1 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 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON THE HON. MICHAEL J.

McSHANE, JUDGE PRESIDING DEANNA L. GEIGER and JANINE M. ) NELSON; ROBERT DUEHMIG and WILLIAM ) GRIESAR, ) ) Plaintiffs, ) ) v. ) No. 6:13-cv-01834-MC ) JOHN KITZHABER, in his official ) capacity as Governor of Oregon; ) ELLEN ROSENBLUM, in her official ) capacity as Attorney General of ) Oregon; JENNIFER WOODWARD, in her ) official capacity as State ) Registrar, Center for Health ) Statistics, Oregon Health ) Authority; and RANDY WALDRUFF, in ) his official capacity as Multnomah ) County Assessor, ) ) Defendants. ) ___________________________________) PAUL RUMMELL and BENJAMIN WEST; ) LISA CHICKADONZ and CHRISTINE ) TANNER; BASIC RIGHTS EDUCATION ) FUND, ) ) Plaintiffs, ) ) v. ) No. 6:13-cv-02256-TC ) JOHN KITZHABER, in his official ) capacity as Governor of Oregon; ) ELLEN ROSENBLUM, in her official ) capacity as Attorney General of ) Oregon; JENNIFER WOODWARD, in her ) official capacity as State ) Registrar, Center for Health ) Statistics, Oregon Health ) Authority; and RANDY WALDRUFF, in ) his official capacity as Multnomah ) County Assessor, ) ) Defendants. ) ___________________________________)

2 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 Kristi L. Anderson Official Federal Reporter United States Courthouse 405 East Eighth Avenue Eugene, Oregon 97401 (541) 431-4112 Kristi_Anderson@ord.uscourts.gov REPORTER'S TRANSCRIPT OF PROCEEDINGS EUGENE, OREGON WEDNESDAY, APRIL 23, 2014 PAGES 1 - 78

3 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 Kevin Diaz American Civil Liberties Union (ACLU) P.O. Box 40585 Portland, OR 97240 (503) 227-6928 Email: kdiaz@aclu-or.org Lea Ann Easton Dorsay & Easton LLP 1 SW Columbia Street Suite 440 Portland, OR 97258 (503) 790-9060 Fax: (503) 790-9068 Email: leaston@dorsayindianlaw.com FOR THE CONSOLIDATED PLAINTIFFS BASIC RIGHTS EDUCATION FUND, PAUL RUMMELL, BENJAMIN WEST, LISA CHICKADONZ, AND CHRISTINE TANNER: Amanda C. Goad American Civil Liberties Union Foundation 1313 West 8th Street Los Angeles, CA 90017 (213) 977-9500 Fax: (213) 977-5273 Email: agoad@aclu.org Jennifer J. Middleton Johnson, Johnson & Schaller 975 Oak Street Suite 1050 Eugene, OR 97401 (541) 683-2506 Fax: (541) 484-0882 Email: jmiddleton@jjlslaw.com Lake James H. Perriguey Law Works, LLC 1906 SW Madison Street Portland, OR 97205-1718 (503) 227-1928 Fax: (503) 334-2340 Email: lake@law-works.com APPEARANCES OF COUNSEL: FOR THE PLAINTIFFS DEANNA L. GEIGER, JANINE M. NELSON, ROBERT DUEHMIG, AND WILLIAM GRIESAR,

4 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 Sheila H. Potter Oregon Department of Justice Special Litigation Unit 1515 SW Fifth Avenue, Suite 410 Portland, OR 97201 (971) 673-1880 Fax: (971) 673-5000 Email: sheila.potter@doj.state.or.us Mary Williams Oregon Department of Justice 5625 SW California Street Portland, OR 97219 (503) 407-9048 Email: mary_h_williams@msn.com Anna M. Joyce Oregon Department of Justice 1162 Court Street NE Salem, OR 97301 (503) 378-4402 Email: anna.joyce@doj.state.or.us FOR THE DEFENDANTS JOHN KITZHABER, ELLEN ROSENBLUM, AND JENNIFER WOODWARD: Thomas R. Johnson Perkins Coie, LLP 1120 NW Couch Street 10th Floor Portland, OR 97209-4128 (503) 727-2176 Fax: (503) 727-2222 Email: TRJohnson@perkinscoie.com Misha A.D. Isaak Perkins Coie, LLP 1120 NW Couch Street 10th Floor Portland, OR 97209-4128 (503) 727-2086 Fax: (503) 346-2086 Email: MIsaak@perkinscoie.com

5 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 GENERAL INDEX Arguments for the Geiger plaintiffs Lake Perriguey Arguments for the Rummell plaintiffs Misha Isaak Arguments for the defendants - Mary Williams Arguments for the defendant Randy Waldruff Katharine von Ter Stegge Arguments for the Geiger plaintiffs Lea Ann Easton Arguments for the Rummell plaintiffs Jennifer Middleton Arguments for the defendants Sheila Potter Page 72 Page 64 Page 60 Page 58 Page 23 Page 43 Page 10 FOR THE DEFENDANT RANDY WALDRUFF AND MULTNOMAH COUNTY: Katharine von Ter Stegge Office of the Multnomah County Attorney 501 SE Hawthorne Blvd., Suite 500 Portland, OR 97214 (503) 988-3138 Fax: (503) 988-3377 Email: katevts@multco.us

6 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 PROCEEDINGS WEDNESDAY, APRIL 23, 2014 THE COURT: Thank you. Good afternoon everybody. Ms. Pew, if you would like to call our case. THE CLERK: Now is the time set for Civil Case Please remain seated everybody.

13-01834, Geiger, et al. versus Kitzhaber, et al., oral argument on summary judgment motion. THE COURT: All right. I'd like to begin by

having each of the groups of attorneys introduce themselves for the record and introduce any clients or representatives that you might have here. Thank you. Let's start with the Geiger plaintiffs. MS. EASTON: is Lea Ann Easton. plaintiffs. THE COURT: Thank you, Ms. Easton. Good afternoon, Your Honor. Lake Good afternoon, Your Honor. My name

I am one of attorneys for the Geiger

MR. PERRIGUEY: Perriguey.

I am here for the Geiger plaintiffs as well;

Janine Nelson and her partner, Deanna Geiger, on the telephone listening in. They could not be here today.

And also in the courtroom are Bill Griesar, Robert Duehmig, and their son, Jack Griesar.

7 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 Thank you. THE COURT: All right. Thank you, Mr. Perriguey.

Anyone else for the plaintiffs. MS. VON TER STEGGE: Kate von Ter Stegge here on

behalf of Assessor Randall Waldruff and Multnomah County. THE COURT: Okay. Thank you.

The Rummell plaintiffs. MR. ISAAK: Misha Isaak from Perkins Coie on

behalf of Rummell plaintiffs. THE COURT: Thank you. Jennifer Middleton from Johnson,

MS. MIDDLETON:

Johnson & Schaller as ACLU Oregon cooperating attorney on behalf of the Rummell plaintiffs. THE COURT: Ms. Middleton, thank you. Tom Johnson, Perkins Coie, on behalf

MR. JOHNSON:

of the Rummell plaintiffs. And with us in the courtroom today, Lisa Chickadonz, Christine Tanner, Paul Rummell, Benjamin West. And then from Basic Rights Education Fund, Vanessa Usui, who is the board chair, and Jeana Frazzini, who is the executive director. We are also cocounsel in the case with the ACLU, and from the ACLU of Oregon, the executive director, Dave Fidanque. THE COURT: Thank you for joining us.

8 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 Williams. THE COURT: MS. POTTER: THE COURT: MS. JOYCE: THE COURT: MS. POTTER: THE COURT: MS. POTTER: governor's office. Ms. Williams, thank you. Sheila Potter, Your Honor. Ms. Potter. Anna Joyce. Ms. Joyce, thank you. And also -- I am sorry. No. Go ahead. MR. GOAD: for the plaintiffs. THE COURT: MR. DIAZ: Rummell plaintiffs. THE COURT: Mr. Diaz, thank you. Ms. Goad, thank you. Kevin Diaz, ACLU of Oregon, for the Amanda Goad with the ACLU Foundation

For the state. MS. ROSENBLUM: Good afternoon, Your Honor. Ellen

Rosenblum, Oregon Attorney General.

I am here on behalf of

the state defendants, and my team from the Oregon Department of Justice. I will defer to them to introduce themselves to you this afternoon. THE COURT: All right. Thank you for joining us. Mary

MS. WILLIAMS:

Good afternoon, Your Honor.

Also with us is Liani Reeves from the

9 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: Okay. Thank you. Where is she? Oh, there's

Ms. Reeves, thank you. Ms. Reeves. Thank you.

Anyone else I need introductions from? the parties on the phone hear us okay? Are they muted? A PLAINTIFF: THE COURT: Yes, we can hear you. Thank you.

And can

Okay.

I do also want to acknowledge receipt of amicus briefs from Ms. Pedersen and Mr. Feldman representing 36 Oregon employers. I have reviewed their amicus brief.

From Ms. Cavanaugh, Mr. Singer, and Mr. Schlesinger on behalf of the Oregon Area Jewish Committee, the Oregon Board of Rabbis, the Jewish Federation of Greater Portland and other Oregon Clergy. reviewed that amicus brief. From Steven Berman and Nadine Gartner on behalf of Oregon Says I do and Oregon United for Marriage. received that brief and reviewed that as well. I have reviewed all the briefs that have been filed in anticipation of this motion. I do want to thank everybody. time, effort was put into the briefing. I think a lot of It certainly has I have I have

helped me and my staff in giving our analysis of the issues. I have also, as the parties know, received a

10 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 memorandum of support and a motion to intervene filed by Roger Harris and John Eastman, and we will be hearing -- we have set a schedule for briefing on that matter, and that matter will be heard. the 14th of May? MR. SVELUND: THE COURT: May 14. What is our date on that, David? On

May 14th, I believe is what we So I am looking forward to

scheduled oral argument for. that.

But with that, today's summary judgment argument, I think in terms of a schedule of events, we are going to hear first from the Geiger plaintiffs. Mr. Perriguey. MR. PERRIGUEY: Thank you, Your Honor. We

represent Deanna Geiger and Janine Nelson, a lesbian couple who have been together for 31 years who seek to marry in Oregon; Bob Duehmig and Bill Griesar, who left the country to adopt a son because it was challenging for them to have their marriage -- their relationship recognized here in Oregon. This case is about liberty and equality and specifically addresses the individual citizen's right to be free to exercise his or her fundamental and intimate life choices, to marry the person of his or her choice without undue government intervention.

11 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: Mr. Perriguey, hold on just a second.

Char, is there something we can do to cut back on the feedback? THE CLERK: Yeah. I don't know. I think it was

the video conference trying to connect again, Your Honor. THE COURT: THE CLERK: THE COURT: Okay. Yeah. Sorry. I don't know if you are Are we okay now?

getting the same feedback I am. MR. PERRIGUEY: Thank you. I am hearing it, yes, Your Honor.

I appreciate that very much.

Do we want to wait a moment or shall I continue? THE COURT: THE CLERK: I think we are okay. Yeah. Okay. My point here is that this

MR. PERRIGUEY:

is a case about liberty and equality and about a fundamental and intimate life choice and to exercise that right without undue government intervention and to do so in a manner that is equal to other people within the state. The issue before the court today, the phenomenon that motivates the plaintiffs, that compels people across the state and, indeed, across this great nation that gives both meaning to life and energy to life is liberty. freedom. It is

It is this distinct and potent life energy that

motivates us to imagine, to create, to love one another

12 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 privately and in public choices, both as private citizens and as state actors. Oregon's marriage laws impermissibly infringe on this fundamental liberty of gay and lesbian citizens, and therefore these laws impermissibly infringe on our very lives. The Fourteenth Amendment articulates a balance between the state and the life and liberty of a citizen when it commands that no state shall infringe on the life or the liberty of a person without due process of law. The Supreme Court first began to focus on the liberty interest in a case out of Oregon, in fact, in 1925. In Pierce v. Society of Sisters, the Supreme Court addressed a challenge to an Oregon initiative that banned parochial and Catholic schools. In striking down the law, the Supreme

Court held that there was a liberty interest at stake when the government effectively attempts to standardize its citizens. And it's this notion of a single standard of life and liberty in the context of the freedom to marry or not to marry someone of the same gender that Oregon's marriage laws deprive plaintiffs of their due process. They do, these laws, through the Constitution and implicitly through the statutes that refer to husband and wife and by interpretation of the Oregon Supreme Court in

13 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 right. the Li case exclude gay and lesbian people from the fundamental freedom to make a choice about who and whether to marry. Whether to marry and to whom. It is a fundamental

And 14 times since 1888, the U.S. Supreme Court in a

variety of contexts has acknowledged that marriage is a fundamental right, perhaps most eloquently in Loving v. Virginia, and so clearly and simply the Supreme Court identified a fundamental right in the face of miscegenation laws that criminalized marrying someone of a different skin color. They said, "Freedom to marry or not to marry a person of another race resides with the individual and cannot be infringed by the state." Furthermore, the Supreme Court in 13 other cases has addressed the question of the right to marry when it came to prisoners, deadbeat spouses, divorcees and the right to marry again in cases dealing with contraception and public housing. And what makes this right so fundamental: choice about whether and whom to marry? The

The court has

acknowledged in a variety of cases that it involves privacy, intimate association, and autonomy in the face of the government's effort to order society through control, coercion, or exclusion.

14 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 It is a core action, a core life decision, a core expression of liberty, a significant, important choice in the way we, as citizens, express ourselves, that life energy at the foundation of our society. Now, not every constitution in the world perhaps places so much importance on the individual liberty of the citizen, but ours does that. And when there is a question

between an individual's liberty and the government, at times it tips in favor of the individual, even if the government or even if many, many people feel a different way. And oftentimes we see that in these cases that come before the court. It is a marginalized individual or a

marginalized individual that happens to be part of a larger group that the government can sometimes easily gang up on. But our Fourteenth Amendment does just that. It recognizes

foundationally that spirit, that individual liberty of a person. So in Windsor, the Supreme Court affirmed that, quote, State marriage laws are subject to constitutional guarantees of persons, citing the Lawrence case out of Texas that went to the Supreme Court that dealt with the intimate associations of gay and lesbian people. The court affirmed

that the Constitution protects, quote, the moral and sexual choices of gay and lesbian citizens, despite a history of Texas state exclusion of those freedoms.

15 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 When a fundamental right is infringed, and in this case it is conceded by the government that marriage is a fundamental right, the government must show that there is some interest, an important interest that justifies the infringement. That is the due process. In the Zablocki

case, the Supreme Court clarified that heightened scrutiny applies when you are looking at the purported government interest held up as a justification and analyzing whether the state's purpose is justified and that the deprivation, the means by which they are trying to achieve that purpose, is closely tailored to that purported goal. But in this case, that level of scrutiny, those scrutiny goggles, don't seem to be needed to be applied or which scrutiny goggles -- you know, the question of that or what level of scrutiny, it doesn't really come up here because the state is essentially saying that there is no state interest in depriving gay and lesbian people the access to and full recognition of marriage. And they

recognize this, as have a growing number of District Courts across the nation and, I believe, a majority of the Supreme Court, when you listen to Justice Kennedy's words, which I will express a bit more later. THE COURT: You sound a lot like Justice Kennedy

with the language you are using so far, and I will have some questions for you about that.

16 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 MR. PERRIGUEY: But I will get into some of the

specifics and some of the language of some of the cases right here, and I am near the end of my remarks. But I did want to say, just in terms of the state's interest, the domestic partnership identifies that there is a state interest in supporting gay and lesbian families and that this is an important and primary -- that marriage is a primary and exclusive source of many benefits, the benefits that, in the Windsor case, the court recognized that state marriage is the key to many federal benefits. But the state recognizes that marriage is a key to many state benefits, and the legislature developed a domestic partnership scheme to allow gay and lesbians to enter into a union that is still separate and, because it's separate, unequal, but it's also unequal in that that marriage, that equality of marriage is the key to federal benefits. And Measure 36 has walled off an entire class of

citizens notwithstanding the domestic partnership statute where the government recognizes how important these rights are to the individual. The holding in Windsor explicicly -- explicitly, excuse me, identified the fundamental, substantive due process right and an equal protection right, the language deployed by the court to describe if Windsor's relationship speaks to the core liberty, the substantive due process

17 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 right. It described the responsibilities as well as rights

enhanced the dignity and integrity of the person. Justice Kennedy cited Lawrence, another -- which I mentioned earlier, where gay people were simply trying to advance basic civil rights that everyone else in America enjoys without question. Justice Kennedy said, "This places same-sex couples in an unstable position of being a second tier." He goes on, "The differentiation demeans the couple whose moral and sexual choices the Constitution protects," citing Lawrence. And then he goes on to talk about the way in which the separation humiliates tens of thousands of children now being raised by same-gender couples. THE COURT: Okay. Let me ask you this:

MR. PERRIGUEY: THE COURT:

Yes.

He did not cite Justice O'Connor's

language in Lawrence, which suggests the state has an interest in, quote, preserving the traditional institution of marriage, and that would survive a rational basis review. You know, so O'Connor, you know, looked at the Lawrence case and said, this doesn't mean that the traditional institution of marriage fails under a rational basis review.

18 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 You seem to be ignoring her concurring opinion. MR. PERRIGUEY: I think that Justice O'Connor I mean, I think that --

would evolve on this issue as well. I do.

And I think that part of the evolution here, Your Honor, and I don't mean to be coy, is that the evolution of the liberty interest at stake, in terms of gay and lesbian people, has a lot to do with the fact that gay people live in the shadows -- have lived in the shadows for a long time and that -- in any event, that's -THE COURT: Okay. You are talking about the

evolution of a liberty interest, and yet the definition of a liberty interest is one, you know, rooted in our country's traditions; implicit in the concept of ordered liberty. You

know, it's something that's deeply rooted in our notions of liberty and history, and you are talking about something that's evolved over a 20-year period. MR. PERRIGUEY: I am talking about the evolution I think those same

of the understanding of that interest.

goals and desires that exist in the individual, not in the government looking at the individual or the court looking at the individual but the -- that the feeling in that individual is there. Being able to express it is partly

related to being -- having the government not shut you down and not force you sort of to hide that interest that wants

19 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 to come out. So I believe that that interest is there in the same way that it was there in Loving. That, you know, it

wasn't deeply rooted in our nation's history that there was interracial marriage either. That it really is about the

motivating force of the individual and the recognition that this is a motivating force of an individual and that there is no state interest that should continue to keep that down. So that's what I would say to that. THE COURT: Thank you. Nearing conclusion, the court

MR. PERRIGUEY:

also -- so I believe that the case in Lawrence speaks both to substantive due process, which I am really going to cover here, but also to equal protection when it speaks about the equality of treatment and the due process right demand respect for the conduct protected by the substantive guarantee of a liberty. And just yesterday, the Supreme Court, just yesterday, it was Justice Kennedy in a plurality opinion, spoke about some of these themes, which I really enjoy. He said, "The freedom secured by the Constitution consists, in one of its essential dimensions, of the right of the individual not to be injured by the unlawful exercise of government power."

20 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 Oregon's exclusionary marriage laws are an unlawful exercise of government power. Once Oregon

established a mechanism for certain persons to be married and thereby gain access to hundreds of state benefits, it was unlawful -- it was an unlawful exercise of government power for Oregon to limit that mechanism and its attendant benefits to particular persons with no rational basis for excluding other persons from sharing in those benefits and obligations. He said, quote, Liberty's full extent and

meaning may yet to be discovered and affirmed. He then, talking about the history of discrimination said, quote, It demands that we continue to learn, to listen, and to remain open to new approaches if we are to aspire always to a constitutional order in which all persons are treated with fairness and equal dignity. Plaintiffs in this case advance a constitutional order in which they too are treated with fairness and equal dignity. So in this case, we have what's been called a legal double helix. It is both a substantive due process

case because it infringes on a fundamental right of not just the individual but of a class of individuals. And I believe that it is only -- and it's plaintiffs' contention that it is only by striking down

21 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 case? Measure 36, which is now in the Constitution that limits marriage to a man and a woman, and order that all marriage laws be applied to Oregonians equally, without respect to the gender of the spouses, that liberty will be restored. The Constitution compels a decision in favor of individual liberty. THE COURT: All right. Thank you, Mr. Perriguey.

Your brief and your language here today seems much more focused than the other parties on substantive due process. As you read Windsor, and I am not trying to knock you, you do sound somewhat like Justice Kennedy. he used that language: rights. Is Windsor, in your mind, an equal protection Is it a due process case? Is it something else? I am never In Windsor

Liberty and justice, fundamental

Because we are never really told in Windsor.

sure how to read what Windsor actually says is -MR. PERRIGUEY: THE COURT: Right.

-- the constitutional principle that He does talk a lot about this

Kennedy is relying on.

language of liberty, but he seems to cite a lot of equal protection cases and then speaks a lot about federalism. MR. PERRIGUEY: And I don't think that we are

alone in having this question because we have come up,

22 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 looking at the cases, and there's a box, and the black box letter is equal protection law and then over here there's substantive due process law. And in this case, it is both.

And it would be helpful if he said, I am announcing a new theory, and it is called equal dignity or equal liberty. And so Laurence Tribe is a gentleman who coined the term legal double helix in talking about this merging of the way in which a fundamental due -- and it's happening in cases mostly related to gay and lesbian people -THE COURT: Isn't that because courts are really I

afraid to go towards substantive due process anymore?

mean, do you agree it's lost favor, or do you think it's -MR. PERRIGUEY: I don't believe it's -- I think

it's lost favor as a distinct analysis because the ways in which we discriminate against each other in society include groups of people and that -- and because it's not just a case where one person is being plucked out for differential treatment, it's a class of people, I think it just -- it invites a discussion and an analysis of all -- of both of those cases because that is what's happening here. It is a

fundamental right, but it's affecting a class of people in a way that is different than the majority. really is -- it's a hybrid. THE COURT: I appreciate it. All right. Thank you, Mr. Perriguey. So I think it

23 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 MR. PERRIGUEY: THE COURT: Thank you very much, Your Honor.

My thought is we'll stick with the

substantive issues and take up my questions regarding stays of any possible orders as a separate topic. So on behalf, then, of the Rummell plaintiffs. And this is Mr. Isaak, correct, for the plaintiffs? MR. ISAAK: (Nodded affirmatively.)

That's the first time a partner at Perkins Coie has brought me water. Good afternoon, Your Honor. Misha Isaak from

Perkins Coie on behalf of the Rummell plaintiffs. Before I begin, I welcome Your Honor's questions. I prepared an outline that more or less tracks the equal protection argument in our brief, but I welcome questions as I go along. THE COURT: Okay. I was expecting I was going to

hear more about equal protection from you, so I appreciate that. MR. ISAAK: Good guess.

Oregon's marriage exclusion tells loving, committed, same-sex couples that their relationships are unworthy of equal recognition. It demeans same-sex couples,

who the Constitution protects, and it humiliates children being raised by same-sex couples.

24 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 avowed purpose and practical effect of the law are to impose a disadvantage, a separate status, and, so, a stigma on same-sex couples. Oregon is unique. Our state Constitution grants

equal privileges and immunities to same-sex couples, and our laws grant gay and lesbian couples many of the same rights as married couples. But the state carves out from its policy the right of same-sex couples to call themselves married. THE COURT: MR. ISAAK: THE COURT: Can I interrupt you right there? Please. I mean, the state has, at least in

Oregon, done almost everything it can to mitigate any damage here, any harm, when, at this point, you know, I could, and I say hypothetically -- and by the way, despite things I have heard, it's a surprise to me and my partner that we have any plans on getting married. married. I want to clarify that. Let's say hypothetically I drive up to Vancouver. I get married. I mean, what is -- what harm are we talking I am not getting

about other than I can't have a signed ceremony in my backyard? MR. ISAAK: is a harm. And here's another harm: That Mount Hood and the Well, first of all, Your Honor, that

25 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 Oregon coast and Crater Lake are wedding venues that are reserved for opposite-sex couples; that a same-sex couple that wants to get married in their backyard or wants to get married at Crater Lake has to drive to the Clark County Courthouse -- I have heard it is very nice -- but has to drive to the Clark County Courthouse in Washington and get married there. That is a harm.

But also, Your Honor, I think that your question presumes an ability to travel. And I can tell you that

recently one of our clients, Basic Rights Education Fund, has an attorneys committee that I am a member of. Recently

the attorneys committee received an inquiry from somebody who was dying in a Portland hospital, Providence Hospital, and they could not marry. They could not leave the state to

marry before the death was to occur, and the question was what do we do here. And the answer that Oregon gives is we don't have an answer. That person's constitutional injury is not

redressable. This is a state-imposed badge of inferiority that the equal protection guarantee of the Fourteenth Amendment will not abide. Now, courts test a law's compliance with equal protection by, as Mr. Perriguey said, assessing a state's interest in the law and measuring the law's fit with those

26 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 interests. Courts apply this framework with varying degrees

of rigor depending on whether the law is directed at a discrete and insular minority that cannot protect itself through ordinary political channels. Right now, it is the law of the Ninth Circuit that classifications based on sexual orientation are entitled to heightened scrutiny. And as Your Honor knows -THE COURT: MR. ISAAK: THE COURT: Let's talk about SmithKline. Please. What is your understanding of the

current status of the SmithKline case? MR. ISAAK: It is the law in the Ninth Circuit

that the precedential effect of a Ninth Circuit opinion vests when the opinion and judgment are issued, and that has happened in the SmithKline case. Now, as it sounds like Your Honor is well aware, there's been an en banc call by one of the 28 judges on the Ninth Circuit calling for all 28 judges to vote on whether or not that case should be heard by a larger en banc 11-judge panel. But according to the law of the Ninth Circuit, and I am referring to the case Wedbush, Noble, Cooke v. SEC, which is 714 F.2d 923, according to the law of the Ninth Circuit, SmithKline controls District Courts within

27 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 Ninth Circuit, regardless of whether or not there has been an en banc call. It also would be problematic to assume that just because one of 28 judges on the Ninth Circuit has called for an en banc rehearing, therefore that means there necessarily would be an en banc rehearing or it necessarily means that the en banc panel would disagree with the three-judge panel that issued the SmithKline decision. And in fact, as we cite in, I think it's Footnote 27 in our brief, there is an emerging judicial consensus that gays and lesbians are entitled to the protections of heightened scrutiny. And so if Your Honor is sort of reading tea leaves, as we lawyers tend to do, the tea leaves suggest; in fact, it's more than tea-leaf reading when you see that emerging judicial consensus, the tea leaves suggest that even if there was an en banc rehearing, the en banc panel would agree with the emerging judicial consensus that gays and lesbians are entitled to the protections of heightened scrutiny. THE COURT: MR. ISAAK: Under an equal protection analysis. Under an equal protection analysis.

And by the way, while we are on that question, I will just say, there is no question about the fact that under a substantive due process analysis under the Witt v.

28 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 Department of the Air Force case, heightened scrutiny controls. And so if Your Honor has questions, as I think

all the lawyers involved in the case do, about, well, what is the future of the SmithKline case, one way to conduct the analysis in this case is to apply Witt v. Department of the Air Force and apply heightened scrutiny that way. But there's yet another way that Your Honor can go about applying heightened scrutiny through equal protection and sort of avoid the problems created by SmithKline. will actually mention two ways. I

One is to regard Oregon's And

marriage exclusion as a classification based on gender. clearly it is.

I mean, let's just refer to my own clients Paul cannot marry Ben

that are here in the courtroom. because Ben is a man. him.

If Ben were a woman, Paul could marry Lisa cannot marry Chris

Same with Lisa and Chris.

because Chris is a woman. get married. on gender.

If Chris were a man, they could

Clearly, this is a simple classification based

It is clearly established that gender-based

classifications are entitled to the protections of heightened scrutiny, and so Your Honor can apply heightened scrutiny that route. The other route that Your Honor could go to arriving at what we think is the, as I mentioned, emerging judicial consensus is to follow the opinion of Judge White in the Northern District of California in the Golinski case,

29 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 and what Judge White did in that case is Judge White just went right directly to the source material, Footnote 4 of Carolene Products, United States v. Carolene Products. Judge White conducted the analysis himself under those Footnote 4 criteria of whether or not gays and lesbians are entitled to the protections of heightened scrutiny. And the reason why a U.S. District Judge is licensed to do that, notwithstanding that there is an earlier Ninth Circuit opinion saying rational basis review controls, and I am referring to the High Tech Gays case, is, as Judge White explained, the High Tech Gays case is predicated on an earlier body of law that has since been abrogated by the U.S. Supreme Court that said the Bowers v. Hardwick decision, and clearly that decision was reversed by Lawrence v. Texas. So as a U.S. District Judge, Your Honor is certainly empowered to look at the High Tech Gays case, look at Supreme Court precedent since then, and say, clearly High Tech Gays is no longer good law and conduct the analysis yourself to arrive at the same result that the Ninth Circuit panel arrived at in the SmithKline decision. THE COURT: What's your response to, in this case And

the state's argument, which is, in many ways, I don't mean to argue for them; I am sure they will make their case, but that we don't have to get to a heightened scrutiny analysis

30 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 because the law fails just on rational basis review? Why

should the court not just take that approach and not even go to the heightened scrutiny analysis? MR. ISAAK: approach too. You know, we would welcome that

The only qualification I would put on that is

that SmithKline is the controlling law of this circuit, and so I think that an opinion would have to at least acknowledge that right now the controlling law is heightened scrutiny, but Your Honor need not -- you are right. You

need not deal with that difficulty because we agree with the state that there is no rational basis. THE COURT: MR. ISAAK: Okay. So while we are on this subject of is

there a rational basis, the analysis that Your Honor is to conduct is to look at what are the bases that justified or putatively justified Measure 36 and Oregon's marriage exclusion. And I'd like to talk about just three of them,

and I will talk about any others if Your Honor would like to hear argument on any others. So the first one that's perhaps the most often mentioned in the Oregon Voter Pamphlet from 2004 and in the kind of public debate around this issue, it's perhaps the most commonly mentioned justification, is this idea that biological parents of a child are the optimal conditions for child rearing.

31 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 Now, as to this issue, there can be no genuine issue of material fact. While the factual predicate for

this issue is not before the court, I feel the obligation to state for the record that the factual premise that biological parents make better parents than same-sex parents is completely untrue, patently untrue. But I say that that

question is not before the court because Your Honor can even assume the truth of that premise and still conclude that there's no rational basis for Oregon's law because the policy doesn't promote the premise, even if it were true. Oregon's marriage exclusion does not result in any more children being raised by opposite-sex parents, and so the policy does nothing to promote the interest that children be raised by opposite-sex parents. So the second justification that I will mention, and it's one that you discussed with Mr. Perriguey a few moments ago, is that same-sex marriage undermines the traditional definition of marriage. And I understand that Justice O'Connor wrote an opinion in the Lawrence v. Texas case. It was a concurring

opinion, not the majority opinion, and sort of the precedential effect of it is questionable, not only because it's a concurring opinion but also because her commentary is sort of pure dictum. It wasn't on a question that was

before the court in that case.

32 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 But Justice O'Connor seemed to entertain this notion that same-sex marriage -- or that the traditional definition of marriage could be a justification for a marriage exclusion like Oregon's. However, the clearly established Supreme Court law on this point is that the antiquity of a law is not a permissible justification for the law because if it were, then any old law would be constitutional, and that can't possibly be the equal protection analysis. The equal

protection analysis would be empty in that case. In fact, that renders the justification circular. It basically says that because a law exists and is old, it therefore is constitutional, and that would basically gut the court's opportunity to scrutinize the law, which is the entire purpose of the equal protection analysis. The third justification that I will mention is that Oregon public policy should express moral disapproval of same-sex couples. And I want to say at the outset, when addressing this putative policy justification, that we understand that people have deeply-held and sincere beliefs about the morality of same-sex relationships, and it is not my intention to disparage those beliefs. But as the Supreme Court held in a foursquare holding in Lawrence v. Texas, moral disapproval is not

33 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 sufficient justification against constitutional challenge. And so under the Supreme Court's law that controls this case, that is an insufficient justification as well. Now, Your Honor mentioned at the outset this question that Oregon has attempted to mitigate the harm to same-sex couples, and I want to talk about that issue for a moment because it's true that Oregon public policy toward gays and lesbians sort of promotes a notion of equality toward gay and lesbian couples. In fact, in a landmark Oregon Court of Appeals decision that my clients, Lisa and Chris, were parties to, the Oregon Court of Appeals first declared that Oregon same-sex couples are entitled to equal privileges and immunities under the Oregon Constitution, and the legislature has made findings in the Oregon Family Fairness Act that Oregon same-sex couples are -- they are valuable and they are worthy of the state's protection and their children are worthy of the state's protection. And it is this kind of exceptional condition that makes Oregon's marriage exclusion so odd; such an anomaly. In fact, in the Perry v. Brown decision at the Ninth Circuit, which was since vacated by the Supreme Court because of lack of standing to appeal, but of course that decision is persuasive, the Ninth Circuit panel said that California's Proposition 8, which was a similar kind of

34 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 circumstance, excised with surgical precision one specific right, the right to use the designation of marriage. And it

was that anomaly, that excising with surgical precision, that sort of made the equal protection question all the more acute. How can the state justify the fact that it think

that it -- same-sex couples and same-sex relationships are valuable and worthy of protection and worthy of equality and then say but not this one thing. burden. Now, setting to the side the Supreme Court's means-ends framework that I have been talking about until now, there is a line of equal protection cases that hold the law can be enacted -- or excuse me -- cannot be enacted for no other reason than to impose a disability on a disfavored class. And when I say line of cases, I am talking about the line of cases that begins with USDA v. Moreno, it goes to Cleburne v. Cleburne Living Center, and then, most importantly, the Supreme Court applies that line of cases in Romer v. Evans and United States v. Windsor, where they say That heightens the state's

that a law -- it is not a permissible purpose for a law just to set out to disfavor -- to disadvantage or impose a disability on a disfavored class. THE COURT: protection case? So do you think Windsor is an equal

35 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 MR. ISAAK: protection case. THE COURT: MR. ISAAK: Substantive due process? Well, let me sort of give an I do think Windsor is an equal

explanation for why, and the first explanation I think is the easiest, which is that, according to the Ninth Circuit in SmithKline, the Ninth Circuit thinks it's an equal protection case, and that's sort of reason enough. But on the merits of that issue, Justice Kennedy uses soaring libertyish, due processish language in that case for sure, and he cites the Due Process Clause. I think

what he is doing, in addition to just being his eloquent self, is that the terms of the Equal Protection Clause only limits states, and the Supreme Court has applied the Equal Protection Clause to the federal government through the Due Process Clause of the Fifth Amendment, and they did that in a case called Bolling v. Sharpe. And so I think that the reason why there's so much due process talk in that case is because the Supreme Court is applying the equal protection principle of the Fourteenth Amendment through the Due Process Clause in sort of a fairness principle of the Fifth Amendment. THE COURT: MR. ISAAK: THE COURT: Just follow up for a second on this. Sure. You have talked in your brief about

36 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 other jurisdictions that have -- let me find it here -have decided against the prohibition -- state prohibitions. And they say here, "A survey of public available opinions show that in the eight months since Windsor, 18 court decisions have addressed an issue of equality based on sexual orientation," and it has 18 cases. "Equality has won every

single time," citing an article. Have the other courts -- and I know I am all hung up on substantive due process. Have they punted on it? I know that

Have they denied the due process argument?

there's at least one state from where the district judges didn't even decide the due process issue. MR. ISAAK: THE COURT: Right. But do you have a sense of -- I know

you have a sense of where the equal protection arguments go, but the due process arguments -MR. ISAAK: Yeah. So first of all, that's -- I That survey was done back in

should qualify that survey.

mid-February, and as we all know from reading the news and looking at developments in the case law, there have been even more cases since then, and it is still unanimous among federal and state courts applying Windsor. There are some of those decisions that rely on substantive due process, and most prominently, the U.S.

37 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 District Court in Virginia wrote quite an eloquent tribute to the fundamental right to marriage in that decision. Generally these cases seem to be heading in the equal protection direction, and I think that what is directing that is that most of these judges are viewing Windsor -- my perception, at least, is that most of these judges are viewing Windsor as the equal protection case, and Romer is certainly an equal protection case, and therefore they kind of see that that is where this issue is headed in the judiciary. But in at least several of these opinions, if not most of them, courts walk through the due process analysis, applying the scrutiny approach that I have mentioned or applying a rational basis approach and then, sort of in a conclusory fashion, say, oh, yeah, and the fundamental right to marry too because ultimately, once you answer the question is a fundamental right to marry implicated in this case, the substantive means-ends testing analysis is more or less the same. THE COURT: MR. ISAAK: Okay. So as I mentioned, there's this line

of cases at the Supreme Court that doesn't employ the means-ends framework I have been talking about. They seem

to putatively be rational basis cases, although most scholars and lower courts have referred to this analysis as

38 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 kind of enhanced rational basis or rational basis with bite, as some of them say, and the basic upshot of these cases is that it is not a permissible purpose to pass a law for no other reason than to disadvantage or impose a disability on a disfavored class. And we would argue that Measure 36 and

Oregon's marriage exclusion is precisely such a law. So the first thing that, following this line of cases; in particular, Justice Kennedy's opinion in Romer, that the court should look at in determining whether or not this is that kind of a law is whether or not it is a law of an unusual character, as Justice Kennedy said. Justice

Kennedy says that if the law is anomalous in more respects than just imposing the disadvantage but if it is structurally anomalous, then that raises or heightens equal protection questions. And we would argue that Measure 36 is a law of an unusual character. It is an anomaly because, as documented

in the Lee v. State case, which is an Oregon Supreme Court case, throughout Oregon history, marriage has been the inclusive -- the exclusive province of statute and of the state legislature. But Measure 36, for the first time in Oregon history, breaks from this tradition by inserting a marriage regulation into the state Constitution. So in the same respect that the Amendment 2 at

39 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 issue in Romer was structurally anomalous and DOMA in United States v. Windsor was structurally anom -- anom -anomalous, excuse me, so too Measure 36 is. It's also substantively anomalous in its treatment of gays and lesbians since, as I mentioned, it is an exception to Oregon's general policy that favors equality for gays and lesbians and gay and lesbian couples. And Your Honor can look toward evidence from the legislative history of the law to see that the law was motivated by an intent to exclude and to disadvantage. And as distasteful as I find it, I just want to cite a couple of pieces of the legislative history to that effect. The voters -THE COURT: MR. ISAAK: Is this the statute or the initiative? The initiative.

So the voter pamphlet in 2004 referred to same-sex marriage as a vast, untested social experiment on children. It said that Measure 36 was necessary to prevent placement of foster children in same-sex households, which, of course, as the court knows, Measure 36 had no effect on. A direct mail flier distributed by the campaign in support of Measure 36 threatened, quote, If Measure 36 fails, gay and lesbian sex will be taught in Oregon schools. Is that what you want?

40 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 though? So it's not very hard to look at these items of evidence from the legislative history and conclude that this was a law that was passed with an intent to exclude or to impose a disability. Now, to find that the law sets out to impose a disability on a disfavored class, one need not conclude that the supporters of the measure were motivated by bad faith, and we don't argue that. Many people voted for Measure 36

out of understandable fears or misunderstandings, misunderstandings that are particularly understandable given the information that they were receiving from the voter pamphlet and from the campaign in favor of Measure 36. As Justice Kennedy has said, again, a lot of Justice Kennedy today, "Prejudice may well result from insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different from ourselves." So just to conclude, I want to touch briefly -THE COURT: Doesn't that sound a little arrogant,

You know, if they just think a little bit more, I mean, that's my

they would be smarter, better people.

problem with that quote is that it just sounds like he is calling people stupid instead of just saying they are afraid or something along those line. That quote, I know it was in

41 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 your brief, but I read that and it just seems a little demeaning. MR. ISAAK: I think that's a fair criticism of the

quote, but I think that the quote is no less true because I would never purport to call people stupid, but I think that particularly given a variety of misinformation, given an issue in 2004 that sort of grossed people out, for lack of a better term, and that people maybe had never given much thought to, all they are hearing is information about -from the campaign that is misinformation, as I have cited, and I think that there is maybe a want of careful reflection is a little bit overstated, but there is a lack of information. THE COURT: MR. ISAAK: Okay. So to just touch on the substantive

due process argument that Mr. Perriguey raised, and I want to address one question that you asked Mr. Perriguey, we agree, the Rummell plaintiffs agree, that substantive due process is at issue in this case, and that would be a -- we would encourage Your Honor to either decide this case on equal protection or substantive due process grounds. Same-sex couples have the same fundamental right to marry as opposite-sex couples, and in fact, in the Witt v. the Department of the Air Force case, which is controlling of your decision in this circuit, the Ninth Circuit said that

42 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 relevant level of scrutiny to apply is heightened scrutiny, and for the reasons that we have discussed, we don't think the law can survive heightened scrutiny. But the question that you asked Mr. Perriguey that I want to address is this question about whether a right is deeply rooted in American history of tradition -- American history and tradition when the right seems to be relatively new. And I would just say to Your Honor that the exact same criticism could have been made and I believe was made in dissenting opinions in Lawrence v. Texas and Witt v. Department of the Air Force. And both of those cases hold that the intimate relationships of same-sex couples are deeply rooted in American history and tradition. And in fact, in Lawrence v. Texas, Justice Kennedy famously wrote, "Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They

knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact only serve to

43 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 state? oppress. As the Constitution endures, persons in

every generation can invoke its principles in their own search for greater freedom." Unless Your Honor has any other questions -THE COURT: Mr. Isaak. I don't. Thank you very much,

I appreciate that. Thank you. Thank you.

MR. ISAAK: THE COURT: The county?

And for -- we are going with the Who is arguing next? The state will go first and

MS. VON TER STEGGE: then I will. THE COURT: Okay.

MS. WILLIAMS:

Thank you, Your Honor.

Mary

Williams for the state defendants. In many ways, this is a national issue, and you see that in the number of cases that have been filed raising similar challenges to similar state bans on same-sex marriage. The latest this week is Georgia. But it's

important to keep in mind that this is a state issue in terms of the legal analysis. And I want to talk for a

moment about the role of the state defendants in this case and how we come to be where we are today. When a state provision of the state Constitution is challenged, the state defendants take very seriously the obligation to defend that provision or to defend any state

44 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 law. At the same time, the state has a strong obligation to

do it in a way that is consistent with the rule of law, consistent with the obligation to consider the federal constitutional rights of Oregonians. When this issue began arising in a number of states and especially as it was coming up in California, the state began to carefully analyze what it would mean for Oregon. And I think what you see in a lot of the cases and

I think what you see in some of the language in Windsor and also in O'Connor's concurrence in the Lawrence case is that the court has recognized that this is an area where states are entitled to a great deal of deference. The states can make different choices about who may marry, about family relations, and it's an area where federal courts should defer to those state decisions. But that deference only goes so far because when the rights of individuals are being violated under the Federal Constitution, the deference to those state decisions sometimes must give way. And I will just continue on the point in terms of the O'Connor concurring opinion. When the Lawrence decision

was issued, there certainly was a lot going on about how strong would federalism continue to be with the court and some possible shifting about the role of federalism in some of the significant state court decisions.

45 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 And I think what O'Connor was doing was really trying to underscore that the decision in Lawrence didn't change anything in terms of that basic sort of federalism issue that was going on and basically saying that this doesn't say anything about traditional marriage and the deference that we may have to give to state arguments about traditional marriage. So she was simply saying that's not before us in this case. That's not what we are talking about. We are

not resolving that question here.

And I am not sure that

she intended those remarks to actually resolve anything that wasn't before her in the case. But coming back to the issue that we had here, in looking at this issue and in monitoring the arguments that were being made, first in the California case and then in others as they have moved through the courts, the state defendants looked very closely at possible justifications that could be made to defend Oregon's constitutional prohibition on same-sex marriage. The reason it's important to keep in mind that this is a state issue is that state defendants may be able to make arguments in other states that we have determined we could not make in Oregon because of other legitimate policy choices that the Oregon legislature has made that would be inconsistent with putting forth those justifications.

46 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 And you have heard from counsel, and we don't disagree with much of what they have said in terms of what the analysis is and what the -- sort of how do you walk through that analysis. At the end of the day, when you kind of get through the analysis, it comes to a similar question, which is what is the government's reason for either the discriminatory treatment under the Equal Protection Clause or the interference with a fundamental right under the Due Process Clause. That reason has to make sense in the

context of what else the government does. And so when you look at the justifications that have been offered in the other states, you have to look at them in terms of the context of these other legitimate decisions that the Oregon legislature has made. And the

thing I'd point the court to primarily is Oregon Revised Statute 106.305. And it's cited in the briefs and different

parts of it are referenced in the briefs. But what that statute does, it's the introduction to the statutory provisions that give rights to same-sex couples. It's also, though, a very eloquent statement of

the legislative assembly finding, as policy of the state, a desire to recognize, value, and protect same-sex couples and their families. The legislature states in the statute that

47 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 "It has long been the public policy of this state that discrimination against any of the citizens of this state is a matter of state concern that threatens not only the rights and privileges of the state's inhabitants but menaces the institutions and foundation of a free, democratic state. These fundamental principles are integral

to Oregon's constitutional form of government, to its guarantees of political and civil rights, and to the continued vitality of political and civil society in this state." Excuse me. The court -- the legislature, the legislative assembly goes on to recognize that "Many gay and lesbian Oregonians have formed lasting, committed, caring, and faithful relationships with individuals of the same sex, despite long-standing social and economic discrimination. These couples

live together, participate in their communities together, and often raise children and care for family members together, just as do couples who are married under Oregon law." The legislative assembly again, as laying out the policy for the state, says, "This state has a strong interest in promoting stable and lasting

48 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 families, including the families of same-sex couples and their children. All Oregon families

should be provided with the opportunity to obtain necessary legal protections and status and the ability to achieve their fullest potential." Now, in light of those clear messages of the legislative policy and looking at the laws of the state, looking at how those laws have been implemented and executed through the Executive Branch, it really forecloses the state's ability to stand before you and say that the justifications that have been put forth by state government in these other areas, in the other places where this is being litigated, can be put forward to you today. Those justifications concern a notion that marriage is designed to encourage children to be raised by a biological mother and a biological father, and we simply cannot make that argument to you without undermining the policy choices that the legislature has made to recognize and value same-sex couples and their families, which makes Oregon very different than even states like Nevada. Nevada

also has civil unions but does not have this sort of clear policy statement valuing same-sex couples and their families. So it puts us in an unusual position. done a thorough analysis. We have

We have considered the arguments

49 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 on. The current status of SmithKline, yes, the parties and possible justifications that could be presented to this court. But we, at the end of the day, find that those

justifications cannot be put forward without undermining the legislative choices that have been made to protect Oregonians and to value Oregonians, including same-sex couples and their families. And as creative as the state attorneys can be, and we can be very creative in our cases, we could not come up with a justification that others hadn't yet thought of and put forward in their cases. I am going to try to address some of the questions that the court has asked others, but please -THE COURT: Okay. -- if there's something you would

MS. WILLIAMS:

like me to focus on, I will do that. THE COURT: Well, I mean, certainly more than the

plaintiffs, you have focused on a rational basis review, not a lot of emphasis on SmithKline. of SmithKline as current law? And what are your thoughts

Is it something that should

be relied upon by this court given there hasn't been, yet, a mandate issued, or do I just avoid that issue and take your suggestion and evaluate on a rational review basis? MS. WILLIAMS: Yes to the latter. But I will go

50 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 have submitted their briefs in response to the court's request that they address the call for the en banc vote. Both parties said that they did not believe the court should consider the level of scrutiny issue in any en banc review. Abbott Labs says, sure, take it en banc but not on that issue, and SmithKline Beecham says don't take it at all. I am not sure what's going to happen in that case. As we have seen in this area in terms of kind of the level of scrutiny can change for groups, and I think that's why some judges have started with rational basis review. If that resolves the case, it allows for an opinion So

that is free from doubt or question no matter what may happen down the road on the issue of what's the appropriate level of scrutiny. I actually think that the analysis in the SmithKline case is -- ultimately it's the correct analysis. If the court were to walk through something similar, we wouldn't disagree with the analysis that the panel does in that opinion. But it is an issue that is coming up in other cases, coming up in other jurisdictions, and may, at some point, reach the Supreme Court and be resolved in a -- we simply don't know how it's going to be resolved. And I think the practical suggestion of start with rational basis; if you determine that there is no rational

51 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 basis for the same-sex marriage prohibition, it simply kind of provides some solid foundation for the opinion no matter what may happen on that issue down the road. sort of a practical suggestion. courts have done with this. And given what our analysis led us to conclude, which is we cannot imagine a rational justification for the ban in light of Oregon's other strong policy determinations, it would be a simple solution to not having to weigh in on the level of scrutiny issue. I can always argue both sides of a case. I'd say And so it was

It is what some other

on the other hand, I actually think that other courts looking at these issues are benefiting from the dialogue going on across the country. And I think you start to see that as we are getting more and more opinions from District Courts, and eventually we are going to start seeing them in the appellate courts, that as the appellate courts are reviewing these, I think having the thoughtful analysis that they are seeing from multiple courts is beneficial and, you know, so I am sure that the court could provide some value to that conversation in thinking about this issue. thinking that it's not necessary. And it's the same sort of question in terms of do you have to get into due process or can you simply resolve I am just

52 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 case. this on the equal protection grounds or vice versa. Most of the courts have addressed both of those issues but in a fairly cursory fashion because, once they have considered the Equal Protection Clause analysis, if you get to the due process analysis, assuming that there is a fundamental right at issue, the analysis looks very similar then. Is there a good justification for interfering with

that right. And I do think Windsor is an equal protection I think Kennedy is very creative sometimes in

avoiding what he's talking about, including what level of scrutiny he is applying, but if you kind of look at what he's relying on, although some of the language is taken from due process cases, the analysis is really largely -- fits more comfortably, I think, with an equal protection analysis. Let's see. And also speaking of Kennedy, in terms

of sort of the injury -- you asked what injury if -- given that the state has now said we will recognize out-of-state marriages. THE COURT: Right. That recognition is a limited

MS. WILLIAMS: recognition.

It is a determination by the Executive Branch

that notwithstanding the language in the Oregon constitutional provision, agencies in the Executive Branch

53 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 should recognize the out-of-state, same-sex marriages as valid. That does not have the same sort of across-the-board

application that I think really couples may need to feel like that's a satisfactory alternative to being married in Oregon. It does not bind the Judicial Branch. bind private parties. It does not

It simply is a message to the

Executive Branch that -- and it's a significant one -- that state agencies will treat those out-of-state marriages as marriages for purposes of administering the state laws. THE COURT: I assume it's limited to the current

Executive Branch, I assume, as well. MR. WILLIAMS: Yes, Your Honor, it is.

And it also doesn't address the kind of injury that Kennedy talks about, even that Justice Ginsburg sort of talks about in the oral argument in Windsor that there's something more when you are talking about marriage, which is the -- kind of the stamp of approval from your state government that there is value to this relationship and what that means for the children of same-sex couples. THE COURT: That value piece is where I get a

little lost in the substantive due process because none of that is required for marriage. I mean, the fact is I could

wake up in -- you know, with a blurry memory in Las Vegas and a ring on my finger; in Oregon, I am good to go. I

54 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 attest. THE COURT: I am impressed. The fact that you may have that and mean, to me that leads much quicker into equal protection analysis. Why that person versus this group of people. But when we start talking about this flowery language about marriage, it just doesn't seem to be necessarily -- I mean, there is that phrase, a marriage of convenience, and that's just fine in Oregon too. This

traditional concept of, you know, inherent in human dignity, I get it, but it's not necessarily a prerequisite of any marriage in this state or any other state that I know of. That's where I get a little lost in those flowery, Mr. Perriguey arguments and Justice Kennedy arguments is that it seems so much easier for me to look at the application of the law. MS. WILLIAMS: Right. And I think the way we get

into some of that flowery language is that, in trying to put forth a reason to defend a prohibition on same-sex marriage, you see a lot of state defendants talking about the reasons for marriage in those sort of terms. That yes, you may

have -- was it Britney Spears who was married for five days? My pop culture knowledge is -THE COURT: You got it. You are doing well.

MR. WILLIAMS:

-- bound to be bad, as some will

MS. WILLIAMS:

55 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 language. you may have other marriages of convenience doesn't really take away from what you are looking at here, which is what is the state's larger interest in marriage and how it regulates marriage. And so you may have these outliers. But typically

these cases really are being discussed in those, you know, sort of bigger terms of why is the state in this at all, and then why is it placing certain restrictions on marriage. And I think there's a long history of that, actually, in these cases, notwithstanding the fact that you talk about marriage in terms of promoting responsible procreation, even though marriage is available to those who may choose not to procreate or cannot procreate. And in fact, that's permissible that the state can put forth those justifications. perfect match. It doesn't have to be a

They don't have to exclude some who would

not kind of fit with that justification and still be able to put forth that as the justification. So I think that's how you kind of get into that Yes, we can certainly think of examples that are

not a good fit for that, but for the due process cases, that's kind of how we end up thinking about them and talking about them. THE COURT: Okay. On due process, I do think that the

MS. WILLIAMS:

56 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 key issue there is how you define the right at issue. And I

think Your Honor sort of asked whether this was a -- kind of something new. That ends up being, I think, very important What are we talking about. Is

for the due process issue.

this some new right to same-sex marriage, or is it simply the long-standing, traditional right to marriage that the state has had an interest in and has regulated for hundreds of years. Our position is that this is not something new. It's not a right to same-sex marriage that we are talking about, but it is a right to marriage that carries with it that long history. That right to marriage may change in

what it looks like, but it doesn't -- as it changes, it doesn't -- it's not like there's a new right each time that we are talking about this. And I think the two important things to look at there -- obviously Loving, that argument was made and soundly rejected in Loving that we weren't talking about a new right to interracial marriage. the fundamental right to marriage. The argument was also put forth by the BLAG legislative defendants in Windsor, and if you read the briefing, they made that argument very strongly. And I We were talking about

think then what's telling is you see nothing about it in the Windsor opinions. So the court certainly had that in front

57 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 of them and didn't even mention it. THE COURT: So I am not fond of slippery slope

arguments, but when you are defining marriage that way and that it can evolve, what is your response to those that would say, well, then what's next? I mean, it's just going

to keep going until, who knows, we are marrying our border collie and everything else. isn't it? I mean, that's the argument,

So how do you respond to it? MS. WILLIAMS: It is the argument, Your Honor. I

listened to the arguments -- so recently the Tenth Circuit has heard oral argument from Utah and from Oklahoma and the same panel hearing both cases. For the Utah case, the panel asked, if we agree with the plaintiffs, does this mean a right to polygamist marriage. They didn't ask that for the Oklahoma plaintiffs. But I think that it brings me back to where I started, which is that this is a state issue, and all of those other questions will have to be answered in the context of the decisions that the state makes, deference to the state making those decisions, unless it starts to interfere with an individual's constitutional rights under the Federal Constitution. And I could easily imagine arguments that would say, no, a polygamous marriage is not part of this fundamental, long-standing right to marry. The state does

58 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 court? THE COURT: No. Then thank you. I appreciate it. So it's good to have good reasons to say that the solid foundation that we are trying to support is a relationship between two adults who can care for one another and care for their families, take responsibility for one another. We don't know what

that means when you add a third or fourth or fifth person to the mix. And as a state, we have a rational justification

to say no; we are going to limit marriage to two individuals. I can't come up with a similar justification in this case. THE COURT: Okay. Any further questions from the

MS. WILLIAMS:

MS. WILLIAMS: THE COURT: All right.

Thank you very much. Ms. von Ter Stegge.

go last, less amount of questions, so come on up. MS. VON TER STEGGE: Well, that works for me.

The same-sex marriage ban in this state is both unjust and unconstitutional. The same-sex marriage ban

forces Multnomah County to discriminate against its own residents, both in violation of the U.S. Constitution and in violation of its core mission to deliver equitable services to all residents, and that's all residents regardless of who

59 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 they are, where they come from, what they believe, or whom they choose to love. For ten years Multnomah County has taken the public position that the same-sex marriage ban violates both the Due Process and Equal Protection Clauses of the Constitution and cannot survive a heightened scrutiny review. Multnomah County, likewise, takes the position that there is no rational basis for depriving same-sex couples of the benefits, the protections, and the joys of marriage for themselves and their children. Today Multnomah County stands with the other parties in this case and asks you to strike down the same-sex marriage ban. The county supports the plaintiffs

in seeking a declaration that Article XV, Section 5a of the Oregon Constitution deprives Oregonians of both equal protection and due process, and we look forward to the very important and long overdue recognition of equal civil rights for all Oregonians seeking to marry. And we'd like to let

you know, as Multnomah County, that we stand ready and, frankly, delighted to issue marriage licenses again to same-sex couples on the order of this court. THE COURT: address this issue: Since you are last up, I will have you I did send out questions regarding

whether the court, if it does order -- declare under one

60 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 analysis or both that the initiative, the Oregon statutes or marriage laws are unconstitutional, whether it is appropriate to stay any order pending further direction by appellate courts or pending ballot initiatives. county have a position that? MS. VON TER STEGGE: The county's position is that Does the

there should be no stay because one day of constitutional violations of this nature is not acceptable. THE COURT: Ter Stegge. On that second issue, Ms. Easton, you were going to address that issue; is that correct? MS. EASTON: THE COURT: MS. EASTON: Ninth Circuit -THE COURT: MS. EASTON: THE COURT: MS. EASTON: Sorry about that. I will step back. That was Scalia. You know, Your Honor, he did that to Regarding the state, Your Honor? Yes. Yes. Your Honor, the law in the Okay. All right. Thank you, Ms. von

my clients in Smith v. -- Unemployment v. Smith, so it shouldn't surprise me. But I digress. That's about religious freedom.

Today we are here talking about a completely different issue.

61 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 But Your Honor, in the Ninth Circuit under Rule of Civil Procedure 62(c) as regards to a stay, the court has discretion to issue a stay. There are four factors that you

are to consider when granting a stay of your order. The first one is whether the stay applicant has made a strong showing that he or she is likely to succeed on the merits. The second is whether the applicant will be The third is whether

irreparably injured absent a stay.

issuance of the stay will substantially injure the other parties interested in the proceeding, and the fourth one is where the public interest lies. And that's from a case called -- and I am going to slaughter the name, but it's Leiva-Perez v. Holder, 640 F.3d 962, 964. It's a Ninth Circuit 2011 case, and it's quoting

Nken v. Holder, which is a U.S. Supreme Court case. And what Nken tells us is that the first two factors of the traditional standard are the most critical and that all four of these factors are examined on a continuum or a sliding scale approach, according to the Ninth Circuit, and so that they are balanced. So the

stronger showing of one element may offset a weaker showing another. Now, applying the factors in this case is -- based upon what we have here today is challenging because, first of all, there's no applicant asking for a stay. So that

62 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 Sorry. THE CLERK: THE COURT: THE CLERK: THE COURT: THE CLERK: THE COURT: MS. EASTON: Yeah. It's -factor is -THE COURT: Sorry. We are getting feedback again.

Better just turn it off. Yeah. Hmm? I can't even get to the screen. Okay. Thank you. I can't even get to the screen.

So first, whether the applicant has a

strong or substantial likelihood of success on the merits, courts across the country are finding in favor of our position in this case. And I think it's likely, reading tea

leaves, that if this case were ever to be heard in the Ninth Circuit that it would certainly find that there is a right to marriage for same-sex couples. So I think the likelihood

of success on the merits for anybody trying to seek a stay would be very minimal. THE COURT: I meant to ask this earlier, but do One minute

you know the status, then, of the Sandoval case? it was set for a hearing; now it's not. MS. EASTON:

Your Honor, my understanding, and I

just looked at the docket this morning when not sleeping, is that the case is not currently scheduled for oral argument. I didn't see it anywhere on the docket for an oral argument.

63 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 minute. THE COURT: MS. EASTON: Okay. Thank you. All the briefs have been submitted, and I think they are just waiting for a hearing date. THE COURT: MS. EASTON: Okay. And I don't know if anybody else has

other information on that. MS. MIDDLETON: I think I can address that in a

The second criteria is whether the

applicant will suffer irreparable harm if the District proceedings are not stayed. Again, there can be no -- there

is no showing here, and there can be no harm based upon the policy arguments that the State of Oregon just has highlighted for the court in their argument. The third criteria is whether a stay in the District Court will substantially injure other parties. I would say to that the answer is emphatically yes. clients are harmed. My And

They will continue to be harmed, like

all other same-sex couples who are denied the opportunity and the right to be married here in their home state. And the fourth criteria is where the public interest lies. The state has articulated the reasons why

same-sex marriage benefits all Oregonians by supporting healthy and stable families. They have cited to the

legislative history behind the "Almost Equal Partnership

64 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 Act" is what I would call it, and it talks about embracing the values of treating all Oregonians in a same manner and respecting the families that we choose and that we have. And unlike everybody else, I am not going to cite Justice Kennedy. Instead, I am going to cite Justice

Shelby, who wrote the Utah decision. In his decision denying the stay, he says, "The Constitution does not allow state legislatures or citizens to enact laws that violate constitutional rights. The public has a

more profound and long-term interest in upholding individual constitutional rights." THE COURT: appreciate it. So your colleague, Mr. Isaak, had said that in 2004, the voters lacked information to make a smart decision. Is it worth our while to give him the chance to All right. Thank you, Ms. Easton. I

renew a look at the information over the last decade and decide at the polls before the court steps in? MS. MIDDLETON: Well, Your Honor, the question in

this case is of constitutional dimension, and you will be deciding whether it's a constitutional violation every day that passes that thousands of Oregon couples are denied the right to marry, whether it's a fundamental right to marry under the Due Process Clause or a matter of equal

65 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 protection. And simply put, the voters don't have an opportunity to weigh in on constitutional questions. a role for this court and for the Judicial Branch. So no matter what the voters decide, the same question would still be coming to this court to be decided after their vote. And this court might be in a position of That's

telling the voters of Oregon that the entire ballot initiative that they just went through was a hollow exercise because they have voted on a constitutional issue determining the constitutional rights of Oregonians and this court has decided that their decision has to be either overturned or, if the vote moots the law, that's -- or moots the case because it overturns the law, that's great. But if

not, they have gone through a hollow exercise, and the question is right here before this court again. THE COURT: I am already -- I mean, that's what

you are asking me to tell them as it stands; that they went through a hollow exercise in 2004 and nobody paid much attention to it until ten years later when a judge stepped in and said you wasted your time. MS. MIDDLETON: Well, Your Honor, the same thing

happened with the Defense of Marriage Act with Congress passing the law, and then it was over a decade in effect before the Supreme Court stepped in and said that law is

66 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 unconstitutional, or at least a portion of it was unconstitutional, and that's the way our system works. With respect to the question of issuing a stay to await guidance from the Ninth Circuit, there are really only two cases pending at the Ninth Circuit that might affect this case at all. And I would start by saying that the Supreme Court nearly 80 years ago made clear, observing that, quote, Only in rare circumstances will a litigant in one cause be compelled to stand aside while a litigant in another settles the rule of law that will define the rights of both. That's a case called Landis v. North American Company, 229 [sic] U.S. 248. THE COURT: Thank you. And we submit that it's absolutely

MS. MIDDLETON:

inappropriate for this court to stand aside and make Oregon couples wait while other litigants in other cases set out arguments before the Ninth Circuit that may or may not have any impact on this case here and they can't speak for Oregon. It's just inappropriate for this court to wait to

decide the fundamental rights of Oregonians while the Ninth Circuit acts. So those two cases before the Ninth Circuit, the first is the Sandoval case that you mentioned. That

67 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 involves the restrictive marriage amendment in Nevada. first thing I would say about that is there is no substantive due process claim in that case, and so if this court were to determine either as an alternative to equal protection or base its decision on substantive due process, it doesn't matter what the Ninth Circuit says in the Sandoval case. process issue. Secondly, in the Sandoval case, it was decided before both Windsor and before SmithKline, and the District Court there relied on the same alleged state interest of upholding the so-called traditional institution of marriage. That was a state interest aggressively put forth by the State of Nevada, and as we have just heard, the State of Oregon does not share that same interest. So even just The State This court's opinion will stand on the due The

basically on the facts, this case is different.

of Nevada and its claimed state interest cannot speak for the State of Oregon and what interest Oregon might have in its law. But even hypothetically if Oregon were putting forth maintenance of the so-called traditional institution of marriage as a rational basis for this law, Sandoval will surely find that based on all of the law that my colleague, Mr. Isaak, cited before and the Supreme Court holding that the mere antiquity of a law is not sufficient basis to

68 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 forward. justify it under equal protection, surely the Ninth Circuit will reject that alleged state interest, just as all ten Federal District Courts to have heard these questions around the country have done in the wake of Windsor. So -THE COURT: Do you know anything more about

Sandoval with regard to the state now reversing itself and saying, we are not defending? Is it possible it's just not

even going to be heard by the Ninth Circuit, or is it still going forward, do you know? MS. MIDDLETON: As far as I know, it's still going

It was set for argument, and then the argument

date was taken off calendar at the request of one of the judges on the panel, and we don't know why. It was in the

wake of Nevada withdrawing its brief, but there are other parties in that case, an intervenor that has continued to defend and have fully briefed it. So there's no reason to

believe it won't go back on the calendar is what I understand. THE COURT: Okay. So that's the one case.

MS. MIDDLETON:

So for both of those reasons, all of those reasons, this court should not wait for guidance out of the Ninth Circuit, plus who knows when they'll decide. be many, many months or even a year from now. It could

69 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 second one is the SmithKline case that we have talked about here quite a bit already. Again, that case

does not even address the question of substantive due process, so if this court rests its decision on a fundamental right to marry, nothing that the Ninth Circuit might do in SmithKline could affect the outcome of this case. Further, as my colleague -- or as Ms. Williams, I believe, explained, the panel might not even take up the question of heightened scrutiny in the SmithKline case. have no idea what they are going to take up. So again, there's just no purpose in delaying vindication of the rights of -- constitutional rights of Oregonians to wait for these speculative, potential, maybe guidance that we'll get out of the Ninth Circuit. THE COURT: But isn't -- and I want the state to We

address this, but isn't the one unique issue about this case that the other cases don't share is that where things stand presently, if I were to decide as everybody in this case seems to want to have me decide, there's not going to be an appeal. MS. MIDDLETON: Yes, that's correct, Your Honor.

And so that would mean that this case would be in the same position as essentially the Perry case in California where the Federal District Court decided -- now, that case did go

70 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 up on appeal in many layers, but there are no more appeals available. The Federal District Court decision is standing.

And no matter what the Ninth Circuit or the U.S. Supreme Court might decide this year or next year or years from now about the rights of same-sex couples to marry, marriages are continuing to go on in California, the Federal District Court's decision is in place, and the only way that might change would be for a subsequent litigant to rely on subsequent binding authority from a higher court to try to overturn the results in the Perry case. in the same position as that. And there's no reason to stay this court's hand waiting for guidance in the future when we could be vindicating the rights of Oregonians right away, allowing people to celebrate their marriages, and then if a later court decides something different, someone can come forward and make that case again. There's nothing preventing the Our case would be

judicial process from operating as it normally would in those circumstances, but it doesn't give a reason to wait now. THE COURT: But we could be left with a -- well,

we wouldn't be left with a very confused electorate in Oregon, but we would be left with language in the Constitution that bans same-sex marriage, a court that has said that's unconstitutional and higher courts unable to

71 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 today. THE COURT: Okay. I would like to say one more word review that to say, you got it wrong but there's nothing we can do. MS. MIDDLETON: THE COURT: That's right.

That's okay under the rule of law. Well, if a later court were to say

MS. MIDDLETON:

you got it wrong, then a future litigant can come forward and say that permanent injunction should be lifted and Measure 36 should be enforced again, and then some future court would have to decide that issue. THE COURT: Okay. All right.

MS. MIDDLETON:

But that's obviously not before us

MS. MIDDLETON:

about an issue that none of the parties have briefed but might be on the court's mind, and that is the justiciability of this case in light of state's decision not to defend the anti-marriage amendment. It was a similar situation in the Windsor case where the federal government decided not to defend the so-called Defense of Marriage Act, and the Supreme Court, in looking at that issue, determined that because there was an actual controversy between the parties where Ms. Windsor was due money back from the federal government that it wasn't paying, that satisfied the Article III case or controversy,

72 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. THE COURT: MS. POTTER: Ms. Potter, thank you. And the questions that you have asked fundamental jurisdictional premise, and the same is true here because the state is not issuing marriage licenses. we certainly have a case or controversy. THE COURT: I agree. In terms of prudential concerns So

MS. MIDDLETON:

about not having an adversary, the court, in Windsor, went on to say because the rights of thousands of couples are at issue here and because there is no possibility, at least in the foreseeable future, of an adversarial proceeding with the Executive taking the position that it does, it's more important that the court go ahead and decide the issue than to await an adversary. position here. So there should be no question about justiciability of this matter. THE COURT: appreciate that. MS. MIDDLETON: MS. POTTER: Thank you. All right. Thank you very much. I And again, we are in the same

Shirley Potter for the state, Your

have been handled capably by the other lawyers, and I am not going to -- a number of my answers would have been the same. I am not going to repeat that, so I just have a few points

73 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 to make from the perspective of the state. THE COURT: MS. POTTER: Okay. As Ms. Williams pointed out, this is

an area in which states have authority to make decisions about policies, and until they are actually taking away people's fundamental rights, the federal government doesn't have a chance to come in and tell them how to make those decisions. And as a result, a Ninth Circuit decision on the

Nevada case would be necessarily based on arguments that were made by the county clerk in Nevada that is still proceeding with the Sandoval case and would be based on Nevada public policy if the Ninth Circuit were to render a decision in favor of the county clerk. Nevada has made different policy decisions. It

has limits on domestic partnerships and the relationships, the way that those relationships are recognized and what sorts of relationships can be recognized that don't exist in Oregon law. It doesn't have that same long-standing policy

of recognizing and supporting families that Oregon does. So a decision by the Ninth Circuit in Nevada, even if it were a decision that the ban in Nevada was justifiable, would not necessarily control a decision by this court. And even if there were an appeal, the

Ninth Circuit might well reach a different decision here. It wouldn't bind this court.

74 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 On the question of the public, you had asked, aren't we asking you to tell them they went through a hollow exercise. I would argue we are actually asking you to make

a statement that people don't get to vote on other people's rights. are for. That's the purpose of a right. That's what rights

And people don't get to give them and take them But that's the message that you

away by a popular vote. would be sending. THE COURT:

But I am also sending -- you are

asking me to send a message to your legislature that they got the statute wrong as well. MS. POTTER: THE COURT: MS. POTTER: Yes. Okay. With respect to that limited

question -- they get many things right, but with respect to that statute, yes. The answer is yes.

And my other notes were because there isn't an appeal, that is correct, that if the court were to rule in the plaintiffs' favor, we would not be appealing, but Ms. Middleton said everything that I could have said on that question. THE COURT: MS. POTTER: Okay. There are other avenues for people to

pursue that in the event that decisions go away that we think they shouldn't at upper levels.

75 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 it today. THE COURT: MS. POTTER: THE COURT: Okay. Thank you, Your Honor. All right. THE COURT: MS. POTTER: THE COURT: MS. POTTER: All right. I had one other area. Sure. And it may not be something to get

into today given that we'll be back here in three weeks and there's sort of the procedural status. THE COURT: MS. POTTER: Um-hmm. To the extent that the court -- if

the court were to rule in the plaintiffs' favor, with respect to the remedy, the state has some thoughts on what a judgment might look like, again, given that this is an area in which the state has authority to make decisions about how to implement state policy -THE COURT: MS. POTTER: THE COURT: Right. -- recognizing people's rights. And if we get to that point, I will be

asking the parties about language specific -- I am not going to just write an order without talking to you. We'll have a

discussion about how that order needs to be addressed if we get there. MS. POTTER: Then I will keep my mouth shut about

76 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 Have I covered everyone? All right. here today. I think so.

Folks, I do appreciate your discussion

I did want to -- I meant to mention at the

beginning, I have received a number of e-mails and letters from concerned citizens. parties. I haven't passed those on to the They

They are generally just general concerns.

almost unanimously have been from Oregonians who are very concerned about some of the issues raised and, in particular, concerned about redefining traditional marriage. I have had letters sent to my home, to the office. had e-mails. Here's what I want to say: You know, I know the The notes that I have

debate gets very shrill on a national level.

have been sent to me, some of the kindest words have been said, even though people are very passionate about it, the last note being from my mother, who had very strong feelings but still was very kind. So I just want people to know that because I don't respond to the notes. I mean, obviously it's not

appropriate, I think, for the court to engage in a discussion with folks in order to shape any kind of opinion. But, you know, I do appreciate the kindness in the comments that have been forwarded to me. Universally every one of

them, nothing -- I mean, when I see a letter coming to my home address, my first thought is oh, no. And in fact, I

77 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 have been very -- I don't know if surprised is the right word, but I was very impressed that the debate can be kind; a lot of people saying they were going to pray for me, and I do appreciate those comments. So with that, thank you all. work you have done in this. issue in May. I appreciate all the

We'll see you back on our next We are in recess.

Thank you very much.

(The proceedings were concluded this 23rd day of April, 2014.)

78 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/Kristi L. Anderson _______________________________________________ Kristi L. Anderson, Certified Realtime Reporter I hereby certify that the foregoing is a true and correct transcript of the oral proceedings had in the above-entitled matter, to the best of my skill and ability, dated this 28th day of April, 2014.