the court eric murphy states officer of ohio or the interim director of the highway department department of health based to ohio cases involve state recognition and out of state same sex marriage and in that respect there are distinct from the michigan case that was just argued which involved in state licensing or performance of same sex marriages but the fundamental question in all these cases is the same and that fundamental question is not whether ohio should recognize same sex marriage but who should make that important decision a public policy on behalf of the state and in rejecting the just ohio voters decision on this public policy issue the district court ignored its place within the judicial hierarchy and our constitutional democracy and i'd like to begin with with the baker point because i think it's every bit as significant on this recognition case as it is on the michigan licensing case  recognize has to be consistent with baker which is with a result that does not lead to same same sex marriage and the plaintiffs in this case have not proffered in really any grounds on which to distinguish the right to recognition from the right to licensing and because of that i think that's essentially they make the same approach with respect to baker as as the other as the other cases have done which is to say that doctrine of developments have have superseded  baker and now with respect i think i heard a question that's not quite true with respect recognition part of the case because judge black point out that there's this wrinkle that ohio doesn't seem to quickly enforce this prohibition on out of state marriages that are consistent with ohio requirements for marriage licenses in the equal protection context to the skip the disick gest that this refusal to recognize out of state same sex marriages was on precedent which i don't think is correct i think the way that the courts have gone about it is to distinguish between what they call void and voidable marriages and there was a void marriages are just those marriages a violate what would be deemed a common not the same sex marriage versus opposite sex opposite sex marriage and so i think that this is so that's one example for why i think baker is all about controlling because he may have to make these distinctions another distinction they try to make is to say that there's a substantive due process right not to marry but marriage recognition and i think that i don't even think you need to get to the glucksberg analysis because under the supreme court cases and this court's cases when you have a specific provision directly on point a specific textual source of protection with elsewhere within the constitution and you don't even get to a substantive due process analysis and i itself that that would violate the full faith and credit clause instead they say there's some type of substantive due process right to marriage recognition but the analogy we make in the briefs is to the courts brandenburg case where it refused to engage in any type of so i think that based on this court's own precedents and song my interpretation of that phrase is ok well if you if you have a case that has all but over ruled a summary dismissal but they just didn't know of the summary dismissal because it's so they don't this court has already held and the song case that sided with our brief in our brief where the court and song centrally said that these summary dismissal zz and regular opinions should have the same presidential value and i think that mean that my have some kind of binding effect on the core from which it came but not against the world i don't think that's true i think it has i think that at least the distinction that right miller draws in the distinction that the supreme court's cases of drawn has been binding the fact that it has on the lower courts versus the binding effect that it has on the supreme court and i thought that the supreme court is quite clearly say we can see it said that it has less binding effect in the supreme court but with respect to the and whether his standing is that's i mean just be a little confused here but you know you have to address standing because it's jurisdictional if without that party would have a case but i also thought that if you have other parties that clearly do have standing one doesn't have to address it do we have to address i do think you do because i think that the rule that you're talking about only applies when they're seeking the same relief and i thought his his relief is more involving mr grant is just as applied to one death certificate but without mr grund you can't attack more broadly the injection as you know the engine of the injunction would essentially be more forward looking versus that it got us lost the other side that questions well ok doctrine that there has to be a close relationship and and koskie the u s supreme court's decision in quasi made clear that the lawyers future prospective relationships with clients was insufficient to establish the necessary closeness and i think that that is on off wars i think with with this case i would i think i would hope that the lawyers relationship with the client is that those were those were people that that  actually this is primarily dealing with the class that sit issue and to burial funerals and burial i would think you could make the same distinction i believe he is talking about future clients he hasn't identified any other specific clients other than i believe also it is the future of client world that the response to versus boren which was the case dealing with beer vendors but itself distinguished craig as being about where the transaction between the two parties is and kentucky cases then it starts to look in significance to hear him saying in other words either by upholding or invalidating then what do we care about mr grant in ohio i mean you'd have a rule you'd have a decision rule decision it would be binding in the six surface and barring a meaningful distinction between the different state recognition laws would make a difference would it as a matter so there's a difference between as a matter of precedent and as a matter just facial relief and i would complete see that the state would either well it would depend on what the opinion would say but it is either i have to attempt to distinguish that opinion or b be bound by it but i started i don't know that that i think that standing still has to be within  cases so that's i think that's the easy easiest way out with respect to third party standing and then the other factor for third party standing not only closeness is hindrance and i mean these these suits are all over the country right now and court of appeals decision that they're measuring a trajectory and you know it does seem fair to say that the supreme court opinion trajectory favors the plaintiffs even if it's also equally fair to say i think this rumor and wins are at least are just garden variety applications of the the animists case and i think judges judge holmes's concurrence in the bishop case was a pretty good analysis as to why  elimination of one class of people's rights and that just that just cannot that just cannot explain the traditional definition of marriage which which has existed since the founding of the state in and can't really explain either i don't think the two thousand and four minutes because i think that two thousand and four minutes for were explained prime primarily by democracy and  massachusetts court or by the ohio supreme court and it's rational it's a rational response to that concern to pass a constitutional amendment retaining the traditional definition of marriage so i think judge the judicial eyebrows so to speak to apply this type of animist doctrine and i just don't think that that concern is present with respect to the laws that have have have existed there's nothing unusual about following the usual course and i would say  so so i think those those cases are distinguishable on that ground in the weeds with respect to rational basis we talked about democracy i think a distinct rational rational basis in the recognition cases is also just uniformity and having just one one position on this fundamental issue so such that the laws cannot be easily evaded and so that uniformity rationale also explains what w your brother what implementation problems arise if the plaintiffs win i certainly think that it would require i don't know if it's an intimate implementation problem but i think that would certainly require a legislative response for instance birth certificates have father and mother i don't i mean maybe it should be be changed to just parent one and parent two that's just i mean this is just a pragmatic response but i would imagine you think about the pragmatic question i would imagine those things would revised code to determine what needs to be updated in light of whatever constitutional developments arise stack other statutes about divorce adultery all that all i'm hearing you say is that yeah you just have to  ones already mentioned by michigan i think the two the two concrete ones with respect to out of state recognition democracy is number one and concerns about massachusetts controlling ohioans on this issue uniformity i just think proceeding with caution it's strikes me as a rational response to a new concept except that which is a kind of a variation on the pacing point maybe that's a rational basis i'm not sure village let's accept for the sake of argument that it is it surely can't last forever so what will how does how does according to them at that i mean you say now they say they get the benefit of the doubt is that in ten years so that's the way to handle the pacing point and show that it doesn't go forever if you hit you hit some trigger some number of states that recognize same sex marriage at that point it's appropriate not to act and i certainly i certainly think that's that's one response and i think the basic point is that it's just too new today and so maybe i mean the law is always about drawing lines and one point maybe it becomes an irrational idea to proceed with caution but i don't think we're there yet i don't know how many states there are in the tenth circuit but they came in with utah and they've added oklahoma i don't know how many more states there are in there but if the three or four you've now got twenty five states by your reckoning which is a majority and we throw in four more and then you've got almost thirty i'm just i mean hypothetically  that that affected virginia would wouldn't your guess be that that's now going to apply in north carolina south carolina and who else is in there west virginia yeah that's true but i think there's a difference between saying whether it's irrational but i don't i don't i don't think you can pick the states where the courts have gotten involved rather than through democratic you just told me i could count this thing well and i'm telling you i'm counting but i think that the way the way t count the states i think she's through the states that have through dimmock the democratic process processes have adopted that type of change and i think that if you if you take that number i think that's what we've now got twenty some states see no reason to fuss about this in the legislature because the courts have already decided to question now that of course assumes that the supreme court is not going to knock it sideways but you know they they can count two and it is my feeling that they probably do look at the polls and maybe the counting point that somewhere between the two of you is you don't necessarily count all the states within a circuit that's ruled one way particular if there's going to be an appeal because that doesn't tell you the bottom line but you do count the states covered by those circuits where the state attorney general or state governors decided not to appeal because in those states it's over as best i can tell so maybe that's the relevant number and that's the number around twenty twenty one i  think i still think it's still two i mean the fact of the matter is a majority of the states have retained the traditional definition of marriage and i think that the cautious approach makes sense i think justice alito is the sense goes through this quite well in footnote five he talks about how  changes to the way marriages changes to changes in their age have taken decades to determine whether they the effects of the change and i think it's just too early to tell us when the first state to recognize marriage  said i think that the people he makes the distinction that he doesn't he doesn't think that the federal government's decision with respect to section three was based on animist so i thought i think he would have distinguished rumor on that ground but i do think that this is a different question i think the main focus on windsor was the unusual nature of the federal intrusion into marriage and that's simply not the case with respect to the state of ohio retain its traditional definition of mores we're not i don't think speaking so much about the more local ethics that people lack focus to the general assembly in ohio precinct and for that whatever legislative body who are whom they have ask what their views are and and use them demick credit process to try to move things along locally and then state why i don't i don't think we 're talking about that so much homework counting states that or the or the impediments to getting change the pacing yeah i just think that it's a cautious approach to a fundamental change and and marriage when it's only been ten years this strikes me as completely rational and i think any voter in ohio might have had that their rationale in two thousand and four when they voted for this and all i see i have to know is what we're going to say a form of heightened scrutiny applied i mean you have to responses change uncertainty on certain facts does not inevitably mean that the state who if it is heightened scrutiny loses i would point taken dollars versus carhart there is uncertain facts there under what seemingly is a higher standard the undue burden undertaken here but i also point to i think that i think that town of greece case that was just decided the last term where the court expressly indicated that the test that you adopt also has to be consistent with the history and practices of the people and so i think that if if you think that heightened scrutiny versus rational basis review actually makes the difference i think creetown of grease is a good indication that rational basis or review is the appropriate test precisely because the traditional definition of marriage has been with this country since since its founding so with with with the last minute just briefly talk about the full faith and credit clause claim which is the last claim in the in the henry case and i has a claim that you should look to the state of judgment preclusion law rather than the law of the state where the suit is filed so it's essentially a choice of law rule in the same way that the supremacy clause of the choice of love rule and if there's no questions on that right are you familiar not sure if i told you that it took seventy eight years of crossing the desert back and forth back and forth trying achieve it through the democratic process would you be surprised but not with respect to the united states constitution because the united states constitution sets a very harsh high bar for constitutional amendment no no no no i'm talking about the going into every state in the country every city every school board election for seventy eight years and trying to to get enough going to convince the legislatures to adopt her to extend a vote to women seventy eight years of it and would you be surprised to find out it didn't work and it took an amendment to the constitution to finally achieve that after legislature by legislature municipal government by a new national government as far as i know and it just doesn't always work but that's the it doesn't always work at seventy eight years to get women just the right to go to the polls and vote  that you don't have to respond it's ok i just thought you'd like to know that in case you're ever on jeopardy here you can respond now you have five minutes rebuttal to think about that three babies have been born to the henry plaintiffs in the last two months one adoption has been finalized a few months earlier for another point of couple and henry all for same sex couples all were married in one of those twenty to twenty one states where the issues done their marriage for same sex couples is available so ohio refuses to recognize these marriages and in so doing also refuses to these couples and to their children recognition of parent age so instead ohio issues a birth certificate that names only one member of each couple as the parent and denies recognition as a parent to the other that's a real serious harm ohio also says to the surviving spouses in a burger photo you must accept a death certificate for your loved one that's wrong one that does not say you were married even though you are and one that leaves blank the spot where your name should go as a surviving spouts so ohio and this is such a big difference between the ohio and michigan cases i totally support and agree with the arguments in terms of the fundamental right to marry but at this point we're just doing a recognition case and the ohio marriage recognition bad thing can i just ask you a framing question which sure fearful is a little simplistic but i'd love to hear your reaction to it because we do have all these cases and we have all these issues my rather simplistic way of looking at it is isn't the first question whether a state can decide for its own purposes its own citizens whether to recognize same sex marriage if it decides it's not going to do that for now and if the u s constitution here's the key if the u s constitution permits that choice i guess it seems really odd to me that they can be told ok even though you can make that choice for your own citizen if some of comes from another state that public policy choice doesn't bind you so i guess i just think of the case in face first if you win that issue if the state of ohio under the fourteenth amendment must recognize same sex marriages within its state then of course it follows you when the recognition so ok let's look at our decision grid all right and because you're suggesting that the question of states defining marriages is a threshold question for all of this it's one way to think about it and i'm just maybe it's too simplistic well it's one way to do it but when we look at the question of marriage recognition you've got your question over here what is the state's definition of how what kind of access will they provide to marriage and that can be a fundamental right to marriage under turner under loving you know saying that you know that it's a bilateral socit sion it's a fundamental right there for same sex couples get to marry a number of states have already done other courts have already ruled that way if that's the situation our case is simple it's a corollary of the fundamental right to marry then you have a also under due process the notion that once you're married that attaches all kinds of vested rights you have important parenting rights you have important child rearing rights that have been recognized by the supreme court and for history that's been transportable across state lines so that's a separate argument to do the due process clause that there is a fundamental right to marriage recognition that it's transportable and then you have another line which is windsor which is equal protection and that says if you've got a really unusual situation like section three  where for history the federal government's always accepted the state that say this is a marriage in the federal government says ok we'll accept it as a marriage then suddenly because sex couples are getting married the federal government says no we're going to now going to get into the business of defining marriage that's an unusual discrimination that requires a special consideration and when the court applied that test not putting a duck trying to label on it but certainly working with an equal protection it said that that type of discrimination is a violation of equal protection that it is the principle purpose to impose inequality so it wasn't about whether a certain state must or must not define marriage it was about if you've got a pattern in practice over time that you're only changing because of the type of people that now participate in marriage or the god that or the government that's doing it well justice kennedy in his decision clearly said that he was not doing this on a federalism basis that he was  majority ruling should be looked at as an equal protection clause this case directly fits windsor was the first case filed after windsor we looked at the record in windsor we went out and hired all the same experts you have the same record as you had in windsor and you have the same problem because ohio did have a long tradition and it still does of being on the on the extreme side of the state of celebration rule so if you have always accepted first cousin marriages underage marriages and common law marriages that you can't do in ohio and now suddenly because of the people in these twenty states that are getting the state doesn't have to recognize every marriage in every other state but pretty clear if you go to our brief and you look at all the sources that we cite including sources that go way back there we can't find another case where ohio is refusing to recognize marriages from other states that you know otherwise couldn't be practiced in ohio so so we really have three states and three cases well there's not oh there's not a lot of case law but they couldn't find any either the only case they said it was an in state case so so we have a rule of law and it is it is one that ohio has followed and then you have the added dimensions because when you look at windsor and  well what was that special consideration that they entered into and how does that apply to ohio you can look to some other rational basis cases because what we're really learning is that rational basis doesn't have just one flavor i mean if you've got a group that's targeted because of a history of discrimination as in for interior if you've got important personal interests at stake as in palmore or in  where you've got personal autonomy issues being triggered if you've got a departure from an established practice past practice like romer then those are all factors that if we look at the case law seem to suggest that we're going to look at things a little more closely i think ply here so you can't say this unprecedented right because this is the definition that you know exists no i'm not talking about definition i'm on my third problem it is unprecedented that ohio would unilaterally say to a whole group of people who are married in another state we're not going to accept you as people that we will recognize as married here so it's on press and these ohio supreme court itself and it's just the key decision you're relying on says no this doesn't mean you have to recognize every marriage even if it's against the state's public policy because ohio because that was theoretical they were leaving a back door but when we look at the real situation here this back door involves people who have a history of discrimination people and an issue that's very personal and carries with it very important rights and it is a departure from i agree there's a history of discrimination and i don't think there's any doubt about that i guess what i'm is not so obvious to me is a history of discrimination when it comes to access to marriage that seems to me a much more recent phenomenon and just a reflection of the current times and a new sensitivity on both sides of the debate well what we really find is that if you if you look at how whe majority analyze this they looked at the history of doma is an act meant and its own text in order to determine whether this departure is significant enough to trigger a violation of the core protection clause and they said it was that there was equal dignity being denied to same sex marriages and that it was the essence of the statute and then humiliated tens of thousands of children it's said in the federal context that there was no legitimate purpose served in such a statute that all applies here there's no legitimate purpose for ohio to say that in one setting the federal government is doing something it's never done before and worst of all doing it after a state has already decided to recognize same sex marriage and in today's cases it's a situation where the state each state has always been in charge of this issue that's it just seems like well pretty serious difference well they've been in charge of the issue of definition but when it comes to place of celebration rule this is a rule that that they have followed and as i say it was a theoretical discussion as to what they wouldn't follow the deal that these couples made when they got married in new york california massachusetts maryland and delaware was that they would have a marriage that they could carry from pennsylvania which now we add into the logic of both that they were well aware that they were moving to a state where but i think that right now your honor we're in a situation where the democratic process has evolved ok and that's what i think that it goes to the to the thinking that you propose right but there's there's not a like a contributory negligence defense to a constitutional right i mean either your marriage is transportable or it's not they got married because they were in love they didn't get married trying to think of well you know work and i go here and work and i go there they do expect that their marriage will be transportable that's a reasonable expectation in fact forty four percent of the people in this country now live in a state where marriage is same sex marriage is available where the freedom to marry has been recognized and that includes those twenty to twenty one states where the deals done where there's no more appeals pending and both ways and she would agree no because we're now at the point where if and this is why the recognition case is so significant because at some point when the democratic process is played out you in you are at this scale of the that we have here nearly half the country is in a situation where they're being told you can't carry your marriage across a state line that's the point states and the courts step in and on the other hand excuse suggests the democratic process is working and indeed working effectively and very quickly from your client's perspective so that's what i mean when i say it's been twenty seven years since bauer's so it's been a long long process of development but you know judge what i'm suggesting is that the ultimate role of the federal court is to keep states from denying the liberty  to certain citizens and here when you've got citizens who have a liberty interest their marriage already exists their marriages is done and they've now got children and those children deserve to have two parents and the state is now saying because of our commitment to democracy we're just going to say no to you and we're just going to wait for you to come up with seven million dollars and reverse our constitutional amendment and you know we'll see you in a few years when you can pull off that kind of fund raising and that kind of democratic action the reality is that these rights are are very profound and we know from supreme court case law that a marriage is a very significant thing it's solemn it's precious it's it's got all these attributes that allow you to have the relationship with your children or with your spouse and this can't be just subject to vote i understand that in its early stages when a state is trying to figure out whether recognition just be subject to vote but i'm just curious why you feel sure about the better path in other words let's say the gay community gets to pick the path you can get your supreme court decision in june of next year or you can have five years to change hearts and minds through democracy in the remaining twenty nine states it's just not obvious to me what's the best path well i'm trying to suggest a constitutional path both under due process and the vested rights that come with the marriage and i get it the assumption of the question was that you can have either one that's the assumption the question is just not obvious to me why the supreme court ruling by five justices in june of two thousand and fifteen is the better path for the community not necessarily clients the community at large changing hearts and minds happens to democracy much more effectively that happens the court decisions i understand judge but i represent four couples their kids deserve two parents they deserve them today and that's and they are entitled to those based on these notions of due process and equal protection and it's especially when you look at the movement that occurred this is similar to the loving situation which by the way was a recognition case i  mean that couple moved to d c got married then came back to virginia and were prosecuted because virginia wouldn't recognize the d c marriage at the time of the decision in one thousand nine hundred sixty seven there were fifteen gates that had repealed the ban on interracial marriage there was momentum going in their favor but the supreme court still struck down their prosecution there were still sixteen states that prohibited inter marriage that doesn't seem very helpful to your non recognition point because that's not the analysis that the supreme court follows in loving the analysis the supreme court follows in loving is not the fact that for ginia wouldn't recognize a d c marriage was the fact that for jim you wouldn't recognize for in state or out of state couples in a racial marriage is so that that actual path suggests because back to the first question i asked which is we really should start this inquiry from the perspective of whether the state in the first instance has authority to deny same sex couples a marriage license you know even in windsor and by the way that those facts came from footnote five in loving so they did consider relevant but even in windsor the supreme court makes a point to say that it assumes state recognition state recognition of marriage is consistent within the state they say that twice in the majority opinion what we're developing here is a second tier of marriages in ohio opposite sex couples that come in with various legal hick ups in their marriages from other states that ohio says oh never mind and then same sex couples that ohio says no you can't have your marriage recognized and this does get us to the other aspect of equal protection and why special consideration should should trigger an equal protection finding and a violation in this case and that is the notion of animists we've got in this record a remarkable collection of all the facts that went into the passage of the two thousand four supreme court constitutional amendment one of them just to name one in the becker declaration it's exhibit q is the state description of the measure and this is published by secretary of state blackwell it's still on the website and they have the pros and they have the cons and under the pros it says this this measure will prevent the state from spending any money and allowing homosexuals which they describe as being in deviant relationships so there's a real prejudice there in this notion that the measure gave effect to the private prejudice against gays is one that bears some weight and i'd recommend to you that the the amica spree from professor poem vote of all the amica sprees there is one and a lot of sympathy for judge holmes i think it is on this point i mean the whole idea is to eliminate otherness it's not to create new others  they wouldn't accede to a customer's demand then i don't have you no in a title seven case you don't have to it isn't a defense to honor a customer prejudices in this type of situation under power under palmore you had a supreme court case where a custody decision was made and the child was was removed from of from a situation because the judge thought oh a living in an interracial family that that's creates too much tension the judge didn't have any prejudice but the judge was exceeding to the prejudice of others and what the supreme court said was don't let us pass laws that actually implement private prejudice of others so it isn't a finding that somebody is a bigot it's a finding that the court that or that obama could get passed i was in a complement to the people who passed this that they had animists it's this isn't about being a compliment or not it's about all the factors we had to look at in order to determine whether this measure targeting this narrow group of people the things people targeted in were in windsor is constitutional history of discrimination this history of targeting even in the measures description by the secretary of state the text itself by the way  think about the text the constitutional amendment in our house is not only that we are going to define marriage to include other than a man and a woman it says no civil union nothing that approximates marriage it's saying get away from us as far as you can and those are the types of things that the supreme court looks at when it's even even if we're doing rational basis i won't use labels i'm just saying these are the factors they all line up here to say this deserves the same special consideration that the court gave the federal measure in windsor and when you do that especially in light of the role of the federal courts to prevent states from denying liberty to people to be the backstop it's appropriate to act now was it appropriate before i don't know we weren't in this case before i say that now with half the country practically in a situation where they're going to want to bring their marriages across state lines and with those children in the balance yes now is the time to act and it's appropriate to act i would say also that we ought to think about the harm that that we're dealing with in a situation like this the couples that are plaintiffs in this case three of them were impregnated by artificial insemination so there's no need to go to state court and deal with fathers that are claiming rights and under ohio law if you are married and you use the process of artificial insemination the father is deemed the parent of the birth of the child so that same rule should apply here and by the way the implementation question is easily answered just do a definition for all your laws get away from husband and wife get away from father and mother and go gender neutral so i don't think that a serious impediment to implementing marriage recognition as it would be here  and the difference is huge in this case you've got the non birth mothers of these three babies saying i am a parent sue me if my kid doesn't get my support call me if my kid doesn't show up for school prosecute me if there's neglect of my kid and ohio saying no we don't want that we'll let this kid only have one parent but if you're an opposite sex kid then then you will have two parents that's that's a super harm to these children and that's part of why the matter is urgent because as we get more and more couples with children as we have in this case presenting themselves in ohio we can't wait on the democratic process and suffer the harm at this level that they that their suffering both of those names need to be on the birth certificate and that's very practical windsor talked eleven separate times about the dignity that was owed to same sex couples and in that opinion it's said repeatedly over and over targeting these couples for this sort of second tier status humiliating these children who are in these relationships causes the very purpose and and and the actual court  statute is to treat them on equally and that's exactly what what's happened in ohio so we have both the same lack of dignity that was recognized in windsor and we have these very practical problems of children getting only half the parents and they should get both parents the district court was correct when it said that the birth certificate is the basic currency by which parents can freely exercise those protected parental rights on the parents side and responsibilities it's also the only common governmentally conferred uniformly recognized readily accepted record that establishes identity parentage and citizenship and it's required in a an array of legal contexts so in this case what you see in ohio is harms that come from marriage recognition from credo as in the cases there they're denied tax benefits other benefits and these are benefits that are take it for granted by different sex couples i mean i've been married to the same woman for forty two years three great kids the laws rigged in my favor because i get tax benefits i get other benefits and if and that's in that's fair in a sense to rig it in favor of marriage because we pair taxes we buy our houses we buy stuff at the mall we take care of our kids we put less demands on the government and same sex couples deserve a piece of that there's absolutely no reason to treat them unfairly with respect to this balance that the government has drawn with respect to favoring marriage and it's important and the death certificate is the same thing it's important that it be accurate it's the last record of a person's life on earth in this country and to be wrong i mean talk about a dignity violation i mean that is absolutely huge and i think it's bears it's sobering really so each of the four children in the henry case have two parents not one and affirming the district court will cause ohio to recognize these families and the marriages that anchor them affirming the district court will also cause the death certificate of william ives and john arthur to reflect their marriages and allow those most likely explains how this case will come out and if michigan comes out upholding the traditional definition of marriage i don't i haven't heard any rational basis for having an exception for for out of state recognition that the first point that was made was some substantive due process right that was deeply rooted of recognizing these out of state marriages but of course that doesn't take on the notion that you don't create substantive due process rights when there's a textural source of commitment in the full faith and credit clause and it nor is the equally long standing public policy but couldn't say if we wanted to that ohio is perfectly furry to refuse to used issue to be used to recognize people who get into common law marriages within the state but then apparently allow somebody whose marriage is a common law marriage is considered valid in another state to come in and recognize that marriage so just a it's a notion notion of what a house public policy is i think there's no question that ohio would recognize some marriages that would not be lawful in ohio but i think ohio has always retracted retain came the exception for those marriages that violate public policy and this public policy exception long predates this debate so i don't think there's any way you can say that the exception rationale was the entire rationale for why there was an animist there and that federalism rationale is entirely gone here the federal government had engaged in an unusual intrusion and it was that unusual law that triggered the anim scrutiny under the equal protection clause and you just can't say that for these types of laws for the reasons i just suggested that this public policy exception has been around in ohio for a long time and it certainly predates the the present controversy so the public policy most of that time that you're talking about well that just goes to show that the there's no deeply rooted right with respect out of state recognition of same sex marriage and then the third point i'd like to just point out to some of the record materials and equality foundation this court made quite clear that legislative motivations especially in the referenda context are just impossible to determine be precisely because it's a referendum so it depends on the intent of every all the three million voters who actually voted for this constitutional amendment and that's an analysis that's completely that literally impossible you can't gauge into the minds of everybody who voted yes for proposition one and i think that the that is distinguishable from rumor and windsor precisely because the court in those cases didn't engage in the legislative intent in the metaphysical sense that looked at the laws on their face and said the laws on their face are unusual and that's just not not the case here so if there's no further questions i'll respectfully ask the court to reverse that this record in these two cases mr murphy can we go back to the nineteenth century history that we were talking about  before it occurred to me after you sat down that you thought i was talking about these the suffragists crisscrossing the country trying together an amendment to the united states constitution that's not at all what they did they knew that was virtually impossible they were going to the local people trying to get the right to vote on the school boards they were going to each state legislature saying please enfranchise women so that we can vote on the state ballots in this state and they did it state by state by state and when it came to the end they did get the right to vote finally in a few of those states there was still the question of whether they could