Supreme Court justices jousted with lawyers over California’s Proposition 8 banning gay marriage, weighing whether marriage should be a national fundamental right, left up to the states or somewhere in between. Of the 80 minutes of legal questioning, here are the 12 best moments.
1. Justice Anthony M. Kennedy weighed in on the effect of the marriage ban on the children of gay couples in a question to supporters of the law: “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?”
2. Kennedy, later challenging the opponents of the ban: “You’re really asking ... for us to go into uncharted waters.”
Attorney Theodore Olson: “It was uncharted waters when this court, in 1967, in the Loving decision said that ... prohibitions on interracial marriages, which still existed in 16 states, were unconstitutional.”
3. Justice Antonin Scalia questioned whether gay marriage could harm children.
“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,” Scalia said.
When Scalia was told that gay couples can adopt in California, he said the case was about the whole country.
“It’s true, but irrelevant. They’re arguing for a nationwide rule, which applies to states other than California, that every state must allow marriage by same-sex couples. And so even though states that believe it is harmful — and I take no position on whether it’s harmful or not, but it is certainly true that — that there’s no scientific answer to that question at this point in time.”
4. Justice Sonia 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?”
Attorney Charles J. Cooper, arguing to keep the ban: “Your honor, I cannot.”