license case the district court below granted summary judgment in favor of the plaintiffs and both of the cases summary judgment should be reversed for three reasons first the court applied an incorrect standard when it applied the rational basis review it was appropriate to apply rational basis review but he applied the wrong test in that standard second the court made an unnecessary a gratuitous finding that homosexuals are entitled to a suspect class a category as a cause as has that class it was not necessary to his decision to make that ruling but he did it nonetheless third the court incorrectly concluded that wins or requires all state to redefine marriage to include same sex marriage the kentucky marriage laws in question are both statutory and constitutional nothing changed when these laws were enacted one point two million voters in kentucky seventy four percent of those voting on the issue voted that kentucky would like a man like a majority of the states continue to follow a traditional marriage model in kentucky marriage has been a custom long before the state began issuing marriage licenses there's always been between a man and a woman so in this way kentucky's laws are very different from what happened and windsor and what happened in romer and what happened in lawrence in windsor section three came in and got it what new york had done in terms of whether the federal government would recognize same sex marriage for those federal benefits that isn't what happened at all in kentucky kentucky law simply kept in place what had always been in place likewise in rome or in rome or the colorado constitution was amended to take away rights and privileges that had been granted to homosexuals that did not happen in kentucky kentucky has never recognized same sex marriage so when the constitution was amended when the state statutes were and acted we did not take away anything that existed previously locke was in lawrence lawrence crowell as behavior that before had not been criminal d so in that regard kentucky's laws are very different from what we see in the precedent that is relied upon by the plaintiffs the district court did not find there to be a fundamental right if you just say about warrant you said it before the start sheets were not did to criminalize that behavior presumably it was not a crime to do it but what what happened in lawrence is they criminalize that behavior in other words they changed what the law was kentucky i guess i guess maybe i'm a little confused by the point you're making but i thought there was something of an analogy between those laws and the situation at least in the sense that those laws have been around for a long time they are no you're out of the point was that kentucky did not take away anything that had been given or take away change anything when we enacted our laws that is it has always been the custom in kentucky that same sex marriage has not been recognized the district court did not find there to be a fundamental right to same sex marriage the district court recognized that the plaintiffs were in fact seeking a new right the district court held that holding that a fundamental right to marry encompasses same sex marriage would be a dramatic step that the supreme court has not indicated a willingness to take he said that windsor could have easily addressed that question but did not so the district court under took in equal protection and now assists and purported to apply a rational basis standard and doing so however the district court adopted a standard that is not a part of the rational basis standard what the district court looked at was whether kentucky could show that by denying same sex marriage it had some impact on the number of marriages that were performed or the number of children who were born and that's the wrong test to look decided by the score in april of this year the court said that the equal protection clause is not a license for the courts to judge the wisdom or fairness or the logic of legislative choices the court siding f c c vs beach communications said that in areas of social and economic policy a statutory classification that does not proceed along so spoke lines or in french on constitutional rights must be upheld against the equal equal protection challenge if there is any conceivable state of facts that would provide a rational basis for the classification that's a very differential standard that detail rented out apply in this case the district court really did an about face when he looked at the issue of whether homosexuals  to a suspect or whether obsessed that class in kentucky in has a bork decision he held that he was limited by the davis decision from addressing that issue he said that it had been resolved within the circuit six or couldn't he was without authority to decide it citing the their ok x five months later when he decided the love case he went ahead and decided without any on bond decision from the six circuit with that in or any intervening supreme court decision within those five months it was a gratuitous decision certainly was not necessary to his decision because he decided it on a rational basis marriages meaning those lawful marriages under review in new york new york decided based upon the discrete decision of the communities as the language that judge kenneth justice kennedy uses that that is the that's what the citizens of those communities decided it was not the it's not the place of the federal government to come in and take those rights of way away players are asking this court to do what the supreme court said that cannot be done in windsor that is the supreme court or the federal government should not interfere with the traditional and historic authority to define marriage a right that is left to the states and i know we would agree that baker b nelson remains controlling and is binding upon this court w summary dismissal and a disposition that was made on the merits we've talked a lot today about the lawrence case and what what meaning that case has in justice o'connor's despite concurrence in that decision she says that texas cannot assert any legitimate state interest here such as preserving the traditional institution of marriage and like the moral disapproval of same sex relations the asserted state interest in this case other reasons exist to promote the institution of marriage beyond mere disapproval of an excluded group so that's it that's a helpful opinion but it's one person and it's a person no longer on the corner it is it is your honor it's still instructive that the that lawrence does not necessarily decide the issue that is before the court today that it is not this doctrinal development that has somehow overruled baker v nelson or compels this court to take the decision away from the voters of the states this court cannot resolve the social the polarizing social policy that's to be made in the same sex marriage debate the court tannin should decide the legal issue of who gets to resolve this debate the people of kentucky what or what or something rational basis applies for a moment what are kentucky's theories as to why there's a rational basis here and tukey has asserted the procreation interest in that skinner says that marriage and procreation are essential to the very survival of the human race and kentucky has asserted that interest in private procreation is enough as an extension of their argument kentucky has said that survival necessary to the survival of the race other supreme court has also said that people have a right not to procreate griswold yes your honor  i'm just pointing that out you have any response to that from a marriage marriage doesn't mean you have to procreate there's a there is a right not to prefer procreate as mary is a right not to procreate your honor the question is when you're looking at a government benefit which marriage is a marriage licenses and you're looking at the rational basis test is the group who gets the benefit and here traditional man woman couples get the benefit does that benefit further the state interest in it does for the state and just can you can you tell me how though i you know we're back to the old what is it about same sex marriage that will stop procreation in the state of kentucky where you are that isn't the standard and that's exactly what judge habermann applied and what judge in e m r said in his dissent and what the supreme court said in johnson b what is the connection if that's not the connection what is the connection what is the connection between between marriages procreation just like may please the court lauralee and in which on behalf of the kentucky's laws place a badge of inferiority on people and families and invades the sphere of individual rights protected by the constitution in rejecting this intrusion judge hey byrne found that the commonwealth's justifications for the marriage ban are not the arguments of serious people indeed it is inconceivable bewildering according to the district court that a single kentucky voter cast his or her ballot in two thousand and four with the expectation that heterosexual couples would in response copulate and produce offspring windsor discusses the burden that this second class status has from the mundane to the profound and i want to start today with talking about this justification that kentucky has asserted the fourth circuit in bostic recently rejected a very similar argument to the one that kentucky puts forth today and it found that the law was so under inclusive because it included so many infertile couples so many women over the age of childbearing years that were still permitted to participate in the marital institution do you respond to the merger case and if we assume rational basis applies for a second  merges got a very serious under gruesomeness problem right you've got these fifty year old police officers that are more fit than forty year olds but they're forced to retire and so isn't that an appropriate analogy to the problem that you can have gay couples who are just as loving and affectionate just as committed just as good as parenting just as good in every way maybe better well there are two distinctions here the first is that as the tenth circuit in kitchen pointed out the mismatch here is not just at the margins of the right i mean we have a huge mismatch between those that are excluded ostensibly because they don't procreate so called naturally and those that are included in the benefit whereas in the case with with age of the police officers you're talking about a gray area at the margins of of the right and furthermore even if we are using rather a lot of fifty year olds that are plenty capable of being great police officers certainly there are but the other distinction between that case is that it did not involve the fundamental right it did not create two classes based upon one  well i mean the merger doesn't help if you're in height review i agree with that that's true right and where we are is that we are certainly at some level of heightened review even if we look at the sort of a more fo s standard that has been applied throughout the these cases involving gay and lesbian rights even if we look there the standard is not one that is so deferential that the court will just allow any ad hoc justification to suffice the court has applied a searching standard when it looks at what the purpose of the of the laws is and in windsor the court looked at as in rome or at the actual purpose of the last and when we come here and i want to just address judge s previous discussion about about animists and the role that animus plays and the court should be clear that animus in a constitutional sense does not mean bigotry or outright prejudice it can mean thought sness insensitivity or a failure to appreciate the full humanity of those who seem different or if we look at some of the other the plaintiffs in these cases are relying on a case about white supremacy that animists in the regular bigoted sense well certainly i think in loving it was but loving also involves many of the same arguments that have been asserted by the states in these cases among them is procreation i mean the state asserted in loving that it had a concern with with what the trial judge called the potential effects of creating a mongrel race that was that was the state inserting itself into some concern about how and whether and who people procreate with and the state here is making a similar justification yeah i don't know i mean it would seems very different to me with you in a constitutional sense or a regular sense doesn't make sense to me as when you're talking about people for better or worse deciding to preserve that institution the way it was for just centuries that's just hard to think of an animist way i  think of people who do that is risk averse bercy m they want their change a little more slowly but the call of the animists just seems really funny to me well you know another way that we can reach animists is like the court did  romer which is if there is no rational basis if there is no nexus between the purpose and the effect you don't leave off you don't either animists if there is no rational basis you win animists is not relevant if you satisfy the normal rational basis testing think certainly certainly we do not need enemies at all in order to reach the conclusions in this case i just want the court to to to be aware that we're not necessarily talking about bigotry or the type of the type of bigotry that necessarily was in play and loving  what we are talking about here is a desire to create two separate classes of marriage within within the state of kentucky two classes of intimate family relationships one that is preferred and the other that is disfavored and that in windsor we speak about the retention of the traditional and say there's an intention to create two classes it doesn't have to be that's a result i suppose more than an intention would you agree i mean you you want to think just to prove if it were the result is preordained by virtue of of the the law but if we're talking about the intimate it doesn't feel like it's an intention we'd be going back to having people of ill will well where you are looking for that what we don't have to look necessarily at the purpose i mean we don't have to go there although i don't think it necessarily has to involve it will we still have the effect of creating two classes and windsor that's what bothered the court and windsor under an equal protection analysis was that you have these families you have families and familiar relations ships that are protected by the constitution among other ways that the right of privacy and the state is coming and declaring one class of those people superior to the other and without there's this line in windsor were justice kennedy says new york without doubt that's the quote have the right to recognize same sex marriages treated equal dignity other marriages doesn't that without doubt language imply the opposite i mean they have the right to recognize that they have the right not to recognize it i don't think that that language necessarily implies that it had the right not to recognize that if she wasn't before the court what justice kennedy affirmed was that really same sex couples are included in and what we were thinking of when we talk about marriage in new york there was there was certainly the right of the state to extend that benefit and that designation to these individuals and i don't think that it can be read into justice kennedy's language there that that the converse was true when we talk about federalism which i know judge sutton has expressed some concerns over it should be pointed out that those those arguments were raised in the fourth circuit and the tenth circuit and t i'm sorry i didn't catch the for aren't we in the sixth cabinet a little more restricted a little more given our precedent saying that sexual orientation is not a suspect classification and not providing review doesn't mean the point i'm making is i'm responding to your reliance on the tenth and fourth circuit cases and i'm just wondering if that's a difference that would distinguish those two cases well in the fourth and tenth circuit the ruling was on on due process grounds they found that there was a fundamental right to qualify gays and lesbians as a quote quads i suspect class i don't think that this court is bound by what happened in equality foundation and its progeny for reasons that have already been discussed primarily that equality foundation was based upon bowers which has been expressly overruled in the subsequent decision scarboro and davis this court did not need to reach whether or not there was a cause i suspect classification involved and it did i think as judge dartrey pointed out earlier sort of take it for granted because it was not necessarily necessary to the conclusion so i don't think that either of those cases prevent this court from for the first time applying the four factors as judge tabor in did below and making a determination as to whether there is some suspect in this that requires heightened scrutiny going back to the federalism argument the states can regulate in a lot of ways and they are limited as has been repeatedly emphasized by the supreme court even as recently as in shooty that once those regulations start to impinge upon that area a fundamental right that we have to the court's role is to take a look and step in and and the purpose of the bill of rights is to protect the minority from the will of the majority in our otherwise democratic society in shooty judge justice kennedy said the individual liberty that is protected by the full extent and meaning of it may yet remain to be discovered in affirmed and i think that this court should read that language in conjunction with windsor as recognizing what the tenth circuit in the fourth circuit has recognized that the the fundamental right to marry has not change what has changed is our understanding of what it means to be gay and lesbian and now we must recognize that that these individuals are entitled to the equal protection of the wall and they are also entitled to exercise their fundamental right in his dissent in windsor justice scalia noted but the implications of windsor are unmistakable beginning with loving and continuing through lawrence and windsor the path to marriage equality has been laid and we now ask this court to walk down it thank you don't agree fully to address the harm issue romer said that even if a law works to disadvantage to the disadvantage of a particular group it will be sustained if it can be said to advance a legitimate government interest kentucky's laws do advance a legitimate pursuant to that historic authority to change the definition of marriage just as new york did in windsor but whether and when to do that should be the right of kentucky hands to decide there for way as at the decisions of the district court which removes that authority from kentucky and he says that he knew i had to keep coming back to this but i'm really trying to get my get something substantive here how does that kentucky law advance a state crist how does it do it what is the what is the mechanism the state interest is in procreation and we believe that couples who are married procreate it's really very basic delp couples who aren't married and in fact procreate to they do they do in there and more and more couples this these days are not getting married and they're procreating they do there's there's no question about that so how does the power of the law and vance procreation we believe that in the finds of marriage that procreation of cars just as it does outside it doesn't mean that doesn't happen outside the law doesn't have to be drawn with mathematical certainties ok so i can't put this down that's what but i think we're getting circular now how does it foster procreation and you're telling me it is it does so because married people procreate that's because that's what you said that couples  sex couples cannot procreate they can perhaps the artificial insemination they can prep so the sarah get but that's not a procreation of that couple married couples can procreate when we do we believe they do procreate and that is the that is