREME COURT SURE GOT THE KIDS' INTERESTS ARE REALLY IMPORTANT. YOUR HONOR, THE OTHER THING I WANT TO SAY ABOUT THE SUPREME COURT DECISION, AND THEN I'LL MOVE ON BECAUSE I THINK WE'VE GRAPPLED ON THIS ONE, IS THE SUPREME COURT ITSELF, DESPITE SOME LANGUAGE THAT THEY THREW OUT THERE THAT MR. LOTT IS GOING TO GLOM ONTO, IT TOO BROUGHT THE FOURTEENTH AMENDMENT INTO THE CASE ITSELF. AND, JENNIFER, IF YOU WOULD PUT UP 1.8. IT DID IT IN TWO WAYS. AND THIS IS THEIR LANGUAGE.

WHILE THE FIFTH AMENDMENT ITSELF WITHDRAWS FROM GOVERNMENT THE POWER TO DEGRADE OR DEMEAN IN THE WAY THIS LAW DOES, THE EQUAL PROTECTION GUARANTEE OF THE FOURTEENTH AMENDMENT MAKES THE

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FIFTH AMENDMENT RIGHT ALL THE MORE SPECIFIC AND ALL THE BETTER UNDERSTOOD AND PRESERVED. YOUR HONOR, I WOULD SUBMIT TO YOU IF A FEDERAL LAW DEGRADING AND DEMEANING SAME-SEX COUPLES CANNOT PASS MUSTER UNDER THE FIFTH AMENDMENT, THE SUPREME COURT HAS MADE IT CLEAR IT SURE AS HECK ISN'T GOING TO PASS MUSTER UNDER THE FOURTEENTH AMENDMENT. AND THE OTHER POINT I'D MAKE, AND THIS IS THE OLD ROMER POINT AGAIN, IS THE SUPREME COURT USES THE WORDS CAREFUL CONSIDERATION TWICE IN ITS DECISION, AND THE CASE IT CITES FOR THAT IS ROMER. ROMER IS NOT ONLY A FOURTEENTH AMENDMENT CASE,

IT IS A FOURTEENTH AMENDMENT CASE WHERE THE UNITED STATES SUPREME COURT DECLARED UNCONSTITUTIONAL AN AMENDMENT TO A STATE CONSTITUTION THAT DISCRIMINATED AGAINST LESBIAN AND GAY INDIVIDUALS. SO THEY'RE RECOGNIZING WHAT THE STRUCTURE SHOULD BE, THAT IT IS THAT KIND OF INJURY AND HARM THAT UNDER THE FOURTEENTH AMENDMENT MAKES IT AS UNCONSTITUTIONAL AS THE FEDERAL GOVERNMENT'S DOMA ACT TO ACCOMPLISH THE SAME PURPOSE WHICH CAUSED THE SAME HARM. AND ONE LAST POINT WHICH I'VE ALREADY DEALT WITH, WHICH IS JUSTICE SCALIA. AND I JUST WANT TO QUOTE HIM BECAUSE I AND HE STATES

VERY SELDOM GET A CHANCE TO DO THAT IN MY WORK. AT PAGE 2709 QUOTE:

IT IS MY VIEW, THE VIEW THAT THIS COURT

WILL TAKE OF STATE PROHIBITION OF SAME-SEX MARRIAGE IS

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INDICATED BEYOND MISTAKING BY TODAY'S OPINION.

THE REAL

RATIONALE OF TODAY'S OPINION IS THAT DOMA IS MOTIVATED BY, QUOTE, BARE DESIRE TO HARM, END QUOTE, COUPLES IN SAME-SEX MARRIAGES. HOW EASY IT IS, INDEED HOW INEVITABLE, TO REACH

THE SAME CONCLUSION WITH REGARD TO STATE LAWS DENYING SAME-SEX COUPLES MARITAL STATUS. ONE SHOULD BE FOOLED. AS FAR AS THIS COURT IS CONCERNED, NO IT IS A MATTER -- IT IS JUST A MATTER

OF LISTENING AND WAITING FOR THE OTHER SHOE, END QUOTE. YOUR HONOR, THIS CASE IS THE OTHER SHOE. I WOULD END MY

WINDSOR BY SAYING, YOUR HONOR, THAT IS THE SUPREME COURT PRECEDENT. THAT IS THE DETERMINING ANALYSIS AND OUTCOME THAT

THIS COURT MUST REACH. AND I JUST WANT TO QUICKLY HOP OVER, BECAUSE YOU HAVE BEEN MORE THAN KIND IN THE AMOUNT OF TIME YOU'VE GIVEN ME -THE COURT: WELL, THIS IS AN IMPORTANT SUBJECT.

LET'S HEAR WHAT YOU HAVE TO SAY. MS. TOMSIC: OKAY. IF YOU DETERMINE CONTRARY TO OUR

POSITION THAT WINDSOR IS NOT THE BEGINNING AND ENDING OF THIS ANALYSIS AND UNDER WINDSOR THIS COURT IS BOUND TO DETERMINE UTAH'S MARRIAGE DISCRIMINATION LAWS ARE UNCONSTITUTIONAL, THEY ARE STILL UNCONSTITUTIONAL NO MATTER WHAT LEVEL OF SCRUTINY YOU GIVE THEM. AND WE ARGUED LONG AND HARD IN OUR -- I'M NOT GOING TO CALL THEM BRIEFS BECAUSE THAT'S INACCURATE -- THAT IN FACT HEIGHTENED SCRUTINY APPLIES IN THIS CASE FOR TWO REASONS.

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ONE, THAT THE CLASSIFICATION OF SEXUAL ORIENTATION AND GENDER ARE BOTH QUASI-SUSPECT CLASSES. THE COURT: ARE THEY? THEY'RE NOT IN THE TENTH CIRCUIT THOUGH,

AND I'M BOUND BY THAT. MS. TOMSIC: YOU KNOW, YOUR HONOR, I'M GLAD YOU I WAS GOING TO DO

BROUGHT THAT UP BECAUSE I DIDN'T WANT TO. IT IN REBUTTAL, BUT I'LL TO IT NOW. THE COURT: MS. TOMSIC:

I'M BOUND TO FOLLOW THE TENTH CIRCUIT. I DON'T DISAGREE, YOUR HONOR. BUT I'LL

TELL YOU, THE PRICE -- AND I'M NOT GOING TO SLAUGHTER THE SECOND NAME BECAUSE I'M REALLY BAD WITH NAMES, AS JENNIFER TELLS ME CONTINUALLY, JUST DON'T SAY IT BECAUSE YOU'LL SAY IT WRONG. THE PRICE -THE COURT: MS. TOMSIC: SHALL WE CALL IT BROOKS? YEAH, EXACTLY. IN THAT CASE, YOUR

HONOR -- AND THERE'S NO QUESTION IF I WERE ON THE STATE'S SIDE I WOULD HAVE GRABBED THAT LANGUAGE AND RUN WITH IT. BUT, YOUR

HONOR, WHEN YOU ARE INTELLECTUALLY HONEST IN READING CASES, YOU HAVE TO SIFT THROUGH THE WHEAT; RIGHT? AND WHAT YOU HAVE AND WHAT

TO SAY IS WHAT WAS THE REAL ISSUE BEFORE THAT COURT? WAS THE SQUARE HOLDING OF THAT CASE?

AND WHAT WAS DICTA?

AND, YOUR HONOR, BASED ON PRICE'S OWN LANGUAGE, THE ISSUE OF WHETHER SEXUAL ORIENTATION WAS A SUSPECT CLASS WAS NOT BEFORE THE COURT. THE TENTH CIRCUIT EXPRESSLY STATED THAT

THAT ISSUE, WHILE IT HAD BROUGHT -- BEEN BROUGHT UP AT THE

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TRIAL COURT LEVEL, WAS NOT RAISED ON APPEAL.

AND THERE IS A

PLETHORA OF TENTH CIRCUIT AUTHORITY THAT SAYS WHEN YOU ARE DETERMINING WHETHER A CASE IS PRECEDENTIAL, IT ACTUALLY HAS TO DECIDE THE ISSUE THAT YOU'RE APPLYING IT FOR. CASE DOES PRICE HAVE THAT LANGUAGE? YES. AND IN THIS

BUT THE BEST YOU AND

CAN DO FOR THAT IS CALL IT WHAT IT IS, WHICH IS DICTA.

THIS COURT IS NOT BOUND BY DICTA IN DETERMINING THE LEVEL OF SCRUTINY APPLIES. AND THE OTHER THING THAT'S IMPORTANT IS IF YOU LOOK AT THE TENTH CIRCUIT CASE IT CITES IN THE FOOTNOTE TO SUPPORT THAT DICTA, THAT CASE WAS DECIDED I THINK YEARS BEFORE LAWRENCE, WAS DECIDED BEFORE WINDSOR. ABSOLUTELY NOT RELEVANT. SO I'D SAY IT IS

IT IS ABSOLUTELY NOT PRECEDENTIAL AND I IN ALL CANDOR FROM AN

FOR PURPOSES OF THIS ISSUE.

INTELLECTUALLY HONEST READING OF THAT CASE, IT CANNOT BE USED FOR THIS COURT TO FORECLOSE FINDING SEXUAL ORIENTATION AS A QUASI-SUSPECT CLASSIFICATION. THE COURT: I UNDERSTAND YOUR ARGUMENT ABOUT THAT,

AND WE HAD THE BENEFIT OF AN ADDITIONAL AMICUS BRIEF THAT I THINK VERY CLEARLY SET FORTH THE ARGUMENT. BUT YOU WERE

SETTING FORTH A SECOND ADDITIONAL REASON FOR HEIGHTENED SCRUTINY HERE AND WHY DON'T WE FOCUS ON THAT. MS. TOMSIC: THE COURT: THE SEXUAL -- I MEAN THE GENDER? WELL, I THOUGHT YOU WERE ABOUT -- I WAS

ANTICIPATING YOU WERE TRANSITIONING TO DUE PROCESS.

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MS. TOMSIC:

ACTUALLY, YOUR HONOR, I'LL TELL YOU

I'M NOT GOING TO COVER DUE PROCESS BECAUSE, I'LL TELL

YOU, I REREAD ALL THESE BRIEFS, AND IT WAS A MOMENTOUS TASK, AND I DID NOT ENVY YOU IN ANY RESPECT. BUT I THINK THERE'S

REALLY NOT A HECK OF A LOT I CAN ADD TO WHAT WE STATED IN THERE. THE COURT: MS. TOMSIC: DOESN'T THAT -THE FUNDAMENTAL ARGUMENT, IF I CAN JUST

QUICKLY SUMMARIZE WHAT THE ARGUMENT IS AND THEN ANSWER YOUR QUESTION, YOUR HONOR. I DIDN'T MEAN TO INTERRUPT YOU. BUT

THERE IS NO QUESTION THAT THE UNITED STATES SUPREME COURT FOR OVER 80 YEARS HAS FOUND THAT THE DUE PROCESS GUARANTEE OF THE FOURTEENTH AMENDMENT INCLUDES AS A FUNDAMENTAL RIGHT, INCLUDES AS A PRIVACY RIGHT, THE RIGHT TO MARRY. AND, YOUR HONOR, WHAT I WANT TO SAY ABOUT THAT, IF I CAN SAY A COUPLE THINGS SINCE WE'RE GOING THERE, IS IF YOU LOOK AT THE FOUNDATION AND THE ANALYSIS THAT IS USED IN DECISION AFTER DECISION BY THE UNITED STATES SUPREME COURT AS TO WHY THE RIGHT TO MARRIAGE IS A FUNDAMENTAL RIGHT, IT IS BECAUSE THAT RIGHT IMPACTS AN INDIVIDUAL'S LIFE IN EVERY CONCEIVABLE WAY, IN TERMS OF THEIR FUTURE, IN TERMS OF HOW THEY LIVE THEIR LIFE, IN TERMS OF WITH WHOM THEY SHARE THEIR LIFE AND MAKE DECISIONS. THERE CANNOT BE A DECISION ANYMORE PERSONAL, OTHER

THAN DECIDING TO HAVE A CHILD, WHICH IS ALSO A PROTECTED RIGHT, THAN MAKING A DECISION ABOUT MARRIAGE.

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BUT IT'S NOT JUST MARRIAGE IN SOME VACUUM, AND IT'S NOT MARRIAGE IN SOME VACUUM FOR TWO FUNDAMENTAL REASONS. IF YOU

READ THE ACTUAL LANGUAGE OF THE SUPREME COURT, WHICH WE HAVE QUOTED, AND I'LL SAY IT MYSELF AD NAUSEAM IN OUR PORTION OF THE BRIEF, THE SUPREME COURT HAS NOT SAID IT IS JUST THE RIGHT TO GET MARRIED. THEY TALK ABOUT IT AS BEING CHOICES AND

DECISIONS RELATING TO MARRIAGE. WELL, YOUR HONOR, THE RIGHT TO GET MARRIED WOULD BE A VERY HOLLOW RIGHT IF IT DID NOT INCLUDE THE RIGHT TO DETERMINE, TO CHOOSE, TO MAKE THE DECISION ABOUT WHO YOU'RE GOING TO MARRY. I MEAN IT'S GREAT TO HAVE A MARRIAGE RIGHT,

BUT IF YOU CAN'T MARRY WHO YOU WANT TO MARRY, WHAT VALUE DOES THAT FUNDAMENTAL RIGHT OR PRIVACY INTEREST HAVE? A HOLLOW RIGHT SITTING OUT THERE. BUT I CAN'T USE IT. NONE. IT IS

WELL, GREAT, I'VE GOT IT

IT MAKES NO SENSE AND IT'S CONTRARY TO

THE LANGUAGE THE SUPREME COURT USES, AND IT IS CONTRARY TO THE FUNDAMENTAL UNDERPINNINGS AS TO WHY THE SUPREME COURT FOUND THAT WAS WITHIN THE AMBIT OF THE DUE PROCESS CLAUSE. AND THE OTHER THING I WOULD SAY, YOUR HONOR, IF YOU LOOK AT LAWRENCE AND YOU LOOK AT THE LANGUAGE OF LAWRENCE, WHEN THEY ARE IDENTIFYING THAT SAME -- OR NOT SAME-SEX COUPLES -LESBIANS AND GAY MEN HAVE A CONSTITUTIONAL RIGHT TO MAKE THEIR DECISIONS, THEY QUOTE IN MAKING THAT POINT THAT ONE OF THE FUNDAMENTAL RIGHTS THEY HAVE A RIGHT ABOUT IS THE RIGHT OF MARRIAGE. THEY SAY ALL THESE FUNDAMENTAL RIGHTS APPLY TO

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LESBIANS AND GAY MEN JUST LIKE THEY DO THE OPPOSITE SEX. SO GO AHEAD, YOUR HONOR. THE COURT: MS. TOMSIC: I THINK YOU ANSWERED MY QUESTION. OKAY. LET ME MOVE IF I COULD -- YOU

KNOW, I WANT TO COME BACK TO THIS JUST BECAUSE I THINK IT DEMONSTRATES SOMETHING ON SEXUAL ORIENTATION. IN THE STATE'S

OPPOSITION BRIEF TO OUR MOTION FOR SUMMARY JUDGMENT THEY ATTACK THE FOUR CRITERIA THAT THE SUPREME COURT USES TO -THE COURT: MS. TOMSIC: GLUCKSBERG. THE GLUCKSBERG? EXACTLY. BUT I DON'T WANT TO GO TO

WHAT I WANT TO DO IS I WANT TO LOOK AT WHY THEY

SAY THE TWO -- THE ONLY TWO ESSENTIAL FACTORS AREN'T MET HERE. WELL, ACTUALLY THEY SAY ONE IS. FACTORS. THERE ARE ONLY TWO ESSENTIAL

THE OTHER TWO ARE REALLY DISCRETIONARY AND HELP IF

YOU HAVE THEM. BUT ONE OF THE FIRST ONES THAT THEY TALK ABOUT ARE THE SAME-SEX ORIENTATION HAS NO RELATION TO THE ABILITY TO PERFORM OR CONTRIBUTE TO SOCIETY. CRITERIA. THAT'S THE NUMBER TWO CRITICAL

WELL, WHAT THE STATE DOESN'T DO -- THEY ATTACK AND THAT'S

EVERYTHING ELSE, BUT THEY DON'T ATTACK THAT. IMPORTANT FOR TWO REASONS.

NUMBER ONE, IT MEANS THAT THEY

DON'T DISAGREE THAT CRITICAL FACTOR IS MET, ONE OF TWO, CRITICAL FACTOR. BUT EQUALLY AS IMPORTANT, WHAT IT

DEMONSTRATES BY NOT ADDRESSING OR CONTROVERTING IT IS THE STATE'S ADMISSION THEY DO NOT HAVE A LEGITIMATE STATE INTEREST

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IN DIFFERENTIATING BETWEEN THESE CLASSES OF PEOPLE, BECAUSE IF LESBIANS AND GAY PEOPLE CONTRIBUTE AND ARE THE SAME, THERE IS NO BASIS FOR DISCRIMINATION BASED ON SEXUAL ORIENTATION. THE SECOND POINT, AND I'LL JUST DO IT REALLY QUICKLY, THE ONLY OTHER ESSENTIAL FACTOR IS A HISTORY OF DISCRIMINATION. AND, YOUR HONOR, FRANKLY I WAS SHOCKED THAT THEY ATTACKED THIS. I MEAN THEIR ARGUMENT IS, GOSH, DISCRIMINATION HAS BEEN WELL, YOU KNOW WHAT, NO REASONABLE PERSON

TOO SHORT-LIVED.

VIEWING THE HISTORY IN THE UNITED STATES OF WHAT LESBIAN AND GAY PEOPLE HAVE FACED WOULD BELIEVE THAT. I MEAN IT'S NOT

ONLY CONTRARY TO HISTORY, IT'S CONTRARY TO REALITY, AND IT TAINTS THIS STATE'S ENTIRE ARGUMENT ABOUT THE LEGITIMACY OF DISCRIMINATION. THEY DON'T GET IT. THEY DON'T EVEN THINK

THEY'RE DOING ANYTHING WRONG BECAUSE, GOSH, IT'S BEEN SHORT-LIVED. WELL, LET THEM WALK IN THEIR BOOTS.

LET ME TURN TO RATIONAL BASIS SCRUTINY BECAUSE I KNOW YOU'RE INTERESTED IN THIS BURDEN. YOUR HONOR, RATIONAL BASIS

DOES NOT APPLY, AT LEAST THE ONE THEY'RE ASKING YOU TO APPLY. AND THEY CANNOT -- THEY CANNOT RECONCILE THEIR POSITION AND THEIR ANALYSIS AND THEIR ARGUMENT AS TO WHAT NEEDS TO BE PROVED UNDER RATIONAL BASIS WITH THE ROMER DECISION, LET ALONE WINDSOR. BUT ROMER IS A FOURTEENTH AMENDMENT CONSTITUTIONAL, STATE CONSTITUTIONAL, ISSUE. AND THAT COURT, WHICH IS A MORE RECENT

AUTHORITY THAN THE 1993 CASES THEY CITE, DOES NOT JUST SIMPLY

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THROW IT UP IN THE AIR AND SAY, GOSH, IF SOMETHING'S OUT THERE, THAT'S GOOD ENOUGH. THAT'S NOT THE ANALYSIS. BUT EVEN

IF YOUR HONOR DETERMINED THAT THERE WAS A RATIONAL BASIS ANALYSIS THAT APPLIED AND PLAINTIFFS HAVE THE BURDEN, WE HAVE MET THAT BURDEN. AND I'LL TELL YOU WHY, YOUR HONOR. THE FIRST STEP IN

THAT ANALYSIS IS YOU'VE GOT TO LOOK AT THE -- THE QUESTION IS DO THE LEGISLATIVE CLASSIFICATIONS IMPLICATE LEGITIMATE GOALS, THAT IS, BY CLASSIFYING THESE TWO SEPARATE GROUPS BASED ON SEXUAL ORIENTATION? LEGITIMATE GOAL? DOES THAT CLASSIFICATION IMPLICATE A AND THE SECOND

SO THAT'S THE FIRST THING.

THING YOU HAVE TO DO IS LOOK AT WAS THE MEANS CHOSEN, THAT IS, EXCLUDING SAME SEX COUPLES OUT OF THE RIGHT TO MARRY, DOES IT BEAR A RATIONAL RELATIONSHIP TO THOSE GOALS? SO THIS IS NOT A TOOTHLESS TIGER. YOU'VE GOT TWO REAL AND

SUBSTANTIVE REQUIREMENTS THAT APPLY TO RATIONAL BASIS.

WHEN YOU'RE LOOKING AT WHETHER THAT CLASSIFICATION IMPLICATES LEGITIMATE GOALS, AGAIN, I THINK YOU'VE GOT TO LOOK AT WHAT DOES THE LANGUAGE OF THE STATUTE SAY, BECAUSE UNDER STATUTORY CONSTRUCTION, FIRST PLACE YOU LOOK IS THE LANGUAGE OF THE STATUTE. AND THE LANGUAGE OF THE STATUTE IS SIMPLY

EXCLUSIONARY CATEGORIZATION FOR THE SAKE OF CATEGORIZATION. THERE'S NOTHING IN THERE DEMONSTRATING THAT IT IS FURTHERING ANY OTHER STATE INTEREST OTHER THAN SEPARATING THE CLASSES. BUT EVEN IF YOU DON'T STOP THERE, I KNOW YOU DON'T LIKE

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THE -- I SHOULDN'T SAY I KNOW YOU DON'T, BUT THE FLOOR DEBATES AND THE VOTER INFORMATION PAMPHLET MAKE IT CLEAR THAT THE CATEGORIZATION WASN'T FOR ANY OF THESE PURPOSES THAT THE STATE HAS ADVANCED. BUT EVEN IF YOU OVERLOOK ALL OF THAT AND YOU

SAY, WELL, GOSH, THESE STATE INTERESTS LOOK PRETTY GOOD TO ME, IT STILL DOESN'T MATTER, YOUR HONOR, BECAUSE PLAINTIFFS HAVE DEMONSTRATED, NOT JUST BY ARGUMENT, BUT BY EMPIRICAL DATA AND BY EXPERT OPINION TESTIMONY THAT THERE IS ABSOLUTELY NO CONNECTION BETWEEN THE EXCLUSION OF THE CLASS OF SAME-SEX COUPLES AND ACCOMPLISHING THAT GOAL. IF THERE'S NO

CONNECTION, THERE CAN'T BE A RATIONAL RELATIONSHIP. AND SO WHAT I WOULD SAY TO YOUR HONOR IS EVEN IF YOU GO, TOMSIC, YOU'RE UP IN THE NIGHT ABOUT THIS STATE INTEREST THING, IT DOESN'T MATTER BECAUSE THE SECOND ELEMENT WE HAVE MET IN SPADES. INTERESTS. AND, YOUR HONOR, WE HAVE IN OUR REPLY TO THEIR MOTION FOR SUMMARY JUDGMENT GONE THROUGH AND DEMONSTRATED BOTH OF THOSE POINTS RELATIVE TO THE SIX INTERESTS THAT THE STATE HAVE PUT OUT THERE. AND I'M NOT GOING TO BELABOR THEM, BUT I DO WANT THERE IS NO RELATIONSHIP BETWEEN THOSE

TO LOOK AT TWO OF THEM BECAUSE I THINK JUST LOOKING AT THOSE TWO WILL BRING HOME THE POINTS I'M MAKING AS TO WHY EVEN UNDER RATIONAL BASIS REVIEW, IF YOU GET TO THAT POINT, IT'S NOT GOING TO MATTER. AND WHAT I WANT TO LOOK AT IS FIRST OF ALL THEIR CLAIM

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THAT AMENDMENT 3 WAS ENACTED TO PROMOTE OPPOSITE-SEX MARRIAGE SO THAT YOU HAVE OPPOSITE-SEX COUPLES HAVING CHILDREN IN WEDLOCK AND RAISING THEM IN THAT ENVIRONMENT. WELL, YOUR HONOR, JUST GETTING TO THE SECOND LEVEL -FORGETTING ABOUT THE FIRST LEVEL. I JUST FOR PURPOSES OF

ARGUMENT, ALTHOUGH WE'VE CONTESTED IT IN OUR PAPERS AND I'LL STAY WITH IT, I JUST WANT TO LOOK AT THE RATIONAL CONNECTION, BECAUSE IF WE HAVE DEMONSTRATED THERE IS NO RATIONAL CONNECTION BETWEEN THE EXCLUSION OF SAME-SEX COUPLES AND PROMOTING HETEROSEXUAL MARRIAGE, IT DOESN'T MATTER WHETHER THE INTEREST IS REAL OR THE LAW WAS INTENDED TO FURTHER IT. WE DON'T DISPUTE THAT THERE ARE BENEFITS OF MARRIAGE TO OPPOSITE-SEX COUPLES, THEIR CHILDREN OR SOCIETY. PLAINTIFFS WANT THOSE SAME RIGHTS AND BENEFITS. THE HOWEVER,

EXCLUDING SAME-SEX COUPLES FROM MARRIAGE DOESN'T DO ANYTHING TO FURTHER THAT INTEREST. AND I THINK IF YOU LOOK AT THE STATE'S PAPERS, THERE IS NOTHING IN THERE ON WHICH THIS COURT COULD FIND THAT RATIONAL BASIS EXISTS. THE PLAINTIFFS HAVE ABSOLUTELY DEMONSTRATED AND LET ME JUST TALK ABOUT TWO

THAT THERE IS NO RELATIONSHIP.

OF THE PIECES OF UNCONTROVERTED EVIDENCE IN THE RECORD THAT DEMONSTRATE THAT. WE HAVE PUT IN THE STATISTICAL EVIDENCE THAT DEMONSTRATES THAT HAVING THE PROHIBITION OF SAME-SEX MARRIAGE HAS DONE NOTHING WITH THE MARRIAGE RATES OR THE DIVORCE RATES, WHICH

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ARE MAJOR INDICATORS OF HOW MARRIAGE IS DOING.

AND WHAT WE

SHOWED YOU, YOUR HONOR, IS THAT, FIRST OF ALL, AT THE TIME THAT THESE STATUTES WERE PUT IN EFFECT, OPPOSITE-SEX COUPLES HAD THE RIGHT TO MARRY, AND THEY HAD THE RIGHT TO MARRY AFTER THEM. NOTHING CHANGED ABOUT THAT. AND WHAT WE SHOWED IS THAT THE MARRIAGE RATE FROM THE TIME THAT AMENDMENT 3 WAS ENACTED OR WENT INTO EFFECT ON JANUARY 1ST, 2005 IN FACT HAS DECLINED. THAT LAW HAS DONE IN FACT

ABSOLUTELY NOTHING TO PROMOTE OPPOSITE-SEX MARRIAGE.

IT DECLINED FROM 9.8 PERCENT IN 2005 TO 8.6 PERCENT IN 2011, AND THE DIVORCE RATE STAYED THE SAME. SO IN TERMS OF THE REAL

EVIDENCE AND NOT THE WISH AND THE HOPE, IT DOESN'T BEAR IT OUT. BUT LOOKING AT IT, FLIPPING IT AROUND AND LOOKING AT IT FROM THE OTHER SIDE, THE UNCONTROVERTED EVIDENCE WE HAVE PUT IN IS THAT IN THOSE STATES WHERE SAME-SEX MARRIAGE IS LEGAL, THERE HAS BEEN NO IMPACT ON THE INDICATORS OF THE HEALTH OF HETEROSEXUAL MARRIAGE. AND IN FACT WE'VE DEMONSTRATED THAT IN

SOME OF THOSE STATES IN FACT HETEROSEXUAL MARRIAGE RATES HAVE GONE UP. THE CHILDREN BROUGHT -- BORN INTO WEDLOCK HAVEN'T AND WE DEMONSTRATED THAT IN THE WE'VE

BEEN IMPACTED AT ALL.

DECLARATIONS OF WELL RECOGNIZED EXPERTS, DR. BADGETT. PUT IT IN THE DECLARATION -- IT'S IN THE DECLARATION OF DR. PEPLAU.

AND MORE IMPORTANTLY, YOUR HONOR, THE 15 STATES IN WHICH

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SAME-SEX MARRIAGE WAS LEGAL BEFORE THE ADDITIONAL TWO STATES CAME IN, NEW JERSEY AND HAWAII, SUBMITTED AN AMICUS BRIEF BEFORE THE NINTH CIRCUIT CHALLENGING NEVADA'S BAN ON SAME-SEX MARRIAGE. AND THEY, BASED ON THEIR OWN EXPERIENCE,

DEMONSTRATED THAT THERE THE REALITY IS IT DOESN'T IMPACT IT. AND THEIR POINT IN THEIR BRIEF IS YOU SHOULDN'T BASE YOUR DECISIONS ON SPECULATION AND FEAR. REALLY HAPPENING. SO WHAT I WOULD SUBMIT TO YOUR HONOR IS THAT REGARDLESS OF WHAT YOU DO ON THE STATE INTEREST PRONG, THE FIRST PRONG, THERE IS NO QUESTION THE UNCONTROVERTED EVIDENCE IN THIS RECORD DEMONSTRATES THE LACK OF A RATIONAL CONNECTION. SO FOR LET'S LOOK AT WHAT'S

THAT REASON, THAT INTEREST, AS WELL AS EVERY OTHER ONE WHICH WE EXPLAIN IN OUR BRIEF, FALLS. THE SECOND POINT I WANT TO MAKE IS WITH REGARD TO THIS BENEVOLENCE TOWARD CHILDREN. AGAIN, I'M GOING TO BYPASS

WHETHER THAT PURPOSE IS BEING FURTHERED BY THE CLASSIFICATION AND TALK ABOUT, AGAIN, IS THERE A RATIONAL CONNECTION BETWEEN BANNING SAME-SEX COUPLES AND PROMOTING CHILD WELFARE? WELL, YOUR HONOR, THE EVIDENCE WE PUT IN THIS RECORD, WHICH IS UNCONTROVERTED, IS THE EXACT OPPOSITE IS TRUE, AND THAT IS BY BANNING SAME-SEX MARRIAGE YOU ARE HURTING UTAH CHILDREN. THERE IS ABSOLUTELY NO BASIS TO ARGUE THAT THIS

MARRIAGE EQUALITY WOULD IMPACT A SINGLE LIFE OF A SINGLE CHILD IN AN OPPOSITE-SEX MARRIAGE. BUT WHAT IS TRUE IS THERE ARE

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ALMOST 3,000 CHILDREN IN THIS STATE, REAL CHILDREN, REAL LIVES, WHO ARE BEING IMPACTED EVERY DAY BY THIS MARRIAGE DISCRIMINATION. AND THIS STATE SHOULD HEED THE ADVICE OF THE

SUPREME COURT ABOUT THE DAMAGE THAT THE FAILURE TO RECOGNIZE SAME-SEX MARRIAGE IS DOING TO THOSE CHILDREN BECAUSE UTAH OWES AN OBLIGATION TO EVERY CHILD IN THIS STATE, AND NOT JUST THOSE CHILDREN IN RELATIONSHIPS THAT THEY THINK ARE OKAY, EVERY CHILD. AND THESE LAWS NOT ONLY DON'T PROVIDE ANY HELP TO THOSE CHILDREN OF SAME-SEX COUPLES, THEY ABSOLUTELY DENIGRATE AND STIGMATIZE THEIR LIVES. AND I WOULD SUBMIT, YOUR HONOR, THAT

THIS INTEREST IN FACT DEMANDS THAT MARRIAGE EQUALITY COMES TO UTAH. YOUR HONOR, IN SUM ON THE DUE PROCESS -- I MEAN ON THE EQUAL PROTECTION, I WOULD SAY, REGARDLESS, WINDSOR, INTERMEDIATE, RATIONAL, THERE IS NO BASIS FOR YOU NOT TO DECLARE THE MARRIAGE DISCRIMINATION LAWS UNCONSTITUTIONAL. AND I WANT TO END WHERE I BEGAN WITH WINDSOR, AND I WANT TO TALK ABOUT TWO OF MY PLAINTIFFS, KAREN ARCHER AND KATE CALL, WHO WERE MARRIED IN IOWA. THIS STATE, CONTRARY TO THE

LONG AND UNCONTROVERTED HISTORY OF RECOGNIZING LEGAL MARRIAGES FROM OTHER STATES, REFUSES TO RECOGNIZE THEIR LEGAL MARRIAGE IN THIS STATE. IF YOU LOOK AT THE SITUATION IN WINDSOR, PLAINTIFFS ARCHER AND CALL ARE IN EXACTLY THE SAME POSITION AS THE

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PLAINTIFF IN WINDSOR.

THE PLAINTIFF IN WINDSOR WAS LEGALLY AND THE SUPREME COURT

MARRIED, JUST LIKE ARCHER AND CALL ARE.

FOUND TWO THINGS IMPORTANT RELATIVE TO THOSE PARTICULAR PLAINTIFFS. ONCE YOU GET MARRIED, YOU HAVE A LIBERTY INTEREST

IN THAT MARRIAGE THAT IS PROTECTED BY THE DUE PROCESS CLAUSE OF THE CONSTITUTION. IN WINDSOR IT WAS THE FIFTH, IN THIS AND IN WINDSOR THE COURT FOUND THAT

CASE IT'S THE FOURTEENTH.

BY DOMA NOT RECOGNIZING THOSE LEGAL MARRIAGES, YOU VIOLATED THAT FUNDAMENTAL LIBERTY INTEREST PROTECTED BY THE CONSTITUTION. THERE IS NO DIFFERENCE WITH REGARD TO THE

PLAINTIFFS ARCHER AND CALL. AND IN ADDITION, YOUR HONOR, IN THE WINDSOR DECISION, THEY FOUND IT WAS NOT JUST A DUE PROCESS VIOLATION BUT IT WAS AN EQUAL PROTECTION VIOLATION. BECAUSE YOU CANNOT TREAT TWO AND THAT IS A

PEOPLE, TWO LEGAL MARRIED PEOPLE, DIFFERENTLY.

CLASSIFICATION FOR CLASSIFICATION SAKE WHICH THE EQUAL PROTECTION CLAUSE WILL NOT TOLERATE. AND I WOULD SAY, YOUR

HONOR, FOR THAT REASON, WITH REGARD TO THOSE TWO PLAINTIFFS, INDEPENDENT OF ANYTHING ELSE, UNDER WINDSOR THEIR CONSTITUTIONAL RIGHTS HAVE BEEN VIOLATED AND IT NEEDS TO BE INVALIDATED WITH REGARD TO THEM. YOUR HONOR, I REALLY APPRECIATE THE TIME YOU'VE GIVEN ME. I KNOW IT'S A LOT MORE THAN YOU PROBABLY HAD ENVISIONED BASED ON OUR CONVERSATION, BUT I KNOW YOU KNOW THIS IS SERIOUS. I

THANK YOU FOR YOUR TIME, AND I KNOW QUOTING THE SUPREME COURT

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IN ROMER YOU WILL GIVE THIS CAREFUL CONSIDERATION.

AND I ASK

THAT YOU GRANT OUR MOTION, DENY THE STATE'S, AND BRING MARRIAGE EQUALITY TO UTAH. THE COURT: ALL RIGHT. THANK YOU, MS. TOMSIC.

WE'VE BEEN GOING FOR A LITTLE LONGER THAN AN

HOUR AND A HALF, AND MY COURT REPORTER'S FINGERS FALL OFF IF WE DON'T STOP PERIODICALLY AND LET HIM STRETCH THEM OUT. WE'LL TAKE A FEW MINUTES. YOU CAN ALL STRETCH YOUR LEGS. SO

MR. LOTT, I CAN'T IMAGINE YOU HAVE ANYTHING TO SAY ABOUT ANY OF THAT, BUT WHEN WE COME BACK WE'LL HEAR WHATEVER YOU MIGHT HAVE TO SAY. MR. LOTT: THE COURT: MINUTES. (RECESS FROM 11:49 A.M UNTIL 12:16 P.M.) THE COURT: MR. LOTT: MR. LOTT, YOU HAVE THE FLOOR. THANK YOU, YOUR HONOR. YOUR HONOR, VERY GOOD, THANK YOU. LET'S TAKE ABOUT A LITTLE MORE THAN 10

MR. PURSER AND I WILL BE SPLITTING UP THE DISCUSSION OF THIS CASE. I'M GOING TO BE TALKING ABOUT THE WINDSOR CASE AND THE

BAKER V. NELSON CASE THAT'S NOT BEEN DISCUSSED YET, AND MR. PURSER WILL ADDRESS EQUAL PROTECTION ISSUES. AT THE BEGINNING OF THE HEARING TODAY THE COURT ASKED THE QUESTION WHETHER IF -- IF THE COURT DECIDED TO REQUIRE SAME-SEX MARRIAGE, WHETHER IT WOULD BE THE FIRST FEDERAL DISTRICT COURT TO DO SO. I THINK THAT QUESTION ILLUSTRATES

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WHAT I WOULD LIKE TO START OUT WITH, AND IT'S THE QUESTION OF WHETHER THIS IS AN ISSUE APPROPRIATELY DECIDED BY A COURT OR WHETHER IT'S MORE APPROPRIATELY DECIDED BY THE PEOPLE. AND IT'S ILLUSTRATIVE I THINK TO LOOK AT THE STATES THAT HAVE ADOPTED SAME-SEX MARRIAGE AND TO RECOGNIZE THAT IN THE GREAT MAJORITY OF THOSE STATES IT HAS BEEN DONE THROUGH THE DEMOCRATIC PROCESS. THERE'S ONLY BEEN A HANDFUL OF JUDICIAL

DECISIONS THAT HAVE RESULTED IN SAME-SEX MARRIAGE BEING ADOPTED, AND IN FACT IT'S BEEN ESSENTIALLY ALL STATE COURT DECISIONS CONSTRUING STATE CONSTITUTIONS. THE COURT: I WONDER -- I SUSPECT THAT YOU AND I

ACTUALLY SEE THIS THE SAME WAY, SO LET'S SEE IF THAT'S TRUE. MAYBE WE CAN FAST FORWARD A LITTLE BIT. MR. LOTT: THE COURT: OKAY. THE WINDSOR DECISION TELLS US, AND I

THINK CORRECTLY SO, THAT THE REGULATION OF MARRIAGE IS SOMETHING TRADITIONALLY LEFT TO THE STATES. STATES' PROVINCE. IT'S WITHIN THE

THAT'S ONE OF THOSE AREAS THAT STATES

DETERMINE FOR THEMSELVES. MR. LOTT: THE COURT: CORRECT. AND OUR FEDERAL JUDICIARY IS CHARGED

WITH THE RESPONSIBILITY OF ENSURING THAT THOSE REGULATIONS STAY WITHIN THE CONFINES OF CONSTITUTIONAL PARAMETERS. AND

THAT'S THE SINGULAR PURPOSE OF JUDICIAL REVIEW IN A CASE LIKE THIS, RIGHT, TO DETERMINE WHETHER THERE'S A CONSTITUTIONAL

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VIOLATION BY VIRTUE OF THE STATE'S CHOSEN METHODOLOGY FOR GOVERNING MARRIAGE. MR. LOTT: THE COURT: MR. LOTT: DO YOU AGREE WITH THAT? I AGREE. OKAY. I THINK WE'RE ON THE SAME PAGE.

I DO WANT TO, HOWEVER, JUST POINT OUT A AND THERE'S REALLY

COUPLE OF ISSUES FROM THE WINDSOR CASE.

ONE PRIMARY QUOTE I WANTED TO REFER TO, AND THIS IS ON PAGE 2692 OF THE DECISION. THE STATE'S POWER IN DEFINING MARITAL

RELATION IS OF CENTRAL RELEVANCE IN THIS CASE QUITE APART FROM THE PRINCIPLES OF FEDERALISM. HERE THE STATE'S DECISION TO

GIVE THIS CLASS OF PERSONS THE RIGHT TO MARRY CONFERRED UPON THEM A DIGNITY AND STATUS OF IMMENSE IMPORT. WHEN THE STATE

USED ITS HISTORIC AND ESSENTIAL AUTHORITY TO DEFINE THE MARITAL RELATION IN THIS WAY, ITS, MEANING THE STATE'S, ROLE AND ITS, MEANING THE STATE'S, POWER IN MAKING THE DECISION ENHANCED THE RECOGNITION, DIGNITY, AND PROTECTION OF THE CLASS IN THEIR OWN COMMUNITY. AND WE AGREE THAT IT'S THE STATE'S ROLE TO DEFINE MARRIAGE, AND THE COURT, THE SUPREME COURT, DID NOTHING TO SAY THAT THAT'S NOT THE CASE. THE COURT: BUT AREN'T THERE -- I GUESS I DIDN'T GO

THROUGH AND TRY TO COUNT THE JUSTICES FROM ALL THE SEPARATE OPINIONS. THERE'S AT LEAST SEVEN, AND MAYBE NINE OF THEM,

THAT THINK THAT THE QUESTION THAT WE'RE PRESENTED IN THIS CASE IS ONE THAT WOULD HAVE TO BE ANSWERED AND WASN'T ANSWERED IN

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THE WINDSOR DECISION. MR. LOTT:

DO YOU AGREE WITH THAT? NOT NECESSARILY. I THINK THAT -- AND I AND

WANT TO TALK ABOUT THE BAKER V. NELSON CASE IN A MINUTE.

I THINK IT'S INTERESTING TO LOOK AT HOW A COUPLE OF FEDERAL CIRCUIT COURTS HAVE VIEWED THAT CASE. BUT, NO, I DON'T

NECESSARILY AGREE THAT IT'S A DECISION AGAIN FOR A FEDERAL COURT, EVEN THE SUPREME COURT, TO BE DECIDING. FOR THE STATES. THE COURT: CHIEF JUSTICE ROBERTS HAS IT WRONG WHEN IT'S AN ISSUE

HE SAYS IN HIS DISSENT THAT THIS VERY QUESTION AS PRESENTED HERE IS NOT THE QUESTION BEFORE THAT COURT AND IS ONE THAT WOULD HAVE TO BE SEPARATELY ADDRESSED? ALSO I THINK HAS THAT VIEW. MR. LOTT: IT IS A SEPARATE ISSUE. IT'S A SEPARATE ONE OF THE KEY AND JUSTICE SCALIA

ISSUE FROM WHAT WAS BEING DECIDED IN WINDSOR.

QUOTES FROM WINDSOR ALSO TALKS ABOUT THE DYNAMICS OF STATE GOVERNMENT IN THE FEDERAL SYSTEM, AND IT SAYS THAT THE DYNAMICS OF THE STATE GOVERNMENT ARE TO ALLOW FORMATION OF CONSENSUS, AND RESPECTING THE WAY MEMBERS OF THE DISCRETE COMMUNITY TREAT EACH OTHER IN THEIR DAILY CONTACT AND CONSTANT INTERACTION WITH EACH OTHER. HERE REALLY WHAT THE PLAINTIFFS

SEEK IS TO SHORT-CIRCUIT ALLOWING FORMATION OF CONSENSUS AND TO TAKE THE DECISION AWAY FROM THE PEOPLE IN FORMING THAT CONSENSUS AND RATHER HAVE THE COURT MAKE THIS DECISION. AND IN FACT ALSO IN WINDSOR THE SUPREME COURT CRITICIZED

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THE FEDERAL GOVERNMENT FOR ITS EFFORTS TO, QUOTE, INFLUENCE OR INTERFERE WITH STATE SOVEREIGN CHOICES ABOUT WHO MAY BE MARRIED AND TO PUT A THUMB ON THE SCALES AND INFLUENCE A STATE'S DECISION AS TO HOW TO SHAPE ITS OWN MARRIAGE LAWS. NOW, OF COURSE THAT WAS TAKING ABOUT CONGRESS THROUGH A LEGISLATIVE ENACTMENT, BUT I THINK THE PRINCIPLE IS THE SAME. IT'S NOT REALLY THE PLACE OF THE FEDERAL GOVERNMENT TO PUT THE THUMB ON THE SCALES, AS THE COURT DESCRIBED IT, TO TRY TO INFLUENCE WHICH WAY A STATE IS GOING TO COME DOWN ON THE ISSUE OF SAME-SEX MARRIAGE. I ALSO WANTED TO MENTION THE SCOPE OF THE SECOND CIRCUIT WINDSOR DECISION, AND I THINK IT'S ILLUSTRATIVE TO SHOW THE LIMITS OF WHAT THE ISSUE ACTUALLY WAS. THE PLAINTIFFS HAVE BEEN DESCRIBING IT. THE SECOND CIRCUIT EXPRESSLY RECOGNIZED IN WINDSOR, QUOTE, WHEN IT COMES TO MARRIAGE, LEGITIMATE REGULATORY INTERESTS OF A STATE DIFFER FROM THOSE OF THE FEDERAL GOVERNMENT. AND ANALYSIS OF DOMA'S MARITAL CLASSIFICATION IT'S NOT AS BROAD AS

UNDER FEDERAL LAW IS DISTINCT FROM THE ANALYSIS NECESSARY TO DETERMINE WHETHER THE MARITAL CLASSIFICATION OF A STATE WOULD SURVIVE SCRUTINY. SO REALLY IT'S JUST CLARIFYING THAT IN

WINDSOR THEY WERE LOOKING AT THE FEDERAL GOVERNMENT'S INTEREST. AND IT'S VERY CLEAR THAT THE LEGITIMATE REGULATORY

INTERESTS OF THE STATE WOULD BE DIFFERENT THAN THE FEDERAL GOVERNMENT.

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AND TO ME IT'S -- IT'S -- IT'S QUITE IMPORTANT THAT THE SECOND CIRCUIT ALSO SAID, AND THIS IS AT 699 FEDERAL 3RD 188, QUOTE, WE AGREE THAT PROMOTION OF PROCREATION CAN BE AN IMPORTANT GOVERNMENT OBJECTIVE, BUT WE DO NOT SEE HOW DOMA IS SUBSTANTIALLY RELATED TO IT. EVEN THE SECOND CIRCUIT

RECOGNIZED THAT PROMOTION OF PROCREATION CAN BE AN IMPORTANT GOVERNMENT OBJECTIVE. AND, AGAIN, THE FEDERAL COURT WAS

LOOKING AT THE FEDERAL GOVERNMENT'S INTEREST, WHICH IT EXPRESSLY RECOGNIZES IS DIFFERENT THAN THE STATE -- A STATE'S INTEREST. THE COURT: I DON'T THINK THE PLAINTIFFS IN THIS

CASE TAKE ISSUE WITH THAT PROPOSITION. MR. LOTT: BAKER V. NELSON. THERE'S NO DECISION

FROM THE SUPREME COURT, THERE'S NO DECISION FROM THE TENTH CIRCUIT COURT OF APPEALS THAT HAS EVER DECIDED THAT THERE'S A CONSTITUTIONAL RIGHT TO SAME-SEX MARRIAGE. THERE IS, HOWEVER,

A BINDING SUPREME COURT DECISION IN BAKER V. NELSON THAT WHERE A STATE LAW DEFINING MARRIAGE AS A UNION BETWEEN A MAN AND A WOMAN WAS FOUND TO NOT VIOLATE THE DUE PROCESS AND EQUAL PROTECTION CLAUSES. AND THE COURT ALREADY KNOWS THE BACKGROUND OF THE BAKER V. NELSON CASE. WHAT I WANTED TO EMPHASIZE REGARDING THIS

THOUGH IS THAT THE TWO MOST RECENT FEDERAL DISTRICT COURTS THAT HAVE LOOKED AT STATE LAWS DEFINING MARRIAGE HAVE FOUND THE BAKER V. NELSON DISMISSAL TO BE BINDING. AND I THINK THAT

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THE COURT SHOULD TAKE THE VIEW OF THE SISTER DISTRICT COURTS INTO CONSIDERATION WITH THIS. IT'S ALSO IMPRESSIVE TO ME THAT THE FIRST CIRCUIT COURT OF APPEALS ALSO LAST YEAR IN 2012 IN A CASE THAT INVOLVED FEDERAL MARRIAGE-BASED BENEFITS, AND IT ALSO INVOLVED DOMA, IT ALSO CONSIDERED THE BAKER CASE. AND THIS IS WHAT THE FIRST IT SAID THAT RECENT

CIRCUIT SAID AT 682 FEDERAL 3RD PAGE 8.

SUPREME COURT -- OR SUBSEQUENT SUPREME COURT OPINIONS MAY OPEN THE DOOR TO SOME WHAT IT CALLED GAY RIGHTS CLAIMS, BUT BAKER, AND THIS IS THE QUOTE, LIMITS THE ARGUMENTS TO ONES THAT DO NOT PRESUME OR REST ON A CONSTITUTIONAL RIGHT TO SAME-SEX MARRIAGE, UNQUOTE. SO THE FIRST CIRCUIT IS RECOGNIZING BAKER

V. NELSON STILL AS BEING A LIMITATION ON THE TYPE OF CASE THAT CAN BE CONSIDERED. THE COURT: THE SISTER JURISDICTIONS YOU TALKED

ABOUT, THE DISTRICT COURT OPINIONS, I THINK YOU'RE REFERRING TO NEVADA AND HAWAII, THOSE ARE BOTH PRE-WINDSOR DECISIONS. IS IT RELEVANT THAT NONE OF THE DISSENTING JUSTICES IN THE WINDSOR DECISION POINTED TO BAKER OR EVEN -- I DIDN'T SEE THAT BAKER WAS EVEN REFERENCED IN ANY OF THE DISSENTS AS A BASIS FOR SAYING THAT THIS QUESTION HAS ALREADY BEEN ANSWERED OR IT'S NOT BEFORE THE COURT. MR. LOTT: WELL, AS WE'VE ALREADY AGREED, THE ISSUE THE ISSUE IN WINDSOR WAS

IN WINDSOR WAS NOT THE BAKER ISSUE.

NOT THE VALIDITY OF A STATE LAW DEFINING MARRIAGE, SO THERE

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WOULD HAVE BEEN NO REASON WE NEED TO TALK ABOUT BAKER. THE COURT: IS JUSTICE SCALIA WRONG IN HIS ANALYSIS

WHEN HE SAYS THAT THE MAJORITY DECISION WILL INEVITABLY LEAD TO GAY MARRIAGE IN ALL THE 50 STATES? AND IS JUSTICE ROBERTS

WRONG WHEN HE SAYS THAT THAT ISSUE IS ONE THAT WILL HAVE TO BE ADDRESSED IN A SUBSEQUENT DECISION? DID THEY JUST BOTH -- I'M

CURIOUS WHETHER I SHOULD SUBSTITUTE MY JUDGMENT FOR THE SUPREME COURT JUSTICES WHO SPOKE ON THIS ISSUE AND SEEM -SURELY THEY'RE AWARE OF BAKER. NEITHER ONE OF THEM SEEM TO

THINK THAT THE COURT IS CONSTRAINED BY BAKER. MR. LOTT: CASE. THEY DID NOT EXPRESSLY DISCUSS THE BAKER

AND I AGREE THAT THERE'S SOME LANGUAGE THAT THE COURT BUT I THINK IT'S IMPORTANT ALSO

IS GOING TO HAVE TO REVIEW.

TO CONSIDER WHAT THE SUPREME COURT HAS INSTRUCTED LOWER COURTS REGARDING SUMMARY DISMISSALS. AND IN THE HICKS VERSUS MIRANDA

CASE THE SUPREME COURT SAID INFERIOR FEDERAL COURTS HAD BEST ADHERE TO THE VIEW THAT IF THE COURT HAS BRANDED A QUESTION AS SUBSTANTIAL, IT REMAINS SO EXCEPT WHEN DOCTRINAL DEVELOPMENTS INDICATE OTHERWISE. AND LOWER COURTS ARE BOUND BY SUMMARY

DECISIONS BY THE SUPREME COURT UNTIL SUCH TIME AS THE COURT INFORMS THEM THAT THEY ARE NOT. I DON'T READ THE WINDSOR CASE AS INFORMING LOWER COURTS THAT THEY ARE NOT BOUND BY THE BAKER V. NELSON CASE. AND IN

FACT EVEN IN THE WINDSOR SECOND CIRCUIT DECISION, EVEN THOUGH THE SUPREME COURT DID NOT REFERENCE BAKER IN THE SECOND

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CIRCUIT, IN THE WINDSOR DECISION THEY DID LOOK AT THE BAKER CASE. AND IN THAT DECISION THEY STATED THE QUESTION WHETHER

THE FEDERAL GOVERNMENT MAY CONSTITUTIONALLY DEFINE MARRIAGE AS IT DOES IN SECTION THREE OF DOMA IS SUFFICIENTLY DISTINCT FROM THE QUESTION IN BAKER, WHETHER SAME-SEX MARRIAGE MAY BE CONSTITUTIONALLY RESTRICTED BY THE STATES. 3RD 178. THAT'S 699 FEDERAL

SO THE UNDERLYING COURT, THE SECOND CIRCUIT, DID

LOOK AT WINDSOR, AND THEY FELT THAT BECAUSE THE ISSUE WAS DIFFERENT, THAT WAS WHY IT WOULD NOT APPLY. NOW, AS FAR AS DOCTRINAL DEVELOPMENT SINCE -- SINCE THE BAKER CASE, THE PLAINTIFFS HAVE CITED THE LAWRENCE CASE. THE

LAWRENCE CASE BY ITS OWN EXPRESS LANGUAGE DID NOT INTEND ITS HOLDING TO COVER SAME-SEX MARRIAGE. AND, FURTHER, IN THE ALSO IN

LAWRENCE CASE RATIONAL BASIS REVIEW WAS APPLIED.

ROMER, THE ROMER CASE DID NOT DEAL WITH SAME-SEX MARRIAGE. AND SO ALTHOUGH THOSE CASES DEALT WITH -- WITH SEXUAL ORIENTATION, WHICH IS IN PART WHAT WE'RE TALKING ABOUT, THEY DID NOT DEAL WITH THE ISSUE OF A STATE DEFINITION OF SAME-SEX MARRIAGE. SO BAKER IS THE LAST WORD THE SUPREME COURT HAS GIVEN ON THE CONSTITUTIONALITY OF A STATE LAW LIMITING MARRIAGE TO OPPOSITE-SEX COUPLES, AND IT'S THE STATE'S VIEW THAT IT REMAINS BINDING UPON THIS COURT. NOW, AS FAR AS SUBSTANTIVE DUE PROCESS, MS. TOMSIC DID SPEND A LOT OF TIME TALKING ABOUT IT, BUT I THINK THAT I WOULD

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LIKE TO AT LEAST STATE THE STATE'S VIEW ON HOW THIS APPLIES. AS THE COURT IS AWARE, AND AS THE PLAINTIFFS HAVE CONCEDED, THE WASHINGTON V. GLUCKSBERG CASE IS THE CASE THAT SETS FORTH WHAT'S CALLED THE ESTABLISHED METHOD FOR SUBSTANTIVE DUE PROCESS REVIEW AND THE METHOD FOR DETERMINING WHETHER THERE IS A FUNDAMENTAL RIGHT. THE COURT HAS ACKNOWLEDGED THAT JUDICIAL RECOGNITION OF A NEW RIGHT PLACES THE MATTER OUTSIDE OF THE ARENA OF PUBLIC DEBATE AND LEGISLATIVE ACTION, AND CONSEQUENTLY COURTS ARE ADVISED TO EXERCISE THE UTMOST CARE WHENEVER THEY ARE ASKED TO BREAK NEW GROUND IN THIS FIELD. OTHERWISE, THE RIGHTS

PROTECTED BY THE DUE PROCESS CLAUSE CAN BE SUBTLY TRANSFORMED INTO THE POLICY PREFERENCES OF THE COURT RATHER THAN THE PEOPLE. THERE ARE TWO REQUIRED ELEMENTS FOR A FUNDAMENTAL RIGHTS ANALYSIS. THE FIRST IS THAT A RIGHT HAS TO BE OBJECTIVELY,

DEEPLY ROOTED IN THIS NATION'S HISTORY AND TRADITION, AND, SECOND, THE CLAIMED RIGHT HAS TO BE CAREFULLY DESCRIBED. NOW, THE PLAINTIFFS IN THIS CASE CLAIM THAT SAME-SEX MARRIAGE IS MARRIAGE, THAT THERE'S NO DIFFERENCE BETWEEN MARRIAGE BETWEEN A MAN AND A WHOM AND MARRIAGE BETWEEN TWO WOMEN OR TWO MEN. THEY TRY TO ESTABLISH THIS RIGHT BY RELYING

UPON SUPREME COURT PRECEDENT, BUT IT'S UNDISPUTED THAT THERE IS NO SUPREME COURT PRECEDENT ESTABLISHING A FUNDAMENTAL RIGHT TO SAME-SEX MARRIAGE.

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THE COURT:

THE QUESTION REALLY POSED HERE IN THE

DUE PROCESS ANALYSIS IS ONE OF THE LEVEL OF SPECIFICITY IN DEFINING THE RIGHT. ABOUT THAT. DO WE -- I THINK WE PROBABLY ALL AGREE THAT'S BEEN WE

MARRIAGE IS A FUNDAMENTAL RIGHT.

RECOGNIZED AS A FUNDAMENTAL RIGHT BY THE SUPREME COURT. AGREE? MR. LOTT: THE COURT: WE AGREE.

SO IS THIS A QUESTION ABOUT CREATING A

NEW FUNDAMENTAL RIGHT OR IS THIS A QUESTION ABOUT REGULATING ACCESS TO THAT RIGHT? MR. LOTT: THE STATE'S VIEW IS THAT THE PLAINTIFFS

ARE ATTEMPTING TO CREATE A NEW RIGHT, AND THEY'VE CITED THE SUPREME COURT DECISIONS REGARDING MARRIAGE BEING A FUNDAMENTAL RIGHT, AND WE HAVE TO LOOK AT WHAT THOSE CASES SAY. THE

SKINNER CASE -- ONE OF THE CASES THAT THE PLAINTIFFS RELY UPON HEAVILY IS THE LOVING CASE, AND THIS LANGUAGE IS CITED IN THE LOVING CASE TO DESCRIBE WHAT MARRIAGE IS. THE QUOTE IS THAT

MARRIAGE IS FUNDAMENTAL TO THE VERY EXISTENCE AND SURVIVAL OF THE RACE. THE SAME SEX COUPLE CANNOT HAVE CHILDREN. WHAT'S

BEING DESCRIBED HERE AS THE FUNDAMENTAL RIGHT TO MARRIAGE IS DIFFERENT THAN WHAT A SAME-SEX MARRIAGE WOULD BE. THE COURT: BUT IS -- IS PROCREATION ESSENTIAL TO

THE DEFINITION OF THAT FUNDAMENTAL RIGHT OF MARRIAGE? MR. LOTT: ACCORDING TO THE LANGUAGE OF THE SUPREME

COURT DECISIONS IT IS.

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THE COURT: MR. LOTT:

WHICH CASE DO YOU RELY ON FOR THAT? THE SKINNER CASE, THE MAYNARD VERSUS HILL

CASE THAT I WAS GOING TO QUOTE LANGUAGE TO YOU FROM, THE ZABLOCKI CASE. THE COURT: BUT WHAT DO WE MAKE ABOUT -- WHAT DO WE

MAKE OF CASES LIKE THE PRISONER CASES THAT -- THERE WERE A COUPLE, BUT IS IT TURNER V. SAFLEY FOR EXAMPLE? IN TURNER V.

SAFLEY THE SUPREME COURT SAYS EVEN THOUGH YOU'RE INCARCERATED, YOU HAVE A RIGHT TO MARRY. AND I THINK THERE'S NO EXPECTATION MAYBE

IN THAT CIRCUMSTANCE THAT THERE WOULD BE PROCREATION. THERE'S A POSSIBILITY OF IT. ON THE DEATH PENALTY CASE. MR. LOTT:

WE COULD DISTINGUISH THIS BASED

WELL, IN THAT CASE WE HAVE TO RECOGNIZE

THE LIMITED CONTEXT OF IT, AND IN FACT A PRISONER BEING IN THE SITUATION OF IMPREGNATING A PERSON IN THAT DECISION WAS CONSIDERED TO BE A COMPELLING REASON TO HAVE MARRIAGE. THAT

WAS ONE OF THE REGULATIONS THAT ALLOWED A MARRIAGE WAS IF THERE WAS AN IMPREGNATION SO THE CHILD WOULD NOT BE ILLEGITIMATE. BUT EVEN BEYOND THAT, WHEN THE COURT IS DESCRIBING THE -THE -- I'M SEARCHING FOR THE WORD -- THE CHARACTERISTICS OF MARRIAGE, THE ATTRIBUTES OF MARRIAGE, THE COURT INCLUDED THE FOLLOWING. QUOTE: THE MOST -- QUOTE: MOST INMATE MARRIAGES

ARE FORMED IN THE EXPECTATION THAT THEY ULTIMATELY WILL BE FULLY CONSUMMATED, UNQUOTE. SO EVEN IN THAT DECISION THE

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CONTEXT WAS A PRISONER MARRYING SOMEONE WHERE THERE WAS NOT AN EXPECTATION WHILE THE PERSON WAS IN PRISON THAT THERE WOULD BE PROCREATION, IT IS STILL CONSIDERED -- THE COURT STILL CONSIDERED AN ATTRIBUTE OF MARRIAGE TO BE CONSUMMATING THAT RELATIONSHIP. THE COURT: I'VE THOUGHT ABOUT THIS A LITTLE BIT AND IS IT THE STATE'S IS IT THE STATE'S

I'VE WONDERED ABOUT ITS APPLICATION. POSITION -- LET'S POSE A HYPOTHETICAL.

POSITION THAT IT WOULD BE CONSTITUTIONAL, IF THE STATE CHOSE TO DO SO, TO ENACT A REGULATION OR LAW REQUIRING THAT INDIVIDUALS WHO WISH TO MARRY SUBMIT TO FERTILIZATION TESTING TO PROVE THAT THEY'RE CAPABLE OF PROCREATION? CONSTITUTIONAL? IS THAT

BECAUSE MARRIAGE -- YOU'RE RELYING ON

PROCREATION AS AN ESSENTIAL CHARACTERISTIC OF THAT UNION OR THAT RIGHT? MR. LOTT: OVERLY BROAD. THE COURT: MR. LOTT: WHY? WELL, I DON'T BELIEVE IT WOULD BE I THINK THAT THAT LAW WOULD MAYBE BE

CONSTITUTIONAL ALSO BECAUSE THERE IS SUPREME COURT PRECEDENT SAYING THAT THE RIGHT TO NOT PROCREATE IS A FUNDAMENTAL RIGHT. SO THE STATE WOULD NOT -- WOULD NOT DO THAT AND WOULD NOT BE ABLE TO DO THAT. BUT TO THE BROADER POINT I THINK YOU'RE TRYING TO BRING UP, JUST BECAUSE A LAW IS NOT BROAD ENOUGH TO -- TO ONLY COVER

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COUPLES THAT ARE GOING TO PROCREATE DOES NOT NEGATE THE STATE'S INTEREST IN FOSTERING AND ENCOURAGING CIRCUMSTANCES WHERE PROCREATION IS GOING TO OCCUR WITHIN A MARRIAGE AND WHERE CHILDREN ARE GOING TO BE RAISED BY THEIR BIOLOGICAL MOTHER AND FATHER. THE COURT: BEFORE WE LEAVE THAT LAST HYPOTHETICAL,

LET ME -- LET ME POSE IT A DIFFERENT WAY AND SEE IF THE ANSWER IS ANY DIFFERENT. COULD THE STATE OF UTAH CONSTITUTIONALLY

RESTRICT MARRIAGE -- DENY MARRIAGE LICENSES SAY TO POST MENOPAUSAL WOMEN? MR. LOTT: THE COURT: THE STATE WOULDN'T DO THAT. COULD IT CONSTITUTIONALLY? IS IT YOUR

POSITION THAT THAT WOULD BE A CONSTITUTIONALLY PERMITTED REGULATION? MR. LOTT: WELL, IT'S HARD FOR ME TO ANSWER THAT I THINK THE

BECAUSE I CAN'T ENVISION THE STATE DOING THAT.

ANSWER AGAIN IS THAT THE STATE'S INTEREST IN FOSTERING PROCREATION WITHIN CERTAIN PARAMETERS IS NOT INTENDED TO EXCLUDE OTHER RELATIONSHIPS THAT POTENTIALLY ARE GOING TO INVOLVE RAISING A CHILD. IF YOU HAVE A POST MENOPAUSAL WOMAN,

SHE MAY NOT HERSELF BE ABLE TO HAVE A CHILD, BUT THAT DOESN'T MEAN THAT SHE'S NOT GOING TO HAVE A GRANDCHILD THAT SHE MAY BE IN A POSITION TO NEED TO RAISE OR A NIECE OR A NEPHEW, AND SO THE INTEREST -- THE STATE'S INTEREST IS STILL PRESENT. THE COURT: SO IS IT SOMETHING DIFFERENT THAN AN

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INDIVIDUAL'S ACTUAL ABILITY TO PROCREATE? THAT'S NOT THE FUNDAMENTAL CHARACTERISTIC?

THAT'S NOT -IT'S THE

LIKELIHOOD THAT THE PERSON MAY FIND THEMSELVES IN THE POSITION OF RAISING A CHILD? MR. LOTT: THE COURT: THE COURT: THAT RESPECT? MR. LOTT: WELL, A GAY OR LESBIAN PERSON OBVIOUSLY YES. OKAY. HOW ARE SAME-SEX COUPLES DIFFERENT IN

CAN REPRODUCE, BUT IT'S NOT GOING TO OCCUR WITHIN A SAME-SEX MARRIAGE. MS. TOMSIC HAS ALREADY STATED THAT THERE ARE GAY THEY HAVE

AND LESBIAN INDIVIDUALS THAT DO HAVE CHILDREN.

SEXUAL INTERCOURSE AND THEY -- THEY PRODUCE OFFSPRING, BUT IT'S NOT GOING TO OCCUR WITHIN A SAME-SEX MARRIAGE. THE COURT: THE DEFINITION THOUGH. IT SEEMS TO ME THAT THAT ANSWER CHANGED IT SEEMS TO ME THAT WE'VE STEPPED AWAY

FROM WHAT YOU SAID A MOMENT AGO, THAT IT'S THE LIKELIHOOD THAT AN INDIVIDUAL MAY FIND THEMSELVES IN THE POSITION OF RAISING A CHILD, AND NOW IT SEEMS LIKE YOU'VE CHANGED THE DEFINITION TO ONE JUST BY DEFINITION INVOLVES DIFFERENT SEX UNION. MR. LOTT: THE COURT: MAYBE I MISUNDERSTOOD YOUR QUESTION. I'M WONDERING HOW IT IS THAT A SAME-SEX

PERSON IS DIFFERENT, FOR PURPOSES OF THIS DISCUSSION WE'RE HAVING ABOUT THIS HYPOTHETICAL, THAN A POST MENOPAUSAL WOMAN, BOTH OF WHOM MAY FIND THEMSELVES SOME DAY IN THE POSITION OF

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HAVING TO RAISE A CHILD? MR. LOTT: WELL, AGAIN, THE STATE -- AND THIS WILL

GET INTO I THINK PART OF WHAT MR. PURSER IS GOING TO DISCUSS IS WHAT THE ACCEPTED PARAMETERS OF A STATE INTEREST ARE. AND

A STATE INTEREST DOES NOT HAVE TO BE SO BROAD TO INCLUDE ALL POSSIBLE EVENTUALITIES. IT CAN BE MORE NARROW THAN THAT AND

STILL BE A RATIONAL -- A RATIONAL PURPOSE. THE COURT: TEST THE QUESTION. I APPRECIATE THAT. I'M JUST TRYING TO

YOU AND I WERE TALKING ABOUT A FUNDAMENTAL WE BOTH AGREE

RIGHT AND WHAT DEFINES A FUNDAMENTAL RIGHT.

THAT MARRIAGE IS A FUNDAMENTAL RIGHT, AND SO I WAS SEARCHING FOR SOME GUIDANCE ABOUT WHAT ARE THE ESSENTIAL CHARACTERISTICS OF THAT FUNDAMENTAL RIGHT THAT ARE DIFFERENT FROM THE FUNDAMENTAL RIGHT THAT THE PLAINTIFFS ARE ASKING US TO RECOGNIZE IN THIS CASE? MR. LOTT: THE SIMPLE ANSWER TO THAT IS THAT A SAME-SEX COUPLE IS NOT GOING

PROCREATION IS THE DIFFERENCE. TO PRODUCE CHILDREN. THE COURT: OKAY.

SO POST MENOPAUSAL WOMEN IN THE

STATE OF UTAH DO NOT HAVE A CONSTITUTIONAL RIGHT TO MARRY, AS AN EXAMPLE, OR PEOPLE WHO BY VIRTUE OF SURGICAL OPERATIONS OR GENETICS OR WHATEVER REASON, IF THEY CAN'T PROCREATE, THERE'S NOT A FUNDAMENTAL RIGHT TO MARRY. THAT'S THE STATE'S VIEW

ABOUT THE DEFINING DIFFERENCE BETWEEN THE FUNDAMENTAL RIGHT THAT THE PLAINTIFFS ARE SEEKING HERE AND THOSE THAT ARE

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RECOGNIZED BY THE SUPREME COURT? MR. LOTT: NO. I THINK AGAIN THE COURT IS STATING

AN INTEREST MORE BROADLY THAN WHAT THE STATE INTEREST THAT WE ARE ASSERTING IS, ACTUALLY IS. THE COURT: MR. LOTT: OKAY. THE STATE -- THE STATE IS NOT TAKING THE

POSITION AS THE COURT HAS STATED IT. THE COURT: NO, I'M SORRY. WE'RE JUST HAVING A

HYPOTHETICAL CONVERSATION, EXPLORING THE CONSTRAINTS OF THE STATE'S POSITION. I JUST WANT TO ENSURE I UNDERSTAND. I ALSO WANTED TO MENTION THE LAWRENCE

MR. LOTT:

CASE THAT THE PLAINTIFFS HAVE CITED AS ESTABLISHING A FUNDAMENTAL RIGHT TO MARRIAGE. CLEARLY THE LAWRENCE CASE DID

NOT INVOLVE LEGAL RECOGNITION OF SAME-SEX UNIONS, AND THE COURT EXPRESSLY STATED THAT THE CASE DOES NOT INVOLVE WHETHER THE GOVERNMENT MUST GIVE FORMAL RECOGNITION TO ANY RELATIONSHIP THAT HOMOSEXUAL PERSONS SEEK TO ENTER. AND IN FACT THE LAWRENCE CASE, WHICH DID ADDRESS CRIMINALIZATION OF HOMOSEXUAL CONDUCT, DID NOT EVEN FIND A FUNDAMENTAL RIGHT FOR THAT CONDUCT. AND JUSTICE O'CONNOR IN

HER CONCURRING OPINION POINTED OUT THAT THE CONDUCT AT ISSUE DID NOT INVOLVE PUBLIC CONDUCT. IT DOES NOT INVOLVE WHETHER

THE GOVERNMENT MUST GIVE FORMAL RECOGNITION TO ANY RELATIONSHIP THAT HOMOSEXUAL PERSONS SEEK TO ENTER. AND SHE

WENT ON TO SAY IN SUCH A CASE WHERE THERE WOULD BE A CLAIMED

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RIGHT, PRESERVING THE TRADITIONAL INSTITUTION OF MARRIAGE WOULD ITSELF CONSTITUTE A LEGITIMATE STATE INTEREST. AND

UNDER -- STATE INTEREST UNDER RATIONAL BASIS REVIEW, AND OTHER REASONS EXIST TO PROMOTE THE INSTITUTION OF MARRIAGE BEYOND MERE MORAL DISAPPROVAL OF AN EXCLUDED GROUP. THAT'S OUR POSITION IN A NUTSHELL ON DUE PROCESS, THAT THE PLAINTIFFS HAVE NOT ESTABLISHED A FUNDAMENTAL RIGHT FOR SAME-SEX MARRIAGE. THE COURT: OPINION? WHAT DO YOU MAKE OF JUSTICE STEVENS'

I DON'T NOW RECALL WHETHER -- BUT JUSTICE STEVENS'

DECISION IN -- OR OPINION IN ZABLOCKI -- IT WASN'T THE OPINION OF THE COURT -- WHERE HE WAS -- WHERE HE POSED THE QUESTION WHETHER THERE WAS A DIFFERENCE BETWEEN REGULATING MARRIAGE AND REGULATING ACCESS TO MARRIAGE? IN THIS CASE? MR. LOTT: I DON'T RECALL EXACTLY WHAT HE SAID. I'D IS THAT AN ISSUE THAT WE HAVE

HAVE TO TAKE A MINUTE TO GO FIND WHAT HE SAID, SO I DON'T KNOW WHETHER I CAN ANSWER THAT. THE COURT: I THINK. THANK YOU. MR. LOTT: ON THE QUESTION OF RECOGNITION OF AN OKAY. I UNDERSTAND THE STATE'S POSITION

OUT-OF-STATE MARRIAGE, THE PLAINTIFFS APPEAR TO CITE AS THEIR SOLE AUTHORITY FOR THEIR ARGUMENT THE WINDSOR CASE. AND,

AGAIN, WINDSOR DOES NOT ESTABLISH A UNIVERSAL RIGHT ACROSS THE UNITED STATES FOR SAME-SEX MARRIAGE. THAT'S NOT WHAT THE CASE

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STANDS FOR. THE PLAINTIFFS DO NOT CITE TO THE SECTION TWO OF DOMA, WHICH IN THE WINDSOR CASE THE SUPREME COURT EXPRESSLY RECOGNIZED WAS STILL IN EFFECT. THE COURT SAID SECTION TWO OF

DOMA, WHICH HAS NOT BEEN CHALLENGED HERE, ALLOWS STATES TO REFUSE TO RECOGNIZE SAME-SEX MARRIAGE PERFORMED UNDER THE LAWS OF OTHER STATES. AGAIN, HERE THE PLAINTIFFS AREN'T EXPRESSLY

CHALLENGING SECTION TWO OF DOMA, AND THAT STATUTE IS STILL IN EFFECT AND IS STILL BINDING. WE'VE ALSO CITED TO THE COURT THE STANDARDS UNDER FULL FAITH AND CREDIT, WHICH IS ANOTHER AREA THAT THE PLAINTIFFS HAVE NOT EXPRESSLY RAISED, BUT I THINK IT'S INSTRUCTIVE TO SEE WHAT THE CASES STATE ABOUT THE REQUIREMENTS STATE TO STATE OF RECOGNIZING ANOTHER STATE'S LAWS. IN THE NEVADA VERSUS HALL CASE THE SUPREME COURT STATED THE FULL FAITH AND CREDIT CLAUSE DOES NOT REQUIRE A STATE TO APPLY ANOTHER STATE'S LAW IN VIOLATION OF ITS OWN LEGITIMATE PUBLIC POLICY. FULL FAITH AND CREDIT DOES NOT ENABLE ONE

STATE TO LEGISLATE FOR THE OTHER OR TO PROJECT ITS LAWS ACROSS STATE LINES SO AS TO PRECLUDE THE OTHER FROM PRESCRIBING FOR ITSELF THE LEGAL CONSEQUENCES OF ACTS WITHIN IT. IT'S UTAH'S

PUBLIC POLICY TO DEFINE MARRIAGE AS BETWEEN A MAN AND A WOMAN, AND IT'S ENTITLED TO HAVE ITS OWN PUBLIC POLICY AND ENFORCE ITS OWN LAWS IN THAT REGARD. THE COURT: AND IN RESPONSE TO MS. TOMSIC'S ARGUMENT

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THAT -- IT'S MS. ARCHER AND MS. CALL -- THAT THEY'RE IDENTICALLY SITUATED TO THE PLAINTIFF WINDSOR IN THE SUPREME COURT DECISION, YOU WOULD -- IT IS THE STATE'S POSITION THEY'RE NOT INSOFAR AS THE ISSUE THAT WAS PRESENTED WAS PROCEDURALLY DIFFERENT, AND THAT WAS THE QUESTION ABOUT THE FEDERAL GOVERNMENT INTERFERING WITH STATE REGULATIONS AS OPPOSED TO ONE STATE HAVING TO RECOGNIZE THE ACTIONS OF ANOTHER. THAT'S THE DISTINCTION YOU DRAW? MR. LOTT: RIGHT. THE WINDSOR CASE INVOLVED FEDERAL

RECOGNITION BETWEEN A STATE THAT HAS ADOPTED SAME-SEX MARRIAGE AS BEING LAWFUL WHERE THEY HAVE SAME-SEX COUPLES AND HETEROSEXUAL COUPLES. SO IT'S THE FEDERAL GOVERNMENT TOWARDS

ONE STATE VIEWING HOW IT'S GOING TO -- TO -- TO RECOGNIZE MARRIAGES, LAWFUL MARRIAGES. THE SITUATION IN THIS CASE IS VERY DIFFERENT. IT'S WHAT

IS UTAH'S RIGHT TO RECOGNIZE OR NOT A MARRIAGE FROM ANOTHER STATE. AND THERE ARE COROLLARIES THAT CAN BE LOOKED AT. IF A

MUSLIM PERSON FROM THE MIDDLE EAST THAT MAY HAVE THREE OR FOUR WIVES MOVES TO UTAH, WHERE HE LIVES POLYGAMY MAY BE ACCEPTED AS LAWFUL, BUT UTAH HAS NO REQUIREMENT TO ACCEPT THE POLYGAMIST MARRIAGES THAT HE HAS ENTERED INTO AS BEING ACCEPTED HERE IN UTAH. IF THE COURT HAS NO OTHER QUESTIONS REGARDING THE ISSUES I'VE RAISED, I'LL TURN THE TIME OVER TO MR. PURSER TO TALK ABOUT EQUAL PROTECTION.

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THE COURT: ON THIS POINT.

CAN YOU JUST -- I'VE READ YOUR BRIEFING

I THINK YOU POINT TO THE SUICIDE CASE AS THE

CASE THAT YOU THINK PROVIDES THE BEST GUIDANCE ABOUT HOW WE MOST PROPERLY DEFINE THE FUNDAMENTAL RIGHT THAT WE'RE TESTING. COULD YOU JUST SPEAK TO THAT BRIEFLY? DO YOU HAVE ANYTHING TO

ADD TO WHAT YOU SAID IN YOUR BRIEFING ABOUT THAT? MR. LOTT: WELL, THE SUICIDE CASE AND ALSO THE

WASHINGTON V. GLUCKSBERG CASE ITSELF -- AND THERE'S ANOTHER ONE. LET ME FIND MY NOTES ON THAT. THE COURT: MR. LOTT: RIGHT. THE POINT IS THAT WHEN YOU'RE DESCRIBING

A RIGHT THAT YOU'RE CLAIMING TO BE FUNDAMENTAL, IT HAS TO BE CAREFULLY DESCRIBED. OVERLY BROAD. IT HAS TO BE PRECISE. IT CAN'T BE

AND THE EXAMPLES FROM THESE CASES FROM THE

SUPREME COURT ILLUSTRATE THE PRECISION THAT THE RIGHT HAS TO BE DESCRIBED WITH. THE COURT: AND THE PROPER DEFINITION HERE BASED ON

THAT JURISPRUDENCE IN THE STATE'S VIEW IS WHETHER THERE IS A FUNDAMENTAL RIGHT OF SAME-SEX MARRIAGE? MR. LOTT: THAT'S CORRECT. AND THERE'S A DIFFERENCE DESCRIBING MARRIAGE

BETWEEN MARRIAGE AND SAME-SEX MARRIAGE.

AS BEING SOMETHING THAT IT'S ALWAYS BEEN ACCEPTED TO BE, A UNION BETWEEN A MAN AND A WOMAN, AND DESCRIBING IT AS THE UNION BETWEEN TWO PEOPLE OF THE SAME GENDER IS NOT -- IT'S NOT A CAREFUL DESCRIPTION TO CALL THEM THE SAME THING BECAUSE

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THEY'RE NOT. I HAVE THOSE CASES HERE IN MY NOTES. JUST A SECOND TO FIND THEM. THE COURT: MR. LOTT: SURE. TAKE WHAT TIME YOU NEED. IT WILL TAKE ME

IN THE GLUCKSBERG CASE THE ISSUE WAS

DEFINING A RIGHT TO DIE, AND THE RIGHT AT ISSUE WAS REALLY ASSERTED -- THE BROAD STATEMENT ASSERTED, SUCH AS A LIBERTY INTEREST IN DETERMINING THE TIME AND MANNER OF ONE'S DEATH OR THE RIGHT TO CHOOSE HUMANE -- A HUMANE, DIGNIFIED DEATH WERE REJECTED. AND THE MORE PRECISE FORMULATION THAT WAS REQUIRED

WAS WHETHER THE LIBERTY SPECIALLY PROTECTED BY THE DUE PROCESS CLAUSE INCLUDES A RIGHT TO COMMIT SUICIDE, WHICH ITSELF INCLUDES A RIGHT TO ASSISTANCE IN DOING SO. REQUIRED IS VERY, VERY STRICT. ALSO IN THE RENO CASE, RENO V. FLORES, THE SUPREME COURT DETERMINED THE RIGHT AT ISSUE IN A CHALLENGE TO A REGULATION GOVERNING THE RELEASE OF A DETAINED ALIEN -- DETAINED ALIEN JUVENILES WAS NOT THE -- THE BROAD RIGHT TO BE FREE FROM PHYSICAL RESTRAINT, BUT WAS THE NARROWER ALLEGED RIGHT OF A CHILD WHO HAS NO AVAILABLE PARENT, CLOSE RELATIVE, OR LEGAL GUARDIAN, AND FOR WHOM THE GOVERNMENT IS RESPONSIBLE, TO BE PLACED IN THE CUSTODY OF A WILLING AND ABLE PRIVATE CUSTODIAN RATHER THAN OF THE GOVERNMENT OPERATED OR GOVERNMENT SELECTED CHILD CARE INSTITUTION. THAT'S A VERY PRECISE DEFINITION OF WHAT THE FUNDAMENTAL THE PRECISION

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RIGHT IS THEY'RE LOOKING AT.

AND THE SAME PRECISION IS

REQUIRED HERE UNDER THE WASHINGTON V. GLUCKSBERG CASE. THE COURT: HOW WOULD THAT APPLY IN THE CONTEXT, FOR

EXAMPLE, OF -- I WAS THINKING ABOUT IT IN THE CONTEXT OF THE SECOND AMENDMENT RIGHT TO BEAR ARMS. ANALOGY. MAYBE THERE'S A BETTER ONE. MAYBE THIS IS NOT A GOOD HOW WOULD WE DEFINE THE

QUESTION HERE, IF WE WERE POSED WITH THE IDEA, WHETHER CITIZENS IN THIS STATE HAVE A FUNDAMENTAL RIGHT TO POSSESS HIGH-POWERED LASER-SIGHTED ASSAULT RIFLES? IS THERE A

FUNDAMENTAL RIGHT OF UTAH CITIZENS TO OWN THAT KIND OF WEAPON? MR. LOTT: WELL, I THINK POTENTIALLY THERE MAY BE A

DIFFERENCE BETWEEN AN ENUMERATED RIGHT SUCH AS THE RIGHT TO BEAR ARMS THAT'S AN EXPRESS RIGHT FROM THE BILL OF RIGHTS AND AN UNENUMERATED RIGHT, WHICH IS WHAT WE'RE TALKING ABOUT. I THINK THERE MAY BE SOME DISTINGUISHING ANALYSIS THERE. NOT SURE THAT POTENTIALLY THERE WOULD BE. I THINK THE POINT IS THOUGH THAT WHAT WE'RE TALKING ABOUT WITH THE WASHINGTON V. GLUCKSBERG ANALYSIS IS FINDING A NEW FUNDAMENTAL RIGHT. AND IF WE'RE TRYING TO DESCRIBE SOMETHING SO I'M

THAT'S NOT BEEN ACCEPTED AS A FUNDAMENTAL RIGHT BEFORE, THERE'S A DEGREE OF PRECISION IN DESCRIBING IT THAT'S REQUIRED. THE COURT: WEAPONS. I GUESS THAT'S WHY I WAS THINKING ABOUT

I MEAN NOBODY WOULD -- IT IS AN ENUMERATED RIGHT. BUT THE QUESTION PRESENTS THE

IT'S DIFFERENT IN THAT RESPECT.

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SAME PROBLEM, WHICH IS ONE OF DEFINITION. TO BEAR ARMS.

PEOPLE HAVE A RIGHT BUT THERE'S NOT

THE SUPREME COURT SAYS WE DO.

A CASE THAT SAYS YOU HAVE A RIGHT TO BEAR A LASER-SIGHTED ASSAULT RIFLE. AND SO WHAT DO WE MAKE OF THAT? AND DO WE

HAVE TO BE CAREFUL NOT TO DEFINE THE RIGHT SO NARROWLY THAT WE EXCLUDE BROAD CATEGORIES OF THINGS THAT ARE GENERALLY ACCEPTED? IS THAT TRUE? IS THAT WHAT WE TURN TO IS GENERAL

ACCEPTANCE? MR. LOTT: WELL, THAT'S THE SECOND PART OF THE AND THE

GLUCKSBERG ANALYSIS IS WHAT YOU'RE TALKING ABOUT.

SECOND PART REQUIRES THAT THE RIGHT BE DEEPLY, OBJECTIVELY ROOTED IN THE NATION'S HISTORY AND TRADITION. THE COURT: I THINK MR. PURSER AND I LIKELY WILL BE

TALKING ABOUT THAT, WILL WE? MR. LOTT: TOO. THE COURT: MR. LOTT: THAT'S RIGHT, SURE. BUT WE HAVE TO LOOK AT THE NATION'S WELL, IT'S PART OF DUE PROCESS ANALYSIS

HISTORY, AND WE HAVE TO LOOK OBJECTIVELY AT THE NATION'S HISTORY AND TRADITION AND WHETHER WHAT WE'RE TALKING ABOUT IS DEEPLY ROOTED OR NOT. SO CAREFUL -- CAREFUL DESCRIPTION AND

DEEPLY ROOTED WITH AN OBJECTIVE VIEW IN THE NATION'S HISTORY AND TRADITION. THE COURT: MR. LOTT: ALL RIGHT, THANK YOU. THANK YOU.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 QUESTIONS.

THE COURT: MR. PURSER:

GOOD AFTERNOON, MR. PURSER. GOOD AFTERNOON, YOUR HONOR. I'M

GENERALLY A QUIET TALKER. KNOW. THE COURT: MR. PURSER:

IF YOU CAN'T HEAR ME, JUST LET ME

I'LL BE SURE TO DO THAT. LET ME BEGIN. THE COURT IS OBVIOUSLY AS

AWARE OF BOTH PARTIES' ARGUMENTS AND THE APPLICABLE LAW. COUNSEL FOR THE PLAINTIFFS MENTIONED, I WILL TRY TO SPEAK

THROUGH MY PRESENTATION IN LIGHT OF THE COURT'S AWARENESS OF THE LAW AND THE ARGUMENTS, UNLESS THE COURT HAS PARTICULAR QUESTIONS ON ANY TOPIC. THE COURT: YOU KNOW, I DO HAVE ONE SET OF

IT WASN'T CLEAR TO ME FROM THE GOVERNMENT'S

BRIEFING, AND THIS RELATES TO THE EQUAL PROTECTION ARGUMENT, AND I WAS WONDERING -- I THINK I KNOW THE ANSWERS TO THESE QUESTIONS, BUT I DON'T SEE AN ANSWER ANYWHERE IN THE GOVERNMENT'S BRIEFS. THE PLAINTIFFS IN FURTHERANCE OF THEIR ARGUMENTS ON PAGE 14 OF THEIR OPENING BRIEF MAKE A COUPLE SPECIFIC STATEMENTS, AND THEY DRAW ON THE DECLARATIONS FROM THE PLAINTIFFS IN THIS CASE, AND I WONDERED WHAT THE STATE'S POSITION WAS ABOUT THEM. THE STATE'S BELIEF ABOUT WHETHER UTAH'S REFUSAL TO LET THE PLAINTIFFS MARRY THE PERSON OF THEIR CHOICE OR RECOGNIZE THEIR LEGAL MARRIAGE PERFORMED IN ANOTHER STATE RESULTS IN STIGMATIZING THE PLAINTIFFS AND THEIR FAMILIES AND SUBJECTING

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THEM TO SEVERE HUMILIATION, EMOTIONAL DISTRESS, PAIN AND PSYCHOLOGICAL HARM. THIS CASE OR NOT? MR. PURSER: WELL, IN THIS SENSE -- AND LET ME QUOTE THE FOURTEENTH IS THAT AN ISSUE THAT'S IN DISPUTE IN

FROM ROMER TO ANSWER THAT QUESTION.

AMENDMENT'S PROMISE THAT NO PERSON SHALL BE DENIED THE EQUAL PROTECTION OF THE LAWS MUST COEXIST WITH THE PRACTICAL NECESSITY THAT MOST LEGISLATION CLASSIFIES FOR ONE PURPOSE OR ANOTHER, WITH RESULTING DISADVANTAGE TO VARIOUS GROUPS OR PERSONS. SO THE FACT THAT UTAH HAS CHOSEN TO DEFINE MARRIAGE AS THE UNION OF BETWEEN A MAN AND A WOMAN NECESSARILY EXCLUDES ANY OTHER TYPE OF MARRIAGE. AND TO BE SURE, THOSE PEOPLE, BE

THEY SAME SEX COUPLES, POLYGAMISTS, OR WHATEVER TYPE OF MARRIAGE ONE MIGHT WANT TO ENVISION, ARE GOING TO BE DISPLEASED THAT THEY CANNOT PARTAKE OF MARRIAGE AS DEFINED BY UTAH. THE COURT: I'M JUST TRYING TO DETERMINE. YOU MAY

TELL ME, I THINK YOU WILL TELL ME, THAT IT'S IRRELEVANT TO THE COURT'S ANALYSIS. BUT IS IT IN DISPUTE IN THIS CASE THAT

PLAINTIFFS ARE AFFECTED IN THIS WAY BY THE APPLICATION OF UTAH'S LAWS? MR. PURSER: NO. FOR PURPOSES OF OUR ARGUMENT WE'RE

NOT DISPUTING, NOR CAN -- ARE WE IN A POSITION TO TELL THEM HOW THEY FEEL ABOUT A PARTICULAR LAW, MUCH LESS THIS LAW.

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THE COURT:

IS IT THE -- DOES THE STATE HAVE A VIEW

ABOUT WHETHER OTHER SIMILARLY SITUATED INDIVIDUALS SUFFER THESE CONSEQUENCES FROM THE STATE'S LAW? MR. PURSER: THE COURT: MR. PURSER: JUDGMENT, YOUR HONOR. NO, IT'S NOT IN DISPUTE. IS IT IN DISPUTE -I MEAN FOR PURPOSES OF SUMMARY IF FOR SOME REASON THIS GOES BEYOND

SUMMARY JUDGMENT, WE RESERVE THE RIGHT TO DISPUTE THAT AS NEEDED. THE COURT: IS IT DISPUTED THAT THE OPERATION OF

UTAH'S LAWS IN THIS CASE DEPRIVE THE PLAINTIFFS AND THEIR FAMILIES OF THE SAME DIGNITY, RESPECT AND STATURE AFFORDED TO OFFICIALLY RECOGNIZED OPPOSITE-SEX FAMILY RELATIONSHIPS? THAT DISPUTED AT THIS STAGE? MR. PURSER: NO, THERE'S NO QUESTION THAT THE IS

BENEFITS AND ADVANTAGES OF MARRIAGE DO NOT APPLY TO THOSE WHO ARE NOT MARRIED. THE COURT: AND I THINK THE THIRD POINT THAT THE

PLAINTIFFS MAKE IN THEIR BRIEF IN THIS PASSAGE IS THAT THE OPERATION OF THE STATE'S LAWS DEPRIVE THE PLAINTIFFS OF ALL THE RIGHTS, PROTECTIONS AND BENEFITS THAT FLOW AS A MATTER OF COURSE TO MARRIED HETEROSEXUAL COUPLES UNDER UTAH STATE LAW AND FEDERAL LAW. I THINK YOUR ANSWER TO THAT IS, WELL, THAT'S

THE -- THAT'S THE POINT. MR. PURSER: PARTIALLY YES, BUT IT'S ALSO IMPORTANT

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TO NOTE -- I HAVEN'T QUANTIFIED THE NUMBER, BUT THERE'S MANY BENEFITS OR ADVANTAGES, OR CALL THEM WHAT YOU WILL, OF MARRIAGE THAT MAY FLOW AUTOMATICALLY FROM MARRIAGE BUT ARE NOT DENIED TO OTHERS. YOU CAN WRITE A WILL, YOU CAN DO -- ASSIGN YOU CAN AGREE -- TWO

BENEFITS, YOU CAN ENTER INTO A CONTRACT.

PRIVATE PEOPLE CAN ENTER INTO A CONTRACT THAT SAYS THIS IS THE WAY WE'RE GOING TO REGULATE OUR RELATIONSHIP, AND IF THE RELATIONSHIP ENDS, THESE ARE THE TERMS UPON WHICH IT'S GOING TO END. SO MANY OF THOSE ITEMS ARE AVAILABLE PROVIDED THAT

THE PARTIES ARRANGE THEIR RELATIONSHIP AS SUCH. THE COURT: BUT TO CIRCLE BACK AROUND AND CLOSE THIS

LOOP, I THINK THE STATE'S POSITION IS HARMS FLOW FROM THE OPERATION OF OUR LAWS AND THAT'S NOT RELEVANT TO THE CONSTITUTIONAL ANALYSIS THAT THE COURT NEEDS TO UNDERTAKE. THAT TRUE? MR. PURSER: RIGHT. THAT'S A FUNCTION, AS ROMER IS

REITERATED, AND HAS BEEN EMPHASIZED MANY TIMES BY THE SUPREME COURT, THAT'S THE NATURE OF LEGISLATION, TO DRAW LINES AND MAKE CLASSIFICATIONS. OF COURSE IN EQUAL PROTECTION THE FIRST STEP IS TO DETERMINE THE LEVEL OF SCRUTINY. AS THE COURT'S ALREADY

POINTED OUT, THERE'S BINDING TENTH CIRCUIT LAW THAT SAYS SEXUAL ORIENTATION CLASSIFICATIONS ARE GOVERNED BY RATIONAL BASIS. IN ADDITION TO THAT, AS WE POINT OUT IN OUR BRIEF, EVEN

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IF FOR SOME REASON THE COURT WERE TO VIEW THAT NOT AS BINDING LAW, THERE ARE GOOD REASONS NOT TO GO BEYOND THAT AND MAKE SEXUAL ORIENTATION A QUASI-SUSPECT CLASS AS PLAINTIFFS ARGUE. FIRST AND FOREMOST IS THE FACT THAT THE SUPREME COURT HASN'T DONE SO IN ALMOST 40 YEARS, AND THE SUPREME COURT IN WINDSOR WAS EXPRESSLY INVITED TO DO SO. THE SECOND CIRCUIT DID IT. THE UNITED STATES ASKED

MS. WINDSOR ASKED THE COURT TO DO IT. THE COURT TO DO IT.

AMICI, AS PLAINTIFFS POINTED OUT, ASKED I

THE COURT TO DO IT, AND YET THE COURT STILL DID NOT DO IT. THINK THAT IN AND OF ITSELF IS -- PROVIDES AN IMPORTANT

RESTRAINT, IN ADDITION TO THE FACT THAT THERE IS BINDING TENTH CIRCUIT LAW REQUIRING THE APPLICATION OF RATIONAL BASIS SCRUTINY. JUST QUICKLY TWO POINTS THAT PLAINTIFFS MADE THAT I'LL JUST ADDRESS. WE DO ADDRESS ALL THE FACTORS THAT THE COURT

TRADITIONALLY LOOKS AT OR MIGHT LOOK AT IN DECIDING WHETHER A PARTICULAR CLASS MERITS HEIGHTENED SCRUTINY. WE DISAGREE ON

THE WORDING OF SOME OF THOSE FACTORS, AND THAT MAY BE WHAT THEY'RE REFERRING TO, BUT WE CERTAINLY ADDRESS ALL THE FACTORS. AND I DID WANT TO IN PARTICULAR NOTE -THE COURT: STATE? MR. PURSER: THE COURT: ALL FOUR FACTORS? THE GLUCKSBERG FACTORS. ARE ALL FOUR OF THEM IN DISPUTE BY THE

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MR. PURSER:

GLUCKSBERG HAS TO DO WITH DUE PROCESS

AND WHETHER SOMEONE -- WHETHER AN ALLEGED RIGHT IS FUNDAMENTAL. THESE FACTORS THAT PERTAIN TO WHETHER A CLASS IT'S

IS -- DESERVES HEIGHTENED SCRUTINY ARE DIFFERENT.

WHETHER THE CLASS IS -- HAS ANY POLITICAL POWER, THOSE -THE COURT: MR. PURSER: THE COURT: MR. PURSER: THE COURT: HAS BEEN SUBJECT TO DISCRIMINATION -RIGHT. -- IS DIFFERENT IN SOME MATERIAL -IMMUTABLE. RIGHT. ARE THOSE FOUR FACTORS IN

WHICH OF THOSE FOUR FACTORS DOES THE STATE THINK IS

NOT SATISFIED HERE? MR. PURSER: WELL, LET ME JUST FOCUS ON THE FIRST THE

OUR BRIEF POINTS OUT WE ARGUE ALL FOUR OF THEM.

PLAINTIFFS ARGUE THAT THE POLITICAL POWER OF A PARTICULAR GROUP IS NOT RELEVANT. THEY GET THAT FROM THE SECOND CIRCUIT,

AS I READ THE SECOND CIRCUIT'S OPINION, THAT FROM JUSTICE MARSHALL'S CONCURRING OPINION. IN FACT WHEN YOU LOOK, YOU

TRACE THE ORIGINS OF, YOU KNOW, THREE TIERED SCRUTINY UNDER EQUAL PROTECTION BACK TO THE START, YOU KNOW, FOOTNOTE FOUR FROM (INAUDIBLE) -(THE REPORTER ASKED COUNSEL TO REPEAT) THE COURT: MR. PURSER: FOOTNOTE FOUR FROM CAROLENE PRODUCTS. YEAH, EMPHASIZES THAT THE POINT OF

APPLYING A HIGHER LEVEL OF SCRUTINY IS BECAUSE A DISCRETE AND

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INSULAR MINORITY MIGHT NOT BE ABLE TO PROTECT ITSELF IN THE DEMOCRATIC PROCESS. SAN ANTONIO SCHOOL DISTRICT VERSUS POLITICAL POWER IS VERY

RODRIGUEZ MAKES THE SAME POINT. IMPORTANT.

IF THE GROUP HAS THE POWER, AS SEXUAL ORIENTATION

DOES, TO PROTECT ITSELF POLITICALLY AND SCORE NOTABLE LEGISLATIVE VICTORIES AND ATTRACT THE ATTENTION OF THE PRESIDENT, AND NOT JUST THE ATTENTION BUT THE FAVOR -- THE FAVORABLE VIEWS OF THE PRESIDENT AND THE VICE PRESIDENT, THE SENATE MAJORITY LEADER, THE D.O.J., REPEALING DON'T ASK, DON'T TELL, ALL THE THINGS WE MENTIONED IN OUR BRIEF, IT'S CLEAR THAT THE DEMOCRATIC PROCESS IS WORKING. BATTLE? NO. DO THEY WIN EVERY THEY HAVE THE

BUT I'M NOT SURE ANYBODY DOES.

POLITICAL POWER.

THERE'S NO REASON FOR A COURT TO INJECT

ITSELF AND APPLY A HIGHER LEVEL OF SCRUTINY TO TAKE THIS ISSUE OUTSIDE THE BOUNDS OF THE NORMAL WORKINGS OF THE POLITICAL PROCESS. WE -- I DID WANT TO NOTE THAT THE PLAINTIFFS ACCUSE US OF SOME INSENSITIVITY AS TO THE HISTORY OF DISCRIMINATION. CERTAINLY DON'T DISPUTE THAT DISCRIMINATION HAS GONE ON. WE THE

POINT IN OUR BRIEF, I BELIEVE THE STATEMENT THEY TAKE ISSUE WITH, IS SIMPLY A QUOTE FROM THEIR EXPERT IN A BOOK THAT HE WROTE. WE MEAN NO HARM OR INSENSITIVITY BY -- BY NOTING THAT

AS RELATIVE TO OTHER FORMS OF DISCRIMINATION AGAINST OTHER GROUPS, THAT DISCRIMINATION AGAINST GAYS AND LESBIANS HAS BEEN RELATIVELY CONFINED TO THE 20TH CENTURY.

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THE COURT:

YOU THINK IT'S INSUFFICIENT TO SATISFY

THAT FIRST PRONG OF THE FOUR PRONG ANALYSIS WHETHER THE GROUP AT ISSUE, THE CLASS AT ISSUE, HAS BEEN SUBJECT TO DISCRIMINATION -MR. PURSER: THE COURT: YES. -- BASED ON THEIR MEMBERSHIP IN THAT

IT'S INSUFFICIENT IN YOUR VIEW TO SATISFY THE FIRST

MR. PURSER: THE COURT: MR. PURSER:

THAT HISTORY OF DISCRIMINATION, YEAH. OKAY. AND THEN ALSO ADDRESS THE PLAINTIFFS I WANT TO EMPHASIZE THAT IT DOES

SEEM TO MAKE MUCH OF WINDSOR.

WINDSOR DOES NOT CHANGE THE RATIONAL BASIS REVIEW. NOT CREATE A SEPARATE TYPE OF REVIEW FOR THIS ISSUE. THE COURT:

WHAT LEVEL OF REVIEW DID THE MAJORITY

APPLY IN WINDSOR IN ITS EQUAL PROTECTION ANALYSIS? MR. PURSER: YOU KNOW, AS THE COURT NOTED BEFORE, NO

MATTER HOW MANY TIMES I READ WINDSOR, IT'S NOT EXACTLY CLEAR TO ME -THE COURT: MR. PURSER: I'M GLAD I'M NOT THE ONLY ONE. BUT THEY THEMSELVES, THE -- SOME OF THE

MOST CONCRETE STATEMENTS ABOUT WHAT THEY'RE DOING SEEMED TO REST ON THE DUE PROCESS CLAUSE AND THE LIBERTY INTEREST, THAT -- THAT THOSE WHO ARE VALIDLY MARRIED UNDER THE LAWS OF NEW YORK HAVE IN MAINTAINING THEIR MARRIAGE, NOTWITHSTANDING

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THE FEDERAL GOVERNMENT'S ATTEMPT TO DENY THE VALIDITY OF THAT MARRIAGE. TO THE EXTENT THAT YOU CAN READ WINDSOR AS APPLYING EQUAL PROTECTION PRINCIPLES, IT USES LANGUAGE LIKE NO LEGITIMATE PURPOSE, WHICH IS THE LANGUAGE OF RATIONAL BASIS REVIEW. I'LL

SIMPLY JUST EMPHASIZE THAT THE PHRASE CAREFUL CONSIDERATION WAS USED BY THE COURT AND BY PLAINTIFFS, BUT IF YOU LOOK AT THAT IN ROMER AND IN WINDSOR, THIS CAREFUL CONSIDERATION LEVEL OF REVIEW ONLY APPLIES TO UNUSUAL DEVIATIONS. IN WINDSOR IT

WAS UNUSUAL, AS THE COURT WENT TO PAINS TO POINT OUT, FOR THE FEDERAL GOVERNMENT TO DENY THE VALIDITY OF A MARRIAGE THAT THE STATE HAD SAID WAS VALID. IN ROMER THE UNUSUAL DEVIATION WAS

A STATE AMENDMENT TO THE CONSTITUTION TO WITHDRAW PROTECTIONS THAT HAD ALREADY BEEN GIVEN TO SEXUAL ORIENTATION. THERE'S NOTHING UNUSUAL ABOUT WHAT UTAH IS DOING HERE. IT'S THE VERY EPITOME OF WHAT USUAL IS UNDER THE WINDSOR DECISION FOR A STATE TO USE ITS HISTORIC AND CONSTITUTIONAL PREROGATIVE TO DEFINE MARRIAGE. ALSO, PLAINTIFFS SEEM TO SUGGEST IN WINDSOR THAT IT CREATES A SPECIAL ANIMUS ANALYSIS THAT THE STATE DISAGREES WITH THAT. ANIMUS IN ROMER AND WINDSOR IS SIMPLY THE AS THE

CONCLUSION WHEN NO OTHER RATIONAL BASIS IS FOUND.

COURT SAID, THERE IS NO LEGITIMATE -- THERE IS NO LEGITIMATE PURPOSE FOR DOMA, THEREFORE, WE FIND IT, YOU KNOW, TO BE BASED ON ANIMUS. AND, AGAIN, THE COURT SAID -- YOU KNOW, THE

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PLAINTIFFS QUOTE THAT DESIGN, EFFECT AND PURPOSE OF THE LAW. THE COURT EMPHASIZED OVER AND OVER THAT THE MOST POWERFUL EVIDENCE OF THAT WAS DOMA'S UNUSUAL DEVIATION FROM TRADITIONAL DEFERENCE TO THE STATE'S ABILITY TO DEFINE MARRIAGE. THE COURT: DO YOU AGREE WITH MS. TOMSIC THAT I AM

REQUIRED TO EVALUATE THE DESIGN, EFFECT AND PURPOSE OF THESE LAWS? MR. PURSER: WELL, WE ARGUE -- WE DON'T THINK DOMA

CHANGED THE LAW AS TO RATIONAL BASIS REVIEW. THE COURT: NO. I MEAN THE QUESTION THOUGH IS

WHETHER JUSTICE KENNEDY IN THE MAJORITY OPINION DIRECTS TRIAL COURTS TO LOOK. I THINK THE QUOTE IS IT'S THE STARTING POINT

OF OUR ANALYSIS TO LOOK AT THE DESIGN, EFFECT AND PURPOSE OF THE CHALLENGED LAW. DO YOU THINK THAT'S PROPER HERE? YEAH, WE THINK THE COURT CAN DO THAT, AS OPPOSED TO DOMA

MR. PURSER:

AND IT DOESN'T CHANGE THE ANALYSIS AT ALL.

HERE, THIS IS ONCE AGAIN A STATE DEFINING MARRIAGE PURSUANT TO ITS HISTORIC AND CONSTITUTIONAL PREROGATIVE. THE FACT THAT THE STATE DEFINES MARRIAGE AS BETWEEN A MAN AND A WOMAN DOES NOT MEAN THAT EVERYONE WHO VOTED FOR THAT LAW HATES EVERYONE ELSE THAT DOESN'T COME WITHIN THE TERMS OF THAT DEFINITION OF MARRIAGE. AND AS THE COURT IN NEW YORK NOTED,

THE HERNANDEZ OPINION, GIVEN THE HISTORY AND PREVALENCE OF THE TRADITIONAL DEFINITION OF MARRIAGE, TO CONCLUDE THAT UTAH OR ANY OTHER STATE THAT HAS THIS DEFINITION OF MARRIAGE THAT IT

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WAS MOTIVATED BY BIGOTRY OR ANIMUS OR PREJUDICE, THE COURT WOULD VIRTUALLY HAVE TO CONCLUDE THAT EVERYONE SINCE THE HISTORY OF THE WORLD, EVERY GOVERNMENT AND EVERY PERSON, IS A BIGOT AND IRRATIONAL AND PREJUDICED TOWARDS HOMOSEXUALS, AND THAT'S -- THAT'S JUST IMPLAUSIBLE. AROUND FOR AGES. THIS DEFINITION HAS BEEN

AND THE FACT THAT UTAH CHOSE TO

CONSTITUTIONALIZE A PREEXISTING COMMON LAW DEFINITION OF MARRIAGE DOESN'T SUGGEST THAT THEY WERE MOTIVATED BY ANIMUS. THE COURT: WHEN I LOOK AT THE DESIGN AND PURPOSE

ESPECIALLY OF THESE CHALLENGED LAWS, WHAT SHOULD I LOOK TO? MR. PURSER: THE LAWS. WELL, YOU CAN LOOK TO THE LANGUAGE OF

THEY SIMPLY DEFINE MARRIAGE AS THE UNION BETWEEN A

MAN AND A WOMAN, AND THEN PRECLUDE ANY ATTEMPTS TO MAKE AN END-RUN AROUND THAT DEFINITION. THE COURT: IS THERE ANY OTHER EVIDENCE I SHOULD

CONSIDER IN EVALUATING THE PURPOSE AND DESIGN OF THE LAWS? MR. PURSER: I MEAN THE COURT CAN LOOK AT -- THE I

PLAINTIFFS HAVE QUOTED STATEMENTS FROM THE FLOOR DEBATE. THINK THOSE ARE AVAILABLE ONLINE. THE COURT CAN CERTAINLY

TAKE JUDICIAL NOTICE AND LISTEN TO A FULLER AND MORE FAIR DISCUSSION OF REASONS WHY ANY PARTICULAR LEGISLATOR CHOSE TO VOTE IN FAVOR OF THE LAW. BUT AS THE COURT'S NOTICED, THERE'S TWO COMPONENTS HERE. THERE'S WHAT THE LEGISLATOR DID -- THERE'S WHAT THE LEGISLATURE DID, THE GOVERNOR VOTED IN FAVOR OF IT, AND THEN

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IT WAS PASSED BY ROUGHLY 66 PERCENT OF UTAH'S POPULATION.

THE

PLAINTIFFS HAVE NOT POINTED TO ANYTHING, AND I SUBMIT THERE IS NOTHING IN EITHER THE LEGISLATIVE HISTORY OR IN THE VOTER PAMPHLET THAT INDICATES THAT EVERYONE THAT VOTED IN FAVOR OF THIS LAW, BE THEY LEGISLATORS OR THE GOVERNOR OR THE POPULACE, WERE MOTIVATED BY PREJUDICE OR FEAR OR ANIMUS OR ANY OTHER ALLEGEDLY IMPROPER BASIS. I MEAN IN FACT I'LL QUOTE A PARAGRAPH FROM THE VOTER PAMPHLET THAT BOTH SIDES QUOTE IN THEIR BRIEFING, NOT TO SAY THIS WAS THE MOTIVATION OF EVERYONE THAT VOTED FOR THE LAW, BUT ON PAGE 153 OF THE RECORD PAGE 36 OF THE VOTER PAMPHLET IT SAYS THIS AMENDMENT DOES NOT PROMOTE INTOLERANCE, HATRED OR BIGOTRY. EARLIER THIS YEAR THE FEDERAL ELEVENTH CIRCUIT

COURT OF APPEALS UPHELD FLORIDA'S BAN ON HOMOSEXUAL ADOPTIONS. THE COURT UNEQUIVOCALLY RECOGNIZED GOVERNMENT'S STRONG INTEREST IN MAINTAINING PUBLIC MORALITY, THE JUSTIFIED PREFERENCE FOR HETERO -- FOR HETEROSEXUAL MARRIAGE WITH ITS CAPACITY TO PERPETUATE THE HUMAN RACE AND THE IMPORTANCE OF RAISING CHILDREN IN THAT PREFERRED RELATIONSHIP. THIS

AMENDMENT PRESERVES THAT SAME HISTORIC UNDERSTANDING OF MARRIAGE AND THE ABILITY OF UTAHNS TO GOVERN THEMSELVES. DON'T THINK THAT SHOWS ANY SORT OF ANIMUS OR INTENT TO DISCRIMINATE. AND THE OTHER POINT THAT YOUR HONOR MENTIONED BEFORE IS EVEN IF THE COURT COULD FIND SOME LEVEL, SOME INDICIA OF I

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ANIMUS OR PREJUDICE OR WHATNOT, THAT DOESN'T SOLVE THE QUESTION. THE SUPREME COURT PRECEDENT IS CLEAR THAT EVEN IF

THERE'S AN IMPROPER MOTIVE, SO LONG AS THERE'S SOME OTHER RATIONAL BASIS FOR THE LAW, THE LAW IS CONSTITUTIONAL. THE COURT: THAT'S CLEARLY THE LAW IF WE ARE SO LET'S TALK ABOUT

APPLYING A RATIONAL BASIS STANDARD. RATIONAL BASIS FOR A MOMENT.

DO THE RATIONALES ASSERTED BY

THE STATE HAVE A RATIONAL BASIS, A RATIONAL CONNECTION TO THE CHALLENGED LAWS? I FEEL LIKE I BUTCHERED THAT. I'M WONDERING

IF THERE'S A CONNECTION BETWEEN WHAT YOU'VE OFFERED AS THE RATIONAL BASIS TO SUPPORT THE LAW AND THE EFFECT OF THE LAWS? MR. PURSER: YES. AS NUMEROUS COURTS HAVE HELD,

YOUR HONOR, THE DEFINITION OF MARRIAGE BETWEEN A MAN AND A WOMAN IS RATIONALLY CONNECTED TO LEGITIMATE STATE INTERESTS, AND THOSE COURTS HAVE FOUND THAT -THE COURT: MR. PURSER: HONOR. NUMEROUS COURTS HAVE MADE THAT FINDING? YEAH, WE CITED THEM IN OUR BRIEF, YOUR

WE -- THE INTERESTS THAT THE STATE HAS ASSERTED

INCLUDE RESPONSIBLE PROCREATION, AND MARRIAGE PROMOTES THE IDEAL MODE OF CHILD REARING BY A BIOLOGICAL MOTHER AND FATHER. AND, AGAIN, NUMEROUS OTHER COURTS HAVE FOUND THOSE TO BE RATIONAL BASIS FOR MARRIAGE. THE COURT: HOW DOES EXCLUDING SAME-SEX COUPLES FROM

MARRYING IMPACT PROCREATION AMONG HETEROSEXUAL COUPLES? MR. PURSER: IT'S A GOOD QUESTION, YOUR HONOR. IT'S

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NOT RELEVANT.

IT'S GOOD BECAUSE IT SEGUES INTO A POINT THAT

THAT'S NOT THE RIGHT ANALYSIS. THE COURT: MR. PURSER: OKAY. AS THE COURT QUOTED EARLIER THE

LANGUAGE FROM JOHNSON V. ROBISON THAT THE INCLUSION OF ONE GROUP PROMOTES A -- THAT WHEN THE INCLUSION OF ONE GROUP PROMOTES A LEGITIMATE GOVERNMENTAL PURPOSE AND THE ADDITION OTHER GROUPS WOULD NOT, THE CLASSIFICATION WILL BE UPHELD. THE COURT: WELL, I WONDERED ABOUT THAT IN THIS

CASE, AND I WONDERED IF THAT WASN'T SOMETHING MORE DIRECTED -FOR EXAMPLE, I COULD IMAGINE A LAWSUIT CHALLENGING THE STATE'S DECISION TO PROVIDE A CHILD TAX CREDIT FOR COUPLES WHO BEAR A CHILD. SAME-SEX COUPLES, I COULD IMAGINE THE SAME-SEX COUPLE

COMING FORWARD AND CHALLENGING THAT SAYING, WAIT A SECOND, WE'RE INCAPABLE OF THAT. UNFAIRLY. SECOND. THAT LAW DISCRIMINATES AGAINST US

AND I COULD SEE THE STATE SAYING, WELL, WAIT A

WE WANT TO HAVE CHILDREN, SO WE'RE PROVIDING AN THAT

INCENTIVE FOR PEOPLE WHO CAN HAVE CHILDREN TO HAVE THEM. SEEMS TO ME A DIFFERENT QUESTION THAN THE OPERATION HERE. I DON'T -- IS THERE ANY RELEVANCE AT ALL TO WHETHER SAME-SEX PEOPLE MARRY OR DON'T MARRY IN TERMS OF WHETHER HETEROSEXUAL COUPLES HAVE CHILDREN OR DON'T HAVE CHILDREN? MR. PURSER:

AGAIN, THAT'S NOT THE ISSUE, AND IT'S

NOT SOMETHING THE STATE HAS TO PROVE OR NECESSARILY COULD SHOW AT THIS POINT.

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THE COURT:

IS IT YOUR POSITION THAT THERE'S ANY

MR. PURSER:

WELL, AS JUSTICE ALITO NOTED IN THE AND THAT'S PART

DISSENT IN THE WINDSOR CASE, WE DON'T KNOW. OF THE ISSUE.

YOU CAN'T MAKE A CHANGE TO A FUNDAMENTAL SOCIAL

ISSUE AND PREDICT, HEY, I KNOW THIS IS GOING TO HAPPEN, OR TAKE A FIVE YEAR SEGMENT OF TIME, AS THE PLAINTIFFS WANT TO DO AND SAY, OH, THIS IS DISPOSITIVE ON WHAT'S HAPPENING OR NOT HAPPENING. THE EFFECTS OF SOCIAL -- OF CHANGES TO SOCIAL THERE MAY -- AND IT MAY IT MAY END UP THAT THERE

INSTITUTIONS REQUIRE TIME TO TELL. END UP THAT THERE IS NO DIFFERENCE. IS. WE JUST SIMPLY DON'T KNOW. THE COURT:

THE STATE DOESN'T HAVE SOME

RESPONSIBILITY YOU DON'T THINK TO COME FORWARD WITH AN EXPLANATION THAT BEARS SOME CORRELATION, SOME RATIONAL BASIS THAT BEARS SOME CORRELATION BETWEEN THE THING -- THE CHALLENGED LAW AND THE BASES PUT FORTH IN SUPPORT OF THAT CHALLENGED LAW? I MEAN, FOR EXAMPLE, THERE'S A DIFFERENCE, IT SEEMS TO ME -- I WOULD LIKE YOUR INSIGHT -- BETWEEN MY EXAMPLE WHERE THERE'S AN AFFIRMATIVE TAX BENEFIT PROVIDED FOR EXAMPLE. THAT

SEEMS TO HAVE SOME RELATIONSHIP TO AN INTEREST THAT A STATE MIGHT HAVE TO INCREASE PROCREATION AND CHILDBIRTH AND POPULATION GROWTH AND WHAT HAVE YOU. AND I UNDERSTAND THAT'S THERE'S A

NOT THE ONLY BASIS PUT FORWARD BY THE STATE HERE.

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RELATIONSHIP THERE.

DOES THE STATE NOT HAVE TO SHOW SOME

RELATIONSHIP BETWEEN ITS DEFINITION OF MARRIAGE HERE AND THAT STATE INTEREST? MR. PURSER: IT DOES. THE TEST IS IS THE

CLASSIFICATION RATIONALLY RELATED TO A LEGITIMATE STATE INTEREST. WE'VE IDENTIFIED THE STATE INTEREST IN RESPONSIBLE AND AS

PROCREATION AND THE IDEAL MODE OF CHILD REARING.

NUMEROUS OTHER COURTS HAVE HELD, THE DEFINITION OF MARRIAGE AS BETWEEN A MAN AND A WOMAN IS RATIONALLY RELATED TO THAT INTEREST, PROVIDING THE -THE COURT: IS IT RELATED? MR. PURSER: PROVIDING THE INCENTIVES AND BENEFITS HOW IS IT? THAT'S WHAT I'M ASKING. HOW

OF MARRIAGE ENCOURAGE -- ENCOURAGES THE FORMATION OF STABLE, LONG-TERM RELATIONSHIPS BETWEEN A MOTHER AND FATHER, WHEREIN IF THEY DO HAVE A CHILD, PARTICULARLY AN UNINTENDED BIRTH, THEY WILL CARE FOR THAT CHILD IDEALLY. HAPPEN, AND THEN THE STATE STEPS IN. THAT DOESN'T ALWAYS BUT THAT NOT ONLY

BENEFITS THE CHILD BUT BENEFITS SOCIETY BY NOT PUTTING THE BURDEN ON SOCIETY OF RAISING THAT CHILD. THE COURT: THAT ANSWER. OKAY. SO LET'S GO TO THE FIRST PART OF I'M TRYING TO

I'M NOT TRYING TO BE DIFFICULT.

SEE IF WE -- IF I UNDERSTAND YOUR ANSWER.

I UNDERSTAND THAT'S

A BENEFIT THAT THE STATE SUBMITS WE GET FROM HETEROSEXUAL MARRIAGE AND PROCREATION AND HAVING CHILDREN.

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IS THE UNDERLYING ASSUMPTION THAT BY NOT PERMITTING SAME-SEX MARRIAGE THAT SOME OF THOSE PEOPLE THAT WOULD OTHERWISE ENGAGE IN SAME-SEX MARRIAGE WILL INSTEAD CHOOSE TO ENGAGE IN A HETEROSEXUAL RELATIONSHIP AND MARRIAGE AND THEREBY PROCREATE? MR. PURSER: WELL, SOME COURTS HAVE FOUND THAT IN I BELIEVE THE

FACT A STATE COULD RATIONALLY BELIEVE THAT. NEVADA DISTRICT COURT FOUND THAT. THE ANALYSIS HERE.

BUT IT'S NOT NECESSARY TO

THE QUESTION IS WHETHER THE DEFINITION OF

MARRIAGE AS BETWEEN A MAN AND A WOMAN IS RATIONALLY RELATED TO LEGITIMATE STATE INTEREST, AND IT IS. THE COURT: FRONT OF US. I DON'T THINK THAT'S THE QUESTION IN

I THINK WE ARE SUPPOSED TO FOCUS ON THE WE'RE

CHALLENGED LAW, AND I THINK THAT -- WELL, EXCUSE ME. SAYING THE SAME THING. COIN.

I THINK IT'S TWO SIDES OF THE SAME I SUPPOSE THAT IS THE QUESTION.

I AGREE WITH YOU.

DOES THERE NOT NEED TO BE SOME RELATION -- WELL, I GUESS I'M BACK TO WHERE I STARTED. HOW IS IT BY EXCLUDING SAME-SEX

COUPLES FROM MARRIAGE YOU ARE INCREASING PROCREATION? MR. PURSER: THE COURT: THE COURT: YOUR HONOR, THAT'S NOT THE QUESTION. OKAY. ALL RIGHT. WE CAN MOVE ON IF YOU'RE NOT

GOING TO ANSWER THAT QUESTION. POSITION. MR. PURSER:

I UNDERSTAND THE STATE'S

WELL, THERE'S TWO --

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THE COURT: MR. PURSER:

IT'S NOT RELEVANT, I UNDERSTAND. IT'S NOT RELEVANT AND, TWO, AS I COULD IT BE THAT

MENTIONED BEFORE, WE DON'T KNOW YET.

ALLOWING SAME-SEX COUPLES TO MARRY, MAYBE IN A GENERATION WE'LL FIND OUT FOR SURE, NO, THERE'S ABSOLUTELY NO AFFECT WHATSOEVER, OR WE'LL FIND OUT, WELL, YEAH, THERE IS AN AFFECT. WE CAN'T KNOW WHEN MOST OF THE STATES I BELIEVE HAVE -- THAT HAVE ALLOWED SAME-SEX MARRIAGE HAVE DONE SO JUST WITHIN THE LAST COUPLE OF YEARS. WE CAN'T KNOW WHAT AFFECT THAT'S GOING

TO HAVE ON SOCIETY OR ON THE INSTITUTION OF TRADITIONAL MARRIAGE, AND IT'S NOT THE STATE'S BURDEN TO PROVE THAT. THE COURT: OKAY. I THINK YOU ALSO TOUCHED ON THE

SECOND PART OF THIS DISCUSSION WE'VE BEEN HAVING IN YOUR BRIEFING, BUT COULD YOU JUST ARTICULATE AND SEE IF THERE'S ANYTHING MORE YOU'D ADD TO THIS. RIGHT. I WANT TO SEE IF I HAVE IT

I THINK THE ARGUMENT IS THAT DEFINING MARRIAGE AS

BETWEEN A MAN AND A WOMAN PROMOTES THE STATE INTEREST IN PROCREATION. SO THEN I'M WONDERING ABOUT HOW THE -EXCUSE ME. IT'S IN RESPONSIBLE

MR. PURSER: PROCREATION. THE COURT: MR. PURSER:

RESPONSIBLE. THE STATE DOESN'T HAVE AN INTEREST IN IT DOES HAVE AN INTEREST, AND AS

WILLY-NILLY PROCREATION.

MANY COURTS WE CITED, PROBABLY TOO MANY CASES TO THE COURT, THE STATE'S INTEREST IS IN RESPONSIBLE PROCREATION AND ORDERLY

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REPRODUCTION OF SOCIETY.

THAT'S THE BASIS FOR WHICH SOCIETY

PROGRESSES, IS MAINTAINED AND -THE COURT: AND SAME-SEX MARRIAGE DOES NOT PROMOTE

THAT BASES, THAT POLICY, THAT STATE POLICY, THAT STATE INTEREST? MR. PURSER: THE COURT: YEAH, THAT'S OUR ARGUMENT. SO HOW DOES THE SECOND PART OF THE I

STATE'S RATIONALE APPLY THEN, RESPONSIBLE CHILD REARING?

MEAN IF THEY'RE NOT HAVING CHILDREN -- OF COURSE THEY ARE, BUT IF THEY'RE NOT HAVING CHILDREN, IF THAT DOESN'T PROMOTE CHILDBIRTH, THEN WHAT'S THE RELATIONSHIP BETWEEN CHILD REARING AND THE CHALLENGED LAW? MR. PURSER: WELL, THE STATE -- AGAIN, THE STATE HAS

AN INTEREST IN THE WELFARE AND WELL-BEING OF CHILDREN, AND DEFINING MARRIAGE AS THE UNION BETWEEN A MAN AND A WOMAN CREATES A SITUATION, AS SOCIAL SCIENCE STUDIES, AND WE SUPPLY MANY OF THEM, INDICATE THAT THAT IS THE GOLD STANDARD FOR -IN THE AGGREGATE THAT PROVIDES THE BEST -- PROVIDES THE BEST ATMOSPHERE WITHIN WHICH A CHILD CAN BE RAISED. CERTAINLY CONTESTED BY THE PLAINTIFFS. THAT'S

WE DON'T DISPUTE THAT.

THEY HAVE PEOPLE THAT DISPUTE OUR STUDIES. THE COURT: DOES THAT POLICY, IS THAT DIRECTED --

DOES IT HAVE A RELATIONSHIP TO THE DEFINITION OF MARRIAGE OR IS IT MORE RELATED TO FOR EXAMPLE ADOPTION? MR. PURSER: WELL, IT COULD BE BOTH, BUT THE STATE

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HAS AN INTEREST IN FACILITATING AND PROMOTING OPPOSITE-SEX MARRIAGE WHEREIN CHILDREN WILL BE RAISED AND WHEREIN IN THE AGGREGATE IT PROVIDES THE BEST ATMOSPHERE AND GIVES THEM THE MOST BENEFITS. THE COURT: MR. PURSER: OKAY. JUST QUICKLY, PLAINTIFFS HAVE

MENTIONED -- I THINK WE'VE ALREADY BEEN OVER THIS, UNLESS THE COURT HAS QUESTIONS -- THE WINDSOR DECISION DIDN'T REJECT ANY OF UTAH'S RATIONAL BASES FOR ITS DEFINITION OF MARRIAGE SIMPLY BECAUSE IT WAS DEALING ONLY WITH THE FEDERAL GOVERNMENT'S INTEREST AND NOT THE STATE'S INTEREST. AND, SECONDLY, AGAIN, I THINK WE'VE ALREADY DISCUSSED THIS, THE PLAINTIFFS MADE THE ARGUMENT THAT STATISTICS SOMEHOW SHOW THE STATE IS WRONG, THAT MARRIAGE RATES HAVEN'T DECREASED OR INCREASED AFTER ENACTMENT OF THESE TYPES OF LAWS IN OTHER STATES. BUT AGAIN THAT'S NOT THE POINT, ONE, AND, TWO, THE

FACT THAT THIS HAS ALWAYS BEEN THE LAW IN UTAH AND UTAH -IT'S ALWAYS BEEN THE COMMON LAW, THAT THERE'S NEVER BEEN AN ABILITY FOR SAME-SEX PEOPLE TO GET MARRIED IN UTAH, THE FACT THAT UTAH SIMPLY CHOSE TO CODIFY AND CONSTITUTIONALIZE THE EXISTING STATUS QUO, YOU WOULDN'T EXPECT ANY DIFFERENCE BECAUSE NOTHING HAS CHANGED. WITH THE COURT'S PERMISSION I'LL BORROW LANGUAGE FROM THE DANDRIDGE V. WILLIAMS OPINION THAT -- IT DEALT WITH A DIFFERENT CONTEXT, BUT THE PRINCIPLES AND IDEAS ARE JUST AS

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APPLICABLE.

IN DANDRIDGE THE COURT WAS LOOKING AT THE STATE'S

DECISION TO GIVE PUBLIC WELFARE TO SOME AND NOT TO OTHERS. THE COURT NOTED, SAID -- AND I'M GOING TO SUBSTITUTE IN UTAH FOR MARYLAND AND MARRIAGE FOR PUBLIC WELFARE, BUT I THINK THIS QUOTE IS WORTH THE TIME IT TAKES TO READ. SAYS, WE DO NOT DECIDE TODAY THAT UTAH'S REGULATION IS WISE, THAT IT BEST FULFILLS THE RELEVANT SOCIAL AND ECONOMIC OBJECTIVES THAT UTAH MIGHT IDEALLY ESPOUSE, OR THAT A MORE JUST AND HUMANE SYSTEM COULD NOT BE DEVISED. CONFLICTING

CLAIMS OF MORALITY AND INTELLIGENCE ARE RAISED BY OPPONENTS AND PROPONENTS OF ALMOST EVERY MEASURE, CERTAINLY INCLUDING THE ONE BEFORE US. BUT THE INTRACTABLE ECONOMIC, SOCIAL, AND

EVEN PHILOSOPHICAL PROBLEMS PRESENTED BY THE ISSUE BEFORE THE COURT ARE NOT THE BUSINESS OF THIS COURT. THE CONSTITUTION

MAY IMPOSE CERTAIN PROCEDURAL SAFEGUARDS, BUT THE CONSTITUTION DOES NOT EMPOWER THIS COURT TO SECOND-GUESS STATE OFFICIALS CHARGED WITH THE DIFFICULT RESPONSIBILITY OF ALLOCATING LIMITED PUBLIC FUNDS AMONG THE MYRIAD OF POTENTIAL RECIPIENTS. THOSE SAME PRINCIPLES APPLY HERE. THIS IS, AS EVERY

JUDGE ALMOST HAS ADMITTED, AS THE SUPREME COURT ACKNOWLEDGES, A DIFFICULT AND EMOTIONAL AND DIVISIVE SOCIAL ISSUE. DOESN'T MAKE IT AN EQUAL PROTECTION VIOLATION. BUT THAT

IT MAKES IT AN

ISSUE FOR THE LEGISLATURE, FOR THE PEOPLE TO DECIDE AS THEY ARE CURRENTLY DOING ALL AROUND THE COUNTRY. IF THE COURT HAS NO OTHER QUESTIONS, I'LL --

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 POINTS.

THE COURT:

THANK YOU, MR. PURSER.

GIVE ME JUST ONE

MOMENT, WOULD YOU, PLEASE. (BRIEF PAUSE) I DON'T. THANK YOU. LET'S DO THIS --

MS. TOMSIC: IMPRESSED, YOUR HONOR.

I AM GOING TO BE SO BRIEF, YOU'LL BE I HAVE THREE QUICK POINTS, UNLESS YOU

DO WANT TO TAKE A BREAK. THE COURT: I'M NOT EASILY IMPRESSED, BUT I CAN'T

DECLINE THAT CHALLENGE. MS. TOMSIC: GREAT. I JUST WANT TO MAKE THREE QUICK

AND THE IDEA THAT A STATE WOULD TRY TO RELY ON

TRADITION AS A LEGITIMATE INTEREST, YOUR HONOR, JUST MEANS, GOSH, WE'VE BEEN DISCRIMINATING ALL THIS TIME, SO BECAUSE WE HAVE, YOU OUGHT TO LET US CONTINUE. LOVING, REJECTED. SECOND POINT, YOUR HONOR. THEY TALK ABOUT ROMER. AND I SAME ARGUMENT MADE IN

WANTED TO SAY ONE THING ABOUT ROMER. WHAT -- YOU DON'T CARE, OKAY. THE COURT: JUST A MOMENT. NO, NO, NO.

I WANT TO QUOTE TO YOU

I'M GOING TO STEP BACK FOR

YOU'RE RIGHT, OF COURSE, AND I THINK THE STATE THE QUESTION ISN'T THAT

DOESN'T DISPUTE TO YOUR FIRST POINT.

JUST BECAUSE IT'S BEEN OUR TRADITION MEANS THAT WE CAN DO WHATEVER WE WISH TO DO. I THINK THE POINT IS -- I DON'T WANT

TO SPEAK FOR THE STATE, BUT I THINK THE STATE WOULD SAY WHAT THAT MEANS IS IN THE CONTEXT OF CONSTITUTIONAL JURISPRUDENCE

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IS YOU DON'T LIGHTLY GO WADING INTO THAT.

IF WE HAVE 200

YEARS OF AN ESTABLISHED PRACTICE IN THIS NATION, THEN WE DON'T EASILY -- WE DON'T JUST GRAB THE CONSTITUTION OFF THE SHELF AND START APPLYING IT TO THINGS WILLY-NILLY. THAT'S -- I THINK THAT'S THEIR POINT. MS. TOMSIC: I HEARD THE WORD WILLY-NILLY WITH BUT LET ME I THINK

REGARD TO PROCREATION, BUT THAT'S PROBABLY RIGHT. SAY THIS, YOUR HONOR. WITH COVERTURE.

YOU KNOW, THE SAME ARGUMENT WAS MADE THE

THE SAME ARGUMENT WAS MADE WITH DIVORCE.

SAME ARGUMENT WAS MADE WITH KEEPING RACIAL LAWS IN PLACE. WELL, YOU KNOW WHAT, THE SUPREME COURT DIDN'T SAY, GOSH, LET'S WAIT 60 YEARS AND SEE HOW THIS ALL WASHES OUT. HAVE A CONSTITUTIONAL RIGHT OR YOU DON'T. THE COURT: THIS CASE. OR MAYBE THEY DID, MAYBE THEY ARE IN YOU EITHER

I MEAN HOW LONG HAVE WE BEEN FLIRTING AROUND WITH

THIS ISSUE IN SUPREME COURT CASES WHERE WE JUST HAVEN'T ANSWERED IT? MS. TOMSIC: WELL, YOUR HONOR, I WOULD ASK YOU TO

LOOK AT PROFESSOR DR. COTT'S WELL WRITTEN DECLARATION, WHO IS THE FOREMOST HISTORIAN ON MARRIAGE, AND SHE WILL DEMONSTRATE TO YOU THAT NOBODY WAITED FOR THOSE LAWS. THEY HAPPENED ONE

AT A TIME, AND AS EVERY ONE POPPED UP, PEOPLE WERE SCREAMING AND YELLING AND IT JUST KEPT ROLLING. NOBODY WAITED. YOU IT ISN'T

EITHER HAVE A CONSTITUTIONAL RIGHT NOW OR YOU DON'T.

YOU'RE GOING TO HAVE ONE IN 20 YEARS BECAUSE SUDDENLY THE

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STATE DECIDES, OH, GOSH, YOU SAME-SEX PEOPLE ARE NOT THAT -OR COUPLES AREN'T THAT BAD. GOSH, WE DECIDED, HUM, WE

SHOULDN'T HAVE BEEN SO MORALLY DETESTED BY YOUR CONDUCT, BECAUSE THAT'S WHAT WE'RE THINKING ABOUT IS YOUR CONDUCT. THAT'S WHAT IT'S ABOUT. AND THEY WANT IT STOPPED. IT'S ALL ABOUT THAT. THEY VISUALIZE SEXUAL CONDUCT, READ THEIR PAPERS. THEY'VE BEEN

IT'S SIMPLE.

READ THEIR STUDIES.

DISCREDITED BY THE PUBLISHERS OF THEM BECAUSE THEY DON'T MEASURE THE RIGHT STANDARD. THEY'RE IRRELEVANT. THEY'RE

BASED ON PREJUDICE AND BIAS THAT IS RELIGIOUSLY GROUNDED IN THIS STATE. AND IT IS NO ONE'S RIGHT TO IMPOSE A MAJORITY'S

RELIGIOUS VIEW ON THE REST OF THE CITIZENS IN A STATE, WHICH IS EXACTLY WHAT'S HAPPENING HERE. AND I WOULD ASK YOUR HONOR TO TAKE A LOOK AT THE MORENO CASE, BECAUSE IN MORENO, WHICH IS CITED BY THE SUPREME COURT IN LAWRENCE AND IN ROMER AND IN WINDSOR, THE COURT THERE SAYS WHEN A LAW IS TARGETED AT A POLITICALLY UNPOPULAR GROUP, THE COURT STARTS BY LOOKING AT LEGISLATIVE RECORDS EVEN UNDER RATIONAL BASIS REVIEW. WHEN YOU TARGET AN UNPOPULAR GROUP, AND YOU CLASSIFY BASED ON A CHARACTERISTIC LIKE WAS DONE IN THE ROMER CASE, THAT -- THE SUPREME COURT IN THAT CASE SAID RESPECT -- IT SAYS EQUAL PROTECTION OF THE LAW IS NOT ACHIEVED THROUGH INDISCRIMINATE IMPOSITION OF INEQUALITIES. RESPECT FOR THIS

PRINCIPLE EXPLAINS WHY LAWS SINGLING OUT A CERTAIN CLASS OF

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CITIZENS FOR DISFAVORED LEGAL STATUS OR GENERAL HARDSHIPS ARE RARE. AND THAT IS WHY THEY ARE SCRUTINIZED. WE'RE NOT TALKING

ABOUT ECONOMIC ISSUES WHERE A STATE HAS A BUDGET AND DECIDES HOW TO SPEND IT. WE'RE TALKING ABOUT FUNDAMENTAL HUMAN

RIGHTS, ABOUT YOUR DESTINY AS A PERSON, WHO YOU SPEND YOUR LIFE WITH. AND MY LAST POINT, YOUR HONOR, HAS TO DO WITH THE VOTER INFORMATION PACKET. I WOULD ASK YOU TO LOOK AT THE MORENO

CASE AGAIN, WHICH HAS BEEN DECIDED IN THESE CASES, WHICH BASICALLY SAYS WHEN YOU HAVE THAT TYPE OF A TARGET, YOU HAVE GOT TO START BY LOOKING AT THE LEGISLATIVE HISTORY, AND THAT'S WHAT THEY'VE DONE AND THAT'S WHAT WE'RE ASKING YOU TO DO. FACT THE STATE CONCEDES IT'S WHERE YOU OUGHT TO BEGIN. SO THANK YOU SO MUCH, YOUR HONOR. I ASK AGAIN, MAKE UTAH IN

THE 18TH STATE BECAUSE IT'S NOT ONLY THE RIGHT AND MORAL THING TO DO, IT'S THE CONSTITUTIONAL THING TO DO. THE COURT: MR. LOTT? MR. LOTT: YOUR HONOR, I DON'T BELIEVE I HAVE THANK YOU, MS. TOMSIC. THANK YOU.

ANYTHING TO ADD, UNLESS THE COURT HAS ADDITIONAL QUESTIONS. THE COURT: THIS HAS BEEN VERY HELPFUL, AND TOGETHER

WITH THE YOUR BRIEFING I THINK I HAVE MY ARMS AROUND IT. MR. PURSER, WAS THERE ANYTHING MORE YOU WISH TO ADD? MR. PURSER: (SHAKING HEAD).

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THE COURT:

ALL RIGHT.

LET ME AGAIN THANK COUNSEL

FOR YOUR EXCELLENT BRIEFING AND YOUR EXCELLENT ARGUMENT TODAY. I CERTAINLY HAVE MY HANDS FULL. I'M MINDFUL OF THE COMMITMENT THAT I MADE TO ALL OF THE PARTIES IN THIS CASE CONCERNING THE DELIBERATE SPEED WITH WHICH WE WOULD TRY TO RESOLVE THIS ISSUE FOR YOU GIVEN THE DISAGREEMENT THAT WE HAVE ABOUT THE SCHEDULING IN THE CASE. CAN MAKE NO GUARANTEE. YOU'VE -- YOU'VE ONLY COMPLICATED THE I

TASK FOR ME AND NOT MADE IT EASIER, BUT I'LL DO MY BEST TO TRY TO GET SOMETHING TO YOU BEFORE WE NEXT SEE EACH OTHER AT OUR SCHEDULED -- I THINK WE HAVE A SCHEDULING CONFERENCE IN JANUARY, DON'T WE? MS. TOMSIC: THE COURT: WE'LL DO OUR BEST. RECESS. (HEARING CONCLUDED AT 1:39 P.M.) * * * JANUARY 7TH, YOUR HONOR, AT 10:00. I KNOW BETTER THAN TO MAKE PROMISES, BUT WE'LL BE IN

THANKS AGAIN TO ALL OF YOU.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 /S/ RAYMOND P. FENLON CERTIFICATE OF REPORTER I, RAYMOND P. FENLON, OFFICIAL COURT REPORTER FOR THE UNITED STATES DISTRICT COURT, DISTRICT OF UTAH, DO HEREBY CERTIFY THAT I REPORTED IN MY OFFICIAL CAPACITY, THE PROCEEDINGS HAD UPON THE HEARING IN THE CASE OF KITCHEN, ET AL. VS. HERBERT, ET AL., CASE NO. 2:13-CV-217, IN SAID COURT, ON THE 4TH DAY OF DECEMBER, 2013. I FURTHER CERTIFY THAT THE FOREGOING PAGES CONSTITUTE THE OFFICIAL TRANSCRIPT OF SAID PROCEEDINGS AS TAKEN FROM MY MACHINE SHORTHAND NOTES. IN WITNESS WHEREOF, I HAVE HERETO SUBSCRIBED MY NAME THIS 6TH DAY OF DECEMBER, 2013.

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