14-5003 & 14-5006 Bishop v. Smith

U.S. Court of Appeals for the Tenth Circuit

Oral Argument – April 17, 2014

[Transcript Created From Official Audio by Ragavendran G.]

CAMPBELL: Good afternoon. May it please the Court: James Campbell on

behalf of the Defendant Sally Howe Smith. From Oklahoma's inception,

marriage has been a man-woman union. Plaintiffs' efforts to change that

are subject to deferential rational basis review, because their

arguments seeking to invoke heightened scrutiny have failed. To begin

with, the marriage amendment does not impermissibly discriminate on the

basis of sex. Even though this argument has been raised, repeatedly, in

the many same sex marriage cases that have been litigated around the

country, no appellate court, state or federal, with the exception of a

2-justice plurality in Hawaii's Baehr versus Lewin decision has ever

credited the sex discrimination claims that the Plaintiffs press here.

Specifically, a law does not impermissibly discriminate on the basis of

sex, unless it treats men in the class more favorably than women in the

class, or, vice versa. Here, the marriage amendment treats the sexes

equally-

JUDGE HOLMES: Well why... why would that be the case? I mean, in Loving,

although the line was race, the State raised an equal application

argument, and the Supreme Court went on to find that there was an equal

protection violation. And the line that's being drawn here, arguably,

is the line that is entirely predicated on sex. On gender. And so why

would it NOT be the case that there would be an intermediate scrutiny

as it relates to that?

CAMPBELL: Your Honor, Loving, to be sure, observed, as you just

acknowledged, the fact that equal application does not immute- immunize

a law from strict scrutiny. But, and this is the critical point, the

Supreme Court has never extended that principle to sex discrimination

claims. In fact, in VMI, the Supreme Court was explicitly clear that it

has always treated race and sex discrimination differently. In fact, in

that case, the Court said, race discrimination... I'm sorry... gender

discrimination exists when the Government closes a door, or denies to

men or women an opportunity. And that simply isn't the case here,

because the marriage law treats men and women the same. It's not as if

the State, for example, said that men can marry other men, but women

couldn't marry other women. THAT would be sex discrimination. What's at

issue here is an equal treatment of the sexes, and thus, this case does

not involve impermissible sex discrimination. Furthermore, the Supreme

Court, in the Cleburne decision, provides another explanation for why

rational basis is the proper standard here. In Cleburne, the Court said

that rational basis review applies whenever the group at issue has

distinguishing characteristics relevant to interests the State has

authority to implement. Here, the natural procreative potential of

opposite-sex couples distinguishes that group from same sex couples.

And THAT difference is relevant to the procreative and child-rearing

interests in marriage that the State has authority to implement. So for

that reason, under the Supreme Court's guidance in Cleburne, the

rational basis standard applies. And I... I would add to that that that

is the precise analysis that the Eighth Circuit in the Bruning case,

and New York's High Court in the Hernandez case, used in deciding that

equal protection challenges to man-woman marriage laws are subject to

rational basis review. [pause] Regarding Plaintiffs' fundamental rights

argument, the Court must start, as Glucksberg instructs, with a careful

description of the asserted liberty interests.

JUDGE HOLMES: And why are we at Glucksberg, to begin with, when we have

the argument that this is a fundamental right to marriage, therefore

there is no need to go into the Glucksberg analysis at all?

CAMPBELL: Your Honor, the Glucksberg analysis applies in ALL fundamental

rights claims.

JUDGE HOLMES: Well, there is a fundamental right to marriage, and so,

when... what... what more needs to be described? We have that.

CAMPBELL: The Glucksberg analysis cannot be discarded simply because

the litigant comes to the Court and says that they are claiming a... an

already established right. The Court still has to carefully describe

the right at issue in order to ensure that the litigant isn't trying to

refashion a new right in the garb of an old right. So, the Glucksberg

careful description analysis MUST apply in ALL fundamental rights

claims, not just where somebody is admittedly claiming a new fundamental

right, but also in instances where they are trying to fit their claims

into an already established fundamental right.

JUDGE HOLMES: Well, let's assume that's so, then why don't you explain

why this isn't... why this doesn't fit into the existing pattern of

marriage?

CAMPBELL: Sure. Umm... The established fundamental right to marry is

the right to enter the relationship of husband and wife. And the Supreme

Court's past decisions in Loving, Zablocki, and Turner - all those cases

involved marriages between a man and a woman AND, in all of those

opinions, the Court expressly reflected marriage’s abiding connection

with procreation and child-rearing.

JUDGE HOLMES: In Turner? How so in Turner?

CAMPBELL: In Turner, the Supreme Court specifically talked about the

consummation of the marriage, and it also talked about legitimizing

children. But if there were any doubt on that point, whether what the

Supreme Court has meant when it’s previously talked about the

fundamental right to marry - if there were any doubt that they were

referring to the relationship of husband and wife, the Court has twice

removed it. First, just five years after Loving was decided, the Supreme

Court in Baker, summarily and unanimously, rejected the argument that

the fundamental right to marry includes the right to unite two people

of the same sex. And more recently, just last year-

JUDGE LUCERO: What do you say to... the suggestion... not the

suggestion... the direct statement in the trial court opinion in this

case that Baker has been implicitly overruled by Windsor?

CAMPBELL: Our... our response to that, as we've indicated in our

briefing is that whatever the subsecu- “subsequent doctrinal

developments” dicta might mean, it cannot mean that a lower Court is

free to depart from directly on-point precedent from the Supreme Court.

JUDGE LUCERO: But... but, the case was before the Supreme Court.

Questions were asked about it at the Supreme Court. And the majority

chose to disregard it, and essentially, overrule it. They didn't say

"we overrule it." They... they... the... worse, they just ignored it.

Left in the corner. All by itself.

CAMPBELL: Your Honor, are you specifically referencing what the Court

did in... in Windsor?

JUDGE LUCERO: Yes.

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

was-

JUDGE LUCERO: Let me... let me put the question differently. Could the

Court have done in Windsor, what it did, if the question...

[paraphrasing] if the proposition that Baker did not raise a fundamental

federal question, was in fact correct?

CAMPBELL: Absolutely. The Court could still have done what it did in

Windsor, and still left Baker intact. Because the questions are

different. If... If we look at Windsor, we see many distinguishing

characteristics - first and foremost, is the fact that the Court

repeatedly... Well, let’s start with the fact that the Court premised

its analysis... its careful consideration analysis on its conclusion

that the federal Government unusually departed from its history and

tradition of deferring to State laws on marriage. So, that raised a

unique situation that isn't present here, wasn't present in Baker, and

thus is an entirely different case. Returning to-

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

CAMPBELL: Sure.

JUDGE LUCERO: Not so quick. If the Court had done that, and said, this

is a federalism issue - the federal Government has no right to intrude

into the terrain of the States - that would've ended the case. But the

Court didn't do that. The Court went much further, and it said that

this was a fundamental Fifth Amendment violation, Fourteenth Amendment

violation (theoretically, by virtue of application to the States)...

and... that is the very federal question involved in Baker.

CAMPBELL: I w... I would disagree with that, your Honor. The cases are

distinguishable in many points - I would also direct the Court to

Windsor's statement, right at the end of the decision, where it confined

not only its holding, but also its opinion, to the unique situation

where the federal Government declined to recognize same sex marriages

made lawful by the States. So, again, there is significant

differences... Moreover, if Windsor was foreclosing this case, or if

Windsor was displacing the Baker decision, much of what the Court said

there doesn't make any sense. The Court emphasized the right of States

to define marriage for themselves. The Court also mentioned that States

may differ in terms of who may marry within their States. That

question... that... that recognition makes no sense if this question is

foreclosed. Moreover,... I'm sorry. Moreover, the Windsor Court

expressly extolled the virtues of allowing the formation of consensus

when the people decide the definition of marriage. That's EXACTLY what

the people of Oklahoma did.

JUDGE HOLMES: And all of this was qualified by the need to respect the

individual Constitutional rights of the people involved, SEE LOVING.

So... it seems to me - and the district court here found that significant

- I think, in fact, it is significant. Wh... Why doesn't that matter?

I mean... the State cannot define marriage in any way it wants and

trample Constitutional rights, right?

CAMPBELL: Th... That's correct. The State certainly has limitations on

the definition of marriage. But the citation to Loving - the lower court

said it was a qualification of significance or something of that sort

- I... And we would resist that, your Honor, because Loving is a clearly

distinguishable case. Loving is a case that involves racial

discrimination, and race is irrelevant for any legitimate purpose of

marriage. In contrast, the sex of the spouses is directly relevant to

the Government's interest in procreation and child-rearing. I'd like

to, if there are no other questions, reserve the remainder of my time

for rebuttal. Thank you.

=====================================================================

HOLLADAY: May it please the Court: My name is Don Holladay. I represent

the Plaintiffs below, also Appellees, and Cross-Appellants here. There

are so many things legally wrong with the Oklahoma same sex marriage

ban that triggers and fails Constitutional scrutiny on at least four

different levels.

JUDGE KELLY: Before we get there, uh, I’m a little concerned about

standing in this case, in that you have not challenged any of the

statutes uhh... that are on the books in Oklahoma. Uh... And it doesn’t

seem that, assuming we agreed, uh... that it would... it would give you

any relief, because of that fact.

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

JUDGE KELLY: Certainly...

HOLLADAY: When we... When the Constitutional amendment was passed

banning same sex marriage in Oklahoma, there were two statutes on the

books. That Constitutional amendment constituted a complete scheme over

the subject matter of those two statutes. It in effect, subsumed those

two statutes, and left them, I’m afraid to use the Latin term functus

officio, but... dead on the books, so to speak, because-

JUDGE KELLY: They were not in contradiction to the Constitutional

amendment though.

HOLLADAY: Beg your pardon?

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

HOLLADAY: No, they were identical.

JUDGE KELLY: It’s one thing if... if the Constitutional amendment

contradicts the statutes – the Constitutional amendment will control,

it will take over the whole area. Do you have any case as to the contrary

in that respect?

HOLLADAY: Yes, actually we do, your Honor. We had... We cited, I

believe, the Fent case, and we also cited the Hardwick [sic, should be

Hendrick] case, both of which stand for the proposition that the time

honored rule that has been in Oklahoma for over 100 years, is that when

a Constitutional amendment or a new statute replaces, in its entirety,

the subject matter of an existing statute, then that statute passes out

of existence. This isn’t some type of repeal-by-implication where you’re

just simply appending statutes on the books and you have to decide

whether it is an amendatory provision that comes later. The latest...

The Constitutional amendment that was passed by the people on November

2, 2004, in its entirety, covered the entire subject matter of the two

statutes that were on the books. And so that Constitutional amendment,

in the words of the Oklahoma cases that I’ve cited, became a complete

scheme that took out whatever subject matter was left in those two

statutes. [pause] Then the other standing issue that is before the Court

is the one that this... a panel of this Court decided on June 5, 2009

in this same case, where that panel of the Tenth Circuit raised sua

sponte, the question of whether or not we have sued the appropriate

Defendants, both of whom were members of the executive branch – the

Governor and the Attorney General. And this Court... this panel of the

Tenth Circuit found, and correctly so, that we had not sued the proper

person, because the recording, the licenses – the licensing itself, and

the recognition of marriage licenses falls under the umbrella of the

Judicial branch of the Government, and not the Executive branch.

JUDGE LUCERO: How so recognition?

HOLLADAY: [big sigh] Well, I can... There’s two or three examples I can

give to you, but the Judicial branch, and by that I mean ultimate

recognition, recognizes marriage licenses – the issue may have to do

with divorce, it may have to do with child custody, it may have to do

with an inheritance matter, it may have to do with bigamy. The Judicial

branch of the State of Oklahoma is one to make the ultimate

determination as to whether or not to recognize that marriage license

for any of those purposes.

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

HOLLADAY: Beg your pardon?

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

HOLLADAY: No, we don’t. What you have before you, your Honor, is on

June 5, 2009, you had the question of whether or not there was, for

Article III justiciability purposes, whether or not there was “some

connection” between this two Defendants that we had sued – the Governor

and the Attorney General – and the claims of non-recognition that were

in the complaint. And this Court correctly ruled, that the Executive

branch does not have - at least with respect to the recording, and the

licensing, and the recognition - the ultimate responsibility over that

function. We need somebody who, in an official capacity, has more of a

connection.

JUDGE KELLY: Well, I understand that. But... we don’t have any of those

situations that you’re talking about. And... when a person moves into

Oklahoma, they don’t have to go down and register their marriage, do

they?

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

JUDGE KELLY: When a person moves into Oklahoma, there is no provision

for them to go down to the courthouse, or to the County Clerk, or

whomever... and register their marriage... If they are married in New

York, or New Mexico, or wherever.

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

JUDGE KELLY: Well, in the event you have a situation like that, then

you’d have something that was... that we could get a handle on. Can we

just say, well, it might happen in the future?

HOLLADAY: Oh, I don’t think so, your Honor. If a person moves in to

Oklahoma, and let’s say, wants to get married to someone-

JUDGE KELLY: That’s diff-

HOLLADAY: -then the Court Clerk-

JUDGE KELLY: Right.

HOLLADAY: -as part of her statutory or his statutory duties, by statute,

is going to have to make sure that those applicants are qualified to

marry. And one thing that they have to do-

JUDGE KELLY: No, we’re... I think we’re together on THAT. But what about

the non-recognition of out-of-state...

HOLLADAY: Well... Well, that-

JUDGE KELLY: -situations...

JUDGE HOLMES: And what about the affidavit-

HOLLADAY: Respectfully, I understand- beg your pardon?

JUDGE HOLMES: What about the affidavit here?

HOLLADAY: Let me... Let me answer both of those questions by finishing

the sentence that the Court Clerk has to determine that the parties

getting married are qualified. And we have another statute that says,

you cannot have two marriages at one time. So, every time a Court Clerk

is looking at the qualifications of applicants, they must first

determine whether or not there is another marriage in existence. Now

with respect to the affidavit, Judge Holmes, I think the short answer

to that is that the affidavit was... uh... under-inclusive and too

narrow for two reasons – it did not take into account the judicial

reasoning that it happened with respect to the June 5, 2009 decision

which said, this person IS the official... is official judicial

personnel, acts as an arm of the Court, in effect a representative of

the Court, in effect an agent of the Court, and, having that type of

connection makes the district court Clerk, a more suitable connected

Defendant than the ones that you have. The affidavit, on the other hand,

simply said, I have no official duties to recognize licenses, whether

from out-of-state or in-state. Well, of course, the Clerk does! She has

to determine, by asking the applicant, do you have another license, and

if so, has to do something about that. Can you imagine what’s going to

happen if the district courts affirms... if this Court affirms the

district court’s ruling that the licensing provision is invalid? You’re

going to have hundreds and hundreds and hundreds of applicants that’ve

been married in California, that’ve been married in New Mexico, going

to be lining up at the Court Clerk’s offices in Oklahoma saying, we

want to be remarried. And the first thing that Clerk is going to have

to do is to decide whether or not those California licenses are valid

or invalid, whether those New Mexico licenses are valid or invalid.

JUDGE HOLMES: You lost me at the connectedness. I... I was with you

there... until you got to that point-

HOLLADAY: Okay.

JUDGE HOLMES: -why... why would they have to do that? I mean, these

Plaintiffs here didn’t have to go to the Clerk... Court Clerk and say,

you know I’m married in California, would you recognize me and give me

an Oklahoma marriage? They’re either married or they aren’t, right?

HOLLADAY: Well, if you have a marriage license that you have obtained,

and now you want to have the Court Clerk issue you a marriage license,

yes, that Court Clerk is going to have to determine whether that first

one is valid or not-

JUDGE HOLMES: Yes, but the factual predicate is, why would you have to

do that? I mean, if you’re married in California and you’re living in

Oklahoma, if we were to affirm that the... the district court as it

relates to the ban provision, then there is no reason to ever go in, is

there? And there is no reason to go in, period! I mean, you... you’re

either married or you’re not! I mean, and... and... at least as it

relates to the Court Clerk, I can see her factual scenario where

somebody comes and says, I really want to be an Oklahoma... I want an

Oklahoma marriage. And then the Court Clerk has to decide whether their

marriage is valid. But if they don’t do that...

HOLLADAY: Well... [sigh]... And I... I understand your position for

sure, Judge Holmes. I would say that if the California couple has a

valid license, excuse me, a valid marriage, and moves to Oklahoma, the

first thing that Court Clerk is going to have to decide is whether or

not that same sex marriage in Oklahoma.

JUDGE KELLY: Why would the Court Clerk ever even have to decide

anything? Why would it even come before the Court Clerk?

HOLLADAY: [stumbles]

JUDGE KELLY: Well, I see there is a situation where it MIGHT, but you

don’t have that situation here.

HOLLADAY: Well, it will come before the Court Clerk, or in litigation

it will come before the Judicial branch-

JUDGE KELLY: It MIGHT. I mean... that’s all out in the future, down the

road, maybe it will, maybe it won’t.

HOLLADAY: This Court explicitly, really, instructed us to sue the Court

Clerk as a more appropriate party, and really, the only other party

that would have ever been appropriate would have been the Court itself.

JUDGE LUCERO: I think the OJ did a little more than that, actually. The

OJ said that the determination of marriage – and actually used the word

‘recognition’ – was a judicial function, not an executive function. And

I take it that Oklahoma is structured constitutionally like all the

other states, that is to say that the Governor, the Attorney General,

all the executive officers were therefore under the law... in the

case... the executive officers immune from suit. Really, the OJ left no

other relief than the suit against the judicial officers, and that what

in fact happened.

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

Lucero.

JUDGE HOLMES: So, in that situation, would the Court Clerk be the face,

essentially, of the judiciary for purposes of this matter?

HOLLADAY: We think so, Judge Holmes. It... You’re left with... of

course... this Court... this panel of the Tenth Circuit determination

that the Court Clerk was the more appropriate Defendant. The unsaid

part was, under this panel’s analysis was, the only other Defendant

would have been the Court itself. And there is-

JUDGE LUCERO: The action is a declaratory judgment action, is it not?

The action for injunctive relief combined-

HOLLADAY: It’s an action for declaratory relief, Judge Lucero, as well

as well as to enjoin – and in fact, the injunction has been entered

with respect to the licensing provision, but then suspended, and... on

appeal here. And the other issue that’s connected with this in some

way, Judge Kelly, but, in another way separately, is the severability

issue that is going alo... side by side with the standing issue, because

of the ulterior posture that this case came to... to this Court. At

the... at the conclusion of the district court’s action below, it found

the licensing provision of the ban to be unconstitutional. But then, in

reliance of the affidavit that Judge Holmes referred to, it decided

that there was no standing to address the non-recognition portion of

this unitary ban which has one effect – banning all same sex... in

marriage... in Oklahoma. The district c... A severability analysis is

required under State law to be made once a part of a pr... of a statute

is cut out as unconstitutional. You... At that point in time... as a

matter of State law, the federal court has to see what the effect of

cutting that portion out-

JUDGE HOLMES: And... And isn’t part of that test, an enquiry into

whether the enactor would have wanted that other provision to stand –

whether it would have effectuated a purpose that that enactor wanted.

And if that’s the case, it would seem to me that there would be at least

a reasonable argument that 70% of the Oklahoma electorate would have

wanted that non-recognition provision to stand irrespective of what

happens to the ban. And is there any basis to... to believe otherwise?

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

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

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

upheld... is deemed constitutionally infirm, you can’t be giving out

licenses at the front door and saying at the back door, no, we aren’t

going to recognize those licenses.

JUDGE KELLY: But who’s doing that?

HOLLADAY: Well-

JUDGE KELLY: Who is standing at the back door, not recognizing

something?

HOLLADAY: Well, I was trying to make-

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

HOLLADAY: I was trying to make the analogy to Judge Holmes’s question

that on severability, you know... if the severability analysis comes

out that this is a uniform statute... unitary statute, mutually

[indiscernible], then the second one falls with the first. Of course,

you don’t reach standing law of the case with the constitutionality of

the non-recognition provision. They all collapse. Because, the first

one was intricately tied to the second one. My time is up?

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

=====================================================================

CAMPBELL: [big sigh] Just to... start where... the questioning was...

uh... was focusing, and that is on the... this idea of standing and

severability. Specifically, on those points, I would emphasize that the

prior panel of this Court, all of the case laws that it cited from

Oklahoma, it only focused on the issuance of marriage licenses in state,

and the processing of those licenses. There is NO authority anywhere in

Oklahoma law to support the idea that my client, Mrs. Smith, recognizes

out-of-state marriages.

JUDGE LUCERO: Counsel, let me ask you this. Because it is [stumbles]

... concerning me about these Plaintiffs. These Plaintiffs could never

come to the court to sue the Governor or the Attorney General because

that’s, for better or for worse, we don’t re-litigate, and that’s

decided. And, if we agree with you that they can’t see... sue the Clerk,

then... then you’re in a situation where they can’t sue anybody. Uh...

Why don’t we then give in to “capable of repetition, yet evading

review,” for these particular Plaintiffs?

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

They certainly-

JUDGE LUCERO: Who... Who’d they sue?

CAMPBELL: In fact, we’ve suggested, in our briefing that it depends

first and foremost on the purpose for which they seek the recognition.

But, we would... we could surmise that they seek recognition of their

out-of-state marriage license maybe for tax purposes, in which case

they would sue the State official that’s in charge of that process.

JUDGE LUCERO: In Oklahoma, wouldn’t that be the Governor and the...

Isn’t the Department of Revenue of Oklahoma under the control of the

Governor? Isn’t it an appointment at will?

CAMPBELL: Probably, but one of the things that the prior panel said, is

that the mere supervisory control isn’t enough, so you have to sue the

precise official who can give you that authority, and that is the

official in charge of taxes and... and things of that nature.

JUDGE HOLMES: Well then, we’re still stuck with the “law of the case”

issue, and trying to understand why it wouldn’t be the law of the case

that in fact, the Court or the Clerk would be the face of the Oklahoma

judiciary for purposes of this matter, and you say you relied, I think,

on part of the case called Baca, and I’m not going to try and fish

through your... in terms of... talking about the notion that

jurisdiction... was sort of... look aside the law of the case if there

is a jurisdictional matter. Well, is it a distinction with a difference

that in that case, the ruling that sought to be given effect was a

district court ruling, whereas the ruling in this case that is at play

for a law of the case is OURS? In other words, WE’VE said, that’s who

you should sue, and therefore, shouldn’t THAT govern over whether some

district court did that?

CAMPBELL: We... we think that that is a distinction without a

difference-

JUDGE HOLMES: Okay...

CAMPBELL: In addition, we’ve cited a Third Circuit case and it’s cited

right next to it in the brief – I don’t know the name of it offhand –

that also stands for the proposition that the law of the case doctrine

does not absolve this Court from its obligation to satisfy itself of

Article III jurisdiction. But-

JUDGE HOLMES: Well, that’s... I mean... that’s a general proposition.

That doesn’t address the specific point... and... and the reason I focus

on Baca was, it’s OURS, right? And so, that... so I was trying to see

whether there’s some binding precedent out of that that we have to

adhere to.

CAMPBELL: Well, to address that point, it is - the question underlying

this issue of whether the recognition claim was properly brought against

Mrs. Smith – it is an Article III jurisdiction, because, it rests on

causation and redressability. If Mrs. Smith was not the proper party to

sue, then she has no ability to redress the alleged injuries in this

case.

JUDGE HOLMES: I don’t want to keep on eating up your time, but wouldn’t

it be... I mean, but if we had made an Article III determination

previously, wouldn’t that resolve the issue? I mean, if it’s perceived

that we said, sue that person, and that’s the proper Defendant, isn’t

that implicitly an Article III determination that there would be

jurisdiction for such a suit?

CAMPBELL: But this Court must reassess its Article III jurisdiction in

this case, and specifically, the... the language-

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

problem”?

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

JUDGE KELLY: Yes.

CAMPBELL: A... Absolutely. In this Court, that is certainly an element

and an aspect of standing, and in THIS case, by not suing the proper

Defendant, we’re lacking that concrete problem-

JUDGE KELLY: But there is no... Even if we sued the proper Defendant –

I don’t know who that would be, because it’s a... - there is no issue

with respect to non-recognition anyway.

CAMPBELL: Well, I-

JUDGE KELLY: Maybe I’m missing something, but, it seems to me that when

the panel... our previous panel... they were not looking at every single

potential that might come down the road. They were confined to the facts

of... of that case. And... there was no particular issue on non-

recognition then either.

CAMPBELL: I... I think that one thing that... that the question is

getting to is the fact that the Plaintiffs seeking recognition of their

out-of-state marriage licenses never approached Mrs. Smith and sought

recognition.

JUDGE KELLY: They never approached anybody!

CAMPBELL: That... that’s correct.

JUDGE KELLY: Alright, thank you.

JUDGE LUCERO: May I ask a question?

JUDGE KELLY: Sure.

JUDGE LUCERO: I think we decided before that we could ask a little...

few more questions if we... had the time. You may know from the last

hearing that... the questions I asked of Utah if you’ve heard that tape.

I’m concerned about the children of... of gay par- gay married couples

whose marriage has been recognized in a sister State. With respect to

those children, what will be their legi- relationship in Oklahoma under

this amendment? Are those recognized as legitimate children or not?

CAMPBELL: If one of the parents adopts that child, they will be

recognized as having a parent-child relationship. That’s correct.

JUDGE LUCERO: But what if they both adopt?

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

JUDGE LUCERO: But that... that... that’s... that’s clearly... I mean,

you’ve got the case of... [stammers] I hesitate because I do not know

the exact pronunciations... Heather-Finston? [sic] In that case,

doesn’t that case involve the adoption of an out-of-state adoptee by

the... by two women?

CAMPBELL: It does, your Honor, and... Let me address that case. That

case is different from what we’re dealing with here. That case was

brought under the full faith and credit clause, and it involves the

recognition of an out-of-state adoption. This case – there are no

adoptions at issue, so yeah – in the State of Oklahoma, if a same sex

couple comes from another State with a... an adoption judgment, then

that must be recognized in the State of Oklahoma.

JUDGE LUCERO: So doesn’t that undermine all of your arguments about...

the fact that children should be raised by a mother and a father... and

they shouldn’t... ideally, they shouldn’t be adopted... ideally, they

shouldn’t be... have any other kind of relationships? I understand your

argument, but you’re saying, that’s not so, because any couple can go

out of State, adopt a child as long as it is consistent with the laws

of the out-of-state adoption authority, and bring them to Cali- bring

them to Oklahoma from California for instance, and have that marriage

recognized in Oklahoma.

CAMPBELL: Your Honor, there is no contradiction between that and the

policies that the marriage laws of the State of Oklahoma are seeking to

further, and let me explain why. Because, adoption and marriage are

different laws with different policies. The purpose of marriage in

Oklahoma is to channel naturally procreative relationships into

committed unions in order to provide stability to the types of

relationships that are capable of producing unintended children and are

capable of providing children with full biological parents-

JUDGE LUCERO: Well, we say we agree with you a hundred percent that in

an ideal world, that’s wonderful. But, why would a gay marriage... a

gay couple electing to marry and having a stable relationship, and

adopting a child, or otherwise participating in the creation of a child

– why... how would that affect this policy of the... that you’re

otherwise defining?

CAMPBELL: First and foremost, it’s just a different interest – it’s not

the interest that the State of Oklahoma has in marriage, as I just

explained what THAT interest is. That interest isn’t implicated by the

same sex couple, or the same sex couple adopting or raising a child.

That is a separate interest. The State of Oklahoma has preserved marri-

JUDGE LUCERO: That’s right. What I’m asking you is, why is THAT interest

- the gay couple interest - in ANY way, going to affect the heterosexual

couples that want to get married? I mean... I don’t... I don’t

understand the nexus – the connection – you’re making, that if gay

marriage is allowed, that somehow, that’s going to be a poison pill to

marriage by heterosexual couples. I don’t understand.

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

JUDGE LUCERO: I... I’ve... I’ve read your briefs – every word – I

understood the words, I didn’t understand what they were saying.

[AUDIBLE LAUGHTER IN THE COURTROOM]

CAMPBELL: Fair enough. Well, let me try to explain it again.

JUDGE LUCERO: Right.

CAMPBELL: First, let me... let me start by saying, no one knows for

sure what the long term effects of redefining marriage will be. BUT,

people on both sides of the marriage debate acknowledge that it WILL

have real world consequences. And it’s Plaintiffs’ burden to show that

there is no risk that any of those consequences will be adverse. So

they have the burden, and they haven’t satisfied-

JUDGE LUCERO: Adverse to WHAT? I mean... Because, one of those

consequences can be, if the sociological studies that we’ve read are

correct, and that children are best brought up in a stable marriage

relationship, one of the consequences could be, you may find an

explosion of adoption, and children in... who become children of gay

couples. How does that affect the... quotient A, the heterosexual

couples who are also getting married and having children, hopefully not

getting divorced, and hopefully not becoming dysfunctional and, you

know, all the things that happen in society – why does B affect A?

CAMPBELL: Let me... point the Court to two specific amicus briefs that

I think address this issue very well. The first is the amicus brief

filed by Professor Robert George and his co-amici – I think they do a

good job of laying out this issue. The second one is the amicus brief

filed by Professor Alan Hawkins and his co-amici. In addition-

JUDGE HOLMES: The American Sociological Association had a different

take on both of those, right? In terms of its amicus brief took the

position that this no-difference was, in fact, the rule, and there was

no foundation for the belief that... that there would be a different

outcome, or... or an inferior outcome by virtue of STABLE gay

relationships – in other words, they emphasized that the two key

components in determining good outcomes for children were stability and

family resources – parental resources. And both of those have nothing

to do with gender, correct?

CAMPBELL: That... that is the position of that professional association.

But it is not without dispute.

JUDGE HOLMES: And I... No, I don’t deny that. And... and to that point...

the... the... premise of the decision about the burden turns on whether

we are under rational basis review or not, right? I mean, it’s your

burden, if we’re not.

CAMPBELL: That... that is correct, with one caveat, your Honor. I would

point out that even if we’re under a heightened form of scrutiny, that

the burden would not be on the Government to show the potential of harm

from redefining marriage. And, I would specifically point this Court to

two cases that I think bear on that issue. The first one is Nguyen

versus INS, a Supreme Court decision that we cited in our brief, and

the second one is Michael M versus Superior Court of Sonoma County. In

both of those cases, the Court applied heightened scrutiny. And in both

of those cases, the... the law issued through a biological distinction.

The Court upheld both of those biological distinctions even under

heightened scrutiny, because the Court found that the two classes at

issue weren’t similarly situated, and the critical point is that in

both of the cases, the Supreme Court did NOT require the Government to

show that changing the line at issue would adversely affect the

Government’s interests. So, I would... I would recommend the Court

review those cases, because I believe they support the proposition that

even under heightened scrutiny, the Government doesn’t need to show

harm. Now having said that, we believe that... that... we have

introduced sufficient evidence and our amici have amply explained the

harm.

JUDGE HOLMES: Thank you.

CAMPBELL: Thank you, your Honors.

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