Excerpts from the arguments before the Supreme Court on Tuesday about California’s Proposition 8 ban on same-sex marriage, from a transcript released by the Supreme Court:
On whether the case should be before them (Chief Justice John Roberts and Justice Anthony Kennedy):
ROBERTS: But a state can’t authorize anyone to proceed in federal court, because that would leave the definition under Article III of the federal Constitution as to who can bring — who has standing to bring claims up to each state. And I don’t think we’ve ever allowed anything like that.
KENNEDY: The problem — the problem with the case is that you’re really asking, particularly because of the sociological evidence you cite, for us to go into uncharted waters, and you can play with that metaphor, there’s a wonderful destination, it is a cliff. Whatever that was. … But you’re — you’re doing so in a — in a case where the opinion is very narrow. Basically that once the state goes halfway, it has to go all the way or 70 percent of the way, and you’re doing so in a case where there’s a substantial question on — on standing. I just wonder if — if the case was properly granted.
On the question of children of same-sex parents (Kennedy and Charles Cooper, lawyer for the defenders of Proposition 8):
KENNEDY: I think there’s — there’s substantial — that there’s substance to the point that sociological information is new. We have five years of information to weigh against 2,000 years of history or more. On the other hand, there is an immediate legal injury or legal — what could be a legal injury, and that’s the voice of these children. There are some 40,000 children in California, according to the red brief, that live with same-sex parents, and they want their parents to have full recognition and full status. The voice of those children is important in this case, don’t you think?
COOPER (in response): I certainly would not dispute the importance of that consideration. That consideration especially in the political process, where this issue is being debated and will continue to be debated, certainly, in California. It’s being debated elsewhere. But on that — on that specific question, Your Honor, there simply is no data.
On the issue of same-sex marriage (Justice Samuel Alito):
ALITO: The one thing that the parties in this case seem to agree on is that marriage is very important. It’s thought to be a fundamental building block of society and its preservation essential for the preservation of society. Traditional marriage has been around for thousands of years. Same-sex marriage is very new. I think it was first adopted in The Netherlands in 2000. So there isn’t a lot of data about its effect. And it may turn out to be a — a good thing; it may turn out not to be a good thing, as the supporters of Proposition 8 apparently believe.
On the question of redefining marriage (Justice Antonin Scalia):
SCALIA: Mr. Cooper, let me — let me give you one — one concrete thing. I don’t know why you don’t mention some concrete things. If you redefine marriage to include same-sex couples, you must — you must permit adoption by same-sex couples, and there’s — there’s considerable disagreement among — among sociologists as to what the consequences of raising a child in a — in a single-sex family, whether that is harmful to the child or not. Some states do not — do not permit adoption by same-sex couples for that reason.
On the rights of same-sex couples (Theodore Olson, lawyer for two same-sex couples, and Roberts):
OLSON: This is a measure that walls off the institution of marriage, which is not society’s right. It’s an individual right that this Court again and again and again has said the right to get married, the right to have the relationship of marriage is a personal right. It’s a part of the right of privacy, association, liberty, and the pursuit of happiness.
ROBERTS (in response): I’m not sure, counsel, that it makes — I’m not sure that it’s right to view this as excluding a particular group. When the institution of marriage developed historically, people didn’t get around and say let’s have this institution, but let’s keep out homosexuals. The institution developed to serve purposes that, by their nature, didn’t include homosexual couples. It is — yes, you can say that it serves some of the other interests where it makes sense to include them, but not all the interests. And it seems to me, your friend argues on the other side, if you have an institution that pursues additional interests, you don’t have to include everybody just because some other aspects of it can be applied to them.
On the Constitution and same-sex couples (Olson and Scalia):
SCALIA: The California Supreme Court decides what the law is. That’s what we decide, right? We don’t prescribe law for the future. We decide what the law is. I’m curious, when — when did — when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? Sometimes — some time after Baker, where we said it didn’t even raise a substantial Federal question? When — when — when did the law become this?
OLSON: May I answer this in the form of a rhetorical question? When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools.
SCALIA: It’s an easy question, I think, for that one. At — at the time that the Equal Protection Clause was adopted. That’s absolutely true. But don’t give me a question to my question. (laughter) … When do you think it became unconstitutional? Has it always been unconstitutional?
OLSON: When the California Supreme Court faced the decision, which it had never faced before, is — does excluding gay and lesbian citizens, who are a class based upon their status as homosexuals — is it — is it constitutional.
On sexual orientation (Justice Sonia Sotomayor and Cooper):
SOTOMAYOR: Outside of the marriage context, can you think of any other rational basis, reason, for a state using sexual orientation as a factor in denying homosexuals benefits or imposing burdens on them? Is there any other rational decision-making that the government could make? Denying them a job, not granting them benefits of some sort, any other decision?
COOPER (in response): I cannot. I do not have any — anything to offer you in that regard. … We are saying the interest in marriage and the — and the state’s interest and society’s interest in what we have framed as responsible procreation is — is vital, but at bottom, with respect to those interests, our submission is that same-sex couples and opposite-sex couples are simply not similarly situated.
On procreation and age (Justice Elena Kagan and Cooper, and later Scalia):
KAGAN: If you are over the age of 55, you don’t help us serve the government’s interest in regulating procreation through marriage. So why is that different?
COOPER: Even with respect to couples over the age of 55, it is very rare that both couples — both parties to the couple are infertile, and the traditional — (laughter.)
KAGAN: No, really, because if the couple — I can just assure you, if both the woman and the man are over the age of 55, there are not a lot of children coming out of that marriage. (laughter)
COOPER: Society’s interest in responsible procreation isn’t just with respect to the procreative capacities of the couple itself. The marital norm, which imposes the obligations of fidelity and monogamy, Your Honor, advances the interests in responsible procreation by making it more likely that neither party, including the fertile party to that —
KAGAN: Actually, I’m not even —
SCALIA: I suppose we could have a questionnaire at the marriage desk when people come in to get the marriage — you know, Are you fertile or are you not fertile? (laughter) I suspect this court would hold that to be an unconstitutional invasion of privacy, don’t you think?
KAGAN: Well, I just asked about age. I didn’t ask about anything else. That’s not — we ask about people’s age all the time.
COOPER: Your Honor, and even asking about age, you would have to ask if both parties are infertile. Again —
SCALIA: Strom Thurmond was — was not the chairman of the Senate committee when Justice Kagan was confirmed. (laughter)
