a statute unconstitutional so you're making a constitutional argument here in court for the first time that is true that is true and i i guess that is part of the fail to consider this an important aspect of the case and that is that she was denied the petition was denied her constitutional rights because the court the court refused to rule on the statute and under but understanding the court i understand that the court acted within the within its authority within its jurisdiction because the consider it it just didn't didn't have that authority yes that's what so let's hear your argument ok the constitutional issue every law is based on a reason are legit reasons for the passage one month rule was prevented was picked was passed for that sham marriages so you can have and they have been married nine months and have a child in common or you have to have an accident in order to to supplant the rule we don't have an accident here because statute that's in question here didn't impede either as a right to marry or not marry for the right to procreate or not procreate and therefore those fundamental rights are not impacted this the statu simply addresses the financial consequences of a status of marriage what's wrong with that argument well the stance you when it does not impair it does not prevent marriages like the same sex marriages that were allowed in over felt that's clear it doesn't force someone to procreate or not procreate our position is that it infringes on the right because over fell when you read the basis for over fell it's not based on procreation because in a same sex couple you're not going to have genetic material from both people things have happened since one thousand seventy five but the court there address sensually the same nine month rule with a kind of exception for her children and said even though we have said in various stanley illinois a last slur that there are fundamental rights that are in the picture here having to do with marriage and family matters and when the question is congressional definition of the circumstances in which government money would be paid out we're not going to do a kind of strict scrutiny fundamental rights analysis and then it proceeded to this is a kind of insurance scheme an insurance uses imprecise rules so why is this different from that is the standard review different so we no longer get to do kind of rational basis review or what standard review review is saying it is a it's a deferential standard of review it's a lenient standard review and it is the rational basis test quite honestly we would not have brought this issue with out that decision and over fell versus hand it and the reason for that is that chase recognize that it's not just procreation that it is about it's also about a safety net it's about security and that's part of the social order that is that is the underlying basis for bringing this case as to the rational basis t hundred seventy four i believe it was a priest april ninth of one nine hundred seventy four it was two years and then it went to one year after for ninth seventy four and then i think it was eighty five five seventy eighty five it went to nine months there is nothing that is arbitrary well arbitrary in the sense in which picking any single number is going to be arbitrary but not arbitrary in the sense that it is our birch arbitrary to pick a given number and the supreme court expressly talked about that in the south in it and in selfie and said they're going to be sham marriages that are longer than nine months they're going to be perfectly non sham marriages that are less than nine months but the alternative to a kind of nine months rule is that this is ministre to flee costly inquiry into the bona fides of particular marriages and in look at the language that was used in over it talks about the safety net and it talks about the financial talks about financial success security and the benefits of marriage in regard to financial security and that people marry for reasons other than to procreate they marry they marry to protect themselves they marry to get tax benefits there are myriad of benefits at the state offers and the federal government offers and a lot of those are based on marriage and then i think is the differentiation has a a different day because of the decision and overfill that that is basically our position and because of that everything needs to be reexamined because there is no i understand that the that the legislative the legislators can pick a number and can pick a number out of the stock and they can they can and i understand that but over fell specifically looks at finances and safety and and creating a financial safety net for someone that another person loves and wants to be with and that's it and that wait this does impair the marriage the last the last thing todd me barry wanted to do was diet forty one last thing in the world he married the love of his life and he married her he could have married her sooner he married her weight when his t results came back good so he wouldn't burden her he wanted to provide for her it was important for him as her husband to provide for her their marriage wasn't a sham i understand i understand what the court is saying but their me their marriage wasn't  i'm doing is describing was what weinberg and southey explained at considerable length and in length he had a basis for saying that's no longer the governing rule it's a little hard to see what the differences between that case and this is the only basis i have is the decision over film because i think i think a new leaf has turned i think we're going to start seeing a lot of litigation over matters like that because of that decision because marriage is more than again marriage is more than just the procreation it can i ask you a question about your about the discovery yes you and i forgive me if you if the if i should remember this or that but when when you presented to think that o p m had in fact and so are was it a kind of an open ended request we would like to know we we don't have a reason to think you have but we would like to know what we had we had no inside information that they had such information but we we the individual who did the hearing believe that that it had been done but it was it wasn't it was he had heard that it had been done in the past but it wasn't something that we could verify when you  did not have any any any evidence that your had been sort of discriminatory application of this that we were trying to get evidence but we did not have any evidence to show that we could get that considered and rejected similar challenges now mr becker challenges the duration acquirement arguing that it violates the due process of the fifth amendment however under salhani the court was clear that there is no heightened scrutiny that appl to that the legislator or congress's decision of whether or not to subsidize the exercise of a fundamental right and over felt is not change that result it does not involve federal subsidies instead it questions whether or choose to marry it's separate and distinct from whether or not congress would have a legitimate basis or a legitimate interest in trying to ferret out sham marriages for purposes of who should be able to receive federal  not and the supreme court over time has made that clear in other cases for example the reagan case as well noting that they're not required to subsidize the exercise of a fundamental right to that and that requirement is not subject to strict simply states in that context that if a individual is denied a benefit then it is a due process and alice's however without there being an infringement on a fundamental right or without it involving a  said we're going to stick with a rational basis if even though it was money right it doesn't benefit if we don't see any real what is a reasonable likelihood of a still direct and s l impairment of the underlying fundamental right there kind of other rights how do we determine in this case whether the denial of the survivor benefits has a direct and simple course of stand show on the choice to marry choice whether to have children certainly your honor and i think the link cases vary somewhat to the supply he decision as well where they're the wisconsin legislator prohibited individuals who had not paid child support to get married without getting court approval first and so i think the question could be a potential infringement on the right however here that the church and others that are similarly situated are free to choose whether or not they want to get married they are free to choose whether they want to procreate the only question is whether on the back and the federal government is going to be subsidizing their ability to exercise that right so there would need to be some sort of infringement on the actual underlying right which has not occurred here briefly as well as her challenges the duration requirement of the exception for children and the legislator hasn't provided any explanation for why there is that exception however in sofie the supreme court noted that often that there could be a conceivable basis for having that exception and a rational basis analysis that exception really doesn't apply here there are no children that's correct the petitioner argues that the it doesn't apply but she does argue that there are distinctions that are being made between couples that choose to or choose to have children and don't and that creates a due process issue but i would agree that it's not relevant for the courts now if o p m had been in gauged and a practice of regarding waiving this rule would that be a basis for a claim here respectfully it would not your honor because ultimately the orders required to determine whether or not terms of the jurisdiction of the boarding the board could consider whether or not the application of a statute is done in a in a constitutional manner but the board itself still is bound by what the statute says and ensuring that it's being applied  financial security safety net for people and that's what happened here as to the the issue of children and common there is a right not to procreate bottom line as he thought he was going to live if s of the discovery issue they are violating their responsibility to apply the statute an even handed manner and that is something that we should be able to challenge we if we had access to that information and that would be presented and then we would be arguing probably argue against for this court because the administrative court would follow the statute as its responsibility and we would again be challenging it before this court thank you thank you very much is submitted