-Submitted by David Drumm (Nal), Guest Blogger
On Tuesday, the Supreme Court heard oral arguments in the other same-sex marriage case, Hollingsworth v. Perrry, a case involving California’s voter approved ban on gay marriage, also known as Prop 8. UCLA professor of constitutional law Adam Winkler reminds us that oral arguments is the time when justices “hostile to a lawyer’s argument often reveal their disagreement through penetrating—sometimes devastating—questions.” Sometimes penetrating, sometimes devastating, and sometimes the court is not pleased.
The players in this display of forensics are the nine Supreme Court justices, Charles J. Cooper defending Prop 8 (Petitioners), Theodore B. Olson on behalf of the Respondents, and Solicitor General of the United States Donald B. Verrilli supporting the Respondents. Transcript is here.
Justice Kagan asks Mr. Cooper: “What harm you see happening and when and how 12 and — what — what harm to the institution of marriage or to opposite-sex couples, how does this cause and effect work?” Mr. Cooper wisely dodges the question by saying that “that we don’t believe that’s the correct legal question before the Court.” But, Justice Salia provided his own answer:
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.
There is no disagreement from the American Academy of Pediatrics which “supports … full adoption and foster care rights for all parents, regardless of sexual orientation.” Benjamin Siegel, a professor of pediatrics at Boston University School of Medicine and co-author of the report for the AAP, asserts that “the data we have right now are good enough to know what’s good for kids.”
JUSTICE KAGAN: In other words, you’re saying, well, if we allow same-sex couples to marry, it doesn’t serve the State’s interest. But do you go further and say that it harms any State interest?
MR. COOPER: Your Honor, we — we go further in — in the sense that it is reasonable to be very concerned that redefining marriage to — as a genderless institution could well lead over time to harms to that institution and to the interests that society has always — has — has always used that institution to address.
Justice Kennedy jumps in to encourage Cooper to admit that no real harms will be done:
JUSTICE KENNEDY: Well, then are — are you conceding the point that there is no harm or denigration to traditional opposite-sex marriage couples? So you’re conceding that.
But, Cooper is having none of that:
MR. COOPER: No, Your Honor, no. I’m not conceding that.
The Plaintiffs’ expert acknowledged that redefining marriage will have real-world consequences, and that it is impossible for anyone to foresee the future accurately enough to know exactly what those real-world consequences would be. And among those real-world consequences, Your Honor, we would suggest are adverse consequences.
Cooper acknowledges that real-world consequences of same-sex marriage are impossible to predict, just before he predicts that some of those consequences will be adverse.
When Justice Breyer who asks “Now, what happens to your argument about the institution of marriage as a tool towards procreation? Given the fact that, in California, too, couples that aren’t gay but can’t have children get married all the time,” Cooper responds:
The concern is that redefining marriage as a genderless institution will sever its abiding connection to its historic traditional procreative purposes, and it will refocus, refocus the purpose of marriage and the definition of marriage away from the raising of children and to the emotional needs and desires of adults, of adult couples.
Adult emotional needs like … love? There are many purposes of marriage, do we want the state determining the purpose of marriage?
Then Justice Kagan administers the coup de grâce:
JUSTICE KAGAN: Well, suppose a State said, Mr. Cooper, suppose a State said that, Because we think that the focus of marriage really should be on procreation, we are not going to give marriage licenses anymore to any couple where both people are over the age of 55. Would that be constitutional?
MR. COOPER: No, Your Honor, it would not be constitutional.
JUSTICE KAGAN: Because that’s the same State interest, I would think, you know. 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?
MR. COOPER: Your Honor, 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 -
The state’s responsibility is to protect viable sperm. Cooper has forgotten the number one rule of law: If the facts are against you, argue the law.