challenges to those laws are identical the question is does the fourteenth the moment for him but the state from defining marriage as between a man and a woman states answer is no and thinks that there's three reasons that th injunction issued by the district court should be reversed first that this is a matter that's foreclosed by binding precedent second the laws that issue satisfy rational basis review and third that there's no valid grounds for applying anything other than rational basis review the binding precedent issue is a matter of court hierarchy orderly rules of decision are believe it was said in their earlier argument like a process process challenges to a state law dealing with same sex marriage back in those days the supreme court had to take those kind of cases from state supreme courts under the section twelve fifty seven it was an automatic right of appeal so it had to make a decision the u s supreme court dismissed the appeal for want of substantial federal question and it's well established that summary dismissal prevent lower courts from reaching different conclusions than the supreme court and that summary dismissals have full presidential effect something that's important about it is that it's distinct from an issue  versus feltham rule that's cited in our brief the other thing about doctrinal developments is that even if that wasn't the rule the problem here is that the doctrinal developments argument that put forth doesn't work when you look at what are the doctrinal developments you know side argues well you look at rome or from one thousand nine hundred six well we know rome or was not directly on point it was a dealing with a of gay rights the problem there is not only is it not on point there's an expressed disclaimer in there where the court said they are on this case does not deal with issues of whether or not a blocky case along with the turner case it was being talked about earlier i think that the most important point about all of the general fundamental right to marry cases  from i think the key there is that in some blocking when they're talking about the fundamental right to marry they're talking about it in procreative terms and more importantly in terms of the way that the term right to marry and marriage was understood at the time of the court made the decision there's something and the reason why i know this is the case specifically as a blocky case what you have is you have an opinion by i believe it was justice marshall wrote the majority you had several concurring opinions in one of those concurring opinions justice powell went through and disagreed with the analysis that you can just look to a general fundamental right to marry the reason he disagreed with it because he realized even back then that if you use that line of analysis then it's going to lead to a fundamental right to marry with no limits and we know that that's not the case because there are limits that the state can place on marriage in the point being in just as powers concurring opinion he specifically went through and just like we see in the opinions today when they talk this the things that may be affected by age finding a general fundamental in the unlimited right to marry such as being able to put limits on polygamy age restrictions and so on and so forth case there have been courts that have looked at the issue and said baker that doesn't bind most of the courts looking at these issues say they do but when they have looked at baker versus nelson and said they didn't mind this and my example would be like the problem here but it did baker versus nelson definitely raised the issues that are raised here in this case equal protection and due process going so that route of getting around baker by saying th case doesn't really directly involved in issues like they did in the in the massachusetts case or as i would submit like in windsor that was blags problem with their baker versus nelson argument it's the reason that the question from wasn't part of the windsor case and it wasn't included in the windsor opinion and now th and was not mentioned right that's correct on which would indicate that it's it didn't windsor addressed a different questions of it neither did none of the justices needed to mention baker though it had been briefed but i would absolutely agree with that your honor and i think you can see some others as well the issue of whether or not sexual orientation should be recognised as a suspect class was extensively briefed in the case ginsburg said that i think that that's part of the feel the absence of any mention of it in the opinion could just be a suggestion of the supreme court gave such short shrift to it they didn't even deem unworthy of talking about it not a reasonable o say that there's just been developments in the in the in case law on the fourteenth amendment yes the problem is  and i'll move on your honor thank you i would i would i would just cap it off for saying baker is not overruled by name or by outcome and so it's binding on on the over lower courts where the federal courts or a simple question does the law bear rational relation to a legitimate government purpose the characteristics of rational basis review or supreme extreme judicial deference judges don't substitute their policy judgments for those of legislators and what you're looking for is there any conceivable conceivable rationale for legislate choices the legitimate government interest here is in an area dedicated to the states which is domestic relations and marriage specifically but promoting stable family relationships to approach appropriate naturally the government regulate sex because men and women may or may not are made or may not intentionally create children but when they do the government has an interest in the relationship that the if they ever relationship is formed and when they create a child that their parents provide for the child one way to address it is to ensure that men and women who marry them get married or remain married in a way to do that is incentiv other men and women to do that through subsidies and benefits it's not an incentive to have sex but it's an encouragement for the the man and woman to maintain create maintain a stable family relationship the attacks and some were discussed earlier about problems with it and the over inclusiveness would i think most people with it would agree with that oh they do have an incentive on making sure though that when when but when people do have sex and when it creates children  there we have on cape cod that child needs a stable friendly relationship and it's one i would say this and this is the most important thing about what however we want to call it whether it's the responsible procreation argument or channelling procreation or what have you it's the way it's what the traditional marriage was formed around  it was the legitimate interest behind it in the first place and it's still a legitimate interest today but it might not be the only or the best means for may not be the only or best means but it is a permissible means when you're applying rational basis for you when you're looking at cases like heller where we're talking about an ins means that and  of imperfection cases that are cited in our brief where there's arguments that policy arguments that evidence that the law doesn't do enough or doesn't does too much  doesn't prove that a law doesn't can't pass rational basis doesn't prove that there's no rational basis for the law the best means to accomplish the purpose is not requir one problem with approaching it with an under inclusive over inclusive argument is that it's true that older for older persons and true that there are people that are infertile people t choose not to have kids those those persons are allowed to get married but the problem is you can't draw the line it just fertility if you draw the line just fertility or get into issues like the privacy of the couple in and interfering with their ability and their privacy rights under the law where inclusion wouldn't serve the interest of channeling the pro creative relation plant channeling into the procreative relationships when excluding wouldn't when destroying one group not including another witness or interest as well it's again points that there's not a they may not be the best fit but it doesn't mean that there's no fit at all the other rational bases and the other issues and this came up a lot in the in the case  feature of the federalist system is the social policy that states are allowed to set in domestic relations it's something that windsor confirmed and i think of all the back and forth earlier about windsor and windsor wasn't decided definition of marriage they knew you wouldn't had windsor at all it was because of the state's ability to choose that created the conflict with doma and windsor clearly didn't say that new york has a right to choose to change their definition but nobody else has a right to stick with their original definition i think these things go to the essence of whether you want to call it wait and see ration caution but states are allowed to let other states change the way they do things sit back and watch and wait and see and make their own judgments and legislate incrementally particularly in areas that are dedicated to them exclusively like the domestic relations or sick relations where home my third point your honor was no higher form of but i think that i guess i'm a kong careful consideration careful review something like here's where i think careful consideration fits in i think when you're talking about careful consideration when you're talking about windsor you're actually looking at can we use and what's developed is the animist doctoring that's discussed in our briefs in order to look for clues for animus that might justify careful consideration or something more than rational basis for a view in windsor the court looked was able to look at the structure of the law what does it do it's an unusual deviation from the norm  congress to be legislating in an area that is traditionally an area for the states you look at the structure of it and then they had legislative history in the title and the things that they looked at something it wasn't described as rational basis plus in the opinion i think we're talking about careful consideration so you know i believe it's something different but the important point is how did it how did they get to that and the way that they've gotten to that i think another case like that would be roemer itself where it's it's rational basis for a view but they're looking at the unprecedented and unqualified disability on the breadth of the of the law that colorado had passed back in the ninety's and then look into whether or not there was it could be if it was to be explained by anything but animals when they when they were able and satisfied that that couldn't be anything but animals because there was the structure indicated that the scope and the breadth of it was so the broad and then the rational reasons offered by the the state were rejected then that's why you  had the laws fail in both those cases so they both failed rational basis review own but it's the analysis of how the thing the courts got to it that was different oh the court below didn't didn't  conduct that analysis judge reads he just looked at it and overlaid windsor on top of the mississippi law and said you can look at windsor in exactly what it is and look at the mississippi laws and say exactly the same but we know that that trigger and that structure that triggered the enemies is missing because when the mississippi legislature enacted the statute it's an issue here and when the the people in the city voted on the constitutional provision own they were not acting beyond their sovereign law making author someplace that they didn't belong they weren't making rules about something that they didn't have any business making rules about states have been making the rules about marriage like this since the beginning of our country and so i think that that's what distinguishes windsor when of whether or not sexual orientation can be recognized as a as a suspect class or a cause i suspect class the state's position on that is that that's foreclosed as a matter of on the panel opinion and oh i think that the team at it and i guess what i'm understanding is we're talking about a acquires i suspect class and that's the label for heightened scrutiny as well and i guess that that the point here is that's what folded into this idea of being part of the the courts and it was doctrine cases when you're looking it can you can you say that the law is justified but anything but by anything but animals and good morning your honors may please the court i am delighted to be down here in new orleans i'm apologize for bringing our cold wet or our cold weather with us and it's an honor to be arguing this case  the john minor wisdom courthouse because of the mississippi statute in constitutional amendment at issue in this case many thousands of gay people in mississippi are being treated as second class citizens marriage obviously facts practically every sphere of day to day life from death and taxes to children and benefits to status and dignity as justice kennedy explained in windsor one of the main problems was that it humiliated tens of thousands of children now being raised by same sex couples the exact same thing is true here but you don't have to take my word for it my clients josee in karla's then four year old daughter grace begged her mothers to get married so that they would be like other families the supreme court made it clear in windsor that gay people have dignity under the law that is equal to the dignity of everyone else and i'm going to correct if your honor doesn't mind my brother from louisiana the dignity issue in windsor did not come from the political process in the state of new york e d windsor was married in toronto canada in two thousand and seven her spouse the aspired died in two thousand and nine the new york legislature went through the political process that my brother talked about and passed the bill in two thousand and eleven she would accept the fact that gay people have equal dignity than any purported justification for the government to treat them differently in marriage is unconstitutional no matter what level of scrutiny applies in the lowest form of rational basis review as we your honour's have already talked about today a court must ask whether the classification bears a rational relation to a constitutionally permissible objective in the st joseph abbey case decided in two thousand and thirteen this is a court explained that it will insist that the basis be rational in other words the court's analysis and i'm quoting from that case does not demand huge issue blindness to the history of a challenge rule or the adoption nor does it require courts to accept nonsensical explanations for this reason a hypothetical rationale even post hope cannot be fantasy here given that mississippi does to limit marriages to fertile people to prohibit adoption three penalize married couples with children who divorce and four actually concedes that gay people are just as capable parents and straight people then the state's principal rationale for excluding gay people from marriage to some hunchy are not responsible procreation is irrelevant irrational and to much of a disconnect to pass constitutional muster and on no to other things the statute here is not economic regulation we're not talking about the kind of economic regulation at issue and footnote four of carolyn products this is the other kind of law the kind of law the cost issues of personal liberty and personal dignity moreover the casket law at issue in the st joseph case was not directed when it was passed at the monks per se here there could be no question whatsoever that the laws  issue here were directed specifically at gay people and excluding them from the benefits and protections that other people have and from fencing them off from the rest of society you're arguing i am arguing i believe there's an romack i think one of the factors that shows us is rationality if the reason is as the court has said make no sense they're so disconnected that that's evidence of rationale and let me go more into an abyss and first of all i want to be clear about this because i think there's been some misconception is not necessary to demonstrate overt hatred in order to show constitutionally permissible animus i think part of the problem here is that we're animists has created in people's heads there has to be some kind of bigotry or hatred that is not necessary or in windsor the supreme court found such an impermissible animus to be president to be president without finding that either that the citizens of colorado who voted for amendment two in rome or or the members of congress who voted for don't were bigoted indeed the court in windsor may know to attempt to track the vote of everyone who voted for doma in windsor it was enough for the court that one as my co counsel said that doma was called the defense of marriage act what was  defending against two that imposed broad in undifferentiated liabilities on a class of people same thing here and three that one line in the legislative history one line cited moral disapproval of gay people was the symbol being expressed oh there they are on a moral disapproval of gay people now what i'd like to do your honors is turn to the rest should not the mississippi has offered there are really only two one is procreation that we've been talking about into it some combination of caution wait and see federalism want to start with procreation and its reply brief mississippi advances one argument for why it's ok to discriminate against gay people in marriage and i'm going to read directly from their brief that what they say is that mississippi's laws are structured to incentivize responsible procreative behavior by opposite sex couples and in trust not implicated by non procreative same sex relationships now going back to the rational basis test i'm going to start at the bottom other has to be both a constitutionally permissible objective and a connection between that objective and the means that were chosen to achieve it now when it comes to procreation but we can all agree that promoting children the best interest of children in the well for families is a legitimate governmental objective that's in fact a large reason why my clients brought this case in the first place but the problem with the procreative rationale has to do with the absence of any rational connection between that objective and what these laws actually do which is to exclude gay families from marriage just as the same shows of abbey regulation prevented monks from selling wood in coffins while marriage obviously does have something to do with raising children this is essential argument is all that really matters is somehow the act of procreation and its immediate aftermath what the state also cares about however is not only how children come into this world but what happens to them once they get here and this point mississippi actually has the highest percentage of gay families with children in the nation twenty nine percent i refer you to the williams institute but the state has offered not a single reason why those children should be treated worse than the children of straight parents it certainly isn't their fault that their parents happen to be gay and just like children who are adopted there is no possible explanation that passes any test of logic common sense or even simple human decency why the state should not want those children to have the same benefits and opportunities that other children do moreover there is no rational reason to believe that the exclusion of gay couples from marriage somehow incentivizes straight couples to do anything at all in the words of st joseph it is fantasy to assume that any young woman who accidentally gets pregnant will decide to marry the father for child because my clients cannot mississippi's post hoc justification is also nonsensical because it hypothesizes that the only reason why the state issues  marriage to straight couples is to somehow channel procreation and i understand what my brother had to say about fertility but if the real reason or the sole reason for marriage is procreation first of all there's not a word about this in the legislative history for these statutes and there was plenty of time talk at the time about preserving traditional marriage and should do if procreative behavior is the only reason then men and women would not be permitted should marry or for the first time or remarried  connection there's no fit in the heller case the court was talking about the difference between mentally retarded people on the one hand and mentally ill people on the other in the course of that there was a significant enough difference in the treatment which obviously there is of mentally retarded people and mentally ill people to justify the differences in the commitment standers here not one no one is offering any difference between gay couples on the one hand and straight couples on the other that could possibly justify it we're not talking about a distinction commitment procedures we're talking about exclusion that affects every single steer of everyday life that affects his committee said the essential dignity of citizens so i don't think any of the cases cited a rational basis support their view certainly not the ones for economic regulation and certainly not having the low is also nonsensical in the sense that mississippi laws do nothing  encourage that married couples with children actually stay married if mississippi wanted to give tax credits or cash bonuses to married couple with children who stay together until the kids grow up that would be a different case and there are certainly no specific penalties or limits in mississippi in connection with divorce finally this state here is very important is to be takes concedes that is undeniable that's their word that a public couples are just as capable as parents  given that there can be no kind of post hoc rationale that mississippi's marriage ban is ok because it dissuades gay people from having kids and even if that were true and there's absolutely no record in that regard and certainly no evidence in that regard such a rationale would be totally irrational i'm going to turn if i may your honour's to the caution rationales here on the on the procreation a question as i'm sure you know the minnesota supreme court in the baker case discussed that and said on the last that it didn't lead to any kind of violation of the constitution the fact that the procreation in the closet for the most part if they wanted to keep a job or be civil to their neighbors and most gay people lived in the closet we have a very different world today where there are gay people like my clients living openly with their children and given that situation the reality of everyday life that just just as homes talked about in his book on the common law that the life of the laws experience the relative factor here is there's no today in today's world no rational reason for treating those couples differently and certainly nothing having to do with procreation stranger question move along is no problem here nothing to see here why do they say that nine hundred seventy two because times combined your honor it nine hundred seventy two the world was it was ok it was criminal to be gay but in most states in this country but the equal protection cla was there and the point was made about procreation and that point was specifically examined by nine justices who saw none of whom saw a substantial federal question regarding the procreation rationale and the fact that it was it was an imperfect finot yes no i believe and i think that as as this monster of supreme court said absolute symmetry is not not only cannot be in an open couple and have children but in most states they can be even open without facing the threat of prison that kind of rationale makes a hell of a lot more sense she's mike local in which and there's a lot more of a connection and there would be in today's world justice kennedy no one could have expressed this better than justice kennedy has he was right when he said the times can blind times have blinded this country about african americans times have blinded this country about women and times have blinded this country about gay people but will it fortunately people have come to realize that their gay neighbors and brothers and family members are no different than anyone else now with this think it isn't in in in windsor and of course i know you're federal government had had have tried to to to define or or constrict i think they were so careful firstly because that was initially based on the case i can say this is counsel in the case we were very careful decided the question before it moreover case what the broader question the piri case in california was argued the day before so they were well aware of that other issue but they and they were also well aware that it wasn't the issue in windsor one of the things that i notice here and first of all correct me if you think i'm wrong but i i find it unusual for the supreme court to put this specific limitation at the end of one of its of its opinions in fairness to you very good but they very rarely do this but i noticed that the statement that the court made was not only that it's holding was confined but this opinion and its holding or confined which which which tell meave the reasoning in perry and they knew that they were going to get this case again they will get this case again we heard a joke from judge him bottom about the fact that they're deciding that very issue perhaps this morning so i think they were escorts should be very careful  epic here i have to say i agree with him completely while the holding of windsor clearly does not apply to the right of couples to marry under state law going the fourteenth amendment the logic of windsor does because the logical woods are as i started out with says that gay people have a diddy that's equal to everyone else and once you accept that gay people have the same kind are equal to everyone else then all these reasons really make no sense that's why you're seeing this huge almost uniformity other than the puerto rico case a judge felt by his decision and judge douglas decision if running an enormous groundswell in the federal courts not because that's a popularity contest but because when you look at the logic and language of windsor it's hard to imagine treating  people so in such a discriminatory manner if you accept the fact that they're the same as it was now the problem with the caution argument is different than the problem with procreation probations i said it's rationale the problem is the fit in cancian the problem is that the rationale itself is illegitimate the argument is essentially talk talk talk a logical in the sense of the objective and the means for achieving it are wanting the same in other words the argument is because the government values caution we should be cautious about allowing gay people to be treated equally in marriage that doesn't really make any sense moreover any such kind of go slow argument also doesn't work because it's kind of factual i thought i thought you had written something to the effect that you understood and appreciated justice again ginsburg statements that the court should sort of maybe wait either for a split in the circuits or should wait to let the matter bound to decide cases alleging discriminatory state law under the fourteenth amendment this court i don't have to tell you has a proud tradition in that regard so i don't think that go slow argument works for this court and i don't even think  there i think as she said at the time she was saying that the supreme court should do what it normally does and wait for them to be a circuit split now the court in the st joseph case made it clear that the law courts don't have to be blind to the context or history of the challenged role and here there is no evidence whatsoever that mississippi was trying to be cautious there were no hearings on the impact of same sex marriage there was no testimony there were no studies  and in fact we know the answer to the question i think posed by my brother from louisiana about the suppose it impact of marriage for gay people gay people have been marrying in massachusetts for ten years and there has been no decrease in the rates of straight people getting married and no increase in divorce i don't know how long it took to respond to ditch sutton's opinion in the sixth circuit i don't know why ten years isn't enough it doesn't seem to me that people have to wait for the rights fifty years or  hundred years it seems like to me that the record missing in massachusetts is pretty strong moreover by enshrining the discrimination here and it constitutional amendment the state of mississippi was being anything  requiring the voters to go through the amendment process again to give gay people their rights that's not going slow that's a hard stop with respect to federalism and i'll touch on this briefly because there's been a lot of discussion about this i don't think the federalism argument works either first of all justice kennedy was very clear to say that he wasn't reaching the federalism issue in doma he said it in his opinion explicitly he  on three more times to say that any kind of state restriction on marriage hester respect the fourteenth amendment he went out of his way to keep repeating that even justice scalia in his dissent states that the majority and justice coming just formally disclaimed reliance upon principles of federalism and if you're not relying on that then you have to go back to general principles of federalism and well let me put it this way the fourteenth amendment came after the tenth federalism while certainly a strong body of law what's one thing that is clear about federalism is that the states still have to respect the fourteenth amendment and again there are legions of cases in the circuit  that say just with respect to the democratic process again the arguments are very similar obviously for the fourteenth amendment the idea is to make sure that citizens who are members of minority groups don't have to wait for some democratic majority to protect their constitutional rights just as jackson said this quite eloquently in the west virginia board of education be barnette case while the state surely has the ability to regulate things like marriage or age of consent or consent when new again the question here is whether the state can exclude for marriage an entire class of citizens citizens whose relationships aren't tied to constitutional protection based solely on who they are and i want to go back if i may to that the rational basis question the other cases often cited in this regard is murder or merge or pronounce it correctly that was a case about whether it's ok to require police officers to retire at fifty one i think rather than fifty four and there's a court held in again a similar issues that we've been talking about that there was a rough correlation in physical fitness between people who are fifty four people fifty one so therefore it was a case that was ok that's not the situation here here we're talking about excluding a complete a complete class of citizens from all the benefits of marriage and it here the analysis that's being made here would be like saying that in that you were going to acquire police officers who are fifty one who are left handed to retire and not people who are right and it's that kind of irrational distinction that kind of disconnect that's at issue here moreover and i don't need to belabor this you can read i'm sure you have read judge intend to pass equal rights for gay people any time soon but we did my recollection of it so what do you do with the fact that windsor justice kennedy referred approvingly to what he called quote the usual tradition of recognizing and accepting state definitions of marriage i think he did say that and i think he was talking about the fact that it's always ok for states to extend rights to people to different classes of people that's what new york did in two thousand and eleven and that's what he was talking about with approval but again he said three times that states still in doing so still have to respect the fourteenth amendment and so the question in this case is whether mississippi's laws are respecting the fourteenth amendment i think it's pretty clear that they do not let me turn to heightened scrutiny briefly first i want to correct something that my brother from louisiana had to say under the heightened scrutiny test you do in terms of looking at whether a group can contribute to society you do not look at whether members of that group contribute to society in connection with the rationales being offered for the statute so you don't say ok rational being offered is ok people don't get pregnant by mistake which is surely true and then how so how it affects their ability to contribute to society and play for what the court says is you have to look at the disability overall what the court said is ability to cope with the functions cope with and function in in the everyday world here there is absolutely no dispute no one has disputed that in connection with gay people's ability to cope with and function in the everyday world gay people are the same of straight people you have colleagues on the federal bench who are gay i don't think any limit to speed their ability to decide cases is just the same as anyone else moreover i would suggest and this is obviously your honour's decision  that this court is not bound by johnson b johnson and not deciding the issue this court has never conducted the valises on of the four part test johnson b johnson is a case about a gay prisoner who allegedly was put in a  section of the prison deliberately by the warden so that he was raped over and over and over again the poor in that case and if those facts were true then that action would not even satisfy rational basis it did not reach  applied the rational basis test they didn't just say assuming rational my supplies or something like that i did it directly applied that i realize when you have on lawyers do this when you have we talked about this the court only decided the doma question and windsor didn't decide the broader question of whether gay people have the right to marry in fifty states the same standard applies that in the heightened scrutiny standard if the court can decide a case on rational without having to go the next step and say that this class of people gets heightened scrutiny your intermediate scrutiny from the not that's nothing to it that's what the court did in johnson that's what the court did in rome or clearly what the  neither you nor the supreme court are bound by any holding that gay people don't get heightened scrutiny dennis jacobs in the second circuit there are many ways to decide this case all of which we win but this jacobs did it wonderful job applying h to baker i agree that the standard you have this exception about subsequent doctrinal developments it clearly doesn't meet overruling if it meant overruling and it wouldn't say subsequent doctrinal developments with respect to gay people for the reasons we've already discussed there has been a sea change and i think the important question about windsor as it relates to baker is that even the dissents which talk about the implications of the windsurfer this greater right to marry in all fifty states even they don't mention big there either justice roberts chief justice roberts nor justice scalia nor judge alito none of them mention baker if they thought it was a serious argument it was a different question entirely the but didn't didn't reach the question that was covered in in in baker which is you know i mean i'm quoting now from supreme court the question is whether  whether state authorization of same sex marriage is constitutionally compelled that's what we're here for today all i would say to that your honor is that most of justice scalia's dissent does talk about that question even when he's talking about the question he's  grounds i think the point to take from that is that that windsor and other cases may show that there's a trajectory that the law is moving in a certain direction but it's not there yet and then direction it's undeniable to use words that i've said before and have quoted back to me it's undeniable that your tree is moving in the direction that like was mentioned earlier we may find more about that trajectory  is criminal twenty gauge and so it's very difficult to think in terms of well it but it's constitutional right to marry it's not fair and the that was a friendly question just say yes yes it's not there yet so when we're talking about things like baker versus nelson when we're talking about the johnson case and the process analysis when you when you look at the law as it is now a new plan the law now whether it rational basis for review which is looking for is there any plausible reason for the law mean that the procreation ratt rationale for the law is the reason that for the marriage laws in the first place it  hasn't gone away the question is is there reason to change because the state is not responding that doesn't negate the procreation rationale it's still there but the question is is it still the best way or it's no longer the only way to address it well no it's not but that doesn't undo it when you when the question is rational basis it's still a rational basis it's just not maybe and particularly in the eyes of some in that policy choice arena is it may not be the best but that doesn't mean that there's not  the the point about the caution arguments and the go slow and and i think counsel said that it's counterfactual and that there's not been any testing done in your honor did observe that there was a legislator a brief that supporting the state's position on this i think that it's important to point out that when you're attacking or when you're condemning that argument and you're  saying that essentially i think the way that it was put was that there should be a vote on constitutional rights as the winds is put most often if you look at the law and you apply the law in the fourteenth amendment  we're talking about a social policy issue not a constitutional right to shoot again and that's what makes it ok and that's what makes it important for the states to be able to decide for themselves on a policy  i'm saying that mississippi were never changes mind or it's not likely to is not a reason to take away the state's ability to decide things a few years ago there was a person who'd amendment that came up that was put on the ballot and everybody thought that it was that that was not going to or that it was going to pass lots of people disagree with the people sued over it and the supreme court