Vol 98368

Case 2:13-cv-05090-MLCF-ALC Document 129 Filed 08/05/14 Page 1 of 72
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
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JONATHAN P. ROBICHEAUX, et al.
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versus
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JAMES D. CALDWELL, et al.
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Docket 13 CV 5090
c/w 14 CV 0097
14 CV 0327
Section F
June 25, 2014
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TRANSCRIPT OF ORAL ARGUMENT BEFORE

THE HONORABLE MARTIN L.C. FELDMAN
UNITED STATES DISTRICT JUDGE
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Appearances:
For the Plaintiffs:
Stone Pigman Walther Wittmann, LLC

BY: DALTON COURSON, ESQ.
BROOKE C. TIGCHELAAR, ESQ.
JOHN M. LANDIS, ESQ.
LESLI D. HARRIS, ESQ.
MAURINE WALL, ESQ.
546 Carondelet Street
New Orleans, Louisiana 70130
For the Plaintiffs:
Law Office of Richard Perque, LLC

BY: RICHARD G. PERQUE, ESQ.
700 Camp Street
For the Plaintiffs:
SCOTT J. SPIVEY, ESQ.

A Professional Law Corporation
815 Dauphine Street, Suite D
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14-31037.2018
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Appearances:
For the Defendants:
Duncan, PLLC
BY: KYLE DUNCAN, ESQ.
1629 K Street NW, Suite 300
Washington, D.C. 20006
For the Defendants:
Law Offices of Mike Johnson, LLC

BY: J. MICHAEL JOHNSON, ESQ.
2250 Hospital Drive, Suite 248
Bossier City, Louisiana 71111
Official Court Reporter:
Toni Doyle Tusa, CCR, FCRR

500 Poydras Street, Room HB 406
(504) 589 7778
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Proceedings recorded by mechanical stenography using

computer aided transcription software.
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14-31037.2019
I N D E X
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Oral Argument
Dalton Courson, Esq.
Kyle Duncan, Esq.
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Dalton Courson, Esq.
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Conference in Chambers
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14-31037.2020
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PROCEEDINGS
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(June 25, 2014)
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et al. versus Caldwell, et al.
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THE COURT:
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MR. COURSON:
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defendants, with Michael Johnson.
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table Jason DeCuir, executive counsel, Louisiana Department of
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Revenue.
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Garth Beauregard, Your Honor.
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THE COURT:
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comments.
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insatiable national interest.
THE COURT:
Good morning, Counsel.
Call the case, please.

THE DEPUTY CLERK:
Civil Action 13 5090, Robicheaux,
Enter your appearances, Counsel.

Dalton Courson here on behalf of the
plaintiffs with Lesli Harris, John Landis, and Maurine Wall.

MR. PERQUE:
Richard Perque on behalf of the
Robicheaux and Blanchard plaintiffs.

MR. DUNCAN:
MR. SPIVEY:
Kyle Duncan, on behalf of the

We also have here at counsel
Scott Spivey with Robert Welles and
Sorry.
I didn't see you back there.
Tell me again.
MR. SPIVEY:
Scott Spivey with Robert Welles and
Garth Beauregard.
THE COURT:
Thank you very much.
Be seated, Counsel.
Before we begin, please indulge some brief

The issue before the Court is obviously of
It has been taken up by many
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federal courts in just a few months, and it has generated sharp
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opinion on both sides of the contest.
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continue long after this Court has ruled and the appeals
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process reverberates at the Supreme Court of the United States.
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helpful and professional briefs.
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amicus briefs which were submitted at this Court's invitation.
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I want to recognize and thank the plaintiffs and
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representatives of the State of Louisiana for what I appreciate
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I have read and studied every word of every brief and the
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federal decisions the parties here underscore.
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decide this case as fairly and as impartially as is humanly
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possible, and it will do so no matter how tempestuous the
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protests or demonstrations by either side; no matter what the
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media attention, fair or unfair, accurate or inaccurate.
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that leads me to conclude with a reminder to those who are here
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in court to observe these proceedings today.
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I understand how inflamed one might become about
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this constitutional struggle, but there will be no outbursts of
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any sort by anyone in this courtroom.
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observer violates the conduct expected by this Court, that
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person will be immediately removed from this courtroom and the
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courthouse and might also, if appropriate, face a fine and
That will no doubt
I want to thank counsel for all sides for their

I also appreciate the many
has been their appropriate and restrained decorum.

Finally, let me close with a point of emphasis.
This Court will
And
I apologize, but if any
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perhaps a criminal contempt charge.
The conflicting views of
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both sides here today deserve a civil respect in this court of
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law.
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I will appreciate the public's cooperation and I thank everyone
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here.
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class of citizens based on their sexual orientation and based
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on the gender of the person with whom they are married.
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Louisiana has not mustered a constitutional justification for
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these laws and they violate the Equal Protection Clause.
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fundamental due process rights, which include their right to
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marry, their right to remain married, and their parental
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rights.
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in Windsor, 13 other federal district courts have now held that
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state bans on the celebration or recognition of same sex
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marriages are unconstitutional.
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THE COURT:
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Maybe I have missed a couple.
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cited ten, and then we cited three additional in the reply.
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It's an ever changing number, Your Honor.
Outbursts of any sort might well have stern consequences.
Counsel, you may begin.

30 minutes.
Each side has
Do you want some whiskey instead of water?
MR. COURSON:
May it please the Court.
Louisiana's
laws governing marriage recognition discriminate against a
These laws also infringe on the plaintiffs'
Indeed, since the Supreme Court's decision last summer
I counted 11.
MR. COURSON:
What are the other two?
Your Honor, in our original brief we
We just received
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recent decisions in Oregon and Pennsylvania.
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Oregon.
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Nevada.
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the Ninth Circuit, and Nevada has dropped its appeal in light
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of the Ninth Circuit's holding in Smithkline that sexual
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orientation classifications are subject to heightened scrutiny.
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That was a pre Windsor case as well, Your Honor.
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THE COURT:
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MR. COURSON:
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Windsor held that sexual orientation classifications are
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subject to heightened scrutiny.
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rational basis even if the Court disagrees with us about the
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heightened scrutiny.
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THE COURT:
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federalism strand certainly to Windsor and an equal protection,
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due process rights strand.
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Court claims reliance on federalism and held that Congress'
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intrusion into the state domestic relations power was driven by
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a desire to harm a politically unpopular group.
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therefore, it was ultimately, at the end of the day, an equal
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protection and due process decision.
THE COURT:
I'm familiar with Pennsylvania, not
None of your papers mention the Sevcik case from
MR. COURSON:
Your Honor, the Sevcik case went up to
Whatever Windsor held.

Well, Your Honor, we believe that
It certainly applied a
Is it fair to say that Windsor sort of
offers a little something and a little hope to both sides?

MR. COURSON:
Well, Your Honor, there was a
At the end of the day, the Windsor
And,
That's what Justice
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Scalia recognized in his dissent as well.
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somebody to cite Justice Scalia.
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MR. COURSON:
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about the undisputed facts, then talk about the rationales that
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the case has put forward, and
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THE COURT:
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emphasize just that Louisiana has two contradictory marriage
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regimes: one for recognition of heterosexual couples from out
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of state, and an alternative regime for gay and lesbian couples
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from out of the state.
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discriminatory schemes, impose substantial harms on my client.
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Barfield, one of the defendants, has issued a revenue bulletin
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and tax instructions requiring my clients to disclaim their
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marital status on their tax returns and, therefore, getting
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differential treatment.
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It also is expressly contrary to Louisiana R.S.
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return.
THE COURT:
I was wondering how long it would take

Go ahead.
First I would like to talk quickly
I don't think there are any facts in
dispute.
MR. COURSON:
THE COURT:
No, Your Honor.
I don't think you need to worry about
that.
MR. COURSON:
No, Your Honor, but I would like to
These dichotomous schemes,
I would remind the Court about Secretary
The secretary is, in fact, carving out an exception to
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the Louisiana tax statute for same sex married couples.
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George, the state registrar.
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Brettner, were married at the time that they gave birth.
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Jackie had been a man, her marriage to Lauren would have been
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recognized by the registrar and she would have been able to
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assert her parental rights to the child.
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woman, the state registrar refused to name her as a parent on
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the birth certificate.
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importance of the birth certificate.
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issued governmental document where a parent can assert their
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parental right, so it is an important right.
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of the stigmatic harm that Justice Kennedy talked about in
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Windsor.
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there's just a general stigmatic harm by the state's refusal to
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recognize my clients' marriages.
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because I think we all agree that a great deal of this issue
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hinges, either expressly or implicitly, on what Windsor means
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and what Justice Kennedy in his majority opinion said.
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wrote the following, and I'm quoting:
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regulation of marriage has been treated as being within the
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authority and realm of the separate states.
My clients, we also named as a defendant Devin

My clients, Jackie and Lauren
If
Because she's a
The Henry v. Himes court noted the

It's the only commonly
I would be remiss if I didn't remind the Court
So in addition to these sort of concrete harms,
THE COURT:
Let me ask you a question about Windsor
He
By history and tradition the definition and
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State laws defining and regulating marriage must
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respect the constitutional rights of persons; but, subject to
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those guarantees, "regulation of domestic relations" is "an
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area that has long been regarded as a virtually exclusive
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province of the states."
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MR. COURSON:
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THE COURT:
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government could not discriminate against New York in defining
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marriage as same sex marriage.
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may not Louisiana do constitutionally what the federal
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government has prohibited itself from doing but in a different
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factual context.
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are spoken to in Windsor have yet been defined in the context
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of this or, frankly, the other cases around the country,
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although I know that the other cases have basically said yes.
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MR. COURSON:
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THE COURT:
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Sevcik, the Nevada case.
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that came up to Judge Jackson, on an issue about a report and
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recommendations, on the question of whether or not there was a
And he refers also to "an evolving understanding

of the meaning of equality."
I wonder if the constitutional rights of persons
in Windsor is properly defined as being the same rights here
today.
Your Honor, let me
Windsor basically said that the federal
I guess the question is may or
So I wonder if the constitutional issues that
Let me try to answer
That's essentially why I asked you about

I think there's a case in Baton Rouge
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constitutional issue involved in the same sex marriage context.
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Your Honor, I think the court cited Baker v. Nelson, which is
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not the precise issue before the Court today.
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to both sides.
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accept the fact that your clients and all the plaintiffs in
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this case have a sense of being aggrieved.
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the Court is whether that grievance, an understandable
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grievance, nevertheless rises to constitutional dignity.
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question by sort of putting Windsor aside for a moment and
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referring the Court to the cases like Loving, Zablocki, and
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Turner.
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quite direct with you.
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United States Constitution specifically abhor and condemn
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and correctly so
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can argue that the Constitution is so explicit in this case
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it might be there, but I don't think you can argue that it's so
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explicit.
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was explicit.
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That, I think, is what I think the struggle is here.
MR. COURSON:
THE COURT:
collateral issue.
I believe in the Baton Rouge case,
No, I understand.
Well, it might be a
I'm not sure.
My question or maybe thinking out loud applies

So it's a very long winded way of saying I
MR. COURSON:
THE COURT:
The issue before
Your Honor, I think I would answer your
Loving won't do you any good.
Let me be
The Civil War amendments to the
racial discrimination.
In Loving it was explicit.
I don't think you
In the other cases it
In Lawrence I think it's arguably explicit.
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I will be glad to hear you out.
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are having this hearing.
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appropriate to rely on race based cases because the
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Constitution is quite specific, and correctly so.
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there's still Zablocki and Turner.
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Supreme Court, Justice O'Connor writing for the majority, found
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a fundamental right for prisoners to enjoy the right of
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marriage.
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the time.
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marriage at the time.
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THE COURT:
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MR. COURSON:
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tradition, I think you have to add that element in the
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equation.
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MR. COURSON:
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THE COURT:
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MR. COURSON:
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MR. COURSON:
That's why we
I'm not satisfied that it's
Even putting Loving aside, Your Honor,

In Turner the
That was based on the idea of emotional support, the
spiritual significance of marriage

THE COURT:
about that?
It was still male female.
Am I right
The marriage
MR. COURSON:
Turner, yes.
There wasn't a right at
Missouri, in that case, did not allow same sex
to all citizens.
Right.
We know that fundamental rights extend
Cases like
THE COURT:
Fundamental rights by history and
Well, assuming there's a history
If you are talking about due process.

Right, Your Honor.
There is a history
and tradition of allowing a person to choose their spouse.
As
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the Idaho court in Latta v. Otter noted, what is the substance
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of that right for gays and lesbians other than the right to
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marry the person of their choosing?
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was a race case, Loving was about the right of those
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individuals to marry the person that they chose.
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doesn't.
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Court there had a specific constitutional expression of
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condemnation.
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respond that many cases
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gays and lesbians within the ambit of the Fourteenth Amendment.
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I will just leave it at that.
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THE COURT:
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MR. COURSON:
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rationales the state
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THE COURT:
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MR. COURSON:
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forward in favor of these laws.
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rational basis scrutiny
THE COURT:
Putting aside that Loving
In Turner
Which was prohibited by racial prejudice.
It was the miscegenational laws of Virginia.

MR. COURSON:
Yes, sir.
Your Honor, I would argue
that the Fourteenth Amendment also extends to other groups

other than just, you know
THE COURT:
women, sexual orientation
I understand that.
I'm not suggesting it
My point is, to speak to the issues in Loving, the
MR. COURSON:
Well, Your Honor, I guess I would

Romer, Lawrence
also included
Do you want that whiskey now?

I guess I would like to turn to the
I have some for Mr. Duncan too.

the rationales the state has put
Even if the Court applies
which we urge the Court to apply
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heightened scrutiny or, under the due process challenge, strict
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scrutiny.
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the state has to show a rational need between the regulation
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and
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THE COURT:
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MR. COURSON:
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the traditional right that the Supreme Court has recognized
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again as a fundamental right to marry the person of one's
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choosing.
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legitimate constitutional justification.
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about the marriage of a father and a daughter or a father and a
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son?
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Louisiana constitutional justifications for those other types
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of regulations, but here in this case the state hasn't mustered
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a constitutional justification to prohibit the recognition of
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my clients' marriages.
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Even if the Court decides to apply rational basis,
We don't disagree about any of that.

And none of the rationales that the
state has offered

THE COURT:
Let me ask you.
I'm not personalizing
this, but define for me the concept of marriage that you are
urging in this case.
MR. COURSON:
Well, I'm urging the Court to extend
The state cannot restrict that right without a
THE COURT:
What about first cousin marriages?
MR. COURSON:
THE COURT:
What
The state may be able to muster
So you would say the State of Louisiana,
by a constitutional amendment and by a statute after the
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democratic process is played out, could probably prohibit, say,
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father daughter marriage or uncle nephew marriage or aunt niece
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marriage but not same sex marriage?
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problems with relatives marrying each other that the state
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could muster
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THE COURT:
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MR. COURSON:
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addition to, of course, incest.
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could flow from that, but the state hasn't mustered any sort of
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rationale for same sex marriage.
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just not a fair comparison.
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THE COURT:
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MR. COURSON:
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forward are procreation and social consensus.
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talked about federalism, but we have already touched on that.
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the use of public funds in sectarian schools.
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public funds in sectarian schools.
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couple or
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a child in State A is receiving state money for a sectarian
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school, a Presbyterian school or whatever, and the parent gets
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transferred to State B.
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of public money for sectarian schools.
MR. COURSON:
I certainly think that there are
What's the difference in your mind?

Well, Your Honor, certainly there could
be societal problems with a father daughter marriage in
THE COURT:
All right.
Significant societal harms
There's no comparable.
It's
Go ahead.
The rationales that the state have put

They have also
Let's say State A passed a law permitting
the parent.
Okay.
Use of
And a couple, a married
Maybe one parent died.
The parent of
State B has a law prohibiting the use

Would that have
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constitutional consequences?
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due process.
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trying to help you do for me is to help me define some
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parameters for finding that constitutional right that you're
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arguing here today.
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feel aggrieved.
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that.
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grievance, rise to constitutional structure.
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giving you these examples because I'm trying to define in my
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own mind where this constitutional right comes from.
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read cases.
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district judge has written.
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for me the difference between a constitutional right here and
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what you seem to suggest might not be a constitutional right in
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other contexts as in, for example, the father daughter marriage
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or the aunt niece marriage or the question about the use of
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public money for sectarian education.
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scenarios you identified, the rational basis test would apply.
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We have urged heightened scrutiny on the basis of
MR. COURSON:
If I understand your question
correctly, Your Honor, you're asking if

THE COURT:
We are talking about equal protection and
That's the focus of your argument.
What I'm
I don't have any doubt that same sex couples

I have no doubt.
There's no dispute about
The issue is does that treatment, which results in their

That's why I'm
Look, I've been around here for 30 years.
I'm familiar with every word that every other
MR. COURSON:
I'm trying to get you to define
I would submit, Your Honor, that in the
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discrimination on the basis of sexual orientation and on the
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basis of gender, but in your scenarios I don't see a protected
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class being at issue.
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state for the sectarian education of his or her child has to
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move.
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amicus brief; has to move, similar to a soldier stationed in
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California has to move to Louisiana.
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hundred percent public money for a sectarian education because
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it's a better school.
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State B.
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child in a sectarian school.
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arguably
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arguably have a right to say, "Well, I want to send my kid to a
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Presbyterian school.
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there.
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MR. COURSON:
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THE COURT:
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MR. COURSON:
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THE COURT:
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MR. COURSON:
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rational basis test.
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THE COURT:
THE COURT:
A parent who has received help from the
I'm reminded of the brief that the military filed, an
Here's a parent in State A receiving maybe a
Right of choice.
Gets transferred to
You can't have any money for the education of your

Even though that parent might
if I'm following your argument, that parent might
I got money from State A when I lived
I had to transfer to State B because of my job."

Well, I think in that
Do you understand where I am?

I think, Your Honor, in that case if
that plaintiff brought an equal protection challenge

Right.
they would be subject to the
And what would the result be?
14-31037.2034
I think in that
18
10:29
MR. COURSON:
I don't know what
10:29
the result would be, Your Honor.
10:29
forward
10:29
rational basis test, would have to come forward with a
10:30
legitimate
10:30
law.
10:30
hypothetical for
10:30
10:30
10:30
10
Justice Kennedy's comment about "an evolving understanding of
10:30
11
the meaning of equality"?
10:30
12
actually does as precedent here.
10:30
13
many other judges around the country have said Windsor applies.
10:30
14
10:30
15
the bare desire to harm gays and lesbians by denying the
10:31
16
existence of their marriages without a constitutional
10:31
17
justification is unconstitutional.
10:31
18
10:31
19
a partner in the law firm that represents me on occasion
10:31
20
I have disclosed that already to everybody
10:31
21
Ms. Harris won a very big case here two years ago for a big
10:31
22
movie star.
10:31
23
I'm not going to tell you whose words I'm
10:31
24
reading, but I'm going to read some quotes to you from a
10:31
25
Supreme Court justice, and I'm going to ask you to react to
The state would have to come
actually, in that case the plaintiffs, under the
disprove all the state's justifications for the
The state may well have financial reasons in your
THE COURT:
I'm sorry to interrupt.
Would any of
these examples that I'm pressing on you qualify under
MR. COURSON:
THE COURT:
I'm trying to grasp what Windsor

I'm well aware that many,
I think what Windsor stands for is that
I'm going to test you now because you are

and
and also because
This applies to Mr. Duncan too.
14-31037.2035
19
10:31
them without telling you who wrote them.
10:32
10:32
They don't necessarily follow one another.
10:32
together:
10:32
10:32
significance, is the shattering effect this collection of views
10:32
has on the root principles of stare decisis, federalism,
10:32
judicial restraint, and most importantly separation of powers."
10:32
"In a democracy the first indicator of the
10:32
10
public's attitude must always be found in the legislative
10:32
11
judgments of the people's chosen representatives."
10:32
12
10:32
13
applicable provision provides great leeway and where the
10:32
14
underlying social policies are felt to be of vital importance,
10:32
15
the temptation to read personal preference into the
10:33
16
Constitution is understandably great."
10:33
17
10:33
18
submission, that the indicators most likely to reflect the
10:33
19
public's view
10:33
20
support the contention that evolving standards of decency
10:33
21
require this result.
10:33
22
essentially a legislative, not a judicial function."
10:33
23
10:33
24
MR. COURSON:
10:33
25
THE COURT:
Bear with me, please.
These are all quotes.

I have put them
"Less measurable, but certainly of no less
"First, where as here, the language of the
"One must conclude, contrary to petitioners'
legislative bodies, state referenda
do not
The assessment of popular opinion is
Do you know who it is yet?

I don't, Your Honor.
Finally:
14-31037.2036
20
10:33
"The sobering disadvantage of constitutional
10:33
adjudication of this magnitude is the universality and
10:33
permanence of the judgment.
10:34
action is its responsiveness to the democratic process, and to
10:34
revision and change: mistaken judgments may be corrected and
10:34
refinements perfected."
10:34
10:34
action undertaken today reflects a basic lack of faith and
10:34
confidence in the democratic process."
10:34
10
10:34
11
10:34
12
who the author is, Your Honor.
10:34
13
THE COURT:
10:34
14
MR. COURSON:
10:34
15
don't know the context of the quote that you read, but the
10:34
16
protection of minority constitutional rights
10:34
17
10:34
18
that the Court declared unconstitutional and then later
10:35
19
reversed itself.
10:35
20
10:35
21
the protection of minority constitutional rights is not subject
10:35
22
to the whims of the majority.
10:35
23
know the Court has already warned me about citing race cases
10:35
24
Watson v. Memphis, where the Court said the state desire to
10:35
25
make a minority wait to exercise fundamental rights until
The enduring merit of legislative
"It seems to me that the sweeping judicial
Let me have your comments.

MR. COURSON:
THE COURT:
Well, I guess you have stumped me as to
Ms. Harris is looking for it right now.

I would suggest to the Court that
I'll give you a hint.
MR. COURSON:
It was something
I guess, Your Honor, I would say that
I would cite the Court
and I
14-31037.2037
21
10:35
I don't have any quarrel with the race
10:35
cases.
10:35
to the Constitution to be adopted in that world.
10:35
Constitution specifically condemns race baiting, race bias,
10:35
race prejudice, race hatred.
10:36
10:36
is an issue.
10:36
this context does
10:36
unlike traditional marriages in Louisiana and maybe
10:36
10
minority, but in several other states as well.
10:36
11
other states or something.
10:36
12
That's why this hearing is on the basis of the law and not the
10:36
13
facts.
The issue is whether as a matter of law there has
10:36
14
been
there is the architecture for constitutional restraint
10:37
15
here.
10:37
16
10:37
17
10:37
18
10:37
19
10:37
20
10:37
21
that no matter what standard of review applies, whether it's
10:37
22
the most stringent or whether it's the most relaxed or whether
10:37
23
it's some intermediate scrutiny, that the majority if not all
10:37
24
of the courts thus far under any standard have found a
10:37
25
constitutional right.
THE COURT:
I can tell you that it took too long for the amendments
The
It specifically condemns it.
Here there is no specific condemnation.

I'm not suggesting there isn't.
There
The issue is in
admittedly same sex marriages are treated

in a
I think 11
I don't have any doubt about that.
Do you have something else you want to point out

to me?
MR. COURSON:
Well, Your Honor we didn't talk about
the reasons the Court should apply heightened scrutiny.

THE COURT:
You know, I'm fully aware of the fact
I don't have any doubt about that.
14-31037.2038
22
10:37
We can argue about what heightened scrutiny
10:37
means, about what intermediate scrutiny means, about what
10:37
rational basis means.
10:38
substance.
10:38
it's up to the judge to decide what they mean.
10:38
10:38
federal district court decisions and some state court decisions
10:38
which I have read
10:38
pointed out some dissents in the state court decisions
10:38
10
there's no doubt that the echo today is to strike down laws
10:38
11
that differentiate between traditional marriage and same sex
10:38
12
marriage.
10:38
13
standard of review is.
10:38
14
10:38
15
these cases have held previously
10:39
16
except the Middle District of Louisiana case
10:39
17
unconstitutional to differentiate between traditional and
10:39
18
same sex marriage.
10:39
19
10:39
20
the Nevada case.
10:39
21
and lesbians were politically powerful
10:39
22
10:39
23
the other if you are right about Windsor.
10:39
24
argument that if the judge in that case had to decide it today,
10:39
25
if you are right about Windsor, that case would have to be
Some people feel that they have
Some people feel that they are normative and that
In this case all the prior decisions, all the
essentially because the other side has
I have no doubt about that, no matter what the
The issue is whether there is correctly, as
MR. COURSON:
except the Nevada case and

that it's
I would differentiate our facts from
In the Sevcik case, the court found that gays
THE COURT:
The Nevada case is of no value one way or

I could make the
14-31037.2039
23
10:39
decided differently.
If Windsor is limited, then how that
10:39
judge would decide that case today is up in the air.
10:40
10:40
Justice Kennedy concluded Windsor with these words, "this
10:40
opinion and its holding are confined to those lawful
10:40
marriages," the marriages in New York that were the litigants
10:40
in the Windsor case, which was an estate tax case.
10:40
10:40
10:40
10
10:40
11
Kennedy's comments about "evolving understanding of the meaning
10:40
12
of equality."
10:40
13
10:40
14
10:40
15
MR. DUNCAN:
10:40
16
THE COURT:
10:41
17
count 11, but maybe there are 13 federal district court cases
10:41
18
around the country that disagree with you.
10:41
19
MR. DUNCAN:
10:41
20
THE COURT:
10:41
21
MR. DUNCAN:
10:41
22
and I can't explain it.
10:41
23
properly the seven pages that Windsor spends talking about the
10:41
24
historic and essential authority of states to define the
10:41
25
marital relation.
And, of course, we all have to remember that
I would invite the Court to extend the
MR. COURSON:
rationale of Windsor to this

THE COURT:
Well, that does.
I agree with you.
That gets to Justice
I couldn't agree more.
Let me hear from Mr. Duncan.
Save the whiskey
for him.
May it please the Court.
Judge
There are at least 13, maybe
That's correct, Your Honor.

Why shouldn't I disagree with you?
They are misreading Windsor, Your Honor,
I don't know why they are not reading
All I can say is Windsor is crystal clear.
14-31037.2040
24
10:41
THE COURT:
They are good judges.
10:41
MR. DUNCAN:
10:41
THE COURT:
10:41
MR. DUNCAN:
10:41
10:41
10:41
Sotomayor, but most people seem to forget that and cite Scalia
10:41
to me.
10:41
10:41
10
what it says.
10:41
11
the plaintiffs here are saying Windsor is based on a
10:41
12
freestanding equal protection and due process rationale.
10:42
13
THE COURT:
10:42
14
MR. DUNCAN:
10:42
15
federal government demeaned gay people in their marriages by
10:42
16
passing DOMA Section 3 and, therefore, it's unconstitutional.
10:42
17
That's how I understand their argument.
10:42
18
equal protection argument.
10:42
19
10:42
20
means, why did Windsor spend seven pages in the Supreme Court
10:42
21
reports detailing the historic and essential authority of
10:42
22
states to define the marital relation?
10:42
23
10:42
24
10:42
25
I have no doubt.
I mentored one of them.
I have no doubt.
In the Kentucky case,
for instance, Your Honor

THE COURT:
MR. DUNCAN:
Of course, I also mentored Justice
These judges are not reading Windsor for
Let me put it this way.
These other courts and
Freestanding meaning open ended?

No, freestanding meaning, Look, the
It's a freestanding
Now, if that's true, if that's what Windsor
THE COURT:
Subject to constitutional guarantees.
Why isn't this a constitutional guarantee?

MR. DUNCAN:
Right.
Well, look at the case the court
14-31037.2041
It cites Loving for that.
25
10:42
cites.
10:42
there's no question that invidious racial discrimination
10:42
violates the core meaning of the Fourteenth Amendment.
10:42
what Loving said.
10:42
THE COURT:
10:42
MR. DUNCAN:
10:42
strict scrutiny along the lines of Loving.
10:42
pointed out, you have got a history in this country of
10:43
invidious racial discrimination that resulted in three
10:43
10
constitutional amendments.
10:43
11
that, and it said it violates the central meaning of the
10:43
12
Fourteenth Amendment.
10:43
13
argue for heightened scrutiny.
10:43
14
basis is all that applies and that's what Windsor applied.
10:43
15
10:43
16
10:43
17
10:43
18
consideration that Windsor uses is directly from Romer, which
10:43
19
is directly from state tax cases about rational basis, as
10:43
20
Judge O'Scannlain just said in his dissent that I filed last
10:43
21
night.
10:43
22
10:43
23
Windsor
10:43
24
sides of Windsor, and you see that in some of the opinions.
10:43
25
don't think so.
THE COURT:
As Your Honor pointed out,
That's
Can't this be analogous to that?

Not even the plaintiffs are arguing for
As Your Honor
Loving was recognizing the force of
Here you have the plaintiffs trying to

We strongly think rational
Well, Windsor really is pretty unclear
about what it was applying.

MR. DUNCAN:
Well, the language of careful
More importantly, though, the two halves of

you know, Your Honor said there seemed to be two
We
14-31037.2042
26
10:43
We think the two parts of Windsor work together
10:43
perfectly.
10:43
define marriage, to define the marital relation.
10:44
Section 3 was an unusual departure from that.
10:44
out of its way to say, Look, DOMA is the sweeping sort of
10:44
usurpation of the normal deference that we have to state
10:44
authority.
10:44
THE COURT:
10:44
MR. DUNCAN:
10:44
10
Windsor.
10:44
11
of the Constitution and the full faith and credit clause of
10:44
12
DOMA.
10:44
13
10:44
14
Windsor as saying Section 3 was unconstitutional because it
10:44
15
discriminated on the basis of sexual orientation.
10:44
16
what Windsor says.
10:44
17
in that it usurped traditional state authority over marriage.
10:44
18
10:44
19
then, of Windsor was to say that the federal government cannot
10:44
20
constitutionally discriminate against a state which lawfully
10:45
21
adopts a definition of marriage as same sex marriage, in the
10:45
22
case of New York, can't do it.
10:45
23
MR. DUNCAN:
10:45
24
THE COURT:
10:45
25
You have traditional historic state authority to

DOMA
The Court went
Section 2 isn't at issue here, is it?

No.
Section 2 was not at issue in
Section 2 reinforces our argument about the structure
It wasn't an issue in Windsor.

Section 3, though
the plaintiffs want to read
That's not
Windsor says it's an unusual discrimination
THE COURT:
Let's assume you're right.
That's correct.
The effect,
That's correct.
Why is the State of Louisiana allowed to
do what the federal government is prohibited from doing?
14-31037.2043
27
10:45
Because of all in the seven pages where
10:45
Windsor said states have a historic and essential authority to
10:45
define the marital relation.
10:45
core of their domestic relations authority.
10:45
government was acting at the fringes of its authority.
10:45
why the Court said, Look, there are limited situations where
10:45
the federal government can use the marriage definition; for
10:45
immigration purposes and social security purposes, for example.
10:45
10:45
10
Supreme Court before the Civil War amendments.
10:46
11
Plessy v. Ferguson and all of that, all the bad cases.
10:46
12
assume this issue came before the Court then
10:46
13
race discrimination
10:46
14
opinion regarding the "evolving understanding of the meaning of
10:46
15
equality."
10:46
16
slavery and race bias?
10:46
17
10:46
18
That's why we had to have the Thirteenth, Fourteenth, and
10:46
19
Fifteenth Amendments.
10:46
20
race
10:46
21
10:46
22
10:46
23
10:46
24
language in Windsor, Your Honor, that talks about the "evolving
10:46
25
understanding of the meaning of equality."
MR. DUNCAN:
THE COURT:
The states are acting within the
Let me ask you this.
The federal
That's
Go back to the
Forget about
Let's
slavery, race,
and there was some language in an
Would the Supreme Court back then have condemned
MR. DUNCAN:
THE COURT:
I doubt it, Your Honor.
I doubt it.
Look, who was it who said slavery and
So your argument basically is that's why
we need the democratic process to carry out its message.

MR. DUNCAN:
Well, exactly, and you pointed out the
14-31037.2044
Now, here's where that is in Windsor.
28
10:46
It's in
10:47
2693 in Windsor, and what it's talking about is New York's
10:47
decision that it made in 2011.
10:47
decision by New York, "both the community's considered
10:47
perspective on the historical roots of the institution of
10:47
marriage and its evolving understanding of the meaning of
10:47
equality."
10:47
10:47
10:47
10
as, by my count, 2010 or 2011.
10:47
11
from the New York Court of Appeals, Hernandez v. Robles, that
10:47
12
we agree with in its entirety about the constitutional issue.
10:47
13
And yet the people of New York said, Look, we have a different
10:47
14
conception of marriage.
10:47
15
equality.
10:47
16
10:47
17
legislative process, what Windsor called a statewide
10:47
18
deliberation on the pros and cons of same sex marriage.
10:48
19
Windsor says is when a state does that, then the federal
10:48
20
government violates the Fifth Amendment by discriminating
10:48
21
against that state choice.
10:48
22
10:48
23
this in my brief, but I should have.
10:48
24
Section 3 "interfered with state sovereign choices" about who
10:48
25
may marry.
It says it reflects, that
Now, Windsor went out of its way to say, look

New York did not recognize or adopt same sex marriage as late
In fact, we have an opinion
We have a different understanding of
And so what happens?
Here's the language.
They went through the
What
I don't think I quoted

Windsor says DOMA
State sovereign choices.
14-31037.2045
29
10:48
Remember, the author of Windsor is Justice
10:48
Kennedy.
10:48
about federalism.
10:48
where it talks about federalism preserving the ability of
10:48
people in a state to sort of
10:48
who want to shape their own destiny.
10:48
New York said, We have a new perspective and a new insight.
10:48
are going to legislate that.
10:48
said that's exactly the way things should work.
10:48
10
10:48
11
two halves of Windsor
10:49
12
two halves.
10:49
13
together, and so what that means
10:49
14
10:49
15
10:49
16
10:49
17
frankly, had the better of that argument when he wrote in his
10:49
18
dissent, Look, this is about federalism.
10:49
19
federalism.
10:49
20
10:49
21
justices in Windsor discarded federalism.
10:49
22
Five justices in Windsor, a majority of the Court, embraced
10:49
23
federalism as the animating rationale.
10:49
24
10:49
25
Justice Kennedy has written many eloquent opinions

Bond v. United States is quoted in Windsor
I'm paraphrasing
That's what New York did.

We
The New York Court of Appeals
That's what Windsor is about.
That's why the
although I really don't think they are
That's why Windsor is of a piece.
THE COURT:
honor those
The two go
Well, Justice Scalia certainly thought
that Windsor offered a little bit to everybody.

MR. DUNCAN:
Well, Chief Justice Roberts, I think,
This is about
We disagree with the plaintiffs that seven

That's not the case.
Now, the other side will say, Well, Windsor said

it need not decide it purely on federalism grounds.
That's
14-31037.2046
30
10:49
true because Windsor spent two or three paragraphs talking
10:49
about a limited federal authority over marriage, so it couldn't
10:49
very well say this is a Tenth Amendment case pure and simple.
10:49
10:49
asked Mr. Courson about, the hypothets of public funds for
10:50
sectarian education differing among the states and what can a
10:50
state do in defining marriage according to Justice Kennedy?
10:50
And the examples I gave were what about an aunt niece marriage,
10:50
a first cousin marriage, father son marriage, brother brother,
10:50
10
10:50
11
MR. DUNCAN:
10:50
12
THE COURT:
10:50
13
10:50
14
10:50
15
question, Judge.
10:50
16
I'm assuming that the funding doesn't violate the Establishment
10:50
17
Clause or implicate free exercise at all.
10:51
18
10:51
19
states coming to different conclusions about how to fund
10:51
20
religious schools.
10:51
21
joints there.
10:51
22
They are using tax credits for the most part these days and not
10:51
23
direct funding, but the states come to different conclusions.
10:51
24
Now, this is an area where emotions run very high.
10:51
25
got parents concerned about their children's education, and you
THE COURT:
What is your reaction to the questions I
sister sister.
Right.
Where does this issue take a community or
a society or a state or the nation, for that matter?

MR. DUNCAN:
Here's how I understand your first
The question about sectarian school funding,
What you have got there is you have different
The Supreme Court said there's play in the
The states can come to different conceptions.
You have
14-31037.2047
31
10:51
have religion in the mix too, and yet the states go different
10:51
places.
10:51
10:51
Arizona about tax credits for sectarian schools.
10:51
shows
10:51
work.
10:51
common good even with respect to something that sensitive.
10:51
10:51
10:51
10
over something extraordinarily sensitive, affirmative action.
10:51
11
We have got far more Supreme Court opinions on affirmative
10:52
12
action than we do on same sex marriage.
10:52
13
10:52
14
10:52
15
10:52
16
Michigan had the ability to end discrimination, and the
10:52
17
Supreme Court recognized that.
10:52
18
leading up to Schuette.
10:52
19
Michigan amendment said is that you are institutionalizing
10:52
20
discrimination by banning affirmative action in your state
10:52
21
constitution.
10:52
22
down under the Equal Protection Clause.
10:52
23
10:52
24
it's a powerful opinion
10:52
25
paraphrasing
So there was a recent Supreme Court case out of

Now, that
as we say in our brief, that's our Constitution at

States can come to different conceptions about the
That's what the Schuette case is about, by the

way.
The Schuette case is about people in Michigan debating
THE COURT:
this.
The plaintiffs distinguish Schuette from
How do you deal with it?

MR. DUNCAN:
Right.
Sure.
The plaintiffs say that
Those weren't the arguments
What the people who were against the
That's why the Sixth Circuit en banc struck that
What Justice Kennedy said in Schuette

is he said, Look
and
I'm
the democratic process is a durable thing.
We
14-31037.2048
32
10:52
debate very, very sensitive and important issues.
10:52
10:52
10:52
10:52
You know, the Court says sometimes the debates shade into
10:52
rancor, but to remove those debates from the democratic
10:53
process
10:53
to the democratic process.
10:53
10:53
10
that.
10:53
11
was, I don't know, six months after Windsor.
10:53
12
strong affirmation of the democratic process.
10:53
13
10:53
14
not the words of Justice Kennedy that I was reading to
10:53
15
Mr. Courson.
10:53
16
10:53
17
have been the dissent in Bowers v. Hardwick, but I'm probably
10:53
18
wrong about that.
10:53
19
THE COURT:
10:53
20
the comments I read?
10:53
21
10:53
22
was that the Court was overriding a legislative choice because
10:53
23
of its own notions of evolving standards of decency.
10:53
24
10:53
25
And this is one of them.
Affirmative action and
same sex marriage are extremely important issues.

We debate them.
Sometimes we lose our temper.
and this is Schuette talking, not me
is demeaning
It's demeaning to the democratic process to do

That's Justice Kennedy, the author of Windsor.
THE COURT:
Schuette
I read that as a
The meaning to the democratic process are
Do you know who I was reading?
MR. DUNCAN:
MR. DUNCAN:
THE COURT:
I was trying to guess.
You're wrong.
My guess would
What's your reaction to
If I'm remembering correctly, the idea
It was a capital punishment case.
It was
Furman v. Georgia, and it was Justice Powell's dissent, joined
14-31037.2049
33
10:54
in by Justice Rehnquist and Justice Blackmun.
10:54
10:54
that is that when the Court reversed itself, the Court was
10:54
recognizing that it needed to keep its hands off of making
10:54
those kind of policy determinations in the death penalty area.
10:54
And that's, by the way, even though there is an evolving
10:54
standard, a decency standard in the Eighth Amendment.
10:54
no such standard in the Fourteenth Amendment, right, so that's
10:54
my reaction to that.
10:54
10
10:54
11
10:54
12
10:54
13
the papers and the amicus submissions is that people have a
10:54
14
right to be in love; and if that loving relationship is genuine
10:54
15
and has a permanence and if they decide they want to get
10:54
16
married, they should have a constitutional right to do that.
10:54
17
MR. DUNCAN:
10:54
18
THE COURT:
10:55
19
the message, although it's sometimes spoken in different ways.
10:55
20
I think that's the kernel of the dispute.
10:55
21
relate to assuming that loving relationship and that
10:55
22
permanence, what about an aunt and a niece?
10:55
23
father and a son, or a father and a daughter, or an uncle and a
10:55
24
nephew, or first cousins?
10:55
25
MR. DUNCAN:
Right.
Right.
Well, my reaction to
There is
Now, your second hypothetical involved age and

consanguinity requirements among the states.
THE COURT:
MR. DUNCAN:
What I get from a lot of the briefs and
That's my understanding.
I think that's a fair characterization of
So my questions
What about a
Well, what your question points to,
14-31037.2050
34
10:55
Your Honor, is that there is a right to marry.
10:55
question that there are cases that talk about a right to marry,
10:55
but there is a long line of cases that say we have to carefully
10:55
define the asserted right in any particular case.
10:55
10:55
specifically noted that states vary in the permissible age of
10:55
marriage.
10:55
that the minimum age is 13.
10:56
empowered to make those different choices?
10:56
10
10:56
11
10:56
12
intense personal commitment to a 13 year old, and I'm in a
10:56
13
state that doesn't allow that"
10:56
14
state where the age of marriage is 16 or 17 or 18
10:56
15
person be able to make a right to marriage argument under
10:56
16
Zablocki, under Turner, under Loving v. Virginia?
10:56
17
10:56
18
carefully described, there is no deeply rooted right to marry a
10:56
19
13 year old in our national history.
10:56
20
that, but there's no deeply rooted right under the Due Process
10:56
21
Clause.
10:56
22
Windsor said that states may vary on things like
10:56
23
age and permissible degree of consanguinity, which you point to
10:56
24
first cousins.
10:57
25
many states allow first cousins to marry.
Let's take age, for example.
There's no
So Windsor
Windsor pointed out I believe it's New Hampshire

Now, are states constitutionally
Those are
significant policy choices about the age of marriage.

If someone showed up and said, "Look, I have an
not New Hampshire, some other

would that
First of all, the answer is no because,
A state may choose to do
Now, I don't know off the top of my head how

It's probably a
14-31037.2051
35
10:57
majority of the states.
The question is do you have a
10:57
fundamental right to enter into that relationship, and the
10:57
answer has to be no based on what Windsor said and based on our
10:57
national history.
10:57
10:57
want to enter into the relationship.
10:57
well, it's two questions.
10:57
national history and traditions.
10:57
judicial restraint because in all those due process cases, the
10:57
10
Supreme Court said, Look, the reason that we have to be careful
10:57
11
in describing the right is because otherwise the preferences of
10:57
12
the members of this Court will become part of the Constitution.
10:57
13
10:57
14
some people hate it, but I think judges who have to administer
10:57
15
it recognize
10:57
16
to be cabined correctly.
10:57
17
right to die cases: Glucksberg, Cruzan.
10:57
18
cases" as a shorthand, but the Supreme Court has to define that
10:58
19
right much more carefully to figure out why certain things are
10:58
20
included in it and certain things are not.
10:58
21
10:58
22
gender of the proposed spouse is the
10:58
23
that in the description of the right asserted, and that right
10:58
24
is not deeply rooted.
10:58
25
itself said
It's not a question of demeaning the people who

It's a question of
It's a question of defining our

And it's also a question of
Substantive due process, some people love it,
the Supreme Court certainly does
that it has
So look, for instance, at the

We say "right to die
Our only point here is that taking out the

you have to include
If there's any doubt about it, Windsor
and I know I quoted this a lot in the briefs,
14-31037.2052
36
10:58
and I will quote it again, where Justice Kennedy wrote
10:58
"marriage between a man and a woman no doubt has been thought
10:58
of by most people as essential to the very definition of that
10:58
term."
10:58
to heterosexual couples for centuries had been deemed both
10:58
necessary and fundamental."
10:58
10:58
reading from the majority opinion.
10:58
the majority is saying is that New York has the ability, the
10:58
10
constitutional ability of its citizens to come to a formation
10:59
11
of consensus about their evolving notions of equality.
10:59
12
why we have 50 states.
10:59
13
THE COURT:
10:59
14
MR. DUNCAN:
10:59
15
THE COURT:
10:59
16
10:59
17
10:59
18
that's because Windsor always leads me there.
10:59
19
for seven pages about this.
10:59
20
define marriage over 10 times in Windsor.
10:59
21
it's not one of these sort of, quote/unquote, states' rights
10:59
22
arguments where you say, Look, whatever the states want to do,
10:59
23
that's okay.
10:59
24
notion to federalism.
10:59
25
He went on to write "the limitation of lawful marriage
Now, I'm not reading from a dissent.
I'm
What Justice Kennedy and
That's
You return to the democratic process.

That's correct.
Your argument always takes you to the
democratic process.
MR. DUNCAN:
Well, with all due respect, Your Honor,
I counted the phrase definition or
That's not the argument.
THE COURT:
Windsor goes on
I note that Windsor,
There's a positive
That's a racial argument.
14-31037.2053
10:59
10:59
argument.
10:59
which is "the dynamics of state government in the federal
10:59
system are to allow the formation of consensus."
10:59
decision because if you don't have a genuine formation of
11:00
consensus, how can a state really make this decision?
11:00
11:00
around the country are saying the states cannot point to any
11:00
harm that would come from recognizing same sex marriage.
11:00
10
Windsor gives the response to that.
11:00
11
that when a state defines marriage, it recognizes that marriage
11:00
12
is more than a routine classification for purposes of statutory
11:00
13
benefits.
11:00
14
The states recognize how important marriage is.
11:00
15
The Court said the states have the responsibility for domestic
11:00
16
relations because they indicate the substantial societal
11:00
17
impact.
11:00
18
which is why states have to be cautious and have a genuine
11:00
19
formation of consensus before they do this.
11:00
20
11:00
21
11:00
22
11:00
23
Windsor instructs us that that grievance needs to be addressed
11:00
24
by the democratic process, as it was in New York and as it has
11:01
25
been in, I count, 13 other states.
MR. DUNCAN:
It's a bad argument.
37
That's a bad
The right argument is the way that Windsor put it,
That's a wise
You know, the plaintiffs and the district courts
Windsor itself recognizes
Windsor recognized that.
So there's no question that marriage is important,
THE COURT:
Do you agree that the plaintiffs are
aggrieved?
MR. DUNCAN:
Absolutely.
They are aggrieved.
But
That's where we do this so
14-31037.2054
38
11:01
that we can have peace in our nation.
11:01
11:01
Oliver Wendell Holmes probably who said our Constitution is
11:01
made for people of differing temperaments and differing
11:01
judgments.
11:01
dissenting in Lochner.
11:01
THE COURT:
11:01
MR. DUNCAN:
11:01
where people disagree
11:01
10
fundamentally what is marriage, what does equality mean.
11:01
11
there's a fundamental disagreement about it, how does our
11:01
12
Constitution take care of that process?
11:01
13
form of government where people can debate these issues just
11:01
14
like the people of Michigan debated the sensitive issue of
11:02
15
affirmative action in Schuette and just like the people of the
11:02
16
states are doing it now.
11:02
17
11:02
18
decisions that we cite most of all is the Hernandez case from
11:02
19
New York.
11:02
20
all due respect to the judges around the country, it's being
11:02
21
treated as if it were a part of ancient history.
11:02
22
11:02
23
around the country have spoken out pretty strongly, and they
11:02
24
certainly see a constitutional structure that I've been asking
11:02
25
about.
You know, I forget who it was said
Justice
He probably said that in Lochner or something,
Great man.
Well, it is.
And on an issue like this
there's no question people disagree

If
By having a republican
I think it's remarkable that one of the
That's a 2006 opinion and yet I have to say, with
THE COURT:
Well, the fact is that those judges
14-31037.2055
39
11:02
MR. DUNCAN:
Well, Your Honor
11:02
THE COURT:
11:02
11:02
11:02
reading of Windsor shows why they are mistaken about what they
11:02
are doing.
11:03
opinions, however many there are
11:03
look and find all the quotations from Windsor about the
11:03
essential and historic authority of states to define marriage,
11:03
10
11:03
11
11:03
12
the court at least saying that there are important federalism
11:03
13
concerns.
11:03
14
sort of passed by that and said, Well, the individual rights
11:03
15
trump it.
11:03
16
doing is building on the Kitchen decision, in our view, and
11:03
17
they are saying, Look, Kitchen is right, and they just sort of
11:03
18
build on that.
11:03
19
structural federalism dimensions of Windsor.
11:03
20
11:03
21
it's right there in black and white in Windsor.
11:03
22
it's very significant that the author of Windsor is a justice,
11:03
23
Justice Kennedy, who writes very eloquently about individual
11:04
24
rights but at the same time writes very eloquently about the
11:04
25
structure of our Constitution in a case like Bond and Windsor
I know that it's your argument that they
are wrong, but

MR. DUNCAN:
I think my argument is also that a fair
I find it remarkable in looking through all those

11, 12, 13 opinions
to
you just don't find it.

In the Kitchen opinion out of Utah, you do find
That was one of the early opinions.
The court just
But as you go forward, what all these decisions are
They are not giving enough attention to the
I find it remarkable.
I cannot explain it.
But
I do think
14-31037.2056
40
11:04
and Schuette and
11:04
11:04
11:04
11:04
power of prophecy, I will answer the question this way.
11:04
Remember there were two cases up there, Hollingsworth v. Perry
11:04
and Windsor, and the Court dismissed Hollingsworth for lack of
11:04
appellate standing.
11:04
11:04
10
guess, I will guess.
11:04
11
have written Hollingsworth to be the bookend to Windsor.
11:04
12
Windsor shows that the federal government can't override state
11:04
13
choices about marriage.
11:04
14
opinion would have said the states do have the sovereign
11:04
15
authority to decide the marriage question.
11:04
16
11:04
17
11:05
18
11:05
19
It would be consistent with the rationale in Windsor.
11:05
20
be a vote to uphold state sovereignty, which is the same vote
11:05
21
that he gave in Windsor.
11:05
22
THE COURT:
11:05
23
MR. DUNCAN:
11:05
24
MR. COURSON:
11:05
25
THE COURT:
If this case goes to the Supreme Court
eventually, how will Justice Kennedy vote?

Well, not having been blessed with the
MR. DUNCAN:
So here's my guess.
THE COURT:
Since you asked me to
I would say that Justice Kennedy would
This hypothetical Hollingsworth
So you think Justice Kennedy would vote
differently in this case than he did in Windsor?

It wouldn't be different, Your Honor.
MR. DUNCAN:
It would
Thank you.
Thank you.
Your Honor, I just want to make two
quick points in rebuttal.
First, this idea that the Court
14-31037.2057
41
11:05
11:05
11:05
11:05
democratic process when adjudicating minority fundamental
11:05
rights, that's never been the law.
11:05
unflagging obligation to adjudicate the plaintiffs before them,
11:05
and when they involve minority fundamental rights that is a
11:05
heightened burden on the courts.
11:05
11:05
10
11:05
11
11:06
12
11:06
13
11:06
14
11:06
15
THE COURT:
11:06
16
MR. COURSON:
11:06
17
THE COURT:
11:06
18
MR. COURSON:
11:06
19
Louisiana's head and master statute regarding marriage.
11:06
20
under traditional Louisiana civil law, the husband of the
11:06
21
marriage was the head and master of the marriage and could
11:06
22
alienate the community property without permission from the
11:06
23
wife.
11:06
24
of the Court exercising its right to protect the fundamental
11:06
25
rights of the minority group.
THE COURT:
you.
I don't think he left any whiskey for
Do you want a refill?
I think he needed a bunch himself.
that the Court should defer to the
MR. COURSON:
The courts have an
I would cite the Court to Kirchberg v. Feenstra.

THE COURT:
Wait one second.
Go ahead.
What's the name?
Is this in your
brief?
MR. COURSON:
It's not, Your Honor.
It's
450 U.S. 455 where the Supreme Court struck down Louisiana's
What's the name of the case?
Kirchberg v. Feenstra.
K I R C H B E R G?
The Supreme Court struck down
The Supreme Court struck that law down.
So
It's an example
14-31037.2058
42
11:06
THE COURT:
When was it decided?
11:06
MR. COURSON:
11:06
11:07
THE COURT:
11:07
MR. COURSON:
11:07
Your Honor, if we let the democratic process play out in this
11:07
state in particular, we know what the result will be for the
11:07
foreseeable future.
11:07
11:07
10
11:07
11
11:07
12
criminalize consensual intimacy between gays and lesbians
11:07
13
despite the fact that Lawrence declared that law
11:07
14
unconstitutional 11 years ago.
11:07
15
THE COURT:
11:07
16
to comment on Louisiana politics except to remind you that I
11:07
17
have already dealt with the constitutionality of the sex
11:07
18
offender registration statute.
11:07
19
11:07
20
Unlike your hypothetical where you talked about sectarian
11:07
21
education, education is not a fundamental right, but marriage
11:08
22
is.
11:08
23
THE COURT:
11:08
24
want to get married?
11:08
25
I think it was decided in 1980,
Your Honor.
THE COURT:
1980.
In particular with gays and lesbians,
Well, it hasn't been in other states.
I'm just wondering what you base that on.

MR. COURSON:
Well, Louisiana continues to
Right.
MR. COURSON:
I understand that.
I'm not going
Marriage is a fundamental right.
What about the aunt and the niece who
MR. COURSON:
Well, I certainly think that the state
14-31037.2059
43
11:08
could muster a constitutional justification for why those two
11:08
individuals should not be permitted to marry.
11:08
THE COURT:
11:08
MR. COURSON:
11:08
11:08
THE COURT:
11:08
MR. COURSON:
11:08
justification for recognizing my clients' marriage.
11:08
my clients are already validly married.
11:08
10
THE COURT:
11:08
11
MR. COURSON:
11:08
12
rationale for why they would refuse to marry.
11:08
13
rationales before, procreation, social consensus, none of those
11:08
14
have been
11:08
15
11:08
16
11:08
17
11:08
18
Justice Kennedy and Windsor and, of course, my responsibility
11:09
19
is to try to decide what, if any, binding force Windsor has,
11:09
20
directly or indirectly, quite frankly.
11:09
21
11:09
22
like your brief response anyway.
11:09
23
sides a chance to respond just very briefly, and then we will
11:09
24
get to some housekeeping.
11:09
25
You think the state could?

I think the state could muster a
constitutional
THE COURT:
You do.
But the state here has not mustered any
Remember,
[verbatim]
I understand that.
The state has mustered absolutely no
I mean, the
Let me ask you one last question, and
then we are going to have to get to some housekeeping issues.

Justice Kennedy wrote this.
Everybody is citing
I think I understand your answer, but I would

In fact, I will give both
"The dynamics of state government in the federal
14-31037.2060
this is a quote
44
11:09
system"
11:09
consensus respecting the way the members of a discrete
11:09
community treat each other in their daily contact and constant
11:09
interaction with each other."
11:09
standards of decency or about the robustness for the need for a
11:10
democratic process?
11:10
11:10
11:10
11:10
10
MR. COURSON:
11:10
11
THE COURT:
11:10
12
11:10
13
11:10
14
11:10
15
11:10
16
government"
11:10
17
federal system are to allow the formation of consensus
11:10
18
respecting the way the members of a discrete community treat
11:10
19
each other in their daily contact and constant interaction with
11:10
20
each other."
11:10
21
11:10
22
11:10
23
11:10
24
Louisiana has rejected the idea of same sex marriage and
11:10
25
created these two unequal schemes, unlike New York, which
MR. COURSON:
"are to allow the formation of
Is that a comment about evolving
Your Honor, I don't know the context of
that case.
THE COURT:
This is Windsor.
Oh.
This is Justice Kennedy in Windsor,
page 19 of the opinion.

MR. COURSON:
Can you read the quote again for me,
Your Honor?
THE COURT:
Yes.
"The dynamics of state
the dynamics of state government
"in the
Now, he says that's what New York did.
Now, is
that what Louisiana did?

MR. COURSON:
No, it's not what Louisiana has done.
14-31037.2061
45
11:11
11:11
New York had the right to do what it did, says Justice Kennedy.
11:11
I guess the unanswered question thus far is did Louisiana have
11:11
the right, through its democratic process, to do what it did.
11:11
11:11
11:11
11:11
Court that Louisiana also recognizes valid marriages which the
11:11
state here does not allow celebrating, like your first cousin
11:11
10
11:11
11
11:11
12
Franklin Roosevelt married his first cousin, though.
11:11
13
know that?
11:11
14
MR. COURSON:
11:11
15
THE COURT:
11:11
16
MR. COURSON:
11:11
17
THE COURT:
11:11
18
11:11
19
11:11
20
11:11
21
11:11
22
11:12
23
11:12
24
11:12
25
THE COURT:
New York had the right to do what it did.
MR. COURSON:
Not when it impinges on my clients'
fundamental rights to marry.

And again, Your Honor, I would just remind the
marriage example.
[verbatim]
THE COURT:
My first cousin didn't get married.

Did you
I did not know that, Your Honor.
He did.
Eleanor was his first cousin.
Thank you, Your Honor.
Thank you, now that you are so
enlightened.
Mr. Duncan, I was going to give you a brief
chance to respond.
MR. DUNCAN:
I don't have anything further.
If you
have any further questions for me

THE COURT:
No.
and it's partly my fault.
I do have some housekeeping, though,

This is submitted, by the way.
There are several issues that you all apparently
14-31037.2062
46
11:12
agreed not to brief that give me some concern because I don't
11:12
want to piecemeal decide this case.
11:12
the record and so that everyone will understand, there are, I
11:12
guess, two cases, No. 14 97 and No. 14 327.
11:12
No. 14 327, I believe
11:12
common to both those cases, the equal protection and due
11:12
process issues common to both those cases.
11:12
11:13
11:13
10
follows:
11:13
11
protection claim regarding the recognition of out of state
11:13
12
same sex marriages and the right to marry in Louisiana.
11:13
13
that's been argued here, though, right?
11:13
14
11:13
15
11:13
16
THE COURT:
11:13
17
MR. DUNCAN:
11:13
18
No. 14 97
11:13
19
unmarried same sex couples
11:13
20
THE COURT:
11:13
21
MR. DUNCAN:
11:13
22
11:13
23
THE COURT:
11:13
24
marry, in No. 14 97.
11:13
25
Just for the benefit of
is that correct
Today has involved

and the issues
There are issues that are unique to each of

those cases.
If my understanding is correct, they are as
In No. 14 97, there is still pending an equal
MR. DUNCAN:
Well,
Your Honor, my understanding is that we
agreed to do the recognition claims.

They overlap.
And in one of the cases
I think it's
there are also claims that Louisiana should allow
The right to marry.

That's right.
We agreed not to address
that.
Well, that's still pending, the right to
In No. 14 97, recognition and entitlement to a
14-31037.2063
47
11:13
marriage license I believe is still pending, whereas in
11:13
No. 14 327 recognition only, which of course has been dealt
11:14
with.
11:14
11:14
recognition and the license issue; and in No. 14 327, the
11:14
First Amendment and recognition issue only.
11:14
11:14
Now, my question is
11:14
needs time to respond to the citation of Kirchberg
11:14
10
MR. DUNCAN:
11:14
11
THE COURT:
11:14
12
you want briefing on these issues that I have just highlighted
11:14
13
or do you waive briefing?
11:15
14
issues or do you waive oral argument?
11:15
15
conference?
11:15
16
11:15
17
and the First Amendment issue, I believe if the Court rules in
11:15
18
favor of the plaintiffs on the recognition claims, then we
11:15
19
would be willing to dismiss the First Amendment claim without
11:15
20
prejudice as being moot.
11:15
21
THE COURT:
11:15
22
decide these cases piecemeal.
11:15
23
litigants and I think it's, frankly, only fair to the public
11:15
24
that these issues, whatever they might be that are still
11:15
25
pending and unresolved, should be addressed one way or another,
In No. 14 97, full faith and credit, both
So there are still some pending issues of law.

well, let me back up.
If the defense
No, we don't, Your Honor.

We don't need briefing on that, but do
MR. COURSON:
Do you want oral argument on those

Do you want to have a
Your Honor, the Forum for Equality case
Well, that's my point.
I don't want to
I think it's only fair to the
14-31037.2064
48
11:15
either by a waiver now or by additional briefing and oral
11:15
argument if requested.
11:15
MR. DUNCAN:
11:15
THE COURT:
11:15
MR. DUNCAN:
11:16
is very important to the state because there are a number of
11:16
appeals going forward already.
11:16
whatever judgment this Court renders on the claims today that
11:16
it be a separately appealable order.
11:16
10
Rule 54 motion, if necessary, to make sure that it's an
11:16
11
appealable order.
11:16
12
11:16
13
issues, we can talk about it.
11:16
14
The First Amendment claim that Mr. Courson has brought, that
11:16
15
seems separable to us.
That seems like an issue that has to
11:16
16
stand on its own legs.
That would require some kind of
11:16
17
separate proceeding.
11:16
18
THE COURT:
11:16
19
MR. DUNCAN:
11:16
20
THE COURT:
11:16
21
11:16
22
MR. DUNCAN:
11:16
23
THE COURT:
11:16
24
11:16
25
That's my point.
May I respond, Your Honor?
Yes.
Okay.
Two things.
Not piecemealing it
So it is important that
We are willing to make a
So that's an important concern to the state.
Whether this Court goes ahead and decides other

At this point our view is this.
Well, it hasn't been briefed

It hasn't been briefed.
and I have had no argument about any
of these issues.
Our view is while the Court is
Full faith and credit might be as serious
as the other issues that have been raised today.

MR. DUNCAN:
Well, I should raise that, then.
Let me
14-31037.2065
11:16
just raise that first.
11:16
you may choose not to reach this.
11:17
Court's view is on this.
11:17
faith and credit claim should be dismissed for failure to state
11:17
a claim.
11:17
11:17
I'm not going to dismiss it on the state of the record as it is
11:17
presently.
11:17
MR. DUNCAN:
11:17
10
THE COURT:
11:17
11
briefed and perhaps even argued if you want oral argument.
11:17
12
not just going to take an issue of constitutional law and say,
11:17
13
"Oh, well, it's not relied on as much as maybe the other issues
11:17
14
are," and, therefore, ignore it.
11:17
15
11:17
16
position is this.
After we have argued these issues, which are
11:17
17
distinct issues
the recognition claim is a distinct issue.
11:17
18
I think Mr. Courson agrees with that.
11:17
19
11:17
20
11:17
21
11:17
22
depends on what the Court's preference is.
11:17
23
the state is that if the Court issues a decision on what we
11:18
24
have argued here today, that it be a separate appealable order.
11:18
25
I believe in our agreement, the scheduling agreement, we said
THE COURT:
MR. DUNCAN:
THE COURT:
unresolved issues.
The state has asked Your Honor
49
and
I don't know what the
The state has said that the full
I know, but I'm not going to dismiss it.
Okay.
If it's a serious issue, it's going to be
I'm
Well, as I understand it, the state's
They are distinct issues, but there are
That's my point.
MR. DUNCAN:
Well, then, I guess, Your Honor, it

What's important to
14-31037.2066
50
11:18
we would address these issues first, with the hopes of having a
11:18
separate appealable order, and then decide after that how we
11:18
would deal with the remainder.
11:18
MR. COURSON:
11:18
THE COURT:
11:18
MR. COURSON:
11:18
would agree to have this issue heard by the Court.
11:18
Court rules in favor of the defendants, then we would proceed
11:18
with the adjudication of the First Amendment claim.
11:18
10
11:18
11
11:18
12
11:18
13
11:18
14
11:18
15
anything.
11:18
16
issues one way or the other and not all issues one way or the
11:18
17
other.
11:19
18
11:19
19
have no idea how the Court is going to rule.
11:19
20
rule
11:19
21
THE COURT:
11:19
22
MR. DUNCAN:
11:19
23
Court ruled for the state on the recognition issues, then we
11:19
24
essentially would be the opposite of the Kentucky case.
11:19
25
Kentucky case is limited to recognition issues right now.
THE COURT:
though.
I don't disagree with Mr. Duncan.
You don't disagree with him?

No.
I believe that's correct.
We
If the
Well, see, that's not what I want to do,
That's my point.
MR. COURSON:
Your Honor, I haven't talked to my
clients about a potential waiver of that argument.

THE COURT:
Well, I don't want to force you to waive
My point is that I feel uncomfortable resolving some
MR. DUNCAN:
Maybe this will help, Your Honor.
If the Court did
Neither does the Court.

Let's say this.
Hypothetically, if the
The
It's
14-31037.2067
51
11:19
up on appeal in the Sixth Circuit.
11:19
August.
11:19
11:19
11:19
11:19
would have a judgment going the other way on the recognition
11:19
issue.
11:19
appealable order on that under Rule 54.
11:19
to think about it.
11:19
10
11:19
11
would argue with respect to the marriage license issue, if the
11:19
12
Court ruled for us on the recognition issue, we would submit
11:19
13
the marriage license issue.
11:19
14
have to allow same sex marriages to take place, we would submit
11:19
15
that the Court's decision in favor of the state on the
11:20
16
recognition issue would compel
11:20
17
the rationale would be, but we would probably argue that it
11:20
18
would compel a finding of the state on the second issue because
11:20
19
those issues are really more or less the same legal issues.
11:20
20
would be willing to do that on briefs and not argument.
11:20
21
don't know if that's helpful.
11:20
22
11:20
23
to move forward with adjudication of those claims immediately,
11:20
24
we would just submit that we could submit briefing on those
11:20
25
issues.
THE COURT:
It will be argued in
By the way, that's the judge I mentored,
Judge Heyburn.
MR. DUNCAN:
We would be the opposite of that.
We
Our position would be the Court could have a separate

That would be one way
What I can tell you, though, what the state
MR. COURSON:
In other words, does Louisiana
of course, I don't know what
We
I think, Your Honor, if the Court wants
14-31037.2068
52
11:20
THE COURT:
You would what?
11:20
MR. COURSON:
11:20
11:20
MR. DUNCAN:
This is on the marriage license issue.
11:20
THE COURT:
As I count them, it's the right to marry,
11:20
which is separate from the recognition, right?
11:20
issue
11:20
11:20
11:21
10
THE COURT:
11:21
11
MR. DUNCAN:
11:21
12
THE COURT:
11:21
13
as I understand it
11:21
14
speech issue.
11:21
15
MR. DUNCAN:
11:21
16
separable from these.
11:21
17
11:21
18
11:21
19
MR. SPIVEY:
11:21
20
THE COURT:
11:21
21
MR. SPIVEY:
11:21
22
marry, the license issue.
11:21
23
behalf of them.
11:21
24
THE COURT:
11:21
25
MR. SPIVEY:
Agree to a quick timeline of briefing
on those issues.
MR. DUNCAN:
The license
Well, those are the same issues, as I
understand them, Your Honor, the license and right to marry.
THE COURT:
The license and the right to marry?

I understand those to be the same issue.
All right.
Then the only pending issue
oh, no, there's the First Amendment free
That's the issue that we see as most

It's a different kind of claim.
Well, there are two issues, the license
issue and the First Amendment issue.

If I may, Your Honor.
Yes.
I have the plaintiffs on the right to
I would like to be able to speak on
Go ahead.
Up until now
14-31037.2069
11:21
THE COURT:
11:21
additional briefing?
11:21
11:21
11:21
THE COURT:
11:21
MR. SPIVEY:
11:21
THE COURT:
11:21
be.
11:21
slightly revised schedule and then we'll move forward from
11:21
10
11:21
11
11:22
12
down.
11:22
13
and I especially want to thank the public for the terrific way
11:22
14
that they were here today.
11:22
15
the other, I hope that your experience here in federal court
11:22
16
has been somewhat enlightening for all of you.
11:22
17
stress to all of you that everyone in this Court, my colleagues
11:22
18
on the bench, we take our responsibilities very seriously.
11:22
19
want to thank you all for that courtesy.
11:22
20
11:22
21
11:24
22
(The following proceedings were held in chambers.)
11:26
23
THE COURT:
11:27
24
issue and the First Amendment issue.
11:27
25
postargument briefs on equal protection or due process?
MR. SPIVEY:
Do you want briefing?
53
Do you want
If the Court is going to rule on any of
those issues, absolutely.

Would you like oral argument?
Absolutely.
All right.
That's the way it's going to
Meet me in my conference room so we can put you on a
there.
Meanwhile, this matter is under submission.

I want to thank, as I indicated
y'all sit
I want to thank counsel, I want to thank the litigants,
THE DEPUTY CLERK:
Whatever your views are, one way or
I just want to
Court is adjourned.
All rise.
* * *
Now, let's see.
We have the license

Nobody wants to file any
14-31037.2070
54
11:27
MR. COURSON:
No, Your Honor.
11:27
MR. DUNCAN:
11:27
THE COURT:
11:27
11:27
11:27
hearing a lot of the arguments, a lot of what was being argued
11:27
and a lot of what has been argued in the amicus briefs sounded
11:27
a lot like the right to marry.
11:27
on anything, this isn't a right to marriage case; this is a
11:27
10
recognition case.
11:27
11
It's certainly up to the Court what the Court feels as though
11:27
12
would be beneficial to the Court to flesh that out.
11:27
13
think a lot of amicus did address that issue.
11:27
14
said
11:28
15
THE COURT:
11:28
16
MR. SPIVEY:
11:28
17
would like the opportunity to address the right to marry per se
11:28
18
in depth, although again certainly the Court has spoken to a
11:28
19
lot of the issue in its questions today.
11:28
20
11:28
21
11:28
22
11:28
23
11:28
24
MR. SPIVEY:
Yes.
11:28
25
MR. DUNCAN:
If you would file a brief on that, let's
No.
Do you want me to invite amicus briefs on
your issues?
MR. SPIVEY:
Frankly,
If I was going to raise my hand
So I think a lot of it has been addressed.
MR. DUNCAN:
you're the only
Whatever the Court's pleasure.
Again, I
With that being
Yes, but not the litigants.

But not the litigants.
I certainly
Maybe this will be helpful.
Mr. Spivey,
sorry, Scott.
Scott is the only lawyer representing clients

with that particular claim.
Am I right?
14-31037.2071
55
11:28
say hypothetically, the state would obviously want to respond
11:28
to that.
11:28
11:28
our brief in response to his argument is going to look an awful
11:28
lot like our brief in response to their claims, but we would
11:28
want to file a brief anyway.
11:28
THE COURT:
11:28
MR. DUNCAN:
11:28
11:28
10
MR. SPIVEY:
11:28
11
see it as being distinguishable.
11:28
12
of the argument today seemed to be revolving around the issue
11:29
13
of Windsor, whether or not Windsor applied, whether or not
11:29
14
Windsor is binding, and properly the Court addressed that in
11:29
15
great depth with counsel.
11:29
16
11:29
17
historically referencing
11:29
18
by the plaintiffs today in closing, in the rebuttal, speaks to
11:29
19
the issue of whether or not the federal government has a right,
11:29
20
an interest in modifying the marriage structure as established
11:29
21
by the State of Louisiana; for example, the way that it struck
11:29
22
down the whole concept of head and master.
11:29
23
that it would sound a lot different and, accordingly, I would
11:29
24
like to have the opportunity to
11:29
25
THE COURT:
I have a feeling, Judge, full disclosure, that
Do you need oral argument?

I wouldn't ask for oral argument on that
because I would be saying the same thing I just said.

I would.
I mean, that's the thing, is I

The Court certainly
a lot
I think the issue of right to marry,

even as to the case that was cited
So I don't know
Well, what I'm going to do is this, if
14-31037.2072
both sides agree.
56
11:29
I'm going to want simultaneous
11:29
11:30
MS. HARRIS:
11:30
THE COURT:
11:30
MS. HARRIS:
11:30
THE COURT:
11:30
MR. COURSON:
11:30
schedule, Your Honor.
11:30
MR. SPIVEY:
11:30
10
full faith and credit is there
11:30
11
THE COURT:
11:30
12
11:30
13
21 days, on both issues, the right to marry issue and the
11:30
14
First Amendment issue.
11:30
15
I need oral argument, I will have another conference with you
11:31
16
and with Charles.
11:31
17
oral argument or whether I can decide on the briefs plus, of
11:31
18
course, on the basis of today's hearing, but I don't want to
11:31
19
piecemeal decide anything.
11:31
20
MR. DUNCAN:
11:31
21
THE COURT:
11:31
22
11:31
23
MS. HARRIS:
11:31
24
THE LAW CLERK:
11:31
25
THE COURT:
Do you want to enter into this?

We have the First Amendment.
Oh, you have the First Amendment.
Yes.
Let's deal with that right now.
I would like a very quick briefing
There's a question whether, Your Honor,
I haven't finished.
I haven't finished.
I want simultaneous briefing within three weeks,
If, after reading the briefs, I decide
Then we will see if we need any additional
I agree.
As I understand it, I'm not so sure
even on a Rule 54, the Fifth Circuit doesn't have to take it.
Right.
Can I just add something, Judge?
Yes.
14-31037.2073
57
11:31
11:31
it's on all the remaining issues and anything not briefed is
11:31
waived.
11:31
11:31
No, I don't want to do that.
11:31
only two issues.
11:31
11:31
11:31
11:31
10
11:31
11
11:31
12
11:31
13
THE LAW CLERK:
11:31
14
MR. SPIVEY:
11:32
15
I think that would be my argument as far as what was initially
11:32
16
briefed.
11:32
17
initial petition, and I don't think that was found in the
11:32
18
amendment.
11:32
19
11:32
20
complaint.
11:32
21
look and see what all the remaining claims are.
11:32
22
THE COURT:
11:32
23
THE LAW CLERK:
11:32
24
THE COURT:
11:32
25
MR. SPIVEY:
THE LAW CLERK:
THE COURT:
I would just advise that you add that
No, no, no.
I don't want to do that.
We all agree that these are the
MR. DUNCAN:
Do you want to bring up full faith and
MR. SPIVEY:
That was all I was trying to bring up.
credit?
I apologize, Your Honor.

THE COURT:
I didn't mean to interrupt.
Yes, I want full faith and credit
briefed.
That's all that I meant.
As to that issue, I'm not sure, because
I was speaking that I think that that was in the
THE LAW CLERK:
I believe it's in the amended
All I'm suggesting is that you guys go back and
Wait.
In what amendment?
An amended complaint.
Your amended complaint?

Yes, Your Honor.
The initial petition
14-31037.2074
58
11:32
was clearly a full faith and credit
11:32
11:32
11:32
MR. SPIVEY:
I don't think that it is, Your Honor.
11:32
MR. DUNCAN:
My understanding is that it was, which
11:32
is why we moved to dismiss it.
11:32
THE COURT:
11:32
license issue, the First Amendment issue, full faith and
11:32
credit.
11:32
10
11:32
11
11:32
12
THE COURT:
11:32
13
MR. DUNCAN:
11:32
14
THE COURT:
11:32
15
MR. DUNCAN:
Okay.
11:33
16
MS. HARRIS:
We'll work together to consolidate into
11:33
17
11:33
18
THE COURT:
11:33
19
MR. DUNCAN:
11:33
20
the First Amendment.
11:33
21
THE COURT:
11:33
22
license issue, because the right to marry, in my mind I thought
11:33
23
we were arguing that today.
11:33
24
covered before I decide anything
11:33
25
MR. DUNCAN:
THE COURT:
I remember that, but it's not in your
amended complaint?
MR. DUNCAN:
Well, I want briefing on the marriage
We are filing those at the same time,
Judge?
Simultaneous briefing.
Am I filing one brief or two?
Just one brief.
I'm filing one.
one.
Yes.
I would like one brief.
One brief on FFC, right to marry, and
Right, or what I call the marriage
Sure.
I want to be sure everything is
Sure.
14-31037.2075
59
11:33
11:33
11:33
11:33
what the caption of the brief is going to be?
11:33
be just simply a further briefing on the remaining legal issues
11:33
or is it going to be sort of an amended motion for summary
11:33
judgment or
11:33
11:33
11:34
10
11:34
11
MR. DUNCAN:
11:34
12
THE COURT:
11:34
13
THE DEPUTY CLERK:
11:34
14
THE COURT:
11:34
15
MS. HARRIS:
11:34
16
THE COURT:
11:34
17
oral argument.
11:34
18
wait.
11:34
19
MR. DUNCAN:
11:34
20
THE COURT:
11:34
21
professional and very helpful on both sides.
11:34
22
(Proceedings adjourned.)
23
* * *
THE COURT:
because I think that everyone is
entitled to a full and complete expression of the issues.

MR. DUNCAN:
THE COURT:
issues.
Judge, do you have a view of sort of

Is it going to
I've requested additional briefing on the
You can be style it "Additional Briefing Requested by
the Court."
How many pages would you like?
What's the limit, 25?
25.
25.
Do you want reply briefs?
I don't know yet.
I don't know if I want
I don't know if I want replies.
Let's just
Haven't you got enough replies?

Well, no, your submissions have been very
Thank you.
24
25
14-31037.2076
1
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60
CERTIFICATE
I, Toni Doyle Tusa, CCR, FCRR, Official Court
Reporter for the United States District Court, Eastern District
of Louisiana, certify that the foregoing is a true and correct
transcript, to the best of my ability and understanding, from
the record of proceedings in the above entitled matter.
7
8
9
10
s/ Toni Doyle Tusa

Toni Doyle Tusa, CCR, FCRR
Official Court Reporter
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amicus [6] 5/7 17/7 33/13 54/3 54/7
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add [3] 12/20 56/24 57/1
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addition [2] 9/15 15/10
among [2] 30/6 33/11
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additional [6] 6/24 48/1 53/2 56/16 59/8 analogous [1] 25/5
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address [4] 46/21 50/1 54/13 54/17
animating [1] 29/23
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addressed [4] 37/23 47/25 54/10 55/14 another [3] 19/3 47/25 56/15
1980 [2] 42/2 42/4
adjourned [2] 53/19 59/22
answer [6] 10/21 11/13 34/17 35/3
adjudicate [1] 41/6
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adjudicating [1] 41/4
any [25] 5/22 5/22 6/3 8/7 11/17 14/5
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adjudication [3] 20/2 50/9 51/23
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2006 [1] 38/19
administer [1] 35/14
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admittedly [1] 21/8
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2011 [2] 28/3 28/10
adopt [1] 28/9
anyone [1] 5/22
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anything [6] 45/21 50/15 54/9 56/19
21 [1] 56/13
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anyway [2] 43/22 55/6
248 [1] 2/6
affirmation [1] 32/12
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25 [5] 1/7 4/2 59/12 59/13 59/14
affirmative [5] 31/10 31/11 31/20 32/2 apparently [1] 45/25
2693 [1] 28/2
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appeal [2] 7/6 51/1
3
after [6] 5/3 14/25 32/11 49/16 50/2
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56/14
30 minutes [1] 6/7
51/8
again [7] 4/19 14/13 36/1 44/13 45/7
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appeals [4] 5/3 28/11 29/8 48/7
54/12 54/18
300 [1] 2/3
appearances [3] 1/12 2/1 4/7
against [5] 6/9 10/13 26/20 28/21 31/18 appellate [1] 40/8
327 [4] 46/4 46/5 47/2 47/5
age [7] 33/10 34/5 34/6 34/8 34/10
applicable [1] 19/13
4
34/14 34/23
applied [3] 7/13 25/14 55/13
aggrieved [4] 11/10 16/10 37/21 37/22 applies [6] 11/7 13/24 18/13 18/22
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basic [1] 20/8
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appreciate [3] 5/6 5/9 6/4
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build [1] 39/18
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basis [15] 7/14 13/25 14/2 16/24 16/25 building [1] 39/16
architecture [1] 21/14
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are [82]
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bunch [1] 41/2
area [3] 10/4 30/24 33/5
Baton [2] 10/23 11/2
burden [1] 41/8
arguably [3] 11/24 17/14 17/15
Baton Rouge [2] 10/23 11/2
but [43] 5/21 5/22 8/12 10/2 10/16
argue [7] 11/21 11/22 13/8 22/1 25/13 be [62]
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Bear [1] 19/2
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argued [7] 46/13 49/11 49/16 49/24
Beauregard [2] 4/17 4/21
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because [26] 9/7 9/19 12/3 16/13 17/10 34/20 35/14 35/18 37/22 39/3 39/15
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c/w [1] 1/5
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arguments [3] 31/17 36/22 54/6
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California [1] 17/8
Arizona [1] 31/4
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call [2] 4/4 58/21
around [8] 10/19 16/15 18/13 23/18
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before [11] 1/10 4/23 4/24 11/4 11/10 called [1] 28/17
came [2] 10/24 27/12
as [57] 5/14 5/14 5/14 7/9 8/1 9/2 9/8
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Camp [1] 1/20
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begin [2] 4/23 6/6
can [20] 9/11 11/21 11/22 21/2 22/1
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being [9] 9/24 10/9 11/10 17/3 38/20
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28/9 28/10 29/23 31/5 32/11 35/18
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56/24 59/9
36/3 37/24 37/24 38/21 39/15 46/9
believe [9] 7/11 11/2 34/7 46/5 47/1
can't
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cannot [4] 14/14 26/19 37/8 39/20
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bench [1] 53/18
capital [1] 32/24
54/11 55/11 55/17 55/20 56/21 57/14 beneficial [1] 54/12
caption [1] 59/4
57/15 57/15
benefit [1] 46/2
care [1] 38/12
aside [3] 11/14 12/5 13/3
benefits [1] 37/13
careful [2] 25/17 35/10
ask [6] 9/18 14/8 18/25 27/9 43/15
best [1] 60/5
carefully [3] 34/3 34/18 35/19
55/8
better [2] 17/11 29/17
Carondelet [1] 1/17
asked [4] 10/22 30/5 40/9 49/1
between [6] 14/3 16/18 22/11 22/17
carry [1] 27/22
asking [2] 16/3 38/24
36/2 42/12
carving [1] 8/25
assert [2] 9/7 9/11
bias [2] 21/4 27/16
case [52] 4/4 5/14 7/3 7/5 7/9 8/6
asserted [2] 34/4 35/23
big [2] 18/21 18/21
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assessment [1] 19/21
binding [2] 43/19 55/14
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assume [2] 26/18 27/12
birth [3] 9/4 9/9 9/10
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assuming [3] 12/22 30/16 33/21
bit [1] 29/15
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at [22] 4/13 5/4 5/7 7/20 7/24 9/4 12/13 black [1] 39/21
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Blackmun [1] 33/1
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26/9 27/5 30/17 31/5 35/16 39/12
Blanchard [1] 4/11
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blessed [1] 40/4
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attention [2] 5/17 39/18
bodies [1] 19/19
cases
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attitude [1] 19/10
Bond [2] 29/3 39/25
12/3 12/18 13/16 16/16 20/23 21/2
August [1] 51/2
bookend [1] 40/11
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aunt [5] 15/2 16/21 30/8 33/22 42/23
Bossier [1] 2/7
35/9 35/18 40/6 46/4 46/6 46/7 46/9
aunt-niece [3] 15/2 16/21 30/8
both [13] 5/2 6/2 7/17 11/8 28/4 36/5
author [4] 20/12 29/1 32/10 39/22
43/22 46/6 46/7 47/4 56/1 56/13 59/21 46/17 47/22
cases: [1] 35/17
authority [12] 9/25 23/24 24/21 26/2
Bowers [1] 32/17
cases: Glucksberg [1] 35/17
26/7 26/17 27/2 27/4 27/5 30/2 39/9
Brettner [1] 9/4
cautious [1] 37/18
40/15
brief [20] 4/23 5/12 6/23 17/6 17/7
CCR [3] 2/8 60/2 60/9
aware [2] 18/12 21/20
28/23 31/5 41/12 43/22 45/19 46/1
celebrating [1] 45/9
awful [1] 55/4
54/25 55/4 55/5 55/6 58/13 58/14
celebration [1] 6/19
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central [1] 25/11
briefed
[6]
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back [5] 4/18 27/9 27/15 47/8 57/20
centuries [1] 36/5
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certain [2] 35/19 35/20
briefing [15] 47/11 47/12 47/13 48/1
baiting [1] 21/4
certainly [13] 7/13 7/19 15/4 15/8 19/5
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banc [1] 31/21
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certificate [3] 9/9 9/10 60/1
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bans [1] 6/19
certify [1] 60/4
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bare [1] 18/15
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conception [1] 28/14

couple [3] 6/22 15/20 15/21
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concern [2] 46/1 48/11
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course [7] 15/10 23/3 24/6 43/18 47/2
chance [2] 43/23 45/20
concerns [1] 39/13
51/16 56/18
change: [1] 20/5
conclude [2] 5/18 19/17
COURSON [6] 1/14 4/8 30/5 32/15
change: mistaken [1] 20/5
concluded [1] 23/4
48/14 49/18
changing [1] 6/25
conclusions [2] 30/19 30/23
court [104]
characterization [1] 33/18
concrete [1] 9/15
Court's [6] 5/7 6/17 49/3 49/22 51/15
charge [1] 6/1
condemn [1] 11/19
54/5
Charles [1] 56/16
condemnation [2] 13/14 21/6
courtesy [1] 53/19
Chief [1] 29/16
condemned [1] 27/15
courthouse [1] 5/25
child [4] 9/7 15/22 17/5 17/13
condemns [2] 21/4 21/5
courtroom [2] 5/22 5/24
children's [1] 30/25
conduct [1] 5/23
courts [7] 5/1 6/18 21/24 24/10 37/7
choice [3] 17/11 28/21 32/22
conference [4] 3/7 47/15 53/8 56/15
41/5 41/8
choices [5] 28/24 28/25 34/9 34/10
confidence [1] 20/9
cousin [6] 14/16 30/9 45/9 45/11 45/12
40/13
confined [1] 23/5
45/15
choose [3] 12/25 34/19 49/2
conflicting [1] 6/1
cousins [3] 33/24 34/24 34/25
choosing [2] 13/3 14/14
Congress' [1] 7/21
covered [1] 58/24
chose [1] 13/5
cons [1] 28/18
created [1] 44/25
chosen [1] 19/11
consanguinity [2] 33/11 34/23
credit [9] 26/11 47/4 48/23 49/4 56/10
Circuit [4] 7/6 31/21 51/1 56/22
consensual [1] 42/12
57/8 57/11 58/1 58/9
Circuit's [1] 7/7
consensus [8] 15/16 36/11 37/4 37/6
credits [2] 30/22 31/4
citation [1] 47/9
37/19 43/13 44/2 44/17
criminal [1] 6/1
cite [5] 8/3 20/22 24/7 38/18 41/9
consequences [2] 6/3 16/1
criminalize [1] 42/12
cited [4] 6/24 6/24 11/3 55/17
consideration [1] 25/18
Cruzan [1] 35/17
cites [2] 25/1 25/1
considered [1] 28/4
crystal [1] 23/25
citing [2] 20/23 43/17
consistent [1] 40/19
CV [3] 1/4 1/5 1/5
citizens [3] 6/10 12/18 36/10
consolidate [1] 58/16
D
City [1] 2/7
constant [2] 44/3 44/19
D.C [1] 2/4
civil [5] 4/5 6/2 11/18 27/10 41/20
constitution [13] 11/19 11/21 12/4
daily [2] 44/3 44/19
claim [9] 46/11 47/19 48/14 49/4 49/5 19/16 21/3 21/4 26/11 31/5 31/21
DALTON [2] 1/14 4/8
49/17 50/9 52/16 54/23
35/12 38/3 38/12 39/25
claims [8] 7/21 46/15 46/18 47/18 48/8 constitutional [34] 5/21 6/12 10/2 10/8 daughter [5] 14/17 15/2 15/9 16/20
33/23
51/23 55/5 57/21
10/17 11/1 11/12 13/13 14/15 14/20
Dauphine
[1] 1/23
class [2] 6/10 17/3
14/22 14/25 16/1 16/7 16/12 16/14
day [2] 7/20 7/24
classification [1] 37/12
16/18 16/19 18/16 20/1 20/16 20/21
classifications [2] 7/8 7/12
21/14 21/25 24/23 24/24 25/10 28/12 days [2] 30/22 56/13
deal [4] 9/19 31/14 50/3 56/6
clause [5] 6/13 26/11 30/17 31/22
33/16 36/10 38/24 43/1 43/5 49/12
dealt [2] 42/17 47/2
34/21
constitutionality [1] 42/17
death [1] 33/5
clear [1] 23/25
constitutionally [3] 10/15 26/20 34/8
debate [3] 32/1 32/4 38/13
clearly [1] 58/1
contact [2] 44/3 44/19
debated [1] 38/14
client [1] 8/17
contempt [1] 6/1
debates [2] 32/5 32/6
clients [7] 8/20 9/2 9/3 11/9 43/9 50/13 contention [1] 19/20
debating [1] 31/9
54/22
contest [1] 5/2
decency [4] 19/20 32/23 33/7 44/5
clients' [4] 9/17 14/23 43/8 45/5
context [6] 10/17 10/18 11/1 20/15
decide [15] 5/14 22/5 22/24 23/2 29/25
close [1] 5/11
21/8 44/7
33/15 40/15 43/19 46/2 47/22 50/2
closing [1] 55/18
contexts [1] 16/20
56/14 56/17 56/19 58/24
collateral [1] 11/6
continue [1] 5/3
decided [3] 23/1 42/1 42/2
colleagues [1] 53/17
continues [1] 42/11
collection [1] 19/6
decides [2] 14/2 48/12
contradictory [1] 8/13
decision [9] 6/17 7/25 28/3 28/4 37/5
come [7] 18/2 18/4 30/21 30/23 31/6
contrary [2] 8/23 19/17
37/6 39/16 49/23 51/15
36/10 37/9
cooperation [1] 6/4
decisions
[8] 5/13 7/1 22/6 22/7 22/7
comes [1] 16/14
core [2] 25/3 27/4
22/9 38/18 39/15
coming [1] 30/19
Corporation [1] 1/22
decisis [1] 19/7
comment [3] 18/10 42/16 44/4
correct [8] 23/19 26/23 26/23 36/14
declared [2] 20/18 42/13
comments [4] 4/24 20/10 23/11 32/20 46/5 46/9 50/6 60/4
decorum [1] 5/10
commitment [1] 34/12
corrected [1] 20/5
DeCuir [1] 4/14
common [3] 31/7 46/6 46/7
correctly [6] 11/20 12/4 16/3 22/14
deemed [1] 36/5
commonly [1] 9/10
32/21 35/16
community [4] 30/12 41/22 44/3 44/18 could [12] 10/13 15/1 15/6 15/8 15/11 deeply [3] 34/18 34/20 35/24
community's [1] 28/4
22/23 41/21 43/1 43/3 43/4 51/7 51/24 defendant [1] 9/2
defendants [5] 2/2 2/5 4/13 8/19 50/8
comparable [1] 15/12
couldn't [2] 23/12 30/2
comparison [1] 15/13
counsel [9] 4/3 4/7 4/13 4/14 4/22 5/5 defense [1] 47/8
defer [1] 41/3
compel [2] 51/16 51/18
6/6 53/12 55/15
deference [1] 26/6
complaint [4] 57/20 57/23 57/24 58/3 count [4] 23/17 28/10 37/25 52/5
define [13] 14/9 16/6 16/13 16/17
complete [1] 59/2
count 11 [1] 23/17
23/24 24/22 26/3 26/3 27/3 34/4 35/18
computer [1] 2/14
counted [2] 6/21 36/19
36/20 39/9
computer-aided [1] 2/14
country [7] 10/19 18/13 23/18 25/8
defined
[2] 10/9 10/18
concept [2] 14/9 55/22
37/8 38/20 38/23
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emotions [1] 30/24

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dissents [1] 22/9
defining [4] 10/1 10/13 30/7 35/7
empowered [1] 34/9
distinct [3] 49/17 49/17 49/19
definition [5] 9/23 26/21 27/7 36/3
en [1] 31/21
distinguish [1] 31/13
36/19
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distinguishable [1] 55/11
degree [1] 34/23
end [3] 7/20 7/24 31/16
district [11] 1/1 1/2 1/11 6/18 16/17
deliberation [1] 28/18
ended [1] 24/13
22/7 22/16 23/17 37/7 60/3 60/3
demeaned [1] 24/15
enduring [1] 20/3
do [52] 5/15 6/7 10/15 11/17 13/19
demeaning [3] 32/7 32/9 35/5
enjoy [1] 12/8
16/6 17/19 19/19 19/23 21/16 26/22
democracy [1] 19/9
enlightened [1] 45/18
26/25 30/7 31/12 31/14 32/9 32/15
democratic [17] 15/1 20/4 20/9 27/22
enlightening [1] 53/16
33/16 34/19 35/1 36/22 37/19 37/20
31/25 32/6 32/8 32/9 32/12 32/13
enough [2] 39/18 59/19
37/25 39/11 39/21 40/14 41/2 43/6
36/13 36/16 37/24 41/4 42/6 44/6 45/4 45/1 45/2 45/4 45/23 46/15 47/11
enter [4] 4/7 35/2 35/6 56/2
demonstrations [1] 5/16
47/13 47/13 47/14 47/14 50/10 51/20 entirety [1] 28/12
denying [1] 18/15
entitled [2] 59/2 60/6
53/1 53/1 54/3 55/7 55/25 56/2 57/4
Department [1] 4/14
entitlement [1] 46/25
57/5 57/7 59/3 59/15
departure [1] 26/4
equal [11] 6/13 7/19 7/24 16/4 17/21
Docket [1] 1/4
depends [1] 49/22
24/12 24/18 31/22 46/6 46/10 53/25
document [1] 9/11
depth [2] 54/18 55/15
equality [10] 10/7 18/11 23/12 27/15
does [12] 16/11 18/12 21/8 23/10
described [1] 34/18
27/25 28/7 28/15 36/11 38/10 47/16
28/19 30/12 35/15 38/10 38/11 45/9
describing [1] 35/11
equation [1] 12/21
50/21 51/13
description [1] 35/23
especially [1] 53/13
doesn't [4] 13/12 30/16 34/13 56/22
deserve [1] 6/2
doing [5] 10/16 26/25 38/16 39/6 39/16 ESQ [9] 1/14 1/15 1/15 1/16 1/16 1/19
desire [3] 7/23 18/15 20/24
DOMA [5] 24/16 26/3 26/5 26/12 28/23 1/22 2/3 2/6
despite [1] 42/13
essential [5] 23/24 24/21 27/2 36/3
domestic [4] 7/22 10/3 27/4 37/15
destiny [1] 29/6
39/9
don't [44] 8/7 8/10 11/20 11/22 14/5
detailing [1] 24/21
16/9 17/2 18/1 19/3 19/24 20/15 21/1 essentially [4] 10/22 19/22 22/8 50/24
determinations [1] 33/5
21/11 21/25 23/22 25/25 28/22 29/11 established [1] 55/20
Devin [1] 9/2
Establishment [1] 30/16
32/11 34/24 37/5 39/10 41/1 44/7
dichotomous [1] 8/16
estate [1] 23/7
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did [16] 12/14 24/20 28/9 29/6 40/17
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25/6 31/7 33/6 49/11 55/17 56/22
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dynamics [4] 37/3 43/25 44/15 44/16
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misreading [1] 23/21
leads [2] 5/18 36/18
make [8] 20/25 22/23 34/9 34/15 37/6 missed [1] 6/22
least [2] 23/16 39/12
40/24 48/9 48/10
Missouri [1] 12/14
leave [1] 13/18
making [1] 33/4
mistaken [2] 20/5 39/5
leeway [1] 19/13
male [1] 12/11
mix [1] 31/1
left [1] 41/1
male-female [1] 12/11
modifying [1] 55/20
man [3] 9/5 36/2 38/7
legal [2] 51/19 59/5
moment [1] 11/14
legislate [1] 29/8
many [9] 4/25 5/6 13/16 18/12 18/13
money [6] 15/22 15/25 16/22 17/10
29/2 34/25 39/7 59/11
legislative [6] 19/10 19/19 19/22 20/3
17/12 17/16
28/17 32/22
marital [5] 8/21 23/25 24/22 26/3 27/3 months [2] 5/1 32/11
legitimate [2] 14/15 18/5
marriage [73]
moot [1] 47/20
legs [1] 48/16
marriages [13] 6/20 9/17 14/16 14/23 more [6] 23/12 25/22 31/11 35/19
18/16 21/8 21/9 23/6 23/6 24/15 45/8
lesbian [1] 8/15
37/12 51/19
lesbians [6] 13/2 13/17 18/15 22/21
46/12 51/14
morning [1] 4/3
married [10] 6/11 6/16 9/1 9/4 15/20
42/5 42/12
most [9] 19/8 19/18 21/22 21/22 24/7
33/16 42/24 43/9 45/11 45/12
LESLI [2] 1/16 4/9
30/22 36/3 38/18 52/15
marry [25] 6/16 13/3 13/5 14/13 28/25 motion [2] 48/10 59/6
less [3] 19/5 19/5 51/19
34/1 34/2 34/18 34/25 43/2 43/12 45/6 move [5] 17/6 17/7 17/8 51/23 53/9
let [14] 5/11 9/18 10/11 10/21 11/17
46/12 46/20 46/24 52/5 52/9 52/10
14/8 20/10 23/13 24/10 27/9 42/6
moved [1] 58/6
52/22 54/8 54/17 55/16 56/13 58/19
43/15 47/8 48/25
movie [1] 18/22
58/22
let's [9] 15/18 26/18 27/11 34/5 50/22
Mr. [10] 13/22 18/22 23/13 30/5 32/15
marrying [1] 15/5
53/23 54/25 56/6 59/17
45/19 48/14 49/18 50/4 54/20
license [13] 47/1 47/5 51/11 51/13 52/4 MARTIN [1] 1/10
Mr. Courson [4] 30/5 32/15 48/14
master [3] 41/19 41/21 55/22
52/6 52/9 52/10 52/17 52/22 53/23
49/18
match [1] 8/24
58/8 58/22
Mr. Duncan [5] 13/22 18/22 23/13
matter [8] 5/15 5/16 21/13 21/21 22/12 45/19 50/4
light [1] 7/6
30/13 53/10 60/6
like [22] 8/4 8/12 11/15 12/18 13/20
Mr. Spivey [1] 54/20
MAURINE [2] 1/16 4/9
34/22 38/8 38/14 38/15 39/25 43/22
Ms. [2] 18/21 20/13
45/9 48/15 52/22 53/5 54/8 54/17 55/5 may [14] 6/6 6/8 10/14 10/15 14/19
Ms. Harris [2] 18/21 20/13
18/6 20/5 23/15 28/25 34/19 34/22
55/24 56/7 58/18 59/11
much [3] 4/22 35/19 49/13
48/3 49/2 52/19
likely [1] 19/18
must [3] 10/1 19/10 19/17
maybe [10] 6/22 11/7 15/21 17/9 21/9 muster [4] 14/19 15/6 43/1 43/4
limit [1] 59/12
23/16 23/17 49/13 50/18 54/20
limitation [1] 36/4
mustered [5] 6/12 14/21 15/11 43/7
me [34] 4/19 5/11 5/18 9/18 10/11
limited [4] 23/1 27/6 30/2 50/25
43/11
10/21 11/17 14/8 14/9 16/6 16/6 16/18 my [43] 8/17 8/20 9/2 9/3 9/17 11/7
line [1] 34/3
18/19 19/2 20/7 20/10 20/11 20/23
lines [1] 25/7
13/12 14/23 16/13 17/15 17/17 28/10
21/17 23/13 24/8 24/10 27/9 32/7
litigants [5] 23/6 47/23 53/12 54/15
28/23 32/16 33/2 33/9 33/17 33/20
54/16
36/18 40/9 43/15 44/13 45/22 46/1
34/24 39/4 40/9 43/8 43/9 43/18 45/5
47/8 48/25 53/8 54/3
little [3] 7/17 7/17 29/15
45/11 45/24 46/9 46/14 47/8 47/21
mean [5] 22/5 38/10 43/12 55/10 57/10 48/2 49/20 50/11 50/12 50/15 53/8
lived [1] 17/16
meaning [11] 10/7 18/11 23/11 24/13
LLC [3] 1/14 1/19 2/5
53/17 54/8 57/15 58/5 58/22 60/5
24/14 25/3 25/11 27/14 27/25 28/6
Lochner [2] 38/5 38/6
N
32/13
long [6] 5/3 8/2 10/4 11/8 21/2 34/3
means [6] 9/20 22/2 22/2 22/3 24/20
name [3] 9/8 41/11 41/15
long-winded [1] 11/8
named [1] 9/2
look [18] 16/15 24/14 24/25 26/5 27/6 29/13
meant [1] 57/13
nation [2] 30/13 38/1
27/19 28/8 28/13 29/18 31/24 34/11
national [4] 4/25 34/19 35/4 35/8
Meanwhile [1] 53/10
35/10 35/16 36/22 39/8 39/17 55/4
measurable [1] 19/5
necessarily [1] 19/3
57/21
mechanical [1] 2/14
necessary [2] 36/6 48/10
looking [2] 20/13 39/6
need [9] 8/10 14/3 27/22 29/25 44/5
media [1] 5/17
lose [1] 32/4
47/11 55/7 56/15 56/16
Meet [1] 53/8
lot [12] 33/12 35/25 54/6 54/6 54/7
needed [2] 33/4 41/2
members [3] 35/12 44/2 44/18
54/8 54/10 54/13 54/19 55/5 55/11
needs [2] 37/23 47/9
Memphis [1] 20/24
55/23
Neither [1] 50/21
mention [1] 7/3
loud [1] 11/7
Nelson [1] 11/3
LOUISIANA [32] 1/2 1/17 1/20 1/23 2/7 mentored [3] 24/3 24/6 51/3
nephew [2] 15/2 33/24
2/9 4/14 5/9 6/12 8/13 8/23 9/1 10/15 merit [1] 20/3
Nevada [6] 7/4 7/6 10/23 22/15 22/20
message [2] 27/22 33/19
14/20 14/24 17/8 21/9 22/16 26/24
14-31037.2084
one's [1] 14/13

partner [1] 18/19
only
[10]
9/10
35/21
47/2
47/6
47/22
parts [1] Page
26/1 68 of 72
Nevada...
22/22
47/23 52/12 54/21 54/22 57/6
passed [2] 15/18 39/14
never [1] 41/5
open [1] 24/13
passing [1] 24/16
nevertheless [1] 11/12
open-ended [1] 24/13
peace [1] 38/1
new [26] 1/17 1/20 1/23 2/9 10/13 23/6 opinion [12] 5/2 9/21 19/21 23/5 27/14 penalty [1] 33/5
26/22 28/2 28/4 28/9 28/11 28/13 29/6 28/10 31/24 36/8 38/19 39/11 40/14
pending [6] 46/10 46/23 47/1 47/7
29/7 29/7 29/7 29/8 34/7 34/13 36/9
44/12
47/25 52/12
37/24 38/19 44/21 44/25 45/1 45/2
opinions [6] 25/24 29/2 31/11 39/7 39/7 Pennsylvania [2] 7/1 7/2
New Hampshire [2] 34/7 34/13
39/13
people [19] 22/3 22/4 24/7 24/15 28/13
New York [16] 10/13 23/6 26/22 28/4 opportunity [2] 54/17 55/24
29/5 31/9 31/18 33/13 35/5 35/13
28/9 28/11 28/13 29/6 29/8 36/9 37/24 opposite [2] 50/24 51/5
35/14 36/3 38/4 38/9 38/9 38/13 38/14
38/19 44/21 44/25 45/1 45/2
or [55] 5/16 5/17 5/17 6/19 9/20 10/14 38/15
New York's [1] 28/2
10/19 10/25 11/7 14/1 14/17 15/2 15/2 people's [1] 19/11
niece [5] 15/2 16/21 30/8 33/22 42/23 15/21 15/23 16/21 16/21 17/5 21/11
per [1] 54/17
night [1] 25/21
21/22 21/22 22/22 28/9 28/10 30/1
per se [1] 54/17
Ninth [2] 7/6 7/7
30/12 30/13 30/13 30/17 33/23 33/23 percent [1] 17/10
Ninth Circuit's [1] 7/7
33/24 34/14 34/14 36/19 38/5 43/20
perfected [1] 20/6
no [53] 5/2 5/15 5/16 5/21 8/9 8/12
44/5 47/13 47/14 47/25 48/1 50/16
perfectly [1] 26/2
11/5 15/12 16/10 16/10 19/5 21/6
50/16 51/19 53/14 53/25 55/13 55/13 perhaps [2] 6/1 49/11
21/21 22/10 22/12 22/12 22/22 24/2
55/19 56/17 58/13 58/21 59/6 59/7
permanence [3] 20/3 33/15 33/22
24/4 24/14 25/2 26/9 33/8 34/1 34/17 oral [11] 1/10 47/13 47/14 48/1 49/11 permissible [2] 34/6 34/23
34/18 34/20 35/3 36/2 37/17 38/9
53/5 55/7 55/8 56/15 56/17 59/17
permission [1] 41/22
43/11 44/23 45/23 46/4 46/4 46/5
order [5] 48/9 48/11 49/24 50/2 51/8
permitted [1] 43/2
46/10 46/18 46/24 46/25 47/10 48/20 Oregon [2] 7/1 7/3
permitting [1] 15/18
50/6 50/19 52/13 54/1 54/2 57/4 57/4 orientation [6] 6/10 7/8 7/12 13/10 17/1 Perque [3] 1/19 1/19 4/10
57/4 57/5 59/20
26/15
Perry [1] 40/6
No. [3] 47/2 47/4 47/5
original [1] 6/23
person [7] 5/24 6/11 12/25 13/3 13/5
No. 14-327 [2] 47/2 47/5
Orleans [4] 1/17 1/20 1/23 2/9
14/13 34/15
No. 14-97 [1] 47/4
other [34] 6/18 6/21 10/19 10/20 11/23 personal [2] 19/15 34/12
Nobody [1] 53/24
13/2 13/9 13/10 14/20 15/5 16/16
personalizing [1] 14/8
none [3] 7/3 14/6 43/13
16/20 18/13 21/10 21/11 22/8 22/23
persons [2] 10/2 10/8
normal [1] 26/6
24/10 29/24 34/13 37/25 42/9 44/3
perspective [2] 28/5 29/7
normative [1] 22/4
44/4 44/19 44/20 48/12 48/24 49/13
petition [2] 57/17 57/25
not [70]
50/16 50/17 51/6 51/13 53/15
petitioners' [1] 19/17
note [1] 36/20
otherwise [1] 35/11
phrase [1] 36/19
noted [3] 9/9 13/1 34/6
Otter [1] 13/1
piece [1] 29/12
notion [1] 36/24
our [22] 6/23 22/19 26/10 31/5 31/5
piecemeal [3] 46/2 47/22 56/19
notions [2] 32/23 36/11
32/4 34/19 35/3 35/7 35/21 38/1 38/3 piecemealing [1] 48/5
now [24] 6/18 13/19 18/18 20/13 24/19 38/11 39/16 39/25 48/13 48/22 49/25 Pigman [1] 1/14
28/1 28/8 29/24 30/24 31/4 33/10 34/8 51/7 53/18 55/4 55/5
place [1] 51/14
34/24 36/7 38/16 44/21 44/21 45/17
out [23] 8/14 8/16 8/25 11/7 12/1 15/1 places [1] 31/2
47/8 48/1 50/25 52/25 53/23 56/6
21/16 22/9 25/1 25/8 26/5 27/22 27/23 plaintiff [1] 17/21
number [2] 6/25 48/6
28/8 31/3 34/7 35/19 35/21 38/23
plaintiffs [21] 1/14 1/19 1/22 4/9 4/11
NW [1] 2/3
39/11 42/6 46/11 54/12
5/8 11/9 18/3 24/11 25/6 25/12 26/13
out-of-state [1] 46/11
29/20 31/13 31/15 37/7 37/20 41/6
O
outbursts
[2]
5/21
6/3
47/18 52/21 55/18
O'Connor [1] 12/7
over
[4]
26/17
30/2
31/10
36/20
plaintiffs'
[1] 6/14
O'Scannlain [1] 25/20
overlap
[1]
46/16
play
[2]
30/20
42/6
obligation [1] 41/6
override [1] 40/12
played [1] 15/1
observe [1] 5/19
overriding [1] 32/22
please [5] 4/4 4/23 6/8 19/2 23/15
observer [1] 5/23
own
[4]
16/14
29/6
32/23
48/16
pleasure [1] 54/5
obviously [2] 4/24 55/1
Plessy [1] 27/11
P
occasion [1] 18/19
PLLC [1] 2/2
off [2] 33/4 34/24
page [2] 3/2 44/12
plus [1] 56/17
offender [1] 42/18
page 19 [1] 44/12
point [12] 5/11 13/12 21/16 34/23
offered [2] 14/7 29/15
pages [5] 23/23 24/20 27/1 36/19
35/21 37/8 47/21 48/2 48/13 49/20
offers [1] 7/17
59/11
50/11 50/15
Office [1] 1/19
papers [2] 7/3 33/13
pointed
[5] 22/9 25/1 25/8 27/23 34/7
Offices [1] 2/5
paragraphs [1] 30/1
points
[2]
33/25 40/25
Official [3] 2/8 60/2 60/10
parameters [1] 16/7
policies
[1]
19/14
oh [4] 44/10 49/13 52/13 56/4
paraphrasing [2] 29/5 31/25
policy
[2]
33/5
34/10
okay [5] 15/19 36/23 48/5 49/9 58/15 parent [10] 9/8 9/11 15/21 15/21 15/21
politically [2] 7/23 22/21
old [2] 34/12 34/19
15/23 17/4 17/9 17/13 17/14
politics [1] 42/16
Oliver [1] 38/3
parental [3] 6/16 9/7 9/12
popular [1] 19/21
on [86]
parents [1] 30/25
position [2] 49/16 51/7
one [26] 5/20 8/14 8/19 15/21 19/3
part [3] 30/22 35/12 38/21
positive [1] 36/23
19/17 22/22 24/3 32/2 36/21 38/17
particular [4] 34/4 42/5 42/7 54/23
possible [1] 5/15
39/13 41/10 43/15 46/17 47/25 50/16 parties [1] 5/13
postargument [1] 53/25
50/16 51/8 53/14 58/13 58/14 58/15
partly [1] 45/24
potential [1] 50/13
58/17 58/18 58/19
14-31037.2085
33/25 34/2 35/1 35/5 35/6 35/7 35/8

regarding [3] 27/14 41/19 46/11
37/17
38/9
40/5
40/15
43/15
45/3
47/8
regime [1]
8/15 69 of 72
Case
Page
Powell's
[1] 2:13-cv-05090-MLCF-ALC
32/25
56/9
regimes: [1] 8/14
power [2] 7/22 40/5
questions [5] 30/4 33/20 35/7 45/22
regimes: one [1] 8/14
powerful [2] 22/21 31/24
54/19
registrar [3] 9/3 9/6 9/8
powers [1] 19/8
quick [3] 40/25 52/2 56/7
registration [1] 42/18
Poydras [1] 2/9
regulating [1] 10/1
quickly [1] 8/4
pre [1] 7/9
regulation [3] 9/24 10/3 14/3
quite [3] 11/18 12/4 43/20
pre-Windsor [1] 7/9
regulations [1] 14/21
quotations [1] 39/8
precedent [1] 18/12
quote [5] 20/15 36/1 36/21 44/1 44/13 Rehnquist [1] 33/1
precise [1] 11/4
reinforces [1] 26/10
quote/unquote [1] 36/21
preference [2] 19/15 49/22
rejected [1] 44/24
quoted [3] 28/22 29/3 35/25
preferences [1] 35/11
relate [1] 33/21
quotes [2] 18/24 19/2
prejudice [3] 13/6 21/5 47/20
relation [4] 23/25 24/22 26/3 27/3
quoting [1] 9/22
Presbyterian [2] 15/23 17/16
relations [4] 7/22 10/3 27/4 37/16
R
presently [1] 49/8
relationship [4] 33/14 33/21 35/2 35/6
preserving [1] 29/4
R.S [1] 8/23
relatives [1] 15/5
race [12] 12/3 13/4 20/23 21/1 21/4
pressing [1] 18/9
relaxed [1] 21/22
pretty [2] 25/15 38/23
21/4 21/5 21/5 27/12 27/13 27/16
reliance [1] 7/21
27/20
previously [1] 22/15
relied [1] 49/13
principles [1] 19/7
race-based [1] 12/3
religion [1] 31/1
racial [5] 11/20 13/6 25/2 25/9 36/25
prior [1] 22/6
religious [1] 30/20
prisoners [1] 12/8
raise [3] 48/25 49/1 54/8
rely [1] 12/3
probably [6] 15/1 32/17 34/25 38/3
raised [1] 48/24
remain [1] 6/16
38/5 51/17
rancor [1] 32/6
remainder [1] 50/3
rational [10] 7/14 13/25 14/2 14/3
problems [2] 15/5 15/9
remaining [3] 57/2 57/21 59/5
proceed [1] 50/8
16/24 17/24 18/4 22/3 25/13 25/19
remarkable [3] 38/17 39/6 39/20
rationale [7] 15/12 23/9 24/12 29/23
proceeding [1] 48/17
remember [5] 23/3 29/1 40/6 43/8 58/2
40/19 43/12 51/17
proceedings [6] 2/14 4/1 5/19 53/22
remembering [1] 32/21
rationales [6] 8/5 13/21 13/23 14/6
59/22 60/6
remind [4] 8/18 9/13 42/16 45/7
process [32] 5/4 6/15 7/20 7/25 12/23 15/15 43/13
reminded [1] 17/6
14/1 15/1 16/5 20/4 20/9 24/12 27/22 reach [1] 49/2
reminder [1] 5/18
react [1] 18/25
28/17 31/25 32/7 32/8 32/9 32/12
remiss [1] 9/13
reaction [4] 30/4 32/19 33/2 33/9
32/13 34/20 35/9 35/13 36/13 36/16
remove [1] 32/6
37/24 38/12 41/4 42/6 44/6 45/4 46/7 read [10] 5/12 16/16 18/24 19/15 20/15 removed [1] 5/24
22/8 26/13 32/11 32/20 44/13
53/25
renders [1] 48/8
reading [9] 18/24 23/22 24/9 32/14
procreation [2] 15/16 43/13
replies [2] 59/17 59/19
32/15 36/7 36/8 39/5 56/14
professional [3] 1/22 5/6 59/21
reply [2] 6/24 59/15
really [4] 25/15 29/11 37/6 51/19
prohibit [2] 14/22 15/1
report [1] 10/24
realm [1] 9/25
prohibited [3] 10/16 13/6 26/25
Reporter [3] 2/8 60/3 60/10
reason [1] 35/10
prohibiting [1] 15/24
reports [1] 24/21
reasons [2] 18/6 21/19
properly [3] 10/9 23/23 55/14
representatives [2] 5/9 19/11
rebuttal [2] 40/25 55/18
property [1] 41/22
representing [1] 54/22
received [2] 6/25 17/4
prophecy [1] 40/5
represents [1] 18/19
receiving [2] 15/22 17/9
proposed [1] 35/22
republican [1] 38/12
recent [2] 7/1 31/3
pros [1] 28/18
requested [3] 48/2 59/8 59/9
recognition [19] 6/9 6/19 8/14 14/22
protect [1] 41/24
require [2] 19/21 48/16
46/11 46/15 46/25 47/2 47/5 47/6
protected [1] 17/2
requirements [1] 33/11
47/18 49/17 50/23 50/25 51/6 51/12
protection [13] 6/13 7/19 7/25 16/4
requires [1] 8/24
51/16 52/6 54/10
17/21 20/16 20/21 24/12 24/18 31/22
requiring [1] 8/20
46/6 46/11 53/25
recognize [5] 5/8 9/17 28/9 35/15 37/14 resolving [1] 50/15
recognized [5] 8/1 9/6 14/12 31/17
protests [1] 5/16
respect [6] 6/2 10/2 31/7 36/17 38/20
37/13
provides [1] 19/13
51/11
recognizes [3] 37/10 37/11 45/8
province [1] 10/5
respecting [2] 44/2 44/18
recognizing [4] 25/10 33/4 37/9 43/8
provision [1] 19/13
respond [6] 13/16 43/23 45/20 47/9
recommendations [1] 10/25
public [8] 15/19 15/20 15/25 16/22
48/3 55/1
record [3] 46/3 49/7 60/6
17/10 30/5 47/23 53/13
response [4] 37/10 43/22 55/4 55/5
recorded [1] 2/14
public's [3] 6/4 19/10 19/19
responsibilities [1] 53/18
referencing [1] 55/17
punishment [1] 32/24
responsibility [2] 37/15 43/18
referenda [1] 19/19
pure [1] 30/3
responsiveness [1] 20/4
referring [1] 11/15
purely [1] 29/25
restrained [1] 5/10
refers [1] 10/6
purposes [3] 27/8 27/8 37/12
restraint [3] 19/8 21/14 35/9
put [7] 8/6 13/23 15/15 19/3 24/10 37/2 refill [1] 41/2
restrict [1] 14/14
refinements [1] 20/6
53/8
result [4] 17/25 18/2 19/21 42/7
reflect [1] 19/18
putting [3] 11/14 12/5 13/3
resulted [1] 25/9
reflects [2] 20/8 28/3
results [1] 16/11
Q
refusal [1] 9/16
return [2] 8/25 36/13
qualify [1] 18/9
refuse [1] 43/12
returns [1] 8/21
quarrel [1] 21/1
refused [1] 9/8
revenue [2] 4/15 8/19
question [25] 9/18 10/14 10/25 11/7
regarded [1] 10/4
reverberates [1] 5/4
11/14 16/2 16/21 25/2 30/15 30/15
14-31037.2086
schools [5] 15/19 15/20 15/25 30/20

sister-sister [1] 30/10
31/4
sit [1] 53/11
Page 70 of 72
reversed
20/19 33/3
Schuette [9] 31/8 31/9 31/13 31/18
situations [1] 27/6
review [2] 21/21 22/13
31/23 32/7 32/10 38/15 40/1
six [1] 32/11
revised [1] 53/9
SCOTT [5] 1/22 4/16 4/20 54/21 54/22 Sixth [2] 31/21 51/1
revision [1] 20/5
scrutiny [13] 7/8 7/13 7/15 13/25 14/1 Sixth Circuit [2] 31/21 51/1
revolving [1] 55/12
14/2 16/25 21/19 21/23 22/1 22/2 25/7 slavery [3] 27/12 27/16 27/19
Richard [3] 1/19 1/19 4/10
25/13
slightly [1] 53/9
right [85]
se [1] 54/17
Smithkline [1] 7/7
right-to-die [2] 35/17 35/17
seated [1] 4/22
so [34] 5/15 9/12 9/15 10/17 11/8
right-to-marriage [2] 34/15 54/9
second [3] 33/10 41/10 51/18
11/20 11/21 11/22 12/4 14/24 25/25
right-to-marry [1] 56/13
secretary [2] 8/18 8/25
27/21 28/16 29/13 30/2 31/3 33/8
rights [19] 6/15 6/17 7/20 9/7 10/2 10/8 sectarian [12] 15/19 15/20 15/22 15/25 33/20 34/5 35/16 37/17 37/25 40/9
10/9 12/17 12/19 20/16 20/21 20/25
16/22 17/5 17/10 17/13 30/6 30/15
40/16 41/19 45/17 46/3 47/7 48/7
36/21 39/14 39/24 41/5 41/7 41/25
31/4 42/20
48/11 53/8 54/10 55/22 56/21
45/6
Section [9] 1/6 24/16 26/4 26/8 26/9
sobering [1] 20/1
rise [2] 16/12 53/20
26/10 26/13 26/14 28/24
social [4] 15/16 19/14 27/8 43/13
rises [1] 11/12
Section 2 [3] 26/8 26/9 26/10
societal [3] 15/9 15/10 37/16
Robert [2] 4/16 4/20
Section 3 [5] 24/16 26/4 26/13 26/14
society [1] 30/13
Roberts [1] 29/16
28/24
software [1] 2/14
ROBICHEAUX [3] 1/4 4/5 4/11
security [1] 27/8
soldier [1] 17/7
Robles [1] 28/11
see [10] 4/18 17/2 25/24 38/24 50/10 some [22] 4/23 6/7 13/22 16/6 18/24
robustness [1] 44/5
52/15 53/23 55/11 56/16 57/21
21/23 22/3 22/4 22/7 22/9 25/24 27/13
Romer [2] 13/16 25/18
seem [2] 16/19 24/7
34/13 35/13 35/14 43/16 43/24 45/23
room [2] 2/9 53/8
seemed [2] 25/23 55/12
46/1 47/7 48/16 50/15
Roosevelt [1] 45/12
seems [3] 20/7 48/15 48/15
somebody [1] 8/3
root [1] 19/7
send [1] 17/15
someone [1] 34/11
rooted [3] 34/18 34/20 35/24
sense [1] 11/10
something [8] 7/17 20/17 21/11 21/16
roots [1] 28/5
sensitive [4] 31/7 31/10 32/1 38/14
31/7 31/10 38/5 56/24
Rouge [2] 10/23 11/2
separable [2] 48/15 52/16
sometimes [3] 32/4 32/5 33/19
routine [1] 37/12
separate [6] 9/25 48/17 49/24 50/2
somewhat [1] 53/16
rule [6] 48/10 50/19 50/20 51/8 53/3
51/7 52/6
son [3] 14/18 30/9 33/23
56/22
separately [1] 48/9
sorry [3] 4/18 18/8 54/21
Rule 54 [1] 56/22
separation [1] 19/8
sort [13] 5/22 6/3 7/16 9/15 11/14
ruled [3] 5/3 50/23 51/12
serious [2] 48/23 49/10
15/11 26/5 29/5 36/21 39/14 39/17
rules [2] 47/17 50/8
seriously [1] 53/18
59/3 59/6
run [1] 30/24
Sevcik [4] 7/3 7/5 10/23 22/20
Sotomayor [1] 24/7
seven [5] 23/23 24/20 27/1 29/20 36/19 sound [1] 55/23
S
sounded [1] 54/7
said [35] 9/21 10/12 10/20 18/13 20/24 several [2] 21/10 45/25
sex [22] 6/19 9/1 10/14 11/1 12/14
sovereign [3] 28/24 28/25 40/14
25/4 25/11 25/20 25/23 27/2 27/6
15/3
15/12
16/9
21/8
22/11
22/18
sovereignty [1] 40/20
27/19 28/13 29/7 29/9 29/24 30/20
26/21
28/9
28/18
31/12
32/3
37/9
speak [2] 13/12 52/22
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42/17
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46/12
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51/14
speaking [1] 57/16
35/10 35/25 37/15 38/2 38/3 38/5
sexual
[6]
6/10
7/7
7/12
13/10
17/1
speaks [1] 55/18
39/14 40/14 49/3 49/25 54/14 55/9
26/15
specific [3] 12/4 13/13 21/6
same [29] 6/19 9/1 10/9 10/14 11/1
shade
[1]
32/5
specifically [4] 11/19 21/4 21/5 34/6
12/14 15/3 15/12 16/9 21/8 22/11
shape
[1]
29/6
speech [1] 52/14
22/18 26/21 28/9 28/18 31/12 32/3
sharp
[1]
5/1
spend [1] 24/20
37/9 39/24 40/20 44/24 46/12 46/19
shattering
[1]
19/6
spends [1] 23/23
51/14 51/19 52/8 52/11 55/9 58/10
she [1] 9/6
spent [1] 30/1
same-sex [21] 6/19 9/1 10/14 11/1
she's
[1]
9/7
spiritual [1] 12/10
12/14 15/3 15/12 16/9 21/8 22/11
shorthand
[1]
35/18
SPIVEY [4] 1/22 4/16 4/20 54/20
22/18 26/21 28/9 28/18 31/12 32/3
should [10] 21/19 28/23 29/9 33/16
spoken [4] 10/18 33/19 38/23 54/18
37/9 44/24 46/12 46/19 51/14
41/3
43/2
46/18
47/25
48/25
49/4
spouse [2] 12/25 35/22
satisfied [1] 12/2
shouldn't
[1]
23/20
stand [1] 48/16
Save [1] 23/13
show
[1]
14/3
standard [6] 21/21 21/24 22/13 33/7
say [22] 7/16 14/24 15/1 15/18 17/15
showed
[1]
34/11
33/7 33/8
20/20 23/25 26/5 26/19 28/8 29/24
shows [3] 31/5 39/5 40/12
standards [3] 19/20 32/23 44/5
30/3 31/5 31/15 34/3 35/17 36/22
side [4] 5/16 6/6 22/8 29/24
standing [1] 40/8
38/19 40/10 49/12 50/22 55/1
sides
[9]
5/2
5/5
6/2
7/17
11/8
25/24
stands [1] 18/14
saying [8] 11/8 24/11 26/14 36/9 37/8
43/23
56/1
59/21
star [1] 18/22
39/12 39/17 55/9
significance
[2]
12/10
19/6
stare [1] 19/7
says [9] 24/10 26/16 26/16 28/3 28/19
significant [3] 15/10 34/10 39/22
state [82]
28/23 32/5 44/21 45/2
similar
[1]
17/7
state's [3] 9/16 18/5 49/15
Scalia [4] 8/1 8/3 24/7 29/14
simple
[1]
30/3
states [37] 1/1 1/11 5/4 9/25 10/5
scenarios [2] 16/24 17/2
simply [1] 59/5
11/19 21/10 21/11 23/24 24/22 27/2
schedule [2] 53/9 56/8
simultaneous
[3]
56/1
56/12
58/12
27/3 29/3 30/6 30/19 30/21 30/23 31/1
scheduling [1] 49/25
since
[2]
6/17
40/9
31/6 33/11 34/6 34/8 34/22 34/25 35/1
schemes [3] 8/16 8/17 44/25
sir
[1]
13/8
36/12 36/22 37/8 37/14 37/15 37/18
school [6] 15/23 15/23 17/11 17/13
sister
[2]
30/10
30/10
37/25 38/16 39/9 40/14 42/9 60/3
17/16 30/15
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statewide [1] 28/17
tax [7] 8/20 8/21 9/1 23/7 25/19 30/22 38/22 39/6 43/1 43/13 46/6 46/7 46/9
stationed [1] 17/7
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status [1] 8/21
taxpayer [1] 8/24
52/11 53/4 58/10
statute [4] 9/1 14/25 41/19 42/18
tell [4] 4/19 18/23 21/2 51/10
though [10] 17/13 25/22 26/13 33/6
statutory [1] 37/12
telling [1] 19/1
45/12 45/23 46/13 50/11 51/10 54/11
stenography [1] 2/14
temper [1] 32/4
thought [3] 29/14 36/2 58/22
stern [1] 6/3
temperaments [1] 38/4
three [4] 6/24 25/9 30/1 56/12
stigmatic [2] 9/14 9/16
tempestuous [1] 5/15
through [3] 28/16 39/6 45/4
still [7] 12/6 12/11 46/10 46/23 47/1
temptation [1] 19/15
thus [2] 21/24 45/3
47/7 47/24
ten [1] 6/24
TIGCHELAAR [1] 1/15
Stone [1] 1/14
Tenth [1] 30/3
time [6] 9/4 12/14 12/15 39/24 47/9
strand [2] 7/19 7/20
term [1] 36/4
58/10
Street [5] 1/17 1/20 1/23 2/3 2/9
terrific [1] 53/13
timeline [1] 52/2
stress [1] 53/17
test [4] 16/24 17/24 18/4 18/18
times [1] 36/20
strict [2] 14/1 25/7
than [5] 13/2 13/10 31/12 37/12 40/17 today [18] 5/19 6/2 10/10 11/4 16/8
strike [1] 22/10
thank [14] 4/22 5/5 5/8 6/4 40/22 40/23 20/8 22/10 22/24 23/2 46/4 48/8 48/24
stringent [1] 21/22
45/16 45/17 53/11 53/12 53/12 53/13
49/24 53/14 54/19 55/12 55/18 58/23
strong [1] 32/12
53/19 59/21
today's [1] 56/18
strongly [2] 25/13 38/23
that [294]
together [4] 19/4 26/1 29/13 58/16
struck [5] 31/21 41/14 41/18 41/23
that's [62]
Toni [4] 2/8 60/2 60/9 60/9
55/21
their [22] 5/5 5/10 6/10 6/15 6/16 6/16 too [4] 13/22 18/22 21/2 31/1
structural [1] 39/19
8/20 8/21 9/11 12/25 13/3 16/11 18/16 took [1] 21/2
structure [5] 16/12 26/10 38/24 39/25
24/15 24/17 27/4 29/6 30/25 36/11
top [1] 34/24
55/20
44/3 44/19 55/5
touched [1] 15/17
struggle [2] 5/21 11/25
them [10] 19/1 19/1 19/3 24/3 32/2
tradition [3] 9/23 12/20 12/25
studied [1] 5/12
32/4 41/6 52/5 52/9 52/23
traditional [7] 14/12 21/9 22/11 22/17
stumped [1] 20/11
then [19] 6/24 8/5 20/18 23/1 26/19
26/2 26/17 41/20
style [1] 59/9
27/12 27/15 28/19 43/16 43/23 47/18 traditions [1] 35/8
subject [6] 7/8 7/13 10/2 17/23 20/21
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transcript [2] 1/10 60/5
24/23
53/9 56/16
transcription [1] 2/14
submission [2] 19/18 53/10
there [49] 4/18 5/21 7/18 8/7 10/25
transfer [1] 17/17
submissions [2] 33/13 59/20
11/22 12/13 12/24 13/13 15/4 15/8
transferred [2] 15/24 17/11
submit [5] 16/23 51/12 51/14 51/24
17/17 21/6 21/6 21/7 21/13 21/14
treat [2] 44/3 44/18
51/24
22/14 23/16 23/17 25/23 27/6 27/13
treated [3] 9/24 21/8 38/21
submitted [2] 5/7 45/24
30/18 30/21 31/3 33/6 33/7 34/1 34/2 treatment [2] 8/22 16/11
substance [2] 13/1 22/4
34/3 34/18 36/18 39/7 39/12 39/21
true [3] 24/19 30/1 60/4
substantial [2] 8/17 37/16
40/6 40/6 45/25 46/3 46/8 46/10 46/18 trump [1] 39/15
Substantive [1] 35/13
47/7 48/6 49/19 52/17 53/10 56/10
try [2] 10/21 43/19
such [1] 33/8
there's [18] 9/16 10/23 12/6 12/22
trying [7] 16/6 16/13 16/17 18/11 25/12
suggest [2] 16/19 20/14
15/12 16/10 22/10 25/2 30/20 34/1
32/16 57/9
suggesting [3] 13/11 21/7 57/20
34/20 35/24 36/23 37/17 38/9 38/11
turn [1] 13/20
Suite [3] 1/23 2/3 2/6
52/13 56/9
Turner [6] 11/16 12/6 12/6 12/13 13/5
summary [1] 59/6
therefore [4] 7/24 8/21 24/16 49/14
34/16
summer [1] 6/17
these [26] 5/19 6/13 6/14 8/16 9/15
Tusa [4] 2/8 60/2 60/9 60/9
support [2] 12/9 19/20
13/24 16/13 18/9 19/2 22/15 23/4 24/9 two [20] 6/21 8/13 18/21 25/22 25/23
Supreme [19] 5/4 6/17 12/7 14/12
24/10 30/22 36/21 38/13 39/15 44/25
26/1 29/11 29/12 29/12 30/1 35/7 40/6
18/25 24/20 27/10 27/15 30/20 31/3
47/12 47/22 47/24 48/21 49/16 50/1
40/24 43/1 44/25 46/4 48/5 52/17 57/6
31/11 31/17 35/10 35/15 35/18 40/2
52/16 57/5
58/13
41/14 41/18 41/23
they [36] 6/11 6/13 9/4 13/5 15/16
types [1] 14/20
Supreme Court [17] 5/4 12/7 14/12
17/23 19/3 22/3 22/4 22/5 23/21 23/22 U
18/25 24/20 27/10 27/15 30/20 31/3
24/1 28/16 29/11 30/22 33/15 33/15
U.S. [1] 41/14
31/11 31/17 35/15 35/18 40/2 41/14
33/16 37/16 37/19 37/22 38/23 39/2
ultimately [1] 7/24
41/18 41/23
39/5 39/5 39/17 39/17 39/18 41/7
unanswered [1] 45/3
Supreme Court's [1] 6/17
43/12 46/9 46/16 47/24 49/19 53/14
uncle [2] 15/2 33/23
sure [8] 11/6 31/15 48/10 56/21 57/14 thing [3] 31/25 55/9 55/10
58/23 58/25 58/25
things [5] 29/9 34/22 35/19 35/20 48/5 uncle-nephew [1] 15/2
unclear [1] 25/15
sweeping [2] 20/7 26/5
think [52] 8/7 8/10 9/19 10/23 11/3
system [3] 37/4 44/1 44/17
11/13 11/20 11/22 11/24 11/25 11/25 uncomfortable [1] 50/15
unconstitutional [7] 6/20 18/17 20/18
12/20 15/4 17/18 17/20 18/1 18/14
T
22/17 24/16 26/14 42/14
21/10
25/13
25/25
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table [1] 4/14
under [12] 14/1 18/3 18/9 21/24 31/22
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35/14
38/17
39/4
take [8] 8/2 30/12 34/5 38/12 49/12
39/21 40/16 41/1 41/2 42/2 42/25 43/3 34/15 34/16 34/16 34/20 41/20 51/8
51/14 53/18 56/22
53/10
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taken [1] 4/25
underlying
[1] 19/14
51/9 51/22 54/10 54/13 55/16 57/15
takes [1] 36/15
underscore [1] 5/13
57/16
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taking [1] 35/21
understand [16] 5/20 11/5 13/11 16/2
thinking [1] 11/7
talk [5] 8/4 8/5 21/18 34/2 48/13
17/19 24/17 30/14 42/15 43/10 43/21
Thirteenth [1] 27/18
talked [4] 9/14 15/17 42/20 50/12
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wants [2] 51/22 53/24
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understanding [12] 10/6 18/10 23/11
War [2] 11/18 27/10
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27/14 27/25 28/6 28/14 33/17 46/9
warned [1] 20/23
wife [1] 41/23
46/14 58/5 60/5
was [55] 7/9 7/18 7/22 7/24 8/2 10/25 will [23] 5/2 5/13 5/15 5/21 5/24 6/4
undertaken [1] 20/8
11/23 11/24 12/9 12/11 13/4 13/4 13/6 12/1 13/18 29/24 35/12 36/1 40/3 40/5
undisputed [1] 8/5
13/7 20/17 23/7 25/10 25/16 26/4 26/9 40/10 42/7 43/22 43/23 46/3 50/18
unequal [1] 44/25
26/14 26/19 27/5 27/13 27/19 31/3
51/1 54/20 56/15 56/16
unfair [1] 5/17
32/11 32/14 32/15 32/16 32/22 32/22 willing [3] 47/19 48/9 51/20
unflagging [1] 41/6
32/24 32/24 32/25 33/3 37/24 38/2
winded [1] 11/8
unique [1] 46/8
39/13 41/21 42/1 42/2 45/15 45/19
Windsor [95]
UNITED [6] 1/1 1/11 5/4 11/19 29/3
54/6 54/8 55/17 57/9 57/9 57/15 57/16 wise [1] 37/4
60/3
57/16 57/17 58/1 58/5
within [4] 9/24 13/17 27/3 56/12
United States [3] 5/4 11/19 29/3
Washington [1] 2/4
without [5] 14/14 18/16 19/1 41/22
universality [1] 20/2
wasn't [2] 12/13 26/12
47/19
unlike [3] 21/9 42/20 44/25
water [1] 6/7
Wittmann [1] 1/14
unmarried [1] 46/19
Watson [1] 20/24
woman [2] 9/8 36/2
unpopular [1] 7/23
way [23] 11/8 22/22 24/10 26/5 28/8
women [1] 13/10
unquote [1] 36/21
29/9 31/9 33/6 37/2 40/5 44/2 44/18
won [1] 18/21
unresolved [2] 47/25 49/20
45/24 47/25 50/16 50/16 51/3 51/6
won't [1] 11/17
until [2] 20/25 52/25
51/8 53/7 53/13 53/14 55/21
wonder [2] 10/8 10/17
unusual [2] 26/4 26/16
ways [1] 33/19
wondering [2] 8/2 42/10
up [14] 4/25 7/5 10/24 22/5 23/2 31/18 we [83]
word [2] 5/12 16/16
34/11 40/6 47/8 51/1 52/25 54/11 57/7 we'll [2] 53/9 58/16
words [4] 18/23 23/4 32/14 51/13
57/9
weeks [1] 56/12
work [4] 26/1 29/9 31/6 58/16
uphold [1] 40/20
well [54] 6/3 7/9 7/11 7/18 8/1 11/5
world [1] 21/3
urge [1] 13/25
12/22 13/15 14/11 15/8 17/15 17/18
worry [1] 8/10
urged [1] 16/25
18/6 18/12 20/11 21/10 21/18 23/10
would [79]
urging [2] 14/10 14/11
24/25 25/15 25/17 27/23 29/14 29/16 wouldn't [2] 40/18 55/8
us [4] 7/14 37/23 48/15 51/12
29/24 30/3 33/2 33/25 35/7 36/17 38/8 write [1] 36/4
use [5] 15/19 15/19 15/24 16/21 27/7
38/22 39/1 39/14 40/4 42/9 42/11
writes [2] 39/23 39/24
uses [1] 25/18
42/25 46/12 46/23 47/8 47/21 48/18
writing [1] 12/7
using [2] 2/14 30/22
48/25 49/13 49/15 49/21 50/10 50/14 written [3] 16/17 29/2 40/11
usurpation [1] 26/6
52/8 52/17 55/25 58/7 59/20
wrong [3] 32/18 32/19 39/3
usurped [1] 26/17
Welles [2] 4/16 4/20
wrote [5] 9/22 19/1 29/17 36/1 43/17
Utah [1] 39/11
Wendell [1] 38/3
Y
went [5] 7/5 26/4 28/8 28/16 36/4
V
y'all [1] 53/11
were [11] 5/7 9/4 22/21 23/6 30/8
valid [1] 45/8
year [2] 34/12 34/19
31/18
38/21
40/6
53/14
53/22
58/23
validly [1] 43/9
years [3] 16/15 18/21 42/14
weren't [1] 31/17
value [1] 22/22
yes [13] 10/20 12/13 13/8 44/15 48/4
what
[81]
vary [2] 34/6 34/22
52/20 54/15 54/24 56/5 56/25 57/11
What's [6] 15/7 32/19 41/11 41/15
verbatim [2] 43/9 45/10
57/25 58/18
49/22
59/12
versus [2] 1/5 4/6
yet [6] 10/18 19/23 28/13 31/1 38/19
whatever
[7]
7/10
15/23
36/22
47/24
very [17] 4/22 11/8 18/21 30/3 30/24
59/16
48/8 53/14 54/5
32/1 32/1 36/3 39/22 39/23 39/24
York [17] 10/13 23/6 26/22 28/4 28/9
when
[9]
17/16
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28/11 28/13 29/6 29/7 29/8 36/9 37/24
view [6] 19/19 39/16 48/13 48/22 49/3 41/4 41/7 42/1 45/5
38/19 44/21 44/25 45/1 45/2
where [20] 9/11 16/14 17/19 19/12
59/3
York's [1] 28/2
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views [3] 6/1 19/6 53/14
you [127]
30/24 34/14 36/1 36/22 37/25 38/9
violate [2] 6/13 30/16
you're [5] 16/3 16/7 26/18 32/19 54/21
38/13
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violates [4] 5/23 25/3 25/11 28/20
your [95]
whereas
[1]
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Virginia [2] 13/7 34/16
whether [13] 10/25 11/11 21/13 21/21 Your Honor [49] 6/23 6/25 7/11 7/18
virtually [1] 10/4
8/9 8/12 10/11 11/3 11/13 12/5 12/24
21/22 21/22 22/14 48/12 55/13 55/13
vital [1] 19/14
13/8 13/15 15/8 16/3 16/23 17/20 18/2
55/19 56/9 56/17
vote [4] 40/3 40/16 40/20 40/20
19/24 20/12 20/20 21/18 23/19 23/21
which [21] 5/7 6/15 8/24 11/3 13/6
24/5 25/1 25/7 25/23 27/17 34/1 36/17
W
13/25 16/11 22/8 23/7 25/18 26/20
40/18 40/24 42/3 44/7 45/7 45/16
34/23 37/3 37/18 40/20 44/25 45/8
wait [4] 20/25 41/10 57/22 59/18
46/14 47/10 47/16 48/3 49/1 49/21
47/2
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52/6
58/5
waive [3] 47/13 47/14 50/14
50/12 50/18 51/22 52/9 56/9 58/4
while [1] 48/22
waived [1] 57/3
whims [1] 20/22
Z
waiver [2] 48/1 50/13
whiskey [4] 6/7 13/19 23/13 41/1
WALL [2] 1/16 4/9
Zablocki [3] 11/15 12/6 34/16
white [1] 39/21
Walther [1] 1/14
who [17] 5/18 17/4 19/1 19/23 20/12
want [46] 5/5 5/8 6/7 13/19 17/15
27/19 27/19 28/24 29/6 31/18 32/15
21/16 26/13 29/6 33/15 35/6 36/22
35/5 35/14 38/2 38/3 39/23 42/23
40/24 41/2 42/24 46/2 47/12 47/13
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Case 2:13-cv-05090-MLCF-ALC Document 129 Filed 08/05/14 Page 1 of 72

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

JONATHAN P. ROBICHEAUX, et al.

TRANSCRIPT OF ORAL ARGUMENT BEFORE

Stone Pigman Walther Wittmann, LLC

For the Plaintiffs:

Law Office of Richard Perque, LLC

For the Plaintiffs:

SCOTT J. SPIVEY, ESQ.

Case 2:13-cv-05090-MLCF-ALC Document 129 Filed 08/05/14 Page 2 of 72

For the Defendants:

Law Offices of Mike Johnson, LLC

Official Court Reporter:

Toni Doyle Tusa, CCR, FCRR

Proceedings recorded by mechanical stenography using

Case 2:13-cv-05090-MLCF-ALC Document 129 Filed 08/05/14 Page 3 of 72

Dalton Courson, Esq.

Kyle Duncan, Esq.

Dalton Courson, Esq.

Case 2:13-cv-05090-MLCF-ALC Document 129 Filed 08/05/14 Page 4 of 72

(June 25, 2014)

et al. versus Caldwell, et al.

defendants, with Michael Johnson.

table Jason DeCuir, executive counsel, Louisiana Department of

Garth Beauregard, Your Honor.

insatiable national interest.

Good morning, Counsel.

Call the case, please.

Civil Action 13 5090, Robicheaux,

Enter your appearances, Counsel.

plaintiffs with Lesli Harris, John Landis, and Maurine Wall.

Richard Perque on behalf of the

Robicheaux and Blanchard plaintiffs.

Kyle Duncan, on behalf of the

Scott Spivey with Robert Welles and

I didn't see you back there.

Scott Spivey with Robert Welles and

Thank you very much.

Before we begin, please indulge some brief

Case 2:13-cv-05090-MLCF-ALC Document 129 Filed 08/05/14 Page 5 of 72

federal courts in just a few months, and it has generated sharp

opinion on both sides of the contest.

process reverberates at the Supreme Court of the United States.

helpful and professional briefs.

amicus briefs which were submitted at this Court's invitation.

I want to recognize and thank the plaintiffs and

representatives of the State of Louisiana for what I appreciate

federal decisions the parties here underscore.

decide this case as fairly and as impartially as is humanly

possible, and it will do so no matter how tempestuous the

protests or demonstrations by either side; no matter what the

media attention, fair or unfair, accurate or inaccurate.

that leads me to conclude with a reminder to those who are here

in court to observe these proceedings today.

I understand how inflamed one might become about

this constitutional struggle, but there will be no outbursts of

any sort by anyone in this courtroom.

observer violates the conduct expected by this Court, that

person will be immediately removed from this courtroom and the

courthouse and might also, if appropriate, face a fine and

That will no doubt

I want to thank counsel for all sides for their