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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.”
5. Cooper on why voters acted reasonably in imposing the ban: “Consider the California voter, in 2008, in the ballot booth, with the question before her whether or not this age-old bedrock social institution should be fundamentally redefined, and knowing that there’s no way that she or anyone else could possibly know what the long-term implications of — of profound redefinition of a bedrock social institution would be. That is reason enough, your honor, that would hardly be irrational for that voter to say, I believe that this experiment, which is now only fairly four years old, even in Massachusetts, the oldest state that is conducting it, to say, I think it better for California to hit the pause button and await additional information from the jurisdictions where this experiment is still maturing.”
6. There was laughter over a hypothetical posed by Justice Elena Kagan to Cooper: “What about heterosexual couples who marry over the age of 55, past the age of procreation?”
Cooper: “Your honor, even with respect of 55, it is very rare that both ... parties to the couple are infertile and ...”
Kagan replied, to laughter, “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.”
Scalia later interjected, “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?’”
7. Scalia: “You are asking us to impose this on the whole country.”
Solicitor General Donald B. Verrilli Jr.: “No, respectfully Justice Scalia, we are not.”
8. Justice Samuel Alito, admonishing Verrilli’s nuanced stand on whether a gay marriage ban might be OK in some states but not others: “I don’t think you can have it both ways.”
9. Olson, on the heart of his argument against bans on gay marriage: “It walls-off gays and lesbians from marriage, the most important relation in life, according to this court, thus stigmatizing a class of Californians based upon their status and labeling their most cherished relationships as second-rate, different, unequal and not OK.”
Chief Justice John Roberts: “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.”
10. Scalia: “I’m curious, when — when did — when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the 14th Amendment was adopted?
Olson: “When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools?”
11. Olson, on why the label marriage is important: “It is like you were to say you can vote, you can travel, but you may not be a citizen. There are certain labels in this country that are very, very critical. You could have said in the Loving case, what — you can’t get married, but you can have an interracial union.”
12. Alito: “On a question like that, of such fundamental importance, why should it not be left for the people, either acting through initiatives and referendums or through their elected public officials?”