Oral “Arguments” In The Prop 8 Case

-Submitted by David Drumm (Nal), Guest Blogger

500px-Seal_of_the_United_States_Supreme_CourtOn 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.

H/T: Adam Winkler, Scott Eric Kaufman, Scott Aikin, Ezra Klein, Sandhya Somashekhar, Michael LaBossiere.

127 thoughts on “Oral “Arguments” In The Prop 8 Case”

  1. Blouise,

    In re Bob: Probably. It’s right up his alley as Rousseau, Hobbes and Locke are all closely related philosophically to his drinking buddy Kant.

    In re: the Social Compact

    It is a widely misunderstood/unknown subject, especially to laymen. I’ll put it in my “for consideration” list, but it may be a bit before I get to it. I’ve still got a couple of major (non-supplement) installments in the Propaganda Series to do, including one that’s 90% finished and has been sitting for almost two months (I’ve got the dreaded writer’s block on it) and this coming weekend I’ve already got a topic selected. But I think the social compact certainly merits a column of its own. I know this for certain: I’m ready to write a column again after a couple of weeks off (for reasons mostly out of my control as you already know). All work and no play makes Homer go sumthin’ sumthin’. 😀

    I think the observation that Moody’s analysis probably mirrors some of the discussions between Madison and Jefferson is a good one too and reflected in “the final product” as it were.

  2. Gene,

    Good … I’m glad you found it intriguing. I stumbled on it through google and thru a combination of key words which I can’t remember for the life of me. It was stuck in the middle of a series of rightwing junk links on the search page and I almost didn’t click on it but saw Moody’s name in the short description and figured it would be worth a peruse. (I’m certain my key words contained the word tyranny which is how I ended up with a list of so many right-wing sites)

    His words in the Forward caught my curiosity “This little treatise is part of a longer work I undertook some time ago without taking stock of my abilities, and have long since abandoned. Of the various selections that could have been drawn from what had been completed, this is the most considerable, and, it appears to me, the one least unworthy of being offered to the public. The rest no longer exists.” … thus, I suspect it is a work that was abandoned or more than likely absorbed into his other works and it’s still just hanging out on the web.

    Moody’s scholarship is firm and I found his analysis intriguing also. The social compact/contract seems to be an area little understood by many on this blog which is also the state I found myself in when I first started reading this blog 5 or so years ago.

    I can see within Moody’s analysis something of what perhaps Jefferson but most assuredly, Madison might have seen and debated and I looked to that with an eye especially on understanding what they might have seen as “tyranny”. As noted in my original post to you, I was spurred towards this matter by your words “What makes our particular social compact unique in history is that it is founded upon the usurpation of tyranny”.

    At any rate, I will await your further study of the material … perhaps a column on the social compact … :mrgreen:

    I’d like to bring Bob into the discussion. Do you think he would find the paper intriguing enough to offer an opinion?

  3. Blouise,

    Just to draw tighter focus on what you wish to discuss from your link to the annotated “On the Social Contract” by Rousseau, are these the comments of Prof. Moody that you wish to talk about?

    “Surrendering all one’s rights sounds ominous, as dictatorial as Hobbes. It appears to give the state free rein to do what it wishes and, for some readers, has made Rousseau into an apologist for tyranny. Locke’s contract makes us feel safer, because it retains some “inalienable” rights for individuals.

    But the state has free rein to do only what is consistent with the general will, the public interest. And the contract is not between individuals and a state which is somehow “above” them—it is a contract that transfers rights from the individual to the collection of individuals. Locke e.g. says that one way tyranny occurs is when the rulers rule in their own interest rather than the interest of the people. (Plato said the same thing—many of the provisions in the Republic such as common property among the philosopher-kings are designed to remove the possibility of the rulers having interests separate from or opposed to the interests of the people.) Rousseau’s sovereign is the people seen as a collective body—it can have no interests of its own, no interests other than those of the people themselves—the general will. So it cannot act in its own interests contrary to the interests of the people.

    All transfer the same rights, no one retains any rights that no one else has. Rousseau sees protection here in equality. Any burden placed on one is placed on all: so no one would have any interest in oppressing anyone, since that would mean oppressing himself.

    [. . .]

    So if rights were reserved, any time there was a dispute over rights, the body politic would dissolve and citizens would return to the state of nature. Locke in fact agrees with this. He says that if the state and citizens disagree over whether rights have been violated by the state, since there is no one, no institution, to judge between them, the only appeal is “to heaven,” that is, to civil war. Society returns to the state of nature. Unlike Rousseau, Locke did not see this as a defect in his contract.

    How is this problem solved in our nation?

    [. . .]

    Rousseau’s worry is much more over the loss of liberty that comes from personal dependence than it is over state tyranny. He is writing in an age where in France, feudalism is not quite dead, and many people are dependent on the good will of a lord or patron for their livelihoods and prospects. This leaves one open to the arbitrary demands of the lord, whereas law treats everyone equally and predictably.

    If, therefore, one eliminates from the social compact whatever is not essential to it, one will find that it is reducible to the following terms. Each of us places his person and all his power in common under the supreme direction of the general will; and as one we receive each member as an indivisible part of the whole.

    [. . .]

    The body politic is what results when assorted independent individuals agree to be one people and to live together under the same laws. Locke took the same view: that a contract among individuals was necessary to create a body politic and that each member had to freely consent to enter this body.”

    BTW, overall, Prof. Moody provides a very interesting analysis. I bookmarked that link for future use and further consideration. Where’d you stumble across that? I’ve got Rousseau’s work(s) already bookmarked from elsewhere on the web in their “raw” form, but that’s one I’d never seen. Google? Bing? Yahoo?

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